Lorshbough v. Township of Buzzle

• Decision Date: 19 August 1977
• Docket Number: No. 46686,46686
• Citation: 258 N.W.2d 96
• Parties: Duane LORSHBOUGH, et al., Respondents, v. TOWNSHIP OF BUZZLE, et al., Defendants. COUNTY OF BELTRAMI, et al., defendants and third-party plaintiffs, Appellants, v. Carson BERGLUND, et al., third-party defendants.
• Court: Minnesota Supreme Court

Page 96

258 N.W.2d 96

Duane LORSHBOUGH, et al., Respondents, v. TOWNSHIP OF BUZZLE, et al., Defendants.

COUNTY OF BELTRAMI, et al., defendants and third-party plaintiffs, Appellants, v. Carson BERGLUND, et al., third-party defendants.

No. 46686.

Supreme Court of Minnesota.

Aug. 19, 1977.

Syllabus by the Court

In the circumstances of this case, defendants could have owed plaintiffs individually a duty of care, apart from a duty owed to the public in general, where defendants had actual knowledge of and were in a position to abate a condition that violated PCA regulations, foreseeably threatened a risk of serious harm to plaintiffs, and arose from property maintained as a public dumping site.

Powell, Drahos & Baer, Romaine R. Powell and Carl C. Drahos, Cann, Schmidt & Weddel, Bemidji, for appellants.

Grose, Von Holtum, Von Holtum, Sieben & Schmidt, Harry Sieben, Jr. and David A. Stofferahn, Minneapolis, Jack Fena, Hibbing, for respondents.

Donald A. Kannas, Sp. Asst. Atty. Gen., St. Paul, for third-party defendants.

Heard and considered by the court en banc.

KELLY, Justice.

This is an action charging the Township of Buzzle and its officers, and the County of Beltrami and its commissioners with negligent maintenance of the township dump. Their maintenance allegedly precipitated a fire in the dump that subsequently spread to and damaged plaintiffs' property. Defendant county and its commissioners appeal pursuant to Rule 103.03(i), Rules of Civil Appellate Procedure, from an order of the district court denying their motions for summary judgment.

On May 4, 1973, a fire of unknown origin began to burn in the Buzzle Township dump, near the Village of Pinewood in Beltrami County. It was contained within the dump that day and on May 5 covered with earth by a bulldozer. The fire continued to smolder, however, and it was monitored by the Department of Natural Resources, and a local man placed at the department's disposal. Additional garbage was dumped at the site even though cracks developed in the earth covering. On May 15, a gust of wind swept burning straw from under the earth covering to garbage on top, which ignited and sparked nearby weeds and timber. A forest fire ensued, destroying various real and personal property belonging to plaintiffs who lived nearby.

The trial court found that the only negligence by the county concerned its compliance with Minn. St. c. 400 and regulations promulgated by the Pollution Control Agency (PCA) with respect to solid waste disposal. The County Solid Waste Management Act of 1971 requires counties to enforce solid waste regulations within their jurisdictions. Minn. St. 400.06. ¹ Beltrami County took some steps in this regard. John Kemp, the county highway engineer, was appointed solid waste officer. His assistant, Wesley Djonne, inspected the dumps in Beltrami County in late August and early September 1971 in preparation for drawing up a preliminary solid waste management plan in accordance with Minn. Reg. SW 11(3). ² The inspection revealed that many of the approximately thirty dumps in the county were not in compliance with PCA requirements; indeed, Djonne found only one dump operating with a PCA permit. He noted that the Buzzle dump presented a "Potential Fire Hazard (Pine Trees)." However, no burning of garbage apparently had occurred at the Buzzle dump, though it had at others. The record is unclear regarding the actions thereafter taken by the county, but it is evident the county did not take immediate steps to enforce the PCA regulations.

Defendants argue that instead of concentrating on closing the nonconforming dumps, the county attempted to provide a necessary alternative landfill for garbage destined for the closed dumps. In any event, the county negotiated a stipulated agreement with the PCA, dated May 14, 1973, extending the deadline for a final solid waste management plan from July 1, 1972, until January 1, 1974. At the time of the fire in May 1973, the Buzzle dump had no PCA permit nor does it appear to have then met other PCA regulations. The dump was closed 6 weeks after the fire, apparently at the request of the county solid waste officer and PCA official.

Plaintiffs commenced this action to recover damages for losses caused by the fire. Each of the defendants moved for summary judgment. The court granted the motion of the township and its officers on the basis of governmental immunity, but denied the other motions. It did, however, certify as important and doubtful the question whether defendant county and its commissioners owed plaintiffs a duty under Minn. St. c. 400 and the PCA regulations, thus permitting this appeal.

Plaintiffs' negligence action relies on statutes and regulations to provide defendants' duty of care. An unexcused violation of a statute that establishes a standard of care is negligence, and liability is the consequence if proximate causation is proved. See, Dart v. Pure Oil Co., 223 Minn. 526, 532, 27 N.W.2d 555, 558 (1947). Part of the determination that the statute supplies a standard of care involves an analysis whether the plaintiff belongs to the class of persons the legislature intended to protect by enacting the statute. Restatement, Torts 2d, § 286; see, Akers v. Chicago, St. P., M. & O. Ry. Co., 58 Minn. 540, 544, 60 N.W. 669, 670 (1894). That is the sole issue certified to this court on appeal and asserted as the issue by plaintiffs. ³ Only the issue certified is properly before the court. Pierce v. Foley Bros. Inc., 283 Minn. 360, 368, 168 N.W.2d 346, 351 (1969).

Defendants look to Hoffert v. Owatonna Inn Towne Motel, Inc., 293 Minn. 220, 199 N.W.2d 158 (1972), for the law generally applicable to this situation. In Hoffert, the plaintiffs were guests at a motel that had been recently remodeled. The owners of the motel had submitted their proposal for improvements to the City of Owatonna. The city engineer and building inspector then examined the motel and issued a building permit. The building inspector also examined the premises during construction. Two weeks after his last inspection, a fire broke out in the motel and the plaintiffs alleged they were trapped on the second floor because of improper stairway enclosures constructed in violation of the building code. In affirming the dismissal of the complaint and third-party complaint against the city, we stated:

" * * * In order to recover against the city, appellants must show a breach of some duty owed them in their individual capacities and not merely a breach of some obligation owed the general public." 293 Minn. 222, 199 N.W.2d 160.

The purpose of the building code was to protect the public and it was "not meant to be an insurance policy by which the municipality guarantees that each building is built in compliance with the building codes and zoning codes." 293 Minn. 223, 199 N.W.2d 160. Since the building code ordinances did not create a duty owed plaintiffs as individuals, they could not recover for the alleged negligence of the city's employees. The public duty doctrine, as advanced in Hoffert, is also the law of other jurisdictions. E. g., Modlin v. Miami Beach, 201 So.2d 70 (Fla. 1967); Duran v. City of Tucson, 20 Ariz.App. 22, 509 P.2d 1059 (1973); Massengill v. Yuma County, 104 Ariz. 518, 456 P.2d 376 (1969); Restatement, Torts 2d, § 288(b) (no liability attaches if the statute exclusively "secure(s) to individuals the enjoyment of rights or privileges to which they are entitled only as members of the public"). See, also, Annotation, 46 A.L.R.3d 1084.

The district court in attempting to distinguish Hoffert pointed to the "rather unbelievable" conduct of the county's solid waste officer and his assistant. From the inspection, they learned that the Buzzle dump did not comply with PCA regulations, and indeed was a potential fire hazard, but they did nothing to secure compliance or close the dump. The court could legitimately have found that the county officers had actual knowledge of the danger to plaintiffs property that was created by the township dump.

Courts have recognized situations in which a plaintiff has distinguished himself from other members of the public and thus prevented application of the public duty doctrine. Such cases usually involve some sort of contact between the governmental unit and the plaintiff which usually induces detrimental reliance by the individual. ⁴ There was no evidence of any communication between plaintiffs and the county regarding the dangerous condition of the dump. Hence, plaintiffs must rely only on the statute and regulations to establish a duty owed them in their individual capacity.

Plaintiffs' position, however, is not without support. Defendants had actual knowledge of a dangerous condition, a fact not present in Hoffert ⁵ and a fact making certain cases which find such a duty more relevant. One such case is Corridon v. City of Bayonne, 129 N.J.Super. 393, 324 A.2d 42 (1974), in which an off-duty, intoxicated police officer shot and killed a man with his service revolver while conversing with him in a bar. Police regulations required that the officer always carry his service revolver. There was evidence that the city knew or might reasonably have known of the officer's bouts of intoxication in public places during his 6 years of service with the department. The court found that a duty might be found on these facts:

" * * * It is clear that the hazard of firearms is so extraordinarily great that a municipality has a plain duty of care in its supervision of those whom it arms. * * * The duty is one to abate such an extraordinary risk if in related circumstances danger to others is reasonably to be perceived." 129 N.J.Super. 397, 324 A.2d 44.

Another such case is Campbell v. City of Bellevue, 85 Wash.2d 1, 530 P.2d 234 (1975). There, the plaintiff's neighbor electrically lighted a creek that ran through his property. A dead raccoon was found one day in the creek. Its electrocution was reported to the...