Olson v. Bismarck Parks & Recreation Dist.

• Decision Date: 16 April 2002
• Docket Number: No. 20010249.,20010249.
• Citation: 2002 ND 61,642 N.W.2d 864
• Parties: Kathleen A. OLSON and Amy Howard, Plaintiffs and Appellants, v. BISMARCK PARKS AND RECREATION DISTRICT, Defendant and Appellee.
• Court: North Dakota Supreme Court

642 N.W.2d 864

2002 ND 61

Kathleen A. OLSON and Amy Howard, Plaintiffs and Appellants, v. BISMARCK PARKS AND RECREATION DISTRICT, Defendant and Appellee.

No. 20010249.

Supreme Court of North Dakota.

April 16, 2002.

Orell D. Schmitz, Schmitz, Moench & Schmidt, Bismarck, for plaintiffs and appellants.

Ronald F. Fischer, Pearson Christensen, Grand Forks, for defendant and appellee.

Douglas A. Bahr (on brief), Solicitor General and Reid Alan Brady (on brief), Assistant Attorney General, Attorney General's Office, Bismarck, for amicus curiae.

KAPSNER, Justice.

[¶ 1] Kathleen A. Olson and Amy Howard appealed from a summary judgment dismissing their negligence action against the Bismarck Parks and Recreation District ("District") because the District was immune from suit. We conclude, under the circumstances of this case, the limited liability afforded the District for recreational use of property under N.D.C.C. ch. 53-08 does not violate the equal protection provisions of N.D. Const. art. 1, § 21, and we affirm.

I

[¶ 2] On November 26, 2000, Olson and Howard were seriously injured while sledding on a hill at Bismarck's Tom O'Leary golf course, which is owned, operated, and maintained by the District. During the winter, about 100 acres of the Tom O'Leary Recreational Complex are open free of charge to the general public for sledding, snowboarding, tobogganing and cross-country skiing. The hill has not been altered from its natural state and is not groomed or maintained for sledding. Signs posted at the top of the hill cautioned people, "SLIDE AT YOUR OWN RISK," "NOT RESPONSIBLE FOR ACCIDENTS," "INJURY MAY RESULT FROM HIGH SPEEDS," and "USE EXTREME CAUTION."

[¶ 3] Olson and Howard sued the District, claiming it negligently failed to maintain the sledding area in a safe and hazard-free condition for its users. The District contended the lawsuit was barred by the recreational use immunity statutes, N.D.C.C. ch. 53-08. Olson and Howard moved for partial summary judgment declaring the recreational use immunity statutes unconstitutional as violative of their equal protection rights. The District also moved for summary judgment requesting the court to dismiss the lawsuit based on the recreational use immunity statutes. The trial court concluded the recreational use immunity statutes are constitutional, granted the District's motion for summary judgment, and dismissed the lawsuit. Olson and Howard appealed.

II

[¶ 4] Summary judgment is a procedural device for promptly and expeditiously disposing of an action without a trial if either party is entitled to judgment as a matter of law and no dispute exists as to either the material facts or the reasonable inferences to be drawn from undisputed facts, or resolving the factual disputes will not alter the result. Anderson v. Meyer Broadcasting Co., 2001 ND 125, ¶ 14, 630 N.W.2d 46. Whether a statute is constitutional presents a question of law which is fully reviewable on appeal. State v. Burr, 1999 ND 143, ¶ 9, 598 N.W.2d 147.

A

[¶ 5] The relevant provisions of N.D.C.C. ch. 53-08 state:

Subject to the provisions of section 53-08-05, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.

N.D.C.C. § 53-08-02.

Subject to the provisions of section 53-08-05, an owner of land who either directly or indirectly invites or permits without charge any person to use such property for recreational purposes does not thereby:

1. Extend any assurance that the premises are safe for any purpose;

2. Confer upon such persons the legal status of an invitee or licensee to whom a duty of care is owed; or

3. Assume responsibility for or incur liability for any injury to person or property caused by an act or omission of such persons.

N.D.C.C. § 53-08-03.

Nothing in this chapter limits in any way any liability which otherwise exists for:

1. Willful and malicious failure to guard or warn against a dangerous condition, use, structure, or activity; or

2. Injury suffered in any case when the owner of land charges the person or persons who enter or go on the land other than the amount, if any, paid to the owner of the land by the state.

N.D.C.C. § 53-08-05.

In this chapter, unless the context or subject matter otherwise requires:

1. "Charge" means the amount of money asked in return for an invitation to enter or go upon the land.

2. "Land" includes all public and private land, roads, water, watercourses, and ways and buildings, structures, and machinery or equipment thereon.

3. "Owner" includes tenant, lessee, occupant, or person in control of the premises.

4. "Recreational purposes" includes any activity engaged in for the purpose of exercise, relaxation, pleasure, or education.

N.D.C.C. § 53-08-01.

[¶ 6] Almost all states have statutes that limit a landowner's liability for personal injury suffered by a person using the land recreationally. Robin C. Miller, Annotation, Effect of Statute Limiting Landowner's Liability for Personal Injury to Recreational User, 47 A.L.R.4th 262 (1986). Generally, the statutes are "intended to reduce the growing tendency of landowners to withdraw land from recreational access by removing the risk of gratuitous tort liability that a landowner might run unless he could successfully bar any entry to his property for enumerated recreational uses." 62 Am.Jur.2d Premises Liability § 119 (1990) (footnote omitted). The recreational use immunity statutes were first enacted in North Dakota in 1965, and were also intended to "encourage landowners to make available to the public, land and water areas and other property for recreational purposes by limiting their liability toward users." 1965 N.D. Sess. Laws ch. 337.

[¶ 7] This Court has previously construed the recreational use immunity statutes. In Stokka v. Cass County Elec. Coop., Inc., 373 N.W.2d 911, 915-16 (N.D. 1985), this Court upheld the constitutionality of the provisions of N.D.C.C. ch. 53-08 in effect at that time as applied to a private landowner, but ruled there was a genuine issue of material fact whether the landowner was "[w]illful or malicious" in failing to guard or warn against a dangerous condition, rendering improper a summary judgment dismissing the plaintiff's personal injury action. In Fastow v. Burleigh County Water Res. Dist., 415 N.W.2d 505, 508-09 (N.D.1987), this Court relied on Umpleby v. United States, 806 F.2d 812 (8th Cir.1986), in concluding the protection of the recreational use immunity statutes applied to political subdivisions, but held the political subdivision in that case had waived immunity by purchasing liability insurance.

[¶ 8] In 1993, the Legislature first amended the statutes by changing the language of N.D.C.C. § 53-08-05(1) from "[w]illful or malicious" to "[w]illful and malicious." 1993 N.D. Sess. Laws ch. 503, § 1. After this Court abrogated sovereign immunity in Bulman v. Hulstrand Const. Co., Inc., 521 N.W.2d 632 (N.D.1994), the Legislature again amended the statutes. In 1995, the Legislature changed the definition of "[l]and" in N.D.C.C. § 53-08-01 to include "all public and private land," and amended the definition of "[r]ecreational purposes" to its present form. 1995 N.D. Sess. Laws ch. 162, § 7. The amendment to the definition of land was intended to clarify that the statutes provide "a limitation of liability for all landowners, regardless of whether they are private or public." Hearing on S.B. 2127 Before the Senate Agriculture Comm., 54th N.D. Legis. Sess. (Jan. 5, 1995) (testimony of Robert Olheiser, State Land Commissioner). In Hovland v. City of Grand Forks, 1997 ND 95, ¶¶ 8, 17, 563 N.W.2d 384, a majority of this Court ruled the Fastow court's discussion of N.D.C.C. ch. 53-08 and political subdivisions was "dictum," and ruled the pre-1995 version of the recreational use immunity statutes did not apply to political subdivisions. The present case is the first time we have been squarely confronted with a challenge to the constitutionality of the statutes as amended in 1995 and applied to a public landowner.

B

[¶ 9] Olson and Howard argue N.D.C.C. ch. 53-08 violates our state equal protection guarantee, N.D. Const. art. I, § 21, which provides:

No special privileges or immunities shall ever be granted which may not be altered, revoked or repealed by the legislative assembly; nor shall any citizen or class of citizens be granted privileges or immunities which upon the same terms shall not be granted to all citizens.

[¶ 10] A facially neutral statute may violate equal protection in its application or effect. State v. Wilt, 371 N.W.2d 159, 160 (N.D. 1985); State v. Mathisen, 356 N.W.2d 129, 133 (N.D.1984). Generally, a party may only challenge the constitutionality of a statute as applied to that party. State v. Dvorak, 2000 ND 6, ¶ 28, 604 N.W.2d 445; Tooz v. State, 76 N.D. 599, 607, 38 N.W.2d 285, 290 (1949). Consequently, when addressing equal protection challenges to legislation, we have often noted a person to whom a statute constitutionally may be applied cannot challenge the statute on the ground that it might conceivably be applied unconstitutionally to others. First Bank of Buffalo v. Conrad, 350 N.W.2d 580, 584 (N.D.1984); State v. Morris, 331 N.W.2d 48, 58 (N.D.1983); State v. Unterseher, 255 N.W.2d 882, 886 (N.D.1977); State v. Amerada Petroleum Corp., 71 N.W.2d 675, 680 (N.D.1955); Benson v. Schneider, 68 N.W.2d 665, 670 (N.D.1955); Asbury Hosp. v. Cass County, 72 N.D. 359, 392, 7 N.W.2d 438, 456 (1943).

[¶ 11] All regularly enacted statutes carry a strong presumption of constitutionality, which is conclusive unless the party challenging the statute clearly demonstrates that it contravenes the state or federal constitution. In re M.D., 1999 ND 160, ¶ 25, 598 N.W.2d 799. When a statute is challenged on equal protection grounds and an important...