Saltsman v. Sharp

• Decision Date: 07 September 2011
• Docket Number: No. 20100404.,20100404.
• Citation: 803 N.W.2d 553,2011 ND 172
• Parties: Patricia SALTSMAN, Plaintiff and Appellantv.Lisa SHARP, Defendant.andEd Hasche, Defendant and Appellee.
• Court: North Dakota Supreme Court

803 N.W.2d 553

2011 ND 172

Patricia SALTSMAN, Plaintiff and Appellant

v.Lisa SHARP, Defendant.andEd Hasche, Defendant and Appellee.

No. 20100404.

Supreme Court of North Dakota.

Sept. 7, 2011.

David S. Maring (argued), Bismarck, ND, for plaintiff and appellant.James S. Hill (argued) and Paul R. Sanderson (appeared), Bismarck, ND, for defendant and appellee Ed Hasche.

KAPSNER, Justice.

[¶ 1] Patricia Saltsman appealed the district court summary judgment and dismissal of her case against Ed Hasche. Saltsman argued the district court erroneously decided Hasche, a landowner, did not owe a duty toward Saltsman as a lawful entrant on Hasche's land. Saltsman also argued the district court made improper findings of fact to support the summary judgment in favor of Hasche. We reverse the summary judgment in favor of Hasche, and we remand for further proceedings in accordance with this opinion.

I

[¶ 2] Saltsman rode her bicycle on a sidewalk next to an apartment building and parking lot owned by Hasche. Hasche had constructed a chain-link fence with vertical “privacy slats” parallel to the sidewalk in order to provide more privacy for the tenants who parked their vehicles in the parking lot next to the apartment building. Lisa Sharp, traveling in a vehicle, exited the building's parking lot and stopped in the driveway while across the sidewalk. Saltsman collided with Sharp's vehicle and sustained injuries.

[¶ 3] Saltsman sued Sharp and Hasche to recover for her personal injuries. Saltsman and Sharp settled, and the case against Sharp was dismissed. Saltsman's suit against Hasche continued. Saltsman alleged Hasche was negligent in maintaining his property, and the fence obstructed the view of drivers exiting the parking lot and of persons on the sidewalk unable to see if a vehicle was exiting. Hasche moved for summary judgment. On the issue of whether he owed a duty toward Saltsman, Hasche argued Saltsman was not on his property when she was injured, she was not directly injured by his property, his fence was lawful, and no special relationship existed between Hasche and Saltsman that would create a duty. In reply, Saltsman argued Hasche owed a duty to her to maintain his property in a reasonably safe condition because he was a landowner and she was a lawful entrant on his property. The district court granted the motion for summary judgment and dismissed Saltsman's claims, stating a landowner does not owe a duty to protect a passerby on a sidewalk adjacent to the landowner's property from the acts of an independent negligent driver. Saltsman appealed.

II

[¶ 4] Saltsman appealed the summary judgment in favor of Hasche.

Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. A party moving for summary judgment has the burden of showing there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In determining whether summary judgment was appropriately granted, we must view the evidence in the light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences which can reasonably be drawn from the record. On appeal, this Court decides whether the information available to the district court precluded the existence of a genuine issue of material fact and entitled the moving party to judgment as a matter of law. Whether the district court properly granted summary judgment is a question of law which we review de novo on the entire record.Brown v. Montana–Dakota Utilities, Co., 2011 ND 38, ¶ 3, 794 N.W.2d 741 (quoting Missouri Breaks, LLC v. Burns, 2010 ND 221, ¶ 8, 791 N.W.2d 33).

[¶ 5] “Negligence actions are ordinarily inappropriate for summary judgment because they involve issues of fact.” Botner v. Bismarck Parks & Recreation Dist., 2010 ND 95, ¶ 8, 782 N.W.2d 662 (quoting Groleau v. Bjornson Oil Co., Inc., 2004 ND 55, ¶ 6, 676 N.W.2d 763). “Even undisputed facts do not justify summary judgment if reasonable differences of opinion exist as to the inferences to be drawn from those facts.” Doan v. City of Bismarck, 2001 ND 152, ¶ 7, 632 N.W.2d 815 (citing Helbling v. Helbling, 267 N.W.2d 559, 561 (N.D.1978)). Where questions of negligence are in issue, summary judgment is improper “if there is any doubt as to the existence of a genuine issue of material fact, or if differing inferences can be drawn from the undisputed evidence.” Barsness v. Gen. Diesel & Equip. Co., Inc., 383 N.W.2d 840, 844 (N.D.1986). However, “[i]ssues of fact may become issues of law if reasonable persons could reach only one conclusion from the facts.” Doan, at ¶ 7 (citing Fetch v. Quam, 2001 ND 48, ¶ 8, 623 N.W.2d 357).

III

[¶ 6] Saltsman argued Hasche owed her a duty as a matter of law under general negligence principles and under premises liability law. Alternatively, Saltsman argued if Hasche did not owe her a duty as a matter of law, there were at least disputed issues of material fact that needed to be resolved on whether Hasche owed her a duty.

[¶ 7] “An actionable negligence consists of a duty on the part of an allegedly negligent party to protect the plaintiff from injury, a failure to discharge that duty, and a resulting injury proximately caused by the breach of the duty.” Botner, 2010 ND 95, ¶ 10, 782 N.W.2d 662 (quoting Azure v. Belcourt Pub. Sch. Dist., 2004 ND 128, ¶ 9, 681 N.W.2d 816). The district court granted summary judgment and dismissed the case on the issue of duty. Therefore, we do not address the other elements of negligence on appeal.

[¶ 8] Saltsman had alleged, “Hasche was negligent, among other ways, by failing to maintain his property in a safe condition and obstructing the view of motorists leaving the parking lot.” In support of his motion for summary judgment, Hasche argued his fence was lawful and did not violate any statutes or ordinances. Hasche argued Sharp was the negligent party, and he had no duty to control Sharp or protect Saltsman from Sharp's negligence. Hasche cited Restatement (Second) of Torts § 315 (1965), which provides: “There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless” a special relationship exists which imposes a duty upon the actor to control the third person's conduct, or a special relationship exists requiring the actor to protect the other. In opposition to Hasche's motion, Saltsman argued Hasche owed her a duty under premises liability law. Saltsman argued Hasche was a landowner and responsible for the property where the accident occurred, and she was a lawful entrant upon his land. In granting summary judgment, the district court found the question of whether Hasche owed Saltsman a duty was a matter of law and decided, “There is no statute, ordinance, or case law imposing a duty upon the landlord to protect a person from the negligence of another.”

[¶ 9] By its order, the district court considered Sharp the only negligent party, effectively concluding she was the only party who owed a duty of care, breached her duty, and was the sole cause of Saltsman's injuries. Based upon that conclusion, the district court only analyzed whether Hasche had a duty to protect Saltsman from Sharp's negligence, and the court failed to analyze whether both Hasche and Sharp owed Saltsman a duty of care. Sharp's alleged negligence does not necessarily negate Hasche's duty. More than one party may have owed a duty toward an injured party and may have been at fault in causing an injury. Under North Dakota's modified comparative fault law, negligence is included in the concept of “fault,” and the fault of two or more parties may be compared so that each party is liable only for the amount of damages attributable to the percentage of fault by that party. N.D.C.C. § 32–03.2–02. Even though Sharp and Saltsman settled their case and Sharp would not be a party at a trial, the fact-finder would determine the fault attributable to all tortfeasors, and Hasche would be responsible only for the portion of fault, if any, attributed to him. See Jones v. Ahlberg, 489 N.W.2d 576, 583 (N.D.1992). The district court erred by deciding only whether Hasche had a duty to protect Saltsman from the negligence of Sharp and failing to analyze whether Hasche had a separate duty to avoid injury to Saltsman.

[¶ 10] Saltsman argued Hasche owed her a duty as a matter of law under general negligence principles. “Every person is bound without contract to abstain from injuring the person or property of another or infringing upon any of that person's rights.” N.D.C.C. § 9–10–01; see also Dinger v. Strata Corp., 2000 ND 41, ¶ 16, 607 N.W.2d 886. “A person is responsible ... for an injury occasioned to another by the person's want of ordinary care or skill in the management of the person's property or self.” N.D.C.C. § 9–10–06.

[¶ 11] Saltsman argued Hasche owed her a duty as a matter of law under premises liability law.

To establish an actionable negligence, the plaintiff must show the defendant had a duty to protect the plaintiff from injury. Generally, the existence of a duty is a preliminary question of law for the court to decide. When a duty does not exist, there is no negligence. If determining the existence of a duty depends on resolving factual issues, the facts must be resolved by the trier of fact. However, issues of fact may become issues of law for the court if reasonable persons could reach only one conclusion from the facts.

Botner, 2010 ND 95, ¶ 10, 782 N.W.2d 662 (quoting Azure, 2004 ND 128, ¶ 9, 681 N.W.2d 816). “Under premises liability law, landowners owe a general duty to lawful entrants to maintain their property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury...