Smith ex rel. Smith v. Kulig
| Decision Date | 17 May 2005 |
| Docket Number | No. 20040237.,20040237. |
| Citation | 696 N.W.2d 521,2005 ND 93 |
| Court | North Dakota Supreme Court |
| Parties | Kelly SMITH, by and through the Special Administrator Rhonda SMITH, Plaintiff and Appellant, v. Tony KULIG, Defendant and Appellee. |
Michael Ward, Eaton, Van de Streek & Ward, Minot, N.D., for plaintiff and appellant.
James E. Nostdahl, Pringle & Herigstad, P.C., Minot, N.D., for defendant and appellee.
[¶ 1] Rhonda Smith, as the special administrator for the estate of her deceased husband, Kelly Smith, appealed from a dismissal of her wrongful death action against Tony Kulig. We hold the trial court's conclusion that Kelly Smith was a trespasser on Kulig's property and his death was not caused by willful or wanton conduct by Kulig is supported by the evidence, and we affirm.
[¶ 2] Kulig owns a four-story building in Minot with two commercial businesses on the main floor and four apartments leased on the second floor. The third and fourth floors are vacant. The building entrance is on the west side facing Main Street, and there is a separate door for residential tenants to enter the building. The door is kept locked at all times so that only tenants and invited guests may enter the premises, and all tenants have a key to the front door. Attached to the back east side of the building is a fire escape. Access to the fire escape can be gained through a second floor door onto a landing. At the bottom of the fire escape, a ladder is located approximately seven feet above the ground and, therefore, access from the ground is limited. Kulig instructed tenants of the building, including Michael Spotted Wolf, who rented one of the second floor apartments, they were not to use the fire escape for entering or exiting the building. It was to be used only in the case of an emergency. Kulig posted "no trespassing" signs on both sides of the second floor door leading to the fire escape landing, on the landing itself, and on the ladder between the landing and the ground.
[¶ 3] On July 22, 2000, Kelly Smith and Sonny Smith were visiting Spotted Wolf in his apartment in Kulig's building and were drinking most of the afternoon in the apartment. Sometime around 10:00 p.m., Kelly Smith visited a relative at another location in Minot. While Kelly Smith was visiting the relative, Sonny Smith phoned and invited Kelly Smith to come back to Spotted Wolf's apartment. Kelly Smith was later seen by a witness at a local bar around its closing time of 1:00 a.m. on the morning of July 23, 2000. No one saw Smith again until approximately 2:00 a.m., when his body was discovered lying in the alley beneath the fire escape on the east side of Kulig's apartment building. [¶ 4] Rhonda Smith filed a wrongful death action against Kulig, alleging Kelly Smith was killed while walking on the fire escape when attachment bolts securing the fire escape "came out of the wall." She alleged the death was the result of Kulig's negligent failure to provide a safe environment and to keep the fire escape serviced in a safe manner. The case was tried to the court. Dr. John Smith testified the cause of Kelly Smith's death was "a fall from a balcony of a fire escape." Clint Wolf, an investigator with the Minot Police Department, testified that attachment bolts were missing from the fire escape, which allowed it to swing away from the wall, presumably causing Smith to fall to the street. The trial court found that Smith, while using the fire escape to enter or exit the building, was a trespasser to whom Kulig did not owe a duty other than to refrain from harming him in a willful or wanton manner. The court determined Kulig did not breach his duty to Smith, and the court dismissed the action with prejudice on its merits.
[¶ 5] Rhonda Smith argues the trial court erred in finding Kelly Smith was a trespasser when he presumably fell off the fire escape of Kulig's building. Landowners owe a general duty to lawful entrants to maintain their property in a reasonably safe condition under the circumstances. Sternberger v. City of Williston, 556 N.W.2d 288, 290 (N.D.1996). However, a landowner's only duty to a trespasser is to refrain from harming the trespasser in a willful and wanton manner. O'Leary v. Coenen, 251 N.W.2d 746, 751 (N.D.1977). A finding of fact by the trial court will not be set aside on appeal unless it is clearly erroneous. N.D.R.Civ.P. 52(a). A finding of fact is clearly erroneous when, although there is some evidence to support it, the reviewing court is left with a definite and firm conviction a mistake has been made. Buri v. Ramsey, 2005 ND 65, ¶ 13, 693 N.W.2d 619. A determination of whether someone has committed a willful trespass is a finding of fact. See Dixon v. McKenzie Co. Grazing Ass'n, 2004 ND 40, ¶ 27, 675 N.W.2d 414
.
[¶ 6] It is undisputed Kulig had informed tenants they and their guests were not entitled to use the fire escape to enter or exit the building. Although Kelly Smith may have been invited to Spotted Wolf's apartment as a guest, the evidence supports the trial court's finding Smith became a trespasser on Kulig's property when he attempted to enter or exit the building via the fire escape, in spite of the no trespass signs forbidding its usage in that manner when there was no emergency necessitating its use.
[¶ 7] The decision in Terry v. Metzger, 241 Neb. 795, 491 N.W.2d 50, 53 (1992), is instructive. In that case, a youth brought a negligence action against a possessor of land to recover for injuries that resulted when the roof of a cave on the land partially collapsed. The Nebraska Supreme Court affirmed the trial court's decision denying recovery on the ground that the land possessor had not been willfully or wantonly negligent. In reaching that decision, the court stated:
[¶ 8] Here, the trial court found the fire escape on the back side of Kulig's building contained no trespass signs, as did the doors leading to and from the fire escape at the second and third levels. The court also found that the ladder to the fire escape had a no trespassing sign mounted on it. These findings are supported by the evidence and are not clearly erroneous. The court found that Kelly Smith was a trespasser on the premises, because Smith did not have a right to use the fire escape as an entry or exit to the building and there was no emergency situation which would reasonably require him to have used it for that purpose. We agree with the Nebraska Supreme Court in Terry that the no trespassing signs on the property negated any implied consent upon which Kelly Smith could claim to have been a lawful occupant of the premises while using the fire escape in contravention of the warnings against such use. We, therefore, hold the trial court's finding Kelly Smith was a trespasser is not clearly erroneous.
[¶ 9] Rhonda Smith asserts the trial court erred in concluding Kulig, as the owner of the building, only had a duty to avoid injuring Kelly Smith by willful or wanton conduct.
[¶ 10] For purposes of determining landowner liability for injury caused to occupants upon the land, this Court has eliminated the distinction between an invitee and a licencee, but has retained the distinction with regard to trespassers:
An occupier of premises owes no duty to a trespasser other than to refrain from harming the trespasser in a willful and wanton manner until such time as the trespasser's presence in a place of danger becomes known, at which point the occupier's duty is to exercise ordinary care to avoid injuring him.
O'Leary, 251 N.W.2d at 751. Thus, a landowner does not owe a duty to a trespasser other than to refrain from harming the trespasser in a willful and wanton manner. See Sternberger, 556 N.W.2d at 290 n. 2
. We, therefore, conclude the court did not...
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