Sternberger v. City of Williston

• Decision Date: 04 December 1996
• Docket Number: No. 960153,960153
• Parties: Lisa STERNBERGER, Plaintiff and Appellant, v. CITY OF WILLISTON, a North Dakota Municipal Corporation, Defendant and Appellee. Civil
• Court: North Dakota Supreme Court

Page 288

556 N.W.2d 288

Lisa STERNBERGER, Plaintiff and Appellant, v. CITY OF WILLISTON, a North Dakota Municipal Corporation,

Defendant and Appellee.

Civil No. 960153.

Supreme Court of North Dakota.

Dec. 4, 1996.

Schoppert Law Firm, Minot, for plaintiff and appellant; argued by Paul M. Probst.

Winkjer, McKennett, Stenehjem, Reierson, & Forsberg, Williston, for defendant and appellee; argued by Kent A. Reierson.

MESCHKE, Justice.

Lisa Sternberger appeals from a summary judgment dismissing her claim against the City of Williston for her personal injury when she fell on its snow-storage lot. We affirm.

On March 26, 1995, Sternberger was injured while running in the middle of the night through an unimproved lot owned by the City and used for a snow-storage site. Sternberger described what happened in her answer to an interrogatory:

At approximately 1:00 a.m. on March 26, 1995, my friend Karlen Pope and I were driving in the area of 2nd Street and University Avenue when the driver of my vehicle, Karlen Pope, got out [of] the vehicle, took the keys with him and proceeded across the lot in question. I pursued him to try to gain possession of my keys so I could drive myself home. As I was crossing the lot in question, on what I thought was hard packed gravel, I fell through, what was in fact hard packed snow and ice, and severely injured my right knee. After my fall, Karlen Pope threw the keys to me and I crawled and limped back to my van and drove home.

Sternberger sued the City, alleging it had negligently maintained the lot by failing to furnish safe access on it that resulted in her injury.

The City moved for summary judgment on the ground, as a matter of law, it owed no duty to Sternberger. With its motion, the City submitted part of Sternberger's answers to its interrogatories and the affidavits of a City Commissioner and the Public Works Director. Both swore that they were not aware of any prior complaints about the lot or of any accidents on the lot. They also stated that the City had evaluated various possible snow-storage sites and that they did not consider this one to be dangerous. The Public Works Director, said: "There is good access all around the lot and it is not reasonable to believe that people would cross it at times when the snow is melting, as the lot is not surfaced and it is full of mud and gravel."

Sternberger did not submit any evidence of negligence by the City in her opposition to the summary judgment motion. The trial court granted summary judgment because "reasonable minds could not disagree that under the situation described in this case, the City did not maintain an unreasonably dangerous or hazardous condition for a person (pedestrian) exercising ordinary care."

In its order, the trial court said that the lot was surrounded by a well-maintained roadway and partially surrounded by a walkway. On appeal, Sternberger asserts the fact of an adjacent sidewalk is disputed and material, so summary judgment was improper. She argues the trial court wrongly concluded that the City owed no specific duty to her to "guard against unreasonably dangerous conditions." She contends that the existence of an adjacent sidewalk may determine whether the City properly exercised this duty. We disagree.

Summary judgment is appropriate when either party is entitled to judgment as a matter of law, if no dispute exists about the material facts or inferences to be drawn from undisputed facts, or if resolving disputed facts would not alter the result. Olson v. City of Garrison, 539 N.W.2d 663, 664 (N.D.1995). For summary judgment, the court must view the evidence in the light most favorable to the party opposing the motion. Holter v. City of Sheyenne, 480 N.W.2d 736, 737 (N.D.1992). However, as we recently explained in Kristianson v. Flying J Oil & Gas, Inc., 553 N.W.2d 186, 188 (N.D.1996) [T]he party opposing summary judgment cannot leave to the court the chore of divining what facts are relevant and material to the claim for relief, but must draw the court's attention to relevant evidence in the record by setting out the page and line in depositions or other documents containing testimony or evidence raising a genuine issue of material fact.

(footnote omitted). NDRCivP 56(e) describes the evidentiary methods of opposing summary judgment, primarily with affidavits or other admissible evidence. As Kristianson, 553 N.W.2d at 188 explained, "the opposing party may not rest upon mere allegations or denials in the pleadings, but must present admissible evidence establishing a genuine issue of material fact."

Sternberger did not present any evidence about sidewalks to the trial court. ¹ She also failed to offer any evidence that the City's maintenance of the lot was unreasonably hazardous. On appeal, she does not identify any admissible evidence in this record to support her argument, but depends on her complaint. This is not enough response to raise an issue of material fact.

Anyway, the presence or absence of a sidewalk around the lot is not material. Sternberger argues this fact is material because it may determine whether the City properly exercised its duty to protect against hazardous conditions on the lot. However, even without a sidewalk anywhere, we agree with the trial court that there is no evidence at all to indicate the City maintained an unreasonably hazardous condition on the lot for a person exercising ordinary care.

To be negligent, a person must owe a duty to protect another from injury. Holter, 480 N.W.2d at 737-38. Whether a duty exists is usually a question of law for the court to decide. Id. If the existence of a duty...