Werth v. Ashley Realty Co.

• Decision Date: 27 July 1972
• Docket Number: No. 8825,8825
• Citation: 199 N.W.2d 899
• Parties: Hulda WERTH, Plaintiff and Appellant, v. ASHLEY REALTY COMPANY, a corporation, Defendant and Respondent. Civ.
• Court: North Dakota Supreme Court

Page 899

199 N.W.2d 899

Hulda WERTH, Plaintiff and Appellant, v. ASHLEY REALTY COMPANY, a corporation, Defendant and Respondent.

Civ. No. 8825.

Supreme Court of North Dakota.

July 27, 1972.

Syllabus by the Court

1. An owner or person in charge of premises ordinarily is not under any affirmative duty to give licensees warning of concealed perils, although he might, by the exercise of reasonable care, have discovered the defect or danger which caused the injury. However, he owes a duty not knowingly or willfully to let the licensee run into, or expose him to, a hidden danger or peril, but should take whatever steps are reasonable, under the circumstances, to protect the licensee from such peril, and accordingly should give to the licensee a reasonable warning, or information regarding the dangerous condition which is not open to the licensee's observation but of which the owner or occupant knows or should know. In case of failure of this duty the owner or proprietor may be held liable for unusual concealed perils against which the licensee cannot protect himself, and this liability is predicated, not on the existence of the concealed danger, but on the failure to give warning of its existence.

2. Trial court did not err in granting motion for summary judgment when no facts were stated establishing that defendant knew or should have known that a dangerous condition existed on premises which plaintiff had entered uninvited.

3. The distinctions between trespassers, licensees, and invitees, developed and applied by the courts, supply a reasonable and workable approach to a determination of the liability of the occupier or owner of land for injuries to entrants thereon. Until additional time has elapsed in which experience can be gained justifying an abandonment, the distinctions shall be retained by this court.

Gordon O. Hoberg, Napoleon, for plaintiff and appellant.

Nilles, Hansen, Selbo, Magill & Davies, Fargo, for defendant and respondent.

ERICKSTAD, Judge.

The plaintiff Hulda Werth, an adult woman of about 54 years of age, commenced this action against defendant Ashley Realty Company, a corporation, by complaint dated October 13, 1971, in which she alleged: the corporation was the owner of certain lots in the City of Lehr, North Dakota, on which was situated a building with an outside basement entrance, to which entrance there was attached an iron-pipe railing; on July 2, 1969, the plaintiff stopped to talk with one Willie Koepplin and while so talking with Mr. Koepplin she leaned against said railing, which collapsed, causing her to fall backward into the basement stairwell; the railing was dangerous and defective and this condition was known to the defendant, or the defendant should have known of the condition, and the defendant's failure to give warning or to repair said condition constituted negligence; as a result of the defendant's negligence the plaintiff was permanently injured and is, accordingly, entitled to recover the sum of $71,827, together with interest from the date of the injury, plus costs.

The corporation filed an answer in which it admitted the ownership of the lots and the occurrence of the accident on its premises and in which it alleged that if the plaintiff was injured the injuries were solely and proximately caused by the plaintiff's own negligence or that her negligence proximately contributed to her injuries.

On January 24, 1972, the corporation made a motion for a summary judgment under Rule 56 of the North Dakota Rules of Civil Procedure based upon the pleadings, a deposition of the plaintiff, an affidavit of an officer and agent of the defendant corporation, and affidavits of three employees of the corporation. In resistance to this motion, the plaintiff filed two affidavits, one signed by Willie E. Koepplin, an employee of the Lehr Hardware & Supply Store, and the other signed by Donald G. Kranzler, the owner and operator of that store.

Mr. Koepplin asserts that on the date in question he was working on an old deepfreeze (on a vacant lot situated between the Lehr Hardware & Supply Store and the bank building owned by the corporation); that while plaintiff was talking to him about the deepfreeze she leaned against the handrailing of the bank building and fell into the stairwell; that the pipe of which the handrailing was made was in 'very poor shape' and had been in that condition for a year or more; that on at least one occasion one end of the railing had fallen to the ground and had merely been placed back into position unrepaired.

Mr. Kranzler asserts that he is the owner of the Lehr Hardware & Supply Store; that he knew from looking at the handrailing surrounding the stairwell of the corporation's building that it was in 'poor shape' at the time of the plaintiff's accident; that before the accident he noticed that the handrail was in poor shape and that on one occasion it had fallen to the ground and merely been replaced without being repaired; that he witnessed the accident, having just driven to the scene in his pickup when the plaintiff leaned against the railing and fell into the stairwell.

By affidavit, an officer of the corporation asserts that the building to which the stairwell and railing had been attached had not been used for any commercial purpose since July of 1968, and that no agent, officer, or employee of the corporation had any actual knowledge prior to the plaintiff's accident of a defective condition of the railing.

In another affidavit an employee of the defendant corporation asserts that during the time that he was the manager of a bank operated on the defendant's premises, from 1963 to 1967, and apparently while he was manager of an insurance company operated on the premises, from 1967 to 1968, the railing surrounding the stairwell appeared to be in good condition and that he was not made aware of any defects or irregularities in the railing, and that on one occasion he used the railing for the purpose of supporting a plank on which he stood to service an air-conditioner located in the bank building, and that at that time the railing supported his weight very easily.

Another affidavit filed on behalf of the defendant corporation was signed by a person who said that from March 1, 1950, until November 1, 1965, he had been employed as assistant manager and teller of the bank which was operated on the corporation's premises and that during that period of time he had also done some janitorial work for the bank, and that all during that time the railing surrounding the stairwell appeared to be in good condition, and that he had never been notified or made aware of any defects in the railing.

The plaintiff admits that she was on the defendant's premises for the purpose of securing the old freezer from Mr. Koepplin for her son. No contention was made in the trial court and none is made in this court that she was on the defendant's premises for any purpose or interest of the defendant.

On this record the trial court granted the motion for summary judgment, orally stating that the owner of property owes no duty to a licensee other than to refrain from willfully or wantonly injuring him.

In its written order granting the motion, the trial court found that the plaintiff was not an invitee but that she was a trespasser or a bare licensee on the premises of the defendant at the time of the accident; that there was no dispute as to any material fact; that there was no genuine issue as to any material fact; and that the complaint failed to state a claim upon which relief could be granted.

In appealing from the summary judgment entered pursuant to the trial court's order, the plaintiff has filed specifications of error which we summarize: (1) That the court erred in concluding that there is no genuine issue as to any material fact; (2) That the court erred in failing to recognize the 'trap exception' to the general rule of nonliability on the part of a landowner to a licensee for an injury caused by defective condition of the premises; (3) That the court erred in concluding that the landowner's duty of care varies in accordance with whether the injured person is an invitee, a licensee, or a trespasser, and that the correct rule is whether the defendant used ordinary care in the management of his property.

Pertinent to a determination of the first specification of error are the following parts of Rule 56.

'* * * Judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. * * * ' Rule 56(c), Rules of Civil Procedure, N.D.C.C.

'* * * When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment if appropriate, shall be entered against him.' Rule 56(e), Rules of Civil Procedure, N.D.C.C.

The plaintiff concedes that nothing in her deposition or in any of the affidavits supports the allegation in her complaint that the dangerous and defective condition of the handrailing was known to the defendant corporation.

It is apparently the plaintiff's contention that the facts as set forth in the affidavits disclose that the condition was such that in the exercise of reasonable care the defendant corporation should have known of the dangerous and defective condition or that if there was an issue as to that fact, that question should have been submitted to the jury.

Before we attempt to determine the merit of this contention, we must answer certain questions bearing upon its materiality.

(1) What duty does a landowner have to protect a person...