Wotzka v. Minndakota Ltd.

• Citation: 2013 ND 99,831 N.W.2d 722
• Decision Date: 18 July 2013
• Docket Number: No. 20120301.,20120301.
• Parties: Jeffrey WOTZKA, Plaintiff and Appellant v. MINNDAKOTA LIMITED PARTNERSHIP d/b/a Radisson Hotel Bismarck, 605 East Broadway Avenue, Bismarck, North Dakota, Defendant and Appellee.
• Court: United States State Supreme Court of North Dakota

831 N.W.2d 722

2013 ND 99

Jeffrey WOTZKA, Plaintiff and Appellant

v.MINNDAKOTA LIMITED PARTNERSHIP d/b/a Radisson Hotel Bismarck, 605 East Broadway Avenue, Bismarck, North Dakota, Defendant and Appellee.

No. 20120301.

Supreme Court of North Dakota.

June 19, 2013.

Rehearing Denied July 18, 2013.

Michael R. Hoffman, Bismarck, ND, for plaintiff and appellant.

Kristi K. Warner, Minneapolis, MN, for defendant and appellee.

MARING, Justice.

[¶ 1] Jeffrey Wotzka appeals the trial court's summary judgment in favor of Minndakota Limited Partnership, d/b/a Radisson Hotel Bismarck (“Radisson Hotel”) arising out of a slip and fall accident. We hold the trial court misapplied our law and erroneously granted summary judgment because Wotzka raised genuine issues of material fact regarding whether the Radisson Hotel should have anticipated harm despite the obvious or known nature of the danger and failed to maintain the property in a reasonably safe manner. We reverse the summary judgment, and we remand for further proceedings consistent with this opinion.

I

[¶ 2] Wotzka was a guest at the Radisson Hotel. While taking a shower, he slipped and fell out of the shower. Wotzka sued the Radisson Hotel. He claimed the Radisson Hotel maintained a dangerous condition on its premises by failing to equip the shower with a non-skid strip, a bathmat, or a handrail at the shower level.

[¶ 3] The Radisson Hotel moved for summary judgment, arguing it is under no duty to provide a non-skid strip, a bathmat, or a handrail in its showers. The Radisson Hotel also argued it had no duty to warn of the open and obvious dangers of a slippery shower.

[¶ 4] The trial court granted summary judgment and dismissed the case. The trial court concluded, as a matter of law, the Radisson Hotel had no duty to warn of open and obvious dangers in a shower or to take extra precautions to protect its guests. Lastly, the trial court found, “even if a duty exists on the part of the hotel over and above just the simple duty toward guests, there's no evidence of any breach of that duty in this case.” Wotzka appeals, arguing the trial court erred in granting summary judgment in favor of the Radisson Hotel.

II

[¶ 5] Our review of a trial court's order granting summary judgment under N.D.R.Civ.P. 56 is well-established:

“Summary judgment is a procedural device for the prompt resolution of a controversyon 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.”

Saltsman v. Sharp, 2011 ND 172, ¶ 4, 803 N.W.2d 553 (emphasis added) (quoting Brown v. Montana–Dakota Utilities, Co., 2011 ND 38, ¶ 3, 794 N.W.2d 741).

[¶ 6] “ ‘Negligence actions are ordinarily inappropriate for summary judgment because they involve issues of fact.’ ” Botner v. Bismarck Parks and Rec. Dist., 2010 ND 95, ¶ 8, 782 N.W.2d 662 (quoting Groleau v. Bjornson Oil Co., 2004 ND 55, ¶ 6, 676 N.W.2d 763). “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.’ ” Saltsman, 2011 ND 172, ¶ 5, 803 N.W.2d 553 (quoting Barsness v. Gen. Diesel & Equip. Co., 383 N.W.2d 840, 844 (N.D.1986)).

[¶ 7] Under North Dakota's modified comparative fault statute, N.D.C.C. § 32–03.2–02, fault includes: “negligence, malpractice, absolute liability, dram shop liability, failure to warn, reckless or willful conduct, assumption of risk, misuse of product, failure to avoid injury, and product liability, including product liability involving negligence or strict liability or breach of warranty for product defect.” In Botner, this Court explained the general laws applicable to negligence claims:

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. 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.

2010 ND 95, ¶ 10, 782 N.W.2d 662.

III

[¶ 8] Wotzka argues that, under premises law, whether the Radisson Hotel maintained its property in a reasonably safe manner is a question of fact, and is, therefore, inappropriate for summary judgment.

[¶ 9] “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 to another, the seriousness of the injury, and the burden of avoiding the risk.” Botner, 2010 ND 95, ¶ 9, 782 N.W.2d 662. The owner of the property must exercise ordinary care to maintain the property in a reasonably safe condition. Saltsman, 2011 ND 172, ¶ 11, 803 N.W.2d 553. The duty to maintain property in a reasonably safe condition applies to lodging establishments. Section 23–09–09, N.D.C.C., provides: “Every food establishment, lodging establishment, and assisted living facility must be operated with strict regard for the health, safety, and comfort of its patrons.” A landowner may be relieved of his liability to invitees if the physical harm is caused by a dangerous condition that is open and obvious. Groleau, 2004 ND 55, ¶ 18, 676 N.W.2d 763. However, this relief from liability is not absolute. “If a landowner permits dangerous conditions to exist on the premises the landowner must take reasonable measures to prevent injury to those whose presence on the property reasonably can be foreseen.” Fast v. State, 2004 ND 111, ¶ 8, 680 N.W.2d 265 (citing Groleau, 2004 ND 55, ¶ 16, 676 N.W.2d 763).

[¶ 10] Here, the trial court concluded as a matter of law, the hotel was not liable because the danger created by a wet shower was open and obvious. We have not addressed the specific question of whether a hotel owes a duty for an open and obvious danger in the context of the risks inherent in showering. We recognize other jurisdictions are divided on whether a hotel may be liable for failure to provide safety precautions such as a bathmat, non-skid strips, or a handrail. See Thomas R. Trenkner, Annotation, Liability of Hotel or Motel Operator for Injury or Death of Guest or Privy Resulting From Condition in Plumbing or Bathroom of Room or Suite, 93 A.L.R.3d 253 (1979); see also Jones v. Abner, 335 S.W.3d 471, 476 (Ky.Ct.App.2011) (holding “the risks inherent in bathing or showering are open, apparent, and obvious to anyone who has ever taken a bath” and the hotel has no duty to provide a non-skid device or warn of the dangerous condition); Portanova v. Trump Taj Mahal Assocs., 270 A.D.2d 757, 704 N.Y.S.2d 380, 380 (2000) (holding that a hotel is under no duty to provide a non-skid device to hotel guests); Kutz v. Koury Corp., 93 N.C.App. 300, 377 S.E.2d 811, 813 (1989) (holding it was common knowledge that a shower, when wet and soapy, is dangerous and the hotel is under no duty to warn of an open and obvious danger); LaBart v. Hotel Vendome Corp., 213 F.Supp. 958, 959 (D.Mass.1963) (holding that a hotel was under no duty to warn of the open and obvious danger created by a wet and soapy shower floor). But see Wells v. Howard, 165 Colo. 471, 439 P.2d 997, 998 (1968) (holding that a question of fact existed as to whether the hotel was negligent for failing to furnish the shower with non-skid devices and maintain the shower in a reasonably safe condition); Gunderson v. Nolte, 153 Mont. 208, 456 P.2d 282, 284 (1969) (holding that whether the hotel was negligent in failing to provide a handrail or similar device in the shower was a question of fact and inappropriate for a directed verdict).

[¶ 11] We, however, must look to our law on premise liability. Under our law, the issue of whether a condition is obvious is determined by the objective knowledge of a reasonable person and is generally a question of fact for the trier of fact, and only becomes a question of law when reasonable minds could reach but one conclusion. Groleau, 2004 ND 55, ¶ 21, 676 N.W.2d 763. Wotzka does not contest that the shower is an open and obvious danger. Wotzka argues that the Radisson Hotel owes a duty to maintain its property in a reasonably safe condition, in view of all the circumstances, including the likelihood a guest could slip and fall in a shower when water and soap are used, the guest could be seriously injured, and the Radisson Hotel could avoid the risk by simply providing a bathmat, non-skid strips, or a shower-level handrail.¹

[¶ 12] Under our precedent, the trial court's conclusion that a condition is open and obvious, does not end the inquiry into whether a landowner owes a duty to its...