911 N.W.2d 343
N.D.2018Background
- On June 11, 2012, 18-year-old Christian Bjerk died after ingesting ketamine and other drugs at a Grand Forks house owned by Kenton Anderson.
- Anderson had not lived at the house since ~2009; Julie Thorsen (his ex-girlfriend and employee) and her children, including Nick Thorsen, were occupying it without a written lease and without rent as a condition of use.
- Christian and two others purchased drugs elsewhere, returned to the house, consumed ketamine in the basement, became disruptive, were told to leave, and Christian later collapsed and died nearby.
- Anderson was not present during the drug purchase or consumption, learned of the events and Christian’s death the next morning, and then ordered Nick Thorsen to leave.
- The Bjerks sued for wrongful death asserting premises liability (failure to keep property free from illegal/dangerous activity and failure to warn) and negligent entrustment. The district court granted summary judgment for Anderson; the Supreme Court of North Dakota affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Anderson owed a premises-liability duty to Christian for harms caused by others’ dangerous activity on his property | Anderson had notice/knowledge of residents’ drug history and permitted the house to be used for drug activity, so he had a duty to prevent or warn against foreseeable harm | Anderson did not occupy or control the premises on the night, was not present, did not engage in or facilitate the drug activity, and lacked the requisite foreseeability and control | No duty under premises liability as alleged; summary judgment affirmed |
| Whether a duty to warn entrants of risks from illegal drug use existed | Anderson should have warned entrants or otherwise protected them from drug-related dangers on his property | Risk of illegal drug use is obvious; Anderson had no special relationship or superior knowledge requiring a warning | No duty to warn imposed for consumption of illegal drugs; summary judgment affirmed |
| Whether premises-liability law extends to activities on property conducted by third parties (not the owner) | Premises liability should encompass harms from dangerous activities by non-owner occupants when owner has knowledge or control | Existing ND law recognizes duties mainly where owner/occupier engages in or permits dangerous conditions; extending liability would be unduly burdensome and policy-driven | Court declines to extend premises liability to cover third-party criminal activity absent stronger foreseeability/control facts |
| Whether negligent entrustment applies to real property (the house) | Anderson negligently entrusted the house to Julie Thorsen/Nick, given his knowledge of their drug histories | Negligent entrustment applies to chattels/personal property, not to real property | Negligent entrustment claim fails as matter of law; doctrine limited to chattel; summary judgment affirmed |
Key Cases Cited
- M.M. v. Fargo Pub. Sch. Dist. #1, 783 N.W.2d 806 (N.D. 2010) (general negligence principles govern landowner duty to lawful entrants)
- Forsman v. Blues, Brews & Bar-B-Ques, Inc., 820 N.W.2d 748 (N.D. 2012) (owner present and engaging in dangerous activity may give rise to premises-liability duty)
- Wotzka v. Minndakota Ltd. P’ship, 831 N.W.2d 722 (N.D. 2013) (landowner duty to maintain premises in reasonably safe condition)
- Gillespie v. Nat’l Farmers Union Prop. & Cas. Co., 885 N.W.2d 771 (N.D. 2016) (negligent entrustment doctrine recognizing chattel requirement)
- Castaneda v. Olsher, 162 P.3d 610 (Cal. 2007) (declining to impose duty to evict absent high foreseeability of harm from tenants’ criminal conduct)