Gullickson v. Torkelson Bros., Inc.
598 N.W.2d 503
N.D.
1999
Check Treatment
SANDSTROM, Justice.

[¶ 1] Mark Gulliekson appeals from the judgment of dismissal of the district court. Gulliekson argued Torkelson Brothers, Inc., had breached a duty to him when he was injured on the job. Because there is no evidence of breach of duty, the judgment of the district court is affirmed.

I

[¶ 2] Gulliekson was employed on the Torkelson Brothers, Inc., farm. On December 31, 1993, hе was injured when he slipped on the wooden floor of a semitrailer he was inspecting before loаding with potatoes. At the time of his injury, Gulliekson was an experienced 36-year-old farm laborer employеd by Torkelson Brothers, Inc. Prior to his employment with Torkelson Brothers, Inc., Gulliekson worked exclusively from 1985 to 1992 for аnother Hoople area potato farmer. From May 1992 through mid-January 1994, Gul-lickson was employed by Torkelson Brothers, Inc.

[¶ 3] Gulliekson testified that loading potatoes took place approximately fоur days per week during the winter months. When a semi-truck arrived at the warehouse, he would inspect the trailer bеfore filling it with potatoes. He testified the purpose of his inspections was to determine whether thé trucks wеre warm, clean, free from foreign objects, and in good working order.

[¶ 4] The semi-trailer in which Gullick-son was injured wаs owned not by Torkel-son Brothers, Inc., but by an independent trucker. When he opened the doors to the trailer, he noticed “a lot” of dirt on the trailer floor. Tom Torkelson, one of the owners of the business, was walking by, and Gulliekson asked him if he wanted to load this truck. Torkelson said yes, and ‍​​​‌‌‌‌​‌‌‌‌​​‌‌​‌​​‌‌‌‌​​‌‌​​‌​​‌​‌‌‌‌​‌​‌‌‌‌‌​‍Gulliekson proceeded to conduсt his routine inspection. Gulliekson entered the trailer and was approximately ten feet into the reаr of the trailer when he slipped, but did not fall, and injured himself. Although optional workers compensation coverage is available for agricultural workers, N.D.C.C. § 65-04-29, Torkelson Brothers, Inc., secured none. Gulliekson sued.

[¶ 5] On Octоber 28, 1998, the trial court granted the Torkelson Brothers, Inc., motion for summary judgment of dismissal, and Gulliekson appealed. The district court had jurisdiction under N.D.C.C. § 27-05-06. This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-27-01.

II

[¶ 6] Gulliekson argues the district court erred in granting summary judgment, because Torkelson Brothers, Inc., breached its duty. Although negligence actions are ordinarily inaрpropriate for summary judgment, whether a duty exists is generally a preliminary question of law for the court to dеcide. Hurt v. *505Freeland, 1999 ND 12, ¶ 9, 589 N.W.2d 551 (citing Crowston v. Goodyear Tire & Rubber Co., 521 N.W.2d 401, 406 (N.D.1994); DeLair v. County of LaMoure, 326 N.W.2d 55, 58 (N.D.1982)). If the existence of a duty depends upon factual determinations, the facts must be determined by thе fact finder. Rawlings v. Fruhwirth, 455 N.W.2d 574, 577 (N.D.1990); Barsness v. General Diesel & Equipment Co., 383 N.W.2d 840, 843 (N.D.1986). Issues of fact, however, may become issues of law for the court, ‍​​​‌‌‌‌​‌‌‌‌​​‌‌​‌​​‌‌‌‌​​‌‌​​‌​​‌​‌‌‌‌​‌​‌‌‌‌‌​‍if reasonable pеrsons could reach only one conclusion from the facts. Rawlings, at 577. On a summary judgment motion, we review the evidence in the light most favorable to the opposing party. Narum v. Faxx Foods, Inc., 1999 ND 45, ¶ 15, 590 N.W.2d 454 (citing Freed v. Unruh, 1998 ND 34, ¶ 6, 575 N.W.2d 433).

[¶ 7] To establish a cause of action for negligence, Gullickson must demonstrate Torkelson Brothers, Inc., breached a duty. Hurt, 1999 ND 12, ¶ 11, 589 N.W.2d 551. We have said negligence “ ‘сonsists of a duty on the part of an allegedly negligent person to protect the plaintiff from injury, a failurе to discharge the duty, and a resulting injury proximately caused by the breach of the duty.’ ” Id. (quoting Diegel v. City of West Fargo, 546 N.W.2d 367, 370 (N.D.1996)). If no duty exists, ‍​​​‌‌‌‌​‌‌‌‌​​‌‌​‌​​‌‌‌‌​​‌‌​​‌​​‌​‌‌‌‌​‌​‌‌‌‌‌​‍there can be no negligence. Id.

[¶ 8] Torkelson Brothers, Inc., owed Gullickson a duty. The duty was to furnish Gullickson with a reasonably safe workplace, tools, and equipment. Johansen v. Anderson, 555 N.W.2d 588, 593 (N.D.1996). An employer also has a duty to warn an employee of dangers inсident to his employment, of which the employer has knowledge and the employee has no knowledge. Kittock v. Anderson, 203 N.W.2d 522 (N.D.1973); Olstad v. Olstad, 126 N.W.2d 795 (N.D.1964). The employer need not, however, warn of dangers known to the employee or obvious to and fully appreciated by the employee. Kittock, at 524; 27 Am.Jur.2d Employment Relationship § 277 (1996). See also N.D.C.C. § 34-02-02 (an employer is not bound to indemnify his employee for lossеs suffered by the latter in consequence of the ordinary risks of the business in ‍​​​‌‌‌‌​‌‌‌‌​​‌‌​‌​​‌‌‌‌​​‌‌​​‌​​‌​‌‌‌‌​‌​‌‌‌‌‌​‍which he is employed). An employer’s 'duty to warn of dangers incident to the work must be considered in the context of the employee’s maturity and exрerience. Lindenberg v. Folson, 138 N.W.2d 573 (N.D.1965).

[¶ 9] When one of the owners, Tom Torkelson, walked by the trailer, he did not inspect it, but merely loоked in to check its cleanliness. Had Torkelson been aware of the danger, he would have had a duty tо warn Gullickson. This was not an inspection undertaken by Torkelson, but merely a quick look to see whether the trаiler should be loaded. Gullickson, who had worked as a farm laborer on potato farms for over fifteen years, entered the trailer and determined it had a wood floor, and he observed the floor was cоvered with a thick layer of dirt. He did not detect any wet or muddy surfaces or material. Significantly, Gullickson admitted in his brief to the district court, the hazard was not readily discoverable by inspection. If it was not easily discoverаble, liability cannot be predicated on negligent failure to inspect where there is no showing that reаsonable inspection would have revealed a problem. Johansen, 555 N.W.2d at 593. Torkelson did not inspect the trailer flоor and had no duty to do so.

[¶ 10] The district court determined, as a matter of law, that reasonable persоns could draw but one conclusion from the number of undisputed facts and other evidence when viewed in a light mоst favorable to Gullickson. The conclusion was Torkelson Brothers, Inc., did not breach a duty to Gullickson. Torkelson Brothers, Inc., was not aware of the danger and did not have to warn Gullickson, and thus did not breach a duty. 'We agree with the district court, based on the undisputed evidence presented, Torkelson Brothers, Inc., breached no duty to Gullickson.

*506III

[¶ 11] The judgment of the district court is affirmed.

[¶ 12] GERALD W. VANDE WALLE, C.J., and WILLIAM A. NEUMANN, ‍​​​‌‌‌‌​‌‌‌‌​​‌‌​‌​​‌‌‌‌​​‌‌​​‌​​‌​‌‌‌‌​‌​‌‌‌‌‌​‍MARY MUEHLEN MARING and CAROL RONNING KAPSNER, JJ., concur.