Makeeff v. City of Bismarck

implied an express charge rebut

against the declarant of recent fabrica- improper tion or influence mo- .... tive ¶¶ Ramsey, See State v. 2005 ND 13- 16, 692 N.W.2d 498. If objection there had been an testimony at trial prior as to the child’s statements,

consistent the district court presumably would have overruled the ob- jection, noting that the statements were hearsay. appeal, On the defendant

argues 803(24), N-D.R.Ev. and the State controlling failed to cite the rule in re- I am sponse. unwilling say a district court, trial, fact did not err at

“plainly erred” because the State failed to

cite the appeal. correct rule on Dale V. Sandstrom

2005 ND 60 MAKEEFF, Corinna Plaintiff Appellant BISMARCK, The CITY OF a North Municipal Corporation, Dakota Appellee. Defendant and No. 20040272. Supreme Court of North Dakota.

March ND, Tuntland, Mandan,

Thomas M. for plaintiff appellant. Bakke,

Randall Oppe- J. Smith Bakke Wolf, ND, gard Bismarck, Porsborg appellee. defendant and SANDSTROM, Justice. appeals

[¶ Corinna Makeeff sum- 1] mary judgment dismissing negli- order her gence against City claim of Bismarck (“City”) for failure to ice from remove an stairway. Concluding outside City reasonably, had act we summary judgment reverse

mand proceedings. for further

I On March Makeeff at- at the tended a circus Bismarck Civic Cen- (“Civic Center”). ter leaving As she was at roughly Civic Center 9:30 or 10:00 p.m., injured she claims she was when she slipped patch of ice on an outside stairway leading out of the Civic Center. City, claiming She sued the it was negli- gent inspect failing the outside stair- way failing and in an remove accumula- tion of snow or ice. suggest anything . testi- did During discovery, Makeeff to worsen deposition her that she and the condition snow or ice.

fied carry- while she was fell down appeals, arguing Makeeff the dis- was hold- child. She claimed she ing her summary trict in granting court erred slip, the handrail as she started ing onto judgment, because there is sufficient evi- she let losing she was her but as balance City negligent dence to show was her child. the handrail to hold onto go of stairway failing to clear its of snow and ice. slid down to the She then bottom argues She the district court used stairway. wrong negligence standard in issuing its summary argues and judgment the correct family, Members Makeeffs [¶ 4] standard is reasonable care and foresee- her, the circus with stated who attended ability. stairway icy depositions that was they were people and that noticed other City, appeal, on argues [¶ 9] The that stated in slipping the stairs. Makeeff negligence the correct standard is whether that reported her affidavit when she unreasonably dangerous, it created an un- Center, to the Civic a Cen- incident Civic fall, causing natural condition and slip her, employee you asked “Are one of ter exist, if a it and that even condition did or got night who hurt last people prior had no notice the condition. a night quite because we had few before jurisdic- The district court had [¶ 10] who not people fell?” Makeeff could Const, VI, 8,§ tion art. under N.D. and it snowed member whether had rained or § 27-05-06. The appeal N.D.C.C. was day, family testi- that but members of her timely 4(a), N.D.R.App.P. under and this foggy misting. fied that was and Const, jurisdiction Court has under N.D. did Makeeff testified she [¶ 5] VI, 2,§ §§ art. and N.D.C.C. 27-02-04 wheth- check the area where she fell to see and 28-27-01. any was actual she

er there ice where pictures and she any did not have II icy condition. video court a The district ordered [¶ 11] summary judgment dismissing Makeeffs City produced The sheet [¶ 6] work City was negligent claim that the in allow- employee indicated an “ice applied that stairway on the ing ice to accumulate at melt” at 12:00 and p.m. the Civic Center. day. produced 8:00 that same It also p.m. indicating precipitation records that no “Summary judgment is day

was recorded Bismarck on that procedure promptly resolving a contro day. City it had previous claims if versy without a trial the evidence shows to her knowledge prior no conditions any genuine there are no issues as to and it cannot under complaint be liable any party material fact is entitled law if it unnatu- current did not create an a matter judgment as of law.” Gratech condition. unreasonably dangerous ral and Co., P.C., Engineering, Ltd. v. Wold ¶ 8, 672; summary moved for ND 56(c). granted “Even if a factual dis- judgment, and the district court N.D.R.Civ.P. exists, summary pute judgment proper reasoned is its motion. The district court if that ice was the the law is such resolution of the that result of change district factual will not the result.” dispute accumulation of snow or ice. The ¶ (citations omitted). Gratech, “A de no at court also stated there was evidence injuries result of a slip to deter- sustained as a novo of review used standard Fast, in fall on or ice.” district court erred snow mine whether judgment.” summary Id. “On granting two distinct that [¶ 16] There are rules light the evidence in the appeal, we view jurisdictions among have adopted been non-moving party.” most favorable that of slip-and-fall addressed the issue proximate are “Negligence cause involving cases a natural accumulation of questions fact unless the evidence is such Stores, snow and ice. Wal-Mart Inc. v. can minds draw but one reasonable Surratt, 437, 442 (Tex.App. 102 S.W.3d Clinic, v. Mid Green Dakota conclusion.” 2003). contrasting can These theories be ¶12, 6, 673 N.W.2d 257. ND summarized as the Massachusetts rule and the Id. The Connecticut rule. Massachu Ill recognized as the setts rule is traditional neg- an argues ordinary Makeeff rule and rule as the Connecticut the mod ligence be to deter- standard should used Id. (citing ern restatement rule. 62A slip mine is her whether the liable for Liability, §§ Am. Jur. Premise 2d 699-701 and fall. (1990)). rule, Massachusetts also The rule, known as the accumulation argues Makeeff this has [¶ Court 14] v. stems from the case of Woods Naumke categories in special prem abandoned the (1883). Co., ag Steam Cotton 134 Mass. 357 O’Leary ise See liability actions. v. Coe nen, (N.D.1977). v. Mucsi Associates Limited Part 746 In Graoch 251 N.W.2d #12, 847, nership 144 Wash.2d 31 P.3d special O’Leary, this Court abandoned the (2001). 684, rule, in 688 Under this “a land ap of common law classifications favor ordinary protect owner had no to invitees from plying principles negli of the by natural conditions caused accumulations gence a landowner’s conduct as govern to snow The of and ice.” Id. Connecticut to a and an invitee. at 751. licensee Id. rule, hand, on the other was in “occupier This an announced premises Court stated of Shimelman, 383,128 man Reardon v. 102 Conn. must maintain act as a reasonable (1925), placed A. 705 the burden on ing reasonably in a safe con property his “ circumstances, to ‘exercise all the landowner reasonable dition in view of prevent to care the occurrence of injury to anoth defective including the likelihood ” dangerous er, ap conditions’ common injury, of the and the the seriousness Reardon, proaches. (quoting the risk.” Id. 128 A. avoiding burden of Id. 706). distinguish doctrine did not The City argues [¶ The this case is 15] “ dangers that arose ‘from the fall of snow analogous slip-and-fall cases that occur ” freezing or the of ice’ from other hazards. on said party sidewalks. have that a is We Reardon, 706). A. at (quoting Id. 128 slippery by not for conditions caused liable sidewalk, impetus extending snow and ice on a some An behind absent creating unreasonably stairways act or an rule to omission natural accumulation State, dangerous proximity. Fast v. 2004 is next to or attached to condition. Stairs recog- building present ND a different We situation nized, sidewalks, from the “mere fact there snow and ice that of which can be sidewalk, upon may many mote miles person’s length. does not estab- be Green, party.” Supreme lish The of Alaska negligence Court declined to ¶ 8, 12, 673 N.W.2d 257. We extend the natural-unnatural accumulation ND however, said, “there rule used may premis- have be instanc- for sidewalks business Center, Inc., Food es could be for es. Kremer v. Carr’s where State liable 1969). (Alaska 747, ordinary keep 750-51 exercise care to ap- 462 P.2d proaches place to his sidewalks business in court said numerous miles of safe condition the use of the city Anchorage make it an in the would (cid:127) patrons properly and customers city remove all impossible task for the Lewis, premises.” Maxwell v. Neb. tra- and ice before individuals the snow 119, 122 186 N.W.2d In Max- the sidewalks. Id. at 751. versed well, applied “Ice-Away” owner business Mississip Court of steps January to her morning proximity pi slip considered the of the an remove accumulation of ice. Id. at 121. place impor an fall to the business as day, During temperature warmed own determining tant factor a business up, causing steps to have wet become liability. Indus er’s Fulton Robinson when the arrived. patron By the time tries, Inc., (Miss.1995). 664 So.2d left, patron the steps had become Fulton, In the court held a business owner falling temperature, causing because pedestrian liable to a was not who slip and fall patron to down the stairs business’s and fell snow and ice building. as she exited the Id. The court lot. Id. at 175. The court distin parking stated persons business owners who invite the facts in Fulton from other guished property ordinary on their must “exercise near the slip-and-fall cases that occurred light care in of or the what he knows premises. (citing Id. at 174. business protect know to an invi- .should (Miss. 727 Boydston, v. 605 Johnson So.2d danger notify tee from or to him of such Co., 1992); Derryberry Goodwin v. 553 danger rightfully he is prem- while the (Miss.1989)). Johnson, 40 In a So.2d proper ise and the engaged performance a of guest flight at hotel fell down a stairs purpose presence.” of the of his at slipped when she on an accumulation of 122. Johnson, ice. snow and 605 So.2d 728. recognize We that other courts in Johnson owner of The court stated the have extended the natural accumulation guests “knew housed on the hotel his were stairways. Supreme rule to of Court floor; they had to the second he knew that Wyoming an owner or of occupier held knew, floor; to the he ground descend and land for a pedestrian’s injuries is not liable known, or should have that it had snowed a resulting slip-and-fall from oc accident running and that water was off the roof steps that had nat curring accumulated stairs, partially melting onto the either Outzen, ural show and ice. Pullman v. partially freezing Id. at under the snow.” 416, (Wyo.1996); 924 P.2d 418 see also The court owner concluded the hotel Housing Goulart v. 57 Authority, Canton “duty had to use care to a reasonable 440, (2003) Mass.App.Ct. 783 N.E.2d 864 facility provide place safe for his (no duty accumulating to remove natural guests descend from the floor.” second snow and ice from unused Mi stairway); court in the distinguished Id. The Fulton Gush, 1051, chelet v. 256 A.D.2d 684 by stating outcome Johnson reason (a (1998) party N.Y.S.2d 297 had no liabili expect able to that a “business owner could ty conditions on unless safety of his monitor and condition party affirmatively created or exacerbated adjacent any physically stairs and other condition); Camp a hazardous Petersen v. Fulton, 664 parts building.” of So.2d Dist., Memorial 760 County Hosp. bell at 174. (Wyo.1988) (hospital P.2d 992 not lia was who, steps, Supreme patient descending Nebraska Court ble to while “duty to on natural held a business owner owes a and fell accumulation 644

snow, readily ly by premises, to her at of the apparent which was condition accident); Kilbury v. artificial, time of the occupier’s but rather 528, McConnell, 692 246 Ark. 438 S.W.2d conduct conditions— relation those (1969) (landlord duty no to tenant to owes is, considering all of circum that as natural temporary remove such hazards Quinlivan stances.” v. Atlantic & Great from com accumulation of ice snow Co., Inc., 244, Tea 395 Mich. 235 Pacific stairway). mon (1975) (citations omitted). 732, 739 The court Pullman stated recognize many that [¶ 23] We only if owner or liability that “attaches proposi- court cases have cited for the we accumula occupier an unnatural creates duty that occupiers tion owners or owe a substantially in vol tion that is different reasonableness to individuals on naturally occur.” ume or than would course still property used licensee and invitee Pullman, P.2d at 418. Other courts categorizations, change but this does not liability have stated that the standard used persuasiveness holdings. of their In a analogous slip-and-fall in sidewalk cases is fall involving slip patch case involving liability to the standard cases porch, ice located on a Court stairways. slips and falls that occur on of Wisconsin abandoned the common law Corey Davenport Busi College See v. distinction between landowners’ ness, Mich.App. 649 N.W.2d duty to licensees and their invitees for (2002); v. Terminal Railroad Ass’n Paul general negligence standard. Antoniewicz Louis, (Mo.Ct.App. St. 296 S.W.2d Reszcynski, 70 Wis.2d 236 N.W.2d 1956). Corey, opined In the court ap- The court stated special aspects have that create stairs no propriate duty occupi- of the landowner of uniquely harm or severi high likelihood those upon er to who come the land is that ty side distinguish of harm to them from ordinary Corey, in 649 of care under circumstances. slip-and-fall walks cases. N.W.2d at at 11-12. Id. analysis of After careful [¶ 22] holding Quinlivan [¶ 24] The in theories, jurisprudence behind the two nearly apriorism identical to the basic test

we conclude a reasonableness more throughout involving injuries our cases closely previous holdings and follows our sidewalks, which states “owe a landowners public policy. makes for As the better duty general to lawful maintain entrants to articulated, of Indiana Court has property their in a reasonably safe condi proper is the reasonableness standard circumstances, in view in tion of all the rule; otherwise, the natural accumulation another, cluding the of injury likelihood to occupier rule would dilute the owner or injury, the seriousness of the and the bur duty principles and undermine basic Fast, risk.” avoiding den 2004 ND public responsibility. Hammond v. Alle 111, 8, 265; Green, 680 N.W.2d see also 821, 82, gretti, Ind. 311 N.E.2d 12, ND 673 N.W.2d 257. “If a land asked, rhetorically The court if permits dangerous owner to ex conditions “the responsibility inviter is absolved all premises!,] ist on the must landowner who, then, ... will remove the inju take reasonable measures to prevent such accumulation of ice snow when ry presence proper to those whose accumulations hazardous?” become Fast, occupier, ty reasonably can be liability of an owner or foreseen.” therefore, sole “should not be determined ¶ 8. circumstances, general rule of reason

[¶ 25] including the likelihood premise liability another, ableness our cases is injury the seriousness of the rule to prudent follow these circum injury, and the avoiding burden of the risk. stances, and we decline extend our natu

ral accumulation rule used in cases involv IV ing sidewalks to these circumstances. [¶ 28] We reverse the district court’s duty Landowners have the to lawful en grant summary judgment and remand trants to maintain proper for proceedings consistent with opin- this ty condition, in reasonably safe in view of ion. circumstances, all the including the likeli another, injury hood of the seriousness MARING, MARY MUEHLEN injury, of the and the burden of avoiding J., concurs. the risk. The district court should have [¶ 30] The Honorable WILLIAM A. analyzed the City’s reasonableness of the NEUMANN, a member of the Court when in determining actions whether it had was,heard, this case resigned effective

breached its to Makeeff. March and did not participate presented [¶ 26] Makeeff testi this decision. mony that drizzling was overcast and and that the was slippery. WALLE, Justice, She VANDE Chief concur- presented employees evidence that ring of the in the result. applied Civic Center ice melt to the out I concur result reached sidewalks, entrances, door stairways so, the majority opinion. In I doing do not p.m. Civic Center at 12:00 and 8:00 join expansive majority standard the p.m., presented evidence that a Civic appears adopt under its “reasonableness employee Center told her that several oth agree test.” I that the “natural accumula- persons injured er had been day be tion” standard which this Court cited with cause of A steps. jury could con State, approval Fast 2004 ND clude from the presented by evidence applied as to municipal Makeeff, particularly the application of the sidewalks, necessarily does not apply to

ice regarding melt and the statement other municipal buildings, such as the Civic Cen- people slipping stairway, on the that the ter, by City owned the of Bismarck. One Civic Center had notice of the slippery of the rationales for the municipal sidewalk It conditions. is also reasonable and fore is, by standard as noted the cite the expect seeable to parents holding to be májority opinion to Kremer v. Carr’s Food their small they children while exit the Center, (Alaska Inc., 1969), 462 P.2d 747 Civic Center late at night after a circus. the numerous miles of sidewalks areas occupiers

[¶ Land in 27] are not which receive considerable snowfall on a premises, they Nevertheless, Fast, surers nor regular must basis. we endure unreasonable burdens to maintain did observe that involving cases accidents O’Leary, it. 251 N.W.2d at 752. In the on municipal persuasive sidewalks “are bar, however, case at landowner, the district court garding liability the of a in this in issuing summary State, erred judgment injuries with case the for sustained as a considering Fast, out whether acted result of snow and ice conditions.” reasonably course, both in its failure to warn and 11. premises Of Fast in maintaining its steps Civic Center in were by City, also sidewalks owned not a safe condition in view of all college but the State on a campus. is not clear to me whether It 2005 ND 66 previous our

majority intends overrule DVORAK, L. Plaintiff Bob North as Fast and the other cases such Appellee upon therein cases cited and relied Dakota v. accumulation reject the “natural and to DVORAK, Kathleen A. Defendant it to carve out a or whether intends rule” Appellant. attached standard where stairs different sidewalks, building, are con- public not No. 20040222. latter, If it is the I concur cerned. North Dakota. Court of further my goes concurrence no result but signal not with my agreement and does March by the authority upon much of the relied Nevertheless, agree I majority. building public attached

stairs to enter to public invited which fee, event, times for attend some most from the miles of sidewalks are different or other owner municipality for which is, course, responsible. There might be it contrary, to the some of cited authority Corey majority opinion, example, in the Business, 251 College Davenport But Mich.App. heavily upon the Michigan rely courts which, although obvious “open danger” our may part of rationale of be decisions, heavily em- previous is not so event, In I any therein. believe phasized necessarily steps do create hazards a flat present on sidewalk. majority opin- To extent the its reasonable- ion holds under “rule of may be liable municipality ness” that the condi- under certain circumstances for building which public tion of the stairs heavily municipality expects to be used, I in the concur result. CAROL RONNING

KAPSNER, J., concurs.

Case Details

Case Name: Makeeff v. City of Bismarck

Court Name: North Dakota Supreme Court

Date Published: Mar 23, 2005

Citation: 693 N.W.2d 639

Docket Number: 20040272

Court Abbreviation: N.D.