Sendelbach v. Grad

grant courts of this State to policy of the reopen judgments, SENDELBACH, when Mary motions Plaintiff Ann made, grounds when the stated

promptly Appellant, and of Rule re satisfy requirements 60 for v. appearing answer when an opening, and Grad, and Elizabeth Edward GRAD presented. defense state a meritorious Appellees. and Defendants Montz, (N.D.1974); King N.W.2d v. Civ. 9212. No. Kinsella, (N.D. Kinsella v. 32-17-13, 1970). also Sec. N.D.C.C. North Dakota. Supreme Court of course, may, terms be im Reasonable 15, 1976. Oct. Montz, King v. posed. Montz, King reopen a motion filed within seven days an answer after

entry judgment held to promptly were

filed under the circumstances. us, proposed the motion and answer

before days. within four business

were filed strong expressed have often having upon cases tried their

preference Falls Da Construction Co. v.

merits. Sioux (N.D.1961); Flooring,

kota N.W.2d Olson, (N.D.1953).

Azar v. policy of our courts to treat also

applications reopen judgments default leniently applications more than

somewhat reopen judgments entered after contest City Wahpeton

ed trials. Drake-Hen

ne, Inc., (N.D.1975). true, course, general-

It that we

ly sustain the trial courts in acting within discretionary powers reopening

their

judgments under If there Rule 60. were here, lawof involved we would considerably

find this case more difficult.

However, we reverse primarily ques- law, 55(a),

tion of under Rule than rather

under Rule 60. pro-

Reversed remanded for further

ceedings opinion. consistent with this

ERICKSTAD, J., PEDERSON, C. SAND, JJ.,

PAULSON concur.

4Q7 Farhart, Minot, Rasmuson, Lian, Olson & appellant; argued Ste- Lian, ven Minot. C.

McClintock, Kraft, Rugby, Butz & by Car- appellees; argued defendants and Kraft, Rugby. ian J.

ERICKSTAD, Justice. Chief serious received Mary Ann Sendelbach being result leg left injuries to her Edward owned by a bitten occurred The incident Grad. Elizabeth shall first examine Mrs. Sendelbach’s April 1973. A suit We farm on Grads’ Grads, argument was, from the damages based that she at the to recover liability, resulted negligence injury, and strict place an invitee as matter appeal the Grads. verdict for This in a was instructed of law. McHenry order of the from an is taken between a licensee and an invi- denying District Mrs. Sendel- County Court and, response special tee to a verdict new trial. for a motion bach’s that question, found Mrs. Sendelbach was a the time injury. licensee at of the trial asserts that the Mrs. Sendelbach refusing to re- adopt her court erred import finding that The of the Mrs. liabili- applying strict instructions quested Sendelbach was a rather than an injuries by caused animals for standard ty injury invitee at the time of the with defining propensity”, and “vicious regard to the the standard of care Grads law, find, matter that failing to as a her. An invitee is owed a owed premises an invitee on the she was Grad to pre care the landowner injury. at the v. Nash Finch vent his Johanson and her husband Mrs. Sendelbach When Co., (N.D.1974); Huus v. farming, they gave their chick- from retired 763, (1949). 505 Ringo, 76 N.D. 39 N.W.2d Elizabeth Edward and Grad. ens to return, the Grads, gave Sendelbachs free duty possessor general, only the time, period after the eggs refrain of land owes licensee is to from purchased occasionally eggs Sendelbachs injuring willfully wantonly him. the Grads. from Co., Ashley Realty v. 199N.W.2d 899 Werth (N.D.1972); Costello v. Farmers’ Bank of the Grad farm drove The Sendelbachs 131, Valley, 34 Golden N.D. 157 30, N.W. 982 purchase three April 1973 dozen on recognize exceptions no this they When found one at the eggs. rule, house, applied barn to be when they necessary. went to the where Mrs. milking Ashley Realty the cows. were v. There Werth Grad eggs short of three dozen stored in the two The determination of one is was too busy As Mrs. Grad to leave barn. premises a licensee or invitee on the barn, gather Mrs. the Sendelbach offered to necessitates another those terms eggs coop two from the chicken herself. the policies with reference to the of the distinc the record unclear from whether Mrs. It is tion. assented to this. Grad higher been stated It has that the stan- get coop, order Mrs. Sendel- imposed of care dard on landowner re- gate pass through had to near a bach garding paid invitee is price an the for the doghouse. past dog- As she walked the economic benefit Restatement of obtained. house, Queenie, dog the Grads’ from came a; Torts, 332, 343, Comment see W. §§ leg. her and her on the left behind bit lower Prosser, Torts, 1971). p. (4th 386 Ed. Under evidence that had dog There the test, the so-called “economic result- benefit” human Mr. being. ever bitten another acquires reasoning, this a visitor from dog testified that the would at the nip Grad presence the of invitee his status when re- them, herding heels of cattle when potential pecu- to business of at least lates only go it would after cattle on that niary profit possessor. E.g., had birth to command. State, 335, Schwerdtfeger Cal.App.2d v. 148 days prior pups a few to the inci- litter (1957); McNulty Hurley, 306 P.2d 960 had been of. disposed and all but one dent (Fla.1957). So.2d 185 testified that the was “not as Grad Mr. prevalent theory justifying the The other friendly” day and was commonly referred to that “upset”. young grand- He testified his theory”. view, with “invitation this played pups had Under children express implied occupi- incident that weekend. invitation without were eggs produced primarily that for status. creates the invitee land er of repre family; use the Grad that there were be such that invitation week; once or that the eggs reasona extra twice a has the invitor exercised that sents previously for would call ahead be- premises safe Sendelbachs making the care ble Country coming eggs—but not fore did do so E.g., Hanson Town invitee. 542, 144 injury; Center, Inc., day that the Sendelbachs Iowa Shopping usually they socially visited when came v. Portsmouth (1966); Dowd this was the first time Mrs. eggs; A.2d 105 N.H. Hospital, eggs. went the barn for Sendelbach A.L.R.2d Mrs. Sendelbach testified the reason flatly rejecting cases, than rather Many purchased eggs they was because she test, adopt both tests benefit the economic fresh, price. were because Preston v. alternatively. E.g., used unclear evidence whether Mrs. from Sleziak, 383 Mich. going assented Mrs. Sendelbach’s Grad Hospital, su- Dowd v. Portsmouth (1970); coop. chicken the pra. inconclusive as to This evidence is Torts, (Second) § of Restatement the of whether circumstances Mrs. Sendel- classes invitees: defines two of (1965) farm, par presence bach’s the Grad public either invitee a “(1) An invitee specific injury, the of ticularly place her business visitor. or a representation as to imply were such a person invitee is a who is “(2) public A making the care the Grads on land or remain enter invited the safe for her. Nor is evidence premises purpose for public the member of eggs the sale of conclusive public. open is held the land which pecuniary profit or expectation was of a visitor is a who is “(3) A business service merely was to a friend who want land for a or remain on invited enter eggs. say cannot that ed farm fresh directly indirectly connected or purpose reasonable men could draw one conclu dealings possessor with the business with Thus, presented. the facts sion from the land.” refusing trial court was correct in to rule court’s instructions The district was, at the that Mrs. Sendelbach visitor, only spoke business invitee injury, her an invitee as a matter of law. public no reference to the term making Giese, e.g., Kresel See N.W.2d 780 reply brief of appellant’s Mrs. invitee. Thompson, (N.D.1975); Gleson v. regard- that argues comments Sendelbach (N.D.1967); Degenstein v. Ehr applicable visitors “more ing man, business (N.D.1966). limit Thus we will our instant case.” stated Mrs. brief It was Sendelbach’s category. of invitees to that treatment quarrel “the with the that has no real crux of the distinction between invitee as definition” instructions, argument being invitees is as stated Com- only that licensees (Second) of applied a to the Restatement should have that defini- ment the court 332, Torts, her an supra: invitee as matter find § Therefore, we need not rule law. are limited to those “Invitees definition. correctness enter remain on land an who or implied carries with it invitation which maintains that Mrs. Sendelbach assurance, or under- representation, erred in instruction as to trial court its standing has been that reasonable care regarding dog bites. common law doctrine premises, and make prepare used point, on that proposed Her instruction . reception. safe for their . .” them court, rejected trial reads by the which was (in part) as follows: testimony there that In this case called; keeps “One who or owns an animal anyone were sold to who that eggs sale; he or she or know knows should eggs were never advertised being the circum property, owners’ that is liable to dangerous people in this case. stance by the animal irre- injured any person any negligence by the (sic) of gardless dealing subject speak Treatises with defendants.” regarding Law in- English Common impos- juries caused domestic animals as adopt- given by the court The instruction liability on the owner where the strict appellant’s proposed language of ed has vicious tendencies and the own- animal instruction, care standard but added due knows or should know of such tendencies. er the owner’s applied if viciousness and Prosser, Torts, (4th pp. W. 499-503 See is found: knowledge thereof Ed.1971); James, Harper & The Law of personal “An owner is not liable 2, Torts, pp. is a Vol. 836-837 There dog unless the injuries inflicted his trend, however, rejecting this strict reasonably knew or should owner E.g., standard. Brogan, Hansen v. dangerous known (1965); King 400 P.2d 265 Mont. owns a is bound to vicious. One who Association, 100 N.H. Blue Mountain Forest notice of vicious or take Am.Jur.2d, 123 A.2d 151 itself, or trait of the or of propensity 328-329; Animals, pp. Harper belongs, which it which was the class to James, supra, pp. 838-839. to the owner or which known previously we have not ruled on this As If the have been known to him. should and since the case law in other dog’s propensities are of na- traits flux, necessary jurisdictions is in it is injury, to cause the owner likely ture liability a standard of we enunciate guard to exercise reasonable care must quality expectancies of life and the fits injuries prevent and to or dam- against people of North Dakota. of reasonably anticipa- to be ages which propen- ted from the or vicious argued appellant’s that a brief dog. sity liability of the very important strict standard is to rights victim, of the and that the owner has the bur- “The this case “easily dispose animal could of an of the proving dog that an owner of the den of (presumably by disposing of the ani- risk” dog danger- knew that involved argument mal). This fails to take into con- vicious, reasonably should have ous or the utility pre- of the animal and sideration this, so, and if that the owner did known balancing a cludes commonsense of all in- ordinary guard exercise care to not concerned. terests damage prevent injury and to against expected from such ani- particular of this case indicate The facts mal. ...” dog kept that the Grads’ on the farm to Indeed, major herd cattle. a facet of liability of what an owner’s argument was vi- plaintiff’s damage by done an animal is one of is for nip hinged on the fact that she would cious impression in North Dakota. Jurisdic first herding at the heels of the cattle while have ruled on this matter often tions which them. distinguish species between which are animal, value of a domestic dangerous by very their nature and deemed put in economic terms or viewed more in- normally those considered harmless. e. tangibly, regard pet, general- to a is as with Latare, (Iowa g., Wenndt v. dispose ly not such that its owner should 511, 127 1972); Mulvey, Warwick S.D. notice of an incident which a Glover, (1964); Crunk v. N.W.2d “vi- conceivably could find indicative of a As it is Neb. propensity”. cious undisputed that a domestic be here class, findings will be longs to the latter our 1939 law review language from a This subject perhaps will likewise be limited to a more suc- so limited. We article on the is injuries on their animals cinct: discussion perils liable for unusual concealed held exhibi-

“Indeed, ownership and if the protect harboring against which the licensee cannot and the animals of wild tion himself, liability predicated, this are rec- dogs protect property lawful, the existence of the concealed it would be anomalous not on ognized as very give act of that because of but on failure warn- danger, declare them, all cir- Negli- is liable under existence.” 65 keeping one of its C.J.S. injured by them. 63(39), cumstances gence pp. 713-714. Dan- McNeely, A Footnote On The court’s instruction Animals, 37 Mich.L.Rev. gerous appears specialized us to a bite peril” “hidden “con- definition liabili find that standard danger” exception cealed the licensee animal a injuries caused ty The possessor as set out above. standard possessor of premises of the land, peril”, he has notice of “hidden once the standard different than animal expose to knowingly not owes injuries to visitor caused regarding peril. court here licensee district means. other when the owner instructed the danger- knew or should known adopt strict Having declined animal, of an must exer- propensity he ous situation, for this we still liability standard guest protect care to cise reasonable error in there was determine whether denotes, from The instruction requiring both jury instruction giving a higher duty care than anything, if and a propensity of a vicious knowledge adopted in Werth. Thus would error care standard. appellant’s favor. be in the invitee- we found the traditional Recently ap- to be workable when standards say not that the instruction and doWe exceptions are carved out of the propriate necessarily question are cor- special verdict Realty v. Ashley rules. Werth of the law in all situations. rect statements Werth, we However, particular the lan- this peril” excep- the “hidden reference to made inappropriate. guage used was standard, citing the to the licensee encyclopedia language: following also ascribes er Mrs. Sendelbach give to with the rule district court’s refusal “In ror to the accordance 63(32), or supra requested pro an owner “vicious instruction discussed premises ordinarily charge in pensity”: “ any give affirmative to not under tendency propensity’ is ‘Vicious warning perils, of concealed al- licensees any might act to do which an animal might, by rea- though he the exercise of safety prop- endanger and care, have discovered the defect sonable situation, of others in a wheth- erty How- danger which caused the or anger, or play or in some er it be ever, knowingly duty not or he owes a of untamed nature.” outbreak into, to let the licensee run or willfully portion again quote of the district to, danger peril, or expose him a hidden instruction to court’s steps rea- take whatever but should appel- order to contrast it with the bites circumstances, sonable, pro- under the requested instruction: lant’s peril, licensee from such tect dog’s propensities are of traits or “If the give accordingly should likely injury the owner a nature cause re- warning, or information guard exercise reasonable care condition, dangerous which is garding the injuries or dam- against prevent and to but open to the licensee’s observation anticipa- ages which are be occupant or knows or the owner of which propen- from the failure of this ted know. should (Italics ours.) dog.” proprietor may sity duty, the owner such re-examination. We do not at this language to be the italicized We find requested necessary in- essentially appropriate the same time find struction, possible exception of the with the further re-examine the common law defi- of un- reference to “outbreak latter’s they may and rules of law as nitions language That is unneces- licensees, nature.” tamed trespass- invitees and apply to concise, light of the clear instruction sary in ers.” Therefore, there was no error in given. I think it is now time for Werth to self- refusing give requested instruction. destruct. herein, stated the order the reasons For ' decided, Werth was and immediate- Since from is affirmed. appealed decision,1 ly prior to the Werth about fif- jurisdictions abrogated teen have the dis- PEDERSON, JJ., SAND, PAULSON and between tinction invitees and licensees ei- concur. wholly large ther or to a extent. Nine have VOGEL, (concurring specially). Justice distinction, twenty continued the have concur, with one I but reservation. not acted. Two have elevated the status of guests separate category, social into a majority opinion principally relies three continue to call them “licensees” Ashley Realty 199N.W.2d 899 but Werth continuing the distinction be- limit the (N.D.1972), harshness of former distinc- words, and “licensees.” tween “invitees” tion. In other about two-thirds of jurisdictions which have reconsidered recog- I am concerned that this renewed between licensees and invi- might rule in Werth stated nition have tees abandoned the distinction and perpetuating the effect of a doctrine have adopted the modern rule. long outlived its has usefulness and recognizes, abolished. As Werth should be high I think it is time for North Dakota jurisdictions 1972 some had abol- even in doing to consider the same. between the distinction invitees and ished I concur in the result in this case because and substituted a rule that reason- licensees of abandonment of the distinc- the conduct pos- ableness of of owners and argued. was not briefed or I add this of land under all the sessors circumstances my concurrence to make clear that concur- proper test provided determining this case rence in is not based on re- liability. opinion recognized The Werth v. Ashley Realty on Werth except liance Co. distinguishing the rule invi- between tempo- insofar as decision states a rule attack, licensees was then under tees and in effect rarily likely disappear merely and Werth held that the rule would any time. to in North Dakota for the be adhered would be reexamined later. present and ¶ 3. Syllabus PEDERSON, JJ., SAND concur Justice special VOGEL’s concurrence. again we forecast a reexamina

tion of the common-law distinction. Pic, (N.D. 226 N.W.2d

Francis

1975), we said: presented of time passage

“The has not opportunity to re-examine the com- conception

mon nor law have cases been

presented which would be suitable for abrogated porter Balach, 1. Minnesota the distinction thirteen volume as Werth. Peterson v. released, days before Werth and its deci- 294 Minn. appears sion the same North Western Re-

Case Details

Case Name: Sendelbach v. Grad

Court Name: North Dakota Supreme Court

Date Published: Oct 15, 1976

Citation: 246 N.W.2d 496

Docket Number: Civ. 9212

Court Abbreviation: N.D.