Fast v. State

2004 ND 111, 680 N.W.2d 265, 2004 N.D. LEXIS 212, 2004 WL 1209480
CourtNorth Dakota Supreme Court
DecidedJune 3, 2004
Docket20030310
StatusPublished
Cited by25 cases

This text of 2004 ND 111 (Fast v. State) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fast v. State, 2004 ND 111, 680 N.W.2d 265, 2004 N.D. LEXIS 212, 2004 WL 1209480 (N.D. 2004).

Opinions

VANDE WALLE, Chief Justice.

[¶ 1] Marcia and Gary Fast appealed from summary judgment dismissing their negligence action against the State. We affirm.

I

[¶ 2] Marcia and Gary Fast traveled to Minot from Frazer, Montana, on April 14, 2000. A spring snowstorm occurred in Minot on April 13 and April 14, and there was snow on the ground when the Fasts arrived at approximately 9:00 p.m. on April 14. Upon their arrival in Minot, the Fasts visited their granddaughter at Pioneer Hall on the Minot State University (“MSU”) campus. As the Fasts were leaving Pioneer Hall around 1:00 a.m. on April 15, 2000, Marcia Fast slipped and fell on ice on the sidewalk leading to the parking lot. She broke her right ankle as a result of the fall. The record indicates that, following the snowstorm, MSU cleared snow from the sidewalk using a Bobcat with a bucket. Photographs taken shortly after Ms. Fast fell indicate a small finger of snow remained on the sidewalk as a result of MSU’s snow removal efforts, and a [267]*267nearby area of the sidewalk had a low area in which melting snow pooled and subsequently froze (“pooled ice”).

[¶ 3] The Fasts sued the State, alleging negligence for failing to properly remove snow and ice accumulations from the sidewalk and warn individuals of the hazardous condition. The State moved for summary judgment. The district court initially denied the State’s motion because it determined a genuine or material issue of fact existed regarding where Ms. Fast fell. The State moved for reconsideration, claiming the Fasts did not submit any admissible evidence indicating Ms. Fast fell on the pooled ice instead of on ice located just below the nearby finger of snow that remained on the sidewalk. The State contended the district court incorrectly relied upon a conflict between Ms. Fast’s deposition testimony and unsupported allegations in the Fasts’ pleadings when it determined a material issue of fact existed regarding where Ms. Fast fell. Upon reconsideration, the district court granted summary judgment in favor of the State, concluding the only competent, admissible evidence—photos from Ms. Fast’s deposition in which she marked the location of her fall—indicated she fell just below the finger of snow on the sidewalk and not on the pooled ice. The district court concluded:

that there is no duty to completely remove snow and ice from sidewalks and that liability does not attach when injuries are sustained in falls where ice forms from melting snow that has been piled as a result of snow removal efforts. Deposition testimony of Minot State University maintenance employees explained the University’s snow and ice removal policies, and photographs taken right after the incident and later in the morning of the same day of the incident indicate that the sidewalks in the area of Pioneer Hall and the parking lot were reasonably clear of snow and ice.
The Court finds that because the evidence indicates that Ms. Fast did not fall in the area of pooled water/ice, any duty [the State] might have had to take remedial measures in regard to the pooled area of water/ice which may have created a hazard for pedestrians is not a relevant issue of fact or law in this case.

[¶ 4] On appeal, the Fasts contend the district court erred in granting summary judgment because material issues of fact exist. Further, they contend the district court erred in finding the State did not owe a duty to Ms. Fast to take remedial measures with regard to the sidewalk.

II

[¶ 5] Whether the district court properly granted summary judgment is a question of law which we review de novo on the entire record. Iglehart v. Iglehart, 2003 ND 154, ¶ 9, 670 N.W.2d 343.

[Sjummary judgment ... is a- procedural device under N.D.R.Civ.P. 56 for prompt and expeditious disposition of a controversy without a trial if either party is entitled to judgment as a matter of law, and if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving disputed facts would not alter the result. On appeal, we review the evidence in the light most favorable to the party opposing the motion, and we give that party the benefit of all favorable inferences which reasonably can be drawn from the evidence.

Green v. Mid Dakota Clinic, 2004 ND 12, ¶ 5, 673 N.W.2d 257 (citations omitted).

[¶ 6] The party seeking summary judgment has the burden of showing no genuine issue of material fact exists. Iglehart, 2003 ND 154, ¶ 10, 670 N.W.2d 343. However,

[268]*268the party resisting the motion may not simply rely upon the pleadings. Nor may the opposing party rely upon unsupported, conclusory allegations. The resisting party must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact and must, if appropriate, draw the court’s attention to relevant evidence in the record by setting out the page and line in depositions or other comparable documents containing testimony or evidence raising an issue of material fact.

Id. (quoting Anderson v. Meyer Broad. Co., 2001 ND 125, ¶ 14, 630 N.W.2d 46).

A.

[¶ 7] Actionable negligence consists of a duty, breach, and an injury that was proximately caused by the breach. Id. at ¶ 11. Negligence actions are ordinarily inappropriate for summary judgment because they involve questions of fact. Groleau v. Bjornson Oil Co., Inc., 2004 ND 55, ¶ 6, 676 N.W.2d 763. However, issues of fact may become issues of law if reasonable persons could reach only one conclusion from the facts. Id.

[¶ 8] MSU is a part of the state higher education system, and any claim against it is an action against the State governed by N.D.C.C. ch. 32-12.2. Skjervem v. Minot State Univ., 2003 ND 52, ¶ 12, 658 N.W.2d 750. Under N.D.C.C. § 32-12.2-02(1), “[t]he state may only be held liable for money damages for ... an injury caused from some condition or use of tangible property under circumstances in which the state, if a private person, would be liable to the claimant.” 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. Green, 2004 ND 12, ¶ 8, 673 N.W.2d 257. 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. Groleau, 2004 ND 55, ¶ 16, 676 N.W.2d 763.

[¶ 9] In Skjervem, we considered an MSU student’s claim that MSU negligently maintained its sidewalk because it did not attempt to correct a known hazardous condition. 2003 ND 52, ¶ 11, 658 N.W.2d 750. Skjervem was seeking damages for injuries suffered when she fell on ice that had accumulated on the sidewalk outside her campus apartment building. Id. at ¶ 2. Skjervem did not allege N.D.C.C. § 32-12.2-02(3)(f) impliedly created liability upon the State for icy conditions upon a sidewalk abutting a state-owned building or parking lot. Id. at ¶ 9.

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Cite This Page — Counsel Stack

Bluebook (online)
2004 ND 111, 680 N.W.2d 265, 2004 N.D. LEXIS 212, 2004 WL 1209480, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fast-v-state-nd-2004.