Makeeff v. City of Bismarck

2005 ND 60, 693 N.W.2d 639, 2005 N.D. LEXIS 65, 2005 WL 668408
CourtNorth Dakota Supreme Court
DecidedMarch 23, 2005
Docket20040272
StatusPublished
Cited by20 cases

This text of 2005 ND 60 (Makeeff v. City of Bismarck) 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
Makeeff v. City of Bismarck, 2005 ND 60, 693 N.W.2d 639, 2005 N.D. LEXIS 65, 2005 WL 668408 (N.D. 2005).

Opinions

SANDSTROM, Justice.

[¶ 1] Corinna Makeeff appeals a summary judgment order dismissing her negligence claim against the City of Bismarck (“City”) for failure to remove ice from an outside stairway. Concluding that the City had a duty to act reasonably, we reverse the summary judgment and remand for further proceedings.

I

[¶ 2] On March 22, 2002, Makeeff attended a circus at the Bismarck Civic Center (“Civic Center”). As she was leaving the Civic Center at roughly 9:30 or 10:00 p.m., she claims she was injured when she slipped on a patch of ice on an outside stairway leading out of the Civic Center. She sued the City, claiming it was negligent in failing to inspect the outside stairway and in failing to remove an accumulation of snow or ice.

[641]*641[¶ 3] . During discovery, Makeeff testified in her deposition that she slipped and fell down the stairway while she was carrying her child. She claimed she was holding onto the handrail as she started to slip, but as she was losing her balance she let go of the handrail to hold onto her child. She then slid down to the bottom of the stairway.

[¶ 4] Members of Makeeffs family, who attended the circus with her, stated in their depositions that the stairway was icy and that they noticed other people were slipping on the stairs. Makeeff stated in her affidavit that when she reported the incident to the Civic Center, a Civic Center employee asked her, “Are you one of the people who got hurt last night or the night before because we had quite a few people who fell?” Makeeff could not remember whether it had rained or snowed that day, but members of her family testified that it was foggy and misting.

[¶ 5] Makeeff testified she did not check the area where she fell to see whether there was any actual ice where she slipped and she did not have any pictures or video of the icy condition.

[¶ 6] The City produced a work sheet that indicated an employee applied “ice melt” on the stairway at 12:00 p.m. and at 8:00 p.m. that same day. It also produced records indicating that no precipitation was recorded in Bismarck on that day or the previous day. The City claims it had no knowledge of icy conditions prior to her complaint and it cannot be liable under current law if it did not create an unnatural and unreasonably dangerous condition.

[¶ 7] The City moved for summary judgment, and the district court granted its motion. The district court reasoned that the ice was the result of a natural accumulation of snow or ice. The district court also stated there was no evidence to suggest the City did anything to worsen the condition of the snow or ice.

[¶ 8] Makeeff appeals, arguing the district court erred in granting the summary judgment, because there is sufficient evidence to show the City was negligent in failing to clear its stairway of snow and ice. She argues the district court used the wrong negligence standard in issuing its summary judgment and argues the correct standard is reasonable care and foreseeability.

[¶ 9] The City, on appeal, argues that the correct negligence standard is whether it created an unreasonably dangerous, unnatural condition causing the slip and fall, and that even if a condition did exist, it had no prior notice of the condition.

[¶ 10] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a), and this Court has jurisdiction under N.D. Const, art. VI, § 2, and N.D.C.C. §§ 27-02-04 and 28-27-01.

II

[¶ 11] The district court ordered a summary judgment dismissing Makeeffs claim that the City was negligent in allowing ice to accumulate on the stairway of the Civic Center.

[¶ 12] “Summary judgment is a procedure for promptly resolving a controversy without a trial if the evidence shows there are no genuine issues as to any material fact and any party is entitled to judgment as a matter of law.” Gratech Co., Ltd. v. Wold Engineering, P.C., 2003 ND 200, ¶ 8, 672 N.W.2d 672; N.D.R.Civ.P. 56(c). “Even if a factual dispute exists, summary judgment is proper if the law is such that resolution of the factual dispute will not change the result.” Gratech, at ¶ 8 (citations omitted). “A de [642]*642novo standard of review is used to determine whether a district court erred in granting summary judgment.” Id. “On appeal, we view the evidence in the light most favorable to the non-moving party.” Id. “Negligence and proximate cause are fact questions unless the evidence is such that reasonable minds can draw but one conclusion.” Green v. Mid Dakota Clinic, 2004 ND 12, ¶ 6, 673 N.W.2d 257.

Ill

[¶ 13] Makeeff argues an ordinary negligence standard should be used to determine whether the City is liable for her slip and fall.

[¶ 14] Makeeff argues this Court has abandoned the special categories in premise liability actions. See O’Leary v. Coenen, 251 N.W.2d 746 (N.D.1977). In O’Leary, this Court abandoned the special common law classifications in favor of applying the ordinary principles of negligence to govern a landowner’s conduct as to a licensee and an invitee. Id. at 751. This Court stated an “occupier of premises must act as a reasonable man in maintaining his 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.” Id.

[¶ 15] The City argues this case is analogous to slip-and-fall cases that occur on sidewalks. We have said that a party is not liable for slippery conditions caused by snow and ice on a sidewalk, absent some act or omission creating an unreasonably dangerous condition. Fast v. State, 2004 ND 111, ¶ 12, 680 N.W.2d 265. We recognized, the “mere fact there is snow and ice upon a person’s sidewalk, does not establish negligence by that party.” Green, 2004 ND 12, ¶ 8, 673 N.W.2d 257. We have said, however, “there may be instances where the State could be liable for injuries sustained as a result of a slip and fall on snow or ice.” Fast, at ¶ 12.

[¶ 16] There are two distinct rules that have been adopted among jurisdictions that addressed the issue of slip-and-fall cases involving a natural accumulation of snow and ice. Wal-Mart Stores, Inc. v. Surratt, 102 S.W.3d 437, 442 (Tex.App. 2003). These contrasting theories can be summarized as the Massachusetts rule and the Connecticut rule. Id. The Massachusetts rule is recognized as the traditional rule and the Connecticut rule as the modern or restatement rule. Id. (citing 62A Am. Jur. 2d Premise Liability, §§ 699-701 (1990)). The Massachusetts rule, also known as the natural accumulation rule, stems from the case of Woods v. Naumkeag Steam Cotton Co., 134 Mass. 357 (1883). Mucsi v. Graoch Associates Limited Partnership #12, 144 Wash.2d 847, 31 P.3d 684, 688 (2001). Under this rule, “a landowner had no duty to protect invitees from conditions caused by natural accumulations of snow and ice.” Id. The Connecticut rule, on the other hand, was announced in Reardon v. Shimelman, 102 Conn. 383,128 A.

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Bluebook (online)
2005 ND 60, 693 N.W.2d 639, 2005 N.D. LEXIS 65, 2005 WL 668408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/makeeff-v-city-of-bismarck-nd-2005.