Jaste v. Gailfus
Guardian of Delima Jaste, Plaintiff and Appellant
v.
James W. Gailfus and Jim Gailfus
Insurance Agency d/b/a Jim's
Insurance, Defendants and Appellees
Judge John C. McClintock, Jr.
| Appellant: | Dickson Law Office | |
| Appellee: | Traynor Law Firm, PC |
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I. The District Court erred by finding, sua sponte, an open and obvious danger existed because Defendants had not raised this as a ground for summary judgment and Delima Jaste was not provided with notice and an opportunity to address this issue.
II. The District Court erred in finding that an "open and obvious" condition existed as a matter of law.
III. Defendants' initial grounds for summary judgment should be denied as Defendants have a duty to provide business invitees, such as Ms. Jaste, with a reasonably safe means of ingress to and egress from the premises.
Appellee's Statement of the Issues:
I. Whether a court is limited to granting summary judgment on grounds stated in a motion if there are other grounds which require judgment as a matter of law.
A. When a case may be decided as a matter of law, a trial court may grant summary judgment on grounds not raised by either party.
B. The trial court did not abuse its discretion when it denied Jaste's Motion for Reconsideration.
II. Whether the district court erred in applying the Open and Obvious Danger Doctrine in a case involving a single step where there was nothing about the character, location, or surrounding conditions that created an unreasonable risk of harm.
A. The Open and Obvious Danger Doctrine applies in North Dakota's premises liability law.
B. Steps of differing floor levels are not ordinarily actionable unless unique circumstances surrounding the area in issue make the situation unreasonably dangerous. C. Jaste failed to establish the risk presented by the sidewalk step in front of the Gailfus Office Building was unreasonable.
D. Gailfus may avoid liability under a theory of failure to warn for injuries caused by an open and obvious danger.
III. Whether Gailfus owed a duty to Jaste to repair or make improvements to a public sidewalk on land adjoining the Gailfus Office Building.
A.This Court should address an issue that will arise on remand because the issue may be decided as a matter of law.
B. North Dakota law does not include a duty on the part of an adjoining landowner to injured third persons for defects in a public sidewalk.
C. Jaste's status as an invitee or business invitee of Gailfus does not create liability for an adjoining landowner for injuries sustained on a public sidewalk.
D. There are no facts in the record to support application of the "Special Use" Exception.
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