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Bundy v. Nelson

October 07, 2003

DEBRA LYNN BUNDY, ET AL., APPELLANTS, V. LOU ANN HOLMQUIST, DEFENDANT AND THIRD-PARTY PLAINTIFF, RESPONDENT, KATHLEEN A. LAMM, DEFENDANT AND THIRD-PARTY PLAINTIFF, RESPONDENT, KAREN M. JOHNSON, DEFENDANT AND THIRD-PARTY PLAINTIFF, RESPONDENT,
v.
WILLIAM B. NELSON, ET AL., THIRD-PARTY DEFENDANTS, RESPONDENTS.



Todd County District Court File No. C9-01-777

Considered and decided by Hudson, Presiding Judge, Randall, Judge, and Minge, Judge.

SYLLABUS BY THE COURT

Premises liability is not limited to owners and possessors of real estate and those acting on their behalf but extends to any person who creates an unreasonable risk of harm that results in injury.

The opinion of the court was delivered by: Minge, Judge

Reversed and remanded

OPINION

Appellants claim that respondent family created a condition on real estate that caused appellant wife's injuries. The district court granted summary judgment, dismissing the claim on the ground that respondent family had no duty to appellants because the respondent family neither owned nor possessed the property. Because persons who create an unreasonable risk of harm that results in injury are subject to liability for injuries caused by that condition, we reverse and remand for trial.

FACTS

Appellant wife Debra Bundy fell and broke her ankle when she stepped into a small hole. Respondent sisters, Lou Ann Holmquist, Kathleen A. Lamm, and Karen M. Johnson, had inherited from their mother the rural land where the fall occurred. Respondent sisters then sold the entire tract, which included a building site, to respondents Charles Reichert and William Nelson, who are professional developers. The developers entered into a purchase agreement to sell the portion with the buildings to appellant Debra Lynn Bundy and her husband, appellant Rick Bundy.

Three weeks before closing on their purchase, appellants and one of the developers visited the property. When they arrived, the sisters and some of the sisters' family members were at the property moving their mother's possessions out of the house and removing flower bulbs from the yard. The sisters had permission to temporarily store items in the house and to remove flower bulbs.

Two days before the closing on their purchase, appellants, with permission from the developers, began moving their possessions into the dwelling. Respondent Nelson even met appellants at the house and helped them gain entry. Incident to moving items into the dwelling, appellant wife stepped into a flowerbed. She asserts that she stepped into a hole, which caused her to fall and injure her ankle. Appellant husband asserts that the hole was concealed by grass approximately 6 to 18 inches tall. A friend of the appellants, who was there to help with the move, also testified that the hole was difficult to see unless it was viewed from a certain angle. Respondent sisters assert that neither they nor others helping them dug out any flowers or bulbs where appellant wife fell.

Appellants moved to make Reichert and Nelson direct defendants; the district court granted the motion. After completion of discovery, respondent sisters moved for summary judgment on the grounds that (1) they did not owe appellants a duty because the sisters did not own the property at the time of appellant wife's fall; (2) appellant wife had assumed the risk of injury; (3) appellant wife should not have stepped into the flower bed because it was an open and obvious danger; (4) there was not sufficient evidence that the sisters or others acting on their behalf had dug the hole; and (5) appellant wife was a trespasser, and as such was not owed a duty upon which she could recover. The district court granted summary judgment in favor of respondent sisters on the ground that they had sold the premises and were not acting on behalf of Reichert and Nelson. The district court therefore dismissed the sisters from the action, noting that the sisters may still be liable to Reichert and Nelson by way of contribution and indemnity. The district court stated that it was declining to reach the issues of assumption of risk, open and obvious danger, causation, and trespass, but went on to state that there were disputed factual issues that would have prevented summary judgment on those issues. Appellants seek review of the district court's order granting summary judgment in favor of the sisters.

ISSUES

Did the district court err by determining that the sisters did not owe a legal ...


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