Opinion
A3-02-19
April 11, 2003
MEMORANDUM AND ORDER
I. INTRODUCTION
Before the Court is defendant, Midcontinent Communications' ("Midcontinent"), Motion for Summary Judgment (doc. #19). Midcontinent asserts that North Dakota's recreational use statute prevents recovery. Plaintiffs, Randy and Irene Cudworth, resist this motion and submit their own Motion for Partial Summary Judgment (doc. #41). Cudworth contends that the recreational use statute is inapplicable, but even if it is applicable Midcontinent's conduct was willful and malicious; Midcontinent was not the owner of the property in question; and Midcontinent's conduct created an actionable nuisance. For reasons articulated below, Midcontinent's motion is GRANTED.
II. BACKGROUND
On February 23, 2001, Randy Cudworth was snowmobiling on Midcontinent's property near Langdon, North Dakota. Cudworth was severely injured when his snowmobile struck a fence or barricade made up of rope, wooden spools, and metal posts.
The parties disagree whether Midcontinent opened its land to the public for snowmobiling purposes. Midcontinent originally contended that Cudworth was a trespasser; however, it now claims that he had its "direct or indirect" permission to snowmobile on the property. Midcontinent contends it has allowed snowmobilers on its property for a number of years. Midcontinent states that it erected a barricade or fence only on a small portion of the southwestern part of its property and the purpose was not to prevent snowmobilers from using it, but to prevent people from dumping garbage on the newly seeded grass.
Cudworth disagrees with Midcontinent's classification of the land as "open" to the public. Cudworth cites the fact there was a barricade or fence and the "Keep Out," "No Trespassing" and "Private Property" signs as evidence that at least a portion of Midcontinent's property was not open to the public. The primary question for the Court to decide is whether North Dakota's recreational use statute applies when a landowner attempts to prevent others from using his or her land for recreational purposes by erecting a barricade or fence and posting no trespassing signs.
III. DISCUSSION
Rule 56 of the Federal Rules of Civil Procedure provides for the granting of summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Moreover, all evidence and inferences are to be viewed in a light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). With this standard in mind, the Court begins its analysis.
A. Recreational Use Statute
In 1965, North Dakota enacted a statute to encourage landowners to make their land available to the public for recreational purposes. N.D. Cent. Code ch. 53-08 (1999). The legislature limited a landowner's liability in exchange for opening the property to the public for recreational use. Olson v. Bismarck Parks Rec. Dist., 642 N.W.2d 864, 870 (N.D. 2002). The North Dakota Supreme Court stated that, in essence, "limited tort immunity is the quid pro quo for the noncommercial opening of property to the public for recreational use." Id.
It is undisputed that the vast majority of Midcontinent's property was open to the public for recreational purposes, including snowmobiling. The dispute lies in whether Midcontinent opened the Southwest portion of its property. Cudworth argues that the quid pro quo for tort immunity is the opening of property and only the non-posted portion of the land is protected by the statute. Midcontinent, on the other hand, argues that all of its property was open for snowmobiling, but even if a small portion was off-limits, the statute protects landowners who have specifically prohibited recreational use.
1. Protection Against Trespassers
Cudworth construes the recreational use statute to require the landowner to affirmatively open his or her land to the public or at least not affirmatively exclude the public from his or her land. However, this narrow interpretation is not supported by the statutory language or case law. The "quid pro quo" is on a statutory level; in other words, the legislature statutorily gave recreational users permission to use a person's property in exchange for statutory abrogation of the property owner's duty to make his premises safe. An affirmative act on the part of the landowner is therefore not necessary to obtain the recreational use statute's protection.
The recreational use statute does not, however, prohibit a landowner from bringing an action against a recreational user for the user's failure to exercise due care in that person's use of the land and in that person's activities thereon. N.D. Cent. Code 53-08-06 (1999).
An examination of North Dakota's recreational use statute supports this broad interpretation. Section 53-08-02 states the general rule that a landowner "owes no duty to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes." Subject only to the exceptions contained in section 53-08-05, section 53-08-02's broad language applies to a recreational user no matter what his or her status. Section 53-08-03 then clarifies section 53-08-02 by reaffirming that in cases where the landowner may have been granted permission, the users do not gain invitee or licensee status. Thus, the legislature was careful to prevent a landowner from losing his protection under the recreational use statute by granting permission or acquiescing to use. Then examining section 53-08-05 the only exceptions to the general rule are where a user pays for access to the land or where the landowner willfully or maliciously fails to warn or guard against a dangerous condition. Therefore, when reading the various sub-sections together it becomes clear that the general rule controls situations where a user is a trespasser.
The case law, albeit non-North Dakota case law, also supports the interpretation that the statute protects landowners who specifically exclude users from the land. See e.g., Cacia v. Norfolk W. Ry. Co., 290 F.3d 914, 919 (7th Cir. 2002) (declaring that the Illinois legislature "wished to protect landowners whose property is used gratuitously, with or without their permission, for recreational purposes"); Collins v. Tippett, 203 Cal.Rptr. 366, 368 (Cal.App. 4th Dist. 1984) (stating that California's recreational use statute immunizes landowners against liability to trespassers); Corey v. State, 703 P.2d 685, 686 (Idaho 1985) (closing one specific portion of the property does not preclude immunity under the recreational use statute); Larini v. Biomass Ind., Inc., 918 F.2d 1046, 1050 (2d Cir. 1990) (noting that the employment of signs and blockades to inhibit entry by users does not render the recreational use statute inapplicable); Friedman v. Grant Cent. Station, Inc., 571 A.2d 373, 375-77 (Pa. 1990) (declaring that recreational use statute immunizes landowners regardless of whether the user had permission to utilize land for recreational purposes); Peterson v. Schwertley, 460 N.W.2d 469, 470-71 (Iowa 1990) (applying recreational use statute abrogation to trespassers); Ornelas v. Randolph, 847 P.2d 560, 567 (Cal. 1993) (stating that California's legislature could reasonably determine that a landowner should not be "held liable for injuries sustained to a trespasser from the recreational use of the owner's property"); Verdin v. Louisiana Land and Exploration Co., 693 So.2d 162, 169 (La.Ct.App. 1997) (declaring that permission to use the land for recreational purposes is irrelevant).
The Court finds these cases persuasive, especially when considering the similarity of the recreational use statutes analyzed in those cases to North Dakota's recreational use statute. Compare Cal. Civ. Code § 846 (California), and Idaho Code § 36-1604 (Idaho), and 705 Ill. Comp. Stat. 65/1 et seq. (Illinois), and Iowa Code ch. 111C (Iowa), and N.Y. Gen. Oblig. Law § 9-103 (New York), and 68 Pa. Cons. Stat. §§ 477-1 to 477-8 (Pennsylvania), with N.D. Cent. Code ch. 53-08. For instance, in Peterson, supra, the court analyzed an Iowa statute that is substantially similar to North Dakota's statute. The court found significant the phrase "an owner owes no duty of care to keep the premises safe for use by others for recreational purposes." Peterson, 460 N.W.2d at 471. The court stated that the "by others" language embraced all persons other than the landowner. Similarly, the use of the "by others" language in North Dakota's recreational use statute refers to all others, those with permission and those without permission.
The Court also finds sound the Peterson court's logic as it pertains to the overall statute. It stated that blanket abrogation of a landowner's duty to make the premises safe would more readily promote the stated objective of the statute, i.e. to encourage use of land for recreational purposes. Id. at 471. If abrogation depended on whether the landowner granted permission, the court stated, then the landowner would be less likely to grant such permission. Id. Moreover, the landowner's word would be pitted against that of the land's user on the question of whether such permission was actually granted. Id. This court also agrees with the Ornelas court, supra, which stated that it is "[unfair] to permit claims for negligence in favor of persons who choose to enter the lands of others for [recreational purposes]." Ornelas, 847 P.2d at 567. To hold that the recreational use statute is inapplicable to a case like the present would give a trespasser greater freedom to sue a landowner than those users who obtained permission. The Court is confident that the legislature did not intend such a result.
In summary, the statutory language and case law support a finding that the recreational use statute protects a landowner who attempts to prevent others from using his or her land for recreational purposes by erecting a barricade or fence and posting no trespassing signs. Thus, the recreational use statute applies to the present case.
2. Willful or Malicious Acts
The statute, even though applicable, does not protect a landowner's wilful or malicious acts. N.D. Cent. Code § 53-08-05. Cudworth, apparently realizing that he cannot prove wilfulness or malice, argues that the term malice includes presumed malice, which is defined as a reckless disregard of the rights of others. See McLean v. Kirby Co., 490 N.W.2d 229, 246 (N.D. 1992) (defining presumed malice). However, Cudworth's contention is erroneous because the case he cites only discusses presumed malice in the context of punitive damages. Id. North Dakota's punitive damages statute specifically included presumed malice. See N.D. Cent. Code § 32-03-07 (repealed). Here, the recreational use statute is absent any mention of presumed malice. Thus, the Court must apply only actual malice and Cudworth alleges no facts that indicate Midcontinent acted with actual malice or evil intent.
B. Public Road by Prescription
Additionally, Cudworth argues that the recreational use statute does not apply because Midcontinent was not the owner of the property. Cudworth contends the public acquired a road by prescription. To prevail under this theory, Cudworth must establish general, continuous, uninterrupted, and adverse use of the road, by the public, under a claim of right for twenty years. Hartlieb v. Sawyer Tp. Bd., 366 N.W.2d 486, 488 (N.D. 1985). The problem with Cudworth's assertion is that the evidence does not demonstrate "adverse use." The record demonstrates only permissive use. Also, even if there was some type of public easement, Midcontinent would still be an "owner" entitled to the recreational use statute's protection. Collins, 203 Cal.Rptr. at 368. Thus, Cudworth's adverse possession claim must fail.
C. Doctrine of Acquiescence
Cudworth also contends that the public acquired the land through acquiescence. Acquiescence is a "release or abandonment of one's rights, if having rights, he stands by and sees another dealing with his property in a manner inconsistent with such rights, and makes no objection while the act is in progress." Knutson v. Jensen, 440 N.W.2d 260, 262 (N.D. 1989). Acquiescence differs from adverse possession in that a party need not show the use of the land was adverse to the original owner. Id. This doctrine does not strictly apply to the present case because acquiescence is generally used to settle boundary line disputes between two property owners. Moreover, mutual recognition of a boundary line is necessary for acquiescence. Id. Cudworth alleges no facts that indicate any other person or entity recognized a boundary line different from what Midcontinent recognized. This is simply a creative claim by Cudworth's attorney. The Court, therefore, finds that acquiescence is inapplicable to the present case.
D. Nuisance
Cudworth alleges a separate cause of action under North Dakota's nuisance laws. Nuisance requires a party to commit an unlawful act or omission, N.D. Cent. Code § 41-01-01, because the recreational use statute declares that a landowner owes "no duty," the barrier could not be a nuisance. Therefore, the recreational use statute applies and Cudworth's nuisance claim fails as a matter of law.
IV. CONCLUSION
Midcontinent's motion for summary judgment is GRANTED (doc. #19). Accordingly, Cudworth's motion for partial summary judgement is DENIED (doc. #41). Cudworth's claims and causes of action are ORDERED DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.