Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable David E. Reich, Judge.
The opinion of the court was delivered by: Kapsner, Justice.
[¶1] Jacqueline and Randall Schmidt appeal from a summary judgment dismissing their personal injury action against Gateway Community Fellowship and North Bismarck Associates II after the district court decided Gateway Community Fellowship and North Bismarck Associates II were entitled to recreational use immunity because Jacqueline Schmidt entered a parking lot at a shopping mall for recreational purposes and she was not charged to enter the premises. The Schmidts argue there are factual issues about whether Jacqueline Schmidt entered the premises for recreational purposes and whether there was a charge for her entry to the premises. We reverse and remand.
[¶2] The Schmidts alleged Jacqueline Schmidt injured her right ankle on September 14, 2002, when she stepped in a hole in a paved parking lot on the north side of Gateway Mall shopping center in Bismarck while attending an outdoor automotive show and skateboarding exhibition sponsored by Gateway Community Fellowship, a non-profit church affiliated with the Church of God. At the time, Gateway Community Fellowship leased space for church services inside Gateway Mall from North Bismarck Associates II, the mall owner.
[¶3] On September 14, 2002, Gateway Community Fellowship sponsored an outdoor automotive show and skateboarding exhibition, the "Impact Auto Explosion", on a paved lot on the north side of Gateway Mall from 10 a.m. to 4 p.m., which was during the mall's regular Saturday business hours. According to Pastor Barry Saylor, the exhibition was held as a community outreach program to expose area youth to the teachings of Jesus Christ. Gateway Community Fellowship distributed videos and approximately 500 fliers during the exhibition, explaining the outreach program. The public was not charged an admission fee for entry to the exhibition, but Gateway Community Fellowship procured exhibition sponsors to defray costs. Additionally, the automotive show included several contests, and Gateway Community Fellowship charged car owners a registration fee to enter the contests. Gateway Community Fellowship had sponsored a similar event in 2001 which, according to Pastor Barry Saylor, was "extremely successful," and resulted in 1,200 more people at the mall than on a comparable day in 2000. The 2001 exhibition was on a parking lot on the south side of Gateway Mall, and according to Pastor Barry Saylor, the mall manager for North Bismarck Associates II directed Gateway Community Fellowship to hold the exhibition on the same weekend as Folkfest on the parking lot on the north side of Gateway Mall to increase visibility from Century Avenue in Bismarck. North Bismarck Associates II did not separately charge Gateway Community Fellowship for use of the parking lot for the 2002 exhibition. The parking lot on the north side of Gateway Mall had been part of a lumber yard of a previous mall tenant, and the area had holes and depressions in the concrete from the removal of posts that had formed part of an enclosure around the lumber yard. According to North Bismarck Associates II, the area of the parking lot used for the 2002 exhibition usually was roped off to be less accessible by the public.
[¶4] On September 14, 2002, Jacqueline Schmidt and her son were driving by Gateway Mall when they saw activity in the parking lot north of Gatewall Mall, and they stopped at the exhibition. According to Jacqueline Schmidt, they decided "it would be fun. They had skateboarders, and they had music, and it was a nice day out.... We were enjoying ourselves. We were watching the skateboarders. We were looking around, looking at the vehicles. It was a pleasant day out. It was very nice out, and we were just enjoying spending time together, looking at the activities." Jacqueline Schmidt and her son were not charged an admission fee for entry to the property or to the exhibition. According to her, she severely injured her right ankle as she walked across the parking lot and stepped in a posthole from the prior tenant's lumber yard.
[¶5] The Schmidts sued Gateway Community Fellowship and North Bismarck Associates II, alleging they negligently and carelessly failed to eliminate the holes in the parking lot or to warn exhibition attendees about the holes and were liable for the hazardous condition on the premises. Gateway Community Fellowship and North Bismarck Associates II separately answered, denying they were negligent and claiming the Schmidts' action was barred by recreational use immunity under N.D.C.C. ch. 53-08. Gateway Community Fellowship and North Bismarck Associates II separately moved for summary judgment, arguing they were entitled to recreational use immunity under N.D.C.C. ch. 53-08, because the premises were used for recreational purposes and Jacqueline Schmidt was not charged to enter the premises.
[¶6] The district court granted summary judgment, concluding Gateway Community Fellowship and North Bismarck Associates II were entitled to recreational use immunity, because Jacqueline Schmidt entered the land for the recreational purpose of enjoying the exhibition with her son and she was not charged to enter the premises. The court also decided the statutory provisions for recreational use immunity were not unconstitutional as applied to the Schmidts' action.
[¶7] Summary judgment is a procedural device for promptly resolving a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that reasonably can be drawn from undisputed facts, or if the only issues to be resolved are questions of law. Kappenman v. Klipfel, 2009 ND 89, ¶ 7, 765 N.W.2d 716; Leet v. City of Minot, 2006 ND 191, ¶ 12, 721 N.W.2d 398. Whether the district court properly granted summary judgment is a question of law that we review de novo on the record. Kappenman, at ¶ 7; Leet, at ¶ 12. Summary judgment is appropriate if the issues in the case are such that the resolution of any factual disputes will not alter the result. Leet, at ¶ 12. A party moving for summary judgment must establish there are no genuine issues of material fact and the case is appropriate for judgment as a matter of law. Kappenman, at ¶ 7. In determining whether summary judgment is appropriate, we view the evidence in the light most favorable to the party opposing the motion, giving that party the benefit of all favorable inferences which reasonably can be drawn from the record. Kappenman, at ¶ 7; Leet, at ¶ 12. However, if the movant meets its initial burden of showing the absence of a genuine issue of material fact, the opposing party may not rest on mere allegations or denials in the pleadings, but must present competent admissible evidence by affidavit or other comparable means to show the existence of a genuine issue of material fact. Kappenman, at ¶ 7. The interpretation and application of a statute is a question of law, which is fully reviewable on appeal. Leet, at ¶ 12.
[¶8] Under North Dakota law for premises liability, general negligence principles govern a landowner's duty of care to persons who are not trespassers on the premises. See O'Leary v. Coenen, 251 N.W.2d 746, 748-52 (N.D. 1977) (abandoning common law categories of licensee and invitee for premises liability and retaining standard that owner owes no duty to trespasser except to refrain from harming trespasser in willful and wanton manner). Thus, a landowner or occupier of premises generally owes a duty to lawful entrants to exercise reasonable care to maintain the property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to another, the seriousness of injury, and the burden of avoiding the risk. Id. at 751. See generally 1 Norman J. Landau and Edward C. Martin Premises Liability Law and Practice § 1.06[a] (perm ed., rev. vol. 2009).
[¶9] Under that formulation, an owner or possessor of commercial property owes a duty to lawful entrants to exercise reasonable care to maintain the property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to another, the seriousness of injury, and the burden of avoiding the risk. See Groleau v. Bjornson Oil Co., 2004 ND 55, ¶ 16, 676 N.W.2d 763; Green v. Mid Dakota Clinic, 2004 ND 12, ¶ 8, 673 N.W.2d 257. See generally 1 Premises Liability Law and Practice, at § 4.01[a] (explaining owner or possessor of commercial property must warn entrants of all known dangers, must inspect premises to discover hidden dangers, and must provide proper warning of known dangers); 62 Am. Jur. 2d Premises Liability, §§ 435, 439 (2005) (discussing commercial property owner's duty to customers and potential customers in shopping centers and malls). Similarly, a church or religious institution generally owes the same duty of care to lawful entrants on its premises. See 1 Premises Liability Law and Practice, at § 4.03; 62 Am. Jur. 2d Premises Liability, at §§ 456-57.
[¶10] In 1965, the Legislature enacted recreational use immunity statutes to encourage landowners to open their land for recreational purposes by giving them immunity from suit under certain circumstances. 1965 N.D. Sess. Laws ch. 337 (codified at N.D.C.C. ch. 53-08); Hearing on S.B. 312 Before Senate Agricultural Comm., 39th N.D. Legis. Sess. (Feb 4, 1965); Kappenman, 2009 ND 89, ¶ 22, 765 N.W.2d 716; Leet, 2006 ND 191, ¶ 14, 721 N.W.2d 398; Olson v. Bismarck Parks and Recreation Dist., 2002 ND 61, ¶ 6, 642 N.W.2d 864. See generally 1 Premises Law and Practice, at § 5.01; 62 Am. Jur. 2d, Premises Liability, at §§ 125 et seq.
[¶11] Under N.D.C.C. § 53-08-02, "an owner of land owes no duty of care 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." Section 53-08-03, N.D.C.C., also provides:
Subject to the provisions of section 53-08-05, an owner of land who either directly or indirectly invites or permits without charge any person to use such property for recreational purposes does not thereby:
1. Extend any assurance that the premises are safe for any purpose;
2. Confer upon such persons the legal status of an invitee or licensee to whom a duty of care is owed; or
3. Assume responsibility for or incur liability for any injury to person or property caused by an act or omission of such persons.
At the time of the 2002 automotive show and skateboarding exhibition, N.D.C.C. § 53-08-05, provided there was no recreational use immunity for "[w]illful and malicious failure to guard or warn against a dangerous condition, use, structure, or activity,"or for "[i]njury suffered in any case where the owner of land charges the person or persons who enter or go on the land other than the amount, if any, paid to the owner of the ...