Groleau v. Bjornson Oil Co.
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| 20030171 |
Betty Groleau, Plaintiff and Appellant
v.
Bjornson Oil Company,
Inc., a North Dakota
corporation, and Amoco
Oil Company, a Maryland
corporation, Defendants and Appellees
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| Appeal from: |
District Court,
Northeast Judicial District,
Pembina County
Judge M. Richard Geiger |
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Nature of Action: |
Personal Injury
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| Counsel: |
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| Term: |
11/2003 Argument: 11/06/2003 01:30pm
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| ND cite: |
2004 ND 55
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| NW cite: |
676 N.W.2d 763
Listen to recording of oral argument
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| Issues: |
Appellant's Statement of the Issues:
I. The "open and obvious danger" doctrine is not a defense in a negligence action in North Dakota.
II. The trial court erred in finding that an "open and obvious" condition existed as a matter of law.
III. The trial court erred in finding that Amoco exercised no control over the color of the gas pump islands and owed no duty to Groleau.
Appellee's Statement of the Issues:
A. The District Court correctly ruled that Amoco did not exercise control over the premises and, therefore, had no duty to warn Groleau of alleged dangers existing on the premises.
B. The District Court correctly held that there is no duty to warn of a condition that is open and obvious on the premises.
1. The "open and obvious" doctrine was not abolished by the Legislature's adoption of comparative fault.
2. As a matter of law, the raised concrete gas pump islands constituted an open and obvious condition on the premises for which there was no duty to warn.
Appellee's Statement of the Issues:
I. Appellant's new argument that the open and obvious doctrine is not a defense in a negligence action in North Dakota was not presented to the Trial Court, and therefore cannot be raised for the first time on appeal.
II. The "open and obvious doctrine" is a viable and accepted legal principle under North Dakota law, and was not abolished by the North Dakota Legislature's adoption of the comparative fault statute.
III. As a matter of law, the elevated gas pump island was an open and obvious condition.
IV. The expert testimony of Lanny Berke would not assist the trier of fact, and can not be relied upon to defeat a motion for summary judgment.
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| 1 | | 06/12/2003 | |
NOTICE OF APPEAL: 06/09/2003 |
| 2 | | 06/12/2003 | |
ORDER FOR TRANSCRIPT (Margaret Campbell): 06/09/2003 |
| 3 | | 06/18/2003 | |
RETENTION OF RECORD ON APPEAL (Margaret Campbell): 07/29/2003 |
| 4 | | 06/30/2003 | |
TRANSCRIPT DATED March 7, 2003 |
| 5 | | 07/02/2003 | |
DISK - TRA (3-7-03) |
| 6 | | 07/10/2003 | |
RECORD ON APPEAL |
| 7 | | 08/08/2003 | |
MOT. EXT/TIME APPELLANT BRIEF (faxed) |
| 8 | | 08/08/2003 | |
Faxed letter dated 8-08-03 from Steven A. Storslee -- no objection to AT's Motion for ext. of time |
| 9 | | 08/08/2003 | |
ACTION BY CLERK (MAT). Granted: 08/13/2003 |
| 10 | | 08/08/2003 | |
E-FILED MOTION (MAT) |
| 11 | | 08/11/2003 | |
Original Request for Ext/Time/ATB (same as faxed copy filed 8-8-03) |
| 12 | | 08/13/2003 | |
APPELLANT BRIEF |
| 13 | | 08/13/2003 | |
E-FILED BRIEF (ATB) |
| 14 | | 08/13/2003 | |
APPELLANT APPENDIX |
| 15 | | 08/15/2003 | |
Received $25 surcharge payment for efiled ATB - receipt 15186 |
| 16 | | 09/12/2003 | |
APPELLEE BRIEF (Amoco Oil Co.) |
| 17 | | 09/12/2003 | |
E-FILED BRIEF (AEB - Amoco Oil Co.) |
| 18 | | 09/15/2003 | |
Received $25 surcharge pymt for e-filed AEB of Amoco Oil Co. Receipt #15211 |
| 19 | | 09/16/2003 | |
APPELLEE BRIEF (Bjornson Oil Co.) |
| 20 | | 09/16/2003 | |
APPELLEE APPENDIX (Bjornson Oil Co.) |
| 21 | | 09/17/2003 | |
DISK - AEB (Bjornson Oil Co.) |
| 22 | | 09/17/2003 | |
Supplemental Clerk's Certificate dated 9-16-03 (Entry Nos. 74-81) |
| 23 | | 11/06/2003 | |
APPEARANCES: Steven L. Latham; Joel A. Flom; Steven A. Storslee |
| 24 | | 11/06/2003 | |
ARGUED: Latham; Flom; Storslee (Vol. Y; Page 164) |
| 25 | | 11/06/2003 | |
ORAL ARGUMENT WEBCAST |
| 26 | | 03/23/2004 | |
DISPOSITION: AFFIRMED/PT, REVERSED/PT |
| 27 | | 03/23/2004 | |
SPLIT OPINION: Kapsner, Carol Ronning |
| 28 | | 03/23/2004 | |
(CONCUR and DISSENT): Maring, Mary Muehlen: CON/DIS |
| 29 | | 03/23/2004 | |
At the direction of the Court, Appellant will Recover costs and disbursements from |
| 30 | | 03/23/2004 | |
Appellee Bjornson Oil Co. and Appellee Amoco Oil Co. will have and recover costs against AT. |
| 31 | | 03/24/2004 | |
Judgment Mailed to Parties |
| 32 | | 04/20/2004 | |
MANDATE |
| 33 | | 04/23/2004 | |
RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE |
| 34 | | 10/22/2010 | |
EXPUNGED - Nonpermanent record items destroyed |