Groleau v. Bjornson Oil Co.

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

Appeal from: District Court, Northeast Judicial District, Pembina County
Judge M. Richard Geiger
Nature of Action: Personal Injury
Counsel:
Appellant: Wheeler Wolf
Appellee: Jeffries, Olson & Flom, PA
Appellee: Storslee Law Firm, P.C.
Term: 11/2003   Argument: 11/06/2003  1:30pm
ND cite: 2004 ND 55
NW cite: 676 N.W.2d 763

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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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Docket entries:
106/12/2003 NOTICE OF APPEAL: 06/09/2003
206/12/2003 ORDER FOR TRANSCRIPT (Margaret Campbell): 06/09/2003
306/18/2003 RETENTION OF RECORD ON APPEAL (Margaret Campbell): 07/29/2003
406/30/2003 TRANSCRIPT DATED March 7, 2003
507/02/2003 DISK - TRA (3-7-03)
607/10/2003 RECORD ON APPEAL
708/08/2003 MOT. EXT/TIME APPELLANT BRIEF (faxed)
808/08/2003 Faxed letter dated 8-08-03 from Steven A. Storslee -- no objection to AT's Motion for ext. of time
908/08/2003 ACTION BY CLERK (MAT). Granted: 08/13/2003
1008/08/2003 E-FILED MOTION (MAT)
1108/11/2003 Original Request for Ext/Time/ATB (same as faxed copy filed 8-8-03)
1208/13/2003 APPELLANT BRIEF
1308/13/2003 E-FILED BRIEF (ATB)
1408/13/2003 APPELLANT APPENDIX
1508/15/2003 Received $25 surcharge payment for efiled ATB - receipt 15186
1609/12/2003 APPELLEE BRIEF (Amoco Oil Co.)
1709/12/2003 E-FILED BRIEF (AEB - Amoco Oil Co.)
1809/15/2003 Received $25 surcharge pymt for e-filed AEB of Amoco Oil Co. Receipt #15211
1909/16/2003 APPELLEE BRIEF (Bjornson Oil Co.)
2009/16/2003 APPELLEE APPENDIX (Bjornson Oil Co.)
2109/17/2003 DISK - AEB (Bjornson Oil Co.)
2209/17/2003 Supplemental Clerk's Certificate dated 9-16-03 (Entry Nos. 74-81)
2311/06/2003 APPEARANCES: Steven L. Latham; Joel A. Flom; Steven A. Storslee
2411/06/2003 ARGUED: Latham; Flom; Storslee (Vol. Y; Page 164)
2511/06/2003 ORAL ARGUMENT WEBCAST
2603/23/2004 DISPOSITION: AFFIRMED/PT, REVERSED/PT
2703/23/2004 SPLIT OPINION: Kapsner, Carol Ronning
2803/23/2004 (CONCUR and DISSENT): Maring, Mary Muehlen: CON/DIS
2903/23/2004 At the direction of the Court, Appellant will Recover costs and disbursements from
3003/23/2004 Appellee Bjornson Oil Co. and Appellee Amoco Oil Co. will have and recover costs against AT.
3103/24/2004 Judgment Mailed to Parties
3204/20/2004 MANDATE
3304/23/2004 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
3410/22/2010 EXPUNGED - Nonpermanent record items destroyed

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