Smith v. Kulig

20040237 Kelly Smith, by and through
the Special Administrator
Rhonda Smith, Plaintiff and Appellant
v.
Tony Kulig, Defendant and Appellee

Appeal from: District Court, Northwest Judicial District, Ward County
Judge Gary A. Holum
Nature of Action: Personal Injury
Counsel:
Appellant: Eaton, Ward & Associates
Appellee: Pringle & Herigstad, P.C.
Term: 03/2005   Argument: 03/28/2005  9:30am
ND cite: 2005 ND 93
NW cite: 696 N.W.2d 521


Issues: Appellant's Statement of the Issues:
Issue. I. Whether the District Court erred in holding that having been invited into the building Kelly Smith was a trespasser? Accordingly, was the District Court applying the wrong standard to the case by determining that he was a trespasser.
Issue. II. Whether if the District Court was correct in holding that the owner of the building has only a duty to avoid Willful and Wanton conduct that the facts in this case show Willful and Wanton behavior as to Kelly Smith by the owner's failure to inspect the fire escape at 119 South Main Street, Minot, ND, or keeping it in reasonably good shape for the ten (10) years he owned it such behavior that it is as a matter of law he did engage in Willful and Wanton behavior?
Issue. III. Is failing to inspect or care for a fire escape so that it falls from the wall such negligence acting in such a grossly negligent manner as to constitute willfulness or wantonness? It is contended that the facts are such in this case that it is unreasonable for the Court on the facts existing to support a verdict that there was not a decree of negligence to support the defendant even if the standard was willfulness or wantonness and certainly if he was an invitee so that there should be liability

Appellee's Statement of the Issues:
I. Smith was a trespasser.
II. Kulig violated no duty to Smith.
III. Previous trespasses by others did not increase Kulig's duty to Smith.
IV. The trespasser distinction should remain law - landowners are not insurers.

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Docket entries:
108/23/2004 NOTICE OF APPEAL: 08/19/2004
208/23/2004 ORDER FOR TRANSCRIPT: 08/19/2004
308/23/2004 RETENTION OF RECORD ON APPEAL: 10/08/2004
410/07/2004 TRANSCRIPT DATED May 4-5, 2004
510/08/2004 RECORD ON APPEAL including separate exhibits and deposition (1)
610/11/2004 DISK - TRA of May 4-5, 2004
711/12/2004 MOT. EXT/TIME APPELLANT BRIEF (faxed)
811/12/2004 ACTION BY CHIEF DEPUTY CLERK. Granted: 12/07/2004
911/12/2004 E-FILED MOTION (faxed)
1011/15/2004 Mot/Ext/ATB & Aff/Support (Same as faxed copy)
1112/07/2004 APPELLANT BRIEF
1212/07/2004 APPELLANT APPENDIX
1312/08/2004 DISK - atb
1412/16/2004 MOT. EXT/TIME APPELLEE BRIEF (letter dated 12-15-04 from Jim Nostdahl)
1512/16/2004 ACTION BY CLERK (MAE). Granted: 02/07/2005
1602/01/2005 APPELLEE BRIEF
1702/02/2005 DISK - AEB
1803/28/2005 APPEARANCES: Michael Ward; James E. Nostdahl
1903/28/2005 ARGUED: Ward; Nostdahl (Vol. Z, Pg.96)
2003/28/2005 ORAL ARGUMENT WEBCAST
2105/17/2005 DISPOSITION: AFFIRMED
2205/17/2005 UNANIMOUS OPINION: Maring, Mary Muehlen
2305/17/2005 Costs on appeal taxed in favor of Appellee
2405/19/2005 Judgment Mailed to Parties
2506/10/2005 MANDATE
2606/14/2005 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
2710/28/2011 EXPUNGED - Nonpermanent record items destroyed

Generated from Supreme Court Docket on 10/01/2014