Kappenman v. Klipfel

20080184 Alfred Kappenman and Julie Ness,
aka Julie Kappenman, on behalf of
their minor son, Brason Kappenman,
deceased, and Alfred Kappenman and
Julie Kappenman on behalf of the
heirs and next-of-kin of Brason
Kappenman, deceased, Plaintiffs and Appellants
v.
Brent Klipfel, and Albion Township,
a political subdivision of the
State of North Dakota, Defendants and Appellees

Appeal from: District Court, Southeast Judicial District, Dickey County
Judge John T. Paulson
Nature of Action: Personal Injury
Counsel:
Appellee: Vogel Law Firm
Appellee: Smith Bakke Porsborg Schweigert & Armstrong
Appellant:
Term: 12/2008   Argument: 12/01/2008  10:45am
ND cite: 2009 ND 89
NW cite: 765 N.W.2d 716

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
I. The trial court erred when it ruled that North Dakota's recreational use immunity statute bars the Kappenmans' claims against the township for Brason's death.
A. At issue is whether Albion Township had a duty to warn of a known hazardous condition, not whether the Township had a duty to repair the section line.
B. The intent of North Dakota's recreational use statute was to protect private landowners and not political entities.
C. The trial court improperly applied the Leet test when it granted Albion Township and Klipfel immunity from suit by the Kappenmans.
II. The trial court erred when it ruled that Albion township is protected from suit by discretionary immunity.
A. Albion Township's failure to warn travelers of a known hazard was a ministerial act not covered by discretionary immunity.
B. A township's budget constraints alone do not control whether Albion Township breached its duty to warn travelers of a dangerous section line hazard.
III. The trial court erred when it ruled that North Dakota's recreational use immunity statute bars the Kappenmans' claims against Klipfel for Brason's death.
A. Landowner Klipfel had a duty to warn travelers of known hazards which exist on an open and publically-traveled section line road.
B. Brason did not "enter" Klipfel's land such that Klipfel can avail himself of North Dakota's recreational use immunity statute.
C. Brason's purpose of travel is a jury questions and inappropriate for summary judgment.
D. Whether Klipfel acted willfully and maliciously is a jury question and inappropriate for summary judgment.
IV. The trial court erred when it ruled that neither Albion township nor Klipfel had a duty to abate a public nuisance on a section line road. A. Neither Albion Township nor Klipfel can impede the public's right to travel on a section line road, and each has a duty to warn travelers of a known hazard. B. The public's right to travel a section line road is not thwarted by the recreational use immunity exception to liability. V. The trial court erred when it denied the Kappenmans' motion to amend their complaint.

Reply Brief Issues
I. Recreational use immunity does not bar the Kappenmans' claims against the township.
A. Whether Brason was coming home is a material fact which precludes summary judgment.
B. The Township's N.D.C.C. 24-06-31 obligation precludes its use of recreational use immunity.
C. Neither Olson nor the 1995 amendments to N.D.C.C. 53-08 absolves the Township from liability.
II. Discretionary immunity does not protect the township.
A. The Township's failure to warn travelers of a known hazard was ministerial, not discretionary.
B. Public policy dictates that the Township cannot be shielded from responsibility for Brason's death.
III. Recreational use immunity statute does not bar the Kappenmans' claims against Klipfel.
A. Whether Klipfel negligently dug or maintained the section line trench is a material fact for the jury.
B. Whether Klipfel opened his property to Brason is a material fact for the jury.


Appellee's Statement of the Issues:
Appellee Brent Klipfel - Whether the district court properly ruled that Brent Klipfel did not have a duty to keep an unimproved section line trial safe or to warn section line travelers of a known hazard.

Appellee's Statement of the Issues:
Appellee Albion Township - I. Whether the trial court's ruling Kappenmans' claims against Albion Township are barred by North Dakota's recreational use immunity was in error
II. Whether the trial court's ruling Albion Township is protected from suit by discretionary immunity was in error III. Whether the trial court's ruling the washout in the section line road did not constitute a public nuisance was in error
IV. Whether the trial court abused its discretion in denying the Kappenmans' motion to amend their complaint
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Docket entries:
107/25/2008 NOTICE OF APPEAL: 07/24/2008
207/25/2008 ORDER FOR TRANSCRIPT: 07/24/2008
307/25/2008 ANNOUNCED DISQUALIFICATION: Kapsner, Carol Ronning
408/04/2008 TRANSCRIPT DATED April 14, 2008 (E-mail)
508/04/2008 DISK - tra (4-14-08) (e-mailed)
608/25/2008 RECORD ON APPEAL (3 volumes).
708/27/2008 MOT. EXT/TIME APPELLANT BRIEF & Affidavit of David R. Bliss w/Affidavit of Service
808/27/2008 ACTION BY CLERK (MAT). Granted: 10/01/2008
910/01/2008 APPELLANT BRIEF (e-filed)
1010/01/2008 E-FILED BRIEF (ATB)
1110/01/2008 APPELLANT APPENDIX (e-filed)
1210/01/2008 E-FILED APPENDIX (ATA)
1310/03/2008 Received $25 surcharge for ATB (Receipt #18265)
1410/07/2008 Received $47 surcharge for ATA (receipt #18271)
1510/07/2008 Received copies of Appellant's Brief from Central Duplicating Services
1610/07/2008 Received copies of Appellant's Appendix from Central Duplicating Services
1710/31/2008 APPELLEE BRIEF - Klipfel (PDF)
1810/31/2008 E-FILED BRIEF - AEB - Klipfel (PDF)
1910/31/2008 APPELLEE APPENDIX - Klipfel
2011/04/2008 APPELLEE BRIEF - Albion Township
2110/31/2008 E-FILED BRIEF - AEB - Albion Township
2210/31/2008 APPELLEE APPENDIX - Albion Township
2311/03/2008 Received $25 Surcharge for AEB - Klipfel (Receipt 18602)
2411/03/2008 Received $89 Surcharge for AEB & AEA - Albion Township (Receipt #18603)
2511/04/2008 Received copies of AEB - Klipfel from Central Duplicating
2611/04/2008 Received copies of AEA - Klipfel from Central Duplicating
2711/05/2008 Received copies of AEB - Albion Township - from Central Duplicating Services
2811/05/2008 Received copies of AEA - Albion Township - from Central Duplicating Services
2911/14/2008 REPLY BRIEF of Appellants (E-filed)
3011/14/2008 E-FILED BRIEF (RYB)
3111/18/2008 Received 7 copies of RYB from Central Duplicating.
3211/19/2008 SITTING WITH THE COURT: Bekken, James M.
3312/01/2008 APPEARANCES: David R. Bliss, Al Kappenman, Julie Tharan; Carlton J. Hunke; Randall J. Bakke
3412/01/2008 ARGUED: Bliss; Hunke; Bakke
3512/01/2008 ORAL ARGUMENT WEBCAST
3605/26/2009 DISPOSITION (AND REMANDED): AFFIRMED/PT, REVERSED/PT
3705/26/2009 SPLIT OPINION: Maring, Mary Muehlen
3805/26/2009 (CONCUR IN THE RESULT): Crothers, Daniel John: CON/RES
3905/26/2009 (CONCURRING): VandeWalle, Gerald W.: CONCUR
4005/26/2009 (JOIN IN CONCURRENCE): Bekken, James M.: JN/CON
4105/26/2009 Costs on appeal taxed in favor of Appellants
4205/29/2009 Judgment e-mailed to Parties
4306/17/2009 MANDATE
4406/23/2009 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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