Schmidt v. Gateway Community Fellowship

20090047 Jacqueline K. Schmidt and
Randall R. Schmidt, Plaintiffs and Appellants
v.
Gateway Community Fellowship,
a North Dakota corporation, and
North Bismarck Associates II, a
North Dakota general partnership, Defendants and Appellees

Appeal from: District Court, South Central Judicial District, Burleigh County
Judge David E. Reich
Nature of Action: Personal Injury
Counsel:
Appellant: Ariston Edward Johnson
Appellee: Chris A. Edison
Appellee: Stephen W. Plambeck
Appellant: David Del Schweigert
Term: 09/2009   Argument: 09/09/2009  2:45pm
ND cite: 2010 ND 69
NW cite: 781 N.W.2d 200

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
1. Whether the District Court erred in viewing the evidence in a light less favorable to the Appellants than required by law;
2. Whether the District Court erred in failing to consider the evidence that the Defendants willfully and maliciously failed to guard or warn against a dangerous condition, use, structure, or activity;
3. Whether the District Court erred in its interpretation of Chapter 53-08, N.D.C.C.;
4. Whether the District Court erred in finding, as a matter of law, that Jacqueline K. Schmidt's use of the subject land was recreational in character;
5. Whether the District Court erred in finding, as a matter of law, that there was no charge for Jacqueline K. Schmidt's use of the subject land; and
6. Whether the District Court erred in holding that Chapter 53-08, N.D.C.C., is not unconstitutional as applied to the facts of this case.

Appellee's Statement of the Issues:
A. Whether the district court correctly determined Jacqueline Schmidt entered the premises for a "recreational purpose" as defined by N.D.C.C.  53-08-01.
B. Whether the district court correctly determined the Jacqueline Schmidt was not charged a fee for entry onto the land for purposes of N.D.C.C.  53-08-05.
C. Whether the Schmidts submitted competent, admissible evidence raising an inference of "willful" and "malicious" conduct on the part of Gateway Community Fellowship under N.D.C.C.  53-08-05(1).
D. Whether the district court correctly determined the recreational use immunity statutes are constitutional as applied in this case.

Appellee's Statement of the Issues:
1. Whether Plaintiffs' response to Defendants' summary judgment motions, by affidavits or otherwise, set forth specific facts showing there was a genuine issue for trial on any of the claims alleged in the complaint?
2. Whether Chapter 53-08, N.D.C.C., as applied to the facts of this case, is unconstitutional?
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Docket entries:
102/03/2009 NOTICE OF APPEAL: 01/30/2009
202/03/2009 ANNOUNCED DISQUALIFICATION: Crothers, Daniel John
302/03/2009 ORDER FOR TRANSCRIPT: 01/30/2009
402/05/2009 RETENTION OF RECORD ON APPEAL: 03/21/2009
503/17/2009 TRANSCRIPT DATED October 2, 2008
603/17/2009 DISK - tra (10/2/09) (e-mailed)
703/17/2009 RECORD ON APPEAL (Not rec'd: #38--E-mail to Daivd Schweigert from S.C.)
804/23/2009 APPELLANT BRIEF
904/23/2009 Addendum to ATB (Attached to Brief)
1004/23/2009 APPELLANT APPENDIX
1104/23/2009 DISK - ATB (e-mailed)
1205/12/2009 Statement of Douglas Bahr, Solicitor General
1305/21/2009 APPELLEE BRIEF of Gateway Community Fellowship (e-filed)
1405/21/2009 E-FILED BRIEF (AEB - Gateway Community Fellowship)
1505/22/2009 Received $25.00 surcharge for AEB of Gateway Community Fellowship (Receipt No. 18860)
1605/22/2009 APPELLEE BRIEF of North Bismarck Associates II (e-filed)
1705/22/2009 E-FILED BRIEF (AEB - North Bismarck Associates II)
1805/26/2009 Received $25.00 surcharge for AEB of North Bismarck Associates II (Receipt No. 18863)
1905/28/2009 Received copies of AEB North Bis Assoc from CSD
2005/28/2009 Received copies of AEB Gateway Comm from CSD
2106/04/2009 REPLY BRIEF of Appellant
2206/04/2009 DISK - RYB (e-mailed)
2307/24/2009 NOTICE OF ORAL ARGUMENT MAILED
2407/31/2009 SITTING WITH THE COURT: Foughty, Donovan John
2509/09/2009 APPEARANCES: Ariston E. Johnson/Chris A. Edison/Stephen W. Plambeck
2609/09/2009 ARGUED: Johnson/Edison/Plambeck
2709/09/2009 ORAL ARGUMENT WEBCAST
2804/08/2010 DISPOSITION: REVERSED AND REMANDED
2904/08/2010 SPLIT OPINION: Kapsner, Carol Ronning
3004/08/2010 (CONCUR IN THE RESULT): VandeWalle, Gerald W.: CON/RES
3104/08/2010 (DISSENTING IN PART): Sandstrom, Dale V.: DISSENT
3204/08/2010 Judgment Sent to Parties
3305/13/2010 MANDATE
3405/17/2010 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
3506/15/2010 Corrected Opinion Page (Page 5, Paragraph 11 - punctuation only)

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