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Gessner v. City of Minot8/18/1998
se supervise the City of Minot's actions.
It appears that the supervision of the Corps of Engineers is limited to maintenance and upkeep. No evidence has been presented hat the Ward County Water Management District has such authority.
[ ] We review the court's dismissal of Gessner's claim against the District under the summary judgment standards of N.D.R.Civ.P. 56. Summary judgment is a procedure for deciding an action without a trial when there are no genuine disputes as to either the material facts or the inferences to be drawn from the undisputed facts, or if resolving the disputed facts would not change the result. Pechtl v. Conoco, Inc., 1997 ND 161, 6, 567 N.W.2d 813. When considering a motion for summary judgment, the evidence must be viewed in the light most favorable to the party opposing the motion, who must be given the benefit of all favorable inferences which can be reasonably drawn from the evidence. Stanley v. Turtle Mountain Gas & Oil, 1997 ND 169, 6, 567 N.W.2d 345.
[ ] The complaint alleges the District knew children were regularly attracted to the flood control structure located adjacent to a city park, and the District knew or should have known the structure "created an unreasonable risk of serious harm to members of the public, especially children, and knew or should have known that children, because of their age, would not realize the seriousness of the risk." The complaint further alleges the District negligently failed to warn the public of the existence of the dangerous condition of the structure, failed to construct a barrier to prevent children from entering the structure, and failed to warn of the dangerous condition or to eliminate the danger by installing guardrails or other protection.
[ ] In Mikkelson v. Risovi, 141 N.W.2d 150, 154 (N.D. 1966), the court applied the principles set forth in Reinstatement, Second, Torts § 339: § 339. Artificial Conditions Highly Dangerous to Trespassing Children
A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if
(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.
In 1971, the District agreed to sponsor the construction of the flood control structure by the Corps of Engineers. In undertaking that responsibility the District agreed to hold and save harmless the United States from any damages due to construction of the project and to maintain and operate the improvement after its completion. When the structure was completed in 1981, the District accepted responsibility for operation and maintenance of the structure.
[ ] The District also has a statutory responsibility for the structure and authority to take whatever action it deems necessary in that regard:
When dams constructed by federal agency under control of district. Any dam, dike, o
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