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Gessner v. City of Minot8/18/1998
r other water control device or flood control project constructed by or with the assistance of any federal agency but which is not maintained or operated by any federal agency shall become the responsibility of the district where it is located. The district may take any action concerning this dam, dike, or other water control device it deems feasible or necessary.
N.D.C.C. ยง 61-16.1-40.
[ ] From admissions in the District's brief, one could infer the District, prior to accepting operation and maintenance responsibilities in 1981, had knowledge of facts the structure constituted an unreasonably dangerous hazard for children:
On June 22, 1977, DeeAnn Berry fell from the flood control structure . . . . This drowning was fully investigated by the Minot Police Department . . . .
In addition to being aware of the 1977 drowning, Minot was generally aware of the dangers the flood control structures presented. Minot was aware particularly that children would sometimes play near the structures, and had explored the possibilities of precautions, such as a fence around the structure. . . . Minot further issued repeated warnings about the dangers that the flood control works presented.
he alleged safety defects at the site from which Cory fell were "open and obvious," at least insofar as Minot was concerned. . . . This was known as early as 1977 when a drowning occurred at the same site.
If in 1977 Minot knew or should have known the obvious and unreasonable risk of danger this structure presented to children, there is at least an inference the District, who, in 1981, assumed total responsibility for maintenance and operation, should also have known of the obvious risk and danger. The District asserts, however, it had no control of the structure or responsibility for the public safety after the city assumed operation and maintenance of the structure in February 1982.
[ ] There has been no development of facts on this record as to who has legal title to this flood control structure or who has such control or authority to be considered a possessor of the structure and adjacent land. The facts might show Minot was acting as an agent of the District in operating and maintaining the flood control structure, and the District, as Minot's principal, is vicariously liable for any negligence by Minot in performing that undertaking. The District receives periodic reports of the city's operation and maintenance activities, from which a factfinder could also infer the District retained control and responsibility for the structure. Once developed, the facts might also show the flood structure was negligently designed, causing an unreasonable risk of harm to children, and the District negligently breached its duty as sponsor of the project by failing to eliminate the risk.
[ ] Although the question of whether a defendant owes a duty is generally a preliminary question of law for the court, when the existence of a duty depends upon the resolution of factual issues, those facts must be resolved by the trier of fact. Pechtl v. Conoco, Inc., 1997 ND 161, 7, 567 N.W.2d 813. We conclude there are genuine issues of material fact regarding the District's authority to control the flood structure at the time of the victim's death and regarding its duty, or lack thereof, to provide a structure free from unreasonable risk of harm to children in accordance with the Restatement Section 339. There are numerous factual questions which could potentially result in either direct or vicarious liability by the District on Gessner's claims. These unresolved factual issues preclude a determination, as a matter of law, that the District has no liability in this
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