author: SANDSTROM, Justice.

text:
    2004 ND 52
    In the Interest of K.P. William Pryatel, M.D., Petitioner and Appellee v. K.P., Respondent and Appellant.
    No. 20040049.
    Supreme Court of North Dakota.
    March 10, 2004.

      Kenneth L. Dalsted, Special Assistant Attorney General, Jamestown, for petitioner and appellee.
    Thomas E. Merrick, Jamestown, for respondent and appellant.
   SANDSTROM, Justice.

[¶ 1] K.P. is appealing from a Southeast Judicial District Court order denying change of venue and from an order terminating alternative treatment and ordering K.P. to be hospitalized in the North Dakota State Hospital at Jamestown, North Dakota, until March 20, 2004, or until further court order. K.P. argues the district court abused its discretion in denying her motion for a change of venue. K.P. also argues the district court erred in determining she was not complying with a court order for less restrictive treatment and in determining this alternative treatment was insufficient to prevent harm or injury to herself or others.

I

[¶ 2] K.P. has schizoaffective disorder, which involves a cycling mood condition. She has been in and out of the North Dakota State Hospital in Jamestown since January 13, 2003. KJP.’s hospitalization history prior to this appeal is discussed in Interest of K.P., 2003 ND 114, ¶¶ 2-8, 665 N.W.2d 65. The facts relevant to this appeal are as follows.

[¶ 3] On May 16, 2003, K.P. was ordered hospitalized until March 20, 2004. On November 5, 2003, the district court ordered less restrictive treatment and required K.P. to undergo treatment through the Southeast Human Service Center (“SEHSC”) until March 20, 2004. The outpatient treatment required medication monitoring and compliance at the SEHSC through Dr. Elizabeth Faust, KP.’s psychiatrist, and Amy Axtmann, K.P.’s SEHSC case manager.

[¶ 4] On November 5, 2003, K.P. was released from the State Hospital. On January 9, 2004, because of reported behavior and an incident involving a scalpel, K.P. was taken into custody and detained at MeritCare Hospital in Fargo, North Dakota. An application for emergency admission was filed. On January 12, 2004, she was transported to the State Hospital, where her detention continued. Notice of her detention was filed, and a hearing to modify her alternative treatment order was scheduled to take place by interactive television (“ITV”). K.P. objected to the modification hearing’s being held by ITV. On January 13, 2004, K.P. moved for a change of venue. On January 13, 2004, following a telephonic hearing, the motion was denied. On January 14, 2004, a hearing was held regarding the modification of KP.’s alternative treatment plan.

[¶ 5] At the hearing, Amy Axtmann, K.P.’s primary case manager, testified that upon initial release from the State Hospital, K.P. was in compliance with the court order and was doing well. She testified that on November 21, 2003, she received a call from staff at the transitional living facility where K.P. was residing, reporting that K.P. was rude, more irritable, and more caustic toward staff and was not “redirectable.” Axtmann testified she spoke with Dr. Faust and a decision was made to increase K.P.’s medication. She testified that K.P. was willing to increase her medication and that she noticed a decrease in symptoms.

[¶ 6] Axtmann also testified that on December 18, 2003, she received another phone call from the staff at the transitional living facility. She testified that the staff reported K.P. was exhibiting bizarre behaviors. She testified she met with K.P. and saw that K.P. was using her oven for heat. She testified that K.P. agreed to be more cooperative and to allow staff to enter her apartment to monitor her.

[¶ 7] Axtmann also testified that on December 24 and 25, 2003, K.P. was authorized to go on a 24-hour pass. She testified K.P. agreed to take her medication prior to leaving the transitional living facility and to take her medication during the time she would be gone. Ax-tmann testified that when she went to see K.P. on December 29, 2003, K.P. told her she had taken a “med holiday” because she felt she was overmedicated and did not want the medications. Axtmann testified they discussed the fact that 100 percent medication compliance was a condition of KP.’s being in the community and K.P. agreed to comply. Axtmann testified K.P. admitted she did not take her medication and had missed a total of three doses.

[¶ 8] Axtmann also testified that on January 2, 2004, she met with K.P. She testified that K.P. was belligerent, unredi-rectable, and argumentative with her and with the staff at the transitional living facility. She testified she met with Dr. Faust and a decision was made to again increase KP.’s medication. She testified K.P. refused the increase in medication.

[¶ 9] Axtmann also testified that on January 5, 2004, she was contacted by the staff at the transitional living facility because K.P. was again using her oven for heat, acting belligerently, and showing-signs of increased irritability. She testified that after she twice talked with K.P., K.P. agreed to increase her medication and to allow staff to come into her apartment.

[¶ 10] Also at the hearing, Dr. Elizabeth Faust, KP.’s psychiatrist, testified KP.’s medication was increased in November as a result of an abrupt deterioration in her condition. She testified there was a sudden exacerbation of KP.’s symptoms again in December. She testified that around Christmastime, K.P. was not in compliance with her medication and they had not been able to stabilize her since then. She testified they increased KP.’s medication for a second time on January 2, 2004, hoping to stabilize K.P., but it did not work.

[¶ 11] Also at the hearing, Elizabeth Gravalin, a licensed practical nurse (“LPN”) employed with SEHSC, testified she received a phone call on January 9, 2004, at 11:45 a.m. from Cass County Social Services (“Social Services”) in Fargo. She testified that a person at the Social Services office reported K.P. was in their basement and that in view of KP.’s behavior, a decision was made to assess the situation and consider emergency commitment. She testified she requested Fargo Police Department backup because past experience demonstrated that K.P. becomes belligerent and violent when presenting in this manner.

[¶ 12] Gravalin testified that when she arrived at the Social Services office, K.P. had left and was walking rapidly down the street. Gravalin and the police officer approached K.P. and informed her that a call had been received from Social Services and that because of her reported behavior and her actions at that time, they were looking at readmitting her to the hospital. She testified K.P. was belligerent and irate. She also testified that K.P. yelled at the police officer and at her. She testified that while the officer was trying to coax K.P. into his vehicle, she struggled away and ran up the hood of the police car. She testified that the police officer grabbed K.P. by the back of her coat and that K.P. yelled, screamed, and fought. She testified K.P. then pulled a medical scalpel out of her pocket. K.P. was taken to the MeritCare Hospital emergency room.

[¶ 13] The district court found K.P. had not complied with the terms of the alternative treatment order and the alternative treatment order had not been sufficient to prevent K.P. from inflicting harm or injury upon herself or others. The district court terminated the order for alternative treatment and ordered K.P. hospitalized at the State Hospital until March 20, 2004.

[¶ 14] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. §§ 27-05-06 and 25-03.1-03. This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. §§ 28-27-01 and 25-03.1-29.

II

[¶ 15] On appeal, K.P. argues the district court abused its discretion in denying her motion for a change of venue.

[¶ 16] Rule 39.1, N.D.R.Civ.P., provides, in part:

(b) Change of Venue.
(1) The court may change the venue of an action or proceeding to another county within or outside a judicial district if:
(A) the county designated in the complaint is not the proper county of venue;
(B) there is reason to believe an impartial trial cannot be obtained in the county of venue; or
(C) the convenience of witnesses and the ends of justice will be promoted by the change.
(2) If venue is changed, the file must be transferred to the new county of venue and any additional papers must be filed in the new county of venue. If venue is changed to a county in a different judicial district, a new judge must be assigned to the action. In the case of a jury trial, the jury panel must be composed of residents of the new county of venue or residents of the judicial district as provided by N.D.C.C. § 27-09.1-05.1.

[¶ 17] K.P. argues the district court erred in denying her motion, because Stutsman County was not the proper county of venue. Because K.P. was taken into custody and detained, N.D.C.C. § 25-03.1-21(3) applies in this case.

[¶ 18] Section 25-03.1-21(3), N.D.C.C., provides:

If a peace officer, physician, psychiatrist, clinical psychologist, or any mental health professional reasonably believes that the respondent is not complying with an order for alternative treatment or that the alternative treatment is not sufficient to prevent harm or injuries to the respondent or others, and that considerations of time and safety do not allow intervention by a court, the designated professional may cause the respondent to be taken into custody and detained at a treatment facility as provided in subsection 3 of section 25-03.1-25 and, within twenty-four hours, shall file a notice with the court stating the circumstances and factors of the case. The state hospital or public treatment facility must immediately accept, and a private treatment facility may accept, the respondent on a provisional basis. The superintendent or director shall require an immediate examination of the respondent and, within twenty-four hours after admission, shall either release the respondent subject to the conditions of the original order or file a notice with the court stating in detail the circumstances and factors of the case. The court shall, within forty-eight hours of receipt of the notice of the superintendent or director, after a hearing and based on the evidence presented and other available information:
a. Release the individual from hospitalization and continue the alternative treatment order;
b. Consider other alternatives to hospitalization, modify its original order, and direct the individual to undergo another program of alternative treatment for the remainder of the commitment period; or
c. Enter a new order directing that the respondent remain hospitalized until discharged from the hospital under section 25-03.1-30.

[¶ 19] K.P. argues this statute, although requiring that notice be filed with the court, does not specify with which court notice should be filed. At the venue hearing, K.P. argued that although the statute does not specify which court, the statute probably means the court that issued the last order. The district court also found N.D.C.C. § 25-03.1-21(3) clearly refers to the court where the order was entered.

[¶ 20] The district court did not err in reading this statute to allow filing of the notice with the court whose order is being violated. The statute gives a remedy for failing to comply with, a court order for alternative treatment. When this remedy is used,-the statute requires that notice be filed with the court. The original order for hospitalization was entered on April 2, 2003, in the district court in Stutsman County. The order for less restrictive treatment was entered on November 5, 2003, also in the district court in Stutsman County. The notice of detention required by N.D.C.C. § 25-03.1-21(3) was filed in Stutsman County. There is nothing in N.D.C.C. § 25-03.1-21(3) that indicates a court other than the one that entered the alternative treatment order should have venue or receive notice of detention. As such, the district court did not abuse its discretion in determining that Stutsman County was the proper county of venue.

[¶ 21] K.P. also argues that even if Stutsman County was the proper county of venue, the interests of justice and convenience of the witnesses required venue to be changed to Cass County.

[¶ 22] A motion for a change of venue on these grounds is addressed to the sound judicial discretion of the trial court. Flattum-Riemers v. Flattum-Riemers, 2003 ND 70, ¶ 19, 660 N.W.2d 558. The district court’s decision will not be reversed on appeal unless the court has abused its discretion. Id. “A trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, if its decision is not the product of a rational mental process leading to a reasoned determination, or if it misinterprets or misapplies the law.” Langness v. Fencil Urethane Systems, Inc., 2003 ND 132, ¶ 9, 667 N.W.2d 596. Abuse of discretion is never assumed. Jundt v. Jurassic Resources Development, 2003 ND 9, ¶ 10, 656 N.W.2d 15. Facts that affirmatively establish a change of venue is warranted must be produced by the party seeking a change of venue. Hendrickson v. Hendrickson, 2000 ND 1, ¶ 9, 603 N.W.2d 896. The party moving for a change of venue must show that the convenience of witnesses and the ends of justice would be promoted by the change. Flattumr-Riemers, at ¶ 19.

[¶ 23] At the change of venue hearing, K.P. stated it would not be easy to get her witness to the hearing but no attempt had yet been made. K.P. argues the convenience of witnesses and the promotion of the ends of justice were denied because her only witness testified by telephone. Relying on Interest of Gust, 345 N.W.2d 42 (N.D.1984), K.P. argues that requiring her witness to testify by telephone denied her the use of a witness on her own behalf. In Gust, we held that “in testimony by telephone the trier of facts is put in a difficult, if not impossible, position to take into account the demeanor of the witness in determining the witness’ credibility.” Id. at 45. We concluded that “witnesses in [ ] involuntary commitment proceedings under NDCC Ch. 25-03.1 must be present in court to present oral testimony unless all the principal parties, including the respondent, with the court’s approval, agree otherwise.” Id.

[¶ 24] K.P. did not make these arguments regarding her witness’s testifying by telephone either in her brief in support of the motion for a change of venue or at the change of venue hearing itself. Further, during the modification hearing, the court again discussed her concerns regarding venue, but she did not object to her witness’s testifying by telephone. K.P. may not raise this issue for the first time on appeal. Mahoney v. Mahoney, 1997 ND 149, ¶ 13, 567 N.W.2d 206.

[¶ 25] K.P. has not shown how she was prejudiced by having her witness testify by telephone, nor has K.P. shown how changing venue would have promoted convenience of the witnesses or the ends of justice. Because K.P. has failed to present any proof that the ends of justice and the convenience of witnesses would have been promoted by a change of venue, we conclude the district court did not abuse its discretion in denying the motion for change of venue.

Ill

[¶ 26] K.P. is challenging the district court’s decision to modify her alternative treatment order. Before the district court could modify KP.’s alternative treatment order and require hospitalization, it had to find K.P. was not complying with the terms of the alternative treatment order or the alternative treatment order was not sufficient to prevent K.P. from inflicting harm or injuries upon herself or others. See Interest of K.P., 2003 ND 114, ¶ 11, 665 N.W.2d 65; see also N.D.C.C. § 25-03.1-21(2). Section 25-03.1-21(2), N.D.C.C., provides:

If the respondent is not complying with the alternative treatment order or the alternative treatment has not been sufficient to prevent harm or injuries that the individual may be inflicting upon the individual or others, the department, a representative of the treatment program involved in the alternative treatment order, the petitioner’s retained attorney, or the state’s attorney may apply to the court or to the district court of a different judicial district in which the respondent is located to modify the alternative treatment order. The court shall hold a hearing within seven days after the application is filed. Based upon the evidence presented at hearing and other available information, the court may:
a. Continue the alternative treatment order;
b. Consider other alternatives to hospitalization, modify the court’s original order, and direct the individual to undergo another program of alternative treatment for the remainder of the ninety-day period; or
c.Enter a new order directing that the individual be hospitalized until discharged from the hospital under section 25-03.1-30. If the individual refuses to comply with this hospitalization order, the court may direct a peace officer to take the individual into protective custody and transport the respondent to a treatment facility.

[¶ 27] “The district court’s findings must be based upon clear and convincing evidence.” Interest of K.P., 2003 ND 114,57 11, 665 N.W.2d 65. The appropriate standard of review for findings of fact is clearly erroneous. Id.

A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is some evidence to support it, or if, although there is some evidence to support it, on the entire evidence, this Court is left with a definite and firm conviction a mistake has been made.

Id.

[¶ 28] K.P. argues the district court erred in finding she had not been complying with the terms of the alternative treatment order. She argues her noncompliance in having missed three doses of medication was not sufficient to allow modification. She argues this noncompliance is distinguishable from the noncompliance found in Interest of K.P., 2003 ND 114, 665 N.W.2d 65, and Interest of R.N., 492 N.W.2d 582 (N.D.1992). In her earlier case, K.P. had refused contact with her case manager, had refused transportation to receive medication, and had refused treatment through SEHSC. K.P., at ¶¶ 13-16. In R.N., R.N. had refused to cooperate with medication monitoring, had not taken medication for a considerable length of time, and had missed scheduled appointments with human service center staff. 492 N.W.2d at 584.

[¶ 29] Section 25-03.1-21(2), N.D.C.C., does not require a specific level of noncompliance with the alternative treatment order. The statute requires only noncompliance. Axtmann testified K.P. failed to take three doses of medication during her 24-hour pass at Christmastime. Axtmann testified K.P. admitted she had not taken her medication and had taken a “med holiday” because she felt she was overmedicat-ed. Axtmann also testified K.P. refused an increase in medication from January 2 through January 5, 2004. Dr. Faust also testified K.P. was noncompliant in taking her medication over Christmastime. Furthermore, both Faust and Axtmann testified they were not sure whether K.P. was taking her medication, because she was showing breakthrough symptoms. Dr. Faust testified she believed there was covert noncompliance. KJP.’s alternative treatment order required medication compliance.

[¶ 30] We conclude there was sufficient evidence to support the district court’s finding K.P. was not following the alternative treatment order. Even if we were to conclude K.P. had complied with the treatment order, the district court also found the alternative treatment was insufficient to prevent harm or injury to K.P. or others.

[¶ 31] K.P. argues this finding of fact is clearly erroneous because the district court failed to consider evidence that her actions in the encounter with the police officer and Gravalin were justified by the law. She argues that because Gravalin is not a mental health professional as defined in N.D.C.C. § 25-03.1-02(10), there was no authority to cause K.P. to be taken into custody under N.D.C.C. § 25-03.1-21(3) and to be detained at a treatment facility. She argues that because her detention was directed by someone acting without authority, it is likely that any force used by the officer was excessive and thus her resistance to an unwarranted seizure was justified. During trial, K.P. questioned Gravalin about the emergency detention; however, she did not argue to the district court that her actions were justified because of an unauthorized detention.

[¶ 32] Section 25-03.1-21(3), N.D.C.C., sets forth the procedures to be filed when emergency detention of a patient is required. The district court made no findings regarding whether KP.’s detention complied with the statute. Although N.D.C.C. § 25-03.1-21(3) does not authorize an LPN to take custody of and detain a person, the statute provides a police officer has that authority if the officer reasonably believes either 1) the respondent is not complying with an order for alternative treatment or 2) the alternative treatment is not sufficient to prevent harm or injuries to the respondent or others.

[¶ 33] In this case, Gravalin and the police officer approached K.P. to assess the situation. They told K.P. they were considering rehospitalization. It was the police officer, however, who detained K.P. and brought her to the emergency room. Although the LPN directed that K.P. be detained, it can be inferred that she apprised the officer of the situation and that he had reason to know K.P. was not complying with the alternative treatment order. Further, for K.P.’s argument to be valid, she would have to show she believed the officer was not authorized to detain her. K.P. did not testify she believed the officer was acting without authority, nor did she present any evidence to show she believed the officer was acting without authority. We conclude the police officer had authority to detain K.P. and bring her into custody and the district court did not err in failing to consider whether her actions.were justified.

[¶ 34] K.P. does not argue the court had insufficient evidence to find the alternative treatment order failed to prevent K.P. from harming herself or others. Nonetheless, testimony at the trial indicates the alternative treatment order was not sufficient to prevent K.P. from harming herself or others. Gravalin testified that when she and the police officer approached K.P., K.P. was belligerent and irate. She testified K.P. yelled, screamed, and fought. She testified that K.P. then reached into her right coat pocket and pulled out a medical scalpel. She testified the officer placed K.P. on the ground and put his knee in her back while K.P. continued to hang onto the scalpel. She testified the officer had to bang KP.’s wrist on the road to get her to release the scalpel. Axtmann testified that because of this incident, she felt the alternative treatment order was insufficient to prevent harm to K.P. or others.

[¶ 35] Dr. Faust testified K.P. has a history of attempting to be violent with others, especially when people are trying to hospitalize her. She also testified that K.P. is unable to recognize she is ill or getting more ill and that she projects her difficulties or circumstances on other individuals and doesn’t realize she is getting into trouble. She testified the police incident was consistent with this pattern.

[¶ 36] We conclude the incident involving the medical scalpel supports the district court’s conclusion that the alternative treatment order is not sufficient to prevent K.P. from inflicting injury or harm to herself or others at this time.

IV

[¶ 37] We affirm, concluding the district court’s decision to modify the alternative treatment order was not clearly erroneous.

[¶ 38] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.


source: Caselaw Access Project

author: MARING, Justice.

license: Public Domain

text:
    2004 ND 60
    NODAK MUTUAL INSURANCE COMPANY, a North Dakota mutual insurance company, and the Office of the North Dakota Insurance Commissioner, Plaintiffs and Appellees, v. The WARD COUNTY FARM BUREAU, a North Dakota non-profit corporation located in Ward County, and currently unidentified John Does acting in cooperation or concert with the named Defendant, Defendants and Appellants.
    No. 20030134.
    Supreme Court of North Dakota.
    March 23, 2004.
    Rehearing Denied April 13, 2004.

      Todd E. Zimmerman (argued) and Sarah Andrews Herman (on brief), Dorsey & Whitney, Fargo, ND, for plaintiff and ap-pellee Nodak Mutual Insurance Company.
    Douglas A. Bahr, Solicitor General, Attorney General’s Office, Bismarck, ND, for plaintiff and appellee Office of the North Dakota Insurance Commissioner.
    Lynn M. Boughey, Boughey Law Firm, Minot, ND, for defendants and appellants.
   MARING, Justice.

[¶ 1] The Ward County Farm Bureau appealed from a judgment and amended judgment dismissing its counterclaims against Nodak Mutual Insurance Company (“Nodak”) and the North Dakota Insurance Commissioner and refusing to postpone a special election to amend Nodak’s bylaws and select new directors. We conclude the district court correctly ruled Ward County Farm Bureau lacked standing for its counterclaims against the Commissioner, and the court did not abuse its discretion in refusing to postpone the election. We affirm.

I

[¶ 2] Nodak is a North Dakota mutual insurance corporation organized under N.D.C.C. ch. 26.1-12, which serves more than 26,000 policyholders. Ward County Farm Bureau is a North Dakota non-profit corporation located in Ward County, which consists of approximately 1,200 members. Most of its members carry insurance policies with Nodak.

[¶ 3] On September 23, 2002, the Commissioner placed Nodak under administrative supervision after receiving a letter from corporate officers who expressed management concerns. Nodak consented to the administrative supervision. In November 2002, Ward County Farm Bureau sent a lengthy list of questions to the Commissioner and Nodak relating to the supervision and financial position of No-dak. Ward County Farm Bureau was not satisfied with the quality of the answers it received.

[¶ 4] The Commissioner determined it was in the best interests of Nodak to restructure its board of directors, which required an amendment to the corporation’s bylaws. Notice of the proposed bylaw amendments, the proposed slate of new directors, and a proxy form were sent to Nodak’s policyholders before December 21, 2002. The notice, which was also published, scheduled a special shareholders’ meeting for the election on March 21, 2003. In January 2003, Ward County Farm Bureau requested a list of Nodak policyholders from Nodak, and without receiving the list, Ward County Farm Bureau began sending and distributing copies of the original Nodak proxy to Ward County Farm Bureau members. Nodak .and the Commissioner demanded that Ward County Farm.Bureau stop copying and distributing the proxies. Ward County Farm Bureau stopped distributing the proxy ballets and again asked the Commissioner and Nodak for a list of. policyholders. The Commissioner and Nodak refused.

[¶ 5] On January 31, 2003, Nodak and the Commissioner brought this action against Ward County Farm Bureau “and currently unidentified John Does acting in cooperation or concert with the named Defendant.”. Nodak and the Commissioner asked the district court (1) to enjoin the defendants from copying or distributing Nodak’s proxy; (2) to declare that Nodak was not required to make a voting list available to the defendants for inspection and copying; (3) or, in the alternative, to restrict the defendants’ access to and use of a policyholder list “to safeguard the privacy of Nodak policyholders to the extent possible.” On February 7, 2003, Ward County Farm Bureau filed an answer and counterclaim. In the counterclaim, Ward County Farm Bureau asked the district court (1) to declare Ward County Farm Bureau and its members had the right to copy and distribute No-dak’s proxy and to enjoin the plaintiffs from interfering with their rights; (2) to order that the. plaintiffs provide the list of Nodak policyholders; (3) to declare that the plaintiffs failed to protect and ensure the voting rights of Nodak policyholders and order the plaintiffs to update the policyholder list, reschedule the election to a later date, and submit a plan for court approval that allows minority policyholders to participate and supervise the collection, verification and counting of the proxies; (4) to dismiss the Commissioner from the action because “he does not have the right to interfere in the rights of Nodak policyholders;” (5) to declare that the Commissioner has exceeded his authority in taking over management of Nodak and enjoin him from interfering in the internal management of Nodak and from interfering with the rights of policyholders regarding the election; and’ (6) to terminate the Commissioner’s administrative supervision over Nodak.

[¶ 6] On February 13, 2003, the district court, relying on N.D.C.C. § 10-19.1-73.3, allowed Ward County Farm Bureau to copy and distribute Nodak’s proxy and to copy Nodak’s policyholder list for use in contacting policyholders regarding the March 21, 2003, election. The court found that “ample time still exists for the shareholder or his agent to copy such list and contact the shareholders prior to the meeting scheduled for March 21, 2003.” Nodak provided the list to Ward County Farm Bureau the next day. The Commissioner and Nodak did not appeal.

[¶ 7] On February 20, 2003, Ward County Farm Bureau sent 58 interrogatories to Nodak. On March 7, 2003, the Commissioner moved to dismiss the counterclaims against him, asserting, among other things, that the first two counterclaims were mooted by the court’s previous ruling and Ward County Farm Bureau had no standing to asseyt the remainder of its counterclaims against the Commissioner. On March 13, 2003, Ward County Farm Bureau moved to postpone the special election “for at least 60 days from the day that it is scheduled, or in the alternative at least 30 days after complete and full answers to interrogatories have been received.” Ward County Farm Bureau scheduled a hearing on March 14, 2003, two days after faxing the motion to the Commissioner and Nodak, and almost one week before Ward County Farm Bureau was required to file a response to the Commissioner’s motion to dismiss. Although Nodak responded with a brief to Ward County Farm Bureau’s motion to postpone the election, the Commissioner did not file a written response and Ward County Farm Bureau did not file a written response to the Commissioner’s motion to dismiss by the March 14 hearing date.

[¶ 8] At the hearing, the Commissioner argued standing was a threshold issue that had to be addressed before considering the merits of Ward County Farm Bureau’s remaining counterclaims and its motion to postpone the election. At the conclusion of the hearing, the district court denied Ward County Farm Bureau’s motion, noting Ward County Farm Bureau had pointed to “no statutory violation of anything,” and finding Ward County Farm Bureau faced no irreparable harm because “[i]f this election is conducted wrongfully[,] that can be challenged.” The court also dismissed the remainder of Ward County Farm Bureau’s counterclaims that had not been disposed of in the earlier decision because Ward County Farm Bureau “has no standing to bring all these issues on behalf of whatever policy holders are individual policy holders or individual stockholders.” The special election was conducted on March 21, 2003. After Ward County Farm Bureau appealed from the district court judgments, the Commissioner lifted and discontinued his administrative supervision over Nodak effective July 29, 2003.

II

[¶ 9] After this appeal was filed, Ward County Farm Bureau moved in this Court to supplement the record under N.D.R.App.P. 10(h). Ward County Farm Bureau seeks to introduce documentation that it was a Nodak policyholder until January 28, 2003, two days before the Commissioner and Nodak commenced the action against Ward County Farm Bureau. It is unnecessary to rule on this motion, because assuming Ward County Farm Bureau was a policyholder, it would not change the result in this case.

Ill

[¶ 10] Ward County Farm Bureau argues the district court erred in ruling it had no standing to raise the remainder of its counterclaims challenging the Commissioner’s actions.

[¶ 11] In Rebel v. Nodak Mut. Ins. Co., 1998 ND 194, ¶8, 585 N.W.2d 811, we said:

A party is entitled to have a court decide the merits of a dispute only after demonstrating the party has standing to litigate the issues placed before the court. State v. Tibor, 373 N.W.2d 877 (N.D.1985). Standing is the concept used “ ‘to determine if a party is sufficiently affected so as to insure that a justiciable controversy is presented to the court.’ ” Billey v. North Dakota Stockmen’s Ass’n, 1998 ND 120, ¶ 7, 579 N.W.2d 171 (quoting Black’s Latv Dictionary 1405 (6th ed.1990)). A person cannot invoke the jurisdiction of the court to enforce private rights or maintain a civil action for the enforcement of those rights unless the person has in an individual or representative capacity some real interest in the cause of action, or a legal or equitable right, title, or interest in the subject matter of the controversy. State v. Rosenquist, 78 N.D. 671, 51 N.W.2d 767 (1952). Litigants cannot by consent, either passive or express, dispense with necessary parties, or confer upon a person who does not have a sufficient interest in a controversy entitlement to bring suit. McIntyre v. State Board of Higher Education, 71 N.D. 630, 3 N.W.2d 463 (1942).

Standing analysis requires a two-fold inquiry: (1) plaintiffs must suffer some threatened or actual injury resulting from the putatively illegal action, and (2) the asserted harm must not be a generalized grievance shared by all or a large class of citizens, i.e., plaintiffs generally must assert their own legal rights and interests and cannot rest their claim for relief on the legal rights and interests of third parties. Kjolsrud v. MKB Mgmt. Corp., 2003 ND 144, ¶ 14, 669 N.W.2d 82; State v. Carpenter, 301 N.W.2d 106, 107 (N.D. 1980).

[¶ 12] Like a plaintiff who files suit against a defendant, a defendant must possess standing to assert a counterclaim against a plaintiff. E.g., Transamerica Ins. Co. v. South, 125 F.3d 392, 396 (7th Cir.1997); Kluge v. Fugazy, 737 F.Supp. 208, 212 (S.D.N.Y.1990); Clayton v. Ideal Chem. & Supply, No. CA98-1145, 1999 WL 318032, 1999 Ark.App. LEXIS 305, at - 3-6 (Ark.App. May 12, 1999); see also State v. Rosenquist, 78 N.D. 671, 706, 51 N.W.2d 767, 788 (1952) (stating codefen-dants may have standing to raise issues between themselves even though plaintiff has no right to maintain an action). The standing requirement applies to declaratory judgment actions. See Rebel, 1998 ND 194, ¶ 13, 585 N.W.2d 811; Richland County Water Res. Bd. v. Pribbernow, 442 N.W.2d 916, 918 (N.D.1989). The existence of standing is a question of law which is reviewed de novo. Oti Kaga, Inc. v. South Dakota Hous. Dev. Auth., 342 F.3d 871, 877 (8th Cir.2003); Information Handling Servs., Inc. v. Defense Automated Printing Servs., 338 F.3d 1024, 1029 (D.C.Cir.2003); Lee v. City of Chicago, 330 F.3d 456, 468 (7th Cir.2003); Park v. Forest Service of United States, 205 F.3d 1034, 1036 (8th Cir.2000).

A

[¶ 13] Ward County Farm Bureau argues that it has organizational standing to challenge the Commissioner’s actions involving Nodak because “[a]lmost all” of its members are Nodak policyholders.

[¶ 14] In 9 V. Braucher, B. Jacobsthal & G. O’Gradney, Fletcher Cyclopedia of the Law of Private Corporations, § 4227, at pp. 47-49 (1999 Rev. ed.) (footnotes omitted), the authors summarize the general rules for organizational standing:

[A] corporation does not have standing to bring an action to enforce or redress the rights of its shareholders. On the other hand, a nonprofit organization that has not suffered an injury itself can sue as the representative of its members if: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. In addition, a nonprofit membership corporation has standing to seek judicial review on behalf of its members, of governmental or municipal regulations directly affecting such members. But the corporation or its members ordinarily must be adversely affected or injured in fact by the challenged action or regulation. Thus, where the alleged injury to the individual results only from the injury to the corporation, the injury is merely derivative and the individual does not have a right of action against the third party. In other words, the individual does not have standing unless the wrong done amounts to a breach of duty owed to the individual personally.

See also Hunt v. Washington Apple Adver. Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977).

[¶ 15] The first requirement for organizational standing, i.e., that “its members would otherwise have standing to sue in their own right,” Hunt, 432 U.S. at 343, 97 S.Ct. 2434, has not been satisfied in this case. Ward County Farm Bureau’s third, fourth, fifth and sixth counterclaims challenge the Commissioner’s actions or inactions regarding the upcoming election, his authority to place Nodak under administrative supervision, and essentially seek court supervision over Nodak and the election process. Nodak itself consented to administrative supervision. The counterclaims against the Commissioner allege wrongs have been committed to Nodak’s corporate entity. Individual shareholders generally have no right to bring actions in their individual names and on their own behalf for a wrong committed against the corporation. Littlefield v. Union State Bank, 500 N.W.2d 881, 885 (N.D.1993); Fisher v. Pederson, 100 N.W.2d 156, 159 (N.D.1959); see also In re Haakenson, 159 B.R. 875, 885 (Bankr.D.N.D.1993); PacLink Communications Int’l, Inc. v. Superior Court, 90 Cal.App.4th 958, 109 Cal. Rptr.2d 436, 440 (2001); Wells Fargo Ag Credit Corp. v. Batterman, 229 Neb. 15, 424 N.W.2d 870, 873 (1988); Abrams v. Donati, 108 A.D.2d 704, 485 N.Y.S.2d 1012, 1013 (App.Div.1985); Norman v. Nash Johnson & Sons’ Farms, Inc., 140 N.C.App. 390, 537 S.E.2d 248, 253 (2000). “To have standing to sue individually, the shareholder must allege an injury separate and distinct from other shareholders, or a wrong involving a contractual right of the shareholder that exists independently of any right of the corporation.” Bovee v. Lyndonville Sav. Bank & Trust Co., 174 Vt. 507, 811 A.2d 143, 145-46 (2002). See also Goldberg v. Michael, 328 Ill.App.3d 593, 262 Ill.Dec. 626, 766 N.E.2d 246, 251 (2002). This Court has recognized that “[a]s a matter of general corporate law, shareholders alleging injury to the corporation must bring an action on behalf of the corporation within the context of a derivative action.” Schumacher v. Schumacher, 469 N.W.2d 793, 798 (N.D.1991).

[¶ 16] Individual Ward County Farm Bureau members have alleged no injury separate and distinct from other Nodak policyholders concerning the Commissioner’s actions involving the election and the Commissioner’s administrative supervision over Nodak. To challenge the Commissioner’s actions and administrative supervision under these circumstances, individual members would be required to bring a shareholder derivative suit on behalf of Nodak. The counterclaims in this case are not brought on behalf of Nodak. Consequently, because Ward County Farm Bureau’s members would not have standing to sue in their own right, we conclude Ward County Farm Bureau lacks organizational standing to assert its counterclaims against the Commissioner on behalf of its members.

B

[¶ 17] Ward County Farm Bureau’s argument that it has individual standing because it had a policy with No-dak in force during the time the relevant events occurred between September 20, 2002, and January 28, 2003, fails for the same reason Ward County Farm Bureau lacks organizational standing. Ward County Farm Bureau alleges no injury separate and distinct from other Nodak policyholders and its counterclaims against the Commissioner are not brought on behalf of Nodak. Because Ward County Farm Bureau has no right to bring counterclaims against the Commissioner in its individual name and on its own behalf for alleged wrongs committed against Nodak, we conclude Ward County Farm Bureau lacks individual standing to assert those counterclaims against the Commissioner.

C

[¶ 18] Ward County Farm Bureau argues the district court erred in dismissing the counterclaims against the Commissioner for lack of standing because its response to the Commissioner’s motion was not yet due when the issue was decided, and if it had been allowed the appropriate amount of time, Ward County Farm Bureau would have briefed the issue, identified several of the “John Does” and offered documentation it was a policyholder to establish standing. We reject this argument for several reasons.

[¶ 19] Ward County Farm Bureau scheduled the hearing on its motion to postpone the election to be held only two days after faxing the motion to the Commissioner and Nodak, well before the ten days provided the adverse party to respond under N.D.R.Ct. 3.2(a). We have said a “party is entitled to have a court decide the merits of a dispute only after demonstrating standing to litigate the issues placed before the court.” Triple Quest, Inc. v. Cleveland Gear Co., 2001 ND 101, ¶ 13, 627 N.W.2d 379. See also Kjolsrud, 2003 ND 144, ¶ 13, 669 N.W.2d 82; Rebel, 1998 ND 194, ¶ 8, 585 N.W.2d 811. Consequently, standing was a threshold requirement that could not be avoided by Ward County Farm Bureau expediting the hearing on its motion to postpone the election to occur before its deadline to file a response to the Commissioner’s motion to dismiss for lack of standing. Moreover, Ward County Farm Bureau was aware of the Commissioner’s motion to dismiss for one week before the hearing on its motion to postpone the election was held, a longer period of time than allowed the Commissioner and Nodak to respond to Ward County Farm Bureau’s motion. Ward County Farm Bureau is in no position to complain about inadequate time to respond to the Commissioner’s allegation that it' lacked standing when it forced immediate resolution of the issue by scheduling a hearing before its response was due.

[¶ 20] In any event, even if Ward County Farm Bureau had identified individual “John Does,” it does not necessarily follow that standing could have been established. The counterclaims against the Commissioner are alleged only in the name of “Defendant Ward County Farm Bureau.” We have already concluded individual members and shareholders of Nodak, including Ward County Farm Bureau itself, could not challenge in their individual names and on their own behalf in this action the Commissioner’s administrative supervision over Nodak. No shareholder derivative action challenging the Commissioner’s actions and his administrative supervision over Nodak was commenced.

[¶ 21] Ward County Farm Bureau also asserts Nodak and the Commissioner conferred standing upon it by bringing this action naming Ward County Farm Bureau as a defendant. However, litigants cannot by consent confer upon a person who does not have a sufficient interest in a controversy entitlement to bring suit. Rebel, 1998 ND 194, ¶ 8, 585 N.W.2d 811; McIntyre v. State Bd. of Higher Educ., 71 N.D. 630, 635, 3 N.W.2d 463, 465 (1942). The Commissioner and Nodak could not confer standing upon Ward County Farm Bureau to challenge by counterclaim the Commissioner’s actions and administrative supervision simply by naming it as a defendant in this action.

[¶ 22] We conclude the district court did not err in dismissing Ward County Farm Bureau’s counterclaims challenging the Commissioner’s actions for lack of standing to raise those issues.

IV

[¶23] Nodak did not challenge, and does not challenge on appeal, Ward County Farm Bureau’s standing to bring its motion against Nodak to postpone the special election. This Court has said a failure to object to a party’s standing in the trial court and on appeal results in a waiver of the issue. See Judson PTO v. New Salem Sch. Bd., 262 N.W.2d 502, 505 (N.D.1978); see also Vermeer Indus. v. Bachmeier, 486 N.W.2d 506, 508 (N.D.1992). Ward County Farm Bureau argues the district court erred in failing to grant its motion for injunctive relief and to postpone the special election.

[¶ 24] Generally, to be entitled to injunctive relief, a party must show no adequate remedy at law exists and irreparable injury will result if relief is not granted. Huber v. Oliver County, 1999 ND 220, ¶ 20, 602 N.W.2d 710. The four factors used for determining whether a court should issue a preliminary injunction are: (1) substantial probability of succeeding on the merits; (2) irreparable injury; (3) harm to other interested parties; and (4) effect on the public interest. Magrinat v. Trinity Hosp., 540 N.W.2d 625, 629 (N.D.1995). The granting or denying of injunctive relief rests within the sound discretion of the district court, and the court’s ruling will not be reversed on appeal unless there has been an abuse of discretion. Huber, at ¶ 20. A district court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, its decision is not the product of a rational mental process leading to a reasoned determination, or it misinterprets or misapplies the law. Western Nat’l Mut. Ins. Co. v. University of North Dakota, 2002 ND 63, ¶ 31, 643 N.W.2d 4.

[¶25] Ward County Farm Bureau argues the court should have postponed the corporate special election until Nodak and the Commissioner provided it information relating to why the Commissioner took over Nodak, what management problems were extant at the time of the takeover, which managers were selected by Nodak to continue as managers, who had the right to vote, how many votes a person could exercise, how the proxies would be counted, and what protections would be provided to minority policyholders. Ward County Farm Bureau also claims the election should have been postponed until it was given sufficient time to communicate with those policyholders.

[¶ 26] The caselaw relied upon by Ward County Farm Bureau does not support its argument that this corporate special election should have been postponed. The courts in McKesson Corp. v. Derdiger, 793 A.2d 385 (Del.Ch.2002); Thompson v. Enstar Corp., 509 A.2d 578 (Del.Ch.1984); Lerman v. Diagnostic Data, Inc., 421 A.2d 906 (Del.Ch.1980); Tweedy, Browne & Knapp v. Cambridge Fund, Inc., 318 A.2d 635 (Del.Ch.1974); and Schnell v. Chris-Craft Indus., Inc., 285 A.2d 437 (Del.1971), did not address attempts to postpone corporate elections. Aprahamian v. HBO & Co., 531 A.2d 1204 (Del.Ch.1987), involved a request for preliminary injunction to prohibit incumbent directors of the corporation from postponing an annual meeting of stockholders. In Steinberg v. American Bantam Car Co., 76 F.Supp. 426, 440-41 (W.D.Pa.1948), the court granted a temporary restraining order postponing an election because the board of directors delayed the annual meeting in violation of bylaws, delayed providing audited financial statements, and delayed providing a requested shareholder list until a few days before the scheduled election. The subsequent appeal was dismissed as moot because “the stockholders’ meeting has long since been held.” Steinberg v. American Bantam Car Co., 173 F.2d 179, 180 (3d Cir.1949).

[¶ 27] The gist of Ward County Farm Bureau’s complaint in this case is the failure of Nodak and the Commissioner to answer submitted questions it deemed “essential.” The right of shareholder access to corporate documents and records is broad and is provided for in N.D.C.C. §§ 10-19.1-84 and 10-19.1-85. See also Schmidt v. Anderson, 29 N.D. 262, 266, 150 N.W. 871, 873 (1915), overruled in part, Lien v. Savings., Loan & Trust Co., 43 N.D. 260, 267, 174 N.W. 621, 623 (1919). The statutes provide a right of inspection, however, and not a right to receive answers to questions submitted by shareholders. See generally 5A T. Bjur & D. Jensen, Fletcher Cyclopedia of the Law of Private Corporations § 2215 (1995 Rev. ed.). Ward County Farm Bureau has not sought access to inspect any books or records of Nodak, but has simply posed questions to the Commissioner and Nodak. While Nodak or the Commissioner could have answered those questions, they were not legally required to do so. . Inspection of corporate books'and records is one of a shareholder’s “ ‘tools at hand’ ” to develop necessary facts for pleading purposes. White v. Panic, 783 A.2d 543, 549 n. 15 (Del.Super.Ct.2001).

[¶ 28] Although Ward County Farm Bureau has a “strong view that the election held in this matter was unfair, and that [it] had not been provided the information requested or the names of the policyholders in time in which to make the election fair,” Ward County Farm Bureau did not demonstrate to the district court or to this Court that any statute has been violated, or would have been violated unless the election was postponed. Ward County Farm Bureau received Nodak’s policyholder list more than one month before the election, a period of time the district court found “ample” under the circumstances. Postponing the election would have required that new proxies be sent to more than 26,000 policyholders at substantial cost and expense to Nodak. The court found no irreparable harm would result to Ward County Farm Bureau because the election could be challenged if it was wrongfully conducted. See N.D.C.C. §§ 10-19.1-85.1 and 10-19.1-86; 2 V. Braucher, T. Evans & G. O’Gradney, Fletcher Cyclopedia of the Law of Private Corporations §§ 292 and 293 (1998 Rev. ed.). We conclude the district court did not abuse its discretion in refusing to postpone the special corporate election.

V

[¶29] The district court granted the relief Ward County Farm Bureau sought in its first and second counterclaims and denied the injunctive relief to postpone the election sought against Nodak in the third counterclaim. We have concluded the district court did not abuse its discretion in refusing to postpone the election. The remainder of the relief sought in the third counterclaim, and the fourth, fifth and sixth counterclaims challenged the Commissioner’s actions and authority over No-dak, and we have concluded Ward County Farm Bureau had no standing to raise those issues. It is unnecessary to address the other issues raised.

[¶ 30] The judgment and amended judgment are affirmed.

[¶ 31] GERALD W. YANDE WALLE, C.J., WILLIAM A. NEUMANN, DALE y. SANDSTROM and CAROL RONNING KAPSNER, JJ„ concur.


author: KAPSNER, Justice. MARING, Justice,

text:
    2004 ND 55
    Betty GROLEAU, Plaintiff and Appellant, v. BJORNSON OIL COMPANY, INC., a North Dakota corporation, and Amoco Oil Company, a Maryland corporation, Defendants and Appellees.
    No. 20030171.
    Supreme Court of North Dakota.
    March 23, 2004.

      Steven L. Latham, Wheeler Wolf, Bismarck, N.D., for plaintiff and appellant.
    Joel A. Flom (argued) and James J. Ranheim (on brief), Jeffries, Olson & Flom, P.A., Moorhead, MN, for defendant and appellee Bjornson Oil Co.
    Steven A. Storslee (argued) and Chris A. Edison (on brief), Storslee Law Firm, P.C., Bismarck, N.D., for defendant and appel-lee Amoco Oil Co., Inc.
   KAPSNER, Justice.

[¶ 1] Betty Groleau appeals from a summary judgment dismissing her claims against Bjornson Oil Company (“Bjorn-son”) and Amoco Oil Company (“Amoco”). We affirm the dismissal of Groleau’s claims against Amoco but reverse the dismissal of her claims against Bjornson, concluding there are genuine issues of material fact precluding summary judgment in favor of Bjornson.

I

[¶ 2] On August 26, 1999, Groleau and her husband were traveling through Devils Lake, North Dakota, on vacation. At approximately 4:30 in the afternoon, they stopped to fill their pickup with gas at a gas station owned by Bjornson. There were three raised gas pump islands in front of the station, and the Groleaus stopped at the one farthest from the station. Groleau went inside the station to use the restroom and pay for the gas while her husband filled the pickup.

[¶ 3] When Groleau left the station, she walked back towards the pickup and tripped over the first gas pump island. Groleau claimed that the sun was directly in her eyes, she was wearing sunglasses, there were shadows camouflaging the edge of the island, and the black edge of the island “blended in” and looked level with the surrounding area. Groleau injured her left elbow and leg and was taken by ambulance to a Devils Lake hospital. She was subsequently transferred to a Minot hospital for surgery to her elbow.

[¶ 4] Groleau brought this premises liability action against Bjornson and Amoco, alleging negligence in failing to properly light the area, in painting the edge of the island black, and in failing to warn of a known hazard. Following discovery, Bjornson and Amoco moved for summary judgment, claiming the danger of the raised island was open and obvious and they therefore had no duty to warn. Amoco also argued it owed no duty to Groleau because it had no control over the premises. The district court concluded that Amoco had no control over the premises and that the condition of the gas pump island was open and obvious, and Bjornson and Amoco accordingly owed no duty to Groleau. Judgment was entered dismissing Groleau’s claims, and she appealed.

II

[¶ 5] Summary judgment under N.D.R.Civ.P. 56 is a procedural device for promptly and expeditiously disposing of an action without a trial if either party is entitled to judgment as a matter of law and no dispute exists as to either the material facts or the reasonable inferences to be drawn from undisputed facts, or if resolving the factual disputes will not alter the result. Fish v. Dockter, 2003 ND 185, ¶ 7, 671 N.W.2d 819; Northern Plains Alliance, L.L.C. v. Mitzel, 2003 ND 91, ¶ 8, 663 N.W.2d 169. The party seeking summary judgment has the burden of showing that there is no genuine issue of material fact and that, under applicable principles of substantive law, the party is entitled to judgment as a matter of law. Collette v. Clausen, 2003 ND 129, ¶ 6, 667 N.W.2d 617. In considering a motion for summary judgment, the court must view the evidence in the light most favorable to the party opposing the motion, and that party must be given the benefit of all favorable inferences which can reasonably be drawn from the evidence. Skjervem v. Minot State Univ., 2003 ND 52, ¶ 4, 658 N.W.2d 750. Even undisputed facts do not justify summary judgment if reasonable differences of opinion exist as to the inferences to be drawn from those facts. Pierce v. B.P.O. of Elks Lodge No. 1214, 2004 ND 26, ¶ 8, 673 N.W.2d 914.

[¶ 6] Negligence actions are ordinarily inappropriate for summary judgment because they involve issues of fact. Iglehart v. Iglehart, 2003 ND 154, ¶ 11, 670 N.W.2d 343; Stanley v. Turtle Mountain Gas & Oil, Inc., 1997 ND 169, ¶ 8, 567 N.W.2d 345. Actionable negligence consists of a duty on the part of an allegedly negligent party to protect the plaintiff from injury, a failure to discharge that duty, and a resulting injury proximately caused by the breach of the duty. Grewal v. North Dakota Ass’n of Counties, 2003 ND 156, ¶ 9, 670 N.W.2d 336; Iglehart, at ¶ 11. To establish a cause of action for negligence, the plaintiff must show the defendant had a duty to protect the plaintiff from injury. Grewal, at ¶ 9. Whether a duty exists is generally a preliminary question of law for the court. Greioal, at ¶ 9; Iglehart, at ¶ 11. However, if the existence of a duty depends upon the resolution of factual issues, the facts must be resolved by the trier of fact. Grewal, at ¶ 9; Iglehart, at ¶ 11; Collette, 2003 ND 129, ¶ 12, 667 N.W.2d 617. Issues of fact may become issues of law for the court if reasonable persons could reach only one conclusion from the facts. Collette, at ¶ 12; Hurt v. Freeland, 1999 ND 12, ¶ 9, 589 N.W.2d 551. When the existence of duty requires resolution of factual disputes, however, summary judgment is inappropriate and the proper procedure is for the court to instruct the jury as to the defendant’s duty, or absence of duty, if certain facts are found. Butz v. Werner, 438 N.W.2d 509, 511 (N.D.1989); Barsness v. General Diesel & Equip. Co., 383 N.W.2d 840, 843 (N.D.1986); Restatement (Second) of Torts § 328B, Comment e (1965).

HI

[¶ 7] Amoco contends that it had no control over the premises where Gro-leau’s injury occurred and accordingly owed no duty to protect or warn Groleau.

[¶ 8] Resolution of this issue requires an examination of the contractual relationships involved. Amoco had a written contract with Gouldings, Inc., a North Dakota jobber, under which Amoco agreed to sell its products to Gouldings. In turn, Gould-ings had an oral agreement with Bjornson to sell Amoco products to Bjornson for resale at Bjornson’s gas station. Amoco had no contractual relationship with Bjorn-son.

[¶ 9] As part of Amoco’s contract with Gouldings, retail stations which purchased Amoco products from Gouldings were permitted to use Amoco trade identities if Amoco gave prior written consent. The parties have designated such stations permitted to use Amoco marks as “branded” stations. Under the terms of the Amoco/Gouldings contract, the approval to use Amoco’s trade identities was solely within Amoco’s discretion and would be based upon various factors:

6. Site Approval.
(a) Use of Company’s Trade Identities at each Approved Retail Site. It is and will be an on-going condition of the right to use Company’s Trade Identities under this Contract, that Jobber must first obtain Company’s prior written consent for each and every location that Jobber desires to identify with Company’s Trade Identities, including all Jobber Marketer retail locations. The approval and designation as an Approved Retail Site will be within Company’s sole discretion and will be based on certain factors and upon certain criteria relative to the site, including but not limited to: current or proposed appearance; current or proposed Trade Identities to be used; location of underlying real estate; ownership status of underlying real estate; current or proposed mode of operation; current or proposed offer; current or projected volume; current or proposed hours of operation; current or proposed training capabilities; current or proposed improvements, facilities or equipment; enrollment or participation in the Company’s “mystery” shop program; Company’s then current image programs and standards (both operational and visual), as amended; or Company’s then current or amended retail marketing strategies and development plans in the vicinity of the proposed location, or elsewhere.

Amoco retained the right to revoke its approval of a previously approved site for various reasons, but the contract expressly provided that Gouldings had the right to supply Amoco products to retail stations whose approval had been revoked or which had not been approved as a “branded” station.

[¶ 10] One of the factors Amoco could consider in determining whether to approve a retail site as a “branded” station was Amoco’s visual image programs and standards. Amoco’s approved color scheme and specifications directed that the base of elevated gas pump islands be painted black if the island had a steel curb form. The base of the island which Gro-leau tripped over was painted black as recommended in Amoco’s specifications.

[¶ 11] Under premises liability law, a defendant must have had control over the property where the injury occurred in order to find the defendant owed a duty to an injured party. Doan v. City of Bismarck, 2001 ND 152, ¶ 13, 632 N.W.2d 815; Stanley v. Turtle Mountain Gas & Oil, Inc., 1997 ND 169, ¶ 9, 567 N.W.2d 345. Control is an essential prerequisite for imposition of premises liability. Doan, at ¶ 13; Stanley, at ¶ 9. Before a defendant owes a duty of care, it must be demonstrated the defendant had control of the premises and an opportunity to observe any duty. Stanley, at ¶ 9.

[¶ 12] Groleau argues Amoco had control over the premises through its contract with Gouldings and was negligent in determining the base of the island should be painted black rather than a brighter, more visible color. The evidence presented in opposition to the motion for summary judgment, however, simply does not demonstrate any right by Amoco to control the premises. At most, the evidence shows Amoco reserved the right to approve use of its trade identities, and conformity to Amoco’s approved color scheme was one factor in that decision. There is no indication that Amoco would have automatically revoked its approval of Bjornson’s station if Bjornson had decided to paint the base of the island a different color for safety reasons. Furthermore, even if Amoco had revoked its approval, Amoco could not prevent Gouldings from continuing to supply Bjornson with Amoco products. Amoco retained control over its trade identities, but had no control over the premises where the injury occurred.

[¶ 13] Most importantly, Amoco had no contractual relationship with Bjornson. If Amoco had decided it wanted the base of the island painted a different color, it had no right, contractual or otherwise, to require Bjornson to do so. Thus, this case is distinguishable from a franchise agreement, where the parties may mutually agree and have an enforceable, contractual right to control use and appearance of the premises. Amoco’s relationship to Bjorn-son and the premises is too tenuous to be considered “control” which would give rise to a duty to protect entrants upon the premises.

[¶ 14] Groleau has cited no caselaw or other relevant authority supporting her assertion that, under these circumstances, Amoco had control of the premises. We conclude the trial court correctly determined Amoco had no control of the premises and owed no duty to Groleau, and therefore summary judgment dismissing Groleau’s claims against Amoco was appropriate.

IV

[¶ 15] Groleau contends the trial court erred in concluding that the condition of the gas pump island was “open and obvious” as a matter of law and that Bjornson therefore owed no duty to protect Groleau.

[¶ 16] Under premises liability law, landowners owe a general duty to lawful entrants to maintain their property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to another, the, seriousness of the injury, and the burden of avoiding the risk. Green v. Mid Dakota Clinic, 2004 ND 12, ¶ 8, 673 N.W.2d 257; Doan v. City of Bismarck, 2001 ND 152, ¶ 13, 632 N.W.2d 815; Stemberger v. City of Williston, 556 N.W.2d 288, 290 (N.D.1996); see Restatement (Second) of Torts § 343 (1965). The landowner has a right to use the property and develop it for profit and enjoyment, but when the landowner conducts dangerous activities or permits dangerous conditions to exist on the premises the landowner must take reasonable measures to prevent injury to those ivhose presence on the property reasonably can be foreseen. Doan, at ¶ 13; see Restatement (Second) of Torts § 343 (1965).

[¶ 17] A landowner’s duty to protect entrants upon the land or warn of dangerous conditions is limited when the dangerous condition is known or obvious to the entrant. Stemberger, 556 N.W.2d at 290; Restatement (Second), of Torts § 343A (1965); see also Iglehart, 2003 ND 154, ¶ 17, 670 N.W.2d 343; Collette, 2003 ND 129, ¶ 27, 667 N.W.2d ,617; Morrison v. Grand Forks Hous. Auth., 436 N.W.2d 221, 224 (N.D.1989). As we noted in Iglehart, at ¶ 17 (quoting Stemberger at 290), “[w]here conditions are known and obvious, they ‘cannot be viewed as pitfalls, traps or snares that would make conditions dangerous for a person exercising ordinary care.’ ”

[¶ 18] Section 343A of the Restatement outlines the general rule:

§ 343 A. Known or Obvious Dangers (1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite . such knowledge or obviousness.

[¶ 19] The comments to § 343A clarify that a landowner rhay nevertheless owe a duty to entrants if the landowner should anticipate that the condition will cause harm notwithstanding the known or obvious nature of the danger:

There are, however, cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. In such cases the possessor is not relieved of the duty of reasonable care which he owes to the invitee for his protection. This duty may require him to warn the invitee, or to take other reasonable steps to protect him, against the known or obvious condition.or activity, if the possessor has reason to expect that the invitee will nevertheless suffer physical harm.
Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that’,the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. Such reason may also arise where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk. In such cases the fact that the danger is known, or is obvious, ... is not ... conclusive in determining the duty of the possessor, or whether he has acted reasonably under the circumstances.

Restatement (Second) of Torts § 343A, Comment f (1965); see also Johanson v. Nash Finch Co., 216 N.W.2d 271, 277 (N.D.1974).

[¶ 20] The trial court in this case determined that the dangerous condition of the elevated gas pump island was “open and obvious” as a matter of law. The disposi-tive issue on appeal is whether the dangerous condition was obvious as a matter of law.

[¶ 21] The determination whether a particular dangerous condition upon land is “obvious” is governed by an objective standard:

“Obvious” means that both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising ordinary perception, intelligence, and judgment.

Restatement (Second) of Torts § 343A, Comment b (1965). The determination of whether a dangerous condition is open and obvious, limiting the landowner’s duty, is generally a question of fact for the trier of fact, and becomes a question of law only when reasonable minds could reach but one conclusion. See, e.g., Johanson, 216 N.W.2d at 277-78; Osontoski v. Wal-Mart Stores, Inc., 143 F.3d 1027, 1028-29 (6th Cir.1998); Wasaya v. United Artist Theatre Circuit, Inc., 205 F.Supp.2d 756, 759 (E.D.Mich.2002); Shows v. Mayfield Oil Co., 743 So.2d 465, 467 (Ala.Civ.App.1999); Moultrie v. Consolidated Stores Int’l Corp., 764 So.2d 637, 639-40 (Fla.Dist.Ct.App.2000); King v. NLSB, 313 Ill.App.3d 963, 246 Ill.Dec. 757, 730 N.E.2d 1222, 1225-26 (2000); Bundy v. Holmquist, 669 N.W.2d 627, 633 (Minn.Ct.App.2003); Tagle v. Jakob, 97 N.Y.2d 165, 737 N.Y.S.2d 331, 763 N.E.2d 107, 110 (2001). The rule is summarized in Buchaklian v. Lake County Family Young Men’s Christian Ass’n, 314 Ill.App.3d 195, 247 Ill.Dec. 541, 732 N.E.2d 596, 602 (2000):

Accordingly, “[t]he issue of whether a condition is obvious is determined by the objective knowledge of a reasonable person, not the plaintiffs subjective knowledge.” Menough v. Woodfield Gardens, 296 Ill.App.3d 244, 248-49, 230 Ill.Dec. 760, 694 N.E.2d 1038 (1998). It is this court’s opinion that summary judgment is not proper when reasonable minds could differ as to whether a condition was open and obvious and that such a determination involves a finding of fact even when a plaintiff admits that he or she could have seen the condition if he or she had looked. We determine in this case that, where plaintiff was an invitee and had to walk over a mat in order to utilize the YMCA pool facilities, and where plaintiff may not have seen a defect in the mat before she tripped, genuine issues of material fact exist as to whether the defect in the mat was an open and obvious danger that plaintiff should have seen. The “obviousness” of a condition or “[w]hether in fact the condition itself served as adequate notice of its presence or whether additional precautions were required to satisfy the defendant’s duty are questions properly left to the trier of fact.” Ward [v. K Mart,] 136 Ill.2d 132, 143 Ill.Dec. 288, 554 N.E.2d 223[, 234 (1990)].

[¶ 22] In reviewing whether a particular dangerous condition is obvious under § 343A, the surrounding circumstances must be considered. As noted by the court in Simmons v. American Drug Stores, Inc., 329 Ill.App.3d 38, 263 Ill.Dec. 286, 768 N.E.2d 46, 51-52 (2002) (citation omitted):

In addressing the obviousness of a condition in the context of premises liability, the term “obvious” means that both the condition and the risk are apparent to and would be appreciated by a reasonable person in the plaintiffs position exercising ordinary perception, intelligence, and judgment. Conditions may exist which, though seemingly innocuous in themselves, indeed present an unreasonable danger under certain circumstances.

Addressing the “obviousness” issue under Restatement § 343A in a case in which a customer walked into a concrete post located just outside the entrance to a store, the court in Ward v. K Mart Corp., 136 Ill.2d 132, 143 Ill.Dec. 288, 554 N.E.2d 223, 232 (1990) (citation omitted), stated:

Turning to the specific facts of the present case, we agree with defendant and the trial court that there is nothing inherently dangerous about the post. It is just an ordinary post. The proper question, however, is not whether the post was inherently dangerous, but whether under the facts of this ease, it was unreasonably dangerous. This question generally cannot be answered by merely viewing the condition in the abstract, wholly apart from the circumstances in which it existed. There may be many conditions on a person’s premises which are in fact dangerous, but not “unreasonably” so for any of a number of reasons. For example, as discussed above, the defendant may have no reason to anticipate that an entrant on his premises will fail to see and appreciate the danger. But there may also be conditions which, though seemingly innocuous enough in themselves, indeed present an unreasonable danger under certain circumstances. For example, it may be said that there is ordinarily no unreasonable danger in an ordinary flight of stairs, but stairs may indeed be unreasonably dangerous if, under the circumstances of a particular case, the defendant in the exercise of reasonable care should anticipate that the plaintiff will fail to see them.

Accordingly, it is not enough, as Bjornson contends, to say that all raised abutments are open and obvious to a person exercising ordinary perception and judgment; the surrounding circumstances must be considered in assessing the obviousness of the dangerous condition.

[¶ 23] In this case, Groleau testified in her deposition that the sun was directly in her eyes as she exited the station, shadows were camouflaging the edge of the island, and the black edge of the island blended in and looked level with the surrounding pavement. Pictures of the area, taken near the same time of day and allegedly depicting the area as it would have appeared at the time' of Groleau’s injury, were also submitted to the court. The trial court relied upon the pictures in determining that the dangerous condition was open and obvious as a matter of law. We have carefully reviewed the photographs and do not find them as decisive as did the trial court. Rather, our review of the photographs, coupled with Groleau’s testimony, leads us to conclude that reasonable minds could draw differing inferences about the obviousness of the dangerous condition of the elevated gas pump island under the circumstances presented in' this case.

[¶ 24] We conclude the trial court erred in determining that the dangerous condition of the elevated gas pump island was open and obvious as a matter of law, and that Bjornson therefore owed no duty to Groleau. Genuine issues of material fact remain which must be resolved by a jury, and the trial court erred in granting summary judgment dismissing Gro-leau’s claims against Bjornson.

V

[¶ 25] We affirm that part of the judgment dismissing Groleau’s claims against Amoco. We reverse that part of the judgment dismissing Groleau’s claims against Bjornson and remand for further proceedings.

[¶ 26] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, and WILLIAM A. NEUMANN, JJ., concur.

MARING, Justice,

concurring in part and dissenting in part.

[¶ 27] I concur in the majority opinion with exception to Part IV, from which I dissent, because I am of the opinion we should abolish the “open and obvious” doctrine and apply our modified comparative fault law. I also dissent from the majority opinion because even if the Restatement (Second) of Torts § 343A (1965) is applied, it does not relieve a possessor of land of a duty to invitees merely because the condition is “obvious.”

[¶ 28] “Landowners owe a general duty to lawful entrants to maintain their property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to another, the seriousness of the injury, and the burden of avoiding the risk.” Doan v. City of Bismarck, 2001 ND 152, ¶ 13, 632 N.W.2d 815. “The existence of a duty is a question of law, unless it depends on facts that must be determined by the fact-finder.” Iglehart v. Iglehart, 2003 ND 154, ¶ 11, 670 N.W.2d 343.

[¶ 29] Our Court has held that assumption of the risk is no longer an affirmative defense, but is one part of the analysis of determining comparative fault. Iglehart, 2003 ND 154, ¶ 17, 670 N.W.2d 343. “[Assumption of the risk] has presented courts with considerable difficulty in defining its theoretical justification and its relationship to tort duty limitations and to the defense of contributory negligence.” Michael K. Steenson, The Role of Primary Assumption of Risk in Civil Litigation in Minnesota, 30 Wm. Mitchell L.Rev. 115, 116 (2003). Professor Michael Steenson points out that assumption of the risk has been applied inconsistently by courts and “[s]ometimes it seems to relate to the duty issue and sometimes it is linked to the defense of contributory negligence, but without a clear differentiation of which issue is involved.” Id.

[¶ 30] The North Dakota Legislature adopted comparative negligence in 1973 and modified comparative fault in 1987. See 1973 N.D. Sess. Laws ch. 78, § 1 (repealed by 1987 N.D. Sess. Laws ch. 404, § 13 as amended by 1993 N.D. Sess. Laws ch. 324, § 1); and 1987 N.D. Sess. Laws ch. 404. Since the adoption of modified comparative fault, neither the Legislature nor our Court has expressly adopted as an accurate statement of our law, Sections 343 and 343A of the Restatement (Second) of Torts. We also have not analyzed the effect of adopting comparative fault on the traditional “open and obvious” danger doctrine.

[¶ 31] “[S]everal jurisdictions have concluded that the adoption of comparative negligence requires abolition of the ‘no duty’ rule providing that a possessor of land owes no duty to warn a person on the premises, such as an invitee or a licensee, of open and obvious dangers. The rationale is that this rule is incompatible with comparative negligence principles, since its effect would be to resurrect contributory negligence, as an absolute bar to recovery in certain cases involving premises liability.” 1 Comparative Negligence Manual (CBC) § 1:15 (3d ed. & Supp.2003). The primary justification for abolishing the “open and obvious” danger doctrine as a “no duty” doctrine is that the adoption of comparative negligence did away with those common law devices which act as absolute bars to recovery. Id. Other jurisdictions have concluded the adoption of comparative negligence does not change the duty owed by a defendant to a plaintiff. Id.

[¶ 82] Before the adoption of comparative negligence and then comparative fault, it did not make any difference whether an obvious danger was viewed as negating a defendant’s duty or whether it constituted contributory negligence or assumption of the risk. The result was the same; the plaintiffs recovery was barred. However, since the adoption of comparative negligence and comparative fault, “it makes a great difference how an obvious danger is viewed. If an obvious danger negates a duty, a defendant cannot be negligent. On the other hand, if a duty is not negated, then the obvious danger is a factor to be considered by the trier of fact in comparing the plaintiffs and defendant’s negligence.” O’Donnell v. City of Casper, 696 P.2d 1278, 1281-82 (Wyo.1985). The Supreme Court of Tennessee in Coin v. City of Savannah, 966 S.W.2d 34, 40 (Tenn.1998), noted that “the open and obvious doctrine was widely criticized for producing arbitrary results and being ‘wrong in policy.’ ... An undeniable legal error is committed every time a court bars recovery to an injured person based solely on the fact that the perilous nature of the alleged cause of harm was ‘apparent to all,’ without any consideration of the multitude of other factors which may justify or excuse the plaintiffs conduct.” Id. at 40-41 (citations and quotations omitted). The Tennessee Supreme Court further noted that these criticisms together with the adoption of comparative fault principles have led “numerous jurisdictions to reconsider the open and obvious rule and to conclude that it should not automatically preclude recovery.” Id. at 41, 41 n. 8 (collecting cases). The Mississippi Supreme Court abolished the “open and obvious” doctrine and applied comparative negligence in Tharp v. Bunge Corp., 641 So.2d 20, 25 (Miss.1994). In doing so, it stated:

This Court should discourage unreasonably dangerous conditions rather than fostering them in their obvious forms. It is anomalous to find that a defendant has a duty to provide reasonably safe premises and at the same time deny a plaintiff recovery from a breach of that same duty. The party in the best position to eliminate a dangerous condition should be burdened with that responsibility. If a dangerous condition is obvious to the plaintiff, then surely it is obvious to the defendant as well. The defendant, accordingly, should alleviate the danger.

Id.

[¶ 33] Therefore, the common law “no duty” rule or “open and obvious” doctrine has endured much criticism from both courts and commentators. I am of the opinion that it is time to abandon the “open and obvious” doctrine as a duty concept and to hold it is simply an aspect of fault for the jury to consider. See Richard L. Ferrell, III, Emerging Trends in Premises Liability Law: Ohio’s Latest Modification Continues to Chip Away at Bedrock Principles, 21 Ohio N.U.L.Rev. 1121, 1123 n. 18 (citing “Harrison v. Taylor, 115 Idaho 588, 768 P.2d 1321, 1324 (1989) (stating that there are no significant differences between the open and obvious danger doctrine and implied assumption of risk); Id. at 1328 (abolishing the open and obvious danger doctrine in favor of an ordinary care under the circumstances test); Carter v. Union R.R., 438 F.2d 208, 212 (3d Cir.1971) (stating that the Federal Employer’s Liability Act, 45 U.S.C. [§ ] 54 (1908), eliminated assumption of risk, and the Restatement (Second) of Torts [§ ] 343A open and obvious danger doctrine would not be strictly applied); ... Woolston v. Wells, 297 Or. 548, 687 P.2d 144, 146-49 (1984) (stating that an open and obvious danger standard would not control in assessing comparative fault); O’Donnell v. City of Casper, 696 P.2d 1278, 1284 (Wyo.1985) (holding that an obvious danger does not negate a duty, but may simply be considered by the jury in assessing plaintiffs contributory negligence); Parker v. Highland Park, Inc.[,] 565 S.W.2d 512, 518-21 (Tex.1978) (stating that the ‘no-duty’ rule/open and obvious danger doctrine was incompatible with the state’s comparative negligence statute, and the doctrine was only relevant to plaintiffs contributory negligence).”); and id. at 1133 n. 84 (citing “Zambito v. Southland Recreation Enterprises, Inc., 383 So.2d 989, 991 (Fla.Dist.Ct.App.1980) (stating that the entrant’s knowledge of the danger would be relevant to his own comparative negligence, but would not be an absolute bar to recovery).”); and Rockweit v. Senecal, 197 Wis.2d 409, 541 N.W.2d 742, 748-49 (1995) (stating that the Wisconsin Supreme Court’s opinions in Pagelsdorf v. Safeco Ins. Co., 91 Wis.2d 734, 284 N.W.2d 55 (1979) and Antoniewicz v. Reszczynski, 70 Wis.2d 836, 236 N.W.2d 1 (1975) abrogated the open and obvious doctrine).

[¶ 34] I am further of the opinion that a landowner’s general duty of reasonable care extends to the risk from an open and obvious condition encountered by an invitee. This approach is consistent with the adoption of comparative fault and the abol-ishment of assumption of the risk as a complete defense and its merger into contributory negligence or fault of the invitee. It is also consistent with a reasonably careful landowner foreseeing that an invitee might fail to see the obvious condition, might be distracted, might encounter it despite knowing of it, or might forget the obvious condition exists. The rationale for comparative fault is to abolish all absolute defenses and to compare fault of the parties involved for all determinations of liability. See Harfield v. Tate, 1999 ND 166, ¶ 12, 598 N.W.2d 840 (stating the doctrine of distracting circumstances is relevant in apportioning fault); Ebach v. Ralston, 510 N.W.2d 604, 610 (N.D.1994) (stating the sudden emergency doctrine is simply to be utilized in determining negligence); and Haff v. Hettich, 1999 ND 94, ¶ 14, 593 N.W.2d 383 (holding comparative fault su-perceded the common law rule imposing liability on the original tortfeasor for aggravation and injury by a physician’s negligence). The “open and obvious” doctrine is in conflict with the comparative fault policy because it permits a landowner to escape liability even if at “fault” for the creation of the obvious dangerous condition.

[¶ 35] Although some states have expressly abolished the open and obvious doctrine after the adoption of comparative negligence, some follow the Restatement (Second) of Torts § 343A. See Coin, 966 S.W.2d at 41-42, 41 nn. 9-10 (collecting cases abrogating the doctrine altogether and those following the Restatement (Second) of Torts § 343A).

[¶ 36] In Johanson v. Nash Finch Co., 216 N.W.2d 271, 277 (N.D.1974), our Court referred to the Restatement (Second) of Torts § 343A on “Known or Obvious Dangers,” as having “a bearing on questions of assumption of risk and contributory negligence.” Section 343A(1) of the Restatement states:

(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.

Restatement (Second) of Torts § 343A. Our Court concluded in Johanson:

The jury in the instant case was told, in effect, that the existence of an obvious danger precluded recovery by the plaintiff. It should have been told that it had the duty to decide whether the defendant should have anticipated harm to invitees despite the obviousness, if any, of the danger.

Johanson, at 277-78. In Johanson, our Court also stated that Comment f under Subsection (1) of the Restatement (Second) of Torts § 343A was particularly relevant because it points out “there are cases in which the possessor of land can and should anticipate that a dangerous condition will cause physical harm to an invitee notwithstanding its obvious nature.” Johanson, at 277. Comment f clarifies that in cases where there is reason to anticipate harm to the invitee and the danger is known or obvious, that knowledge and obviousness are important in determining whether the invitee is negligent or assumed the risk, but they are not “conclusive in determining the duty of the possessor, or whether he has acted reasonably under the circumstances.” Id. (quoting Restatement (Second) of Torts § 343A, cmt. f). Comment f sets out four illustrations. Illustration number 3 is:

3. The A Drug Store has a soda fountain on a platform raised six inches above the floor. The condition is visible and quite obvious. B, a customer, discovers the condition when she ascends the platform and sits down on a stool to buy some ice cream. When she has finished, she forgets the condition, misses her step, falls, and is injured. If it is found that this could reasonably be anticipated by A, A is subject to liability to B.

[¶ 37] In the present case, the negligence claim against Bjornson is based on a premises liability theory. Accordingly, under application of the Restatement (Second) of Torts, the first issue is whether Bjornson owes a duty to Groleau. .Under Section 343A of the Restatement (Second) of Torts, Bjornson does not owe a duty to Groleau if the danger associated with tripping over the raised concrete island was either known or obvious, unless the appel-lee landowner, Bjornson, should have anticipated the harm despite its known or obvious dangers. See Restatement (Second) of Torts 343A(1) (emphasis added). According to the comments to Section 343A of the Restatement (Second) of Torts, “[t]he word ‘known’ denotes not only knowledge of the existence of the condition or activity itself, but also appreciation of the danger it involves. Thus, the condition or activity must not only be known to exist, but it must also be recognized that it is dangerous, and the probability and gravity of the threatened harm must be appreciated.” Restatement (Second) of Torts § 343A, cmt. b. The trier of fact must determine if Groleau knew the raised concrete island existed and appreciated the danger involved. If the danger of tripping over the raised concrete island was not a “known” danger, then the trier of fact must consider whether there was an “obvious” danger. Id. Under Comment b to Section 343A(1) of the Restatement (Second) of Torts, a condition is not “obvious” unless “both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising ordinary perception, intelligence, and judgment.” Id. “The rationale underlying the rule eliminating a duty where the dangers are known or obvious is that ‘no one needs notice of what he knows or reasonably may be expected to know.’ ” Steenson, supra, at 146 (quoting Louis v. Louis, 636 N.W.2d 314, 321-22 (Minn.2001) (quotation omitted)). Whether a condition is “obvious” is an objective standard. However, that does not end the inquiry. It then must be decided whether the landowner should nevertheless have anticipated the harm despite the known or obvious danger. Steen-son, supra, at 146. In Reimer v. City of Crookston, 326 F.3d 957, 965 (8th Cir. 2003), the United States Court of Appeals for the Eighth Circuit concluded it was a jury issue as to whether the case fell within the Restatement (Second) of Torts § 343A “unless” clause.

[¶ 38] I agree and am of the opinion that if fact questions arise concerning the duty, they should be submitted to the trier of fact for resolution. “For example, while foreseeability, a critical determinant of duty, is usually not a jury issue, in close cases a jury may be asked whether a particular risk of injury was foreseeable” or whether the defendant had reason to anticipate that an entrant on his premises would fail to see and appreciate the condition. Steenson, supra, at 162. “Depending on the findings, the trial court decides whether the defendants owed a duty to the plaintiff.” Id. A special verdict form could be used for this purpose. Finally, if the court finds that the landowner owed the invitee a duty, the jury or fact-finder should then be allowed to decide the breach issue and the comparative fault of the landowner and invitee for the invitee’s injuries. See id. at 146. The issue in the present case would be whether Bjornson acted reasonably in painting the raised concrete edge of the island black. Therefore, under Section 343A of the Restatement (Second) of Torts, the duty of the property owner turns on whether the danger is obvious and whether the owner should nonetheless have anticipated the injury. See id. This analysis is based on the duty as it is set forth in Section 343A of the Restatement (Second) of Torts.

[¶ 39] In summary, I would remand this case for the trial court to apply our modified comparative fault law merging the doctrine of “open and obvious” condition into contributory negligence. If the Restatement (Second) of Torts § 343A is to be applied, I would remand for a determination whether Bjornson owes a duty to Groleau and submit to the fact-finder whether Bjornson has breached that duty and, if so, the comparative fault of the parties, and what damages have been proximately caused therefrom.

[¶ 40] Accordingly, I respectfully dissent.

[¶ 41] MARY MUEHLEN MARING.