author: GORDON W. SHUMAKER, Judge.

text:
    Roger STELTER, et al., Appellants, v. CHIQUITA PROCESSED FOODS, L.L.C., et al., Respondents.
    No. C7-02-1302.
    Court of Appeals of Minnesota.
    April 1, 2003.

      Michael A. Zimmer, Tina M. Dobbe-laere, Tewksbury, Kerfeld, Zimmer, Minneapolis, MN, for appellants.
    Scott Ballou, Brownson & Ballou, P.L.L.P., Minneapolis, MN, for respondents.

      Considered and decided by RANDALL, Presiding Judge, SHUMAKER, Judge, and WRIGHT, Judge.
   OPINION

GORDON W. SHUMAKER, Judge.

Appellant was injured in respondent’s factory when he fell into a drainage gutter after a safety grate over the gutter buckled. The evidence showed that respondent had exclusive control over the grate and that the grate could not fall into the gutter if it had been properly set in place. There was no evidence that appellant moved or lifted the grate. The district court refused to instruct on res ipsa loquitur. The jury found neither party negligent. The court denied appellant’s motion for judgment notwithstanding the verdict. Because the court’s failure to give a res ipsa instruction was fundamental error and that the damages award was perverse, we reverse and remand.

FACTS

Appellant Roger Stelter sued respondent Owatonna Canning Co. (now Chiquita Processed Foods) for damages after he fell into a drainage gutter in Chiquita’s factory. At his jury trial, Stelter asked the district court to give a res ipsa loquitur instruction on the issue of negligence. The court refused. The uncontradicted liability facts follow.

There were drain gutters in the floor near the corn-cutting machines in Chiquita’s canning factory. The gutters were covered with steel safety grates that fit into grooves so that they would lay flush with the floor. The grates were designed to support the weight of people walking or standing on them. There is enough room between the edges of the grates and the walls of the gutters to allow the grates to move slightly, but they will not slip off the supporting shoulders if they are properly set in place. The grates are not bolted into place and can readily be lifted off the gutters for cleaning. Only Chiquita employees clean the gutters, and they are responsible for properly replacing the grates when they finish cleaning.

Stelter and Henry Keizer, food inspectors for the state department of agriculture, conducted a surprise inspection of Chiquita’s factory on September 17, 1997. They identified areas that needed correction and returned the next day for a rein-spection. During the reinspection, Chiquita’s quality-assurance manager, James Hermes, accompanied them.

Stelter decided to examine a particular corn cutter. There was a safety grate covering the drain gutter near the machine. Stelter glanced at the grate and “[i]t had the appearance of being okay.” He put the weight of one leg on the grate, and it held up and did not move or wobble. When he placed his full weight on the grate, he stated:

I looked down at the floor to see that there was a grate over the gutter, which I saw there was. I put my foot on the grate, and then I leaned around to look to my left to see if that area had been cleaned up behind the cutter, and when I leaned forward and turned to the left * * * the grate over the top buckled down into the gutter, and then I fell

According to Stelter, the grate slipped down into the gutter at an angle and his foot followed. He injured his leg in the fall.

Neither Kaiser nor Hermes directly saw Stelter’s fall, but they observed events and conditions that followed. Kaiser was five or six feet away and saw some movement in his peripheral vision. When he turned to look in the direction of the movement, he saw that Stelter had one foot in the gutter. When Hermes looked, he noticed that the grate “was tilted on its side partially down in the trough and partially hung up by one of the cross-members on the side.” Hermes testified that if grates are properly put into place they cannot fall into the drain gutter.

Chiquita plant manager Judd Rux also testified that, if grates are properly placed over the gutter, they cannot fall into the gutter. Hermes testified that only one size grate was used in the area and that this grate seemed to properly fit the gutter.

There is no evidence that the grate bent or broke, or that Stelter lifted or removed the grate prior to his fall. Although Stel-ter suggested that the grate might have been too small for the gutter, the testimony was to the contrary.

On these liability facts, the district court refused Stelter’s request for a res ipsa loquitur jury instruction. In its special verdict, the jury found that neither Chiquita nor Stelter had been negligent. The jury also awarded special damages for medical expenses and wage loss, but awarded nothing for past or future pain and disability. The district court denied Stelter’s motion for judgment notwithstanding the verdict.

Stelter assigns as error the district court’s refusal to give the res ipsa loquitur instruction and challenges the jury’s damages award as perverse. Chiquita concedes that the damages award was perverse, but contends that the improper award is of no significance because there was no evidence of Chiquita’s negligence.

ISSUE

When the evidence showed that Chiquita had exclusive control of a safety grate on which appellant was injured; that the grate could have caused the injury only if it had been improperly set in place; and that Stelter did not lift or move the grate before his injury, was it error for the district court to refuse to give a res ipsa loquitur jury instruction?

ANALYSIS

A litigant preserves for review on appeal the district court’s alleged error in failing to give a requested jury instruction if the error is the subject of a motion for judgment notwithstanding the verdict. See Hubenette v. Ostby, 213 Minn. 349, 349-53, 6 N.W.2d 637, 638-39 (1942). The district court’s failure to properly instruct on a specific doctrine of law ordinarily constitutes fundamental error. See Donald v. Moses, 254 Minn. 186, 194, 94 N.W.2d 255, 261 (1959). Even if the court has committed fundamental error, reversal is not required unless the failure to instruct results in prejudice to the requesting party. Lewis v. Equitable Life Assurance Soc’y of the United States, 389 N.W.2d 876, 885 (Minn.1986).

By the conclusion of the case, Stelter had presented evidence to support one of his theories, namely, that, inferentially, Chiquita was negligent for failing to properly place the grate over the gutter. Based on this evidence, he requested the res ipsa loquitur instruction.

“Res ipsa loquitur” translates as “the thing or situation speaks for itself’ and that it is “merely another way of characterizing the minimal kind of circumstantial evidence which is legally sufficient to warrant an inference of negligence.” Olson v. St. Joseph’s Hosp., 281 N.W.2d 704, 708 (Minn.1979) (quoting Hestbeck v. Hennepin County, 297 Minn. 419, 424, 212 N.W.2d 361, 365 (1973)). The purpose of the doctrine is

to assist plaintiff in discharging his obligation to make out a prima facie case of negligence and to aid the jury in performing its fact finding function.

Id.

Res ipsa “rests upon inference and not on presumption.” Johnson v. Coca Cola Bottling Co., 235 Minn. 471, 476, 51 N.W.2d 573, 576 (1952) (citations omitted). It permits an inference of negligence that the fact-finder is not required to adopt. Stahlberg v. Moe, 283 Minn. 78, 83, 166 N.W.2d 340, 344 (1969).

There are three elements of res ipsa loquitur:

Under Minnesota law, a plaintiff must establish three things with regard to the event resulting in his injury before he may submit his claim to the jury on the theory of res ipsa loquitur: (1) The event must be of a kind which ordinarily does not occur in the absence of someone’s negligence; [2] it must be caused by an agency or instrumentality within the exclusive control of the defendant; and [3] it must not have been due to any voluntary action or contribution on the part of the plaintiff.

Warrick v. Giron, 290 N.W.2d 166, 169 (Minn.1980) (citation omitted).

Before a litigant is entitled to a jury instruction on the theory of a claim or defense, there must be evidence to support that theory. Weiby v. Wente, 264 N.W.2d 624, 629 (Minn.1978); see also Lauer v. Loecken, 295 Minn. 345, 347, 204 N.W.2d 817, 818 (1973). Once a plaintiff makes a prima facie case for res ipsa loquitur, the instruction must be given. See Stearns v. Plucinski, 482 N.W.2d 496, 498 (Minn.App.1992), review denied (Minn. Apr. 29, 1992).

Initially, the district court must assess the evidence to determine whether there is sufficient evidence of the three elements. Fleming v. Hallum, 350 N.W.2d 417, 420 (Minn.App.1984). If the evidence is sufficient, the instruction is to be given, and it is then a question for the “jury to find whether or not facts exist that will support the application of the res ipsa loquitur theory.” Olson, 281 N.W.2d at 709.

First Element

The first element of res ipsa loqui-tur requires that the occurrence be of a type that does not ordinarily happen unless someone has been negligent. Stelter’s claim is that a safety grate that is designed to hold a person’s weight does not collapse unless it is the wrong size or has been improperly set in place.

To support the first element, Stelter produced evidence that the grate was designed so that people could stand and walk on it. He testified that the grate buckled when he stood on it. One witness saw Stelter’s foot in the drain gutter. His foot could not have fallen into the gutter unless the grate moved or was moved. Chiquita’s quality-assurance manager saw the grate angled into the gutter. Stelter adduced admissions from Chiquita’s employees that if the grates are properly set in place, they cannot buckle into the gutter. The inference Stelter invites as to the first element is that the grate buckled because of negligent placement, since grates do not buckle absent negligent placement. Stelter produced sufficient evidence to establish pri-ma facie the first element.

Second Element

The second element of res ipsa loquitur is that the instrumentality that caused the injury must have been within the defendant’s exclusive control. Chiquita’s quality-assurance manager testified that the factory’s sanitation workers are responsible for cleaning the gutters and for replacing the grates when they finish. The plant manager testified that only Chiquita employees remove or replace the safety grates in the factory.

Chiquita argues that inspectors, such as Stelter, are permitted to remove grates to inspect gutters and, thus, exclusivity of control is lacking. However, it is uncontroverted that no one saw Stel-ter lift the grate just before his fall, and he testified that he did not touch the grate. Without some evidence that Stelter himself might have removed the grate, a prima facie showing of exclusive control is not negated: “An inference of negligence based on an inferred fact of which there is neither evidence nor predominating probability cannot safely be made.” Collings v. N.W. Hosp., 202 Minn. 139, 144, 277 N.W. 910, 913 (1938) (citations omitted). Furthermore, exclusivity is sufficiently shown if the defendant had control of the instrumentality at the time of the negligent act, even if control might have not been exclusive when the injury occurred. Johnson, 235 Minn. at 478-79, 51 N.W.2d at 577. Prior to the moment of Stelter’s fall, Chiquita employees had exclusive control over the safety grate. Under Stelter’s theory, someone improperly set the grate in place prior to his fall. He produced sufficient prima facie evidence on the second element.

Third Element

The final element of res ipsa loquitur is that the injury must not have been caused by the plaintiff.

Chiquita focuses on Stelter’s previously existing disability in his leg to invite the inference that Stelter’s physical infirmity caused or contributed to his fall. If this were a simple trip or slip-and-fall case, that evidence would likely negate the third res ipsa element, because the doctrine does not apply if causes beyond the exclusive control of the defendant are equally likely to have produced the injury. See Spannaus v. Otolaryngology Clinic, 308 Minn. 334, 337, 242 N.W.2d 594, 596 (1976). But there is no evidence or reasonable inference to be drawn that Stel-ter’s disability caused the grate to buckle. There is no evidence of Stelter’s involvement, other than his testimony that he stood on the grate and it collapsed. Stel-ter has made a prima facie showing that satisfies the third element.

Prejudice

Because Stelter established prima facie all the elements of res ipsa loquitur, he was entitled to a jury instruction on the doctrine. The district court committed fundamental error of law by refusing to give the instruction.

Without the res ipsa instruction, Stelter was deprived of the opportunity to prove Chiquita’s negligence through the inference the doctrine is designed to permit The deprivation was augmented when the court instructed that the mere fact that an accident has occurred does not mean that anyone has been negligent. 4 Minnesota Practice, CTVJIG 25.55 (1999). The latter instruction was not improper. And it would have been proper to give in combination with a res ipsa instruction. Stearns, 482 N.W.2d at 498. But the combined failure to give the res ipsa instruction and the giving of the “mere accident” charge resulted in prejudice to Stelter.

DECISION

The district court’s refusal to give a res ipsa loquitur jury instruction constituted prejudicial fundamental error and Stelter is entitled to a new trial.

Reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the CHILDREN OF Aeropajito VASQUEZ.
    No. C3-02-1684.
    Court of Appeals of Minnesota.
    April 1, 2003.

      Robert J. Lawton, St. Paul, MN, for appellant Aeropajito Castro Vasquez.
    Susan Gaertner, Ramsey County Attorney, Heather McCleery, Assistant Ramsey County Attorney, and Margaret L. Gustaf-son, Baker Court, St. Paul, MN, for respondent Ramsey County Community Human Services Department.
    David Oslund, Minneapolis, MN, for A.C.C., A.U.C., J.S.C., and C.I.C.
    Paul Bergstrom, St. Paul, MN, for guardian ad litem.
    Considered and decided by SHUMAKER, Presiding Judge, RANDALL, Judge, and WRIGHT, Judge.
   OPINION

GORDON W. SHUMAKER, Judge.

This is an appeal from an order for the termination of a father’s parental rights to four children. Sufficient evidence supports the district court’s findings that (1) a case plan for the father would have been futile and therefore unreasonable; (2) the father has abandoned his children; (3) the father has failed to comply with his parental duties; (4) the father is palpably unfit to be a parent; (5) the father is not the adjudicated father of two of the children; and (6) all four of the children are neglected and in foster care. Because the district court’s findings are not erroneous and provide sufficient reasons to terminate the father’s parental rights, we affirm.

FACTS

In July 2000, appellant Aeropajito Vasquez fatally shot his wife. Appellant had a lengthy history of domestic abuse and had threatened to kill his wife on numerous occasions. He was eventually convicted of second-degree murder and is currently incarcerated at Stillwater prison. Appellant will not be eligible for release until 2023, by which time the children will be adults.

After their mother’s murder, the minor children, A.C.C. (born 5/26/90), A.U.C. (born 3/20/91), J.S.C. (born 5/21/92), and C.I.C. (born 9/19/96), lived at the homes of their paternal grandmother or their paternal aunt. All of the children have special needs. According to affidavits and reports in the record, the children were moved between the two homes and were not being well taken care of at either home. For example, they had no consistent routine; A.U.C., who has ADHD, did not receive his medication regularly; they did not receive any counseling; and their aunt did not allow them to attend their mother’s funeral. In addition, appellant’s family threatened any friends or maternal family members who showed an interest in the children’s welfare.

The children’s maternal aunt filed a petition for custody of the children. On December 15, 2000, the Ramsey County Community Human Services Department (the county) placed all of the children in a temporary emergency shelter after it discovered that appellant’s family was planning to move with the children to Mexico before the December 18, 2000, custody hearing. On December 18, 2000, the county filed a petition alleging that the children were in need of protection or services. The court assumed continuing emergency protective care of the children, assigned a guardian ad litem, and ordered the county to place the children in a shelter or foster care. After a hearing on February 9, 2001, the court adjudged the children to be in need of protection or services (CHIPS).

After the CHIPS adjudication, the county provided the court with a case plan in early March 2001 for each child and established for each a primary permanency plan to live with relatives. At that time, the county did not provide a specific case plan for appellant, stating that a ease plan aimed at returning the children to appellant’s day-to-day care would be futile because of his lengthy incarceration in Still-water prison.

While appellant was in prison, he initially maintained telephone contact with his oldest child. The court limited appellant’s contact with his children to written communication after appellant’s telephone conversations became inappropriate and upset his oldest child. Appellant’s letters, however, also contained inappropriate communication.

At the end of March 2001, the county filed a petition to terminate appellant’s parental rights as to all four children. After a hearing on July 15, 2002, the district court terminated appellant’s parental rights. Appellant now challenges the termination of his parental rights.

ISSUES

1. Did the district court commit clear error when it found that the county was not required to provide appellant with a case plan?

2. Did the district court commit clear error by finding that the evidence supported the termination of appellant’s parental rights on six statutory grounds?

ANALYSIS

On review in a termination-of-parental-rights proceeding, this court must determine whether the district court’s findings address the statutory criteria, are supported by substantial evidence, and are not clearly erroneous. In re Welfare of D.D.G., 558 N.W.2d 481, 484 (Minn.1997). Although this court defers to the district court’s findings, this court exercises great caution in proceedings to terminate parental rights. In re Welfare of A.J.C., 556 N.W.2d 616, 622 (Minn.App.1996), review denied (Minn. Mar. 18, 1997).

I

Appellant argues that, in the August 2002 order terminating his parental rights, the district court’s finding that the county was not required to make reasonable efforts to reunite appellant with the children is clearly erroneous on two grounds. First, appellant argues that the county had a continuing duty to provide such reasonable efforts because the district court’s April 2001 written order (which arose out of a February 2001 hearing relating to the CHIPS proceeding) required the county to “submit a case plan for court approval outlining appropriate and available services to be offered to the father and the children” and to address the “conditions that the father must mitigate in order for the children to be in his day-to-day care.” Second, appellant argues that the general provisions of the Juvenile Court Act, MinmStat. ch. 260 (2002), clearly require the district court to determine before the final termination order that the county need not provide appellant with such reasonable efforts.

CHIPS proceeding

After a child has been alleged to be in need of protection or services, the county must provide reasonable efforts to prevent placement and reunite the family. Minn. Stat. § 260.012(a). Reasonable efforts means that the county must exercise due diligence to “use appropriate and available services to meet the needs of the child and the child’s family * * * to eliminate the need for removal and reunite the family.” Minn.Stat. § 260.012(b). In determining whether reasonable efforts were made, “the child’s health and safety must be of paramount concern.” Minn.Stat. § 260.012(a). In certain instances, however, the county need not provide reasonable efforts for “rehabilitation and reunification” if the court determines that

a termination of parental rights petition or other petition according to section 260C.201, subdivision 11, has been filed alleging a prima facie case that the provision of services or further services for the purpose of reunification is futile and therefore unreasonable under the circumstances.

Minn.Stat. § 260.012(a)(3).

After the district court adjudged the children to be in need of protective services, the county implemented individual case plans for each child. The focus of these case plans in the CHIPS proceeding was to provide the children with permanency and a custody change in light of appellant’s lengthy incarceration for murdering his wife, making it impossible to reunite the children with appellant in the foreseeable future. In each child’s case plan, the county stated that efforts to reunify the child with appellant would be futile because of appellant’s lengthy incarceration. Thus, the county focused instead on providing services for the children to address their emotional and physical needs. Because of the clear futility of returning the children to appellant’s day-to-day care, the county was not required to provide appellant with a case plan or services for the purpose of reunification. Termination-of-parental-rights proceeding

The county also determined that it would be in the children’s best interests to terminate appellant’s parental rights. A county caseworker testified that the termination-of-parental-rights petition was filed because of appellant’s lengthy incarceration and his inappropriate conduct.

In termination-of-parental-rights proceedings under section 260C.301, the district court generally must make findings and conclusions as to the reasonable efforts exercised by the responsible social-services agency “to rehabilitate the parent and reunite the family.” Minn.Stat. §§ 260C.301, subd. 8(1), 260.012(c) (2002). In the alternative, the district court may determine that reasonable efforts for “rehabilitation and reunification” are not required in a proceeding to terminate parental rights if the petition to terminate parental rights alleges a prima facie case that the provision of services for the purpose of “reunification” is futile and therefore unreasonable under the circumstances. Minn.Stat. §§ 260C.301, subd. 8(2), 260.012(a)(3), (c). The statute is silent as to when during termination-of-parental-rights proceedings the district court must determine that reasonable efforts would have been futile and therefore unreasonable.

In the order terminating appellant’s parental rights, the district court found that the county was not required to offer appellant a case plan because the termination-of-parental-rights petition states a prima facie case that the provision of services for reunification would be futile and therefore unreasonable. The court found that appellant’s incarceration until the children’s adulthood would make reunification impossible and that the provision of any services for rehabilitation was futile and therefore unreasonable under the circumstances. Although a parent’s incarceration alone is not enough to warrant a termination of parental rights, “the court may also consider that fact with the other evidence offered in support of the petition for termination.” In re Welfare of A.Y.-J., 558 N.W.2d 757, 761 (Minn.App.1997) (citation omitted), review denied (Minn. Apr. 15, 1997). The district court’s order also focused on the children’s best interests. The court determined that, in light of appellant’s lengthy incarceration for murdering the children’s mother, his inappropriate communications with his oldest child, and his conduct while incarcerated, terminating appellant’s parental rights under the current circumstances would provide the best permanency option for all four children.

This court has previously held that the failure to provide a case plan and the county’s lack of effort to reunite a parent with his child, where the incarcerated parent was in prison for battering the child, was “excusable under the circumstances.” In re Welfare of Udstuen, 349 N.W.2d 300, 304 (Minn.App.1984). We hold now that when the futility of reunification efforts is irrefutable, as here where the father will be incarcerated until his children’s adulthood and efforts at rehabilitation would be futile, the county need not provide the parent with a case plan.

II

Appellant also argues that the district court’s findings are insufficient to support termination of his parental rights.

A district court may terminate parental rights only for grave and weighty reasons. In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn.1990). If one or more of nine statutory criteria support termination, the district court may terminate an individual’s parental rights. Minn. Stat. § 260C.301, subd. 1(b). But the district court must make clear and specific findings that “conform to the statutory requirements for termination adjudications.” In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn.1980) (citation omitted).

The purpose of the laws relating to termination of parental rights is to ensure that

(1) when required and appropriate, reasonable efforts have been made by the social services agency to reunite the child with the child’s parents in a home that is safe and permanent; and
(2) if placement with the parents is not reasonably foreseeable, to secure for the child a safe and permanent placement, preferably with adoptive parents or a fit and willing relative through transfer of permanent legal and physical custody to that relative.

Minn.Stat. § 260C.001, subd. 3 (2002). “The paramount consideration in all proceedings for the termination of parental rights is the best interests of the child.” Id. And the child-protection provisions of the statutes shall be liberally construed to carry out the stated purpose. Id., subd. 4 (2002).

In this case, the district court concluded that clear and convincing evidence supported termination of appellant’s parental rights on six statutory grounds: (1) appellant abandoned his children, Minn.Stat. § 260C.301, subd. 1(b)(1); (2) appellant failed to comply with his parental duties, Minn.Stat. § 260C.301, subd. 1(b)(2); (3) appellant is palpably unfit, Minn.Stat. § 260C.301, subd. 1(b)(4); (4) that after the children’s placement out of the home, reasonable efforts, under the court’s direction, have failed to correct the conditions leading to the children’s placement, Minn.Stat. § 260C.301, subd. 1(b)(5); (5) appellant has not registered with the adoption registry, Minn.Stat. § 260C.301, subd. 1(b)(7); and (6) the children were neglected and in foster care, Minn.Stat. § 260C.301, subd. 1(b)(8).

Abandonment

The Juvenile Court Act defines two situations where abandonment is presumed. Minn.Stat. § 260C.301, subd. 2(a). These presumptions do not exist here. But the statute does not preclude the court from finding abandonment in the absence of these presumptions. Id.

Appellant argues that the only finding the court made that would pertain to the statutory provision terminating parental rights for abandonment was that appellant was in prison. See Minn.Stat. § 260C.301, subd. 1(b)(1). Under Minnesota caselaw, imprisonment alone is not sufficient to constitute abandonment. In re Staat, 287 Minn. 501, 506, 178 N.W.2d 709, 713 (1970). But imprisonment combined with other factors, such as parental neglect and withholding parental affection, can support a finding that a parent has abandoned his child. Id.

In this case, appellant has a history of violence and domestic abuse; he murdered his children’s mother; he has been in frequent lock-down in prison for his behavior; he has threatened members of the maternal family; and he continues to have inappropriate communications with his oldest child. The district court made findings regarding appellant’s violent history and current behavior. Accordingly, the court’s findings support the conclusion to terminate appellant’s parental rights for abandonment.

Failure to comply with his parental duties

The district court can terminate parental rights if a parent has substantially, continuously, or repeatedly refused or neglected to comply with the duties imposed on him by the parent-and-child relationship and either reasonable efforts have failed to correct the conditions or reasonable efforts would be futile and unreasonable. Minn.Stat. § 260C.301, subd. 1(b)(2).

The district court found that appellant failed to comply with his parental duties when he murdered his wife (the children’s mother) and then did not allow the children to attend their mother’s funeral. The court found that reasonable efforts would be futile and unreasonable. We agree.

Palpably unfit

Termination of parental rights can occur if a parent is found to be palpably unfit. MinmStat. § 260C.301, subd. 1(b)(4). The district court found that appellant was palpably unfit to parent the children because he will be incarcerated until the children are adults and because he cannot provide care for the children in the reasonably foreseeable future. Appellant argues that the mere fact that appellant is in prison does not mean he is palpably unfit to be a parent and does not warrant termination of his parental rights.

If a parent’s behavior is likely to be detrimental to the children’s physical or mental health or morals, the parent can be found palpably unfit and have his parental rights terminated. In re Welfare of H.M.P.W., 281 N.W.2d 188, 191 (Minn.1979). In this case, the district court made findings relating to appellant’s conduct. The court made extensive findings regarding appellant’s murder conviction, inappropriate communication with his children while in prison, and threats to maternal family members and friends who were interested in the children’s welfare. The record supports the court’s findings and details other reasons why appellant’s conduct has been detrimental to the children’s well-being and sense of permanency. Termination under this statutory factor is appropriate and is supported by the evidence.

Reasonable efforts

Termination can also occur if, after the children’s placement out of the home, reasonable efforts, under the court’s direction, have failed to correct the conditions leading to the children’s placement. MinmStat. § 260C.301, subd. 1(b)(5). The district court found that, because reasonable efforts for reunification would be futile, the county was relieved of its obligation to make such reasonable efforts.

We have already addressed the issue of whether the county was required to provide reasonable efforts for reunification and have concluded that, where the futility of reunification efforts is irrefutable, a case plan is unnecessary. Accordingly, the district court did not err in concluding that termination was appropriate under this statutory provision.

Adoption registry

Parental rights can be terminated if the alleged father was not married to the mother when the children were born and did not subsequently register with an adoption agency. Minn.Stat. § 260C.301, subd. 1(b)(7).

Here, the district court found that appellant had not taken steps to become the legally adjudicated father of the four children. But appellant and the children’s mother married after the birth of her second child. Appellant is therefore the presumed father of the two younger children and the alleged father of the two older children. There is nothing in the record to indicate that he took formal action to become the legally adjudicated father of the older two children or that he registered with an adoption agency as father of the two older children. Accordingly, it appears that the court properly terminated appellant’s rights under subdivision 1(b)(7) as to the two older children, but not as to the two younger children.

Neglected and in foster care

Parental rights can also be terminated if the child is neglected and in foster care. Minn.Stat. § 260C.301, subd. 1(b)(8). Under the general definitions of the child-protection provisions of the Juvenile Court Act as used in chapter 260C,

“[n]eglected and in foster care” means a child
(a) Who has been placed in foster care by court order; and
(b) Whose parents’ circumstances, condition, or conduct are such that the child cannot be returned to them; and
(c) Whose parents, despite the availability of needed rehabilitative services, have failed to make reasonable efforts to adjust their circumstances, condition or conduct, or have willfully failed to meet reasonable expectations with regard to visiting the child or providing financial support for the child.

Minn.Stat. § 260C.007, subd. 24 (2002). The district court shall consider a nonexclusive list of factors to determine whether a child is in neglected and in foster care:

(1) the length of time the child has been in foster care;
(2) the effort the parent has made to adjust circumstances, conduct, or conditions that necessitates the removal of the child to make it in the child’s best interest to be returned to the parent’s home in the foreseeable future, including the use of rehabilitative services offered to the parent;
(3) whether the parent has visited the child within the three months preceding the filing of the petition, unless extreme financial or physical hardship or treatment for mental disability or chemical dependency or other good cause prevented the parent from visiting the child or it was not in the best interests of the child to be visited by the parent;
(4) the maintenance of regular contact or communication with the agency or person temporarily responsible for the child;
(5) the appropriateness and adequacy of services provided or offered to the parent to facilitate a reunion;
(6) whether additional services would be likely to bring about lasting parental adjustment enabling a return of the child to the parent within an ascertainable period of time, whether the services have been offered to the parent, or, if services were not offered, the reasons they were not offered; and
(7) the nature of the efforts made by the responsible social services agency to rehabilitate and reunite the family and whether the efforts were reasonable.

Minn.Stat. § 260C.163, subd. 9 (2002).

The district court made extensive findings on each of these factors. In addressing the factors, the court found that the children had already been in foster care for 19 months; rehabilitative services would have been futile and a return of the children to appellant would not occur in the foreseeable future because of appellant’s incarceration; although there has been no physical visitation, appellant’s telephone and written communications have been inappropriate; appellant’s own conduct in prison caused him to be placed in solitary confinement during the majority of his incarceration, so that his own behavior limited the amount of contact he could have even with the county; the county was relieved of any obligation to provide reunification services; and additional services would not facilitate returning appellant’s children to his daily care.

Appellant again argues that termination is not warranted under this statutory factor because the county failed to provide appellant with reasonable efforts for reunification. Because reasonable efforts for reunification would have been futile and the lack of a case plan for appellant was excusable, termination under this factor is appropriate.

We note that, although the statute requires only one statutory reason to terminate, the district court order to terminate appellant’s parental rights could be affirmed on any one or more of the above statutory grounds.

DECISION

The district court’s finding that the county was not required to provide appellant with a case plan because it would be futile and therefore unreasonable is not erroneous because the futility of reunification efforts is irrefutable. Because the findings are supported by the record and provide solid reasons for terminating appellant’s parental rights, we conclude that the district court did not err.

Affirmed.


author: MARING, Justice.

text:
    2003 ND 38
    Kenneth MURCHISON, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.
    No. 20020273.
    Supreme Court of North Dakota.
    March 5, 2003.

      Kenneth Murchison, pro se, Bismarck, ND, petitioner and appellant.
    Tyrone Jay Turner, Assistant State’s Attorney, Burleigh County Courthouse, Bismarck, ND, for respondent and appel-lee.
   MARING, Justice.

[¶ 1] Kenneth Murchison appeals from the August 29, 2002, summary disposition of his third Application for Post-Conviction Relief. We affirm.

I

[¶ 2] On July 21, 1995, Murchison was convicted of Conspiracy to Deliver a Controlled Substance, a class A felony. On January 11, 1996, the Criminal Judgment was filed sentencing Murchison to 15 years. Murchison appealed from the Criminal Judgment to this Court (“direct appeal”), claiming insufficiency of the evidence. We summarily affirmed the judgment of conviction in State v. Murchison, 562 N.W.2d 104 (N.D.1996).

[¶ 3] While the direct appeal was pending, Murchison moved for appointment of counsel. We directed the matter to the trial court to review whether appointment of counsel was appropriate. On June 26, 1996, the trial court declined to appoint another attorney for Murchison. On July 9, 1996, Murchison appealed from the June 26, 1996, Memorandum Opinion and Order, denying him counsel. Murchison took no further action, and on December 4, 1996, we dismissed Murchison’s appeal from the order denying him counsel for failure to proceed.

[¶4] On November 13, 1996, Murchison filed his first Application for Post-Conviction Hearing. In the application, he claimed that his conviction should be overturned because the trial court lost jurisdiction when it failed to hear his case within 90 days. The trial court entered its Memorandum Opinion and Order on November 27, 1996, and a supplement to that opinion on November 29, 1996, denying Murchison’s post-conviction application. Murchison did not appeal.

[¶ 5] On November 24, 1997, Murchison filed his second Application for Postr-Conviction Hearing. In this application, Murchison argued lack of jurisdiction, failure to disclose favorable evidence, ineffective assistance of counsel, and insufficient audio evidence. Murchison was appointed an attorney, and on February 13, 1998, an Amended Application for Post-Conviction Relief was filed. The amended application included only the claims of lack of jurisdiction and ineffective assistance of counsel. At the March 30,1998, hearing, counsel for Murchison withdrew the post-conviction application. The trial court granted the withdrawal of the post-conviction application without prejudice on April 13, 1998. Another attorney was appointed on May 25, 2000. Apparently, no further action had been taken on Murchison’s post-conviction application since it had been withdrawn, so the trial court judge asked this attorney to review the status of the file. The attorney told the judge that the post-conviction action was decided by the Supreme Court in Murchison v. State, 1998 ND 96, 578 N.W.2d 514. That particular case, however, did not deal with Murchison’s Conspiracy to Deliver charge, but rather, his Delivery of Marijuana charge. Relying on this misinformation, the trial judge filed an Order for Dismissal on May 31, 2001. On June 11, 2001, Murchison appealed, challenging the May 31, 2001, Order for Dismissal. We dismissed this appeal on August 22, 2001.

[¶ 6] The current appeal stems from Murchison’s third Application for Post-Conviction Relief, filed on July 8, 2002. In this application, Murchison presented three claims: (1) he was denied due process because the trial court did not conduct a psychological evaluation prior to sentencing and because the hearing was conducted in open court; (2) he was denied effective assistance of counsel on appeal; and (3) he was denied a fast and speedy trial. On August 29, 2002, the trial court dismissed the application. Murchison appealed on October 1, 2002.

[¶ 7] We conclude that all of the claims contained in Murchison’s third Application for Post-Conviction Relief come within N.D.C.C. § 29-32.1-12. Therefore, the trial court’s dismissal of Murchison’s third post-conviction application was proper.

II

[¶ 8] According to N.D.C.C. § 29-32.1-09(1), a trial court may summarily dismiss an application for post-conviction relief if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. This Court reviews an appeal from a summary denial of post-conviction relief in the same way that it reviews appeals from summary judgment. See Whiteman v. State, 2002 ND 77, ¶ 7, 643 N.W.2d 704. “The party opposing the motion for summary disposition is entitled to all reasonable inferences at the preliminary stages of a post-conviction proceeding and is entitled to an evi-dentiary hearing if a reasonable inference raises a genuine issue of material fact.” Id. (citation omitted). Further, this Court has explained:

If the moving party establishes there is no genuine issue of material fact the burden shifts to the nonmoving party to show a genuine issue of fact exists. The resisting party may not merely rely on pleadings or unsupported conclusory allegations. Rather, the resisting party must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact.

Syvertson v. State, 2000 ND 185, ¶ 13, 620 N.W.2d 362 (citations omitted).

A

[¶ 9] Murchison first contends he was denied due process of law because the trial court did not conduct a psychological evaluation prior to his sentencing and because the hearing was held in open court.

[¶ 10] Section 29-32.1-12(2)(a), N.D.C.C., allows a court to deny a post-conviction application on the grounds of misuse of process when a defendant inexcusably fails to pursue an issue leading to judgment of conviction, inexcusably fails to pursue an issue on appeal having raised the issue in the trial court, or inexcusably fails to raise an issue in an initial post-conviction proceeding. See Hughes v. State, 2002 ND 28, ¶ 11, 639 N.W.2d 696.

[¶ 11] Murchison could have raised this due process argument before, either in his direct appeal or in his first Application for Post-Conviction Hearing. Therefore, under N.D.C.C. § 29-82.1-12(2)(a), Murchison has misused the post-conviction process because he inexcusably failed to raise this claim previously. See Heyen v. State, 2001 ND 126, ¶ 19, 680 N.W.2d 66. He may not raise this issue now. See id.

B

[¶ 12] Murchison next contends he was denied effective assistance of counsel. Specifically, Murchison claims attorney Ross Espeseth “only provided minimal resistance to any and all proposals by the State before the Court,” and attorney Gregory Runge “did refuse to raise the objections and issues of record Pre-Trial and during Trial the Defendent [sic] ask[ed] Him to raise on His initial Appeal.”

[¶ 13] Espeseth was appointed to Murchison’s case on May 27, 1994. He represented Murchison throughout trial and filed the January 19, 1996, Notice of Appeal. Espeseth moved the Court to withdraw from the case on March 5, 1996. The motion was granted on March 6, 1996. Runge entered his Notice of Appearance in this case on March 29, 1996. On June 5, 1996, Murchison moved the Court to assign him an attorney to replace Runge since there were “irreconcilable differences” between them. Apparently, Runge’s representation of Murchison terminated at this point, as Murchison subsequently proceeded pro se in his direct appeal. These two attorneys that Murchison deems “ineffective” were both discharged by Murchison before he filed his first Application for Post-Conviction Hearing on November 13, 1996. Any complaints Murchison may have had with respect to these two attorneys could have been raised in his first Application for Post-Conviction Hearing. Again, because Murchison inexcusably failed to raise this issue in his initial post-conviction application, it is a misuse of process under N.D.C.C. § 29-32.1-12(2)(a) to raise it in a subsequent application. See Silvesan v. State, 1999 ND 62, ¶ 12, 591 N.W.2d 131. He may not raise this issue now. See id.

C

[¶ 14] Finally, Murchison contends he was denied a fast .and speedy trial.

[¶ 15] Section 29-32.1-12(1), N.D.C.C., allows a court to deny a post-conviction application on the grounds of res judicata if the same claims have been fully and finally determined in a previous proceeding. See Hughes, 2002 ND 28, ¶ 8, 639 N.W.2d 696.

[¶ 16] Murchison raised the speedy trial argument in his first Application for Post-Conviction Hearing. When that application was denied by the trial court, Murchison did not appeal. Murchison has had this issue fully and finally determined in a previous proceeding. See Murchison, 1998 ND 96, ¶ 11, 578 N.W.2d 514 (holding that when no appeal was taken from an initial application for post-conviction relief, the claims were fully and finally determined in that previous proceeding). The doctrine of res judicata cannot be avoided when a post-conviction applicant raises contentions which are “simply variations” of previous arguments. See Syvertson, 2000 ND 185, ¶ 16, 620 N.W.2d 362. Murchison may not raise this issue again. See id. [¶ 17] We affirm the trial court’s summary disposition of Murchison’s third Application for Post-Conviction Relief.

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

      . Murchison was convicted in March 1995 for Delivery of Marijuana. In April 1995, Murchison directly appealed the conviction. We affirmed in State v. Murchison, 541 N.W.2d 435 (N.D.1995). Murchison then applied for Post-Conviction Relief on the marijuana charge. The application was denied and Murchison appealed. We affirmed in Murchison v. State, 1998 ND 96, 578 N.W.2d 514, finding that all of the claims had been fully and finally adjudicated in previous proceedings or that the claims should have been raised on direct appeal.


author: SANDSTROM, Justice.

text:
    2003 ND 48
    Shaylee AMYOTTE, a minor child, by and through her parent, Bernice AMYOTTE, Plaintiff and Appellee, v. ROLETTE COUNTY HOUSING AUTHORITY, Defendant and Appellant, and Timothy Shirk, Individually and as Apartment Complex Manager for Rolette County Housing Authority, Defendant.
    No. 20020191.
    Supreme Court of North Dakota.
    March 26, 2003.

      Debra L. Hoffarth, Pringle & Herigstad, P.C., Minot, ND, for plaintiff and appellee.
    Richard H. McGee II, McGee, Hankla, Backes & Dobrovolny, Minot, ND, for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] The Rolette County Housing Authority (“Housing Authority”) appealed from a judgment awarding damages to Shaylee Amyotte (“Amyotte”) for injuries she incurred when she was clawed by a cat on rental property owned by the Housing Authority. We hold the trial court did not correctly instruct the jury on the landlord’s duty to the plaintiff in this case, and the evidence, as a matter of law, does not establish the Housing Authority was negligent or breached a duty to Amyotte. We therefore reverse and remand for entry of judgment in favor of the Housing Authority-

I

[¶2] Amyotte, a minor child, and her mother, Bernice Amyotte, are tenants at a housing complex in Rolette owned and managed by the Housing Authority. On July 14, 1999, Amyotte was attacked and injured by a cat while playing outside an apartment complex owned by the Housing Authority. Earlier that day, a tenant informed the apartment manager the cat was in one of the building hallways. The manager removed the cat from the building and placed it outside. The cat injured Amyotte after it was provoked by other children. The incident occurred on Housing Authority property located several blocks from the complex where the manager had removed the cat that day.

[¶ 3] Amyotte, by and through her mother, sued the Housing Authority for damages caused by the incident. At trial, Amyotte argued the Housing Authority violated its “no pets” policy by allowing the cat to be on the premises and also argued the Housing Authority was negligent in failing to maintain safe premises for its tenants. The Housing Authority argued it was not negligent in failing to remove the cat from the premises, because it had no reason to know, prior to the cat’s attack upon Amyotte, that the cat was dangerous or presented a potential threat of harm to anyone. The jury returned a verdict awarding Amyotte damages of $7,404.64, and judgment was entered for her in accordance with the jury verdict.

[¶ 4] The trial court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.

II

A

[¶ 5] On appeal, the Housing Authority contends the trial court erred in not correctly instructing the jury about a landlord’s duty to third persons for injuries caused by an animal on the landlord’s premises. Jury instructions must fairly inform the jury of the applicable law. Gowin v. Trangsrud, 1997 ND 226, ¶ 9, 571 N.W.2d 824. On appeal, we review whether, as a whole, the jury instructions fairly and adequately advised the jury. Id. While a trial court may properly refuse a requested instruction not applicable to the evidence, a party is entitled to an instruction on a valid applicable theory if there is some evidence to support it. Id.

[¶ 6] During the trial, the Housing Authority requested the court to instruct the jury that the Housing Authority could be held liable only if it knew the cat that injured Amyotte was a dangerous and vicious animal and either willfully permitted the cat to run at large or failed to exercise ordinary care to keep the cat confined so that it would not injure someone. The trial court refused to give the requested or similar instructions to the jury. Instead, the trial court gave an instruction on ordinary negligence and instructed the jury that an owner or lessor of premises “must act as a reasonable person in maintaining the premises in a reasonable, safe condition in view of all the circumstances.”

[¶ 7] Whether a defendant owes a plaintiff a duty of care is a preliminary question of law for the court to determine, but if the existence of a duty depends on resolving factual issues, the trier of fact must ascertain the facts. Doan v. City of Bismarck, 2001 ND 152, ¶ 25, 632 N.W.2d 815.

[¶ 8] In Twogood v. Wentz, 2001 ND 167, ¶ 2, 634 N.W.2d 514, the plaintiff sued a landlord for injuries she sustained when she was bitten on the leg by a tenant’s dog while the plaintiff was on the leased premises performing her duties as a utilities meter reader. This Court first explained the general requirements for the plaintiff to prove her negligence claim:

To establish her cause of action for negligence, Twogood must show the landlords had a duty to protect her from injury. See Rogstad v. Dakota Gasification Co., 2001 ND 54, ¶ 12, 623 N.W.2d 382. “We have stated negligence consists of a duty on the part of an allegedly negligent party to protect the plaintiff from injury, a failure to discharge the duty, and a resulting injury proximately caused by the breach of the duty.” Id. If a duty on the part of the landlords does not exist, neither does negligence.

Id. at ¶ 12. In Twogood, this Court, for the first time, dealt with the issue of a landlord’s liability to a third person for injury caused by a tenant’s dog, and concluded:

[T]he general rule is that a landlord is not liable to a third person for an attack by a tenant’s dog unless the landlord had control of the premises and knowledge of the vicious propensities of the dog. [The defendants] have denied both control and knowledge, and the record is devoid of any facts to the contrary. Applying the rule to the facts in this case, the trial court correctly determined the landlords owed no duty to Twogood.

Id. at ¶ 20 (citations omitted). The rule this Court adopted in Twogood comports with the general rule that knowledge of an animal’s presence and dangerous tendencies are a prerequisite to landlord liability. Danny R. Veilleux, Annotation, Landlord’s Liability to Third Person for Injury Resulting from Attack on Leased Premises by Dangerous or Vicious Animal Kept by Tenant, 87 A.L.R.4th 1004, 1012 § 2[a] (1991). The general rule regarding an owner’s liability for injury caused by an animal not normally dangerous, such as a cat, is summarized by Cheryl M. Bailey, Annotation, Liability for Injuries Caused by Cat, 68 A.L.R.4th 823, 829 § 2[a] (1989):

Under the common law, the owner or keeper of a domesticated animal which is not naturally dangerous, such as a cat, is subject to liability for harm caused by the animal only if he knows or has reason to know that the particular animal is abnormally dangerous.... If, therefore, a cat of a peaceable disposition suddenly and unexpectedly inflicts an injury, its owner or keeper is not liable under the common law to the person injured, assuming that the owner or keeper was exercising due care at the time of the incident.

[¶ 9] We conclude the jury instructions did not fairly inform the jury of the applicable law in this case. The court correctly instructed the jury that an owner or lessor of premises must act as a reasonable person in maintaining the premises in a safe condition. N.D.C.C. § 47-16-13.1(1). However, the court erred in refusing to additionally instruct the jury, in accordance with the law set forth in the Twogood decision, that a landlord cannot be held liable for injuries sustained by a person on its premises as a result of an animal attack unless the landlord had knowledge of, or reason to know, the dangerous or vicious propensities of the animal. Because the trial court’s error in not properly instructing the jury affected the substantial rights of the parties, the error warrants a reversal of the judgment. Gowin v. Trangsrud, 1997 ND 226, ¶ 9, 571 N.W.2d 824.

B

[¶ 10] The leases entered between the Housing Authority and its tenants contained a “no pets” clause prohibiting the tenants from keeping animals on the premises. Amyotte asserts the no-pet clauses in the tenant contracts imposed a duty upon the Housing Authority, toward other tenants and third parties, to keep all animals off the premises. Amyotte contends that under these circumstances, the general rule that a landlord can be held liable for injuries caused by an animal on the premises only' if the landlord knew or had reason to know of the animal’s dangerous propensities does not apply in this case.

[¶ 11] Although a no-pets clause in a lease gives the landlord some control for removing animals from the premises, a duty to protect others from harm by an animal on the premises arises only when the landlord knows that the animal is dangerous and presents an unreasonable risk of harm. See Matthews v. Amberwood, 351 Md. 544, 719 A.2d 119, 131 (1998); see also Braun v. York Properties, Inc., 230 Mich.App. 138, 583 N.W.2d 503, 508 (1998) (pet-size restrictions in lease did not impose duty upon landlord to protect others from harm caused by pet exceeding the size restrictions); Carter v. Metro North Associates, 255 A.D.2d 251, 680 N.Y.S.2d 239, 241 (1998) (landlord’s failure to exercise “no pets” clause in lease not proximate cause of injury inflicted by tenant’s pet on the premises).

[¶ 12] Amyotte relies upon the decision of the Alaska Supreme Court in Alaskan Village, Inc. v. Smalley, 720 P.2d 945, 948 (Alaska 1986). The facts in that case are distinguishable from the facts here, and render its conclusion inapplicable. In Smalley, the owner of a mobile home park was sued for damages when a six-year-old child was mauled and severely injured by a tenant’s pit bull after it escaped from its pen in the tenant’s yard and attacked the child. The mobile park lease agreement included a clause that prohibited tenants from keeping “vicious dogs” on the premises. The Alaska Supreme Court concluded the clause in the lease existed to benefit not only the landlord but also the safety of other residents in the trailer park. The court noted that the manager of the trailer park had admitted the purpose of the rule was to protect other tenants, and it held the landlord had a duty to exercise reasonable care to enforce its rules and regulations when there was ample evidence it had actual knowledge of prior incidents of vieiousness exhibited by the offending pit bull and it was clearly foreseeable the animal might harm someone. Unlike the lease agreements in Smalley, which contained a “no vicious dogs” clause, the Housing Authority’s leases here contained only a general no-pets clause. There was no evidence the clause was intended to benefit third parties from the dangers of an animal attack.

[¶ 13] The decision in Amberwood, 719 A.2d at 125-132, involved a no-pets clause in a lease similar to the one involved in this case. The Maryland Court of Appeals concluded such a clause does not, in itself, impose upon a landlord a duty to prevent harm by animals to others:

The tenant Morton did not have exclusive control over the leased premises because the lease gave the landlord a degree of control. The landlord retained control over the presence of a dog in the leased premises by virtue of the “no pets” clause in the lease. The lease plainly stated that breach of the “no pets” clause was a “default of the lease.”
We do not hold that a landlord’s retention in the lease of some control over particular matters in the leased premises is, standing alone, a sufficient basis to impose a duty upon the landlord which is owed to a guest on the premises.
Under the present circumstances, however, where a landlord retained control over the matter of animals in the tenant’s apartment, coupled with the knowledge of past vicious behavior by the animal, the extremely dangerous nature of pit bull dogs, and the foreseeability of harm to persons and property in the apartment complex, the jury was justified in finding that the landlord had a duty to the plaintiffs and that the duty was breached.

[¶ 14] There is no evidence in this case suggesting that the no-pet clauses in the leases were intended to protect any persons from harm by animals on the premises. Furthermore, there is no evidence to establish that any tenant violated the no-pets clause. The parties refer to the cat that injured Amyotte as a “stray,” and the evidence does not establish ownership of the cat. Under these circumstances, we conclude the no-pet clauses in the lease agreements did not impose a duty upon the Housing Authority to protect Amyotte or others from animals on the premises. The presence of the “no-pets” clause in the leases did not vitiate the general rule that a landlord cannot be held liable for injury caused by animals on the leased premises unless the landlord knew or had reason to know of the animal’s dangerous propensities.

Ill

[¶ 15] At the close of the plaintiffs case, and again after entry of judgment in favor of the plaintiff, the Housing Authority moved for and was denied judgment as a matter of law under N.D.R.Civ.P. 50. On appeal, the Housing Authority contends there is insufficient evidence to support the verdict and consequently the court erred in denying the Rule 50 motion for judgment as a matter of law. Rule 50(a)(1), N.D.R.Civ.P., provides:

(a) Judgment as a Matter of Law.
(1) If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim, or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.

In Symington v. Mayo, 1999 ND 48, ¶ 4, 590 N.W.2d 450, we explained the standards for deciding a motion brought under N.D.R.Civ.P. 50, and for reviewing on appeal the trial court’s decision:

The trial court’s decision on a motion brought under N.D.R.Civ.P. 50 to deny or grant judgment as a matter of law is based upon whether the evidence, when viewed in the light most favorable to the party against whom the motion is made, leads to but one conclusion as to the verdict about which there can be no reasonable difference of opinion. In considering this motion, the trial court must apply a rigorous standard with a view toward preserving a jury verdict, and so must we in our review on appeal. In determining if the evidence is sufficient to create an issue of fact, the trial court must view the evidence in the light most favorable to the non-moving party, and must accept the truth of the evidence presented by the non-moving party and the truth of all reasonable infer-enees from that evidence which support the verdict. The trial court’s decision on a motion for judgment as a matter of law is fully reviewable on appeal.

(Citations omitted.) In reviewing a district court ruling on a motion for judgment as a matter of law, we examine the sufficiency of the evidence by viewing the evidence supporting the jury verdict as the truth. Perry v. Reinke, 1997 ND 213, ¶ 13, 570 N.W.2d 224. This Court then applies the standard for a Rule 50 judgment as a matter of law, which is whether the evidence favoring the verdict is so insufficient, reasonable minds could reach only one conclusion as to the verdict. Id.

[¶ 16] There is no record evidence suggesting the Housing Authority knew or had reason to know that the cat which injured Amyotte was dangerous or had vicious propensities. There is no evidence the cat had ever attacked anyone previously. To the contrary, the undisputed evidence establishes that many children played with the cat, often in a rough manner, but prior to the cat turning upon and injuring Amyotte, the cat had never attacked or injured a child or other person and had never displayed a proclivity for hostility or for causing harm to anyone. An issue of fact becomes a question of law if reasonable persons could reach only one conclusion from the evidence. Sternberger v. City of Williston, 556 N.W.2d 288, 290 (N.D.1996). On the entire evidence in this case, we conclude, as a matter of law, the Housing Authority did not have knowledge or reason to know the cat that injured Amyotte was dangerous or had vicious propensities. Consequently, we conclude Amyotte failed to prove the Housing Authority owed her a duty to protect her from harm from the cat. We hold, therefore, the trial court erred in denying the Housing Authority’s motion for judgment, “f as a matter of law, under Rule 50.

IV

[¶ 17] Amyotte filed a motion requesting attorney fees on appeal, under N.D.C.C. § 47-16-13.6, authorizing the court to award reasonable attorney fees to the prevailing party who sues a landlord for, among other things, not maintaining safe premises as required under N.D.C.C. § 47-16-13.1(c). In view of our reversal of the jury verdict, we conclude Amyotte is not entitled to attorney fees on appeal.

V

[¶ 18] We hold the trial court failed to properly instruct the jury on the law, and we further hold the evidence is insufficient, as a matter of law, to establish the Housing Authority owed a duty to Amyotte that was breached in this case. We therefore reverse the judgment and remand for entry of judgment in favor of the Housing Authority.

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


author: KAPSNER, Justice.

text:
    2003 ND 43
    AMERICAN NATIONAL FIRE INSURANCE COMPANY as subrogee of United Crane & Excavation, Plaintiff and Appellant, v. Gary HUGHES, Defendant and Appellee.
    No. 20020207.
    Supreme Court of North Dakota.
    March 26, 2003.

      Brian T. Suth (argued), Ellison, Nielsen, Knibbs, Zehe & Antas, P.C., Chicago, IL, and Eric G. Olsen (appeared), Jeffries, Olson & Flom, PA Moorhead, MN, for plaintiff and appellant.
    Steven L. Marquart, Cahill & Marquart, Moorhead, MN, for defendant and appel-lee.
   KAPSNER, Justice.

[¶ 1] American National Fire Insurance Company, as subrogee of United Crane & Excavation, appeals from a summary judgment dismissing its subrogation action against Gary Hughes. We hold American National is not entitled to subro-gation from Hughes because for purposes of subrogation he was not a third party but an implied co-insured under American National’s insurance policy with United Crane. We affirm.

I

[¶ 2] United Crane was a closely held corporation engaged in demolition work, bridge construction, and installation of underground water and sewer lines. Hughes’ parents owned all the stock of United Crane, and he was an employee and officer of United Crane, acting as its director and vice president. American National insured United Crane under a “BUSINESSPRO” mono line property policy that designated United Crane as the insured and provided coverage for physical damage to its scheduled vehicles and equipment. The policy did not provide liability coverage for the scheduled property and did not explicitly designate United Crane’s owners, officers, or employees as insureds.

[¶ 8] During nonbusiness hours on Saturday, January 13, 2001, Hughes was using United Crane’s tools at its shop to do mechanical work on his personal snowmobile. Hughes’ snowmobile was not used for United Crane’s business and was not listed as scheduled property under American National’s policy with United Crane. Hughes was using a shop vac to remove gasoline from his snowmobile’s gas tank when a spark ignited the gasoline and caused a fire that damaged vehicles and equipment insured under American National’s policy with United Crane. American National paid United Crane more than $250,000 for damage to property covered under the policy.

[¶ 4] American National thereafter brought this subrogation action against Hughes, alleging his negligence caused the damage to United Crane’s property. The trial court granted Hughes summary judgment dismissal of American National’s subrogation action against him, concluding he was an additional insured under American National’s policy with United Crane. American National appealed.

II

[¶ 5] We review this appeal in the posture of summary judgment, which is a procedure for resolving a controversy on the merits without a trial if the evidence establishes there are no genuine issues of material fact, or inferences to be drawn from undisputed facts, and if the evidence shows a party is entitled to judgment as a matter of law. Bender v. Aviko USA L.L.C., 2002 ND 13, ¶ 4, 638 N.W.2d 545. If the law is such that resolution of any factual disputes will not alter the result, the disputed facts are not material and summary judgment is appropriate. Rich mond v. Nodland, 552 N.W.2d 586, 588 (N.D.1996).

Ill

[¶ 6] American National argues the trial court erred in deciding Hughes was an additional insured under its insurance policy with United Crane, because Hughes was not acting within the scope of his employment for United Crane when the fire occurred. American National argues there is a factual dispute about whether Hughes was acting within the scope of his employment when the fire occurred. American National argues the court erred in relying on a factually distinguishable out-of-state case, see Fireman’s Ins. Co. v. Wheeler, 165 A.D.2d 141, 566 N.Y.S.2d 692 (N.Y.App.Div.1991), while ignoring established North Dakota law on respondeat superior. See Zimprich v. Broekel, 519 N.W.2d 588 (N.D.1994). American National argues the rule precluding subrogation from landlord-tenant cases is not applicable to this case, and asserts equitable principles support its subrogation claim against Hughes.

[¶7] Under the doctrine of re-spondeat superior, an employer is vicariously liable for the negligence of its employees while the employees are acting within the scope of their employment. Nelson v. Gillette, 1997 ND 205, ¶ 10, 571 N.W.2d 382; Zimprich, 519 N.W.2d at 590-91. The underlying rationale for the doctrine is the employer’s right to control its employee’s conduct, and the employer’s vicarious liability extends only to an employee’s acts done on the employer’s behalf and within the scope of the employee’s employment. Zimprich, at 591. In Zimp-rich, at 589, a Kenworth tractor owner leased his tractor to a common carrier, who provided loads for the owner to transport. This Court concluded the owner was performing his independent contractual duty to repair his tractor when a fire occurred, and the owner was not an employee of the common carrier acting within the scope of employment. Id. at 592-93. We further concluded the common carrier was not vicariously hable for the tractor owner’s negligence because the common carrier was not exercising control over the owner’s work. Id. at 593-94. However, Zimprich did not involve a subrogation claim and does not necessarily control whether American National is entitled to subrogation from Hughes.

[¶ 8] Subrogation is an equitable remedy which provides for an adjustment between parties to secure the ultimate discharge of a debt by the person who, in equity and good conscience, ought to pay for it. St. Paul Fire & Marine Ins. Co. v. Amerada Hess Corp., 275 N.W.2d 304, 308 (N.D.1979); State Farm Mut. Auto. Ins. Co. v. Wee, 196 N.W.2d 54, 59-60 (N.D.1971). Generally, when an insurer pays its insured for a loss, the insurer is subrogated to the insured’s right of action against any third party responsible for the loss. Continental Ins. Co. v. Bottomly, 250 Mont. 66, 817 P.2d 1162, 1164 (1991); Reeder v. Reeder, 217 Neb. 120, 348 N.W.2d 832, 836 (1984); Pennsylvania Gen. Ins. v. Austin Powder, 68 N.Y.2d 465, 510 N.Y.S.2d 67, 502 N.E.2d 982, 985 (1986); Wheeler, 566 N.Y.S.2d at 693. See generally 6A Appleman, Insurance Law and Practice § 4051 (1972); 16 Lee R. Russ and Thomas F. Segalla, Couch on Insurance §§ 222:5 and 223:1 (3rd ed.2000). However, an insurer is not entitled to subrogation from its own insured for a claim arising from the very risk for which the insured was covered. Bottomly, at 1164; Reeder, at 836; Austin Powder, at 985; Wheeler, at 693. See Uren v. Dakota Dust-Tex, Inc., 2002 ND 81, ¶¶ 6, 13, 643 N.W.2d 678; Community Credit Union v. Homelvig, 487 N.W.2d 602, 603, 605 (N.D.1992). See generally 6A Appleman, at ¶ 4055; 16 Couch, at §§ 224:1 and 224:3. An insurer is not entitled to subro-gation from entities named as insureds in the insurance policy, or entities deemed to be additional insureds under the policy. See Bottomly, at 1164; Reeder, at 886; Wheeler, at 693; Uren, at ¶ 6; Homelvig, at 603. See generally 6A Appleman, at § 4055; 16 Couch, at § 224:12. An entity not named as an insured in an insurance policy is considered an additional insured when, under the circumstances, the insurer is attempting to recover from the insured on the risk the insurer had agreed to take upon payment of premiums. See Bottomly, at 1164; Reeder, at 836; Wheeler, at 693; Uren, at ¶ 6; Homelvig, at 603. See generally 6A Appleman, at § 4055. The rule precluding an insurer’s subrogation claim against a co-insured generally applies absent fraud or design by the co-insured. See Sherwood Med. Co. v. B.P.S. Guard Servs., Inc., 882 S.W.2d 160, 162 (Mo.Ct.App.1994); State Farm Fire & Cas. Co. v. Sentry Indem. Co., 316 So.2d 185, 188 (La.Ct.App.1975). See generally 16 Couch, at § 224:10.

[¶ 9] In Homelvig, 487 N.W.2d at 605, this Court held that absent an express agreement to the contrary, a tenant was an implied co-insured under the insurer’s policy with the landlord, and the insurer was not entitled to subrogation from the tenant. See also Uren, 2002 ND 81, ¶ 13, 643 N.W.2d 678 (holding Homelvig applies where lease contains no express agreement indicating tenant should not be considered an implied co-insured under landlord’s property insurance policy). In Homelvig, at 603-04 (quoting 6A Appleman, at § 4055), this Court said the primary rationale for concluding a landlord and tenant were co-insureds was their “ ‘insurable interests in the property, and the commercial realities under which lessors insure leased premises and pass on the premium cost in rent.’” See also Uren, at ¶ 27.

[¶ 10] Other courts have rejected sub-rogation claims in cases involving other relationships between the insured and a third party. See Bottomly, 817 P.2d at 1165; Reeder, 348 N.W.2d at 837; Wheeler, 566 N.Y.S.2d at 693. In Bottomly, at 1163-65, the court held a named insured’s brother and nephew were additional insureds under a policy insuring a seasonal cabin used for recreational purposes by the insured’s family. In Reeder, at 835-37, the court held the named insured’s brother and niece were additional insureds while temporarily occupying the insured’s house as a guest during construction of the brother’s new house. In Bottomly, at 1165, and Reeder, at 836, the courts concluded the relationship between the named insured and a third-party tortfeasor was such that allowing subrogation would permit the insurer to sue its insured on the very risk the insurer had agreed to take upon payment of premiums.

[¶ 11] In Wheeler, 566 N.Y.S.2d at 693-95, the Appellate Division of the New York Supreme Court rejected an insurer’s sub-rogation claim against the president and principal shareholder of the named insured, a closely held corporation that had incurred a fire loss and submitted a claim under a comprehensive business insurance policy. In Wheeler, at 693, the president and principal shareholder was an additional insured under the property portion of the insurance policy for up to $2,500 for fire loss for his personal effects at the insured premises, and he was a named insured on the automobile liability part of the policy. The comprehensive general liability part of the policy extended coverage as an additional insured to any corporate executive officer acting within the scope of that person’s duties for injury to a person or to property not owned by the corporation. Id. The insurer paid the closely held corporation’s claim for a fire loss, and the corporation, through its president, executed a receipt subrogating the insurer to the corporation’s right to recover from any third party and requiring the corporation to cooperate with the insurer. Id. The insurer then brought a subrogation action against the corporation’s president and principal shareholder, alleging his negligence caused the fire. Id.

[¶ 12] The court held equitable principles and public policy precluded the insurer from obtaining subrogation from the president and principal shareholder of the insured. Wheeler, 566 N.Y.S.2d at 693. The court explained it would be inequitable to permit an insurer to pass the incidence of loss from itself to its own insured and avoid the coverage which its insured had purchased. Id. at 693-94. The court said the insurer was presumed to know the closely held corporation’s relationship with its president and principal shareholder, and having agreed to insure a business enterprise in corporate form, the insurer was charged with knowledge that the insured entity could act only through its officers and employees. Id. at 694. The court said “[i]f subrogation against a corporate insured is ever to be barred under the doctrine that an insurer completely assumes the risk of a fire loss due to the negligence of the insured, at the very least the risk assumed must extend to the negligence of a corporate officer.” Id. (emphasis in original).

[¶ 13] The court also explained that subrogation was precluded by the public policy for averting potential conflicts of interest. Wheeler, 566 N.Y.S.2d at 694-95. The court recognized the insurance policy required the insured to subrogate any claim for loss the insured might have against another person, to submit to examination under oath, to furnish a sworn statement of loss, and to do what was necessary to secure the insurer’s right to recovery by subrogation. Id. The court said the corporation acted through its president, who was required to disclose the circumstances of the loss to the insurer, and if the president failed to provide necessary information to the insurer, the corporation would forfeit its rights under the policy. Id. at 695. The court said:

[Defendant, as the principal officer of the named insured corporation and with which he presumably is fully united in economic interest, has been placed in the dilemma of having to furnish the necessary information and to fully cooperate in plaintiffs efforts to recover the loss from him personally or forfeit his corporation’s policy right to indemnity for the loss. We conclude that the compromise of the integrity of the insurer’s relationship with its insured and the potential conflict of interest inherent in this dilemma forced upon defendant by plaintiff require denial of plaintiffs right of subrogation here.

Id.

[¶ 14] The relationship between United Crane and Hughes is not identical to the relationship between the corporation and its president and principal shareholder in Wheeler. Moreover, the Wheeler decision does not state whether the alleged negligence by the corporation’s president and principal shareholder occurred within the scope of his employment, and there is a dearth of authority regarding the effect of corporate acts within or outside the scope of employment on a claim for subro-gation. We conclude, however, the rationale of Wheeler precludes subrogation in a case where United Crane permitted Hughes and its corporate officers and owners to use its shop for work on their snowmobiles.

[¶ 15] American National’s policy designated United Crane as the insured and did not name Hughes, or any other individuals associated with United Crane, as additional insureds. American National’s policy included a “CONTRACTOR’S EQUIPMENT SCHEDULED COVERAGE FORM,” which provided coverage for “ ‘loss’ to Covered Property from any of the Covered Causes of Loss.” The policy defined “Covered Causes of Loss” to mean “Risks of Direct Physical ‘Loss’ to the Covered Property except those causes of ‘loss’ listed in the Exclusions.” The policy excluded coverage for losses caused by governmental action, nuclear hazard, and war and military action. The policy also explicitly excluded coverage for losses resulting from dishonest acts by United Crane’s employees or authorized representatives whether or not the acts occurred during the hours of employment. However, the policy did not exclude coverage for losses resulting from acts outside the scope of employment of an officer, owner, or employee of United Crane.

[¶ 16] A corporation is an artificial entity which can act only through its agents. United Accounts, Inc. v. Teladvantage, Inc., 499 N.W.2d 115, 117 n. 1 (N.D.1993); Dewey v. Lutz, 462 N.W.2d 435, 443 (N.D.1990). See Wheeler, 566 N.Y.S.2d at 694. Although Hughes did not own any stock in United Crane, American National agreed to insure United Crane in its corporate form and is charged with knowledge that United Crane could act only through its officers and employees. See Wheeler, at 694. Hughes was the vice president of United Crane. He supervised his own crew of workers for United Crane, and he hired and fired the members of his crew. Hughes’ brother was president of United Crane, and his parents owned all of the outstanding stock in the closely held corporation. Although Hughes may not have been explicitly acting within the scope of his employment with United Crane when the fire occurred, American National does not dispute that Hughes, his brother, and his father all worked on their snowmobiles at United Crane’s shop. American National also does not dispute that Hughes worked on his snowmobile at United Crane’s shop during business hours the week before the fire. According to Hughes, he also stored his snowmobile at United Crane’s shop.

[¶ 17] Hughes’ alleged negligence may not have been within the scope of his employment, and for purposes of summary judgment, we assume, without deciding, that he was acting outside the scope of his employment. However, the resolution of that factual issue will not alter the result in this case, because United Crane undis-putedly permitted its corporate owners and officers to use its shop to work on their snowmobiles during business and nonbusiness hours. American National insured United Crane for property damage to scheduled vehicles and equipment, which included a risk of loss for negligence by United Crane’s corporate officers and employees. Under these circumstances and in the absence of a claim of fraud or a provision specifically excluding coverage for acts by officers or employees outside the scope of their employment, the relationship between United Crane and Hughes is such that allowing subrogation against Hughes for his alleged negligence would permit American National to sue its insured for the very risk that American National insured and for which it received premiums. We conclude that result would be inequitable.

[¶ 18] We also conclude the public policy for averting potential conflicts of interest applies to this case. See Wheeler, 566 N.Y.S.2d at 694-95. American National’s insurance policy required United Crane to transfer to American National the right to recover damages from another to the extent of American National’s payments to United Crane. The policy required United Crane to do everything necessary to secure American National’s rights and precluded United Crane from doing anything to impair those rights. The policy required United Crane to submit to examination under oath about any matter relating to a claim and to cooperate in the investigation and the settlement of a claim. Under American National’s policy, coverage was void in the case of misrepresentation of a material fact on a claim. Hughes was placed in the dilemma of furnishing necessary information and fully cooperating with American National’s efforts to recover the loss from him personally, or forfeit United Crane’s right to coverage for the loss. Wheeler, 566 N.Y.S.2d at 695. We agree with the public policy rationale in Wheeler that it would compromise the integrity of American National’s relationship with United Crane and create a potential conflict of interest to allow American National’s subrogation claim against Hughes.

IV

[¶ 19] We conclude the undisputed material facts in this case establish Hughes was, for purposes of the subrogation claim, an implied co-insured under American National’s policy with United Crane, and American National is precluded from obtaining subrogation from Hughes. We affirm the summary judgment.

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