author: RANDALL, Judge

text:
    Ted BIGOS, d/b/a The Observatory Apartments, Respondent, v. Joel KLUENDER, et al., Appellants, West Bend Mutual Insurance Company, Respondent, Lori Tejeda, Respondent, Intervener, Joan Azzam, Respondent, Scott Church, et al., Respondents, Intervenors, Dan Windorf, et al., John Titus, et al., Brian Dickerhoof, John Doe, et al., Defendants.
    Nos. CX-99-1928, CX-99-1931, C7-99-2065.
    Court of Appeals of Minnesota.
    June 6, 2000.
    Review Denied July 25, 2000.

      L.T. Merrigan, Hopkins, for respondent Ted Bigos.
    Allan E. Wallace, Brown & Carlson, P.A., Minneapolis, for appellants.
    Lyndon P. Nelson, Andrea M. Nelson, Nelson & Associates, West St. Paul, for respondent West Bend Mutual.
    Gary Liebmann, Burnsville, for respondent Lori Tejeda.
    Thomas J. White, Minnetonka, for respondent Joan Azzam.
    Steven L. Theesfeld, David J. Yarosh, Yost & Baill, L.L.P., Minneapolis, for respondents Scott Church, et al.
    Dan Windorf, et al., pro se defendant.
    John Titus, et al, pro se defendant.
    Bryan Dickerhoof, Burnsville, pro se defendant.
    Considered and decided by AMUNDSON, Presiding Judge, RANDALL, Judge, and HUSPENI, Judge.

      . Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. Art. VI, § 10.

   OPINION

RANDALL, Judge

Appellants argue that the district court erred when it granted summary judgment for respondents, ruling that appellants’ negligence per se was a direct cause of respondents’ damages and that respondent landlord did not owe tenants, including appellants, a duty of care. Respondent landlord’s insurer argues that the district court erred when it dismissed its subrogation claim against appellants. We affirm in part, reverse in part, and remand.

FACTS

In July 1996, appellants Joel and Jennifer Kluender signed a lease and house rules to live in the Observatory Apartments. The apartment complex was owned by respondent Ted Bigos Investments, Inc. In August 1996, the Kluenders moved into an apartment on the second floor. On their deck, the Kluenders kept a kettle-type full-size grill, a bag of chareoal, a can of lighter fluid, and a cardboard box containing spent ash and garbage.

It was Joel Kluender’s practice to cook on the grill, allow the coals to burn to ash, and put the ash into the cardboard box the next time he used the grill. In April 1997, while emptying ash into the box, some of the ash fell onto the patio, below the Kluen-ders’ deck. The tenant in the unit below, Bryan Dickerhoof, complained to an apartment manager, Joan Azzam, that the Kluenders had a grill on their deck and that ash fell onto his patio. By letter dated April 14, 1997, Azzam informed the Kluenders of Dickerhoofs complaint, explained the illegality of keeping such grilling items on their apartment deck, and instructed the Kluenders to remove the grill. Azzam did not personally deliver the letter to the Kluenders, but left it for a caretaker to deliver. . The Kluenders claim they did not receive the letter.

On April 29, 1997, a fire occurred on the Kluenders’ apartment deck. Dave Cros-bie, an inspector for the Burnsville Fire Department, was at the scene of the fire and determined that the most likely cause of the fire was spontaneous combustion of unconsumed charcoal in the cardboard box. Crosbie also stated the fire could have been started by a hot coal that had been put into the cardboard box, but concluded that this was unlikely because the Kluender’s stated that at least ten days had passed since the grill had last been used. According to Crosbie, the fire started on the southwest comer of the Kluen-ders’ balcony where the cardboard ash box was kept.

Richard Kleis of the State Fire Marshall’s Office determined that the cause of the fire was spontaneous combustion of the bag of charcoal on the deck. Kleis was not at the scene of the fire, but reviewed the aftermath and interviewed and discussed the incident with Burnsville fire investigators. It was Kleis’s conclusion that the origin of the fire was the northeast wall area of the Kluenders’ balcony where the bag of charcoal was located.

ISSUES

1. Did the district court err when it ruled the Kluenders were negligent per se?

• 2. Did the district court err when it ruled that landlord did not owe tenants, including appellants, a legal duty to warn or protect against appellants’ violation of the municipal fire code?

3. Did the district court err in ruling the landlord’s insurer may not subrogate against appellants?

ANALYSIS

On appeal from summary judgment, this court asks (1) whether there are any genuine issues of material fact and (2) whether the lower court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). This court “must view the evidence in the light most favorable to the party against whom judgment was granted.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993) (citation omitted). Summary judgment shall be granted only where there is no genuine issue of material fact and either party is entitled to judgment as a matter of law. Id.

I.

The Kluenders argue that the district court erred when it ruled that they were “negligent per se” because the cardboard ash box constituted “other material” under the city ordinance and that the Kluenders violated the ordinance by maintaining the ash box on their deck. The Kluenders point out that technically the city ordinance does not prohibit the storage of spent ash on apartment decks and that there exists the possibility of spent ash as a source of the fire. The Kluenders contend that a genuine issue of material fact exists regarding causation that precludes summary judgment. We agree. Regardless of whether the city ordinance does or does not specifically prohibit any of appellants’ materials that could be possible sources of the fire, the issue of what caused the fire still exists. Differing reasonable explanations appear on the record.

In determining whether a violation of a statute or ordinance constitutes negligence per se, plaintiff, must demonstrate that: (1) the breach of the statute or ordinance harmed persons intended to be protected by the statute or ordinance, and (2) the harm suffered is the type of harm the legislature intended to prevent. Pacific Indemnity Co. v. Thompson-Yaeger, Inc., 260 N.W.2d 548, 558-59 (Minn.1977).

The Burnsville fire code provides:
No person shall construct, erect, install or use any incinerator or barbecue nor kindle or maintain any open flame, charcoal or other material on any balcony or patio which is attached to, or within fifteen (15’) feet of, any townhouse, condominium or apartment building in which there are two (2) or more separate living units on more than one level unless the separate living units each has its own private means of ingress or egress or unless the entire building and patio or balcony is constructed of noncombustible materials such as concrete or masonry.

Burnsville, Minn., Fire Prevention Code § 5 — 1—1(1) (1999) (emphasis added).

Although it is undisputed that appellants stored a grill, a bag of charcoal, lighter fluid, and a cardboard ash box on then-apartment deck, the cause of .the fire is disputed. According tq Crosbie, the most likely cause of the ‘fire was the spontaneous combustion of unconsumed charcoal in the cardboard ash box. But in his report, Crosbie stated that he did not find any charcoal in the cardboard ash box or in the immediate vicinity of the ash box. Kleis, on the other hand, opined that the fire was caused by the spontaneous combustion of charcoal in the bag kept on the balcony by the Kluenders.

As the Kluenders argue, the Burnsville ordinance does not prohibit the storage of spent ash on the deck of a multi-unit apartment complex. If the trier of fact were to find that the ash box did not contain any .unconsumed charcoal, it could reasonably conclude that the Kluen-ders were not negligent per se because the fire was not proximately caused by a violation of the Burnsville city ordinance. Although we do not pass on the strength of the Kluenders’ claim, viewing the evidence in the light most favorable to the Kluen-ders as we must, we conclude that the issue of causation presents a genuine issue of material fact that precludes summary judgment on the issue of whether the Kluenders were negligent per se.

II.

The Kluenders argue that the landlord, respondent Ted Bigos, owed and assumed a duty to the apartment complex tenants, including themselves, to warn them (of their own alleged negligence) to remove grilling materials from their deck.

.Whether a legal duty exists is generally a question of law for this court to determine de novo. Johnson v. State, 553 N.W.2d 40, 49 (Minn.1996). Generally, a person haá no duty to protect another, “even if he realizes or should realize that action on his part is necessary.” Donaldson v. Young Women’s Christian Ass’n, 539 N.W.2d 789, 792 (Minn.1995) (citation omitted). In Minnesota,

there is no common-law duty imposed on any individual * * * to inspect and correct the fire code violations of a third person unless there is a ‘special relation’ between the parties.

Cracraft v. City of St. Louis Park, 279 N.W.2d 801, 804 (Minn.1979). Thus, absent some special relationship between the Kluenders and their landlord, the landlord owed no duty to the Kluenders to inspect and correct any alleged fire code violations by the Kluenders.

A special relationship creating a duty on the part of a defendant to protect often involves some degree of dependence. H.B. by Clark v. Whittemore, 552 N.W.2d 705, 708 (Minn.1996).. A special relationship giving rise to a duty to protect is generally found only on the part of

common earners, innkeepers, possessors of land who hold it open to the public, and persons who have custody of another person under circumstances in which that other person is deprived .of normal opportunities of self-protection.

Donaldson, 589 N.W.2d at 792 (citation omitted). In such relationships, the plaintiff is, in some respect, particularly vulnerable and dependent on the defendant who holds considerable power over the plaintiffs welfare. Id. A landlord-tenant relationship alone does not create a duty to protect. Nickelson v. Mall of Am. Co., 593 N.W.2d 728, 726 (Minn.App.1999).

The Kluenders contend that the landlord had a duty to warn them that they could not store grilling material on their deck because it violated the municipal fire code. In essence, the Kluenders claim that the landlord should have protected them from themselves. First, courts have traditionally been reluctant to impose liability on others for self-inflicted harm. Donaldson, 539 N.W.2d at 792. Generally, a legal duty to protect another against self-inflicted harm is recognized where an institution has physical custody and control over the person to be protected, such as a hospital or jail. Id. That is not the case here. The harm here was self-inflicted by the Kluenders. The relationship between the Kluenders and their landlord was not custodial or of a caretak-ing nature. We conclude the landlord did not have a duty to protect the Kluenders from themselves. Further, that the landlord had actual knowledge of the existence of grilling material on the Kluenders’ deck does not change our analysis. “[Sjuperior knowledge of a dangerous condition by itself, in the absence of a duty to provide protection, is insufficient to establish liability in negligence.” Harper v. Herman, 499 N.W.2d 472, 475 (Minn.1993). Because the landlord had no special duty to protect the Kluenders, the landlord’s knowledge of the grilling material, without more, does not create liability.

The Kluenders argue that a spe-' cial relationship existed because the landlord had the ability to control the Kluen-ders through its lease and the house rules. The Kluenders contend that the landlord accepted entrustment of the situation when it drafted the letter informing the Kluenders of Dickerhoofs complaint, namely, the illegality of keeping grilling material on the their deck, and instructing them to remove the grilling, material from the deck. Ironically, while the landlord insists that it sent this letter to the Kluen-ders,. the Kluenders maintain they never received it! Viewing the facts in the light most favorable to the Kluenders, we assume the Kluenders. did not receive the letter. Because the Kluenders claim they never received the letter, it is difficult for the Kluenders to argue that as a matter of law they “relied” on a representation by the landlord that it would protect them from fire code violations.

A similar situation was addressed in Whittemore. In that case, a trailer park manager did not take action after children in the trailer park told her another tenant was sexually abusing them. Whittemore, 552 N.W.2d at 707. Despite having actual knowledge that the alleged perpetrator had pleaded guilty to molesting children previously, the manager did nothing other than to tell the complaining children to inform their parents of the .alleged sexual abuse. Id. The court concluded that in light of the manager’s statement, the manager did not accept entrustment of the children. Id. at 708-09. The court also noted that the manager did not exercise control or custody over the children. Id. at 709. The court held that because there was no special relationship between the manager and the children, the manager did not have a duty to protect the children or warn their parents. Id. at 709-10.

■ In the present case, the. Kluenders have failed to establish that a special relationship existed between them and their landlord. Because the Kluenders have failed to establish the existence of a special relationship, we conclude that despite the landlord’s knowledge that the Kluenders had grilling material on their deck in violation of the municipal fire code, the landlord had no affirmative duty to warn the Kluenders to correct the fire code violation.

We reject the Kluenders argument that the presence of the grilling material was a dangerous condition on the •land for which the landlord had a duty to warn. The cases relied on by the Kluen-ders are readily distinguishable by the fact that they involved the landlord’s duty to exercise reasonable care in maintaining the premises in such a manner that “does not expose the visitor to an unreasonable risk of harm.” Pietila v. Congdon, 362 N.W.2d 328, 332-33 (Minn.1985). Here, the Kluenders’ deck was not a common area over which the landlord had a duty to exercise reasonable care in maintaining. We conclude that Pietila is inapposite to the present case.

We are not persuaded by the Kluenders’ argument that the landlord exercised- sufficient control over the Kluen-ders’ deck to impose a duty to exercise reasonable care on their behalf. To support their position, the Kluenders rely on Lillemoen v. Gregorich, 256 N.W.2d 628 (Minn.1977). In Lillemoen, two tenants brought suit against their landlord for injuries one of the tenants sustained after falling down an icy exterior stairway. Id. at 629-30. The tenants argued that the landlord owed a duty to keep the stairs free of ice. Id. at 631. The court concluded that “common area” cases did not apply because the stairway led only to the tenants’ apartment. Id. The court applied section 360 of the Restatement of Torts (Second), which provides:

“A possessor of land who leases a part thereof and retains in his own control any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee * * * for physical harm caused by a dangerous condition upon that part of the land retained in the lessor’s control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe.”

Id. at 631-32. Because the issue of control over the stairway was disputed, the court held that summary judgment was inappropriate. Id. at 632.

In Lillemoen, liability turned on who had the responsibility for maintaining the staircase, the landlord or the tenant. Unlike the staircase in Lillemoen, the deck was part of the leased premises, not an appurtenance to the leased premises. The Kluenders failed to establish that the landlord was responsible for policing what objects were allowed on their deck. We conclude that the decision in Lillemoen is riot controlling.

III.

Pursuant to its notice of review, the landlord’s insurer, United Fire & Casualty Company, argues that it is entitled to recover the entire loss it has paid to the landlord because it was necessitated by the Kluenders’ alleged negligence. We disagree.

An insurance company cannot subrogate against its own insured under general principles of insurance law. United States Fire Ins. Co. v. Ammala, 334 N.W.2d 631, 634 (Minn.1983). This general principle has been extended to prohibit an insurer from subrogating against a tenant of its insured who negligently starts a fire, unless an express agreement was entered into between the insured and its tenant requiring the tenant to carry its own fire insurance. See United Fire & Cas. Co. v. Bruggeman, 505 N.W.2d 87, 90 (Minn.App.1993) (holding landlord’s insurer may not subrogate against landlord’s tenant who negligently causes fire where no express agreement between landlord and tenant covering provision of fire insurance), review denied (Minn. Oct. 19, 1993). A landlord and tenant are co-insureds because the insurance premiums are indirectly paid by the tenant through rent, and if each tenant were responsible for damages caused by the tenant’s negligence in a fire, the same property would be insured more than once. Id. at 89. This rule “applies to any landlord/tenant situation where there is no express agreement covering the provision of fire insurance for the building.” Blohm v. Johnson, 523 N.W.2d 14, 16 (Minn.App.1994) (citation omitted).

United Fire argues that the- Minnesota Supreme Court’s decision in Osborne v. Chapman, 574 N.W.2d 64 (Minn.1998), limits and implicitly overrules the decision in Bruggeman. We disagree. The decision in Osborne did not involve a subrogation claim brought by an insurer, but rather was a direct claim by landlords against a tenant. Id. at 66. Because the case did not involve subrogation, the supreme court determined Bruggeman was inapplicable. Id. at 67. The court held that liability will not be affected by the plaintiffs possession of insurance coverage. Id.

This case is a subrogation claim. United Fire is trying to recover from the Kluenders payments already made to the landlord. Because there was no express agreement between the Kluenders and the landlord that the Kluenders were obligated to retain their own fire insurance, United Fire’s subrogation action against the Kluenders fails.

DECISION

The district court improperly granted summary judgment on the issue of whether the Kluenders were negligent per se. A genuine issue of material fact exists on the issue of what caused the fire.

No special relationship existed between the landlord and the Kluenders. Thus,- the landlord owed no special duty to the Kluenders to inspect and correct the Kluenders’ fire code violations. United Fire cannot subrogate against the Kluen-ders, the tenants, for fire insurance monies paid to the landlord. The lease agreement did not- require the Kluenders to carry their own fire insurance.

Affirmed in part, reversed in part, and remanded.


source: Caselaw Access Project

author: HARTEN, Judge.

license: Public Domain

text:
    Terri JOHNSON, as Trustee for the Next-of-Kin and Surviving Spouse of Robert Harold Johnson, Deceased, Appellant (C5-00-94), Terri Johnson, as Trustee for the Next-of-Kin of Beth Charise Lundberg, Deceased, Appellant (C7-00-95), v. Melvin JOHNSON and Bernice Johnson, individually and d/b/a Lite-house Motors, Respondents, Scott Patrick Harrell, Respondent, Rebeccá Gumtow, Respondent.
    Nos. C5-00-94, C7-00-95.
    Court of Appeals of Minnesota.
    June 20, 2000.

      Stephanie A. Ball, Fryberger, Buchanan, Smith & Frederick, P.A., Duluth, for appellant.
    John D. Kelly, Robin C. Merritt, Hanft Fride, P.A., Duluth, for respondents Melvin and Bernice Johnson.
    Considered and decided by HARTEN, Presiding Judge, TOUSSAINT, Chief Judge, and SHUMAKER, Judge.
   OPINION

HARTEN, Judge.

Appellant, trustee for the estates of deceased victims of a motor vehicle collision, brought this action against respondents, who sold the truck involved in the collision, alleging breach of a seller’s duty to determine whether purchasers are licensed and insured, negligent entrustment, and vicarious liability as an owner under the Safety Responsibility Act. Respondents moved successfully for summary judgment on all three allegations. Because we see no genuine issues of material fact and no error of law, we affirm.

FACTS

Respondents Melvin Johnson .and Bernice Johnson, d/b/a Litehouse Motors, a used car dealership, purchased at an auction a pickup truck owned by John Stoffel. Title to the pickup was not transferred immediately because Melvin Johnson was hospitalized.

In November 1998, Beth Gumtow,' accompanied by her boyfriend, Scott Harrell, purchased the pickup from respondents in a cash transaction. Gumtow and Harrell informed respondents’ salesman that Gum-tow’s name should be on the title, and she signed the purchase agreement. Gumtow provided respondents with her driver’s license and with the name of an insurance company she said was providing coverage for the pickup, Harrell said that he had left his license in Anoka.

In December 1998, Harrell, with a blood alcohol level of .15, was driving the pickup when it collided with a vehicle driven by Robert Johnson in which Beth Lundberg was a passenger. Johnson and Lundberg, husband and daughter of appellant Terri Johnson, were killed. Subsequent investigation revealed that Harrell’s license had been revoked in 1995 and that Gumtow had supplied inaccurate insurance information; the pickup was not insured. Stoffel remained its registered owner.

In her capacity as trustee for the next-of-kin for Johnson and Lundberg, appellant brought wrongful death actions against Gumtow, Harrell, and respondents. She alleged three grounds for respondents’ liability: (1) breach of the standard of care required of a used car dealership, (2) negligent entrustment of the pickup, and (3) ownership liability under the Safety Responsibility Act. The district court granted respondent summary judgment on all three grounds.

ISSUES

1. Does the seller of a motor yehicle have a duty to investigate the license status of a prospective driver?

2. Does the tort of negligent entrustment apply to the seller of a motor vehicle?

3. Is a non-owner of a motor vehicle liable under the Safety Responsibility Act?

ANALYSIS

■ On an appeal from summary judgment, this court asks whether there are any genuine issues of material fact and whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990) (citation omitted). The issues appellant raises all concern application of the law. The application of law to stipulated facts is a question of law, which we review de novo. Morton Bldgs., Inc. v. Commissioner of Revenue, 488 N.W.2d 254, 257 (Minn.1992).

1. Duty of Sellers of Motor Vehicles

Appellant argues that this court should create a law imposing on Minnesota sellers of motor vehicles a duty to determine the license and insurance status of car purchasers. Creating such a law, however) is beyond the scope of this court’s authority. See, e.g., Lake George Park, L.L.C. v. IBM Mid-America Employees Fed. Credit Union, 576 N.W.2d 463, 466 (Minn.App.1998) (“This court, as an error correcting court, is without authority to change the law”), review denied (Minn. June 17) 1998); Stubbs v. North. Mem. Med. Ctr., 448.N.W.2d 78, 83 (Minn.App. 1989) (declining to recognize a cause of action not yet recognized previously by the courts or created, by legislative action because “[t]he function of this court is primarily decisional and error correcting, rather than legislative or doctrinal”), review denied (Minn. Jan. 12, 1990); St. Au- bin v. Burke, 434 N.W.2d 282, 283 (Minn.App.1989) (quoting this court’s Internal Rules: “[The court’s] primary function is the correction of error by application of legal principles. Its task is to find the law, to state it, and to apply it to the facts”), review denied (Minn. Mar. 29,1989).

Sellers are not required to check the license and insurance status of purchasers. See Minn. R. 7400.5200 (requiring only a sales agreement with the names and addresses of the parties, a complete description of the vehicle, and financial information). Although they were not required to do so, respondents routinely checked the license status of purchasers. Appellant argues that this practice imposes on respondents a parallel duty to check also the license status of prospective drivers, and that respondents breached this duty by failing to check the status of Harrell’s license. But there is no basis for requiring sellers who check purchasers’ license status to check the license status of prospective drivers as well; moreover, such a requirement would discourage sellers from checking anyone’s license status. We conclude that the district court did not err in finding that respondent had no duty to determine Harrell’s license status.

2. Negligent Entrustment

Minnesota has adopted' Restatement (Second) of Torts § 390 on negligent entrustment:

One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a: manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.

Axelson v. Williamson, 324 N.W.2d 241, 244 (Minn.1982) (a car owner who permitted unlicensed, underage girl to drive negligently entrusted the vehicle to her); Lim v. Interstate Sys. Steel Div., Inc., 435 N.W.2d 830 (Minn.App.1989) (semi owner who permitted his employee to drive semi negligently entrusted it), review denied (Minn. Apr. 19,1989).

Minnesota has no case addressing negligent entrustment in the context of a sale. But even assuming the sale was an entrustment, appellant cannot prove a pri-ma facie case.

In Minnesota negligent entrustment. has been defined as a separate wrongful act when the negligence of the driver is reasonably foreseeable and the entrust- or fails ■ in the duty ’ to take steps to prevent operation of the vehicle by the driver.
* * * [T]he entrustor’s duty runs directly to those who might be put at risk as a result of the negligent entrustment.

Id. at 832-33. Harrell’s negligence in driving the pickup six weeks after Gumtow bought it was not “reasonably foreseeable” to respondents, who sold the pickup to a driver they knew was- licensed and had been told was insured. Moreover, respondents had no control of the pickup on the day the accident occurred.

3. Liability under the Safety Responsibility Act

Minn.Stat. § 170.54 (1998) provides that the owner of a motor vehicle is* vicariously liable for damages caused by one who is operating the vehicle with the owner’s consent. Milbank Mut. Ins. Co. v. United States Fidelity & Guar. Co., 332 N.W.2d 160, 167 (Minn.1983). Minn.Stat. § 168A.10 (1998) creates a rebuttable presumption that the owner of record is the owner. See Welle v. Prozinski, 258 N.W.2d 912, 916 (Minn.1977). Therefore, because the title was not transferred, the pickup’s presumed owner of record at the time of the accident was Stoffel, who had sold it to respondents. But the purchase agreement by which respondents sold the pickup to Gumtow rebuts the presumption that either Stoffel or respondent owned it.

Appellant contends that the purchase agreement is void because it represents Gumtow as the owner when the real owner was Harrell. That distinction, however, is irrelevant to this appeal: whether ownership of the pickup passed to Gumtow or to Harrell, it passed from respondents, and respondents are therefore not liable as the owner under the Safety Responsibility Act.

DECISION

Respondents had no duty to determine the status of Harrell’s license. They did not negligently entrust the pickup to him when they sold it to Gumtow and they did not own the pickup when the accident occurred. Respondents are not liable to appellant.

Affirmed; motion granted.

      . Appellant’s claims against Gumtow and Harrell, neither of whom is insured, are pending.

      . In Dodge Ctr. v. Anderson, 199 Cal.App.3d 332, 244 Cal.Rptr. 789 (1988), review denied (Cal. May 19, 1988), a case with very similar facts brought by victims of a collision with a truck sold to and driven by an unlicensed driver against the truck’s seller, the court expressed doubt that a sales transaction could give rise to negligent entrustment liability, id. at 792, and reiterated a dealer's right to assume that a buyer will obey the law. Id at 794. See also Sligh v. First Nat’l Bank, 735 So.2d 963, 969-70 (Miss.1999) (no negligent entrustment in sale of motor vehicle to an alcoholic because seller no longer had ownership of or control over the car); Day v. Williams, 670 So.2d 914, 916 (Ala. 1995) (no negligent entrustment where a seller was unaware that the buyer, an experienced adult driver, did not possess a license and seller had no control or dominion over the vehicle when the accident occurred); Sansonetti v. City of St. Joseph, 976 S.W.2d 572, 579 (Mo.Ct.App.1998) (no negligent entrustment claim because seller had permanently relinquished car to buyer two weeks prior to the accident); Kirk v. Miller, 7 Kan.App.2d 504, 644 P.2d 486, 490 (1982) (no negligent entrustment claim against seller who no longer owned vehicle when no evidence indicated that seller knew buyer was an incompetent driver and had no liability insurance), review denied (Kan. June 28, 1982); Sikora v. Wade, 135 N.J.Super. 62, 342 A.2d 580, 582 (1975) (attaching liability to a vendor who sold a car without investigating the purchaser’s background would "unduly hamper commerce and would pose an undue burden on ordinary business relationships”); Rush v. Smitherman, 294 S.W.2d 873, 876 (1956) (holding that liability for negligently entrusting a vehicle to an unlicensed driver is part of the law of bailments, but not part of the law of sales or gifts); but see Small v. St. Francis Hosp., 220 Ill.App.3d 537, 163 Ill.Dec. 203, 581 N.E.2d 154, 157-58 (1991) (negligent entrustment "when a car seller has reason to know that a prospective buyer is underage, unlicensed, or otherwise incompetent”); Kahlenberg v. Goldstein, 290 Md. 477, 431 A.2d 76, 81-82 (1981) (negligent entrustment claim where a father purchased a car for his son knowing of the son's reckless driving propensity).

      . We grant respondents’ motion to strike parts of appellant's brief and .appendix because they discuss or include matters not part of the record before the district court. See Minn. R. Civ.App. P. 110.01 (defining the record as the papers filed in the trial court, the exhibits, and the transcript).


author: KAPSNER, Justice.

text:
    2000 ND 106
    STATE of North Dakota, Plaintiff and Appellee, v. Kathleen Marie THIELING, Defendant and Appellant.
    No. 990383.
    Supreme Court of North Dakota.
    May 25, 2000.

      James 0. Johnson, State’s Attorney, Stanton, ND, for plaintiff and appellee.
    Richard B. Baer, P.C., Bismarck, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Kathy Thieling appeals from a district court order denying her motion to suppress evidence. We conclude the magistrate judge did not have a substantial basis to determine there was probable cause to believe drugs or contraband would be found in Thieling’s home. We thus hold the district court erred in denying Thieling’s motion to suppress evidence resulting from the illegal search. We reverse and remand.

I

[¶ 2] In September 1999, a special agent for the North Dakota Bureau of Criminal Investigations applied to a magistrate judge for a warrant to search the home of Kathy Thieling and her husband. In an affidavit supporting the application, the special agent emphasized several items associated with the possession and sale of methamphetamine and cocaine, such as baggies and small pieces of plastic and tin foil, had been discovered in garbage bags taken from the curb at Thieling’s home; persons who had recently visited Thieling’s home were associated with drug activities or associated with other persons who were involved in drug activities; in the two weeks since the trash bags were taken, garbage had not been placed on the curb at Thieling’s home; and mail discovered in the garbage bags indicated the garbage items were from Thieling and her husband'. The special agent indicated he had approximately six years of law enforcement experience which included drug investigations and training.

[¶ 3] The magistrate judge granted the search warrant application. During the search, illegal drugs were found and Thiel-ing made incriminating statements. She was arrested. "During a search at the jail, drugs were found on Thieling.

[¶ 4] Thieling filed a motion to suppress the drug evidence found during the home and jail searches and to suppress her statements. She argued the special agent’s affidavit was insufficient to establish probable cause to issue the search warrant. •

[¶ 5] The district court issued an order denying Thieling’s motion to suppress. The district court noted “[t]he tape recording made in chambers of the hearing on the question of probable cause was apparently erased. Thus the only question is whether the affidavit alone establishes probable cause for the issuance of the search warrant.” The district court concluded the affidavit established there was a fair probability contraband or evidence of a crime would be found in Thieling’s home. Thieling pled guilty to two drug charges on the condition she could appeal from the district court’s order. Thieling appealed from the order.

II

[¶ 6] Arguing the affidavit is insufficient to establish probable cause for the search warrant, Thieling asserts the search was illegal under the Fourth Amendment and the evidence stemming from the illegal search, including all the drugs and her statements, must be suppressed.

[¶ 7] Probable cause is required for a search warrant under the Fourth Amendment to the United States Constitution and Article I, Section 8 of our state constitution. . State v. Wamre, 1999 ND 164, ¶ 5, 599 N.W.2d 268 (citation omitted). Probable cause to search exists “if the facts and circumstances relied on by the magistrate would warrant a person of reasonable caution to believe the contraband or evidence sought probably will be found in the place to be searched.” State v. Johnson, 531 N.W.2d 275, 278 (N.D.1995). Although each piece of information may not alone be sufficient to establish probable cause and some of the information may have an innocent explanation, “probable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observed as trained officers.” State v. Damron, 1998 ND 71, ¶ 7, 575 N.W.2d 912 (citations omitted).

[¶ 8] Whether probable cause exists to issue a search warrant is a question of law. Id. at ¶ 5 (citation omitted). We defer to the magistrate judge’s findings if there is a substantial basis for the determination probable cause exists. Id. at ¶ 6. “We resolve doubt about the sufficiency of an affidavit in, support of a request for a search warrant in favor of sustaining the search.” Wamre, at ¶7. We also recognize “courts must take into account inferences and deductions that a trained and experienced officer makes.” State v. Mische, 448 N.W.2d 415, 419 (N.D.1989). However,, where there is merely information which may cause suspicion and warrant further investigation, there is not probable cause to search. State v. Lewis, 527 N.W.2d 658, 663 (N.D.1995). In Lewis, we held evidence the defendant had equipment consistent with indoor marijuana growing operations, evidence the defendant had styrofoam and fiberglass insulation on windows, and evidence of increased electrical usage was insufficient to establish probable cause. Id. We emphasized the equipment could be used for growing legal plants and the extra insulation is consistent with both “[w]eatherproofing one’s home- for winter” and the indoor growing of legal plants. Id. at 662-63.

[¶ 9] Thieling contends the evidence found in her garbage, the baggies, plastic, and tin foil, is not probative. Conduct which is “seemingly innocent” may give rise to probable cause. Illinois v. Gates, 462 U.S. 213, 243-44 n. 13, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The “relevant inquiry is not whether particular corn duct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.” Id. Baggies, plastic, and tin foil are common household goods. The baggies which were altered, by being torn and tied, may raise more suspicion than unaltered baggies since the affiant asserted those items “indicate a common method of packaging for distribution either methamphetamine or cocaine.” See Mische, at 419 (indicating courts must consider inferences and deductions of trained officers). However, baggies are intended to be used for packaging items, and tearing and tying baggies is consistent with packaging. There may have been probable cause to believe Thieling was packaging goods in her home; however, there was not probable cause to believe the packaged goods were illegal drugs. When combined with the other minimal evidence of drug activity, the garbage evidence, which does not have drug residue, does not raise a high degree of suspicion and therefore is merely a thin layer to be measured in the probable cause analysis.

[¶ 10] Thieling argues her “pattern” of not putting garbage out on the curb is not probative. The affiant indicated Thieling’s failure to place garbage on the curb on two consecutive garbage days “may indicate Roger and Kathy Thieling know of the initial trash search” and “are discarding their trash in places other than where it is normally discarded.” However, there is nothing inherently suspicious in not putting garbage out on two consecutive garbage days. Thieling may not have known her garbage bags were searched. If Thieling had discovered the garbage bags were taken, the “pattern” may simply indicate she enjoyed her privacy and did not want neighbors or others to sift through her garbage. If Thieling knew law enforcement had taken the garbage bags, one could assume she would try to reduce suspicion by simply placing nonincriminat-ing garbage on the curb and throwing incriminating garbage elsewhere. When combined with the other minimal evidence of drug activity, the “pattern” evidence does not raise a high degree of suspicion and accordingly is at most a very thin layer to be measured in the probable cause analysis.

[¶ 11] Thieling asserts some of the evidence of her associating with persons involved with drug activities is unreliable. “[Sufficient information, rather than ‘bare bones’ information must be presented to the magistrate”; “[a]n affidavit expressed in conclusions without detailing underlying information is insufficient for probable cause.” State v. Rangeloff, 1998 ND 135, ¶ 19, 580 N.W.2d 593 (citations omitted). The affidavit provides “[Information was received by S/A Todd DeBoer from Stanton Chief of Police Dan Ell ... that he believed Roger and Kathy Thieling were involved in illegal controlled substances.” Although “[w]e generally consider observations of law enforcement officers involved in a common investigation as a reliable source in a magistrate’s probable cause determination,” here there is neither an explanation of how Ell determined the Thielings were involved with drugs nor corroboration of Ell’s information. See State v. Damron, 1998 ND 71, ¶ 16, 575 N.W.2d 912 (holding information passed from one law enforcement officer to another officer was sufficiently reliable where some of the information was corroborated by independent investigation); State v. Hage, 1997 ND 175, ¶¶ 15-19, 568 N.W.2d 741 (holding information passed from several law enforcement officers to another officer was sufficiently reliable where the information was corroborated by independent investigation). The affidavit also provides “Deputy David Hilliard advised S/A Craig Zachmeier that he received information that Lawrence Fischer, Jr., and his girlfriend Pam Lenoir are involved with narcotics” and they have been seen at Thieling’s residence; however, it does not indicate where Hilliard received the information. Finally, the affidavit provides Fischer, Jr., “has been known to associate with individuals ... arrested for narcotics incidents” but does not explain how the affiant acquired the information. Because the source of the information is not included and the information was not corroborated, the evidence lacks sufficient indicia of reliability and does not provide a layer in the probable cause analysis.

[¶ 12] Thieling argues other evidence of her associating .with persons involved with drug activities is not probative. “[M]ere suspicion 'that persons visiting the premises are connected with criminal activity will not suffice” for issuance of a warrant to search the premises. 2 Wayne R. LaFave, Search and Seizure § 3.7(d), at 374 (3d ed.1996). “[A] person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause.” Ybarra v. Illinois, 444 U.S. 85, 90, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) (citation omitted) (indicating there was not probable cause to search a bar patron where a warrant was issued to search the bar and the bartender). “In order to find probable cause based on association with persons engaging in criminal activity, some additional circumstances from which it is reasonable ^o infer participation in criminal enterprise must be shown.” United States v. Ingrao, 897 F.2d 860, 864 (7th Cir.1990) (citation omitted) (holding the defendant’s arrest .was unlawful). The affidavit references three specific occasions involving Thieling’s associations. On the first occasion, the Stanton police chief saw vehicles owned by Angela Cahoon and Fischer, Jr., at Thieling’s home. Cahoon was “charged with” delivery of marijuana and manufacture of a controlled substance in March 1996. On the second occasion, the vehicle of Thieling’s brother, Kenneth Borner, was seen at Thieling’s home. Borner had been convicted of drug offenses in 1982. On the third occasion, Sandra Pickerd’s vehicle was seen at Thieling’s home. Pickerd lives with Michael Gensburger who was convicted of drug crimes in the past. This evidence is of little or no probative value. Associating at one’s home with one who was merely charged with a drug crime three and a half years ago, associating with one’s own brother who was convicted of a drug crime about seventeen years ago, and associating with the roommate of a person convicted of drug crimes are very remote links to drug activities. There.is no specific information indicating the persons visited Thieling’s home on more than one occasion and there is no indication of what the persons did while at Thieling’s home. See United States v. Everroad, 704 F.2d 408, 407 (8th Cir.1983) (indicating “a brief association with a suspected criminal — when there is no other unlawful or suspicious conduct by any party involved— cannot support a finding of probable cause” and thus concluding the defendant’s arrest was unlawful). An appropriate inference would be the persons were mere “casual social guest[s]” at Thieling’s home. See Greenstreet v. County of San Bernardino, 41 F.3d 1306, 1309 (9th Cir.1994) (citation omitted) (holding there was insufficient evidence to infer a man with a history of drug offenses who was seen at the searched residence was “other than a ‘casual social guest’ ”). When combined with the other minimal evidence of drug activity, the association evidence does not raise a high degree of suspicion and thus is at most a very thin layer to be measured in the probable cause analysis.

[¶ 13] The foregoing shows the evidence suggesting drugs or contraband would be in Thieling’s home was tenuous. Construing the very few and very thin layers together, one could not conclude drugs or contraband would probably be found in Thieling’s home. The affidavit does not provide a substantial basis for the magistrate judge’s conclusion there was probable cause to issue the search warrant. The search of Thieling’s home was therefore illegal under the federal and state constitutions and the evidence stemming from the search, including the drugs found during the home and jail searches and Thieling’s statements, should have been suppressed.

Ill

[¶ 14] Because the magistrate judge did not have a substantial basis to determine there was probable cause to search Thiel-ing’s home, we reverse the district court’s order denying Thieling’s motion to suppress. The case is remanded to the district court and the district court is directed to allow Thieling to withdraw her guilty plea.

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

      . The magistrate judge who issued the search warrant also presided at the district court proceedings. Neither party objected or raises that now as an issue.

      . Where drug residue is discovered in garbage, some courts have noted "it is well established that affidavits based almost entirely on the evidence garnered from garbage may be sufficient to support a finding of probable cause.” United States v. Sumpter, 669 F.2d 1215, 1221 (8th Cir. 1982); see also State v. Johnson, 531 N.W.2d 275, 278 (N.D.1995) (holding it was "reasonable for the magistrate to have concluded, from the presence of marijuana seeds in [the defendant’s] garbage bag, that more marijuana was probably located inside his house”); State v. Rydberg, 519 N.W.2d 306, 307-10 (N.D.1994) (upholding issuance of a search warrant based primarily on evidence of cocaine residue in the defendant's garbage). Here, the affiant conceded the tests could not show the residue from the garbage items was drugs.

      . The affiant indicated, authorities took and searched four garbage bags from Thieling’s curb but only returned two bags because of problems with dirty cat litter in the other two bags.

      . The State did not assert and no evidence suggests Gensburger had borrowed Pickerd's vehicle and was himself at Thieling’s home.


author: MARING, Justice.

text:
    2000 ND 112
    STATE of North Dakota, Plaintiff and Appellee, v. Leonard Eugene NORRID, Defendant and Appellant.
    No. 990308.
    Supreme Court of North Dakota.
    May 25, 2000.

      Wade L. Webb, Assistant State’s Attorney, Fargo, for plaintiff and appellee.
    Monty G. Mertz, Fargo, for defendant and appellant.
   MARING, Justice.

[¶ 1] Leonard Norrid appeals from a judgment of conviction resulting from his conditional pleas of guilty under N.D.R.Crim.P. 11(a)(2) to charges of burglary, aggravated assault, and terrorizing. We conclude the eyewitness identification procedure employed in this case was not unnecessarily or impermissibly suggestive and Norrid’s statements to law enforcement were voluntary. We affirm.

I

[¶2] At approximately 10:00 p.m. on June 6, 1999, a man entered Eileen Olson’s apartment through a patio door and robbed her. According to Olson, the man was in her apartment for about ten to fifteen minutes. The man hit Olson, cut her with a knife, and threatened to kill her. Olson described her assailant as a 45 year old white male wearing a baseball hat, a dark plaid shirt, and blue jeans. Olson was treated for her injuries at a Fargo hospital, where police officers showed her a picture of Norrid, a suspect they had detained and photographed near her apartment. Olson did not have her glasses at the hospital, and she was unable to positively identify Norrid as her assailant. After officers retrieved her glasses from her apartment, she was still unable to positively identify Norrid as her assailant, and she indicated “it was hard for me to look at those pictures cause my glasses were so bent out of shape.” At approximately 12:30 a.m., Olson was taken to a location near the scene of the crime to personally view Norrid. Olson indicated “[tjhey put a spot light on him and asked me if that was the man that had assaulted me. And I said I was 99 percent sure, I said I just — I just — I hated to think that I would get an innocent man or anything and I wanted to stay and make sure. So we sat for a long time until I was positive it was him.”

[¶ 3] Prior to Olson’s identification of Norrid as her assailant, police officers detained him and gave him warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). After Olson identified Norrid, he was taken to the police station at approximately 3:00 a.m. and again given Miranda warnings. Detective Jim LeDoux interviewed Norrid at the police station. Norrid initially denied involvement in the incident, but at 6:15 a.m., he signed a written statement implicating himself in the incident.

[¶ 4] The State charged Norrid with burglary, aggravated assault, and terrorizing. Norrid moved to suppress Olson’s identification of him, arguing it was unduly suggestive and violated his due process rights under the Fourteenth Amendment of the United States Constitution. Norrid also moved to suppress statements he made to police officers, arguing the statements were extracted through deception and coercion and violated his privilege against self-incrimination under the Fifth and Fourteenth Amendments. The trial court denied Norrid’s motions. Norrid entered conditional pleas of guilty to the charges, reserving his right on appeal to review the trial court’s denial of his motions to suppress.

II

[¶ 5] In State v. Sabinash, 1998 ND 32, ¶ 8, 574 N.W.2d 827 (citations omitted), we outlined our standard.of review of a trial court’s denial of a suppression motion:

The trial court’s disposition of a motion to suppress will not be reversed if, after conflicts in the testimony are resolved in favor of affirmance, there is sufficient competent evidence fairly capable of supporting the trial court’s findings, and the decision is not contrary to the manifest weight of the evidence. That standard of review recognizes the importance of the trial court’s opportunity to observe the witnesses and assess their credibility, and we “accord great deference to its decision in suppression matters.”

III

[¶ 6] Norrid argues Olson’s identification of him violated his due process rights. He argues Olson’s identification of him was not reliable and was inadmissible as evidence, because it was made in a suggestive atmosphere and the State failed to prove it was reliable under the totality, of circumstances.

A

[¶ 7] Although an eyewitness identification is powerful and compelling evidence in a criminal prosecution, identification evidence may be riddled with innumerable dangers and variables which may seriously impinge a fair trial. See 2 Wayne R. LaFave, et al., Criminal Procedure § 7.1 (2nd ed.1999). In United States v. Wade, 388 U.S. 218, 228-29, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (footnotes omitted), the United States Supreme Court described the perils of eyewitness identifications:

The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification. Mr. Justice Frankfurter once said: “What is the worth of identification testimony even when uncontra-dicted? The identification of strangers is proverbially untrustworthy. The hazards of such testimony are established by a formidable number of instances in the records of English and American trials. These instances are recent — not due to the brutalities of ancient criminal procedure.” The Case of Sacco and Vanzetti 30 (1927). A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification. A commentator has observed that “[t]he influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor — perhaps it is responsible for more such errors than all other factors combined.”
Moreover, “[i]t is a matter of common experience that, once a witness has picked out the accused at the line-up, he is not likely to go back on his word later on, so that in practice the issue of identity may (in the absence of other relevant evidence) for all practical purposes be determined there and then, before the trial”

In Wade, at 237-38, 87 S.Ct. 1926, the Court held the Sixth Amendment guarantees an accused the right to counsel at a post-indictment lineup, and the absence of counsel at such a lineup renders trial testimony about the lineup identification inadmissible. See also Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).

[¶ 8] In Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), a companion case to Wade and Gilbert, the Court held identification testimony must be suppressed if, under the totality of the circumstances, the procedure for identification “was so unnecessarily suggestive and conducive to irreparable mistaken identification” to constitute a denial of due process. In Stovall, at 295, 87 S.Ct. 1967, a victim of a stabbing was hospitalized for major surgery to save her life, and the defendant was arrested for the offense and brought to the victim’s hospital room for a single-person show up. As the Court explained, the defendant was the only Negro in the room and was handcuffed to one of five police officers who, with two members of the District Attorney’s office, brought the defendant to the hospital room. Id. From her hospital bed, the victim identified the defendant after being asked by an officer whether he “ “was the man’ ” and after the defendant repeated a “ ‘few words for voice identification.’ ” Id. At trial, the victim and the police officers testified about the victim’s identification of the defendant in the hospital room, and the victim also made an in-court identification of the defendant. Id. The Court condemned “[t]he practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup,” but concluded, under the totality of the circumstances, the immediate hospital identification was imperative. Id. at 302, 87 S.Ct. 1967. The Court said the victim was the only person who could exonerate the defendant; the hospital was not far from the jail; no one knew how long the victim might live; and, faced with the responsibility of identifying the attacker, the need for immediate action, and the knowledge the victim could not visit the jail, the police followed the only feasible procedure and took the defendant to the hospital room. Id.

[¶ 9] Since Stovall, the Court has explained that, when the issue is whether a witness at an earlier identification can identify the defendant at trial, the analysis focuses on whether the prior identification was “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). In Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the Court recognized that, while the phrase “substantial likelihood of irreparable misidentification” was coined as the standard for deciding the admissibility of an in-court identification in the wake of a suggestive out-of-court identification, the phrase works equally well, with the deletion of “irreparable,” as the standard for the admissibility of testimony concerning an out-of-court identification.

B

[¶ 10] Under the Stovall due process test, the determination of the admissibility of an identification involves a two-pronged analysis of (1) whether the identification procedure is impermissibly suggestive, and (2) if so, whether the identification nevertheless is reliable under the totality of the circumstances. See Manson v. Brathivaite, 432 U.S. 98, 109-14, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Biggers, 409 U.S. at 198-99, 93 S.Ct. 375; Simmons, 390 U.S. at 384-85, 88 S.Ct. 967. See also State v. Syvertson, 1999 ND 137, ¶¶ 26-27, 597 N.W.2d 644, cert. denied, — U.S.-, 120 S.Ct. 383, 145 L.Ed.2d 299 (1999); State v. Packineau, 423 N.W.2d 148, 150 (N.D.1988). See generally 2 La-Fave at § 7.4 et seq. The defendant has the burden of proving the identification procedure is impermissibly suggestive, and the State must then show the identification is reliable under the totality of the circumstances. Packineau, at 150.

[¶ 11] The “suggestive” prong considers whether the identification procedure is “unnecessarily or impermissibly suggestive.” See United States v. King, 148 F.3d 968, 970 (8th Cir.1998); United States v. Funches, 84 F.3d 249, 253 (7th Cir.1996); United States v. Watson, 76 F.3d 4, 6 (1st Cir.1996); United States v. Sleet, 54 F.3d 303, 309 (7th Cir.1995); United States v. Bautista, 23 F.3d 726, 729 (2nd Cir.1994); Johnson v. Dugger, 817 F.2d 726, 729 (11th Cir.1987); United States v. Henderson, 719 F.2d 934, 936-38 (8th Cir.1983). See generally 2 LaFave, at § 7.4(b). Professor LaFave explains the “unnecessarily or impermissibly suggestive” prong can be separated into two inquiries: (1) whether the identification is suggestive, and (2) whether there is a good reason for not using a less suggestive procedure. 2 La-Fave at § 7.4(b). Under the “suggestiveness” inquiry, the practice of showing suspects singly and not as part of a lineup is widely condemned. E.g., Stovall, 388 U.S. at 302, 87 S.Ct. 1967. See 2 LaFave at §§ 7.4(b) and (f). Even a multi-person lineup or a photographic array may be suggestive. See Foster v. California, 394 U.S. 440, 443, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969); Simmons, 390 U.S. at 383, 88 S.Ct. 967.

[¶ 12] If a suspect is shown singly in a “suggestive” manner, the inquiry then turns to whether the showup is “unnecessarily or impermissibly” suggestive and looks at factors like emergency situations where a victim may be facing imminent death, Stovall, 388 U.S. at 302, 87 S.Ct. 1967, or other exigent circumstances like quickly apprehending and identifying a perpetrator, or moving the investigation to other suspects. Simmons, 390 U.S. at 384-85, 88 S.Ct. 967. See, e.g., King, 148 F.3d at 970 (quick on-the-scene identification essential to free innocent suspects and inform police if further investigation necessary); Funches, 84 F.3d at 254 (showup allows identification before suspect can alter appearance and while witness’s memory fresh; permits quick release of innocent persons). See generally LaFave at § 7.4(b) and (f).

[¶ 13] Under the due process formulation emanating from Stovall, even if an identification procedure is unnecessarily or impermissibly suggestive, there is no due process violation requiring exclusion of identification evidence if the identification is reliable under the totality of the circumstances and the factors outlined in Manson, 432 U.S. at 114, 97 S.Ct. 2243 and Biggers, 409 U.S. at 199-200, 93 S.Ct. 375. See Packineau, 423 N.W.2d at 150. See generally 2 LaFave, at § 7.4(c). In Manson, at 114, 97 S.Ct. 2243, the United States Supreme Court explained “reliability is the linchpin in determining the admissibility of identification testimony,” and outlined the following factors from Big-gers, at 199-200, 93 S.Ct. 375, for evaluating the reliability of an identification:

[T]he opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.

C

[¶ 14] We apply the due process formulation emanating from Stovall to the trial court’s denial of Norrid’s motion to suppress evidence about Olson’s identification of him. See Syvertson, 1999 ND 187, ¶¶ 26-27, 697 N.W.2d 644; Packineau, 423 N.W.2d at 150. The trial court ruled:

Well, I’ll begin with the motion in its— the aspect of the one-on-one identification of the Defendant by the alleged victim in this case. This is — has been set out in Neil vs. Biggers five factors which the Court should use to evaluate the likelihood of misidentifieation and reliability of the identification. Number one, the opportunity of the witness to view the criminal act at the time of the crime. Number two, the witnesses (sic) degree of attention. Number three, the accuracy of the witness’ prior description of the criminal. Four, the level of certainty demonstrated by the witness at the confrontation and five, the length of time between the crime and the confrontation. And those wouldn’t necessarily address the one-on-one, but really just the identification by the alleged victim of the Defendant. The Court clearly would have preferred a different scenario for having this alleged victim make her identification. It does seem to me that the setting was suggestive in that the Defendant was in handcuffs and he was surrounded by police and there was a spotlight shining on him and no other options were presented to her. But if I follow the Biggers analysis of reliability of the I.D., in spite of the fact that she really no other options before her, it appeared to the Court that she did have a very good opportunity to view the Defendant during the commission of the crime. Her apartment was well lit. She seemed to have a high degree of attention. The description that she gave to the officers at the time she was interviewed matched in every detail except the jacket that he was wearing. So there was a discrepancy with regard to the shirt, but the jeans, the white tennis shoes, the black hat, the age and sex were all the same.
The level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation, there appeared to be a short period of time between the commission of crime and the confrontation, which the Court views to be significant. In the courtroom yesterday, the Court had an opportunity to observe the demeanor of the witness or the alleged victim and she appeared credible, she appeared to have hesitated for the reason that she did not want to make a misidentifieation. She kept saying that she wanted to be sure. When she arrived, she said she was 99 percent sure and then she waited 30 to 40 minutes before confirming that identification. I don’t believe that it had as much to do with her not having an idea — a clear idea that it was in fact the Defendant, but rather her wanting to be contentious [sic] about her identification. In any event, that was the impression the Court gleaned from her testimony yesterday. And so I feel on that basis that the reliability aspect of the confrontation has been met.
The officers testified yesterday afternoon at length about the reasons why the I.D. was set up the way it was and obviously they were concerned about having the right man and wanting to have the I.D. made as quickly as possible so that if there was a perpetrator loose on the street, that the man they had detained could be released and they would be able to then pursue someone else. So there were reasons why it occurred the way that it did. It’s just always better and it isn’t a perfect world but it always is better to have more. I think that their handling of that situation was not inappropriate, so the motion with respect to the identification of the Defendant by the alleged victim is denied.

[¶ 15] Although Norrid claims it is not entirely clear the trial court applied the correct analysis in deciding whether this showup was suggestive, the court’s decision states “it does seem to me that the setting was suggestive in that the defendant was in handcuffs and he was surrounded by police and there was a spotlight shining on him and no other options were presented” to the victim. The court effectively decided this showup was suggestive. However, that decision does not end the inquiry, which then turns to whether the identification was “unnecessarily or impermissibly” suggestive. The trial court examined the reasons why the identification was conducted in this manner, citing law enforcement concerns about apprehending the right person as quickly as possible so, if there was a perpetrator still at large, Norrid could be released and law enforcement could pursue the perpetrator. Similar reasons have generally sufficed to support a decision an identification was not unnecessarily suggestive. Simmons, 390 U.S. at 384-85, 88 S.Ct. 967; Stovall, 388 U.S. at 302, 87 S.Ct. 1967. See also King, 148 F.3d at 970; Watson, 76 F.3d at 6-7; Bautista, 23 F.3d at 730. See generally 2 LaFave at §§ 7.4(b) and (f).

[¶ 16] We caution that single-person showups generally should be avoided or used only when absolutely necessary in very limited circumstances. Stovall, 388 U.S. at 302, 87 S.Ct. 1967. See also State v. Azure, 243 N.W.2d 363, 365 (N.D.1976). Here, several law enforcement officers testified they were concerned about quickly apprehending the perpetrator of a crime involving the unauthorized nighttime entry into a victim’s home and the infliction of serious physical injuries. Giving deference to the trial court’s opportunity to assess the credibility of the witnesses, see Sabi-nash, 1998 ND 32, ¶ 8, 574 N.W.2d 827, we conclude the identification procedure employed in this case was not “unnecessarily or impermissibly” suggestive. Because we conclude the identification procedure was not unnecessarily or impermissibly suggestive, it is unnecessary to examine whether it was otherwise reliable under the totality of the circumstances. See Syvertson, 1999 ND 137, ¶ 29, 597 N.W.2d 644; Packineau, 423 N.W.2d at 151. We hold the trial court did not err in denying Norrid’s motion to suppress evidence of Olson’s identification of him.

IV

[¶ 17] Norrid argues the trial court erred in deciding any oral or written statements he made to Detective LeDoux were voluntary and admissible into evidence. Norrid argues those statements were not voluntary and were inadmissible as evidence against him, because he was intoxicated, very tired, and frightened, and his statements were made in a setting which indicated they were not the product of his free will.

[¶ 18] When a confession is challenged on due process grounds, the ultimate inquiry is whether the confession was voluntary. Sabinash, 1998 ND 32, ¶ 11, 574 N.W.2d 827. A confession is voluntary if it is a product of the defendant’s free choice rather than a product of coercion. Id. Coercion in and of itself does not invalidate a confession. Id. A confession is the product of coercion if the defendant’s will is overborne at the time the confession is given. Id.

[¶ 19] We use the totality-of-the-eircumstances test to examine voluntariness. Sabinash, 1998 ND 32, ¶ 12, 574 N.W.2d 827. Under that inquiry, we focus on two elements: (1) the characteristics and condition of the accused at the time of the confession, and (2) the details of the setting in which the confession was obtained with no one factor being determinative. Id. The first element focuses on the characteristics and condition of the accused including the age, sex, race, education level, physical and mental condition, and prior experience with police. Id. The second element includes duration and conditions of detention, police attitude toward the defendant, and adverse pressures that sap the accused’s powers of resistance or self control. Id.

[¶ 20] Here, the trial court decided:
And that takes us to the confession. The lack of voluntariness issue. The Court is required to examine the totality of the circumstances to determine whether there were diverse pressures, which would zap (sic) [an accused’s] powers of resistance or self control. There are many cases that address these voluntariness issues. In this particular case, the Defendant was Miran-dized, worst case scenario, twice. From the State’s standpoint, best case three times. The Court believes that he was Mirandized three times. I do believe Officer LeDoux when he — Detective Le-Doux when he said he gave the Defendant his Miranda rights before he began his questioning of him. He indicates that the time spent with him was approximately one and a half to two hours. Granted the Defendant was detained for a longer period of time. That the Court’s view is that the interrogation portion of the evening lasted in the range of one and a half to two hours. During that period of time, the Defendant did not ask for a lawyer, having understood that he did have the right to an attorney and the right to have one appointed if he could not afford one. That he had the right to stop the interrogation and not answer any questions. The Court is not convinced that he was intoxicated to the point where he could not understand what was happening. As I address the condition of the accused, it appears to me that he was tired, not intoxicated, but tired. The Court does not find that being tired alone would be a sufficient justification for my finding that he had been zapped (sic) of his powers of resistance or self control. We’re all tired at times. It does not necessarily cause a person to confess to a crime against his will. The mere fact of being tired. So I don’t think there’s anything about his condition other than tiredness which presented a problem for the Defendant. And I don’t think that alone is enough of a justification to throw out the confession. So even though — and it does appear to be a bare bones confession, it’s not my job to consider the contents at this time. It’s a motion to suppress that document. I find that the document — the confession can be admitted or at least I’m not suppressing it. So in that regard — that aspect of the motion is denied as well.

[¶ 21] Giving deference to the trial court’s opportunity to assess the credibility of the witnesses, see Sabinash, 1998 ND 32, ¶ 8, 574 N.W.2d 827, we conclude the court’s decision Norrid’s statements to Detective LeDoux were voluntary and admissible is not contrary to the manifest weight of the evidence. We conclude the trial court did not err in denying Norrid’s motion to suppress those statements.

V

[¶ 22] We affirm the judgment.

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

      . Norrid has not marshaled a separate state constitutional argument about the identification procedure, and we decide his claim under federal due process guidelines.

      . In Stovall, 388 U.S. at 296-301, 87 S.Ct. 1967, the Court refused to retroactively apply the right-to-counsel decisions of Wade and Gilbert. Since Stovall, the Court’s analysis of retroactive application of new rules for criminal prosecutions has been revised. See Griffith v. Kentucky, 479 U.S. 314, 320-28, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) (disapproving retroactivity analysis of Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) and Stovall).

      . Although Norrid has not challenged the factors for assessing reliability outlined in Manson and Biggers, we note scholars have expressed concern with the validity and application of those factors as indicators of reliability. See 2 LaFave, at § 7.4(c).

      . Even if a trial court decides evidence of an eyewitness identification is admissible, federal courts have generally endorsed a separate jury instruction, derived from United States v. Telfaire, 469 F.2d 552 (D.C.Cir.1972), on the issue of the identification. See, e.g., United States v. Tipton, 11 F.3d 602, 606 (6th Cir. 1993); United States v. Anderson, 739 F.2d 1254, 1257 (7th Cir.1984); United States v. Cain, 616 F.2d 1056, 1058 (8th Cir.1980). See generally 1A Kevin F. O'Malley, et ah, Federal Jury Practice and Instructions §§ 14.10-14.11 (5th ed.2000).


author: PER CURIAM.

text:
    2000 ND 99
    Randy PETERSON, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee.
    No. 20000031.
    Supreme Court of North Dakota.
    May 25, 2000.
    Rehearing Denied June 8, 2000.
    Randy Peterson, pro se.
    John C. Simonson, Special Assistant Attorney General, Fargo, for appellee.
   PER CURIAM.

[¶ 1] Randy Peterson appeals the judgment of the East Central Judicial District Court affirming the North Dakota Workers Compensation Bureau’s order dismissing his claim for benefits. The judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(5). The Bureau’s request for costs and fees on appeal is denied.

[¶ 2] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, WILLIAM

A. NEUMANN, MARY MUEHLEN MARING, CAROL RONNING KAPSNER, JJ., concur.


text:
    2000 ND 114
    Dean HOROB, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and Western, Inc., Respondent.
    No. 990348.
    Supreme Court of North Dakota.
    May 26, 2000.

      Kevin J. Chapman, McKennett Ste-nehjem Reierson Forsberg & Chapman, P.C., Williston, for claimant and appellant.
    Brent J. Edison, Special Assistant Attorney General, Bismarck, for appellee.
   KAPSNER, Justice.

[¶ 1] Dean Horob appealed a district court judgment affirming an order of the North Dakota Workers Compensation Bureau (“the Bureau”) requiring Horob to repay disability benefits he received for a work injury and forfeit all future benefits in connection with two work injuries. We affirm in part, reverse in part, and remand.

I

[¶ 2] While working for his father’s business, Western Construction, Horob fell from the roof of a building on March 3, 1975, and sustained a head injury. That injury resulted in a seizure disorder, but not in cognitive deficits. Horob’s seizures required a left temporal lobectomy in 1987. Horob has also required anti-seizure medications. The Bureau accepted liability for the 1975 injury and paid Horob’s medical expenses.

[¶ 3] Horob graduated from college in 1978 and worked for Western Construction until he took over the business in 1988, and incorporated it as Western, Inc. On March 14, 1995, Horob fell from a roof, sustaining a head injury resulting in cognitive impairments. The Bureau accepted liability, and paid medical and disability benefits.

[¶ 4] On December 20, 1996, the Bureau mailed Horob a notice of intention to discontinue or reduce benefits, informing Ho-rob his temporary total disability benefits for the 1995 injury would be “DISCONTINUED ON 1-10-97 DUE TO FALSE STATEMENT AND FAILURE TO REPORT INCOME.” On February 25, 1997, the Bureau issued an order in connection with Horob’s claim on the 1995 injury. In that order, the Bureau found: l)“Disability benefits were paid from March 14,1995, through January 10, 1997;” 2) “Claimant has been working at his self-employment business, Western Inc., since June 23, 1995, and failed to report his earnings to the Bureau;” 3) Horob “made a false statement regarding his return-to-work status and willfully failed to report his earnings to the Bureau;” and 4) Horob “received an overpayment of disability benefits in the amount of $15,211.85, for the time period of June 23, 1995, through January 10, 1997.” The Bureau ordered Horob “must repay the sum of $15,211.85 for disability benefits paid from June 23, 1995, through January 10,1997,” and ordered he “forfeits any additional workers’ compensation benefits in connection with this claim.” Horob requested reconsideration.

5] On April 13, 1997, Horob crashed a vehicle into the Williston True Value Store and suffered a number of injuries. Horob filed a reapplication for benefits in connection with his claim for the 1975 injury, asserting the accident was caused by a seizure related to the 1975 work injury. On September 17, 1997, the Bureau issued an order denying Horob’s reapplication. That order listed the claim numbers for both Horob’s 1975 claim (No. 75 218 176 T23) and his 1995 claim (No. 95 446 418 T23). In that order, the Bureau found Horob’s 1975 “work injury was consolidated into the claimant’s compensable work injury of March 14, 1995,” Horob “has forfeited all further workers’ compensation benefits in connection with his consolidated work injuries to his head,” and ruled Ho-rob is not “entitled to any workers’ compensation benefits in connection with his reapplication.”

[¶ 6] On November 14, 1997, the Bureau issued an amended order denying further benefits and ordering repayment of benefits. In it, the Bureau again referred to the claim numbers for the claims Horob filed for both the 1975 and 1995 work injuries. The Bureau found Horob had been working and receiving income which he had not reported to the Bureau. The Bureau found Horob’s 1975 and 1995 work injuries were “consolidated ... in light of the ongoing treatment for his head injuries arising from the two accidents,” and Horob “made a false statement regarding his return-to-work status and willfully failed to report his earnings to the Bureau.” The Bureau ordered that Horob “must repay the sum of $15,211.85 for disability benefits paid from June 23, 1995, through January 10, 1997” and “forfeits any additional workers’ compensation benefits in connection with the consolidated claims of 75 218 176 T23, and 95 446 418 T23.”

[¶ 7] Horob requested a formal hearing. A hearing was held on August 12, 1998, before an administrative law judge (“ALJ”). The ALJ found Horob injured his head in falling from a roof on March 14, 1995, for which the Bureau accepted liability and paid disability benefits from March 14, 1995, through January 10, 1997. The ALJ also found:

7. Following the Investigation Referral issued by the Bureau on August 8, 1996, the Claimant was observed operating a forklift; performing landscaping; operating a skidster; concrete finishing work; working with sheet metal; working on garage doors; as well as performing other physical work for Western, Inc.. (Exhibit B65-67). The Claimant continued to perform bookkeeping work for his business and deposits were made by the Claimant from April 1995 through September 1996 totaling $124,-711.97. (Exhibit B73 and B3 through B61). The Claimant testified to taking cash from the deposit transactions at hearing.
8. Exhibits B65-B67 reveal that the Claimant performed work after March 14, 1995, the date of Claimant’s work injury. Company deposit slips show that Claimant was paid by his customers after his March 14, 1995 work injury. (Exhibit B3-B61).
9. The Claimant signed work confirmation cards between June 23, 1995 and December 16, 1996 indicating he has not returned to work and has not done any work for pay or not. (Exhibits BIO, B14, B17, B18, B24, B26, B30, B32, B62, B69).
10. The Claimant completed a verification of ongoing entitlement to benefits form supplied by the Bureau on August 23, 1996. A fraud warning was attached to the verification form. (Exhibit B52). The Claimant reported no work other than voluntary work for friends. (Exhiit B52).
[¶ 8] The ALJ concluded:
I. Whether Claimant Made Willful and Material False Statements Regarding His Work Activities and Receipt of Income.
C. By the greater weight of the evidence, the Claimant has failed to report work activities and also income from work activities in violation of N.D.C.C., § 65-05-08.
D. By the greater weight of the evidence, the Claimant has willfully failed to notify the Bureau of work or other activities as required by subsection 3 of § 65-05-08. The Claimant has also failed to report the receipt of income from work. Claimant further argues that he does not understand his actions and that because of his reduced capacity, he cannot formulate the intent to defraud the Bureau. However, as to the question of whether Claimant has the capacity to make a purported false statement to the Bureau, the evidence shows that Claimant clearly does. The only discrepancies are between what the Claimant said and what he was actually doing.
11. Whether the Bureau Erred in Consolidating Claim No. 75 218176 T23 and Claim No. 95 446418 T23.
C. By the greater weight of the evidence, the Bureau was not in error about consolidating Claim No. 75 218176 T23 and Claim No. 95 446418 T23 as the two (2) claims share many related indi-cia. Furthermore, by the greater weight of the evidence, the false statements of the Claimant referred to earlier, are relevant to both Claim No. 75 218176 T23 and 95 446418 T23....

[¶ 9] The ALJ recommended an order requiring Horob to repay $15,211.85 for disability benefits paid and that he “forfeit any additional workers’ compensation benefits in connection with the consolidated claims of 75 218176 T23 and 95 446418 T23.”

[¶ 10] The Bureau adopted the ALJ’s recommended findings of fact and added additional findings of fact that, with a purposeful state of mind, Horob “made false statements about his work activities and receipt of income” which “were intentional, not inadvertent,” and “were ‘willful’ under N.D.C.C. § 65-05-33.” The Bureau also found Horob’s “false statements and failure to report income could have misled the Bureau or medical experts in a determination of the claim” and they “were ‘material’ under N.D.C.C. § 65-05-33.” The Bureau adopted the ALJ’s recommended conclusions of law and order as its order on October 14, 1998. Horob appealed to the district court, which affirmed the Bureau’s order. Horob appealed the district court’s judgment.

II

[¶ 11] On appeal, we review the Bureau’s decision, not the district court’s decision. Siewert v. North Dakota Workers Comp. Bureau, 2000 ND 33, ¶ 18, 606 N.W.2d 501. Under N.D.C.C. §§ 28-32-19 and 28-32-21, we affirm an administrative agency decision unless its findings of fact are not supported by a preponderance of the evidence, its conclusions of law are not supported by its findings of fact, the decision is not supported by the conclusions of law, the decision is not in accordance with the law or violates the appellant’s constitutional rights, or the agency’s rules or procedures deprived the appellant of a fair hearing. Id. Our review of an agency’s findings of fact is limited to determining if a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence in the record. Id. at ¶ 19. Questions of law are fully renewable on appeal from a Bureau decision. Witcher v. North Dakota Workers Comp. Bureau, 1999 ND 225, ¶ 8, 602 N.W.2d 704.

[¶ 12] While the parties have presented a number of issues, we deem two issues to be dispositive: 1) whether the Bureau’s false statements findings are supported by the evidence, and 2) whether the Bureau properly ordered forfeiture of all benefits in connection with both Horob’s 1975 and 1995 work-related injuries.

A

[¶ 13] Horob contends the Bureau’s false statements findings are not supported by the evidence, which, he asserts, proves he did not have the mental ability to defraud the Bureau, and contends the Bureau disregarded medical evidence favorable to him.

[¶ 14] Section 65-05-33, N.D.C.C., provides a claimant who willfully makes a false statement or who receives disability benefits and willfully fails to notify the Bureau of work or income from work “shall reimburse the bureau for any benefits paid based upon the ... false statement and ... shall forfeit any additional benefits relative to that injury.” The legislative intent in N.D.C.C. § 65-05-33 was to create a penalty for anyone who accepts disability benefits for a period of time in which that person is actually working. Hayden v. North Dakota Workers Comp. Bureau, 447 N.W.2d 489, 496 (N.D. 1989). “To trigger the statutory consequences, a false statement must be intentional, not inadvertent, and material, not peripheral.” F.O.E. Aerie 2337 v. North Dakota Workers Comp. Bureau, 464 N.W.2d 197, 201 (N.D.1990). “Thus, once it is proved a false statement has been made, the Bureau must then prove the act of making the false statement was done intentionally.” Hausauer v. North Dakota Workers Comp. Bureau, 1997 ND 243, ¶ 14, 572 N.W.2d 426. “The Bureau must prove the claimant’s state of mind was purposeful in making the false statement.” Id. “A state of mind can rarely be proven directly and must usually be inferred from conduct and circumstantial evidence.” Dean v. North Dakota Workers Comp. Bureau, 1997 ND 165,. ¶ 20, 567 N.W.2d 626.

[¶ 15] “A false statement may be sufficiently material to support forfeiture of future benefits, even though it was not sufficiently material to mislead the Bureau into paying initial benefits or to require the reimbursement of initial benefits.” Dean v. North Dakota Workers Comp. Bureau, 1997 ND 165, ¶ 15, 567 N.W.2d 626. “If the Bureau is seeking reimbursement for benefits paid, materiality requires the Bureau to prove the false claim or false statement caused the benefits to be paid in error.” Hausauer v. North Dakota Workers Comp. Bureau, 1997 ND 243, ¶ 17, 572 N.W.2d 426. “If the Bureau is seeking forfeiture of future benefits, a false claim or false statement is sufficiently material if it is a statement which could have misled the Bureau or medical experts in a determination of the claim.” Id. at ¶ 18.

[¶ 16] Horob does not challenge the Bureau’s findings that he made false statements, but contends he lacked the “mental ability to defraud the Bureau,” arguing:

It is undisputed that [Horob] suffered significant cognitive deficits as a result of the 1995 injury. (R. at 00 113.) [Ho-rob] does not have the mental capacity to “willfully” make a false statement to the Bureau; or to willfully fail to report income to the Bureau. Dean presented credible medical evidence on this issue, but the Bureau ignored it and, in fact, did not even address the medical evidence in its findings of fact and conclusions of law. (R. at 00459-00475.) (App. at 4-20).

[¶ 17] In a June 8, 1998, letter, Timothy L. Patterson, D.O., said “with a reasonable degree of medical certainty that [Horob] could not willfully defraud the bureau after his 1995 fall.” Patterson reported “tests demonstrate a significant neurocognitive impairment.” Patterson further said: “The term ‘willfully’ would note some forethought and intention to which he would be able to rationalize all aspects of his actions. I don’t think Dean is capable of this.” Horob also relies on testimony by a social worker, Horob’s sister, and Horob, as showing Horob “does not understand the consequences of his actions.”

[¶ 18] The ALJ and the Bureau addressed Horob’s arguments about his inability to defraud the Bureau in Conclusion of Law I.D.:

D. By the greater weight of the evidence, the Claimant has willfully failed to notify the Bureau of work or other activities as required by subsection 3 of § 65-05-08. The Claimant has also failed to report the receipt of income from work. Claimant further argues that he does not understand his actions and that because of his reduced capacity, he cannot formulate the intent to defraud the Bureau. However, as to the question of whether Claimant has the capacity to make a purported false statement to the Bureau, the evidence shows that Claimant clearly does. The only discrepancies are between what the Claimant said and what he was actually doing.

[¶ 19] Although medical evidence and testimony by a social worker, Horob’s sister, and Horob provided circumstantial evidence of inability to act willfully, there was also circumstantial evidence indicating Horob had the ability to act willfully. While receiving disability benefits, Horob operated a forklift, did landscaping, operated a Bobcat, did concrete finishing, worked with sheet metal, worked on garage doors, did bookkeeping work for his business, and made bank deposits. Horob took cash when making business bank deposits. Horob prepared job proposals and financial reports, handled the finances and payroll, and supervised employees. Horob testified he “was doing some work,” but he “was not getting paid.” Horob testified he understood he “would be required to report to the Bureau any work activities or income” and, when filling out return-to-work cards, he understood the Bureau wanted to know if he “were out there doing any work” or “earning income from work.” Horob testified about differences in his work before and after his 1995 injury:

[A]fter my ’95 fall, I felt like I was putting in about 20 percent physical work and 80 percent desk work ... And before my ’95 accident, it was almost the other way around. It was 20 percent paperwork and then 80 percent physical work.

Horob testified he understood the Bureau did not want him on buildings because he might have a seizure, that he was “on buildings” when he was “on disability benefits,” and he “didn’t want [the Bureau] to know.”

[¶ 20] “This Court has often said the Bureau must adequately explain its disregard of medical evidence favorable to a claimant.” Loberg v. North Dakota Workers Comp. Bureau, 1998 ND 64, ¶ 11, 575 N.W.2d 221. The Bureau should have stated more specifically why it discounted medical evidence in Horob’s favor. However, there is substantial evidence about the nature and extent of Horob’s work activities, from which a reasoning mind could reasonably find, as the Bureau did, that Horob had the capacity to make false statements, did make false statements, and made the false statements purposefully, intentionally, not inadvertently, i.e., willfully. We conclude a reasoning mind reasonably could have determined the Bureau’s false statement findings were proven by the weight of the evidence in the record.

B

[¶ 21] Horob argues the Bureau erred in ordering reimbursement of disability benefits he received as a result of his 1995 head injury, as well as ordering forfeiture of all future benefits in connection with both his 1995 injury and his 1975 injury.

[¶ 22] With regard to reimbursement of disability benefits paid in connection with Horob’s 1995 injury, the false statements were clearly material, as the false statements caused disability benefits to be paid in error. See Hausauer v. North Dakota Workers Comp. Bureau, 1997 ND 243, ¶ 17, 572 N.W.2d 426. The false statements were also material with regard to future disability benefits in connection with the 1995 injury for which Horob received disability benefits, as they could have misled the Bureau in a determination of the claim. Id. at ¶ 18.

[¶ 23] Horob’s false statements do not, however, justify forfeiture of all future benefits in connection with his 1975 injury resulting in his seizure disorder. The false statements were not material to future benefits in connection with the 1975 injury, as they could not “have misled the Bureau or medical experts in a determination of the claim,” Hausauer, 1997 ND 243, ¶ 18, 572 N.W.2d 426, because they had nothing to do with his continuing need for medical expense benefits, such as anti-seizure medication, necessitated by the 1975 injury resulting in his seizure disorder.

[¶ 24] Horob has not shown the Bureau erred in consolidating the 1975 and 1995 claims for administrative convenience. However, the Bureau could not use the consolidation to order forfeiture of benefits for both injuries for false statements material to only one. An “injury is the result of the accident, and includes all the effects of the accident.... The injury is the state of facts which entitles the claimant to compensation.” Schmidt v. North Dakota Workmen’s Comp. Bureau, 73 N.D. 245, 252, 13 N.W.2d 610, 614 (1943). “Where an applicant is injured in two or more separate and distinct accidents he has the right to make application for each injury.” Id. Section 65-05-33, N.D.C.C., is cast in terms of injuries, not claims, files, or the like. Section 65-05-33 provides a claimant who violates that statute “shall reimburse the bureau for any benefits paid based upon the false claim or false statement ... and shall forfeit any additional benefits relative to that injury.” (Emphasis added). The statute does not require forfeiture of future benefits for any other injuries. We conclude the Bureau erred in ordering Horob forfeited all future benefits in connection with his seizure disorder resulting from his 1975 work injury.

Ill

[¶ 25] The judgment is affirmed to the extent it affirmed the Bureau’s order for reimbursement of disability benefits paid and forfeiture of future benefits in connection with Horob’s 1995 work injury, reversed to the extent it affirmed the Bureau’s order for forfeiture of future medical benefits in connection with Horob’s 1975 work injury, and the matter is remanded for entry of a judgment directing the Bureau to reinstate medical benefits in connection with Horob’s 1975 injury and to determine Horob’s claim the April 13, 1997, car accident was caused by a seizure related to his 1975 injury, requiring payment of further benefits.

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

      . The ALJ found Horob was involved in a car accident in which he crashed into the Willi-ston True Value Store on April 13, 1997, and that Horob contended the accident was caused by a seizure related to Horob’s 1975 injury. The ALJ also found the Bureau had issued an order denying Horob's reapplication because it claimed the crash was caused by Horob’s 1995 brain injury, not the 1975 injury. The recitation of conflicting contentions does not constitute a finding. Vernon v. North Dakota Workers Comp. Bur., 1999 ND 153, ¶ 10, 598 N.W.2d 139. The ALJ did not make a finding on this issue.