Best if printed in landscape.

Examples of Torts

The previous section introduced some general principles of tort law; this section presents several examples of torts.

Trespass

• The person with the right to possess real property has the right to the exclusive use of property; that is, those with the right to possess property can exclude others from being on the land.
  • "One who intentionally and without a consensual or other privilege is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally:
    "(a) enters land in the possession of the other, or causes a thing or a third person to do so; or
    "(b) remains on the land; or
    "(c) fails to remove from the land a thing which he is under a duty to remove. Hector v. Metro Centers, Inc., 498 N.W.2d 113 (N.D. 1993)
• Note that a trespass does not need to involve harm or damage to give rise to liability; the entrant is legally responsible for merely being on the property without permission.

• The right to exclude others from your land includes the right of a tenant to exclude the landowner from the leased property; that is, the lease agreement transfers the right to possess the property to the tenant, and during the lease, the tenant can exclude the landowner from entering onto the leased property.
• The right to exclude others from your property extends "from the center of the earth to the far-reaches of the sky;"
  • I can be trespassing on your land without even touching the surface of the land. If I enter into the space above your land, I have trespassed. For example, if I have thrown a ball across your land, I have trespassed.
• Eviction is the legal process for removing a trespasser; e.g., N.D.C.C. chap. 33-06; also see N.D.C.C. §32-04-04. The owner may also be entitled to be compensated by the trespasser, see N.D.C.C. §§32-03-21 and -22.

• Exceptions -- when can someone enter onto someone else's land, or into the space above the land, and not be considered trespassing?
  • Landowner can enter on leased land to:
    • collect rent
    • make repairs
    • exercise a reserved right (such as hunting) (e.g., N.D.C.C. §47-16-07.3)

• Airplanes
  • N.D.C.C. §2-03-03. Ownership of space. The ownership of the space above the lands and waters of this state is declared to be vested in the several owners of the surface beneath, subject to the right of flight described in section 2-03-04.
  • N.D.C.C. §2-03-04. Lawfulness of flight. Flight in aircraft over the lands and waters of this state is lawful, unless at such a low altitude as to interfere with the then existing use to which the land or water, or the space over the land or water is put by the owner, or unless so conducted as to be imminently dangerous to persons or property lawfully on the land or water beneath. The landing of an aircraft on the lands or waters of another, without his consent, is unlawful except in the case of a forced landing. For damages caused by a forced landing, however, the owner or lessee of the aircraft or the airman is liable, as provided in section 2-03-05.
  • Certainly an example of where the law had to change in response to changing technology. The centuries-old notion of the surface owner possessing "from the center of the earth to the sky" had to be reassessed (and redefined) during the past century.

• Hunting -- may I hunt on someone's land without their permission?
  • In North Dakota: hunting is assumed a privilege (i.e., I can hunt on anyone's land during hunting season without having to ask permission) unless the landowner or tenant has revoked that privilege by "posting the land." (N.D.C.C. §20.1-01-18).
  • In South Dakota and other states: 
    • [¶10] SDCL 41-9-1 provides: Except as provided in §41-9-2, no person may fish, hunt or trap upon any private land not his own or in his possession without permission from the owner or lessee of such land. A violation of this section is a Class 2 misdemeanor and is subject to § 41-9-8.
      Hunt (or hunting) is defined as including "shooting, shooting at, pursuing, taking, attempting to take, catching or killing any wild animal or animals." SDCL 41-1-1(14). Thus shooting or shooting at a pheasant flying over private property constitutes hunting and is prohibited under SDCL 41-9-1 unless the hunter owns or possesses the land or has the permission of the owner or lessee.
      [¶11] By shooting at a bird flying over Weber's land Rumpca was engaged in hunting, violated SDCL 41-9-1, and entered Weber's private property. One of the consequences of that action is the revocation of hunting privileges for a year. State v. Rumpca, 2002 SD 124

• Mineral exploration/development -- if you own the surface rights and I own the mineral rights, may I enter onto your land to explore for the minerals?  The general answer is yes, but ...
  • N.D.C.C. §38-02-10. Owner or occupant of surface may demand security from miner.
  • N.D.C.C. §38-08.1-04.1. Exploration permit. ... 4. The permitholder (owner or developer of the minerals) shall notify the operator of the land at least three days prior to the commencement of any geophysical exploration activity, unless waived by mutual agreement of both parties. The notice must include the approximate time schedule and the location of the planned activity.
  • N.D.C.C. §38-11.1-04. Damage and disruption payments. The mineral developer shall pay the surface owner a sum of money equal to the amount of damages sustained by the surface owner and the surface owner's tenant, if any, for loss of agricultural production and income, lost land value, lost use of and access to the surface owner's land, and lost value of improvements caused by drilling operations...
  • N.D.C.C. §38-18-06. Written notice and consent required before permit to surface mine land may be issued... 5. If the mineral owner ... is unable to obtain the surface owner's consent, the mineral owner ... may bring an action in district court ... [and] upon a showing to the satisfaction of the court that the surface owner will be adequately compensated for lost production, lost land value, and loss of the value of improvements due to the mining activity, the court shall issue an order which will authorize the public service commission to issue a permit to surface mine land without the consent [of the surface owner].

Nuisance -- I may not interfere with your use and your enjoyment of your property (N.D.C.C. §42-01-01); e.g., odor, noise, dust, lights.

• N.D.C.C. §42-01-01. Nuisance - Definition. A nuisance consists in unlawfully doing an act or omitting to perform a duty, which act or omission: 

1. Annoys, injures, or endangers the comfort, repose, health, or safety of others;

2. Offends decency;

3. Unlawfully interferes with, obstructs or tends to obstruct, or renders dangerous for passage, any lake, navigable river, bay, stream, canal, basin, public park, square, street, or highway; or

4. In any way renders other persons insecure in life or in the use of property.

 

• Every interference with your neighbor will not be a nuisance.

• Private nuisance v. public nuisance
  • N.D.C.C. §42-01-02. Private nuisance - Definition. A private nuisance is one which affects a single individual or a determinate number of persons in the enjoyment of some private right not common to the public.
  • N.D.C.C. §42-01-06. Public nuisance - Definition. A public nuisance is one which at the same time affects an entire community or neighborhood or any considerable number of persons, although the extent of the annoyance or damage inflicted upon the individuals may be unequal.
• Why distinguish between a private and public nuisance?
  • See Shapiro, E.F. and D.K. McKnight. Minnesota’s Public and Private Nuisance Laws. Information Brief, Minnesota House of Representatives, Research Department, 600 State Office Building, St. Paul, MN 55155, October 2000 at http://www.house.leg.state.mn.us/hrd/pubs/nuislaws.pdf.
  • This article does not directly state the difference but it does make some statements that indicate the difference. HINT -- look at the section titled "Who may bring an action in court to stop a nuisance activity from continuing?" on page 4, and at the section titled "Private Nuisance Actions" on page 11.
  • Also see Frandsen v. Mayer, 155 N.W.2d 294 (N.D. 1967) and N.D.C.C. §42-01-08.
    • "A private person may maintain an action for a public nuisance if it is specially injurious to that person or that person's property, but not otherwise."
  • The answer to the question (why distinguish between a private nuisance and a public nuisance) may be best explained as "legal action (e.g., a lawsuit) against a public nuisance should be initiated by a government entity; legal action against a private nuisance should be initiated by the individuals who are adversely affected by the nuisance." 
    • When a lawsuit alleging nuisance is initiated, the defendant may argue that the wrong party is bringing the lawsuit. The defendant's argument could be paraphrased as “this court case was initiated by an individual as a private nuisance, whereas this activity (if it is a nuisance) would be a public nuisance so the lawsuit should have been initiated by the government.  Therefore your honor, dismiss this private nuisance lawsuit.”  The defendant can raise the opposite argument if the nuisance suit is initiated by the government as a public nuisance. 
    • The plaintiff then needs to argue how the facts of the case align with the definitions of a public nuisance or a private nuisance, and that the correct party has filed the lawsuit.

    Bottom line – the first legal issues in some nuisance cases is whether the activity might be a private nuisance or a public nuisance, and did the correct party initiate the legal action

• Must I stop my activity that is a nuisance to you? 
  • If you were on your land and then I started my nuisance on my land, I generally have to stop my activity; that is, subsequent nuisances must be abated.
  • But if I was on my land and conducting my activity and then you moved onto the adjacent land, can you complain that my ongoing activity is a nuisance? The answer is not as clear. In some cases, courts have ruled the activity does not need to stop. See Rassier v. Houim, 488 N.W.2d 635 (N.D. 1992) wherein the court wrote
    • "In Jerry Harmon Motors , supra , we recognized the applicability of the coming-to-the-nuisance doctrine to a nuisance claim under section 42-01-01, NDCC. We also indicated that the principle is one of the factors considered in determining whether a nuisance exists, i.e., whether the defendant created a condition which unreasonably interfered with plaintiff's use of property. We noted that anyone who comes to a nuisance 'has a heavy burden to establish liability.'"
  • In other cases, courts have ordered the pre-existing activity stopped but granted the person a specified time to capture their investment in the operation or facility. In a few cases, the court has ordered the new neighbors to pay a portion of the cost of the facility that is being shut down.
    • Would a court ordering a person to shut down an existing activity be considered a taking if there was no opportunity to capture the investment or to be compensated?
  • Review the concept of an injunction, that is, a court order prohibiting or forbidding an act that will injure; an injunction is available when monetary damages are not sufficient to redress (resolve) the wrongful act.  Question -- might an injunction be the solution for a nuisance, rather than relying only on a monetary payment?

Are agricultural operations a nuisance?  See N.D.C.C. §42-04-01.

N.D.C.C. §42-04-02. Agricultural operation deemed not nuisance. An agricultural operation is not, nor shall it become, a private or public nuisance by any changed conditions in or about the locality of such operation after it has been in operation for more than one year, if such operation was not a nuisance at the time the operation began; except that the provisions of this section shall not apply when a nuisance results from the negligent or improper operation of any such agricultural operation.

Noxious Weeds -- am I liable for noxious weeds that spread from my land to your land?

• Common law -- no liability for spread of weeds.
  • "At common law, landowners were not liable for the natural spread of weeds from their property to their neighbors' property. Landowners, however, could be held liable if the spread of weeds resulted from some independent act of negligence... [T]here is a duty to use ordinary care when attempting to control or remove weeds."  Kukowski v. Simonson Farm, Inc., 507 N.W.2d 68 (N.D. 1993)
• Modern statutes require landowner to eradicate noxious weeds on land and in road ditches (N. D.C.C. §63-01.1-01 ). These statutes are enforced only by government, and in those cases, the local government eradicates the weeds but bills the owner [N.D.C.C. §§63-01.1-03 and -08(2)].
• North Dakota requires that noxious weeds be cleaned from equipment before traveling on public road. Violators are subject to monetary fine, except custom operators may be fined and imprisoned [N.D.C.C. §63-01.1-12(2) and -15].

Chemical Application -- am I responsible for damage to your property if the chemical I apply on my land drift onto your land? States answer the question differently, that is, they apply different legal theories.

• Various theories
  • strict liability -- liable for damage done by chemical drift regardless of how careful I was in applying the chemical.
  • negligence -- liable if I was careless in how I applied the chemical.
  • trespass but require actual damage -- liable if my chemical entered onto your property, but there has to be actual damage (which is different than the general trespass rules).
• North Dakota appears to apply the concept of strict liability; that is, "you are dealing with a dangerous substance when you are applying chemicals and you will be held responsible for any damages regardless of how careful you were during the application process."

• In North Dakota beginning in 2007, an injured party, before initiating a civil lawsuit, is required to "notify by certified mail the pesticide applicator of the alleged damage within the earlier of: (1) Twenty-eight days from the date the person first knew or should have known of the alleged damage; or (2) Before twenty percent of the crop or field allegedly damaged is harvested or destroyed."
  " Upon notifying the applicator ..., the person seeking reimbursement for the alleged property damage shall permit the applicator and up to four representatives of the applicator to enter the person's property for the purpose of observing and examining the alleged damage. If the person fails to allow entry, the person is barred from asserting a claim against the applicator." Without this step, developing the evidence to establish or refute liability would be much more difficult.
  • In North Dakota prior to 2007, an injured party was required to report the loss to the N.D. Dept. of Agriculture in order to be able to collect payment from the party responsible for the chemical damage (N.D.C.C. §§4-35-21 and 21.1); also Wills v. Schroeder Aviation, Inc., 390 N.W.2d 544 (N.D. 1986). The purpose of the statute was to give the N.D. Dept. of Agriculture (an objective third party) an opportunity to view the alleged damage and assess the cause and extent of the damage.

• An agricultural producer who hires a custom applicator to apply chemicals may be able to avoid responsibility or liability when a neighbor's property is damaged by drifting chemical by arguing that "the custom applicator is an independent contractor who controlled the application process, therefore I am not responsible for injury to the neighbor; instead, seek your recourse from the applicator who performed the activity that led to your damages."
  • Several steps are needed to analyze such a situation, for example: 
  • A neighbor complains that chemicals drifted from a farmer's land onto the neighbor's land while the chemicals were being applied to the farmer's land.  The neighbor argues that the farmer is responsible (absolute liability?) for the damages to the neighbor's crop resulting from the chemical drift. 
  A
  • The farmer argues that an agribusiness firm is liable to the neighbor because it was the agribusiness firm that actually applied the chemical. 
  • The neighbor may counterargue that the farmer hired the agribusiness firm and therefore the farmer is liable for the damages according to the concept of vicarious liability under the theory of respondeat superior (introduced on another web page).  That is, the agribusiness firm was the farmer's employee and the farmer is responsible for damages caused by an employee.  The agribusiness firm also may make this argument in an effort to keep the liability on the farmer and not have it shift to the agribusiness firm.
  • The farmer will argue that a) the agribusiness firm was hired as an independent contractor, and not as employee, and b) the agribusiness firm is responsible for damages resulting from its actions, including damages to the neighbor.
  • The neighbor, at this point, probably argues, "I do not care which of you is responsible, but one of you has to pay under the concept of absolute liability for chemical drift.  Pay me and then the two of you can figure out (without me) who is ultimately responsible."
  • The law now needs to decide whether the farmer or the agribusiness firm is ultimately responsible.  The farmer would argue that the agribusiness firm is an independent contractor and liable for the damages is caused.  The agribusiness firm may argue that it was an employee of the farmer and therefor the farmer is responsible.  The matter has now reached the point of having to define whether the agribusiness firm was an employee or independent contractor.
  • A major consideration in answering this question is who decided the details of the spraying operation.  Did the farmer decide which chemical to apply, the rate of application, the time of the application, and other such details, or did the agribusiness firm decide when and how to spray?  If the farmer made the decisions, the firm is an employee and the farmer is ultimately responsible.  If the firm made the detailed decisions, the firm is an independent contractor and ultimately responsible.
  • For more information about determining whether someone is an employee or an independent contractor, see North Dakota Department of Labor "Review of Twenty Factors and Pechtl v. Conoco, Inc., 1997 ND 161, 567 N.W.2d 813

Pollen Drift -- Must I compensate you when my GMO (genetically modified) crop pollinates your non-GMO crop, or is it your responsibility to maintain your crop an adequate distance from my crop so they do not cross-pollinate?

• "Formal legal rules to determine whether conventional or genetically modified producers must bear the cost of in-field segregation and setback measures to achieve coexistence do not exist ... To date, there are no reported cases assessing liability for farm-to-farm adventitious presence of genetically modified DNA via pollen drift, shared farm machinery, etc."  Take from Endres, A. Bryon. "Genetically Modified Varieties and a New Look at U.S. Seed Law," Am. Ag. Law Assoc. 2004 Annual Meeting, Des Moines IA, October 2004.
• Related reading Introduction to Biotechnology and Overview of Biotechnology (note the subtopics of Regulation and Liability).

Liability to Entrants -- am I responsible if you are injured while on my property?

Common Law -- my responsibility depended on why you were on my land; that is, my responsibility depended on the classification of the entrants:

• If the entrant was a trespasser (on my land without my permission), I was obligated to not intentionally harm the person; is setting a trap an "intentional harm?"
  • We place more value on life (even on the life of a trespasser) than we do on property.
• If the entrant was a social guest (a licensee on my land at my invitation for a social visit), I may not intentionally harm the guest and I must warn them of of hidden dangers.
• If the entrant was on my property to conduct business; that is, the person is a business invitee, I may not intentionally harm the person, I must warn them of hidden dangers, and I must ensure that the property is reasonably safe.

A problem with the common law approach is classifying the entrants, especially when their classification changes (e.g., a social visit that leads to a business transaction), or when their classification is not clear (a child who accompanies a parent on a business visit).

Modern trend -- rather than focus on the classification of the entrant, some states require the landowner to exercise reasonable care towards foreseeable entrants.

• "A landowner owes a duty of care to lawful entrants to keep its property in a reasonably safe condition, considering all the circumstances, which include 'the likelihood of injury to another, the seriousness of the injury, and the burden of avoiding the risk.'" Beckler v. Bismarck Public School Dist., 2006 ND 58.
• Of course, a trespasser is arguably unforeseeable and therefore is not entitled to any care from the landowner -- but what about repeated trespassing? Is the trespassing then foreseeable thereby imposing a legal responsibility on the landowner to exercise reasonable care toward a trespasser?
• North Dakota's version of this legal concept adheres to modern trend, except for trespassers (to avoid the problem of a "foreseeable trespass"):
  • "This Court no longer recognizes separate duties to lawful entrants depending on their status upon the land. O'Leary v. Coenen, 251 N.W.2d 746, 751 (N.D. 1977) (applying ordinary negligence principles to both licensees and invitees)." Iglehart v. Iglehart, 2003 ND 154.

Attractive Nuisance -- am I responsible when a trespassing child is injured on my property? I am not responsible for injury to a trespassing adult; is the expectation different if the trespasser is a young person?

Attractive nuisance is the legal concept that a person controlling/possessing land may be liable for injuries suffered by a trespassing child. See the following excerpt from a North Dakota court decision. Note that the concept applies only to artificial conditions on the property; not naturally occurring conditions.

The rationale is that a landowner has the best opportunity to protect the child by either removing the dangerous condition or by erecting a fence to keep the child from the danger. The rationale further assumes that children will always be curious and society does not want to discourage that natural desire to explore, and that the lowest cost way to reduce the risk is for the landowner to do something.

This concept does not require the landowner to make the property absolutely safe for a trespassing child, but as stated in the following excerpt, the landowner must "exercise reasonable care" to eliminate the danger. The excerpt also indicates that the landowner's obligation is determined by balancing 1) the cost to the landowner of the eliminating the danger and 2. the benefit to the landowner of maintaining the property in its current condition against the risk of injury to a trespassing child.

See Gessner v. City of Minot, 1998 ND 157, 583 N.W.2d 90 citing Mikkelson v. Risovi, 141 N.W.2d 150, 154 (N.D. 1966) which applied the principles set forth in Restatement, Second, Torts §339:

"A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if (a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and (b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and (d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children." [emphasis added]

Recreational Entrants -- am I responsible for injury to persons on my land for recreational purposes?

(See N.D.C.C. §§53-08-02, -03, -05, and -06)

• N.D.C.C. §53-08-02. Duty of care of landowner. Subject to the provisions of section 53-08-05, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.
• N.D.C.C. §53-08-03. Not invitee or licensee of landowner. Subject to the provisions of section 53-08-05, an owner of land who either directly or indirectly invites or permits without charge any person to use such property for recreational purposes does not thereby:

  1. Extend any assurance that the premises are safe for any purpose;

  2. Confer upon such persons the legal status of an invitee or licensee to whom a duty of care is owed; or

  3. Assume responsibility for or incur liability for any injury to person or property caused by an act or omission of such persons.

  Is this statute defining an immunity?

• N.D.C.C. §53-08-05. Failure to warn against dangerous conditions - Charge to enter. Nothing in this chapter limits ... liability ... for:

  1. Willful and malicious failure to guard or warn against a dangerous condition, use, structure, or activity; or

  2. Injury suffered in any case in which the owner of land [charged the person for entry onto the land and received during the year a total of more than 2 times the property tax on non-agricultural property or 4 times the property tax on agricultural land; amount paid by the state to the landowner are not considered in determining whether the landowner has received "too much"].

• N.D.C.C. §53-08-06. Duty of care or liability for injury. Nothing in this chapter may be construed as creating a duty of care or grounds of liability for injury to person or property. Nothing herein limits in any way the obligation of a person entering upon or using the land of another for recreational purposes to exercise due care in that person's use of such land and in that person's activities thereon.

How does charging recreational entrants a fee relate to the legal concepts of social guest v. business invitee? How does it relate to the legal concepts of license v. profit?

Also see Kautz v. Ozaukee County Agricultural Society -- how broadly do the court's interpret "recreational immunity?"

"The Kautzes alleged that Brenna came into contact with the E. coli bacteria while she was climbing on the lawn tractors displayed at the fair.  Thereafter, the Agricultural Society and the County filed motions for summary judgment, arguing that they were immune from liability under the recreational immunity statute. The court granted summary judgment in favor of both the Agricultural Society and the County."

Landowner's liability to entrants on leased property -- am I responsible for someone injured on property that I own but have leased to a tenant? 

• The general rule is no, but the landowner can be responsible if ...
  • injury is the result of a concealed danger,
  • the building is leased for public admission,
  • injury occurred in an area the landowner controls,
  • the injury resulted from the landowner's negligent repairs,
  • injury resulted from the landowner's unfulfilled promise to repair, and
  • a condition on the property was dangerous to adjacent property.
• See Pate v. Riverbend Mobile Home Village, Inc., 25 Kan. App. 2d 48
• This list of six exceptions to the "general rule " illustrate the concept that liability will be imposed on the person who has the best opportunity to eliminate or manage the risk.

Am I liable to someone who is injured by my animal while on my property?

• Owner is liable for damages done by animal that is known or should have been known to be dangerous; N.D.C.C. 36-11-06.
  • This legal principle illustrates that one is not only responsible for risks they are aware of, but that they also are responsible for risks they reasonably should have been aware of.
• Example: Amyotte v. Rolette County Housing Authority, 2003 ND 48, 658 N.W.2d 324

Trespassing Animals -- am I responsible for damage done if my animal enters onto your property?

• Livestock producers are required to keep their animals fenced in (N.D.C.C. §36-11-01); they are required to maintain pasture fences (N.D.C.C. §47-26-20).
  • There are some areas, including areas of North Dakota, that have been declared "open range" in which livestock owners are NOT required to enclose their livestock.

• Common law -- owner of animals is strictly liable for damages to crops and other animals (including impregnation and disease) caused by escaped livestock (N.D.C.C. §36-11-07(3)). Also see Madrid v. Zenchiku Land and Livestock, 2002 MT 172.
  • Is my responsibility different if it was my dog that was on your land rather than my cow?

• Injured party may not intentionally harm the trespassing animal, but may use reasonable force to remove the animal, or may capture the animal and sue for boarding cost (distraint) (N.D.C.C. §36-11-10).
  • Is your responsibility to me and my animal any different if it was my dog that was on your land rather than my cow?
  • N.D.C.C. §36-21-10. Any person may kill any dog, wolf, or coyote kept as a domestic animal:  1. When the person sees such animal in the act of killing, chasing, worrying, or damaging any livestock or poultry; or 2. When the person discovers such animal under circumstances which satisfactorily show that recently it has been engaged in killing or chasing sheep.  A person who kills any dog, wolf, or coyote under conditions specified in this section is not liable in any civil action to the owner of such animal.
    • How does this statute relate to the defense of necessity?

• N.D.C.C. §20.1-05-02.1. Any district game warden may kill any unattended dog harassing or killing big game. No action for damages may be maintained against the person for the killing.
• How does this statute relate to the defense of privilege?

Animals and Vehicle Accidents -- am I responsible if my animal is on a road and is struck by a vehicle? Is the driver responsible for my dead or injured animal?

• North Dakota does not permit animals to run at large. However if a confined animal escapes, the owner is not responsible for a vehicle accident unless the owner was negligent in confining the animal; this implies a duty to confine; Hassan v. Brooks; the burden of proving negligent maintenance of the fence is on the driver.
• Minnesota presumes the livestock owner was negligent in maintaining the fence if the animal is on the road, then the owner must prove that the fence had been properly maintained.

Thought question: Is it appropriate to summarize the issue of escaped livestock as:

• The owner of livestock has a duty to confine the animals;
• and, the owner of livestock has absolute liability for damages caused by escaped livestock (this is not an issue of negligence).
• But, the owner of livestock is immune to liability if the livestock is on a highway.
• However, the immunity is waived if the livestock owner was negligent in maintaining the fence where the animal escaped.

Professional Liability

• Director of a cooperative -- do I have any legal obligations when I serve as a director of a cooperative?

Members of a board of directors of a business can be liable if the owners/shareholders incur a loss due to negligent/careless oversight and decision making by the board members. This potential for liability may discourage persons from serving on a board of directors. North Dakota responded by creating an immunity for members of the board of directors for cooperatives. Note however, that the legislature distinguishes between negligence and "gross or willful negligence or gross or willful misconduct." Are there similarities between this distinction and the distinction between negligent and intentional torts?

• N.D.C.C. §10-15-31. Directors, trustees, and officers, and the manager who is the person most responsible for carrying out the policies and directives of the trustees, officers, or board of directors, are immune from civil liability for any act or omission relating to their service or function as a director, trustee, officer, or manager, unless the act or omission constitutes gross or willful negligence or gross or willful misconduct.

• Malpractice of a professional and standard of care for a tradesperson.  See Jilek v. Berger Electric, Inc., 441 N.W.2d 660 (ND 1989)

"...the standard of care for one who undertakes to render services in the practice of a profession or trade [is] 'the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities.'"

"... a standard of care for a tradesperson that is based on the conduct of reasonable persons who perform that trade ..."

Failure to reach these standards of care imply that the professional or tradesperson will be liable for injury or damage resulting from the failure to exercise the required standard of care. Could a required standard of care also be described as a duty?

Is a field scout a professional, a tradesperson, or neither? How would you categorize other occupations?

Summary of Key Points

• Entering onto someone property without permission is a trespass.
• Interfering with someone's use or enjoyment of their property is a nuisance.
• The legal distinction between an employee and an independent contractor can determine who is legally responsible for damages caused to a third party.
• I can be responsible when someone is injured on my property, but there are exceptions. I must take reasonable care to have my property safe for persons I can foresee being on my land, except I do not have this obligation to trespassers. However, I am obligated to minimize the risk of injury to trespassing children from artificial conditions.
• I can be responsible if my livestock injure you or damage your property. I am obligated (in most areas) to keep my animals restrained.
• I can be responsible if my professional actions or advice cause you injury.

Last updated October 7, 2010

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Published by Agribusiness and Applied Economics
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