as a matter of law, had no legal duty to the decedent under a premises
liability theory because the homeowner was not present nor was he
occupying the property at the time of decedent’s death, and there
was no evidence or reasonable inference the homeowner himself
was engaging in the dangerous activity of drug use on the property.
Moreover, the homeowner did not have a heightened duty of
care, nor a higher degree of foreseeability of harm, as there was no
showing he knew of any previous parties or gatherings at the house
at which drugs were used. The Supreme Court also rejected plaintiff ’s
theory the owner had a duty to warn the decedent because the duty
to warn is predicated upon the knowledge of danger, and there was
no evidence the owner was aware of any prior use of dangerous drugs
at his home.
Finally, the Supreme Court rejected the plaintiff ’s claim based upon
the doctrine of negligent entrustment wherein plaintiffs contended
the owner negligently entrusted the house to his ex-girlfriend. The
Supreme Court stated current North Dakota law only allows a
negligent entrustment claim when a person supplies a chattel or item
of personal property to another with knowledge of an unreasonable
risk of harm in doing so. The Supreme Court stated North Dakota
law has not previously recognized a cause of action for negligent
entrustment of real property, and the Supreme Court declined to
now do so. The District Court summary judgment of dismissal in
favor of the absentee property owner was affirmed.
State v. Broom, 2018 ND 135
In early March 2017, two Bismarck, N.D., police officers were on
patrol. While waiting for a train to pass, the officers checked the
license plate of a vehicle stopped in front of them. The plate check
revealed the car was stolen. Once the train passed, the officers
stopped the vehicle and approached it with their guns out. The
officers repeatedly instructed the occupants to raise their hands.
The driver complied, but a passenger, Broom, did not. The officers
recognized Broom from previous drug arrests. Broom was removed
from the vehicle and handcuffed. Two of the officers told a third
officer Broom was known to conceal items in her orifices. A female
officer conducted a pat-down search of Broom’s person and in doing
so felt a large, soft bulge in Broom’s bra, which Broom claimed was
cash. The female officer searched Broom further in order to retrieve
the alleged money from the bra to verify this claim. The officer
discovered the item in Broom’s bra was a baggie filled with several
other baggies, a small glass vial, and a rolled-up 10 dollar bill. Broom
was arrested and charged with possession of drug paraphernalia and
possession of a controlled substance with intent to deliver. Broom
moved to suppress all of the evidence obtained from her as a result of
the search. The District Court denied the motion. Broom appealed.
danger. She was not being cooperative, but otherwise was not acting
in a threatening fashion toward the officers. Moreover, after Broom
was handcuffed and away from the vehicle, the object noted in her
bra from the exterior pat-down frisk was merely a “soft” or “squishy”
bulge in her bra that did not have the shape or density to suggest that
it may be a weapon.
Because of this, the further warrantless, intrusive search of Broom,
after the initial Terry frisk or pat-down, violated her Fourth
Amendment rights against unreasonable search and seizure, as she
was not exhibiting threatening behavior and the item on her person,
detected from the pat-down, did not suggest it might be a weapon.
Thus, the District Court order denying her motion to suppress was
reversed.
State v. Gunn, 2018 ND 95, 909 N.W.2d 701
The defendant was convicted of the crime of attempted gross sexual
imposition. On appeal, Gunn argued her conviction had to be
reversed because her alleged accomplice did not commit the actual
crime of gross sexual imposition. The Supreme Court rejected Gunn’s
argument because the criminal attempt statute, namely N.D.C.C. §
12.1-06-01(2), provides one may be guilty of criminal attempt if the
crime was committed by another person, even if the other person is
not guilty of committing or attempting the crime.
Moreover, Gunn argued on appeal her conversations with the other
person, which constituted the alleged criminal attempt, were nothing
more than simple, harmless “role playing,” and were protected by
the First Amendment. The Supreme Court rejected that argument
as well, concluding the First Amendment does not protect speech
that is integral to a commission of a crime because the statements
advocated, and were likely to produce, imminent lawless action and
thus fell outside of the protection of the First Amendment.
The District Court judgment of conviction was affirmed.
On appeal, the Supreme Court stated the search of Broom exceeded
the scope of a Terry frisk. Under Terry, a more extensive search is
constitutionally permissible when there is a reasonable belief the
officer or others may be in danger because the detained individual
may have a weapon on their person.
In this case, Broom was not making threats or otherwise acting in
a manner the officers reasonably believed may have put them in
SUMMER 2018
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