The Volokh Conspiracy

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Do Landlords Have a Duty to Evict Drug-Using Tenants (or Face Liability if Guests Die When Using Drugs with Them)?

The North Dakota Supreme Court says "no," but one judge dissents.


From last week's decision of the North Dakota Supreme Court in Bjerk v. Anderson:

Christian Bjerk, [the eighteen-year-old] son of appellants Keith Bjerk and Debra Bjerk … died from an overdose [in June 2012] after consuming drugs at a house owned by Kenton Anderson. [The Bjerks sued Anderson on a premises liability theory.]

Anderson had not resided at the described property from 2009 to 2013. The property was occupied on June 10 and 11, 2012 by Julie Thorsen, her son [Nicholas "Nick"] Thorsen and her daughter Megan Thorsen…. [T]he father of Megan Thorsen's unborn child, also resided there. Julie Thorsen is Anderson's ex-girlfriend as of 2009, but she was and remains his employee. There is no written lease between them and rentals were not paid as a condition of its use….

Bjerk had bought ketamine elsewhere and taken it to the house, where he consumed it, in the company of several people, including Nick Thorsen. Bjerk "became loud and obnoxious, and began exhibiting strange behavior, all within ten minutes of consumption of the ketamine." Nick Thorsen told Bjerk to leave; Bjerk did leave, and then collapsed and died.

The Bjerks' complaint alleged that Anderson had failed to exercise reasonable care to keep a house owned and controlled by him "in reasonably safe condition," "free from illegal and dangerous activity," and "free of drugs and illegal substances." …

Generally, negligence actions involve issues of fact and are inappropriate for summary judgment. However, "[i]n a negligence action, whether or not a duty exists is generally an initial question of law for the court." …

[T]he Bjerks assert Anderson had a duty to stop dangerous criminal activity on his property by removing Nick Thorsen from the property or by warning his guests of the dangers they might face as a result of Nick Thorsen's drug activity. This asserted duty to remove may be more burdensome where there is a lease, but the asserted duty to stop the dangerous activity of drug use by removing known or suspected drug users is a significant burden regardless of the status of the occupant to be removed. Whether Anderson leased the house is not an undisputed fact here, but we conclude that fact is not material because there is no duty whether or not there was a lease.

Although not specifically argued by the Bjerks, Anderson may have other means of stopping dangerous drug activity, such as calling the police or directly controlling Nick's behavior at the house. If recognized, such duties would essentially make Anderson a mandatory reporter of all suspected dangerous illegal activity or convert him from a landowner into something akin to a police officer or probation officer with respect to those on his property….

What is the appropriate standard of care for a person in control of property to protect a person from his own unwise, criminal choice to use drugs on the property? Imposition of a duty on these facts is a policy-laden question better suited to legislative judgments. To be sure, courts must sometimes consider public policy in determining whether a duty of care applies in a particular situation. To impose the duty asserted by the Bjerks would place on those in possession or control of property a powerful incentive to refuse entry or occupancy to anyone with a history of drug use. A landowner does not reasonably expect to become the police officer or probation officer for all who live on—or merely enter—his property.

Before we would impose such a duty of care, we would require a higher degree of foreseeability arising from specific knowledge and prior events. Here, there is no showing that Anderson personally facilitated drug use at the house or knowingly permitted the house's occupants to maintain the house for ongoing drug use. There is no showing that Anderson knew of previous parties or gatherings at the house at which drugs were used. To impose premises liability under the circumstances alleged here would charge Anderson not only with control over the premises but also with control over and responsibility for harm caused by the criminal actions of people on the premises….

In addition to asserting a duty to control or remove, the Bjerks assert Anderson had a duty to warn. A "duty to warn is predicated upon the understanding that individuals who have superior knowledge of dangers posed by a hazard must warn those who lack similar knowledge; when an individual is already aware of danger, a warning is not necessary."

No specific warning is suggested that Anderson might have given to Christian Bjerk that would have averted the danger posed by Christian's use of illegal drugs. To be sure, a duty to warn would be less onerous than a duty to exclude or control Nick and thereby protect Nick's friends and associates from harming themselves at the house. Considering the obvious nature of the risks of illegal drug use, we decline to impose on landowners a duty to warn entrants on their property that consuming illegal drugs is a dangerous activity.

One might infer that Anderson should have known there were drugs in the house on at least an occasional basis, because the paraphernalia found by police the day after Bjerk's death may have been indicative of how the house had been kept previously. Also supporting that inference were Nick's prior drug charges and treatment history, and Anderson's own statement that he knew the Thorsen kids "were into drugs." Indeed, for purposes of summary judgment, Anderson conceded that drugs had been consumed on the premises. The evidence and reasonable inferences support some knowledge of drug activity by Nick Thorsen, but not enough to support a high degree of foreseeability that Christian Bjerk's drug use and resulting harm would occur at the house.

There is a great public interest in reducing the scourge of addiction. People in drug treatment and other stages of recovery need a place to live if they are to end the cycle of addiction.

In the face of potential premises liability, the only practical response Anderson or another landowner would have in these circumstances would be to evict or otherwise remove a drug user from the property at the first sign of use. Absent a clear signal from the legislature that [North Dakota law] is intended to extend premises liability to make a landowner liable under these circumstances, we are unwilling to extend the duty of care as the Bjerks request.

The Bjerks have not raised a genuine issue of fact that Anderson engaged in, facilitated, or was willfully blind to ongoing, dangerous activity. Absent that, a landowner or other person in control of property should not bear tort liability for self-inflicted injuries to individuals who lack perfect compliance with the interventions of juvenile court staff, adult probation officers, and other criminal justice and drug treatment professionals.

Without a heightened foreseeability requirement, our premises liability law would significantly deter the salutary work carried out by a private homeless shelter, a relative, or anyone who takes in an addict who is trying to find recovery….

Chief Justice Vandewalle, however, dissented on this point:

While our previous decisions relating to premises liability for injuries due to activities on the premises rather than structural defects may have involved facts in which the owner was present and engaged in the activity which caused the harm, the majority has cited to no cases from this jurisdiction which specifically rejected liability where the owner was not present and engaged in the harmful activity. Rather, the majority concludes that any extension of premises liability is a matter of public policy for the Legislature to decide. I submit the Legislature has already spoken by enacting N.D.C.C. § 9-10-06 … [:"]Willful acts and negligence — Liability. A person is responsible not only for the result of the person's willful acts but also for an injury occasioned to another by the person's want of ordinary care or skill in the management of the person's property or self….["]

The statute provides that a person is responsible not only for willful acts but for injury resulting from that person's ordinary negligence. Negligence can result from inaction as well as action. The plain language of the statute dispels the "active" versus "passive' dichotomy which the majority, relying on cases from other jurisdictions, appears to adopt.

It is not necessary, as the majority suggests, for further legislative action in order to hold the owner of premises responsible for harm to a person as a result of activities on premises which have become a haven for the sale and use of opioids or other drugs—an unfortunate occurrence all too common in today's society—if the owner of the premises has knowledge of those facts but does nothing to prevent those activities from continuing. Rather, the role of the Legislature, if it decides the statute is too broad, would be to limit the scope of the statute to avoid the results speculated in the majority opinion.

The evidence of the use of the premises for unlawful drug purposes and the evidence of the owner's knowledge of those facts is sparse. However, I believe the inferences which could be drawn from those facts are sufficient to prevent summary judgment [in the landlord's favor]….