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]….

NEXT: Will Lawyers Be Punishable for Using the "Wrong" Pronouns to Refer to Transgender People in "Social" or "Bar Association" Activities?

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  1. Have you ever tried to evict a tenant. If the tenant fights the eviction, it can take 3-6 months in most states.

    1. When there’s a conflict, the law is going to come down on the side of tenant or landlord.

      Most states have tilting towards the tenant not being without shelter, even if that makes life suck a bit more than the landlord and commerce.
      The fact that landlords still abound tells me this decision hadn’t overburdened the market. Though most landlords I know have horror stories, so this is far from a costless decisions. But then many renters I know have horror stories the other way.

      1. The problem with the “landlords still abound” argument is that it means anything short of regulatory prohibition doesn’t overburden the market.

        Also the regulation at issue isn’t, at least in the real world, a tenant-friendly rule. You’re right that it isn’t a costless decision. As between tenants and landlords, who do you think pays for the cost? Which do you think is more likely: (1) landlords lower their profit expectations; or (2) landlords raise rents on other tenants to cover the costs? Even if they did do (1), that would still hurt renters because it decreases the investment-incentive for landlords, lowering inventory, which has the indirect effect of increasing rental costs. (None of which is to say the regulation is necessarily wrong.)

        1. The rule also disproportionately harms small landlords, who are in less of a position to tolerate the risk. I’ll bet the owners of large apartment complexes love these types of regulations.

          1. But there are lots of small landlords…

            It’d be interesting to compare jurisdictions that have pro-landlord regs with easy evictions versus those that don’t.
            I know which side I think would have more misery, but I cannot be sure due to the incidental costs reasons NToJ noted.

            1. It’s very difficult to have an apples-to-apples comparison. Regulations that discourage leasing (and investment in leasing) result in less affordable housing, but only in the jurisdiction. The people who lease to the poor just move farther away. And so life isn’t miserable in the heavily regulated area (San Francisco). It feels great to be a tenant! So long as you can afford it. That’s what gentrification is all about.

              I think there’s a big chicken-egg problem because people look to a low-income slum and think how unfair it horrible it must be to live there, and surely we can solve the problem by just making the landlords treat the tenants better. But when you do that you just move the slum farther away. (Which just hurts poor people more, since commuting is harder for them.) It’s very hard to measure. I think it is safe to say that tenant-regulations have increased, at least over my lifetime, while simultaneously income disparity has increased and economic mobility has stagnated. There’s obviously other factors involved, but any regulatory theory that depends on the altruism of landlords to pass savings on to tenants is doomed, at least in my view. Even if they do take less profits, tenants still lose since profits are what drive cheaper (i.e. affordable) housing.

      2. “The fact that landlords still abound tells me this decision hadn’t overburdened the market.”

        And what does the fact that homeless abound tell you?

        1. That this isn’t a one-stop solution.

          1. Sigh. You claim that “landlords abound”, but we have a problem with homelessness. That should indicate that landlords don’t abound quite as much as we would like them to.

            Forcing landlords to provide months of free housing to people before evicting them is likely to cause more homelessness, not less, as the additional risk gets factored into the price of housing.

      3. The fact that landlords still abound tells me this decision hadn’t overburdened the market.

        Except for the many places where they don’t, thereby leading to cries about the lack of affordable housing.

        1. That causality isn’t clear.

          1. It’s not clear that regulations that increase the cost of providing housing, drive down the levels of affordable housing? It’s pretty clear to me.

          2. I always enjoy people who believe they can throw around evidence-free assertions but expects everyone who responds to them to have iron-clad evidence.

    2. Surely if the landlord had initiated eviction proceeding and then the decedent had overdosed on the property, that would be a strong showing that he was taking steps to remove the hazard.

  2. Chief Justice Vandewalle seems to be trying to argue that the defendant is supposed to protect the deceased from actions taken by the deceased. You could change the location to the Bjerke’s house or an open field, and Bjerke’s own actions would have led to the same danger. There is no reason to hold Sander’s responsible for Bjerke’s actions. If the parents want to blame Sanderson, I have to ask them why they themselves are blameless while not preventing their son from becoming aquainted, acquiring, and using drugs in the first place. The parents are just lashing out and trying to blame the location and not the actor.

  3. Bjerk bought drugs elsewhere, consumed them, was told to leave, and died.

    I don’t really see what the property owner could have done to keep him from taking the drugs.

    1. Unfortunate username for your particular post.

  4. Special K… breakfast of champions

  5. The answer is ‘no’.


  6. Bjerk’s death was his own fault and [except for the seller of the dope] no other person shares any legal or even moral responsibility.

    Maybe Bjerk’s parents should reimburse the landlord’s attorney fees since they likely gave him the money to buy it, if we are making other people responsible and all.

  7. The dissent is plainly wrong because it asserts a duty far beyond the “ordinary care or skill in the management of the person’s property”. The duty implied by the dissent would in fact be quite extraordinary.

  8. Chief Justice Vandewalle appears to be a blithering idiot. Since when is a non-participant responsible for another’s actions?

    1. Flame,
      It happens all the time in the law. If you have a swimming pool and you make a conscious decision to not put fencing around it, even though you know that 30 kids live within a block of your house…well, then you will likely be found to be liable, if a kid trespasses and drowns in your pool. (Of course, this “this IS the law” point is different from your possible point of ‘This is what the law SHOULD be.” But then, you would not have said that Justice V is a ‘blithering idiot,’ since of course judges decide based on precedent. And no judge who follows the law and obeys existing precedent is ever an idiot…even in cases where we think a different result should be reached.)

      So, it looks like you really are claiming that the existing law never calls for liability for a non-participant. Since, in actuality, such liability happens many many many many times, in states all over America; it raises the specter of who actually ends up looking like a blithering idiot.”

      1. (Of course, this “this IS the law” point is different from your possible point of ‘This is what the law SHOULD be.”

        You point one of the common problems with ginsburg’s dissents
        for example – Epic Systems Corp. v. Lewis
        Encino motors
        Lilly Ledbetter v goodyear

        this is what the is – but her dissents are based on what the law should be (based on her policy preference) Same with her concurring opinion in Obamacare – Quasi quote – health care reform is good – therefore compulsionary purchase of unwanted product is constitutional.

        Of course we should have empathy for the deceased therefore liability should extent to the landlord (hint sotomayer)

      2. The swimming pool is an “attractive nuisance” and is itself the source of danger. The drug case at hand is quite different.. The danger was inherent in the ketamine, which Bjerk brought with him, not the house. The house, furthermore, was not an “attractive nuisance”. There appears to be no evidence suggesting that the residents encourage the use of drugs.

  9. Pretty slimy act by the deceased parents. “Hey, our kid died! Let’s see if we can cash in!”

    1. Edit: Or, rather, I meant to write, “by the deceased’s parents.” Deceased parents wouldn’t do much of anything.

    2. David,
      I am assuming that you are speaking tongue in cheek. Most of us understand that parents are human beings and will respond to tragedy in entirely predictable ways. One way we make sense of a horrible loss is to try and find someone to blame. You seem to find it remarkable (and odious) that a parent would try to find a way to ascribe blame to someone other than his now-dead son.

      I find the parents’ actions completely understandable. I do NOT agree with their decision to sue, and I agree 100% with the majority opinion in this case. But to call the parents’ actions “slimy” seems rather breathless. When your son or daughter dies in a tragic incident, then you can show up how calm, mature, and objective you are. God willing; you’ll never (and I’ll never) be placed in such a terrible situation.

      You could show a smidgen of empathy to the grieving family, even while strongly criticizing the merits of the lawsuit and while criticizing their decision to file it.

      1. I stand by my description. Filing a lawsuit is not a heat-of-passion act by grieving parents. It was a considered decision to try to make some money off their kid’s death, and yes, I find that odious.

        Strange how the person that they tried to ascribe blame to conveniently happened to have the deepest pockets, rather than the people actually involved in the death. They forfeited any claim on my sympathy when they decided to go after an innocent bystander for money.

        And as a policy matter, I think the only way we will limit suits of this nature is to attach a social stigma to bringing them.

      2. Are you saying that there is nothing a grieving parent can do that is slimy?

      3. It’s just a coincidence that these grieving parents understandable ascribed blame to a party only tangentially involved but who had money/insurance to sue for.

  10. Somewhere, at a libertarian (or libertarianish) blog, someone commenting about this decision might mention decriminalization of drugs.

    1. Why? What makes you think the parents wouldn’t have sued if their son had just been engaging in just dangerous rather than dangerous and illegal activities?

  11. I shouldn’t make light of this tragic story, but it does have the elements of a Wagnerian opera, with the Bjerks, the Andersens and, above all, the Thor-Sen.

  12. In fairness to the dissent, the majority acted as if it were a common-law court, possessing essentially legislative powers to determine the circumstances under which a duty of care exists as a matter of law. The dissent took the view that since negligence is a matter of statute, not common law, whether a duty of care exists in any particular case is to be decided by a jury, unless the legislature chooses to enact supplemental legislation establishing special standards and decision rules for particular situations.

    I am inclined to think that when a legislature passes a really, really open-ended statute, courts have to fill in the gaps somewhat. After all, Federal courts developed a complete law of admiralty with no more guidance from Congress than a bare grant of jurisdiction over admiralty cases. I think courts have no choice but to try to develop decision rules for what “admiralty” means. The situation here may be similar. And state courts have express common-law powers that federal courts don’t.

    I agree that if the North Dakota appellate court has essentially legislative common-law powers to clarify what duties of care exist in this situation, the policy considerations it articulated for not imposing a duty of care in this situation were reasonable.

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