IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2024 ND 40

David Papenhausen, Plaintiff

v.

ConocoPhillips Company, and Burlington 

Resources Oil & Gas Company LP, individually, 

and d/b/a Burlington Resources Oil & Gas LP, Defendants

No. 20230280

Certified Questions of Law from the United States District Court for the 

District of North Dakota, the Honorable Clare R. Hochhalter, Magistrate

Judge.

CERTIFIED QUESTIONS ANSWERED.

Opinion of the Court by Tufte, Justice.

Jeffrey S. Weikum (argued), Bismarck, North Dakota, and Justin L. Williams

(on brief), Corpus Christi, Texas, for plaintiff.

Jack E. Zuger (argued) and Samuel H.J. Schultz (appeared), St. Paul, 

Minnesota, for defendants.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

MARCH 7, 2024 

STATE OF NORTH DAKOTA
1

Papenhausen v. ConocoPhillips Co.

No. 20230280

Tufte, Justice.

The United States District Court for the District of North Dakota has 

certified two questions to this Court regarding North Dakota’s natural 

accumulation rule, which precludes liability for injuries caused by natural 

accumulations of snow and ice. The questions ask whether the accumulation 

rule extends to an oil well site in a rural area, and, if so, does it still apply if it 

conceals a condition substantially more dangerous than one normally 

associated with ice and snow.

We answer the first question, “yes.” The natural accumulation rule 

applies to an oil well site in a rural area like the area where Papenhausen was 

injured. We answer the second question, “no.” The concealment aspect of snow 

and ice is outside the scope of our natural accumulation rule.

I

Plaintiff Papenhausen was injured when his foot fell through a hole 

concealed by a layer of ice and snow located on a remote well site owned and 

operated by Defendants ConocoPhillips Company and Burlington Resources 

Oil & Gas Company LP (“Defendants”) in rural Dunn County, North Dakota. 

Papenhausen sued the Defendants, asserting claims of negligence and 

premises liability under North Dakota law.

Papenhausen alleges the cause of the injury was an unreasonably 

dangerous hole concealed by ice and snow and created by the Defendants’ 

negligent maintenance of the well site. Defendants allege the injury would not 

have occurred but for the natural accumulation of ice and snow, irrespective of 

the hole, arguing the natural accumulation rule applies and precludes them 

from liability. Defendants rely on Papenhausen’s deposition testimony: “The 

snow and ice apparently was covering a void under there and that’s where my 

foot went through. If the snow and ice hadn’t been there, I would have seen it.” 

Papenhausen argues the natural accumulation rule does not extend to “remote 
2

areas of property” and also should not apply here because the ice and snow 

concealed a dangerous condition.

II

As a threshold matter, this Court must decide whether to answer the 

certified questions. Under N.D.R.App.P. 47, this Court may answer a question 

of law certified by a foreign court if the question could be determinative of the 

proceeding and no controlling precedent exists. See Blasi v. Bruin E&P 

Partners, LLC, 2021 ND 86, ¶ 6, 959 N.W.2d 872. This is less stringent than 

the standard for questions certified by a state district court, which requires the 

question be determinative. See N.D.R.App.P. 47.1. Unlike cases in state court 

where the parties have a right to appeal, declining a question certified by a 

foreign court “leave[s] that court to speculate upon unsettled issues of North 

Dakota law, and the parties have no recourse in the appellate courts of this

State.” Mosser v. Denbury Res., Inc., 2017 ND 169, ¶ 9, 898 N.W.2d 406 (quoting 

Bornsen v. Pragotrade, LLC, 2011 ND 183, ¶ 7, 804 N.W.2d 55).

The federal court asserted these questions involve an issue with “no 

controlling precedent in the decisions of the supreme court of this state.”

N.D.R.App.P. 47(a)(2). The federal court further stated the application of the 

natural accumulation rule to remote rural areas of property “may be 

determinative” for resolution of this litigation. N.D.R.App.P. 47(a)(1). The court 

cites several of our cases concerning the natural accumulation rule, but none 

address rural well sites. The court further provides an Ohio case wherein Ohio 

adopts an exception to the natural accumulation rule for “a condition 

substantially more dangerous than that normally associated with snow.”

We agree controlling precedent does not exist for application of the 

natural accumulation rule to remote well sites—especially considering that

Makeeff v. City of Bismarck, 2005 ND 60, 693 N.W.2d 639, did not reach a 

majority holding. We further agree North Dakota has not addressed how to 

apply the natural accumulation rule if the snow or ice conceals a separate 

danger unrelated to snow and ice. The application of the natural accumulation 

rule, and possible exception for a separate danger, may be determinative in 
3

this case. The requirements of N.D.R.App.P. 47 are satisfied, and we exercise 

our discretion to answer the certified questions.

III

Generally, “[l]andowners owe a general duty to lawful entrants to 

maintain their property in a reasonably safe condition under the 

circumstances, considering the likelihood of an injury to another, the 

seriousness of the injury, and the burden of avoiding the risk.” Green, 2004 ND 

12, ¶ 8. “If a landowner permits dangerous conditions to exist on the premises 

the landowner must take reasonable measures to prevent injury to those whose 

presence on the property reasonably can be foreseen.” Fast v. State, 2004 ND 

111, ¶ 8, 680 N.W.2d 265 (citing Groleau v. Bjornson Oil Co., Inc., 2004 ND 55, 

¶ 16, 676 N.W.2d 763). “The open and obvious nature of a danger may obviate 

the need to warn of danger.” Wotzka v. Minndakota Ltd. P’ship, 2013 ND 99, 

¶ 23, 831 N.W.2d 722 (citation omitted). “A duty to warn does not exist when 

the risk is commonly known, already understood and appreciated, or obvious.”

Id. (citing 57A Am. Jur. 2d Negligence § 388 (1989)).

Under the natural accumulation rule a landowner has no duty to remove, 

and is not liable for injuries caused by, natural accumulations of snow and ice, 

or to warn of the dangers associated with the same. 3 Premises Liability 3d 

§ 52:1 (2023 ed.). We have adopted the natural accumulation rule, holding 

“[t]he mere fact there is snow and ice upon a person’s sidewalk, does not 

establish negligence by that party.” Green v. Mid Dakota Clinic, 2004 ND 12, 

¶ 8, 673 N.W.2d 257 (citing Skjervem v. Minot State Univ., 2003 ND 52, ¶ 10, 

658 N.W.2d 750); see also Clark v. Stoudt, 73 N.D. 165, 173, 12 N.W.2d 708 

(1944) (explaining a rule that meets with our approval is: “Owners and 

occupants of property are not liable to a pedestrian for injuries resulting from 

a fall caused by slipping on snow and ice which, due to natural weather 

conditions, accumulated on the sidewalk in front of the property, 

notwithstanding an ordinance penalizing failure to remove such snow and 

ice.”); but see Strandness v. Montgomery Ward, 199 N.W.2d 690, 692 (N.D.

1972) (as an exception to the rule, a landowner who constructs a canopy over a 
4

sidewalk upon his property owes a duty to the public to maintain it to provide 

a sidewalk free from artificial accumulations of water and ice).

The natural accumulation rule relates to the threshold question whether 

a duty exists. See Gunville v. United States, 985 F. Supp. 2d 1101, 1108 (D.S.D. 

2013) (“The natural accumulation rule concerns the threshold question of 

whether the defendant owes a plaintiff a legal duty to clear natural 

accumulations of ice and snow.”). The natural accumulation rule exists 

because, as a matter of law, it is not reasonable to impose premises liability for 

dangers caused by natural accumulation of ice and snow. See 62A Am. Jur. 2d 

Premises Liability § 625 (“To require that an owner’s or occupier’s walks be 

always free of ice and snow would be to impose an impossible burden in view 

of the climatic conditions in certain areas.”). The underlying rationale for the 

natural accumulation rule is reasonableness.

Our consideration of the natural accumulation rule dates back to 

Jackson v. City of Grand Forks, 24 N.D. 601, 140 N.W. 718, 723 (1913):

[L]iability should be based upon negligence and upon what is 

reasonable under the circumstances, paying attention to the 

climatic conditions. What would be reasonable, for instance, in 

southern Illinois might not be reasonable in North Dakota or 

Montana; but reasonableness, and a reasonable regard for public 

safety, should be the criterion. The municipality under this rule is 

bound merely to exercise reasonable care and diligence to render 

the sidewalks safe. Where the sidewalk is properly constructed, 

the mere fact that it is rendered slippery by the presence of ice and 

snow will not in itself render the city liable for resulting injuries. 

Where, however, snow or ice is suffered to remain for a long time 

until it forms into mounds or ridges, and becomes itself an 

obstruction as it were to the sidewalk, or on account of its depth 

and quantity, a mass which in every thaw may be trampled into 

deep ruts and ridges which in the night following or in a close 

succeeding freeze may become dangerous and an occasion for 

further obstruction, the municipality may be held liable. It will be 

held liable, if not for the accumulation, then for not using 

reasonable means, such as scattering sand, gravel, or ashes to 

prevent the danger.
5

In Fast, 2004 ND 111, ¶ 12, we explained, “We need not decide whether the 

snow and ice accumulation in this case was natural or artificial because, given 

the climate in North Dakota, it would be unreasonable and unduly burdensome 

to hold the State liable without some further act or omission on its part 

creating an unreasonably dangerous condition.”

Papenhausen argues this Court abandoned the natural accumulation 

rule and adopted a reasonableness standard in Makeeff v. City of Bismarck, 

2005 ND 60, 693 N.W.2d 639. Contrary to Papenhausen’s assertion, Makeeff

did not abrogate the natural accumulation rule as we described it in Fast, 2004 

ND 111.

First, only four justices participated in Makeeff. The lead opinion by 

Justice Sandstrom was joined only by Justice Maring. No rationale was joined 

by a majority of the court. Chief Justice VandeWalle, joined by Justice Kapsner, 

concurred only in the result, explaining: “It is not clear to me whether the 

majority intends to overrule our previous cases such as Fast and the other 

North Dakota cases cited and relied upon therein and to reject the ‘natural 

accumulation rule’ or whether it intends to carve out a different standard 

where stairs attached to a public building, not sidewalks, are concerned.” 2005 

ND 60, ¶ 32. Therefore, a majority rationale for the result in Makeeff was not 

reached. See State v. Orr, 375 N.W.2d 171, 175 (N.D. 1985) (citing the Marks

rule). “When a fragmented Court decides a case and no single rationale 

explaining the result enjoys the assent of [a majority of justices], ‘the holding 

of the Court may be viewed as that position taken by those Members who 

concurred in the judgments on the narrowest grounds.’” Id. (quoting Marks v. 

United States, 430 U.S. 188, 193 (1977)).

Next, Makeeff, 2005 ND 60, examines only whether the natural 

accumulation rule extends to stairways attached to a City building. Makeeff 

was injured when she was leaving a public event at the Bismarck Civic Center, 

and she slipped on a patch of ice on an “outside stairway leading out of the 

Civic Center.” Makeeff, at ¶ 2. The City, relying on Fast, 2004 ND 111, ¶ 12, 

argued the case was analogous to slip-and-fall cases that occur on sidewalks, 

where “a party is not liable for slippery conditions caused by snow and ice on a 
6

sidewalk, absent some act or omission creating an unreasonably dangerous 

condition.” Makeeff, at ¶ 15. We recognized, the “mere fact there is snow and 

ice upon a person’s sidewalk, does not establish negligence by that party.” 

Green, 2004 ND 12, ¶ 8. We have said, however, “there may be instances where 

the State could be liable for injuries sustained as a result of a slip and fall on 

snow or ice.” Fast, at ¶ 12 (emphasis added). The Makeeff court viewed “[s]tairs 

next to or attached to a building” as one of those instances. 2005 ND 60, ¶ 17

(rejecting the jurisdictions that apply the natural accumulation rule to stairs 

connected to buildings and adopting the rationale of the jurisdictions which

exclude stairs attached to a building from the natural accumulation rule and 

instead apply the “reasonableness rule”). Makeeff’s reliance on reasonableness 

is consistent with our previous examination of the natural accumulation rule—

a rule based upon reasonableness.

In Wotzka, 2013 ND 99, ¶ 16, the Court examined Makeeff’s rationale as 

persuasive authority. The Court ultimately concluded a slippery shower is an 

open and obvious condition that a landowner could reasonably anticipate will 

cause harm, “[s]imilar to the natural accumulation of snow and ice on a 

stairway to business premises.” Id. The Court held a landowner has a duty to 

provide reasonably safe premises. Id. The Wotzka court recognized Makeeff

was limited to stairways. Makeeff’s limitation to stairs was also emphasized in 

Beckler v. Bismarck Public School Dist., 2006 ND 58, ¶ 8, 711 N.W.2d 172

(citing Makeeff, 2005 ND 60, ¶ 25), where we explained the duty to entrants 

includes “a responsibility to keep stairs safe from dangerous conditions that 

may cause someone to slip and fall.” The natural accumulation rule is not 

without exceptions, such as stairways attached to or next to a building.

Makeeff, at ¶ 25 (“[W]e decline to extend our natural accumulation rule used 

in cases involving sidewalks to these circumstances.”); see also Strandness v.

Montgomery Ward, 199 N.W.2d 690, 692 (N.D. 1972) (finding an exception to 

the rule, and explaining that “[u]nder these conditions, Montgomery Ward 

owed a duty to the public to properly maintain its canopy in order to provide a 

sidewalk free from ice, such as would be expected when the sidewalk is 

protected by a canopy) (emphasis added). Therefore, the natural accumulation 

rule remains generally applicable.
7

We similarly find Makeeff persuasive by examining the rationale of its

exception to the natural accumulation rule. The Makeeff Court explained: “An 

impetus behind not extending the natural accumulation rule to stairways is 

proximity. Stairs next to or attached to a building present a different situation 

from that of sidewalks, which can be remote and may be many miles in length.” 

Makeeff, 2005 ND 60, ¶ 17; see also Kremer v. Carr’s Food Center, Inc., 462 P.2d 

747, 750-51 (Alaska 1969) (declining to extend the rule for sidewalks to 

business premises and explaining the numerous miles of sidewalks would 

make it an impossible task to remove all of the snow and ice in a timely

manner); Fulton v. Robinson Industries, Inc., 664 So.2d 170, 174 (Miss. 1995) 

(examining difference between stairs attached to a building and a parking lot 

because “a business owner could monitor the safety and condition of his stairs 

and any other physically adjacent parts of the building”); see Claimsone v. Pro. 

Prop. Mgmt., LLC, 2011 IL App (2d) 101115, ¶ 21, 956 N.E.2d 1065 (“The 

reasoning behind the general rule that a property owner has no duty to remove 

natural accumulations of ice and snow is that it is unrealistic to expect 

property owners to keep all areas where people may walk clear from ice and 

snow at all times during the winter months.” (cleaned up)).

Papenhausen argues the natural accumulation rule does not extend to 

“remote areas of property.” However, remote areas are precisely the locations 

the natural accumulation rule protects because the reasonableness of 

monitoring remote areas of property, and lack of notice resulting therefrom, 

demonstrates the rationale for the rule. Where it is unreasonable for an owner 

or operator to continually monitor an area, such as the remote well site in rural 

North Dakota, it is unreasonable to expect the owner or operator to promptly 

clear any naturally accumulating snow or ice, removing that duty and thus 

liability from the owner or operator.

Given the remote location of the well site, the natural accumulation rule 

should be applied in the circumstances surrounding Papenhausen’s accident.

We answer, “yes,” to the first question certified by the United States District 

Court for the District of North Dakota.
8

IV

The United States District Court for the District of North Dakota 

certified an additional question regarding the snow accumulation rule, asking 

how the natural accumulation rule applies if an otherwise open and obvious 

danger becomes substantially more dangerous due to the natural accumulation 

of snow or ice.

Papenhausen alleges the cause of the accident was an unreasonably 

dangerous hole concealed by ice and snow and created by the Defendants’ 

negligent maintenance of the subject well site. He argues the natural 

accumulation of the ice and snow concealed a dangerous condition, resulting in 

an unreasonably dangerous condition. The federal court asks if the natural 

accumulation rule still applies if the snow and ice conceal a condition 

substantially more dangerous than one normally associated with ice and snow.

We answer this second question, “no.”

This question requires us to consider whether the owner or operator of 

property has a duty resulting from snow and ice that, rather than creating an 

open and obvious danger of slippery conditions, conceals a separate open and 

obvious danger.

Papenhausen argues the danger that injured him was not a “natural 

danger of ice or snow.” The natural accumulation rule removes liability from a 

landowner or operator for the slippery conditions created by snow and ice. The 

slippery nature of snow and ice is an open and obvious condition. When the 

slippery nature of the snow and ice is not the open and obvious danger, but 

rather the snow or ice conceals another danger, we must consider the owner’s 

or operator’s duty in another light.

“When a landowner has reason to anticipate that an invitee will proceed 

to encounter a condition, despite its open and obvious nature, the factfinder 

must still consider whether the landowner acted reasonably under the 

circumstances.” Wotzka, 2013 ND 99, ¶ 16. “If a landowner permits dangerous 

conditions to exist on the premises, the landowner must take reasonable 
9

measures to prevent injury to those whose presence on the property reasonably 

can be foreseen.” Id. (cleaned up).

We again look to the rationale underlying the natural accumulation rule:

The rationale underlying the rule is that the plaintiff is in a 

much better position to prevent injuries from ice or snow because 

the plaintiff can take precautions at the very moment the 

conditions are encountered. When the snow or ice occurs naturally, 

the defendant is not in any better position than the plaintiff to 

foresee and prevent injuries, and therefore the defendant has no 

duty to remove the hazard. Thus, the open-and-obvious-danger 

exception is contained within, and is part and parcel of, the natural 

accumulation rule.

RB, Jr. by & through Brown v. Big Horn Cnty. Sch. Dist. No. 3, 2017 WY 13, 

¶ 15, 388 P.3d 542 (Wyo. 2017) (cleaned up). We have held “[a] landowner’s duty 

to protect entrants upon the land or warn of dangerous conditions is limited 

when the dangerous condition is known or obvious to the entrant.” Groleau,

2004 ND 55, ¶ 17 (citing Restatement (Second) of Torts, § 343A (1965)). Under 

the natural accumulation rule, the open and obvious nature of the slippery 

danger of snow and ice eliminates the duty to remove that danger.

Concealment of a danger negates the “open” nature of the open and 

obvious exception. Although the snow may conceal slippery ice below, the 

danger of slipperiness is an ordinary hazard obvious enough to a reasonable 

person that the natural accumulation rule still applies. The same is not 

necessarily true for an unrelated danger lurking below the snow or ice. 

Therefore, the concealment aspect of snow and ice is outside the scope of the 

natural accumulation rule.

The federal court asks us to consider Mikula v. Tailors, 24 Ohio St. 2d 

48, 57, 263 N.E.2d 316 (1970), which states:

A deep hole in a parking lot which is filled or covered, or both, 

by a natural accumulation of snow constitutes a condition, the 

existence of which the owner of the premises is bound, in the 

exercise of reasonable care, to know. He is also bound to know that 
10

a natural accumulation of snow which fills or covers the hole is a 

condition substantially more dangerous than that normally 

associated with snow. The invitee is not bound to anticipate that 

condition as an ordinary hazard resulting from the snow. He 

cannot be expected to protect himself from a danger which he 

cannot reasonably foresee. Under such circumstances, the owner’s 

failure to correct the condition constitutes actionable negligence.

The Ohio court first explained, “The defendant was held not liable upon 

the theory that the owner of the premises owes the invitee no duty with regard 

to conditions of the premises which are obvious and apparent. Natural 

accumulations of ice and snow, it was said, present obvious dangers from which 

an invitee can be expected to protect himself.” Mikula, 24 Ohio St. 2d at 56-57. 

The Ohio court continued, “this is not to say . . . that there is no duty upon a 

person in control of business premises to remove a natural accumulation of ice 

and snow which creates a danger which is not obvious, which an invitee thereto 

cannot reasonably be expected to know, and of which the owner should have 

superior knowledge.” Id. at 57.

Ohio recognizes the natural accumulation rule. Crossman v. Smith 

Clinic, 2010-Ohio-3552, ¶ 10 (“[I]t is well established that an owner or occupier 

of land ordinarily owes no duty to business invitees to remove natural 

accumulations of ice and snow from the private sidewalks on the premises, or 

to warn the invitee of the dangers associated with such natural accumulations 

of ice and snow.”). “However, an exception to the general ‘no-duty’ winter snow 

rule is where the land owner or occupier is shown to have actual or implied 

notice that the natural accumulation of snow and ice on his premises has 

created there a condition substantially more dangerous to his business invitees 

than they should have anticipated by reason of their knowledge of conditions 

prevailing generally in the area.” Id. at ¶ 11 (cleaned up). “In order to be liable, 

the land owner or occupier must have superior knowledge of the existing 

danger.” Id. “A second exception to the general rule exists where the owner or 

occupier of land is actively negligent in permitting or causing an unnatural 

accumulation of ice or snow.” Id. at ¶ 12.
11

The Ohio court distinguishes between an “unnatural accumulation” and 

an “improper accumulation.” “In the Mikula case, a natural accumulation of 

snow covered a seven-inch deep hole in a parking lot and constituted an 

improper accumulation by concealing the defect.” Crossman v. Smith Clinic, 

2010-Ohio-3552, ¶ 14. “[T]he cases referencing an ‘improper accumulation’ are 

instances where a natural accumulation of snowfall hid or covered a hazardous 

condition about which the property owner knew or should have known.” Id. at 

¶ 15 (citing also Longenberger v. Collins Food (1977), 52 Ohio App.2d 105, 368 

N.E.2d 85 (the entire area was covered with substantial snow which concealed 

an abrupt steep change in grade); Miller v. Biskind Dev. Corp., 8th Dist. No. 

53470, 1988 WL 18818 (a natural accumulation of snow covered an eight-inch 

high concrete barrier)).

Ohio premises liability creates an exception to the natural accumulation 

rule regarding concealment “where the land owner or occupier is shown to have 

actual or implied notice that the natural accumulation of snow and ice on his 

premises has created there a condition substantially more dangerous to his 

business invitees than they should have anticipated by reason of their 

knowledge of conditions prevailing generally in the area.” Crossman v. Smith 

Clinic, 2010-Ohio-3552, ¶ 11. Ohio’s premises liability law is consistent with 

our premises liability law. We need not decide, nor adopt, Ohio’s exception for 

a “condition substantially more dangerous” because concealment by snow is 

outside our natural accumulation rule.

Concealment by snow or ice removes the openness of the separate 

danger, leaving the focus on the obviousness of that danger. The determination 

whether a particular dangerous condition upon land is “obvious” is governed 

by an objective standard:

“Obvious” means that both the condition and the risk are apparent 

to and would be recognized by a reasonable man, in the position of 

the visitor, exercising ordinary perception, intelligence, and 

judgment.

Restatement (Second) of Torts § 343A, Comment b (1965). “Conditions may 

exist which, though seemingly innocuous in themselves, indeed present an 
12

unreasonable danger under certain circumstances.” Groleau, 2004 ND 55, ¶ 22

(citations omitted).

“The determination of whether a dangerous condition is open and 

obvious, limiting the landowner’s duty, is generally a question of fact for the 

trier of fact, and becomes a question of law only when reasonable minds could 

reach but one conclusion.” Groleau, 2004 ND 55, ¶ 21. In this case, the 

“obvious” nature of the concealed hole or rut and whether it was a danger the 

owner knew or should have known about, are questions of fact for the trier of 

facts.

Having considered whether a duty is created on the owner or operator of 

property by snow and ice that, rather than creating an open and obvious 

danger of slippery conditions, conceals a separate, otherwise open and obvious 

danger, and concluding the concealment aspect of snow and ice is outside the 

scope of our natural accumulation rule, we answer the federal court’s second 

question, “no.”

V

On the record certified in this case, we answer the first question, “yes” 

and the second question, “no.”

Jon J. Jensen, C.J.

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte

Douglas A. Bahr