Justia Injury Law Opinion Summaries

Plaintiffs-Appellants Mark Tibert, Melvin Tibert, Sue Tibert, and William Tibert appealed a district court judgment that dismissed their declaratory judgment action against Nodak Mutual Insurance Company. Mark, Melvin, and William Tibert are brothers, and Sue Tibert is Mark's wife. The Tiberts were involved in a lengthy dispute with Minto Grain, LLC, and its owners William and Katherine Slominski. Mark and Sue Tibert and Melvin Tibert owned homes on property adjacent to a grain elevator owned and operated by Minto Grain. Minto Grain intended to expand its facility, and acquired a portion of BNSF Railway's right-of-way on a roadway abutting and providing access to the Tiberts' properties. The Tiberts had various homeowner's policies and umbrella policies, which included personal injury liability endorsements, with Nodak. In 2004, Minto Grain brought an action against the Tiberts, alleging civil conspiracy, wrongful interference with business, tortious interference with contract, nuisance, trespass, and abuse of process. The Tiberts delivered the complaint to Nodak. Nodak denied it had a duty to indemnify or defend the Tiberts under the policies. The Tiberts brought this declaratory judgment action against Nodak, seeking indemnification and recovery of their costs of defending the underlying action. Upon review, the Supreme Court concluded that the district court did not err in concluding Nodak did not have a duty to indemnify the Tiberts for the damages paid to Minto Grain, but did err in concluding Nodak did not have a duty to defend the Tiberts in the underlying action. The Court considered the remaining issues and arguments raised by the parties and found them to be either unnecessary to its decision or without merit.

Petitioner Thomas Moore appealed a judgment that dismissed his claim for medical expenses incurred by his son, M.M., in their personal injury action against Fargo Public School District No. 1 and Eugenia Hart. In May 2004, M.M., a 15-year-old student at Discovery Middle School in Fargo, was seriously injured while practicing a bike stunt in the school auditorium in preparation for '60s Day, part of the curriculum for Hart's history class. Moore and M.M. brought a personal injury action against the District and Hart. The district court dismissed the action against the District as a matter of law, and a jury returned a verdict in favor of Hart. The Supreme Court concluded the court erred in ruling the recreational use immunity statutes barred the action against the District and erred in excluding certain evidence from the jury in the action against Hart, and we reversed and remanded for a new trial. On remand, Hart settled, and the case was tried to the jury only against the District. At the close of the evidence, the district court rejected the District's request to include a line on the special verdict form for apportioning fault to Petitioner, concluding there was no evidence from which a jury could find him was at fault. The jury returned a verdict allocating 30 percent fault to "Eugenia Hart and any other employee of the Fargo Public School District" and 70 percent fault to M.M. The jury awarded Petitioner $285,000 for past economic damages based on M.M.'s medical expenses incurred while he was a minor. Because M.M.'s fault was greater than the fault of the District, the court entered judgment dismissing the action and awarding costs in favor of the District. The court also denied Moore's request to have judgment entered in his favor for $85,500, representing 30 percent of the $285,000 awarded by the jury for M.M.'s past medical expenses. Following the majority rule, the court concluded "a child's negligence should be considered in determining the extent of a parent's recovery against a third party for medical expenses paid." Because Petitioner's claim for past economic damages derived from M.M.'s injuries, and M.M. was denied recovery under North Dakota's modified comparative fault laws, the Supreme Court concluded the district court correctly dismissed Petitioner's claim for medical expenses.

Respondent-Appellant John Witzke appealed the district court's order granting a petition by Petitioner-Appellee Ania Gonzalez a two-year disorderly conduct restraining order against him. Witzke and Gonzalez were neighbors with "a long acrimonious history," which resulted in frequent litigation. Finding Gonzalez presented sufficient evidence to support the restraining order, the Supreme Court concluded the district court did not abuse its discretion in granting the order.

Plaintiff-Appellant Allen Perius appealed a district court judgment following a jury verdict in favor of Appellee Nodak Mutual Insurance Company. In 2004, Plaintiff was involved in a motor vehicle accident with an uninsured driver, Jacob Kessler. Plaintiff insured his vehicle with Nodak for basic no-fault benefits and uninsured motorist benefits. Nodak paid Plaintiff no-fault benefits as a result of the accident. Plaintiff did not seek further medical treatment until March 2005, when he saw a chiropractor. Plaintiff submitted the bills to Nodak for payment as no-fault benefits. After Plaintiff submitted to an independent medical examination, Nodak denied him payment for any medical treatment after December 31, 2004, concluding such treatment was unrelated to the accident. In 2007, Plaintiff brought suit against Kessler, alleging he negligently operated his motor vehicle and caused Plaintiff's injuries. Plaintiff also sued Nodak, alleging the company breached its insurance contract with him. Nodak denied liability, and asserted a cross-claim against Kessler regarding Plaintiff's uninsured motorist claim. Kessler did not answer the claims against him. In 2009, Nodak moved for summary judgment, arguing no competent, admissible evidence established his claimed injuries were caused by the accident. Plaintiff resisted the motion, and submitted the affidavits of two of his treatment providers who stated their belief that Plaintiff's injuries and treatment were due to the accident. The district court granted Nodak's motion for summary judgment, and this Court reversed and remanded, finding disputed issues of material fact existed. A trial was set on remand. Shortly after, Plaintiff sent Nodak amended responses to Nodak's interrogatories. Prior to trial, Nodak was informed of Plaintiff's intent to call a chiropractor, as an expert witness. Nodak filed a motion in limine seeking to exclude the expert witness, alleging the expert was not properly disclosed.The district court granted Nodak's motion, but ordered the doctor would still be allowed to testify as a fact witness. The jury returned a verdict in Nodak's favor. The Supreme Court concluded that Plaintiff did not properly disclose his witness and that the district court did not abuse its discretion excluding the expert's testimony as a discovery sanction.

American Family Insurance, Prairie West Apartments I, and Valley Rental Service, Inc., appealed a judgment that dismissed with prejudice negligence and strict liability claims against Waupaca Elevator Company, Inc., on the basis that American Family did not begin its action against Waupaca Elevator within the six-year statute of limitations. Late 2010, AmericanFamily sued Waupaca Elevator alleging that an elevator designed, marketed and sold by Waupaca Elevator damaged American Family's apartment building in West Fargo back in 2004. Upon review, the Supreme Court reversed the judgment and remanded for further proceedings, concluding American Family properly served its summons and complaint upon Waupaca Elevator within the statute of limitations.

Plaintiff-Appellant Randy Holkesvig appealed an order that found him in contempt for failing to obey a court order and awarding Defendants-Appellees Peter Welte, Meredith Larson and Chris Smith $1,000 as a remedial sanction for the contempt. In 2008 Plaintiff was charged in Grand Forks County with stalking and violating a disorderly conduct restraining order. After pleading guilty to the stalking charge, Plaintiff brought a malicious prosecution action against Welte, Larson and Smith, who were previously involved in the 2008 criminal proceedings brought against him. The district court granted summary judgment dismissing the claims against Welte, Larson and Smith, and Plaintiff appealed to the Supreme Court. After Plaintiff filed the appeal, he continued to file post-trial motions in the district court, and the Supreme Court remanded for disposition of the post-trial motions. The district court conducted a show cause hearing on remand, denied the post-trial motions, determined there was "no proper purpose" for the motions, and awarded the defendants $1,000 in attorney fees as a sanction. Because the district court found Plaintiff in contempt and imposed a remedial sanction without holding a hearing to which Plaintiff was statutorily entitled, the Supreme Court reversed the order and remanded the case for further proceedings.

Ransom County appealed a grant of summary judgment that awarded Plaintiffs-Appellees Tracy and Lisa Jund the $250,000 coverage limit of Ransom County's underinsured motorist coverage. The issue in this appeal involved the meaning of language in N.D.C.C. § 26.1-40-15.4(1) that "[a]ny damages payable to or for any insured for . . . underinsured motorist coverage must be reduced by" the amounts payable under any Workforce Safety and Insurance ("WSI") law. The Junds sued Johnnie B's Bar & Grill and Ransom County, alleging Tracy Jund was injured during the course of his employment as a Ransom County Deputy Sheriff when his patrol car was involved in an accident with an underinsured motor vehicle driven by Shane Reinhardt, an individual the Junds alleged had unlawfully consumed alcoholic beverages at Johnnie B's. The Junds alleged Ransom County, as a pool member of the North Dakota Insurance Reserve Fund, provided underinsured motorist coverage for the patrol car and was liable to the Junds for $250,000 in underinsured benefits under the limits of its underinsured motorist coverage. The district court construed that language to authorize a reduction for WSI benefits payable to Tracy Jund from the Junds' total compensatory damages, not from Ransom County's underinsured motorist coverage limit. Upon review, the Supreme Court affirmed the district court for substantially the same reasons outlined in its decision.

Plaintiff-Appellant Leah Richard appealed the dismissal of her claims for negligent hiring, supervision and retention, and assault and battery against Washburn Public Schools (the District). Petitioner, a sixteen-year-old student at Washburn High School, began working as a part-time custodian for the District. Gary Fuchs was the head custodian and her supervisor. Plaintiff alleged that during her employment with the District, which ended in 2003, Fuchs subjected her to "inappropriate conduct . . . including sexual comments and touching." In April 2006, Plaintiff sued the District seeking damages based on claims of negligent hiring, supervision and retention of Fuchs, and assault and battery. The court dismissed the negligent hiring claim, concluding Fuch's conduct was not foreseeable as a matter of law because Plaintiff produced no evidence showing the District knew or should have known Fuchs would harass or physically touch co-workers. The court dismissed the assault and battery claim, concluding it was barred by a two-year statute of limitations. Although the court determined genuine issues of material fact existed regarding Plaintiff's claims for negligent supervision and retention, the court dismissed those claims on the ground they were precluded by the exclusive remedy provisions of the Workforce Safety and Insurance Act. Upon review, the Supreme Court affirmed the district court's dismissal of Plaintiff's claims for negligent hiring and assault and battery, which she did not challenge on appeal. The Court reversed the dismissal of Plaintiff's claims for negligent supervision and retention because the trial court erred in concluding those claims were barred by the exclusive remedy provisions of the Workforce Safety and Insurance Act.

The United States District Court for the District of North Dakota certified a question to the Supreme Court on whether North Dakota applies the "apparent manufacturer" doctrine to N.D.C.C. ch. 28-01.3. Plaintiffs Ruth and Nathan Bornsen brought a products liability action in state district court against Pragotrade, LLC, Pragotrade, Inc., and Cabela's Retail, Inc., for negligence, strict liability, and breach of warranty, alleging Ruth Bornsen injured her hand on while using a meat grinder manufactured by Pragotrade and purchased from Cabela's. At a hearing on the motion to dismiss, the Bornsens cited "Reiss v. Komatsu Am. Corp.," and argued Cabela's was an "apparent manufacturer" of the meat grinder under the Restatement of Torts and was not entitled to dismissal under N.D.C.C. 28-01.3-04. After supplemental briefing by the parties, the United States District Court for the District of North Dakota certified: "[w]hether the North Dakota Supreme Court intends to adopt the 'apparent manufacturer' doctrine set forth in the Restatement (Second) of Torts Sec. 400 or more recently, the Restatement (Third) of Torts: Product Liability Sec.14." Upon review, the Supreme Court concluded that: "[t]o the extent that a statute specifies responsibilities, the statutory terms control. But to the extent that a statute does not, the rule in this Section states the common-law rule." Here, the North Dakota Products Liability Act treats nonmanufacturing sellers "more leniently" than did the common law rule. "That is a legislative determination which we are bound to follow." On the record certified in this case, the Supreme Court answer the certified question "No."

Patricia Saltsman appealed a district court summary judgment and dismissal of her case against Ed Hasche. Saltsman argued the district court erroneously decided Hasche did not owe a duty toward Saltsman as a lawful entrant on Hasche's land. Saltsman also argued the district court made improper findings of fact to support the summary judgment in favor of Hasche. Saltsman rode her bicycle on a sidewalk next to an apartment building and parking lot owned by Hasche. Hasche had constructed a chain-link fence with vertical "privacy slats" parallel to the sidewalk in order to provide more privacy for the tenants who parked their vehicles in the parking lot next to the apartment building. Lisa Sharp, traveling in a vehicle, exited the building's parking lot. Saltsman collided with Sharp's vehicle and sustained injuries. Saltsman sued Sharp and Hasche to recover for her personal injuries. Saltsman and Sharp settled, and the case against Sharp was dismissed. On the issue of whether he owed a duty toward Saltsman, Hasche argued Saltsman was not on his property when she was injured, she was not directly injured by his property, his fence was lawful, and no special relationship existed between Hasche and Saltsman that would create a duty. The district court granted the motion for summary judgment and dismissed Saltsman's claims, stating a landowner does not owe a duty to protect a passerby on a sidewalk adjacent to the landowner's property from the acts of an independent negligent driver. Upon review, the Supreme Court reversed the summary judgment in favor of Hasche, and remanded the case for further proceedings.