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Bartholomay v. Plains Grain & Agronomy, LLC

Supreme Court of North Dakota

June 30, 2016

Penny Bartholomay, individually for herself and the heirs at law of Jon D. Bartholomay, Deceased, Plaintiff and Appellant
v.
Plains Grain & Agronomy, LLC, Defendant and Appellee

          Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Thomas R. Olson, Judge.

         Craig E. Johnson (argued) and Jared J. Hines (appeared), Fargo, N.D., for plaintiff and appellant.

         Barton J. Cahill, Moorhead, MN, for defendant and appellee.

         Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner, Dale V. Sandstrom, Gerald W. VandeWalle, C.J. Opinion of the Court by Crothers, Justice.

          OPINION

         Crothers, Justice.

          [¶1] Penny Bartholomay, individually for herself and the heirs of her deceased husband, Jon Bartholomay, appeals from a judgment dismissing her wrongful death action against Jon Bartholomay's former employer, Plains Grain & Agronomy, LLC. We affirm, because the facts alleged do not provide a genuine issue of material fact to avoid the exclusive remedy provisions of the Workforce Safety and Insurance Act.

         I

          [¶2] On January 18, 2013, Jon Bartholomay was loading grain into railcars at the Sheldon Grain Elevator as an employee of Plains, which was an insured employer under the Workforce Safety and Insurance Act, N.D.C.C. tit. 65. Jon Bartholomay fell from the top of a railcar he was loading and suffered serious injuries. Plains had no safety equipment in place to protect against falls, but intended to install a fall protection system. Jon Bartholomay never regained consciousness and died as a result of his injuries on February 15, 2013.

          [¶3] Penny Bartholomay sued Plains for wrongful death damages alleging it intentionally exposed Jon Bartholomay to unsafe working conditions. Plains answered and claimed the lawsuit was barred by the exclusive remedy provisions of the Act. Penny Bartholomay responded that her lawsuit could proceed because, under the sole exception to employer immunity from civil liability under the Act, Jon Bartholomay's injuries were caused by Plains' " intentional act done with the conscious purpose of inflicting the injury." N.D.C.C. § 65-01-01.1. The district court granted summary judgment dismissing the lawsuit because, as a matter of law, Plains' alleged conduct did not rise to the level of an intentional act done with the conscious purpose of inflicting the injury.

         II

          [¶4] Penny Bartholomay argues the district court erred in dismissing her action because she presented evidence demonstrating Plains committed an intentional act with the conscious purpose of causing Jon Bartholomay's accident, injuries and eventual death.

          [¶5] This Court's standard for reviewing a summary judgment is well established:

" Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. A party moving for summary judgment has the burden of showing there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In determining whether summary judgment was appropriately granted, we must view the evidence in the light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences which can reasonably be drawn from the record. On appeal, this Court decides whether the information available to the district court precluded the existence of a genuine issue of material fact and entitled the moving party to judgment as a matter of law. Whether the district court properly granted summary judgment is a question of law which we review de novo on the entire record."

Fleck v. Missouri River Royalty Corp., 2015 ND 287, ¶ 6, 872 N.W.2d 329 (quoting Johnson v.Shield, 2015 ND 200, ¶ 6, 868 ...


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