Penny Bartholomay, individually for herself and the heirs at law of Jon D. Bartholomay, Deceased, Plaintiff and Appellant
Plains Grain & Agronomy, LLC, Defendant and Appellee
from the District Court of Cass County, East Central Judicial
District, the Honorable Thomas R. Olson, Judge.
E. Johnson (argued) and Jared J. Hines (appeared), Fargo,
N.D., for plaintiff and appellant.
J. Cahill, Moorhead, MN, for defendant and appellee.
J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner, Dale
V. Sandstrom, Gerald W. VandeWalle, C.J. Opinion of the Court
by 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.
[¶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.
[¶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
Fleck v. Missouri River Royalty Corp.,
2015 ND 287,
¶ 6, 872 N.W.2d 329 (quoting Johnson v.Shield, 2015 ND 200, ¶ 6, 868 ...