from the District Court of Ramsey County, Northeast Judicial
District, the Honorable Michael G. Sturdevant, Judge.
M. Pippin, for plaintiffs and appellants.
L. Gaustad (argued) and Joseph E. Quinn (on brief), for
defendants and appellees.
1] Joan and Shane Tangedal appeal from a summary judgment
dismissing their negligence claim against the Lake Region
District Health Unit and denying their motion to amend their
complaint to add a Lake Region employee, Allen McKay, as a
defendant to their lawsuit. The Tangedals claim McKay's
inspection of a septic system was grossly negligent and the
district court should have allowed them to amend their
complaint to sue McKay in his personal capacity and should
not have granted summary judgment dismissal of their claim
against Lake Region. We conclude Lake Region and McKay have
immunity for their alleged acts under N.D.C.C. §
32-12.1-03(3). We therefore conclude the court did not abuse
its discretion in denying the Tangedals' motion to amend
their complaint and did not err in granting summary judgment
dismissal of their claim against Lake Region. We affirm.
2] In September 2014, the Tangedals sued William and Mavis
Mertens, Lake Region, and the Ramsey County Board of
Commissioners for damages resulting from the January 2014
collapse of a septic tank on land the Tangedals had purchased
from the Mertens in 2009. The Tangedals alleged the Mertens
failed to disclose that in 2000 they built an addition to the
residence on the land on top of the septic system in
violation of applicable state and county regulations. The
Tangedals also alleged that, as part of the purchase and as
required under North Dakota law and Ramsey County
regulations, McKay, the Environmental Health Supervisor for
Lake Region, inspected the septic system and negligently
certified it as "expected to function satisfactorily
and... not likely to create an insanitary condition."
Lake Region and the Ramsey County Board answered, denying
liability and alleging governmental immunity in the
performance of a public duty under N.D.C.C. ch. 32-12.1.
3] In June 2015, the Tangedals moved to amend their complaint
to add McKay, in his personal capacity, as a defendant to
their lawsuit, claiming his inspection of the septic system
was reckless or grossly negligent conduct, or willful or
wanton misconduct. The Mertens, the Ramsey County Board, and
Lake Region resisted the motion to amend and moved for
summary judgment. The district court denied the
Tangedals' motion to amend, ruling a claim against McKay
in his personal capacity was futile and would not survive
summary judgment. The court said it would be impossible for a
rational jury to find clear and convincing evidence that
McKay's actions constituted reckless or grossly negligent
conduct, or willful or wanton misconduct under N.D.C.C.
§ 32-12.1-04(3) for personal liability against a
governmental employee acting within the scope of employment.
The court also explained McKay had immunity under N.D.C.C.
§ 32-12.1-03(3)(f) for the Tangedals' claims against
4] The Tangedals conceded there was no evidence indicating
the Ramsey County Board was a proper party to the lawsuit and
their claim against the County Board was dismissed. The
district court thereafter denied the Mertens' motion for
summary judgment and granted Lake Region's motion for
summary judgment. The court explained Lake Region was immune
from liability because McKay's inspection of the septic
system was within the scope of performance of a public duty
under N.D.C.C. § 32-12.1-03(3)(f) and no special
relationship was established under N.D.C.C. §
32-12.1-03(3)(g). The court rejected the Tangedals'
argument that the standard under N.D.C.C. § 32-12.1-04
for a governmental employee's liability in a personal
capacity applied and created an additional exception to
preclude immunity for performance of a public duty under
N.D.C.C. § 32-12.1-03(3)(f). The Tangedals thereafter
settled their claim against the Mertens.
5] The Tangedals argue: (1) the district court abused its
discretion in denying their motion to amend their complaint
under N.D.R.Civ.P. 15(a)(2) to add McKay as a defendant
because they claim they recently learned his inspection of
the septic system was reckless, grossly negligent, or wanton
or willful misconduct and an amendment to add him as a
defendant would not be futile under N.D.C.C. ch. 32-12.1; and
(2) the court erred in granting Lake Region summary judgment
because it is not immune from liability for McKay's
grossly negligent actions within the scope of his employment
under that chapter. The Tangedals' arguments involve the
interpretation of statutory provisions for governmental
liability and immunity in N.D.C.C. ch. 32-12.1 in the
procedural context of their motion to amend the complaint and
6] "Except as allowed by Rule 15(a)(1), a party may
amend its pleading only with the opposing party's written
consent or the court's leave. Leave shall be freely given
when justice so requires." N.D.R.Civ.P. 15(a)(2). A
district court has broad discretion in deciding whether to
allow a party to amend the pleadings after the time for
amendments has passed. Thimjon Farms P'ship v. First
Int'l Bank & Trust, 2013 ND 160, ¶ 28, 837
N.W.2d 327. We review a decision on a motion to amend
pleadings under the abuse of discretion standard.
Id. A court does not abuse its discretion in denying
a motion to amend a complaint if the proposed amendment would
be futile, and an amendment is futile if the proposed claim
would not survive a summary judgment motion. Id.
7] Summary judgment is "a procedural device for promptly
resolving a controversy on the merits without a trial if
there are no disputed issues of material fact and inferences
that can reasonably be drawn from undisputed facts, or if the
only issues to be resolved are questions of law."
Davidson v. State, 2010 ND 68, ¶ 11, 781 N.W.2d
72. In an appeal from a summary judgment, we view the
evidence in the light most favorable to the party opposing
the motion and give that party the benefit of all favorable
inferences that can be reasonably be drawn from the record.
Lucas v. Riverside Park Condos. Unit Owners
Ass'n, 2009 ND 217, ¶ 16, 776 N.W.2d 801. On
appeal, we decide 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. Id. Whether the district court
properly granted summary judgment is a question of law which
we review de novo on the entire record. Id.
8] Statutory interpretation is a question of law, fully
reviewable on appeal. In re P.F., 2008 ND 37, ¶
11, 744 N.W.2d 724. The primary purpose of statutory
interpretation is to determine the intention of the
legislation. Estate of Elken, 2007 ND 107, ¶ 7,
735 N.W.2d 842. Words in a statute are given their plain,
ordinary, and commonly understood meaning, unless defined by
statute or unless a contrary intention plainly appears.
N.D.C.C. § 1-02-02. Statutes are construed as a whole
and are harmonized to give meaning to related provisions.
N.D.C.C. § 1-02-07. If the language of a statute is
clear and unambiguous, "the letter of [the statute] is
not to be disregarded under the pretext of pursuing its
spirit." N.D.C.C. § 1-02-05. If the language of a
statute is ambiguous or of doubtful meaning, however, a court
may resort to extrinsic aids to interpret the statute,
including the object sought to be obtained, the circumstances
under which the statute was enacted, and the legislative
history, to determine the intention of the legislation.
N.D.C.C. § 1-02-39. A statute is ambiguous it if is
susceptible to differing but rational meanings. Western
Gas Res., Inc. v. Heitkamp, 489 N.W.2d 869, 872 (N.D.
9] Before addressing the parties' specific arguments, we
outline the general statutory framework in N.D.C.C. ch.
32-12.1 for governmental liability and immunity. Chapter
32-12.1, N.D.C.C., was enacted in 1977, see 1977
N.D. Sess. Laws ch. 303, after this Court abolished
governmental immunity for political subdivisions in Kitto
v. Minot Park Dist., 224 N.W.2d 795, 797 (N.D. 1974),
and held that political subdivisions may be liable for
injuries caused by the negligence, wrongful acts, or
omissions of their agents or employees. See Report
of the North Dakota Legislative Council to The Forty-Fifth
Legislative Assembly 173-78 (1977). The provisions of
N.D.C.C. ch. 32-12.1 are intended to enable political
subdivisions "to pay and to compromise claims and
judgments" and to limit exposure to potential liability.