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Tangedal v. Mertens

Supreme Court of North Dakota

August 25, 2016

Joan Tangedal and Shane Tangedal, Plaintiffs and Appellants
v.
William Mertens, Mavis Mertens, Defendants and Ramsey County Board of Commissioners, Lake Region District Health Unit, Defendants and Appellees

         Appeal from the District Court of Ramsey County, Northeast Judicial District, the Honorable Michael G. Sturdevant, Judge.

          Harry M. Pippin, for plaintiffs and appellants.

          Daniel L. Gaustad (argued) and Joseph E. Quinn (on brief), for defendants and appellees.

          McEvers, Justice.

         [¶ 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.

         I

         [¶ 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 him.

         [¶ 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.

         II

         [¶ 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 summary judgment.

         A

         [¶ 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. 1992).

         B

         [¶ 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. ...


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