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Frith v. Park District of City of Fargo

Supreme Court of North Dakota

November 16, 2016

Karisa Frith and Roger Frith, Plaintiffs and Appellants
v.
The Park District of the City of Fargo and North Dakota Insurance Reserve Fund, Defendants and Appellees

         Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Wade L. Webb, Judge.

         AFFIRMED.

          Roger Frith (argued) and Karisa Frith (appeared), self-represented, plaintiffs and appellants.

          Ronald F. Fischer (argued) and Daniel L. Gaustad (on brief), defendants and appellees.

          Gerald W.VandeWalle, C.J.

         [¶ 1] Karisa and Roger Frith appealed from a judgment dismissing their complaint against the Park District of the City of Fargo and the North Dakota Insurance Reserve Fund. We affirm, concluding the district court did not err in concluding the Friths' claims against the Park District were precluded by the statute of limitations.

         I

         [¶ 2] The Friths sued the Park District and Insurance Reserve Fund seeking monetary damages for injuries Karisa Frith allegedly sustained while rollerblading in a Fargo park on July 7, 2012. The Friths alleged Karisa Frith was injured when she tripped on soft patching material used to fill a crack in the park pathway. The summons and complaint were originally served on July 2, 2015, but the service did not comply with the requirements of N.D.R.Civ.P. 4. In September 2015, the Park District and Insurance Reserve Fund moved for dismissal under N.D.R.Civ.P. 12(b), arguing the court lacked personal jurisdiction because they were not properly served and the Friths failed to state a claim upon which relief can be granted. On October 5, 2015, the Friths properly served the summons and complaint.

         [¶ 3] In November 2015, the Park District moved for summary judgment, arguing the Friths' claims were barred by the statute of limitations because the three-year statute of limitations for claims against a political subdivision expired before the Friths commenced the action. The Friths responded to the Park District's motion, arguing the three-year statute of limitations does not apply and their claims for relief did not accrue until September 12, 2013, when they received information from an expert witness that there was reasonable cause to believe the Park District was negligent.

         [¶ 4] After a hearing, the district court granted the motions to dismiss and for summary judgment. The court concluded the Friths' claims against the Park District were barred by the statute of limitations because the three-year statute of limitations for actions against a political subdivision applied to the Friths' claims and the statute of limitations expired before the action commenced. The court also dismissed the claims against the Insurance Reserve Fund, concluding the claims fail as a matter of law because the Insurance Reserve Fund does not owe any duties to the Friths. A judgment was entered dismissing the complaint with prejudice.

         II

         [¶ 5] Summary judgment is appropriate when 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. Ferguson v. City of Fargo, 2016 ND 194, ¶ 7. Whether summary judgment was properly granted is a question of law that is reviewed de novo on appeal. Id. 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 drawn from the record. Tangedal v. Mertens, 2016 ND 170, ¶ 7, 883 N.W.2d 871. 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.

         III

         [¶ 6] The Friths argue the district court erred in dismissing their complaint because it applied ...


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