Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Koenig v. Schuh

Supreme Court of North Dakota

December 20, 2016

La Verne Koenig, Plaintiff and Appellant
v.
Kenneth Schuh and Jason Schuh, Defendants and Appellees

         Appeal from the District Court of Nelson County, Northeast Central Judicial District, the Honorable Jon J. Jensen, Judge.

         AFFIRMED.

          La Verne Koenig, plaintiff and appellant.

          Paul R. Aamodt, for defendants and appellees.

          OPINION

          Crothers, Justice.

         [¶ 1] La Verne Koenig appeals from a judgment entered after a jury found no fault in his personal injury lawsuit against Kenneth Schuh and Jason Schuh. Koenig argues the district court erred in granting partial summary judgment to Patricia Schuh and Mary Schuh, the lack of a trial transcript denies him a fair and full review on appeal and he did not receive a fair and full jury trial. We affirm.

         I

         [¶ 2] Koenig was injured on a farm owned by Patricia Schuh. Koenig bought hay bales located on the Schuh farm. While tightening a strap securing the hay bales to a trailer, Koenig fell resulting in injury. Koenig sued Kenneth, Jason, Patricia and Mary Schuh alleging their fault in strapping the bales to the trailer. Koenig specifically alleges Jason was negligent in assisting him strapping a bale to the trailer and was acting under the direction of Kenneth and Mary Schuh. He alleges Patricia is liable because she owns the land and has a business relationship with the other Schuh defendants. The district court granted summary judgment to Patricia and Mary Schuh before trial. A jury found no fault on the part of Kenneth and Jason Schuh. Koenig appeals.

         II

         [¶ 3] Koenig argues the district court erred in granting summary judgment to Patricia and Mary Schuh. Koenig argues the district court erroneously shifted the burden to the non-moving party because the Schuhs admitted Koenig was on the property purchasing bales, which was a business transaction. Koenig argues Patricia and Mary Schuh are vicariously liable for the fault of Kenneth and Jason Schuh.

         [¶ 4] The Schuhs assert this issue is moot because the claims against Patricia and Mary are based on a theory that they were responsible for the negligent acts of Kenneth and Jason and the jury returned a verdict finding neither Kenneth nor Jason were at fault. We agree.

         [¶ 5] Koenig's claims against Patricia and Mary rely on the underlying liability of Kenneth and Jason. The jury returned a verdict finding no fault by Kenneth or Jason. Thus, no underlying liability exists for which Patricia and Mary could be secondarily liable. See Horejsi v. Anderson, 353 N.W.2d 316, 318 (N.D. 1984) (Release of a servant for his wrongful conduct also releases the master from vicarious liability). We also note that by this holding we are assuming, without deciding, vicarious liability might be otherwise available. See N.D.C.C. § 32-03.2-02; Praus ex rel. Praus v. Mack, 2001 ND 80, ¶ 83, 626 N.W.2d 239 ("In summary, because we have abolished joint liability and there is no claim of concerted action, and there is no vicarious liability, the only indemnification available to Cape is for the independent acts of Cape."). We conclude the jury's verdict renders this issue moot.

         III

         [¶ 6] Koenig asserts he is entitled to a free copy of the trial transcripts because it is a constitutionally protected right for an indigent person. Koenig concedes the lack of a trial transcript will prevent a meaningful and intelligent review of most of his issues on appeal. On three separate occasions the district court denied Koenig's petition to waive the transcript fee and affidavit to proceed in forma pauperis. A district court's decision on a civil litigant's request to proceed in forma pauperis is reviewed under the abuse of discretion standard. Vogel v. Braun, 2001 ND 29, ¶ 5, 622 N.W.2d 216. "A trial court abuses its discretion only when it ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.