from the District Court of Nelson County, Northeast Central
Judicial District, the Honorable Jon J. Jensen, Judge.
Verne Koenig, plaintiff and appellant.
R. Aamodt, for defendants and appellees.
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.
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.
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.
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 ...