Submitted: March 9, 2017
from United States District Court for the District of North
Dakota - Fargo
WOLLMAN, COLLOTON, and SHEPHERD, Circuit Judges.
COLLOTON, Circuit Judge.
Insurance Company appeals a judgment of the district court
awarding Amy Hiltner damages for injuries that she sustained
in a vehicle-related accident. The insurance company argues
that the district court improperly applied a heightened duty
to the driver of the vehicle, that the court erred in its
apportionment of fault, and that the court abused its
discretion in altering its damages award sua sponte.
Because we determine that the district court improperly
applied a heightened duty to the driver, we reverse and
remand for further proceedings.
2010, Hiltner attended a social gathering at a friend's
apartment, where she and others became intoxicated. Around
midnight, Hiltner, Samantha Denault, Xaviera Lone Wolf, Josh
Jeffries, and three others left the gathering. Denault had
agreed to serve as the designated driver, and she was the
only sober person among the group when they departed.
planned to drive the others to Lone Wolf's apartment and
then drive home. When the group reached Denault's
vehicle, Jeffries and three others got inside, but Hiltner
and Lone Wolf climbed onto the trunk with their backs facing
the rear window. Denault urged the two to get off the trunk
and get into the vehicle, but they twice refused and said
they would be "fine." Although she was concerned,
Denault proceeded to drive slowly to Lone Wolf's
apartment. Observing that Hiltner and Lone Wolf were taking
pictures of each other, laughing, and swaying to music,
Denault kept her speed at fifteen miles per hour, slowed down
for turns, and checked on the two every thirty seconds
through the rearview mirror.
was located in the front passenger seat. During the drive, he
gestured with his left hand once or twice as if he was going
to push down Denault's right leg. Denault was annoyed and
told him to stop. The ride went without incident until the
final turn toward Lone Wolf's apartment. At that point,
Jeffries pushed Denault's right leg down onto the
accelerator, causing the vehicle to speed up. Hiltner and
Lone Wolf fell off the trunk. Hiltner was injured during the
fall and needed physical and occupational therapy to recover.
Denault's insurer paid Hiltner its policy limit of $25,
000, Hiltner sought underinsured motorist benefits from
Owners as an insured under her father's automobile
policy. Owners denied benefits, and Hiltner sued in North
Dakota state court. Owners removed the case to federal court,
and the case was tried to the court. The district court found
Denault, Jeffries, and Hiltner each liable in part for the
accident. The court apportioned fault of fifty-five percent
to Denault, twenty-five percent to Jeffries, and twenty
percent to Hiltner.
Hiltner's relative fault was less than fifty percent, the
district court awarded her past economic, future economic,
and non-economic damages. See N.D. Cent. Code §
32-03.2-02. In response to Owners' post-trial motions,
the court recognized that "[b]oth parties agree that
there was no request for future economic damages, " and
vacated its award of future economic damages. The court then
awarded Hiltner the same amounts, broken down this time into
past economic, future non-economic, and
past non-economic damages. Owners appeals,
challenging the district court's apportionment of fault
and the award of damages. We review de novo the
district court's interpretation and application of state
law. Nolles v. State Comm. for Reorganization of Sch.
Dists., 524 F.3d 892, 901 (8th Cir. 2008).
argues that the district court improperly applied a
heightened duty to Denault because she was the sober
designated driver. North Dakota does not impose a heightened
duty by statute; a person driving a vehicle must operate
"in a careful and prudent manner." N.D. Cent. Code
§ 39-09-01.1. The North Dakota courts have not imposed a
heightened duty on designated drivers by common law. Other
jurisdictions affirmatively have rejected such a duty, citing
the potential that heightened exposure to liability would
chill designated drivers from performing a valuable service.
Tennessee, for example, a party assumed no affirmative duty
merely because of his status as a designated driver to aid or
protect an intoxicated passenger who rode unrestrained in the
bed of a pickup truck, "exited" the truck, and died
on the road. Downs ex rel. Downs v. Bush, 263 S.W.3d
812, 823-24 (Tenn. 2008). The court observed that "[t]o
hold a driver liable for the irresponsible actions of an
intoxicated passenger would cut against this important social
policy of encouraging the use of designated drivers."
Id. at 824 (alternation in original) (quoting
Stephenson v. Ledbetter, 596 N.E.2d 1369, 1373 (Ind.
1992)). In Vermont, a sober driver of a pickup truck breached
no duty of care to an intoxicated passenger who knelt on a
toolbox in the bed of a pickup truck, reached his arm into
the passenger side of the cab, and died when he fell under
the truck. Collins v. Thomas, 938 A.2d 1208, 1213-15
(Vt. 2007). In Louisiana, a sober driver owed no duty to
protect an intoxicated passenger who asked to exit the car on
the side of a highway before he was struck and killed while
walking into traffic. Cardella v. Robinson, 903
So.2d 613, 618 (La. Ct. App. 2005).
order here, the district court acknowledged these authorities
While intoxication is no excuse for wrongful conduct, when a
sober person knows or reasonably should know of the
intoxicated condition of a passenger rendering her incapable
of exercising vigilance or foresight for her own safety, the
sober person, even though she does not have a heightened duty
to aid or protect intoxicated passengers, continues to have a
duty to exercise reasonable care in driving the vehicle. In
other words, by taking charge of obviously ...