State of North Dakota, by and through The North Dakota Department of Corrections and Rehabilitation and the North Dakota Youth Correctional Center, Petitioners
Honorable Bruce Haskell, Judge of the District Court, South Central Judicial District, and Delmar Markel, Respondents
from the District Court of Burleigh County, South Central
Judicial District, the Honorable Bruce B. Haskell, Judge.
FOR SUPERVISORY WRIT GRANTED, CROSS-PETITION DENIED.
E. Nicolai (argued) and Ken R. Sorenson (appeared), Office of
the Attorney General, Bismarck, ND, for petitioners.
Lawrence E. King, Bismarck, ND, for respondents.
2] The State of North Dakota, by the North Dakota Department
of Corrections and Rehabilitation's Youth Correctional
Center, petitioned for a supervisory writ directing the
district court to vacate its July 18, 2017 order denying the
State's motion for summary judgment on Delmar
Markel's negligence claim. Markel cross-petitions for a
supervisory writ directing the district court to vacate its
January 21, 2016 order dismissing Markel's claim for
constructive and retaliatory discharge. We exercise our
original jurisdiction by granting the State's petition
and denying Markel's cross-petition.
3] Delmar Markel worked at the North Dakota Youth
Correctional Center on December 9, 2012, when several inmates
broke out of their locked rooms. The inmates injured Markel
during their escape. On November 2, 2015, Markel brought a
complaint against the State alleging one count of negligence
for failure to fix faulty locks permitting the inmates to
escape and one count of constructive and retaliatory
discharge. The State argued that the Workforce Safety and
Insurance ("WSI") Act in N.D.C.C. Title 65 barred
Markel's negligence claim and that Markel failed to
exhaust administrative remedies regarding his discharge
claim. On January 21, 2016, the district court dismissed the
discharge claim for failure to pursue available
administrative remedies. The district court also denied the
State's motion to dismiss Markel's negligence claim.
4] Section 65-01-01, N.D.C.C., limits civil claims of
"workers injured in hazardous employments" to the
bounds of the statute:"[S]ure and certain relief is
hereby provided regardless of questions of fault and to the
exclusion of every other remedy, proceeding, or compensation,
except as otherwise provided in this title, and to that end,
all civil actions and civil claims for relief for those
personal injuries and all jurisdiction of the courts of the
state over those causes are abolished except as is otherwise
provided in this title. A civil action or civil claim arising
under this title, which is subject to judicial review, must
be reviewed solely on the merits of the action or claim. This
title may not be construed liberally on behalf of any party
to the action or claim.""The sole exception to an
employer's immunity from civil liability under this
title... is an action for an injury to an employee caused by
an employer's intentional act done with the conscious
purpose of inflicting the injury." N.D.C.C. §
5] The district court based its January 21, 2016 order on an
interpretation of the workers compensation statutes allowing
an employee to "pursue a civil cause of action against
his employer for a true intentional injury. An employer is
deemed to have intended to injure if the employer had
knowledge an injury was certain to occur and willfully
disregarded that knowledge." Zimmerman v. Valdak
Corp., 1997 ND 203, ¶ 21, 570 N.W.2d 204.
6] In June 2016, while the State and Markel engaged in
extensive discovery, this Court held the legislature changed
the "certain to occur" standard previously applied
to N.D.C.C. § 65-01-01 to a narrower interpretation,
requiring an employer to engage in an intentional act with a
conscious purpose to inflict injury. Bartholomay v.
Plains Grain & Agronomy, LLC, 2016 ND 138, ¶
11, 881 N.W.2d 249.
7] The State moved a second time to dismiss Markel's
claims on the narrowed intentional tort standards explained
in Bartholomay and specifically informed the
district court about the supersession of Zimmerman.
The district court denied the State's second motion to
"The [district court] wrote that 'the plaintiff may
be able to prove a set of facts in support of his claim which
would entitle him to the relief requested.' The [district
court] has not changed its opinion nor have the facts
changed. It is a question of fact whether the defendants knew
or intended that an injury would occur to the plaintiff as a
result of the alleged faulty locks."
State petitioned this Court for a supervisory writ to vacate
the district court order denying summary judgment, claiming
injustice and lack ...