Mitchell v. Sanborn, 950020

• Citation: 536 N.W.2d 678
• Decision Date: 29 August 1995
• Docket Number: No. 950020,950020
• Parties: 10 IER Cases 1654 Walter E. MITCHELL, Plaintiff and Appellee, v. Art SANBORN, Defendant and Appellant. Civ.
• Court: United States State Supreme Court of North Dakota

Page 678

536 N.W.2d 678

10 IER Cases 1654

Walter E. MITCHELL, Plaintiff and Appellee, v. Art SANBORN, Defendant and Appellant.

Civ. No. 950020.

Supreme Court of North Dakota.

Aug. 29, 1995.

Kerry S. Rosenquist (argued), Arnason Law Office, Grand Forks, for plaintiff and appellee.

Ronald F. Fischer (argued), Pearson, Christensen, Larivee & Fischer, Grand Forks, and Duane H. Ilvedson, Nilles, Hansen & Davies, Ltd., Fargo, for defendant and appellant.

MESCHKE, Justice.

Art Sanborn appeals from a judgment, certified as final, holding him liable in a personal injury action brought by Walter E. Mitchell. We treat Sanborn's appeal as a petition to exercise our supervisory jurisdiction, and we direct the trial court to dismiss Mitchell's action.

In May 1991, Mitchell was injured while working as a police officer for the Grand Forks Police Department. Mitchell was standing next to a secretary's desk at the police station when Sanborn, a fellow officer who was also on duty, approached Mitchell from behind and bumped his knees out from under him. Mitchell submitted a claim to the North Dakota Workers Compensation Bureau, and he was awarded benefits for "an injury by accident arising out of and in the course of employment."

Mitchell then sued Sanborn, alleging that, when the incident occurred, Sanborn was engaged in "horseplay" outside the scope of his employment as a police officer. Mitchell sought damages in excess of $50,000, asserting that he sustained serious injuries, including two major surgeries, as a result of the incident. Mitchell and Sanborn agreed that, regardless of whether Sanborn's act was accidental, as asserted by Sanborn, or intentional, as alleged by Mitchell, Sanborn did not intend to injure Mitchell.

Sanborn moved to dismiss Mitchell's lawsuit, contending that, as a matter of law, it was barred by the exclusive-remedy provisions of the Workers Compensation Act, NDCC Title 65-01, and by the doctrines of res judicata and election of remedies. The trial court denied Sanborn's motion, ruling that the exclusive-remedy provisions and public policy did not, as a matter of law, protect a co-employee from liability for acts of alleged horseplay.

At the request of both parties, the court bifurcated the issues of liability and damages. After a trial without a jury on liability, the court found that Sanborn had intentionally pushed Mitchell's knees out from under him and that the act constituted negligence. The court also found that, in committing the act, Sanborn did not intend to harm or to injure Mitchell and that, when the horseplay occurred, Sanborn was engaged in a substantial deviation from the course of his employment. The court concluded that the exclusive-remedy provisions did not protect Sanborn from tort liability for his conduct and that Mitchell was entitled to proceed to trial on damages. At the request of both parties, the court ruled that there was "no just reason for delay in the entry of judgment on liability" under NDRCivP 54(b), and a final judgment on the question of liability was entered. Sanborn appealed.

On our own initiative, we first consider our jurisdiction to decide the liability question. An appeal from an intermediate order must meet two separate and distinct jurisdictional requirements. First, the order must satisfy one of the enumerated criteria under NDCC 28-27-02. Gast Const. Co., Inc. v. Brighton Partnership, 422 N.W.2d 389 (N.D.1988). Second, the trial court must certify the appeal under NDRCivP 54(b). Gast Const. Here, the jurisdictional problem is the propriety of the Rule 54(b) certification.

Rule 54(b) authorizes entry of a final judgment adjudicating fewer than all claims if the trial court makes "an express determination that there is no just reason for delay and ... an express direction for the entry of judgment." In Gessner v. City of Minot, 529 N.W.2d 868 (N.D.1995), we recently reiterated that Rule 54(b) preserves our longstanding policy against piecemeal appeals.

Although the trial court entered a Rule 54(b) certification, we are not bound by its decision, and we will review the certification to determine if the court abused its discretion. E.g., Gessner. The purpose of our review is to ascertain whether the circumstances establish the "infrequent harsh case" warranting the extraordinary remedy of an otherwise interlocutory appeal. E.g., Gissel v. Kenmare Township, 479 N.W.2d 876, 877 (N.D.1992). Rule 54(b) certification may not be used to secure an advisory opinion, and a party seeking certification must affirmatively demonstrate that prejudice or hardship will result if certification is denied. E.g., Bulman v. Hulstrand Const. Co., Inc., 503 N.W.2d 240 (N.D.1993). To demonstrate unusual and compelling circumstances for Rule 54(b) certification, there must be out-of-the-ordinary circumstances or cognizable unusual hardships that will arise if appellate review is deferred. E.g., Janavaras v. Nat'l Farmers Union Property & Casualty Co., 449 N.W.2d 578 (N.D.1989). Our recent cases illustrate that out-of-the-ordinary circumstances or cognizable unusual hardships justifying a Rule 54(b) certification are rare. Vanover v. Kansas City Life Ins. Co., 535 N.W.2d 424 (N.D.1995); Ingalls v. Glass Unlimited, Inc., 529 N.W.2d 872 (N.D.1995); Gessner; Bulman; Janavaras; Club Broadway, Inc. v. Broadway Park, 443 N.W.2d 919 (N.D.1989); Peterson v. Zerr, 443 N.W.2d 293 (N.D.1989). This record does not affirmatively establish the requisite out-of-the-ordinary circumstances or undue hardships for Rule 54(b) certification.

The parties stipulated:

4. The issues on liability involve, among other things, a significant question whether an employee who injures a fellow employee in the workplace, through an alleged act of "horseplay", may be sued for damages where the injured employee has applied for and received worker's compensation benefits for the subject injury. This precise question has been finally decided by the trial court following the bifurcated trial, and is a question that has not been directly addressed by the North Dakota Supreme Court.

5. A trial on the issues of damages will be very expensive and will involve, among other things, numerous depositions of physicians, independent medical exams, discovery depositions and other expense and will likely result in a four or five day trial. A trial on the issues of damages would create an economic hardship for both the plaintiff and defendant and would be a waste of judicial time when the issues of liability are significant, and ripe for review by the Supreme Court.

6. The liability issues will never be moot, do not involve any constitutional issues, and do not seek advisory opinions from the North Dakota Supreme Court.

We may agree with the parties that the issues involved in this appeal may never be moot, because the liability issue has been completely resolved and there is no possibility that any third party could absolve Sanborn from liability. Compare Ingalls; Gessner; Bulman; Janavaras. As the case is now postured, only damages remains to be decided. Although the parties stipulated that the trial of damages "will be very expensive" and will result in an "economic hardship," this record includes only general statements about expected expenses and does not contain specific proof about the extent of economic hardship. On this record, we decline to say that this case presents the "infrequent harsh case" warranting the extraordinary remedy of an interlocutory appeal, and we would ordinarily dismiss this appeal.

However, we also recognize that we may, in our discretion, exercise our supervisory jurisdiction if the requirements of Rule 54(b) have not been met. Central Power Electric Co-op., Inc. v. C-K, Inc., 512 N.W.2d 711 (N.D.1994); B.H. v. K.D., 506 N.W.2d 368 (N.D.1993); Fargo Women's Health Organization, Inc. v. Lambs of Christ, 488 N.W.2d 401 (N.D.1992), appeal after remand, 502 N.W.2d 536 (N.D.1993); Vorachek v. Citizens State Bank of Lankin, 461 N.W.2d 580 (N.D.1990); Thompson v. Goetz, 455 N.W.2d 580 (N.D.1990); Garrison Memorial Hospital v. Rayer, 453 N.W.2d 787 (N.D.1990). If the result of denying immediate appellate review is so prejudicial to create a substantial injustice, our supervisory jurisdiction acts as a "safety net" for the restrictive use of Rule 54(b). Central Power Electric, 512 N.W.2d at 717 (Chief Justice VandeWalle, concurring). We extend that "safety net" to this case.

Our discretionary authority to exercise our supervisory jurisdiction derives from Article VI, Section 2, of the North Dakota Constitution. North Dakota Commission on Medical Competency v. Racek, 527 N.W.2d 262 (N.D.1995). We exercise our supervisory jurisdiction rarely and cautiously to rectify errors or prevent injustice in extraordinary cases when no other adequate alternative remedy exists. E.g., Racek. We have exercised our supervisory jurisdiction to consider the constitutionality of statutes, Rayer; see Central Power Electric, the fundamental interests of litigants, Racek; B.H.; Lambs of Christ; see Goetz, and other important public interests. Zahn v. Graff, 530 N.W.2d 645 (N.D.1995); City of Fargo v. Dawson, 466 N.W.2d 584 (N.D.1991); Odden v. O' Keefe, 450 N.W.2d 707 (N.D.1990). Despite the inadequate record for a Rule 54(b) certification, this case embodies important public and private interests in the significance of the exclusive-remedy directives of the Workers Compensation Act amid allegations of a co-employee's horseplay. These factors, coupled with the certainty of liability against only Sanborn and the reasonableness of the suggestion that expensive and extensive medical discovery will be necessary before trial on damages, ¹ constrain us to exercise our supervisory jurisdiction and consider the merits of the liability issue.

Sanborn asserts the exclusive-remedy directives of the Workers Compensation Act, NDCC 65-01-01 and 65-01-08, ² preclude Mitchell from suing a co-employee for injuries...