Bartels v. City of Williston

• Decision Date: 01 February 1979
• Docket Number: No. 9547,9547
• Parties: John Mark BARTELS, Plaintiff, v. CITY OF WILLISTON, Defendant and Third Party Plaintiff, v. Donald HACKNEY, Third Party Defendant. Civ.
• Court: North Dakota Supreme Court

Page 113

276 N.W.2d 113

John Mark BARTELS, Plaintiff, v. CITY OF WILLISTON, Defendant and Third Party Plaintiff, v. Donald HACKNEY, Third Party Defendant.

Civ. No. 9547.

Supreme Court of North Dakota.

Feb. 1, 1979.

Nilles, Hansen, Selbo, Magill & Davies, Fargo, for plaintiff; argued by Stephen W. Plambeck, Fargo.

Fleck, Mather, Strutz & Mayer, Bismarck, for defendant and third party plaintiff; argued by Thomas A. Mayer, Bismarck.

Zuger & Bucklin, Bismarck, for third party defendant; argued by William P. Zuger, Bismarck.

SAND, Justice.

The issues under consideration herein were presented in the form of certified questions involving and pertaining to the North Dakota Contribution Among Tort-Feasors Act, Chapter 32-38, North Dakota Century Code, and the comparative negligence act, § 9-10-07, NDCC. The facts are not in dispute.

On 11 March 1977, about 2:30 a. m., John Mark Bartels (plaintiff), a passenger in a 1976 Jeep Cherokee, was seriously injured, causing him to be a quadriplegic, when the Jeep, driven by its owner, Donald Hackney (third-party defendant), went over a cliff, landing on its roof.

The accident occurred on property under lease to the City of Williston for potential use as a sanitary landfill site. The land was under the control and possession of the City, and was being used for mining sand and gravel for the use and benefit of the city.

Subsequently, Bartels, through his attorney in fact, for the consideration of $50,000, gave a release ¹ to Donald Hackney and his insurer, American Family Insurance. The release was also ratified under oath by John Mark Bartels.

Bartels then brought an action against the City of Williston, which brought a third-party action against Donald Hackney. The third-party defendant, Hackney, moved for summary judgment under Rule 56, Federal Rules of Civil Procedure, seeking to have the third-party complaint against him dismissed. This gave rise to several legal issues.

The United States District Court, as permitted by Rule 47, North Dakota Rules of Appellate Procedure, certified the following questions to this court:

1. In an action for negligence arising under North Dakota Century Code § 9-10-07, does a release given in good faith to one of two or more persons liable in tort for the same injury, pursuant to N.D.C.C. Ch. 32-38, discharge the tort-feasor to whom it is given from all liability for contribution to any other tort-feasor?

2. In such an action, when determining the right of a tort-feasor to contribution, pursuant to North Dakota Century Code Ch. 32-38, shall the pro rata shares of the common liability be determined in proportion to the percentage of negligence attributable to each tort-feasor under North Dakota Century Code § 9-10-07?

3. In such action, when a plaintiff in good faith has given one of two or more persons liable in tort for his injury, a release pursuant to North Dakota Century Code Ch. 32-38, shall the finder of fact determine the percentage of negligence attributable to the released tort-feasor together with the percentage of negligence attributable to the parties and, if so, shall the award of damages to the plaintiff be reduced (a) in the manner specified by North Dakota Century Code § 32-38-04(1), or (b) by an amount proportionate to the percentage of negligence allocated to the released tort-feasor?

4. In the event that the opinions rendered on questions 1 through 3 above find that there has been an amendment of the original provisions of North Dakota Century Code Ch. 32-38 as enacted by the North Dakota Session Laws, 1957, ch. 223, Sections 1 through 4, what is the effective date of that amendment, and if amended prospectively only, does such amendment affect the rights of the parties in this litigation?

In resolving and answering the certified questions we need to consider all pertinent statutory provisions, their source and prior court construction, particularly the joint tort-feasor contribution act, Chapter 32-38, NDCC, and the comparative negligence act, § 9-10-07, NDCC.

The pertinent provisions of the joint tort-feasor contribution act provide as follows Section 32-38-01. Right to contribution.

"1. Except as otherwise provided in this chapter, where two or more persons become jointly or severally liable in tort for the same injury to person or property or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them.

"2. The right of contribution exists only in favor of a tort-feasor who has paid more than his pro rata share of the common liability, and his total recovery is limited to the amount paid by him in excess of his pro rata share. No tort-feasor is compelled to make contribution beyond his own pro rata share of the entire liability.

"3. There is no right of contribution in favor of any tort-feasor who has intentionally (willfully or wantonly) caused or contributed to the injury or wrongful death.

"4. A tort-feasor who enters into a settlement with a claimant is not entitled to recover contribution from another tort-feasor whose liability for the injury or wrongful death is not extinguished by the settlement nor in respect to any amount paid in settlement which is in excess of what was reasonable."

Section 32-38-02. Pro rata shares.

"In determining the pro rata shares of tort-feasors in the entire liability:

"1. Their relative degrees of fault shall not be considered.

"2. If equity requires the collective liability of some as a group shall constitute a single share.

"3. Principles of equity applicable to contribution generally shall apply."

Section 32-38-04. Release or covenant not to sue.

"When a release or a covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death:

"1. It does not discharge any of the other tort-feasors from liability for the injury or wrongful death unless its terms so provide; but it reduces the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater.

"2. It discharges the tort-feasor to whom it is given from all liability for contribution to any other tort-feasor."

These provisions were enacted in 1957 and were derived from the "Uniform Contribution Among Tort-Feasors Act" as revised in 1955 by the Commission on Uniform State Laws.

The commissioners made comments explaining the purpose of the act and other related matters. The commissioners' comment with reference to subsection (b), which is now § 32-38-01(1), states as follows:

"This provision is supported by several dozen decisions dealing with contribution in surety and other contract cases, and a court would almost certainly reach the result without the provision. It now appears desirable to spell it out."

With reference to subsection (d), which is § 32-38-01(4), the commissioners' comment states:

"The policy of the Act is to encourage rather than discourage settlements. The tort-feasor who settles removes himself entirely from the case as far as contribution is concerned if he is able and chooses to buy his peace for less than the entire liability. If he discharges the entire obligation it is only fair to give him contribution from those whose liability he has discharged. Since the settlement must be reasonable it follows that the question of total liability to the injured party may be litigated in the contribution action."

With reference to § 32-38-02, the commissioners' comment in part states as follows:

"First it recognizes and registers the lack of need for a comparative negligence or degree of fault rule in contribution cases. . . ."

"Second, it invokes the rule of equity which requires class liability, including the common liability arising from vicarious relationships, to be treated as a single share. . . .

"Third, it makes it clear that except as limited by the section, principles of equity shall control. . . ."

With reference to § 32-38-04(2), the Commissioners' comment first discussed the objectives of the 1939 act that a plaintiff, motivated by sympathy or spite, or because it might be easier to collect from one than the other, should not be permitted to release one tort-feasor from his fair share of liability and mulct another instead, and that the release from contribution affords too much opportunity for collusion between the plaintiff and the released tort-feasor against the one not released. It also recognizes complaints from states which adopted the act, that the act did not accomplish what it was intended to prevent. The commissioners' comment concluded by stating:

"It seems more important not to discourage settlements than to make an attempt of doubtful effectiveness to prevent discrimination by plaintiffs, or collusion in the suit. Accordingly, the subsection (2) provides that the release in good faith discharges the tort-feasor outright from all liability for contribution. This is consistent with subsection (1)(d) (subsection 4 of § 32-38-01) which provides that the settling tortfeasor has himself no right of contribution against another unless he has assumed the full responsibility to the claimant."

Victor E. Schwartz, ² in discussing comparative negligence, Section 16.7, Contribution among tortfeasors, page 262, observed that the uniform contribution among tortfeasors act was revised in 1955 by inserting the clause "their relative degrees of fault shall not be considered." (This language is now part of § 32-38-02(1), NDCC.) He further observed that North Dakota was one of the two states that adopted the 1955 version. He then stated:

"In North Dakota, this clause appears to have been superseded, at least in part, by the provision in the comparative negligence statute that 'contributions to awards shall be in proportion to the percentage of negligence attributable to each.' "

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