Bulman v. Hulstrand Const. Co., Inc.

Decision Date13 September 1994
Docket NumberNo. 940047,940047
Citation521 N.W.2d 632
PartiesJudy Ann BULMAN, Plaintiff and Appellant, v. HULSTRAND CONSTRUCTION CO., INC.; and the State of North Dakota, Defendants and Appellees, and Otto Moe and Robert Heim, individually and as partners doing business as Custom Tool & Repair Service, a/k/a CT & RS, and Custom Tool & Repair Service (CT & RS), Defendants. Civ.
CourtNorth Dakota Supreme Court

J.P. Dosland (argued), of Dosland, Nordhougen, Lillehaug, Johnson & Saande, Moorhead, MN., for plaintiff and appellant.

Steven A. Storslee (argued), of Fleck, Mather & Strutz, Bismarck, for defendant and appellee Hulstrand Const. Co.

Laurie J. Loveland (argued), Sol. Gen., Atty. General's Office, Bismarck, for defendant and appellee State of N.D.

Jeffrey White, Associate Gen. Counsel, Ass'n of Trial Lawyers of America, Washington, D.C. and David R. Bossart, of Conmy, Feste, Bossart, Hubbard & Corwin, Ltd., Fargo, for amicus curiae, Ass'n of Trial Lawyers of America. Brief filed.

LEVINE, Justice.

Judy Ann Bulman appeals from a summary judgment dismissing her wrongful death action against Hulstrand Construction Company and the State of North Dakota. We affirm the dismissal of Hulstrand. However, we hold that Art. I, § 9, N.D. Const., does not bestow exclusive authority upon the Legislature to waive or modify sovereign immunity of the State from tort liability and does not preclude this Court from abolishing that common-law doctrine. With limitations expressed in this opinion, we abolish that doctrine. We therefore reverse the dismissal of Bulman's action against the State, and we remand for proceedings consistent with this opinion.


On December 20, 1991, Bulman's husband, Lloyd C. Bulman, Jr., was killed in an automobile accident at a road construction site on U.S. Highway 85 near Amidon, North Dakota. When the accident occurred, the State's general contractor, Hulstrand, had suspended work on the construction project for the winter.

Bulman sued the State and Hulstrand, claiming the State negligently failed to inspect and maintain the roadway, warn the traveling public of hazardous conditions, and supervise Hulstrand's work on the project. She alleged Hulstrand negligently failed to correct dangerous driving conditions at the construction site, provide adequate warning signs, and comply with the duties imposed by its contract with the State.

The district court granted summary judgment for the defendants, concluding that sovereign immunity barred Bulman's action against the State, 1 and that, under its contract with the State, Hulstrand had no duty because the State, not Hulstrand, had control over the construction site during the winter suspension. Bulman appealed.


Bulman asserts that sovereign immunity for tort actions against the State should be judicially abolished. The State responds that Art. I, § 9, N.D. Const., authorizes only the Legislature to modify or waive the State's sovereign immunity and, because the Legislature has not done so for torts, the district court properly granted summary judgment dismissal of Bulman's action.

Sovereign immunity is a common-law doctrine which originated in court decisions. E.g., Nieting v. Blondell, 306 Minn. 122, 235 N.W.2d 597 (1975); Worthington v. State, 598 P.2d 796 (Wyo.1979). See Kitto v. Minot Park District, 224 N.W.2d 795 (N.D.1974). This case involves a fresh look at whether Art. I, § 9, N.D. Const., has elevated that common-law doctrine to a constitutional prohibition of suits against the State, which can only be waived by the Legislature.

Art. I, § 9, N.D. Const., was included in the North Dakota Constitution of 1889 2 as part of its declaration of individual rights. It says:

"All courts shall be open, and every man for any injury done him in his lands, goods, person or reputation shall have remedy by due process of law, and right and justice administered without sale, denial or delay. Suits may be brought against the state in such manner, in such courts, and in such cases, as the legislative assembly may, by law, direct."

Although the first sentence of Art. I, § 9, N.D. Const., is not absolute in that it does not require a remedy for every alleged wrong, we have said that it does guarantee an important substantive right--the right of access to courts for the redress of wrongs. Hanson v. Williams County, 389 N.W.2d 319 (N.D.1986); Andrews v. O'Hearn, 387 N.W.2d 716 (N.D.1986). Juxtaposed against this grant of an important substantive right is the limitation of the second sentence that "[s]uits may be brought against the state in such manner, in such courts, and in such cases, as the legislative assembly may, by law, direct." Historically, this Court has interpreted that limitation broadly to provide a constitutional basis for sovereign immunity, which can only be modified or waived by the Legislature. See Leadbetter v. Rose, 467 N.W.2d 431 (N.D.1991); Schloesser v. Larson, 458 N.W.2d 257 (N.D.1990); Dickinson Public School District v. Sanstead, 425 N.W.2d 906 (N.D.1988); Patch v. Sebelius, 320 N.W.2d 511 (N.D.1982); Senger v. Hulstrand Const., Inc., 320 N.W.2d 507 (N.D.1982); Kitto v. Minot Park District, 224 N.W.2d 795 (N.D.1974); Wright v. State, 189 N.W.2d 675 (N.D.1971); Spielman v. State, 91 N.W.2d 627 (N.D.1958); Dunham Lumber Co. v. Gresz, 70 N.D. 455, 295 N.W. 500 (1940); State ex rel. Shafer v. Lowe, 54 N.D. 637, 210 N.W. 501 (1926); Wirtz v. Nestos, 51 N.D. 603, 200 N.W. 524 (1924). Recently, however, the underlying basis for that interpretation has been questioned. Leadbetter (Meschke, J., dissenting); Schloesser (Meschke, J., dissenting); Sanstead (Meschke, J., concurring). See Note, Sovereign Immunity: An Outdated Doctrine Faces Demise in a Changing Judicial Arena, 69 N.D.L.Rev. 401 (1993).

Wirtz was our first reported decision discussing suits against the State in the context of that constitutional provision. In that case, unsecured depositors of insolvent, closed banks brought a proceeding in equity against the Depositors' Guaranty Fund Commission to compel the Commission to fully reimburse the depositors. The trial court granted a demurrer to the complaint. On appeal, the primary issue was whether the 1917 Guaranty Fund Law gave the depositors a vested right to full reimbursement of their claims in the chronological order that the insolvent banks closed, or whether a 1923 amendment, which modified the law to allow the Commission to prorate reimbursement, governed the depositor's claims. The depositors contended that, as a matter of law, depositors in banks that closed before the 1923 amendment were entitled to full reimbursement from the fund in the chronological order that the banks closed. This Court held that the depositors had no vested right to have their claims paid under the 1917 law. The Court then discussed the suability of the Commission and said that it was "an arm or a branch of the executive department of the state in executing a specific legislative policy, and is not suable without the consent of the state." Wirtz, supra, 200 N.W. at 531. The Court sustained the demurrer to the depositors' complaint for injunctive relief against the Commission, stating that neither the 1917 nor 1923 law authorized suits against the Commission for any matters arising out of the Commission's administration of the law. But the Court cautioned:

"Nothing that has been said can be construed as a holding that a depositor may not in a proper case proceed against the guaranty fund commission or its officers. It is not intended to be held that a depositor or other person may under no circumstances maintain an action in the proper forum, having for its object to require the guaranty fund commission or its officers to perform an official or legal duty not of a governmental character, owing to a class of persons of whom such depositor or person is a member. While the rule is that a suit cannot be maintained against the sovereign without its consent, it is equally well established that a clear official duty, not involving the exercise of discretion, may be enforced when performance thereof is arbitrarily refused, and that, if a person will receive injury because an official is about to violate an official or legal duty, for which adequate compensation cannot be had at law, such conduct may be enjoined....

"In order to guard against misconception or misunderstanding as to the legal effect of our conclusions, it should be reiterated that the guaranty fund commission is not, by this decision, put beyond or above the law and the Constitution. The rights of the citizen to due process, to the maintenance of the legal sanctity of the obligation of a contract, to the equal protection of the law, and to the enjoyment of the rights guaranteed by the Constitution of the state and of the nation, will be open to vindication, and their violation to redress against the commission, no less than against any person, natural or artificial. Neither the guaranty fund commission nor any officer may, under our legal system, set the Constitution at defiance; officers and private individuals alike must obey it and respect the rights of persons thereunder. No such rights are in jeopardy in the case at bar, and, if any such rights be endangered by the commission in the future, no injured person will be denied the redress or the remedies to which he is entitled under the fundamental law of the land."

Wirtz, supra, 200 N.W. at 534-35.

The effect of this Court's decision in Wirtz was to bar suits against the State to compel or enjoin performance of an official duty of a discretionary nature; however, Wirtz assures us that injured persons will not be denied redress or remedies under the fundamental law of the land. Subsequent decisions involving actions to enjoin law enforcement officials from enforcing a criminal conviction, State ex rel. Shafer v. Lowe, and to foreclose a mechanic's lien on a house in which the State had an interest, Dunham Lumber Co. v....

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