Fastow v. Burleigh County Water Resource Dist.

• Decision Date: 19 November 1987
• Docket Number: No. 11424,11424
• Citation: 415 N.W.2d 505
• Parties: Michael FASTOW, Plaintiff and Appellant, v. BURLEIGH COUNTY WATER RESOURCE DISTRICT, f/k/a Burleigh County Water Management District; the Bismarck Park District, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 505

415 N.W.2d 505

Michael FASTOW, Plaintiff and Appellant, v. BURLEIGH COUNTY WATER RESOURCE DISTRICT, f/k/a Burleigh County Water Management District; the Bismarck Park District, Defendants and Appellees.

Civ. No. 11424.

Supreme Court of North Dakota.

Nov. 19, 1987.

Lundberg, Nodland, Lucas & Schulz, Bismarck, for plaintiff and appellant; argued by Thomas A. Dickson.

Zuger & Bucklin, Bismarck, for defendant and appellee Burleigh County Water Resource Dist.; argued by Brenda Lynn Blazer.

Pearce & Durick, Bismarck, for defendant and appellee Bismarck Park Dist.; argued by Joel W. Gilbertson.

ERICKSTAD, Chief Justice.

Michael Fastow appeals from a summary judgment dismissing his action against the Burleigh County Water Resource District (Water District) and partially dismissing his action against the Bismarck Park District (Park District). We reverse and remand.

McDowell Dam is a man-made recreation area located in Burleigh County. It is owned by the Water District and leased to the Park District, which provides for the management, operation, and maintenance of the facility. All expenses for those functions are paid by the Water District, which retains the right to approve or amend the proposed annual operation and maintenance budget for the facility.

While swimming at McDowell Dam on July 15, 1984, Fastow dove into the water within the designated swimming area and injured his spinal cord, rendering him a quadriplegic. Fastow has alleged various grounds upon which he asserts the Water District and the Park District are liable for his injuries. Fastow asserts that the defendants breached their duty to provide proper and adequate lifeguard protection, to maintain and provide adequate first-aid facilities and equipment, to provide for prompt telephone communication with medical and law enforcement authorities, to provide proper and adequate warnings of the dangers inherent in diving, to provide adequate inspection of the swimming area to keep it free of foreign objects, and to provide adequately trained employees and adequate supervision. Fastow also asserts that specific employees of the Park District and the Water District, who were responsible for the management and supervision of McDowell Dam, caused his injuries by having "failed to properly supervise, manage, and provide adequate facilities...."

Upon motions by the defendants the district court entered a partial summary judgment of dismissal accompanied by a Rule 54(b), N.D.R.Civ.P., certification. Construing North Dakota's Recreational Use Statute, Chapter 53-08, N.D.C.C., together with Chapter 32-12.1, N.D.C.C., the trial court determined that, as a matter of law, Fastow has no cause of action against the Water District and that Fastow has a cause of action against the Park District only under his allegations of employee negligence. The trial court also determined that each defendant has a statutory liability limit in this case of $250,000.

Determination of the following issues are necessary to resolve this case on appeal:

(1) Whether or not Chapter 53-08, N.D.C.C., which limits liability of recreational landowners, is applicable to political subdivisions; and

(2) Whether or not a political subdivision waives its governmental immunity to the extent of purchased insurance coverage.

Chapter 53-08, N.D.C.C., limits the liability of landowners for injuries sustained by recreational users who are permitted to enter and use the land without charge. The statute precludes landowner liability for ordinary negligence. Fastow asserts that the trial court erred in concluding that the limitation of liability afforded by Chapter 53-08, N.D.C.C., is applicable to political subdivisions, and more specifically, to the Water District and the Park District in this case.

Fastow asserts that the legislative intent in enacting Chapter 53-08, N.D.C.C., was to encourage private landowners to make their property available to the public for recreational use. He further asserts that the Legislature did not intend application of the statute to political subdivisions because in 1965, the year in which the statute was enacted, political subdivisions enjoyed governmental immunity from liability in all civil actions and therefore had no need for the liability protection afforded by the statute. A number of authorities construing recreational use statutes similar to Chapter 53-08, N.D.C.C., have concluded that they are inapplicable to and do not provide liability limitations for governmental entities. See, e.g., Hovet v. City of Bagley, 325 N.W.2d 813 (Minn.1982); Ferres v. City of New Rochelle, 68 N.Y.2d 446, 510 N.Y.S.2d 57, 502 N.E.2d 972 (1986); Borgen v. Ford Pitt Museum Associates, Inc., 83 Pa.Commw. 207, 477 A.2d 36 (1984). However, we agree with the trial court that in this state the interpretation and application of Chapter 32-12.1, N.D.C.C., relating to political subdivision liability, is dispositive of the issue and requires application of Chapter 53-08, N.D.C.C., to political subdivisions.

Chapter 53-08, N.D.C.C., does not expressly exclude political subdivisions from the protection it affords owners of recreational land, but, as Fastow correctly asserts, at the time of the statute's enactment political subdivisions enjoyed governmental immunity from civil actions. Subsequently, in Kitto v. Minot Park District 224 N.W.2d 795 (N.D.1974), this court abolished the doctrine of governmental immunity for political subdivisions in this state, declaring them subject to suit for damages to individuals injured by the negligent or wrongful acts or omissions of their agents and employees. We applied our decision in Kitto to the parties in that case, but we expressly delayed future application of the Kitto decision to cases arising fifteen days or more after the adjournment of the next legislative session to allow the Legislature an opportunity to enact legislation on the subject. In apparent response to the Kitto decision the Legislature enacted Chapter 32-12.1, N.D.C.C., of which subsection 32-12.1-03(1), N.D.C.C., is particularly relevant to the issue before us:

"1. Each political subdivision shall be liable for money damages for injuries when the injuries are proximately caused by the negligence or wrongful act or omission of any employee acting within the scope of the employee's employment or office under circumstances where the employee would be personally liable to a claimant in accordance with the laws of this state, or injury caused from some condition or use of tangible property, real or personal, under circumstances where the political subdivision, if a private person, would be liable to the claimant."

Under the foregoing provision a political subdivision is liable for injury caused from a condition or use of real property only under those circumstances in which a private person would be liable for such injury. We believe that this provision unambiguously makes the liability protections of Chapter 53-08, N.D.C.C., applicable to political subdivisions in the same manner and under the same circumstances as those protections are applicable to a private owner of recreational land. This interpretation is supported by interpretations of similar provisions by other courts. See Umpleby v. United States, 806 F.2d 812 (8th Cir.1986); Gard v. United States, 594 F.2d 1230 (9th Cir.1979); Watson v. City of Omaha, 209 Neb. 835, 312 N.W.2d 256 (1981).

In Umpleby, supra, the Eighth Circuit Court of Appeals held that our Recreational Use Statute, Chapter 53-08, N.D.C.C., is applicable to the United States Army Corps of Engineers by virtue of the Federal Tort Claims Act, 28 U.S.C. Section 2671 et seq. (1982), (FTCA):

"Under the FTCA the United States is liable for tort claims 'in the same manner and to the same extent as a private individual under like circumstances....' 28 U.S.C. Sec. 2674. '[T]he test established by the Tort Claims Act for determining the United States' liability is whether a private person would be responsible for similar negligence under the laws of the State where the acts occurred.' Rayonier v. United States, 352 U.S. 315, 319, [77 S.Ct. 374, 376, 1 L.Ed.2d 354] (1957). Applying this test, the liability of the Corps is limited by the North Dakota Recreational Use Statute [Chapter 53-08, N.D.C.C.] to the same extent as the liability of a private citizen." 806 F.2d at 815.

Similar language under subsection 32-12.1-03(1), in like manner makes Chapter 53-08, N.D.C.C., applicable to political subdivisions, limiting their liability to the same extent as that of a private citizen.

We agree with the following rationale of the Nebraska Supreme Court in Watson, supra, underlying its interpretation of similar statutory provisions:

"The Legislature, in enacting the Political Subdivisions Tort Claims Act and thereby declaring a political subdivision responsible for its torts in the same manner as a private individual, is presumed to have knowledge of previous legislation, including the Recreation Liability Act.... Having placed no limitation upon this declaration or upon the definition of 'owner' in the Recreation Liability Act, we believe that the intent of the Legislature, as reflected by the clear language of both statutes, was to grant the same rights and privileges to governmental and private landowners alike." 312 N.W.2d at 259. (Citation omitted.)

We conclude that the trial court did not err in determining that Chapter 53-08 N.D.C.C., is applicable to political subdivisions.

The trial court determined that subsection...