Ficek v. Morken, 20030295.

• Decision Date: 04 August 2004
• Docket Number: No. 20030295.,20030295.
• Parties: Gary A. FICEK and Rhonda K. Ficek, Plaintiffs and Appellees v. James P. MORKEN and Carol C. Morken, Defendants and The City of Fargo, Defendant and Appellant.
• Court: North Dakota Supreme Court

685 N.W.2d 98

2004 ND 158

Gary A. FICEK and Rhonda K. Ficek, Plaintiffs and Appellees v. James P. MORKEN and Carol C. Morken, Defendants and The City of Fargo, Defendant and Appellant.

No. 20030295.

Supreme Court of North Dakota.

August 4, 2004.

Ronald H. McLean (argued) and Timothy G. Richard (appeared), Serkland Law Firm, Fargo, ND, for plaintiffs and appellees. Patricia Ann Roscoe, Assistant City Attorney (argued), and Garylle B. Stewart, City Attorney (appeared), Solberg Stewart Miller and Tjon, Fargo, ND, for defendant and appellant.

Jerald A. Hjelmstad, North Dakota League of Cities, Bismarck, ND, for amicus curiae.

David L. deCourcy, Falls Church, VA, and Garylle B. Stewart, City Attorney, Solberg Stewart Miller and Tjon, Fargo, ND, for amicus curiae International Code Council.

KAPSNER, Justice.

[¶ 1] The City of Fargo appealed from a judgment entered on a jury verdict awarding Gary A. Ficek and Rhonda K. Ficek $107,000 plus costs and disbursements in the Ficeks' action against James P. Morken, Carol C. Morken, and the City. We reject the City's invitation to adopt the public duty doctrine because it is incompatible with North Dakota law, and we conclude the district court did not err in instructing the jury that the City had a duty to properly inspect the construction of the Ficeks' residence and to enforce the building codes at the time the house was constructed. We affirm.

I

[¶ 2] In 1988 the Morkens began constructing a two-story addition to their home at 1831 Third Street North in Fargo. On June 27, 1988, the City issued the Morkens a building permit listing them as the "Contractor," and James Morken performed much of the construction work by himself, including forming and pouring a new foundation. During the approximately two-year period it took to complete the house, the City's building inspectors visited and inspected the house more than 40 times for compliance with the building code. On July 10, 1990, the City issued the Morkens a certificate of occupancy, certifying that the building met applicable building codes.

[¶ 3] The Ficeks purchased the house from the Morkens in May 1996, and as time passed, the Ficeks noticed problems with the home's construction. Experts inspected the home and determined it does not comply with the City's building code in several respects. The natural gas piping did not meet code requirements. Windows and roof vents were installed without proper flashing, siding had not been installed and sealed properly, and no vapor barrier existed in most of the interior walls, causing water leaks and condensation to form. The structural supports in the house were significantly overloaded and the house foundation did not have adequate frost depth footings. The structure was built on uncontrolled fill, causing the house to heave and settle in different directions and damaging the structure. In April 2002, a structural engineer advised the Ficeks to either fix the foundation of the house immediately or vacate the residence.

[¶ 4] The Ficeks brought this action against the Morkens and the City, asserting the City "owed a duty to ensure that all buildings are constructed according to relevant building codes and to properly inspect buildings under construction to ensure the builder is following all relevant building codes," and the City "breached its duty by negligently inspecting and approving the construction of the foundation of the subject residence, as said foundation does not meet the required building code." The Ficeks asserted the Morkens had committed constructive and actual fraud, breach of warranty, negligence, and consumer fraud. The Ficeks also sought equitable rescission and punitive damages from the Morkens. [¶ 5] During the trial, the City requested the following instruction based on the public duty doctrine:

MUNICIPAL BUILDING INSPECTION

A municipality has the power, granted to it by law, to provide for the inspection of all building construction within the limits of the municipality.

Duty of Municipality

Building codes, building permits, and building inspections are devices for the protection of the general public and are not for the specific benefit of an individual. The issuance of a building permit does not make a municipality an insurer against defective construction. Unless there is a special relationship between the plaintiffs and the municipality, the municipality owes no duty of care to insure compliance with the building code.

A special relationship requires that there be direct contact or privity with the public building official who, in response to a specific inquiry, represented that the building complied with the building code, coupled with reasonable reliance on that representation by the plaintiff.

Instead, the district court gave the jury an instruction fashioned after the Ficeks' requested instruction based on Tom Beuchler Constr., Inc. v. City of Williston, 392 N.W.2d 403 (N.D.1986):

NEGLIGENT INSPECTIONS/APPROVAL — CITY OF FARGO

The City of Fargo owed a duty to the Ficeks and any other purchaser to properly inspect the construction of the house in this case and to enforce the building codes in force at the time the house was constructed. Because the City can only act through its employees, the City is liable for the negligence of its employees William Eide and Ronald Strand. The City of Fargo is liable for all damages proximately caused by its employees' negligent inspection and approval of the construction of the house as being in compliance with applicable building codes.

[¶ 6] During closing arguments to the jury, the attorney for the City conceded the City was negligent but argued its negligence was not the proximate cause of the Ficeks' damages. The jury found in favor of the Ficeks on all claims. The jury found the Morkens and the City each 50 percent at fault in causing the Ficeks' damages in the amount of $214,000. The City appealed from the judgment entered against it, inclusive of costs and disbursements, for $133,821.89.

II

[¶ 7] The sole issue on appeal is whether the district court committed reversible error in instructing the jury that the City owed the Ficeks a duty to properly inspect the construction of the house and to enforce the applicable building codes at the time the house was constructed.

[¶ 8] Jury instructions must correctly and adequately inform the jury of the applicable law and must not mislead or confuse the jury. Nesvig v. Nesvig, 2004 ND 37, ¶ 12, 676 N.W.2d 73. We review jury instructions as a whole to determine their correctness, and instructions will be allowed if, as a whole, they fairly advise the jury of the law on the essential issues in the case. Rittenour v. Gibson, 2003 ND 14, ¶ 15, 656 N.W.2d 691.

[¶ 9] Actionable negligence consists of a duty on the part of the allegedly negligent party to protect the plaintiff from injury, a failure to discharge that duty, and a resulting injury proximately caused by the breach of that duty. Groleau v. Bjornson Oil Co., Inc., 2004 ND 55, ¶ 6, 676 N.W.2d 763. To establish a cause of action for negligence, the plaintiff must show the defendant had a duty to protect the plaintiff from injury. Grewal v. North Dakota Ass'n of Counties, 2003 ND 156, ¶ 9, 670 N.W.2d 336. Whether a duty exists is generally a question of law for the court, but if the existence of a duty depends upon the resolution of factual issues, the facts must be resolved by the trier of fact. Iglehart v. Iglehart, 2003 ND 154, ¶ 11, 670 N.W.2d 343. If no duty exists on the part of the alleged tortfeasor, there is no actionable negligence. Diegel v. City of West Fargo, 546 N.W.2d 367, 370 (N.D.1996).

A

[¶ 10] The City argues it owed no duty to the Ficeks because of the public duty doctrine.

[¶ 11] This Court has never adopted, or even specifically addressed, the public duty doctrine. Simply stated, under the public duty doctrine, when a statute or common law "imposes upon a public entity a duty to the public at large, and not a duty to a particular class of individuals, the duty is not one enforceable in tort." 1 D. Dobbs, The Law of Torts § 271, at p. 723 (2000) (footnote omitted) ("Dobbs"). The judicially-created public duty doctrine is rooted in a mid-19th century United States Supreme Court decision:

The origin of the public duty doctrine can be traced to South v. Maryland, 59 U.S. (18 How.) 396, 15 L.Ed. 433 (1855). In South, the plaintiff alleged that he was kidnapped and held for a period of four days and released only when he secured the ransom money demanded by his kidnappers. He also asserted that the local sheriff knew that he had been unlawfully detained yet did nothing to obtain his release. The plaintiff sued the sheriff for refusing to enforce the laws of the state and for failing to protect the plaintiff. The circuit court awarded plaintiff a substantial judgment. The Supreme Court reversed and declared that a sheriff's duty to keep the peace was "a public duty, for neglect of which he is amenable to the public, and punishable by indictment only." 59 U.S. (18 How.) at 403.

The public duty doctrine was apparently accepted by most state courts in the late nineteenth and early twentieth centuries. The leading treatise on tort law during the era stated:

The rule of official responsibility, then, appears to be this: That if the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, must be a public, not an individual injury, and must be redressed, if at all, in some form of public prosecution. On the other hand, if the duty is a duty to the individual, then a neglect to perform it, or to perform it properly, is an individual wrong, and may support an individual action for damages.

T. Cooley, A Treatise on the Law of Torts 379 (1879).

Leake v. Cain, 720 P.2d 152, 155 & n. 6 (Colo.1986).

[¶ 12] The public policy concerns underlying the public duty doctrine have been summarized...