Grager v. Schudar

• Decision Date: 21 July 2009
• Docket Number: No. 20080302.,20080302.
• Citation: 2009 ND 140,770 N.W.2d 692
• Parties: Michele DeeAnn GRAGER, Plaintiff and Appellant v. Kevin SCHUDAR, individually and as an Employee of Barnes County, North Dakota, and Barnes County, a political subdivision of the State of North Dakota, Defendants and Appellees.
• Court: North Dakota Supreme Court

770 N.W.2d 692

2009 ND 140

Michele DeeAnn GRAGER, Plaintiff and Appellant v. Kevin SCHUDAR, individually and as an Employee of Barnes County, North Dakota, and Barnes County, a political subdivision of the State of North Dakota, Defendants and Appellees.

No. 20080302.

Supreme Court of North Dakota.

July 21, 2009.

Rehearing Denied August 27, 2009.

Michele DeeAnn Grager, Dwight, ND, pro se, plaintiff and appellant.

Randall J. Bakke (argued) and Shawn A. Grinolds (on brief), Smith Bakke Porsborg & Schweigert, Bismarck, ND, for defendant and appellee Kevin Schudar.

Howard D. Swanson, Letnes, Marshall, Swanson & Warcup, Ltd., Grand Forks, ND, for defendant and appellee Barnes County.

KAPSNER, Justice.

[¶ 1] Michele Grager appeals from a judgment and from an order denying her motion for a new trial in her action against Barnes County and Kevin Schudar, a jailer at the Barnes County Jail, stemming from Schudar's sexual act with Grager while she was a prisoner at the Barnes County Jail. A jury found that Barnes County was not negligent in supervising Schudar and that Grager consented to Schudar's sexual act. Grager argues the district court erred in instructing the jury that consent was a complete defense to her tort and constitutional claims, the court failed to properly instruct the jury on scope of employment, the court erred in instructing the jury on judicial notice, and the court erred in several evidentiary rulings. We hold the court erred in instructing the jury that Grager's consent to or participation in Schudar's conduct was a complete defense to her claims for assault, battery, intentional infliction of emotional distress, and civil rights violations, and we reverse and remand for further proceedings.

I

[¶ 2] Grager sued Barnes County and Schudar, individually and as an employee of Barnes County, alleging that while Grager was incarcerated in the Barnes County Jail in November 2004, Schudar sexually assaulted her. As a result of the incident, Schudar pled guilty to sexual abuse of a ward under N.D.C.C. § 12.1-20-06, which proscribes a jailer's sexual act with a prisoner regardless of the prisoner's consent. In this civil action, Grager sued Schudar for assault, battery, intentional infliction of emotional distress, and a violation of her civil rights, and she also sued Barnes County for negligent supervision of Schudar and for a violation of her civil rights. A jury found that Barnes County was not at fault in supervising Schudar and that Grager consented to Schudar's conduct. A judgment was entered dismissing Grager's civil action, and the district court thereafter denied Grager's motion for a new trial.

II

[¶ 3] Grager's "motion for appeal to the supreme court" does not clearly state whether she is appealing from the judgment or from the order denying her motion for a new trial. We construe Grager's notice of appeal liberally and treat her appeal as an appeal from the judgment and from the order denying her motion for a new trial. See Witzke v. Gonzales, 2006 ND 213, ¶ 4, 722 N.W.2d 374. We review an appeal from an order denying a motion for a new trial under the abuse-of-discretion standard. Okken v. Okken, 325 N.W.2d 264, 269 (N.D.1982). A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or when it misinterprets or misapplies the law. State v. $33,000.00 U.S. Currency, 2008 ND 96, ¶ 6, 748 N.W.2d 420. "`A trial court acts in an arbitrary, unreasonable, or unconscionable manner when its decision is not the product of a rational mental process by which the facts and law relied upon are stated and considered together for the purpose of achieving a reasoned and reasonable determination.'" Id. at ¶ 12 (quoting Gepner v. Fujicolor Processing, Inc., 2001 ND 207, ¶ 13, 637 N.W.2d 681).

III

[¶ 4] Although Grager filed a "motion for order of transcript of proceedings" and there is a transcript of the hearing on Grager's motion for new trial, this record does not include a transcript of the trial or any other proceedings in the district court. An appellant assumes the consequences and the risks of failing to provide a complete transcript. Lithun v. DuPaul, 447 N.W.2d 297, 300 (N.D.1989). If the record on appeal does not provide for a meaningful and intelligent review of an alleged error, we will decline to review the issue. Id. To the extent Grager raises issues about the admissibility of evidence or other issues that require a trial transcript for meaningful and intelligent review, her failure to provide a transcript precludes review of those issues. However, she also has raised issues about the propriety of jury instructions, which we can review on the record before us.

IV

[¶ 5] Grager argues the district court erred in instructing the jury that consent was a complete defense to her tort and constitutional claims. She contends the Legislature has determined that consent is not a defense to the criminal charge of sexual abuse of a ward under N.D.C.C. § 12.1-20-06, and an inmate is not legally capable of consenting to sexual assault by a jailer. She asserts it is incongruous for Schudar to be strictly liable in a criminal prosecution for the sexual offense, but for consent to be a complete defense in a civil action.

[¶ 6] Jury instructions must fairly and adequately inform the jury of the applicable law. Huber v. Oliver County, 1999 ND 220, ¶ 10, 602 N.W.2d 710. Although a party is entitled to instructions that present the party's theory of the case, a district court is not required to instruct the jury in the exact language sought by a party if the court's instructions correctly and adequately inform the jury of the applicable law. Olson v. Griggs County, 491 N.W.2d 725, 729 (N.D.1992). On appeal, jury instructions must be viewed as a whole, and if they correctly advise the jury of the law, they are sufficient although parts of them, standing alone, may be erroneous and insufficient. Kreidt v. Burlington N. R.R., 2000 ND 150, ¶ 6, 615 N.W.2d 153.

[¶ 7] The district court's instructions on consent provided a "complete defense" to Grager's claims for assault, battery, intentional infliction of emotional distress, and civil rights violations if Grager "consent[ed] to or participate[d] in the conduct" of Schudar:

CONSENT IS A DEFENSE

One who consents to or participates in the conduct of another cannot recover in an action for the conduct or for the harm resulting from it. Consent can be either express or implied. No one suffers a legal wrong as the result of an act to which one freely consents. One who consents to an act is not wronged by it under the law. The fact that someone was an inmate does not automatically render that person incapable of consenting to or participating in the conduct of another. Whether there is consent is a question of fact. Further, you may consider consent in your determination of damages, if any are awarded.

If you find Grager consented to the conduct of Schudar at the time of the incidents alleged in this matter, such consent is a complete defense to Grager's claims for assault, battery, intentional infliction of emotional distress, and civil rights violations.

CONSENSUAL SEXUAL ACT

A consensual sexual act between an inmate and a correctional officer does not violate the prisoner's constitutional rights and no civil rights liability may be imposed.

[¶ 8] Generally, one who consents to conduct that would otherwise be an intentional tort cannot recover damages for that conduct. Daniel B. Dobbs, The Law of Torts, § 95 (2001); see Restatement (2nd) of Torts, § 892A (1979) ("One who effectively consents to conduct of another intended to invade his interests cannot recover in an action of tort for the conduct or for harm resulting from it."); N.D.C.C. § 31-11-05(6) ("One who consents to an act is not wronged by it."). Professor Dobbs explains the rationale about consent in the context of intentional torts:

One who consents or apparently consents to acts that would otherwise count as an intentional tort cannot recover damages for those acts. Among the trespassory and intentional torts, consent defeats the claim for battery, for false imprisonment, and for trespass to land or chattels or conversion. For example, a sexual touching would be a battery if it is not effectively consented to, but if the plaintiff effectively consents to the touching, there is no battery. Similarly, the plaintiff consents to a friendly wrestling match with the defendant, the plaintiff cannot recover for injuries sustained in that match. An analogous rule applies in some but not all negligence cases under the name of assumed risk.

The consent principle is general in its scope, firm in its acceptance, and central in its significance. It makes the plaintiff's right of self-determination or autonomy the centerpiece of the law on intentional torts and to some extent other torts as well. Nevertheless, a cluster of subsidiary rules and definitions both enlarge and constrain its application.

Dobbs, The Law of Torts, at § 95 (footnotes omitted).

[¶ 9] Professor Dobbs also explains that apparent consent is not a defense if it was obtained by duress, or by an abuse of power, and an abuse of power includes sexual demands by employers, or by others in special positions of power. Dobbs, The Law of Torts, at §§ 95, 101-02. See also Restatement (2nd) of Torts, §§ 892B (1979) (consent is not effective if given under duress) and 892C (1979) (consent effective to bar recovery in tort action although conduct consented to is crime, but if conduct is made criminal in order to protect certain class of persons irrespective of their consent, consent of members of that class to conduct is not effective to bar tort action).

[¶ 10] Some courts have recognized that a prisoner's consent to sexual conduct with a prison official is a defense to a civil lawsuit for damages. See Freitas v. Ault, 109 F.3d 1335, 1338-39 (8th Cir.1997); Robins v. Harris, 769 N.E.2d 586, 587 (Ind...