Hovland v. City of Grand Forks, 960269

• Decision Date: 13 May 1997
• Docket Number: No. 960269,960269
• Citation: 1997 ND 95,563 N.W.2d 384
• Parties: Caroline HOVLAND and Daryl Hovland, individually and as wife and husband, Plaintiffs and Appellants, v. CITY OF GRAND FORKS, Defendant and Appellee. Civil
• Court: North Dakota Supreme Court

Page 384

563 N.W.2d 384

1997 ND 95

Caroline HOVLAND and Daryl Hovland, individually and as wife and husband, Plaintiffs and Appellants, v. CITY OF GRAND FORKS, Defendant and Appellee.

Civil No. 960269.

Supreme Court of North Dakota.

May 13, 1997.

Rehearing Denied June 24, 1997.

Shirley A. Dvorak of Moosbrugger, Dvorak & Carter, Grand Forks, for plaintiffs and appellants. Submitted on brief.

Ronald F. Fischer of Pearson, Christensen, Larivee, Clapp, Fiedler & Fischer, Grand Forks, for defendant and appellee. Submitted on brief.

NEUMANN, Justice.

¶1 Caroline and Daryl Hovland appeal from a summary judgment in favor of the City of Grand Forks, dismissing the Hovlands' claim for injuries Caroline sustained while in-line skating on a city bike path. We reverse the district court's decision and hold the City is not immune under North Dakota's recreational use statute.

¶2 In 1993, Caroline Hovland was injured while in-line skating with her daughter, Carla, and stepson, Derek, on a bike path owned and maintained by the City of Grand Forks. The bike path was adjacent to the Red River and was somewhat rolling. Caroline, Carla, and Derek approached a slight decline in the bike path; at the bottom of this decline, a section of the asphalt was damaged. Carla, skating in front of Caroline, avoided the damaged asphalt. Caroline hit the damaged portion and fell, suffering a broken wrist.

¶3 The Hovlands sued the City for Caroline's injuries under a negligence theory. They asserted the City knew the bike path was used for in-line skating and had a duty to inspect and maintain all bike path areas. An engineer's aid construction coordinator with the City testified in a deposition that he inspected the City's entire bike path system annually. However, in 1992 and 1993, he explained he did not inspect the portion where Caroline sustained her injuries because of confusion over responsibility for that section. The Hovlands claimed the City's failure to inspect and maintain the bike path caused Caroline's injuries.

¶4 The City moved for summary judgment, contending it was immune from suit under North Dakota's recreational use statute, N.D.C.C. ch. 53-08, citing Fastow v. Burleigh County Water Resource Dist., 415 N.W.2d 505 (N.D.1987). The district court, relying on Fastow, granted the City's summary judgment motion, stating "[i]t is well settled law that the recreational use statute does apply to political subdivisions as well as private land." The Hovlands appeal the judgment, arguing the immunity under the recreational use statute, N.D.C.C. ch. 53-08, does not shield the City from liability for injuries resulting on a damaged bike path.

¶5 Summary judgment is a procedure for promptly disposing of a lawsuit without a trial. P.E. v. W.C., 552 N.W.2d 375, 380 (N.D.1996). If, after viewing the evidence in the light most favorable to the non-moving party and giving that party the benefit of all favorable inferences, there is no genuine issue of dispute as to the facts or any inferences to be drawn from the undisputed facts, or if the only question presented is a question of law, summary judgment is proper. Id. at 380 (citing Diegel v. City of West Fargo, 546 N.W.2d 367, 370 (N.D.1996)). See Rule 56, N.D.R.Civ.P. In reviewing an appeal from a summary judgment, we view the evidence in the light most favorable to the non-moving party and then determine if the trial court properly granted summary judgment as a matter of law. Ertelt v. EMCASCO Ins. Co., 486 N.W.2d 233, 234 (N.D.1992) (citing Binstock v. Tschider, 374 N.W.2d 81, 83 (N.D.1985)).

¶6 In 1965, North Dakota created a recreational use immunity statute to protect landowners who opened their land for recreational purposes. See N.D. Sess. Laws, ch. 337 (1965), codified at N.D.C.C. ch. 53-08. Under N.D.C.C. § 53-08-02 "an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes." ¹

¶7 The City of Grand Forks argues the recreational use statute shields it from liability for Hovland's in-line skating accident on the public bike path. ² In making this argument, the City relies on a part of Fastow which discusses applying the recreational use statute, N.D.C.C. ch. 53-08, to the political subdivision liability statute, N.D.C.C. § 32-12.1-03(1). Fastow, 415 N.W.2d at 508. According to the City, Fastow holds that because political subdivisions are only liable when private landowners are liable under N.D.C.C. § 32-12.1-03(1), ³ political subdivisions are not liable in recreational use lawsuits because private landowners are not liable. Id. We disagree.

¶8 In Fastow, this court reversed a summary judgment dismissing Fastow's claim, holding that under N.D.C.C. § 32-12.1-05, the defendant political subdivisions had waived whatever right to governmental immunity they might have had by purchasing insurance coverage. Fastow, 415 N.W.2d at 510. Although Fastow discusses N.D.C.C. ch. 53-08 and states "the liability protections of Chapter 53-08, N.D.C.C., [are] 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," that discussion was immaterial to the holding. Id. at 508. To reach our holding in Fastow, this court did not need to discuss whether N.D.C.C. ch. 53-08 provided the government with immunity under N.D.C.C. § 32-12.1-03(1); the application of N.D.C.C. § 32-12.1-05 waived any possible governmental immunity defense. Contrary to the City's contention that Fastow establishes political subdivision immunity under N.D.C.C. ch. 53-08, the Fastow court's discussion of N.D.C.C. ch. 53-08 is a dictum, and we are not compelled by stare decisis to follow it here.

¶9 The Hovlands argue N.D.C.C. § 53-08-02 was not intended to insulate political subdivisions from liability. The legislature's intent, the Hovlands maintain, was to encourage private landowners to open their land for recreational purposes. The Hovlands rely on cases from several other jurisdictions as well as the "Model Act" to support their argument. This Model Act, drafted by the Council of State Governments as "Suggested State Legislation," is very similar to North Dakota's recreational use statute. The suggested legislation states it "is designed to encourage availability of private lands by limiting the liability of owners...." (Emphasis added.) 24 Council of State Governments, "Public Recreation of Private Lands: Limitations on Liability," Suggested State Legislation, 150 (1965).

¶10 An independent review of N.D.C.C. § 53-08-02 leads us to agree with the Hovlands. The legislative history of N.D.C.C. § 53-08-02 indicates the law was intended to encourage landowners to open their land to the public for recreational purposes. Hearing on S.B. 312, Minutes from the Senate Agriculture Committee, 39th Legislative Assembly, February 4, 1965. At the time the statute was enacted, public lands enjoyed immunity from liability in all civil actions and thus did not need protection. Furthermore, according to the legislative history, the statute was patterned after Indiana's. Id. Indiana did not intend to grant immunity to political subdivisions under their recreational use statute. See City of Bloomington v. Kuruzovich, 517 N.E.2d 408, 414 (Ind.App. 4 Dist.1987).

¶11 The City argues this interpretation does not account for our political subdivision liability statute which makes political subdivisions liable only when private landowners are liable; we disagree. We have often said that we will not interpret a statute in a manner that produces an absurd or ludicrous result. Estate of Laschkewitsch, 507 N.W.2d 65, 67 (N.D.1993); Keepseagle v. Backes, 454 N.W.2d 312, 315 (N.D.1990). If we adopt the City's proposed interpretation of the statute, political subdivisions would be immune for all the recreational purposes outlined in N.D.C.C. § 58-03-01(4). ⁴ This would give political subdivisions immunity for injuries caused any time a person used public roads or public property for "purposes of the user." N.D.C.C. § 58-03-01(4). This definition is so broad, it would be hard to conceive an injury for which the political subdivision could not claim immunity. In essence, it would reinstate governmental immunity in North Dakota. In Kitto v. Minot Park Dist., 224 N.W.2d 795 (N.D.1974), this court abolished the doctrine of governmental immunity as it applied to political subdivisions, but only applied the holding to the parties, expressly reserving the legislature's right to enact legislation on the subject. Id. at 804. The legislature followed Kitto by providing for the liability of political subdivisions under N.D.C.C. § 32-12.1-03. See also Bulman v. Hulstrand Const. Co., 521 N.W.2d 632, 634 (N.D.1994) ("Although ... Art. I, § 9, N.D. Const., is not absolute in that it does not require a remedy for every alleged wrong, ... it does guarantee an important substantive right--the right of access to courts for the redress of wrongs."). Applying the recreational use statute to the political subdivision liability statute completely circumvents the legislature's intent under N.D.C.C. § 32-12.1-03 and leads to an unintended and absurd result.

¶12 Moreover, if a statute is susceptible of two constructions, one that would render it of doubtful constitutionality and one that would not, this court must adopt the construction rendering it constitutional. Adoption of K.A.S., 499 N.W.2d 558, 567 (N.D.1993); see also Hanson v. Williams County, 389 N.W.2d 319, 324 (N.D.1986); Patch v. Sebelius, 320 N.W.2d 511, 513 (N.D.1982); N.D.C.C. § 1-02-38(1)(explaining that in enacting a statute, compliance with the state and federal constitution is presumed). Interpreting the statute as the City suggests raises a serious equal protection question.

¶13 If public lands...