Hurt v. Freeland

• Decision Date: 27 January 1999
• Docket Number: No. 980169,980169
• Citation: 589 N.W.2d 551
• Parties: Alice HURT, Plaintiff and Appellant, Eric Hurt, and Ernie Mathias on behalf of Brady Hurt, a minor, Plaintiffs v. Tyler FREELAND, Defendant Traci Olson, and Timothy Olson, Defendants and Appellees Civil
• Court: North Dakota Supreme Court

Page 551

589 N.W.2d 551

1999 ND 12

Alice HURT, Plaintiff and Appellant Eric Hurt, and Ernie Mathias on behalf of Brady Hurt, a minor, Plaintiffs v. Tyler FREELAND, Defendant Traci Olson, and Timothy Olson, Defendants and Appellees

Civil No. 980169.

Supreme Court of North Dakota.

Jan. 27, 1999.

Thomas A. Dickson and Timothy Q. Purdon, Dickson Law Office, Bismarck, N.D., for plaintiff and appellant; argued by Thomas A. Dickson.

Daniel L. Hull, Anderson & Bailly, Fargo, N.D., for defendants and appellees.

SANDSTROM, Justice.

¶1. In this case we are asked to decide whether passengers are liable for the injuries and deaths caused by an intoxicated driver. We are also asked to decide whether false testimony may create civil liability. We affirm the summary judgments of dismissal, concluding that absent a special relationship, not present here, there is no basis for liability on the part of passengers of an intoxicated driver, and there is no basis for civil liability based on the claimed false testimony.

I

¶2. As reported in Hurt v. Freeland, 1997 ND 194, 569 N.W.2d 266, this case arises from an automobile accident on December 24, 1993. A pickup driven by Cory Meyer, with Traci and Tim Olson and Tyler Freeland as passengers, collided with a car driven by Douglas Hurt, with his father, Edwin Hurt, and Douglas's wife, Sandra Hurt, and Douglas and Sandra's two sons, Eric and Brady Hurt, as passengers. Edwin, Douglas, and Sandra Hurt were killed. Eric and Brady Hurt were seriously injured.

¶3. Meyer, the Olsons, and Freeland had been consuming alcohol. The Olsons spent part of Christmas Eve drinking in the Ludden Tavern. After they left the tavern, they went to Freeland's trailer in Ludden. In the early evening, the Olsons, being too intoxicated to drive, asked Meyer for a ride to Oakes, where Traci Olson's mother lived. Meyer agreed, even though Oakes was somewhat beyond his destination, his parents' farm south of Oakes. While traveling north to Oakes from Ludden, the pickup hit a patch of ice and crossed into the southbound lane. Tim Olson told Meyer how to move the pickup off the ice and back into the northbound lane. Just before impact, Tim Olson told the occupants of the vehicle to "Brace yourselves."

¶4. Edwin Hurt's wife, Alice Hurt, and Eric Hurt, and Ernie Mathias on behalf of Brady Hurt, a minor, sued the Olsons and Tyler Freeland on traditional negligence grounds. ¹ On the Olsons' motion, the court granted partial summary judgment on those grounds, but allowed the Hurts to amend their complaint. The Hurts' amended complaint alleged passenger negligence, civil conspiracy, state RICO, intentional infliction of emotional distress, and prima facie tort. The Olsons again moved for summary judgment. The district court granted their motion, dismissing the amended complaint against them. Freeland did not appear in the action or answer the complaint. Because Freeland did not answer the complaint and was neither dismissed from this case nor had judgment entered against him, we dismissed the appeal for lack of Rule 54(b), N.D.R.Civ.P., certification, because of the unresolved claim between the Hurts and Freeland. Hurt, 1997 ND 194, p 6, 569 N.W.2d 266.

¶5. Following our dismissal of the appeal, the Hurts moved the district court to reconsider its grant of summary judgment. The district court denied the motion. On March 15, 1998, the district court included Freeland in its orders granting summary judgment nunc pro tunc. Judgment was entered on March 20, 1998. Alice Hurt appealed, ² on the grounds of passenger liability and civil conspiracy to commit perjury.

¶6. The district court had jurisdiction under N.D.C.C. § 27-05-06. Hurt's appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-27-01.

II

¶7. Summary judgment is a procedure for the prompt and expeditious disposition of a controversy without trial if either litigant is entitled to judgment as a matter of law, if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving factual disputes would not alter the results. Swenson v. Raumin, 1998 ND 150, p 8, 583 N.W.2d 102 (citing Perry Center, Inc. v. Heitkamp, 1998 ND 78, p 12, 576 N.W.2d 505). On appeal, the evidence must be viewed in the light most favorable to the opposing party, and that party must be given the benefit of all favorable inferences. Wishnatsky v. Bergquist, 550 N.W.2d 394, 397 (N.D.1996).

¶8. In considering a motion for summary judgment, a court may examine the pleadings, depositions, admissions, affidavits, interrogatories, and inferences to be drawn from that evidence to determine whether summary judgment is appropriate. Matter of Estate of Otto, 494 N.W.2d 169, 171 (N.D.1992). Although the party seeking summary judgment has the burden to clearly demonstrate there is no genuine issue of material fact, the court must also consider the substantive standard of proof at trial when ruling on a summary judgment motion. State Bank of Kenmare v. Lindberg, 471 N.W.2d 470, 474-75 (N.D.1991). The party resisting the motion may not simply rely upon the pleadings or upon unsupported, conclusory allegations, but must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact, and must, if appropriate, draw the court's attention to relevant evidence in the record raising an issue of material fact. Kummer v. City of Fargo, 516 N.W.2d 294, 297 (N.D.1994). Summary judgment is proper against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case and on which that party will bear the burden of proof at trial. Matter of Estate of Stanton, 472 N.W.2d 741, 746 (N.D.1991).

¶9. Although negligence actions are ordinarily not appropriate for summary judgment, whether a duty exists is generally a preliminary question of law for the court to decide. Crowston v. Goodyear Tire & Rubber Co., 521 N.W.2d 401, 406 (N.D.1994); DeLair v. County of LaMoure, 326 N.W.2d 55, 58 (N.D.1982). If the existence of a duty depends upon factual determinations, the facts must be determined by the fact finder. Rawlings v. Fruhwirth, 455 N.W.2d 574, 577 (N.D.1990); Barsness v. General Diesel & Equipment Co., 383 N.W.2d 840, 843 (N.D.1986). Issues of fact, however, may become issues of law for the court, if reasonable persons could reach only one conclusion from the facts. Rawlings, 455 N.W.2d at 577.

III

¶10. Hurt argues the Olsons, as passengers, negligently breached a duty owed to the Hurts when they arranged for Meyer to give them a ride.

A

¶11. To establish a cause of action for negligence, Hurt must demonstrate the Olsons owed the decedents a duty of care, which the Olsons breached. In Diegel v. City of West Fargo, 546 N.W.2d 367, 370 (N.D.1996), we stated negligence "consists of a duty on the part of an allegedly negligent person to protect the plaintiff from injury, a failure to discharge the duty, and a resulting injury proximately caused by the breach of the duty" (citing Rawlings, 455 N.W.2d at 576; Carlson Homes, Inc. v. Messmer, 307 N.W.2d 564, 566 (N.D.1981)). If no duty exists on the part of the defendant, there is no negligence. DeLair, 326 N.W.2d at 58; Belt v. City of Grand Forks, 68 N.W.2d 114, 119 (N.D.1955).

B

¶12. Hurt has not cited, nor have we found, any North Dakota authority stating vehicle passengers owe a duty to a third party for injuries caused by a driver's negligence.

¶13. In analyzing when a duty exists, Professors Prosser and Keeton have said:

The court must balance the following factors when determining the existence of duty in each particular case: (1) foreseeability of harm to plaintiff; (2) degree of certainty that plaintiff suffered injury; (3) closeness of connection between defendant's conduct and injury suffered; (4) moral blame attached to defendant's conduct; (5) policy of preventing future harm; (6) extent of burden to defendant and the consequences to the community of imposing a duty to exercise care with resulting liability for breach; and (7) availability, cost, and prevalence of insurance for the risk involved.

W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 53, at 359 n. 24 (5th ed.1984) (citations omitted). A generally accepted rule is passengers owe no duty to injured parties. Brian Shipp, Note, Price v. Halstead: Liability of a Guest Passenger for the Negligence of his Drunk Driver, 42 Okla. L.Rev. 159, 162 ("passengers are not liable for the negligence of the driver in the absence of a special relationship between passenger and driver").

C

¶14. North Dakota has established a statutory duty for persons providing alcohol to a person under twenty-one years of age, an incompetent, or an obviously intoxicated person. North Dakota's dram shop law provides "for fault resulting from intoxication":

Every spouse, child, parent, guardian, employer, or other person who is injured by any obviously intoxicated person has a claim for relief for fault under section 32-03.2-02 against any person who knowingly disposes, sells, barters, or gives away alcoholic beverages to a person under twenty-one years of age, an incompetent, or an obviously intoxicated person, and if death ensues, the survivors of the decedent are entitled to damages defined in section 32-21-02.

N.D.C.C. § 5-01-06.1.

¶15. Dram shop laws are sui generis. Stewart v. Ryan, 520 N.W.2d 39, 45 (N.D.1994); Day v. General Motors Corp., 345 N.W.2d 349, 355 (N.D.1984). The legislature's intent was to create an entirely new form of liability for wrongful sale of alcohol. "The liability created by the Civil Damage Act has no relation to any common law liability, or to any theory of tort. It was the intention of the legislature to create liability in a class of cases where there was no liability under the common law." Iszler v. Jorda, 80 N.W.2d 665, 667 (N.D.1957) (...