Kautzman v. McDonald

• Citation: 2001 ND 20,621 N.W.2d 871
• Decision Date: 02 February 2001
• Docket Number: No. 20000156.,20000156.
• Parties: Paul KAUTZMAN and Susan Kautzman, Plaintiffs and Appellants, v. Cass County Deputy Sheriff Gregory McDONALD; Cass County Deputy Sheriff Jeff Olson; Cass County, North Dakota; State of North Dakota; North Dakota Highway Patrolman Mitchell Rumple; North Dakota Highway Patrolman Gary Odegard, Defendants and Appellees. City of Fargo, and Fargo City Policeman Al Dienslake, Defendants.
• Court: North Dakota Supreme Court

621 N.W.2d 871

2001 ND 20

Paul KAUTZMAN and Susan Kautzman, Plaintiffs and Appellants, v. Cass County Deputy Sheriff Gregory McDONALD; Cass County Deputy Sheriff Jeff Olson; Cass County, North Dakota; State of North Dakota; North Dakota Highway Patrolman Mitchell Rumple; North Dakota Highway Patrolman Gary Odegard, Defendants and Appellees.

City of Fargo, and Fargo City Policeman Al Dienslake, Defendants.

No. 20000156.

Supreme Court of North Dakota.

February 2, 2001.

Jonathan T. Garaas, Garaas Law Firm, Fargo, ND, for plaintiffs and appellants.

Angela Elsperger Lord, Vogel, Weir, Hunke & McCormick, Ltd., Fargo, ND, for defendants and appellees Cass County Deputy Sheriff Gregory McDonald; Cass County Deputy Sheriff Jeff Olson; Cass County, North Dakota.

Douglas A. Bahr, Solicitor General, Attorney General's Office, Bismarck, ND, for defendants and appellees State of North Dakota; North Dakota Highway Patrolman Mitchell Rumple; North Dakota Highway Patrolman Gary Odegard.

MARING, Justice.

[¶ 1] Paul and Susan Kautzman appealed from judgments dismissing their tort action, arising from the shooting deaths of their five dogs, against Cass County Deputy Sheriffs Gregory McDonald and Jeff Olson in their official capacities; North Dakota Highway Patrolmen Mitchell Rumple and Gary Odegard in their official capacities; Cass County; and the State. We conclude the trial court properly dismissed the action against the highway patrolmen and the State for failure to timely file a notice of claim with the director of the Office of Management and Budget. We also conclude the trial court did not err in dismissing the Kautzmans' claim for intentional infliction of emotional distress because the defendants' conduct, as a matter of law, could not reasonably be regarded as extreme and outrageous. However, we conclude the trial court erred in dismissing the negligence claim against the deputy sheriffs and Cass County because genuine disputes of material fact exist which preclude summary judgment. We affirm in part, reverse in part, and remand for further proceedings.

I

[¶ 2] The Kautzmans owned four German Shepherds and one Golden Retriever cross-breed which they kept as family pets on their three-acre tract of land in Cass County. During the early morning hours of February 19, 1999, the dogs escaped through a fence from the Kautzmans' yard. Police received several phone calls about the wandering dogs from concerned area residents. The dogs were eventually shot to death by law enforcement officers as the dogs were beginning to roam into Fargo city limits.

[¶ 3] In a complaint dated August 10, 1999, the Kautzmans sued the State, the County, Deputy Sheriffs McDonald and Olson, and Highway Patrolmen Rumple and Odegard for the destruction of their dogs.¹ The Kautzmans alleged the actions of the law enforcement officers violated a Cass County ordinance and state statutes. They sought more than $50,000 in damages for the defendants' "intentional, wrongful, negligent, grossly negligent, and/or wilful acts," and for intentional infliction of emotional distress.

[¶ 4] The State, Rumple and Odegard moved for dismissal of the complaint under N.D.R.Civ.P. 12. The trial court granted the motion, concluding dismissal was required because the Kautzmans failed to present a notice of claim to the director of the Office of Management and Budget within 180 days after the alleged injury was discovered or reasonably should have been discovered. The County, McDonald and Olson later moved for summary judgment of dismissal under N.D.R.Civ.P. 56. The trial court granted the motion, concluding the statutes and ordinance relied on by the Kautzmans did not impose an affirmative duty on the law enforcement officers to not shoot the dogs. The court also dismissed the claim for intentional infliction of emotional distress, concluding the deputies' actions, as a matter of law, did not meet the threshold requirement of extreme and outrageous conduct. The court also awarded the County and the deputies $1,262.10 for their costs and disbursements. The Kautzmans appealed.

II

[¶ 5] The Kautzmans argue the trial court erred in dismissing their lawsuit in its entirety because they have sued the highway patrolmen, as well as the deputy sheriffs, not only in their official capacities, but also in their individual capacities.

[¶ 6] The Kautzmans' complaint does not contain the terminology, "official capacity," "individual capacity" or "personal capacity," which is ordinarily used when a plaintiff seeks to hold a government employee liable in an official or individual capacity. Although we have declined to require capacity stipulations in a complaint, see Burr v. Kulas, 532 N.W.2d 388, 392 (N.D.1995),

capacity stipulations do clarify a plaintiff's intentions. See, e.g., Kristensen v. Strinden, 343 N.W.2d 67, 71-73 (N.D.1983). From our examination of the complaint in this case, we conclude it does not state claims against the law enforcement officers in their individual capacities.

[¶ 7] The complaint names as defendants the State, the County, and the four law enforcement officers, each preceded by their official government title of either "Highway Patrolman" or "Deputy Sheriff." The body of the complaint prefaces allegations against the law enforcement officers with their official titles, and alleges each of them was either a highway patrolman or deputy sheriff "at all times pertinent to this Complaint." The complaint does not allege the law enforcement officers acted outside the scope of their employment at any time.

[¶ 8] One paragraph of the 23 paragraph complaint summarily alleges the defendants committed "intentional, wrongful, negligent, grossly negligent, and/or wilful acts." Acts of gross negligence and willful or wanton misconduct can render a state or county employee personally liable. See N.D.C.C. §§ 32-12.1-04(3) and 32-12.2-01(6). See also Perry Center, Inc. v. Heitkamp, 1998 ND 78, ¶ 34, 576 N.W.2d 505

; Wishnatsky v. Bergquist, 550 N.W.2d 394, 403 (N.D.1996). However, the Kautzmans have also sought damages for intentional infliction of emotional distress, a tort which requires extreme or outrageous conduct that is intentional or reckless. See Hougum v. Valley Memorial Homes, 1998 ND 24, ¶ 26, 574 N.W.2d 812. Because these allegations could relate to the Kautzmans' claim against the defendants in their official capacities for intentional infliction of emotional distress, see Dimond v. State ex rel. Bd. of Higher Educ., 1999 ND 228, ¶ 23, 603 N.W.2d 66 we do not view these allegations as indicative of an intention to sue the law enforcement officers in their individual capacities.

[¶ 9] Construing the complaint as a whole, we conclude it states claims against the law enforcement officers in their official capacities only, and not in their individual capacities.

III

[¶ 10] The Kautzmans argue the trial court erred in concluding their notice of claim against the State and the highway patrolmen was not timely filed with the director of the Office of Management and Budget.

[¶ 11] Before an action can be brought against the State or one of its employees, N.D.C.C. § 32-12.2-04(1) requires the plaintiff to give timely notice of the claim:

A person bringing a claim against the state or a state employee for an injury shall present to the director of the office of management and budget within one hundred eighty days after the alleged injury is discovered or reasonably should have been discovered a written notice stating the time, place, and circumstances of the injury, the names of any state employees known to be involved, and the amount of compensation or other relief demanded.

In Earnest v. Garcia, 1999 ND 196, ¶ 6, 601 N.W.2d 260, we said this "statute requires written notice of a claim; actual notice is insufficient." See also Allied Mut. Ins. Co. v. Director of North Dakota Dept. of Transp., 1999 ND 2, ¶ 10, 589 N.W.2d 201

; Messiha v. State, 1998 ND 149, ¶ 21, 583 N.W.2d 385. Absent the timely filing of a notice of claim against the state or one of its employees, the court lacks subject matter jurisdiction to entertain the lawsuit. Dimond, at ¶ 26; Earnest, at ¶ 7. Contrary to the Kautzmans' argument, nothing in the statute's language or in the legislative history of its 1997 amendment suggests the creation of a dual administrative and legal procedure which makes the 180 day period applicable only in an administrative context. See Cooke v. University of North Dakota, 1999 ND 238, ¶¶ 11-13, 603 N.W.2d 504.

[¶ 12] If the jurisdictional issue is intertwined with the merits of the case, a N.D.R.Civ.P. 12 motion should be addressed using N.D.R.Civ.P. 56 standards. Allied, at ¶ 5 n. 1. The Kautzmans' dogs were shot on February 19, 1999, and they filed a notice of claim with the director of the Office of Management and Budget on September 3, 1999, more than 180 days after the dogs were shot. The Kautzmans argue the 180 days should not begin to run until all elements of the tort have been discovered by the plaintiff. In this case, the Kautzmans argue they did not know they had a cause of action until May 20, 1999, after receiving a copy of an investigation report prepared by the Bureau of Criminal Investigation indicating to the Kautzmans Deputy Sheriff McDonald "falsely reported" the distance from which he shot and killed the first dog.

[¶ 13] We reject the Kautzmans' argument. First, the investigation report names only Deputy Sheriff McDonald and the gun he used to shoot the lead dog. McDonald is not a state employee dismissed by the court for failure to comply with the 180 day notice of claim requirement. Moreover, the record reveals the Kautzmans were aware of the defendants' involvement within days, if not hours, of the shootings. The Kautzmans were either given, or were given access to, the law enforcement officers' reports of the incident. Paul Kautzman began conducting his own investigation of the incident the day after the shootings and...