Leet v. City of Minot

Citation721 N.W.2d 398,2006 ND 191
Decision Date13 September 2006
Docket NumberNo. 20060011.,20060011.
PartiesCharles LEET and Janet Leet, Plaintiffs and Appellants, v. CITY OF MINOT, Defendant and Appellee.
CourtUnited States State Supreme Court of North Dakota

Kim E. Brust (argued) and Stephannie N. Stiel (appeared), Conmy Feste, Ltd., Fargo, N.D., for plaintiffs and appellants.

William E. Bergman, Olson & Burns P.C., Minot, N.D. for defendant and appellee.

VANDE WALLE, Chief Justice.

[¶ 1] Charles Leet and Janet Leet ("Leets") appealed from a summary judgment dismissing their complaint against the City of Minot and awarding costs and disbursements to Minot. Because we conclude the recreational use immunity statutes do not bar the Leets' claims, we reverse and remand for further proceedings.


[¶ 2] In May 2002, while Charles Leet was working at the Minot Auditorium, he was injured when a curtain divider system fell and a pipe struck him on the head. The auditorium is owned, operated, and maintained by Minot, and city employees had set up the curtain divider system. Charles Leet was at the auditorium to set up a booth for his employer, Experience Works, a vendor participating in the Salute to Seniors event, which was taking place the following day. The Minot Senior Coalition holds its "Salute to Seniors Celebration" annually, offering educational information as well as entertainment and information from area businesses and organizations that have booths at the event. Experience Works finds training and employment for people aged fifty-five and older by putting them in community service positions, and its booth at the event was to promote its services. Charles Leet was Experience Works' field operations coordinator, and he received workers compensation benefits for his injuries.

[¶ 3] In August 2003, the Leets sued Minot, alleging it was negligent in causing Charles Leet's injuries. Minot moved for summary judgment, arguing it was entitled to judgment as a matter of law under the recreational use immunity statutes in N.D.C.C. ch. 53-08. The Leets opposed Minot's motion, arguing the recreational use immunity statutes were not applicable to their action and, further, the recreational immunity defense had not been properly pled. The district court granted Minot summary judgment, ruling Minot was immune from suit under N.D.C.C. ch. 53-08.


[¶ 4] The Leets argue Minot was precluded from asserting the recreational immunity defense for the first time in its motion for summary judgment. Minot responds the district court did not abuse its discretion in considering the recreational use immunity defense because the Leets were not prejudiced by the assertion of the defense nor was there an allegation of prejudice to the district court.

[¶ 5] Recreational use immunity is generally recognized to be an affirmative defense. See, e.g., Dan Nelson Constr., Inc. v. Nodland & Dickson, 2000 ND 61, ¶ 33, 608 N.W.2d 267 (2000) (applying Wyoming law); DiMella v. Gray Lines of Boston, Inc., 836 F.2d 718, 720 (1st Cir.1988); Hollonbeck v. Torrey, 171 F.R.D. 244, 245 (E.D.Ark.1997). Generally, the failure to plead an affirmative defense results in a waiver of the defense. Hansen v. First American Bank & Trust, 452 N.W.2d 770, 771 (N.D.1990). Rule 8(c), N.D.R.Civ.P., governing affirmative defenses, provides in relevant part:

In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.

[¶ 6] We have, however, held that N.D.R.Civ.P. 8(c) must be read in conjunction with N.D.R.Civ.P. 15(a), governing amendment of pleadings. Hansen, 452 N.W.2d at 771-72. Rule 15(a), N.D.R.Civ. P., provides, in part:

A party's pleading may be amended once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party's pleading may be amended only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.

[¶ 7] Under N.D.R.Civ.P. 15(a), while leave to amend the pleadings is to be freely given when justice so requires, leave is not automatically granted. See Bernabucci v. Huber, 2006 ND 71, ¶ 28, 712 N.W.2d 323; Hansen, 452 N.W.2d at 772. The decision on a motion to amend a pleading is within the sound discretion of the district court and will not be overruled on appeal absent an abuse of discretion. Bernabucci, ¶ 28; First Interstate Bank v. Rebarchek, 511 N.W.2d 235, 243 (N.D. 1994). A district court abuses its discretion when it acts arbitrarily, unconscionably, or unreasonably, when its decision is not the product of a rational mental process leading to a reasoned determination, or when it misinterprets or misapplies the law. North Dakota Human Rights Coalition v. Bertsch, 2005 ND 98, ¶ 11, 697 N.W.2d 1.

[¶ 8] Here, the district court said the affirmative defense could be raised for the first time in Minot's motion for summary judgment, in the absence of prejudice to the opposing party. The district court effectively granted a motion to amend by permitting the defense to be raised. Other courts have allowed assertion of affirmative defenses for the first time in response to a motion for summary judgment where there is no prejudice or surprise to the nonmoving party. See Financial Timing Publ'ns, Inc. v. Compugraphic Corp., 893 F.2d 936, 944 n. 9 (8th Cir.1990); Allied Chem. Corp. v. Mackay, 695 F.2d 854, 855 (5th Cir.1983). The district court found the Leets had not alleged any prejudice, and no prejudice was apparent from the record.

[¶ 9] While Minot's summary judgment motion was timely under the district court's scheduling order, the Leets also argue Minot should be prevented from raising the recreational use immunity defense for the first time less than two months before trial. The Leets assert all depositions in the case had been conducted and, therefore, they were precluded from asking questions in those depositions which could have addressed whether the statutes properly applied. The Leets claim Minot's delay in bringing the motion for summary judgment disadvantaged and prejudiced them. This Court, however, has previously held that mere delay does not necessarily result in prejudice to the litigant. See Hansen, 452 N.W.2d at 772-73 (no abuse of discretion where district court allowed defendant to amend its answer to raise various affirmative defenses on the day of trial where case had been pending for 13 months, both parties took depositions, participated in pre-trial motions, and were required to prepare for trial); Bender v. Time Ins. Co., 286 N.W.2d 489, 491 (N.D.1979) (no abuse of discretion where district court allowed defendant to amend its answer to assert a statute of limitations defense more than 19 months after the complaint was originally filed).

[¶ 10] In addition to failing to make an affirmative showing of prejudice, the Leets did not request a continuance in their response to Minot's summary judgment motion under Rule 56(f), N.D.R.Civ.P., which permits a court to order a continuance for further discovery upon affidavit from the opposing party. Nonetheless, the trial in this case, which had initially been scheduled for March 2005, was eventually continued for eight months until November 2005. We conclude the district court did not act in an arbitrary, unreasonable, or unconscionable manner by permitting Minot to raise the affirmative defense of recreational use immunity for the first time in its motion for summary judgment.


[¶ 11] The Leets argue the district court erred in concluding Charles Leet was using the Minot Auditorium for a recreational purpose and in granting Minot summary judgment based upon recreational use immunity. Minot counters that Charles Leet's presence at the auditorium the day before the Salute to Seniors event was for a recreational purpose because he was preparing for an event that was recreational and for the dissemination of information to seniors.

[¶ 12] Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. State ex rel. N.D. Housing Fin. Agency v. Center Mut. Ins. Co., 2006 ND 175, ¶ 8, 720 N.W.2d 425. Whether the district court properly granted summary judgment is a question of law that we review de novo on the record. Id. Summary judgment is appropriate if the issues in the case are such that the resolution of any factual disputes will not alter the result. State ex rel. Stenehjem v. Freeeats. com, Inc., 2006 ND 84, ¶ 4, 712 N.W.2d 828. 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 district court properly granted summary judgment as a matter of law. See Ertelt v. EMCASCO Ins. Co., 486 N.W.2d 233, 234 (N.D. 1992). The interpretation and application of a statute is a question of law, which is fully reviewable on appeal. State ex rel. Stenehjem, ¶ 5.

[¶ 13] The interpretation of N.D.C.C. ch. 53-08 is a question of law, which is fully reviewable on appeal....

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