McCroskey v. Cass County

• Decision Date: 12 March 1981
• Docket Number: No. 9900,9900
• Citation: 303 N.W.2d 330
• Parties: Alve W. McCROSKEY, Plaintiff and Appellant, v. CASS COUNTY; Donald J. Rudnick, Cass County Sheriff; Budd Warren, CharlesHoggarth, individually and as employees of Cass County, North Dakota, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 330

303 N.W.2d 330

Alve W. McCROSKEY, Plaintiff and Appellant, v. CASS COUNTY; Donald J. Rudnick, Cass County Sheriff; Budd Warren, CharlesHoggarth, individually and as employees of Cass County, North Dakota Defendants and Appellees.

Civ. No. 9900.

Supreme Court of North Dakota.

March 12, 1981.

As Amended March 16, 1981.

Frederick D. Kraemer and Associates, Fargo, for plaintiff and appellant; argued by Frederick D. Kraemer, Fargo.

Mervin Nordeng, Asst. State's Atty., Fargo, for defendant and appellee, Cass County; on brief only.

DeMars & Turman, Ltd., Fargo, for defendant and appellee Budd Warren; argued by Joseph A. Turman, Fargo.

SAND, Justice.

This is an appeal by the plaintiff, Alve W. McCroskey (McCroskey), from a district court judgment dismissing with prejudice his complaint against the defendants, Cass County and Budd Warren ¹ for failure to state a cause of action.

McCroskey's complaint in substance alleges as follows: That on 5 Dec 1978 two Fargo police officers, Gerhard Fettes and Donn Weaver ² brought him to the Cass County jail for detoxification; that defendants Budd Warren and Charles Hoggarth were jailers on duty and took possession of McCroskey at the Cass County jail; that North Dakota law and the rules and regulations of the Cass County jail provide that a person may be detained for detoxification if apparently intoxicated; that jailers on duty at the Cass County jail have an absolute discretion in determining the length of time an individual will remain in detoxification; that McCroskey was not intoxicated and defendants Budd Warren and Charles Hoggarth failed to make an independent determination to ascertain if he was intoxicated and would constitute a danger to himself or others; and, as a result, that McCroskey suffered great physical and mental anguish, humiliation and shame, and was deprived of his liberty and damaged in his name and reputation.

The defendants, Cass County and Budd Warren, in their respective answers asserted that McCroskey's complaint failed to state a claim upon which relief could be granted, and brought a motion for judgment of dismissal as permitted by Rule 12(c) of the North Dakota Rules of Civil Procedure. The district court entered an order from the bench dismissing with prejudice McCroskey's complaint and judgment was entered.

The district court held that the term "injury" as defined in § 32-12.1-02(4), North Dakota Century Code, meant a personal injury, physical in nature, but did not include humiliation, shame, or mental anguish, and therefore the injuries alleged in McCroskey's complaint did not come within the meaning of the term "injury" defined by statute.

Furthermore, the district court found that the actions of Cass County and its employees were discretionary functions within the purview of § 32-12.1-03(3), NDCC, and therefore, the county and its employees were immune from liability.

McCroskey appealed from the district court judgment dismissing his complaint and raises the following issues: (1) Do the injuries alleged in his complaint fall within the meaning of "injuries" as defined in § 32-12.1-02(4), NDCC, and (2) were the acts of the county and its employees alleged in his complaint discretionary within the meaning of § 32-12.1-03(3), NDCC.

The defendants made a motion for judgment on the pleadings as permitted under Rule 12(c), NDRCivP. ³

Cass County submitted an "affidavit" along with its motion for judgment on the pleadings. However, this "affidavit" is in reality a brief in support of the County's motion for judgment on the pleadings. Furthermore, it is apparent from the parties' briefs that they treated the motion as one for judgment on the pleadings, and not as a motion for summary judgment. Consequently, our review is within the purview of a Rule 12(c), NDRCivP, motion.

In Johnson & Maxwell, Ltd. v. Lind, 288 N.W.2d 763, 765 (N.D.1980), we made the following observations regarding a motion under Rule 12(b)(5), NDRCivP, which pursuant to Rule 12(h)(2), NDRCivP, is pertinent to a motion under Rule 12(c), NDRCivP:

"... we recognize that a complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. (Citation omitted.) The court's inquiry is directed to whether or not the allegations constitute a statement of a claim under Rule 8(a), N.D.R.Civ.P., which sets forth the requirements for pleading a claim and calls for 'a short and plain statement of the claim showing that the pleader is entitled to relief.'

"The complaint is to be construed in the light most favorable to the plaintiff (citation omitted), and the allegations of the complaint are taken as true. (Citation omitted.) The motion for dismissal of the complaint should be granted only if it is disclosed with certainty the impossibility of proving a claim upon which relief can be granted."

With this standard in mind, we will consider the issues presented by McCroskey on appeal.

McCroskey contends that the defendants are liable under § 32-12.1-03(3), NDCC, because their activities are not discretionary functions. Section 32-12.1-03(3), NDCC, provides as follows:

"3. A political subdivision shall not be liable for any claim based upon an act or omission of an employee of a political subdivision, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance, exercising due care, or the failure to exercise or perform a discretionary function or duty on the part of a political subdivision or its employees, whether or not the discretion involved be abused. Specifically, a political subdivision or an employee thereof shall not be liable for any claim which results from:

a. The decision to undertake or the refusal to undertake any legislative or quasi-legislative act, including the decision to adopt or the refusal to adopt any statute, charter, ordinance, order, regulation, resolution, or resolve.

b. The decision to undertake or the refusal to undertake any judicial or quasi-judicial act, including the decision to grant, to grant with conditions, to refuse to grant, or to revoke any license, permit, order, or other administrative approval or denial.

c. The decision to perform or the refusal to exercise or perform a discretionary function or duty, whether or not such discretion be abused and whether or not the statute, charter, ordinance, order, resolution, regulation, or resolve under which the discretionary function or duty is performed is valid or invalid.

Nothing contained in this subsection shall be construed to limit the liability of a political subdivision or an employee thereof for a personal injury arising out of the execution of any legislative or quasi-legislative act, judicial or quasi-judicial act, or discretionary function."

In Kitto v. Minot Park District, 224 N.W.2d 795, 804-805 (N.D.1974), this Court abolished governmental immunity ⁴ in North Dakota, but imposed the following limitation on governmental liability:

"In certain other jurisdictions abolishing the doctrine, an immunity has been retained for certain acts which go to the essence of governing. (Citations omitted.) We do not contemplate that the essential acts of governmental decision-making be the subject of judicial second-guessing or harassment by the actual or potential threat of litigation. We hold that no tort action will lie against governmental units for those acts which may be termed discretionary in character. Included within this category are acts traditionally deemed legislative or quasi-legislative, or judicial or quasi-judicial, in nature. The exercise of discretion carries with it the right to be wrong. It is for torts committed in the execution of the activity decided upon that liability attaches, not for the decision itself. In this regard there is substantial experience in dealing with a discretionary function exception under the Federal Tort Claims Act, which may provide a useful source of reference. In adopting this exception we do not embrace the 'governmental' and 'proprietary' functions distinction which Justice Frankfurter termed the 'quagmire that has long plagued the law of municipal corporations.' (Citation omitted.) We seek a more narrow and a more rational ground for limiting liability." (Emphasis ours.)

In Sande v. City of Grand Forks, 269 N.W.2d 93 (N.D.1978), we dealt with the discretionary function exception to governmental liability developed in Kitto and codified in Ch. 295, 1975 S.L., and Ch. 303, 1977 S.L. (see supra footnote 4). In that case the Sandes had sought damages due to the alleged failure of the Urban Renewal Agency of Grand Forks (Agency) to act in accordance with federal regulations in providing relocation assistance. The Sandes argued that because certain duties of the agency were specified as "mandatory" in the applicable federal regulations which governed its operations, they could not be discretionary functions. We declined to accept the distinction between mandatory and advisory regulations as helpful in determining whether or not the functions are discretionary. We noted that although the regulations may have imposed mandatory duties, a substantial amount of discretion was permitted as to how those duties were exercised. This was the critical determination in the resolution of that case in which we stated:

"In view of the very broad language of the regulations, and the broad area of discretion as to methods of compliance allowed to each agency, we hold that the Agency, in regard to the methods it used to pass on information as to its authority and methods, was engaged in a discretionary function, a quasi-governmental activity, and is therefore immune from suit on behalf of one who claims to have been given erroneous information to his detriment." Sande v. City of Grand Forks, 269 N.W.2d at 97-98.

We recognized, in Sande, that a...