Moore v. Fargo Pub. Sch. Dist. No. 1

• Decision Date: 10 April 2012
• Docket Number: No. 20110260.,20110260.
• Citation: 2012 ND 79,280 Ed. Law Rep. 1058,815 N.W.2d 273
• Parties: M.M. and Thomas Moore, Plaintiffs Thomas Moore, Appellant, v. FARGO PUBLIC SCHOOL DISTRICT NO. 1 and Eugenia Hart, Defendants Fargo Public School District No. 1, Appellee.
• Court: North Dakota Supreme Court

815 N.W.2d 273

280 Ed. Law Rep. 1058

2012 ND 79

M.M. and Thomas Moore, PlaintiffsThomas Moore, Appellant,

v. FARGO PUBLIC SCHOOL DISTRICT NO. 1 and Eugenia Hart, DefendantsFargo Public School District No. 1, Appellee.

No. 20110260.

Supreme Court of North Dakota.

April 10, 2012.

Michael W. Unger (argued), Minneapolis, MN, and Craig E. Johnson (on brief), Fargo, N.D., for appellant.

Ronald H. McLean (argued) and Kasey D. McNary (on brief), Fargo, N.D., for appellee.

Jeffrey S. Weikum, Bismarck, N.D., for amicus curiae North Dakota Association for Justice.

SANDSTROM, Justice.

[¶ 1] Thomas Moore appeals from a judgment dismissing his claim for medical expenses incurred by his son, M.M., in their personal injury action against Fargo Public School District No. 1 and Eugenia Hart. Because Moore's claim for past economic damages derives from M.M.'s injuries, and M.M. was denied recovery under our modified comparative fault laws, we conclude the district court correctly dismissed Moore's claim for medical expenses. We affirm the judgment.

I

[¶ 2] In May 2004, M.M., a 15–year–old student at Discovery Middle School in Fargo, was seriously injured while practicing a bike stunt in the school auditorium in preparation for '60s Day, part of the curriculum for Hart's history class. Moore and M.M. brought a personal injury action against the District and Hart. The district court dismissed the action against the District as a matter of law, and a jury returned a verdict in favor of Hart. In M.M. v. Fargo Pub. Sch. Dist. No. 1, 2010 ND 102, ¶¶ 1, 19, 22, 28, 783 N.W.2d 806, we concluded the court erred in ruling the recreational use immunity statutes barred the action against the District and erred in excluding certain evidence from the jury in the action against Hart, and we reversed and remanded for a new trial.

[¶ 3] On remand, Hart settled, and the case was tried to the jury only against the District. At the close of the evidence, the district court rejected the District's request to include a line on the special verdict form for apportioning fault to Moore, concluding there was no evidence from which a jury could find Moore was at fault. The jury returned a verdict allocating 30 percent fault to “Eugenia Hart and any other employee of the Fargo Public School District” and 70 percent fault to M.M. The jury awarded Moore $285,000 for past economic damages based on M.M.'s medical expenses incurred while he was a minor. Because M.M.'s fault was greater than the fault of the District, the court entered judgment dismissing the action and awarding costs in favor of the District. The court also denied Moore's request to have judgment entered in his favor for $85,500, representing 30 percent of the $285,000 awarded by the jury for M.M.'s past medical expenses. Following the majority rule, the court concluded “a child's negligence should be considered in determining the extent of a parent's recovery against a third party for medical expenses paid.”

[¶ 4] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27–05–06. Moore's appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28–27–01.

II

[¶ 5] Moore argues the district court erred in rejecting his $85,500 claim for M.M.'s past medical expenses, because North Dakota law allows a parent without fault to recover medical expenses for a child's injury in proportion to the defendant's fault. This is a question of first impression in North Dakota.

[¶ 6] North Dakota's modified comparative fault statute provides:

Contributory fault does not bar recovery in an action by any person to recover damages for death or injury to person or property unless the fault was as great as the combined fault of all other persons who contribute to the injury, but any damages allowed must be diminished in proportion to the amount of contributing fault attributable to the person recovering. The court may, and when requested by any party, shall direct the jury to find separate special verdicts determining the amount of damages and the percentage of fault attributable to each person, whether or not a party, who contributed to the injury. The court shall then reduce the amount of such damages in proportion to the amount of fault attributable to the person recovering. When two or more parties are found to have contributed to the injury, the liability of each party is several only, and is not joint, and each party is liable only for the amount of damages attributable to the percentage of fault of that party, except that any persons who act in concert in committing a tortious act or aid or encourage the act, or ratifies or adopts the act for their benefit, are jointly liable for all damages attributable to their combined percentage of fault. Under this section, fault includes negligence, malpractice, absolute liability, dram shop liability, failure to warn, reckless or willful conduct, assumption of risk, misuse of product, failure to avoid injury, and product liability, including product liability involving negligence or strict liability or breach of warranty for product defect.

N.D.C.C. § 32–03.2–02.

[¶ 7] Enacted in 1987, the modified comparative fault provisions of N.D.C.C. ch. 32–03.2 “significantly revised tort liability in North Dakota and shifted the focus from traditional tort doctrines to the singular inclusive concept of ‘fault.’ ” Grager v. Schudar, 2009 ND 140, ¶ 16, 770 N.W.2d 692. Under the modified comparative fault law, negligence is included in the concept of fault, and the fault of two or more parties is compared so that each party is liable only for the amount of damages attributable to the percentage of fault by that party. Saltsman v. Sharp, 2011 ND 172, ¶ 9, 803 N.W.2d 553. By enacting N.D.C.C. § 32–03.2–02, the Legislature “clearly intended to replace joint and several liability with several allocation of damages among those who commit torts in proportion to the fault of those who contributed to an injury.” Rodenburg v. Fargo–Moorhead YMCA, 2001 ND 139, ¶ 25, 632 N.W.2d 407;see also Schneider v. Schaaf, 1999 ND 235, ¶ 22, 603 N.W.2d 869. Although the modified comparative fault law significantly revised tort law in North Dakota, some former contributory negligence concepts remain viable. See Harfield v. Tate, 1999 ND 166, ¶¶ 9–12, 598 N.W.2d 840.

[¶ 8] In construing the modified comparative negligence statutes, “our primary duty is to ascertain the Legislature's intent, which initially must be sought from the statutory language.” Haff v. Hettich, 1999 ND 94, ¶ 15, 593 N.W.2d 383. “Statutory provisions must be considered as a whole with each provision harmonized, if possible.” Stewart v. Ryan, 520 N.W.2d 39, 45 (N.D.1994); see alsoN.D.C.C. § 1–02–07. “Words used in a statute are to be understood in their ordinary sense, unless a contrary intention plainly appears.” Leno v. K & L Homes, Inc., 2011 ND 171, ¶ 12, 803 N.W.2d 543;see alsoN.D.C.C. § 1–02–02. When a statute is ambiguous or of doubtful meaning or if adherence to the strict letter of the statute would lead to an absurd or ludicrous result, we may resort to extrinsic aids to interpret the statute. Leno, at ¶ 13. “In determining the legislative intent of an ambiguous statute, a court may consider the object sought to be obtained, the circumstances under which the statute was enacted, the legislative history, common law or former statutory provisions, or consequences of a particular construction.” Id.; see alsoN.D.C.C. § 1–02–39. The interpretation of a statute is a question of law fully reviewable on appeal. Leno, at ¶ 12.

[¶ 9] Section 32–03.2–02, N.D.C.C., does not create an independent basis of tort liability, but deals only with the allocation of damages among those already at fault. See Ward v. Bullis, 2008 ND 80, ¶ 30, 748 N.W.2d 397;Schneider, 1999 ND 235, ¶ 23, 603 N.W.2d 869;Hurt v. Freeland, 1999 ND 12, ¶ 21, 589 N.W.2d 551;see also Fetch v. Quam, 530 N.W.2d 337, 339 (N.D.1995) (“Today, comparative negligence affects the amount of recovery more than liability.”). The modified comparative fault laws are silent regarding whether a parent without fault may recover medical expenses for a child's injuries in proportion to the defendant's fault when the child's fault exceeds the defendant's fault. Our review of the legislative history of 1987 N.D. Sess. Laws ch. 404 sheds no light on the question. Considering the circumstances under which the statutes were enacted, however, we note the statutes were part of “tort reform” legislation believed necessary to lower insurance rates and improve the business climate within the state. See, e.g., Hearing on H.B. 1571 Before the House Judiciary Comm., 50th N.D. Legis. Sess. (Feb. 3, 1987) (testimony of Pete Haug, representing the Greater North Dakota Association); see also Leno, 2011 ND 171, ¶ 14, 803 N.W.2d 543.

[¶ 10] Generally, it is well-established that a parent's claims “for medical expenses paid on behalf of an injured ... child are derivative, and the negligence of the injured family member is attributed to the person with the derivative claim. This result follows the view that the comparative-negligence statute was not intended to alter the judge-made law concerning derivative causes of action.” 57B Am.Jur.2d Negligence § 1030, at 294 (2004) (footnotes omitted); see also67A C.J.S. Parent and Child § 330, at 414 (2002) (footnote omitted) (“[A] parent's right of action, although distinct from the child's right of action, is based upon and arises out of the negligence which caused injury to the child, and a parent therefore usually cannot recover unless the child also has a good cause of action.”); see alsoRestatement (Second) of Torts § 494 (1965) (“The plaintiff is barred from recovery for an invasion of his legally protected interest in the health or life of a third person which results from the harm or death of such third person, if the negligence of such third person...