Olson v. Griggs County, s. 920088

Decision Date05 November 1992
Docket Number920089,Nos. 920088,s. 920088
Citation491 N.W.2d 725
PartiesMary K. OLSON, individually and as Personal Representative of the Estate of Tony D. Jones, Deceased, Plaintiff, Appellant and Cross-Appellee, v. GRIGGS COUNTY, North Dakota, Barnes County, North Dakota, Jerry Fogderud, and Irish Lawrence, Defendants, Appellees and Cross-Appellants. Civ.
CourtNorth Dakota Supreme Court

Paul D. Johnson, of Lee Hagen Law Office, Ltd., Fargo, for plaintiff, appellant, and cross-appellee.

Paul R. Oppegard, of Gunhus, Grinnell, Klinger, Swenson & Guy, Moorhead, Minn., for defendant, appellee, and cross-appellant Griggs County.

Daniel L. Hovland, of Fleck, Mather & Strutz, Bismarck, for defendant, appellee, and cross-appellant Barnes County.

James W. Wold, of Wold Law Office, Cooperstown, for defendants, appellees, and cross-appellants Jerry Fogderud and Irish Lawrence.

VANDE WALLE, Justice.

Mary K. Olson, individually and as personal representative of the Estate of Tony D. Jones, appealed from a district court judgment, entered after a jury verdict, dismissing her wrongful death action against Griggs County, Barnes County, Jerry Fogderud, and Irish Lawrence, and from an order denying her motion for a new trial. Griggs County and Barnes County cross-appealed from an order denying their motions for summary judgment and for a directed verdict. We affirm.

Mary's wrongful death action was based upon the circumstances involving the electrocution of her sixteen year-old son, Tony, at the scene of a one-car accident in Barnes County. At approximately 12:30 a.m. on March 16, 1986, Tony was riding in the back seat of a car driven by Ron Mosholder when Ron lost control of the car and hit a power line pole in the ditch. The car broke the pole off at the ground, leaving two electrical wires suspended above the car's hood. The bottom wire was neutral and was about four feet ten inches above the ground. The top wire carried an electrical charge and was about six feet six inches above the ground.

Tony and another passenger in the back seat, Nancy Odegaard, were not physically injured in the accident and got out of the car. However, Ron and David Kelly, a passenger in the front seat, were seriously injured and could not get out of the car. Two passing motorists, Byron Haugen and Bonnie Gerszewski, took Nancy to Dazey to call for assistance while Tony remained at the scene of the accident.

Griggs County Deputy Sheriff Douglas Kiefert arrived at the accident scene at approximately one a.m. Within ten minutes, the Cooperstown ambulance, Sergeant David Messer of the North Dakota Highway Patrol, Barnes County Deputy Sheriff Terry Gray, the Valley City ambulance, and Officer Roger Haga of the North Dakota Highway Patrol arrived at the scene.

Ron was removed from the car at approximately 1:20 a.m. and transported by ambulance to Valley City. While the Cooperstown ambulance attendants were removing David from the automobile, Officer Haga took Tony down into the ditch to ask Sergeant Messer if Tony could go home. Officer Haga testified that he went back up to the highway to assist the ambulance crew and left Tony in the ditch with Sergeant Messer. Sergeant Messer and Tony were walking out of the ditch at approximately 1:35 a.m. when Tony came in contact with the charged wire and was electrocuted.

It is undisputed that the law enforcement officers and Tony were aware of the sagging electrical wires and that Tony had previously come in contact with the neutral wire at least once. During the evening, Tony was warned on several occasions to stay away from the wires and the accident scene. There was evidence that Tony was "pretty hyper" and that, despite those warnings, he went down to the accident scene several times. It is also undisputed that the electrical company was not called to deactivate the wires until after Tony was electrocuted.

Prior to the car accident, Tony, Ron, David, and Nancy had been at a party near Hannaford. On the afternoon of March 15, Jerry Fogderud and Mark Mosholder, Ron's brother, were drinking at Irish Lawrence's house. Ron, who was eighteen years old, stopped at Lawrence's house and asked Fogderud to purchase some beer for him. Fogderud purchased a twelve-pack of beer for Ron and put the beer in Ron's car. Ron testified that he consumed that twelve-pack plus another twelve beers before the accident occurred. At the time of the accident, Ron had a blood-alcohol content of .26 percent and Tony had a blood-alcohol content of .01 percent.

Mary sued Griggs and Barnes County, alleging that, through their respective deputy sheriffs, they were negligent because they failed to have the power lines deactivated and they failed to adequately supervise Tony at the accident scene. Mary also sued Fogderud and Lawrence, alleging that they were at fault because they furnished alcohol to Ron. The trial court denied the counties' motions for summary judgment and for directed verdict under the immunity provisions of Sections 32-03-40 and 39-08-04.1, N.D.C.C.

In a special verdict, the jury found that Deputy Kiefert and Deputy Gray were not negligent; that Lawrence did not furnish intoxicating liquor to Ron; that Fogderud's furnishing of intoxicating liquor to Ron was not the proximate cause of Tony's death; that Ron's negligence was not the proximate cause of Tony's death; and that Tony's negligence was the proximate cause of his death. The jury also found that the highway patrolmen, Sergeant Messer and Officer Haga, were not negligent. The trial court denied Mary's motion for a new trial, and she appealed from the judgment and from the order denying her motion. Barnes and Griggs County cross-appealed from the orders denying their motions for summary judgment and for a directed verdict under the immunity provisions of Sections 32-03-40 and 39-08-04.1, N.D.C.C.

ADMISSIBILITY OF DEPUTY KIEFERT'S PRIOR STATEMENT

Mary argues that, under Section 31-08-07, N.D.C.C., the trial court erred in not allowing her to use a prior statement by Deputy Kiefert for impeachment. Section 31-08-07, N.D.C.C., provides:

"Copies of statements to be provided--When statement admissible.--Every insurance adjuster, attorney, or any other person who takes the statement of an individual, who may be a party to possible litigation, for use or possible use in the preparation of or trying of a civil suit arising out of a tortious act, and whether said statement be in writing or by any device which records matters stated, other than depositions and court proceedings, shall provide a copy of the statement to the person from whom said statement was taken within thirty days of the making of the statement. No such statement shall be used directly or indirectly in connection with a civil action unless submitted to the person as required herein."

Mary took a statement from Deputy Kiefert on February 5, 1987. She admits that she did not provide Deputy Kiefert with a copy of that statement until May 1988. However, she asserts that she was not required to give him the statement "within thirty days of the making of the statement" because she did not allege that Deputy Kiefert's acts or omissions constituted "reckless or grossly negligent conduct, or willful or wanton misconduct" under Section 32-12.1-04(3), N.D.C.C., 1 and, therefore, he was not a "party to possible litigation."

Under Mary's theory of this case, the counties were negligent because they failed to have the electrical wires deactivated and they failed to adequately supervise Tony at the accident scene. In his prior statement, Deputy Kiefert said that Tony was "keyed up" and "really excited" at the accident scene; that the wires were "real low" and there was a risk working around them; that while they were in the ditch Deputy Gray watched Deputy Kiefert so he "didn't get too close to the wires, you know, and vice versa"; that Tony had told Deputy Kiefert that he had bumped into the bottom wire and nothing happened; and that Tony was in the vicinity of the wrecked automobile "several times." Mary contends that if she had been able to use Deputy Kiefert's prior statement, she would have been able to successfully impeach his trial testimony that Tony was "no more [excited] than anyone involved in a traffic accident would be"; that the sagging electric wires did not interfere with efforts at the accident scene; that Deputy Kiefert did not remember seeing Deputy Gray near the accident scene; that Tony had told him that he had run into the bottom wire "several times"; and that Tony was in the vicinity of the wrecked automobile "only once."

Section 31-08-07, N.D.C.C., applies to "the statement of an individual, who may be a party to possible litigation" and is not directed at only individuals who are actually sued. The statute governs statements by individuals who are potential litigants. Although Mary did not sue Deputy Kiefert in his personal capacity, she could have sued him in his personal capacity by alleging that he was guilty of "reckless or grossly negligent conduct, or willful or wanton misconduct." When Mary took Deputy Kiefert's statement, he was an individual who may have been a party to possible litigation. Furthermore, Mary's argument ignores that, by statute, Section 32-12.1-04(1), N.D.C.C., actions for ordinary negligence of an employee of a county are to be brought against the county. In such instance, we believe that Section 31-08-07, N.D.C.C., requires the statement be provided to the employee, or the county, or the purpose of the statute would be avoided. Because Kiefert's statement was not provided to him within thirty days, the language of Section 31-08-07, N.D.C.C., prohibits it from being used "directly or indirectly in connection with a civil action."

In any event, the issue at trial regarding Mary's use of Deputy Kiefert's statement pertained to whether or not the deputy sheriffs' conduct constituted negligence. Mary extensively examined Deputy Kiefert about the accident scene....

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