Decision Date23 July 2001
Docket NumberNo. 20000279.,20000279.
Citation2001 ND 139,632 N.W.2d 407
PartiesClifton RODENBURG and Donna Rodenburg, Plaintiffs and Appellants, v. FARGO-MOORHEAD YOUNG MEN'S CHRISTIAN ASSOCIATION, and Patrick Parker, Defendants and Appellees, and William J. Hart, Mark Lathrop and Amelia Oponski, Defendants.
CourtNorth Dakota Supreme Court

Clifton Rodenburg (argued), pro se, Fargo, ND, for plaintiffs and appellants.

Calvin N. Rolfson (appeared), Rolfson Schulz Lervick & Geiermann Law Offices, Bismarck, ND, for plaintiffs and appellants.

Duane H. Ilvedson (argued) and Joel M. Fremstad (on brief), Nilles, Hansen & Davies, Ltd., Fargo, ND, for defendant and appellee Fargo-Moorhead Young Men's Christian Association.

Aaron J. Dorrheim (argued) and Thomas R. Olson (on brief), Jeffries, Olson & Flom, PA, Moorhead, MN, for defendant and appellee Patrick Parker.

KAPSNER, Justice.

[¶ 1] Clifton and Donna Rodenburg appealed a district court judgment, an order denying their motion for a new trial, and "every other ruling of the court adverse to the plaintiffs." We reverse the judgment dismissing Rodenburgs' action against Patrick Parker. We affirm in all other respects.

[¶ 2] While in the weight room of the Fargo-Moorhead Young Men's Christian Association ("YMCA") on March 26, 1996, Clifton Rodenburg was injured when William J. Hart shot him with a .357 magnum revolver. Rodenburgs sued Hart for damages. In an amended complaint, Rodenburgs added the YMCA as a defendant, alleging in part: "The YMCA negligently failed to take reasonable measures to prevent Hart from gaining access to the YMCA and negligently failed to take reasonable precautions to provide for the safety of the YMCA's patrons, including Clifton Rodenburg." In a second amended complaint, Rodenburgs added Mark Lathrop, Amelia Oponski, and Patrick Parker as defendants. Rodenburgs alleged:

32. Lathrop and Oponski, in breach of this duty, negligently and carelessly:

a. obtained Hart's release from jail by posting bail for him,

b. allowed Hart to possess the .357 magnum revolver that was in their possession,

c. transported Hart to Fargo, and

d. failed to warn the authorities and/or Clifton Rodenburg of Hart's risk of assault upon Clifton Rodenburg and others.

33. By breach of their duty, Lathrop and Oponski aided, enabled, and facilitated Hart's assault and battery of Clifton Rodenburg.

Rodenburgs alleged Parker owned the revolver and ammunition Hart used to shoot Clifton Rodenburg and alleged:

41. Parker, in breach of this duty, negligently and carelessly entrusted his .357 magnum revolver and ammunition to be used in an enterprise where Clifton Rodenburg was shot with this firearm and ammunition by Hart.... Parker, by providing the.357 magnum revolver and ammunition, aided, enabled, and facilitated Hart's shooting of Rodenburg.

[¶ 3] Rodenburgs moved for partial summary judgment striking part of the YMCA's answer, "on the grounds that, under North Dakota comparative fault law, liability may not be apportioned between an intentional tortfeasor ... and a negligent tortfeasor ... whose liability is predicated upon breaching a duty to protect, when both are proximate causes of an indivisible injury." The court denied Rodenburgs' motion and their subsequent motion for reconsideration.

[¶ 4] Rodenburgs moved to strike the part of Parker's answer alleging the trial court lacked personal jurisdiction over him. The trial court denied Rodenburgs' motion to strike, and Parker moved to dismiss the action against him because the court lacked personal jurisdiction. The trial court found "the contacts of defendant Patrick Parker with the State of North Dakota are so minimal such that the exercise of jurisdiction over him in the State of North Dakota offends traditional notions of fair play and substantial justice" and granted Parker's motion to dismiss on May 19, 1999. On June 16, 1999, this Court denied Rodenburgs' application for a supervisory writ.1 Upon Rodenburgs' motion, the trial court ordered their action against Lathrop and Oponski dismissed without prejudice.

[¶ 5] After a trial, the jury returned a special verdict finding the YMCA was not negligent, attributing to Hart 100% of the fault proximately causing damages to Rodenburgs, and fixing the amount of damages to Rodenburgs. Judgment against Hart and dismissing Rodenburgs' complaint against the YMCA was entered on June 1, 2000. The court denied Rodenburgs' motion for a new trial on the grounds of erroneous exclusion of evidence, erroneous jury instructions, and on the ground that the jury's verdict was contrary to the weight of the evidence. Rodenburgs appealed.


[¶ 6] Rodenburgs contend: "The Jury's Verdict That the YMCA Was Not Negligent Is Clearly Contrary to the Evidence, and the Trial Court's Denial of the New Trial Motion Was an Abuse of Discretion." Rodenburgs contend the evidence shows "the YMCA failed to take the most basic steps to protect its members in the face of a clear and substantial risk of harm."

[¶ 7] We uphold special verdicts whenever possible and set aside a special verdict only if it is perverse and clearly contrary to the evidence. Phillips v. Dickinson Mgmt., Inc., 1998 ND 123, ¶ 6, 580 N.W.2d 148. In reviewing a jury's findings, "we view the evidence in the light most favorable to the verdict and determine only if substantial evidence supports it." Ingalls v. Paul Revere Life Ins. Group, 1997 ND 43, ¶ 24, 561 N.W.2d 273. A motion for a new trial under N.D.R.Civ.P. 59(b)(6) is addressed to the sound discretion of the trial court. Braunberger v. Interstate Eng'g, Inc., 2000 ND 45, ¶ 7, 607 N.W.2d 904. "A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner." Id. In reviewing a trial court's decision on a motion for a new trial based on insufficiency of the evidence, we examine the evidence in the light most favorable to the verdict to determine if there is sufficient evidence to justify the verdict. Kreidt v. Burlington Northern R.R., 2000 ND 150, ¶ 19, 615 N.W.2d 153.

[¶ 8] Rodenburgs rely on several evidentiary items supporting their argument the YMCA knew of a risk of harm Hart posed to Clifton Rodenburg and failed to take reasonable steps to protect him from Hart. There was evidence, however, supporting the YMCA's argument it acted reasonably under the circumstances in light of its knowledge about Hart. The trial court observed in considering Rodenburgs' motion for new trial, "[t]he evidence in this case was extremely close on the question of negligence."

[¶ 9] Paul Finstad, the executive director of the YMCA, testified: (1) in a telephone conversation on February 22, 1996, Rodenburg told him Hart "had been exhibiting some bizarre behavior, that at times he could be very friendly, and sometimes he could be very difficult. I believe he also told me that he had thrown a weight at him," and that Ed Renner and Bill Engelhardt "also had concerns about" Hart, and Rodenburg encouraged Finstad to consider taking away Hart's membership; (2) he did not recall Rodenburg telling him Hart threatened to kill Rodenburg; (3) in that conversation, Finstad told Rodenburg, "before I make a decision on what we needed to do, I wanted to be able to try and talk to both parties in regard to what had happened;" (4) he could suspend or revoke a member's privileges, which could be flagged on the computer; and (5) on March 26, 1996, there were no flags or restrictions on Hart's membership. Finstad testified if he "would kick somebody out of the Y every time a member ... would come in and tell me they should be kicked out, boy, that's—I could be doing that full time" and that, when he learns a member has threatened or assaulted another member, he will usually try "to first visit with both parties and hear both sides of the story." Finstad testified: (1) he talked to Renner and Engelhardt after he talked to Rodenburg on February 22; (2) he called the Sioux Falls Y, where Hart had been a member, and learned they had no problems with Hart; (3) on February 22 he talked to Maurice Brandt of the Fargo police department, who said "we should be careful in dealing with a person like this, and that, you know, we pursue it with a common sense approach;" and (4) he tried to call Hart, but his phone was disconnected. Finstad further testified: (1) on February 22, the sheriff's department said Hart was going to be arrested; (2) he knew Hart had been arrested February 23 and extradited to Iowa on February 28; (3) he thought the situation was taken care of when Hart was arrested and thinks that was Rodenburg's understanding, too; (4) no member who worked out when Hart was there ever complained to him about Hart before Rodenburg did; (5) he did not recall Rodenburg telling him Hart had aggravated assault charges against him; (6) he did not know Rodenburg had sued Hart the day Hart was extradited; (7) he did not feel Hart was a serious threat to Rodenburg; and (8) after the shooting, he talked to Rodenburg in the hospital and "Rodenburg indicated to me that he knew [Hart] was out of prison, but that he certainly didn't expect him to do something like this."

[¶ 10] Maurice Brandt, a Fargo police officer since 1973, testified that, before the shooting, he had a telephone conference with Finstad about what to do about a man intimidating others in the weight room. He testified about what to do in such a case:

Certainly, when someone calls with a problem like Mr. Finstad indicated he had, we usually ask them if—first of all, does the person who's supposedly causing the problems ... aware that there is a problem. And the only way to make sure that's done is to speak to them and tell them that there has been a complaint about them, tell them what the complaint is. Then you need to let them know that they can't continue along that line and there will be consequences if they do. That's a pretty standard way to handle that.

[¶ 11] From our review of...

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