Frith v. The Park District of the City of Fargo
2016 ND 213
| N.D. | 2016Background
- On July 7, 2012 Karisa Frith was allegedly injured by soft patching material on a Fargo park pathway while rollerblading.
- The Friths sued the Park District of the City of Fargo and the North Dakota Insurance Reserve Fund for monetary damages for negligence.
- Plaintiffs first filed and served summons and complaint on July 2, 2015, but that service did not comply with N.D.R.Civ.P. 4; proper service occurred October 5, 2015.
- The Park District moved for summary judgment asserting the three-year statute of limitations for political subdivisions (N.D.C.C. ch. 32-12.1) had expired.
- The district court concluded the claims against the Park District were time-barred, dismissed the Insurance Reserve Fund claims as derivative, and entered judgment with prejudice.
- Friths appealed, arguing the court applied the wrong statute of limitations, their claim accrued later (Sept. 2013), and dismissal with prejudice was improper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicable statute of limitations | Six-year personal injury statute applies because a private contractor applied the patching material | Three-year statute under N.D.C.C. ch. 32-12.1 applies to suits against political subdivisions | Three-year statute under ch. 32-12.1 applies to the Park District |
| Accrual date of claim | Claim accrued Sept. 12, 2013 when attorney/expert informed them of reasonable cause to believe Park District was negligent (discovery rule) | Claim accrued on date of injury, July 7, 2012; plaintiffs were aware of injury then | Claim accrued July 7, 2012; discovery rule does not postpone accrual here |
| Effect of defective initial service (commencement) | Filing on July 2, 2015 commenced action; defective service should not bar timely commencement | Service must strictly comply with N.D.R.Civ.P. 4; action did not commence until proper service on Oct. 5, 2015 (after limitations expired) | Initial service was invalid; action did not commence until Oct. 5, 2015, after limitations expired |
| Dismissal with prejudice vs. without prejudice | Because dismissal was partly for lack of personal jurisdiction (initial defective service), case should be dismissed without prejudice | Court obtained jurisdiction after proper service and dismissed on statute-of-limitations grounds; dismissal with prejudice is appropriate | Dismissal with prejudice affirmed because statute-of-limitations dismissal effectively terminates plaintiff's remedy |
Key Cases Cited
- Podrygula v. Bray, 856 N.W.2d 791 (N.D. 2014) (statute of limitations accrual and discovery rule principles)
- Sanderson v. Walsh County, 712 N.W.2d 842 (N.D. 2006) (strict compliance required for service of process; effect of limitations on dismissal)
- Basin Electric Power Coop. v. North Dakota Workers' Comp. Bureau, 541 N.W.2d 685 (N.D. 1996) (Rule 6(b) cannot extend time periods fixed by statute)
- Funke v. Aggregate Construction, Inc., 863 N.W.2d 855 (N.D. 2015) (when accrual becomes a question of law if material facts undisputed)
- Holverson v. Lundberg, 879 N.W.2d 718 (N.D. 2016) (discovery rule requires awareness of injury, not full knowledge of extent)
- Finstad v. Ransom-Sargent Water Users, Inc., 812 N.W.2d 323 (N.D. 2011) (chapter 32-12.1 applies to tort claims against political subdivisions)