978 N.W.2d 67
N.D.2022Background
- In March 2020 a City of Finley water line connected to the curb stop at Elton Lovro’s property broke, flooding and damaging his driveway and basement.
- Lovro sued the City for negligence, gross negligence, and breach of contract (alleging the City failed to properly operate/maintain and safely deliver water).
- The City denied liability and any contract, and asserted governmental immunity under N.D.C.C. ch. 32-12.1 (discretionary function exception).
- Discovery showed a 2001 water-main replacement project that excluded many curb stops/service lines (to save costs); city engineers stated the project did not include Lovro’s service and that such failures are often unpredictable.
- The City paid for some driveway repairs but, through the state insurance fund, refused basement repair payment.
- The district court granted the City’s motion for summary judgment, dismissing Lovro’s claims with prejudice; Lovro appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment was premature because discovery remained (N.D.R.Civ.P. 56(f)) | Lovro sought more discovery (depositions) and argued he lacked facts to oppose summary judgment | City argued the record supported judgment and Lovro failed to file the required 56(f) declaration showing essential facts could not be presented | Court: No abuse of discretion. Lovro failed to submit a 56(f) declaration or show how additional discovery would defeat summary judgment, so denial was proper |
| Whether the City waived discretionary immunity by admitting liability or paying some repairs | Lovro argued payment/admissions amounted to waiver of immunity | City maintained statutory discretionary immunity cannot be waived and denied contractual/other liability | Court: Lovro cited no authority that discretionary-function immunity can be waived; claims barred by immunity |
| Whether discretionary immunity can be asserted against a breach of contract claim | Lovro contended immunity should not shield contract claims | City argued breach claim was abandoned on appeal and, substantively, immunity applies | Court: Lovro failed to adequately brief the breach claim on appeal (waived); summary judgment dismissal of contract claim affirmed |
| Whether procedural or briefing defects warrant reversal | Lovro raised several errors on appeal | City argued issues were inadequately preserved or briefed | Court: Declined to reach additional arguments; issues not thoroughly briefed or without merit, affirmed judgment |
Key Cases Cited
- Kitto v. Minot Park District, 224 N.W.2d 795 (N.D. 1974) (establishes discretionary-function immunity for political subdivisions)
- Olson v. City of Garrison, 539 N.W.2d 663 (N.D. 1995) (discretionary-function exception prevents judicial second-guessing of policy decisions)
- Simmons v. Cudd Pressure Control, Inc., 969 N.W.2d 442 (N.D. 2022) (summary judgment standards and de novo review)
- Choice Fin. Grp. v. Schellpfeffer, 712 N.W.2d 855 (N.D. 2006) (summary judgment appropriate only after reasonable opportunity for discovery)
- Alerus Fin., N.A. v. Erwin, 911 N.W.2d 296 (N.D. 2018) (Rule 56(f) requires a supporting declaration showing essential facts cannot be presented)
- Perry Center, Inc. v. Heitkamp, 576 N.W.2d 505 (N.D. 1998) (district court may deny further discovery when it would not affect the summary judgment issues)
- Krueger v. Grand Forks County, 852 N.W.2d 354 (N.D. 2014) (issues not adequately briefed or supported may be forfeited on appeal)