State Ex Rel. North Dakota Department of Corrections & Rehabilitation v. Haskell, 2017 ND 252

On Dec. 9, 2012, NDYC employee Delmar Markel was injured when inmates escaped locked rooms; Markel sued the State alleging negligence (faulty locks) and constructive/retaliatory discharge.
Markel filed his complaint on Nov. 2, 2015. The State moved to dismiss the negligence claim under the Workforce Safety and Insurance (WSI) Act immunity and argued Markel failed to exhaust administrative remedies for his discharge claim.
The district court dismissed the discharge claim for failure to pursue administrative remedies (Jan. 21, 2016) but denied dismissal of the negligence claim.
The State renewed its challenge to the negligence claim after this Court’s decision in Bartholomay clarified that the WSI intentional-tort exception requires an employer’s "intentional act done with the conscious purpose of inflicting the injury," narrowing prior “certain to occur” precedent in Zimmerman.
The State petitioned this Court for a supervisory writ to vacate the district court’s denial of summary judgment; Markel cross-petitioned to vacate the dismissal of his discharge claim.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether WSI immunity bars Markel's negligence claim	Markel argued State’s knowledge of faulty locks and resulting risk sufficed to overcome immunity	State argued statute bars civil suits absent employer’s conscious intent to inflict injury	Court held WSI immunity applies; Markel failed to show employer acted with conscious purpose to inflict injury
Proper standard for intentional-tort exception	Zimmerman’s “certain to occur” standard favors plaintiff	Bartholomay narrowed standard to actual conscious purpose to inflict injury; State relies on this	Court applied Bartholomay, rejecting Zimmerman’s broader test
Appropriateness of supervisory writ to review denial of summary judgment	Not asserted by Markel; State argued immediate review necessary to avoid full litigation expense	State argued denial would force unnecessary discovery despite immunity	Court granted supervisory relief to prevent injustice and unnecessary litigation
Whether to review dismissal of discharge claim by supervisory writ	Markel sought writ to reinstate discharge claim	State defended dismissal for failure to exhaust administrative remedies	Court denied Markel’s cross-petition and left dismissal intact (appeal available after final judgment)

Zimmerman v. Valdak Corp., 570 N.W.2d 204 (N.D. 1997) (earlier “certain to occur” framing of intentional-injury exception)
Bartholomay v. Plains Grain & Agronomy, LLC, 881 N.W.2d 249 (N.D. 2016) (clarified intentional-tort exception requires conscious purpose to inflict injury)
Roe v. Rothe-Seeger, 608 N.W.2d 289 (N.D. 2000) (standards for exercising supervisory writ jurisdiction)
Mitchell v. Sanborn, 536 N.W.2d 678 (N.D. 1995) (supervisory jurisdiction appropriate where exclusive-remedy issues and extensive discovery are implicated)
Hellman v. Thiele, 413 N.W.2d 321 (N.D. 1987) (orders denying summary judgment are generally not appealable)