Margaret Cichos, individually, and as the surviving spouse of Bradley Cichos, and as Personal Representative of the Estate of Bradley Cichos, deceased, Lyman Halvorson, individually, Kenzie Halvorson, individually, Landon and Sierra Halvorson as parents and natural guardians of A.H. DOB 2011, a minor child, each individually and collectively as assignees of Lyle Lima, Lyle Lima, individually v. Dakota Eye Institute, P.C., Dakota Eye Institute, LLP, Briana Bohn, O.D., individually
No. 20180347
IN THE SUPREME COURT STATE OF NORTH DAKOTA
9/24/19
2019 ND 234
Plaintiffs and Appellants
v.
Defendants and Appellees
Appeal from the District Court of Pierce County, Northeast Judicial District, the Honorable Donovan J. Foughty, Judge.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Opinion of the Court by Tufte, Justice.
Daniel M. Traynor (argued) and Jonathon F. Yunker (appeared), Devils Lake, N.D., for plaintiff and appellant Margaret Cichos.
Timothy M. O‘Keeffe (on brief), Fargo, N.D., for plaintiffs and appellants Lyman and Kenzie Halvorson.
Mark V. Larson (appeared), Minot, N.D., for plaintiffs and appellants Landon and Sierra Halvorson.
Jason R. Vendsel (on brief), Minot, N.D., for plaintiff and appellant Lyle Lima.
Tracy V. Kolb (argued), Bismarck, N.D., for defendants and appellees.
Cichos v. Dakota Eye Institute, P.C.
No. 20180347
[¶1] Plaintiffs appeal from the district court‘s judgment and amended judgment dismissing their complaint. The parties dispute whether a physician in North Dakota owes a duty to third parties to warn a patient regarding vision impairments to driving; whether medical malpractice claims are assignable; and whether the medical expert affidavit met the requirements of
I
[¶2] In their first amended complaint, the plaintiffs alleged the following facts. In May 2016, Lyle Lima was driving his truck on a highway when he collided with a horse-drawn hay trailer. The collision killed one of the five passengers on the horse-drawn trailer and injured the others. In April 2015, a doctor at Dakota Eye
[¶3] The injured parties and their representatives made a claim against Lima, which he could not fully satisfy. In partial settlement of the claim, Lima assigned his medical malpractice claim against Dakota Eye Institute and any recovery he might receive to the other plaintiffs. The injured parties and Lima then filed this suit individually and as assignees of Lima against Dr. Bohn, Dakota Eye Institute P.C., and Dakota Eye Institute LLC. The defendants filed two motions to dismiss: one arguing Lima‘s claims were not assignable and should be dismissed under
II
[¶4] In Ramirez v. Walmart, we explained:
A motion to dismiss under
N.D.R.Civ.P. 12(b)(6) tests the legal sufficiency of the claim presented in the complaint. On appeal, we construe the complaint in the light most favorable to the plaintiff and accept as true the well-pleaded allegations in the complaint. This Court will affirm a judgment dismissing a complaint for failure to state a claim underN.D.R.Civ.P. 12(b)(6) if we cannot discern a potential for proof to support it. We review a district court‘s decision granting a motion to dismiss underN.D.R.Civ.P. 12(b)(6) de novo.
2018 ND 179, ¶ 7, 915 N.W.2d 674 (internal citations and quotation marks omitted).
III
[¶5] Appellants argue Dr. Bohn owed a duty to the injured parties to warn Lima that his vision was below the minimum standard to operate an automobile. Third party liability for medical malpractice is an issue of first impression in North Dakota. Appellants cite several cases from other jurisdictions in support of a duty to third parties in various circumstances. Many of these cases involve physicians prescribing or administering medications and failing to warn about side effects. Such cases are of limited persuasive value here where no medication was administered to Lima. In situations similar to this one, other jurisdictions are divided, but we find more persuasive those that state there is no third party duty to warn a patient based on public policy considerations.
[¶6] “[I]n a negligence action, whether or not a duty exists is generally an initial question of law for the court.” Bjerk v. Anderson, 2018 ND 124, ¶ 10, 911 N.W.2d 343 (quoting APM, LLLP v. TCI Ins. Agency, Inc., 2016 ND 66, ¶ 8, 877 N.W.2d 34 (internal citation omitted)).
The court must balance the following factors when determining the existence of duty in each particular case: (1) foreseeability of harm to plaintiff; (2) degree of certainty that plaintiff suffered injury; (3) closeness of connection between defendant‘s
conduct and injury suffered; (4) moral blame attached to defendant‘s conduct; (5) policy of preventing future harm; (6) extent of burden to defendant and the consequences to the community of imposing a duty to exercise care with resulting liability for breach; and (7) availability, cost and prevalence of insurance for the risk involved.
Bjerk, at ¶ 18 (quoting Hurt v. Freeland, 1999 ND 12, ¶ 13, 589 N.W.2d 551 (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 53, at 359 n.24 (5th ed. 1984))). Although “[i]mposition of a duty on these facts is a policy-laden question better suited to legislative judgments . . . courts must sometimes consider public policy in determining whether a duty of care applies in a particular situation.” Bjerk, at ¶ 24.
[¶7] In Kolbe v. State, 661 N.W.2d 142 (Iowa 2003), Charles Kolbe was struck by a vehicle driven by Justin Schulte. Id. at 143. Schulte had a form of macular degeneration called Stargardt‘s Disease which leaves him blind when looking directly ahead and requires him to use his peripheral vision to see. Id. at 143-44. Three doctors wrote letters to the Iowa Department of Transportation (“IDOT“) recommending Schulte be permitted to drive with restrictions. Id. Schulte collided with Kolbe while Kolbe and his wife were riding bicycles. Id. at 145. The Kolbes sued Schulte‘s doctors under a theory of negligence in recommending to IDOT that Schulte be permitted to drive with restrictions. Id.
[¶8] The Kolbe court analyzed the issue of “whether a physician owes a duty to persons not within the physician/patient relationship.” Id. Three factors were weighed to determine if there was a duty: (1) the parties’ relationship, (2) reasonable foreseeability of harm to the injured person, and (3) public policy considerations. Id. at 146. The court weighed these factors “under a balancing approach and not as three distinct and necessary elements. . . . [W]hether a duty exists is a policy decision.” Id. “More important than [the first two factors] is the issue of the public policy concerns implicated by imposing liability on physicians under such circumstances. As we stated above, the existence of a duty depends largely on public policy.” Id. at 147. The court noted there was no privity between the Kolbes and the doctors and the harm to Kolbe was not a foreseeable result of the doctors’ recommendations. Id. at 146-47.
[¶9] The Kolbe court expressed particular concern regarding how physicians’ concerns over third party liability might affect how they treat their patients, thus compromising treatment. Id. at 148-49. A “therapist might . . . find it necessary to deviate from the treatment [he] would normally provide.” Id. at 149 (quoting J.A.H. v. Wadle and Associates, 589 N.W.2d 256, 263 (Iowa 1999)). Such incentives would destroy the patient-physician relationship. Id. “[P]hysicians may become prone to make overly restrictive recommendations concerning the activities of their patients.” Id. (quoting Schmidt v. Mahoney, 659 N.W.2d 552, 555 (Iowa 2003)). The court concluded that at “the public policy level, a physician does not have a duty to ‘protect the entire public from any harm that might result from his or her patient‘s actions.‘” Id. at 150 (quoting Crosby by Crosby v. Sultz, 592 A.2d 1337, 1344 (Pa. Super. Ct. 1991)). “Rather, physicians must be able to fulfill their duty to patients without fear of third party liability claims for the acts of patients over which physicians have no control.” Id. The physician‘s primary obligation is to treat the patient. Id. at 149.
[¶10] In Estate of Witthoeft v. Kiskaddon, 733 A.2d 623 (Pa. 1999), Witthoeft
[¶11] In Jarmie v. Troncale, 50 A.3d 802 (Conn. 2012), Dr. Troncale diagnosed and treated Mary Ann Ambrogio for kidney and liver aliments, including hepatic encephalopathy, which impaired her ability to safely operate a motor vehicle. Id. at 805. Ambrogio crashed into the plaintiff, John Jarmie. Id. The plaintiff alleged his injuries were a result of Dr. Troncale‘s failure to warn Ambrogio not to drive. Id. The court analyzed duty by first considering foreseeability. Id. at 809. However, a “simple conclusion that the harm to the plaintiff was foreseeable . . . cannot by itself mandate a determination that a legal duty exists.” Id. “Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed. A further inquiry must be made, for we recognize that duty is not sacrosanct in itself but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.” Id. at 809-10. “The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant‘s responsibility should extend to such results.” Id. at 810.
[¶12] The Jarmie court examined Connecticut precedent and found no support for extension of duty beyond the patient-physician relationship. Id. at 811. Connecticut courts previously found harm foreseeable only when the victim was identifiable. Id. at 811-14. The court then turned to public policy considerations supporting each side. The “final step in the duty inquiry is to make a determination of the fundamental policy of the law, as to whether the defendant‘s responsibility should extend to such results.” Id. at 814. The Jarmie court determined public policy weighed in favor of the defendant physician because physicians “[1] do not expect to be held accountable to members of the general public for decisions regarding patient treatment, [2] optimal treatment of patients is frustrated by extending a physician‘s liability to unidentifiable third persons and [3] extending liability would lead to increased litigation and higher health care costs.” Id.
[¶13] The Jarmie court determined that putting physicians under third party duty would not meet the purposes of tort compensation, i.e., compensation of innocent parties, shifting loss to responsible parties, and deterrence of wrongful conduct. Id. When examining compensation, the court noted a victim could receive compensation elsewhere, for example, through the driver‘s
[¶14] The Jarmie court looked at specific factors: “(1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions.” Id. First, within a physician-patient relationship, the physician has a duty to the patient under common law principles, but this duty traditionally does not extend to third parties. Id. at 817. Second, the court said such an extension of liability would be “problematic, at best, because it would be inconsistent with the physician‘s duty of loyalty to the patient, would threaten the inherent confidentiality of the physician-patient relationship and would impermissibly intrude on the physician‘s professional judgment regarding treatment and care of the patient.” Id. at 818. Extension of duty would threaten confidentiality and affect how physicians treat their patients. Id. at 819, 820, 822. Physicians may advise patients against any activity that might harm a third party, giving far more restrictive advice than necessary in order to avoid litigation. Id. at 820-21. A physician who faces potential liability may give advice based not on an individual patient‘s condition, but rather on reducing the physician‘s risk of exposure to unknown members of the public who may interact with the patient. Id. at 822. In addition, an increase in litigation would be likely because a new category of plaintiffs arises when liability is extended to physicians, potentially driving up healthcare costs. Id. at 822-23. Finally, the court determined there was no clear trend among other jurisdictions. Id. at 826.
[¶15] In addition to these three decisions, other jurisdictions have also considered extension of third party duty in similar circumstances and also declined to impose such a duty. See Medina v. Hochberg, 987 N.E.2d 1206 (Mass. 2013) (distinguishing duty to warn patient about side effects of treatment while rejecting asserted duty to warn patients about driving risks from underlying medical condition); Schmidt v. Mahoney, 659 N.W.2d 552 (Iowa 2003) (affirming dismissal of third party negligence claim against physician who advised a patient with seizure disorder that she could safely drive). Although the appellants cite several cases in support of their arguments, they are not persuasive. Most of the cited cases involve facts where the physician has prescribed medications or administered medications, vaccinations, or dialysis and failed to warn about side effects
[¶16] On the facts here, we consider more persuasive the cases that examine and reject a duty to third parties arising from a failure to warn a patient having a medical condition that increases driving risk. The facts alleged in the complaint support an inference of foreseeability in the sense that a person with impaired vision who drives a motor vehicle foreseeably will cause a traffic accident. However, the defendants did not treat or provide medication to Lima that led to the vision impairment. We find the public policy concerns expressed in the decisions discussed above to be determinative, and we decline to extend a physician‘s duty to encompass the situation presented here. We conclude a physician has no duty to third parties arising from the physician‘s failure to warn a patient about driving risks resulting from the patient‘s medical condition.
IV
[¶17] Next the plaintiffs argue that the district court erred in dismissing their collective claim as assignees of Lima‘s claims against the defendants. Assignability of a chose in action has long been recognized in North Dakota law. See Roberts v. First Nat‘l Bank of Fargo, 8 N.D. 474, 79 N.W. 993 (1899).
The right to bring an action or recover a debt or money is a chose in action, and a chose in action is a form of property. [A] “chose in action” is a legal claim or a right to bring an action to receive or recover a debt, money, or damages by a judicial proceeding, and is intangible personal property. An assignment transfers a property right, interest, or claim from the assignor to the assignee. Generally, a person may assign a legal claim or a chose in action.
In re Guardianship of V.A.M., 2015 ND 247, ¶ 17, 870 N.W.2d 201 (internal citations omitted). An absolute assignment generally divests the assignor of all control and right to the cause of action, and the assignee is entitled to control the cause of action and to receive the benefits. Id. at ¶ 18. “There is a general right to assign common law and statutory rights unless there is an express prohibition in a statute or a showing that an assignment would clearly offend an identifiable public policy.” 6 Am. Jur. 2d Assignments § 7 (2019). Exceptions to assignability include actions of “wrongs done to the person, the reputation, of the feelings of the injured party, and to contracts of a purely personal nature, like promises of marriage.” Goodley v. Wank & Wank, Inc., 133 Cal. Rptr. 83, 84-85 (Cal. Ct. App. 1976). Thus, we start our analysis from the premise that claims are generally assignable and determine whether there is an exception that applies here.
[¶18] Defendants argue that medical malpractice claims are not assignable because they are intensely personal claims like personal injury claims that are generally not assignable and also because they stem from the duties in the confidential physician-patient relationship. The defendants compare the current medical malpractice claim to personal injury claims and legal malpractice claims, both of which are generally not assignable. See, e.g., Regie de l‘assurance Auto. du Quebec v. Jensen, 399 N.W.2d 85, 89 (Minn. 1987) (personal injury claim not assignable); Goodley v. Wank & Wank, Inc., 133 Cal. Rptr. 83 (Cal. Ct. App. 1976) (legal malpractice claim not assignable); AMCO Ins. Co. v. All Solutions Ins. Agency, LLC, 198 Cal. Rptr. 3d 687, 694 (Cal. Ct. App. 2016) (“the exceptions to the general rule favoring assignability of causes in action include tort causes of action for wrongs done to the person, the reputation or the
[¶19] We have not previously addressed whether a medical malpractice claim is excepted from the general rule that claims may be assigned. However, in the context of Medicaid, we have acknowledged specific statutory authority providing for assignment of “medical costs incurred,” including malpractice claims for pain and suffering. Grey Bear v. North Dakota Dep‘t of Human Servs., 2002 ND 139, 651 N.W.2d 611. The issue presented here is one of first impression in North Dakota.
[¶20] The longstanding general rule is that on “grounds of public policy, the sale or assignment of actions for injuries to the person are void.” North Chicago St. R. Co. v. Ackley, 49 N.E. 222, 225 (Ill. 1897). Here, there is no assignment of an action for personal injury to Lima, only an assignment of his claim for reimbursement from defendants. The “injuries resulting [here] are not personal injuries, in the strict sense of injuries to the body, feelings or character.” Joos v. Drillock, 338 N.W.2d 736, 739 (Mich. Ct. App. 1983). Lima‘s claim against the defendants derives from his liability to the injured parties for money damages resulting from the collision. If medical malpractice by the defendants is the proximate cause of monetary damages Lima became obligated to pay, it implicates none of the public policy concerns typically associated with personal injury claim assignments. See Ackley, 49 N.E. at 225; Lingel v. Oblin, 8 P.3d 1163, 1166-67 (Ariz. Ct. App. 2000); Dodd v. Middlesex Mut. Assurance Co., 698 A.2d 859, 864 (Conn. 1997).
[¶21] Because of the purely economic nature of the medical malpractice claim here and the absence of any claim for personal injury to Lima, we conclude it is assignable. See Standard Chartered PLC v. Price Waterhouse, 945 P.2d 317, 327 (Ariz. Ct. App. 1996) (“our supreme court demonstrated that, for tort claims of an economic nature, the court continued to adhere to an assignability rule“); New Hampshire Ins. Co., Inc. v. McCann, 707 N.E.2d 332, 336 (Mass. 1999) (Discussing a legal malpractice claim assignment, the court states, “It is important to note that New Hampshire‘s claim is not for personal injury, but for economic loss. We think the claim should be assignable unless some clear rule of law or professional responsibility, or some matter of public policy necessitates that the assignment should not be enforced.“). As presented in this case, the public policy reasons that weigh against assignment of malpractice claims are not present, so the general rule that a chose in action may be assigned remains applicable.
V
[¶22] Finally, under
Any action for injury or death alleging professional negligence by a physician, . . . must be dismissed without prejudice on motion unless the plaintiff serves upon the defendant an affidavit containing an admissible expert opinion to support a prima facie case of professional negligence within three months of the commencement of the action. The court may set a later date for serving the affidavit for good cause shown by the plaintiff if the plaintiff‘s request for an
extension of time is made before the expiration of the three-month period following commencement of the action. The expert‘s affidavit must [1] identify the name and business address of the expert, [2] indicate the expert‘s field of expertise, and [3] contain a brief summary of the basis for the expert‘s opinion. This section does not apply to unintentional failure to remove a foreign substance from within the body of a patient, or performance of a medical procedure upon the wrong patient, organ, limb, or other part of the patient‘s body, or other obvious occurrence.
[¶23] “We have not precisely defined the standard of review to be employed by this court in reviewing a trial court‘s dismissal of a medical malpractice action under § 28-01-46,
[¶24] Section 28-01-46,
[¶25] Here, Dr. Weingarden‘s affidavit states his business address and his area of expertise. The district court determined the affidavit failed to include “a brief summary of the basis for the expert‘s opinion,”
[¶26] We determine that the affidavit meets the low threshold set out in
VI
[¶27] We have considered the plaintiff‘s remaining issues and arguments and conclude they are either without merit or unnecessary to our decision.
VII
[¶28] We affirm the judgment dismissing the third party claims, reverse the judgment dismissing the assigned claim, and remand for further proceedings.
[¶29] Jerod E. Tufte
Daniel J. Crothers
Jon J. Jensen
Jay A. Schmitz, D.J.
[¶30] The Honorable Jay A. Schmitz, D.J., and the Honorable Dale V. Sandstrom, Surrogate Judge, sitting in place of VandeWalle, C.J., and McEvers, J., disqualified.
Sandstrom, Surrogate Judge, concurring and dissenting.
[¶31] I agree with the majority‘s analysis on assignability of Lyle Lima‘s claim and on the sufficiency of the medical expert
[¶32] Although on potential liability to third parties the opinion focuses on “failure to warn,” this is not a failure-to-warn case. The complaint claims not mere “omission” but “commission.” The complaint alleges that the medical provider affirmatively told the patient he could drive, not that Dr. Briana Bohn merely failed to warn him that he could not. Indeed, as alleged in the complaint, if Dr. Bohn had remained silent, the operative medical advice to the patient would have remained “you‘re legally blind and cannot drive.” As alleged, Dr. Bohn told the patient he could drive and he did drive, killing Bradley Cichos and severely injuring five other passengers on a horse-drawn hay trailer.
[¶33] In the opening sentence of section III on potential third-party liability, the opinion at ¶ 5 states, “Appellants argue Dr. Bohn owed a duty to the injured parties to warn Lima that his vision was below the minimum standard to operate an automobile.” And at ¶ 16, the conclusion to the section, the opinion states, “We conclude a physician has no duty to third parties arising from the physician‘s failure to warn a patient about driving risks resulting from the patient‘s medical condition.” The opinion underrepresents appellants’ claim and substitutes for it a weaker one to address.
[¶34] But as the amended complaint alleges at ¶ 22:
Defendant Briana Bohn, O.D., failed to notify Lyle Lima that his vision did not meet the minimum requirements to operate a vehicle under North Dakota law. Instead, Dr. Bohn told Lyle Lima he could drive, with some restrictions.
Similarly, the appellants’ brief at ¶ 4 summarizes:
The April 2016 eye exam results showed Lima‘s vision was below the minimum standards required to operate a vehicle under North Dakota law. Instead of informing Lima he could not legally drive, Dr. Briana Bohn told Lima he could drive with certain restrictions.
[¶35] On the issue of liability to third parties, the district court based its decision on the opinion in Estate of Witthoeft v. Kiskaddon, 733 A.2d 623, 630 (Pa. 1999), and held that the deceased and other plaintiffs here were not foreseeable victims. I agree with the majority that the district court erred on the question of foreseeability, as the opinion states at ¶ 16: “The facts alleged in the complaint support an inference of foreseeability in the sense that a person with impaired vision who drives a motor vehicle foreseeably will cause a traffic accident.” I would send the case back at this point for the facts to be developed.
[¶36] We must remember that this case is at its earliest stage. The complaint has not been answered. There has been no discovery. The facts have not been developed. Our cases reflect that dismissal at the complaint stage is not favored and should occur only if the court is convinced it is impossible that facts could be developed to establish the claim. “In an appeal from a Rule 12(b) dismissal, we construe the complaint in the light most favorable to the plaintiff, taking as true the allegations in the complaint.” Ennis v. Dasovick, 506 N.W.2d 386, 389 (N.D. 1993) (citations omitted). “A trial court should dismiss under Rule 12(b) only when certain it is impossible for the plaintiff to prove a claim for which relief can be granted.” Id. Under this legal posture, for example, we must assume the patient was driving as authorized by Dr. Bohn.
[¶38] The plaintiffs present cases showing courts have recognized medical negligence liability to third parties. They cite failure-to-warn cases—cases less egregious than that alleged here—as an illustration. In response the defendants cite other cases where failure to warn was held not to establish liability to third parties.
[¶39] The majority fails to analyze the cases put forward by the plaintiff and the public policy arguments they contain. It appears a plurality of the states recognize potential liability of doctors to third parties in certain circumstances. In Davis v. S. Nassau Communities Hosp., 46 N.E.3d 614, 622 (N.Y. 2015), for example, the court extended the doctors’ duty to include third parties “the best position to protect against the risk of harm.”
[¶40] There are other cases where a party may be liable to third parties because of negligence. Wrongful death is an example. Although North Dakota and other states now have wrongful death statutes, there is also authority that wrongful death actions “can now be regarded as arising under the common law.” The Restatement (Second) of Torts § 925, comment k states:
“[T]here is no present public policy against allowing recovery for wrongful death,” so that the right of action can now be regarded as arising under the common law. Most of the details of the right may be controlled by an existing statute or taken by analogy from one. When recognized, this common law right has been utilized to fill in unintended gaps in present statutes or to allow ameliorating common law principles to apply.
The United States Supreme Court quoted in part by the Restatement above appears to recognize common law wrongful death actions in maritime cases. Moragne v. States Marine Lines, Inc., 398 U.S. 375, 390-403 (1970).
[¶41] The majority puts forth a public policy analysis discussing the possibility that third-party liability could interfere with a doctor‘s medical judgment in deciding on a course of treatment. But this is not a choice-of-treatment case. The majority raises the possibility that a patient may be more negligent than the doctor. But many patients simply trust what their doctor tells them they can or cannot do. And even if the driver had greater negligence than the doctor, under our comparative fault, two or more persons or entities can be negligent and have liability.
[¶42] The plaintiffs present cases showing courts have recognized medical negligence liability to third parties. They cite failure-to-warn cases—cases less egregious than that alleged here—as an illustration. In response the defendants cite other cases where failure to warn was held not to establish liability to third parties.
[¶43] A logical flaw in the majority‘s reasoning is that even if there is not third-party liability for the less serious failure to warn, that does not preclude liability for
[¶44] Consider a perhaps extreme but also potentially deadly analogy. There may be no negligence for a tenant to fail to warn his guest not to shoot his gun at the wall separating an adjoining apartment, but there well could be liability if he told his guest it was okay to do so. In that case, as in this case, serious bodily injury or death could be the result.
[¶45] Case law has many examples where failure to warn or advise is not a problem but giving incorrect advice is. Here are some examples. “Being unaware is not synonymous with ill or erroneous advice.” Stewart v. State, 845 So. 2d 744, 747 (Miss. Ct. App. 2003). “[R]elief is not warranted where counsel merely fails to inform a client about the various ramifications of gain time as opposed to volunteering incorrect information.” Henderson v. State, 626 So. 2d 310, 311 (Fla. Dist. Ct. App. 1993) (citations omitted). “We find the reasoning of the . . . courts persuasive with respect to the affirmative misrepresentation exception to the general rule regarding [no need to advise of] collateral consequences.” Rubio v. State, 194 P.3d 1224, 1232 (Nev. 2008). “Because a defendant need not be informed of all possible collateral consequences, misinformation about a collateral consequence does not make a guilty plea involuntary per se. But affirmative misinformation about a collateral consequence may nevertheless create a manifest injustice if the defendant materially relied on that misinformation when deciding to plead guilty.” In re Reise, 192 P.3d 949, 957 (Wash. Ct. App. 2008) (citations omitted).
[¶46] The cases cited above and others establish that there are circumstances in which incorrect advice is a problem when failure to warn or advise is not. On the other hand, the majority can cite no case holding—as it apparently does—that there is no difference between a failure to warn and giving incorrect—even deadly—advice.
[¶47] In this uncharted area of the law, we should move carefully and deliberately, waiting for the facts to be developed to inform any public policy decisions that courts may be compelled to make. The majority itself, at ¶ 6, sets forth factors several of which developing the facts in this case may inform:
The court must balance the following factors when determining the existence of duty in each particular case: (1) foreseeability of harm to plaintiff; (2) degree of certainty that plaintiff suffered injury; (3) closeness of connection between defendant‘s conduct and injury suffered; (4) moral blame attached to defendant‘s conduct; (5) policy of preventing future harm; (6) extent of burden to defendant and the consequences to the community of imposing a duty to exercise care with resulting liability for breach; and (7) availability, cost and prevalence of insurance for the risk involved.
The importance of waiting for the facts to be developed is emphasized by the fact that every one of the cases cited by the majority in support of these factors is a summary judgment case. See Bjerk v. Anderson, 2018 ND 124, ¶ 10, 911 N.W.2d 343; APM, LLLP v. TCI Ins. Agency, Inc., 2016 ND 66, ¶ 8, 877 N.W.2d 34; and Hurt v. Freeland, 1999 ND 12, ¶ 13, 589 N.W.2d 551. In fact every case cited in support of these factors in every one of these cases cited by the majority is a summary judgment case. See Perius v. Nodak Mut. Ins. Co., 2010 ND 80, ¶ 9, 782 N.W.2d 355; Rawlings v. Fruhwirth, 455 N.W.2d 574, 577 (N.D. 1990); Saltsman v. Sharp, 2011 ND 172, ¶ 11, 803 N.W.2d 553; M.M. v. Fargo Pub. Sch. Dist. #1, 2010 ND 102, ¶ 9, 783 N.W.2d 806; Schmidt v. Gateway Cmty. Fellowship, 2010 ND 69, ¶ 8, 781 N.W.2d 200; Iglehart v. Iglehart, 2003 ND 154, ¶ 11, 670 N.W.2d 343; Diegel v. City of West Fargo, 546 N.W.2d 367, 370 (N.D. 1996).
[¶48] If the facts turn out to be the most egregious possible, third-party liability may well be appropriate. If the facts are something less, a line may need to be drawn. Or perhaps on remand the issue here will become moot.
[¶49] Dale V. Sandstrom, S.J.