*1 ND 157 GESSNER, Norma Charlene Appellant,
Plaintiff and MINOT, Municipal Corpora- OF
CITY County Manage-
tion, Water and Ward Appellees. Defendants
ment
Civil No. 980069. of North Dakota.
Supreme Court
Aug. *2 15, By
ber City resolution of the Council, agreed provide Minot “operation and pro- maintenance of all of the ject City within February of Minot” as of 15,1982. Cory’s
[¶ 3] After death in Gessner wrongful a against filed death action Minot dismissal, and the District. Minot moved for alleging process insufficient upon service of Gullickson, Gunhus, Grinnell, Sara B. of city. granted The district court the mo- Klinger, Guy, Fargo, plaintiff & Swenson tion, 54(b),.certifica- entered an N.D.R.Civ.P. appellant. and tion, appealed and Gessner to this Court. Vendsel, McGee, Hankla, R. Jason Minot, City Gessner v. 529 N.W.2d Minot, Dobrovolny, Backes & for defendant (N.D.1995), we held the district court’s Minot, appellee City Gary and H. Lee 54(b) improvidently certification was granted, (argued), Kay (appearance), and M. Randall and appeal. we dismissed the The District Lee, Minot, of Olson Burns for defendant then summary filed a motion for judgment, appellee County Manage- Ward Water claiming against the action it should be dis- ment District. missed because the District had no control over the flood control structure at the time of WALLE, VANDE Chief Justice. Cory’s granted death. The district court appealed Norma Charlene Gessner summary judgment, dismissing Gessner’s judgments dismissing wrongful from her against claim appeal- the District. Gessner against City death action of Minot and ed. County Management the Ward Water Dis- Upon Service Minot perfect trict. We hold Gessner failed to attempted Gessner to commence and, process upon service of Minot conse- by her action serving Minot a sum quently, acquire personal the court did not mons and Schempp, on Robert A. jurisdiction over Minot. We further hold City Manager. the Minot The district court genuine there are issues of material fact process, found this was insufficient service of potential liability. relevant the District’s because Gessner should have served a mem judgment affirm We Minot governing body. ber of Minot’s Gessner summary but reverse the dismiss- upon city manager claims service was ing the District and remand for a trial on adequate. disagree. We the merits. son, four-year-old Cory [¶ 2] Gessner’s process service of [¶ 5] Valid is nec Hammond, July drowned on when essary jurisdiction personal to assert over a he fell a from concrete flood control device on Forks, defendant. Smith v. Grand River, adjacent the Souris located to Oak (N.D.1991). proce The Park in Minot. part The structure was aof serving process upon dure for is direct project flood control constructed the Unit- 4(d)(2)(E): ed N.D.R.Civ.P. Army ed Corps Engineers. States The (d) Personal Service. sponsoring agency acted as the lands, project, agreed to provide “all easements, rights-of-way necessary (2) Made How Service Within the State. subsequent construction and maintenance process Personal service of within the state “[mjain- improvement” the channel and to must be made as follows: operate
tain and all of the works for the improvement completion” channel after the (E) project. project completed township, a city, school dis- trict, district, park county,
and transferred to the District for control of other maintenance, operation municipal public corporation, by effective Decem- deliv- its guidance we provision, and look copy of the summons ering our stat- to construe interpretations court’s governing board.... of its member ute.1 for service Specific requirements Appeals has New York Court 8] The with, judg- complied strictly must be *3 if in interest” parties are “united held that procedural the on where ment service based is such that subject matter of the action the fol- not been rule have requirements of the ... together fall parties both “stand Swenson, 210 Farrington v. lowed is void. similarly the against affect one (N.D.1973). 82, 83 N.W.2d Center, Blood v. New York other.” Mondello city adopted the council Minot has 81, 219, 85, 590 N.E.2d N.Y.2d 604 80 § 40- N.D.C.C. government. Under form of (1992), citing Prudential Ins. Co. 19 N.Y.S.2d of body composed is governing Minot’s 08-01 Stone, 679 200 N.E. 270 N.Y. v. has city Minot mayor and aldermen. the the circumstances, (1936). par- the Under those plan under city manager adopted a also with of timely charged is notice ty not served city a ch. and has hired 40-10 and, of of action because institution officer manager to be its chief administrative relationship timely party, served with the However, the § 40-10-03. under N.D.C.C. maintaining a prejudiced in is deemed not city’s of city manager not a member is of the otherwise on the merits defense not, therefore, prop- body a governing and is Mondello, 19, 590 N.Y.S.2d barred claim. process on making person for service er Thus, instance, part- at 85. 604 N.E.2d See, Fargo, city. e.g., Nissen v. they are ners united in interest because are (N.D.1983) 655, (holding ser- 657 338 N.W.2d vicariously for the torts personally and liable city not ser- auditor was process vice of on within the co-partners committed of their commissioners). conclude We vice on j scope partnership business. Connell there properly court determined the district 383, Hayden, 83 A.D.2d 443 N.Y.S.2d v. process on Minot. was insufficient service (1981). however, Where, the action is 395 Unity in Interest the Codefendants “persons to tort who one recover for though she asserts even charged negligence produc- [¶ 7] Gessner with concurrent stat properly injuries failed serve Minot plaintiffs to will not be held to be obtaining prop has run for relationship ute of limitations ‘united in interest’ absent some service, timely she should be allowed giving er them rise vicarious between Connell, relate Minot and the service now serve have the acts of the other.” upon as a to her service the District back N.Y.S.2d at 396-97. in Minot “united interest” with codefendant are not united interest [¶ 9] Parties
under N.D.C.C. 28-01-38: statute if each could under the New York An is as to each defen- commenced plaintiffs assert different defenses him, the summons is served on dant when claims, untimely upon that service one joint contrac- a codefendant who is may prevent party that from con- of them tor or otherwise united in interest ducting appropriate investigation of a de- him. timely has served defendant fense which See, pursue. e.g., no or desire this statute an action is deemed interest Under Lindauer, Co. against a & Traders Trust v. have commenced defendant been Mfrs. (1987). upon party 513 N.Y.S.2d 637-38 summons is served Misc.2d when the interpretations New York’s united in interest with that defendant. Under who is united-jn-interest concept important most previously phrase We not construed the have party timely is in the context of this consideration whether “united interest” However, obligated by necessity protect has New York a similar served is statute. Code, 99; (Cal.) (N.Y.) Harston's provision CPLR tion as "Wait's Practice, 1. The New York is found at 203(b): is "A claim asserted in the 350.” See Estate Zins Kelsch Zins, (N.D.1988) interposed the defendant or co-defendant (noting deci- (1) sum- united in interest with him when: which our law is derived are sions of states from upon served the defendant....” mons is highly persuasive). §to deriva- source notes 28-01-38 indicate its acting investigating could also determine Minot was as the the nonserved defendant par- agent providing to both mainte- preparing all defenses available circumstances, timely ser- nance and care of the flood control structure ties. Under those original party acts to vicariously on the is liable on vice of the District satisfy underlying purpose of the statute theory respondeat superior city’s has a fair of limitations to ensure a defendant negligence undertaking. in that opportunity prepare a defense. potential All hinge of these defenses yet fully factual determinations not de- pro The New York decisions construing ap veloped enough on the record. It helpful guidance for vide necessarily these defendants do not stand or plying the term “united interest” under together plaintiffs *4 par against '§ We conclude two fall claims 28-01-38. they in Significant separate are united in interest when are them. and defenses are ties them, regard to the such relation to each other with available to each of and their interests subject plaintiffs may the action that aptly being antag- matter of be more described as they necessarily together, fall stand or onistic than united. We therefore hold ser- necessarily judgment against one will result vice of the summons the District did other, liability upon the and neither can not constitute commencement of the action reasonably raise a defense which is unavail Minot, against under N.D.C.C. 28-01-38. definition, that we able to the other. Under The district court did not err and the District are not code- conclude Minot complaint against Gessner’s Minot for insuffi- fendants united in interest. ciency process. of service of ' - reading allegations Summary Judgment In the the Dismissal [¶ 11] pleadings, readily apparent Minot and it is of the District the District have available different defenses granted The trial court sum together” and not “stand or fall on the mary judgment dismissal of Gessner’s plaintiffs against example, claims them. For against concluding: the argue the had a non- Minot could District presented evidence has been that the [N]o duty design delegable and construct a Management County Ward Water District unreasonably flood control structure not dan- has exercised control or direction over the children, gerous to but to do so. The failed City improvements flood control within the agreement factfinder could conclude Minot’s of Minot since 1982. Neither has it been operate to maintain and the structure after it County that the Wa- demonstrated Ward completed assumption was was not an of the Management retained ter District has duty design reasonably and construct a ability supervise to control otherwise operation safe structure and the and mainte- the of Minot’s actions. proximate nance of it was not the cause Contrarily, death. victim’s District supervision argue independent appears It that of the could Minot became an Corps Engineers to mainte- it all is limited contractor when resolved to undertake upkeep. has been operation and maintenance of the structure nance and No evidence County proximately Water presented and the victim’s death was the Ward [t]hat failure, years authority. Management caused Minot’s after several District has such danger operation and observation of the it the court’s dismissal of We review posed, maintaining to use care in reasonable under Gessner’s claim District reasonably the structure to make it safe for summary standards argue children. The District could further Summary judgment is a N.D.R.Civ.P. 56. duty owed no to the victim to maintain the procedure deciding an action without a reasonably structure in a safe condition. genuine disputes as trial when there are no material facts or the inferences question to either the [¶ 12] The is a fact facts, undisputed or if from the question E.g., of fact. Red be drawn for the trier Commodities, Eidsness, change not resolving disputed facts would River Inc. v. Conoco, (N.D.1990). Inc., 805, 1997 ND The factfinder the result. Pechtl v. N.W.2d (d) utility possessor main- ¶ to the considering 813. When burden of and the taining the condition evi- summary judgment, motion slight as com- eliminating danger favor- light most dence must be viewed involved, motion, the risk to children pared who party opposing the able to the all favorable given the benefit must be reasonably drawn can be
inferences which (e) exercise rea- possessor fails to Stanley v. Moun- Turtle from the evidence. danger care eliminate sonable ¶ 6, Oil, 1997 ND & tain Gas protect the children. otherwise N.W.2d sponsor the agreed to the District In of the flood control structure alleges the District construction undertaking Engineers. Corps attracted regularly knew children were adjacent agreed to hold responsibility the located that control structure flood the United States District knew save harmless city park, and the pro- any damages due to construction the structure “created should have known im- operate mem- ject harm to to maintain risk of unreasonable serious children, completion. When the especially after its public, provement bers of the children, completed in the District or should have known structure knew *5 responsibility operation the and age, accepted not realize of their would because fur- the risk.” The structure. maintenance seriousness failed to alleges negligently ther the statutory also has a 18] The District [¶ of the dan- public the of the existence warn authority structure and responsibility the structure, to gerous the failed condition of in necessary it action deems to take whatever prevent to a barrier children construct regard: structure, entering and failed to warn the agency When dams constructed federal the to eliminate dangerous condition or dam, dike, Any district. under control of guardrails pro- or by installing other danger or con- water control device flood or other tection. project by or with the trol constructed Risovi, agency v. but which In Mikkelson federal assistance (N.D.1966), applied by any operated the court or fed- is not maintained Reinstatement, responsibility in Sec- principles set forth shall become the eral ond, located. The Torts 339: of the district where is concerning take district Highly § 339. Conditions Artificial dike, dam, de- or other water control this Trespassing
Dangerous to Children necessary. vice it feasible or deems subject liability A land possessor of is 61-16.1-40. trespassing physical harm children by an artificial condition caused thereon in the District’s 19] From admissions upon the land if brief, prior could one infer respon- accepting operation and maintenance (a) place condition exists where the knowledge of in had facts sibilities possessor knows or is one which unreasonably constituted an dan- structure likely know that children are has reason to gerous hazard children: trespass, Berry fell DeeAnn On June (b) of which the condition one This flood control structure.... from the possessor reason to know knows has by Mi- drowning fully investigated was he realizes should realize and which Department.... not Police risk of an unreasonable death involve children, harm to bodily serious
(e) being of the 1977 youth aware addition the children because their generally aware of drowning, Minot was do the condition or realize not discover structures dangers the flood control intermeddling with it or risk involved particularly aware presented. Minot was coming dangerous the area made within play it, sometimes near that children would Conoco, Inc., structures, 161, ¶7, explored possi- ND and had precautions, such as fence genuine bilities N.W.2d 813. We conclude there are Minot further around the structure.... regarding issues of material fact the Dis- warnings repeated issued about the dan- authority trict’s to control the flood structure present- works gers that the flood control at regard- the time of the victim’s death and ed. duty, thereof, provide its or lack
structure free from unreasonable risk of harm to children in accordance with the Re- alleged safety at the site defects [T]he statement Section 389. There are numerous Cory “open fell were and obvi- from which ous,” questions potentially con- factual which could at least insofar as Minot was re- ' cerned_ early liability by This known as sult in either direct or vicarious drowning 1977 when a occurred at the the District on Gessner’s claims. These un- same site. preclude resolved factual issues determina- tion, law, as a matter of that the District has If in or should have known 1977 Minot knew hold, therefore, no in this case. We danger risk of obvious unreasonable in granting the district court erred the Dis- children, presented this structure there is summary judgment trict’s motion for dis- District, who, at least inference the missal. responsibility assumed total for mainte- operation, nance and should also have known affirm [¶ 22] We the district court’s order danger. of the obvious risk and The District dismissing party of Minot as a de- however, asserts, it had no control of the fendant, we reverse the district court’s order responsibility public structure or safe- defendant, party the District as a ty operation after assumed and we remand for a trial on the merits February maintenance of the structure *6 against the District. development There has been no [¶ 20] SANDSTROM, NEUMANN and legal facts on this record as to who has title n MARING, JJ., concur. to this flood control structure or who has authority such control or to be considered a MESCHKE, Justice, concurring and dis- adjacent possessor of the structure and land. senting. might acting The facts show Minot was as an agent operating of the District and main- agree properly I the district court structure, taining the flood control and the pro decided there was insufficient service of principal, vicariously as Minot’s is Still, upon cess of Minot itself. I any negligence by per- liable for Minot in deplore special technical treatment creat forming undertaking. that The District re- procedure ed our rules of for service of periodic reports city’s operation ceives of the entity, process upon governmental a as dif activities, and maintenance from which a entity. Compare ferentiated from a business factfinder could also infer the District re- (deliv process entity on a service business responsibility tained control and for the officer, director, ery superintendent “to an or developed, might structure. Once the facts managing general agent,” or under negligently also show the flood structure was 4(d)(2)(D)(i)) N.D.R.Civ.P. with service on a causing designed, an unreasonable risk of governmental entity (delivery any “to mem children, negligently harm to and the District board,” governing Rule ber of its under duty sponsor project breached its as 4(d)(2)(E)). may be desirable to While by failing to eliminate the risk. provide specifically govern service on for - reasons, Although question of mental entities for some there duty generally a that do not whether defendant owes a is seems to be no reason the rules court, preliminary question a on the chief executive offi law authorize service duty depends upon governmental entity. any than when the existence of a cer of a More issues, quasi-legislative delegate governmental the resolution of factual those of a facts unit, must be resolved the trier of fact. Pechtl the chief executive officer would be the any portion having in common acting to figure defend rations responsible for most boundary, by agreement territory or their a claim. through govern- their into entered the chief city manager shall be “The 25] [¶ bodies, jointly cooperatively exer- may or city-” administrative officer any separate powers, or respective cise their Elsewhere, generally, § N.D.C.C. 40-10-03. contracting parties to or power common chief exec- officer or the chief administrative (My emphasis). any powers_” similar for qualifies unit governmental of a utive powers municipality include: “Flood of a entity. Notable service of construct, acquire, projects. To control state, mu- 4(j)(2): a “Service F.R.Civ.P. finance, maintain, operate, flood and control governmental nicipal corporation, or other adjacent projects, both within and to control subject shall be effected organization to suit municipality, purpose such such and of by delivering copy of the summons necessary property acquire real offi- its chief executive by purchase eminent ironic, easements therefor just unjust, ...” but cer. It is not domain, adopt and to such ordinances City in this case on the that service required regulate reasonably if case be perfectly been valid this would have 40-05-01(68). brought in federal court. We same.” N.D.C.C. See also had been 40-05-01(59) Court, making responsible empowering who are this rules, from, be more con- procedural cooperate should accept and contract “[t]o aid injustices in templative potential with, comply and meet the re- with hope Joint Procedure their content. our any quirements of federal state will revision Committee recommend establishment, construction, and mainte- remedy can this differential treatment that works, public including dams and nance of litigants, injustices for other lead ”, ... et reservoirs ... control cet- for flood adopt it. this Court (My emphasis). era. “Cities shall also have power agreement enter into reversing summary 26] I concur government, agency, municipali- against the this claim ty government, agency, ... to hold such There are numer- Water Resource District. municipality harmless from and all liabil- concerning its of fact both direct ous issues ity arising from or claim of the estab- liability. and vicarious *7 lishment, construction, and maintenance of dissent, however, respectfully I 27] works, indemnify govern- such and to such Re- majority’s conclusion that the Water ment, municipality any agency, or joint be “a contractor source District cannot ”, by ... et cetera. Id. A sustained City or otherwise united interest” with the specifically empow- resource district is water my opinion, of Minot.2 In most of the issues 61-16.1-09(3), (my § ered under N.D.C.C. concerning of fact the District’s vicarious lia- emphasis), to “contract with the state or bility unity of equally issues of fact for its government, department federal majori- City The interest with Minot. thereof, any municipality within ty’s interesting speculations about different district, furnishing assurances and City Dis- possible defenses and the cooperation requirements meeting local questions for trict mirror undecided factual any project involving ... water.” control joint liability. City jointly A and a water resource district District [¶ 28] [¶29] jointly powers. agreed a flood That can exercise their Part on control structure. 54-40-01(1) Partners, joint project. § make it a N.D.C.C. declares: “Two or should venturers,3 joint agency relationships of- governmental municipal corpo- more units or § § 2. See 46 Am.Jur.2d Ventures 3. See 46 Am.Jur.2d Joint Ventures Joint omitted): (1994)(footnotes are, omitted): upon joint (1994)(footnotes "Service "Joint ventures may by personally serving pro- be venture made general, governed partner- the same rules as joint on one cess venturers. Service And, joint ships.” § 24: "Each member of a any joint on venturer is deemed service on all the agent regarded as both an venture be his theory joint others on each venturer principal himself....” See coventurers and agent principal and the of the others.” summary judgment completely dis- between themselves agreements have ten City missing claim of Minot. this For joint responsibilities. their how to share eh. 45-16 compare N.D.C.C. examples, Herbert L. Meschke (“Relations Each Other And Partners To Of ch. 45-15 Partnership”), N.D.C.C. To with
(“Relations Dealing To Persons Of Partners Partnership”), particularly N.D.C.C.
With (“Partnership partner’s hable 45-15-05 conduct”). Similarly, compare
actionable
(“Relation
Prin-
Between
ch. 3-02
N.D.C.C. ch. 3-08
cipal
Agent”),
And
make the valid joint binding “a con- on the or otherwise united interest” with
tractor
the District. me, project sounds like a To this
[¶31] one, one, joint
joint like a and these it looks joint project. like it was a
entities acted opportunity have the
believe Gessners should joint prove project. a trial it at reasons, I For these would also re- *8 summary judgment dismissing the
verse the Minot, for a
City of and would remand
complete of the factual dis- determination unity
putes about their of interest. Those inextricably disputes
factual are intertwined disputes factual on vicar-
with the unresolved are other-
ious of the District that to the
wise remanded. The dismissal as provisional findings that it was
should be “joint or otherwise united
not a contractor Therefore, I from affirm-
interest.” dissent they may project, except be enterprise Municipal Corporations, Am.Jur.2d Coun- also 56 ties, statutory provisions Political Subdivisions And Other constitutional or limited omitted): "[Tjhere (1971)(footnote seems to be they particular jurisdiction in which prevents law which two or more no reason in located.” engaging joint municipal corporations from in a