*1 costs) fees, trial, excluding though, living but school of about the time she was $2,300. sharing expenses The evidence also she with her mother and shows has been able to build a retirement account that household. Meanwhile, put money savings. some in he college degrees, she has expenses has been able to meet his in Bos- car, account, and a retirement and he has ton, but does not have a retirement account these, majority says none of Michelle Van substantial assets and does not own Klootwyk disadvantaged spouse. ais an automobile. He assumed the testimony, At the conclusion of the debt,2 the marital which will hinder his abili- considering and after all the facts and evi- ty to savings accumulate substantial assets or dence, including by major- that omitted in the foreseeable future. ity, the trial court Michelle Van Klootwyk Michelle argues [t 38] Van our Klootwyk’s request spousal support “is Wahlberg supports argument decision in her unsubstantiated” and “she is not disadvan- spousal support the trial court’s denial of taged by judge divorce.” “The trial clearly Wahlberg, erroneous. this Court responsibility weighing has the evi- spousal support held the award was not determining credibility dence as well as clearly case, erroneous. In that the husband Bullock, of the witnesses.” Bullock v. completed degrees in master’s and doctorate The record evi- during marriage. par- social work supports findings, dence the trial court’s depleted ties’ marital estate was to the extent and we should therefore conclude the $19,000 education, for the husband’s but request spousal court’s denial of the the wife received no additional education dur- support clearly is not erroneous.
ing marriage. The wife had a nurse’s Dale V. Sandstrom married, diploma certificate when she degree because she did not have a bachelor’s nursing, only job options
in had she limited nursing upheld field. We the trial spousal support requiring
court’s award pay
husband to
one-half the educational ex-
penses
incurred
his wife to secure a bach-
marriage. Klootwyk Michelle Van FORKS, CITY OF GRAND Defendant degree nursing obtained a bachelor’s dur- Appellee. ing marriage, gives which she concedes Civil No. 960269. earning capacity her the to meet her own expenses, and at the time of the divorce had Supreme Court of North Dakota. completed postgraduate degree. almost her May 1997. addition, Klootwyk Michelle Van has vol- untarily monthly payments made on her mar- Rehearing Denied June daughter’s mortgage bought ried cloth- things daughters and other for her adult grandchildren. Klootwyk Michelle Van daughter lived with her two months continued, however, 1995. She make daughter’s mortgage payments
her even Service, $7,000 Klootwyk voluntarily Van 2. Robert assumed thc Internal Revenue and a debt debt, $7,800 including money parties marital debt from to his mother for borrowed 1991, $12,000 failed business venture in debt to from her. *2 Shirley Moosbrugger, A. Dvorak of Dvorak Forks, Carter, plaintiffs and & Grand appellants. on brief. Submitted Pearson, F. Ronald Fischer of Christen- Fischer, sen, Larivee, & Clapp, Fiedler Forks, appellee. defendant and Grand Submitted brief.
NEUMANN, Justice. Daryl appeal Hovland
[¶ Caroline 1] summary judgment from a in favor of the Forks, City dismissing of Grand the Hov- injuries lands’ claim Caroline sustained in-line.skating city path. a while bike We court’s hold reverse the district decision and City not immune under North Dakota’s statute. in- Caroline Hovland was jured skating daughter, her while in-line with Derek, Carla, stepson, path on a bike City of Grand. owned maintained adjacent path Forks. The bike was rolling. Red River and was somewhat Caro- line, Carla, slight approached a Derek path; at the bottom decline decline, asphalt of the section Carla, skating in front of damaged. Caro- line, damaged asphalt. avoided the Caroline fell, suffering a damaged portion and hit the broken wrist. City sued the for Caro-
[¶ The Hovlands 3] theory. injuries negligence line’s City path They the bike asserted the knew duty had skating was used for in-line path and maintain all bike areas. inspect coordinator engineer’s An aid construction he deposition in a testified path system inspected City’s entire bike However, Co., annually. in 1992 and he telt v. EMCASCO Ins.
explained
inspect
Tschider,
portion
he did not
(citing
Binstock v.
(N.D.1985)).
where Caroline sustained her
be-
responsibility
cause of confusion over
for that
North Dakota
created
re-
City’s
section. The Hovlands claimed the
protect
creational use
statute to
inspect
path
failure to
maintain
the bike
*3
opened
landowners who
their land for recre-
injuries.
caused Caroline’s
Laws,
purposes.
ational
See N.D. Sess.
ch.
City
(1965),
summary judg-
[¶ 4] The
moved for
337
codified at
ch.
N.D.C.C.
53-08.
ment,
§
contending it was immune
Under
“an
from suit
N.D.C.C.
53-08-02
owner of
duty
land
keep
prem-
under North Dakota’s recreational
owes no
of care to
the
use stat-
ute,
53-08,
entry
citing
by
ch.
ises safe for
or use
others for
N.D.C.C.
Fastow v.
Dist.,
Burleigh County
purposes,
give any warning
or to
Water Resource
415
condition, use,
structure,
dangerous
of a
court,
N.W.2d 505
The district
activity
Fastow,
premises
persons
relying
entering
such
granted
City’s
the
sum-
purposes.”1
for such
mary
motion,
judgment
stating
is well
“[i]t
settled law that the recreational use statute
City
argues
Grand Forks
the
apply
political
does
subdivisions as well as
recreational use statute shields it from liabili-
private
appeal
land.” The Hovlands
the
ty for
skating
Hovland’s in-line
accident on
judgment, arguing
immunity
the
under the
path.2
making
argu-
bike
In
this
statute,
53-08,
recreational use
eh.
N.D.C.C.
ment,
City
part
relies on a
of Fastow
City
liability
does not shield the
from
applying
which discusses
the recreational use
injuries resulting
damaged
path.
on a
statute,
53-08,
political
N.D.C.C. ch.
to the
liability statute,
§
subdivision
N.D.C.C.
32-
Summary judgment
proce
is a
12.1-03(1). Fastow, 415 N.W.2d at
Ac-
508.
promptly
dure
disposing
of a lawsuit
cording
City,
to the
Fastow holds that be-
W.C.,
without a trial. P.E. v.
political
only
cause
subdivisions are
liable
375,
(N.D.1996). If,
viewing
380
after
private
when
landowners are liable under
light
evidence in the
most favorable to the
32-12.1-03(1),3
§
political
N.D.C.C.
subdivi-
non-moving party
giving
party
that
sions are not liable in recreational use law-
inferences,
benefit of all
there is
favorable
no
private
suits because
landowners are not lia-
genuine
dispute
issue of
as to the facts or
disagree.
ble. Id. We
any inferences to be drawn from the undis
facts,
Fastow,
puted
only question presented
or if the
this court reversed a sum-
law,
question
summary
is a
judgment
mary judgment
claim,
dismissing
is
Fastow’s
proper.
(citing Diegel City
32-12.1-05,
§
Id.
380
v.
that under N.D.C.C.
(N.D.
Fargo,
West
political
the defendant
subdivisions had
1996)).
See Rule
N.D.R.Civ.P.
In re
waived whatever
im-
viewing
appeal
summary judg munity
from a
they might
by purchasing
have had
ment,
Fastoio,
light
coverage.
we view the evidence
most
insurance
415 N.W.2d at
non-moving party
favorable
to the
and then
Fastow discusses N.D.C.C.
properly granted
determine if the trial court
liability protections
ch. 53-08 and states “the
53-08,
summary judgment
Er
Chapter
as a matter of law.
applicable
[are]
any
provides
proximately
1. The
negligence
act also
willful or mali-
caused
parties
dangerous
cious failure to warn
wrongful
any employee
act or omission of
act-
liability.
§
conditions will result in
N.D.C.C. 53-
scope
employee’s employ-
within the
County
Co-op.,
08-05. See Stokka v. Cass
Electric
ment or office under circumstances where the
Inc.,
(N.D.1985) (discuss-
employee
personally
would be
liable to a
conduct).
ing the definition of willful
claimant in accordance with the laws of this
state,
caused from some condition or
City
2. The
relies on
the version of
tangible property,
personal,
use of
real or
un-
existed in 1993.
this statute was
political
der circumstances where the
subdivi-
amended. See
note 5.
infra
sion,
private person,
would be liable to the
if
added.)
32-12.1-03(1)
(Emphasis
claimant."
provides,
3. Section
political
money
"Each
liable for
damages
injuries
when
are
Furthermore,
his-
according
to the
manner
the same
political subdivisions
patterned
as those
after
tory,
under the
circumstances
statute was
same
private
to a
owner
protections
applicable
are
Id.
did not intend to
Indiana’s.
Indiana
land,”
im-
that discussion was
immunity
political
un-
grant
subdivisions
To
holding.
Id. at 508.
to the
material
their recreational use statute. See
der
holding in
this court did
our
Kuruzovich,
reach
Bloomington
517 N.E.2d
53-
ch.
need to discuss whether N.D.C.C.
Dist.1987).
(Ind.App.
provided
government
OS
32-12.1-03(1);
applica-
§
N.D.C.C.
City argues
interpre
tion of
32-12.1-05 waived
does not account for our
sub
tation
immunity defense.
possible governmental
statute which makes
division
Contrary
City’s
that Fas-
contention
when
land
liable
political subdivision
tow establishes
hable;
disagree.
have
are
We
owners
*4
53-08,
court's
N.D.C.C. ch.
the Fastoiv
under
interpret
that
said
we will not
a statute
often
dictum,
a
of N.D.C.C. ch. 53-08 is
discussion
produces
manner
an
in a
that
absurd
to
compelled
decisis
and we are not
stare
Laschkewitsch,
result.
ludicrous
Estate of
it here.
follow
65,
(N.D.1993); Keepseagle v.
507 N.W.2d
67
§
argue
53-
The Hovlands
N.D.C.C.
Backes,
312,
454
315
If
political
was not intended to insulate
08-02
adopt
City’s proposed interpretation
liability.
legislature’s
from
subdivisions
statute, political
subdivisions would
of
intent,
maintain,
to encour-
the Hovlands
was
purposes
all
out
immune for
the recreational
open
land for
age private
to
their
landowners
58-03-01(4).4
§
This
lined
N.D.C.C.
rely on
purposes. The Hovlands
political
immunity for
give
subdivisions
would
jurisdictions as well
from several other
cases
person
any
public
a
used
caused
time
support
argu-
the “Model Act” to
their
as
public property
“purposes
for
of
roads
Act,
by the
ment. This Model
drafted
Coun-
58-03-01(4).
§
N.D.C.C.
This defini
user.”
“Suggested
Governments as
State
cil of State
broad,
so
it
be hard to conceive
tion is
would
very
to
Dako-
Legislation,” is
similar North
injury
political
for which the
an
suggested
statute. The
ta’s
use
essence,
immunity.
In
it
not claim
could
designed
encourage
it
legislation states
“is
to
immunity in
governmental
would reinstate
availability
by limiting
lands
of
Dist.,
Dakota.
v. Minot Park
North
Kitto
added.)
(Emphasis
liability of owners....”
(N.D.1974),
795
this court abol
224 N.W.2d
Governments,
“Public
24 Council
State
ished the doctrine of
of Private Lands: Limitations
Recreation
subdivisions,
applied
political
to
but
as it
Liability,”
Suggested
Legislation,
State
parties, expressly
applied
to the
(1965).
right
leg
reserving
legislature’s
to enact
subject.
Id.
on the
at 804.
islation
independent
An
review
by providing for
Kitto
legislature followed
agree
§
us
leads
N.D.C.C.
53-08-02
liability
history
legislative
Hovlands. The
§
See also Bulman
32-12.1-03.
N.D.C.C.
was
§
indicates the law
N.D.C.C.
53-08-02
632,
Co.,
521 N.W.2d
Hulstrand Const.
encourage
open
landowners
intended
9,
I, §
... Art.
N.D.
(“Although
pur
public
land to
for recreational
their
Const.,
in that
it does
is not absolute
312,
from
Minutes
poses. Hearing on S.B.
wrong,
every alleged
remedy
Committee,
require
Leg
Agriculture
39th
the Senate
important
guarantee
...
it does
substan
February
At the
Assembly,
1965.
islative
access to courts
enacted,
right
right of
lands
tive
public
time the statute
—the
re
wrongs.”). Applying the
redress of
liability in
civil
enjoyed immunity from
all
subdivi-
protection.
creational
statute
not need
and thus did
actions
visiting,
53-08-01(4)
sports,
study,
skiing,
§
water
winter
Prior to
N.D.C.C.
"
historical, archaeological,
includes,
viewing,
enjoying
purposes'
is not lim-
‘Recreational
sites,
scenic,
to,
geological,
or otherwise
or scientific
combination of the follow-
ited
one or
(Emphasis
using
added.)
purposes
swimming, boating, camp-
the user."
hunting, fishing,
land
ing:
hiking, pleasure driving,
ing, picnicking,
nature
completely
review,
sion
circumvents
rational basis
classifica-
legislature’s
intent under N.D.C.C.
32-
patently
tion will be sustained unless it is
12.1-03
leads
an unintended and ab-
arbitrary
relationship
and bears no rational
surd result.
legitimate governmental
to a
at
interest.
Id.
323. An intermediate level of review is most
Moreover,
if a
suscep
statute is
applied
important
often
when “an
substantive
constructions,
tible of two
one that would
right” is
involved. Id.
325. This standard
constitutionality
render it of doubtful
and one
requires
correspondence
a “close
between
not,
adopt
would
this court must
legislative goals.”
classification and
rendering
construction
it
constitutional.
Finally,
apply
Id. at 323.
before we will
K.A.S.,
Adoption
scrutiny,
strict
the issue must involve “inher-
(N.D.1993); see also Hanson v. Williams
ently suspect” or “fundamental interest” clas-
(N.D.1986);
County, 389 N.W.2d
sifications. Id.
Sebelius,
(N.D.
Patch v.
1982);
§ l-02-38(l)(explaining
Hanson,
this court held the
statute,
enacting
compliance
with the
impor-
personal
recover for a
is an
presumed).
state and federal constitution is
right deserving
tant substantive
an interme-
Interpreting
City suggests
the statute as the
diate
standard
review.
equal protection
question.
raises
serious
unwilling
“We are
to view human life and
granted
If
lands were
immu-
*5
safety
simply
as
a matter of economics....
nity
activities,
for all recreational
Caroline
right
personal injuries
to recover for
[T]he
injuries
could not
for her
recover
because she
important
an
right.”
is
substantive
using
path
the bike
for a recreational
use,
using
path
had
but
she been
the bike
for
Const.,
I, §
Id. at 325. See N.D.
Art.
a non-recreational use she would be allowed (“everything in this article [DECLARATION
interpretation
to recover. This
allows the
excepted
general
OF
is
RIGHTS]
out of the
government
persons
to treat
two classes of
powers
government
of
and shall forever re-
injured
public
differently:
lands
it forbids
inviolate.”).
main
injuries
recovery
personal
for
incurred dur-
Here,
City’s interpreta-
[¶ 16]
because the
activities,
permits
recreational
but
recov-
tion of the recreational use statute limits
ery
personal
during
for
incurred
recovery
personal injury,
for
we would exam-
non-recreational activities.
ine the classification under an intermediate
statute was created to encour-
Specifically,
standard of review.
we would
age private
permit public
landowners to
ac-
determine whether there is a “close corre-
private
cess to
lands.
In the context of
spondence
between
classification
lands,
public
private
disparate
access to
legislative goals.”
histo-
treatment of recreational users seems to
ry
why
does not disclose
reason
recre-
public
make
In the
sense.
context
access
public
ational user of
lands
not
could
recover
lands,
public
disparate
treatment
is
personal injuries
when a non-recreational
much
understand.
harder to
user could.
correspondence
Without
close
law
North Dakota
examines
legislative goals supporting
this classifi-
equal
challenge
possi
protection
under three
cation,
might
equal
the statute
well fail an
basis,
ble
rational
inter
standards of review:
protection challenge under an intermediate
scrutiny,
scrutiny.
mediate
and strict
See
standard of review.5
Hanson,
A
trary,
so, enacting
lature did
section 32-12.1-03.
interpret-
“our decision should not be
section,
interpreting the court stated:
imposing tort
ed as
on the State
“a
liable for
discretionary
in its offi-
the exercise of
acts
from a
or use of real
caused
condition
judicial,
capacity, including legislative,
cial
property
under those circumstances
quasi-judicial
functions.”
quasi-legislative
person
private
in which a
would be liable
Kitto,
wrong. is for It torts committed in our See v. act decision Fastow. Effertz activity upon the that execution of decided Bu Compensation Dakota Workers North attaches, liability not itself. for the decision (“[t]he reau, 525 N.W.2d today’s place official dis- presumed Nor does decision construc legislature is to know the immunity in cretionary jeopardy. ... to statutes and the failure tion of its acqui amend the statute indicates L. Herbert Meschke construction”). in that escence WALLE, Justice, dissent- VANDE Chief holding- Obviously unhappy with the ing. Fastow, majority relegates it dictum in the to by majority compelled “is stare Burleigh County Water which the not In Fastow (N.D. Dist, majority here.” ration- to follow decisis Resource necessary not decide the 1987), liability that it was to protections said “the alizes we 53-08, N.D.C.C., immunity court to because the Fastow Chapter applicable issue of [are] that purchase of waived in manner and held the insurance political subdivisions the same disagree. no im- pro- immunity. If there was those under the same circumstances as 32-12.1-03(1) employee personally would be liable to provides, 6. Section with the laws of this in accordance claimant money is liable for "Each state, or caused from some condition or damages injuries are when the tangible property, personal, un- or use of real negligence by or proximately caused the political subdivi- circumstances where the der wrongful any employee act- act or omission of sion, person, private be liable to the employ- if a would scope employee’s the within the the where claimant.” ment or office circumstances necessary to areas the immuni- ational are included under munity it would not have been pur- the in ty Chapter the of whether or not found 53-08. resolve issue immunity. waived that chase of insurance also contend it is not Hovlands Chapter interplay of the between Because public/private distinction dictates the which 32-12.1, N.D.C.C., it is Chapter 53-08 and exists, recreational whether immunity issue had to be decided obvious property. rather the characteristics of the opinion specifically in The Fastow Fastow. area in was a man- The recreational Fastotv following “[d]etermination *7 very similar to North Dakota’s Recreational realty.” 24 when attached to the Council of 24 Govern- Statute. Council State Use Governments, “Public Recreation on State ments, on Lands: “Public Recreation Private Liability” Private Lands: Limitations Liability,” Suggested State Limitations (1965). Legislation, Suggested 151 State (1965). argu- Legislation, 150 Hovlands’ ments, majority, ignore the Nor the of the [¶ 29] the omission word embraced attempt already position this court “land” from the definition land an well-established legislature application by the to narrow the operating recre- provide, hiking, pleasure driving, picnicking, in amended nature 7. This section was 1995 " land, sports, visiting, study, skiing, includes all water winter '[l]and’ watercourses, roads, water, buildings, historical, ways archaeological, viewing, enjoying machinery equipment sites, scenic, there- structures and geological, or scientific or otherwise added) (emphasis became This amendment on.” (emphasis using purposes land the user." for purposes, effective on March 1995. For our added) although skating, It is that in-line clear apply. amended of "land” does not definition listed, specifically would not appears to cure a the amendment was made It upon "pleasure "land” similar Agriculture Commit- House "curious omission.” driving.” tee, Standing Committee on SB 1995 Minutes was amended in 1995 to (Feb. this statute 1995). of recreation- See definition " " any purposes' ac- includes 53-08-01(4), '[Recreational read purposes, '[Recre- al exercise, to, includes, tivity engaged purpose in for purposes’ but is not limited ational relaxation, education[,]” pleasure, previ- following: any one or combination of the swimming, camping, applies purposes here. hunting, fishing, boating, definition for our ous Co., Inc., history indi- rand Const. No of the statute. (N.D.1994) (holding sovereign found the The trial court such intent. cates warranted”), longer is no does definition “outdated and path fell under immune form of agree. augur I If the areas not well of land strictly interpreted as to immunity. suit were so from listed sec- only the various items
include judgment affirm the of the I would 53-08-01(1), legislature intent of the tion district court. who to those landowners provide purposes open their land for recreational SANDSTROM, J., concurs. a bike circumvented. To hold that would be clearly designed recre- path, a course
ation, the stat- not be included under should pur- of land contradicts
ute’s definition act, interpret not
pose of the and would Americana in this manner. See Serv., Dept. Human v. Healthcare (use “in of word list). incomplete an cludes” indicates ND 91 SCHWARTZ, L. Plaintiff 32-12.1-03(1), Londa Paced with section Appellee, placed on that and the construction Fastow, i.e., forego- language in “[u]nder subdivision is hable ing provision SCHWARTZ, D. Defendant Ronald or use of injury caused from a condition Appellant. only under circumstances property real those liable for private person would be in which Civil No. 960321. majority injury,” such Fastow But, it is a the result is absurd. concludes Supreme of North Dakota. Court dispute Legislature not after did result May decision, but rather reinforced. the Fastow Legislature counter-act Not did reinforced it it
the decision See fn. 2.
through recent amendment. its weak Apparently recognizing the argument, legislative-intent
ness of its giving the the construction observes pro equal
City immunity “might well fail an intermediate stan challenge under
tection assume, review,” forecasting, I its dard of *8 seem amendments which
holding on the 1995 says now exactly what the
to enact may be expect there not intended. would establish reasons which
several correspondence between
“close legislative goals” in
classification immune from Kitto, 224 users. This Court all, 803, did, “this after observe liability is one which
area of modify shape within legislature ean[ ] authority.” Notwithstand
its constitutional Kitto, majority opin words these
ion, v. Hulst coming heels of Bulman on the notes essentially area made lake in an rural and necessary case on are to resolve this issues in a path is more the bike here somewhat 53-08, (1) Chapter or not appeal: Whether However, split setting. do not urban which limits significantly, a fine hair. Most there is such landowners, to subdivi- applicable is nothing Chapter specifies 53-08 which and_” Fastow, sions; at 507. N.W.2d rural, immunity granted only apply should not But or the conclusion whether open legislature areas. If the intended such apply to use statutes so, likely have application, it would is holding is or dictum political subdivisions following our decision amended majori- apparent import, it is little Effertz, accordingly. and the ty displeased with is surroundings at 693. The and of the location in this would it would case and result lead not as recreational area are determinative it in overrule event. provided. whether should contend [¶ 26] Hovlands paths Chapter Bike are within 53- [¶28] apply not the bike Chapter does 53-08 53-08-01(1) 08’s definition of “land.” Section affording City immunity in path because “ states, roads, water, includes water- ‘[l]and’ to the intent of this case runs counter courses, private ways buildings, struc- They never opine the statute was statute. machinery equipment thereon tures property with the charac- intended cover realty.”7 This list when attached to is path. The statute’s bike teristics exhaustive, thus does not include intent, maintain, encourage pri- they was to original land, paths. definition open their land for recre- vate landowners to Act, Chapter from the Model 53-08 differed law, which purposes. This uniform ational as, “land, roads, water, which defines land drafted the Council State Govern- watercourses, ways buildings, “Suggested Legislation,” as State ments structures, machinery equipment