*1 78 hold State
We sovereign immunity
constitutionally raise action.13 Kristensen’s
аs a bar to affirmed. judgment is C.J., ERICKSTAD, PEDERSON and PAULSON*, JJ., Surrogate
SAND,
Justice, concur. KEYES,
Bradley Plaintiff and
Appellant, AMUNDSON, Amundson, Robert
Susan Service, Stoner,
Craig & Hotshot G J Inc.,
Inc., Trucking, Defend- and Getter Appellees.
ants 10396.
Civ. No.
Supreme of North Dakota. Court 28,
Dec.
1983.
Finally,
specific
We have not made
distinctions in
our decision should not be read as
between Kristensen's
acceptance
proposition
§
our discussion
sub silentio
his direct causes of action under the
claim and
direct causes of action under the Federal Consti-
State Constitutions.
Federal and
against
tution are available
State
It
officials.
First,
although
most of the deci-
recently
availability
we note
has been noted
that ”[t]he
immunity
involved
sions cited in our disсussion
Bivens-type
Fourteenth Amendment reme-
actions,
arising in the context of
§
claims
they
dy against
subject
nonfederal defendants is
applicable
equally
would be
Kristensen’s
question.”
Washington
serious
Morris v.
Metro-
direct cause of action under the United States
Transit,
politan Area
702 F.2d
1042 n. 10
Economou,
438 U.S.
Constitution.
478,
Butz
(D.C.Cir.1983) [referring to Bivens v. Six Un-
(1978),
L.Ed.2d
98 S.Ct.
Agents,
known Fed. Narcotics
403 U.S.
necessary
Supreme Court held that it is not
(1971)].
S.Ct.
trial. We vacate judgment, reverse the order a new and remand for a new trial.
This action arose out motorcycle- automobile accident which occurred on Au- *3 4, 1981, gust Williston, North Dakota. Bradley Kеyes [Keyes] riding was his mo- torcycle in a westerly direction on 26th Street. Susan Amundson [Amundson] pulled stop sign out from a path into the oncoming motorcycle, and the collision ensued. The vision of both drivers was obstructed a semi-trailer truck which parked had been on 26th Street near the by Craig intersection [Stoner], Stoner Keyes alleged that at the time of the acci- dent acting agent Stoner was anas for G & Service, J Hotshot Inc. & and Getter [G J] Trucking, Inc. [Getter].
Keyes seriously injured in the acci- injuries dent. permanent His pa- included Greenwood, Greenwood, Greenwood & ralysis right arm, toes, his loss of two Dickinson, plaintiff appellant; for and ar- jaw, broken and numerous lacerations Greenwood, gued by Dann Dickinson. permanent which have left scarring. Neff, Bjella, Rathert, Eiken, Wahl & Wil- Keyes shortly commenced this action af- liston, appellees defendants and ter the accident. The case was tried to a Amundsons; argued by Jacobson, Paul W. jury, and the ap- returned its verdict Williston. portioning negligence in the following Letnes, Marshall, Fiedler Clapp, & Grand Keyes 40%; 40%; amounts: — Amundson— Forks, appеllees for defendants and Stoner result, and As a Stoner—20%. the trial Service, Inc.; argued by and G & J Hotshot court concluded that compara- under our Jay Fiedler, H. Grand Forks. § statute, negligence 9-10-07, tive N.D. C.C., Keyes Whisenand, Williston, was not any Mclntee & entitled to for de- recov- ery and the Inc.; fendant action was appellee Trucking, and Getter dismissed.1 argued Whisenand, by Frederick E. Willi- Keyes has raised a number of issues on ston. appeal. We find it necessary to discuss (1) only two: did the trial court err in
ERICKSTAD, Chief Justice. allowing separate over the Bradley Keyes appeals judg- from the weekend after the case had been submitted ment, the them, (2) order his motion for Keyes prejudiced by judgment verdict, notwithstanding the unauthorized views of the accident scene the order denying his motion for a new of the jury.2 great members To a ex- issue, express opinion 1. We on whether or not raised the we need not address it at this 9-10-07, N.D.C.C., prohibits recovery in this time. jurisdictions construing situation. Other simi- issues, negligence Keyes comparative lar statutes has raised a number of other vаrying plain- including allegations surprise reached results cases of unfair caused negligence great tiff's is as as each individual nondisclosure of the basis for defendants’ negligence, aggre- expert opinion, improper defendant’s but less than the witness’s communica- gate negligence compi- jury, of all defendants. For a tion between the bailiff and the ficiency and insuf- issue, Annot., discussing support lation of cases of the evidence to the verdict. Keyes required A.L.R.3d 722 Because has not Because we cоnclude that reversal is interrelated, because where the are sepa- these issues dismissed or tent rated, improper separation jur- stated, was the as judge it above the trial opportunity them an which afforded ors shall admonish the members thereof that the accident scene after case had view they must not manner discuss the to them. submitted anyone, permit case with nor anyone to them, discuss they it with while are so trial A motion for a new is ad separated, dismissed they and that to the sound discretion dressed discuss consider the case court, will and its action on the motion in the room when all members of the appeal in disturbed on the absence of an jury are present.” of discretion. Wilson General abuse Corp., N.W.2d Motors argue The defendants Co., v. Monsanto Johnson court, permits discretion, statute in its (N.D.1981). It is within separation. to order a weekend We do not *4 the context that we consider issues this agree. clearly The statute gives the court by Keyes. raised authority “temporarily to jur dismiss” the background A factual the briеf of events if they ors have not by reached verdict leading jurors’ misconduct is neces- twelve midnight any day of of delibera sary. jury retired for deliberations tions; however, the such a duration of tem Friday, late in the afternoon on November porary dismissal is not unlimited. The objection Keyes’ the of 1982. Over court may jurors dismiss the “from twelve counsel, jurors the dismissed the and midnight eight day.” [Empha to a.m. that return homes them to to their for allowed sis permit, We read the statute to added.] a.m., approximately the weekend at 12:45 maximum, eight sеparation; at a an hour jurors Saturday, November 13. The jury the must reconvene for further delib to to continue their instructed return delib- eight erations at a.m. the next morning. Monday, at 8:00 a.m. on November erations The court does not have the discretion to separation, any allow a weekend other § 28-14-18, Keyes contends that N.D. separation specifically by not authorized C.C., prohibits separation weekend of the regard the law jury statute. The with to after case has jurors the been submitted in strictly conduct must followed order N.D.C.C., 28-14-18, pro- them. Section keep jurors jury of the conduct vides, part: pertinent suspicion. verdicts Fischer above jurors Knapp, De Conduct “28-14-18. of finally Ridl, When maray
retirement. the case N.W.2d jurors, they Separation jurors they submitted to the decide after begun in court or retire for deliberation. If mini have deliberations should be retire, they kept together they possibility the of mis mized lessen place charge of conduct, receipt some convenient under outside of officer, they upon a agreе an until ver- prejudicial information. dict, by temporarily are dismissed the Furthermore, does the record not court, discharged by permanently or are court admonished the indicate that the jurors the court.... Where the allowing separate them to the before agreed upon verdict twelve mid- 28-14-18, N.D.C.C., pro deliberations, weekend. Section night day of of jurors cases are vides that in all judge temporarily trial dismiss judge is re temporarily dismissed the jurors midnight eight from twelve jurors they that quired jurors a.m. that when the shall re- to admonish day anyone during all case with In cases not to discuss the sume deliberations.... unlikely to grounds, unnecessary irregularities are reoccur. claimed on other find it specifically reach We note that the these issues. dismissal, bage obstructing cans I they that are to consider view. also with all I only in the indicated that realize conditions would the case We conclude jury present. different at the have been time of the members allowing erred the trial court that accident because there would have been weеkend and in separate over the jurors to foilage more in the summer which [síc] them before dismissal. failing to admonish would have further obstructed vision.” Keyes a new how raised this instance of mis- In to obtain order ever, also show that he has in his motion for a new trial. Keyes must conduct way by the errors. prejudiced some its written memorandum the mo- tion, upon technical violations Mere reliance the court stated: showing prejudice the statute without plaintiff complains “The also of con- Bergeron, is insufficient. See Stаte interprets duct of the The Court (N.D.1983). 59(b)(2) to mean that when the has arrived at a verdict chance Keyes has established We conclude prove can Affidavits be used to the mis- by proof prejudice this case that, Regardless conduct. Court separation during the weekend misconduct has considered the Affidavits on either in- in extraneous which resulted agree side and cannot the verdict jury. When the formation was arrived at chance or the Monday morning, on at jury reconvened any prejudicial affecting сommitted acts three) (and jurors in- possibly least two the verdict.” they had the rest of the formed *5 the accident over investigated the scene of Thus, the court held that the affidavits jurors, Patricia One of the weekend. inadmissible, but went were on to conclude Larson, post-trial in a the incident related admissible, that, they Keyes even if affidavit: prejudiced by was not misconduct. Monday morning Larry Lynne “On We will whether Rule first address the scene of the said that he went to 59(b)(2)prohibits juror the use of affidavits report so that he could what hе accident prove juror misconduct other than a those who hadn’t had time. found for apparently trial chance verdict. The also she went to the Mrs. Devers said 59(b)(2) in holding considered Rule I at least one other also scene. believe However, we affidavits inadmissible. they Among things, other said went. Rohweder, made it clear Kerzmann v. persons those said that Susan Amundson 84, (N.D.1982), 321 N.W.2d if the truck was couldn’t have seen even disputes resolution of over the use of big gar- there were not there because support affidavits in of a motion for new bage cans there now.” 59(b)(2) requires Rule consideration of jury, Larry Lynne, the foreman of 606(b), and Rule N.D.R.Ev. responsive affidavit which submitted 59(b) Rule sets out the causes for new generally he Patricia Larson’s corroborated (2) provides: and Subsection incident: recollection of the “ (b) New Trial. The for- Causes for Monday morning, November “On may or mer verdict other decision deliberations, I stated to as we resumed granted vacated and a new trial on the ways that I had driven both party aggrieved any application of through the intersection that was the following materially causes affect- accident, and that I didn’t scene of the rights party: ing the substantial many op- others had had the know how that, in portunity my so. I stated to do jury, and when “2. Misconduct of the
opinion, it would have been difficult for asj any juror has been induced oncoming ever Mrs. Amundson to see traffic any general special or verdict or whether the truck would have been there sent any question submitted to gar- finding on or not because there were trees and tо a
83
jurors by
the court
a resort to the
open
the issue left
in Kerzmann, and we
chance,
determination of
the misconduct
attempt
to reconcile
provisions
may
proved by
any
the affidavit of
59(b)(2)
Rule
606(b).
Rule
jurors;
one of the
...”
Although rules of court are not
out
sets
the standards for de-
legislative enactments, we treat
them as
termining the competency
as a
legislative enactments to the extent that
witness when there
an inquiry
into the
they should be interpreted in accordance
validity of the verdict:
with princiрles
statutory
construction.
“(b) Inquiry
Validity
into
Verdict
Manke,
(N.D.
328 N.W.2d
or
Upon
Indictment.
an inquiry into the
1982). When two or more conflicting stat
validity
indictment,
of a verdict
utes or rules relate to the
subject
same
any
as to
matter or state- matter in general, every effort should be
occurring during
ment
the course of the
give
made to
meaningful effect to each
jury’s deliberations or to the effect of without rendering one or the other useless.
anything upon
any
his or
juror’s
other
City
Litten v.
Fargo,
mind or
influencing
emotions as
him to
(N.D. 1980);
Hospital Services, Inс. v.
assent to or dissent from the verdict or
Brackey, 283
(N.D.1979).
N.W.2d
indictment or concerning his mental
doing,
In so
attempt
give
meaning to
processes
therewith,
in connection
but a
every paragraph,
sentence, phrase, and
juror may testify
questions
on the
wheth-
word.
Bakken,
State ex rel. Olson v.
er
Rothe v. S-N-
was improperly brought
jury’s
at-
Stores, Inc.,
.872,
Go
tention,
any
whether
outside influence
1-02-38(2),
N.D.C.C. Statutes
improperly
brought
to bear
and rules are to be
in way
construed
any juror, or whether the verdict of the
useless,
which does not render them
jury was
arrived at
chance.
Nor
because the law
requires
neither does nor
his affidavit or
any
evidence of
state-
idle acts we will
not assume that
stat
concerning
ment
him
a matter about
ute or rule was intended to be useless
which
precluded
he would be
from testi-
*6
rhetoric.
Nordquist,
fying be received for
purposes.”
these
31-11-05(23),
Although in
Kerzmann
found it un N.D.C.C.
necessary under the facts of that case to
application
59(b)(2)
The
of Rule
provisions
59(b)(2)
reconcile the
of Rule
suggested
that is
by the trial
opin
court’s
606(b),
Rule
we did note thе existence of an
ion in this case would
portion
render that
incongruity, particularly
light
in
of the con
606(b)relating
of Rule
preju
to extraneous
placed upon
59(b)(2)
struction
Rule
in
dicial information and outside influence in
Werre,
Grenz v.
tion of
Grenz,
chance.
as characterized
in
presented
court, was: “[S]hould
Grenz
to Rule
in-
Explanatory
The
Note
verdict, by their
impeach their
permitted
with
the Rule is consistent
dicates
sought
to be
affidavits,
the facts
Turner,
intended to
and was
Grenz
in the verdict
inhere
shown
itself1.”
Dakota law at
comport
existing
with
North
[emрha
at 692
Grenz,
supra,
adoption:
the time of its
The
affidavits
Grenz
sis added].
(b)
existing
comports with
“Subdivision
had
to show
introduced
by prohibiting juror
Dakota law
North
plaintiff even
damages to the
awarded
the mental
testifying as
from
guilty
defendant
not find the
though it did
arriving
at a ver-
processes inherent
required by the
as
gross negligence,
allowing jurors to
as to
dict but
Thus,
at that time.
effect
guest statute
brought
influences were
whether outside
in the affida
sought to be shown
the facts
whether the
juror,
to bear
itself.
in the verdict
inhered
vits
byat
chance.
verdict wаs arrived
it
the intent of the
We do not believe
Werre,
N.W.2d 681
In
Grenz
the use of
prohibit
Grenz
Court, relying
(N.D.1964),
Supreme
which did not
establish facts
affidavits to
NDRCivP,
59(b)(2),
stated that
on Rule
The American Her-
inhere in the verdict.
show
jurors may
be used to
affidavits
Language
Dictionary
English
itage
at
verdict has been arrived
that a
or in-
as: “to be inherent
defines inhere
chance,
the mental
show
but
“existing
inherent as:
as
defines
nate” and
their
processes
or characteristic:
an essential constituent
Turner & Sons
verdict.
James
New In-
The
Third
intrinsic.”
Webster’s
Co.,
N.D.
Ry.
Great Northern
(1966) also defines
Dictionary
ternational
(1937),
Supreme
Court
85
prove facts which do not inhere
on the verdict or on their
davits to
individual deliber
See, e.g.,
the verdict.
ations.
Carson v. Polley, 689
562,
(5th Cir.1982);
F.2d
580-81
United
606(b)
Having concluded that Rule
autho-
Bruscino,
938,
(7th
v.
687
States
F.2d
941
showing juror
of an affidavit
mis-
rizes use
—
Cir.1982) (en banc),
denied,
cert.
U.S.
resulting
prejudicial
in extraneous
conduct
—,
—
1205,
446,
103 S.Ct.
75 L.Ed.2d
ruling
on
—,
1235,
U.S.
103 S.Ct.
75 L.Ed.2d
for new
we must next consider
motion
(1983);
Brooks,
468
United States v.
677
606(b)
scope
applied
of Rule
as
907,
(D.C.Cir.1982);
F.2d
912-13
United
Rule
instant case. The trial court held that
877,
Bagnariol,
States v.
665 F.2d
884-85
59(b)(2)prohibited
the affi-
consideration of
(9th Cir.1981),
denied,
962,
cert.
456
court,
U.S.
however,
in this case. The
davits
2040,
(1982);
102 S.Ct.
72
that,
L.Ed.2d 487
considering
even after
also stated
Bassler,
600,
United
v.
affidavits,
States
651 F.2d
603
agree
it could not
“that the ver-
(8th Cir.),
denied,
944,
cert.
454
arrived at
chance or the
U.S.
102
dict was
485,
(1981),
70 L.Ed.2d
any prejudicial
affecting
acts
S.Ct.
254
and 454
committed
1151,
1018,
102
verdict.”
U.S.
S.Ct.
Rule
606(b)
verbatim from Rule
of the Federal
the court determines from
Once
Therefore,
Rules of Evidence.3
prejudicial
the affidavits
construing
interpreting
consider cases
improperly
information has
reached the
Fed.R.Evid.,
606(b),
apply
Rule
as an aid in
improp
influence
jury or that outside
Manke,
ing
supra,
own Rule.
our
State
erly brought
upon any juror,
bear
Bagnariol, ously jurors a motion to have the denied (E.D.Pa. Poretti, F.Supp. v. scene. for this view the accident The basis Castello, 526 v. United States that at the intersec- denial was conditions (W.D.Tex.1981). In so F.Supp. changed tion between the time of the had possible the the court to consider doing, is accident and the time of trial. This lends hypothetical average on a prejudicial effect support to the that the further conclusion Cox, at supra, jury. v. State reports to jurors’ unauthorized views and Castello, 559; supra, 526 United States jurors prejudicial. the were other foregoing the Applying F.Supp. at 850. the view We also note that unauthorized case, in this con to the facts standard view. case was a “casual” this possibility reasonable that there is a clude Lynne the that he stated to other have information could that the extrinsic ways through the intersec drove “both hypothetical aver the verdict affected tion,” many that he “didn’t how and know jury. age opportunity do so.” others had had the affidavit, Larson, in her claims Juror There sеveral factors which he had Lynne that stated that there is a rea lead to our conclusion investigated the scene of the accident “so the in possibility that extraneous sonable report that he could what he found case could have affected this formation had These state those who hadn’t time.” hypothetical average jury. the verdict clearly Lynne’s ments indicate unau that the the particular fact that concern Of from view of the scene was far thorized related to what informatiоn casual, purpose and was conducted for the en perhaps essential issue in the was the reporting acquiring information and case, parked the truck tire the effect which Undoubtedly there will back to the of Keyes the of vision and had on line situations, particularly in commu rural of the intersec Amundson. The condition nities, where views of the accident scene the vision of drivers and line of the tion jurors are unavoidable. It is foreseeable Lynne case. ad crucial facts in this jurors may upon that be сalled to sit on he in his informed the mits affidavit cases the accident occurred at view of the intersec jurors, based his town, major in front intersection or even tion, “it would have been opinion his by jurors A casual view courthouse. oncom for Mrs. Amundson difficult however, inevitable; with such cases is the truck ing traffic whether would more, likely out it is not to affect or there were trees been there not because very A different situation is verdict. obstructing garbage cans the view.” and however, presented, when intention speсulate Amund- then went He on ally investigates acquire addi scene to further ob son’s view have been would reports and tional then his the accident at the time of because structed opinions jurors. findings and the other foliage 213; would more at that Barrett, there have been King supra, at Kinzle, in effect had a “wit time. defendants 148 Mont. P.2d Goff v. “testifying” in the ness” truck had no effect parked location in this case Finally, misconduct vision, that her on Amundson’s line of the case submitted to occurred after was by gar vision would have been оbstructed deliberated, and while the Keyes was unaware bage cans and trees. until the verdict was not discovered after time, there “testimony” of this at Thus, oppor- there was rendered. “testi opportunity to scrutinize the was no tunity attempt to “cure” the misconduct. “witness,” mony,” cross-examine before Had the misconduct discovered findings. rendered, his against trial court argument contend verdict Barrett, dire examina- could have conducted voir King See nature jurors to determine the tion of the (Iowa *9 information and careful- trial should granted because ly instructed the to decide the case misconduct. presented in
on the evidence
court. See
Cooperative
Electric Power
Basin
SAND, J., concurs.
Paulson,
Cox, supra,
until after the verdict had been opportunity
there was no to ameliorate the
prejudicial impact of the extraneous infor- Cox,
mation. supra. See State
Applying appropriate legal standards case, presented to the facts in this HENNEBRY, Michael J. Plaintiff conclude that misconduct occurred Appellant, (albeit innocently) which resulted extra- prejudicial neous HOY, jury, Robert possi- Appellee, and that there is a reasonable Defendant and bility that such information could have af- hypothetical fected the verdict of a average Cooke, We therefore conclude that the trial Donald Defendant. denying court abused its discretion in Civ. No. 10502.
motion for a new trial. Supreme Court of North Dakota. judgment, We vacate the reverse the or- der the motion for new Dec. remand for a new trial. WALLE, PEDERSON,
VANDE SAND, JJ.,
GIERKE and concur. WALLE, Justice,
YANDE concurring
specially.
I concur in majority opinion. But I opinion
do not believe the should be con-
strued as an losing parties invitation to
interview hope with the that one or
more of them have made a casual concerning
remark some
facet of the case not evidence for the
purpose obtaining a new trial because of majority opinion misconduct. The in-
dicates that once extraneous in-
formation improperly has reached the
the trial court must determine that possibility
there is a reasonable
extrinsic material could have affected the
verdict in order that a required. new trial is
I believe possibility” that “reasonable considerably more than a chance remote
that the extrinsic material affected the ver- and, estimation, my
dict approach should did,
a “probability” that material
fact, influence the verdict before a new