Lead Opinion
[¶ 1] Lаrry Kimball, Jr., appealed from a summary judgment dismissing his negligence claims against Justin Gram and Jack Landeis. We conclude Kimball’s claim against Landeis is barred by the statute of limitations, but Kimball has raised a genuine issue of material fact in his claim against Gram. We affirm in part, reverse in part, and remand.
I
[¶ 2] On February 17, 1995, Kimball and Landeis were seriously injured when snowmobiles they were operating were involved in a head-on collision. The accident occurred in a ditch adjacent to a county road near Grand Forks. Kimball and Landeis both suffered closed head injuries, and they have no recollection of the accident. Gram was the only other person present at the accident. According to Gram, he and Landeis were traveling east on their snowmobiles in the ditch on the north side of the road shortly after 1 a.m.
[¶ 3] In February 2001, Kimball individually served Gram and Jack Landeis with a summons and complaint, alleging they negligently caused his injuries. Jack Landeis answered, claiming insufficient service of process and denying liability. Landeis also cross-claimed against Gram and counterclaimed against Kimball. Lan-deis’s answer, cross-claim, and counterclaim did not refer to the guardianship. In July 2001, however, Landeis’s cross-claim and counterсlaim were dismissed by a stipulation of the parties, and that stipulation stated Landeis was acting through his guardian. This record also includes a separate February 12, 2001 complaint by Landeis, acting through his guardian, against Kimball and Gram, but the record does not reflect when, or if, that complaint was served on Kimball. In November 2001, Landeis moved to dismiss Kimball’s action, claiming insufficient service of process because Kimball had not served Lan-deis’s guardian. Gram also moved for summary judgment, claiming Kimball had failed to provide any evidence that Gram caused Kimball’s injuries.
[¶ 4] The trial court treated Landeis’s motion to dismiss as a motion to quash service, and the court quashed the service on Landeis. The court also granted Gram’s motion for summary judgment, concluding Kimball had failed to provide any competent evidence that Gram had any legal duty to protect Kimball from his injuries, or that Gram’s conduct in any way contributed to Khnball’s injuries. On January 24, 2002, Kimball personally served the summons and complaint on Landeis’s guardian. Landeis then moved for summary judgment, asserting . Kim-ball’s claim against him was barred by the statute of limitations. The court granted Landeis’s motion for summаry judgment, and Kimball appealed.
rf
[¶ 5] Summary judgment is a procedural device for promptly and expeditiously disposing of an action without a trial if either party is entitled to a judgment as a matter of law and if no dispute exists as to either the material facts or the reasonable inferences to be drawn from undisputed facts, or resolving the factual disputes will not alter the result. E.g. Van Valkenburg v. Paracelsus Healthcare Corp.,
Although the party seeking summary judgment has the burden of showing that there is no genuine issue of material fаct, the party resisting the motion may not simply rely upon the pleadings. Nor may the opposing party rely upon unsupported, conclusory allegations. The resisting party must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact and must, if appropriate, draw the court’s attention to relevant evidence in the record by setting out the page and line in depositions or other comparable documents containing testimony or evidence raising an issue of material fact.
*334 In summary judgment proceedings, neither the trial court nor the appellate court has any obligation, duty, or responsibility to search the record for evidence opposing the motion for summary judgment. The opposing party must also explain the connection between the factual assertions and the legal theories in the case, and cannot leave to the court the chore of divining what facts are relevant or why facts are relevant, let alone material, to the claim for relief.
Summary judgment is apprоpriate against a party who fails to establish the existence of a factual dispute on an essential element of his claim and on which he will bear the burden of proof at trial. Dahlberg v. Lutheran Soc. Servs.,
Ill
[¶ 6] Kimball argues the trial court erred in granting summary judgment on his negligence claim against Gram. The trial court decided Kimball had failed to provide any competent and admissible evidence that Gram had any legal duty to protect Kimball from his injuries, or that Gram’s conduct in any way contributed to Kimball’s injuries. Kimball argues he provided sufficient evidence to raise a genuine issue of material fact that Gram negligently operated his snowmobile on February 17, 1995, and that Gram’s negligence caused the accident. Kimball argues Gram had a duty to puh over earlier, or to warn Landeis about the danger, and Gram did neither, which resulted in insufficient time for Kimball and Landeis to see each other and avoid the collision.
[¶ 7] Actionable negligence consists of a duty on the part of an allegedly negligent person to protect the plaintiff from injury, a failure to discharge the duty, and a resulting injury proximately caused by the breach of the duty. Diegel v. City of West Fargo,
[¶ 8] We initially consider the evidence presented in Gram’s motion for summary judgment. Kimball’s complaint alleged
III. Gram was carelessly, recklessly, and negligently traveling the wrong way when prior to meeting Larry, he braked and pulled over to the right side to allow Larry to go by, however, because of Justin*335 “kicking up” snow, Larry’s and Jack’s visions were obstructed thereby preventing Larry from seeing Jack and Jack from seeing Lаrry.
[¶ 9] In support of his motion for summary judgment, Gram submitted answers to interrogatories by Kimball and Landeis in which they both stated they had no recollection of the accident. Gram also submitted his affidavit, which described the accident
6.As Jack Landeis and I were riding side by side in the ditch, we saw another snowmobile approaching from the east. We were going about 40 mph. I could see the approaching snowmobile from a long ways off. When I saw the other snowmobile approaching, I immediately slowed and pulled upon [sic] the side slope of the ditch. In fact, I went up onto the shoulder of the road so that one ski was on the shoulder and one ski on the slide [sic] slope of the ditch. At the same time, Jack Landeis slowed his snowmobile. The reason that I moved all the way to the top of the ditch was because there were 3 snowmobiles in it and I wanted to give the other two drivers as much room as I could. I recall the conditions that night and know that nothing I did obscured anyone’s vision. I moved up on [sic] to the shoulder of the road in plenty of time. It was a routine maneuver. My snowmobile was not creating any kind of “snow fog” or the like. I moved up the slope of the ditch and onto the shoulder of the road well before the accident. There was plenty of room in the ditch for the Plaintiff and Jack Landeis to pass by one another. I have attached copies of two photographs of the accident scene. While I did not take the photographs, I have examined them and they accurately illustrate the condition of the ditch at the time of the accident.
7. I did not actually see the collision. I looked down at the ditch a moment after it happened. The cоllision between the other two snowmobiles occurred to my left. I am aware that Jack Landeis slowed down from his original speed of about 40-50 mph but do not know how fast Plaintiff was going. At the time of the accident, Plaintiff was driving a Polaris 600XCR snowmobile. It is an aggressive, fast sled.
8. Jack Landeis was an experienced snowmobile rider. Plaintiff had begun riding snowmobiles about 2 years before the accident.
9. I have reviewed the description of the accident contained in paragraph 3 of Plaintiffs Complaint. It is inaccurate and it does not correctly describe hоw the accident occurred. My snowmobile was not “kicking up” snow. There was nothing that would have obstructed the vision of either the Plaintiff or Jack Landeis. In fact, I was never driving ahead of Jack Landeis; until I slowed and pulled up onto the shoulder of the road, Jack Landeis and I were driving side by side.
[¶ 10] In response to Gram’s motion for summary judgment, Kimball submitted an unsworn statement by Gram to Joe Whalen on April 6, 1995; an unsworn statement by Deputy Kelly McLean of the Grand Forks Sheriffs Department to A1 Kuhn; an affidavit of Kimball’s father; excerpts from Gram’s deposition; and an excerpt from North Dаkota All Terrain Vehicle & Snowmobile Laws as revised in November 1994 by the North Dakota Parks and Recreation Department.
[¶ 11] At the hearing on the motion for summary judgment, Gram submitted an excerpt from Kimball’s deposition; Kim-ball’s answers to interrogatories; and Kimball’s answers to requests for produc
[¶ 12] In Stewart v. Ryan,
[¶ 13] Here, Gram objected to the unsworn statements by Gram to Whalen and by Deputy McLean to Kuhn. The trial court said it relied on competent and admissiblе evidence to decide Gram’s motion for summary judgment. We conclude the unsworn statements submitted by Kimball were not affidavits or other comparable means for purposes of raising a disputed factual issue. Although Gram also claims Kimball’s father’s affidavit should not be considered because Kimball did not disclose that statement during discovery, this record does not reflect that the trial court specifically ruled on that issue. In the absence of a specific ruling on that issue, we conclude Kimball’s father’s affidavit may be considered to determine whether thеre are any disputed issues of material fact. We therefore consider the affidavits of Kimball’s father and Gram and the excerpt from Gram’s deposition in deciding this issue.
[¶ 14] Kimball’s father’s affidavit stated that Gram told Kimball’s father “Jack [Landeis] and [Gram] were traveling east in the ditch and that Jack [Landeis] was behind [Gram]. [Gram] said Larry [Kim-ball] went by him and that by the time he stopped and turned around, the accident had happened. [Gram] said he did not see the accident.” Gram’s affidavit and deposition indicates visibility was clear on the night of the accident and he was not aware of any condition that reduced the visibility. Gram stated he, Landeis, and Kimball had all activated the headlights on their snowmobiles. According to Gram, he and Lan-deis were driving their snowmobiles side by side between 40 and 50 miles per hour when Gram saw an approaching snowmobile from a “long ways off.” In his deposition, Gram stated he saw Kimball’s snowmobile about “a half mile off, or roughly several hundred yards.” Gram stated he immediately slowed down to approximately 30 miles per hour and pulled up on the side slope of the ditch. Gram stated he “did not actually see the collisiоn,” but he “looked down at the ditch a moment after it happened [and][t]he collision between the two other snowmobiles occurred to [his] left.” An exhibit attached to Gram’s deposition reflected the accident occurred immediately to Gram’s left.
[¶ 15] Gram and Landeis were driving their snowmobiles the wrong way in the ditch. See N.D.C.C. § 39-24-09(7). The violation of a statutory duty is evidence of negligence and not negligence per se. Ebach v. Ralston,
IV
[¶ 16] Kimball argues the trial court erred in granting summary judgment for Landeis on the ground that Kimball’s claim against Landeis was barred by the statute of limitations.
[¶ 17] Kimball concedes the statute of limitations for his claim against Landeis is six years. See N.D.C.C. § 28-01-16; Lang v. Barrios,
[¶ 18] Kimball personally served the summons and complaint on Landeis on February 6, 2001, but Kimball did not serve Landeis’s guardian then. This record reflects Landeis, through counsel but without his guardian, prepared an answer dated February 16, 2001, and a cross-claim and counterclaim dated February 17, 2001. The record also includes an affidavit of mailing stating Landeis’s answer, cross-claim, and counterclaim were mailed to Kimball on February 17, 2001. Landeis’s answer raised insufficient service of process under N.D.R.Civ.P. 12. In November 2001, Landeis moved to dismiss the action, claiming Kimball had not properly served him under N.D.R.Civ.P. 4(d)(2)(C). On January 7, 2002 the trial court quashed the service on Landeis because his guardian was not served in compliance with N.D.R.Civ.P. 4. On January 24, 2002, Kim-ball personally served the summons and complaint on Landeis’s guardian. Landeis then moved for summary judgment, and the trial court granted Landeis’s motiоn, concluding Kimball’s action was barred by the statute of limitations.
[¶ 19] Kimball argues his improper service was cured because Landeis had actual notice of the complaint and made a general appearance in the action.
[¶ 20] This Court has said that absent valid service of process, even actual knowledge of the existence of a lawsuit is insufficient to effectuate personal jurisdiction over a defendant. Helmers v. Sortino,
B
[¶ 21] Relying in part on N.D.C.C. § 28-01-38, Kimball argues Lan-deis’s codefendаnt, Gram, was properly served within the limitations period, which, coupled with Landeis’s actual notice of the action, precludes summary judgment dismissal of Kimball’s claim against Landeis.
[¶ 22] Kimball did not raise an issue about N.D.C.C. § 28-01-38 in the trial court and is precluded from raising it for the first time on appeal. Estate of Peterson,
C
[¶ 23] Kimball also argues the trial court erred in failing to apply the doctrine of equitable tolling. The trial court concluded equitable tolling did not apply because Kimball failed to establish reasonable and good faith conduct on his part.
[¶ 24] This Court has never adopted the doctrine of equitable tolling. See Reid v. Cuprum SA, de C. U.,
[¶ 25] In Reid,
[¶ 26] In Braaten,
[¶ 27] In Burr,
[¶ 28] Kimball claims he was not aware Landeis had a guardian and had no reason to believe Landeis was not competent. He claims he acted reasonably and in good faith when he served Landeis personally and did not serve the guardian until after the expiration of the statute of limitatiоns.
[¶ 29] Statutes of limitation protect important interests of certainty, accuracy, and repose, and equitable tolling is an exception to a statute of limitations, which should be used only in exceptional circumstances. Motley v. United States,
[¶ 30] Here, as in Reid,
[¶ 31] Landeis’s February 16, 2001 answer should have reflected the guardianship status, and we do not condone that failure. The order appointing Gayle Lan-deis as Jack Landeis’s guardian gave her “full” guardianship over legаl matters. Under the official comments to N.D.R.Prof. Conduct 1.14
where a legal representative has been appointed to act in behalf of the client, it should be kept in mind that the powers and duties of such representative vary depending upon the nature and extent of the client’s disability. The lawyer in the course of representing the client should be cognizant of the powers and duties conferred upon the client’s legal representative by the appointing authority as such enumeration of powers and duties will delineate what types of dеcisions the client may or may not make with regard to the client’s own care and well-being, or concerning management of the client’s property.
This record, however, reflects an affidavit of mailing of Landeis’s answer by counsel for Landeis on February 17, 2001, which was the day the statute of limitations expired. Under these circumstances, Lan-deis’s failure to identify the guardianship in his answer could not have affected Kim-ball’s failure to timely serve Landeis’s guardian.
[¶ 32] Moreover, this record also includes a separate complaint, dated February 12, 2001, by Laqdeis, thrоugh his guardian, against Gram and Kimball regarding the same accident, but this record does not reflect when, or if, that complaint was served on Kimball. The record is not clear about when Kimball actually learned about the guardianship. Landeis’s answer alleged insufficient service of process and raised a potential problem about service of process. The record reflects Kimball had actual knowledge of the guardianship at least by June 14, 2001, when his counsel stipulated to dismiss Landeis’s cross-claim and counterclaim in a stipulation that stated counsel for Landeis was acting for Lan-deis individually and for Gayle Landeis as his legal guardian. Despite that documentation in June 2001 and Landeis’s earlier answer, Kimball took no steps to serve Landeis’s guardian until January 24, 2002, after the trial court quashed service of the summons on Landeis. Kimball’s failure to demonstrate Landeis’s status could not have been ascertained by diligent inquiry, and his belated effort to serve Landeis’s guardian is not indicative of reasonable and good faith action.
[¶ 33] On this record, we conclude Kimball failed to establish reasonable and goоd faith action which would entitle him to equitable tolling. Under these circumstances, we conclude even if we were to adopt the doctrine of equitable tolling, Kimball has not met the requirements for application of the doctrine.
[¶ 34] We affirm in part, reverse in part, and remand for proceedings consistent with this opinion.
Dissenting Opinion
dissenting.
[¶ 36] I respectfully disagree with the majority. On the record presented to the trial court, I would affirm the grant of summary judgment. I do not agree reasonable persons could reach different conclusions as to the possibility that Gram’s actions caused the collision between Kim-ball and Landeis.