[¶ 1] M.M. and Thomas Moore appeal from a judgment dismissing their personal injury action against Fargo Public School District No. 1 (“District”) and Eugenia Hart. We conclude the district court erred in ruling the recreational use immunity statutes, N.D.C.C. ch. 53-08, barred this personal injury action against the District. We reverse and remand for a new trial.
I
[¶2] In May 2004, M.M. was a 15-year-old ninth grade student at Discovery Middle School in Fargo. Hart was M.M.’s
[¶ 3] During the 60s Day event in 2002, a former student, D.H., participated by performing a stunt , with his bike. Performing before an audience in the school’s auditorium, D.H. “jump[ed]” his bike from the auditorium stage to the floor 3⅜ to 4 feet below. D.H. broke the left crank off of the bike during the stunt, but he was not injured. D.H.’s stunt, as well as the other performances that day, were video recorded, and D.H. was later provided a video of his stunt. D.H. was a friend of M.M.’s classmate, J.B. D.H. showed the video to J.B., and J.B. made a copy. According to J.B., Hart showed a video of the 2002 performances in her classroom as an example of 60s Day activities. J.B. decided to do the same stunt and approached M.M. about accompanying him so there “would be two people going off the stage at the same time.” According to J.B., he asked Hart “if we could do the stunt, if we could ride our bikes off the stage and I didn’t get a yes or no answer.”
[¶ 4] On May 6, 2004, the day before 60s Day, J.B. and M.M. decided to practice the stunt after school in the school’s auditorium. They had not received formal permission from Hart or school administrators to either practice or perform the stunt. Classes adjourned for the day shortly before 3:30 p.m., and teachers and administrators typically remained at the school until approximately 4 p.m. for supervision purposes. According to Hart,-at approximately 3:30 p.m. she encountered M.M. who told her about the plans for the stunt, and she told him it was “not a good idea.” Hart then left the school to pick up her vehicle which had been serviced.
[¶ 5] The main entrance door to the auditorium was locked, but J.B. and M.M. found a side door to the auditorium which had been left ajar to accommodate the movement of instruments and equipment for a band concert scheduled that evening. Sometime between 3:45 p.m. and 4 p.m., J.B. and M.M. brought their bikes into the auditorium and removed chairs on the stage so they could practice their jumps. J.B. practiced first and successfully completed the stunt. However, M.M. crashed, striking his head on the floor of the auditorium, causing serious and permanent injuries. Thomas Moore testified that, after Hart was informed of the accident, she went to the hospital and told him she knew the boys were going to practice the jump, “she could have stopped it, should have stopped it, but did not and she took total responsibility for the incident.” Hart disputed Thomas Moore’s description of their conversation at the hospital.
[¶ 6] In May 2007, M.M. and his father, Thomas Moore, brought this personal injury action against the District and Hart. They claimed the District was liable for the negligent actions of Hart, its .employee, acting in the course of her employment. They also claimed Hart was separately and personally liable for M.M’s injuries. Before trial, the district court granted the District’s motion for summary judgment on the ground that the recreational use immunity statutes, N.D.C.C. ch. 53-08, shielded the District from any liability for the accident because it occurred on school property. The court further ruled no evidence had been presented to support a claim under the “willful and malicious” exception to recreational use immunity. The court granted Hart’s motion for summary judg
II
[¶ 7] M.M. and Thomas Moore argue the district court erred in ruling as a matter of law that the recreational use immunity statutes shielded the District from any liability in this case.
[¶ 8] Our standard of review for summary judgment is well-established.
“Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. A party moving for summary judgment has the burden of showing there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In determining whether summary judgment was appropriately granted, we must view the evidence in the light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences which can reasonably be drawn from the record. On appeal, this Court decides whether the information available to the district court precluded the existence of a genuine issue of material fact and entitled the moving party to judgment as a matter of law. Whether the district court properly granted summary judgment is a question of law which we review de novo on the entire record.”
Lucas v. Riverside Park Condominiums Unit Owners Ass’n,
[¶ 9] “Under North Dakota law for premises liability, general negligence principles govern a landowner’s duty of care to persons who are not trespassers on the premises.”
Schmidt v. Gateway Community Fellowship,
“Each political subdivision is liable for money damages for injuries when the injuries are proximately caused by the negligence or wrongful act or omission of any employee acting within the scope of the employee’s employment or office under circumstances in which the employee would be personally liable to a claimant in accordance with the laws of this state, or injury caused from some condition or use of tangible property, real or personal, under circumstances in which the political subdivision, if a private person, would be liable to the claimant.”
Section 32-12.1-03(1), N.D.C.C., “provides two separate and independent grounds upon which a political subdivision can be held liable for injuries: (1) a political subdivision can be liable for injuries caused by some condition or use of property in the same manner as a private person, and (2) a political subdivision can be liable for injuries caused by the negligence or wrongful act or omission of an employee acting with
[¶ 10] The recreational use immunity statutes, N.D.C.C. ch. 58-08, provide an exception to political subdivision liability under N.D.C.C. § 32-12.1-03(1). Section 53-08-02, N.D.C.C., provides that “an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.” Section 53-08-03, N.D.C.C., further states:
“Subject to the provisions of section 53-08-05, an owner of land who either directly or indirectly invites or permits without charge any person to use such property for recreational purposes does not thereby:
1. Extend any assurance that the premises are safe for any purpose;
2. Confer upon such persons the legal status of an invitee or licensee to whom a duty of care is owed; or
3. Assume responsibility for or incur liability for any injury to person or property caused by an act or omission of such persons.”
For purposes of N.D.C.C. ch. 53-08, “[l]and” is defined as including “all public and private land, roads, water, watercourses, and ways and buildings, structures, and machinery or equipment thereon.” N.D.C.C. § 53-08-01(2). An “[o]wner” is defined as including a “tenant, lessee, occupant, or person in control of the premises.” N.D.C.C. § 53-08-01(3). “Recreational purposes” are broadly defined as including “any activity engaged in for the purpose of exercise, relaxation, pleasure, or education.” N.D.C.C. § 53-08-01(4). However, N.D.C.C. ch. 53-08 “does not limit in any way any liability that otherwise exists for ... [wjillful and malicious failure to guard or warn against a dangerous condition, use, structure, or activity.” N.D.C.C. § 53-08-05(1). Therefore, unless a political subdivision, through its employees, has committed a “[wjillful and malicious failure to guard or warn against a dangerous condition, use, structure, or activity,”
id.,
“the political subdivision is not liable for injuries to a nonpaying recreational user of the property.”
Fastow,
[¶ 11] In this case, the district court concluded that the location of the accident, Discovery Middle School, fell within the definition of “land” in N.D.C.C. § 53-08-01(2); that M.M.’s practice jump was for an educational purpose, the school-related 60s Day, and consequently qualified as a “recreational purpose[]” under N.D.C.C. § 53-08-01(4); and that the recreational use immunity statutes therefore shielded the District from liability except for a “[wjillful and malicious failure to guard or warn against a dangerous condition, use, structure, or activity” under N.D.C.C. § 53-08-05(1). The court concluded M.M. and Thomas Moore had presented no evidence that Hart, the District, or any of its agents or employees acted willfully and maliciously. The court also rejected M.M. and Thomas Moore’s argument that their claims based on negligent supervision are separate and distinct and not subject to recreational use immunity because the “alleged negligent or wrongful acts of Hart all relate to [M.M.’s] use of the property.”
[¶ 12] “This Court must ‘harmonize statutes to avoid conflicts between them.’ ”
In re Midgett,
“The interpretation of a statute is a question of law. Baukol Builders, Inc. v. County of Grand Forks,2008 ND 116 , ¶ 22,751 N.W.2d 191 . This Court’s primary objective in interpreting a statute is to ascertain legislative intent. Id. Words of a statute are given their plain, ordinary, and commonly understood meaning unless a contrary intention plainly appears. N.D.C.C. § 1-02-02. Statutes are construed as a whole and are harmonized to give meaning to related provisions. N.D.C.C. § 1-02-07. If the language of a statute is clear and unambiguous, ‘the letter of [the statute] is not to be disregarded under the pretext of pursuing its spirit.’ N.D.C.C. § 1-02-05. If the language of a statute is ambiguous, however, a court may resort to extrinsic aids to interpret the statute. N.D.C.C. § 1-02-39. Statutes must be construed to avoid absurd and ludicrous results. County of Stutsman v. State Historical Soc’y,371 N.W.2d 321 , 325 (N.D.1985).”
[¶ 13] A majority of this Court has said that “ ‘[t]he proper analysis in deciding whether to apply the recreational use immunity statutes must include consideration of the location and nature of the injured person’s conduct when the injury occurs.’ ”
Kappenman,
[¶ 14] Since their enactment in 1965, the recreational use immunity statutes have been intended “to encourage landowners to open their land for recreational purposes by giving them immunity from suit under certain circumstances.”
Schmidt,
[¶ 15] Article VIII, § 2 of the North Dakota Constitution directs the Legislature to “provide for a uniform system of free public schools throughout the state,” and the Legislature has done so. See N.D.C.C. § 15.1-06-01. The Legislature has provided for the length of the school calendar, see N.D.C.C. § 15.1-06-04, and for curriculum and testing requirements. See N.D.C.C. ch. 15.1-21. The Legislature has imposed health, safety, and sanitation requirements on schools and has imposed inspection requirements. See N.D.C.C. §§ 15.1-06-09, 15.1-06-10, 15.1-06-11, 15.1-06-12 and 15.1-06-13. The statutory scheme emphasizes that “education of students” is a school’s overriding purpose. N.D.C.C. § 15.1-06-14. Children, through the compulsory school attendance laws, are required to attend an approved school, see N.D.C.C. §§ 15.1-20-01 and 15.1-20-02, and persons having responsibility for children are subject to penalties if they fail to ensure a child’s attendance. See N.D.C.C. § 15.1-20-03. This Court has also approved the following statement of duties schools owe their students:
“A school must exercise ordinary care to keep its premises and facilities in reasonably safe condition for use of minors who foreseeably will make use of premises and facilities.
“Schools are under a duty to insure the safety of their students during playground activities as well as a duty to properly maintain the premises.
“The school owes to its children to exercise such care of them as a parent of ordinary prudence would observe in a comparable circumstance.
“The duty of care owed a child is greater than that owed an adult against unreasonable risk of injury. The standard of care used in dealing with adults, however, is not considered adequate for those entrusted with the care of children. The degree of due care increases with the immaturity of the child.
“While an adult is held to the standard of a reasonable ■ man an infant is held to a standard of care which would be exercised by the ordinarily prudent child of his own age, capacity, intelligence and experience. Negligence, as applied to a minor child, is the doing of that which an ordinarily prudent person of the age, intelligence, experience and capacity of such child would not do under the same or similar circumstances, or the failure to do that which such a person would do under the same or similar circumstances.”
Besette v. Enderlin Sch. Dist. No. 22,
[¶ 16] Numerous courts have refused to apply recreational use immunity statutes to bar suits against school districts brought by students injured on school grounds during the school day. For example, in
Bauer v. Minidoka Sch. Dist. No. 331,
“Here, Tregg was a public school student participating in a game being played at school as the school day was getting underway. Tregg was not merely a recreational user of the school premises, he was there as a student entitled to the protection of the district. This relationship is crucial to our decision in holding that the recreational use statute does not apply to this case.
“As Justice Spear said in dissenting in Murphy v. Pocatello School District #25,94 Idaho 32 , 42,480 P.2d 878 , 888 (1971): ‘The role of the state to children in school is a parental one often being described as one in loco parentis.’ The relationship of a student to a school district is exemplified by the statutory duty that the board of trustees of a school district has ‘[t]o protect the morals and health of the pupils.’ I.C. § 33-512(4) (Supp. 1988). In another context this Court has noted that school districts are required to adopt safety rules and regulations concerning the transportation of pupils to school ‘to impact primarily upon the safety and adequate protection of the pupils.’ Quincy v. Joint School Dist. No. 41,102 Idaho 764 , 766,640 P.2d 304 , 306 (1981). This special relationship that a student has to a school district would be substantially impaired if the recreational use statute were applied to injuries children suffered while on school premises as students. Students would then bear the risk of defects in school premises.
“Tregg was not the type of recreational user contemplated in the recreational use statute. He was a public school student who came to school early before classes began to play football with his classmates. If he had come to the school grounds to play a game of football that was not organized or sanctioned by the school on a day when school was not in session, we would have no trouble in applying the statute to limit the liability of the district. Nor would we have any difficulty in applying the statute, if he had come to the school grounds on a school day to play a game of football that was not organized or sanctioned by the school before the faculty and other students who were not involved in the game began arriving. The problem we have in applying the recreational use statute to these facts is that Tregg arrived to play football at the very time that the school was beginning its operations for the day, although no classes had begun. He was not just a member of “the public” referred to in the recreational use statute. He was there as a student to begin the school day with a game of football. Some students may come early to talk to their teachers, some to visit with their classmates, some to study and others to participate in informal activities such as football. All of these are legitimate activities within the scope of a student’s special relationship with the school.
“It would be entirely artificial to apply the recreational use statute to activities of students up to the moment the first bell rings and classes begin. No purpose would be served by drawing this line for application of the recreational use statute. When the principal is present, some faculty members are on duty and students have arrived, the school day has begun and the recreational use statute has no application to a student who is injured on the school grounds.”
Bauer, at 338-39.
[¶ 17] Other courts have come to similar conclusions.
See, e.g., McIntosh v. Omaha Pub. Sch.,
[¶ 18] When harmonizing N.D.C.C. § 32-12.1-03 and N.D.C.C. ch. 53-08, we agree with those courts that refuse to apply recreational use immunity statutes to bar suits by students injured on school grounds during the school day. As in
Kappenman,
[¶ 19] We conclude the district court erred as a matter of law in ruling the recreational use immunity statutes barred M.M. and Thomas Moore’s personal injury action against the District. Because the District can be liable under the doctrine of respondeat superior for Hart’s “alleged negligence, wrongful act, or omission ... occurring within the scope of [her] employment” under N.D.C.C. § 32-12.1-04(1),
see Binstock v. Fort Yates Pub. Sch. Dist. No. 4,
Ill
[¶ 20] M.M. and Thomas Moore argue the district court erred in granting partial summary judgment against them dismissing a factual allegation in their complaint that Hart had “suggested that [M.M.] and others could perform for a required classroom skit by imitating the daredevil actions of Evel Knievel through use of a bicycle.” The district court granted summary judgment dismissal of this factual allegation because M.M. and Thomas Moore “presented absolutely no evidence that Hart suggested [M.M.] jump his bicycle from the stage to the floor.”
[¶ 21] Hart’s motion is more properly described as a motion in limine to prohibit the introduction of evidence relating to Hart’s alleged “suggestion],” rather than a partial summary judgment motion to dismiss factual allegations in a complaint. Parsing the factual allegations in a complaint through summary judgment proceedings is inappropriate in a negligence case because “ ‘[w]hether a certain act or failure to act is negligence depends upon the facts and circumstances of each particular case.’ ”
Kreidt v. Burlington N. R.R.,
[¶ 22] The district court appears to have based its decision on the lack of evidence that Hart affirmatively stated the students could perform the bike stunt. However, the word “suggest” is defined as “to mention
or imply
as a possibility.”
Merriam Webster’s Collegiate Dictionary
1249 (11th ed. 2003) (emphasis added). “Imply” is defined as “to involve or indicate by inference, association, or necessary consequence rather than by direct statement.”
Id.
at 624. A person can “suggest” without making a statement. Here, M.M. and Thomas Moore unsuccessfully attempted to introduce evidence that Hart had given prior approval to D.H. to perform the bike stunt in 2002, that D.H. had rehearsed in the auditorium the day of his performance and that a video of the 2002 performance was shown in Hart’s history class as an example of what could be done as part of 60s Day activities. This evidence, as well as other evidence that was excluded, certainly could be viewed as implying the bike stunt was a permissible
IV
[¶ 23] We consider issues raised that are likely to arise on remand.
See Grager v. Schudar,
[¶ 24] “Jury instructions must fairly inform the jury of the applicable law.”
Erickson v. Brown,
[¶ 25] M.M. and Thomas Moore requested that the terms “willful misconduct” and “wanton act” be defined separately, and offered an instruction on “willful misconduct” based on NDJI — Civil C-2.12 and on “wanton act” based on a Colorado court decision and Black’s Law Dictionary. Instead, the district court defined the terms together:
“ Willfull and wanton misconduct’ requires knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another; an ability to avoid the resulting harm by ordinary care and diligence in the means at hand; and the omission of such care and diligence to avert threatened danger when to an ordinary person it must be apparent that the result would likely prove disastrous to another. Willfull and wanton actions are reckless, heedless, malicious; characterized by extreme recklessness or foolhardiness; recklessly disregardful of the rights or safety of others or of consequences.”
[¶ 26] The district court’s instruction is essentially taken verbatim from this Court’s definition of “[w]illful and wanton actions” in
Smith v. Kulig,
[¶ 27] Although M.M. and Thomas Moore claim the district court failed to instruct the jury that the duty of care to a child is higher than the duty of care to an adult as outlined in
Besette,
V
[¶ 28] In view of our disposition of this case, it is unnecessary to address the other issues raised. We reverse the judgment and remand for a new trial.