Duane Schroeder and Lynae Schroeder, parents of Brooke Schroeder, and Lynae Schroeder as Personal Representative of the Estate of Brooke Schroeder, v. State of North Dakota,
No. 20190374
IN THE SUPREME COURT STATE OF NORTH DAKOTA
Filed 07/22/2020
2020 ND 167
2020 ND 167
Duane Schroeder and Lynae Schroeder, parents of Brooke Schroeder, and Lynae Schroeder as Personal Representative of the Estate of Brooke Schroeder, Plaintiffs and Appellants
v.
State of North Dakota, Defendant and Appellee
No. 20190374
Appeal from the District Court of Barnes County, Southeast Judicial District, the Honorable Mark T. Blumer, Judge.
AFFIRMED.
Opinion of the Court by Tufte, Justice.
Jason R. Vendsel (argued) and Rheider W. McCormick (on brief), Minot, N.D., for plaintiffs and appellants.
James E. Nicolai, Deputy Solicitor General, Office of the Attorney General, Bismarck, N.D., for defendant and appellee.
Schroeder v. State
No. 20190374
[¶1] Duane and Lynae Schroeder, parents of Brooke Schroeder, and Lynae Schroeder, as personal representative of the Estate of Brooke Schroeder, appeal from a summary judgment dismissing their action against the State of North Dakota related to a car accident, which resulted in their daughter‘s death. The Schroeders argue the district court erred in granting summary judgment and determining their claims were precluded because the State was immune from liability under statutory public duty and snow and ice immunities. We conclude the district court properly determined statutory immunity precluded the Schroeders’ claims. We affirm.
I
[¶2] On January 8, 2017, Brooke Schroeder was driving a vehicle eastbound on Interstate 94 in Barnes County. Before crossing an overpass at 109th Avenue Southeast, the vehicle drifted out of the eastbound passing lane, hit a snowbank adjacent to the guardrail on the overpass, and vaulted over the guardrail. Brooke Schroeder was injured in the accident and died.
[¶3] The Schroeders sued the State for economic and non-economic damages, alleging the State‘s negligence or gross negligence in performing its winter road maintenance and snow removal obligations caused the accident, Brooke Schroeder‘s injuries, and ultimately her death. They claimed the snowbank adjacent to the guardrail eliminated any safety or protection
[¶4] The State moved for summary judgment, arguing various immunities apply, including the public duty and snow and ice immunities under
[¶5] After a hearing, the district court granted the State‘s motion. The court ruled the facts were “not effectively in dispute.” The court concluded the State has a public duty to maintain the highway system, the performance of the duty to keep the highways in good and safe condition is an act for which the State may not be held liable under
Either: (1) the accident was caused by plowing of the snow and chemicals off the road onto the shoulder where it formed into the hardened snowbank, in which case the State (and employees) are immune as clearing the roadways [is] a public duty; or (2) the accident was caused by a negligent omission by the State in failing to remove the condition caused by the performance of that duty, in which case the snow and ice immunity applies because the danger was not created by an “affirmative” act, but rather the failure to do an act to remove the danger. It is perhaps more appropriate to state that the allegedly negligent act which led to the accident was the failure to clear the guardrail. In either case, the State is immune.
The court concluded the State was immune to liability under any viable theory of liability presented. Judgment was entered dismissing the Schroeders’ complaint with prejudice.
II
[¶6] Our standard for reviewing summary judgments is well-established:
Summary judgment is a procedural device under
N.D.R.Civ.P. 56(c) for promptly resolving 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. The party seeking summary judgment must demonstrate there are no genuine issues of material fact and the case is appropriate for judgment as a matter of law. In deciding whether the district court appropriately granted summary judgment, we view the evidence in the light most favorable to the opposing party, giving that party the benefit of all favorable inferences which can reasonably be drawn from the record. A party opposing a motion for summary judgment cannot simply rely on the pleadings or on unsupported conclusory allegations. Rather, a party opposinga summary judgment motion must present competent admissible evidence by affidavit or other comparable means that raises an issue of material fact and must, if appropriate, draw the court‘s attention to relevant evidence in the record raising an issue of material fact. When reasonable persons can reach only one conclusion from the evidence, a question of fact may become a matter of law for the court to decide. A district court‘s decision on summary judgment is a question of law that we review de novo on the record.
Devore v. Am. Eagle Energy Corp., 2020 ND 23, ¶ 10, 937 N.W.2d 503 (quoting Brock v. Price, 2019 ND 240, ¶ 10, 934 N.W.2d 5). Generally, negligence actions involve questions of fact and are inappropriate for summary judgment. Bjerk v. Anderson, 2018 ND 124, ¶ 10, 911 N.W.2d 343. “Issues of fact may become issues of law if reasonable persons could reach only one conclusion from the facts.” Id. (quoting APM, LLLP v. TCI Ins. Agency, Inc., 2016 ND 66, ¶ 8, 877 N.W.2d 34).
[¶7] Under
f. A claim relating to injury directly or indirectly caused by the performance or nonperformance of a public duty, including:
(1) Inspecting, licensing, approving, mitigating, warning, abating, or failing to so act regarding compliance with or the violation of any law, rule, regulation, or any condition affecting health or safety.
(2) Enforcing, monitoring, or failing to enforce or monitor conditions of sentencing, parole, probation, or juvenile supervision.
(3) Providing or failing to provide law enforcement services in the ordinary course of a state‘s law enforcement operations.
...
i. A claim resulting from snow or ice conditions, water, or debris on a highway or on a public sidewalk that does not abut a state-owned building or parking lot, except when the condition is affirmatively caused by the negligent act of a state employee.
[¶8] Statutory interpretation is a question of law, which is fully reviewable on appeal. Baker v. Autos, Inc., 2019 ND 82, ¶ 10, 924 N.W.2d 441. The primary objective in interpreting a statute is to determine the legislature‘s intent. Id. We give words their plain, ordinary, and commonly understood meaning, unless specifically defined or contrary intention plainly appears.
A
[¶9] The Schroeders argue public duty immunity under
[¶10] The plain language of
[¶11]
[¶12] The Schroeders claim the public duty immunity should apply only when the public entity has a unique duty to the general public and it should not apply if that duty is the same for every person under the law. Citing Fast v. State, 2004 ND 111, 680 N.W.2d 265, the Schroeders claim every person has a duty to avoid creating unreasonably dangerous hazards and a duty to use reasonable care in their activities, these duties are not unique to the State, everyone is liable for snow removal that creates an unreasonably dangerous hazardous condition, and therefore the public duty immunity does not apply.
[¶13] Under
[¶14] In Fast, the plaintiffs brought a negligence action against the State, alleging negligence for failing to properly remove snow and ice accumulations from the sidewalk on a college campus and failing to warn individuals of the hazardous condition. Fast, 2004 ND 111, ¶ 3, 680 N.W.2d 265. The plaintiffs claimed the State was liable because it was aware water pooled in a low area of the sidewalk and froze, which created a dangerous situation. Id. at ¶ 12. This Court affirmed the summary judgment dismissal, holding there was no evidence in the record from which a reasonable fact finder could find the State liable. Id. We noted
[¶15] This case is different from Fast. This Court noted in Fast that the parties were not relying upon the statutory snow and ice immunity. Fast, 2004 ND 111, ¶ 12, 680 N.W.2d 265; see also
B
[¶16] The Schroeders argue the district court erred in determining the snow and ice immunity applies and precludes their claims. They contend there is an exception to the immunity if the snow or ice condition is caused by an affirmative negligent act of a State employee and there are genuine issues of material fact about whether the State was negligent in creating the snowbank adjacent to the guardrail and also in failing to remove the snowbank. The Schroeders claim the evidence was undisputed that the State‘s actions created the snowbank, and there was evidence from which reasonable inferences could be made that the State could have removed the snowbank as it initially plowed the road, that the snowbank was not hard, and that the State had the ability to easily remove the snowbank.
[¶17]
[¶18] The record includes evidence about the Department‘s policies at the time of the accident related to plowing and snow removal. Undisputed evidence established Department policy is for the plow operators to prioritize and focus first on clearing the lanes, shoulders, and ramps; after that
[¶19] Viewing the evidence in the light most favorable to the Schroeders, evidence exists that the snowbank was created at least in part through the Department‘s plowing activities. The record contains deposition testimony from Keith Nelson, the Department‘s district supervisor to the plow crew responsible for the area of the interstate where the accident occurred. He testified about the weather conditions prior to the accident, the Department‘s plowing operation, and how the snowbank was formed along the guardrail. Nelson testified there was a freezing rain and ice event on December 25 and 26, which was about two weeks before the accident; it rained first and then snowed and there were high, straight-line winds; a slush was created on the road, and the Department employees continued plowing the road to keep the main roadway clear; the snow was plowed into the guardrail as it fell, mixing with the slush, and the mixture hardened and formed ice once temperatures cooled. He also testified there were significant snow events between January 1 and 3, with about ten inches of snow on January 1 and an additional ten inches of snow between January 2 and 3. He testified there were smaller amounts of snow that fell each day on January 4, 5, and 6. He further testified that there were colder temperatures and strong winds during this period, including straight-line winds, which caused drifting and filling in of the lighter snow. [¶20] Nelson testified the snowbank consisted mostly of ice and was created through the Department‘s process of sanding and using brine on the roadway during weather events prior to the accident. He testified that with the series of snow events before the accident, at some point the plow operators could not keep up and the snowbank became compacted. Nelson testified Department employees were unable to remove the snowbank once it was created because it was made mostly out of ice, the ice was pushed in between the wood posts and the metal guardrail, and the guardrail would have been damaged or destroyed by removing the ice. Nelson testified the snowbank adjacent to the guardrail was hard, it could not be moved, and his plow operators told him they did not dare plow it any further because their plows were starting to catch on the snowbank. He testified that when a snowplow catches on a snowbank it can break the plow‘s wing, it can turn the plow sideways and send it through the guardrail, and it can destroy the guardrail.
[¶21] Nelson testified they did not use a bulldozer to clear the snowbank because they do not use a bulldozer on the road, they would have had to close the adjacent lane of the interstate and go backwards against the flow of traffic, and he did not believe it could be done without damaging
[¶23] Furthermore, the negligent act must affirmatively cause the condition. The failure to act—in this case the Schroeders contend the failure to remove the snowbank was the negligent act—is not an affirmative act. An affirmative act is one “[i]nvolving or requiring effort.” Black‘s Law Dictionary, 73 (11th ed. 2019). The failure to remove the snowbank was not an affirmative act that caused the condition.
[¶24] Minnesota has a similar snow and ice immunity statute, which provides the State is not liable for “a loss caused by snow or ice conditions on a highway ... except when the condition is affirmatively caused by the negligent acts of a state employee[.]”
[¶25] In Norlander v. Norman‘s Bar, 1999 WL 118628 (Minn. Ct. App. 1999), the court considered whether the Minnesota statutory ice and snow immunity applied in facts very similar to those in this case. In Norlander, the driver of a vehicle died after the vehicle jumped a bridge rail on an interstate exit ramp. Id. at 1. The bridge rail was partially covered by a snowbank formed by snowplow operators. Id. at 2. The court noted state procedures call for the removal of snow and ice from
[¶26] In Hennes v. Patterson, 443 N.W.2d 198 (Minn. Ct. App. 1989), the court also held ice and snow immunity applied and precluded liability. On December 20, 1983, a passenger in a car was killed and others were injured when the driver lost control of the car on a bridge and the car “rocketed” up a pile of snow packed against the guardrail and went over the side of the bridge. Id. at 200. The court held the State was immune from liability. Id. at 204. The court said there was no evidence the snowbank along the guardrail was created by a negligent act of plowing the road, the plowing was done pursuant to state policy, and therefore the State was immune from liability under the snow and ice immunity for plowing the snow off the road and against the guardrail. Id. at 203. The court also considered whether the State was negligent in failing to remove the snowbank, and the court concluded the State was immune under discretionary function immunity because the decision not to remove the snowbank was made pursuant to state policies based on the considerations of the public‘s safety, limited equipment and workers, budget, and safety concerns for workers. Id. The court held “the decision not to remove the snowbank along the bridge guardrail on the weekend was done pursuant to a policy which balanced several factors, and is therefore the type of decision which is immune from liability under the discretion function exception.” Id. at 204.
[¶27] Looking at the evidence in the light most favorable to the Schroeders, the evidence does not raise a genuine issue of material fact that the snow or ice condition was affirmatively caused by a State employee‘s negligent act. The snow and ice immunity applies and precludes the Schroeders’ claim. We conclude the district court did not err in granting summary judgment.
III
[¶28] We affirm the judgment.
[¶29]
Jerod E. Tufte
Lisa Fair McEvers
Gerald W. VandeWalle
Daniel J. Crothers
Jon J. Jensen, C.J.