Victory Park Apartments, Inc. v. Axelson

ERICKSTAD, dаmages C.J., MESCHKE, claim for Burich’s that because WALLE, JJ., GIERKE and VANDE con- pleaded in contract was not for breach cur. is from action it barred the foreclosure present action as a

being raised

compulsory counterclaim NDRCivP

13(a). disagree. We 13(a) purpose of NDRCivP promote judicial economy by prevent

is to

ing multiplicity of actions and to achieve single disputes in a of all resolution lawsuit APARTMENTS, INC., PARK VICTORY arising out of common matters. Southern Appellee, Plaintiff and States, 57, v. United 371 U.S. Constr. Co. L.Ed.2d 31 83 S.Ct. Rule AXELSON, Defendant 13(a) particularly against directed one Appellant. who fails to assert a counterclaim in one action and then institutes a second action Civ. No. 10731.

which that counterclaim becomes the basis Supreme Court North Dakota. Co., complaint. Southern Constr. supra.6 April In this instance Burich did not initi Rather,

ate the second action the note. multiple against

the Bank instituted actions argues

Burich it now all arise out of

the same transaction or We occurrence. persuaded

are not that Burich’s claim discourage piecemeal

should barred to

litigation instigated by Burich.

Nor did Burich’s claim for breach

of contract arise out of the same transac subject

tion that was the matter of the

Bank’s foreclosure suit. The foreclosure mortgage

action concerned the real estate mortgage

and Burich’s failure to make the

payments. present The substance of the $2,000 subsequent

action is the note. The separate

two are transactions and occur originate

rences which do not from the subject

same matter. Therefore Burich’s

claim for breach contract is not barred 13(a) as a compulsory NDRCivP coun Cf.,

terclaim. Leo Lumber Co. v. Wil

liams, is affirmed. 13(a) interpreting counterpart. 6. North Dakota Rule of Civil Procedure casé law the federal adopted Gruebele, (N.D. from a similar federal rule and Gruebele v. construing therefore when guided by the rule this court is gives great deference to federal apartment morning later in the sitting couch, but she was not Doris,

smoking. Debra, and Melvin then apartment left and returned to the lounge cleaning. to resume Several hours lаter, approximately p.m., at the fire was apartment. discovered in Doris’s Victory Park commenced this action against damages building. Doris for to its Valley ‍‌​‌‌‌​​​‌‌‌‌​​‌‌​‌‌​​‌‌​‌​‌‌​‌​‌​​​​‌​​​​​​​‌​​​‍City chief, At George fire Schlittenhardt, opinion testified that in his living the fire started in the room sofa and by cigarette. was caused The trial court Tenneson, Holman, Serkland, Maureen negligence, instructed the res Marcil, Lundberg, Fargo, Erickson & loquitur, and a tenant’s standard of care plaintiff appellee. and for the conduct of others. The re- Brakke, Brantner, Vogel, Jon R. Kel- finding turned its negligent verdict Doris Knutson, ly, Bye, Fargo, for de- Weir & awarding $9,414 Victory and Park in dam- appellant. fendant and ages. judgment The court еntered on the verdict, judgment and Doris moved for not- WALLE, VANDE Justice. withstanding or, in verdict the alterna- tive, for a new trial. The motion was de- appeals Doris Axelson from a district appeals nied. Doris now to this court from judgment holding court her liable to Victo- judgment denying and from the order Park), ry Apartments, (Victory Park Inc. post-trial her motion.1 fire, damages caused a and from an denying order her motion for not- Doris raises numerous alleging issues er- withstanding the verdict. We reverse and ror in court admission of evidence remand for a new trial. given and the instructions jury. to the We conclude that the court committed re- 24, February On a fire occurred error versible when it instructed the аpartment building by Victory an owned ipsa loquitur on res under the facts of this damage Park. The primarily was confined Having case. determined that remand for apartment to the rented to Doris Axelson. necessary, a new trial is we will also con- evening fire, On the prior to the sider additional may issues which arise worked lounge until 1 a.m. at the which she again on retrial. owns in Valley City. She returned to her apartment Thompson, with Melvin an em- LOQUITUR I. RES IPSA ployee lounge. slept at the Melvin couch living apartment room of the Negligence must affirmatively be early morning, and rose Sunday, proved, the next presumed and will not merely be to clean lounge. Sometime after Mel- from the occurrence of the accident or dam left, vin daughter, Doris and her ages. Debra Equipment, Northwestern Inc. v. Axelson, drank ciga- Cudmore, coffee and smoked W. rettes apartment. Keeton, at the kitchen table in the Prosser & W. Law 242 Torts Melvin (5th testified that he when returned to necessary, ed. It is not how- filed, however, temporary peal Doris has also filed a motion for it divested the district remand to the trial court to allow the court an jurisdiction objections court of to rule on the to opportunity objections Victory to rule on her Libi, (N.D.1983). costs. v. Buzzell Park's statement of costs and disbursements. reversing Because we are on the merits and appeal When Doris filed her notice of on June remanding temporary for new remand 15, 1984, previously objections she had filed her to the trial court for its decision on Doris’s pending taxation of costs and that matter was objections unnecessary. to costs is ap- before the trial court. When the notice of Fischbach-Moore, Inc., supra; ever, always eyewitness an Farmers that there be may Negligence conduct. the defendant’s Home Insurance Mutual Co. Grand proved by circumstantial evidence. Co., be Implement Forks 79 N.D. Fischbach-Moore, Inc., 178 Foerster v. (1952). Although in each of ipsa loqui- The res N.W.2d rejected application those cases we encompasses one form of cir- tur doctrine doctrine, particular we did so on the facts Cyr evidence.2 v. Green cumstantial presented, ipsa not on the basis that res Vt., Corp., Power 485 A.2d Mountain loquitur applicable is never in a fire case. Keeton, (1984); Prosser W. Law see W. & It is not the occurrence of a mere fire but Torts, supra, at 243. the circumstances under which the fire State, applied originated spread may give res

As rise loquitur the fact-finder to draw an application ipsa loquitur. allows of res Foer inference that the defendant’s conduct was Fischbach-Moore, Inc., supra. ster v. If negligent following if the foundational partiсular the circumstances of a case evi (1) proved: the accident was one facts are facts, requisite dence foundational res ordinarily which does not occur the ab loquitur may apply. (2) negligence; instrumentality sence of Having ipsa loquitur concluded that res plaintiff’s injury was in which caused the may applied appro- in a fire case under defendant; control of the exclusive priate circumstances, we further conclude (3) voluntary there was no action or contri that this is not such a case. After a care- plaintiff.3 bution on Foer record, ful review of the we conclude that Fischbach-Moore, Inc., supra. stеr presented there was insufficient evidence order to have the court instruct on res from which the could find that Doris loquitur, plaintiff present proba the must had “exclusive control” of the instrumen- jury could tive evidence from which the tality injury which the in this case. caused required find each of the foundational facts. Victory Park the asserts that “instru mentality” injury in which caused the this ipsa loquitur Doris asserts that res apartment, case was either the couch or the applied involving can never be a case which were in the exclusive control of Dor fire, neg because fires often occur without apartment. is as the tenant of the We occasions, ligеnce. atOn least three this disagree. Victory Park relies on Olswan application court has addressed the of res Funk, 201, ger Tenn.App. v. 63 470 S.W.2d ipsa loquitur in fire cases. See Bismarck Industries, (1970), Baptist Appeals 13 in which the Court of of Church Wiedemann Inc., 201 N.W.2d 434 Foerster Tennessee indicated that the defendant’s doctrine, Although ipsa loquitur wrongful labeled a res lish lack of conduct on his own See, principle ipsa loquitur may applied. is not a rule of substantive law but is a before res E.g., Gordon, e.g., Montgomery of evidence. Northwestern National Insur Co. v. 619 Elevator Corp., (Colo. 1980); Quarries ance Co. v. Raid Briggerman, 249 P.2d 66 Mileur v. 110 (Iowa 1977); Joseph Hospital 721, 443, Arterburn v. St. & Ill.App.3d 66 Ill.Dec. 442 N.E.2d 1356 Center, 57, 223, Rehabilitation 220 Kan. 551 P.2d 886 (1982); Mengerhausen, Cramer v. 275 Or. Dаniels, (1976); (La. Richards v. 430 So.2d 779 (1976); Cyr Mountain 550 P.2d 740 v. Green Curtis, Ct.App.1983); Corbett v. 225 A.2d 402 Vt., (1984); Corp., A.2d Turten Power 485 ‍‌​‌‌‌​​​‌‌‌‌​​‌‌​‌‌​​‌‌​‌​‌‌​‌​‌​​​​‌​​​​​​​‌​​​‍1265 (Me. 1967); (Mo. Tygett, Swan v. 669 S.W.2d 590 Co., Casualty Surety v. Aetna & Wis.2d wald 55 Prosser, Ct.App.1984); see also The Procedural 659, (1972); Prange 201 N.W.2d 1 Turk v. H.C. 241, Ipsa Loquitur, Res 20 Minn.L.Rev. Co., 547, (1963); Effect of see 18 Wis.2d (1936). 257-258 Keeton, W. Torts 254 also W. Prosser & (5th Law of interesting dialogue ed. For an on 3. No issue has been raised as the effect of the Supreme Colorado Court's resolution of the the Legislature’s adoption comparative negli- of issue, (1982) see Colo.L.Rev. 777 and 52 53 gence ipsa loquitur. the on third element of res (1981). Colo.L.Rev. 565 Numerous courts which have been faced with case, that In this there has been no claim adoption compa- have held issue that the Victory negligently. We Park acted therefore negligence respective rative abrogated in their States has unnecessary today. find it to resolve this issue requirement plaintiff the that estab-

160 yond of the couch in which negligence exclusive control the all doubt air, satisfy sufficient to necessary fire started was the it is still bring it home element of res “exclusive control” lo- to the defendant. purpose ‘The of this question logic requirement of a quitur. We rule is to link the defendant with permit probability, an inference of already established, which would that gence merely to arise from the negligently defendant’s the accident was caused.’ object in which the plaintiff control over fire On this too the has the burden originated originated. or the it proof by preponderance area where of the evi- rule, already dence; any The far better which we have and in case where it is clear Fischbach-Moore, embraced in equally Foerster that it is probable at least that Inc., supra, negligence another, 178 N.W.2d at is that “the was that of ‘thing’ ‘instrumentality’ which caused court plain- must direct the required the fire ... to be under the tiff has not established a case.” W. [Emphasis control of Keeton, the defendant.” add- Torts, Prosser & W. Law su- pra, at 248. ed.] [Footnotes omitted.] Sterner, See also Marathon Oil Co. v. 632 Victory theory Park’s of the fire is (Tex.1982); S.W.2d Neis v. National negligently cigarеtte that a smoked was Markets, Super Inc., (Mo. 631 S.W.2d 690 dropped couch, between the cushions of the Ct.App.1982); Riesing, Samson v. period where it smoldered for a of time and Wis.2d eventually ignited the couch. It is clear “thing” reviewing that After “instrumentality” the record in this case purpose which for the determining caused the fire under those circum the correct- ness of the cigarette, ipsa loquitur, stances was the not instruction on res the couch or we are satisfied apartment. Little, equally See was Smith probable Debra, S.W.2d Melvin or rather (Tex.Ct.App.1981) than [flammable Doris, responsible was liquid negligently spilled carpet, which not carpet, cigarette. smoked Thе record discloses instrumentality fire]; that caused Oli smokers; that all three were Hutson, that Doris (Tex.Civ. ver v. 596 S.W.2d 628 and Debra each cigarette smoked a App.1980) at the [cigarette dropped chair, into morning; kitchen table that residence, Melvin instrumentality slept night; that, on the couch that and Thus, caused in order for the in fire]. when Melvin cleaning returned from the struction on ipsa loquitur given, res to be it lounge, Doris was on the couch but was not was upon Victory incumbent Park to smoking. This is all of the evidence which present evidence jury from which the could presented to negli- establish that Doris determine that Doris had exclusive control gently cigarette smoked a on the couch. cigarette over the ignited which the fire. jury speculate was left to as to which best, At Victory Park’s evidence created an of cigarette the three smoked ques- the in inference persons that one of the three Although, words, tion. in Prosser’s there present apartment in morning the that had “negligence air,” is Victory Park has control over offending cigarette; the be bring negligence failed to the “home” to yond that, jury the speculate was left to as Doris. to which of the three was the offending party. Other courts faced with similar fact situ- ations have reached like conclusion. See Professor succinctly Prosser has stated Hutson, suрra; Oliver v. Fireman’s Fund requirement the that the evidence must American Companies Insurance link the offending defendant with the in- Knobbe, 93 Nev. 562 P.2d 825 strumentality: “It enough is never plaintiff for the to We hold Victory that Park failed to prove merely plaintiff present probative has been evidence which would al- injured by negligence the of jury someone low the to determine that Doris had though unidentified. Even there is be- cigarette ques- exclusive control of the in speculate Victory to the report to as Park contends that jury was left tion. The 803(8)(iii), was admissible under Rule N.D. persons been in control had of three which R.Ev., provides, pertinent part, which instrumentality. offending Under the of publiс “setting that records forth ... factu- circumstances, in- it was error these findings resulting investigation from al an loquitur,4 ipsa res and we jury the on struct pursuant authority granted by made for a and remand reverse the law, unless sources the of information or new trial. lack of other circumstances indicate trust- this ease must Having determined worthiness,” by not the are excluded hear- for a and remanded new be reversed say rule. this of portion Because Rule by the issues raised we will consider those 803(8) a of adoption is verbatim Rule likely again are to arise parties which 803(8)(C) Evidence, of the Federal Rules of retrial. legislative history look to of we the the interpretive rule Federal Federal case guidance in interpreting for our own law II. EVIDENTIARY ISSUES Manke, rule. State v. Report Police Admission of A. that the trial court erred asserts face, 803(8)(iii) its Rule allows admis- On police report pre- admitting into evidence a reports sion of which set forth “factual the Detective Bernard Kracht of pared by ‍‌​‌‌‌​​​‌‌‌‌​​‌‌​‌‌​​‌‌​‌​‌‌​‌​‌​​​​‌​​​​​​​‌​​​‍findings resulting investigation from an Valley Department. This re- City granted Police pursuant authority made interrogation of port regard- summarized Kracht’s law.” There has been much debate morning Thompson ing opinions after the whether and evaluative conclu- Melvin encompassed phrase the sions are within fire. jury may alleged be the the res is a directive to trial courts that the 4. Doris also has form of ipsa loquitur ipsa Al- loquitur instruction was erroneous. even if instructed on res other though unnecessary disposition absolutely of this issue injury possible not causes are light loquitur holding ipsa res our that no eliminated the evidence. If the evidence is given, will should have been we instruction briefly jury such that the must decide which two on the form of the instruction comment proximate cause more causes the given by trial the court. may plaintiffs injury, jury the be instruct- The trial court instructed apply ipsa loquitur may if that res ed gence ‘‘presumed” if the three founda- could injury to be one finds cause Perhaps is a result tional faсts were found. By including responsible. it the defendant was Baptist Church reference Bismarck instruction, ipsa loquitur how- of a res Industries, Inc., 201 Wiedemann N.W.2d ever, finding prox- could be misled into (N.D.1972), where this court referred to res ipsa loquitur. by applying Res imate cause res loquitur raising presumption. Un- a rebuttable application proximate loquitur no has N.D.R.Ev., 301(a), presumption der shifts Rule dispense require- with cause does against proof party whom burden of to the on which the ment that act or omission is directed. liability predicated is defendant’s established ipsa loquitur of Res does not shift the burden plaintiff's injury. proximate of as the cause the Laskowski, proof. v. Wasem Only prоximate been established after cause has Mann's, (N.D.1979); Bergley v. ipsa loquitur to raise an infer- is res available Rather, application of doctrine the negligence. of Farmers Home Mutual In- ence merely permissible of raises a inference Co., Implement Co. v. Grand Forks surance jury reject. gence accept which the is free to or 177, (1952). Mann’s, N.D. 55 N.W.2d Laskowski, Bergley supra; Wasem given may con- as also have The instruction supra. control. the on the issue of exclusive fused The sentence of the trial court’s instruc- last ipsa loquitur “It was that res states: is not neces- Because the instructed tion on res sary possible though possible apply of an accident must loquitur may that all causes even other eliminated, apply.” be eliminated in order for this rule to Although injury of had not been causes the often in this statement is included erroneously jury may believed it could have the opinions, appellate that court we do believe loquitur even Doris liable under res hold though it was the unnecessary have been instructed that should equally likely the had it that fire other causes. to eliminate other cause. resulted from some merely principle aids court in The stated the determining give It whether the instruction. See, e.g., Baker, In findings.” patrol- J. Wein stant case is obvious. “factual Berger, M. Evidence man recorded his оf stein & Weinstein’s observations the scene Grant, (1984); accident, The 11803(8)[03] by Trustwor of the a statement the driver involved, the Public Records one of the thiness Standard vehicles and the Hearsay Exception, 12 Reports W.St. patrolman’s plaintiff’s conclusion that car 53, Many 81-85 of the gone through light. U.L.Rev. had a red Thus the discussing this issue have com been report (the cases findings contained fact-based Binder, Hearsay piled measurements, in D. Handbook locations, physi- vehicle (2d ed. 187-194 markings) cal as well as the officer’s evalu- proceeded ative conclusion that one car had case, report in police The this how through light. report a red in ever, summary merely of Detective case, however, findings contains no such or interrogation Thomp of Melvin Kracht’s officer; investigating conclusions of the report in Nearly every sentence son. summary Thompson’s is a of Melvin inter- begins “I asked him ...” or “He with rogation. any Kracht did not record find- apparent report that the said....” It is ings or conclusions drawn from his investi- findings, fact-based evalu does not contain gation interrogation Thompson. conclusions, opinions police ative interpretation Even under the liberal officer. Baker, findings” “factual embodied Victory relies on our decision in Park report simply this case does not fall Manke, supra, support its cоn- State 803(8)(iii) within the Rule exclusion. We report tention that the is admissible under police report conclude that was not 803(8)(iii). Manke, Rule we noted four 803(8)(iii). admissible under Rule considered in factors which will be deter- mining report whether a lacks trustworthi- However, Testimony B.

ness or is unreliable. those four Kracht’s Statements applied only Thompson factors are to be to assess Made Melvin trustworthiness it is determined that after testify, Detective Kracht was allowed to 803(8)(iii). report falls within Rule If objection, over about statements made report qualifies under the rule it is not Thompson day Melvin after the fire. admissible; automatically opposing par- testifying regarding In addition Thоmp- ty challenge can its trustworthiness and police son’s statements included in the re- reliability, adopted and the four factors in port, Kracht also testified Thompson applied. Victory are then Manke Park’s frequently had stated that Doris smoked on reliance on the four Manke factors is mis- slept the couch if she had there. placed, light report fact this case does not meet the initial criteria hearsay character of this testi 803(8)(iii).5 of Rule mony Victory is obvious. Park does not

Victory upon attempt Park also relies to show Baker v. that these statements fell (6th Corp., exception rule, hearsay Elcona Homes 588 F.2d 551 within an to the but Cir.1978), denied, argues any admitting cert. 441 U.S. error in 99 rather (1979), S.Ct. 60 L.Ed.2d 661 in which them was harmless. Because we are re police report, manding the court held includ for a new we not deter need ing patrolman’s plain conclusion that or not mine whether the error was harm gone through light, permit tiff’s car had a red less. It was error to Kracht 803(8)(C), testify regarding by under Rule admissible F.R.Ev. the statements made Thompson. The distinction Baker and the in- between Manke, regarding findings resulting investiga- there was no issue raised "factual tion," from an 803(8)(iii). applicability report 803(8)(iii) the of Rule The and therefore satisfied the Rule "rape in that case contained the results of a kit" requirement has been met in this which not analysis by a with thе chemist State Laborato- case. Department. report clearly ries contained

163 past We have stated that an the Blanket Exclusion C. permitted express expert will not be an the trial court erred asserts that Doris if opinion the facts and circumstances dis into evidence a blanket refusing to admit may by closed the evidence are such that it on the back she claims was capable be assumed that alleged fire. Doris day couch on understanding arriving them and at its own supports of the blanket that the condition Suko, conclusion. v. 98 Fisher N.W.2d 895 fire did not start on her contention (N.D.1959). decided Fisher was before to admit The trial court refused the couch. adoption of our Rules of Evidence in 1977. blanket, apparently it had been because expert testimony gov Admission is now after the fire and therefore washed erned Rule N.D.R.Ev.: as it immedi- in the same condition not technical, scientific, spe- “If or other the fire. ately after knowledge the trier of cialized will assist prerequisite for admission It is a fact to understand the evidence or to issue, the article quali- evidence that determine a fact a witness of demonstrative skill, substantially expert by knowledge, the same con fied as an object education, experience, training, may at the time in issue. Gle dition as it was (N.D. testify opinion in the form of аn thereto Thompson, 154 N.W.2d son v. 1967). or otherwise.” or exclusion of de The admission sound evidence is within the monstrative expert The determination to admit court, and will not be discretion of the trial testimony under Rule 702 rests within the an appeal on absent abuse disturbed court, sound discretion of the trial and its Berger, discretion. ‍‌​‌‌‌​​​‌‌‌‌​​‌‌​‌‌​​‌‌​‌​‌‌​‌​‌​​​​‌​​​​​​​‌​​​‍v. that State ap determination will not be disturbed on (N.D.1979); Lange, State peal unless the court has abused its discre (N.D.1977); Gleson v. 255 N.W.2d Sebelius, tion. Patch v. conclude that the Thompson, supra. We (N.D.1984); Railroad South National its discretion trial court did not abuse (N.D. Corp., 290 N.W.2d 819 Passenger refusing admit the into evidence. blanket for the trial court to Thus it was inter

determine whether Schlittenhardt’s cir pretation analysis and of the facts and Expert Testimony D. on Cause of assist the trier of fact. cumstances would Fire that his testimo The trial court determined The trial court allowed Chief Schlitten- fact, upon a ny the trier of and would aid in his testify, objection, over that hardt conclude that the of the record we review in the couch and opinion the fire started its discretion. court did not abuse cigarette. From the was caused there was also contends that based appears record it that Schlittenhardt inadequate basis for Schlittenhardt’s cigarette had caused an his conclusion that a held, however, that the ashtray opinion. We have presence of an upon the fire an of a basis for weakness or non-existence upon couch and the fact a table near the credibility, goes to his and expert’s opinion apartment was a that the tenant of the admissibility of the necessarily to the factors not parties point to other smoker. considered, v. North Dakota opinion evidence. Dodds may have which Schlittenhardt Commissioner, Highway Thompson’s statements State including Melvin v. Er Feuerherm he N.W.2d 165 lying Doris was on the couch when telt, Credibili lounge morning and returned from the fact for the trier of ty is a matter occasionally [Dodds smoked on the couch that she Highway Commis Dakota State slept Doris contends that North if she there. sioner, was entitled supra and presented which re- there were no facts ] testimony as opinion give interpretation analysis, Schlittenhardt’s quired expert weight felt as little inadequate founda- much or that there was an it was conclude opinion. deserved. We tional basis for Schlittenhardt’s opinion solely by eliminating to admit Schlittenhardt’s tes- to find causation error oth- cause of the fire.6 timony possible effect, plaintiff er causes. would be alleviated of his burden of III. INSTRUCTIONS JURY presenting evidence from which the jury could infer that it was the defendant’s con- A. Cause Proximate injury. duct which caused his court, The trial as of its instruction cause, jury instructed the proximate difficulty allowing proof in follows: solely by causation disproving possi other fire, proximate cause of the “As to the presupposes ble causes is that this required that it is not the evidence ex- possible there is a finite number of causes origin possibility clude all of another any given injury. apparent, for It is how undisputed; that it it is sufficient if be ever, impossi that most cases it will be and circumstance all the facts [sic] disprove every ble to other conceivable fairly evidence warrant conclusion injury. Certainly cause of an the facts in originate that the fire did not from some give plethora this case rise tо a veritable Thus, origin other cause. of a fire possible leading up scenarios to the fire. generally sufficiently has been held es- plaintiff may possible not choose a few by inferences from tablished drawn cir- causes, them, attempt disprove and on cumstantial evidence. Proof of causa- possi that basis alone claim that one other may sufficiently proven by pro- tion be a ble cause has proxi been established as the cess of elimination of other causes.” plaintiff, having mate cause. The the bur that this instruction contends errone- issue, proof present den of on this must ously jury employ process allowed some affirmative evidence that the defend proximate of elimination to arrive at the injury ant’s conduct caused the to allow the cause of the fire. jury to find that the proximately defendant plaintiff’s injury. caused the The instruc previously We have held that tion in this case misstated the “proximate law and may proved by cause could jury have misled the on the issue of if circumstances of a case such circum cause, proximate permit stances we therefore con a reasonable inference of a giving clude that the injury cause of for which the defendant instruction was responsible, error. and at the same time exclude

equally reasonable inferences of other causes for which the defendant is not re B. Liability Tenant Conduct sponsible.” Ehli, Leno v. 339 N.W.2d Others (N.D.1983); Baptist see also Bismarck 47-16-13.2(6), N.D.C.C., provides Section Industries, Inc., Church v. Wiedemann dwelling that a tenant of a residential shall Farmers “deliberately destroy, or negligently de- Home Mutual Insurance Co. Grand face, damage, impair, any part or remove Implement Co., Forks 79 N.D. premises knowingly permit any requires This person to do so.” The trial court instruct- some presented affirmative evidence be jury ed the as follows: from may infer injury resulted from a cause for which the LIABILITY “TENANT’S FOR DAMAGE responsible, defendant was in addition to TO RENTAL PROPERTY evidence which excludes other causes, support “A finding proximate apartment tenant of an or resi- cause. given dwelling Under the instruction dential fi- North Dakota is case, however, nancially responsible would if be free she has Upon again opinion testimony. remand the trial court will have to tenhardt's See Patch v. Se determine, upon belius, (N.D. 1984). the facts and circumstances as retrial, presented upon whether to admit Schlit- prem- any portion of the duct. Webster’s Third New International damaged gently addition, financially Dictionary “permit” defines she is re- relevant ises. permits part express- anoth- as follows: “1: to consent to knowingly sponsible if she ALLOW, negligently damage ly formally person to ... TOLERATE er Giving AUTHORIZE.” premises. ...2: ... “permit” plain, ordinary meaning, term its duty to his or her “A tenant owes 47-16-13.2, conclude that N.D. we Section negligent- deliberately or landlord not to C.C., tenant, in requires that the addition to damage any part of the ly destroy or having knowledge being aware permit knowingly premises leased or to to, conduct, wrongful have consented must any to do so. other individual authorized, allowed, or otherwise ac- quiesced in such conduct.7 PERMIT “KNOWINGLY “ require We conclude that the trial court’s in- ‘Knowingly permit’ does not regarding liability knowledge consent to structions a tenant’s for proof of actual and parties third erroneous. negligent person action. A know- the conduct of was if, something ingly permits under circumstances, adequate reasons she had IV. VERDICT SPECIAL grounds to know of that action.” and The trial court submitted the case to the contends that the court’s instruc- special special on a verdict. The ver- erroneously “knowingly per-

tion defined relating questions dict included to Doris’s requiring only mit” that the tenant have negligence, but the trial court refused person’s “reason to know” of a third questions regarding include conduct, wrongful than actual rather negligence of Melvin or Debra. Doris con- agree. knowledge of such conduct. We that, presented evidence tends because might support finding Every used in a statute is word Debra, gence part of Melvin or given plain, ordinary, and common to be its refusing neg- court erred in to submit their 1-02-02, meaning. ly understood Section special ligence to the verdict. N.D.C.C.; State, Rheaume v. 339 N.W.2d Henke, County Morton special verdicts is Submission (N.D.1981). Webster’s 49(a), governed N.D.R.Civ.P.8 The by Rule Dictionary defines Third New International has discretion over the trial court broad “knowingly” as “in a relevant questions scope nature and of written sub knowing manner with awareness.” ... appellate review is jury, mitted to the Giving “knowingly” plain, the term its ordi determining there was limited to whether nary meaning, we conclude that Section Ray of discretion. Ardoin v. J. an abuse 47-16-13.2, N.D.C.C., imposes responsibili (5th Co., 684 F.2d 335 Cir. McDermott & ty persons of third on tenants for conduct 1982); Bank v. Fire Progressive Central only where the tenant has actual knowl Co., 658 F.2d 377 Insurance man’s Fund edge wrongful or is aware of the conduct. (5th Cir.1981). court’s exercise of The trial necessity upon based is of

Doris also contends that the effect this discretion presented during the ignore which is of the trial court’s instruction is to the evidence emerge. There “permit.” imposes the issues which the word statute trial fore, it would serve no responsibility only knowingly if we conclude that the tenant review the trial wrongful purpose eon- at this time to permits person’s the third 47-16-13.2, N.D.C.C., 49(a) adopted adopted from the 8. Because our Rule 7. Section rule, corresponding frоm the Landlord and we will look to in- Uniform Residential ‍‌​‌‌‌​​​‌‌‌‌​​‌‌​‌‌​​‌‌​‌​‌‌​‌​‌​​​​‌​​​​​​​‌​​​‍Federal any to locate guidance Tenant Act. We have been unable terpretive con- Federal case law jurisdictions Manke, cases from other which have struing See State v. our rule. adopted the Uniform Act construe the term "knowingly permit," legislative history nor is the point. enlightening of Section 47-16-13.2 on this court’s determination this issue at the conclusion to overturn the court’s refusal first inasmuch as we are remanding to enter notwithstanding the ver- for a new trial. state of the evidence dict. case, Under the circumstances of this undoubtedly and issues will be somewhat where the was incorrectly instructed retrial,, different on and it is for the trial on res loquitur, appropriate it is to court on the basis of the record on retrial remand the case for a new trial before a initially exercise its discretion in deter- new proper with instructions. We whether, mining form, and in what to sub- conclude that the trial court did not err in special mit a verdict. denying the motion judgment notwith- standing the verdict. DENIAL V. OF MOTION FOR JUDG- judgment is reversed and the cause MENT NOTWITHSTANDING THE is remanded to the district court for a new VERDICT trial in opinion. accordance with this After Doris made a motion for judgment verdict, notwithstanding the ERICKSTAD, C.J., GIERKE, J., con- alleging that the evidence was insufficient cur. support the verdict. The court denied motion, appealed and Doris has from Surrogate Justice partici- PEDERSON denying the order the motion. pated in this case assignment pursuant A judgment court should enter § 27-17-03, N.D.C.C. notwithstanding only the verdict where the that, evidence weighing is such without SAND, Justice PAUL M. who died on credibility of witnesses or otherwise consid 8, 1984, December was a member of this ering evidence, weight reason court at the time submitted; this case was able men could reach but one conclusion as Levine, JJ., Meschke and being not mem- to the verdict. Unlimited, Roberts v. Hail time, bers at that participate. did not (N.D.1984). Only if the PEDERSON, Surrogate Justice, concur- trial court determines that the evidence ring specially. present does question not of fact for the moving is the party judg entitled to agree I must be re- ment on the merits as a matter of law. versed and the case remanded for a new Okken, Okken (N.D. trial and I concur in most of the statements 1982); South v. National Railroad Pas of the law written Justice VandeWalle. senger Corp., I agree retrial, do not upon In determining if the evidence is sufficient police report that contains no factual find- fact, create an issue of the trial court ings should be excluded though even employ must rigorous standard with a might appear to be inadmissible when eval- view preserving toward verdicts. Okken v. 803(8)(iii). uated under Rule That rule Okken, supra. The evidence must be merely does apply. viewed in light most favorable to the non-moving party Riebe, [Riebe

N.W.2d 175 (N.D.1977)] and the court accept

must the truth of the evidence

presented by the non-moving party and the

truth of all reasonable inferences from that support

evidence which the verdict [Okken Okken, supra].

Although we have concluded that

the evidence was satisfy insufficient to

“exclusive control” element of res lo-

quitur, we unwilling are to extend that

Case Details

Case Name: Victory Park Apartments, Inc. v. Axelson

Court Name: North Dakota Supreme Court

Date Published: Apr 24, 1985

Citation: 367 N.W.2d 155

Docket Number: Civ. 10731

Court Abbreviation: N.D.