The Supreme Court of North Dakota has reversed the finding of a lower court, which had applied the state’s recreational use immunity statutes in dismissing a personal injury action against a school district.
The lawsuit was brought by a 15-year-old student, M.M., and his father, Thomas Moore against the Fargo Public School District No. 1 and one of its administrators, Eugenia Hart.
In May 2004, M.M. was a 15-year-old ninth grade student at Discovery Middle School in Fargo. Hart was M.M.’s history teacher. As part of the curriculum for Hart’s history class, students could participate in 60s Day, which was the culmination of a unit of study on the decade of the 1960s. Begun by Hart as an annual event in the late 1990s, 60s Day was scheduled for May 7, 2004.
A former student, D.H., was an indirect friend of the plaintiff. At a previous 60s day, he had performed a stunt with his bike. The stunt consisted of jumping a bike from the auditorium stage to the floor 3 1/2 to 4 feet below. The stunt had been taped. Hart showed a video of the 2002 performances in her classroom as an example of 60s Day activities. M.M. and a friend, J.B. decided they would try the same stunt.
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. According to Hart, at approximately 3:30 p.m. she encountered M.M. who told her about the plans for the stunt. She told him it was not “a good idea.” Hart then left the school to pick up her vehicle, which had been serviced.
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. J.B. practiced first, and completed the stunt successfully. 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.
In May 2007, the plaintiffs sued, claiming 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 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 judgment in part, concluding there was no evidence to support the factual allegation contained in M.M. and Thomas Moore’s complaint that Hart “suggested” M.M. perform the bike stunt as part of the 60s Day activities. However, the court denied Hart’s summary judgment motion in part, concluding a question of fact existed concerning the complaint’s factual allegation that Hart failed to prevent M.M. from practicing the stunt. The jury returned a verdict finding Hart did not commit gross negligence, recklessness, or willful or wanton misconduct, and the court dismissed the action in its entirety.
That decision was appealed.
In reversing the lower court’s finding for the school district, the appeals court wrote that the judge “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, 463 N.W.2d 837, 842 (N.D. 1990), we reverse the summary judgment and remand for trial against the District.”
Turning to the partial grant of summary judgment for Hart, the appeals court noted that 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 activity for 60s Day. We conclude the district court erred in granting Hart’s motion. We reverse the judgment and remand for further proceedings against Hart.”
M.M. and Thomas Moore v. Fargo Public School District No. 1 and Eugenia Hart; Sup.Ct. North Dakota; No. 20090121; 6/10.10
Attorneys of Record: (for plaintiffs and appellants) Michael W. Unger (argued), Minneapolis, Minn., and Craig E. Johnson (appeared), Fargo, N.D. (for defendant and appellee) Ronald H. McLean (argued) and Jane L. Dynes (on brief), Fargo, N.D.; for defendant and appellee Fargo Public School District No. 1. Michael Geiermann, Bismarck.
