Schloesser v. LarsonAnnotate this Case
458 N.W.2d 257 (1990)
Lynn L. SCHLOESSER, Plaintiff, v. Donald and Joyce LARSON, d/b/a Nova Management, Defendants, Third Party Plaintiffs and Appellants, v. Robert REETZ, Robert Ehli, and Dion Ehlis, individually, and in their capacity as employees of the State of North Dakota by and through the North Dakota Boiler Inspection Department of the North Dakota Workers Compensation Bureau, Third Party Defendants and Appellees.
Civ. No. 890202.
Supreme Court of North Dakota.
July 3, 1990.
*258 Fleck, Mather, Strutz & Mayer, P.C., Bismarck, for defendants, third-party plaintiffs and appellants; argued by Curtis L. Wike, Bismarck.
John J. Fox (argued), Asst. Atty. Gen., N.D. State Hosp., Jamestown, for third-party defendants and appellees.
Donald and Joyce Larson, d/b/a Nova Management (the Larsons) appealed from a summary judgment dismissing their third-party complaint against Robert Reetz, Robert Ehli, and Dion Ehlis, individually, and in their capacity as state employees of the North Dakota Boiler Inspection Department of the North Dakota Workers Compensation Bureau (the Boiler Inspectors). We affirm.
The Larsons owned an apartment building in Bismarck that was destroyed by fire on January 27, 1988. Lynn Schloesser, a tenant in the building, sued the Larsons for damage to his personal property and additional expenses incurred as a result of the fire. The Larsons then filed a third-party complaint against the Boiler Inspectors asserting that the fire, which began in the boiler room of the apartment building, was caused by the improper installation of the boiler on combustible flooring and that the Boiler Inspectors "were negligent in failing to observe and report the improper installation of the boiler." The Larsons sought contribution or indemnity from the Boiler Inspectors for any judgment awarded in favor of Schloesser against the Larsons.
On a motion for summary judgment dismissal the trial court concluded that the Larsons' action against the Boiler Inspectors in their capacity as state employees was barred by the doctrine of sovereign immunity. The court also concluded that the Larsons' action against the Boiler Inspectors, individually, was barred because there was no allegation of conduct which could be found to constitute gross negligence and, therefore, under Section 32-12.1-15(2), N.D.C.C., the Boiler Inspectors, as state employees, could not be held personally liable.
On appeal the Larsons urge this court to abolish the doctrine of sovereign immunity, at least with respect to the circumstances of this case where the Boiler Inspectors allegedly were engaged in proprietary or ministerial functions in conducting boiler inspections. Art. I, § 9, of the North Dakota Constitution, provides in relevant part that "[s]uits may be brought against the state in such manner, in such courts, and in such cases, as the legislative assembly may, by law, direct." We have consistently construed this provision as investing the Legislature with the power to modify or waive the State's sovereign immunity from suit, and we have held that no suit may be maintained against the State *259 unless the Legislature authorizes it. Dickinson Public School District v. Sanstead, 425 N.W.2d 906 (N.D.1988); Senger v. Hulstrand Construction, Inc., 320 N.W.2d 507 (N.D.1982). We refuse to invade the Legislature's domain on this issue, and, accordingly, we decline the Larsons' invitation to abrogate the State's sovereign immunity in this case.
The Larsons assert that application of the doctrine of sovereign immunity is a violation of their federal and state constitutional rights to procedural and substantive due process, to a legal remedy, and to receive just compensation for a public taking of their property. The Larsons have failed to cite any persuasive authority for the proposition that application of the doctrine of sovereign immunity violates constitutional guarantees. We are unpersuaded that the application of the doctrine in this case violates the Larsons' rights under the federal or state constitutions.
The Larsons also assert that sovereign immunity has been waived in this case, because Section 65-01-12, N.D.C.C., operates as a consent to be sued by the Boiler Inspectors and because the requirement that the State Boiler Inspector obtain a bond under Section 65-12-13, N.D.C.C., constitutes the acquisition of insurance and consequential waiver of sovereign immunity.
Section 65-01-12, N.D.C.C., provides that upon request of the Workers Compensation Bureau the Attorney General "shall defend all suits, actions, or proceedings brought against the bureau or any of its employees...." On its face, this provision does not constitute a waiver of the State's immunity or a legislative authorization to sue the State. Section 65-12-13, N.D.C.C., requires the State Boiler Inspector to furnish a $2,000 bond "conditioned upon the faithful performance of his duties." The purchase of a performance bond does not constitute acquisition of insurance or waiver of sovereign immunity. We conclude, as did the trial court, that the Larsons' rationalizations for asserting waiver of sovereign immunity are without merit.
The Larsons also assert that because the Boiler Inspectors represented that the boiler was properly and safely installed they should be estopped from asserting the doctrine of sovereign immunity. The Larsons have not cited any authority in support of applying the doctrine of estoppel to avoid application of the doctrine of sovereign immunity. This suggested application of the doctrine under the circumstances of this case is without merit.
The Larsons assert that they have a valid contract action against the Boiler Inspectors. Under Section 32-12-02, N.D. C.C., the Legislature has authorized actions "arising upon contract" to be brought against the State the same as against a private person. The Boiler Inspectors' duty to inspect the Larsons' boiler in this case arose under Section 65-12-03, N.D. C.C., which requires the State, through the Chief Boiler Inspector, to inspect all nonexempt boilers to ensure their safe operation. Under Section 65-12-06, N.D.C.C., a certificate of inspection for each inspected boiler must be issued where the inspection report certifies that the boiler is in a safe condition to be operated. Section 65-12-11, N.D.C.C., requires the owner of a boiler to pay inspection fees as determined by the Workers Compensation Bureau. The rights and obligations arising under Chapter 65-12, N.D.C.C., did not create a contractual relationship between the Larsons and the Boiler Inspectors. See Dickinson Public School District v. Sanstead, 425 N.W.2d 906 (N.D.1988). While the failure to make a careful inspection may constitute a breach of duty under tort principles, it does not, under these circumstances, constitute a breach of any contractual promise or obligation. There being no contractual relationship, express or implied, this action is not one "arising upon contract" for which an action can be brought against the State under Section 32-12-02, N.D.C.C.
The Larsons assert that they have a valid claim against the Boiler Inspectors, personally, in their individual capacities, for *260 being grossly negligent. Section 32-12.1-15(2), N.D.C.C., provides:"2. No employee of the state may be held liable in the employee's personal capacity for actions or omissions occurring within the scope of the employee's employment unless such actions or omissions constitute reckless or grossly negligent conduct, malfeasance, or willful or wanton misconduct."
As defined under Section 1-01-17, N.D. C.C., gross negligence consists in the want of slight care and diligence. This court has embellished upon that definition, defining gross negligence as constituting,"no care at all, or the omission of such care which even the most inattentive and thoughtless seldom fail to make their concern, evincing a reckless temperament and lack of care, practically willful in its nature." Wysoski v. Collette, 126 N.W.2d 896, 898 (N.D.1964).
The third-party complaint filed by the Larsons merely alleges that the Boiler Inspectors "were negligent in failing to observe and report the improper installation of the boiler" and that this conduct "constituted gross negligence."
Under Rule 56, N.D.R.Civ.P., a movant for summary judgment must show that there is no dispute as to either the material facts or the inferences to be drawn from undisputed facts and that he is entitled to judgment as a matter of law on the facts shown. Northwestern Equipment, Inc. v. Badinger, 403 N.W.2d 8 (N.D.1987). If the movant satisfies this initial burden, the adverse party may not rest upon mere allegations or denials but must respond by affidavit or as otherwise provided under the rule, setting forth specific facts showing that there is a genuine issue for trial. Federal Land Bank of Saint Paul v. Asbridge, 414 N.W.2d 596 (N.D.1987).
Robert Reetz, the Chief Boiler Inspector, submitted an affidavit to the trial court stating, in relevant part:"[B]oiler inspections are limited to examination of the mechanical systems and components of boilers and do not include inspections for latent fire defects or hazards. * * * * * * "[T]he floor area immediately adjacent to the boiler inspected was covered with a floor covering and the floor area underneath the boiler where the fire appears to have originated was covered by the boiler itself. It would not have been visually apparent to anyone conducting a routine boiler inspection that the floor area underneath the boiler may have been an unshielded combustible floor surface. The building in question was built in 1962 or 1963 and the boiler in question was probably installed at the same time and no problems were apparent for the ensuing years until the fire."
The Larsons did not submit any counter-affidavit to refute Reetz's statement that the floor area beneath the boiler was not visible in a routine inspection and that the inspections were limited to an examination of the mechanical system and components of the boiler. Consequently, the Larsons have failed to raise a genuine issue whether the Boiler Inspectors acted in a grossly negligent manner.
Although the determination of negligence is generally a question of fact to be determined by the factfinder, we agree with the trial court that in this case "[t]here has been no allegations of gross or willful or reckless conduct which would take the matter out of the immunity section." We conclude that, as a matter of law, the misconduct ascribed to the Boiler Inspectors in the third-party complaint, if proven, might constitute ordinary but not gross negligence. We further conclude, therefore, that the Larsons have not filed a claim for which the Boiler Inspectors could be held personally liable under Section 32-12.1-15(2), N.D.C.C.
The summary judgment dismissal is affirmed.
ERICKSTAD, C.J., and VANDE WALLE, J., concur.
*261 MESCHKE, Justice, dissenting.
I respectfully dissent. I have said before that "[s]overeign immunity, a hallmark of totalitarianism, is contrary to our constitutions." Dickinson Public School Dist. v. Sanstead, 425 N.W.2d 906, 911 (N.D.1988) (Meschke, Justice, concurring). Therefore, I disagree with today's decision to reconstitute the foreign relic of sovereign immunity.
I recognize that past decisions of this court have levitated the second sentence of one of our Declaration of Rights into a restriction on individual rights by immunizing state government from judicial review. But stare decisis is no more a barrier to judicial reconsideration of the "injustices of state immunity" than to abrogation of governmental immunity for the political subdivisions of the state. Kitto v. Minot Park District, 224 N.W.2d 795, 802-03 (N.D. 1974). Unjust and unsupportable interpretations should be reconsidered.
This perverse constitutional interpretation did not begin until Wirtz v. Nestos, 51 N.D. 603, 200 N.W. 524 (1924), decided more than a third of a century after the 1889 adoption of the original Declaration of Rights. The Nestos interpretation was an afterthought in a long opinion about the lack of vested rights in a State Guarantee Fund for insolvent banks. No history of the source of these declared Rights was traced. No meaning was given to the prime sentence of the section declaring individual rights beyond the power of the State government and legislature:All courts shall be open, and every man for any injury done him in his lands, goods, person or reputation shall have remedy by due process of law, and right and justice administered without sale, denial or delay.
N.D.Const. art. I § 22 (now renumbered as art. I § 9). Engraftment of the foreign concept of sovereign immunity on these deeply rooted rights of individuals surely called for more thoughtful examination and interpretation than the afterthought thrown into Nestos. Unfortunately, no careful interpretation has been undertaken.
Our "open courts" Declaration came from comparable expressions in the Magna Carta, as I explained in Sanstead, 425 N.W.2d at 911, n. 2. See A.E. Dick Howard, The Road from Runnymede: Magna Carta and Constitutionalism in America, 483-86 (1968); The Magna Charta, reprinted in 13 North Dakota Century Code 1-9. Our form of this Declaration, including the second sentence, can be traced back to 1790 when Pennsylvania, one of our first 13 states, adopted a provision identical in wording. Scholarly study of the history of this provision has demonstrated "that the lawyer-draftsmen framers of the 1790 [Pennsylvania] Constitution could not possibly have said that [the state] is immune from all lawsuits without its consent." Sloan, Lessons in Constitutional Interpretation: Sovereign Immunity in Pennsylvania, 82 Dick.L.Rev. 209, 210 (1978). That history should be heeded in interpreting our "open courts" Declaration. Pennsylvania and five other states have rejected sovereign immunity under like constitutional provisions.Mayle v. Pennsylvania Dept. of Highways, 479 Pa. 384, 388 *262 A.2d 709, 719, n. 80 (1978). The well reasoned construction of a like constitutional provision in another state from which ours is derived is highly persuasive. 2A N. Singer, Sutherland Statutory Construction § 52.04 (4th ed. 1984). North Dakota should also reject sovereign immunity.
The effect of the unstudied Nestos ruling and its repetitions transformed a constitutional prescription for judicial review into a prohibition. Judicial legerdemain made the subordinate sentence of a constitutional clause into the controlling sense, compromising a customary principle of constitutional interpretation that the Declaration of Rights are an instrument of limitations on state government rather than an instrument of grants to state government. See Senger v. Hulstrand Const., Inc., 320 N.W.2d 507, 510 (N.D.1982) (Justice Sand, concurring). Other principles for construing constitutional language are similar to those for construing statutes. State ex rel. Link v. Olson, 286 N.W.2d 262, 269 (N.D.1979). Thus, we should be "guided by the common-sense principle that a [constitution] is to be read to give effect to each of its provisions, whenever fairly possible." County of Stutsman v. State Historical Society, 371 N.W.2d 321, 325 (N.D. 1985). It does not make sense to read the subordinate sentence in the "open courts" Declaration as supervening the meaning of the declared rights.
As I said in Sanstead, "[u]ninformed and unsupported past precedents of this court, applying an unexpressed and unintended limitation on access to the courts of this state, should no longer be followed. See Kitto v. Minot Park District, 224 N.W.2d 795 (N.D.1974) (at 799: `a crumbling legal concept'). While the legislature may `direct' the course of claims against the State and its officials, it should be clarified that all citizens are entitled to the equal protection of their Constitution against State government." 425 N.W.2d at 911, n. 6. I believe that sovereign immunity of the State and its officials should be discarded as unconstitutional.
The majority opinion brushes aside, as unsupported, well shaped arguments that the judicially formulated doctrine of sovereign immunity violates federal and state constitutional guarantees. Larsons conveyed the trial court's reluctance in this case: "I too question the need for sovereign immunity when [the State has] clearly taken upon [itself] a function which can be handled by private parties." Larsons quoted a recent legal encyclopedia summary "that the doctrine of governmental immunity from suit is currently in disfavor, and that today courts are disposed to hear an action against the state unless good reason stands in the way." 72 Am.Jur.2d States, Territories, and Dependencies § 101 (1974). Larsons cited NDCC 31-11-05(1) ("When the reason of a rule ceases so should the rule itself."), Kitto, 224 N.W.2d at 798, n. 3 (quoting the Amicus Brief of the then North Dakota Attorney General: "The doctrine of governmental immunity in North Dakota is legally viable but morally wrong and discriminates against those of our citizens who encounter state or local governmental entities...."), and modern decisions of the United States Supreme Court protecting property interests from governmental action by applying due process standards. Larsons concluded:[R]igid adherence to sovereign immunity renders moot the protections set forth in Article I, section 9. The better interpretation is that while the state can regulate the method and manner of cases brought against it, denial of complete access to our state court system is unwarranted.
Today's decision also sweeps aside assurances made in Nestos, 200 N.W. at 535, when this rigid immunity for the State was first suggested:The rights of the citizen to due process, to the maintenance of the legal sanctity of the obligation of a contract, to the equal protection of the law, and to the enjoyment of the rights guaranteed by the Constitution of the state and of the *263 nation, will be open to vindication, and their violation to redress against the commission, no less than against any person, natural or artificial. Neither the guaranty fund commission nor any officer may, under our legal system, set the Constitution at defiance; officers and private individuals alike must obey it and respect the rights of persons thereunder. No such rights are in jeopardy in the case at bar, and, if any such rights be endangered by the commission in the future, no injured person will be denied the redress or the remedies to which he is entitled under the fundamental law of the land.
Neither the State nor its officials should be above the Constitution.
"How `uniquely amiss' it would be, therefore, if the government itself`the social organ to which all in our society look for the promotion of liberty, justice, fair and equal treatment, and the setting of worthy norms and goals for social conduct'were permitted to disavow liability for the injury it has begotten." Owen v. City of Independence, 445 U.S. 622, 651, 100 S. Ct. 1398, 1415, 63 L. Ed. 2d 673 (1980) (Mr. Justice Brennan, speaking for the majority). See Tribe, American Constitutional Law § 3-26 (2d ed. 1988). "Moreover, as Fitzpatrick v. Bitzer [427 U.S. 445, 96 S. Ct. 2666, 49 L. Ed. 2d 614 (1976)] explicitly recognizes, the fourteenth amendment, also an important source of congressional power, is itself framed as a limit on state action." Id. at 186. See also Howlett v. Rose, ___ U.S. ___, 110 S. Ct. 2430, 110 L. Ed. 2d 332 (1990). I believe that the doctrine of sovereign immunity of the State, foreign to a constitutional democracy, cannot survive serious constitutional scrutiny.
It is unimaginable, in the long run, that State government can be excused from respecting individual rights guaranteed by our Constitutions. "This Constitution ... shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding." U.S. Const. art. VI, cl. 2. Each North Dakota judge takes a constitutional oath: "I do solemnly swear that I will support the Constitution of the United States and the Constitution of the State of North Dakota;...." N.D.Const. art. XI, § 4. In a democracy that safeguards individual rights in a constitution, the judiciary cannot be impotent to rectify private injustices inflicted in the name of public interests.
Reversal here would not make the State liable for the conduct of its boiler inspectors unless, by trial, they were found at fault. For these reasons, I respectfully dissent.
Levine, J., joins.NOTES
 Schloesser settled his lawsuit against the Larsons and, pursuant to their stipulation, the trial court dismissed with prejudice Schloesser's action against the Larsons.
 My reasons then included the First Amendment to the United States Constitution which declares that government "shall make no law respecting ... the right of the people ... to petition the government for a redress of grievances." "The right to petition extends to all departments of the government; the right of access to the courts is but one aspect of the right of petition." 16A Am.Jur.2d Constitutional Law § 526 (1979). It applies to civil actions and to state governments. Id. § 528. See also De Jonge v. Oregon, 299 U.S. 353, 57 S. Ct. 255, 81 L. Ed. 278 (1937).
 Of course, most states have retreated from the doctrine of sovereign immunity. When it threw out the doctrine in 1983, the Supreme Court of Oklahoma said that "... today, there are not more than five states, including Oklahoma, which have not abolished the doctrine or have not, in some manner, retreated from its universal application as an immutable concept of the law." Vanderpool v. State, 672 P.2d 1153, 1155 (Okla.1983). See generally, Prosser & Keeton, The Law of Torts, p. 1043-1051 (5th ed. 1984).
 It is interesting to note that, when the Minnesota Supreme Court abolished the tort immunity of the State of Minnesota more than a decade ago in Nieting v. Blondell, 306 Minn. 122, 235 N.W.2d 597 (1975), it sidestepped consideration of constitutional guarantees:
We have been urged to declare the doctrine of sovereign immunity to be unconstitutional as a violation of due process or equal protection. However, because of our belief that the legislature will recognize the fairness and wisdom of allowing a wrongfully injured party to be compensated for his injuries, we decline to consider these constitutional questions.
235 N.W.2d at 603, n. 14. The constitutional arguments presented by today's appellants (which this court declines to address) are neither novel, unique, or unsupported.