M.M. v. Fargo Public School Dist. #1

20090121 M.M. and
Thomas Moore, Plaintiffs and Appellants
v.
Fargo Public School
District No. 1 and
Eugenia Hart, Defendants and Appellees

Appeal from: District Court, East Central Judicial District, Cass County
Judge Steven E. McCullough
Nature of Action: Personal Injury
Counsel:
Appellant: Lawyer not licensed in N.D.
Appellant: Craig E. Johnson
Appellee: Ronald H. McLean
Appellee: Michael J. Geiermann
Appellee: Jane L. Dynes
Term: 12/2009   Argument: 12/22/2009  1:30pm
ND cite: 2010 ND 102
NW cite: 783 N.W.2d 806

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Issues: Appellant's Statement of the Issues:
1. Did the trial court err by holding that a recreational use statute has eliminated the duty of schools and teachers to use reasonable care for the safety of a student in school?
2. Is it a violation of equal protection of the laws to apply a recreational use statute so broadly as to create different liability for the same acts of negligent supervision causing injury to a student, depending merely upon whether the injury occurred on or off of school property?
3. Was it error for the trial court to split a single claim of gross negligence for encouraging and permitting students to practice for a dangerous classroom stunt, by dismissing "part" of the claim to preclude evidence of the teacher's actions that encouraged the students to contemplate and rehearse for a dangerous stunt performance, and restricting proof to whether the teacher knew of and failed to stop the rehearsal?
4. Was it error to fail to instruct the jury on each of the alternate grounds for liability provided by the statute? 5. Was it error to fail to instruct the jury on the heightened legal duty of a teacher toward a child entrusted to her care?

Appellee's Statement of the Issues:
Whether the District Court properly granted partial Summary Judgment to the defendant Eugenia Hart based upon a lack of evidence that she suggested the boys perform the stunt on May 7, 2004.
Whether the District Court properly excluded evidence during the trial.
Whether the District Court properly instructed the jury on the definition of willful or wanton misconduct.
Whether the District Court properly instructed the jury on the issue of duty to children.
Whether the Appellant's properly raised the Constitutionality of N.D.C.C. Ch. 53-08 at the District Court level.
Whether the District Court properly granted Summary Judgment to the defendant Fargo Public School District based upon recreational immunity.


Appellee's Statement of the Issues:
Whether the district court properly granted summary judgment to the Fargo Public School District through application of N.D.C.C. Chapter 53-08?
Whether the Moores are precluded from raising a constitutional equal protection challenge for the first time on appeal?
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Docket entries:
104/14/2009 NOTICE OF APPEAL: 04/09/2009
204/14/2009 ORDER FOR TRANSCRIPT: 04/09/2009
304/20/2009 Pro Hac Vice Affidavit of Michael W. Unger
405/06/2009 RETENTION OF RECORD ON APPEAL: 05/29/2009
505/29/2009 MOT. EXT/TIME TRANSCRIPT
605/29/2009 ACTION BY SUPREME COURT (MTR). Granted: 07/08/2009
707/02/2009 MOT. EXT/TIME TRANSCRIPT
807/02/2009 ACTION BY CHIEF JUSTICE. Granted: 07/27/2009
907/25/2009 TRANSCRIPT DATED 11-21-08; 12-8-08; 12-9-08; 12-10-08; 12-11-08; 12-12-08; & 12/15/08 (7 vols)& COS
1007/25/2009 DISK - tra (11/21/08, 12/08/08; 12/09/08; 12/10/08; 12/11/08; 12/12/08; 12/15/08 (e-mailed)
1107/28/2009 RECORD ON APPEAL (not rec'd entry nos. 11, 40, 71, 80, 113-118)
1208/31/2009 MOT. EXT/TIME APPELLANT BRIEF (faxed letter from Craig E. Johnson)
1308/31/2009 E-FILED MOTION (Mot/Ext/ATB)
1408/31/2009 ACTION BY CLERK (MAT). Denied: 09/16/2009
1509/15/2009 Notice of Constitutional Challenge (e-filed)
1609/15/2009 APPELLANT BRIEF & Addendum(e-filed)
1709/15/2009 E-FILED BRIEF (ATB)
1809/15/2009 APPELLANT APPENDIX (e-filed)
1909/15/2009 E-FILED APPENDIX (ATA)
2009/16/2009 Received $25 surcharge for ATB (Receipt #19000)
2109/18/2009 Letter dtd 9-17-09 from Doug Bahr, Solicitor General, re Attorney General will not be filing
2209/18/2009 a brief in response to the Appellant's Brief
2309/22/2009 Received 7 copies of ATB from CSD
2409/22/2009 Received 6 copies of ATA from CSD
2510/07/2009 MOT. EXT/TIME APPELLEE BRIEF (E-FILED) (Fargo Public Schools)
2610/07/2009 E-FILED MOTION (AEB)
2710/08/2009 ACTION BY CLERK (MAE) (Fargo Public Schools). Granted: 10/29/2009
2810/09/2009 MOT. EXT/TIME APPELLEE BRIEF (e-filed) (Eugenie Hart)
2910/09/2009 E-FILED MOTION (MAE-Eugenie Hart)
3010/09/2009 ACTION BY CLERK (MAE - Eugenie Hart). Granted: 10/29/2009
3110/29/2009 APPELLEE BRIEF-EUGENIA HART
3210/29/2009 E-FILED BRIEF(AEB-EUGENIA HART)
3310/29/2009 APPELLEE APPENDIX-EUGENIA HART (PDF) E-FILED
3410/29/2009 E-FILED APPENDIX (AEB-EUGENIA HART) PDF
3510/29/2009 APPELLEE BRIEF-Fargo Public Schools (e-filed)
3610/29/2009 E-FILED BRIEF (AEB-FARGO PUBLIC SCHOOLS)
3710/29/2009 APPELLEE APPENDIX-FARGO PUBLIC SCHOOLS (E-FILED) PDF
3810/29/2009 E-FILED APPENDIX-FARGO PUBLIC SCHOOLS (PDF)
3910/30/2009 RECEIVED $25 E-FILING SURCHARGE FOR AEB-EUGENIA HART (RECIEPT #19211)
4010/30/2009 RECEIVED $25 E-FILING SURCHARGE FOR AEB-FARGO PUBLIC SCHOOLS (RECIEPT #19212)
4111/02/2009 Received 7 copies of AEB (Fargo Public School) from CSD
4211/02/2009 Received 6 copies of AEA (Fargo Public School) from CSD
4311/03/2009 Received 7 copies of AEB (Eugenia Hart) from C.D.
4411/03/2009 Received 6 copies of AEA (Eugenia Hart) from Central Duplicating.
4511/17/2009 NOTICE OF ORAL ARGUMENT SENT
4611/16/2009 REPLY BRIEF of Appellants (E-filed)
4711/16/2009 E-FILED BRIEF (RYB)
4811/24/2009 Received 7 copies of RYB from CSD
4912/22/2009 APPEARANCES: Michael W. Unger & Craig E. Johnson/Ronald H. McLean & Michael Geiermann
5012/22/2009 ARGUED: Unger/McLean & Geiermann
5112/22/2009 ORAL ARGUMENT WEBCAST
5206/10/2010 DISPOSITION: REVERSED AND REMANDED
5306/10/2010 UNANIMOUS OPINION: Crothers, Daniel John
5406/10/2010 Costs on appeal taxed in favor of Appellants
5506/11/2010 Judgment Sent to Parties
5607/08/2010 MANDATE
5707/26/2010 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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