M.M. v. Fargo Public School Dist. #1
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| 20090121 |
M.M. and
Thomas Moore, Plaintiffs and Appellants
v.
Fargo Public School
District No. 1 and
Eugenia Hart, Defendants and Appellees
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| Appeal from: |
District Court,
East Central Judicial District,
Cass County
Judge Steven E. McCullough |
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Nature of Action: |
Personal Injury
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| Counsel: |
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| Term: |
12/2009 Argument: 12/22/2009 01:30pm
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| ND cite: |
2010 ND 102
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| NW cite: |
783 N.W.2d 806
Listen to recording of oral argument
using RealPlayer Basic,© a free download.
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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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| 1 | | 04/14/2009 | |
NOTICE OF APPEAL: 04/09/2009 |
| 2 | | 04/14/2009 | |
ORDER FOR TRANSCRIPT: 04/09/2009 |
| 3 | | 04/20/2009 | |
Pro Hac Vice Affidavit of Michael W. Unger |
| 4 | | 05/06/2009 | |
RETENTION OF RECORD ON APPEAL: 05/29/2009 |
| 5 | | 05/29/2009 | |
MOT. EXT/TIME TRANSCRIPT |
| 6 | | 05/29/2009 | |
ACTION BY SUPREME COURT (MTR). Granted: 07/08/2009 |
| 7 | | 07/02/2009 | |
MOT. EXT/TIME TRANSCRIPT |
| 8 | | 07/02/2009 | |
ACTION BY CHIEF JUSTICE. Granted: 07/27/2009 |
| 9 | | 07/25/2009 | |
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 |
| 10 | | 07/25/2009 | |
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) |
| 11 | | 07/28/2009 | |
RECORD ON APPEAL (not rec'd entry nos. 11, 40, 71, 80, 113-118) |
| 12 | | 08/31/2009 | |
MOT. EXT/TIME APPELLANT BRIEF (faxed letter from Craig E. Johnson) |
| 13 | | 08/31/2009 | |
E-FILED MOTION (Mot/Ext/ATB) |
| 14 | | 08/31/2009 | |
ACTION BY CLERK (MAT). Denied: 09/16/2009 |
| 15 | | 09/15/2009 | |
Notice of Constitutional Challenge (e-filed) |
| 16 | | 09/15/2009 | |
APPELLANT BRIEF & Addendum(e-filed) |
| 17 | | 09/15/2009 | |
E-FILED BRIEF (ATB) |
| 18 | | 09/15/2009 | |
APPELLANT APPENDIX (e-filed) |
| 19 | | 09/15/2009 | |
E-FILED APPENDIX (ATA) |
| 20 | | 09/16/2009 | |
Received $25 surcharge for ATB (Receipt #19000) |
| 21 | | 09/18/2009 | |
Letter dtd 9-17-09 from Doug Bahr, Solicitor General, re Attorney General will not be filing |
| 22 | | 09/18/2009 | |
a brief in response to the Appellant's Brief |
| 23 | | 09/22/2009 | |
Received 7 copies of ATB from CSD |
| 24 | | 09/22/2009 | |
Received 6 copies of ATA from CSD |
| 25 | | 10/07/2009 | |
MOT. EXT/TIME APPELLEE BRIEF (E-FILED) (Fargo Public Schools) |
| 26 | | 10/07/2009 | |
E-FILED MOTION (AEB) |
| 27 | | 10/08/2009 | |
ACTION BY CLERK (MAE) (Fargo Public Schools). Granted: 10/29/2009 |
| 28 | | 10/09/2009 | |
MOT. EXT/TIME APPELLEE BRIEF (e-filed) (Eugenie Hart) |
| 29 | | 10/09/2009 | |
E-FILED MOTION (MAE-Eugenie Hart) |
| 30 | | 10/09/2009 | |
ACTION BY CLERK (MAE - Eugenie Hart). Granted: 10/29/2009 |
| 31 | | 10/29/2009 | |
APPELLEE BRIEF-EUGENIA HART |
| 32 | | 10/29/2009 | |
E-FILED BRIEF(AEB-EUGENIA HART) |
| 33 | | 10/29/2009 | |
APPELLEE APPENDIX-EUGENIA HART (PDF) E-FILED |
| 34 | | 10/29/2009 | |
E-FILED APPENDIX (AEB-EUGENIA HART) PDF |
| 35 | | 10/29/2009 | |
APPELLEE BRIEF-Fargo Public Schools (e-filed) |
| 36 | | 10/29/2009 | |
E-FILED BRIEF (AEB-FARGO PUBLIC SCHOOLS) |
| 37 | | 10/29/2009 | |
APPELLEE APPENDIX-FARGO PUBLIC SCHOOLS (E-FILED) PDF |
| 38 | | 10/29/2009 | |
E-FILED APPENDIX-FARGO PUBLIC SCHOOLS (PDF) |
| 39 | | 10/30/2009 | |
RECEIVED $25 E-FILING SURCHARGE FOR AEB-EUGENIA HART (RECIEPT #19211) |
| 40 | | 10/30/2009 | |
RECEIVED $25 E-FILING SURCHARGE FOR AEB-FARGO PUBLIC SCHOOLS (RECIEPT #19212) |
| 41 | | 11/02/2009 | |
Received 7 copies of AEB (Fargo Public School) from CSD |
| 42 | | 11/02/2009 | |
Received 6 copies of AEA (Fargo Public School) from CSD |
| 43 | | 11/03/2009 | |
Received 7 copies of AEB (Eugenia Hart) from C.D. |
| 44 | | 11/03/2009 | |
Received 6 copies of AEA (Eugenia Hart) from Central Duplicating. |
| 45 | | 11/17/2009 | |
NOTICE OF ORAL ARGUMENT SENT |
| 46 | | 11/16/2009 | |
REPLY BRIEF of Appellants (E-filed) |
| 47 | | 11/16/2009 | |
E-FILED BRIEF (RYB) |
| 48 | | 11/24/2009 | |
Received 7 copies of RYB from CSD |
| 49 | | 12/22/2009 | |
APPEARANCES: Michael W. Unger & Craig E. Johnson/Ronald H. McLean & Michael Geiermann |
| 50 | | 12/22/2009 | |
ARGUED: Unger/McLean & Geiermann |
| 51 | | 12/22/2009 | |
ORAL ARGUMENT WEBCAST |
| 52 | | 06/10/2010 | |
DISPOSITION: REVERSED AND REMANDED |
| 53 | | 06/10/2010 | |
UNANIMOUS OPINION: Crothers, Daniel John |
| 54 | | 06/10/2010 | |
Costs on appeal taxed in favor of Appellants |
| 55 | | 06/11/2010 | |
Judgment Sent to Parties |
| 56 | | 07/08/2010 | |
MANDATE |
| 57 | | 07/26/2010 | |
RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE |