Opinions

Moszer, et al. v. Witt (CONSOLIDATED w/20000203) 2001 ND 30
Docket No.: 20000202
Filing Date: 2/15/2001
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Kapsner, Carol

Highlight: A jury verdict which assesses fault to a person after finding the person's negligence was not a proximate cause is a clearly inconsistent and perverse verdict.
Litigating parties have a right to have exceptions noted to the instructions to which they did not agree.
A party is entitled to a new jury trial when the court so injects itself into the jury deliberation process on the merits that the parties have been denied their right to have the jury determine the facts on the instructions given to them as approved by the parties.
When a party challenges the constitutionality of an act in an action where neither the state nor an agency or officer thereof is a party, the party raising the constitutional issue must notify the attorney general, who may then intervene on behalf of the State.

Vogel v. Braun, et al. 2001 ND 29
Docket No.: 20000193
Filing Date: 2/15/2001
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: VandeWalle, Gerald

Highlight: A prison inmate may access funds in his release aid account if authorized by the warden.
A trial court may deny a motion to proceed in forma pauperis if the action is totally without merit.
A party requesting oral argument under N.D.R.Ct. 3.2(a) cannot complain about a lack of notice of a time change brought about at his request.

Greenwood v. Paracelsus Health Care, et al. 2001 ND 28
Docket No.: 20000175
Filing Date: 2/15/2001
Case Type: Appeal - Civil - Malpractice
Author: Neumann, William

Highlight: Section 28-01-46, N.D.C.C., which requires an affidavit of an expert to support an allegation of medical malpractice, does not apply once the trial has begun.
To establish a prima facie case of medical malpractice, the plaintiff must present evidence establishing the applicable standard of care, a violation of that standard, and a causal relationship between the violation and the alleged harm.
A medical malpractice plaintiff may establish the relevant standard of care and a prima facie case through cross-examination of the defendant physician.

Strutz v. State 2001 ND 27
Docket No.: 20000268
Filing Date: 2/15/2001
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: A trial court's findings of fact in a post-conviction relief proceeding will not be disturbed unless clearly erroneous.

Carry Mocassin, et al. v. State Farm 2001 ND 26
Docket No.: 20000065
Filing Date: 2/15/2001
Case Type: Appeal - Civil - Insurance
Author: Per Curiam

Highlight: Summary judgment dismissing claims for deceit, negligent misrepresentation, bad faith, and infliction of emotional distress is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).

Wilson v. State (cross-reference w/990193) 2001 ND 24
Docket No.: 20000229
Filing Date: 2/15/2001
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Appeal from denial of post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).

Weathers, et al. v. Peters, et al. 2001 ND 23
Docket No.: 20000141
Filing Date: 2/15/2001
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Per Curiam

Highlight: Denial of Motion to Exclude Evidence of results of a Blood Alcohol Concentration test and Judgment on Jury Verdict dismissing claims on the merits and with prejudice are summarily affirmed under N.D.R.App.P. 35.1(a)(4).

Fredericks v. American Federal Bank 2001 ND 22
Docket No.: 20000150
Filing Date: 2/5/2001
Case Type: Appeal - Civil - Contracts
Author: Per Curiam

Highlight: Judgment awarding employee severance benefits is summarily affirmed under N.D.R.App.P 35.1(a)(2).

Wanstrom v. ND Workers Comp. Bureau, et al. (cross-reference w/990306) 2001 ND 21
Docket No.: 20000187
Filing Date: 2/2/2001
Case Type: Appeal - Administrative - Workers Compensation
Author: VandeWalle, Gerald

Highlight: The presumption that a firefighter's lung disease was suffered in the line of duty is based on a legislatively adopted premise that a firefighter's occupational exposure to smoke causes lung disease, and the presumption cannot be rebutted by expert medical opinion rejecting that underlying premise.

Kautzman, et al. v. McDonald, et al. 2001 ND 20
Docket No.: 20000156
Filing Date: 2/2/2001
Case Type: Appeal - Civil - Torts (Negligence, Liab., Nuis.)
Author: Maring, Mary

Highlight: Absent the timely filing of a notice of claim against the state or one of its employees, the court lacks subject matter jurisdiction to entertain a lawsuit against them.
When a plaintiff brings an action for intentional infliction of emotional distress, the court must initially decide whether a defendant's conduct reasonably may be regarded as "extreme and outrageous."
The owner of a domestic animal which is killed or injured by the negligent or willful act of a third person proximately resulting in that death or injury is entitled to recover for the loss suffered.
The decision by law enforcement officers whether the plaintiffs' dogs posed a danger to the officers or to others, thereby justifying the dogs' destruction, does not fall within the discretionary function exception to political subdivision liability.