Hovland v. City of Grand Forks

VANDE WALLE, Chief Justice,

dissenting.

[¶ 21] In Fastow v. Burleigh County Water Resource Dist, 415 N.W.2d 505, 508 (N.D.1987), we said “the liability protections of Chapter 53-08, N.D.C.C., [are] applicable to political subdivisions in the same manner and under the same circumstances as those protections are applicable to a private owner of recreational land.”

[¶ 22] In reaching this conclusion, we applied N.D.C.C. § 32-12.1-03(1),6 which was enacted following our ruling in Kitto v. Minot Park Dist., 224 N.W.2d 795 (N.D.1974). In Kitto, the court abolished the doctrine of governmental immunity as it applied to political subdivisions, but only applied the holding to the parties, while expressly reserving the right to the legislature to enact legislation on the subject. 224 N.W.2d at 804. The legislature did so, enacting section 32-12.1-03. In interpreting this section, the court stated:

“a political subdivision is liable for injury caused from a condition or use of real property only under those circumstances in which a private person would be liable for such an injury. We believe that this provision unambiguously makes the liability protections of Chapter 53-08, N.D.C.C., applicable to political subdivisions in the same manner and under the same circumstances as those protections are applicable to a private owner of recreational land.”

Fastow, 415 N.W.2d at 508.

[¶ 23] Although the legislature has made other changes to Chapter 53-08 which appear to strengthen the immunity, see fn. 2, it has not amended Chapter 53-08 to counteract our decision in Fastow. See Effertz v. North Dakota Workers Compensation Bureau, 525 N.W.2d 691, 693 (N.D.1994) (“[t]he legislature is presumed to know the construction of its statutes ... and the failure to amend the statute indicates legislative acquiescence in that construction”).

[¶ 24] Obviously unhappy with the holding-in Fastow, the majority relegates it to dictum which the majority “is not compelled by stare decisis to follow here.” The majority rationalizes that it was not necessary to decide the issue of immunity because the Fastow court held the purchase of insurance waived that immunity. I disagree. If there was no im*390munity it would not have been necessary to resolve the issue of whether or not the purchase of insurance waived that immunity. Because of the interplay between Chapter 53-08 and Chapter 32-12.1, N.D.C.C., it is obvious the immunity issue had to be decided in Fastow. The Fastow opinion specifically notes that “[d]etermination of the following issues are necessary to resolve this case on appeal: (1) Whether or not Chapter 53-08, N.D.C.C., which limits liability of recreational landowners, is applicable to political subdivisions; and_” Fastow, 415 N.W.2d at 507.

[¶ 25] But whether or not the conclusion that the recreational use statutes apply to political subdivisions is holding or dictum is of little import, for it is apparent the majority is displeased with the holding and the result it would lead to in this case and would overrule it in any event.

[¶ 26] Hovlands and the majority contend Chapter 53-08 does not apply to the bike path because affording the City immunity in this case runs counter to the intent of the statute. They opine the statute was never intended to cover property with the characteristics of a public bike path. The statute’s intent, they maintain, was to encourage private landowners to open their land for recreational purposes. This uniform law, which was drafted by the Council of State Governments as “Suggested State Legislation,” is very similar to North Dakota’s Recreational Use Statute. 24 Council of State Governments, “Public Recreation on Private Lands: Limitations on Liability,” Suggested State Legislation, 150 (1965). The Hovlands’ arguments, embraced by the majority, ignore the already well-established position of this court that political subdivisions operating recreational areas are included under the immunity found in Chapter 53-08.

[¶ 27] The Hovlands also contend it is not the public/private distinction which dictates whether recreational immunity exists, but rather the characteristics of the property. The recreational area in Fastotv was a man-made lake in an essentially rural area and the bike path here is in a somewhat more urban setting. However, we do not split such a fine hair. Most significantly, there is nothing in Chapter 53-08 which specifies the immunity granted should only apply to rural, open areas. If the legislature intended such an application, it would have likely stated so, or following our decision in Fastow, amended the statute accordingly. Effertz, 525 N.W.2d at 693. The location and surroundings of the recreational area are not determinative as to whether immunity should be provided.

[¶28] Bike paths are within Chapter 53-08’s definition of “land.” Section 53-08-01(1) states, “ ‘[l]and’ includes roads, water, watercourses, private ways and buildings, structures and machinery or equipment thereon when attached to the realty.”7 This list is not exhaustive, and thus does not include bike paths. In the original definition of land, Chapter 53-08 differed from the Model Act, which defines land as, “land, roads, water, watercourses, private ways and buildings, structures, and machinery or equipment when attached to the realty.” 24 Council of State Governments, “Public Recreation on Private Lands: Limitations on Liability” Suggested State Legislation, 151 (1965).

[¶ 29] Nor was the omission of the word “land” from the definition of land an attempt by the legislature to narrow the application *391of the statute. No legislative history indicates such intent. The trial court found the bike path fell under the statutory definition of land and I agree. If the areas immune from suit were so strictly interpreted as to include only the various items listed in section 53-08-01(1), the intent of the legislature to provide immunity to those landowners who open their land for recreational purposes would be circumvented. To hold that a bike path, a course clearly designed for recreation, should not be included under the statute’s definition of land contradicts the purpose of the act, and I would not interpret the statute in this manner. See Americana Healthcare v. Dept. of Human Serv., 510 N.W.2d 592 (N.D.1994) (use of word “includes” indicates an incomplete list).

[¶ 30] Paced with section 32-12.1-03(1), N.D.C.C., and the construction placed on that language in Fastow, i.e., “[u]nder the foregoing provision a political subdivision is hable for injury caused from a condition or use of real property only under those circumstances in which a private person would be liable for such injury,” Fastow at 508, the majority concludes the result is absurd. But, it is a result the Legislature did not dispute after the Fastow decision, but rather reinforced. Not only did the Legislature not counter-act the decision in Fastow, it reinforced it through its recent amendment. See fn. 2.

[¶ 31] Apparently recognizing the weakness of its legislative-intent argument, the majority observes the construction giving the City immunity “might well fail an equal protection challenge under an intermediate standard of review,” forecasting, I assume, its holding on the 1995 amendments which seem to enact exactly what the majority now says was not intended. I expect there may be several reasons which would establish a “close correspondence between statutory classification and legislative goals” in holding the City immune from liability for injury to recreational users. This Court in Kitto, 224 N.W.2d at 803, did, after all, observe “this area of governmental liability is one which the legislature ean[ ] modify or shape within its constitutional authority.” Notwithstanding these words in Kitto, the majority opinion, coming on the heels of Bulman v. Hulstrand Const. Co., Inc., 521 N.W.2d 632, 639 (N.D.1994) (holding sovereign immunity is “outdated and is no longer warranted”), does not augur well for any form of governmental immunity.

[¶ 32] I would affirm the judgment of the district court.

[¶ 33] SANDSTROM, J., concurs.

. Section 32-12.1-03(1) provides,

"Each political subdivision is liable for money damages for injuries when the injuries are proximately caused by the negligence or wrongful act or omission of any employee acting within the scope the employee’s employment or office under circumstances where the employee would be personally liable to a claimant in accordance with the laws of this state, or injury caused from some condition or use of tangible property, real or personal, under circumstances where the political subdivision, if a private person, would be liable to the claimant.”

. This section was amended in 1995 to provide, " '[l]and’ includes all public and private land, roads, water, watercourses, ways and buildings, structures and machinery or equipment thereon.” (emphasis added) This amendment became effective on March 20, 1995. For our purposes, the amended definition of "land” does not apply. It appears the amendment was made to cure a "curious omission.” House Agriculture Committee, 1995 Standing Committee Minutes on SB 2127 (Feb. 9, 1995). See definition of recreational purposes, N.D.C.C. § 53-08-01(4), " '[Recreational purposes’ includes, but is not limited to, any one or any combination of the following: hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, winter sports, and visiting, viewing, or enjoying historical, archaeological, geological, scenic, or scientific sites, or otherwise using land for purposes of the user." (emphasis added) It is clear that in-line skating, although not specifically listed, would be a recreational use upon "land” similar to that of "pleasure driving.”

Although this statute was amended in 1995 to read " '[Recreational purposes' includes any activity engaged in for the purpose of exercise, relaxation, pleasure, or education[,]” the previous definition applies for our purposes here.