dissenting.
[¶ 25] Because the trial court appropriately granted summary judgment and did not abuse its discretion in denying reconsideration, I respectfully dissent.
*893I
[¶ 26] Dingers contend Strata and TSS owed them a duty of care; they were not relieved of liability by the accepted work doctrine or by following the plans and specifications for the bike path; they failed to comply with contract documents and specifications; and their placement of the sign constituted a nuisance because it violated N.D.C.C. § 24-12-02(1), which provides “[n]o person may ... [o]bstruct any public highway in any manner with intent to prevent the free use thereof by the public,” and the Manual on Uniform Traffic Control Devices (“MUTCD”) ¶ 1A-3.1, which provides in part: “Any unauthorized sign placed on the highway right-of-way by a private organization or individual constitutes a public nuisance.” Dingers argue that under the contract documents, Strata and TSS were required to report any conflict, error, or discrepancy in contract documents to the engineer, and obtain a written interpretation or clarification before proceeding; the work must comply with the contract documents; the contractors were to notify the engineer if they saw the specifications or drawings varied from laws or regulations; all laws, rules and regulations apply, and contractors are to be thoroughly familiar with the contract documents; and the contract documents require that “traffic control sign details not otherwise specified shall conform to the MUTCD.”2 Dingers assert the plans and specifications were silent with regard to the location of signs or signposts, the height of signs, or “the existence, dimensions, or configuration of any of the striping on the roadway,” and contend “[t]he negligence of TSS and Strata consisted of its failure to request information from the engineer about the location of the sign, their failure to consult the MUTCD, and their failure to place the signs at the appropriate height.”
II
[¶27] Under N.D.R.Civ.P. 56, a summary judgment may be granted if there is no genuine issue as to any material fact, and a party is entitled to a judgment as a matter of law. Summary judgment is a procedural device for prompt and expeditious disposition of a controversy without a trial if there is no genuine issue of material fact or if the law is such that resolution of factual disputes will not alter the result. Miller v. Kloeckner, 1999 ND 190, ¶5, 600 N.W.2d 881. Questions of law are fully reviewable. Id. Negligence actions are ordinarily inappropriate for summary judgment. Gullickson v. Torkelson Bros., Inc., 1999 ND 155, ¶ 6, 598 N.W.2d 503; Barsness v. General Diesel & Equip. Co., 383 N.W.2d 840, 844 (N.D.1986). A party seeking summary judgment has the burden of clearly demonstrating there is no genuine issue of material fact. Hurt v. Freeland, 1999 ND 12, ¶ 8, 589 N.W.2d 551. A party resisting a motion for summary judgment may not simply rely upon the pleadings or upon unsupported, conelusory allegations, but must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact, and must, if appropriate, draw the court’s attention to relevant evidence in the record raising an issue of material fact. Id. Factual assertions in a brief are insufficient to raise an issue of material fact. L.C. v. R.P., 1997 ND 96, ¶ 6, 563 N.W.2d 799; Northwestern Equip., Inc. v. Badinger, 403 N.W.2d 8, 10 (N.D.1987). All favorable inferences must be drawn in favor of the party opposing a motion for summary judgment, and we assume the truth of the assertions made by the party opposing the motion. Fleck v. ANG Coal Gasification Co., 522 N.W.2d 445, 448 (N.D.1994). In ruling on a motion for *894summary judgment, the trial court must consider the substantive burden of proof at trial. Hurt, at ¶ 8. Summary judgment is not properly granted merely because the trial court believes the movant will prevail if the action is tried on the merits. Federal Land Bank v. Thomas, 386 N.W.2d 29, 30-31 (N.D.1986); 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil § 2728 pp. 518-23 (3d ed.1998).
[¶ 28] “Every person is bound without contract to abstain from injuring the person or property of another or infringing upon any of his rights.” N.D.C.C. § 9-10-01. “Everyone is responsible ... for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person.” N.D.C.C. § 9-10-06. “Every person has a duty to act reasonably to protect others from harm.” Barsness, 383 N.W.2d at 845 n. 5. “[0]ne who undertakes to design and construct a structure has a duty to exercise ordinary care and skill to protect any who foresee-ably, or with reasonable anticipation, may be injured by the failure to do so.” Sime v. Tvenge Assocs. Architects & Planners, P.C., 488 N.W.2d 606, 610 (N.D.1992). “The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension.” Johnson v. American Motors Corp., 225 N.W.2d 57, 65 (N.D.1974) (quoting Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99, 100 (1928)). Strata and TSS had a duty to exercise reasonable care to protect travelers on the bike path.
[¶ 29] “Generally, a contractor may be relieved of liability if he followed the con-tractee’s plans or specifications which were defective or insufficient, and the defect or insufficiency caused the damage.” Umpleby v. State, 347 N.W.2d 156, 162 (N.D.1984). However, a contractor who follows the owner’s plans and specifications may be liable if they are “so obviously defective and dangerous that no reasonable man would follow them.” W. Page Keeton, Prosser and Keaton on Torts, § 104A, pp. 723-24 (5th ed.1984). See also Oxley v. Sabine River Authority, 663 So.2d 497, 504 (La.Ct.App.1995) (contractor not relieved of liability if he has justifiable reason to believe adherence to plans and specifications would create a hazardous condition); Meseck v. General Elec. Co., 195 A.D.2d 798, 600 N.Y.S.2d 384, 386 (1993) (contractor may justifiably rely on owner’s plans and specifications unless they are so apparently defective, an ordinary builder of ordinary prudence would be placed upon notice the work was dangerous and likely to cause injury).
[¶ 30] According to his deposition, Nicholas Richter, an inspector with the Ramsey County Highway Department, marked the sign locations on the bike path after he had been told where to put them by either John Olson, a Midwest consulting engineer who worked on this project for Ramsey County, or Floyd Austin, the Ramsey County Highway Supervisor. Floyd Austin said in a deposition he was not aware of any way in which the sign deviated from the plans, specifications, or requirements of the MUTCD. John Olson said in a deposition he did not know of anything TSS “did on this job that did not meet the requirements of the plans or specifications ... [or] the requirements of the Manual on Uniform Traffic Control Devices.” In his deposition, Ronald French, a Midwest consulting engineer who worked on the project for Ramsey County, said he did not know of any way in which TSS failed to comply with the plans, specifications, instructions given by the engineer, or the MUTCD. Olson said in his deposition the signs were placed where they were “[b]e-cause ... there was no ditch in between or any separation in between the bike path and the roadway,” putting the sign on the other side of the bike path would have been confusing to motorists, and “where you have a bike path that is right adjacent to a highway, your bigger danger is that the bicyclist is going to get hit by a car than the bicyclist is going to run into the sign.”
*895[¶ 31] In opposing the pretrial motions for summary judgment dismissing TSS and Strata, Dingers did not present evidence disputing the deposition testimony that nothing Strata and TSS did in providing and installing the sign failed to meet the requirements of the plans and specifications, the instructions of the engineer, or the requirements of the MUTCD. Nor have Dingers drawn our attention to any competent, admissible evidence they presented to the trial court in opposing the pretrial motion for summary judgment showing Strata or TSS had any reason to believe adherence to the plans and specifications would create a hazardous condition, or that the plans and specifications were so obviously defective and dangerous no reasonable person would follow them. Therefore, Dingers failed to demonstrate the existence of a genuine issue of material fact precluding summary judgment on their negligence claims before the trial court ruled on the pretrial motion for summary judgment.
Ill
[¶ 32] After the court dismissed the claims against Strata and TSS, Dingers’ claims against Ramsey County and Midwest proceeded to trial. However, those claims were settled after four days of trial, and judgments of dismissal by stipulation of the parties were issued on December 3, 1998, and January 4,1999.
[¶ 33] On January 11,1999, Dingers filed a motion for reconsideration, alteration, amendment of, or relief from the trial court’s April 10, 1997, order granting the Strata and TSS motions for summary judgment. On March 12, 1999, the trial court issued an order denying the motion and ordered the entry of a final judgment dismissing all of Dingers’ claims. In their supporting brief, Dingers asserted, in part:
There is new evidence available because of developments at the trial. It appears quite clear from the testimony of various witnesses, including Mr. Austin, the county road superintendent, Mr. Olson and Mr. French, the engineers, and Mr. Daubert, Plaintiffs’ expert, that the only entity which made any decision regarding the height of the sign was TSS, the company which supplied the sign posts and the signs themselves. Second, the testimony of Dr. Rice, the neurosurgeon, and Mr. Daubert both indicate that the damage sustained by Deloris Dinger was caused by her head striking the sign itself.
Strata and TSS asserted the motion was untimely and Dingers did not show the new evidence could not, with reasonable diligence, have been discovered before the motions for summary judgment were filed. Dingers filed a supplemental brief and submitted the new evidence they relied on, which was trial testimony of several witnesses.
[¶ 34] Olson testified at the trial a “two-foot buffer zone” was added that was not “on the original plan.” Olson testified he did not recall being “asked for any interpretation of the documents; that is an interpretation of the location of the signs in the buffer zone.” Olson testified he did not recall the county communicating with him “about the actual location of the sign” or “with regard to the location of the striping and the signs.”
[¶ 35] Austin testified at trial he did not remember if he gave Richter “any direction as to where [the sign] was to be laterally.” He also testified the sign looks like it is on the bike path, and:
Q. But there’s nothing on the plan, is there, that says that the sign is to go on the traffic surface of the bike path, is there?
A. No.
Q. And there’s nothing in the uniform manual or the state road and bridge manual that says that it’s proper to put a sign right on the traveled portion, is there?
A. No.
French testified at trial:
Q. Did you understand that there was a portion of it that — let me ask you this, when you designed this bike path, *896did you consider the manual was a reference that you should rely on?
A. Yes, we used that as a guide in designing the bike path.
Q. Okay, at page 9B. I’d like to show you part 9B-2, does it say in this section that “where signs are to serve both bicyclists and motorists, mounting heights and lateral placement shall be specified as specified in Part II, Signs — early part of the manual — Figure 9-1 illustrates typical signing placement for bicycle trails. Overhead sign clearance on bicycle trails shall be a minimum of 8 feet. The clearance provided should also be adequate for the typical maintenance vehicles used on the bike way and where signs are for the exclusive use of the bicyclists, care should be taken that that they are located so that motorists are not confused by them.” It’s hard to read. From lateral distance over to the right edge of sign should be three feet?
A. Yes, it indicates three feet.
Q. Then is there some recommendations from the lower part of the sign downward of eight feet or am I — that’s six feet?
A. The vertical distance that 5 feet maximum and 4 feet minimum.
Q. That’s where it’s laterally off?
A. That’s right.
Q. Did you put anything in the plans themselves to the builder or whoever was reading them how high the sign should be?
A. Yes, indirectly we did.
Q. And how did you do that indirectly?
A. On page of your plans, there is a section called “Governing Specifications” that indicate that the governing specifications here would be North Dakota State Highway Department Road and Bridge Construction Manual.
[¶ 36] David Daubert, an accident reconstruction engineer, testified at trial a manual by the American Association of State Highway and Transportation Officials says “signs should not be lower than 8 feet in order to accommodate the height of the bicycle rider.” He also testified that, in his opinion, the design and construction of the bike path “did not comply with accept-' ed civil engineering practices” for two reasons: (1) the bike path was a “two-way facility” instead of having separate one-way paths on opposite sides of the roadway; and (2) “you’ve in essence put an obstacle into the path itself, into the facility. The sign itself wasn’t high enough. People were going to run into it.”
[¶ 37] Motions to reconsider are treated like motions to alter or amend judgments under N.D.R.Civ.P. 59. Woodworth v. Chillemi, 1999 ND 43, ¶7, 590 N.W.2d 446; Ellingson v. Knudson, 498 N.W.2d 814, 817 n. 5 (N.D.1993). The trial court’s decision on such a motion will be reversed on appeal only for an abuse of discretion. Woodiuorth, at ¶ 7; Ellingson, at 818. A trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, Lovin v. Lovin, 1997 ND 55, ¶ 14, 561 N.W.2d 612, its decision is not the product of a rational mental process, id., or it misinterprets or misapplies the law, Woodworth, at ¶ 7.
[¶ 38] Dingers were seeking relief on the ground of newly discovered evidence. Relief under either N.D.R.Civ.P. 59 or 60 requires that the newly discovered evidence be evidence which could not have been discovered earlier through the exercise of diligence.
Motions for “reconsideration” do not provide litigants with an opportunity for a “second bite at the apple” or allow them, like Emperor Nero, to “fiddle as Rome burns.” Such motions are not vehicles for relitigating old issues. Courts properly decline to consider new arguments or new evidence on reconsideration where those arguments or evidence were available earlier.
Steven Baicker-McKee, William M. Jans-sen, and John B. Corr, Federal Civil Rules Handbook 749 (2000). “[A] motion for reconsideration is an improper vehicle to introduce evidence previously available.” Bally Export Corp. v. Balicar, Ltd., 804 *897F.2d 398, 404 (7th Cir.1986). A movant supplementing a motion for reconsideration of an order for summary judgment with additional evidence may be required to show the evidence is newly discovered or that counsel had made a diligent but unsuccessful effort to discover the evidence. 27A Fed. Proa, L.Ed. § 62:756 (1996). “In preparing for trial, a party must marshal all of the available evidence through discovery proceedings.” Perry v. Reinke, 1997 ND 213, ¶29, 570 N.W.2d 224. Evidence produced, after trial, that was easily discoverable before trial is not newly discovered evidence. Id. at ¶ 28.
[¶ 39] The majority says: “The MUTCD contains standards for sign placement along a bike path. The standards refer to both height above and distance from the bike path.” However, no standard has been shown to have been breached. Section 9B-2, MUTCD, provides in part: “Figure 9-1 illustrates typical signing placement for bicycle trails. Overhead sign clearance on bicycle trails shall be a minimum of 8 feet.” Figure 9-1, MUTCD, which “illustrates typical signing placement for bicycle trails,” shows sign edges being three to six feet from the edge of a bicycle trail and at a height of four to five feet. The sign involved here was not “typical signing placement” as depicted in Figure 9-1. No overhead signs of a kind illustrated in the MUTCD were involved here, thus the minimum specified clearance of eight feet for overhead signs is inapplicable here. Although Figure 9-1 illustrates “typical signing placement for bicycle trails” and depicts distance and height ranges, the MUTCD contains no textual requirement of such distance and height parameters.
[¶40] Because the trial court did not explain why it denied Dingers’ motion to reconsider, the majority infers, at ¶ 21, “the trial court adhered to its erroneous conclusion Strata and TSS had no duty to the Dingers and failed to consider the evidence introduced at trial in the light most favorable to Dingers as the party opposing the motion for summary judgment.” I would not draw that inference. We have held, for example, “[a] juvenile court is ‘deemed to have properly considered and to have properly weighed the relevant information supplied for its consideration.’ ” In re J.A.G., 552 N.W.2d 317, 324 (N.D.1996) (quoting Commonwealth v. McDonald, 399 Pa.Super. 250, 582 A.2d 328, 333 (1990)). See also State v. Syvertson, 1999 ND 134, ¶ 21 n. 3, 597 N.W.2d 652 (“In any event, a trial court is presumed to have done its duty.”); Overboe v. Odegaard, 496 N.W.2d 574, 578 (N.D.1993) (“it will be presumed that the court heard and considered the necessary evidence to enable it to give judgment”).
[¶ 41] Dingers’ pretrial opposition to the motions for summary judgment focused on the location of the sign, while their post-trial submission to the trial court focused on the height of the sign. The trial testimony presented to the trial court as new evidence for reconsideration of the court’s summary judgment order was discoverable before the trial court initially ruled on the motions for summary judgment. Rather than a change in testimony that Dingers could not have anticipated, one could as easily infer Dingers’ motion for reconsideration reflected a change in strategy after their first strategy failed. The trial court was not required to give Dingers another try at establishing another theory.
[¶42] The trial testimony presented to the trial court as new evidence for reconsideration of the court’s summary judgment order was easily discoverable before the trial court initially ruled on the motions for summary judgment. The trial court did not abuse its discretion in denying Dingers’ motion for reconsideration, alteration, amendment of, or relief from the court’s order granting summary judgment.
IV
[¶ 43] I would affirm.
[¶ 44] Dale V. Sandstrom
. Paragraph 1A-4, MUTCD, provides in part:
The decision to use a particular device at a particular location should be made on the basis of an engineering study of the location. Thus, while this Manual provides standards for design and application of traf-fie control devices, the Manual is not a substitute for engineering judgment. It is the intent that the provisions of this Manual be standards for traffic control devices installation, but not a legal requirement for installation.