McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3
Scott Kondrad, a minor, by and through Shari McPhail as next friend, Plaintiff and Appellant v. Bismarck Park District, Defendant and Appellee
2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3
January 17, 2003, Filed
Prior History: [***1] Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Bruce A. Romanick, Judge.
Counsel: Michael Ray Hoffman, Bismarck, N.D., for plaintiff and appellant.
Randall J. Bakke, Smith Bakke Oppegard Porsborg Wolf, Bismarck, N.D., for defendant and appellee.
Judges: Opinion of the Court by Maring, Justice. Mary Muehlen Maring, William A.
Neumann, Dale V. Sandstrom, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J.
Opinion By: Mary Muehlen Maring
[**412] Maring, Justice.
[*P1] Scott Kondrad, a minor, by and through his mother, Shari McPhail, as next friend, appealed from a summary judgment dismissing his action for damages against the Bismarck Park District for injuries suffered in a bicycle accident.
We hold a waiver and release signed by McPhail exonerates the Park District for its alleged negligence in this case, and we affirm.
[*P2] The bicycle accident occurred on September 9, 1999, at the Pioneer Elementary School while Kondrad was [***2] participating in BLAST, an after-school care program operated by the Park District. Kondrad fell on the school grounds while riding a bicycle owned by a child who was not part of the BLAST program. Kondrad injured his arm in the fall, and McPhail subsequently sued the Park District for damages on Kondrad’s behalf, asserting Kondrad’s injuries were the result of the Park District’s negligent supervision of the children in the BLAST program. The Park District moved for a summary judgment, claiming McPhail had released the Park District from liability for the accident.
The district court construed the waiver and release signed by McPhail, determined it exonerated the Park District from liability, and granted the Park District’s motion for dismissal of the case.
[*P3] On appeal, Kondrad asserts the district court erred in granting the summary judgment dismissal and in concluding that the waiver and release signed by McPhail exonerated the Park District from liability for its alleged negligence.
[*P4] Summary judgment under N.D.R.Civ.P. 56 is a procedural device for properly disposing of a lawsuit without trial if, after viewing the evidence in the light most favorable to [***3] the nonmoving party, there are no genuine issues of material fact or conflicting inferences which can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. Jose v. Norwest Bank, 1999 ND 175, P7, 599 N.W.2d 293. Whether the district court properly granted summary judgment is a question of law and is reviewed de novo. Garofalo v. St. Joseph’s Hosp., 2000 ND 149, P6, 615 N.W.2d 160. On appeal, we review the evidence in the light most favorable to the party opposing the motion for summary judgment, giving that party the benefit of all favorable inferences that reasonably can be drawn from the evidence. Olander [**413] Contracting Co. v. Gail Wachter Invs., 2002 ND 65, P9, 643 N.W.2d 29.
[*P5] Resolution of this appeal requires us to interpret the “Parent Agreement” signed by McPhail when she enrolled Kondrad in the BLAST program, which included the following waiver and release language:
I recognize and acknowledge that there are certain risks of physical injury to participant in this program and I agree to assume the full risk of any such injuries, damages or loss regardless of [***4] severity which I or my child/ward may sustain as a result of participating in any activities associated with this program. I waive and relinquish all claims that I, my insurer, or my child/ward may have against the Park District and its officers, servants, and employees from any and all claims from injuries, damages or loss which I or my child/ward may have or which may accrue to me or my child/ward on account of my participation of my child/ward in this program.
Kondrad argues this language must be interpreted as exonerating the Park District from liability for damages only as to injuries sustained during “activities associated with” the BLAST program. The Park District has conceded that riding a bicycle was not an activity associated with the program. Kondrad asserts the release does not, therefore, exonerate the Park District from liability if its negligence resulted in Kondrad incurring injuries while riding the bicycle. The Park District asserts the waiver is unambiguous and released the Park District from liability for any and all injuries sustained by Kondrad while participating in the BLAST program. The Park District argues the waiver and release exonerated it from [***5] liability for negligence resulting in injury or damages to Kondrad while participating in the program irrespective of whether, at the time of the injury, Kondrad was involved in a planned activity associated with the program.
[*P6] Generally, the law does not favor contracts exonerating parties from liability for their conduct. Reed v. Univ. of North Dakota, 1999 ND 25, P22, 589 N.W.2d 880. However, the parties are bound by clear and unambiguous language evidencing an intent to extinguish liability, even though exculpatory clauses are construed against the benefitted party. Id. When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible. N.D.C.C. § 9-07-04; Meide v. Stenehjem ex rel. State, 2002 ND 128, P7, 649 N.W.2d 532. The construction of a written contract to determine its legal effect is a question of law for the court to decide, and, on appeal, this Court will independently examine and construe the contract to determine if the trial court erred in its interpretation of it. Egeland v. Continental Res., Inc., 2000 ND 169, P10, 616 N.W.2d 861. [***6] The issue whether a contract is ambiguous is a question of law. Lenthe Invs., Inc. v. Serv. Oil, Inc., 2001 ND 187, P14, 636 N.W.2d 189. An unambiguous contract is particularly amenable to summary judgment. Meide, 2002 ND 128, P7, 649 N.W.2d 532.
[*P7] We conclude the language of waiver and release under the agreement signed by McPhail is clear and unambiguous. We construe all provisions of a contract together to give meaning to every sentence, phrase, and word. U.S. Bank Nat’l Ass’n v. Koenig, 2002 ND 137, P9, 650 N.W.2d 820. The assumption of risk and waiver clauses are separate and distinct. Each contains a clearly expressed meaning and consequence. Under the assumption of risk clause, McPhail agreed to assume the full risk of injury and damages resulting from Kondrad participating in [**414] any activities associated with the BLAST program. In addition, under the waiver and release clause, McPhail waived and relinquished all claims against the Park District for injuries or damages incurred on account of Kondrad’s participation in the BLAST program. The language of waiver and release is not limited to only those injuries incurred [***7] while participating in activities associated with the program, but to all injuries incurred by the child on account of his participation in the program.
[*P8] It is undisputed that Kondrad’s bicycle accident occurred on the school grounds while Kondrad was participating in the BLAST program. This is the very type of situation for which the Park District, under the release language, insulated itself from liability for alleged negligence while operating the after-school care program. Under the unambiguous language of the agreement, McPhail exonerated the Park District from liability for injury and damages incurred by Kondrad while participating in the program and caused by the alleged negligence of the Park District. 1
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – -1
Under N.D.C.C. § 9-08-02 a party is precluded from contractually exonerating itself from liability for willful acts. See Reed v. Univ. of North Dakota, 1999 ND 25, P22 n.4, 589 N.W.2d 880. The release in this case is not specifically limited to exonerating the Park District from liability for only negligent conduct.
However, Kondrad’s claim against the Park District is based on negligence, and he has not argued the release is invalid because it purports to exonerate the Park District from liability for intentional or willful acts. We do not, therefore, address that issue in this opinion.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –
[*P9] We hold the Parent Agreement signed by McPhail clearly and unambiguously exonerates the Park District for injuries sustained by Kondrad while participating in the BLAST program and which were allegedly caused by the negligent conduct of the Park District. We further hold, therefore, the district court did not err in granting summary judgment dismissing Kondrad’s action against the Park District, and we affirm.
[*P10] Mary Muehlen Maring
William A. Neumann
Dale V. Sandstrom
Carol Ronning Kapsner
Gerald W. VandeWalle, C.J.
WordPress Tags: McPhail,Bismarck,Park,District,LEXIS,Scott,Kondrad,Shari,friend,Plaintiff,Appellant,Defendant,Appellee,Supreme,Court,North,Dakota,January,Prior,History,Appeal,Burleigh,South,Central,Judicial,Honorable,Bruce,Romanick,Judge,Disposition,Counsel,Michael,Hoffman,Randall,Bakke,Smith,Oppegard,Porsborg,Wolf,Judges,Opinion,Justice,Mary,Muehlen,William,Neumann,Dale,Sandstrom,Carol,Kapsner,Gerald,VandeWalle,judgment,action,injuries,bicycle,accident,waiver,negligence,September,Pioneer,Elementary,School,BLAST,supervision,dismissal,Summary,device,lawsuit,fact,inferences,Jose,Norwest,Bank,Whether,Garofalo,Joseph,Hosp,Olander,Gail,Wachter,Invs,Resolution,Parent,Agreement,injury,participant,ward,insurer,officers,servants,employees,account,participation,Univ,clauses,intention,Meide,Stenehjem,State,construction,interpretation,Egeland,Continental,Lenthe,Serv,Koenig,assumption,consequence,Under,clause,addition,situation,Footnotes
North Dakota Skier Safety Act
TITLE 53 Sports and Amusements
CHAPTER 53-09 Skiing Responsibility Act
Go to the North Dakota Code Archive Directory
N.D. Cent. Code, § 53-09-01 (2013)
53-09-01. Legislative purpose.
The legislative assembly finds that the sport of skiing is practiced in this state by a growing number of North Dakota citizens and nonresidents. Since it is recognized that there are inherent risks in the sport of skiing which should be understood by each skier and which are essentially impossible to eliminate by the ski area operator, it is the purpose of this chapter to define those areas of responsibility and affirmative acts for which ski area operators shall be liable for loss, damage, or injury and those risks which the skier expressly assumes and for which there can be no recovery.
HISTORY: S.L. 1979, ch. 532, § 2.
Because this chapter bears a close correspondence to the legislative intent and does not create an impermissible classification, it does not violate the state’s constitutional guarantee to equal protection of the laws. Bouchard v. Johnson, 555 N.W.2d 81 (N.D. 1996).
Because this chapter applies to all persons operating a skiing facilty within the state, this is a permissible class and does not create a special law, as prohibited by the N.D. Const., Art. IV, § 13. Bouchard v. Johnson, 555 N.W.2d 81 (N.D. 1996).
Because this chapter does not operate as an absolute bar to recovery, it did not act as a denial of plaintiff’s access to the courts, as protected by the N.D. Const., Art. I, § 9. Bouchard v. Johnson, 555 N.W.2d 81 (N.D. 1996).
Go to Topic List Legislative Intent.
The legislative goal of this chapter is to limit the liability for ski facility operators from some of the inherent risks associated with skiing. Bouchard v. Johnson, 555 N.W.2d 81 (N.D. 1996).
27A Am. Jur. 2d, Entertainment and Sports Law, §§ 54-66, 86, 95-98.
Liability of operator of skiing, tobagganing, or bobsledding facilities for injury to patron or participant, 94 A.L.R.2d 1431.
Liability for injury or death from ski lift, ski tow or similar device, 95 A.L.R.3d 203.
Ski resort’s liability for skier’s injuries resulting from condition of ski run or slope, 55 A.L.R.4th 632.
Skier’s liability for injuries to or death of another person, 75 A.L.R.5th 583.
The following words and phrases when used in this chapter have, unless the context clearly indicates otherwise, the meaning given to them in this section:
1. “Aerial passenger tramway” means any device operated by a ski area operator used to transport passengers, by single or double reversible tramway; chairlift or gondola lift; t-bar lift, j-bar lift, platter lift, or similar device; or a fiber rope tow.
2. “Passenger” means any person who is lawfully using an aerial passenger tramway or is waiting to embark or has recently disembarked from an aerial passenger tramway and is in its immediate vicinity.
3. “Ski area” means property owned or leased and under the control of the ski area operator and administered as a single enterprise within the state of North Dakota.
4. “Ski area operator” means any person, partnership, corporation, limited liability company, or other commercial entity and their agents, officers, managers, employees, or representatives, who has operational responsibility for any ski area or aerial passenger tramway.
5. “Ski slopes and trails” means those areas designed by the ski area operator to be used by skiers for the purpose of participating in the sport of skiing.
6. “Skier” means any person present at a skiing area under the control of the ski operator for the purpose of engaging in the sport of skiing by utilizing the ski slopes and trails and does not include the use of an aerial passenger tramway.
7. “Skiing area” means all slopes and trails not including any aerial passenger tramway.
HISTORY: S.L. 1979, ch. 532, § 3; 1993, ch. 54, § 106.
53-09-03. Duties of ski operators with respect to ski areas.
Every ski operator shall have the following duties with respect to its operation of a skiing area:
1. To mark all trail maintenance vehicles and to furnish such vehicles with flashing or rotating lights which must be in operation whenever the vehicles are working or are in movement in the skiing area.
2. To mark with a visible sign or other warning implement the location of any hydrant or similar equipment used in snowmaking operations and located on ski slopes and trails.
3. To mark conspicuously the top or entrance to each slope, trail, or area with the appropriate symbol for its relative degree of difficulty and those slopes, trails, or areas which are closed, or portions of which present an unusual obstacle, must be marked at the top or entrance with appropriate symbols.
4. To maintain one or more trail boards at prominent locations at each ski area displaying that area’s network of ski trails and slopes with each trail and slope rated thereon in accordance with the symbols provided for in subsection 3.
5. To designate by trail board or other means which trails or slopes are open or closed.
6. To place, or cause to be placed, whenever snow grooming or snowmaking operations are being undertaken upon any trail or slope while such trail or slope is open to the public, a conspicuous notice to that effect at or near the top of such trail or slope.
7. To post notice, at or near the boarding area for each aerial passenger tramway designed to transport passengers with skis attached to boots, of the requirements of this chapter concerning the use of ski retention devices. This obligation is the sole requirement imposed upon the ski area operator regarding the requirement for or use of ski retention devices.
HISTORY: S.L. 1979, ch. 532, § 4.
There should be no liability for a ski area operator if the design of the ski run creates natural conditions, necessary to the enjoyment of the sport, and the design is so obviously dangerous the skier assumes the risk. Bouchard v. Johnson, 555 N.W.2d 81 (N.D. 1996).
Go to Topic List Nonexclusive List.
This section is a nonexclusive list of duties for ski facility operators. Bouchard v. Johnson, 555 N.W.2d 81 (N.D. 1996).
53-09-04. Duties of ski area operators with respect to aerial passenger tramways.
Every ski area operator shall have the duty to construct, operate, maintain, and repair any aerial passenger tramway in a safe and responsible manner.
HISTORY: S.L. 1979, ch. 532, § 5.
53-09-05. Duties of passengers.
Every passenger shall have the duty not to:
1. Board or embark upon or disembark from an aerial passenger tramway except at an area designated for such purpose.
2. Intentionally drop, throw, or expel any object from an aerial passenger tramway.
3. Do any act which interferes with the running or operation of an aerial passenger tramway.
4. Use any aerial passenger tramway unless the passenger has the ability to use it safely without any instruction on its use by the ski area operator or requests and receives instructions before entering the boarding area of the aerial passenger tramway.
5. Engage in any harmful conduct or willfully or negligently engage in any type of conduct which contributes to or causes injury to another person.
6. Embark on an aerial passenger tramway without the authority of the ski area operator.
7. Use any aerial passenger tramway without engaging such safety or restraining devices as may be provided.
8. Wear skis without properly securing ski retention straps.
HISTORY: S.L. 1979, ch. 532, § 6.
53-09-06. Duties of skiers.
It is recognized that skiing as a recreational sport is hazardous to skiers, regardless of all feasible safety measures which can be taken. Each skier expressly assumes the risk of and legal responsibility for any injury to person or property which results from participation in the sport of skiing including any injury caused by the following: variations in terrain; surface or subsurface snow or ice conditions; bare spots, rocks, trees, or other forms of forest growth or debris, lift towers and components thereof; pole lines; and snowmaking equipment which are plainly visible or are plainly marked in accordance with the provisions of section 53-09-03. Therefore, each skier shall have the sole individual responsibility for knowing the range of that skier’s own ability to negotiate any slope, trail, or aerial passenger tramway, and it is the duty of each skier to ski within the limits of the skier’s own ability, to make reasonable control of speed and course at all times while skiing, to heed all posted warnings, to ski only on a skiing area designated by the ski area operator, and to refrain from acting in a manner which may cause or contribute to the injury of anyone. The responsibility for collisions by any skier while actually skiing, with any person or object, is solely that of the individual or individuals involved in such collision and not that of the ski area operator. No person may:
1. Unless authorized by the ski area operator, place any object in the skiing area or on the uphill track of any aerial passenger tramway which may cause a passenger or skier to fall.
2. Cross the track of a t-bar lift, j-bar lift, platter lift or similar device, or a fiber rope tow except at a designated location.
3. Fail to wear retention straps or other devices to help prevent runaway skis.
HISTORY: S.L. 1979, ch. 532, § 7.
53-09-07. Liability of ski area operators.
Any ski area operator is liable for loss or damages caused by its failure to follow the duties set forth in sections 53-09-03 and 53-09-04 when the violation of duty is causally related to loss or damage suffered. A ski area operator is not liable to any passenger or skier acting in violation of the passenger’s or skier’s duties as set forth in sections 53-09-05 and 53-09-06, when the violation of duty by the passenger or skier is causally related to the loss or damage suffered; nor is a ski area operator liable for any loss or damage caused by any object dropped, thrown, or expelled by a passenger from an aerial passenger tramway.
HISTORY: S.L. 1979, ch. 532, § 8.
53-09-08. Liability of passengers.
Any passenger is liable for loss or damages resulting from violation of the duties set forth in section 53-09-05 and shall not be able to recover from the ski area operator for any losses or damages when a violation of the duties set forth in section 53-09-05 is causally related to the loss or damage suffered by the passenger.
HISTORY: S.L. 1979, ch. 532, § 9.
53-09-09. Liability of skiers.
Any skier is liable for loss or damages resulting from violation of the duties set forth in section 53-09-06 and shall not be able to recover from the ski area operator for losses or damages when the violation of the skier’s duty is causally related to the loss or damage suffered by the skier.
HISTORY: S.L. 1979, ch. 532, § 10.
If your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.
Alaska: Sec. 09.65.292
Sec. 05.45.120 does not allow using a release by ski areas for ski injuries
ARS § 12-553
Limited to Equine Activities
Florida Statute § 744.301 (3)
By Case Law
Allows a release signed by a parent to require arbitration of the minor’s claims
Release can be used for volunteer activities and by government entities
Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1
However the decision in Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 voided all releases in the state
On the Edge, but not enough to really rely on
Ruling is by the Federal District Court and only a preliminary motion
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Copyright 2013 Recreation Law (720) Edit Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Mobile Site: http://m.recreation-law.com
By Recreation Law Recfirstname.lastname@example.org James H. Moss #Authorrank
<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />
Keywords: #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #minor, #release, #ParentSignature, #NC, #NorthCarolina,#Alaska, #AK, #AZ, #Arizona, #CO, #Colorado, #Florida, #FL, #CA, #California, #MA, #Massachusetts, #Minnesota, #MN, #ND, #NorthDakota, #OH, #Ohio, #WI, #Wisconsin, #Hohe, #SanDiego, #SanDiegoUnifiedSchoolDistrict, #GlobalTravelMarketing, #Shea, #Gonzalez, #CityOfCoralGables, #Sharon, #CityofNewton, #Moore, #MinnesotaBaseballInstructionalSchool, #McPhail, #BismarkParkDistrict, #Zivich, #MentorSoccerClub, #Osborn, #CascadeMountain, #Atkins, #SwimwestFamilyFitnessCenter, Delware,
Burgad v. Jack L. Marcus, Inc., 345 F. Supp. 2d 1036; 2004 U.S. Dist. LEXIS 24491; CCH Prod. Liab. Rep. P17,226Posted: November 15, 2010
Burgad v. Jack L. Marcus, Inc., 345 F. Supp. 2d 1036; 2004 U.S. Dist. LEXIS 24491; CCH Prod. Liab. Rep. P17,226
Susan Burgad a/k/a Susan Hubbard, Plaintiff, -vs- Jack L. Marcus, Inc., Defendant.
Case No. A1-03-138
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH DAKOTA, SOUTHWESTERN DIVISION
345 F. Supp. 2d 1036; 2004 U.S. Dist. LEXIS 24491; CCH Prod. Liab. Rep. P17,226
November 24, 2004, Decided
November 24, 2004, Filed
DISPOSITION: Defendant’s Motion for Summary Judgment granted.
COUNSEL: [**1] For SUSAN BURGAD AKA SUSAN HUBBARD, Plaintiff: Theresa L. Zimmerman, BISMARCK, ND.
For JL MARCUS, INC, Defendant: Patrick W. Durick, PEARCE & DURICK, BISMARCK, ND.
For JACK L MARCUS, INC., Defendant: Patrick W. Durick, Bonnie L. Christner, PEARCE & DURICK, BISMARCK, ND.
JUDGES: Daniel L. Hovland, Chief Judge United States District Judge.
OPINION BY: Daniel L. Hovland
Summary: The Plaintiff filed a complaint against a sports bra retailer for injuries sustained while wearing the product. The Plaintiff alleged failure to warn, negligence, and strict products liability. The Court granted the Defendant’s Motion for Summary Judgment based on the Plaintiff’s failure to show a breach of duty on the part of the Defendant, failure to show causation, and failure to show the sports bra was either defective or unreasonably dangerous as required by North Dakota law. The Court’s decision was based primarily on the Plaintiff’s lack of any expert testimony.
[*1037] ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Before the Court is the Defendant’s Motion for Summary Judgment filed on August 30 2004. On November 1, 2004, the Plaintiff filed a response opposing the motion. For [**2] the following reasons, the motion is granted.
In July of 2001, the plaintiff, Susan Burgad, ordered a cotton/spandex sports bra from the defendant, Jack L. Marcus, Inc. (Marcus) catalog. The sports bra was shipped to Burgad on July 19, 2001. At that time Burgad was residing at the Missouri River Correctional Facility in Bismarck, North Dakota.
After receiving the sports bra, Burgad wore the bra outside without wearing a shirt. Burgad contends she exposed herself to the sun while wearing the sports bra without a shirt and was severely burned on both breasts. The record reveals that Burgad laid out in the sun while [*1038] wearing the black sports bra in temperatures exceeding 100 degrees. See Affidavit of Burgad, P 3. Burgad sustained three small burns on her right breast varying in size from 1-3 centimeters. She sustained three similar burns on her left breast varying from 1-2 centimeters. In December of 2003, Burgad filed an action in Burleigh County in North Dakota for negligence, product liability, and failure to warn. On December 29, 2003, Marcus removed the action under 28 U.S.C. § 1441 from Burleigh County to the United States [**3] District Court for the District of North Dakota.
II. STANDARD OF REVIEW
[HN1] It is well-established that summary judgment is appropriate when, viewed in a light most favorable to the non-moving party, there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Graning v. Sherburne County, 172 F.3d 611, 614 (8th Cir. 1999). A fact is “material” if it might effect the outcome of the case and a factual dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
[HN2] The basic inquiry for purposes of summary judgment is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1376 (8th Cir. 1996). The moving party has the initial burden of demonstrating to the Court that there are no genuine issues of material fact. If the moving party has met this burden, the non-moving party cannot simply [**4] rest on the mere denials or allegations in the pleadings. Instead, the non-moving party must set forth specific facts showing that there are genuine issues for trial. Fed.R.Civ.P. 56(e). A mere trace of evidence supporting the non-movant’s position is insufficient. Instead, the facts must generate evidence from which a jury could reasonably find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
III. LEGAL DISCUSSION
[HN3] The North Dakota Supreme Court has “recognized that negligence and strict liability in tort are separate and distinct theories of products liability and that each theory has a different focus.” Oanes v. Westgo, Inc., 476 N.W.2d 248, 253 (N.D. 1991) (citing Butz v. Werner, 438 N.W.2d 509 (N.D. 1989); Mauch v. Mfrs. Sales & Services, Inc., 345 N.W.2d 338 (N.D. 1984); Day v. General Motors Corp., 345 N.W.2d 349 (N.D. 1984)). Strict liability focuses on whether a product is defective and unreasonably dangerous, whereas negligence focuses on whether the manufacturer’s conduct falls below the standard of reasonable care. Crowston v. Goodyear Tire & Rubber Co., 521 N.W.2d 401, 406 (N.D. 1994).
[**5] A. NEGLIGENCE
[HN4] In any negligence action the plaintiff has the burden of demonstrating (1) a duty, (2) a breach of that duty, (3) causation, and (4) damages. Investors Real Estate Trust Properties, Inc. v. Terra Pacific Midwest, Inc., 2004 ND 167, 686 N.W.2d 140, 144 (N.D. 2004). Burgad’s negligence claim appears to be based on two theories: negligent design and negligent failure to warn.
[HN5] In a negligent design claim, the manufacturer or seller is not liable absent proof that the product is defective. Oanes v. Westgo, Inc., 476 N.W.2d 248, 253 (N.D. 1991). Therefore, one element of a negligent design claim is that the product is defective or unsafe. The plaintiff must prove that the defendant failed to use reasonable [*1039] care in designing the product and that failure resulted in a defective product.
[HN6] The North Dakota Supreme Court has recognized a cause of action for “failure to warn” and has cited the principles set forth in Section 388 of the Restatement Second of Torts (1965), as summarizing the elements for negligent failure to warn. Collette v. Clausen, 2003 ND 129, 667 N.W.2d 617, 624 (N.D. 2003). That section provides as follows:
§ 388 [**6] Chattel Known to Be Dangerous for Intended Use
One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier
(a) knows or has reason to know that the chattel is or likely to be dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.
Restatement (Second) of Torts § 388 (1965). The North Dakota Supreme Court held that by applying the principles of the Restatement, the court was not creating a new cause of action but merely clarifying existing basic negligence principles within the context of failure to warn. Collette, 2003 ND 129, 667 N.W.2d 617, 624 (citing Barsness v. General Diesel & Equip. Co., Inc., 383 N.W.2d 840, 845 (N.D. 1986)). [**7]
To support her claims, Burgad has submitted an “Analysis Report” completed by Chemir Analytical Services, a company based in Maryland Heights, Maryland. Chemir Analytical Services tested a sample of the sports bra worn by Burgad and a sample of an exemplar sports bra. The “Analysis Report” indicates the existence of different chemicals contained within the fabric of the sports bra. Burgad also submitted several Material Safety Data Sheets (MSDS) obtained over the Internet. The MSDS provide detailed information about chemicals, including toxicity and hazards associated with the particular chemical. Burgad then selected several of the chemicals found in the sports bras and submitted a MSDS for each chemical in an attempt to show negligence.
The basis for Burgad’s “failure to warn” claim is not clear from the pleadings. In her complaint she states that “the Defendant failed to warn the Plaintiff of the risks involved in exposing the bra to sunlight.” Complaint, P 21. A seemingly unrelated contention appears in Burgad’s brief: “There were no warnings that the bra should be laundered prior to use.” Yet another contention is that there were “no warnings of the existence of such chemicals [**8] or their potential for irritation or burning of the skin.” The alleged design defect appears to be that the bra contained certain chemicals which individually or in combination caused the burning.
However, Burgad’s claims of negligence appear to have several flaws. Most notably, under both theories, Burgad is required to prove negligence and that such negligence was the proximate cause of her injuries. The “Analysis Report” prepared by Chemir Analytical Services does not address the issues of duty, breach of duty, or causation. In order to circumvent the need to establish causation, Burgad contends that the doctrine of res ipsa loquitur should apply.
[*1040] The North Dakota Supreme Court has provided insight into the doctrine of res ipsa loquitur:
[HN7] Although labeled a doctrine, res ipsa loquitur is not a rule of substantive law but is a principle of evidence. Negligence must be affirmatively proved, and will not be presumed merely from the occurrence of the accident or damages. However, negligence may be proved by circumstantial evidence, and the res ipsa doctrine is a form of circumstantial evidence.
Robert v. Aircraft Investment Co., Inc., 1998 ND 62, 575 N.W.2d 672, 674 (N.D. 1998). [**9] The Supreme Court also explained how the doctrine operates:
[HN8] As applied in this State, res ipsa loquitur allows the fact-finder to draw an inference that the defendant’s conduct was negligent if the following foundational fact are provided: (1) the accident was one which does not ordinarily occur in the absence of negligence; (2) the instrumentality which caused the injury was in the exclusive control of the defendant; and (3) there was no voluntary action or contribution on the part of the plaintiff.
Id. A plain reading of the doctrine reveals that Burgad’s reliance upon the doctrine of res ipsa loquitur is misplaced. The instrumentality that allegedly caused the injuries (the sports bra) was not in Marcus’s exclusive control. In addition, the accident is not one which does not ordinarily occur in the absence of negligence. It is also unclear whether the actions of Burgad may have contributed in some manner to cause the injuries, namely, sunbathing in a black sports bra in temperatures exceeding 100 degrees. In summary, the doctrine of res ipsa loquitor does not operate in Burgad’s favor.
The record also reveals that Burgad is unable to establish and prove there [**10] was a breach of any standard of care, or that a design defect existed, due to the failure to retain an expert witness. Marcus correctly cites the Eighth Circuit case of Dancy v. Hyster Co., 127 F.3d 649 (8th Cir. 1997), to support the proposition that expert testimony is required to set forth a claim of negligence in a products liability action. In Dancy, the plaintiff filed an action against a lift truck manufacturer for negligence and strict liability. After striking the plaintiff’s expert under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993), the district court granted the defendant’s motion for summary judgment on both claims and held that the plaintiff could not prevail without expert testimony. Drawing upon Arkansas case law, the Eighth Circuit held that “absent expert testimony, there is no basis for the jury to evaluate the actions of an ordinarily prudent person.” Id. at 654; (citing Skinner v. R.J. Griffin & Co., 313 Ark. 430, 855 S.W.2d 913, 915 (Ark. 1993)): see Anderson v. Raymond Corp., 340 F.3d 520, 524-25 (8th Cir. 2003) (reaching the same decision and upholding summary judgment [**11] for claims of negligence, strict liability, and failure to warn due to lack of expert testimony under Arkansas law); Erling v. American Allsafe Company, 2000 U.S. App. LEXIS 22473, No. 99-3403, 2000 WL 1247863, *1-2 (8th Cir. Sept. 5, 2000) (upholding summary judgment as to negligent failure to warn, negligent design, and strict liability claims due to lack of expert testimony under North Dakota law).
[*1041] It is undisputed that no witness, other than Burgad, has stated that Marcus breached any standard of care, failed to exercise reasonable care in the design and manufacture of the sports bra, or that the sports bra was defective, unsafe, or unreasonably dangerous. No witness, other than Burgad, has established a causal connection between any alleged design defect and the injuries sustained by Burgad. Following Eighth Circuit precedent, Burgad’s claims of negligence are unable to survive summary judgment due to the lack of any expert testimony to support such claims. The Court finds that there are no genuine issues of material fact for a jury to resolve regarding the claims of negligence.
B. STRICT LIABILITY
The North Dakota Supreme Court has also described the necessary elements for [**12] strict products liability:
[HN9] In order to recover for injuries sustained as a result of a defective condition in a product, unreasonably dangerous to a consumer, the plaintiff must show by a preponderance of the evidence the product was defective in design or manufacture; the defect rendered the product unreasonably dangerous to the consumer; the defect existed when the product left the manufacturer; and the defect was a proximate cause of the plaintiff’s injuries.
Enderson v. Scheels Hardware and Sports Shop, Inc., 1997 ND 38, 560 N.W.2d 225, 228 (N.D. 1997) (citing Kaufman v. Meditec, Inc., 353 N.W.2d 297, 300 (N.D. 1984)). The North Dakota Century Code defines and clarifies these elements:
[HN10] No product may be considered to have a defect or to be in a defective condition, unless at the time the product was sold by the manufacturer or other initial seller, there was a defect or defective condition in the product which made the product unreasonably dangerous to the user or consumer
N.D. Cent. Code § 28-01.3-06. Section 28-01.3-01(3) of the North Dakota Century Code provides the definition of “unreasonably dangerous:”
[HN11] “Unreasonably dangerous” [**13] means that the product is dangerous to an extent beyond which would be contemplated by the ordinary and prudent buyer, consumer, or user of that product in that community considering the product’s characteristics, propensities, risks, dangers, and uses, together with any actual knowledge, training, or experience possessed by the particular buyer, user or consumer.
[HN12] Under North Dakota law, “a plaintiff cannot prevail simply by proving a product’s defect and causation of the injury which the plaintiff suffered.” Reagan v. Hi-Speed Checkweigher Co., Inc., 30 F.3d 947, 948 (8th Cir. 1994) (citing Kaufman v. Meditec, Inc., 353 N.W.2d 297, 301 (N.D. 1984)) (quotations omitted). The plaintiff must also prove that the product was unreasonably dangerous based on its condition at the time it left the manufacturer. The mere fact that an accident or incident occurred, standing alone, does not support a claim that a product was defective. As a general rule, a plaintiff is required to prove a product defect through an expert witness.
The Court finds that Burgad’s strict liability claims suffer a similar fate as the claims of negligence. [HN13] It is well-established [**14] that expert testimony is needed to prevail on a strict liability claim. See Dancy v. Hyster Co., 127 F.3d 649 (8th Cir. 1997). As previously noted, Burgad has made no showing that the sports bra was defective in design or manufacturer; that any such defect rendered the sports bra unreasonably dangerous to the user or consumer; that the defect existed when the sports bra left the manufacturer; or that the defect was a proximate cause of [*1042] the plaintiff’s injuries. In the absence of any expert testimony to establish the critical elements of a strict liability claim, the claim must fail. Merely submitting a series of Material Safety Data Sheets (MSDS), standing alone, will not meet the minimal burden of proof nor create a factual dispute for the jury to resolve at trial. A mere statement in a MSDS which notes that a certain chemical has the capacity to cause injury is not sufficient to create a jury question. The effects of exposure to any chemical or hazardous substance will always be dependent upon the dose, the duration of exposure, the method and manner of exposure, personal traits and habits, and the presence of other chemicals, toxic or otherwise. Many of the chemicals [**15] identified in the “Analysis Report” from Chemir Analytical Services are chemicals commonly found in clothing and many other consumer goods. The mere presence of chemicals in a piece of clothing such as a sports bra, or the fact such chemicals may have the potential to cause injury or illness, is not sufficient, by itself, to establish liability or causation in a products liability action.
The Defendant Jack L. Marcus’ Motion for Summary Judgment (Docket No. 18) is GRANTED.
IT IS SO ORDERED.
Dated this 24 day of November, 2004.
Daniel L. Hovland, Chief Judge
United States District Court