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Gessner v. City of Minot8/18/1998
Filed 8/18/98 by Clerk of Supreme Court
Concurring & Dissenting opinion filed.
Norma Charlene Gessner, Plaintiff and Appellant v. City of Minot, a Municipal Corporation, and Ward County Water Management District, Defendants and Appellees
Appeal from the District Court for Ward County, Northwest Judicial District, the Honorable Everett Nels Olson, Judge.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
Opinion of the Court by VandeWalle, Chief Justice.
[ ] Norma Charlene Gessner appealed from judgments dismissing her wrongful death action against the City of Minot and the Ward County Water Management District. We hold Gessner failed to perfect service of process upon Minot and, consequently, the court did not acquire personal jurisdiction over Minot. We further hold there are genuine issues of material fact relevant to the District's potential liability. We affirm the judgment dismissing Minot but reverse the summary judgment dismissing the District and remand for a trial on the merits.
[ ] Gessner's four-year-old son, Cory Hammond, drowned on July 26, 1992, when he fell from a concrete flood control device on the Souris River, located adjacent to Oak Park in Minot. The structure was part of a flood control project constructed by the United States Army Corps of Engineers. The District acted as the sponsoring agency for the project, and agreed to provide "all lands, easements, and rights-of-way necessary for the construction and subsequent maintenance of the channel improvement" and to " aintain and operate all of the works for the channel improvement after the completion" of the project. The project was completed and transferred to the District for control of operation and maintenance, effective December 15, 1981. By resolution of the City Council, Minot agreed to provide for the "operation and maintenance of all of the project within the City of Minot" as of February 15, 1982.
[ ] After Cory's death in 1992, Gessner filed a wrongful death action against Minot and the District. Minot moved for dismissal, alleging insufficient service of process upon the city. The district court granted the motion, entered an N.D.R.Civ.P. 54(b), certification, and Gessner appealed to this Court. In Gessner v. City of Minot, 529 N.W.2d 868, 870 (N.D. 1995), we held the district court's 54(b) certification was improvidently granted, and we dismissed the appeal. The District then filed a motion for summary judgment, claiming the action against it should be dismissed because the District had no control over the flood control structure at the time of Cory's death. The district court granted summary judgment, dismissing Gessner's claim against the District. Gessner appealed.
Service Upon Minot
[ ] Gessner attempted to commence her action against Minot by serving a summons and complaint on Robert A. Schempp, the Minot City Manager. The district court found this was insufficient service of process, because Gessner should have served a member of Minot's governing body. Gessner claims service upon the city manager was adequate. We disagree.
[ ] Valid service of process is necessary to assert personal jurisdiction over a defendant. Smith v. City of Grand Forks, 478 N.W.2d 370, 371 (N.D. 1991). The procedure for serving process upon a city is directed by N.D.R.Civ.P. 4(d)(2)(E):
(d) Personal Service.
(2) How Service Made Within the State. Personal service of process within the state must be made as follows:
(E) upon a city, township, school district, park district, county, or any other municipal or public corporation, by delivering a copy of the s
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