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Gessner v. City of Minot8/18/1998
concept the most important consideration is whether the party timely served is obligated by necessity to protect the nonserved defendant by investigating and preparing all defenses available to both parties. Under those circumstances, timely service of process on the original party acts to satisfy the underlying purpose of the statute of limitations to ensure a defendant has a fair opportunity to prepare a defense.
[ ] The New York decisions provide helpful guidance for construing and applying the term "united in interest" under N.D.C.C. § 28-01-38. We conclude two parties are united in interest when they are in such relation to each other with regard to the subject matter of the plaintiff's action that they will necessarily stand or fall together, a judgment against one will necessarily result in liability upon the other, and neither can reasonably raise a defense which is unavailable to the other. Under that definition, we conclude Minot and the District are not co-defendants united in interest.
[ ] In reading the allegations in the pleadings, it is readily apparent Minot and the District have available different defenses and may not "stand or fall together" on the plaintiff's claims against them. For example, Minot could argue the District had a non-delegable duty to design and construct a flood control structure not unreasonably dangerous to children, but failed to do so. The factfinder could conclude Minot's agreement to maintain and operate the structure after it was completed was not an assumption of the duty to design and construct a reasonably safe structure and the operation and maintenance of it was not the proximate cause of the victim's death. Contrarily, the District could argue Minot became an independent contractor when it resolved to undertake all operation and maintenance of the structure and the victim's death was proximately caused by Minot's failure, after several years of operation and observation of the danger it posed, to use reasonable care in maintaining the structure to make it reasonably safe for children. The District could further argue it owed no duty to the victim to maintain the structure in a reasonably safe condition.
[ ] The question of agency is a fact question for the trier of fact. E.g., Red River Commodities, Inc. v. Eidsness, 459 N.W.2d 805, 810 (N.D. 1990). The factfinder could also determine Minot was acting as the agent of the District in providing maintenance and care of the flood control structure and the District is vicariously liable on a theory of respondeat superior for the city's negligence in that undertaking.
[ ] All of these potential defenses hinge upon factual determinations not yet fully developed on the record. It is enough that these defendants do not necessarily stand or fall together on plaintiff's claims against them. Significant and separate defenses are available to each of them, and their interests may be more aptly described as being antagonistic than united. We therefore hold service of the summons upon the District did not constitute commencement of the action against Minot, under N.D.C.C. § 28-01-38. The district court did not err in dismissing Gessner's complaint against Minot for insufficiency of service of process.
Summary Judgment Dismissal of the District
[ ] The trial court granted summary judgment dismissal of Gessner's action against the District, concluding: o evidence has been presented that the Ward County Water Management District has exercised control or direction over the flood control improvements within the City of Minot since 1982. Neither has it been demonstrated that the Ward County Water Management District has retained any ability to control or otherwi
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