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Gessner v. City of Minot8/18/1998
ts. To acquire, construct, maintain, operate, finance, and control flood control projects, both within and adjacent to such municipality, and for such purpose to acquire the necessary real property and easements therefor by purchase and eminent domain, and to adopt such ordinances as may reasonably be required to regulate the same." N.D.C.C. § 40-05-01(68). See also N.D.C.C. § 40-05-01(59) empowering a city " o accept aid from, cooperate and contract with, and to comply with and meet the requirements of any federal or state agency for the establishment, construction, and maintenance of public works, including dams and reservoirs . . . for flood control . . .", et cetera. (My emphasis). "Cities shall also have the power to enter into an agreement with any such government, agency, or municipality . . . to hold such government, agency, or municipality harmless from any and all liability or claim of liability arising from the establishment, construction, and maintenance of such works, and to indemnify such government, agency, or municipality for any such liability sustained by it . . .", et cetera. Id. A water resource district is specifically empowered under N.D.C.C. § 61-16.1-09(3), (my emphasis), to "contract with the state or federal government, or any department or agency thereof, or any municipality within the district, in furnishing assurances and meeting local cooperation requirements of any project involving control . . . of water."
[ ] The City and the District jointly agreed on a flood control structure. That should make it a joint project. Partners, joint venturers, and agency relationships often have agreements between themselves on how to share their joint responsibilities. For examples, compare N.D.C.C. ch. 45-16 ("Relations Of Partners To Each Other And To Partnership"), with N.D.C.C. ch. 45-15 ("Relations Of Partners To Persons Dealing With Partnership"), particularly N.D.C.C. § 45-15-05 ("Partnership liable for partner's actionable conduct."). Similarly, compare N.D.C.C. ch. 3-02 ("Relation Between Principal And Agent"), with N.D.C.C. ch. 3-03 ("Relation Between Principal And Third Person"), and N.D.C.C. ch. 3-04 ("Relation Between Agent And Third Person"). Contracts between joint venturers do not defeat the unity of interest their conduct jointly manifests to others.
[ ] In my opinion, despite the majority's speculations about different defenses by each, there are many factual questions on the unity of interest between the City and the District on this common flood control structure. Findings on those factual elements could implement N.D.C.C. § 28-01-38 to make the valid service of process on the District binding on the City as "a joint contractor or otherwise united in interest" with the District.
[ ] To me, this project sounds like a joint one, it looks like a joint one, and these entities acted like it was a joint project. I believe Gessners should have the opportunity to prove at a trial it was a joint project.
[ ] For these reasons, I would also reverse the summary judgment dismissing the City of Minot, and I would remand for a complete determination of the factual disputes about their unity of interest. Those factual disputes are inextricably intertwined with the unresolved factual disputes on vicarious liability of the District that are otherwise remanded. The dismissal as to the City should be provisional on findings that it was not a "joint contractor or otherwise united in interest." Therefore, I Dissent from affirming the summary judgment completely dismissing this claim against the City of Minot.
[ ] Herbert L. Meschke
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