The elements which a plaintiff must establish to bring a successful negligence action in North Dakota are the following: (1) a duty by the defendant to the plaintiff; (2) breach of that duty by the defendant; (3) the breach of duty was the proximate cause of injury to the plaintiff; and (4) the plaintiff suffered damages as a result.
Assumption of Risk
The North Dakota Supreme Court, in Wentz v. Deseth, 221 N.W.2d 101 (1974), held that the affirmative defenses of assumption of risk was no longer valid in North Dakota. The decision came after the Legislative Assembly elected to follow a comparative negligence standard when evaluating a negligence action.
Partial Comparative Negligence
Per N.D.C.C. §32-03.2- 02 North Dakota follows a modified comparative fault standard in negligence actions. Comparative negligence does not completely bar a plaintiff’s potential monetary recovery for damages even if the plaintiff was partially responsible for their injury. Instead, comparative negligence allows for a plaintiff to recover as long as their apportionment of fault was not greater than 49%. If the court finds that the plaintiff was 50% or more responsible for their own injury, the plaintiff may be completely barred from monetary recovery.
For example, if a plaintiff is awarded $100,000 in damages but also found to be 10% at fault for their own injury, the plaintiff’s damages award will be reduced to $90,000 to account for the 10% of liability assigned to the plaintiff.
Joint & Several Liability
N.D.C.C. §32-03.2-20 states that joint tortfeasors are generally held to be severally liable for a plaintiff’s injuries. Several liability means that each defendant is only financially responsible for that portion of the damages award which is proportionate to each respective defendant’s assigned percentage of fault. However, if a court finds that the tortfeasors acted in concert with one another when committing the act that gave rise to the injury; the tortfeasors encouraged the act that gave rise to the injury; or ratified the act that gave rise to the injury for their own benefit, the tortfeasors will be held jointly and severally liable. Under joint and several liability, a plaintiff may recover the full damage award from one or all of the tortfeasors.
Where one defendant has paid more than their proportional share of liability that defendant has the right to seek contribution against any other joint defendant who has not paid their proportional share.
Compensatory damages are awarded to compensate the plaintiff for injuries suffered as a result of the negligence of the defendant(s). The award is meant to restore the plaintiff – as much as possible – to the condition they were in prior to the injury occurring.
Compensatory damages include reasonable expenses necessary for medical care; hospitalization and treatment; economic loss from loss of income (both past and future); pain and suffering; disability; disfigurement; and mental anguish.
Punitive damages are meant to punish a defendant rather than to compensate the plaintiff.
Per N.D.C.C. §32-03.2-11, for a punitive damage award to be granted, the plaintiff must prove by clear and convincing evidence that the defendant’s conduct was willful, wanton, fraudulent or malicious.
Per N.D.C.C. §2-03.2-11, North Dakota does not allow a punitive damage award in excess of twice the amount of awarded compensatory damages plus $250,000.
The law firm of Walker Morgan is located at 135 E Main St., Lexington, SC 29072. All lawyers at Walker Morgan are licensed to practice law in the State of South Carolina. Should you wish to retain our firm for legal representation regarding a potential case in any other jurisdiction we are required to associate local counsel in that foreign jurisdiction and seek permission from a court of the foreign jurisdiction to temporarily engage in the practice of law therein for purposes of pursuing your potential claim only.
By offering the following information the lawyers at Walker Morgan are not offering legal advice or legal guidance. The lawyers at Walker Morgan are not licensed to practice law in North Dakota. Should you have a question/concern specific to North Dakota law, please contact an attorney licensed to practice law in the State of North Dakota.