A widow (Judy Ann Bulman) filed a wrongful death suit against a construction company and the State of North Dakota (State) after her husband was killed in an automobile crash at a road construction site. The District Court, Slope Country, Southwest Judicial District dismissed the complaint. Ms. Bulman appealed the summary judgments that dismissed her wrongful death action. On appeal, the Supreme Court of North Dakota affirmed dismissal of the suit against the construction company. The appellate court then examined the claim of State sovereign immunity from liability in such actions. On September 13, 1994, the court ruled that the State legislature did not have authority to waive or modify the State's sovereign immunity from tort liability and reversed the dismissal of action against the State, remanding the case.

THE INCIDENT

Lloyd C. Bulman, husband of Judy Ann Bulman, died of his injuries from an automobile crash that happened on December 20, 1991 at a road construction site on U.S. Highway 85 near Amidon, North Dakota. At the time of the incident, Hulstrand Construction Company (Hulstrand), the general contractor, had halted work on the project for the winter.

TRIAL COURT DECISION

Ms. Bulman sued both the State and Hulstrand for the wrongful death of her husband. She claimed that the State was negligent in failing to inspect and maintain the roadway, warn motorists of hazardous conditions, and supervise the contractor's work. In addition, Ms. Bulman claimed that Hulstrand was negligent in failing to correct dangerous conditions at the site, provide warning signs, and comply with duties under its contract with the State.

The District Court, Slope County, Southwest Judicial District granted summary judgment for both defendants. The court concluded that sovereign immunity from liability prevented Ms. Bulman's action against the State and that Hulstrand could not be held liable because, under the construction company's contract, the State controlled the site during the project's winter suspension.

Ms. Bulman appealed the summary judgments.

APPEALS COURT DECISION

Ms. Bulman asserted that sovereign immunity for tort actions against the State should be abolished. The State responded that, according to the North Dakota constitution, only the state legislature was authorized to modify or waive the State's sovereign immunity. Art. I, § 15 9, N.D. Const. specifies:

Because the legislature had never waived the State's immunity from torts, the State asserted that the trial court had properly granted the summary judgment dismissal.

The appellate court responded that although the first sentence of the section cited above does not mandate a remedy for every alleged wrong, it does guarantee the right to access to the courts for the redress of wrongs (Hanson v. Williams County, 389 N.W.2d 319 (N.D.1986) and Andrews v. O'Hearn, 387 N.W.2d 716 (N.D.1986)). The court stated that it had historically interpreted the second sentence to provide a constitutional basis for sovereign immunity that could be modified or waived only by the legislature. However, recently the basis for that interpretation had been questioned (Leadbetter v. Rose, 467 N.W.2d 431 (N.D.1991), Schlosser v. Larson, 458 N.W.2d 257 (N.D.1990), and Dickinson Public School District v. Sanstead, 425 N.W.2d 906 (N.D.1988)).

The Supreme Court overruled the earlier decisions and stated that its objective was "to give effect to the intent and purpose of the people who adopted it [the article]. . . . The intent and purpose of a constitutional provision is to be determined, if possible, from the language itself."

The court emphasized the explicit guarantee in the article that courts shall be open and all shall have access to due process of law. The article's second sentence had been interpreted to limit that guarantee, but "there is no plain and unequivocal language in that sentence which says that no suit can be brought against the State without authorization by the Legislature, or that only the Legislature can modify or waive the common-law doctrine of sovereign immunity." The court maintained that the second sentence authorizes the legislature to specify in what manner, in which courts, and in which cases suits may be brought against the State.

Although, at the time North Dakota's constitution was adopted, the common-law doctrine allowed immunity to states, the second sentence of Art. I,  15 9 empowered the State legislature to modify or waive this doctrine. Nothing in the article, however, gave the common-law doctrine constitutional status or precluded the court from abolishing the doctrine "if that doctrine no longer meets the needs of the time." The court explained:

The court further explained that the doctrine of sovereign immunity was a legacy from a time when governments were smaller and less able to absorb the cost and inconvenience of tort liability actions. The court commented:

The court held that such immunity allows injustice to continue only because of the wrongdoer's status. It "contradicts the essence of tort law that liability follows negligence" and that both individuals and corporations are responsible for the negligence of those in their employ. Moreover, the court pointed out, ". . . [W]e are aware of no persuasive public policy reasons to continue a constitutional interpretation that condones an absolute bar to tort liability."

The court also argued that the rule of adherence to precedent should be followed with consideration for the changes that may take place over time. Common law continues and grows, and the court concluded that the State's sovereign immunity was outdated and no longer warranted. In making this decision, the court added, "We expressly overrule our prior cases sustaining that obsolete doctrine, and we join those states that have judicially abolished it."

Although the court abolished the State's immunity from tort liability, the court assured that this decision did not impose tort liability on the State in the exercise of discretionary acts in its official capacity. The court concluded that the abrogation of the State's sovereign immunity from tort liability should be forthcoming; the legislature could implement and plan by obtaining liability insurance or allocating funds. The court allowed fifteen days after the adjournment of the 54th legislative assembly for this implementation.

Because the sovereign immunity defense was no longer available to the State, the court reversed the summary judgment dismissal of Ms. Bulman's case against the State.

Ms. Bulman also argued that the trial court should not have dismissed her suit against Hulstrand, because, by contract with the State, the contractor had an ongoing duty of care to the public. Hulstrand responded that its contract gave the State control over the site and sign placement during the winter when construction was suspended.

According to its contract, Hulstrand was required to construct adequate approaches to all roads disturbed by the construction. The contractor was responsible for providing access to the road from all abutting property. The court found that, under the terms of its agreement with the State, Hulstrand did not have any legally enforceable duty of care to the traveling public. The contract specifically assigned authority over the project to the State during periods of suspension of construction, and the contract specified that warning signs could be posted only as the State Engineer directed.

There was no dispute that Mr. Bulman's crash occurred during the time that the project had been suspended for the winter. The appeals court held that, under the terms of its contract, the contractor could not be held liable for failing to correct any seemingly dangerous conditions at the worksite or for failing to provide "adequate" warning signs. Since Hulstrand did not control the project at the time the incident occurred, the court upheld the trial court's dismissal of Ms. Bulman's action against Hulstrand.

The appeals court remanded the case against the State for further proceedings.