by David Reutter

The North Dakota Supreme Court held the North Dakota Department of Corrections (NDDOC) is immune from litigation unless an employee injury is due to intentional act of conscious purpose.

Delmar Markel was a guard at North Dakota Youth Correctional Center when he was injured during an escape which was facilitated due to faulty locks on the doors. He later filed a complaint alleging negligence and retaliatory discharge. The NDDOC moved to dismiss the negligence claim arguing it was immune from litigation under the Workforce Safety Insurance (WSI) Act’s hazardous employment clause. As to the retaliatory discharge claim, it argued Mackel failed to exhaust administrative remedies. The district court dismissed the retaliatory discharge claim but not the negligence claim. 

The district court held an injury was intentional when the employer had knowledge that an injury was certain to occur and willfully disregarded that knowledge. While this case was still in the discovery phase, the legislature amended (section sign) 65-01-01 of the WSI Act to read, “the sole exception to an employer’s immunity from civil liability under this title…is an action for an injury to an employee caused by an employer’s intentional act done with conscious purpose of inflicting the injury.” 

The NDDOC refiled its motion to dismiss in light of the new law. The court again denied the motion, holding the Markel would get his opportunity to prove his set of facts in support of his claim.  The NDDOC then filed for supervisory writ from the Supreme Court of North Dakota. That court issued the writ to prevent the injustice of exposing the NDDOC to litigation where it should be immune from such and it had no adequate alternative remedy to the denial of its motion to dismiss. 

This court held that even if the incident occurred because the employer permitted a hazardous work condition to continue, the conduct fell short of intention with conscious purpose to inflict injury. Thus, the district court erred in denying the NDDOC’s motion to dismiss.

Simultaneously, Markel challenged the dismissal of his retaliatory discharge claim. The court denied hearing the issue holding that Markel could appeal the decision following the resolution of his negligence claim. Since he had an adequate alternative remedy, a supervisory writ would be inappropriate.

The court declined to exercise its jurisdiction on Markel’s retaliatory discharge claim and vacated the district court’s order denying the NDDOC’s motion to dismiss. It then entered an order dismissing Markel’s negligence claim. 

See: North Dakota v. Haskell N.D. 2d 2017

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