              Filed 07/22/2020 by Clerk of Supreme Court

                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                2020 ND 167

Duane Schroeder and Lynae Schroeder,
parents of Brooke Schroeder, and Lynae
Schroeder as Personal Representative
of the Estate of Brooke Schroeder,                  Plaintiffs and Appellants
      v.
State of North Dakota,                               Defendant and Appellee



                                No. 20190374

Appeal from the District Court of Barnes County, Southeast Judicial District,
the Honorable Mark T. Blumer, Judge.

AFFIRMED.

Opinion of the Court by Tufte, Justice.

Jason R. Vendsel (argued) and Rheider W. McCormick (on brief), Minot, N.D.,
for plaintiffs and appellants.

James E. Nicolai, Deputy Solicitor General, Office of the Attorney General,
Bismarck, N.D., for defendant and appellee.
                              Schroeder v. State
                                No. 20190374

Tufte, Justice.

[¶1] Duane and Lynae Schroeder, parents of Brooke Schroeder, and Lynae
Schroeder, as personal representative of the Estate of Brooke Schroeder,
appeal from a summary judgment dismissing their action against the State of
North Dakota related to a car accident, which resulted in their daughter’s
death. The Schroeders argue the district court erred in granting summary
judgment and determining their claims were precluded because the State was
immune from liability under statutory public duty and snow and ice
immunities. We conclude the district court properly determined statutory
immunity precluded the Schroeders’ claims. We affirm.

                                         I

[¶2] On January 8, 2017, Brooke Schroeder was driving a vehicle eastbound
on Interstate 94 in Barnes County. Before crossing an overpass at 109th
Avenue Southeast, the vehicle drifted out of the eastbound passing lane, hit a
snowbank adjacent to the guardrail on the overpass, and vaulted over the
guardrail. Brooke Schroeder was injured in the accident and died.

[¶3] The Schroeders sued the State for economic and non-economic damages,
alleging the State’s negligence or gross negligence in performing its winter
road maintenance and snow removal obligations caused the accident, Brooke
Schroeder’s injuries, and ultimately her death. They claimed the snowbank
adjacent to the guardrail eliminated any safety or protection provided by the
guardrail and created an unreasonably dangerous condition.

[¶4] The State moved for summary judgment, arguing various immunities
apply, including the public duty and snow and ice immunities under N.D.C.C.
§ 32-12.2-02(3)(f) and (i), which preclude a finding of liability on the part of the
State or its employees. The State claimed it may not be held liable for a claim
caused by the performance or nonperformance of a public duty, in this case the
duty to remove snow or ice from the roadway and adjacent guardrail. The State
also claimed the narrow exception allowing claims resulting from snow or ice

                                         1
conditions affirmatively caused by a negligent act of a state employee did not
apply because the failure to remove snow or ice is a passive omission and not
an affirmative act. The Schroeders opposed the motion, arguing none of the
immunities apply to this action.

[¶5] After a hearing, the district court granted the State’s motion. The court
ruled the facts were “not effectively in dispute.” The court concluded the State
has a public duty to maintain the highway system, the performance of the duty
to keep the highways in good and safe condition is an act for which the State
may not be held liable under N.D.C.C. § 32-12.2-02(3)(f), and if the accident
was caused by the plowing of roads to maintain them after winter weather,
then the State is immune to any liability because it was caused by the
performance of a public duty. The court also considered whether there was
immunity under N.D.C.C. § 32-12.2-02(3)(i) because the claim resulted from
snow or ice conditions on a highway. The court explained:

      Either: (1) the accident was caused by plowing of the snow and
      chemicals off the road onto the shoulder where it formed into the
      hardened snowbank, in which case the State (and employees) are
      immune as clearing the roadways [is] a public duty; or (2) the
      accident was caused by a negligent omission by the State in failing
      to remove the condition caused by the performance of that duty, in
      which case the snow and ice immunity applies because the danger
      was not created by an “affirmative” act, but rather the failure to
      do an act to remove the danger. It is perhaps more appropriate to
      state that the allegedly negligent act which led to the accident was
      the failure to clear the guardrail. In either case, the State is
      immune.

The court concluded the State was immune to liability under any viable theory
of liability presented. Judgment was entered dismissing the Schroeders’
complaint with prejudice.

                                      II

[¶6] Our standard for reviewing summary judgments is well-established:




                                       2
             Summary judgment is a procedural device under
      N.D.R.Civ.P. 56(c) for promptly resolving a controversy on the
      merits without a trial if there are no genuine issues of material
      fact or inferences that can reasonably be drawn from undisputed
      facts, or if the only issues to be resolved are questions of law. The
      party seeking summary judgment must demonstrate there are no
      genuine issues of material fact and the case is appropriate for
      judgment as a matter of law. In deciding whether the district court
      appropriately granted summary judgment, we view the evidence
      in the light most favorable to the opposing party, giving that party
      the benefit of all favorable inferences which can reasonably be
      drawn from the record. A party opposing a motion for summary
      judgment cannot simply rely on the pleadings or on unsupported
      conclusory allegations. Rather, a party opposing a summary
      judgment motion must present competent admissible evidence by
      affidavit or other comparable means that raises an issue of
      material fact and must, if appropriate, draw the court’s attention
      to relevant evidence in the record raising an issue of material fact.
      When reasonable persons can reach only one conclusion from the
      evidence, a question of fact may become a matter of law for the
      court to decide. A district court’s decision on summary judgment is
      a question of law that we review de novo on the record.

Devore v. Am. Eagle Energy Corp., 2020 ND 23, ¶ 10, 937 N.W.2d 503 (quoting
Brock v. Price, 2019 ND 240, ¶ 10, 934 N.W.2d 5). Generally, negligence actions
involve questions of fact and are inappropriate for summary judgment. Bjerk
v. Anderson, 2018 ND 124, ¶ 10, 911 N.W.2d 343. “Issues of fact may become
issues of law if reasonable persons could reach only one conclusion from the
facts.” Id. (quoting APM, LLLP v. TCI Ins. Agency, Inc., 2016 ND 66, ¶ 8, 877
N.W.2d 34).

[¶7] Under N.D.C.C. § 32-12.2-02(3), the State and state employees may not
be held liable for any of the following claims:

      f. A claim relating to injury directly or indirectly caused by the
      performance or nonperformance of a public duty, including:
             (1) Inspecting, licensing, approving, mitigating, warning,
             abating, or failing to so act regarding compliance with or the
             violation of any law, rule, regulation, or any condition
             affecting health or safety.

                                       3
             (2) Enforcing, monitoring, or failing to enforce or monitor
             conditions of sentencing, parole, probation, or juvenile
             supervision.
             (3) Providing or failing to provide law enforcement services
             in the ordinary course of a state’s law enforcement
             operations.
      ....
      i. A claim resulting from snow or ice conditions, water, or debris
      on a highway or on a public sidewalk that does not abut a state-
      owned building or parking lot, except when the condition is
      affirmatively caused by the negligent act of a state employee.

[¶8] Statutory interpretation is a question of law, which is fully reviewable
on appeal. Baker v. Autos, Inc., 2019 ND 82, ¶ 10, 924 N.W.2d 441. The primary
objective in interpreting a statute is to determine the legislature’s intent. Id.
We give words their plain, ordinary, and commonly understood meaning,
unless specifically defined or contrary intention plainly appears. N.D.C.C. § 1-
02-02. Statutes are construed as a whole and harmonized to give meaning to
related provisions. Baker, at ¶ 10. We give meaning to each word, phrase, and
sentence. Schulke v. Panos, 2020 ND 53, ¶ 8, 940 N.W.2d 303. When we
interpret statutes related to the same subject matter, we construe the statutes
to give effect to both. Id. If a general provision in a statute conflicts with a
special provision in the same statute or another statute, we construe the two
provisions to give effect to both, if possible, but if the conflict is irreconcilable,
then the special provision controls the general provision and is construed as an
exception to the general provision. N.D.C.C. § 1-02-07.

                                          A

[¶9] The Schroeders argue public duty immunity under N.D.C.C. § 32-12.2-
02(3)(f) does not apply because the statute defines a number of specific duties
the immunity covers and nothing in the statute indicates it is intended to cover
road maintenance. They also contend the immunity should be limited to those
duties in which the State has a unique duty to its citizens.

[¶10] The plain language of N.D.C.C. § 32-12.2-02(3)(f) states the State is not
liable for a claim relating to injury directly or indirectly caused by the


                                          4
performance or nonperformance of a public duty, including three specifically
stated public duties. It does not include any language limiting the immunity to
those three defined duties; rather, it states that it includes those listed duties.
The word “including” “typically indicates a partial list.” Black’s Law Dictionary
912 (11th ed. 2019). Section 32-12.2-02(3)(f), N.D.C.C., gives a partial list of
public duties the State may not be held liable for performing, but the immunity
is not limited to those public duties specifically listed.

[¶11] Section 32-12.2-02(3)(g), N.D.C.C., specifically limits the public duty
immunity by stating, “‘Public duty’ does not include action of the state or a
state employee under circumstances in which a special relationship can be
established between the state and the injured party.” The statute provides four
elements to determine whether a special relationship exists. Id. The
Schroeders do not allege that a special relationship existed or that this
exception to the public duty immunity applies.

[¶12] The Schroeders claim the public duty immunity should apply only when
the public entity has a unique duty to the general public and it should not apply
if that duty is the same for every person under the law. Citing Fast v. State,
2004 ND 111, 680 N.W.2d 265, the Schroeders claim every person has a duty
to avoid creating unreasonably dangerous hazards and a duty to use
reasonable care in their activities, these duties are not unique to the State,
everyone is liable for snow removal that creates an unreasonably dangerous
hazardous condition, and therefore the public duty immunity does not apply.

[¶13] Under N.D.C.C. § 24-03-02, the director of the Department of
Transportation is responsible for the maintenance, protection, and control
of the state highway system, and “shall patrol and keep said system in good
and safe condition for general public use.” The state highway system is “the
system of state principal roads designated by the director of the department,
the responsibility for which is lodged in the department.” N.D.C.C. § 24-01-
01.1(45). The State and the Department have a duty to maintain Interstate 94
and keep it in good and safe condition for general public use. We need not
decide whether the public duty immunity applies only when the public entity
has a unique duty to the general public, because maintaining the state


                                        5
highway system in a safe condition is a public duty that is unique to the state
department of transportation.

[¶14] In Fast, the plaintiffs brought a negligence action against the State,
alleging negligence for failing to properly remove snow and ice accumulations
from the sidewalk on a college campus and failing to warn individuals of the
hazardous condition. Fast, 2004 ND 111, ¶ 3, 680 N.W.2d 265. The plaintiffs
claimed the State was liable because it was aware water pooled in a low area
of the sidewalk and froze, which created a dangerous situation. Id. at ¶ 12.
This Court affirmed the summary judgment dismissal, holding there was no
evidence in the record from which a reasonable fact finder could find the State
liable. Id. We noted N.D.C.C. § 32-12.2-02(1) states, “The state may only be
held liable for money damages for . . . an injury caused from some condition or
use of tangible property under circumstances in which the state, if a private
person, would be liable to the claimant.” Fast, at ¶ 8. We said landowners have
a general duty to maintain their property in reasonably safe condition in view
of all the circumstances. Id. We held the record did not support the plaintiff’s
claim she fell in the area of pooled ice, and the knowledge that melting snow
may run onto the sidewalk and freeze was not enough to expose the landowner
to liability. Id. at ¶ 12. We further said it is desirable for landowners to remove
snow from sidewalks but landowners should not be liable for snow removal
efforts that do not create an unreasonably dangerous or more hazardous
condition. Id. We held, given the climate in this state, it would be unreasonable
and unduly burdensome to hold the State liable without some further act or
omission creating an unreasonably dangerous condition. Id.

[¶15] This case is different from Fast. This Court noted in Fast that the parties
were not relying upon the statutory snow and ice immunity. Fast, 2004 ND
111, ¶ 12, 680 N.W.2d 265; see also N.D.C.C. § 32-12.2-02(3)(f) (2003) (snow
and ice immunity). The public duty immunity was not included in the statute
at that time and was not applied in that case. Here, the State asserted various
immunities apply, including the public duty and snow and ice immunities
under N.D.C.C. § 32-12.2-02(3)(f) and (i). The State’s duty to maintain the
interstate is unique to the State, and the public duty immunity applies,



                                        6
precluding a claim against the State for injuries directly or indirectly caused
by the performance or nonperformance of that duty.

                                         B

[¶16] The Schroeders argue the district court erred in determining the snow
and ice immunity applies and precludes their claims. They contend there is an
exception to the immunity if the snow or ice condition is caused by an
affirmative negligent act of a State employee and there are genuine issues of
material fact about whether the State was negligent in creating the snowbank
adjacent to the guardrail and also in failing to remove the snowbank. The
Schroeders claim the evidence was undisputed that the State’s actions created
the snowbank, and there was evidence from which reasonable inferences could
be made that the State could have removed the snowbank as it initially plowed
the road, that the snowbank was not hard, and that the State had the ability
to easily remove the snowbank.

[¶17] Section 32-12.2-02(3)(i), N.D.C.C., contains the snow and ice immunity
and states the State may not be held liable for “[a] claim resulting from snow
or ice conditions . . . on a highway . . . except when the condition is affirmatively
caused by the negligent act of a state employee.” The statute provides that the
State is immune from liability for claims resulting from snow or ice conditions
on a highway. The plain language of the statute also provides an exception to
the immunity, allowing a claim resulting from a snow or ice condition that was
affirmatively caused by a state employee’s negligent act. Our interpretation of
N.D.C.C. § 32-12.2-02(3)(i) is consistent with the interpretation of similar
statutes in other states. See, e.g., Porter v. Grant Cty. Bd. of Educ., 633 S.E.2d
38, 42 (W.Va. 2006); Koen v. Tschida, 493 N.W. 2d 126, 128 (Minn. Ct. App.
1992). Chapter 32-12.2, N.D.C.C., does not specifically define negligent act.
However, N.D.C.C. § 1-01-17 provides a general definition for different degrees
of negligence and states ordinary negligence is “the want of ordinary care and
diligence.”

[¶18] The record includes evidence about the Department’s policies at the time
of the accident related to plowing and snow removal. Undisputed evidence
established Department policy is for the plow operators to prioritize and focus

                                         7
first on clearing the lanes, shoulders, and ramps; after that is complete, then
plow operators clean any remaining areas, including remaining compacted
snow and ice on the roadway, ramps, stop sign areas, shoulders, and
guardrails; and complex cleanup operations requiring more resources are
scheduled as time and resources permit. Evidence established that cleaning
guardrails with a roadway underneath can be a complex operation because the
snow should not be pushed onto the roadway below. The Department’s 2016-
2017 Snow and Ice Control Manual states, “Snow should not be plowed over
the side of a bridge deck that has a roadway under the bridge. In this case,
snow should be pushed to the ends of the structure and then thrown down the
approach embankment.” Undisputed evidence established that cleaning a
guardrail with a roadway underneath requires additional resources, including
extra crew to reduce the roadway to a single lane or close it completely, and
may require special equipment and crew members trained to operate the
equipment.

[¶19] Viewing the evidence in the light most favorable to the Schroeders,
evidence exists that the snowbank was created at least in part through the
Department’s plowing activities. The record contains deposition testimony
from Keith Nelson, the Department’s district supervisor to the plow crew
responsible for the area of the interstate where the accident occurred. He
testified about the weather conditions prior to the accident, the Department’s
plowing operation, and how the snowbank was formed along the guardrail.
Nelson testified there was a freezing rain and ice event on December 25 and
26, which was about two weeks before the accident; it rained first and then
snowed and there were high, straight-line winds; a slush was created on the
road, and the Department employees continued plowing the road to keep the
main roadway clear; the snow was plowed into the guardrail as it fell, mixing
with the slush, and the mixture hardened and formed ice once temperatures
cooled. He also testified there were significant snow events between January 1
and 3, with about ten inches of snow on January 1 and an additional ten inches
of snow between January 2 and 3. He testified there were smaller amounts of
snow that fell each day on January 4, 5, and 6. He further testified that there
were colder temperatures and strong winds during this period, including
straight-line winds, which caused drifting and filling in of the lighter snow.

                                      8
[¶20] Nelson testified the snowbank consisted mostly of ice and was created
through the Department’s process of sanding and using brine on the roadway
during weather events prior to the accident. He testified that with the series
of snow events before the accident, at some point the plow operators could not
keep up and the snowbank became compacted. Nelson testified Department
employees were unable to remove the snowbank once it was created because it
was made mostly out of ice, the ice was pushed in between the wood posts and
the metal guardrail, and the guardrail would have been damaged or destroyed
by removing the ice. Nelson testified the snowbank adjacent to the guardrail
was hard, it could not be moved, and his plow operators told him they did not
dare plow it any further because their plows were starting to catch on the
snowbank. He testified that when a snowplow catches on a snowbank it can
break the plow’s wing, it can turn the plow sideways and send it through the
guardrail, and it can destroy the guardrail.

[¶21] Nelson testified they did not use a bulldozer to clear the snowbank
because they do not use a bulldozer on the road, they would have had to close
the adjacent lane of the interstate and go backwards against the flow of traffic,
and he did not believe it could be done without damaging the guardrail. There
was also testimony from Matthew Maresh, one of the plow operators, that a
Bobcat or a payloader could have cleared the snow and ice along the guardrail,
but payloaders are not used to clean ice along a guardrail because they would
have to go against the flow of traffic along the road with a shadow truck behind,
and with the levels of traffic on the interstate it is not safe; a bucket or a plow
going against the guardrail backwards can catch a ledge on the guardrail and
tear the guardrail or bend it or break or bend the bolts. He also testified that
the incline in the pavement makes the payloader slide into the guardrail,
which can damage the payloader and the guardrail, which weakens the
integrity of the guardrail. He testified that a Bobcat or payloader was not used
to clean out the hard snow along the guardrail because it was not safe with the
level of traffic on that area of the interstate. He also testified that he has never
closed a lane of traffic on the interstate to remove snow, that it takes four or
five people to set up and complete a lane closure to remove snow from a section
of the interstate, and that it takes them about a half a day.



                                         9
[¶22] Considering the evidence in the light most favorable to the Schroeders,
the snow or ice condition along the guardrail was not naturally occurring.
Evidence exists that the snow or ice condition was affirmatively caused by the
State’s actions plowing the road. However, the evidence and reasonable
inferences from the evidence do not show that the State employees’ actions
were negligent. There was no evidence or allegation that the Department
employees did not comply with the Department’s snow removal policies. The
snow and ice immunity protects the State from liability from claims resulting
from conditions caused by the natural result or effect of snowplowing when the
plowing is done pursuant to Department policies. See In re Alexandria Accident
of Feb. 8, 1994, 561 N.W.2d 543, 549 (Minn. Ct. App. 1997).

[¶23] Furthermore, the negligent act must affirmatively cause the condition.
The failure to act—in this case the Schroeders contend the failure to remove
the snowbank was the negligent act—is not an affirmative act. An affirmative
act is one “[i]nvolving or requiring effort.” Black’s Law Dictionary, 73 (11th ed.
2019). The failure to remove the snowbank was not an affirmative act that
caused the condition.

[¶24] Minnesota has a similar snow and ice immunity statute, which provides
the State is not liable for “a loss caused by snow or ice conditions on a
highway . . . except when the condition is affirmatively caused by the negligent
acts of a state employee[.]” Minn. Stat. § 3.736(3)(d). Minnesota courts have
held that “statutory snow and ice immunity protects government entities from
liability for damages caused by the natural consequences of snow plowing when
the plowing was done pursuant to established snow-removal policies and the
claimants have shown no willful acts or malfeasance.” Alexandria Accident,
561 N.W.2d at 549. Minnesota courts interpreting and applying the snow and
ice immunity in cases with facts similar to those in this case have held the
State was immune from liability.

[¶25] In Norlander v. Norman’s Bar, 1999 WL 118628 (Minn. Ct. App. 1999),
the court considered whether the Minnesota statutory ice and snow immunity
applied in facts very similar to those in this case. In Norlander, the driver of a
vehicle died after the vehicle jumped a bridge rail on an interstate exit ramp.


                                       10
Id. at 1. The bridge rail was partially covered by a snowbank formed by
snowplow operators. Id. at 2. The court noted state procedures call for the
removal of snow and ice from the roadways in accordance with a policy of
prioritization, traveled portions of the road have highest priority, and clearing
snow from barriers along bridges and ramps is a secondary priority. Id. The
court stated there was a substantial snowstorm in the week prior to the
accident and the highest priority snow removal was performed, snow removal
was suspended for a period in accordance with state policy because the air
temperature became too cold, overtime work was limited to only the highest-
priority snow removal, and clearing snow from along bridge rails was a
complex process involving closing the roadway, scheduling several workers,
and using specialized equipment. Id. The court said the claimant had to show
an affirmative act of negligence, the state employees moved the snow pursuant
to established policies, and there was no evidence the snowbank was caused by
affirmative negligent acts of state employees plowing the roadway. Id. at 3.
The court concluded the state had snow and ice immunity from liability for the
accident and the district court did not err in granting summary judgment. Id.
at 3-4.

[¶26] In Hennes v. Patterson, 443 N.W.2d 198 (Minn. Ct. App. 1989), the court
also held ice and snow immunity applied and precluded liability. On December
20, 1983, a passenger in a car was killed and others were injured when the
driver lost control of the car on a bridge and the car “rocketed” up a pile of snow
packed against the guardrail and went over the side of the bridge. Id. at 200.
The court held the State was immune from liability. Id. at 204. The court said
there was no evidence the snowbank along the guardrail was created by a
negligent act of plowing the road, the plowing was done pursuant to state
policy, and therefore the State was immune from liability under the snow and
ice immunity for plowing the snow off the road and against the guardrail. Id.
at 203. The court also considered whether the State was negligent in failing to
remove the snowbank, and the court concluded the State was immune under
discretionary function immunity because the decision not to remove the
snowbank was made pursuant to state policies based on the considerations of
the public’s safety, limited equipment and workers, budget, and safety
concerns for workers. Id. The court held “the decision not to remove the

                                        11
snowbank along the bridge guardrail on the weekend was done pursuant to a
policy which balanced several factors, and is therefore the type of decision
which is immune from liability under the discretion function exception.” Id. at
204.

[¶27] Looking at the evidence in the light most favorable to the Schroeders,
the evidence does not raise a genuine issue of material fact that the snow or
ice condition was affirmatively caused by a State employee’s negligent act. The
snow and ice immunity applies and precludes the Schroeders’ claim. We
conclude the district court did not err in granting summary judgment.

                                     III

[¶28] We affirm the judgment.

[¶29] Jerod E. Tufte
      Lisa Fair McEvers
      Gerald W. VandeWalle
      Daniel J. Crothers
      Jon J. Jensen, C.J.




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