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Dave Roepke, Published June 13 2010

North Dakota Supreme Court rules bike stunt lawsuit was wrongly dismissed

A lawsuit against Fargo Public Schools filed after a student was injured riding his bike off a school stage was wrongly dismissed by a Cass County judge, the North Dakota Supreme Court has ruled.

The unanimous opinion released Thursday said the district can’t avoid liability by using a state law meant to protect landowners who open their property up for recreational use.

Mike Unger, an attorney who represented the boy’s family, said the opinion is an affirmation that schools are responsible for the safety of their students and that the state law designed to encourage land use does not let them off the hook.

“In that sense, it’s an important decision,” he said.

Ron McLean, an attorney for the district, said it was not the first time the recreational-use law was used in a similar way.

But since Judge Steven McCullough dismissed the case against the school in 2008, the Supreme Court has held on multiple occasions that political subdivisions can’t use the law as a shield from personal-injury lawsuits, he said.

McLean said the district will defend against claims in the lawsuit. A new trial ordered by the decision won’t happen for at least six months, he said.

Lowell Wolff, spokesman for Fargo Public Schools, said district officials will not comment on the case.

The ruling stems from a lawsuit brought in 2007 in the wake of an accident at Discovery Middle School in 2004. A 15-year-old boy was injured while trying to ride a bicycle off an auditorium stage 3½ to 4 feet high. He was practicing the stunt for an annual event about the 1960s. The bike jump had been done at a prior rendition of “’60s Day.”

The student, referred to in court records as M.M., didn’t receive formal permission to do the stunt, and when the student told a history teacher about his plans, she told him it was “not a good idea,” court records state.

Shortly after classes were over on May 6, 2004, the boy and a friend entered the auditorium through an unlocked side door. They both rode bikes off the stage, but M.M. crashed and suffered serious head injuries.

The lawsuit sought to recover roughly $250,000 in hospital bills, Unger said. The plaintiff continues to incur medical costs as a result of the injury, he said.

The boy’s family sued the district and the teacher, Eugenia Hart. McCullough also threw out part of the case against Hart, which was also reversed on appeal.

Hart, who’s since retired, won the portion of the case that went to trial in December 2008. A jury found she was not grossly negligent or reckless and didn’t commit any misconduct.

The boy’s father testified in that trial that Hart came to the hospital after the accident to say “she could have stopped it, should have stopped it, but did not and she took total responsibility for the accident,” according to court records.

Hart disputed his recollection of the conversation, according to court records.

In writing the 5-0 decision, Justice Daniel Crothers said the district might be able to defend itself in the lawsuit by arguing the plaintiff and his friend snuck into the auditorium.

But despite that, the decision to dismiss the case against the district before trial was incorrect, he said.

Readers can reach Forum reporter Dave Roepke at (701) 241-5535