Summary: Defendant moved for summary judgment on both of the claims asserted by plaintiffs. The court granted defendant's motion. Plaintiffs asserted claims of negligence and negligent infliction of emotional distress. Both claims require the plaintiffs to prove there is a duty of care owed. Since there was no relationship between plaintiffs and defendant, there was no duty of care owed, and consequently no negligence or negligent infliction of emotional distress.

Case Name: John North, et al. v. TransCor America, Inc.
Case Number: A3-00-72
Docket Number: 22
Date Filed: 12/29/00
Nature of Suit: 360

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHEASTERN DIVISION

MEMORANDUM AND ORDER

Plaintiffs commenced this action in federal court seeking damages for negligence and negligent infliction emotional distress suffered due to Kyle Bell escaping from defendant transport company. Defendant's motion for judgment on the pleadings is before the court. (Doc. # 9.) For the reasons articulated in this memorandum, the Court grants defendant's motion.

I. Background

On June 28, 1993 Jeanna North disappeared and was never found. In August 1999, after much investigation, Kyle Bell was tried and convicted of killing North and was sentenced to life in prison. The State of North Dakota hired Transcor, a private prison transportation company, to transport Kyle Bell ⁽¹⁾ to a maximum-security prison in Oregon to serve his North Dakota sentence there. The Transcor bus, having many other inmates on board with various destinations, took a circuitous route across the country, going from North Dakota to Nashville, Tennessee, and across the southern United States. Bell escaped from the bus on October 13, 1999, in Santa Rosa, New Mexico. Ultimately, Bell was recaptured. Jeanna North's mother, father and siblings initiated this action alleging negligence and negligent infliction of emotional distress against Transcor for allowing Bell to escape. Defendant argues the negligence claim fails because Transcor owed no legal duty to the North family and the claim for negligent infliction of emotional distress fails because the North family was not within the "zone of danger."

II. Discussion

Defendant moves for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Judgment on the pleadings should be granted only if the moving party clearly establishes that there are no material issues of fact and that it is entitled to judgment as a matter of law. Rule 12(c), Fed.R.Civ.P.

Since this is a diversity action, North Dakota substantive law applies. Kovarik v. American Family Insurance Group, 108 F.3d 962, 964 (8th Cir. 1997). In resolving issues of state law presented in this action, this Court is bound by the decisions of the North Dakota Supreme Court. Id. If the North Dakota Supreme Court has not spoken on these issues, this Court must attempt to predict what that court would decide if it were faced with them. Id.

Defendant argues it owed no duty to the North family and thus cannot be liable for damages suffered by the family. The North Dakota Supreme Court has said negligence "consists of a duty on the part of an allegedly negligent person to protect the plaintiff from injury, a failure to discharge the duty, and a resulting injury proximately caused by the breach of the duty. " Hurt v. Freeland, 589 N.W.2d 551, (N.D. 1999) (quoting Diegel v. City of West Fargo, 546 N.W.2d 367, 370 (N.D. 1996)). If no duty exists on the part of the defendant, there is no negligence. Id. Whether a duty exists is generally a preliminary question of law for the court to decide. Id.

The North Dakota Supreme Court has not specifically analyzed what duty is owed by a party charged with holding a criminal. Other courts, however, have addressed this duty issue in a similar context, where a criminal has escaped from custody and killed or injured someone. See Department of Corrections v. Vann, 650 So.2d 658, 659 (Fla 1^st Dist. Ct. App. 1995) (finding no common law duty owed by department of corrections to citizen who was killed by escaped convict); Massey v. Department of Corrections, 451 N.W.2d 869, 871 (Mich. Ct. App. 1989) (holding defendants did not owe a duty of care separate from the duty owed to the general public where escaped prisoner killed plaintiff's mother and two sisters); Solano v. Goff, 985 P.2d 53, 55 (Colo Ct. App. 1999) (finding no duty owed from sheriff to work crew supervisor killed by escaped inmate); Chivas v. Koehler, 453 N.W.2d 264, 268 (Mich. App. 1990) (holding police officers owed no special duty to decedent killed by escaped inmates).

Under the rationale of these cases, the custodian or supervisor of an inmate has a general duty to the public. See, e.g., Chivas, 453 N.W.2d at 268. However, in order for the defendant to be liable, there must be more than a general duty; there must be a special relationship between defendant and plaintiff. See id. In determining whether the custodians of an escaped prisoner owed a duty to a third party injured following an escape, the court in Chivas stated, "[o]nly where a special relationship between the parties exists which the law recognizes and defines as including a duty to conform to a particular standard of conduct toward another will a duty be recognized." Id.

There is no such relationship here distinguishing plaintiffs from the general public. Defendant had contracted with the State of North Dakota to transport inmates, but there was no agreement between defendant and plaintiffs. Plaintiffs may argue the fact the escapee had previously killed their relative makes the escape of Bell "special" to them. However, it is not reasonable to find there is a relationship at law created between a custodian and a victim's family because of crimes the prisoner committed before incarceration. Since there is no relationship, there is no duty, and consequently no negligence by the defendant.

Plaintiffs, in their reply brief, insist that while they had no contract with defendant, they were a third-party beneficiary of the contract made between the State of North Dakota and Transcor, and thus a duty was owed from defendant to plaintiff. The court notes that plaintiffs did not plead a breach of contract claim in their complaint. Nonetheless, this claim can be determined now as a matter of law.

Section 9-02-04, N.D.C.C., provides, "A contract made expressly for the benefit of a third person may be enforced by him at any time before the parties thereto rescind it." In Apache Corp. v. MDU Resources Group, Inc., 603 N.W.2d 891, 894 (N.D. 1999), a case cited by plaintiff, the North Dakota Supreme Court said:

To enforce a contract between two others, a third party must have been intended by the contracting parties to be benefited by the contract. Id. Merely because a third party may derive a benefit, purely incidental and not contemplated by the contracting parties, from the performance of a contract does not entitle him to sue to enforce the contract.

Plaintiffs clearly do not fall within the ambit of the statute, as there is no claim the State of North Dakota and Transcor contracted "expressly for the benefit of" plaintiffs. See N.D.C.C. § 9-02-04. While plaintiffs assert the parties should have contemplated the benefit to them in contracting, there is no claim or evidence they did. Although plaintiffs may have received some incidental benefit not contemplated by the parties, this is not enough under the law to entitle plaintiffs to sue under the contract. See Apache, 603 N.W.2d 891, 894 (N.D. 1999)

A claim for negligent infliction of emotional distress, like all negligence claims, also requires the plaintiff to prove there is a duty of care owed. ⁽²⁾ See, e.g., Snyder Medical Service Corp. of Eastern Washington, 988 P.2d 1023 (Wash.App. 1999). As seen above, the facts of this case demonstrate defendant owed no duty of care to plaintiff. Thus, both the negligence claim and the negligent infliction of emotional distress claim must be dismissed because defendant owed no legal duty to plaintiffs.

IT IS ORDERED:

That defendant's motion for judgment on the pleadings (doc. #9) is granted. Plaintiff's Complaint is dismissed, with prejudice, for failure to state a claim upon which relief may be granted.

Dated: December _____, 2000.

Karen K. Klein
United States Magistrate Judge

1. In its answer, defendant asserts the State of North Dakota identified Kyle Bell by the alias "Jonathan Shaw," and that defendant was not made aware of Bell's real name, the crimes he had been convicted of or his history of escape.

2. Defendant asserted in its motion for judgment on the pleadings that the negligent infliction of emotional distress claim should be dismissed because plaintiffs were not within the "zone of danger." The North Dakota Supreme Court dismissed a negligent infliction of emotional distress claim because plaintiff, who witnessed an injury to her new-born child, was not within the "zone of danger." Whetham v. Bismarck Hosp., 197 N.W.2d 678, 684 (N.D. 1972). This Court is unsure whether the North Dakota Supreme Court would follow a "zone of danger" analysis in all negligent infliction of emotional distress cases or only in those cases involving the witnessing of an injury. This Court is certain, however, the North Dakota Supreme Court, under the facts of this case, would find defendant owes plaintiff no duty of care.