Legal Memorandum: City's Tort Liability in ND

Issue: Can a city in North Dakota be held liable in tort for the negligent conveyance of real property?

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North Dakota law provides that a political subdivision may be held liable for injuries “proximately caused by the negligence or wrongful act or omission of any employee . . . under circumstances in which the employee would be personally liable to a claimant in accordance with the laws of this state.”  N.D.C.C. § 32-12.1-03.  A political subdivision’s liability is limited to $250,000 per person and $500,000 for three or more persons per occurrence.  Id.  

No North Dakota authority was found that addresses a cause of action for the negligent conveyance of property.*FN1  North Dakota courts do, however, recognize a cause of action for negligent misrepresentation.  In Bourgois v. Montana-Dakota Utils., 1991 N.D. 42, 466 N.W.2d 813 (1991), the court held that a negligently made misrepresentation was sufficient to show fraud.  The court concluded that a statutory action for fraud as set out in N.D.C.C. § 9-03-08 could be based on a “positive assertion, in a manner not warranted by the person making it, of that which is not true though he believes it to be true.”  See, N.D.C.C. § 9-03-08(2).  A plaintiff may show fraud without showing an actual intent to deceive.  Bourgois, 466 N.W.2d at 818.

As a general rule, a quitclaim deed conveys only the grantor’s interest, if any, in property, and not the property itself.  Carkuff v. Balmer, 2011 N.D. 60, 795 N.W.2d 303, 307 (2011).  On the other hand, if the entire instrument shows […]