Ms. Bartholomay sued Plains for wrongful death damages, alleging that it intentionally had exposed Mr. Bartholomay to unsafe working conditions.

Plains answered and claimed the lawsuit was barred by the exclusive remedy provisions of the Act.

Ms. Bartholomay responded that her lawsuit could proceed because, under the sole exception to employer immunity from civil liability under the Act, Mr. Bartholomay's injuries had been caused by Plains' “intentional act done with the conscious purpose of inflicting the injury.”

The trial court granted summary judgment dismissing the lawsuit, finding, as a matter of law, that Plains' alleged conduct did not rise to the level of an intentional act done with the conscious purpose of inflicting the injury.

Ms. Bartholomay appealed to the North Dakota Supreme Court, arguing that the trial court had erred in dismissing her action because she had presented evidence demonstrating that Plains had committed an intentional act with the conscious purpose of causing Mr. Bartholomay's accident, injuries, and eventual death.

The North Dakota Supreme Court's Decision

The court affirmed, ruling that the facts alleged did not provide a genuine issue of material fact to avoid the exclusive remedy provisions of the Act.

In its decision, the court explained that, viewed in the light most favorable to Ms. Bartholomay, the evidence showed that:

- Plains employed Mr. Bartholomay to work on top of railcars loading grain;

- The grain elevator in Sheldon was the only elevator managed by Plains that did not have fall protection for its employees;

- Plains intended to install a fall protection system at its Sheldon facility in 2012, but the project was delayed even though 570 railcars were loaded there in the year before Mr. Bartholomay's death;

- Installation of the fall protection system was delayed to allow for construction of a “track scale project”;

- Plains regularly received safety program documents from the Grain Dealers Association, including the “Grain Dealers Association Safety and Health Program, Railcar Loading Guidelines”;

- Following an inspection by a safety specialist with the association, the specialist informed Plains there was no fall protection in place at the Sheldon facility;

- After Mr. Bartholomay's accident, the Occupational Safety and Health Administration (“OSHA”) issued Plains two citations for “serious” violations, including the failure to have a fall protection system at the Sheldon facility; and

- OSHA's lead investigator of the accident said the violations were classified as “willful” because Plains “knew it was a hazard and provided no interim protection.”

The court then said that it agreed with the trial court's analysis of the evidence presented by Ms. Bartholomay, namely, that although there “very well may be an issue of whether [Plains] acted intentionally,” Ms. Bartholomay had not established evidence of any facts that demonstrated that Plains had “acted with a conscious purpose to cause [Mr.] Bartholomay's accident, injuries, and eventual death.”

The court concluded that because Ms. Bartholomay had not alleged sufficient facts to raise a genuine issue of material fact that Plains had engaged in an “intentional act with the conscious purpose of inflicting Jon Bartholomay's injuries,” the trial court had not erred in dismissing the action as a matter of law.

The case is Bartholomay v. Plains Grain & Agronomy, LLC, No. 20160030 (N.D. June 30, 2016). Attorneys involved include: Craig E. Johnson (argued) and Jared J. Hines (appeared), Fargo, N.D., for plaintiff and appellant; Barton J. Cahill, Moorhead, MN, for defendant and appellee.