author: KAPSNER, Justice.

text:
    2001 ND 139
    Clifton RODENBURG and Donna Rodenburg, Plaintiffs and Appellants, v. FARGO-MOORHEAD YOUNG MEN’S CHRISTIAN ASSOCIATION, and Patrick Parker, Defendants and Appellees, and William J. Hart, Mark Lathrop and Amelia Oponski, Defendants.
    No. 20000279.
    Supreme Court of North Dakota.
    July 23, 2001.
    Rehearing Denied Sept. 5, 2001.

      Clifton Rodenburg (argued), pro se, Fargo, ND, for plaintiffs and appellants.
    Calvin N. Rolfson (appeared), Rolfson Schulz Lervick & Geiermann Law Offices, Bismarck, ND, for plaintiffs and appellants.
    Duane H. Ilvedson (argued) and Joel M. Fremstad (on brief), Nilles, Hansen & Davies, Ltd., Fargo, ND, for defendant and appellee Fargo-Moorhead Young Men’s Christian Association.
    Aaron J. Dorrheim (argued) and Thomas R. Olson (on brief), Jeffries, Olson & Flom, PA, Moorhead, MN, for defendant and appellee Patrick Parker.
   KAPSNER, Justice.

[¶ 1] Clifton and Donna Rodenburg appealed a district court judgment, an order denying their motion for a new trial, and “every other ruling of the court adverse to the plaintiffs.” We reverse the judgment dismissing Rodenburgs’ action against Patrick Parker. We affirm in all other respects.

[¶ 2] While in the weight room of the Fargo-Moorhead Young Men’s Christian Association (‘YMCA”) on March 26, 1996, Clifton Rodenburg was injured when William J. Hart shot him with a .357 magnum revolver. Rodenburgs sued Hart for damages. In an amended complaint, Roden-burgs added the YMCA as a defendant, alleging in part: “The YMCA negligently failed to take reasonable measures to prevent Hart from gaining access to the YMCA and negligently failed to take reasonable precautions to provide for the safety of the YMCA’s patrons, including Clifton Rodenburg.” In a second amended complaint, Rodenburgs added Mark La-throp, Amelia Oponski, and Patrick Parker as defendants. Rodenburgs alleged:

32. Lathrop and Oponski, in breach of this duty, negligently and carelessly:
a. obtained Hart’s release from jail by posting bail for him,
b. allowed Hart to possess the .357 magnum revolver that was in their possession,
c. transported Hart to Fargo, and
d. failed to warn the authorities and/or Clifton Rodenburg of Hart’s risk of assault upon Clifton Rodenburg and others.
33. By breach of their duty, Lathrop and Oponski aided, enabled, and facilitated Hart’s assault and battery of Clifton Rodenburg.

Rodenburgs alleged Parker owned the revolver and ammunition Hart used to shoot Clifton Rodenburg and alleged:

41. Parker, in breach of this duty, negligently and carelessly entrusted his .357 magnum revolver and ammunition to be used in an enterprise where Clifton Rodenburg was shot with this firearm and ammunition by Hart.... Parker, by providing the .357 magnum revolver and ammunition, aided, enabled, and facilitated Hart’s shooting of Rodenburg.

[¶ 3] Rodenburgs moved for partial summary judgment striking part of the YMCA’s answer, “on the grounds that, under North Dakota comparative fault law, liability may not be apportioned between an intentional tortfeasor ... and a negligent tortfeasor ... whose liability is predicated upon breaching a duty to protect, when both are proximate causes of an indivisible injury.” The court denied Ro-denburgs’ motion and their subsequent motion for reconsideration.

[¶ 4] Rodenburgs moved to strike the part of Parker’s answer alleging the trial court lacked personal jurisdiction over him. The trial court denied Rodenburgs’ motion to strike, and Parker moved to dismiss the action against him because the court lacked personal jurisdiction. The trial court found “the contacts of defendant Patrick Parker with the State of North Dakota are so minimal such that the exercise of jurisdiction over him in the State of North Dakota offends traditional notions of fair play and substantial justice” and granted Parker’s motion to dismiss on May 19, 1999. On June 16, 1999, this Court denied Rodenburgs’ application for a supervisory writ. Upon Rodenburgs’ motion, the trial court ordered their action against Lathrop and Oponski dismissed without prejudice.

[¶ 5] After a trial, the jury returned a special verdict finding the YMCA was not negligent, attributing to Hart 100% of the fault proximately causing damages to Ro-denburgs, and fixing the amount of damages to Rodenburgs. Judgment against Hart and dismissing Rodenburgs’ corn-plaint against the YMCA was entered on June 1, 2000. The court denied Roden-burgs’ motion for a new trial on the grounds of erroneous exclusion of evidence, erroneous jury instructions, and on the ground that the jury’s verdict was contrary to the weight of the evidence. Rodenburgs appealed.

I

[¶ 6] Rodenburgs contend: “The Jury’s Verdict That the YMCA Was Not Negligent Is Clearly Contrary to the Evidence, and the Trial Court’s Denial of the New Trial Motion Was an Abuse of Discretion.” Rodenburgs contend the evidence shows “the YMCA failed to take the most basic steps to protect its members in the face of a clear and substantial risk of harm.”

[¶ 7] We uphold special verdicts whenever possible and set aside a special verdict only if it is perverse and clearly contrary to the evidence. Phillips v. Dickinson Mgmt., Inc., 1998 ND 123, ¶ 6, 580 N.W.2d 148. In reviewing a jury’s findings, “we view the evidence in the light most favorable to the verdict and determine only if substantial evidence supports it.” Ingalls v. Paul Revere Life Ins. Group, 1997 ND 43, ¶ 24, 561 N.W.2d 273. A motion for a new trial under N.D.R.Civ.P. 59(b)(6) is addressed to the sound discretion of the trial court. Braunberger v. Interstate Eng’g, Inc., 2000 ND 45, ¶ 7, 607 N.W.2d 904. “A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner.” Id. In reviewing a trial court’s decision on a motion for a new trial based on insufficiency of the evidence, we examine the evidence in the light most favorable to the verdict to determine if there is sufficient evidence to justify the verdict. Kreidt v. Burlington Northern R.R., 2000 ND 150, ¶ 19, 615 N.W.2d 153.

[¶ 8] Rodenburgs rely on several evidentiary items supporting their argument the YMCA knew of a risk of harm Hart posed to Clifton Rodenburg and failed to take reasonable steps to protect him from Hart. There was evidence, however, supporting the YMCA’s argument it acted reasonably under the circumstances in light of its knowledge about Hart. The trial court observed in considering Roden-burgs’ motion for new trial, “[t]he evidence in this case was extremely close on the question of negligence.”

[¶ 9] Paul Finstad, the executive director of the YMCA, testified: (1) in a telephone conversation on February 22, 1996, Rodenburg told him Hart “had been exhibiting some bizarre behavior, that at times he could be very friendly, and sometimes he could be very difficult. I believe he also told me that he had thrown a weight at him,” and that Ed Renner and Bill Engelhardt “also had concerns about” Hart, and Rodenburg encouraged Finstad to consider taking away Hart’s membership; (2) he did not recall Rodenburg telling him Hart threatened to kill Roden-burg; (3) in that conversation, Finstad told Rodenburg, “before I make a decision on what we needed to do, I wanted to be able to try and talk to both parties in regard to what had happened;” (4) he could suspend or revoke a member’s privileges, which could be flagged on the computer; and (5) on March 26, 1996, there were no flags or restrictions on Hart’s membership. Fin-stad testified if he “would kick somebody out of the Y every time a member ... would come in and tell me they should be kicked out, boy, that’s — I could be doing that full time” and that, when he learns a member has threatened or assaulted another member, he will usually try “to first visit with both parties and hear both sides of the story.” Finstad testified: (1) he talked to Renner and Engelhardt after he talked to Rodenburg on February 22; (2) he called the Sioux Falls Y, where Hart had been a member, and learned they had no problems with Hart; (3) on February 22 he talked to Maurice Brandt of the Fargo police department, who said “we should be careful in dealing with a person like this, and that, you know, we pursue it with a common sense approach;” and (4) he tried to call Hart, but his phone was disconnected. Finstad further testified: (1) on February 22, the sheriffs department said Hart was going to be arrested; (2) he knew Hart had been arrested February 23 and extradited to Iowa on February 28; (3) he thought the situation was taken care of when Hart was arrested and thinks that was Rodenburg’s understanding, too; (4) no member who worked out when Hart was there ever complained to him about Hart before Rodenburg did; (5) he did not recall Rodenburg telling him Hart had aggravated assault charges against him; (6) he did not know Roden-burg had sued Hart the day Hart was extradited; (7) he did not feel Hart was a serious threat to Rodenburg; and (8) after the shooting, he talked to Rodenburg in the hospital and “Rodenburg indicated to me that he knew [Hart] was out of prison, but that he certainly didn’t expect him to do something like this.”

[¶ 10] Maurice Brandt, a Fargo police officer since 1973, testified that, before the shooting, he had a telephone conference with Finstad about what to do about a man intimidating others in the weight room. He testified about what to do in such a case:

Certainly, when someone calls with a problem like Mr. Finstad indicated he had, we usually ask them if — first of all, does the person who’s supposedly causing the problems ... aware that there is a problem. And the only way to make sure that’s done is to speak to them and tell them that there has been a complaint about them, tell them what the complaint is. Then you need to let them know that they can’t continue along that line and there will be consequences if they do. That’s a pretty standard way to handle that.

[¶ 11] From our review of the evidence in the light most favorable to the verdict, we conclude there is substantial evidence supporting the verdict and the trial court did not abuse its discretion in denying Rodenburgs’ motion for new trial on the ground of insufficiency of the evidence to sustain the verdict.

II

[¶ 12] The July 9, 1999, judgment dismissing Parker specified it was without prejudice. Because either side may commence another action, a dismissal without prejudice is ordinarily not appeal-able. Runck v. Brakke, 421 N.W.2d 487, 488 (N.D.1988). However, a dismissal without prejudice may be final and appeal-able if the plaintiff cannot cure the defect that led to dismissal, Lopez v. City of Needles, 95 F.3d 20, 22 (9th Cir.1996), or if the dismissal has the practical effect of terminating the litigation in the plaintiffs chosen forum, Triple Quest, Inc. v. Cleveland Gear Co., 2001 ND 101, ¶¶ 8-10, 627 N.W.2d 379. Here, the trial court’s judgment effectively forecloses litigation in the courts of this state. The dismissal is, therefore, appealable.

[¶ 13] Rodenburgs contend the trial court improperly held it lacked personal jurisdiction over Parker. Parker contends the trial court properly concluded it lacked personal jurisdiction over him. Parker and the YMCA both contend Rodenburgs may not now raise the issue because they did not raise it in their motion for new trial.

[¶ 14] We have held a party who moves for a new trial is restricted on appeal to the issues raised in the motion for new trial. Paxton v. Wiebe, 1998 ND 169, ¶ 26, 584 N.W.2d 72; Andrews v. O’Hearn, 387 N.W.2d 716, 728 (N.D.1986). “A new trial is a reexamination of an issue of fact in the same court, after a trial and decision by a jury or court or by a referee.” N.D.R.Civ.P. 59(a). Parker was dismissed before trial. Thus, as in Berg v. Burke, 77 N.D. 913, 918, 46 N.W.2d 786, 789 (1951), “there has never been an examination of an issue of fact between” Roden-burgs and Parker. When a party has been dismissed before trial and a trial is held with the remaining parties, the trial court’s action in dismissing one of the parties before trial is “not a proper ground for a motion for a new trial.” Id. Thus, we are not persuaded decisions like Paxton and Andrews preclude Rodenburgs from raising the issue in this appeal.

[¶ 15] In determining if it has personal jurisdiction, a court must first determine if “the forum state’s long-arm statute confers jurisdiction over the nonresident defendant,” and, if it does, the court must determine if “the exercise of personal jurisdiction over the non-resident defendant comports with due process.” Austad Co. v. Pennie & Edmonds, 823 F.2d 223, 225 (8th Cir.1987). For a court to exercise personal jurisdiction over a nonresident defendant, the defendant must have such minimum contacts with the forum state that maintenance of a suit against that defendant would not offend traditional notions of fair play and substantial justice. Guinness Import Co. v. Mark VII Distributors, Inc., 153 F.3d 607, 614 (8th Cir.1998).

[¶ 16] Rule 4(b), N.D.R.Civ.P., provides, in part:

(2) Personal Jurisdiction Based Upon Contacts. A court of this state may exercise personal jurisdiction over a person who acts directly or by an agent as to any claim for relief arising from the person’s having such contact with this state that the exercise of personal jurisdiction over the person does not offend against traditional notions of justice or fair play or the due process of law, under one or more of the following circumstances:
(C) committing a tort within or without this state causing injury to another person or property within this state....

Thus, our long-arm provision is broad enough to provide jurisdiction over nonresidents.

[¶ 17] Whether a court maintains personal jurisdiction over a party is a question of law. LSI Indus. Inc. v. Hubbell Lighting, Inc., 232 F.3d 1369, 1371 (Fed.Cir.2000). The standard of review applicable to district court decisions regarding personal jurisdiction is clear error for factual findings and de novo for legal conclusions. U.S. Titan, Inc. v. Guangzhou Zhen Hua Shipping Co., Ltd., 241 F.3d 135, 151 (2d Cir.2001). “To defeat a motion to dismiss for lack of personal jurisdiction, the nonmoving party need only make a prima facie showing of jurisdiction.” Dakota Indus., Inc. v. Dakota Sportswear, Inc., 946 F.2d 1384, 1387 (8th Cir.1991). “If the district court does not hold a hearing and instead relies on pleadings and affidavits, as it did here, the court must look at the facts in the light most favorable to the nonmoving party.” Id.

[¶ 18] Foreseeability alone has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause, and a state may not exercise in personam jurisdiction over a nonresident based on one isolated fortuitous circumstance. World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). “[T]he foreseeability that is critical to due process analysis ... is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” Id. at 297, 100 S.Ct. 559. The fact that only the injury occurred within a state does not preclude that state’s courts from subjecting a nonresident to their jurisdiction. Tavoularis v. Womer, 123 N.H. 423, 462 A.2d 110, 112 (1983). When a resident of one state loans another person an automobile for use in another state, courts have held an injury in that state is not fortuitous, the loaner reasonably should anticipate being brought into court in the injury state, and the entrustment satisfies the constitutional minimum contacts requirement for the courts in the injury state to exercise personal jurisdiction over the person who loaned the automobile. Tavoularis, 462 A.2d at 113-14; Hart v. Bates, 897 F.Supp. 710, 715 (E.D.N.Y.1995):

[¶ 19] In other contexts, as well, nonresidents’ actions have been held to provide a state’s courts with personal jurisdiction over nonresidents. Persons whose “intentional, and allegedly tortious, actions were expressly aimed at California ... must ‘reasonably anticipate being haled into court there.’ ” Calder v. Jones, 465 U.S. 783, 789-90, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984) (quoting World Wide Volkswagen Corp., 444 U.S. at 297, 100 S.Ct. 559). “We hold that jurisdiction over petitioners in California is proper because of their intentional conduct in Florida calculated to cause injury ... in California.” Calder, 465 U.S. at 791, 104 S.Ct. 1482.

Where a forum state seeks specific personal jurisdiction over a non-resident defendant, due process is satisfied if “the defendant has ‘purposely directed’ his activities at residents of the forum ... and the litigation results from alleged injuries that ‘arise out of or relate to’ those activities.”

Wessels, Arnold & Henderson v. National Med. Waste, Inc., 65 F.3d 1427, 1432 (8th Cir.1995) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). Thus, if nonresidents “purposefully directed their activities towards North Dakota,” a North Dakota court may be justified in exercising personal jurisdiction over them. Falkirk Mining Co. v. Japan Steel Works, Ltd., 906 F.2d 369, 375 (8th Cir.1990).

[¶ 20] Rodenburgs summarized in their brief Parker’s role in supplying the gun with which Hart shot Clifton Roden-burg:

After Hart had been released on bail in Iowa, Hart told Iowa Defendants Amelia Oponski and Mark Lathrop that he wanted to return to North Dakota to collect a debt and that he needed a gun for this venture. Defendant Patrick Parker supplied them with a .357 magnum weapon, a shoulder holster, and fifty rounds of hollow point ammunition, believing that they intended to use the weapon in an attempt to obtain money from North Dakota residents in North Dakota. [Second Amended Complaint, ¶ 28-30, 39, App. 54-55, 56; Tr. of Proc. 8/24/98, 66-67, 80; App. 87-88, 101]. Parker admitted that he gave the gun to Lathrop, knowing he would be going to North Dakota with Hart to get money. [Tr. of Proc. 8/24/98; 66, App. 87]. Parker admitted he knew that Hart had just been bailed out of jail by Lathrop. [Parker Dep. p. 28, App. 171]. Parker knew Hart had been in trouble with law enforcement in the Des Moines area. [Rodenburg Aff. ¶ 15, App. 73]. La-throp and Oponski transported Hart and the weapon to North Dakota. [Second Amended Complaint, ¶ 28-30; App. 54-55].

Parker said in a deposition he gave the gun to Lathrop, who “was going to go to Fargo with Bill Hart, and Hart was going to pay him money that he owed him, and he wanted the gun for protection of the money on the way back.”

[¶ 21] In supplying Oponski and La-throp with a .357 magnum, a shoulder holster, and 50 rounds of ammunition to obtain money in North Dakota with Hart, whom Parker knew Lathrop had just bailed out of jail, Parker’s conduct and connection with North Dakota were such that he reasonably should have anticipated being haled into court here. Clifton Rodenburg’s injury in North Dakota was not fortuitous. Parker purposely directed his activities at North Dakota residents, Parker’s conduct was calculated to cause injury in North Dakota, the litigation results from injuries arising out of Parker’s activities, and the trial court’s exercise of personal jurisdiction over him would comport with due process. We conclude the trial court could properly have exercised personal jurisdiction over Parker, and we reverse the judgment dismissing Roden-burgs’ action against Parker without prejudice.

[¶ 22] Our conclusion the trial court could have exercised personal jurisdiction over Parker, however, does not require or warrant a new trial against the YMCA. The jury found the YMCA was not negligent. Rodenburgs have not shown how a trial with additional defendants would have led the jury to find the YMCA negligent. Rodenburgs may choose to further pursue their action against Parker.

Ill

[¶ 23] Rodenburgs contend the trial court erred in determining the jury must compare the negligence of the YMCA with the intentional tort of Hart.

[¶ 24] Section 32-03.2-01, N.D.C.C., provides, in part: “As used in this chapter, ‘fault’ includes acts or omissions that are in any measure negligent or reckless towards the person or property of the actor or others, or that subject a person to tort liability.” Section 32-03.2-02, N.D.C.C., provides:

Contributory fault does not bar recovery in an action by any person to recover damages for death or injury to person or property unless the fault was as great as the combined fault of all other persons who contributed to the injury, but any damages allowed must be diminished in proportion to the amount of contributing fault attributable to the person recovering. The court may, and when requested by any party, shall direct the jury to find separate special verdicts determining the amount of damages and the percentage of fault attributable to each person, whether or not a party, who contributed to the injury. The court shall then reduce the amount of such damages in proportion to the amount of fault attributable to the person recovering. When two or more parties are found to have contributed to the injury, the liability of each party is several only, and is not joint, and each party is liable only for the amount of damages attributable to the percentage of fault of that party, except that any persons who act in concert in committing a tortious act or aid or encourage the act, or ratifies or adopts the act for their benefit, are jointly liable for all damages attributable to their combined percentage of fault. Under this section, fault includes negligence, malpractice, absolute liability, dram shop liability, failure to warn, reckless or willful conduct, assumption of risk, misuse of product, failure to avoid injury, and product liability, including product liability involving negligence or strict liability or breach of warranty for product defect.

[¶ 25] The modified comparative fault provisions significantly revised tort liability in North Dakota and shifted the focus from traditional tort doctrines to the singular inclusive concept of “fault.” Haff v. Hettich, 1999 ND 94, ¶ 14, 593 N.W.2d 383. Section 32-03.2-02, N.D.C.C., directs comparison of “fault,” rather than comparison of “negligence,” and it includes within “fault” both “negligence” and “reckless or willful conduct.” McLean v. Kirby Co., 490 N.W.2d 229, 244 (N.D.1992). As this court said in Champagne v. United States, 513 N.W.2d 75, 79 (N.D.1994), under N.D.C.C. § 32-03.2-02, “ ‘Fault’ now includes an intentional act.” In N.D.C.C. § 32-03.2-02, the legislature clearly intended to replace joint and several liability with several allocation of damages among those who commit torts in proportion to the fault of those who contributed to an injury. Hurt v. Freeland, 1999 ND 12, ¶ 20, 589 N.W.2d 551; Stewart v. Ryan, 520 N.W.2d 39, 45 (N.D.1994).

[¶ 26] Under N.D.C.C. §§ 32-03.2-01 and 32-03.2-02, as this Court has construed them, “fault” includes negligent and intentional conduct. A neg-hgent tortfeasor’s conduct is compared with an intentional tortfeasor’s conduct, and their liability is several, not joint, with each being hable only for the amount of damages attributable to that party. “We presume the legislature is aware of judicial construction of a statute, and from its failure to amend a particular statutory provision, we may presume it acquiesces in that construction.” Johnson v. Johnson, 527 N.W.2d 663, 666 (N.D.1995). The legislature’s failure to amend language interpreted by the courts “is evidence the court’s interpretation is in accordance with the legislative intent.” Clarys v. Ford Motor Co., 1999 ND 72, ¶ 16, 592 N.W.2d 573.

[¶ 27] Rodenburgs assert public pohcy supports not relieving a neghgent tortfea-sor of liability for an intentional tortfea-sor’s fault when the neghgent tortfeasor had a duty to prevent the intentional tort and the statutes should not be construed to include intentional torts or neghgent tortfeasors should be jointly hable under the “aid or encourage” exception. The court in Turner v. Jordan, 957 S.W.2d 815, 823 (Tenn.1997), articulated the concerns in choosing to compare or not compare the fault of a neghgent tortfeasor with that of an intentional tortfeasor:

Accordingly, the concern in cases that compare the negligence of a defendant with the intentional act of a third party is not burdening the neghgent tortfeasor with liability in excess of his or her fault; conversely, the primary concern in those cases that do not compare is- that the plaintiff not be penalized by allowing the neghgent party to use the intentional act it had a duty to prevent to reduce its liability.

[¶ 28] A number of courts and commentators have expressed views which might reasonably lead to a decision not to compare intentional and neghgent conduct in allocating fault. See, e.g., W. Page Keeton et al., Prosser & Keeton on the Law of Torts, § 65, p. 462 (5th ed.1984) (conduct “.actually intended to inflict harm” and “that aggravated form of negligence, approaching intent ... differ[ ] from negligence not only in degree but in kind, and in the social condemnation attached to it”); Wal-Mart Stores, Inc. v. McDonald, 676 So.2d 12, 22 (Fla.Ct.App.1996) (“Reducing the responsibility of a negligent tortfeasor by allowing that tortfeasor to place the blame entirely or largely on the intentional wrongdoer would serve as a disincentive for the negligent tortfeasor to meet its duty to provide reasonable care to prevent intentional harm from occurring.”); Veazey v. Elmwood Plantation Assocs., Ltd., 650 So.2d 712, 719 (La.1994) (“any rational juror will apportion the lion’s share of the fault to the intentional tortfeasor when instructed to compare the fault of a negligent tortfeasor and an intentional tortfea-sor”); Turner v. Jordan, 957 S.W.2d at 823 (“[Comparison presents practical difficulties in allocating fault between negligent and intentional acts, because negligent and intentional torts are different in degree, in kind, and in society’s view of the relative culpability of each act.”); Brandon v. County of Richardson, 261 Neb. 636, 624 N.W.2d 604, 620 (2001) (“Fact finders are likely to allocate most, if not all, of the damages to the intentional tort-feasor due to the higher degree of social condemnation attached to intentional, as opposed to negligent, torts.”); McLean v. Kirby Co., 490 N.W.2d at 244 (decided under prior law) (not fair or just for rape victim’s recovery to be diminished by fault a jury might attribute to the rapist, who did not appear in the action and was in the plaintiffs apartment on behalf of the defendants and as a result of their negligence).

[¶ 29] While good arguments can be made for not comparing the fault of a negligent tortfeasor with that of an intentional tortfeasor, such arguments would be more appropriately addressed to the legislature than to the judiciary. In N.D.C.C. §§ 32-03.2-01 and 32-03.2-02, the legislature chose to compare the fault of each. “Our function is to interpret the statute .... ‘The justice, wisdom, necessity, utility and expediency of legislation are questions for legislative, and not for judicial determination.’ ” Stokka v. Cass County Elec. Coop., Inc., 373 N.W.2d 911, 914 (N.D.1985) (quoting Syllabus ¶ 11, Asbury Hospital v. Cass County, 12, N.D. 359, 7 N.W.2d 438 (1943)). The legislature is much better suited than courts to identify or set the public policy in this state. Haff v. Hettich, 1999 ND 94, ¶ 22, 593 N.W.2d 383; Martin v. Allianz Life Ins. Co., 1998 ND 8, ¶ 20, 573 N.W.2d 823. “[T]he legislature ‘can do studies, gather evidence, hold hearings, and come to a decision’ and ‘broad public policy issues are best handled by legislatures with their comprehensive machinery for public input and debate’ (citations and quotations omitted).” Allianz, 1998 ND 8, ¶ 20, 573 N.W.2d 823.

[¶ 30] We conclude the trial court did not err in determining the jury must compare the negligence, if any, of the YMCA with the intentional tort of Hart.

IV

[¶ 31] The judgment dismissing Roden-burgs’ action against Parker is reversed. The judgment dismissing Rodenburgs’ complaint against the YMCA, and all other challenged rulings are affirmed.

[¶ 32] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM and WILLIAM A. NEUMANN, JJ„ and MAURICE R. HUNKE, S.J., concur.

[¶ 33] The Honorable MAURICE R. HUNKE, S.J., sitting in place of MARING, J., disqualified.

      . This Court’s decision to decline to exercise its discretionary authority to issue an original or remedial writ without an opinion is not an indication of our position on the merits of the issues presented. State v. Paulson, 2001 ND 82, ¶ 6 n. 1, 625 N.W.2d 528; Daley v. American Family Mut. Ins. Co., 355 N.W.2d 812, 814 n. 2 (N.D.1984).

      . Here, the court held a hearing to allow the parties to present their jurisdictional arguments, but did not take evidence. If an evi-dentiary hearing is held, the burden is on the party asserting jurisdiction. Red River Transp. & Dev. Co. v. Custom Airmotive, Inc., 497 F.Supp. 425, 427 (D.N.D.1980).


source: Caselaw Access Project

author: NEUMANN, Justice.

license: Public Domain

text:
    2001 ND 140
    Roger D. LAPP, Petitioner and Appellee, v. North Dakota DEPARTMENT OF TRANSPORTATION, Respondent and Appellant.
    No. 20010040.
    Supreme Court of North Dakota.
    July 25, 2001.

      Reid Alan Brady (argued) and Andrew Moraghan, Assistant Attorneys General, Bismarck, ND, for respondent and appellant.
    Chad R. McCabe of Vinje Law Firm, Bismarck, ND, for petitioner and appellee.
   NEUMANN, Justice.

[¶ 1] The North Dakota Department of Transportation (“the department”) appealed from a district court judgment reversing the administrative hearing officer’s decision suspending Roger D. Lapp’s driver’s license for ninety-one days. We reverse the district court judgment and reinstate the hearing officer’s suspension of Lapp’s license.

I

[¶ 2] On July 16, 2000, a security guard for Bismarck Mandan Security called the Bismarck Law Enforcement Center and reported an individual slumped over the steering wheel of his vehicle that was parked in a parking lot. At 4:47 a.m. a Bismarck police officer responded to a dispatch call to the parking lot. The security guard told the officer he saw Lapp slumped over the steering wheel of his idling pickup and tried unsuccessfully to communicate with Lapp by knocking on the pickup window. The police officer also saw Lapp slumped over the steering wheel of his pickup. The vehicle was still running, and the headlights were on. The officer knocked on the window. Lapp sat up and looked at the officer through the window. The officer noticed Lapp’s eyes were glossy. It is disputed whether the officer opened the pickup door or whether Lapp and the officer opened the door at the same time, but after the door was opened, the officer asked Lapp if he had identification. Lapp showed the officer his driver’s license. The officer asked Lapp whether he needed medical attention, and Lapp said he did not. The officer asked Lapp whether he had been drinking, and Lapp said he had consumed a few beers.

[¶ 3] The officer asked Lapp to get out of the pickup.. Lapp agreed to take field sobriety tests. Lapp failed the one-leg stand and walk-and-turn tests. After the officer recited the implied consent advisory, Lapp submitted to an onsite screening test. The test estimated Lapp’s blood-alcohol concentration was .16 percent. The officer arrested Lapp for being in actual physical control of a vehicle while under the influence of alcohol. An Intoxi-lyzer test given to Lapp at the police station showed Lapp’s blood-alcohol content was .12 percent.

[¶ 4] Lapp requested an administrative hearing. The hearing officer concluded the police officer had reasonable grounds for approaching Lapp because Lapp was slumped over the steering wheel of his vehicle with the engine running. The hearing officer also concluded the police officer had probable cause to believe Lapp had been driving or was in actual physical control of a vehicle while under the influence of alcohol. The hearing officer suspended Lapp’s driver’s license for ninety-one days.

[¶ 5] Lapp appealed to the district court. The district court reversed the hearing officer’s decision, finding the police .officer opened the door of Lapp’s vehicle without either a reasonable suspicion of criminal activity or a community caretak-ing function. The department appealed.

II

[¶ 6] The Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, governs the review of an administrative agency decision to suspend a driver’s license. Wetzel v. N.D. Dep’t of Transp., 2001 ND 35, ¶ 9, 622 N.W.2d 180. Our standard of review is the same standard applied by the district court. N.D.C.C. § 28-32-21. We review the record compiled by the agency and affirm the agency’s decision unless:

1) the decision is not in accordance with the law; 2) the decision violates the constitutional rights of the appellant; 3) provisions of the Administrative Agencies Practice Act were not complied with in the proceedings before the agency; 4) the agency’s rules or procedures have not afforded the appellant a fair hearing; 5) the agency’s findings are not supported by a preponderance of the evidence; or 6) the conclusions of law and the agency’s decision are not supported by its findings of fact. N.D.C.C. § 28-32-19.

Wetzel, 2001 ND 35, ¶ 9, 622 N.W.2d 180. We give great deference to administrative rulings. Id. at ¶ 9. When reviewing the findings of an administrative agency, we do not substitute our judgment for that of the agency, but instead determine whether a reasonable mind could have determined that the factual conclusions were proven by the weight of the evidence presented. Id. at ¶ 9.

Ill

[¶ 7] The Fourth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, and Article I, § 8 of the North Dakota Constitution, guarantee “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

[¶ 8] We have explained, however, that not every law enforcement-citizen encounter is an investigative stop or a seizure deserving of Fourth Amendment protection. City of Grand Forks v. Zejdlik, 551 N.W.2d 772, 774 (N.D.1996); see State v. Halfmann, 518 N.W.2d 729, 730 (N.D.1994) (discussing three tiers of encounters: arrests which must be supported by probable cause; investigative, or “Terry,” stops which must be supported by a reasonable and articulable suspicion; and community caretaking encounters which do not constitute Fourth Amendment seizures). A seizure occurs, and Fourth Amendment protection is afforded a citizen, only when the officer has restrained the citizen’s liberty by means of physical force or show of authority. City of Fargo v. Ovind, 1998 ND 69, ¶ 7, 575 N.W.2d 901. It is not a Fourth Amendment seizure for a police officer to approach and talk with a person in a public place, including a stopped vehicle. State v. DeCoteau, 1999 ND 77, ¶ 19, 592 N.W.2d 579; City of Fargo v. Sivertson, 1997 ND 204, ¶ 9, 571 N.W.2d 137. An officer’s approach to a parked vehicle is not a seizure if the officer inquires of the occupant in a conversational manner, does not order the person to do something, and does not demand a response. DeCoteau, 1999 ND 77, ¶ 19, 592 N.W.2d 579; see Sivertson, 1997 ND 204, ¶ 9, 571 N.W.2d 137 (stating that “the law distinguishes between approaching an already stopped vehicle and stopping a moving one”).

[¶ 9] On appeal, the department argues the hearing officer’s decision to suspend Lapp’s driver’s license is supported by alternative justifications for the encounter between the officer and Lapp: the officer had a reasonable and articulable suspicion of criminal activity, and the officer was acting within his community caretaker role.

A

[¶ 10] The department contends the officer had a reasonable and articulable suspicion Lapp was in actual physical control of his vehicle while under the influence of alcohol.

[¶ 11] In determining whether the officer had a reasonable and articula-ble suspicion to justify the investigatory stop, the test is whether a reasonable person in the officer’s position would be justified by some objective manifestation in suspecting potential criminal activity. State v. Gregg, 2000 ND 154, ¶27, 615 N.W.2d 515. The reasonable and articula-ble suspicion standard requires more than a “mere hunch,” but less than probable cause. State v. Loh, 2000 ND 188, ¶ 5, 618 N.W.2d 477. Reasonable and articulable suspicion can be provided by reports from other officers, tips from informants, and from the officer’s own observations. State v. Garrett, 1998 ND 173, ¶ 30, 584 N.W.2d 502. We assess the totality of the circumstances in evaluating the validity of a stop. In re T.J.K., 1999 ND 152, ¶ 7, 598 N.W.2d 781.

[¶ 12] Here, assuming for now the absence of any community caretaking function, a stop arguably occurred when the police officer and Lapp opened the door of the pickup and the officer asked Lapp for identification. See Borowicz v. N.D. Dep’t of Transp., 529 N.W.2d 186, 188 (N.D.1995) (stating a stop arguably occurred when the police officer requested the driver open the vehicle door and produce a driver’s license). However, by the time the officer opened the door, he had observed enough to give him reasonable, articulable suspicion of actual physical control. The officer was responding to a tip from the security guard, an identified informant. See State v. Miller, 510 N.W.2d 638, 642 (N.D.1994) (stating tips from identified callers are more reliable than tips from anonymous callers). The security guard indicated he had unsuccessfully tried to awaken Lapp. It was approximately 5:00 in the morning. Lapp’s pickup was running and the headlights were on. The police officer saw Lapp slumped over the steering wheel. The officer had difficulty awakening Lapp. When Lapp did awake, the officer observed Lapp’s glossy eyes.

[¶ 13] In his brief, Lapp argues these circumstances “describe a very large category of presumably innocent travelers, who would be subject to virtually random seizures were the Court to conclude that as little foundation as there was in this case could justify a seizure.” However, the reasonable and articulable suspicion standard does not require an officer to rule out every potential innocent excuse for the behavior in question. Kappel v. N.D. Dep’t of Transp., 1999 ND 213, ¶ 10, 602 N.W.2d 718. Probabilities, not certainties, are used in determining reasonable and articulable suspicion. Id. at ¶ 10. Based on the circumstances in this case, an officer might reasonably have suspected Lapp was in actual physical control of his pickup while under the influence of alcohol.

B

[¶ 14] In addition to the officer’s reasonable and articulable suspicion of criminal activity, the encounter between the officer and Lapp can also be independently supported on the basis of the officer’s community caretaker role. Law enforcement officers frequently act in the role of community caretaker. State v. DeCoteau, 1999 ND 77, ¶ 19, 592 N.W.2d 579. Officers’ actions under the community caretaker role differ from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute. Id. at ¶ 19. Community caretaking justifies law enforcement contact without reasonable suspicion of unlawful conduct. Id. at ¶20. If, when approaching a parked vehicle in a caretaker encounter, an officer discovers something causing a reasonable suspicion or probable cause, the officer may further investigate, seize, and even arrest. City of Fargo v. Sivertson, 1997 ND 204, ¶ 9, 571 N.W.2d 137. A caretak-ing encounter does not foreclose an officer from making observations that lead to a reasonable and articulable suspicion. State v. Langseth, 492 N.W.2d 298, 300 (N.D.1992).

[¶ 15] It was reasonable for the police officer to be concerned for Lapp’s safety. The security guard told the officer he had unsuccessfully tried to awaken Lapp for ten minutes by knocking on the vehicle window. The police officer observed Lapp slumped over the steering wheel. Lapp’s vehicle was running and the headlights were on. The officer had tapped on Lapp’s window twice within two minutes before Lapp awoke. When Lapp awoke, the officer noticed his glossy eyes. The officer opened the door and asked Lapp for identification. Lapp showed the officer his driver’s license. The officer asked Lapp whether he needed medical attention. Lapp said he did not.

[¶ 16] The encounter was within the officer’s role as a community caretaker. Until the officer conversed with Lapp and ascertained Lapp did not need medical attention, the officer was justified in investigating Lapp’s condition.

IV

[¶ 17] The evidence in the record from the administrative hearing supports the hearing officer’s conclusion that the police officer had reasonable grounds to investigate the parked vehicle and, as a result of that investigation, had reasonable grounds to believe that Lapp was in actual physical control of the vehicle in violation of section 39-08-01, N.D.C.C. We reverse the district court’s judgment and reinstate the hearing officer’s suspension of Lapp’s license.

[¶ 18] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING and DALE V. SANDSTROM, JJ., and LAWRENCE A. LECLERC, D.J., concur.

[¶ 19] The Honorable LAWRENCE A. LECLERC, D.J., sitting in place of KAPSNER, J., disqualified.


author: MARING, Justice.

text:
    2001 ND 141
    Dr. Brian D. GALE, Appellant, v. NORTH DAKOTA BOARD OF PODIATRIC MEDICINE, Appellee.
    No. 20010032.
    Supreme Court of North Dakota.
    July 30, 2001.

      James J. Coles, Coles Law Firm, PC, Bismarck, ND, for appellant.
    Gary R. Thune, Special Assistant Attorney General, Pearce & Durick Law Firm, Bismarck, ND, for appellee.
   MARING, Justice.

[¶ 1] Dr. Brian Gale appeals from a judgment dismissing his appeal to district court from an order of the North Dakota Board of Podiatric Medicine (“the Board”) imposing discipline. We conclude Gale waived his right to challenge the findings of fact on appeal, and we affirm the judgment dismissing his appeal to district court.

I

[¶ 2] Gale is a doctor of podiatric medicine practicing in Bismarck. In 1994, the Board filed a formal complaint against Gale resulting in discipline being imposed for his failure to properly treat a patient and his use of misleading advertising. Gale was placed on unsupervised probation for two years and ordered to pay a civil penalty. We affirmed the Board’s order in Gale v. North Dakota Bd. of Podiatric Med., 1997 ND 83, 562 N.W.2d 878.

[¶ 3] After our ruling in Gale, the Board acted on additional complaints it had received about Gale. It resolved complaints from four patients through informal proceedings. In August 1997, the Board initiated a formal complaint based upon Gale’s treatment of seven other patients. In April 1998, the formal complaint was amended to include complaints by two additional patients, and to drop the complaint of one patient.

[¶ 4] The formal complaint alleged violations of N.D.C.C. § 43-05-16(l)(g), (k), and (u), which provides:

Grounds for disciplinary action.
1. The board may refuse to grant a license or permit or may impose disciplinary action as described in this chapter against any podiatrist. The following conduct, whether occurring in this state or elsewhere, is prohibited and is a basis for disciplinary-action:
g. Engaging in any unethical conduct; conduct likely to deceive, defraud, or harm the public; demonstrating a willful, careless, or negligent disregard for the health, welfare, or safety of a patient; or podiatric medical practice that is professionally incompetent, in that it may create unnecessary danger to any patient’s life, health, or safety regardless of whether an actual injury is proved.
k. Engaging in unprofessional conduct that includes any departure from or the failure to conform to the minimal standards of acceptable and prevailing podiatric medical practice.
u. A continued pattern of inappropriate care as a podiatrist.

[¶ 5] The formal complaint alleged specific details of Gale’s alleged improper treatment of patients

Brian David Gale, D.P.M., while licensed as a doctor of podiatric medicine by the North Dakota State Board of Podiatric Medicine, and while in the state of North Dakota, violated the provisions of 43 — 05—16(l)(g), (k), (u), North Dakota Century Code, by:
a. failing to properly treat and care for Patricia J. Lautenschlager. Dr. Gale performed an ankle fusion of the right ankle and a procedure to remove a portion of the medial mal-leous and reposition pins from the external fixator in March 1993. As a result of the procedures, the ankle was in a position of varus, and the tibia was posteriorly displaced on the talus. Dr. Gale performed a
calcaneal osteotomy in March 1994, resulting in residual varus of the foot and pain in the subtalar joint.
d. failing to properly treat and care for Margie A. Pulkrabek. Dr. Gale performed a tarsal tunnel release with plantar fascia release on the right, foot in December 1994. Ms. Pulkra-bek was left with persisting numbness and pain in the right foot following the surgery. A tarsal tunnel release was not indicated. The procedure was not properly performed in that the medial calcaneal nerve was cut.
e. failing to properly treat and care for Geraldene Parsley. Dr. Gale performed a gastrocnemius recession with exploration of the left Achilles tendon on May 2,1994. The records do not demonstrate this surgery was appropriate and Dr. Gale’s post-operative diagnosis did not match the operative findings.
g. failing to properly treat and care for Gladys Wright. Dr. Gale performed a total joint implant of the right first metatarsal phalangeal joint in July 1996. The phalangeal component of the implant was in a plantarflexed position after surgery and there was loosening of the distal component. Joint congruity also failed to be kept after surgery. Dr. Gale failed to diagnose loosening of the implant.
h. failing to properly treat and care for Shirley Sailer. Dr. Gale attempted to repair the hallux varus (iatrogenic) of the right foot following a bunion correction in 1990 by another podiatrist. Dr. Gale’s June 1996 surgery on the right foot involved soft tissue balance and osteotomy of the first metatarsal phalangeal joint. The pre-operation varus of the hal-lux was approximately 15 degrees; the final position of approximately 20 degrees varus with elevation of the first metatarsal head. Dr. Gale failed to recognize shifting of osteo-tomy from the earlier x-rays. There was also further loosening of the screw and proximal migration of the capital fragment.

[¶ 6] On June 22, 1998, the Board and Gale entered into a settlement agreement which provided Gale would waive his right to an administrative hearing and the matter would be submitted to an independent expert reviewer to make binding, nonap-pealable findings of fact. The agreement provided, in pertinent part:

Gale agrees to waive his right to an administrative hearing.
The Board and Gale wish to resolve this matter without an administrative hearing.
NOW, THEREFORE, the Board and Gale agree to resolve this matter as follows:
1. The records of patients involved in the complaint will be submitted to an independent expert reviewer selected as outlined in paragraph 3. The independent reviewer will make factual findings regarding whether Gale failed to properly treat and care for the patients. The independent reviewer’s factual findings will be binding on both the Board and Gale, and not appealable.

[¶ 7] The parties selected Dr. Adolph Galinski, Associate Dean, Clinical Sciences, Scholl College of Podiatric Medicine, to serve as the independent expert reviewer. The parties submitted medical records, expert opinions, and briefs to Dr. Galinski. Dr. Galinski issued his report on July 20, 1999, making specific findings that Gale had failed to properly treat and care for each of the five patients. Dr. Galinski also noted that Gale’s medical recordkeeping was unacceptable.

[¶ 8] Gale appeared with legal counsel at the Board’s regular annual meeting on August 11, 1999. Gale and his attorney informed the Board they believed Dr. Ga-linski had improperly considered Gale’s medical recordkeeping, which had not been alleged in the formal complaint, and they therefore did not consider his report binding. Gale’s attorney indicated they were considering an appeal to district court, but suggested that the Board members could serve as independent reviewers, reexamine the medical records of the five patients, and make new findings of fact. After lengthy discussion, and a recess to allow Gale and his attorney to consult, the parties agreed to amend the earlier settlement agreement and have four of the five members of the Board reexamine the records and make binding, nonappealable findings of fact.

[¶ 9] On August 12, 1999, the parties memorialized their new agreement in a written stipulation:

AS AGREED at the Annual Meeting of the Board of Podiatric Medicine held at the Jamestown Hospital in Jamestown, North Dakota on the evening of Wednesday, August 11, 1999, the undersigned legal counsel hereby STIPULATE TO MODIFY the intent and meaning of that Settlement Agreement dated June 22, 1998 (a copy of which is attached hereto and incorporated by reference), as follows:
1. INDEPENDENT REVIEWER: All references to an “independent reviewer” shall be interpreted to mean the following four members of the Board of Podiatric Medicine:
Lee Hofsommer, D.P.M;
Mike Stone, D.P.M.;
Bob Deckert, D.P.M.; and
Doug Moen, M.D.
It is agreed that these four members of the Board shall replace Adolph W. Galinski as the independent reviewers under said Settlement Agreement.
2. ROLE OF NEW REVIEWERS: The above-named reviewers shall review all those briefs and documents, including x-rays, which were provided to and reviewed by Adolph W. Galin-ski, following which the reviewers may exercise the option of either making further oral inquiry of Dr. Brian Gale or making factual findings regarding whether Gale failed to properly treat and care for patients. The new independent reviewers’ factual findings will be binding on both the Board and Gale, and not appealable.
All other provisions of the aforesaid Settlement Agreement shall remain as written in said Agreement.

[¶ 10] In accordance with the parties’ agreement, each of the four Board members reviewed copies of the five patients’ medical records and other documentation which had been provided to Dr. Galinski. On January 12, 2000, with Gale and his attorney present, the four Board members met by conference call to discuss the matter and provide input to the Board’s legal counsel, who would draft proposed findings. After the meeting, the Board’s counsel drafted proposed findings. Gale was permitted to submit written doeumen-tation and arguments to the Board members regarding the proposed findings. At a meeting on January 27, 2000, the Board members reviewed each of the proposed findings and made changes based upon Gale’s written submissions. The Board members then adopted their final Findings of Fact, Conclusions of Law, and Order Imposing Discipline. The Board members unanimously found Gale had failed to properly treat and care for the five patients, and had violated N.D.C.C. § 43-05-16(l)(g), (k), and (u). The Board ordered revocation of Gale’s license to practice po-diatric medicine, with revocation stayed for a five-year probationary period during which Gale’s practice would be limited to non-operative podiatric care. Gale was also ordered to attend retraining sessions and to pay fees and costs of the disciplinary proceedings.

[¶ 11] Gale appealed from the Board’s order to the district court. The district court concluded Gale had waived his right-to appeal and dismissed the appeal. Gale appealed to this Court.

II

[¶ 12] On appeal, Gale raises numerous challenges to the procedures and methods used by the Board members in reaching their findings of fact. Gale also asserts they ignored the opinion submitted by his expert witness and failed to clarify inconsistencies in the medical evidence. We conclude Gale waived his right to raise these challenges to the findings of fact.

[¶ 13] Under N.D.C.C. § 28-32-05.1, the parties to an administrative proceeding may, by stipulation, waive the right to an administrative hearing and formal disposition, and agree to some other form of informal disposition. A party to an administrative proceeding may also waive the right to an appeal. Steen v. North Dakota Dep’t of Human Servs., 1997 ND 52, ¶ 35, 562 N.W.2d 83.

[¶ 14] Waiver is a voluntary and intentional relinquishment of a known existing advantage, right, privilege, claim, or benefit. Stuart v. Stammen, 1999 ND 38, ¶ 12, 590 N.W.2d 224; Diversified Fin. Sys., Inc. v. Binstock, 1998 ND 61, ¶ 16, 575 N.W.2d 677. A waiver can be made expressly or be inferred from conduct. Tormaschy v. Tormaschy, 1999 ND 131, ¶ 12, 596 N.W.2d 337; Diversified Fin. Sys., at ¶ 16. Once the right is waived, the right or privilege is gone forever, and the waiver cannot be extracted, recalled, or expunged. Tormaschy v. Tormaschy, 1997 ND 2, ¶ 19, 559 N.W.2d 813. When parties conduct themselves in a manner which clearly constitutes a waiver, they cannot later claim they did not know their actions amounted to a voluntary and intentional waiver of their rights, because one who consents to an act is not wronged by it. Tormaschy, 1999 ND 131, ¶ 12, 596 N.W.2d 337. Although existence of waiver is ordinarily a question of fact, if the circumstances of a claimed waiver are admitted or clearly established and reasonable persons can draw only one conclusion from those circumstances, the existence or absence of waiver is a question of law. Hanson v. Cincinnati Life Ins. Co., 1997 ND 230, ¶ 13, 571 N.W.2d 363.

[¶ 15] Gale does not challenge the validity of the waiver in this case. Gale twice expressly agreed in writing that the findings of fact of the independent reviewers would be binding and nonappealable.

[¶ 16] Gale’s arguments on appeal all constitute challenges to the findings of fact. For example, he argues that the Board members should have clarified inconsistencies in the medical evidence; that the Board members relied upon their own expertise and ignored the opinion of Gale’s expert; and that the Board members should have explicitly set out the standard of care they were applying in each of the five cases. All of Gale’s arguments constitute challenges to the findings of fact which he waived in the original settlement agreement and the stipulated modification of that agreement.

[¶ 17] We conclude the district court did not err in concluding Gale had waived his right to appeal and in dismissing Gale’s appeal from the Board’s order imposing discipline. The judgment of dismissal is affirmed.

[¶ 18] WILLIAM A. NEUMANN, Acting C.J., DALE V. SANDSTROM, J., LAWRENCE A. LECLERC and WILLIAM W. McLEES, D.JJ., concur.

[¶ 19] The Honorable LAWRENCE A. LECLERC, D.J., and the Honorable WILLIAM W. McLEES, D.J., sitting in place of VANDE WALLE, C.J., and KAPSNER, J., disqualified.

      . The Board subsequently withdrew its complaints against Gale based upon his treatment of the three remaining patients, and we do not detail those allegations.

      . The president of the Board, Dr. Aaron Olson, had formerly employed Gale and they were engaged in civil litigation against each other. See Gale. 1997 ND 83. 562 N.W.2d 878; Keator v. Gale, 1997 ND 46, 561 N.W.2d 286. Dr. Olson therefore did not serve as an independent reviewer.

      . The district court alternatively concluded the evidentiary record supported the Board’s decision.


author: VANDE WALLE, Chief Justice.

text:
    2001 ND 154
    Frank ROSE, individually and on behalf of all others similarly situated, Plaintiff and Appellant, v. UNITED EQUITABLE INSURANCE COMPANY, Standard Life and Accident Insurance Company, Defendants and Appellees, and United Equitable Life Insurance Company, Defendant.
    No. 20000333.
    Supreme Court of North Dakota.
    Aug. 29, 2001.

      Monte L. Rogneby (argued), H. Patrick Weir, Vogel Law Firm, Timothy Q. Purdon (appeared) and Thomas A. Dickson, Dickson <& Purdon, Bismarck, ND, for plaintiff and appellant.
    Lawrence A. Dopson (argued), Zuger Kirmis & Smith, Bismarck, ND, Michael F. Braun, Schuyler Roche & Zwirner, Chicago, IL, for defendant and appellee United Equitable Insurance Company.
    Stephen W. Plambeck (argued) and Daniel J. Crothers (appeared), Nilles, Hansen & Davies, Ltd., Fargo, ND, Scott D. Daniel (appeared), Greer, Herz & Adams, Galveston, TX, for defendant and appellee Standard Life and Accident Insurance Company.
   VANDE WALLE, Chief Justice.

[¶ 1] Frank Rose appealed from a judgment dismissing his action against Standard Life and Accident Insurance Company (“Standard”), United Equitable Insurance Company (“United”), and United Equitable Life Insurance Company. We conclude the district court, relying on the statute of limitations, erred in dismissing Rose’s action on the pleadings, and we reverse and remand for further proceedings.

[¶ 2] Rose, who was born in 1906, bought a long term care insurance policy from United in 1982. United later assigned all its North Dakota long term care policies to Standard. Since 1982, United and Standard have renewed Rose’s insurance on a yearly basis.

[¶ 3] In 2000, Rose, individually and on behalf of all others similarly situated, sued for damages for constructive fraud, actual fraud, consumer fraud, false advertising, and negligent misrepresentation. In his complaint, Rose generally alleged, among other things: (1) the insurers represented the policies were guaranteed to be renewable; (2) the policies “were, in fact, defective from the outset, as they were improperly underwritten and under-priced, conditions which defendants knew from the start would necessitate dramatic premium increases ... to remain in force;” (3) the insurers did not “disclose the known risk of premium increases, the plan to increase premiums, and the resulting attendant unaffordability of the LTC policies to plaintiff and the Class;” (4) the insurers represented “that the contracted-for annual premium rate was the ‘Total Premium’ that policyholders would have to pay in order to maintain their LTC policies;” and (5) the premium was $418 when Rose bought the policy and later rose to $1,909.36. Rose also generally alleged:

(8) Not only did defendants fail to disclose the anticipated premium increases, but in 1986 defendants ceased selling the LTC policies, an act known as “closing the block” of business in the insurance industry. This fact was never disclosed to the policyholders. By “closing the block,” defendants capped its pool of insureds under these policies and barred new insureds from purchasing LTC policies. This led to a “death spiral” that guaranteed that plaintiffs and the Class’ LTC premium rates would increase at an even greater rate. Closing the block is particularly significant in LTC insurance situations, where the pool is largely comprised of senior citizens. This is due to the fact that policyholders in the closed block, including plaintiff and the Class, are forced to pay the higher premiums that arise from such block closings or risk losing their LTC coverage altogether should they cease paying the increased premiums. This is because their age and/or medical history prevents them from obtaining alternative LTC policies elsewhere.
(45) In instituting their LTC premium increases, defendants sent form letters to plaintiff and the Class which misrepresented the reasons for the increase, stating that the increase was due to “increased utilization of benefits.” This letter also fraudulently stated that the insured’s “nursing home policy provides valuable protection.” At no time did defendants advise plaintiff and the Class of the inherent defects in these LTC policies, that those defects were the direct cause of the premium increases, and that more increases were planned.

[¶ 4] In his claims for constructive fraud and actual fraud, Rose alleged the defendants failed to inform him of or suppressed the following:

(a) the LTC policies had been initially underpriced;
(b) the actuarial assumptions underlying the pricing of the LTC policies were based on limited or incomplete data;
(c) the LTC policies were poorly underwritten;
(d) given these problems, premium rate increases were inescapable;
(e) defendants planned on seeking a series of premium increases for the LTC policies;
(f) defendants would cease selling these LTC policies, “closing the block” of their LTC business and/or the ramifications of such an action;
(g) the closed LTC block was experiencing or would experience a “selection spiral” or “death spiral;”
(h) defendants were intentionally raising their premiums to exorbitant rates in order to obtain windfall profits by forcing the insureds to drop their policies and thereby avoid future claims; and/or
(i) defendants intended to pass any risk of loss due to their own fraud or neglect on to the consumer in the form of higher premiums.

[¶ 5] Rose also pleaded claims for consumer fraud under N.D.C.C. ch. 51-15, false advertising under N.D.C.C. ch. 51-12, and negligent misrepresentation, in that the policy was sold as “guaranteed renewable,” the premium quoted at the time of application was represented to be the “Total Premium,” the insurers misrepresented the reasons for premium increases, the insurers fraudulently stated the policies provided “valuable protection,” and the insurers “knew or should have known that these statements were untrue, false, and misleading.”

[¶ 6] Accepting the parties’ stipulation, the court entered a scheduling order delaying consideration of Rose’s September 22, 2000, motion for class certification until after consideration of the insurers’ motions for judgment of dismissal on the pleadings on the ground Rose’s complaint was barred by the statute of limitations. On November 16, 2000, the district court issued an order granting the insurers’ N.D.R.Civ.P. 12(b)(v) motions to dismiss Rose’s complaint for failure to state a claim upon which relief could be granted. The court explained:

A reasonable person under the circumstances alleged in the Complaint either would have known or should have known and discovered before August 2, 1994, that a cause of action might exist against Defendants Standard Life and Accident Insurance Company and United Equitable Insurance Company.
The Court further concludes from the circumstances alleged in the Complaint that Plaintiff was apprised of sufficient facts before August 2, 1994, to put a reasonable person on notice to inquire into possible claims against Defendants Standard Life and Accident Insurance Company and United Equitable Insurance Company, and that the statute of limitations applicable to the claims alleged in the Complaint, therefore, began to run before August 2, 1994, and expired before August 2, 2000, because Plaintiff, based upon the information available to him, failed in his obligation to find out what legal rights would arise from the facts known to him. Accordingly, Plaintiffs Complaint is barred by the six year statute of limitations and must be dismissed as a matter of law.

A judgment of dismissal was entered on November 20, 2000.

[¶ 7] On appeal Rose contends (1) notice of a rate increase is not notice of fraud in the sale and renewal of defective and worthless insurance; (2) United’s statute of limitations defense must fail because its fraud is ongoing; (3) United committed fraud after August 2, 1994, which is within the limitations period; and (4) United’s responsibility to Rose did not end in 1986, when it entered into an assumption reinsurance agreement with Standard.

[¶ 8] Standard contends Rose’s claims are barred by the six-year statute of limitations found in N.D.C.C. § 28-01-16, arguing, among other things: (1) “The injury of which Rose complains, regardless of the nature of the allegedly wrongful conduct that precipitated that injury, is the increased insurance premiums;” and (2) the reason for premium increases is irrelevant when the fact of premium increases would put a reasonable person on notice to inquire about a possible claim. United contends: “Rose discovered in 1986, if not in 1982, that the representation made to induce him to purchase the LTC policy, that there would never be a premium increase, was not true. His failure to act on that knowledge until August of 2000 bars him from any recovery.”

[¶ 9] “A six-year limitation period is applicable to actions for fraud and deceit. N.D.C.C. § 28-01-16(6).” Kuntz v. Muehler, 1999 ND 215, ¶ 6, 603 N.W.2d 43. “A fraud action is not barred by the passage of time until six years after discovery of the facts constituting the fraud.” Phoenix Assurance Co. of Canada v. Runck, 366 N.W.2d 788, 791 (N.D.1985).

The discovery rule postpones a claim’s accrual until the plaintiff knew, or with the exercise of reasonable diligence should have known, of the wrongful act and its resulting injury.... We have used an objective standard for the knowledge requirement under the discovery rule. The focus is upon whether the plaintiff is aware of facts that would place a reasonable person on notice a potential claim exists, without regard to the plaintiffs subjective beliefs.

Wells v. First Am. Bank West, 1999 ND 170, ¶ 10, 598 N.W.2d 834 (citations omitted). A statute of limitations defense is fact-driven and not ordinarily susceptible of summary disposition. Waxier v. Dalsted, 529 N.W.2d 176, 179 (N.D.1995).

[¶ 10] “The purpose of a Rule •12(b)(v) motion is to test the legal sufficiency of the statement of the claim presented in the complaint.” Towne v. Dinius, 1997 ND 125, ¶ 7, 565 N.W.2d 762. A court’s scrutiny of pleadings should be deferential to the plaintiff, unless it is clear there are no provable facts entitling the plaintiff to relief. Wells, 1999 ND 170, ¶ 7, 598 N.W.2d 834. “Because determinations on the merits are generally preferred to dismissal on the pleadings, Rule 12(b)(v) motions are viewed with disfavor.” Towne, at ¶ 7. A complaint should not be dismissed under N.D.R.Civ.P. 12(b)(v) for failure to state a claim upon which relief can be granted “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Johnson & Maxwell, Ltd. v. Lind, 288 N.W.2d 763, 765 (N.D.1980).

The complaint is to be construed in the light most favorable to the plaintiff, and the allegations of the complaint are taken as true. The motion for dismissal of the compliant should be granted only if it is disclosed with certainty the impossibility of proving a claim upon which relief can be granted.

Id. (citations omitted). “This court will generally reverse a judgment dismissing a complaint for failure to state a claim whenever we can discern a potential for proof to support it.” Towne, at ¶ 7.

[¶ 11] United and Standard essentially argue Rose paid increased premiums more than six years before filing suit, and his claims are barred by the statute of limitations as a matter of law. Conceivably, a premium increase asserted to be due, for example, to increased utilization of benefits may not provide notice of a potential claim for damages due to such things as a defective policy, improperly underwritten and underpriced, or “closing the block,” causing a “death spiral” guaranteeing premium increases. We agree with the insurers that any claim the insurers’ representation the initial annual premium rate was the “total premium” and could never be increased for any reason is barred by the statute of limitations. We are unwilling, however, to hold, as a matter of law, that a premium increase, without more, is notice of a potential claim for constructive fraud, actual fraud, consumer fraud, false advertising, or negligent misrepresentation, barring any possibility of recovery if suit is brought more than six years after a premium increase. Construing Rose’s complaint in the light most favorable to him, we are unable to conclude it discloses “with certainty the impossibility of proving a claim upon which relief can be granted,” Johnson & Maxwell, Ltd., 288 N.W.2d at 765, or that “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief,” id.

[¶ T2] The judgment is reversed and the matter is remanded for further proceedings.

[¶ 13] ROBERT 0. WEFALD, D.J., and DALE V. SANDSTROM, WILLIAM A. NEUMANN and MARY MUEHLEN MARING, JJ., concur.

[¶ 14] The Honorable ROBERT O. WEFALD, D.J., sitting in place of KAPSNER, J., disqualified.

      . The notice of appeal states it is “from the Judgment of Dismissal dated November 16, 2000.” The district court’s order for entry of judgment was issued on November 16, 2000. A consistent judgment was subsequently entered on November 20, 2000. We treat this as an appeal from the subsequently entered consistent judgment. E.g., Larson v. Norkot Mfg., Inc., 2001 ND 103, ¶ 1, 627 N.W.2d 386, n. 1.

      . United Equitable Life Insurance Company, a subsidiary of United Equitable Insurance Company, is in receivership, has been dismissed without prejudice, and is not a party to this appeal.


text:
    2001 ND 144
    Garth EGGL, Plaintiff, Appellee and Cross-Appellant, v. LETVIN EQUIPMENT COMPANY, Defendant, Appellant and Cross-Appellee.
    No. 20000318.
    Supreme Court of North Dakota.
    Aug. 29, 2001.

      George M. Ackre, Ackre Law Firm, Cando, ND, for plaintiff, appellee, and cross-appellant. Appearance by Shawn D. Ackre.
    David F. Senn, Senn Law Office, Dickinson, ND, for defendant, appellant, and cross-appellee.
   MARING, Justice.

[¶ 1] Letvin Equipment Company (“Letvin”) has appealed a judgment in favor of Garth Eggl in Eggl’s suit for damages arising out of Eggl’s purchase of a used tractor. Eggl cross-appealed. We affirm.

I

[¶ 2] In November 1996, Eggl purchased from Letvin a 1985 John Deere 4850 tractor for $47,500. Letvin represented the tractor was in good working condition, and warranted it for “100 hrs or June 1, 1997 whichever is 1st.” A December 13, 1996, Letvin checklist indicated the tractor had 4046 hours on it. The tractor was delivered to Eggl, and he first used it in the spring of 1997. The tractor stalled in the field in the fall of 1997, and Eggl brought it to Devils Lake Equipment Company for repair. An October 7, 1997, Devils Lake Equipment Company invoice indicated the tractor had 4207 hours on it. Eggl next used the tractor in 1998. The tractor stalled again, and it was returned to Devils Lake Equipment Company for more extensive inspection and repair of the power shift transmission.

[¶ 3] Eggl sued Letvin for breach of express and implied warranties, fraud, misrepresentation, and deceit, seeking damages of at least $16,000. After a trial on May 24, 2000, the trial court made the following findings of fact:

10. Upon inspection in 1998 by Devils Lake Equipment Company it was found that the wrong sized o-rings were placed in the tractor prior to plaintiffs acquisition of the tractor. The defective o-rings caused undue wear and tear on the hydraulic system rendering the tractor to not be fit for the purpose for which it was purchased.
11. That as a result of the above-mentioned problems, the tractor was not reasonably fit for purpose for which it was purchased and was not of merchantable quality at the time of the sale, being not fit for use as a tractor for farming purposes, and accordingly in a state of breach of the implied warranties of merchantability and fitness for purpose of use intended.

The trial court issued the following conclusions of law:

5.
The fact that it took a portion of two farming seasons to establish by Plaintiff that the tractor was not reasonably fit for the purpose intended .as outlined in § 51 — 07—01 [sic] of the North Dakota Century Code under these circumstances would be within a reasonable time limit for discovery.
6.
That the o-rings as referred to above were defective and were the primary cause of the tractor’s failure. It makes no difference whether o-rings were defective because of replacement by Letvin Equipment or because of the original installation by a manufacturer.
7.
That case law has established that a buyer subject to the circumstances occurring herein is not limited to a remedy of [rescission] but instead may seek recovery of damages resulting from that defect ... That the court finds the Defendant is not responsible for damages with regard to the first instance of repair in 1997 but ... finds that the Defendant is responsible for the second and successful attempt to repair said tractor in 1998. Said damages being established in the total of $11,925.78.

[¶ 4] Judgment was entered for Eggl against Letvin for $11,925.78 and costs of $2,044.92 on September 14, 2000. Letvin appealed, and Eggl cross-appealed.

II

[¶ 5] Letvin contends (1) the finding it breached an implied warranty of merchantability is clearly erroneous; (2) the findings the wrong sized o-rings were placed in the tractor and caused Eggl’s problems are clearly erroneous; (8) using the tractor for more than 160 hours and six months was not a reasonable time within which to detect any defects existing at the time of sale; and (4) the court erred in concluding the o-rings caused the tractor’s failure and it makes no difference whether they were installed by Letvin or the manufacturer. In his cross-appeal, Eggl contends the trial court erred in failing to award damages for the first repair attempt.

[¶ 6] Findings of fact are subject to a clearly erroneous standard of review under N.D.R.Civ.P. 52(a). Schroeder v. Buchholz, 2001 ND 36, ¶ 7, 622 N.W.2d 202. “A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to suppo' ; it, or if, although there is some evidence to support it, on the entire evidence we are left with a definite and firm conviction a mistake has been made.” Schmitz v. Schmitz, 2001 ND 19, 117, 622 N.W.2d 176. Conclusions of law are fully reviewable. Pfeifle v. Tanabe, 2000 ND 219, ¶ 7, 620 N.W.2d 167.

Ill

[¶ 7] Letvin contends the finding it breached an implied warranty of merchantability is clearly erroneous.

[¶ 8] Section 41-02-31, N.D.C.C. (U.C.C. § 2-314) provides, in part:

1. Unless excluded or modified (section 41-02-33), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.
2. Goods to be merchantable must be at least such as:
c. Are fit for the ordinary purposes for which such goods are used....

A trial court’s determinations on questions of breach of warranty are treated as findings of fact subject to the clearly erroneous standard of N.D.R.Civ.P. 52(a). Korol v. Aronson, 360 N.W.2d 684, 685 (N.D.1985). Whether a product’s non-conformity substantially impairs its value to the buyer is a question of fact. Erling v. Homera, Inc., 298 N.W.2d 478, 481 (N.D.1980). “A party alleging a breach of warranty has the burden of establishing the existence of a warranty, a breach of warranty, and that the breach of warranty proximately caused the damages alleged.” Hagert v. Hatton Commodities, Inc., 384 N.W.2d 654, 657 (N.D.1986). It has been held a new car’s “inoperability established] its failure to conform to the contract of sale, ” and the overheating of an engine “is of such significance as to constitute a nonconformity without evidence as to the specific technical cause thereof.” Capitol Dodge Sales, Inc. v. Northern Concrete Pipe, Inc., 131 Mich.App. 149, 34.6 N.W.2d 535, 539 n. 11 (1983). A farm tractor which cannot be used .to pull an implement because the tractor’s transmission is inoperable is not fit for the ordinary purposes for which such goods are used. See Gimbel v. Runtz, 286 N.W.2d 501 (N.D.1979); Hoffman Motors, Inc. v. Enockson, 240 N.W.2d 353 (N.D.1976); Bratberg v. Advance-Rumely Thresher Co., 61 N.D. 452, 238 N.W. 552 (1931); Dwinnell v. Boehmer, 60 N.D. 302, 234 N.W. 655 (1931).

[¶ 9] Eggl testified he has two tractors; before this tractor needed repair, he used it only for pulling a 26½ foot cultivator with 7-inch sweeps, which is the same cultivator he pulled with his other tractor, which is ten years older, and has 50 fewer horsepower; the tractor “just kept quitting in the field”; after the tractor was repaired he bought and has been using a 32 foot cultivator on the tractor; in his opinion, the tractor could not do the work it was designed for when he bought it, was not fit for the purpose for which he purchased it, and was defective when he purchased it; and since being repaired, “the tractor now is being used for the type of work it was designed for.” Kelly Foil-man, a mechanic, testified the tractor should “actually play with” a 26 ½ foot cultivator, which it should pull “real easy,” and the “tractor is designed to do that type of work and much more.” Other evidence that the tractor was not merchantable when Eggl purchased it is hereinafter set forth in ¶¶ 11 and 12. We conclude the trial court’s finding the tractor breached the implied warrant of merchantability is not clearly erroneous.

IV

[¶ 10] Letvin contends the trial court’s findings the wrong sized o-rings were placed in the tractor and they caused Eggl’s problems are clearly erroneous. The trial court found the wrong sized o-rings were installed in the tractor before Eggl acquired it and the defective o-rings caused the tractor to be unfit for the purpose for which it was purchased. There was evidence the o-rings, regardless of their size, were cut and the defective o-rings caused the tractor to fail.

[¶ 11] Kelly Follman, a mechanic with Devils Lake Equipment Company, testified he has worked on the hydraulic and transmission systems of many John Deere 4850 tractors; if the hydraulic system is “malfunctioning the tractor doesn’t function”; he worked on the tractor in the summer of 1998; “two packings [o-rings] that go between the clutch housing and transmission” were cut, which “[a]fter a period of time” would cause the tractor to “stop or stall”; “[t]he transmission was shot, period”; and, because of the condition of the o-rings, “it was losing lube pressure ... and it wasn’t engaging the [clutch] packs ... so something had to slip someplace ... it got warm and started taking some of the facings off because it wasn’t engaged all the way.” Follman further testified:

Q Would the o-rings naturally wear out that way, in your opinion?
A No, that’s clean cut, it’s sliced. I don’t think so.
Q Do you have an opinion how the o-rings would have gotten that way?
A Oh, I don’t know. They could’ve been put in wrong. It could be old ones. It could be someone sliced them or they weren’t all the way lined up in the hole when they put the transmission case back on and sliced it and they pushed them out. It could be just about anything.
He only had the tractor a little bit over 200 hours and I think the problem existed well before that.
... the reason it wouldn’t work is because among other things there were defective o-rings ... That caused the problem ... That had occurred prior to Garth Eggl acquiring or purchasing the tractor.

[¶ 12] David Hoesel, Letvin’s service manager, testified the split o-rings and a new one are “basically the same size”; the o-rings were not “installed in the passage like it should be” during assembly of the transmission at the factory; Devils Lake Equipment Company “overlooked the problem” the first time; the o-rings “even if they are damaged, did not cause the problem”; and the problem was caused by “failure of the transmission pump.”

[¶ 13] “A choice between two permissible views of the evidence is not clearly erroneous.” Hurt v. Hurt, 2001 ND 13, ¶ 16, 621 N.W.2d 326. There is evidence supporting the finding defective o-rings rendered the tractor unfit for the purpose for which it was purchased and the finding is not clearly erroneous.

V

[¶ 14] Letvin contends using the tractor for more than 160 hours and six months was not a reasonable time within which to detect any defects existing at the time of the sale of the tractor to Eggl.

[¶ 15] Section 51-07-07, N.D.C.C., provides:

Any person purchasing any gas or oil burning tractor, gas or steam engine, or harvesting or threshing machinery for that person’s own use has a reasonable time after delivery for the inspection and testing of the same, and if it does not prove to be reasonably fit for the purpose for which it was purchased, the purchaser may rescind the sale by giving notice, within a reasonable time after delivery, to the parties from whom any such machinery was purchased, or the agent who negotiated the sale or made delivery of such personal property, or the agent’s successor, and by placing the same at the disposal of the seller. Any provision in any written order or contract of sale, or other contract, which is contrary to any of the provisions of this section, hereby is declared to be against public policy and void.

The statute provides a purchaser of a tractor a reasonable time to ascertain its fitness for the purpose for which it was purchased and to rescind the sale if it is unfit. Uhrig v. J.I. Case Threshing Machine Co., 64 N.D. 189, 197, 250 N.W. 922, 925 (1933). “Whether the right to rescind is exercised within a reasonable time is to be determined from all the circumstances.” Dwinnell v. Boehmer, 60 N.D. 302, 234 N.W. 655 Syllabus ¶ 4 (1931). “Whether machinery is reasonably fit for the purpose for which it was purchased, and whether a contract of purchase has been rescinded within a reasonable time or not, are questions of fact for the jury.” Bratberg v. Advance-Rumely Thresher Co., 61 N.D. 452, 454, 238 N.W. 552, 554, Syllabus ¶ 10 (1931). Thus, under N.D.C.C. § 51-07-07, a product’s fitness and a reasonable time to rescind are fact questions.

[IT 16] “Section 51-07-07, NDCC, does not provide for any remedy other than rescission.” Hoffman Motors, Inc. v. Enockson, 240 N.W.2d 353, 355 (N.D.1976). Although Eggl seeks damages, rather than rescission, N.D.C.C. § 51-07-07, does play a part:

We conclude that the provision in § 51-07-07 relating to voiding a disclaimer of warranty can be relied upon by one who does not demand rescission.
Once the disclaimer provision is voided, Section 41-02-31, NDCC (2-314, UCC), injects an implied warranty of merchantability into the contract for the sale of the tractor.

Enockson, 240 N.W.2d at 355.

[¶ 17] Under N.D.C.C. § 41-02-31 (U.C.C. § 2-314), to be merchantable, goods must be at least “fit for the ordinary purposes for which such goods are used.” Section 41-02-70(3)(a), N.D.C.C. (U.C.C. § 2-607), provides: “If a tender has been accepted: a. The buyer must within a reasonable time after the buyer discovers or should have discovered any breach notify, the seller of breach or be barred from any remedy.” Section 41-02-71(2), N.D.C.C. (U.C.C. § 2-608), provides a buyer’s revocation of acceptance of goods “must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects” and the revocation “is not effective until the buyer notifies the seller of it.” “What is a reasonable time for taking any action depends on the nature, purpose, and circumstances of such action.” N.D.C.C. § 41-01-14(2) (U.C.C. § 1-204).

[¶ 18] A breach of a warranty may be a nonconformity triggering a buyer’s right to revoke acceptance of goods. Campbell Farms v. Wald, 1998. ND 85, ¶ 14, 578 N.W.2d 96; Hart Honey Co. v. Cudworth, 446 N.W.2d 742, 745 (N.D.1989). “A ‘reasonable time to inspect’ under the UCC [§ 2-606] must allow an opportunity to put the product to its intended use, or for testing to verify its capability to perform as intended.” Capitol Dodge Sales, Inc. v. Northern Concrete Pipe, Inc., 131 Mich.App. 149, 346 N.W.2d 535, 539 (1983). Questions of nonconformity with a contract, substantial impairment of value, and timely notice of revocation are questions of fact. Campbell Farms, at ¶ 14; Cudworth, at 745. “The sufficiency of notice and what constitutes a reasonable time within which to give notice of breach are questions of fact.” Stamper Black Hills Gold Jewelry, Inc. v. Souther, 414 N.W.2d 601, 605 (N.D.1987).

One commentator has written that “[i]f any pattern is emerging it is that the more severe the defect, the greater the time within which the buyer has the right to invoke the remedy....” Dues-enberg, General Provisions, Sales, Bulk Transfers and Documents of Title, 28 Bus.Law. 805, 827 (1973).

James J. White & Robert S. Summers, Uniform Commercial Code § 8-3, p. 448 n. 22 (4th ed.1995). While there are situations in which a buyer has delayed so excessively that his actions are untimely as a matter of law, generally the question of whether a notification of revocation of acceptance was given within a reasonable time is a fact question. Mercedes-Benz of North America, Inc. v. Norman Gershman’s Things To Wear, Inc., 596 A.2d 1358, 1363 (Del.Sup.1991) (upholding jury finding revocation of acceptance of a new car after 22 months and 22,000 miles was reasonable). “Whether a party’s revocation of acceptance is effective in any given case is dependent upon the facts and circumstances surrounding the revocation, and is normally a question for the trier of fact.” Triad Systems Corp. v. Alsip, 880 F.2d 247, 249 (10th Cir.1989). Thus, under N.D.C.C. § 41-02-31 (U.C.C. § 2-314), as under N.D.C.C. § 51-07-07, the time for discovering a breach of warranty and what is a reasonable time for revocation of acceptance are fact questions.

[¶ 19] In Gimbel v. Kuntz, 286 N.W.2d 501, 507 (N.D.1979), this Court addressed what is a reasonable time within which to discover defects in a tractor:

The purchaser of a tractor designated in Section 51-07-07, N.D.C.C., has a reasonable time after delivery to inspect and test the tractor to determine if it is reasonably fit for the purpose for which it was purchased. We believe that the term “reasonably fit for the purpose for which it was purchased” has to mean that the tractor is free of serious defects which would render it inoperable, and that, under ordinary and reasonable operating conditions, the tractor will perform as intended and expected.
Certainly, every mechanical failure in a new and complex machine does not render the machine unreasonably fit for the purpose for which it was purchased. ... So at the outset, it may be necessary to distinguish between defects which merely require minor repair to correct, and significant defects which render the machine inoperable, and remain after the seller has been afforded a reasonable opportunity to correct.

In J.I. Case Credit Corp. v. Stark, 64 Wash.2d 470, 392 P.2d 215, 221 (1964), the court said a purchaser’s use of a combine “for the harvest season of 1959, and part of 1960, consisting of about 2 months or less of total operation ... did not constitute more than a reasonable time to ascertain if the machine could be made to function properly.” In Triad Systems Corp., 880 F.2d at 249, the court said, “Mr. Alsip’s use of the Triad [computer] system for more than two years after it was first delivered was not unreasonable.” In Dwinnell v. Boehmer, 60 N.D. 302, 234 N.W. 655 (1931), the seller delivered a tractor on September 18 or 19, 1928. The buyer had problems with it and did not make the first payment. On February 14, 1929, the buyer complained of defects in the tractor. On May 14, 1929, the seller sued for the purchase price. The defendant answered, giving notice of rescission. The court held the notice of rescission on May 14, 1929, was not too late. Id. at 309, 234 N.W. at 658.

[¶ 20] In light of the circumstances and the cited decisions on determining a reasonable time, we conclude the trial court’s finding that the time involved here, during which relatively few hours were placed on the tractor, was “within a reasonable time limit for discovery” is not clearly erroneous.

VI

[¶ 21] Letvin contends the trial court erred in concluding it makes no difference whether the o-rings were installed by Letvin or the manufacturer. This Court has addressed such an issue:

The buyer’s right of revocation is not conditioned upon whether it is the seller or the manufacturer that is responsible for the nonconformity. Under § 41-02-71 (2-608), N.D.C.C., a buyer is entitled to revoke his acceptance of a unit if a “nonconformity substantially impairs its value to him,” regardless of whether it is the seller or the manufacturer that is responsible for the nonconformity.

Troutman v. Pierce, Inc., 402 N.W.2d 920, 922-23 (N.D.1987). See also Gimbel v. Kuntz, 286 N.W.2d 501, 508 (N.D.1979) (“The Uniform Commercial Code provides for recovery in warranty for all types of loss resulting from un-merchantable products, without regard to fault”)- Whether it was Letvin or the tractor’s manufacturer who was responsible for the defect giving rise to Eggl’s right to recover damages, the tractor involved here was not reasonably fit for the purpose for which it was purchased, and thereby in breach of the implied warranty of merchantability. We conclude the trial court did not err in concluding “[i]t makes no difference whether o-rings were defective because of replacement by Letvin Equipment or because of the original installation by a manufacturer.”

VII

[¶22] Eggl has cross-appealed, contending the trial court erred in failing to award damages for the first attempt to repair the tractor. In a letter to the parties’ attorneys, the court explained “it is my opinion that Letvin cannot be held responsible for the failure of the repairman chosen by Eggl to identify and remedy the defect at the initial repair attempt.”

[¶ 23] Eggl argues:

We believe and submit that the Court did error [sic] in failing to award the Appellee/Cross Appellant damages for the first instance when the tractor stalled in the amount of $1,941.51. In that the tractor undoubtedly stalled for the same reason as is shown by testimony. It took a substantial period of time to discover the reason and until the reason was discovered an appropriate solution to the problem could not be accomplished. This all would fall under appropriate damages that should have been awarded to Mr. Eggl. Certainly the burden of costs should, not rest on the Appellee/Cross-Appellant in this matter especially since the Court did award damages for the ultimate repair.

Without supportive reasoning or citations to relevant authorities, Eggl’s argument is without merit. E.g., In re J.A.G., 552 N.W.2d 317, 324 (N.D.1996); Hodek v. Greater Nelson County Consortium, 520 N.W.2d 825, 829 (N.D.1994); Friedt v. Moseanko, 484 N.W.2d 861, 863 (N.D.1992); Lang v. State, 2001 ND App 2, ¶ 8, 622 N.W.2d 238. We conclude the trial court did not err in failing to award damages to Eggl for the initial ineffective attempt to identify and remedy the defect in the tractor.

VIII

[¶ 24] The judgment is affirmed.

[¶ 25] GERALD W. VANDE WALLE, C.J., and WILLIAM A. NEUMANN, DALE V. SANDSTROM and CAROL RONNING KAPSNER, JJ„ concur.

      . As the trial court observed at trial: "I mean, within a couple hundred hours it stopped in the middle of the field. That’s not what a tractor is supposed to do.”