author: CRIPPEN, Judge.

text:
    STATE of Minnesota, Respondent, v. Robert S. ZEIMET, Appellant.
    No. A03-273.
    Court of Appeals of Minnesota.
    Jan. 13, 2004.
    Mike Hatch, Attorney General, and Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, Melissa M. Saterbak, Certified Student Attorney, St. Paul, MN, for respondent.
    John M. Stuart, State Public Defender, James R. Peterson, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by LANSING, Presiding Judge; WRIGHT, Judge; and CRIPPEN, Judge.
   OPINION

CRIPPEN, Judge.

Appellant, who was convicted of a felony-level enhanced DWI offense because of qualified prior impaired-driving incidents, disputes the enhancement of his offense based on prior civil incidents. Under the governing statutes, a DWI offense is enhanced to a felony level if the defendant has three or more qualified prior impaired-driving incidents, either civil or criminal.

Appellant acknowledges the existence of six impaired-driving incidents, four criminal and two civil, that qualify to enhance his DWI offense. Under the sentencing guidelines, prior criminal incidents not used for enhancement must be used in calculating appellant’s criminal history score upon conviction. See Minn. Sent. Guidelines H.B.6.; Minn. Sent. Guidelines cmt. II.B.301. Appellant disputes the prosecutor’s use of two prior civil impaired-driving incidents and one criminal incident for enhancement purposes, thus preserving for criminal history score calculation purposes three of the four prior criminal impaired-driving incidents. As a result of the application of these three criminal incidents, appellant’s criminal history score was increased by one point and his presumptive sentence increased from 66 months to 72 months. Because we determine, as did the trial court, that the statute unambiguously permits this disputed election by the prosecutor, we affirm.

FACTS

Appellant’s record included six qualified prior impaired-driving incidents between 1995 and 2002. The first two incidents were civil in nature, while the last four incidents were criminal convictions. The prosecutor elected to use appellant’s two civil qualified prior impaired-driving incidents and one criminal qualified prior impaired-driving incident to enhance the DWI charge to a felony level. The remaining criminal incidents, which consisted of gross misdemeanor convictions, became the basis for appellant’s criminal history score.

The trial court found that governing laws unambiguously permit the prosecutor’s election to use appellant’s civil qualified prior impaired-driving incidents for felony enhancement and thus preserve appellant’s criminal qualified prior impaired-driving incidents for criminal history score calculation purposes.

ISSUE

Did the trial court properly permit the prosecutor to use civil incidents for enhancement purposes?

ANALYSIS

We review a trial court’s interpretation of the sentencing guidelines de novo. State v. Jones, 587 N.W.2d 854, 855 (Minn.App.1999). “Every law shall be construed, if possible, to give effect to all its provisions.” Minn.Stat. § 645.16 (2002). The objective of statutory interpretation is to ascertain and effectuate the legislature’s intent. Id. If the statutory language is unambiguous, an appellate court relies on its plain meaning, which manifests legislative intent. In re Estate of Nordlund, 602 N.W.2d 910, 913 (Minn.App.1999), review denied (Minn. Feb. 15, 2000). This court presumes that the legislature intends to favor the public interest over any private interest. Minn.Stat. § 645.17, subd. (5) (2002).

Appellant contends that the DWI felony-enhancement statute, Minn.Stat. § 169A.24, subd. 1(1) (2002), is ambiguous when viewed in conjunction with the sections of the sentencing guidelines that govern criminal history point calculation. This section declares that a driving-while-impaired offense constitutes first-degree driving while impaired if the violation is committed “within ten years of the first of three or more qualified prior impaired driving incidents .Id.

Prior nonfelony criminal convictions used for enhancement purposes cannot also be used for augmenting an offender’s criminal history score. Minn. Sent. Guidelines II.B.6. But prior misdemeanor and gross misdemeanor DWI convictions not used for enhancement must be used to augment the criminal history score. Minn. Sent. Guidelines cmt. II.B.301. Civil incidents may be used for enhancement but cannot be used in calculating the criminal history score. See Minn.Stat. §§ 169A.03, subds. 21, 22, .24, subd. 1(1); Minn. Sent. Guidelines II.B.

Appellant argues that these provisions permit the interpretation employed by the prosecutor and the trial court that a prosecutor is free to use civil incidents to enhance the DWI offense to a felony but also permit the interpretation that criminal incidents should be used for criminal history points and not enhancement. This issue arises whenever a person has more than three qualified prior impaired-driving incidents that might be used for enhancement, and where at least one is civil in nature and one is criminal in nature. Appellant asserts that precedent prohibiting and discouraging prosecutorial manipulation and favoring leniency should resolve what he sees as an ambiguity.

Appellant incorrectly contends that there is no provision for interplay between Minn.Stat. ch. 169A and the sentencing guidelines. The guidelines provide that “prior misdemeanor and gross misdemean- or sentences for violations under 169A.20 ... shall be used in the computation of the misdemeanor/gross misdemeanor point when the current conviction offense is ... first degree (felony) driving while impaired.” Minn. Sent. Guidelines cmt. II.B. 301 (emphasis added). The trial court concluded that there was no ambiguity because Minn.Stat. § 169A.03, subd. 22, permits the prosecutor to elect to use prior civil impaired-driving incidents for enhancement and preserve criminal offenses for use in criminal history calculations. The trial court found it equally clear that there is no stated limit on a prosecutor’s choice to use civil rather than criminal offenses for enhancement purposes, regardless of its ultimate effect on a defendant’s criminal history score and sentencing. Having independently reviewed Minn.Stat. § 169A.24 and the sentencing guidelines, we conclude that the language at issue is unambiguous in this regard.

We are mindful that appellant’s interpretation of the statute requires a deliberate disregard for the statutory language. It not only creates limits on DWI enhancement where no limits are stated, but also renders civil qualified prior impaired-driving incidents of no consequence in many situations despite the legislature’s express provision for their use .for enhancement purposes. See Minn.Stat. § 645.16 (mandating that courts not disregard the letter of the law). Because Minn.Stat. § 169A.24, subd. 1(1) and Minn. Sent. Guidelines II.B.6 are not ambiguous, we do not reach appellant’s arguments regarding a basis for resolving an ambiguity.

DECISION

Under the Minnesota Sentencing Guidelines and governing statutes, the prosecutor was properly permitted to use appellant’s prior civil impaired-driving incidents for enhancement purposes and preserve several of appellant’s prior criminal impaired-driving incidents for use in calculating appellant’s criminal history score.

Affirmed.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

      . For first-degree felony DWI, the sentencing guidelines provide that one criminal history point is assigned for every four units that stem from prior misdemeanor/gross misdemeanor alcohol-related convictions. See Minn. Sent. Guidelines II.B.3. Each alcohol-related gross misdemeanor is assigned two units. Id. With consideration of only one of appellant's previous gross misdemeanors, his criminal history score would be five points plus three units. When three previous gross misdemeanors are used, appellant's criminal history score is six points plus three units. The presumptive sentence for the current offense with a criminal history score of five points is 66 months. The presumptive sentence with a score of six points is 72 months.


source: Caselaw Access Project

author: WRIGHT, Judge.

license: Public Domain

text:
    MINNESOTA PROPERTY INSURANCE, Respondent, v. William SLATER, et al., Respondents, Carol Pierce, Appellant.
    No. A03-556.
    Court of Appeals of Minnesota.
    Jan. 20, 2004.

      Kevin S. Carpenter, Carpenter Injury Law Office, St. Cloud, MN, for appellant.
    Daniel A. Beckman, Kathleen M. Loucks, Gislason & Hunter, et. al. LLP, Minnetonka, MN, for respondent Minnesota Property Insurance.
    William Slater, Staples, MN, respondent pro se.
    Marlene Slater, Staples, MN, respondent pro se.
    Considered and decided by Chief Judge TOUSSAINT, Presiding Judge; MINGE, Judge; and WRIGHT, Judge.
   OPINION

WRIGHT, Judge.

In this appeal from summary judgment in favor of respondent Minnesota Property Insurance, appellant Carol Pierce argues that the district court improperly determined that two insurance policy exclusions applied. Because the district court did not err in its interpretation of the terms of the insurance policy, we affirm.

FACTS

William Slater purchased a 1985 International cabover truck on a rent-to-own basis from Larry Hanson. The truck was operable but in need of general repair to bring it into compliance with Minnesota Department of Transportation (MnDOT) regulations for commercial use of a motor vehicle. Slater began making repairs on the truck at his home. Slater raised the cab of the truck in order to complete the repairs. Once the repair work was completed, Slater intended to use the truck to pull a belly dump trailer in his hauling business.

During a visit to Slater’s home, appellant Carol Pierce and her husband were looking at the truck when the cab fell on Pierce and injured her. Testimony differs as to the actual reason the truck fell. By affidavit testimony, Pierce stated that she was not touching the vehicle at the time it fell. Slater’s deposition testimony indicates that the truck was off center and Pierce was helping to push the cab back to the center position. Both Slater and Pierce agree that Pierce’s injuries were caused by the cab when it fell.

Pierce brought a personal injury lawsuit against Slater, who sought coverage for the damages arising from the accident under his homeowners policy with respondent Minnesota Property Insurance. Minnesota Property Insurance declined coverage, claiming that the accident was excluded under the policy. Minnesota Property Insurance commenced a declaratory judgment action seeking a ruling that Pierce’s injuries were not covered by the insurance policy. Pierce and Minnesota Property Insurance brought cross-motions for summary judgment. The district court entered judgment in favor of Minnesota Property Insurance, concluding that two policy exclusions applied and precluded coverage. This appeal followed.

ISSUES

I. Did the district court err in concluding that the “maintenance or use” of a motor vehicle exclusion of the homeowners insurance policy precluded coverage?

II. Did the district court err in concluding that the business-pursuits exclusion of the homeowners insurance policy precluded coverage?

ANALYSIS

On appeal from summary judgment, we determine whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). The question of whether an insurer has a duty to defend is a legal question subject to de novo review. Metro. Prop. & Cas. Ins. Co. & Affiliates v. Miller, 589 N.W.2d 297, 299 (Minn.1999). “Interpretation of an insurance policy and application of the policy to the facts in a case are questions of law[, which] we review de novo.” Am. Family Ins. Co. v. Walser, 628 N.W.2d 605, 609 (Minn.2001).

Provisions in an insurance policy are interpreted according to their plain meaning, consistent with what a reasonable person in the insured’s position would have understood the words to mean. Farmers Home Mut. Ins. Co. v. Lill, 332 N.W.2d 635, 637 (Minn.1983). Insurance-exclusion clauses are strictly interpreted against the insurer. Home Mut. Ins. Co. v. Snyder, 356 N.W.2d 780, 783 (Minn.App.1984). An insurer that denies coverage because of a policy exclusion bears the burden of proving that the exclusion applies. Milwaukee Mut. Ins. Co. v. City of Minneapolis, 307 Minn. 301, 307, 239 N.W.2d 472, 475 (1976).

I.

Pierce argues that the district court erred in determining that the “maintenance or use” exclusion of the homeowners insurance policy applies to avoid coverage for injuries sustained by Pierce. The relevant exclusions in Slaters homeowners insurance policy provide:

Medical Payments to Others do not apply to “bodily injury” or “property damage”: ...
f. Arising out of:
(1) The ownership, maintenance, use, loading or unloading of motor vehicles or all other motorized land conveyances, including trailers, owned or operated by or rented or loaned to an “insured”;....
This exclusion does not apply to:
(4) A vehicle or conveyance not subject to motor vehicle registration which is: ...
(c) In dead storage on an “insured loeation[.]”

According to the language of the policy, if the injury occurred while the truck was undergoing maintenance, the homeowners insurance policy does not provide coverage unless the dead-storage exception applies. Thus, we must determine as a matter of law, in light of the undisputed facts, (1) whether the truck was undergoing maintenance and (2) whether it was in dead storage. This determination is a question of law. See Cont’l W. Ins. Co. v. Klug, 415 N.W.2d 876, 877-79 (Minn.1987) (reviewing de novo interpretation of insurance policy and application of policy to the facts).

To begin this analysis, we consider whether the vehicle was undergoing maintenance as contemplated by the insurance policy. The term “maintenance or use of a motor vehicle” is used in many automobile insurance policies and is defined by Minn. Stat. § 65B.43, subd. 3 (2002). N. Star Mut. Ins. Co. v. Carlson, 442 N.W.2d 848, 854-55 (Minn.App.1989), review denied (Minn. Sept. 21, 1989). When considering whether the “maintenance or use of a motor vehicle” exclusion of a homeowners insurance policy applied to the accident in question, the Carlson court adopted the definition of the phrase employed by the No-Fault Automobile Insurance statute in section 65B.43, subdivision 3. Id. at 855. Under Minnesota law, “ ‘maintenance or use of a motor vehicle’ is maintenance or use of a motor vehicle as a vehicle, including, incident to its maintenance or use as a vehicle, occupying, entering into, and alighting from it.” Minn.Stat. § 65B.43, subd. 3.

The Minnesota Supreme Court has set out a three-part test to determine if an accident arose out of the “maintenance or use” of a motor vehicle. Klug, 415 N.W.2d at 878. First, “the extent of causation between the [vehicle] and the injury” must be determined. Id. If the requisite degree of causation is established, next a determination must be made as to whether an act of independent significance intervened to break the causal link between the maintenance or use of the vehicle and the injury. Id. Finally, if the causal link is unbroken, whether the accident resulted from the use of the vehicle for transportation purposes must be determined. Id.

Pierce concedes that the first factor of the EJug analysis is not in dispute. The truck caused the injury. We, therefore, proceed to the second King factor about which the district court concluded that,

when the facts of this case are compared with the facts in other reported cases involving the same issue, it is quite clear that the allegedly negligent acts or omissions of Mr. Slater ... did not involve an act independent from the maintenance or repair work that was being done on the truck.

Pierce argues that there were three acts of independent significance to break the causal link between Slater’s maintenance of the truck and Pierce’s injury- — Slater’s negligence in allowing Pierce and her husband to stand near the truck cab, his negligence in failing to warn them that the cab might fall, and his negligence in propping up the cab. We disagree. Because all of Slater’s allegedly negligent acts are related to the maintenance of the vehicle, there is no evidence of an intervening act of independent significance breaking the causal link between the maintenance and the injury.

Slater was fixing leaking hoses on the truck. To do so, he needed to lift the cab and hoist the truck in order to see the area in need of repair. The vehicle’s fall from the position necessary to perform the maintenance directly caused Pierce’s injury. There is conflicting testimony as to Pierce’s role in the maintenance of the vehicle at the time of the injury. But resolution of that factual dispute is not relevant to our determination because the undisputed evidence establishes that Pierce’s injury resulted when the truck fell from the position Slater placed it in to perform the maintenance.

Pierce also contends that, in concluding that there was not an intervening act of independent significance, the district court disregarded the controlling precedent of N. Star Mut. Ins. Co. v. Johnson, 352 N.W.2d 791 (Minn.App.1984), review denied (Minn. Jan. 9, 1985). Johnson involved an accident that occurred when a pickup truck with a sprayer bolted to the bed of the truck was being driven home from a social gathering. The sprayer had two arms that extended to spray chemicals. The left arm of the sprayer suddenly extended and smashed into the windshield of a car traveling in the opposite direction, killing one passenger and injuring two others. Id. The accident victims sued the driver, alleging negligent maintenance of the sprayer, which the driver bolted onto the truck every spring, and failure to operate the truck at a safe speed. Id. North Star, the driver’s farm insurance carrier, argued that, because the sprayer was bolted to the truck, it was part of the vehicle and should be covered under the driver’s automobile insurance policy, not the farm insurance policy which insured against the risk of negligent use or maintenance of farm equipment. Id. at 793. The Johnson court concluded that the negligence in securing the sprayer arms was an independent act unrelated to the operation or use of the vehicle. As such, Johnson’s farm insurance policy applied. Id. at 793-94.

From our review, we conclude that Johnson is inapposite for two reasons. First, the facts here do not demonstrate any causal act or omission that is independent of Slater’s maintenance and repair work. Second, the Johnson court’s rationale focused primarily on the definition of “maintenance” or “use” of farm equipment under the farm insurance policy, not on whether there was an independent act that broke the causal link between the use of the vehicle and the injury. The Johnson court concluded that attaching the farm equipment to the motor vehicle did not prevent the farm insurance policy from covering liability under the motor vehicle exclusion where the farm insurance policy insured against the risk of negligent use or maintenance of farm equipment, such as the sprayer; and the only means of using the farm equipment was in conjunction with a motor vehicle. Id. at 793-94.

The third Klug factor requires the district court to determine whether the accident resulted from the use of the motor vehicle for transportation purposes. In Midwest Family Mut. Ins. Co. v. Karpe, 430 N.W.2d 856 (Minn.App.1988), review denied (Minn. Dec. 21, 1988), this court found that “maintenance” cases, as opposed to “use” cases, automatically satisfy the third factor. Id. at 859-60. “[Maintaining a motor vehicle generally presupposes use of the vehicle for transportation purposes[J” Id. Here, the truck had been driven two days before the accident, and it was being repaired for use in a business involving hauling or transporting dirt. Because Slater’s repair work involved maintenance of a motor vehicle as contemplated by the insurance policy, the third Klug factor also applies here. See Carlson, 442 N.W.2d at 855 (applying the Karpe analysis and finding that the third factor automatically applies).

Pierce next argues that the dead-storage exception to the motor vehicle exclusion applies. She contends that the term “dead storage” is ambiguous; thus, the issue of coverage should be resolved in favor of the insured. Whether the language of an insurance policy is ambiguous is a question of law. St. Paul Fire & Marine Ins. Co. v. Nat’l Computer Sys., Inc., 490 N.W.2d 626, 631 (Minn.App.1992), review denied (Minn. Nov. 17, 1992). We resolve any ambiguity in the terms of an insurance policy against the insurer and in favor of the insured. Id. An ambiguity exists when a word or phrase in an insurance policy is reasonably subject to more than one interpretation. Reinsurance Ass’n of Minn. v. Hanks, 539 N.W.2d 793, 796 (Minn.1995).

Although the insurance policy does not define the term “dead storage,” this court has previously held that a “vehicle undergoing any maintenance could not simultaneously be in dead storage.” Carlson, 442 N.W.2d at 854. As discussed above, Slater’s work on the vehicle constituted maintenance. The truck, therefore, was not in dead storage. Additionally, Slater had driven the truck two days before the accident, and he testified by deposition that the vehicle was drivable at the time of the accident. That the repairs were needed to satisfy MnDOT’s registration requirements for commercial hauling does not render the truck in dead storage. Because the homeowners insurance policy exclusion for “maintenance and use of a motor vehicle” applies, Minnesota Property Insurance is not obligated to defend the insured in this action.

II.

We next consider whether the maintenance of the vehicle arose out of Slater’s business pursuit, establishing another basis for excluding coverage. The insurance policy excludes coverage of claims of bodily injury that “aris[e] out of or in connection with a ‘business’ engaged in by an ‘insured.’ ” The insurance policy’s definition of “business” “include[s] trade, profession or occupation.”

In order for an act to be considered part of a business pursuit it must be an act that contributes to, or furthers the interest of, the business and one that is peculiar to it. It must be an act that the insured would not normally perform but for the business, and must be solely referable to the conduct of the business.

Milwaukee Mut. Ins. Co., 307 Minn, at 309, 239 N.W.2d at 476 (emphasis in original) (quotations omitted).

Our analysis of this issue begins by determining whether repair and maintenance work performed by Slater contributes to or furthers his business. See id. Slater purchased the truck to start his belly dumping business. He was self-employed at the time of the accident. Slater testified that the truck was operable but could not be used in his business until he met MnDOT registration requirements for commercial hauling. The maintenance work was performed to enable the truck to meet MnDOT standards. The business name appeared on the door of the truck, and Slater had a contract for work to begin as soon as the truck met the legal requirements for use in the hauling and transport business. We conclude that Slater’s repair and maintenance work on the truck satisfies the definition of a business pursuit. See id.

Pierce cites a number of cases in support of her argument that the district court interpreted the business-pursuits exclusion too broadly. In Reinsurance Ass’n of Minn. v. Patch, 383 N.W.2d 708, 711 (Minn.App.1986), the insured, who was employed by a construction company and repaired bicycles in his spare time as a hobby, was sued for injuries sustained allegedly due to negligent repairs on a bicycle. The business-pursuits exclusion did not apply because the insured’s bicycle-repair activities were not for the purpose of earning a livelihood, nor did they amount to “a trade, profession or occupation.” Patch, 383 N.W.2d at 712. Here, in contrast, the repair of the vehicle was in direct pursuit of Slater’s livelihood. Indeed, Slater was bringing the vehicle up to MnDOT standards exclusively for business purposes.

In Bankers Standard Ins. Co. v. Olwell, 309 N.W.2d 799 (Minn.1981), a couple with four children provided daycare services in their home for two children in addition to caring for their own children. The two daycare children were injured while in the care of the daycare provider, giving rise to a dispute regarding whether the daycare providers’ homeowners insurance policy provided coverage for the injuries. The Minnesota Supreme Court held that the homeowners policy provided coverage because, although the incident fell under the business-pursuits exclusion, an exception to the exclusion applied because providing care and maintaining a safe environment for children were “clearly incident to [the] nonbusiness regimen of maintaining a household and supervising ... children.” Id.

Here, there is no evidence from which a court could conclude that the maintenance of the vehicle also was incidental to a nonbusiness pursuit. Repair of the vehicle facilitated Slater’s efforts to achieve his business aspirations. Once the repair and maintenance work was completed, the vehicle would be used for Slater’s livelihood. But for the repairs, Slater could not use the truck for its intended purpose, commercial transportation. Without the truck, there would be no business. That Slater had not hauled his first load in the truck does not preclude the truck repair, which was necessary to conduct the hauling and transport business, from satisfying the business-pursuits exclusion of the insurance policy.

DECISION

Because the accident arose out of the maintenance of the vehicle, the insured’s homeowners insurance policy does not provide coverage for the injuries. Moreover, the business-pursuits exclusion in the insurance policy applies because the repair activity was in furtherance of the insured’s business pursuit.

Affirmed.

      . A belly dump trailer unloads its contents through an opening on its underside.


author: G. BARRY ANDERSON, Judge.

text:
    Mario S. VARGAS, Relator, v. NORTHWEST AREA FOUNDATION, Respondent, v. Commissioner of Employment and Economic Development, Respondent.
    No. A03-498.
    Court of Appeals of Minnesota.
    Jan. 20, 2004.

      Albert T. Goins, Sr., Kathryn R. Burke, Minneapolis, MN, for relator.
    Daniel G. Wilczek, Karla C. Robertson, Faegre & Benson, LLP, Minneapolis, MN, for respondent Northwest Area Foundation.
    Lee B. Nelson, Philip B. Byrne, Minnesota Department of Employment and Economic Development, St. Paul, MN, for respondent Commissioner.
    Considered and decided by TOUSSAINT, Chief Judge; G. BARRY ANDERSON, Judge; and PORITSKY, Judge.

       Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

G. BARRY ANDERSON, Judge.

Relator appeals the commissioner’s representative’s decision disqualifying him from the receipt of unemployment benefits as a result of a discharge for employment misconduct for refusing to participate in the employer’s performance-improvement plan. Because we find that relator refused to attempt performance of the improvement plan and because refusal to attempt performance of any part of the improvement plan is employment misconduct, we affirm.

FACTS

Relator Mario Vargas was employed as an Associate Community Liaison for Northwest Area Foundation (NWAF) from June 2000 until June 19, 2002. Ellery july, NWAF’s new Director of Community Activities and Learning, became concerned with various aspects of Vargas’s job performance: Vargas was late and unprepared for meetings; he did not treat team members with respect; and he charged excessive amounts to business credit cards. Vargas’s direct supervisor, Lisa Hinickle, further noticed that Vargas failed to follow through with assignments and reacted negatively to constructive criticism.

On April 9, 2002, Vargas orally complained of a hostile work environment to NWAF’s human resource department and on April 25, he submitted a formal, written complaint. NWAF decided to investigate Vargas’s complaint separately from the company’s concerns with his job performance and gave Vargas’s supervisors permission to continue to work with the employee on the performance issues. After several requests, however, Vargas failed to provide specific instances or documentation for his complaint. NWAF conducted a formal investigation and on June 14, 2002, concluded that Vargas’s complaint was unfounded.

Before notification of Vargas’s complaint, july emailed Vargas to inform him of both july’s concerns and his desire to make clear july’s expectations. On April 18, july met with Vargas to discuss july’s concerns. Vargas asserted that july was a liar and was, among other allegations, racially harassing him. But, when asked to expand, Vargas did not answer. After the meeting, july sent Vargas a second email stating his desire for the two to reach a positive outcome. Hinickle, july, and Vargas met again on May 14, 2002. Vargas was unable to provide july with any specific allegations of harassment as requested but again accused july of harassment and retaliation. When july asked Vargas if he wished to be involved in resolving NWAF’s performance concerns, Vargas refused.

On June 10, 2002, july and Hinickle presented Vargas with a performance-improvement plan they had created and informed him of the requirements, deadlines, and need to complete it in order to remain employed. The first part of the plan, to be completed within seven days, required Vargas to research training programs on the issues july had discussed with him. Vargas said he understood the requirements, and on June 12, 2002, Vargas sent a memo to Hinickle stating that he had fully cooperated with july by attending the meetings, the performance plan was in retaliation for his complaint, and he would only reluctantly be involved.

Seven days later, Vargas had not fulfilled any of the requirements of the plan. Hinickle and july stated that when they asked Vargas whether he intended to complete the plan, he said no. Vargas was sent home, and after another unsuccessful meeting, Vargas’s employment was terminated on June 19, 2002. The commissioner’s representative found that Vargas was discharged for employment misconduct for refusing to participate in the employer’s performance-improvement plan.

ISSUE

Does the evidence sustain the commissioner’s representative’s finding that relator refused to participate in his employer’s performance-improvement plan and does such a refusal, as a matter of law, constitute employment misconduct?

DECISION

Decisions of the commissioner’s representative are accorded particular deference. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn.1995). Whether an employee has engaged in conduct that disqualifies him from unemployment benefits is a mixed question of fact and law. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn.2002). A determination of the commissioner’s representative regarding the reasons for an employee’s separation is a factual determination that is to be reviewed in the light most favorable to the decision and may not be disturbed if there is evidence reasonably tending to süstain the finding. Markel v. City of Circle Pines, 479 N.W.2d 382, 383-84 (Minn.1992). But, whether the acts constitute misconduct is a question of law reviewable de novo on appeal. See Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn.1989).

An employee discharged for employment misconduct is disqualified from receiving unemployment benefits. Minn.Stat. § 268.095, subd. 4(1) (2002). At the time of the commissioner’s representative’s decision, “employment misconduct” was defined as follows

(1) any intentional conduct, on the job or off the job, that disregards the standards of behavior that an employer has the right to expect of the employee or disregards the employee’s duties and obligations to the employer;
(b) Inefficiency, inadvertence, simple unsatisfactory conduct, poor performance because of inability or incapacity, or absence because of illness or injury with proper notice to the employer, are not employment misconduct.

Minn.Stat. § 268.095, subd. 6(a)(1), (b) (2002).

Vargas argues that NWAF has the burden to prove by a fair preponderance of the evidence that Vargas was discharged for employment misconduct. The legislature, however, changed the common law burden-of-proof requirements relating to the grant or denial of unemployment benefits. 1999 Minn. Laws ch. 107, § 40. Employment misconduct is now determined without regard to any common law burden of proof. See MmmStat. §§ 268.069, subd. 2; .101, subd. 2(d); .105, subd. 1(b) (2002). Thus, the commissioner’s representative is to conduct a de novo review of the administrative record in making a final decision. Minn.Stat. § 268.105, subd. 2(c) (2002). The commissioner’s representative is required to make independent findings of fact and such decisions as those facts require. Id. The commissioner’s representative here did so.

Vargas argues there is insufficient evidence to support the finding that he refused to participate in the performance plan. He argues that his testimony contradicted july’s testimony, that there is no further evidence that he refused to participate, and that NWAF actually used the plan as a pretext for firing him because of personal differences. But the record sustains the commissioner’s representative’s determination that Vargas refused to participate.

First, july testified that when asked, Vargas expressly stated he was not planning on participating with the plan. The only evidence that Vargas offers to rebut this testimony is his own testimony denying the statement. When parties have presented conflicting evidence on the record, appellate courts must defer to the commissioner’s ability to weigh the evidence; they may not weigh that evidence on review. Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn.App.1995). Further, at the hearing, Vargas admitted that he had not planned on fully cooperating with the performance plan because he felt that to do so would compromise his harassment claim.

Vargas’s retaliation claim also fails. There is no credible evidence in the record that the employment termination was for any reason other than his refusal to participate, and the record supports the finding of the commissioner’s representative that there was no retaliation. The formal investigation of the complaint included interviews with current and former employees, even after Vargas failed to provide requested information. Further, the investigation was done separately from the process dealing with Vargas’s job performance. In fact, at the time that Vargas’s supervisors first began discussing their concerns, they were unaware that Vargas had made a harassment claim. Additionally, there was no disciplinary action taken against Vargas until he later refused to participate, and july testified that he did not consider taking such action until Vargas failed to cooperate. Viewed in the light most favorable to the commissioner’s representative’s decision, the evidence overwhelmingly supports the finding that Vargas failed to follow the plan.

For an employee’s conduct to constitute employment misconduct, the “conduct must (1) be intentional and (2) disregard standards of behavior the employer has a right to expect or the employee’s duties and obligations to the employer.” Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn.2002). Conduct is intentional if it is deliberate and not accidental. Id. “[T]he word ‘disregard’ includes intent that is separate and distinct from the intent to engage in the conduct in question.” Id. at 150. Therefore, in order to be disqualified on grounds of employment misconduct, there must be a sufficient showing in the record that the employee intended to engage in, or actually engaged in, conduct that “evinced an intent to” ignore or pay no attention to the employee’s duties and obligations or the standards of behavior the employer had a right to expect. Id. A single deliberate act that adversely affects the employer may constitute misconduct. Ress, 448 N.W.2d at 524.

Vargas’s actions were intentional. When july first expressed his and Hinick-le’s concerns, Vargas told them that they were wrong and asserted that they were only making such comments to harass him. The commissioner’s representative found that Vargas was told the requirements of the plan and informed that his job depended on meeting those requirements. Vargas stated that he understood. But he failed to perform any of the steps of the plan and when asked, he stated that he did not intend to perform it. These actions were neither accidental nor inadvertent. Vargas could have cooperated with his employers on the job performance issues and performed the first steps in the performance plan while, at the same time, cooperating with the harassment investigation.

Vargas’s intentional refusal to attempt any part of the improvement plan demonstrates that he consciously disregarded his duties and obligations. An employer has a right to expect that its employees will abide by reasonable instructions and directions. McGowan v. Executive Exp. Transp. Enter., Inc., 420 N.W.2d 592, 596 (Minn.1988). The general rule is that if the request of the employer is reasonable and does not impose an unreasonable burden on the employee, the employee’s refusal to abide by the request constitutes misconduct. Schmidgall, 644 N.W.2d at 804. But “what is ‘reasonable’ will vary according to the circumstances of each case.” Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 91 (Minn.App.1985).

Vargas argues the plan was unreasonable because it was structured in such a way that he did not have a chance to succeed. He claims that the plan was vague, and he was barely given time to read and comprehend it. While we recognize the possibility that performance plans could be used by employers as a pretext to disqualify employees from receipt of benefits, this is not the case here. As discussed above, the evidence supports the finding that there was no retaliation; it does not support Vargas’s arguments that the plan was designed so that he would fail.

The performance plan created no unreasonable burden. NWAF had used similar plans in the past, and july testified that NWAF had utilized one for Vargas on a previous occasion. The current plan clearly highlighted the items that Vargas needed to address. It gave him one week to perform the first step, which simply consisted of researching different training options on the Internet or making phone calls. Finally, Vargas presented no evidence, other than his own subjective belief, that the plan was unreasonable.

Vargas argues that he was unable to complete the plan or failed to do so because of negligence or inability. The unemployment benefits statute provides that “poor performance because of inability or incapacity” does not constitute employment misconduct. Minn.Stat. § 268.095, subd. 6(b). Vargas’s argument is flawed, however, because there is no evidence that he ever tried to comply with the plan. Because Vargas did not even minimally attempt to comply with the plan, there is no “performance” from which he could be excused. This court has previously found that an employee’s intentional refusal to perform a task, as opposed to negligent forgetfulness, supports the commissioner’s representative’s decision that an employee committed misconduct. Bibeau v. Resistance Tech., Inc., 411 N.W.2d 29, 32 (Minn.App.1987) (finding employee misconduct when employee deliberately chose to disobey her employer’s instructions because she believed the order was “stupid”); see also Daniels v. Gnan Trucking, 352 N.W.2d 815, 816 (Minn.App.1984) (stating a refusal to unload a truck was “a deliberate act of insubordination” constituting employment misconduct).

When NWAF gave Vargas the performance plan, they informed him that the fulfillment of the plan was a “decision point” of his employment, and the commissioner’s representative found that Vargas failed to comply. Vargas intentionally disobeyed NWAF’s reasonable instructions that he improve his job performance and committed employment misconduct as defined by MinmStat. § 268.095.

DECISION

Because Vargas refused to participate in the employer’s reasonable performance-improvement plan and because this action constitutes employment misconduct, the commissioner’s representative did not err in disqualifying Vargas from unemployment benefits.

Affirmed.

      . The record and briefs indicate that ellery july does not capitalize his name as a matter of personal preference.

      . The definition of "employment misconduct” was amended, effective August 1, 2003. 2003 Minn. Laws 1st Spec. Sess., ch. 3, art. 2, §§ 13, 20(g). The new legislation reads as follows:
      (a) Employment misconduct means
      any intentional, negligent, or indifferent conduct, on the job or off the job (1) that evinces a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that demonstrates a substantial lack of concern for the employment.
      Inefficiency, inadvertence, simple unsatisfactory conduct, a single incident that does not have a significant adverse impact on the employer, conduct an average reasonable employee would have engaged in under the circumstances, poor performance because of inability or incapacity, good faith errors in judgment if judgment was required, or absence because of illness or injury with proper notice to the employer, are not employment misconduct.

      . It appears from the record that NWAF went well above and beyond the call of duty in working with Vargas. Despite the very clear message from Vargas that he did not intend to participate in any performance-improvement process, multiple opportunities were afforded to him to do so, and even after he referred to july as a liar, his supervisors continued to attempt to work with him, all to no avail. Vargas did not initially question the performance plan nor did he argue that it was onerous or unduly burdensome.


author: NEUMANN, Justice.

text:
    2004 ND 6
    Matthew EAGLEMAN, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
    No. 20030149.
    Supreme Court of North Dakota.
    Jan. 14, 2004.

      Robert Charles Fleming, Cavalier, N.D., for petitioner and appellant.
    Lonnie Olson, State’s Attorney, Devils Lake, N.D., for respondent and appellee.
   NEUMANN, Justice.

[¶ 1] Matthew Eagleman appealed from an order summarily dismissing his application for post-conviction relief. We conclude Eagleman has raised a genuine issue of material fact whether he received ineffective assistance of counsel because his trial lawyer did not investigate or raise an issue of subject matter jurisdiction, entitling Eagleman to an evidentiary hearing on his post-conviction application. We, therefore, reverse and remand for further proceedings.

I

[¶2] On September 19, 2002, Eagle-man pleaded guilty to the felony of gross sexual imposition and to the misdemeanor of harboring a runaway minor. On the felony, Eagleman was sentenced to five years incarceration, with credit for time served, and the balance of the sentence was suspended for a period of four years during which time he was on supervised probation. On the misdemeanor, Eagle-man was sentenced to one year incarceration, all of which was suspended for a period of two years. Eagleman’s probation was subsequently revoked.

[¶ 3] On April 17, 2003, Eagleman filed an application for post-conviction relief, asserting that his trial lawyer provided ineffective assistance. Eagleman claims the crimes to which he pleaded guilty were committed in Canada and, therefore, the North Dakota trial court was without subject matter jurisdiction. He asserts his trial lawyer failed to investigate or raise this jurisdictional issue before the trial court and, Eagleman was, therefore, denied his constitutional right to effective assistance of counsel. The trial court concluded Eagleman’s claim is without merit and summarily dismissed the application for post-conviction relief without a hearing.

II

[¶ 4] The explicit purpose of the Uniform Post-Conviction Procedure Act is to provide a method to develop a complete record to challenge a criminal conviction. Wilson v. State, 1999 ND 222, ¶ 13, 603 N.W.2d 47. The Act allows summary disposition of an application for post-conviction relief only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Id.; N.D.C.C. § 29-32.1-09(1).

[¶ 5] The procedure on a motion for the summary disposition of a petition for post-conviction relief is similar to that followed on a motion for summary judgment. Weaver v. State, 2003 ND 47, ¶ 5, 658 N.W.2d 352. The movant for summary disposition bears the burden of showing there is no dispute as to either the material facts or the inferences to be drawn from undisputed facts, and that the movant is entitled to judgment as a matter of law. Id. If the moving party initially shows there is no' genuine issue of material fact, the burden shifts to the non-movant to demonstrate there is a genuine issue of material fact. Id. We review a summary denial of post-conviction relief as we would review an appeal from summary judgment. Id. The party opposing the motion for summary disposition is entitled to all reasonable inferences at the preliminary stages of a post-conviction proceeding and is entitled to a hearing if a reasonable inference raises a genuine issue of material fact. Whiteman v. State, 2002 ND 77, ¶ 7, 643 N.W.2d 704.

[¶ 6] Ineffective assistance of counsel is one ground for relief from a criminal conviction under the Act. N.D.C.C. § 29 — 32.1—01(l)Ca); Woehlhoff v. State, 487 N.W.2d 16, 17 (N.D.1992). Ordinarily, a claim of ineffective assistance of counsel should be resolved in a post-conviction relief proceeding so the parties can fully develop a record on the issue of counsel’s performance and its impact on the defendant’s case. State v. Palmer, 2002 ND 5, ¶ 12, 638 N.W.2d 18. A defendant claiming ineffective assistance of counsel must establish two elements: (1) counsel’s performance was deficient, and (2) counsel’s deficient performance prejudiced the defendant. Id. at ¶ 11. To demonstrate prejudice, the defendant must establish a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different, and the defendant must specify how and where trial counsel was incompetent and the probable different result. Id.

[¶ 7] Eagleman asserts his trial lawyer provided ineffective assistance of counsel because he did not investigate or raise the issue of subject matter jurisdiction. Ea-gleman claims the criminal acts for which he was charged and to which he pleaded guilty occurred in Canada, not in Ramsey County, and, consequently, the trial court did not have subject matter jurisdiction. Eagleman supported his assertions with an affidavit by the victim stating that she and Eagleman only had sex one time and it occurred in Canada. The State, as the movant for summary disposition, had the burden of demonstrating there is no genuine issue of material fact. It did not file any affidavits relevant to this issue and has provided only an unsigned transcript of a taped interview with the victim.

[¶ 8] A voluntarily entered plea of guilty constitutes a waiver of only non-jurisdictional defects. State v. Willey, 381 N.W.2d 183, 186 (N.D.1986). However, a plea of guilty to the crime as charged constitutes an admission of the facts alleged in the criminal complaint. State v. Cook, 344 N.W.2d 487, 488 (N.D.1984). An unconditional guilty plea constitutes an admission of all the essential elements of the crime charged, including admission of jurisdictional facts. State v. Tinsley, 325 N.W.2d 177, 179-80 (N.D.1982). In Tins-ley, the defendant pleaded guilty to a charge of theft of property. He later filed an application for post-conviction relief, and on appeal from its denial asserted the trial court was without jurisdiction to impose sentence upon him because all the elements of the crime charged were committed outside the state boundaries. This Court held that the defendant’s plea of guilty to the crime as charged constituted an admission of the facts alleged in the complaint, including the place of commission of the offense, and that the trial court had jurisdiction to accept the plea of guilty and to render sentence. Tinsley, 325 N.W.2d at 181.

[¶ 9] Similar to the facts in Tinsley, Eagleman argues the conduct constituting the crimes to which he pleaded guilty was committed in Canada and, therefore, the trial court was without subject matter jurisdiction. Following the law as stated in Tinsley, Eagleman’s guilty plea constituted an admission of the essential elements of the crime, including the place where the crime was committed. However, Eagle-man also asserts that the jurisdictional issue was not properly investigated or raised by his defense attorney and, therefore, he was denied effective assistance of counsel. He asserts that, if his trial counsel had raised the issue, the case would have been dismissed by the court for lack of jurisdiction.

[¶ 10] Eagleman’s argument in support of his post-conviction application more similarly parallels the facts in State v. Tennyson, 73 N.D. 262, 14 N.W.2d 168 (1944), wherein the defendant pleaded guilty to the “crime of stealing property without and bringing into the state.” The defendant, in Tennyson, after judgment of conviction was entered, moved to vacate and set aside the judgment on the ground that he had not had the benefit of counsel. This Court concluded that, under the statutory crime charged, there was no jurisdiction to try the charge for a larceny committed in another state or country unless the stolen property was brought into or through the county in which the prosecution was being maintained. The State argued that the defendant, by his guilty plea, waived the right to object to the trial in Mercer County on jurisdictional grounds, but this Court disagreed, concluding that where the defendant did not have the benefit of assistance of counsel the guilty plea should not have been accepted in view of the jurisdictional issue.

[¶ 11] Although Eagleman, unlike Tennyson, was represented by trial counsel, Eagleman claims the representation was ineffective because his counsel did not appropriately investigate or raise the subject matter jurisdiction issue. An applicant for post-conviction relief need not provide evidence or proof with the application but must set forth a concise statement for each ground of relief and specify the relief requested. Weaver, 2003 ND 47, ¶ 4, 658 N.W.2d 352. The initial burden is on the movant for summary disposition, in this case the State, to show there is no dispute as to either the material facts or the inferences to be drawn from undisputed facts, and that the movant is entitled to judgment as a matter of law. We conclude the State has failed to meet its burden. Eagleman has raised a facially valid claim of ineffective assistance of counsel, supported by affidavit, sufficient to raise a genuine issue of material fact. While the State asserts Eagleman’s claim is without merit, it has failed to substantiate its position by affidavits or other appropriate means.

[¶ 12] When the evidence raises a reasonable inference of ineffective representation which creates a genuine fact issue, an evidentiary hearing on the post-conviction claim of ineffective assistance of counsel is required. Whiteman, 2002 ND 77, ¶ 22, 643 N.W.2d 704. We conclude Eagleman is entitled to an evidentiary hearing on his ineffective assistance of counsel claim. We, therefore, reverse the trial court’s summary dismissal of the application and remand for further proceedings.

[¶ 13] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, CAROL RONNING KAPSNER, and DALE V. SANDSTROM, JJ, concur.


author: KAPSNER, Justice.

text:
    2004 ND 7
    Della Mae LEE, Appellee, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Appellant.
    No. 20030168.
    Supreme Court of North Dakota.
    Jan. 14, 2004.

      Justin D. Roness (argued), Thomas A. Dickson (on brief), and Timothy Q. Purdon (on brief), Dickson & Purdon, Bismarck, ND, for appellee.
    Reid A. Brady, Assistant Attorney General, Attorney General’s Office, Bismarck, ND, for appellant.
   KAPSNER, Justice.

[¶ 1] The North Dakota Department of Transportation appeals from a district court judgment reversing an administrative hearing officer’s decision to suspend Della Mae Lee’s driving privileges for 91 days. We affirm the district court judgment.

I.

[¶ 2] On December 31, 2002, at around 9:30 p.m., Jamestown police officer Aaron Berg, acting on a tip by a patron in a bowling alley, found Lee slumped over the steering wheel of her idling vehicle. The officer decided to perform a welfare check to determine if Lee needed assistance. The officer knocked on the window to wake Lee. When this failed, he opened the door and shouted at her. Lee awoke and the officer proceeded to ask Lee for identification. The officer also asked Lee several questions.

[¶ 3] The officer noticed a strong odor of alcohol coming from inside the vehicle and from Lee. He observed Lee appeared confused and had poor balance when she exited the vehicle upon Berg’s request. Berg administered field sobriety tests and a field screening test, all of which Lee failed.

[¶ 4] Lee was arrested by Jamestown police for being in actual physical control of a vehicle while under the influence of intoxicating liquor. At the police station, Lee submitted to an Intoxilyzer test, which showed a blood alcohol content of .12%.

[¶ 5] Officer Berg issued a Report and Notice to Lee, which indicated the Department would suspend her driving privileges unless she requested a hearing. Lee requested an administrative hearing. At the hearing on January 30, 2003, the arresting officer testified he administered the Intoxi-lyzer test and did so according to the method approved by the state toxicologist. A copy of the approved method for conducting an Intoxilyzer test was not admitted into evidence at the administrative hearing. Instead, a copy of the approved method for conducting a blood test was admitted, apparently by mistake. In his closing statement at the hearing, the attorney for Lee argued lack of foundation for the results of the Intoxilyzer test because no exhibit had been introduced on the approved method to conduct such a test. At the conclusion of the hearing, the administrative officer determined there were reasonable grounds for believing Lee had been in actual physical control of a vehicle while under the influence of intoxicating liquor and suspended Lee’s driving privileges for 91 days. The hearing officer’s decision commented:

Regardless of Exhibit 8 being for blood testing rather than Intoxilyzer testing, there is no basis for dismissal on the grounds the approved method has not been shown. The officer’s testimony established that he was aware of the approved method and followed the approved method. There is no evidence that the approved method was not used, and there is no evidence that there is any issue as to the approved method.

[¶ 6] Lee appealed the decision to the district court. The district court reversed the administrative hearing decision because there was a lack of evidence concerning the approved method to conduct a breath test with the Intoxilyzer used by the officer necessary to establish a foundation for the admission of the results. The Department filed this appeal.

II.

[¶ 7] The Administrative Agencies Practice Act governs this Court’s review of administrative decisions appealed from a district court judgment involving a license suspension. Sonsthagen v. Sprynczynatyk, 2003 ND 90, ¶ 7, 663 N.W.2d 161. On appeal, we look to the record before the administrative agency. Id. Section 39-20-05(2), N.D.C.C., prescribes the issues to be determined at an administrative hearing:

[T]he hearing ... may cover only the issues of whether the arresting officer had reasonable grounds to believe the person had been driving or was in actual physical control of a vehicle in violation of section 39-08-01 or equivalent ordinance ... whether the person was placed under arrest ... whether the person was tested in accordance with section 39-20-01 or 39-20-03 and, if applicable, section 39-20-02; and whether the test results show the person had an alcohol concentration of at least ten one-hundredths of one percent by weight.

At the administrative hearing requested by Lee, the hearing officer determined police had reasonable grounds to believe Lee was in actual physical control of her vehicle; that she was arrested; that police properly tested her blood alcohol concentration; and that she had a concentration over the legal limit.

[¶ 8] This Court exercises limited review in appeals involving a driver’s license suspension. Henderson v. Dir., N.D. Dep’t of Transp., 2002 ND 44, ¶ 6, 640 N.W.2d 714. This Court does not review the district court decision, but rather, reviews the agency’s decision. Id. (citing Morrell v. N.D. Dep’t of Transp., 1999 ND 140, ¶ 6, 598 N.W.2d 111). However, the district court’s analysis is entitled to respect if its reasoning is sound. Rist v. N.D. Dep’t. of Transp., 2003 ND 113, ¶ 6, 665 N.W.2d 45 (citing Obrigewitch v. Dir., N.D. Dep’t of Transp., 2002 ND 177, ¶ 7, 653 N.W.2d 73). This Court will affirm the agency’s decision unless:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

N.D.C.C. § 28-32-46.

[¶ 9] This Court gives deference to the agency’s findings and will not substitute its own judgment for that of the agency. Henderson, at ¶ 6. When an agency’s decision has been reversed by the district court, this Court reviews the agency decision. Id. The administrative hearing officer resolves the underlying factual disputes. Id.

We give great deference to the Department’s findings of fact, and we do not make independent findings or substitute our judgment for that of the Department; rather, we determine only whether a reasoning mind reasonably could have concluded the Department’s findings were supported by the weight of the evidence from the entire record.

Id. In reviewing a suspension, the Court determines only whether a reasoning mind could have concluded the Department’s findings were supported by the weight of the evidence from the entire record. Sonsthagen v. Sprynczynatyk, 2003 ND 90, ¶ 7, 663 N.W.2d 161.

[¶ 10] Lee argues the administrative hearing officer should not have received the Intoxilyzer test results when documentation of the approved method for administering an Intoxilyzer test was not properly submitted into evidence. The documentation entered into evidence was for the approved method of administering a blood test, rather than the approved method for an Intoxilyzer test. N.D.C.C. § 39-20-07 governs the interpretation of chemical tests in driving-under-the-influence cases. The applicable portion of the statute provides:

The results of the chemical analysis must be received in evidence when it is shown that the sample was properly obtained and the test was fairly administered, and if the test is shown to have been performed according to methods and with devices approved by the state toxicologist, and by an individual possessing a certificate of qualification to administer the test issued by the state toxicologist.

N.D.C.G. § 39-20-07(5). “The purpose of section 39-20-07 is to ease the requirements for the admissibility of chemical test results while ensuring that the test upon which the results are based is fairly administered.” Ringsaker v. Dir., N.D. Dep’t of Transp., 1999 ND 127, ¶ 7, 596 N.W.2d 328 (citing Kummer v. Backes, 486 N.W.2d 252, 255 (N.D.1992)).

[¶ 11] In order to avoid lengthy testimony by experts, the statutory scheme requires proper documentation of test administration. “Absent testimony by the state toxicologist, the foundational requirement necessary to show fair administration of a breathalyzer test and admissibility of the test results is a showing that the test was administered in accordance with the approved methods filed with the clerk of the district court.” Henderson v. Dir., N.D. Dep’t of Transp., 2002 ND 44, ¶ 16, 640 N.W.2d 714 (citing Ringsaker, at ¶ 8).

[¶ 12] This Court has previously held documentation requirements must be scrupulously met to ensure a uniform basis of testing and fair administration. Moser v. N.D. State Highway Comm’r, 369 N.W.2d 650, 654 (N.D.1985). “Without strict compliance with the approved method, the scientific accuracy of the test cannot be established without expert testimony.” Ringsaker, at ¶ 8.

[¶ 13] In this case, the documentation requirements were not scrupulously met, because the approved method of administering the Intoxilyzer test was not admitted. Id. The district court reversed the agency because the hearing officer introduced documentation for the wrong test at the hearing.

[¶ 14] We affirm the district courtis ruling that documentation procedures were not met in this case. In Henderson v. Dir., N.D. Dep’t of Transp., 2002 ND 44, ¶ 16, 640 N.W.2d 714, this Court reiterated the importance of adhering to documentation requirements in administrative proceedings:

Under N.D.C.C. § 39-20-07(5), the results of chemical analysis to determine blood alcohol content must be received in evidence if the test sample was properly obtained, and the test was fairly administered and shown to have been performed in accordance with methods and devices approved by the state toxicologist. “‘Absent testimony by the state toxicologist, the foundational requirement necessary to show fair administration of a breathalyzer test and admissibility of the test results is a showing that the test was administered in accordance with the approved methods filed with the clerk of the district court.’ ” Ringsaker v. Director, N.D. Dep’t of Transp., 1999 ND 127, ¶ 8, 596 N.W.2d 328, quoting Moser v. N.D. State Hwy. Comm’r, 369 N.W.2d 650, 653 (N.D.1985).

[¶ 15] The standards set forth by the code and by case law were not met when the hearing officer failed to establish the foundation for introduction of the test results with documentation showing the approved Intoxilyzer method.

[¶ 16] When the State fails to establish compliance with the toxicologist’s directions, which go to the scientific accuracy of the test, the State must prove fair administration through expert testimony. Schwind v. Dir., N.D. Dep’t of Transp., 462 N.W.2d 147, 152 (N.D.1990). Absent a showing of strict compliance with the approved method, expert testimony is necessary to demonstrate the scientific accuracy of the test. In the present case, the arresting officer was the only person to testify at the hearing, and he was not established as an expert.

[¶ 17] The hearing officer’s comment that “there is no evidence that the approved method was not used” suggests Lee had a burden to establish such evidence. Instead it is the burden of the Department to establish that the Intoxilyzer test was fairly administered. Ringsaker, at ¶ 11. If the Department wishes to rely on the eased requirements for admissibility under N.D.C.C. § 39-20-07, it must adhere to those requirements. It failed to do so. Because the foundation for admission of the Intoxilyzer test result was not laid, the decision of the hearing officer is not supported by the weight of the evidence.

[¶ 18] The judgment of the district court is affirmed.

[¶ 19] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, WILLIAM A. NEUMANN, and MARY MUEHLEN MARING, JJ., concur.


text:
    2004 ND 10
    STATE of North Dakota, Plaintiff and Appellee, v. Paul Genaro Maldonado MORALES, Defendant and Appellant.
    No. 20030107.
    Supreme Court of North Dakota.
    Jan. 14, 2004.

      Trent W. Mahler (argued) and Lori S. Mickelson (on brief), Assistant State’s Attorneys, Fargo, ND, for plaintiff and ap-pellee.
    Monty G. Mertz, Fargo, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Paul Gerano Maldonado Morales appeals from a judgment of conviction of felony criminal trespass and simple assault of a police officer. We affirm.

I.

[¶ 2] On the night of July 23, 2002, Morales was present at the apartment of Pixie Daugherty in Fargo, North Dakota, along with several other people. Initially, Morales was a guest of Daugherty. However, later in the evening, someone at the apartment called the police and asked them to remove Morales from the premises. Several Fargo police officers arrived at the scene and informed Morales he was no longer welcome and would have to vacate the premises. Police informed Morales if he returned to the apartment he would be trespassing and subject to arrest. At the trial, the officers who were present during the first encounter testified Morales appeared to understand the instruction and left the premises.

[¶ 3] Later on that evening, Morales returned to Daugherty’s residence and entered through a window in Daugherty’s bedroom while she slept. Upon discovering Morales had re-entered the premises, someone at the house called the Fargo police, asking for him to be removed. When officers arrived at the scene, Morales retreated into Daugherty’s bedroom and shut the door. The officers approached the door and informed Morales he was under arrest. At that time, officers heard the sounds of personal property being destroyed in the bedroom. Officers further testified that when one of the officers opened the door, Morales threw several objects at him. Morales threw a portable fan, which crashed against the wall. One of the officers testified he was struck on the back of his neck with a mug thrown by Morales. After the officer was struck with the mug, the officer retreated into the living room. Another officer attempted to enter the bedroom, and Morales threw a telephone and a hammer at that officer.

[¶ 4] Additional officers arrived at the scene, and they were eventually able to subdue Morales with pepper spray. Morales resisted arrest, but was secured and removed from the apartment.

[¶ 5] On July 25, 2002, Morales was charged with simple assault of a police officer, criminal trespass, preventing arrest, criminal mischief, and two counts of simple assault. At a jury trial on March 25, 2003, Morales was found guilty of simple assault of a police officer, criminal trespass, and preventing arrest. Morales appealed.

II.

[¶ 6] Morales was convicted of a class C felony criminal trespass. Morales argues the district court erred when it failed to separately instruct the jury on the issue of whether Morales was licensed or privileged to be on the property. Morales argues he was licensed or privileged to be on the property because his name was on a lease and he was never lawfully evicted from the premises by the landlord in a legal action. At trial, Morales requested an instruction on license or privilege, but the district court refused.

[¶ 7] The applicable statute provides:

1. A person is guilty of a class C felony if, knowing that he is not licensed or privileged to do so, he enters or remains in a dwelling or in highly secured premises.
2. A person is guilty of a class A misdemeanor if, knowing that he is not licensed or privileged to do so, he:
a. Enters or remains in any building, occupied structure, or storage structure, or separately secured or occupied portion thereof; or
b. Enters or remains in any place so enclosed as manifestly to exclude intruders.
3. A person is guilty of a class B misdemeanor if, knowing that that person is not licensed or privileged to do so, that person enters or remains in any place as to which notice against trespass is given by actual communication to the actor by the person in charge of the premises or other authorized person or by posting in a manner reasonably likely to come to the attention of intruders. The name of the person posting the premises must appear on each sign in legible characters. A person who violates this subsection is guilty of a class A misdemeanor for the second or subsequent offense within a two-year period.
4. A person is guilty of a class B misdemeanor if that person remains upon the property of another after being requested to leave the property by a duly authorized person. A person who violates this subsection is guilty of a class A misdemeanor for the second or subsequent offense within a two-year period.

N.D.C.C. § 12.1-22-03.

[¶ 8] “A defendant is entitled to a jury instruction on a legal position if there is some evidence to support it.” State v. Larson, 554 N.W.2d 655, 656 (N.D.1996) (citing State v. Thiel, 411 N.W.2d 66, 67 (N.D.1987)). The district court is not required to instruct the jury in specific language requested by the defendant, even if it is a correct statement of the law. State v. Farzaneh, 468 N.W.2d 638, 643 (N.D.1991) (citing State v. Erban, 429 N.W.2d 408, 413 (N.D.1988); State v. White, 390 N.W.2d 43, 45 (N.D.1986); State v. Dilger, 338 N.W.2d 87 (N.D.1983)).

[¶ 9] The instruction given to the jury on the trespass charge read as follows:

The State’s burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
(1) On or about, the 24th day of July, 2002, in Cass County, North Dakota, the Defendant, Paul Genaro Maldonado Morales, willfully entered or remained in a certain dwelling; namely, the dwelling of Pixie L. Daugherty; and
(2) The Defendant did so, knowing that the Defendant was not licensed or privileged to do so.

[¶ 10] Section 12.1-22-03(1), N.D.C.C., provides a person is guilty of criminal trespass if, knowing he is not licensed or privileged to do so, he enters or remains in a dwelling. “Privilege is the freedom or authority to act and to use property.” State v. Ronne, 458 N.W.2d 294, 297 (N.D.1990) (citing State v. Mehralian, 301 N.W.2d 409 (N.D.1981); State v. Haugen, 458 N.W.2d 288 (N.D.1990)). In Ronne, this Court stated “privilege” in a burglary statute means a person is privileged if “he may naturally be expected to be on premises often and in the natural course of his duties or habits.” Id. (citing State v. Kreth, 150 Vt. 406, 553 A.2d 554 (1988)). Morales argues he was licensed or privileged to enter the premises and remain there because his name was on a lease signed by himself and Daugherty, and he was never formally evicted. We find this argument unpersuasive.

[¶ 11] At trial two documents described as “leases” were offered as exhibits. The lease offered by Morales was dated April 26, 2001. The lease offered by Morales had signatures from himself and Daugherty; however, the lease was not signed by the landlord. The lease offered by the State was dated May 1, 2001. This document was signed by Daugherty and Daugherty’s landlord. Morales argued the May 1, 2001, contract between Daugherty and the landlord was ineffective because it required a novation from all parties, and therefore, the April 26, 2001, lease was the only effective lease, giving Morales a license or privilege to be on the property.

[¶ 12] North Dakota law defines a no-vation as “the substitution of a new obligation for an existing one.” N.D.C.C. § 9-13-08. Further, the code provides that a “[n]ovation is made by contract and is subject to all the rules concerning contracts in general.” N.D.C.C. § 9-13-09. Under general contract law, the requirements for a novation are: a previous valid obligation, an agreement of all the parties to a new contract, and the extinguishment of the old obligation for a new, valid obligation. Black’s Law Dictionary 1064 (6th ed.1991). The lease offered by Morales has signatures from Daugherty and Morales; however, it was never signed by the landlord. The document produced by Morales is not a binding rental contract and is therefore not capable of being the subject of a novation.

[¶ 13] There is other evidence demonstrating Morales knew he did not belong on the property. Daugherty testified she was asleep at the time Morales entered the apartment through a bedroom window and she never gave him any indication to think he was allowed to enter the premises after the police had been called earlier in the evening. At trial, Fargo police officers testified Morales did not claim he thought he was licensed or privileged to enter the home on either the first or second occasion they were called to the Daugherty residence to remove Morales. Daugherty testified Morales had not lived in the apartment for at least one year. Finally, when Morales entered the premises the second time, he entered surreptitiously through a window in Daugherty’s bedroom. These actions indicate Morales knew he was not licensed or privileged to enter the property and remain there.

[¶ 14] Morales was not entitled to a jury instruction on the issue of license or privilege to enter the premises, because he had no evidence proving he was licensed or otherwise privileged to remain on the premises.

III.

[¶ 15] Morales argues the district court erred in refusing to instruct the jury on the lesser offense of criminal trespass under N.D.C.C. § 12.1-22-03(4), a misdemeanor offense, which does not require the element of knowing he was not licensed or privileged to be there.

[¶ 16] There is no constitutional right to a jury instruction on a lesser included offense. State v. Piper, 261 N.W.2d 650, 653 (N.D.1977) (citing Keeble v. United States, 412 U.S. 205, 213, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973)). “A determination that an offense is a lesser included offense does not necessarily require that a lesser included offense instruction be given upon request.” State v. Tweed, 491 N.W.2d 412, 414 (N.D.1992) (quoting State v. Langan, 410 N.W.2d 149, 152 (N.D.1987)).

[¶ 17] We recognize the importance of giving instructions on lesser included offenses when the particular facts of the case warrant it. Tweed, at 416. “Instructing the jury on a lesser included offense, when the evidence so warrants, provides the defendant with a ‘procedural safeguard.’ ” Id. “The defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.” Tweed, at 414 (quoting State v. Houser, 261 N.W.2d 382, 384 (N.D.1977)).

[¶ 18] This Court is reluctant to require district courts to instruct on lesser included offenses of the crimes charged regardless of the evidence presented at trial, because it would lead to a less reliable jury verdict. Tweed, at 415. Instructions on lesser included offenses may lead the jury to compromise, which is not compatible with the function of a jury in a criminal case. Id. (quoting State v. Piper, 261 N.W.2d 650, 654 (N.D.1977)).

[¶ 19] This Court applies a two-part inquiry to determine whether a defendant is entitled to a jury instruction on a lesser included offense. Piper, at 654. First, the offense must be a lesser included offense of the offense charged. Id. Second, there must be evidence which creates a reasonable doubt as to the greater offense and supports a conviction of the lesser included offense. Id.

[¶ 20] The State does not contest criminal trespass under N.D.C.C. § 12.1-22-03(4) is a lesser included offense. Therefore we address only the second prong of the two-part inquiry. Morales fails to meet the second prong of the inquiry.

[¶ 21] Morales argues his production of a lease at trial, unsigned by the landlord, negates the “knowing” element of the greater offense, thus creating a reasonable doubt. Although Morales argues the purported lease negates the “knowing” element of the charge under N.D.C.C. § 12.1-22-03(1), the lease, if valid, would be a defense to a charge of trespass. If Morales’s evidence is to be believed, it would not require an instruction as to a lesser included offense, because the evidence offered by Morales would support a defense to the charge of criminal trespass, both the felony and the misdemeanor. State v. Skjonsby, 319 N.W.2d 764, 778 (N.D.1982). Assuming Morales’s evidence creates a reasonable doubt as to the greater offense, it would also create a reasonable doubt as to the lesser offense. Id

[¶ 22] If Morales’s lease were accepted as valid, there would be no trespass under N.D.C.C. § 12.1-22-03(4). The premises would not have been the “property of another” from which he could be excluded under subsection 4. Evidence which establishes a defense to both the greater and the lesser offense does not support a jury instruction on a lesser included offense. Piper, at 654-55.

[¶ 23] The evidence offered at trial does not support a charge under the misdemeanor offense. In contrast with the first three subsections of N.D.C.C. § 12.1-22-03, which address both entry upon or remaining in an unauthorized place, subsection 4 addresses a person who “remains upon the property of another after being requested to leave the property by a duly authorized person.” N.D.C.C. § 12.1-22-03(4). Morales left the property after the first encounter with the police when he was warned that he would be trespassing if he returned. It is his re-entry of the property that is the essence of his criminal trespass.

[¶ 24] The right to an instruction on a lesser included offense is dependent upon the evidence heard by the jury. The evidence heard by the jury does not provide reasonable doubt that Morales knew he had no privilege to be on the premises. The evidence does not support a charge he remained on the premises after being requested to leave. The district court did not err in refusing to give an instruction on trespass under N.D.C.C. § 12.1-22-03(4).

IV.

[¶ 25] Morales argues there is insufficient evidence to support a jury verdict that he committed assault on a police officer, because the State did not present evidence that the officer sustained bodily injury. Morales further argues the police failed to collect the mug which struck the officer for evidence purposes. The State contends there was sufficient evidence to support the conviction. We agree the evidence supports the verdict. The applicable statute provides:

1. A person is guilty of an offense if that person:
a. Willfully causes bodily injury to another human being; or
b. Negligently causes bodily injury to another human being by means of a firearm, destructive device, or other weapon, the use of which against a human being is likely to cause death or serious bodily injury.
2. The offense is:
a. A class C felony when the victim is a peace officer or correctional institution employee acting in an official capacity, which the actor knows to be a fact, a person engaged in a judicial proceeding, or a member of a municipal or volunteer fire department or emergency medical services personnel unit or emergency department worker in the performance of the member’s duties.
b. A class B misdemeanor for the first offense when the victim is an actor’s family or household member as defined in subsection 4 of section 14-07.1-01 and a class A misdemeanor for a second or subsequent offense when the victim is an actor’s family or household member as defined in subsection 4 of section 14-07.1-01 and the actor has a prior conviction for simple assault involving the commission of domestic violence as defined in subsection 2 of section 14-07.1-01. For purposes of this subdivision, a prior conviction includes a conviction of simple assault in which a finding of domestic violence was made under a law or ordinance of another state which is equivalent to this subdivision.
c. A class B misdemeanor except as provided in subdivision a or b.

N.D.C.C. § 12.1-17-01.

[¶ 26] The essential elements of simple assault on a police officer include willfully causing bodily injury. Our statutes define “willfully” as conduct engaged in “intentionally, knowingly, or recklessly.” N.D.C.C. § 12.1-02-02(l)(e). The North Dakota Criminal Code states that conduct is “intentional” if it is the individual’s purpose to engage in the conduct. N.D.C.C. § 12.1-02-02(l)(a). An individual “knowingly” engages in conduct when “he knows or has a firm belief, unaccompanied by substantial doubt, that he is doing so, whether or not it is his purpose to do so.” N.D.C.C. § 12.1-02-02(l)(b). A person engages in conduct “recklessly” if “he engages in the conduct in conscious and clearly unjustifiable disregard of a substantial likelihood of the existence of the relevant facts or risks, such disregard involving a gross deviation from acceptable standards of conduct.” N.D.C.C. § 12.1-02 — 02(l)(c). The criminal code further provides “bodily injury” is the “impairment of any physical condition, including physical pain.” N.D.C.C. § 12.1-01-04(4).

[¶ 27] When the sufficiency of the evidence is challenged, this Court examines the evidence in the light most favorable to the verdict to see whether a rational trier of fact could have found that the essential elements of the crime were established beyond a reasonable doubt. State v. Steiger, 2002 ND 79, ¶ 4, 644 N.W.2d 187 (citing State v. Morris, 331 N.W.2d 48, 53 (N.D.1983)). On appeal, this Court looks only to the “evidence and its reasonable inferences most favorable to the verdict to see whether substantial evidence exists to warrant conviction.” Steiger, at ¶ 4 (quoting State v. Treis, 1999 ND 136, ¶ 9, 597 N.W.2d 664). “Reversal is warranted only if, after viewing the evidence and all reasonable evidentiary inferences in the light most favorable to the verdict, no rational factfinder could have found the defendant guilty beyond a reasonable doubt.” City of Grand Forks v. Thong, 2002 ND 48, ¶ 18, 640 N.W.2d 721 (citing City of Jamestown v. Neumiller, 2000 ND 11, ¶ 5, 604 N.W.2d 441).

[¶ 28] In order to prove Morales committed simple assault upon a peace officer, the State must demonstrate Morales willfully engaged in activity resulting in physical pain to one or more of the officers present at the scene. Testimony at trial established one of the officers sustained bodily injury and suffered physical pain when an object thrown by Morales struck him in the back of the neck. The officer sustaining the injury testified he saw Morales throw the object at him and he turned his head to avoid being struck, but was hit in the back of the neck. The officer testified he suffered bodily injury and pain as a result of the object thrown by Morales striking him in the back of the neck. Another officer testified he saw the object strike the officer in the back of the neck and testified the officer exhibited signs that he suffered physical pain after he was struck.

[¶ 29] Conduct exhibited by Morales at the scene presents evidence that he at least knowingly threw an object at one of the officers with the intent that the object would come in contact with the officer and cause him bodily injury. Viewing this testimony in a light most favorable to the verdict supports the conviction.

[¶ 30] We affirm the conviction.

[¶ 31] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, WILLIAM A. NEUMANN, and MARY MUEHLEN MARING, JJ., concur.


author: VANDE WALLE, Chief Justice.

text:
    2004 ND 12
    Tracy Paul GREEN, Plaintiff and Appellant v. MID DAKOTA CLINIC, Defendant and Appellee.
    No. 20030264.
    Supreme Court of North Dakota.
    Jan. 14, 2004.

      Kent M. Morrow, Severin, Ringsak & Morrow, Bismarck, N.D., for plaintiff and appellant.
    Michael C. Waller, Fleck, Mather & Strutz, Bismarck, N.D., for defendant and appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Tracy Paul Green appealed from a summary judgment dismissing his action for damages against Mid Dakota Clinic (“Clinic”), alleging it negligently allowed ice to accumulate on its sidewalk, resulting in Green sustaining injuries when he slipped and fell while attempting to transfer from a wheelchair into his car. We hold the trial court incorrectly applied the law of assumption of risk in dismissing the claim and we, therefore, reverse and remand for further proceedings.

I

[¶ 2] On March 12,1999, a friend drove Green to the Clinic for treatment of severe back pain. Green was taken by wheelchair to the basement of the Clinic for x-rays, and when the procedure was completed Green’s Mend took him by wheelchair to the outdoor sidewalk area of the Clinic under an overhanging canopy. The friend left Green sitting in the wheelchair unattended while she went into the Clinic to find someone to assist her in lifting Green into the car. While she was gone, Green attempted to transfer himself from the wheelchair to the car. While doing so, he slipped, landed on the ground, and sustained injuries.

[¶ 3] Green sued the Clinic, alleging it negligently maintained its sidewalk area by leaving sand-covered ice on it, which Green failed to notice when he was attempting to get into the car until he slipped on it and fell to the ground. The Clinic filed a motion for summary judgment, asserting Green’s injuries were the result of his own negligence. For purposes of this motion, the Clinic conceded Green’s allegation that there was sand-covered ice on the sidewalk. However, it asserts it was not negligent in maintaining the sidewalk, because it took reasonable steps to keep the area free from snow and ice and it heated the driveway area and sidewalk under the canopy throughout the winter months so that snow and ice would not accumulate there.

[¶ 4] In granting the Clinic’s motion to dismiss the claim, the trial court stated:

The evidence before the Court establishes that the area of the incident was under a covered canopy, which is equipped with underground heating to prevent snow and ice accumulation.
Granting to [Green] every reasonable inference that a small accumulation of “black ice” did exist, [Green] was knowledgeable of the area, and more specifically, [his] need for physical assistance to transfer from a wheelchair to a motor vehicle. [Green’s] impatience in refusing to wait for the [Clinic’s] staff to facilitate that transfer, was an assumption by [Green] of the risk of fall in attempting the same.
IT IS THEREFOR THE DETERMINATION OF THIS COURT that reasonable people could come to but one conclusion, that [Green] knowingly assumed the risk of fall when attempting to transfer from a wheelchair to a motor vehicle without assistance.
IT IS THEREFOR THE ORDER OF THE COURT that the [Clinic’s] motion for summary judgment of dismissal with prejudice of the foregoing litigation is herewith granted.

On appeal from the summary judgment dismissing his claim, Green asserts the trial court committed reversible error in concluding that reasonable people could come to but one conclusion that he knowingly assumed the risk of falling when he attempted to transfer himself from the wheelchair to the car.

II

[¶ 5] We review this appeal in the posture of summary judgment, which is a procedural device under N.D.R.Civ.P. 56 for prompt and expeditious disposition of a controversy without a trial if either party is entitled to judgment as a matter of law, and if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving disputed facts would not alter the result. Dahlberg v. Lutheran Soc. Servs. of N.D., 2001 ND 73, ¶ 11, 625 N.W.2d 241. On appeal, we review the evidence in the light most favorable to the party opposing the motion, and we give that party the benefit of all favorable inferences which reasonably can be drawn from the evidence. Id. The party moving for summary judgment bears the burden of establishing there is no genuine issue of material fact and that, under applicable principles of substantive law, he is entitled to judgment as a matter of law. Skjervem v. Minot State Univ., 2003 ND 52, ¶ 4, 658 N.W.2d 750. Whether the trial court properly granted summary judgment is a question of law which we review de novo on the entire record. Id. at ¶ 7.

[¶ 6] Negligence and proximate cause are fact questions unless the evidence is such that reasonable minds can draw but one conclusion. Larson v. Kubisiak, 1997 ND 22, ¶ 7, 558 N.W.2d 852. Negligence cases are now governed by the doctrine of comparative fault. N.D.C.C. ch. 32-03.2. Consequently, assumption of risk is no longer an affirmative defense in North Dakota, but, rather, is one part of the analysis in determining comparative fault. Iglehart v. Iglehart, 2003 ND 154, ¶ 17, 670 N.W.2d 343.

[¶ 7] From the language used by the court in its decision, it appears the court may have misapplied the doctrine of assumption of risk in this case by making it an affirmative defense to the allegations of negligence, rather than one factor in determining comparative fault. In its decision, the court decided that a reasonable person could come to but one conclusion that Green knowingly assumed the risk of falling. As a consequence, the court summarily dismissed Green’s claim. However, the court did not expressly hold that, as a matter of law, a reasonable person must conclude Green’s assumption of risk would make him more than fifty percent at fault and thereby preclude him from obtaining damages for the Clinic’s allegedly negligent conduct. See N.D.C.C. § 32-03.2-02. Without such a definitive holding by the court, we conclude the court misapplied the law by treating assumption of risk as an all or nothing affirmative defense.

[¶ 8] Green claims the Clinic was negligent in maintaining its sidewalk by allowing ice to accumulate on it. Although the Clinic alleged it maintains a heated sidewalk to eliminate accumulations of snow and ice, it conceded, for purposes of this motion, ice had accumulated on the sidewalk. The mere fact there is snow and ice upon a person’s sidewalk, does not establish negligence by that party. See Skjervem v. Minot State Univ., 2003 ND 52, ¶ 10, 658 N.W.2d 750. Landowners owe a general duty to lawful entrants to maintain their property in a reasonably safe condition under the circumstances, considering the likelihood of an injury to another, the seriousness of the injury, and the burden of avoiding the risk. Sternberger v. City of Williston, 556 N.W.2d 288, 290 (N.D.1996). However, a landowner who constructs a canopy over a sidewalk upon his property owes a duty to the public to maintain it to provide a sidewalk free from artificial accumulations of water and ice. See Strandness v. Montgomery Ward, 199 N.W.2d 690, 692 (N.D.1972).

[¶ 9] In its complaint, Green asserts the Clinic was negligent “in failing to adequately light the area and to prevent the accumulation of ice or to protect patrons from slipping.” While the allegation is generally broad and nonspecific we believe that, under the circumstances, it is sufficient to survive the Clinic’s motion for summary judgment. The Clinic conceded for purposes of the summary judgment motion that ice was allowed to accumulate on the sidewalk, and the court did not hold, as a matter of law, that a reasonable person could reach but one conclusion that the Clinic was not negligent in maintaining the sidewalk or that Green’s assumption of risk in attempting to transfer from the wheelchair to the car would exceed the Clinic’s negligent conduct, if any.

[¶ 10] We hold the trial court erred in applying the doctrine of assumption of risk in deciding the summary judgment motion and we, therefore, reverse the summary judgment of dismissal and remand for further proceedings.

[¶ 11] DALE V. SANDSTROM, WILLIAM A. NEUMANN, and CAROL RONNING KAPSNER, JJ., concur.

[¶ 12] The Honorable MARY MUEHLEN MARING, disqualified, subsequent to oral argument.