N.D. Supreme Court Hears Arguments in 2000 Flood Damage Dispute

April 27, 2006

The North Dakota state Supreme Court is considering whether the city of Fargo should pay North Dakota State University $3 million for damage to campus buildings and equipment caused by heavy rain in 2000.

The city is appealing East Central District Judge Douglas Herman’s decision last year in favor of the university. The justices heard arguments this week, and will rule later.

Herman rejected the city’s arguments that NDSU’s losses to its heating plant, a steam tunnel and computer center were due to its own negligence and failure to control the damage. He also rejected the city’s “act of God” defense. NDSU has asked the court to overturn part of Herman’s ruling in which he denied NDSU interest on the damage.

Bismarck attorney Jim Hill, representing Fargo, told justices that a clause in a 1989 lease between NDSU and the city for the campus land, upon which the city’s Fargodome was eventually built, should not be used to make the city liable for damage to NDSU property.

The lease included an indemnification clause requiring Fargo to buy insurance that included protection for NDSU.

The June 2000 rainstorm swamped Fargo, flooding streets and structures, including many buildings on NDSU’s campus and the Fargodome. Water inside the Fargodome moved through a steam tunnel and into NDSU’s heat plant and computer center, ruining equipment at floor level.

Hill called the case “a perfect legal storm,” referring to its path through the court system.

Retiring District Judge Norman Backes settled much of the case in pretrial rulings, finding the city liable for NDSU’s damage. He retired, leaving only the question of damages for a court trial, over which Herman presided. He ruled after his appointment to the bench.

The NDSU property damaged by the rainstorm did not exist in 1989 and was not foreseen, Hill said. Fargo attorney Sarah Gullickson McGrane argued that Herman’s decision was not improper.

District Judge Doug Mattson of Minot sat in on the arguments because Justice Mary Maring removed herself from the case

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