traumatic elbow injury . Howe removed the claim to district court and later moved to dismiss under N . D . C . C . § 28-01-46 arguing Severance failed to produce an expert opinion within three months of filing his claim . Severance opposed the motion arguing his claim against Howe was for medical battery , which did not require an expert opinion .
The district court dismissed the case without prejudice because Severance did not provide a timely expert opinion as required by N . D . C . C . § 28-01-46 . The district court reasoned an expert opinion was required because there is no claim for any form of medical malpractice in North Dakota whereby a plaintiff would not need to disclose an expert for lack of consent in a medical procedure . While the case was dismissed without prejudice , the applicable statute of limitations prohibited the refiling of the case .
The Court reversed the district court on the basis North Dakota recognizes the independent intentional tort of medical battery and no expert opinion is required for a claim of medical battery . The Court held that while battery is not defined by statute in North Dakota , it is recognized in case law that a person is civilly liable for offensive-contact battery if certain elements are met .
The Court distinguished between a medical battery claim , which involves a total lack of consent for an act , and a negligent nondisclosure claim involving the absence of informed consent . A claim for medical battery operates to protect an individual ’ s right to avoid intentional bodily injury , whereas the tort of negligence serves to encourage the exercise of reasonable care .
The Court held that expert testimony is not required for a plaintiff to prove medical battery because a lay jury can determine whether a person provided no consent at all to a touching . Whereas , in the context of lack of informed consent cases , the plaintiff must prove a doctor failed to provide information the medical community would require a patient to know before giving consent . As Severance claims he had no desire for his elbow to be manipulated and that he provided no consent , the Court considered his claim to be one for battery .
Finally , the Court held that N . D . C . C . § 28-01-46 requiring an expert opinion only applies to claims of medical malpractice and has no application to a claim of medical battery . As such , Severance was not required to provide an expert opinion and his claim was improperly dismissed .
State v . Steele , 2023 ND 220 . Filed 11 / 24 / 23 .
Lee owned a house in New Town . Officers stopped Lee and informed her they believed a drug supplier was in her house . Lee consented to a search of her house . Before entering the house to search , the officers learned Steele had paid Lee $ 150 to stay in a back bedroom of the house . The officers entered and proceeded to the back bedroom where Lee told them they could find Steele . The door to the bedroom was closed . The officers entered the bedroom without a warrant and without Steele ’ s consent . Inside , the officers discovered Steele , drugs , and drug paraphernalia . The district court denied Steele ’ s motion to suppress . Steele conditionally pled guilty , reserving the right to appeal .
On appeal , Steele argued he had a reasonable expectation of privacy in the bedroom . When an individual reasonably expects privacy in an area , the government , under the Fourth Amendment , must obtain a search warrant unless the intrusion falls within a recognized exception to the warrant requirement . The Court found society recognizes as reasonable an expectation of privacy of a paying occupant in a closed bedroom , and therefore , Steele had a reasonable expectation of privacy in the bedroom he was renting . As a result , the police needed a warrant or some exception to the warrant requirement before entering his rented bedroom .
The state argued Lee had common authority to consent to the search of the entire house . A co-occupant ’ s consent to search extends only to the areas over which that co-occupant has common authority . The Court found Lee did not have joint access or control over the bedroom Steele rented and Steele had permission to occupy . The Court also found it was unreasonable for the officer to believe Lee could consent to the search of the bedroom Steele was paying for and occupying with Lee ’ s approval . As a result , the Supreme Court reversed the district court ’ s order and the criminal judgment and remanded to allow Steele to withdraw his guilty plea .
State v . Bearce , 2023 ND 231 . Filed 12 / 15 / 23 .
Bearce pled guilty to two counts of driving under the influence while causing the death of another . The district court sentenced Bearce to 12 years in prison on each count , to be served consecutively , for a total of 24 years . Bearce filed a motion to reduce his sentence . Without stating its reasons for the reduction in writing , the district court amended the sentence , so the two sentences ran concurrently , rather than consecutively . This had the effect of reducing Bearce ’ s sentence by 12 years . The state appealed .
On appeal , the state argued the district court erred when it reduced Bearce ’ s sentence without stating its reasons for the reduction , in writing , as mandated by Criminal Procedure Rule 35 . Rule 35 states , “ if the sentencing court grants a sentence reduction , it must state its reasons for the reduction in writing .” The Court found the use of the word “ must ” normally indicates a mandatory duty . As a result , the Court concluded the district court abused its discretion when it reduced Bearce ’ s sentence without providing its reasons for doing so in writing .
Bearce argued , even if the district court erred , N . D . C . C . § 29- 28-35 prohibits the Supreme Court from reversing the district court ’ s judgment or modifying it so as to increase the punishment . The Court agreed N . D . C . C . § 29-28-35 applied and they were precluded from reversing or modifying the judgment in a manner which would increase the punishment . As a result , the Supreme Court could only affirm and point out the error of the district
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