# Title 32 — Judicial Remedies

## Chapter 32-03.2 — Fault, Damages, and Payments

### § 32-03.2-01. Definition.

As used in this chapter:
1. "Fault" includes acts or omissions that are in any measure negligent or reckless toward
the person or property of the actor or others, or that subject a person to tort liability or
dram shop liability. The term also includes strict liability for product defect, breach of
warranty, negligence or assumption of risk, misuse of a product for which the
defendant otherwise would be liable, and failure to exercise reasonable care to avoid
an injury or to mitigate damages. Legal requirements of causal relation apply both to
fault as the basis for liability and to contributory fault.
2. "Malice" means:
a. A direct intention to injure another; or
b. A reckless disregard of the rights of another and any consequences.
### § 32-03.2-02. Modified comparative fault.

Contributory fault does not bar recovery in an action by any person to recover damages for
death or injury to person or property unless the fault was as great as the combined fault of all
other persons who contribute to the injury, but any damages allowed must be diminished in
proportion to the amount of contributing fault attributable to the person recovering. The court
may, and when requested by any party, shall direct the jury to find separate special verdicts
determining the amount of damages and the percentage of fault attributable to each person,
whether or not a party, who contributed to the injury. The court shall then reduce the amount of
such damages in proportion to the amount of fault attributable to the person recovering. When
two or more parties are found to have contributed to the injury, the liability of each party is
several only, and is not joint, and each party is liable only for the amount of damages
attributable to the percentage of fault of that party, except that any persons who act in concert in
committing a tortious act or aid or encourage the act, or ratifies or adopts the act for their
benefit, are jointly liable for all damages attributable to their combined percentage of fault.
Under this section, fault includes negligence, malpractice, absolute liability, dram shop liability,
failure to warn, reckless or willful conduct, assumption of risk, misuse of product, failure to avoid
injury, and product liability, including product liability involving negligence or strict liability or
breach of warranty for product defect.
### § 32-03.2-02.1. Automobile accident damage liability.

Notwithstanding section 32-03.2-02, in an action by any person to recover direct and
indirect damages for injury to property, the damages may not be diminished in proportion to the
amount of contributing fault attributable to the person recovering, or otherwise, if:
1. The person seeking damages is seeking property damages resulting from a motor
vehicle accident in which two persons are at fault;
2. The person seeking damages is seeking to recover direct physical property damages
of not more than five thousand dollars and indirect physical property damages not to
exceed one thousand dollars; and
3. The percentage of fault of the person against whom recovery is sought is over fifty
percent.
This section applies regardless as to whether the person seeking direct and indirect damages
for injury to property also seeks damages for personal injury, however, damages for personal
injury are not available under this section.
### § 32-03.2-03. Pure comparative fault - Product liability actions.

Repealed by S.L. 1993, ch. 324, § 5.

### § 32-03.2-04. Economic and noneconomic damages for wrongful death or injury to

person.
In any civil action for damages for wrongful death or injury to a person and whether arising
out of breach of contract or tort, damages may be awarded by the trier of fact as follows:
1. Compensation for economic damages, which are damages arising from medical
expenses and medical care, rehabilitation services, custodial care, loss of earnings
and earning capacity, loss of income or support, burial costs, cost of substitute
domestic services, loss of employment or business or employment opportunities and
other monetary losses.
2. Compensation for noneconomic damages, which are damages arising from pain,
suffering, inconvenience, physical impairment, disfigurement, mental anguish,
emotional distress, fear of injury, loss or illness, loss of society and companionship,
loss of consortium, injury to reputation, humiliation, and other nonpecuniary damage.
### § 32-03.2-05. Separate finding on damages.

In awarding compensation for damages to any party, the trier of fact shall make separate
findings which must specify:
1. The amount of compensation for past economic damages.
2. The amount of compensation for future economic damages.
3. The amount of compensation for noneconomic damages.
### § 32-03.2-06. Reduction for collateral source payments.

After an award of economic damages, the party responsible for the payment thereof is
entitled to and may apply to the court for a reduction of the economic damages to the extent that
the economic losses presented to the trier of fact are covered by payment from a collateral
source. A "collateral source" payment is any sum from any other source paid or to be paid to
cover an economic loss which need not be repaid by the party recovering economic damages,
but does not include life insurance, other death or retirement benefits, or any insurance or
benefit purchased by the party recovering economic damages.
### § 32-03.2-07. Pleading of damages.

Any pleading for damages for death or injury to a person may pray for economic and
noneconomic damages separately. Any prayer for noneconomic damages of less than fifty
thousand dollars or for economic damages may be for a specific dollar amount. Any prayer for
noneconomic damages for fifty thousand dollars or more must be stated generally as "a
reasonable sum but not less than fifty thousand dollars".
### § 32-03.2-08. Review of reasonableness of economic damages.

In addition to any other remedy provided by law and after a jury award of economic
damages, any party responsible for the payment of any part thereof may request a review of the
reasonableness of the award by the court as follows:
1. Awards in excess of two hundred fifty thousand dollars before reduction for
contributory fault and collateral source payments are subject to review for
reasonableness under this chapter.
2. The burden is on the moving party to establish that the amount of economic damage
awarded was not reasonable in that it does not bear a reasonable relation to the
economic damage incurred and to be incurred as proven by the party recovering the
award.
3. If the court finds that the jury award of economic damages is unreasonable, the court
shall reduce the award to reasonable economic damages.
### § 32-03.2-09. Periodic payments for continuing custodial care.

If an injured party claims future economic damages for continuing institutional or custodial
care that will be required for a period of more than two years, at the discretion of the court any
party may request the trier of fact to make a special finding of the total amount awarded for this

care, separate from other future economic damages, and if a separate award is made, any party
may make periodic payments for this care in an amount approved by the court, provided
payment of the total award for this care is adequately secured. The adequacy of the periodic
payments within the limit of the total award will be subject to review by the court from time to
time, and upon the death of the injured person the obligation to provide for further continuing
care shall terminate.
### § 32-03.2-10. Nondisclosure of reduction for collateral source payments.

The jury may not be informed of the potential for the reduction of economic damages
because of payments from collateral sources.
### § 32-03.2-11. When court or jury may give exemplary damages.

1. In any action for the breach of an obligation not arising from contract, when the
defendant has been guilty by clear and convincing evidence of oppression, fraud, or
malice, the court or jury, in addition to the actual damages, may give damages for the
sake of example and by way of punishing the defendant. Upon commencement of the
action, the complaint may not seek exemplary damages. After filing the suit, a party
may make a motion to amend the pleadings to claim exemplary damages. The motion
must allege an applicable legal basis for awarding exemplary damages and must be
accompanied by one or more affidavits or deposition testimony showing the factual
basis for the claim. The party opposing the motion may respond with affidavit or
deposition testimony. If the court finds, after considering all submitted evidence, that
there is sufficient evidence to support a finding by the trier of fact that a preponderance
of the evidence proves oppression, fraud, or malice, the court shall grant the moving
party permission to amend the pleadings to claim exemplary damages. For purposes
of tolling the statute of limitations, pleadings amended under this section relate back to
the time the action was commenced.
2. If either party so elects, the trier of fact shall first determine whether compensatory
damages are to be awarded before addressing any issues related to exemplary
damages. Evidence relevant only to the claim for exemplary damages is not
admissible in the proceeding on liability for compensatory damages. If an award of
compensatory damages has been made, the trier of fact shall determine whether
exemplary damages are to be awarded.
3. Evidence of a defendant's financial condition or net worth is not admissible in the
proceeding on exemplary damages.
4. If the trier of fact determines that exemplary damages are to be awarded, the amount
of exemplary damages may not exceed two times the amount of compensatory
damages or two hundred fifty thousand dollars, whichever is greater; provided,
however, that no award of exemplary damages may be made if the claimant is not
entitled to compensatory damages. In a jury trial, the jury may not be informed of the
limit on damages contained in this subsection. Any jury award in excess of this limit
must be reduced by the court.
5. In order for a party to recover exemplary damages, the finder of fact shall find by clear
and convincing evidence that the amount of exemplary damages awarded is
consistent with the following principles and factors:
a. Whether there is a reasonable relationship between the exemplary damage
award claimed and the harm likely to result from the defendant's conduct as well
as the harm that actually has occurred;
b. The degree of reprehensibility of the defendant's conduct and the duration of that
conduct; and
c. Any of the following factors as to which evidence is presented:
(1) The defendant's awareness of and any concealment of the conduct;
(2) The profitability to the defendant of the wrongful conduct and the desirability
of removing that profit and of having the defendant also sustain a loss; and

(3) Criminal sanctions imposed on the defendant for the same conduct that is
the basis for the exemplary damage claim, these to be taken into account if
offered in mitigation of the exemplary damage award.
6. Exemplary damages may not be awarded against a manufacturer or seller if the
product's manufacture, design, formulation, inspection, testing, packaging, labeling,
and warning complied with:
a. Federal statutes existing at the time the product was produced;
b. Administrative regulations existing at the time the product was produced that
were adopted by an agency of the federal government which had responsibility to
regulate the safety of the product or to establish safety standards for the product
pursuant to a federal statute; or
c. Premarket approval or certification by an agency of the federal government.
7. The defense in subsection 6 does not apply if the plaintiff proves by clear and
convincing evidence that the product manufacturer or product seller:
a. Knowingly and in violation of applicable agency regulations withheld or
misrepresented information required to be submitted to the agency, which
information was material and relevant to the harm in question; or
b. Made an illegal payment to an official of the federal agency for the purpose of
securing approval of the product.
8. Exemplary damages may be awarded against a principal because of an act by an
agent only if at least one of the following is proved by clear and convincing evidence to
be true:
a. The principal or a managerial agent authorized the doing and manner of the act;
b. The agent was unfit and the principal or a managerial agent was reckless in
employing or retaining the agent;
c. The agent was employed in a managerial capacity and was acting in the scope of
employment; or
d. The principal or managerial agent ratified or approved the doing and manner of
the act.
9. In a civil action involving a motor vehicle accident resulting in bodily injury, it is
sufficient for the trier of fact to consider an award of exemplary damages against the
driver under the motion procedures provided in subsection 1 if clear and convincing
evidence indicates that the accident was caused by a driver who was operating or in
physical control of a motor vehicle:
a. With an alcohol concentration of at least eight one-hundredths of one percent by
weight;
b. Under the influence of a controlled substance unless a drug that predominantly
caused impairment was used only as directed or cautioned by a practitioner who
legally prescribed or dispensed the drug to the driver;
c. Under the influence of alcohol and refused to take a test required under chapter
39-20; or
d. Under the influence of a volatile chemical as listed in section 19-03.1-22.1.
At the trial in an action in which the trier of fact will consider an award of exemplary
damages, evidence that the driver has been convicted of violating section 39-08-01 or
an equivalent statute or ordinance is admissible into evidence.
### § 32-03.2-12. Post-trial review.

Motions for periodic payments, reductions of awards for contributory fault and collateral
source payments, for review of the reasonableness of an award, and for setting the amount of
exemplary damages, must be made to the judge who presided over the trial of the action,
unless the judge is unable to act, in which case, the motion must be presented to a judge
designated by the presiding judge of the district in which the trial was held. The motion must be
made within ten days of the jury verdict, or order of the court, and if so made, judgment may not
be entered until the motion has been ruled on.
