Wiseman: NMI govt immune from suit over defective ramp

Superior Court Associate Judge David A. Wiseman has dismissed the claims against the CNMI government in a lawsuit filed by a couple over the husband’s injuries when his motorized wheelchair suddenly tipped backwards on a defective ramp at their house.

Wiseman granted the government’s motion to dismiss James and Linda Bowie’s claims for negligence and violation of the Commonwealth Building Safety Code.

Wiseman, however, denied the Northern Marianas Housing Corp.’s motion to dismiss the couple’s claims for negligence and violation of the Commonwealth Building Safety Code against the agency.

The judge also denied NMHC’s motion for summary judgment as to the couple’s claims for negligence, breach of contract, and violation of the CNMI Building Safety Code.

A status conference was set last Thursday for the judge to set a trial date and other case management schedules.

According to court records, James Bowie is confined to a motorized wheelchair and requires a ramp for access to their house. In order to perform construction work on their home and improve the wheelchair ramp, the Bowies first applied for a grant with NMHC.

Having received grant approval from NMHC, the Bowies hired Apex Construction Inc. to perform the necessary construction work on their home.

Apex Construction, instead of reducing the slope of the ramp, increased it. The resulting ramp failed to comply with Americans with Disabilities Act Accessibility Guidelines.

As a result, James Bowie suffered injuries when his wheelchair suddenly tipped backwards while using the defective ramp. The Bowies complain that NMHC and CNMI approved the building plans despite knowing that the wheelchair access ramp was too steep.

NMHC, in particular, advised the Bowies that the defective wheelchair ramp could not and would not be corrected. NMHC held up additional funding for necessary repairs to the Bowie residence’s electrical wiring unless the Bowies approved the defective wheelchair access ramp.

The Bowies filed their first amended complaint in August 2013. They cited five causes of action claiming damages, court costs, attorney’s fees, and repairing the ramp to a safe and lawful condition.

The Bowies directed their negligence and violation of Building Safety Code claims against all defendants. They are suing Apex Construction for breach of contract and violation of the Consumer Protection Act. They are suing the Northern Marianas Housing Corp. for breach of contract. The CNMI and NMHC moved to dismiss claims against them.

NMHC also moved for summary judgment as to all plaintiffs’ claims.

Wiseman heard the motions on Oct. 10, 2013.

In his order, Wiseman ruled that the CNMI should be afforded statutory immunity under the Commonwealth Building Safety Code because of reasonable inferences from Bowies’ alleged facts in their complaint.

Wiseman said the Building Safety Division’s safety rules and regulations mandate that a person obtain the required permit prior to altering a building.

The judge noted that plaintiffs altered their building when Apex Construction altered their wheelchair ramp.

Wiseman said Mr. Bowie used the altered wheelchair ramp.

Wiseman said these are sufficient facts that enable the CNMI to assert the statutory immunity defense under the Building Safety Code.

With respect to NMHC’s motion to dismiss, Wiseman said the Bowies’ claim is legally sufficient because it is possible that NMHC is a person who committed the violation in question.

Wiseman said it is possible that plaintiffs can show that NMHC caused to permit violations of the Building Safety Code.

On NMHC’s motion for summary judgment, Wiseman said NMHC failed to satisfy its initial burden in light of the lack of a developed factual record.

The judge noted that the parties have yet to conduct formal discovery and there have been no interrogatories taken, depositions taken, or requests for admissions responded to.

“Without adequate discovery, and at this stage in the litigation, these are the factual determinations that this court cannot decide on a summary judgment motion,” said Wiseman in denying NMHC’s motion for summary judgment.

Attorney Joseph E. Horey is counsel for the Bowies. Attorney Mark A. Scoggins is counsel for NMHC, while assistant attorney general David Lochabay appeared for the CNMI government.