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Eckman v. Stutsman County7/29/1999
Appeal from the District Court of Stutsman County, Southeast Judicial District, the Honorable Ronald E. Goodman, Judge.
AFFIRMED.
Maring, Justice.
[ ] Ramona C. Eckman appeals from a trial court judgment following a jury verdict against her for personal injuries sustained when she slipped and fell outside the Stutsman County Courthouse. Eckman contends the trial court abused its discretion in denying her motion for a change of venue. We affirm the judgment of the trial court. I.
[ ] Eckman was employed as a certified abstractor for Stutsman County Abstract Company. As part of her duties, Eckman visited the Stutsman County Courthouse on a regular basis for over ten years. On November 28, 1994, she was injured when she slipped and fell on the sidewalk at the bottom of a stairway on the west side of the courthouse. Eckman sued Stutsman County ("County") alleging her injuries were a result of the County's failure to remove accumulations of ice and snow from the sidewalk. The County denied any wrongdoing.
[ ] Eckman moved for a change of venue on December 8, 1997, asserting she would not receive a fair trial in Stutsman County because it would be "impossible to keep the jury from intentionally or inadvertently viewing the site and gathering information beyond that which presented in court." The County resisted the motion contending there was no evidence the jury would disregard the trial court's instructions to refrain from conducting independent investigations of the premises. The trial court denied the motion concluding it would be possible to have a fair and impartial trial in the Stutsman County Courthouse.
[ ] Following a three-day trial, the nine-person jury returned a verdict in favor of the County. The trial court entered a judgment dismissing the negligence claim. Eckman appealed.
II.
[ ] Eckman asserts the trial court abused its discretion in denying her motion for a change of venue because while entering and leaving the courthouse on a daily basis, the jury was able to independently examine and evaluate the very site where she was injured. She also claims the County had an opportunity to influence the jury because it "hosted" the trial. The County contends the trial court did not abuse its discretion because there is no evidence in the record to demonstrate Eckman did not receive a fair and impartial trial.
[ ] Generally, an action must be brought in the county in which the defendant resides at the time of the commencement of an action. N.D.C.C. § 28-04-05; see also Varriano v. Bang, 541 N.W.2d 707, 711 (N.D. 1996); Jerry Harmon Motors, Inc. v. First Nat'l Bank & Trust Co., 440 N.W.2d 704, 708 (N.D. 1989). The trial court has broad discretion to change the place for trial under N.D.C.C. § 28-04-07 when there is reason to believe a fair and impartial trial would be impossible in the county where the action is pending. See Jerry Harmon, at 708. A party seeking to change the venue of an action has the burden of proving the change is warranted by the facts of the case. Cassady v. Souris River Telephone Co-op, 520 N.W.2d 803, 805 (N.D. 1994); Haugo v. Haaland, 349 N.W.2d 25, 27 (N.D. 1984).
[ ] Whether a change in venue is required to obtain a fair and impartial trial is a question of fact. Cassady, at 805; see, e.g., Slaubaugh v. Slaubaugh, 499 N.W.2d 99, 106 (N.D. 1993). This Court will not overturn a trial court's decision granting or denying a motion for a change of venue unless the court abused its discretion. See e.g., Cassady, at 805; Jerry Harmon, 440 N.W.2d at 708. A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable ma
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