may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-01-1099
C7-01-1130

Val Carlson, as Trustee for the

next of kin of Mark Carlson,

Respondent,

vs.

State of Minnesota,

Department of Natural Resources,

Appellant,

City of Detroit Lakes,

Appellant (C6-01-1099),

Defendant (C7-01-1130).

Filed January 15, 2002

Reversed

Klaphake, Judge

Becker County District Court

File No. C500000696

Amy J. Doll, Fluegel, Helseth, McLaughlin, Anderson & Brutlag, Chtd., 215 Atlantic Avenue, P.O. Box 527, Morris, MN 56267; and

Wilbur Fluegel, Fluegel Law Office, 701 Fourth Avenue South, #1260, Minneapolis, MN  55415-1815 (for respondent)

Mike Hatch, Attorney General, Margie E. Hendriksen, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent Department of Natural Resources);
John E. Hennen, Carla J. Heyl, League of Minnesota Cities, 145 University Avenue West, St. Paul, MN 55103 (for appellant Detroit Lakes)

            Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N
KLAPHAKE, Judge

            This wrongful death action arises out of respondent Mark Carlson’s January 16, 1999, fatal snowmobile accident which occurred after he drove into a fishing pier seasonally stored in the outlet of the Pelican River.  Appellants, City of Detroit Lakes (city), which owns and structurally repairs the pier, and State of Minnesota, Department of Natural Resources (state), which annually maintains the pier, challenge the district court’s denial of their summary judgment and dismissal motions.  Appellants claim that they are entitled to recreational use immunity under Minn. Stat. §§ 3.736, subd. 3(i), and 466.03, subd. 15 (2000).  The city also claims it is entitled to statutory immunity under Minn. Stat. § 466.03, subd. 6 (2000), and the state claims it is entitled to vicarious official immunity and statutory immunity under Minn. Stat. § 3.736, subd. 3(b) (2000).  Because we conclude that appellants are entitled to recreational use immunity, we reverse.

D E C I S I O N
            Neither the state nor its employees are liable for “a loss incurred by a user arising from the construction, operation, or maintenance of the outdoor recreation system.”  Minn. Stat. § 3.76, subd. 3(i) (2000); see Minn. Stat § 466.03, subd. 15 (2000) (extending recreational use immunity to municipalities).  This case turns on whether respondent, at the time of his accident, fell within the statutory definition of a “user” of the state’s recreation system.

            The district court concluded that recreational use immunity did not apply because respondent was not a user of the pier when his accident occurred.  We disagree with the district court’s construction of the word “user” as it applies to the facts of this case.  The purpose of the recreational use immunity statute is to protect the government from suit for its decisions regarding recreational areas, such as piers, to effectuate the larger purpose of “preserv[ing] * * * Minnesota’s outdoor recreational resources,” and “the state’s freedom to manage [these] areas in the best interests of the state and its citizenry.”  Green Glo Turf Farms, Inc. v. State, 347 N.W.2d 491, 495 (Minn. 1984) (quotation omitted).[1] 

            A construction of the word “user” that requires a person to be located on the pier or fishing from the pier is too narrow to fulfill the larger purpose of the statute—to protect the government from suit for its construction, operation, and maintenance of numerous outdoor recreation areas in this state.[2]  Rather, we construe the word “user” more broadly, to encompass a snowmobiler who traverses a public lake at night, enters open water in a river, and collides with a recreational pier stored there during the winter.  See id.

            Our decision here is in accord with other cases in which the state or a municipality has been given immunity from suit for injuries occurring within the state’s recreation system.  See, e.g., Steinke v. City of Andover, 525 N.W.2d 173, 176-77 (Minn. 1994) (plaintiff injured after driving into drainage ditch in city park); Sirek, by Beaumaster v. State, Dep’t of Natural Res., 496 N.W.2d 807, 812 (Minn. 1993) (pedestrian on state park trail injured by car while crossing highway); Schaffer v. Spirit Mountain Recreation Area Auth., 541 N.W.2d 357, 360 (Minn. App. 1995) (plaintiff injured by skiing into barrel while using city ski hill); Johnson v. State, 478 N.W.2d 769, 773-74 (Minn. App. 1991) (plaintiff injured by falling over raised sidewalk joint at information center located in state rest area), review denied (Minn. Feb. 27, 1992).  While this accident did not occur on park land, it did occur on state land generally maintained for public recreation, and we see no reason to distinguish this case merely because the pier was temporarily placed in public water.  See In re County Ditch No. 34, 142 Minn. 37, 41, 170 N.W. 883, 884-85 (1919) (navigable meandering waters belong to state, in trust for public, and must be preserved for recreational use and enjoyment of public); see also Green Glo, 347 N.W.2d at 494 (as used in recreational use immunity statute, loss “arising from” construction of outdoor recreation system includes “all reasonably foreseeable consequences of the state’s actions, whether those consequences occur on the state’s land or outside it”).

            Thus, we conclude that the district court erred in denying appellants’ motion for summary judgment.  See Christopherson v. City of Albert Lea, 623 N.W.2d 272, 275 (Minn. App. 2001) (district court’s decision on whether to apply immunity is legal question subject to de novo review).  Because we conclude that recreational use immunity applies to appellants, we decline to reach the other immunity defenses they have raised.

            Reversed.                           

——————————————————————————–

[1] Although the recreational use statute was amended in 1985 to require that the injured party be a “user” of the recreation system, we do not construe this amendment as a change in the statute’s fundamental purpose.  See 1985 Minn. Laws First Spec. Sess. ch. 16, art. 1 § 1. 

[2] The pier at issue was constructed in response to a donation that has funded the construction of about 200 fishing piers throughout the state since 1984.

Minnesota Fatal Snowmobile Accident

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-127
 

Allan J. Dailey,

as trustee for the heirs and next of kin of

Kamyab Aghai Tabriz,

Appellant,

vs.

Sports World South, Inc.,

d/b/a Scuba Center, et al.,

Respondents.

Filed September 30, 2003
Affirmed

Kalitowski, Judge
Dissenting, Schumacher, Judge
 

Hennepin County District Court

File No. WD 02-2788

John P. Sheehy, Michael C. Snyder, Pamela J. Spaulding, Meshbesher & Spence, Ltd., 1616 Park Avenue, Minneapolis, MN 55404 (for appellant)

Katherine A. McBride, Michael D. Hutchens, Erica Gutmann Strohl, Meagher & Geer, P.L.L.P., 33 South Sixth Street, Suite 4200, Minneapolis, MN 55402; and

Mark Hruska, pro hac vice, 750 South Dixie Highway, Boca Raton, FL 33432 (for respondents)

            Considered and decided by Kalitowski, Presiding Judge; Schumacher, Judge; and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant brought this wrongful death action alleging negligent supervision and instruction during a scuba-diving class.  The district court granted summary judgment to respondents based on an exculpatory clause in the release signed by the decedent.  Appellant argues the district court erred in granting summary judgment because:  (1) the exculpatory clause is unenforceable; and (2) the exculpatory clause does not apply to the instructors not specifically named in it.  We affirm.

FACTS
 

            Sports World South, Inc., d/b/a Scuba Center (Scuba Center) offers a scuba-diving class consisting of classroom and pool training, followed by an open-water-training dive.  Kamyab Aghai Tabriz (Tabriz) enrolled in Scuba Center’s open-water course.  On June 15, 2001, Tabriz signed a document entitled “Liability Release and Express Assumption of Risk” (release). 

            Beginning on June 15, 2001, Tabriz attended the classroom and pool training.  Rick Duffy was the instructor.  According to Duffy, Tabriz “demonstrated mastery of all theoretical concepts and performance requirements and was therefore qualified to begin his open water training.” 

            On June 23, 2001, Tabriz participated in the open-water training.  Ten students attended and were divided into two groups.  Six students, including Tabriz, were assigned to one instructor, Mary Nelson, and the four remaining students were assigned to the other instructor, Dan Schibel.  The students were grouped in pairs, in accordance with established safe diving practices that require using the buddy system throughout every dive.

            Tabriz’s group began by doing a dive and swim around the perimeter of a course laid out by colored rope near the bottom of the lake.  The other group began by performing skills tests near the shore.  Tabriz apparently became uncomfortable during the dive and joined the other group near the shore.  When the second group began their dive and swim, Tabriz joined them with instructor Schibel as his buddy.  Upon surfacing, the instructors realized Tabriz was missing.  He was subsequently found in 15 to 16 feet of water with his regulator out of his mouth.  Tabriz later died at the hospital.  According to the police report, the autopsy indicated Tabriz died from drowning.

            Appellant, as trustee for the heirs and next-of-kin of Tabriz, initiated a wrongful-death claim against respondents.  Appellant’s complaint alleged respondents negligently caused Tabriz’s death by failing to provide proper instruction, supervision, and warnings during the open-water dive. 

            Respondents moved for summary judgment, arguing that the negligence claims were barred by the exculpatory release signed by Tabriz.  The district court agreed and granted respondents’ motion for summary judgment and dismissed appellant’s complaint with prejudice.

D E C I S I O N
 

I.

            On appeal from summary judgment, this court asks two questions:  (1) whether there are any genuine issues of material facts; and (2) whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).

            Appellant argues the release signed by Tabriz is unenforceable as a matter of law because it (1) purports to release respondents from willful or wanton recklessness, or intentional conduct; (2) is ambiguous in scope; and (3) violates public policy.

1.         Willful or wanton recklessness or intentional conduct

            “If [a] clause . . . purports to release the benefited party from liability for intentional, willful or wanton acts, it will not be enforced.”  Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 923 (Minn. 1982).  Moreover, a clause exonerating a party from liability is strictly construed against the benefited party.  Id.  But whether an agreement’s language is ambiguous is a question of law in the first instance.  Blattner v. Forster, 322 N.W.2d 319, 321 (Minn. 1982).  Therefore, this court reviews de novo the district court’s determination that the release exonerates respondents for acts of negligence only.  See Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984).

            The release signed by Tabriz provided the following:

I understand and agree that neither my instructor(s), _______ the facility through which I received by instruction, _______ nor International PADI, Inc., nor any of their respective employees, officers, agents or assigns, (hereinafter referred to as “Released Parties”) may be held liable or responsible in any way for any injury, death, or other damages to me or my family, heirs, or assigns that may occur as a result of my participation in this diving class or as a result of the negligence of any party, including the Released Parties, whether passive or active.

“Rick Duffy” was handwritten in the first blank and “Scuba Center” was inserted in the second blank.  The final paragraph in the release also addresses respondents’ liability as follows:

IT IS THE INTENTION OF _________ BY THIS INSTRUMENT TO EXEMPT AND RELEASE MY INSTRUCTORS, ________ THE FACILITY THROUGH WHICH I RECEIVED MY INSTRUCTION ________ AND INTERNATIONAL PADI, INC, AND ALL RELATED ENTITIES AS DEFINED ABOVE, FROM ALL LIABILITY OR RESPONSIBILITY WHATSOEVER FOR PERSONAL INJURY, PROPERTY DAMAGE OR WRONGFUL DEATH HOWEVER CAUSED, INCLUDING, BUT NOT LIMITED TO, THE NEGLIGENCE OF THE RELEASED PARTIES, WHETHER PASSIVE OR ACTIVE.

Handwritten in the three spaces respectively are, “Kamyab A. Tabriz,” “Rick Duffy,” and “Scuba Center.” 

            The language contained in this release is substantially similar to the language of the releases upheld in Schlobohm and Malecha v. St. Croix Valley Skydiving Club, Inc., 392 N.W.2d 727 (Minn. App. 1986), review denied (Minn. Oct. 29, 1986).  In Schlobohm, the plaintiff signed a release agreeing not to hold Spa Petite, a health club, liable

for any claims, demands, injuries, damages, actions or causes of action, whatsoever to member or property arising out of or connected with the use of any of the services and facilities of Spa Petite . . . member does hereby expressly forever release and discharge the said Spa Petite from all such claims, demands, injuries, damages, actions or causes of action, and from all acts of active or passive negligence on the part of such company, corporation, club, its servants, agents, or employees. 

Schlobohm, 326 N.W.2d at 921-22.  The court determined that this language “exonerate[s] Spa Petite from liability for acts of negligence and negligence only.”  Id. at 923.  Similar to the case here, the court also noted that the claims of the plaintiff were based on negligence only and there was no claim that Spa Petite acted willfully, intentionally, or wantonly.  Id.

            In Malecha, the waiver provided:

That I, [Rick Malecha], the undersigned, while engaging in the sport of parachuting or skydiving, do hereby agree for myself, my heirs, executors, administrators and assigns, that neither said St. Croix Valley Skydiving Club Inc., nor any of its officers or members shall be held responsible or liable for any negligence implied or otherwise, or personal injury, or death, or property loss, or damage suffered or sustained by me in connection with or arising out of or resulting from any or all parachuting or skydiving activities engaged in by me; and further, I do hereby, for myself, my heirs, administrators, executors, and assigns, assume all risk whatsoever of personal injury or death or property damage or loss in connection with or arising out of or resulting from any or all parachuting or skydiving activities engaged in by me, and absolve and release said St. Croix Valley Skydiving Club, Inc., its officers and members, of and from all liability thereof, and further, I do hereby convent [sic] and agree for myself, my heirs, executors, administrators, and assigns, not to sue, arrest, attach, or prosecute said St. Croix Valley Skydiving Club, Inc., its officers and members for or on account of any such personal injury or death or property damage or loss, it being my express intent and purpose to bind myself, my heirs, executors, administrators, and assigns hereby.

Malecha, 392 N.W.2d at 728.  The court determined, “[e]ven though the agreement is unnecessarily wordy, it is susceptible to only one reasonable interpretation.”  Id. at 729.  It then released respondent from liability for negligence only.  Id. at 732.  The court also acknowledged that “some of the language in the agreement could be construed to extend beyond acts of negligence,” but reasoned that the agreement in Schlobohm also included broad language.  Id. at 729.  Thus, the Malecha court upheld the release as a valid exculpatory agreement.  The court also noted that, like the plaintiff in Schlobohm, the plaintiff in Malecha alleged only that the skydiving club had been negligent and did not allege any damage from intentional or willful acts.  Id. at 730.

            We apply the same interpretation here.  Appellant contends that some of the language contained in the release is an attempt by respondents to escape liability for intentional, willful, or wanton acts.  We conclude, however, that based on Schlobohm and Malecha, the only reasonable interpretation of the language in this release is that it exonerates respondents from liability for acts of negligence only.  Moreover, appellant has not alleged any claims resulting from intentional or willful acts.

            Appellant relies primarily on Nimis v. St. Paul Turners, 521 N.W.2d 54 (Minn. App. 1994) for support that the release should not be enforced.  In Nimis, the plaintiff agreed to release the defendant from liability for injuries “caused or alleged to be caused in whole or in part by the negligence of the . . . [defendant] or otherwise.”  Id. at 57.  The court commented that the language “or otherwise” caused the agreement to be ambiguous as to whether it released the defendant for injuries caused intentionally.  Id. at 58.  But the court’s comment regarding the ambiguity of the release was not the deciding issue in the case; therefore, the comment was dicta.  See K.R. v. Sanford, 588 N.W.2d 545, 548 (Minn. App. 1999) (stating that dicta are expressions in an opinion that go beyond the facts of the case), aff’d, 605 N.W.2d 387 (Minn. 2000).  The court ultimately concluded that the plaintiff was not subject to any waiver at the time of her injury because it had expired at the termination of the underlying contract.  Nimis, 521 N.W.2d at 58.  Thus, Nimis is not controlling here.

2.         Ambiguous scope

            Whether an agreement is ambiguous is a question of law that this court reviews de novo.  Blattner, 322 N.W.2d at 321.  Appellant argues that the scope of the release is ambiguous because Tabriz did not knowingly or intentionally waive his right to receive supervised instruction from a competent instructor or competent buddy.  The district court determined that these are claims for negligence arising out of participation in the diving class that are within the scope of the release.  We agree.

            The release signed by Tabriz provides that neither the instructors nor the facility may be held liable for any bodily injury or wrongful death caused by his participation in the class or negligence by the instructors.  Thus, by the plain language of the release, Tabriz released respondents from liability for any alleged negligent instruction.  See Turner v. Alpha Phi Sorority House, 276 N.W.2d 63, 67 (Minn. 1979) (stating that language in a contract is given its plain and ordinary meaning).

            The Malecha court addressed an argument similar to the one raised by appellant here.  The plaintiff in Malecha argued that the skydiving club’s alleged failure to properly pack his parachute was not within the scope of the exculpatory agreement.  Malecha, 392 N.W.2d at 731.  The court concluded, however, that the broad definition of potential negligence in the exculpatory clause encompassed the type of accident that occurred.  Id.  The court also stated that the parachute was an integral part of skydiving and therefore, “[t]here would be no rational basis upon which to exclude from the scope of the exculpatory agreement negligence resulting in a malfunction of the parachute.”  Id.

            We conclude that a similar analysis applies here.  Receiving instruction from teachers is an integral part of a scuba-diving class and therefore, it would not be rational to exclude negligent instruction from the scope of this release.

3.         Public Policy

            Schlobohm also requires courts to determine whether an exculpatory clause violates public policy.  326 N.W.2d at 923.  Before enforcing an exculpatory clause, both prongs of the test must be examined.  Id.  They are:  (1) whether there was a disparity in bargaining power between the parties; and (2) whether the type of services being provided are public or essential.  Id.  

            According to Schlobohm, a disparity of bargaining power exists when an adhesion contract is drafted unilaterally by a business and forced on an unwilling and unknowing public “for services that cannot readily be obtained elsewhere.”  Id. at 924 (citations omitted).  Generally, it is a contract not bargained for but imposed on the public for a necessary service on a “take it or leave it” basis.  Id.  Moreover, “[t]here must be a showing that the parties were greatly disparate in bargaining power, that there was no opportunity for negotiation and that the services could not be obtained elsewhere.”  Id. (citations omitted) (emphasis in original). 

            In Schlobohm, the supreme court determined that there was not a disparity in bargaining power because the plaintiff voluntarily applied for membership at the health club, and there was no showing that the services were necessary or that they could not have been obtained elsewhere.  Id. at 925.

            Here, Tabriz voluntarily signed up for the scuba-diving class, and there was no showing that the services were necessary or that they could not have been obtained elsewhere.  Tabriz had his choice of several other scuba-diving facilities in the area.  Moreover, Tabriz was not compelled to scuba dive and had the choice to forego the activity altogether.  See Malecha, 392 N.W.2d at 730.

            In addition, although appellant concedes that scuba diving is not an essential public service, he argues that scuba diving implicates the public interest and therefore, suggests that the standard set forth in Schlobohm be extended to encompass not only essential services, but services that affect the public interest.  But appellant offers no support for his position other than policy arguments and foreign caselaw.  And the majority of the Minnesota Supreme Court in Schlobohm rejected that argument and concluded that recreational activities are not essential public services.  Id. at 925-26.

II.

            Finally, appellant argues that even if we uphold the release as valid, it does not apply to this incident because the release applies only to the instruction Tabriz received from Rick Duffy during Part I of the scuba-diving course and did not apply to the direction he received from other instructors.  But according to the language in the exculpatory clause, Tabriz agreed to release his instructors, Scuba World, and all of their “respective employees.”  Thus, although Schibel and Nelson’s names are not specifically listed on the release signed by Tabriz, they are released from liability as employees of Scuba World.

            Affirmed.

ROBERT H. SCHUMACHER, Judge (dissenting)

            I respectfully dissent.  I believe the exculpatory clause at issue here is unenforceable because it is ambiguous, does not comport with fundamental contract principles, and is against public policy.

If an exculpatory clause “is either ambiguous in scope or purports to release the benefited party from liability for intentional, willful or wanton acts, it will not be enforced.”  Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 923 (Minn. 1982).  Here, the clause’s final paragraph in capital letters claims to prevent students from recovering for any injury “however caused, including, but not limited to, the negligence of the released parties.”  (Emphasis added.)    I find it difficult to imagine how a clause that specifically states it is “not limited to negligence” does not purport to release the respondents from liability for intentional willful or wanton acts.  The clause is unenforceable, regardless of whether or not there is a claim for willful or wanton conduct in this case.

A contract must conform to the basic fundamentals of contract law.  A contract is the result of a bargained-for exchange where both sides exercised good faith and fair dealing.  In re Hennepin County 1986 Recycling Bond Litig., 540 N.W.2d 494, 502 (Minn. 1995) (holding “every contract includes an implied covenant of good faith and fair dealing”); Cederstand v. Lutheran Bhd., 263 Minn 520, 530, 117 N.W.2d 213, 220 (1962) (stating “a contractual promise [must] be the product of a bargain”); Restatement (Second) of Contracts §§ 17 and 205 (1981).  Good faith, at a minimum, excludes actions that violate community standards of decency, fairness, or reasonableness.  Restatement (Second) of Contracts § 205 cmt. a (1981).  Subterfuge, evasion, and “abuse of power to specify terms” are some examples of bad faith.  Id.  cmt. d.  I believe if Scuba Center wishes to shield itself from its own liability, the release should be honestly and legitimately negotiated.  See Turnbough v. Ladner, 754 So.2d 467, 469 (Miss. 1999) (holding exculpatory clauses that are not “fairly and honestly negotiated and understandingly entered into” are invalid (quotation omitted); Schmidt v. United States, 912 P.2d 871, 875 (Okla. 1996) (stating that exculpatory clause is only valid from bargained-for exchange “on a level playing field” where level varies according to seriousness of the contract’s subject matter and options available to injured party).  Allowing Scuba Center to ignore the most basic rules of contract law does not support “freedom of contract.”

The case at hand is indicative of why exculpatory clauses must be fairly and honestly negotiated and understood by both parties.  Tabriz was presented with a pre-printed “Liability Release and Express Assumption of Risk” form, which he was required to sign in order to participate in the certification process.  There is no evidence that any negotiation took place regarding other options such as paying more money to participate without the clause.  Furthermore, the release is evasive and fails to adequately state significant dangers.  The release contains a detailed discussion of hyperbaric injuries but says nothing about the danger of drowning from panic.  See Phyllis G. Coleman, Scuba Diving Injuries: Causes, Remedies and Defenses 29 J. Mar. L. & Com. 519, 541 (1998) (suggesting, in light of study finding 54% of experienced divers questioned had panicked at least once, scuba industry is masking dangers of panic to keep new customers flowing through door).  The release does not refer to the possibility that the instructor may deviate from accepted practices or that an instructor’s decision to affirmatively undertake a greater duty of care does not expose the instructor or Scuba Center to any level of liability.  The release was not the result of a bargained-for exchange where both sides exercised good faith and fair dealing.

The need for freedom of contract cannot support a contract that “violates some principle which is of even greater importance to the general public.”  Christensen v. Eggen, 577 N.W.2d 221, 225 (Minn. 1998) (quoting Rossman v. 740 River Drive, 308 Minn. 134, 136, 241 N.W.2d 91, 92 (1976)).  Scuba Center argues that the public policy issue in this case squarely falls within Schlobohm’s analysisbecause it involves a recreational activity.  What is at issue here, however, is instruction and not recreation.  Baschuk v. Diver’s Way Scuba, Inc., 618 N.Y.S.2d 428, 430 (N.Y. App. Div. 1994).  Unskilled consumers seek instruction because they cannot understand all dangers an activity, foreign to the average person, presents nor can they know how to escape danger when arises.  Instead, the consumers must entrust the instructor and the school with their very lives.  In a time when this country has realized the need for a heightened sense of corporate responsibility, I fail to see how upholding a release of liability for a company that is entrusted with the lives of this state’s citizens, and then violates that trust, serves the public interest. 

As the Virginia Supreme Court eloquently stated in invalidating an exculpatory clause involving a sporting event, allowing one party “to put the other parties to the contract at the mercy of its own misconduct . . . can never be lawfully done where an enlightened system of jurisprudence prevails.  Public policy forbids it and contracts against public policy are void.”  Hiett v. Lake Barcroft Cmty. Ass’n, 418 S.E.2d 894, 896 (Va. 1992) (alteration in original) (quotation omitted).   In Minnesota, a basic precept of justice and a principle embodied in Section 8, Article 1 of the Minnesota Constitution is a wrongdoer should bear the burden of his or her own conduct, not the innocent victim.    Anderson v. Stream, 295 N.W.2d 595, 600 (Minn. 1980). We have long recognized that this policy outweighs the need of “freedom in contract” when it comes to the sale of consumer goods.     See Minn. Stat. § 336.2-719 (2002) (”Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.”).   Consumer instruction should not be any different.

            I would reverse the district court’s grant of summary judgment and remand for trial.

Minnesota Lawyer

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-732
A03-979
 

Annie Wallert Schomberg,

Trustee for the Next of Kin of JaJa Roy Hatfield, et al.,

Appellants (A03-732),

Plaintiffs (A03-979),

vs.

Ferrellgas, Inc.,

Respondent,

Susan Style,

Special Administrator of the Estate of Kathleen Ann Hatfield,

Defendant (A03-732),

Appellant (A03-979).

Filed January 20, 2004
Affirmed

Kalitowski, Judge
 

Martin County District Court

File No. CX-01-911

Daniel A. O’Fallon, Brooke B. Tassoni, Robins, Kaplan, Miller & Ciresi L.L.P., 2800 LaSalle Plaza, 800 LaSalle Avenue, Minneapolis, MN 55402; and

Gregory N. McEwen, McEwen Law Firm, 1600 Pioneer Building, 336 North Robert Street, St. Paul, MN 55101 (for appellants Annie Wallert Schomberg, et al.)

James H. Turk, Elizabeth L. Weinandt, Blethen, Gage & Krause, PLLP, 127 South Second Street, P.O. Box 3049, Mankato, MN 56002-3049 (for appellant Susan Style)

Terry W. Viesselman, Viesselman & Barke, P.A., 923 North State Street, Suite 130, Fairmont, MN 56031; and

Mark F. Krause (pro hac vice), Schlee, Huber, McMullen & Krause, P.C., 4050 Pennsylvania, Suite 300, P.O. Box 32430, Kansas City, MO 64171-5430 (for respondent)

            Considered by Halbrooks, Presiding Judge; Kalitowski, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Annie Schomberg, trustee for JaJa, Brenna, and Brandon Hatfield, and Barbara Cuppy, trustee for Jenny Hoffmeyer (appellants) brought a wrongful death action against respondent Ferrellgas, and Susan Style, special administrator of the estate of Kathleen Hatfield.  Appellants challenge the district court’s decision granting summary judgment to Ferrellgas.  Appellant Style, co-defendant in the district court action, challenges the district court’s finding that Kathleen Hatfield had knowledge of the dangerous condition of the gas heater.  These appeals are consolidated before this court.  We affirm.

D E C I S I O N
 

On appeal from summary judgment, the reviewing court must determine whether there are any genuine issues of material fact and whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  Although appellate courts view the evidence in the light most favorable to the party against whom judgment was granted, summary judgment is appropriate against a party who fails to establish the existence of an element essential to its case.  Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995).

I.

            Appellants first argue that the district court erred in granting summary judgment to Ferrellgas on the ground that Ferrellgas had no duty to warn.  In a negligence action, a defendant is entitled to summary judgment when the record reflects a “complete lack of proof on an essential element of the plaintiff’s claim.”  Lubbers, 539 N.W.2d 398, 401.  To prove negligence, a plaintiff must show (1) a duty of care existed; (2) that duty was breached; (3) an injury was sustained; and (4) breach of the duty proximately caused the injury.  Id.  Whether a duty exists is a question of law, which appellate courts review de novo.  Larson v. Larson, 373 N.W.2d 287, 289 (Minn. 1985).

            Appellants cite cases for the proposition that a manufacturer has a duty to warn against foreseeable dangers.  But there is no duty to warn of obvious dangers.  Mix v. MTD Prods., Inc., 393 N.W.2d 18, 19 (Minn. App. 1986).  A condition is not “obvious” unless both the condition and the risk are apparent and would be recognized by a reasonable person exercising ordinary perception, intelligence, and judgment.  Restatement (Second) of Torts § 343A, cmt. b (1965).  The rationale behind the rule is that an individual does not need to be warned “of what he knows or reasonably may be expected to know.”  Baber v. Dill, 531 N.W.2d 493, 496 (Minn. 1995) (quotation omitted).

            Ferrellgas is a supplier of propane.  It is undisputed that Ferrellgas did not manufacture, own, or service the heater or the venting involved in the fire that is the subject of this action.  The heater at issue was over 30 years old, and was purchased at an auction.  Moreover, it is undisputed that the heater was initially installed by unqualified individuals, and shortly after it was connected to a propane tank, Jerome Miller, a family friend, and Kathleen Hatfield smelled gas.  Because they smelled gas, Miller disconnected the heater from the propane tank, told Hatfield that the heater was dangerous, and instructed Hatfield to have the fire department or the gas company hook up the heater.  Thus, the risk of operating the propane heater was obvious.  See Balder v. Haley, 399 N.W.2d 77, 82 (Minn. 1987) (stating that a verbal warning and the smell of gas should have made the danger obvious).

            Appellants argue that improper venting in a subsequent installation caused the fire, and that this danger is not open and obvious.  But the danger concerning use of the heater was open and obvious.  See Balder, 399 N.W.2d at 82.  The very nature of propane gas, coupled with the earlier aborted installation because of the smell of gas and a verbal warning, makes the operation of the heater and risk of fire apparent such that a reasonable person exercising ordinary perception, intelligence, and judgment would recognize the risks.  Therefore, we conclude that the district court did not err in determining that Ferrellgas, who did not own, operate, control, or service the used heater or know of the alleged deficiencies in its installation, owed no duty to warn appellants.  See Balder, 399 N.W.2d at 81 (stating that no duty to warn exists where the connection between the alleged negligent act and the event causing the danger is too remote).

II.

            Appellants next argue that even if Ferrellgas did not have a duty to warn, it assumed a duty to warn by its actions.  “It is a long-standing tenet of tort law that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.”  State by Humphrey v. Philip Morris, Inc., 551 N.W.2d 490, 493 (Minn. 1996) (citations and quotation omitted).  But assumption of duty only applies where it “leads others to rely on such assumption of duty and to refrain from taking other and more direct action to protect themselves . . . .”  Abresch v. Northwestern Bell Tel. Co., 246 Minn. 408, 416, 75 N.W.2d 206, 211-12 (1956).

            Appellants argue that Ferrellgas had policies in place to warn customers including placing warnings on the back of invoices and mailing out propane safety plans.  Appellants contend that by taking action to warn, Ferrellgas now has a duty to warn in a nonnegligent manner.  But Ferrellgas’s warnings specifically stated that appliances should be serviced only by a qualified service technician and that the propane system and appliances should be inspected periodically by a qualified service technician.  And appellants concede that if any of the warnings had been read and heeded, the incident would not have occurred.  Additionally, there is no evidence that anyone in the residence read the warnings sent out by Ferrellgas and decided not to get further information on the dangers of propane.  Thus, appellants offered no evidence indicating that anyone relied on respondent’s warnings, or refrained from taking other and more direct action to protect themselves because of this reliance.

            Because there is no evidence indicating a reliance on the allegedly defective warnings, the district court correctly concluded that respondent did not assume a duty to warn.  See Williams v. Harris, 518 N.W.2d 864, 869 (Minn. App. 1994) (holding that summary judgment is appropriate in assumption of duty cases where appellant failed to show reliance on respondent’s conduct), review denied (Minn. Sept. 28, 1994).  And because we affirm the district court’s conclusion that respondent owed no duty to warn appellants, we do not reach the issue of whether the warnings were adequate.

III.

            Appellant Style, concerned that in dismissing appellants’ action against Ferrellgas the district court made findings contrary to the interests of co-defendant Estate of Kathleen Hatfield, argues that the district court erred in determining, as a matter of law, that Hatfield had actual knowledge of the dangerous condition in her garage.  But the district court did not determine that Hatfield had actual knowledge that the heater had been reconnected and posed a danger.  Rather, the district court held that “ . . . Ferrellgas had no duty to warn, and as such, the Plaintiff’s claim that such warnings were inadequate fail as a matter of law.” 

            The question of Hatfield’s negligence, which was not directly at issue in Ferrellgas’s motion for summary judgment, depends on whether Hatfield had actual knowledge of, or an opportunity to determine that, a dangerous condition existed at the time of the fire.  See Otto v. City of St. Paul, 460 N.W.2d 359, 362 (Minn. App. 1990).  Because the district court did not make any determination as to whether Hatfield was aware, or should have been aware of a dangerous condition at the time of the fire, the district court’s decision does not, for purposes of further proceedings, determine that Hatfield was negligent.

            Affirmed.

 
Gas Explosion Lawyer Minnesota

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

STATE OF MINNESOTA
IN COURT OF APPEALS

A03-1609, A03-1835
 

Great West Casualty Company,
Appellant (A03-1609),
Respondent (A03-1835),

vs.

Carolina Casualty Insurance Company,
Respondent (A03-1609),
Appellant (A03-1835),

Select Transportation, Inc., d/b/a M&M Trucking,
Respondent,

Shawn Everhardt,

Respondent,

Carrielee Perez,

trustee and next of kin of Kevin Vance,

Respondent,

Mad Dog Trucking, Inc.,

Respondent,

 
Northland Insurance Company,
Respondent.  
 

Filed May 4, 2004
Reversed and remanded

Minge, Judge
 

Kanabec County District Court

File No. C4-02-547

Michael W. McNee, Andrea E. Reisbord, Tamara L. Novotny, Cousineau, McGuire & Anderson, 1550 Utica Avenue South, 600 Travelers Express Tower, Minneapolis, MN 55416 (for appellant Great West)

Frederick L. Grunke, Rajkowski Hansmeier Ltd., 11 Seventh Avenue North, P.O. Box 1433, St. Cloud, MN 56302 (for respondent Carolina Casualty)

John R. Crawford, Daniel E. Hintz, Johnson & Lindberg, P.A., 7900 International Drive, Suite 960, Minneapolis, MN 55425-1582 (for respondent Select Transportation)

Richard J. Nygaard, Steven R. Kluz, Jr., Paula Duggan Vraa, Rider, Bennett, Egan & Arundel, LLP, 333 South Seventh Street, Suite 2000, Minneapolis, MN 55402 (for respondent Carrielee Perez)

Stacy E. Cudd, Daniel A. Haws, Murnane, Conlin, White & Brandt, 444 Cedar Street, 1800 U.S. Bancorp/Piper Jaffray Plaza, St. Paul, MN 55101 (for respondent Northland)

            Considered and decided by Shumaker, Presiding Judge; Kalitowski, Judge; and Minge, Judge.
 

U N P U B L I S H E D  O P I N I O N
 

MINGE, Judge

This proceeding consolidates related appeals from a summary judgment holding trucking firms and their insurers liable in a wrongful death action.  We consider challenges to the determinations that respondent Everhardt and the insurer of his truck, Great Western Casualty Company, are primarily liable and that other insurers and trucking firms are liable for excess damages.  Because there are genuine issues of material fact and because there is no evidence to support a finding of liability as to one of the trucking firms and its insurer, we reverse the entry of summary judgment and remand. 

 
FACTS
Respondent Shawn Everhardt drives and owns his own truck.  In July 2001, he was seeking work and talked to Mahna Dauer, the vice president and co-owner of respondent Mad Dog Trucking, Inc. (Mad Dog).  Mad Dog had leased two of its trucks with drivers to Select Transportation, Inc. (Select) to haul concrete panels on a job for Murphy Rigging & Erecting (Murphy Rigging) in south Minneapolis.  Dauer told Everhardt that Select might be looking for another truck and driver on the Murphy Rigging job.  Dauer called Select and spoke with its president, Mark Christenson, about Everhardt’s availability to work for Murphy Rigging.  Christenson allegedly told Dauer to send Everhardt to Select’s office to fill out an application.  While Everhardt did not go to Select’s office, Mad Dog had copies of some of Select’s contract documents, which Dauer gave to Everhardt and helped him complete.  However, none of these documents were signed by Select.

On August 7, 8, and 13, 2001, Everhardt drove his truck tractor to the Murphy Rigging job site and began hauling loads for Select even though he did not have a signed agreement or any of the required placards on his vehicle indicating that he was driving for or leased to Select.  Select’s representative at the job site was Jeremiah Mitchell, an independent owner/operator who acted as liaison at the job site between Select and the various drivers.  On the days that Everhardt hauled loads, he filled out job tickets and gave these tickets to Mitchell.  Select processed the job tickets and sent invoices to Murphy Rigging for payment.

            When Everhardt arrived at the site on August 14, Mitchell told him that he was not needed that day, that there had been a complaint that he did not have Select placards on his truck, and that he should obtain placards.  Select alleged that its officers and managers had not realized that Everhardt had been working at the site, and when it learned he was there, it instructed Mitchell that Everhardt could not drive until he had completed all required paperwork and obtained placards.  In fact, Mitchell and the Mad Dog drivers had completed Select’s application process, which included drug testing, background checks, reference checks, and vehicle inspections.

            Upon learning that he could not drive his truck on the Murphy Rigging job on August 14, Everhardt apparently decided that he would use the day to repair his truck, obtain Select placards, and complete Select’s paperwork.  This required that he travel to Rogers, on the northwest edge of the Twin Cities metropolitan area.  After first moving a trailer at the job site at the request of Mitchell, Everhardt drove his truck without any trailer (bobtailing) from the Murphy Rigging site in south Minneapolis to a repairs/parts shop in St. Paul.  Since the shop was not yet open when he arrived, Everhardt decided to purchase fuel at a nearby service station before returning to the highway.  En route to the service station, his truck struck and killed Kevin Vance. 

            Vance’s mother, Carrielee Perez, brought a wrongful death action against Everhardt, Select and Mad Dog.  Everhardt’s insurance company, Great West Casualty Company (Great West), in turn brought a declaratory judgment action to determine whether its non-trucking use policy provided coverage, or whether coverage existed under Select’s policy with Carolina Casualty Insurance (Carolina) or Mad Dog’s policy with Northland Insurance (Northland).

            Perez, Select, Great West, Northland, and Carolina brought cross-motions for summary judgment.  In April 2003, the district court granted Perez’s motion, denied summary judgment for all other parties, and found Great West primarily liable and Carolina and Northland liable for the excess damages.  Great West appealed the decision in May 2003.  In June 2003, this court remanded the appeal for a final judgment on the amount of coverage available under the Carolina and Northland policies.  In September 2003, the district court assigned primary liability coverage to Great West in the amount of $1 million, excess liability coverage to Carolina in the amount of $1 million, and excess liability coverage to Northland in the amount of $750,000.  This appeal followed. 

D E C I S I O N
On review of summary judgment, this court must determine whether there are any genuine issues of material fact and whether the district court erred in applying the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  On appeal, we view the evidence in the light most favorable to the nonmoving party.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  We will “not resolve or decide issues of fact but only determine whether there are issues of fact to be tried.”  Jonathan v. Kvaal, 403 N.W.2d 256, 259 (Minn. App. 1987), review denied (Minn. May 20, 1987).  Where there is any doubt as to the existence of a genuine issue of material fact, we must resolve such doubt in favor of finding that a fact issue exists.  Poplinski v. Gislason, 397 N.W.2d 412, 414 (Minn. App. 1986), review denied (Minn. Feb. 18, 1987).

I.

The first issue is whether the district court erred in granting summary judgment in favor of Perez and imposing primary liability on Everhardt’s insurer, Great West, when it found that an exclusionary clause in Great West’s policy was ambiguous.  Construction of an insurance policy is a question of law.  Iowa Kemper Ins. Co. v. Stone, 269 N.W.2d 885, 886-87 (Minn. 1978).  When the facts are not in dispute, the appellate court independently reviews the district court’s interpretation of the insurance contract.  Nat’l City Bank of Minneapolis v. St. Paul Fire & Marine Ins. Co., 447 N.W.2d 171, 175 (Minn. 1989).

An appellate court will construe exclusions from coverage narrowly against the insurer.  Am. Family Ins. Co. v. Walser, 628 N.W.2d 605, 609 (Minn. 2001).  The burden of proving that the policy exclusion bars coverage rests on the insurance company.  Illinois Farmers Ins. Co. v. Duffy, 618 N.W.2d 613, 615 (Minn. App. 2000).  If the language of the insurance policy is unambiguous, the court must give the language its ordinary meaning.  Nat’l Farmers Union Prop. & Cas. Co. v. Anderson, 372 N.W.2d 71, 74 (Minn. App. 1985).  But, if the policy is ambiguous, the ambiguity must be resolved in favor of the insured.  Columbia Heights Motors, Inc. v. Allstate Ins. Co., 275 N.W.2d 32, 36 (Minn. 1979).  “In construing an insurance contract, the policy must be considered as a whole.”  Am. Hoist & Derrick Co. v. Employers’ of Wausau, 454 N.W.2d 462, 466 (Minn. App. 1990), review denied (Minn. June 26, 1990).  A reviewing court must not read an ambiguity into plain language.  Jenoff, Inc. v. New Hampshire Ins. Co., 558 N.W.2d 260, 262 (Minn. 1997).

The relevant language of the exclusionary clause at issue in Great West’s non-trucking use policy reads:

15.  Trucking Operations

This insurance does not apply to:

a. A covered “auto” while used to carry property in any business; or

b. A covered “auto” while used in the business of anyone to whom the “auto” is rented, leased or loaned.[1]

The district court found that the language “in the business of” was ambiguous and should therefore be resolved in favor of coverage for Everhardt.  The court also found that it was unclear whether Everhardt was furthering Select’s business interests or personal activities at the time of the accident.

            We have previously held that the phrase “in the business of” in a similar Great West policy was not ambiguous.  Steele v. Great W. Cas. Co., 540 N.W.2d 886, 889-90 (Minn. App. 1995), review denied (Minn. Feb. 9, 1996).  In Steele, we stated that “[a]mbiguity does not arise merely because a policy must be read with some care.”  Id.  Ultimately, in Steele we declined to find an ambiguity in the policy and noted that the repeated mention of “non-trucking use” in the text of the policy and a definition that equated “trucker” with business use enabled this court to determine whether Great West’s policy applied.  Id. at 890.  Since the policy before us contains the same language, phrases, and definitions, we find that the plain language of this policy does not present a patent ambiguity.

The question then becomes whether the phrase “in the business of” in the Great West policy presents a latent as opposed to patent ambiguity.  A latent ambiguity is one that arises where the defect

does not appear on the face of language used or an instrument being considered.  It arises when language is clear and intelligible and suggests but a single meaning, but some extrinsic fact or some extraneous evidence creates a necessity for interpretation or a choice between two or more possible meanings.

Black’s Law Dictionary 883 (6th ed. 1990).  Here, the phrase “in the business of” is susceptible to at least two possible interpretations.  These are that (1) the phrase is limited to hauling a load for one who has leased the truck (auto); or (2) the phrase includes undertaking any activities that ultimately benefit the lessee. 

What is troubling here is that the applicability of paragraph 15(b) of Great West’s policy and the determination of whether its language is ambiguous are dependent on a series of factual determinations that are disputed.  There may be a latent ambiguity or no ambiguity over whether Everhardt was acting “in the business of” Select at the time of the accident.  To decide, one must resolve disputed evidence and determine the relationship between Everhardt and Select.  This includes determining what Select knew regarding Everhardt’s work at the job site, and the nature of Select’s instructions to Mitchell regarding Everhardt on the morning of the accident.  After reviewing the record and the arguments on appeal, it is evident that there are numerous genuine issues of material fact, the resolution of which is necessary to deciding this issue.  Accordingly, summary judgment was not appropriate.

II.

The next issue is whether the district court erred in finding that an implied lease existed between Select and Everhardt.  To determine whether an implied agreement exists, courts look to the conduct and acts of the parties.  Northland Ins. Co. v. Bennett, 533 N.W.2d 867, 872 (Minn. App. 1995).  In Northland, this court found that an implied truck lease agreement existed by examining the totality of the contacts between the parties.  Id.  We noted that the trucking company had represented to the Department of Transportation that the driver would be operating under its authority and had certified that the driver’s vehicle would abide by safety and inspection laws.  Id. at 873.  Additionally, the company had paid the driver’s registration fee and tariffs, and had given the driver various certification forms indicating its authority over the driver.  Id.

Here, to support its finding that an implied lease exists, the district court found that

failure to complete the application process does not bar recovery under [Select’s] insurance policy.  Shawn Everhardt had worked three days for Select on the Murphy Rigging site, had filled out job tickets that Select used to bill Murphy Rigging for the work [Everhardt] performed, and [Everhardt] was on his way to their office at the time of the accident at their direction.

The record, however, indicates that the level and nature of the contacts between Select and Everhardt is highly disputed.  While no one disputes that Everhardt actually worked on the Murphy Rigging site for three days, the deposition by Select president Mark Christensen indicates that Select had no knowledge of his presence, whereas the deposition of Jeremiah Mitchell indicates that Select did have knowledge.  There is also conflicting evidence whether Select directed Everhardt to travel to its offices or whether Mitchell was to merely tell Everhardt that he could no longer work at the Murphy Rigging site, and Everhardt, on his own initiative, began driving to Select’s offices.  Further, it is also unclear what was said to Christensen by Dauer of Mad Dog regarding Everhardt, whether Christensen even knew Everhardt’s name, and whether Select ever received a copy of the operating agreement Everhardt signed.

Utilization of the totality of the contacts test in this instance requires the district court to make conclusions from highly disputed facts concerning the contacts between the parties.  This kind of fact finding by the district court is impermissible on a motion for summary judgment.  Because the conduct and acts of the parties are material in determining whether an implied lease existed between Select and Everhardt and because these facts here are highly disputed by the parties, we conclude summary judgment was not appropriate.

III.

The final issue is whether the district court erred in finding that an implied lease agreement existed between Everhardt and Mad Dog which exposed Mad Dog and its insurer, respondent Northland, to liability.  The district court found an implied lease relationship between Everhardt, Select, and Mad Dog because the co-owner of Mad Dog had arranged for Everhardt to work on the Murphy Rigging site.  The court found that Mad Dog had informed Everhardt of the possibility of work with Select, provided and helped Everhardt fill out Select paperwork, and provided Everhardt with job tickets.  According to the district court, these facts alone meant that Everhardt was working under the authority of Mad Dog.   

The facts concerning Everhardt’s relationship with Mad Dog are not in dispute.  The evidence shows that there was no written agreement between Everhardt and Mad Dog and that no agreement was even contemplated.  There is no evidence in the record to support the finding that Mad Dog had any authority over Everhardt or the hiring and firing decisions regarding his working for Select, or any control as to the nature of Everhardt’s job duties at the work site.  Finally, although Mad Dog had leased two other drivers to Select for the Murphy Rigging site, these drivers went through Select’s formal application and hiring process and were in a position different from Everhardt.  There is no evidence that Everhardt would not have had to complete the same application process upon a referral from Mad Dog.  Further, the district court made its findings regarding Mad Dog despite other findings that Everhardt was actually under an implied lease agreement with Select and working at the direction and authority of Select at the time of the accident.  Given the totality of the contacts test discussed above, the facts cited by the district court are insufficient to support a finding that Everhardt was leased to Mad Dog.  Therefore, we reverse the district court’s finding that Mad Dog had authority over Everhardt and its subsequent finding that its insurer, respondent Northland, has any liability under its policy and we remand with instructions to enter summary judgment in favor of Mad Dog and Northland.

Reversed and remanded.

——————————————————————————–

[1] “Auto” is a term of art in the policy and includes trucks.

Minnesota Truck Accident Lawyer

STATE OF MINNESOTA

IN SUPREME COURT

A03-797

Court of Appeals

Blatz, C.J.

Matthew Radke, as trustee for the next of kin of

Makaio Lynn Radke,
Appellant,

v.

                                                                                                                                            Filed: April 21, 2005
Office of Appellate Courts
County of Freeborn, et al.,

                                    Respondents.

S Y L L A B U S

            A cause of action exists for wrongful death based on the alleged negligence of the county and two county child protection workers in the investigation of child abuse and neglect reports as required by the Child Abuse Reporting Act, Minn. Stat. § 626.556 (2004).

            Reversed and remanded.

            Heard, considered, and decided by the court en banc.

O P I N I O N

BLATZ, Chief Justice.

            The issue in this case is whether a negligence cause of action can be maintained for the intervention and investigation of reports of suspected child abuse and neglect as required under the Child Abuse Reporting Act, Minn. Stat. § 626.556 (2004) (CARA).  Appellant Matthew Radke (appellant), as trustee for the next of kin of his son Makaio Lynn Radke (Makaio), brought a wrongful death action against Freeborn County and two county child protection workers alleging that they negligently investigated reports of suspected abuse of Makaio.  The district court granted respondents’ motion to dismiss for failure to state a claim upon which relief can be granted under Minn. R. Civ. P. 12.02(e).  The court of appeals affirmed, holding that the “legislature did not expressly or impliedly create a civil cause of action under the Child Abuse Reporting Act.”  Radke v. County of Freeborn, 676 N.W.2d 295, 301 (Minn. App. 2004).  We hold that a cause of action can be maintained for negligence in the investigation and intervention of child abuse and neglect reports as required under CARA.  We therefore reverse and remand.

            Nineteen-month-old Makaio was beaten to death on April 21, 2001 by Paul Gutierrez, a friend of his mother’s.  During the months preceding Makaio’s tragic death, he was the subject of a child abuse and neglect investigation by the Freeborn County Department of Human Services.[1]   At the time of his death, Makaio’s parents had separated and were in the process of dissolving their marriage.  In January 2001, appellant had moved out of the family’s home and Makaio was living with his mother, Peggy Radke (Radke), and two other adults, Gutierrez and Kristina Baker.  Upon learning that Gutierrez was living at the home, appellant become concerned and called the Albert Lea Police Department to make a complaint on January 20, 2001. 

            On February 28, 2001, appellant brought Makaio to the Albert Lea Medical Center where a doctor examined Makaio.  Based on his examination of Makaio, which revealed that Makaio had lesions behind his ears and bruises on his cheeks, the doctor reported suspected child abuse and neglect to the Freeborn County Human Services Department.  In response to that report, Tammy Ressler, a Freeborn County child protection worker, visited Radke’s residence on March 2, 2001.  Radke told Ressler that Makaio’s injuries were caused by a fall.  Ressler did no further investigation and took no protective action on behalf of Makaio. 

On March 21, 2001, appellant brought Makaio to the Albert Lea Police Department after he discovered bruising on Makaio’s testicles.  The police reported the suspected abuse to the county the next day.[2]  After the police took photographs, appellant again took Makaio to the Albert Lea Medical Center.  The doctor who examined Makaio at the medical center noted Makaio’s injuries which included abrasions on his head, a bruise on his jaw and his back, and wounds on his thigh and foot which resembled burns.  Based on this examination of Makaio, the doctor also reported suspected abuse to the county. 

In response to these reports, Ressler again visited Makaio at Radke’s home on March 26, 2001.  Radke told Ressler that the mark on Makaio’s foot was caused by “hand-foot-and-mouth disease.”  Ressler apparently accepted this explanation, despite the fact that the doctor who examined Makaio diagnosed his injuries as resembling a burn.  Although Ressler observed Gutierrez present in the home and talked to him briefly, she did not question him about Makaio.  No further investigation was conducted at that time, nor was any protective action undertaken. 

Shortly thereafter, on April 10, 2001, appellant received a letter from Ressler advising him that the Freeborn County Department of Human Services had determined that no abuse had occurred and that child protective services were not necessary.  The following day, appellant again contacted the Albert Lea Police Department to report his concern that Makaio was being abused.  Two days later, Makaio’s guardian ad litem also contacted the police after she visited the Radke home and observed that Makaio had some bruises on his face.  The guardian ad litem took photographs of the bruising and reported to the police that Radke had claimed that the bruising occurred the night before while Makaio was in the bathtub. 

It was not until April 20, 2001, seven days after the guardian ad litem reported suspected abuse to police and nine days after appellant’s report, that the county took any steps to investigate.  On that date, Lisa Frank, a second county child protection worker, visited Makaio at Radke’s home at approximately 11:00 a.m.  Present at the home during the visit were Radke, Makaio, Makaio’s sister, Baker, and Baker’s child.  Frank was aware of the prior reports of abuse, and observed a small bruise on Makaio’s left temple, a similar bruise on his rib cage, a third bruise on his backbone just above his diaper, and a healing injury to his foot.  Frank also observed that Makaio was lethargic and had a runny nose.  After a half-hour visit, Frank departed without instituting any precautionary measures and left Makaio with Radke at the home. 

Later that day, Radke and Baker went out leaving Gutierrez in charge of Makaio, Makaio’s sister, and Baker’s child.  Radke and Baker returned home at about 1:00 a.m.  The next morning, Radke brought Makaio to the medical center where he was pronounced dead at 10:19 a.m.  An autopsy conducted by the Ramsey County Medical Examiner determined that Makiao had died 10 to 12 hours before he was confirmed dead at the hospital.  Makaio had multiple bruises on his face, back, legs, arms, lower extremities and head.  Makaio also had multiple fractures of his ribs, sub-subcutaneous emphysema, a small abrasion on the back of his head, and a laceration on the edge of his rectum.  Gutierrez was subsequently convicted of two counts of first-degree murder by criminal sexual conduct and by child abuse, and one count of second-degree murder.  We affirmed his convictions.  State v. Gutierrez, 667 N.W.2d 426 (Minn. 2003).

Appellant was appointed trustee and next of kin of Makaio by order of the Freeborn County District Court on December 18, 2002.  Shortly thereafter, appellant commenced this wrongful death negligence action against Freeborn County and the county’s child protection workers Frank and Ressler, individually and in their capacities as employees of Freeborn County.  Radke and Gutierrez were also named in the suit, but did not respond to the complaint and are not parties to this appeal.

Pursuant to Minn. R. Civ. P. 12.02(e), respondents Freeborn County, Frank, and Ressler moved to dismiss for failure to state a claim upon which relief can be granted.  On June 2, 2003, the district court granted the respondents’ motion to dismiss.  The court of appeals affirmed the dismissal holding that “[t]he legislature did not expressly or impliedly create a civil cause of action” under CARA.  Radke, 676 N.W.2d at 301.  We granted review to answer the question of whether a cause of action exists for the wrongful death of a child alledgedly caused by the negligent investigation of child abuse or neglect reports by the county and two county child protection workers.     

Review of a case dismissed for failure to state a claim upon which relief can be granted is limited to whether the complaint sets forth a legally sufficient claim for relief.  Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d 550, 553 (Minn. 2003).  An appellate court reviews the claim’s legal sufficiency de novo and, in doing so, the facts of the complaint are accepted as true and all reasonable inferences are construed in favor of the nonmoving party.  Id.  We will not uphold a Rule 12.02(e) dismissal “if it is possible on any evidence which might be produced, consistent with the pleader’s theory, to grant the relief demanded.”  N. States Power Co. v. Franklin, 265 Minn. 391, 395, 122 N.W.2d 26, 29 (1963).

Relying heavily on Cracraft v. City of St. Louis Park, 279 N.W.2d 801 (Minn. 1979), appellant argues that a special relationship existed between the county, its child protection workers, and Makaio because, under the factors established in that case, CARA created a special duty requiring respondents to act with due care in investigating reports of abuse.  Appellant also relies on our decision in Andrade v. Ellefson, 391 N.W.2d 836 (Minn. 1986), in which we applied the Cracraft factors and held that the county owed a special duty to children who were injured in a county-licensed home day care facility.  Respondents, however, argue that no cause of action can be maintained under CARA as it is very similar to the Vulnerable Adults Reporting Act, Minn. Stat. § 626.557 (2004) (VARA), the statute at issue in Hoppe v. Kandiyohi County, 543 N.W.2d 635 (Minn. 1996), where we held that no cause of action could be maintained under VARA.

Generally, a person has no common law duty to prevent a third person from injuring another unless there is some kind of special relationship.  Andrade, 391 N.W.2d at 841; Restatement (Second) of Torts § 315 (1965).  Applying this principle to governmental torts in what is called the “public duty rule” requires that a governmental unit owe the plaintiff a duty different from that owed to the general public in order for the governmental unit to be found liable.  Cracraft, 279 N.W.2d at 806.  In other words, a purely “public duty”—as opposed to a “special duty”—cannot give rise to government tort liability.  Id.  Our decision in Cracraft set out the test for determining whether a special duty exists.  Id. at 806-07.  Under Cracraft, the existence of a statute or ordinance is not sufficient to create a special duty; instead, a special duty of care arises only when “there are additional indicia that the [governmental unit] has undertaken the responsibility of not only protecting itself, but also undertaken the responsibility of protecting a particular class of persons” from the risks associated with a particular harm.  Id. at 806.

The issue before the court in Cracraft was whether a special duty existed on the part of the city under its fire code ordinance.  Id. at 803.  In Cracraft, two children died and one child was injured when a 55-gallon drum of duplicating fluid ignited on the loading dock of a high school.  Id.  The suit against the city brought on behalf of two of the children by their parents alleged negligence because of the failure of a city fire inspector to discover the drum on the loading dock—a violation of the city’s fire ordinance—at the high school during an inspection conducted a few weeks earlier.  Id. at 802. 

In determining whether a special duty existed in Cracraft, we listed four factors to be considered:

(1)  Whether the governmental unit had actual knowledge of the dangerous condition;

(2)  Whether there was reasonable reliance by persons on the governmental unit’s representations and conduct (such reliance must be based on specific actions or representations which cause the persons to forego other alternatives of protecting themselves);

(3)  Whether an ordinance or statute set forth mandatory acts clearly for the protection of a particular class of persons rather than the public as a whole; and

(4)  Whether the governmental unit used due care to avoid increasing the risk of harm.

Id. at 806-07.  In setting out the four factors, we were careful to note that the factors were not exhaustive and that we were not creating a “bright line test.”  Id. at 806.  After analyzing the facts of the case within this framework, we concluded that none of the four factors were present in Cracraft and thus refused “to impose a duty of care merely because an inspection is undertaken.”  Id. at 808.

Subsequently in Andrade v. Ellefson, we applied the same four-factor test and held that the county had a special duty of care to the children injured in the county-licensed home day care facility.  391 N.W.2d at 843.  The underlying statute at issue in Andrade was the Public Welfare Licensing Act, Minn. Stat. §§ 245.781-245.812, 252.28, subd. 2 (1984) (PWLA).  The PWLA required that certain day care facilities obtain annual licenses and, as part of the licensing process, the county sent inspectors to the applicant’s facility.  Andrade, 391 N.W.2d at 838.  Additionally, in response to complaints of overcrowding, the county conducted two unannounced inspections of the day care facility.  Id.  During one of the unannounced inspections, the county inspector found more than the maximum number of children in the facility than the license allowed.  Id.  The county inspector nevertheless continued to recommend approval of the license.  Id. at 838-39.  Two children were eventually injured at the day care facility—one child sustained a skull fracture and developed epilepsy and the other child sustained a subarachnoid hemorrage, an injury consistent with a violent fall or shaking, and an arm fracture.  Id. at 837.

The injured children and their parents filed suit against the county for negligence in supervising, inspecting, and recommending relicensing of the day care facility where the children were injured.  Id.  On appeal from the trial court’s grant of summary judgment for the county, we applied the Cracraft factors and concluded that the county owed a special duty to the children in the county-licensed day care facility.  Andrade, 391 N.W.2d at 841-43.  In doing so, we concluded that the first factor—actual knowledge of a dangerous condition—was “arguably met partially” because there was “some evidence that the county had actual knowledge of overcrowding.”  Id. at 841-43.  We then concluded that the second and fourth factors—reasonable reliance and increasing the risk of harm, respectively—were not met.  Id. at 842-43.  However, we concluded that the third factor—that the ordinance or statute set forth mandatory acts for the protection of a particular class of persons—was “so overwhelmingly dominant” that we had “no difficulty” in finding a “special relation” existed between the county and the children in the home day care facilities it inspected for licensure.  Id. at 843.  We then held that the county owed a special duty to the injured children, emphasizing that “the [Public Welfare Licensing] Act clearly mandates that small children in a licensed day care facility are a particular protected class” and that the class consisted of “uniquely vulnerable persons.”  Id. at 842.  Thus, the statute was “doing more than benefiting the general public * * * as its immediate concern is for the children.”  Id. at 842.      

Ten years later, in Hoppe v. Kandiyohi County we were presented with the question of whether VARA, could form the basis for a civil cause of action in negligence.  543 N.W.2d at 635.  In Hoppe, the guardian of an elderly woman brought an action against Kandiyohi County for its negligent investigation and intervention after the county received reports of financial abuse of Hoppe by Paul Bengston, a former bank employee with power of attorney.  Id. at 637.  The county waited six months after the initial report of suspected abuse was filed before interviewing Hoppe and determining her competency.  Id.  In the meantime, Bengston continued writing checks to himself from Hoppe’s account.  Id.  Hoppe’s guardian sued, alleging that as a result of the county’s failure to perform its investigatory and intervention duties as required by VARA, Hoppe sustained monetary damages for the amounts converted from her bank account.  Id. 

In Hoppe, without directly applying the Cracraft factors, we distinguished Andrade by stating: 

Implicit in [our holding in Andrade] was our recognition that the licensing procedure entails a detailed inspection and evaluation of an applicant facility and an ultimate determination of fitness to operate this service, i.e., that the licensing requirements were adopted to “ensure a safe environment for children” in accordance with Minn. Stat. § 245.802, subd. 4 (1984), and our concern that the abuse of which the children complained occurred in the facility itself. 

Hoppe, 543 N.W.2d at 638.  We then concluded that no cause of action could be maintained because the legislature did not “explicitly or by implication identif[y] a civil cause of action for alleged negligent investigation or intervention” in VARA.  Id. 

            In the instant case, the court of appeals acknowledged that the “law is not clear cut,” but concluded that, given the similarity between CARA and VARA and our holding in Hoppe that no cause of action could be maintained under VARA, no cause of action could be maintained under CARA.[3]  Radke, 676 N.W.2d at 300.  The statutes at issue in Hoppe and in the present case, VARA and CARA respectively, while not identical, are similar.  Compare Minn. Stat. § 626.557 (2004) with Minn. Stat. § 626.556 (2004).  Here, however, we also have considerations which closely resemble the considerations we relied on in Andrade when we found a cause of action did exist.  See Andrade, 391 N.W.2d at 843.  For example, like the licensing statute at issue in Andrade, CARA was adopted to ensure a safe environment for children.  Moreover, as was the case in Andrade, the abuse complained of in the current case occurred in a home that was the subject of the investigation by the county.  Therefore, insofar as we relied on these distinctions between Hoppe and Andrade in concluding that there was no cause of action in Hoppe, the same reasoning does not distinguish Andrade from the present case.  Further, the question of whether a statute creates a special duty is answered on a case-by-case basis by applying the Cracraft factors to the facts of the case.  See Cracraft, 279 N.W.2d at 807 (stating “[a]pplying these factors to this case, we find no evidence in the record indicating that a duty was assumed or a special duty was created.”); Andrade, 391 N.W.2d at 841. 

Given this background and our precedent, we turn then to applying the Cracraft factors to discern if the county owed a special duty under CARA.  We first note that three of the Cracraft factors require an analysis of the facts of the case:  whether the county had actual knowledge of the dangerous condition (factor one); whether there was reasonable reliance on the county’s representation (factor two); and whether the county increased the risk of harm (factor four).  To the extent that the Cracraft analysis relies on the particular facts of the case, our analysis in this appeal from a 12.02(e) dismissal is limited to the facts set forth in the complaint.  See Bodah, 663 N.W.2d at 553.   In contrast, factor three—mandatory acts for the protection of a particular class—involves an analysis of the statute alone.  Thus, we will begin our discussion with this factor.   

The third factor used to determine if a special duty exists is whether the statute sets forth mandatory acts that are for the protection of a particular class of persons and not the public in general.  CARA requires that certain persons, including medical professionals, clergy, and law enforcement personnel, who know or have reason to believe that child abuse or neglect is occurring, report such information immediately.  Minn. Stat. § 626.556, subd. 3(a).  The statute also facilitates voluntary reporting from any other person suspecting child abuse or neglect.  Id. at subd. 3(b).  Reports made under CARA must be specific and contain “sufficient content to identify the child, any person believed to be responsible for the abuse or neglect of the child if the person is known, the nature and extent of the abuse or neglect and the name and address of the reporter.”  Id. at subd. 7.

Once a report is received, CARA mandates that the proper authority investigate the report.  Id. at subd. 10(a).  According to the statute, when the local welfare agency receives a report, “the local welfare agency shall immediately conduct an assessment * * * and offer protective social services for purposes of preventing further abuses, safeguarding and enhancing the welfare of the abused or neglected minor, and preserving family life whenever possible.”  Id. (emphasis added).  The statute further provides:  “When necessary the local welfare agency shall seek authority to remove the child from the custody of a parent, guardian, or adult with whom the child is living” and the “local welfare agency shall collect available and relevant information to ascertain whether maltreatment occurred and whether protective services are needed.”  Id. at subd. 10(a), (h) (emphasis added).  In addition, the statute states that “[e]ach agency shall prepare a separate report of the results of its investigation.”  Id. at subd. 10(a) (emphasis added).      

The statute clearly and repeatedly requires the performance of mandatory acts.  These mandatory acts prescribed by the statute are for the protection of a particular class of persons—children who are identified as abused or neglected.  In fact, the express public policy set forth in the statute is “to protect children whose health or welfare may be jeopardized through physical abuse, neglect, or sexual abuse.” Id. at subd. 1.  The statute further emphasizes that

it is the policy of this state to require the reporting of neglect, physical or sexual abuse of children in the home, school, and community settings; to provide for the voluntary reporting of abuse or neglect of children; to require the assessment and investigation of the reports; and to provide protective and counseling services in appropriate cases.

Id.  Based on these declared public policy goals, we conclude that the acts mandated in CARA are not for the protection of the public or even children in general, but are mandated for the protection of a particular class of persons—children who are identified in suspected abuse or neglect reports received by the county.[4]  Like the class of persons in Andrade, the children protected by CARA are “uniquely vulnerable persons.”  These children have been identified by suspected child abuse or neglect reports.  They are especially vulnerable because they are alleged to have suffered abuse or neglect in the privacy of their homes, often at the hands of a parent or other family member, and cannot protect themselves.  Therefore, we hold that the third factor clearly is met in this case. 

            As noted above, we have only the facts in the complaint before us and are thus limited in our analysis of the remaining Cracraft factors.  We accept those facts as true and draw all reasonable inferences in favor of the nonmoving party—here, appellant.  See Bodah, 663 N.W.2d at 553.  Within this constricted framework, we offer the following observations regarding the remaining Cracraft factors. 

The first Cracraft factor requires that the county have actual knowledge of the dangerous condition.  Cracraft, 279 N.W.2d at 806.  According to the complaint, the county received numerous reports of suspected abuse of Makaio from appellant, the police, doctors, and Makaio’s guardian ad litem.  Accordingly, because we draw all reasonable inferences in favor of the nonmoving party on appeal from a motion to dismiss, actual knowledge on the part of the county is established. 

            The second Cracraft factor requires reasonable reliance on the county’s representations and conduct.  Cracraft, 279 N.W.2d at 806-07.  Such reliance must be based on specific actions or representations which cause the person to forego other alternatives of protection.  Id. at 807.  Given the limited facts before us, we cannot conclusively say whether this factor is met.  However, given the repeated reports to the county detailed in the complaint, we find it difficult to speculate as to what more appellant could have done. 

Finally, the fourth Cracraft factor requires an analysis of whether the county has increased the risk of harm.  The limited facts before us suggest that this factor is not established.  Such a conclusion is not a bar, however, from this case going forward.  As we clearly stated in Andrade, all four factors need not necessarily be met for a special duty to exist.  391 N.W.2d at 841; see also Cracraft, 279 N.W.2d at 806 (noting that the factors listed do not create a “bright line” test and are not exhaustive).  Here, the third factor is “overwhelmingly dominant.” See Andrade, 391 N.W.2d at 843 (stating “this third factor is so overwhelmingly dominant that we have no difficulty in finding a ‘special relation’ exists between the county and the small children in the day care homes that it inspects for licensure.”).  Accordingly, we hold that based on the application of the Cracraft factors to the facts of this case, respondents owed a special duty to Makaio once they received reports identifying him as a suspected victim of abuse.   

Our holding embraces the reasoning set forth in Cracraft and Andrade and conforms with the majority of other jurisdictions recognizing a duty on the part of social service agencies to investigate reports of child abuse and neglect.[5]  From the clear language of CARA, it is manifest that the legislature intended to provide safety and protection for children in abusive and neglectful situations and for the county social services department and its child protection workers to act immediately when they receive specific reports of abuse or neglect.  See Minn. Stat. § 626.556, subd. 10(a) (“[T]he local welfare agency shall immediately conduct an assessment * * *.”).  Given this express intent, it is incongruous to conclude that the legislature intended to impose criminal penalties on those persons who fail to report as mandated under the statute, but intended that there be no duty on the part of the county welfare department or its employees to investigate or act on the reports.  See Minn. Stat. § 626.556, subd. 6 (providing for misdemeanor, gross misdemeanor, or felony sanctions for failure to report under the statute).  We believe that the statute, taken as a whole, leads to the inescapable conclusion that respondent county and its employees had a duty to act.[6]  This conclusion is further supported by CARA’s statutory provision granting immunity to “person[s] with responsibility for performing duties” under the statute if the person is “acting in good faith and exercising due care.” See Minn. Stat. § 626.556, subd. 4(b).  This language suggests that the subject of the statute had a duty to act.   

We recognize that our holding here overrules our decision in Hoppe.  Nonetheless, given the vitality of Cracraft and Andrade, the facts of this case have made it clear that it is impossible to harmonize Hoppe with Cracraft and Andrade; therefore Hoppe cannot stand.  To decide otherwise would eviscerate the legal principles regarding special duties set forth in Cracraft and Andrade.   

Accordingly, we hold that a cause of action can be maintained for negligence in the investigation of child abuse and neglect reports as required under CARA.  The court of appeals’ decision affirming the dismissal of appellant’s complaint is reversed and the case is remanded to the district court for further proceedings in accordance with this opinion. 

Reversed and remanded.

——————————————————————————–

[1]           Because this appeal arises in the context of a Rule 12.02(e) motion, all of the facts are taken from the complaint.  See Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d 550, 553 (Minn. 2003).

[2]           CARA requires that the “police department or the county sheriff, upon receiving a report * * * immediately notify the local welfare agency or agency responsible for assessing or investigating the report, orally and in writing.”  Minn. Stat. § 626.556, subd. 3(a).

[3]           While not central to its holding, the court of appeals attempted to reconcile Andrade and Hoppe by applying immunity law and stating that “it appears that the Minnesota Supreme Court in Andrade looked at the day care checklist as ministerial”—i.e., no immunity—“but in Hoppe found the decision-making to be discretionary”—i.e., the county was immune.  Radke, 676 N.W.2d at 300.  This distinction is incorrect as we in Andrade stated that the county was immune, but that the county had waived immunity.  391 N.W.2d at 843.  Further, the distinction noted by the court of appeals relates to the question of governmental immunity and not the existence of a special duty.  Although immunity may be a relevant factor in determining whether appellant can ultimately recover, it is not currently before us.  If anything, the grant of immunity under the statute for actions done in “good faith,” see Minn. Stat. § 626.556, subd. 4, suggests that the subject of the statute had a duty to act in the first place.

[4]           Other courts considering the issue of whether a child protection statute creates a public duty or special duty have also concluded that such statutes are intended to protect a specific class of children, i.e. those suspected of suffering abuse or neglect.  See, e.g., Horridge v. St. Mary’s County Dep’t of Soc. Servs.,  854 A.2d 1232, 1244 (Md. 2004) (“Clearly, the essential purpose of the statutory duties created by [the Maryland child abuse prevention statute] and the implementing regulations of the Department of Human Resources was to protect a specific class of children * * *.”); Brodie v. Summit County Children Servs. Bd., 554 N.E.2d 1301, 1308 (Ohio 1990) (“[T]he action required by the statute is not directed at or designed to protect the public at large, but intended to protect a specific child who is reported as abused or neglected.”); Mammo v. State, 675 P.2d 1347, 1351 (Ariz. Ct. App. 1983) (concluding that the Arizona child protection statute “is quite specific and sets forth duties on the part of protective services workers which are clearly for the protection of threatened individuals”). 

[5]           See Mammo, 675 P.2d at 1350-51; Dep’t of Health and Rehab. Servs. v. Yamuni, 529 So.2d 258, 261-62 (Fla. 1988); Horridge, 854 A.2d at 1238-40; Brodie, 554 N.E.2d at 1308-09; Jensen v. Anderson County Dep’t of Soc. Servs., 403 S.E.2d 615, 619 (S.C. 1991); Owens v. Garfield, 784 P.2d 1187, 1191-92 (Utah 1989); Sabia v. State, 669 A.2d 1187, 1191-92 (Vt. 1995); Yonker v. Wash., 930 P.2d 958, 963 (Wash. Ct. App. 1997);  see also Susan Abbott, Note, Liability of the State and its Employees for the Negligent Investigation of Child Abuse Reports, 10 Alaska L. Rev. 401 (1993); Jason This, Casenote, Brodie v. Summit County Children Services Board:  A Statutory Duty Exception to the Public Duty Rule for Children Service Agencies, 17 Ohio N.U. L. Rev. 711 (1991).

[6]           We are aware that this case is currently before us on a Rule 12.02(e) motion to dismiss, that discovery will continue on remand, and that the county and its employees may raise defenses of immunity.  Nonetheless, as pleaded, we have significant concerns about the actions of the county and its employees and whether they protected the child as required under the statute.

RLI Insurance Company,
Respondent,

vs.

Richard A. Pike, as trustee for
the heirs and next of kin of Lowell Pike,
Appellant,

Barbara L. Pluto, as personal representative
of the estate of John L. Pluto and Aire Austin, Inc.,
Respondent.

Filed December 3, 1996
Affirmed
Willis, Judge

Dodge County District Court
File No. C495288

Byron M. Peterson, Foster, Waldeck & Lind, Ltd., 2300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN, 55402 (for Respondent RLI Insurance Company)

Steven T. Rizzi, Jr., Craig M. Byram, 105 East Oakland Avenue, P.O. Box 366, Austin, MN 55912 (for Appellant)

Terence L. Meany, Leighton, Meany, Cotter & Enger, Ltd., 601 North Main Street, Austin, MN 55912 (for Respondent Pluto)

Charles T. Hvass, Jr., Hvass, Weisman & King, Chartered, 100 South Fifth Street, Suite 450, Minneapolis, MN 55402 (for Amicus Curiae Minnesota Trial Lawyers Association)

Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Kalitowski, Judge.

S Y L L A B U S

1.  An aircraft liability insurance policy that excludes coverage for bodily injury to or the death of passengers who are also named insureds does not violate Minnesota Statutes sections 60A.081 and 360.92.

2.  An aircraft liability policy that excludes coverage for bodily injury to or the death of passengers who are also named insureds is not contrary to Minnesota public policy.

O P I N I O N

WILLIS, Judge

Richard Pike, as trustee for the heirs and next of kin of Lowell Pike, appeals from a grant of summary judgment in favor of respondent RLI Insurance Company. Appellant argues that liability coverage for Lowell Pike’s death existed under the aircraft liability insurance policy issued by respondent because the policy’s exclusion of coverage for bodily injury to or death of passengers who are also named insureds violates Minnesota Statutes sections 60A.081 and 360.92 and Minnesota public policy. We affirm.

FACTS

John Pluto and Lowell Pike owned a Piper PA24-250 airplane through Aire Austin, Inc. (Aire Austin), a corporation of which they were the sole shareholders. Aire Austin bought a liability insurance policy for the airplane from respondent RLI Insurance Company. The named insureds on the policy were John Pluto, Lowell Pike, and Aire Austin.

On September 29, 1993, the Piper PA24-250 plane crashed in Akron, Ohio, with John Pluto, Lowell Pike, and Robert E. McLaren, Jr., on board. All three died in the crash. Federal Aviation Administration (FAA) investigators believe that John Pluto was piloting the plane at the time of the crash, while Lowell Pike and Robert E. McLaren, Jr., were passengers. For the purpose of this litigation, the parties stipulate that Lowell Pike was not the pilot. The estate of Robert E. McLaren, Jr., sought and received benefits for his death under the liability policy at issue.

Appellant asserted a wrongful death action against Aire Austin and the estate of John Pluto. Aire Austin and the estate of John Pluto seek coverage for Lowell Pike’s death under the liability policy issued by respondent. Respondent’s liability insurance policy provides, in relevant part, that the coverage

protects you or any permissive user for your or their legal responsibility for both bodily injury and property damage. It will also include protection for your or their legal responsibility for bodily injury to passengers in the insured aircraft if you have chosen to buy that additional coverage.

The additional coverage for bodily injury to passengers was chosen here. Appellant sought coverage for Lowell Pike’s death as a “passenger,” which the insurance policy defines as “any person in the aircraft, including crew, while they are in, on, or getting into or out of the aircraft.”

Respondent denied coverage for Lowell Pike’s death because he was a named insured and the policy is not designed to provide first-person coverage to named insureds. Respondent relied on exclusions in sections 1 and 5 of the policy. Section 1 captioned “Liability Protection: What Is Not Insured In This Section,” states “[T]he policy does not insure for any bodily injury to you.” “You” is defined by section 5:

You, Your and Yours mean the person or organizations who are named in Item 1 on your Insurance Coverage Schedule. These words also include the spouse of any person named in Item 1 if that spouse resides in the same household as the person. If you are a flying club and Item 6 of your Insurance Coverage Schedule so indicates, all of the members in good standing of the flying club and their spouses are included in the definition of you, your and yours.

This action followed to determine the coverage issue. On cross-motions for summary judgment, the district court determined that respondent does not have a duty under the policy to defend or indemnify Aire Austin and the estate of John Pluto against appellant’s claims. This appeal followed.

ISSUES

1. Did the district court err in concluding that an aircraft liability insurance policy that excludes coverage for bodily injury to or the death of passengers who are also named insureds does not violate Minnesota Statutes sections 60A.081 and 360.92?

2. Did the district court err in concluding that an aircraft liability policy that excludes coverage for bodily injury to or the death of passengers who are also named insureds is not contrary to Minnesota public policy?

ANALYSIS

The interpretation and construction of an insurance policy are issues of law, which this court reviews de novo. Dakhue Landfill, Inc. v. Employers Ins. of Wausau, 508 N.W.2d 798, 802 (Minn. App. 1993). Summary judgment is appropriate if the record shows “that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03. The facts here were stipulated to by the parties. Thus, this court must determine whether the district court erred in applying the law. See State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).

Appellant argues the district court erred in its determination that the liability policy issued by respondent excluded from coverage the death of Lowell Pike, a passenger in the aircraft. Appellant claims such an exclusion is void because it violates Minnesota Statutes sections 60A.081 and 360.92 (1994) and Minnesota public policy. We disagree. 1. Violation of Minn. Stat. §§ 60A.081, 360.92.

It is a well-settled principle of insurance law that parties are free to contract, “so long as coverage required by law is not omitted and policy provisions do not contravene applicable statutes.” American Family Mut. Ins. Co. v. Ryan, 330 N.W.2d 113, 115 (Minn. 1983). Any insurance policy provision that is contrary to statutory requirements is ineffective. Shank v. Fidelity Mut. Life Ins. Co., 221 Minn. 124, 128, 21 N.W.2d 235, 237 (1945).

“It is axiomatic that the parties to an insurance contract * * * cannot make a contract which is prohibited by law or contrary to public policy; and where there is a conflict between the law or statutory provisions on the one hand and the provisions of an insurance policy on the other, the former must prevail.”

Id. at 130, 21 N.W.2d at 238 (quoting 29 Am. Jur. Insurance § 190). 

By enacting sections 60A.081 and 360.92, the Minnesota legislature mandated that all liability policies covering Minnesota aircraft provide coverage for bodily injury to or the death of passengers and nonpassengers. Section 60A.081 provides, in relevant part:

[N]o policy of insurance issued or delivered in this state covering an aircraft equipped with passenger seats and covering liability hazards shall be issued excluding coverage for injury to or death of passengers or nonpassengers * * * .

Minn. Stat. § 60A.081, subd. 2 (emphasis added). Moreover,

[i]t is a misdemeanor for an owner to operate or permit to be operated an aircraft registered or based within the state of Minnesota without liability insurance protecting passengers and third persons for both personal injury and property damage resulting from the operation of the aircraft * * * .

Minn. Stat. § 360.92 (emphasis added).

Liability insurance exists to protect named insureds from third-party claims. It is defined as “[t]hat type of insurance protection which indemnifies one from liability to third persons as contrasted with insurance coverage for losses sustained by the insured.” Black’s Law Dictionary 915 (6th ed. 1990); see also Robert E. Keeton and Alan I. Widiss, Insurance Law: A Guide To Fundamental Principles, Legal Doctrines and Commercial Practices 376 (1988) (stating that liability insurance was initially developed to provide insured with indemnification for damages for which insured was responsible as result of tort liability to third person).

Respondent’s policy is liability insurance, providing protection to named insureds against claims by third parties–passengers and nonpassengers–harmed as a result of the operation of the aircraft. Lowell Pike was not a third party; he was a named insured on the liability policy issued by respondent.

By their plain language sections 68.081 and 360.92 relate to liability insurance requirements. In the absence of clear language to the contrary, we conclude that the statutes do not require that third-party liability coverage be converted to first-party coverage where a named insured is a passenger in an airplane. The statutes require coverage for injury to or the death of passengers and nonpassengers. But they do not mandate coverage for “all” passengers or define “passengers” to include named insureds. We will not read those terms into sections 60A.081 and 360.92, because this court cannot supply that which the legislature has omitted or overlooked. See Northland Country Club v. Commissioner of Taxation, 308 Minn. 265, 271, 241 N.W.2d 806, 809 (1976).

Section 60A.081 describes four specific exclusions or conditions, relating to pilot certification and experience, and certification and limitations on the use of aircraft, that are not prohibited in aircraft liability insurance policies. See Minn. Stat. § 60A.081, subd. 1. Appellant argues that because exclusion of named insureds is not identified in the statute as a permissible exclusion, the Minnesota legislature did not intend to permit such an exclusion. We disagree. The four areas identified in subdivision 1 cannot be read as an exclusive list of permitted exclusions because the list omits obviously acceptable exclusions, such as an exclusion for intentional acts.

There also is statutory evidence that the Minnesota legislature did not intend to mandate that third-party liability insurance provide coverage to first-party, named insureds. Minn. Stat. § 360.59, subd. 10 (1994), for example, provides that

nothing in this subdivision shall be construed to require an owner of aircraft to maintain passenger seat liability coverage on aircraft for which an experimental certificate has been issued by the Administrator of the Federal Aviation Administration * * * whereunder persons operating the aircraft are prohibited from carrying passengers in the aircraft.

Section 360.59, subdivision 10, evidences an absence of legislative concern that aircraft owners provide insurance coverage to themselves for their own injuries.

Respondent’s policy exclusion of named insureds does not violate sections 60A.081 and 360.92.

2. Violation of Public Policy.

“When the legislature has spoken on the form [that] a policy of insurance must take, such enactments declare the public policy of the state.” Shank, 221 Minn. at 130, 21 N.W.2d at 238. “[W]hen a statute is founded [on] public policy, those to whom it applies should not be permitted to waive its provisions.” Id. at 131, 21 N.W.2d at 238.

The Minnesota legislature, through sections 60A.081 and 360.92, requires an aircraft owner to provide liability insurance coverage for injury to or the death of passengers in the aircraft. However, we conclude that the statutes do not require that liability coverage be provided for named insureds on the liability policy, even if they are passengers. Thus, the liability policy issued by respondent, which excludes named insureds from coverage, does not violate sections 60A.081 and 360.92 and thus does not violate Minnesota public policy.

D E C I S I O N

The district court properly concluded that the liability policy issued by respondent excluded from coverage the death of Lowell Pike. The policy’s exclusion for the death of passengers who are also named insureds does not violate Minnesota Statutes sections 60A.081 and 360.92 or public policy.

Affirmed.
If you have suffered the loss of a loved one, please contact one of our wrongful death lawyers for a free, no obligation consultation.  We have locations state wide and offer free in home visits.  Minneapolis Area 612-767-2009, St. Paul 651-789-0059, Southern Suburbs 952-767-0121, Northern Suburbs 763-231-0383.  If you are outside the Metro Area, call Toll Free 1-866-777-2557.   Click here to e-mail.

Minnesota Wrongful Death Airplane Crash - Aircraft Liability Insurance Policy

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-99-1543

Rita Strickland, Special Administrator for the
Estate of Margaret Louise Peterson, Deceased,

and Trustee for Next of Kin of

Margaret Louise Peterson, Deceased,
Appellant,

vs.

Vencor, Inc., and Ventas, Inc.,
Foreign Corporations,
Respondents.

Filed May 16, 2000

Affirmed

Peterson, Judge

Olmsted County District Court

File No. C599188

David L. Weidt, Providence Building, 332 West Superior Street, Suite 421, P.O. Box 630, Duluth, MN 55801 (for appellant)

Kristen N. Anderson, Sarah L. Brew, Greene Espel, P.L.L.P., 333 South Seventh Street, Suite 1700, Minneapolis, MN 55402 (for respondents)

            Considered and decided by Peterson, Presiding Judge, Anderson, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            Appellant Rita Strickland challenges the dismissal of her breach-of-contract claims for failure to state a claim on which relief can be granted.  We affirm.

FACTS
Margaret Louise Peterson, a resident of Woodside Convalescent Center, died on December 28, 1996, 12 days after falling at the center.  Rita Strickland, Peterson’s daughter, was appointed to serve as special administrator for Peterson’s estate and as the trustee to maintain an action for the claims asserted against respondents, Ventas, Inc., and Vencor, Inc.,[1] which owned and operated Woodside.  Strickland asserted claims for wrongful death, breach of contract for services to provide personal care, and breach of Medicare and Medicaid contracts. 

Ventas moved to dismiss under Minn. R. Civ. P. 12.02(e) for failure to state a claim upon which relief can be granted.  The district court granted Ventas’s motion to dismiss both breach-of-contract claims.  The court concluded that Strickland’s breach-of-contract claim sounded in tort rather than contract and therefore did not survive Peterson’s death, and that Minnesota law did not provide a private right of action to enforce or recover on Medicare and Medicaid contracts.  The district court granted Strickland’s later motion to dismiss her wrongful-death claim with prejudice and entered final judgment on that claim. 

D E C I S I O N

            When reviewing an action dismissed for failure to state a claim on which relief can be granted, this court’s review is de novo and is limited to whether the complaint sets forth a legally sufficient claim for relief.  Elzie v. Commissioner of Pub. Safety, 298 N.W.2d 29, 32 (Minn. 1980); Sather v. Woodland Liquors, Inc., 597 N.W.2d 295, 297 (Minn. App. 1999).  It is immaterial whether the facts alleged can be proved.  Elzie, 298 N.W.2d at 32.  A claim will be dismissed only if it is certain that no facts exist, which could be introduced consistent with the pleading, to support granting the demanded relief.  Northern States Power Co. v. Franklin, 265 Minn. 391, 395, 122 N.W.2d 26, 29 (1963).  This court views all assumptions and inferences in favor of the party against whom the dismissal is sought.  Id. at 396, 122 N.W.2d at 30.

1.  Breach of Contract Claim

            Strickland argues that the district court erred by holding that Minn. Stat. § 573.01 (1996), which provides that a cause of action arising out of an injury to the person dies with the person, precludes her claim for restitution based on breach of contract.  Strickland sought restitution of the money paid by Peterson or on her behalf to Ventas, arguing that Ventas breached its express or implied contract with Peterson by failing to provide care in accordance with standards imposed by federal and state regulations, resulting in great pain and physical suffering, severe mental anguish and emotional distress, and death. The district court found that Strickland was attempting to recharacterize the professional-negligence theory in the wrongful-death claim as a breach-of-contract claim and that the provision of substandard care at a nursing home sounded more in tort than contract.  The court determined that the substance of the claim was personal injury to Peterson and concluded that under Minn. Stat. § 573.01, the claim did not survive Peterson’s death.

            “A cause of action arising out of an injury to the person dies with the person,” but a contract action survives to the personal representative of the decedent.  Minn. Stat. § 573.01.  The statute “provides for the abatement of causes of action for personal injuries even when they constitute breaches of contract.”  Webber v. St. Paul City Ry. Co., 97 F. 140, 145 (8th Cir. 1899) (estate of decedent injured in streetcar accident could not evade survival statute by alleging cause of action for breach of contract to transport decedent safely).  The survival statute does not define “injury to the person,” but whether a claim survives lies “in the substance, not the form, of the cause of action.”  Beaudry v. State Farm Mut. Auto. Ins. Co., 518 N.W.2d 11, 13 (Minn. 1994) (citing Webber, 97 F. at 145). 

            Applying this test, we note that Strickland’s complaint refers to Ventas’s “failing to provide personal care to Margaret Peterson in accordance with standards of care imposed by federal and state regulations,” causing Peterson “to suffer great pain and physical suffering, severe mental anguish and/or emotional distress and death.”  Strickland also asserts that Ventas “knew or should have foreseen the breach of this contract would result in severe injuries and death to Margaret Peterson.”

            The fact that Strickland seeks restitution of funds paid to Ventas under a contract theory does not mean that the contract claim survives Peterson’s death.  Where plaintiffs argued in support of an underinsured motorist (UIM) claim that they were not seeking damages for pain and suffering, but rather enforcement of contractual rights, the supreme court viewed the argument as elevating form over substance and held that the UIM claim abated with the death of the insured.  Beaudry, 518 N.W.2d at 14.  Strickland argues that this analysis is inapplicable because it involved a contract claim for UIM benefits where the primary cause of the damages sought was necessarily injury the insured suffered in an automobile accident.  Strickland contends that the mere mention of Peterson’s physical suffering in the complaint does not transform her contract claim into a personal-injury claim any more than the characterization of the UIM claim in Beaudry, which was based on a physical injury, transformed it into a contract claim. 

            But Strickland’s complaint does not merely mention Peterson’s physical suffering.  The complaint first alleges that Ventas had a contract to provide care for Peterson in accordance with standards of care imposed by federal and state regulations and accepted standards of medical practice.  The complaint then claims that Ventas breached its contract to provide care that met these standards, and that because of this breach, Peterson suffered “great pain and physical suffering.”  The essence of the complaint is that Ventas had a duty to provide care that met certain standards, Ventas breached this duty, and as a result of this breach, Peterson suffered personal injury.  The only basis set forth in the complaint to conclude that Ventas breached its contract is that Peterson was injured. 

            Although Strickland seeks restitution, the chief damage she alleges is Peterson’s personal injuries.  We, therefore, agree with the district court that the substance of the cause of action is an injury to the person, and the claim abated at Peterson’s death.  The district court did not err by dismissing this count of the complaint for failure to state a claim upon which relief can be granted.

2.  Breach of Medicare/Medicaid Contracts

            Strickland also challenges the district court’s conclusion that Minn. Stat. § 256B.042 (1996) does not provide a private right of action to recover for a nursing home’s breach of medical assistance contracts.  Strickland alleges that Peterson was an intended third-party beneficiary of Medicare and/or Medicaid contracts between Woodside and the State of Minnesota and/or the Secretary of Health and Human Services, and that Ventas “knew or should have foreseen the breach of these contracts would result in severe injuries and death to Margaret Peterson.”  Strickland claims that she, the State of Minnesota, and the United States Secretary of Human Services are entitled to restitution of the money paid to Ventas by Peterson or on her behalf.

            We conclude that, like Stricklund’s direct contract action, the chief damage alleged in the third-party beneficiary claim is the injuries to Peterson.  Therefore, the substance of the action is an injury to the person, and the cause of action abated at Peterson’s death. Accordingly, we do not reach the issue of whether section 256B.042 creates a private cause of action to recover for an institution’s breach of medical assistance contracts.  See Myers through Myers v. Price, 463 N.W.2d 773, 775 (Minn. App. 1990) (court of appeals will affirm summary judgment if it can be sustained on any grounds), review denied (Minn. Feb. 4, 1991).

            Affirmed.

——————————————————————————–

*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art VI, § 10.

[1]  Vencor, Inc. filed for bankruptcy and all actions against it, including the portion of this appeal relating to Vencor, have been stayed.

If you have suffered the loss of a loved one, please contact one of our wrongful death lawyers for a free, no obligation consultation.  We have locations statewide and offer free in home visits.  Minneapolis Area 612-767-2009, St. Paul 651-789-0059, Southern Suburbs 952-767-0121, Northern Suburbs 763-231-0383.  If you are outside the Metro Area, call Toll Free 1-866-777-2557. 

Minnesota Nursing Home Abuse

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS

C8-99-2141
 

Susan Elfstrom, as Trustee for the Next of Kin of
Bruce Leo Tarasar, Jr.,
Appellant,

vs.

St. Paul Guardian Insurance Company, a/k/a The St. Paul,
Respondent,

Robert Knox, et al.,
Respondents,

and
 
Robert Knox, et al.,
Defendants and Cross-Plaintiffs,
 

vs.

St. Paul Guardian Insurance Company, a/k/a The St. Paul,

Defendant and Cross-Defendant.

Filed July 11, 2000
Affirmed

Crippen, Judge
 

Hennepin County District Court

File No. 9817621

Brad C. Eggen, Law Offices of Brad C. Eggen, 1100 Pillsbury Center, 200 South Sixth Street, Minneapolis, MN 55402 (for appellant)

Bethany K. Culp, Oppenheimer Wolff & Donnelly L.L.P., Plaza VII, Suite 3400, 45 South Seventh Street, Minneapolis, MN 55402-1609 (for respondent St. Paul Guardian)

Dennis Smith, Esquire, 100 Roseville Professional Center, 2233 Hamline Avenue North, Roseville, MN 55113 (for respondents Knox, et al.)

            Considered and decided by Crippen, Presiding Judge, Amundson, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N
 

CRIPPEN, Judge

            Challenging a summary judgment dismissing her suit for a declaration of insurance coverage, appellant Susan Elfstrom, the trustee of the estate of a deceased child, claims (a) that respondent St. Paul Guardian Insurance Company, insurer of the child’s custodians, provided coverage for the death of the child on the premises where the child was receiving custodial care, and (b) that she should have been permitted to amend her pleadings to state a claim for judgment against the agent who obtained the insurance policies for the child’s custodians.  Because both assertions are flawed as a matter of law, we affirm.

FACTS
 

            A five-year old boy who was placed in the long-term custody of his grandparents, Robert and Mary Knox, drowned in their swimming pool.  Through their agent, James Higgens, the Knoxes had purchased a combination auto and homeowners “PAK II” insurance policy from respondent St. Paul Guardian Insurance Company.  The policy’s “Homeowners Liability Protection” section stated that it did not cover personal injuries or property damage suffered by the insureds or “family members or any other person regularly residing at an insured location.”  The policy defined “family” as “any relative permanently living with our insured and anyone under 21 living in the household and cared for by the insured or an insured relative.” 

In the “Major Exclusions” section of its policy, St. Paul Guardian stated that it did not cover the legal liability of parties who were in the care of the insureds because of “child care services” provided by an insured, an employee of the insureds, or anyone acting on behalf of the insureds.  But it noted that this exclusion did not apply to “occasional child care services provided” by the insureds, nor did it apply to childcare services provided by an insured to a relative.

            Appellant, the trustee for the child’s next-of-kin, instituted a wrongful death action against the grandparents and their insurer.  The trustee then instituted a declaratory judgment action against St. Paul Guardian, seeking a holding that the insurer must cover and indemnify the grandparents for the claims stated against them.  The trustee and the grandparents then entered into a Miller-Shugart stipulation stating that the grandparents had tendered defense of the wrongful death suit to their insurance agency and St. Paul Guardian, and that both had refused liability coverage or indemnification.[1]  Appellant sought and obtained an amendment of its declaratory judgment action to reflect the Miller-Shugart agreement.  She also moved to amend the original complaint to add the claim that Higgins Insurance Agency and Jim Higgens were liable for the settled liability of the grandparents.

The trial court dismissed appellant’s declaratory judgment suit, determining that the child was a family member, that liability coverage did not extend to a family member, and that the child’s status was not affected by the “child care services” exclusion or its exceptions.  The trial court denied the trustee’s motion to amend its complaint to state a declaratory judgment claim against the agent, concluding that the family of the deceased child did not demonstrate a triable claim against the agent.

D E C I S I O N
 

1.         The trial court determined that appellant’s attempt to add claims against Higgins and the Higgens Insurance Company failed to present a claim that could survive summary judgment.  See CPJ Enters., Inc. v. Gernander, 521 N.W.2d 622, 625 (Minn. App. 1994) (motions to amend complaints “properly may be denied when the additional claim could not survive summary judgment”) (citations omitted).  More specifically, the court determined that appellant had no claim under the March 1999 Miller-Shugart agreement.  We review de novo the decision that the claim cannot withstand summary judgment where the determination is premised on an application of the law to undisputed facts.  See Commercial Union Ins. Co. v. Minnesota Sch. Bd. Ass’n, 600 N.W.2d 475, 478 (Minn. App. 1999), review denied (Minn. Dec. 21, 1999).

            In her assertion of a cause against the insurance agent in this declaratory judgment matter, appellant seeks enforcement of the Miller-Shugart settlement.  We have previously indicated that this claim cannot succeed against an insurance agent.  See, e.g., St. Michel v. Burns & Wilcox Ltd., 433 N.W.2d 130, 135 (Minn. App. 1988), review denied (Minn. Mar. 17, 1989) (“[d]ifferent questions are involved in applying the same rule of law to a case which does not involve existing contractual responsibilities between an insured and insurer”).

            Appellant contends that the assertion of his claims is permitted by Peterson v. Brown, 457 N.W.2d 745 (Minn. App. 1990), review denied (Minn. Aug. 23, 1990), which recognizes that similar claims may be lawfully assigned by an insured to an injured person. But appellant’s proposed amended pleadings do not call for litigation of assigned causes of action.  Rather, the pleadings call for entry of a judgment on the settlement stated in the Miller-Shugart agreement.[2]  The trial court did not err in finding that appellant’s proposed amendment to the pleadings failed to state a claim that could survive summary judgment.

2.         The interpretation of an insurance policy is a question or law that an appellate court will review de novo.  Metropolitan Property & Cas. Ins. Co. v. Miller, 589 N.W.2d 297, 299 (Minn. 1999).  The determination of ambiguity in an insurance policy is also a question of law.  Hammer v. Investors Life Ins. Co., 511 N.W.2d 6, 8 (Minn. 1994). 

            Appellant claims that the deceased child was not a “family member” whose injuries were outside the scope of St. Paul Guardian’s liability coverage.  Appellant insists that the family-member language is written for permanent care situations and argues that the child in this case was not permanently residing with the Knoxes, it having always been understood that the child ultimately would be returned to his mother.  But the concept of permanence is employed in the family-member language solely in respect to live-in relatives other than children.  Coverage is not extended to “anyone under 21” who lives in the household and is cared for by the insured.  The language extends to “anyone” who is under age 21 and it precludes appellant’s assertion that the clause applies only to children who are non-relatives.  And there is no merit in appellant’s attempts to view the child as a mere “tenant.”  Appellant’s coverage contentions are defeated by unambiguous policy language.

Appellant then contends that the exceptions to the “child care services” exclusion—precluding use of the exclusion for “occasional” child care or care of “a relative” of the insured—establishes that the policy excludes coverage for some child care and allows coverage for others.  But the exceptions to the specific exclusion do not create coverage where a different section specifically limits liability coverage.  See Moorhead Mach. & Boiler Co. v. Employer’s Commercial Union Ins. Co., 285 N.W.2d 465, 468 (Minn. 1979) (where exclusions in an insurance policy clearly preclude coverage, an exception to an exclusion cannot create coverage unless the policy is ambiguous).  Furthermore, it is evident that both the child care exclusion and its exceptions refer to baby-sitting-type child care, not the long-term custody arrangement that existed here.

Appellant also claims that the Knoxes could reasonably expect liability coverage for their grandson’s death.  This court has held that where a household exclusion is neither ambiguous nor hidden and the insured can read the policy and understand the exclusion, the exclusion does not violate the insured’s reasonable expectations.  Vierkant by Johnson v. AMCO Ins. Co., 543 N.W.2d 117, 121 (Minn. App. 1996), review denied (Minn. Mar. 28, 1996).  The policy language that defeats appellant’s coverage claim is neither hidden nor ambiguous and does not violate the insureds’ reasonable expectations.

Appellant’s claim that the coverage under the umbrella policy accompanying the PAK II policy was illusory must also fail.  PAK II’s umbrella policy did not claim coverage broader than the simple PAK II but instead provides added limits and covers some additional property and personal injuries not necessarily covered by other, non-PAK II policies.  Also, there is no evidence here that any premium was specifically allocated to coverage for injuries of family members (or other people under the age of 21) residing with the insureds.  See Jostens, Inc. v. Northfield Ins. Co., 527 N.W.2d 116, 119 (Minn. App. 1995), review denied (Minn. Apr. 27, 1995) (illusory coverage doctrine is best applied “where part of the premium is specifically allocated to a particular type or period of coverage and that coverage turns out to be functionally nonexistent”).

Even if coverage under the umbrella policy were illusory in some circumstances, none of its sections state expanded liability for members of the family, and none of the broadened statements of coverage is pertinent to the family issue.  Finally, the umbrella policy specifically states that it does not cover claims that are excluded from the simple PAK II coverage. 

            Affirmed. 

——————————————————————————–

[1] In the settlement, the grandparents stipulated to a judgment in the amount of $425,000, providing that the Knoxes would pay $45,000 in return for a release of their further liability, and that the child’s trustee would seek the remaining judgment only from the grandparents’ insurance company or the “liability or other insurance carrier” of the agency or individual that sold the policy to the grandparents.

[2] The trial court analysis of this issue may be read to simply suggest that the Miller-Schugart agreement is not an appropriate vehicle for making the assignment of claims permitted by Peterson.  But respondent acknowledges that a settlement document could incorporate both a Miller-Shugart settlement and a separate assignment of claims.  We conclude that the trial court’s objection to appellant’s Miller-Shugart assertion against the insurance agent rests singularly on the reality that appellant is not proposing the assignment of undetermined claims but is asserting the agent’s responsibility for claims already finally determined in the settlement agreement.

The trial court did not reach the assertion of respondent on appeal, that the scope of the assignment stated in the Miller-Shugart employed in this case was confined to indemnity claims and did not extend to claims of negligence or breach of contract.  That contention need not be determined for the disposition of the case before us. 

            Aside from the Miller-Schugart-agreement characteristics of determining a liability and assigning the judgment claim or others, we have suggested before that the agreement has significance in stating a release of alleged tortfeasors.  See, e.g., Peterson, 457 N.W.2d at 750 (remanding so that the trial court could determine whether a duly assigned claim against an insurance agency was released by a Miller-Shugart agreement).  That question also required no attention by the trial court in this case and need not be reviewed.

Finally, the trial court did not determine and we do not have before us the question of whether or not appellant demonstrated the existence of evidence raising genuine issues of material fact on her claims of fault of the agent, either on a theory of negligence or breach of contract.

If you have suffered the loss of a loved one, please contact one of our wrongful death lawyers for a free, no obligation consultation.  We have locations state wide and offer free in home visits.  Minneapolis Area 612-767-2009, St. Paul 651-789-0059, Southern Suburbs 952-767-0121, Northern Suburbs 763-231-0383.  If you are outside the Metro Area, call Toll Free 1-866-777-2557. 

Minnesota Wrongful Death Cases Swimming Pool Drowning

IN COURT OF APPEALS

A03-1635

A04-205

Kelci Stringer, individually and as Personal Representative of the Estate of Korey Stringer, and as Trustee for the Heirs and Next of Kin of Korey Stringer, et al.,
Appellants,

vs.

Minnesota Vikings Football Club, LLC, et al.,
Respondents,

Dennis Green, et al., Defendants,
 

W. David Knowles, MD, et al., Defendants.

Filed September 21, 2004

Affirmed

Wright, Judge

Hennepin County District Court

File No. 02-415

Paul DeMarco (pro hac vice), Waite, Schneider, Bayless & Chesley Co., L.P.A., 1513 Fourth & Vine Tower, Fourth and Vine Street, Cincinnati, OH  45202; and

Eric J. Magnuson, Rider Bennett, L.L.P., 333 South Seventh Street, Suite 200, Minneapolis, MN  55402; and

Kenneth R. White, Law Office of Kenneth R. White, P.C., 325 South Broad Street, Suite 203, Mankato, MN  56001; and

Richard G. Hunegs, Randal W. LeNeave; Hunegs, Stone, LeNeave, Kvas & Thornton, P.A., 1650 International Centre, 900 Second Avenue South, Minneapolis, MN  55402; and

Kevin O’C. Green, Law Offices of Kevin O’C. Green, P.A., 126 East Pleasant Street, Mankato, MN  56001 (for appellants)

James A. O’Neal, Bruce G. Jones, Amy R. Freestone; Faegre & Benson, L.L.P., 2200 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN  55402 (for respondents)

            Considered and decided by Wright, Presiding Judge; Randall, Judge; and Kalitowski, Judge.

S Y L L A B U S

1.         When an employee undertakes direct action to assist a co-employee with a workplace injury, that employee acquires a personal duty to exercise proper care.

2.         When a co-employee has a personal duty to exercise proper care in the treatment of a workplace injury and provides more than scant care that does not entirely disregard the consequences of the injury, the co-employee is entitled to summary judgment in an action for gross negligence under the workers’ compensation act.

O P I N I O N

Wright, Judge

Appellants brought a wrongful-death action against co-employees of the deceased.  The district court granted summary judgment based on co-employee immunity under the workers’ compensation act.  Arguing that respondents (1) owed a personal duty to the deceased and (2) were grossly negligent in breach of that duty, appellants contend that summary judgment was erroneously granted because there are genuine issues of material fact as to whether an exemption to co-employee immunity applies.  We affirm.

FACTS

Korey Stringer, a professional football player with the Minnesota Vikings, died of complications from heat stroke on August 1, 2001.  Appellant Kelci Stringer and other survivors brought this wrongful-death action in February 2002.  The defendants included several employees of the Minnesota Vikings:  head trainer Charles Barta, assistant trainer Paul Osterman, and coordinator of medical services Fred Zamberletti (collectively respondents).[1]

            Stringer reported to training camp on July 29, 2001.  On the first day of training camp, July 30, Stringer complained of bouts of stomachache.  Late that afternoon, Stringer started vomiting during practice.  A coach called Barta and asked him to assist Stringer.  While on the field with Barta, Stringer vomited two more times.  Barta then escorted Stringer to an air-conditioned first-aid trailer.

Inside the trailer, Osterman and Zamberletti were assisting other players.  Barta told Zamberletti that Stringer was vomiting and needed to cool down.  Barta then retrieved Dr. William Knowles, a training-camp physician.  By the time Dr. Knowles arrived, Stringer had received water and was not exhibiting ill effects.  According to Dr. Knowles’s notes, Stringer suffered an “episode of heat exhaustion” but “recovered without incident following rest and hydration.”  That evening Barta supplied Stringer with two bottles of Gatorade to assist in rehydration.

Severe heat and humidity were predicted for morning practice on July 31.  As part of the daily training-camp routine, all players were weighed before and after practice.  Barta examined Stringer’s weight chart, comparing Stringer’s weight from the prior afternoon to his weight that morning.  Barta did not note any extraordinary changes.  As a result, Barta allowed Stringer to participate fully in morning practice.

At approximately 10:30 a.m., Stringer vomited again but continued to participate in practice.  While working out on a large blocking dummy, Stringer dropped to one knee.  Osterman checked on Stringer, who refused assistance.  Shortly thereafter, Stringer lay down on the practice field.  Osterman and another trainer were called to assist Stringer.  Stringer got up and struck the blocking dummy once more; then Osterman escorted Stringer to the first-aid trailer.

Osterman and Stringer entered the trailer at approximately 11:20 a.m.  Osterman gave Stringer water, and he took a few sips.  Stringer lay down on the floor of the trailer at some point later.  Approximately five to ten minutes after they had entered, Stringer asked Osterman to remove his shoes and ankle tape.  As Osterman did so, he observed that Stringer was sweating and his skin was moist.  Stringer thanked Osterman for his assistance.  Osterman then gave Stringer iced towels to cool down.  Stringer moved to an examination table for a few minutes, where he was observed humming and bobbing his head.  Later he moved back to the floor.  Osterman did not find this behavior unusual. 

Another trainer arrived with a cart to transport Stringer back to the camp dormitory.  But by that time, Stringer was unresponsive.  Osterman instructed the other trainer to retrieve Zamberletti.  While Osterman waited for Zamberletti to arrive, he took Stringer’s pulse, which was “steady but weak.”

When Zamberletti arrived, he saw Stringer breathing rapidly and concluded that Stringer was hyperventilating.  To treat this condition, Zamberletti instructed another trainer to place a plastic bag around Stringer’s mouth for 45 to 60 seconds.  Zamberletti took Stringer’s pulse and felt that Stringer’s skin was cool and sweaty.  Zamberletti then made emergency arrangements to transport Stringer to the hospital.

Stringer arrived at the hospital at approximately 12:25 p.m.  His body temperature, measured for the first time that day, was 108.8 degrees.  Stringer died early in the morning of August 1, 2001, from complications of heat stroke.

Appellants submitted seven expert affidavits on respondents’ care and treatment of Stringer.  Appellants’ experts generally assert that, prior to Stringer’s hospitalization, respondents failed to (1) properly investigate Stringer’s condition; (2) prevent his participation in the July 31 practice; (3) observe changes in his behavior; (4) monitor his vital signs as his condition worsened; (5) diagnose and implement treatment for heat stroke; and (6) rapidly procure emergency treatment.

Appellants’ experts raise more specific challenges to the actions of individual respondents.  One alleges that, because players sometimes wore sweat-drenched uniforms when they were weighed, Barta lacked reliable data to calculate actual weight loss.  Others allege that Zamberletti misdiagnosed Stringer for hyperventilation; they claim that, by placing a plastic bag around Stringer’s mouth, Zamberletti exacerbated Stringer’s heat stroke.

On these facts, respondents moved for summary judgment, contending that they had co-employee immunity under the workers’ compensation act.  The district court granted respondents’ motion.  This appeal followed.

ISSUES
 

I.          Are there genuine issues of material fact as to respondents’ personal duty, thereby precluding summary judgment based on co-employee immunity under the workers’ compensation act?

II.         Are there genuine issues of material fact as to respondents’ gross negligence, thereby precluding summary judgment based on co-employee immunity under the workers’ compensation act?

ANALYSIS
 

            Appellants contend that the district court erroneously granted respondents summary judgment based on co-employee immunity under the workers’ compensation act.  Whether summary judgment was properly granted is a question of law, which we review de novo.  Prior Lake Am. v. Mader, 642 N.W.2d 729, 735 (Minn. 2002).  In doing so, we consider whether any genuine issues of material fact exist and whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  A genuine issue of material fact does not exist when “the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.”  DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986)).  “[T]he party resisting summary judgment must do more than rest on mere averments.”  Id. at 71.  A genuine issue for trial must be established by substantial evidence.  Id. at 69-70.  We view the evidence in the light most favorable to the party against whom summary judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  Summary judgment is appropriate when a party fails to establish the existence of an element essential to the party’s case.  Bersch v. Rgnonti & Assocs., Inc., 584 N.W.2d 783, 786 (Minn. App. 1998), review denied (Minn. Dec. 15, 1998).

            Here, the district court granted summary judgment on two separate bases.  First, it held that respondents had no personal duty to Stringer.  In the alternative, the district court held that respondents’ actions were not grossly negligent.  Because the existence of a duty is a prerequisite to negligence, we address this issue first.

I.

            The workers’ compensation act is based on a “mutual renunciation of common law rights and defenses by employers and employees alike.”  Minn. Stat. § 176.001 (2002).  Employers assume strict liability for workplace injuries, assuring that employees receive due compensation, while also avoiding the expense of complex common-law litigation.  Foley v. Honeywell, Inc., 488 N.W.2d 268, 271 (Minn. 1992).  Underlying strict liability is the premise that employers have an exclusive and nondelegable duty to provide a safe workplace.  Wicken v. Morris, 527 N.W.2d 95, 99 (Minn. 1995).  Because co-employees execute this duty, they ordinarily are conferred immunity.  Id.  But co-employee immunity does not exist when “the injury resulted from the gross negligence of the co-employee or was intentionally inflicted by the co-employee.”  Minn. Stat. § 176.061, subd. 5(c) (2002).

            Prior to the codification of co-employee immunity at section 176.061, the Minnesota Supreme Court considered the scope of this immunity in Dawley v. Thisius,  304 Minn. 453, 455, 231 N.W.2d 555, 557 (1975), holding:

The acts of negligence for which a co-employee may be held liable must be acts constituting direct negligence toward the plaintiff, tortious acts in which he participated, or which he specifically directed others to do.  A co-employee may be held liable when, through personal fault as opposed to vicarious fault, he breaches a duty owed to plaintiff. . . . He must have a personal duty towards the injured plaintiff, breach of which has caused plaintiff’s damage.

Id. (citations omitted).  The Dawley court concluded that there was no personal duty based on a manager’s “general administrative responsibility” to maintain a safe workplace.  Id.

            Following the enactment of section 176.061, the Minnesota Supreme Court revisited the concept of personal duty in Wicken.  527 N.W.2d at 98.  Adopting and expanding the analysis in Dawley, the Wicken court emphasized that personal duty does not attach when an employee executes the employer’s nondelegable duty to provide a safe workplace.  Id. at 99.  It reaffirmed the principle of Dawley, again holding that personal duty does not include a manager’s “administrative activity” to keep a safe workplace.  See id.  The Wicken court described personal duty as “no different than the duty any individual owes another arising from normal daily social contact—the duty to refrain from conduct that might reasonably be foreseen to cause injury to another.”  Id. at 98.

In other cases involving managers and officers with administrative responsibility for workplace hazards, Dawley and Wicken have been consistently interpreted to provide immunity from negligence actions.  In these cases, because the employees’ actions were pursuant to the employer’s nondelegable duty to provide a safe workplace, no personal duty attached.  See, e.g., Buck v. Freeman, 619 N.W.2d 793, 795-96 (Minn. App. 2000), review denied (Minn. Feb. 21, 2001); Wood v. Korn, 503 N.W.2d 523, 525 (Minn. App. 1993), review denied (Minn. Aug. 24, 1993).

            Based on the foregoing authorities, a personal duty arises when a co-employee undertakes direct acts toward another employee, Dawley, 304 Minn. at 455, 231 N.W.2d at 557, that are not pursuant to the employer’s nondelegable duty to provide a safe workplace, Wicken, 527 N.W.2d at 99.  The scope of this duty is similar to that owed in the course of mutual association during any ordinary social contact.  Id. at 98.

            Appellants not only contend that Stringer’s injuries arose out of an unsafe workplace, but also that respondents failed to identify Stringer’s injuries and ensure proper treatment.  We observe that, because appellants’ claim is not strictly based upon alleged workplace hazards, the analysis here is unique.[2]

When the facts are taken in the light most favorable to appellants, respondents Osterman and Zamberletti both observed Stringer’s heat exhaustion on July 30, but they did not take further action.  When Stringer exhibited symptoms of heat stroke on July 31, neither recognized these symptoms or took action to treat them properly. 

Osterman and Zamberletti both were directly engaged in the care and treatment of Stringer.  Because their actions did not involve general workplace safety or the removal of workplace hazards, their actions were not pursuant to their employer’s nondelegable duty to provide a safe workplace.  We, therefore, hold that Osterman and Zamberletti had a personal duty to Stringer.

This personal duty is equivalent to that of any ordinary person in the course of ordinary social contact.  Wicken, 527 N.W.2d at 98.  When an ordinary person knows of another’s distress and takes charge of or controls the circumstances, that person has an affirmative duty to provide due care.  See, e.g., Regan v. Stromberg, 285 N.W.2d 97, 99-100 (Minn. 1979) (finding genuine issue of material fact as to whether husband was in charge of intoxicated wife and thereby owed duty of due care to her when he abandoned her on a highway at night); Tiedeman ex rel. Tiedeman v. Morgan, 435 N.W.2d 86, 88 (Minn. App. 1989) (finding that host aware of guest’s heart condition owed duty of due care to guest upon learning that guest was suffering an “episode of illness”), review denied (Minn. Mar. 29, 1989).  That duty exists here, regardless of the co-employee relationship among Stringer, Osterman, and Zamberletti.  See Dawley, 304 Minn. at 455, 231 N.W.2d at 557. 

Again, viewing the evidence in the light most favorable to appellants, Barta knew of Stringer’s heat exhaustion on July 30.  Barta was responsible for accurately weighing the players, but he did not ensure that these measurements were correct.  Barta also did not take Stringer out of practice on July 31.

Arguably, when Barta evaluated Stringer’s weight, Barta was undertaking a direct act toward Stringer.  But there is no question that Barta did so to determine whether it was safe for individual players to practice.  Because Barta’s actions arose out of his employer’s nondelegable duty to ensure safe work conditions, we hold that Barta had no personal duty to Stringer.  In the absence of a personal duty, Barta enjoys the protection of co-employee immunity under Minn. Stat. § 176.061, subd. 5(c).

Relying on the district court’s analysis, respondents argue that any action by a co-employee within the scope of employment is necessarily excluded from personal duty.  This proposition is not directly stated in any workers’ compensation immunity cases.  Citing several unpublished opinions, respondents derive this rule from the fact that, in these cases, actions within the scope of employment caused the injury.  See, e.g., Wicklander v. Rarick, No. C5-02-1217, 2003 WL 282384, at *3 (Minn. App. Feb. 11, 2003) (finding no personal duty where prison workshop supervisors failed to protect foreperson from violent offender); Graves v. McConnell, No. C1-99-1929, 2000 WL 719753, at *5 (Minn. App. June 6, 2000) (finding no personal duty where plant operator, due to breakdown in workplace procedures, miscommunicated that plaintiff had already left steam tunnel).

This argument is unavailing.  As the foregoing analysis indicates, under some circumstances, personal duty may be coextensive with employment duties.  But not every action taken by an employee is in furtherance of the employer’s nondelegable duty to provide a safe workplace.  Cf. Stelling v. Hanson Silo Co., 563 N.W.2d 286, 290 (Minn. App. 1997).  Because Osterman and Zamberletti undertook direct acts toward Stringer that were not in furtherance of their employer’s duty to provide a safe workplace, a personal duty arose.

II.

            Once the personal duty is established, liability is incurred only if the actions of the co-employees are grossly negligent.  Minn. Stat. § 176.061, subd. 5(c).  The Minnesota Supreme Court first provided a detailed definition for gross negligence in State v. Bolsinger, 221 Minn. 154, 159, 21 N.W.2d 480, 485 (1946).  It said:

Gross negligence is substantially and appreciably higher in magnitude than ordinary negligence.  It is materially more want of care than constitutes simple inadvertence.  It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care.  It is very great negligence, or the absence of slight diligence, or the want of even scant care.  It amounts to indifference to present legal duty, and to utter forgetfulness of legal obligations so far as other persons may be affected.  It is a heedless and palpable violation of legal duty respecting the rights of others.

Id. (quoting Altman v. Aronson, 121 N.E. 505, 506 (Mass. 1919)).  This definition has subsequently been applied to determine whether co-employee liability exists in workers’ compensation cases.  See Ackerman v. Am. Family Mut. Ins. Co., 435 N.W.2d 835, 840 (Minn. App. 1989).

            More recently, in State v. Chambers, again in the context of criminal vehicular homicide, the Minnesota Supreme Court revisited the gross negligence standard.  589 N.W.2d 466, 478-79 (Minn. 1999).  Based on a narrow indirect quotation from Bolsinger, the Chambers court defined gross negligence as action “without even scant care but not with such reckless disregard of probable consequences as is equivalent to a willful and intentional wrong.”  Id.  This definition was later adopted by the Minnesota District Court Judges Association in the guideline jury instruction for gross negligence.  See 4 Minnesota Practice, CIVJIG 25.35 (1999) (“Gross negligence occurs when a person does not pay the slightest attention to the consequences, or uses no care at all.”).

            Few cases have considered whether a co-employee’s actions reach the threshold of gross negligence.  All of these have concluded that gross negligence did not occur.  Thus, it was not gross negligence when a supervisor assembled a nonstandard scaffolding system for silo construction.  Terveer v. Norling Bros. Silo Co., 365 N.W.2d 279, 280 (Minn. App. 1985), review denied (Minn. May 31, 1985); cf. Ackerman, 435 N.W.2d at 840 (finding no gross negligence when evidence showed defendant had safely operated truck, but could not stop in time to prevent collision).

            On the evening of July 30, after Stringer’s bout with heat exhaustion, Barta sent Gatorade to Stringer’s dormitory to assist in rehydration.  After morning practice on July 31, Osterman walked with Stringer to the first-aid trailer.  Osterman observed Stringer’s condition, gave him water, removed his shoes, and applied iced towels.  When Zamberletti arrived, he attempted to treat Stringer for hyperventilation and then arranged emergency transportation to the hospital. 

Even when viewed in the light most favorable to appellants, the uncontroverted record establishes that respondents were cognizant of potential adverse consequences arising from Stringer’s condition and took some actions to care for him.  Respondents’ actions may reflect poor judgment or lack of reasonable care, but there is no basis to conclude that respondents disregarded the risk to Stringer altogether in a manner “equivalent to a willful and intentional wrong.”  Chambers, 589 N.W.2d at 478.  Because the evidence, viewed most favorably to appellants, cannot support a conclusion of gross negligence as a matter of law, the district court properly granted summary judgment.  Cf. Terveer, 365 N.W.2d at 281.

In challenging the district court’s conclusion that the record does not support a determination of gross negligence, appellants rely on their experts’ affidavits, which uniformly conclude that respondents failed to provide even scant care for Stringer.  Conclusory statements in an expert affidavit do not necessarily preclude summary judgment, Potter v. Pohlad, 560 N.W.2d 389, 395 (Minn. App. 1997), review denied (Minn. June 11, 1997), and will not remedy a legally deficient claim, In re Trusts A & B of Divine, 672 N.W.2d 912, 918 (Minn. App. 2004).  Even if appellants’ experts correctly determined that respondents’ actions led to Stringer’s death, a contrary outcome is not compelled under the applicable standard for gross negligence.

III.

            Appellants also challenge the district court’s award of $34,981 to respondents for expert fees.  Prior to assessing costs and disbursements, the district court must hold an oral hearing “so a full record is available for review.”  Stinson v. Clark Equip. Co., 473 N.W.2d 333, 338 (Minn. App. 1991), review denied (Minn. Sept. 13, 1991).  Here, the district court conducted a hearing on costs and disbursements, but appellants failed to provide a transcript of that hearing on appeal.  Without a record, we must assume that the findings of the district court would be supported by what occurred at the hearing, and we decline to consider appellants’ challenge to this award.  See Noltimier v. Noltimier, 280 Minn. 28, 29, 157 N.W.2d 530, 531 (1968) (allowing dismissal of appeal based upon incomplete record).

D E C I S I O N
 

            Respondents Osterman and Zamberletti undertook direct acts toward Stringer that were not pursuant to their employer’s nondelegable duty to provide a safe workplace; conversely, respondent Barta’s actions were pursuant to this duty.  Accordingly, Osterman and Zamberletti had a personal duty to Stringer, but Barta did not.  All respondents nevertheless exercised more than a scant level of care that did not entirely disregard the particularly adverse consequences arising from the symptoms of injury Stringer exhibited.  Because the facts viewed in the light most favorable to appellants do not establish a genuine issue of material fact as to whether respondents were grossly negligent, the district court did not err by entering summary judgment in favor of respondents.

            Affirmed.

——————————————————————————–

[1] Although Minnesota Vikings Football Club, LLC is also a defendant in this matter, its liability, if any, is not at issue in this appeal.

[2]  Only two other states, Florida and Iowa, currently extend immunity to co-employees but provide an exemption for some form of negligence.  See 6 Arthur Larson & Lex K. Larson, Workers’ Compensation Law § 111.03 (2002); see also Fla. Stat. ch. 440.11(1)(b) (2003); Iowa Code § 85.20 (2001).  Neither of these jurisdictions has considered a factual situation comparable to the one presented here.  See generally Marjorie A. Shields, Annotation, Award of Workers’ Compensation Benefits to Professional Athletes, 112 A.L.R.5th 365 (2003).

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Minnesota Wrongul Death Action - Workplace Injuries

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-99-1849 - C0-99-2084

Vicki L. Norman, et al.,

Respondents,

vs.

Aaron Enevoldsen, et al.,

Appellants (C3-99-1849),

Aaron Enevoldsen,

Defendant (C0-99-2084),

KeEtta Enevoldsen,

Petitioner (C0-99-2084),

and

Josh Macziewski,

Respondent (C0-99-2084),

vs.

Aaron Enevoldsen,

Defendant (C0-99-2084),

KeEtta Enevoldsen,

Petitioner (C0-99-2084).

Filed May 30, 2000

Reversed
Shumaker, Judge

Chippewa County District Court

File No. C6-97-279

Sarah Winge, Stephen Torvik, Nelson, Oyen, Torvik, P.L.L.P., 221 North First Street, P.O. Box 656, Montevideo, MN 56265 (for respondents)

John R. Rodenberg, Berens, Rodenberg & O’Connor, Chtd., 519 Center Street, P.O. Box 428, New Ulm, MN 56073-0428 (for appellants)

            Considered and decided by Shumaker, Presiding Judge, Crippen, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

Appellant-mother misrepresented to an insurance carrier that she had an insurable interest in appellant-son’s truck.  The son drove the truck negligently and got into an accident that killed one of the son’s passengers.  After a court declared that there was no insurance coverage on the truck, the decedent’s trustees brought a wrongful-death action, claiming that the mother is liable to them because of her misrepresentation to the insurer. After denying the mother’s motions for summary judgment and for dismissal for failure to state a claim, the district court certified as important and doubtful the question of whether a claim of misrepresentation would lie against the mother.  We answer the question in the negative and reverse the district court’s denial of the mother’s motion to dismiss.

FACTS

Twenty-one-year-old Aaron Enevoldsen bought a pickup truck and registered title in his name.  He was unable to insure the truck because of his poor driving record.  His mother, KeEtta Enevoldsen, obtained insurance on the truck, although she was neither an owner nor a driver and even though her son did not reside in her household.  She did not tell the insurer that the truck belonged to her son and she said that she would be using it for craft shows.  The insurer listed the truck solely in her name.

Aaron Enevoldsen was involved in an accident while driving the truck on December 20, 1996.  One passenger, Ole Steve Norman, was killed.  Another passenger was injured.

The insurer brought an action in federal district court seeking a declaration that it had no obligation to provide insurance coverage for the accident.  Ruling that the insurance policy was void ab initio because KeEtta Enevoldsen had no insurable interest in the truck, the federal district court granted summary judgment in favor of the insurer.

The trustees for the next of kin of Ole Steve Norman then brought a wrongful‑death action against Aaron and KeEtta Enevoldsen in a Minnesota district court.  The trustees alleged that Aaron Enevoldsen’s negligence was imputed by operation of law to his mother.  After denying KeEtta Enevoldsen’s motion for summary judgment, the district court allowed the trustees to amend their complaint to allege a claim of misrepresentation against KeEtta Enevoldsen.  Through this claim the trustees sought to impose liability on KeEtta Enevoldsen because of her failure to disclose to the insurer that her son owned the truck.

The court denied KeEtta Enevoldsen’s motion to dismiss the action for failure to state a claim and certified to this court the question of whether the trustees have stated a claim against KeEtta Enevoldsen.

D E C I S I O N

If the district court certifies a question as important and doubtful, an appeal may be taken from the court’s order denying a motion to dismiss for failure to state a claim or from an order denying summary judgment.  Minn. R. Civ. App. P. 103.03(h).  A certified question is an issue of law that an appellate court reviews de novo.  In re Butler, 552 N.W.2d 226, 229 (Minn. 1996).

The certified question is whether KeEtta Enevoldsen’s misrepresentation to the insurer of the truck creates liability to third parties for damages caused by her son’s negligent operation of the truck.  The trustees argue that, but for KeEtta Enevoldsen’s misrepresentation, the truck would have been insured and they would have been the beneficiaries of the coverage.

We disagree with the trustees’ reasoning.  The record shows that Aaron Enevoldsen was unable to obtain insurance on his own.  Thus, with or without his mother’s misrepresentation, he would not have been an insured owner or driver.  Minnesota law requires owners of motor vehicles that will be operated on public streets to obtain liability insurance.  Minn. Stat. § 65B.48, subd. 1 (1998).  But there is nothing in this record to show that Aaron Enevoldsen would have or could have complied with that mandate.

Moreover, the trustees are unable to state a claim of misrepresentation against KeEtta Enevoldsen.  Under Minnesota law, two essential elements of the tort of misrepresentation are (1) the defendant intended by the misrepresentation to induce the plaintiff to act, and (2) the plaintiff was induced to act in reliance on the representation.  Gorham v. Benson Optical, 539 N.W.2d 798, 802 (Minn. App. 1995).

KeEtta Enevoldsen’s representation was made to the insurer alone and solely to induce the insurer to issue an insurance policy.  Neither the decedent nor the trustees had any knowledge of KeEtta Enevoldsen’s representation or of the policy that the insurer issued. There exists no fact from which to draw a reasonable inference that anyone other than the insurer was induced to act in reliance on the representation.

We answer the certified question in the negative.  Because respondents are unable to state a claim against KeEtta Enevoldsen under Minnesota law, she is entitled to judgment dismissing the action against her.  A dismissal of the action makes the summary judgment issue moot.

Reversed.

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Minnesota Truck Accident With No Insurance