This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C1-99-1056

Carlo Pisa,
Appellant,

vs.

DuWayne R. Olson,
Respondent,

Jon Blanchar,
Respondent,

John Colosimo,
Respondent.

Filed January 18, 2000
Affirmed in part, reversed in part, and remanded
Schumacher, Judge

St. Louis County District Court
File No. C898100469

Steven A. Nelson, 210 Fourth Avenue, International Falls, MN 56649 (for appellant)

James F. Clark, 1937 Second Avenue East, Hibbing, MN 55746 (for respondent Olson)

Steven L. Reyelts, Eric D. Hylden, Halverson, Watters, Downs, Reyelts & Bateman, Ltd., 700 Providence Building, Duluth, MN 55802 (for respondent Blanchar)

H. Jeffrey Peterson, Alicia L. Cope, Cope & Peterson, P.A., 415 South First Street, Minneapolis, MN 55792 (for respondent Colosimo)

Considered and decided by Davies, Presiding Judge, Crippen, Judge, and Schumacher, Judge.

U N P U B L I S H E D   O P I N I O N

SCHUMACHER, Judge

Carlo Pisa appeals an adverse summary judgment, claiming that his injury was a result of the negligence of respondents DuWayne R. Olson, Jon Blanchar, and John Colosimo. We affirm summary judgment as to Olson, but we find there are disputed issues of material fact with regard to the negligence of Blanchar and Colosimo. We affirm in part, reverse in part, and remand.

FACTS

On June 10, 1995, Pisa, Blanchar and Colosimo were at Olson's home helping him move a pool table into the basement. The four men were in the process of carrying the slate table top through the entrance door and down the stairs when either Blanchar or Colosimo, or both, dropped their end of the table top and Pisa was injured. The table top weighed between 300 and 500 pounds.

Pisa sued Olson, Blanchar, and Colosimo, claiming that Olson breached his duty as a landowner to safely organize the planning of the move and that Blanchar and Colosimo were negligent in dropping the table top.

Olson, Blanchar, and Colosimo moved for summary judgment. The district court found that Olson was not negligent as a matter of law because the danger was open and obvious. The court also found that although Blanchar and Colosimo owed Pisa a duty, which they may have breached by dropping their end of the table top, Pisa assumed the risk involved in the move. Pisa appeals.

D E C I S I O N

Summary judgment may be granted when there are no genuine issues of material facts and either party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. The existence of a legal duty is an issue of law for the court to decide. Larson v. Larson, 373 N.W.2d 287, 289 (Minn. 1985). On appeal, we need not defer to the district court's conclusion or reasoning on legal issues. See Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

1. A landowner has a duty to use reasonable care for the safety of all persons invited upon his property. Peterson v. Balach, 294 Minn. 161, 174, 199 N.W.2d 639, 647 (1972). One does not have a duty, however, to warn another against dangers that are open and obvious to any person of ordinary intelligence and judgment. Zuercher v. Northern Jobbing Co., 243 Minn. 166, 171, 66 N.W.2d 892, 897 (1954). In the case at bar, Olson did not warn Pisa of the dangers involved in moving the table top. We conclude, however, that any danger associated in moving the table top was so open and obvious that Olson had no duty to warn Pisa.

2. The district court correctly found that Colosimo and Blanchar owed Pisa a duty. "[O]ne who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all." Thelen v. Spilman, 251 Minn. 89, 97, 86 N.W.2d 700, 706 (1957) (citation and quotation omitted). Similarly, when several people are occupied in the same task, and the negligent behavior of one or more of them could injure others, all have a duty to "exercise the care and skill ordinarily employed by prudent men in similar circumstances." Schmidt v. Beninga, 285 Minn. 477, 487, 173 N.W.2d 401, 406 (1970).

3. The district court found that Pisa assumed any risk involved in moving the table top. The assumption of risk doctrine is applicable where one has knowledge of the risk, appreciates the risk, and has a chance to avoid it but voluntarily chooses to undertake the risk anyway. Evanson v. Jerowski, 308 Minn. 113, 118, 241 N.W.2d 636, 640 (1976). Minnesota recognizes two types of assumption of risk: primary and secondary. Secondary assumption of risk is a type of contributory negligence. Andren v. White-Rodgers Co., 465 N.W.2d 102, 104 (Minn. App. 1991), review denied (Minn. Mar. 27, 1991).

Assumption of risk is a question of law where the facts are undisputed and only one conclusion may be drawn from those facts. Id. at 105. Where there are two versions of the facts, however, whether either primary assumption of risk or comparative negligence applies is a question of fact for the jury. See Wagner v. Thomas J. Obert Enters., 396 N.W.2d 223, 226 (Minn. 1986). But here, as the district court found, "[b]ecause Blanchar and Colosimo owed a duty of reasonable care to the Plaintiff and there exists a material issue of fact in dispute, summary judgment due to a lack of legal duty as to these Defendants is inappropriate."

4. Pisa also contends that a joint enterprise existed, in which case Olson, Blanchar, and Colosimo may be held vicariously liable for each others' negligence. "Whether joint enterprise exists is a question of law." Weber by Sanft v. Goetzke, 371 N.W.2d 611, 616 (Minn. App. 1985), review denied (Minn. Sep. 16, 1985) (citations omitted). Under this theory, all parties must have been engaged in a common purpose, and all must have had some legal right to control the remaining parties' actions. See, e.g., Delgado v. Lohmar, 289 N.W.2d 479, 482 (Minn. 1979).

There is no dispute that the parties were engaged in a common purpose. The parties did not, however, have "an equal right to direct and govern the movements and conduct of every other participant with respect thereto," Spannaus v. Otolaryngology Clinic, 308 Minn. 334, 339, 242 N.W.2d 594, 597 (1976), or "an enforceable right to control the movements of another." Weber by Sanft, 371 N.W.2d at 616.

There was never a specific plan to move the table top. The operation was, in Pisa's words, "just a bunch of guys going to help a guy out." No one shared moving equipment or tools. No member had legal control over the others, or an enforceable right to control their movements. Furthermore, this was a gratuitous and voluntary activity, and our supreme court has been reluctant to impose the mantle of a joint enterprise on such activities. See Weber by Sanft, 371 N.W.2d at 616; see also Delgado, 289 N.W.2d at 483. The district court was correct in finding that a joint venture did not exist.

Affirmed in part, reversed in part, and remanded.