This opinion will be unpublished and

may not be cited except as provided by

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







Lauren Graves, individually and as trustee

for the next-of-kin of Robert Graves,





Oliver J. McConnell,



Harold R. Thomas,




Filed June 6, 2000


Halbrooks, Judge


Hennepin County District Court

File No. WD 98-3787



Richard A. LaVerdiere, Michael R. Strom, Sieben, Polk, LaVerdiere, Jones & Hawn, P.A., 999 Westview Drive, Hastings, MN 55033 (for appellant)


Cooper S. Ashley, Mark W. Lee, Maslon, Edelman, Borman & Brand, L.L.P., 3300 Norwest Center, 90 South 7th Street, Minneapolis, MN 55402-4140 (for respondent)




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

U N P U B L I S H E D   O P I N I O N


            Appellant Lauren Graves, Robert Graves’s widow, sued respondent Harold Thomas, Graves’s co-employee, for gross negligence.  She contends Thomas failed to exercise proper care when he wrongly assured coworkers that Graves was no longer working in a mechanical vault into which high pressure steam was released.  The district court granted summary judgment in favor of Thomas, and Graves’s widow appeals, contending that there are genuine issues of material fact as to whether Thomas was grossly negligent and breached a personal duty to Graves.  Because we conclude Thomas did not breach a personal duty to Graves, we affirm.


            The Minneapolis Energy Center (MEC) supplies steam that heats the buildings in downtown Minneapolis in the winter and chilled water that cools them in the summer.  To meet its customers’ demand for steam during peak winter periods, MEC purchases additional steam from the Hennepin County Energy Center (HCEC).  Steam generated at HCEC is introduced into the MEC system for delivery to its customers via the “interconnect,” a steam line constructed by MEC. 

            The steam generated by MEC and HCEC moves through downtown Minneapolis via a series of underground pipes.  There are also underground vaults at various locations throughout the system.  Within the vaults are steamline connections and valves that permit workers to shut off steam from parts of the system in order to perform repairs and maintenance.

            Until the time of his death, Robert Graves, appellant’s husband, was employed by NRG Energy, Inc. (NRG).  NRG operates the MEC heating and cooling plants in downtown Minneapolis.  Graves was a distribution worker and was involved in the construction of the interconnect.  His job included making repairs on the valves and other equipment located in the underground vaults that form part of the piping system that distributes steam.  A distribution worker exercises his or her judgment in the maintenance and repair of the steamlines in accordance with applicable company rules, OSHA standards, and safety rules and regulations.

Respondent Harold Thomas is also an employee of NRG and a plant operator at the MEC plant.  His job responsibilities include operating the steam boilers and other equipment within the plant.  It is important from an operational standpoint for the plant operators to know when maintenance or repairs will require shutting down parts of the steam distribution system.  But plant operators have no supervisory responsibility over distribution workers and do not dictate how distribution workers do their job.  Both plant operators and distribution workers at MEC report to the same supervisor. 

            To ensure the safety of its employees, NRG employs a lockout/tagout system that requires valves in the system to be shut off when an NRG employee works on any portion of the steam system in a manner that has the potential to expose him or her to steam.  Employees involved in repair work use NRG issued padlocks and chains to mark any valve that has been turned off for safety reasons.  Employees are also required to place tags, conveying information related to the repair, on the valve itself.  Once the valve had been locked-out, only the worker responsible for the tag is permitted to remove it.

            Employees are also required to fill out a maintenance work request (MWR) before they begin work that requires physical intrusion into the steam distribution system.  Prior to undertaking any work, an NRG distribution employee must show the MWR to the supervisor to obtain his or her written approval to begin the work.  After the supervisor approves the work, the distribution employee gives a copy of the MWR to the plant operator on duty in order to inform the plant operator which equipment or portion of the line will be taken out of service.  If an employee is merely investigating a possible problem, he or she is not required to fill out an MWR. 

Graves was familiar with the lockout/tagout and MWR procedures.  The record, however, indicates that these policies were routinely unenforced, and not used by Graves on the day of the fatal accident. 

            On January 9, 1996, at about 6:30 a.m., Graves met Thomas in the control room at MEC and told Thomas that he was going to “take a look at” a steam leak near the Metrodome in a vault that was part of the interconnect line.  At that point, Thomas understood that Graves did not have an MWR, but that one was not necessary simply to look at a leak.  In his deposition, Thomas admitted being told that the crew was actually going to fix the steam leak. 

Shortly after this discussion, at around 6:50 a.m., Graves called or radioed Thomas and told him that after taking a look at the leak, the interconnect was going to be shut down, the work to fix the leak would take about two hours, and the Metrodome would be shut down while the work was being accomplished.  Graves did not use the lockout/tagout or MWR procedures.

            A short time later, someone from the Metrodome called Thomas at MEC to confirm that the Metrodome was without steam.  At about 9:00 a.m., Thomas received a radio call from someone in Graves’s crew stating that the Metrodome could now come back on-line with steam.  Thomas called the appropriate person at the Metrodome and informed him that the steam service was restored.  After the crew called Thomas, they continued to work without further contact with Thomas.  When Thomas last talked to Graves, he did not ask him the status of the repair job.

            At approximately 1:45 p.m., Thomas received a call from Oliver McConnell, the boiler operator at HCEC.  McConnell advised Thomas that HCEC wanted to send steam down the interconnect.  McConnell knew that Graves and his crew had been working in the steam vault and told Thomas that he needed to know whether the crew had completed its work.

Thomas contends that based on Graves’s statement that the work would take about two hours and the fact that the steam had been restored to the Metrodome, he concluded that the work was completed at 9:00 a.m.  According to Thomas, he, therefore, told McConnell that HCEC could release steam into the interconnect and that the work had been completed hours ago.  Thomas made no effort to contact Graves or his crew prior to speaking with McConnell.

After speaking with Thomas, McConnell called HCEC operations supervisor Patrick Rainville, and advised him of his conversation with Thomas.  Rainville had been specifically told by Henry Hanson, MEC director of operations, to make sure that the crew had completed their work, so Rainville personally called Thomas to verify his statements to McConnell.  Without making a call to Graves to double-check his belief, Thomas also told Rainville that the crew was “done a long time ago.”

At approximately 2:00 p.m., McConnell released steam into the interconnect after another HCEC worker opened the manual valve located in HCEC.  Steam flowed down the line and into the vault where Graves and his crew were still working.  The release of high pressure steam immediately filled the vault, resulting in third-degree burns to Graves and one of his crew members.  Despite managing to get out of the vault, both Graves and the other crew member died from their burns.

            Appellant brought a claim and recovered benefits pursuant to Minn. Stat. § 176.001-.861, the Workers’ Compensation Act.  Appellant separately commenced this action against Harold Thomas, based on his failure to exercise “even scant care” in the sequence of events culminating in Graves’s death.  Thomas moved for summary judgment, and the district court granted Thomas’s motion.  Lauren Graves appeals the district court’s ruling.


            On appeal from summary judgment, this court determines whether genuine issues of material fact exist or whether the trial court erred in its application of the law.  Minn. R. Civ. P. 56.03; DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997).  This court need not defer to a district court’s decision on issues of law.  Kornberg v. Kornberg, 542 N.W.2d 379, 384 (Minn. 1996).  While this court views the evidence in the light most favorable to the nonmoving party, the nonmovant must produce specific facts to create an issue for trial.  DLH, Inc., 566 N.W.2d at 71; Ruud v. Great Plains Supply, Inc., 526 N.W.2d 369, 371 (Minn. 1995). 

            The workers’ compensation system is based upon a “mutual renunciation of common law rights and defenses by employers and employees alike.”  Minn. Stat. § 176.001 (1994).  In exchange for guaranteed compensation regardless of fault, an employee covered by the act “gives up any right to a common law action against the employer.”  Wicken v. Morris, 527 N.W.2d 95, 99 (Minn. 1995) (quoting Boryca v. Marvin Lumber & Cedar, 487 N.W.2d 876, 879 n.3 (Minn. 1992)). 

            Subject to a limited exception, co-employees are also immune from liability.  The duty to provide employees with a safe workplace is a non-delegable duty held by the employer.  Dawley v. Thisius, 304 Minn. 453, 455, 231 N.W.2d 555, 557 (1975). 

This is a fundamental premise upon which the workers’ compensation laws are based.  The seemingly harsh result of holding a co-employee immune from liability arising from breach of the employer’s duty to provide a safe workplace is a necessary part of the statutory scheme, as it maintains the integrity of the compromise between employers and employees implemented by the legislature pursuant to Minn. Stat. Sec. 176.061, subd. 5(c).  * * *  [P]ermitting co-employee liability when harm results however indirectly from the carrying out of administrative obligations incident to work responsibilities would eviscerate the fundamental purpose of the workers’ compensation laws. 


Wicken, 527 N.W.2d at 99. 

            An injured employee may sue a co-employee only if the injured employee can satisfy a two-prong test.  Id. at 98. 

          First, the injured employee must establish that the co-employee had a personal duty toward the employee, the breach of which resulted in the employee’s injury, and that the activity causing the injury was not part of the co-employee’s general administrative responsibilities.


Id. (citing Dawley, 304 Minn. at 455, 231 N.W.2d at 557) (emphasis added).  The second prong of the test is satisfied where the injury arises from gross negligence on the part of the co-employee.  Id.  Minn. Stat. § 176.061, subd. 5(c) (1994) provides, in relevant part, that

[a] coemployee working for the same employer is not liable for a personal injury incurred by another employee unless the injury resulted from the gross negligence of the coemployee or was intentionally inflicted by the coemployee.


            The district court found that, as a matter of law, Thomas did not violate a personal duty to Graves and that Thomas was not grossly negligent.  Whether a duty exists is a question of law which this court reviews de novo.  Larson v. Larson, 373 N.W.2d 287, 289 (Minn. 1985). 

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.  Personal liability, however, will not be imposed on a co-employee because of his general administrative responsibility for some function of his employment without more.  He must have a personal duty towards the injured plaintiff, breach of which has caused plaintiff's damage. 


Wicken, 527 N.W.2d at 98 (quoting Dawley, 304 Minn. at 456, 231 N.W.2d at 557-58) (emphasis added). 

          The personal duty to co-employees contemplated in Dawley is 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. 


Wicken, 527 N.W.2d at 98.  Appellant argues that Thomas’s “careless assertion as to the crew’s whereabouts” was conduct Thomas could “reasonably foresee could cause injury.”  We are urged to translate this into a personal duty owed on the part of Thomas.  However, Thomas’s actions were not acts of direct negligence toward Graves.  As stated above, personal liability will not be imposed on a co-employee because of his general administrative responsibility for some function of his employment. 

            In the instant case, Thomas performed the functions of his employment with the information that he had, notwithstanding the tragic results.  Thomas had no supervisory responsibility for Graves.  Thomas was told by Graves that his crew would be working on a task that would take approximately two hours.  Thomas never received any subsequent, contrary information.  In fact, at approximately 9:00 a.m., Thomas received the radio call from someone in Graves’s crew stating that the Metrodome steam could come back on-line. 

            We find that Thomas’s actions on the day of this accident, however they fit into the unfortunate sequence of events ending in the deaths of two people, do not constitute a breach of personal duty to Graves.  Thomas was acting within his administrative responsibilities as plant operator.  This court cannot impose liability on a co-employee because of his general administrative responsibility for some function of his employment.  To do so would be to undermine the fundamental purpose of the workers’ compensation laws. 

In light of our resolution of the personal duty issue, we do not reach the issue of gross negligence.  The district court’s grant of summary judgment is affirmed.