This opinion will be unpublished and

may not be cited except as provided by

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






Steven J. Muth, as Guardian ad Litem

for William C. Meyer, a minor,





William A. Meyer, et al.,



John Pierro,




Filed August 1, 2000

Reversed and remanded

Amundson, Judge


Ramsey County District Court
File No. C3-98-9810


Mark R. Kosieradzki and Carol L. O’Gara, Kosieradzki Law Office, 13100 Wayzata Boulevard, Suite 140, Minnetonka, MN 55305 (for appellant)


John M. Kennedy and Mary P. Rowe, Jardine, Logan & O’Brien, PLLP, 444 Cedar Street, 2100 Piper Jaffray Plaza, St. Paul, MN 55101 (for defendant Meyer)



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

U N P U B L I S H E D   O P I N I O N


When appellant was six years old, he drove and lost control of a go-cart owned and maintained by his grandfather, the respondent herein.  Appellant suffered severe injuries and sued his grandfather, claiming negligence and negligent facilitation.  The district court granted summary judgment, finding the grandfather owed no duty to the child, and the conduct of another defendant was a superseding intervening cause of the accident shielding the grandfather from liability.  The district court also determined that the grandfather was not liable for negligent facilitation and later denied a motion for reconsideration and a motion to vacate.  Appellant contends that there were genuine issues of material fact, rendering summary judgment inappropriate.  Further, appellant cites newly discovered evidence and evidence of fraud on the part of the grandfather, and argues that evidence supports a determination that the district court abused its discretion in denying his motion to vacate.  We reverse and remand.


John Pierro is William A. Meyer’s father-in-law, and the grandfather of Christopher Meyer, William C. Meyer (Billy), and John Meyer (Johnny).  Christopher was ten years old at the time of the accident.  Pierro and his wife have owned an all-season lake home since 1992, and often invited the Meyer family there.

Pierro purchased and kept motorized toys such as motorbikes and snowmobiles at the home for his grandchildren to enjoy on their visits.  Both Pierro and Meyer encouraged the children to play with the toys.

Christopher asked Pierro for a motorized go-cart, and Meyer, together with Pierro, acquired one.  Meyer purchased it, and Pierro reimbursed him for it because he preferred to have ownership and control over the instrumentalities at his lake home.

The go-cart and other toys were kept in a locked garage, but both Meyer and Pierro had keys to the garage and Meyer was authorized to open the garage to get the toys out in Pierro’s absence.  When the boys were visiting, the garage was left unlocked.

Billy and Johnny were each enthralled by the go-cart; Pierro and Meyer, however, realized that they were too young and too small to safely operate it and prohibited them from using it.  Pierro realized that the go-cart was a great attraction to the twins—especially to Billy.  The children were repeatedly told by Meyer and Pierro that only Christopher could use the go-cart, but Billy and Johnny persisted in asking both Meyer and Pierro to drive it, and sometimes would sit in it.  Despite his orders not to go near the go-cart, Meyer repeatedly had to chase the children away from it. 

Pierro never told the twins that the go-cart was dangerous, only that it was Christopher’s.  He once told Johnny that he was too small for it, but was afraid that that would only make Johnny more attracted to the go-cart.  Nevertheless, Pierro did not discuss these problems or any possible solutions with the Meyers.  In fact, the last weekend in June (immediately preceding the weekend of the accident), Meyer allowed Billy and Johnny to drive the go-cart while he stood on the back of it.

Pierro invited the Meyer family to the lake home for the Independence Day weekend for a family engagement.  The Meyers arrived on July 1, 1994, intending to stay throughout the next week.  Pierro was to arrive the next day.  Arriving at the cabin, Christopher began to ride the go-cart and the twins rode their bikes.  Christopher had finished driving the go-cart and told his father that he wanted to ride a mini-bike.  While his father went to warm up the mini-bike for Christopher, Billy alighted and began to drive the go-cart.  Eventually, however, he lost control of it, and crashed into a tree, suffering severe injuries.

Billy commenced this action for damages suffered in the accident and claimed both negligence and negligent facilitation on the part of Pierro and the Meyers.  During discovery, Pierro was deposed and questioned with regard to the purpose, ownership and control of the go-cart, any permission given to Billy, how the go-cart was stored and whether any action was taken to restrict the twins’ access to the go-cart.  The court granted summary judgment in favor of Pierro, finding that he could not be held liable for either maintaining an attractive nuisance, or for negligent facilitation.  Regarding both claims, the court relied on the fact that Pierro had not purchased the go-cart for Billy, did not encourage, know or permit Billy to use the go-cart, and stored the go-cart in a locked garage.  Furthermore, the court held that regardless of any negligence on Pierro’s part, the actions of Meyer were a superseding cause of the incident.

After summary judgment was granted, Pierro, without assistance of counsel, wrote several letters to the attorneys and the district court.  A letter dated November 30, 1999, declared that, at his deposition, he had failed to disclose relevant information regarding his role in the accident.  Specifically, Pierro wrote that the weekend prior to the accident, he told Billy he could use the go-cart and demonstrate to everybody that he could operate it.  When Billy replied that Meyer didn’t want him to use it, Pierro alleges he told him:

Here at the lake, I am the boss.  At home your dad is the boss.  I will be talking to your dad and arrangements will be made so you can use the go-cart next weekend on the Fourth of July.

On January 13, 1999, Pierro wrote a second letter, reiterating that he had unequivocally given Billy permission to use the go-cart and that Billy had understood that he had permission.  Furthermore, Pierro clarified that although the garage was locked when the home was vacant, it was unlocked and open whenever the Meyers or the Pierros were using the home.

Billy brought a motion to vacate, which the district court denied, stating:

I am very—I have to say Mr. Pierro’s recent submissions are very suspect in the mind of the court.  And even if they were not, let’s just give him the benefit of the doubt, he didn’t purchase the go-cart for the kid, it doesn’t look to me like he encouraged the use of it by the kid.  The fact that he said that he was going to talk to the father of the kid about him using it on the Fourth of July doesn’t change that fact scenario.

This appeal followed.



On review of a court’s order for summary judgment, this court determines whether, viewing facts in the light most favorable to the party against whom judgment was granted, there are any genuine issues of fact and whether the trial court correctly applied the law.  Offerdahl v. University of Minn. Hospitals & Clinics, 426 N.W.2d 425, 427 (Minn. 1988).

Appellant’s Negligence Claim

A negligence claim requires four elements: (1) the existence of a legal duty on the part of the defendant; (2) breach of that duty; (3) that breach of duty proximately causing the plaintiff’s injury; and (4) damages.  Gilbertson v. Leininger, 599 N.W.2d 127, 130 (Minn. 1999).

The district court ruled that Pierro owed no duty to his grandson.  The existence of a legal duty to protect another person is an issue of law, which this court reviews de novo.  Id.  In order to establish a duty, Billy relies on the doctrine of the attractive nuisance, which provides:

A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if

     (a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

     (b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and

     (c) the children because of their youth do not * * * realize the risk involved in intermeddling with it * * *, and

     (d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

     (e) the possessor fails to exercise reasonable care to eliminate the danger or to otherwise protect the children.

Restatement (Second) of Torts § 339 (1965).

Pierro suggests this provision does not apply because Billy was not a trespasser.  But this section’s application has not been limited to trespassers.  See, e.g. Lee v. State, Dept. of Natural Resources, 478 N.W.2d 237, 239 (Minn. App. 1991) (discussing section 339 with regard to children in a public park), review denied (Minn. Feb. 10, 1992).  If section 339 creates a duty to those parties that enter the land without the knowledge of the possessor, shouldn’t this duty apply to those that the possessor knows are on the property?

The evidence presented at the summary judgment hearing established that Pierro owed a duty to Billy.  The record is replete with facts indicating that Pierro knew, or should have known, that Billy was likely to use the go-cart without authorization.  The children had repeatedly asked to use the go-cart, often needed to be shooed away from it, and had been seen sitting in it.

Pierro’s suggestion that the go-cart posed no inherent risk because it was stored in a locked garage does not accurately reflect the facts.  The fact that the go-cart was locked up when nobody was at the cabin is irrelevant.  When the twins were at the cabin, the garage was kept unlocked and open, despite the admission of resident adults that they knew the go-cart was too dangerous for the twins to drive.

Pierro’s argument that Billy appreciated the risk because he was told not to use the go-cart unsupervised is also flawed.  There was no evidence that Billy was told that the go-cart was dangerous.  Of course, whatever Billy was told or heard, it certainly is not clear that Billy, a six-year-old boy, appreciated the risk.  The very fact that he sought to use it indicates that he did not understand that the go-cart was dangerous.

Pierro, citing Lee, notes that a landowner has no duty to prevent dangers that should be obvious even to unsupervised children, 438 N.W.2d at 339, and argues that he exercised reasonable care to protect the children by giving them numerous warnings to stay away from the go-cart.  But Pierro knew that the children were not heeding those warnings because they nevertheless repeatedly played with the go-cart.  In Lee, the “obvious” danger was the general danger of lakes and water, a natural feature that children can be expected to learn about at a young age.  See id.  Here, the danger stems from a six-year-old child’s inability to effectively use or even reach the control pedals of a machine that is intended for older and bigger children.  Such dangers may not be obvious to a six-year-old child.

Superceding Cause

The district court concluded that even if Pierro breached a duty to Billy, the acts of Meyer operated to derail any causal relationship between Pierro’s negligence and Billy’s injuries.  Specifically, the court found that Billy could not have started the go-cart himself and that Meyer’s act of leaving the go-cart running and unattended was a superseding cause of the injuries.  But Pierro admits the facts regarding to whether the go-cart was left running were vague and unspecific.  Accordingly, this finding of fact is without reliability.

Regardless of whether the go-cart was left running, Pierro argues that Meyer’s other acts were a superseding cause.  This doctrine operates to insulate the direct cause of the first actor because of the negligence of a second actor.  Hafner v. Iverson, 343 N.W.2d 634, 637 (Minn. 1984).  A cause is a superseding cause if: (1) it happened after the original negligence; (2) it did not happen because of the original negligence; (3) it changed the natural course of events to make the result different from what it would have been; and (4) the original wrongdoer could not have reasonably anticipated this event.  Ruberg v. Skelly Oil Co., 297 N.W.2d 746, 750 (Minn. 1980).

Although the facts clearly establish the first three elements, Pierro cannot establish the foreseeability element.  Pierro suggests that he could not have reasonably anticipated the specific series of Meyer’s acts that in fact occurred: unlocking the garage, taking out the go-cart, and leaving it unattended to warm up the mini-bike.  But Pierro himself testified that usually upon arrival, Meyer would open up the garage and the kids would play with the toys.  As all of the toys would require starting and warming up, it was certainly foreseeable that Meyer might have to leave one toy to start another.  Pierro also argues that he could not foresee that Billy would use the go-cart without permission and without the presence of his father.  But given the evidence that the twins had to be repeatedly shooed away from the go-cart, Billy’s disobedience with regard to the go-cart was entirely foreseeable.  This argument is without application. Billy’s negligence is not at issue here.  All that is relevant is the foreseeability of Meyer’s causal acts.  Accordingly, the district court erred in granting summary judgment with regard to Billy’s negligence claim.

Negligent Facilitation

The district court erroneously stated that negligent facilitation is not an established claim in Minnesota.  Negligent facilitation is a negligence theory based on the Restatement (Second) of Torts § 390 (1965).  Minnesota has adopted the Restatement (Second) of Torts § 390 regardless of whether it is labeled negligent facilitation or negligent entrustment.  See, e.g., Axelson v. Williamson, 324 N.W.2d 241, 243-44 (Minn. 1982) (recognizing negligent entrustment as described in section 390).

However, the district court also found that there was no evidence in the record to support a finding of negligent facilitation. 

Section 390 provides:

One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.

Restatement (Second) of Torts § 390.  The district court found section 390 to be inapplicable because Pierro “neither purchased the [go-]cart for plaintiff, nor did he encourage or know of its use by him.”

Billy argues the trial court had sufficient facts to find negligent entrustment because Pierro provided the go-cart to Billy, knowing it was not safe.  However, section 390, by its plain language, requires more than simply providing a chattel.  It requires one party to supply the chattel to another for the use of that intended party.  Although Pierro may have intended, at some time, to allow Billy to use the go-cart, at the time of the accident the go-cart was only supplied for Christopher’s use.  At the time of the summary judgment motion there was no evidence that Pierro supplied or even encouraged Billy to drive the go-cart.  Accordingly, the district court did not err by granting summary judgment with regard to Billy’s negligent entrustment claim.


Billy also argues that the district court erred by denying his motion to vacate in light of Pierro’s letters.  Generally, an order denying a motion to vacate a final judgment is not appealable.  King v. Carroll, 356 N.W.2d 449, 451 (Minn. App. 1984).  However, “[o]n appeal from a judgment,” this court “may review any order involving the merits or affecting the judgment.”  Bush Terrace Homeowners Ass'n, Inc. v. Ridgeway, 437 N.W.2d 765, 770 (Minn. App. 1989), review denied (Minn. June 8, 1989) (quoting Minn. R. Civ. App. P. 103.04).  “Because a motion to vacate by its nature asks the trial court to reassess its final judgment, an order denying the motion will, thus, involve the merits or affect the judgment entered.  Id.  "The decision of whether to vacate a judgment is within the discretion of the trial court, and its decision will not be reversed absent an abuse of discretion."  Richardson v. Employers Mut. Cas. Co., 424 N.W.2d 317, 320 (Minn. App. 1988), review denied (Minn. Aug. 24, 1988).

Billy argues that Pierro’s pro se letters were both newly discovered evidence and evidence of fraud.  Either might compel the district court to vacate judgment.  Minn. R. Civ. P. 60.02.  But for either claim of error to succeed, the district court must have ignored material facts revealed in the letters.  See Halloran v. Blue & White Liberty Cab Co., 253 Minn. 436, 442, 92 N.W.2d 794, 798 (1958) (requiring fraud to be as to “material circumstances”).  A fact is material when it aids the establishment of a claim so as to have an effect on the claim’s outcome.  Zappa v. Fahey, 310 Minn. 555, 556 245 N.W.2d 258, 259-60 (1976).

In denying the motion to vacate, the district court described Pierro’s letters as “very suspect” and “very suspicious” and explained the indicia of unreliability in the letters.  Regardless of whether there were indicia of unreliability with regard to the letters, it is inappropriate for the court to assess the reliability of such evidence.  See Colonial Ins. Co. of California v. Anderson, 588 N.W.2d 531, 533 (Minn. App. 1999)  (stating that assessments of credibility are fact questions for the jury).

Because we are reversing the grant of summary judgment with regard to the negligence claim, we need not address that claim in this context.  But with regard to the negligent facilitation claim, the court’s denial of the motion to vacate the judgment is still relevant.

In denying the motion to vacate, the district court concluded that Pierro did not encourage Billy’s use of the go-cart, stating,

it doesn’t look to me like [Pierro] encouraged the use of it by the kid.  The fact that he said that he was going to talk to the father of the kid about him using it on the 4th of July doesn’t change that fact scenario.


It is now suspect that Pierro’s letters do not indicate that he actually gave Bill permission to drive the go-cart, but only told him that Pierro and Meyer would discuss the matter.

But, according to his letter, Pierro did not just indicate that he was going to discuss the matter with Meyer.  Rather, he told Billy that he was the authority on the matter, and that arrangements would be made for him to drive the go-cart.  This statement clearly permits an inference that Pierro encouraged and permitted Billy’s use of the go-cart.  In fact, the distinction is irrelevant.  Billy could easily have assumed that Pierro would inform Meyer during the intervening week.  Even if Pierro did not give Billy “carte blanche” approval to drive the go-cart, the ability to make subtle distinctions between “carte blanche” approval and approval conditioned upon two people having a discussion outside his presence cannot be reasonably expected of a six-year-old child.  This is especially true when Billy was never given any indication that he should wait to drive the go-cart until he was positive that Meyer had been informed.  This is coupled with the fact that on the weekend before the incident, Meyer allowed the twins to operate the go-cart while he rode on the back of it.  While children are not very good at listening to parents, they are superb in their imitation.

In assessing Pierro’s letters, the district court again relied on the fact that Pierro did not purchase the go-cart for Billy.  However, even if the go-cart was initially purchased with only Christopher in mind, evidence abounds that all of the children would be allowed to use it once they were deemed to be old enough.  If, as alleged in his letters, Pierro permitted Billy to drive the go-cart, Billy then became a member of the class of persons for whom the go-cart was purchased.  Accordingly, the district court erred in denying Billy’s motion to vacate summary judgment on his negligent facilitation claim.

Reversed and remanded.