This opinion will be unpublished and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


Minn-Chem, Inc.,


Richway Industries, Ltd., et al.,

Ford Motor Company,


Steven Hertling, et al.,

Century Manufacturing Company, et al.,

Ford Motor Company,


Century Manufacturing Company,
Defendant and Third-Party Plaintiff,


Minn-Chem, Inc.,
third-party defendant,

Filed August 1, 2000
Klaphake, Judge

Brown County District Court
File No. C7-94-698

Keith A. Hanson, Stephen M. Warner, Fetterly & Gordon, P.A., 1800 U.S. Bank Place, 650 Third Avenue S., Minneapolis, MN  55402 (for respondent)

Wayne D. Struble, C. Paul Carver, Bowman & Brooke, LLP, Suite 2600, 150 S. Fifth St., Minneapolis, MN  55402 (for appellant)

            Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N


            Following a May 1994 fire that destroyed a facility housing its office and warehouses, Brown County Agricultural Services (BCA)[1] brought this action against a number of defendants, including Century Manufacturing Company (Century), a battery manufacturer; M.H. Rhodes, Inc. (Rhodes), a timer manufacturer; Raven Industries, Inc. (Raven), a crop sprayer manufacturer; and Richway Industries (Richway), a foam marker manufacturer.  BCA later settled with all defendants except Raven and added appellant Ford Motor Company (Ford) as a defendant.  A few days before trial, BCA settled with Raven and the case proceeded against Ford only.

At trial, BCA claimed that a faulty ignition switch in a 1985 Ford F250 pickup truck triggered a chain of events that led to the fire.  Ford claimed that other products, including the battery charger, timer, crop sprayer, and foam marker caused the fire.

In response to special verdict questions, the jury found that the ignition switch in the Ford truck was “in a defective condition unreasonably dangerous to the ordinary user because of its design when the truck left the control of Ford” and that the defective condition of the ignition switch was a direct cause of the fire.  With respect to the other manufacturers, the jury found that the Century battery charger and Rhodes timer were not defectively designed, and that the Richway foam marker system and Raven sprayer system were defectively designed, but not direct causes of the fire.  The jury calculated BCA’s damages at $2,100,000, and assigned 70 percent of the total fault to Ford and the remaining 30 percent to BCA.

Ford appeals, challenging the trial court’s denial of its motions for sanctions based on BCA’s alleged spoliation of evidence of the fire scene.  Ford also challenges the trial court’s denial of its motion for a new trial on the grounds that the verdict is contrary to the evidence and its refusal to instruct the jury regarding mitigation of property damages.  Because the trial court did not abuse its discretion in any of its rulings or otherwise erroneously apply the law, we affirm.


            A trial court’s decisions regarding sanctions for spoliation of evidence, denial of new trial motions on the grounds of insufficient evidence, and refusal to give requested jury instructions are all discretionary.  Patton v. Newmar Corp., 538 N.W.2d 116, 119 (Minn. 1995) (spoliation); Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986) (jury instructions); Eliason v. Textron, Inc., 400 N.W.2d 805, 807 (Minn. App. 1987) (new trial motion).  This court must view the evidence in the light most favorable to the verdict and will not reverse absent an abuse of that discretion. Hauenstein v. Loctite Corp., 347 N.W.2d 272, 275 (Minn. 1984).


            First in April 1998 and again in February 1999, a few days before trial began, Ford moved to exclude evidence based on BCA’s alleged spoliation of the fire scene.[2]   Spoliation is defined as the destruction of evidence or the failure to preserve property for another’s use in pending or future litigation.  Federated Mut. Ins. Co. v. Litchfield Precision Components, Inc., 456 N.W.2d 434, 436 (Minn. 1990).  A sanction for the spoliation of evidence is appropriate only if the opposing party can demonstrate that it was prejudiced by the spoliation.  Patton, 538 N.W.2d at 119.

            In this case, Ford has not shown that BCA destroyed or failed to preserve evidence that might have been relevant.  Importantly, BCA did not have control of the fire scene and was not wholly responsible for destruction of the scene during the clean-up process.  See Kmetz v. Johnson, 261 Minn. 395, 403, 113 N.W.2d 96, 101 (1962) (spoliation applies when missing item was in party’s “[e]xclusive control and possession”).  Rather, due to the large quantities of chemicals stored at the facility, state authorities declared the scene an environmental hazard and ordered the scene cleaned up as quickly as possible.

            In addition, unlike other cases in which spoliation has been found, BCA identified, removed, and carefully preserved all evidence from the area where the fire appeared to have started and which was identified as possible causes of the fire.  Cf. Patton, 538 N.W.2d at 117-18 (location of motor home not known and components that had been removed and retained by plaintiffs’ expert had been lost); Hoffman, 587 N.W.2d at 71 (although vehicle was still in existence, burn patterns on its hood had been partially obliterated by corrosion due to outside storage, and parts of antilock brake system, which plaintiffs’ experts claimed to have caused fire, were damaged or lost).  Although Ford argues that BCA’s choice of which artifacts to preserve begs the question, given the unique circumstances of this case due to the safety concerns that prompted the quick clean-up process,[3] the fact remains that BCA, with the assistance of a deputy state fire marshall, necessarily decided which items to remove and preserve.

            Nor has Ford shown that it was prejudiced.  Rather, Ford’s opportunity to examine and inspect the preserved artifacts was equal to that of BCA, Raven, and the other manufacturers.  When Ford was notified of the first two artifact inspections, it declined to attend or participate; Ford’s conduct suggests that it would not have investigated even if it had received notice before the scene was cleared.  And although Ford claims that it was prejudiced because it was unable to identify other possible sources of the fire, it was able to offer alternative theories at trial by arguing that the Century battery charger caused the fire and that the fire started somewhere outside the truck.

            Because we cannot conclude that the trial court abused its discretion, we affirm its denial of Ford’s motions for sanctions.  See Patton, 538 N.W.2d at 119 (reviewing court may reverse trial court’s decision “only when it is clear that no reasonable person would agree [with] the trial court’s assessment of what sanctions are appropriate”) (citation omitted).


            Ford challenges the jury’s findings that the Century battery charger and the Rhodes timer were not defective and unreasonably dangerous.  Ford insists that the only evidence regarding the condition of the battery charger and timer established that they were defective and unreasonably dangerous.  Although BCA’s experts did testify that these products had failed, their opinions were elicited during Ford’s cross-examination and were based on affidavits prepared prior to the experts’ examination of the Ford ignition switch.  On direct examination, one of these experts explained that the Ford ignition switch triggered the chain of events that led to the fire and that the fire would have occurred even in the absence of the battery charger.  Thus, although the evidence suggests that the battery charger and timer were defective, the trial court did not abuse its discretion in allowing the verdict to stand.  See Hauenstein, 347 N.W.2d at 275 (if special interrogatory answers can be reconciled on “any theory,” verdict will stand).

            Ford also challenges the jury’s findings that although the Raven sprayer and the Richway foamer were defective and unreasonably dangerous, they were not direct causes of the fire.  Ford argues that the jury’s verdict is inconsistent because the jury could not simultaneously find the Ford ignition switch at fault but exonerate the sprayer and marker systems, basically because all of these products were located in the truck. But the jury could have accepted evidence suggesting that the Ford switch was the initial origin of the fire and that it caused the failure of the sprayer and marker systems.  We cannot conclude that the trial court abused its discretion in denying Ford’s motion for a new trial.  See LaValle v. Aqualand Pool Co., 257 N.W.2d 324, 329 (Minn. 1977) (trial court in better position than appellate court to determine whether verdict contrary to preponderance of evidence).


            Ford requested that the trial court give the following modified version of CIVJIG 186, which deals with mitigation of damages:  “Plaintiffs’ damages for harm to their property should not include any loss which plaintiffs could have prevented by reasonable care and diligence.”  See 4 Minnesota Practice CIVJIG 186 (1986).[4]  Ford claimed that BCA’s negligence in constructing the building, to the extent it contributed to the spread of the fire, warranted this instruction.

The trial court decided to instruct the jury on comparative fault, CIVJIG 202, as follows:

The law requires that fault be apportioned among those parties found to be at fault in causing plaintiff’s property damage.  Fault may consist of negligence or sale of a product in a defective condition unreasonably dangerous to the user’s property.  If you, by your answers to questions 2, 4, 6, 8, 10, 12 and 14, have determined that two or more parties or entities are at fault and that their fault was a direct cause of plaintiff’s property damage, you must apportion fault among them by answering question 15.


4 Minnesota Practice CIVJIG 202 (1986).  Questions 13 and 14 of the special verdict form asked the jury: “Did Minn-Chem (BCA) fail to exercise reasonable care for its property?” and “Was this failure to exercise reasonable care a direct cause of property damage to itself?”

            The trial court refused to give Ford’s requested CIVJIG 186 instruction, concluding that the instruction would duplicate the CIVJIG 202 instruction and overemphasize the issue of BCA’s fault.  As a whole, the instructions, including the wording of the special interrogatory questions, covered BCA’s contributory negligence and pre-fire conduct.  In addition, Ford was able to argue these issues to the jury.  As demonstrated by the jury’s apportionment of 30 percent of the fault to BCA, the jury appears to have understood Ford’s arguments and correctly applied the instructions.  We cannot conclude that the trial court abused its discretion by refusing to give Ford’s requested jury instruction.  See Alholm v. Wilt, 394 N.W.2d 488, 490-91 (Minn. 1986) (trial courts allowed considerable latitude in selecting language of jury instructions).



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


[1]  BCA is owned by Minn-Chem, Inc.  Prior to trial, the trial court granted a motion to designate Minn-Chem as the real party in interest and issued an order amending the case name to substitute Minn-Chem for BCA.

[2]  Ford made this second motion, suggesting that this court’s abbreviated spoliation discussion in Hoffman v. Ford Motor Co., 587 N.W.2d 66 (Minn. App. 1998) changed the law regarding spoliation of fire scenes.  As the trial court noted, Ford could not have made its motion prior to the scheduling deadlines because Hoffman was issued after those deadlines had passed.  Nonetheless, Ford cannot dispute that Hoffman was released almost two months before it made its second motion and that the same firm representing Ford in this case also represented Ford in Hoffman.  Thus, in denying Ford’s second spoliation motion, the trial court could have been influenced by the untimely nature of that motion.

[3] Of course, every fire scene might be described as unique.  It would be a rare case in which a plaintiff could preserve an entire fire scene until all potential defendants were notified and given an opportunity to inspect.

[4] The Committee on Jury Instruction Guides recently published a new edition of the CIVJIGs, 4 & 4a Minnesota Practice CIVJIG (1999).  The CIVJIGs discussed here have been renumbered, but the basic wording of each remains the same.