This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-01-614

 

 

Rikku Silvola,

Appellant,

 

 

vs.

 

Kamden Vedder, et al.,

Defendants,

Alexandra Mason, et al.,

Respondents,

Crystal Deschampe, et al.,

Respondents,

Jill Mizereks, et al.,

Respondents.

 

Filed December 26, 2001

Affirmed

Toussaint, Chief Judge

 

St. Louis County District Court

File No. C200600306

 

 

William D. Paul, 1217 East First Street, Duluth, MN 55805 (for appellant)

 

Stephen R. Bick, Maki, Durst, Ledin, Bick & Kanuit, S.C., 1109 Tower Avenue, Superior, WI 54880 (for respondents Mason, et al)

 

Eric D. Hylden, Rebekka L. Eisenmenger, Downs, Reyelts, Leighton, Bateman & Hylden, Ltd., 700 Providence Building, Duluth, MN 55802-1801 (for respondents Deschampe, et al.)

 

Terrence R. Peterson, Suite 510, 7401 Metro Boulevard, Edina, MN 55439 (for respondents Mizerek, et al.)

†††††††††† Considered and decided by Toussaint, Chief Judge, Crippen, Judge, and Foley, Judge.*

 

U N P U B L I S H E D† O P I N I O N

 

TOUSSAINT, Chief Judge

 

Appellant Rikku Silvola, the owner of an abandoned school building, sued 13 teenagers and their parents for negligence and joint liability after the teenagers trespassed on his property and one of them, previously dismissed from this lawsuit, accidentally started a fire that destroyed the building.† Because the district court correctly granted summary judgment for the teenagers, concluding that there was no factual basis for a joint enterprise and they had no duty to report the fire or otherwise protect the appellant, we affirm.

 

D E C I S I O N

 

On appeal from a summary judgment, this court asks 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).† This court must view the evidence in a light most favorable to the nonmoving party, Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993), but is not bound by nor need give deference to the district courtís application of the law.† Frost-Benco Elec. Assín v. Minn. Pub. Utils. Commín., 358 N.W.2d 639, 642 (Minn. 1984).

Joint Enterprise

There is direct evidence in the record that Adam Anderson, who was dismissed by stipulation from this lawsuit, alone set fire to Silvolaís building.† Silvola argues that the remaining defendants, respondents on appeal,[1] are negligent under the theory of joint enterprise.†

If a group engages in a joint enterprise, one memberís act can be attributed to the others.† Joint enterprise has two components:† (1) a mutual understanding for a common purpose; and (2) a right to a voice in the direction and control of the means used to carry out the common purpose.† Ruth v. Hutchinson Gas Co., 209 Minn. 248, 259, 296 N.W. 136, 140 (1941).

The district court found no common purpose and no common control among the 13 teenagers.† The court found there was an informal gathering of teenagers for a social expedition; the only shared element was that they generally agreed to caravan to the abandoned school.† See Delgado v. Lohmar, 289 N.W.2d 479 (Minn. 1979) (when one hunter shot third party, no joint enterprise and liability for group of hunters who agreed to meeting place, how to proceed, and how to share game, but did not share transportation, expenses or equipment).† All felt that they could control their own actions and did not
think that they had the right to control the othersí behavior.† See Spannaus v. Otolaryngology Clinic, 308 Minn. 334, 339, 242 N.W. 2d 594, 597 (Minn. 1976) (anesthesiologist was virtually autonomous and surgeon is not responsible for anesthesiologistís independent procedures).† Accordingly, the district court correctly found that there was no genuine issue of material fact on the issue of joint enterprise.

Duty Owed to Silvola

Silvola argues that the teenagers owed him a duty to report the fire.† He contends that policy considerations mandate that the court impose a duty on trespassers.†

††††††††††† Generally, a person has no duty to act for the protection of another person.† Gilbertson v. Leininger, 599 N.W.2d 127, 130 (Minn. 1999).† A legal duty to act depends on (1) the relationship of the parties; and (2) the foreseeability of the risk involved.† Erickson v. Curtis Inv. Co., 447 N.W.2d 165, 168-69 (Minn. 1989).† The existence of a legal duty to protect another person generally presents an issue for the court to decide as a mater of law.† Larson v. Larson, 373 N.W.2d 287, 289 (Minn. 1985).

Relationships giving rise to duties include: common carriers, innkeepers, possessors of land who hold it open to the public, and persons who have custody of another person under circumstances in which that other person is deprived of normal opportunities of self-protection.† Harper v. Herman, 499 N.W.2d 472, 474 (Minn. 1993); see also Erickson, 447 N.W.2d at 170 (parking ramp facility owes its customers duty to use reasonable care to deter criminal activity).† Common to the relationships giving rise to a duty is some entrustment of oneís care in another.† The respondents clearly did not accept, expressly or impliedly, any responsibility for Silvola.† The respondents similarly exercised no custody or control over Silvola.† Nothing in the record suggests that they had any knowledge of his existence or ownership of the building.† Silvola simply argues that he was vulnerable and dependent on them.† Silvolaís vulnerability and the respondentsí power to act however are not dispositive factors.† See, e.g., Gilbertson, 599 N.W.2d at 131-32 (no duty of host to dinner guest staying overnight); Clark v. Whittemore, 552 N.W.2d 705, 708-09 (Minn. 1996) (no duty of trailer park manager to children residing at the park); Donaldson v. Young Womenís Christian Assín, 539 N.W.2d 789, 793 (Minn. 1995) (no duty of YWCA lodging house to one of its residentís).† Therefore, the district court correctly concluded that there was no legal duty.††

Appealability

Respondents Sherlock, et al. argue that this appeal is improper because the final judgment disposing of the claims against them was entered October 25, 2000.† The district court determined that the October 25 judgment was not final because it did not adjudicate the rights of settling defendants and others, and on March 9, 2001, granted Silvolaís motion to amend it to make it final as to the respondents.† The district court correctly determined that the October 25 judgment was not final because it did not adjudicate all the claims of all the parties and did not state that final judgment be entered because there was no just reason for delay.† See Olmscheid v. Paterson, 425 N.W.2d 312, 313 (Minn. App. 1988) (settling defendant remained defendant in lawsuit where dismissal was by stipulation only and no judgment adjudicated its rights); Minn. R. Civ. P. 54.02 (requiring for finality express determination that no just reason for delay exists and judgment should be entered).† Therefore, Silvola properly appealed from the courtís March 9, 2001, judgment.

Affirmed.††††††



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

[1] Respondents on appeal are Jill Mizerek, Crystal Deschampe,Sara Sherlock, Adam Shreve, Alexandra Mason, and their parents.† The Sherlocks, Shreves, and Masons are represented by the same counsel and are referred to as the respondents Mason.