This opinion will be unpublished and

may not be cited except as provided by

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






Cindie Tiemann, as Trustee for the Heirs

 and Next of Kin of Nathaniel Tiemann,





Thomas Hess, as Special Administrator for the Estate of Mark Hess


James Tiemann, Defendant,

Ross Allen Reisner, et. al.,



Filed January 15, 2002


Randall, Judge


Cass County District Court

File No. C8-00-397



Joel W. Brodd, Brian H. Sande, Doar, Drill & Skow, S.C., Office Park, P.O. Box 460, Baldwin, WI  54002-0460 (for appellant)


Paul R. Aamodt, 2829 South University Drive, P.O. Box 966, Fargo, ND  58107 (for respondents)



            Considered and decided by Amundson, Presiding Judge, Randall, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

R. A. RANDALL, Judge

            A group of four adults and two children went on an ice-fishing trip.  The group used two vehicles, and one of the vehicles went through the ice.  Respondents were in the other vehicle, which made it safely to shore.  Appellant, whose child drowned in the accident involving the vehicle that went through the ice, sued respondents under a joint enterprise theory.  The district court granted summary judgment in favor of respondents, finding as a matter of law that they had not participated in a joint enterprise with the occupants of the vehicle that had gone through the ice because respondents had no legal right to control that vehicle.  We affirm.


            During the weekend of February 27, 1999, a group of six people traveled from Wisconsin to Minnesota's Lake Winnibigosh to go ice fishing.  The group took two automobiles: a van and a Suburban.  The van was owned by respondent Joseph Anthony Mans's father-in-law, and Mans was accompanied in the van by respondent Ross Allen Reisner.  They shared expenses for the van.  The Suburban was owned and operated by deceased defendant Mark Hess, who was accompanied by his son Bradley Hess, as well as defendant James Tiemann and deceased Nathaniel Tiemann (Nate), James Tiemann's son.  The two adult men in the Suburban shared gas expenses during the trip.  Throughout the weekend-long ice-fishing trip, the groups stayed with their respective vehicles; no one rode in a car other than the one in which he originally traveled.

            Each member of the group was responsible for his own fishing license, tackle, and rod.  The group shared the ice auger to drill holes in the ice, but each fisherman used his own equipment to fish.  The group shared food from a cooler while fishing on the ice, but each was responsible for the cost of his own meals and drinks (expenses incurred by the minor children were covered by their respective fathers).  The group stayed at a resort called the Gosh Dam Place, and the four adult men shared the cost of the room equally. 

             The ice-fishing trip went as planned on Thursday, Friday, and Saturday.  The fishing on Saturday afternoon was not very good, so Mans and Reisner decided to pack up their things and head further out onto the lake to try their luck.  The understanding was that if they did not return in a few hours, the rest of the group would pack up and drive down the ice road until they found Mans and Reisner because their absence would mean better fishing elsewhere.  A few hours passed, and the remaining group of Tiemann and his son Nate and Hess and his son Bradley packed up their fishing gear and drove down the ice road in search of what they hoped would be better fishing with Mans and Reisner.

            Upon finding Mans and Reisner, it was apparent that the fishing was better in the new location.  The group decided to stay and fish until they caught their limit of perch.  By the time they reached this goal, it was dark, and because of the darkness, both cars missed the appropriate turn on the ice road that would have taken them back to the resort.  The parties continued driving on the ice until they reached Pines Resort, which is another lodge on the lake, and there both vehicles attempted to drive off the ice and onto land.  Only the Suburban was able to make it up the steep embankment.  Mans, the driver of the van, attempted to drive off the ice in this location several times to no avail.  Mans did not want to hit the embankment too hard for fear of damaging his father-in-law's van, and he discontinued attempts to leave the lake.

            Mark Hess, driving the Suburban, decided to leave the safety of land and return to the ice to see if he could be of any help to the driver of the van.  Tiemann, a passenger in the Suburban, and Mans discussed how they were going to get the van off the ice.  As they talked, the group saw car headlights on the horizon and decided that it was probably Plug Hat Landing, the place where the group entered the ice that morning.  They decided that rather than heading back the way they came, they should make a beeline toward what they believed was Plug Hat landing.  The men were aware that they were near the lake's dam.  Reisner expressed reservations about the plan, fearing they might hit open water if they got too close to the dam.

The ice was covered with approximately four inches of standing water, and the Suburban led the way because it had four-wheel drive.  The van followed directly behind the Suburban.  Tragically, the Suburban only drove a few hundred feet before the front end disappeared into the water, and shortly thereafter the entire vehicle disappeared from view.  Upon seeing the Suburban go into the water, Mans immediately put the van into reverse.  When the van was back a few hundred feet, Mans and Reisner got out and heard Tiemann calling for help.  Mans and Reisner had nothing to throw to Tiemann to help pull him to safety, and they were afraid to get too near the open water, so they got into the van and sped off towards the embankment looking for help.  This time they approached the embankment at full speed and had no trouble getting the van off the ice.  They entered Pines Resort and called the authorities for help.  Unfortunately, help did not arrive in time.  Although Tiemann was able to escape from the Suburban and save Bradley Hess, both Mark Hess and Nate Tiemann drowned in the accident.

Appellant Cindie Tiemann sued Mans, Reisner, Tiemann, and Mark Hess's estate under a joint enterprise theory, which she claimed contributed to the wrongful death of her five-year-old son, Nate.  Tiemann and Hess's estate were dismissed pursuant to a settlement agreement.  Mans and Reisner moved for summary judgment, asserting that there was no genuine issue of material fact and that they were entitled to judgment as a matter of law.  Appellant moved for summary judgment asserting the same argument.  The district court granted summary judgment in favor of Mans and Reisner, finding that there was no genuine issue of material fact and, as a matter of law, the group was not engaged in a joint enterprise. 


            The parties agree that no genuine issue of material fact exists in this case and that the legal determination as to the issue of joint enterprise is dispositive.  In such a case, the district court may decide the issue as a matter of law, subject to de novo review by an appellate court.  O'Malley v. Ulland Bros., 549 N.W.2d 889, 897-98 (Minn. 1996).  Additionally, the district court errs if it submits the issue to a jury when the party's activities would not rise to the level of a joint venture or joint enterprise as a matter of law.  Weber by Sanft v. Goetzke, 371 N.W.2d 611, 616 (Minn. App. 1985), review denied (Minn. Sept. 26, 1985).  Under a summary judgment standard, an appellate court must review the record to determine whether there is any genuine issue of material fact and whether the district court erred in its application of the law to the facts.  O'Malley, 549 N.W.2d at 892.  In its review, an appellate court must take the facts in the light most favorable to the party against whom summary judgment was granted.  Schleicher v. Lunda Const. Co., 406 N.W.2d 311, 312 (Minn. 1987).

Further, when the facts are in dispute, whether a joint enterprise exists is for the fact-finder to determine.  Graindealers Mut. Ins. Co. v. Cady, 318 N.W.2d 247, 250 (Minn. 1982).  But, if there are no fact issues in dispute, a party is not entitled to a jury trial.  In re Peterson, 253 U.S. 300, 310, 40 S. Ct. 543, 546 (1920).  Because the facts were not in contention, the issue before the district court required the court to apply the pertinent law to the facts of the case.  When the activities of a group do not, as a matter of law, amount to a joint enterprise, summary judgment is appropriate.  Delgado v. Lohmar, 289 N.W.2d 479, 483 (Minn. 1979). 

            A joint enterprise exists if there is

(1)    a mutual undertaking for a common purpose, and (2) a right to some voice in the direction and control of the means used to carry out the common purpose.

Murphy v. Keating, 204 Minn. 269, 273, 283 N.W. 389, 392 (1939).[1]  In Murphy, a group of teachers went on a cross-country road trip hoping to secure a pay raise by obtaining additional educational credits. Murphy, 207 Minn. at 272, 283 N.W. at 391.  One of the teachers provided her car, and the rest agreed to share in the driving and cost of gas.  Id. at 272, 283 N.W. at 391-392.  Although one of the teachers was unable to drive a car, she agreed to keep track of the group's expenses and baggage.  Id. at 272, 283 N.W. at 392. Each had equal input as to what route to take and when to stop.  Id.  The supreme court found that the women were engaged in a joint enterprise because the overall operation of the trip essentially gave each woman a right to control the vehicle.  Id. at 275, 283 N.W. at 393.

            Here, the group had a general common purpose of going ice fishing.  But it cannot be said that, as part of their mutual decision to enjoy some recreational ice fishing together, they mutually discussed in advance and planned out what would be done in the event of an unanticipated emergency (one with a tragic result) as happened here.  Appellant argues vigorously that this case should be controlled by Murphy and argues that the possibility or opportunity to control is determinative rather than actual "hands-on physical control" because in Murphy, one of the four school teachers did not drive cars at all but was assigned a job of record keeping.

Murphy does state the general proposition concerning a joint enterprise analysis.  But Murphy, like this case, is fact specific.  We do not know, for instance, how Murphy would have turned out if the car had stalled in a deserted desert area and the four school teachers, after a discussion regarding whether they should walk "north" or "south" for water and help, ended up guessing wrong and perishing from exposure and thirst. 

In this case, respondents and the deceased driver of the Suburban had several options available when confronted with a totally unexpected emergency.  They could have continued to run the van at the lake's embankment and get to safety, risking some injury to the van rather than risking the injury of continuing to drive across a frozen lake in the dark when they knew open water could be a problem.  Subsequent evidence proved the van could get up the embankment if it got up the speed.  They all could have decided to walk off the ice and get into the Suburban, drive to the nearest resort, and solicit help, probably in the nature of a towing vehicle, a lengthy chain, and a "Come-Along."  They could have driven to a resort in the Suburban and left the van on the ice for the night with the thought of coming back in the morning when it was light and then find a way to drive the van off the ice safely.  That the driver of the Suburban did not insist on leaving his vehicle and its occupants in a place of safety, but rather came back on the ice and agreed to lead because of his four-wheel drive, a humanitarian gesture, should not now culminate in joint liability for a group of friends who were simply "guessing in the dark" as to how to handle a totally unexpected serious situation. 

It is questionable that this emergency decision to continue across the ice toward what they felt was Plug Hat Landing was "a common purpose" within the meaning of cases dealing with joint enterprise.  Assuming, for the sake of argument, that the first prong of the joint enterprise test, a mutual undertaking for a common purpose, is satisfied, we still must examine the second prong.  Both prongs of the test must be met before a joint enterprise exists as a matter of law.  Delgado, 289 N.W.2d at 482.  A joint enterprise exists where the parties either had physical control of the instrumentality that caused the injury or the person had a legal right to control the instrumentality that caused the injury.  See Olson v. Ische, 343 N.W.2d 284, 288 (Minn. 1984) (rejecting joint enterprise theory against passenger because passenger had no legal right to control car operated by intoxicated driver); Pierson,286 Minn. at 168, 174 N.W.2d at 714-15 (finding because husband and wife both had legal right to control stalled vehicle, no physical control was necessary, therefore joint enterprise existed).  In joint enterprise cases when there was no physical control of the offending instrumentality, courts have focused primarily on the legal right to control the instrumentality that caused a plaintiff's injury.  As long as there is a legal right to control, courts may find a joint enterprise even if one of the parties to the joint enterprise was not present at the time of injury.  Auto Owners Ins. v. Reinsurance Ass'n, 514 N.W.2d 604, 607 (Minn. App. 1994).  Legal control requires that the parties have an enforceable right to control one another.  Weber, 371 N.W.2d at 616.  

Focus on the overall operation of group activity is illustrated in Ruth v. Hutchinson Gas Co., 209 Minn. 248, 296 N.W. 136 (Minn. 1941), where the supreme court found a joint enterprise existed on a hunting trip.  Each member of the group rode together, two in the truck and three in the brooder house towed behind the truck.  Id. at 252, 296 N.W. at 138.  Each member was assigned a task in connection with the trip.  Id. at 259, 296 N.W. at 141.  The group shared all expenses out of a common fund.  Id. at 250, 296 N.W. at 137.  All five members shared the brooder house as sleeping quarters while on the hunting trip.  Id. at 250, 296 N.W. at 138.  Four of the five members of the group died because there was no ventilation for the fumes resulting from heating the brooder house.   Id. at 253-54, 296 N.W. at 139.  The supreme court found that because conflicting evidence existed, the question of joint enterprise was properly submitted to the jury.  Id. at 259-60, 296 N.W. at 141-42.  Additionally, the court considered the overall operation of the hunting trip, particularly sharing expenses and assignment of individual tasks, and found that the jury was justified in finding the evidence showed that a joint enterprise existed.  Id. at 259, 296 N.W. at 141.

In a later hunting case, Delgado, the supreme court decided that while the parties had mutually undertaken to hunt for birds, because the "group of friends was engaged in recreational activity on a gratuitous and voluntary basis," and all had control of their own guns [the instrumentality of the injury], no joint enterprise existed.  289 N.W.2d at 483.  The group planned the route they would take together while hunting, and each member followed the group plan.  Id. at 481.  At least one member of this hunting trip explained he would feel free to warn other members not to shoot if he noticed a dangerous situation.  Id. at 483.  The court considered that the hunting party shared many common purposes, but ultimately determined that because none of the hunters had a right to control the guns that belonged to the other group members, the second prong of the test for joint enterprise was not met.  Id.  See also Weber, 371 N.W.2d at 616 (finding no joint enterprise existed because family clean-up activities to increase resale value of property were gratuitous and voluntary).  As stated above, a review of joint enterprise cases show that they are fact specific.

We conclude the fact situation and analysis in Delgado is close enough to the case here to be persuasive.  There, none of the hunters had the legal right to control the guns belonging to the other group members.  In this case, nothing in the record indicates that the drivers of the Suburban and the van had given up their right to control the options for leaving the lake and the options for driving while on the lake.  The driver of the Suburban did not "have to" leave a place of safety and come back onto the ice.  There is nothing in the record to show that the driver of the van, or any other nondriving adult, had the right to insist that Mark Hess return to the ice after having brought his vehicle to a place of safety.  The record indicates that Hess's willingness to proceed first because his Suburban had four-wheel drive, and the van did not, was nothing more than a practical and gratuitous decision by Hess to help out the driver of the van.

Even when considering the "common purpose" of the ice-fishing trip, appellant has not sufficiently demonstrated that the legal control element of the joint enterprise existed.  The group traveled caravan style, but split up when they felt like it.  When the Mans vehicle left in search of better fishing, the people with the Suburban were free to join the search, meet up with the Mans vehicle later, or even stay where they were for the remainder of the day.  Unlike Murphy and Ruth, the two cars had neither a shared navigator nor an "accountant," nor was anyone assigned an individual task in connection with the trip.  All six participants in the ice-fishing trip were simply engaged in gratuitous and voluntary recreational activity.  As in Delgado, none of the grown men had a legally enforceable right to control the actions of any other group members.  While the group, as any friends would do when confronted with a sudden emergency, discussed various ways to get off the lake, Reisner and Mans did not have a legal right to control the ultimate instrumentality of injury, the Suburban.  The district court applied the law to the undisputed facts and properly determined that there was no joint enterprise as a matter of law. 


[1] Appellant relies on Dang v. St. Paul Ramsey Medical Center, Inc., 490 N.W.2d 653 (Minn. App. 1992), review denied (Minn. Dec. 15, 1992), to argue that the right to voice in the direction and control need not be equal for a joint enterprise to exist.  This court in Dang cited to Pierson v. Edstrom, 286 Minn. 164, 168, 174 N.W.2d 712, 714 (1970), in which the supreme court concluded that a husband had a right to control operation of a vehicle because, among other reasons, he was the vehicle's registered owner, and Peterson v. Fortier, 406 N.W.2d 563, 566 (Minn. App. 1987), review denied (July 31, 1987), in which this court explained that joint enterprise determinations depend on a legal right to control the actions of other participants in the group.  But this court also explained it saw "no policy reason for a rigid requirement of equality and reject[ed] it."  Dang, 490 N.W.2d at 658.  In Delgado, however, a case decided before Dang,the supreme court seemed to have concluded otherwise: 

Each participant must have an equal right to direct and govern the movements and conduct of every other participant with respect to the mutual undertaking. * * * Actual physical control is not necessary, however, since only the legal right to control is required.

Delgado, 289 N.W.2d at 482 (citations omitted).  Whether equal control is required in order to find a joint enterprise, however, is not dispositive of this case.