This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
Oak Park Lutheran Church,
Filed October 1, 2002
Red Lake County District Court
File No. C0-00-167
James P. Carey, Sieben, Grose, Von Holtum, & Carey, LTD, 900 Midwest Plaza East, 800 Marquette Avenue, Minneapolis, MN 55402; and
Delray Sparby, Ihle & Sparby, P.A., 310 North Main Avenue, P.O. Box, 574, Thief River Falls, MN 56701 (for appellant)
Steven L. Marquart, Cahill & Marquart, P.A., 403 Center Avenue, Suite 200, P.O. Box 1238, Moorhead, MN 56561-1238 (for respondent Oak Park Lutheran Church)
Paul Wocken, Willenbring, Dahl, Wocken & Zimmerman, PLLC, Red River at Main, P.O. Box 417, Cold Spring, MN 56320-0417 (for respondent Lundeen)
Richard C. Mollin, Mollin Law Office, 108 Second Street Northwest, Fosston, MN 56542 (for respondent Nelson).
Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Klaphake Judge.
U N P U B L I S H E D O P I N I O N
Appellant brought a personal injury action in district court against Oak Park Lutheran Church, Lloyd Lund, and Brad Nelson after incurring injuries from being electrocuted while assisting in positioning a church steeple. Nelson brought a third party complaint against Darrow Lundeen, claiming Lundeen's negligence contributed to appellant's injuries. The district court granted summary judgment as to Nelson and Oak Park, ruling there was no direct or vicarious liability because (a) respondent Nelson was a mere volunteer, (b) the danger of electrocution was open and obvious, and (c) the church had no right of control over individual defendants. The court granted appellant's motion to amend his complaint to add a theory of liability predicated upon general negligence against respondent Lund and Lundeen. The district court denied appellant's motion to amend his complaint to assert liability against Oak Park, Lundeen, and Nelson claiming they were engaged in a joint enterprise. The district court granted Oak Park's and Nelson's motion for summary judgment. The court denied Lundeen's motion for summary judgment. Appellant challenges the district court's rulings alleging that (a) the church owed a non-delegable duty to appellant; (b) the court erred in its ruling as to lack of control over individual members; (c) there were fact questions as to the church's relationships with the individuals; and (d) he should have been allowed to amend his complaint. We affirm.
Respondent Darrow Lundeen, a member of respondent Oak Park Lutheran Church, and his sister sought and obtained approval from the church to erect a church steeple in their deceased father's memory. Respondent Lundeen hired respondent Lund and his crane to hoist the steeple onto the church's roof, and paid him $300 for services performed. Lund had experience as a crane operator for 50 years, but was getting up in age.
On August 14, 1999, respondents Lundeen, Nelson, and Lund were at the church. Respondent Nelson was present for his expertise as a carpenter. Respondent Lund hired appellant Irving Hamm to assist him on the job. The record shows that Hamm expected to be paid approximately $20 and had previously worked with Lund on other jobs using the crane. Appellant knew of the danger of using a crane near power lines.
Lund brought his crane to the job site and positioned the crane without direction or control by Lundeen or Nelson. Prior to beginning the work, Lundeen spoke with Lund about the electrical wires overhead. Appellant Hamm was controlled and directed only by respondent Lund when he attached the cables from the crane to the steeple. While appellant was untangling the cables on the crane, Lund, visually impaired by a false ceiling in the cab, swung the crane hitting the overhead power lines and injuring appellant. This appeal follows.
D E C I S I O N
Motion to amend: Joint enterprise
Appellant Irving Hamm argues that the district court erred in denying his motion to add a theory of joint enterprise liability againstrespondents Oak Park Lutheran Church, Brad Nelson, and Darrow Lundeen. Oak Park and Lundeen contend that the district court properly denied appellant's motion to amend his complaint to assert a theory of joint liability because they did not have a right to a voice in the direction and control of the means used to carry out the common purpose and the operation of the crane.
The district court denied appellant's motion to amend his complaint to assert a theory of joint enterprise as among Oak Park Lutheran Church, Nelson, and Lundeen, concluding that every person, except Lund, was working on a voluntary basis at the site of the day of the accident, there was no sharing of expenses between Oak Park and Lundeen, and Oak Park "did not have the requisite amount of control over all the participants to make this fall under the category of a joint enterprise." We agree.
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). If a joint enterprise is found and "one participant * * * negligently causes an injury while acting within the scope of such enterprise, every participant therein is liable to the injured party." Spannaus v. Otolaryngology Clinic, 308 Minn. 334, 339, 242 N.W.2d 594, 597 (1976); see also Peterson v. Fortier, 406 N.W.2d 563, 565 (Minn. App. 1987), review denied (Minn. July 31, 1987). Whether a joint enterprise exists is a question of law for the court to decide. Weber by Sanft v. Goetz, 371 N.W.2d 611, 616 (Minn. Ct. App. 1985).
Here, it is possible to find a mutual undertaking for the common purpose of erecting a steeple on the church. But there is no evidence to show that each participant had an equal right to direct and govern the movements and conduct of every other participant with respect to the mutual undertaking or that they shared expenses or equipment relating to the project. Delgado v. Lohma, 289 N.W.2d 479, 482 (1979). The district court properly concluded that Nelson was "simply a volunteer, who happened to be a building contractor" and did not at any time "enjoy the ultimate right to direct any of the parties" regarding the work being done at the Oak Park Lutheran Church. There is no evidence that Nelson had any ultimate right to control or direct the other church members regarding the work being performed on the church. Appellant testified in his deposition that on the day of the day accident Nelson did not direct him as to what tasks to perform or how to perform them.
The record further supports the district court's finding that no joint enterprise existed because the group did not share expenses relating to the steeple project. See Delgado, 289 N.W.2d at 483 (finding 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). In this case, Lundeen financed the steeple project without any contribution from other church members. Lundeen's family financed the project as a memorial to their deceased parents. There is no evidence that Nelson or Oak Park contributed any money for the materials used to construct the steeple or paid for Lund's services.
The record does not support appellant's contention that a joint enterprise existed because Oak Park contributed to the cost of the project. The record shows that Lund determined what he would charge for the use of his crane and that Lundeen paid for the costs of Lund's services. There is no evidence to show that Oak Park wasinvolved in any of the charges or responsible for payment for any expense relating to the steeple project. Lundeen gave Oak Park funds for the steeple project and these funds were placed in a memorial account, which belonged to the Lundeen family. There is no evidence that the church would be allowed to pay for materials without Lundeen's permission or use the funds for other purposes. There is no evidence that any church money was used in the steeple project.
Appellant argues that the district court erred in granting summary judgment in Oak Park's favor because it had
control over whether a steeple would be placed on its church roof, the deposit of monies, control over the design of the steeple, control of roof placement of the steeple, cost of the crane, and payment of the costs from church account funds.
An important factor in determining whether a joint enterprise exists is whether each member of the undertaking had a right to control the instrumentality. Pierson v. Edstrom, 286 Minn. 164, 167, 174 N.W.2d 712, 714 (1970). A joint enterprise can "only exist if each of them has the right to exercise control" over the instrumentality. Burdick v. Bongard, 256 Minn. 24, 31, 96 N.W.2d 868, 874 (1959).
Although the instrumentality that caused the injury, the crane, was hired to complete installation of the steeple, there is no evidence to support a conclusion that respondents had "an equal right to control the instrumentality." The record shows that the crane was under Lund's exclusive control and neither respondent had a voice in the control of the instrumentality. Lund owned the crane and was the operator of the crane at the time of the accident. There is no evidence that any respondent, if he so desired, would have been allowed to direct the operation of the crane. The evidence indicates that Lundeen hired Lund for his expertise as an experienced crane operator and because he owned the crane.
The record supports the district court's findings that there were no material fact issues supporting liability based on a theory of joint enterprise against Oak Park, Nelson, and Lundeen. We affirm on that issue.
Appellant argues the district court erred in granting summary judgment in Oak Park's and Nelson's favor. Appellant argues that respondent Oak Park Lutheran Church is vicariously and/or directly liable for his injuries because it maintained control through the church members that were at the job site. Appellant further argues that Oak Park, as a landowner, could have reasonably anticipated the harm to appellant because the power lines were an open and obvious danger. Appellant contends that a material fact exists as to whether Oak Park was a contractor or a landowner at the time of the accident and thus the district court erred in granting summary judgment. We disagree.
On appeal from summary judgment, this court asks whether there are there any genuine issues of material fact and whether the lower court erred in its application of the law. Norwest Bank Minn., N.A. v. State Farm Mut. Auto. Ins. Co., 588 N.W.2d 743, 745 (Minn. 1999); State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). An appellate court views the evidence in the light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).
The essential elements of a negligence claim are: (1) the existence of a duty of care; (2) a breach of that duty; (3) an injury was sustained; and (4) breach of the duty was the proximate cause of the injury. Schmanski v. Church of St. Casimir, 243 Minn. 289, 292, 67 N.W.2d 644, 646 (1954). If there is no evidence in the record that gives rise to a genuine issue of material fact as to any one of these elements, summary judgment is appropriate. Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995). Generally, the existence of a duty is a question of law for the reviewing court to decide de novo. Canada by Landy v. McCarthy, 567 N.W.2d 496, 504 (Minn. 1997); Larson v. Larson, 373 N.W.2d 287, 289 (Minn. 1985).
The record supports the district court's findings that Oak Park and Nelson were not directly or vicariously liable. Nelson was a volunteer at the site that day, the danger of electrocution was open and obvious to Hamm, Hamm was informed by Lundeen of the power wires, and Oak Park had no right of control over the respondents.
The district court granted Oak Park's motion for summary judgment, concluding that it was not vicariously liable because it could not reasonably anticipate the harm caused to appellant.
Appellant argues that Oak Park's liability arises because
acting through its members, [it] retained specific control over the project by deciding whether a steeple would be allowed, selecting the design of the steeple, measuring and preparing the roof, directing the area of the placement of the steeple, assisting in the lift itself by flagging, assisting in the placement of the steeple from the crane onto the roof area and in the detachment of the steeple from the crane.
Appellant further alleges liability because respondents, as landowners, should have anticipated the risk of harm, specifically the risk of the steeple coming into contact with the power wires that were positioned near the roof of the church and failed to warn appellant of the danger. The district court granted respondent Oak Park’s motion for summary judgment and concluded that it was not liable for appellant’s injuries because it was
not reasonable to expect [appellant] Oak Park to anticipate a harm, when the job was being done in the daylight hours, giving a clear view of the wires, with experienced workers at the helm. (AA. 31).
The district court did not err in determining that respondent Oak Park was not vicariously liable for appellant's injuries. The church could not reasonably anticipate the harm to appellant from the power lines. Generally, a landowner owes no duty where the risk of harm is obvious or known to the plaintiff, unless the landowner should anticipate the harm despite the obviousness of the risk. Lawrence v. Hollerich, 394 N.W.2d 853, 855 (Minn. App. 1986), review denied (Minn. Dec. 17, 1986). Generally, a landowner is not vicariously liable for injuries to an independent contractor's employee resulting from the contractor's negligence. Conover v. Northern States Power Company, 313 N.W.2d 397, 401 (Minn. 1981). Further, an "employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servants." Id. at 403.
Appellant argues that the Oak Park should have anticipated the harm created by the open and obvious danger of the power lines situated so closely to the roof of the church where the steeple was to be placed. Here, the danger to appellant from the power lines was obvious. The power lines were plainly visible to Lund and Hamm. "The 'danger of electrical energy is a matter of common knowledge.'" Vieths v. Ripley, 295 N.W.2d 659, 664 (Minn. 1980) (quotation and citation omitted). The record shows that both Lund and Hamm were made aware of the power lines before beginning work that day. When the risk results from the work that the contractor performs, "the employer should not be held vicariously liable to someone who is injured under the direction and control, as an employee, of the very party who creates the danger. Conover,313 N.W.2dat 405. Here, Lund's operation of the crane created the danger. Although the power lines were there before the work was performed, the risk was created when Lund swung his crane into the power lines. It was Lund's negligence in failing to control his crane that created the hazard. Oak Park had no reason to believe that Lund would fail to appreciate the dangers involved with the power lines. or that Lund would allow the crane to contact the power lines. Oak Park could reasonably have believed that Lund would avoid contact with the power lines when he operated the crane.
Appellant additionally argues the district court erred in granting summary judgment in Oak Park's and Nelson's favor, claiming that the church maintained control over respondents.
Here, the Minnesota Supreme Court decision of Sutherland v. Barton,570 N.W.2d 1 (Minn. 1997), is instructive. In Sutherland, the supreme court determined that for liability to attach for injuries to an independent contractor's employees, the hiring company must retain such "a right of supervision that the contractor is not entirely free to do the work in his own way." Id. at 5-6.
The district court granted respondent Oak Park's motion for summary judgment, concluding that it was not directly liable because it had no "right to control" the construction project and over the workers. As to one defendant, Lundeen, the district court denied his motion to be released by summary judgment, determining that there were some material fact issues as to whether Lundeen exercised control over the steeple project.
The record supports the district court's findings that Oak Park did not retain such a right of supervision over the project, Lund, and Hamm that Lund was not entirely free to do the work his own way. Similar to Sutherland, Lund "determined how to perform the specific task to which [appellant] was assigned the day of the accident." Id. at 6. While it is true that respondent Nelson and Lundeen assisted in preparing the steeple to be lifted to the roof, it was respondent Lund who determined how the task of lifting the steeple to the roof would be accomplished. He determined who would attach the cabling to the crane and when he would hoist the crane.
We note that this case differs factually from Sutherland. In Sutherland, the hiring company was a business and the workers who were acting on behalf of the company were paid employees and were performing duties associated with their employment. Here, respondents were volunteers. Nelson was not paid for his time working on the project. If he refused to work or perform any task that day, Oak Park had no authority to compel him to perform. We conclude that the district court properly granted summary judgment in Oak Park's favor.
Respondent Lundeen contends that the district court erred (a) in granting appellant's motion to amend his complaint to assert a direct claim as a tortfeasor against Lundeen and (b) in denying summary judgment in his favor on a theory of general negligence. Lundeen argues that he was a volunteer on the day of the accident, that he did not control or supervise respondent Lund's work, and that he cannot be vicariously or directly liable for appellant's injuries. Appellant asserts that Lundeen was acting as a general or independent contractor on the day of the accident and thus is liable for his injuries because he negligently failed to supervise the project.
The district court allowed appellant to amend his complaint to add a direct claim against Lundeen predicated on a theory of general negligence and denied Lundeen's motion for summary judgment. Lundeen's appeal is governed by Minn. R. Civ. App. P. 103.02, which allows joint, consolidated appeals and raises issues, that are adverse to joint appellants.
The district court found that there
were disputes to the amount of control Defendant Lundeen held and exercised with regards to the steeple project at Defendant Oak Park Church. These facts will need to be applied for the ultimate determination of whether there is liability. Defendant Lundeen asserts that he was merely a volunteer at the site that day, but Defendant Lund and Plaintiff Hamm assert that he was acting in the capacity of an independent contractor. These are material facts, as they will change the outcome of the case depending on which way they flow. The court determines that there is a genuine issue regarding material facts. For that reason, Defendant Lundeen's Motion for Summary Judgment is DENIED.
The record supports the district court's conclusion that a question existed on the amount of control that Lundeen exercised over the steeple project and whether he was a volunteer or an independent contractor at the Oak Park Lutheran Church's premises. The record shows that there is a factual dispute over whether Lundeen may be considered an independent contractor. That determination could give rise to liability if Lundeen exercised control over the project. It was Lundeen's idea to erect the steeple in memory of his deceased parents. He purchased the steeple and helped unload it. Lundeen selected Lund, the crane operator, arranged to have him at the church, and paid Lund for his services.
The issue is the amount of degree of control over the project and instrumentality that Lundeen retained. The record supports the district court's findings that there are material fact issues as to what control Lundeen exercised over the work, in what capacity he exercised control, and what control he had over Lund relative to operating the crane. There is a dispute over (1) whether Lundeen was inside the steeple bolting it together or whether he was outside directing the crane; (2) whether respondent Lundeen hired Lund, told him where to be and at what time he expected him to arrive; and (3) whether Lundeen spoke with Lund about the power lines before Lund began to work on the crane.