This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







William Boutwell,

Appellant (C7-02-747),

Respondent (C1-02-761),


Angela Michelle Walswick-Boutwell,

Respondent (C7-02-747),

Appellant (C1-02-761),




Polk County Sheriff’s Department, et al.,

defendants and third-party plaintiffs,





Crookston Police Department,

Third-Party Defendant.


Filed ­­­December 10, 2002


Willis, Judge


Polk County District Court

File No. C0-01-332


Thomas R. Olson, Jeffries, Olson & Flom, P.A., 403 Center Avenue, Suite 302, P.O. Box 9, Moorhead, MN 56561-0009 (for appellant/respondent William Boutwell)


Jay H. Fiedler, Pearson Christensen, 24 North Fourth Street, P.O. Box 5758, Grand Forks, ND 58206-5758 (for respondent/appellant Angela Walswick-Boutwell)


Richard A. Beens, Marnie E. Polhamus, Felhaber, Larson, Fenlon & Vogt, P.A., 225 South Sixth Street, Suite 4200, Minneapolis, MN 55402-4302 (for respondents Polk County Sheriff Department, et al.)


            Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Willis, Judge.


U N P U B L I S H E D   O P I N I O N




            Appellants, an injured employee and his former wife, challenge the district court’s grant of summary judgment to respondents, arguing that respondents were not engaged in a common enterprise with appellant’s employer at the time of appellant’s injury.  Because we conclude that there are no genuine issues of material fact and that the district court did not err in its application of the law, we affirm.



            Respondent Polk County Sheriff’s Department (Polk County) and the Crookston Police Department (Crookston) have been holding joint training classes since 1998.  Polk County sponsors the classes, and they are held on Polk County property. 

In March 2000, appellant William Boutwell, a patrolman for Crookston, injured his back while attending a joint training class with Polk County.  At this class, a Polk County deputy and a Crookston police officer instructed five other Crookston officers and three other Polk County deputies.  The Polk County deputy and the Crookston officer both played active roles in instructing the class:  both men were certified to instruct, both led the class though various training exercises, and both were listed as instructors on the class attendance sheet and course-completion certificates.  They also worked together to develop the course outline and together submitted the outline, their resumes, and copies of their training certificates to get the course formally approved by the Minnesota Board of Peace Officer Standards and Training.

            The class consisted of morning and afternoon sessions.  In the morning, the officers listened to a lecture by the Polk County deputy, watched training videos provided by the Crookston officer, and participated in training exercises led by both instructors.  In the afternoon, the officers divided into pairs and took turns participating in training scenarios at a nearby vacant house.  The Polk County deputy supervised these scenarios, and the Crookston officer worked with the officers who remained in the classroom.

Boutwell injured his back during a training scenario when he wrestled a Polk County deputy to the floor.  A few weeks later, Boutwell submitted an injury report to Crookston and eventually elected to receive workers’-compensation benefits.

In February 2001, Boutwell and appellant Angela Walswick-Boutwell, who was then his wife, brought an action for negligence against respondents Polk County and the Polk County deputy who had instructed the class.  The district court granted respondents’ summary-judgment motion on the ground that appellants’ claims were barred by the election-of-remedies provision of the Minnesota Workers’ Compensation Act.  Appellants now argue that because the training class was not a common enterprise between Crookston and Polk County the election-of-remedies provision does not preclude their recovery from Polk County.




            On an appeal from summary judgment, this court determines whether (1) there are any genuine issues of material fact and (2) 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 views the evidence in the light most favorable to the parties against whom summary judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

            Under the Minnesota Workers’ Compensation Act, Minn. Stat. § 176.061, subds. 1, 4 (2002), an injured employee may not bring a third-party action after receiving workers’-compensation benefits if the third party was engaged in a “common enterprise” with the employer at the time of the injury.  Whether a common enterprise existed is a legal determination.  O’Malley v. Ulland Bros., 549 N.W.2d 889, 897 (Minn. 1996).  When making this determination, courts must apply an even-handed standard and favor the interests of neither the employee nor the employer.  Id. at 894.

            A common enterprise exists between two employers when the following three factors are met:

(1) The employers must be engaged on the same project; (2) [t]he employees must be working together (common activity); and (3) [i]n such fashion that they are subject to the same or similar hazards.


Id. (citing McCourtie v. U.S. Steel Corp., 253 Minn. 501, 506, 93 N.W.2d 552, 556 (1958)).

1.         Same project.

            Employers are engaged on the same project when a substantial relationship exists between them.  Urbanski v. Merchs. Motor Freight, 239 Minn. 63, 71, 57 N.W.2d 686, 690 (1953); see, e.g., O’Malley, 549 N.W.2d at 895 (holding that general contractor and subcontractor working on highway repair project “shared functions and had a long-term relationship” and were engaged on same project); Ritter v. M.A. Mortenson Co., 352 N.W.2d 110, 113 (Minn. App. 1984) (holding that employers of steel workers and crane operators working together to construct bus garage were engaged on same project).

            The district court found that Crookston and Polk County were engaged on the same project.  The record supports this finding.  Crookston and Polk County shared functions: the Crookston officer and the Polk County deputy worked together to develop the course outline, and together they led the class in training exercises.  Crookston and Polk County also had a long-term relationship; for more than a year, the two departments had been holding joint training classes.

Appellants argue that the Crookston officer was neither present during nor involved with the training scenario in which Boutwell was injured.  But this argument does not defeat a “same-project” determination:  both instructors were involved in both sessions of the class.

2.         Common activity.

            The second factor requires the employees be “working together” or engaged in a “common activity.”  O’Malley, 549 N.W.2d at 895.  The activities of the employees must do more than overlap minimally; they must be “interdependent.”  Id. (citation omitted).

In O’Malley, employees of two employers who worked in the same space and coordinated their activities throughout a project were found to be involved in a common activity.  Id. at 896.  The court noted that the employees exchanged equipment and sought advice from both employers.  Id.

            Here, the district court concluded that the Crookston officers and Polk County deputies were engaged in a common activity.  We agree.  They worked in the same classroom; they coordinated their activities throughout the day as they observed the same lectures, watched the same videos, and participated in the same training exercises; they divided into pairs and took turns participating in training scenarios at the vacant house; and they exchanged equipment when they watched videos provided by Crookston and used safety equipment provided by Polk County.

            The activities of the Crookston officers and the Polk County deputies also were interdependent.  Boutwell could not have completed the training scenarios without the Polk County deputy whom he wrestled.  Moreover, officers from each department relied on a Polk County deputy and a Crookston officer to instruct them and to certify their attendance at the class.

            Appellants contend that there was no common activity because Polk County employees were in “complete control of the scenario situation.”  But appellants fail to cite any authority for dividing an activity into segments and considering only one segment.  Crookston and Polk County employees were engaged in the same activities throughout the day.

3.         Same or similar hazards.

            The third factor requires that employees be subject to the same or similar hazards.  Id. The employees do not need to face identical hazards; it is sufficient if many of the hazards facing them are similar.  Id. at 897. 

            The district court found that the class participants faced similar hazards.  Appellants dispute this finding, arguing that the Polk County instructor and the Polk County deputy who assisted him in presenting the scenarios did not face the same hazards as the Crookston officers who participated in the scenarios.  Although the Polk County instructor did not face the same hazards, the Polk County deputy who assisted the instructor faced nearly identical hazards as the participating Crookston officers.  In fact, Boutwell injured his back while wrestling the Polk County deputy to the floor.  Moreover, both the Crookston officers and the Polk County deputies who were enrolled in the class participated in the same activities and scenarios.

            Crookston and Polk County were engaged on the same project, and their employees were working together and subject to the same or similar hazards.  The district court did not err in determining that Crookston and Polk County were engaged in a common enterprise.