This opinion will be unpublished and

may not be cited except as provided by

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







Martin J. Ostrowski,


Vanessa Ostrowski,





Minnesota Zephyr Limited,


Hulcher Services, Inc., a Delaware corporation,


The Burlington Northern and Santa Fe Railway Company, a Subsidiary of Burlington Northern Santa Fe Corporation, a Delaware corporation,




Filed  January 28, 2003

Affirmed, motion granted

Anderson, Judge


Washington County District Court

File No. C1012205


Harry A. Sieben, Jr., Jeffrey M. Montpetit, Sieben, Grose, Von Holtum & Carey, Ltd., 900 Midwest Plaza East, 800 Marquette Avenue, Minneapolis, MN  55402 (for appellant)


William M. Hart, Katherine A. McBride, Michael D. Hutchens, Meagher & Geer P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN  55402 (for respondent Hulcher Services, Inc.)


Paul A. Banker, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., 500 Young Quinlan Building, 81 South Ninth Street, Minneapolis, MN  55402 (for respondent Minnesota Zephyr Limited)

            Considered and decided by Stoneburner, Presiding Judge, Anderson, Judge, and Wright, Judge.

U N P U B L I S H E D  O P I N I O N




            Appellant Martin Ostrowski was injured on the job and elected to receive workers’ compensation from his employer, Minnesota Zephyr (Zephyr).  Appellant also sued respondent Hulcher Services, Inc. (Hulcher), claiming it was negligent in the accident.  Appellant argues that the district court erred in ruling (1) that Hulcher owed no duty to warn appellant of the dangers of trying to manually couple train cars with a pry bar and (2) that Hulcher and Zephyr were engaged in a common enterprise.  Because we conclude that Zephyr and Hulcher were engaged in a common enterprise, we affirm the district court’s grant of summary judgment in favor of Hulcher.



At the time of the accident that gave rise to this litigation, appellant Martin Ostrowski was the supervisor of Minnesota Zephyr’s maintenance department.  The Minnesota Zephyr is a restored dinner train operating in the St. Croix River Valley, near Stillwater, Minnesota.[1]  The bulk of appellant’s duties involved light maintenance and janitorial work.  Before coming to work for Zephyr, appellant’s previous employment also included substantial railroad experience that allowed him to observe trains being re-railed and coupled together. 

On March 7, 1998, during an afternoon tour, three of Zephyr’s train cars derailed.  The derailed cars were separated from the rest of the train and the passengers were returned to Stillwater in Zephyr’s operable cars.  A Zephyr supervisor contacted Hulcher, a nationwide company specializing in re-railing trains.  Zephyr and Hulcher had a previous working relationship and Hulcher had just re-railed the Zephyr train days earlier.  Appellant’s supervisor told appellant to go to the scene of the derailment and assist Hulcher’s crew.  Because appellant’s supervisor was concerned that appellant might be too eager to help and could get hurt, the supervisor explicitly instructed appellant not to interfere with Hulcher’s crew and to stay away from anything that had to do with moving trains.  Appellant was told to “work a radio, help them get what they needed, to do what they needed to do, and to otherwise stay out of their way.” 

When Hulcher’s crew arrived at the scene, they were able to re-rail two of the three cars without much trouble, but could not get the third car completely back on the track.  Members of Hulcher’s crew asked Zephyr to bring the second engine to the scene, hoping that the extra power the second engine provided would enable Hulcher to re-rail the last car.  But because the couplers on the cars were not level, Hulcher’s crew could not couple the train. 

There was contradictory evidence presented to the district court concerning what happened next.  Appellant stated in his deposition that he saw members of Hulcher’s crew unsuccessfully attempt to raise one of the couplers by using blocks of wood and a pry bar supplied by Zephyr.  Hulcher’s employees, on the other hand, stated that it was appellant who asked for Hulcher’s pry bar and that he alone attempted to manually re-couple the cars. 

But it is undisputed that at some point appellant took the pry bar and tried to manually align the couplers himself.  Appellant used a pry bar to increase his distance from the train and to give him better leverage.  As the engine pushed the railed cars slowly toward the derailed cars, appellant slipped, stumbled toward the train, and was crushed in the pinch point between the two cars.  The engineer immediately pulled the train back and appellant fell to the ground.  Appellant was hospitalized and treated for severe neck, shoulder, rib, and back injuries.  Appellant sued Hulcher, Zephyr, and Burlington Northern.  Zephyr was granted summary judgment[2] and Burlington Northern and appellant were able to reach a settlement agreement. 

The district court also granted summary judgment in favor of Hulcher, finding that Hulcher had no duty to warn appellant of the dangers implicit in working extremely close to the pinch point between two train cars while attempting to manually re-couple the cars with a pry bar.  The district court also held that appellant’s claim was barred because appellant had received workers’ compensation and Hulcher and Zephyr were engaged in a common enterprise under Minn. Stat. § 176.061  (1998).  This appeal followed.  Hulcher moved to strike large portions of appellant’s appendix, arguing it contains material never made part of the district court’s record. 



On an appeal from summary judgment, appellate courts “ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law.”  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990) (citation omitted).  A motion for summary judgment is granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  “On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.”  Id.  There is no genuine issue of material fact for trial when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.  DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).


Appellant first challenges the district court’s determination that Zephyr and Hulcher were engaged in a common enterprise.  An injured worker is entitled to pursue a negligence claim against an employer or receive workers’ compensation, but not both.  Minn. Stat. § 176.031 (2002).  Similarly, where an employer is engaged in a joint enterprise with another entity, the injured employee may electtoreceive either workers’ compensation or pursue a claim against the other entity in district court.  Minn. Stat. § 176.061, subds.1, 2, 3 & 4 (2002).  The legislature has been very clear that the workers’ compensation statute is to be applied in an evenhanded manner, favoring neither the injured worker nor the employer.  Minn. Stat. § 176.001 (2002). 

We apply a de novo standard of review to the workers’ compensation statute.  A.J. Chromy Constr. Co. v. Commercial Mech. Servs., Inc., 260 N.W.2d 579, 582 (Minn. 1977).  A common enterprise exists if the following three criteria are met: (1) the employers must be engaged in the same project; (2) the employees must be working together in a common activity; and (3) and the employees are exposed to the same or similar hazards.  O’Malley v. Ulland Bros., 549 N.W.2d 889, 894 (Minn. 1996).  The common enterprise defense fails if any one of these criteria is not met.  Id.  Appellant argues that none of them are satisfied. 

a.      Same Project

The first prong of the joint enterprisetest requires the employers to be engaged in the same project or enterprise.  Id.  It is not enough for the employees’ tasks to be related in a general or vague fashion such as working toward the completion of a building.  McCourtie v. U.S. Steel Corp., 253 Minn. 501, 510, 93 N.W.2d 552, 559 (1958).  A common project does not exist if the workers have no shared tasks.  Id.  Conversely, where two sets of employees are each participating in a specific undertaking, a joint project does exist.  Ritter v. M.A. Mortenson Co., 352 N.W.2d 110, 113 (Minn. App. 1984). 

For example, a common project existed where employees shared equipment, helped each other haul material, and coordinated work by sending messages back and forth.  O’Malley, 549 N.W.2d at 895.  Likewise, employees of different firms were found to be engaged in the same project of connecting underground pipes where one employee dug a trench with a backhoe and another worked in the trench.  Olson v. Lyrek, 582 N.W.2d 582, 584 (Minn. App. 1998). 

Here, appellant and Hulcher’s employees were engaged in the joint project of attempting to re-rail the train.  Although they did not perform identical tasks, there was a substantial amount of cooperation and coordination between the Hulcher and Zephyr employees.  And although appellant was told not to interfere with Hulcher’s crew, appellant’s supervisor specifically ordered appellant to the scene of the derailment and told him to assist the Hulcher crew in any way they needed.  Similarly, when Hulcher’s crew was unable to re-rail the third car, they asked Zephyr to send an additional engine to add more power.  During the coupling process, the two crews worked together in attempting to reconnect the train.  All of this coordinated effort had a common goal of getting Zephyr’s derailed train cars back on the track. 

Appellant seems to argue that Hulcher alone was trying to re-rail the train and Zephyr’s employees limited their assistance to simply coupling the train cars.  But the reason the Zephyr employees, appellant included, were attempting to couple the cars was so the train could be re-railed.  Both Zephyr and Hulcher shared this common goal and were attempting to couple the train in furtherance of it.  See O’Malley, 549 N.W.2d at 895 (two employers worked extensively together toward their common goal of repairing a section of I-94).  Based on these facts, we conclude that the Hulcher and Zephyr employees were part of the same project, not merely working towards the same outcome.

b.      Employees Working Together

The second element necessary for a common enterprise is that the employees must be working together in common activities that are interdependent, not merely involve a minimal overlapping of tasks.  Sorenson v. Visser, 558 N.W.2d 773, 775 (Minn. App. 1997).  The focus when evaluating this criterion is on the activity of the employees, rather than the common goal of the employers.  O’Malley, 549 N.W.2d at 895.  For example, employees who had a history of cooperation were deemed to have worked together.  Higgins v. N.W. Bell Tel. Co., 400 N.W.2d 192, 194 (Minn. App. 1987).  Additionally, the “working together” requirement is satisfied where two sets of employees are working in the same space, coordinating their efforts, and seeking advice from each other.  O’Malley, 549 N.W.2d at 896.  But where there is little overlap between the two sets of employees’ activities, there is no common enterprise.  Schleicher v. Lunda Constr. Co., 406 N.W.2d 311, 313-14 (Minn. 1987). 

Here, the activities of the two sets of employees did more than minimally overlap.  When Hulcher was unable to re-rail the cars, its employees worked with Zephyr to solve the problem.  The Hulcher crew asked Zephyr to bring the second engine to the accident site in the hopes that additional power the second engine provided would help re-rail the third car.  Further, the two crews worked together while trying to couple the cars.  Zephyr and Hulcher had a long-standing relationship with one another, and although their working relationship was not continuous, as in Higgins,Hulcher had re-railed the Zephyr train just days before the accident in which appellant was hurt.  See Higgins, 400 N.W.2d at 194.

Likewise, appellant was specifically instructed to help Hulcher’s crew in any way he could.  Zephyr employees took direction from Hulcher’s crew on how to approach the derailed train during the re-coupling process.  Moreover, appellant was injured while engaged in the same activity Hulcher’s employees were involved in, coupling the cars.  Not only were both sets of employees trying to couple the cars when appellant was hurt, appellant decided to try to manually couple the cars after seeing Hulcher employees attempt the same maneuver and fail.  Finally it was only with the extra power the second Zephyr engine provided that the two sets of employees we able to get the cars back on the tracks.  We conclude that given the level of cooperation between the Hulcher and Zephyr crews, the second prong of the common enterprise test is satisfied.

c.       Same or Similar Hazard

The final factor in the common enterprise analysis requires that the employees face the same or similar hazards.  O’Malley, 549 N.W.2d at 896.  In Kaiser v. N. States Power Co., the supreme court held that firefighters and utility workers, although both engaged in efforts to put out a hotel fire caused by a gas explosion, were not involved in a common enterprise because the risk faced by the firefighter was much greater than the danger encountered by the utility workers who merely tried to shut off a gas valve far away from the actual fire.  Kaiser v. N. States Power Co., 353 N.W.2d 899, 906 (Minn. 1984).  Conversely, in O’Malley, employees were exposed to the same risk when both sets of employees endured the same dangers posed by the weather, fire, explosion, and possible collision between vehicles or between vehicles and people.  O’Malley, 549 N.W.2d at 896-97. 

Appellant argues that he faced a greater danger than anyone else at the derailment site.  Appellant contends that because he alone tried to manually re-couple the train, he was exposed to a greater danger.  This argument, however, is at odds with his own deposition in which appellant stated that he tried to couple the train after watching one of Hulcher’s employees take “a pry bar and blocks of wood and [try] to bring the couplers into height alignment.”  By his own testimony, appellant admits that both sets of employees were exposed to the same risk of harm of trying to manually couple train cars at such a close distance.  Because all three criteria for the common enterprise test are met, we conclude that appellant and Hulcher’s crew were engaged in a common enterprise.  As a result, under Minn. Stat § 176.061, subds. 1, 4, appellant’s claim against Hulcher is barred because of his receipt of workers’ compensation benefits and therefore the district court did not err in granting summary judgment in favor of Hulcher.[3]


Finally, Hulcher moves to strike large portions of appellant’s appendix, including significant parts of several witness’ depositions.  Rule 110.01 to the Minn. R. Civ. App. P. states, “the papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases.”  Moreover, “[t]his court will grant a motion to strike material submitted in a party’s appendix when that material did not come before the trial court.”  Cressy v. Grassmann, 536 N.W.2d 39, 43 (Minn. App. 1995), review denied (Minn. Sept. 28, 1995) (citation omitted).  Therefore those portions of appellant’s appendix that were not made part of the district court record are stricken and these items will play no role in the review of this matter.

            Affirmed, motion granted.

[1] The Zephyr operates on 6.5 miles of track near Stillwater, Minnesota.  There are engines at each end of the train, a power car and five passenger cars between the engines. 

[2] Appellant does not challenge the district court’s decision to grant Minnesota Zephyr summary judgment.

[3]The district court concluded that Hulcher owed no duty to appellant.  Although we ultimately leave this question unresolved, the conclusion of the district court in this regard is troubling.  Liability for negligence occurs (1) if there is a duty to warn another of a danger, (2) there was a failure to warn or an inadequate warning given, and (3) the lack of adequate warning caused injury to another.  Erickson v. Am. Honda Motor Co., Inc., 455 N.W.2d 74, 77-78 (Minn. App. 1990), review denied (Minn. July 13, 1990).  But this duty is not absolute; there is no duty to warn another of a danger so obvious that a warning is unnecessary.  Baber v. Dill, 531 N.W.2d 493, 496 (Minn. 1995).  Here the district court concluded that because appellant knew of the obvious risks, Hulcher owed appellant no duty to warn of the danger of working so closely to two train cars during the re-coupling process.  But this is a far closer question than the district court analysis indicates.  Appellant observed Hulcher employees attempting to manually align the couplers.  Appellant was advised to assist and was, in fact, instructed to bring some of the necessary materials to use in the re-coupling process.  Appellant did not insert himself directly between the cars.  Instead he stood what he thought was a safe distance away from the train.  And Hulcher’s crew, possessing superior knowledge of the risks, took no action to prevent appellant’s participation in the process.  While we need not resolve the question of whether or not a duty existed here, there are strong arguments in the record before us supporting the existence of a duty on the part of Hulcher to warn appellant.