This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1489

 

Ashley Gaines-Lambert,

Plaintiff,

 

vs.

 

Patrick Francisco,

Appellant,

 

Michael L. McNeal,

Respondent,

 

Corey A. Whitmore,

Defendant.

 

Filed June 8, 2004

Affirmed in part and remanded in part

Hudson, Judge

 

Hennepin County District Court

File No. PI 02-014459

 

 

Kenneth W. Dodge, Louise A. Behrendt, Stich, Angell, Kreidler & Dodge, P.A., The Crossings, Suite 120, 250 Second Avenue South, Minneapolis, Minnesota 55401-2190 (for appellant)

 

Burke J. Ellingson, Maureen A. Hill, Brendel and Zinn, Ltd., Suite 110, 8519 Eagle Point Boulevard, Lake Elmo, Minnesota 55042 (for respondent)

 

            Considered and decided by Hudson, Presiding Judge; Anderson, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

Plaintiff Ashley Gaines-Lambert suffered serious injuries at a cabin owned by appellant Patrick Francisco when she was accidentally shot with a shotgun by defendant Corey Whitmore.  At the time of the accident, Gaines-Lambert and Whitmore were guests of respondent Michael McNeal at Francisco’s cabin.  (McNeal was a co-defendant in the original action.)  On appeal from summary judgment in the ensuing negligence action appellant argues that the district court erred in granting summary judgment to respondent McNeal and thereby frustrating appellant’s cross-claims against McNeal for contribution and indemnity.  Specifically, appellant argues that the trial court erred by finding that respondent had no “special relationship” with the plaintiff and therefore did not owe the plaintiff a duty to protect her from the harm caused by Whitmore.  Appellant also argues that there are genuine issues of material fact as to whether respondent McNeal was a “possessor” of the land and as such had a duty to use reasonable care for the safety of his guests.  Alternatively, appellant argues that respondent McNeal was a trespasser or licensee, and breached a duty of care to his guests because he maintained an artificial condition that involved an unreasonable risk of physical harm to others. 

Because respondent did not have a “special relationship” with the plaintiff, respondent had no duty to protect the plaintiff from injury, and we therefore affirm the district court on this issue.  But because the district court did not address respondent’s potential status as a “possessor,” trespasser, or licensee, and the potential duty of care respondent would owe his guests as a “possessor,” trespasser, or licensee, we remand for consideration of these issues by the district court.

FACTS

In 1999, appellant Patrick Francisco bought a cabin in Grand Marais, Minnesota, from Mary Deiter.  Francisco and Deiter were dating at the time of the incident that gave rise to this case.  Francisco replaced the existing locks at the cabin with combination locks that had a four-digit combination.  Francisco did not orally tell Mary Deiter’s son, respondent McNeal, the combination, but Francisco assumed McNeal knew it.  And, in fact, McNeal testified that he did know the combination.  The cabin had been in McNeal’s family for many years, and McNeal testified that everything in the cabin belonged to him and his mother.  At the time of the incident that gave rise to this case, McNeal had many personal belongings at the cabin, and Francisco had not asked McNeal to remove them.

In July 2000, Francisco took a trip to the cabin and saw a bear on the porch.  As a result of his encounter with the bear, Francisco took his 20-gauge shotgun out of the closet, loaded it, and propped it near the back door.  Francisco did not remove the gun or unload it when he left. 

Francisco learned that McNeal used the cabin in July 2000, without Francisco’s knowledge or permission.  Francisco asked Deiter to tell McNeal that McNeal needed to ask for permission to use the cabin.  McNeal admitted to using the cabin at least once in July 2000, without Francisco’s permission, and admitted that he was told to ask for permission in the future.  McNeal testified that he asked, and received, Francisco’s permission to use the cabin with a friend in late July 2000.  On that trip McNeal saw the shotgun by the door, knew the gun was real, and knew Francisco placed it by the door for possible use against bears.  McNeal’s friend picked up the gun and McNeal testified that he yelled at his friend to put it down and grabbed the gun from his friend; McNeal saw that the gun was loaded.

McNeal testified that he made a spur-of-the-moment decision to go to the cabin with his friends on the weekend of August 4, 2000.  McNeal testified that Francisco did not know that he was going to the cabin or taking his friends there.  McNeal also testified that he assumed that, if he had asked, Francisco would have given him permission to go to the cabin.  McNeal, Ashley Gaines-Lambert, Corey Whitmore, and two others drove to the cabin together, arriving at about 3:00 or 4:00 a.m.  After arriving at the cabin, McNeal’s guests saw the gun propped by the door.  When one of McNeal’s friends went to touch the gun, McNeal said “Don’t touch it.  That’s a gun.  You don’t play with that.  Leave it there.  Don’t touch it.”  About noon on August 4, 2000, Gaines-Lambert was watching television in the cabin, and McNeal had gone outside to look for fishing gear.  Whitmore, who was about six or seven feet away from where Gaines-Lambert was sitting, picked up the shotgun and began playing with it.  Gaines-Lambert was facing away from Whitmore, when there was a “bang” and Gaines-Lambert was shot.  The shot entered Gaines-Lambert’s jaw from behind, taking out her entire lower right jaw, leaving only a few bottom teeth.

            Gaines-Lambert sued Francisco, McNeal, and Whitmore in April 2002.  Gaines-Lambert’s negligence claim against Francisco was based on the proposition that he consented to McNeal’s use of the cabin and that he knew the gun was loaded and in plain sight.  Gaines-Lambert claimed that Francisco had a duty to warn McNeal that the gun was real, loaded, and dangerous.  Gaines-Lambert’s negligence claim against McNeal was based on the proposition that McNeal knew the gun was real, loaded, and dangerous; and that McNeal owed her a duty to warn her and the other guests at the cabin that the gun was real, loaded, and dangerous.  Francisco asserted cross-claims for contribution and indemnity against McNeal and Whitmore.  Whitmore never answered Gaines-Lambert’s complaint or Francisco’s cross-claim.

            Francisco and McNeal filed motions for summary judgment in late 2002.  The basis for Francisco’s motion was that Gaines-Lambert, McNeal, and Whitmore were trespassers and Francisco owed no duty of care to Gaines-Lambert.  Francisco also argued that the dangerous condition of the gun was open and obvious.  The basis for McNeal’s motion was that, absent a “special relationship” with Gaines-Lambert, he did not owe Gaines-Lambert any duty of care because he had no duty to control the conduct of a third person (Whitmore) in order to prevent that person from causing injury to her; McNeal claims that there was no such “special relationship.”  McNeal argued, in the alternative, that even if he was a “possessor” of the cabin, he did not breach his duty of care because the dangerous condition of the gun was open and obvious.

            On February 10, 2003, the district court denied Francisco’s motion for summary judgment, finding a fact issue as to whether McNeal was a trespasser or whether he had implied consent to use the cabin.  The district court also denied Francisco’s motion based on the “open and obvious condition” of the gun, finding that a jury could find the shotgun was not an open and obvious danger.  The district court granted McNeal’s motion, “reluctantly,” finding that, as a “social host,” McNeal had no special relationship to Gaines-Lambert and thus owed her no duty of care.  The district court did not address whether, under McNeal’s alternative argument, he owed a duty as a “possessor” of the cabin. 

            Gaines-Lambert settled her claims against Francisco in June 2003.  Judgment of partial dismissal was entered on July 21, 2003.  On June 11, 2003, counsel for Francisco wrote the district court requesting reconsideration of the February 10, 2003, order granting McNeal’s motion for summary judgment pursuant to rule 115.11 of the rules of practice for the district courts.  The letter argued that reconsideration was warranted because McNeal’s deposition was taken after the district court issued its order; and McNeal testified that he knew Francisco kept a loaded real gun by the front door, that Whitmore held and raised the gun the night before the incident, and that McNeal had forcefully grabbed it away from Whitmore.  The district court declined Francisco’s request for reconsideration.

            In September 2003, Francisco moved for default judgment against Whitmore.  On September 8, 2003, the district court entered judgment against Whitmore and in favor of Francisco on his cross-claim; and also entered judgment of dismissal in favor of McNeal.  Francisco brings this appeal.

D E C I S I O N

Summary judgment is appropriate where there are no genuine issues of material fact and a party is entitled to judgment as a matter of law.  Minn. R. Civ. P. 56.03.  On appeal from summary judgment, this court examines whether there are any genuine issues of material fact and whether the district court erred in its application of the law.  Cummings v. Koehnen, 568 N.W.2d 418, 420 (Minn. 1997).  The evidence must be viewed in the light most favorable to the non-moving party, and any doubts regarding the existence of a material fact should be resolved in that party’s favor.  H.B. ex. rel. Clark v. Whittemore, 552 N.W.2d 705, 707 (Minn. 1996).  On appeal from a grant of summary judgment, this court reviews questions of law de novo.  Christensen v. Eggen, 577 N.W.2d 221, 224 (Minn. 1998).

I

Francisco contends that McNeal failed to unload the gun or warn his friends that the gun was loaded and thus he placed Gaines-Lambert in danger; therefore he owed Gaines-Lambert a duty of care.  McNeal counters that Gaines-Lambert’s relationship to McNeal was that of a social guest, and, therefore, McNeal had no duty to protect his social guest from injuries or to prevent the criminal conduct of a third party.

To prove a claim of negligence, the plaintiff must show: (1) the defendant owed the plaintiff a duty; (2) the defendant breached that duty; (3) a causal connection between the plaintiff’s injuries and the defendant’s breach; and (4) injury in fact.  Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 157 (Minn. 1982).  The existence of a legal duty is an issue of law for the court to determine.  Larson v. Larson, 373 N.W.2d 287, 289 (Minn. 1985).  Traditionally, a defendant has no duty to control the conduct of a third person in order to prevent that person from causing injury to another.  Delgado v. Lohmar, 289 N.W.2d 479, 483 (Minn. 1979).  An exception to this rule permits imposing a duty on the defendant if: (1) there is a “special relationship” between the defendant and the third person; and (2) the harm to be prevented is foreseeable.  Lundgren v. Fultz, 354 N.W.2d 25, 27 (Minn. 1984).  A “special relationship” traditionally arises in a limited number of circumstances, such as in relationships between parents and children, masters and servants, and common carriers and their customers.  Delgado, 289 N.W.2d at 483-84.  In other circumstances, the court looks for evidence that one individual has in some way entrusted his or her safety to another, and the other has accepted that entrustment.  Erickson v. Curtis Inv. Co., 447 N.W.2d 165, 168 (Minn. 1989).

In granting McNeal summary judgment, the district court found that McNeal did not have a “special relationship” with Gaines-Lambert and had no duty to protect her from injury or to prevent criminal conduct of a third party.  The district court relied heavily on Gilbertson v. Leininger, 599 N.W.2d 127 (Minn. 1999).  In Gilbertson, the plaintiff was a guest in the defendants’ home.  Id. at 128.  The plaintiff consumed a bottle of wine and at least one beer and spent the night in the defendants’ home.  Id. at 129.  When the plaintiff awoke, the defendants noticed dried blood under her nose; the defendants brought this to plaintiff’s attention, she stated “blood” and returned upstairs.  Id.  Defendants left the home and returned several hours later, when they noticed the plaintiff did not look well.  Id.  Defendants called medical personnel, and it was later learned that plaintiff had suffered a skull fracture and a subdural hematoma.  Id. at 129-30.  The supreme court held that defendants did not have a special relationship with plaintiff because they did not have custody and control of plaintiff while she was a guest in their house.  Id. at 131.  The court noted that the plaintiff had not entrusted her safety to the social hosts and her hosts had not accepted any entrustment.  Id. at 132.

Francisco argues, however, that the district court failed to consider Delgado v. Lohmar, which, Francisco contends, changes the “special-relationship analysis” when a dangerous firearm is present.  In Delgado, the plaintiff landowner was blinded by a shot fired by someone in a party of grouse hunters that was on his land without his knowledge or consent.  289 N.W.2d at 481-82.  The court noted that generally “the law imposes no duty on people to protect strangers from being harmed by others.”  Id. at 484.  However, the court found that the trespassing hunters were engaged in an extremely dangerous activity and noted “[f]irearms are so dangerous that extra care must be taken to guard against accidents.”  Id. at 484.  The court concluded that

[w]hen several hunters, working together as a team[,] knowingly enter the property of another without his knowledge or consent, due care requires that each hunter be mindful of the danger created by their entry to the occupants of the property and that each warn his fellow hunters of third persons he knows are in the area.  Failure to warn under these circumstances is negligence.

 

Id. at 484.  Francisco contends the Delgado court held that there was a fact issue regarding the hunters’ negligence without finding that a “special relationship” existed between plaintiff and the hunters.

But Francisco’s reliance on Delgado is misplaced.  The court in Delgado noted that because the hunters were engaged in an extremely dangerous activity (hunting with firearms), they had a duty to warn the property owner as they trespassed on the property owner’s land.  Id.  Here, McNeal and Gaines-Lambert were not engaged in an “extremely dangerous activity”; they were sharing a cabin in which a loaded shotgun was openly displayed.  The duty to protect exists only to the extent the underlying act is foreseeable.  Neither Gaines-Lambert nor appellant offered any evidence that McNeal was aware of a specific risk of harm to Gaines-Lambert.  Everyone present at the cabin knew there was a firearm in the house; but this fact alone does not make Whitmore’s shooting of Gaines-Lambert “foreseeable.”  As respondent aptly notes, the mere presence of a firearm does not portend the shooting of a person. 

Accordingly, we conclude that the district court did not err in granting McNeal summary judgment and finding that McNeal did not have a “special relationship” with Gaines-Lambert.  Gaines-Lambert’s only relationship to McNeal was that of a social guest.  There are no facts that suggest Gaines-Lambert and McNeal had a “traditional special relationship,” such as parent and child, a master and servant, or a common carrier and their customer.  Furthermore, nothing in the facts suggests that Gaines-Lambert entrusted her safety to McNeal, or that McNeal accepted any entrustment.  Nor did McNeal exert such “considerable power” over Gaines-Lambert as to justify the imposition of a duty of care.  Furthermore, as Gilbertson makes clear, the Minnesota Supreme Court has declined to impose a duty on the host to protect his “social guest.”  See Gilbertson, 599 N.W.2d at 131; Harper v. Herman, 499 N.W.2d 472, 475 (Minn. 1993) (holding a social host owner of a boat had no duty to protect his guest from possible injury); but see Erickson, 447 N.W.2d at 169-70 (holding that a parking facility operator with a contractual relationship with the plaintiff, owes the plaintiff a “duty to use reasonable care to deter criminal activity on its premises”); but see also Errico v. Southland Corp., 509 N.W.2d 585, 588 (Minn. App. 1993) (finding a customer who was assaulted in a store parking lot, while the employees watched the assault occur and did not intervene or summon the police, did not owe the customer a duty, because a mere merchant-customer relationship does not constitute the requisite “special relationship” absent extremely compelling evidence regarding Erickson-like considerations).

Because McNeal did not have a “special relationship” with Gaines-Lambert, McNeal had no duty to protect her from injury, and we therefore affirm the district court’s grant of summary judgment on this issue.

II

Francisco also argues that there are genuine issues of material fact as to whether McNeal had Francisco’s implied permission to use the cabin at the time of the incident.  If so, argues Francisco, McNeal could be considered a “possessor” of the land who had a duty to use reasonable care to protect the safety of his guests.[1]  Further, Francisco argues Minnesota law supports imposing a duty of care on McNeal as a trespasser or licensee, because he maintained an artificial condition that involved an unreasonable risk of physical harm to others.[2]  The district court did not directly address either of these issues because Gaines-Lambert, as the plaintiff to the original action, argued that McNeal’s liability was premised on the existence of a special relationship pursuant to Gilbertson, not any duty based on a premises liability theory.[3]  Because the district court did not directly address either of these issues, we remand for consideration of these issues and such further proceedings as the district court deems appropriate.  We express no opinion on the merits of the claims.

Affirmed in part and remanded in part.

 



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

[1] The Minnesota Supreme Court has adopted the Restatement (Second) of Torts section 328E, which defines a “possessor” of land as:

 

(a) a person who is in occupation of the land with intent to control it or

(b) a person who has been in occupation of land with intent to control it, if no other person has subsequently occupied it with intent to control it, or

(c) a person who is entitled to immediate occupation of the land, if no other person is in possession under Clauses (a) and (b).

 

Isler v. Burman, 305 Minn. 288, 293-94, 232 N.W.2d 818, 821 (1975) (quoting Restatement (Second) of Torts § 328E (1965)).

 

[2] The Restatement (Second) of Torts, § 386, provides: 

 

Any person, except the possessor of land or a member of his household or one acting on his behalf, who creates or maintains upon the land a structure or other artificial condition which he should recognize as involving an unreasonable risk of physical harm to others upon or outside of the land, is subject to liability for physical harm thereby caused to them, irrespective of whether they are lawfully upon the land, by the consent of the possessor or otherwise, or are trespassers as between themselves and the possessor.

 

Restatement (Second) of Torts § 386 (1965).

 

[3] The district court did determine that a fact issue existed regarding McNeal’s status, noting that “a reasonable jury could find that McNeal and, by extension, [Gaines-Lambert] and their friends, had implied consent to use the cabin.”  However, the district court made this determination in addressing Francisco’s argument that Gaines-Lambert, McNeal, and their friends were trespassers on his property and as such he owed them no duty.  The district court did not address the issue of whether McNeal owed a duty of care to Gaines-Lambert as a “possessor” or as a trespasser or licensee.