This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Ashley Gaines-Lambert,


Patrick Francisco,

Michael L. McNeal,

Corey A. Whitmore,


Filed August 15, 2006


Minge, Judge


Hennepin County District Court

File No. 02-14459



Kenneth W. Dodge, Louise A. Behrendt, Stich, Angell, Kreidler & Dodge, P.A., The Crossings, Suite 120, 250 Second Avenue South, Minneapolis, MN 55401-2122 (for appellant)


Burke J. Ellingson, Maureen A. Hill, Brendell & Zinn, Ltd., 8519 Eagle Point Boulevard, Suite 110, Lake Elmo, MN 55042 (for respondent)


            Considered and decided by Halbrooks, Presiding Judge; Peterson, Judge; and Minge, Judge.


U N P U B L I S H E D  O P I N I O N

MINGE, Judge

            Appellant challenges the district court’s dismissal of his contribution claim and denial of his motion for a new trial.  Because the jury found that the party from whom appellant sought contribution was not liable to the plaintiff and because the district court did not abuse its discretion in framing the jury instructions and special verdict questions, we affirm. 


            On August 4, 2000, Corey Whitmore accidentally shot Ashley Gaines-Lambert.  The incident occurred at a cabin owned by appellant Patrick Francisco, who was romantically involved with the mother of respondent Michael McNeal.  McNeal had invited Whitmore, Gaines-Lambert, and two other friends to the cabin.  The cabin had formerly been owned by McNeal’s mother.  After its transfer to Francisco, McNeal had used the cabin several times without Francisco’s knowledge. 

            A month before the accident, Francisco had placed a loaded shotgun near the door to the cabin to be used to scare away bears.   McNeal noticed the shotgun upon his arrival at the cabin and warned his friends not to play with it.  When Whitmore picked up the gun, McNeal told him to put it down.  Several hours later, Whitmore again picked up the gun.  This time, the gun discharged.  The bullet hit Gaines-Lambert in the jaw, causing a severe injury. 

            Gaines-Lambert sued Francisco, Whitmore, and McNeal in April 2002.  Whitmore did not defend.  Francisco asserted cross-claims for contribution and indemnity against both McNeal and Whitmore.  Francisco and McNeal brought various motions for summary judgment.  The district court denied Francisco’s motion and granted McNeal’s motion, which dismissed Gaines-Lambert’s claims against him. 

            Gaines-Lambert settled all her claims for damages arising out of the accident for $280,000, with Francisco paying that amount.  Although as a result of the settlement, Gaines-Lambert’s claims were dismissed, the district court granted Francisco’s motion for default judgment on his cross-claim against Whitmore for contribution and preserved Francisco’s contribution claim against McNeal. 

            As a part of his efforts to secure contribution from McNeal, Francisco appealed the district court’s earlier grant of summary judgment dismissing Gaines-Lambert’s claims against McNeal.  This court affirmed the summary judgment on one basis but remanded for consideration of another.  Gaines-Lambert v. Francisco, No. A03-1489, 2004 WL 1244337, at *1 (Minn. App. June 8, 2004).  A jury trial on Francisco’s claims against McNeal followed.  Prior to the district court’s charging of the jury, Francisco objected to including a definition of, and special verdict interrogatory on, open and obvious hazard and instead requested that the jury answer the question on such hazards from each defendant’s subjective point of view.  The district court denied this request.  Francisco did not otherwise contest the jury instructions or special verdict form. 

            The jury completed the special verdict form finding that Francisco, McNeal and Whitmore were negligent; attributing 70% of the fault to Whitmore and 15% each to Francisco and McNeal; and finding that the firearm was “an open and obvious hazard to a reasonable person.”  Based on the jury’s finding of an open and obvious hazard, the district court concluded that neither Francisco nor McNeal had a duty to protect Gaines-Lambert from Whitmore’s use of the firearm and dismissed Francisco’s cross-claim against McNeal.  Francisco brought a motion for amended findings or a new trial, which the district court denied.  This appeal followed.



            The first issue is whether the district court abused its discretion in denying appellant’s motion for a new trial because of improper jury instructions and special verdict questions.  The district court has the discretion to grant a new trial, and we will not disturb the district court’s decision absent a clear abuse of that discretion.  Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990). 

            District courts are allowed considerable latitude in selecting the language in jury instructions, and this court will not reverse a district court’s decision absent an abuse of discretion.  Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986).  When instructions fairly and correctly state the applicable law, an appellate court will not grant a new trial. Alevizos v. Metro. Airports Comm’n, 452 N.W.2d 492, 501 (Minn. App. 1990), review denied (Minn. May 11, 1990).  District courts also have broad discretion in framing special-verdict questions for the jury.  Dang v. St. Paul Ramsey Med. Ctr., Inc., 490 N.W.2d 653, 658 (Minn. App. 1992), review denied (Minn. Dec. 15, 1992).  “[A] party is entitled to an instruction setting forth his theory of the case if there is evidence to support it and if it is in accordance with applicable law.”  Poppenhagen v. Sornsin Constr. Co., 300 Minn. 73, 81, 220 N.W.2d 281, 286 (1974) (quotation omitted). 

            Francisco challenges the district court’s jury instruction and special verdict interrogatory on open and obvious hazards, arguing that the instruction should not have been given and the interrogatory should not have been submitted or, in the alternative, that the jury should have been instructed to separately consider whether the firearm was an open and obvious hazard for each person based on the background and experience of that person.  The test for whether a hazard is open and obvious is objective: “the question is not whether the injured party actually saw the danger, but whether it was in fact visible.”  Louis v. Louis, 636 N.W.2d 314, 321 (Minn. 2001).  Further, a condition is obvious if “both the condition and the risk are apparent to and would be recognized by a reasonable man ‘in the position of the visitor, exercising ordinary perception, intelligence and judgment.’”  Id. (quoting Restatement (Second) of Torts § 343A cmt. b (1965)). 

            The district court instructed the jury as follows:

Whether a danger is open and obvious depends on an objective determination of whether the person would have reasonably seen the danger, not on a subjective consideration of whether the person actually perceived or appreciated the danger.  If a brief inspection would have revealed the condition, it is not concealed. 

The special verdict form asked: “Did the involved firearm within the cabin constitute an open and obvious hazard to a reasonable person?” 

            The jury instruction given by the district court states the applicable caselaw.  See id.  Further, the district court did not abuse its discretion in submitting the question of whether the gun was an open and obvious danger to the jury on the special verdict form, as this is a question of fact.  See Olmanson v. LeSueur County, 693 N.W.2d 876, 881 (Minn. 2005); Minn. R. Civ. P. 49.01(a).  Francisco argues that the district court should have differentiated between whether the firearm was an obvious danger to McNeal, who had an extensive knowledge of guns, and whether it was an obvious danger to Whitmore, Gaines-Lambert, and the other occupants of the cabin who lacked this background.  But the relevant inquiry is not whether the gun would have been an open and obvious danger to any of these specific parties; the standard for whether a hazard is obvious is objective.  Louis, 636 N.W.2d at 321.  Given the well-publicized risks of firearms, no one can credibly claim ignorance of the dangers of guns.  Gaines-Lambert and Whitmore were presumed to be aware of the danger.  The district court did not abuse its discretion in denying Francisco’s motion for a new trial on the basis of jury instructions or special verdict questions.


            The second issue is whether the district court erred in dismissing Francisco’s claim against McNeal.  This decision was based on the jury’s finding that the firearm was an open and obvious hazard and the district court’s determination that neither Francisco nor McNeal would have been liable to Gaines-Lambert.  “The doctrine of contribution is an equitable doctrine which requires that persons under a common burden share that burden equitably.”  Spitzack v. Schumacher, 308 Minn. 143, 145, 241 N.W.2d 641, 643 (1976).  The elements of a contribution claim are (1) “a common liability of two or more actors to the injured party” and (2) “payment by one of the actors of more than its fair share of the common liability.”  City of Willmar v. Short-Elliott-Hendrickson, Inc., 512 N.W.2d 872, 874 (Minn. 1994).  Whether a party is entitled to contribution is a question of law, which we review de novo.  Nuessmeier Elec., Inc. v. Weiss Mfg. Co., 632 N.W.2d 248, 251 (Minn. App. 2001), review denied (Minn. Oct. 16, 2001).  The district court’s factual findings are only set aside if they are clearly erroneous.  Minn. R. Civ. P. 52.01. 

            “[A] special verdict form is to be liberally construed to give effect to the intention of the jury and on appellate review it is the court’s responsibility to harmonize all findings if at all possible.”  Kelly v. City of Minneapolis, 598 N.W.2d 657, 662 (Minn. 1999).  Special verdict forms on issues of fact are authorized by Minn. R. Civ. P. 49.01, but a party’s failure to request a special verdict finding on a factual issue waives the party’s right to a jury finding on that issue.  Minn. R. Civ. P. 49.01.  Absent a jury finding, “the court may make a finding; or, if it fails to do so, it shall be deemed to have made a finding in accord with the judgment on the special verdict.”  Id. 

            As already stated, the special verdict form here included a question on whether the firearm was an open and obvious hazard.  Minnesota courts have adopted the rule set out in the Restatement (Second) of Torts on open and obvious hazards: “A possessor of land is not liable to his invitee for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.”  Baber v. Dill, 531 N.W.2d 493, 495-96 (Minn. 1995) (quoting Restatement (Second) of Torts § 343A (1965)) (other quotation omitted).  The comment to the Restatement indicates that the exception to the open-and-obvious rule applies if the possessor has a reason to believe an entrant will be distracted when he encounters the danger, or that an entrant might decide to risk the danger because “to a reasonable man in his position the advantages of doing so would outweigh the apparent risk.”  Restatement (Second) of Torts § 343A cmt. f (1965).  Whether the exception applies and a possessor should nevertheless anticipate the harm are questions of fact.  Olmanson, 693 N.W.2d at 881. 

            Francisco argues that the jury’s finding that the firearm was an open and obvious danger does not relieve McNeal of liability to Gaines-Lambert because the exception might apply.  He argues that it is possible that the firearm was the type of danger about which a possessor has a duty to warn despite its obviousness.  See Baber, 531 N.W.2d at 496.  The district court instructed the jury on the definition of an open and obvious hazard, but did not indicate to the jury the effect of a finding that the firearm was such a hazard or that there was an exception to the effect of such a finding.  The special verdict form did not ask the jury to consider whether McNeal should have anticipated injury.  By not asking for this added instruction,[1] Francisco waived his right to a jury finding on the exception and the district court is deemed to have made the finding, consistent with its judgment in favor of McNeal, that the firearm was not the type of danger that triggered the exception.  See Minn. R. Civ. P. 49.01. 

            Further, the district court’s implicit finding on this issue was not clearly erroneous.  The record does not contain evidence that McNeal should have known that the cabin’s occupants would have been distracted from the obvious danger of the gun, or that a prudent person would risk the danger of the gun.  The district court could reasonably have found that the potential harm of a firearm is so obvious that Gaines-Lambert and Whitmore were well aware of the risks of guns and that a warning was not necessary.  See Sperr v. Ramsey County, 429 N.W.2d 315, 317-18 (Minn. App. 1988) (no duty with regard to low-hanging tree branch in plain view), review denied (Minn. Nov. 23, 1988); Lawrence v. Hollerich, 394 N.W.2d 853, 856 (Minn. App. 1986) (no duty with regard to descending slope of hill), review denied (Minn. Dec. 17, 1986).

            Francisco also argues that by entering judgment based on the jury’s finding of obviousness, the district court disregarded the jury’s additional finding that McNeal was 15% at fault for Gaines-Lambert’s injuries.  We note that this allocation of fault is superseded by the finding that the hazard was open and obvious.  The finding of 15% fault does not imply a jury finding that an exception to the open-and-obvious rule existed. 

            Francisco finally challenges the district court’s comments about whether a special relationship existed between the parties and whether the firearm was an open and obvious hazard.  The district court had already granted McNeal summary judgment on the basis that he had no special relationship with Gaines-Lambert, and on appeal this court affirmed that decision.  Gaines-Lambert, 2004 WL 1244337, at *5.  Because this discussion was simply a reiteration of the district court’s prior memorandum and because a duty based on a special relationship was raised and rejected only as an alternative basis for McNeal’s duty to Gaines-Lambert, the district court’s inclusion of this discussion in its memorandum is superfluous and does not provide a basis for reversal. 


            The third issue is whether Francisco is entitled to contribution from McNeal regardless of whether McNeal had a duty to Gaines-Lambert.  A defendant can make a successful claim for contribution based on a settlement with the plaintiff as long as the defendant was “not acting as a volunteer.”  Samuelson v. Chicago, Rock Island & Pac. R.R. Co., 287 Minn. 264, 268, 178 N.W.2d 620, 624 (1970).  And a party who settles when faced with the imminent trial of a personal injury claim and the possibility of a large verdict, and who insists on preserving his claim to contribution from other parties, “negates any inference” that the party was acting as a volunteer.  Lametti v. Peter Lametti Constr. Co., 305 Minn. 72, 77, 232 N.W.2d 435, 439 (1975).  But a contribution claim requires common liability between the parties to the injured party “to guarantee that contribution be recovered only from a party who was liable for the damages already satisfied by the party seeking contribution.”  Samuelson, 287 Minn. at 267, 178 N.W.2d at 623. 

            Francisco cites Lemmer v. IDS Props., Inc., 304 N.W.2d 864 (Minn. 1980) for the proposition that a defendant who settles with the plaintiff is entitled to contribution regardless of whether the parties from whom he is seeking contribution would have actually been liable to the plaintiff.  In that case, two defendants settled with the plaintiff following a construction accident.  Id. at 866.  Following a trial on the liability of the various defendants, a jury found that the two settling defendants were not at fault, but that a third-party defendant was at fault.  Id.  The Minnesota Supreme Court upheld the district court’s judgment in favor of the settling defendants on their indemnity claims against the third-party defendant, reasoning that common liability between the parties was not required because “[o]ne who settles with an injured party a claim which eventually proves to be ill founded, is not necessarily a volunteer.”  Id. at 869. 

            Here, Francisco settled with Gaines-Lambert prior to the trial, but the district court found that neither Francisco nor McNeal would have been liable to Gaines-Lambert, based on the jury’s finding that the firearm was an open and obvious hazard.  These facts are therefore distinguishable from Lemmer, which did not consider a contribution claim against a party who has been found not to be at fault.  See id. 

            In Horton by Horton v. Orbeth, Inc.,the Minnesota Supreme Court considered a contribution claim by two defendants the jury found to be more negligent than the plaintiff against third-party defendants found to be less negligent than the plaintiff.  342 N.W.2d 112, 113 (Minn. 1984).  Under Minn. Stat. § 604.01, subd. 1 (1976), parties are only liable to the plaintiff if their negligence is greater than the plaintiff’s.  The third-party defendants in Horton therefore would not have been liable to the plaintiff because their fault was less than his.  342 N.W.2d at 114.  Under the statute, contribution claims are permitted when two or more parties “are jointly liable.”[2]  Minn. Stat. § 604.01, subd. 1.  In Horton, the supreme court held that the defendants were not entitled to contribution from the third-party defendants under either the statute or the common law: “We have consistently refused to require a party to contribute to an award when the quality of his conduct did not justify imposing liability to the injured party.”  342 N.W.2d at 114.  McNeal’s situation is similar to that of the third-party defendants in Horton.

            Because McNeal here is not liable to Gaines-Lambert, Francisco is not entitled to contribution from McNeal.  We note the apparent anomaly of this result.  By bringing his friends to Francisco’s cabin without permission, McNeal was arguably more involved in this incident than Francisco, but McNeal is not being required to share the costs to the severely injured victim.  Francisco decided to avoid the risk of a trial and the damages a jury might find and to instead take the risk of collecting on his contribution claim.  The choice did not work out.  On this record, we conclude the district court did not err in dismissing Francisco’s contribution claim.  


[1] Although the discussion of the first issue indicates that Francisco sought an instruction with a subjective standard and such an instruction might arguably lead to the exception to the open and obvious rule, the record does not indicate such an argument was made to the district court and Francisco does not press such an argument in this appeal.  We express no opinion on whether such an argument would be meritorious.

[2] The current version of this provision similarly only allows contribution from a party who is liable to the plaintiff.  Minn. Stat. § 604.02, subd. 1 (2004).