This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Michael L. McNeal,
Corey A. Whitmore,
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,
Considered and decided by Halbrooks, Presiding Judge; Peterson, Judge; and 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.
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 (
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.
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 (
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 (
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 (
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?”
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.
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
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
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 (
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,
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
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.
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.
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
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.
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.
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 (
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.
 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.
 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).