This opinion will be unpublished and

may not be cited except as provided by

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






Shawn Davis, et al.,





Bernard Walter, defendant and third party plaintiff,





Paul Walter, et al., third party defendants,


Joseph Bartholomew, third party defendant,



Filed January 2, 2007


Ross, Judge


Mower County District Court

File No. 50-C1-04-001407


Marty G. Helle, Hoversten, Johnson, Beckmann & Hovey, LLP, 807 West Oakland Avenue, Austin, MN 55912 (for respondents Shawn Davis, et al.)


Ken D. Schueler, Dunlap & Seeger, P.A., 206 South Broadway, Suite 505, P.O. Box 549, Rochester, MN 55903 (for appellant)


James H. Turk, Elizabeth L. Weinandt, Blethen, Gage & Krause, PLLP, 127 South Second Street, P.O. Box 3049, Mankato, MN 56002 (for respondent Joseph Bartholomew)


Considered and decided by Klaphake, Presiding Judge; Ross, Judge; and Harten, Judge.*


U N P U B L I S H E D   O P I N I O N


ROSS, Judge


This case involves Shawn Davis’s fall from his father-in-law’s loft while Davis helped remove debris from the loft.  A jury found that Davis and his wife may recover damages in tort from his father-in-law, Bernard Walter, after the district court dismissed Walter’s claims against three third-party defendants who were also helping him remove the debris.  On appeal from the denial of his alternative motion for judgment as a matter of law or a new trial, Walter argues that the evidence does not support the jury verdict because he did not owe a duty to Davis and that Davis assumed all risk of any injury.  Walter further argues that the district court erred by refusing to give a jury instruction on primary assumption of risk, by dismissing Walter’s claims against third-party defendant Joseph Bartholomew, and by admitting improper evidence of habit.  Because the record demonstrates that Walter owed a duty to Davis and supports the legal determination that Davis did not fully assume the risk of injury, and Walter has not established grounds for a new trial, we affirm.


Shawn Davis sustained injuries in September 2003 while helping his father-in-law, Bernard Walter, remove property from a machine shed on Walter’s farm. Walter had asked his two sons, Davis, and another son-in-law, Joseph Bartholomew, to help him clean out the shed and other buildings because he had recently sold them.  The shed was about forty-five by eighty feet and had a loft in one corner approximately ten feet above the ground.

The loft was filled with debris that Walter had accumulated over the years.  Walter devised a plan for the men to remove the debris from the loft:  The men would toss to the shed floor the lighter wood objects to be burned, while they would toss the heavier and metal objects into the loader bucket of a tractor Walter drove up to the loft.  Walter would then haul the loaded objects outside.  Walter had a debilitating stroke several years earlier, so he was unable to climb into the loft and could only operate the tractor.  Davis and his three brothers-in-law would stand in the loft and hold up items for Walter to see from his seat on the tractor below, then Walter would indicate whether each item should be dropped to the floor or loaded into the bucket.

To reach the loft with the tractor’s bucket, Walter drove the tractor into the shed and turned it toward the loft.  When the men began clearing the loft, there was room on the dirt floor for Walter to place the tractor close to the loft and to position its bucket squarely against the loft or at a slight angle so that only inconsequential distance separated the loft and lip of the bucket.  But as the job progressed into the afternoon, the debris the men tossed onto the dirt floor from the loft accumulated and blocked the tractor from its earlier path and close positioning.  Walter could then place only one corner of the tractor’s bucket against the loft at a sharp angle.  The other corner therefore extended several feet from the loft, creating a significant gap.

This gradually increasing gap between one corner of the bucket and the loft plays prominently in Davis’s fall.  After Walter had made many trips with the tractor in and out of the shed, the men found an automobile axle near the back of loft and moved it to the front edge.  The axle was approximately five feet long and weighed between 100 and 150 pounds.  Walter directed the men to place the axle in the bucket, and Davis offered to help Bartholomew.  Each man lifted one end.  Bartholomew stood closest to the end of the bucket that still reached the loft, while Davis stood near the opposite end of the bucket, which was then angled approximately four feet away from the loft.  The only way for Davis to get his end of the axle into the bucket was to toss it over the four-foot gap.  The toss did not go as planned.  Davis fell from the loft to the floor of the shed.  He testified that “the momentum [of] just trying to get it out into that bucket” caused him to fall.  Bartholomew also testified that Davis’s hand went “right with [the axle], and he just kept going.”  Davis sustained a minor laceration to his hand but significant injuries to his leg.

Davis and his wife, Walter’s daughter, filed a civil complaint against Walter, alleging that his negligence in placing the bucket caused Davis’s fall and that Davis’s wife lost her husband’s companionship and services.  Walter filed a third-party complaint against his sons and Bartholomew, alleging that any liability for Davis’s injury resulted from their negligence while participating in a joint task.  Walter and each of the third-party defendants moved for summary judgment.  The district court denied Walter’s motion, dismissed his claims as a third-party plaintiff, and entered summary judgment in favor of his sons and Bartholomew.

Following a trial on Davis’s claims against Walter, the jury found that both Davis and Walter were negligent, but it found that Walter was sixty-seven percent responsible for Davis’s injuries while Davis was only thirty-three percent at fault.  The district court denied Walter’s posttrial motion for judgment as a matter of law or, alternatively, for a new trial.  Walter appeals, arguing that judgment as a matter of law is appropriate because he did not owe Davis a duty and, even if he did, Davis assumed all risk of injury.  Alternatively, Walter argues that a new trial is required because the district court erroneously declined to instruct the jury on primary assumption of risk, dismissed Bartholomew from the litigation, and admitted improper evidence of habit.



We first address Walter’s contention that the district court erred by failing to enter judgment as a matter of law in his favor.  Judgment as a matter of law is appropriate when a party has been fully heard on an issue and no legally sufficient evidentiary basis would allow a jury to find in favor of the party on the issue.  Minn. R. Civ. P. 50.01(a).  When the district court denies a motion for judgment as a matter of law, we must affirm the denial if the record contains any competent evidence that reasonably tends to support the verdict.  Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998).  Weviewthe evidence in the light most favorable to the jury verdict and will not set aside a verdict “[u]nless the evidence is practically conclusive against the verdict.”  Id. (quotation omitted).

To support a negligence claim, a plaintiff must prove that the defendant owed the plaintiff a duty, the defendant breached this duty, and the breach was the proximate cause of the plaintiff’s injury.  State Farm Fire & Cas. v. Aquila Inc., 718 N.W.2d 879, 887 (Minn. 2006).  Walter raises two challenges to the jury determination that he was negligent.  He argues that he did not owe a duty to Davis and that, even if a duty existed, Davis primarily assumed the risk of any harm.  We conclude that Walter owed Davis a duty and that the undisputed facts in the record support the district court’s determination that Davis did not primarily assume the risk of injury.

Whether a legal duty exists is generally a question of law for the court to determine.  Louis v. Louis, 636 N.W.2d 314, 318 (Minn. 2001).  A land possessor has a duty to use reasonable care for the safety of entrants invited onto the property.  Id.  Both the entrant and the land possessor have a duty of reasonable care.  Id. at 319.  A land possessor, however, does not owe a duty to an entrant when the danger of an activity or condition is known and obvious to the entrant.  Baber v. Dill, 531 N.W.2d 493, 495-96 (Minn. 1995) (discussing underlying rationale that “no one needs notice of what he knows or reasonably may be expected to know” (quotation omitted)).  The broad exception to this general principle is that the possessor is not relieved of a duty if he or she should anticipate the harm despite the entrant’s knowledge or the obviousness of the danger.  Id.

The facts of this case trigger that exception and demonstrate that Walter owed Davis a duty of care.  Davis was on Walter’s property at his request and was participating in a project directed by Walter.  Walter told the men what to do, made the decision of where they would place the debris from the loft, and he positioned the tractor’s bucket beside the loft.  Walter accurately insists that the risk was known and obvious to Davis.  Even so, Walter could anticipate the harm.  Testimony indicated that he was familiar with the axle and that when he could not move the tractor closer to the loft, he directed Davis and his son to “just throw it in there” because he could not “get [the bucket] . . . any better than that.”  Walter should have anticipated the harm despite the obviousness of the danger to Davis

As courts have noted in the past, we acknowledge that the precedent in this area of tort law has not been entirely clear.  Although the rules regarding a land possessor’s duty to an invitee and the related concept of assumption of risk have been consistently stated, application of these principles has been difficult to predict.   See, e.g., Baber, 531 N.W.2d at 495 (observing that “application of the doctrine of assumption of the risk is confusing and has led to seemingly inconsistent decisions”).  A land possessor owes an invitee no duty when conditions on the land are known and obvious, but he owes the invitee a duty if the land possessor should nonetheless anticipate harm.  Id. at 495-96.  Yet the possessor owes no duty if the danger is “so obvious that no warning is necessary.”  Id. at 496 (stating that difference between harm that possessor should anticipate and dangers that are so open and obvious “is a fine one” without explaining the distinction).  Similarly, although whether a duty exists must analytically precede an assumption-of-the-risk analysis, at times the analyses have been conflated and perhaps circular.  See id. at 495 (stating that court must consider whether duty exists before considering assumption of the risk); Bakhos v. Driver, 275 N.W.2d 594, 595 (Minn. 1979) (holding that continued existence of defendants’ duty made assumption of risk inapplicable).

A cynic might suggest that our cases imply that where the danger is really obvious, there is no landowner duty, but where the danger is really, really obvious, there is a duty, yet, where the danger is really, really, really obvious, there is again no duty.  Compare Lawrence v. Hollerich, 394 N.W.2d 853, 855-56 (Minn. App. 1986), (holding that open dangers generally avoid the duty but that when the danger is so clear that harm is likely there is a duty), review denied (Minn. Dec. 17, 1986) with Baber, 531 N.W.2d at 495-96 (holding that some dangers are “so obvious that no warning is necessary”).  Our appellate decisions have not clearly explained the difference between a danger that is so obvious that the landowner must warn against the likely injury despite the obvious danger and a danger that is a bit more obvious such that the entrant now needs no warning.

It is in this legal context that the district court determined that Walter was arguably a participant in increasing the danger in his operation of the tractor, in its placement, and in his encouragement of Davis to disregard the hazard and toss the axle over the gap.  We believe the district court had sufficient ground to consider Walter’s gradual increasing of the gap in relation to its legal determination that a duty existed.  The evidence supports the conclusion that Walter owed Davis a duty either to use reasonable care in positioning the bucket in a manner that allowed Davis to safely place items in it, to warn him, or to take other reasonable precautions.

Walter next argues that, even if he owed Davis a duty, Walter is not liable because Davis primarily assumed the risk of injury.  Minnesota recognizes two forms of assumption of risk, primary and secondary.  Schneider v. Erickson, 654 N.W.2d 144, 148 (Minn. App. 2002).  Primary assumption of risk by a plaintiff completely bars recovery while secondary assumption of risk focuses on relative fault and limits recovery comparatively.  Springrose v. Willmore, 292 Minn. 23, 24-25, 192 N.W.2d 826, 827 (1971).  Whether a person primarily assumed a risk is a question for the jury unless the evidence is conclusive, but application of the doctrine is uncommon and appropriate only in limited circumstances.  Schneider, 654 N.W.2d at 148-49; Rusciano v. State Farm Mut. Auto. Ins. Co., 445 N.W.2d 271, 273 (Minn. App. 1989).  The basic elements of primary and secondary assumption of risk are the same.  The plaintiff must have knowledge of the risk, appreciate the risk, and choose to take the risk despite an opportunity to avoid it.  Schneider, 654 N.W.2d at 149.  But primary assumption of risk applies only if the plaintiff also manifested consent to relieve the defendant of a duty.  Armstrong v. Mailand, 284 N.W.2d 343, 351 (Minn. 1979).  In contrast, secondary assumption of risk applies when a plaintiff“voluntarily encounters a known and appreciated hazard created by the defendant without relieving the defendant of his duty of care with respect to such hazard.”  Id. at 349.

Despite the confusion noted in Baber concerning application of these principles, our caselaw is clear that the essential element distinguishing primary assumption of risk from secondary assumption of risk is a manifestation of consent by the plaintiff to relieve the defendant of his obligation to act reasonably.  Iepson v. Noren, 308 N.W.2d 812, 815 (Minn. 1981); Schneider, 654 N.W.2d at 149.  And not “every deliberate encountering of a known danger . . . is reasonably to be interpreted as evidence of such consent.”  Iepson, 308 N.W.2d at 815 (quotation omitted).  Here, Walter has failed to point to any evidence, or even to argue, that Davis manifested consent to relieve Walter of his duty of care.  We also note that even the proposed jury instruction that Walter submitted to the district court on primary assumption of risk failed to include the consent element.  This element is necessary as the only distinguishing factor between primary and secondary assumption of risk.  This court therefore has no basis to reverse the jury’s determination that, although Davis was partially at fault in causing his own injury, he did not fully assume the risk and consent to relieve Walter of his duty.  Even if Davis knew of, and may have appreciated, the risk involved in tossing the heavy axle several feet from the loft to the bucket, the lack of citation to record evidence that he relieved Walter of his shared duty of reasonable care defeats Walter’s contention.  Walter therefore fails to articulate a basis upon which this court can determine that the district court erred by denying Walter’s motion for judgment as a matter of law as it regards primary assumption of the risk.


We turn to Walter’s argument that the district court improperly denied his motion for a new trial.  The district court may grant a new trial if any of the grounds enumerated in rule 59.01 of the Minnesota Rules of Civil Procedure exist.  We review a district court’s decision on a motion for a new trial for an abuse of discretion.  Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990).  On appeal from denial of a new-trial motion, we review the evidence in the light most favorable to the jury verdict and will not set aside the verdict unless it is “manifestly and palpably contrary to the evidence viewed as a whole.” Navarre v. S. Washington County Schs., 652 N.W.2d 9, 21 (Minn. 2002) (quotation omitted).

Walter contends that he is entitled to a new trial on three grounds: the district court’s refusal to instruct the jury on primary assumption of risk; the district court’s dismissal of his claims against Bartholomew; and the district court’s admission of evidence of conduct that occurred after Davis’s fall.  The record demonstrates that the district court properly exercised its discretion and that Walter is not entitled to a new trial on any of these grounds.

Walter first asserts reversible error based on the district court’s refusal to give a jury instruction on primary assumption of risk.  District courts have considerable discretion when selecting jury instructions.  Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986); see also Rusciano, 445 N.W.2d at 273 (noting district court’s discretion to instruct jury on assumption of risk).  We review a district court’s decision for an abuse of that discretion, and it is not error to omit an assumption-of-risk instruction when the evidence does not support a theory of complete assumption of risk.  Alholm, 394 N.W.2d at 490; Rusciano, 445 N.W.2d at 274.  A party is not entitled to a new trial when the jury instructions fairly and correctly state the applicable law.  Taney v. Indep. Sch. Dist. No. 624, 673 N.W.2d 497, 505 (Minn. App. 2004), review denied (Minn. Mar. 30, 2004).

Just as he has argued to this court, Walter mistakenly argued to the district court that the elements of primary assumption of the risk include only those elements that would constitute secondary assumption of the risk.  He requested an instruction that omitted the only distinguishing element—manifest consent of the plaintiff to relieve the defendant of his duty.  We conclude that the district court did not abuse its discretion in rejecting this erroneous instruction, particularly when considered with its selection of other jury instructions.  The court instructed the jury on the definitions of negligence, reasonable care, entrant, and direct cause.  The court also stated the duty that a possessor of land owes to an entrant and the duty of an entrant to use reasonable care for his own safety.  The court instructed the jury that “[a]nyone has the right to assume that the others around him will use reasonable care.  However, a person is only entitled to assume that others will use reasonable care until it appears that they will not.”  In denying Walter’s request for the additional instruction, the court accurately noted that the current jury-instruction guides do not include an instruction concerning primary assumption of risk, indicating that the principles of the doctrine fall within the definitions of negligence and due care.  See Schneider, 654 N.W.2d at 149 n.2 (observing that, to avoid confusion, other jurisdictions have eliminated primary-assumption-of-risk label because its principles are subsumed in basic elements of negligence).

Based on the court’s instructions, the jury was able to consider whether, and to what extent, Davis assumed the risk of injury by negligently disregarding the risk known to him.  The instruction that a person cannot expect reasonable care by another once it appears that the other person will not exercise such care allowed the jury to consider Walter’s argument that, once he stopped the tractor, all attendant risks were obvious to Davis and he made the subsequent decision to throw the axle.  Apparently rejecting that argument, at least in part, the jury found Davis only thirty-three percent negligent.  We appreciate that a different fact-finder might reasonably attribute considerably more fault to Davis based on Davis’s appreciation of the physical danger.  Nevertheless, the findings did not rest on improper instruction.  The district court fairly and accurately stated the law and did not abuse its discretion by refusing to give the additional jury instruction.

Walter next argues that the district court erred by dismissing his claims against Bartholomew because Bartholomew’s trial testimony demonstrated that Bartholomew was partly responsible for Walter’s placement of the bucket.  We disagree that the district court should have revived the claims against Bartholomew based on new testimony developed at trial after summary judgment.  The district court properly dismissed Bartholomew on his motion for summary judgment because Walter failed to develop any evidence that Bartholomew was negligent. The function of summary judgment is to prevent unsupported claims from proceeding to trial.  Wall v. Fairview Hosp. & Healthcare Servs., 584 N.W.2d 395, 404(Minn. 1998).  When additional claims proceed to trial following partial summary judgment, it is inappropriate to undo the summary-judgment determination based on later-developed trial testimony.  Id.  The supreme court has noted that “[t]o allow trial testimony to form the basis of a claim after the court has already ruled that the claim may not go forward would undermine the purpose of summary judgment.”  Id.  Walter therefore is not entitled to a new trial based on Bartholomew’s trial testimony.  We do not consider Walter’s contention that a different result should occur here because, he asserts, Bartholomew’s trial testimony contradicted his deposition testimony that was developed before summary judgment.  We have compared the challenged testimony and conclude that Bartholomew simply gave different, but not contradicting, testimony in response to materially different questions.

Finally, Walter asserts that the district court erred by allowing Davis to question Walter on behavior that occurred after Davis’s fall.  Specifically, the court allowed testimony that Walter sought assistance from his sons and sons-in-law in building a home and performing landscaping.  Davis argued that the evidence showed a relationship between the parties in which “Walter tells them [what] to do.”  Evidentiary decisions are reviewed for an abuse of discretion.  Rusciano, 445 N.W.2d at 274.  The district court did not abuse its discretion by allowing the line of questioning.  The district court allowed Davis, Bartholomew, and Walter’s sons to testify, without objection, to their past experiences in assisting Walter and their experience on the day Davis fell.  Their testimony established that Walter always controlled what they did and how they did it.  This testimony did not stand alone, but was supported by Walter’s own testimony.  Walter testified, “[W]hen I have [these men] do something, they better do it,” and that, if one did something against his wishes, he “would straighten him out.”  When asked whether he commonly asked his family for help and expected people to follow his instructions, Walter replied, “Yes. I am the boss.”  We need not decide whether the contested questioning drew only permissible habit and routine-practice evidence.  See Minn. R. Evid. 406 (stating that evidence of habit or routine practice is relevant to prove conforming conduct).  Any error from the limited post-fall questioning was harmless as it only showed that the well-established pre-fall pattern of control continued.  See Minn. R. Civ. P. 61 (stating that erroneous admission of evidence is not basis for new trial unless action affects party’s substantial rights).  Walter’s assertion that the testimony allowed the jury to infer that the family remained close and therefore had insurance coverage is speculation.


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