This opinion will be unpublished
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Shawn Davis, et al.,
defendant and third party plaintiff,
Paul Walter, et al.,
third party defendants,
third party defendant,
Filed January 2, 2007
Mower County District
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
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.
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.
D E C I S I
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,
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
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
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
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.
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
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
fall. Specifically, the court allowed
testimony that Walter sought assistance from his sons and sons-in-law in
building a home and performing landscaping.
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