This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






Jerilynn Brunell, et al.,


Barb Kyle, et al.,

Joel Erickson,


Filed April 17, 2007


Peterson, Judge


Washington County District Court

File No. C0-05-4794


Logan N. Foreman, III, 333 South Seventh Street, Suite 1170, Minneapolis, MN  55402; and


Krister D. Johnson, 14 North Seventh Avenue, St. Cloud, MN  56303 (for appellants)


Karen R. Cote, Brett W. Olander & Associates, 1000 Fifth Street Center, 55 East Fifth Street, St. Paul, MN  55101 (for respondents Barb Kyle et al.)


Anthony T. Smith, Michelle Christensen, Murnane Brandt, 30 East Seventh Street, Suite 3200, St. Paul, MN  55101 (for respondent Joel Erickson)


            Considered and decided by Lansing, Presiding Judge; Peterson, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N


            In this appeal from summary judgment, appellants argue that the district court erred in concluding that respondents did not owe appellants a duty of care.  We affirm.


            Appellant Jerilynn Brunell was injured when a horse named Sunshine kicked her in the chest.  Respondent Barb Kyle (mother) owned Sunshine and boarded her on property owned by respondent Joel Erickson[1] (landowner).  Landowner’s property was next door to appellant’s property.  On the day she was kicked, appellant and mother’s 13-year-old daughter, respondent Sallie Kyle (daughter), went on a trail ride for about an hour.  Appellant rode a horse named Cody, and daughter rode Sunshine.  During the ride, the horses walked next to each other and took turns following each other.  After the ride, appellant took Cody home, removed his saddle, and brushed him.  Daughter led Sunshine to landowner’s property, removed the tack, and began brushing her. 

            Appellant wanted to show mother a horse named Skeeter, so she and her husband, appellant David Brunell (husband), returned to landowner’s property with Cody and Skeeter.  Husband took Skeeter with him as he talked with landowner, and appellant took Cody with her as she talked with mother.  When daughter finished brushing Sunshine, she led the horse to where mother and appellant were talking.  Daughter stood approximately 10-15 feet from mother, holding the lead rope as Sunshine ate grass.  Appellant and mother talked for about ten minutes.  During their conversation, Sunshine began to prance.  Appellant asked what was happening with the horse, and mother explained that the horse might be going into heat.  Sunshine then sprayed urine.  Appellant commented that she had not seen something like that before.  Then, appellant heard a loud whinny noise, and Sunshine whirled around and kicked appellant.   

            Appellants brought negligence claims against landowner, mother, daughter, and daughter’s father, Kevin Kyle.  Appellants alleged that mother, father, and daughter were negligent in failing to control, restrain, hold, and handle Sunshine and that mother and father were negligent in failing to properly supervise daughter and in allowing daughter to handle Sunshine when they knew that daughter was not able to restrain the horse.  Appellants alleged that landowner was negligent in allowing Sunshine on his property when he knew about the horse’s dangerous nature and propensities, in allowing daughter to handle the horse when he knew or should have known that she was not able to properly restrain the horse, and in having no rules or regulations regarding horses on his property.  Appellants alleged that all respondents were negligent in failing to warn appellant Jerilynn Brunell about Sunshine’s dangerous nature and propensity.  All respondents moved for summary judgment arguing that they did not owe a duty of care to appellants.  Appellants moved to amend their complaint to include a common-law scienter claim and to allege that respondents were engaged in a joint enterprise.  Based on its determination that respondents did not owe appellants a duty of care, the district court granted respondents’ motion for summary judgment and denied appellants’ motion to amend.  This appeal followed.


            A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law.  On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.


Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (citation omitted).  On an appeal from summary judgment, we determine whether there are any genuine issues of material fact and whether the district court erred in applying the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).

[T]here is no genuine issue of material fact for trial when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.


DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).

1.         Claims against mother, father, and daughter

To establish negligence, a plaintiff must demonstrate that a duty of care existed, that the defendant breached this duty, and that the breach was the proximate cause of an injury to the plaintiff.  State Farm Fire & Cas. v. Aquila, Inc., 718 N.W.2d 879,887 (Minn. 2006).  A defendant in a negligence action ordinarily is entitled to summary judgment when the record reflects a complete lack of proof on any essential element of the claim.  Gradjelick v. Hance, 646 N.W.2d 225, 230 (Minn. 2002).  

Generally, whether a legal duty exists is for the court to determine as a matter of law.  Hellman v. Julius Kolestar, Inc., 399 N.W.2d 654, 656 (Minn. App. 1987).     

            The common-law test of duty is the probability or foreseeability of injury to plaintiff.  As expressed by Chief Judge Cardozo, “The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension.”. . .


            For the risk of injury to be within the defendants’ “range of apprehension,” it is not necessary that the defendants should have had notice of the particular method in which an accident would occur, if the possibility of an accident was clear to the person of ordinary prudence.


Connolly v. Nicollet Hotel, 254 Minn. 373, 381-82, 95 N.W.2d 657, 664 (1959) (quoting Palsgraf  v. Long Island R.R., 162 N.E. 99, 100 (N.Y. 1928)). 

            This does not mean that showing that there is only a possibility of an accident establishes a duty of care.  The supreme court has explained that, “Reasonable care requires taking precautions against ordinary risks or those which can reasonably be anticipated, but no one can be expected to guard against an occurrence which is so unlikely, remote, or improbable that the possibility of such an occurrence is commonly disregarded.”  Luke v. City of Anoka, 277 Minn. 1, 8, 151 N.W.2d 429, 434 (1967).

            In Luke, the driver of an automobile who had stopped at an intersection along a parade route in the City of Anoka suffered a sudden heart attack, lost consciousness within 10 or 15 seconds, and died.  Id. at 4-5, 151 N.W.2d at 432.  The automobile accelerated forward out of control and struck spectators at the parade.  Id.  After the injured plaintiffs obtained a general verdict finding the city liable, the district court set aside the verdict and granted judgment in favor of the city notwithstanding the verdict.  Id. at 2, 151 N.W.2d at 430-31.  The supreme court affirmed the district court on governmental-immunity grounds.  Id. at 7, 151 N.W.2d at 433-34.  In addition, the supreme court noted that the district court could also have directed a verdict in favor of the city on the ground that the plaintiffs failed to establish any negligence.  Id. at 8, 151 N.W.2d at 434.  The supreme court explained:

            With respect to the city, disregarding the doctrine of governmental immunity and assuming the city has a duty to exercise reasonable care in regulating traffic to protect the paraders and spectators from injury, we cannot believe, under the circumstances of this case, that such duty would require the city to take the extraordinary measures necessary to protect the public from the consequences of [the driver’s] disastrous heart attack.  A municipality, indeed no person, may be held liable for an accident such as this one which could not have been reasonably foreseen or prevented by the exercise of reasonable care.


Id. (citation omitted).  Applying this principle to the present case, we conclude that even assuming that mother, father, and daughter had a duty to exercise reasonable care in controlling their horse, they may not be held liable for the accident in which appellant was kicked because the kicking incident could not have been reasonably foreseen.

            Appellants argue that the accident was reasonably foreseeable because Sunshine was an ill-natured horse.  Appellants contend that they submitted evidence that Sunshine exhibited dangerous behavior and personality changes.  This evidence included daughter’s statements that “Sunshine never really liked horses being close to her at any time.  So she’d put her ears back, try to chase [Beauty[2]] out of the way”; “[Sunshine] was crabby a lot of the time, but that was just when she was in the pasture, around other horses.  When she was just by herself or with me or my mom she was fine.  She was always calm”; “Sunshine – when she would get around other horses she was very prancie.  And then – the horse Beauty that she had at the time, she was very hyper and she would run up to you in the pasture and Sunshine would get – was very prancie and I didn’t like that at all”; “[Sunshine] would get kind of cranky”; and when Sunshine was in heat, “She would get very cranky.  She would throw up her tail at any horse that walked by.  In the pasture she was, you know, just crankier than usual.” 

            The evidence also included a statement by mother that a mare in heat will kick.  Speaking about mares in general and not about what she had seen Sunshine do, mother stated, “They’re kicking – they’ll turn around and kick at the gelding or the stallion that’s going to mount them.”  Also, landowner testified as follows in his deposition:

Q.        Okay.  What problems, if any, did you have with [Sunshine]?

A.        I didn’t feel I had any problems with Sunshine prior to the incident.

Q.        Okay.  Did [Sunshine] get along with Beauty?

A.        For the most part.  They did have some times they would have disagreements.

Q.        Okay.  And how would that act out?

A.        I – always in the pasture.  And perhaps Sunshine would lay her ears back and Beauty would quickly move away.

Q.        Okay.  Did Sunshine ever strike Beauty?

A.        Not that I seen.

Q.        Did you ever see evidence of it, though?

A.        Beauty was injured once.[3]

Q.        Where?

A.        Her hind leg.

Q.        Did Sunshine’s personality change when she was in heat?

A.        Yes.

Q.        How so?

A.        Typical to a mare.

Q.        And how would you define that?

A.        Moody.

Q.        Okay.  Anything else?

A.        No.

Q.        [Daughter] described it as crabby.

A.        Sounds accurate. 


            This evidence is not sufficiently probative to show that respondents should have reasonably foreseen that Sunshine would suddenly start kicking.  The evidence does not indicate that Sunshine kicked when she was crabby or cranky or when she pranced.  And the statement that mares will kick when in heat is a statement about mares in general; it does not describe Sunshine’s past behavior while in heat.  Furthermore, the statement describes a mare’s behavior when a stallion or gelding is going to mount the mare.  That was not happening when Sunshine started kicking. 

            In its entirety, the evidence shows that just as any driver could have a sudden heart attack and lose control of an automobile, it is possible that any horse could suddenly start kicking.  But the possibility that any horse could suddenly start kicking does not show that it was reasonably foreseeable that Sunshine would suddenly start kicking when she did.  The district court did not err in determining that it was not reasonably foreseeable that Sunshine would suddenly start kicking and, therefore, mother, father, and daughter did not owe appellants a duty of care.

2.         Claim against landowner

Appellants contend that landowner was negligent based on a premises-liability theory.  An analysis of an action brought against a landowner alleging negligence begins with an inquiry into whether the landowner owed the entrant a duty.  Baber v. Dill, 531 N.W.2d 493, 495 (Minn. 1995).  “A property owner has a reasonable duty to protect persons from being injured by foreseeable dangerous conditions on the property, unless the risk of harm is ‘obvious.’”  Rinn v. Minn. State Agric. Soc’y, 611 N.W.2d 361, 364 (Minn. App. 2000).  As we have already determined, it was not reasonably foreseeable that Sunshine would suddenly start kicking.  Therefore, landowner did not have a duty to protect appellants from Sunshine.

3.         Motion to amend complaint

            After a response has been filed, a party may amend its complaint only with the consent of the adverse party or by leave of the court.  Minn. R. Civ. P. 15.01.  “The decision to allow a party to amend its complaint after responsive pleading has been made lies within the sound discretion of the [district] court.”  Wessin v. Archives Corp., 592 N.W.2d 460, 468 (Minn. 1999).  The district court should liberally grant motions to amend when justice requires and doing so will not result in prejudice to the adverse party. Minn. R. Civ. P. 15.01; Fabio, 504 N.W.2d at 761.  “A court, however, may properly deny such amendments ‘when the additional alleged claim cannot be maintained.’”  Stead-Bowers v. Langley, 636 N.W.2d 334, 341 (Minn. App. 2001) (quoting Hunt v. Univ. of Minn., 465 N.W.2d 88, 95 (Minn. App. 1991)), review denied (Minn. Feb. 19, 2002).  We review the denial of the motion to amend under an abuse-of-discretion standard.  Fabio, 504 N.W.2d at 761.

            A plaintiff may recover in a “scienter” action “by proving that (1) the animal had a vicious propensity, and (2) the animal’s keeper had notice of the vicious propensity.” Ryman v. Alt, 266 N.W.2d 504, 506 (Minn. 1978).  The scienter theory “is not based on negligence; once the animal’s dangerousness and the keeper’s scienter are proved, liability follows unless the person injured voluntarily and knowingly assumed the risk of injury.”  Id. at 508.  Because appellants did not present evidence sufficient to show that respondents had notice that Sunshine had vicious propensities, the district court did not clearly abuse its broad discretion by denying appellants’ motion to add a scienter claim.

            A joint enterprise exists when there is (1) a mutual undertaking for a common purpose and (2) a right to a voice in the direction and control of the means used to carry out the common purpose.  Powell v. Trans Global Tours, Inc., 594 N.W.2d 252, 255-56 (Minn. App. 1999).  “[A] joint venture or joint enterprise generally arises when necessary to impute negligence between two entities that otherwise have no legal relationship.”  Stelling v. Hanson Silo Co., 563 N.W.2d 286, 290 (Minn. App. 1997).  We agree with the district court that because the evidence is insufficient to show that respondents were negligent, there is no basis to impute negligence, and, therefore, we conclude that the district court did not abuse its discretion in denying appellants’ motion to amend to allege a joint enterprise. 


[1] Erickson kept the horse in a pasture on his hobby farm and provided hay and water for the horse in exchange for $50 a month and the right to ride the horse.



[2] Beauty was a horse that shared a pasture with Sunshine on landowner’s hobby farm.


[3] In a recorded statement, landowner said that Sunshine had kicked and injured Beauty at one time.  But as the district court noted, no one witnessed this incident, and, therefore, speculation about what happened is not an evidentiary basis for any conclusion about Sunshine’s disposition.  See Minn. R. Evid. 602 (stating “A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”).