This opinion will be unpublished and

may not be cited except as provided by

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






Brenda George, et al.,





Joshua Dean Marshall, et al.,



Ryan Christopher Schoen,





Safeco Insurance Co.,



Filed September 4, 2007

Toussaint, Chief Judge


Washington County District Court

File No. C7-05-003030


Thomas E. McEllistrem, Mark W. Gehan, Collins, Buckley, Sauntry & Haugh, P.L.L.P., W-1100 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for appellants)


Burke J. Ellingson, John P. Brendel, Brendel and Zinn, Ltd., 8519 Eagle Point Boulevard, Suite 110, Lake Elmo, MN  55042  (for respondent)



            Considered and decided by Willis, Presiding Judge, Toussaint, Chief Judge, and Randall, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Appellant Brenda George was injured in a traffic accident when the vehicle in which she was a passenger was struck by a vehicle driven by Joshua Marshall.  George brought a negligence action against Marshall and his passenger, respondent Ryan Schoen, among others.  As to Schoen, George sought to recover on the legal theory that he had instructed and encouraged Marshall to engage in the unlawful driving conduct that led to the accident.  The district court concluded that Schoen, as a passenger, owed George no legal duty and granted summary judgment to Schoen.  Because we agree with the district court that George has not alleged facts that would establish a prima facie case of negligence as to Schoen, we affirm.          


            The district court shall grant summary judgment if the pleadings, discovery, and affidavits show that there are no genuine issues of material fact and that either party is entitled to judgment as a matter of law.  Minn. R. Civ. P. 56.03.  “The district court must view the evidence in the light most favorable to the nonmoving party, and this court on appeal must view the evidence most favorably to the one against whom the motion was granted.”  Grondahl v. Bulluck, 318 N.W.2d 240, 242 (Minn. 1982) (citation omitted).  The existence of a legal duty is a question of law subject to de novo review.  Laska v. Anoka County, 696 N.W.2d 133, 138 (Minn. App. 2005), review denied (Minn. Aug. 16, 2005).

            Minnesota appellate courts have addressed the liability of a vehicle passenger for injuries to a third party arising out of the passenger’s control over the vehicle’s driver.  As a “general proposition,” the law does not “impose a legal duty on the passenger, which makes [the passenger] liable to others on the highway for what the driver . . . chooses to do.”  Lind v. Slowinski, 450 N.W.2d 353, 356 (Minn. App. 1990) (quoting Olson v. Ische, 343 N.W.2d 284, 287 (Minn. 1984) (noting that while passenger may have moral duty not to encourage driver to operate vehicle while intoxicated, imposing legal duty on passenger for driver’s conduct would incorrectly assume “that a passenger somehow shares in the management of the motor vehicle, and . . . the driver is amenable to the passenger’s influence”)), review denied (Minn. Feb. 21, 1990).

            In Olson, the seminal case in this area, the supreme court stated that a legal duty may be imposed on the passenger for the driver’s negligence only if the passenger “active[ly] interfere[s]” with the driver, or the passenger has a “special relationship” with the driver that would create in the passenger the duty to control the conduct of the driver.  Olson, 343 N.W.2d at 288; see Stepnes v. Adams, 452 N.W.2d 256, 258-59 (Minn. App. 1990), review denied (Minn. May 7, 1990); Lind, 450 N.W.2d at 356-57.    

            Viewing the evidence in the light most favorable to George, we conclude that Schoen and Marshall did not have the “special relationship” contemplated by law.  A “special relationship” is defined to mean a dependency relationship such as “parent-child, master-servant, land possessor, and custodian of a person with dangerous propensities,” as well as “carrier-passenger, innkeeper-guest, landowner-invitee, and certain custodianships.”  Olson, 343 N.W.2d at 288.  Minnesota courts have declined to construe as a “special relationship” a friend who was a passenger in a vehicle driven by an inebriated friend, id.; a friend who drove her own vehicle behind the vehicle of her obviously inebriated friend to ensure that she made it home safely, Stepnes, 452 N.W.2d at 258; and a woman who was injured in a traffic accident after her boyfriend asked her to sit on his lap in a vehicle driven by an inebriated driver.  Lind, 450 N.W.2d at 355, 357.  While the record establishes that Marshall and Schoen were good friends who had a long-standing relationship, George has not alleged facts that would establish that they had the special relationship contemplated by law that would give Schoen the legal right to control or influence Marshall’s driving conduct.  See Stepnes, 452 N.W.2d at 259 (indicating that person who acted independently of friend could not be in “special relationship” with friend). 

            Also viewing the evidence in the light most favorable to George, we conclude that Schoen did not actively interfere with Marshall’s driving.  The record suggests that Schoen may have attempted to control Marshall’s driving conduct by instructing him to make a right-hand turn from a left turn lane, yelling at Marshall that they needed to get to Wyoming from Forest Lake “now,” and urging him to pass an unidentified blue pickup truck just before Marshall lost control of his vehicle and collided with George’s vehicle.  This conduct, however, does not constitute the “active interference” required to impose a legal duty on Schoen; the duty may be imposed only where there has been clear interference with the driver by the passenger, such as “grabbing the steering wheel.”  Olson, 343 N.W.2d at 288; see Lind, 450 N.W.2d at 357 (referring to active interference as “physical[] interfere[nce]”).  In Olson, the court noted that while a passenger may have a moral duty not to “encourage” a driver’s bad conduct, it rejected imposing a legal duty on the passenger “for what the driver himself chooses to do.”  Olson, 343 N.W.2d at 287.  Here, Schoen’s encouragement was consistent with Marshall’s own will.  As such, it does not constitute sufficient “active interference” with Marshall’s driving to impose liability for the accident on Schoen.

            George also contends that Schoen’s conduct falls squarely within the liability provisions of Restatement (Second) of Torts § 876 (1979).  Under this section, a person who knowingly acts “in concert” with a tortfeasor or pursuant to a “common design” with the tortfeasor, or who “gives substantial assistance” to the tortfeasor may be liable for injuries to a third party.[1]  George contends that the district court erred by failing to analyze the facts of this case under section 876.

            Section 876 was discussed but not specifically adopted by the courts in Olson and Lind, and both courts rejected application of this tort theory under the facts of those cases.  Olson,343 N.W.2d at 289; Lind,450 N.W.2d at 357.  In Lind,this court noted that the restatement is an “exception[] to the general rule against passenger liability” and stated that “[f]or this theory to be applicable, the participants must . . . know of the plan and its purpose and take affirmative steps to encourage the achievement of the tortious result.”  Lind,450 N.W.2d at 357.  Even if section 876 were found applicable under the facts alleged here, no Minnesota case has applied this theory when the “substantial assistance or encouragement” consists of a passenger orally encouraging a driver to operate a vehicle in contravention of motor vehicle laws.  While the district court did not specifically address section 876, the court implicitly rejected it by applying the general rule and stating that as a “logical and prudent extension” of Olson and Lind, it would “confine potential liability solely to the driver” if the passenger’s conduct consisted of “merely verbally urging a driver toward[s] certain conduct.”  Because we conclude that Olson and Lind are controlling,and George does not offer a factual basis for expanding the potential liability of Schoen for the driving conduct of Marshall, the district court properly granted summary judgment to Schoen.


[1] Restatement (Second) of Torts § 876 (1979) provides:


For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he

(a)       does a tortious act in concert with the other or pursuant to a common design with him, or

(b)       knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or

(c)       gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.