This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat.  480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C9-96-92


Margaret M. Betzold, Trustee
for the Heirs of Bradley,
Plaintiff,

vs.

Bridgestone/Firestone, Inc.,
a subsidiary of Bridgestone
Corporation of Japan (formerly
known as Firestone Tire &
Rubber Company), an Ohio
corporation, and
DLR Construction Co., a
Minnesota corporation,
Defendants,

and

DLR Construction Co., a
Minnesota corporation,
defendant and third-party plaintiff,
Appellant,

vs.

Rud Construction, Inc.,
third-party defendant,
Respondent.


Filed August 13, 1996
Affirmed
Norton, Judge

Dakota County District Court
File No. C8-92-8099



William M. Hart, Katherine A. McBride, Randy A. Sharbono, 
Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South 
Sixth Street, Minneapolis, MN  55402 (for Appellant DLR 
Construction Company)

Jon A. Hanson, Mark S. Brown, Hanson Lulic & Krall, Suite 500, 
920 Second Avenue South, Minneapolis, MN  55402 (for 
Respondent Rud Construction, Inc.)


	Considered and decided by Norton, Presiding Judge, 
Kalitowski, Judge, and Schultz, Judge.*

U N P U B L I S H E D   O P I N I O N

NORTON, Judge
	Appellant, a third-party plaintiff, contends the district court 
erred in granting summary judgment for respondent, the third-party 
defendant, in an indemnity and contribution action arising from a 
wrongful death action.  The district court properly determined that 
respondent owed appellant no legal duty.  We affirm.

FACTS

	Respondent Rud Construction had hired Bradley Betzold, a 
heavy-equipment mechanic who worked as an independent 
contractor, to repair some of its equipment.  Betzold was killed on 
one of Rud Construction's road work sites in 1992 when the tire 
rim on a test-roller exploded as he attempted to remove the tire.  
Appellant DLR Construction Company (DLR) owned the test-
roller and agreed to let Rud Construction use it.  The parties 
contest the nature of the arrangement.  Rud Construction contends 
DLR's vice president, Pat Murphy, agreed to loan the test-roller 
without any fee or formal agreement, as he had in 1991, whereas 
DLR contends a rental agreement required Rud Construction vice 
president Timothy Rud to pay a fee.
	Rud and Murphy did not discuss how they would handle 
any necessary repairs to the test-roller.  Murphy did not explain 
any instructions of use, maintenance, care, or repair of the test-
roller, despite the fact that he knew the tire rim would explode if a 
person removed the wrong ring of bolts when attempting to 
remove a tire.
	In the course of road construction, the test-roller began 
emitting smoke around one of the wheels.  Rud thought the smoke 
was caused by a wheel rubbing against the concrete block on the 
test-roller.  As Betzold attempted to investigate the problem, he 
removed the wrong set of lug nuts and the five-foot, 1,000-pound 
tire and rim assembly exploded, killing him.
	The trustee for Betzold's heirs brought a wrongful death 
action against DLR and Bridgestone/Firestone, Inc., the company 
that had made the divided rim assembly that exploded.  DLR 
subsequently filed a cross-claim against Bridgestone/Firestone and 
a third-party action for indemnity and contribution against Rud 
Construction.  Bridgestone/Firestone and Rud Construction 
brought motions for summary judgment.  While the matter was 
pending, the heirs reached a settlement with Bridgestone/Firestone 
and DLR in the amount of $1.45 million.  The district court then 
ordered summary judgment for Rud Construction on the basis that 
Rud Construction did not have any duty to DLR with regard to 
operating or fixing the heavy equipment.

D E C I S I O N

	On review of summary judgment, this court must determine 
whether any material issues of fact exist and whether the district 
court erred in its application of the law.  Wartnick v. Moss & 
Barnett, 490 N.W.2d 108, 112 (Minn. 1992).

	Indemnity Claim

	DLR claims indemnity from Rud Construction for the 
money paid to Betzold's trustee.  The underlying action here 
sounds in negligence, as does DLR's third-party complaint against 
Rud Construction.  Before the district court could determine that 
Rud Construction was negligent, DLR first had to establish that 
Rud Construction owed DLR a legal duty.  Zimmer v. Carlton 
County Co-op Power Ass'n, 483 N.W.2d 511, 513 (Minn. App. 
1992), review denied (Minn. June 10, 1992).  The legal duty 
between parties establishes the "measure of care to be exercised by 
the party charged with negligence."  Ruth v. Hutchinson Gas Co., 
209 Minn. 248, 255, 296 N.W. 136, 140 (1941).
	DLR contends Rud Construction owed DLR a legal duty to 
call and inform DLR of mechanical problems before undertaking 
any repairs on the test-roller.  Whether a duty exists is a question of 
law for the court to determine de novo.  Servicemaster v. GAB 
Business Servs., Inc., 544 N.W.2d 302, 307 (Minn. 1996).
	We conclude that no duty existed here.  DLR either had 
loaned or rented the test-roller to Rud Construction.  In either 
instance, such an arrangement constitutes a "bailment," which the 
court defines as
the legal relation arising upon delivery of goods 
without transference of ownership under an express 
or implied agreement that the goods be returned.

Wallinga v. Johnson, 269 Minn. 436, 438, 131 N.W.2d 216, 218 
(1964).  The three elements of a bailment are:  delivery of the 
chattel without transfer of ownership; implied or express 
acceptance of the chattel; and an express or implied agreement to 
return the chattel.  Colwell v. Metropolitan Airports Comm'n, 
Inc., 386 N.W.2d 246, 247 (Minn. App. 1986).  These three 
elements are present here.  DLR gave Rud Construction 
permission to use its test-roller.  The parties agree that DLR 
maintained ownership of the equipment; Rud Construction simply 
had the use of it on this Scott County road project.  And they 
understood that Rud Construction would be returning the test-roller 
to DLR after that phase of the project was complete.
	The fact issues that DLR asserts, surrounding the 
arrangement to use the test-roller, are moot because bailments may 
occur upon lease or loan of chattel.  Cf. Fjellman v. Weller, 213 
Minn. 457, 463-64, 7 N.W.2d 521, 526-27 (1942) (involving 
leased equipment);  Ruth, 209 Minn. at 255, 296 N.W. at 140 
(involving gratuitous loan of equipment).  In addition, regardless 
of whether the bailment involved payment, the same duty of care 
applies to Rud Construction:  to exercise reasonable care as would 
an ordinarily prudent person and return the test-roller safely to 
DLR.  See Central Mut. Ins. Co. v. Whetstone, 249 Minn. 334, 
337, 81 N.W.2d 849, 851 (1957) (bailee has duty to exercise 
degree of care that ordinarily prudent person would consider 
commensurate with nature of bailment).  That duty of care includes 
repair and maintenance of the bailor's property, unless the parties 
expressly agreed otherwise.  Fjellman, 213 Minn. at 465, 7 
N.W.2d at 527.  No express agreement occurred here because 
Murphy admitted that he had not discussed the topic of repairs and 
maintenance with Timothy Rud.  Nor are we persuaded that the 
alleged rental contract implied such a duty.  The record contains no 
memorialization of that oral contract, no proof of express terms to 
establish a basis for different rules to apply here.
	As the bailee of DLR's test-roller, Rud Construction had the 
duty to exercise reasonable care with the equipment, do routine 
maintenance and repairs, and return the equipment safely to DLR.  
With no express agreements overriding the general rules of 
bailment, Rud Construction had no duty to call DLR before 
investigating the problem with the test-roller.  Summary judgment 
for Rud Construction was proper on the indemnity claim.

	Contribution Claim

	DLR also raised a contribution claim against Rud 
Construction based on Timothy Rud's alleged failure to warn 
Betzold of the danger involved with repairing the test-roller.  To 
establish a contribution claim, DLR needed to show that Rud 
Construction was liable to Betzold.  See Hart v. Cessna Aircraft 
Co., 276 N.W.2d 166, 168 (Minn. 1979) (contribution appropriate 
when there is common liability among tortfeasors).  The Minnesota 
Supreme Court has recognized two instances when an employer 
may be held personally negligent and liable for injury to an 
independent contractor such as Betzold.
This personal negligence * * * may consist of a 
breach of a duty to exercise reasonably careful 
supervision of a jobsite * * * when the employer 
retains control or some measure of control over the 
project.  Even where the employer retains no control, 
he may still owe a duty * * * to inspect and to warn 
before turning over the jobsite.

Conover v. Northern States Power Co., 313 N.W.2d 397, 401 
(Minn. 1981) (citations omitted).
	Contrary to DLR's contention, Rud Construction does not 
fall into either of these categories.  Rud Construction maintained 
no control over Betzold's projects.  Betzold was on the road 
construction site to repair other heavy machinery on the day of the 
accident; Rud Construction simply informed Betzold of the 
equipment that needed service.  After briefly inspecting the test-
roller, Timothy Rud asked Betzold to investigate that problem as 
well.  Timothy Rud did not know the mechanics of the test-roller 
or its tire rim assembly; that is what Rud Construction paid Betzold 
to handle.
	Although Timothy Rud knew "something" was wrong with 
the wheel, he had no basis of knowledge to expect that the rim 
assembly could explode.  Consequently, Rud Construction did not 
know of any dangers of which to warn Betzold.  Indeed, it was 
DLR that had full knowledge of the danger, but took no 
precautions to warn those at risk.  At the time DLR agreed to let 
Rud Construction use the test-roller, Murphy knew that the tire rim 
assembly was prone to explode if the bolts were not removed in 
proper order.  Murphy knew that another tire rim had exploded 
when a man was working on it.  Yet Murphy told Timothy Rud 
nothing of this problem or this danger, nor did he ever remind him 
to call for instructions if they should have tire/wheel trouble.
	The supreme court has noted:
	A lender of a chattel for the gratuitous 
use of the borrower owes the latter the duty of 
warning him of only those defects of which the 
lender is aware and which might imperil the 
borrower by the intended use of the chattel.  When a 
person lends he should confer a benefit and not 
cause a harm.

Ruth, 209 Minn. at 256, 296 N.W. at 140.  DLR was the keeper of 
the knowledge about the danger of removing the tire, yet failed to 
pass it along to Rud Construction when allowing it to use the test-
roller.  Liability rests solely with DLR.  Rud Construction had no 
duty to warn its independent contractor.  Summary judgment on 
the contribution claim was appropriate.

	Affirmed.


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