This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Scott Kemp,



Charles Widmer, defendant and

third-party plaintiff,



Steven Scott Saxton, third-party defendant,


Joseph Sponheim, third-party defendant,

Randy Otkin, third-party defendant,

Scott David Johnson, third-party defendant,


William Frank Buntrock, third-party defendant,


Tim Holden, third-party defendant,


Kevin John Evenson, third-party defendant,


Kandiyohi County District Court

File No. C69646

Filed September 9, 1997


Amundson, Judge

Todd A. Johnson, Johnson & Bannon, P.L.L.P., 2125 South First Street, Willmar, MN 56201 (for respondent Scott Kemp)

Paul Wocken, Willenbring, Dahl, Wocken & Zimmerman, Red River at Main, P. O. Box 417, Cold Spring, MN 56320-0417 (for appellant Charles Widmer)

L. Wayne Larson, Hulstrand, Anderson, Larson, Hanson & Saunders, P.L.L.P., 331 Professional Plaza, 331 Southwest Third Street, P.O. Box 130, Willmar, MN 56201 (for respondent Steven Scott Saxton)

Kevin A. Spellacy, Quinlivan, Sherwood, Spellacy & Tarvestad, P.A., 600 Norwest Center, P.O. Box 1008, St. Cloud, MN 56302 (for respondent Scott David Johnson)

Scott B.Graham, Graham & Yunek, 4140 Thielman Lane, Suite 207, P.O. Box 1719, St. Cloud, MN 56302-1719 (for respondent William Frank Buntrock)

Tim Holden, 419 Medayto Drive, Spicer, MN 56288 (pro se respondent)

Jay P. Yunek, Graham & Yunek, 4140 Thielman Lane, Suite 207, P.O. Box 1719, St. Cloud, MN 56302-1719 (for respondent Kevin John Evenson)

Considered and decided by Huspeni, Presiding Judge, Amundson, Judge, and Foley, Judge.[*]



Appellant Charles Widmer challenges the district court's grant of summary judgment to the third-party defendants in a personal injury lawsuit. We affirm.


On March 24, 1995, appellant Charles Widmer, Scott Kemp, and seven other men went on a fishing trip to Lake of the Woods. Widmer brought his unlicensed four-wheel, all-terrain vehicle (ATV) to the lake. The ATV was used, along with Widmer's snowmobile trailer, to transport the group and their gear to and from the resort and the location on the ice where they were fishing.

The group split expenses while on the trip, with the understanding that they would not be reimbursed for items they purchased, and that the items would be shared by all. The cost of lodging was also split equally.

On the morning of March 24, 1995, Widmer drove the group and their gear from the resort to the location on the ice where they fished most of the day. Alcohol was consumed and a few members of the group took turns driving Widmer's ATV. At approximately 5:30 p.m., the group loaded on to the ATV and the snowmobile trailer and headed back to the resort, with Widmer driving.

On the trip back to the resort, the ice began to crack. The group got off the trailer and ATV and walked to shore. Widmer drove the ATV over the ice to the shore. The group then discussed taking an alternate route back to the resort because of the ice conditions. It was agreed that an alternate route would be taken, with Widmer still driving the ATV. Tim Holden rode on the front rack of the ATV, Scott Kemp rode on the rear rack of the ATV, and the rest of the group rode on the snowmobile trailer.

While Widmer was driving, at approximately 20 miles per hour, he hit a bump and the trailer came unhitched. Kemp alleges that the trailer hitch struck and injured him.

Kemp brought a personal injury suit against Widmer, who in turn brought third-party claims against the rest of the group, alleging negligence on their part, or, in the alternative, if found liable to Kemp, claimed contribution or indemnity by the rest of the group as members of a joint enterprise.

Third-party defendants Johnson, Saxton, Evenson, Buntrock, and Sponheim brought motions for summary judgment to dismiss Widmer's claims. On December 13, 1996, the district court dismissed Widmer's claims against third-party defendants and awarded said third-party defendants their costs and disbursements. This appeal followed.


On appeal from summary judgment, this court must make two inquiries: "(1) whether there are any genuine issues of material fact and (2) whether the lower court erred in their application of the law." State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). The reviewing court must view the evidence in the light most favorable to the party challenging the summary judgment. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

I. Negligence

Widmer alleges that all members of the fishing party are equally negligent for Kemp's injuries. He contends that Kemp was injured as a result of the way the group loaded themselves and their gear on the trailer.

To maintain a claim for negligence, a plaintiff must show: (1) a duty; (2) breach of that duty; (3) a causal connection between the breach of duty and the injury; and (4) injury. Schmanski v. Church of St. Casimir of Wells, 243 Minn. 289, 292, 67 N.W.2d 644, 646 (1954). Negligence is "the doing of something which an ordinarily prudent person would not do or the failure to do something which an ordinarily prudent person would do under like or similar circumstances." Erickson v. Van Web Equipment Co., 270 Minn. 42, 49 132 N.W.2d 814, 819 (1965).

Widmer argues that the third-party defendants shifted their weight too far back on the trailer, forcing the ATV's back wheels off the ground and causing Widmer to lose control. Additionally, the weight distribution caused the trailer hitch to become disconnected from the ATV and thereby injuring Kemp.

The district court likened the members of the group to passengers in an automobile. As a passenger in an automobile, the passenger is required to exercise reasonable care, but that does not carry with it the responsibility for the management of the vehicle, nor does it create any duty to be continually on the alert to discover dangers. Hanson v. Bailey, 249 Minn. 495, 503-504, 83 N.W.2d 252, 259 (1957). Only under some unusual circumstances, such as incompetence or carelessness of the driver, is a passenger required to take some affirmative action to preserve even his own safety. Id.

While the third-party defendants were not actually "in" an automobile, they were riding on a moving vehicle and were transported from one point to another. This justifies their characterization as "passengers." As passengers, there was no evidence that any member of this group failed to exercise reasonable care. The district court found that neither the passengers, nor the driver, were aware that the weight distribution on the trailer posed a hazard prior to the accident. Nor was there any evidence that anyone warned the passengers on the trailer that their weight distribution posed a potential hazard. We conclude that the district court did not err by finding no genuine issue of material fact with regard to the issue of negligence by the third-party defendants.

II. Joint Enterprise

Widmer claims that he and the third-party defendants were part of a joint enterprise and therefore his negligence is attributable to all members of the group. See Auto Owners Ins. v. Reinsurance Ass'n of Minnesota, 514 N.W.2d 604 (Minn. App. 1994) (those involved in joint enterprise are jointly liable for injuries due to negligence).

A joint enterprise is established by a showing of two elements: (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 that purpose. Delgado v. Lohmar, 289 N.W.2d 479, 482 (Minn. 1979). In the Delgado case, the parties were on a hunting trip when one of the hunters accidently shot and injured a landowner. The Delgado court found that no joint enterprise existed because the parties were engaged in a recreational activity on a gratuitous and voluntary basis, there was no sharing of equipment or expenses, and each person had control of his own gun. Id. at 483.

In this case, Widmer attempts to distinguish Delgado by emphasizing that all expenses were shared by the group and that while driving back to the resort, he was asked to stop so that the group could put on more clothing. Widmer contends that this request and his compliance evidences the group's control over the vehicle. Even if the group did have actual physical control over the vehicle (which is highly unlikely), this alone is not sufficient to establish a joint enterprise. Actual physical control of the instrument causing injury is not necessary to establish a joint enterprise. Id. at 482. Rather, the focus is on whether the parties possessed the legal right to control. Id. Widmer was the only person who possessed the legal right to control. The Delgado court found that the hunters did not have common control over the rifle that caused the injury, even though one of the hunters testified that he felt free to warn other members of the party not to shoot in a dangerous situation, and he hoped that the other members felt the same. Id. at 483.

Widmer claims that the issue in this case is whether the group had sufficient control over which route to take back to the resort and whether the group had sufficient control over the operation and control of the ATV. Widmer contends that the group had sufficient control because they agreed to the route and when they asked him to stop the vehicle, he did. The district court found that these particular facts, while undisputed, are not sufficient to constitute a joint enterprise. The court found that the parties agreed to the alternative route because they had no other choice, most of the group was unfamiliar with the area. As to the control of the vehicle, Widmer was the sole owner and operator of the vehicle on trips to and from the resort. Asking Widmer to stop the vehicle for a moment is not sufficient to constitute legal or physical control of the ATV. We conclude that the district court did not err in determining that no genuine issue of material fact existed.


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