This opinion will be unpublished and

may not be cited except as provided by

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




Richard Croaker, a minor,

by and through his natural father,

Charles D. Croaker, Sr.,



Gordon Mackenhausen and Karen Mackenhausen,

individually and as owners and operators

of Sah Kah Tay Resort,

defendants and third-party plaintiffs,



Duane Lee McFarland, et al.,

Third-Party Defendants.

Filed July 14, 1998

Affirmed as modified

Foley, Judge*

Cass County District Court

File No. C0-94-903

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

Michael D. Dosahan, Fredric A. Bremseth, Thomas W. Geng, Doshan & Bremseth, 810 East Lake Street, Wayzata, MN 55391-1839 (for respondent)

Craig S. Hunter, Powell, Powell & Hunter, 713 Beltrami Avenue, P.O. Box 908, Bemidji, MN 56619-0908 (for appellants)

Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Foley, Judge.


FOLEY, Judge

In this negligence action based on premises liability, appellants (1) seek review of the trial court's order denying their motions for JNOV and/or a new trial, (2) argue that the jury's award of $50,000 for future medical expenses is not supported by the evidence, and (3) assert that the special verdict form should have included separate questions for each of the five elements of Restatement (Second) of Torts, § 339. Because we conclude there is ample evidence on each of the Restatement elements and that the special verdict form used was within the trial court's discretion, we affirm on those issues. We also conclude that the jury's award for future medical expenses exceeds the amount established by the evidence and we modify that award.


Five boys, ranging in age from three to nine years old, were playing with matches in an inoperable van owned by appellants Gordon and Karen Mackenhausen and parked on the Mackenhausens' resort property. One of the boys crawled through a gap under the door of an adjacent pole building and removed gasoline from a boat stored inside the building. The gasoline was set on fire in the van and it exploded. One boy died in the van. Respondent Richard Croaker and another boy were burned. Suit was brought on behalf of those three children against the Mackenhausens. The Mackenhausens brought a third-party action against the two oldest boys, who were not injured.

The trial court granted summary judgment for the Mackenhausens and this court reversed. Howard v. Mackenhausen, 553 N.W.2d 435 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996). This court held that the evidence was sufficient to create a jury question on whether (1) the Mackenhausens had reason to know that children were likely to trespass in the area, (2) the Mackenhausens should have known that conditions presented an unreasonable risk of death or serious bodily harm to trespassing children, and (3) the children could appreciate the risks involved. Id. at 438-39. This court held that the pivotal issue of foreseeability should be submitted to a jury, rather than being resolved by summary judgment. Id. at 439 (quoting "the better rule" announced in Szyplinski v. Midwest Mobile Home Supply Co., 308 Minn. 152, 156, 241 N.W.2d 306, 309 (1976)).

Other claims were settled after this court's decision, but Richard Croaker's case went to trial. At the close of the evidence, the trial court directed a verdict in favor of one of the older boys, Charles Croaker, Jr. The jury found that the negligence of the Mackenhausens was a direct cause of Richard Croaker's injuries, found no negligence on the part of any child, and attributed fault 60% to the Mackenhausens and 40% to Richard Croaker's father. The jury awarded $20,000 for pain, disability, disfigurement, and emotional distress suffered by Richard Croaker before trial; $66,000 for future pain, suffering, emotional distress, and embarrassment; and $50,000 for future medical expenses. The jury also awarded damages to Richard's father for expenses incurred in caring for his son, in an amount agreed by the parties. The trial court denied the Mackenhausens' motion for JNOV or new trial.


I. Judgment Notwithstanding the Verdict

In reviewing the denial of JNOV, "we must affirm if there is any competent evidence reasonably tending to sustain the verdict." Rettman v. City of Litchfield, 354 N.W.2d 426, 429 (Minn. 1984). We must draw every reasonable inference supporting the verdict, must assume that the jury found the evidence of the prevailing party to be credible, and must affirm unless we are "able to determine that the evidence is practically conclusive against the verdict, or that reasonable minds could reach but one conclusion against the verdict." Seidl v. Trollhaugen, Inc., 305 Minn. 506, 507, 232 N.W.2d 236, 239 (1975).

The Mackenhausens claim that the trial court incorrectly denied their motion for JNOV, feeling constrained by our previous decision to defer to the jury's verdict even though there was insufficient evidence to support the jury's verdict on the first two elements of Richard Croaker's claim under Restatement (Second) of Torts § 339. We conclude that the evidence on each element is sufficient to sustain the verdict, but we will discuss each element separately.

In Minnesota, a plaintiff seeking to recover against a landowner for injuries to a trespassing child injured by an artificial condition must establish each of the elements of section 339. Syzplinski, 308 Minn. at 155, 241 N.W.2d at 309.

A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if

(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and

(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

Restatement (Second) of Torts § 339 (1965).

A. Element (a)

To satisfy element (a) of section 339, it is not necessary that a child trespass "because of the attractiveness of the particular condition." Weber v. Saint Anthony Falls Water Power Co., 214 Minn. 1, 5, 7 N.W.2d 339, 342 (1942). If the landowner or possessor knows or should know that children are likely to trespass on a part of the land on which there is a condition that is likely to be dangerous to them because of their childish propensities, this element is satisfied. Id. (quoting and applying commentary virtually identical to Restatement (Second) of Torts § 339 cmt. to (a) (1965)). In the first appeal, we held that the plaintiffs could satisfy element (a) by showing that children "frequented the vicinity," which would place the Mackenhausens "on notice that children were likely to trespass in the location where the allegedly dangerous condition existed." Howard, 553 N.W.2d at 438. In so holding, we cited Kukowski v. Wm. Miller Scrap Iron & Metal Co., 353 N.W.2d 638, 642 (Minn. App. 1984), in which we affirmed a jury verdict for an injured child based on "evidence that children frequently biked and fished in the vicinity."

The trial record establishes that more than 30 children stayed on the Mackenhausens' resort property as guests. The Mackenhausens knew that these boys (1) often traveled the road within a few yards of the parked van and (2) frequented the resort store and game room; the van had been entered and vandalized before the date of the explosion; the gap under the door to the pole building was large enough for an animal or child to enter; and the Mackenhausens were aware that children are inquisitive. There is ample competent evidence to establish that the Mackenhausens knew that children were likely to trespass in the vicinity and that evidence satisfies element (a).

B. Element (b)

To satisfy element (b), Richard Croaker was required to establish that the Mackenhausens knew or had reason to know of the condition involved and that it presented an unreasonable risk of death or serious bodily harm to children in the vicinity. We held that the issue of foreseeability was for the jury to decide. Howard, 553 N.W.2d at 439. The Mackenhausens didn't consider the gap under the door to the pole building to be dangerous to children. But the evidence at trial and reasonable inferences therefrom establish that the Mackenhausens knew the gap was large enough for small children to enter the building; the side window of the van was broken by vandals before the explosion and not repaired; children or trespassers could have been in the van before the date of the explosion; the pole building was being rented for boat storage; and although the Mackenhausens kept their gasoline locked in another building for safety and to avoid thefts, there's no evidence that they made any inquiry or imposed any conditions on the renter's storage of gasoline. There is ample competent evidence that the Mackenhausens knew or should have known that the artificial condition on their property presented an unreasonable risk to children.

C. Element (c)

This element requires that the children, due to their youth, fail to discover the condition or realize the risk. There is uncontroverted evidence from the children and two expert witnesses that the children could not appreciate the explosive nature of lighting gasoline on fire. The evidence at trial satisfies the third element.

D. Element (d)

This element requires a weighing of the utility of maintaining the condition and the burden of eliminating the danger against the risk to children. The Mackenhausens conceded that the cost to level the ground or close the gap beneath the pole building was slight or minimal; they previously placed a board to keep animals out during the off season; and there was no proof that securing the inoperable van or the gasoline would be burdensome. There is competent evidence satisfying the fourth element.

E. Element (e)

The focus of this element is on the exercise of reasonable care to eliminate the danger or otherwise protect children. "We, as well as other courts, have frequently commented upon the high degree of vigilance necessary to constitute ordinary care where children may reasonably be expected to be present." Heitman v. Lake City, 225 Minn. 117, 122, 30 N.W.2d 18, 22-23 (1947) (citing Schmit v. Village of Cold Spring, 216 Minn. 465, 13 N.W.2d 382 (1944)).

The jury was entitled to infer that reasonable care would require the Mackenhausens to direct that their renter remove gas cans and gasoline from stored boats and keep them in a more secure place; to board up the gap under the door and the van; or to take at least as much care to exclude small children during the summer as they took during the winter to exclude animals. Evidence at trial satisfied the fifth element.

Because there was sufficient evidence to sustain the jury's verdict on Richard Croaker's claim under section 339 of the Restatement, the denial of JNOV was proper.

II. New Trial

"On appeal from a denial of a motion for a new trial, the verdict must stand unless it is manifestly and palpably contrary to the evidence, viewed in a light most favorable to the verdict." ZumBerge v. Northern States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992).

The trial court denied the motion for a new trial for the same reasons it denied JNOV. The Mackenhausens urge this court to give deference to the trial court's expression of disapproval of the verdict, citing Clark v. Chicago & N.W. Ry., 226 Minn. 375, 33 N.W.2d 484 (1948). But the trial judge in Clark denied the defendant's motion for JNOV, deferring to the jury's verdict, and the supreme court affirmed, concluding that the jury was entitled to believe plaintiff's evidence and was "justified in drawing" inferences establishing the defendant's liability. Id. at 381, 33 N.W.2d at 487-88. Viewing the evidence in the light most favorable to the verdict, the motion for a new trial was properly denied.

The Mackenhausens' reliance on Raymond v. Baehr, 282 Minn. 102, 163 N.W.2d 54 (1968), is misplaced. In that case, the court was unable to determine the theory on which the jury's finding of liability was based. Id. at 108, 163 N.W.2d at 58. By contrast, the record in this case amply supports the verdict of liability based on the claim under section 339, including elements (a) and (b).

III. Amount of Future Medical Expenses

In denying the Mackenhausens' post-trial motions, the trial court found that the jury award of $50,000 for future medical expenses was not contrary to the evidence at trial. Because determination of the amount was left to the jury, the court declined to find the amount excessive, notwithstanding the stipulation of the parties, the life expectancy of the child, and the uncertainty concerning whether all possible procedures will be performed in the future.

This court will reverse a finding of fact only "if, upon review of the entire evidence, we are `left with the definite and firm conviction that a mistake has been made.'" In re Guardianship of Dawson, 502 N.W.2d 65, 68 (Minn. App. 1993) (quoting Gjovik v. Strope, 401 N.W.2d 664, 667 (Minn. 1987)), review denied (Minn. Aug. 16, 1993). We will disturb the trial court's determination that a future damages award is within the highest bounds allowed by the evidence only for a clear abuse of discretion. Dallum v. Farmers Union Cent. Exch., Inc., 462 N.W.2d 608, 614 (Minn. App. 1990), review denied (Minn. Jan. 14, 1991). There are two requirements for the award of future medical expenses: (1) future medical treatments will be required and (2) the necessity and amount of the damages must be established through expert testimony. Lind v. Slowinski, 450 N.W.2d 353, 358 (Minn. App. 1990), review denied (Minn. Feb. 21, 1990); see 4 Minnesota Practice, CIVJIG 159 (1986) (such medical expenses reasonably certain to be required in future). There can be no recovery for future damages that are remote, speculative, or conjectural, but proof to an absolute certainty is not required. Austin v. Rosecke, 240 Minn. 321, 322, 61 N.W.2d 240, 242 (1953).

The Mackenhausens do not dispute that Richard Croaker met the first Lind requirement. Instead, they argue that Croaker failed to prove damages in excess of the stipulated amount of $15,376. Dr. Raymond Ortega provided the only expert testimony regarding the cost of future medical expenses, and he testified that the cost of proposed surgeries on Richard Croaker's hands was $6,400. Our close review of the record reveals that there was no testimony regarding the cost of facial surgeries, physical therapy, anesthesia, medication, or hospitalization. However, because the parties stipulated to $15,376 for future medical expenses, we modify the judgment to reflect that sum. To the extent that the jury's award exceeds the stipulated figure, there is no support in the record and the award is speculative.

IV. Failure to Submit Special Interrogatories

The Mackenhausens argue that special interrogatories should have been separately given for each of the five elements of Restatement (Second) of Torts § 339. "The trial court has broad discretion both in writing jury instructions and in framing special verdict questions." Dang v. St. Paul Ramsey Med. Ctr., 490 N.W.2d 653, 658 (Minn. App. 1992), review denied (Minn. Dec. 15, 1992). The trial court instructed the jury on each of the five elements of section 339 and the jury was given a copy of the instructions for review during deliberations. The trial court did not abuse its discretion in framing the verdict and not requiring jurors to answer special interrogatories on each element of the Restatement claim.

Affirmed as modified.