This opinion will be unpublished and

may not be cited except as provided by

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





David Pajunen, et al.,



Monson Trucking, Inc.,


Benjamin Remington, et al.,



Monson Trucking, Inc., defendant and third-party plaintiff,



Cutler-Magner Company, third party defendant,


Filed July 21, 1998

Reversed and remanded for a new trial

Huspeni, Judge

St. Louis County District Court

File No. C395100901

Mark M. Suby, Hansen, Dordell, Bradt, Odlaug & Bradt, P.L.L.P., 3900 Northwoods Dr., Suite 250, St. Paul, MN 55112 (for appellant Monson Trucking)

Kathleen S. Bray, John Kelly, Hanft, Fride, O'Brien, Harries, Swelbar & Burns, P.A., 1000 U.S. Bank Place, 130 W. Superior St., Duluth, MN 55802 (for respondent Cutler-Magner Co.)

J. Carver Richards, Paul D. Cerkvenik, Trenti Law Firm, 1000 Lincoln Bldg., Virginia, MN 55792 (for respondents Pajunen)

Considered and decided by Short, Presiding Judge, Huspeni, Judge, and Willis, Judge.



Appellant moved for a new trial on the grounds that the trial court erred in aggregating the fault of individual defendants. The motion was denied. Because we conclude as a matter of law that defendants were not jointly liable, we reverse and remand for a new trial on the issue of liability.


The accident giving rise to this action involved three 18-wheeler trucks travelling on Ontario Highway 502, a winding, hilly, two-lane secondary road with narrow shoulders. At the time, the highway was covered with transparent ice.

The first truck to arrive at the scene, owned by appellant Monson Trucking, Inc. and driven by its employee, Benjamin Remington, was travelling north. As Remington came over a hill, he decided to stop at the first available stretch of road because of the ice. He pulled his truck to the east edge of the road and parked half off the road, blocking about five feet of the 11-foot northbound lane.

The second truck to arrive, also owned by appellant Monson, was travelling south. It was driven by Monson employee Bernard Mettler, whose driving was being checked that day by Ronald Forsman, another Monson employee. Mettler and Forsman also decided to pull off the road. They parked on the west side, about 300 feet north of Remington's truck on the east side. They then got out of their truck and crossed the road on foot to speak to Remington.

While the three were conversing, a third truck, owned by respondent Cutler-Magner Company and driven by its employee, respondent David Pajunen, approached from the south. As Pajunen came over the hill, he saw the Remington truck parked on the east side of the road blocking part of the northbound lane at the bottom of the hill and further on the Mettler/Forsman truck parked on the west side of the road blocking part of the southbound lane. Pajunen first pulled to the left to avoid hitting the Remington truck. The Monson drivers testified that he then turned his wheels to the right, but his truck continued to move straight or to the left. Pajunen's truck crossed the road, collided with the Mettler/Forsman truck on the west side, slid back across the road, rolled over into the ditch on the east side, and burst into flames. Pajunen was severely injured.

Pajunen brought an action against Monson and the three Monson drivers; they in turn sued Cutler-Magner. The trial court granted respondents' request to aggregate the fault of all the Monson drivers. The jury found Pajunen 35% liable and the Monson drivers collectively 65% liable.

Monson moved for a new trial on liability or in the alternative for judgment notwithstanding the verdict, arguing that the trial court erred as a matter of law in aggregating the Monson drivers' fault.[1] The trial court denied the motion and this appeal resulted.


When a trial court has based its denial of a motion for a new trial on an error of law, a de novo standard of review applies. Halla Nursery v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990).

Minn. Stat. § 604.0l, subd. 1 (1996), provides that:

The court may, and when requested by any party shall, direct the jury to find separate special verdicts determining the amount of damages and the percentage of fault attributed to each party * * *.

Monson requested that the trial court have the jury find separate percentages of fault for Remington and for Mettler/Forsman. The court, however, asked the jury only to compare the collective fault of all three Monson employees with Pajunen's fault. We conclude that aggregation of the fault of the Monson employees was prejudicial error[2] and that a new trial must be had on liability. See Marier v. Memorial Rescue Serv., 296 Minn. 242, 246, 207 N.W.2d 706, 709 (1973) (refusing to extend joint venture aggregation to cases where defendants are merely concurrently negligent). See also Cambern v. Sioux Tools, Inc., 323 N.W.2d 795, 798 (Minn. 1982).

Respondents rely on the doctrine of vicarious liability (under the theory of respondeat superior) to support aggregation of fault. We agree that because the Monson employees were acting within the scope of their employment, the issue of vicarious liability of their employer was properly addressed in this case. However, the presence of vicarious liability unfortunately served to cloud the question of whether aggregation of fault was proper.

Unless we can identify a joint duty of the Monson employees to Pajunen or a joint venture of the Monson employees, that reliance is misplaced. See id. at 798. We conclude that no joint duty or joint venture can be found under the facts of this case.[3] The Monson employees were not involved in a common enterprise or activity giving rise to a joint duty to Pajunen. Each Monson driver had only the individual duty to Pajunen that any driver has to any other. The fact that the Monson employees had a common employer was entirely incidental to the circumstances that caused the accident. As Monson persuasively argues, if either Monson truck had been owned by another company, the question of aggregating fault would never have arisen. The fault of the driver of each of the three trucks would have been separately determined as a matter of course. The three drivers here were functioning completely independently. There was no more connection between the Monson drivers than between either of them and Pajunen. Their individual liability should have been separately determined, and the vicarious liability of Monson for each driver should also have been separately determined.

Our resolution of the question of aggregation of fault is consistent with case law. In Cambern, an injured employee sued the manufacturer of the tool that injured her; the manufacturer then sued the employer. The supreme court rejected the employee's argument that her employer and the manufacturer had "joint and overlapping" duties that would make aggregation appropriate.

[E]ach defendant here owed plaintiff separate, distinct duties, duties that differed in nature and degree. * * * [The manufacturer and the employer] are simply concurrently negligent.

Id. at 798-99. Similarly, the Monson drivers here owed Pajunen separate, distinct duties. Finally, the circumstances of this case are readily distinguishable from the situations in cases where fault has been appropriately aggregated. See, e.g., Krengel v. Midwest Automatic Photo, Inc., 295 Minn. 200, 209, 203 N.W.2d 841, 847 (1973) (concluding that the store where a photo booth was located, the manufacturer of the booth, and the distributor of the booth had a common or joint duty to protect the plaintiff injured by falling in a photo booth); Larsen v. Minneapolis Gas Co., 282 Minn. 135, 149-50, 163 N.W.2d 755, 764-65 (1968) (a gas explosion case in which the share of a vicariously liable general contractor was aggregated with the share of the subcontractor whose conduct gave rise to the vicarious liability); Schendel v. Hennepin County Medical Ctr., 484 N.W.2d 803, 808-09 (Minn. App. 1992) (upholding the aggregating of fault of all the physicians at a medical center who treated the plaintiff), review denied (Minn. July 16, 1992); Lim v. Interstate Sys. Steel Div., Inc., 435 N.W.2d 830, 833-34 (Minn. App. 1989) (upholding aggregation of fault of a defendant that owned the truck and employed the driver with the fault of the driver for an accident caused by the truck), review denied (Minn. Apr. 19, 1989).

Because any fault attributable to Remington or to Mettler/Forsman was aggregated erroneously, we remand for retrial on liability only. Upon retrial the court shall assure that the jury determines a percentage of fault for Remington, a percentage of fault for Mettler/Forsman, and a percentage of fault for Pajunen.

Reversed and remanded for a new trial.

[1] Monson also raised other arguments; in light of our decision to reverse and remand on the basis of the aggregated fault, the issues are moot and we do not address them. Nor do we address the argument of respondents David and Marian Pajunen that a new trial should be granted on damages as well as liability. Respondents did not file a notice of review with this court and did not object to damages before the trial court. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (this court may consider only issues presented to and considered by the trial court).

[2] Prejudice arises from application of Minn. Stat. § 604.01, subd. l, which reads in pertinent part: "Contributory fault does not bar recovery in an action * * * to recover damages * * * if the contributory fault was not greater than the fault of the person against whom recovery is sought." Aggregation of the fault of the Monson drivers resulted in 65% allocated to Monson and 35% allocated to Pajunen. If the fault of the two Monson drivers is attributed separately, that fault may still total 65%, but depending on how a jury allocates fault, one, or possibly even both, of the Monson drivers may be less at fault than Pajunen.

[3] Nor did respondents plead either of these theories.