may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Terry R. Pool, et al.,
Filed January 12, 1999
Reversed and remanded
Hennepin County District Court
File No. 973501
Patrick J. Neaton, Chamberlain & Neaton, PLLP, 445 Lake, Suite 333, Wayzata, MN 55391 (for appellants)
Louis J. Speltz, Christopher Morris, Bassford, Lockhart, Truesdell & Briggs, P.A., 3550 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for respondent)
Considered and decided by Crippen, Presiding Judge, Willis, Judge, and Mulally, Judge.[*]
Appellants Terry R. Pool ("Pool") and Jennifer S. Pool challenge adverse summary judgment, claiming that the district court erred in concluding that, because a risk was open and obvious, respondent Ron Stotko had no duty to warn Pool. We reverse and remand.
Pool and Stotko worked together as independent contractors on a residential construction project for Mavco, Inc. On February 28, 1995, Pool was working from a scaffold when he backed onto a two-by-ten fir plank that bridged an eight-foot span. The plank broke, and Pool fell approximately eight feet, fracturing his left heel.
Stotko had placed the fir plank on the scaffold. After doing so, he saw a clearly visible, softball-sized knot near the center of the plank, but rather than warning Pool about the knot, Stotko left to get a second plank to double the thickness of the platform. Pool fell before Stotko returned. Appellants claim Stotko was negligent in selecting and placing the plank on the scaffold and in failing to warn Pool about the knot.
The district court granted Stotko's motion for summary judgment, concluding that Stotko had no duty to warn Pool because the dangerous condition was open and obvious and because "Pool was an experienced carpenter and knew fir boards contained knots." This appeal followed.
In an appeal from summary judgment, this court asks "(1) whether there are any genuine issues of material fact and (2) whether the [district court] erred in [its] application of the law." State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990) (citation omitted). In addition, we must view the evidence in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).
One element of a negligence claim is the existence of a duty. Johnson v. State, 553 N.W.2d 40, 49 (Minn. 1996). Whether a duty exists is generally a question of law and subject to de novo review. Id.
The Minnesota Supreme Court has stated that an affirmative duty to act arises only when there is a special relationship between the parties. Harper v. Herman, 499 N.W.2d 472, 474-75 (Minn. 1993) (holding defendant had no duty to warn of risk absent special relationship with plaintiff). The supreme court has noted that generally a special relationship creating a duty to warn of a risk is found only on the part of common carriers, innkeepers, possessors of land who hold it open to the public, and persons having custody of another person under circumstances in which that other person is deprived of normal opportunities to protect himself. Id. at 474 (citing Restatement (Second) of Torts § 314A (1965)).
But neither in the district court nor on appeal have the parties addressed the threshold issue of whether there was a special relationship here that gave rise to a duty on Stotko's part to warn Pool about the knot in the plank. Based on the record before us, we decline to make that determination. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that reviewing court must generally consider only issues that record shows were presented to and considered by district court). The parties, both in the district court and here, have presented the issue as whether the risk created by the knot in the plank was an open-and-obvious condition so that Stotko had no duty to warn Pool. See Lawrence v. Hollerich, 394 N.W.2d 853, 856 (Minn. App. 1986) ("`[N]o one needs notice of what he knows or reasonably may be expected to know.'") (citation omitted), review denied (Minn. Dec. 17, 1986). The district court agreed with Stotko that the risk was open and obvious.
Appellants contend that the open-and-obvious rule applies only to the liability of possessors of land. See id. at 855 (applying Restatement (Second) of Torts § 343A (1965)). But the rule has not been so limited in Minnesota. See, e.g., Wiseman v. Northern Pac. Ry., 214 Minn. 101, 107, 7 N.W.2d 672, 675 (1943) (finding no duty to warn against open-and-obvious risks in case involving spectator injured by exploding gasoline tanks while watching wrecked train and fire from public highway).
Appellants alternatively argue that even if the open-and-obvious rule applies, the district court erred in not recognizing the application here of an exception to the rule for circumstances where harm nevertheless can and should be anticipated by the defendant. See Peterson v. W. T. Rawleigh Co., 274 Minn. 495, 496-97, 144 N.W.2d 555, 557-58 (1966) (citing Restatement (Second) of Torts § 343A cmt. f (noting exception to general rule)).
In any event, the supreme court has noted that the open-and-obvious rule should be applied cautiously and has stated:
Where the allegations permit the construction, or the evidence permits the inference, that the party lacked knowledge or was not aware of the danger, a fact issue is raised for the jury.
Wiseman, 214 Minn. at 107, 7 N.W.2d at 675 (analyzing applicability of open-and-obvious rule) (citation omitted). In considering a motion for summary judgment, "[t]he trial court may not decide factual issues; its sole function is to determine whether fact issues exist." Moe v. Kilde, 419 N.W.2d 820, 821 (Minn. App. 1988) (citation omitted). But here, in concluding that the existence of the knot was an open-and-obvious condition, the district court made extensive findings on disputed facts.
Viewing the evidence in the light most favorable to appellants, this court must accept the following as true: (1) Pool was unaware of the knot; (2) two planks are not always required for a scaffold platform; (3) Pool trusted Stotko and assumed he would select a good plank; (4) Stotko knew the knot weakened the plank, making the platform unsafe; (5) Stotko knew Pool relied on him in selecting and placing planks on the scaffold; (6) Stotko had no reason to believe Pool saw the knot; and (7) Stotko made no attempt to warn Pool.
Thus, if the district court determines on remand that there was a special relationship giving rise to a duty on Stotko's part to warn Pool, there are genuine issues of material fact precluding summary judgment regarding whether the risk created by the plank with the knot was open and obvious and, if so, whether harm nevertheless could have and should have been anticipated.
Appellants also assert that Stotko owed Pool a duty to exercise "reasonable care" in selecting and placing the plank on the scaffold, citing Schmidt v. Beninga, which states:
"Where several persons are engaged in the same work, in which the negligent or unskillful performance of his part by one may cause danger to the others, and in which each must necessarily depend for his safety upon the good faith, skill, and prudence of each of the others in doing his part of the work, it is the duty of each to the others engaged on the work to exercise the care and skill ordinarily employed by prudent men in similar circumstances, and he is liable for any injury occurring to any one of the others by reason of a neglect to use such care and skill."
Schmidt v. Beninga, 285 Minn. 477, 487, 173 N.W.2d 401, 407 (1970) (citation omitted); accord Gilbert v. Megears, 192 Minn. 495, 500, 257 N.W. 73, 75 (1934) (stating that district court did not err in submitting question of negligence to jury with regard to this duty). While the district court recognized that, under Schmidt, "an individual can be liable for his own actions," it did not determine whether the duty described in Schmidt applies to the facts here. Appellants claim that this failure was error.
Stotko attempts to distinguish Schmidt by noting that the defendant there deviated from customary trade practices. 285 Minn. at 489, 173 N.W.2d at 408. Stotko claims that he followed customary practices, while Pool did not. But it is disputed whether Stotko left to get a second plank because that was a customary trade practice to double-plank scaffold platforms or whether he left to get a second plank because of the knot in the first.
Stotko further claims that, because he did not control the work site, he owed no duty to Pool to maintain safe premises, citing Sutherland v. Barton, 570 N.W.2d 1, 5-6 (Minn. 1997) (concluding that hiring company was not liable for injuries sustained by independent contractor's employee because company did not maintain control of work site). Stotko contends that either Mavco or Pool, as the foreman designated by Mavco, had the duty to ensure that the work site was safe. But whether Mavco or Pool had such a duty is irrelevant to the issue of whether Stotko had a duty of care in performing his work with Pool.
Because there is legal support for appellants' claim that one person engaged in work with another owes a duty to exercise ordinary care and skill, the district court erred in failing to determine whether the duty described in Schmidt applies to the facts here.
On remand, the district court must first determine whether there was a special relationship creating a duty on Stotko's part to warn Pool about the risk created by the knot in the plank. If such a relationship existed, there are genuine issues of material fact that preclude summary judgment regarding (1) whether the risk was open and obvious and (2) if so, whether harm nevertheless could have and should have been anticipated. In addition, the district court should determine whether the duty described in Schmidt applies to the facts here.
Reversed and remanded.
[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals pursuant to Minn. Const. art. VI, § 10.