This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C5-98-1194
C4-98-1297

Richard D. McCarthy,
Appellant (C5-98-1194),

Witcher Construction,
Appellant (C4-98-1297),

vs.

Target Stores, a division of Dayton
Hudson Corporation,
Respondent,

Richard D. McCarthy,
Respondent (C4-98-1297),

Witcher Construction,
Defendant (C5-98-1194),

Ingersoll-Rand Company, et al.,
Defendants (C5-98-1194),
Respondents (C4-98-1297).

Filed February 3, 1999
Affirmed
Willis, Judge

Hennepin County District Court
File No. 9618965

Harry A. Sieben, Jr., Sieben, Grose, Von Holtum, McCoy & Carey, Ltd., 900 Midwest Plaza East, 800 Marquette Avenue, Minneapolis, MN 55402; and Thomas M. Countryman, 755 Curfew St., St. Paul, MN 55114 (for appellant/respondent McCarthy)

Lauris A. Heyerdahl, Abrams & Smith, P.A., 700 Northstar West, 625 Marquette Avenue, Minneapolis, MN 55402 (for appellant/defendant Witcher Construction)

Eric J. Magnuson, Joseph S. Lawder, Brian A. Wood, Rider, Bennett, Egan & Arundel, LLP, 2000 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for respondent Target Stores)

Erik T. Salveson, Gray, Plant, Mooty, Mooty & Bennett, P.A., 3400 City Center, 33 South Sixth Street, Minneapolis, MN 55402 (for defendants/respondents Ingersoll-Rand Company, et al.)

Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Holtan, Judge.*

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant Richard D. McCarthy challenges adverse summary judgment, claiming the district court erred in dismissing his personal injury claims against respondents Target Stores ("Target") and Ingersoll-Rand Company and LCN ("Ingersoll-Rand"). We affirm.

Appellant Witcher Construction ("Witcher") claims the district court erred in granting summary judgment to Target on its claim against Witcher for indemnification of Target's costs and expenses of defending against McCarthy's claims. We affirm.

FACTS

In the summer of 1992, Witcher began a remodeling project at a Target store in Bloomington, which included the installation of a door closer on the door to the men's restroom. The door closer was manufactured by respondent Ingersoll-Rand.

A written agreement between Target and Witcher relating to the remodeling project provided that Witcher would indemnify Target from all claims arising out of the project and would obtain insurance protecting both Target and itself from such claims.

On February 12, 1993, McCarthy, who has cerebral palsy and is confined to a wheelchair, allegedly was injured using the door to the men's restroom at the Target store. According to McCarthy, the door struck and caught his right foot as he attempted to enter the restroom. McCarthy alleges that Target was negligent in failing to maintain a safe environment for its patrons and in failing to assist him and that Ingersoll-Rand was negligent in failing to provide adequate instructions for the door closer.

The district court granted the motions for summary judgment of Target, Witcher, and Ingersoll-Rand and dismissed McCarthy's personal injury claims with prejudice. The court also granted Target's motion for summary judgment on its claim against Witcher for indemnification and awarded $51,711.02 to Target. McCarthy and Witcher both appeal.

D E C I S I O N

On appeal from summary judgment, this court asks two questions: (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). In addition, we "view the evidence in the light most favorable to the party against whom judgment was granted." Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). In a negligence claim, the existence of a duty is a question of law, subject to de novo review. Johnson v. State, 553 N.W.2d 40, 49 (Minn. 1996).

I. McCarthys Negligence Claims Against Target

On appeal, McCarthy asserts three theories of Target's negligence: negligence per se; breach of a duty of reasonable care; and breach of a duty to render assistance.

A. Negligence Per Se

McCarthy claims that Target was negligent per se because it violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12,101-213 (Supp. 1993). At the time of the incident, the maximum allowable opening force for an interior door in a place of public accommodation or in a commercial facility was five pounds. 28 C.F.R. § 36, app. A at 4.13.11(2)(b) (1993) ("ADA Accessibility Guidelines for Buildings and Facilities"). Approximately two and a half years after the incident, an engineer hired by McCarthy conducted a test on the door closer that showed that a "pull/push pressure of 9.25 pounds was required to initiate the opening of the door" to the men's restroom at the Target store.

Target argues that McCarthy did not raise the issue of negligence per se in the district court and, therefore, may not argue it on appeal. The supreme court has stated that a party may not "obtain review by raising the same general issue litigated below but under a different theory." Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (citing Pomush v. McGroarty, 285 N.W.2d 91, 93 (Minn. 1979) (stating that appellant cannot raise new negligence theory on appeal)); see also Komatz Constr., Inc. v. Western Union Tel. Co., 290 Minn. 129, 142, 186 N.W.2d 691, 699 (1971) (stating that issue not raised by pleadings or litigated below is not subject to review).

McCarthy did not allege negligence per se in his complaint, and the district court did not address the issue. McCarthy argued negligence per se in his memorandum in opposition to Witcher's motion for summary judgment, but he made no such argument in the district court with respect to his claim against Target. Thus, the issue is not properly before this court. See Thiele, 425 N.W.2d at 582 (stating that reviewing court generally considers only those issues presented to and considered by district court in deciding matter).

But we nevertheless note that the Minnesota Supreme Court has stated that a violation of a legislative enactment is evidence of negligence only if the plaintiff's injury "was caused by the particular hazard or form of harm against which the enactment was designed to give protection." Johnson v. Farmers & Merchants State Bank, 320 N.W.2d 892, 897 (Minn. 1982) (citations omitted); see also Bills v. Willow Run I Apartments, 547 N.W.2d 693, 695 (Minn. 1996) (analyzing violation of building code); Restatement (Second) of Torts § 286 (1965) (concerning negligence per se).

McCarthy would therefore have to establish that the ADA was intended to prevent the harm he suffered. The stated purpose of the ADA is to eliminate "discrimination against individuals with disabilities" by establishing uniform standards throughout the country. 42 U.S.C. § 12,101(b) (stating purpose of act). McCarthy has not shown that the ADA was intended to prevent injuries.

McCarthy merely asserts that because it is foreseeable that failure to adhere to ADA door-force requirements could lead to the injury of a disabled person, the ADA is intended to protect against the harm he suffered. But he cites no authority for that assertion. We conclude that McCarthy's claim of negligence per se would in any event fail. See State by Humphrey v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (stating that mere assertion unsupported by authority is waived); see also Independent Sch. Dist. No. 283 v. S.D. by J.D., 948 F. Supp. 860, 888-89 n.39 (D. Minn. 1995) (dismissing assertion that purported violation of Minnesota statute dealing with special educational instruction of children with disabilities is negligence per se).

B. Duty to Exercise Reasonable Care

McCarthy also claims that Target breached a duty to exercise reasonable care by failing to discover that the door closer was not in compliance with ADA door-force requirements.

Target acknowledges that "[t]he law imposes a duty on a storeowner to exercise reasonable care for the safety of customers." Block v. Target Stores, Inc., 458 N.W.2d 705, 711 (Minn. App. 1990) (citation omitted), review denied (Minn. Sept. 28, 1990). But a storeowner's duty to its customers extends only to known and reasonably knowable dangers. Smith v. Kahler Corp., 297 Minn. 272, 278, 211 N.W.2d 146, 151 (1973) (affirming jury's finding of negligence on this basis); see also Otto v. City of St. Paul, 460 N.W.2d 359, 362 (Minn. App. 1990) (stating that liability will be imposed only if owner has "either actual or constructive knowledge of the dangerous condition") (citing Restatement (Second) of Torts §§ 342-343 (1965)).

1. Existence of a Dangerous Condition

McCarthy must first show the existence of a dangerous condition. He claims that because the force required to open the door to the men's restroom at the Target store exceeded ADA standards, a dangerous condition existed.

McCarthy bases this claim on his expert's opinion that the excessive force needed to open the door to the Target men's restroom "probably contributed to both the likelihood and the severity of the injuries." But McCarthy's expert relies on, in part, tests conducted by another person approximately two and a half years after the incident. Further, Target argues that the expert's opinion is mere speculation.

"The function of the expert is `to assist the jury in reaching a correct conclusion from the facts in evidence.'" Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 154 (Minn. 1982) (quoting Albert Lea Ice & Fuel Co. v. United States Fire Ins. Co., 239 Minn. 198, 202, 58 N.W.2d 614, 617 (1953)). An expert need not testify with absolute certainty to his or her opinion; rather, the opinion is subject to a reasonable- probability standard. Block, 458 N.W.2d at 710-11. But an expert should not be allowed to testify if the opinion is based on speculation. Hudson, 326 N.W.2d at 155 (stating that expert must base opinion on facts sufficient to form adequate foundation).

McCarthy asserts that Minnesota courts have approved the admission of expert testimony where substantial time has passed between the date of an accident and the date of the expert's test, citing Bohach v. Thompson, 307 Minn. 332, 338, 239 N.W.2d 764, 767 (1976) (upholding admission of expert testimony even though expert's investigation did not begin until three years after accident). Because the expert in Bohach personally conducted the test and because there was no evidence of a significant change in the condition of the road, the supreme court concluded that the district court properly admitted the expert testimony. Id. at 337-38, 239 N.W.2d at 767 (adding that this opinion "approaches the outer limits" of admissibility).

In September 1995, Target replaced and discarded the door closer in question after it was vandalized. McCarthy's expert did not examine the door until June 11, 1996. So unlike the expert in Bohach, McCarthy's expert did not personally conduct the test on the door closer that allegedly caused McCarthy's injuries. Instead, he relies on the results of a test conducted by another person and on his own test of a replacement door closer. The district court concluded that McCarthy's evidence that a dangerous condition existed amounted to "surmise and speculation." We agree.

2. Actual or Constructive Knowledge

Even if we were to assume that the opinion of McCarthy's expert showed the existence of a dangerous condition, to impose liability on Target, McCarthy must show that Target had actual or constructive knowledge of the dangerous condition. McCarthy admits that he has no evidence of Target's actual knowledge of noncompliance with ADA door-force requirements, and he assumes that Target did not have such knowledge. McCarthy must therefore show that Target had constructive knowledge. See Wolvert v. Gustafson, 275 Minn. 239, 241, 146 N.W.2d 172, 173 (1966) (placing burden of proving constructive knowledge on plaintiff).

But there is no evidence that Target received any complaints during the eight months between the time of the remodeling project and the date of the incident involving McCarthy. In addition, cleaning and maintenance personnel routinely entered and exited the men's restroom door without noting a problem. A Bloomington building inspector inspected and approved the door to the men's restroom shortly after it was installed. See Bills, 547 N.W.2d at 694-95 (rejecting argument that owner must re-inspect building for violations following building inspector's certification).

McCarthy simply asserts that Target should have known of the dangerous condition; he has not produced any evidence of constructive knowledge.

C. Duty to Assist

McCarthy also argues that Target breached a duty to him because its employees failed to render assistance when they saw him in distress.

As a general rule, "an affirmative duty to act only arises when a special relationship exists between the parties." Harper v. Herman, 499 N.W.2d 472, 474 (Minn. 1993). McCarthy asserts that such a relationship exists here because Target is "[a] possessor of land who holds it open to * * * members of the public who enter in response to [its] invitation." Restatement (Second) of Torts § 314A. But "the law has been `cautious and reluctant'" to impose an affirmative duty to act based merely on a merchant-customer relationship. Errico v. Southland Corp., 509 N.W.2d 585, 587 (Minn. App. 1993) (quoting Erickson v. Curtis Inv. Co., 447 N.W.2d 165, 168 (Minn. 1989)), review denied (Minn. Jan. 27, 1994).

McCarthy makes no showing of a special relationship here. He argues that Target owed him a duty to exercise reasonable care, but the separate affirmative duty to act arises only where there is a special relationship. Because McCarthy has not shown a special relationship between the parties, Target had no affirmative duty to act here.

Because there are no genuine issues of material fact with regard to McCarthy's negligence claims against Target, the district court did not err in granting Target's motion for summary judgment.

II. McCarthy's Negligence Claim Against Ingersoll-Rand

McCarthy argues that the district court erred in granting summary judgment on his negligence claim against Ingersoll-Rand for failure to warn, which McCarthy bases on the alleged inadequacy of Ingersoll-Rand's installation instructions for the door closer.

McCarthy argues that Ingersoll-Rand breached the duty to provide instructions for the safe use of its product, citing Hartmon v. National Heater Co., 240 Minn. 264, 271-72, 60 N.W.2d 804, 810 (1953) (stating that, by providing printed instructions, manufacturer assumes duty to provide accurate and adequate instructions). But a manufacturer has "no duty to warn of dangers if the user knows or should know of the potential danger presented." Harmon Contract Glazing, Inc. v. Libby-Owens-Ford Co., 493 N.W.2d 146, 151 (Minn. App. 1992) (stating that rule obviating duty is most appropriate "when the user is a professional who should be aware of the characteristics of the product") (citations omitted), review denied (Minn. Feb. 12, 1993).

McCarthy claims, through his expert's opinion, that Ingersoll-Rand's installation instructions do not make clear to the average installer or maintenance employee that the door closer is subject to ADA door-force requirements. He also claims that the inadequacy of the installation instructions was "most likely the direct cause of the unacceptably high pressure required to open" the men's restroom door and, thereby, of McCarthy's injury.

But the record shows that Witcher's and Target's installation and maintenance personnel had experience with the installation, maintenance, and adjustment of door closers. Because professionals to whom the instructions were directed were aware of the door closer's characteristics, Ingersoll-Rand owed no duty here to provide instructions for the safe use of its product. See Peppin v. W.H. Brady Co., 372 N.W.2d 369, 375 (Minn. App. 1985) (concluding that manufacturer owed no duty where professional users knew of product's characteristics).

Because there are no genuine issues of material fact and because Ingersoll-Rand owed no duty here to provide instructions for the safe use of its door closer, the district court did not err in granting Ingersoll-Rands motion for summary judgment.

III. Target's Indemnification Claim Against Witcher

Witcher argues that the district court erred in granting summary judgment to Target on its claim that Witcher is obligated to indemnify Target for costs and expenses of defending against McCarthy's claims.

A. General Prohibition Against Enforcement

The agreement between Target and Witcher contains an indemnification provision, which Witcher argues is unenforceable because it purports to indemnify Target for its own negligence. The legislature has provided:

An indemnification agreement contained in, or executed in connection with, a building and construction contract is unenforceable except to the extent that the underlying injury or damage is attributable to the negligent or otherwise wrongful act or omission, including breach of a specific contractual duty, of the promisor or the promisor's independent contractors, agents, employees, or delegatees.

Minn. Stat. § 337.02 (1998). Indemnification agreements, therefore, are unenforceable "`except to the extent' they provide indemnification for the promisor's own negligence." Seifert v. Regents of Univ. of Minn., 505 N.W.2d 83, 85 (Minn. App. 1993) (quoting Minn. Stat. § 645.16 (1992)), review denied (Minn. Oct. 28, 1993).

The indemnification provision at issue states:

To the fullest extent permitted by law, the Contractor shall defend, indemnify and hold harmless the [Indemnified Parties] from and against all claims, losses, damages and expenses (including court costs, attorneys' fees and investigative and discovery costs) * * * . To the fullest extent permitted by law, the foregoing indemnity shall apply regardless of whether or not such claims, losses, damages and expenses are caused in whole or in part by any of the Indemnified Parties.

Target claims a right to indemnification because McCarthy's claims arise out of the alleged negligent installation of the door closer by Witcher and asserts that McCarthy's mere allegations of Target's negligence do not prohibit indemnification.

In Seifert, this court concluded that mere allegations of the indemnitee's negligence, "without providing evidence creating a material fact issue," were insufficient to "invalidate the parties' indemnity agreement." Id. at 86. Target argues that because there is no evidence it was negligent, the agreement is enforceable under Seifert and, therefore, Witcher is obligated to indemnify Target for the costs and expenses of defending against McCarthy's claims. But in Seifert, there was evidence that the plaintiff's damages were caused by the indemnitor's negligence. Id. Here, there is no evidence that either Target or Witcher was negligent.

The district court concluded that McCarthy's claims arose out of Witcher's installation of the door closer, triggering Witcher's obligation to indemnify Target. But the exception to the prohibition in section 337.02 does not apply without evidence that Witcher was negligent. See Minn. Stat. § 337.02 (stating general prohibition against enforcement of indemnification agreements).

B. Enforcement Based on Promise to Provide Insurance

Agreements to indemnify are enforceable where they involve a promisor who "agrees to provide specific insurance coverage for the benefit of others." Minn. Stat. § 337.05, subd. 1 (1998); see also Katzner v. Kelleher Constr., 545 N.W.2d 378, 381 (Minn. 1996) (citing Minn. Stat. § 337.05, subd. 1). Witcher promised to provide insurance "sufficient to protect [Witcher] and [Target] from claims which may arise out of or result from the operations under the Contract," including required insurance covering Witcher's indemnity obligations.

In Katzner, the supreme court concluded that, because the contractual language relied on by the indemnitee as evidence of the parties' intent to shift liability for all claims to the indemnitor was not clear and unambiguous, the indemnification agreement was unenforceable. Katzner, 545 N.W.2d at 382. But here, the agreement provides for indemnification "regardless of whether or not such claims, losses, damages and expenses are caused in whole or in part by [Target]." Coupled with Witcher's promise to provide insurance, this clear and unambiguous language obligates Witcher to indemnify Target against all claims arising out of the project, regardless of fault. See Holmes v. Watson-Forsberg Co., 488 N.W.2d 473, 475 (Minn. 1992) (allowing enforcement of indemnification agreement pursuant to agreement to provide insurance) (relying on Minn. Stat. § 337.05, subd. 1).

Witcher failed to obtain insurance that would have provided coverage against McCarthy's claims, and indemnification is available to Target "to the same extent as the specified insurance." Minn. Stat. § 337.05, subd. 2 (1998).

C. Destruction of Evidence

Witcher claims that the destruction of the door closer prejudices its "ability to defend itself," assuming McCarthy's claims survive. Witcher argues that this prejudice defeats any obligation it has to indemnify Target, citing New Amsterdam Cas. Co. v. Lundquist, 293 Minn. 274, 284, 198 N.W.2d 543, 549 (1972) (stating that obligation to indemnify is released "to the extent of the prejudice") (footnote omitted).

But the district court found no evidence of negligence and dismissed McCarthy's claims. Because Witcher's obligation to indemnify Target for the costs and expenses of defending against McCarthy's claims exists regardless of fault, access to the door closer involved in the incident is immaterial. Thus, Witcher has not been prejudiced.

Because there are no genuine issues of material fact and because Target is entitled to indemnification from Witcher based on Witcher's promise to provide insurance, the district court did not err in granting Target's motion for summary judgment on Target's indemnification claim.

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.