This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




Helen Fraser,



Phillips Investment Company,

d/b/a Park Tavern Lounge & Lanes, et al.,


Filed March 9, 1999


Klaphake, Judge

Hennepin County District Court

File No. 96-17948

Richard S. Eskola, Moore, Halsey & Eskola, L.L.C., Ste. 160, PACO Office Center, 7260 University Ave. N.E., Fridley, MN 55432 (for appellant)

Linc S. Deter, Regina Jytyla, Brett W. Olander & Associates, 900 Norwest Tower, 55 E. 5th St., St. Paul, MN 55101 (for respondents)

Considered and decided by Kalitowski, Presiding Judge, Short, Judge, and Klaphake, Judge.



Helen Fraser appeals from a verdict directed in favor of Merle Corporation (Merle). Because Merle had no duty of care to Fraser and thus was not negligent, we affirm.


In late 1994, the owners of Park Tavern Lounge hired Merle to supervise the purchase and installation of new carpeting in their bowling alley. Merle, whose sole owner and shareholder is Merle Shapiro, hired J & J Installers to lay the carpeting. Within a short time, Park Tavern's co-owner, Diane Weber, called Shapiro and asked him to provide runners made from the same material to protect the new carpet from wear. Shapiro warned Weber three times that this would create a dangerous situation, but finally ordered the runners at Weber's insistence. Shortly after this, Weber again called Shapiro to request that the runners be nailed down because patrons were tripping on them. Shapiro again warned Weber three times that this would be dangerous and would actually make the situation worse. Weber insisted, so Shapiro contacted J & J, who nailed down the runners.

Within weeks, Fraser, who was attending a family party at Park Tavern, tripped on the edge of a runner and fell. Fraser sued Park Tavern and J & J, later adding Merle as a party. Fraser settled with Park Tavern and J & J and went to trial against Merle. After three witnesses testified and Fraser made an offer of proof, the district court directed a verdict against Fraser. Fraser's motion for a new trial was denied and this appeal followed.


A directed verdict is appropriate when, viewing the evidence in a light most favorable to the party against whom the verdict is directed, the trial court would be obliged to "set aside a contrary verdict as manifestly contrary to the evidence or to the law." Gustafson v. Chestnut, 515 N.W.2d 114, 116 (Minn. App. 1994). The reviewing court applies the same standard, making an independent assessment of the trial court's ruling. Id.

In order to maintain a cause of action for negligence, the injured party must show (1) the existence of a duty on the part of the alleged tortfeasor toward the injured party; (2) a breach of that duty; (3) that the breach of duty was the proximate cause of the injury; and (4) an injury. Danielson v. City of Brooklyn Park, 516 N.W.2d 203, 205 (Minn. App. 1994), review denied (Minn. July 27, 1994). The existence of a duty is a legal question to be reviewed de novo by this court. Larson v. Larson, 373 N.W.2d 287, 289 (Minn. 1985).

Fraser apparently alleges that Merle had a duty to refuse to sell the carpet runner to Park Tavern because of the potential for injury.[1] Generally, a person has no duty to control the actions of another to prevent that party from causing harm to a third person. Lundgren v. Fultz, 354 N.W.2d 25, 27 (Minn. 1984). A duty may arise, however, if a "special relationship" exists between the parties and the harm is foreseeable.

To reach the conclusion that a special relationship exists, it must be assumed that the harm to be prevented by the defendant is one that the defendant is in a position to protect against and should be expected to protect against.

Donaldson v. YWCA, 539 N.W.2d 789, 792 (Minn. 1995). A special relationship depends largely on the ability to protect and the foreseeability of harm. See Erickson v. Curtis Inv. Co., 447 N.W.2d 165, 169-70 (Minn. 1989) (duty to protect against criminal actions of third parties may exist between parking ramp owner and customer); Connolly v. Nicollet Hotel, 254 Minn. 373, 380, 95 N.W.2d 657, 663 (1959) (duty to protect against foreseeable actions of third parties exists between innkeeper and guest); Roettger v. United Hosps. of St. Paul, Inc., 380 N.W.2d 856, 859-60 (Minn. App. 1986) (duty to provide reasonable security procedures exists between hospital and patient). Other than refusing to enter into a commercial relationship, Merle had no ability to control the actions of Park Tavern and thus had no duty to Fraser.

Fraser argues that the source of Merle's liability is that Merle did not refuse to sell the carpet runner, but instead profited from a situation recognized to be potentially dangerous. However, a commercial seller does not have a duty to refuse to sell a product that can be used in a potentially dangerous manner; the duty is only to warn the purchaser of the dangers associated with such use, if the seller knows or can anticipate that the product will be used in a dangerous manner. See Frey v. Montgomery Ward & Co., 258 N.W.2d 782, 786 (Minn. 1977). There is no dispute that Merle not only anticipated the non-conforming use by Park Tavern, but also warned Park Tavern six times that the proposed use was dangerous. Merle thus satisfied the particular duty it owed.

Fraser's reliance on Murphy v. Barlow Realty Co., 206 Minn. 527, 289 N.W. 563 (1939) (dangerous repairs to building) and O'Brien v. American Bridge Co., 110 Minn. 364, 125 N.W. 1012 (1910) (defective construction of public bridge), is misplaced. In both instances, the product supplied was defective and dangerous for any use. The product supplied here, a strip of carpet, is neither defective nor inherently dangerous when properly used.

Our review of the record leads us to conclude that Merle had no duty to control Park Tavern's use of the carpet. While Merle had a duty to warn Park Tavern of the danger of its proposed use, that duty was more than satisfied by the six warnings Shapiro gave.


[1] Fraser's second amended complaint was not filed with the court and is not contained in the trial court file. From the parties' briefs, we assume that this case was pleaded and tried on a negligence theory, rather than a product liability or strict liability theory.