This opinion will be unpublished and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


Pamela Blakely,
as parent and natural guardian for
Richard Person, a minor,


David Hacker,

George Peterson,

Filed October 5, 1999
Affirmed in part, reversed in part,
and remanded; motion granted
Klaphake, Judge

Becker County District Court
File No. C0-98-474

Anita Flatt, Randall Knutson, Baer, Knutson and Associates, P.O. Box 249, Hawley, MN 56549 (for appellant)

Paul Aamodt, Aamodt & Lamb, P.O. Box 966, Fargo, ND 58107 (for respondent Hacker)

John M. Colosimo, Carla J. Lindell, Colosimo, Patchin, Aronson & Kearney, Ltd., 301 Chestnut St., Virginia, MN 55792 (for respondent Peterson)

Considered and decided by Toussaint, Chief Judge, Lansing, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant Pamela Blakely, as parent and natural guardian of Richard Person, a minor, brought this negligence action against respondents David Hacker and George Peterson after her son's hand was caught in a conveyor belt owned and operated by Peterson and located on Hacker's property. The district court granted summary judgment to both respondents, concluding that neither owed a duty to Person because no special relationship existed.

Because Hacker owed no duty as a landowner to Person, we affirm the grant of summary judgment to him. Because appellant presented sufficient facts to show that Peterson owed Person a duty to operate the conveyor belt with reasonable care and that Peterson impliedly assumed responsibility for the safety of Person while they were at Hacker's farm, we reverse the grant of summary judgment to Peterson and remand for trial.



On appeal, respondent Peterson moves to strike photographs of the conveyor belt contained in appellant's appendix and all references to those photographs in appellant's brief. These photographs were not filed with the district court and are not properly part of the record on appeal. Minn. R. Civ. App. P. 110.01 (record on appeal consists of "papers filed in trial court, the exhibits, and the transcript of proceedings, if any"). We therefore grant Peterson's motion to strike. See, e.g., Kise v. Product Design & Eng'g, Inc., 453 N.W.2d 561, 566 (Minn. App. 1990) (matters not part of record must be stricken); Mitterhauser v. Mitterhauser, 399 N.W.2d 664, 667 (Minn. App. 1987) (same).


Summary judgment may be granted when there are no genuine issues as to any material facts and either party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. The existence of a legal duty is an issue of law for the court to decide. Larson v. Larson, 373 N.W.2d 287, 289 (Minn. 1985); Lundgren v. Fultz, 354 N.W.2d 25, 27 (Minn. 1984). On appeal, we need not defer to the district court's conclusion or reasoning on legal issues. See Frost-Benco Elec. Ass'n v. Minnesota Pub. Utilities Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).


Appellant claims that Peterson failed to use reasonable care while operating the conveyor belt. A person using or operating equipment or machinery owes a duty to exercise reasonable care to avoid risk to others. See Roadman v. C.E. Johnson Motor Sales, 210 Minn. 59, 65, 297 N.W. 166, 170 (1941) (defendants failed to exercise reasonable care when they knew plaintiff was in close proximity to truck and when they started motor without first ascertaining whether it was in neutral position).

Appellant claims that Peterson activated the conveyor belt, and he has identified evidence to support this claim. That evidence includes deposition testimony by Person and his brother that Peterson turned on the conveyor belt. In his deposition, Peterson did not deny turning on the conveyor belt and merely testified that he could not remember whether he had turned it on. Peterson owed Person a duty to operate the conveyor belt in a reasonable manner. Although Person's brother testified that Peterson warned them before activating it, whether that warning was adequate or whether Peterson acted with reasonable care is an issue for the jury to consider. See Zobel v. Dahl Constr. v. Crotty, 356 N.W.2d 42, 45 (Minn. 1984) (jury issue exists if evidence reasonably tends to prove existence of fact issue).

Appellant also claims that Peterson failed to protect her son or properly supervise him, which would require the existence of a special relationship. Contrary to the district court's conclusion, appellant has identified facts to support the existence of a special relationship. Before Peterson took Person to Hacker's farm, he instructed 10-year-old Person to obtain permission from his grandmother, with whom Person was spending the summer; Person went into his grandmother's house, obtained her permission, and told Peterson his grandmother had given her approval. Peterson further acknowledged in a statement that he had Person obtain his grandmother's permission because he knew that he could not take a 10-year-old from "the house without asking the parents." Although Peterson did not speak directly with the grandmother, a jury could conclude that the grandmother relinquished responsibility to Peterson and that Peterson accepted that responsibility. See Sunnarborg v. Howard, 581 N.W.2d 397, 399 (Minn. App. 1998) (special relationship may arise when parent expressly or impliedly relinquishes responsibility to protect child to another, and that other person accepts or consents to that relinquishment), review denied (Minn. Sept. 22, 1998).

Appellant therefore has presented sufficient facts to support her claim that Peterson owed her son a duty to use reasonable care and protect her son while Peterson was operating the conveyor belt.


Appellant claims that Hacker, as a landowner in possession of a dangerous machine, failed to properly warn and safeguard Person from the dangers of that machine. Hacker was not present when the accident occurred, and he did not personally invite the two boys or know that Peterson had invited them to his farm.

As a landowner, Hacker owes no duty to provide a safe environment or warn invitees[1] of an artificial danger so obvious that no warning is necessary. See Baber v. Dill, 531 N.W.2d 493, 495-96 (Minn. 1995) (landowner owes no duty of care to warn or guard against open and obvious danger, unless landowner should anticipate harm despite obviousness). Person admitted that he knew the conveyor belt was dangerous, that it could harm him if activated, and that at the time of the accident he was checking out the "metal things" on it.

Although appellant claims that Hacker was negligent because he left the conveyor belt outside and plugged in, without any warnings, cover, or other safeguards, she has failed to submit any evidence that the conveyor belt had been modified or that guards were available or generally included on this type of a conveyor belt. Nor was any evidence submitted to suggest that Hacker knew or had reason to know that anyone, including a child, might meddle with the conveyor belt or otherwise be injured while the conveyor belt was being operated. A landowner has no duty to protect an entrant where the harm is unanticipated and is so obvious that no warning is necessary. See id. at 496. Under these circumstances, appellant has failed to offer sufficient facts to support the existence of a duty on Hacker's part.

Appellant also suggests that Hacker should be held vicariously liable for Peterson's negligence under a joint enterprise theory. Under this theory, Hacker must have had some right to control Peterson's actions. See, e.g., Delgado v. Lohmar, 289 N.W.2d 479, 482-84 (Minn. 1979) (no joint venture on hunting trip, where there was no sharing of equipment or expenses); Molden v. Minneapolis, St. Paul & Sault St. Marie Ry. Co., 167 Minn. 132, 134-35, 208 N.W. 541, 542 (1926) (no vicarious liability where no legal right existed to control defendant who was merely assisting another).

The evidence shows that Hacker accepted Peterson's offer to assist him, without pay, in moving hay into Hacker's barn. Although Peterson owned the conveyor belt, he had lent the machine, without charge, to Hacker. Because the facts fail to show that Hacker had the right to control Peterson's actions, Hacker cannot be held vicariously liable for any negligence on Peterson's part.

Affirmed in part, reversed in part and remanded; motion granted.

[1] Respondents have argued that Person was a trespasser. Because Peterson invited Person to Hacker's farm, he had implied consent to enter and cannot be considered a trespasser. See 4 Minnesota Practice, CIVJIG 325 (1986) (defining trespasser as person who enters another's premises without "the directly stated or implied consent of the possessor [or without a privilege to do so]").