A06-1840

Tamara Haeg, et al.,

Appellants,

vs.

George Geiger,

Respondent,

Steve Slater, et al.,

Defendants.

Filed September 4, 2007

Reversed and remanded

Hudson, Judge

Anoka County District Court

File No. C5-05-1387

Paula M. Jossart, Christopher J. Moreland, Don C. Aldrich (of counsel), Yaeger, Jungbauer & Barczak, PLC, 745 Kasota Avenue, Minneapolis, Minnesota 55414 (for appellants)

Louise A. Behrendt, Kenneth W. Dodge, Stich, Angell, Kreidler & Dodge, P.A., The Crossings, Suite 120, 250 Second Avenue South, Minneapolis, Minnesota 55401 (for respondent)

Considered and decided by Hudson, Presiding Judge; Lansing, Judge; and Halbrooks, Judge.

U N P U B L I S H E D O P I N I O N

HUDSON, Judge

This is an appeal from summary judgment in a negligence action, in which appellant, who was a passenger in a golf cart driven by respondent, sued respondent for negligently parking the golf cart. While appellant and respondent were seated in the parked golf cart, another golfer hit a golf ball that hit appellant in the left eye, ultimately causing her to lose the eye. The court entered summary judgment for respondent, ruling that no special relationship existed giving rise to a duty on respondent’s part to protect appellant. Appellant argues that (a) her claim is one of “direct negligence” and thus no special relationship is necessary to impose a duty of reasonable care; (b) respondent owed appellant a duty of reasonable care not to injure her though his negligence; and (c) respondent owed appellant a duty of reasonable care under Restatement (Second) of Torts ง 321 (1965). Because we conclude that the district court erred by granting summary judgment in favor of respondent, we reverse and remand for proceedings consistent with this opinion.

FACTS

On August 7, 2004, appellant Tamara Haeg went golfing with respondent George Geiger and several others at the Chomonix Golf Course in Lino Lakes. During the game, appellant rode in a golf cart driven by respondent Geiger. Defendant Steve Slater was in a foursome that played directly ahead of the appellant and respondent’s foursome.

At the third tee, Slater took his first shot, shanked it, and decided to take a second shot. Appellant and respondent were driving up to the third tee just as Slater was preparing to hit his second ball. Respondent apparently came to a stop in front of the tee box, at approximately a 45- to 50-degree angle from the tee, and parked the cart immediately behind the cart he was following. Respondent stated that he then noticed the cart in front of him pull up, and he had intended to move his cart to follow, but he did not have time to do so before Slater took his second shot. Appellant stated that she saw Slater preparing to take his second shot, but she did not have time to tell respondent to move his cart before Slater took his shot. Slater’s second shot angled sharply and hit the roof of his own golf cart that was parked nearby. The ball ricocheted off Slater’s golf cart, hitting appellant squarely in the left eye as she sat in the cart driven by respondent. Appellant believes that almost no time passed between when she noticed Slater at the tee and when she was hit by the golf ball, but she also stated that she thought respondent had enough time to move their cart forward before Slater’s second shot. Appellant lost her left eye as a result of the accident.

On January 17, 2005, appellant and her husband, individually and as husband and wife, filed suit in Anoka County District Court against respondent Geiger, Anoka County, and Slater, alleging negligence. On November 28, 2005, the district court granted Anoka County’s motion for summary judgment based on parks-and-recreational-use immunity under Minn. Stat. ง 466.03, subd. 6(e) (2004). Appellants resolved their negligence claim against Slater.

On March 23, 2006, respondent moved for summary judgment. On August 4, 2006, following a hearing, the district court granted respondent’s motion and dismissed appellant’s claims with prejudice. Relying heavily on Harper v. Herman, 499 N.W.2d 472 (Minn. 1993), the district court concluded that “[t]he evidence in this case does not demonstrate that a special relationship exists between Haeg and Geiger giving rise to a duty to protect Haeg as alleged, nor does such a relationship exist, as a matter of law. Therefore, Geiger owes no duty to Haeg or her husband.” This appeal follows.

D E C I S I O N

Appellants argue that the district court erred by granting summary judgment in favor of respondent because (1) the district court incorrectly analyzed their claim in the context of whether a “special relationship” created a duty of care, and (2) the district court erred by concluding that respondent did not owe appellant a duty under the Restatement (Second) of Torts ง 321 (1965).

On an appeal from summary judgment, this court must determine “(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).

A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law. On appeal, the reviewing court must 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) (citation omitted). No genuine issue for trial exists “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (alteration in original) (quotation omitted).

To defeat a summary-judgment motion, the nonmoving party must present evidence that does more than merely create a “metaphysical doubt as to a factual issue” and cannot rest on mere averments. Id. at71. But“[a] party need not show substantial evidence to withstand summary judgment. . . . [S]ummaryjudgment is inappropriate if the nonmoving party has the burden of proof on an issue and presents sufficient evidence to permit reasonable persons to draw different conclusions.” Schroeder v. St. Louis County, 708 N.W.2d 497, 507 (Minn. 2006) (emphasis in original). A defendant in a negligence action ordinarily is entitled to summary judgment when the record reflects a complete lack of proof on any essential element of the claim. Gradjelick v. Hance, 646 N.W.2d 225, 230 (Minn. 2002).

“A person generally has no duty to act for the protection of another person. The existence of a legal duty depends on two factors: (1) the relationship of the parties, and (2) the foreseeability of the risk involved.” Laska v. Anoka County, 696 N.W.2d 133, 138 (Minn. App. 2005), review denied (Minn. Aug. 16, 2005) (quotation omitted). To establish negligence, a plaintiff must demonstrate that a duty of care existed, that the defendant breached this duty, and that the breach was the proximate cause of an injury to the plaintiff. State Farm Fire & Cas. v. Aquila, Inc., 718 N.W.2d 879,887 (Minn. 2006).

Generally, an affirmative duty to act for the protection of another only arises when a special relationship exists between the parties. Harper v. Herman, 499 N.W.2d 472, 474 (Minn. 1993); Delgado v. Lohmar, 289 N.W.2d 479, 483 (Minn. 1979). Such special relationships exist between parents and children, masters and servants, common carriers and their customers, and persons who have custody of another person under circumstances in which that other person is deprived of normal opportunities for self-protection. Harper, 499 N.W.2d at 474–75; Delgado, 289 N.W.2d at 483; see, e.g., Restatement (Second) of Torts งง 314A, 315 (1965). In a negligence claim, the existence of a legal duty is a question of law, which this court reviews de novo. Laska, 696 N.W.2d at 138. Both parties agree that no special relationship existed that created a duty in respondent. While we agree that respondent did not owe appellants a duty based on a special relationship, we conclude that there are two other bases that did create a duty of reasonable care in respondent.

Duty of Reasonable Care

Minnesota caselaw provides that operators of motor vehicles have a general duty to exercise reasonable care. Rusciano v. State Farm Mut. Auto. Ins. Co., 445 N.W.2d 271, 273 (Minn. App. 1989). And a driver owes his passenger “the duty to operate the car with reasonable care so that the danger of riding in it is not increased or a new danger added to those assumed when the guest entered the car.” Thompson v. Hill, 366 N.W.2d 628, 631 (Minn. App. 1985) (quotation omitted). This principle applies with equal force to the operator of a golf cart:

The driver of a golf cart may be liable for injuries caused to either the passenger or some other patron on the golf course as a result of the driver’s negligent operation of the golf cart. This liability is similar to the liability imposed on a person who operates any other motor vehicle in a negligent manner and causes personal injuries to another.

66 A.L.R. 4th 622 ง 2[a]; see also Minn. Stat. ง 169A.03, subd. 15 (2006) (stating that for purposes of the statutes prohibiting driving while impaired, a “Motor Vehicle means every vehicle that is self-propelled . . . [including] motorboats in operation and . . . recreational vehicles”). By operating a golf cart in which appellant was a passenger, respondent had a duty to operate it with reasonable care.

During oral argument on the summary-judgment motion, respondent admitted that a “poorly driven golf cart gives rise to a cause of action in favor of the passenger.” But respondent argues that once the golf cart was stopped, any duty to operate the cart with reasonable care was extinguished. We find this argument unpersuasive and unsupported by legal authority. See Gresser v. Taylor, 276 Minn. 440, 448, 150 N.W.2d 869, 874 (1967) (holding that selection of a parking spot may give rise to liability in negligence). In our view, responsible operation of a motor vehicle includes taking care not to stop the vehicle in the middle of traffic or in any other situation that creates a risk of foreseeable harm.

In support of his position, respondent relies heavily on Harper, 499 N.W.2d 472, in which a 20-year-old man was severely injured after diving headfirst off a boat that was anchored by the boat owner in shallow water. The Harper court concluded that, in the absence of a special relationship, the boat operator did not owe the passenger any duty to warn him of the shallow water. Id. at 474–75. The court went on to state that “superior knowledge of a dangerous condition by itself, in the absence of a duty to provide protection, is insufficient to establish liability in negligence.” Noting that Harper was not deprived of opportunities to protect himself, the court concluded that “[the boat operator’s] knowledge that the water was ‘dangerously shallow’ without more does not create liability.” Id. at 475.

But Harper is distinguishable because the injured party in Harper acted independently when he dove off the boat. Id. In contrast, here, appellant was merely a passenger in the golf cart and did not take any independent action to place herself in the path of the golf ball. Moreover, the location of the boat in Harper was not in and of itself dangerous; the separate act of diving into the shallow water created the danger. Positioning the golf cart at a 45- to 50-degree angle in front of the tee box—especially given respondent’s knowledge that Slater was hitting a second shot from that tee—created the danger, not any additional act by appellant. We therefore conclude that respondent owed appellants a duty of reasonable care not to operate the golf cart in a negligent manner.

Restatement (Second) of Torts ง 321

The Restatement (Second) of Torts ง 321 states that

(1) If the actor does an act, and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another, he is under a duty to exercise reasonable care to prevent the risk from taking effect.

(2) The rule stated in Subsection (1) applies even though at the time of the act the actor has no reason to believe that it will involve such a risk.

Restatement (Second) of Torts ง 321. Appellants argue that section 321 is applicable in this case because respondent created an unreasonable risk of harm when he parked the golf cart in front of the tee box. We agree.

In analyzing a negligence claim, we have addressed the applicability of section 321 on one previous occasion. In Stepnes, a pedestrian was rendered a quadriplegic after being struck by a drunk driver. Stepnes v. Adams, 452 N.W.2d 256, 257 (Minn. App. 1990), review denied (Minn. May 7, 1990). The pedestrian sued the driver of the car that hit him, as well as a woman who was following the driver home from a bar in a different car. Id. Neither driver stopped to offer assistance after the pedestrian was injured. Id. The pedestrian argued that the woman following the drunk driver owed him a duty based on a special relationship and on common-law negligence. Id. at 257–58. The Stepnes court concluded that there was no liability under section 321 because of the pedestrian’s “failure to establish that [the driver of the second car] both created and failed to remedy the dangerous condition.” Id. at 259.

But here, unlike the driver in Stepnes, it is arguable that respondent both created and failed to remedy the dangerous condition. In fact, respondent admitted in his deposition that he was familiar with the rules of golf and knew that he should not have parked the cart in front of the tee box. Respondent counters that “the evidence in this case establishes that [respondent] Geiger’s stopping point resulted not from his own actions, but from the design of the course itself.” Indeed, Michael Kraker, a golf-course consultant, gave his opinion that “[d]efendant Anoka County created the dangerous situation leading to [appellant’s] injury by failing to prevent golf carts from driving right up to the front of the tee box” and that “[b]y failing to eliminate this route to the tee box, Defendant Anoka County exposed golfers to the danger of being struck by a golf ball that is shanked or toed off the club of a right-handed golfer.” This argument, however, goes to whether respondent breached his duty of care, not whether a duty actually existed.

Therefore, we conclude that respondent owed appellant a duty of reasonable care—both as a matter of common-law negligence and under the Restatement (Second) of Torts ง 321—not to place her in harm’s way by parking in front of the tee box. Accordingly, the district court erred in its application of the law by granting summary judgment to respondent. The separate question of whether respondent breached this duty is for a fact-finder to determine at trial.

Reversed and remanded.