Michael S. Polk, Michael R. Strom, Sieben, Polk, LaVerdiere, Jones & Hawn, P.A., 999 Westview Drive, Hastings, MN 55033 (for Respondent Jonathan Swanson)

Kay Nord Hunt, John R. McBride, Lommen, Nelson, Cole & Stageberg, P.A., 1800 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for Appellant Timesavers, Inc.)

Kevin F. Mark, 425 West Third Street, Red Wing, MN 55066 (for Appellant Michael Chorney)

Bruce D. Elliott, Cousineau, McGuire & Anderson, Chartered, 1560 Utica Avenue South, Suite 600, Minneapolis, MN 55416-5318 (for Respondent Industrial Hardwood Products, Inc.)

Considered and decided by Norton, Presiding Judge, Lansing, Judge, and Randall, Judge.

Appellants claim they were entitled to judgment notwithstanding the verdict (JNOV) or a new trial after the jury found appellants' negligence was the direct cause of respondent Swanson's injury. We affirm.

Swanson sued Chorney for gross negligence. He sued appellant Timesavers, Inc., the manufacturer of the sanding machine, for negligence, strict liability in tort, and breach of express and implied warranties. Chorney and Timesavers filed cross-claims against one another. Timesavers initiated a third-party action against IHPI, alleging negligence.

The district court dismissed Timesavers' cross-claim against Chorney because the ordinary negligence claim was covered by a Pierringer release that IHPI had entered with Swanson. The district court also denied Timesavers' and Chorney's motions for summary judgment.

After a lengthy trial, the jury rendered a special verdict by which it found Timesavers negligent for failing to inspect, test, or assemble the sander properly. The jury also found Chorney grossly negligent, Swanson negligent, and IHPI negligent in failing to provide Swanson with a safe work environment. The jury found the parties' negligence to be the direct cause of Swanson's injury and apportioned fault in this manner: Timesavers 15 percent, Chorney 30 percent, IHPI 40 percent, and Swanson 15 percent. The jury awarded Swanson $766,726 in damages.

Based upon this special verdict, the trial court concluded that Swanson was entitled to judgment against Chorney and Timesavers, jointly and severally, in the amount of $516,742.59. The court limited Timesavers' liability to 60 percent and ordered judgment for Swanson against Timesavers in the amount of $172,247.53 plus pre- and postjudgment interest and reasonable costs and disbursements. The court awarded judgment against Chorney in the amount of $344,495.06 plus pre- and postjudgment interest and reasonable costs and disbursements.

Timesavers and Chorney each moved for JNOV or, in the alternative, a new trial. The trial court denied these motions and ordered judgment for Swanson.

1. Chorney's gross negligence

Swanson has collected workers' compensation benefits from his injury; therefore, the Workers' Compensation statute governing claims among coemployees applies. An employee may maintain a claim against a coemployee only if he or she establishes that the coemployee had a personal duty toward the employee and the injury arose from the coemployee's gross negligence. Wicken v. Morris, 527 N.W.2d 95, 98 (Minn. 1995); see also Minn. Stat. § 176.061, subd. 5(c) (1994) (coemployee not liable for injury unless it resulted from gross negligence). The personal duty one employee owes another is the same as between two people in average daily contact: "the duty to refrain from conduct that might reasonably be foreseen to cause injury to another." Wicken, 527 N.W.2d at 98. "Gross negligence is negligence of the highest degree." Terveer v Norling Bros. Silo Co., Inc., 365 N.W.2d 279, 281 (Minn. App. 1985), review denied (Minn. May 31, 1985).

Chorney argues the trial court erred in denying him a directed verdict or JNOV, because, as a matter of law, he was not grossly negligent. Chorney relies heavily on Wicken to support his argument that he had no personal duty, but the facts are distinguishable. In Wicken, 527 N.W.2d at 97, a manager fraudulently procured a DNR permit to burn hazardous materials. The illegal fire caused an explosion that killed a man. The supreme court overturned the denial of summary judgment for defendant, because his conduct at issue did not fall within his personal duty to the victim. Id. at 99. The court reasoned that applying for a permit was an "administrative activity" that did not relate to the manager's personal duty to the victim. Id.

In contrast, Chorney's decision to assist the men as they worked on the sander invoked his personal duty to his coemployees. Chorney's conduct was not an administrative activity. The motivation behind Chorney's conduct was typical of one employee attempting to help another; he offered to operate the control panel to save Schaefer the time and effort of walking around the sander to access the control panel. He was aware of the mechanical problems with the sander, as well as Swanson's presence near the motor of the machine. He admitted that the control panel confused him; he acted even though he did not understand what Schaefer was asking him to do. Without fully appreciating the hazard of the situation, Chorney pulled out the top head button and started the machine. Under these circumstances, Chorney had the duty as a coemployee to "refrain from conduct that might reasonably be foreseen to cause injury to another." Id. at 98.

Nor are we persuaded by Chorney's argument that he is not liable based on a line of cases that establishes that the employer bears the duty to provide a safe workplace. See Terveer, 365 N.W.2d at 281 (holding coemployee not liable for improper scaffold design, because providing safe scaffold was employer's duty); Nelson v. Rodgers Hydraulic Inc., 351 N.W.2d 36, 38 (Minn. App. 1984) (holding corporate officer was not liable for injuries from hydraulic press, because creating safe work environment was nondelegable duty of employer).

The claim against Chorney focuses on his actions that contributed to Swanson's injuries over and above the nature and condition of the sander. Unlike Terveer, 365 N.W.2d at 280, Chorney was not involved in the development or assembly of the sander, but he did open himself up to personal liability when he decided to offer to help and failed to exercise proper care. Chorney's conduct also distinguishes him from Nelson, where the corporate officer had not taken any steps to invoke a personal duty toward Nelson. 351 N.W.2d at 37. Indeed, the officer first heard of Nelson's complaints about the hydraulic press after the accident had occurred, whereas Chorney knew that Swanson was inside the sander, attempting to fix it, when he offered to help. Based on these facts, our analysis of the gross negligence claim necessarily focuses on Chorney as coemployee, not on the employer.

This record supports the jury verdict finding that Chorney was grossly negligent. The trial court did not err in denying JNOV.

2. Manufacturing flaw

Timesavers contends the lack of any evidence of defective manufacturing warranted a directed verdict or JNOV. Timesavers argues that the evidence at trial related only to the defective design, not to the defective manufacture of the sander. Consequently, Timesavers claims the record is without evidence to support the jury's verdict that the sander was defective due to Timesavers' failure in manufacturing to "properly inspect, test or assemble the product." We disagree.

Negligence and strict liability are distinct theories in manufacturing flaw cases, whereas the theories merge in design defect cases. Bilotta v. Kelley Co., Inc., 346 N.W.2d 616, 622 (Minn. 1984). Strict liability manufacturing flaw cases focus on the condition of the product at the time the manufacturer distributes it; the manufacturer's conduct is irrelevant. Id. In contrast, in a design defect case, the defect lies in the design the manufacturer consciously chose for its product. Id. In a strict liability design defect case, "knowledge of the condition of the product and the risks involved in that condition will be imputed to the manufacturer." Id.

Contrary to Timesavers' argument, the record contains evidence to support the verdict under both the strict liability and the negligence theory. Swanson presented expert testimony that the control panel of the sander was defective because it violated national fire protection requirements in various ways: improper use of color coded switches, improper location of switches, and improper labelling of switches. The expert said these defects in the control panel were a direct cause of the accident because they led to Chorney's confusion about which button to operate and how.

He also testified that Timesavers failed to assemble and inspect the finished product to guarantee that the switches were installed properly. The expert testified that the electrical assembler who installed the switches had the ultimate choice in selecting the color and location of the switches. Here, the assembler's choices resulted in a defective control panel that did not comply with safety standards. The expert based this opinion on the fact that electrical assemblers do not know the applicable codes and standards governing control panels.

The jury could found that Timesavers defectively manufactured the sander based on this evidence alone. Given the stringent standard for JNOV, this evidence is sufficient to support the trial court's denial of JNOV and to sustain the jury verdict. See Rettman, 354 N.W.2d 429 (appellate court must affirm verdict if "any competent evidence" supports it).

3. Causation

Timesavers argues that Swanson has failed to establish that any alleged defect in the sander caused Swanson's injuries because IHPI's own modification to the sander was the proximate cause. Had IHPI not taped over the safety interlock system, Timesavers contends, the motor would not have run with the doors open and Swanson would not have been hurt. We disagree. Timesavers espouses the "but-for" test of causation, which the supreme court has expressly rejected. Harpster v. Hetherington, 512 N.W.2d 585, 586 (Minn. 1994); Kryzer v. Champlin Am. Legion, 494 N.W.2d 35, 37 (Minn. 1992) (citing Childs v. Standard Oil Co., 149 Minn. 166, 170, 182 N.W. 1000, 1002 (1921)). The court has long distinguished between the occasion and the cause of an injury. Kryzer, 494 N.W.2d at 37. A "defendant's act * * * become[s] injurious only through the wrongful act of another and * * * liability attache[s] only to the last act." Id. (citing Childs, 149 Minn. at 171, 182 N.W. at 1002).

Timesavers urges this court to adopt a New York ruling that the manufacturer of machinery is not liable for damages that arise after the user has disabled the security device. Kromer v. Beazer East, Inc., 826 F. Supp. 78, 82 (W.S.N.Y. 1993). But in Minnesota, the removal of a safety device is not a superseding cause if it is reasonably foreseeable. Johnson v. Southern Minn. Mach. Sales, Inc., 442 N.W.2d 843, 846-47 (Minn. App. 1989) (holding saw manufacturer liable for injury to carpenter who removed safety guard to perform freehand cutting, because such use was foreseeable to manufacturer), review denied (Minn. Sept. 21, 1989). Timesavers' own expert witness explained that bypassing the safety interlock system was necessary and foreseeable in order to allow maintenance, diagnosis, and service to the sander. He admitted that he, himself, carried a magnet to override magnetic interlocks.

The evidence in the record shows that IHPI taped over the interlocks when it first tested the sander and at other times in order to allow service personnel to view the motor while it ran. In addition, Chorney had been responsible for deciding to run the sander with the back doors open as a general practice in order to reduce the clogging problem in the vacuum unit. In order to run the machine with the doors open, he needed to tape the interlock switches to override the safety system. Both Swanson and Chorney knew the interlock switches were taped on the day of the accident. Given these facts, on the day of the accident Chorney knew the safety system was overridden, the doors were open and, consequently, the sander was fully operational if he engaged the power switch. The override of the interlock system was foreseeable and, thus, not a superseding cause. Johnson, 442 N.W.2d at 846-47.

This evidence amply supports the jury's finding that the machine's defects were the proximate cause of the accident. The trial court did not err in denying JNOV.

4. Assumption of the risk

Timesavers next contends that Swanson forfeited any claims for his injuries when he assumed the risk by working with the sander motor while the interlocks were bypassed and the system was able to run at the push of a button. Again, we disagree.

Both primary and secondary assumption of the risk require a party to know of and appreciate the risk and voluntarily choose to take the risk, despite the opportunity to avoid it. Andren v. White-Rogers Co., 465 N.W.2d 102, 104-05 (Minn. App. 1991), review denied (Minn. Mar. 27, 1991).

We are not persuaded by Timesavers' efforts to liken Swanson's conduct to a primary assumption of the risk. The cases upon which Timesavers relies involve injuries to people who acted alone or who assumed the risk while dangerous conduct was in progress. See id. at 104 (court held homeowner assumed risk of explosion and injury when he decided to smoke cigarette inside house while he investigated propane gas leak); Goodwin v. Legionville Sch. Safety Patrol Training Ctr., Inc., 422 N.W.2d 46, 50 (Minn. App. 1988) (court held experienced roofer assumed risk of falling when she chose to work on rooftop), review denied (Minn. June 23, 1988); Swagger v. City of Crystal, 379 N.W.2d 183, 185 (Minn. App. 1985) (court held spectator assumed risk of being hit by ball or bat when she sat close to first baseline of softball field while game was in progress), review denied (Minn. Feb. 19, 1986).

In contrast, Swanson did not step into the motor of the machine as it ran, nor did he become injured solely as a result of his own conduct. Swanson did not choose to work on the machine while it was running; he began working when the machine was off. Although he knew the interlock system was bypassed, he had no reason to believe that the machine would start while he was working on the sanding heads. Furthermore, his injuries were the result of Chorney's misuse of the control panel and the defective nature of the machine. Timesavers seeks to disqualify Swanson from raising a claim simply because a risk was possible. But the primary assumption of the risk doctrine only applies when a plaintiff is aware of a specific danger. See Olson v. Hansen, 299 Minn. 39, 44, 216 N.W.2d 124, 127 (1974) (court held that primary assumption of risk doctrine did not apply to snowmobiling, because snowmobiling itself was not inherent danger, but rather act was made more dangerous by defendant's negligent operation of sled).

Swanson's conduct was, at most, a secondary assumption of risk, which is a type of contributory negligence. Armstrong v. Mailand, 284 N.W.2d 343, 349 (Minn. 1979) (secondary assumption of risk involves voluntary encounter with known and appreciated hazard without relieving defendant of its duty of care with respect to hazard). In finding Swanson 15 percent negligent, the jury recognized that Swanson was negligent in his conduct and assumed the risk. The record supports that determination. The trial court did not err in denying JNOV.

5. Motions for new trial

Chorney and Timesavers raise alleged errors that they contend warranted a new trial. We must affirm the trial court's decision to deny a motion for new trial unless the verdict is "manifestly or palpably contrary to the evidence." ZumBerge v. Northern States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992).

a. Jury instructions

Selection of the jury instructions rests within the broad discretion of the trial court. State Farm Fire & Cas. Co. v. Short, 459 N.W.2d 111, 113 (Minn. 1990). We allow the trial court "considerable latitude" in selecting the language of the jury instructions and will not reverse absent an abuse of discretion. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986).

Chorney first contends the jury instruction on gross negligence should have been more detailed. We see no abuse of discretion or legal error in the trial court's instruction; it is an accurate statement of the law and addresses some of Chorney's concerns. Therefore, the gross negligence instruction does not warrant a new trial. See Alevizos v. Metropolitan Airports Comm'n, 452 N.W.2d 492, 501 (Minn. App. 1990) (holding no abuse of discretion if jury instructions fairly and correctly state applicable law), review denied (Minn. May 11, 1990).

Chorney and Timesavers allege that the jury should have received an instruction on the primary assumption of the risk because the facts surrounding the accident are in dispute and support both theories of assumption of the risk. See Wagner v. Thomas J. Obert Enters., 396 N.W.2d 223, 226-27 (Minn. 1986) (requiring court to instruct jury on both theories of assumption of risk when parties present disputed facts of how accident occurred). We disagree for two reasons. First, the parties agree on the events leading up to the accident. More importantly, an instruction on primary assumption of the risk was not warranted here because the facts do not meet the definition of primary assumption of the risk or support such a claim. See Lhotka v. Larson, 307 Minn. 121, 127-28, 238 N.W.2d 870, 874-75 (1976) (party is entitled to specific instruction on theory of the case if the record contains evidence to support it).

Timesavers claims it was entitled to a jury instruction on the substantial modification of the sander, due to the manner in which IHPI's employees taped over the safety interlock system to allow the sander to run with the back doors open and the motor exposed. This theory failed at trial, however. Experts in the industry presented evidence that the alleged modification was foreseeable and permissible for service and maintenance of the sander. Consequently, Timesavers was not entitled to an instruction on substantial modification because the evidence did not support it. Id.

Finally, Timesavers has not shown that the trial court committed fundamental error when it instructed the jury to apportion damages among the defendants. Timesavers alleges fundamental error only because it failed to object to the jury instruction at trial or to raise the issue in its motion for a new trial. See State v. Malaski, 330 N.W.2d 447, 451 (Minn. 1983) (court may consider plain error or error of fundamental law for first time on appeal); Minn. R. Evid. 103(d) (court may take notice of errors in fundamental law or plain errors affecting substantial rights even though party did not bring error to court's attention). The trial court's instructions were in the context of explaining the special verdict form in which the jury had the choice to find negligence and causation. The court merely required the jury to apportion the damages if it found the requisite negligence had occurred. This instruction did not constitute fundamental error.

b. Improper cross-examination

Timesavers contends that counsel for Swanson used improper impeachment techniques and made improper statements during cross-examination. Counsel for Timesavers objected and the court, after consideration, overruled the objections. Generally, the manner and scope of allowable cross-examination rests within the trial court's discretion; this court will not reverse absent an abuse of discretion. Nelson v. Austin Transit, 271 Minn. 377, 381, 135 N.W.2d 886, 889 (1965). Timesavers has not shown that the court's failure to sustain the objections was a clear abuse of discretion.

c. Medical expenses

Both Timesavers and Chorney contend that the record does not support the award of $100,000 in future medical expenses. The trial court has the discretion to grant a new trial on the basis of excessive damages; this court will not overturn that determination absent an abuse of discretion. Advanced Training Sys. v. Caswell Equip. Co., 352 N.W.2d 1, 11 (Minn. 1984).

Swanson's psychologist gave detailed testimony regarding Swanson's psychological condition and his need for counselling. The doctor declined to prescribe a specific amount of time for treatment, explaining that he will need treatment "until the conditions are resolved." Additionally, Swanson's medical doctor testified that Swanson is a likely candidate for early onset of arthritis. The record contains some evidence regarding the costs of treatment. Swanson met his burden of showing the need for future medical expenses. Krutsch v. Walter H. Collin GmBh Verfahrenstechnik Und Maschinenfabric, 495 N.W.2d 208, 213 (Minn. App. 1993), (requiring party seeking future medical expenses to show need and establish amount of damages through expert testimony), review denied (Minn. Mar. 22, 1993). The trial court did not abuse its discretion in allowing the damages award to stand.

6. Contribution claim

Finally, Timesavers contends the trial court erred in holding Timesavers and Chorney jointly and severally liable for the judgment and in calculating the contribution claim. Timesavers challenges joint and several liability on the basis that if Chorney were liable, then his employer, IHPI, would be vicariously liable and the contribution statute does not govern an employer's contribution claim. See Minn. Stat. § 604.02, subd. 1 (1994) (providing limits to joint and several liability); Kempa v. E.W. Coons Co., 370 N.W.2d 414, 420-21 (Minn. 1985) (holding employer's obligation for employee's damages is limited to employer's obligation for workers' compensation benefits). This line of argument is unpersuasive, given that the record supports the jury's finding that Chorney was grossly negligent and the workers' compensation law consequently does not provide him relief. The workers' compensation statute regarding remedies specifically holds a coemployee liable for damages resulting from his gross negligence. Minn. Stat. § 176.061, subd. 5(c). The trial court properly found Chorney and Timesavers jointly and severally liable.

Timesavers also claims the trial court miscalculated the contribution claim under Lambertson v. Cincinnati Corp., 312 Minn. 114, 130, 257 N.W.2d 679, 689 (1977). In Lambertson, the court set forth a rule allowing contribution from the employer up to the amount of the workers' compensation benefits. Id. The tortfeasor's contribution claim against the negligent employer includes past workers' compensation benefits as well as those due and payable after judgment is entered. Wilken v. International Harvester Co., 363 N.W.2d 763, 766 (Minn. 1985).

Timesavers argues the trial court erred in reducing the $100,000 future medical expenses award to its present value of $17,001.02 because the jury had already discounted the damages. Timesavers has misinterpreted the instructions of Wilken. "After the verdict is in, the trial court can take further evidence to aid it in calculating the amount of the contribution claim and the discount factor." Id. at 768. This language demonstrates that the trial court must calculate the reduction after the jury has presented the award of future medical expenses. Thus, contrary to Timesavers' allegation, the trial court properly calculated the amount of Lambertson liability.

Affirmed.

LANSING, Judge (concurring in part and dissenting in part).

I concur in the majority opinion except on the issue of the co-employee's liability for gross negligence. Under the standards established in Wicken v. Morris, 527 N.W.2d 95 (Minn. 1995) and Dawley v. Thisius, 304 Minn. 453, 231 N.W.2d 555 (1975), the actions of Michael Chorney do not, as a matter of law, constitute gross negligence.