William M. Bradt, Hansen, Dordell, Bradt, Odlaug and Bradt, 3900 Northwoods Drive, Suite 250, St. Paul, MN 55112-6973 (for appellant).

Considered and decided by Willis, Presiding Judge, Randall, Judge, and Klaphake, Judge.

Appellant challenges the district court's denial of his motion for a judgment notwithstanding the verdict (JNOV) or new trial. We affirm.

Before the accident, Steven did not know that the tractor had any steering problems. Richard informed Steven after the accident that he had prior knowledge the steering was loose and that the front wheels sporadically turned 360 degrees. Richard attributed the looseness to the tractor's age and explained the free rotation of the front wheels as caused by missing stop pins on the sector gear of the steering assembly. But when Richard and Steven repaired the tractor after the accident, they learned that the looseness and the free rotation of the front wheels resulted from the sector gear, bushings, and bearings being worn out.

On April 26, 1993, Steven sued Richard in negligence for Steven's injuries arising from his use of the tractor. Richard moved for summary judgment, which the district court granted on May 17, 1994. Steven appealed to this court, which held in an unpublished opinion that a factual issue concerning Richard's knowledge of the extent of the steering mechanism defects, and thus the foreseeability of injury to users of the tractor, precluded the grant of summary judgment. Sontag v. Sontag, No. C1-94-1717 (Minn. App. Jan. 17, 1995). Accordingly, this court reversed the grant of summary judgment and remanded to the district court.

On remand, the district court scheduled the case for jury trial. Before trial, Richard moved in limine to exclude all evidence concerning his initial belief that the absence of stop pins had caused the free rotation of the tractor's front wheels. Richard argued that because the absence of stop pins did not cause the accident, evidence concerning stop pins would be prejudicial and confusing. The district court denied the motion on the ground that

whether it was a looseness because of lack of a stop pin or bushings loose or whatever that the Plaintiff would have a right to develop its theory that there was enough defect in the steering mechanism to warrant warning to the Plaintiff in this matter.

Although Richard assumed that the front wheels sometimes rotated freely because the sector gear had lost its stop pins, the tractor manual's diagram of the tractor's steering mechanism showed that the tractor never had stop pins. Richard conceded at trial that the looseness of the steering assembly, not the absence of stop pins, caused the steering to jam and the front wheels to rotate freely.

The jury found Richard negligent in directing Steven to use the tractor and concluded that Richard's negligence directly caused Steven's injuries. The jury found no negligence on Steven's part.

Richard moved for a JNOV or new trial, alleging, among other things, that the district court erred by denying his motion in limine and by not finding, as a matter of law, that he had no duty to investigate the looseness of the steering mechanism. The district court denied both a JNOV and a new trial.

Richard argues that the looseness in the tractor's steering was normal given the tractor's age and that as a matter of law such looseness did not give rise to a duty to investigate. "The existence of a legal duty to protect another person generally presents an issue for the court to decide as a matter of law." Donaldson, 539 N.W.2d at 792 (citation omitted). However, a court should submit close questions on foreseeability to the jury. Lundgren v. Fultz, 354 N.W.2d 25, 28 (Minn. 1984).

The Sontag I court noted, "foreseeability was not so clear that it should have been decided by the court as a matter of law." Although Sontag I was released before the parties had presented evidence tending to establish or refute the foreseeability of the accident, the accident's foreseeability remained uncertain. As a result, the court properly submitted the question of foreseeability to the jury.

Richard also contends that the evidence did not support the jury's finding of foreseeability. Richard conceded, however, that he knew the steering was loose. He also acknowledged that the looseness of the steering assembly and the excessive wear of the sector gear, not the absence of stop pins, caused the 360-degree rotation of the front wheels. The evidence thus supports a conclusion that because Richard knew the steering assembly was loose due to excessive wear, he should have reasonably foreseen that the wear would cause problems with the steering, including the jamming and loss of control that did occur.

Richard also challenges the jury's finding of proximate cause. Richard correctly states that Minnesota courts reject the "but for" theory of causation, see Harpster v. Hetherington, 512 N.W.2d 585, 586 (Minn. 1994) (disapproving of "but for" test), and argues that the jury must have erroneously relied on a "but for" analysis in determining proximate cause because no other theory would support a finding of foreseeability.

The district court rejected this argument when it employed the substantial factor test instead of a "but for" analysis. The court cited Flom, 291 N.W.2d at 917, for the proposition that proximate cause exists where a defendant's "negligent conduct was a substantial factor in bringing about the injury." The court then found that a reasonable jury could have determined that Richard's failure to investigate the looseness in the steering assembly was a substantial factor in causing the accident.

Although the 360-degree rotation may have resulted from the sector gear being worn out, while the steering lock-up was due to disintegrated thrust bearings, both the worn sector gear and disintegrated thrust bearings arose within the steering mechanism itself, and both resulted from excessive wear. If Richard had investigated the looseness of the steering assembly, he would have seen that the thrust bearings no longer held the pivot shaft firmly in place and that as a result, uncontrollable rotation of the front wheels and a jam of the steering assembly were possible. On this record, we agree with the district court that the evidence reasonably tends to support a finding that Richard's failure to investigate the looseness in the steering assembly was a substantial factor in causing the accident.

We reject the district court's conclusion that the record does not support a finding of negligence based on Richard's failure to warn Steven of the tractor's defective steering. On this record, appellant's failure to warn can also support the jury verdict. The jury returned a verdict of simple, not egregious, negligence. Richard admitted he knew that the steering wheel sporadically failed to control the direction of the front wheels. It would be speculation to state precisely how Steven would have driven the tractor differently if Richard had warned him of the steering defect, but it can reasonably be assumed that with such a warning Steven would have driven differently and been more prepared for the sudden loss of control. Thus, we conclude Richard's failure to warn, in addition to the failure to investigate, supports the district court's denial of a JNOV.

Here, Richard contends that the district court erred by denying his motion for a new trial. Richard argues that the court abused its discretion by not excluding all testimony concerning his belief that the steering mechanism had lost its stop pins. Richard further alleges that admission of such evidence unfairly prejudiced him because although the absence of stop pins did not cause the accident, the stop pin testimony "would indicate to the jurors that they may consider that knowledge [of the missing stop pin] as evidence that appellant was negligent, or that his negligence was a proximate cause, on a 'but for' basis."

Although the absence of stop pins did not cause the steering to lock, the stop pin testimony was relevant to show Richard's knowledge that wear on the steering assembly had caused it to malfunction. In addition, Richard has failed to support his allegations of prejudice. The district court did not abuse its discretion by denying Richard a new trial based on his allegation that the stop pin evidence unfairly prejudiced him.

Richard has not shown that the district court abused its discretion in denying his motion for a JNOV or new trial. The record reasonably tends to support a finding that Richard's negligence was a substantial factor in causing the accident.

Affirmed.