Tort/Liability Law. Comparative Fault, Joint and Several Liability, and Assumption of Risk

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1 Tort/Liability Law Comparative Fault, Joint and Several Liability, and Assumption of Risk Minnesota is a comparative fault state; thus, the fault of all parties to an occurrence is compared whether the case is based on negligence, strict liability, or breach of warranty. A plaintiff may recover against any party if the plaintiff's fault is not greater than the fault of the other party. However, the plaintiff's recovery is reduced by the percentage of his or her fault. In Minnesota comparative negligence may be used as a defense in an action based on strict liability. Minnesota s comparative fault statute defines "fault" broadly as acts or omissions that are in any measure negligent or reckless, or that subject a person to strict tort liability. The term also includes breach of warranty, unreasonable assumption of risk not constituting an express consent or primary assumption of risk and misuse of a product. With respect to joint and several liability, Minnesota Statute was amended in 2003 for claims arising after 8/1/03 and is now more friendly to defendants. The Minnesota law for claims that occur before 8/1/03 still follows the principle of joint and several liability. However, for such claims, if an actor is found 15% or less at fault, his or her negligence is limited to four times that amount in the event that another defendant or defendants are insolvent or were previously released from the case. If the claim arises after 8/1/03 and two or more persons are severally liable, they will not be held jointly and severally liable for the whole award unless they meet one of the exceptions. More specifically, contribution to awards shall be in proportion to the percentage of fault attributable to each individually, unless one of the following is true: (1) a person's fault is greater than 50%; (2) two or more persons are acting in a common scheme or plan that results in injury; (3) a person commits an intentional tort; or (4) a person's liability arises under pesticide control, water pollution control, waste management, environmental response and liability, leaking underground storage tanks and pipeline safety, public nuisance, damage to the environment or the public health, or any other environmental or public health law, or any environmental or public health ordinance or program of a municipality (as defined in Section ).

2 Minnesota recognizes the doctrines of primary and secondary assumption of risk. Secondary assumption of risk is not a complete defense, but simply an element of fault. Primary assumption of risk involves situations where plaintiff's conduct is to such a high degree as to absolve a defendant from any duty. Situations involving primary assumption of risk are rare, and the factors to establish it exists are outlined in Andren v. White-Rodgers Co., 465 N.W.2d 102 (Minn. App. 1991). A jury is instructed as to the effect of its answers to comparative fault or negligence questions. See CIVJIG This jury instruction provides that a jury is made aware that if it finds that plaintiff s negligence is greater than 50%, the plaintiff receives no damages. It also provides the jury with knowledge that if it finds that plaintiff s negligence is greater than any individual defendant, that Plaintiff will receive no damages from that defendant. Absent/Released Parties In a negligence case, a jury must have the opportunity to consider the separate fault of all persons involved, even if some are not parties to the lawsuit, and even when the person cannot be liable to the plaintiff or other tortfeasors because of prior releases. Schendel v. Hennepin County Medical Center, 484 N.W.2d 803, 808 (Minn. App. 1992) (citing Lines v. Ryan, 272 N.W.2d 896, (Minn. 1978)). A pre-trial Pierringer release does not obviate the need to submit the fault of the settling party. On the contrary, after a pre-trial Pierringer, the fault of the settling tortfeasor is submitted to the jury for allocation on the special verdict form along with all other entities whose fault contributed to the loss. [W]here some but not all of the defendants have settled with the plaintiff [on a Pierringer release], the settling defendants negligence must be submitted to the jury even though they have been dismissed from the lawsuit. * * * * It is established without doubt that, when apportioning negligence, a jury must have the opportunity to consider the negligence of all parties to the transaction, whether or not they be parties to the lawsuit and whether or not they can be liable to the plaintiff or to the other tort-feasors either by operation of law or because of prior release. Lines v. Ryan, 272 N.W.2d 896, (Minn. 1978). The effect of a Pierringer release is to limit each joint tortfeasor to liability only for that part of the award, which is his/her/its percentage of causal fault. Schneider v. Buckman, 433 N.W.2d 98, 101 (Minn. 1988).

3 Motor Vehicle Liability Negligence The typical theory of liability in a motor vehicle case is negligence. There are four elements in a negligence case: duty, breach of duty, direct or proximate cause, and damages. The driver of a motor vehicle has a duty to exercise reasonable care. CIVJIG The duty to exercise reasonable care includes maintaining a reasonable lookout and maintaining control of the vehicle. Id. The driver of a motor vehicle is subject both to common law duties and to statutory duties. Negligence Per Se Minn. Stat. Ch. 169 provides that a violation of the statutory driving duties is prima facie evidence of negligence in a civil action. See Minn. Stat It is not, however, considered negligence per se. It will generally be up to the jury to determine whether or not the statutory duty was violated. Minn. Stat provides that a vehicle, driver, or carrier that is subject to the federal motor carrier safety rules shall comply with the more stringent or additional requirements imposed by the federal rules except as to brakes, and then the Minnesota statutes apply. Vicarious Liability Minnesota s Safety Responsibility Act provides for vicarious liability of motor vehicle owners: Driver deemed agent of the owner. Whenever any motor vehicle shall be operated within the state, by any person other than the owner, with the consent of the owner, express or implied, the operator thereof shall in the case of accident, be deemed the agent of the owner of such motor vehicle in the operation thereof. Minn. Stat , subd. 5a. A person who leases a vehicle for six months or longer is deemed to be the owner for purposes of Minn. Stat , subd. 5a. See Minn. Stat. 65B.43, subd. 4. Negligent Hiring, Retention and Entrustment The courts have allowed a plaintiff to introduce evidence on a theory of negligent entrustment even though the owner of the vehicle had admitted liability based upon vicarious liability as owner of the vehicle. Lim v. Interstate System Steel Division, Inc., 435 N.W.2d 830 (Minn. Ct. App. 1989).

4 Negligent hiring and negligent retention, like negligent entrustment, are direct claims against an employer, beyond the usual vicarious liability of the employer for the negligent conduct of its employee committed in the course and scope of employment duties. Negligent hiring applies to knowledge the employer had or should have had at the time of employment of the employee. Negligent retention applies to knowledge the employer acquired or should have acquired after employment (presumably because it was not known or able to be known before hiring). Liability for either tort is predicated on the negligence of an employer in placing a person with known or discoverable propensities in an employment position in which, because of the circumstances of the employment, it was reasonably foreseeable that the employee posed a threat of injury to others. The tort of negligent entrustment has four elements. First, the non-operator must have at least temporary control over use of the automobile. Second, the nonoperator must authorize and/or allow another the use of the automobile. Third, the non-operator must know or have reason to know that the person authorized to operate the automobile was not fit to drive. Finally, the authorized operator must cause injury by negligent operation. There is no requirement that the negligent entrustment itself be a direct cause of the accident. If the negligent driver s conduct is a direct result of the accident and there is no intervening superseding cause, the negligent entrustment will be a direct cause of the resultant injury as a matter of law. Axelson v. Williamson, 324 N.W.2d 241 (Minn. 1982). A negligent training claim is not recognized in Minnesota. Johnson v. Peterson, 734 N.W.2d 275 (Minn. Ct. App. 2007). Wrongful Death Actions In Minnesota, a statutory claim for wrongful death exists. Minn. Stat The statute permits a trustee acting on behalf of the surviving spouse and/or next-of-kin to bring a claim based upon the wrongful act or omission of any person or corporation. In general, a wrongful death action must be commenced within three years of the date of death, and the recovery in the action is the amount the jury deems fair and just in reference to the pecuniary loss resulting from the death. The recovery is for the exclusive benefit of the surviving spouse and next-of-kin, and the court determines the proportionate pecuniary loss of the persons entitled to the recovery and orders distribution accordingly. Minnesota has no cap on wrongful death damages but does not allow recovery for emotional distress or grief of the surviving next-of-kin and does not allow recovery for pain and suffering before decedent s death. See CIVJIG Premises Liability This area of law applies to terminal, loading dock and terminal yard accidents. A few general, perhaps competing, rules govern this area of law. First, a store

5 owner is not an insurer of safety of an invitee; the invitee must use reasonable care for his or her own protection. Krengel v. Midwest Automatic Photo, Inc., 295 Minn. 200, 203 N.W.2d 841, 845 (Minn. 1973). Second, a store has a duty to use reasonable care to protect its customers from even obvious hazards on its property, if the store should anticipate that the hazard might cause injury. Gearin v. Wal-Mart Stores, Inc., 53 F.3d 216, 217 (8 th Cir. 1995).

6 Ingress and Egress Minnesota has abolished the traditional distinction between licensees and invitees. Instead, the duty is one of reasonable care to entrants. A landowner's duty to use reasonable care for the safety of all persons on its premises includes a duty to provide and maintain suitable access to and from buildings on the land. McIlrath v. College of St. Catherine, 399 N.W.2d 173, 174 (Minn. Ct. App. 1987). A unique twist to this law comes in the area of maintenance of city sidewalks. The obligation to maintain a public sidewalk in a reasonably safe condition is solely that of the municipality, even where ordinances require the abutting property owner to shovel or clean the boulevard (public) portion of the sidewalk. Sternitzke v. Donahue's Jewelers, 249 Minn. 514, 83 N.W.2d 96 (1957). In other words, although it is customary for a property owner to shovel the boulevard portion of the sidewalk, there is no obligation to do so and the property owner cannot be held liable if it is not shoveled or maintained. This is the rule, as well, in situations where the sidewalk is cracked, broken or fallen. Unless the property owner has created the defective condition of the sidewalk by some affirmative act, the property owner is not liable for its condition. Id. A property owner, however, may be held liable if they make an extraordinary use of the sidewalk for their own convenience. Graalam v. Radisson Ramp, 71, N.W.2d 904 (Minn. 1955). An extraordinary use of a sidewalk arises when the use is not only for the personal convenience and benefit of the property owner, but is of such a nature in kind and degree that it interferes with a normal use of the sidewalk by the public. In such cases, the liability arises because the property owner has been instrumental in causing the hazardous condition. Ice and Snow Not surprisingly, winter in Minnesota presents a fertile occasion for slip and fall cases. However, decisions from Minnesota appellate courts have not imposed unreasonable burdens on property owners. The rule in Minnesota is that a property owner may await the end of a storm and a reasonable time thereafter before removing ice and snow from sidewalks and steps. Niemann v. Northwestern College, 389 N.W.2d 260 (Minn. App. 1986). A fact issue is presented to resolve issues relating to when a storm actually ended. Frykman. v. University of Minnesota-Duluth, 611 N.W.2d 379, 381 (Minn. Ct. App. 2000). For a customer to succeed in a slip and fall case involving a store's icy parking lot, the customer must prove that the store knew about the patch of ice or that the ice patch had been in the lot long enough for the store to discover it through reasonable inspection and take steps to protect the customers from the hazard. Gearin v. Wal-Mart Stores, Inc., 53 F.3d 216 (8th Cir. 1995). In evaluating whether the store was negligent in a slip and fall case, several factors must be considered, including the purpose for which the plaintiff was on the premises, foreseeability of the accident, and ease with which the accident could have been

7 prevented. Block v. Target Stores, Inc., 458 N.W.2d 705 (Minn. App. 1990), review denied (Minn. Sept. 28, 1990). Foreign Substances on the Floor Cases involving foreign substances on a floor are quite fact-specific. For example, in suit by a customer against a grocery store for injuries sustained when she stepped on a banana peel, the Minnesota Supreme Court held the evidence was insufficient to justify finding that a dangerous condition resulted from the acts of the grocery store's employees. Messner v. Red Owl Stores, 57 N.W.2d 659 (Minn. 1953). Also, in a customer's action for injuries sustained while stepping on a nail in an aisle of a department store, the Supreme Court held the evidence was insufficient for a jury to find the store was negligent in permitting a depression in which nails and similar articles could become lodged to remain in the floor. Bragg v. Dayton Co., 4 N.W.2d 320 (Minn. 1942). On the other hand, in Sears Roebuck & Co. v. Peterson, 76 F.2d 243 (8th Cir. 1935), the evidence in an action against a store for injuries to a customer, who tripped on twine left in an aisle by a store employee was held to warrant a jury's finding that the store was negligent in failing to keep the aisle clean. Generally, a retailer is not liable for a fall resulting from a foreign substance on the floor, unless the plaintiff can prove that store employees were the source of the object on the floor or that store employees knew or should have known of its presence and failed to take corrective action.