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STATE OF MINNESOTA IN COURT OF APPEALS A09-1945 Bradley J. Domagala, Appellant, vs. Eric Rolland, et al., Respondents. Filed August 31, 2010 Affirmed in part, reversed in part, and remanded Connolly, Judge Washington County District Court File No. 82-CV-08-3973

Thomas J. Weidner, Kevin S. Sandstrom, Eckberg, Lammers, Briggs, Wolff & Vierling, P.L.L.P., Stillwater, Minnesota (for appellant) David E. Camarotto, Bassford Remele, P.A., Minneapolis, Minnesota (for respondents)

Considered and decided by Connolly, Presiding Judge; Stoneburner, Judge; and Schellhas, Judge. SYLLABUS The exercise of reasonable care by a party who creates a dangerous situation may include giving a warning to anyone placed at risk by that dangerous situation. OPINION CONNOLLY, Judge On appeal from the district courts denial of a motion for a new trial, appellant argues that the district court erred when it (1) concluded there was no duty to warn

appellant as a matter of law, and (2) improperly used "negative" jury instructions, which unduly emphasized respondents case and confused the jury. Because the district court correctly concluded there was no special relationship giving rise to a duty to warn, we affirm in part. But because the district court abused its discretion by giving the negative instructions, which confounded the standard of care owed to appellant, overemphasized respondents case and confused the jury, we reverse in part and remand for a new trial. FACTS Respondent Eric Rolland owns respondent Rolland Building Corporation, a Wisconsin construction company that designs and builds residential and commercial properties and performs remodeling services. Rolland and his corporation are

collectively referred to herein as "respondent." Appellant Bradley Domagala is married to respondents cousin. Appellant and his wife asked respondent to perform some

grading work around their home. Their yard had a "rough grade" and respondent was "going to do a finished grade, which means preparing for sod or seed." The project was expected to take approximately six hours. On June 23, 2003, respondent brought his New Holland LX985 skid loader over to appellants home to work on the yard. Respondent also brought the corresponding forks; the leveling, or sod, bar; and the bucket attachments. Throughout the course of the project, respondent operated the skid loader while appellant watched and picked up rocks and debris from the yard. Respondent did not ask appellant to help him in any way. The machine was noisy and respondent wore ear protection. When appellant wanted to speak with respondent, he would approach the skid loader with his hands up, palms out, and 2

respondent would then put his hands up in the air, indicating that his hands were away from the controls. The skid loaders attachments needed to be switched out on several occasions during the project. In order to change an attachment, respondent would first take off his seatbelt, go out through the front, walk over the bucket, and face the skid loader. Respondent would then pull up on the levers one at a time and the attachment would be released. Next, respondent would go back into the skid loader, put back on his seatbelt, back up, and then pull up to the desired attachment. Finally, respondent would hook up the hydraulics and saddles; check to make sure everything was set right; and again get out of the skid loader, face the machine, pull the levers down, and latch them in. Afterwards, respondent would get back in the skid loader, lift the boom slightly, and check to make sure the pins were through the receivers. It was common for dirt and other debris, such as rocks, to get lodged in the levers. When this occurred, respondent would detach the handle or pin that would release; raise the attachment a couple of inches off the ground; and "flutter the hydraulics to shake" the attachment. This would "create[] extra play," loosening whatever was stuck in the other lever. Approximately three-quarters of the way through the project, roughly two hours in, respondent needed to remove the skid loaders bucket and attach the leveling bar. A piece of debris was stuck in one of the levers. Respondent released one of the levers and began "fluttering the bucket vertically." Respondent described this as a very dangerous situation because the skid loaders bucket was in the air, hanging by a single pin.

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Respondent then became aware that appellant was coming straight at him. Appellant could see that there was a stone stuck in one of the levers. Respondent took his hands off the controls and raised them up. The bucket was approximately 10-20 inches off of the ground. Before respondent could say anything to appellant, appellant reached up and grabbed the lever, releasing the bucket. Appellant did not recall giving "any indication that [he] was going to release the lever." The cutting edge of the bucket was pointed towards the ground, and landed directly on appellants left foot. As a result, three of appellants toes were crushed and eventually amputated. Appellant sued respondent, alleging that respondent negligently and carelessly operated the skid loader and failed to warn him of the dangers associated with trying to unlatch the skid loaders bucket. Respondent moved for summary judgment, asserting that there was no special relationship between the parties giving rise to a duty to protect or a duty to warn. The district court denied the motion for summary judgment,

concluding that respondent "owed a duty of care to act in a reasonable manner" when operating the skid loader and that respondent "created a dangerous situation when [respondent] elevated the bucket attachment while it was attached to the machinery by only one lever; thus, creating a duty of care owed to [appellant]." However, the district court concluded as a matter of law that no special relationship existed between the parties giving rise to a duty to protect or a duty to warn. The case proceeded to a jury trial. Among other instructions, respondent requested two special jury instructions in light of the district courts summary-judgment order. The first stated that respondent had no duty to protect appellant: 4

A person generally has no duty to act for the protection of another person. A legal duty to protect will be found to exist only if there is a special relationship between the parties and the risk is foreseeable. The Court has ruled, as a matter of law, that no duty to protect exists in this matter and you must not consider such a duty in your deliberation in this case. The second stated that respondent had no duty to warn appellant. A special relationship giving rise to a duty to warn is only found on the part of common carriers, innkeepers, possessors of land who hold it open to the public, and persons who have custody of another person under circumstances in which that other person is deprived of normal opportunities of selfprotection. The Court has ruled, as a matter of law, that no duty to warn exists in this matter and you must not consider such a duty in your deliberation in this case. Appellant objected to the proposed instructions, asserting that while [i]t is undisputed that there is no special relationship between the parties that would require a heightened Duty to Protect or a heightened Duty to Warn[,] . . . [i]t is feasible that the jury might find that the duty of reasonable care included a warning in order to protect [appellant] from the dangerous situation created by [respondent]. Appellant also argued that these instructions may be confusing to the jury and, because the district court already found that such duties did not exist, these instructions should not be part of the charge to the jury. The district court stated it would give both of the requested instructions, but also acknowledged that appellant was not foreclosed from arguing that a reasonable person would have warned appellant. Respondent also brought a motion requesting that, if appellants counsel attempted to refer to either a duty to warn or a duty to protect in the presentation of his case, the district court would provide a curative instruction. The district court denied this motion,

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but stated that it entertained the possibility of rereading the requested no-duty-to-warn instruction if the court believed "the line ha[d] been crossed." At the close of the evidence, the district court read the instructions to the jury, including the no-duty-to-protect and no-duty-to-warn instructions requested by respondent, and the following special instruction requested by appellant regarding the duty of care owed based on the creation of a dangerous situation: If a person created an unreasonable risk of causing physical harm to another, that person has a duty to exercise reasonable care to prevent the risk from taking effect. This duty applies even though at the time of the creation of the unreasonable risk, the person had no reason to believe that it will involve such a risk. After counsel made closing arguments, the district court repeated (1) respondents noduty-to-warn instruction; (2) appellants dangerous-situation instruction; and (3) the standard definitions of "reasonable care" and "negligence." See 4 Minnesota Practice, CIVJIG 25.10 (2006) (defining "reasonable care" and "negligence"). The jury

subsequently found that respondent was not negligent in the operation of the skid loader and that appellant acted negligently at the time of the incident.1 Appellant moved for a new trial based on the district courts inclusion of the no-duty-to-warn and no-duty-toprotect instructions to the jury. The district court denied appellants motion. This appeal follows.

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The jury was permitted to render a six-out-of-seven majority verdict after it had deliberated for six hours. See Minn. Stat.

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