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STATE OF MINNESOTA IN COURT OF APPEALS A10-1242 A10-1243 A10-1246 A10-1247 Rick Glorvigen, as Trustee for the next-of-kin of decedent James Kosak, Respondent (A10-1242, A10-1246), Thomas M. Gartland, as trustee for the next of kin of decedent Gary R. Prokop, Respondent (A10-1243, A10-1247), vs. Cirrus Design Corporation, Respondent (A10-1242, A10-1243), Appellant (A10-1246, A10-1247), Estate of Gary Prokop, by and through Katherine Prokop as Personal Representative, Respondent (A10-1242, A10-1246), University of North Dakota Aerospace Foundation, Appellant (A10-1242, A10-1243) Respondent (A10-1246, A10-1247). Filed April 19, 2011 Reversed and remanded Larkin, Judge Dissenting, Klaphake, Judge Itasca County District Court File No. 31-CV-05-3673 Philip Sieff, Vincent J. Moccio, Heather M. McElroy, Robins, Kaplan, Miller & Ciresi L.L.P., Minneapolis, Minnesota (for respondent-Rick Glorvigen, as Trustee for the nextof-kin of decedent James Kosak) Eric J. Magnuson, Amie E. Penny, Briggs and Morgan, P.A., Minneapolis, Minnesota; and

Edward J. Matonich, Darrold E. Persson, David Arndt, Matonich & Persson, Chartered, Hibbing, Minnesota (for respondent-Thomas M. Gartland, as Trustee for the next of kin of decedent Gary R. Prokop) Robert W. Vaccaro, Timothy R. Schupp, Gaskins, Bennett, Birrell, Schupp, L.L.P., Minneapolis, Minnesota (for respondent-Estate of Gary Prokop, by and through Katherine Prokop as Personal Representative) Bruce Jones, Daniel J. Connolly, Dan Herber, Faegre & Benson LLP, Minneapolis, Minnesota; and Patrick E. Bradley, Tara E. Nicola, Reed Smith LLP, Princeton, New Jersey (for appellant-Cirrus Design Corporation) Charles E. Lundberg, Steven P. Aggergaard, Bassford Remele, P.A., Minneapolis, Minnesota; and William J. Katt, Leib & Katt, LLC, Milwaukee, Wisconsin (for appellant-University of North Dakota Aerospace Foundation) William M. Hart, Damon L. Highly, Meagher & Geer, P.L.L.P., Minneapolis, Minnesota (for Amicus Curiae-Minnesota Defense Lawyers Association) Robert J. Hajek, Hajek & Beauclaire, LLC, Minnetonka, Minnesota; and Ronald D. Golden, Raymond C. Speciale, Yodice Associates, Frederick, Maryland (for Amicus Curiae-Aircraft Owners and Pilots Association) Andrea B. Niesen, Bird, Jacobsen & Stevens, P.C., Rochester, Minnesota (for Amicus Curiae-Minnesota Association for Justice) Considered and decided by Klaphake, Presiding Judge; Johnson, Chief Judge; and Larkin, Judge. SYLLABUS 1. An airplane manufacturers common-law duty to warn of dangers associated with the use of its aircraft does not include a duty to provide pilot training.

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2.

A negligence claim against an aviation-training provider is barred under the educational-malpractice doctrine where the essence of the claim is that the provider failed to provide an effective education. OPINION

LARKIN, Judge This appeal rises from the district courts entry of judgment against appellants, following a jury trial, on negligence claims stemming from an airplane crash and the resulting death of the planes pilot and passenger. Appellants challenge the district courts denial of their motions for judgment as a matter of law (JMOL) and for a new trial. Appellants primarily argue that they are entitled to JMOL because they did not owe decedents a duty of care. We conclude that appellants are not liable, as a matter of law, under respondents product-liability theory. We further conclude that respondents

claims are noncognizable because they sound in educational malpractice. We therefore reverse and remand for entry of judgment in appellants favor, without addressing appellants other assignments of error. FACTS Gary Prokop and James Kosak were killed during an airplane crash near Hill City, Minnesota, in January 2003. Prokop was piloting the aircraft, a recently purchased Cirrus SR22. Kosak was Prokops sole passenger. Prokop received his pilots license in 2001 and had logged approximately 225 hours of flight time, mostly in his Cessna 172.

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Prokop had a visual-flight-rules (VFR)1 certification. Under this certification, Prokop was prohibited from flying into clouds or other inclement conditions that might require reliance on instrument flying. Although Prokop had not yet obtained his instrument rating, which would have permitted him to fly in instrument meteorological conditions (IMC)2, Prokop was in the process of training for instrument certification. Prokop had logged more than 60 hours of instrument-flight instruction and had fulfilled all of the requirements necessary to take his instrument-flight examination. Prokop purchased his Cirrus SR22 airplane in 2002 from appellant Cirrus Design Corporation. Cirrus provided Prokop with a Pilots Operating Handbook and FAA

[(Federal Aviation Administration)] Approved Airplane Flight Manual for the Cirrus Design SR22. The cover states: THIS HANDBOOK INCLUDES THE MATERIAL REQUIRED TO BE FURNISHED TO THE PILOT BY FAR PART 23 AND ADDITIONAL INFORMATION PROVIDED BY CIRRUS DESIGN AND CONSTITUTES THE FAA APPROVED AIRPLANE FLIGHT MANUAL The handbook is divided into ten sections: (1) general information regarding the airplane and a description of symbols, abbreviations, and terminology used throughout the handbook; (2) limitations, including those related to airspeed, power plant, instrument markings, altitude, maneuvers, and systems; (3) emergency procedures, including ground emergencies, in-flight emergencies, landing emergencies, and system malfunctions;

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Visual flight rules, or "VFR," refers to weather conditions when visibility is three miles or greater and the cloud ceiling is 1,000 feet or greater. 2 Instrument meteorological conditions, or "IMC," are any conditions that do not satisfy VFR standards. 4

(4) normal procedures, including airspeed, preflight procedures, takeoff, climb, cruise, descent, landing, post-landing, and environmental considerations; (5) performance data, including associated conditions affecting performance, flight planning, and a sample problem; (6) weight and balance information, including airplane weighing procedures and loading instructions; (7) airplane and systems description, including primary flight controls, engine, fuel, electrical, and autopilot; (8) handling, service, and maintenance; (9) supplements; and (10) safety information focusing on the Cirrus parachute system. The autopilot system, which is central to this litigation, is described in section seven of the handbook. The handbook indicates that the autopilot features, among other things, "Heading Hold and Command," "Altitude Hold and Command," and "Vertical Speed Hold and Command." The handbook refers the pilot to an applicable supplement for full operational procedures and a description of implemented autopilot modes. The autopilot supplement is contained in section nine of the handbook and is divided into seven sections: (1) general information regarding the autopilot system; (2) limitations on use of the autopilot; (3) emergency procedures if the autopilot malfunctions; (4) normal autopilot operating procedures; (5) performance; (6) weight and balance; and (7) systems descriptions. The "Normal Procedures" section of the autopilot supplement provides detailed instructions regarding in-flight procedures, including how to operate the heading, altitude-hold, and vertical-speed modes. Although FAA regulations did not require Cirrus to offer training, Cirrus included two days of "transition training" in the purchase price of the SR22. Transition training is a specialized type of training that is provided when a licensed pilot learns to fly a new 5

type of plane. It is intended to teach the pilot the intricacies of the new plane that he or she will be flying. For example, Prokops previous aircraft was a Cessna with a top speed of 127 knots. The SR22 had a top speed of 180 knots. And unlike the Cessna 172, the SR22 was equipped with an autopilot system. An expert trial witness described transition training as follows: "[t]he training is there because the airplanes are

different . . . You take the knowledge . . . that the pilot has, and you pretty much tailor a program not specifically to him, but specifically to the airplane that hes coming from and going to so that you can maximize his learning experience essentially." Cirruss transition training is described in a document entitled "Pilot Training Agreement," which states that Transition training for one (1) SR22 pilot will be furnished to the initial Purchaser, subject to the following: .... B. Pilot Training will consist of Cirruss standard two-day transition training program as follows: 1. Aircraft systems training with emphasis on the innovative aspects of the SR22. Examples include combined throttle/propeller control, side yoke and autopilot/trim system. 2. Flight training to proficiency, in accordance with trainers standards. Normally this aspect of training will result in 4-5 hours of flight time. 3. Avionics systems training with particular emphasis on the use of GPS and the multi-function display. The Cirrus transition training assumes a current, active general aviation pilot already rated in single-engine airplanes. Extra training will be available at additional cost for noncurrent pilots and for those who wish to contract for additional training services. 6

The inclusion of transition training in the price of the SR22 was part of Cirruss marketing for the plane. The transition training provided Prokop with the opportunity to earn a high-performance-aircraft endorsement, which is necessary for a pilot to fly an SR22. But the Pilot Training Agreement states that [n]either Cirrus, nor its training contractor, will be responsible for competency of Purchaser (or Purchasers pilot) during or after training. Cirrus does not warrant that this training will qualify Purchaser (or Purchasers pilot) for any license, certificate or rating. Prokop availed himself of the transition training included in the purchase price of the SR22 and separately contracted for an additional one and one-half days of flight training. Cirrus, in turn, contracted with appellant University of North Dakota Aerospace Foundation (UNDAF) to provide the transition training. The training materials included an "Initial Training Syllabus" that detailed the "Cirrus Factory Training Course." The syllabus describes five sessions of ground training and five flight lessons. The fifth flight lesson is the "Final Evaluation Flight." Each flight lesson enumerates several maneuvers that are included within the lesson. There are four short, blank lines before each

enumerated maneuver; the lines correspond with columns labeled as "U" (unsatisfactory), "M" (marginal), "S" (satisfactory), and "E" (excellent), which reflect the applicable grading system for the training course. These lines provide a location for the instructor to rate the pilots performance on each maneuver. The following language is included above the maneuvers in each flight lesson: "Skipped items should be left unchecked." The syllabus also states that

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A maneuver in which a U or M grade is posted may be discontinued and remain incomplete at the Instructors discretion. However, ALL maneuvers on the Final Evaluation Flight must be completed with a grade of S or E for a Completion Certificate to be awarded. Additionally, all ground school lessons and required worksheets must be accurately completed for a Completion Certificate to be awarded. Prokop took delivery of his SR22 on December 9, 2002, and participated in Cirruss transitional training program from December 9 to 12. Prokops training

consisted of five flights, totaling 12.5 hours of flight training, and 5.3 hours of ground instruction. Prokops syllabus indicates that he completed the Final Evaluation Flight with a satisfactory grade and was awarded a certificate of completion and a highperformance endorsement, which was "Valid in Cirrus SR-22 only." Prokop signed the evaluation, indicating that he had "reviewed and accept[ed] the above evaluation." On the morning of January 18, 2003, Prokop and Kosak intended to fly in the SR22 from Grand Rapids to St. Cloud to attend their sons hockey tournament. Prokop called FAA weather briefers twice that morning. At 4:56 a.m., Prokop was informed of some low clouds. Prokop called again at 5:41 and was informed of "marginal"

conditions around Grand Rapids and that the sky was partially obscured with clouds. He told the briefer that he "was hoping to slide underneath it and then climb out." Based on the available weather reports, Prokop was "legal to fly," that is, he was cleared to fly based on his VFR license and the available weather reports. Prokop and Kosak departed from the Grand Rapids airport at approximately 6:30 a.m. Minutes later, the aircraft struck the ground, killing both men. Expert trial

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testimony suggested that Prokop encountered "IMC-like" conditions and that the aircraft entered an "accelerated stall" and crashed when Prokop tried to exit the conditions. The trustee for Kosaks next of kin sued Cirrus and respondent Estate of Gary Prokop. The complaint claims that Cirrus undertook a duty to provide Prokop with flight training, that Cirrus breached an implied warranty of merchantability by omitting a flight lesson regarding recovery from VFR into IMC conditions, and that Prokop was negligent in piloting the aircraft. The trustee for Prokops next of kin also sued Cirrus, claiming that Cirrus was negligent in the "designing, testing, manufacturing, sale, distribution, maintenance, warnings, pilot training, and instructions given regarding the aircraft." Cirrus removed the cases to federal court, but the cases were remanded to state court for lack of a federal issue. Glorvigen v. Cirrus Design Corp. and Gartland v. Cirrus Design Corp., Nos. 05-2137 and 05-2138, 2006 WL 399419, at *6 (D. Minn. Feb. 16, 2006). Cirrus then brought a third-party action against employees of the FAA. The FAA removed the case to federal court, and Cirrus moved for summary judgment. The federal district court granted partial summary judgment to Cirrus on Prokops next of kins warranty and strict-product-liability claims against Cirrus. Glorvigen v. Cirrus Design Corp., No. 06-2661, 2008 WL 398814, at *7 (D. Minn. Feb. 11, 2008). The FAA also moved for summary judgment, and the federal district court granted the motion, determining that FAA specialists had breached no duty as a matter of law. See Glorvigen v. Cirrus Design Corp., No. 06-2661 (D. Minn. June 24, 2008) (order op). The federal district court again remanded the case to state court. Id. Later, the state district court granted UNDAFs motion to intervene as a defendant. 9

The case was tried to a jury. The trial focused on whether Cirrus and UNDAF provided adequate training regarding autopilot-assisted recovery when a pilot encounters IMC conditions. The UNDAF instructor who trained Prokop, Yu Weng Shipek, testified that the SR22 autopilot is like a motor vehicles cruise control: its "heading bug" helps the pilot fly a certain direction. Shipek also testified that the autopilot "altitude hold button" would hold the aircrafts cruising altitude. John Wahlberg, UNDAFs site

manager at the Cirrus Factory Training Center, testified that the autopilot is a device that assists pilots with basic maneuvers, including a VFR pilots procedure for escaping IMC conditions. Wahlberg testified that a VFR pilot escapes IMC conditions by making a 180-degree turn and that "the autopilot just makes that easier." The evidence showed that Cirrus provided Prokop with both written instructions and ancillary transition training regarding how to use the autopilot. The written

instructions included the Pilots Operating Handbook and the autopilot supplement, described above. The transition training included an SR22 training manual, two hours of ground instruction entitled "VFR into IMC Procedures SR20/22," and a PowerPoint presentation, all of which explained how to use the autopilot. Autopilot instruction was also included in the "pre-training packet" Prokop was expected to have reviewed prior to attending the training. Finally, Prokop received a grade of satisfactory on flight lesson maneuvers entitled "Intro to Autopilot operation" and "Autopilot operations." But respondents presented evidence that appellants failed to provide Prokop with a flight lesson described in the syllabus as "Flight 4a." This lesson includes a maneuver entitled "Recovery from VFR into IMC ([autopilot] assisted)." None of the rating lines 10

next to this maneuver, or any of the other maneuvers included in Flight 4a, were marked on Prokops syllabus, indicating that the flight lesson was not provided. Flight-instructor Shipek testified that he provided Prokop with the flight lesson, even though the syllabus advisory clearly states, above the maneuvers, that "[s]kipped items should be left unchecked." With regard to the crash, respondents presented evidence that Prokop departed Grand Rapids in marginal weather conditions and may have become spatially disoriented. Expert witness James Walters testified that, based on his analysis of weather data and witness statements, he concluded that Prokop inadvertently entered "IMC-like" conditions near Hill City and decided to return to Grand Rapids. Based on his wreckage analysis, altitude data, and National Transportation Safety Board reports, Walters concluded that the aircraft entered "an accelerated stall" and crashed. Walters explained that Prokop tried to manually turn the plane sharply, unexpectedly descended, tried to pull up at high speed, stalled and crashed. Walters identified three "root causes" of the crash: (1) Prokop "made a poor decision to go flying that day"; (2) Prokop lacked "tools" to appropriately assess aeronautical risks; and (3) Prokop lacked "the proper tools to be able to recover" from inadvertently encountering IMC-like conditions. Walters testified that "Had Mr. Prokop been adequately trained in the use of the autopilot, I believe that he would have been able to recover from this situation by using the autopilot and the crash would not have occurred." Walters explained Well, an autopilot will do a lot of good things for the pilot of an aircraft depending on the capabilities of that particular autopilot and this one is a very good one. In its most basic 11

form, it will keep the wings level. It will also maintain a heading across the ground and it will maintain altitude if its all programmed properly to do that. But Walters agreed that a VFR-rated pilot, like Prokop, is trained "to fly wings level and to start a turn, 180-degree turn to get out of the situation" when inadvertently entering IMC conditions--with or without an autopilot. Walters also agreed that Prokop would have been required to demonstrate proficiency on this procedure, without using an autopilot, to receive his current pilots license. Prokops regular flight instructor, Steven Day, testified he believed that Prokop was proficient with the procedure a VFR-rated pilot uses to escape IMC conditions. But Day also testified that Prokops prior training in his Cessna would not be sufficient for the SR22. At the close of the plaintiffs case in chief, Cirrus and UNDAF each moved for JMOL on several grounds. They argued that they did not owe Prokop and Kosak a legal duty because the negligence claims were barred under the educational-malpractice doctrine and that there was insufficient nonspeculative evidence that lack of training caused the crash. The district court denied the motions. The jury returned a special verdict finding Cirrus, UNDAF, and Prokop negligent and allocating fault as follows: Cirrus 37.5%, UNDAF 37.5%, and Estate of Gary Prokop 25%. The jury awarded damages of $7,400,000 to Kosaks next of kin and $12,000,000 to Prokops next of kin. Cirrus renewed its motion for JMOL posttrial, arguing that the negligence claims against Cirrus were barred under the educational-malpractice doctrine and that there was insufficient evidence that Cirruss acts or omissions proximately caused the deaths of 12

Prokop and Kosak. Cirrus also moved for a new trial, arguing that the verdict was not justified by the evidence and that the district court failed to provide an appropriate curative instruction in response to "improper and inflammatory comments by [plaintiffs counsel] in closing argument." UNDAF also renewed its motion for JMOL.

Additionally, UNDAF moved for JMOL on the ground that the estates of Prokop and Kosak cannot take judgment against UNDAF because they never directly sued UNDAF. Finally, UNDAF moved for a new trial claiming that it was prejudiced by errors of law as to the jury instructions and improper statements of counsel during closing argument. The district court denied appellants motions for JMOL and motions for a new trial, rejecting the argument that the negligence claims were barred as a matter of law under the educational-malpractice doctrine. The district court entered judgment against Cirrus and UNDAF, and this consolidated appeal follows. ISSUES I. Does an airplane manufacturers duty to warn by providing adequate instructions for the safe use of its aircraft include a duty to provide pilot training? II. Are negligence claims against an aviation-training provider barred under the educational-malpractice doctrine where the essence of the claims is that the provider failed to provide an effective education? ANALYSIS Appellants raise several arguments in support of reversal. Cirrus argues that the negligence claims sound in educational malpractice and are therefore barred as a matter

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of law; "the [district] court improperly created a new cause of action for negligent performance of contract that merges contract and tort duties and redefines negligence to exclude reasonable care"; the evidence of causation is legally insufficient; and "the egregious and improper comments of [counsel for the trustee for Prokops next of kin] in closing argument unfairly prejudiced Cirrus." UNDAF argues that the negligence claims sound in educational malpractice and are therefore barred as a matter of law; the district courts creation of a legal duty for "negligent performance" of a contract is not supported by Minnesota law; the evidence does not establish, beyond speculation, that lack of training caused the crash; and UNDAF cannot be held directly liable to either the next of kin of Prokop or Kosak because neither sued UNDAF. We begin with app ellants principal arguments that they did not owe Prokop and Kosak a duty as a matter of law, which relate to the district courts denial of their motions for JMOL. I. "We apply de novo review to the district courts denial of a Rule 50 motion [for JMOL]." Bahr v. Boise Cascade Corp., 766 N.W.2d 910, 919 (Minn. 2009). JMOL should be granted only in those unequivocal cases where (1) in the light of the evidence as a whole, it would clearly be the duty of the [district] court to set aside a contrary verdict as being manifestly against the entire evidence, or where (2) it would be contrary to the law applicable to the case. Jerry's Enters., Inc., v. Larkin, Hoffman, Daly & Lindgren, Ltd., 711 N.W.2d 811, 816 (Minn. 2006) (quotation omitted).

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"The basic elements of a negligence claim are: (1) existence of a duty of care; (2) breach of that duty; (3) proximate causation; and (4) injury." Bjerke v. Johnson, 742 N.W.2d 660, 664 (Minn. 2007). A district court errs by submitting a negligence claim to a jury when no duty exists. See ServiceMaster of St. Cloud v. GAB Bus. Servs., Inc., 544 N.W.2d 302, 308 (Minn. 1996) (concluding that "the [district] court erred in submitting plaintiffs negligence claim to the jury because ServiceMaster failed to establish that Sentry owed it a duty"); Balder v. Haley, 399 N.W.2d 77, 81 (Minn. 1987) (stating that the district court erred by allowing the existence of a duty to go to the jury). "[T]he existence of a duty . . . is a legal question to be determined by the judge, not the jury." Balder, 399 N.W.2d at 81. On appeal, the existence of a duty is a question of law subject to de novo review. Bjerke, 742 N.W.2d at 664. Respondents contend that appellants owed Prokop and Kosak a duty under common law, based on a product-liability theory, to wit: the duty to warn of dangers inherent in the use of a product by providing adequate instructions. Appellants counter that respondents are inappropriately attempting to "retroactively characterize their claims as product liability negligence claims." Appellants argue that respondents did not plead or try a product-liability case, the district court did not treat the claims as product-liability claims, and the federal district courts award of summary judgment on Prokops next of kins strict-liability failure-to-instruct claim forecloses as a matter of law "any" negligent

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failure-to-instruct claim.3

Because respondents product-liability theory fails on the

merits, we do not address appellants procedural challenges. "In general, a supplier has a duty to warn end users of a dangerous product if it is reasonably foreseeable that an injury could occur in its use." Gray v. Badger Mining Corp., 676 N.W.2d 268, 274 (Minn. 2004). The duty to warn includes providing

adequate instructions for the safe use of the product. Id. "[W]here the manufacturer or the seller of a product has actual or constructive knowledge of danger to users, the seller or manufacturer has a duty to give warning of such dangers." Frey v. Montgomery Ward & Co., 258 N.W.2d 782, 788 (Minn. 1977). "To be legally adequate, the warning should (1) attract the attention of those that the product could harm; (2) explain the mechanism and mode of injury; and (3) provide instructions on ways to safely use the product to avoid injury." Gray, 676 N.W.2d at 274. The adequacy of a warning must be evaluated in light of the knowledge and expertise of those who may be reasonably expected to use the product. Dahlbeck v. DICO Co., 355 N.W.2d 157, 163 (Minn. App. 1984), review denied (Minn. Feb. 6, 1985). The Minnesota Supreme Court has endorsed the broad statement of principles contained in the Restatement (Second) of Torts

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