Minn. Stat. § 604.01

Senogles v. Carlson · 2017 2 citations

+ 2 more citations in this opinion.

State of Minnesota v. Brandon Wayne Riggs · 2015 2 citations

+ 2 more citations in this opinion.

Alice Ann Staab v. Diocese of St. Cloud · 2014 3 citations [Dissent]

+ 3 more citations in this opinion.

Moorhead Economic Development Authority v. Anda · 2010 7 citations

+ 7 more citations in this opinion.

Osborne v. Twin Town Bowl, Inc. · 2008 2 citations

+ 2 more citations in this opinion.

Bjerke v. Johnson · 2007 1 citation

+ 1 more citation in this opinion.

Farmer's State Bank of Darwin v. Swisher · 2001 2 citations

+ 2 more citations in this opinion.

Sandborg v. Blue Earth County · 2000 1 citation

+ 1 more citation in this opinion.

K.R. v. Sanford · 2000 4 citations

+ 4 more citations in this opinion.

Independent School District No. 622 v. Keene Corp. · 1994 4 citations

Keene argues that it was error under Minn. Stat. § 604.01, subd. 1 (1990), for the trial court to refuse to include questions on the special verdict form concerning ISC’s, Bor-Son’s, Corwin’s, and Johns-Manville’s comparative fault after it properly requested the trial court to do so.

Keene argues that it was error under Minn. Stat. § 604.01, subd. 1 (1990), for the trial court to refuse to include questions on the special verdict form concerning ISC’s, Bor-Son’s, Corwin’s, and Johns-Manville’s comparative fault after it properly requested the trial court to do so.

Keene argues that it was error under Minn. Stat. § 604.01, subd. 1 (1990), for the trial court to refuse to include questions on the special verdict form concerning ISC’s, Bor-Son’s, Corwin’s, and Johns-Manville’s comparative fault after it properly requested the trial court to do so.

+ 1 more citation in this opinion.

Halla Nursery, Inc. v. Baumann-Furrie & Co. · 1990 2 citations

+ 2 more citations in this opinion.

Tomfohr v. Mayo Foundation · 1990 3 citations

+ 3 more citations in this opinion.

Rambaum v. Swisher · 1989 2 citations

+ 2 more citations in this opinion.

Florenzano v. Olson · 1986 8 citations

+ 8 more citations in this opinion.

Herrly v. Muzik · 1985 6 citations

COYNE, Justice. Petitioners-defendants, liquor vendors and their owners, seek further review of a decision of the Court of Appeals reversing the summary judgment entered in their favor by the trial court. The Court of Appeals held that the 1977 amendment to the Civil Damage Act, Minn. Stat. § 340.95, altered prior law by making “complicity” a fault to be compared with that of others, rather than an absolute bar to recovery in a Dram Shop action. We reverse. The plaintiff Kenneth Herrly was severely injured on April 18, 1981 while a passenger in a truck driven by Steven Muzik, when the latter lost control of the vehicle and it crashed into an embankment. Muzik was intoxicated at the time and Herrly sought recovery from the three bars in which he and Muzik were served liquor prior to the accident. The bar owners moved for summary judgment, asserting that since Herrly admitted buying drinks for Muzik as well as purchasing off-sale beer which both he and Muzik consumed while traveling between bars, Herrly had contributed to Muzik’s intoxication and was barred by this complicity from recovering damages under section 340.95. The trial court agreed and granted their motion for summary judgment. On appeal, the Court of Appeals reversed that decision based upon its view of the 1977 amendment to section 340.95. Herrly v. Muzik, 355 N.W.2d 452 (Minn.App.1984). The sole issue presented is whether complicity remains an absolute bar to recovery in Dram Shop actions after the incorporation of Minn. Stat. § 604.01 (1984) into the Civil Damage Act. No cause of action existed at common law against a vendor for damages sustained as a result of an illegal sale of *277liquor. Robinson v. Lamott, 289 N.W.2d 60 (Minn.1979). Since the Civil Damage Act provides the exclusive remedy for the sale of intoxicating liquor, id., 289 N.W.2d at 65, the defendant bars are liable to Herrly only if he is entitled to commence an action against them under the Act,1 which creates this cause of action: Every husband, wife, child, parent, guardian, employer, or other person who is injured in person or property, or means of support, by any intoxicated person, or by the intoxication of any person, has a right of action, in his own name, against any person who, by illegally selling or bartering intoxicating liquors, caused the intoxication of such person, for all damages, sustained * * *. (Emphasis added). Minn. Stat. § 840.95 (1980). Minn. Stat. § 340.73 (1980) describes those “sales” which are illegal as follows: Subdivision 1. It shall be unlawful for any person, except a licensed pharmacist to sell, give, barter, furnish, deliver, or dispose of, in any manner, either directly or indirectly, any spirituous, vinous, malt, or fermented liquors in any quantity, for any purpose, whatever, to any person under the age of 19 years, or to any intoxicated person, or to any public prostitute. * * * * * * Subd. 3. Whoever shall in any way procure liquor for the use of any person named in this section shall be deemed to have sold it to such person. Any person violating any of the provisions of this section is guilty of a gross misdemeanor. Herrly contends that because the defendant liquor vendors illegally sold liquor to Muzik, he, as an “other person” under section 340.95 may recover damages from them. The vendors argue that Herrly is barred from recovery because he actively participated in furnishing alcohol to Muzik: If the vendors’ conduct was illegal, so also was Herrly’s. Prior to the 1977 amendment to section 340.95, it was clear that the latter argument would have prevailed. Turk v. Long Branch Saloon, 280 Minn. 438, 159 N.W.2d 903 (1968). In Turk, we first recognized what is commonly known as the complicity defense and denied recovery to a plaintiff who had purchased liquor for the driver of the automobile in which he was injured. After examining prior decisions involving the Civil Damage Act, we concluded, that— the protection to the public afforded by § 340.95 was not intended by the legislature to be extended to persons who participate knowingly and affirmatively in the illegal sale, bartering, or gift of the intoxicating liquor. To hold otherwise, we believe, would be to permit one who has been an intentional accessory to the illegality to shift the loss resulting from it to a person no more responsible for the damage than he himself has been. So considered, the case is different from that of the party who suffers loss at the hands of a person with whose intoxication he had no involvement and where we say in effect that Minnesota’s policy against supplying liquor illegally is so strong that recovery will be allowed even though the damaged person, in respects unrelated to the intoxication, may have failed to exercise reasonable care for his own safety. The person asserting the right of action in such a situation has had nothing to do with the illegal furnishing of the liquor. In contrast, a person who buys drinks for an obviously intoxicated person, or one whom he knows to be a minor, is at least as much the cause of the resulting or continued intoxication as the bartender who served the consumer illegally. Finally, having declared that the person who becomes intoxicated as a result of illegal sale, barter, or gift cannot recover, how can we reasonably attribute to the legislature an intent to *278allow recovery to the participating accessory who, in some cases at least, may be as much or more responsible for the violation of the liquor laws than the one who consumes the intoxicant? Id. at 442, 159 N.W.2d at 906 (footnote omitted). In 1977, the legislature added the following pertinent language to section 340.95: Actions for damages based upon liability imposed by this section shall be governed by section 604.01. The provisions of section 604.01, as applied under this section, however shall not be applicable to actions brought by a husband, wife, child, parent, guardian or other dependent of an intoxicated person. Act of June 2, 1977, ch. 390, § 1, 1977 Minn.Laws 887. Section 604.01, at the time of this amendment, was a comparative negligence statute which provided, in part, that: Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not as great as the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributable to the person recovering. Minn. Stat. § 604.01, subd. 1 (1976). By amendment effective April 15,1978, section 604.01 became a comparative fault statute. Act of April 5, 1978, ch. 738, §§ 6, 7, 1978 Minn.Laws 836, 839-40. Examining the effect of these several changes, the Court of Appeals concluded that complicity is no longer an absolute defense in a Dram Shop action, but rather fault to be compared with the fault of those others — i.e., the bars — that illegally furnished the liquor. We cannot agree. Herrly, in essence, would have us believe the 1977 amendment was intended to overturn our decisions in Martinson v. Monticello Municipal Liquors, 297 Minn. 48, 209 N.W.2d 902 (1973), Heveron v. Village of Belgrade, 288 Minn. 395, 181 N.W.2d 692 (1970) and Turk v. Long Branch Saloon, 280 Minn. 438, 159 N.W.2d 903 (1968). Had that been the legislature’s intent, we suspect it would have had no difficulty in making that intention clear. We have long viewed the Civil Damage Act as both remedial and penal in nature. Hahn v. City of Ortonville, 238 Minn. 428, 436, 57 N.W.2d 254, 261 (1953). When its provisions have been clear as to intent and purpose, we have liberally construed the act “so as to suppress the mischief and advance the remedy.” Id. However, as we observed in Beck v. Groe, 245 Minn. 28, 34, 70 N.W.2d 886, 891 (1955), such liberal construction is not without limitation: “Since a civil damage law is one highly penal in its nature introducing a remedy unknown to the common law, it is to be strictly construed in the sense that it cannot be enlarged beyond its definite scope_” (Emphasis added). Our repeated view that the Civil Damage Act was intended solely to protect “innocent third persons ” 2 injured as a result of another’s intoxication cannot have escaped the legislature’s attention. Randall v. Village of Excelsior, 258 Minn. 81, 83, 103 N.W.2d 131, 133 (1960). Common sense thus leads us to conclude that had the legislature intended to enlarge the class of beneficiaries under the Act and overturn Turk, Heveron and Martinson, different language would have been employed in the amendment. Cf Minn. Stat. § 645.17, subd. 4 (1984). In Pautz v. Cal-Ros, Inc., 340 N.W.2d 338 (Minn.1983), we considered what we regard as the twin objectives of the 1977 amendment to section 340.95. First, the method of apportionment of liability imposed on those who illegally furnish liquor was altered. Id. at 341-42. Before the amendment, wrongdoers shared *279liability on an aliquot basis. The amendment required liability to be divided in proportion to each party’s “negligence.”3 Secondly, the amendment directed that the negligence of certain claimants would proportionately diminish their recovery — a reversal of the former rule that an innocent third person’s negligence would not affect an award under section 340.95. See Turk, 280 Minn, at 442, 159 N.W.2d at 906. In light of more recent legislation, we cannot help but attach some significance to the fact that the effect of the second objective of the 1977 amendment was to reduce the liability of liquor vendors under the Civil Damage Act. Although subsequent legislative history as a source for divining earlier intent must be employed with caution,4 we cannot blind ourselves to the legislature’s concern over the rising cost and reduced availability of dram shop insurance and the resultant 1985 amendments to section 340.95, which significantly lessen potential recoveries. See Act of June 7,1985, ch. 309, §§ 7-13. Adopting Herrly’s view of the 1977 amendment, however, would increase liability — a result at odds with the second objective of the 1977 amendment and a consequence we do not believe was intended. It seems to us as anomalous today as it did when we decided Turk that the legislature would deny a remedy to a person injured by his own intoxication and grant a participating accessory to the violation of the liquor laws a remedy for injuries to which the intoxication of his drinking companion contributed, and nothing in the 1977 amendment suggests that the legislature intended to create a new cause of action for the benefit of persons not previously within the class of persons protected by the statute. Moreover, most jurisdictions with Civil Damage Acts similar to ours do not allow one who buys liquor for the person whose intoxication causes their injury to recover damages from the liquor vendor. See Annot., 26 A.L.R.3d 1112, 1117 (1969). The decision of the Court of Appeals is reversed and the judgment entered in the trial court is reinstated. Reversed. SCOTT and YETKA, JJ., dissent. SIMONETT, J., took no part in the consideration and decision of this case.

COYNE, Justice. Petitioners-defendants, liquor vendors and their owners, seek further review of a decision of the Court of Appeals reversing the summary judgment entered in their favor by the trial court. The Court of Appeals held that the 1977 amendment to the Civil Damage Act, Minn. Stat. § 340.95, altered prior law by making “complicity” a fault to be compared with that of others, rather than an absolute bar to recovery in a Dram Shop action. We reverse. The plaintiff Kenneth Herrly was severely injured on April 18, 1981 while a passenger in a truck driven by Steven Muzik, when the latter lost control of the vehicle and it crashed into an embankment. Muzik was intoxicated at the time and Herrly sought recovery from the three bars in which he and Muzik were served liquor prior to the accident. The bar owners moved for summary judgment, asserting that since Herrly admitted buying drinks for Muzik as well as purchasing off-sale beer which both he and Muzik consumed while traveling between bars, Herrly had contributed to Muzik’s intoxication and was barred by this complicity from recovering damages under section 340.95. The trial court agreed and granted their motion for summary judgment. On appeal, the Court of Appeals reversed that decision based upon its view of the 1977 amendment to section 340.95. Herrly v. Muzik, 355 N.W.2d 452 (Minn.App.1984). The sole issue presented is whether complicity remains an absolute bar to recovery in Dram Shop actions after the incorporation of Minn. Stat. § 604.01 (1984) into the Civil Damage Act. No cause of action existed at common law against a vendor for damages sustained as a result of an illegal sale of *277liquor. Robinson v. Lamott, 289 N.W.2d 60 (Minn.1979). Since the Civil Damage Act provides the exclusive remedy for the sale of intoxicating liquor, id., 289 N.W.2d at 65, the defendant bars are liable to Herrly only if he is entitled to commence an action against them under the Act,1 which creates this cause of action: Every husband, wife, child, parent, guardian, employer, or other person who is injured in person or property, or means of support, by any intoxicated person, or by the intoxication of any person, has a right of action, in his own name, against any person who, by illegally selling or bartering intoxicating liquors, caused the intoxication of such person, for all damages, sustained * * *. (Emphasis added). Minn. Stat. § 840.95 (1980). Minn. Stat. § 340.73 (1980) describes those “sales” which are illegal as follows: Subdivision 1. It shall be unlawful for any person, except a licensed pharmacist to sell, give, barter, furnish, deliver, or dispose of, in any manner, either directly or indirectly, any spirituous, vinous, malt, or fermented liquors in any quantity, for any purpose, whatever, to any person under the age of 19 years, or to any intoxicated person, or to any public prostitute. * * * * * * Subd. 3. Whoever shall in any way procure liquor for the use of any person named in this section shall be deemed to have sold it to such person. Any person violating any of the provisions of this section is guilty of a gross misdemeanor. Herrly contends that because the defendant liquor vendors illegally sold liquor to Muzik, he, as an “other person” under section 340.95 may recover damages from them. The vendors argue that Herrly is barred from recovery because he actively participated in furnishing alcohol to Muzik: If the vendors’ conduct was illegal, so also was Herrly’s. Prior to the 1977 amendment to section 340.95, it was clear that the latter argument would have prevailed. Turk v. Long Branch Saloon, 280 Minn. 438, 159 N.W.2d 903 (1968). In Turk, we first recognized what is commonly known as the complicity defense and denied recovery to a plaintiff who had purchased liquor for the driver of the automobile in which he was injured. After examining prior decisions involving the Civil Damage Act, we concluded, that— the protection to the public afforded by § 340.95 was not intended by the legislature to be extended to persons who participate knowingly and affirmatively in the illegal sale, bartering, or gift of the intoxicating liquor. To hold otherwise, we believe, would be to permit one who has been an intentional accessory to the illegality to shift the loss resulting from it to a person no more responsible for the damage than he himself has been. So considered, the case is different from that of the party who suffers loss at the hands of a person with whose intoxication he had no involvement and where we say in effect that Minnesota’s policy against supplying liquor illegally is so strong that recovery will be allowed even though the damaged person, in respects unrelated to the intoxication, may have failed to exercise reasonable care for his own safety. The person asserting the right of action in such a situation has had nothing to do with the illegal furnishing of the liquor. In contrast, a person who buys drinks for an obviously intoxicated person, or one whom he knows to be a minor, is at least as much the cause of the resulting or continued intoxication as the bartender who served the consumer illegally. Finally, having declared that the person who becomes intoxicated as a result of illegal sale, barter, or gift cannot recover, how can we reasonably attribute to the legislature an intent to *278allow recovery to the participating accessory who, in some cases at least, may be as much or more responsible for the violation of the liquor laws than the one who consumes the intoxicant? Id. at 442, 159 N.W.2d at 906 (footnote omitted). In 1977, the legislature added the following pertinent language to section 340.95: Actions for damages based upon liability imposed by this section shall be governed by section 604.01. The provisions of section 604.01, as applied under this section, however shall not be applicable to actions brought by a husband, wife, child, parent, guardian or other dependent of an intoxicated person. Act of June 2, 1977, ch. 390, § 1, 1977 Minn.Laws 887. Section 604.01, at the time of this amendment, was a comparative negligence statute which provided, in part, that: Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not as great as the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributable to the person recovering. Minn. Stat. § 604.01, subd. 1 (1976). By amendment effective April 15,1978, section 604.01 became a comparative fault statute. Act of April 5, 1978, ch. 738, §§ 6, 7, 1978 Minn.Laws 836, 839-40. Examining the effect of these several changes, the Court of Appeals concluded that complicity is no longer an absolute defense in a Dram Shop action, but rather fault to be compared with the fault of those others — i.e., the bars — that illegally furnished the liquor. We cannot agree. Herrly, in essence, would have us believe the 1977 amendment was intended to overturn our decisions in Martinson v. Monticello Municipal Liquors, 297 Minn. 48, 209 N.W.2d 902 (1973), Heveron v. Village of Belgrade, 288 Minn. 395, 181 N.W.2d 692 (1970) and Turk v. Long Branch Saloon, 280 Minn. 438, 159 N.W.2d 903 (1968). Had that been the legislature’s intent, we suspect it would have had no difficulty in making that intention clear. We have long viewed the Civil Damage Act as both remedial and penal in nature. Hahn v. City of Ortonville, 238 Minn. 428, 436, 57 N.W.2d 254, 261 (1953). When its provisions have been clear as to intent and purpose, we have liberally construed the act “so as to suppress the mischief and advance the remedy.” Id. However, as we observed in Beck v. Groe, 245 Minn. 28, 34, 70 N.W.2d 886, 891 (1955), such liberal construction is not without limitation: “Since a civil damage law is one highly penal in its nature introducing a remedy unknown to the common law, it is to be strictly construed in the sense that it cannot be enlarged beyond its definite scope_” (Emphasis added). Our repeated view that the Civil Damage Act was intended solely to protect “innocent third persons ” 2 injured as a result of another’s intoxication cannot have escaped the legislature’s attention. Randall v. Village of Excelsior, 258 Minn. 81, 83, 103 N.W.2d 131, 133 (1960). Common sense thus leads us to conclude that had the legislature intended to enlarge the class of beneficiaries under the Act and overturn Turk, Heveron and Martinson, different language would have been employed in the amendment. Cf Minn. Stat. § 645.17, subd. 4 (1984). In Pautz v. Cal-Ros, Inc., 340 N.W.2d 338 (Minn.1983), we considered what we regard as the twin objectives of the 1977 amendment to section 340.95. First, the method of apportionment of liability imposed on those who illegally furnish liquor was altered. Id. at 341-42. Before the amendment, wrongdoers shared *279liability on an aliquot basis. The amendment required liability to be divided in proportion to each party’s “negligence.”3 Secondly, the amendment directed that the negligence of certain claimants would proportionately diminish their recovery — a reversal of the former rule that an innocent third person’s negligence would not affect an award under section 340.95. See Turk, 280 Minn, at 442, 159 N.W.2d at 906. In light of more recent legislation, we cannot help but attach some significance to the fact that the effect of the second objective of the 1977 amendment was to reduce the liability of liquor vendors under the Civil Damage Act. Although subsequent legislative history as a source for divining earlier intent must be employed with caution,4 we cannot blind ourselves to the legislature’s concern over the rising cost and reduced availability of dram shop insurance and the resultant 1985 amendments to section 340.95, which significantly lessen potential recoveries. See Act of June 7,1985, ch. 309, §§ 7-13. Adopting Herrly’s view of the 1977 amendment, however, would increase liability — a result at odds with the second objective of the 1977 amendment and a consequence we do not believe was intended. It seems to us as anomalous today as it did when we decided Turk that the legislature would deny a remedy to a person injured by his own intoxication and grant a participating accessory to the violation of the liquor laws a remedy for injuries to which the intoxication of his drinking companion contributed, and nothing in the 1977 amendment suggests that the legislature intended to create a new cause of action for the benefit of persons not previously within the class of persons protected by the statute. Moreover, most jurisdictions with Civil Damage Acts similar to ours do not allow one who buys liquor for the person whose intoxication causes their injury to recover damages from the liquor vendor. See Annot., 26 A.L.R.3d 1112, 1117 (1969). The decision of the Court of Appeals is reversed and the judgment entered in the trial court is reinstated. Reversed. SCOTT and YETKA, JJ., dissent. SIMONETT, J., took no part in the consideration and decision of this case.

SCOTT, Justice (dissenting). I respectfully dissent. In 1969, Minnesota first modified the common-law doctrine of contributory negligence by the adoption of comparative negligence, Act of May 23,1969, ch. 624, § 1,1969 Minn.Laws 1069 (codified as Minn. Stat. § 604.01 (1969)). The pertinent part of section 604.-01 provided: COMPARATIVE NEGLIGENCE; EFFECT. Subdivision 1. Scope of application. Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not as great as the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributable to the person recovering. Then, in 1977, the Civil Damage Act, commonly known as the Dram Shop Act, incorporated comparative negligence by amendment, adding the following language: “Actions for damages based upon liability imposed by this section shall be governed by section 604.01.” Act of June 2, 1977, ch. 390, § 1, 1977 Minn.Laws 887. Section *280604.01 was later amended and now encompasses the notion of “comparative fault.” Act of April 5, 1978, ch. 738, § 6, 1978 Minn.Laws 836. We have continually held that this “dram shop” field is preempted by the Civil Damage Act. Holmquist v. Miller, 367 N.W.2d 468 (Minn.1985); Meany v. Newell, 367 N.W.2d 472 (Minn.1985). The Court of Appeals held that, given the changes in contributory negligence and the inclusion of section 604.01 into the Civil Damage Act, the legislature intended that complicity should be fault, to be compared with the bar owner’s “fault” of serving alcohol, just as the advent of comparative negligence consumed assumption of risk. Prior to 1977, judicially created law allowed complicity to operate as a bar to recovery. Martinson v. Monticello Municipal Liquors, 297 Minn. 48, 209 N.W.2d 902 (1973); Heveron v. Village of Belgrade, 288 Minn. 395, 181 N.W.2d 692 (1970); Turk v. Long Branch Saloon, 280 Minn. 438, 159 N.W.2d 903 (1968). It is not surprising, and it must be presumed, that the legislature clearly intended to preempt the field and eliminate this judicial concept as a bar, just as it did in eliminating contributory negligence and secondary assumption of risk as a bar in the tort field. The majority’s retention of the complicity doctrine as a complete bar to claims under the Civil Damage Act perpetuates arbitrary distinctions among parties suing under the Act. The majority would bar the injured party from commencing a suit under the Act even though his only contribution to the intoxication of his companion was the purchase of one drink. Yet in Hempstead v. Minneapolis Sheraton Corp., 283 Minn. 1, 166 N.W.2d 95 (1969), we held that a person who had accompanied the intoxicated person all evening, and who knew the person was a minor but did not disclose this fact to the liquor establishments, was not barred from recovering under the Civil Damage Act for injuries sustained as a result of that intoxicated person’s conduct because she did not purchase, procure for, or participate in the illegal sale of liquor to her companion. It is arbitrary to distinguish between a person who buys one drink for a companion and a person who spends an entire evening with a person, knowing that that person is buying alcohol illegally. Application of comparative fault in these cases would result in a more equitable method for determining how much a person who has actively participated in the intoxication of another is at fault. Why we should ignore the active and progressive legislative reform in this area is difficult to understand. There is no reason to retain this outmoded and arbitrary judicial doctrine in Minnesota in light of the clear intent to move to a more complete comparative negligence policy in the tort field. I would discard this judicial construction and affirm the Court of Appeals.

+ 3 more citations in this opinion.

Kempa v. E.W. Coons Co. · 1985 3 citations

+ 3 more citations in this opinion.

Bilotta v. Kelley Co., Inc. · 1984 2 citations

+ 2 more citations in this opinion.

Horton Ex Rel. Horton v. Orbeth, Inc. · 1984 12 citations

*113COYNE, Justice. On July 22, 1977, John Horton was injured in a boating accident. Horton’s guardian ad litem brought an action on his behalf against appellants Orbeth, Inc., and Bradley Nelson, the owner and the operator, respectively, of the boat which struck Horton. Appellants instituted third-party proceedings against Horton’s two companions, respondents Timothy Johnson and David Melchert, seeking indemnity or contribution. The matter was tried to a jury, which determined by special verdict that Horton had sustained damages of $800,000 and apportioned causal negligence among the plaintiff, the defendants, and the third-party defendants in these percentages: John Horton 10% Bradley Nelson 74% Timothy Johnson 8% David Melchert 8% On September 4, 1980, the trial court ordered the entry of judgment awarding Horton damages of $720,000 against appellants Orbeth, Inc., and Bradley Nelson (for whose negligence Orbeth, Inc., is vicariously liable) and entry of judgment in favor of third-party defendants Johnson and Melc-hert. Subsequently, the main action was settled; the trial court approved the settlement in the amount of $600,000 on January 5, 1981. On September 2, 1981, the appellants moved for judgment against Johnson and Melchert on a theory of contribution among joint tortfeasors. That motion was denied, and judgment in favor of respondents Johnson and Melchert was finally entered on June 28, 1982. On appeal from that judgment the appellants contend that they have paid more than their proportionate share of the plaintiff’s damages and that, although the plaintiff had no viable claim against them, the respondents are co-tortfeasors from whom the appellants are entitled to exact contribution. We affirm. At the time of the accident which gave rise to these proceedings, actions involving negligence were governed by Minn. Stat. § 604.01 (1976). The effect of the comparative negligence of the parties on the claimant’s cause of action and on the apportionment of damages was set out at § 604.01, subd. 1: Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not as great as the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributable to the person recovering. The court may, and when requested by either party shall, direct the jury to find separate special verdicts determining the amount of damages and the percentage of negligence attributable to each party; and the court shall then reduce the amount of such damages in proportion to the amount of negligence attributable to the person recovering. When there are two or more persons who are jointly liable, contributions to awards shall be in proportion to the percentage of negligence attributable to each, provided, however, that each shall remain jointly and severally liable for the whole award.1 The statute provides in plain language for proportionate contribution among those who are “jointly liable” to the plaintiff and who are “jointly and severally liable for the entire award.” The statute makes no provision for contribution by one who is not jointly liable to the plaintiff. Here the jury found the plaintiff more negligent than ei*114ther respondent. Accordingly, had the plaintiff asserted claims against Johnson and Melehert in the main action, they would have been adjudged not liable to the plaintiff. Minn. Stat. § 604.01 (1976). See Marier v. Memorial Rescue Service, Inc., 296 Minn. 242, 246, 207 N.W.2d 706, 709 (1973). Since Nelson and Orbeth, Inc., are the only parties who are liable for the award, the statutory scheme of damage apportionment does not contemplate contribution by Johnson or Melehert. See Jack Frost, Inc. v. Engineered Building Components Company, Inc., 304 N.W.2d 346 (Minn.1981) (where one defendant was more negligent than the plaintiff and another defendant was less negligent than the plaintiff, the more negligent defendant was liable for the entire amount of the plaintiffs damages reduced only by the proportion of causal negligence attributable to the plaintiff). Nor does Minnesota’s time-honored common law of contribution justify the claim of the appellants for contribution from parties who are not liable to the injured party. “The very essence of the action of contribution is ‘common liability.’ ” American Automobile Ins. Co. v. Molling, 239 Minn. 74, 76, 57 N.W.2d 847, 849 (1953). “[I]t is joint liability, rather than joint or concurring negligence, which determines the right of contribution.” Spitzack v. Schumacher, 308 Minn. 143, 148, 241 N.W.2d 641, 645, n. 2 (1976) (emphasis in original). Although contribution is an equitable doctrine, the doctrine requires only that “persons under a common burden share that burden equitably.” Id. at 145, 241 N.W.2d at 643. In the present case the appellants and respondents are not under a common burden. The burden is that of the appellants alone. Even though the jury found the respondents negligent to some degree, neither was negligent to a degree sufficient to impose liability to the injured party. We have consistently refused to require a party to contribute to an award when the quality of his conduct did not justify imposing liability to the injured party. E.g., Hart v. Cessna Aircraft Co., 276 N.W.2d 166 (Minn.1979) (defendant airplane manufacturer not entitled to contribution from defendant pilot whose conduct was found not negligent in a prior action); Spitzack v. Schumacher, 308 Minn. 143, 241 N.W.2d 641 (1976) (liquor vendor denied contribution from a driver found less negligent than the intoxicated decedent in prior action). Of course, what constitutes “common liability” is not susceptible of a single precise definition. The concept, an element of the equitable remedy of contribution, is accorded some elasticity. Common liability does not depend solely on whether or not a plaintiff can enforce recovery against two or more defendants. We have held that certain technical defenses, defenses that do not go to the merits of the case, do not extinguish common liability even though they eliminate one defendant’s direct obligation to compensate the plaintiff. Jones v. Fisher, 309 N.W.2d 726, 729 (Minn.1981). In such instances it is a factor extrinsic to the tort itself {e.g., failure to provide statutory notice, covenant not to sue, personal immunity, or the running of the statute of limitations) by which liability is avoided. The acts or omissions of the excused defendant were otherwise sufficient to subject the defendant to liability. In the present case, however, the non-liability of respondents Johnson and Melehert is not the product of a technical defense — a jury has judged their conduct on the merits and found them less negligent than the plaintiff.2 In a long line of cases we have uniformly declined to allow contribution where there has been a valid determination on the merits that common liability (however flexible its definition) could never have existed. E.g., Spitzack v. Schumacher, 308 Minn. 143, 147-48, 241 N.W.2d 641, 644 (1976). Lambertson v. Cincinnati Corp., 312 Minn. 114, 257 N.W.2d 679 (1977), and its *115progeny do not stand as authority for the proposition that common liability is no longer relevant to the availability of contribution. Lambertson was injured in an industrial accident. Lambertson was negligent, but in a lesser degree than either the manufacturer of the offending equipment (25%) or Lambertson’s employer (60%). We permitted the manufacturer to recover “contribution” from the employer even though there was no common liability in tort: Under the exclusive remedy clause of the Workers’ Compensation Act the employer enjoyed a personal immunity from tort liability to his employee. Since, however, the employer was liable for the no-fault benefits fixed by the Workers’ Compensation Act, the manufacturer and the employer were each liable — albeit uncommonly — to Lambertson. In the sense, then, that both were liable to Lambertson, “common liability” did exist. Moreover, while Lambertson speaks in terms of contribution, the real impact of the decision was the limitation of a negligent employer’s right of subrogation. The Workers’ Compensation Act, while imposing on an employer liability to his injured employee for the benefits prescribed by the Act — without regard to the employer’s fault — also affords the employer a right to reimbursement from the proceeds of the employee’s action against a third-party tortfeasor — again without regard to the employer’s fault. Minn. Stat. § 176.061, subds. 5, 6 (1982). In Lambertson we ameliorated the manifest inequity of requiring a third-party tortfeasor not only to compensate the injured worker but also to indemnify the worker’s more negligent employer, by requiring the employer to “contribute” to the award. We held that although contribution was to be proportional to the employer’s negligence, it could not exceed the level of common liability. The employer was obligated to contribute only up to the amount of workers’ compensation benefits payable even though the employer’s fault-based share of the damages would have been greater. In short, contribution was merely a vehicle for offsetting a negligent employer’s right of subrogation. See also Johnson v. Raske Building Systems Inc., 276 N.W.2d 79 (Minn.1979). Nor did the recent extension of the Lambertson principle in Hudson v. Snyder Body, Inc., 326 N.W.2d 149 (Minn.1982), alter the basic requirement of common liability. In Hudson, as in Lambertson, we permitted contribution proportional to the employer’s negligence but limited to the amount of workers’ compensation benefits payable. In Hudson, unlike Lambertson, the employee could not have recovered damages in a tort action against his employer pursuant to the applicable comparative negligence statute. Nevertheless, Hudson’s employer and the third-party tortfeasors shared the same kind of “common liability” that Lambertson’s employer and the equipment manufacturer shared; and the effect of the decision in Hudson, like that in Lambertson, was to deny a negligent employer a right of reimbursement with respect to his statutory liability to the extent of the employer’s proportionate share of the fault. In the present case the respondents have no liability to the plaintiff either on the merits of the plaintiff’s common law cause of action or by reason of any statutorily imposed obligation. No species of common liability exists between appellants and respondents on which contribution can be based. The appellants justify their quest for contribution on the ground that it is “unfair” to require a party who was found 74% causally negligent to pay 90% of the damages sustained by the plaintiff. The respondents counter with the contention that it would be “unfair” to require a party to contribute to the payment of damages for which a jury has said he is not liable. Minn. Stat. § 604.01, subd. 1 (1982) provides (a) that the plaintiff cannot recover from one whose degree of fault is less than the plaintiff’s, and (b) that the damages shall be reduced only in proportion to the plaintiff’s fault. It would, perhaps, have been more consistent had the legislature decreed that the damages be reduced in proportion to the aggregate fault of the plaintiff and all less-at-fault parties, from' whom the *116plaintiff cannot recover, but that is not what the legislature did. Rather, it determined that any defendant who is liable shall be jointly and severally liable for the whole award (diminished only by the plaintiffs proportionate share of fault) and that those parties jointly liable shall each contribute in proportion to his fault. Minn. Stat. § 604.02, subd. 1 (1982). Thus, the legislature has created a modified comparative fault system which comprises liability and contribution.3 We have previously declined to engraft a pure comparative fault liability exception to that statute. Cam-bern v. Sioux Tools, Inc., 323 N.W.2d 795 (Minn.1982). We now decline to engraft a pure comparative fault contribution exception to the statutory system. Affirmed. SIMONETT, J., took no part in the consideration or decision of this case.

*113COYNE, Justice. On July 22, 1977, John Horton was injured in a boating accident. Horton’s guardian ad litem brought an action on his behalf against appellants Orbeth, Inc., and Bradley Nelson, the owner and the operator, respectively, of the boat which struck Horton. Appellants instituted third-party proceedings against Horton’s two companions, respondents Timothy Johnson and David Melchert, seeking indemnity or contribution. The matter was tried to a jury, which determined by special verdict that Horton had sustained damages of $800,000 and apportioned causal negligence among the plaintiff, the defendants, and the third-party defendants in these percentages: John Horton 10% Bradley Nelson 74% Timothy Johnson 8% David Melchert 8% On September 4, 1980, the trial court ordered the entry of judgment awarding Horton damages of $720,000 against appellants Orbeth, Inc., and Bradley Nelson (for whose negligence Orbeth, Inc., is vicariously liable) and entry of judgment in favor of third-party defendants Johnson and Melc-hert. Subsequently, the main action was settled; the trial court approved the settlement in the amount of $600,000 on January 5, 1981. On September 2, 1981, the appellants moved for judgment against Johnson and Melchert on a theory of contribution among joint tortfeasors. That motion was denied, and judgment in favor of respondents Johnson and Melchert was finally entered on June 28, 1982. On appeal from that judgment the appellants contend that they have paid more than their proportionate share of the plaintiff’s damages and that, although the plaintiff had no viable claim against them, the respondents are co-tortfeasors from whom the appellants are entitled to exact contribution. We affirm. At the time of the accident which gave rise to these proceedings, actions involving negligence were governed by Minn. Stat. § 604.01 (1976). The effect of the comparative negligence of the parties on the claimant’s cause of action and on the apportionment of damages was set out at § 604.01, subd. 1: Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not as great as the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributable to the person recovering. The court may, and when requested by either party shall, direct the jury to find separate special verdicts determining the amount of damages and the percentage of negligence attributable to each party; and the court shall then reduce the amount of such damages in proportion to the amount of negligence attributable to the person recovering. When there are two or more persons who are jointly liable, contributions to awards shall be in proportion to the percentage of negligence attributable to each, provided, however, that each shall remain jointly and severally liable for the whole award.1 The statute provides in plain language for proportionate contribution among those who are “jointly liable” to the plaintiff and who are “jointly and severally liable for the entire award.” The statute makes no provision for contribution by one who is not jointly liable to the plaintiff. Here the jury found the plaintiff more negligent than ei*114ther respondent. Accordingly, had the plaintiff asserted claims against Johnson and Melehert in the main action, they would have been adjudged not liable to the plaintiff. Minn. Stat. § 604.01 (1976). See Marier v. Memorial Rescue Service, Inc., 296 Minn. 242, 246, 207 N.W.2d 706, 709 (1973). Since Nelson and Orbeth, Inc., are the only parties who are liable for the award, the statutory scheme of damage apportionment does not contemplate contribution by Johnson or Melehert. See Jack Frost, Inc. v. Engineered Building Components Company, Inc., 304 N.W.2d 346 (Minn.1981) (where one defendant was more negligent than the plaintiff and another defendant was less negligent than the plaintiff, the more negligent defendant was liable for the entire amount of the plaintiffs damages reduced only by the proportion of causal negligence attributable to the plaintiff). Nor does Minnesota’s time-honored common law of contribution justify the claim of the appellants for contribution from parties who are not liable to the injured party. “The very essence of the action of contribution is ‘common liability.’ ” American Automobile Ins. Co. v. Molling, 239 Minn. 74, 76, 57 N.W.2d 847, 849 (1953). “[I]t is joint liability, rather than joint or concurring negligence, which determines the right of contribution.” Spitzack v. Schumacher, 308 Minn. 143, 148, 241 N.W.2d 641, 645, n. 2 (1976) (emphasis in original). Although contribution is an equitable doctrine, the doctrine requires only that “persons under a common burden share that burden equitably.” Id. at 145, 241 N.W.2d at 643. In the present case the appellants and respondents are not under a common burden. The burden is that of the appellants alone. Even though the jury found the respondents negligent to some degree, neither was negligent to a degree sufficient to impose liability to the injured party. We have consistently refused to require a party to contribute to an award when the quality of his conduct did not justify imposing liability to the injured party. E.g., Hart v. Cessna Aircraft Co., 276 N.W.2d 166 (Minn.1979) (defendant airplane manufacturer not entitled to contribution from defendant pilot whose conduct was found not negligent in a prior action); Spitzack v. Schumacher, 308 Minn. 143, 241 N.W.2d 641 (1976) (liquor vendor denied contribution from a driver found less negligent than the intoxicated decedent in prior action). Of course, what constitutes “common liability” is not susceptible of a single precise definition. The concept, an element of the equitable remedy of contribution, is accorded some elasticity. Common liability does not depend solely on whether or not a plaintiff can enforce recovery against two or more defendants. We have held that certain technical defenses, defenses that do not go to the merits of the case, do not extinguish common liability even though they eliminate one defendant’s direct obligation to compensate the plaintiff. Jones v. Fisher, 309 N.W.2d 726, 729 (Minn.1981). In such instances it is a factor extrinsic to the tort itself {e.g., failure to provide statutory notice, covenant not to sue, personal immunity, or the running of the statute of limitations) by which liability is avoided. The acts or omissions of the excused defendant were otherwise sufficient to subject the defendant to liability. In the present case, however, the non-liability of respondents Johnson and Melehert is not the product of a technical defense — a jury has judged their conduct on the merits and found them less negligent than the plaintiff.2 In a long line of cases we have uniformly declined to allow contribution where there has been a valid determination on the merits that common liability (however flexible its definition) could never have existed. E.g., Spitzack v. Schumacher, 308 Minn. 143, 147-48, 241 N.W.2d 641, 644 (1976). Lambertson v. Cincinnati Corp., 312 Minn. 114, 257 N.W.2d 679 (1977), and its *115progeny do not stand as authority for the proposition that common liability is no longer relevant to the availability of contribution. Lambertson was injured in an industrial accident. Lambertson was negligent, but in a lesser degree than either the manufacturer of the offending equipment (25%) or Lambertson’s employer (60%). We permitted the manufacturer to recover “contribution” from the employer even though there was no common liability in tort: Under the exclusive remedy clause of the Workers’ Compensation Act the employer enjoyed a personal immunity from tort liability to his employee. Since, however, the employer was liable for the no-fault benefits fixed by the Workers’ Compensation Act, the manufacturer and the employer were each liable — albeit uncommonly — to Lambertson. In the sense, then, that both were liable to Lambertson, “common liability” did exist. Moreover, while Lambertson speaks in terms of contribution, the real impact of the decision was the limitation of a negligent employer’s right of subrogation. The Workers’ Compensation Act, while imposing on an employer liability to his injured employee for the benefits prescribed by the Act — without regard to the employer’s fault — also affords the employer a right to reimbursement from the proceeds of the employee’s action against a third-party tortfeasor — again without regard to the employer’s fault. Minn. Stat. § 176.061, subds. 5, 6 (1982). In Lambertson we ameliorated the manifest inequity of requiring a third-party tortfeasor not only to compensate the injured worker but also to indemnify the worker’s more negligent employer, by requiring the employer to “contribute” to the award. We held that although contribution was to be proportional to the employer’s negligence, it could not exceed the level of common liability. The employer was obligated to contribute only up to the amount of workers’ compensation benefits payable even though the employer’s fault-based share of the damages would have been greater. In short, contribution was merely a vehicle for offsetting a negligent employer’s right of subrogation. See also Johnson v. Raske Building Systems Inc., 276 N.W.2d 79 (Minn.1979). Nor did the recent extension of the Lambertson principle in Hudson v. Snyder Body, Inc., 326 N.W.2d 149 (Minn.1982), alter the basic requirement of common liability. In Hudson, as in Lambertson, we permitted contribution proportional to the employer’s negligence but limited to the amount of workers’ compensation benefits payable. In Hudson, unlike Lambertson, the employee could not have recovered damages in a tort action against his employer pursuant to the applicable comparative negligence statute. Nevertheless, Hudson’s employer and the third-party tortfeasors shared the same kind of “common liability” that Lambertson’s employer and the equipment manufacturer shared; and the effect of the decision in Hudson, like that in Lambertson, was to deny a negligent employer a right of reimbursement with respect to his statutory liability to the extent of the employer’s proportionate share of the fault. In the present case the respondents have no liability to the plaintiff either on the merits of the plaintiff’s common law cause of action or by reason of any statutorily imposed obligation. No species of common liability exists between appellants and respondents on which contribution can be based. The appellants justify their quest for contribution on the ground that it is “unfair” to require a party who was found 74% causally negligent to pay 90% of the damages sustained by the plaintiff. The respondents counter with the contention that it would be “unfair” to require a party to contribute to the payment of damages for which a jury has said he is not liable. Minn. Stat. § 604.01, subd. 1 (1982) provides (a) that the plaintiff cannot recover from one whose degree of fault is less than the plaintiff’s, and (b) that the damages shall be reduced only in proportion to the plaintiff’s fault. It would, perhaps, have been more consistent had the legislature decreed that the damages be reduced in proportion to the aggregate fault of the plaintiff and all less-at-fault parties, from' whom the *116plaintiff cannot recover, but that is not what the legislature did. Rather, it determined that any defendant who is liable shall be jointly and severally liable for the whole award (diminished only by the plaintiffs proportionate share of fault) and that those parties jointly liable shall each contribute in proportion to his fault. Minn. Stat. § 604.02, subd. 1 (1982). Thus, the legislature has created a modified comparative fault system which comprises liability and contribution.3 We have previously declined to engraft a pure comparative fault liability exception to that statute. Cam-bern v. Sioux Tools, Inc., 323 N.W.2d 795 (Minn.1982). We now decline to engraft a pure comparative fault contribution exception to the statutory system. Affirmed. SIMONETT, J., took no part in the consideration or decision of this case.

*113COYNE, Justice. On July 22, 1977, John Horton was injured in a boating accident. Horton’s guardian ad litem brought an action on his behalf against appellants Orbeth, Inc., and Bradley Nelson, the owner and the operator, respectively, of the boat which struck Horton. Appellants instituted third-party proceedings against Horton’s two companions, respondents Timothy Johnson and David Melchert, seeking indemnity or contribution. The matter was tried to a jury, which determined by special verdict that Horton had sustained damages of $800,000 and apportioned causal negligence among the plaintiff, the defendants, and the third-party defendants in these percentages: John Horton 10% Bradley Nelson 74% Timothy Johnson 8% David Melchert 8% On September 4, 1980, the trial court ordered the entry of judgment awarding Horton damages of $720,000 against appellants Orbeth, Inc., and Bradley Nelson (for whose negligence Orbeth, Inc., is vicariously liable) and entry of judgment in favor of third-party defendants Johnson and Melc-hert. Subsequently, the main action was settled; the trial court approved the settlement in the amount of $600,000 on January 5, 1981. On September 2, 1981, the appellants moved for judgment against Johnson and Melchert on a theory of contribution among joint tortfeasors. That motion was denied, and judgment in favor of respondents Johnson and Melchert was finally entered on June 28, 1982. On appeal from that judgment the appellants contend that they have paid more than their proportionate share of the plaintiff’s damages and that, although the plaintiff had no viable claim against them, the respondents are co-tortfeasors from whom the appellants are entitled to exact contribution. We affirm. At the time of the accident which gave rise to these proceedings, actions involving negligence were governed by Minn. Stat. § 604.01 (1976). The effect of the comparative negligence of the parties on the claimant’s cause of action and on the apportionment of damages was set out at § 604.01, subd. 1: Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not as great as the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributable to the person recovering. The court may, and when requested by either party shall, direct the jury to find separate special verdicts determining the amount of damages and the percentage of negligence attributable to each party; and the court shall then reduce the amount of such damages in proportion to the amount of negligence attributable to the person recovering. When there are two or more persons who are jointly liable, contributions to awards shall be in proportion to the percentage of negligence attributable to each, provided, however, that each shall remain jointly and severally liable for the whole award.1 The statute provides in plain language for proportionate contribution among those who are “jointly liable” to the plaintiff and who are “jointly and severally liable for the entire award.” The statute makes no provision for contribution by one who is not jointly liable to the plaintiff. Here the jury found the plaintiff more negligent than ei*114ther respondent. Accordingly, had the plaintiff asserted claims against Johnson and Melehert in the main action, they would have been adjudged not liable to the plaintiff. Minn. Stat. § 604.01 (1976). See Marier v. Memorial Rescue Service, Inc., 296 Minn. 242, 246, 207 N.W.2d 706, 709 (1973). Since Nelson and Orbeth, Inc., are the only parties who are liable for the award, the statutory scheme of damage apportionment does not contemplate contribution by Johnson or Melehert. See Jack Frost, Inc. v. Engineered Building Components Company, Inc., 304 N.W.2d 346 (Minn.1981) (where one defendant was more negligent than the plaintiff and another defendant was less negligent than the plaintiff, the more negligent defendant was liable for the entire amount of the plaintiffs damages reduced only by the proportion of causal negligence attributable to the plaintiff). Nor does Minnesota’s time-honored common law of contribution justify the claim of the appellants for contribution from parties who are not liable to the injured party. “The very essence of the action of contribution is ‘common liability.’ ” American Automobile Ins. Co. v. Molling, 239 Minn. 74, 76, 57 N.W.2d 847, 849 (1953). “[I]t is joint liability, rather than joint or concurring negligence, which determines the right of contribution.” Spitzack v. Schumacher, 308 Minn. 143, 148, 241 N.W.2d 641, 645, n. 2 (1976) (emphasis in original). Although contribution is an equitable doctrine, the doctrine requires only that “persons under a common burden share that burden equitably.” Id. at 145, 241 N.W.2d at 643. In the present case the appellants and respondents are not under a common burden. The burden is that of the appellants alone. Even though the jury found the respondents negligent to some degree, neither was negligent to a degree sufficient to impose liability to the injured party. We have consistently refused to require a party to contribute to an award when the quality of his conduct did not justify imposing liability to the injured party. E.g., Hart v. Cessna Aircraft Co., 276 N.W.2d 166 (Minn.1979) (defendant airplane manufacturer not entitled to contribution from defendant pilot whose conduct was found not negligent in a prior action); Spitzack v. Schumacher, 308 Minn. 143, 241 N.W.2d 641 (1976) (liquor vendor denied contribution from a driver found less negligent than the intoxicated decedent in prior action). Of course, what constitutes “common liability” is not susceptible of a single precise definition. The concept, an element of the equitable remedy of contribution, is accorded some elasticity. Common liability does not depend solely on whether or not a plaintiff can enforce recovery against two or more defendants. We have held that certain technical defenses, defenses that do not go to the merits of the case, do not extinguish common liability even though they eliminate one defendant’s direct obligation to compensate the plaintiff. Jones v. Fisher, 309 N.W.2d 726, 729 (Minn.1981). In such instances it is a factor extrinsic to the tort itself {e.g., failure to provide statutory notice, covenant not to sue, personal immunity, or the running of the statute of limitations) by which liability is avoided. The acts or omissions of the excused defendant were otherwise sufficient to subject the defendant to liability. In the present case, however, the non-liability of respondents Johnson and Melehert is not the product of a technical defense — a jury has judged their conduct on the merits and found them less negligent than the plaintiff.2 In a long line of cases we have uniformly declined to allow contribution where there has been a valid determination on the merits that common liability (however flexible its definition) could never have existed. E.g., Spitzack v. Schumacher, 308 Minn. 143, 147-48, 241 N.W.2d 641, 644 (1976). Lambertson v. Cincinnati Corp., 312 Minn. 114, 257 N.W.2d 679 (1977), and its *115progeny do not stand as authority for the proposition that common liability is no longer relevant to the availability of contribution. Lambertson was injured in an industrial accident. Lambertson was negligent, but in a lesser degree than either the manufacturer of the offending equipment (25%) or Lambertson’s employer (60%). We permitted the manufacturer to recover “contribution” from the employer even though there was no common liability in tort: Under the exclusive remedy clause of the Workers’ Compensation Act the employer enjoyed a personal immunity from tort liability to his employee. Since, however, the employer was liable for the no-fault benefits fixed by the Workers’ Compensation Act, the manufacturer and the employer were each liable — albeit uncommonly — to Lambertson. In the sense, then, that both were liable to Lambertson, “common liability” did exist. Moreover, while Lambertson speaks in terms of contribution, the real impact of the decision was the limitation of a negligent employer’s right of subrogation. The Workers’ Compensation Act, while imposing on an employer liability to his injured employee for the benefits prescribed by the Act — without regard to the employer’s fault — also affords the employer a right to reimbursement from the proceeds of the employee’s action against a third-party tortfeasor — again without regard to the employer’s fault. Minn. Stat. § 176.061, subds. 5, 6 (1982). In Lambertson we ameliorated the manifest inequity of requiring a third-party tortfeasor not only to compensate the injured worker but also to indemnify the worker’s more negligent employer, by requiring the employer to “contribute” to the award. We held that although contribution was to be proportional to the employer’s negligence, it could not exceed the level of common liability. The employer was obligated to contribute only up to the amount of workers’ compensation benefits payable even though the employer’s fault-based share of the damages would have been greater. In short, contribution was merely a vehicle for offsetting a negligent employer’s right of subrogation. See also Johnson v. Raske Building Systems Inc., 276 N.W.2d 79 (Minn.1979). Nor did the recent extension of the Lambertson principle in Hudson v. Snyder Body, Inc., 326 N.W.2d 149 (Minn.1982), alter the basic requirement of common liability. In Hudson, as in Lambertson, we permitted contribution proportional to the employer’s negligence but limited to the amount of workers’ compensation benefits payable. In Hudson, unlike Lambertson, the employee could not have recovered damages in a tort action against his employer pursuant to the applicable comparative negligence statute. Nevertheless, Hudson’s employer and the third-party tortfeasors shared the same kind of “common liability” that Lambertson’s employer and the equipment manufacturer shared; and the effect of the decision in Hudson, like that in Lambertson, was to deny a negligent employer a right of reimbursement with respect to his statutory liability to the extent of the employer’s proportionate share of the fault. In the present case the respondents have no liability to the plaintiff either on the merits of the plaintiff’s common law cause of action or by reason of any statutorily imposed obligation. No species of common liability exists between appellants and respondents on which contribution can be based. The appellants justify their quest for contribution on the ground that it is “unfair” to require a party who was found 74% causally negligent to pay 90% of the damages sustained by the plaintiff. The respondents counter with the contention that it would be “unfair” to require a party to contribute to the payment of damages for which a jury has said he is not liable. Minn. Stat. § 604.01, subd. 1 (1982) provides (a) that the plaintiff cannot recover from one whose degree of fault is less than the plaintiff’s, and (b) that the damages shall be reduced only in proportion to the plaintiff’s fault. It would, perhaps, have been more consistent had the legislature decreed that the damages be reduced in proportion to the aggregate fault of the plaintiff and all less-at-fault parties, from' whom the *116plaintiff cannot recover, but that is not what the legislature did. Rather, it determined that any defendant who is liable shall be jointly and severally liable for the whole award (diminished only by the plaintiffs proportionate share of fault) and that those parties jointly liable shall each contribute in proportion to his fault. Minn. Stat. § 604.02, subd. 1 (1982). Thus, the legislature has created a modified comparative fault system which comprises liability and contribution.3 We have previously declined to engraft a pure comparative fault liability exception to that statute. Cam-bern v. Sioux Tools, Inc., 323 N.W.2d 795 (Minn.1982). We now decline to engraft a pure comparative fault contribution exception to the statutory system. Affirmed. SIMONETT, J., took no part in the consideration or decision of this case.

+ 9 more citations in this opinion.

Pautz v. Cal-Ros, Inc. · 1983 5 citations

+ 5 more citations in this opinion.

Lesmeister v. Dilly · 1983 3 citations

+ 3 more citations in this opinion.

Jones v. Fleischhacker · 1982 1 citation

+ 1 more citation in this opinion.

Cambern v. Sioux Tools, Inc. · 1982 4 citations

+ 4 more citations in this opinion.

Holm v. Sponco Mfg., Inc. · 1982 6 citations

+ 6 more citations in this opinion.

Hudson v. Snyder Body, Inc. · 1982 2 citations

+ 2 more citations in this opinion.

Alden Wells Veterinarian Clinics, Inc. v. Wood · 1982 2 citations

+ 2 more citations in this opinion.

Peterson v. Bendix Home Systems, Inc. · 1982 2 citations

+ 2 more citations in this opinion.

Vikse v. Flaby · 1982 1 citation

+ 1 more citation in this opinion.

Maday v. Yellow Taxi Co. of Minneapolis · 1981 2 citations

+ 2 more citations in this opinion.

Jones v. Fisher · 1981 3 citations

+ 3 more citations in this opinion.

Wegan v. Village of Lexington · 1981 2 citations

+ 2 more citations in this opinion.

Ploog v. Ogilvie · 1981 1 citation

+ 1 more citation in this opinion.

Seim Ex Rel. Seim v. Garavalia · 1981 2 citations

+ 2 more citations in this opinion.

Jack Frost, Inc. v. Engineered Building Components Co. · 1981 3 citations

+ 3 more citations in this opinion.

Ruberg v. Skelly Oil Co. · 1980 2 citations

+ 2 more citations in this opinion.

Lange Ex Rel. Lange v. Schweitzer · 1980 1 citation

+ 1 more citation in this opinion.

Conde v. City of Spring Lake Park · 1980 1 citation

+ 1 more citation in this opinion.

Parks v. Allis-Chalmers Corp. · 1979 2 citations

+ 2 more citations in this opinion.

Lee Michael Scheurer v. Douglas Shrewsbury as Special Administrator for the Estate of Ann Maland, Deceased,... · 2024 1 citation

+ 1 more citation in this opinion.

Alvin Glay, trustee for the next of kin of Unity McGill v. R.C. of St. Cloud, Inc. · 2024 2 citations

+ 2 more citations in this opinion.

Randall Norman v. Crow Wing Cooperative Power & Light Company · 2016 3 citations

+ 3 more citations in this opinion.

Clark v. Connor · 2014 1 citation

+ 1 more citation in this opinion.

Leamington Co. v. Nonprofits' Insurance Ass'n · 2003 4 citations

+ 4 more citations in this opinion.

Hansen v. St. Paul Metro Treatment Center, Inc. · 2000 2 citations

+ 2 more citations in this opinion.

Sandborg v. Blue Earth County · 1999 2 citations

+ 2 more citations in this opinion.

Great West Casualty Co. v. State Farm Mutual Automobile Insurance Co. · 1999 10 citations

+ 10 more citations in this opinion.

Tester v. American Standard, Inc. · 1999 2 citations

+ 2 more citations in this opinion.

K.R. v. Sanford · 1999 6 citations

+ 6 more citations in this opinion.

Cressy v. Grassmann · 1995 1 citation

+ 1 more citation in this opinion.

VanWagner v. Mattison · 1995 2 citations

VanWagner argues that social hosts age 21 or older who illegally furnish alcohol to persons under age 21 are absolutely liable for resulting injuries. The Mattisons concede that they violated Minn. Stat. § 340A.503 (1992) when they furnished alcohol to Van-Wagner knowing that he was under 21; they argue, however, that VanWagner’s own negligence should be compared to their negligence in accordance with the comparative fault statute, Minn. Stat. § 604.01 (1992). Whether the comparative fault statute applies here is a question of first impression.

VanWagner argues that social hosts age 21 or older who illegally furnish alcohol to persons under age 21 are absolutely liable for resulting injuries. The Mattisons concede that they violated Minn. Stat. § 340A.503 (1992) when they furnished alcohol to Van-Wagner knowing that he was under 21; they argue, however, that VanWagner’s own negligence should be compared to their negligence in accordance with the comparative fault statute, Minn. Stat. § 604.01 (1992). Whether the comparative fault statute applies here is a question of first impression.

Oelschlager v. Magnuson · 1995 1 citation

+ 1 more citation in this opinion.

Fire Insurance Exchange v. Adamson Motors · 1994 1 citation

+ 1 more citation in this opinion.

Stenvik v. Constant · 1993 1 citation

+ 1 more citation in this opinion.

Independent School District No. 622 v. Keene Corp. · 1993 2 citations

+ 2 more citations in this opinion.

Krutsch v. Walter H. Collin GmBh Verfahrenstechnik Und Maschinenfabric · 1993 1 citation

+ 1 more citation in this opinion.

M.W. Ettinger Transfer & Leasing Co. v. Schaper Manufacturing, Inc. · 1992 1 citation

Schaper contends the trial court erred by not submitting the issue of Ettinger’s fault to the jury in the special verdict form. At the close of Schaper’s case at trial, respondents moved for a directed verdict concerning Ettinger’s independent liability, separate from any vicarious liability for its employees. In not instructing the jury on Ettinger’s fault, the trial court implicitly granted respondents’ motion for a directed verdict on the liability issue. See Minn. Stat. § 604.01, subd. 1 (1990) (upon a party’s request the trial court shall direct the jury to find separate special verdicts determining the fault attributable to each party).

McKay's Family Dodge v. Hardrives, Inc. · 1992 2 citations

+ 2 more citations in this opinion.

O'NEIL v. Wells Concrete Products Co. · 1991 1 citation

+ 1 more citation in this opinion.

Casper v. City of Stacy · 1991 1 citation

+ 1 more citation in this opinion.

Andren v. White-Rodgers Co. · 1991 2 citations

ANALYSIS On appeal from a grant of summary judgment, we must determine whether any genuine issues of material fact exist and whether the trial court erred in its application of the law. Offerdahl v. University of Minn. Hosps. and Clinics, 426 N.W.2d 425, 427 (Minn.1988). The facts are not disputed. The only issue before this court is whether primary assumption of the risk can be a bar to recovery in a products liability case. We need not defer to the trial court's application of the law. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn.1984). Minnesota law recognizes two types of assumption of the risk. Swagger v. City of Crystal, 379 N.W.2d 183, 184 (Minn.App.1985), pet. for rev. denied (Minn. Feb. 19, 1986). Primary assumption of the risk arises: Where parties have voluntarily entered a relationship in which plaintiff assumes well-known, incidental risks. As to those risks, the defendant has no duty to protect the plaintiff and, thus, if the plaintiff's injury arises from an incidental risk, the defendant is not negligent. Olson v. Hansen, 299 Minn. 39, 44, 216 N.W.2d 124, 127 (1974). Conversely, secondary assumption of the risk "is a type of contributory negligence where the plaintiff voluntarily encounters a known and appreciated hazard created by the defendant without relieving the defendant of his duty of care with respect to such hazard." Armstrong v. Mailand, 284 N.W.2d 343, 349 (Minn.1979). The elements of both primary and secondary assumption of the risk are whether a person had (a) knowledge of the risk; (b) an appreciation of the risk; and (c) a choice to avoid the risk but voluntarily *105 chose to chance the risk. See id. at 351; Olson, 299 Minn. at 44, 45, 216 N.W.2d at 127, 128; Goodwin v. Legionville School Safety Patrol Training Center, 422 N.W.2d 46, 49 (Minn.App.1988), pet. for rev. denied (Minn. June 23, 1988); see also Restatement (Second) of Torts §§ 496A-E (1965). The manifestations of acceptance and consent dictate whether primary or secondary assumption of the risk is applicable in a given case. Armstrong, 284 N.W.2d at 351. The wisdom and reasonableness of the plaintiff's actions are not factors in the determination. Id. The doctrine of primary assumption of the risk defines the limits of a defendant's duty to the plaintiff. Id. By voluntarily entering into a situation where the defendant's negligence is obvious, the plaintiff accepts and consents to it and agrees "to undertake to look out for himself and relieve the defendant of the duty." W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Torts, § 68, at 485 (5th ed. 1984) (hereinafter W. Keeton). When the facts are undisputed and reasonable people can draw only one conclusion, assumption of the risk is a question of law for the court. Schroeder v. Jesco, Inc., 296 Minn. 447, 451, 209 N.W.2d 414, 417 (1973). Andren argues the trial court erred by granting summary judgment for respondents because primary assumption of the risk does not apply in products liability cases. We disagree. In Armstrong, the supreme court applied the doctrine of primary assumption of the risk to a products liability claim. See Armstrong, 284 N.W.2d at 352. The supreme court stated that the public policies underlying strict liability actions did not require the plaintiff's conduct to be removed from consideration when the court assessed liability. Id. Although Armstrong interpreted the fireman's rule, which has since been statutorily abolished, the theory underlying Armstrong has been adopted in other cases. See, e.g., Omnetics, Inc. v. Radiant Technology Corp., 440 N.W.2d 177, 181 (Minn. App.1989) (plaintiff's fault may be examined in a strict products liability action). Minn. Stat. § 604.01, subds. 1, 1a (1988) also provides a plaintiff's conduct, including unreasonable assumption of the risk, can be considered in strict liability and breach of warranty actions. Thus, primary assumption of the risk is applicable in a products liability action involving a defective product. See also Wagner v. Firestone Tire & Rubber Co., 890 F.2d 652, 657 (3d Cir.1989) (assumption of risk is a complete defense in design defect cases); Rolfes v. International Harvester Co., 817 F.2d 471, 474 (8th Cir.1987) (Iowa law provides that assumption of the risk is a defense in a defective product case); Restatement (Second) of Torts § 402A, comment n (1965). The abolition of the latent-patent danger rule does not preclude the application of primary assumption of the risk to a products liability action. The latent-patent danger rule absolves a manufacturer from liability for injuries caused by a defective product when the danger is obvious. Holm v. Sponco Mfg., Inc., 324 N.W.2d 207, 210 (Minn.1982). Conversely, primary assumption of the risk relieves a defendant of liability when the plaintiff knows and appreciates a danger, yet voluntarily chooses to chance the risk. Goodwin, 422 N.W.2d at 49. Thus, primary assumption of the risk involves subjective and volitional elements which are beyond the scope of the latent-patent danger rule. The three elements of both primary and secondary assumption of the risk are present in this case. First, Andren demonstrated his knowledge of the risk by testifying he knew LP gas was dangerous and was specifically aware that lighting a cigarette in a room filled with LP gas would cause an explosion. Second, the record shows appellant appreciated the risk because he recognized the smell of LP gas in the basement, and knew he should not light a cigarette while he was in the basement. Finally, the evidence is clear Andren had a choice to avoid the danger by not smoking, yet he voluntarily chose to light the cigarette. Andren's lighting of a cigarette in a gas-filled room was a voluntary acceptance of a known danger. See Armstrong, 284 *106 N.W.2d at 351. The volitional act constituted consent to relieve respondents of their duty to protect Andren from harm. That Andren lighted the cigarette without considering its consequences makes his act no less volitional, see Jacobs v. Southern Ry. Co., 241 U.S. 229, 236, 36 S.Ct. 588, 591-92, 60 L.Ed. 970 (1916), because it is clear a reasonable person in his position must have understood the danger. See Schroeder, 296 Minn. at 452, 209 N.W.2d at 418. In essence, respondents were relieved of their duty to protect Andren because Andren was in an equal position to protect himself. See W. Keeton, supra, § 68, at 490-91. Further, the smell of gas in this case alerted Andren to the need to use extreme caution in the basement. In any products liability case, the plaintiff must establish a causal relationship between the defect and the injury. Bilotta v. Kelley Co., 346 N.W.2d 616, 623 n. 3 (Minn.1984); Rients v. International Harvester Co., 346 N.W.2d 359, 362 (Minn.App.1984). Here, the issue of causation did not require jury determination where the obvious danger of Andren's activities eliminates the alleged defective valve as the substantial cause of the accident. See Balder v. Haley, 399 N.W.2d 77, 82 (Minn.1987) (no need to submit causation to jury because it was clear that failure to warn had no causal relationship to plaintiff's injury). Under these circumstances, the trial court properly granted summary judgment for respondents.

+ 1 more citation in this opinion.

Bushland v. Corner Pocket Billiard Lounge of Moorhead, Inc. · 1990 1 citation

+ 1 more citation in this opinion.

Computer Tool & Engineering, Inc. v. Northern States Power Co. · 1990 1 citation

+ 1 more citation in this opinion.

Paulson v. Lapa, Inc. · 1990 8 citations

+ 8 more citations in this opinion.

Judd Supply Co. v. Merchants & Manufacturers Insurance Co. · 1989 1 citation

+ 1 more citation in this opinion.

Gorecki v. County of Hennepin, Dept. of Public Works · 1989 1 citation

+ 1 more citation in this opinion.

Reinsurance Ass'n of Minnesota v. Dunbar Kapple, Inc. · 1989 1 citation

+ 1 more citation in this opinion.

Moose Club v. LaBounty · 1989 2 citations

+ 2 more citations in this opinion.

Halla Nursery, Inc. v. Baumann-Furrie & Co. · 1989 1 citation

+ 1 more citation in this opinion.

Omnetics, Inc. v. Radiant Technology Corp. · 1989 2 citations

+ 2 more citations in this opinion.

Rambaum v. Swisher · 1988 3 citations

+ 3 more citations in this opinion.

Todalen v. United States Chemical Co. · 1988 2 citations

+ 2 more citations in this opinion.

Goodwin v. Legionville School Safety Patrol Training Center, Inc. · 1988 2 citations

+ 2 more citations in this opinion.

Henkel v. Holm · 1987 1 citation

Primary assumption of the risk relates to the initial issue of whether the defendant had any duty to protect the plaintiff from the risk of harm. Swagger v. City of Crystal, 379 N.W.2d 183, 185 (Minn.Ct.App.1985) pet. for rev. denied (Minn. Feb. 19, 1986). Primary assumption of the risk applies “only where parties have voluntarily entered a relationship in which plaintiff assumes well-known, incidental risks. As to those risks, the defendant has no duty to protect the plaintiff and, thus, if the plaintiff’s injury arises from an incidental risk, the defendant is not negligent.” Olson v. Hansen, 299 Minn. 39, 44, 216 N.W.2d 124, 127 (1974). Primary assumption of the risk is still applicable in Minnesota, despite the enactment of the comparative fault act, Minn. Stat. § 604.01 (1986). Swagger, 379 N.W.2d at 184-85.

Van Gordon v. Herzog · 1987 3 citations

+ 3 more citations in this opinion.

City of Burnsville v. Chicago Bridge & Iron Co. · 1987 2 citations

+ 2 more citations in this opinion.

Gillespie v. Klun · 1987 1 citation

+ 1 more citation in this opinion.

Fette v. Peterson · 1987 1 citation

+ 1 more citation in this opinion.

Jonathan v. Kvaal · 1987 2 citations

+ 2 more citations in this opinion.

Peterson v. Burlington Northern Railroad · 1987 1 citation

Appellants’ first contention on appeal relates to the propriety of opposing counsel’s comments during final argument. This *177 case was tried according to Minn. Stat. § 604.01 (1984) (the comparative fault statute) and the jury returned its verdict pursuant to special verdict questions. Ordinarily, comment by the court or counsel on the effect of the jury’s answers to special verdict questions on the outcome of the case is prohibited. Minn.R.Civ.P. 49.01(1). An exception to this general rule involves actions where comparative fault is at issue:

Ketterling v. Spud Bar, Inc. · 1986 2 citations

+ 2 more citations in this opinion.

Johnson v. Alford & Neville, Inc. · 1986 1 citation

+ 1 more citation in this opinion.

Steinbrecher v. McLeod Cooperative Power Ass'n · 1986 1 citation

+ 1 more citation in this opinion.

Ripka v. Mehus · 1986 1 citation

+ 1 more citation in this opinion.

Yule v. Iowa National Mutual Insurance Co. · 1986 2 citations

3. Did the trial court erroneously apply the Comparative Fault Act, Minn. Stat. § 604.01 (1984)?

3. Did the trial court erroneously apply the Comparative Fault Act, Minn. Stat. § 604.01 (1984)?

Craft Tool & Die Co., Inc. v. Payne · 1986 1 citation

+ 1 more citation in this opinion.

Kelzer v. Wachholz · 1986 1 citation

+ 1 more citation in this opinion.

Bowen v. Arnold · 1986 1 citation

+ 1 more citation in this opinion.

Walton v. Fujita Tourist Enterprises Co. · 1986 2 citations

+ 2 more citations in this opinion.

Swagger v. City of Crystal · 1985 1 citation

+ 1 more citation in this opinion.

Rediske v. Minnesota Valley Breeder's Ass'n · 1985 3 citations

+ 3 more citations in this opinion.

Croxen v. Salhus · 1985 1 citation

+ 1 more citation in this opinion.

LeBaron v. Hanson · 1985 1 citation

+ 1 more citation in this opinion.

Braegelmann v. Horizon Development Co. · 1985 2 citations

+ 2 more citations in this opinion.

Hosley v. Armstrong Cork Co. · 1985 4 citations

+ 4 more citations in this opinion.

Thompson v. Hill · 1985 1 citation

+ 1 more citation in this opinion.

Yates v. Hanna Min. Co., Inc. · 1985 6 citations

+ 6 more citations in this opinion.

Isker v. Gardner · 1985 1 citation

+ 1 more citation in this opinion.

Florenzano v. Olson · 1984 3 citations

+ 3 more citations in this opinion.

D & a DEVELOPMENT CO. v. Butler · 1984 1 citation

+ 1 more citation in this opinion.

Bekis v. Schilling · 1984 1 citation

+ 1 more citation in this opinion.

Employers Mutual Insurance Co. v. Oakes Manufacturing Co. · 1984 1 citation

+ 1 more citation in this opinion.