author: WILLIS, Judge.

text:
    Diane LORIX, individually and on behalf of all others similarly situated, Respondent, v. CROMPTON CORPORATION, et al., Defendants, Flexsys NV, et al., Appellants.
    No. A03-1518.
    Court of Appeals of Minnesota.
    June 2, 2004.

      Garrett D. Blanchfield, Jr., Mark Reinhardt, Reinhardt Wendorf & Blanchfield, St. Paul, MN, for respondent.
    William L. Greene, David R. Crosby, Leonard Street and Deinard, PA, Minneapolis, MN; and James D. Slear, Gibson, Dunn & Crutcher, LLP, Washington, DC, for appellants.
    Considered and decided by WRIGHT, Presiding Judge; SCHUMACHER, Judge; and WILLIS, Judge.
   OPINION

WILLIS, Judge.

On appeal from a district court order denying appellants’ motion to dismiss for lack of personal jurisdiction, appellants argue that the district court erroneously concluded that it could exercise personal jurisdiction over appellants. Because we conclude that respondent has not shown sufficient contacts for the exercise of either specific or general jurisdiction, we reverse.

FACTS

Respondent Diane Lorix’s amended class-action complaint alleges that appellants Flexsys NV and Flexsys America LP (collectively “Flexsys”) conspired with the other named defendants to fix the prices of certain rubber-processing products, in violation of Minn.Stat. §§ 325D.49-.66D (2002), the Minnesota Antitrust Law. The complaint alleges that Flexsys, along with the other defendants, produce most of the rubber-processing chemicals sold in the United States and, in turn, sell most of those chemicals to automobile-tire manufacturers. Lorix brought suit in Minnesota district court on behalf of a putative class consisting of “[a]ll persons who purchased tires in the State of Minnesota other than for resale from January 1, 1994 to the present which were manufactured using rubber-processing chemicals sold by Defendants.” In her amended class-action complaint, Lorix maintains that (1) the alleged price-fixing conspiracy had the “effect of fixing, raising, stabilizing, and maintaining the price for rubber-processing chemicals sold to tire manufacturers,” (2) the tire manufacturers passed the supra competitive price on to consumers, and (3) thus, Minnesota consumers paid more for tires manufactured with Flexsys’s rubber-processing chemicals than they would have paid absent the conspiracy. The complaint seeks recovery of the overcharges paid by Minnesota consumers as a result of the alleged conspiracy; similar actions have been filed against the same defendants in 18 other jurisdictions.

Flexsys NV is headquartered in Belgium and Flexsys America LP, which is the United States subsidiary of Flexsys NV, is a Delaware limited partnership with its headquarters located in Akron, Ohio. Neither is licensed to do business in Minnesota or has any employees, sales agents, or business operations in Minnesota. Flexsys moved to dismiss Lorix’s claim on the ground that the Minnesota district court lacks personal jurisdiction over Flexsys. The district court denied the motion, and this appeal follows.

ISSUE

Did the district court err by denying appellants’ motion to dismiss for lack of personal jurisdiction?

ANALYSIS

An order denying a motion to dismiss for lack of personal jurisdiction is appealable as a matter of right. Stanek v. A.P.I., Inc., 474 N.W.2d 829, 831 (Minn.App.1991), review denied (Minn. Oct. 31, 1991).

Determining whether personal jurisdiction exists is a question of law, and this court need not defer to the district court’s decision. Id. at 832. “When jurisdiction is challenged, the plaintiff bears the burden of proving that sufficient contacts exist with the forum state to support personal jurisdiction.” V.H. v. Estate of Birnbaum, 543 N.W.2d 649, 653 (Minn.1996).

A Minnesota court may assume jurisdiction over nonresident defendants only to the extent permitted by Minnesota’s long-arm statute and by the Due Process Clause of the Fourteenth Amendment. Marshall v. Inn on Madeline Island, 610 N.W.2d 670, 673 (Minn.App.2000). Because Minnesota’s long-arm statute is coextensive with the constitutional limits of due process, the inquiry necessarily focuses on the personal-jurisdiction requirements of the federal constitution. Valspar Corp. v. Lukken Color Corp., 495 N.W.2d 408, 410-11 (Minn.1992). To satisfy the Due Process Clause, a plaintiff must show that a defendant has “minimum contacts” with a forum state such that maintaining jurisdiction there does not offend “traditional notions 'of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). There must be “some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum [s]tate, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958). The defendant must reasonably anticipate the possibility of being haled into the state’s courts. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980).

Minnesota courts use a five-factor test to determine whether the exercise of personal jurisdiction is proper:

(1) The quantity of the contacts with the forum state,
(2) The nature and quality of the contacts,
(3) The source and connection • of the , cause of action with these contacts,
(4) The interest of the state in providing a forum,
(5) The convenience of the parties.

Vikse v. Flaby, 316 N.W.2d 276, 282 (Minn.1982). There is a distinction between specific and general personal jurisdiction. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 nn. 8-9, 104 S.Ct. 1868, 1872 nn. 8-9, 80 L.Ed.2d 404 (1984); Valspar, 495 N.W.2d at 411. Specific jurisdiction exists when the cause of action arises out of or is related to the defendant’s contacts with the forum. Helicopteros Nacionales, 466 U.S. at 414 n. 8, 104 S.Ct. at 1872 n. 8. Specific jurisdiction can exist as the result of a single contact with the forum if the cause of action arose out of that contact. See McGee v. Int’l Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 201, 2 L.Edüd 223 (1957). General jurisdiction exists when a defendant has “continuous and systematic” contacts with the forum state. Helicopteros Nacionales, 466 U.S. at 415-16, 104 S.Ct. at 1872-73.

The district court denied Flexsys’s motion to dismiss, finding that it could exercise personal jurisdiction over Flexsys; the district court, however, did not articulate whether it found that it had specific or general jurisdiction over Flexsys. Flexsys argues that its contacts with Minnesota were not related to the cause of action so as to establish specific jurisdiction and are not of a sufficient quantity or quality to establish general jurisdiction.

1. Specific Jurisdiction

Flexsys argues that it is not subject to specific jurisdiction because (1) its in-state sales are unrelated to Lorix’s claim and (2) its out-of-state sales to tire manufacturers are not a purposeful contact directed at Minnesota. In judging minimum contacts for purposes of assessing whether the exercise of specific jurisdiction is appropriate, a court focuses on the “relationship among the defendant, the forum, and the litigation.” Id. at 414, 104 S.Ct. at 1872. Specific jurisdiction may be found when the nonresident defendant has “purposefully directed [its] activities at residents of the forum and the litigation results from alleged injuries that ‘arise out of or relate to’ those activities.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 2182, 85 L.Ed.2d 528 (1985) (citation omitted).

Flexsys argues first that because its only sales of rubber-processing chemicals in Minnesota were to 3M and HCI Worum, which used them to make products other than tires, there is no connection between Flexsys’s sales in Minnesota and Lorix’s alleged injury. Thus, Flexsys argues, its sales to 3M and HCI Worum did not provide “fair warning” of being sued in Minnesota for injuries resulting from the sales of tires because Lorix’s claim does not “involve” and is not “connected with” or “directly related to” appellants’ sales to 3M and Worum.

Lorix contends, however, that there must only be a “reasonably close connection” between the cause of action and the defendant’s contacts with the forum state to support a finding of specific jurisdiction. Lorix argues that the sale of rubber-processing chemicals to Minnesota corporations to manufacture products other than tires is sufficiently related to a suit alleging that downstream indirect purchasers paid a supracompetitive price for tires that contained those same rubber-processing chemicals. But for specific jurisdiction to exist, a plaintiff must show a more direct connection between his alleged injury and the defendant’s contacts with the forum state. See Marshall, 610 N.W.2d at 676 (holding “entering into a contract with a Minnesota resident can justify the exercise of specific jurisdiction but only where the dispute involves the contract”); Behm v. John Nuveen & Co., 555 N.W.2d 301, 307 (Minn.App.1996) (holding that specific jurisdiction requires plaintiff to show that defendant’s forum contacts be “related directly” to the subject of the lawsuit). Because Flexsys’s Minnesota sales were to companies that used the chemicals to make products other than tires, we conclude that Lorix’s claim that Minnesota consumers were overcharged for fees did not arise out of or relate to Flexsys’s Minnesota sales and, thus, do not constitute a basis for the exercise of specific jurisdiction.

Flexsys further argues that its out-of-state sales of rubber chemicals to tire manufacturers do not constitute a contact with Minnesota that would provide a basis for specific jurisdiction. Lorix counters that Flexsys could “clearly anticipate being haled into court in Minnesota” based on these sales because it would have had “full knowledge that the effects of [its] actions would likely be passed on through the chain of commerce to Minnesota consumers” and estimates that since 1994, Flexsys has indirectly derived more than $12.4 million in revenue from Minnesota based on its sales to tire manufacturers that sold to Minnesota tire purchasers. Lorix asserts that the Minnesota Antitrust Law provides an avenue of redress for indirect purchasers and maintains that because the United States Supreme Court recognized in Calif, v. ARC Am. Corp. that the term “indirect purchaser” includes persons injured by the fixing of prices for a component part of a finished product, it is irrelevant that Flex-sys’s products were incorporated into tires before being sold to Minnesota consumers. 490 U.S. 93, 97, 109 S.Ct. 1661, 1663, 104 L.Ed.2d 86 (1989).

Lorix argues that it is “irrelevant” whether Flexsys’s products were incorporated into tires before being sold to Minnesota consumers because it “is precisely this type of remote transgressor that the Minnesota Antitrust Law was intended to reach,” and that, thus, it is appropriate for Minnesota courts to exercise specific jurisdiction over Flexsys. We disagree. While the Minnesota Antitrust Law may confer subject-matter jurisdiction, the issue here is personal jurisdiction. And

it would put the cart before the horse to conclude that the entire constitutionally-mandated minimum contacts analysis may simply be jettisoned whenever a legislature enacts a statute which is intended to have extraterritorial application. On the contrary, we emphasize that the personal jurisdiction analysis must precede, and proceed independently of, the question whether a substantive [ ] statute has been violated.

See Holder v. Haarmann & Reimer Corp., 779 A.2d 264, 276 n. 13 (D.C.2001).

The Minnesota supreme court has held that a nonresident supplier does not have contacts with Minnesota that would support the exercise of personal jurisdiction by selling raw material to a nonresident manufacturer when (1) the manufacturer incorporated the raw material into a different product that the manufacturer then sold in Minnesota in accordance with its own business plans and (2) there was no showing that the supplier delivered its product into the stream of commerce with the expectation that it would be purchased by customers in Minnesota. In re Minn. Asbestos Litigation, 552 N.W.2d 242, 246-47 (Minn.1996). The supreme court stated that because there was no showing that the manufacturer’s contacts with the forum were “on behalf of [the supplier] or with [the supplier’s] approval,” the manufacturer’s actions in selling its finished product in Minnesota did not constitute a contact by the supplier that would permit Minnesota courts to exercise personal jurisdiction over the supplier. Id. at 247.

Lorix argues that Minn. Asbestos is distinguishable, however, because the plaintiff there sought to exercise personal jurisdiction over a defendant company that had no direct contacts with Minnesota and asserts that, here, Flexsys had direct contacts with Minnesota through its sales to two Minnesota businesses and its website. But the holding in Minn. Asbestos does not rest on the fact that the supplier did not have direct contacts with the forum; rather Minn. Asbestos held that the contacts that a manufacturer may have with the forum may not be imputed to a supplier when there is no showing that (1) the supplier intended to directly or indirectly market its product in the forum or that the supplier delivered its product into the stream of commerce with the expectation that it would be purchased by customers in the forum or (2) the manufacturer’s actions were done “on behalf of [the supplier] or with [the supplier’s] approval.” See id. Because Flexsys sells its product to tire manufacturers located outside of Minnesota, which produce their own products and then sell in accordance with their own business plans, we conclude that any contacts that the tire manufacturers have with Minnesota may not be imputed to Flexsys.

This conclusion is supported by Asahi Metal Indus. Co. v. Superior Court, in which a plurality of the United States Supreme Court explained that the “placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum [s]tate.” 480 U.S. 102, 112, 107 S.Ct. 1026, 1032, 94 L.Ed.2d 92 (1987). Asahi holds that a showing is needed of “additional conduct” by a defendant evidencing an “intent or purpose” to serve the market in the forum state. Id. And, here, Lorix has not shown that Flexsys’s out-of-state sales to tire manufacturers include any “additional conduct” by Flexsys, such as designing a product for the Minnesota market, advertising in Minnesota, or marketing the product through a distributor who had agreed to serve as a sales agent in Minnesota. Id. Thus, we conclude that Flexsys’s out-of-state sales of rubber-processing chemicals to tire manu-facturera are not a basis for the exercise of specific jurisdiction over Flexsys by a Minnesota court.

2. General Jurisdiction

Flexsys argues next that its contacts with Minnesota do not support the exercise of general jurisdiction over Flex-sys by Minnesota courts. General jurisdiction exists when a nonresident defendant’s contacts with the forum are so substantial and are of such a nature that the state may assert jurisdiction over the defendant even for causes of action unrelated to the defendant’s contacts with the forum state. See Valspar, 495 N.W.2d at 411. “[C]onduct of single or isolated items of activities in a state in [a] corporation’s behalf are not enough to subject it to [general jurisdiction].” Int’l Shoe, 326 U.S. at 317, 66 S.Ct. at 159. Only when a defendant’s “continuous corporate operations within a state [are] thought so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities” may a court assert general jurisdiction over a defendant. Id. at 318, 66 S.Ct. at 159. For example, in Helicópteros Nacionales, the Supreme Court held that a defendant corporation’s contacts with the forum state, which included the temporary physical presence of a corporate officer for contract negotiations, regular purchases of equipment and training services from a business in the forum, and personnel training in the forum, were not sufficiently continuous and systematic so that the attempted exercise of general jurisdiction would satisfy the requirements of due process. 466 U.S. at 418-19, 104 S.Ct. at 1874; cf. Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 445, 447-48, 72 S.Ct. 413, 418, 419, 96 L.Ed. 485 (1952) (holding that the exercise of general jurisdiction over a foreign corporation was “reasonable and just” when the corporation’s president maintained an office in the forum where he conducted activities on behalf of the company, such as keeping company files, holding directors’ meetings, carrying on business correspondence, and distributing salary checks drawn on forum bank accounts).

While the record shows that Flex-sys sold its products directly to two Minnesota companies, Flexsys maintains that these sales, which amounted to $633,424 from January 2000 to December 2002 and represented 0.01% of Flexsys’s gross annual sales, were “simple commercial contacts” and were not continuous and substantial contacts justifying the exercise of general jurisdiction. In Burlington Indus., Inc. v. Maples Indus., Inc., the eighth circuit court of appeals held that a foreign corporation’s sales to forum retailers, which were unrelated to the plaintiffs claims, constituted “[sjimple commercial contacts” that were insufficient to form the basis of general jurisdiction in the forum, even though officers of the foreign corporation went to the forum to obtain business and the foreign corporation used machines built in the forum to manufacture its products. 97 F.3d 1100, 1103 (8th Cir.1996). Thus, Flexsys maintains that “simple commercial contacts” unrelated to a plaintiffs claim are not transformed into an adequate constitutional basis for jurisdiction, even when the sales are of a much greater dollar volume than Flexsys’s sales in Minnesota. See Nichols v. G.D. Searle & Co., 991 F.2d 1195, 1198 (4th Cir.1993) (finding insufficient to support the exercise of general jurisdiction defendant’s annual sales of $9-13 million in the forum state over a five-year period, which constituted 2% of defendant’s total sales, employment of sales people in the forum state, and purchases in the forum state); Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 578 (2nd Cir.1996) (holding that “standing alone,” defendant’s $4 million in sales in the forum state over a seven-year period “may not have been sufficient” to support the exercise of general jurisdiction but that the numerous other contacts with the forum in the case, including advertising, relationships with dealers, and more than 150 visits “tip[ped] the balance” and led the court to conclude that there were sufficient contacts to allow the exercise of general jurisdiction).

Lorix counters that Flexsys misstates the relevant test by arguing that the exercise of general jurisdiction is inappropriate because its in-state sales constituted only approximately 0.01% of its total sales and asserts that, instead, a general-jurisdiction analysis must focus on whether the defendant’s contacts with the forum are substantial. See Lakin v. Prudential Sec., Inc., 348 F.3d 704, 709 (8th Cir.2003) (stating that the “[percentage of a company’s sales in a given state [is] generally irrelevant ... our relevant inquiry is not whether the percentage of a company’s contacts is substantial for that company; rather, our inquiry focuses on whether the company’s contacts are substantial for the forum”). We agree that the percentage of a company’s sales in a particular state is generally irrelevant, but we conclude that, standing alone, Flexsys’s contacts with 3M and HCI Worum are not substantial enough to justify the exercise of general jurisdiction. Thus, we must determine whether Flexsys has other contacts with Minnesota that would “tip the balance” and lead us to conclude that the exercise of general jurisdiction is appropriate.

Lorix asserts that Flexsys’s out-of-state sales to tire manufacturers are substantial and continuous contacts with Minnesota because Flexsys elected to serve the Minnesota market indirectly by selling its products to tire manufacturers that it “knew would then sell those tires to Minnesota residents.” But we do not find Lorix’s argument persuasive because the evidence does not show (1) that Flexsys targeted Minnesota consumers for these sales, (2) apart from Lorix’s own estimate, how much, if any, revenue Flexsys indirectly derived from Minnesota consumers as the result of its sales of rubber-processing chemicals to out-of-state tire manufacturers, or (3) that Flexsys used the tire manufacturers as its agents or distributors in Minnesota.

Lorix then argues that by having an interactive website, Flexsys had substantial and continuous contact with Minnesota, citing Quality Improvement Consultants, Inc. v. Williams for the proposition that the use of an interactive website has been recognized as a means to purposefully direct activities at Minnesota residents. No. Civ. 02-3994, 2003 WL 543393, *5-*6 (D.Minn. Feb.24, 2003) (holding that interactive websites that permit users to exchange information with a host computer fall in the middle of the active-passive spectrum of commercial Internet activity and may support a finding of personal jurisdiction). Flexsys notes, however, that Quality Improvement further states that if every website that is accessible by the residents of a state formed a basis for jurisdiction, nearly every business in the world would be subject to suit in every state for any lawsuit and that, thus, without any evidence that an interactive website was used to conduct actual commercial transactions with forum residents, the website, standing alone, is not enough to satisfy the minimum-contacts standard. Id. at *6.

Courts have rejected efforts to undermine constitutional protections by invoking a defendant’s mere presence on the Internet as reason for doing so:

This theory [of accessibility] simply cannot hold water. Indeed, under this view, personal jurisdiction in Internet-related cases would almost always be found in any forum in the country. We do not believe that the advent of advanced technology, say, as with the Internet, should vitiate long-held and inviolate principles of federal court jurisdiction. The Due Process Clause exists, in part, to give a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit. In the context of the Internet, [the defendantj’s expansive theory of personal jurisdiction would shred these constitutional assurances out of practical existence. Our sister circuits have not accepted such an approach, and neither shall we.

Multi-Tech Sys., Inc. v. VocalTec Communications, Inc., 122 F.Supp.2d 1046, 1050 (D.Minn.2000) (brackets and italics in original text; internal quotations omitted) (quoting GTE New Media Servs., Inc. v. BellSouth Corp., 199 F.3d 1343, 1350 (D.C.Cir.2000)). Because there is no evidence that any Minnesota resident has accessed the Flexsys website or that the Flexsys website targets Minnesota residents, we conclude that the website is not a contact with Minnesota supporting a finding of general jurisdiction. Thus, because Lorix has not shown that Flexsys’s out-of-state sales and its website are contacts that would “tip the balance” in favor of finding that Flexsys has continuous and systematic contacts with Minnesota, we conclude that there is no basis for the exercise of general jurisdiction over Flex-sys by Minnesota courts.

DECISION

Because Lorix has not shown sufficient contacts that would warrant the exercise of either specific or general jurisdiction over Flexsys by Minnesota courts, the district court erred by denying Flexsys’s motion to dismiss for lack of personal jurisdiction.

Reversed.

      . Under the Supreme Court decision in Illinois Brick Co. v. Illinois, indirect purchasers have no recourse under federal law. 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977). Lorix’s counsel stated at oral argument that the 18 other jurisdictions in which actions similar to this have been brought are states that permit indirect purchasers to recover for injuries as a result of violations of state antitrust law.

      . Lorix states that this estimated figure was arrived at “by comparing the value of the proportionate share of tire shipments in Minnesota with [Flexsys's] total [market] share of rubber-processing chemicals in the United States.”

      . Minn.Stat. § 325D.57 provides that "[a]ny person, any governmental body, or the state of Minnesota or any of its subdivisions or agencies, injured directly or indirectly by a violation of sections 325D.49 to 325D.66, shall recover three times the actual damages sustained, together with costs and disbursements, including reasonable attorneys’ fees.”

      . Although the record includes no information regarding the Flexsys website, Lorix alleges that Flexsys’s website promotes its products in Minnesota, asserting that the website states "Flexsys is committed to developing web applications that benefit our customers and improve business efficiency. We offer our customers fast, secure, around-the-clock on-line ordering and access to the information you want—when you want it.” Flexsys asserts, however, that its website is "aimed at no particular place in the world” and does not actually sell products to Internet users but instead gives existing customers who have user-identification numbers and passwords the ability to order online.


source: Caselaw Access Project

author:
CRIPPEN, Judge
     GORDON W. SHUMAKER, Judge,

license: Public Domain

text:
    James OLSON, et al., Respondents, v. ALEXANDRIA INDEPENDENT SCHOOL DISTRICT # 206, Appellant.
    No. A03-1104.
    Court of Appeals of Minnesota.
    June 8, 2004.

      Tracey R. Lindberg, Tracey R. Lind-berg Law Firm, P.A., Breckenridge, MN, for respondents.
    John C. Lervick, Swenson Lervick Sy-verson Anderson Trosvig Jacobson, P.A., Alexandria, MN, for appellant.
    Considered and decided by MINGE, Presiding Judge, SHUMAKER, Judge, and CRIPPEN, Judge.
   OPINION

CRIPPEN, Judge

A jury found (special verdict question # 3) that appellant school district was negligent, but (question #4) that this negligence was not the direct cause of any injury to Jamie Olson, whose claims were pursued by respondents, his parents. But the jury also found (question # 5) that $15,000 would compensate Jamie for “damages directly caused by the conduct of [appellant].” Appellant contends that these responses are consistent, and that the jury determined the amount of damages only because it was compelled to do so by the trial court’s instructions.

The trial court concluded that the jury answers were inconsistent but that they could be reconciled by entering judgment in favor of respondents in the amount of $15,000. The court first observed that verdict question # 4, on direct cause, dealt with “injury,” that question # 5 spoke of “damages,” and that question # 5 specifically included the category of “[plain, embarrassment and emotional distress,” the category chosen by the jury when it inserted the figure of $15,000. Both questions used causation language.

The court then noted that its instructions broadly referred to damages and discussed liability and damages only with use of the term injury. The court reasoned that “there was a genuine opportunity for misunderstanding” on the part of the jury—its belief that damages (question # 5) included all harm, specifically including pain, embarrassment, and emotional distress, and that injury (question # 4) did not deal with those topics.

In fact, the court determined, it was “more- reasonable” to find that this confusion occurred than to think that the jury simultaneously found that respondent “did and did not directly cause an injury.” As a result, the court concluded that question # 5 was seen to regard liability for pain and distress that occurred shortly after Jamie was assaulted by other students, but that the jury’s answer to question # 4 dealt with injuries Jamie ultimately suffered after the assault. Because this trial court analysis is sufficiently reasonable, it did not constitute an abuse of discretion and must be affirmed.

FACTS

On May 24, 2000, two middle school fellow students assaulted 15-year-old Jamie Olson in the gymnasium locker room. Jamie has below-average mental functioning and suffers from attention deficit disorder. Prior to this incident, Jamie’s mother talked to his school case manager on several occasions about her concerns that Jamie was being harassed at school because he was in special education classes.

After the assault, Jamie had contacts with the gym teacher, a health paraprofessional, and an assistant principal: The assistant principal took disciplinary action on the two boys involved in the incident, but respondents were not contacted, and there is testimony supporting their claim that Jamie’s requests to contact his mother were inappropriately neglected.

Jamie reported to his third hour class, which was also attended by one of the students involved in the locker room incident. The teacher had not been informed of the event. During class, this student made faces at Jamie that made him feel nervous and scared. Jamie testified that people were making fun of him for the rest of the day, including during lunch and on the bus ride home, and he feared another attack would occur.

When Jamie arrived home from school that day, his mother noticed that his face was swollen and she sensed that something was wrong with him. Jamie told his mother what had happened at school, and because Jamie was suffering from a headache and vomited several times, his mother took him to a medical clinic. Jamie subsequently became socially isolated and was reluctant to leave home. He refused to return to school because he feared he would be attacked again, and his mother home schooled him for the remainder of the school year. The following school year, Jamie refused to attend high school after observing one of the attackers at the school. He enrolled at an alternative school, and his social behavior improved.

At trial, expert medical testimony addressed Jamie’s fears resulting from the assault and two experts indicated that Jamie suffered posttraumatic stress disorder. One of these witnesses testified that the school’s lack of response and failure to contact respondents prolonged the traumatic event. Appellant’s expert testified that Jamie did not suffer from posttrau-matic stress disorder but from anxiety, possible depression, and an adjustment disorder.

After the jury answered the special verdict questions and the trial court entered its judgment for the school district, respondents moved for judgment notwithstanding the verdict or a new trial, arguing that the jury’s verdict was perverse and irreconcilable because the jury’s finding on damages “caused by” the school’s conduct conflicted with the jury’s earlier finding on causation. The court denied JNOV or a new trial, but granted respondents’ motion for entry of judgment for $15,000 for past pain, embarrassment, and emotional distress.

Appellant moved the court to amend its earlier order to properly reflect that it had granted JNOV in favor of respondents. In its subsequent order, the court reiterated that it had denied respondents’ motions for JNOV or a new trial, but granted them a $15,000 judgment based on its reconciliation of inconsistent jury responses.

ISSUES

1. Did the trial court err in concluding that the jury made a separate assessment of causation when it awarded damages in question # 5 of the special verdict form?

2. Did the trial court err in awarding respondents expert-witness fees?

ANALYSIS

I.

A trial court’s determination that jury findings are consistent is sometimes but not generally a question of law that appellate courts review de novo. Haugen v. Int’l Transport, Inc., 379 N.W.2d 529, 531 (Minn.1986). When a jury finds that one defendant in a negligence action did not cause the plaintiffs damages but then apportions a percentage of liability to that defendant, the inconsistency in the special verdict answers can be analyzed as a matter of law. Id.

When answers to special verdict questions are correctly declared inconsistent, they are to be reconciled in any reasonable manner consistent with the evidence and its fair inferences. Reese v. Henke, 277 Minn. 151, 155, 152 N.W.2d 63, 66 (1967). The trial court has broad discretion to construe an inconsistent verdict to effect the intention of the jury and to harmonize answers if possible. Hampton Bank v. River City Yachts, Inc., 528 N.W.2d 880, 892 (Minn.App.1995), review denied (Minn. Apr. 27,1995).

The scope of the trial court’s discretion to analyze inconsistent answers includes rendering judgment against the party having the burden of proof, ordering a new trial, sending the jury back for further deliberations, or reconciling the inconsistent answers by interpreting them or partially directing a verdict to change the jury’s response as a matter of law. Musicland Group, Inc. v. Ceridian Corp., 508 N.W.2d 524, 534 (Minn.App.1993), review denied (Minn. Jan. 27,1994). A trial court has “the same authority to set aside and change an answer to a question in a special verdict as it has to grant judgment notwithstanding the verdict, that is, where the evidence requires the change as a matter of law.” Orwick v. Belshan, 304 Minn. 338, 343, 231 N.W.2d 90, 94 (1975).

In determining whether the jury’s answers are inconsistent, we are presented with three possible outcomes. First, as appellant suggests, the court could conclude that the jury’s answers are consistent and determine as a matter of law that appellant is not liable. Second, as respondents suggest, the court could find merit in the trial court’s analysis. Third, as noted by respondents, the court could recognize that the jury’s answers are inconsistent and remand for a new trial. We conclude that the trial court properly determined that the jury’s answers are inconsistent and did not abuse its discretion in reconciling the inconsistency.

II.

Appellant argues that the verdict answers are consistent because the trial court instructed the jury to answer the damages questions regardless of its answers to the negligence and causation questions. Appellant claims that these questions are no different than those on a special verdict form in an automobile accident case. See 4A Minnesota Practice, CIVJIG Spec. Verdict Form No. 65.90 (2004).

CIVJIG Spec. Verdict Form No. 65.90 instructs the jury that it must answer the damages question regardless of its answers to any of the other questions on the form. Generally, the damages question asks the jury to determine the amount of money that will compensate the plaintiff for damages directly caused “by the accident.” But here the damages question asks for an amount to compensate Jamie Olson for damages directly caused “by the conduct of Independent School District # 206 on May 24, 2000[.]”

Significantly, the language of this damages question was specifically requested by appellant. Although appellant was reasonably concerned about the jury including damages that were attributable to Jamie’s fellow students, a different selection of language would have prevented the present conflict.

Under the circumstances, the trial court properly determined that the jury’s answers were inconsistent.

III.

The trial court explained its resolution of inconsistent answers by noting that the jury most likely intended to indicate that Jamie Olson suffered “some immediate pain, embarrassment and emotional distress” as a result of action or inaction by school staff, but that negligence by staff “was not the cause of Jamie’s ongoing problems.” The court reasoned that the jury might have understood that the “injury” in the causation question referred to posttraumatic stress disorder and other ongoing problems. Or the jury may have thought that injury was linked to physical injuries resulting from the assault.

The trial court did not instruct the jury on the definition of “injury” and gave a broad definition of damages, which might reasonably have been found, as indicated in the language of special verdict question # 5, to include pain, embarrassment, and emotional distress. It was equally reasonable for the trial court to associate this finding with evidence on the effects of the immediate response by the school staff.

We conclude that it was within the scope of the trial court’s exercise of discretion to find that it was reasonable for the jury to conclude, indicating the jury’s intentions that “damages,” specified in its answer to question # 5, meant something different than “injury.” Similarly, the trial court did not err in determining that this reading of the verdict was more reasonable than a finding that the jury meant to say both that injuries were and were not caused by appellant.

Case precedent lends support for the trial court’s reconciliation. See Meinke v. Lewandowski, 306 Minn. 406, 237 N.W.2d 387 (1975). In Meinke, the jury concluded that one defendant’s negligence, not the plaintiffs or another defendant’s negligence, was the direct cause of plaintiffs injuries. Nonetheless, the jury apportioned 10% of the fault to the plaintiff and 20% to the other defendant. Meinke, 306 Minn. at 409, 237 N.W.2d at 390. The trial court directed the jury to resolve the inconsistency by changing its answer on the apportionment question. The Minnesota Supreme Court concluded that the trial court infringed on the jury’s factfinding function and remanded for a new trial. While Meinke involves an apportionment case, it is relevant to show that a trial court errs when it ignores a damages question that is inconsistent with the negligence and causation questions.

The evidence in this case would have supported a jury verdict in favor of appellant or respondents. Evidence indicated that the school failed to call respondents or instruct Jamie’s teachers of the incident, and the jury found that the school district was negligent. Further, although one expert opined that Jamie suffered from a fear of the alleged perpetrators, another found that the school district’s lack of a response and failure to contact respondents enlarged the traumatic event. Two experts found that Jamie suffered a post-traumatic stress disorder. There was sufficient evidence to support a jury verdict that found that the school district caused some damages.

Finally, appellant’s analysis tends to complement that of the trial court. In its brief, appellant calls for letting the verdict stand on the finding of no causation, but quotes the court’s reconciliation explanation and acknowledges that it correctly explains that the finding of no causation was meant to address Jamie’s ongoing problems. Contrary to appellant’s conclusion, the trial court reasoned that its theory gave effect to both the negligence causation answer and the finding that the school district directly caused $15,000 in damages to Jamie. We conclude that the trial court did not abuse its discretion in reconciling the inconsistent jury answers.

IV.

Appellant also argues that the trial court erred by awarding respondents $8,065 in expert witness fees because the witness included compensation for preparation time. An appellate court reviews a trial court’s award of costs and disbursements, including expert-witness fees, for an abuse of discretion. Kellar v. Von Holtum, 605 N.W.2d 696, 703 (Minn.2000) (costs and disbursements in general); Carpenter v. Mattison, 300 Minn. 273, 280, 219 N.W.2d 625, 631 (1974) (expert-witness fees). The court is authorized to allow such fees or compensation as may be just and reasonable for expert witnesses. Minn.Stat. § 357.25 (2002). And contrary to appellant’s contention, the court may, in its discretion, “allow pretrial preparation time in awarding just and reasonable” compensation under Minn.Stat. § 357.25. Quade & Sons Refrigeration, Inc. v. Minnesota Min. & Mfg. Co., 510 N.W.2d 256, 260-61 (Minn.App.1994), review denied (Minn. Mar. 15, 1994); Minn. R. Gen. Pract. 127. We find no reversible error in the inclusion or valuation of the expert’s fees preparation time.

DECISION

Because of the specific language used in the damages questions in this case, the trial court properly concluded that the jury’s answers were inconsistent. The court did not abuse its discretion in determining that this inconsistency could be reconciled by giving effect to all of the jury’s answers and entering judgment in favor of respondents in the amount of $15,000.

Affirmed.

GORDON W. SHUMAKER, Judge,

(dissenting).

I respectfully dissent and write separately to suggest the inappropriateness of the trial court’s resolution of the verdict issue and to note the uselessness of having juries answer damages questions after they have decided that defendants are not liable for damages.

I do not quarrel with the fact that the inartful wording of Question # 5 created a predictable, apparent inconsistency in the verdict because it seemed to reintroduce a causation issue after causation had been definitively decided in Question # 4.

But, in resolving the apparent inconsistency, the trial court lost sight of the fact that Question # 5 is not a causation question but rather is a damages question. There is no tenable basis for thinking the jury was answering liability causation questions twice or that it purposely contradicted itself. In Question #4, the jury said that the school district’s conduct was not a direct cause of “any injury” to Olson. Did the jury then, in the very next question, contradict itself and say that the school district nevertheless directly caused $15,000 in damages to Olson? I think that is a very skewed reading of the verdict.

The case ended when the jury clearly found in Question # 4 that the school district’s conduct did not directly cause any injury to Olson. The damages questions then became superfluous and no longer controlled the outcome of the case. The effect of the court’s interpretation of Question # 5 was to give the jury two opportunities to find causal liability'—one through the straightforward Question # 4 and one through a question that seemed to be asking about damages rather than liability. I know of no authority that provides a jury with more than one chance to answer liability questions on a special verdict. Thus, the court should not resolve this apparent inconsistency by ignoring the true liability question in favor of the “hidden” liability question. If the court cannot resolve the issue in favor of the school district, as I believe it should, then it ought to grant the parties a new trial.

My second concern is that there is neither authority nor good reason for requiring a jury to answer damages questions after it clearly finds that a party has no liability for damages. I am aware that the JIG special verdict form carries that directive. But the JIG verdict form is not the law; rather it is merely a guide, and I have been unable to locate either decisional authority or a rule requiring damages answers after a finding of no liability. Thus, I suggest the practice has become customary but is not at all required.

The likely purpose of having the jury answer damages questions after it has found no liability is the thought that, if there is an appeal and a reversal, the whole case will not have to be retried. Perhaps only the liability issue would have to be retried and the damages determination can stand. This is surely a good theory but is not plausible in practice. I suggest that when the jury knows that the damages answers do not count, it really does not invest the time and attention it should to reach a meaningful assessment of damages. Additionally, as this case illustrates, by having the jury answer a superfluous damages question, the trial court runs the risk of creating needless posttrial and appellate issues.

I would not let the result the trial court reached stand but would reverse and remand for a new trial.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.


author: CRIPPEN, Judge.

text:
    Daniel OLDAKOWSKI, et al., Appellants, v. M.P. BARRETT TRUCKING, INC., Respondent.
    No. A03-1557.
    Court of Appeals of Minnesota.
    June 8, 2004.

      Kevin S. Carpenter, Carpenter Injury Law Office, St. Cloud, MN, for appellants.
    Frank J. Rajkowski, Rajkowski Han-smeier Ltd., St. Cloud, MN, for respondent.
    Considered and decided by MINGE, Presiding Judge, SHUMAKER, Judge, and CRIPPEN, Judge.
   OPINION

CRIPPEN, Judge.

In proceedings on their claims arising out of the owner/operator’s acts in unloading and stacking bales of hay the owner/operator had hauled, appellants contend the district court erroneously limited the liability of the motor carrier who leased the trucking equipment. The court granted summary judgment in favor of the carrier, concluding that the hauling contract extended only to the delivery of the bales, and that the stacking, as well as the unloading, were done by the owner/operator as a personal favor to the customers. Because, as appellants assert, there are genuine issues of material fact as to the scope of the hauling contract, we reverse and remand for trial.

FACTS

Appellants are Daniel Oldakowski and his wife, Deanna. Daniel and his brother, Gordon Oldakowski (the Oldakowskis), hired Eric Scholl to haul a load of baled hay to the Oldakowski farm. The Olda-kowskis had a longstanding relationship with Scholl, who rented a house and a small farm from them. Scholl owned and operated a freight truck and had a leasing contract with respondent M.P. Barrett Trucking, Inc. (Barrett), a company co-owned by Scholl’s father.

On July 19, 1999, Scholl hauled over 60 large rectangular bales of hay to the Olda-kowski farm. The farmer selling the bales loaded them onto Scholl’s trailer bed without any help from Scholl or Gordon Olda-kowski, who accompanied Scholl on the trip. On the return trip to the Oldakowski farm, the two discussed how the bales should be unloaded. No such conversation took place between Dan Oldakowski, his brother, Scholl, or anyone from Barrett prior to the truck’s arrival at the farm. The Oldakowskis had recently purchased a skid-steer loader and planned to use that to unload the bales from the trailer. Because the Oldakowskis were not familiar with the loader, they asked Scholl to drive it and unload the bales.

Although Gordon Oldakowski testified at his deposition that he did not expect Scholl would unload the bales, he admitted that he asked him to do so without any thought as to what, if any, the charge would be. Gordon also admitted that because of their long history with Scholl, there were occasions in the past when Scholl had done work for them without expecting payment.

Scholl agreed to unload the bales. The Oldakowskis directed Scholl to stack the bales five high and indicated where to stack them. During the unloading and stacking process, several bales fell onto Dan Oldakowski, injuring his right leg, left hip, left wrist, and face.

Appellants initiated a lawsuit against respondent Barrett, alleging that it was vicariously responsible for Scholl’s negligence in stacking the bales because Scholl was acting as Barrett’s employee at the time of the accident. Barrett denied that Scholl was acting on its behalf at the time and alleged that during the unloading process Scholl was under the sole direction of the Oldakowskis.

After discovery, Barrett moved for summary judgment, arguing that it was not liable for injuries that did not result from the operation of the leased equipment. Barrett further argued that because Scholl was an independent contractor, it was not liable for his actions. Appellants opposed this motion and moved for partial summary judgment, asking the district court to find that, as a matter of law, Barrett was vicariously liable for Scholl’s actions.

The district court denied appellants’ motion for partial summary judgment and granted Barrett’s motion, dismissing appellants’ claims with prejudice. The court reasoned that the Oldakowskis contracted with Scholl to haul the bales from the seller’s farm to the Oldakowski farm, and that the contract was fulfilled when the trailer arrived at the Oldakowski farm. Under case law and the leasing contract between Barrett and Scholl, the court determined that Barrett would be liable for the injury only if it had occurred when the tractor-trailer was being used in furtherance of Barrett’s business. And because the court determined that unloading was a personal favor that Scholl performed for the Oldakowskis, it was outside the scope of his contract with Barrett, and Barrett was not liable to appellants for any negligence on Scholl’s part. The court also found that even if unloading the trailer was part of the business with Barrett, it was Scholl’s personal favor to stack them as instructed by the Oldakowskis.

ISSUE

Did the district court err in granting summary judgment to Barrett?

ANALYSIS

When reviewing a summary judgment, this court asks whether there are any genuine issues of material fact and whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). We must view the evidence in the light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993).

The district court granted summary judgment for Barrett because it found that, as a matter of law, Barrett could not be vicariously liable for Scholl’s actions under any theory advanced by appellants. The court determined that Scholl agreed to unload and stack the bales as a personal favor to the Oldakowskis, rather than in the course of his business with Barrett, and that Barrett’s liability ended with the delivery of the bales to the Oldakowski farm.

Whether Scholl was Barrett’s employee or an independent contractor, the leasing agreement between them created a master/servant relationship and Barrett is, in some cases, liable for Scholl’s actions. See Gackstetter v. Dart Transit Co., 269 Minn. 146, 149, 130 N.W.2d 326, 328 (1964). If Scholl was-acting within the scope of his employment with Barrett, his alleged negligence may be imputed to Barrett. See id. This court has determined that there is “no hard and fast rule to resolve the scope of employment inquiry; rather, each case must be decided on its own individual facts.” Mensing v. Rochester Cheese Express, Inc., 423 N.W.2d 92, 94 (Minn.App.1988). To find that the employee’s actions were within the scope of employment, the employee must have been acting primarily for the benefit of the employer. Id. at 95. If, at the time of the alleged negligence, Scholl was acting in pursuit of a personal interest, Barrett is not liable. See Gackstetter, 269 Minn. at 150, 130 N.W.2d at 329.

Barrett argues that the act of unloading the bales did not involve the operation of the leased equipment, and it may only be liable for injuries incurred during the use of that equipment. Barrett argues that because Scholl was not actually operating the tractor-trailer at the time of the alleged negligence, vicarious liability cannot attach.

Clearly, had Scholl been driving the tractor-trailer at the time of the alleged negligence, Barrett would be liable for Scholl’s actions under the leasing, agreement. See id. at 149-50, 130 N.W.2d at 328-29; Mensing, 423 N.W.2d at 94. But there is nothing in these cases or others stating that the carrier’s liability, if not specifically restricted by its contract with the operator, must be limited to negligence arising out of the actual operation of the leased equipment. The leasing contract between Scholl and Barrett limits liability to equipment uses in the furtherance of Barrett’s business, but it does not confine liability to the actual operation of the equipment. Further, the contract provides for the fact that Scholl may at times perform loading or unloading services as part of a hauling agreement with a shipper. If the act of unloading is at times part of the agreement between a shipper and Barrett, then Barrett’s liability should extend to that action as well as the direct operation of the leased equipment.

The leasing' contract between Barrett and Scholl gives Barrett exclusive possession, control, and use of Scholl’s equipment for the duration of the contract. Although the contract specifies that Scholl is not Barrett’s agent and does not have authority to bind Barrett, it also specifies that it is Scholl’s responsibility to determine the means and method of performing each hauling service and to complete that service diligently and on time. Completion of the service may include “loading and unloading at times requested by the shipper.” This evidence suggests that the parties contemplated that Scholl would have the authority to unload the bales at the request of the customer, the • Oldakowskis, while still within the scope of his employment with Barrett. This evidence is also sufficient to permit the finding that stacking was merely part of the unloading of bales.

It is clear from the record that the initial hauling agreement between Scholl and the Oldakowskis did not include loading and unloading the bales from the trailer. Both Dan and Gordon Oldakowski admitted in their depositions that prior to Scholl’s arrival, they assumed they would unload the bales themselves, and it would not be part of the hauling agreement with Barrett. Scholl also stated that he had not thought he would be unloading the bales until Gordon Oldakowski asked him to do so.

Thus, if Scholl unloaded the bales as part of the hauling agreement the Olda-kowskis had with Barrett, he at some time expanded that agreement from its original scope. And some evidence suggests that unloading the bales was, as the district court found, a personal favor to the Olda-kowskis. For example, Scholl used the Oldakowskis’ skid-steer loader to unload and stack the bales, and Scholl and the Oldakowskis discussed the manner of stacking. Scholl also had a longstanding personal relationship with the Oldakowskis and rented property from them.

Viewing the evidence in the light most favorable to appellants, we conclude that there is a genuine issue of material fact as to whether unloading and stacking the bales was or became a part of the hauling agreement between Barrett and the Olda-kowskis. This fact question is affected by (1) the lack of payment for the unloading and stacking service; (2) Scholl’s use of the Oldakowskis’ skid-steer loader; (3) the involvement of the Oldakowskis in the unloading process; (4) the personal relationship between Scholl and the Oldakowskis; and (5) the parties’ expectations at the outset of the hauling agreement. But the fact question also is affected by evidence that Scholl was regularly hired to perform hauling services for the Oldakowskis and had an interest in both his personal and professional relationship with them, all of which may suggest to a jury that the work was not a personal favor but rather an extension of the agreement to haul the bales. Because there is a genuine issue of material fact as to whether unloading and stacking the bales was included in the hauling agreement or was a personal favor by Scholl, we must reverse the district court’s ruling that, as a matter of law, Barrett is not liable for Scholl’s actions, and remand for trial.

DECISION

Because there is a genuine issue of material fact as to whether Scholl unloaded bales as a part of the hauling agreement between Barrett and the Oldakowskis, or as a personal favor to the Oldakowskis, we reverse the district court’s grant of summary judgment to Barrett and remand for trial.

Reversed and remanded.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.


author: MARING, Justice. KAPSNER, Justice,

text:
    2004 ND 104
    Sandra DUMA, Plaintiff and Appellant v. Shawn KEENA, Todd Keena, and Laurie Keena, Defendants and Appellees.
    No. 20030302.
    Supreme Court of North Dakota.
    June 3, 2004.
    Robert V. Bolinske, Bismarck, ND, for plaintiff and appellant.

      William C. Severin, Severin, Ringsak & Morrow, Bismarck, ND, for defendants and appellees.
   MARING, Justice.

[¶ 1] Sandra Duma appeals a judgment entered upon a jury verdict, ordering that Duma take nothing, dismissing the action on the merits, and granting the defendants costs and disbursements. We affirm.

I

[¶ 2] Duma was a passenger in a car driven by John Adams. She was injured when the car driven by Adams was in an accident with a car driven by Shawn Kee-na. Duma sued Keena for negligence, alleging Keena failed to yield the right-of-way. One of Keena’s defenses was that Duma would have reduced or mitigated her damages had she been wearing a seat-belt. Duma argued she was initially wearing a seatbelt, but it came unbuckled during the accident.

[¶ 3] During deliberations, the jury submitted a question to the judge. The jury wrote, “[pjlease clarify question 5[.] Does question 5 ask if Sandra Duma is at fault for the accident or at fault for her injuries[?]” The trial judge responded that “[qjuestion 5 asks if Sandra Duma is at fault for the accident.” The jury filled out the special verdict form as follows:

QUESTION 1:
Does the greater weight of the evidence establish that Defendant Shawn Keena was at fault?
YES
If you answered Question 1 “NO”, sign and return this verdict. If you answered Question 1 “YES”, then answer Question 2.
QUESTION 2:
Was the fault of Defendant Shawn Kee-na, a proximate cause of Sandra Duma’s alleged injuries?
YES
If you answered Question 2 “NO”, sign and return this verdict. If you answered Question 2 ‘TES”, then answer Question 3.
QUESTION 3:
Does the greater weight of the evidence establish that John Adams was at fault?
YES
If you answered Question 3 “NO,” then go to Question 5. If you answered Question 3 “YES,” then answer Question 4.
QUESTION 4:
Was the fault of John Adams a proximate cause of Sandra Duma’s alleged injuries?
YES
QUESTION 5:
Was the Plaintiff Sandra Duma at fault?
NO
If you answered Question 5 “NO,” then go on to Question 7. If you answered Question 5 ‘TES,”, then answer Question 6.
QUESTION 6:
Was the fault of Sandra Duma a proximate cause of her alleged injuries?
NO
QUESTION 7:
Taking all of the fault that proximately cause the plaintiffs’ damages as 100%, what percentage of fault do you attribute to:
Shawn Keena 60%
John Adams 40%
Sandra Duma 0%
Total 100%
QUESTION 8:
What amount of money will fairly compensate the plaintiff for:
Past economic damages $10,000
Future economic damages $ 0
Past non-economic damages $ 5,000
Future non-economic damages $ 0
QUESTION 9-A:
Was Sandra Duma wearing a seat belt?
NO
If you answered Question 9-A “NO,” then answer Question 9.
QUESTION 9:
What, if any, percentage of her injuries would have Sandra Duma avoided if she had used a seat belt and shoulder harness?
100%
QUESTION 10:
Should the plaintiff be awarded interest on the damages?
NO
QUESTION 11:
If you answered Question 9 “YES,” what rate of interest should be used (subject to a maximum of 6%)?
0%

[¶ 4] The trial court entered judgment ordering that Duma take nothing, dismissing the action on the merits, and granting the defendants costs and disbursements. Duma appeals the judgment.

II

[¶ 5] Duma argues the jury’s special verdict is inconsistent and cannot be reconciled. Duma argues it is inconsistent for the jury in Question 6 to find Duma was not the proximate cause of her injuries but in Question 9 find she could have avoided 100 percent of her injuries had she worn a seatbelt. Additionally, Duma argues it is impossible to determine if the jury’s answer to Question 9-A found that she was not wearing a seatbelt or that she initially wore her seatbelt and it came unbuckled in the accident. We disagree.

A

[¶ 6] We will uphold “special verdicts on appeal whenever possible and set aside a jury’s special verdict only if it is perverse and clearly contrary to the evidence.” Moszer v. Witt, 2001 ND 30, ¶ 11, 622 N.W.2d 223. The test for reconciling apparent conflicts in a jury’s verdict is:

[Wlhether the answers may fairly be said to represent a logical and probable decision on the relevant issues as submitted. If after a review of the district court’s judgment no reconciliation is possible and the inconsistency is such that the special verdict will not support the judgment entered below or any other judgment, then the judgment must be reversed and the case remanded for a new trial.

Id. (quotation omitted) (emphasized in original). “We reconcile a verdict by examining both the law of the case and the evidence to determine whether the verdict is logical and probable or whether it is perverse and clearly contrary to the evidence.” Id. at ¶ 11. “Reconciliation of a verdict, therefore, includes an examination of both the law of the case and the evidence in order to determine whether the verdict is logical and probable and thus consistent, or whether it is perverse and clearly contrary to the evidence.” Barta v. Hinds, 1998 ND 104, ¶ 6, 578 N.W.2d 553 (quotation omitted). We note that our review of the evidence presented to the trial court is limited because no transcript was provided on appeal except a partial transcript of a proceeding outside the presence of the jury concerning the special verdict form. See State v. Roth, 2004 ND 23, ¶ 27, 674 N.W.2d 495 (stating that failure to provide this Court with a transcript on appeal may prevent the appellant from being successful).

[¶ 7] The parties received the jury instructions and special verdict form and had an opportunity to object to them. In fact, Duma’s counsel requested Question 9-A be added in order to clarify the verdict form. On appeal, Duma does not raise any issues regarding the jury instructions; therefore, those unopposed instructions become the law of the case. Comstock Const., Inc. v. Sheyenne Disposal, Inc., 2002 ND 141, ¶ 12, 651 N.W.2d 656.

[¶ 8] The jury instruction in this case treats seatbelt use as a mitigating factor to reduce damages. The jury was instructed:

USE OF SEATBELT
Evidence was presented from which you could find that the plaintiff was not using an available seatbelt and shoulder harness at the time of the accident. If you find (1) that it was unreasonable for the plaintiff not to use the seatbelt and shoulder harness and (2) that the plaintiff would not have received some or all of her injuries had she worn a seat belt and shoulder harness, then (3) the amount of damages awarded the plaintiff for the injuries she sustained, if any, must be reduced in proportion to the amount of injury she would have avoided by the use of a seatbelt and shoulder harness.
The burden of proof on both (1) and (2) rests with the defendant.

[¶ 9] In Halvorson v. Voeller, we examined helmet use while riding a motorcycle, a situation similar to wearing a seatbelt while riding in a car. 336 N.W.2d 118 (N.D.1983). We specifically held that helmet use is “relevant to the issue of damages” but “has no relevance to the issue of liability for causing the accident.” Id. at 119. We stated that “if damages are capable of reasonable apportionment to separate causes, it should make no difference whether the plaintiffs negligence in aggravating his injuries preceded or succeeded the defendant’s negligence.” Id. at 120. In Halvorson, we gave an example jury instruction, which we held a trial court is warranted in giving:

If you find (1) it was unreasonable for the plaintiff to not wear a helmet, and (2) the plaintiff would not have received some or all of his injuries had he worn a helmet, then (3) the amount of damages awarded the plaintiff for the injuries he sustained must be reduced in proportion to the amount of injury he would have avoided by the use of a helmet. The burden of proof on both (1) and (2) rests with the defendant.

Id. at 121 (footnote omitted).

[¶ 10] The unopposed jury instruction for the use of a seatbelt in the present case is essentially identical to our suggested jury instruction on use of a helmet in Halvorson. As in Halvorson, Duma’s failure to wear a seatbelt, while not the cause of the accident, is relevant to her damages according to the “use of seatbelt” instruction. Therefore, the jury was instructed to treat the use of a seatbelt as a mitigating factor to reduce damages, and that instruction is the law of the case.

B

[¶ 11] Duma points to language in Hal-vorson calling helmet nonuse “antecedent negligence” and argues that based on the special verdict form, the jury possibly addressed Duma’s negligence for failing to wear a seatbelt in its answer to Question 6. Duma also argues the special verdict form could be read to find that the jury took Duma’s failure to wear a seatbelt into consideration in Question 7 when it determined what percentage of fault to attribute to her. Further, Duma argues it is possible the jury meant to award her $15,000, regardless of its answers to the seatbelt questions.

[¶ 12] The jury should not have answered Question 6. It was instructed to skip Question 6 if it answered “no” to Question 5. Question 6 asked if the fault of Sandra Duma was a proximate cause of her injuries, rather than the proximate cause of the accident. The jury answered Question 6 “no.” However, a special verdict question cannot be examined in a vacuum. We must look to the entire special verdict form and the jury instructions to determine whether an inconsistency exists. Moszer, 2001 ND 30, ¶ 11, 622 N.W.2d 223.

[¶ 13] In this case, Question 6 is clearly linked to Question 5. It is logical and probable, based on the jury instructions, that the jury concluded Questions 5 and 6 asked it to determine Duma’s fault for causing the accident, not her fault for failing to mitigate her injuries by wearing a seatbelt. The jury’s question to the trial judge during deliberations supports our conclusion that the jury found Questions 5 through 7 asked them strictly about the negligence and damages relating to the accident, not about the effect Duma’s failure to wear a seatbelt had on her recovery for her injuries. The jury wrote, “[p]lease clarify question 5[.] Does question 5 ask if Sandra Duma is at fault for the accident or at fault for her injuries!?]” The trial judge responded that “[q]uestion 5 asks if Sandra Duma is at fault for the accident.” It is also logical and probable, based on the record, that the jury found Question 7 asked it to determine Duma’s percentage of fault for the accident, not fault for failure to wear a seatbelt. The “use of seat-belt” instruction given in this case without objection requires the jury to reduce the damages they previously determined in proportion to the injury Duma could have avoided if she had been wearing a seatbelt. “A jury is generally presumed to follow instructions given by the trial court,.... ” State v. Ellis, 2001 ND 84, ¶ 23, 625 N.W.2d 544. The jury followed the instruction and found in answer to Questions 9-A and 9 that Duma was not wearing a seatbelt and could have avoided 100 percent of her injuries if she had been wearing one.

[¶ 14] We conclude the jury’s special verdict was not perverse or clearly contrary to the evidence based on the jury instructions which became the law of the case. It is logical and probable that the jury found Duma was not at fault for the accident but that had she worn a seatbelt, 100 percent of her injuries could have been avoided.

III

[¶ 15] During oral argument, Duma alluded to the issue of whether separating the questions of negligence and mitigation is inappropriate under our comparative fault law. This issue was not raised before the trial court, and we will not address an argument raised for the first time on appeal. Peters-Riemers v. Riemers, 2002 ND 49, ¶ 9, 641 N.W.2d 83.

IV

[¶ 16] We affirm the judgment entered upon a jury verdict, ordering that Duma take nothing, dismissing the action on the merits, and granting the defendants costs and disbursements.

[¶ 17] GERALD W. VANDEWALLE, C.J., and DALE V. SANDSTROM, JJ., concur.

KAPSNER, Justice,

concurring in the result.

[¶ 18] I reluctantly concur in the result. Only under the doctrine of the law of the case is this result affirmable. Comstock Constr., Inc. v. Sheyenne Disposal, Inc., 2002 ND 141, ¶ 12, 651 N.W.2d 656.

[¶ 19] I am concerned the majority opinion leaves the impression that the methods used in Halvorson v. Voeller, 336 N.W.2d 118 (N.D.1983), based upon the law as it existed in 1983, is the correct method of assessing fault and the right to recover for injury after the adoption of N.D.C.C. §§ 32-03.2-01 to 32-03.2-02 in 1987. The result in this case points out the importance of correct jury instructions and the requirement that the trial court apply the law applicable at the time of Duma’s injury. Although it was not done here, Duma failed to demonstrate she preserved the right to a new trial by making the proper objections.

[¶ 20] Duma asserts the jury’s answers to the special verdict form are inconsistent and cannot be reconciled. Applying our modified comparative fault law in effect since 1987, I would agree. The jury allocated no fault to Duma and yet found 100% of her injuries could have been avoided had she worn her seat belt. On that basis, judgment was entered that she take nothing. Under the principles of modified comparative fault, articulated in N.D.C.C. § 32-03.2-02, those answers and that result are irreconcilable. Current law, however, is not the law that was applied in this case. Unfortunately, Duma has failed to preserve proper objections to challenge the validity of the jury verdict.

[¶ 21] The trial court and trial counsel treated Halvorson as if the method applied in that case survived the 1987 adoption of modified comparative fault. N.D.C.C. § 32-03.2-02. The jury was instructed in a manner that intermixed current negligence law applying modified comparative fault and prior negligence law in which an injured party’s failure to avoid injury or to mitigate damages was separately considered and served as a separate basis to eliminate the right to recover damages. Only under such a regime can the result in this case be considered logical and probable.

[¶ 22] Section 32-03.2-02, N.D.C.C., provides in part:

Contributory fault does not bar recovery in an action by any person to recover damages for death or injury to person or property unless the fault was as great as the combined fault of all other persons who contribute to the injury, but any damages allowed must be diminished in proportion to the amount of contributing fault attributable to the person recovering. The court may, and when requested by any party, shall direct the jury to find separate special verdicts determining the amount of damages and the percentage of fault attributable to each person, whether or not a party, who contributed to the injury. The court shall then reduce the amount of such damages in proportion to the amount of fault attributable to the person recovering.... Under this section, fault includes negligence, ... failure to avoid injury,....

[¶ 23] Under modified comparative fault, all fault which contributes to the injury must be weighed by the jury. N.D.C.C. § 32-03.2-02 (emphasis added). Fault specifically includes “failure to exercise reasonable care to avoid an injury or to mitigate damages.” N.D.C.C. § 32-03.2-01; NDJI C—2.80. Under modified comparative fault, the jury does not first determine who was at fault for the accident and, later and separately, determine if the injury could have been avoided by the injured person. All of the contributing factors to the injury are weighed together for purposes of allocating percentages of fault. “The law makes no distinction between accident-causing fault and injury-causing fault. If you find fault, you must allocate the fault on a percentage basis between all persons legally responsible for such fault, whether they are or ever were parties to this lawsuit.” NDJI C—2.84.

[¶ 24] The special verdict form was not the problem in this case. Rather, the instructions given to this jury were hopelessly confusing and the response the trial judge gave to the question asked by the jury only added to the jury’s misunderstanding of how to consider fault. On the one hand, the jury received an instruction on comparative fault following current law:

You will return a special verdict in which you will make special findings of fact determining:
1) who was at fault, if anyone;
2) whether such fault was a proximate cause of damages;
8) the respective percentages of fault allocated to the defendant, the plaintiff or anyone else who contributed to proximately cause any damages;
4) the amount of plaintiffs damages without reduction for fault.
The Court will determine from your special verdict form the amount of damages, if any, which are recoverable.

However, this jury was also instructed:

It is the duty of a person who has been injured in person or property to exercise ordinary care to avoid loss or minimize the resulting damages. One who fails to do so cannot recover damages for any injury that could have been prevented by the exercise of ordinary care.

And in closing instructions, the jury was told, under an instruction that was adapted from Halvorson and correct in 1983 when that cáse was decided:

Evidence was presented from which you find that the plaintiff was not using an available seatbelt and shoulder harness at the time of the accident. If you find (1) that it was unreasonable for the plaintiff not to use the seatbelt and shoulder harness and (2) that the. plaintiff would not have received some or all of her injuries had she worn a seat belt and shoulder harness, then (3) the amount of damages awarded the plaintiff for the injuries she sustained, if any, must be reduced in proportion to the amount of injury she would have avoided by the use of a seatbelt and shoulder harness.

These contradictory instructions, taken from different stages in the development of North Dakota law, suggest the failure to use a seat belt negates any right to recover without first determining whether Duma’s failure was fault and, if so, whether that fault exceeded the fault of others who contributed to her injuries.

[¶ 25] The jury’s question indicated it was confused by the instructions. It specifically asked: “Please clarify question 5. Does question 5 ask if Sandra Duma is at fault for the accident or at fault for her injuries.” The court responded: “Question 5 asks if Sandra Duma is at fault for the accident.” The jury’s question should have alerted both counsel and the court that the instructions either were confusing or did not accurately describe the law of modified comparative fault. Instead, the trial court compounded the problem, apparently without objection from counsel, by telling the jury to focus on fault for the accident, rather than the injury. Because appellant has not supplied a transcript, appellant has failed to demonstrate that she properly objected to the court’s response to the jury’s question. This misinformation given by the trial court explains a jury finding no fault on the part of Duma, even though there is a finding that 100% of her injuries could have been avoided by use of the seat belt.

[¶ 26] Unfortunately, Duma tried this case under pre-1987 law without objection. The doctrine of the law of the case requires the result reached by the majority.

[¶27] WILLIAM A. NEUMANN, J., concurs.