text:
    STATE of Minnesota, Respondent, v. Ryan Michael PEDERSON, Appellant.
    No. C0-99-450.
    Supreme Court of Minnesota.
    July 20, 2000.

      Deborah K. Ellis, St. Paul, for appellant.
    Michael A. Hatch, St. Paul, Robert M. A. Johnson, Marcy S. Crain, Anoka, for respondent.
   OPINION

BLATZ, Chief Justice.

This case comes to us on direct appeal of appellant Ryan Michael Pederson’s convictions for first-degree murder committed in the course of a burglary and second-degree murder. Appellant appeals his convictions on two grounds. First he claims that a juror’s responses to a post-trial jury questionnaire demonstrate that she did not accord him the presumption of innocence and that she lied during voir dire when she stated that she would uphold the law. Second, appellant argues that the evidence was insufficient to sustain his convictions. In particular, he contends that uncorroborated accomplice testimony provided the only evidence of an entry for the purpose of committing a burglary, and the only evidence that appellant participated in the murder. Because we hold that the juror’s post-trial statements are inadmissible under Minn. R. Evid. 606(b), and the accomplice testimony was corroborated by other witness testimony and the physical evidence, we affirm appellant’s convictions.

Robert Anderson, a 32-year-old man, was found dead by his best friend on the evening of August 20, 1997, after the friend made numerous attempts to contact him that day. Officers called to the scene found Anderson lying face down on the floor of his mobile home in a pool of blood, partially covered by a blanket. His injuries were consistent with being repeatedly beaten with a blunt object, kicked, stomped, and stabbed. He had no defensive wounds, a blood alcohol level of .18, and tested positive for recent marijuana use.

Anderson’s poodle, found guarding the body, had a bruised abdomen. Also near the body were the broken pieces of a long-barreled rifle, blood spatter, the handle of a steak knife, and two sets of bloody shoe prints. One of the prints, which had an athletic tread design consisting of a uniformly spaced and linear dot pattern, was similar to a print found by the medical examiner on the victim’s back. Blood from the victim was found on the sofa, under the counter, on the walls, and on the ceding. The mobile home was in disarray, but that was characteristic of the way the victim lived. No identifiable fingerprints were found in the home.

Six’ days later, the police responded to a report that someone was breaking into Anderson’s mobile home, which was still posted as a crime scene. The arriving officer observed a man carrying a chair between Anderson’s home and a mobile home next door owned by Stephen Dean. The officer pursued the man into Dean’s mobile home where he found appellant, Dean, Anthony Moses, and three others who admitted they had been peeking into Anderson’s mobile home. Everyone was arrested and taken to the station where the officer noticed that both appellant and Dean were wearing new tennis shoes.

As a result of these arrests, the police obtained statements from Moses and Dean implicating Dean and appellant in the murder. Investigators also searched Dean’s home and conducted luminol testing for the presence of trace blood. Two of the four sites that tested positive for blood had a dot-pattern shoe print consistent with that observed at the crime scene.

On May 14, 1998, a grand jury indicted appellant and Dean on three counts of murder in the first degree and aiding and abetting murder in the first degree. Subsequently, Dean entered into a plea agreement with the state. Dean agreed to testify at appellant’s trial and in return, Dean was allowed to plead guilty to burglary in the first degree and to aiding and abetting intentional second-degree murder for his role in Anderson’s murder.

At appellant’s trial, the testimony established the following facts. On August 19, 1997, appellant, who was 17 years old, attended a party at Dean’s mobile home to celebrate Moses’ 18th birthday. The party came to an end, and.with the departure of Moses, only Dean, appellant, and another friend, Joe Brown, remained. Appellant and Dean wanted to smoke marijuana, so the three men went next door to see if Dean’s neighbor, Anderson, had some. Anderson recognized Dean and admitted them. Anderson brought out some marijuana, and they sat in the living room talking, drinking, and smoking.

Dean testified that after some time, he,, appellant, and Brown all left Anderson’s together. Brown went to his car and left; Dean and appellant returned to Dean’s mobile home and watched television. Dean told appellant that he wished he had a bigger television and commented, how easy it would be to steal Anderson’s television. These musings eventually became a plan by Dean and appellant to steal Anderson’s television, video cassette recorder (VCR), and other valuables. Dean testified that they also discussed they might have to, knock Anderson out or even kill him. Prior to leaving Dean’s mobile home at about 2:30 a.m., Dean placed socks over his hands and appellant wrapped a white T-shirt around his hands to avoid leaving fingerprints at Anderson’s home.

According to Dean, he and appellant entered Anderson’s home without knocking. Startled,. Anderson got up from the couch. Appellant asked Anderson for some pop, and when he turned to get it, appellant swung a bottle at his head. , The bottle slipped from appellant’s hand and hit the wall, causing Anderson to turn and look at appellant. Appellant told Anderson that, the bottle slipped, but Anderson did not believe him and looked scared. Anderson told them to take the pop and leave as he returned to the couch.

Dean testified that instead of leaving, he and appellant crowded next to Anderson on the couch and appellant began elbowing Anderson. Appellant eventually pushed Anderson to the ground and wrestled him until he had pinned Anderson face down on the floor, with his knee in Anderson’s back. Appellant then punched and kicked Anderson in the head until he was unconscious, whereupon appellant and Dean began searching the home for items to steal.

While Dean searched the back bedroom, Anderson regained consciousness. Appellant began kicking Anderson in the ribs and face. When Dean returned to the living room, appellant asked Dean to help him so Dean held Anderson’s legs while appellant stomped on Anderson’s head. Anderson became unconscious again, and Dean and appellant decided they had to kill him or they “would both be told on.” Using a rifle found by Dean, appellant hit Anderson in the stomach, ribs, and head, causing blood to spatter appellant’s clothes and forehead. Sickened by the site of the blood, Dean vomited. Dean heard Anderson’s dog yelp, and as he turned to see what happened, he saw the dog hit the wall.

At appellant’s instruction, Dean continued searching the mobile home for goods to steal and found $400 between two books in a closet. Appellant walked around and touched various things, and Dean followed, wiping items off with the socks on his hands. Then, to make sure Anderson was dead, appellant stabbed him with a knife found in the mobile home. Dean grabbed the TV, VCR, and a video game, and took the items to his place. Upon returning to Anderson’s, Dean saw appellant stab Anderson in the throat; appellant later showed Dean the handle of a knife and told him the knife had broken while he was stabbing Anderson.

Dean and appellant left Anderson’s mobile home between five and six in the morning and returned to Dean’s mobile home, both in shock. Appellant washed the blood off his face and hands, and changed out of his blood-spattered clothes while Dean paged Moses. They put appellant’s clothes, the white T-shirt and socks they wore on their hands, Dean’s socks, and their shoes in a garbage bag. Moses called Dean’s phone number in response to the pages he had received, and Dean answered. Moses testified that Dean told him in a hurried and frightened voice that they had killed Anderson and needed Moses to help them get rid of some stolen items. During the phone conversation with Dean, Moses heard appellant in the background saying, “Get me some clothes, Steve,” in a loud and hurried voice. Dean ended the phone call by saying he needed to get out of his clothes, and hung up. In disbelief as to what he had heard, Moses called back and this time appellant answered the phone. Moses asked him “Did you guys really do it?” and appellant responded “Yeah, the neighbor is dead.” They talked a little longer, and then appellant said “I got to get out of these clothes,” and hung up.

After talking with Moses, appellant and Dean put the bag of clothes in Dean’s car, and went out for breakfast. After making some other stops, they went to a mall where they each purchased a new pair of shoes with the money stolen from Anderson. Upon returning to Dean’s mobile home, they found Moses and another friend, Alexander Lundeen, waiting for them. Moses asked Dean and appellant if they really did it, and Dean told him to look at the bag in the back seat, which appeared to Moses to contain clothes. Lundeen testified that Dean excitedly described how he “whacked” Anderson, and made motions with his hands and kicked his feet as he described the beating. Lun-deen testified that while Dean explained what happened, appellant did not confirm or deny the characterization. Instead, appellant just put his head down and occasionally made affirmative sounds. Moses offered to dispose of the bag containing the clothes and asked appellant if he could have appellant’s discarded black tennis shoes.

Moses and Lundeen left and drove to a nearby lake where Moses, according to his testimony, opened the bag and saw. a blood-spattered white T-shirt and two pairs of pants, as well as two pairs of shoes' — he recognized one pair as belonging to Dean and the other as belonging to appellant. Moses took appellant’s shoes from the bag and tried them on, but when they did not fit he returned them to the bag and discarded the bag with its contents in a dumpster. Moses described appellant’s old shoes as having a dotted tread pattern.

Appellant’s testimony at trial describing the circumstances of the murder differed considerably from Dean’s. Contrary to Dean’s testimony, appellant stated that when Brown left, Dean and appellant remained at Anderson’s. At some point, Dean and Anderson began arguing about the former residents of Dean’s mobile home — Dean’s brother and friends. The argument escalated, and Dean pushed Anderson. Anderson told Dean to get out, and followed his dog, which had been kicked by Dean, to the back of the mobile home.

Anderson returned with a rifle, and again told Dean to get out. Dean grabbed the gun, wrestled Anderson into a headlock, and punched him' in the face as Anderson struggled to get away. The two fell to the floor and Dean repeatedly kicked Anderson. Appellant tried to get Dean’s attention by saying “Let’s go” and hitting the wall, but Dean continued to kick Anderson. Dean picked up the rifle from the floor and struck Anderson multiple times with it..

Scared and hyperventilating, appellant ran outside and into a shed. After some time, he returned to Dean’s mobile home where he found Dean on the phone with a VCR next to him. Appellant confronted Dean and learned that Dean had killed Anderson. Appellant testified that, he wanted to go home, but did not have a ride at that hour of the morning. Dean eventually agreed to take him home, but instead they stopped for breakfast, went to Dean’s father’s house and Dean’s brother’s workplace, and then finally drove to a mall where Dean bought them both new shoes. Instead of taking appellant home at that time, they ¡returned to Dean’s home and found Moses and Lundeen waiting for them.

Appellant testified ‘ that he never planned to rob Anderson, and did not take anything' from Anderson’s home. He claimed that he did not cover his hands to conceal fingerprints and that he did not change his clothes or shoes at Dean’s home:- He testified that he never stabbed Anderson and denied taking any part in the murder.

Moses, who considered both appellant and Dean to be his best friends, testified that he spoke with both Moses and Dean, individually, about the murder. The day after the murder, while he and Dean were alone, Dean told Moses that he and appellant smoked marijuana with Anderson and then left. Then Dean and appellant discussed stealing Anderson’s television and considered the possibility that they might have to kill Anderson in the process. Moses also testified that Dean told him that Dean and appellant went back to Anderson’s home with their hands covered; appellant attempted to hit Anderson with a bottle and missed; appellant started elbowing Anderson, which led to kicking and beating; Dean searched the house for items to steal; appellant beat Anderson with a gun they found in the mobile home; appellant stabbed Anderson three times with a knife handed to him by Dean; and they stole $400, a TV, a VCR, a video game, and a stereo.

Moses testified that he also spoke with appellant alone on the following day, August 22. When Moses asked appellant what happened, . appellant' told him the same story as Dean had with two exceptions. Appellant told Moses that Dean kicked Anderson too, and appellant did not mention the stabbing of Anderson.

Following, the testimony, closing arguments, and instructions by the court, the jury retired to deliberate. On November 20, 1998, after a day and a half of deliberations, the jury returned verdicts of not guilty of premeditated murder and murder in the first degree while committing aggravated robbery, but guilty of murder in the first degree while committing burglary and murder in the second degree.

Following the verdicts, the county attorney’s office sent questionnaires to the jurors seeking their input on the trial. On December 1, 1998, appellant’s defense attorney received a typed, unsigned response to the questionnaire in an envelope with the last name and return address of juror K.T. Among the juror’s comments on the questionnaire was the following statement: “I wanted more from [the defense counsel] in presenting the defense. I know a person is supposed to be innocent until proven guilty, but in reality it didn’t work that way.” The juror also stated that she did not believe the testimony of Dean or Moses, that she believed appellant and wanted him to be not guilty, and that she did not see him as a threat to society.

Upon receiving the questionnaire responses, appellant moved for a judgment of acquittal on the grounds that the verdicts were not sustained by the evidence, or in the alternative, a new trial or Schwartz hearing because of juror misconduct. The trial court denied the motion and sentenced appellant to life imprisonment for the conviction of murder in the first degree. On this direct appeal, appellant seeks review of the trial court’s denial of a Schwartz hearing and also claims that the evidence was insufficient to support the verdicts.

I.

We first address appellant’s claim that he is entitled to a Schwartz hearing because of juror misconduct. When a defendant suspects a guilty verdict was tainted by juror misconduct, the defendant can make a post-trial motion to the trial court for a Schwartz hearing. See Minn. R.Crim. P. 26.03, subd. 19(6); Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 328, 104 N.W.2d 301, 303 (1960). A defendant must establish a prima facie case of jury misconduct before a motion for a Schwartz hearing must be granted. See State v. Larson, 281 N.W.2d 481, 484 (Minn.1979). “To establish a pri-ma facie case, a defendant must submit sufficient evidence which, standing alone and unchallenged, would warrant the conclusion of jury misconduct.” Id. We review the denial of a Schwartz hearing for an abuse of discretion. See State v. Church, 577 N.W.2d 715, 721 (Minn.1998).

In support of his request for a Schwartz hearing, appellant presented the trial court with the unsigned, typed responses to the county attorney’s post-trial juror questionnaire that appellant’s attorney received in the mail, apparently from juror K.T. Appellant contends that the juror’s written comments establish that his state and federal constitutional rights to due process and a fair trial were violated. Specifically, he argues that the juror lied during voir dire when she said she would uphold the law as instructed by the judge and would presume that the defendant is innocent until proven guilty.

The usefulness of a juror’s statement regarding a verdict is limited by Minn. R. Evid. 606(b), which provides:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention, or whether any outside influence was improperly brought to bear upon any juror, or as to any threats of violence or violent acts brought to bear on jurors, from whatever source, to reach a verdict. Nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

See also State v. Hoskins, 292 Minn. 111, 125, 193 N.W.2d 802, 812 (1972) (“jurors are not competent to disclose any matters which inhere in the verdict, such as their mental processes in connection with it or any other matter' resting alone in their minds or consciences”); Mattox v. United States, 146 U.S. 140, 148-49, 13 S.Ct. 50, 36 L.Ed. 917 (1892). “This court, in common with, most others, has consistently followed the rule that a jury’s deliberations must remain inviolate and its verdict may not be reviewed or set aside on the basis of affidavits or testimony concerning that which transpired in the course of the jurors’ deliberations.” Hoskins, 292 Minn. at 125, 193 N.W.2d at 812.

The rationale for the exclusion of juror testimony about a verdict or the deliberation process is to protect juror deliberations and thought processes from governmental and public scrutiny and to ensure the finality and certainty of verdicts. See 27 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure § 6072, at 403 (1990); Minn. R. Evid. 606; Advisory Comm. Cmt-1989. In Schwartz, we also expressed a concern that jurors be protected from harassment by counsel after the verdict. 258 Minn. at 328, 104 N.W.2d at 303.

Within this framework, we do not lose sight of the need to ensure fairness and accuracy in verdicts. We are concerned with discovering whether extraneous prejudicial information was considered by the jury, whether an outside influence was brought to bear on a-juror, or whether threats of violence — either from outside the jury or among the jury members themselves — affected the verdict. See Minn. R. Evid. 606(b). We have also recognized an exception to the prohibition against juror testimony when a juror conceals a prejudice or bias on voir dire that would have disqualified the juror from service. See State by Lord v. Hayden Miller Co., 263 Minn. 29, 35, 116 N.W.2d 535, 539 (1962); see also State v. Callender, 297 N.W.2d 744, 746 (Minn.1980) (recognizing an exception to Rule 606(b) where racial bias by a juror is alleged).

However, in the instant case none of these exceptions to the rule against juror testimony are applicable. The juror’s questionnaire responses, read within the context of the questions posed, do not indicate that she concealed a prejudice or bias on voir dire. More importantly, the juror’s written reflections, which explain why she joined in the verdicts rendered by the jury, are thought processes and as such are inadmissible under Minn. R. Evid. 606(b). Therefore, the trial court did not abuse its discretion in denying appellant a Schwartz hearing.

II.

Appellant also challenges his convictions as not supported by the evidence. When faced with a sufficiency of the evidence claim, we view the evidence in the light most favorable to the verdict and assume that the jury disbelieved any testimony that conflicts with the verdict. See State v. Thames, 599 N.W.2d 122, 126-27 (Minn.1999). Circumstantial evidence is accorded as much weight as other kinds of evidence. See id. at 127.

Appellant argues that there was insufficient evidence to support either of his convictions. In particular, appellant claims that the only evidence indicating that he participated in the murder was the testimony of Dean, who was an accomplice. Accomplice testimony is “inherently untrustworthy and must be supported by independent evidence.” State v. Bergeron, 452 N.W.2d 918, 924 (Minn.1990). Accordingly, a conviction' cannot rest on the uncorroborated testimony of an accomplice. See Minn.Stat. § 634.04 (1998); State v. Mathiasen, 267 Minn. 393, 398, 127 N.W.2d 534, 538 (1964).

Corroborating evidence may consist of: physical evidence associated with the crime, see Bergeron, 452 N.W.2d at 924; the testimony of eyewitnesses and experts at trial, see State v. Norris, 428 N.W.2d 61, 67 (Minn.1988); inadequacies and admissions in a defendant’s testimony, see State v. Scruggs, 421 N.W.2d 707, 713 (Minn.1988); and suspicious and unexplained conduct of an accused before or after the crime, see Mathiasen, 267 Minn. at 398, 127 N.W.2d at 538. Further,

Corroborating evidence may be secured from the defendant’s association with those involved in the crime in such a way as to suggest joint participation, as well as from the defendant’s opportunity and motive to commit the crime and his proximity to the place where the crime was committed. The defendant’s entire course of conduct may be looked to for corroborating circumstances. If his connection to the crime may be fairly inferred from those circumstances, the corroboration is sufficient.

State v. Adams, 295 N.W.2d 527, 533 (Minn.1980) (citation omitted).

The “quantum of corroborating evidence required in any case” depends on the circumstances of the crime. Mathiasen, 267 Minn. at 399, 127 N.W.2d at 539. Corroborating evidence need not establish a prima facie case of the defendant’s guilt. See State v. Ford, 539 N.W.2d 214, 225 (Minn.1995). It is sufficient if it “reinforces the truth of the accomplice’s testimony and points to the defendant’s guilt in some substantial degree.” State v. Bowles, 530 N.W.2d 521, 532 (Minn.1995). Corroborating evidence may be either circumstantial or direct, and is viewed in the light most favorable to the verdict. See Ford, 539 N.W.2d at 225.

Appellant specifically.argues that there is no corroboration of the accomplice testimony that Dean and appellant entered Anderson’s mobile home a second time with the intent to commit a burglary and that appellant actually participated in the murder of Anderson. Our review of the record reveals that many of the facts from the testimony by the accomplice, Dean, are corroborated by other witnesses or the physical evidence and point to appellant’s guilt. First, the following physical evidence corroborates that both appellant and Dean were present at the murder scene, that appellant participated in the murder, and that a burglary occurred: (1) there were two sets of bloody shoe prints at the scene, indicating that both persons were close to the body after significant blood was shed; (2) both appellant and Dean were wearing new shoes after the murder; (3) surfaces at the crime scene were wiped clean, consistent with Dean’s testimony that he and appellant covered their hands to prevent leaving fingerprints and that Dean wiped the surfaces after appellant touched them; and (4) a VCR with the victim’s blood on it was recovered from a friend of Dean’s and appellant’s.

In addition, appellant’s own testimony placed him at the scene of the murder, and his admitted association with Dean both: before and after the murder suggests joint participation. Further, when Dean described the murder to Lundeen and Moses in front of appellant, appellant did not deny his involvement, and even made sounds suggesting that he agreed with Dean’s statements.

Finally, Moses’ testimony corroborated nearly all of Dean’s testimony, including that appellant’s shoes had a dotted tread pattern, that appellant and Dean returned to Anderson’s for the purpose of stealing his TV, and that appellant participated in the murder. Appellant argues, however, that Moses’ testimony may not be used to corroborate Dean’s testimony because Moses was an accompliee-after-the-fact. “Accomplice testimony * * * may not be corroborated solely by the testimony of another accomplice.” State v. Harris, 405 N.W.2d 224, 227 (Minn.1987). However, “[t]he general test -for determining whether a witness is an accomplice is whether he could have been indicted and convicted for the crime with which the accused is charged.” State v. Jensen, 289 Minn. 444, 446, 184 N.W.2d 813, 815 (1971); see also State v. Landro, 504 N.W.2d 741, 745 (Minn.1993); Harris, 405 N.W.2d at 228. We have previously stated that

where the acts of several participants are declared by statute to constitute separate and distinct crimes, the pártiei-pants guilty of one crime are not accomplices of those who are guilty of a separate and distinct crime. Thus, a person who feloniously receives stolen goods is not an accomplice of the thief; and an accessory after the fact is not an accomplice of the principal

State v. Swyningan, 304 Minn. 552, 555, 229 N.W.2d 29, 32 (1975) (citations omitted).

In the instant case, Moses has a solid alibi for his whereabouts at the time of the murder, and neither appellant nor Dean implicated Moses in the murder. At the time of appellant’s trial, Moses had not been indicted or charged with first- or second-degree murder, or any other crime related to the murder. It may be true, as appellant claims, ‘ that Moses was better friends with Dean and that Moses received use immunity for his testimony. However, these concerns go to Moses’ credibility, which was for the jury to consider. A similar situation arose in State v. Landro, where two men were indicted for the same murder, and then one accepted a plea offer and testified against the other. See Landro, 504 N.W.2d at 745-46. The accomplice’s testimony in Landro was corroborated by his brother, who was also present when the murder occurred, but this' court held that because the brother had not been indicted he was not an accomplice and his testimony could properly corroborate the accomplice’s testimony. See id. We noted that while a familial relationship between accomplice and corroborating witness might suggest a bias, “cross-examination is an ample tool by which to expose the presence of possible bias to the jury.” Id.

Accordingly, Moses’ testimony was properly used to corroborate Dean’s testimony. Even so, we note that it is critical to our analysis here that Moses testified , not only to what Dean told him happened, but also as to what appellant told him happened the night of the murder. Moses was not an eyewitness to the murder so his testimony was based on what he learned from Dean and appellant.' According to Moses, appellant told him the same story about the murder as Dean had told him, with only minor inconsistencies. In light of the fact that Moses’ recitation of what appellant told him corroborated Dean’s testimony, we are not faced with the question of whether an accomplice’s testimony can be corroborated by a third person who is not an eyewitness to the crime and whose knowledge of the crime comes solely,,from what the accomplice relayed to him.

Therefore, because witness testimony and physical evidence corroborate Dean’s testimony that appellant entered Anderson’s mobile home for the purpose of committing a burglary and participated in the murder, we hold that the evidence is sufficient to sustain appellant’s convictions for first- and second-degree murder.

Affirmed.

      . Dean received a 12 1/2-year sentence for the murder and a 12 1/2-year stayed sentence for the burglary, to be served consecutively.

      . Even were we inclined to consider the juror’s responses as evidence, the responses do not support a conclusion that the trial court abused its discretion in denying appellant a Schwartz hearing. The statement appellant focuses on, "I know a person is supposed to be innocent until proven guilty, but in reality it didn’t work that way,” cannot be taken out of context. In addition to this statement, the juror also commented that she wanted the defendant to be not guilty, because while he made poor choices he did not seem to be a threat to society. Further, the juror joined with the other members of the jury in voting to acquit appellant of two counts of first-degree murder.'. Considering the juror’s comments in this context and in the light of the verdicts actually rendered, it appears that while she felt sympathy for the appellant, the evidence did not create a reasonable doubt as to the two counts of murder resulting in guilty verdicts.

      . Minnesota Statutes § 634.04 provides that:
      A conviction cannot be had upon the testimony of an accomplice, unless it is corroborated by such other evidence as tends to convict the defendant of the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.


source: Caselaw Access Project

author: Alan C. Page Associate Justice

license: Public Domain

text:
    In re Petition for DISCIPLINARY ACTION AGAINST David A. SINGER, an Attorney at Law of the State of Minnesota.
    No. C9-00-163.
    Supreme Court of Minnesota.
    Aug. 9, 2000.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent David A. Singer has committed professional misconduct warranting public discipline and that respondent’s continued authority to practice law poses a substantial threat of serious harm to the public within the meaning of Rule 16(a), Rules on Lawyers Professional Responsibility (RLPR).

The Director and respondent have filed a stipulation in which respondent waives his rights pursuant to Rule 14, RLPR, and agrees that the Supreme Court may immediately enter an order suspending him from the practice of law pending a final determination of the disciplinary proceedings.

This court has independently reviewed the file and approves the stipulation.

IT IS HEREBY ORDERED that respondent David A. Singer is suspended from the practice of law in Minnesota pending final determination of the disciplinary proceedings pursuant to Rule 16, RLPR.

BY THE COURT:

Alan C. Page Associate Justice


author: SHUMAKER, Judge.

text:
    STATE of Minnesota, Respondent, v. Scott Douglas HOFER, Appellant.
    No. C1-99-1106.
    Court of Appeals of Minnesota.
    June 13, 2000.

      Mike Hatch, Attorney General, Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, St. Paul, for respondent.
    John M. Stuart, State Public Defender, Robert Waterman, Special Assistant State Public Defender, Roseville, for appellant.
    Considered and decided by SCHUMACHER, Presiding Judge, HARTEN, Judge, SHUMAKER, Judge.
   OPINION

SHUMAKER, Judge.

After a bench trial, the court found appellant guilty of criminal vehicular homicide and leaving the scene of an accident resulting in death.

Appellant challenges the sufficiency of the evidence to prove that he caused the accident that resulted in the decedent’s death. He contends that the decedent’s negligent conduct was an intervening, superseding cause of the accident.

FACTS

Fifteen-year-old Melissa Dudero was a passenger on a bus traveling south along Rice Street in St. Paul. The bus stopped at the Geranium intersection and Ms. Dudero got off. She crossed in front of the bus and began to run across Rice Street against the “Don’t Walk” display on the traffic semaphore.

Scott Douglas Hofer was driving his car south on Rice. As he approached the Geranium intersection the traffic signal for his direction of travel changed to yellow. He began to slow down but then accelerated and entered the intersection as the signal changed to red.

Hofer’s car struck Ms. Dudero and threw her 25 feet. Hofer did not stop. Ms. Dudero died the next day from head injuries caused by the collision. Eventually the police found Hofer, and he admitted that he drove the car that struck Ms. Dudero.

The state charged Hofer with criminal vehicular homicide and leaving the scene of an accident resulting in death. He agreed to a trial to the court without a jury. The trial court found Hofer guilty on both charges. Hofer appeals om the judgment of conviction for criminal vehicular homicide.

ISSUE

As appellant drove his car through a red light he struck decedent who was running across the street against a “Don’t Walk” signal. Defending against the charge of criminal vehicular homicide, appellant argues that the evidence was insufficient to convict because decedent’s act was an intervening, superseding cause of the accident. Was the evidence sufficient to prove appellant caused the accident?

ANALYSIS

Contending that Ms. Dudero’s negligence in crossing the street was an intervening, superseding cause of her death, Hofer argues that the evidence is insufficient to support his conviction for criminal vehicular homicide.

Evidence is sufficient to support a conviction if, upon the facts in the record and the legitimate inferences to be drawn from those facts, the trier of fact could reasonably conclude that the defendant committed the crime charged. State v. Moore, 481 N.W.2d 355, 360 (Minn.1992). In assessing the sufficiency of the evidence, this court must assume that the trier of fact believed the evidence supporting the conviction and disbelieved evidence to the contrary. State v. Thomas, 590 N.W.2d 755, 757 (Minn.1999). The standard of review for a claim of insufficient evidence is the same for non-jury and jury trials. State v. Hough, 585 N.W.2d 393, 396 (Minn.1998).

When a person dies as a result of a motor vehicle accident and the driver who caused the accident leaves the scene, the driver commits criminal vehicular homicide:

A person is guilty of criminal vehicular homicide resulting in death * * * if the person causes the death of a human being not constituting murder or manslaughter as a result of operating a motor vehicle * * * where the driver who causes the accident leaves the scene of the accident * *, *.

MinmStat. § 609.21, subd. 1(7) (1998).

Hofer argues that the evidence was insufficient to prove that he caused the accident that resulted in Ms. Dudero’s death. Causation is established by proof that Hofer’s conduct was a substantial causal factor in bringing about Ms. Dude-ro’s death. See State v. Olson, 435 N.W.2d 530, 534 (Minn.1989); State v. Sutherlin, 396 N.W.2d 238, 240 (Minn.1986). See also Lennon v. Pieper, 411 N.W.2d 225, 228 (Minn.App.1987) (proximate cause of injury is act or omission that causes injury directly or through .natural sequence of events without intervention of another independent and efficient cause). There can be more than one cause of harm. Roemer v. Martin, 440 N.W.2d 122, 123-24, n. 1 (Minn.1989). Ordinarily, however, a victim’s causal contributory negligence is not a defense to a crime. State v. Crace, 289 N.W.2d 54, 59 (Minn.1979) (hojding that even if victim was negligent in dressing in black and drinking while hunting, it would not relieve defendant from liability); State v. Schaub, 231 Minn. 512, 519-20, 44 N.W.2d 61, 65 (1950) (finding that even if victim’s husband was negligent in.creating spark in gas-filled room, it did not relieve defendant from liability); In re Welfare of J.G.B., 473 N.W.2d 342, 346 (Minn.App.1991) (finding that even if victim had been driving negligently, it would not have relieved defendant from liability); State v. Munnell, 344 N.W.2d 883, 887-88 (Minn.App.1984) (holding that victim’s intoxication and the fact that he was lying in the middle of the road did not relieve driver of criminal liability).

An intervening, superseding cause of harm will act as a limitation on a defendant’s liability for his culpable conduct. Lennon, 411 N.W.2d at 228. An intervening, superseding act “breaks the chain of causation set in operation by a defendant’s negligence, thereby insulating his negligence as a direct cause of the injury.” Id.

For an intervening cause to be considered a superseding cause, the intervening cause must satisfy four elements: 1) its .harmful effects must have .occurred after the original negligence; 2) it must not have .been. brought about by the original negligence; 3) it must have actively worked to bring about a result which would not otherwise have followed from the original negligence; and 4) it must not have been reasonably foreseeable by the original wrongdoer.

Canada, By and Through Landy v. McCarthy, 567 N.W.2d 496, 507 (Minn.1997); see also State v. Jaworsky, 505 N.W.2d 638, 642-43 (Minn.App.1993) (in criminal vehicular operation trial, court did not err in giving causation instructions that included the four elements of superseding cause), review denied (Minn. Sept. 30, 1993).

When the acts or omissions of two or more persons combine to bring about a harmful result, those acts or omissions are concurring causes of the harm. Roemer, 440 N.W.2d at 123-24, n. 1.

A superseding, intervening cause of harm is generally the act of a third party occurring after a defendant’s negligent act and operating as an independent force to produce the injury.

Lennon, 411 N.W.2d at 228. A force caused or set in motion by an originally negligent person is not considered intervening because it proceeds directly from that person’s conduct. Carlson v. Fredsall, 228 Minn. 461, 468, 37 N.W.2d 744, 748 (1949) (quotation and citation omitted). Here, Hofer’s original negligence of entering the intersection against a red signal combined with Ms. Dudero’s original negligence of running in front of a bus against a “Don’t Walk” display. The combined original negligent acts followed a natural sequence that resulted in Ms. Dudero’s death. No other act or force intervened to turn that natural sequence aside. Without an intervening act or force, there can be no superseding cause. Furthermore, the record supports the conclusion that the accident was a foreseeable consequence of each act of negligence. See In Re Welfare of C.P.W., 601 N.W.2d 204 (Minn.App.1999) (J.M.P. was driving a truck and was being chased at high speeds by a truck driven by C. P.W. J.M.P. collided with another vehicle after going through a red light. C.P.W. was charged with criminal vehicular homicide. Held that J.M.P.’s violation of red light was not a superseding cause. The accident was the end of a natural sequence of events that was a foreseeable consequence of C.P.W.’s negligence.), review denied (Minn. Nov. 23, 1999).

DECISION

Because the respective negligent acts of appellant and decedent followed their natural sequences, without the intervention of any other act or force, to produce the accident that resulted in decedent’s death, decedent’s conduct was not an intervening, superseding cause of the accident. The trial court did not err in finding that the evidence was sufficient to prove appellant caused the accident and the death of decedent.

Affirmed.


author: EDWARD J. PARKER, Judge.

text:
    Tara J. SNILSBERG, Appellant (C1-00-75), Respondent (C5-00-323), v. LAKE WASHINGTON CLUB, a dissolved corporation, d/b/a Lake Washington Club, Inc., et al., Respondents (C1-00-75), Defendants (C5-00-323), Jonathan T. Rausch, Appellant (C5-00-323), Ellsworth B. Beetch, Respondent (C1-00-75), Harlan H. Bloomer, Respondent (C1-00-75), Joe Roe, et al., Defendants (C1-00-75).
    Nos. C1-00-75, C5-00-323.
    Court of Appeals of Minnesota.
    July 25, 2000.

      Stephen S. Eckman, Kristen R. Rice, Thomas F. Handorff, Eckman, Strandness

      & Egan, P.A., Wayzata, for appellant/respondent Tara J. Snilsberg.
    Thomas A. Gilligan, Jr., Shelly B. Martin, Murnane, Conlin, White & Brandt, St. Paul, for respondent/appellant Jonathan T. Rausch.
    Kurt D. Johnson, Dustan J. Cross, Gis-lason & Hunter, L.L.P., New Ulm, for respondent Lake Washington Club.
    Kenneth R. White, Farrish Johnson Law Office, Mankato, and Gerald L. Maschka, Maschka, Riedy & Ries, Manka-to, for respondent Ellsworth Beetch.
    James A. Reding, Jr., Lars C. Erickson, Reding & Pilney, Oakdale, for respondent Harlan Bloomer.
   OPINION

EDWARD J. PARKER, Judge.

In these consolidated appeals, Tara Snilsberg appeals the district court order granting summary judgment to respondents Beetch, Bloomer, and the club. She argues that primary assumption of the risk does not apply and that Beetch, Bloomer, and the club owed her duties of care and warning directly, and are also subject to vicarious liability for the conduct of the caretaker, Jonathan Rausch. Rausch appeals from the denial of his motion for summary judgment, claiming that primary assumption of the risk applies to preclude all of Snilsberg’s claims against all defendants. The district court certified the question, raised in Rausch’s appeal, of “whether primary assumption of the risk as to the Plaintiff necessarily bars all claims against all Defendants named in this action.”

FACTS

On July 17, 1997, after consuming alcohol with friends inside the cabin of her host, the caretaker at the Lake Washington Club, Tara Snilsberg dove off a dock in the dark and struck her head on the bottom of'the lake. As a result of the accident, Snilsberg, who was then 19, became paralyzed from the neck down.

The Lake Washington Club, an unincorporated association, occupied improved beachfront property on Lake Washington that included three docks, two of which were used for club members’ boats. Snils-berg was diving off the third dock, known as the caretaker’s dock, when she was injured. The caretaker’s dock was shorter than the others and was used as a service dock. The club grounds also included a pavilion, a tool shed, and the caretaker’s cabin. Ellsworth B. Beetch and Harlan H. Bloomer were members, directors, and officers of the club at the time of the accident.

The club published a spring newsletter each year listing'its general rules, of operation, including a rule prohibiting alcohol on club property. There were no rules or signs restricting swimming or diving on club premises. Beetch testified .in a deposition that diving was discouraged because the water was too shallow.

Each summer the club employed a caretaker. For the summer of-.1997, it'was Jonathan Rausch, who was 26 at the time and maintained a separate painting business. As caretaker, Rausch’s duties included emptying garbage, mowing the lawn, cleaning and raking the beach, cleaning restrooms, and phoning the appropriate club member if there was a problem with a boat. He had no scheduled hours and could complete his duties at any time of day. He was paid a salary for the summer and, as part of his compensation, lived in the caretaker’s cabin.

The cabin was considered the caretaker’s private residence, and Rausch was free to entertain guests there. Although there was a rule prohibiting alcohol on club grounds, the caretaker was free to have alcohol in the cabin. The record contains a copy of a 1989 letter to members stating that the no-alcohol rule was to be enforced by the caretaker. In a deposition, one board member, Robert Fitterer, testified that it was understood that the caretaker’s duties included enforcing club rules, including the no-alcohol rule. The other board members testified they did not believe the caretaker was responsible for enforcing club rules.

Tara Snilsberg’s grandfather was an active member of the club and rented a slip at the club for his boat. Since her childhood, she had frequented the club during the summer. Snilsberg was at the club nearly every day during the summer of 1997, and she began dating Rausch in June or July of that year.

There was testimony that Snilsberg was a strong swimmer and had been on her school’s diving team. In her deposition, she testified she had not gone swimming in the club’s swimming area since she was a small child, but earlier that summer she had waded into the club’s swimming area up to her waist. Also earlier that summer, while working on a boatlift with Rausch, she was in the water near the end of the caretaker’s dock. Snilsberg also stated in her deposition that she knew, as a matter of common sense, it. was hazardous to dive into shallow water.

The night of the accident was not Snils-berg’s first experience drinking alcohol. She had two underage-consumption violations and had consumed alcohol several other times. She had voluntarily consumed alcohol at a party at Rausch’s cabin earlier that summer.

On July 17, 1997, Snilsberg and Rausch left the club in the evening to go out to dinner. Beetch saw them as they left for dinner and testified in his deposition that they did not appear intoxicated. At dinner they split one glass of beer. They returned to the club later that night and joined a group of friends. In the cabin with the group, Snilsberg consumed two or three mixed drinks and “a couple of shots” of hard liquor. She testified she wanted to fit in with Rausch and the crowd. At some point, someone suggested they go swimming or skinny-dipping. In her deposition, Snilsberg said she had been skinny-dipping with Rausch and another friend once before in her grandfather’s pool.

A group including Snilsberg went toward the water around the caretaker’s dock. Snilsberg testified in her deposition that she recognized the effects of alcohol and felt intoxicated when she went down toward the water. There was conflicting testimony about whether Rausch, who entered the water ahead of Snilsberg, dove in headfirst off the dock or simply jumped into the water.

Snilsberg was the last to enter the water. She said in her deposition that she did not try to gauge the water’s depth because, unclad, she was trying to enter the water as quickly as possible. A witness from the party testified that no one appeared obviously intoxicated and that she saw no one pressure Snilsberg to drink. In her deposition, Snilsberg acknowledged that she used poor judgment or no judgment in diving into the water.

Snilsberg filed a five-count personal-injury complaint against Rausch, the club, Ellsworth Beetch, Harlan Bloomer, and John and Jane Roe, as members of the club; she alleged negligence by all parties and claimed the club and its members were vicariously liable for Rausch’s conduct.

Following extensive discovery and a hearing, the district court granted summary judgment for Beetch, Bloomer, and the club and denied summary judgment for Rausch. The court found that Snils-berg: “was vastly familiar with the land and water comprising the Lake Washington Club premises,” “was familiar with the water at the edge of the dock from which she dove and understood its depth,” “knew that diving into shallow water was dangerous,” “was an experienced diver,” and “demonstrated poor judgment or no judgment when she chose to dive off the dock;” that Snilsberg’s judgment “was affected by her intoxication;” that there was a fact question as to whether Rausch supplied alcohol to Snilsberg at the caretaker’s cabin; that the party that night was outside the scope of Rausch’s employment; and that Beetch, Bloomer, and the club breached no duty of care to Snilsberg.

The district court further ruled that: (1) there was no genuine issue of material fact for Snilsberg’s claim of negligent maintenance and operation; (2) the record did not establish that Snilsberg lacked the ability to protect herself or that Beetch, Bloomer, or the club had power over her welfare creating a duty to warn her or protect her from harm; (3) Beetch, Bloomer, and the club were protected by the recreational use immunity statute, Minn. Stat. § 604A.22 (1996); (4) Snilsberg’s assumption of the risk eliminated liability for Beetch, Bloomer, and the club; (5) Rausch’s conduct was outside the scope of his employment such that vicarious liability did not apply to the other defendants; and (6) there were disputed fact issues preventing summary judgment for Rausch, including (a) whether he had negligently provided alcohol to Snilsberg and thereby committed a common law tort under Minn. Stat. § 340A.801, subd. 6 (1996), and (b) whether he had a duty to warn Snilsberg, and (c) whether Snilsberg’s injuries were a direct result of Rausch’s alleged negligence and Snilsberg’s resulting intoxication.

By an amended order, the district court further denied Rausch’s motion to dismiss based on primary assumption of risk and certified as doubtful and important, so as to allow immediate appeal from that order, the issue: “Whether primary assumption of risk as to the Plaintiff necessarily bars all claims against all Defendants named in this action.”

ISSUES

1. Did the district court err in granting summary judgment to Beetch, Bloomer, and the club?

2. Did the district court err in denying summary judgment to Rausch?

ANALYSIS

In reviewing an appeal from summary judgment, this court asks (1) whether there are any genuine issues of material fa'ct and (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). The evidence must be viewed in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993).

Assumption of the Risk

Minnesota law recognizes two types of assumption of the risk. Swagger v. City of Crystal, 379 N.W.2d 183, 184 (Minn.App.1985), review denied (Minn. Feb. 19, 1986). Primary assumption of the risk arises when parties “have voluntarily entered a relationship in which plaintiff assumes well-known, incidental risks.” Andren v. White-Rodgers Co., 465 N.W.2d 102, 104 (Minn.App.1991) (quoting Olson v. Hansen, 299 Minn. 39, 44, 216 N.W.2d 124, 127 (1974)), review denied (Minn. Mar. 27, 1991). The defendant has no duty to protect the plaintiff from the well-known, incidental risks assumed, and the defendant is not negligent if any injury to the plaintiff arises from an incidental risk. Id. By contrast, secondary assumption of the risk is a form of contributory negligence in which the defendant has created a hazard that is known, appreciated, and voluntarily encountered by the plaintiff, but the defendant is not relieved of his duty of care with respect to the hazard. Id.

In primary assumption of the risk, “[b]y voluntarily entering into a sitúation where the defendant’s negligence is obvious,” by his conduct, the plaintiff consents to the defendant’s negligence and “agrees ‘to undertake to ¡look out for himself and relieve the defendant of the duty.’ ” Id. at 105 (quoting W. Keeton, et al., Prosser and Keeton on Torts, § 68, at 485 (5th ed.1984)). Generally a question for the jury, the applicability of primary assumption of the risk may be decided by the court as a matter of law “when reasonable people can draw only one conclusion from undisputed facts.” Jussila v. U.S. Snowmobile Ass’n, 556 N.W.2d 234, 236 (Minn.App.1996) (citing Andren, 465 N.W.2d at 105), review denied (Minn. Jan. 29,1997).

Duty to the Plaintiff

The first step in determining whether primary assumption. of the risk applies is to determine “whether the defendant owed a duty to the plaintiff.” Baber v. Dill, 531 N.W.2d. 493, 495 (Minn. 1995) (stating that “[i]f no duty exists there is no need to determine whether a person assumed the risk thus relieving the defendant of the duty”). Snilsberg claims Beetch, Bloomer, and the club owed a duty of reasonable care for her safety as an entrant on the club premises, including a duty to inspect" and repair the premises and to warn her and protect her from risks of harm caused by the condition of the premises. See State v. Hoyt, 304 N.W.2d 884, 890 (Minn.1981) (stating person visiting a tenant, resident, or occupier of land with express or implied consent is entrant rather than trespasser); Peterson v. Ba-lach, 294 Minn. 161, 174, 199 N.W.2d 639, 647 (1972) (stating possessor of land owes entrants duty of reasonable care). But the landowner’s duty to entrants does not include situations where the risk of harm is obvious or known to the plaintiff, unless the landowner should anticipate the harm despite the obviousness of the risk. Lawrence v. Hollerich, 394 N.W.2d 853, 855 (Minn.App.1986), review denied (Minn. Dec. 17, 1986); Restatement (Second) of Torts § 343A (1965).

The risk of harm here was the commonsense danger that the water off the shorter service dock may have been, too shallow for diving. Our review of the record establishes that reasonable people could have drawn only one. conclusion: Beetch, Bloomer, and the club had no duty as landowners to warn Snilsberg of this obvious risk.

Snilsberg also argues defendants Beetch and Bloomer had a “special relationship” with her that created a duty of care to protect her from Rausch’s conduct. While generally a defendant has no duty to prevent a third person from harming another, a duty exists if (1) there is a special relationship creating a right to protection and (2) the harm is foreseeable. Lundgren v. Fultz, 354 N.W.2d 25, 27 (Minn.1984). Special relationships giving rise to a duty to warn have been found between injured persons and possessors of land who hold it open to the public and persons having custody of another where the other lacks normal opportunities for self-protection. Harper v. Herman, 499 N.W.2d 472, 474 (Minn.1993). Because the accident occurred on club property, which was not open to the public, the first example has no application here.

With respect to a special relationship arising, from a person’s lack of normal opportunities for self-protection, in Harper, the supreme court held that the open and obvious nature of the hazard precluded finding a special "relationship existed between a boat owner and an inexperienced diver who injured himself by diving off the boat into shallow water. Id. at 472-75. Snilsberg claims Harper does not control here because her intoxication impaired her ability to protect herself from the risk. But her intoxication cannot increase any duties of Beetch, Bloomer, and the club as landowners because they did not provide alcohol to Snilsberg. These parties, clearly had no control over Snilsberg’s actions. See Gilbertson v. Leininger, 599 N.W.2d 127, 131-32 (Minn.1999) (finding no special relationship between hosts and dinner guest who had consumed alcohol, stayed overnight, and was injured, because defendants had no physical custody or control of guest, were not entrusted with guest’s health, and did not accept responsibility to care for guest’s physical condition); Doe v. Brainerd Int’l Raceway, Inc., 533 N.W.2d 617, 622 (Minn.1995) (finding landowner owed no duty to invitee whose voluntary actions, including drug and alcohol consumption, subjected her to obvious and “subjectively appreciated” dangers).

In light of the possibility, recognized by the district court, that Rausch was negligent, there remains a question of whether Beetch, Bloomer, and the club could be subject to vicarious liability as employers of Rausch. An employer may be held hable for negligent acts of an employee committed in the course and scope of employment. Edgewater Motels, Inc. v. Gatzke, 277 N.W.2d 11, 15 (Minn. 1979).

Whether a defendant’s negligence was committed within the scope of employment is ordinarily a fact question for the jury, but when the evidence is conclusive on ah the elements or there is no evidence to support a necessary element, there is no fact issue, and the scope of employment is determined as a matter of law. Hentges v. Thomford, 569 N.W.2d 424, 427 (Minn.App.1997). Factors to consider in determining whether negligent acts occurred in the scope of employment include whether (1) the conduct was to some degree in furtherance of the employer’s interests, (2) the employee was authorized to perform the type of conduct, (3) the conduct occurred substantially within authorized time and space restrictions, and (4) the employer should reasonably have foreseen the conduct. Id. at 427-28.

In view of the relevant factors, we hold, as a matter of law, that vicarious liability cannot apply here. Rausch’s actions were personal in nature; there is no credible basis from which to conclude that drinking at his private, on-site residence or swimming with friends in the nearby lake furthered the club’s interests. Despite Rausch’s undefined work hours, there is no question that he was not engaged in any of his caretaker duties at any relevant time. See Walker v. Scott County, 518 N.W.2d 76, 78 (Minn.App.1994) (stating where purpose of employee’s acts is purely personal, employer is not hable), review denied (Minn. Aug. 24, 1994); Laurie v. Mueller, 248 Minn. 1, 4-9, 78 N.W.2d 434, 437-39 (1956) (holding resident caretaker’s being on call for employer did not make employer liable for all activities of caretaker); see also Hentges, 569 N.W.2d at 428-29 (holding church not liable for pastor’s negligence on hunting trip despite claim that pastor was acting in scope of employment by developing relationships with parishioners).

In addition, although Rausch was permitted to entertain guests at his cabin and had hosted a prior party at the club, the record does not establish that a late-night drinking and swimming party including an under-aged drinker was authorized or foreseeable by his employer. Because Rausch was not acting within the scope of his employment, the district court properly held that vicarious liability cannot apply on these facts.

In light of the foregoing analysis, we concur with the district court’s conclusion that Beetch, Bloomer, and the club owed Snilsberg no duty of care and we affirm the court’s grant of summary judgment to those parties on that basis. However, because Snilsberg also challenges the district court’s grant of summary judgment to Beetch, Bloomer, and the club based on primary assumption of the risk, and because Rausch argues that the district court’s finding that primary assumption of the risk bars Snilsberg’s claims against Beetch, Bloomer, and the club also entitles him to summary judgment, we must also determine whether primary assumption of the risk bars any or all of Snilsberg’s negligence claims.

Application of Primary Assumption of the Risk

Our review of the record shows that Snilsberg assumed the inherent risk of diving off of a dock into dark water. But evidence suggesting Rausch may have enlarged that risk by providing her with alcohol prevents the doctrine from applying to bar Snilsberg’s claims against Rausch. As stated above, primary assumption of the risk applies to a plaintiff who “voluntarily exposes himself to a known and appreciated risk arising from another’s negligence.” Parr v. Hamnes, 303 Minn. 333, 337, 228 N.W.2d 234, 237 (1975) (citation omitted). It is shown if the plaintiff: (1) had knowledge of the risk, (2) had an appreciation of the risk, and (3) voluntarily chose to take the risk when faced with a choice of avoiding it. Andren, 465 N.W.2d at 104-05. Application of the doctrine requires actual, rather than con-structive, knowledge. Parr, 303 Minn, at 338, 228 N.W.2d at 237-38.

The record establishes that Snils-berg was an experienced swimmer and diver. The danger of diving into a dark lake from a short dock is obvious to anyone with her experience. Her own testimony established that she knew and appreciated the risk of diving into shallow water. Diving into dark water of indeterminable depth is equally dangerous. There has been no showing of a material change in the depth of the lake at a material time. Thus, the record supports the district court’s finding .that Snilsberg was familiar with the water and should have appreciated the risk in the specific area where the accident occurred..

Her general knowledge as an experienced swimmer and diver, and her specific knowledge of the shallow water around the caretaker’s dock, establish that Snilsberg had actual knowledge of the danger of diving into the lake from that dock. In addition, Snilsberg had ample opportunity to avoid the risk by declining to go swimming or by wading or jumping into the water. She chose voluntarily to expose herself to the risk and the district court correctly held that primary assumption of the risk applies.

The certified question of whether primary assumption of the risk bars all claims against all defendants is subject to de novo review. In re Butler, 552 N.W.2d 226, 229 (Minn.1996) (stating certified questions are reviewed de novo).

With respect to Snilsberg’s negligence claims against Rausch, we agree that there are material facts in dispute regarding whether Rausch was negligent and whether Snilsberg had actual knowledge of such negligence. But because there was no showing that Beetch, Bloomer, or the club may be liable for Rausch’s alleged negligence, fact questions as to Rausch’s alleged negligence do not preclude application of primary assumption of the risk to bar Snilsberg’s claims against those parties. Thus, we answer the certified question in the negative.

In her testimony, Snilsberg acknowledged she was not using good judgment when she dove off of the pier. She attributed her lack of judgment to alcohol consumption and to her haste to enter the water after disrobing. The record shows that she drank alcohol while at dinner with Rausch and then in Rausch’s cabin with the group before going to the lake to swim. This evidence could provide a basis for a jury finding that Rausch enhanced or enlarged the inherent risk of diving from the dock at night by giving alcohol to his under-aged guest. See Rusciano v. State Farm Mut. Auto. Ins. Co., 445 N.W.2d 271, 272 (Minn.App.1989) (holding primary assumption of the risk does not apply where there is evidence a defendant’s conduct enlarged the inherent risk assumed by plaintiff). It is unclear from the record whether the evidence would be sufficient to allow a jury to find that Rausch also enlarged the risk by diving into the lake ahead of Snilsberg.

Nonetheless, Beetch, Bloomer, and the club are connected to the case only as landowners and employers. They were not present at the scene, and Rausch’s conduct that night was not within the scope of his employment. Therefore, there can be no basis for holding Beetch, Bloomer, or the club responsible for any enlargement of the risk by Rausch, and Snilsberg’s primary assumption of the risk with respect to Beetch, Bloomer, and the club is unaffected.

Because of our decision that primary assumption of the risk applies to Snils-berg’s claims against Beetch, Bloomer, and the club but not against Rausch, we need not address the issues of whether the club, as an unincorporated association, is a proper party to this action, whether primary assumption of the risk may apply to Snilsberg’s claim against Rausch under Minn. Stat. § 340A.801, subd. 6 (1996), or whether the recreational immunity statute provides additional grounds for summary judgment. Minn. Stat. §§ 604A.22, 25 (1996).

DECISION

The district court properly granted summary judgment to Beetch, Bloomer, and the club based on primary assumption of the risk; it properly denied summary judgment to Rausch because there is evidence that his conduct may have enlarged or enhanced the inherent risk assumed by Snilsberg. The certified question is answered in the negative.

Affirmed in part; certified question answered in the negative.

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


text:
    Rachel A. BAUER, Appellant, v. BLACKDUCK AMBULANCE ASSOCIATION, INC., Respondent.
    No. C8-00-39.
    Court of Appeals of Minnesota.
    July 25, 2000.

      James W. Balmer, Eric W. Beyer, Fal-sani, Balmer, Peterson & Quinn, Duluth, for appellant.
    Janet Pollish, Pollish & Heisick, Minneapolis, for respondent.
    Considered and decided by HARTEN, Presiding Judge, TOUSSAINT, Chief Judge, and SHUMAKER, Judge.
   OPINION

SHUMAKER, Judge.

Appellant Rachel A. Bauer was injured while riding in an ambulance operated by a driver for respondent Blackduck Ambulance Association, Inc. Appellant submitted a workers’ compensation claim and collected benefits as an injured employee. She then sued respondent, claiming she was not an employee when she was injured.

Respondent moved for summary judgment, arguing that appellant represented herself to be an employee and, as such, has no tort remedy against her employer. The district court granted the motion. Appellant contends that the court erred because there exists a fact issue as to her employment status.

FACTS

Rachel Bauer was interested in receiving emergency medical technician (EMT) training through Blackduck Ambulance Association, Inc., where her mother was vice-president and a full-time EMT.

Blackduck agreed in January 1997 to pay Bauer’s tuition in return for EMT services. She completed the training but failed the EMT examination. Bauer did not perform EMT services after failing the examination but Blackduck listed her name on its “on-call roster.”

On November 26, 1997, Bauer’s mother was about to respond as an EMT to a motor vehicle accident when she telephoned Bauer and invited her to come to the scene to see what EMTs do. Bauer went to the accident site and then rode back with her mother in an ambulance that was taking an injured person to the hospital. On the way to the hospital, the ambulance hit a tree and Bauer was injured.

Bauer initiated a workers’ compensation claim against Blackduck and its insurer. She signed a retainer agreement with a lawyer, hiring him to “handle and litigate a claim for Workers’ Compensation benefits which I have a right to, as a result of my employment at” Blackduck. In her “First Report of Injury” Bauer was listed as the employee and “Blackduck Ambulance Assoc. Inc.” as the place of occurrence. The report indicated that the injury happened on the “employer’s premises.” Bauer signed other documents pertaining to her workers’ compensation claim in which she held herself out as Blackduck’s employee. Blackduck’s insurer paid Bauer $18,336.60 in workers’ compensation benefits.

After collecting workers’ compensation benefits, Bauer sued Blackduck in tort for damages caused by the alleged negligence of Blackduck’s ambulance driver. Black-duck asserted estoppel as one of its affirmative defenses to Bauer’s action.

Blackduck moved for summary judgment, arguing that “Bauer held herself out and represented herself as an employee” and accepted workers’ compensation benefits available only to employees. Black-duck contended that the court should rule as a matter of law that Bauer was an employee of Blackduck at the time of her injury.

In opposition to the motion, Bauer argued that she was not an employee, and that she did not realize that she was not entitled to workers’ compensation until after she had received all the benefits payable.

The district court granted Blackduck’s motion without explanation. Bauer claims on appeal that there exists a genuine fact issue as to whether or not she was an employee of Blackduck when she was injured.

ISSUE

After holding herself out to be an injured employee and collecting workers’ compensation benefits available only to employees, appellant sued respondent in tort for damages from the same injury, claiming that she was not in fact an employee. Is appellant estopped from bringing the tort action?

ANALYSIS

On appeal from summary judgment, we review the record to determine 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).

The exclusive remedy for an employee injured during employment is found within the Workers’ Compensation Act. Minn.Stat. § 176.031 (1998). See Hodel v. Gundle Lining Const. Corp., 572 N.W.2d 764, 765 (Minn.App.1997) (where act provides an exclusive remedy, courts have no jurisdiction). The act includes volunteer ambulance attendants as employees. Minn.Stat. § 176.011, subd. 9(20) (1998). Caselaw interpreting the workers’ compensation act has treated students and trainees who receive employment benefits as employees. See, e.g., Krause v. Trustees of Hamline Univ., 243 Minn. 416, 419, 68 N.W.2d 124, 126 (1955) (student nurses who receive room and board were “employees”); Judd v. Sanatorium Comm’n, 227 Minn. 303, 308, 35 N.W.2d 430, 434 (1948) (state university home economics graduate student intern injured during internship course with County Sanatorium Commission held to be employee of commission); and Pettee v. Noyes, 133 Minn. 109, 112, 157 N.W. 995, 996 (1916) (apprentice qualifying himself for the operation of an elevator was an employee, despite lack of license to be an operator).

Bauer contends that there exists a disputed fact issue about her employment status. But we first address whether her receipt of workers’ compensation benefits estops her from challenging her employment status.

Judicial estoppel prevents a party that has taken one position in litigating a particular set of facts from later reversing its position when it is to its advantage to do so. It is intended to protect the courts from being manipulated by chameleonic litigants who seek to prevail, twice, on opposite theories. Although the doctrine is not reducible to a pat formula, we have recognized certain boundaries. First, the later position must clearly be inconsistent with the earlier position. Also, the facts at issue should be the same in both eases. Finally, the party to be estopped must have convinced the first court to adopt its position; a litigant is not forever bound to a losing argument.

Port Authority v. Harstad, 531 N.W.2d 496, 500 (Minn.App.1995) (quoting Levinson v. U.S., 969 F.2d 260, 264-65 (7th Cir.1992)), review denied (Minn. June 14, 1995).

The facts supporting estoppel are undisputed. Bauer had a work history with Blackduck as an EMT trainee and Black-duck continued to list her as an “on-call” worker. She contends, however, that on the day of her injury she was merely an observer and not a trainee. Yet she filed a claim for benefits available only to employees. She accepted periodic payments of benefits for approximately 18 months, impliedly representing that she was an employee entitled to such benefits. When all benefits had been paid under the Workers’ Compensation Act, she sued for additional compensation as a nonemployee. We hold that she is judicially estopped from doing so.

DECISION

Because there were indicia of employment and appellant held herself out to be an employee while she collected workers’ compensation benefits, she is estopped from bringing a tort action against respondent.

Affirmed.


text:
    Sherriann PEPPI, Relator, v. PHYLLIS WHEATLEY COMMUNITY CENTER, Respondent, Commissioner of Economic Security, Respondent.
    No. C6-00-251.
    Court of Appeals of Minnesota.
    July 25, 2000.

      Lori Peterson, Tracy N. Tool, Lori Peterson & Associates, Minneapolis, for relator.
    David C. Weinstein, Meagher & Geer, P.L.L.P., Minneapolis, for respondent-employer.
    Kent E. Todd, St. Paul, for respondent-commissioner.
    Considered and decided by HARTEN, Presiding Judge, SCHUMACHER, Judge, and SHUMAKER Judge.
   OPINION

SHUMAKER, Judge.

Relator complained to her supervisor that she was being sexually harassed in the workplace by a co-worker. The supervisor informed her that management would leave it up to her as to whether or not the complaint should be investigated. Relator then quit her job and the commissioner of economic security determined that she was ineligible for reemployment compensation benefits because she quit without good reason caused by her employer. Relator contends on certiorari review that her employer’s failure to investigate her complaint was good reason that caused her to quit her job.

FACTS

Relator Sheriann Peppi worked as a pre-school teacher for respondent Phyllis Wheatley Community Center. In February 1999, Peppi received anonymous letters and a telephone call at work inviting her to engage in a lesbian sexual encounter. Peppi showed the letters to an associate director of the center who offered to remind all employees of the center’s sexual harassment policy. Peppi asked her not to do that.

In March and April 1999, a co-worker made sexual remarks and gestures to Pep-pi and told Peppi that she dreamed of her. When the associate director inquired of Peppi how things were going during this time period, Peppi said there were no problems.

In May 1999, the co-worker repeated to Peppi passages from the anonymous letters. It was then that Peppi was able to identify the co-worker as the author of the letters.

On July 27, 1999, Peppi complained of the co-worker’s sexual harassment to one of the community center’s supervisors. The supervisor said that she would discuss the complaint at a management meeting.

The supervisor met with the. center’s directors and a human resources consultant on July 30, 1999. Oh August 3, 1999, the supervisor told Peppi that management had decided to open a file on the complaint but that it was up to Peppi to decide whether the matter should be investigated further. Peppi said she was disappointed with the response but she did not request a further investigation. The community center’s harassment policy in effect at the time of Peppi’s complaint stated that the center “will investigate reports of harassment and take prompt and appropriate corrective action.”

On August 20, 1999, the co-worker left a note with Peppi requesting that they meet. Peppi did not want to meet with the coworker alone and she asked her supervisor to attend. The supervisor initially declined, but then agreed to attend. Peppi was upset, decided not to meet with the coworker, and left work early. She called in sick the next day and resigned on August 24,1999.

After a hearing on Peppi’s application for reemployment benefits, a compensation judge determined that she was disqualified because she quit her job without good reason caused by' her employer. A commissioner’s representative affirmed.

ISSUE

An employee complained to the employer of workplace sexual harassment by. a co-worker. The employer deferred to the employee the decision of whether to investigate the complaint. The employee then quit. Did the employee have good reason caused by the employer for quitting?

ANALYSIS

When reviewing a decision' by the commissioner’s representative, we are to use a narrow standard of review and accept findings- of fact if the evidence reasonably tends to. sustain them. White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn.1983). The issue of whether an employee had good reason to quit is a question of law reviewed de novo. Biegner v. Bloomington Chrysler/Plymouth, Inc., 426 N.W.2d 483, 485 (Minn.App.1988).

Applicants who quit employment because of a good reason caused by the employer shall not be disqualified from benefits. Minn.Stat. § 268.095, subd. 1(1) (Supp.1999). A good reason caused by the employer is one “that is directly related to the employment and for which the employer is responsible” and “is significant and would compel an average, reasonable worker to quit and become unemployed rather than remaining in the employment.” Minn.Stat. § 268.095, subd. 3(a)(1-2) (Supp.1999).

Considering cases of sexual harassment, the legislature has declared that

[a]n applicant has a good reason caused by the employer for quitting if it results from sexual harassment of which the employer was aware, or should have been aware, and the employer failed to take timely and appropriate action. Sexual harassment means unwelcome sexual advances, requests for sexual favors, sexually mbtivated physical contact or other conduct or communication of a sexual nature when: * * * the conduct or communication has the,purpose or effect of substantially interfering with an applicant’s work performance or creating an intimidating, hostile, or offensive working environment.

Minn.Stat. § 268.095, subd. 3(e) (Supp. 1999) (emphasis added).

When an employee properly complains to an appropriate person of sexual harassment in the workplace, the employer must investigate the complaint and may not defer that decision to the complaining employee: “[A]n employer has an affirmative duty to investigate complaints of sexual harassment and deal appropriately with the offending personnel.” Gillson v. State Dep’t of Natural Resources, 492 N.W.2d 835, 841 (Minn.App.1992) (citations omitted), review denied, (Minn. Jan. 28, 1993). This duty is augmented here by the community center’s written policy requiring an investigation of any complaint of sexual harassment.

At least by July 30, 1999, Peppi had made an apparently good-faith complaint to a supervisor of sexual harassment by an identified co-worker. This was sufficient to trigger an affirmative duty by the employer to make a timely and appropriate investigation, irrespective of the complaining employee’s opinion as to the need for an investigation. The employer may, however, consider the employee’s desires in deciding the manner of the investigation..

DECISION

Because respondent Phyllis Wheatley Community Center failed to take timely and appropriate action on relator’s complaint of sexual harassment, relator had good reason caused by her employer to quit her job, and she is not disqualified from receiving reemployment compensation benefits.

Reversed.


author: SCHUMACHER, Judge

text:
    Robert PEROVICH, Relator, v. BITUMINOUS CONSULTING & CONTRACTING CO., INC., Employer, Commissioner of Economic Security, Respondent.
    No. C6-99-2185.
    Court of Appeals of Minnesota.
    July 25, 2000.

      Emily E. Duke, Robin L. Preble, Fre-drikson & Byron, P.A., Minneapolis, for relator..
    Kent E. Todd, St. Paul, for respondent.
    Considered and decided by HARTEN, Presiding Judge, SCHUMACHER, Judge, and SHUMAKER, Judge.
   OPINION

SCHUMACHER, Judge

The Department of Economic Security determined that relator Robert Perovich was personally liable for the unpaid unemployment tax liability of his employer, Bituminous Consulting & Contracting Co., Inc. The commissioner’s representative affirmed the determination. We reverse.

FACTS

Perovich was a full-time seasonal employee of Bituminous, working approximately May through November for several years. He was neither an officer nor a director of the company. At his employer’s direction, Perovich signed some of the company’s reports -to the department, some of the checks it sent to the department, and a contract with the department in which Bituminous agreed to a payment schedule for its unpaid unemployment taxes.

On May 11, 1994, and October 9, 1995, the department sent Perovich notices that he would be held personally liable for Bituminous’s unpaid unemployment taxes. Both notices were mailed not to Perovich’s home address, but to his employment address at Bituminous. It is undisputed that Perovich did not know these notices were sent and never received them.

Perovich learned of the department’s actions in 1996 when it sent a notice to his son’s house. In response, Perovich called the department apd learned that the department was holding him personally liable for Bituminous’s unpaid unemployment taxes. Perovich sent the department a letter in which he explained why he believed he should not be held personally liable. After Perovich later became aware of the department’s collection efforts, he retained counsel and eventually was granted an evidentiary hearing. After the hearing, the reemployment compensation judge found that Perovich’s appeal was untimely. The commissioner’s representative affirmed that decision, holding that because Perovich’s appeal was untimely, the department lacked jurisdiction to consider the appeal.

ISSUE

Did the commissioner’s representative err in concluding that the department lacked jurisdiction to consider the merits of Perovich’s appeal because it was untimely?

ANALYSIS

On a writ of certiorari, we may review all findings and questions of law and fact considered before the commissioner. Behrendt v. Commissioner of Jobs & Training, 513 N.W.2d 843, 845 (Minn.App. 1994). On appeal, we review the decision of the commissioner’s representative, not the decision of the reemployment compensation judge. Fujan v. Ruffridge-Johnson Equip., 535 N.W.2d 393, 395 (Minn.App. 1995). We must defer to the commissioner’s findings of fact if the evidence reasonably supports them, but we exercise independent review over questions of law. Smith v. Employers’ Overload Co., 314 N.W.2d 220, 221 (Minn.1981).

In order to hold an individual liable for a company’s unpaid unemployment taxes, the department must first make an initial determination that the individual is personally liable for the unpaid taxes. That determination becomes final unless the individual files a protest within 30 days of the department mailing the notice of personal liability to the “individual’s last known address.” Minn.Stat. § 268.063(e) (1998).

Perovich argues that his appeal is not untimely because the appeal period never started. He contends that the department did not follow the statutorily required procedure because it mailed the initial determinations of personal liability—the May 11, 1994 and October 9, 1995 notices—to his employer’s address, not to his “last known address.” In support of this argument, Perovich cites Schilling v. Odlebak, 177 Minn. 90, 224 N.W. 694 (1929), where the Minnesota Supreme Court, construing a statute allowing substituted service of process on nonresidents using Minnesota highways, stated that “[w]e construe the words, ‘last known address,’ as meaning the last known residence or place of abode.” Id. at 93, 224 N.W. at 696.

On appeal, the department does not directly address Perovich’s argument, except to contend that the “Department’s mailings complied with the requirements of the statute.” The commissioner’s representative included more analysis in his decision, noting that although the statute requires the initial notice of personal liability to be sent to the “individual’s last known address,” the statute “does not state whether the address is the individual’s business or home address.” The representative also “note[d] the authorities cited by the attorney representing Mr. Perovich”—Schilling and an unpublished case that cites it for the relevant proposition, Orix Credit Alliance v. Abatement Nelson Cos., No. C8-93-571, 1993 WL 515823 (Minn.App. Dec 14, 1993)—but observed without further analysis that “those eases do not involve the Economic Security Law, reemployment insurance provisions.”

The commissioner’s representative’s reasons for concluding that the department complied with the statutory notice requirements are not persuasive. By saying that the statute “does not state whether the address is the individual’s business or home address,” the representative implied that the statute was ambiguous. But “[w]hen ambiguous, tax statutes must be strictly construed against the taxing authority and in favor of the taxpayer.” Benda v. Girard, 592 N.W.2d 452, 455 (Minn.1999).

Nor is the representative’s objection that Schilling dealt with a different statute persuasive. As a matter of statutory construction, we presume that “the legislative body uses the same term consistently in different statutes.” Angell v. Hennepin County, 565 N.W.2d 475, 479 (Minn.App.1997), aff'd, 578 N.W.2d 343 (Minn.1998).

Taken together, the Supreme Court’s decision in Schilling and the canons of statutory construction presuming that identical phrases mean the same thing in different statutes and requiring that ambiguous tax statutes be construed strictly in favor of the taxpayer lead to the conclusion that the phrase “individual’s last known address” in Minn.Stat. § 268.063(e) refers to an individual’s residence address. Thus, because the department never properly mailed the initial determinations of personal liability to Perovich’s home address, the time in which he could protest the determinations never started. Cf. Curtis v. Curtis, 442 N.W.2d 173, 176 (Minn.App.1989) (appeal filed several years after order issued was timely because adverse party never started appeal period by serving written notice of filing of order). The commissioner’s representative therefore erred by concluding that Perovieh’s appeal was untimely.

DECISION

The commissioner’s representative erred in deciding that the department lacked jurisdiction over Perovich’s appeal.

Reversed.