author: MEIERHENRY, Justice.

text:
    2005 SD 21
    MHW LIMITED FAMILY PARTNERSHIP, Plaintiff and Appellee, v. Abdollah FARROKHI, Defendant and Appellant.
    No. 23315.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 10, 2005.
    Decided Feb. 9, 2005.
    Gregory J. Bernard of Thomas, Nooney, Braun, Solay & Bernard, Rapid City, South Dakota, Attorneys for plaintiff and appellee.
    Sara L. Larson, Michael M. Hickey of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, South Dakota, Attorneys for defendant and appellant.
   MEIERHENRY, Justice.

[¶ 1.] This is an appeal from an action by MHW Limited Family Partnership (MHW) to recover unpaid rents from Ab-dollah Farrokhi. The lease agreement at issue was entered into by Farrokhi and Mort Wilkins Real Estate Investments (MWREI), MHW’s predecessor in interest to the leased property. MWREI subsequently transferred the property to MHW by quitclaim deed. The question of whether this conveyance by the lessor also conveyed the obligations of the lease is one of first impression in South Dakota. The trial court ruled in favor of MHW, finding that the obligations of the lease were conveyed. We affirm.

FACTS

[¶ 2.] On August 13, 1996, MWREI agreed to lease the property located at 518 Mt. Rushmore Road to Farrokhi for a five year term commencing on September 1, 1996 and ending on August 31, 2001. MWREI was a business name for Mort Wilkins Sr., the only principal in the business. On November 21, 1996, Mr. Wilkins Sr. conveyed the property to MHW by quitclaim deed. MHW is a partnership in which Mr. Wilkins Sr. and his two sons were partners. Farrokhi continued to operate his business at the location under the terms of the lease and continued to write his rent checks to Morton Wilkins Sr. Ultimately his business was unsuccessful and beginning in January of 1999, Farrokhi quit paying rent on the premises. On June 3, 2002, MHW filed suit against Far-rokhi to recover the unpaid rent for the remaining term of the lease. Farrokhi claimed that the lease was not enforceable. As a basis of his claim, Farrokhi asserted (1) that the conveyance of real property by quitclaim deed did not transfer interest in the existing lease because the lease is personal property, and (2) that there is no privity of contract between MHW and Farrokhi because the lease was not properly assigned to MHW. The trial court held that the quitclaim deed did transfer the interest in the lease to MHW. Judgment was accordingly entered for MHW. Farrokhi appeals.

ISSUE

Whether the trial court erred by holding that MWREI effectively assigned its interest in a lease to MHW when it executed a quitclaim deed.

STANDARD OF REVIEW

[¶ 3.] This is a case of first impression in South Dakota and requires statutory interpretation. “We interpret ‘statutes under a de novo standard of review without deference to the decision of the trial court.’ ” Peterson v. Burns, 2001 SD 126, ¶ 7, 635 N.W.2d 556, 561 (quoting In re Estate of Karnen, 2000 SD 32, ¶ 7, 607 N.W.2d 32, 35).

DECISION

[¶ 4.] On appeal Farrokhi does not challenge the trial court’s findings and conclusions regarding the validity of the lease, Farrokhi’s breach of the lease, or the amount of the damages. Farrokhi’s appeal is premised entirely on his claim that no privity of contract exists between MHW and Farrokhi resulting in MHW not being a real party in interest in this action.

[¶ 5.] The crux of Farrokhi’s argument is that the interest conveyed in a lease is personal property and not real property. Pursuant to SDCL, 43-7-2, “estates for years are chattels real[.]” Farrokhi asserts that a “chattel real” is personal property. Further, he contends that because a lease agreement is personal property, it cannot be conveyed or assigned through a quitclaim deed because a quitclaim deed is a “deed that conveys a grantor’s complete interest or claim in certain real property .... “ Black’s Law Dictionary 424 (7th ed. 1999) (emphasis added). Farrokhi reasons that since the lease agreement is personal property, it was not transferred by the quitclaim deed to MHW; and consequently, MHW has no interest or privity in the contract allowing it to enforce the contract provisions.

[¶ 6.] Resolution of this case does not require us to rule on whether a lease is personal property because the South Dakota legislature has specifically addressed how rents are transferred. The pertinent statute provides:

A person to whom any real property is transferred or devised, upon which rent has been reserved, or to whom any such rent is transferred, is entitled to the same remedies for recovery of rent, for nonperformance of any of the terms of the lease or for any waste or cause of forfeiture, as his grantor or devisor might have had.

SDCL 43-8-7.

[¶ 7.] It is undisputed that the real property was transferred to MHW by quitclaim deed. If the transfer in this case was a transfer of property “upon which rent has been reserved”, MHW is entitled to the same remedies for recovery of rents that the grantor MWREI had. The question here is the meaning and application of the statutory language “upon which rent has been reserved.” In other words, was the transfer of real property that was subject to a continuing lease a transfer of real property “upon which rent has been reserved”? If so, MHW has “the same remedies for recovery of rent, for nonperformance of any of the terms of the lease ... as [MHREI] ... might have had.” Id.

[¶ 8.] When interpreting and applying the same legal principal expressed in our statutory language, other jurisdictions have found that unless there is evidence to the contrary, the transferee of real property is entitled to enforce the rental terms of a pre-existing lease. The North Carolina Supreme Court has held that “[a] conveyance of land, which is subject to a valid and continuing lease, passes to the purchaser the right to collect the rents thereafter accruing.” Pearce v. Gay, 263 N.C. 449, 139 S.E.2d 567, 569 (N.C.1965). The North Carolina court went on to say:

If the grantor is to collect rents accruing subsequent to the effective date of the conveyance, he must, by reservation in his deed, provide that grantee shall not be entitled to possession prior to the expiration of the term fixed in the lease, or otherwise expressly reserve his right to collect subsequently accruing rents.

Id.; See also 49 Am.JuR.2d Landlord and Tenant § 1060 (2004). In an analogous situation the Supreme Court of Pennsylvania has stated: “When land is sold by the original lessor, the purchaser of the land steps into the shoes of the original lessor and can enforce such restrictions as against an assignee of the original lessee.” National Forge Co. v. Carlson, 452 Pa. 516, 307 A.2d 902, 904 (1973). A California court has similarly addressed this issue stating:

Absent a contrary agreement of the parties, a sale by a landlord of real property during an unexpired term does not of itself abrogate the lease. Its effect is to grant all the rights of the original lessor to the grantee of the reversion. The grantee then becomes the landlord by operation of law and the tenant becomes a tenant of the grantee of the reversion. In determining whether a grantor retains its rights under a lease on transfer of the property, the crucial question is what the parties intended. The general rule that on sale the grantee becomes the landlord by operation of law does not apply, however, where the grantor expressly reserves its rights under the lease.

Kirk Corp. v. First American Title Co., 220 Cal.App.3d 785, 809, 270 Cal.Rptr. 24, (1990) (internal citations and quotations omitted); See also 49 Am.JuR.2d Landlord and Tenant § 1060 (2004).

[¶ 9.] Other jurisdictions with statutory-language either identical or nearly identical to SDCL 43-8-7 have found that a lease passes with a real property transfer. North Dakota’s nearly identical statute is found at N.D. Cent. Code § 47-16-28 (2003). An early North Dakota case discussed the common law basis of the statute as follows:

At early common law a lease was considered like any other, agreement or chose in action, and was not assignable so as to give the assignee an action against the tenant. Later the injustice which this rule caused was partially corrected by the enactment of 32 Hen. VIII. c. 34, § 1, declaring that the assignee of the reversion should become invested with the rents. It was thereafter held that the assignment of the reversion created a privity of estate between the assignee and the tenant[.]

Northern Pac. R. Co. v. McClure, 9 N.D. 73, 81 N.W. 52, 53 (N.D.1899). In a later case involving leased property that was transferred by the lessor, the North Dakota Supreme Court found that “[t]he right to this [rent] money was assigned to the defendant and passed to him by virtue of the deed.” Martin v. Royer, 19 N.D. 504, 125 N.W. 1027, 1028 (N.D.1910). The Court went on to state:

Whatever Southerland was-that is, whether a tenant, cropper, or employee — in a strict technical sense, it seems clear that he was to do the plowing as compensation for the use of the plowed land, and it also seems clear that the right to it was assigned to the defendant by the deed to the same effect as though the technical relations of landlord and tenant had existed between the plaintiff and Southerland. This was rent, whether the technical relation of landlord and tenant existed under the contract by virtue of its other terms or not, and it passed to the defendant with the title to the land. In legal effect, this money was rent under the definition given. It belonged to the defendant and passed to him by virtue of the deed just as the crop did.

Id.

[¶ 10.] California has a statute identical to SDCL 43-8-7. See Cal. Crv. Code § 821 (West 2004). When interpreting its statute, the California Court of Appeals stated:

The general rule is that a sale by a lessor of real property during an unexpired term does not of itself abrogate the lease. Its effect is to grant all the rights of the original lessor to the grantee of the reversion. The grantee then becomes the landlord by operation of law and the tenant becomes a tenant of the grantee of the reversion. Civil Code section 821 says that a person to whom any real property is transferred, upon which rent has been reserved, is entitled to the same remedies for recovery of rent and for nonperformance of any of the terms of the lease, as his grantor might have had. A lessee is under a duty to his lessor to perform the covenants of the lease.... Pellín [the lessee by assignment] was bound to plaintiffs [grantees of the reversion] by the covenants of the lease[.]

Rosenkranz v. Pellin, 99 Cal.App.2d 650, 222 P.2d 249, 251 (1950) (internal citation omitted).

[¶ 11.] We find these other jurisdictions persuasive in the interpretation and application of our own statutes. See also Cooper v. Ratley, 916 S.W.2d 868, 870 (Mo. Ct.App.1996) (“an assignment of the reversion carries the right to the assignee to sue for rent”) (citations and quotations omitted); Blankenau v. Landess, 261 Neb. 906, 626 N.W.2d 588, 593 (2001) (“Generally, the owner of leased property may sell the property, and such grant conveys the landlord’s interest in the lease.”); Primock v. Jew, 680 P.2d 1347, 1348 (Colo.Ct.App. 1984) (“A separate assignment of lessor’s interest in the lease is not necessary.”). Additionally, we consider the language of SDCL 43-25-28, which states:

Grants of rents, or of reversions, or of remainders, are good and effectual without attornments of the tenants, but no tenant, who before notice of the grant shall have paid rent to the grantor, must suffer any damage thereby.

This language further supports the conclusion that the grant of a reversion conveys to the transferee a right to recover the rent required by a preexisting lease.

[¶ 12.] In this case, there was no evidence by the wording of the deed or otherwise to indicate that MWREI reserved its rights to the lease. MWH acquired the real property subject to a preexisting and continuing lease agreement. MWH, therefore, “is entitled to the same remedies for recovery of rent, for nonperformance of any of the terms of the lease or for any waste or cause of forfeiture, as [MWREI] ... might have had.” SDCL 43-8-7.

[¶ 13.] The trial court is affirmed.

[¶ 14.] GILBERTSON, Chief Justice, and SABERS and ZINTER, Justices, concur.

[¶ 15.] KONENKAMP, Justice, deeming himself disqualified, did not participate.

      . Caselaw and common law consistently refer to the transfer of land which is subject to a lease as a transfer of the "reversion”. Reversion is defined:
      A future interest in land arising by operation of law whenever an estate owner grants to another a particular estate, such as a life estate or term of years, but does not dispose of the entire interest.
      Black’s Law Dictionary 1320 (7th ed. 1999).

      . N.D. Cent. Code § 47-16-28 states:
      A person to whom any real property is transferred or devised upon which rent has been reserved, or to whom any such rent is transferred, is entitled to the same remedies for recovery of rent, for nonperformance of any of the terms of the lease or for any waste or cause of forfeiture as that person’s grantor or devisor might have had.


source: Caselaw Access Project

author: ANDERSON, RUSSELL A., Justice. MEYER, Justice BLATZ, Chief Justice

license: Public Domain

text:
    Jeffrey ANDERSON, et al., Appellants, v. STATE of Minnesota, DEPARTMENT OF NATURAL RESOURCES, Respondent, John Doe, Defendant, Terry Ricks, d/b/a Ricks Aviation, Respondent, International Paper Co., f/k/a Champion International Corporation, Respondent, and Steven Ellis, Appellant, v. State of Minnesota, Department of Natural Resources, Respondent, John Doe, Defendant, Terry Ricks, d/b/a Ricks Aviation, Respondent.
    No. A03-679.
    Supreme Court of Minnesota.
    March 3, 2005.

      Gary A. Van Cleve, Christopher J. Deike, Larkin Hoffman Daly & Lindgren Ltd., Minneapolis, MN; Stephen F. Rufer, Pemberton, Sorlie, Rufer & Kershner, P.L.L.P., Timothy A. Rundquist, Rund-quist Law Office, Fergus Falls, MN, for Appellants.
    Mike Hatch, Attorney General, Jerome L. Getz, Assistant Attorney General, St. Paul, MN, for Respondent DNR.
    Alexandra B. Klass, Sara J. Peterson, Dorsey & Whitney L.L.P., Minneapolis, MN, for Respondent International Paper.
    Craig E. Johnson, Johnson, Ramstad & Mottinger, P.L.L.P., Fargo, ND, for Respondent Terry Ricks, and T.L.T. Aerial AG. Service, Inc.

      Marci L. Iseminger, Crary, Huff, Ink-ster, Sheehan, Ringgenberg, Hartnett & Storm, Sioux City, IA, and Patrick T. Tier-ney, Collins, Buckley, Sauntry & Haugh, P.L.L.P., St. Paul, MN, for amici curiae Sioux Honey Association Cooperative.
    John P. Mandler, Kristin R. Eads, Faegre & Benson L.L.P., Minneapolis, MN, for amici curiae CropLife America, Minnesota Agricultural Aircraft Association and Minnesota Crop Production Retailers.
    Bruce M. Eleven, Attorney at Law, St. Paul, MN, for amicus curiae Minnesota Farm Bureau Federation.
    Daniel Weaver, Vice President, Navaso-ta, TX, for amicus curiae American Beekeeping Federation, Inc.
   OPINION

ANDERSON, RUSSELL A., Justice.

We granted the petition of appellants Jeffrey Anderson, James Whitlock and Steven Ellis (the beekeepers) to review a decision of the court of appeals affirming summary judgment in favor of respondents Department of Natural Resources (DNR) and International Paper Company (IP) on claims of negligence, negligence per se and nuisance and reversing the denial of summary judgment for the DNR on a portion of the common-law negligence claim. We affirm in part, reverse in part and remand.

Appellants Steven Ellis, Jeffrey Anderson, and James Whitlock are migratory commercial beekeepers who maintain beehives in Douglas, Pope, Todd, Stearns, Otter Tail, and Morrison counties. The beekeepers do not own the land on which they place their hives; and in lieu of rent, the beekeepers give a “thank-you gesture” of honey or a small amount of money to the landowners. The hives are located on land near privately owned groves or “plantations” of poplar trees grown for paper production and fuel research. The DNR and IP either own or manage the groves, and the beekeepers hold no interest in them.

When cottonwood leaf beetles began invading the DNR and IP groves in 1997 and 1998, respondents retained commercial spray operators to apply Sevin XLR Plus, a carbaryl-based pesticide toxic to bees. On one occasion, July 21, 1999, the DNR arranged through a chemical supplier to have an independent contractor spray a hybrid poplar plantation close to the location of some of Ellis’ hives. During this spraying, which the parties refer to as the “Swanson incident,” landowner Dale Swanson estimated that pesticide was applied “perhaps a hundred feet” from 32 of Ellis’ bee colonies. Minnesota Department of Agriculture laboratory analysis confirmed that at least some of Ellis’ bees died from carbaryl poisoning in the apparent “over-spray” incident. During other sprayings, the beekeepers allege that the DNR and IP knew bees were foraging on land that the respondents either own or manage but directed that Sevin XLR Plus be applied anyway, resulting in dead bees and infected hives.

The beekeepers commenced actions alleging, inter alia, that (1) the DNR and IP negligently created an unreasonable risk of harm to the beekeeping operations; (2) that the DNR and IP were negligent per se, in violation of the Minnesota Pesticide Control Act, which prohibits the use of pesticides in a manner that is inconsistent with label directions; and (3) that the DNR and IP created a private nuisance. Ellis subsequently dismissed his claims against IP upon discovering that his hives were not near IP’s land. All parties moved for summary judgment. The district court granted summary judgment for respondents, dismissing all claims except for the claim against the DNR for damages resulting from the Swanson incident. On the appeal of the beekeepers and by notice of review by the DNR, the court of appeals reversed the denial of the dismissal of the overspray claim against the DNR and affirmed the dismissal of the remaining claims. Anderson v. Dep’t of Natural Res., 674 N.W.2d 748, 760 (MinmApp. 2004).

I.

Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Funchess v. Cecil Newman Corp., 632 N.W.2d 666, 672 (Minn.2001); Rathbun v. W.T. Grant Co., 300 Minn. 223, 229, 219 N.W.2d 641, 646 (1974). On appeal from summary judgment, we consider whether the lower courts erred in applying the law and whether there are any genuine issues of material fact for trial. Northern States Power Co. v. Minnesota Metro. Council, 684 N.W.2d 485, 491 (Minn.2004). The existence of a duty generally is a question of law for this court to decide de novo. H.B. and S.B. By and Through Clark v. Whittemore, 552 N.W.2d 705, 707 (Minn. 1996).

Landowners owe a duty to use their property so as not to injure that of others. Farrell v. Minneapolis & R.R. Ry. Co., 121 Minn. 357, 361, 141 N.W. 491, 492 (1913); Dan B. Dobbs, The Law of Torts § 231 (2000) (landowners owe a duty not to create “a serious interference with [neighboring landowers’] use and enjoyment of land by pollution or the like.”). We have explained this rule over many years and in many contexts. In Lorshbough v. Township of Buzzle, we held that a county in charge of a township dump was liable for forest fire damage to the plaintiffs’ real property as well as personal property where it was “reasonably foreseeable” that conditions at the dump violative of Minnesota Pollution Control Agency standards would cause the damage. 258 N.W.2d 96, 102 (Minn.1977). In Sime v. Jensen, we recognized that a landowner who elevates his land above the level of adjoining land will act reasonably by constructing a retaining wall to keep soil away from his neighbor. 213 Minn. 476, 480, 7 N.W.2d 325, 327 (1942). In Johnson v. Seifert, we held that an owner of lakefront property may use the abutting lake for recreational purposes, “provided such use is reasonable[.]” 257 Minn. 159, 168-69, 100 N.W.2d 689, 696-97 (1960). In Wilson v. Ramacher, we held that landowners may divert excess surface water to neighboring property as long as doing so constitutes a “reasonable use” based on balancing “whether the benefit to the diverter’s land outweighs the harm to the land receiving the surface waters.” 352 N.W.2d 389, 393-94 (Minn.1984). In Peterson v. Balach, we charged land entrants as well as land possessors to act reasonably as we abolished distinctions between licensees and invitees. 294 Minn. 161, 173-74, 199 N.W.2d 639, 647 (1972). In Doe v. Brainerd International Raceway, Inc., we recognized that an auto-racing facility must be “reasonably safe for its patrons, which includes controlling and supervising other patrons to prevent foreseeable harm.” 533 N.W.2d 617, 621 (Minn.1995).

Given the landowner’s general duty to adjoining or nearby premises, liability has been regularly imposed in cases concerning pesticide spray that drifted and killed bees. See, e.g., McKennon v. Jones, 219 Ark. 671, 244 S.W.2d 138, 139 (1951); Lundberg v. Bolon, 67 Ariz. 259, 194 P.2d 454, 459 (Ariz.1948); Miles v. A. Arena & Co., 23 Cal.App.2d 680, 73 P.2d 1260, 1263 (1937); see generally Jonathan M. Purver, Liability for injury caused by spraying or dusting of crops, 37 A.L.R.3d 833, 863-68 (1971 & Supp.2004). However, liability has not been imposed in cases involving bees that came in contact with pesticides while foraging on the land of another on the theory that bees were trespassers. Lenk v. Spezia, 95 Cal.App.2d 296, 213 P.2d 47, 51 (1949) (holding that owner of honey bees could not recover for loss of bees that procured the pesticide while “trespassing on the fields of other owners of land * * * unless the poison was distributed wantonly, maliciously, or with the deliberate intent to injure or destroy the bees”); see also Bennett v. Larsen Co., 118 Wis.2d 681, 348 N.W.2d 540, 547-48 n. 3 (Wis.1984) (stating that while trespass theory might not be appropriate for honey bees that by nature are foragers, landowners owe no duty to protect the bees, “except that the land possessor cannot intentionally or wantonly destroy the bees”).

In Minnesota, a landowner owes only a limited duty to trespassing livestock. Witherell v. Milwaukee & St. Paul Ry. Co., 24 Minn. 410, 414 (1878). Instead, liability for trespassing animals “could only be predicated on willful or wanton negligence.” Lindemann v. Chicago, R.I. & P. Ry. Co., 154 Minn. 363, 365, 191 N.W. 825, 825-26 (1923). But once the landowner discovers the trespassing animals’ presence, the landowner is “bound to use reasonable care to avoid injuring them.” Witherell, 24 Minn, at 414.

Here, the beekeepers alleged that the DNR and IP intentionally sprayed pesticides with knowledge that foraging honey bees would be killed and/or would bring the pesticide back to the hives. Consequently, identifying the status of honey bees is unnecessary here because even if we were to classify bees as trespassers, a landowner is under a duty of reasonable care “once he knows or is on notice of both the trespasser’s presence and the impending danger.” Dobbs, supra at 593. If, as the beekeepers allege, the DNR and IP had actual knowledge or were on notice of foraging honey bees, they may have come under a duty of reasonable care.

It is true, as the DNR and IP note, that the beekeepers’ common-law negligence claim is somewhat atypical. Most pesticide-related litigation involves actions against those who make or sell pesticide, or against applicators who allow pesticide to drift to neighboring land. Robert F. Blomquist, Applying Pesticides: Toward Reconceptualizing Liability to Neighbors for Crop, Livestock and Personal Damages from Agricultural Chemical Drift, 48 Okla. L.Rev. 393, 395-96 (1995). In this case, however, no manufacturer is a party, and it is the bees — not the chemicals — that have traveled to the neighboring land.

Nevertheless, we cannot ignore comprehensive efforts addressing pesticide hazards. Congress has enacted the Federal Insecticide, Fungicide, and Rodenti-cide Act (FIFRA), 7 U.S.C. § 136 (2004), which regulates pesticide marketing and use and authorizes the Environmental Protection Agency (EPA) to enforce pesticide rules and approve pesticide labels. States may enact statutes governing pesticide use as long they do not impose requirements “in addition to or different from FIFRA requirements.” Dow Agrosciences LLC v. Bates, 332 F.3d 323, 328 (5th Cir.2003), pet. for cert. granted, — U.S. -, 124 S.Ct. 2903, 159 L.Ed.2d 810 (2004). To that end, the Minnesota Legislature enacted the Minnesota Pesticide Control Act, Minn.Stat. § 18B (2004), which balances the state’s environmental and agricultural interests and authorizes the state Commissioner of Agriculture to adopt and enforce pesticide rules within the bounds of federal law.

As for judicial involvement, FI-FRA preempts state-based negligence actions premised on breach of warranty, failure to warn, and other causes of action impinging on the EPA’s power to enforce labeling requirements. Dow Agrosciences LLC, 332 F.3d at 333; Netland v. Hess & Clark, Inc., 284 F.3d 895, 898 (8th Cir. 2002); Nat’l Bank of Commerce v. Dow Chem. Co., 165 F.3d 602, 608 (8th Cir. 1999). Other state-based negligence actions are permitted. Peterson v. BASF Corp., 675 N.W.2d 57, 70 (Minn.2004) (state consumer-fraud claim premised on improper marketing not preempted), pet. for cert. filed, 73 USLW 3076 (July 16, 2004, no. 04-81); Goeb v. Tharaldson, 615 N.W.2d 800, 819 (Minn.2000) (negligent misrepresentation and negligent testing claims not preempted). See also Dosdall v. Smith, 415 N.W.2d 332, 335 (Minn.App. 1987) (affirming finding of negligence against licensed pesticide applicator and agricultural consultant); Red River Spray Serv., Inc. v. Nelson, 404 N.W.2d 332 (Minn.App.1987) (affirming judgment against pesticide applicator who over-sprayed and damaged plaintiffs crops). Given this background and the land possessor’s general duty to use property in a way that does not injure others, it seems to us that the beekeepers’ common-law action for the alleged loss of the bees foraging on DNR and IP land is a viable one.

To determine whether summary judgment was properly granted against the beekeepers’ negligence claim, we examine the record in the light most favorable to them. Based on documents that the beekeepers have provided, we conclude that the beekeepers satisfied their initial burden of producing evidence that the DNR and IP had actual knowledge or notice of foraging honey bees, and that the DNR and IP may have acted unreasonably so as to breach a common-law duty. The minutes of a January 2000 meeting indicate that the beekeepers informed the DNR and IP of foraging honey bees, and IP “acknowledg[ed] a need to be looking for new products that will control Cottonwood Leaf Beetle but have less impact upon bees.” In addition, records kept by beekeeper Anderson suggest that the DNR and IP directed that spraying take place after that meeting, and that the DNR altered its policy for using Sevin XLR Plus. We also note that the beekeepers provided affidavits from experts who challenged Department of Agriculture testing procedures and who concluded that Sevin XLR Plus was to blame for the bee deaths. Accordingly, we conclude that summary judgment against the beekeepers was improper.

As for the Swanson or over-spray incident, the court of appeals reversed the district court’s denial of summary judgment under the independent-contractor defense. The general rule is that an employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servants. Conover v. Northern States Power, 313 N.W.2d 397, 403 (Minn.1981) (citing Restatement (Second) of Torts § 409 (1965)). But an employer of an independent contractor may be found negligent when it retains detailed control over a project and then fails to exercise reasonably careful supervision over that project. Conover, 313 N.W.2d at 401. Here, allegations of liability were based on evidence that the DNR retained control over the operative detail of the work, was aware of beehives adjacent to the Swanson property but failed to inform the contractor, and forgot to obtain the landowner’s permission before directing the contractor to spray the product. Although the DNR denied the allegations, as the district court concluded, the allegations were sufficient to preclude summary judgment in favor of the DNR.

II.

The beekeepers also made claims of negligence per se. Although negligence per se may be pleaded separately from negligence, the two causes of action are inseparably intertwined. “Negligence per se is a form of ordinary negligence that results from violation of a statute.” Seim v. Garavalia, 306 N.W.2d 806, 810 (Minn.1981). “A per se negligence rule substitutes a statutory standard of care for the ordinary prudent person standard of care, such that a violation of a statute * * * is conclusive evidence of duty and breach.” Gradjelick v. Hance, 646 N.W.2d 225, 231 n. 3 (Minn.2002). For a statutory violation to satisfy the duty and breach elements, the person harmed by the violation must be among those the legislature intended to protect, and the harm must be of the type the legislature intended to prevent by enacting the statute. Anderson v. Anoka Hennepin Ind. Sch. Dist. 11, 678 N.W.2d 651, 662-63 (Minn.2004). Summary judgment is proper if there is a “complete lack of proof on any of the essential elements” of a negligence per se claim. Gradjelick, 646 N.W.2d at 234.

The Minnesota Pesticide Control Act prohibits the use of pesticides in a manner “that is inconsistent with a label or labeling as defined by FIFRA.” Minn.Stat. § 18B.07, subd. 2(a)(1) (2004). The label directions of the Sevin XLR Plus product specified that certain precautions should be taken with regard to honey bees because, as the label warned, the product was “highly toxic” to bees. The label also said: “Do not apply this product or allow it to drift to blooming crops or weeds if bees are foraging in the treatment area.”

In support of their motion for summary judgment, the DNR and IP offered the affidavit testimony of the director of the Minnesota Department of Agriculture Pesticide Enforcement Section who said that “in order to be in violation of the label and in violation of the law, an applicator would need to spray Sevin XLR Plus at a time where there were a significant number of bees actively foraging in the treatment site and a significant number of blooming crops or weeds present.” The agency official, who served as an expert for the DNR and IP, said that his label interpretation was consistent with that of the EPA and that he found no evidence of a label violation in this case, except for the July 21, 1999 Swanson incident. In opposing the motion, beekeepers offered the affidavit of their expert, an entomologist, who explained the method for determining foraging and non-foraging periods for honey bees as contemplated by the label and concluded that the pesticide use in this case was not consistent with label directions for the Sevin XLR Plus product. The district court characterized the testimony of the state agency expert as the agriculture department’s “official position” and noted that “great deference” routinely was given to agency determinations.

When reviewing agency decisions, courts “adhere to the fundamental concept that decisions of administrative agencies enjoy a presumption of correctness, and deference should be shown by courts to the agencies’ expertise and their special knowledge in the field of their technical training, education, and experience.” In re Excess Surplus Status of Blue Cross & Blue Shield of Minnesota, 624 N.W.2d 264, 278 (Minn.2001) (quoting Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824 (Minn.1977)). But in this case, the expert was not an agency decision-maker engaged in the evaluation of evidence by using his own expertise in an enforcement proceeding or adjudication. The expert’s affidavit was obtained for purposes of litigation and was offered less than two weeks before the summary judgment hearing and a year and a half after the state had been sued. Consequently, the expert’s interpretation of the pesticide label was not entitled- to agency decision-maker deference. Nor, as the DNR and IP claim, was the expert’s opinion entitled to Seminole Rock deference. Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945) (holding that administrative agency’s construction of its own ambiguous regulation is entitled to “controlling weight unless it is plainly erroneous or inconsistent with the regulation”); see John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L.Rev. 612, 639 (1996) (explaining that “under Seminole Rock, the reviewing court asks whether the agency action— typically an enforcement action or adjudication — is consistent with an agency regulation”).

On motion for summary judgment, a court is to consider all affidavits, along with pleadings, depositions, answers to interrogatories, and admissions from the nonmoving parties as well as moving parties. Minn. R. Civ. P. 56.03. The non-moving party does not, need to produce clear and convincing evidence to defeat a summary judgment motion. The moving party has the burden of showing an absence of factual issues before summary, judgment can be granted. Lowry Hill Properties, Inc. v. Ashbach Const. Co., 291 Minn. 429, 440,194 N.W.2d 767, 774 (1971). Expert testimony .about a pesticide label at the summary judgment stage may create genuine issues of fact. See Netland, 284 F.3d at 900. Accordingly, the negligence per se claim is also remanded to the district court.

III.

Finally, the beekeepers contend that the DNR and IP created a private nuisance on the beekeepers’ property. Private nuisance is limited to real property interests. See Schrupp v. Hanson, 306 Minn. 151, 235 N.W.2d 822 (1975) (action for damages and to enjoin as nuisance poultry and hog farm maintained by defendants on property adjacent to plaintiffs’ residence); Schmidt v. Village of Mapleview, 293 Minn. 106, 108, 196 N.W.2d 626, 628 (1972) (stating that “[i]t is elementary that the term ‘nuisance’ denotes an infringement or interference with the free use of property”); 4 J.D. Lee & Barry A. Lindahl, Modem Tort Law, Liability and Litigation § 35:4 (2d. ed.2003) (stating that “a property interest is essential to maintain the action”). The beekeepers lacked the requisite property interest to maintain a private nuisance claim.

IV.

The DNR claims official immunity. The district court rejected the argument as it related to the Swanson incident, characterizing the DNR’s actions as ministerial, not discretionary, and therefore not subject to official immunity. We agree. Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 315 (Minn.1998). The district court did not address immunity surrounding other claims, and the court of appeals did not reach the issue at all. Therefore, the remaining immunity issues may be addressed on remand.

V.

In summary, we hold that (1) a land possessor with actual knowledge or notice of foraging honey bees on the property comes under a duty of reasonable care in the application of pesticides; (2) the state agency expert’s interpretation of the pesticide label was not entitled to judicial deference; and (3) the beekeepers lacked the requisite property interest for a private nuisance claim. We reverse the grants of summary judgment for common-law negligence and negligence per se and remand those claims to the district court. The dismissal of the nuisance claim is affirmed.

Affirmed in part, reversed in part, and remanded to the district court.

ANDERSON, G. BARRY, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

MEYER, Justice

(dissenting).

I respectfully dissent from the majority’s conclusion that a beekeeper enjoys a common law action for damages to bees that forage on another’s land. I do not agree with the broad principle of law on which the majority builds its holding that “[l]andowners owe a duty to use their property so as not to injure the property of others ” (citing to Dan B. Dobbs, The Law of Torts § 231 (2000) (emphasis added)). Neither this court nor any of the authoritative treatises on tort law have ever recognized such a broad duty to others’ property. A landowner’s duty to others is more fairly and narrowly stated as a duty not to create “a serious interference with [neighboring landowners’] use and enjoyment of land by pollution or the like.” Id. All of the cases cited by the majority in support of a broad duty to others’ property involve either a violation of agency standards or a circumstance where one landowner’s use was interfering with a neighboring landowner’s use of their own property. The cases simply don’t address the very unique situation presented here.

The traditional common law rule regarding negligence claims for injuries to trespassing animals is that “[ujnless otherwise required by statute, a landowner owes no duty with respect to trespassing animals except to refrain from willfully or wantonly injuring them.” 65A C.J.S. Negligence § 431. The unique situation presented here is the fact that bees fly onto a neighboring landowner’s property, the bees remove a substance from the landowner’s property, and bring it back to their hive. Only two appellate courts have addressed what duty landowners owe to bees foraging on their property. Both the Wisconsin Supreme Court and the California Court of Appeals have addressed this question, and both courts have concluded that there should be no common law duty owed to bees foraging on a landowner’s property. See Bennett v. Larsen Co., 118 Wis.2d 681, 348 N.W.2d 540, 547 n. 3 (Wis.1984); Lenk v. Spezia, 95 Cal.App.2d 296, 213 P.2d 47, 51 (1949). The Wisconsin Supreme Court explained this rule in Bennett:

[Bjecause land possessors have the right to reasonably use their property as they see fit, and because bees tend to enter property and there is little the land possessor can do to prevent their entry, there should be no common law duty owed to protect the bees on the property, except that the land possessor cannot intentionally or wantonly destroy the bees.

Bennett, 348 N.W.2d at 547-48 n. 3.

Common law liability for damage to bees has been limited to those cases where pesticide spray has drifted onto a neighbor’s land and caused damage. The majority is plowing new ground in tort law by recognizing a common law duty owed to foraging bees. The majority concludes that a common law duty to foraging bees springs from the existence of comprehensive federal and state regulation of pesticides. The common law is “the body of law derived from judicial decisions, rather than from statutes or constitutions.” Black’s Law Dictionary 293 (8th ed,2004). It makes no sense to say that a newfound common law duty springs from a duty arising from state or federal regulation — it is more appropriate to grant a remedy to the beekeepers under the principle of negligence per se, which “usually arises from a statutory violation.” Black’s Law Dictionary 1063 (8th ed.2004).

The claim of negligence per se is that pesticides were applied in violation of federal and state regulations. Since the majority concludes that the beekeepers do have the remedy of negligence per se available, there is no reason to create a duty owed to beekeepers, independent from the provisions on the label. It is difficult for me to imagine how a jury could determine that spraying was conducted in a manner that creates an unreasonable risk of harm without reference to the label’s requirements. The court should not create a common law duty of care owed to foraging bees.

BLATZ, Chief Justice

(dissenting).

I join in the dissent of Justice MEYER.

      . "The essential elements of a negligence claim are: (1) the existence of a duty of care; (2) a breach of that duty; (3) an injury was sustained; and (4) breach of the duty was the proximate cause of the injury." Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn.1995).

      . As a general rule, trespassing livestock must have committed a “wrongful entry” in the land possessor’s eyes. Black’s Law Dictionary, 1541 (8th ed.2004). Honey bees join native bees in pollinating a wide variety of crops, to the benefit of the party who plays host to the bees. See Minnesota Department of Agriculture, Apiary Program, at http://www.mda.state.mn.us/apiary (last visited February 16, 2005). Accordingly, it might prove problematic to characterize bees as unwelcome on land where trees and other vegetation are grown for commercial purposes, particularly where agricultural need for bees is at least as great as the need for pesticides.

      . We understand that Minnesota beekeepers must register their apiaries with the Department of Agriculture each year. Minn.Stat. § 19.64, subd. 1 (2004). We also understand that the department makes the registry information readily available by phone and on the Internet. See Minnesota Department of Agriculture, Apiary Program, at http://www.mda.state.mn.us/apiary (last visited February 16, 2005); searchable "Honey Bee Location” Internet database at http://www2.mda.state.mn.us/webapp/lis/ apiaryloc — default.jsp (last visited February 16, 2005). However, we do not view such ready access to this information as obligating land possessors to investigate for the presence of honey bees. Some states have pesticide notification programs under which beekeepers provide written notice of their hives to surrounding commercial agriculture operations or to authorities charged with granting pesticide-permit applications. See Theodore A. Feitshans, An Analysis of State Pesticide Drift Laws, 9 San Joaquin Agricultural L.Rev. 37, 70-78 (1999). It seems more workable and practical that beekeepers who want protection from pesticide application provide notice to those who possess land where the beekeepers know or should know their bees will forage.

      . We are neither "plowing new ground," as the dissent says, nor recognizing a new common-law duty. In Minnesota, upon discovery of trespassing livestock, landowners "are not authorized to injure them willfully or carelessly, but are bound to use reasonable care to avoid injuring them.” Witherell, 24 Minn, at 414. That pesticide litigation more typically involves chemical drift ought not to relieve a commercial enterprise from the duty of reasonable care in the application of pesticides to avoid injuring the commercial enterprise of its neighbor. "Every one engaged in any business or occupation must use reasonable precautions to prevent such business or occupation from working injury to others.” Binder v. Perkins, 213 Kan. 365, 516 P.2d 1012, 1016 (1973) (paraphrasing from Lohenstein v. McGrow, 11 Kan. 645, 649 (1873)). Here, we are asked to decide whether, upon discovery of honey bees from neighboring apiaries foraging on their respective properties, the DNR and IP had a duty of reasonable care in the spraying of pesticides. By application of traditional common-law principles, we believe they would. To hold otherwise would carve out an exception of liability for damage to honey-producing operations. In referencing policy in support of our determination, we are not recognizing a new common-law duty.

      . Minnesota Statutes § 18B.07 provides in relevant part:
      18B.07 Pesticide use, application, and equipment cleaning.
      Subdivision 1. Pesticide use. Pesticides must be applied in accordance with the product label or labeling and in a manner that will not cause unreasonable adverse effects on the environment within limits prescribed by this chapter and FIFRA.
      Subd. 2. Prohibited pesticide use. (a) A person may not use, store, handle, distribute, or dispose of a pesticide, rinsate, pesticide container, or pesticide application equipment in a manner:
      (1) that is inconsistent with a label or labeling as defined by FIFRA;
      (2) that endangers humans, damages agricultural products, food, livestock, fish, or wildlife; or
      (3) that will cause unreasonable adverse effects on the environment.
      As indicated previously, a state may regulate pesticide use as long as the regulation does not permit uses prohibited by federal law. 7 U.S.C. § 136v(a) (2004).

      . The entire "bee caution” reads:
      This product is highly toxic to bees exposed to direct treatment or residues on blooming crops or weeds. However, field studies have shown that SEVIN® brand XLR PLUS Carbaryl Insecticide is less hazardous to honey bees than other carbaryl products when direct application to bees is avoided and the spray residues have dried. For maximum honey bee hazard reduction, apply from late evening to early morning or when bees are not foraging. Do not apply this product or allow it to drift to blooming crops or weeds if bees are foraging in the treatment area. However, applications may be made during foraging periods if the beekeeper takes one of the following precautionary measures prior to bee flight activity on the day of treatment: (1) Confine the honey bees to the hive by covering the colony or screening the entrance or; (2) locate hives beyond bee flight range from the treated area. Precautionary measures may be discontinued after spray residues have dried. Contact your cooperative Agricultural Extension Service or your local Aventis CropScience representative for further information.

      . Continued adherence to Seminole Rock has come under strong criticism. E.g., Manning, supra at 639-40 (arguing that Seminole Rock deference violates constitutional separation of powers restrictions by uniting the law-making and law-exposition functions in the same agency hands). Professor Manning notes that some members of the Supreme Court have expressed doubts as tó the wisdom of continued adherence to Seminole Rock. Manning, supra at 615-17.

      . The DNR and IP also assert that the beekeepers waived vicarious liability at the district court, and we note that at the summary judgment hearing the beekeepers' counsel stated that "[w]e’re not claiming vicarious liability. We’re claiming direct negligence by both the state and IP[.]”


author: /s/ Alan C. Page Associate Justice

text:
    Joseph SWEET (deceased), by Germaine Deagan SWEET, Relator, v. TREMENDOUS! ENTERTAINMENT INC., and St. Paul Companies, Respondents.
    No. A04-2149.
    Supreme Court of Minnesota.
    March 15, 2005.
    Denise D. Lemmon, Maguire & Lem-mon, P.C., Eagan, MN, for Relator.
    Barbara L. Heck, St. Paul, MN, for Respondents.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed October 15, 2004, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (summary dispositions have no precedential value because they do not commit the court to any particular point of view, doing no more than establishing the law of the case).

BY THE COURT:

/s/ Alan C. Page Associate Justice


author: /s/Sam Hanson Associate Justice

text:
    Alan L. BRADWELL, Relator, v. U.S. ROOF TECH CORPORATION, and CNA Commercial Insurance, Respondents.
    No. A04-2148.
    Supreme Court of Minnesota.
    March 15, 2005.
    As Amended March 23, 2005.
    Raymond R. Peterson, McCoy, Peterson, Jorstad, Brabbit, Ltd., Minneapolis, MN, for Bradwell, Relator.
    Krista Leigh Twesme, Minneapolis, MN, for Respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed October 22, 2004, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (summary dispositions have no precedential value because they do not commit the court to any particular point of view, doing no more than establishing the law of the case).

BY THE COURT:

/s/Sam Hanson Associate Justice


author: HANSON, Justice.

text:
    STATE of Minnesota, Respondent, v. Lionel Lee WASHINGTON, Appellant.
    No. A03-980.
    Supreme Court of Minnesota.
    March 17, 2005.

      John M. Stuart, State Public Defender, Theodora Gaitas, Assistant Public Defender, Minneapolis, MN, for Appellant’s.
    Mike Hatch, Attorney General, St. Paul, MN; and Douglas H. Johnson, Washington County Attorney, John W. Fristik, Assistant County Attorney, Heather Dawn Pipenhagen, Assistant County Attorney, Stillwater, MN, for Respondent’s.
   OPINION

HANSON, Justice.

Appellant Lionel Lee Washington was convicted of ten counts of criminal sexual conduct for sexually abusing his girlfriend’s 15-year-old daughter, M.D. In affirming the conviction, the court of appeals held that evidence of a sexual assault that Washington had committed against a 15-year-old girl more than 16 years earlier was properly admitted as Spreigl evidence to prove a common modus operandi. State v. Washington, 2004 WL 1725753 at *4 (Minn.App. Aug.8, 2004). The court did not specifically address Washington’s argument that the scope of the Spreigl evidence was overbroad and included “extraneous” details that were more prejudicial than probative. We affirm.

In January 2002, M.D., then 17 years old, reported that 41-year-old Washington had sexually abused her between the winter of 2000 and October 2001. M.D. told a police investigator and a social worker that the first incident had occurred when Washington took her to a Saint Paul duplex and forced her to perform oral sex on him, as discipline and under the guise of teaching her how to do it properly. M.D. reported that the subsequent abuse, usually oral sex, occurred at the duplex and at her family’s Cottage Grove apartment, where Washington lived for much of the relevant time. M.D. told investigators that Washington threatened that if she told anyone of the abuse, he would harm her, her mother and her two sisters. Sometimes he displayed a gun while making these threats.

Washington was charged in Washington County District Court with ten counts of criminal sexual conduct with a person younger than 18 years old. Minn.Stat. §§ 609.342, subd. 1(b), (g), (h)(iii); 609.343, subd. 1 (b), (g), (h)(iii); and 609.344, subd. 1(b), (e), (f), (g)(iii) (2004). The state served notice that it intended to offer Spreigl evidence that Washington had sexually abused two other females, ages 14 and 15, in 1982 and 1984. In connection with the 1984 incident involving the 15-year-old, Washington had pleaded guilty to third-degree criminal sexual conduct and first-degree tampering with a witness. No charges were pursued on the 1982 incident.

At a pretrial hearing, both victims of the 1982 and 1984 abuses testified that Washington had forced them to perform oral sex on him to teach them how to do it properly, required them to wash after each sexual assault, photographed them nude, threatened them with harm if they told anyone, and displayed a gun. M.K., the victim of the 1984 abuse, testified that Washington once had cut her neck with a knife. M.K. also said that while she was hospitalized and Washington was awaiting trial, he had assaulted her in the hospital and threatened further harm if she testified at his trial. M.K. did not volunteer information during the pretrial hearing about why she was in the hospital, and neither the attorneys nor the district court asked.

Before trial, the district court issued an order concluding that both Spreigl incidents were relevant and proven by clear and convincing evidence, and that the time gap did not bar admission because Washington had spent “substantial time” in jail or prison during the interval. The district court reserved ruling on the admissibility of evidence of these incidents until the state had offered all of its non-Spreigl evidence at trial.

At trial, M.D. testified that the first incident of abuse occurred after she had sneaked out of her home to meet a boyfriend. M.D. was walking home when Washington directed her into his car, warned M.D. that her mother was “too upset” about M.D.’s behavior for her to go home, and then took her to a Saint Paul duplex where Washington forced her to perform oral sex on him, saying he would teach her how to do it properly. M.D. said that Washington confined her at the duplex for 3 or 4 days, forcing her to have sex approximately three more times. M.D. testified that trips to the duplex for sex continued through the spring of 2000. She said that Washington took nude photographs of her, told her she “could be a stripper, and dancer,” and at one point forced her to drink alcohol and then penetrated her with a sex toy. M.D. testified that further incidents of abuse occurred at her home during evenings when her mother was at work and her two sisters were asleep. She said that she often was forced to bathe after sex, and that Washington sometimes displayed a gun as he threatened M.D. not to report the abuse.

M.D. testified that she revealed the abuse to her mother in March 2001, but that Washington accused M.D. of fabrication, and that the abuse resumed a month later. M.D. said she attempted suicide twice and that Washington counseled M.D.’s mother against taking M.D. for medical treatment, once commenting that M.D. likely would “make up some lie” when queried by health-care workers.

On the last day of the state’s case in chief, the district court announced that it would admit M.K.’s testimony about the 1984 incidents “involving criminal sexual conduct as well as tampering with a witness incident” but it would exclude evidence of the 1982 abuse as cumulative. After the state had offered all of its non-Spreigl evidence, the court instructed the jury that it was about to hear evidence of a prior “occurrence,” that the evidence was to be used only for “determining the state of mind, intent, motive, common scheme or plan, or lack of mistake which the defendant possessed on the dates charged in the complaint,” and that using it to convict the defendant “might result in unjust double punishment.”

M.K. then testified. M.K. told how she met Washington at an arcade on Hennepin Avenue in Minneapolis in 1984 and that Washington had another female show M.K. “the ropes” of prostitution. M.K. testified that she gave Washington the prostitution proceeds and lived at what she thought to be Washington’s home. She testified that the first incident of abuse occurred when Washington taught her how to perform oral sex. M.K. testified that Washington “made” her take a shower so “there would be no trace” of the sex acts.

M.K. testified that over the next couple of months, she had sexual contact with Washington periodically. She said that she was forced to bathe after each occurrence, that Washington “had a gun and he threatened to kill” her if she disclosed the incidents, that he once put a gun in her mouth, and that he cut her throat with a knife. She also said that Washington photographed her in a “nightie,” and that he continued to force her into prostitution. The abuse ended after M.K. escaped Washington’s home and called a police officer who had once apprehended her as a runaway.

M.K. also testified about the contact she had with Washington while she was hospitalized. She said Washington had confronted her in the hospital, choked her, and warned her “not to show up in court or I would be dead, and not to testify.” The state asked why M.K. was hospitalized, and she responded: “Prom all the sexual stuff, the prostitution, I developed a disease called PID and I needed to have surgery.” Washington did not object to that question or M.K.’s response. On cross-examination, Washington’s counsel asked M.K.: “And you indicated you were in the hospital for a disease called CIV?” M.K. responded: “PID. It’s not a disease, it’s my ovaries were inflamed or my uterus was inflamed.”

During redirect examination, the state asked permission for M.K. to display to the jury her neck scar from the knife injury she attributed to Washington. She displayed the scar without objection from Washington. Also on redirect, after answering a question about what had happened when she tried to flee Washington, M.K. testified unprompted: “That man destroyed my life. I can’t even have children. I would just like to have one son.” Washington objected to this testimony as nonresponsive and the district court sustained the objection. Washington did not move to strike the answer or seek a curative instruction and the court did not sua sponte order the testimony stricken or instruct the jury to disregard it.

The jury found Washington guilty on all counts. In affirming the conviction, the court of appeals held that M.K.’s testimony, while involving an incident that had occurred more than 16 years earlier, was admissible because Washington had spent “more than 50% of the intervening years [after his 1985 conviction] in prison” and he abused M.D. “in a manner similar to his abuse of M.K. in 1984.” State v. Washington, 2004 WL 1725753 at *4. The court concluded that the Spreigl evidence effectively disproved Washington’s claim that M.D. was fabricating the abuse to retaliate against his strict rules, and therefore the district court did not abuse its discretion by concluding that the evidence was more probative than prejudicial. Id. The court of appeals noted, but did not specifically address, Washington’s complaint that “M.K’s Spreigl testimony contained extraneous information.” Id. at *3. We granted review solely on the Spreigl issues.

I

We first examine whether any part of the evidence about the 1984 incidents involving M.K. was admissible as Spreigl evidence. Washington argues that the incidents were too remote to be relevant because they occurred more than 16 years prior to the last of the reported abuse of M.D. A district court’s decision to admit Spreigl evidence is examined for abuse of discretion and the defendant bears the burden of proving that an error occurred and that the error was prejudicial. State v. Blom, 682 N.W.2d 578, 611 (Minn.2004).

Spreigl evidence is not admissible to prove that the defendant acted in conformity with his character, but is admissible for other purposes, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Minn. R. Evid. 404(b); State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965). The overarching concern is that the evidence might be used for an improper purpose, such as suggesting that the defendant’s prior bad acts show that he has a propensity to commit the present bad acts, or that the defendant is a “proper candidate for punishment” for his past acts. State v. Billstrom, 276 Minn. 174, 179, 149 N.W.2d 281, 284-85 (1967). Spreigl evidence should “complete the picture” of a defendant, not “paint another picture.” Ture v. State, 681 N.W.2d 9, 15-16 (Minn.2004) (quotations omitted).

Given these special concerns sur-, rounding use of Spreigl evidence, the state bears the burden for securing its admissibility by (1) providing notice that the state intends to use the evidence, (2) clearly indicating what the evidence is being offered to prove, (3) offering clear and convincing proof that the defendant participated in the other offense, (4) proving that the Spreigl evidence is relevant and material to the state’s case, and (5) proving that the probative value of the Spreigl evidence is not substantially outweighed by its potential for unfair prejudice. State v. Kennedy, 585 N.W.2d 385, 389 (Minn.1998); Minn. R. Evid. 403, 404(b).

Washington concedes that the state has met its burden as to prongs (1), (2), and (3) — specifically, that the state provided notice that the evidence was being offered to prove modus operandi and the state provided clear and convincing proof that the 1984 abuse occurred. He contends that the 1984 abuse was too remote to be probative of his modus operandi in 2001, and that any probative value was substantially outweighed by its potential for unfair prejudice.

The degree of proximity between the prior and charged acts, while bearing-somewhat on the probative value analysis, is largely a factor in determining whether the Spreigl evidence is relevant to the prosecution. Blom, 682 N.W.2d at 612; State v. Wermerskirchen, 497 N.W.2d 235, 242 n. 3 (Minn.1993). In general, the prior acts become less relevant as time passes. Thus, the greater the time gap, the more similar the acts must be to lessen the likelihood that the Spreigl evidence “will be used for an improper purpose.” Ture, 681 N.W.2d at 15; see also State v. Bolte, 530 N.W.2d 191,198 (Minn.1995) (15-year-old rape conviction not relevant in murder prosecution).

We decline to adopt a bright-line rule for determining when a prior bad act has become too remote to be relevant. Compare Minn. R. Evid. 609(b) (evidence of witness’ prior conviction generally inadmissible for impeachment purposes if more than 10 years have elapsed since date of conviction or release from confinement). Instead, “the preferred approach is for the trial court to focus on the closeness of the relationship between the other crimes and the charged crimes in terms of time, place and modus operandi.” State v. Frisinger, 484 N.W.2d 27, 31 (Minn.1992). Our review for abuse of discretion reflects the fact that the district court is best positioned to weigh those factors. State v. Johnson, 568 N.W.2d 426, 434 (Minn.1997).

We confronted a similar time gap in State v. Rainer, 411 N.W.2d 490, 493 (Minn.1987), a case involving the murder of a woman the defendant had hoped to marry but who had indicated a desire to terminate the relationship. While excluding some prior acts that were not adequately supported by the evidence, the district court did admit six acts of violence attributable to the defendant, including five acts involving three prior wives, the oldest of which had occurred 16 to 19 years before the charged offense. Id. at 496. We held that the prior incidents, while not closely related in time to the charged offense, were admissible because they were “incidents of past violence, each one toward a significant woman in defendant’s life (or someone closely associated with her), out of jealousy or anger, * * * [that] shows a repeating pattern of very similar conduct not merely a general propensity toward violence.” Id. at 497. We noted that admissibility of the 16-year-old incident was bolstered by proof of intervening acts that had occurred 10 years and 2 years before the charged incident. Id.

Six years later, in State v. Wermerskirchen, we confronted an even greater time gap between the prior bad act and the charged acts. 497 N.W.2d at 237. We held that testimony about the defendant’s fondling of his 13-year-old niece, 19 years before trial, was admissible in a prosecution charging the defendant with fondling his minor daughter because it “was highly relevant in that it showed an ongoing pattern of opportunistic fondling of young girls within the family context and, therefore, tended to disprove the defense that [the victim] was fabricating or imagining the occurrence of sexual contact.” Id. at 242. Again, as in Rainer, the relevance of the oldest acts was bolstered by intervening acts. Id. at 237-38. We noted that Wennerskirchen, like Spreigl, involved charges of criminal sexual conduct involving a child' — -cases often complicated by matters of secrecy, vulnerability, lack of physical proof of the crime, and the credibility of child witnesses. Id. at 240-41 (citing 22 C. Wright and K. Graham, Federal Practice & Procedure — Evidence § 5239 at 461-62 (1978)).

Two years after Wennerskirchen, we decided State v. Bolte where we held that the district court erred in admitting a 15-year-old conviction for the rape of a woman in a prosecution for first-degree murder in which an unwanted homosexual advance was offered as the motive. 530 N.W.2d at 198. We noted that the prior conduct was not similar to the charged offense and therefore, “[g]iven the time lapse,” was inadmissible. Id.

Most recently, in State v. Blom, we upheld admission of the defendant’s prior kidnapping and sexual assault of two 15- and 16-year old women, which occurred 16 years before the kidnapping and murder of a 19-year-old woman. 682 N.W.2d at 601, 612. We held that even though the defendant had not been charged with sexual assault for the current incident, the district court did not abuse its discretion in admitting the Spreigl evidence because it “involved the kidnapping of young, petite women to remote, wooded areas * * * [and] subduing the women by applying force at their neck and throat areas.” Id. We held that the lack of proximity in time, while “troubling,” did not bar admission because the defendant had been incarcerated for 6 of the 16 years, and was incapacitated from committing such crimes while in prison. Id. at 612 n. 18.

These cases show that a district court, when confronted with an arguably stale Spreigl incident, should employ a balancing process as to time, place, and mo-dus operandi: the more distant the Spreigl act is in terms of time, the greater the similarities as to place and modus operandi must be to retain relevance. They also show that concerns about acts that are remote in time are lessened where the defendant spent a significant part of that time incarcerated and other intervening-acts tend to bolster the prior act’s relevance and materiality. Such concerns are also lessened if the defendant was actually convicted of a crime based on the prior bad acts because the process of securing a conviction (i.e., obtaining a defendant’s plea of guilty or gathering and presenting evidence at a trial) reduces the actual prejudice to the defendant of being required to defend against claims concerning acts that occurred years ago.

Balancing these factors in Washington’s situation, we recognize that there are no intervening acts to bolster the relevance and materiality of the 16-year-old Spreigl evidence but we are persuaded that any concerns with the passage of time are outweighed by three facts: (1) Washington was actually convicted of the prior acts with M.K; (2) he spent over one-half of the 16-year period incarcerated; and (3) the prior acts are strikingly similar in mo-dus operandi to the charged acts. As to the latter, both victims were 15 years old, both were taught to perform oral sex and forced to bathe to eliminate evidence of sex, both were photographed nude or in provocative poses, and both were threatened with physical harm if they disclosed the acts. And evidence of modus operandi was relevant because Washington claimed that M.D. had fabricated her claims to retaliate against his strict ways.

Washington argues that the prior and charged acts are not sufficiently similar to overcome the time gap because there were some factual differences-Washington lived with M.D.’s family but “found” M.K. in a video arcade after she had run away from home; Washington did not force M.D. to work as a prostitute as he had done with M.K.; and Washington only threatened to physically harm M.D. but actually did harm M.K. But Spreigl evidence “need not be identical in every way to the charged crime.” State v. Lynch, 590 N.W.2d 75, 81 (Minn.1999). We conclude, as did the district court and court of appeals, that the Spreigl evidence reveals that Washington’s modus operandi was to initiate sexual contact with teenage girls, train them to perform sexual acts on him, control them by threats and coercion, and encourage them to exploit their sexuality. Accordingly, the district court did not abuse its discretion in determining that some testimony about the abuse of M.K. was relevant as Spreigl evidence.

Even relevant and material Spreigl evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice. Kennedy, 585 N.W.2d at 389; Minn. R. Evid. 403, 404(b). Spreigl evidence “should be excluded where it is merely cumulative and a subterfuge for impugning [a] defendant’s character.” Billstrom, 276 Minn, at 179, 149 N.W.2d at 284. The number of Spreigl witnesses should be limited to guard against a perceived “retrial” of the prior case that might “fixate the jury on the defendant’s guilt of the other crime.” Ture, 681 N.W.2d at 16.

The district court ruled that evidence of the 1984 abuse of M.K. was more probative than prejudicial, but that evidence of abuse of another victim, while relevant, was prejudicial because it was cumulative. By limiting the number of Spreigl incidents, the court properly guarded against admitting evidence that was unnecessary to the prosecution, that risked fixating the jury on prior incidents, and that might have treaded on the sometimes blurry line between proving modus operandi and impugning a defendant’s character. See Ture, 681 N.W.2d at 16. The court’s ruling on the admissibility of M.K’s testimony also suggested an attempt to minimize any unfair prejudice by admitting testimony about “the incidents involving criminal sexual conduct as well as the tampering with a witness incident.” Within those limits, the court’s conclusion that the proposed evidence was more probative than prejudicial was not an abuse of discretion.

II

Next, we address Washington’s challenge to the scope of M.K’s testimony. Washington concedes that there were “certainly some similarities” between the prior and charged acts, but argues that the district court should have excluded testimony of extraneous prejudicial facts, such as that M.K. was forced to work as a prostitute, that Washington cut her throat, that she contracted a pelvic disease, and that Washington’s actions were responsible for her infertility.

We agree with the premise of Washington’s argument, that the task of the district court to weigh probative value against prejudicial effect does not end with the preliminary decision to admit some Spreigl evidence. We have said that the district court should take “great care in limiting the [Spreigl] testimony so as to minimize the potential for unfair prejudice.” State v. Harris, 560 N.W.2d 672, 678 (Minn.1997). “When it is unclear whether Spreigl evidence is admissible, the defendant should be given the benefit of the doubt and the evidence should be excluded.” State v. Johnson, 568 N.W.2d at 433.

But the defendant bears the burden of challenging the scope of the Spreigl evidence. For example, in Ture, we agreed with the defendant that having 24 witnesses testify as to a Spreigl incident over nearly 3 days of a 12-day trial was “highly prejudicial,” but we faulted the defendant for failing to object. 681 N.W.2d at 16. We have said that the failure to object to Spreigl testimony constitutes waiver of the right to appeal unless (1) there was error, (2) the error was plain, and (3) the error affects the defendant’s substantial rights. State v. Vick, 632 N.W.2d 676, 684-85 (Minn.2001). If those three prongs are met, we may correct the error only if it “seriously affects the fairness, integrity or public reputation of judicial proceedings.” State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn.2001) (quoting Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)).

As in Ture, we agree with Washington that M.K.’s testimony should have been limited to exclude elements not needed or relevant to prove modus operandi. But, as in Ture, Washington failed to take the initiative to seek such limits. His response to the state’s Spreigl notice contained a generalized argument against the admissibility of any Spreigl evidence and did not alternatively seek to limit what he now calls “extraneous” facts. Although . 3 months elapsed between M.K.’s pretrial testimony and the start of trial, Washington did not submit a motion in limine to challenge the scope of M.K’s testimony. We realize that the district court’s Spreigl order came only 2 weeks before trial, but Washington could have challenged the scope of M.K.’s trial testimony right up to the moment she testified. See, e.g., State v. Smallwood, 594 N.W.2d 144, 149 (Minn.1999) (upholding the district court’s grant of defendant’s motion in limine brought after state’s opening statement).

During trial, Washington did not object when M.K. testified about her forced prostitution, when the state asked permission for M.K. to display her neck scar, or when M.K. testified that she had been hospitalized for a pelvic disease that she contracted as a result of Washington’s action. And Washington actually drew attention to the cause of M.K.’s hospitalization by clarifying the name of her disorder on cross-examination. Without specific objection to scope by the defendant, the situation is similar to that in State v. Vick, where we said that the district court had no “advance opportunity to consider the admissibility of [the challenged Spreigl] testimony” and that the district court did not err by failing “to sua sponte strike the testimony or to provide a cautionary instruction.” 632 N.W.2d at 685.

Washington did object to M.K’s unprompted testimony that Washington had “destroyed” her life, that Washington had made her infertile, and that she would “just like to have one son.” The district court sustained Washington’s objection to the testimony as nonresponsive, but Washington asserts that the court’s general jury instructions immediately before the Spreigl testimony and at the close of trial were inadequate to mitigate the highly inflammatory nature of this testimony.

We agree that this evidence risked sending the improper message that Washington was “a proper candidate for punishment.” Billstrom, 276 Minn, at 179, 149 N.W.2d at 284-85. But the burden was on Washington to request that it be stricken and that a specific curative instruction be given. State v. Jones, 678 N.W.2d 1, 22 (Minn.2004); State v. Darveaux, 318 N.W.2d 44, 49 (Minn.1982); see also Rairdon v. State, 557 N.W.2d 318, 325 (Minn.1996) (denying new trial because of counsel’s “deliberate failure to object contemporaneously, and his decision not to pursue a motion to strike”). Further, if Washington believed the testimony was so fundamentally prejudicial, his remedy would be to request a mistrial. See, e.g., Coralin v. State, 377 N.W.2d 14, 16 (Minn.1985) (defendant requested mistrial after challenging in-court identification elicited from Spreigl witness); State v. Marsyla, 269 N.W.2d 2, 3 (Minn.1978) (defendant requested mistrial after state introduced evidence not covered in Spreigl notice).

Because Washington did not move to strike, seek a curative instruction or request a mistrial, the question becomes whether plain error occurred when the district court, having sustained the objection to the testimony as non-responsive, did not act sua sponte to limit the testimony’s impact by providing a curative instruction or to eliminate that impact by granting a mistrial. State v. Manley, 664 N.W.2d 275, 283 (Minn.2003); State v. Baird, 654 N.W.2d 105, 113 (Minn.2002); State v. Shoop, 441 N.W.2d 475, 480 (Minn. 1989). We conclude that plain error did not occur. We do not agree that the district court must, or even should, interfere with the trial strategy of the defendant. To act sua sponte here would risk highlighting or enforcing rights that the defendant had, for tactical reasons, decided to waive.

Washington was not barred from presenting exculpatory evidence or from cross-examining either M.D. or M.K. We cannot say that the failure of the court to act sua sponte in reaction to the challenged testimony affected a substantial right requiring a new trial. Accordingly, we hold that the district court did not err by failing sua sponte to limit the scope of M.K’s trial testimony.

Affirmed.

      . Washington also argued that his consecutive sentences of 30 years and 10 years in prison were disproportionate to the severity of the offense. The court of appeals remanded to the district court to reconsider the sentences in light of Blakely v. Washington, 542 U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We do not consider any sentencing issues in this appeal.

      . Although M.K.’s forced prostitution arguably has little relevance, it does bear some similarity to Washington's suggestions that M.D. be a stripper (both show financial exploitation) and, in any event, Washington did not specifically object to the testimony about prostitution.

      . A district court may order a mistrial on its own motion, but its failure to do so is reviewed for abuse of discretion. State v. Long, 562 N.W.2d 292, 296 (Minn.1997).