author: STRINGER, Justice. PAGE, Justice BLATZ, C.J. PAUL H. ANDERSON, J.

text:
    In the Matter of the PETITION FOR IMPROVEMENT OF MURRAY COUNTY DITCH NO. 34.
    No. CX-98-2194.
    Supreme Court of Minnesota.
    July 27, 2000.
    Rehearing Denied Aug. 29, 2000.

      Jeff C. Braegelmann, Gislason & Hunter, L.L.P., New Ulm, for appellant.
    Leland Bush, Tyler, for respondent.
    Gerald W. Von Korff, Rinke-Noonan, St. Cloud, for amicus curiae.
    Paul M. Malone, Murray County Atty., Slayton, for Murray County.

      . "Improvement'' is "the tiling, enlarging, extending, straightening, or deepening of an established and constructed drainage system.” Minn.Stat. § 103E.215, subd. 2 (1998).

   OPINION

STRINGER, Justice.

Murray County Ditch 34 was originally constructed between 1914 and 1916 and runs for several miles through Skandia and Ellsborough Townships in Murray County, Minnesota. Its condition has substantially deteriorated since its construction. On September 14, 1993, respondents filed a petition for improvement of the ditch with the county drainage authority, requesting an improvement to the buried main tile system. After conducting a cost-benefit analysis required by Minn.Stat. § 103E.341 (1998), the drainage authority concluded that the benefits of the project exceeded its costs and ordered the improvement. In its cost-benefit analysis the drainage authority applied Minn.Stat. § 103E.215, subd. 6 (1998), providing that where an existing ditch needs repair and a petition for improvement pertains to a “separable” portion of the ditch, the cost of the repair is assessed against all property benefited by the entire drainage system, but the cost of the improvement is assessed only to those properties benefited by the improvement. See Minn.Stat. § 103E.215, subd. 6. Objecting property owners appealed the order to the district court, arguing that the cost of the project exceeded its benefits and the drainage authority incorrectly applied the statute because the section of the ditch designated for improvement was not separable from the entirety of the ditch, and therefore the costs of the project were unlawfully assessed against them. The district court and the court of appeals affirmed the drainage authority’s order of improvement. On review here, we affirm.

Murray County Ditch 34 was constructed as a buried main tile system with 32 tile branches containing several miles of tile lines and approximately 600 feet of open ditch at the outlet. On September 14, 1993, respondents, the owners of land through which the ditch passes, filed a petition for the improvement of the ditch with the Murray County Board of Commissioners stating that “over 200 acres of prime farmland is still underwater,” and requesting authority to dig an open ditch replacing the buried main tile line “beginning [at] the main tile line and commencing to the outlet of the main tile line only.” The County Board, acting as the drainage authority, evaluated the petition pursuant to Minn.Stat. § 103E.215, subd. 4 (1998), and pursuant to Minn.Stat. § 103E.215, subd. 5 (1998), appointed Sioux Engineering, Inc. (Sioux) to determine the costs of the improvement and to make a recommendation as to whether the ditch should be improved by construction of the open ditch or merely repaired to its original capacity. Sioux reported: “it is our opinion that the only method of reestablishing the drainage system’s originally installed capacities is to replace the drain the in its entirety * * * * with the construction of an open ditch.” The report also stated:

The existing drainage system is in need of repair, and the Petition for Improvement is for a separable part of the existing drainage system, consisting of the main branch. In this plan, the main branch ⅜ * ⅜ will be eliminated as a result of the improvement, and therefore, will not need to be repaired.

The report thus concluded that the existing drainage tile should be improved by the construction of an open ditch and that the portion of the ditch needing improvement was separable from the remainder of the drainage system.

Sioux’s report also determined the total cost of the project, then broke the total into two components: the cost of repairing the ditch back to its original condition when construction was completed in 1916, and the cost of improving the efficiency of the ditch over and above its originally constructed capacity. The re-port estimated the cost of repairing the separable part of the ditch to its originally constructed condition as $290,279.01 and the total cost of the entire improvement project as $593,565.43. The difference between the two calculations of $303,286.42 was the additional cost of improving the ditch beyond its originally constructed capacity.

The drainage authority also appointed three “viewers” to perform other statutorily mandated duties relating to the ditch project. For example, if the drainage authority determines that the original assessment of benefits to landowners as a result of the ditch do not reflect reasonable present day values, the viewers must redetermine the benefits and report the present day benefits and damages of the ditch. See Minn.Stat. § 103E.351, subd. 1 (1998). The present day estimated benefits are referred to as “redetermination” benefits and pursuant to Minn.Stat. § 103E.351, subd. 3 (1998), redetermination benefits are to be used in place of the original benefits “in all subsequent proceedings relating to the drainage system.” Minn.Stat. § 103E.351, subd. 3.

The original assessment of benefits when the ditch was completed in 1916 was $49,942.75; the viewers’ report estimated the redetermination benefits as $458,584.03 “based upon a comparison of the conditions which will exist with the drainage system repairs to the depth, grades and tile sizes as shown on the original plans with the conditions which would have. existed before the construction began.” Thus, $458,584.03 reflects the present day benefit of the ditch if repaired to an “as new” condition when constructed.

The viewers’ report also estimated the benefits of the portion of the project that represented an improvement over the ditch as originally constructed to be $508,766.72 “based upon a comparison of the conditions which would exist with the existing drainage systems in a reasonable state of repair and the conditions which will exist upon completion of the improvement.” The report concluded: “It is our opinion that the proposed improvement will replace a portion of the existing drainage system and that the costs of the improvement should be prorated between repair and improvement.”

The drainage authority determined that the petition satisfied the legal requirements of Minn.Stat. § 103E.341, subd. 2 (1998), requiring the benefits to exceed the costs as a condition of approving the project: “[t]he drainage authority shall establish, by order, a proposed drainage project if it determines that * * * the damages and benefits have been properly determined * * * [and] the estimated benefits are greater than the total estimated cost, including damages[J” Minn.Stat. § 103E.341, subd. 2. It must dismiss the petition if it determines that “the benefits of the proposed drainage project are less than the total cost, including damages awarded[.]” Minn.Stat. § 103E.341, subd. 1 (1998).

The drainage authority first applied section 103E.215, subd. 6, and determined that the estimated repair cost portion of the improvement should be assessed against all property owners benefited by the entire drainage system and the cost of improving the ditch beyond the repairs should be assessed only against the property benefited by the improvement.

The drainage authority then determined that the estimated cost of repair of $290,279.01 was less than the redetermination benefits, $458,548.03, and the total cost of the improvement project of $593,565.43 was less than the sum of the redetermination benefits plus the benefit of improving the ditch by removing the tile and opening the ditch, estimated to total $967,314.75. The petition therefore met the statutory requirement that the benefits exceed the costs for the project.

Appellants, landowners who stand to be assessed for the cost of the improvement, appealed the drainage authority’s order to the district court. The court affirmed the order on November 16, 1998, noting that the drainage authority adequately described a separable portion of the existing drainage system for improvements provided by section 103E.215, subd. 6. The court also affirmed the drainage authority’s determination that the correct method for determining the cost of an improvement project is to subtract the repair portion-of the improvement cost from the total cost of the project. Since the remaining amount of $303,286.42 was lower than the improvement benefits of $508,766.72, the court affirmed the determination that the estimated benefits exceed the estimated costs “both as to the Redetermination of Benefits and as to the Improvement Project.”

On review by the court of appeals, the court held that the improvement concerned a separable part of the system-the main line-and did not pertain to the ditch laterals, therefore Minn.Stat. § 103E.215, subd. 6, was applicable relating to the allocation of assessments. See In re Murray County Ditch No. 34, 1999 WL 486865 at *3 (Minn.App. July 13, 1999). The court also held that because Minn.Stat. § 103E.215, subd. 6, establishes a “dual assessment of costs,” id. at *2, the statute permits the separate assessment of repair and improvement costs, “each carrying [ ] separate costs and separate benefits,” and concluded that the drainage authority adequately described a separable part of the drainage system and properly assessed the costs of the project. Id. at *3.

The court rejected appellants’ claim that the benefits of the project do not exceed the cost of $508,766, concluding that the drainage project “serves both to restore the system to a functioning state, producing a benefit of $458,584, and to enhance the value of the system beyond its repaired value, producing an additional benefit of $508,766.” Id. at *4. The court added the redetermination benefit of $458,584 to the improvement benefit of $508,766 for a total benefit of $967,350 and affirmed the drainage authority and district court’s calculations: “$290,279 was assessed against the benefits of $458,584, and $303,286, the additional cost to achieve the enhanced value of the system, was assessed against benefits of $508,766.” Id. at *1.

On further review by this court, appellants assert that the court of appeals incorrectly held that the benefits exceeded the costs of the improvement and that the main tile line is a separable portion of the ditch. We disagree and affirm.

Minnesota’s laws pertaining to drainage ditches are a complex matrix adopted with the intent of reclaiming agricultural land by disposing of excess water that renders the land untillable, see Town of Vivian v. Town of Dunbar, 162 Minn. 491, 492, 203 N.W. 431, 432 (1925), and fairly allocating the costs among benefited landowners. We have held that the drainage laws “must be liberally construed, so as to promote the public health and the drainage and reclamation of wet or overflowed land.” Lippmann v. Huhn, 249 Minn. 1, 16, 81 N.W.2d 100, 109 (1957).

The drainage authority must dismiss a petition for improvement if it determines that “the benefits of the proposed drainage project are less than the total cost, including damages awarded,” Minn.Stat. § 103E.341, subd. 1, and it must order the project when “the estimated benefits are greater than the total estimated cost, including damages.” Minn.Stat. § 103E.341, subd. 1; see also Hagen v. County of Martin, 253 Minn. 367, 370, 91 N.W.2d 657, 660 (1958) (“no order shall be made establishing a drainage system unless the benefits to be derived from such a system are greater than the total estimated cost including damages”).

The parties here do not challenge the drainage authority’s estimates of the costs and benefits of the project. Rather, they disagree with the drainage authority’s reliance on section 103E.215, subd. 6, in arriving at its conclusion that the project’s benefits exceed its costs under the cost-benefit analysis required by section 103E.341. The question before us, then, is one of statutory interpretation: does Minn.Stat. § 103E.215, subd. 6, allow a drainage authority to subtract repair costs from rede-termination benefits and improvement costs from improvement benefits in conducting a cost-benefit analysis under Minn. Stat. § 103E.341?

The construction of a statute is a question of law we review de novo. See Hibbing Educ. Ass’n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn.1985). “The object of all interpretation and construction of laws is to ascertain and effectuate the intention of the legislature.” Minn.Stat. § 645.16 (1998). In construing a statute, we look to its text as a whole and give effect to all of its provisions. See Kachman v. Blosberg, 251 Minn. 224, 229, 87 N.W.2d 687, 692 (1958). With respect to drainage proceedings, “the provisions ⅜ * * are part of a complete statutory scheme designed to govern the establishment of a drainage system and since they relate to the same subject matter, they are in pari materia and should be construed together.” Hagen, 253 Minn, at 371, 91 N.W.2d at 660.

Minnesota Statutes § 103E.215, subd. 6, governs the assessment of costs and benefits where a separable part of a drainage system needs improvement. Subdivision 6 provides:

(a) If the existing drainage system needs repair and the petition for the improvement is for a separable part only of the existing drainage system, the engineer may include in the detailed survey report a statement showing the proportionate estimated cost of the proposed improvement required to repair the separable part of the existing system and the estimated proportionate cost of the added work required for the improvement * * *.
(b) At the hearing, if the drainage authority determines that, only a separable portion of the existing drainage system will be improved and that the portion needs repair, the drainage authority shall determine and assess, by order, the proportionate cost of the improvement that would be required to repair the separable portion of the drainage system to be improved. The order must direct that:
(1) the repair portion is allocated as repairs and assessed against all property benefited by the entire drainage system, as provided by section 103E.731; and
(2) the balance of the cost of the improvement is assessed in addition to the repair assessment against the property benefited by the improvement.

Minn.Stat. § 103E.215, subd. 6.

Appellants argue that section 103E.215, subd. 6, allocating the cost of repairs to all landowners and the cost of improvements beyond the repairs only to those owners whose land is benefited by the improvement, plays no role in the cost-benefit analysis required by section 103E.341. They assert instead that the proper method of conducting a cost-benefit analysis is to compare the total improvement costs, including repairs, to the improvement benefits, and if the costs exceed the benefit of the improvement, the petition must be denied. Appellants also argue that the drainage authority should not have considered redetermination benefits in its analysis because they are irrelevant in an improvement proceeding.

Respondents refer to section 103E.215, subd. 6, and argue that the drainage authority followed the statute by explicitly requiring that a proportion of the entire cost of the improvement project must be assessed as the repair cost and a portion must be assessed as a cost relating to the betterment of the ditch over and above the original project. They further point to the fact that the existing drainage system is not in a reasonable state of repair and by statute must be repaired, but because the construction of the improvement eliminates the repair cost of $290,279 it represents a savings that can legitimately be taken into account in determining the project cost.

For several reasons we hold that respondents’ reading of the statute is correct in light of the statutory language and against the backdrop of the intent of the drainage laws to “promote the public health and the drainage and reclamation of wet or overflowed land.” Lippmann, 249 Minn, at 16, 81 N.W.2d at 109.

We agree with respondents that the proper method of determining the costs and benefits of an improvement under section 103E.215, subd. 6, is to subtract the repair costs from the redetermi-nation benefits and the improvement costs from the improvement benefits. The language of section 103E.215, subd. 6, provides that repair costs and improvement costs are determined separately under the statute. Appellants’ interpretation of section 103E.215, subd. 6, acknowledges the application of the dual assessment for cost allocation purposes but rejects it in the cost-benefit analysis. Appellants thus urge us to disregard both the repair costs and the redetermination benefits in the cost-benefit analysis, ignoring that almost half of the “improvement cost” is a repair cost yielding a $458,584 redetermination benefit over and above the “improvement benefits.” Appellant’s approach is inconsistent with the statutory distinction between repair costs, incurred in bringing the system back to an earlier standard of performance, and improvement costs, incurred in bringing the system to a higher level of capacity than originally constructed. Moreover, it would be at least incongruous, and perhaps absurd, to read section 103E.215, subd. 6, as mandating the drainage authority to both require and ignore cost-benefit estimates. Finally, where an improvement project both repairs and improves a ditch, as here, under appellant’s reasoning the repair and improvement must be petitioned and considered in separate proceedings even though in reality they lead to a single result-whether to go forward with the improvement project or to reject it.

In a sense, the repair aspect of the project is a concept only, but it serves the useful purpose of determining what part of the total project cost should be assessed against all property owners benefited by the entire ditch. The need for making such a determination is clear-the ditch as a whole is improved by the improvement project just as if the repair had been made, and the fact that a repair is not actually made that would return the ditch to its originally constructed capacity should not affect the applicability of section 103E.215, subd. 6, nor does it contradict the statutory language: “the repair portion is allocated as repairs and assessed against all property benefited by the entire drainage system.” Minn.Stat. § 103E.215, subd. 6(b)(1) (emphasis added). Even though the repair portion of the project may never be undertaken, as here, its concept is useful in creating equity in the assessment of costs-the repair costs against every landowner benefited by the ditch, and the cost of the improvement, or upgrading, against only those benefited by the improvement.

The drainage authority here found that the drainage project alleviated the need for a repair and also met an improvement objective. To go a step further and require an actual repair to trigger the statute would of course be absurd. We do not believe the legislature intended such a result. The purpose of the statute appears to address exactly the situation here where a ditch in need of repair is instead improved.

The dissent finds troubling the role re-determination benefits'play in our analysis. We agree with the dissent that redetermi-nation benefits “reflect the value of the entire drainage system” were it restored to its original condition. Where we differ is our conclusion that linking redetermination benefits with repair costs is logical since redetermination benefits, by definition, flow from the repair of the ditch, whether the repair is fictional or real. Improvement benefits are obviously linked to improvement costs; redetermination benefits-the benefits gained from repairing the ditch to its original condition-must then be the benefits flowing from a repair, and are part of a valid cost-benefit analysis under section 103E.341.

Practically, our approach also reflects the determination of the engineer and viewers. The engineers concluded that with the expenditure of $290,279.01 the ditch could be raised to the condition it was in when constructed in 1916, producing the redetermined benefit of $458,584.03, and further that by spending a total of $593,565.43 on the project, additional benefits of $508,766.72- would be achieved. With combined benefits totaling nearly a million dollars and combined repair and improvement costs totaling $593,565, all arithmetical roads lead to the same conclusion: the costs of the drainage project do not exceed its benefits.

Appellants also contend that the main tile line is not a separable part of the drainage system and since the improvement covers the entire system section 103E.215, subd. 6, is not applicable. They base their claim on the fact that the improvement project would replace nearly the entire length of the main tile line with 9pen ditch. Appellants refer to section Í03E.215, subd. 6, stating that “[t]he notice of hearing on the detailed survey report must be given by publication and mailing to all persons owning property affected by the existing drainage system. The hearing may be held at the same time and location as the establishment hearing for the improvement.” Minn.Stat. § 103E.215, subd. 6(a). Appellants assert that because one hearing refers to the “existing drainage system” and the other hearing refers to the improvement, the use of “separable” in the statute must refer to a separable geographic area of the system.

We have held that where the legislature’s intent “is clearly manifested by plain and unambiguous language, no statutory construction is necessary or permitted.” Ed Herman & Sons v. Russell, 535 N.W.2d 803, 806 (Minn.1995). Section 103E.215, subd. 6, is not ambiguous-nothing in its language suggests that the legislature intended “separable” to mean “geographically separable,” and the dictionary defines “separable” as “capable of being separated or disassociated” and makes no reference to geographic discreteness. Webster’s Ninth New Collegiate Dictionary 1073 (1991).

Whether the improvement is to a separable portion of the ditch is a question of fact and we hold findings of fact as clearly erroneous only where we are “left with a definite and firm conviction that a mistake has been committed.” Northern States Power v. Lyon Food Prods. Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (Minn.1975). We have no such conviction here. Both the engineer and the drainage authority found the improvement to be to a separable portion of the ditch, the trial court reached the same conclusion and was affirmed on court of appeals review. The engineer’s report and drainage authority’s findings are amply supported by the record: the improvement involved the main sewer trunk, excluding several miles of laterals, and also did not include 600 feet of the current open ditch at the outlet. Appellants’ argument that “separable” means a discrete and independent ditch system is not supported by logic or practical application and makes little sense in light of the carefully crafted language of section 103E.215, subd. 6, relating to splitting the assessment of the repair and improvement costs as to a single ditch system.

We affirm the court of appeals and hold that the drainage authority correctly applied MinmStat. § 103E.215, subd. 6, because the improvement pertained to a separable portion of the ditch. We also hold that the drainage authority and the trial court did not err in applying Minn.Stat. § 103E.215, subd. 6, to require that repair costs be subtracted from redetermination benefits and improvement costs subtracted from improvement benefits.

Affirmed.

PAGE, Justice

(dissenting).

I respectfully dissent. This case arises as a result of a petition for improvement of Murray County Ditch No. 34 filed by owners of property that would be affected by the proposed drainage system improvements. No petition seeking repair of the drainage system has been filed, therefore, there are ho issues relating to the repair of the system before' us. The project at issue is a project for the improvement of the entire main tile line of Murray County Ditch No. 34. In resolving the issues presented, the court improperly concludes that the project involves a separable portion of the drainage system. The court then compounds that errof by subtracting, absent statutory authority to do so and in defiance of common sense, avoided repair costs from the improvement costs in the cost-benefit analysis and by including re-determination benefits as part of the improvement benefit even though redetermi-nation benefits reflect the value of the entire drainage system and not simply the value of the repairs to the system. The net effect of these last two errors is that for all future drainage system improvement projects costs will always be understated and benefits will always be overstated. In addition, these errors will lead to absurd results.

The record before us does not support the conclusion that this improvement project is separable from the remainder of the drainage system. To overcome this problem, the court simply notes that the engineer’s report, the county board, and the trial court found the improvement to be a separable portion of the drainage system. The evidence, however, on this point was sparse and consists only of the engineer’s report and testimony. We have always required an adequate factual basis for any expert testimony. See Dunshee v. Douglas, 255 N.W.2d 42, 48 (Minn.1977); Bohach v. Thompson, 307 Minn. 332, 336, 239 N.W.2d 764, 767 (1976). There is no adequate factual basis here. The engineer’s report simply states, “[T]he Petition for Improvement is for a separable part of the existing drainage system, consisting of the main branch.” The engineer’s testimony is no more helpful. At the hearings, the engineer was asked a single question regarding separability. The question arose in the context of discussing the engineer’s estimate of repair costs. Counsel for the ditch petitioners asked the leading question, “And that is a separable part of the system; that is, the part that will be improved?” Answer, “Yes, that is the separable part.” The question was asked without establishing a foundation for the engineer’s opinion, or even explaining what the engineer understood separable to mean. An opinion that the project was separable, in the complete absence of foundation, is not helpful to the trier of fact. See Minn. R. Evid. 702.

In contrast, when the engineer described the nature of the project outside of the context of discussing repair costs, a much different impression is left. The engineer’s report describes the project as one “to replace the drain tile in its entirety.” The engineer confirmed that if the proposed improvement was approved, the main line would be changed from buried tile to an open ditch constructed continuously from one end to the point 600 feet from the terminus where an open ditch now exists. The engineer testified that opening the ditch would provide everybody along the ditch with an adequate outlet and admitted that the system would not function without the main line, as it provides the outlet for the entire drainage system.

Thus, the engineer’s opinion and trial court’s finding that the improvement project was separable are not reasonably supported by the evidence as a whole. Cf. Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). Given the obvious importance of the main line to the entire drainage system, and given the extensive nature of the improvements to the main line contemplated, it is clearly erroneous to consider this project as separable from the rest of the drainage system. I am “left with a definite and firm conviction that a mistake has been committed.” Id.

That mistake leads the court to its next misstep, the conclusion that avoided costs of repair should be deducted from the costs of an improvement. The legislature provided that a ditch improvement should not go forward unless the drainage authority finds that the benefits are greater than the “total estimated cost, including damages.” Minn.Stat. § 103E.341, subd. 2(a)(4). The term “cost” is not defined in statute, so we adopt the common usage of the term. See Minn.Stat. § 645.08 (1998). Cost means “the amount or equivalent paid or charged for something: price.” Webster’s Seventh New Collegiate Dictionary 189 (1971). Landowners assessed for this project will not be able to deduct from the amount paid for the improvement the amount they would have paid for a repair. Accordingly, it contravenes the simple, common sense definition of cost to deduct avoided repair costs when determining the total cost of the improvement.

Deducting avoided repair costs also perverts the cost-benefit analysis and leads to absurd results. Imagine a repair cost of $100,000 that closely approximates the improvement cost of $110,000. Under the court’s analysis, the resulting improvement cost is only $10,000. Imagine further that viewers determined that the benefits of the project will add $25,000 in value to the drainage system. Under the court’s analysis, $25,000 in benefits offset an outlay of $110,000.

Moreover, even if we assume that this project is separable, the statute the court relies on provides no authority for considering avoided repair costs in the cost-benefit analysis. Minn.Stat. § 103E.215, subd. 6(a) states that the engineer “may include in the detailed survey report a statement showing the proportionate estimated cost of the proposed improvement required to repair the separable part of the existing system and the estimated proportionate cost of the added work required for the improvement.’’ Minn.Stat. §' 103E.215, subd. 6(a) (emphasis added). The statute says nothing about the estimated cost of repairs being factored into the cost-benefit analysis used to determine whether the improvement of the separable portion is to be approved. See Minn.Stat. § 103E.341. Surely if the legislature intended to have avoided repair costs deducted from the estimated improvement costs, it would have required the engineer to determine repair costs and not made their inclusion in the report permissive. The legislature also would have explicitly required the drainage authority to use that figure in the cost-benefit assessment on the petition. The court reads into section 103E.215, subd. 6(a) a purpose that is nowhere evident from its plain text. The question left open then is what is the purpose served by permitting the'engineer to show estimated costs of repair in the engineer’s report. The answer to that question is found in Minn.Stat. § 103E.215, subd. 6(b)(1) and (2), which set out how costs are to be assessed against benefited property.

Respondents filed a petition for improvement, not repair. They nonetheless argue that because a repair is mandatory its costs are “saved” in an improvement. They are not in fact saved however, they are simply replaced by different costs, the costs of the improvement. Further, repair is not automatic. See Minn.Stat. § 103E.715, subd. 4 (1998) (requiring repair on petition to be made when drainage authority determines repairs are necessary and in best interests or that cost of repair will not exceed the total benefits). Just as one cannot deduct the cost of fixing a flat tire from the price of an entirely new tire, one cannot consider avoided repair costs as savings on an entirely separate and distinct improvement project. Doing so significantly underestimates the cost of the improvement.

Common sense does not allow, and the legislature has not authorized, exclusion of avoided repair costs from the assessment of costs of a ditch improvement. Therefore, the proper total cost of this project for cost-benefit comparison is the engineer’s estimate of $593,565.43.

The court states that not considering avoided repair costs disregards the repair costs and the redetermination benefits in the cost-benefit analysis, “ignoring that almost half of the ‘improvement cost’ is a repair cost yielding a $458,584 redetermi-nation benefit over and above the ‘improvement benefits.’ ” This statement demonstrates the second fundamental flaw in the court’s cost-benefit analysis, the purported comparison of redetermination benefits with the costs of repair. Of course, as noted above, there is no petition to repair the ditch before the court. Therefore, there is no reason to compare costs and benefits of a repair. But even if this case were before us on a petition for repair instead of a petition for an improvement, the court’s use of repair costs and redetermination benefits is incorrect.

The court misconstrues what redetermi-nation benefits represent. Redetermination benefits reflect the value of the entire drainage system, not simply the value of a repair. The drainage system’s benefits must be redetermined from time to time to reflect current land values and physical changes in the affected land, so that landowners may be properly assessed. See Minn.Stat. § 103E.351; Minnesota Public Drainage Manual 2.58-.59 (Minnesota Department of Natural Resources, 1991) (noting four reasons why redetermination might be necessary or beneficial, one of which is a repair project). On redetermi-nation, “[vjiewers need to determine benefits as if no drainage system existed.” Public Drainage Manual 4.8 (emphasis added). Therefore, the redetermination amount is not, as the court suggests, the difference between the current value of the ditch and its value as repaired; the rede-termination amount reflects the entire value of the ditch in a reasonable state of repair. Accordingly, it is inappropriate to compare the costs of a repair to redeter-mination benefits, as the court has done.

Finally, it is not appropriate to add the entire redetermination benefit ($458,584.03) to the improvement benefit ($508,766.72) when considering the benefit of this project. While in need of repair, the ditch had value in the state it was in when this petition was filed. That pre-repair value is encompassed within the $458,584.03 of redetermination benefits, and therefore a repair will not produce $458,584.03 in added value. Further, including redetermination benefits as a benefit of the improvement dramatically overstates the added value to be derived from the project.

By erroneously comparing: a) the benefits from improvement plus the benefits of the entire drainage system to b) the cost of improvement alone, the court materially alters the proper cost-benefit analysis.

Including the entire redetermination benefit in the benefits of an improvement project has significant implications for agricultural land in Minnesota. The overestimate of benefits, especially when coupled with an underestimate of costs that results from deducting avoided repair costs, means that in the future no ditch improvement project will likely be denied. The court thereby thwarts the careful review and deliberativé process envisioned by the legislature for the establishment and improvement of drainage systems.

In sum, because the improvement project was not separable, the board and the lower courts were not authorized to even consider Minn.Stat. § 103E.215, subd. 6. Even if the project were separable, subdivision 6 does not allow a drainage authority to deduct avoided repair costs in performing the cost-benefit analysis required for approval of a drainage system improvement project. Deducting avoided repair costs leads to absurd results that the legislature could not have intended. Nor did the legislature intend for the drainage system’s redetermination benefits plus the project’s improvement benefits to be compared with the improvement cost. Because the damages and benefits were not properly determined, the drainage authority was not authorized to approve the improvement project. See MinmStat. § 103E.341, subd. 2(3).

I would reverse.

BLATZ, C.J.

I join in the dissent of Justice Page.

PAUL H. ANDERSON, J.

I join in the dissent of Justice Page.

      . "[T]he drainage authority or joint county drainage authority [has] jurisdiction over a drainage system or project.” Minn.Stat. § 103E.005, subd. 9 (1998).

      . The drainage authority originally evaluated the petition and issued an order on June 28, 1996, establishing the proposed improvement. Appellants appealed the order to the Murray County District Court and the order was remanded for further proceedings to cure procedural defects. Upon remand, Sioux Engineering, Inc. and the viewers were reappointed to determine the estimates on the costs and benefits of the proposed improvement.

      .Minnesota Statutes § 103E.215, subd. 4 (1998), states, inter alia, that a petition for the improvement of a drainage system must be signed by either at least 26% of the owners of property affected by the proposed improvement, or the owners of at least 26% of the property affected by the proposed improvement. See Minn.Stat. § 103E.215, subd. 4.

      . "Costs” include the cost of construction but also the cost of activities such as hauling dirt, removing trees, damage to growing crops and surveyor's costs. See, e.g., Minnesota Continuing Legal Education, Drainage Law in Minnesota, 32-33 (1985).

      . The drainage code defines “repair” as "re-storting] all or part of a drainage system as nearly as practicable to the same condition as originally constructed and subsequently improved * * ⅜.” Minn.Stat. § 103E.701, subd. 1 (1998).

      . The drainage code states that benefits may be based on an increase in the current market value of the property as a result of the construction project, an increase in the potential for agricultural production as a result of the construction project, or an increased value of the property as a result of a potential different land use. See Minn.Stat. § 103E.315, subd. 5 (1998).

      . “Generally, the types of damages resulting from establishment of a public ditch are the cost of building the ditch and the damage to any lands through which it passes.” Minnesota Continuing Legal Education, Drainage Law in Minnesota, 30 (1985).

      . Generally, all owners of land through which the ditch passes share in the cost of repairing the ditch, even though some of them may receive no direct benefit from the repair. See Minn.Stat. § 103E.735, subd. 1 (1998). Unlike the cost of repairs, the cost of an improvement is not borne by the entire ditch . system but only by the owners of those lands that benefited by the improvement. See Minn.Stat. § 103E.215, subd. 6(b)(2).

      . We have held that disputes concerning whether land is actually benefited are questions of fact. See Oelke v. County of Faribault, 260 Minn. 361, 366, 110 N.W.2d 145, 148 (1961) (“[w]hether land involved in a drainage proceeding has been benefited is a question of fact”).

      . The drainage authority is required to repair the system. See Minn.Stat. § 103E.705, subd. 1 (1998). (“the drainage authority shall maintain the drainage system * * * and provide the repairs necessary to make the drainage system efficient”).

      . The dissent argues that Minn.Stat. § 103E.215, subd. 6, does not require estimated repair costs to be factored into the cost-benefit analysis under section 103E.341 because neither statute explicitly states that the separation of repair and improvement costs apply under Minn.Stat. § 103E.341. While section 103E.215, subd. 6, does not explicitly indicate either way, harmonizing this section with the language in section 103E.341 requires a balancing of costs and benefits and leads us to conclude that the sections must be read together to avoid the absurdity of requiring different cost-benefit formulations for statutes within the same chapter. See, e.g., Van Asperen v. Darling Olds, Inc., 254 Minn. 62, 73-74, 93 N.W.2d 690, 698 (1958) ("a statute is to be read and construed as a whole so as to harmonize and give effect to all its parts”); Kachman, 251 Minn, at 230, 87 N.W.2d at 692 ("a particular provision of a statute cannot be read out of context but must be taken together with other related provisions to determine its meaning”). We also note that the dissent’s comment in footnote one that Minn.Stat. § 103E.215, subd. 6, provides that repair costs may be included in the detailed survey report only for assessment purposes does not follow from the language of the statute, as the statute includes no such limitation.

      . The dissent disagrees that the avoidance of repair costs can be included as savings. We respond to the dissent's "flat tire” analogy by offering another analogy: when one purchases clothing that needs repair-for example pants with a broken zipper-the cost of the repair is reflected in the sale or reduced price of the pants; similarly the repair costs are properly subtracted from the improvement costs of the ditch improvement.
      We also observe that the dissent's scenario where an improvement costing $110,000 would be approved where the repair cost is $100,000 and the benefit $25,000 seems to us unlikely, since under our reading of the statute the "benefit” would include both redeter-mination benefits and improvement benefits.

      . In response to the dissent's comment in footnote three that neither party argued that repair costs could be subtracted from redeter-mination benefits, we point to the drainage authority’s final hearing findings and order on June 2, 1998, where it included as one finding ”[t]hat the Viewers have found net benefits as to the Redetermination of Benefits in this matter in the amount of $458,584.03. The costs associated with the repair are in the amount of $290,279.01.” The district court similarly concluded that redetermination benefits are linked to repair costs, referring to the drainage authority’s finding that the benefits exceeded the costs "both as to the redetermi-nation of benefits and as to the improvement project.” Were repair costs and redetermination benefits irrelevant to the improvement petition, as the dissent suggests, it appears unlikely that both the drainage authority and the district court would have referred to them in their findings.

      . The engineer’s report states explicitly that the improvement is "required to repair a separable part of the existing system" and at'the improvement hearing the engineer testified, "my opinion is that it's (the proposed improvement) separable.”

      . We thus disagree with the dissent’s statement that "no adequate factual basis” exists for the conclusion reached by three factfin-ders-the engineer, the drainage authority and the district court, as well as the court of appeals-when in both the engineer's report and his testimony he explicitly referred to the portion of the ditch petitioned for improvement as separable. Moreover, whether a part is separable from the whole is not solely determined by any one factor, for example and quoting the dissent, an engine is of "obvious importance” to an automobile, which “would not function without” it. However, the engine is also separable from the automobile, physically and functionally, as a repair of the engine is not a repair of the brakes, or the steering.

      . The only use of the avoided repair cost described in section 103E.215, subd. 6 is in the assessment. Improvement costs for a separable improvement are assessed against only those landowners who benefit from the improvement; and repair costs are assessed against all landowners affected by the ditch. See Minn.Stat. §103E.215, subd. 6(b). Where the existing drainage system needs repair and the petition is for improvement of a separable part of the system, establishing what the cost of repair would be is necessary to properly assess the landowners affected if the improvement project is completed. See id. Repair costs may be included in the detailed survey report only for this purpose.

      . The court’s zipper analogy fails. What the court's holding suggests is that the savings on the pants with the broken zipper can be used in the purchase of an entirely different pair of pants. With apologies to Wallace and Grom-it, the majority has "The Wrong Trousers.”

      . Although the court asserts that "linking redetermination benefits with repair costs is logical since redetermination benefits, by definition, flow from the repair of the ditch, whether the repair is fictional or real," there is no statutory definition of redetermination benefits and no authority linking redetermination to a repair.

      . The court quotes prefatory language in the viewer’s redetermination report indicating the report is "based upon a comparison of the conditions which will exist with the drainage system repairs to the depth, grades and tile sizes as shown on the original plans with the conditions which would have existed before the construction began.” The court apparently infers that "the construction” referenced is the hypothetical repair construction, but other references in the viewer's report make clear that the term refers to the construction of the entire drainage system. The report assigned benefit values for different types of land based upon an increase in the potential for agricultural production "as a result of constructing the drainage system." (Emphasis added.) The beginning land use, property value and economic productivity were considered "before the drainage system construction.” (Emphasis added.)

      .Indeed, the court states the issue before the court as, "Does Minn.Stat. § 103E.215, subd. 6 allow a drainage authority to subtract repair costs from redetermination benefits and improvement costs from improvement benefits in a cost-benefit analysis under Minn. Slat. § 103E.341?” This statement is perplexing, as even respondents do not attempt to use the $458,584.03 of redetermined benefits to support either the cost of the (avoided) repair or the cost of the improvement. The district court made no finding regarding rede-termination benefits, simply noting that the drainage authority “determined that the estimated benefits are greater than the total estimated costs, including damages, both as to the redetermination of benefits and as to the improvement project.” The reason for the drainage authority to evaluate the redetermi-nation benefits is provided by statute. Minn. Stat. § 103E.351, subd. 2 requires the drainage authority to confirm the benefits and damages arrived at through redetermination. The approval of redetermination benefits and damages exists wholly independently of the ditch improvement approval process, however. See id. The drainage authority finding therefore relates only to establishing redeter-mination benefits of $458,584.03, which no one here challenges.


source: Caselaw Access Project

author: PAUL H. ANDERSON, Justice.

license: Public Domain

text:
    Violet TOUSIGNANT, petitioner, Appellant, v. ST. LOUIS COUNTY, MINNESOTA, et al., Respondents.
    No. C8-99-826.
    Supreme Court of Minnesota.
    July 27, 2000.

      ■David L. Weidt, Duluth, for appellant.-
    Alan L. Mitchell, St. Louis County Atty., Amy H. Kuronen, Asst. County Atty., Duluth, for respondents.
    Wilbur W. Fluegel, Minneapolis, for amicus curiae Minn. Trial Lawyers Assn.
   OPINION

PAUL H. ANDERSON, Justice.

Appellant Violet Tousignant brought an action against respondents Chris Jensen Nursing Home and its owner St. Louis County, alleging negligence by the Jensen Home’s nursing staff. The St. Louis County District Court dismissed Tousig-nant’s action for her failure to submit an affidavit of expert disclosure in compliance with Minn.Stat. § 145.682 (1998). The Minnesota Court of Appeals affirmed the dismissal.' We reverse and remand to the district court.

The facts giving rise to this • appeal are undisputed. Appellant Violet Tousignant was admitted to Chris Jensen Nursing Home (Jensen Home) at 11:30 a.m. on February 6, 1995. The Jensen Home is owned and operated by St. Louis County and the two are hereinafter referred to as respondents. Tousignant was 86 years old and recovering from surgery for a fractured right hip and wrist when she was admitted to the Jensen Home.

The interagency referral form that accompanied Tousignant from the hospital as her admission orders to the Jensen Home authorized the use of a vest “prn” (as needed) due to her confusion and risk of re-injury. The referral form’s “Patient Care Plan” stated that Tousignant was “alert, but pleasantly confused” and that she was to have a “vest restraint on at all times.” While a registered nurse signed this referral form, Tousignant submitted evidence showing that the referral form was considered by the Jensen Home staff as admission orders from the physician. Tousignant also submitted evidence that the Jensen Home staff was aware that Tousignant would likely attempt to walk unassisted if left unrestrained and unattended. Tousignant’s family members also stated that they informed the Jensen Home staff “at least five to six times” that Tousignant needed to be restrained because of her confusion, even if she appeared “ok.”

Tousignant was left unattended in her room after admission, unrestrained, and in a wheelchair. Approximately three hours after her admission, Tousignant was found on the floor of her room. She had fallen and sustained another fracture to her right hip.

Tousignant brought' a medical malpractice action in St. Louis County District Court naming respondents as defendants. Respondents initially moved for summary judgment based on official immunity, the denial of which they appealed. See Tousignant v. St Louis County, No. C0-98-907, 1998 WL 846581 *1 (Minn.App.1998). The court of appeals affirmed the district court’s denial of summary judgment for respondents. See id.

On remand, respondents moved to dismiss, arguing that Tousignant had failed to meet the expert disclosure requirements of Minn.Stat. § 145.682. Tous-ignant responded with a motion for the district court to determine whether expert testimony was required to establish a pri-ma facie case of negligence. Respondents argued that dismissal was mandated by the fact that Tousignant had not filed the expert affidavit required by Minn.Stat. § 145.682, subd. 4, and that Tousignant’s claim required expert testimony. Tousig-nant responded that because the issues in her case were neither complicated nor beyond the understanding of lay persons, expert testimony was not required to establish a prima facie case of medical malpractice.

The district court ruled that because medical judgment was required by the Jensen Home staff concerning the treatment and care of Tousignant, expert testimony was required to establish a prima facie case. The court also concluded that the statute had required interpretation by the court on this issue and that there had been a lengthy delay due to the earlier appeal. Accordingly, the court found that Tousignant’s delay in filing the required expert affidavit was excusable and granted Tousignant a 30-day extension to file the requisite expert affidavit.

On February 10, 1999, Tousignant provided respondents with an affidavit that purported to be the expert disclosures required by Minn.Stat. § 145.682. Tousig-nant’s affidavit-was not signed by any of her identified experts and it contained only brief conclusory summaries of the proposed expert testimony. Respondents renewed their motion to dismiss and the district court granted the motion, dismissing Tousignant’s action with prejudice. When it dismissed Tousignant’s action, the district court found that her affidavit did not comply in form or substance with the requirements of Minn.Stat. § 145.682 “although she has had substantial and sufficient opportunity to do so * * Specifically, the court found the affidavit insufficient because it was not signed by -the experts and because the affidavit did not set forth the standard of care and a factual delineation of how the Jensen Home failed to comport to that standard. The court also found that Tousignant failed to provide the required expert discovery responses under Minn. R. Civ. P. 26.02(d)(1) which would have satisfied the requirements of section 145.682, subd. 4, if they were signed by the experts. See id. The court stated that it was “left with the firm conviction [that Tousignant] simply has failed to carry the obligations imposed upon her by the statute as interpreted by case law.” The court then concluded that dismissal with prejudice was “mandated by the statute.”

Tousignant appealed, arguing that the district court erred in dismissing her claim or in the alternative by not granting her a further extension so that she could bring her affidavit into compliance with the statute. The court of appeals affirmed the district court, holding that the affidavit was clearly deficient on the grounds the district court articulated. See Tousignant v. St. Louis County, 602 N.W.2d 882 (Minn.App.1999). In its decision, the court of appeals rejected Tousignant’s argument that the district court should have considered the affidavit in connection with the Vulnerable Adults Act report, prepared by an identified expert witness and submitted to the court on summary judgment. See id. at 886. To support its conclusion, the court of appeals cited Lindberg v. Health Partners, Inc., 599 N.W.2d 572, 578 (Minn.1999), and its prohibition on the use of nonaffidavit materials to supplement the required affidavit. See Tousignant, 602 N.W.2d at 886.

Finally, the court of appeals rejected Tousignant’s claim that the district court erred in not granting a second extension, noting that no further extension was requested in the district court and that there was no discernable “reasonable excuse” on which'to base such an extension. See id. at 886-87. The court of appeals observed that Tousignant had over two years to obtain a sufficient affidavit and had already been granted one extension by the district court. See id. at 887. Although the court referred to its decision as “unquestionably harsh,” observing that Tous-ignant’s claims were not frivolous and that her failures caused “no identifiable prejudice to Jensen and St. Louis County,” it nonetheless affirmed the district court’s dismissal with prejudice. See id.

Tousignant petitioned this court for review, arguing only that the court of appeals erred in holding that Minn.Stat. § 145.682 as interpreted by this court mandates dismissal and that such an interpretation of section 145.682 deprived her of a legitimate lawsuit. In her brief, however, Tousignant also argues that the district court erred in requiring an affidavit. In their brief, respondents object to this argument, asserting that it is beyond the scope of the petition for review and was not presented to the court of appeals.

Tousignant presents two questions on appeal: first, whether the district court erred in concluding that an expert affidavit was required to establish a prima facie case; and second, whether she substantially complied with the requirements ofMinn.Stat. § 145.682.

We have stated that we will not reverse a dismissal for failure to comply with the requirements of section 145.682 absent a showing that the district court abused its discretion. See Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn.1990). However, interpretation of the requirements of section 145.682 requires statutory interpretation, a question of law, which this court reviews de novo. See Stroud v. Hennepin County Med. Ctr., 556 N.W.2d 552, 555 (Minn.1996). As we observed in Sorenson, section 145.682, subd. 2, specifically limits its application to those medical malpractice actions “as to which expert testimony is necessary to establish a prima facie case.” 457 N.W.2d at 191. Thus, the threshold question in this matter is whether Tousignant’s claim required expert testimony to establish a prima facie case. Because there are no issues of fact to be resolved, we review this issue as a question of law. Our analysis therefore necessarily turns to case law that determines when such expert testimony is required to establish a prima facie case.

We have stated that expert testimony is generally required to establish the standard of care and the departure from that standard for the conduct of physicians. See id. “The purpose of expert testimony is to interpret the facts and connect the facts to conduct which constitutes [medical] malpractice and causation.” Id. at 192. This is based on the assumption that most medical malpractice cases involve complex issues of science or technology, requiring expert testimony to assist the jury in determining liability.

We have stated an exception to the expert affidavit requirement — that when “the acts or omissions complained of are within the general knowledge and experience of lay persons, expert testimony is not necessary to establish a standard of care, even in cases of alleged medical malpractice.” Atwater Creamery Co. v. Western Nat’l Mut. Ins. Co., 366 N.W.2d 271, 279 (Minn.1985); see also Miller v. Raaen, 273 Minn. 109, 114, 139 N.W.2d 877, 880 (1966) (stating that in medical malpractice cases, “recovery without expert testimony may be permitted”). Moreover, in the specific context of the applicability of section 145.682, we observed that:

There are, however, exceptional cases in which expert testimony is not necessary. In these rare cases, if plaintiff raises the issue, the trial court should make a finding that expert testimony is not necessary and, therefore, the statute is inapplicable.

Sorenson, 457 N.W.2d at 191.

Tousignant claims that her case is simply about the Jensen Home staffs failure to follow the physician’s order to restrain her. At the district court, she argued that her action did not require expert testimony to establish a prima facie case, but the court rejected her argument. The court found that the exercise of medical judgment by the Jensen Home staff was necessary to interpret the referral form, Tousignant’s condition, and the appropriate actions regarding Tousignant’s care. The court found that while there were issues that would be within the general knowledge of lay persons, the necessary “interface” of these issues with the’ medical issues and assessments in this case “required the [Jensen Home staff] to exercise medical training and judgment.” The court therefore concluded that expert testimony was necessary and appropriate. While the court did not make formal findings on this issue, it detailed the factual basis and reasoning for its decision in the memorandum attached to and incorporated into its order.

The record indicates that the Jensen Home staff may have exercised some degree of medical judgment regarding the weight and interpretation they were required to give to the referral form. Part of the record appears to support the district court’s findings on this point. However, it appears that the court did not address the crucial legal question of whether Tousignant adduced sufficient evidence supporting a prima facie case that was within the general knowledge and experience of a lay person. Even 1 if • the Jensen Home staff exercised some medical judgment, that does not necessarily mean that Tousignant did not establish a prima facie case. The court also needed to find that any such medical judgments were of a nature not within the general knowledge and experience of lay persons. The court did not make such a finding and further it appears that the court based its- decision, at least in part, on respondents’ rebuttal evidence.

To establish a prima facie case, Tousignant needed to make an initial showing of all of the elements of a medical malpractice' claim. We have stated that

a prima facie case simply means one that prevails in the absence of evidence invalidating it. Prima facie negligence means that evidence of negligence which, unexplained or uncontradicted and standing alone, appears to be sufficient to pstablish the fact. In other words, it is evidence which suffices to establish the fact unless rebutted, or until overcome, by other evidence.

Trudeau v. Sina Contracting Co., 241 Minn. 79, 87, 62 N.W.2d 492, 498 (1954) (citation omitted) (emphasis added); see also Black’s Law Dictionary 1209 (7th ed.1999) (defining “prima facie case”).

In actions against a health care provider, malpractice is established by showing

1) the standard of care recognized by the medical community as applicable to the particular defendant’s conduct;
2) that the defendant' departed from ■ that standard;
3) that the defendant’s departure from that standard was a direct cause of the patient’s injuries; and
4) damages.

Reinhardt v. Colton, 337 N.W.2d 88, 94 (Minn.1983) (quoting Plutshack v. University of Minn. Hosps., 316 N.W.2d 1, 5 (Minn.1982)). As noted earlier, while these facts must génerally be established by expert testimony, when within the common knowledge of a lay person, expert testimony is not necessary. See Atwater Creamery, 366 N.W.2d at 279.

Tousignant alleged that the Jensen Home staff received an “interagency referral form,” which instructed the staff that she should have a “[v]est restraint on at all times.” She also claimed that the Jensen Home staff treated these referral forms as transfer orders from physicians and that the authorization to use the vest restraint “prn” gave the staff permission to apply the restraint as directed: “at all times.” Tousignant’s family confirmed the need for restraints due to Tousignant’s continued confusion, explaining to the Jensen Home staff that such restraints were necessary “even if she appeared ok.” Tousignant does not claim that the Jensen Home staff failed to appropriately assess her condition and take appropriate action; rather, she claims that the standard of care for their acts was their compliance with the instructions on the referral form itself — that Tousignant was to wear, the vest restraint “at all times.” The evaluation of whether the Jensen Home staff complied with those instructions is not a question involving complex scientific or technological issues and is within the general knowledge and experience of lay persons. The breach of this standard of care is clear and undisputed. The Jensen Home staff failed to apply the vest restraint and left Tousignant unattended in a wheelchair. Three hours later she was found on the floor, having refractured her right hip.

There also is no dispute that the fall was the direct and proximate cause of Tousig-nant’s injury. That such a fall was the direct and proximate result of the Jensen Home staffs breach of the standard of care is also within the general knowledge and experience of a lay person. It is a matter of common knowledge and experience that an elderly person, confused and recovering from a fractured hip, who was likely to attempt to walk without assistance if left unattended, also likely would fall. That a fall by such a person would result in the injuries sustained by Tousig-nant is also reasonably foreseeable without any specialized knowledge. Finally, Tous-ignant’s injuries were sufficiently alleged in the complaint.

Unfortunately, the district court’s analysis never directly addresses the issues listed above. Rather, the court focused on whether the Jensen Home staff exercised medical judgment. That such medical judgment may have been necessary arises out of respondents’ counter-arguments of why the Jensen Home staff may not have been required to follow the instructions on the referral form. Whatever merit this argument may have, it related to the respondents’ rebuttal of Tousignant’s case, not whether Tousignant established a pri-ma facie case.

More specifically, the district court’s analysis suggests that rather than considering Tousignant’s case under a prima fa-cie analysis, the court considered her case in light of respondents’ rebuttal evidence. The court then appears to conclude that expert testimony would be necessary to resolve the evidentiary conflict over whether the Jensen Home staff exercised sound medical judgment. Such a finding is not clearly erroneous, but it is not appropriate at this stage of the proceeding. To establish a prima facie case, Tousignant does not need to show that she can prevail on these evidentiary issues at trial without expert testimony nor to have raised material issues of fact sufficient to withstand summary judgment. Rather, she must adduce facts which, if believed, establish the elements of a medical malpractice claim. If those facts are within the general knowledge and experience of lay persons, then expert testimony is not required and the requirements of section 145.682 are not implicated.

We conclude that there is a sufficient record to allow us to determine that Tous-ignant has established a prima facie case of medical malpractice without expert testimony. As noted above, Tousignant has adduced facts that are within the general knowledge and experience of lay persons. These same facts, if believed, would prove the elements necessary to establish medical malpractice. This conclusion does not mean that expert testimony may not at some point be necessary to refute evidence presented by respondents at trial; however, it was not necessary in this case to establish a prima facie case.

While we decide this matter on the first issue, concluding that Tousignant did not require expert testimony to establish a prima facie case and therefore section 145.682 is not applicable to her case, a brief comment on the second issue raised in Tousignant’s appeal is appropriate.

We agree with the conclusions of the lower courts that Tousignant’s affidavit was deficient. It was not signed by any of the identified experts nor did it contain anything more than brief concluso-ry statements concerning the proposed testimony. Tousignant’s argument that her affidavit should have been read in conjunction with the Vulnerable Adults Act report submitted on summary judgment is without merit. We have stated that nonaf-fidavit materials may not be used to supplement an otherwise deficient affidavit under section 145.682. See Lindberg, 599 N.W.2d at 578. It is clear from the record that had an affidavit been required to establish a prima facie case for Tousignant’s action, then the affidavit submitted was deficient and section 145.682 would have mandated dismissal. See generally Lindberg, 599 N.W.2d at 578.

Finally, as we stated in Sorenson, it is an exceptional medical malpractice case that does not require expert testimony to establish a prima facie case. 457 N.W.2d at 191. However, Tousignant’s claim presents such an exceptional case. The standard of care applicable to the Jensen Home staffs acts or omissions, the breach of that standard of care, and the chain of causation are all within the general knowledge and experience of lay persons. Accordingly, we hold that the district court erred in concluding that Tousignant required expert testimony to establish a prima facie case of medical malpractice. Therefore, Minn.Stat. § 145.682 does not apply and dismissal under its provisions is not warranted. We reverse the decision of the court of appeals and remand this matter to the district court for further proceedings consistent with this opinion.

Reversed and remanded.

      . Tousignant has maintained that this action is a negligence action as distinguished from a medical malpractice action. However, as set out in Minn.Stat. § 145.682, subd. 2, the statute’s requirements apply to any action against a health care provider "alleging malpractice, error, mistake, a failure to cure, whether based in contract or tort * * Despite Tousignant’s arguments to the contrary, her claim is one against health care providers for failing to exercise that standard of care required of them in care and treatment. By the common law definition of medical malpractice and under our slate's statutory scheme for such actions, this is a medical malpractice action. See generally Plutshack v. University of Minn. Hosps., 316 N.W.2d 1, 5 (Minn.1982); Minn.Stat. § 145.682, subd. 2.

      . Tousignanl's argument that the district court erred in requiring an affidavit to estab-lísh a prima facie case of medical malpractice was neither presented to the court of appeals for consideration nor was it presented to this court in Tousignant's petition for review. We are reluctant to address issues when they have not been properly presented and ordinarily will reject them. However, Tousignant did litigate this issue in district court and we note that the initial order of the district court denying her motion was not appealable. Because the resolution of this issue is dispositive in this case and because both parties have presented arguments on the issue, we will address it. See, e.g., O'Brien v. Mercy Hosp. & Convalescent Nursing Care Section, 382 N.W.2d 518, 520 (Minn.1986).


author: RUSSELL A. ANDERSON, Justice.

text:
    Carlyn M. SANDBORG, Trustee for the Next of Kin of Robert H. Sandborg, Jr., petitioner, Appellant, v. BLUE EARTH COUNTY, et al., Respondents.
    No. C6-99-243.
    Supreme Court of Minnesota.
    July 27, 2000.

      Patton, Hoverstein & Berg, P.A., Keith L. Deike, Waseca, for appellant.
    Johnson & Lindberg, P.A., Roger L. Rowlette, Minneapolis, for respondents.
   OPINION

RUSSELL A. ANDERSON, Justice.

When a jailer has a legal duty to protect a detainee from a reasonably foreseeable risk of suicide and the detainee commits suicide, is the fault, if any, of the detainee for his death to be determined and apportioned with the fault, if any, of the jailer?

Appellant sued Blue Earth County and two jail employees for wrongful death after her son, Robert Sandborg (Sandborg), committed suicide while in custody at the Blue Earth County Jail. At trial the jury was instructed that if the employees of the county and Sandborg were found at fault and the fault of each caused Sandborg’s death, then such fault was to be compared and apportioned between the parties. The jury found that the county and its employees were not at fault, but that Sandborg was at fault and that his fault caused his death. Appellant moved for judgment notwithstanding the verdict or a new trial, claiming the trial court erred in allowing the jury to determine and apportion Sand-borg’s fault with that of the county. The trial court denied the motion. The court of appeals reversed on a separate ground, but concluded that the trial court did not err in instructing the jury on comparative fault. See Sandborg, 601 N.W.2d at 198. We reverse and hold that comparative fault is not applicable to a wrongful death action where the risk of a detainee’s suicide is reasonably foreseeable and the jailer has a duty to protect the detainee from the risk of suicide.

On Friday, May 14, 1993, 24-year-old Sandborg called Mankato police and admitted that earlier that day he had sexually touched an 11-year-old girl. He was shaking and had been crying when the officer arrived to arrest him.

Once in custody Sandborg told the arresting officer that he either had to tell someone about the incident or get a gun and use it on himself. He said that he really thought about killing himself. The arresting officer asked him if he was still thinking about killing himself and he replied, “A little, not as much as before.”

The arresting officer completed a personal history form that included the question “Does inmate exhibit behavior suggesting suicide or assault?” The arresting officer answered “yes” because of Sand-borg’s comments about killing himself and because of the nature of the offense to which he confessed. The arresting officer turned Sandborg over to the custody officer with the personal history form. She told the custody officer of the crime Sand-borg said he committed.

The custody officer testified he asked Sandborg if he was suicidal and Sandborg answered, “No, not at this time” or “No, I was, but not now.” The arresting officer ■testified that Sandborg answered that he was more serious about it at one point, but now it “comes and goes.” The arresting officer left the booking area and told a second custody officer that Sandborg had made suicidal comments during the interview.

Sandborg was placed alone in a cell with a solid door, walls and viewing ports. After he was placed in the cell a custody officer asked him if he was going to do anything stupid or foolish and he answered no. The custody officer thought Sandborg was okay. Custody officers testified that they kept a close eye on Sandborg and told the next shift about him. However, custodial supervising officers were not told that Sandborg was a potentially suicidal detainee.

County policy required that any unusual medical screening information be transmitted in writing to the jail supervisor. The policy also required that a mental health professional be consulted if a detainee was suspected of being suicidal. Two area hospitals were • designated to hold detainees who may be mentally ill or a health risk to themselves or staff.

Sandborg was calm through the weekend. On Sunday, May 16, appellant visited him for a half hour and she did not find him suicidal.- Twenty minutes after appellant left, when the custody officer could not relay a message from appellant to Sandborg by intercom, the officer went to the cell and found Sandborg hanging from bed sheets.' Two days later he died. A suicide note, an obituary and a drawing of a gallows were found among his personal effects.

We granted review solely on the issue of whether Sandborg’s fault, if any, is to be determined and apportioned with the' fault, if any, of the county. Accordingly, we do not review the court of appeals’ conclusion that the county had a legal duty to protect Sandborg against self-inflicted harm. We turn then to the question whether it is .appropriate, where the court has determined that a risk of self-inflicted harm is foreseeable and the jailer has a duty to protect against that risk, to allow the jury to determine the fault of the detainee and compare the detainee’s fault to the fault, if any, of the jailer. Because this issue is one of law, our review is de novo. See Hamilton v. Commissioner of Pub. Safety, 600 N.W.2d 720, 722 (Minn.1999).

The court of appeals held that because of the special relationship between a jailer and a detainee arising from the jailer’s custody and control over the detainee, the jailer has a duty to protect a detainee from harm, and where, as here, self-inflicted harm is foreseeable, to protect the detainee from that particular harm. As the court of appeals noted, it is only when a person is particularly vulnerable and dependent upon a second person who holds considerable power over the first person’s welfare, and the risk of harm to the first person is reasonably foreseeable, that this special relationship imposes a legal duty on the part of the second person to protect the first from the expected harm. See Sandborg, 601 N.W.2d at 196-97; see also Donaldson v. Young Women’s Christian Ass’n, 539 N.W.2d 789, 792 (Minn.1995) (noting that absent a special relationship a person has no legal duty to act for the protection of another, even if the person realizes or should realize that action on his part is necessary).

In most special relationship cases comparative fault will be applicable. Comparative fault is applicable where the plaintiff fails to exercise reasonable care for his own protection. See Knutson v. Arrigoni Bros. Co., 275 Minn. 408, 413, 147 N.W.2d 561, 565 (1966). In a special relationship the defendant has a duty to exercise reasonable care consistent with that relationship to prevent harm to the plaintiff, but the plaintiff ordinarily retains his own duty to exercise reasonable care to prevent harm to himself. Each party has a separate duty to exercise reasonable care to prevent harm to the plaintiff. Because both parties’ breach of their respective duties contributed to the harm, their faults can be compared.

However, the Restatement of Torts recognizes that there are exceptional relationships where:

because the duty, and hence the entire responsibility for the situation, has been shifted to a third person, the original actor is relieved of liability for the result which folloivs from the operation of his own negligence. The shifted responsibility means in effect that the duty, or obligation, of the original actor in the matter has terminated, and has been replaced by that of the third person.

Restatement (Second) of Torts § 452, cmmt. d (1965) (emphasis added). Because the original actor is relieved of his duty in these extraordinary circumstances, he can have no fault to be compared.

The court of appeals held that comparative fault was applicable because “Sand-borg had the capacity to share the responsibility for his own well-being[ ],” noting there was no evidence besides his suicidal ideation that Sandborg suffered from a mental illness. Sandborg, 601 N.W.2d at 198. While a diagnosis of mental illness is a factor to consider when determining whether the suicide was reasonably foreseeable, a finding of mental illness is not necessary in making a determination regarding the applicability of comparative fault. The Restatement acknowledges that factors used to determine whether a duty has shifted entirely to another are imprecise. See Restatement (Second) of Torts § 452, cmmt. f (1965). However, the considerations include “the degree of danger and the magnitude of the risk of harm, the character and position of the * * * person who is to take the responsibility, his knowledge of the danger and the likelihood he will or will not exercise proper care.” Id.

The jailer-detainee relationship is an exceptional circumstance in which the duty to protect against a known possibility of self-inflicted harm transfers entirely to the jailer, and comparing the fault of the detainee is therefore not appropriate. In this case the risk of self-harm was significant and the county, which was in total control of Sandborg’s physical and medical needs, was in a position to take measures to protect against the harm. See, e.g., Estelle v. Gamble, 429 U.S. 97, 103-04, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (noting inmate must rely on prison authorities to treat medical needs). Indeed, the county’s policies required that it take measures to address the risk of self-harm. Accordingly, the duty to protect against Sandborg’s self-harm shifted entirely to the county, and it was error to determine and apportion Sandborg’s fault in the matter.

An additional reason not to apply comparative fault is that Sandborg’s fault is encompassed in the foreseeability determination that establishes the jail’s duty. In Tomfohr v. Mayo Foundation, we addressed directly the applicability of comparative fault to a hospital’s common law duty to protect a patient from self-inflicted injury. 450 N.W.2d 121, 125 (Minn.1990). In that case a mentally ill patient was admitted to a locked hospital ward where the medical staff was specifically aware of his suicidal ideations, and yet failed to prevent the patient’s suicide. See id. at 122-23.

We held in Tomfohr that the trial court properly refused to have the decedent’s fault determined and compared with that of the hospital on the basis that the decedent’s fault was subsumed in the determination of whether the self-destructive act was foreseeable. “When * * * asked * * * to determine whether the suicide attempt was reasonably foreseeable, * ⅜ * it is not only unnecessary but also duplica-tive to again review the patient’s conduct to determine whether the patient’s volitional act requires the application of comparative fault.” Id. at 125. This reasoning follows the Restatement of Torts:

The happening of the very event the likelihood of which makes the actor’s conduct negligent and so subjects the actor to liability cannot relieve him from liability. * * * To deny recovery because the other’s exposure to the very risk from which it was the purpose of the duty to protect him resulted in harm to him, would be to deprive the other of all protection and to make the duty a nullity.

Restatement (Second) of Torts § 449, cmmt. b (1965) (emphasis added). Therefore, comparative fault is not applicable when one party has a duty to protect another party from committing the very harm to be protected against, in this case self-inflicted harm. Because the jail had the duty to protect Sandborg from self-inflicted harm, and that is the same harm on which the decedent’s fault would be based, comparative fault is not applicable.

The county mistakenly argues that not to apply comparative fault is to impose strict liability on all jailers for any suicide death of a detainee. First, the court of appeals held that the county had a duty to protect Sandborg against self-inflicted harm not only because of the jailer-detainee relationship, but also because the risk of suicide was reasonably foreseeable. See Sandborg, 601 N.W.2d at 196-97. Second, the fact that the suicide occurred is not sufficient to impose liability. The plaintiff must still prove that the jail breached the reasonable standard of care. The jury may find that the actions the jail took constituted reasonable care under the circumstances. We hold only that where the jailer has a duty to protect a detainee from self-inflicted harm and fails to fulfill that duty, it does not make sense to offset the jailer’s fault by comparing the decedent’s fault for inflicting the harm that the jailer had the duty to prevent. Therefore, we do not impose strict liability on jails for every jail suicide.

The court of appeals remanded this case for a new trial and we do not disturb that ruling. We do reverse the court of appeals’ determination that the trial court properly submitted the fault of the detainee for determination by the jury. On retrial, the court should not instruct the jury to determine, compare or apportion Sand-borg’s fault, if any, to the fault of the county, if any.

Reversed and remanded.

      . Appellant Carlyn Sandborg will be referred to herein only as appellant.

      . The trial court instructed the jury that they were to determine whether the county had a legal duty to protect Sandborg from self-inflicted harm. The existence of a duty is generally a question of law for the court, not the jury. See Larson v. Larson, 373 N.W.2d 287, 289 (Minn.1985). On appellant’s motion for a new trial, the court recognized its error but concluded it was inconsequential because the jury found that the county employees were not at fault. The court of appeals reversed, concluding that the error was not harmless because the jury’s determination that the county was not at fault could have been based upon the determination that the county had no legal duty to protect Sandborg. See Sandborg v. Blue Earth County, 601 N.W.2d 192, 197 (Minn.App.1999).

      .By comparative fault we mean not simply the apportionment of damages among separate tortfeasors, but also the predicate finding of fault on the part of the tortfeasor (in this case, Sandborg), and causation. Compare Minn.Stat. § 604.01, subd. 1 (1998) (allowing court to direct jury by special verdict form to determine percentage of fault attributable to each party).


author: Paul H. Anderson Associate Justice

text:
    Richard FOX, Relator, v. MINNEAPOLIS PARK AND RECREATION BOARD, Self-Insurance/Berkley Administrators, Respondents, and HealthPartners, Inc., Intervenor.
    No. C3-00-823.
    Supreme Court of Minnesota.
    July 31, 2000.
    Timothy J. McCoy, McCoy, Peterson, Jorstad & Brabbit, Minneapolis, for appellant.

      John G. Brian, III, Felhaber, Larson, Fenlon & Vogt, St. Paul, 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 April 12, 2000, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01, subd. Kb).

BY THE COURT:

Paul H. Anderson

Associate Justice