author: HUDSON, Judge.

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.
    Court of Appeals of Minnesota.
    Feb. 17, 2004.

      Stephen F. Rufer, Pemberton, Sorlie, Rufer & Kershner, P.L.L.P., and Timothy A. Rundquist, Rundquist Law Office, Fergus Falls, MN, for appellants.
    Mike Hatch, Attorney General, Jerome L. Getz, Assistant Attorney General, St. Paul, MN, for respondent Department of Natural Resources.
    Craig E. Johnson, Johnson Ramstad & Mottinger, PLLP, Fargo, ND, for respondent Terry Ricks, d/b/a Ricks Aviation.
    Alexandra B. Klass, John D. Ostergren, Sara Jane Peterson, Dorsey & Whitney LLP, Minneapolis, MN, for respondent International Paper Company.
    Marci L. Iseminger (pro hac vice), Crary, Huff, Inkster, Sheehan, Ringgen-berg, Hartnett, Storm & Jensen, P.C., Sioux City, IA; and Patrick T. Tierney, Collins, Buckley, Sauntry & Haugh, P.L.L.P., St. Paul, MN, for amicus curiae Sioux Honey Association Cooperative.
    Considered and decided by HARTEN, Presiding Judge; PETERSON, Judge; and HUDSON, Judge.
   OPINION

HUDSON, Judge.

Appellants Jeffrey Anderson, James Whitlock, and Steven Ellis appeal from a district court grant of summary judgment in favor of respondents International Paper Company (IP) and the Department of Natural Resources (DNR).

In 1998, appellant beekeepers began noticing high bee mortalities in their beehives located at various properties across central Minnesota. Appellants claim the high bee mortalities were caused by respondents’ use of the pesticide Sevin XLR Plus (Sevin) on respondents’ hybrid poplar groves located approximately two to five miles from the beehives. Appellants sued respondents for trespass, nuisance, common-law negligence, and negligence per se, seeking an injunction, damages, and attorney fees. Both respondents moved for summary judgment, and the district court granted summary judgment on all claims against respondent IP and on all claims against respondent DNR, except for a portion of appellants’ negligence claim. On appeal, appellants argue that the district court erred in dismissing the negligence per se claim, because respondents were negligent per se for spraying Sevin in violation of the product label and Minnesota’s Pesticide Control Act, Minn.Stat. §§ 18B.01-18B.39 (2002). Additionally, appellants argue that the district court erred in dismissing the common-law negligence and nuisance claims. We affirm in part and reverse in part.

FACTS

Appellants are beekeepers who have raised bees in central Minnesota for many years. Appellants’ beekeeping operations consist of thousands of hives of bees placed in various locations in Douglas, Pope, Todd, Stearns, Otter Tail, and Morrison counties. Appellants do not own the land where their beehives are located. Rather, to use the land, appellants give landowners either “thank-you honey” or a small amount of money.

By nature, honeybees forage, feeding on nectar and pollen obtained from blooming flowers and weeds. Flower nectar is converted to honey. In the summer, appellants’ bees forage a radius of three to five miles from their hives, pollinating crops and plants in central Minnesota. In the winter, the bees are transported to California, where they pollinate crops such as almonds, cherries, and apples.

Cultivation of hybrid poplars began in west-central Minnesota in the late 1980s. At that time, the cultivation was almost exclusively on Conservation Resource Program lands (CRP). Under CRP rules, landowners are allowed to enter into agreements with the federal government by which landowners agree not to harvest any crops from the CRP lands during a defined period in return for cash payments.

In 1993, the DNR and the Alexandria area Resource Conservation and Development Council developed a proposal for “the Seale Up Project” (the project). One of the major goals of the project was to determine whether it would be economically feasible to grow hybrid poplars as a cash crop for biomass fuel to be used in electricity generation. Another major goal was to determine whether hybrid poplar cultivation would be economically beneficial to area landowners and would stimulate the local economy. Similarly, in 1995, IP developed several groves of hybrid poplar trees in order to provide a consistent source of pulp for its operations. In 1997, the DNR began to notice a significant infestation of cottonwood leaf beetles (CLB) in the project poplar groves. IP began experiencing the same problem in 1998.

Ron Stoffel, a DNR employee who was responsible for the project, determined that it was necessary and appropriate to use pesticides to stop this infestation. Stoffel knew of two types of insecticides that might be effective against the CLB, Bascillus Thuringiensis (BT) and carbaryl, more specifically the commercial product Sevin XLR Plus (Sevin). Sevin is toxic to bees even if they are not directly sprayed with the insecticide, because, after spraying has taken place, and before the insecticide dries, foraging bees pick up pollen poisoned with Sevin and carry it back to the hive. The poison can stay active in the hive for up to a year. The DNR acknowledges that it knew BT was less toxic than Sevin to bees; but BT would only control young CLB larvae and the older CLB larvae would continue to infest the poplars. Thus, Stoffel recommended that the DNR use Sevin.

Accordingly, whenever the DNR found a CLB infestation in a project grove, it contacted the grove owner and asked permission to spray the poplars with Sevin. After the DNR secured permission, the DNR contracted with a local chemical supplier and had the poplar grove sprayed. The DNR claims that because the suppliers were specially trained and licensed to perform their work, it did not supervise the suppliers. Similarly, in the summer of 1998, IP contracted with commercial pesticide applicators to implement IP’s insecticide program using both Sevin and BT.

In 1998, appellants noticed that many of their young bees and broods were dying. Appellants soon learned that Sevin was being sprayed on poplars nearby. On July 21,1999, at the direction of Stoffel, respondent Terry Ricks — a commercial applicator hired by the DNR- — sprayed Sevin on land owned by Dale Swanson. The land is located very close to hives owned by appellants Ellis and Whitlock. After the spraying, Ellis checked the hives and found many dead bees. Ricks stated that Stoffel said he knew the bees were present before he ordered the spraying. Stoffel denies this accusation.

On May 29, 2001, the DNR implemented a policy not to apply Sevin on any project groves without first notifying persons owning bee yards registered with the Minnesota Department of Agriculture (MDA). Appellants’ bee yards are registered with the MDA.

On March 19, 2002, appellants filed a complaint, asserting claims of trespass, nuisance, common-law negligence, and negligence per se against IP and DNR. Subsequently, appellant Ellis dismissed his claim against IP, leaving only Anderson and Whitlock with actions against IP. Ellis remained a named plaintiff in the suit against the DNR. IP and DNR brought motions for summary judgment on all of the claims.

The district court granted IP’s motion for summary judgment in its entirety and granted the DNR’s motion for summary judgment, except for the negligence claims by Ellis and Whitlock for the spraying of Sevin on Dale Swanson’s hybrid-poplar grove on July 21, 1999. This appeal follows.

ISSUES

I. Did the district court err by granting summary judgment in favor of respondents on appellants’ negligence per se claim?

II. Did the district court err by granting summary judgment in favor of respondents on appellants’ common-law negligence claim?

III. Did the district court err by finding that whether DNR employee, Ron Stoffel, knew appellants’ bee hives were located adjacent to the Swanson property presents a genuine issue of material fact?

IV. Did the district court err by granting respondents’ motion for summary judgment on appellants’ nuisance claim?

ANALYSIS

I

Appellants first argue that respondents DNR and IP are negligent per se for spraying the pesticide Sevin on their poplar groves in violation of the bee caution on the Sevin label.

The Minnesota Pesticide Control Act is similar to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and prohibits pesticide use “that is inconsistent with a label.” Minn.Stat. § 18B.07, subd. 2(a)(1) (2002).

The Sevin label states:

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.

Appellants claim that respondents violated three sections of the label. First, appellants contend respondents violated the section of the label that states “[f]or maximum honey bee hazard reduction, apply from late evening to early morning or when bees are not foraging.” Appellants interpret this language to mean that respondents are prohibited from spraying Sevin between the hours of 9:00 a.m. and 7:00 p.m. if the temperature is above 55 degrees. Appellants claim this is the prime time and weather condition for foraging honeybees. Second, appellants contend that respondents violated the section that states “[d]o not apply this product or allow it to drift to blooming crops or weeds if bees are foraging in the treatment area.” Appellants contend that this section prohibits respondents from spraying Sevin if any bees are foraging in an area with any blooming weeds before the pesticide dries. Finally, appellants claim that by not giving appellants notice of spray times, respondents violated the portion of the label that provides applications may be made during foraging periods if beekeepers take precautionary measures before sprayings.

Here, the district court found that respondents did not spray Sevin in a manner inconsistent with the label. The district court’s determination was based primarily on the affidavit testimony of Paul Liem-andt, director of the Minnesota Department of Agriculture Pesticide Enforcement Section (MDA), which is the state agency charged with investigating allegations of pesticide misuse. Liemandt, who has more than 15 years of experience in pesticide regulation and label interpretation, explained that the only mandatory language on the label is the section that states “[d]o not apply this product or allow it to drift to blooming crops or weeds if bees are foraging in the treatment area.” Liemandt opined that the remainder of the label is advisory and discretionary. Further, Liemandt stated that the mandatory section of the label should be interpreted to mean that applicators cannot apply Sev-in on a grove where: (1) a significant number of blooming crops or weeds are present; and (2) a significant number of bees are actively foraging in the treatment area. Liemandt testified that his interpretation is consistent with the Environmental Protection Agency’s (EPA) interpretation of the label.

Appellants argue that this court should reject Liemandt’s interpretation of the Sevin label because it is erroneous as a matter of law. But appellants offer little evidence to support this contention and offer no contrary evidence to support their interpretation of the bee-caution portion of the Sevin label. Appellants’ primary argument is that Liemandt’s interpretation of the label runs counter to an EPA manual for label interpretation. Appellants state that the EPA manual requires that, for Class One pesticides with Extended Residual Toxicity (ERT), the label prohibits spraying if bees are “visiting” the spray areas. But for less toxic non-ERT pesticides, the label prohibits spraying if the bees are “actively visiting” the spray area. Appellants argue that Sevin is an ERT pesticide and that “visiting,” rather than “actively visiting,” is synonymous with “foraging.” Thus, appellants contend that unlike the term “actively visiting,” the terms “visiting” and “foraging” do not require that a significant number of bees are present during or shortly after the spraying of Sevin for a violation of the Sevin label. But this argument is unpersuasive for four reasons. First, the referenced language in the EPA manual for label interpretation is general and does not specifically address the bee caution on the Sevin label. Second, the EPA manual that appellants rely on uses the terms “visiting” and “actively visiting” and the Sevin label uses the term “foraging.” Third, before arriving at the MDA’s interpretation of the Sevin label, Liemandt and another MDA investigator personally consulted with the EPA on the appropriate interpretation of the language in question. Finally, during his consultation with the EPA, the MDA investigator was specifically told that “foraging” meant “actively visiting” not “visiting.”

Further, while appellants questioned the expertise and authority of Liemandt, as an MDA official, to interpret pesticide labels on behalf of the EPA, appellants’ position is not well taken. First, in Liemandt’s affidavit, he explained that federal and state law give the MDA the authority to investigate and enforce pesticide activities. Indeed, the MDA is the agency directed under the Minnesota Pesticide Control Act, MinmStat. ch. 18B and 18D, to administer, implement, and enforce state pesticide laws. Next, Liemandt testified that the EPA has delegated authority to the MDA to administer and enforce pesticide law. See 7 U.S.C. § 136W-1 (2002) (stating that “a State shall have primary enforcement responsibility for pesticide use violations during any period for which the Administrator determines that such State — (1) has adopted adequate pesticide use laws and regulations”).

An agency decision is presumed to be correct, and courts give deference to the agency’s expertise and special knowledge in the field of its technical training, education, and experience. Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824 (Minn.1977). The decision will be reversed only if it reflects an error of law, the findings are arbitrary and capricious, or the findings are unsupported by substantial evidence. Cable Communications Bd. v. Nor-West Cable Communications P’ship, 356 N.W.2d 658, 668 (Minn.1984).

Based on the record in this case, we are persuaded that Liemandt’s expert testimony is the official agency testimony for both the MDA and the EPA and is entitled to deference. Deferring to Liem-andt’s interpretation of the Sevin label, we hold that the bee caution on the label only prohibited respondents from spraying Sev-in when a significant number of bees were actively foraging in an area with a significant number of blooming flowers or weeds, and that the remainder of the label was discretionary. As the district court correctly noted, to hold otherwise would effectively prohibit all applications of Sevin throughout the entire growing season, as appellants assert that there are always blooming weeds and flowers in IP’s and DNR’s poplar groves and that bees are regularly foraging three to five miles from the bee yards.

Having determined that the only mandatory directive on the Sevin label is the section prohibiting spraying when a significant number of bees are actively foraging in an area with a significant number of blooming flowers or weeds, we must now decide whether appellants established any genuine issues of material fact as to respondents’ compliance with the Sevin label. Stated otherwise, did appellants produce sufficient evidence to show that respondents sprayed Sevin in their poplar" groves when a significant number of bees were actively foraging in an area with a significant number of blooming flowers or weeds?

The district court found that appellants’ statements that there are always blooming plants in the poplar groves from around May 15 to freeze-up and that bees regularly forage on those plants are general aver-ments and are not sufficient to create genuine issues of material fact on the essential elements of their case. We agree.

When reviewing a summary judgment, we find that no genuine issue of material fact exists “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997) (alteration in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)). We view the evidence in the light most favorable to the party against whom summary judgment was granted. STAR Centers, Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76-77 (Minn.2002). But “the party resisting summary judgment must do more than rest on mere averments.” DLH, Inc., 566 N.W.2d at 71. Indeed, a genuine issue of material fact for trial must be established by substantial evidence. Id. at 69-70 (quoting Murphy v. Country House, Inc., 307 Minn. 344, 351, 240 N.W.2d 507, 512 (1976)).

[Tjhere is no genuine issue of material fact for trial when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.

DLH, Inc., 566 N.W.2d at 71.

Here, appellants have not met their burden. Appellants established that: their bee hives are located within a few miles of the poplar groves; respondents have sprayed the poplar groves with Sevin; and there are blooming plants in the poplar groves. This evidence, however, is not sufficiently probative to establish a genuine issue of material fact for trial on whether appellants’ bees were actively foraging in the poplar groves at the time of spraying or before the spray residues had dried. Significantly, appellants provided no testimony or documentation that any of their bees — much less a significant number of their bees — were actively foraging in the poplar groves during or shortly after spray times. Thus, they have not provided evidence of a label violation. Providing such evidence may have required appellants, for example, to engage in site visits shortly after respondents sprayed Sevin, or take pictures to show that a significant number of their bees were present in respondents’ poplar groves at the relevant times. We acknowledge that collecting and producing such evidence is very difficult given the foraging nature of bees, but our summary judgment standards are no less applicable simply because gathering evidence is difficult. Here, appellants’ claim came down to the mere averments that, because bees are regularly foraging in the general area of the poplar groves, the bees must have been in the grove when spraying occurred. But these general averments do not create a genuine issue of material fact, and the district court properly granted summary judgment in favor of the DNR and IP on appellants’ negligence per se claim.

Because our holding resolves appellants’ negligence per se claim, we do not reach the issue of vicarious liability.

II

Next, appellants argue that respondents were negligent for spraying Sevin on their poplar groves because respondents had a duty to use pesticides in a way that did not pose an unreasonable risk of harm to things that may foreseeably be affected by the pesticides.

In a negligence action, a defendant is entitled to summary judgment when the record reflects a “complete lack of proof on an essential element of the plaintiffs claim.” Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn.1995). To prove negligence, a plaintiff must show (1) a duty of care existed, (2) that duty was breached, (3) an injury was sustained, and (4) breach of the duty proximately caused the injury. Id. Whether a duty exists is a question of law, which appellate courts review de novo. Larson v. Larson, 373 N.W.2d 287, 289 (Minn.1985).

Minnesota courts have not addressed what duty landowners owe to bees flying over or foraging on their property. But courts in other states have held that bees foraging on the property of others are trespassing animals. See Lenk v. Spezia, 95 Cal.App.2d 296, 213 P.2d 47, 51 (1949); see also Lundberg v. Bolon, 67 Ariz. 259, 194 P.2d 454, 460 (1948) (noting that the fact that the bees were trespassing was neither pleaded as a defense nor proved; and noting that there was no evidence the bees went onto the defendants’ land and ate the poison there). Lenk also held that landowners only owe “trespassing bees” the duty not to intentionally or wantonly harm the bees while on then-land. The Wisconsin Supreme Court reached the same conclusion regarding the common-law duty of care, but rejected the underlying trespassing analogy. Bennett v. Larsen Co., 118 Wis.2d 681, 348 N.W.2d 540, 547-48 n. 3 (1984). The holding in Bennett differs from the Lenk holding in that the Bennett court concluded that bees should not be characterized as trespassers because the definition of a trespasser envisions an individual that the landowner can prevent from coming onto its land. Id. And landowners cannot prevent bees from coming onto their land because bees are by nature foragers that fly to and from groves wherever there is nectar or pollen. Id. Thus, the Bennett court concluded that bees are not trespassers and a landowner does not owe a common-law duty of care to bees. Nevertheless, the court held that a landowner cannot wantonly or intentionally destroy bees. Id.

Appellants, on the other hand, argue that respondents owe beekeepers a duty not to use a product such as Sevin in a manner that creates an unreasonable risk of harm to entities which foreseeably may be affected by its use — here, appellants’ bees. In support of their position, appellants cite Red River Spray Serv., Inc. v. Nelson, 404 N.W.2d 332, 334 (Minn.App.1987) (spray service was negligent for aerial spraying of herbicide near farmer’s property). But Red River is distinguishable from this case. Red River involved exposure to a neighboring crop resulting from herbicide overspray or drifting. Here, appellants allege their bees were exposed to Sevin while foraging on land owned by IP and the project participants, rather than as a result of the pesticide drifting off respondents’ land. Appellants admit that there is no evidence suggesting that drift or overspray occurred, and, significantly, the district court made a specific finding to that effect. Thus, we conclude that Red River is not applicable to the case at hand.

Instead, we are persuaded that respondents do not owe a duty to appellants’ bees. Although the case is not binding on this court, we conclude that the reasoning of the Bennett court is persuasive. Wfliile the differing theories of Lenk and Bennett may often produce the same ■ result, we believe the reasoning of the Bennett court rests on stronger legal principles. Indeed, bees do not' fit into the traditional definition of trespasser because landowners have no power to prevent bees from entering onto their land. Further, we are persuaded that, as a matter of policy, a landowner is prohibited from intentionally or wantonly harming bees on his or her property.

Here, with the exception of the Swanson incident, there is no evidence— and appellants have never claimed — that respondents wantonly or intentionally harmed the bees. Indeed, all of the evidence shows that both IP and the DNR sprayed Sevin solely for the purpose of stopping the CLB infestation — not to harm appellants’ bees. Therefore, because appellants have not established that respondents acted intentionally or wantonly to harm the bees, we affirm the district court’s grant of summary judgment to respondents on appellants’ negligence claim.

Ill

Next, we address the district court’s finding that there is a genuine issue of material fact regarding whether respondent DNR was negligent for spraying Swanson’s poplar grove. The district court found that if Stoffel knew bees were located near Swanson’s property prior to ordering the spraying of Sevin, spraying could rise to the level of intentional and wanton conduct.

Respondent DNR argues that there is no genuine issue of material fact because Stoffel did not intentionally or wantonly harm the bees. Further, respondent argues that the DNR cannot be liable for negligence because it hired an independent contractor, respondent Terry Ricks, to conduct the actual spraying of the poplars on Swanson’s property. In effect, the DNR argues that it cannot be vicariously liable to appellants for any negligence attributable to Ricks. Appellants counter by noting that the DNR nevertheless played an active role in the spraying by specifying the chemical to be used, purchasing the chemical and delivering it, and specifying the rate of application.

In Minnesota, the general rule is that the employer of a contractor is not liable for the harm caused by an act or omission of the contractor. Conover v. N. States Power Co., 313 N.W.2d 397, 403 (Minn.1981). But the Conover court recognized that many exceptions have eroded this common-law rule. Id. at 403-04. These exceptions rest primarily on the policy grounds that an employer should not be permitted to escape a direct duty of care for the personal safety of another by delegating that responsibility to the independent contractor for the proper conduct of certain types of work — e.g., work that entails a peculiar risk of physical harm to others unless special precautions are taken. Id. at 404. Thus, the so-called non-delegable-duty rule was intended to prevent one from contracting out hazardous work and thereby escaping one’s responsibility to the general public and adjoining property owners.

Minnesota courts have not squarely decided if any of the Restatement exceptions applies to an independent contractor spraying pesticides. Instructive on this point, however, is our ruling in Kellen v. Mathias, 519 N.W.2d 218, 221 (Minn.App.1994), where we stated that if spraying pesticides is an ultrahazardous activity, an employer is vicariously liable for any loss caused by the spraying. See also Restatement (Second) of Torts § 427A (1975). Moreover, other states have held that because spraying pesticides and crop dusting is so dangerous the nondelegable-duty rule applies. See, e.g., Boroughs v. Joiner, 337 So.2d 340, 343 (Ala.1976) (stating that landowner who hires independent contractor to spray pesticides cannot avoid liability); Lawler v. Skelton, 241 Miss. 274, 130 So.2d 565, 569 (1961) (explaining that owner of farmland may not delegate work of spraying of crops to an independent contractor and avoid liability); Loe v. Lenhardt, 227 Or. 242, 362 P.2d 312, 318 (1961) (holding landowner who hires contractor to spray chemicals from an airplane is liable for the resulting harm).

Although the record supports appellants’ claim that Sevin is toxic to bees, none of the parties briefed or addressed at oral argument the specific question of whether spraying pesticides is an ultrahazardous activity. Nor does it appear that the district court was presented with any evidence on this issue. Accordingly, on the record before us, we are not prepared to find that the spraying of pesticides is an ultrahazardous activity. Therefore, the general rule that the employer of an independent contractor is not liable for the harm caused by an act or omission of the independent contractor applies, and the DNR is not responsible for the acts of Ricks, its independent contractor who sprayed Sevin on the Swanson property, even though he allegedly knew that appellants’ bee hives were located nearby. The DNR hired Ricks, an independent contractor who had specialized knowledge and expertise in the application of pesticides. Because the DNR did not control the spray, it should not be held vicariously liable for any resulting injury to appellant’s bees. Accordingly, the district court erred in denying summary judgment for respondent DNR on this issue.

IV

Finally, appellants argue that respondents are liable in nuisance because respondents substantially interfered with appellants’ use and enjoyment of their apiary operations. The district court granted respondents’ summary-judgment motion, finding that appellants were trying to turn nuisance law “on its head” by claiming that respondents created a nuisance when appellants’ property (the bees) flew onto respondents’ land.

Nuisance is defined by statute as “[a]ny-thing which is injurious to health, or indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of' life or property.” Minn.Stat. § 561.01 (2002). An action in nuisance “may be brought by any person whose property is injuriously affected or whose personal enjoyment is lessened by the nuisance.” Id.

Private nuisance has been defined as “an interference with the use and enjoyment of land.” W. Keeton, et al., Prosser and Keeton on the Law of Torts § 87, at 619 (5th ed.1984). “The ownership or rightful possession of land necessarily involves the right not only to the unimpaired condition of the property itself, but also to some reasonable comfort and convenience in its occupation.” Id. Thus, there can be no nuisance if a party cannot show an injury stemming from an interest in land. See Am. Computer v. Jack, Farrell Implement, 763 F.Supp. 1473, 1494 (D.Minn.1991). For example, the injury alleged by the appellants in Am. Computer — the deactivation of their computer-software' programs — is not the type of injury that courts have found to violate the nuisance statute. Id. Similarly, here, we state the obvious: bees are not land. Appellants’ nuisance claim is without merit because they have failed to demonstrate an injury stemming from an interest in land. Accordingly, the district court properly granted summary judgment to IP and DNR on appellants’ nuisance claim.

Because our analysis of the negligence per se, common-law negligence and nuisance claims resolves this case, we do not reach the DNR’s immunity defense.

DECISION

We affirm the district court’s grant of summary judgment for respondents DNR and IP on appellants’ claim of negligence per se because appellants failed to establish a genuine issue of material fact as to whether respondents violated the bee caution on the Sevin label. In addition, the district court correctly found that respondents were not liable for common-law negligence because they owed no , common-law duty to bees foraging or flying over their land; respondent landowners were merely prohibited fr.om intentionally or wantonly harming the bees. Accordingly, we affirm the district court’s grant of summary judgment on appellants’ negligence claim. Further, the district court correctly found that respondents were not liable for nuisance, and we affirm its grant of summary judgment for respondents on this claim, as well. Finally, we reverse the district court’s summary-judgment ruling regarding the “Swanson incident” and hold that the DNR was not liable for the acts of its independent contractor, Ricks.

Affirmed in part and reversed in part.

      . For convenience we use the term appellants when discussing the claims against IP and DNR, but Ellis is not a party to the case against IP because his bee hives are not located geographically proximate to IP’s poplar groves.

      . The Bennett court held, however, that the defendant landowners did have a duty to the plaintiff because they may have violated the Wisconsin pesticide statute by spraying in violation of the pesticide label. 348 N.W.2d at 549-50. The court concluded that the jury could have found the defendant landowners negligent per se; and therefore the plaintiffs were prejudiced by the trial court's failure to give a proper jury instruction on the negligence per se claim. Id. at 551.

      . This holding does not apply to the "Swanson incident/' discussed in the next section of this opinion.

      . Restatement (Second) of Torts § 416 (1975) (Work Dangerous in Absence of Special Precautions); Restatement (Second) of Torts § 417 (Work Done in Public Place); Restatement (Second) of Torts § 418 (Maintenance of Public Highways and Other Public Places); Restatement (Second) of Torts § 419 (Repairs Which Lessor Is Under a Duty to His Lessee to Make); Restatement (Second) of Torts § 420 (Repairs Gratuitously Undertaken by Lessor); Restatement (Second) of Torts § 421 (Maintenance of Structures on Land Retained in Lessor's Possession Necessary to Tenant's Enjoyment of Leased Land); Restatement (Second) of Torts § 422 (Work on Buildings and Other Structures on Land); Restatement (Second) of Torts § 422A (Work Withdrawing Lateral Support); Restatement (Second) of Torts § 423 (Making or Repair of Instrumen-talities Used in Highly Dangerous Activities); Restatement (Second) of Torts § 424 (Precautions Required by Statute or Regulation); Restatement (Second) of Torts § 425 (Repair of Chattel Supplied or Land Held Open to Public as Place of Business); Restatement (Second) of Torts § 426 (Negligence-Collateral to Risk of Doing the Work); Restatement (Second) of Torts § 427 (Negligence as to Danger Inherent in the Work); Restatement (Second) of Torts § 427A (Work Involving Abnormally Dangerous Activity); Restatement (Second) of Torts § 427B (Work Likely to Involve Trespass or Nuisance); Restatement (Second) of Torts § 428 (Contractor's Negligence in Doing Work Which Cannot Lawfully be Done Except Under a Franchise Granted to His Employer); Restatement (Second) of Torts § 429 (Negligence in Doing Work Which Is Accepted in Reliance on the Employer’s Doing the Work Himself).

      . Because we reverse the district court’s summary-judgment ruling on the ground that an employer of a contractor is not liable for the harm caused by an act or omission of the contractor, we need not reach the issue of whether the district court properly concluded that there was a material fact question as to whether respondent Stoffel knew the ■ bees were present when he hired Ricks to spray the Swanson property.


source: Caselaw Access Project

author: LANSING, Judge.

license: Public Domain

text:
    Cheryl ROWE, Respondent, v. Mohamed MUNYE, Appellant, Employers Mutual Insurance Company/Dakota Fire Insurance Company, Defendants.
    No. A03-465.
    Court of Appeals of Minnesota.
    Feb. 17, 2004.

      Michael D. Tewksbury, Darin S. Wien-eke, Tewksbury, Kerfeld, Zimmer, Minneapolis, MN, for respondent.
    Terence R. Peterson, Scott A. Brehm & Associates, Roseville, MN, for appellant.
    Considered and decided by TOUSSAINT, Chief Judge, LANSING, Judge, and WRIGHT, Judge.
   OPINION

LANSING, Judge.

In an action for personal injuries sustained in a car accident, Cheryl Rowe presented medical evidence of a new injury and an aggravation of a pre-existing condition. Over Mohamed Munye’s objection, the district court instructed the jury, using CIV JIG 91.40, that if they were unable to separate damages caused by the pre-exist-ing condition from the existing medical condition, then Munye would be liable for all of the damages. The jury returned a verdict for Rowe against Munye, and Mu-nye appeals from the resulting judgment.

FACTS

The district court conducted a three-day jury trial on the issue of damages sustained by Cheryl Rowe when Muhamed Munye’s car struck her car from behind as she made a left turn. Munye, in his answer to Rowe’s complaint, denied liability. He alleged that his car, in turn, had been struck from behind by an unidentified car that had either caused a second collision with Rowe’s car or pushed his car into hers. Rowe believed that a third car, driven by a friend of Munye’s might have been involved in the accident, but she was unable to ascertain the identity of this driver. Because of the alleged involvement of an unidentified car, Rowe sued her uninsured motorist carrier, Employers Mutual Ins. Co., as well as Munye.

Munye did not cooperate in the discovery process. After he failed to answer interrogatories, attend his three scheduled depositions, and appear for nonbinding arbitration, Rowe moved for summary judgment. Before the summary judgment hearing, the attorneys for all three parties reached an agreement that was stipulated on the record and incorporated into an order. The stipulation provided that if Munye again failed to appear for his rescheduled deposition, his affirmative defense alleging involvement of an uninsured driver would be stricken, Employers Mutual would be dismissed with prejudice, and the court would direct a verdict of liability against Munye, leaving only the issue of damages for trial. Munye failed to appear for his rescheduled deposition, and on his attorney’s motion, the district court implemented the stipulated order.

At the jury trial on damages, Rowe testified that when Munye’s car struck her car from behind, she was wearing a seat-belt. The force of the collision propelled her forward, but the seatbelt restrained her from striking any part of the car. Immediately after the accident she had a headache, and her neck was sore. The next day, she saw her chiropractor, Dr. Kelly Sheehan, who took x-rays, manipulated her spine, and applied traction. Rowe had experienced generalized pain in her neck, shoulders, and lower back over a period of years. The pain did not appear to be connected with any significant injuries to her back or neck but had required periodic appointments with chiropractors. She had begun receiving treatment from Sheehan three times a week beginning two months before the accident. About five months after the accident, an MRI showed that Rowe had a posterior disc herniation at C5 and C6 with mild posterior annular bulging at the C6-C7 level. Rowe continued treatment with Sheehan.

Two medical experts provided testimony at trial through videotaped depositions. Sheehan presented opinion evidence that Rowe suffered a permanent injury to the soft tissues of her neck and back as a result of the accident. He also testified that Rowe had degenerative neck problems before the accident. When asked whether Rowe’s injuries were caused by the accident or aggravated by the accident, he testified: “I think they were actually both. I think they are aggravated and accentuated, and I think that there was more damage done to her.”

Munye presented the videotaped deposition of Dr. Irman Altafullah, a consulting neurologist, who performed an independent medical examination. Altafullah testified that his physical examination showed that Rowe had a good range of motion in her neck and that the MRI revealed no pinched nerve in the neck that could account for Rowe’s report of numbness in her right hand. He stated that as a result of the accident, Rowe may have suffered neck sprain or whiplash and also a lower back sprain. Based on Rowe’s medical information, Altafullah believed “that this whiplash or sprain ... was superimposed ... on ... a history of [Rowe’s] longstanding neck, mid, and lower back pain.” He concluded that Rowe had not sustained permanent aggravation or injury as a result of the accident. The record also contains the results of an examination by Dr. Ronald Tarrel, a consulting neurologist, who reported that Rowe developed increased soreness and headaches after the accident.

Rowe claimed that her damages attributable to the accident totaled $79,000. This amount included $6,000 for past medical damages; $15,000 for past pain, disability, and emotional distress; $52,000 for future pain, disability, and emotional distress; and $6,000 for future medical expenses.

At the close of trial, Rowe submitted proposed jury instructions, including CIVJIG 91.40. Munye’s attorney objected to instructing the jury using CIVJIG 91.40. He contended that the last line of the instruction impermissibly shifted the burden of proving damages to Munye. The district court overruled the objection, concluding that CIVJIG 91.40 applied when the facts establish a pre-existing medical condition. In conformance with CIVJIG 91.40, the court instructed the jury:

There is evidence that Cheryl Rowe had a pre-existing disability or medical condition at the time of the accident.
Mohamed Munye is liable only for any damages that you find to be directly caused by the accident.
If you cannot separate damages caused by the pre-existing disability or medical condition from those caused by the accident, then Mohamed Munye is liable for all of the damages.

By special verdict, the jury found that Rowe sustained a permanent disability as a result of the accident but did not incur medical expenses in excess of $4,000. The verdict provided $7,500 in damages for past pain, disability, and emotional distress; $13,000 for future pain, disability, and emotional distress; and $4,000 for future health care costs or expenses. The district court entered judgment for Rowe against Munye in the amount of $27,331.72, including costs and prejudgment interest.

Munye moved for a new trial, arguing that CIVJIG 91.40 misstates Minnesota law resulting in substantial prejudice to him. The district court denied the motion, and Munye appeals.

ISSUE

Did prejudicial error result from the district court’s instruction to the jury, in a case that involved a claim of damages for both new and pre-existing injuries, that if they could not separate damages cáused by the pre-existing disability or medical condition from those caused by the accident, defendant was liable for all of the damages?

ANALYSIS

We have twice before addressed the question of whether the jury instruction for aggravation of personal damage provided in CIVJIG 91.40 misstates Minnesota law when it advises judges to instruct the jury that “[i]f you cannot separate damages caused by the pre-existing disability or medical condition from those caused by the accident, then [the defendant] is liable for all the damages.”

In Blatz v. Allina Health Sys., 622 N.W.2d 376 (Minn.App.2001), review denied (Minn. May 16, 2001), we held that when applied to apportion damages between the aggravation of a pre-existing medical condition and new injuries attributable to an at-fault defendant, CIVJIG 91.40 misstates Minnesota case law and impermissibly extends the single indivisible injury rule to circumstances that do not involve joint and several liability. Id. at 391-92. We reaffirmed this analysis in Morlock v. St. Paul Guardian Ins. Co., 632 N.W.2d 268, 271-72 (Minn.App.2001), rev’d 650 N.W.2d 154 (Minn.2002) (holding that facts did not warrant instruction which even if erroneous, was not prejudicial).

On review, the supreme court concluded that the district court in Morlock had erred by giving a jury instruction based on CIVJIG 91.40 when neither party had argued for aggravation damages, but held that the error was not prejudicial. Morlock, 650 N.W.2d at 162. Although the court withheld a final determination on the propriety of CIVJIG 91.40, the court stated that “it may be possible that CIVJIG 91.40 could be inappropriate in a situation where a plaintiff is seeking both ‘new1 damages and damages for an aggravation of an admitted to preexisting condition.” Id. at 161. In evaluating whether the first two sentences of CIVJIG 91.40 are consistent with Minnesota law, the court used as its touchstone its holdings in Nelson v. Twin City Motor Bus Co., 239 Minn. 276, 58 N.W.2d 561 (1953) and Schore v. Mueller, 290 Minn. 186, 186 N.W.2d 699 (1971). See Morlock, 650 N.W.2d at 160.

These statements are consistent with our holding in Blatz. Blatz distinguished between only one at-fault defendant’s liability for aggravation of a pre-existing condition or disability as described in Nelson and Schore and more than one at-fault defendants’ liability for tortious conduct that combines to harm the plaintiff described in Mathews v. Mills, 288 Minn. 16, 178 N.W.2d 841 (1970). Blatz, 622 N.W.2d at 390-92.

Minnesota law provides that when more than one at-fault defendant who has a substantial part in causing harm to the plaintiff seeks to limit liability by apportioning the harm, each defendant who seeks limitation has the burden of proving both that the harm is divisible and the amount of the harm for which each defendant is not liable. Canada by Landy v. McCarthy, 567 N.W.2d 496, 507 (Minn.1997). “[U]nless the damage caused by each [tortfeasor] is clearly separable, permitting the distinct assignment of responsibility to each, each is liable for the entire damage.” Mathews, 288 Minn. at 21, 178 N.W.2d at 844 (quotation omitted). In Mathews, the supreme court adopted the reasoning of the Restatement (Second) of Torts, § 433B(2) (1965), which provides that

[w]here the tortious conduct of two or more actors has been combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor.

Id. at 22, 178 N.W.2d at 845. In this context, the Mathews court noted that considerations of fairness dictate that the injured party not be required to bear the burden of “proving which impact in a chain collision did which harm.” Id. Relying on principles of joint and several liability, the court reasoned that placing the burden of proof on the defendant “is a result of a choice made as to where a loss ... shall fall — on an innocent plaintiff or on defendants who are clearly proved to have been at fault” in jointly causing all of the damages. Id.

But Minnesota law governing aggravation of a pre-existing condition is grounded on a different rule:

“[Wjhere a pre-existing disease is aggravated by the negligence of another person, the victim’s recovery ... is limited to the additional injury caused by this aggravation over and above the consequences which the pre-existing disease, running its normal course, would itself have caused if there had been no aggravation by negligent injury.”

Nelson, 239 Minn. at 280, 58 N.W.2d at 563.

The rule on aggravated conditions reflects the policy consideration that a defendant not be held liable for harm which he did not cause. See Leubner v. Sterner, 493 N.W.2d 119, 122 (Minn.1992) (noting that “damages for aggravation of a [pre-existing] condition are simply a means to assure that the defendant pays only for the harm he causes, not the harm plaintiff already had”). Thus the plaintiff retains the burden of proving the extent of any aggravation. See Schore, 186 N.W.2d at 701 (discussing plaintiffs burden of proof in context of aggravation damages).

The previous aggravation-of-damages instruction, CIVJIG 163, taken from the 1986 Jury Instruction Guide, is based on Nelson. Morlock, 650 N.W.2d at 160. It summarizes Minnesota law on aggravation:

A person who has a defect or disability at the time of an accident is nevertheless entitled to damages for any aggravation of such pre-existing condition, even though the particular results would not have followed if the injured person had not been subject to such pre-exist-ing condition. Damages are limited, however, to those results which are over and above those which normally followed from the pre-existing condition had there been no accident.

4 Minnesota Practice, CIVJIG 163 (1986). No one has argued that CIVJIG 163 is incorrect or that Nelson or Schore are inaccurate statements of Minnesota law on aggravation. Both the majority and the dissent in Morlock are grounded on these cases.

This instruction was replaced in 1999 in the fourth edition of the Minnesota Jury Instruction Guides — Civil by CIVJIG 91.40, which was designated as “Items of Personal Damage — Aggravation.” 4A Minnesota Practice, CIVJIG 91.40 (1999). The most recent version of CIVJIG 91.40 provides:

Items of Personal Damage — Aggravation
Pre-existing disability or pre-existing medical condition
There is evidence that (plaintiff) had a pre-existing disability or medical condition at the time of the accident.
(Defendant) is liable for any damages that you find to be directly caused by the accident.
[If you cannot separate damages caused by the pre-existing disability or medical condition from those caused by the accident, then (defendant) is liable for all the damages.]

4A Minnesota Practice, CIVJIG 91.40 (Supp 2004) (brackets in original). The brackets added to the final paragraph, are in response to the Minnesota Supreme Court’s opinion in Morlock and our opinion in Blatz. Id. at use note.

The CIVJIG’s original use note covering CIVJIG 91.40 indicates that the derivation for the change in aggravation instruction from CIVJIG 163 to CIVJIG 91.40 was the supreme court’s decision in Canada. 4A Minnesota Practice, CIVJIG 91.40 use note (1999). Principles drawn from the Restatement have also been advanced as a basis for the change in the aggravation instruction. See Blatz, 622 N.W.2d at 390. We are unable to find support for the change in either source.

As we said in Blatz, we read Canada as an application of the doctrine stated in Mathews that when two or more at-fault defendants have a substantial part in causing harm to the plaintiff, and one or more of the defendants seeks to limit liability by apportioning the harm, the burden is on each defendant seeking limitation to prove both that the harm is divisible and the amount of the divided harm for which each is not liable. Canada essentially holds that tortfeasors who act independently of one another — and who are therefore severally liable for the separate damage each independently causes — nevertheless ' are jointly and severally hable for all damages if the resulting injuries are indivisible or the defendant seeking to avoid joint liability fails to establish an apportionment. We did not read Canada then, and we do not read it now, to extend a defendant’s burden of proof to apportionment between an at-fault defendant and an innocent or a pre-existing cause. “Canada ... involved a unique application of the single indivisible injury rule in which joint and several liability is imposed upon multiple tortfea-sors.” Morlock, 650 N.W.2d at 165 (Russell Anderson, J., dissenting (citing Canada, 567 N.W.2d at 507-08 and Mathews, 288 Minn. at 20-21, 178 N.W.2d at 844)).

We further concluded in Blatz that the Restatement does not provide a basis for the change from CIVJIG 163 to CIVJIG 91.40. Although the Restatement recognizes that damages may be apportioned between innocent conduct and at-fault defendants, it does not place a burden on a defendant to prove divisibility or the limit of a defendant’s own liability unless two or more actors are involved. See Restatement (Second) of Torts § 433B(2), (3) (placing apportionment burden of proof on two or more actors who have combined to cause harm to plaintiff). Comment g specifically provides that the failure-of-proof provisions in § 433B(3) apply only when each of two or more actors has been proved to be at fault (stating that rule “has no application to cases of alternative liability” when no proof exists that conduct of more than one actor has been tortious). And comment c to § 433(B)(2) reiterates that subsection (2), assigning the burden of apportionment to the tortfeasor, is an exception to the general rule thát the plaintiff has the burden of establishing that the defendant’s tortious conduct caused the harm, further confirming that burden-shifting only applies to multiple tortfeasor situations. Id. at cmt. c; see also Morlock, 650 N.W.2d at 165 (Russell Anderson, J., dissenting (discussing Restatement)).

For these reasons we conclude that CIVJIG 91.40 impermissibly imposes on an at-fault defendant the burden of proving that he did not cause the portion of plaintiffs damages attributable to a pre-exist-ing disability or condition. We find no basis for this conclusion in Minnesota law. The plaintiff in a negligence action bears the burden of proving the link between the defendant’s action and the injuries suffered. Hagsten v. Simberg, 232 Minn. 160, 163-65, 44 N.W.2d 611, 613 (1950) (noting that “Megligence, and its causal relation to the injuries upon which the right to recover rests must be proved by that degree of proof ... [required] by law and that mere proof of the happening of the accident ... without proof of negligence or its causal relation to the result complained of, is not sufficient”).

Once causation is established, the plaintiff may recover damages flowing from the defendant’s negligent act. See Phelps v. Commonwealth Land Title Ins. Co., 537 N.W.2d 271, 275 n. 2 (Minn.1995) (defining general damages as “the natural, necessary and usual result of the wrongful act or occurrence in question”) (emphasis added). But a jury instruction requiring the apportionment of damages based on the defendant’s act, without recognition of the plaintiffs burden of proof on causation, wrongfully imposes on the defendant the burden of showing that he was not responsible for damages flowing from the plaintiffs pre-existing condition, which he had no part in causing. This allocation of the burden of proof would conflict with the general allocation principle that the party with the greatest access to the relevant evidence should bear the burden. See Morlock, 650 N.W.2d at 165 (Russell Anderson, J., dissenting). Multiple tort-feasors can presumably furnish evidence as to their degree of contribution to the plaintiffs injury. “But, if the plaintiff is suffering from a [pre-existing] injury, he or she is in the best position to furnish information on the degree to which that injury was aggravated by the defendant’s act.” Id.

The current use note to CIVJIG 91.40 advocates giving the final sentence of CIVJIG 91.40 only when there is no reasonable basis for apportionment between damages caused by a pre-existing condition and those caused by an accident for which the defendant is responsible. 4A Minnesota Practice, CIVJIG 91.40 use note (Supp. 2004). If the district court determines that there is a reasonable basis for apportionment, the use note recommends giving instead an alternative instruction that directs the jury to “award the plaintiff only those damages that were caused by defendant’s negligence.” Id.

We believe that it would be the exceptional case in which there is no reasonable basis for apportionment. “ ‘[S]o long as there is some modicum of evidence that would permit the factfinder to make a causal apportionment, that course is preferable to making whichever party bears the burden of proof to bear the entirety of the loss.’ ” Morlock, 650 N.W.2d at 165 (Russell Anderson, J., dissenting (quoting Restatement (Third) of Torts: Liability for Physical Harm § 28 cmt. d(2) (Tentative Draft No. 2, 2002))). But if it is for those exceptional cases that the CIVJIG jury instruction has been rewritten, then the exception has significantly dominated the rule. The current version of 91.40 does not state that the defendant is liable for all damages caused by the accident only if the jury determines that no reasonable causal apportionment can be made. Instead, the bracketed portion provides that “if you [the jurors] cannot separate damages caused by the pre-existing disability or medical condition from those caused by the accident, then (defendant) is hable for all the damages.” 4A Minnesota Practice, CIVJIG 91.40 (Supp. 2005). A jury may encounter a number of reasons why they cannot separate the damages that would not necessarily be caused by the fact that no reasonable causal apportionment exists. These reasons could include failure of proof, confusing or conflicting testimony, juror indecision, or juror disagreement. While other instructions may weigh against relying on these reasons, the aggravation instruction would appear to override those instructions and permit this type of consideration.

The facts of this case illuminate the problems addressed in Morlock and Blatz that attend the use of CIVJIG 91.40 in determining aggravation damages. Rowe admitted that she had a pre-existing medical condition for which she was undergoing chiropractic treatment at the time of the accident. She was therefore in the best position to furnish information of the degree to which that condition was aggravated by Munye’s negligent act of striking her car. See Morlock, 650 N.W.2d at 165 (Russell Anderson, J., dissenting). The issue of her prior injuries does not constitute an affirmative defense for which Mu-nye bears the burden of proof, but is only a defense to her allegations of liability, for which she retains the burden of proof. See Leubner v. Sterner, 493 N.W.2d at 122 (“ ‘Aggravation of a [pre-existing] physical condition’ is a measure of damages, not a theory of liability, even if one puts the word ‘negligence’ in front of it.”). Furthermore, the first two sentences of the current instruction do not provide jurors with much guidance in determining aggravation. It is for those reasons that many district court judges have returned to giving CIVJIG 163 rather than CIVJIG 91.40.

We now turn to the question of whether the error in the jury instruction was prejudicial. If an instruction is erroneous and an appellate court is unable to determine whether the error affected the jury, a new trial should be granted. Lieberman v. Korsh, 264 Minn. 234, 242, 119 N.W.2d 180, 186 (1962).

At trial both Rowe and Munye argued aggravation; Rowe as a means of recovery, and Munye as a means of mitigating damages. Both medical experts, Sheehan and Altafullah, presented testimony indicating that Rowe’s injuries were aggravated by the accident. Consequently the erroneous instruction created a substantial potential for prejudice.

Rowe claims that Munye did not timely object to the use of CIVJIG 91.40 because he declined to submit alternative instructions to the court. But before the jury was instructed, Munye’s counsel challenged the use of CIVJIG 91.40 and requested that the district court instead give CIVJIG 163, the previous version of the relevant jury instruction, an appropriate instruction for apportioning damages. Munye properly preserved the issue for appeal.

Rowe alternatively argues that the CIVJIG 91.40 instruction did not result in prejudice because the jury’s fractional award of the requested damages indicates that it did apportion damages, separating damages resulting from the accident from those resulting from the pre-existing condition. The jury did award Rowe a smaller amount for medical expenses than the evidence indicated that she incurred, perhaps apportioning those expenses between her pre-existing condition and damages occurring as a result of the accident. The jury also awarded a smaller amount of damages than Rowe claimed as “directly caused by the accident” for past and future pain, disability, and emotional distress.

But we can not reasonably determine whether or how the jury applied the instruction. We do not know if the jury apportioned these damages between the accident and the pre-existing condition, or whether the jury simply determined that Rowe was not entitled to the full amount of damages she claimed as a result of the accident. Therefore, because we are unable to tell if the erroneous instruction influenced the jury in their determination of damages, a new trial is warranted. Lieberman, 264 Minn. at 242, 119 N.W.2d at 180. We note, however, that the instruction would not have affected the jury’s affirmative findings on permanent-injury and sixty-day-disability thresholds. For that reason, it is unnecessary to retry those issues, and retrial is limited to the amount of new damages that Rowe sustained in the accident together with damages for any aggravation of her pre-exist-ing condition over and above those which would normally follow from the pre-exist-ing condition, had there been no accident.

DECISION

The jury instruction for aggravation of personal damage provided in CIVJIG 91.40 which instructs the jury that “if you cannot separate damages caused by the pre-existing disability or medical condition from those caused by the accident, then defendant is liable for all the damages” misstates the law as it applies to apportionment of damages caused by a single at-fault defendant and those caused by a preexisting condition or disability. Because the district court erroneously instructed the jury using CIVJIG 91.40 and we cannot reasonably determine whether the erroneous instruction influenced the jury in their damages determination, we reverse and remand for a new trial.

Reversed and remanded.


author: WRIGHT, Judge. LANSING, Judge,

text:
    In re the Marriage of Sandra Jean KIELLEY, petitioner, Respondent, v. Donald R. KIELLEY, Appellant.
    No. A03-689.
    Court of Appeals of Minnesota.
    Feb. 17, 2004.

      Mary R. Vasaly, Justin H. Perl, Andre J. Lamere, Maslon, Edelman, Borman & Brand, Minneapolis, MN, for appellant.
    Scott R. Timm, Waconia, MN, for respondent.
    Considered and decided by TOUSSAINT, Chief Judge, Presiding; LANSING, Judge; and WRIGHT, Judge.
   OPINION

WRIGHT, Judge.

On appeal from the denial of his motion to suspend his maintenance obligation, appellant-husband argues that (1) the parties’ extrajudicial stipulation to modify spousal maintenance was enforceable and (2) the district court abused its discretion in denying the motion without making particularized findings or permitting the record to be supplemented. By notice of review, respondent-wife argues that the district court abused its discretion in denying her motion for attorney fees, declining to hold appellant in contempt for failing to pay spousal maintenance, and declining to compel discovery. We affirm in part, reverse in part, and remand.

FACTS

Appellant Donald Kielley and respondent Sandra Kielley dissolved their marriage on April 28, 1992. They had three minor children at the time of the dissolution. The parties stipulated to the entry of a judgment and decree, which imposed a gradually increasing spousal maintenance obligation on appellant through December 31, 2009. Appellant’s annual maintenance obligation comprised a lump-sum payment of $8,400 and 12 monthly payments. Appellant retained the right to move to modify maintenance, but agreed that changes in respondent’s income could not be used as a basis for modification. The judgment also awarded respondent physical custody of the parties’ minor children.

On the date of the dissolution, appellant was employed as the Chief Operating Officer of Wilson Learning Corporation, earning $8,004 per month, plus bonuses. In March 2000, appellant was demoted; he was later forced to resign, effective June 1, 2001. Between June 1, 2001 and May 30, 2002, appellant received, as severance pay, an amount equal to his annual gross salary, plus his minimum bonus payment.

On October 3, 2001, the parties entered a written stipulation purporting to modify the dissolution decree. The parties agreed to eliminate appellant’s $8,400 annual maintenance payment, to permanently reduce his monthly maintenance payments from $1,861.55 to $1,361.55, and to set his parenting time with the remaining minor child at 62 days per year. The stipulation stated that the parties had made these changes because of the death of their oldest son, appellant’s loss of employment, and respondent’s decision to move with the remaining minor child to Arizona in October 2001.

On November 18, 2002, appellant moved the district court to temporarily suspend spousal maintenance until he gained employment. In support of his motion, appellant submitted affidavits describing his loss of employment and the financial aspects of his separation from his former employer. Respondent then moved to have appellant held in contempt for not paying maintenance as required by the judgment. In her supporting affidavit, she claimed that appellant had “talked [her] into signing the [stipulation].”

At the hearing on appellant’s motion to suspend spousal maintenance, appellant’s counsel argued that relief should be granted based solely on the precipitous drop in his income, but offered to provide additional evidence, if necessary. Finding that the parties’ stipulation was void for lack of consideration, the district court denied appellant’s motion, and ordered him to pay respondent $62,915.20 — the difference between what he would have paid respondent under the judgment and what he actually paid her under the stipulation. By letter, appellant requested leave to file a motion for reconsideration, which the district court denied. This appeal followed.

ISSUES

I. Did the district court abuse its discretion in declining to enforce the parties’ extrajudicial attempt to modify spousal maintenance?

II. Did the district court abuse its discretion by denying appellant’s motion to suspend his spousal maintenance obligation?

III. Did the district court abuse its discretion by denying respondent’s motion for attorney fees?

IV. Did the district court abuse its discretion by denying respondent’s motion to find. appellant in contempt for failing to pay spousal maintenance as required by the judgment?

V. Did the district court abuse its discretion by declining to compel discovery?

ANALYSIS

I.

Appellant argues that the district court abused its discretion by declining to enforce the parties’ extrajudicial stipulation to modify his spousal maintenance obligation. Because appellant argues that the stipulation should be effective as of the date the parties entered it, he is essentially arguing.that the district court should have retroactively modified the judgment’s maintenance provision to conform to the stipulation. The district court has broad discretion in deciding whether to modify a spousal maintenance award. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn.1984). A district court abuses its discretion when its decision is “against logic and the facts on record.”" Prahl v. Prahl, 627 N.W.2d 698, 702 (Minn.App.2001) (quoting Rutten, 347 N.W.2d at 50).

The general requirements for retroactive modification of maintenance are set out in Minn.Stat. § 518.64, subd. 2(d) (2002). Regarding attempted extrajudicial modifications of an existing judgment, we have stated that “[ejxtrajudicial modifications of dissolution decrees without subsequent judicial approval are not valid[.]” Tell v. Tell, 359 N.W.2d 298, 301 (Minn.App.1984). On review, the Minnesota Supreme Court referred to this assertion, stating that it was both “contrary to th[e] encouraged policy” of resolving dissolution matters by stipulation and that the statement was “subject to misinterpretation.” Tell v. Tell, 383 N.W.2d 678, 682 n. 2 (Minn.1986). The supreme court later repeated its endorsement of resolving dissolution matters by stipulation. Shirk v. Shirk, 561 N.W.2d 519, 521-22 (Minn.1997). This endorsement of stipulated resolution of dissolution matters, however, is less enthusiastic and is given considerably less force in contexts where the stipulation in question may have an impact on a child. See, e.g., Frauenshuh v. Giese, 599 N.W.2d 153, 158-59 (Minn.1999) (custody modification); Moylan v. Moylan, 384 N.W.2d 859, 865 (Minn.1986) (child support); Geiger v. Geiger, 470 N.W.2d 704, 707 (Minn.App.1991) (presumption that physical custodian may remove a child from Minnesota), review denied (Minn. Aug. 1, 1991); see also Olson v. Olson, 534 N.W.2d 547, 549 (Minn.1995) (stating, in context of grandparent visitation dispute, that, “[a]s in all matters involving court-established family relationships of children, we begin with reference to our paramount commitment to the best interests of the children. We said a century ago, ‘[t]he cardinal principle in such matters is to regard the benefit of the infant as paramount * * * ’ and we have reiterated that premise in many recent cases.”) (quoting Flint v. Flint, 63 Minn. 187, 189, 65 N.W. 272, 273 (1895)).

To the extent that our opinions in Heldt v. Heldt, 394 N.W.2d 535 (Minn.App.1986),

Diedrich v. Diedrich, 424 N.W.2d 580 (Minn.App.1988) and Christenson v. Christenson, 490 N.W.2d 447 (Minn.App.1992), review granted (Minn. Jan. 15, 1993), appeal dismissed (Minn. Feb. 16, 1993), are read as contrary to the general rule favoring dissolution stipulations because they include statements that extrajudicial modifications of dissolution judgments are unenforceable until they have been approved by a court, we reject such a broad reading of those cases. Heldt affirmed a district court’s determination that an extrajudicial agreement involving child support was not enforceable. Heldt, 394 N.W.2d at 535. Diedrich did not involve minor children, distinguished between stipulations that could affect children and those that do not, and affirmed a district court’s decision that

an extrajudicial modification of a judgment’s maintenance provision was effective before it was adopted by the court, at least to preserve the district court’s jurisdiction over the maintenance issue. Diedrich, 424 N.W.2d at 583. And Christenson predates the Minnesota Supreme Court’s statements in Shirk that, once a husband and wife enter a dissolution stipulation, they are bound by that stipulation absent consent of the other party or leave of the court to withdraw from it. Shirk, 561 N.W.2d at 521-22; see Toughill v. Toughill, 609 N.W.2d 634, 639 & n. 1. (Minn.App.2000) (applying Shirk). Here, the parties’ stipulation involved both appellant’s maintenance obligation and his parenting time. Therefore, while Heldt and Diedrich may suggest according a limited amount of deference to the parties’ stipulation because it could affect the child, neither Heldt, Diedrich, nor Christenson warrants the conclusion that the unconfirmed nature of the stipulation is independently fatal to its enforceability.

Dissolution-related stipulations are treated as contracts. Shirk, 561 N.W.2d at 521. The district court is “a third party to dissolution actions” and, as a third party, has “dut[ies] to protect the interests of both parties” and “to ensure that the stipulation is fair and reasonable to all.” Karon v. Karon, 435 N.W.2d 501, 503 (Minn.1989). Thus, because dissolution stipulations are treated as contracts and because the district court must ensure that dissolution stipulations are fair, a dissolution stipulation must be both contractually sound and otherwise fair and reasonable.

Here, the parties’ stipulation stated that the maintenance modification was because of the death of the parties’ oldest son, appellant’s loss of employment, and respondent’s decision to move, with the remaining minor child, to Arizona in October 2001. While the judgment provided for gradually increasing maintenance payments through December 31, 2009, the stipulation fixed appellant’s monthly maintenance obligation at $1,361.55, effective October 2001 to December 31, 2005, The stipulation also eliminated appellant’s $8,400 annual maintenance payment retroactively to July 30, 1999, and set appellant’s parenting time with the remaining minor child at 62 days each year, “effective with the date of [respondent’s] planned move to Arizona.” Notwithstanding that the question of consideration was not raised or argued by the parties, the district court held that the stipulation was contractually defective for lack of consideration because respondent did not receive a benefit in exchange for the reduction in maintenance.

Whether a stipulation is supported by consideration is a legal question, which we review de novo. Concordia Coll. Corp. v. Salvation Army, 470 N.W.2d 542, 546 (Minn.App.1991), review denied (Minn. Aug. 2, 1991). “Consideration may consist of either a benefit accruing to a party or a detriment suffered by another party.” C & D Invs. v. Beaudoin, 364 N.W.2d 850, 853 (Minn.App.1985), review denied (Minn. June 14, 1985). The amount of consideration is not relevant as long as some benefit or detriment is established. Estrada v. Hanson, 215 Minn. 353, 356, 10 N.W.2d 223, 225-26 (1943).

Here, without considering that the adequacy of consideration was not raised in district court, we note that the record suggests that, when the parties’ entered their stipulation, at least a reasonable case for modifying appellant’s maintenance obligation existed. The maintenance-related portion of the stipulation eliminated the uncertainty of the result inherent in litigating modification of maintenance as well as the certainty of incurring the considerable attorney fees and other costs associated with doing so. Additionally, effective with the move of respondent and the child to Arizona, the stipulation addressed appellant’s parenting time, as well as the potentially significant inter-state transportation costs associated with exercising his parenting time, costs for which respondent might have been partially liable. Cf. Auge v. Auge, 334 N.W.2d 393, 400 (Minn.1983) (noting district court may apportion visitation costs after physical custodian removes child from Minnesota). Where promises are mutual, made concurrently, and incorporated into a bilateral contract, such promises are sufficient consideration for each other. Koehler & Hinrichs Mercantile Co. v. Ill. Glass Co., 143 Minn. 344, 346, 173 N.W. 703, 704 (1919). Moreover, we do not examine the adequacy of consideration as long as something of value has passed between the parties. Beaudoin, 364 N.W.2d at 853. We, therefore, conclude that the district court erred in ruling that the parties’ stipulation was contractually defective for lack of consideration. That the requirements for contractual consideration are satisfied, however, does not necessarily establish that the stipulation in question is fair and reasonable.

Because the district court ruled that the parties’ stipulation was contractually defective, it did not address whether the stipulation was otherwise fair and reasonable. Thus, we remand for the district court to do so. When evaluating whether an extrajudicial modification of maintenance is fair and reasonable, the district court should consider and make findings addressing all relevant factors. We note that Minnesota law permits parties to a dissolution to

expressly preclude or limit modification of maintenance through a stipulation, if the court makes specific findings that the stipulation is fair and equitable, is supported by consideration described in the findings, and that full disclosure of each party’s financial circumstances has occurred. The stipulation must be made a part of the judgment and decree.

Minn.Stat. 518.552, subd. 5 (2002). While this provision is explicitly limited to stipulations that preclude or limit the ability to modify maintenance, we are persuaded that some analogous concerns are relevant to determining whether extrajudicial stipulations that actually modify maintenance are “fair and reasonable to all.” Karon, 435 N.W.2d at 503. Relevant factors would include whether the stipulated maintenance obligation is unfair and unreasonable:

1. To children because it will, directly or indirectly, have an adverse impact on them, either by being of such an amount that it will unnecessarily interfere with a child-support obligation, or for other reasons. See Sydnes v. Sydnes, 388 N.W.2d 3, 7 (Minn.App.1986) (stating “[p]arties cannot enter into a stipulation which might not be in the best interests of the child”); cf. LeTendre v. LeTendre, 388 N.W.2d 412, 416 (Minn.App.1986) (noting “nonbargainable” nature of child’s interest in support and that support is “less subject to restraint by stipulation” than other dissolution questions).

2. To one of the parties because of overreaching, lack of full disclosure of the relevant information, lack of an opportunity to consult with counsel, or for some other reason. See Minn.Stat. § 518.552, subd. 5; Karon, 435 N.W.2d at 503 (noting district court, as a third party to dissolution actions, “has a duty to protect the interests of both parties”); Doering v. Doering, 629 N.W.2d 124, 132 (Minn.App.2001) (discussing affirmative duty to disclose information that is present for parties to dissolution proceedings), review denied (Minn. Sept. 11, 2001).

3. To the state because the stipulated maintenance obligation is in an amount that will unnecessarily require either or both parties, or their children, to seek public assistance. See Karon, 435 N.W.2d at 503 (noting district court “stands in place and on behalf of [the state] as a third party ... [and] has a duty to protect the interests of ... all the citizens of the state to ensure that the stipulation is fair and reasonable to all”).

4. To the court because the stipulation will unnecessarily complicate future court proceedings because the parties’ incomes and expenses are not adequately addressed, their rights and duties under the stipulation are not reasonably clear, or other reasons. See Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn.1997) (noting, in the context of stipulated maintenance, that the stipulation identifies the “baseline circumstances” against which claims of changed circumstances are evaluated).

In evaluating whether the stipulation is fair and reasonable, we also note that the district court may accept or reject the terms of a stipulation “in part or in toto.” Karon, 435 N.W.2d at 503 (emphasis in original). Additionally, “while a district court may reject all or part of a stipulation, generally, it cannot, by judicial fíat, impose conditions on the parties to which they did not stipulate and thereby deprive the parties of their ‘day in court.’ ” Toughill, 609 N.W.2d at 638 n. 1. Whether to reopen the record on this question rests within the discretion of the district court.

II.

In denying appellant’s motion to suspend his maintenance obligation prospectively, the district court held that appellant “failed to carry his burden of proof establishing that the existing maintenance order is unreasonable and unfair[.]” Appellant argues that the district court abused its discretion because there was- a sufficient evidentiary basis for modification of maintenance.

The district court has broad discretion in modifying spousal maintenance. Rutten, 347 N.W.2d at 50. Spousal maintenance may be modified if the moving party shows both a substantial change in circumstances and that the change in circumstances makes the original award unreasonable and unfair. Minn.Stat. 518.64, subd. 2(a) (2002); Hecker, 568 N.W.2d at 709; see Wiese v. Wiese, 295 N.W.2d 371, 372 (Minn.1980) (observing that a modification under Minn.Stat. 518.64, requires a showing of “a substantial change of circumstances from those existing at the time of the dissolution or ... at the time the award was last modified”).' “Unreasonable and unfair” are “strong terms which place upon the claimant a burden of proof more than cursory.” Giencke v. Haglund, 364 N.W.2d 433, 436 (Minn.App.1985).

In support of his motion for modification, appellant submitted an affidavit describing his loss of employment and a separation agreement from his former employer. Appellant also testified that his income decreased from $250,000 to about $22,000 a year. While this undoubtedly constitutes a substantial change in appellant’s income, and while we are aware that the stipulated judgment states that respondent’s income is not a basis for modifying maintenance, we note that appellant presented virtually no evidence regarding other aspects of the parties’ financial conditions. Rather, he argued that his loss of employment alone was sufficient to justify modification. The district court disagreed, noting that, “absent any information on the parties’ overall financial pictures, the court is unable to determine whether the existing order is unreasonable or unfair.” On this record, we agree with the district court’s conclusion that it lacked sufficient evidence to order modification. Dean v. Pelton, 437 N.W.2d 762, 764 (Minn.App.1989) (noting that “[s]ince it could not determine the parties’ living expenses at the time of dissolution, the trial court had insufficient information to determine whether the needs of the parties had substantially increased or decreased making the terms of the original support order unfair”). Thus, we conclude that the district court did not abuse its discretion by ruling that appellant failed to show that the existing maintenance order is unreasonable and unfair.

III.

By notice of review, respondent argues that the district court abused its discretion in failing to address her request for need-based attorney fees. The decision to award attorney fees rests almost entirely within the discretion of the district court. Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn.App.1998), review denied (Feb. 18, 1999); Zagar v. Zagar, 396 N.W.2d 98, 102 (Minn.App.1986). An award of need-based attorney fees is appropriate if the fees were incurred in a good faith assertion of rights, the payor has the ability to pay the fees, and the recipient does not. Minn.Stat. § 518.14, subd. 1 (2002). Here, however, the district court noted that respondent provided “no information about her employment now or since the divorce, her income, her assets, her health, [or] her ability to work[.]” In the absence of an adequate basis to award need-based attorney fees, the district court did not abuse its discretion by refusing to award those fees.

IY.

Respondent also contends that the district court should have held appellant in contempt for failing to pay his maintenance obligation. The district court has broad discretion in determining whether to invoke its contempt powers. See Mower County Human Servs. v. Swancutt, 551 N.W.2d 219, 222 (Minn.1996). We will reverse the district courts decision only when it constitutes an abuse of discretion. Id. The district court reasoned that it “assumes that with the denial of this motion [appellant] will once again resume payments” and deferred the motion mth-out prejudice for reconsideration upon request. On the record before us, we conclude that the district court’s decision was well within its sound discretion.

V.

Finally, respondent argues that the district court abused its discretion in declining to compel discovery. The district court has “wide discretion” regarding discovery and, absent an abuse of that discretion, its discovery decision will not be altered on appeal. Shetka v. Kueppers, Kueppers, Von Feldt Salmen, 454 N.W.2d 916, 921 (Minn.1990). Respondent sought to compel appellant to respond to her discovery requests for disclosure of appellant’s income producing assets. While the district court did not explicitly rule on respondent’s discovery motion, by denying appellant’s motion to modify, maintenance, it denied appellant’s motion to compel discovery. By affirming that ruling, we have rendered respondent’s discovery request unnecessary.

DECISION

The district court erred in concluding that the parties’ stipulation was contractually defective for lack of consideration. Because the district court did not address whether the parties’ stipulation was fair and reasonable, we remand. The district court did not abuse its discretion in determining that there was insufficient evidence to grant respondent’s motion to modify maintenance nor in declining to award attorney fees, find appellant in contempt,, or compel discovery.

Affirmed in part, reversed in part, and remanded.

LANSING, Judge,

(concurring in part, dissenting in part).

I concur in the majority’s determination that the three issues raised by the notice of review should be affirmed. The district court properly denied the motion for contempt, the request for attorneys’ fees, and the motion to compel discovery. The motion for contempt was procedurally defective, the request for attorneys’ fees was factually unsupported, and the motion to compel discovery was waived.

I also concur in the majority’s determination that the district court erred in concluding that the Kielleys’ agreement to modify spousal maintenance was contractually defective for lack of consideration. The district court has too narrowly defined consideration and has overlooked forbearance of litigation as adequate consideration for an agreement. See Cady v. Coleman, 315 N.W.2d 593, 596 (Minn.1982) (equating forbearance to consideration); State v. Hart Motor Express, 270 Minn. 24, 29, 132 N.W.2d 391, 394 (Minn.1964).(holding that forbearance of legal action is adequate consideration for agreement).

I respectfully dissent, however, from the majority’s decision to impose a formal mul-tifactor test on postdecree modification agreements. These agreements are not the same as the private agreements that expressly preclude or limit modification of maintenance under Minn.Stat. § 518.552, subd. 5 (2002), and the same degree of formality should not attend them. As the district court observed, there is good reason to avoid precedent that requires parties to a dissolution “every time they want to make some change, [to] have to come back into court and execute waivers of counsel and put something on the record ... they have to make life work.”

Finally, I dissent from the majority’s declining to reverse and remand on the issue of spousal-maintenance modification. The district court failed to make particularized findings on the reasons for denying the modification and precluded a determination on the merits by denying an eviden-tiary hearing or an opportunity to supplement the record. I would reverse and remand on this issue.

      . Although a child of the husband and wife who are dissolving their marriage generally is not a party to the dissolution, the nature of a dissolution allows the child to be bound by the parts of the dissolution judgment that, stipulated or not, resolve the child-related aspects of the dissolution. This atypical result of binding a nonparty weighs heavily in favor of the limitation on deference accorded stipulations that may affect children, as does the fact that the district court, during a child’s minority, retains jurisdiction to modify the child-related aspects of a dissolution judgment.

      . Appellant also contends that the district court was required to make particularized findings pursuant to Minn.Stat. § 518.552 (2002). This argument ignores the district court’s determination that, because the record lacked evidence of the parties’ financial circumstances other than appellant’s income, it could not apply the statutory factors to determine whether the parties’ existing maintenance award was unreasonable or unfair. While it is true that, absent a change in circumstances, findings on the other maintenance factors are not needed in a maintenance modification proceeding, it is also true that a party cannot complain about the denial of a motion where the reason for the denial was the party’s failure to submit the evidence necessary to address the motion. Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn.App.1987).