author: GORDON W. SHUMAKER, Judge.

text:
    STATE of Minnesota, Respondent, v. Elliot Kamalani DOREN, Appellant.
    No. C6-02-58.
    Court of Appeals of Minnesota.
    Dec. 17, 2002.

      Mike Hatch, Attorney General, and Susan Gaertner, Ramsey County Attorney, Philip C. Carruthers, Assistant Ramsey County Attorney, St. Paul, MN, for respondent.
    John M. Stuart, State Public Defender, Suzanne M. Senecal-Hill, Special Assistant State Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by SHUMAKER, Presiding Judge, SCHUMACHER, Judge, and KLAPHAKE, Judge.
   OPINION

GORDON W. SHUMAKER, Judge.

Appellant Elliot Doren contests the district court’s pretrial order denying his motion to suppress evidence discovered during a traffic stop by a police officer while searching Doren, a passenger. Doren contends that the officer improperly extended the duration of the stop, had no basis for conducting two searches, and lacked a valid reason for having Doren sit in the officer’s squad car during a warrants check. Because we conclude that the district court did not err in denying Doren’s suppression motion, we affirm.

FACTS

At about 1:15 in the morning of March 15, 2001, St. Paul police officer Soren Ma-howald watched a car make two turns without signaling. Mahowald stopped the car, approached the driver’s door, and asked the driver, Jason Olson, for his license and proof of insurance. Sitting in the front passenger seat was appellant Elliot Doren.

As Mahowald spoke with Doren, he could smell an odor of burned marijuana coming from inside the car. Mahowald also noticed that Doren’s feet, arms, and hands were moving constantly, that his eyes were darting back and forth, and that he was eating a sandwich faster than Ma-howald had ever seen one eaten before. The officer concluded that Doren’s actions were “above and beyond the normal nervousness” he was accustomed to seeing during police stops.

When Mahowald discovered that Olson’s license had been revoked, that Olson had no proof of insurance, and that the car was registered to a female whose address was in another city, Mahowald arrested Olson and placed him in the squad car. Mahow-ald then requested police backup.

During this time, Doren remained in the car. Mahowald went to the car and asked Doren for identification. After Doren produced identification, the officer asked him to step out of the car. As Doren stepped out of the car, the officer could tell that the burned marijuana odor was coming directly from him. Based on the odor, Doren’s constant movements, and extraordinary nervousness, Mahowald concluded that Doren was under the influence of a controlled substance. When backup-officer Jeffrey Kane arrived, he also concluded that Doren was under the influence, based on Doren’s “rock star behavior” and “he looked whipped out.”

While Doren was standing outside the car, Mahowald asked Mm if he had any outstanding warrants for his arrest. Doren hesitated and then replied, “Ah, no.” Then Mahowald asked him if he had any weapons, and he responded, “God, no.” Mahowald asked Doren if he could pat him down for weapons and Doren consented. Mahowald frisked Doren and found nothing.

Doren’s unusual behavior, the odor of burned marijuana, and his hesitation in answering the warrants question prompted Mahowald to investigate further. In Ma-howald’s police experience, persons who do have outstanding warrants sometimes hesitate before responding to an inquiry about warrants.

Mahowald escorted Doren to Kane’s squad car and told him to sit in the back while he checked for warrants. He told Doren that if there were no warrants, Doren could leave.

As Doren began to enter the squad car, he brushed against Mahowald. The officer felt a hard, bulging object on Doren’s hip. Kane also noticed the bulge. Mahowald asked Doren what the object was but Doren declined to answer. Mahowald testified that when he lifted Doren’s jacket to expose the object he smelled strong odors of both burned and unburned marijuana coming from Doren. The officer saw a black pouch on Doren’s hip and believed it might contain a weapon. When he opened the pouch, Mahowald found drug paraphernalia, marijuana, and a vial of a substance later determined to be methamphetamine. Mahowald arrested Doren.

After the state charged Doren with controlled substance crimes, he moved to suppress the evidence found in the pouch. The district court concluded that the police obtained evidence during a lawful protective search to ensure the officer’s safety. The court denied the motion. Doren appeals.

ISSUES

1. Did the officer impermissibly prolong a traffic stop by asking appellant, a passenger, to get out of the impounded car?

2. Was the officer entitled to ask appellant about weapons and warrants, to frisk the him, and to ask him to sit in the squad car while he checked for warrants?

3. Did the officer improperly search appellant?

ANALYSIS

Doren does not dispute the validity of the stop of the car in which he was riding as a passenger. Rather, he contends that, once the police arrested the driver, the purpose of the stop had ended and that it was improper for the officer to extend the duration of the stop by ordering Doren out of the car, asking him about weapons and warrants, searching him, and requiring him to sit in the squad car.

When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing — or not suppressing — the evidence.

State v. Harris, 590 N.W.2d 90, 98 (Minn.1999) (citation omitted). We review the district court’s findings of fact to determine whether they are clearly erroneous. State v. George, 557 N.W.2d 575, 578 (Minn.1997). We defer to the trier of fact on credibility assessments and reverse only if the trier has committed clear error. See State v. Dickerson, 481 N.W.2d 840, 843 (Minn.1992) (trial court’s findings not reversed unless clearly erroneous, and great deference given to court’s determinations regarding credibility of witnesses), aff'd, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334.

Duration of the Stop

“[T]he detention of [a] person stopped may not continue indefinitely but only as long as reasonably necessary to effectuate the purpose of the stop.” State v. Blacksten, 507 N.W.2d 842, 846 (Minn.1993) (citation omitted). Once the original suspicion that justified the stop has been dispelled, the officer may not continue to detain a person unless there exists additional reasonable suspicion. State v. Lopez, 631 N.W.2d 810, 813-14 (Minn.App.2001), review denied (Minn. Sept. 25, 2001).

Doren argues that the reason for the stop was Olson’s driving conduct and once the officer dealt with that matter, by ultimately arresting Olson, the purpose of the stop had been accomplished and that it was unlawful for the officer to detain Doren. Relying on Maryland v. Wilson, 519 U.S. 408, 411, 117 S.Ct. 882, 884-85, 137 L.Ed.2d 41 (1997), Doren argues that pending the completion of a stop, an officer cannot order a passenger out of the stopped vehicle unless there is evidence that the officer has a safety concern. Doren urges that there is no evidence that Mahowald was concerned for his safety while Doren remained in the car. Doren also cites Wilson for the proposition that the key analysis under the Fourth Amendment is the reasonableness of the government’s invasion of a person’s security.

Certainly, a paramount consideration under the Fourth Amendment is the reasonableness of the government’s intrusion upon a person’s liberty. Arguably, ordering a passenger out of a stopped motor vehicle infringes to some degree on the passenger’s liberty to be left where he is. But officer safety is only one reason that will justify such an order. Another reason, the one that applies here, is that the car was going to be impounded and towed. Because the illegal driver was in custody, the car did not belong to the driver or to Doren, and there was no evidence that the owner of the car consented to Doren having possession of it, Dohen had no right to remain in the impounded car. The simple act of the officer requesting Doren to step out of an impounded car did not unreasonably extend the duration of the stop.

Although the original purpose of the stop had been accomplished, Mahowald acquired additional reasonable suspicion during the stop. Doren’s extraordinary nervousness, the odor of burned marijuana coming from an area Doren occupied, and the appearance that Doren was under the influence of a controlled substance, provided the officer with a reasonable articulable suspicion that Doren was in possession of marijuana and allowed the officer to inquire further. See Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968) (a police officer who has a reasonable suspicion that criminal activity may be taking place may perform an investigative stop of the individual who is the object of the suspicion).

Doren argues that the marijuana odor at this point was of burned marijuana and it is not illegal to smoke marijuana. But an officer reasonably might suspect that not all of the marijuana had been consumed and that some of it remained for later use.

The odor of burned marijuana inside a stopped motor vehicle provides probable cause for the search of the vehicle’s occupants. State v. Wicklund, 295 Minn. 403, 405, 205 N.W.2d 509, 511 (1973). In Wicklund, the officer believed that one of the occupants in a car was in violation of curfew law. The officer stopped the car, and when the driver rolled down his window the officer smelled the odor of burned marijuana coming from inside the car. The supreme court held that the odor gave the officer probable cause to search the car’s occupants.

Under Terry and Wicklund, we hold that Officer Mahowald had a proper and necessary reason to order Doren out of the car and to inquire further. The officer did not impermissibly extend the duration of the stop.

The Questions, Frisk, and Warrants Check

Doren argues that it was impermissible for Mahowald to ask him questions. Under Terry, the officer had a reasonable basis for “stopping” Doren, and that permitted the officer to make an investigative inquiry.

One of the questions the officer asked was whether Doren had any weapons. When Doren replied, “God, no,” the officer asked if Doren minded if the officer patted him down for weapons. Doren said, “No, go ahead and check if you want to.” Ma-howald frisked Doren and found nothing.

The district court found that Doren consented to the frisk. Doren contends that he did not voluntarily agree to the pat-down but rather submitted to police authority. “[A]n officer has a right to ask to search and an individual has a right to say no.” State v. Dezso, 512 N.W.2d 877, 880 (Minn.1994). Any consent to a search must be voluntary. Id. Mere acquiescence or the failure to object is not tantamount to voluntariness. Id. Consent may not be coerced but courts are not to infer involuntariness “simply because the circumstances of the encounter are uncomfortable for the person being questioned.” Id. But when an encounter becomes coercive, when consent is extracted rather than received, the consent is not voluntary. Id. Voluntariness is a question of fact that depends on the totality of the circumstances. Id. The issue is whether a reasonable person in such circumstances would have felt free to decline a request to search. Id.

Doren points to circumstances that he interprets as coercive: the arrest of his driver, the flashing patrol-car lights, the presence of two officers, and the offi-eer’s order that Doren get out of the car. But in the initial encounter between Ma-howald and Doren, Mahowald only asked once if Doren had any weapons and then asked once if Doren minded if the officer patted him down. There is no evidence that the officer used an intimidating tone of voice, or drew his gun, or made threats, or engaged in subterfuge to extract Doren’s consent. Up until this time, the entire focus had been on Olson, and Doren was left alone in the car.

Because Doren had not driven the car, and because the officer showed no sign whatsoever that he suspected Doren of any wrongdoing or that he was about to arrest Doren, Doren reasonably could not have felt coerced into giving his consent to the frisk. The mere presence of two officers and a simple request for permission to conduct a pat-down frisk do not constitute coercion. The district court did not err in finding Doren’s consent to the frisk voluntary.

But even if the district court did err in finding voluntary consent, we return to the authority in Wicklund. Having smelled burned marijuana in the car Doren was occupying, the officer had probable cause to search Doren.

Mahowald’s other question was whether Doren had any outstanding arrest warrants. Mahowald already had a reasonable basis for suspecting that Doren was in possession of a controlled substance. As Doren admitted at the suppression hearing, he was high on drugs during the stop. The marijuana odor was traceable specifically to him. His nervousness was out of proportion to the anxiety a passenger in a stopped vehicle might be expected to show. Doren’s hesitation in answering the question about warrants heightened Mahowald’s suspicion. As the district court concluded, Mahowald now had two bases for reasonable suspicions. First, that Doren was likely in possession of a controlled substance and, second, that he was a fugitive. Mahowald could lawfully continue to detain Doren while he dispelled the suspicion about the warrants. See State v. Johnson, 645 N.W.2d 505, 510 (Minn.App.2002).

Doren contends that the officer had no proper reason to ask him to sit in the squad car. With facts supporting the possibility that Doren was a fugitive, it was reasonable for the officer to restrict his ability to flee while the officer checked on warrants. See State v. Bell, 557 N.W.2d 603, 606 (Minn.App.1996) (holding that it is permissible to detain a driver stopped for speeding by putting him into the squad car while the officer checks driver and police records), review denied (Minn. Mar. 18, 1997).

The Second Frisk

Mahowald did not attempt a second frisk until Doren brushed up against him and he felt a hard object under Doren’s jacket at his hip. Both Mahowald and Kane noticed a bulge at Doren’s hip, and Mahowald believed it might be a weapon. However, before frisking Doren, Mahow-ald asked what the hard object was. When Doren refused to respond, Mahow-ald frisked him again and found on his hip a black pouch that contained drugs and drug paraphernalia. The second frisk was clearly justified under Terry as a proper protective search.

DECISION

The district court did not err in concluding that the police properly detained and searched appellant and in denying appellant’s motion to suppress evidence found in the search.

Affirmed.


source: Caselaw Access Project

author: HALBROOKS, Judge.

license: Public Domain

text:
    Stephen M. SCHNEIDER, by his Guardian Ad Litem, Patricia M. SCHNEIDER, Appellant, v. Jake ERICKSON, Respondent, Wal-Mart Stores, Inc., Defendant.
    No. C7-02-800.
    Court of Appeals of Minnesota.
    Dec. 17, 2002.

      Robert J. Feigh, Hall & Byers, P.A., St. Cloud, MN, for appellant.
    Michael J. Tomsche, Bryan B. Carroll, Tomsche, Sonnesyn & Tomsche, P.A., Golden Valley, MN, for respondent.
    Considered and decided by STONEBURNER, Presiding Judge, KALITOWSKI, Judge, and HALBROOKS, Judge.
   OPINION

HALBROOKS, Judge.

On appeal from summary judgment dismissing his negligence claim, appellant argues that the district court erred by (1) ruling that appellant primarily assumed the risk of being hit in the eye with a paintball when he played paintball without eye protection, and (2) granting summary judgment when genuine issues of material fact remain. Because we conclude that appellant primarily assumed the risk of being hit in the eye with a paintball by playing paintball without eye protection and that no genuine issues of material fact remain for trial, we affirm.

PACTS

On October 6, 2000, appellant Stephen Schneider, age 17, respondent Jake Erickson, age 16, and Mark Skaalerud, age 16, decided to play their own version of the game of paintball. In preparation for their game, they went to a Wal-Mart store and purchased a paintball gun for appellant and paintballs and carbon-dioxide cartridges for the three of them to share. Appellant and the other boys knew that the local stores had policies prohibiting sales of paintball equipment to anyone under 18. They chose a specific cashier in a specific store whom they believed would be less likely to check identification, and they succeeded in purchasing a paintball gun and supplies.

Appellant had seen paintball played on television, and he was aware that players on television always wore head and eye protection. Appellant testified that he had seen language in advertisements for paintball equipment warning that eye protection was required at all times while playing paintball. He also testified that his parents told him that he could not purchase a paintball gun because they looked dangerous. Before buying the paintball gun, appellant knew in general that the guns could cause serious injury, that getting hit in the eye with a paintball could cause an eye injury, and that people using paintball guns should wear eye protection.

Appellant and his friends played the paintball game on the 60-80 acres of land on which appellant’s parents’ house is located. Before the game started, appellant got three motocross-type helmets and three sets of ski goggles from his parents’ garage. The three players agreed on a few ground rules. They agreed that there would be no shots to the head or groin and that, if a person ran out of paintballs and notified the others that he was out of paintballs, he would not be shot.

Appellant, respondent, and Skaalerud started their game of paintball between 5:00 and 6:00 p.m. All three wore helmets and goggles. At about 6:45 p.m. they took a break. During the break, appellant and Skaalerud took off their eye protection because it was starting to get dark and more difficult to see. Respondent was aware that appellant and Skaalerud had taken off their eye protection. After the break, all three continued shooting paint-balls at each other. At one point, respondent and appellant were about 20-50 feet apart, separated by some small trees, shooting paintballs at each other. Appellant shot and hit respondent, stopped to reload his gun, and was then hit in the left eye by a paintball shot by respondent. As a result of respondent’s errant shot, appellant sustained a permanent injury to his left eye.

Respondent testified that he was not aiming for appellant’s head, but was aiming at his shoulder and chest. Appellant testified that he knew that respondent was going to shoot at him and that respondent did not appear to be aiming for his head. Appellant stated that, if he thought respondent was aiming for his head, he would have said something.

Appellant testified that the paintball guns were “pretty accurate” from 20-30 feet, but that there were times when he missed his target. He also acknowledged that, even though they had the rule prohibiting head-shots, from a distance of 30 feet it was possible that someone could accidentally get hit in the head. Additionally, appellant acknowledged that when the carbon-dioxide cartridge that powers the paintball gun is not fresh, the paintball gun may not be as accurate. Skaalerud testified that at one point prior to appellant’s injury, he accidentally shot' respondent in the head. Respondent testified that he was hit in the head several times during the game. Each player was hit with a paintball approximately 15-20 times.

Appellant brought this personal-injury action against respondent and Wal-Mart, claiming that respondent negligently and recklessly shot him in the eye with a paintball and that Wal-Mart negligently, and in violation of its own store policy, sold paintball equipment to minors. Respondent and Wal-Mart moved for summary judgment. The district court denied Wal-Mart’s motion, but granted respondent’s motion for summary judgment based on the theory of primary assumption of the risk. This appeal follows.

ISSUES

1. Did the district court correctly conclude as a matter of law that appellant assumed the risk of being shot in the eye with a paintball when he played paintball without eye protection?

2. Are there genuine issues of material fact regarding whether appellant assumed the risk of being shot in the eye with a paintball when he played paintball without eye protection?

ANALYSIS

I.

Appellant argues that the district court erred by concluding as a matter of law that appellant assumed the risk of being shot in the eye with a paintball when he played paintball without eye protection. On an appeal from summary judgment, we ask whether there are any genuine issues of material fact and whether the district court erred in its application of the law. DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997).

Minnesota law recognizes two types of assumption of the risk. Swagger v. City of Crystal, 379 N.W.2d 183, 184-85 (Minn.App.1985), review denied (Minn. Feb. 19, 1986). Secondary assumption of the risk is a form of contributory negligence. Snilsberg v. Lake Washington Club, 614 N.W.2d 738, 743 (Minn.App.2000), review denied (Minn. Oct. 17, 2000). It applies when the defendant

has created a hazard that is known, appreciated, and voluntarily encountered by the plaintiff, but the defendant is not relieved of his duty of care with respect to the hazard.

Id. Secondary assumption of the risk does not act as a complete bar to a plaintiffs recovery. Springrose v. Willmore, 292 Minn. 23, 24-25, 192 N.W.2d 826, 827 (1971). Instead, the relative fault of the plaintiff and defendant is apportioned under the comparative-negligence statute. Id.

By contrast, primary assumption of the risk acts as a complete bar to a plaintiffs recovery. Armstrong v. Mailand, 284 N.W.2d 343, 348 (Minn.1979). Primary assumption of the risk applies when a party voluntarily enters into a relationship in which the plaintiff assumes well-known, incidental risks. Olson v. Hansen, 299 Minn. 39, 44, 216 N.W.2d 124, 127 (1974). As to those risks, the defendant has no duty to protect the plaintiff. Id. Thus, if the plaintiffs injury arises from those risks, the defendant is not negligent. Id. “Primary assumption of the risk defines the limits of a defendant’s duty to the plaintiff.” Andren v. White-Rodgers Co., 465 N.W.2d 102, 105 (Minn.App.1991), (citing Armstrong, 284 N.W.2d at 351), review denied (Minn. Mar. 27, 1991). By voluntarily entering into a situation where there are well-known, incidental risks, the plaintiff consents to look out for himself and relieve the defendant of his duty. Id. Whether a party has primarily assumed the risk is usually a question for the jury, unless the evidence is conclusive. Hollinbeck v. Downey, 261 Minn. 481, 486, 113 N.W.2d 9, 13 (1962); Andren, 465 N.W.2d at 105.

In Minnesota, as in other states, the assumption-of-the-risk doctrine first developed in the master/servant context to protect employers and to give maximum freedom to industrial development. See Tiller v. Atlantic Coast Line R.R., 318 U.S. 54, 58-9, 63 S.Ct. 444, 447, 87 L.Ed. 610 (1943) (stating that assumption of risk first developed in the United States to protect employers); Geis v. Hodgman, 255 Minn. 1, 4-5, 95 N.W.2d 311, 313-15 (1959) (applying assumption of risk in master/servant context).

The distinct concept of primary assumption of the risk, which results in a complete bar of a plaintiffs claim, is a more recent development, and it is what remains of the original assumption-of-the-risk doctrine that has not been swallowed up by the principle of secondary assumption of the risk, comparative-negligence statutes, or workers’ compensation laws. In Spring-rose, the Minnesota Supreme Court reaffirmed the existence of primary assumption of the risk as a valid principle in Minnesota, and an absolute bar to a plaintiffs recovery. 292 Minn. at 24, 192 N.W.2d at 827; see also Mailand, 284 N.W.2d at 348-49 (stating that in Spring-rose, the supreme court held that “primary assumption of the risk remains as an absolute bar to the plaintiffs recovery”). But, Minnesota courts rarely apply primary assumption of the risk, and have found that its application is only appropriate under limited circumstances. See, e.g., Mailand, 284 N.W.2d at 350 (holding that landowners owe firefighters a duty of care, but that firefighters primarily assume all risks reasonably apparent to them that are a part of firefighting); Sandstrom v. AAD Temple Bldg. Ass’n, 267 Minn. 407, 411, 127 N.W.2d 173, 176 (1964) (holding that a “licensee primarily assumes the risk of defective conditions on property unknown to the possessor”). Minnesota courts commonly apply primary assumption of the risk in the context of spectators at sporting events. See, e.g., Grisim v. TapeMark Charity Pro-Am Golf Tournament, 415 N.W.2d 874, 876 (Minn.1987) (holding that spectator at golf tournament primarily assumed risk of being hit with golf ball); Modec v. City of Eveleth, 224 Minn. 556, 564, 29 N.W.2d 453, 457 (1947) (holding that spectator at hockey game assumed risk of being hit with puck); Brisson v. Minneapolis Baseball & Athletic Ass’n, 185 Minn. 507, 510, 240 N.W. 903, 904 (1932) (holding that spectator at baseball game assumed the risk of being hit by foul ball); Jussila v. U.S. Snowmobile Ass’n, 556 N.W.2d 234, 237-38 (Minn.App.1996) (holding that spectator at snowmobile race primarily assumed risk of being hit by a snowmobile), review denied (Minn. Jan. 29, 1997); Swagger, 379 N.W.2d at 186 (holding that spectator at softball game primarily assumed risk of being hit by a softball).

The basic elements of primary and secondary assumption of the risk are the same and include whether the plaintiff had (a) knowledge of the risk, (b) an appreciation of the risk, and (c) a choice to avoid the risk but voluntarily chose to take it. Andren, 465 N.W.2d at 104-05. To show that appellant primarily assumed the risk, respondent must demonstrate that respondent owed a duty of care to appellant and that appellant consented to relieve respondent of that duty. See Baber v. Dill, 531 N.W.2d 493, 495 (Minn.1995) (stating that “[i]f no duty exists there is no need to determine whether a person assumed the risk thus relieving the defendant of the duty”); Mailand, 284 N.W.2d at 351 (stating that for primary assumption of the risk to apply as a complete bar to the plaintiffs recovery, it must be shown that the plaintiff manifested consent, express or implied, to reheve the defendant of his duty of care). Lastly, primary assumption of the risk may not apply if appellant can show that respondent enlarged the risk to appellant. Rusciano v. State Farm Mut. Auto. Ins. Co., 445 N.W.2d 271, 273 (Minn.App.1989).

A. Knowledge and Appreciation of the Risk

Appellant contends that the district court incorrectly concluded that he knew and appreciated the risks of playing paintball without eye protection. He asserts that he had never actually played a game of paintball before the day of the accident and that his knowledge of the game from promotional literature and television was insufficient to establish true knowledge and appreciation of the risks. We disagree.

The record supports the district court’s determination that appellant knew and appreciated the risk of playing paintball without eye protection. In his deposition, appellant acknowledged that he knew that a person could be injured if he or she got hit in the eye with a paintball and that people wear eye protection to prevent eye injuries from paintballs. He also acknowledged that he understood that eye protection should be worn at ah times while handling a paintball gun and that he, himself, wore eye protection when he started playing the game in order to protect his eyes. Additionally, appellant testified that he had watched paintball games on television, that the players always wore eye protection, and that he had seen warnings on paintball product advertisements that eye protection should be worn at all times. The district court correctly concluded that appellant knew and appreciated the risks of playing paintball without eye protection.

B. Chance to Avoid Risk But Voluntarily Chose to Take Risk

Appehant had a pair of goggles that he could have worn, but he chose not to. The district court correctly found, and appellant does not dispute, that appellant had a choice to avoid the risk of being hit in the eye with a paintball, but voluntarily chose to take the risk.

C. Duty and Consent

The defendant must owe a duty of care to the plaintiff before the plaintiff can consent to relieve the defendant of that duty. Baber, 531 N.W.2d at 495. Neither party disputes, and the district court correctly determined, that respondent owed a duty of care to appellant in this case.

For primary assumption of the risk to apply as a complete bar to the plaintiffs recovery, the evidence must show that the plaintiff manifested consent, express or implied, to relieve the defendant of his duty of care. Mailand, 284 N.W.2d at 351. In the absence of consent, secondary assumption of the risk applies. Id. The plaintiff consents to relieve the defendant of his duty when the plaintiff voluntarily enters into a relationship in which the plaintiff assumes well-known, incidental risks. See Snilsberg, 614 N.W.2d at 743 (“The defendant has no duty to protect the plaintiff from the well-known incidental risks assumed, and the defendant is not negligent if any injury to the plaintiff' arises from an incidental risk.”); see also Taylor v. Hesser, 991 P.2d 35, 38 (Okla.Civ.App.1998) (holding that “participants in the paintball game consented to the risks associated with the game” and therefore “the parties did not owe a duty of care to [plaintiff] to avoid hitting him with paintballs.”).

Before Minnesota courts recognized the distinct principle of primary assumption of the risk, the Minnesota Supreme Court applied the general concept of assumption of the risk to a participant in an athletic activity. Moe v. Steenberg, 275 Minn. 448, 450, 147 N.W.2d 587, 588-89 (1966). In Steenberg, the supreme court held that an ice skater assumed the risk of injury when she fell down while skating and, as she tried to get to her feet, the defendant— who was also ice skating — fell on her, causing her injury. Id. The court found that assumption of the risk was a proper issue to submit to the jury, and held that “[i]t is the general rule that one who participates in a sport assumes the risks which are inherent in it.” Id. Since the development of primary assumption of the risk as a distinct principle in Minnesota, there have been cases involving injuries to spectators at sporting events, but no cases dealing with primary assumption of the risk in the context of participants in the events.

Because participants in sports enter into relationships in which they assume well-known, inherent risks, they consent to relieve other participants of their duty of care with regard to those risks. See id. While there is no caselaw in Minnesota dealing specifically with the issue of primary assumption of the risk in the context of paintball, application of the doctrine of primary assumption of the risk is appropriate here.

The record shows that the risks inherent in the game of paintball are obvious and well-known. Appellant testified in his deposition that it hurt when the paintballs hit his body. He also testified that he did not always hit his target, and that he knew it was possible for one player to unintentionally hit another in the head with a paintball. Appellant testified further that paintball players are supposed to wear eye protection because there is a risk that a player can get hit in the eye, and that he wore goggles to protect his eyes when he started playing the game. Generally, the issue of whether or not a risk is inherent in a sport is a jury question, but when the evidence is conclusive, as it is here, there is no fact issue for a jury to decide. See Hollinbeck, 261 Minn. at 486, 113 N.W.2d at 13 (stating that ordinarily the question of whether a party has assumed the risks of a given situation is for the jury, but when the evidence is conclusive, it becomes a question of law for the court). The evidence shows conclusively that the risk of being shot in the eye with a paintball is inherent in the game of paintball. Further, the district court correctly concluded that because appellant voluntarily chose to play paintball after the break without eye protection, knowing that getting hit in the eye with a paintball was an inherent risk of the game, he consented to relieve respondent of his duty of care with regard to that risk.

The district court correctly concluded as a matter of law that (1) appellant knew and appreciated the risk of being hit in the eye with a paintball, (2) appellant had a choice to avoid the risk but chose to take the risk, and (3) respondent owed appellant a duty of care, but appellant consented to relieve respondent of that duty. Therefore, the district court properly concluded as a matter of law that appellant primarily assumed the risk of being hit in the eye with a paintball by playing paintball without eye protection.

D. Enlargement of the Risk

Relying on Rusciano v. State Farm Mut. Auto. Ins. Co., 445 N.W.2d 271 (Minn.App.1989), appellant argues that respondent enlarged the risk to appellant by failing to take the necessary precautions to comply with the no-head-shots rule. Primary assumption of the risk may not apply if the defendant enlarged the risk to the plaintiff. Id. at 273. Appellant argues that respondent should have aimed lower or stopped playing, if there was a risk that he was going to break one of the rules of their game. In Rusciano, we held that, although the plaintiff assumed the risk of injury when he stepped out in front of an oncoming automobile, he did not assume the enlarged risk of the driver’s improper conduct and failure to brake. Id. at 272-73. Appellant argues that, as in Rusciano, respondent in this case failed to take the necessary steps to avoid breaking the rules and injuring appellant. But clarifying Rusciano in a later case, we noted that the driver in Rusciano had actually accelerated before hitting the plaintiff and stated that in order for there to be an enlargement of the risk there must be a “new risk” and “only a limited time to react.” Jussila, 556 N.W.2d at 237.

Here, respondent created no additional risks to appellant that were not in existence prior to appellant taking off . his eye protection. It is undisputed that respondent did not aim for appellant’s head or intentionally try to hit appellant in the head. There is no evidence in the record demonstrating that respondent’s actions in shooting appellant in the eye were analogous to the defendant’s actions in Rusci-ano when he presented a new and enlarged risk to the plaintiff by accelerating his automobile. The district court correctly determined that respondent did not enlarge the risk to appellant.

Because the district court correctly concluded as a matter of law that respondent did not enlarge the risk to appellant, the district court correctly concluded as a matter of law that appellant primarily assumed the risk of being hit in the eye with a paintball.

II.

Appellant asserts that the district court improperly granted summary judgment for respondent because there are genuine issues of material fact regarding whether appellant primarily assumed the risk of being hit in the eye with a paintball.

[T]here 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, 566 N.W.2d at 71. 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.” Id. at 69.

Appellant argues that there are many genuine issues of material fact in this case. He points to fact issues such as the accuracy of the paintball guns, how well respondent could see through his goggles, how much experience and knowledge appellant actually received from watching games of paintball on television and reading promotional literature. While appellant points to some fact issues, he is unable to identify any issues of fact that are material to the issue of primary assumption of the risk. When the material facts are undisputed, as they are here, and reasonable people can draw only one conclusion, assumption of the risk is a question of law for the court. Schroeder v. Jesco, Inc., 296 Minn. 447, 451, 209 N.W.2d 414, 417 (1973). The district court correctly determined that there are no genuine issues of material fact and properly granted respondent’s motion for summary judgment.

DECISION

The district court properly granted respondent’s motion for summary judgment based on primary assumption of the risk.

Affirmed.

      . Appellant was not out of paintballs, but was rearming his paintball gun. As a result, the rule regarding not shooting a person who was out of paintballs did not apply.

      . In an effort to avoid confusion, many other states have chosen to abolish the concept of primary assumption of risk, and, instead, simply frame the issue as whether or not the defendant owed a duty to the plaintiff. See, e.g., Arnold v. City of Cedar Rapids, 443 N.W.2d 332, 333 (Iowa 1989) (stating that it is preferable to frame issues of primary assumption of the risk in terms of whether a duty is owed); Meistrich v. Casino Arena Attractions, Inc., 31 N.J. 44, 155 A.2d 90, 97 (1959) (characterizing issues of primary assumption of the risk as negligence issues); Perez v. McConkey, 872 S.W.2d 897, 905 (Tenn.1994) (holding that the doctrine of primary assumption of the risk has no useful purpose, and adopting the common law concept of duty to analyze issues of primary assumption of risk).

      . Other jurisdictions have specifically addressed the issue of assumption of the risk in the context of paintball. See, e.g., Leonard v. Behrens, 601 N.W.2d 76, 81 (Iowa 1999) (holding, in a case of first impression, that paintball was a contact sport to which the recklessness standard applied, under the contact sports exception to the general rule- of negligence); Hesser, 991 P.2d at 35 (holding that player of paintball consented to the risks of playing and relieved the defendant of his duty when the player voluntarily participated in the game); Phi Delta Theta Co. v. Moore, 10 S.W.3d 658, 661 (Tex.1999) (stating in a dissent to denial of a petition to hear a case involving paintball that “a defendant does not owe a duty to protect a participant from risks inherent in the sport or activity in which the participant has chosen to take part”).


author: HUDSON, Judge.

text:
    Wayne PESTKA, et al., Appellants, v. COUNTY OF BLUE EARTH, Respondent.
    No. C3-02-566.
    Court of Appeals of Minnesota.
    Dec. 17, 2002.

      Charles K. Frundt, Frundt & Johnson, Blue Earth, MN, for appellants.
    Ross Arneson, Blue Earth County Attorney, Mankato, MN; and Scott T. Anderson, Ratwik, Roszak & Maloney, P.A., Minneapolis, MN, for respondent.
    Considered and decided by HUDSON, Presiding Judge, PETERSON, Judge, and G. BARRY ANDERSON, Judge.
   OPINION

HUDSON, Judge.

This is the second appeal to this court arising from the petition for a drainage improvement to County Ditch # 86, Branch 1, in Blue Earth County. On appeal from summary judgment, appellants argue that the district court (a) erred in ruling that Minn.Stat. § 103E.5I1 (2002) gives the drainage authority the ability to approve a corrected report of the viewers; (b) should have ruled that Minn.Stat. §§ 103E.341 and 103E.505 (2002) preclude the drainage authority from awarding a contract for a drainage project unless it is known that the project’s benefits exceed its cost; and (c) should have included in the cost of the project the amounts paid to avoid a challenge to the project by others. We affirm.

FACTS

On September 23, 1997, the Blue Earth County Board of Commissioners (county board), acting as the drainage authority, approved a proposed drainage improvement to County Ditch # 86, Branch 1, in Blue Earth County. As required by statute, the county board found that the estimated benefits were greater than the total estimated costs, including damages. See Minn.Stat. § 103E.341 (2002). At the time of the hearing, the viewers determined the benefits to be $339,819 and the estimated costs of the improvement, including damages, to be $315,932, causing the estimated benefits to-exceed the sum of the estimated damages and the costs by $23,886.

No appeal was taken from the order establishing the drainage improvement project. On October 28, 1997, however, appellants Wayne Pestka and Blaine Phillips (Pestka and Phillips), along with several other affected landowners, filed a benefits-and-damages appeal, contesting the amount of benefits and damages that would accrue to their lands under the drainage improvement project. At the January 11, 1999, jury trial of the consolidated appeals, the viewers indicated that they had misapplied a capitalization formula to arrive at the determination of benefits, and that their report to the county board had consequently understated the benefits that they believed accrued to the land. Nonetheless, the jury issued verdicts reducing the amount of benefits and increasing the amount of damages to most of the subject properties,‘resulting in the cost of the drainage improvement project exceeding the benefits.

In apparent anticipation that the viewers would file an amended report, on April 12, 1999, Pestka and Phillips filed a petition with the drainage authority for (1) nonap-proval and denial of an amended viewers’ report, on the basis that the viewers had made erroneous assumptions as to benefits and (2) dismissal of the proceedings on the basis that the costs, including damages, would exceed the benefits of the project. On April 30, 1999, the viewers did, in fact, file an amended viewers’ report, reporting increased benefits to the affected land based on the adjustment to the capitalization factor. Benefits under the amended report were set at $324,168.

As a result of a posttrial settlement between the parties, the district court issued amended findings of fact, order, and judgment in the first benefits appeal, incorporating many of the verdict amounts and making minor modifications to the precise area of certain lands to be reclaimed. On May 25, 1999, the project engineers then filed a revised amended final report with some project engineering changes incorporating certain changes agreed to by the parties in the posttrial settlement. Two days later, the county received new bids for the project. The lowest bid came from Krengel Brothers Construction, Inc.

On June 7, 1999, another affected landowner, Merrill Hoppe (Hoppe), who had not joined in the original proceeding, petitioned the county board to refer the initial viewers’ and engineer’s reports back to the viewers and the engineer for amendment to conform to the reports. The petition stated that because of excessive litigation costs, it appeared that unless the viewers’ and engineer’s reports were amended, the improvement project could not be constructed because the costs would be in excess of the reported benefits. On August 9, 1999, the county board found that with the corrections or modifications proposed in the petition, a contract could be awarded for construction of the project and ordered that the engineer and the viewers amend their initial reports to conform to Hoppe’s petition. As amended, the reports were adopted; the benefits were determined to be $824,186, and the cost of construction plus damages found to be $313,577.

As a result of this order, Pestka and Phillips appealed a second time to the district court, challenging the benefits and damages determinations on lands affected by the order. Because their benefits had been determined in their first appeal, Pest-ka and Phillips’ benefits were unchanged by this order. Included in the new appeal was land owned by Duane Truebenbach and other affected landowners. Pestka and Phillips also filed a complaint in district court requesting a temporary injunction and a declaratory judgment that the county board had exceeded its authority in approving the amended viewers’ report, and that the sum of $12,000, which had been paid into the trust account of an attorney for the county in order to secure the promise of Duane Truebenbach not to appeal the benefits and damages determination, be considered additional costs of the project. While these actions were pending, the county board issued an order on October 19, 1999, awarding the construction contract to Krengel Brothers Construction, Inc.

The district court dismissed the second benefits-and-damages appeal as well as the declaratory judgment/injunction action, noting that it had become moot as a result of the dismissal of the benefits-and-damages appeal. Pestka and Phillips then appealed to this court, which concluded that they lacked standing to appeal because there was no “injury in fact” to them. In re Improvement of County Ditch No. 86 v. Phillips, 614 N.W.2d 756, 763 (Minn.App.2000) (Phillips I). On appeal, the Minnesota Supreme Court reversed, holding that appellants, who would be directly affected by the proposed project, had standing pursuant to Minn.Stat. § 103E.091 to appeal the benefits and damages determinations, even when they were not appealing those determinations as to their own land. In re Improvement of County Ditch No. 86 v. Phillips, 625 N.W.2d 813, 814 (Minn.2001) (Phillips II). The supreme court also held that the appellants’ declaratory judgment and injunctive actions could proceed. Id. at 821. During the pendency of this litigation, the drainage improvement was constructed. On February 27, 2001, the county board accepted the drainage project and approved final payment to the contractor.

On remand, the district court granted summary judgment for Pestka and Phillips as to the county board’s jurisdictional challenge. On the other issues the district court granted summary judgment for the county board, holding that (a) the county board did not exceed its authority under Minn.Stat. § 103E.511 in accepting the amended viewers’ report, (b) Minn.Stat. § 103E.505 granted the board authority to award a contract before a final determination of whether the benefits exceeded the cost of improvement, and (c) the payment of $12,000 to the attorney trust fund did not constitute an illegal gift to the drainage system. The court also declined to order injunctive relief, holding that the issue had become moot when the project was constructed. This appeal followed.

ISSUES

I. Does Minn.Stat. § 103E.511 (2002) authorize a ditch authority to accept an amended viewers’ report in order to correct errors in the previous report?

II. Does a ditch authority have the authority, under Minn. Stat § 103E.505 (2002), to award a construction contract for drainage improvements when a benefits- and-damages appeal is pending?

III. Does a deposit in an attorney trust fund, held for an affected landowner in exchange for an agreement not to appeal benefits and damages, constitute an illegal gift to the drainage improvement project when it does not directly benefit the drainage authority?

ANALYSIS

On appeal from summary judgment, this court asks whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). On an appeal in a declaratory judgment action, we apply a clearly erroneous standard of review to the findings of fact and review the district court’s determinations of legal questions de novo. Minn. Ctr. for Envtl. Advocacy v. Big Stone County Bd. of Comm’rs, 638 N.W.2d 198, 202 (Minn.App.2002), review denied (Minn. Mar. 27, 2002). Statutory construction is a matter of law, which this court reviews de novo. Brookfield Trade Ctr. Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998).

I

Minnesota laws concerning drainage ditches form a “complex matrix adopted with the intent -of reclaiming agricultural land by disposing of excess water that renders the land untillable, and fairly allocating the costs among benefited landowners.” In re Improvement of Murray County Ditch No. 31, 615 N.W.2d 40, 45 (Minn.2000) (citation omitted). Generally speaking, a drainage improvement is not intended to be of particular benefit to the general public; only the affected landowners use the ditch. Thus, drainage improvements are designed to be self-sustaining in that the benefits to individual landowners are required to be greater than the costs so that the entire project can be paid for by assessments to the landowners who receive the benefits. The amount of liability on a tract of land may not exceed the benefits determined for that tract. Minn.Stat. § 103E.601 (2002).

Because drainage proceedings are purely statutory, their validity depends on strict compliance with the relevant provisions of the drainage statutes. In re Repair & Improvement of Judicial Ditch No. 9 v. County of Freeborn, 386 N.W.2d 358, 360 (Minn.App.1986). Since these statutes form part of a complete statutory scheme, and since they relate to the same subject matter, they are in pari materia and should be construed together. Wold v. Bankers Sur. Co., 133 Minn. 90, 92-93, 157 N.W. 998, 999 (1916).

Appellants Pestka and Phillips first challenge the county’s authority, under -Minn. Stat. § 103E.511 (2002), to accept the amended viewers’ report. Minn.Stat. § 103E.511 provides a specific procedure for amending reports after the establishment of a drainage, system. If certain conditions are met, the statute permits the drainage authority to authorize the engineers to amend the detailed.survey report, and if the amended changes affect the amount of benefits or damages, the drainage authority is directed to refer the viewers’ report back to the viewers to reexamine the benefits and damages. Minn.Stat. § 103E.511, subd. 5(e) (2002). According to Minn.Stat. § 103E.511, subd. 1(1) (2002), the procedure under this section

may be used if, after a drainage system is established:
(1) the only bids received are for more than 30 percent in excess of the engineer’s estimated cost, or in excess of the benefits, less damages and other costs; * * *.

Here, Pestka and Phillips appealed the county board’s initial benefits and damages determination as to their properties, and the matter was tried to a jury in January 1999. The jury verdict rendered increased the damages and decreased the benefits accruing to their properties. The jury verdict meant that, as to the Pestka and Phillips properties, the costs of constructing the drainage improvement, including damages, exceeded the benefits received by Pestka and Phillips. As a result, the amended engineering report recommended several engineering changes to the project, some reflecting the stipulated posttrial settlement concerning the benefits and damages to Pestka and Phillips’ lands. In addition, the corresponding amended viewers’ report recalculated the benefits, correcting the previous error in capitalizing the annual benefit; this resulted in increased benefits.

Pestka and Phillips argue that immediately following the jury verdict determining benefits and damages as to their own lands, when the proposed costs and damages were found to exceed the proposed benefits, the county board was obligated to dismiss the proceeding pursuant to Minn. Stat. § 103E.341 (2002). Under this section, the drainage authority must dismiss the proceedings if it determines that the benefits of the proposed drainage project are less than the total cost, including damages awarded. But modification of the original drainage proposal has historically been allowed throughout the legislative scheme for establishment of drainage ditches. See In re Lateral 2-A of Judicial Ditch No. 36 v. Redwood County, 290 Minn. 70, 74, 185 N.W.2d 701, 704 (1971) (holding that modification of engineer’s report to include additional lands in drainage system did not constitute so substantial a change as to invalidate drainage proceedings). Furthermore, the viewers, who are neutral fact-finders, unequivocally stated that they had made an error in their calculation and wished to submit a corrected report.

The county board argues that given that the drainage authority had accepted the viewers’ initial report, it flies in the face of reason and rationality to suggest that the drainage authority, with a proper petition under Minn.Stat. § 103E.511 before it, had no power to accept the viewers’ amended report as well. We agree, particularly since Minn.Stat. § 103E.511, subd. 5(f), specifically provides for an appeal of the amended viewers’ report to be taken under the provisions of Minn.Stat. § 103E.091, subd. 1. It would not be logical for the statute to provide for appeal of an amended report if the drainage authority lacks the power to accept such a report. Consequently, we conclude that Minn.Stat. § 103E.511 gave the county authority to order an amended report, and we hold that the district court properly granted summary judgment in favor of the county board on this issue.

II

Pestka and Phillips next contend that the county lacked authority to award the construction contract for the drainage improvement project to Krengel Brothers Construction, Inc. during the pendency of their second benefits-and-damages appeal. Minn.Stat. § 103E.505, subd. 2 (2002) provides that a drainage authority may not award a construction contract for a drainage project during a pending benefits-and-damages appeal, “unless the drainage authority orders the contract awarded.” (Emphasis added.) Pestka and Phillips maintain that this section should be read together with Minn.Stat. § 103E.341 (2002) to allow the award of a construction contract only when the finally determined benefits exceed the finally determined costs of the project. See Minn.Stat. § 103E.341, subd. 1(1) (2002). But the plain language of Minn.Stat. § 103E.505, subd. 2 clearly reflects the intent of the legislature to allow a construction contract to be awarded during a benefits-and-damages appeal, if the drainage authority sees fit to do so. See Minn.Stat. § 645.16 (2002) (stating that “[wjhen the words of a law in their application to an existing situation are clear and free from ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing its spirit”)

In addition, Minn.Stat. § 103E.341, subd. 2(4) (2002), referring to establishment proceedings, states only that the drainage authority “shall” establish the proposed drainage project “if it determines that * * * the estimated benefits are greater than the total estimated cost, including damages.” (Emphasis added.) The word “estimated” contemplates that damages, benefits, and costs may change at a later date. This language acts as an apparent acknowledgement of both the existence of Minn.Stat. § 103E.091 (benefits- and-damages appeals), and the review process under Minn.Stat. § 103E.095 (establishment appeals). Moreover, the word “shall” indicates that establishing the drainage project is mandatory if the criteria enumerated in Minn.Stat. § 103E.341, subd. 2 are met. See Minn.Stat. § 645.44, subd. 16 (2002) (stating “ ‘[sjhall’ is mandatory”). In other words, Minn.Stat. § 103E.341 simply identifies what the drainage authority must determine at the time of the final hearing, not at some later point in time. Thus, if the proposed benefits outweigh the proposed costs at the time of establishment, the drainage project must be established. Once a drainage project has been established, if the drainage authority sees fit, it may award a construction contract for the pending drainage project, even during a benefits-and-damages appeal.

Pestka and Phillips argue that until the benefits and damages are finally determined, there can be no valid establishment order, relying on Hagen v. County of Martin, 253 Minn. 367, 91 N.W.2d 657 (1958). In Hagen, the Minnesota Supreme Court held that where the benefits-and-damages appeals had finally determined that the damages exceeded the benefits of a drainage project, the drainage authority was compelled to dismiss the proceedings. Id. at 374, 91 N.W.2d at 662. But Hagen was decided in 1958, when the drainage code was restricted to a single appeals process for both establishment and benefits-and-damages appeals. See Minn.Stat. §§ 106.631, .021 (1957), repealed by 1985 Minn. Laws ch. 172, § 133. In 1985, the legislature reorganized the drainage statutes, and for the first time, established separate appeals processes for establishment and benefits-and-damages appeals. See Minn.Stat. §§ 106A.091, .095 (Supp.1985).

We acknowledge that in 1985, and again in 1990 when the statutes were reco-dified under chapter 103E, the legislature indicated that the recodification was not intended to alter the drainage law. See 1985 Minn. Laws ch. 172, § 132; 1990 Minn. Laws ch. 391, art. 10, § 1. But the current statutory framework has made explicit the distinctions between a benefits- and-damages appeal and an establishment appeal. See Minn.Stat. §§ 103E.091, .095 (2002). An affected party may appeal the initial establishment order pursuant to Minn.Stat. § 103E.095; such an appeal must be taken within 30 days after the order is filed, and the matter is tried to the court. Minn.Stat. § 103E.095, subds. 1, 2. An appeal under this section challenges whether the drainage project goes forward; therefore, no construction contracts may be awarded while an establishment appeal is underway. Once a drainage project is established, however, a landowner may still appeal the benefits and damages in a separate proceeding under Minn.Stat. § 103E.091. In a benefits- and-damages appeal, the affected party has a right to trial by jury for a possible redetermination of benefits. and damages. Minn.Stat. § 103E.091, subds. 2, 4. Such an appeal does not challenge the establishment of the drainage system, the validity of the drainage system, or whether the drainage project should go forward. It merely challenges the determination of costs, damages, and benefits.

Minn.Stat. § I03E.095, subd. 3, clarifies the interaction of the two kinds of appeals. According to that statute, if an establishment order is appealed, the trial of a benefits-and-damages appeal must be stayed until the establishment appeal is resolved. Minn.Stat. § 103E.095, subd. 3. If the establishment order is affirmed, the benefits- and-damages appeal must then be tried. Id. Thus, the statutory scheme contemplates the resolution of the establishment question before a benefits and damages appeal is resolved.

This view is in harmony with caselaw decided under previous versions of the drainage statutes, which differentiated between issues of establishment and benefits and damages. See Titrud v. Achterkirch, 298 Minn. 68, 71-72, 213 N.W.2d 408, 411 (1973) (upholding establishment order, but holding that issue of benefits and damages could not be raised for first time on appeal, absent jury determination on that issue); State ex rel. Great Northern Ry. v. Dist. Court of Sixteenth Judicial Dist., 227 Minn. 482, 487, 36 N.W.2d 336, 339 (1949) (upholding establishment order, noting that errors in individual assessments could be corrected on appeal from those assessments). In Titrud, an establishment appeal, the Minnesota Supreme Court determined that assertions that costs had been underestimated in the drainage authority’s order establishing the ditch were not properly before the court. Titrud, 298 Minn. at 72, 213 N.W.2d at 411. The court noted that such a challenge could be raised only on additional hearings before the drainage authority. Id.

We have also considered the interaction of Minn. Stats. §§ 103E.091 and 103E.095 in interpreting the appealability of orders under Chapter 103E. See generally In re Establishment of County Ditch No. 11, 511 N.W.2d 54, 56 (Minn.App.1994) (holding that appeals of final district court orders and judgments issued pursuant to Minn. Stat. § 103E.091 were governed by Minn. Stat. § 103E.095 as to time limits on ap-pealability), review denied (Minn. Mar. 31, 1994). Therefore, construing the provisions of Minn.Stat. §§ 103E.091 and 103E.095, subd. 3, together with Minn. Stat. § 103E.505, we conclude that once the initial establishment order was entered, the county had full authority, despite the pending benefits-and-damages appeal, to award the construction contract for the drainage improvement.

We additionally take notice of the current benefits-and-damages appeal that has been allowed to proceed by order of the supreme court. According to Minn.Stat. § 103E.601, subd. 1 (2000), the amount of liability on a tract of property may not exceed the benefits accruing to that tract in the proceedings. The legislature has provided this safeguard so that each affected landowner need not pay more than the fair share of costs allocated to his or her land. Therefore, if the appeal of benefits and damages determinations proceeds, it is presumed that the drainage authority would be responsible for the costs, if any, exceeding the benefits finally determined as to a given tract of land.

Ill

Pestka and Phillips additionally argue that a $12,000 payment to the trust account of an attorney for the county, made to secure a promise of a landowner not to appeal his benefits and damages determination, constituted an illegal gift to the drainage improvement project. In other words, Pestka and Phillips argue that the $12,000 should be charged as costs to the drainage improvement project. In Hagen, the Minnesota Supreme Court held that objecting property owners could appeal a drainage authority order accepting a gift of $4,200 on behalf of the drainage improvement when, after accepting the gift, the benefits exceeded the damages, thus permitting the drainage authority to order the improvement built. Hagen, 253 Minn. at 370, 373, 91 N.W.2d at 659, 661-62. In this case, the evidence shows an agreement made between several affected landowners, providing that one landowner would be paid the sum of $12,000 if and when the petition for the ditch improvement was finally approved, and all litigation had concluded. The sum was to be held in escrow in the trust account of an attorney representing the county board. In contrast to the situation in Hagen, however, here the county board itself was to receive no funds under the proposed arrangement, and there is no evidence that the affected landowner’s failure to appeal would “tip the balance” to allow the improvement to proceed. We therefore decline to hold that this proposal, without more, constituted an illegal gift to the drainage improvement project.

DECISION

Under Minn.Stat. § 103E.511 (2002), a drainage authority may accept an amended viewers’ report after the establishment of a drainage improvement pursuant to Minn. Stat. § 103E.091 (2002), when the viewers have made an error in reporting benefits to the affected lands. Minn.Stat. § 103E.505, subd. 2 (2002) allows a drainage authority to award a construction contract during the pendency of a benefits- and-damages appeal, after the improvement has been established. Finally, a proposed payment to one affected landowner by other affected landowners does not constitute an illegal gift to the drainage improvement project, when the drainage authority itself would receive no funds, and the record fails to establish that such a payment would have determined whether the improvement could proceed. The district court properly granted summary judgment in favor of the county board.

Affirmed.

      .This culminated a process that began with a petition for the improvement of the ditch in September, 1995. This petition sought an improvement by running an additional underground tile line in order to carry the waters drained therein to Branch l's outlet into the main ditch. The petition was later amended to include the running of an open ditch.

      . The statutory ditch law scheme as codified in 1990 remains the current governing law. We therefore cite to the 2002 Minnesota statutes in this opinion.

      . The viewers, three disinterested residents of the state qualified to assess benefits and damages, are appointed by the drainage authority. Minn.Stat. § 103E.305, subd. 1 (2002).


author: HARTEN, Judge.

text:
    Michael HEIM, et al., Respondents, Appellants, v. Aaron LEE, Respondent, Ken Zarling, et al., Appellants, Respondents, World Insurance Company, Mayo Foundation, Special Compensation Fund, Grinnell Mutual Reinsurance Company, Respondents.
    Nos. C2-02-1174, C0-02-1190.
    Court of Appeals of Minnesota.
    Dec. 17, 2002.

      Robert G. Benner, Kari C. Stonelake-Hopkins, Dunlap & Seeger, P.A., Rochester, MN, for respondents/appellants Michael and Tami Heim.
    Robert T. Stich, Louise A. Behrendt, Stich, Angelí & Kreidler, P.A., Minneapolis, MN, for appellants/respondents Zarling and Greenwood Agency, Inc.
    Steven S. Fuller, Fuller Law Firm, Rochester, MN, for respondent Lee.
    Mark D. Covin, Bassford, Lockhart, Truesdell & Briggs, P.A., Minneapolis, MN, for respondent World Insurance Company.
    Mike Hatch, Attorney General, Rory H. Foley, Sara J. Stoltman, Assistant Attorneys General, St. Paul, MN, for Special Compensation Fund.

      Charles S. Bierman, Mayo Clinic Legal Department, Rochester, MN, for respondent Mayo Foundation.
    Peter Lahn, Wendy Munyon, Grinnell Mutual Reinsurance Co., Grinnell, IA, for Grinnell Mutual Reinsurance Co.
    Considered and decided by KLAPHAKE, Presiding Judge, KALITOWSKI, Judge, and HARTEN, Judge.
   OPINION

HARTEN, Judge.

An insured brought this action for a declaratory judgment that the retroactive reformation of his insurance policy was valid. The insured, the insurer, and the insurance agent moved for summary judgment. A third party whose'right to recover from the special compensation fund was precluded by the retroactive reformation opposed the motion. The district court found that the retroactive reformation was invalid and granted summary judgment to the third party. The insured and-the insurance agent appeal.

FACTS

Michael and Tami Heim (collectively Heim) operate a farm. In early 1999, Heim purchased a farm insurance policy from Ken Zarling, an insurance agent with Greenwood Agency, Inc., (Greenwood). After discussion with Zarling, Grinnell Mutual Reinsurance Company (Grinnell) issued an insurance policy covering Heim for the relevant period.

The policy provided medical payment coverage of $1,000 per employee. Heim purchased ho workers’ compensation insurance because family farms are exempt from providing workers’ compensation coverage if they purchase a farm liability policy providing total liability coverage of $300,000 and medical payment coverage of $5,000. See Minn.Stat. § 176.011, subd. lia (1998).

In June 1999, Aaron Lee, a farm laborer, was injured while working for Heim. He was treated for multiple head injuries at the Mayo Clinic. Heim submitted Lee’s claim to Zarling, who sent it to Grinnell; Grinnell paid Lee the $1,000 policy limit.

Lee then applied to respondent Special Compensation Fund, believing he was entitled to compensation because Heim had neither obtained workers’ compensation insurance nor provided $5,000 of medical payment coverage to his employees. See Minn.Stat. § 176.183, subd. 1 (1998). In May 2001, Grinnell and Heim agreed to reform the policy retroactively to provide $5,000 of medical coverage for the period of Lee’s injury. Lee received a check for that amount. But recovery under the policy allegedly foreclosed Lee’s right to recover from the special compensation fund, and Lee objected.

Heim then brought an action seeking a declaratory judgment that the reformation was valid and that Heim possessed farm liability insurance on the date of Lee’s injury. Although Heim named Zarling and Greenwood as defendants, their interests were identical to his, and they all moved for summary judgment. Lee also moved for summary judgment. The district court granted summary judgment to Lee. Heim, Zarling and Greenwood now challenge that judgment in a consolidated appeal.

ISSUE

Was the retroactive reformation of the insurance policy valid?

ANALYSIS

A district court’s determination regarding reformation will not be disturbed on appeal unless it is manifestly contrary to the evidence. Nolan v. Stuebner, 429 N.W.2d 918, 923 (Minn.App.1988), review denied (Minn. 16 Dec. 1988). An insurance policy may be reformed by meeting the general criteria for reformation of written instruments: (1) a valid agreement expressing the real intent of the parties; (2) a written instrument that fails to express the real intent; and (3) failure due to either mutual mistake or unilateral mistake of one party and fraud or inequitable conduct of the other. Leamington Co. v. Nonprofits’ Ins. Ass’n, 615 N.W.2d 349, 354 (Minn.2000).

But although

[rjeformation is generally allowed against the original parties to an instru-mente,] * * * [t]he rule gives way ⅝ * ⅜ to the intervening rights of persons not parties to the contract.

Manderfeld v. Krovitz, 539 N.W.2d 802, 805 (Minn.App.1995), review denied (Minn. 25 Jan. 1996). Lee was not a party to the insurance contract between Grinnell and Heim. The specific issues we must address, then, are (1) whether Lee had an intervening right to recover from the special compensation fund, and (2) whether that right had vested before Grinnell and Heim reformed the contract.

On the date of Lee’s injury, Minn. Stat. § 176.183, subd. 1 (1998), provided that

[w]hen any employee sustains an injury arising out of and in the course of employment while in the employ of an employer * * * not insured or self-insured as provided for in [the Workers’ Compensation Act], the employee * * ⅜ shall nevertheless receive benefits as provided for in this chapter from the special compensation fund.

It is undisputed that when Lee sustained an injury arising out of and in the course of his employment, Heim, his employer, was not insured as provided for in the Workers’ Compensation Act because Heim carried neither $5,000 in medical benefits nor workers’ compensation insurance. Therefore, Lee had a right to benefits from the special compensation fund.

The question of when an injured employee’s right to recover vests has been addressed in the context of workers’ compensation law.

The obligations and rights of the parties as to weekly compensation and other benefits to the employee do become fixed at the date of a compensable accident ⅝ ⅜ *.

Broos v. Portee, Inc., 376 N.W.2d 688, 691 (Minn.1985) (quoting Warner v. Zaiser, 184 Minn. 598, 601, 239 N.W. 761, 762 (1931)). Analogously, Lee’s right to benefits became fixed on the date of his com-pensable accident, almost two years before Heim and Grinnell attempted reformation of the insurance policy.

Contrary to appellants’ argument, the reformation does not operate to prevent Lee from acquiring a right to which he was never entitled; it operates to foreclose a right Lee had already acquired. The fact that the reformation puts Lee in the same position he would have been in if Heim’s original policy had been properly drafted is irrelevant. At the time of the reformation, Lee was a third party who already had an intervening right, and intervening rights of third parties preclude reformation. See Manderfeld, 539 N.W.2d at 805.

Moreover, the reformation runs counter to the purpose of Minn.Stat. § 176.183, subd. 1.

[T]he legislative intent in enacting section 176.183, subd. 1, was to require the special compensation fund to pay compensation ⅜ * * to an injured employee whose employer is “not insured” because he has never attempted to obtain coverage * * *.

Olsen v. Kling, 363 N.W.2d 310, 314 (Minn.1985). When Lee was injured, his employer was “not insured” under the Workers’ Compensation Act because he had obtained neither workers’ compensation insurance nor sufficient farm liability insurance to exempt him from providing worker’ compensation coverage to his employees. We agree with the district court that Lee was entitled to summary judgment.

DECISION

The district court correctly determined that the retroactive reformation of the insurance policy was invalid because it eliminated a right a third party had already acquired. Lee- was entitled to summary judgment.

Affirmed.

      . Heim testified that he did not know he needed $5,000 in medical coverage to be exempt from purchasing workers’ compensation insurance; Zarling testified that he told Heim that, if he was within the definition of "family farm,” he needed the $5,000 in coverage and that Heim “just chose not to go to $5,000.”

      . Although World Insurance Company, Mayo Foundation, Special Compensation Fund, and Grinnell Mutual Reinsurance Company are all listed as respondents, none of them has participated in this appeal.

      .Lee did have the right to bring a negligence action against Heim, but his attorney stated at oral argument that there was no viable negligence claim.

      . Zarling and Greenwood correctly observe that "the injured employee of a qualified family farmer has no right to compensation under the [Workers' Compensation] Act.” But Heim was not a "qualified family farmer” when Lee was injured because Heim did not carry the requisite farm liability insurance to qualify him for exemption from workers' compensation insurance.

      . Zarling and Greenwood rely on Olsen as an example of a case showing that "coverage disputes can and do arise regarding whether, and to what extent, the employer has obtained appropriate workers' compensation coverage" and argue that such disputes preclude an injured employee's right to recover from vesting. But their reliance is misplaced: Olsen "construe[s] section 176.183, subd. 1, to require the special compensation fund to pay benefits when coverage is disputed.” Id. at 314.


author: GILBERTSON, Chief Justice.

text:
    2002 SD 138
    STATE of South Dakota, Plaintiff and Appellee, v. William Boyd GUTHRIE, Defendant and Appellant.
    No. 22311.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 8, 2002.
    Decided Nov. 20, 2002.

      Michael R. Moore, Beadle County State’s Attorney, Huron, SD, for plaintiff and appellee.
    Philip R. Parent of Arneson, Issenhuth & Gienapp, Madison, SD, for defendant and appellant.
   GILBERTSON, Chief Justice.

[¶ 1.] This appeal arises from a remand hearing in which the circuit court determined the sanctions levied against attorney Philip R. Parent for violating a discovery order to be reasonable. We reduce the amount of the sanction from $8,866 to $5,500.

FACTS AND PROCEDURE

[¶ 2.] On January 21, 2000, William Boyd Guthrie was convicted of first-degree murder for the kñling of his wife. State v. Guthrie, 2001 SD 61, ¶ 28, 627 N.W.2d 401, 413 (Guthrie I). During the course of the trial and after the State had rested its case-in-chief, defense counsel, Philip Parent, for the first time, disclosed his intent to introduce a purported suicide note into evidence. In order to authenticate this note, Parent also sought to call an expert to the stand. Although the trial court allowed the introduction of the note and the testimony of the expert, it reserved a ruling on whether Parent’s actions violated the pre-trial discovery order and whether the State should be awarded terms.

[¶ 3.] After the trial, the State filed a Motion for Terms, requesting that Parent be ordered to pay for part of the cost of recalling the State’s expert witness, Judd Robbins, who lived in Nevada, to refute the alleged suicide note. After a hearing, the circuit court found that Parent had violated the discovery order, granted the State’s motion, and ordered Parent to pay $8,866. Parent appealed that decision and we remanded the case back to the circuit court to determine the reasonableness of the sanctions. State v. Guthrie, 2001 SD 89, ¶ 17, 631 N.W.2d 190, 196 (Guthrie II). Because the trial court had not conducted a factored analysis for determining reasonableness, we instructed the circuit court to consider the following factors in the remand hearing: 1) reasonable hours expended multiplied by a reasonable fee; 2) the severity of the sanction weighted against the equities of the parties, including ability to pay; 3) availability of less drastic sanctions which would prevent future abuses; and 4) other factors including the offending party’s history and degree of bad faith contributing to the violation. Id. ¶ 12, 631 N.W.2d at 195 (citing White v. General Motors Corp., Inc., 908 F.2d 675, 684-86 (10thCir.1990); Chittenden & Eastman Co. v. Smith, 286 N.W.2d 314, 316-17. (S.D.1979)).

[¶ 4.] The remand hearing was held on November 5, 2001. After considering all of the evidence, the circuit court judge concluded that the sanctions were not unreasonable. Parent appeals this decision, and raises the following issue:

Whether the trial court erred in determining that the monetary sanction of $8,866 was reasonable.

STANDARD OF REVIEW

[¶ 5.] “[T]he trial court’s choice of remedy or failure to grant a particular remedy is reviewed under an abuse of discretion standard.” State v. Hagan, 1999 SD 119, ¶ 19, 600 N.W.2d 561, 566 (citing State v. Hofman, 1997 SD 51, ¶ 17, 562 N.W.2d 898, 903). Pursuant to an abuse of discretion standard of review, factual determinations are subject to a clearly erroneous standard. City of Deadwood v. Summit, Inc., 2000 SD 29, ¶ 9, 607 N.W.2d 22, 25 (citing New Era Mining Co. v. Dakota Placers, Inc., 1999 SD 153, ¶ 7, 603 N.W.2d 202, 204) (citing Rabenberg v. Rigney, 1999 SD 71, ¶4, 597 N.W.2d 424, 425 (citing In re Estate of O’Keefe, 1998 SD 92, ¶ 7, 583 N.W.2d 138, 139)). “Clear error is shown only when, after a review of all the evidence, ‘we are left with a definite and firm conviction that a mistake has been made.’ ” Id. “The trial court’s findings of fact are presumed correct and we defer to those findings unless the evidence clearly preponderates against them.” Lewis v. Moorhead, 522 N.W.2d 1, 3 (citing Cuka v. Jamesville Hutterian Mut. Soc., 294 N.W.2d 419, 421 (S.D.1980)). Conclusions of law are reviewed under a de novo standard, giving no deference to the circuit court’s conclusions of law. Sherburn v. Patterson Farms, Inc., 1999 SD 47, ¶ 4, 593 N.W.2d 414, 416 (citing City of Colton v. Schwebach, 1997 SD 4, ¶ 8, 557 N.W.2d 769, 771).

ANALYSIS AND DECISION

[¶ 6.] Whether the trial court erred in determining that the monetary sanction of $8,866 was reasonable.

[¶ 7.] SDCL 23A-13-17 sets forth the remedies for breach of a discovery order or obligation. It provides:

If, at any time during the course of a proceeding, it is brought to the attention of a court that a party has failed to comply with an applicable discovery provision, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances. The court may specify the time, place, and manner of making the discovery and inspection and may prescribe such terms and conditions as are just.

Under this provision, “ ‘[t]he remedy for nondisclosure of discoverable material is left to the sound discretion of the trial court.’ ” State v. Hofman, 1997 SD 51, ¶ 17, 562 N.W.2d 898, 903 (quoting State v. Oster, 495 N.W.2d 305, 309 (S.D.1993)). This Court in Guthrie II determined Parent to be in violation of the discovery statute. We found that Parent’s “ostensible obligation to his client to not disclose the note, however well intentioned, does not provide Parent a defense to the court’s discovery order.” Guthrie II, 2001 SD 89, ¶ 9, 631 N.W.2d at 194.

Clearly, the requirement of candor towards the tribunal ... requires every attorney to be fully honest and forthright. We cannot overemphasize the importance of attorneys in this state being absolutely fair with the court. Every court ... has the right to rely upon an attorney to assist it in ascertaining the truth of the case before it ... There is no allowance for interpretation.

Discipline of Wilka, 2001 SD 148, ¶ 15, 638 N.W.2d 245, 249 (internal citations omitted). Therefore, the only issue for the trial court to determine in the remand hearing was whether the sanctions were reasonable.

[¶ 8.] Parent argues that the trial court erred in finding that Robbins’ rebuttal testimony would not have been necessary if the pre-trial discovery order had not been violated. Specifically, the trial court stated:

Based on my observations of this case if the note had been seasonably turned over during the discovery period, then the State would have had Robbins examine the second computer. Robbins would have determined that the alleged “suicide” note was a product of the second computer and compiled several months after Guthrie murdered his wife. By virtue of the discovery order the State would turn over this information to the defense. Under the circumstances, it is inconceivable that the defense would have offered this note into evidence. Therefore, Robbins would not have been called as a rebuttal witness and no further costs incurred. The further costs were directly and totally caused by the violation of the discovery order.

[¶ 9.] We find that the trial court was not clearly erroneous when it found that the increased expense in recalling Robbins was caused solely by Parent’s violation of the court’s discovery order. After Parent’s surprise introduction of the note, the State was left with little time to refute this evidence. Because the State had earlier used Robbins’ expert testimony concerning evidence found on a different computer, it made sense for the State to utilize him again. As the circuit court noted, “[t]he State had approximately 48 hours to examine the note for fingerprints or in other ways refute this evidence.” Furthermore, Robbins’ rebuttal testimony was regarding the second computer containing the alleged suicide note. If the defense had seasonably turned over the note, Robbins could have conducted all his computer forensics and given testimony regarding both computers during the State’s case-in-chief. Moreover, if the note had been properly given to the State during the discovery period, evidence concerning the note’s creation date and its incriminating nature would have presumably deterred the defense from introducing it at trial.

[¶ 10.] Second, Parent argues that Robbins’ fees were unreasonable and that the State made little effort to find a local expert. However, the trial court found that Robbins’ fee of $350 per hour was reasonable because he is a highly qualified expert in computer forensics. Further, the trial court stated that “this was a murder case based solely on circumstantial evidence and the information stored on the computer was of great significance.” Therefore, it was not unreasonable for the State to turn to an expert who is highly regarded in the computer forensics field and who the jury was already familiar with because of his earlier testimony. Additionally, the trial court stated that Parent did not present sufficient evidence that there was an available local expert who could have conducted a similar examination as performed by Robbins.

[¶ 11.] After a review of the record, we cannot say the trial court was clearly erroneous when it found Robbins’ fees were reasonable or that Parent did not adequately show other local experts were available. Michael Waldner, who the defense used as its computer expert during the trial, testified at the remand hearing that other local experts were available to give similar testimony as Robbins and for less money. However, Waldner’s testimony was based on an internet search, and he did not directly communicate with the individual company personnel. Waldner did not confirm these rates and did not give names of these “other” qualified persons in the area to substantiate their availability or the costs of such services. Finally, Waldner’s own testimony conceded that Robbins was a most qualified computer expert and his fees were reasonable.

[¶ 12.] Third, Parent argues that the equities of this case do not support a sanction of $8,866 because he did not act in bad faith. Yet, the trial court found that Parent tried to “ambush” the State with this purported suicide note, hoping the State would not have time to refute the evidence. Hence, the trial court stated that Parent’s actions amounted to a “high degree of bad faith.” To explain his actions, Parent contends that he initially decided not to introduce the note or fingerprint testimony into evidence. However, this is irrelevant. “Physical evidence, whether exculpatory or inculpatory, cannot be withheld by a criminal defense attorney.” See Guthrie II, 2001 SD 89, ¶ 8, 631 N.W.2d at 194 (additional citations omitted). There is sufficient evidence to support the trial court’s finding that Parent acted in bad faith.

[¶ 13.] Nevertheless,' additional equities of the situation merit consideration. Parent was court-appointed at the time of this violation. We are well aware that those members of the Bar who serve as court appointed-attorneys do so at a significant reduction in compensation as compared to those defense attorneys who are privately retained. While a court-appointed attorney has the same high ethical obligations to the court, clients and opponents, this monetary differential is relevant.

[¶ 14.] Further, when examining Parent’s ability to pay, it appears that this sanction of $8,866 is disproportionate to Parent’s annual income of $50,000. Although discovery violations of this kind are not to be condoned, a sanction of twenty percent of an attorney’s yearly income could be viewed as a devastating amount. A lessor amount of terms will still serve to send a message to attorneys and prevent future abuses. For the foregoing reasons, we reduce the amount of sanctions to $5,500.

[¶ 15.] SABERS, KONENKAMP, and ZINTER, Justices, concur.

[¶ 16.] AMUNDSON, Retired Justice, concurs.

       Per court order, discovery was to be completed by January 5, 2000. Guthrie’s jury trial commenced on January 10, 2000.