Information on Personal Injury Claims
Dog Bite Claims
The statute defines “owner” to include “any person harboring or keeping a dog,” though it provides that “the owner shall be primarily liable.” Minn. Stat. § 347.22. A friend who lets an animal out to exercise is not an owner or person responsible under the statute, absent proof that he controlled or had the right to exercise control over the animal. See Boitz v. Preblich, 405 N.W.2d 907 (Minn. App. 1987). Similarly, the corporation that managed an apartment complex was not the “owner” of one of its tenant’s pets, even though it charged an extra $10 per month for a tenant to have the privilege of keeping a dog on the premises. Gilbert v. Christiansen, 259 N.W.2d 896 (Minn. 1977). “Harboring” an animal for purposes of the statute has been held to mean affording an animal lodging, shelter, refuge for more than a limited time or purpose, see Verrett v. Silver, 309 Minn. 275, 244 N.W.2d 147 (1976), and implies the ability to manage, control or care for the animal as an owner would otherwise be accustomed to doing. Id. The statute prescribes “secondary” liability - - after the “owner” - - for those who “keep” or harbor an animal. Tschida v. Berdusco, 462 N.W.2d 410, 412-13 (Minn. App. 1990), review denied (Minn., Dec. 20, 1990). “Keeping” for purposes of secondary ownership under the dog-bite statute involves (1) a voluntary acceptance (2) of temporary responsibility (3) as it relates to the management, control, or care of the dog; (4) exercised in a manner generally similar to that of the dog’s primary legal owner. Carlson v. Friday, 694 N.W.2d 828 (Minn. App. 2005).
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Driving Conduct
Sneezing is no Excuse for Driving Conduct. Barnes v. Dees, A06-240, 2007 WL XXXXXX, unpub. (Minn. App., Jan. 2, 2007). Driver was hit going through a green light by a car that ran a red light as the driver was blinded by the sun upon opening his eyes after a series of heavy sneezes. The jury had found the defendant not to be negligent after receiving the “emergency rule” instruction - - CIVJIG 26.35. The appellate court ruled that to give the emergency rule in circumstances where the defendant kept driving his vehicle forward toward an intersection he knew had a stop light, as he was sneezing, was an error of law.
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Immunity
Where a Minneapolis Police Pursuit Policy required continuous use of both lights and siren to engage in a chase, the intermittent use of siren violated the policy set by the government and deprived the police officers of either discretionary or official act immunity. Thompson v. City of Minneapolis, 707 N.W.2d 669 (Minn., Jan. 10, 2006). The decision on when to chase and how to chase is discretionary, except for those aspects that are mandated by policy. State law requires red lights and siren for statutory immunity under Nelson v. Wrecker Servs., Inc., 622 N.W.2d 399, 403 (Minn. App. 2001) (“there can be no question that immunity may be dependent on ministerial duties.”)
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School Activities
A school may have discretionary immunity for development or implementation of policies regarding discipline or violence. Assuming that immunity does not, apply, the general rule is that a “school district might not be liable for sudden, unanticipated misconduct by fellow students, [but] it is liable for sudden, foreseeable misconduct which probably could have been prevented by the exercise of ordinary care. . . . established by showing the likelihood that the misconduct would have been prevented had the duty been discharged.” Raleigh v. Independent Sch. Dist. No. 625, 275 N.W.2d 572, 576 (Minn. 1978). Liability may be imposed even for foreseeable misconduct after school hours and off school grounds under certain circumstances. See, e.g., Verhel v. Independent School District No. 709, 359 N.W.2d 579 (Minn. 1984). More typically, though injuries on school premises are the basis for liability. See Kingsley v. Independent Sch. Dist. No. 2, 312 Minn. 572, 251 N.W.2d 634 (1977)(injury to finger from lack of supervision and poor maintenance of lockers); see, e.g., Peterson v. San Francisco Community College District, 36 Cal. 3d 799, 685 P.2d 1193, 205 Cal. Rptr. 842 (1984) (college liable to student who paid a fee to park on campus and was sexually attacked in a parking lot area); Miller v. State, 62 N.Y.2d 506, 467 N.E.2d 493, 478 N.Y.S.2d 829 (1984) (liability where plaintiff was raped when college dormitory doors were left unlocked); McLeod v. Grand County School District No. 128, 42 Wash. 2d 316, 255 P.2d 360 (1983) (school liable for rape of schoolgirl during recess by gang of schoolboys).
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Slip and Fall
On a slip and fall claim you must show that the defendant had notice of the hazard (or reasonably should have detected the hazard) as that is what triggers their duty to act. See, e.g., Otis v. First Nat’l Bank, 292 Minn. 497, 195 N.W.2d 432 (1972) (bank that was only open for 20 minutes by time customer slipped and fell on pooled water shed from clothing and umbrellas had no duty to fallen customer); Kiaka v. S.S. Kresge Co., 273 Minn. 278, 141 N.W.2d 129 (1965) (manager on phone did not have duty to hang up and immediately investigate where a vomiting child he saw rushing by had thrown up); Norman v. Tradehome Shoe Stores, Inc., 270 Minn. 101, 132 N.W.2d 745 (1965)(in absence of proof that shoe store’s employees placed the tissue paper plaintiff slipped upon onto the floor, claimant had to show that the paper was there for a lengthy enough time for employees to have a chance to act upon it); Messner v. Red Owl Stores, Inc., 238 Minn. 411, 57 N.W.2d 659 (1953)(fact banana peel was “shriveled up and dark brown” did not create inference that it had been on floor that long); Penny v. Sears, Roebuck & Co., 193 Minn. 65, 258 N.W. 522 (1934) (pea pod in aisleway did not automatically create claim, when store showed policy of regularly sweeping and cleaning its floors of such debris); Hasan v. McDonald’s Corp., 377 N.W.2d 472 (Minn. App. 1985) (fact issue on length of time dark substance was present on floor of fast food store: old milk versus new chocolate ice cream).
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A slip and fall case against a municipality must overcome one of several immunities (e.g., ice and snow or "mere slipperiness" immunity requires that the hazard be more than a condition of slipperiness, there must be “ridges, hummocks, depressions, or irregularities” for the governmental possessor of property to be sued. Doyle v. City of Roseville, 524 N.W.2d 461, 463 (Minn. 1994) (where only three hours intervened from victim crossing sidewalk with condition of flowing water to recrossing it and encountering frozen sheet of ice, that was insufficient time to form a duty to act in the absence of these other conditions).
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There are at least three major exceptions to the "open and obvious" defense. First, Minnesota case law says that when a person sees an object but would not reasonably conclude that it posed a hazard to their health, they may knowingly encounter it and still maintain a claim against the possessor property. See Rinn v. Minnesota State Agricultural, 611 N.W.2d 361, 363 (Minn. App. 2000)(patron who encountered a puddle on steps at horse show as she descended to the viewing area thought obvious hazard of the puddle posed no real risk and chose to step into it; held she could still make a claim for her fall injuries); Barry v. Berggren’s Market Enterprises, Inc., 2003 WL 21500272 (Minn. App., July 1, 2003) (woman patron at a grocery store saw a yellow cone on the floor of an aisle and as she moved to go past it, she slipped and fell on the moisture left behind by the store’s effort to mop up the residue of a jar of spilled mayonnaise; held seeing cone doesn't necessarily imply area is hazardous). Second, a body of case law recognizes that store displays are actually designed to distract our attention - - this is where an expert would help to cement this fact - - see generally Schrader v. Kriesel, 232 Minn. 238, 45 N.W.2d 395 (1950) (customers may become absorbed in inspecting merchandise or from observing distracting displays that have been created to get their attention, and which have the additional effect of removing the customer’s attention from the floor where hazards may otherwise exist). Third, under the Restatement of Torts, 2d, § 343A, as adopted in Minnesota, a duty to warn exists even as to a known hazard if the owner of property should know that a user may be distracted or forget about the hazard (The possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. The possessor is not relieved of the duty of reasonable care which he owes . . . to take . . . reasonable steps to protect [an entrant] . . . , against the known or obvious condition or activity, if the possessor has reason to expect that the invitee will nevertheless suffer physical harm). Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor had reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. Restatement (Second) of Torts § 343A (1965), Comment f.
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Wrongful Death
Under Minnesota law, an action for the wrongful death of an unborn child can be brought under Minnesota’s wrongful death statute, M.S.A. §573.02, which provides:
When death is caused by the wrongful act or omission of any person or corporation, the personal representative of the decedent may maintain an action therefore if he might have maintained an action, had he lived, for an injury caused by the same act or omission.
Minnesota case law has extended this language to include unborn fetuses. In Verkennes v. Corniea, 38 N.W.2d 838 (Minn. 1949), the Minnesota Supreme Court considered whether the estate of an unborn infant, which died prior to birth as a result of another’s negligence, has a cause of action under the wrongful death statute. The court cited the dissenting opinion in Allaire v. St. Luke’s Hospital, 56 N.E. 638, 641 (Ill. 1900) stating, "if the unborn child reaches the prenatal age of viability when the destruction of the life of the mother does not necessarily end its existence…it would be so far a matured human being as that it would live and grow, mentally and physically" then the administrator may recover for the wrongful death of the fetus. Verkennes 38 N.W.2d at 840.
Following Verkennes, in Pehrson v. Kistner, 222 N.W.2d 334, 335 (Minn. 1974), the mother of an unborn fetus was 6 months pregnant when she was involved in an automobile accident. The child was stillborn several days after the accident, and during the trial the jury found that the child had died due to the negligence of the defendant. Id. The court found that this fetus was found to be "a viable, fully developed child who was capable of sustaining life outside her mother’s womb at the time of her death." Id. The court stated that the clearly stated rule in Verkennes allowed a fetus to recover for wrongful death when the fetus was a viable child. Because the fetus in Pehrson would have been able to live outsider her mother’s womb, the fetus was viable. When there is no question about the unborn child’s viability or ability for a separate existence, the courts will allow recovery. Id. at 336. As the court in Pehrson stated, "it is difficult to visualize a case where a human being does not have some monetary value in addition to special damages incurred by next of kin." Id.
The heirs of an unborn fetus can recover for the wrongful death of that fetus if they can (1) show that the fetus was viable at the time of death, and (2) was capable of separate and independent existence. The state courts have found that the family and heirs of an unborn fetus can recover for damages under the wrongful death statute when there is uncontradicted evidence that unborn decedent was capable of living outside of mother’s womb. Pehrson 222 N.W.2d at 336. If this can be shown, the heirs of the unborn child will likely recover.
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