Johnson v. Washington County

pursuant Board Responsibility $750 fessional Lawyers 24(a), Professional on Rules

to Rule

Responsibility. That, if this court reinstates and when

3. place respondent shall the court

respondent, period public probation supervised conditions to be deter- yeárs, pursuant by the court.

mined

BY THE COURT: Coyne M. Jeanne

/s/ Coyne

M. Jeanne

Associate Justice JOHNSON, M. as Trustee for

David Kin of Mau

Heirs and Next of Deceased, Respondent, Johnson,

rice (C6- COUNTY, Appellant

WASHINGTON 92-2406) (C8-92-2472), Respondent Washington School

South (C6- 833, Respondent District No. (C8-92-2472). 92-2406), Appellant C6-92-2406, C8-92-2472.

Nos. Appeals of Minnesota.

Court of

Aug. 25, 1993.

Review Oct. Granted Paul, Nyvold, Thirty-seven Gray Earl P. and Mark Saint trip. children went on the Be- Johnson, taking daycare M. as Trustee for the fore trip, for David staff did not Kin swimming ability; Heirs and Next of of Brandon Maurice test the children’s Johnson, Deceased, respondent. upon relied the children to tell them their swimming ability. The staff told the children Chadwick, Minneapolis, Richard J. stay to select buddies buddy with their (C6-92-2406), Washington County, appellant at all times. The children were divided into (C8-92-2472). respondent groups supervision, four and Brandon Jr., Hayes, Eagan, Lawrence J. for South group. was Natasha Dalum’s Washington County School Dist. No. (C8-92- (C6-92-2406), appellant respondent The bus arrived at the Park Reserve at 2472). out, p.m.. got about 1:35 When children stay the staff reminded them to with then- NORTON, and decided Considered Daycare buddies. testimony staff indicated P.J., FLEMING,* and KALITOWSKI and water, that once the children were in the JJ. keep were difficult to track among of approximately the three hundred other chil- OPINION pond. in dren the NORTON, Judge. p.m. by Brandon was last seen at 1:50 jury appellants Independent found Kerry Keyser, daycare employees, one of the Washington District No. and School who saw portion the shallow of County negligent wrongful in the death of a swimming Keyser the area. told Brandon to Appellants challenge judgment in child. the 1:55, buddy. safety find his At a break was respondent favor denial of and the of their called and staff members took a count of the post-trial motions. affirm the verdict groups. children in their When Dalum no- District, against reverse the verdict present, ticed Brandon was not she started against County, immunity because it has inquire of other staff members. Mean- claim, wrongful from this death and remand while, Crane, lifeguard, the head Colleen ob- pre-verdict recalculation of interest. Brandon, description tained a found out seen, where he was last and to the went FACTS lifeguard lifeguards. shack to tell other 14, 1990, seven-year On June old Brandon organized people Crane then to form a daycare and Johnson his class went swim- swimming human chain to walk across the Reserve, ming at Lake Elmo Park where fragmented area. The chain into several appellant Washington County (“County”) later, parts. About ten minutes another swimming pond built and maintained complete organized human chain on was has a sand beach and bottom. Al- sand found, sweep, the first Brandon was sub- filtered, though pond water is it remains merged in about four feet of water. About cloudy, making possible it to see twenty gone by minutes had since Brandon swimming one foot below the surface. The reported missing. was roped swimming area was not off on based 14, 1990, ability. June there were On five father, respondent Brandon’s David John- lifeguards duty, supervised by a head son, trustee, County as sued the District and lifeguard, Colleen Crane. death, alleging negligence. The verdict, daycare provider appellant jury, by special Brandon’s was found the District Washington County negligent County District and the South School was 40% was 60% (“District”). daycare negligent. jury respondent No. 833 Four District awarded $1,007,857.84. employees planned the and were to The trial court trip su- denied pervise the children at the Park Reserve. District’s motions for new trial and remitti- * Const, court, VI, judge serving pointment pursuant Retired of the district as to Minn. art. judge Appeals by ap- of the Minnesota Court of areas, exempting municipality County’s JNOV recreation

tur, motions for liability for: Novem- Judgment entered on was new trial. $200,0001 awarding respondent

ber construction, [a]ny upon the claim based $928,801.07 from the any operation, property or maintenance $807,857.84 damages District, including municipality that or leased is owned $111,354.07 in interest. or used as a intended be pur-

park, open as an area for recreational ISSUES for the of recreational poses, provision or * * * if claim arises from a services according err I. Did the court park and recre- loss incurred a user of Washington County tort under (1988)? property Nothing ation services. this subd. 6e Minn.Stat. liability a munici- limits the subdivision by denying the trial court err II. Did conduct entitle a tres- pality for that would grounds on the appellants’ new trial motions private per- passer against of evidence? improper admission son. final ar- Did counsel’s III. 6e warranting a gument constitute misconduct new trial? Respondent’s against the claim County’s operation and mainte based on the by denying Did the trial court err IV. of the Elmo Preserve. nance Lake The by appellants’ denying remittitur “property pond Lake Elmo is Preserve’s grounds the trial motion on the * * * intended or to be used as a were excessive? n * * park provision for the of recreational by awarding Did the trial court err V. Moreover, respondent’s Id. claim services.” pre-verdict interest on the School District’s park. Ac arose from Brandon’s use of the portion judgment? of the cordingly, County the immune from re is spondent’s claim unless its conduct “would ANALYSIS trespasser damages against a a entitle to person.” private Id. County’s Immunity I. Tort County argues The the trial court general The standard of care for failing immunity by to accord it erred applies accompanied by trespassers ato child agree wrongful the death claim. We in the Lake Elmo Preserve. See Si adults reverse.2 Resources, State, Dep’t rek v. Natural 496 of (Minn.1993) Except specially (applying 811 for enumerated limita- N.W.2d the Act3). tions, municipalities A are for their Minnesota Tort Claims landowner liable torts. trespasser § following 466.02 The statute lim- liable to a under the Minn.Stat. is municipality’s liability parks a tort circumstances: its County’s defining general duty by liability the 1. trial court limited the 3.In owed state The 466.04, visitors, (1988), pursuant agencies park § 1 to Minn.Stat. subd. to state the Minnesota provides against municipality an grants by a immunity pro- Claims Act limited Tort $200,000 state, exceed the claim is not when one viding agencies, employ- the that its and its by of death act or omission. ees are not liable for arising a loss incurred a user Respondent pre- failed to contends the construction, operation, of or maintenance the immunity appeal. serve the issue for While it * * * except system that outdoor recreation (1988) is true Minn.Stat. 466.03 contains 17 entitle state is liable conduct that would a liability, exceptions municipality’s only ato tort for private person. trespasser damages against a 6e, subdivision entitled "Parks and recreation 3.736, 3(h) (1992), quoted areas,” subd. pertinent is to this case. Id. Given that Sirek, added). (emphasis state, N.W.2d at 809 The County's pleading a Minnesota is notice supreme emphasized court’s of the construction allegation respondent's in its that answer claim Sirek, language in similar to the lan though which is barred even is section 6e, guage citing in section controls specifically, provided our subdivision 6e re- spondent analysis immunity with issue. sufficient notice. (1) knows, dangers: pond land who or from three hidden possessor was not know, (2) knowledge roped according swimming ability; should off facts within his buoys placed trespassers constantly upon intrude to mark water that outlets at the land, subject liability pond’s is bottom led swimmers to believe limited area of (3) depth; lifeguard’s bodily harm to them an indicated in- caused land, eptness expected could not be if be discover- artificial condition of the ed. (a) the condition (i) possessor is one which the has creat- disagree and conclude the Lake ed or maintains and pond Elmo Preserve is not an artificial condi (ii) is, knowledge, likely to to his cause precludes giving tion that tort bodily harm to such death or serious “Changes under section 466.03. trespassers and natural environments do not create an ‘artifi (in) that he rea- is of such nature has cial’ condition where the affected terrain du trespassers son to believe that such will State, plicates Henry nature.” it, and not discover (Minn.App.1987), pet.

(b) possessor (Minn. has failed to exercise 12, 1987). Aug. pond rev. denied trespassers care to warn such reasonable only deep, gradually sloping six feet has a bottom, of the condition and the risk involved. drop-offs sand and has no or unusual Further, unlikely currents. it is the lack of (Second) (1965); Restatement of Torts ropes presence buoys or the will them Sirek, (applying see also 496 N.W.2d at 810 selves harm cause death serious to tres 335). standard, section Under this the Sirek Moreover, passers. the conditions at court stated a landowner Lake Elmo Preserve are not of such a nature failing will be liable to exercise trespassers will fail to discover them. trespassers reasonable care to warn (Second) See Restatement of Torts hidden, dangers artificial created or main- Sirek, 335(a)(ii), (iii); § 496 N.W.2d at 812 by tained the landowner. The landowner (recovery only where the condition duty no to eliminate has these conditions non-obvious); is hidden or otherwise Lee v. from the land in order to accommodate Resources, State, Dep’t Natural trespassers give adequate but to them (“artificial (Minn.App.1991) N.W.2d however, warning. doing, In so land- pose condition must an unreasonable risk trespassers to owner is “entitled assume that children will not discover or will not preparation will realize that no has been risk”), pet. realize it is a rev. denied will, reception made for their there- (Minn. 10, 1992); Feb. see also Restatement fore, alert be the to observe the condi- (1965) (no (Second) j § i of Torts 339 cmt. & upon tions which exist the land.” duty prevent dangers of landowner Sirek, (citations omitted). at 810 children). Accordingly, the are obvious to County The trial court denied the immuni- improperly failed to accord the trial court ty County because the “created an artificial wrong County immunity swimming lifeguards hole and then hired ful death claim. * * * people swimming.” to watch over the heightened argues Respondent argues the Respondent the elements of section trespassers applies Specifically, care for child 335 are satisfied. he contends standard of disagree. We pond the was an artificial condition that had to these circumstances.4 likely trespass, trespassers to know that children are 4. The standard for child is found in (Second) (1965): Restatement of Torts (b) possessor the the condition is one of which liability possessor subject of land is he or has reason to know and which knows physical trespassing harm to children thereon realize will involve an un- realizes or should upon caused an artificial condition the land bodily harm reasonable risk of death or serious children, if (a)the to such (c) place youth where the exists is one do not condition the children because of their upon possessor or realize the risk in- or has reason discover the condition knows adults, letter- were written on District The letters accompanied are children When case, head, employee negligence and unsat- in stated in this daycare providers like grounds termi- isfactory performance not as unsupervised children are places where nation, subject Director of found, signed were the landowner is customarily circum- Community of care owed to general standard Education. Under to the (Second) stances, acted within its dis- trespassers under Restatement the trial court higher than the standard letters. by admitting 335 rather the termination Torts cretion (Sec- children under Restatement owed to Second, the trial the District claims Sirek, ond) § 339. of Torts See improperly admitted evidence of Wolf- court of care enunciat- at Hence the standard drowning. Brandon’s gram’s conduct after proper in this case. in section 335 is ed proceed During employment termination her sense, liability imposing tort In a broader ing, Wolfgram lied and told the District she County swallow the on the this case supervisor to discuss could not meet with her legislature sec- envisioned incident because she had doctor the June subject mu- subd. 6e. It would tion occasion, she appointment. a different On liability” nicipalities “practically unlimited meeting to avoid with hid the bathroom many city parks. require “ehildproofing” attorney. con the District’s The District Sirek, Therefore 496 N.W.2d at 811. See Wolfgram’s conduct is tends evidence public policy also buttresses our decision. relevant, relevant, unduly preju if it or is im- we conclude the Because dicial, be and therefore a new trial should case, liability do not mune from in this we granted. disagree. question whether Minn.Stat. address the her lack of Wolfgram’s conduct showed (1988) subd. 1 restricts Coun- credibility; of her conduct thus the evidence $200,000 $600,000in ty’s liability to dam- properly admitted under Minn.R.Evid. was Similarly, holding that the ages. our 608(b) to be examined which allows a witness liability moot the is immune from renders specific instances of untruthfulness. County’s argument that insufficient evidence inference, during By Wolfgram’s conduct her supported jury’s finding that its conduct proceedings im- employment termination caused Brandon’s death. peached credibility of her statements Evidentiary Rulings II. acting negligently. The which she denied Wolfgram’s jury could have inferred from challenge Appellants three evidentia- negli- aware of her conduct that she was evidentiary ry rulings. Rulings questions very testimony— gence. There was little discretion are within the trial court’s sound transcript con- only pages two of her that discre and will be reversed when —about probative of this evidence duct. The value clearly tion abused. Jenson v. has been substantially outweighed danger unfair Co., 720, of 725 Touche Ross & 335 N.W.2d (Minn.1983). See Minn.R.Evid. Under prejudice. circumstances, say we cannot the trial First, argues the District the trial by admitting court abused its discretion evi- by admitting termination court erred three Wolfgram’s dence of conduct. letters written the District to Natasha Third, Dalum, Cadalbert, and the Sandy the District Heidi Wolf- of Kristina Johnson’s letter gram. disagree. trial acted claim admission The court requires a to reversible error and admitting within the letters amounted its discretion trial. The letter outlined the emotional party as Minn.R.Evid. new admissions. See 801(d)(2)(statement grief par and her hearsay if that Kristina is not offered distress statement). learning experienced upon that Brandon against party party’s ents and is own (e) coming possessor intermeddling fails to exercise reasonable volved in with it or in it, dangerous by danger within the area made care to eliminate the or otherwise (d) maintaining utility possessor of protect the children. eliminating the condition and the burden of danger slight compared with the risk are as involved, to children

639 deep letter also recounted was one foot taller than Brandon —in drowned. The had lingering feelings however, A parents’ transcript, her water. review of the Kristina’s and respondent’s death. At the end of grief closing over Brandon’s shows trial counsel at letter, argument inferring Keyser Kristina advised children not to made statements for the death of a loved negligently buddy blame themselves told Brandon to find his Keyser helping one. instead of herself Brandon missing buddy. ultimately find his primarily with Krist- the letter dealt While Keyser left the area where had been and was death, it reaction to her brother’s also ina’s juries found four feet of water. Given Brandon; relationship showed her close with are to draw reasonable inferences described Brandon as “someone re- Kristina evidence, see Johnson Lorraine ally my gone close” and “brother forever.” Inc., 279, Apartments, 273, Park 268 Minn. provided The letter therefore evidence of 758, (1964), respondent’s 128 N.W.2d 762 relationship with Bran- Kristina’s excellent argument, supported by counsel’s which was don, provides support for future eco- evidence, circumstantial does not amount to may nomic harm Kristina suffer from her reversible error. Tiedeken, brother’s loss. Tiedeken v. See 909, (Minn.App.1985) 363 N.W.2d Second, argues respon the District (“wrongful compensate death action is to improperly questioned dent’s counsel Dalum dependent upon the decedent for eco- those why daycare she was reinstated as a suffered”). Moreover, nomic harm supervisor pretrial In pro with the District. prejudice arising from the letter tem- was ceedings, scope the trial court limited the pered by the trial court’s instruction to the examination into Dalum’s termination hear jury sympa- based on Nonetheless, ing. in counsel Co., thy. Lampert Flatin v. Lumber See quired whether Dalum had been reinstated 577, 3, 783, Minn. 580 n. 215 N.W.2d n. 3 superiors because she had blamed her (1974) (jury presumed to follow the trial inadequate training preparation. While instructions). court’s Under these circum- acknowledge propriety we of counsel’s stances, the trial court acted within its dis- questioning suspect, was we cannot conclude by admitting cretion Kristina’s letter. that the trial court abused its discretion Attorney III. Misconduct denying the District and the a new question granting The of a ground. trial court on this sus attorney governed trial for misconduct is objections, tained the District’s Dalum did rules, wholly no fixed but rests almost question, not answer the and the District’s within the trial court’s discretion. Wild v. request counsel did not a corrective action. 419, 433, 775, Rarig, 302 Minn. Third, respon the District claims (1975), cert. denied U.S. 96 S.Ct. closing argument improperly dent’s counsel’s pattern 47 L.Ed.2d 307 sought punitive damages respon to award repeated attorney misconduct necessi closing argument, respon During dent. trial, no tate a new even where one incident dent’s counsel characterized the District and sufficiently prejudicial require be to a would “indecent,” County’s “despicable,” conduct as County Ramsey, new trial. v. 277 Nadeau immoral,” on the crimi “almost and “borders (Minn.1979). 520, primary 524 “The N.W.2d Respondent’s nal.” trial counsel also told the determining consideration in whether to million, jury they figure if a like $1.5 grant prejudice.” Rarig, a new trial is 302 “perhaps there will be no more Brandon 433, Minn. at 234 N.W.2d at 786. might listening people start to Johnsons Appellants argue three incidents of jurors despicable who hear cases like this.” attorney misconduct warrant a new trial. requires argues this misconduct The District First, the District contends trial a new trial. improperly argued during closing ar counsel damages Punitive are not gument Kerry Keyser, one of the Dis that municipalities. against districts and employees, sent Brandon to his death school trict’s (1988). 466.04, 1 buddy subd. Re- by requesting he look for his See Minn.Stat. —who 640 (1988) (dam- during See MinmStat. subd. statements clos-

spondent’s counsel’s limited to the very ages to the level of death are come close ing argument death, granting resulting “pecuniary warrants new loss misconduct to the remarks seem for the exclusive benefit of the sur- particular, In shall be trial. kin”). and the Coun- dis- punishing viving spouse the District and next of We focus on conduct; outrageous properly and reckless ty agree. The trial court instructed for its Nonetheless, proper. pecuni- punishment jury compensation such to award jury counsel, trial court instructed given guidance, that the ad- ary loss based on the damages punish purpose of is not to vice, that the Bran- protection assistance defendants, given court’s standard of this parents given his and his don would have review, properly the trial court Practice, we conclude 451.1 sister. Minnesota CIV JIG by denying appel- its discretion exercised to calcu- precise No formula exists trial motions. lants’ new trial value of these losses. The late the very testimony close and evidence shows the Damages Excessive IV. loving relationship Brandon had with his Moreover, con The District and the trial parents and Kristina. by failing grant erred tend the trial court jury dam- court instructed the not to award damages. a new trial based on excessive ages sympathy. Accordingly, we based on not interfere with a trial This court will say cannot that under the circumstances on the court’s denial of a new trial motion by declining its discretion trial court abused damages grounds of excessive unless there damages grant a trial for excessive a clear abuse of discretion. has been to order remittitur. 344, Buege, N.W.2d McPherson v. Similarly, (Minn.App.1984). a motion for re- V. Pre-verdict Interest within “the sound discretion of mittitur rests The District contends the ruling will not be dis the trial court whose by awarding pre-verdict interest court erred appeal in the absence of a clear turbed on agree respondent. and remand abuse of discretion.” Newmaster Mah opin proceedings with this further consistent mood, (Minn.App.1985). pecuniary ion. Pre-verdict interest on dam determining In whether a verdict is ages computed from the date the shall be excessive, the court must consider evi case commences. dence, circumstances of the demeanor and 1(b) (1988). However, “except as otherwise McPherson, parties. 360 N.W.2d at 347. law,” pre- provided by or allowed contract setting as exces “The test for aside verdict be awarded on verdict interest shall not sive is whether it shocks the conscience.” damages. judgments for future Id. Independent Dist. No. Verhel v. Sch. $94,- respondent trial court awarded (Minn.1984). 579, 591 “The trial pre-verdict interest from the Dis- 200.22 plaintiff high court must leave the with the however, interest, on the trict. It awarded permissible under the evi est dollar verdict $807,857.84award and did not deter- entire Newmaster, dence.” 361 N.W.2d at 133. portion of the verdict constituted mine what grounds We do not find sufficient facts, damages. we re- future Under jury damages by the conclude the awarded trial court to recalculate the mand to the It are excessive as a matter of law. is true interest on the interest award to exclude jury gener found were represents future portion of the verdict that ous, beyond scope but were not damages. verdicts for children. See death Park,

May City v. Grosse Pointe DECISION (1982) 295, 411, 412 Mich.App. 332 N.W.2d (over according erred not damage The trial court one million dollar respondent’s wrong- boy). 13-year-old Appel estate of deceased lants, however, ful It acted within its discretion argue the award exceeded death claim. trial motions on “pecuniary by denying appellants’ new reasonable amount of loss.” improper admission of evi- grounds of respondent’s Minnesota, improper Respondent, and conduct dence STATE of properly trial court court counsel. The trial v. for remitti- the District’s motion denied both its new trial motion excessive tur and CASTELLANO, Appellant. Leo erred, however, by awarding It damages. No. C4-93-356. we damages on future remand interest in interest accor- proper calculation of Appeals of Court of Minnesota. dance with our decision. Sept. part, part in Affirmed reversed remanded.

FLEMING, (concurring part, Judge dis- part).

senting in majority on all agree with the issues

I attorney’s respondent’s

except whether mis- respectfully I

conduct was reversible error. issue would remand for a

dissent on this trial, particu- Throughout the but trial. argument, respon-

larly during closing his attorney inappropriate and trial made

dent’s

inflammatory impar- made an comments that impossible. See Sievert First

tial verdict Lakefield, 409, 416 Bank in

Nat’l (“pattern repeated

(Minn.App.1984) attor- trial, a new

ney misconduct necessitate no one would be suffi-

even where incident

ciently prejudicial”). attorney’s

Respondent’s characterization 14, 1990,

appellants’ conduct on June as “de “indecent,” immoral,”

spicable,” “almost “gross negligence” im

bordering on criminal pun

properly implied appellants must be death.

ished for Johnson’s See (1988) (punitive permitted against school dis municipalities). comments

tricts and Other attorney impermissibly

by respondent’s prejudice of sympathy

evoked Tiedeken, 363

jury. Tiedeken v. See (Minn.App.1985)(damages wrong pecuniary action are limited

ful death circumstances,

loss). I believe Under at aggregate effect of remanding

torney’s misconduct warrants against Washington

a new trial South District.

School

Case Details

Case Name: Johnson v. Washington County

Court Name: Court of Appeals of Minnesota

Date Published: Oct 25, 1993

Citation: 506 N.W.2d 632

Docket Number: C6-92-2406, C8-92-2472

Court Abbreviation: Minn. Ct. App.