*1 STRINGER, individually Kelci and as Representative
Personal of the Estate Korey Stringer, and as Trustee for Korey
the Heirs and Next-of-Kin
Stringer, Stringer, Minor, and Kodie
through his Parent and Natural
Guardian, Stringer, Cathy Kelci
Reed-Stringer Stringer, and James
Appellants,
MINNESOTA VIKINGS FOOTBALL
CLUB, LLC, and Fred Zamberletti Osterman,
and Chuck Barta and Paul
Respondents, Tice,
Dennis Green and Michael and W. Knowles, M.D.,
David and Mankato
Clinic, Ltd., Burns, M.D., and Sheldon Fischer, M.D.,
and David and Ortho
paedic Consultants, P.A., and Edina
Family Physicians, professional as
sociation, through 30, and John Does 6
Natural Persons or Entities Whose
Names or Identities are Unknown to
Plaintiff, Defendants. A03-1635,
Nos. A04-205.
Supreme Court Minnesota.
Nov. *2 Waite, DeMarco,
Stanley Chesley, Paul LPA, Co., Schneider, Chesley Bayless & Cincinnati, OH, Diane Magnuson, Eric J. Bennett, LLP, Bratvold, Rider Richard B. LeNeave, Hunegs, Hunegs, G. Randal W. the workers’ Stone, LeNeave, Thornton, P.A., system, & eoemployee Kvas which has restricted MN, White, liability in Minneapolis, negligence part Kenneth R. Kev- actions. As *3 Green, P.A., MN, analysis, our Mankato, in O’Connor we must determine whether prior case law immuni- Appellants. ty applicable to the facts case of this O’Neal, Jones, Amy A. Bruce James G. determining when whether Osterman and Freestone, Benson, LLP, R. Faegre & Korey Stringer per- Zamberletti owed MN, Minneapolis, for Respondent. and, duty, sonal if there awas wheth-
er grossly Osterman and Zamberletti were negligent duty. in performing that We personal duty conclude that test OPINION applicable, but that Osterman and Zam- Korey Stringer berletti did owe a per- ANDERSON, H., PAUL Justice. Therefore, duty. sonal the district court Korey Stringer, highly respected granted summary judg- did not err when it Vikings member of the Minnesota football affirm, grounds ment. but on We differ- team, died of heat stroke after the second ent from those articulated the court of day of practice Vikings at the 2001 training appeals. camp. Stringer, Korey Stringer’s Kelci August Korey Stringer, On wife, representa- trustee Pro Bowl offensive tackle the Minneso- Korey of Stringer, tive the estate of ta Vikings, complications died of from heat brought a wrongful against death action Stringer collapsed stroke. after the morn- respondents in Hennepin Dis- County ing practice on second of day training trict The respondents Court.1 moved Mankato, camp Minnesota. His core summary judgment. The granted court body temperature, when first measured respondents’ motion and dismissed the ac- Joseph’s Hospital Immanuel St. Manka- against tion them. The Minnesota Court to, degrees was 108.8 F. Appeals of appeal, affirmed. On we must Day Training Camp First of determine whether Kelci Stringer can genuine show the existence of issues of Stringer reported Vikings train- material Vikings’ fact that Paul employees ing Sunday, camp on July 2001. At a Osterman and Fred Zamberletti are not meeting team evening, head athletic immune from liability. To briefly trainer Charles Barta2 spoke to the determination, make this we must address team making members about heat and the interaction between common tort plenty law sure drank fluids. The Stringer brought against 1. Kelci briefing, 2. Following suit but before the schedul- Vikings, Vikings employ- ing argument, Minnesota several respondent oral Chuck Bar- ees, Vikings physicians. and several The dis- ta requesting submitted a motion his dismiss- against trict court dismissed the appeal counts most al ground from this on the only Stringer appeal, defendants. In this no raised issue as to Barta that Club, LLC; Vikings possibly Minnesota Football Fred could result in reversal court Zamberletti, services; appeals’ affirming coordinator medical summary judg- decision (Chuck) Barta, trainer; Charles Stringer opposed head athletic ment in Barta's favor. Osterman, trainer, and Paul assistant athletic we motion and deferred action motion and, these, respondents remain as light Kelci until this case was resolved. case, presents states that she now one decision deny reached in this Bar- gross negligence against claim of ground Zamberletti ta’s motion on is now and Osterman. moot. Already inside the trailer were Fred instruc- any written did not receive players Zamberletti, against heat-related of medical ser- guarding coordinator tions about Osterman, illnesses. Paul Vikings; vices for the trainer3; Vikings assistant another Korey leading to chain of events told Zamberletti team member. Barta on the to start Stringer’s appears death Stringer had and that vomiting been July July day practice, first him to “cool brought he trailer humidity day high heat and easy.” then left down” and “take it Barta during of at least a heat index day, go practice. On that first the trailer back practice. afternoon an afternoon morning and there was a stated that observed Zamberletti *4 players did wear where the practice he and did not believe that was Stringer morning prac- gear. full Before the their sitting he lot of because was distress tice, an Stringer told Barta that he had upright edge at the the examination String- Barta upset stomach. listened Knowles, Mankato table. Dr. David W. “jumpy” he that was self-diagnosis er’s provided medical services physician who Turns, him some an antacid. Before gave Vikings, soon after and for the arrived gave String- Barta practice, the afternoon member, Vikings examined the other team electrolyte sup- with an er some Gatorade Stringer. but he did not examine Oster- Stringer Barta knew that plement because Zamberletti, man, and Barta all testified problems” from “heat-related had suffered Stringer was was frustrated that he the result previous training camps. As Monday prac- taken out of the afternoon illness, Stringer re- heat-related had tice. intravenously least once ceived fluids trailer that afternoon Stringer left the training camp. previous examining Dr. anyone him. without afternoon 45 minutes into the About July 30 stated report Knowles’ Vikings Stringer vomited twice. practice, an exhaus- Stringer episode “had heat String- coach Tice told offensive line Mike during training camp. He tion afternoon practice and called Barta er leave following rest without incident recovered lis- Stringer. again look at Barta over to Kear- Athletic intern D.J. hydration.” he Stringer’s self-diagnosis that tened to bring him to ney Barta instructed said him the feeling brought anxious and was dormitory Stringer’s some Gatorade Stringer trailer after vomited on-field following morn- evening. room that deposition in his third time. Barta stated he July Stringer how ing, Barta asked Stringer to consume some that he told on the Stringer’s weight felt and checked he not monitor whether liquids, but did Stringer weight chart4. Barta said that anything. Stringer drank death, practice. No moni- Korey Stringer's and in the afternoon after Oster- 3. At the time registered they weighed an toring was certified or as ensure that man was done to although completed a he had they weighed athletic trainer requested as themselves 4-year degree program, testing, and other Stringer’s their uniforms. themselves out of requirements registra- for certification and during weights weight showed that his chart certified as an ath- tion. Paul Osterman was July camp were as follows: 30 a.m.—336 regis- August letic trainer on pounds; July July pounds; p.m. 30 —330 Board of Medical tered with the Minnesota he pounds. Barta said that consid- a.m.—332 January Practice gain two-pound weight over- Stringer’s ered Stringer practice. night acceptable to be weigh 4. Team members were instructed practice morning themselves in the before stomach, replied upset that he had In his deposition, initially Osterman okay. monitoring that he felt Korey No other stated that “saw getting up he Stringer was done.5 ground after kneeling on one knee.” Osterman Stringer later stated that was Day Second Practice flat lying on his back when he first arrived July day practice, the second and that he not know long String- did how day high also a and humidity. heat er lying Kearney had been there. also morning practice began approximately initially String- confirmed that he had seen wearing 8:45 a.m. with the full players lying er photogra- flat on his back. The gear. The already heat index was almost pher, previously who had String- observed morning practice began.6 90 when the er, Stringer lying saw on the football during morning Sometime practice, field and estimated that he lying there vomited he Stringer again, but continued Although for about five oth- minutes. two participate photogra- A practice. er Stringer witnesses said that had been pher noticed that appeared be minutes, moaning or groaning several struggling during practice and was him. Osterman said not heard drenched with sweat.7 At about 10:30 *5 Osterman Stringer testified that he asked a.m., ankle, Stringer an turned which Bar- doing, Stringer how he was ignored but taped. Stringer ta prac- then returned to him, again got and up any without assis- testimony tice. Witness indicates that Stringer “big tance. went to bag,” hit practice, Stringer during either fell to his time, it one and then headed toward the once, ground knees to the than more Stringer sweating, trailer. was but Oster- getting up by each himself time. man did not remember details about Shortly main morning practice after the what Stringer wearing sweaty was howor a.m., at approximately ended String- 11:15 he was. knees, er dropped right fell to his Inside the Trailer side, and then threw his hands over his Osterman though said that even lay head and on he his back. Osterman and thought fine,” Kearney Stringer “doing was he Vikings player heard another call brought Stringer to the only “Trainer.” Osterman was air-conditioned athletic remaining “preventive” trailer as a trainer on the measure. field that time. Oster- Stringer “jogged” Barta had man testified that given Osterman cell to the phone trailer, and told him to call but a any- Vikings Zamberletti “if teammate that stated up.” thing gave Stringer jogged comes Barta couple Oster- of steps and numbers, man a list phone which then includ- walked to the According trailer. ed Osterman, Dr. Knowles’ number and an passed ambulance about five minutes be- service. tween the lying time he on Stringer saw n Department 5.The Respondents Minnesota 6. acknowledge Labor and that a of 11 total (MDLI) Industry inspected the Mankato train- Vikings players were treated for heat-related ing facility Vikings’ safety provisions and July illnesses on 2001. place July that were in and provisions The MDLI concluded that "no Included in the are record articles written Occupational Safety Minnesota and article, According about heat stroke. to one by Health Act or its standards were violated heavy heat exhaustion is associated with Vikings during July 30 and 2001.” article, sweating. Another written one of The MDLI did nevertheless make rec- some respondents’ experts, vomiting that states Vikings reducing "for ommendations early warning sign impending can be an monitoring and the effects of heat and humid- heat stroke. ity players." Stringer. pick up cart Osterman said the time entered the ground and Stringer are that and he room training trailer. Estimates waited call the the trailer about Osterman entered “they’re pretty busy practice because after * * .* 11:20 a.m. and, really there wouldn’t have been to come anyone around out before that” testimony was that when Osterman’s because he not think this did was trailer, “jumped he Stringer was inside the emergency. got off Stringer the table and up” on one of the tables. Osterman said on the lay again. It down floor Osterman appears he how he was. Stringer asked re- Stringer Stringer’s did not ice towel to applied from the record least one About spond question. forehead, to Osterman’s five pushed but Stringer away and later, Kearney also entered the minutes golf reapply Osterman did not it. The cart Stringer even trailer with some water for came about five ten minutes after Oster- Barta, according though, Gatorade. placed training man the call to the room. bags already ice inside the trailer. were arrived, the golf cart Osterman When Kearney No one else left soon thereafter. Kearney get Stringer up, tried to drank Stringer in the “one trailer. unresponsive. he was Osterman testified sips” of the water. Osterman said two n Kearney get him that he instructed Stringer’s he skin determined to get some ice towels and Zamberletti. “just then “cool and moist”8 and he Kearney stated that “knew there was him relax” for between five and kind let right something not about the situation” ten minutes. because was not responding got passed, Stringer time had After this *6 having difficulty to appeared moving. be floor. He off the table and moved on Kearney Stringer and Osterman rolled asked Osterman remove his shoes and said, “I was kind his side. Osterman tape and cut the from his ankles. socks sign confused because that was first Stringer did so said that Osterman something going wrong.” Oster- was him, but did not recall thanked Osterman this was the time man also said that first Stringer saying anything else rest any Stringer’s signs, vital he checked he the time while the trailer and did pulse. String- as his said such Osterman Stringer questions. ask other Oster- “normal”; Stringer pulse man also said that drank some was his was breathing er’s water, sips slow, more but he did not know he steady but did not count the later, Stringer much. A bit moved how not have a per minute. He did beats humming began back table and think thermometer and did not to check his head back and forth.” He “bopping Stringer’s He also temperature. did behavior for ten continued this another Stringer’s pressure. ap- blood He take minutes or more. plied Stringer. ice towels to Neither two Kearney an' ambu- Osterman nor called train- then called the athletic
Osterman golf up point. lance to this ing room to have someone come with Osterman, ing warning signs impending According be important it was can also mojst Moreover, Korey Stringer’s dry skin was cool and while hot and heat stroke. stroke, training that a because from his he learned symptom can be a of heat it not skin person suffering stroke who was from heat only symptom. symptoms 'can Other in- dry We note from would have hot and skin. fever, confusion, rapid and shallow clude record, however, that chills information in rate, abnormally breathing, an fast heart vom- symptom skin be a of heat and moist can iting, and unconsciousness. seizures^ Dizziness, weakness, and vomit- exhaustion. Knowles, in- Kearney Zamberletti arrived with after conversation with Zamberletti about three to According five minutes. am- structed Osterman to call Gold Cross Osterman, Stringer’s breathing became bulance.10 quicker shallower and as Zamberletti ar- time, own, Kearney, During Kearney Stringer’s rived. also stated that replaced one ice towel that was behind breathing changed had he since the time Stringer’s neck his chest. and another on to get Stringer left Zamberletti. was also Kearney Stringer’s airway also monitored which, groaning, Kearney, in- sounded to make was and heard breathing sure he voluntary. anything say Osterman did not “a lot of saliva.” He fluid or said to Zamberletti and testified that as soon as Stringer’s skin was “cool and moist.” trailer, said, he entered Zamberletti Zamberletti testified that he when “[Stringer’s] hyperventilating.” Zamber- trailer, returned to the he monitored letti any history did not ask for about Stringer’s airway, breathing, and circula- Stringer’s condition, but he instructed tion. Zamberletti testified that at that Kearney put Ziploc bag String- over Stringer’s time he not think did condition er’s mouth because of his belief that Instead, said, was he “I heat-related. hyperventilating. Kearney thought possibility [Stringer] there was a that he bag Stringer’s stated held the over just thought could have I fainted. that he mouth and nose for about one to one and seizure, possibility could have had the of a Kearney one-half minutes. also stated which would have—could have béen done that he Stringer’s did not believe breath- insect bite some medication ing improved bag. as a result of using something.” he taken or trying Ziploc treatment, After bag Hospitalization and Death took Stringer’s pulse Zamberletti and tes- that it real rapid,” tified “was but he did dispatched ambulance at 12:00 not count per the beats minute. noon and at the arrived football field at p.m. paramedics 12:08 put Stringer
Zamberletti testified that then in- briefly backboard examined him. structed Osterman leave the trailer and *7 paramedics Zamberletti that the said did to call for a van. Osterman so did and any questions. ask him trailer, he came Zamberletti when back inside the Zam- not. in Stringer rode the ambulance berletti told him to call Dr. with Knowles.9 hospital. Osterman para- was unable to Zamberletti reach Knowles so observed nurse, he called his taking Stringer’s pressure medics who said she blood page pulse would Knowles. and and Knowles called back he assisted them with suc- about tioning three four Stringer’s minutes later and saliva from mouth. Nei- Zamberletti left the to speak paramedics trailer with ther Zamberletti nor the took Zamberletti, According him. after his to Stringer action cool in when he was testimony Osterman's differs from testimony Zamber- 10. Osterman’s and Zamberletti's timing phone letti’s on the of the calls and differs on which of had them the idea for leaving According Osterman's the trailer. Osterman to call ambulance. Osterman Zamberletti, Osterman was inside the trailer thought said that he first to call an ambulance during the Ziploc bag. treatment back, before Knowles called but Zamberletti Zamberletti also testified he told Oster- stated that he told Osterman to call an ambu- for man call the van before told him to lance after Zamberletti returned to the trailer Osterman, however, call Knowles. testified speaking after with Knowles. that Zamberletti told him to leave in order to Kearney performed call Knowles before Ziploc bag treatment. a grossly negligent as matter of reaching were not Shortly before the ambulance. Vikings vomiting Stringer law. v. Minnesota Foot- began hospital, Stringer Club, LLC, The ambu- 551-52 fluid. ball amount of clear
large Joseph’s at Immanuel St. The court (Minn.App.2004). arrived determined lance p.m. at 12:24 owed Ko- Hospital that Osterman and Zamberletti rey Stringer duty they because unconscious, admission, Stringer was On directly engaged Stringer’s were both minute, per and 148 beats pulse his treatment their actions did care and be deter- could not pressure his blood general workplace safety. Id. not involve took hospital personnel mined. When analogized court the situa- at 550-51. The p.m., temperature 12:35 Stringer’s ordinary tion circumstances when an hospi- degrees 108.8 F. The reading was circum- person charge takes or controls Stringer, bags ice around packed tal stances, creating an thereby affirmative rapid lines infu- intravenous inserted provide care. Id. at 551.11 saline, attempted other meth- sion cooling. Stringer’s As ods assist finding personal duty, Though worsen, hospital condition continued appeals court of did not conclude Ost- attempted plasma, personnel infusions erman’s or Zamberletti’s actions were CPR was drug treatments. dialysis, and men grossly negligent because the two had August 1:20 a.m. on started about Stringer. taken actions to care for some after about finally discontinued said, “[rjespondents’ Id. at 552. court from heat Korey Stringer minutes. died poor judgment lack may actions reflect 1, 2001. August a.m. on stroke 1:50 care, is no basis to of reasonable but there Cause Action respondents disregarded conclude altogether in a risk to manner Korey Stringer’s wife Stringer,
Kelci to a willful and intentional ‘equivalent estate, representative of ” wrong.’ Id. Hennepin wrongful action filed death asserting sepa- County Court District Stringer petitioned Kelci review on Count I included Osterman rate counts. and Zam- the issue of whether Osterman they and asserted each and Zamberletti grossly negligent. Osterman berletti were protect and personal duty care sought cross-review Zamberletti they Korey Stringer’s health and that Korey Stringer issue of whether owed carrying out grossly negligent were both re- personal duty. granted We court personal duty. The deter- their quests for review. did and Zamberletti mined that Osterman *8 duty I. Korey Stringer personal a not owe grossly negligent not were and Summary appropri judgment is Osterman’s and Zamberletti’s granted and evidence, light in the ate when the viewed judgment, dismissing summary motion nonmoving the party, most favorable to against the counts them. is issue of genuine there no shows enti moving party the material fact and of Stringer The court appealed. Kelci as a matter of law. affirmed, judgment tled holding although appeals Seventh-Day v. Korey Minn. owed Odenthal Osterman Zamberletti Conf. of (Minn. 426, Adventists, 429 duty, 649 N.W.2d their actions Stringer personal a employer's of nondele- "arose out appeals of held that Barta actions 11. The court also gable duty to safe work conditions.” ensure Korey a did not owe 686 N.W.2d 551. conclusion that Barta’s based on the court’s 754
2002); employee But an or Minn. R. Civ. P. 56.03. We review any genuine employee’s personal may, de novo there are representative whether circumstances, fact and under bring issues of material whether certain limited application against district court erred its of the eoemployee an action in tort a Way, law. v. Loram Maint. gross negligence. Meintsma latter’s v. Wicken of (Minn.2004). Inc., 434, Morris, (Minn.1995). 95, 438 684 N.W.2d 98 527 N.W.2d 5(c) or weigh 176.061, § We do facts determine Minnesota Statutes subd. credibility of evidence. (2004), affidavits other provides: specifically DLH, Buss, 60, 70 Inc. v. 566 N.W.2d coemployee working A for the same em- (Minn.1997). nonmoving party The must ployer injury liable for a than do more rest on averments denials by employee incurred another unless the of the Minn. R. party’s pleading. adverse injury gross negli- resulted from the Inc., 56.05; DLH, P. see Civ. also gence inten- moving at 71. party N.W.2d has the by tionally coemployee. inflicted burden to show the of absence an issue “coemployee” “corpo- The term includes a Ctr., material fact. Inc. Trade Brookfield officer, general supervisor, rate or fore- 868, County Ramsey, v. 609 N.W.2d Thisius, Dawley man.” v. 304 Minn. (Minn.2000). (1975). 231 N.W.2d Wick- that, en, gross we stated establish Compensation Background Workers’ negligence claim against coemployee, provide necessary To context injured employee must show: analysis, begin with a brief personal duty 1. summary compen Minnesota’s workers’ employee, toward the the breach of system. sation system This is based on employee’s which resulted in the in- compromise employees between and em jury, and that activity causing ployers and involves “a mutual renuncia injury part was not of the coem- tion of rights common law and defenses ployee’s general administrative re- employers employees alike.” Minn. sponsibilities; and (2004); § 176.001 Foley Stat. see injury gross negli- arose from Inc., Honeywell, gence part the coemployee. (Minn.1992). compen Under the workers’ Wicken, 527 at 98. scheme, statutory sation employer “is prong adopted The first test we pay every liable to compensation case in Dawley, Wicken was first articulated personal injury or death an 1975 case that a wrongful involved death arising out of employ the course of against general action a company’s manag ment regard without question 176.021, § er. 304 Minn. at negligence.” Minn.Stat. subd.
(2004). employer’s liability prong The second of the test is based pay place compen “is exclusive and in the amendment to the workers’ liability.” other sation statute. The 1979 Minn.Stat. amendment add (2004). scheme, 176.061, § § 176.031 ed language Under this Minn.Stat. subd. *9 5(c), employee precluded is from a bringing coemployee liability tort bars except damages action for against employer.12 the where coemployee grossly the has been exception employer’s 12. is willfully injured employee There one to an assaulted and the immunity (the tort injury exception”). from actions under workers' “intentional Gunder compensation, 695, employee Harrington, which allows the to v. son 632 N.W.2d 702-03 (Minn.2001). employer employer sue or' his her if the
755
question of law that we review de novo.
intentional
has committed an
negligent or
Co.,
31,
7, 1979,
v.
Fam. Mut. Ins.
3,
Wong
§
American
ch.
1979
tort. Act of June
(Minn.1998).
742, 745
1256,
576 N.W.2d
the 1979
Before
Minn. Laws
amendment,
Compensation
the Workers’
Dawley,
adopted
requirement
the
provision
a
specifically
include
Act did
duty
coemployee
to
a
overcome
immunity. See Minn.Stat.
coemployee
for
immunity
wrongful
in the context of a
(1978).
coemployee
§
In enacting
176.061
company’s general
action against
death
the
1979,
immunity
legislature adopted
in
the
manager. Dawley
a
at a
was worker
sheet
Workers’
rationale
the Minnesota
the
company who
after he fell into
metal
died
Commission, which
Study
Compensation
a
a
solu-
detergent
tank filled with
caustic
allowing
employee
Minn,
that
an
concerned
was
454,
at
tion. 304
231 N.W.2d
simple negligence
for
coemployee
sue
in
plaintiff
Dawley,
the deceased
The
employer
liability
to shift tort
“tends
estate,
company’s gener-
worker’s
sued the
in
in a manner never
to fellow
manager asserting
manager
al
that
the
compensation sys
by the workers’
tended
for
“general
responsibility
had
overall
BenAnav,
Jay
Compen
Y.
Workers’
tem.”
company.
Id.
day-to-day operation”
the 1979 Minnesota
sation Amendments
454,
Gunnett
Girardier
and
527 N.W.2d at
and the
Co.,
632,
70
(Mo.Ct.App.2002).
S.W.3d
638
“general
responsibility
administrative
* * * employment,”
some function of
specific phrase
We did not use the
Minn,
304
at
Dawley,
231 N.W.2d at
scope
employment”
“course and
of
in ei
specific
557.
term
We discussed
“ad-
Wicken;
therefore,
Dawley
ther
it is
Dawley
in
ministrative”
and Wicken be-
important
point
analysis
at
our
that
cause
facts of both of
why
those cases
we elaborate on
we conclude
a
personal duty necessarily contemplates
responsibilities
involved administrative
of
coemployee
that the
must have acted
out
our
managers. But
stated
of
scope
side
his or her course and
of
concerns
Wicken
included
Wicken,
In
employment.
we said a coem- coemployee
personally
not be held
liable
personal
ployee
duty
does not owe
based
for decisions he
required
and author-
“general
on a
responsibility
administrative
ized make
of
part
job
we
of his employment
some function
with
integrity
compro-
“[maintain]
of the
Wicken,
out more.”
personal duty.
officer,
supervisor,
See
The issue in
gross
a
negli-
en-
the 1979 amendments
add
plaintiff,
coemployee/common
the
er
requirement,
it
silent
seeking
gence
was
from
terpriser,
precluded
n
requirement
coemployee
that a
Dawley
the
because
damages from
defendant
personal duty
to an
coem-
already
to receive workers’
had
elected
286-87,
damages.
to be
for tort
ployee
212
liable
Id. at
benefits.
compensation
legislature
in
that
the
dissent concedes
the statute then
463. Under
N.W.
acknowledges
and
that
the
effect,
seek com-
silent
plaintiff
the
could either
requirement
applicable
here. Giv-
pursue
the
employer or
from his
pensation
no action to
legislature
en that
the
took
enterpriser
in tort.
coemployee/common
Kludt,
43,
Minnesota,
that,
49
permit-
ees. Peterson
also
in
15. We
note
(Minn.1982) (holding,
pre-1979
in
against
coemployee/common
amend-
ting
enter-
suit
case,
provi-
the election of remedies
priser had
to do with the restoration
ment
that
more
against coemployees);
employee's
applies
action than with
common-law
to suits
the
sion
286,
Soth,
278,
dis-
holding
coemployee
and
212
the
accountable
Minn.
N.W.
Behr v.
170
1913,
461,
(1927)
couraging neglect
(holding
injured employ-
of duties. Before
464
that
tort action
a common-law
employ-
from
ee could seek
against
party
was not his own
third
who
enterpriser
coemployee/common
or from
er
Compensation
employer.
But
Workers’
both).
true
in 1937 the
It is
but not
1913,
Act,
in
took that action
as enacted
rights
employers
legislature abrogated the
away, providing
reme-
instead an election of
by
employees
not to be bound
to elect
recovery
employer or
dies between
from
coverage for em-
and mandated insurance
Act
recovery
party who was also
the third
64,
Act
ch.
ployers.
of March
damages
limiting
subject to
the Act
109,
legislature did
But the
Minn. Laws
O'Malley
v. Ulland
the Act.
amount fixed
compromise
between em-
alter
basic
Bros.,
889,
(Minn.1996). By
contemplated,
employers
ployees and
which
1923,
legislature
in
restored
amendment
Behr,
according to
an election of remedies
action,
by limiting
part,
that common law
recovery against
enter-
common
and limited
provision to situa-
of remedies
the election
including coemployees. Given that
prisers,
party,
employer and third
tions in which the
immunity
coemployee
provi-
the intent
Act,
engaged in a
subject to the
were
liability,
to limit
of 1979 was
sion
16,
Id.;
enterprise.
April
of Act
common
legislature
intended
is doubtful that
§
Minn. Laws
ch.
liability by
placement of
expansion
(currently
codified
Minn.Stat.
374-75
immunity
of the cu-
provision at the end
176.061,
1-4).
§
subds.
section,
ordinarily
which
remedies
mulative
of remedies
application when the election
that the election
remedies
We have held
apply.
provisions
against coemploy-
do not
applies to
provision
suits
Dawley
forth in
expense
production.”).
alter the standard we set
While other
Wicken,
jurisdictions
and rearticulated
our case law
have not
framed
provides
legislature’s
silence ex
immunity
personal duty,
terms of a
pressed
Dawley’s
its concurrence
requiring
showing
conclude that
that the
holdings.
Wicken’s
Robinson v. La
See
coemployee has acted
outside
the course
mott,
(Minn.1979);
before
645.17(4) (2004)
§
(stating
Minn.Stat.
imposed
will
approach.
be
is the better
a court of last resort
“[w]hen
has con Moreover,
approach aligns
with hold
law,
language
strued
legisla
ings
coemployee immunity
from certain
subsequent
ture in
laws
the same sub
jurisdictions
specifically
other
that have
*14
ject matter intends the same construction
See, e.g.,
addressed this issue.
v.
Meade
placed upon
language”).
to be
such
(Iowa
Ries,
2002);
prong
An employer may also extend
met;
parties
disagree
do not
that Ost-
scope
employment by directing
took direct
erman and Zamberletti both
an
requesting
perform
some
Thus,
Stringer.
the focus of
action toward
scope
employment.
act outside the usual
prong
of the
analysis
is on
second
Miller,
Weidenbach v.
237 Minn.
test.
(1952).
rule that
person’s
scope
employment
course
prong
Under
second
may apply
can be
extended
rescue
test,
must have
Osterman
Zamberletti
activities,
where
course
acting
their authorized course
within
been
an employee’s employment may
impli-
be
to not
owe
edly
emergency
extended in an
to include
Korey Stringer.
When
performance
designed
act
employee engages
exceeding
an
acts
property
life or
which the employer
save
authorization,
including the violation of
*15
Larson,
28.01(1),
§
2
an
at
interest.
rule,
acting
or a
he is
outside
instruction
Stadther,
28-2;
88,
Carey v.
Minn.
300
95-
employment.
of
scope
course and
his
the
96,
76,
(1974) (reversing
219 N.W.2d
80
a
Stables, Inc.,
Riding
296
Bartley v. C-H
a
of a
denial of benefits to widow
sales
(1973)
115,
660,
117,
662
Minn.
206 N.W.2d
employee
attempting
who died
rescue
(denying workers’
benefits
actively
employer
where the
had
encour-
to
thrown from a horse he was
aged
perform
to
acts of
employees
its
com-
ride);
Lange
to
instructed not
see
sales).
munity
in order to enhance
Comm’n,
service
Airports
Paul Metro.
Mpls.-St.
every
might
not
which
benefit the
But
act
918
257 Minn.
(1959).
employer
scope
is in the course and
Lange,
distinguished
In
we
be
(cid:127)
Larson,
27.01(3),
§
at 27-
performance
employment.
acts
tween the
of authorized
every
6.
not
in the
perform
in a
manner and the
And
rescue is
course
prohibited
Weidenbach,
at
prohibited
scope
employment.
ance of
acts.
Id.
and
Minn,
279-81,
at
the
explained
918. We
at
55 N.W.2d at
performance
prohibited
289-90,
acts is outside
(upholding
denial
benefits
scope
employment and does- not
the
to
who
dependents deceased worker
protection
the statute.
come within the
attempted
person
to rescue
who
Id. at
918.
through
ice
fallen
the
because there was
express
employer
no
to
direction
activity
We have held that
help
person
peril).
the
explicitly
the employee’s
within
defined
case,
In this
and Zamberletti
related
the
Osterman
duties can nevertheless be
provide
employed by
Vikings
if the work is in “fur- were
employee’s duties
Ramczik,
employment
arising
because he was
we concluded that a worker
out of his
scrap
employed
premises
was
employer’s
who
unload
iron from
and
work
still
compensa-
train cars was entitled workers'
employer's
in furtherance of
business.
was
help-
benefits when he was
while
tion
We note that the
Id. at
218 N.W.
heavy object
ing his
lift
in the
coworkers
injured worker undertook
additional work the
Minn,
Ramczik,
company’s foundry.
scope
employment
specific
of his
outside
157-58,
Although
Here, employment may Osterman’s and Zamberletti’s ob- course and be ligations Stringer directly ascertain, especially resulted from difficult to when em- acknowledge We provides that the record of Osterman as a new athletic trainer description a limited of Osterman’s and Zam- as the Zamberletti coordinator of medical ser- specific responsibilities berletti’s duties and future, prefer vice. In the we that the record Vikings' organization expected and what the fully be developed more on such issues. them, expected especially Vikings what the coemployee’s directly acts were taken and Zamberletti as Osterman ployees such authority employee discretion toward the and were not have the to exercise situations, In such general performance assessments. actions in the making taken duties, job ex- appropriate baseline employer’s nondelegable duty necessary and authorizations pectations, Second, provide workplace. a safe I would if an for a to determine court gross negligence prong reach the of Wick- scope of his em- the course and exceeded en. that I that prong, On would conclude that such a base- ployment. We conclude presented sufficient evidence Ac- in the us. line record before exists genuine fact create issues material foregoing, of the cordingly, based all summary judgment inappro- that summary judgment on the conclude that priate. and Zamberlet- issue of whether Osterman Korey Stringer Duty
ti had a A. Personal hold and therefore we appropriate Policy Considerations not err district court did when competing public I find that are there summary re- granted judgment policy relating concerns spondents. coemployee liability. suggests This lia- further restrictions on II. by bility legisla- should be addressed the district court Having decided ture, by this court. judgment for properly granted summary personal duty respondents under the hand, one I On the share the concerns address requirement, we need not whether majority expressed that unlimited granted court sum- properly district might coemployee liability intrude on mary judgment respondents for the based in the com- compromise reached workers’ therefore, gross negligence; we decline pensation employer laws and em- between address issue. ployees, could erode benefit immunity provid-
Affirmed. tort employers. policy ed arguments *17 PAGE, J., in took the part no narrowing, eliminating, or even favor of this consideration decision case. liability include coemployee the window for coemployees per- could risk these: serious HANSON, (dissenting). Justice basis; liability daily employ- on sonal the First, disagree I I respectfully dissent. required provide er to to may be a defense the majority with the conclusion of the thereby diminishing the coemployee, the “personal duty” prong of Wicken v. Mor- immunity; the employer’s benefit (Minn.1995). ris, 95, I 98 in- may liability employer see increases would conclude that the evidence estab- premiums; coemployee liabili- surance a matter law that Paul Oster- lishes as ty a sub- might provide employer the man owed a person- and Fred Zamberletti coemployee, claim the rogation against Korey Stringer. al to As foundation the shifting compensating burden conclusion, that, hold un- for that I would injuries workplace employer from the interpreting der Minneso- precedent See, McCluskey v. employee. e.g., duty” “personal ta’s law of and absent (Miss.1978) 256, 259 363 Thompson, So.2d legisla- contrary directions to plaintiff to re- (observing that permitting ture, prove that the plaintiff need not ulti- effectively “would transfer the cover course coemployee acting outside the compensation employment, providing of his that mate burden (Minn.2000) 302, industry, belongs, from the (declining where construe servants, not fellow where it does be- legislative abrogate intent to common law long.”); so). Arthur Lex K. Lar- Larson & of clear to do purpose absence son, Compensation Larson’s Workers’ Therefore, we need to whether consider Law, (2004); § E. Han- 111.03[2] William Minnesota’s workers’ laws compensation na, Coemployee Immunity: What Does It expressly eliminate or restrict More?,” Take to Plead “Something 53 J. liability. 1997). 77,
Mo. Bar 82 (March/April (2004) § Minnesota Statutes 176.031 there are competing But concerns with provides immunity liability to from tort restricting coemployee liability. poli employers follows: cy arguments against narrowing or elimi liability employer prescribed of an nating coemployee liability these: are chapter is exclusive and injured employee fully is entitled be place any other to such em- compensated injuries by all but the ployee, personal representative, surviv- employer; coemployee tortfeasor spouse, child, ing parent, dependent, consequences should be relieved kin, person next or other entitled to wrongdoing; extending immunity of his damages recover in- account such encourage would fellow jury or death. duties; employees neglect their and the its inception, immunity From coemployee, who part was not of the work been understood to to the apply only em- compensation ers’ compromise, did not See, ployer and coemployees. e.g., provide any quid pro quo support Soth, 283, Behr v. 170 Minn. 212 N.W. abrogation employee’s right (1927). argues No one See, to sue at common e.g., law. Grant contrary here. Denke, (Ala. ham 359 So.2d contrast, 1978) By when other have ex states (observing pro “quid quo is tended workers’ solely compensation immunity between employer employee”); Bingaman, Rehn v. coemployees, expressly. 151 Neb. done so (1949); Larson, See, 44-501(b) e.g., § Kan. Stat. Ann. § 111.02[2]. (2005) (stating that “no employer, other employee of such employer, be shall liable
Because the workers’ compensation laws any injury for which are a creature of legislature, which has recoverable under compensa the workers regularly refined the elements the com- act”); (2005) tion § N.J. Stat. Ann. 34:15-8 promise since original enactment (stating that injury or death “[i]f 1913, I believe that we should look to the *18 article, compensable person under this legislature to determine of the coem- shall not be anyone liable to at common tort ployee liability any and decline at- law or injury otherwise on account such to of tempt imply legislative intent from any or death for act or competing policy occurring these omission concerns. person while such employ was in the same Legislative Action person killed, injured as the except or wrong”); Comp. intentional N.Y. This legislative reluctance to in- Workers’ imply (2005) (workers’ § Law subd. 6 tent where none com expressed has been is by pensation “shall legal remedy reinforced the be the to presumption that exclusive * * * employee statutes should not be employee construed as abro- when such is gating injured common rights law unless do or by negligence killed the or expressly. Ly so Nystrom, wrong employ”); another the same (2004) (in 176.061was amended § section to 23-3-2-13 see Ind.Code following third-party add the restriction of “may legal pro commence jured employee liability for a coemployee: is ceedings” long alleged wrongdoer as as employer than the person “some other coemployee working A for the same em- employ”).1 failure the same ployer personal injury is not for a liable legislature to amend section the Minnesota by employee incurred unless another the similarly employer’s extend the 176.031 to injury gross negli- resulted from the coemployees demonstrates immunity or was inten- gence coemployee abrogate com the intent absence tionally by coemployee. inflicted the liability. mon law (extra 3, § Act of June ch. 1979), 1256, session 1979 Minn. Laws contrary, To Minnesota’s workers’ the (codified 176.061, § subd. Minn.Stat. compensation expressly preserve laws (2004)). 5(c) This amendment confirms Minnesota coemployee liability. Statutes party” that a “third includes (2004) preserves liability § 176.061 the by and that are not covered coemployees employees. “third It party” employer’s immunity from tort liabili- the here: provides, as relevant would ty. Otherwise this amendment If an Subd. remedies. 5. Cumulative Thus, solely.to purpose. if look no injury for which are or death benefits legislative action to determine under circumstances payable is caused coemployee liability, we would conclude liability for dam legal which created immunity there is and the no party of a than ages part other heightened is standard of restriction * * * party oth the employer, [and] makes gross negligence. The statute no not then employer er than the insured personal duty. mention of by provided chap or self-insured ter, may by proceedings be taken legal 3. Case Law employee’s dependents concept duty originated * * other against party * legislature. this court not the damages, notwithstanding the recover But, apparent- because legislature employer payment of benefits recognition ly acquiesced in this court’s fund or their special by implication, personal-duty restriction liability pay benefits. it, eliminating nor I codifying neither added). prong Again, incep- agree personal-duty (Emphasis The rel- liability coemployee liability applicable. provision, party tion the third scope of question concerns the party” “third has been held include evant Minn, above, Behr, I prong. For the reasons discussed coemployees. And, implied personal- the judicially prior the 1979 would N.W. at 463. read limiting prior liability duty prong narrowly, third-party amendments majority I cases to their facts. read provisions, coemployee was based expand personal-duty prong, opinion Id. ordinary negligence. *19 damages by negligence for among struggled have that bars actions 1. states that Alabama is constitution), coemployee over- coemployee state question whether im- violated with the of Brunson, by 527 So.2d 117 munity guaran- ruled Reed v. state constitutional violates (Ala.1988) immunity (holding law uncon- persons process tees that have due abolishes suits remedy against wrong- "insofar as it right legal their stitutional to a Denke, negligence against co-employees or wan- 359 for v. So.2d at doers. See Grantham tonness”). compensation (holding law 789 that workers' statutory quite broadly, party it adds the re- the framework of third when that in quirement coemployee’s liability that the acts must was before this court Behr scope employ- considerably pre outside the of be course and different from that sup- is not requirement today, ment. Such remain aspects sented two of Behr action; by any (1) ported legislative is not fully Behr a “third applicable: viewed law; (2) required by prjor it would create case coemployees include Behr party” to immunity coemployees virtually for that is that determined the fact that the coem- employers, with that of which coextensive ployee acting within was the course do; the statute does not it would be scope employment of his did not limit the apply. that the difficult To conclude Behr, coemployee’s liability. Minn. at legislature acquiesced in the court’s en- Behr, 281-83, 212 N.W. at In we 462-63. require- of a grafting scope employment of rejected specifically that the argument the personal duty prong ment is to fire chief outside acting legislature assume the could divine (which scope employment of his would in might what this court think 2005 when completely have taken the ease outside the presented these unusual facts were laws) compensation workers’ when his car —the court has never before the words used truck, injuring collided a fire “scope employment” of describing in Yet, plaintiff fireman. Id. concluded we personal duty prong. fire chief than “party other who employer” legal for legislatures
Some state expressly any in negligence causing plaintiffs coemployee liability, restricted as the ma- . Minn, Id., injuries at 212 N.W. jority proposes, acts outside See, course and of employment. e.g., (2005) § (stating Iowa Code 85.20 because, holding significant years This compensation remedy workers’ is exclusive later, when we first “personal mentioned right injury by when caused Thisius, duty” Dawley in grounded we out “arises of and in the course such recognition our right to sue coem- employment by and is not caused ployee negligence majority on what the [coemployee’s] gross negligence amounting a “tangential analysis” now calls in Behr. such lack of care as to amount wan- Dawley, Minn. 231 N.W.2d neglect another”); safety ton (1975). Then, when we went on (2005) § Ohio Rev.Code. Ann. 4123.741 coemployee liability to consider how is af- (stating that employee may no be held “by policy fected behind the [workers’] injury liable for by “received or contracted statute,” implied a much any other employee employer of such narrower restriction than proposed course of and arising out the latter majority the act of the coem- —that employee’s employment”). The Minnesota ployee must negligence constitute “direct Legislature has not followed the lead of 455-56, plaintiff.” toward the Id. at
these states. legislative This inaction can And, context, N.W.2d at our this only be interpreted rejection as a of this further statement —that coemployees’ lia- type restriction. bility not be imposed will of his “because general responsibility Our case law administrative support likewise does not expansion personal-duty employment”, some function see id. prong. fact, directly decision Behr is 557—cannot reason- contrary ably based on read not to incorporate any restriction be course and scope standard, course employment. 170 and which Minn. at Although rejected Behr, N.W. at 463. had been *20 duty a safe nondelegable provide must be er’s to negligence that emphasize This was direct, or vicarious. Id. at workplace. not indirect 98-99. Dawley in because the claim necessary majority’s restriction of negli- against manager
was made
liability to acts
course and
outside the
gener-
of certain
gence
performance
in the
scope
would have the ef
al,
The discus-
administrative functions.
fect,
unintended,
im
perhaps
providing
administration is
relevant here
sion of
not
munity
coemployees
essentially
to
that is
coemployees
not man-
because these
were
employer.
with that of the
coextensive
agers
performing
and were not
administra-
Generally,
employer’s respondeat supe
tive functions.
liability
employ
turns on
rior
whether the
facts,
Dawley to its
where
Limiting
ee
acting
scope
within the
of his em
solely
claim
on the failure of a
was based
See,
ployment.
e.g.,
Burmeister
Hagen v.
a safe
supervising coemployee
provide
to
(Minn.
Assocs.,
&
633 N.W.2d
work,
“personal duty” rule
place to
2001) (observing
impose
that
“we will
liability
is that
must be
emerges
[respondeat superior] liability unless there
toward
coemployee’s
based on a
direct acts
some connection between the tort
injured employee
general
and not on
business”). Thus,
immunity given
performance
of the em-
actions taken
to
employers essentially applies to acts
ployer’s nondelegable duty
provide
to
employees performed
its
within the cause
workplace.2
safe
Had the
employment.
of their
we revisited
When
provide
intended to
such broad
legislature
Moms,
v.
98-99
Wicken
N.W.2d
coemployees, it
equivalent immunity
(Minn.1995),
Dawley,
not expand
we did
presumably
directly by
would
done so
merely
personal-duty
identified the
amending section 176.031 to extend
Dawley
prong
liability,
test of
as one
immunity
employees.
employer’s
its
legislature’s intervening
being
other
gross
prong.
negligence
enactment of the
employ-
I
Finally,
doubt
duty,
repeated
As
this
test is workable in a
such as
ment
case
Dawley,
only that
adding
words of
coemployee’s job
provide
where the
duty may include acts of
as well
omission
I
employees. Accordingly,
directly
care
personal duty to
as commission—“The
as the
decline to broaden the test
would
contemplated Dawley
is no
coemployees
and, instead,
nar-
read
majority proposes
duty any
different than the
individual owes
already
in Daw-
rowly the test
announced
arising
daily
from normal
social
another
ley and Wicken.
duty to
from conduct
contact—the
refrain
narrower
test
reasonably
Given
be foreseen to cause
might
agree
the court of
And,
duty, I would
Id.
as in
injury to another.”
at 98.
facts show
appeals
undisputed
Dawley, our ultimate
decision Wicken
a personal
could
and Zamberletti had
supervisory coemployee
was that a
Osterman
Korey
Stringer v.
employ-
Stringer.
duty
not be held liable
breach of the
toward
* * *
us,
nondelega-
binding
employer's
Although
pursuant
court of
provide
workplace.”
Id.
appeals
interpreted Dawley
in this man-
ble
safe
Club,
Freeman,
Vikings
(citing
Stringer v. Minn.
Football
Buck
ner.
(Minn.
LLC,
(Minn.App.2000),
denied
(Minn.App.2004).
795-96
review
Korn,
21, 2001);
appeals
"Dawley
Wood v.
observed that
Feb.
court
(Minn.App.1993),
denied
review
consistently interpreted
and Wickenhave been
24, 1993)).
(Minn.
immunity
Aug.
provide
negligence
actions
*21
Club, LLC,
Minn. Vikings
negligently
Football
686 or was
performed,
not
but on
545,
(Minn.App.2004).
what
given.
other care was
fact that
caregiver performed
some acts that were
B.
Negligence
Gross
(i.e.
negligent
bringing
themselves
Ko-
concept
gross negligence,
as used
rey Stringer to the air conditioned trailer
contexts,
in other
has often been referred
water)
evaluation, offering
should not
conduct,
range
to as a
great negli
be considered to excuse
negligent per-
See,
gence to the absence of scant care.
formance or failure to perform the other
154,158-
e.g.,
Bolsinger,
State v.
221 Minn.
alleged
acts that are
required
to have been
480,
(1946);
21 N.W.2d
State v. Al- by due care.
Naseer,
(Minn.2005).
690 Accordingly, I
gross
would describe the
But I would conclude that one end of that
negligence
coemployee
standard for
liabili-
range
“want of even scant care”—is
—the
ty in terms of
negligence
what it
of a
is—
applicable
liability be
high degree, great negligence, more than
incompatibility
cause of its
per
with the
ordinary negligence but less than wanton
sonal-duty prong
liability.
for that
and willful conduct—and not in
terms
We have no
establishing
cases
the stan
what it is
provision
not—the
of scant care.
gross negligence
dard for
standard,
And under
Stringer has
liability under the workers’ compensation
presented sufficient evidence to create
laws. The cases that
gross negli
describe
genuine issues of material fact that
gence as a range that includes the want of
conduct of Osterman and Zamberletti was
scant care
arise
contexts not particular
grossly negligent. Accordingly, summary
ly
See,
relevant
to coemployee liability.
judgment should be reversed and the mat-
Al-Naseer,
(dis
e.g.,
er, Minn.
(1946) (defining gross negligence in crimi context).
nal What unique about eoem-
ployee liability, above, as discussed is that
we do not even reach the gross negligence
question personal duty unless a has been Minnesota, Appellant, STATE of established —some act of negligence direct toward the employee. When the personal-duty prong coupled with the BARKER, Duane Nathaniel gross-negligence prong, the notion of scant Respondent. appears care place. have no No. A04-1453. applied us, As to the claims before Stringer alleges 25 acts of commission and Supreme Court of Minnesota. omission that amount gross negligence Nov. supports she allegations those expert affidavits. The use of a scant-care
standard would focus not on those acts
where the care was negligently performed