*1 DECISION arbitrarily capri- did not
The Board act adopted ciously it the administrative when findings his recommen- judge’s law but not American Board’s dation. The showing Freight not make a did necessity supported convenience and evidence the record. substantial Affirmed. al., WALTON, G. et
Florence Respondents, CO., ENTERPRISES FUJITA TOURIST Defendant, LTD. Tours, Inc., Respondent, Airlines, Inc., Appellant. No. C5-85-725. Appeals of Minnesota. Court 14, 1986. Jan. 21, 1986. Review Denied March *2 McDonough,
Michael P. Minneapolis, for respondent, Delight Tours, Pacific Inc.
Douglas Muirhead, Minneapolis, J. for Airlines, appellant, Northwest Inc. Heard, considered, by and decided CRIP- PEN, P.J., LANSING, and WOZNIAK and JJ.
OPINION
CRIPPEN, Judge. The trial court found defendant Pacific Tours, Delight negligent, appel- Inc. 50% Airlines, negli- lant Inc. Northwest gent, respondent Florence Walton 20% by injuries for suffered Walton spon- while on a familiarization “fam” tour by sored Pacific Following Airlines for travel separate damages, judgment trial on declaring liability of entered Northwest and Pacific and Pacific De- damages. Walton’s Walton light agreement as to reached a settlement damages. Delight’s portion appeals judgment from the Northwest from the denial of the motion for a new Respondent requests trial. review of the court’s denial of interest. We affirm.
FACTS Walton, agent, fell
Respondent a travel stairs in a injured her ankle on some staying. Japan in where she was on a gone Japan Walton had trip sponsored 10-day familiarization Pa- appellant and defendant by Northwest Delight. Fam are common cific agents pay a nom- industry; travel travel $199), (Walton paid inal amount trans- airline and tour “wholesaler” accommodations, portation and as well as potentially tours of tourist attractions By agency customers. to travel trips, travel fam participating these infor- gain firsthand agents as such Walton and tours the hotels Minneapolis, for re- mation about Wylie, T. Richard Walton, sell to the retail customers. et al. spondents, Florence G. Fujita, involved as a arranged go trip defendant only.) name by responding to an offer sent to her
Japan signed the She document Northwest. hotel where Walton’s accident oc- itinerary and the terms setting forth the had been included curred submitted of the offer and Although and conditions in earlier tours. *3 employee individual Northwest who The trial court held that the required the fee. trip on Walton’s had never been to the in that doc- exculpatory clause contained an before, agents other Northwest had against as ument was unenforceable during previous at the hotel tours. been policy. That clause reads: Delight’s Fujita employees, as Pacific The and lia- Responsibility: agents Japan, had in the hotel on been (North- Inc. bility Airlines of Northwest various occasions. west) of a common is limited to that accident, and day the of her Walton On and arises in connection with this carrier members, including Fuji- the other tour the acting as a only tour while Northwest employees, ta and Northwest ascended the may carrier. Northwest act as staircase where Walton later fell down. agent pro- who for owners or contractors way They gone up the stairs on the to transportation or services re- vide other restaurant. After lunch at the the hotel’s lating to this tour. All tickets and tour restaurant, by returned herself to Walton terms, subject orders are issued The locat- look for a bathroom. stairs were responsibilities under conditions and door, of a just ed on the other side transportation such other or other which through the fell when she walked provided, or services are offered top step. The doorway slipped any shall not be liable for top step evidence indicated the was narrow- loss, damage, injury relating or death er than the others. thereto. issues, Following a trial on the injuries found that Walton’s trips by North- co-sponsoring of fam by principally were caused Delight began early as as west and venturers, defendants, as due to of all from 1971. The firms shared the revenues reasonably fa- their failure to safe trips money, and both firms contributed the use of their customers. The cilities for time, property, employees, and effort that Pacific trial court found organize trips and market them to trav- negli- negligent, Northwest was 30% 50% Although not introduced el gent, and Walton evidence, the two firms also had a into failing to maintain a minimal lookout for trips. regarding the fam written contract dangers. such accompanied the A Northwest followed, damages and Walton trip, such an em- group on each $100,490.64, reduced was awarded trip in Ja- ployee was on the with Walton negligence, net award of for her employee’s presence, pan. Apart from that $80,392.51, date of plus interest from the however, “physical” Northwest’s involve- judgment. The trial court denied Wal- limited trip ment itself was with in- prejudgment posttrial ton’s motion for ground transporta- transportation. The judg- appeals from the terest. Northwest accommodations, sightseeing tion, hotel denying a new ment and from the order tours, etc., all handled Pacific De- were trial, the trial seeks review of and Walton trips Japan, fam light. In the case of in- denying order required of a local the involvement law terest. ground activi- Japanese agency for all ISSUES Delight arranged for
ties there. Pacific Fujita Enterprises, a through finding this Tourist trial court err 1. Did the (Because to be corporation. the trial in the contract Japanese exculpatory clause unenforceable? jurisdiction case found no over err in relationship 2. Did the trial court agents between travel providers of a venture between North- trips. Second, existence of fam North- west, Delight? major west and airline headquartered in the Cities, region’s Twin is the primary provi- err in finding 3. Did the trial court trips der of air to the Orient. Travel negligent? Northwest was agents forego trips Northwest’s will deprived 4. Was Northwest of a fair very not be able to market the to their judge’s interrup- trial because the trial own customers without upon some basis during closing arguments? tions which to recommend them. Northwest’s various services could not be obtained else- ANALYSIS where. Exculpatory 1. clauses are valid addition, clause is am- circumstances, in certain but are not fa biguous in scope. It maintains that North- *4 in the law. Spa vored Schlobohm v. Pet “may agent west act as for owners or ite, Inc., 920, (Minn.1982). 326 923 N.W.2d contractors transporta- other exonerating party A clause a from liability services,” tion or but subsequently dis- strictly against will construed be bene claims relating for losses to other party. ambiguous fited If the clause is in transportation or services. scope it will not enforced. Id. be reasons, For these we conclude that evaluating clauses, In properly exculpa found the approach policy the courts considera tory clause to be unenforceable. case-by-case tions on a basis. Id. The in adopted two-prong Schlobohm a joint 2. The elements of a venture are analyzing policy test for for a case. as follows: First, the court disparity reviews the of (a) parties Contribution —the must com- bargaining power parties. between the two time, money, property, bine their or skill Second, the “types court considers the of in undertaking, some common but the being provided services (taking offered or equal contribution of each need not be or into consideration it whether is a or of the same nature. service).” essential Id. (b) proprietorship Joint and control proprietary —there must be a parts
The trial court here relied on both right of mutual control over the sub- First, of the test. Schlobohm the court ject property engaged matter of the agreement stated that the between North- therein. for, bargained west and Walton was not noting (c) “by only” qual- profits the offer’s invitation Sharing but not necessar- of ity. The court also noted that ily express doc- losses—there must be an of prepared unilaterally by implied agreement sharing ument was North- or for of * * * west, creating profits a “take it or leave it” situa- necessarily but not Second, partic- tion. the court stated that losses.
ipation in necessary such fam is (d) contract, must a Contract —there be agent the business success of an and that express implied, showing whether or that gave Northwest’s size monopoly it a virtual joint a adventure was in fact entered trips. on such The court said that into. unique “services tendered were and una- Homes, Inc., Rehnberg v. 236 Minnesota “practical
vailable elsewhere” and were of
235-36,
454,
230,
Minn.
52 N.W.2d
457
necessity” to Walton and other
travel
(1952).
court, using
The trial
this stan-
dard,
North-
found that Pacific
analysis
compelling.
engaged
The trial
On
joint
court’s
west were
a
venture.
First,
review,
this court will overturn the trial
assessment of the
disparity
bargaining power
findings only
of
if
are
between
accurately depicts
Walton and Northwest
erroneous. Minn.R.Civ.P. 52.01.
joint
right
joint
If
party
that no
venture
a
has the
of
Appellant contends
control
instance,
not retain
[they]
delegate
Northwest did
can
it
existed because
first
over the
of
requisite
control
conduct
varying degrees
it in
surrender
and in the
where
Japan
party
relationship.
another
Pat-
occurred.
accident
Northwest
Walton’s
ently,
right must exist
it can
before
only in
points
charge
of
out that
delegated
be
or surrendered.
tour,
for the
whereas
transportation
Donaldson,
72, 81,
Roberts
276 Minn.
v.
control of the tour
(1967)
(quoting Hayes
149 N.W.2d
ground.
while on the
465, 478,
Killinger,
v.
235 Ore.
385 P.2d
applied
de-
Behnberg
1973 case that
(1963).
For the same
that
reasons
argument:
feats Northwest’s
joint venturers,
led them to become
adventure,
the individual de-
a
delegated
control
liable
be-
fendants are
as a unit
specific
aspects of the tours
each other.
undertaking
mutual
cause of their
responsibilities
This
division of
does
right
and their
of di-
purpose
operate
negate
existence
a
enterprise,
over the
and control
rection
venture.
physical
is no
though
even
there
actual
Moreover, the same witnesses that
exer-
or such control
never
control
here also
Northwest relies on
established
cised.
the tour
Photo,
Krengel
Midwest
Automatic
“right
did in
voice in
fact have
some
*5
200, 208,
841,
Inc.,
203
Minn.
N.W.2d
295
the
the direction and control of means used
(1973).
supports
pre-Rehnberg
846
case
carry
purpose.”
to
The
out the common
reasoning.
Murphy
Keating,
this
See
employee
suggestions
free to offer
269,
(1939).
389
In
204
283 N.W.
Minn.
point
dangers
improvements,
to
and
out
court said:
Murphy the
Fujita
Delight
to
and Pacific
em
both
the
customarily
There are two elements
ployees
The
and to the
members.
required
joint
to
by the courts
establish
right
also have the
to send
would
(1)
namely
enterprise,
a mutual undertak-
disruptive
to
Twin
a
tour member back
the
(2)
right
ing
purpose,
common
and
a
facts
indi
Cities. All of these
combine to
direction
control
to some' voice
and
presence
joint
cate the
of a
venture be
carry
of
used to
out the com-
the means
Northwest,
Delight and
and
tween Pacific
mon purpose.
clearly
was not
273,
at
at
Here, apportion ment of between the three parties was reasonable erro
neous. 4. claims TESMER, al., Appellants, David J. et by posing questions erred several to North attorney during closing argu west’s his COMPANY, RICH LADDER et ment at trial. The claim is without merit. al., Respondents. interruptions A review of the shows the judge aggressive in questioning his No. C4-85-1137. probing attorney’s arguments. Appeals Court of of Minnesota. jury, proper. In the absence of a this is working against parties, Rather than Jan. 1986. provides attorneys oppor with an 21, 1986. Review Dismissed March tunity present arguments per that will judge point being ques suade the
tioned.