Minnesota Supremes Distinguish Between Duties Arising from Misfeasance and Nonfeasance
In the decision du jour, a homeowner was injured when one of his in-laws (who was providing free landscaping for the homeowner) dropped a skid loader's heavy bucket on the foot of the homeowner, who was also working on the landscaping project. Domagala v. Rolland, 2011 WL 5061523 (Minn. Oct. 26, 2011). There are a number of possible lessons to be learned from this case. Never hire your in-laws to do work around your house. Avoid yard work at all costs. Never trust your in-laws around heavy equipment. And you get what you pay for.
The lesson the Minnesota Supreme Court chose to teach from this case is when a duty to warn may arise and the difference between misfeasance and nonfeasance. Although this isn't a mass tort case, it's a useful reminder on these basic tort issues.
The defendant had brought a skid loader onto the plaintiff's property to do landscaping. It had various attachments, including a bucket that was secured to the skid loader by two pins. When the pins were released, the bucket could be removed and switched for another attachment. Sometimes the pins would stick because of debris. The defendant would attempt to dislodge the debris by jiggling the controls, thereby shaking the bucket. This presented the risk that an elevated bucket could become dislodged from the skid loader and fall to the ground. It did -- at a time when the plaintiff was near the bucket to remove a rock. The bucket fell on his foot, causing injuries requiring the removal of a number of toes.
At trial, the jury had been instructed that the defendant had no special relationship with the plaintiff, and thus owed him no duty to warn. It was also instructed on Restatement (Second) of Torts section 321, which provides that a person who creates an unreasonable risk of physical harm to another must use reasonable care to prevent injury. The jury returned a verdict finding the defendant not to have been negligent. Plaintiff appealed, challenging the "no duty to warn" instruction.
The Minnesota Supreme Court first gave a primer on basic negligence law:
The distinction between the specific duty to warn and exercising reasonable care by giving a warning likely stems from the historical divergence of liability for misfeasance and nonfeasance. Misfeasance is "active misconduct working positive injury to others" while nonfeasance, or nonaction, is "passive inaction or a failure to take steps to protect [others] from harm." Inaction by a defendant -- such as a failure to warn -- constitutes negligence only when the defendant has a duty to act for the protection of others.
A duty to act with reasonable care for the protection of others arises in two instances implicated in this case. First, echoing the principles of liability for misfeasance, general negligence law imposes a duty of reasonable care when the defendant's own conduct creates a foreseeable risk of injury to a foreseeable plaintiff.
Second, a defendant owes a duty to protect a plaintiff when action by someone other than the defendant creates a foreseeable risk of harm to the plaintiff and the defendant and the plaintiff stand in a special relationship. In other words, although a defendant generally does not have a duty "to warn or protect others from harm caused by a third party's conduct," an exception to this rule exists when the parties are in a special relationship and the harm to the plaintiff is foreseeable.
Id. at 5 (citations omitted).
The court noted that the parties had stipulated that they were not in a special relationship. Thus, it held, the defendant owed plaintiff no duty to warn about risks of harm created by others. But he still owed a duty of reasonable care to prevent harm resulting from risks that he created himself. The court noted that the exercise of that "reasonable care" could involve taking physical precautions, but it also could have involved simply warning the plaintiff of the risk and telling him to stay away from the bucket. It was up to the jury to determine precisely how the duty of care could be reasonably discharged, but it confirmed that a warning was at least one option the jury could consider. Accordingly, the jury instruction about there being no duty to warn was misleading.
In the course of this discussion, the court noted that many courts have refused to follow section 321 of the Restatement (Second) because it does not address policy concerns that are typically considered as part of the duty analysis. The court expressly declined to adopt section 321, and instead relied on its standard five-factor test for determining whether a duty to exercise reasonable care exists. See id. at *8.
In reviewing the "no duty to protect others" jury instruction, the Minnesota Supreme Court indicated that "a correct statement of the law" would read as follows:
A person generally has no duty to act for the protection of another person when the harm was created by a third party. No duty to protect against harms created by others exists in this matter and you must not consider such a duty in your deliberation in this case.
Id. at *11 (emphasis in original). Without the qualifying language, the court held, the instruction would contradict "a basic tenet of negligence law: when a defendant's conduct creates a foreseeable risk of injury to another, the defendant has an affirmative duty to exercise reasonable care to avoid the injury." Id.
The opinion in Domagala makes it plain that MInnesota law does not impose a duty to warn on people unless they have done something to affirmatively create a risk of harm, or they are in a special relationship with the plaintiff. Its discussion of misfeasance and nonfeasance is useful, and its rejection of Restatement (Second) section 321 for lack of adequate public policy considerations is notable.
