• November 5, 2011

Update #2 (November 5, 2011):  This past week the Minnesota Supreme Court affirmed the Court of Appeals in the case described below.  Sure enough, under the facts of the Domagala case, there is “no duty to warn” but there is a “duty to exercise reasonable care,” which can be met by giving someone a warning (and so, can be breached, by failing to warn, even when there is no duty to warn).

Update #1 (Nov. 18, 2010): This week, the Minnesota Supreme Court has granted a petition to review this case.

Original Post (9/1/2010):  Bradley Domagala asked Eric Rolland, his wife’s cousin, to help him level the grade of his yard — to take the rough patch of land, grade it, and make it suitable for sod and seeding.  Rolland, who ran Rolland Building Corp., came by with a skid loader with various attachments (forks, leveling bar, bucket) to take care of the job.  Domagala sat nearby watching, and ready to help.

Apparently, swapping out skid loader attachments, and, in particular, undertaking a certain operation when a rock or other object is stuck when an attachment is being attached, is known to be potentially dangerous.  That is, it appears to have been known to Rolland, but not to Domagala, who approached the skid loader at the wrong time and, as a result, had his foot crushed and toes amputated when the bucket fell off the front of the skid loader during this procedure.

The jury (that ultimately found in favor of defendant, Rolland) was instructed that Rolland had no duty to warn Domagala, no duty to protect Domagala, but the jury was instructed that Rolland did have a duty to exercise reasonable care (which could include a duty to warn)… Sound confusing?  This week, the Minnesota Court of Appeals thought so and Domagala’s case was remanded for a new trial.

For the panel of Judges Connolly, Schellhas and Stoneburner, Judge Connolly wrote for the Court in a decision for publication, “Because the exercise of reasonable care upon the creation of a dangerous situation may include giving a warning to the at-risk party and in light of the jury’s question, we are persuaded by appellant’s argument that the no-duty-to-warn and no-duty-to-protect instructions confused the negligence principles at issue….”  Case is remanded back to Washington County District Court (Ekstrum, J.).

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