• April 23, 2018

Update (April 23, 2018): The Minnesota Supreme Court reversed the Court of Appeals’ indemnification decision in the collapsed table accident, described in earlier posts:

Although we may uphold the enforceability of a contractual indemnity clause, we disfavor agreements seeking to indemnify the indemnitee for losses occasioned by its own negligence… Accordingly, we strictly construe such indemnity clauses….For an indemnity clause to pass strict construction, the contract must include an express provision that indemnifies the indemnitee for liability occasioned by its own negligence; such an obligation will not be found by implication. Such a provision need not include the word ‘negligence,’ but it must use specific, express language that clearly and unequivocally states the contracting parties’ intent for the indemnitor to indemnify the indemnitee for the indemnitee’s own negligence. [internal quotes and cites omitted]

Update (November 3, 2017): A man sits at a rented picnic table, rented by a restaurant for Ma & Pa Kettle days in Kettle River, Minnesota. The rented picnic table collapses. Patron (Mr. DeWitt) suffers serious injury.

As stated in the original post (below), the Court of Appeals in Mr. Dewitt’s case, surveying “chair collapse case law” found that the doctrine of “res ipsa loquitur” (“RIL”) should apply.

Defendant Tower Tap sought Minnesota Supreme Court review of the intermediate court’s decision on three distinct bases. As to the RIL and another issue, Tower Tap lost. The Supreme Court refused to revisit the Court of Appeals decisions on two of three issues raised.

The Supreme Court only agreed to hear the third issue:

Did the Court of Appeals err when it affirmed summary judgment applying the indemnity clause to [Picnic Table Rental Company’s] own acts of negligence even though the clause does not expressly provide for that protection? The Court of Appeals [ruled in favor of Picnic Table Rental Company, holding that] the indemnity clause [applied] to claims of negligence against [Picnic Table Rental Company].

Translation: Picnic Table Rental Company included a contractual provision that provided that it would not be liable for injuries sustained if a Tower Tap patron got hurt. The issue on appeal: if the provision does not expressly provide indemnification for Rental Company’s own negligent acts, does the law provide that this can and should be read into the indemnification agreement?

Original post (August 9, 2017) (under the headline, “No Mud Bog this year”): Ma & Pa Kettle Days in Kettle River, Minnesota are a pretty big deal. The population of Kettle River, 50 miles Southwest of Duluth, is only 180 people. During the 2012 celebration, Craig DeWitt sat at a picnic table at the Tower Tap Full Bar & Grill (Tower Tap) on Main Street in Kettle River. The picnic table collapsed on his hips. He appears to have suffered serious injuries.

This year, M & P K Days are coming right up (August 11 & 12) and you will note the promotion repeatedly warns (or brags?) “No Mud Bog this year.” (There is a good story in there somewhere…)

With or without the Mud Bog, we imagine M & P K Days are likely the biggest money-maker of the year for Tower Tap on Main Street in Kettle River. Unfortunately for Tower Tap, however, the injury that Mr. Craig DeWitt sustained could cost the bar and grill a pretty penny.

The DeWitt decision that came down from the Minnesota Court of Appeals this week is important reading for personal injury litigators.

It might be important for plaintiffs’ lawyers, in particular, because of the affirmance of sanctions on the plaintiff’s lawyer for the lawyer’s narrow view of what medical records would be discoverable in a personal injury case. When one is bringing a lawsuit to recover for personal injuries, including past and future pain, suffering, disability, disfigurement, and loss of enjoyment of life, it is probably fair for the defendant to request all of the plaintiff’s medical records and it is probably unreasonable to deny the defendant access to them. Force the defense lawyers to bring a motion to compel at your peril.

The decision is more important for plaintiffs’ and defense personal injury counsel for the relatively relaxed use of the doctrine of res ipsa loquitur doctrine in the case.

In general the doctrine of res ipsa loquitur permits an inference of negligence from the circumstances of an accident.” A classic example of an application of that doctrine is the patient who wakes up after dental surgery missing part of his ear. The point of the doctrine is, in essence, “things like this do not happen in the absence of negligence and the defendant is the only realistic wrong-doer.” (Also, in the “unconscious tort victim” example, the victim/plaintiff is at a great disadvantage if he has to prove the wrong-doing because he was unconscious when it happened.)

In DeWitt, the Court rejected Tower Tap’s argument “that the mere possibility of a latent defect or third-party tampering precludes DeWitt from proceeding with his negligence claim under the res ipsa loquitur doctrine.” In fact, there are chair collapse cases across the country holding that such incidents trigger the res ipsa doctrine.

This is a positive development in Minnesota personal injury law in that it eases the burden on plaintiffs in cases where defendants have no genuine defense on liability. The parties can focus on the key issue, what the damages are, and can skip (or at least minimize) the forensic game-play as to liability, which often causes delay, expense, and injects uncertainty (henceforth “Mud Bog”) where there it shouldn’t be.

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