STATE OF MINNESOTA IN SUPREME COURT

September 6, 2017

Craig DeWitt, Respondent,

Trial Coufi Case No.: 69DU-CV-15-194 VS.

Appellate Courl Case No.: A16-1794

Lond Road Rental Center lnc. Respondent,

Jach's, Inc. d/b/a The Tower Tap & et. al,

Restaurant,

Date of Filing of Court of Appeals Opinion: August 7, 2017

Petitioners,

Marlee Enterprise, Inc., Defendant.

PETITION FOR REVIEW OF DECISION OF COURT OF ÄPPEAIS

Attorney for Petitioners

Attorneys for Respondent Craig DeWitt:

Timothy P.'f obin #127 887 Brock P. Alton #0388335 Ms. Abigaìl A. P elftt #0392546 Gislason & Hunter, LLP 701 Xenia Avenue South, Suite 500 Minneapolis, MN 55416 Phone: (763) 225-6000

Robert Edwa¡ds #25793 Robert N. Edwards, Chtd. 2150 Thìrd Avenue, Suite 240 Anoka, MN 55303 Phone: (763) 244-3140

Attorneys for Respondent Road Rental Center, Inc.:

London

Jacob M. Tomczlk #0325315

McCollum Crowley Moschet Miller & Laak, Ltd. 7900 Xerxes Avenue South, Suite 700 Minneapolis, MN 5543 1-1 127 Phone: (952) 831-4980

Scott Wilson #163 193 Scott Wilson, Attomey at Law 3 I 0 4'r' Ave. S., Suite 510 Minneapolis, MN 55415 Phone: 1651.¡3 53-31 84

TO:

SUPREME COURT OF THE STATE OF MINNESOTA: Petitioners Jach's, inc. dlbla The Tower Tap

&

Restaurant ("Tower Tap") and Chester

Morgan ("Morgan") respectfully submit this Petition requesting fuilher review by this Court of the decision of the Minnesota Courl of Appeals.

STATEMENT OF LEGAL ISSUES

l.

Did the Court of Appeals err when it reversed, as a mâtter of first impression, the District Court's grant of summary judgment and dismissal of Respondent Craig DeWitt's claim for application of res ipsa loquitur, where Petitioners rvere not in exclusive control of the instrumentality? The Court of Appeals ruled in the affìnnative, and remanded the case for trial.

2.

Did the Court of Appeals err when it affirmed summary judgment enforcing the exculpatory clause found in the purported "rental contract" between Petitioners and Respondent London Road Rental Center, Inc.? The Cou¡t of Appeals ruled in the negative, and enforced the exculpatory clause.

3.

Did the Court of Appeals err when it affirmed summary judgment applying the indemnity clause to London Road's own acts of negligence even though the clause does not expressly provide for thât protection? The Court of Appeals ruled in the negative, and applied the indemnity clause to claims of negligence against London Road.

il.

STATEMENT OFTHE CASE Petitioners rented picnic tables from Respondent London Road Rental Center, Inc.

("London Road") for use during Ma and Pa Kettle Days in Kettle River, Minnesota. At the time

of delivery, London Road presented Tower Tap with a Rental Agreement and

conditioned

dropping the tables off on signing the same. The Rental Agreement contained, on the reverse side, "Terms and Conditions" including exculpatory and indemnification clauses.

Two days later, Respondent Craig DeWitt ('DeWitt") attended Ma and Pa Kettle Days. DeWitt, heavily intoxicated, was seated at one of the tables when the tabletop collapsed, injuring

him. According to London Road's likely collapsed

as a result

President and Mr. Dewitt's excluded expert, the table most

ofpressure applied by a patron.

DeWitt brought this action alleging negligence and res ipsa loquitur. London Road brought cross-claims against the Petitioners for contractual indemnity and contribution based upon the Rental Agreement.

London Road brought

a Motion for

Summary Judgnent against Petitioners, and

Petitioners brought a Motion for Summary Judgment against DeWitt. The District Court granted

London Road's Motion for Summary Judgrnent against Petitioners, and ordered Petitioners to reimburse all reasonable costs and attomeys' fees incurred by London Road.

It

also granted

Petitioner's Motion for Summary Judgrnent as 10 DeWitt's res ipsa loquitur cTaim.l

DeWitt appealed disr¡ìssal of his r¿s ipsa claim, and Petitioners appealed the grant of summary judgment to London Road. The Court of Appeals reversed the decision of the District

Court as to DeVy'itt's claim, but upheld the District Court's decision conceming the Rental Agreement.

ilI.

LEGAL ARGUMENT IN SUPPORT OF PETITION FORREVIEW A.

Criteria for Exercise ofDiscretionarv Review

Review of the Coul of Appeals' published decision in this proceeding is appropriate because: the questions presented are important ones upon which this Courl should rule; a

decision by this Court presented

will help

develop, clarify, or harmonize the law as one

of the

tssues

is subject to a jurisdrctional split; the Courl of Appeals decrded an issue of first

impression in Minnesota, calling for the application of a new principle or policy; the Court of Appeals extended applicable case law beyond the boundaries established by this Cour1, calling

for an exercise of tliis Courl's superuisory powers; resolution of the question presented

I

has

The negligence cÌaim was Ìater dismissed when De\{itt's expefi was excluded from testifying. That decision was not appeaÌed.

possible statewide impact; and, the question is likely to recur unless resolved by this Court.

Minn. R. Civ. App. P. 117, subd. 2(a), (c), (d).

B.

This Court should Review the Decision of the Court of Appeals Concerning Res lpsa Loquitur

Fì¡st, the Coufi should review the decision of the Court of Appeals' decision in this case

holding that Petitioners should be held responsible for the collapse of this table despite the lack

of any "exclusive" control over the table.

Jurisdictions are split over whether or not, in

some\¡'/hat analogous circumstances, business proprietors are benches, or other seats that collapse on their property. Thus,

in "exclusive control" of

chairs,

in Chini v. IMendcentral Corp. Inc.,

262 A.D.2d 940,94O,692 N.Y.S.2d 533, 533 (1999), the appellate court overruled the trial court's holding that a client could claim res ipsa loquitur arising out ofinjuries sustained when a chair she was sitting on at a restaurant owned by the defendant collapsed. The Cout heid that exclusive control could not be shown. 1d. This decisìon is in line with others reaching similar

holdings. Flowers v. Delta Airlines, 1nc., No. 00 CV 783 (lLG), 2001 WL 1590511, at *3-5 (E.D.N.Y. Nov. 7, 2001); Loiacono v. Stuyvesant Bagels, Inc., 29 A.D.3d 53'7, 538, 814 N.Y.S.2d 695, 696 (2006); McConnell v. Budget Inns of Am., 129 Ohio App. 3d 675, 621,778 N.E.2d 948,957 (1998). Other Courls have criticized this approach, holding that a business proprietor such as a restaurant "retains exclusive control

of

seating while

it is being properly used by patrons."

Judson v. Cantelot Food, Lnc.,104 Nev.324,328,156 P.2d 1198, 12O1

&n.4 (1988) (collecting

cases).

It

does not appear that this Court has had an opportunity to resolve this

it doing so, collapsing chair,

seats, tables, and the like

will

conflict. Without

continue to lead to injuries within

Minnesota without the state's Distnct Courts benefiting from this Courl's guidance.

Moreover, in this case, unlike those cited, Petitioners did not own both the premises and the instrumentality of P

.2d, 120, 124

(ú.

injury. McDonald v. Smitty's Super

Valu, Inc., 751 An2.316,320, 151

App. 1988). Quite recently, a Georgia Court refused to apply res ipsa

loquitur in similar circuÍrstances, holding that a thrift store was not in exclusive control over

a

donated chair that collapsed when a customer sat upon iT. Family Thrift, Inc. v. Birthrong,336

Ga. App. 601, 605, 785 S.E.2d 547, 552 (2016), reconsideration denied (Mar. 31, 2016), cert. denied (Oct.3,2016).

As mere renters of the table, Petitioners have additional arguments on the exclusìve control element that the Court should consider. That is all the more true since the table at issue

in this

case was a

folding table, meaning it was explicitly meant to collapse. Guidance from this

Court is appropriate under Minn. R. Civ. App. P. 117, subd. 2(a), (d).

Moreover, in reaching its holding the Court ofAppeals igrored this Courl's prior caselaw and applied the "California

rule." That rule

extends res ipsa loquitur claims to scenarios where

'1rìultiple defendants have acted collectively and all possible causes of the alleged injury were under the exclusive control of the defendants collectively, even though no single defendant may have had such exclusive control." Ybarra y. Spangard, I54 P.2d 687 (Cal. 1944). This Court has rejected its application. Spannaus v. Otolaryngolog Clinic,242 N.W.2d 594, 597 (Min¡. 1976).

Nobody can state, with authority, why this table collapsed (in parl because London Road spoliated evidence).

It could be that the table had a latent manufacturing defect; was damaged

before it was delivered to Petitioners, or during that delivery; that someone caused it to collapse

negligently; or even that the table was tampered with as some sort of practical joke. All of these are "equally probable," or more probable, than any fault attributed to Petitioners. Both London

Road's President and Plaintiffs excluded experl believed that the table likely collapsed as the result of force applied by some patron. The Court of Appeals ignored this evidence, effectively applying the Califomia rule. Thus, review is also called for under Minn. R. Civ. App. P. 117,

subd.2lc).

C.

This Court should Review the Decision of the Court of Appeals because the Rental Agreement Constitutes a Contract of Adhesion

Petitioners also ask the Court to review the decision of the CouÍ ofAppeals to uphold the

exculpatory and indemnity clauses, the latter of which purportedly applies

in

case

of London

Road's own negligence. Neither clause is favored. Schlobohm v. Spa Petite, Inc. 326 N.W.2d

920,923 (Minn. 1982); National

lþdro

Sys. v.

M.A. Mortenson Co.,529 N.W.2d 690,694

(Mìnn. 1995). The Rental Agreement constituted a contract of adhesion. It was presented on a take-it-

orleave-it basis, in a moment ofbargaining power disparity, .,¡/ithout opportunity for negotiation, and concemed necessary items for Petitioners. Anderson v. McOskar Enterprises, Inc.,'172

N.W.2d 796, 800 (Minn. Ct. App. 2006).

The Court of Appeals dismissed the notion that the tables were a necessity for Petltioner's guests. It appears that the Courl of Appeals does not believe that it is important for patrons to have a place to

sit. But there is, at the very least,

a question

of fact over whether or

not such seating is "a service subject to public regulation oÍ of some practical necessity for some members of the

public." Beehner y. Cragun Corporation,636 N.W.2d 821, 828 (Minn. Ct. App.

2001) (emphasis added).

By holding

other-wise the Courl

of Appeals ignored the broad principles

necessity and Petitioners' contention to the contrary.

If this

goveming

published decision is allowed to

stand, exculpatory and other dislavored contractual provisions

will be given broad force

and

effect, pennitting \¡r'rongdoers to avoid responsibility for their own actions, even when contracts

of adhesion 1

are presented. For that reason, review is appropriate under

Minn. R. Civ. App.

P.

17, subd. 2(a), (d).

D.

This Court should Review the Decision of the Court of Appeals that the lndemnity Clause applied to Lond Road's own acts of Negligence Despite an Express Provision Providing that to be the Case

Finally, this Court should grant review because the District Courl and Court of Appeals both ignored established precedent of this Cou1, and held that the indemnity ciause in the Rental Agreement applied to London Road's own negligence. Again, such agreements are not favored under Minnesotalaw. National Hydro Sys,529 N.W.2d at 694. They are strictly construed, and

must contain "an express provision in the contract to indemnify the indemnitee for liability occasioned

by its own negligence; such an obligation will not be found by implication;'

Farmington Plumbing & Heatíng Co. v. Fischer Sand & Aggregate, [nc.,287 N.W.2d 838, 842

(Minn. 1979) (emphasis added).

No express provision to indemnify London Road for its own negligence exists Dewitt v. London Rd. Rental Ctr., izc., E8

_N.W.2d

.

here.

No. A16-7794,2071 WL 3378868,

at

(Minn. Ct. App. Attg. 7 ,2O17) ("We acknowledge that the indemnity clause in this case does

not expressly state that Tower Tap will indemnify London Road for claims for which London Road is, or may be claimed to be, liable."). The Cou¡t of Appeals relied on Bogatzki v. Hoffman, 430 N.W.2d 841, 845 (Mim. App. 1988), in which the Court held that such a contract "need not

expressly refer to negligence, however,

if

the language of the contract necessarily ìncludes

claims of the ìndemnitor's negligence."

The Courl of Appeals reasoned that it must imply indemnity for London Road's own negligence, or render language indicating that London Road would be responsible for its own

intentional misconduct "meaningless." This is exactly the type of "implied indemnity" that this Court has proscribed- The Courl of Appeals has muitiple published opinions permitting such

implications, which

will govem District courts

throughout the state. Review is appropriate

under Minn. R. Civ. App. P. 117, subd.2(a), (c), and (d).

IV.

CONCLUSION Petitioners are being held solely responsible for harm caused by a coliapsed folding

picnic table that Petitioners did not own, while it was in the control of the injured party, and without any ability to detemine why the collapse occurred. Petitioners'had the table for less than three days at the time

of

collapse, yet Petitioners are being treated as warrantors

of its

condition because the table's orr"ner is permitted to rely upon exculpatory and indemnifrcation clauses, contrary to

law. Petitioners respectfully

requests further review of this case.

Respectfully submitted,

Date: Septembet 5'n, 2017

/s/ Timorhy P. Tobin Timotþ P. Tobin#127887 Brock P. Alton #0388335 GISLASON & HT]NTER LLP Attomeys for Respondent 701 Xenia Avenue South, Suite 500 Minneapolis, MN 55416 Phone: (763) 225-6000 Fax: (763) 225-6099

CERTIFICATION OF BRIEF LENGTH This petition complies with the word limitations of Minnesota Rule of Civil Appellate Procedure 117, subdivision 3.

It was prepared using Microsoft Word 2010, which reports that the petition contains

1,997 words.

Date: Seotember 5th^ 2017

/st Timorhy P. Tobin Timothy P. Tobin #127887 GISLASON & HI]NTER LLP Attomeys for Respondent 701 Xenia Avenue South, Suite 500 Minneapolis, MN 55416 Phone: (763) 225-6000 Fax: (763) 225-6099