                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A15-1358

                                     Michael Barlow,
                                       Appellant,

                                             vs.

                            Hospitality Center for Chinese, Inc.,
                                        Respondent.

                                    Filed May 31, 2016
                                         Affirmed
                                      Hooten, Judge

                              Hennepin County District Court
                                 File No. 27-CV-14-434

Todd M. Johnson, Scott A. Johnson, Wilbert V. Farrell, Hellmuth & Johnson, PLLC,
Edina, Minnesota (for appellant)

David J. Hoekstra, David M. Werwie & Associates, St. Paul, Minnesota (for respondent)

         Considered and decided by Hooten, Presiding Judge; Larkin, Judge; and Rodenberg,

Judge.

                         UNPUBLISHED OPINION

HOOTEN, Judge

         Appellant challenges the district court’s grant of summary judgment in favor of

respondent, arguing that the district court erred in its application of the law and by making

improper factual determinations. We affirm.
                                          FACTS

       Respondent Hospitality Center for Chinese, Inc. (HCC) is a nonprofit organization

that provides hospitality to college students and their families from China, Taiwan, and

Hong Kong. As part of its outreach activities, HCC sponsors an annual summer picnic at

the University of Minnesota. Appellant Michael Barlow, a volunteer for HCC, assisted

with the picnic each summer from 1999 to 2012. Barlow’s volunteer duties included

organizing and preparing food to be served at the picnic and bringing a corn roaster to the

picnic grounds to roast corn during the picnic. Each year, Barlow would pick up the corn

roaster with his truck and haul it to the picnic grounds. At the picnic, Barlow would train

volunteers to operate the corn roaster under his supervision, and he would also operate the

corn roaster himself.

       The corn roaster was an electrically powered device that rotated ears of corn through

a heating element at 500 degrees until they were fully roasted. Those operating the corn

roaster would be within inches of the extreme heat. Because of the constant heat emanating

from the corn roaster, volunteers had to operate it in pairs, and generally no person was

supposed to operate the corn roaster for more than two hours at a time. From 1999 to 2011,

Barlow always placed the corn roaster under the shade of trees to reduce the corn roaster

operators’ exposure to heat. Prior to the 2012 picnic, Barlow never had any physical health

issues related to his volunteer work at the picnics, having never fallen, fainted, or suffered

a heat stroke.

       Barlow volunteered to be a “team captain” in charge of food preparation for the

2012 picnic. He understood that his role would be to implement safety rules regarding the


                                              2
operation of the corn roaster and to train other volunteers to operate the corn roaster at the

picnic, having no expectation that he would actually operate the corn roaster, except to

assist others as needed. It was anticipated that more than 1,600 ears of corn would be

served at the 2012 picnic. HCC assured Barlow that he would have an ample amount of

volunteers to train in the operation of the corn roaster. When Barlow volunteered to be a

team captain, he did not agree to operate the corn roaster for the entire time needed to roast

1,600 ears of corn. Rather, he expected that the volunteers assured by HCC would operate

the corn roaster under his supervision. Barlow, who was an obese 67-year-old man with

diabetes at the time of the 2012 picnic, never informed anybody at HCC of any health

issues that might impact his ability to perform his volunteer duties at the picnic.

       On the day of the 2012 picnic, Barlow arrived at the picnic grounds with the corn

roaster. Upon arrival, he was informed that he would not be able to set up the corn roaster

in the shade underneath the tree in the location where he had always set it up in previous

years. The university required the corn roaster to be placed in a different location near a

permanent grounding rod that the university had installed that year. Barlow opposed

moving the corn roaster, complaining that there was no shade in the new location, but the

corn roaster was moved to the new location over his objection.

       Barlow arrived two hours before the corn needed to be served, but no volunteers

came to be trained. When the time came for the corn to be roasted, Barlow plugged in the

corn roaster to prepare it for roasting. Barlow waited for other volunteers as long as he

could, but at approximately 2:00 p.m., he began to roast the corn by himself to ensure that

the roasted corn would be available to picnic patrons. As he roasted the corn, he continued


                                              3
hoping and expecting that volunteers would arrive so that he could train them to operate

the corn roaster, but no volunteers ever appeared. Barlow did not leave the vicinity of the

corn roaster once he began roasting the corn because the extremely high temperature of the

corn roaster coupled with the proximity of the picnic patrons made for a dangerous

situation. Operating the corn roaster required Barlow to take off and replace an ear of corn

every four to six seconds. He did not turn the corn roaster off to take a break because

turning the corn roaster off would render it unusable for the remainder of the picnic.

Barlow claimed that because he had to attend the corn roaster continuously and because of

the rapid pace at which he had to operate the corn roaster, he was unable to contact anybody

in a supervisory role about his need for assistance, even though he carried a cell phone and

had one of the supervisor’s telephone numbers.

       From 2:00 p.m. until approximately 5:00 p.m., Barlow operated the corn roaster by

himself. Barlow had brought his own cooler containing bottles of Gatorade and water so

that any volunteers who neglected to bring their own fluids could hydrate themselves while

they operated the corn roaster, but Barlow, being the only one operating the corn roaster,

ended up consuming all the water and Gatorade himself. The HCC director in charge of

assigning the picnic volunteers never came to the corn roasting station to ask if Barlow

needed assistance during the three hours that he operated the corn roaster. According to

Barlow, the director later said that she “had simply forgotten about” him at the picnic and

therefore had never sent any volunteers to take over the corn roasting operation. The

director denied making that statement but acknowledged that she never had any expectation




                                             4
that Barlow would operate the corn roaster for three hours at the picnic and stated that she

expected volunteers to assist him with the corn roasting.

       After he finished roasting all 1,600 ears of corn, Barlow turned off the corn roaster.

When the corn roaster had cooled to a safe temperature, he began to walk to the main tent

area where food was being served and, as he was walking to the main tent area, he suddenly

fainted and collapsed. Before collapsing, he exhibited no symptoms that would have

served as a warning that he was about to faint. Barlow has no recollection of his fall. After

he regained consciousness, people gathered around and attempted to help him. One person

retrieved a bottle of Gatorade for Barlow. After drinking the Gatorade, Barlow walked

over to the main tent and ate a plate of food. While eating, Barlow began to experience

pain in his right shoulder area. He went back to his truck and, using predominantly his left

hand, disassembled the corn roaster and loaded it back into his truck with the aid of another

person.

       Barlow left the picnic, intending to return the corn roaster, but he instead drove

home because he felt faint and dizzy while driving and was still in pain. When he arrived

at his home, he called his wife and told her that he could not get out of his truck because

he was in too much pain and that he needed to go to the hospital. Barlow went to the

hospital, where a doctor informed him that he had suffered a heat stroke due to severe

dehydration. Barlow was diagnosed with a rotator cuff injury in his right shoulder and

ultimately had shoulder surgery.

       Barlow sued HCC for negligence. After discovery, HCC moved for summary

judgment, which the district court granted. This appeal follows.


                                             5
                                       DECISION

       On appeal from summary judgment, we review de novo whether there are any

genuine issues of material fact and whether the district court erred in its application of the

law. STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76–77 (Minn. 2002).

“We view the evidence in the light most favorable to the party against whom summary

judgment was granted.” Id. Summary judgment is appropriate when “the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits,

if any, show that there is no genuine issue as to any material fact and that either party is

entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03.

       To maintain a claim of negligence, a plaintiff must prove the following elements:

“(1) the existence of a duty of care; (2) a breach of that duty; (3) an injury; and (4) that the

breach of the duty was a proximate cause of the injury.” Doe 169 v. Brandon, 845 N.W.2d

174, 177 (Minn. 2014). “A defendant is entitled to summary judgment as a matter of law

when the record reflects a complete lack of proof on an essential element of the plaintiff's

claim.” Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995). Here, the district court

granted summary judgment for HCC because it concluded that “[t]he record in this case

shows a lack of proof as to the essential element of duty.”

       “Generally, the existence of a legal duty is an issue for the court to determine as a

matter of law.” Larson v. Larson, 373 N.W.2d 287, 289 (Minn. 1985). “A volunteer is

one who does or undertakes to do that which he is not legally or morally bound to do.”

White v. Great N. Ry. Co., 142 Minn. 50, 53, 170 N.W. 849, 850 (1919). When a volunteer

undertakes to do a task, “he does so at his own risk.” Id. at 53, 170 N.W. at 851. “To one


                                               6
who is a volunteer, properly speaking, even if assisting in the master’s work at the request

of a servant, no affirmative duty to exercise care is due originally, but only after knowledge

of peril.” Kelly v. Tyra, 103 Minn. 176, 179–80, 114 N.W. 750, 752 (1908); see also Evarts

v. St. Paul, Minneapolis & Man. Ry. Co., 56 Minn. 141, 147, 57 N.W. 459, 460 (1894)

(“[I]f, after discovering such volunteer has placed himself in a position of danger, even

through his own negligence, the servants fail to exercise reasonable care to avert the danger,

the master will be liable.”).

       A defendant also owes a duty “when the defendant’s own conduct creates a

foreseeable risk of injury to a foreseeable plaintiff.” Brandon, 845 N.W.2d at 178

(emphasis omitted) (quotation omitted). In close cases, foreseeability in the context of duty

is a question for the jury, but when a case does not present a close question of foreseeability,

the district court may decide the issue as a matter of law. Id. at 178 n.2. In order for the

risk of the plaintiff’s injury to be foreseeable, it must be objectively reasonable to expect,

not merely conceivably possible. Id. at 178. “If the connection between the danger and

the defendant’s own conduct is too remote, there is no duty.” Id.

       The district court concluded that “[t]here is no evidence in the record to support a

finding that [HCC] had knowledge of the specific risks involved in this case.” The district

court concluded that Barlow, as a volunteer with experience in operating the corn roaster,

“assumed the ordinary and obvious risks of working with the corn roaster,” and HCC

therefore owed him no duty. The district court further determined that the risk of Barlow’s

heat stroke or shoulder injury was not foreseeable to HCC when it moved the corn roaster

to the new location with no shade. Barlow admitted that he fell suddenly, exhibiting no


                                               7
symptoms warning him of an impending collapse. The district court concluded that, if

Barlow himself did not expect any harm before collapsing, HCC could not have expected

any risk of harm.

       We agree with the district court’s reasoning. Critically, Barlow was a volunteer to

whom HCC owed no duty. Barlow argues that he “did not ‘volunteer’ to operate the corn

roaster for three-plus hours in an un-shaded area amongst picnic patrons” and that HCC

should have known that Barlow would be placed in danger by operating the corn roaster

by himself for an extended period of time due to HCC’s failure to provide the promised

volunteers. Barlow is correct that he initially volunteered to supervise other volunteers

who would be roasting the corn and that he would only assist in the corn roasting as needed.

But, by subsequently taking on the corn roasting duties himself after no volunteers showed

up to roast the corn, he extended the scope of his volunteering because he undertook to do

something that he was “not legally or morally bound to do.” White, 142 Minn. at 53, 170

N.W. at 850. By continuing to operate the corn roaster in that capacity, he did so “at his

own risk.” Id. at 53, 170 N.W. at 851.

       Barlow argues that his heat stroke caused by dehydration “should have been

foreseeable to HCC given that a [67]-year-old obese man with diabetes was forced to

continually operate the corn roaster when the HCC-designated volunteers failed to show

up.” But, Barlow never informed HCC of any health issues that would impact his ability

to perform his volunteer duties at the picnic, so HCC could not have known that he was

any more likely to suffer a heat stroke while operating the corn roaster than anybody else.

Moreover, Barlow was, for all intents and purposes, an expert in operating the corn roaster,


                                             8
having operated the machine at numerous prior picnics, and even he appeared not to

recognize any danger in operating the corn roaster, exhibited no symptoms that could have

warned him of his impending collapse, and never experienced health problems at prior

picnics. If Barlow himself could not foresee the risk of collapsing from heat stroke after

operating the corn roaster, the danger was not so obvious as to put HCC on notice of the

risk of Barlow’s injuries. It was not objectively reasonable to expect that Barlow would

suffer a heat stroke, collapse, and injure his shoulder due to HCC’s failure to send the

anticipated volunteers to the corn roaster. Barlow, having assumed the risk of roasting

corn by volunteering to roast all 1,600 ears and having suffered an injury that could not be

foreseen by HCC’s failure to send other volunteers to the corn roaster, was therefore owed

no duty by HCC. Because Barlow cannot establish this essential element of a negligence

claim, summary judgment for HCC was appropriate.

       Barlow also argues that the district court erred by resolving factual disputes in favor

of HCC. In deciding a motion for summary judgment, the district court must view the

evidence in the light most favorable to the nonmoving party. Ahlm v. Rooney, 274 Minn.

259, 262, 143 N.W.2d 65, 68 (1966). The relevant facts for purposes of summary judgment

are material facts. See Minn. R. Civ. P. 56.03. “A fact is material if its resolution will

affect the outcome of a case.” O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn.

1996). The factual matters that Barlow identifies have no impact on the analysis of the

essential element of HCC’s duty. We have viewed the evidence in the




                                              9
light most favorable to Barlow, and we conclude that the district court did not err in

determining that there are no genuine issues of material fact concerning HCC’s duty.

      Affirmed.
