                        This opinion will be unpublished and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
                                   A14-2019

                                  Chad Schirmers,
                                   Respondent,

                                         vs.

                                  County of Anoka,
                                     Appellant.

                                 Filed July 20, 2015
                                      Reversed
                                 Halbrooks, Judge


                            Anoka County District Court
                             File No. 02-CV-13-1273

Gary L. Manka, Katz & Manka, Ltd., Minneapolis, Minnesota; and

Wilbur W. Fluegel, Fluegel Law Office, Minneapolis, Minnesota (for respondent)

Jon K. Iverson, Stephanie A. Angolkar, Iverson Reuvers Condon, Bloomington,
Minnesota (for appellant)

      Considered and decided by Halbrooks, Presiding Judge; Schellhas, Judge; and

Hooten, Judge.

                       UNPUBLISHED OPINION

HALBROOKS, Judge

      On appeal from the denial of its motion for summary judgment, appellant county

argues that there are no genuine issues of material fact and that under the common-
enterprise doctrine, respondent is precluded from bringing a negligence claim against the

county after receiving workers’ compensation benefits from his employer’s insurer. We

reverse.

                                         FACTS

       Respondent Lino Lakes police officer Chad Schirmers was injured by an

accidental bullet ricochet in a training exercise held at the Anoka County Firearms

Range, which is operated by appellant Anoka County on behalf of the Anoka County

Joint Law Enforcement Council. The council was formed over 30 years ago when

members entered into a joint-powers agreement. It is undisputed that Schirmers received

workers’ compensation benefits through his employer, the City of Lino Lakes, which is a

member of the council. At issue is whether Schirmers’s work-related injuries occurred

while the county and city were engaged in a “common enterprise,” which would preclude

Schirmers’s damages claim against the county under the Minnesota Workers’

Compensation Act (the Act).

       During the afternoon of May 5, 2011, Schirmers and two fellow Lino Lakes police

officers participated in a rifle and handgun training exercise. A fourth Lino Lakes police

officer served as the firearms instructor and was directly responsible for the exercise

while it was underway. A retired sheriff’s deputy employed by Anoka County served as

the on-site range master. The parties dispute certain aspects of the range master’s duties,

but they agree that he (1) admitted the city employees to the firearms range, which is

generally open only to employees of council members, (2) remained on-site for the entire

exercise, and (3) reviewed the training plan with the city’s firearms instructor before the


                                            2
exercise began. The range master testified that he periodically walked behind the range

lanes to observe the exercise in progress. The firearms instructor asserts in his affidavit

that he did not observe the range master doing so, that he does not recall him being

present, and that the typical duties of the on-site range master are unrelated to training

exercises.1

        Two and one-half hours into the training exercise, while on the five-yard line

completing a “figure 8” exercise in which officers walked around posts before firing on

command, a bullet fired by one of the three officers’ handguns struck a hardened object,

ricocheted back, and hit Schirmers in the abdomen, injuring him.2 Schirmers underwent

surgery, recovered, and returned to full-duty work by August.            The essence of

Schirmers’s complaint against the county is that the county created dangerous conditions

at the firearms range that caused his injuries.

        The county moved to dismiss the complaint under Minn. R. Civ. P. 12.02(e) in

part on the ground that Schirmers’s claims are barred by the common-enterprise doctrine.

The district court denied the motion, reasoning that the county had not established that

Schirmers “was subject to the same or similar hazards as [county] employees.” After

completion of discovery, the county moved for summary judgment under Minn. R. Civ.

P. 56.03, again arguing that Schirmers’s claims are barred by the common-enterprise



1
    Only Schirmers and the range master were deposed.
2
   The Bureau of Criminal Apprehension (BCA) investigated and determined that all
three handguns were functioning properly. The BCA was unable to match the bullet to a
specific firearm barrel.

                                              3
doctrine. The district court denied this motion as well, determining that genuine issues of

material fact remain. This interlocutory appeal followed.

                                     DECISION

       “Generally, an order denying a motion for summary judgment is not appealable

. . . .” McGowan v. Our Savior’s Lutheran Church, 527 N.W.2d 830, 832 (Minn. 1995).

But because the county’s appeal raises a legal issue about the application of the common-

enterprise doctrine that could divest the district court of jurisdiction, we accepted

jurisdiction over the appeal.

       On appeal from the denial of a motion for summary judgment, we review

“whether there are any genuine issues of material fact and whether the district court erred

in its application of the law.” Lishinski v. City of Duluth, 634 N.W.2d 456, 458 (Minn.

App. 2001), review denied (Minn. Jan. 15, 2002). “[A] denial of summary judgment is

reviewed de novo.” Martin v. Spirit Mountain Recreation Area Auth., 566 N.W.2d 719,

720 (Minn. 1997). Appellate courts view the evidence in the light most favorable to the

non-moving party. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). “[T]he party

resisting summary judgment must do more than rest on mere averments.” DLH, Inc. v.

Russ, 566 N.W.2d 60, 71 (Minn. 1997).

       Summary judgment is appropriate when the common-enterprise doctrine applies,

and the election of workers’ compensation benefits from the employer precludes a

negligence action against a third party for damages. O’Malley v. Ulland Bros., 549

N.W.2d 889, 897 (Minn. 1996).        “Whether a common enterprise existed is a legal




                                            4
question that we review de novo.” LeDoux v. M.A. Mortenson Co., 835 N.W.2d 20, 22

(Minn. App. 2013).

       Under the Act, when the employer and a third party are engaged in “furtherance of

a common enterprise,” an injured employee must choose between receiving workers’

compensation benefits through his employer or seeking damages in a common-law

negligence action against the third party. Minn. Stat. § 176.061, subds. 1, 4 (2014);

O’Malley, 549 N.W.2d at 897. A common enterprise exists when “the masters have

joined forces and in effect have put the servants into a common pool.” Gleason v. Geary,

214 Minn. 499, 511, 8 N.W.2d 808, 814 (1943).

       The common-enterprise doctrine bars a damages claim based on the negligence of

a third party’s employee when three factors are satisfied: “(1) The employers must be

engaged on the same project; (2) The employees must be [w]orking together (common

activity); and (3) In such fashion that they are subject to the same or similar hazards.”

McCourtie v. U.S. Steel Corp., 253 Minn. 501, 506, 93 N.W.2d 552, 556 (1958). We

address each factor in turn.

       Common Project

       The first McCourtie factor requires that the two employers are working on a

common project. O’Malley, 549 N.W.2d at 895, 897. The district court here made no

express determination on this factor, but its satisfaction is undisputed on appeal. The

common project here could be the use of the firearms range for firearms training. The

county submitted affidavits describing the use and support of the firearms range by

council members, including regularly scheduled county-wide training exercises and an


                                           5
annual “range clean-up” day. Another characterization of the common project could be

the broader law-enforcement collaboration contemplated by the joint-powers agreement,

including emergency dispatch functions, a records-management system, and the firearms

range. Schirmers does not dispute the mechanics of the joint-powers agreement, the

purpose of the council, or that he used the range on May 5 as a function of his employer’s

membership in the council. Whether the common project is defined narrowly as the use

of the firearms range or more broadly as the council’s law-enforcement collaboration in

pursuit of economies of scale, we conclude that the record supports a conclusion that the

county and the city were engaged in a common project.

       Common Activity

       We next consider whether the May 5 training exercise was a common activity. To

be engaged in a “common activity” or “working together,” the employees of the two

employers must do more than merely work together toward a common goal; their

activities must be “interdependent” and not “overlapping minimally.” Id. at 895. The

test focuses on the workers’ activities, not the employers’ goals. Id.

       The Gleason decision explains that application of the common-enterprise doctrine

is proper when “the work[ers] so employed should stand in the same relation to each

other and to their employers as if they were working for a common employer.” Gleason,

214 Minn. at 509, 8 N.W.2d at 813. Consistent with this reasoning, our caselaw provides

that there is no common activity when different employee groups work on the same

construction project but in different areas and when it is never contemplated that the

employees would work together. See McCourtie, 253 Minn. at 512, 93 N.W.2d at 560


                                             6
(concluding that because the steel workers would first have to set the structure before the

plumbers could install the plumbing they were not “working together”). Nor is there a

common activity when two groups engage in simultaneous tasks near each other but do

not interact with or assist each other. See LeDoux, 835 N.W.2d at 23 (“Working in the

same area at the same time does not alone establish an interdependent common activity

. . . .”).

          But when two employee groups work in close proximity and regularly coordinate

their work, a common activity exists. See O’Malley, 549 N.W.2d at 895-96; Alberts v.

United Stockyards Corp., 413 N.W.2d 628, 630 (Minn. App. 1987); Higgins v. Nw. Bell

Telephone Co., 400 N.W.2d 192, 194 (Minn. App. 1987), review denied (Minn. Mar. 25,

1987). The two employee groups need not fulfill the same functions. See Sorenson v.

Visser, 558 N.W.2d 773, 776 (Minn. App. 1997) (concluding that employees who had

“distinctly different functions” were engaged in a common activity when “their duties

were interdependent” in accomplishing their work). A longstanding, close relationship

between the two employers can inform a determination of whether their employees

worked interdependently. See Alberts, 413 N.W.2d at 630; Higgins, 400 N.W.2d at 194.

          Schirmers contends that the city’s employees functioned independently of the

county on May 5 and that the range master “merely opened the door,” much like an

employee accepting delivery of supplies from a third party. See Schleicher v. Lunda

Constr. Co., 406 N.W.2d 311, 314 (Minn. 1987).             In support of this contention,

Schirmers relies on his firearms instructor’s affidavit, in which the instructor asserts that

he had complete responsibility for the training exercise. But the instructor acknowledges


                                             7
that, before beginning the training session, he informed the range master that the planned

exercise was a “simple qualification shoot” that would incorporate movement and

explained “the manner in which this movement would be performed, i.e., that a weapon

would not be drawn until the shooter was facing down range and the weapon would be

pointed down range at all times.” Schirmers does not explain why the city’s firearms

instructor would share his safety plan with the county’s “doorman.” The only logical

conclusion that can be drawn from the instructor’s description is that the range master

had some oversight over the exercise.

       The instructor’s description of his conversation with the range master is consistent

with the range master’s own recollection.

              On May 5, 2011 I reviewed the “figure 8” exercise proposed
              by Lino Lakes Police Department. In reviewing the proposed
              training exercise I had some concerns and I spoke with . . .
              [the firearms instructor] regarding those concerns. [The
              instructor] [assured] me officers would not fire until he
              whistled and they were directed to stop and turn and then fire.
              After speaking with [the instructor] I approved the training
              proposal.

The range master testified in his deposition that his specific concern was that “an officer

would become over-anxious and draw his weapon before he had completed and made a

turn towards his target.” The range master also testified that he had the authority to veto

the training exercise, which the firearms instructor does not explicitly deny.

       The firearms instructor’s affidavit also provides that he did not “recall” or

“observe” the range master “present in the area where the firing was taking place.” But

these assertions do not directly contradict the range master’s account that



                                             8
              [w]hile Lino Lakes Police Officers were using the course I
              would periodically walk out and inspect the course. I would
              stand behind officers on the grounds immediately behind the
              range lanes where they could obviously see me while they
              continued to conduct their training exercise. While on the
              grounds immediately behind the range lanes I was within the
              area of the range where officers were training.

In his deposition, the range master testified that he left the range house and observed the

training exercise every 20 to 30 minutes. While the firearms instructor’s assertion that he

did not observe the range master in the area behind him during the exercise may cast

some doubt on the range master’s account, a “metaphysical doubt as to a factual issue

will not defeat a summary judgment motion.” See DLH, 566 N.W.2d at 71 (quotation

omitted).

       The only other evidence in the record about the range master’s role and presence

throughout the afternoon is Schirmers’s own affidavit, in which he asserts that the range

master was not “present in any area where the firing was taking place.” This assertion

alone cannot raise a genuine issue of material fact sufficient to defeat summary judgment.

See Risdall v. Brown-Wilbert, Inc., 759 N.W.2d 67, 72 (Minn. App. 2009) (“A self-

serving affidavit that contradicts other testimony is not sufficient to create a genuine issue

of material fact.”), review denied (Minn. Mar. 17, 2009).

       After careful review and viewing disputed facts in the light most favorable to

Schirmers, the record demonstrates that the county and city were members of a council

that collaborated to provide law-enforcement training. The city used the firearms range

on May 5 as a function of its membership in the council. A county employee admitted

the city employees to the range. A city employee led the training exercise after reviewing


                                              9
the training plan with the county employee. The county employee periodically observed

the training exercise but was unnoticed by city employees. A city employee immediately

notified the county employee of Schirmers’s injury.

       We conclude based on these facts that the city and county employees were

working together in a common activity. The close, long-standing relationship of the city

and county here is formalized by a joint-powers agreement. The training at issue took

place at a facility operated for council members. The range master and the firearms

instructor had distinct but interdependent roles in the qualification shoot. In sum, city

and county employees did not work separately and distinctly for the common goal of

training their own officers—they each fulfilled necessary functions for the training of the

city’s officers on the afternoon of May 5.       We therefore conclude that the second

McCourtie factor is satisfied.

       Same or Similar Hazards

       “The third McCourtie factor requires that employees be subject to the same or

similar hazards for the court to find that a common enterprise existed between the two

employers.”    O’Malley, 549 N.W.2d at 896.        This requirement “does not demand

exposure to identical hazards, only similar hazards.” Olson v. Lyrek, 582 N.W.2d 582,

584 (Minn. App. 1998), review denied (Minn. Oct. 20, 1998). In evaluating whether

different employee groups are exposed to similar hazards, “we make a comparison of the

general risks to which workers are exposed as a result of the tasks being performed.” Id.

       In O’Malley, Higgins, and Alberts, the supreme court and this court determined

that different employee groups faced similar hazards although they were not shoulder to


                                            10
shoulder at the moment of injury. In O’Malley, the supreme court determined that the

hazards faced by excavator operators were “sufficiently similar” to those of the dump-

truck drivers who hauled away the excavated material. 549 N.W.2d at 890-91, 897. In

Alberts, because any worker could have been injured by livestock or exposure to the

same physical conditions, we concluded that “although employees from each group may

not perform their duties simultaneously, they work in close physical proximity and are

subject to almost identical work hazards.” 413 N.W.2d at 630. And in Higgins, we noted

that all employees were generally susceptible to injuries caused by hazardous conditions

in a washroom near the work area and the work area generally, and thus, the two groups

faced similar hazards under the third McCourtie factor. 400 N.W.2d at 194-95.

       Here, the district court characterized the hazard as “the risk of defendant’s

personnel being struck by a ricochet.” But caselaw directs us to compare the “general

risks” to which the employees are exposed as a result of performing their duties and that

comparison is not limited to the exact risk that caused the injury. See O’Malley, 549

N.W.2d at 897; Alberts, 413 N.W.2d at 630; Higgins, 400 N.W.2d at 194-95. We

conclude that while the exercise was underway, the city’s officers participating in

training and the firearms instructor periodically standing behind them were all exposed to

the general risk of injury related to the discharge of rifles and handguns.

       Based on its narrow characterization of the hazard, the district court ruled that

genuine issues of material fact precluded a determination of whether any county

employee was exposed to a similar hazard, citing the parties’ disagreement about the

specific location of the range master throughout the training exercise. But the range


                                             11
master’s affidavit and deposition testimony provide that he periodically stepped behind

the range lanes to observe the training exercise in progress, the firearms instructor’s

affidavit does not directly contradict that evidence, and Schirmers’s affidavit alone is

insufficient to raise genuine issues of material fact as to the range master’s presence. 3 “A

fact is material if its resolution will affect the outcome of a case.” O’Malley, 549 N.W.2d

at 892. Viewing the evidence in the light most favorable to Schirmers, we conclude that

the affidavits he submitted in opposition to the county’s summary-judgment motion do

not create a genuine issue of material fact precluding a determination of the third

McCourtie factor.

       When the range master was present behind the city employees during training, he

too was exposed to the risk of injury related to the discharge of firearms. The risk of

injury to the range master was not identical to the risks facing the city’s officers. But

because a firearm can cause injury from a distance (in contrast with typical hazards

addressed in common-enterprise analysis), the hazards faced by the range master are not

“fundamentally different.” See Olson, 582 N.W.2d at 584. We acknowledge that the

range master was not present behind the range lanes at the precise moment that Schirmers

was injured. But because our focus is on the general risks facing workers at the firearms


3
  The firearms instructor also asserts that “at no time during the exercise was [the range
master], or any other employee of [the county] in the physical position where they were
susceptible to being struck by a ricochet from the firing range and the training exercise
being conducted by the Lino Lakes Police Department on that date.” We note that
speculative conclusions cannot create genuine issues of material fact. Bob Useldinger &
Sons, Inc. v. Hangsleben, 505 N.W.2d 323, 328 (Minn. 1993) (“Mere speculation,
without some concrete evidence, is not enough to avoid summary judgment.”).
Moreover, the general risks at the firearms range are not limited to ricochet.

                                             12
range, this does not resolve our inquiry. Both county and city employees were exposed

to the risk of injury related to the discharge of firearms during the May 5 training

exercise. Therefore, we conclude that the third McCourtie factor is satisfied.

       The context of this case does not fit neatly into Minnesota case law analyzing the

common-enterprise doctrine. But applying the relevant factors to the record before us,

we conclude that each is satisfied. Based on the record evidence about the manner in

which the city and county conduct firearms training, and in particular how it was

conducted on May 5, the county and city “have joined forces and in effect have put the

servants into a common pool.” Gleason, 214 Minn. at 511, 8 N.W.2d at 814. The county

is therefore entitled to summary judgment.

       Reversed.




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