                        This opinion will be unpublished and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
                                   A15-1751

                                     Jessica Kelly,
                       as Trustee for the heirs and next-of-kin of
                          Richard Roy Washburn, Deceased,
                                      Respondent,

                                           vs.

                              Kraemer Construction, Inc.,
                                     Appellant.

                                 Filed July 25, 2016
                              Reversed and remanded
                                 Rodenberg, Judge
                             Dissenting, Bratvold, Judge

                            St. Louis County District Court
                             File No. 69DU-CV-14-2794

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

Timothy R. Murphy, Cara C. Passaro, Murphy & Passaro, PA, Mendota Heights,
Minnesota (for appellant)

      Considered and decided by Bjorkman, Presiding Judge; Rodenberg, Judge; and

Bratvold, Judge.

                       UNPUBLISHED OPINION

RODENBERG, Judge

      Appellant Kraemer Construction appeals the denial of its motion for summary

judgment in a wrongful-death action based on negligence. We conclude that, even viewing
the evidence in the light most favorable to the trustee for the heirs and next-of-kin of

decedent, appellant and the decedent’s employer were engaged in a common enterprise at

the time of the accident. We therefore reverse and remand for the entry of summary

judgment dismissing all claims against Kraemer.

                                         FACTS

       Richard Washburn was killed by electrocution on October 4, 2012 while on the job

as an employee of Ulland Brothers, Inc.          Respondent Jessica Kelly, the mother of

Washburn’s two minor children, collects workers’ compensation benefits through Ulland

on behalf of the children. In this suit, Kelly, as trustee for Washburn’s heirs and next-of-

kin and respondent in this appeal, seeks tort damages for Washburn’s death arising from

the negligence of Kraemer.

       On the day Washburn was killed, he was working with others along County Road

23, just north of Highway 210 in the City of Wright, Carlton County, Minnesota.

Washburn’s employer, Ulland, is a general contractor and had sub-contracted with

Kraemer to replace deteriorated steel culverts that allowed a roadway to go over a stream.

The job required a crane to lift and lower two cement culverts into the streambed. Kraemer

supplied a crane and two workers. Ulland supplied the rigging and four workers.

       The district court summarized the undisputed evidence about who did what, as

follows:

              Each man had a specific job: Terry Rassier [Ulland] operated
              a bulldozer that would push the culverts to a place so that the
              crane could pick them up; Rick Washburn [Ulland] would
              manually guide the culvert boxes while they were lowered;
              Jeremy Wright [Ulland] would rig the crane cable to the culvert


                                             2
             prior to them being lifted and then once set he would go inside
             the culverts and connect the two culvert sections together; Matt
             Kisley [Ulland] assisted Jeremy Wright in connecting the
             culvert pieces; Mike Bergstrom [Kraemer] operated the crane;
             and Roger Poukka [Kraemer] was Mr. Bergstrom’s oiler,
             essentially a signaler from the ground to ensure accuracy and
             safety of the culverts placements.

Workers from both crews testified that, although the assignment of tasks and

responsibilities was clear, they would assist one another as needed. For example, Poukka

(Kraemer) helped to maneuver the culverts as they were lowered into place and Washburn

(Ulland) gave instructions to Bergstrom (Kraemer) as he operated the crane.

      The crew discussed the danger posed by the proximity to the crane of an overhead

power line. Early in the morning, before the first culvert was placed, Ulland employees

measured a safe zone and marked an appropriate location for the crane to park for

placement of the first culvert. The Kraemer crane operator, Bergstrom, double-checked

and approved the measurements and markings. Later in the day, Bergstrom worked with

the second Kraemer employee, Poukka, to re-park the crane for placement of the second

culvert, approximately mirroring the parking location for the first culvert but without

measuring or marking the ground.

      The parties agree that a crane’s boom and cable should generally stay at least ten

feet away from power lines, because electricity can arc through the air from one conductor

to another under certain conditions, and because power lines can swing in the wind. There

was misty rain and wind at the time of the accident.

      The first culvert was placed without incident. As the second culvert was being

placed, Washburn grabbed it with his hands to maneuver it, and was electrocuted. The


                                            3
crew administered CPR and called for an emergency vehicle, but Washburn passed away

within minutes. Poukka also felt a shock as he briefly touched the culvert, but he was not

seriously injured.

       During this litigation, Ulland and Kraemer employees testified that no part of the

crane touched the power lines, but that the crane cable was about five to eight feet away

from the power lines at the time Washburn was electrocuted. The record evidence indicates

that either electricity arced from the power line into the crane’s cable, or the power lines

came into momentary direct contact with the cable due to wind and then electricity traveled

down the cable into the cement culvert.

       Kraemer moved for summary judgment, claiming that the district court lacked

subject-matter jurisdiction under the Workers’ Compensation Act and the common-

enterprise doctrine. The district court denied Kraemer’s motion for summary judgment,

concluding that genuine issues of material fact existed concerning the applicability of the

common-enterprise doctrine. This appeal followed.

                                      DECISION

I.     Appeal`ability and standard of review

       Generally, an order that denies a motion for summary judgment is not appealable

unless the district court has certified that the question presented is important and doubtful.

Minn. R. Civ. App. P. 103.03. Here, the district court denied Kraemer’s motion to certify

the question. But “an order denying summary judgment in an employee’s negligence

action is immediately appealable when dismissal is sought based on the district court’s lack

of subject matter jurisdiction.” McGowan v. Our Savior’s Lutheran Church, 527 N.W.2d


                                              4
830, 831-32 (Minn. 1995). “Where the [Workers’ Compensation] Act provides the

employee’s exclusive remedy, the district courts have no jurisdiction.” Id. at 833. Because

Kraemer seeks dismissal of the suit for want of subject-matter jurisdiction, the district

court’s order denying summary judgment is immediately appealable.

       We review summary-judgment decisions de novo. LeDoux v. M.A. Mortenson Co.,

835 N.W.2d 20, 22 (Minn. App. 2013). We determine whether any genuine issues of

material fact exist and whether the district court erred in applying the law. Mumm v.

Mornson, 708 N.W.2d 475, 481 (Minn. 2006). “A fact is material if it affects the outcome

of the case.” Yath v. Fairview Clinics, N.P., 767 N.W.2d 34, 40 (Minn. App. 2009). In

determining which facts are “material” for summary judgment, we are mindful that “[t]he

common enterprise test focuses on the activities of the workers, rather than the common

goals of the employers . . . .” O’Malley v. Ulland Bros., 549 N.W.2d 889, 895 (Minn.

1996). We view the evidence in the light most favorable to the party opposing summary

judgment. Frieler v. Carlson Mktg. Grp., Inc., 751 N.W.2d 558, 564 (Minn. 2008). Here,

we view the evidence in the light most favorable to Kelly.

II.    Common-enterprise test

       Under the Workers’ Compensation Act, an injured employee (or the representative

of a deceased employee) may seek workers’ compensation benefits from the employer or

sue a third party for damages, but not both, if the employer and the third party were engaged

“in the due course of business in . . . furtherance of a common enterprise” at the time of the

injury. Minn. Stat. § 176.061, subds. 1, 4 (2014); LeDoux, 835 N.W.2d at 22. Two

employers are engaged in a “common enterprise” when (1) they are working on the same


                                              5
project, (2) their employees are “working together on a common activity,” and (3) their

employees are “exposed to the same or similar hazards.” LeDoux, 835 N.W.2d at 22 (citing

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

         The issue is whether Kraemer and Ulland were engaged in a common enterprise at

the time of Washburn’s death. If the two employers were engaged in a common enterprise,

the Workers’ Compensation Act is the exclusive remedy because Kelly has collected

workers’ compensation benefits. Under the first factor of the three-part test, the parties

agree that the two crews were working on the “same project.” The parties disagree about

the other two factors.

“Working together on a common activity”

         Respondent’s principal argument on appeal is that there is a genuine issue of

material fact concerning the common-activity factor. The common-activity factor is

satisfied where “[i]t was not only contemplated that [two groups of employees] would work

together, [but that] it was essential to avoid chaos at the site.” O’Malley, 549 N.W.2d at

896. “To be common, the employees’ activities must not merely overlap minimally, they

must be ‘interdependent.’” LeDoux, 835 N.W.2d at 23 (quoting O’Malley, 549 N.W.2d at

895). “The test emphasizes the common activities of the workers rather than the common

goals of the employers.” Schleicher v. Lunda Constr. Co., 406 N.W.2d 311, 313 (Minn.

1987).

         For example, we have held that two groups of employees who independently

contribute to “building of a structure” do not satisfy the common-activity prong. LeDoux,

835 N.W.2d at 23 (reversing summary judgment on the common-enterprise doctrine where


                                            6
two groups of employees worked on different parts of a building, did not know each other’s

names, and did not help each other). On the other hand, the Minnesota Supreme Court has

held that the employers of a dump-truck driver and a road-grader driver were engaged in a

common activity when one rear-ended the other at the site of a shared road-repair project.

O’Malley, 549 N.W.2d at 895-96 (affirming summary judgment where two groups of

employees exchanged equipment, sought advice from each other’s supervisors, and worked

interdependently on specific tasks throughout a summer-long project).

      Here, the district court concluded that it could not “definitively rule that the parties

were engaged in a common activity,” and that “there is a question of fact as to whether or

not the Ulland employees were even necessary for the Kraemer employees to perform the

crane work and vice versa.” The district court added that, “perhaps,” if Poukka had

remained exclusively focused on his assigned task of directing the crane operator, the

accident could have been avoided.1

      The common-activity factor ignores volunteer acts in determining whether the two

crews’ work was interdependent. See Carstens v. Mayers, Inc., 574 N.W.2d 733, 736

(Minn. App. 1998) (holding that a “favor or an accommodation” between two groups of

employees does not affect the common-activity analysis), review denied (Minn. Mar. 26,

1998). Poukka assisted in maneuvering the culverts into place on a volunteer basis;

similarly, any signaling to Bergstrom by Ulland employees would have been voluntary.



1
 The district court seemed concerned that, had Poukka been more diligent in attending to
his assigned tasks, “perhaps” the accident would not have happened. But there is no
authority for the notion that the common-enterprise question depends upon fault.

                                             7
The common-activity factor considers whether Kraemer’s task of operating and directing

the crane was interdependent with Ulland’s task of the maneuvering and placing the

culverts.

       Based on this record, the two crews could not have accomplished the project by

working separately. For many hours, the two crews worked together to lift and place one

and then a second culvert. The two crews needed each other and did not merely work side-

by-side; they worked simultaneously and in close coordination to complete the project.

       During his deposition, Ulland’s foreman Terry Rassier testified that the two crews

had a meeting in the morning on the day of the accident to plan the sequence of tasks and

events. In fact, Rassier explained that Ulland did not own any piece of machinery large

enough to lift the culverts, so Ulland counted on Kraemer to provide the crane and

employees to operate it. And, by all accounts, Ulland supplied the “rigging equipment”

used during the work.2 Also during Rassier’s deposition, the following exchange occurred:

             Q: In setting the pipe on the north side and the south side and
             accomplishing that goal for the day, you needed the Kraemer
             guys and you needed your guys and you needed the two crews
             working together to get the goal accomplished, correct?

             A: Yes, always.

Not only was their working together “essential to avoid[ing] chaos at the site,” see

O’Malley, 549 N.W.2d at 896, it was essential to completing the project. Bergstrom agreed


2
  Poukka (employed by Kraemer) so testified, and the record, on our de novo review,
reveals no contrary evidence. Jeremy Wright (employed by Ulland) assisted with rigging.
Poukka testified that he “would have stopped [Wright] if there was something wrong with”
the way Wright was assisting with the rigging. De-rigging was done by Ulland and
Kraemer employees working together.

                                           8
in his deposition testimony that the employees of Ulland and Kraemer were “working

together towards the common goal of completing this culvert project.” The record

establishes that the two groups worked simultaneously and interdependently “in a common

activity.” See McCourtie, 253 Minn. at 506, 93 N.W.2d at 556. There is no genuine issue

of material fact concerning this second factor.

“Subject to the same or similar hazards”

       “The same or similar hazards 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 analyzing this factor, we compare the “general

risks” to which workers are exposed as a result of the tasks they are performing. Id. We

have previously held that two workers were exposed to similar hazards where a steel

worker directed a crane operator and connected the beams he moved, and the steel worker

was struck by a crane boom. Ritter v. M.A. Mortenson Co., 352 N.W.2d 110, 113 (Minn.

App. 1984) (affirming summary judgment and concluding that pooled crewmembers “were

subject to the same or similar hazards of the job, such as falling beams, electrical shock,

injury from the crane, etc.”).

       The district court “conceded that it is arguable” that Poukka and the Ulland

employees shared risks but that “electrocution was not one of them.” Noting that Poukka

received “a small jolt,” the district court nonetheless concluded that the risk of

electrocution could only be attributed “legitimately” to Washburn. Respondent argues on

appeal that Poukka was exposed to the risk of electrocution, but only as a “volunteer.” We

review the same-or-similar-risks factor de novo.


                                             9
       This third factor does not isolate a particular hazard, not even the particular hazard

that came to fruition. Rather, the proper comparison is of the “general risks to which

workers are exposed as a result of the tasks being performed.” Olson, 582 N.W.2d at 584;

see also O’Malley, 549 N.W.2d at 896-97.

       Kraemer offered the only expert evidence on summary judgment regarding general

risks, and established that the Ulland and Kraemer employees shared the risks of injury

from suspended or falling objects, being struck by the crane or the bulldozer, falling or

slipping in the wet streambed or surrounding area, or from maneuvering the rigging or

other heavy equipment.

       Electrocution was also a shared risk.3 Indeed, the whole crew participated in

precautionary efforts to mitigate the risk of electrocution. Poukka was shocked as he

touched the second culvert being cooperatively lowered into place. Respondent argues that

Poukka’s “volunteering” to guide the culvert into place has relevance to the

common-hazards analysis, but cites no authority for this assertion, and we are aware of

none. The volunteer status of a worker bears on the common-activity factor. Carstens,

574 N.W.2d at 736. Moreover, and even if Poukka had not placed his hand on the culvert,

he was exposed to a general risk of electrocution by arcing, falling wires, or contact with



3
  Respondent’s expert affidavit analyzed only the risk of electrocution. After noting that a
safe working distance from the power lines was ten feet, the affiant concluded that “all of
the people onsite, including the crane operator and signalman employed by Kraemer
Construction, readily admitted that they were working within a range of five to eight feet
away from the power lines.” (Emphasis added.) In other words, respondent’s expert
opinion concurs with appellant’s evidence that all workers of both employers were exposed
to the risk of electrocution.

                                             10
the crane. The two crews specifically discussed and employed measures to minimize the

risk of electrocution to all of the workers.       And even if Bergstrom was safe from

electrocution while he was inside the cab of the crane, his insulation from that particular

risk would have no bearing on whether the two crews shared similar “general risks.” See

Olson, 582 N.W.2d at 584. While Bergstrom’s individual exposure to the general risks is

distinguishable in some ways from the risks to which others were exposed, there is no

genuine issue of material fact concerning whether the two crews were “subject to . . .

similar hazards.” See McCourtie, 253 Minn. at 506, 93 N.W.2d at 556. The two crews

were subject to similar, if not identical, hazards at the worksite.

       Finally, the statute that underlies the McCourtie test provides that a court must

determine whether the two crews were engaged in a “common enterprise.” See Minn. Stat.

§ 176.061, subds. 1, 4. The task for the day was to lift and place the culverts. No genuine

issues of fact affect the legal conclusion that the Ulland and Kraemer crews were engaged

in a common enterprise. We reverse and remand for entry of summary judgment in favor

of Kraemer.

      Reversed and remanded.




                                              11
BRATVOLD, Judge (dissenting)

       I respectfully dissent. While I concur with the majority’s view of the same-project

and common-activity factors, I conclude there is a question of fact regarding the similar-

hazard factor. As a result, I would affirm and remand for trial. Because the record

establishes that (a) the crane spotter would not have been exposed to the hazard of

electrocution if he had performed his assigned task of directing the crane operator and

(b) the crane operator was never exposed to the risk of electrocution, I agree with the

district court that the common-enterprise doctrine does not bar this claim at the summary-

judgment stage. Additionally, as the district court noted, if the crane spotter had strictly

focused on his assigned task, the evidence supports the inference that he may have

prevented the harm to Washburn. This is sufficient to defeat summary judgment.

       This court examines general risks in the context of the specific tasks involved. Olson

v. Lyrek, 582 N.W.2d 582, 584 (Minn. App. 1998), review denied (Minn. Oct. 20, 1998).

Under that analysis, we have previously held that two workers from different crews who

were both injured by the same event did not satisfy the similar hazards factor. Id. (affirming

denial of defendant’s motion for summary judgment on a common-enterprise theory where

a backhoe driver was thrown from the cab and a worker in the trench below was pinned as

the backhoe accidentally lurched backward into the trench); see also Sorenson v. Visser,

558 N.W.2d 773, 776 (Minn. App. 1997) (affirming district court decision that electrician

and backhoe operator faced different hazards although working on common activity to

excavate trench). Based on our caselaw and the specific task in this case, I believe we must




                                            D-1
carefully consider the evidence regarding general hazards as well as the risk of

electrocution.

       Six workers were engaged in the same project and common activity. Three Ulland

employees, including the decedent, were exposed to the risk of electrocution. It is

undisputed that two workers from different employers were not exposed to the risk of

electrocution while they remained in their cabs and performed their assigned tasks—the

crane operator (Kraemer) and the bulldozer operator (Ulland). While the crane spotter

(Kraemer) felt a jolt of electricity (sharing a “same or similar hazard” with the decedent),

this was because he volunteered to help guide the culvert.

       On this evidence, reasonable minds may disagree whether these workers were

exposed to the same or similar hazards. Because this is a close case giving rise to

conflicting inferences, the jury should determine whether the Kraemer employees were

subject to a hazard similar to the Ulland employees.




                                            D-2
