Morton v. Park Christian Sch.

• Decision Date: 03 October 2022
• Docket Number: File 19-cv-03134 (ECT/LIB)
• Parties: Jimmy Morton, Plaintiff, v. Park Christian School, Inc., Christopher Nellermoe, Joshua Lee, and Timothy Kerr, Defendants.[1]
• Court: U.S. District Court — District of Minnesota

Jimmy Morton, Plaintiff, v. Park Christian School, Inc., Christopher Nellermoe, Joshua Lee, and Timothy Kerr, Defendants.^[1]

File No. 19-cv-03134 (ECT/LIB)

United States District Court, D. Minnesota

October 3, 2022

Lori A. Johnson, Andrew D. Parker, and Jordon Greenlee, Parker Daniels Kibort LLC, Minneapolis, MN, attorneys for Plaintiff Jimmy Morton.

Amanda M. Cialkowski, Brian N. Johnson, Kelly P. Magnus, Leah N Kippola-Friske, and Matthew C. Murphy, Nilan Johnson Lewis PA, Minneapolis, MN; and Tammy M. Reno, Arthur, Chapman Kettering, Smetak & Pikala, PA, Minneapolis MN, attorneys for Defendants Park Christian School and Christopher Nellermoe.

Richard C. Scattergood, Tomsche, Sonnesyn & Tomsche P.A., Minneapolis, MN, attorney for Defendant Christopher Nellermoe.

Briana Gornick and William L. Moran, HAWS-KM, P.A., St. Paul, MN, attorneys for Defendant Joshua Lee.

Brian Michael Hansen, St. Paul, MN; Paul S. Hopewell, Lilleberg & Hopewell, Edina, MN; and Tammy M. Reno, Chapman, Kettering, Smetak & Pikala, PA, Minneapolis, MN, attorneys for Defendant Timothy Kerr.

OPINION AND ORDER

Eric C. Tostrud United States District Court This diversity case arises out of a June 2015 motor-vehicle accident. Plaintiff Jimmy Morton was a passenger in a pickup truck driven by Zachary Kvalvog. Morton, Zachary, and two other passengers in the truck-Zachary's brother, Connor, and Mark Schwandt-were members of a basketball team representing Defendant Park Christian School in Moorhead, Minnesota. Zachary was driving the third vehicle in a three-car caravan to a basketball tournament in Wisconsin Dells. Defendants Joshua Lee, Park Christian's head basketball coach, and Timothy Kerr, its head football coach, drove the other two vehicles. Roughly 45 minutes into the trip, a semi-trailer truck encroached on the left lane where Zachary was driving. In his efforts to avoid the encroaching semi, Zachary lost control of the pickup, and it crashed. Zachary and Connor Kvalvog were killed in the crash, and Morton and Schwandt suffered injuries. In this case, Morton asserts negligence claims against all Defendants and a claim for breach of fiduciary duty against the school.^[2]

Seven motions require a decision. Defendants have filed six of these, including two motions to exclude the testimony of Morton's proffered liability experts, one motion to exclude a damages-related expert, and three summary-judgment motions, one filed each by Park Christian, Lee, and Kerr. Morton has filed a motion for partial summary judgment on two issues. The upshot is this:

• Defendants' two motions to exclude Morton's liability experts will be granted in part and denied in part. The partial denial of these motions means that portions of the two challenged experts' opinions remain part of the summary-judgment record and, as it turns out, relevant to disposition of the summary-judgment motions.

• The summary-judgment motions filed by Park Christian School and Coach Lee will be denied with respect to Morton's negligence claims. I conclude this result follows necessarily from the Minnesota Supreme Court's decision in Fenrich v. The Blake School, 920 N.W.2d 195 (Minn. 2018).

• Kerr's summary-judgment motion will be granted with respect to Morton's negligence claims. No reasonable juror could find that Kerr assumed supervision and control over the Wisconsin Dells trip, a necessary predicate to his liability under Fenrich.

• Lee and Kerr's summary-judgment motions will be granted with respect to Plaintiffs' negligence per se claims. The basis for these claims are traffic violations, something Minnesota law says cannot be predicates for a negligence per se theory.

• Park Christian's summary-judgment motion will be granted with respect to Morton's breach-of-fiduciary-duty claim. No reasonable juror could find that Park Christian owed Morton a fiduciary duty.

• Lee's summary-judgment motion based on Minnesota's nonprofit-service immunity statute, Minn. Stat. § 317A.257, will be denied because legal and factual questions remain regarding whether Lee “personally and directly” caused Morton's injuries.

• Morton's motion for partial summary judgment as to the “school-activity” and duty issues will be denied. Issue-preclusion principles do not justify adopting the state district court jury's school-activity finding here, and many fact issues preclude summary judgment on the duty issue.

I

The Defendants. Park Christian is a private K-12 school in Moorhead, Minnesota. ECF No. 160-1 Ex. A at 279-80. Christopher Nellermoe was Park Christian's principal when the accident occurred; he now serves as Park Christian's president. Id. Ex. B at 1516.^[3] Lee served as Park Christian's head basketball coach for the 2014-15 and 2015-16 seasons. Id. Ex. C at 29-30, Ex. D, Ex. F. Kerr was Park Christian's head football coach for the 2014 and 2015 seasons. Id. Ex. G at 14-16, Ex. H, Ex. I; ECF No. 155-1 Exs. 8, 9.

The Plaintiff. In April 2015, Morton was 18 years old and living in Jackson, Mississippi, where he was a high school junior. ECF No. 162 Ex. DD at 7, 10-11, Ex. EE at 39-40; see also ECF No. 53 and ECF No. 55. Morton was a talented basketball player and had drawn attention for his high-jumping skills in track and field. See ECF No. 55 ¶¶ 4, 6. He had “received lots of letters from colleges” recruiting him for basketball and track and field. ECF No. 53 ¶ 4.

Morton travels to Fargo to explore attending and playing basketball at Park Christian. Morton's cousin, Alonzo, lived in Fargo, North Dakota. Alonzo persuaded Morton to travel to Fargo, where he might obtain greater exposure as a high school basketball prospect. ECF No. 162 Ex. DD at 21, Ex. EE at 23-26. Alonzo's son had played basketball with Park Christian team members Zachary and Connor Kvalvog, and Alonzo wanted Morton to play basketball at Park Christian. Id. Ex. FF at 32-36, 58, 80, 208-10, Ex. EE at 23-26; ECF No. 53 ¶ 5. Alonzo spoke to Coach Lee, Kerr, and Raymond Kvalvog, Zachary and Connor's father, about Morton before he arrived. ECF No. 176-4 Ex. 18 at 56; see also ECF No. 162 Ex. FF at 66-69, 72; ECF No. 160-1 Ex. C at 62-64, Ex. G at 63, Ex. M at 105. A number of people called Morton's mother, Sondra Turner, about Morton attending Park Christian, including Raymond Kvalvog, a different person who identified himself as a Park Christian coach (though Turner does not remember this person's name), and another person who called to arrange a tour of the school. ECF No. 55 ¶¶ 8-9; ECF No. 176-5 Ex. 21 at 218-21. Morton flew to Fargo alone on June 5, 2015. ECF No. 162 Ex. EE at 85-87, Ex. GG, Ex. FF at 78. Raymond Kvalvog met Morton at the airport and brought him to meet and play basketball with Zachary. Id. Ex. EE at 2728. Morton met Head Coach Lee on his first day practicing with members of the Park Christian team. Id. Ex. DD at 19-20. After spending the next three weeks with the team, Morton had decided to attend and play basketball at Park Christian and was working to persuade his mother to move with him to Fargo. Id. at 20.

The Park Christian summer basketball program. Coach Lee organized a summer program for members of the Park Christian basketball team. In 2015, this program involved morning practices, games in a local summer league, and several tournaments, including a tournament in the Wisconsin Dells on June 25 and 26. ECF No. 160-1 Ex. C at 37-38, 56-62, Ex. E at 75, Ex. J, Ex. K at 11-12. The summer program was voluntary, but Coach Lee encouraged players to participate, and more experienced players were invited to tournaments. ECF No. 160-1 Ex. C at 60-62, 139-40, 160-62, Ex. G at 160, Ex. L, Ex. K at 12-13. Morton participated in the summer basketball program after he arrived on June 5, regularly practicing with Park Christian players, lifting weights, participating in scrimmages against other high-school teams, and playing in a Tuesday-night league where Lee coached. ECF No. 53 ¶¶ 7-8. Though Morton participated in the 2015 summer program, it is undisputed that he was not then enrolled (and would not enroll) at Park Christian. Id.

The Park Christian transportation policy. Park Christian had a transportation policy that appeared in its Athletic Handbook. ECF No. 176-7 Ex. 27 at 12. Among other things, the policy provided that “[h]igh school students and coaches will travel to and from the game by school transportation as provided,” and that “[a]ll high school athletes must . . . take the team-arranged transportation to all out-of-town games.” Id. The Handbook further stated that “[p]layers who travel to out-of-town games using non-school arranged transportation must get written permission from their parent/guardian, coach, Activities Director and Principal in advance.” Id. In addition, the Handbook stated that “[n]o students will drive their own cars from school to an out of town meet or event.” Id.

The Wisconsin Dells tournament. Coach Lee learned of the Wisconsin Dells tournament in March or April 2015. ECF No 161 Ex. N at 38-39. He initially requested school transportation or vans for the tournament, but Nellermoe refused. ECF No. 176-8 Ex. 29 at 47-48, 148-49; ECF No. 160-1 Ex. C at 112-15, 137-38, 148-49. Coach Lee met with players in April or May 2015 to gauge interest in participating in the Wisconsin Dells tournament. At that time, Lee proposed an itinerary, explained that the players would be responsible for room and meal expenses, and told the players that if they rode with someone, they should offer to help with gas. ECF No. 160-1 Ex. C at 96-97; ECF No. 161 Ex. U. Coach Lee registered for the tournament as the “Park Christian School” team, with a check processed by the Park Christian business office and funded from the Park Christian boys' basketball account. ECF No. 160-1 Ex. C at...