Rehn v. Fischley
| Decision Date | 02 January 1997 |
| Docket Number | No. C0-95-813,C0-95-813 |
| Citation | 557 N.W.2d 328 |
| Parties | Garry M. REHN, Respondent, v. Barbara FISCHLEY, Defendant and Third-Party Plaintiff, Petitioner, Appellant, v. GREATER ANOKA COUNTY ANIMAL HUMANE SOCIETY, Third-Party Defendant, Petitioner, Appellant. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
1. Minnesota Statutes section 317A.257 grants a statutory immunity. The party relying upon this statute must prove that his or her actions fit within each element of the statute. Such a determination is a question of law best resolved at summary judgment.
2. Minnesota Statutes section 317A.257 affords uncompensated persons of nonprofit corporations broad protection from liability. Its protection for uncompensated members of a nonprofit corporation's board of directors is not limited to those activities enumerated by statute, the corporation's charter or its bylaws.
Robert E. Kuderer, Teresa M. Croke, Johnson & Condon, P.A., Kevin P. Keenan, Charles E. Lundberg, Bassford, Lockhart, Truesdell & Briggs, P.A., Minneapolis, for appellant.
William Starr, Starr & Fleagle, P.L.C., Charles A. Beckjord, Charles A. Beckjord, Attorneys at Law, Minneapolis, for respondent.
Jeffrey D. Hedlund, Faegre & Benson, L.L.P., Minneapolis, amicus curiae.
Heard, considered and decided by the court en banc.
Appellants, Dr. Barbara Fischley and the Greater Anoka County Animal Humane Society ("Humane Society"), seek review of the court of appeals' reversal of the trial court's directed verdict in favor of Dr. Fischley. Respondent Garry M. Rehn claimed he was injured after using formalin to disinfect cat cages at the Humane Society in January 1993. Rehn alleged that Dr. Fischley was negligent in: 1) recommending the use of formalin to the executive director of the Humane Society; 2) providing the formalin to the executive director of the Humane Society; and 3) in failing to provide adequate warnings and directions regarding the dangers and safe use of formalin. 1 Fischley filed a third-party complaint against the Humane Society for contribution or indemnity alleging that if Rehn was injured by the formalin, his injuries were caused in whole or in part by the negligence of the Humane Society. The trial court granted appellants' motion for directed verdict on the grounds that Dr. Fischley's actions were within her official duties as an unpaid member of a nonprofit corporation's board of directors and therefore were protected by Minnesota Statutes section 317A.257. 2 A divided panel of the court of appeals reversed and remanded the case for a new trial on the grounds that Dr. Fischley had not met her burden of proving that her actions were within the scope of her official duties as an unpaid member of the Humane Society's board of directors. We reverse and reinstate the directed verdict of the trial court.
The facts are undisputed. Dr. Fischley became a member of the Humane Society's board of directors in November 1992. A licensed veterinarian, she joined the board after the head of the Minnesota State Board of Veterinary Examiners asked her to serve on the board as an advisor, largely because the Humane Society was experiencing problems, including poor infectious disease control.
In December 1992, Greater Anoka County Humane Society executive director Jana Webster-Vaughn 3 learned that two kittens from her facility had tested positive for panleukopenia, a virus commonly known as feline distemper. 4 Webster-Vaughn then called Dr. Fischley to find out how to disinfect the cages at the Anoka County facility. Webster-Vaughn testified that she placed the call only because of Dr. Fischley's status as a board member. Dr. Fischley then read verbatim to Webster-Vaughn the following passage from a veterinarian textbook: 5
The virus is resistant to trypsin and most disinfectants but can be inactivated by 0.5% formalin or 1-to-32 dilution of commercial hypochlorite solution.
Neither Webster-Vaughn nor Dr. Fischley knew that hypochlorite solution consisted of hypochlorous acid, a solution used as a bleaching and oxidizing agent. 6 Dr. Fischley later admitted she did not know that formalin was unsafe as a surface disinfectant. Thus, Webster-Vaughn testified that Dr. Fischley left her with the impression that the only available option for disinfecting the cat cages was the surface application of formalin, which is a buffered 10 percent solution of formaldehyde. 7 Webster-Vaughn then asked Dr. Fischley where she could acquire some formalin and Dr. Fischley offered to provide some to the Humane Society. Dr. Fischley warned that she had observed people experiencing headaches and nausea while using formalin and recommended that only one person use the formalin at a time, and that the person's skin and face be covered during use.
At this time, respondent Garry Rehn was working at the Humane Society as a veterinarian technician assistant. At the direction of Webster-Vaughn, Rehn and veterinarian technician Elizabeth Hult went to Dr. Fischley's office to pick up the formalin. Dr. Fischley was not there, but her assistant, who also is a veterinarian, provided the formalin in a distilled water jug with the words "10% formalin" written on the side. Hult subsequently wrote the words "Do not inhale, wear gloves, mask when using, careful, harmful" on the side of the jug. Rehn subsequently scribbled out the words "distilled water" from the side of the jug. At no time did either Dr. Fischley or the Humane Society distribute directions for the use of formalin, as required by OSHA regulations.
A few days later, Rehn volunteered to clean the cages using the formalin. He wore yellow Platex-like gloves and asked Webster-Vaughn for a mask but was told to wear a towel over his face, which he did. Rehn prepared the disinfectant by adding two or three squirts of formalin from a syringe into a gallon-sized pail filled with water. He then began cleaning one of the rooms by applying the formalin solution directly to the surface of the walls and floor with towels. About two or three hours later, Rehn expressed concern to Webster-Vaughn that the dilution rate was not strong enough. Upon her suggestion, Rehn then phoned Dr. Fischley at her office. Fischley testified that she read him the same instructions she had read Webster-Vaughn. Dr. Fischley said she then refused to give any further advice and told Rehn to speak with his supervisor regarding the appropriate dilution rate. Without any more consultation with either Dr. Fischley or Webster-Vaughn, Rehn added three more squirts of formalin from a little syringe and one more squirt of formalin from a bigger syringe into the pail and cleaned the room again. He repeated this process more than once during the day. He then worked on another room for approximately four or five hours.
At the close of plaintiff's case in chief, Dr. Fischley moved for a directed verdict on the basis of Minnesota Statutes section 317A.257, which reads in part:
Except as provided in subdivision 2, a person who serves without compensation as a director, officer, trustee, member, or agent of an organization exempt from state income taxation under section 290.05, subdivision 2 * * * is not civilly liable for an act or omission by that person if the act or omission was in good faith, was within the scope of the person's responsibilities as a director, officer, trustee, member, [or] agent, * * * and did not constitute willful or reckless misconduct.
Minn.Stat. § 317A.257, subd. 1 (1996). Subdivision 2 includes two parts. Subdivision 2(a) enumerates four specific exceptions, none of which are applicable here. But subdivision 2(b) describes a limitation upon the statute's protection for physical injury: 8
Subdivision 1 does not limit an individual's liability for physical injury to the person of another or for wrongful death that is personally and directly caused by the individual * * *.
Minn.Stat. § 317A.257, subd. 2(b) (1996). In his motion for a new trial, Rehn argued that section 317A.257 is an affirmative defense and that Dr. Fischley waived her rights under the statute by failing to plead the defense in her answer. Dr. Fischley argued that the defense was a statutory immunity and, therefore, could not be waived. Both the trial court and court of appeals agreed that section 317A.257 is an affirmative defense, but the trial court allowed Dr. Fischley to amend her answer to include the defense because Rehn waived his objection by arguing the merits of the defense statute at trial. The trial court then granted the directed verdict, holding that Dr. Fischley had proven that her acts of recommending and providing the formalin: 1) were done in good faith, 2) were within the scope of her responsibilities as an uncompensated member of the board of directors, 3) were not willful or reckless misconduct, and 4) did not personally and directly cause physical injury to Rehn. The court of appeals reversed, holding that section 317A.257 did not apply because Dr. Fischley did not prove that her acts of recommending and providing formalin were within her specific responsibilities as authorized by statute or by the corporate charter or bylaws.
Before we consider the applicability of section 317A.257 to the case at bar, it is important that we classify the protection as either an affirmative defense or an immunity. Although it is not dispositive in this case, the differences between affirmative defenses and immunities are significant for at least two reasons. First, a party waives an affirmative defense if it is not included in a responsive pleading. Minn. R. Civ. P. 12.02 (1994). An immunity, although best included within an answer, is not waived if it is not included in the answer. See Snyder v. City of Minneapolis, 441 N.W.2d 781, 788 (Minn.1989) (); but see Elwood v. County...
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