Full Case Name:  Garry M. Rehn, Appellant, vs. Barbara Fischley, defendant and third-party plaintiff, Respondent, vs. Greater Anoka County Animal Humane Society, third-party defendant, Respondent.

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Country of Origin:  United States Court Name:  Court of Appeals of Minnesota Primary Citation:  No. C0-95-813, 1995 Minn. App. LEXIS 1539 (Minn. Ct. App. 1995). Judge Name:  Randolph W. Peterson Jurisdiction Level:  Minnesota Judges:  and Schumacher Considered and decided by Peterson Judge. KALITOWSKI Kalitowski dissenting in part) Presiding Judge Judge Judge (concurring in part Attorneys:  William Starr & Charles A. Beckjord, for Appellant. Teresa M. Croke & Robert E. Kuderer, for defendant and third-party plaintiff. Kevin Keenan, Jeffer Ali, for third-party defendant. Docket Num:  C0-95-813

The doctor was a veterinarian and a member of the board of directors for the humane society. The director of the humane society asked her for advice on how to clean cat cages, and the doctor gave advice and donated a bottle of formalin, whereupon the employee who used the formalin suffered permanent lung damage. The employee commenced an action against the doctor and humane society for damages.  The court held that although the doctor would not have advised using formalin if she was not a member of the board, this fact did not establish that giving the advice was within the scope of her responsibilities as a board member.


On appeal from a directed verdict, appellant Garry Rehn challenges the trial court's conclusions that respondent Dr. Barbara Fischley (1) is immune from liability; (2) did not commit professional malpractice; and (3) had no legal duty to warn. We affirm in part, reverse in part, and remand for a new trial.


Respondent is a veterinarian and a member of the Greater Anoka County Humane Society (Humane Society) board of directors. The Executive Director of the Humane Society (Director) telephoned respondent in December 1992 for advice on how to disinfect cat cages for the feline distemper virus. Respondent, quoting from a book, told the Director, "The virus is resistant to tripsin and most disinfectants but can be inactivated by zero point five percent formal in or one to 32 dilution of commercial hypochloride solution." Neither respondent nor the Director knew what hypochloride solution was, but respondent had formalin at her clinic and agreed to donate some to the Humane Society.

Respondent informed the Director that some people experience headaches and nausea when using formalin, and advised that only one person use it at a time and that the person's skin and face be covered. The Director testified that respondent said a towel or bandanna would suffice for covering the face if no mask was available.

The Director relayed respondent's comments to Humane Society staff, including appellant. When appellant and another employee picked up the formalin from respondent's office, it was in a distilled water jug marked "ten percent formalin." The other employee wrote "Do not inhale, wear gloves, mask when using, careful, harmful" on the jug, and appellant crossed out the words "distilled water."

Without measuring the amount, appellant added formalin to water in a one-gallon pail and then applied the mixture to the cat cages. After finishing half a room, either he or the Director questioned whether the solution was strong enough. Upon calling respondent's office, appellant was told a dilution rate and to add more formalin. Appellant simply added more formalin to the water without calculating the amount necessary to achieve the dilution rate. After several more hours of cleaning, appellant's stomach began to ache. He was later diagnosed as having permanent lung damage.

Appellant brought suit against respondent claiming negligent failure to warn and malpractice. At the close of appellant's case, the trial court granted respondent's motion for a directed verdict based in part on the immunity provision of the Minnesota Nonprofit Corporation Act (MNCA), Minn. Stat. § 317A.257 (1994). Respondent did not plead immunity in her original answer. Appellant's motion for a new trial was denied and respondent's motion to amend her answer to include the immunity defense was granted.


On appeal from a directed verdict, the reviewing court makes an independent assessment of its appropriateness. A motion for a directed verdict presents a question of law for the trial court: whether the evidence is sufficient to present a fact question for the jury to decide. A directed verdict should be granted only where, in light of the evidence as a whole, it would be the duty of the trial court to set aside a contrary verdict as manifestly contrary to the evidence or to the law. Finally, in considering the motion, the trial court must accept as true the evidence favorable to the adverse party and all reasonable inferences which can be drawn from that evidence. This court must apply the same standard.

Claflin v. Commercial State Bank, 487 N.W.2d 242, 247 (Minn. App. 1992) (citations omitted), review denied (Minn. Aug. 4, 1992).


1. Appellant argues that respondent waived the immunity defense by not raising it before the close of her case. Most immunities are considered affirmative defenses. See Elwood v. Rice County, 423 N.W.2d 671, 674 (Minn. 1988) (qualified or good faith immunity is affirmative defense); Peterson v. Knutson, 305 Minn. 53, 60, 233 N.W.2d 716, 720 (1975) (judicial immunity referred to as affirmative defense); Stone v. Badgerow, 511 N.W.2d 747, 752 n.5 (Minn. App. 1994) (discretionary function and official immunities described as affirmative defenses), review denied, (Minn. Apr. 19, 1994). As a general rule, affirmative defenses must be set forth in the pleadings or they are waived. St. Cloud Aviation, Inc. v. Pulos, 375 N.W.2d 543, 545 (Minn. App. 1985). Pleadings may be amended, however, when issues are tried by express or implied consent of the parties. Minn. R. Civ. P. 15.02. This is true even when the issue is an affirmative defense. Nor-Son, Inc. v. Nordell, 369 N.W.2d 575, 578 (Minn. App. 1985), review denied (Minn. Sept. 13, 1985).

Appellant did not object to the timing of the defense when it was first raised; instead, he merely argued the substantive issue of whether the defense applied. It was not until after the jury was excused that appellant raised the timing issue with the trial court. By arguing the substance of the defense without objecting to the timing, appellant impliedly consented to trial of the issue.

2. The MNCA provides immunity from civil liability to unpaid directors of nonprofit organizations if the director (1) acts in good faith; (2) within the scope of her responsibilities as a director; and (3) does not commit reckless or willful misconduct. Minn. Stat. § 317A.257, subd. 1 (1994). An exception applies when a director personally and directly causes physical injury. Id., subd. 2 (1994).

The trial court determined that respondent was acting within the scope of her responsibilities as a board member because the only reason she was called and the only reason she advised using formalin was because she was a board member. While it may be true that respondent would not have advised using formalin if she had not been a member of the board, this fact does not establish that giving the advice was within the scope of her responsibilities as a board member. Respondent and the Director did not have authority to establish the scope of respondent's responsibilities as a board member. The record does not establish what respondent's duties were as a board member. Absent such evidence, a directed verdict on the immunity issue was improper. We, therefore, reverse the directed verdict and remand for a new trial.

The dissent's conclusion that respondent is entitled to immunity from civil liability because there is no evidence that she was acting outside the scope of her responsibilities as a director when she provided advice to the Humane Society improperly imposes the burden of proof on appellant.

In this state the burden of proof generally rests on the one who seeks to show he is entitled to the benefits of a statutory provision.

State v. City of White Bear Lake, 311 Minn. 146, 150, 247 N.W.2d 901, 904 (1976).

In asserting that Minn. Stat. § 317A.257 relieves her of civil liability for giving advice to the Humane Society respondent sought to show she is entitled to the benefits of a statutory provision. Respondent, therefore, bears the burden of proving that giving advice was within the scope of her responsibilities as a director; appellant does not bear the burden of proving that giving advice was not within the scope of respondent's responsibilities as a director.

The fact that an individual wanted respondent to serve as a director so that she could provide advice and the fact that respondent understood and expected the Director would call her for advice do not establish that giving advice was within the scope of respondent's responsibilities as a director. The responsibilities of a director are established by statute, articles of incorporation, and corporate bylaws. See Minn. Stat. § 317A.201 (1994) (business and affairs of corporation must be managed by or under direction of board of directors and all directors have equal rights except as modified by articles or bylaws).


Appellant argues that the trial court erred in dismissing his malpractice claim on the basis that there was no physician-patient relationship. As a general rule, "a physician is liable for malpractice only where there is a physician-patient relationship." Henkemeyer v. Boxall, 465 N.W.2d 437, 439 (Minn. App. 1991), review denied (Minn. Mar. 27, 1991).

A physician may be liable to a third party as well as the patient if there is a contractual or special relationship with the third party. See Lundgren v. Fultz, 354 N.W.2d 25, 27-28 (Minn. 1984) (duty to protect others if physician has ability to control patient and harm from patient is foreseeable); Skillings v. Allen, 143 Minn. 323, 326-28 173 N.W. 663, 664 (1919) (physician had duty to warn parents that patient's illness was contagious). In these cases, however, a physician-patient relationship existed. The physicians' duties to those patients were, in effect, extended to the third parties because the patients' dangerous characteristics were known to the physicians. Here, no physician-patient duty can be extended to appellant because there was never a patient involved. We see no reason to apply a different rule just because respondent is a veterinarian. The trial court did not err in dismissing appellant's malpractice claim.


1. Respondent moved to dismiss appellant's entire appeal because appellant failed to separately state and argue his failure to warn claim in his brief. See Minn. R. Civ. App. P. 128.02, subd. 1(d) (argument on each issue shall be separately presented). Appellant addressed the failure to warn claim, however, while discussing the immunity issue, and rule 128.02, subd. 1(d) provides that "needless repetition shall be avoided." We will, therefore, address the issue.

2. A duty to warn exists if a seller knows or should know that a product is dangerous for a particular use and knows or should know that the purchaser will not comprehend the danger. Frey v. Montgomery Ward & Co., 258 N.W.2d 782, 786 (Minn. 1977). Citing Ruth v. Hutchinson Gas Co., 209 Minn. 248, 296 N.W. 136 (1941), the trial court determined that this duty does not extend to gratuitous suppliers. In Ruth, however, the supreme court held that a gratuitous supplier owes a duty if the supplier actually knew of the danger. 209 Minn at 256, 296 N.W. at 140. Furthermore, in Mikel v. Aaker, it was made clear that actual knowledge is not required; a duty exists if the gratuitous supplier should have known that the product is dangerous. 256 Minn. 500, 504-05, 99 N.W.2d 76, 79 (1959) (quoting Restatement of Torts § 388 (1934)); see also Restatement (Second) of Torts §§ 388, 405 (1965) (donor of chattel who knows or should know that chattel is dangerous for intended use subject to same liability as supplier).

The fact that respondent donated the formalin, therefore, does not relieve her of liability. Whether she owed a duty to warn appellant depends on whether she knew or should have known of the dangers of formalin in light of its intended use and the person using it. Respondent's own testimony and the testimony of appellant's experts on that issue were sufficient to defeat a motion for directed verdict.

Affirmed in part, reversed in part, and remanded for a new trial.

Randolph W. Peterson

December 6, 1995

CONCURBY: Thomas J. Kalitowski (In Part)

DISSENTBY: Thomas J. Kalitowski (In Part)


KALITOWSKI, Judge (concurring in part, dissenting in part)

I respectfully dissent. I would affirm the district court's grant of a directed verdict in favor of respondent Barbara Fischley because she is immune from civil liability under Minn. Stat. § 317A.257 (1994).

There is no evidence that in providing advice to the Humane Society on how to disinfect cat cages for feline distemper, respondent was acting outside the scope of her responsibilities as an unpaid director of the Humane Society. To the contrary, the undisputed evidence shows: (1) respondent was asked to serve on the Humane Society board because she was a veterinarian and the Humane Society was experiencing a number of problems including poor infectious disease control; (2) respondent was asked to serve on the board to help solve the problems they were having, to prevent future problems, and "to be an advisor to the people at the society"; (3) respondent understood and expected the director of the Humane Society would call her with questions; and (4) the director of the Humane Society called respondent for advice on disinfecting the cat cages only because respondent was a veterinarian, volunteering as a board member at the time.

The evidence shows respondent was acting (1) voluntarily without compensation; (2) in good faith; and (3) within the scope of her responsibilities as a director. Therefore, because her acts or omissions were not willful or reckless misconduct, respondent is entitled to immunity. See Minn. Stat. § 317A.257, subd. 1.

Thomas J. Kalitowski.

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