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Stringer v. Minnesota Vikings Football Club11/17/2005
W.2d at 752 (discussing gross negligence in the context of the crime of vehicular homicide); State v. Chambers, 589 N.W.2d 466, 478 (Minn. 1999) (examining gross negligence in criminal vehicular homicide context); Bolsinger, 221 Minn. 154, 159, 21 N.W.2d 480, 485 (1946) (defining gross negligence in criminal context). What is unique about co-employee liability, as discussed above, is that we do not even reach the gross negligence question unless a personal duty has been established--some act of direct negligence toward the injured employee. When the personal-duty prong is coupled with the gross-negligence prong, the notion of scant care appears to have no place.
As applied to the claims before us, Stringer alleges 25 acts of commission and omission that amount to gross negligence and she supports those allegations with expert affidavits. The use of a scant-care standard would focus not on those acts where the care was negligently performed or was negligently not performed, but on what other care was given. The fact that a caregiver performed some acts that were not themselves negligent (i.e. bringing Korey Stringer to the air conditioned trailer for evaluation, offering water) should not be considered to excuse the negligent performance or failure to perform the other acts that are alleged to have been required by due care.
Accordingly, I would describe the gross negligence standard for co-employee liability in terms of what it is--negligence of a high degree, great negligence, more than ordinary negligence but less than wanton and willful conduct--and not in terms of what it is not--the provision of scant care. And under that standard, Stringer has presented sufficient evidence to create genuine issues of material fact that the conduct of Osterman and Zamberletti was grossly negligent. Accordingly, summary judgment should be reversed and the matter remanded for trial.
MEYER, Justice (dissenting).
I join in the dissent of Justice Hanson.
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