Eskew v. Luhmann: Cow injury case affirmed

This opinion is nonpre cedential except as pro vided by Minn. R. Civ. App. P. 1 36.01, subd. 1(c). STATE OF MINNES OTA IN COURT OF APP EALS A25-0813 Jewel Eskew, et al., Appellants, vs. Darrell Luhmann, Respondent. Filed March 2, 2026 Affirmed Bentley, Judge Olmsted County Distri ct Court File No. 55 -CV- 24 -196 William L. French, Fre nch Law Office, Roche ster, Minnesota (for appellants) Steven E. Tomsche, Samantha P. Flipp, Tomsche, So nnesyn & Tomsche, P.A., Minneapolis, Minnesot a (for respondent) Considered and decid ed by Bentley, Presidi ng Judge; Frisch, Chi ef Judge; and Worke, Judge. NONPRECEDENTI AL OPINION BENTLEY, Judge Appellant Jewel Eskew was b utted, pinned, an d injured by a co w while working at respondent Darrell Luh mann’s farm. This case comes before u s on appeal from summary judgment for Luhmann on Eskew and his wife’s re sulting negligence and loss - of- consortium claims. Because we agree w ith the district court that no genuine issue s of

2 material fact exist, the grant of summary jud gment in Luhma nn’s favor wa s proper. We therefore affirm. FACTS The following facts, tak en from the summary - judgment record and st ated in the light most favorable to appellants, frame our con sideration of the issue s raised on appeal. Luhmann owns and operates a third - g eneration dairy farm. Eskew worked for Luhmann as a farmhand from Jul y 2021 until Mar ch 2022. 1 Eskew’s primary duty in that position was to help milk the cows, t hough he completed ad ditional tasks for Luhm ann when needed. Eskew had work ed as a farmhand previou sly, including for sever al y ears on a beef cattle farm. Based on t hat experience, Eskew was aware of possible risks working with cows and that it was ne cessary to take care w hile performing that wor k. One day, when Eskew was working on Luh mann’s farm, Lu hmann asked him to feed the cows because the farmhand who nor mally did so was absent. When Eske w went to the pen to feed the cows, he notice d a newly born calf. The cal f and one cow were standing apart from the other cows in the pen. Eskew then crawled int o the pen and walked around the cow. Beca use we view the r ecord in the lig ht most favorable t o Eskew on review, we accept his testimony that he crawl ed into the pen because one of his job duties 1 On appeal, Eskew argues that he was an employee of t he farm, and not an in dependent contractor. His com plaint alleges t he contrary — that he was an ind ependent contractor — and he has not identified any material in the summary - judgment r ecord to support his contention that he was an employee. Regard less, for purposes of our analysis we assume without deciding that h e was an employee.

3 was to determine whic h cow had calve d. He determined that the co w he walked aro und had not given birth to t he new calf. When Eskew walked past the cow, it rammed into hi m multiple times, slamm ing him into the wa ll of the surrounding structure and knocking him to the groun d. The attack lasted approximately fi ve minutes with Es kew unable to get away until a farm dog ran over and distracted the cow. During the attack, Es kew used his cel l phone and headse t to try to call Luhmann for hel p multiple times, incl uding leaving a voice mail, and yelled for someone around to hel p. After the incident, Luhmann came acr oss Eskew sitting near the pen. Luhman n asked what happened a nd Eskew responde d that a cow knocked him down and indicated which one had done it. Eskew went t o the hospital and was treated fo r his injuries. He had broken all but one of his ribs, suffered a collapsed lung, and has experienced lingering pain and mobility problem s with his shou lder. Eskew require d extensive su rgery on his ribs a nd the collapsed lung and suffered signi ficant complications, includi ng chronic lymphedema. Because of his injuries, Eskew was off work from March 2022 through early September 2022. Eskew and his wife, appellant Stephanie Eskew, filed this lawsuit in December 2022, claiming negligence and loss of c onsortium as a result of t he negligence. Both Luhmann and Eskew testified durin g their respective depositions tha t they were unaware of any instances of a cow on Luhmann’s fa rm causing trouble or a cting violently. After discovery, Luhmann move d for summary judgment. In an order and accompanying memora ndum gran ting the motion, the di strict court concluded t here were

4 “no genuine issues of m aterial fact as to any of the bases for ne gligence. ” More specifically, the district court determined that, for a “scienter action” for domes ticated animals, Eskew was required to prove t he cow had a vicious pr opensit y known to Luhmann but that “th ere are no genuine iss ues of material fact regarding either the vicious p ropensity of the c ow involved in this inciden t or [Luhmann ’s ] know ledge of the cow’s dangerous prope nsities.” The district court further determined that Eskew cannot establish a common -law negligence claim because Eskew’s inj uries were not reasonably fore seeable. The district court similarly granted summary judgment to Luhmann on the loss- of -consortiu m claim. Eskew and his wife ap peal. 2 DECISION This is an appeal from a summary judgment. Summary j udgment is proper if the moving party shows, b y citing to specific part s of the record, that “there is no genu ine issue as to any material fact and the mova nt is entitled to judgme nt as a matter of law.” Minn. R. Civ. P. 56.01, .03(a). A genuine is sue of material fact exists “whe n reasonable persons might draw different conclusions fro m the evidence pre sented.” Ha nson v. Dep ’ t of Nat. Res., 972 N.W.2d 362, 372 (Minn. 2022) (quot ation omitted). Appellate courts review a grant of summary judgment de nov o. Bell v. St. Joseph Mut. Ins. Co., 990 N.W.2d 504, 507 (Minn. App. 2023), rev. denied (Minn. Aug. 8, 2023). That means we co nsider “whether ther e are an y genuine issues of m aterial fact and whether the court erred in its application of the law.” L ouis v. Louis, 636 N.W.2d 314, 318 (M inn. 2 Because the loss -of-consortium claim is derivative of the negligence claim, we focus our analysis on the neglige nce claim.

5 2001). In doing so, we “view the evidence in the light most favorable to the n onmoving party.” Schroeder v. Si mon, 985 N.W.2d 529, 535 -36 (Minn. 2023) (quotation omitted). A n individual bringing a negligence action m ay recover for injuries caused by a domesticated animal on either of two bases. 3 See Ryman v. Alt, 266 N.W.2d 504, 507 - 08 (Minn. 1978). The first basis is known as a “s cienter action” and the second is a claim of common-law negligenc e. Id. at 506, 508. We address each basis for relief in turn. 4 I We begin by analyzin g Eskew’s negligence claim under the scie nter theory of liability. A “scienter a ction” permits an indiv idual to recover from a n animal’s keeper if they are “injure d by a domestic a nimal,” and t hey prove that “(1) th e animal had a vicious propensity, and (2) the animal ’ s keeper had notice of the v icious propensity. ” Ryman, 266 N.W.2d at 506. Applying that stan dard, the district court conclud ed that there were no genuine issues of mate rial fact remaining that would allow a jury to find that Lu hmann knew of the cow’s vicious propensity. We agree with the district c ourt. 3 C ows and cattle a re domestic animals for these purposes. See generally Anderson v. Anderson, 107 N.W.2d 647 (Minn. 1961) (treating a bull as a domestic animal and applyin g the scienter standard fo r liability). 4 Luhmann argues that “negligent training” is not a recognized ca use of action in Minne sota and that Eskew assumed the risk of injury. W e decline to reach those arguments because Eskew did not a rgue a claim of negligent trai ning on appeal a nd the case can be resolv ed without deciding whether Eskew assum ed the risk of his injuries. See Minn. Baptist Convention v. Pillsbury Acad., 74 N.W.2d 2 86, 296 (Minn. 1955) (“Under well -s ettled rules the court refrains from decidin g, where it is unnecessary to do s o, constitutional and other legal questions.”).

6 Knowledge of an animal’s vicious prope nsit y is “usually found to have been gleaned from specific ac ts of the animal prior to the in jury sued upon,” b ut may also attach if th e owner has some other good reason to appreh end the vicious propen sity. Clark v. Brings, 169 N.W.2d 407, 409 (Minn. 1969). A plaintiff must also show that the vicious propens ity is specific to the individual animal becau se “[g]enerally the owner of a domestic animal is under no obligation to guard ag ainst injuries which he ha s no reason to e xpect on account of some disposition of the individua l animal different from the specie s generally if he has no notice of such disposition.” Matson v. Kivimaki, 200 N.W.2d 164, 169 (Minn. 1972) (quotation omitted). The summary - judgmen t record is devoi d of e vidence that Luhmann was aware of any vicious propens it y of the co w that attack ed Eskew. To the contrary, Luhmann stated in his deposition testimony that he had ne ver experienced any similar instances of aggression or violence by any of his cows in his many decades farming and t hat he had never had any trouble with the specific cow in this c ase. Eskew did not identify any evidence that would create a genuine i ssue of material fact o n that point, even acknowledging i n his d eposition that he was unaware o f any such in cidents with a ny of the cows on Luhmann’s fa rm. Rather than focus on whether Luhmann kne w about the vicious propensity of the cow involved in the attack, Eskew states more generally that “[w]orking with cattle can be very dangerous.” To demonstrate th is dangerousness, he cites a book about livestock productio n, references Luhmann’s depositio n admission that “a f arm can be a very dangerous place,” and points to evide nce that Luhmann usually uses multiple people and a

7 Bobcat to move a new calf. Such generalit ies about the dangerousness of far m work, however, are insufficie nt to establish a genuin e issue of material fact because they do no t demonstrate that Luh mann knew that the c ow involved in the att ack had a disposition “different from the spe cies generally.” Id. Because the record contains no evi dence that t he cow involved in the attack had a vicious propensit y or that Luhmann k new or had reaso n to know of such propensit y, the district court did not err in granting s ummary judgment for Luhmann on a scienter theory of negligence. Ryman, 266 N.W.2d at 506. II Next, we assess whet her Eskew’s claim s survive sum mary-judgment review under a theory of common - l aw negligence. See id. at 508 (recognizing “ a cause of action for injuries inflicted by a domestic animal b ased entirely upon the negligence of the anim al’s owner or keeper”). To prove a com mon - law negligence clai m against the keeper of a domestic animal, a plaintiff must show that (1) the defendant ha d a duty; (2) the defendant breached that duty; (3) the breach was the proximate cause of the plaintiff’s injury; and (4) the plaintiff was in fact injured. Boitz v. Preb lich, 405 N.W.2d 907, 911 -12 (Minn. App. 1987). Negligence is ty pically determined by a jury or fact-finder, except in those cases where it clearly app ears to the trial court, after accepting the view of the evide nce most favorable to the adverse party including all reasonabl e inferences to be drawn therefrom, that it would be its duty to set asi de a contrary res ult as not justified by the evidence or as contrary to the law applicable to the case. Peterson v. Pawelk, 26 3 N.W.2d 634, 636 (Mi nn. 1978) (quotati on omitted).

8 Eskew posit s that Luh mann was negli gent in two respects. First, he argues that Luhmann had a duty to warn Eskew ab out the danger s of going into a cow pen when other people are not present. Second, Eskew argues t hat Luhmann had a duty to answer his phone when Eskew called f or help. We begin with Eskew’s du ty-to- warn the ory and then address Eskew’s duty-to-answe r theory. A T o establish the e mployer’s duty -to- war n for purposes of a common - law negligence action, “ [a] n employee injured by hi s employer ’ s animal usually mu st prove, much as in the scienter action, t hat the employer had prior notice of the beast ’ s vicious propensity. ” Clark, 169 N.W.2d at 414. Without prior kn owledge, a plaintiff must allege and prove “ some special circums tances which would in its stead hav e put a prudent e mployer on guard for his employee ’s safety.” Id. 5 For reasons already articulated, we concl ude that Eskew failed to prove Luhmann had notice of any “vicious propensity” of the cow at issue. Id. Eskew also has not established the presenc e of any “special circu mstances” that would have put Luhmann “on 5 Eskew advocates th at we should decline to follow Clark and instead shoul d consider whether Luhmann, “as a possessor of land,” had a duty to warn Eskew “of da ngers and to instruct him on safe ty,” irrespective of the cow’s vici ous propensity. For that premise, he relies on Berg v. Johnson, 90 N.W.2d 918, 921 (Minn. 1958), which held tha t “[t]he duty of a master to warn and instruct his e mployees of the danger s and risks involved in his employment is absolute and nondelega ble.” Berg does not alter our analysis. In order to warn an employee of d angers involved in the work, the employer mu st have had reason to know that the danger e xisted. Clark is c ontrolling because it in structs how courts sho uld determine whether an employer had notice of a potential danger presented by a domestic animal. See Clark, 169 N.W.2d at 414 (notin g that the duty attaches when the employer had prior knowledge of the animal’s vicious propensity or when special circumstance s are present that placed the owner on notice of the potential for dangerous behavior).

9 guard for [Eskew’s] sa fety.” Id. Eskew argues that the particularl y dangerous nature of farm work is a “specia l circumstance,” and that Luhmann ’s failure to answer his phone while Eskew was bei ng attacked was a “special circumstance.” Neither is the kind of circumstance contempl ated by Clark. Clark refer ences cases from other jurisdictions to offer some guidan ce as to what constitutes a “special circumstance” in this context. See id. (c iting Finley v. Conla n, 136 N.Y.S. 565, 566 (N.Y. App. Div. 1912), and Flynn v. Lindenfield, 433 P.2d 639, 641 -42 (Ariz. Ct. App. 1967)). In Finley, the relevant special circumstance w as that the defendant knew his horse had a sore that might cause it to kick if press ed by the horse’s harness. 136 N.Y.S. at 566. So, even if the horse did not have a vicious pro pensity, the owner’s awareness of the sore p ut him on notice that th e horse might react if t he sore w as irritated. Id. In Flynn, the special circumstance was that the defendants lef t their property, which included a horse corra l, in the care of a young babysitter who was inexperienced with horses. 433 P.2d at 64 1-42. The court left it for a jury to decide whether the defendants had a duty to warn the babysitter that their mare may protect her colt. I d. at 642. No similar facts exist here that demonstrate any speci al circumstances whic h may have alerted Luhmann that the cow would a ct dangerously or that Eske w was parti cularly vulnerable to attack. To the contr ary, dealing with cows an d calves is a routine part of operations on Luhmann’s farm and Eskew provi ded no evidence that Lu hmann’s cows had a history of acting aggressively t o protect calves or otherwise. T he rec ord shows that Eskew was an experienced farmhand who had worked wit h cows and cattle before and who knew that it was necessary to be careful around t hem. And there is no dis pute that t he cow that attacked

10 Eskew had not given bi rth to the nearby calf a nd so, even if we were to assume that a c ow protecting it s calf is a special circumstance contemplate d by Clark, that was not t he circumstance here. In sum, the gener al dangerousness of cattle and the failure to answer a phone during the incid ent at issue are not spe cial circumstances that establish Luhma nn had a duty to warn Esk ew of the danger in ent ering the pen. Because Eskew did not establish that there is a genuine issue of material fact as to whether Luhman n had notice of th e “vicious propens it y ” of the co w or as to whethe r a “special circumstance” existed u nder Clark, th e district court’s grant of summary judg ment on his duty-to-warn the ory was proper. 169 N. W.2d at 413-14. B We now turn to Eskew’s argume nt that Luhma nn was negligent f or failing to answe r his phone as Es kew was callin g for help. He re, Eskew had to establish that Luhmann owed Eskew a duty to answer the phone. See Boitz, 405 N.W.2d at 912. W hether someone owes a duty in any given circumstance de pends on whether inju ry to the plaintiff is foreseeable. Austin v. Metro. Life In s. Co., 152 N.W.2d 136, 138 (Minn. 1967) (“The common - law test of duty is the probabilit y or foreseeability of in jury to plaintiff.”). “For eseeability of injury is a threshold issue rela ted to duty that is ordin arily properly decided by the court prior to submitting the case to the jury.” Domagala v. Rolland, 805 N.W.2d 14, 27 (Minn. 2011) (quotation omitted). Eskew argues that, because far ms are dange rous places, Luhmann should have known he needed t o answer his ph one when Eskew called mult iple times withi n five minutes. Whe ther a plaintiff’s injury is fores eeable, h owever, depends on “whether t he

11 specific danger wa s objectively reasonable to expect, not simpl y whether it was withi n the realm of any conceivable possibil ity.” Foss v. Kincade, 7 66 N.W.2d 317, 322 (Minn. 2009). That is, we must assess whether the specific danger s here— the cow attack an d resulting injuries —w er e objectiv ely reasonable to ex pect, not whethe r such an attack wa s within the realm of p ossibility. See i d. Und er the circumstances here, Eskew has not established that it woul d be objectively reasonable for Luhmann to e xpect the cow attack would occur or that his failure to answer his phone du ring the five - minute attack would have contributed to Eskew’s injuries. We therefore conclude that Eske w has not established that Luhmann owed a duty to Eskew to answer his phone. Aga in, for that reason, the grant of summary judgment was proper. Affirmed.