Heather Jones, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0983

Heather Jones,
Appellant,

vs.

Hennepin County,
Respondent.

Filed April 23, 2018
Affirmed
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-CV-15-19716

Tammy P. Friederichs, Stephen M. Th ompson, Friederichs & Thompson, P.A.,
Bloomington, Minnesota (for appellant)

Michael O. Freeman, Hennepin County Attorney, Rebecca L.S. Holschuh, James W.
Keeler, Assistant County Attorneys, Minneapolis, Minnesota (for appellant)

Considered and decided by Rodenberg, Presiding Judge; Bjorkman, Judge; and
Smith, Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Heather Jones sued respondent Hennepin County (the county) for assault,
battery, sexual harassment in a place of pub lic accommodation, and reprisal, based on
alleged conduct by a county security guard at an office building. Following a trial, the jury

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found in favor of the county. Jones challenges the district court’s denial of her motion for
a new trial, arguing that the district court (1) abused its discretion in ruling that Jones could
not refer to a particular exhibit as the county’s “policy”; (2) erred in its jury instructions
and in its special-verdict questions; (3) abus ed its discretion in limiting the testimony of
Jones’s treating medical providers; and (4) erred in not submitting Jones’s claim of future
damages for emotional distress to the jury. We affirm.
FACTS
Heather Jones went to the Century Plaza Building in Minneapolis to meet with a
caseworker about a housing issue. After th e meeting, Jones made a phone call using a
public phone on the second floor of the building. E.H., a se curity guard employed by the
county, testified that he heard Jones yelling into the phone and asked her to lower her voice.
According to E.H., Jones told him to “shut up,” then hung up the phone and called E.H. “a
fat f--k.” E.H. told Jones that he was ejecting her from the building.
Building surveillance cameras captured the following sequence of events. After
being approached by E.H., Jone s walked to the elevator, and E.H. followed. Both Jones
and E.H. exited the elevator on the first floo r of the building. E. H. followed Jones to a
service counter where she had her parking ticket validated. Jones, followed by E.H., then
walked toward the building exit, opened a door, and entered the vestibule. Before exiting
the building through a second set of doors, Jones stopped and lit a cigarette. E.H. reached
toward the cigarette and made contact with Jones’s hand. Jones then spun and flailed her
arm toward E.H.

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E.H. testified that Jones hit him on top of his head and tried to hit him again but
missed. Jones denied hitting or trying to hit E.H. E.H. tes tified that he grabbed Jones’s
hand and shoulder, took her to the ground, and used his knee to restrain her while he radioed
for assistance. Two police officers arrived a nd arrested Jones. Jones later pleaded guilty
to a trespassing violation.
Jones sued the county, clai ming that its employee, E.H., committed civil assault and
battery, sexual harassment in violation of the Minnesota Human Rights Act (MHRA), and
reprisal discrimination in violation of the MHRA . Following trial, a jury found that E.H.
did not commit an assault or battery or violate the MHRA, and it awarded Jones no
damages.
Jones filed a motion for a new trial, ar guing that a number of trial irregularities
deprived her of a fair trial and that several of the district court’s legal rulings were in error.
The district court denied the motion.
Jones appeals.
D E C I S I O N
The district court may grant a new trial because of “(a) [i]rregularity in the
proceedings of the court, referee, jury, or prevailing party, or a ny order or abuse of
discretion, whereby the moving party was depriv ed of a fair trial; . . . [or] (f) [e]rrors of
law occurring at the trial.” Minn. R. Civ. P. 59.01. We will not reverse a district court’s
denial of a new-trial motion absent a “clear abuse of discretion.” Frazier v. Burlington N.
Santa Fe Corp., 811 N.W.2d 618, 625 (Minn. 2012).

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I. The district court did not commit prej udicial error by ruling that Jones could
not refer to a particular exhibit as the county’s “policy.”

We review evidentiary rulings for an abuse of discretion. See Kelly v. Ellefson, 712
N.W.2d 759, 766 (Minn. 2006 ). “Entitlement to a new tria l on the grounds of improper
evidentiary rulings rests upon the complaini ng party’s ability to de monstrate prejudicial
error.” Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 46 (Minn. 1997) (quotation
omitted). “An error is prejudicial if it mi ght reasonably have changed the result.”
Torchwood Props., LLC v. McKinnon, 784 N.W.2d 416, 419 (Minn. App. 2010) (quotation
omitted).
Jones argues that the district court abus ed its discretion by ruling that Jones could
not refer to an exhibit as the county’s “policy.” Jones contends that she suffered prejudice
because she was unable to present her theory th at E.H. violated the county’s use-of-force
policy when he forcibly de tained her. The exhibit at issue was a document titled,
“Removing Persons from a Facility,” written by a county security-operations manager
more than one year after the incident giving rise to Jones’s claims. The security-operations
manager characterized the document as a memorandum to security staff to remind them of
the county’s policy and procedures on removing persons from facilities, in which physical
force was to be used only as a last resort to protect themselves or others. The district court
sustained two objections—once while Jones cro ss-examined the county’s expert witness,
and once during Jones’s closing argument—wh en Jones referred to the exhibit as the
county’s “policy.”

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The record indicates that the district court limited Jones’s presentation of evidence
only to the extent that Jones could not refer to the particular exhi bit as the county’s
“policy.” The district court did not limit Jo nes from presenting eviden ce to establish the
existence of the county’s use-of-force policy. Indeed, Jones elicited testimony from E.H.
confirming that the county’s policy was that security guards use physical force only as a
last resort to protect themselves or others. Because the evidentiary ruling did not prevent
Jones from presenting her theory of the case with regard to the county’s use-of-force policy,
Jones has not established that the district court committed prejudicial error. Therefore, the
district court did not abuse its discretion in denying a ne w trial on the basis of this
evidentiary ruling.
II. The district court did not commit prejudi cial error in its jury instructions or
in its special-verdict form.

“The [district] court has broad discretion both in writing jury instructions and in
framing special verdict questions.” Dang v. St. Paul Ramsey Med. Ctr., Inc., 490 N.W.2d
653, 658 (Minn. App. 1992), review denied (Minn. Dec. 15, 1992). A new trial is not
required unless the jury instruction was erroneou s and its effect was either prejudicial or
not determinable. Morlock v. St. Paul Guardian Ins. Co. , 650 N.W.2d 154, 159 (Minn.
2002). A jury instruction is erroneous if it “materially misstates the law.” George v. Estate
of Baker, 724 N.W.2d 1, 10 (Minn. 2006). “An error is prejudicial if there is a reasonable
likelihood that the giving of the instruction in question would have had a significant effect
on the verdict of the jury.” Youngquist v. W. Na t’l Mut. Ins. Co. , 716 N.W.2d 383, 386
(Minn. App. 2006) (quotation omitted).

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A. Official Immunity

“Official immunity protects a public official charged by law with duties that call for
the exercise of judgment or discretion unless the official is guilty of a [willful] or malicious
wrong.” Gleason v. Metro. Council Transit Operations , 582 N.W.2d 216, 220 (Minn.
1998) (quotation omitted). Official immunity applies to the exercise of discretionary duties
and does not apply when a public official ex ercises “mere ministerial duties,” which are
“absolute, certain, and imperative [duties], invol ving merely execution of a specific duty
arising from fixed and designated facts.” Id. (quotations omitted). “The application of
immunity is a question of law . . . .” Id. at 219. But “[w]hether or not an officer acted
maliciously or willfully is usually a question of fact to be resolved by a jury.” Johnson v.
Morris, 453 N.W.2d 31, 42 (Minn. 1990).
Jones argues that the district court impr operly submitted two que stions on official
immunity to the jury b ecause the application of official immunity is a question of law to
be determined by the district court. The special-verdict form contained two questions
labeled, “Official Immunity.” The jury was asked, first, whether E.H.’s duties during the
incident called for the exerci se of judgment or discreti on and, second, whether E.H.
committed a willful or malicious wrong agains t Jones. Because the determination of
malicious or willful conduct is generally a ques tion of fact for the ju ry, the district court
did not err in submitting the second question to the jury. See Johnson, 453 N.W.2d at 42.
But the first question essentially asked the ju ry to determine whethe r official immunity
applied to E.H.’s actions. Be cause the application of offici al immunity is a question of
law, the district court erred in submitting the first question to the jury. See id. (stating that

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“[w]hether official immunity applies requires the court to focus on the nature of the
particular act in question,” and determining that the officer’s discretionary acts were of the
type giving rise to official immunity).
Despite the district court’s error, Jones ha s not shown that the error prejudiced the
outcome of the trial or that its effect is inde terminable. The jury fo und that E.H. did not
commit an assault or battery against Jones. Thus, any findings by the jury on official
immunity were immaterial to its finding on liability . The district court did not abuse its
discretion in denying a new tria l on the basis of the special- verdict questions related to
official immunity.
B. Use of Reasonable Force

In Minnesota, the circumst ances in which a person may use reasonable force on
another person include “when us ed by a person [who is] not a public officer in arresting
another [person] . . . in the manner provide d by law,” or “when used by any person in
resisting . . . an offense agains t the person.” Minn. Stat. § 60 9.06, subd. 1(2), (3) (2016).
The district court instructed the jury on both potential circumstances and included a
corresponding question about the use of reasonable force on the special-verdict form. The
district court took its jury instruction from CIVJIG 60.63, which in turn, is based on Minn.
Stat. § 609.06. See 4A Minnesota Practice, CIVJIG 60.63 (2017).
Jones argues that the district court erred in instructing the ju ry on the use of
reasonable force, on the basis th at E.H. was not privileged to perform a “citizen’s arrest”
of Jones under Minn. Stat. § 609.06, subd. 1(2), because (1) he was acting within the scope

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of his official duties as a security guard a nd (2) he did not arrest Jones in the “manner
provided by law” because he allegedly violated the county’s use-of-force policy.
Jones provides this court with no legal authority to support either of her assertions.
Issues not adequately argued are deemed waived on appeal and need not be addressed by
this court. See State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997)
(“An assignment of error based on mere asse rtion and not supporte d by any argument or
authorities in appellant’s brief is waived an d will not be considered on appeal unless
prejudicial error is obvious on mere inspection.”) (quotation omitted). Moreover, because
the jury found that E.H. did not commit an assault or battery , the jury did not reach the
question of whether E.H.’s ac tions were nonetheless justif ied by the use of reasonable
force. Therefore, prejudicial error is not obvious upon mere inspection. See Youngquist,
716 N.W.2d at 386 (holding that prejudicial error exists if there is a reasonable likelihood
that an instruction had significant effect on the verdict). We conclude that the district court
did not abuse its discretion in denying a new trial on the basis of the reasonable-force jury
instruction and special-verdict question.
III. The district court did not commit prej udicial error by limiting the testimony
of appellant’s treating medical providers.

Jones next argues that the district court improperly limited the testimony of her three
treating medical providers, which she attempte d to disclose under Minn. R. Civ. P.
26.01(b)(3). Jones maintains that she made adequate disclosures under the rule.
“[T]he proper remedy for failure to disclose information regarding an expert witness
is largely within the discreti on of the [district] court.” State by Spannaus v. Heimer , 393

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N.W.2d 687, 691 (Minn. App. 1986) (quoting Ford v. Chi., Milwaukee, St. Paul & Pacific
R.R. Co., 294 N.W.2d 844, 847 (Minn. 1980)). We review the district court’s evidentiary
ruling for an abuse of discretion. Id. at 693. A new trial is warranted only if the moving
party demonstrates that an improper evidentiary ruling resulted in prejudice. Kroning, 567
N.W.2d at 46.
Minn. R. Civ. P. 26.01(b)(3) provides that , when a party’s expert witness is not
required to submit a written report on her antic ipated testimony, the party must disclose
the “subject matter” of the witness’s testim ony and provide “a summary of the facts and
opinions to which the witness is expected to testify.” Jones and the county agree that there
is no caselaw interpreting the adequacy of a party’s disclosure under the rule.
Before trial, Jones submitted a rule 26.01 (b)(3) disclosure in which she identified
three nonretained expert witnesses—a physical therapist, a nurse practitioner, and a social
worker—who treated Jones and whom she intended to call as treating experts at trial.
Jones’s disclosure summarized, by date of office visit, the symptoms that Jones reported to
the medical providers and their diagnoses and treatment plans. The county moved to limit
the medical providers’ testimony, arguing that Jones failed to make an adequate disclosure
under rule 26.01(b)(3) and that the provider s were not qualified to testify on medical
causation. The district court granted the moti on to the extent that the medical providers
could not testify on future treatment plans or medical causation.
Here, even if we assume, for the purposes of this appeal, that the district court
improperly limited the testimony of Jones’s me dical providers, Jones has not shown that
the ruling resulted in prejudice. The jury found that E.H. committed no underlying assault

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or battery and therefore was not liable for any harm. Nonetheless, Jones contends that the
district court’s ruling prevented Jones from offering certain medical evidence, which Jones
does not identify, that was relevant to a findi ng that E.H.’s contact of Jones was harmful
and constituted a battery. However, the jury heard testimony from all three of Jones’s
medical providers on the symptoms that J ones presented following the alleged battery,
which included depression, fatigue, sleeplessness, neck and ankle pain, and a facial injury.
Also, medical records produced by two of the medical prov iders were submitted into
evidence. In addition, both Jones and her daughter testifie d on the extent of Jones’s
symptoms and injuries. More over, the jury viewed the surv eillance video footage of the
incident. Jones has not shown that the ex clusion of additional, unspecified medical
evidence prejudiced the ju ry’s finding on the question of battery. We conclude that the
district court did not abuse its discretion in denying a ne w trial on the basis of any
limitations on the testimony of Jones’s treating medical providers.
IV. Any error in declining to submit Jone s’s claim of future damages for emotional
distress to the jury was harmless.

Jones argues that the district court e rred in not submitting her claim of future
damages for emotional distress to the jury. Because the jury found no liability, and nothing
in our decision upsets that finding, no damages— past or future—were available to Jones.
Thus, any error by the district court in not submitting Jones’s claim for future damages to
the jury is harmless. We overlook harmless e rrors that do not affect a party’s substantial
rights. Minn. R. Civ. P. 61.
Affirmed.