Troy David Mack, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-0036

Troy David Mack,
Appellant,

vs.

Blake Azurin Martin,
Respondent,

William Azurin Martin,
Respondent,

Ian Alexander Stinson,
Respondent.

Filed August 8, 2022
Reversed and remanded
Johnson, Judge

Carver County District Court
File No. 10-CV-19-1046

Denis E. Grande, Zachary P. Armstrong, DeWitt L.L.P., Minneapolis, Minnesota (for
appellant)

Kyle H. Torvinen, Superior Law Offices, Superior, Wisconsin (for respondent Blake
Azurin Martin)

Timothy K. Masterson, Alexandra L. Zabinski, McCollum Crowley P.A., Bloomington,
Minnesota (for respondent William Azurin Martin)

Kevin F. Gray, Matthew W. Moehrle, Paul E. Storm, Rajkowski Hansmeier Ltd., St. Cloud,
Minnesota (for respondent Ian Alexander Stinson)

Considered and decided by Johnson, Presiding Judge; Worke, Judge; and Ross,
Judge.
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NONPRECEDENTIAL OPINION
JOHNSON, Judge
Three men engaged in target-shooting on rural property in Carver County. One of
the three men fired a bullet that struck a motorcyclist approximately one-quarter to one-
third of a mile from the shooting range. The motorcyclist sued the three men, alleging
negligence. The two defendants who did not shoot the plaintiff filed motions for summary
judgment, and the district court granted the motions. We conclude that the district court
erred by granting the summary-judgment motions because there are genuine issues of
material fact as to whether the two movants owed a duty of care to the plaintiff and whether
their actions were a proximate cause of the plaintiff’s injuries. Therefore, we reverse and
remand for further proceedings.
FACTS
In June 2019, Blake Azurin Martin lived on a rural 30- to 40-acre lot in Carver
County. In the early evening of June 25, 20 19, he and two others —his father, William
Azurin Martin, and his step-cousin , Ian Alexander Stinson—gathered at his home to
engage in target-shooting. Blake and William had suggested that the group do target-
shooting at Blake’s before going out to dinner to celebrate William’s wife’s birthday.
Blake wanted to practice target-shooting because he was planning to take a firearms
examination to qualify for employment as a police officer.
Blake had done target-shooting on his property on three prior occasions, once with
William. On the prior occasions, the targets were cans and metal spinner targets that were
set on the ground or low to the ground in front of a stack of logs. On this occasion, Blake,
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William, and Ian shot at a paper target with a printed human silhouette, which William
provided. Blake stacked logs close together to create a base that was three to four feet
high. William may have helped Blake add logs to the base; there is conflicting evidence
as to whether he did so. 1 Ian and Blake found a used sheet of plywood, which was five-
eighths of an inch in thickness, to hold the paper target. The plywood sheet was wedged
between logs in the base so that the plywood sheet would stand up vertically. Ian helped
staple the paper target to the plywood sheet. The top of the log base was below the center
of the target’s silhouette.
Behind the target was a heavily wooded area. Before the men began shooting,
William’s wife asked about the direction in which the group planned to shoot. Blake used
a map application on his cell phone to determine the orientation of the shooting range and
determined that the group would not be shooting toward nearby county road 40. William
also looked at the map on Blake’s cell phone and agreed that the group would be shooting
away from the road.
The group stood approximately 47 feet from the target when shooting. Blake,
William, and Ian used their own respective firearms and ammunition, and each shot

1Blake initially testified in his deposition that he alone assembled the log base, but
he later testified that William “could have” helped him with the placing of the logs. Ian
testified in his deposition that William and Blake set up the shooting range but did not
provide specifics about which of them performed which steps of the process. William
testified in his deposition that he remained inside Blake’s home while Blake and Ian set up
the shooting range. In his subsequent criminal case, Blake stated under oath that he and
his father assembled the target, which included stacked logs and a sheet of plywood. In
William’s criminal case, he stated under oath that he agreed with “every one” of Blake’s
answers and stated that he “set up the target” in a reckless manner.
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approximately 12 to 15 rounds. Ian shot first, at approximately 6:09 p.m., using a CZ 75
P-01 nine-millimeter pistol. Blake shot second, at approximately 6:11 p.m., using a Glock
19 nine-millimeter pistol. William shot third, from approximately 6:11 to 6:14 p.m., using
an HK USP 40-caliber pistol. Ian’s fiancé e then shot four rounds at approximately
6:15 p.m., using Ian’s pistol.
Shortly after the shooting began, a man arrived at Blake’s home in a vehicle and
informed the group that a person on county road 40 had been struck by a bullet that
apparently had been fired by one of them. Troy David Mack had been driving his
motorcycle on county road 40, approximately one-quarter to one-third of a mile from the
shooting range, when a bullet struck him in his upper chest. A person who stopped to assist
Mack called 911 at 6:13 p.m. Based on forensic testing by law enforcement and the timing
of the 911 call, all parties agree that Blake fired the bullet that struck Mack.
The state later charged Blake, William, and Ian with felony intentional discharge of
a firearm, in violation Minn. Stat. § 609.66, subd. 1a(a)(2) (2018), and misdemeanor
reckless discharge of a firearm, in violation of Minn. Stat. § 609.66, subd. 1(a)(1). All
three men entered into plea agreements in which they pleaded guilty to the misdemeanor
offenses and the state dismissed the felony charges.
In October 2019, Mack commenced this action against Blake, William, Ian, and
Ian’s fiancée. Mack alleged one count of negligence against each defendant. Mack later
stipulated to the dismissal of Ian’s fiancée.
In May and June of 2021, William and Ian filed motions for summary judgment.
Both William and Ian argued that they did not owe a duty of care to Mack. Ian also argued
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that his actions were not a proximate cause of Mack’s injuries and that he was not engaged
in a joint enterprise with Blake. In September 2021, the district court filed an order in
which it granted the motions. The district court reasoned that William’s and Ian’s actions
were not a proximate cause of Mack’s injuries and that William and Ian were not engaged
in a joint enterprise with Blake. Mack appeals.
DECISION
Mack argues that the district court erred by granting William’s and Ian’s motions
for summary judgment. A district court must grant a motion for summary judgment “if the
movant shows that there is no genuine issue as to any material fact and the movant is
entitled to judgment as a matter of law.” Minn. R. Civ. P. 56.01. A genuine issue of
material fact exists if a rational trier of fact, considering the record as a whole, could find
for the nonmoving party. Frieler v. Carlson Mktg. Grp., Inc., 751 N.W.2d 558, 564 (Minn.
2008). This court applies a de novo standard of review to a district court’s legal conclusions
and view s the evidence in the light most favorable to the nonmoving party. Staub as
Trustee of Weeks v. Myrtle Lake Resort, LLC, 964 N.W.2d 613, 620 (Minn. 2021).
“Negligence is the failure to exercise the level of care that a person of ordinary
prudence would exercise under the same or similar circumstances.” Doe 169 v. Brandon,
845 N.W.2d 174, 177 (Minn. 2014). “A defendant in a negligence action is entitled to
summary judgment when the record reflects a complete lack of proof on any of the four
elements necessary for recovery: (1) the existence of a duty of care, (2) a breach of that
duty, (3) an injury, and (4) the breach of that duty being the proximate cause of the injury.”
Fenrich v. Blake School, 920 N.W.2d 195, 201 (Minn. 2018) (quotation omitted).
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In his principal brief, Mack argues that the district court erred in its analysis of the
issues of proximate cause and joint enterprise. Mack contends that William’s and Ian’s
actions in assembling the shooting range were a proximate cause of his injuries and that
William, Ian, and Blake were engaged in a joint enterprise. In response, William and Ian
argue that the district court did not err with respect to those two issues. In addition, William
and Ian argue that the district court’s summary judgment may be affirmed on an alternative
ground: that neither of them owed a duty of care to Mack. William and Ian presented that
argument to the district court, but the district court did not discuss or resolve the duty-of-
care issue because it determined that summary judgment was appropriate for other reasons.
An appellate court “may affirm a grant of summary judgment if it can be sustained on any
ground” that was argued to the district court. Doe 76C v. Archdiocese of St. Paul, 817
N.W.2d 150, 163 (Minn. 2012); see also Day Masonry v. Independent Sch. Dist. 347 , 781
N.W.2d 321, 331 (Minn. 2010). Because we conclude below that one of Mack’s arguments
has merit, see infra part II, we must consider William and Ian’s alternative argument
concerning duty of care. Because the “existence of a duty of care is a threshold question,”
Doe 169, 845 N.W.2d at 177, we begin our analysis with that issue.
I. Duty of Care
As stated above, William and Ian argue that they are entitled to summary judgment
on the ground that they did not owe a duty of care to Mack.
In general, “a person does not owe a duty of care to another —e.g., to aid, protect,
or warn that person—if the harm is caused by a third party’s conduct.” Doe 169, 845
N.W.2d at 177-78 (citing Delgado v. Lohmar, 289 N.W.2d 479, 483 (Minn. 1979)). But
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this general rule is subject to two exceptions. First, the law may impose a duty of care if
“there is a special relationship between a plaintiff and a defendant and the harm to the
plaintiff is foreseeable.” Fenrich, 920 N.W.2d at 201-02 (quotation omitted). Second, the
law may impose a duty of care if “‘the defendant’s own conduct creates a foreseeable risk
of injury to a foreseeable plaintiff.’” Id. at 202 (quoting Domagala v. Rolland, 805 N.W.2d
14, 23 (Minn. 2011)). If either exception applies, “a negligent defendant may be held liable
to a plaintiff for harm caused by a third party.” Id.
A. First Exception: Special Relationship
William and Ian argue that the first exception—the existence of a special
relationship—does not apply. Mack does not argue on appeal that a special relationship
exists. In Minnesota, special relationships have been recognized only in limited situations,
such as relationships between “parents and children, masters and servants, possessors of
land and licensees, common carriers and their customers, or people who have custody of a
person with dangerous propensities.” Delgado, 289 N.W.2d at 483-84. In this case, there
was no such relationship between William and Ian and Mack. Thus, the first exception
does not apply.
B. Second Exception: Defendants’ Own Conduct
In their responsive briefs, William and Ian do not specifically address the second
exception to the general rule. In his reply brief, Mack argues that William’s and Ian’s
conduct created a dangerous situation because of how they assembled the target and the
shooting range. At oral argument, Ian’s attorney argued that the second exception does not
8
apply because William and Ian did not engage in the type of conduct required by the
caselaw.
1. Misfeasance or Nonfeasance
To reiterate, the second exception to the general rule applies if “the defendant’s own
conduct creates a foreseeable risk of injury to a foreseeable plaintiff.” Doe 169, 845
N.W.2d at 178 (emphasis omitted) (quotation omitted). In this context, the defendant’ s
“own conduct” refers to conduct in the nature of misfeasance, not nonfeasance. Id.
Misfeasance means “active misconduct working positive injury to others.” Fenrich, 920
N.W.2d at 203 (quotation omitted). In contrast, nonfeasance means “passive inaction or a
failure to take steps to protect others from harm.” Id. (quotation omitted). A defendant
may be held liable for harm caused by a third party if the defendant engaged in misfeasance
but not if the defendant engaged in nonfeasance. Doe 169, 845 N.W.2d at 178. If the
relevant facts are undisputed, the question whether conduct “is misfeasance or nonfeasance
is a question of law,” but if there are genuine issues of material fact about a defendant’s
actions or inaction, “a court may not be able to decide the question by summary judgment.”
Fenrich, 920 N.W.2d at 205 n.4.
In this case, there are genuine issues of material fact concerning the distinction
between misfeasance and nonfeasance. We must view the evidence in the light most
favorable to Mack, the nonmoving party. Staub, 964 N.W.2d at 620. Viewed in that light,
the summary-judgment record contains evidence from which a factfinder reasonably could
find that William’s conduct was misfeasance rather than nonfeasance. There is evidence
in the record that William “could have” helped Blake stack logs to create a base for the
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plywood sheet that held the paper target. The logs were stacked to a height of only three
to four feet, which was below the center of the silhouette on the paper target and, thus, too
low to stop or slow a bullet shot at the upper part of the target. There also is evidence in
the record that William confirmed for the group the appropriateness of the orientation of
the shooting range when Blake used a map on his cell phone to determine the location of
county road 40. With respect to Ian, there is evidence in the record that he helped Blake
select a relatively thin sheet of plywood to be the support for the paper target. In addition,
Ian helped staple the paper target to the plywood sheet at a height that was above the log
base, which may have affected the trajectory of bullets shot through the target and plywood
sheet. William’s and Ian’s conduct is similar to the conduct of defendants in other cases
that the supreme court has characterized as misfeasance. See Abel v. Abbott Northwestern
Hosp., 947 N.W.2d 58, 79 (Minn. 2020) (concluding that academic advisor engaged in
misfeasance by “knowingly endors[ing] a practicum” that might subject student to
unlawful discrimination); Fenrich, 920 N.W.2d at 203-04 (concluding that high school
coach engaged in misfeasance by assuming supervision of students’ travel arrangements);
see also Smits as Trustee for Short v. Park Nicollet Health Servs., 955 N.W.2d 671, 681-
82 (Minn. App. 2021) (concluding that defendant engaged in misfeasance by accepting
plaintiff as patient and providing ongoing care), rev. granted (Minn. May 18, 2021).
Thus, the evidence is sufficient to create a genuine issue of material fact as to
whether William’s and Ian’s conduct was misfeasance.

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2. Foreseeability
If the defendant’s conduct is misfeasance, the next step is to “determine whether
that conduct created a foreseeable risk of injury to a foreseeable plaintiff.” Doe 169, 845
N.W.2d at 178. To determine whether a risk is foreseeable, we consider “whether the
specific danger was objectively reasonable to expect, not simply whether it was within the
realm of any conceivable possibility.” Fenrich, 920 N.W.2d at 205 (quotation omitted).
“The test is not whether the precise nature and manner of the plaintiff’s injury was
foreseeable, but whether the possibility of an accident was clear to the person of ordinary
prudence.” Domagala, 805 N.W.2d at 27 (quotation omitted). “If the connection between
the danger and the defendant’s own conduct is too remote, there is no duty.” Doe 169, 845
N.W.2d at 178. “‘In close cases, the issue of foreseeability should be submitted to the
jury.’” Fenrich, 920 N.W.2d at 205 (quoting Domagala, 805 N.W.2d at 27).
Viewing the evidence in the light most favorable to Mack, a reasonable factfinder
reasonably could find that the risk of injury to a person such as Mack was foreseeable. The
pertinent question is “whether it was objectively reasonable to expect the specific danger
causing the plaintiff’s injury,” i.e., “whether the possibility of an accident was clear to the
person of ordinary prudence.” See Domagala, 805 N.W.2d at 27 (quotation omitted).
Blake testified in his deposition that, based on his gun-safety traini ng, he expected that
nine-millimeter bullets would pierce the plywood sheet that held the paper target. He also
testified that, based on his gun-safety training, he understood that a nine-millimeter bullet
could travel a “few hundred yards,” which he clarified to mean between 300 and 500 yards
(which equates to between 0.17 and 0.28 of a mile). The evidence also shows that members
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of the group were aware of the county road beyond the woods that surrounded the shooting
range and that they checked a map on Blake’s cell phone in an attempt to avoid shooting
in the direction of the county road. The evidence that members of the shooting party
actually were aware of the possibility and consequences of a stray bullet is sufficient to
allow a reasonable factfinder to find that it was objectively reasonable to expect that
shooting at the target might endanger persons traveling nearby on county road 40. This
evidence is similar to evidence in other cases that the supreme court has deemed sufficient
to allow a findi ng of foreseeability. See Delgado, 289 N.W.2d at 484 (concluding that
trespassing hunters should have known of “unreasonable risk of harm to those lawfully on
the property”); Domagala, 805 N.W.2d at 27 (concluding that reasonable person should
expect that shaking of large bucket precariously hanging from skid loader could cause
injury to nearby person).
Thus, the evidence is sufficient to create a genuine issue of material fact as to
whether the risk of injury to Mack was foreseeable. Th erefore, William and Ian are not
entitled to summary judgment on the ground that they did not owe a duty of care to Mack.
II. Proximate Cause
Mack argues that the district court erred by concluding, as a matter of law, that
William’s and Ian’s actions were not a proximate cause of his injuries.
To prevail on a negligence claim, a plaintiff must prove, among other things, that a
defendant’s breach of a duty of care was a proximate cause of his or her injury. Lubbers
v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995). But-for causation, by itself, is
insufficient. George v. Estate of Baker, 724 N.W.2d 1, 10 (Minn. 2006). A defendant’s
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negligence must be shown to be a “direct” or “proximate” cause of the resulting injury. Id.
“[F]or a party’s negligence to be the proximate cause of an injury, the injury must be a
foreseeable result of the negligent act and the act must be a substantial factor in bringing
about the injury.” Staub, 964 N.W.2d at 620 (alteration in original) (quotation omitted).
Typically, proximate cause is a question of fact for the jury. Id. at 621; Curtis v. Klausler,
802 N.W.2d 790, 793 (Minn. App. 2011). But if “reasonable minds could reach only one
conclusion, the existence of proximate cause is a question of law.” Staub, 964 N.W.2d at
621 (quotation omitted).
The district court concluded that William’s and Ian’s actions in assembling and
composing the shooting range were not a proximate cause of Mack’s injuries. The district
court reasoned that the proximate cause of Mack’s injuries was Blake’s independent act of
discharging his firearm toward county road 40. The district court reasoned that, with
respect to his claims against William and Ian, Mack could prove only but-for causation,
which is insufficient. See George, 724 N.W.2d at 10.
For purposes of this opinion, we do not disagree with the notion that Blake’s actions
were a proximate cause of Mack’s injuries . But an injury can have more than one
proximate cause. Staub, 964 N.W.2d at 621, 629. The question is whether—setting aside
Blake’s actions—William’s and Ian’s actions were “a substantial factor in bringing about
the injury.” See id. at 620. Viewing the evidence in a light most favorable to Mack, the
evidence is sufficient to allow a factfinder to so find. As stated above, there is evidence
that William helped Blake assemble the log base that held the plywood sheet with the paper
target. There also is evidence that William confirmed Blake’s determination that the
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shooting range was not oriented toward county road 40. In addition, there is evidence that
Ian helped Blake select a sheet of plywood to hold the paper target. Also, there is evidence
that Ian helped staple the paper target to the plywood sheet so that the center of the
silhouette was above the log base and at a height that might have caused bullets shot
through the target and plywood to travel as far as county road 40. This evidence is
sufficient to allow a reasonable factfinder to find that William’s and Ian’s actions were a
substantial factor in bringing about Mack’s injuries.
Thus, the district court erred by concluding that, as a matter of law, William’s and
Ian’s actions were not a proximate cause of Mack’s injuries.
III. Joint Enterprise
Mack also argues that the district court erred by determining that William and Ian
should not be held jointly liable with Blake on the ground that the three defendants were
engaged in a joint enterprise. Mack’s joint-enterprise theory is an alternative to his theory
that William and Ian should be held liable based solely on their own conduct.
Participants in a joint enterprise may be held liable for the negligent actions of other
participants in the enterprise. Spannaus v. Otolaryngology Clinic, 242 N.W.2d 594, 597
(Minn. 1976). To establish the existence of a joint enterprise, a plaintiff must prove “(1) a
mutual understanding for a common purpose, and (2) a right to a voice in the direction and
control of the means used to carry out the common purpose.” Delgado, 289 N.W.2d at
482. The second requirement has been interpreted to mean that participants have “an equal
right to direct and govern the movements and conduct of every other participant with
respect to the mutual undertaking.” Id. (emphasis added). The right to control must relate
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to the instrument that caused injury to the plaintiff. See i d. at 483 (firearm); Pierson v.
Edstrom, 174 N.W.2d 712, 714 (Minn. 1970) (vehicle); Ruth v. Hutchinson Gas Co., 296
N.W. 136, 141 (Minn. 1941) (brooder house). Physical control over the instrument is not
required; rather, “the control required is the legal right to exercise such control.” Murphy
v. Keating, 283 N.W. 389, 392 (Minn. 1939). Legal control “implies an enforceable right
to control the movements of another.” Weber by Sanft v. Goetzke, 371 N.W.2d 611, 616
(Minn. App. 1985), rev. denied (Minn. Sept. 26, 1985).
The district court determined that there was no joint enterprise because William and
Ian did not have control over Blake’s firearm , which was the instrumentality that injured
Mack. But Mack’s joint-enterprise argument is broader than just the use of Blake’s
firearm. Mack contends that the three defendants engaged in a joint enterprise in
everything they did together that evening, including the assembly of the shooting range.
Considered in that light, the first requirement of the joint-enterprise doctrine is satisfied
because the three men plainly had “a mutual understanding for a common purpose,” which
was to engage in target-shooting. See Delgado, 289 N.W.2d at 482.
But Mack also must prove the second requirement—that each defendant had “a right
to a voice in the direction and control of the means used to carry out the common purpose.”
See id. There is a lack of evidence necessary to prove that fact. The target-shooting
occurred on Blake’s property, where Blake previously had done target-shooting. The logs
and plywood sheet were present on Blake’s property, and Blake had a primary role in
gathering the materials and putting them together. In addition, the map that was consulted
to determine the orientation of the shooting range was on Blake’s cell phone. The evidence
15
shows cooperation among the three men, but there is no evidence that William or Ian had
“an equal right to direct and govern the movements and conduct of every other participant”
or had a right to control the instruments that caused injury to Mack—the logs, the plywood
sheet, and the arrangement of the shooting range. See i d. (emphasis added). Instead, the
evidence supports a conclusion that the three defendants were, like the defendants in
Delgado, simply a small group of persons “engaged in recreational activity on a gratuitous
and voluntary basis.” See id. at 483; see also Weber, 371 N.W.2d at 616 (concluding family
members’ agreement to clean up jointly owned property was not joint enterprise).
Thus, the district court did not err by concluding that Blake, William, and Ian were
not part of a joint enterprise.
In sum, genuine issues of material fact exist as to whether William and Ian owed
Mack a duty of care and whether William’s and Ian’s actions were a proximate cause of
Mack’s injuries. Therefore, the district court erred by granting William’s and Ian’s motions
for summary judgment. Accordingly, we reverse and remand for further proceedings.
Reversed and remanded.