DocketNumber： A03-1635, A04-205
Citation Numbers： 705 N.W.2d 746
Judges： Anderson, Hanson, Meyer
Filed Date： 11/17/2005
Status： Precedential
Modified Date： 8/26/2023
OPINION
Korey Stringer, a highly respected member of the Minnesota Vikings football team, died of heat stroke after the second day of practice at the 2001 Vikings training camp. Kelci Stringer, Korey Stringer’s wife, as trustee and personal representative of the estate of Korey Stringer, brought a wrongful death action against the respondents in Hennepin County District Court.
On August 1, 2001, Korey Stringer, 27, a Pro Bowl offensive tackle for the Minnesota Vikings, died of complications from heat stroke. Stringer collapsed after the morning practice on the second day of training camp in Mankato, Minnesota. His core body temperature, when first measured at Immanuel St. Joseph’s Hospital in Manka-to, was 108.8 degrees F.
First Day of 2001 Training Camp
Stringer reported to the Vikings training camp on Sunday, July 29, 2001. At a team meeting that evening, head athletic trainer Charles Barta
The chain of events leading to Korey Stringer’s death appears to start on the first day of practice, July 30, 2001. July 30 was a day of high heat and humidity with a heat index of at least 109 during the afternoon practice. On that first day, there was a morning and an afternoon practice where the players did not wear their full gear. Before the morning practice, Stringer told Barta that he had an upset stomach. Barta listened to Stringer’s self-diagnosis that he was “jumpy” and gave him some Turns, an antacid. Before the afternoon practice, Barta gave Stringer some Gatorade with an electrolyte supplement because Barta knew that Stringer had suffered from “heat-related problems” in previous training camps. As the result of heat-related illness, Stringer had received fluids intravenously at least once at a previous training camp.
About 45 minutes into the afternoon practice, Stringer vomited twice. Vikings offensive line coach Mike Tice told Stringer to leave the practice and called Barta over to look at Stringer. Barta again listened to Stringer’s self-diagnosis that he was feeling anxious and brought him to the on-field trailer after Stringer vomited a third time. Barta stated in his deposition that he told Stringer to consume some liquids, but he did not monitor whether Stringer drank anything.
Already inside the trailer were Fred Zamberletti, coordinator of medical services for the Vikings; Paul Osterman, an assistant trainer
Stringer left the trailer that afternoon without anyone examining him. Dr. Knowles’ report for July 30 stated that Stringer “had an episode of heat exhaustion during afternoon training camp. He recovered without incident following rest and hydration.” Athletic intern D.J. Kear-ney said Barta instructed him to bring some Gatorade to Stringer’s dormitory room that evening. The following morning, July 31, Barta asked Stringer how he felt and checked Stringer’s weight on the weight chart
Second Day of Practice
July 31, the second day of practice, was also a day of high heat and humidity. The morning practice began at approximately 8:45 a.m. with the players wearing full gear. The heat index was already almost 90 when the morning practice began.
Shortly after the main morning practice ended at approximately 11:15 a.m., Stringer dropped to his knees, fell to his right side, and then threw his hands over his head and lay on his back. Osterman and Kearney heard another Vikings player call “Trainer.” Osterman was the only athletic trainer remaining on the field at that time. Barta had given Osterman a cell phone and told him to call Zamberletti “if anything comes up.” Barta also gave Oster-man a list of phone numbers, which included Dr. Knowles’ number and an ambulance service.
In his deposition, Osterman initially stated that he “saw Korey getting up from the ground after kneeling on one knee.” Osterman later stated that Stringer was lying flat on his back when he first arrived and that he did not know how long Stringer had been lying there. Kearney also confirmed that he had initially seen Stringer lying flat on his back. The photographer, who had previously observed Stringer, also saw Stringer lying on the football field and estimated that he was lying there for about five minutes. Although two other witnesses said that Stringer had been moaning or groaning for several minutes, Osterman said that he had not heard him. Osterman testified that he asked Stringer how he was doing, but Stringer ignored him, and again got up without any assistance. Stringer went to the “big bag,” hit it one time, and then headed toward the trailer. Stringer was sweating, but Oster-man did not remember any details about what Stringer was wearing or how sweaty he was.
Inside the Trailer
Osterman said that even though he thought Stringer was “doing fine,” he brought Stringer to the air-conditioned trailer as a “preventive” measure. Oster-man testified that Stringer “jogged” to the trailer, but a Vikings teammate stated that Stringer only jogged a couple of steps and then walked to the trailer. According to Osterman, about five minutes passed between the time he saw Stringer lying on
Osterman’s testimony was that when Stringer was inside the trailer, he “jumped up” on one of the tables. Osterman said he asked Stringer how he was. It appears from the record that Stringer did not respond to Osterman’s question. About five minutes later, Kearney also entered the trailer with some water for Stringer even though, according to Barta, Gatorade. and ice bags were already inside the trailer. Kearney left soon thereafter. No one else was in the trailer. Stringer drank “one or two sips” of the water. Osterman said that he determined that Stringer’s skin was “cool and moist”
After this time had passed, Stringer got off the table and moved to the floor. He asked Osterman to remove his shoes and socks and cut the tape from his ankles. Osterman did so and said that Stringer thanked him, but Osterman did not recall Stringer saying anything else the rest of the time while in the trailer and he did not ask Stringer any other questions. Oster-man also said that Stringer drank some more sips of water, but he did not know how much. A bit later, Stringer moved back to the table and began humming and “bopping his head back and forth.” He continued this behavior for another ten minutes or more.
Osterman then called the athletic training room to have someone come with a golf cart to pick up Stringer. Osterman said that he waited to call the training room because “they’re pretty busy after practice and, * * .* there really wouldn’t have been anyone around to come out before that” and because he did not think this was an emergency. Stringer got off the table and lay down on the floor again. Osterman applied at least one ice towel to Stringer’s forehead, but Stringer pushed it away and Osterman did not reapply it. The golf cart came about five to ten minutes after Oster-man placed the call to the training room.
When the golf cart arrived, Osterman and Kearney tried to get Stringer up, but he was unresponsive. Osterman testified that he instructed Kearney to ■ get him some ice towels and to get Zamberletti. Kearney stated that he “knew there was something not right about the situation” because Stringer was not responding and appeared to be having difficulty moving. Kearney and Osterman rolled Stringer on to his side. Osterman said, “I was kind of confused because that was the first sign that something was going wrong.” Oster-man also said that this was the first time he checked any of Stringer’s vital signs, such as his pulse. Osterman said Stringer’s breathing was “normal”; his pulse was steady but slow, but he did not count the beats per minute. He did not have a thermometer and did not think to check Stringer’s temperature. He also did not take Stringer’s blood pressure. He applied two ice towels to Stringer. Neither Osterman nor Kearney called an' ambulance up to this point.
Zamberletti testified that he then instructed Osterman to leave the trailer and to call for a van. Osterman did so and when he came back inside the trailer, Zam-berletti told him to call Dr. Knowles.
During this time, Kearney, on his own, replaced one ice towel that was behind Stringer’s neck and another on his chest. Kearney also monitored Stringer’s airway to make sure he was breathing and heard “a lot of fluid or saliva.” He said that Stringer’s skin was “cool and moist.” Zamberletti also testified that when he returned to the trailer, he monitored Stringer’s airway, breathing, and circulation. Zamberletti testified that at that time he did not think Stringer’s condition was heat-related. Instead, he said, “I thought there was a possibility [Stringer] could have just fainted. I thought that he could have had the possibility of a seizure, which would have — could have béen done by an insect bite or some medication that he had taken or something.”
Hospitalization and Death
The ambulance was dispatched at 12:00 noon and arrived at the football field at 12:08 p.m. The paramedics put Stringer on a backboard and briefly examined him. Zamberletti said that the paramedics did not. ask him any questions. Zamberletti rode in the ambulance with Stringer to the hospital. Zamberletti observed the paramedics taking Stringer’s blood pressure and pulse and he assisted them with suctioning saliva from Stringer’s mouth. Neither Zamberletti nor the paramedics took any action to cool Stringer when he was in
On admission, Stringer was unconscious, his pulse was 148 beats per minute, and his blood pressure could not be determined. When hospital personnel took Stringer’s temperature at 12:35 p.m., the reading was 108.8 degrees F. The hospital packed bags of ice around Stringer, inserted intravenous lines for rapid infusion of saline, and attempted other methods to assist in cooling. As Stringer’s condition continued to worsen, hospital personnel attempted infusions of plasma, dialysis, and drug treatments. CPR was started at about 1:20 a.m. on August 1, but was finally discontinued after about 30 minutes. Korey Stringer died from heat stroke at 1:50 a.m. on August 1, 2001.
Cause of Action
Kelci Stringer, Korey Stringer’s wife and personal representative of his estate, filed a wrongful death action in Hennepin County District Court asserting 13 separate counts. Count I included Osterman and Zamberletti and asserted they each had a personal duty to protect and care for Korey Stringer’s health and that they were grossly negligent in carrying out their personal duty. The court determined that Osterman and Zamberletti did not owe Korey Stringer a personal duty and that they were not grossly negligent and granted Osterman’s and Zamberletti’s motion for summary judgment, dismissing the counts against them.
Kelci Stringer appealed. The court of appeals affirmed, holding that although Osterman and Zamberletti owed Korey Stringer a personal duty, their actions were not grossly negligent as a matter of law. Stringer v. Minnesota Vikings Football Club, LLC, 686 N.W.2d 545, 551-52 (Minn.App.2004). The court determined that Osterman and Zamberletti owed Ko-rey Stringer a personal duty because they were both directly engaged in Stringer’s care and treatment and their actions did not involve general workplace safety. Id. at 550-51. The court analogized the situation to circumstances when an ordinary person takes charge of or controls circumstances, thereby creating an affirmative duty to provide care. Id. at 551.
Though finding a personal duty, the court of appeals did not conclude that Ost-erman’s or Zamberletti’s actions were grossly negligent because the two men had taken some actions to care for Stringer. Id. at 552. The court said, “[rjespondents’ actions may reflect poor judgment or lack of reasonable care, but there is no basis to conclude that respondents disregarded the risk to Stringer altogether in a manner ‘equivalent to a willful and intentional wrong.’ ” Id.
Kelci Stringer petitioned for review on the issue of whether Osterman and Zam-berletti were grossly negligent. Osterman and Zamberletti sought cross-review of the issue of whether they owed Korey Stringer a personal duty. We granted both requests for review.
I.
Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Odenthal v. Minn. Conf. of Seventh-Day Adventists, 649 N.W.2d 426, 429 (Minn.
Workers’ Compensation Background
To provide the necessary context to our analysis, we begin with a brief summary of Minnesota’s workers’ compensation system. This system is based on a compromise between employees and employers and involves “a mutual renunciation of common law rights and defenses by employers and employees alike.” Minn. Stat. § 176.001 (2004); see also Foley v. Honeywell, Inc., 488 N.W.2d 268, 271 (Minn.1992). Under the workers’ compensation statutory scheme, the employer “is liable to pay compensation in every case of personal injury or death of an employee arising out of and in the course of employment without regard to the question of negligence.” Minn.Stat. § 176.021, subd. 1 (2004). The employer’s liability to pay compensation “is exclusive and in the place of any other liability.” Minn.Stat. § 176.031 (2004). Under this scheme, an employee is precluded from bringing a tort action for damages against the employer.
But an injured employee or the employee’s personal representative may, under certain limited circumstances, bring an action in tort against a eoemployee for the latter’s gross negligence. Wicken v. Morris, 527 N.W.2d 95, 98 (Minn.1995). Minnesota Statutes § 176.061, subd. 5(c) (2004), specifically provides:
A coemployee working for the same employer is not liable for a personal injury incurred by another employee unless the injury resulted from the gross negligence of the coemployee or was intentionally inflicted by the coemployee.
The term “coemployee” includes a “corporate officer, general supervisor, or foreman.” Dawley v. Thisius, 304 Minn. 453, 455, 231 N.W.2d 555, 557 (1975). In Wick-en, we stated that, to establish a gross negligence claim against a coemployee, the injured employee must show:
1. the coemployee had a personal duty toward the employee, the breach of which resulted in the employee’s injury, and that the activity causing the injury was not part of the coem-ployee’s general administrative responsibilities; and
2. the injury arose from gross negligence on the part of the coemployee.
Wicken, 527 N.W.2d at 98.
The first prong of the test we adopted in Wicken was first articulated in Dawley, a 1975 case that involved a wrongful death action against a company’s general manager. 304 Minn. at 455, 231 N.W.2d at 557. The second prong of the test is based on a 1979 amendment to the workers’ compensation statute. The 1979 amendment added language to Minn.Stat. § 176.061, subd. 5(c), and bars coemployee liability except where the coemployee has been grossly
Personal Duty Requirement
With the foregoing background, the next step in our analysis is to determine whether the district court erred when it granted summary judgment for the respondents on the issue of whether the respondents owed Korey Stringer a personal duty. The presence of a duty is a question of law that we review de novo. Wong v. American Fam. Mut. Ins. Co., 576 N.W.2d 742, 745 (Minn.1998).
In Dawley, we adopted the requirement of a personal duty to overcome coemployee immunity in the context of a wrongful death action against the company’s general manager. Dawley was a worker at a sheet metal company who died after he fell into a tank filled with a caustic detergent solution. 304 Minn, at 454, 231 N.W.2d at 556. The plaintiff in Dawley, the deceased worker’s estate, sued the company’s general manager asserting that the manager had “general overall responsibility for the day-to-day operation” of the company. Id. at 454, 231 N.W.2d at 556-57. We determined that the plaintiffs allegation that the supervisor had a general duty to provide a safe place to work was insufficient to show that the supervisor owed a personal duty to the deceased worker. Id. at 456, 231 N.W.2d at 558. We then stated that a coemployee will have no personal liability “because of his general administrative responsibility for some function of his employment without more.” Id. at 456, 231 N.W.2d at 557.
A critical concept underlying our holding in Dawley was the preservation of the compromise struck in the workers’ compensation statute balancing certain, but limited, benefits provided to employees injured in the course of their employment
In Wicken, we applied Dawley and required that for a coemployee to be liable for his or her acts of negligence to a coemployee, he or she must breach a duty based on personal fault, which is something different from the coemployee’s “general administrative responsibility for some function of his employment.” Wicken, 527 N.W.2d at 98. Like Dawley, Wick-en also involved an action against a company manager for acts that had not been directed at any specific employee. We concluded that a manager, who made false statements in applying for a DNR permit in order to burn explosive material, did not owe a personal duty to the workers who were killed by a resulting explosion. We said that the permit application did not create a personal duty because it was not directed toward the injured employees, but “was an administrative activity required as an integral part of [the coemployee manager’s] employment obligations.” Id. at 99. We also stated, “[t]o hold otherwise, permitting co-employee liability when harm results however indirectly from the carrying out of administrative obligations incident to work responsibilities would eviscerate the fundamental purpose of the workers’ compensation laws.” Id.
The Dawley and Wicken holdings are a bit difficult to apply to the facts before us because the two earlier cases do not address the situation where the coemploy-ee’s responsibilities involve direct contact with a coemployee, as is the situation here. In both Dawley and Wicken, the defendants held managerial positions and their acts had broad impact within the company. Because the facts of Dawley and Wicken involved duties not directed toward a specific person, we did not discuss whether “general administrative responsibility” meant only duties of general impact on all employees or whether it also includes carrying out work duties, regardless of whether the work duties involve direct contact with a coemployee, as the respondents contend. Nor did we discuss specifically whether the personal duty requirement applied only to managers, supervisors, or officers. Here, the parties do not dispute that coemployees — Oster-man and Zamberletti — took direct action toward Korey Stringer; but they disagree on whether the coemployees’ direct action was sufficient to create a personal duty.
Kelci Stringer contends that Osterman’s and Zamberletti’s direct actions toward Korey Stringer created a personal duty owed to him. She argues that Dawley and Wicken distinguish between “actions taken by an employee that have broad and general impact on all fellow employees” (general administrative responsibilities) and “direct, personal actions that a particular employee takes with respect to a particular co-employee.” According to Kelci String
The respondents argue that an administrative responsibility is any task performed in the scope of one’s employment and that performance of such a task cannot create a personal duty. They assert that administrative responsibilities are those duties carried out by employees— and Osterman and Zamberletti were only carrying out their required work duties when they attempted to help Korey Stringer. Respondents assert that Kelci Stringer’s argument that direct contact with the injured employee creates a personal duty would serve to protect those who devise policy, but would leave defenseless those who carry it out. They further claim that the standard of personal duty asserted by Kelci Stringer would thwart the goals of the workers’ compensation system and significantly expand coemploy-ee liability. They contend that a personal duty arises only when the coemployee departs from his or her employment responsibilities and voluntarily assumes additional duties that put another employee at risk.
We conclude that neither Kelci Stringer nor the respondents have articulated the correct test for overcoming coemployee immunity. Rather, each has articulated only a portion of the test. Our holdings in Dawley and Wicken are clear that direct action toward the injured employee is required before a personal duty is created. Dawley, 304 Minn, at 456, 231 N.W.2d at 557 (“[t]he acts of negligence for which a co-employee may be held liable must be acts constituting direct negligence toward the plaintiff, tortious acts in which he participated, or which he specifically directed others to do”); Wicken, 527 N.W.2d at 98-99. But direct contact alone is insufficient; the employee whose job involves direct contact with others should not bear inordinate risk for coemployee liability for the simple fact of his chosen employment or assigned duties. Therefore, we also stated “personal liability * * * will not be imposed on a co-employee because of his general administrative responsibility for some function of his employment without more.” Wicken, 527 N.W.2d at 98.
Our holdings in Dawley and Wick-en have in essence created a two-prong test which must be met before a coemploy-ee has undertaken a personal duty to a coemployee. To have a personal duty to the injured employee, the coemployee must have (1) taken direct action toward or have directed another to have taken direct action toward the injured employee, Dawley, 304 Minn, at 456, 231 N.W.2d at 557, and (2) acted outside the course and scope of employment, see Wicken, 527 N.W.2d at 98. This personal duty applies to all coemployees and we do not distinguish between managers, supervisors, or officers and other coemployees in the requirement of a personal duty. We see no reason to treat them separately.
We did not use the specific phrase “course and scope of employment” in either Dawley or Wicken; therefore, it is important at this point in our analysis that we elaborate on why we conclude that a personal duty necessarily contemplates that the coemployee must have acted outside of his or her course and scope of employment. In Wicken, we said a coem-ployee does not owe a personal duty based on a “general administrative responsibility for some function of his employment without more.” Wicken, 527 N.W.2d at 98. We also stated that the DNR permit application in Wicken “was an administrative activity required as an integral part of [the manager’s] employment obligations.” Id. at 99. “Scope- of employment” is. defined as “the field of action in which a servant is authorized to act in the master-servant relationship.” Black’s Law Dictionary 1374 (8th ed.2004). “Course of employment” refers to “[e]vents that occur or circumstances that exist as a part of one’s employment; esp., the timé during which an employee furthers an employer’s goals through employer-mandated directives.” Id. at 378. Under the workers’ compensation system, we have said that course of employment refers to the time, place, and circumstances of the incident causing the injury. Gibberd by Gibberd v. Control Data Corp., 424 N.W.2d 776, 780 (Minn.1988).
We conclude that, while we did not use the specific phrase, “course and scope of employment” under the facts of either Dawley or Wicken, we articulated essentially the same concept when we spoke of the coemployee’s “administrative activity required as an integral.part of * .* * employment obligations” or “administrative obligations incident to work responsibilities,” Wicken, 527 N.W.2d at 99, and the “general administrative responsibility for some function of * * * employment,” Dawley, 304 Minn, at 456, 231 N.W.2d at 557. We discussed the specific term “administrative” in Dawley and Wicken because the facts of both of those cases involved administrative responsibilities of coemployee managers. But our stated concerns in Wicken included that the coemployee not be held personally liable for decisions he was required and authorized to make as part of his job and that we “[maintain] the integrity of the compromise between employers and employees” under workers’ compensation. Wicken, 527 N.W.2d at 99. Thus, the relevant issue is not whether the personal duty requires us to explain the meaning of the term “administrative,” but rather whether any articulation of what constitutes a personal duty would upset the purposes of the workers’ compensation system to fairly and fully compensate the meritorious injury claim. See Dawley, 304 Minn, at 455-56, 231 N.W.2d at 557; Wicken, 527 N.W.2d at 99; see also Franke v. Fabcon, Inc., 509 N.W.2d 373, 376 (Minn.1993). Acting within the course and scope of employment is what brings the coemployee within the protection of the workers’ compensation system.
We acknowledge the concerns raised by the dissent. We share some of these concerns and have considered them carefully; but we conclude that the dissent’s analysis ultimately fails because it does not sufficiently answer the question on personal duty that is before us in light of our case law and the purposes of the workers’ compensation scheme. When the dissent asserts that a course and scope of employment test is an incorrect reading of personal duty, it relies significantly on
The issue in Behr, however, was whether the plaintiff, a coemployee/common en-terpriser, was precluded from seeking damages from the defendant because he had already elected to receive workers’ compensation benefits. Id. at 286-87, 212 N.W. at 463. Under the statute then in effect, the plaintiff could either seek compensation from his employer or pursue the coemployee/common enterpriser in tort. Id. at 284, 212 N.W. at 463. The dissent’s assertion that Behr rejected a course and scope of employment test for personal duty is far too broad a reading for a case that discusses neither personal duty nor whether the defendant could have been liable under the facts of that case. Reliance by the dissent on the tangential analysis in Behr cannot overcome the fact that we adopted the concept of a personal duty in a subsequent case, Dawley, and then rearticulated that concept in Wicken, and those two cases are the cases on which our analysis must be based.
Moreover, when the legislature passed the 1979 amendments to add a gross negligence requirement, it was silent as to Dawley ⅛ requirement that a coemployee have a personal duty to an injured coem-ployee to be liable for tort damages. The dissent concedes that the legislature was silent and acknowledges that the personal duty requirement is applicable here. Given that the legislature took no action to
In our analysis, we are striving to be true to our precedent and to our rules of construction when we apply Dawley and Wicken to the facts of this case. The dissent’s analysis strays from this objective. For example, the dissent asserts that key language in Dawley and Wick-en — that a coemployee is not liable for a “general administrative responsibility for some function of his employment” — is not relevant here; but when it adopts this approach, it overlooks key concerns from these two cases that a coemployee not be held personally liable for required and authorized decisions and that we maintain the workers’ compensation compromise. See Wicken, 527 N.W.2d at 99. Finally, the dissent’s test, which only requires a direct act toward the injured employee for coemployee liability, fails because it would serve to protect coemployee managers with duties of general impact on a company while increasing the vulnerability of employees whose duties include direct contact with their coemployees.
We conclude that adopting a course and scope of employment prong is compatible with the purposes of the workers’ compensation system. See Minn.Stat. §§ 176.001; 176.021, subd. 1; see also Franke, 509 N.W.2d at 376 (stating that “[workers’ compensation * * * is social legislation, providing a measure of security to workers injured on the job, with the burden of that expense considered a proportionate part of the expense of production.”). While other jurisdictions have not framed coemployee immunity in terms of a personal duty, we conclude that requiring a showing that the coemployee has acted outside of the course and scope of employment before liability will be imposed is the better approach. Moreover, our approach aligns with holdings on coemployee immunity from certain other jurisdictions that have specifically addressed this issue. See, e.g., Meade v. Ries, 642 N.W.2d 237 (Iowa 2002); Brooks v. Carter, 102 Ill.App.3d 635, 58 Ill.Dec. 534, 430 N.E.2d 566 (1981); Jackson v. Hutchinson, 453 S.W.2d 269 (Ky.Ct.App.1970); Daus v. Marble, 270 N.J.Super. 241, 636 A.2d 1091 (App.Div.1994).
When determining coemployee immunity, we conclude that course and scope of employment should have the same meaning as the course and scope of employment test used to determine whether an employee qualifies for workers’ compensation benefits. We note that applying the same test to both the determination of qualification for benefits and coemployee immunity allows for greater uniformity in the application of the workers’ compensation statute. Larson refers to using the workers’ compensation benefit test as “more satisfactory” than using the scope of employment test used to determine vicarious liability under respondeat superi- or. 6 Arthur Larson and Lex K. Larson, Larson’s Workers’ Compensation Law, § 111.03(3), at 111-15 (2003).
Did Osterman and Zamberletti owe Korey Stringer a Personal Duty ?
We must now apply the two-prong personal duty test to determine whether Osterman and Zamberletti (1) took direct action toward or directed another to take direct action toward Stringer and (2) acted outside the course and scope of their employment. Application of this test will enable us to determine whether summary
Under the second prong of the test, Osterman and Zamberletti must have been acting within their authorized course and scope of employment to not owe a personal duty to Korey Stringer. When an employee engages in acts exceeding his authorization, including the violation of an instruction or a rule, he is acting outside the course and scope of his employment. Bartley v. C-H Riding Stables, Inc., 296 Minn. 115, 117, 206 N.W.2d 660, 662 (1973) (denying workers’ compensation benefits to employee thrown from a horse he was instructed not to ride); see also Lange v. Mpls.-St. Paul Metro. Airports Comm’n, 257 Minn. 54, 57, 99 N.W.2d 915, 918 (1959). In Lange, we distinguished between the performance of authorized acts in a prohibited manner and the performance of prohibited acts. Id. at 57, 99 N.W.2d at 918. We explained that the performance of prohibited acts is outside the scope of employment and does- not come within the protection of the statute. Id. at 57, 99 N.W.2d at 918.
We have held that an activity not explicitly within the employee’s defined duties can nevertheless be related to the employee’s duties if the work is in “furtherance of the employer’s business.” Ramczik v. Winona Mach. & Foundry Co., 174 Minn. 156, 158, 218 N.W. 545, 545 (1928).
In this case, Osterman and Zamberletti were employed by the Vikings to provide
The record provides information about Osterman’s degree program to become an athletic trainer, including training he received on recognizing the signs and symptoms of heat emergencies. The job description for Zamberletti as Coordinator of Sports Medicine includes the following as Zamberletti’s job duties for the period from January 1999 through January 15, 2002: on-field rehabilitation of players classified physically unable to play and conditioning of developmental and injured reserved players. The record indicates that Zamberletti has been certified as an athletic trainer since 1970 and has been employed with the Vikings since 1961. We also note that the Vikings’ Athletic Training Intern Handbook states, “Realize your limitations — never make an assessment. All assessments on players will be done by Chuck [Barta], Fred [Zamberletti], or Dr. Fischer.”
Here, Osterman’s and Zamberletti’s obligations to Stringer directly resulted from their employment by the Vikings and the Vikings’ efforts to provide a safe workplace for their players. The record shows that the purpose for employing trainers was to protect the health and safety of the players. The Vikings required at least one trainer to remain on the field until the last player finished with practice. While on the field, the trainers’ duties included monitoring practice, providing players with water, and evaluating and treating player injuries. Osterman’s and Zamberletti’s actions with respect to Stringer conformed with these duties. Osterman testified that while he thought Stringer was “doing fine,” he did take Stringer to the air-conditioned trailer as a “preventive” measure. While in retrospect we may want or expect that Osterman and Zamberletti would have responded to Stringer’s condition differently, they nonetheless were acting within their scope of employment, and any duty they had toward Stringer did not exist absent their employment status.
We recognize that any time medical attention or care is involved, a great deal of trust is placed in the discretion of the caregiver. Caregivers must not exceed the level of care they are trained and authorized to provide. Those who provide health care services must realize their limitations and those who provide health care services must not make decisions or take actions they are not qualified to make. But we also want those who provide health care services to be able to perform their duties and respond to emergencies without unduly worrying about being subject to personal liability for their acts. We also acknowledge that in this context the course and scope of employment may be difficult to ascertain, especially when em
II.
Having decided that the district court properly granted summary judgment for the respondents under the personal duty requirement, we need not address whether the district court properly granted summary judgment for the respondents based on gross negligence; therefore, we decline to address this issue.
Affirmed.
. Kelci Stringer brought the suit against the Minnesota Vikings, several Vikings employees, and several Vikings physicians. The district court dismissed the counts against most of the defendants. In this appeal, only the Minnesota Vikings Football Club, LLC; Fred Zamberletti, coordinator of medical services; Charles (Chuck) Barta, head athletic trainer; and Paul Osterman, assistant athletic trainer, remain as respondents and, of these, Kelci Stringer states that she now presents only one claim of gross negligence against Zamberletti and Osterman.
. Following briefing, but before the scheduling of oral argument, respondent Chuck Bar-ta submitted a motion requesting his dismissal from this appeal on the ground that Stringer had raised no issue as to Barta that could possibly result in reversal of the court of appeals’ decision affirming summary judgment in Barta's favor. Stringer opposed the motion and we deferred action on the motion until this case was resolved. In light of the decision reached in this case, we deny Bar-ta’s motion on the ground that it is now moot.
. At the time of Korey Stringer's death, Oster-man was not certified or registered as an athletic trainer although he had completed a 4-year degree program, testing, and other requirements for certification and registration. Paul Osterman was certified as an athletic trainer on August 31, 2001, and registered with the Minnesota Board of Medical Practice as of January 12, 2002.
. Team members were instructed to weigh themselves in the morning before practice and in the afternoon after practice. No monitoring was done to ensure that they weighed themselves as requested or that they weighed themselves out of their uniforms. Stringer’s weight chart showed that his weights during the camp were as follows: July 30 a.m. — 336 pounds; July 30 p.m. — 330 pounds; July 31 a.m. — 332 pounds. Barta said that he considered Stringer’s two-pound weight gain overnight to be acceptable for Stringer to practice.
.The Minnesota Department of Labor and Industry (MDLI) inspected the Mankato training facility and the Vikings’ safety provisions that were in place on July 30 and 31, 2001. The MDLI concluded that "no provisions of the Minnesota Occupational Safety and Health Act or its standards were violated by the Vikings during July 30 and 31, 2001.” The MDLI did nevertheless make some recommendations to the Vikings "for reducing and monitoring the effects of heat and humidity on players."
. ■ Respondents acknowledge that a total of 11 Vikings players were treated for heat-related illnesses on July 31, 2001.
. Included in the record are articles written about heat stroke. According to one article, heat exhaustion is associated with heavy sweating. Another article, written by one of the respondents’ experts, states that vomiting can be an early warning sign of impending heat stroke.
. According to Osterman, it was important that Korey Stringer’s skin was cool and mojst because from his training he learned that a person who was suffering from heat stroke would have hot and dry skin. We note from information in the record, however, that chills and moist skin can be a symptom of heat exhaustion. Dizziness, weakness, and vomiting can also be warning signs of impending heat stroke. Moreover, while hot and dry skin can be a symptom of heat stroke, it is not the only symptom. Other symptoms 'can include fever, confusion, rapid and shallow breathing, an abnormally fast heart rate, vomiting, seizures^ and unconsciousness.
. Osterman's testimony differs from Zamber-letti’s on the timing of the phone calls and Osterman's leaving the trailer. According to Zamberletti, Osterman was inside the trailer during the treatment with the Ziploc bag. Zamberletti also testified that he told Oster-man to call for the van before he told him to call Knowles. Osterman, however, testified that Zamberletti told him to leave in order to call Knowles before Kearney performed the Ziploc bag treatment.
. Osterman’s and Zamberletti's testimony differs on which of them had the idea for Osterman to call an ambulance. Osterman said that he first thought to call an ambulance before Knowles called back, but Zamberletti stated that he told Osterman to call an ambulance after Zamberletti returned to the trailer after speaking with Knowles.
. The court of appeals also held that Barta did not owe Korey Stringer a personal duty based on the court’s conclusion that Barta’s actions "arose out of his employer's nondele-gable duty to ensure safe work conditions.” 686 N.W.2d at 551.
. There is one exception to an employer’s immunity from tort actions under workers' compensation, which allows the employee to sue his or' her employer if the employer has willfully assaulted and injured the employee (the “intentional injury exception”). Gunderson v. Harrington, 632 N.W.2d 695, 702-03 (Minn.2001).
. An employer who pays workers’ compensation benefits to an employee injured by a third party’s negligence, including the gross negligence of coemployee tortfeasor, is ordinarily entitled to bring a subrogation action against the third party and seek reimbursement for those payments. Minn.Stat. § 176.061, subd 5(a) (2004). The employer may join in a tort action brought by the employee or may bring a separate action. Id. "To the extent that coemployees are liable on the same basis as any other third persons, it follows logically that the employer can exercise subrogation rights against its own tort-feasor employee.” 6 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 111.02, at 111-4 (2003). Workers’ compensation was intended to keep the burden of loss on industry as a cost of production rather than on employees. Arens v. Hanecy, 269 N.W.2d 924, 926 (Minn.1978) (citing Eichholz v. Shaft, 166 Minn. 339, 342, 208 N.W. 18, 19 (1926)). But allowing the employer subrogation rights against the coemployee tortfeasor has the tendency to shift that burden to the coemployee. To minimize this burden shifting, the window of coemployee liability should be narrow. Subrogation rights are not at issue in the case before us.
. We recognize that the personal duty concept arose in the context of actions against a coemployee supervisor or officer. To incur . tort liability, the supervisor or officer had to be acting as a coemployee and not in his or her capacity as a corporate officer or supervisor while acting on behalf of the employer. See Gerger v. Campbell, 98 Wis.2d 282, 297 N.W.2d 183, 186 (1980) ("Only if it can be said that by [the officer’s or supervisory employee's] conduct he has changed his status from that of a supervisor to that of a co-employee will an action for common law tort lie.”). We note that we are not the only jurisdiction to eliminate the distinction between supervisory and managerial employees and other coemployees when determining
. We also note that, in Minnesota, permitting suit against a coemployee/common enter-priser had more to do with the restoration of the employee's common-law action than with holding the coemployee accountable and discouraging neglect of duties. Before 1913, an employee had a common-law tort action against a third party who was not his own employer. But the Workers’ Compensation Act, as enacted in 1913, took that action away, providing instead an election of remedies between recovery from the employer or recovery from the third party who was also subject to the Act and limiting damages to the amount fixed by the Act. O'Malley v. Ulland Bros., 549 N.W.2d 889, 893 (Minn.1996). By amendment in 1923, the legislature restored that common law action, in part, by limiting the election of remedies provision to situations in which the employer and third party, also subject to the Act, were engaged in a common enterprise. Id.; Act of April 16, 1923, ch. 279, § 1, 1923 Minn. Laws 373, 374-75 (currently codified at Minn.Stat. § 176.061, subds. 1-4).
We have held that the election of remedies provision applies to suits against coemploy-ees. Peterson v. Kludt, 317 N.W.2d 43, 49 (Minn.1982) (holding, in pre-1979 amendment case, that the election of remedies provision applies to suits against coemployees); Behr v. Soth, 170 Minn. 278, 286, 212 N.W. 461, 464 (1927) (holding that injured employee could seek compensation from the employer or from coemployee/common enterpriser but not both). It is true that in 1937 the legislature abrogated the rights of employers and employees to elect not to be bound by the Act and mandated insurance coverage for employers. Act of March 12, 1937, ch. 64, 1937 Minn. Laws 109, 111. But the legislature did not alter the basic compromise between employees and employers which contemplated, according to Behr, an election of remedies and limited recovery against common enter-prisers, including coemployees. Given that the intent of the coemployee immunity provision of 1979 was to limit coemployee liability, it is doubtful that the legislature intended any expansion of that liability by the placement of the immunity provision at the end of the cumulative remedies section, which ordinarily has application when the election of remedies provisions do not apply.
. In Ramczik, we concluded that a worker who was employed to unload scrap iron from train cars was entitled to workers' compensation benefits when he was injured while helping his coworkers lift a heavy object in the company’s foundry. Ramczik, 174 Minn, at 157-58, 218 N.W. at 545. Although the injured worker would not have been required to help with lifting in the foundry, we concluded that his attempt to help was incidental to and arising out of his employment because he was still on the employer’s premises and the work was in furtherance of the employer's business. Id. at 158, 218 N.W. at 545. We note that the additional work the injured worker undertook outside the specific scope of his employment was the same type of work for which he was employed, but in a different location in the company.
. We acknowledge that the record provides a limited description of Osterman’s and Zam-berletti’s specific duties and responsibilities and what the Vikings' organization expected of them, especially what the Vikings expected of Osterman as a new athletic trainer and of Zamberletti as the coordinator of medical service. In the future, we prefer that the record be more fully developed on such issues.