This opinion is nonprecedential except as provided by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

A23-0149

Tina Marie Lund, as conservator of the Honorable Fred Karasov,

Appellant,

vs.

Calhoun Orange, Inc. d/b/a Orange Theory Fitness Minneapolis-Uptown,

Respondent,

Ultimate Fitness Group LLC, d/b/a Orangetheory Fitness,

Respondent.

Filed December 4, 2023

Affirmed

Schmidt, Judge

Concurring in part and dissenting in part, Cleary, Judge

Hennepin County District Court

File No. 27-CV-20-12141

Colin F. Peterson, Brandon Thompson, Kathleen Flynn Peterson, Rachel L. Barrett, Ciresi 

Conlin LLP, Minneapolis, Minnesota (for appellant)

Julia J. Nierengarten, Michael D. Hutchens, Meagher & Geer, P.L.L.P., Minneapolis, 

Minnesota (for respondent Calhoun Orange, Inc.)

Theodore J. Waldeck, Jason M. Stoffel, Waldeck & Woodrow, P.A., Minneapolis, 

Minnesota (for respondent Ultimate Fitness Group LLC)

Considered and decided by Reyes, Presiding Judge; Schmidt, Judge; and 

Cleary, Judge.

∗

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to

Minn. Const. art. VI, § 10.
2

NONPRECEDENTIAL OPINION

SCHMIDT, Judge

Fred Karasov (Karasov) suffered a cardiac arrest during an exercise class and 

sustained a permanent brain injury. Appellant Tina Lund (Lund), Karasov’s wife and 

conservator, brought various claims of negligence against respondents Calhoun Orange, 

Inc. d/b/a Orange Theory Fitness Minneapolis-Uptown (Calhoun Orange) and Ultimate 

Fitness Group LLC, d/b/a Orangetheory Fitness (Ultimate Fitness). Lund challenges the 

district court’s (1) summary-judgment dismissal based on an exculpatory clause of her 

claims for negligence, medical negligence, and negligent undertaking against Calhoun 

Orange; (2) summary-judgment dismissal of her claims against Ultimate Fitness; and 

(3) denial of her motion for a new trial based on Calhoun Orange’s alleged misstatements 

of the law at trial. We affirm.

FACTS

Ultimate Fitness and Calhoun Orange

Ultimate Fitness is the parent company of Calhoun Orange and the franchisor of 

various Orangetheory Fitness studios across the United States. Calhoun Orange is a fitness 

studio operating under the name of Orange Theory Fitness. The franchise agreement 

between Ultimate Fitness and Calhoun Orange grants Ultimate Fitness control over several 

aspects of Calhoun Orange’s operations, including the location of the studio, the sale of 

Orangetheory products, advertising, and marketing.

Ultimate Fitness also provided Calhoun Orange with a business policies guide. In 

the “Health & Safety” portion of the guide, Ultimate Fitness requires every franchisee to 
3

have an automated external defibrillator (AED), a fire extinguisher, and a first-aid kit on 

the premises. Ultimate Fitness also requires that at least one person at the studio be trained 

in cardiopulmonary resuscitation (CPR) and how to properly administer an AED.

Calhoun Orange’s manager drafted its emergency protocol and noted that “a lot of 

the language from that [protocol] is pulled from Orangetheory Fitness training, from the 

franchisor[.]” The emergency protocol requires Calhoun Orange employees to fill out an 

“incident/injury report.” The document also lists several “Emergency Response 

Scenarios,” which require the staff to “call 911 immediately,” “start CPR immediately,”

and “have another staff member get the AED, bring [it] to the client and open the case.”

Karasov joins Calhoun Orange and suffers a permanent injury

When Karasov joined Calhoun Orange, he signed an intake form:

I (the “Client”) voluntarily desire to participate in 

physical exercise training classes conducted on behalf of 

Orangetheory Fitness Uptown 2640 Hennepin Avenue, 

Minneapolis, MN. 55408 and understand [sic] agree to the 

following[:]

. . . .

4. Client has been informed that any fitness program 

includes possible risks and all exercises shall be undertaken at 

Client’s sole risk and discretion. Client assumes full 

responsibility for any and all damages, injuries or losses that 

may be sustained or incur, if any, while participating in any 

studio exercise program or physical activity. Client hereby 

waives all claims against the Studio, the Facility, the Studio 

instructors, officers, directors, employees or agents of either 

and/or any successor assigns or and all claims, demands, 

injuries, damages, actions or causes of action, whatsoever to 

my person or property arising out of or connected to the 

services, facilities, exercise classes, or the facility where same 

is located (including the Studio and/or the Facility, as 
4

applicable). Client hereby agrees to indemnify[,] defend, hold 

harmless, release and discharge the Studio and Facility from 

all claims, demands, injuries, damage actions [sic] causes of 

action and from all acts of active or passive negligence on the

part of the Studio, the Facility, the Studio instructors, their 

servants, agents, employees, and/or any successors and 

assigns, whatsoever, for any damages, injuries or losses that 

may be sustained by the Client arising from or in connection 

with the activities that Client voluntarily participates, including 

without limitation, attorney’s fees, costs, and expenses of any 

litigation, arbitration or other proceeding.

On September 7, 2019, Karasov attended a workout class at Calhoun Orange and

collapsed approximately 60 minutes into the 90-minute class. A class participant noticed 

the collapse and alerted M.B., the Calhoun Orange trainer. M.B. was certified and trained 

in CPR and how to properly administer an AED. M.B. yelled “[s]omebody grab the AED 

and someone call 911.” Another Calhoun Orange employee brought the AED into the 

workout classroom, and someone called 911.

After Karasov collapsed, two class participants—a nurse practitioner and a 

registered nurse—began performing CPR and pulse checks. The Calhoun Orange 

employee placed the AED on the ground near Karasov but did not inform the nurses that 

the AED had arrived. The AED was not used by a Calhoun Orange employee or the nurses. 

When the paramedics arrived approximately 15 minutes later, they took over 

resuscitation efforts. The paramedics applied the AED and, after one shock, resuscitated 

Karasov. The paramedics transferred Karasov to the Hennepin County Medical Center for 

further care. By that time, Karasov had suffered a permanent brain injury. The injury 

requires lifelong medical and rehabilitative home care, home care, and equipment.
5

Lawsuit and summary judgment orders

Following the injury, Lund sued Calhoun Orange, alleging (1) negligence, 

(2) willful and wanton negligence, (3) negligent undertaking, (4) medical negligence, and 

(5) deceptive-trade practices.

1

 The district court later allowed Lund to amend the 

complaint to add Ultimate Fitness. Lund alleged Ultimate Fitness, as the franchisor, should 

be vicariously liable for the actions of Calhoun Orange and its employees.

Calhoun Orange moved for summary judgment, arguing the exculpatory clause in 

the intake form barred Lund’s claims. The district court granted summary judgment as to 

Lund’s claims for negligence, negligent undertaking, and medical negligence, but denied 

summary judgment as to Lund’s willful and wanton negligence claim.

Ultimate Fitness moved for summary judgment on Lund’s vicarious-liability claims 

under the theories of apparent authority, respondeat superior, and joint enterprise. The 

district court granted the entire motion and dismissed Ultimate Fitness from the lawsuit.

Trial

Lund proceeded to trial on her remaining claim for willful and wanton negligence 

against Calhoun Orange. During the opening statement, Calhoun Orange’s counsel told 

the jury, “By the way[,] this is not a negligence claim. The claim in this case is willful and 

wanton negligence[,] which is a much higher burden on the plaintiffs . . . .” Lund objected 

and requested a curative instruction regarding the definition of willful and wanton 

negligence. The district court reserved ruling until the following day. After discussing the 

1 Lund elected to forgo her deceptive trade practices claim at trial.
6

issue with the attorneys at length, the district court noted that both attorneys had used 

specific legal terms in their opening statements. The district court then instructed the jury 

to disregard each party’s comments on the legal standards that apply to the case and that 

the court would provide instructions on the law that applies to the case. 

During closing arguments, Calhoun Orange’s counsel stated: “[B]ut if you think of 

the normal definitions of willful and wanton, you know, conjures up intentional, deliberate, 

indifference, don’t care. Did you see any of that through [M.B.’s] testimony? Absolutely 

not.” Lund made an objection, which the district court overruled. 

Following closing arguments, the district court instructed the jury, “To the extent 

you believe the attorney’s discussions of the legal standards differed from the instructions 

I gave you, you should disregard the attorney[’s] comments and follow my instructions.” 

After deliberation, the jury returned a verdict for Calhoun Orange.

Based on Calhoun Orange’s alleged misstatements of the law, Lund moved for a 

new trial, arguing counsel’s remarks in opening statements and closing argument 

constituted misconduct. The district court denied Lund’s motion, determining that the 

court’s repeated instructions to the jury cured any prejudice. 

After the posttrial motion hearing, Lund filed a letter with the district court arguing 

that the recent decision in Justice v. Marvel, 979 N.W.2d 894, 902 (Minn. 2022), is relevant 

to the new-trial motion. In denying the motion, the district court disagreed that Justice had 

relevance to Lund’s motion because the only basis for the new trial motion was counsel’s 

“alleged misstatements of the law . . . in opening and closing statements.” 

This appeal follows.
7

DECISION

I. The district court properly granted summary judgment on Lund’s negligence 

claims.

Lund argues that the Minnesota Supreme Court’s decision in Justice requires this 

court to reverse the district court’s summary-judgment order on her negligence claims. We 

review a grant of summary judgment de novo. Franklin v. Evans, 992 N.W.2d 379, 384 

(Minn. 2023). In doing so, we determine whether the district court correctly applied the 

law and whether any genuine issues of material fact preclude summary judgment. Id.

The law disfavors exculpatory and indemnification clauses. Schlobohm v. Spa 

Petite, Inc., 326 N.W.2d 920, 923 (Minn. 1982). Clauses that exonerate a party from 

liability are strictly construed against the benefitted party. Id. An exculpatory clause that 

purports to release a party from intentional, willful, or wanton acts or is ambiguous in scope 

will not be enforced. Id.

In granting summary judgment, the district court relied on this court’s decision in 

Justice v. Marvel, in which we held the exculpatory clause’s purported release of “any and 

all claims” was overly broad. 965 N.W.2d 335, 347-48 (Minn. App. 2021), rev’d,

979 N.W.2d 894 (Minn. 2022). We held, however, that the clause was enforceable to the 

extent the plaintiff asserted a claim of ordinary negligence but unenforceable against claims 

of “greater-than-ordinary negligence.” Id.

In reversing, the Minnesota Supreme Court clarified that “[t]o withstand strict 

construction . . . an exculpatory clause ‘must use specific, express language that clearly 

and unequivocally states the contracting parties’ intent,’ regardless of whether the 
8

provision ‘is so broad that it necessarily includes the [released party’s] own negligence.’” 

Justice, 979 N.W.2d at 901-02 (quoting Dewitt v. London Rd. Rental Ctr., Inc., 

910 N.W.2d 412, 417 (Minn. 2018) (internal quotations omitted)). The supreme court held 

that the waiver at issue did not “specifically provide that it released Marvel from liability 

for its own negligent acts.” Id. at 902. 

In ruling on Calhoun Orange’s summary judgment motion, the district court did not 

have the benefit of the Minnesota Supreme Court’s decision. The district court—relying 

on this court’s decision upholding a waiver—dismissed Lund’s negligence claims based 

upon the following clause:

4. . . . . Client hereby waives all claims against the 

Studio, the Facility, the Studio instructors, officers, directors, 

employees or agents of either and/or any successor assigns or 

and all claims, demands, injuries, damages, actions or causes 

of action, whatsoever to my person or property arising out of

or connected to the services, facilities, exercise classes, or the 

facility where same is located (including the Studio and/or the 

Facility, as applicable).

We agree with Lund that, after the Minnesota Supreme Court’s decision in Justice,

the above language cannot release Calhoun Orange from liability for its own negligence. 

This clause, strictly construed, fails to mention Calhoun Orange’s own negligence and,

instead, attempts to release Calhoun Orange from “all claims.” While the language could 

technically encompass claims for negligence, it fails to specifically and clearly state the 

parties’ intent to release Calhoun Orange from liability for its own negligence as the 

supreme court required in Justice. See 979 N.W.2d at 901-03.
9

Although the sentence within paragraph 4 that the district court relied upon to grant 

summary judgment is unenforceable to release Calhoun Orange from its own negligence,

2

we “may affirm a grant of summary judgment if it can be sustained on any grounds.” 

Doe v. Archdiocese of St. Paul, 817 N.W.2d 150, 163 (Minn. 2012); see also 

Winkler v. Magnuson, 539 N.W.2d 821, 827 (Minn. App. 1995) (stating a district court’s 

summary-judgment order may be affirmed if the decision is correct on other grounds). 

Paragraph 4 of the intake form, when read in its entirety, states:

Client has been informed that any fitness program 

includes possible risks and all exercises shall be undertaken at 

Client’s sole risk and discretion. Client assumes full 

responsibility for any and all damages, injuries or losses that 

may be sustained or incur, if any, while participating in any 

studio exercise program or physical activity. Client hereby 

waives all claims against the Studio, the Facility, the Studio 

instructors, officers, directors, employees or agents of either 

and/or any successor assigns or and all claims, demands, 

injuries, damages, actions or causes of action, whatsoever to 

my person or property arising out of or connected to the 

services, facilities, exercise classes, or the facility where same 

is located (including the Studio and/or the Facility, as 

applicable). Client hereby agrees to indemnify [sic] defend, 

hold harmless, release and discharge the Studio and Facility 

from all claims, demands, injuries, damage actions [sic] causes 

of action and from all acts of active or passive negligence on 

the part of the Studio, the Facility, the Studio instructors, their 

servants, agents, employees, and/or any successors and 

2 At the summary judgment stage, the parties only focused on one sentence within 

paragraph 4 of the intake form. On appeal, the parties dispute the effect of the entire 

language of paragraph 4. Although we could remand to the district court to consider the 

parties’ developing arguments in the first instance, we choose to address the purely legal 

issue now rather than remand to the district court and further prolong this litigation. See 

Harms v. Indep. Sch. Dist. No. 300, 450 N.W.2d 571, 577 (Minn. 1990) (“An appellate 

court may decide an issue not determined by a trial court where that question is decisive of 

the entire controversy and where there is no possible advantage or disadvantage to either 

party in not having a prior ruling on the question.”).
10

assigns, whatsoever, for any damages, injuries or losses that 

may be sustained by the Client arising from or in connection 

with the activities that Client voluntarily participates, including 

without limitation, attorney’s fees, costs, and expenses of any 

litigation, arbitration or other proceeding.

(Emphasis added.)

The parties disagree as to whether the emphasized language acts as an indemnity or 

an exculpatory clause. But the clause’s characterization does not change our analysis 

because both indemnity and exculpatory clauses are strictly construed. See Schlobohm, 

326 N.W.2d at 923 (holding that exculpatory clauses are strictly construed against the 

benefited party); Dewitt, 910 N.W.2d at 416 (“[W]e strictly construe . . . indemnity 

clauses.”). We also note that, even if the clause is definitionally an indemnity clause, the

result would be the same. See Justice, 979 N.W.2d at 901 (“an indemnification clause 

shifts liability ‘back to the injured party, thus producing the same result as an exculpatory 

provision’”) (quoting 57A Am. Jur. 2d Negligence § 43 (2022)). We conclude that the 

emphasized language, strictly construed, meets the requirements from the supreme court’s 

decision in Justice—the waiver “specifically provide[s] that it released [Calhoun Orange] 

from liability for its own negligent acts.” 979 N.W.2d at 902. 

Notably, the Minnesota Supreme Court distinguished the broad waiver that did not 

release the party’s own negligence in Justice with waivers in other cases that had specific 

language that released the party from its own negligence. See 979 N.W.2d at 902 (citing 

Schlobohm, 326 N.W.2d at 922 and Anderson v. McOskar Enters., 712 N.W.2d 796, 799 

(Minn. App. 2006)). In Schlobohm, the supreme court enforced strikingly similar waiver 
11

language as in Calhoun Orange’s intake form. 326 N.W.2d at 922. The relevant portion 

of the waiver in Schlobohm read:

member does hereby expressly forever release and discharge 

the said Spa Petite from all such claims, demands, injuries, 

damages, actions or causes of action, and from all acts of active 

or passive negligence on the part of such company, 

corporation, club, its servants, agents, or employees.

Id. at 922 (emphasis added). The supreme court upheld the exculpatory clause as 

exonerating Spa Petite from negligence. Id. at 926. 

Paragraph 4 in Calhoun Orange’s client intake form includes the exact same

language as Schlobohm, namely: “all acts of active or passive negligence[.]” Since 

Schlobohm remains good law,

3 we conclude that paragraph 4, as a whole, withstands strict 

construction as it “clearly and unequivocally” states the parties’ intent to release Calhoun 

Orange from its own acts of negligence. See Justice, 979 N.W.2d at 902. Because the 

clause is enforceable, we affirm—though on different grounds—the district court’s order 

granting summary judgment as to Lund’s negligence claims against Calhoun Orange. 

II. The district court properly granted summary judgment to Ultimate Fitness.

Lund argues that the district court erred in granting summary judgment for Ultimate 

Fitness on her claims for direct and vicarious liability based on the doctrines of apparent 

authority, respondeat superior, and joint enterprise. We review the grant of summary 

judgment de novo to determine whether there are genuine issues of material fact and 

3 Because the supreme court did not overrule Schlobohm and, instead, distinguished the 

waiver in that case from the one in Justice, we decline to address the parties’ arguments 

regarding whether the supreme court’s decision in Justice applies retroactively or 

prospectively.
12

whether the district court erred in its application of the law. Franklin, 992 N.W.2d at 384.

We view the evidence in the light most favorable to the nonmoving party. Id.

A. Apparent authority

Lund argues that the district court erred in granting summary judgment for Ultimate 

Fitness on Lund’s negligence claims based upon apparent authority, contending the district 

court imposed a standard of affirmative reliance. Under the doctrine of apparent authority, 

a principal is vicariously liable for the actions of the agent when (1) the principal either 

“held the agent out as having authority or knowingly permitted the agent to act on its 

behalf,” and (2) the plaintiff relied upon the apparent authority. Popovich v. Allina Health 

Sys., 946 N.W.2d 885, 895 (Minn. 2020) (quotations omitted).

The sole dispute before this court is whether knowledge alone satisfies the reliance 

prong. The supreme court in Popovich stated that “reliance” means “the plaintiff was 

aware of [the] representations of authority by the principal.” Id. Lund contends the court’s

language means that knowledge alone satisfies the reliance prong. We disagree.

In Popovich, a medical-malpractice action, the supreme court addressed the 

application of apparent authority to hospitals and their independently contracted-for 

doctors. Id. at 890. Read in isolation, the sentence from Popovich seemingly equates 

knowledge with reliance. But the supreme court’s full opinion holds that something more 

than mere knowledge is required. The supreme court held:

“[R]eliance” focuses on the beliefs of patients and considers 

whether the patient looked to the hospital, rather than to a 

particular doctor, to provide care. Specifically, the fact-finder 

should determine if the plaintiff relied on the hospital to select 

the physician and other medical professionals to provide the 
13

necessary services. This reliance standard reflects the reality 

that most people who go to the emergency room do not know 

which medical professionals will treat them once they arrive. 

Instead, they rely on the hospital to select the professionals for 

them.

Id. at 898 (footnotes omitted). Popovich does not limit the analysis of reliance to the 

plaintiff’s knowledge. Id. Instead, the supreme court instructed fact-finders to determine 

whether a plaintiff relied on the hospital to select a physician and other medical 

professionals to provide care. Id.

A review of pre-Popovich Minnesota caselaw confirms that knowledge alone cannot

satisfy the reliance prong. See, e.g., Bloomingdale v. Cushman, 159 N.W. 1078, 1080 

(Minn. 1916) (“[O]nly those who have acted in reliance upon the apparent authority of the 

agent are entitled to recover.”); Cauger v. Gray Motor Co., 217 N.W. 347, 348 

(Minn. 1928) (“The doctrine of apparent authority can be invoked only by those who had 

knowledge that the agent had been permitted to exercise such authority and who act in 

reliance thereon.”); Karon v. Kellogg, 261 N.W. 861, 862 (Minn. 1935) (“In the absence 

of knowledge on the plaintiffs’ part . . . [t]hey could not have relied on the facts unknown 

to them.”); Truck Crane Serv. Co. v. Barr-Nelson, Inc., 329 N.W.2d 824, 827 (Minn. 1983) 

(“[P]laintiff failed to establish any awareness of or reliance on it at the time the agreement 

was reached.”) (emphasis added). Each case defines knowledge as a prerequisite to 

reliance rather than defining the terms as interchangeable.4 The district court correctly 

4 This court has also applied Popivich as requiring more than mere knowledge. See, e.g.,

Rock v. Abdullah, No. A21-1716, 2022 WL 2794053, at *2 (Minn. App. July 18, 2022) 

(“The supreme court noted that its newly adopted standard ‘mirrors’ the traditional 
14

determined that “apparent authority reliance requires more than simply whether or not 

plaintiff was aware of the representations of authority by the principal.”

Lund points to no evidence, and our review of the record finds none, reflecting that 

Karasov relied on Ultimate Fitness’s representations of authority when choosing Calhoun 

Orange as his fitness studio. Because knowledge alone cannot satisfy the reliance element, 

the district court properly granted summary judgment on Lund’s apparent authority claim.

B. Respondeat superior

Lund next challenges the district court’s grant of summary judgment for Ultimate 

Fitness on Lund’s claims under the doctrine of respondeat superior. Courts impose 

vicarious liability when either a master-servant or principal-agent relationship exists 

between a tortfeasor and a third party. Nadeau v. Melin, 110 N.W.2d 29, 34 (Minn. 1961). 

“A principle-agent relationship results from the manifestation of consent by one person to 

another that the other shall act on his behalf and subject to his control, and consent by the 

other to so act.” Urb. ex rel. Urb. v. Am. Legion Post 184, 695 N.W.2d 153, 160 (Minn. 

App. 2005) (quotation omitted), aff’d, 723 N.W.2d 1 (Minn. 2006). The doctrine requires 

that the principle or master had “the right to control” the agent or servant. Id. 

The only issue under Lund’s respondeat superior claim is whether Ultimate Fitness 

had the right to control Calhoun Orange. “The determinative right of control is not merely 

over what is to be done, but primarily over how it is to be done.” Frankie v. Twedt, 

47 N.W.2d 482, 487 (Minn. 1951). Put differently, the supreme court described the control 

elements of apparent authority: holding out and reliance.”) (citation omitted), rev. denied

(Minn. Oct. 18, 2022). Rock is a nonprecedential opinion, cited for its persuasive value.
15

element as “the right to control the action of the person doing the alleged wrong in respect 

to the manner in which the work shall be done.” Gahagan v. Aerometer Co., 69 N.W. 914, 

915 (Minn. 1897).

Lund argues that the control prong is satisfied because Ultimate Fitness required

Calhoun Orange to have an AED, a first aid kit, and a fire extinguisher on the premises. 

But when determining control, Ultimate Fitness must have had control over “how” Calhoun 

Orange is to perform during medical emergencies. Frankie, 47 N.W.2d at 487 (emphasis 

added). While Ultimate Fitness mandated certain equipment be on Calhoun Orange’s 

premises, it did not mandate how Calhoun Orange must respond to medical emergencies 

or even whether Calhoun Orange needed to use the emergency equipment.

Lund points to Calhoun Orange’s emergency-response document and argues that 

the right-to-control element is satisfied because it borrowed language directly from 

Ultimate Fitness’s training documents. But Calhoun Orange independently created the 

document and voluntarily borrowed language from Ultimate Fitness’s training documents.

The record contains no evidence that Ultimate Fitness had control over whether Calhoun 

Orange decided to borrow its language.

Lund also contends that Ultimate Fitness’s right to control is established through 

the required marketing plan, vendors for retail items, hours of operation, and studio 

location. Although these facts support the idea that Ultimate Fitness exercised some 

control over Calhoun Orange’s day-to-day operations, the right to control must be tied to 

the asserted claim. See Gahagan, 69 N.W. at 255 (holding that principal is liable for 

agent’s negligence only if principal had right to control actions that led to harm). Ultimate 
16

Fitness’s right to control some of Calhoun Orange’s marketing and business operations 

have no connection to Calhoun Orange’s emergency-response protocols.

Viewing the evidence in a light most favorable to Lund, there are no genuine issues

of material fact as to the element of control. The record lacks evidence to show that 

Ultimate Fitness had a right to control Calhoun Orange’s emergency-response protocols. 

We conclude the district court properly granted summary judgment to Ultimate Fitness on

Lund’s claim under the doctrine of respondeat superior. 

C. Joint enterprise

Lund argues that the district court imposed a heightened standard of control when 

it granted summary judgment to Ultimate Fitness on Lund’s claims under the doctrine of 

joint enterprise. Joint enterprise liability exists when there is “(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 v. Lohmar, 289 N.W.2d 479, 482 

(Minn. 1979). Each member of the enterprise is an agent of the other members. 

Ruth v. Hutchinson, 296 N.W.2d 136, 141 (Minn. 1941).

The sole dispute on appeal is whether Ultimate Fitness had an equal right to control 

the emergency-response protocols. “The right to control means that all involved in the 

undertaking must have a joint or mutual right to direct the agency used to carry out the 

common purpose.” Pierson v. Edstrom, 174 N.W.2d 712, 714 (Minn. 1970). This prong 

does not require that “the right to control actually be exercised.” Id. Courts have often 

imposed joint enterprise liability to automobile cases and have required an equal right to 

control the means necessary to carry out the common purpose. See, e.g., Ruth, 296 N.W. 
17

at 141 (“The testimony is explicit that each one of them had an equal voice in the running 

of the trip.”); Feeser v. Emery, 134 N.W.2d 23, 26 (Minn. 1965) (finding joint enterprise 

existed when both parties shared expenses, management, and control of road trip). 

In granting summary judgment to Ultimate Fitness, the district court determined that 

Ultimate fitness “did not control how Calhoun Orange responded to emergencies[.]” Lund 

contends that the district court’s language suggests that Ultimate Fitness needed to actually 

exercise control over Calhoun Orange. We disagree.

As noted above, the parties did not have an equal right to determine 

emergency-response protocols. Calhoun Orange did not have an equal say in whether to 

keep an AED on the premises. And Ultimate Fitness did not have the equal authority to 

draft emergency-response guidelines for Calhoun Orange. The record establishes that 

Ultimate Fitness did not have an equal or mutual right to control Calhoun Orange’s 

emergency-response plan. Viewing the evidence in the light most favorable to Lund, we 

conclude there are no genuine issues of material fact as to whether the parties had an equal 

right of control, and the district court did not err in granting summary judgment on Lund’s 

claims under joint enterprise. 

III. The district court did not abuse its discretion in denying Lund’s new-trial 

motion.

Lund argues the district court abused its discretion in denying her motion for a new 

trial. Whether to grant a new trial because of attorney misconduct is “not governed by 

fixed rules, but instead rests wholly within the discretion of the trial court.” 

Johnson v. Washington Cnty., 518 N.W.2d 594, 600 (Minn. 1994). In deciding whether to 
18

grant a new trial, the primary consideration is prejudice. Wild v. Rarig, 234 N.W.2d 775, 

785 (Minn. 1975).

The district court did not abuse its discretion in denying Lund’s motion for a new 

trial. Even if we assume that counsel for Calhoun Orange misstated the law, the district 

court twice told the jury—after opening statements and following closing arguments—to 

ignore any reference by the attorneys to the legal standard governing Lund’s willful and 

wanton negligence claim and to instead follow the instructions provided by the court. The 

district court’s jury instructions accurately reflected the legal standard, and we presume 

“juries follow the instructions they are given.” Frazier v. Burlington N. Santa Fe Corp., 

811 N.W.2d 618, 630 (Minn. 2012). Because the jury instructions sufficiently cured any 

potential prejudice, the district court did not abuse its discretion in denying Lund’s motion 

for a new trial.

Affirmed.
C/D-1

CLEARY, Judge (concurring in part, dissenting in part)

While I concur with the majority’s opinion on parts II and III, I respectfully dissent 

from the majority’s decision that respondent Calhoun Orange’s second exculpatory clause 

is enforceable. 

The majority concludes that although the first exculpatory clause analyzed by the 

district court is unenforceable under the supreme court’s decision in Justice v. Marvel, 979 

N.W.2d 894 (Minn. 2022), the second exculpatory clause is enforceable because it 

mentions “active or passive negligence.” I disagree. The first and second exculpatory 

clauses, when read together, contradict one another and must be interpreted against 

Calhoun Orange.

Paragraph four of the intake form states:

Client has been informed that any fitness program includes 

possible risks and all exercises shall be undertaken at Client’s 

sole risk and discretion. Client assumes full responsibility for 

any and all damages, injuries or losses that may be sustained 

or incur, if any, while participating in any studio exercise 

program or physical activity. Client hereby waives all claims 

against the Studio, the Facility, the Studio instructors, officers, 

directors, employees or agents of either and/or any successor 

assigns or and all claims, demands, injuries, damages, actions 

or causes of action, whatsoever to my person or property 

arising out of or connected to the services, facilities, exercise 

classes, or the facility where same is located (including the 

Studio and/or the Facility, as applicable). Client hereby agrees 

to indemnify[,] defend, hold harmless, release and discharge 

the Studio and Facility from all claims, demands, injuries, 

damage actions[,] causes of action and from all acts of active 

or passive negligence on the part of the Studio, the Facility, the 

Studio instructors, their servants, agents, employees, and/or 

any successors and assigns, whatsoever, for any damages, 

injuries or losses that may be sustained by the Client arising 

from or in connection with the activities that Client voluntarily 
C/D-2

participates, including without limitation, attorney’s fees, 

costs, and expenses of any litigation, arbitration or other 

proceeding.

The intake form contains two separate clauses with exculpatory language. The first clause 

attempts to release Calhoun Orange from liability for “all claims.” I agree with the majority 

that this exculpatory clause is unenforceable under the supreme court’s decision in Justice 

v. Marvel, 979 N.W.2d at 901-03 (requiring exculpatory clauses to use specific and clear 

language expressing the intent to discharge a party for its own negligent acts). I also agree 

with the majority that the second exculpatory clause on its own satisfies the supreme 

court’s requirements by limiting itself to Calhoun Orange’s “acts of active or passive 

negligence.”

My divergence with the majority lies in the fact that the exculpatory clauses 

contradict one another. One clause seeks to discharge Calhoun Orange from “all claims,” 

while the other limits the waiver to “acts of active or passive negligence.” As a general 

rule, when two provisions of a contract conflict, “it is this court’s duty to find harmony 

between them and to reconcile them if possible.” Nat’l City Bank v. Engler, 777 N.W.2d 

762, 765 (Minn. App. 2010) (citation omitted), rev. denied (Minn. Apr. 20, 2010); see also 

17A C.J.S. Contracts § 324 (1999) (“Apparently conflicting provisions must be reconciled 

so as to give meaning to both, rather than nullifying any contractual provision, if 

reconciliation can be effected by any reasonable interpretation of the entire instrument.”). 

But the supreme court in Justice explicitly dismissed this theory of construction when 

analyzing exculpatory clauses in favor of strict construction. 979 N.W.2d at 899 (“We have 

since turned away from the rule of fair construction in cases involving exculpatory clauses 
C/D-3

in favor of strictly construing such clauses.”). Strict construction requires the parties to 

“clearly and unequivocally express the contracting parties’ intent.” Id. at 899-900. 

I fail to see how Calhoun Orange’s intake form meets this stringent standard when 

the contract provides contradicting scopes of waiver. The contract cannot expressly state 

the parties’ intent to release Calhoun Orange from its acts of negligence when it expressly 

provides otherwise in a separate clause. While no Minnesota court has had the chance to 

address this issue, other jurisdictions have agreed that when one of the contradicting 

clauses is an exculpatory clause, it takes no effect. See, e.g., Madrid v. Roth, 10 P.3d 751, 

755-56 (Idaho App. 2000) (determining that the exculpatory clause took no effect because 

it contradicted another part of the contract), rev. denied (Idaho Sept. 15, 2000); Dynair 

Tech of Fla., Inc. v. Cayman Airways Ltd., 558 So. 3d 30, 32 (Fla. 3d DCA 1989) (holding 

that because one clause of the agreement limited the defendant’s liability to its “sole 

negligence” while another clause limited the defendant’s liability to “gross negligence or 

willful misconduct,” the subject exculpatory clause took no effect).

In sum, I disagree with the majority’s holding that the intake form’s exculpatory 

clause is enforceable. While in a vacuum the second exculpatory clause meets strict 

construction, it directly contradicts the first exculpatory clause. The clauses read together 

fail to meet the strict construction’s requirements, and the contract must be interpreted 

against Calhoun Orange. I would reverse the district court’s grant of summary judgment 

based on the exculpatory clause, allowing Lund to proceed to trial on her claims for 

negligence, medical negligence, and negligent undertaking against Calhoun Orange.