This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Melissa K. Root, et al.,





Shawn Everly Hagen,



Daniel Thomas Halla,



Gary William McCarthy,



Filed September 11, 2001


Lindberg, Judge


Steele County District Court

File No. C4-00-620



Donaldson V. Lawhead, Lawhead Law Offices, 301 South Main Street, Austin, MN  55912 (for appellants)


Shawn E. Hagen, 711-1/2 First Drive Northwest, Austin, MN  55912 (pro se respondent)


Steven L. Viltoft, 10285 Yellow Circle Drive, P.O. Box 70, Hopkins, MN  55343 (for respondent Halla)


Steven S. Fuller, Fuller Law Firm, 400 South Broadway, Suite 302, Rochester, MN  55904 (for respondent McCarthy)


            Considered and decided by Stoneburner, Presiding Judge, Hanson, Judge, and Lindberg, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellants challenge the district court’s grant of summary judgment in favor of respondent Gary William McCarthy, contending the district court erred in ruling that there was no genuine issue of material fact as to whether respondent breached any duty owed to appellants and in finding that there were no facts showing that respondent was not in control of his vehicle or that his speed was not appropriate.  We affirm.


Appellant Melissa K. Root was a front-seat passenger in a car driven by respondent Shawn E. Hagen, who was traveling west on Highway 14 to work.  Hagen took the exit for northbound County Road 45.  It is undisputed that the road conditions were unfavorable that March day.  A stop sign is posted at the end of the exit where the exit intersects with County Road 45.  Hagen was unable to stop her vehicle and slid through the stop sign onto the northbound lane of County Road 45.  Respondent Daniel Halla was traveling north on County Road 45.  He was unable to stop his vehicle in time and hit Hagen, propelling Hagen into the southbound lanes of traffic.  McCarthy, traveling south on County Road 45, was unable to stop his truck, and he hit Hagen’s vehicle.  Appellant Melissa K. Root sustained severe injuries.

McCarthy was driving 30 miles per hour, 15 miles per hour less than the posted speed limit and five to 15 miles less than the alleged speeds of the other vehicles involved in the accident.  His son, home from college, was a passenger in the truck.  At his deposition, McCarthy stated he saw Hagen’s vehicle come through the intersection, but he did not know exactly where his truck was in relation to Hagen’s vehicle at that time because it happened so quickly.  He described the impact between Hagen and Halla as a “blur.”  He told his son to hold on, braked, and steered his car from the left-hand southbound lane to the right-hand southbound lane.

McCarthy’s son offered a similar description.  He estimated he saw Hagen’s vehicle about 20-30 feet east of the stop sign and could see that she would not be able to stop.  He said he first noticed the car when McCarthy told him to “grab on.”  He also said that McCarthy was braking and steering right at the time to try to avoid an accident.

A witness, David Skranak, traveling east on Highway 14, took the exit ramp to head north on County Road 45.  Skranak’s exit ramp was south of Hagen’s exit ramp and south of the accident site.  McCarthy was north of Hagen’s exit ramp and north of the first impact between Hagen and Halla.  Skranak said he saw Hagen’s vehicle coming up the exit ramp and anticipated the accident before Hagen’s vehicle reached the stop sign.

Much of the exit from Highway 14 to County Road 45 is on a slight upward grade.  Appellants claim that the area was “wide open” and Hagen’s car was visible to all drivers on County Road 45.  But pictures in the record show that the area north of Hagen’s exit and east of County Road 45 is heavily treed.  Although it was winter and the trees had no leaves, the area was not free from all obstruction.   

Appellants Melissa and Douglas Root sued respondents Hagen, Halla, and McCarthy for Melissa’s injuries and Douglas’s loss of consortium.  Respondents McCarthy and Halla moved for summary judgment.  In response, appellants argued what they now argue before this court, that McCarthy was driving too fast for the road conditions and did not maintain a proper lookout.  Appellants contend that McCarthy could have avoided or reduced the severity of the crash had he maintained a proper lookout and adjusted his driving accordingly.  The district court found that McCarthy was in control of his vehicle, drove under the speed limit, and took evasive action.  For those reasons, the district court granted McCarthy’s motion for summary judgment.  For reasons unrelated to this appeal, the court denied Halla’s motion.  Thereafter, the district court filed an order for an amended judgment declaring that pursuant to Minn. R. Civ. P. 54.02 there was no just reason for delay and directing entry of a final judgment.  This appeal followed.


On appeal from summary judgment, the reviewing court asks

“(1) whether there are any genuine issues of material fact to be determined, and (2) whether the district court erred in its application of the law.”


O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn. 1996) (citation omitted).  Generally, negligence is an issue of fact not appropriate for summary judgment.  Otto v. City of St. Paul, 460 N.W.2d 359, 361 (Minn. App. 1990).  But “where material facts are undisputed and as a matter of law compel only one conclusion, summary judgment may be appropriate.”  Id. (quotation omitted). 

We review the evidence in the light most favorable to the nonmoving party.  The nonmovant must produce specific facts that create an issue for trial.  Gorath v. Rockwell Int’l, Inc., 441 N.W.2d 128, 131 (Minn. App. 1989).  To prevail on a negligence claim, the plaintiff must show (1) that the defendant had a legal duty; (2) the defendant breached the duty; (3) that the plaintiff suffered an injury; and (4) the breach of the duty was the proximate cause of plaintiff’s injury.  Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 157 (Minn. 1982).

Our focus is on whether McCarthy breached his duty to drive on the highway in a “reasonable and prudent [manner] under the conditions * * * [and having regard to] the actual and potential hazards then existing” in order to avoid a collision.  Minn. Stat. § 169.14, subd. 1 (2000).  Appellant contends the district court erred in concluding that no material facts exist to demonstrate that McCarthy breached his duty.  We disagree.

Appellants assert that there is evidence that McCarthy was talking and interacting with his son, which distracted him, and, thus, he failed to maintain a proper lookout.  Appellants do not cite any document of record to support this assertion, and our review of the record reveals no support.  The only semblance of support is that McCarthy’s son stated at his deposition that he rode in the truck with McCarthy for “social” reasons.  But neither the son nor McCarthy state that they were talking and interacting at the time of the accident.  Appellants merely speculate that because McCarthy’s son was home from college and riding in the truck that they must have been talking, and thus McCarthy must have been distracted.  “Summary judgment is not to be avoided simply because there is some metaphysical doubt as to a factual issue.”  Bob Useldinger & Sons, Inc. v. Hangsleben, 505 N.W.2d 323, 328 (Minn. 1993).  Even if one assumes appellants’ facts are true, “this evidence is more speculative than probative” and thus insufficient to defeat a summary judgment motion.  Id.

Next, appellants assert that a jury could determine, based on the openness of the area, that McCarthy should have seen that Hagen could not stop and should have adjusted his speed to avoid or reduce the severity of the accident.  To support this assertion, appellants cite witness Skranak’s deposition testimony that he could see that Hagen would not be able to stop her vehicle.  But Skranak was south of the accident.  McCarthy was north of the first impact.  There are trees east of County Road 45 and north of Hagen’s exit ramp.  Moreover, the exit is sloped slightly upwards.  There is no evidence in the record to support appellants’ assertion that McCarthy should have seen Hagen’s car before the time that he did.  Again, even if one assumes appellants’ facts are true, “this evidence is more speculative than probative” and thus insufficient to defeat a summary judgment motion. 

Finally, appellants argue that McCarthy’s own deposition testimony about the speed of the events and distance at which he saw Hagen’s vehicle provides evidence that he failed to maintain a lookout and consequently was driving too fast to avoid the accident or its severity.  We disagree.  First, there is no dispute that McCarthy was traveling 15 miles per hour below the posted speed limit.  This is five to 15 miles per hour slower than the alleged speeds of the other vehicles involved.  Second, McCarthy’s statements that “it happened so quick,” “it was like a blur,” he saw just a “glimpse,” and action of throwing a pen on the table to describe how fast the events occurred, do not create a material fact precluding summary judgment because appellants have taken the statements out of context. 

Both McCarthy and his son offer similar accounts of the accident.  McCarthy saw Hagen slide through the stop sign and into the intersection and yelled at his son to hold on, applied his brakes, and turned his car to the right to try to avoid the accident.  McCarthy states that both impacts (between Halla and Hagen and between Hagen and him) happened quickly.  There is no evidence in the record to dispute this.  As stated previously, nothing in the record supports appellants’ assertion that McCarthy should have seen Hagen before that time. 

Third, appellants argue that inconsistent statements by McCarthy about where he first saw Hagen’s vehicle preclude summary judgment.  They state that McCarthy first testified that he saw nothing until the “blur of the wreck” between Hagen and Halla.  Later, McCarthy stated that he saw Hagen’s vehicle coming up the off ramp, first 30 feet from the stop sign, and then later just 15 feet from the stop sign.  Appellants’ argument is again without merit. 

In fact, McCarthy first stated that he saw Hagen’s vehicle slide through the intersection.  That statement is not inconsistent with his later statement that he first saw her vehicle about 30 feet from the stop sign.  McCarthy then stated that he did not know where his vehicle was at the time he first saw Hagen’s vehicle because it all happened quickly.  Then in describing the impact between Hagen and Halla, McCarthy said he saw that impact only in a glimpse, and threw his pencil down to describe the amount of time that passed.  None of these statements is inconsistent with the other. 

Similarly, when describing where he first saw Hagen’s vehicle, he said it was “about 30 feet” from the stop sign, “like 30 feet,” and finally “[i]t might not have been” 30 feet, only 15, “I don’t know,” and “It wasn’t hardly the length of her car.”  These statements are not inconsistent either.  He never said it was exactly 30 feet, he said it was about 30 feet.  And when he said it might have been 15 feet, the length of her car (which was a Honda Prelude) he again mentioned how quickly the incident occurred.

Appellants have merely speculated that McCarthy should have seen that Hagen was likely to slide through the stop sign and he should have taken evasive actions.  They have offered no evidence of record to support that speculation.  Because appellants failed to present any evidence tending to indicate that McCarthy breached any duty imposed on him by law, we conclude that the district court properly granted summary judgment.


*  Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.