This opinion will be unpublished and

may not be cited except as provided by

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






Gerald Gehrke,





McCabe’s Ace Hardware, Inc., et al.,



Filed January 8, 2002


Gordon W. Shumaker, Judge


Brown County District Court

File No. C700288



Patrick A. Lowther, Pat Lowther Law Firm, PLC, 134 Second Avenue Southeast, Sleepy Eye, MN 56085-0366 (for appellant)


Mark Ullery, Gislason & Hunter, LLP, 424 North Riverfront Drive, Suite 250, Mankato, MN 56002-4157 (for respondents)


            Considered and decided by Halbrooks, Presiding Judge, Shumaker, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N




            Appellant challenges the dismissal of his case by summary judgment, arguing that the district court erred in concluding that appellant’s theory of causation for his slip and fall is based, not upon genuine, material fact, but upon speculation and conjecture.  Because there is no genuine issue of material fact demonstrating that appellant’s theory of causation outweighs and predominates over other possible causes of his fall, we affirm.


            At about 8:30 p.m. on January 20, 1997, appellant Gerald Gehrke walked across Main Street in Sleepy Eye from the south side to the north side, intending to enter respondents’ hardware store.

When he came to the curb on the north side of the street, he began to step up onto the sidewalk by placing his right foot on the curb.  As he started to raise his left foot, his right foot slipped out from under him and he fell onto the sidewalk and was injured.

In this lawsuit for his injuries, Gehrke offers the theory of liability that an awning that extends from the hardware store out onto a portion of the sidewalk likely caused water to drain across the sidewalk and into the gutter.  Because of the temperature, the water on the sidewalk likely froze and made the sidewalk slippery.

The awning on the hardware store is constructed with drain holes to allow melting snow and water to drain onto the sidewalk and flow into the street.  On January 20, 1997, in Sleepy Eye the temperature reached 34º and snow on the awning, if there was any, could have melted.  In the past, water draining from the awning has frozen on the sidewalk.

Gehrke does not know why he fell.  He noticed that the sidewalk was wet or damp, but he does not know the source of this condition.  He does not know if his right foot was entirely on the sidewalk or partially on the curb when he slipped.

Before Gehrke’s fall, one of the hardware store proprietors sprinkled some ice-melt on the sidewalk as a precaution.  After Gehrke notified her of his fall, she told him that she would go out and put something on the sidewalk.  She looked at the walk and found no area where there was ice on it.

Water from melting snow would sometimes accumulate in the gutter near the curb where Gehrke fell, which could sometimes be splashed up onto the curb and sidewalk by cars entering and leaving parking spaces in front of the hardware store.  Gehrke noticed water standing in this area on the evening that he fell.

Concluding that these facts do not present a genuine issue as to proof of causation, the district court granted respondents’ motion for summary judgment.


On appeal from summary judgment, this court determines whether there are genuine issues of material fact and whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  To survive summary judgment, Gehrke must show that genuine issues of material fact exist that would establish a prima facie claim of negligence.  Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995).  A prima facie case of negligence requires evidence of: (1) a duty owed by respondents; (2) a breach of that duty; (3) the breach of that duty is the proximate cause of appellant’s injury; and (4) appellant did in fact suffer injury.  Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 157 (Minn. 1982).  Gehrke is ultimately required to prove it is more probable that his injury occurred in whole or in part from respondents’ negligence than from any other cause.  Bahl v. Country Club Mkt., 410 N.W.2d 916, 920 (Minn. App. 1987).

It is undisputed that the sidewalk is owned by the city.  Thus, as abutting property owners, respondents are “liable for a sidewalk hazard only when it is caused at least partially by conditions they have created.”  Strong v. Richfield State Agency, Inc., 460 N.W.2d 106, 108 (Minn. App. 1990) (quotation omitted).  Respondents

are not liable to pedestrians for injuries caused by stumbling or slipping on sidewalks which have become slippery and dangerous from natural (as distinguished from artificial) accumulations of ice and snow.


Id. (emphasis omitted) (quotation omitted).  Therefore, appellant must provide evidence showing that water dripping from the awning caused the sidewalk to be slippery.

Gehrke’s case is based principally on circumstantial evidence.  But circumstantial evidence must be more than simply consistent with a party’s theory of causation; reasonable minds must be able to conclude from the circumstances that the theory outweighs and preponderates over opposing theories.  Schweich v. Ziegler, Inc.,  463 N.W.2d 722, 730 (Minn. 1990).  The causation element in a prima facie case of negligence is founded upon speculation and conjecture where the evidence shows that a purported theory of causation is not more plausible than another theory.  Sauer v. State Farm Mut. Auto. Ins. Co., 379 N.W.2d 213, 215 (Minn. App. 1985), review denied (Minn. Feb. 19, 1986).

The evidence here shows that no one, not even Gehrke, noticed any ice on the sidewalk the night he slipped; rather, the sidewalk merely looked wet.  Furthermore, although there was testimony that water did ordinarily drip from the drain holes in the awning onto the sidewalk, no evidence was offered showing that water was dripping onto the sidewalk at the time of Gehrke’s fall, or at any other time that day.  The cause of the “wet” sidewalk is unknown. 

Gehrke testified at deposition that as he stepped up onto the sidewalk, he shifted his weight from his back leg to the leg on the sidewalk, and the foot on the sidewalk slipped out from under him, causing him to fall.  He testified that the foot on the sidewalk may have been only partially on the curb.  He had both hands in his front pants pockets at the time he fell.  He does not remember looking at the place where he slipped to see what caused his fall, but he testified that “I might have glanced at where I slipped, * * * I guess I just thought that that must be ice on the sidewalk there.”  He also testified that “I cannot tell you exactly what there was on the sidewalk that made me fall, but my suspicion is ice.”  Lastly, he testified that as he went into the store after he had slipped, no other part of the sidewalk seemed slippery, even though the whole sidewalk, including the area in which he fell, appeared “equally wet.”

Although there are factual uncertainties as to the cause of Gehrke’s fall, there is no genuine issue of material fact as to whether water dripping from the awning and freezing on the sidewalk caused his fall.  As the district court appropriately concluded, there are several other possible causes that are just as likely as Gehrke’s theory of causation, most notably, that he fell because he failed to place his foot solidly on the curb.  The district court did not err in its conclusion that Gehrke’s theory of causation rests upon speculation and conjecture, and summary judgment was properly granted.

Gehrke cites two cases in principal support of his argument that his prima facie case of causation is not based upon speculation or conjecture.  However, both of these cases are factually distinguishable from Gehrke’s circumstances.  In the first case, Lutz v. Lilydale Grand Central Corp., 312 Minn. 57, 250 N.W.2d 599 (1977), the plaintiff slipped and fell in a parking lot.  The plaintiff testified that, although she did not specifically recall seeing ice on the spot of her fall, she did notice scattered ice accumulations throughout the parking lot, and there was a light dusting of snow the morning that she fell.  This was found to be sufficient circumstantial evidence to support her theory that ice caused her to slip and fall.  However, in our case, Gehrke does not recall seeing any ice on the spot where he fell, or anywhere else on the sidewalk; rather, he noticed only that the whole sidewalk was “equally wet.”  Since neither Gehrke nor anyone else saw anything that indicated that ice had accumulated anywhere on the sidewalk, Lutz does not support his argument.

In the second case, Smith v. Kahler Corp., 297 Minn. 272, 211 N.W.2d 146 (1973), the plaintiff tripped over a chair leg and fell while walking to the dance floor of defendant’s cocktail lounge.  Although there was no direct evidence showing that the plaintiff tripped on a chair leg, there also was no evidence showing that she caught her foot on any other object.  Furthermore, there was circumstantial evidence showing that when she fell, she was behind a chair, she caught her foot on something, and she fell around a chair.  There was also evidence showing that the back legs of the chair protruded behind the seat.  This evidence supported plaintiff’s theory of causation.

In both Lutz and Smith, there was a condition or an instrumentality in the immediate area of the falls that likely could have caused the falls and there was nothing else in particular that might have caused them.  Here, there is no evidence of a condition, namely ice, in the area of Gehrke’s fall, and there are other reasonable circumstantial explanations of causation.

Because Gehrke provided no evidence, circumstantial or otherwise, to raise a genuine issue of material fact supporting his theory of causation, the district court appropriately concluded that Gehrke’s theory of causation was based upon speculation and conjecture, and appropriately granted summary judgment.