This opinion will be unpublished and

may not be cited except as provided by

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







Jeffrey Hershey,





Continental Casualty Company,



Filed October 2, 2002


Willis, Judge


Beltrami County District Court

File No. C3011140


Stephen D. Gabrielson, Gabrielson Law Offices, Ltd., 18 Riverside Avenue South, Suite 220, Sartell, MN  56377 (for appellant)


Michael W. McNee, Andrea E. Reisbord, Cousineau, McGuire & Anderson, Chtd., 600 Travelers Express Tower, 1550 Utica Avenue South, Minneapolis, MN  55416-5318 (for respondent)


            Considered and decided by Willis, Presiding Judge, Stoneburner, Judge, and  Hudson, Judge.*

U N P U B L I S H E D   O P I N I O N


Appellant challenges summary judgment in an uninsured-motorist action, contending that there is a factual issue regarding whether the negligence of a phantom driver was the proximate cause of his injury.  Because there is no issue of material fact as to whether the phantom driver’s negligence caused appellant’s injuries, we affirm.


On January 24, 1997, appellant Jeffrey Hershey was test driving a vehicle for his employer.  Hershey was part of a convoy of vehicles and was driving a 1997 Dodge Ram pickup, owned by his employer and insured by respondent Continental Casualty Company (Continental).  The insurance policy included uninsured-motorist coverage.

            At approximately 8 p.m., the convoy was west of Bemidji and moving at about 50 miles per hour in the right eastbound lane of Highway 2, a four-lane highway, which was covered with snow and ice.  One of the drivers at the rear of the convoy radioed that a vehicle was coming up on the left.  Hershey testified at his deposition that he believed the vehicle was a blue Chevy S-10, but he could not definitely identify the vehicle or any occupants.  The vehicle passed Hershey and pulled in front of him without signaling. 

Hershey let up on his accelerator, put his turn-signal on, and moved into the left lane “to keep from hitting [the phantom driver].”  He then stepped back on the accelerator to pass the vehicle because he wanted to resume his place behind the vehicle he had previously been following in the convoy.  As Hershey began to pass the phantom driver, his pickup started to fishtail.  The fishtailing worsened; Hershey’s pickup spun out and slid backward into the ditch on the right side of the highway.  Hershey was seriously injured.  The phantom driver did not stop, and no one noted the vehicle’s license-plate number.

            Hershey brought an uninsured-motorist action against Continental, asserting that the accident and resulting injury were caused by the phantom driver’s negligence.  Continental denied that such negligence was the proximate cause of Hershey’s accident.  The district court granted summary judgment against Hershey, and this appeal follows.


            On appeal from summary judgment, an appellate court’s duty is to determine whether any genuine issues of material fact exist and whether the district court erred in its application of the law.  Cummings v. Koehnen, 568 N.W.2d 418, 420 (Minn. 1997).  “A reviewing court must view evidence in the light most favorable to the party against whom summary judgment was granted.”  Vetter v. Sec. Cont’l Ins. Co., 567 N.W.2d 516, 520 (Minn. 1997) (citation omitted).  This court gives de novo review to a district court’s determination of a purely legal question.  Frost-Benco Elec. Assoc. v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984). 

            Hershey argues that the accident and resulting injury were caused by the phantom driver’s negligence.  To establish a claim of negligence, a party must show (1) the existence of a duty of care, (2) a breach of that duty, (3) an injury, and (4) that the breach of the duty was the proximate cause of the injury.  Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995).  “A defendant is entitled to summary judgment as a matter of law when the record reflects a complete lack of proof on an essential element of the plaintiff’s claim.”  Id.  The sole issue on appeal is Hershey’s claim that there is a fact issue regarding whether the phantom driver’s negligence was the proximate cause of his accident and resulting injury.

            To determine whether a party’s negligence proximately caused an injury (1) the party’s act must be one which those exercising ordinary care would have anticipated causing injury and (2) the plaintiff must show that the party’s negligent conduct was a “substantial factor” in bringing about the injury.  Lubbers, 539 N.W.2d at 401.  Although proximate cause is generally a question of fact for the jury, it is a question of law when “reasonable minds can arrive at only one conclusion.”  Id. at 402.  A reviewing court does not defer to the district court’s decision on a question of law.  Frost-Benco Elec. Ass’n, 358 N.W.2d at 642.

            Hershey asserts that “[a]n act done in normal response to the stimulus of the situation created by the actor’s negligence is a substantial factor in bringing about the injury,” citing Smith v. Carlson, 209 Minn. 268, 272, 296 N.W. 132, 134 (1941) (citation omitted).  In Smith, the supreme court concluded that the plaintiff’s injuries, which resulted from the fact that she swerved to avoid a wagon and thereby flipped her car over, were proximately caused by the defendant, who was negligently driving the wagon.  Id. at 274, 296 N.W. at 135.  But here the accident was not caused by any response Hershey had to the phantom driver cutting him off.  Rather, Hershey’s own testimony at deposition establishes that the accident and resulting injury were caused by his subsequent attempt to overtake the phantom driver and resume his place behind the lead car in the convoy.              Hershey claims that the phantom driver was negligent because he “cut in front of Hershey’s vehicle, missing Hershey’s front bumper by a matter of a few feet.”  But Hershey’s response to the phantom driver’s negligent act was completed when Hershey had changed lanes to avoid hitting the phantom driver, and Hershey was in control of his vehicle at that point.  Hershey testified that he lost control of his vehicle after he stepped back on the accelerator in an attempt to overtake the phantom driver. 

The district court did not err by concluding that Hershey did not establish that there is a genuine issue of material fact regarding whether the phantom driver’s negligence proximately caused Hershey’s accident and injury. 




* The Honorable Daniel F. Foley, one of the founding members of this court, who continued to serve by appointment order from the supreme court after his retirement, fully participated in the consideration of this appeal.  Due to Judge Foley’s untimely death before the filing of the opinion, Judge Hudson has been assigned as a substitute, and now joins the panel in issuing this decision.