This opinion will be unpublished and

may not be cited except as provided by

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






Warren S. Knight,





B & B Companies, Inc.,

defendant and third-party plaintiff,





Marigold Foods, Inc.,

third-party defendant,



Filed November 19, 2002

Reversed and remanded

Klaphake, Judge


Hennepin County District Court

File No. 00-017703


Logan N. Foreman, III, 333 South Seventh Street, Suite 1170, Minneapolis, MN 55402; and


Willard L. Wentzel, Jr., W.L. Wentzel, Jr. & Associates, PLLC, 6100 Green Valley Drive, Suite 200, Bloomington, MN 55438 (for appellant)


Thomas H. Schaefer, Erstad & Riemer, P.A., 200 Riverview Office Tower, 8009 34th Avenue South, Minneapolis, MN 55425 (for respondent B & B Companies)


William A. Celebrezze, Aafedt, Forde, Gray & Monson, P.A., 150 South Fifth Street, Suite 3100, Minneapolis, MN 55402 (for respondent Marigold Foods, Inc.)


            Considered and decided by Toussaint, Chief Judge, Klaphake, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant Warren S. Knight brought this negligence action against respondent B & B Companies, Inc. (B & B), after he slipped and fell on a flooring surface that B & B had installed in the creamery where Knight worked.  B & B thereafter bought a third-party complaint against Knight’s employer, respondent Marigold Foods, Inc., claiming that Marigold Foods was liable for Knight’s injuries.[1]

            B & B moved for summary judgment, arguing that it owed Knight no duty and that Knight failed to present any evidence on the other elements necessary to show negligence.  The district court first concluded that B & B, which was hired for its expertise in these types of flooring, owed Knight a duty under a simple negligence theory to exercise reasonable care when choosing and installing the flooring surface in the creamery.  B & B has not challenged the district court’s ruling on this issue, either in a separate appeal or by notice of review under Minn. R. Civ. App. P. 106.  See Arndt v. Am. Family Ins. Co., 394 N.W.2d 791, 793-94 (Minn. 1986) (respondent’s failure to challenge adverse ruling by district court under rule 106 precludes review of issue on appeal); Kolby v. Northwest Produce Co., 505 N.W.2d 648, 652-53 (Minn. App. 1993) (same).

            The district court next concluded that although B & B owed a duty to Knight, a grant of summary judgment to B & B was nevertheless appropriate, because Knight failed to present sufficient evidence on the elements of causation and breach.  Because we conclude that Knight’s deposition testimony, together with his expert’s affidavit, created a genuine issue of material fact regarding whether B & B breached its duty of care and whether any breach caused Knight’s injuries, we reverse the grant of summary judgment to B & B and remand for trial.


            Summary judgment is properly granted when “there is no genuine issue as to any material fact and * * * either party is entitled to a judgment as a matter of law.”  Minn. R. Civ. P. 56.03.  On appeal, we must view the evidence in the light most favorable to the party against whom summary judgment was granted.  Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995).

            A defendant in a negligence action is entitled to summary judgment when the record reflects a complete lack of proof on any of the following four elements:  (1) the existence of a duty of care; (2) a breach of that duty; (3) actual and proximate cause; and (4) resulting injury.  Id.  But summary judgment is not a substitute for trial and should not be granted against a plaintiff who produces some evidence to support his or her claim of negligence.  Olson v. Kozlowski, 311 N.W.2d 851, 852 (Minn. 1981); Hasan v. McDonald’s Co., 377 N.W.2d 472, 474-75 (Minn. App. 1985).

Here, the district court concluded that Knight failed to produce any evidence to create a genuine factual dispute regarding any breach by B & B.  The court reasoned that Knight’s allegation that B & B failed to uniformly spread the abrasive substance over the floor did not demonstrate how B & B breached its duty by departing from the standard of care it was required to follow.

However, Knight submitted an expert affidavit from an architect with “extensive experience in the planning, design, construction and modification of dairy plants,” including the plant where Knight was injured.  In particular, Knight’s expert offered the following opinion:

When the floor was resurfaced using the [product selected by B & B,] it was imperative for the flooring to be uniformly and sufficiently covered with slip resistant material.  Based on the facts determined to date, the slip resistant material as installed by [B & B] was not uniform [and] was inadequate particularly in the critical area of the steps where [Knight] fell in the raw tank alley.


The expert further stated that B & B must be “held to the standard of a flooring expert” and had the “responsibility to install the selected flooring to meet all applicable codes, regulations and certifications and to do so in a manner that [made] the floor slip resistant.”  In the expert’s opinion, B & B “breached this responsibility resulting in the injury sustained by [Knight].”

Knight himself testified by deposition that “there wasn’t any kind of a grit or any kind of thing on the floor where” he fell and that the floor in that area “wasn't done right” because it was “smooth.”  Knight further stated that in some areas of the floor, which were not slippery, grit could be seen and felt on the floor, while in other areas, which were slippery, the floor appeared to have no grit and was smooth.  We conclude that Knight’s personal observations, combined with his expert’s opinion, were sufficient to raise genuine issues as to whether B & B breached its duty of care to Knight when it resurfaced the floor.

The district court also concluded that Knight failed to present any evidence on the issue of causation, other than his belief that “not enough grit” was used by B & B.  Again, however, Knight testified that the area where he fell was “slippery as ice” and that other areas of the floor had enough grit so that “you could see” it and that you “couldn’t slip on it.”  Knight’s expert opined that Knight fell because B & B failed to uniformly and adequately apply the non-slip surface to the critical areas of the floor.  We therefore conclude that Knight presented sufficient evidence to raise a genuine issue as to whether B & B’s breach of its duty caused Knight’s injuries.

            Because disputed issues of material fact exist regarding both breach of duty and causation, we reverse the district court’s grant of summary judgment to B & B and remand for further proceedings.

            Reversed and remanded.


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


[1] Marigold Foods appeared at the hearing on B & B’s summary judgment motion, but has not participated in this appeal.