This opinion will be unpublished and

may not be cited except as provided by

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






Sid Michel, individually, and

d/b/a Michel Enterprises,




Minn-Dak Co., d/b/a Fargo Freightliner,



Seats, Inc.,





Atwood Mobile Products, Inc.,

     Third-Party Defendant.


Filed December 3, 2002


Randall, Judge


Wadena County District Court

File No. 99-00-125


Barbara Anderson Lewis, Paul R. Oppegard, Smith, Bakke, Hovland, & Oppegard, 1506 Main Avenue, Suite 204, P.O. Box 657, Moorhead, MN 56561-0657 (for appellant)


Michael S. Kreidler, Leo I. Brisbois, Stich, Angell & Kreidler, PA, The Crossings, Suite 120, 250 Second Avenue South, Minneapolis, MN 55401 (attorney for respondent Seats, Inc.)


Janet Pollish, 5021 Vernon Avenue South, P.O. Box 121, Edina, MN 55436 (for respondent Fargo Freightliner)


            Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Willis, Judge.


U N P U B L I S H E D   O P I N I O N


            Appellant Sid Michel alleges that the district court erred by (1) applying an incorrect standard of review for summary judgment, (2) granting summary judgment to respondent Seats, Inc., and (3) denying his motion for a continuance to conduct additional discovery.  Because the district court did not err, we affirm.


            In January 1996, appellant Sid Michel (Michel), purchased a used Freightliner truck from Fargo Freightliner (Fargo).  As part of the purchase, Fargo agreed to install in the truck a driver’s seat called the “El Camino,” an air-ride seat manufactured by respondent Seats, Inc. (Seats).  Fargo also agreed to install an isolator unit produced by Atwood Mobile Products, Inc. (Atwood), a device designed to enhance the comfort of the seat.

            On December 18, 1997, Michel was using the truck to transport freight when he heard a snap and felt the driver’s seat tip sharply to the right.  Michel lost control of the truck, causing it to drive into a ditch and overturn.  Michel was injured, and his truck, its trailer, and the freight were damaged because of the accident.  A post-accident inspection concluded that the bolts used to secure the specialized seat to its isolator track had failed and broken, dislodging the seat. 

            Michel brought suit against Fargo and Seats.  Later, Seats brought a third-party claim against Atwood.  During discovery, expert-witness reports were prepared by defense experts that concluded that the bolts failed because they had been inadequately tightened, causing undue stress and wear.  One of Seats’s experts also suggested that the removal of one of the spacer washers used during installation contributed to the inadequate tightening.

            Atwood, Fargo, and Seats all moved for summary judgment.  On September 14, 2001, the district court granted Seats’s motion for summary judgment because (1) Michel’s allegations of Seats’s negligence required expert testimony to make a prima facie case, and (2) Michel failed to provide that testimony.  The district court also granted summary judgment to Atwood, but denied Fargo’s summary judgment motion. 

            Later, a dispute arose regarding the scope of the district court’s summary judgment order.  The district court vacated its previous order with regard to Seats, and issued a new order, adopting the prior order’s reasoning but clarifying its language.  The district court again granted summary judgment to Seats.  This appeal follows.




            Michel claims that the district court erred by applying an incorrect standard of review to Seats’s summary judgment motion.  Michel argues that the district court employed the standard for a directed verdict instead of the standard for summary judgment motion.  This court reviews matters of law de novo.  Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W. 2d 639, 642 (Minn. 1984).

The district court, interpreting both state and federal case law, stated that the proper standard for evaluating summary judgment motions requires that the non-moving party respond with sufficient evidence to withstand a directed verdict.  We understand Michel’s argument.  While we agree with Seats that there are similarities between the standards applied to directed verdict and summary judgment motions, they are not identical. 

A directed verdict motion may be made “at the close of the evidence offered by an opponent or at the close of all the evidence.”  Minn. R. Civ. P. 50.01.  Only then is it possible for the district court to review the evidence as a whole, make credibility determinations, and conclude whether the case should be submitted to the jury.  Claflin v. Commercial State Bank of Two Harbors, 487 N.W.2d 242, 247 (Minn. App. 1992), review denied (Minn. Aug. 4, 1992) (“a motion for a directed verdict presents a question of law for the trial court: whether the evidence is sufficient to present a fact question for the jury to decide.”)

On the other hand, a summary judgment motion is made before trial and decided on “the pleadings, depositions, answers to interrogatories, admissions, affidavits, and documentary evidence.”  Minn. R. Civ. P. 56.03; DLH, Inc. v. Russ, 566 N.W.2d 60, 70(Minn. 1997).  The district court’s inquiry is similar, though, for it must decide “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512 (1986).  With both motions, however, the district court must ultimately evaluate whether there is sufficient evidence to warrant submitting the case to a jury.

            Here, the district court prepared a lengthy and well-written memorandum.  While the memorandum spent much time analyzing the relationship between summary judgment and directed verdict motions, the court’s memorandum acknowledges that, on a summary judgment motion, the court’s function “is to determine whether or not a genuine issue of fact exists.”  The court quoted Liberty Lobby, stating “[T]he judge’s function is not * * * to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.”  Liberty Lobby, 477 U.S. at 249, 106 S. Ct. at 2511.  This shows that the district court understood its proper role in determining whether summary judgment should be granted.  In the end, the district court granted summary judgment to Seats because it determined that appellant had not created a genuine issue of material fact.  This is the appropriate standard for summary judgment motion, and the district court did not err in applying it. 


Michel further claims, that regardless of the standard used, the district court erred when it granted Seats’s motion for summary judgment.  Michel alleges that there were issues of fact remaining regarding the sufficiency of the seat installation instructions and warnings.

To prevail on a claim of failure to warn, a plaintiff must establish that (1) the defendant had a duty to warn, (2) any warnings were inadequate, and (3) the lack of an adequate warning caused the plaintiff’s injuries.  Erickson v. Amer. Honda Motor Co., Inc., 455 N.W.2d 74, 77-78 (Minn. App. 1990), review denied (Minn. July 13, 1990).  Here, Michel argues that he presented sufficient evidence to establish that Seats breached its duty because it failed to provide instructions on the safe use of the seat and because it failed to provide a warning regarding the removal of washers from the seats. 

Michel set out the instructions in his brief.  There are two sets, and they provide in relevant parts:









Michel’s argument is that these instructions fail to advise an installer on how tight the bolts must be fastened to meet FMVSS or SAE standards, and they fail to warn the installer of the danger of failing to remove all the spacers provided.  Michel claims that alleged defects in the instructions and warnings raise a question of material fact as to their sufficiency.  But, as the district court noted, Michel failed to provide any expert testimony indicating that the instructions for installing the seats were so inadequately written that a failure to warn on Seats’s part can be inferred.  In addition, Michel offered no evidence showing that the person who installed the seat had even relied upon the instructions or warnings.  Based upon the paucity of facts in the record, a finder of fact would be speculating to conclude that the instructions were inadequately written.  A party opposing a motion for summary judgment cannot rely on the mere averments in its pleadings and unsupported allegations, it must present affirmative evidence sufficient to raise an issue of material fact.  Naegele Outdoor Advertising Co. of Minneapolis v. City of Lakeville, 532 N.W.2d 249, 252 (Minn. App. 1995), review denied (Minn. July 20, 1995); Minn. R. Civ. P. 56.05.  The district court understood Michel’s position on negligence and Seats’s position that Michel was not showing any negligence, but merely “claiming negligence.”  A mere claim is not enough to defeat a motion for summary judgment, even with all inferences being decided in favor of the nonmoving party.

The record supports a conclusion that the district court had a full understanding of Michel’s argument on the facts, and accepting Michel’s factual argument, still properly found that Michel had not provided enough to survive a motion for summary judgment.  The district court stated:

Mr. Michel’s claims against Seats are based on the alleged absence or inadequacy of instructions and warnings with regard to the installation of the isolator in the El Camino seat. The claims focus in particular on the proper tightening of the fasteners used to connect the isolator to the floor of the cab of the truck, or, perhaps more accurately, to the heavy duty track on which the isolator unit rested.


The court determined that Michel failed to present sufficient evidence to defeat a summary judgment motion, on

how much torque (pressure) was to be applied on bolts used to install an isolator in a seat used in a semi; questions as to what might have caused the fatigue, fracture, and failure of the fasteners; and a dispute about the need for and adequacy of certain warnings or installation instructions.


             We affirm the district court’s conclusion there is not enough evidence in the record on the basis of the printed warnings and the fact of the accident to survive a motion for summary judgment.  Michel argues that the instructions “had to be inadequate” or the bolts would not have broken. 

            The district court stated that Michel presented no


expert witness evidence to support his allegations that the instructions or warnings provided by Seats were either inadequate or nonexistent, or to support his allegations that the absence or inadequacy of those instructions or warnings were the proximate cause of the failure of the fasteners and the accident.


We note that all the defense experts agreed that there was some evidence of negligence.  The bolts failed because they were not adequately tightened at installation.  This is why, as the installing entity, Fargo’s motion for summary judgment was denied.  Further, the district court denied Seats’s motion to have Fargo’s cross-claim for indemnity and contribution dismissed, so Seats is not entirely removed from this case.  Michel is not left with an injury and no one to sue. 

            Because Michel failed to set forth evidence that raised a genuine issue of material fact regarding the sufficiency of Seats’s instructions or warnings, the district court did not err by granting Seats’s motion for summary judgment.



            Michel’s final argument is that because there is an alleged presumption favoring the granting of continuances, the district court erred by denying his motion for a continuance to conduct additional discovery.  But absent an abuse of discretion, the district court’s decision whether to continue a summary judgment proceeding to permit further discovery will not be reversed on appeal.  Cherne Contracting Corp. v. Wausau Ins. Cos., 572 N.W.2d 339, 346 (Minn. App. 1997), review denied (Minn. Feb. 19, 1998).

            Michel erroneously relies on Cherne for the proposition that there is a presumption favoring continuances.  This court stated in Cherne that a district court should grant a continuance only after considering whether the party bringing the motion has been diligent in their discovery, had a good faith belief that the material facts will be discovered, and when the district court believes that the additional discovery would not be used to engage merely in a “fishing expedition.”  Cherne, 572 N.W.2d at 346 (citation omitted).

            Here, the record supports the district court’s conclusion that Michel was not duly diligent in pursuing discovery.  The district court’s scheduling order required that discovery would be compelled by May 4, 2001.  Seats filed its motion for summary judgment on June 7.  Michel did not request a continuance until June 25, and based his motion in part on the claim that he needed to locate a former employee of Fargo.  But on April 25, Fargo informed Michel that the employee he was looking for was no longer under its employment. Michel was aware of the former employee’s existence for at least two weeks before the expiration of discovery period, but did not pursue the information at that time. On these facts, the call could go either way.  We see the lack of diligence that the district court relied on.  However, it does not appear to be an egregious lack of diligence.  Having said that, a district court’s decision to extend the time for discovery or to close it off is a discretionary call best made by the court that is monitoring the case.  We conclude this district court did not abuse its discretion by denying Michel’s motion for a continuance.

            Because the district court did not err in its application of the law to the facts of this case, we affirm.