This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).
















Filed August 5, 2003

Forsberg, Judge


Olmsted County District Court

File No. C8022495



Stewart R. Perry, Perry, Perry & Perry, Parkdale 1, Suite 270, 5401 Gamble Drive, St. Louis Park, MN  55416 (for appellant)


George G. Eck, Michael P. Jurgens, Dorsey & Whitney LLP, Suite 1500, 50 South Sixth Street, Minneapolis, MN  55402-1498 (for respondent)


            Considered and decided by Hudson, Presiding Judge, Willis, Judge, and Forsberg, Judge.


U N P U B L I S H E D   O P I N I O N


            Appellant M.E.R. challenges the district court’s grant of summary judgment to respondent D.E.R.  Because the district court did not err in finding that appellant failed to prove her prima facie case of negligence, we affirm.


            The parties were married on February 18, 1961.  During the marriage, respondent contracted condyloma acuminata, or venereal warts.  Due to the state of the relationship, the parties did not engage in sexual activities from July 1987 through the beginning of 1989.  In September 1988, on their way to London for a four-month sabbatical, respondent informed appellant that he had contracted venereal warts.  Appellant refused to engage in sexual activities until a doctor confirmed that respondent was not contagious.  Respondent referred appellant to Dr. Zatouroff in London for a consultation.  Appellant contends that Dr. Zatouroff told her that respondent was not contagious.  Based on Dr. Zatouroff’s diagnosis, appellant resumed sexual relations with respondent.  In April 1989, appellant was diagnosed with venereal warts. 

            In May 1992, the marriage was terminated.  Appellant served her complaint on December 2, 1992; there was limited discovery in 1993 and 1994.  There was no contact between the parties relating to this litigation until appellant served a supplemental discovery request on May 18, 1995.  In 1996, appellant began correspondence with her attorney inquiring about the status of a resolution to the case, and in October 2000, appellant’s attorney withdrew.  In December 2000, appellant’s current attorney gave notice of substitution of counsel and depositions were taken in July 2001.  Subsequently, the district court granted respondent’s motion for summary judgment and dismissal for failure to prosecute.


            An appellate court reviews summary judgment to determine whether there are any genuine issues of material fact and whether the district court properly applied the law.  Minn. R. Civ. P. 56.03.  “On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.”  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (citation omitted).  Summary judgment on a claim is mandatory against a party who fails to establish an essential element of that claim, if that party has the burden of proof, because this failure renders all other facts immaterial.  Carlisle v. City of Minneapolis, 437 N.W.2d 712, 715 (Minn. App. 1989) (citation omitted).   

            The district court found that appellant did not establish a prima facie case of negligent transmission of serious infectious disease because she failed to prove respondent’s breach of a legal duty.[1]  The essential elements of negligence are:

            1) That the defendant owed the plaintiff a legal duty to avoid injuring the plaintiff;

            2) That the defendant breached this duty;

            3) That the breach of duty was the proximate cause of injury to the plaintiff; and

            4) That the plaintiff suffered damages. 


R.A.P. v. B.J.P., 428 N.W.2d 103, 106 (Minn. App. 1988), review denied (Minn. Oct. 19, 1988).  The court concluded that respondent met his duty by informing appellant that he was infected.  Appellant argues that respondent breached the duty to inform her because, although he informed her about the venereal warts, he misinformed her that he was not contagious.  Appellant’s allegation that she relied on respondent’s misinformation that he was not contagious is negated by her testimony in her deposition that she did not trust him and wanted to consult a doctor prior to engaging in sexual contact.  Further, appellant also testified that a doctor instructed her that respondent was not contagious, and she relied on the doctor’s diagnosis. 

            In reviewing the record in the light most favorable to appellant, we conclude that the district court correctly found that she did not establish a prima facie case of negligent transmission of serious infectious diseases. 

            The district court also dismissed the case for failure to prosecute.  Minn. R. Civ. P. 41.02(a).  Because we conclude that summary judgment was appropriate, we need not address the failure to prosecute issue.



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

[1] Whether Minnesota courts should recognize causes of action for negligent transmission of genital warts is an issue of first impression and not addressed here.