This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-868

 

Suzette Raimann,

Appellant,

 

vs.

 

Laurence H. Anderson,

d/b/a United Skates, Rollerblading Skating Center,

Respondent.

 

Filed April 27, 2004

Affirmed

Gordon W. Shumaker, Judge

 

Mower County District Court

File No. C3-02-75

 

 

Craig M. Byram, Hoversten, Johnson, Beckmann & Hovey, LLP, 807 West Oakland Avenue, Austin, MN 55912 (for appellant)

 

Evan H. Larson, 201 Main Street South, Austin, MN 55912 (for respondent)

 

 

            Considered and decided by Shumaker, Presiding Judge; Kalitowski, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

 

GORDON W. SHUMAKER, Judge

Appellant argues that the district court erred in directing a verdict in favor of respondent, because she presented evidence sufficient for the jury to determine whether respondent’s negligence caused her rollerskating accident.  Because appellant failed to establish a prima facie case of negligence and the district court properly directed a verdict in favor of respondent, we affirm.

FACTS

On November 10, 2000, appellant Suzette Raimann, an experienced rollerskater, and her friend Cristin Griffey took their children to the United Skates Rollerblading Skating Center in Brownsdale, Minnesota.  Respondent Laurence Anderson owns the skating center.  Griffey was an employee of the skating center.  While rollerskating, appellant and her acquaintance Carol Conner observed that there were discolored patches on the surface of the skating floor and these patches had a wavy surface.  Appellant testified that she tried to avoid the patches, but when she skated over them, she noticed waves, bumps, and that her skate reacted differently to the surface. 

Appellant had been skating for approximately one hour when the skate announcer called a backward skate.  Appellant testified that she began skating backward and after circling the rink three or four times, she suddenly stopped because something prevented her skate from rolling.  She fell and broke her wrist.  Appellant testified that this fall was unlike times in the past when she has fallen because she lost her balance. 

Conner, who was teaching her granddaughter how to skate backward at the time of appellant’s fall, was skating behind appellant so that she was facing her.  She testified that appellant was skating smoothly until she suddenly stopped and fell.  According to Conner, appellant did not flail or act like she lost her balance.   But Griffey testified that appellant flailed and attempted to catch herself as she fell, although she later testified that appellant did not act like she lost her balance.  According to appellant and Griffey, a dip, a change in the surface from the floor to a fixed patch, caused appellant’s accident. 

Conner testified that she inspected the skating surface after appellant’s accident.  While she noticed patches of discoloration, she did not testify that she observed any dip in the skating surface.  Conner testified that the only thing she saw on the skating surface was a small rubber ball.  She took the ball to respondent and told him that the ball could have caused the accident.  But when Conner told appellant about the ball, appellant told her that the ball had been in her pocket at the time of the accident.  Griffey also testified that she initially thought the rubber ball had caused appellant’s accident, but after observing the arc of the ball, she believed that the ball had fallen out of appellant’s pocket after the accident.

Griffey testified that she went to the skating center the day after the accident and observed a small hand-held sander in the carpeted area of the center.  She also testified that she asked respondent if he was trying to fix the floor, and he said, “Well, kinda.”  But on cross-examination, Griffey admitted that she had earlier stated that respondent told her he was fixing “something,” but would not specify whether he was fixing the floor.  Griffey further testified that she then inspected the skating surface and noticed that it had sanding marks in the surface, including in the area where appellant fell.  But Griffey also testified that she first observed the dip in the skating surface on this day.  In addition, respondent testified that he did not sand or repair the skating floor in November 2000. 

At trial, respondent testified that he installed the floor of the skating rink in 1986.  The floor consists of sanded and sealed plywood covered with Rollerboard, a pressed material made for skating floors, and coated with urethane.  Over time, the urethane coat wears away and scratches in high-traffic areas.  Respondent testified that when this occurs he sands the area and feathers the edges so the surface is smooth and then applies a coat of urethane.  Respondent further testified that he repairs the floor only in the summer months because urethane cures properly only with a floor temperature of 70 degrees.  According to respondent, during the busy winter season, he cleans the skating floor after each session, but during the slow summer season, he cleans the floor after approximately three sessions.  Respondent also testified that the patches of discoloration on the skating surface indicate places where the urethane coat has eroded or where he has repaired the floor.

Appellant filed suit alleging that respondent was negligent in failing to properly inspect, maintain, and repair the skating surface.  At the close of appellant’s case, respondent moved for a directed verdict.  The district court granted respondent’s motion, concluding that (1) respondent’s duty to appellant was partly defined by the doctrine of primary assumption of risk; (2) even if respondent owed appellant a duty, appellant failed to establish he breached that duty; and (3) appellant failed to establish that respondent’s negligence caused her accident.

D E C I S I O N

“On appeal from a directed verdict, we make an independent determination of whether the evidence was sufficient to present a fact question to the jury.  In making such a determination, we review the evidence in a light most favorable to the nonmoving party.”  Boone v. Martinez, 567 N.W.2d 508, 510 (Minn. 1997) (citation omitted).  “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.”  Claflin v. Commercial State Bank, 487 N.W.2d 242, 247 (Minn. App. 1992), review denied (Minn. Aug. 4, 1992).  “[T]he district court must accept as true the evidence favorable to the adverse party and all reasonable inferences which can be drawn from that evidence.”  Id.

Appellant argues that the district court erred in directing a verdict in favor of respondent because she presented evidence sufficient for the jury to decide whether a dip in the skating surface caused her accident.  In a claim for negligence, a plaintiff must prove:  (1) the defendant owed a legal duty to the plaintiff; (2) the defendant breached that duty; (3) that breach was the proximate cause of plaintiff’s injury; and (4) damages.  Gilbertson v. Leininger, 599 N.W.2d 127, 130 (Minn. 1999).  “Where the evidence shows that a purported theory of causation is no more plausible than another theory, the [plaintiff] has not established a prima facie case, and a directed verdict is proper.”  Sauer v. State Farm Mut. Auto. Ins. Co., 379 N.W.2d 213, 215 (Minn. App. 1985), review denied (Minn. Feb. 19, 1986).

Although a plaintiff may establish a prima facie case by circumstantial evidence, it cannot be founded upon speculation and conjecture about causation.  Elias v. City of St. Paul, 350 N.W.2d 442, 444 (Minn. App. 1984), review denied (Minn. Oct. 1, 1984).  “[C]ircumstantial evidence must be more than simply consistent with [a party’s] theory of causation; reasonable minds must be able to conclude from the circumstances the theory adopted outweighs and preponderates over opposing theories.”  Schweich v. Ziegler, Inc., 463 N.W.2d 722, 730 (Minn. 1990). 

The evidence in the case left the jury to speculate as to the cause of appellant’s fall.  The evidence shows that no one, not even appellant, noticed a dip in the skating surface on the day of her accident in the area where appellant fell.  Instead, Griffey merely testified that she observed a dip in the skating surface the following day, although she also testified that she noticed sanding marks in the area where appellant fell.  And Conner testified that when she inspected the floor shortly after the accident to look for something that would have made appellant fall, she only discovered a small rubber ball.  The evidence also indicates that while appellant is an experienced rollerskater, except for the day of her accident and one other time, appellant had not skated for several years.  The jury was left to guess as to whether the floor surface, the ball, or appellant’s manner of skating caused the fall.  Thus, the jury would have had to impermissibly guess about what caused appellant’s accident.  See id. at 729 (stating that if the evidence allows a trier of fact to do no more than guess as to causation, the plaintiff has failed to prove that defendant’s breach caused the injury).  Because appellant failed to establish a prima facie case of negligence, the district court properly directed a verdict in favor of respondent.

Because we affirm the district court’s judgment on the issue of causation, we need not address the doctrine of primary assumption of the risk or appellant’s remaining arguments.

Affirmed.