This opinion will be unpublished and

may not be cited except as provided by

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






Rita DiRico, as Trustee for the next of

kin of Charles Barker, deceased,





RESTART, INC., d/b/a Charlton House,



Filed April 13, 2004

Reversed and remanded

Halbrooks, Judge



Dakota County District Court

File No. CX-01-10896



Vincent J. Moccio, Philip Sieff, Robins Kaplan Miller & Ciresi, L.L.P., 2800 LaSalle Plaza, 800 LaSalle Avenue, Minneapolis, MN 55402-2015 (for appellant)


Peter G. Van Bergen, Kathleen M. Ghreichi, Cousineau, McGuire & Anderson, Chtd., 600 Travelers Express Tower, 1550 Utica Avenue South, Minneapolis, MN 55416-5318 (for respondent)



            Considered and decided by Halbrooks, Presiding Judge, Willis, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N


Appellant Rita DiRico, as trustee for the next of kin of Charles Barker, deceased, challenges the district court’s order granting summary judgment to respondent Restart, Inc. d/b/a Charlton House, an adult foster-care facility where Barker died on August 19, 2000.  Appellant argues that the district court erred in concluding that Restart’s conceded negligence could not, as a matter of law, have proximately caused Barker’s death.  Because we conclude that there are genuine issues of material fact, we reverse the summary judgment and remand the matter for trial.


Charles Barker became severely disabled as a result of a traumatic brain injury in 1982, following which he was unable to get out of bed or walk without assistance.  He also had difficulty verbalizing and communicated with the assistance of an electronic device that he could manipulate to speak for him.  But record evidence also demonstrates that Barker “was capable of letting people know what was on his mind[,] . . . telling people when he was angry and when he was upset or if something was wrong. . . .  He could speak very loudly.  He could scream, holler, curse, all the things that everybody else can do.” 

In September 1998, Barker began living at Charlton House, a residential adult foster-care facility consisting of eight individual bedrooms, four in each of two adjacent wings separated by common, kitchen, and staff areas.  In each wing, the four bedrooms opened onto a common hallway.  Barker’s initial placement agreement provided that he would have 24-hour supervision including overnight “awake staff.” 

At the time Barker moved into Charlton House, the facility was equipped with an intercom system – installed in February 1998 – that consisted of a central speaker located near the facility’s kitchen and speaker boxes in each patient’s room.  A patient wishing to use the intercom to speak or listen to a staff member located at the central intercom unit had to hold down a button on the speaker box in the room and turn a volume knob while speaking or listening.  It is undisputed that at the time Barker began living at Charlton House, facility staff, including Carol Fury-Fistman, the facility’s program service administrator, knew that the intercom system did not function as a continuous monitoring system.  It is also undisputed that once Barker was in bed for the night, he was unable to seek assistance by means of the intercom, because he was unable to lower his bedrail, get out of bed, walk across the room, turn the volume knob, and hold the intercom button down while speaking. 

In approximately May 1999, Charlton House notified its residents that it intended to change its monitoring policy by replacing the overnight awake staff with an overnight “asleep staff” – that is, an on-site staff that slept in the common areas of the facility but would not remain awake throughout the night to monitor patients.  Members of Barker’s family, including Barker’s sister, appellant Rita DiRico, met with Charlton House supervisors to discuss appellant’s desire that Barker continue to receive an adequate level of monitoring.  Appellant agreed to an overnight asleep staff “as long as there was a monitor to the overnight staff.  Whoever was sleeping, they could hear [Barker] if he needed any help.”  Appellant was aware of the intercom system already in place in Charlton House, but specified that if that system “wasn’t sensitive enough, there better be something that when he rolls over and breathes heavy, they sure as heck better hear him.”  In deposition testimony, appellant described the meeting this way:

We talked about there being a monitor like a baby monitor.  That was my understanding that was being put in.  If the monitor that they had in there was not sufficient, my understanding was that once they went to an asleep staff, they were putting in a monitor . . . . 


. . . .


I did not feel safe with [Barker] being somewhere where he was asleep in a room far from everyone else not having a sensitive monitor on him.  We walked away from that meeting with the understanding that that would happen.


Appellant was told that Barker “would have a monitor on at night that would go right to the overnight staff so they could hear him where they were sleeping.” 

In September 1999, Barker and Charlton House entered into an Individual Resident Placement Agreement (Agreement), which provided that Barker would receive “24-hour care[,] overnight asleep staff[, and] monitors in room to overnight staff.”  Charlton House does not dispute that Barker required monitoring on a 24-hour basis.  At the time, Charlton House employees knew that the existing intercom system was not intended to function as a 24-hour continuous monitor and frequently did not function as it was supposed to even when properly operated.  Nonetheless, Charlton House represented to Barker and his family – orally and in a document signed by Carol Fury-Fistman – that the intercom system would function as a “continuous monitoring system” and would be “left open for [Charlton House] staff to monitor [Barker] for safety.”  Respondent was aware that Barker’s family believed that he would be receiving 24-hour monitoring. 

Fury-Fistman knew that the intercom system in place at Charlton House would not provide the level of monitoring required to meet Barker’s needs.  She was aware that a portable monitor was already in use at Charlton House in the wing of the facility opposite Barker’s wing.  Fury-Fistman’s repeated requests for a baby monitor for the hallway outside Barker’s room were repeatedly “turned down” by her superiors at Charlton House, who told her that residents desiring such monitors “could buy them if they needed them.”  Barker’s family was never informed either that the existing intercom system did not provide the 24-hour monitoring they desired or that they were responsible for purchasing a baby monitor. 

On the evening of August 18-19, 2000, Patience Adegbile, the overnight asleep staff member for Barker’s wing of Charlton House, checked on Barker at 10:00 p.m.  In deposition testimony, Adegbile stated that at that time there was no monitoring device of any kind in Barker’s room.  She then shut the door and went to sleep on the couch in the common area between the two wings of the facility.  Adegbile, who describes herself as a “[v]ery, very light sleeper,” heard no sounds during the night. 

When Adegbile went to wake Barker at 7:20 a.m. on August 19, she found him dead.  His body was wedged between the mattress and the right bed rail, with his right arm and head hanging over the right side of the bed.  She called to a co-worker, who assisted her in moving the body to the middle of the mattress.  Before calling 911, 35 minutes later, Adegbile and a co-worker covered Barker’s body and cleaned his face of a yellowish fluid that had drained from his nose toward his scalp while his head had been inverted. 

The Dakota County Coroner’s investigative report, completed by Gary Kaldun at the scene of Barker’s death, concluded that Barker died from “apparent positional asphyxia.”  Kaldun’s photographs of the scene show that two remote controls, as well as Barker’s pillow and foam cushion – all of which he typically kept on the bed with him – were on the floor next to the bed.  The photographs also show scratches on Barker’s arm and that Barker wore a watch with a metal band. 

When appellant arrived on the scene, Kaldun told her “that it appear[ed Barker] struggled for his life.  That he had thrown the TV controls against the door to try to get someone’s attention.”  The August 2000 autopsy report, completed by Lindsey Thomas, M.D., stated that Barker had apparently died from positional asphyxia.  Dr. Thomas believed that Barker had slumped over in his bed, with his mouth pressed against the mattress, and had asphyxiated in between one and four minutes. 

            In June 2002, appellant brought a wrongful-death action against respondent, alleging, among other things, that respondent’s negligent failure to adequately monitor Barker was the proximate cause of his death.  In April 2003, appellant moved to amend the complaint to include a claim for punitive damages; the motion was granted. 

In April 2003, Dr. Thomas, apparently responding to a request from defense counsel, sent defense counsel an “amended autopsy report” accompanied by a letter stating:

There is no evidence that at the time of his death, Mr. Barker struggled, in that he has no significant injuries and, other than a few items on the floor at the side of the bed, nothing is disrupted around his bed.  I believe when Mr. Barker was in the position I described, it is unlikely that he would have made any sounds, as his mouth would have been pressed against the mattress.


In May 2003, Dr. Lindsey submitted an affidavit to appellant’s counsel stating:

In making the statement I did in the [April 2003] letter, . . . I did not mean that Mr. Barker did not struggle or [make] any sounds at any time before his death on the morning of August 19, 2000.  I simply meant that I did not believe that Mr. Barker struggled or made any sounds after his face became pressed into or against his mattress in the manner which caused his death.  He may have made sounds before his face became pressed in the mattress and he died on August 19, 2000.


Respondent moved for summary judgment; respondent admitted that it had acted negligently in failing to continuously monitor Barker, but argued that appellant had failed to establish a causal connection between that negligence and Barker’s death.  The district court granted respondent’s motion, reasoning that in spite of respondent’s negligent failure to install the agreed-upon monitor, “there is no evidence that the noise [Barker] might have [sent through a baby monitor] would have awakened sleeping staff.”  The court excluded as inadmissible hearsay statements made to appellant by coroner’s investigator Gary Kaldun – who died before appellant filed her action – suggesting that Barker had apparently thrown his remote controls toward the door as he struggled for his life.  The court concluded that, although circumstantial evidence can be sufficient to establish a prima facie case of negligence, “there simply is no non-speculative evidence supporting [appellant’s] claim that the failure to place a monitor in Mr. Barker’s room caused his death.”  This appeal follows. 


Summary judgment is proper when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.”  Minn. R. Civ. P. 56.03.  “Summary judgment should not be granted if reasonable persons might reach different conclusions after reviewing the evidence.”  Jonathan v. Kvaal, 403 N.W.2d 256, 259 (Minn. App. 1987), review denied (Minn. May 20, 1987).

On an appeal from summary judgment, we ask whether there are any genuine issues of material fact in dispute and whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  No genuine issue of material fact exists “‘[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.’”  DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986)).  We review the district court’s interpretation of the law de novo, Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn. 1990), view the evidence in the light most favorable to the party against whom summary judgment was granted, and accept as true the factual testimony produced by the non-movant.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

Facts, inferences, and conclusions that may be drawn by a jury are fact issues which may not be resolved by the district court.  Rathbun v. W.T. Grant Co., 300 Minn. 223, 230, 219 N.W.2d 641, 646 (1974).  The fact “that it is unlikely [a party] will prevail [at] trial . . . is not a sufficient basis for refusing [that party a] day in court with respect to issues which are not shown to be sham, frivolous, or so unsubstantial that it would obviously be futile to try them.”  Whisler v. Findeisen, 280 Minn. 454, 456, 160 N.W.2d 153, 155 (1968). 

Negligence issues such as causation are “usually a question of fact and seldom can be disposed of on a motion for summary judgment.”  Hamilton v. Indep. Sch. Dist. No. 114, 355 N.W.2d 182, 184 (Minn. App. 1984); see also Ill. Farmers Ins. Co. v. Tapemark Co., 273 N.W.2d 630, 633-34 (Minn. 1978).  Nonetheless, the district court may grant summary judgment to the defendant in a negligence action “when the record reflects a complete lack of proof on any of the four elements necessary for recovery: (1) the existence of a duty of care, (2) a breach of that duty, (3) an injury, and (4) the breach of that duty being the proximate cause of the injury.”  Louis v. Louis, 636 N.W.2d 314, 318 (Minn. 2001). 

To withstand a defendant’s motion for summary judgment, a negligence claimant must make a prima facie case of negligence, which

simply means one that prevails in the absence of evidence invalidating it.  Prima facie negligence means that evidence of negligence which, unexplained or uncontradicted and standing alone, appears to be sufficient to establish the fact.  In other words, it is evidence which suffices to establish the fact unless rebutted, or until overcome, by other evidence.


Tousignant v. St. Louis County, 615 N.W.2d 53, 59 (Minn. 2000) (quoting Trudeau v. Sina Contracting Co., 241 Minn. 79, 87, 62 N.W.2d 492, 498 (1954)).  On summary judgment, a negligence claimant is “not bound to prove more than enough to raise a fair presumption of negligence on the part of defendant and a causal connection between that negligence and his own injury.”  Sandvik v. Jammes, 281 Minn. 85, 89, 160 N.W.2d 700, 704 (1968). 

Here, because respondent acknowledged its duty owed to appellant and a breach of that duty, appellant “only [needed to] demonstrate a plausible causal linkage between a breach of duty and . . . her injuries to allow [her claim] to be presented to a jury.”  Jonathan, 403 N.W.2d at 260.  “Evidence to establish negligence need not be direct and positive, since the fact of negligence in any given case is susceptible of proof by evidence of circumstances bearing more or less directly upon the facts.”  Sandvik, 281 Minn. at 89, 160 N.W.2d at 703-04. 

To withstand respondent’s motion for summary judgment here, appellant was required – under Tousignant, Jonathan, and Sandvik – to present circumstantial evidence that respondent’s negligent failure to provide Barker with a continuous bedroom monitor – equal in sensitivity to a baby monitor – plausibly caused Barker’s death.  The district court stated the causation issue as whether “Mr. Barker [could] have sent enough noise through a baby monitor to awaken asleep staff” and concluded that Barker could not have, stating that although Barker “was capable of making and did make some noise . . . there is no evidence that the noise he might have made would have awakened sleeping staff.” 

Appellant argues that the district court erred by failing to sufficiently consider the circumstantial evidence of causation and by failing to consider the evidence in the light most favorable to appellant in reaching its conclusion that Barker did not struggle or make noise prior to his death.  We agree, and conclude that the record contains sufficient circumstantial evidence of causation to warrant submitting the matter to a jury.  First, there is deposition testimony from Carol Fury-Fistman, the Charlton House program service administrator, that Barker “could scream, holler, curse, all the things that everybody else can do.”  Second, the overnight staff person on duty the night of Barker’s death described herself as a “[v]ery, very light sleeper.”  Third, Barker’s remote control devices, which he typically kept on the bed, were on the floor next to the bed; a jury could reasonably infer that a functioning continuous monitor would have transmitted the sound of the devices falling – or being thrown – to the floor.  Fourth, the coroner’s investigator’s photographs show that Barker wore a watch with a metal band; a jury could reasonably infer that a continuous monitor would have transmitted the sound of the watch striking the metal bed rail. 

Finally, the evidence demonstrates that Adegbile and a co-worker, both agents of respondent, repositioned and cleaned Barker’s body after discovering that he was dead.  Appellant contends that she is entitled to a jury instruction that the jury is authorized to infer that had respondent not disturbed the scene, the evidence would support her theory that Barker had struggled prior to his death.  See Wajda v. Kingsbury, 652 N.W.2d 856, 864 (Minn. App. 2002) (holding that the district court appropriately imposed sanctions in the form of a jury instruction permitting an adverse inference against the party who spoliated evidence), review denied (Minn. Nov. 19, 2002).  We leave that determination to the district court on remand.

The district court concluded that appellant presented no “non-speculative” evidence in support of the claim that the failure to place a monitor in Barker’s room caused his death.  It is unclear what the court means by “non-speculative” in this context, particularly as the court cites to no legal authority anywhere in its order and memorandum.  But as appellant correctly argues, circumstantial evidence of causation is sufficient to establish a prima facie case, and the fact that proof of causation is inferred from circumstantial evidence does not render that proof inadmissibly speculative.  Indeed, the jury, as the finder of fact, will necessarily speculate in determining the propriety of inferring causation from circumstantial evidence:  “[w]henever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference.”  Lavender v. Kurn, 327 U.S. 645, 653, 66 S. Ct. 740, 744 (1946).

The district court also states in its memorandum that “[t]here is no reason to believe that an awake staff without a monitor would have heard anything [in Barker’s room].”  The purpose of this statement is unclear insofar as the parties agree that the proper question before the court was what an asleep staff would have heard with the assistance of the monitor that respondent had promised – but never provided – to Barker’s family.  We further observe that the court’s factual inference based on the evidence of Barker’s ability to vocalize is inappropriate in the context of considering a motion for summary judgment. 

Respondent, relying almost exclusively on the April 2003 letter from Dr. Thomas to defense counsel stating that there is no evidence that Barker struggled or made noise before he died, argues that there is no evidence Barker could have made any sounds once he became trapped in the position in which he asphyxiated and that there is, therefore, no plausible causal link between respondent’s failure to monitor Barker and his death.  Respondent does not address Dr. Thomas’s May 2003 letter stating that Barker “may have made sounds before his face became pressed in the mattress and he died.”  This evidence, taken in the light most favorable to appellant, is sufficient to allow an inference of a causal link between respondent’s negligence and the harm caused to Barker.

Respondent also argues that appellant presented no proof allowing a jury to infer that the absence of a monitor caused Barker’s death.  But appellant’s theory is precisely that a jury could reasonably infer that, had a monitor been in the room and functioning as respondent claimed it would, the asleep staff would have been alerted to Barker’s distress and come to his assistance.  And the record contains evidence that Barker was able to vocalize loudly and may have produced other noises before dying.

If the circumstantial evidence in a negligence case furnishes “a reasonable basis for the inference by the jury of the ultimate fact that the alleged negligence was the cause of the injury complained of, it is sufficient proof of the causal connection to sustain a verdict.”  Majerus v. Guelsow, 262 Minn. 1, 7, 113 N.W.2d 450, 455 (1962).

Where a cause is shown that might produce a given accident, and the fact appears that an accident of that particular character did occur, it may be a warrantable inference, in absence of a showing of other causes, that the one known was the operative agency in bringing about the result.


Id.  We conclude that there is sufficient circumstantial evidence in the record from which a jury could infer that respondent’s failure to continuously monitor Barker prevented the asleep Charlton House staff from hearing any noise he might have made prior to his death and from coming to his assistance.  We therefore hold that appellant did make a prima facie case of causation and that the matter must be remanded to the district court for a trial on the merits.

Finally, appellant argues that the district court erred by excluding as inadmissible hearsay statements allegedly made to her by Gary Kaldun, the coroner’s investigator who died prior to the hearing on respondent’s motion.  Because we are remanding the matter for trial, we do not address this issue.  On remand, the district court can revisit it in the context of the trial.

            Reversed and remanded.



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