This opinion will be unpublished and

may not be cited except as provided by

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






Shelley Hanson,


Friends of Minnesota Sinfonia,
d/b/a Minnesota Sinfonia, et al.,


Filed June 8, 2004

Affirmed; motion to strike denied

Minge, Judge


Hennepin County District Court

File No. 02-001442



Jill Clark, Jill Clark, P.A., 2005 Aquila Avenue North, Golden Valley, MN 55427 (for appellant)


Frederick E. Finch, Matthew J. Franken, Bassford Remele, P.A., 33 South Sixth Street, Suite 3800, Minneapolis, MN 55402 (for respondents)


            Considered and decided by Minge, Presiding Judge; Shumaker, Judge; and Crippen, Judge.*


U N P U B L I S H E D  O P I N I O N


MINGE, Judge


            Appellant Shelley Hanson challenges the district court’s grant of summary judgment in favor of respondents on her various claims, arguing that (1) she was an “employee” for the purpose of disability discrimination claims under the Minnesota Human Rights Act; (2) her federal action is not res judicata for certain portions of her state action; (3) she can maintain an action for business disability discrimination under the Minnesota Human Rights Act; (4) her defamation claim was proper; (5) her invasion of privacy claim was proper; (6) her claim for interference with prospective business relationships was proper; (7) her breach of contract and promissory estoppel claims were not barred by collateral estoppel; (8) her negligent infliction of emotional distress claim was proper; (9) the district court erred in considering respondents’ second summary judgment motion and not considering her motion for reconsideration; and (10) she should be allowed to seek punitive damages.  We affirm.



            Appellant Shelley Hanson plays the clarinet professionally.  Respondent Friends of Minnesota Sinfonia is a non-profit corporation that hires musicians to perform concerts.  Respondent Jay Fishman is a co-founder of the Sinfonia and serves as its executive director, artistic director, and conductor.  Appellant and other Sinfonia performers contract to play with the Sinfonia as their individual schedules allow, are paid on a per activity basis, and otherwise perform and work in the community.  Appellant, the other Sinfonia performers, and Fishman are all members of the American Federation of Musicians.  However, the union does not contract on their behalf with the Sinfonia.

            The Sinfonia held a rehearsal on March 16, 1999.  Fishman arrived early to set up the lighting, including lights supported by tripod legs with poles about six feet tall.  Fishman placed some of these lights on a utility table that was located near the back of the stage.  At the beginning of rehearsal, when Fishman went back to adjust the lights, one fell from the table and hit appellant, who was sitting with her back to the lights.  Appellant told Fishman that she thought she suffered a concussion, but she claims that Fishman demanded that she finish the rehearsal anyway.

            Appellant participated in a few Sinfonia concerts after the incident, but claims that the effects of the accident impaired her judgment and her performing ability.  Thereafter, appellant took a medical leave for the month of April and found replacements for her part in the concerts in May.  Appellant claims she only told three people about her injuries, two were close friends who also played in the Sinfonia, one of whom was appellant’s union representative, and the third was Mary Bahr, the Sinfonia personnel manager who helped find replacements and handled medical leave requests.

            During appellant’s leave, appellant was informed that Fishman had replaced her.  When appellant inquired, she was informed that her position was terminated and that a letter from Fishman was in the mail.  The letter, dated May 19, 1999, stated the following:

I am sorry to hear that your recovery is taking so long.  When I asked Mary Bahr to hire you for the summer dates, I had anticipated that you would be completely well by that time.  I understand that is not the case.


Because of this, I feel very uncomfortable offering you work, until we are certain that you are 100%.  Therefore, we must regretfully rescind our offer of work for the summer.  Please remove all Sinfonia bookings from your calendar.  When you are well, please call me, and we will talk. 


            After receiving the letter, appellant contacted her union representative.  The union president instructed all board members and Fishman to keep the matter confidential.  At a Sinfonia rehearsal on June 9, 1999, that was also attended by several individuals who hire performers for various entities and events, Fishman read his May 19 letter aloud because he claimed that there were rumors that he had “fired” appellant and he wished to clarify the situation.  Appellant claims Fishman read the letter maliciously to discourage others from hiring her by creating the impression that she was unable to perform.  She further claims that this public reading of the letter caused her extreme emotional distress. 

Appellant did not contact Fishman to inquire about her job when she was able to resume playing.  Instead, she filed a grievance with the Twin Cities Musicians’ Union Local #30-73 of the American Federation of Musicians, claiming that her contract had been improperly terminated.  The local union board of directors reviewed appellant’s grievance letter and, with the consent of all parties, began an arbitration procedure that included an evidentiary hearing before the local union board.  Although the local board initially found the termination violated three union bylaws and ruled in appellant’s favor, after a series of appeals and reviews, the final decision of the International Executive Board of the American Federation of Musicians was that Fishman’s rescission letter and appellant’s “termination” complied with union bylaws. 

            In addition to the proceeding within the union, appellant filed a lawsuit against Fishman and Sinfonia in federal court, alleging that Fishman and Sinfonia engaged in disability discrimination under the Americans with Disabilities Act (ADA) and the Minnesota Human Rights Act (MHRA), and asserting other state claims.  The U.S. District Court for Minnesota determined that appellant was not an employee of Sinfonia, but rather an independent contractor, it granted summary judgment in favor of respondents on the ADA and MHRA claims; and it dismissed the remaining state-law claims without prejudice.  Hanson v. Friends of Minn. Sinfonia, 181 F. Supp. 2d 1003, 1009-10 (D. Minn. 2001), aff’d, 322 F.3d 486 (8th Cir. 2003), cert. denied, 124 S. Ct. 469 (2003). 

            After appellant’s claims were dismissed by the federal district court, appellant commenced this state court action asserting claims for disability discrimination under the MHRA, negligent infliction of emotional distress, invasion of privacy, defamation, interference with prospective business relations, breach of contract, and promissory estoppel.  No claim has been made for physical injuries caused by the fallen light.  In October 2002, the parties filed cross-motions for summary judgment and appellant moved for leave to amend her complaint to seek punitive damages.  The district court granted summary judgment against appellant on her claims for disability discrimination under the MHRA, negligent infliction of emotional distress, invasion of privacy, defamation, and interference with prospective business relations.  The district court denied summary judgment on appellant’s claims for breach of contract and promissory estoppel.  The district court also denied appellant’s request to amend her complaint to include punitive damages.

            Respondents filed a motion to reconsider the denial of summary judgment on the breach of contract and promissory estoppel claims.  Appellant moved to strike this motion, but the district court denied appellant’s motion and granted summary judgment for respondents on those claims.  Appellant then brought a motion to reconsider the grant of summary judgment that disposed of her claim for negligent infliction of emotional distress, and submitted additional affidavits in support of the motion.  The district court denied appellant’s motion.  This appeal was taken from the final judgment.  Respondents argue that the affidavits submitted with appellant’s motion to reconsider are not properly before us on appeal and moves to strike them.



On appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  The standard of review is de novo.  Id.  A motion for summary judgment shall be granted 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.  “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).  A genuine issue for trial must be established by substantial evidence.  DLH, Inc. v. Russ, 566 N.W.2d 60, 69-70 (Minn. 1997). 

            I.          Employee Disability Discrimination


The first issue is whether appellant has a valid claim for employment discrimination under the MHRA.  Minn. Stat. § 363.03, subds. 1, 6, and 7 (2002).[1]  Appellant argues that she was an “employee” of Sinfonia and that the district court erred in holding that the decision of the federal district court was res judicata on this issue.  This determination is critical to appellant’s case because claims of employment discrimination under the MHRA can only be brought by an employee.  See Farrington v. City of Richfield, 488 N.W.2d 13, 15 (Minn. App. 1992). 

The doctrine of res judicata applies and bars a subsequent claim when (1) the earlier claim involved the same claim for relief; (2) the earlier claim involved the same parties or those in privity with them; (3) there was a final judgment on the merits; and (4) the estopped party had a full and fair opportunity to litigate the matter.  State v. Joseph, 636 N.W.2d 322, 327 (Minn. 2001).  Applying the doctrine of res judicata in state appellate court to a prior federal court decision is proper.  See Marshall v. Inn on Madeline Island, 631 N.W.2d 113, 119-20 (Minn. App. 2001) (applying res judicata analysis), review denied (Minn. Sept. 25, 2001).  “We review de novo whether the doctrine of res judicata can apply to a given set of facts.”  Erickson v. Comm’r of Dep’t of Human Servs., 494 N.W.2d 58, 61 (Minn. App. 1992).  “If the doctrine applies, the decision whether to actually apply it is left to the discretion of the [district] court.”  Id.

The federal suit involved the same MHRA claim as appellant asserts in her state suit and the same issue regarding whether appellant is an employee or an independent contractor.  See Hanson v. Friends of Minn. Sinfonia, 181 F. Supp. 2d 1003, 1009 (D. Minn. 2001), aff’d, 322 F.3d 486 (8th Cir. 2003), cert. denied, 124 S. Ct. 469 (2003).  Appellant had a full and fair opportunity to litigate the matter in federal court.  The record reflects that appellant opposed the federal summary judgment motion brought by respondents.  The doctrine of res judicata applies, and appellant is barred from challenging her status as an independent contractor.  Because appellant was an independent contractor, and not an employee, appellant’s claims under Minn. Stat.         §§ 363A.08, subds. 1-6, .14, and .15 (Supp. 2003) fail as a matter of law, and the district court did not err in granting summary judgment as to these state claims. 

Appellant had maintained that the district court in this case improperly applied res judicata because federal appeals were still pending.  Indeed, the United States Supreme Court denied certiorari in November 2003, thus ending all rights of appeal.  However, the law is clear.  “Even where an appeal has been taken, the matters determined by the judgment remain res judicata until the judgment is reversed.”  Schoonmaker v. St. Paul Title & Trust Co., 152 Minn. 94, 98, 188 N.W. 223, 224 (1922).  We determine that the district court did not err, but properly concluded that res judicata applied.

II.  Business Disability Discrimination

Appellant argues that even if she is not considered an “employee” under the MHRA, she can maintain an action for disability discrimination under Minn. Stat.           § 363A.17(c) (Supp. 2003), which makes it an unfair discriminatory practice for a person who is engaged in a trade or business to refuse to do business or contract on the basis of a person’s disability.  A disability is defined as “any condition or characteristic that renders a person a disabled person.”  Minn. Stat. § 363A.03, subd. 12 (Supp. 2003). 

A person is disabled for purposes of the MHRA if he or she “(1) has a physical, sensory, or mental impairment which materially limits one or more major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment.”  Id.  Work is a major life activity within the meaning of the MHRA.  See Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 543 (Minn. 2001).  Furthermore, the way reasonable people treat a condition also defines an impairment.  See Sigurdson v. Carl Bolander & Sons Co., 532 N.W.2d 225, 228 (Minn. 1995) (“Impairments that are not materially limiting but are perceived and treated as such will be deemed to be materially limiting.”).  However, not every impairment is actionable; the extent of its impact must be determined.  See Howard v. Navistar Int’l Transp. Corp., 904 F. Supp. 922, 930 (E.D. Wis. 1995) (stating that the issue is whether employer regarded impairment as substantially limiting plaintiff’s ability to perform major life activity).

Here, appellant has not contended she is totally unable to work, only that her ability to perform was limited by her condition for a short period of time.  Although no Minnesota cases have addressed whether partial limits constitute a disability, federal courts have.  In this regard, our courts have customarily followed and applied federal law to various aspects of discrimination claims.  See Sigurdson, 532 N.W.2d at 228; see also Danz v. Jones, 263 N.W.2d 395, 399 (Minn. 1978) (adopting McDonnell Douglas test).  Recent federal cases interpreting the ADA have consistently held that a disability must be permanent or long term to qualify a person for protection against discrimination.  See Toyota Motor v. Williams, 534 U.S. 184, 198, 122 S. Ct. 681, 691 (2002); Mellon v. Fed. Express Corp., 239 F.3d 954, 957 (8th Cir. 2001).  In other words, in order to be “regarded as” having such an impairment, one must also regard the impairment to be permanent or long term.  See Fuqua v. Unisys Corp., 716 F. Supp. 1201, 1207 (D. Minn. 1989) (stating that employer does not perceive employee disabled under MHRA merely by determining employee is unable to temporarily satisfy requirements of a single job position).

Appellant argues that she was impaired because Fishman knew that she was injured by the lights, because Fishman knew that she requested approximately two months off from playing in concerts, and because Fishman treated her as having an impairment that materially limited her work.  She points to Fishman’s decision to remove her from the relatively easy summer performances, which he termed “kiddie concerts,” to establish that she was treated as being materially impaired.  Regardless, we note that her claim of disability is for a limited timeframe and involves a limited degree of impairment.  Toyota, Mellon, and Fuqua establish that temporary and limited impairments do not support disability determinations under the ADA.  Thus, the Act requires that the disability be extensive, not just a partial limit on ability to function.  We conclude that appellant has not established a prima facia case of disability under the MHRA. 

The only other evidence of discrimination was appellant’s claims of Fishman’s ulterior motives.  Motives are highly speculative.  Appellant has not provided substantial evidence to show a genuine issue of material fact that she had or was perceived by respondents as having a permanent or long-term impairment that limited one or more major life activities.  This aspect of her claim is not sufficient to withstand a summary judgment motion.  For these reasons, we conclude the district court correctly granted summary judgment on this claim.

            III.       Defamation


The next issue is whether the district court erred in granting summary judgment on appellant’s defamation claim.  To establish a claim for defamation in Minnesota, a plaintiff must show that the defendant made a statement that was false and communicated it to someone besides the plaintiff and that it tended to harm the plaintiff’s reputation.  Richie v. Paramount Pictures Corp., 544 N.W.2d 21, 25 (Minn. 1996).  Defamation by implication occurs “if the defendant juxtaposes a series of facts so as to imply a defamatory connection between them, or creates a defamatory implication by omitting facts.”  Diesen v. Hessburg, 455 N.W.2d 446, 450 (Minn. 1990) (citation and quotation omitted).  “Slanders affecting the plaintiff in his business, trade, profession, office or calling are slanders per se and thus actionable without any proof of actual damages.”  Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980).

Appellant’s defamation claim is based on the statements made in Fishman’s letter to appellant, which was later read aloud at the Sinfonia rehearsal.  To be actionable, a comment must be reasonably interpreted as stating facts that can be proven false, not opinions.  Metge v. Cent. Neighborhood Improvement Ass’n, 649 N.W.2d 488, 496 (Minn. App. 2002).  Whether a statement is factual or opinion is a question of law.  Lund v. Chicago & Northwestern Transp. Co., 467 N.W.2d 366, 369 (Minn. App. 1991), review denied (Minn. June 19, 1991).  A four-factor test can be applied to determine whether a statement constitutes a protected opinion.  Geraci v. Eckankar, 526 N.W.2d 391, 397 (Minn. App. 1995), review denied (Minn. Mar. 14, 1995).  These factors are “the statement’s (1) specificity and precision, (2) verifiability, (3) literary and social context in which it was made, and (4) public context.”  Id.  “[I]f it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable.”  Schlieman v. Gannett Minn. Broadcasting, Inc., 637 N.W.2d 297, 308 (Minn. App. 2001) (citation and quotations omitted), review denied (Minn. Mar. 19, 2002). 

Appellant’s entire argument is based on the assertion that each statement made in the letter is false.  However, before we can reach the question of whether there is a fact issue as to the statements’ falsity, we must first determine whether the statements are fact or opinion.  Similarly, before we can determine whether there was defamation by implication, we must make the same threshold inquiry.  The statements in the letter at issue lack specificity.  The statements do not identify any symptoms, diseases, or diagnoses, nor make any reference to appellant’s ability to play the clarinet.  Furthermore, the statements were based on Fishman’s own subjective beliefs.  The statements at issue here were both tentative and couched as personal sentiment: “I am sorry,” “I had anticipated,” “I understand,” “I feel,” and “we must regretfully.”  These are all terms indicating that Fishman was expressing his subjective view.  Although it is certainly possible to express a vicious, specific attack in opinion statements and claim it is not actionable, this is not such a situation.  Based on the rules in Metge, Geraci, and Schlieman, we conclude that Fishman’s statements were opinion and not fact, and that the district court did not err in granting summary judgment on the defamation claim.

            IV.       Invasion of Privacy


The next issue is whether there is a genuine issue of material fact as to whether Fishman invaded the privacy of appellant’s medical information.  A claim for publication of private facts may be brought when one gives publicity to a matter concerning the private life of another if the matter publicized is of a kind that (1) is highly offensive to a reasonable person, and (2) is not of legitimate concern to the public.  Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d 550, 553 (Minn. 2003); Lake v. Wal-mart Stores, Inc., 582 N.W.2d 231, 233 (Minn. 1998).           

Here, the record shows that appellant had been a musician with Sinfonia for several years and that appellant’s injury took place during a Sinfonia rehearsal.  The record also shows that appellant was a respected, well-known musician.  Information regarding appellant’s recovery and possibility of return was of legitimate concern to the group at the rehearsal--primarily fellow Sinfonia players.  The others were apparently well acquainted with the Sinfonia; it was a limited audience, not a public communication.  Further, the information in the letter was limited; it was not highly offensive or detailed personal medical information.  We conclude that the district court did not err in granting summary judgment on this claim.

            V.        Interference with Business Relationships


The next question to be resolved is whether the district court erred in granting summary judgment on appellant’s claim for interference with ongoing business relationships.  In order for appellant to prevail on a claim for intentional interference with a prospective business relation, she must establish that respondents either (1) induced a third person not to enter into or continue a prospective business relation with her or (2) prevented another party from continuing a prospective business relation with her.  Hough Transit, Ltd. v. Nat’l Farmers Org., 472 N.W.2d 358, 361 (Minn. App. 1991).

Appellant asserts that because contractors did not call her as they had prior to Fishman’s reading of the letter, there is a genuine issue of material fact as to whether prospective business relationships were terminated.  But appellant did not identify a single prospective or ongoing business relationship that terminated after Fishman’s statement, nor did she identify any third party who refused to enter into a business relationship with her.  Without this, or evidence that Fishman or Sinfonia advised contractors or employers to not hire appellant, there is no genuine disputed issue of material fact for a trier of fact to resolve.  Appellant’s bare allegation of no job offers does not establish a prima facia case that survives a motion for summary judgment.

            VI.       Breach of Contract and Promissory Estoppel


            Next, we must determine whether the district court erred in entering summary judgment in favor of respondents on appellant’s breach of contract and promissory estoppel claims. 

                        A.        Breach of Contract            


In order for appellant to maintain an action for breach of contract against respondents, she must prove that respondents entered into a contract with her, that she performed the conditions precedent to her right to demand performance by respondents, and respondents materially breached the contract.  Briggs Transp. Co. v. Ranzenberger, 299 Minn. 127, 129, 217 N.W.2d 198, 200 (1970).  Sinfonia hires freelance musicians to perform concerts.  Its regular performers, who are selected by Fishman and considered “first call” musicians, receive schedules of tentative performances and rehearsals well in advance of the actual performance dates.  These musicians can accept performances that best fit their schedules and reject others that do not.  Hanson performed as a “first call” musician, and received the schedule of the tentative performances and rehearsals for the 1999 summer months.  The schedule was printed on Sinfonia letterhead and was written by Fishman.  It is undisputed for the purposes of summary judgment that Fishman was acting as Sinfonia’s agent when dealing with appellant as a musician.  Appellant argues that respondents offered to hire appellant for the summer dates when Fishman sent the schedule, that appellant accepted, and that Fishman later breached the contract when he terminated the agreement. 

Although appellant did perform at two rehearsals and a few concerts following her injury, respondents assert that there was no contract because appellant had turned down certain performances over a two-month period in April and May on the basis that she was not well enough to perform.  Further, respondents assert that both Fishman and appellant are members of the Twin Cities Local of the American Federation of Musicians, and are subject to the union’s bylaws regarding the cancellation of services. 

The record indicates that appellant has consistently stated that the bylaws are binding on members and provide “minimum standards” by which Sinfonia musicians are governed.  Respondents agree.  Therefore, the bylaws are incorporated by implication into all “contracts” between members, even when one of those members is acting as an agent for another.   Article IV, section G.5 of the bylaws states:

To cancel any engagement, two weeks notice in writing must be provided by the leader or contractor on the one hand, and the sidemusician [sic] on the other.  Reason for such two weeks notice shall not be required.  On steady engagements such notice shall be given before the beginning of the work week.  For violation: fine of $100 or less.


Here, Fishman wrote appellant a letter asking her to remove the summer 1999 performances from her calendar on May 19, 1999.  The earliest summer performance was on June 9, 1999.  Therefore, Fishman complied with the two-week notice requirement when he terminated appellant’s services.  This finding is supported by the decision in the union proceedings. 

Because the bylaws are impliedly incorporated into any alleged contract between Fishman and appellant, and because Fishman complied with the bylaws regarding the cancellation of services, respondents cannot be held liable for breach of contract as a matter of law.  According to the represented facts, respondents properly suspended and then terminated the alleged contract according to its own terms; therefore, the termination was not a breach.  Because there is no genuine issue of material fact as to whether respondents breached the contract, the district court did not err in granting summary judgment on the breach of contract claim.

                        B.        Promissory Estoppel


            In order for appellant to assert her equitable claim of promissory estoppel, she must prove (1) that there was a clear and definite promise; (2) that it was intended to induce her to rely on the promise, and such reliance occurred; and (3) that the promise must be enforced to prevent injustice.  Olson v. Synergistic Techs. Bus. Sys., Inc., 628 N.W.2d 142, 152 (Minn. 2001).  Turning to the facts on summary judgment in this proceeding, we first address the last element--“prevention of an injustice.”  In this case, appellant and respondent Fishman fully pursued their remedies within the musicians union regarding cancellation of the alleged contract.  After considering the matter at three levels and a request that it be reopened, the final decision by the union was that respondent Fishman’s decision to terminate the contract was consistent with the union bylaws.  We also note that Fishman’s letter by its terms invited appellant to contact him regarding playing in future performances when she felt better, and that appellant concedes she was able to perform but that she did not contact respondents to arrange performance opportunities or to resolve the misunderstandings that she alleged had developed.  Given these uncontested facts, we conclude that appellant did not present evidence that an injustice has occurred.  Rather, given the numerous times this matter has been considered, we conclude that equity supports closure rather than yet more hearings.  The district court did not err in granting summary judgment on the promissory estoppel claim in favor of respondent Fishman.

            We recognize that we have focused on Fishman’s actions and that the union provision for terminating contracts has been a persuasive factor in our analysis.  We acknowledge that Sinfonia is not a union member.  However, we conclude that there is a similarity of interests between Sinfonia and Fishman as principal and agent and that the equitable relief requested by appellant is not justified in this circumstance.

            Based on our analysis of the breach of contract and promissory estoppel claims, it is not necessary for us to reach the collateral estoppel issue. 

            VII.     Negligent Infliction of Emotional Distress


The next issue is whether the district court erred in not granting appellant’s motion to reconsider its summary judgment order dismissing her claim for negligent infliction of emotional distress.  “To establish a claim for negligent infliction of emotional distress, a plaintiff must ordinarily show she (1) was within a zone of danger of physical impact; (2) reasonably feared for her own safety; and (3) suffered severe emotional distress with attendant physical manifestations.”  Stead-Bowers v. Langley, 636 N.W.2d 334, 343 (Minn. App. 2001), review denied (Minn. Feb. 19, 2002).  If a claimant cannot show a direct invasion of her rights, she must demonstrate that she is within the “zone of danger.”  Id.  “In order to be within the ‘zone of danger,’ the plaintiff must show that the defendants placed her within a zone of danger of physical impact, prompting reasonable safety concerns and causing severe emotional distress and resultant physical injury.”  Id. (citations and quotations omitted).

“A defendant is entitled to summary judgment as a matter of law when the record reflects a complete lack of proof on an essential element of the plaintiff’s claim.”  Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995).  Here, the record reflects a lack of proof that appellant reasonably feared for her own safety at the time that she was within the alleged “zone of danger.”  The record shows that appellant was sitting with her back to the light pole that toppled over.  In addition, appellant stated that she did not see the light pole coming and did not know the light was falling until it struck her.  Because there is no proof that appellant reasonably feared for her safety before or as the light pole fell, summary judgment was appropriate.  Because the negligent infliction of emotional distress claim fails on the second element, the affidavits submitted on the issue of physical manifestations are irrelevant to our decision, and we deny the motion to strike.


VIII.    Denial of Appellant’s Motion for Reconsideration


Another issue in this appeal is whether the district court erred in denying appellant’s motion for reconsideration.  Motions for reconsideration “will be granted only upon a showing of compelling circumstances.”  Minn. R. Gen. Pract. 115.11.  Courts are likely to grant motions to reconsider only “where intervening legal developments have occurred . . . or where the earlier decision is palpably wrong in some respect.”  Minn. R. Gen. Pract. 115.11 1997 advisory comm. cmt. 

Appellant asserts her compelling circumstance was fairness.  The district court found that appellant failed to identify a statute or controlling case that mandated a different result, and did not offer anything to suggest that the court’s prior decision was “palpably wrong.”  These findings are consistent with the record.  The fact that the district court had previously granted respondents’ motion for reconsideration is irrelevant because the earlier motion was separate from appellant’s motion and the district court applied two separate analyses.  The district court did not abuse its discretion in granting respondents’ motion for reconsideration and denying appellant’s motion.

IX.       Punitive Damages


Finally, we consider the issue of whether the district court erred in refusing to grant appellant’s motion to add punitive damages.  “We will not reverse the [district] court’s decision to grant or deny a motion to add a claim for punitive damages absent an abuse of discretion.”  LeDoux v. Northwest Publ’g., Inc., 521 N.W.2d 59, 69 (Minn. App. 1994), review denied (Minn. Nov. 16, 1994).  “A claim for punitive damages may be allowed, however, only upon clear and convincing evidence that the acts of the defendant showed deliberate disregard for the rights or safety of others.”  Id. (quotation omitted); see also Minn. Stat. § 549.20 (2002).  

Because we conclude appellant has not established a prima facie case for any of her claims, “it is axiomatic that [she] cannot sustain [her] burden to show that a punitive damage claim is warranted.”  Hern v. Bankers Life Cas. Co., 133 F. Supp. 2d 1130, 1136 (D. Minn. 2001).  Therefore, the district court did not abuse its discretion in denying appellant’s motion to add a punitive damages claim.

            Affirmed; motion to strike denied.


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

[1] Although the statute is substantively the same, the MHRA was renumbered subsequent to the commencement of this action.  Minn. Stat. § 363.03, subds. 1, 6, and 7 (2002) were renumbered as Minn. Stat. §§ 363A.08, subds. 1-6, .14, and .15 (Supp. 2003).  For ease of reference, we cite the current version of the statute.