This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







Randall Transit Mix Co.,

an Iowa corporation,





Boerneke Construction, Inc.,



Interstate Power Co.,

a Delaware corporation,




Filed June 21, 2005


Lansing, Judge


Ramsey County District Court

File No. C4-03-8875



James J. Galman, Patrick S. Collins, Jana O. Sullivan, Jardine, Logan & O’Brien, PLLP, 8519 Eagle Point Boulevard, Suite 100, Lake Elmo, MN 55042 (for appellant)


Michael R. Quinlivan, Katherine M. Theisen, Cronan Pearson Quinlivan P.A., 1201 Marquette Avenue South, Suite 110, Minneapolis, MN 55403 (for respondent Boerneke Construction, Inc.)


Phillip A. Kohl, Kevin H. Siefken, Christian & Peterson, P.A., 314 South Broadway, Albert Lea, MN 56007 (for respondent Interstate Power Co.)


            Considered and decided by Lansing, Presiding Judge; Peterson, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N


Randall Transit Mix Co. appeals from the district court’s summary judgment dismissing its claim against Interstate Power Co. and Boerneke Construction, Inc. for negligent construction and maintenance of an access road.  Because Randall Transit failed to produce evidence to establish the necessary elements of duty, breach, and causation, we affirm.


Randall Transit Mix Co. sustained property damage to a cement truck that became mired in an undetected soft spot on an access road constructed by Boerneke Construction, Inc.  The access road was located on Interstate Power Co.’s property, which it had purchased for the Top of Iowa Wind Farm project.  As part of the project, Interstate’s general contractor, M.A. Mortenson, subcontracted with Boerneke to dig foundations for windmill turbines and to construct roads to the turbines.  When Interstate decided to build a new substation near the windmill turbines, Interstate orally contracted with Boerneke to level the substation site and construct a temporary access road to it.

            Mortenson hired Randall Transit to provide concrete for the wind-farm project, and Randall Transit also agreed to deliver and pour concrete for the substation site.  The first Randall Transit cement truck traversed the newly constructed access road without difficulty.  The following morning, a second Randall Transit truck, larger and heavier than the first, drove to the site with another load of concrete.  The driver stopped the truck as it approached the road and made a visual inspection.  In his deposition the driver stated that he saw no soft spots or sinkholes, that the road looked better than the other access roads, and that the road appeared to be a “fine road.”  

As the driver began to back the cement truck on the road, the rear passenger tire sank precipitously, and the rear wheel dropped nine to twelve inches into the road.  The hydraulic drive in the rotating drum holding the liquid concrete twisted, and the drum jammed.  Three wreckers and a front-end loader were necessary to extricate the truck.  The truck, which was almost new before the incident, sustained significant damage.

            Randall Transit sued Boerneke for negligent construction and maintenance of the road and amended its complaint to add Interstate as the road’s owner.  Boerneke moved for summary judgment, and Interstate joined in the motion.  The district court granted summary judgment, and Randall Transit appeals.


When reviewing a grant of summary judgment, we determine whether genuine issues of material fact exist and whether the district court correctly applied the law.  Offerdahl v. Univ. of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988).  A prima facie case of negligence requires evidence of a duty, breach of that duty, a causal connection between the breach and injury, and injury in fact.  Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 157 (Minn. 1982).  Summary judgment against a negligence claim is appropriate if the record fails to provide sufficient evidence to establish any of the four essential elements.  Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995). 

The district court granted summary judgment based on its conclusion that Randall Transit failed to produce legally sufficient evidence that Boerneke and Interstate breached a duty owed to Randall Transit or that the alleged breach caused the damages.  Because it is undisputed that Randall Transit sustained damages to its truck, we address whether Randall Transit provided sufficient evidence to withstand summary judgment on the elements of duty, breach, and causation.

The existence of a legal duty presents an issue of law, which we review de novo.  Funchess v. Cecil Newman Corp., 632 N.W.2d 666, 672 (Minn. 2001).  A legal duty to act generally arises from two factors: a “special relationship” or a foreseeable harm.  Gilbertson v. Leininger, 599 N.W.2d 127, 130-31 (Minn. 1999).  In the absence of a legal duty, the negligence claim fails.  Id.

Randall Transit’s negligence claim appears to be founded, in part, on the concept of a special relationship.  Randall Transit contends that the oral agreement between Interstate and Boerneke to construct the access road for the substation incorporated the duties defined by Boerneke’s written contract with Interstate and Mortenson for construction of the roads to the windmill sites.  The specifications for the written contract required Boerneke to strip away five or six inches of black dirt, compact the subsoil, lay fabric to separate the different layers of material, place two layers of rock on the road, and then smooth the surface with a road grader.  The district court concluded that the evidence showed the access road was constructed in conformance with these standards.

Randall Transit did not produce evidence to show that Boerneke failed to meet the specifications but, instead, contends that Boerneke and Interstate had a further duty to conduct soil-density tests to confirm that the compaction standards were met.  We are unable to find a basis for this alleged duty.  The oral agreement between Interstate and Boerneke did not include a discussion about soil-density tests.  The record substantiates that soil-density tests were conducted on the access roads to the windmill sites, but it was Mortenson, the general contractor—not a party to this litigation—that implemented these tests for its own monitoring purposes.  Neither Boerneke nor Interstate required or conducted soil-density tests on the access roads to the windmill sites.  Randall Transit has not established that Boerneke or Interstate had a duty to conduct soil-density tests.

On the foreseeability prong, the district court concluded that because the infirmity in the road “was caused by an unknown danger,” Boerneke and Interstate could not have foreseen the possible harm.  Randall Transit has failed to demonstrate that either Boerneke or Interstate had any knowledge, actual or imputed, of a soft spot or sinkhole in the road.  Randall Transit’s driver explained in his deposition that he believes he ran into the one soft spot in the entire area and that the soft spot was completely unanticipated.  No evidence was produced that indicated that the soft spot was observable on the surface of the road, and Randall Transit has not provided a basis for imputing knowledge of the unexpected infirmity to either Boerneke or Interstate.  Absent foreseeability or a special relationship, Boerneke and Interstate did not owe a duty to Randall Transit to prevent the harm to the truck.

            The absence of breach follows from the determination that Randall Transit failed to establish a duty.  Randall Transit offered no evidence of any applicable standard of care that requires the builder or possessor of a road to conduct soil-density tests to demonstrate adequate compaction, and the absence of this evidence prevents proof of breach by deviation from an applicable standard.  Randall Transit did not meet its evidentiary burden to establish the element of breach, and the district court properly concluded that the evidence was insufficient to show that either Boerneke or Interstate breached a duty to Randall Transit.

            Finally, the district court concluded that Randall Transit failed to demonstrate a link between the defendants’ conduct and the existence of the soft spot that caused the damage to the truck.  No evidence indicates that any action by either Boerneke or Interstate caused the soft spot or sinkhole to develop.  Because some inherent quality in the land or some other non-negligent factor may have caused the sinkhole that was responsible for the damage to the truck, Randall Transit has not proved the element of causation.  The district court further concluded that “[t]here is no evidence to suggest that a soil-density test performed on the exact location where the sinkhole and accident occurred would have demonstrated th[e] hidden danger.”  Furthermore, the record contains evidence that, when soil-density tests are used, a sample is taken every 500 to 1,000 feet.  The access road to the substation was approximately 200 feet long.  It is highly speculative that any soil-density sample would have been taken at or near the site of the soft spot. 

On this record, the district court did not err in concluding that Randall Transit failed to provide sufficient evidence to withstand summary judgment on the elements of duty, breach, and causation.


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