This opinion will be unpublished and

may not be cited except as provided by

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






Koch NationaLease,





W.R. Weeres Trucking, Inc., et al.,



Filed March 21, 2006


Dietzen, Judge


Hennepin County District Court

File No. CT-04-1170


Brian A. Wood, William L. Davidson, Roseann J. Bour, Lind, Jensen, Sullivan & Peterson, P.A., 150 South Fifth Street, Suite 1700, Minneapolis, MN 55402; and


Steven P. Hegranes, Stebbins & Hegranes, LLC, 877 Jefferson Avenue, Suite D, St. Paul, MN 55102 (for respondent)


William L. Lucas, William L. Lucas, P.A., 7456 Cahill Road, Edina, MN 55439-2728 (for appellants)


            Considered and decided by Dietzen, Presiding Judge; Wright, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N




Appellants challenge the district court grant of summary judgment dismissing appellant’s negligence claim and granting respondent’s breach-of-contract claim, arguing that genuine issues of material fact preclude summary judgment.  Because we conclude that no genuine issues of material fact preclude summary judgment, we affirm.


            Appellant W.R. Weeres Trucking, Inc. is a family-owned business operated by appellants Walter and Shirley Weeres and is engaged in providing transportation services in Minnesota and elsewhere.  Respondent Koch NationaLease is a Minnesota corporation engaged in the business of leasing semi-tractors.

The facts are largely undisputed.  In December 2000, the parties entered into a five-year written lease wherein respondent agreed to lease a Freightliner semi-tractor to appellant.  Under the lease, appellants agreed to pay respondent a fixed rate of $1,967.97 per month plus a per-mile charge.  The lease set forth concurrent obligations on both parties regarding the inspection and maintenance of the semi-tractor.  The semi-tractor was delivered to appellants in May 2001.  Appellants made regular payments on the semi-tractor until December 2002, when appellants defaulted on their obligation to make monthly lease payments. 

On June 17, 2003, appellant Walter Weeres brought the semi-tractor to respondent for routine maintenance.  The semi-tractor was in respondent’s service shop from June 17–27, 2003.  The repair-order detail prepared by respondent itemized the work done on the semi-tractor, the complaints or issues raised by appellants, and how each complaint was addressed.  Appellants did not complain of any braking issues, nor did respondent discover any brake problems when it serviced the semi-tractor.  The order detail mentioned the following brake service:

            Driver reports loud engine knock when idling.

[Respondent’s response] Reformed cylinder cut out test. Remove valve cover, jake brakes, and #1 rockers and injectors, and set overhead. Set Jake brakes. Started engine all sounds normal.  Performed cylinder cut out—all seems strong.[1]


            Appellants state that the semi-tractor began experiencing hand-brake problems on June 30, 2003, while appellant Walter Weeres was picking up a load in Becker, Minnesota.  Weeres testified that when he was attempting to connect the semi-tractor to the trailer, the hand brake malfunctioned, but when he tried to operate the hand brake for a second time, it worked properly. 

            The next morning, July 1, 2003, appellant Walter Weeres was in Milwaukee, Wisconsin, en route to Bensonville, Illinois, where he states that the hand-brake problem recurred.  Weeres testified that, while the semi-tractor was parked for a pickup, he tried applying the hand brake, and that it did not work on his first attempt but did on his second.  Weeres called respondent and told its representative what had happened.  Weeres claims that he was told by the service manager, “When you get back here bring it in.”  Weeres continued to drive the semi-tractor on his delivery route. 

            That evening, appellant Walter Weeres was driving the semi-tractor when it rear-ended another vehicle at a tollbooth station near Chicago, Illinois.  Weeres stated that he was unable to stop because both the foot-brake pedal and the hand-brake lever failed.  Both vehicles were destroyed by a fire that resulted from the collision.  Consequently, no determination was made of what caused the accident.     

            Respondent brought a lawsuit against appellant for failure to make the lease payments.  Appellants filed an answer and counterclaim, alleging that the accident was caused by respondent’s negligent repair and inspection of the semi-tractor’s brake system.  Respondent moved for summary judgment, requesting that the district court dismiss appellant’s negligence claim and grant its breach-of-contract claim.  Appellants argued that genuine issues of material fact existed to preclude summary judgment, i.e., that respondent was negligent in its repair and inspection of the vehicle, and negligently advised appellant by stating, “When you get back here bring [the semi-tractor] in.”  In addition, appellants argued that respondent breached the lease contract by failing to inspect the hand brakes.

            Following the hearing, the district court granted respondent’s motion for summary judgment on its contract claim, and dismissed appellants’ negligence claim.  The district court awarded respondent $15,293.33 plus costs for breach of contract, which represented the payments and mileage costs that had accrued from December 2002 through July 2003.  This appeal follows.



As a threshold matter, respondent argues that appellants failed to assert their negligent advice and breach-of-contract claims in their answer and counterclaim.  Appellants contend that these claims were asserted by mutual consent and without objection in the summary-judgment proceeding.

Appellants’ claims of negligent advice and breach of contract first appeared in appellants’ memorandum in opposition to summary judgment.  But respondent made no objection to these claims, and they were apparently argued before the district court at the summary-judgment hearing.  This court will generally not consider matters not argued and considered in the court below.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  Because respondent did not object to the inclusion of these issues at the summary judgment hearing and did not furnish a transcript of the hearing, respondent waived its right to object to the consideration of these issues on appeal.


Appellants raise two issues on appeal.  First, appellants argue that the district court erred in granting summary judgment dismissing appellants’ negligence claims.  “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 of material fact and that either party is entitled to a judgment as a matter of law.”  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  On appeal from summary judgment, this court makes two determinations: (1) whether there are any genuine issues of material fact; and (2) whether the district court erred in its application of the law.  N. States Power Co. v. Minn. Metro. Council, 684 N.W.2d 485, 491 (Minn. 2004).  The reviewing court must view the evidence in the light most favorable to the party against whom summary judgment was granted.  Fabio, 504 N.W.2d at 761. 

“The party opposing summary judgment may not establish genuine issues of material fact by relying upon unverified and conclusory allegations, or postulated evidence that might be developed at trial, or metaphysical doubt about the facts.” Dyrdal v. Golden Nuggets, Inc., 689 N.W.2d 779, 783 (Minn. 2004).   “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).  “A party need not show substantial evidence to withstand summary judgment.  Instead, summary judgment is inappropriate if the nonmoving party has the burden of proof on an issue and presents sufficient evidence to permit reasonable persons to draw different conclusions.”  Schroeder v. St. Louis County, 708 N.W.2d 497, 507 (Minn. 2006) (emphasis in original).

Negligent Maintenance

Appellants contend that respondent breached its duty of care to inspect and repair under the lease because respondent failed to repair the semi-tractor’s brake system during its routine inspection and maintenance in June 2003.  The district court determined that appellants failed to identify how respondent’s breached its duty to inspect and repair the semi-tractor. 

To prevail on a negligence claim, appellants must establish (1) the existence of a duty of care; (2) breach of that duty; (3) that the breach proximately caused the injury; and (4) injury in fact.  Lubbers, 539 N.W.2d at 401.  A duty may be imposed because of the contractual relationship of the parties or imposed directly by law.  Arden Hills N. Homes Ass’n v. Pemtom, Inc., 475 N.W.2d 495, 500 (Minn. App. 1991).  Respondent acknowledges that the lease imposed concurrent duties on both parties, but argues that it did not breach any of its duties in inspecting or repairing the semi-tractor.

The lease provided that “[respondent] shall: [] inspect, lubricate, and provide maintenance for normal wear and tear, as reasonably required to maintain such vehicle in good repair, mechanical condition and running order . . . .”  Appellants argue that the fact that the accident occurred on the second work day after respondent inspected and repaired the semi-tractor provides a reasonable jury sufficient basis to conclude that respondent breached its duty of care.  Breach of duty is generally a question of fact not susceptible to summary adjudication.  Ill. Farmers Ins. Co. v. Tapemark Co., 273 N.W.2d 630, 633–34 (Minn. 1978).  But “the mere existence of a scintilla of evidence in support of the [nonmoving party’s] position will be insufficient [to withstand summary judgment]; there must be evidence on which the jury could reasonably find for the [nonmoving party]” on each essential element of the claim for which the nonmoving party bears the burden of proof at trial. DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997) (citations omitted).

Appellants claim that respondent was obligated to maintain the brakes in good working order, and because there were problems with both the hand and foot brakes that the accident was, ipso facto, caused by respondent’s negligent maintenance of the semi-tractor.   But appellants had the burden to produce evidence to establish breach of the standard of care.  See Lubbers, 539 N.W.2d at 401.  Here, appellants produced no evidence or expert testimony that respondent breached its duty to maintain the semi-tractor.  Therefore, the district court did not err in determining that appellants did not produce sufficient evidence for a jury to reasonably conclude that respondent breached its duty to maintain the semi-tractor.

Appellants argue that Range v. Interstate Diesel, Inc., 298 Minn. 571, 215 N.W.2d 790 (Minn. 1974) (per curiam), supports their argument that respondent breached its duty to inspect.  In Range, the plaintiff brought his truck to defendant Interstate Diesel, Inc. for an “overhaul.” 571, 215 N.W.2d at 790.  The plaintiff was aware of a defect in the radiator, but did not specifically instruct the defendant to repair the defect.  Id.  The defendant found a gouge in the right-upper corner of the truck upon inspecting it, but did not repair it.  Id.  Two weeks later, a leak in the radiator caused engine failure.  Id.  The plaintiff sued for negligence, and the district court submitted to the jury the question of whether defendant negligently failed to inform plaintiff of the need to repair the radiator. Id. at 791.  The jury found that the defendant was negligent, and the Minnesota Supreme Court held that there was sufficient evidence to support the jury’s finding.  Id.

The facts here are distinguishable from those in Range.  To submit the breach-of-duty question to the jury, appellant must produce evidence to demonstrate that respondent knew of or could have discovered a defect that led to the accident. See id. Here, appellants have made no showing that respondent discovered (or could have discovered) a defect with the semi-tractor’s braking system.  Therefore, the district court did not err in concluding that appellants failed to produce sufficient evidence regarding respondent’s breach of duty in maintaining the semi-tractor to withstand a summary-judgment motion.

            Negligent Advice

Appellants alternatively contend that respondent gave negligent advice when the service manager told appellant Walter Weeres, “When you get back here bring [the semi-tractor] in.”  Appellants contend that this statement could allow a jury to find that respondent assumed a duty by voluntarily giving advice over the phone and subsequently breached this duty by not instructing appellant to have the brakes examined before continuing to drive.

            Under Minnesota law, “even [if] there is no duty in the first instance, if a person voluntarily assumes a duty, the duty must be performed with reasonable care or the person will be liable for damages.” Williams v. Harris, 518 N.W.2d 864, 868 (Minn. App. 1994), review denied (Minn. Sept. 28, 1994).  “Liability for voluntarily assuming a duty arises only if this conduct ‘leads others to rely on such assumption of duty and to refrain from taking other and more direct action to protect themselves . . . .’” Id. (citation omitted).  Here, presuming that respondents assumed a duty of care by telling appellant Walter Weeres to bring the semi-tractor in, appellants’ negligent-advice claim fails.  Appellants failed to present any expert testimony or facts indicating how respondent’s advice fell short of reasonable care, given the information presented to the service manager by Weeres over the telephone.  See Williams, 518 N.W.2d at 868 (expert testimony regarding reasonable care used by inspector of traffic devices). 

More importantly, appellants have failed to produce any evidence that respondent’s inspection, repair, or “advice” proximately caused the accident.  “Generally, proximate cause is a question of fact for the jury; however, where reasonable minds can arrive at only one conclusion, proximate cause is a question of law.”  Lubbers, 539 N.W.2d at 402.  “[F]or a party’s negligence to be the proximate cause of an injury, the act [must be] one which the party ought, in the exercise of ordinary care, to have anticipated was likely to result in injury to others, . . . though he could not have anticipated the particular injury which did happen.”  Id. at 401 (quotation omitted). 

            Here, the district court concluded that appellants have not shown that respondent could have reasonably anticipated that the foot-pedal brakes would cause the accident.  The only evidence that respondent caused the accident is that it occurred within days or hours after respondent performed maintenance on the semi-tractor.  But evidence of a possible cause is not sufficient to establish a prima facie case of proximate cause.
Smith v. Runk, 425 N.W.2d 299, 301 (Minn. App. 1988) (“Although a prima facie case may be established by circumstantial evidence, it cannot be founded upon speculation and conjecture about causation.”).  Here, appellants have failed to produce sufficient evidence to create a genuine issue of material fact, i.e., that respondent’s conduct proximately caused the accident.  Consequently, the district court did not err in granting summary judgment on appellants’ negligence claims.


            Appellants contend that genuine issues of material fact exist that preclude summary judgment on their breach-of-contract claim.  Appellants argue that (1) respondent breached the lease by failing to maintain the semi-tractor as required by the agreement; and (2) this breach caused the accident.  A lease is a contract to be construed according to the rules of contract interpretation.  Amoco Oil Co. v. Jones, 467 N.W.2d 357, 360 (Minn. App. 1991).  Interpretation of a contract is a question of law, which this court reviews de novo.  Veerkamp v. Farmers Coop. Creamery, 573 N.W.2d 715, 717 (Minn. App. 1998); see also Plaza Assocs. v. Unified Dev., Inc., 524 N.W.2d 725, 728 (Minn. App. 1994) (construction and effect of a contract is a question of law), review denied (Minn. Jan. 25, 1995).

            Here, the lease provides that respondent shall “inspect, lubricate, and provide maintenance for normal wear and tear, as reasonably required to maintain such vehicle in good repair, mechanical condition and running order . . . .”  Essentially, appellants argue that because the accident occurred, it must have been caused by respondent’s failure to maintain the semi-tractor pursuant to the lease.  We disagree.

            To prevail on a breach-of-contract claim, a plaintiff must a show a material breach that caused it damage.  See Logan v. Norwest Bank Minn., N.A., 603 N.W.2d 659, 663 (Minn. App. 1999) (summary judgment inappropriate where plaintiff shows material breach of fact issue exists regarding damages).  See id. Here, appellants have failed to present any evidence that respondent failed to inspect the brakes or failed to perform the required maintenance as required by the lease or that such a breach caused damages to appellants.  Appellants have only raised the possibility that the accident was caused by the failure of respondent to maintain the brakes. But to avoid summary judgment, appellants must introduce evidence of a material breach of the lease.  Appellants have failed to do so.

Appellants also argue that the district court erred in awarding respondent $15,293.33 plus costs for breach of contract, which represented the payments that were not made to respondent from December 2002 through July 2003.  Appellants do not dispute their liability for defaulted payments not made between December 2002 and June 2003.  Appellants argue that respondent is not entitled to the lease payment for the month of July 2003 because the semi-tractor was completely destroyed on July 1, 2003.  But the applicable language of the lease requires that, in the event of destruction of the semi-tractor, appellants are obligated to pay respondent the amount due on the “next lease payment date.”  The next “lease payment date” was July 31, 2003.  Therefore, the district court did not err in determining that appellant was liable for payments due through the month of July 2003.


[1] A “Jake brake” is a product of Jacobs Vehicle Systems, Inc. and is a supplemental brake used on large motor vehicles that is designed to slow the vehicle but not to stop it completely.  Such devices are common on long-haul trucks and buses.