This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
W.R. Weeres Trucking, Inc., et al.,
Filed March 21, 2006
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,
William L. Lucas, William L. Lucas, P.A.,
Considered and decided by Dietzen, Presiding Judge; Wright, Judge; and Worke, Judge.
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.
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
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.
state that the semi-tractor began experiencing hand-brake problems on June 30,
2003, while appellant Walter Weeres was picking up a load in
next morning, July 1, 2003, appellant Walter Weeres was in
evening, appellant Walter Weeres was driving the semi-tractor when it
rear-ended another vehicle at a tollbooth station near
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.
D E C I S I O N
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 (
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 (
“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 (
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
Hills N. Homes Ass’n v. Pemtom, Inc., 475 N.W.2d 495, 500 (
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 (
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
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.
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.
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.”
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.
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,
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.
prevail on a breach-of-contract claim, a plaintiff must a show a material breach
that caused it damage. See
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.
 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.