This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






Terri Wittwer,





Enbridge, Inc., et al.,



Murphy Bros., Inc.,



Filed January 23, 2007


Shumaker, Judge


St. Louis County District Court

File No. 69-C3-04-602588



William B. Butler, Biersdorf & Associates, P.A., 4100 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for appellant)


Charles B. Bateman, Tracy A. Schramm, Reyelts, Leighton, Bateman, Hylden & Sturdevant, Ltd., 700 Providence Building, 332 West Superior Street, Duluth, MN 55802-1801 (for respondent)

            Considered and decided by Minge, Presiding Judge; Shumaker, Judge; and Hudson, Judge.


U N P U B L I S H E D   O P I N I O N


            Appellant challenges the district court’s summary judgment on all emotional-distress claims, restricting recovery in trespass to property damage, and denying her motion to amend the complaint to include a claim for invasion of privacy.  Because the district court did not commit an error of law or abuse its discretion, we affirm.   


            While respondent Murphy Bros., Inc. was using high water pressure to test an oil pipeline that ran across appellant Terri Wittwer’s farm, the line ruptured and exploded.  The blast was loud and substantial and spewed boulders, rocks, water, and debris for 100 yards over Wittwer’s land.  The explosion also terrified Wittwer, who was driving on an access road on her farm when the explosion occurred.

            Wittwer sued Murphy Bros. and others for damages for emotional distress on theories of negligence and negligent and “reckless” infliction of emotional distress.

            Murphy Bros. moved for summary judgment as to the emotional-distress claims, arguing, among other things, that (1) as to the theory of negligent infliction of emotional distress, there was no objective evidence of any physical manifestation of Wittwer’s emotional injury; (2) as to the theory of reckless infliction of emotional distress, there was no objective evidence of the severity of the injury; and (3) there was no evidence showing any causal link between the explosion and Wittwer’s alleged emotional distress.

            In opposition to the summary-judgment motion, Wittwer submitted her own affidavit and her answer to an interrogatory propounded by Murphy Bros.  In her affidavit, Wittwer described the explosion as terrifying, leaving her “visibly shaking” and “white as a ghost for hours.”  She stated that she was “shaken to my core” and that the explosion “permanently entrenched” and served “as a constant reminder of the feeling of insecurity” she feels as a result of her husband’s accidental death two years previously.  In her interrogatory answer, Wittwer explained that, at the time of the blast, she, “a widow and mother of four,” was “still grieving over the loss of her husband” and was in “an emotionally vulnerable state . . . .”  She then indicated that the occurrence “caused acute and severe emotional distress including but not limited to severe anxiety, uncontrollable crying, sleeplessness, fatigue, depression, and general emotional lability.”

            The district court granted the motion as to all emotional-distress claims upon the grounds that Wittwer failed to present evidence as to the nature and severity of her emotional distress or of a causal link “between her emotional state and the incident.”

            Wittwer also moved to amend her complaint to add claims for trespass, invasion of privacy, and punitive damages.  The court allowed the addition of a trespass claim but limited any damages relative to that claim to property damage, and the court denied the balance of the motion.

            On appeal, Wittwer challenges the district court’s rulings as to emotional-distress damages and the disallowance of a claim for invasion of privacy.


Emotional-Distress Claims

            The district court granted summary judgment upon its determination that the evidence did not show the existence of a material fact dispute as to the causation of Wittwer’s emotional distress or as to the nature and severity of that distress.

            “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).  This court reviews de novo whether a genuine issue of material fact exists and whether the district court erred in its application of the law.  STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 77 (Minn. 2002).  This court views the evidence in the light most favorable to the party against whom judgment was granted.  Id. at 76-77. 

Summary judgment is appropriate “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).  No genuine issue for trial 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) (alteration in original) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986)).  “[T]he party resisting summary judgment must do more than rest on mere averments.”  Id. at 71.  A genuine issue for trial exists when the nonmoving party “presents sufficient evidence to permit reasonable persons to draw different conclusions.”  Schroeder v. St. Louis County, 708 N.W.2d 497, 507 (Minn. 2006).  Furthermore, “[t]he 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).

            Thus, to survive summary judgment, the nonmoving party must come forward with evidence that reveals a genuine issue of material fact as to each element of the party’s claim.  The element common to Wittwer’s claims in her original complaint is that of causation.  To recover damages for emotional distress under a theory of intentional infliction of emotional distress, a claimant must show that the tortious conduct caused the distress.  Hubbard v. United Press Int’l., Inc., 330 N.W.2d 428, 438-39 (Minn. 1983).  Similarly, a claim of negligence can be established only if the wrongful conduct was “the proximate cause of . . . [the] injury.”  Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 157 (Minn. 1982).

            Wittwer argues that she produced sufficient admissible evidence to show the existence of a genuine issue of material fact as to causation.  That evidence consisted solely of her own conclusion that the blast caused her emotional distress.  But the showing “of a causal connection must be something more than merely consistent with the plaintiff’s theory of the case.”  Bernloehr v. Cent. Livestock Order Buying Co., 296 Minn. 222, 224, 208 N.W.2d 753, 754 (1973).  When a claim involves medical factors beyond the knowledge of laypersons, “there must be expert testimony, based upon adequate factual foundation that the thing alleged to have caused the result not only might have caused it but in fact did cause it.” 225, 208 N.W.2d at 755.  In a case involving a claim of damages for emotional distress where causation was at issue, our supreme court held that “testimony from the individual making the claim . . . [is] not sufficient to establish a causal connection between the conduct and the emotional distress.  The appropriate method of proving the severity and causation of emotional distress is through medical testimony.”  Langeslag v. KYMN Inc., 664 N.W.2d 860, 869 (Minn. 2003)  (citations omitted) (involving symptoms such as stomach pain, impotence, and hair and weight loss).

            Wittwer contends that she is qualified to attest to her own emotional distress and that “nothing in the law prohibits a plaintiff from offering sworn testimony of her own emotional distress and the objectively observable signs of this distress . . . .”  She also implies that the suddenness and intensity of the unanticipated blast logically would produce emotional distress.

            It is correct that Wittwer is qualified to testify to her own firsthand observations of her symptoms.  But, under Minnesota law, she is not qualified through her own nonexpert testimony to supply the causal link between the blast and her symptoms, and a logical inference of causation is similarly inadequate.  This court gave further explanation of the problem in a case in which emotional-distress damages were claimed but only lay testimony was offered in support of the causal link:

[T]he testimony provided by [the plaintiff] to support her emotional distress claim consisted solely of her own testimony regarding her mental state and the testimony of three colleagues who based their conclusions on phone calls and personal observations.  In the absence of any medical testimony, such testimony fails to provide the ‘guarantees of trustworthiness’ necessary to overcome the speculative nature of this claim because we cannot be certain of the extent of her distress and can only speculate as to its source.


Deli v. Univ. of Minn., 578 N.W.2d 779, 783 (Minn. App. 1998), review denied (Minn. July 16, 1998); see also Potthoff v. Jefferson Lines, Inc., 363 N.W.2d 771, 777 (Minn. App. 1985) (concluding plaintiff’s own testimony of mental state insufficient to establish emotional distress damages absent evidence of expert involvement).

            The problem of showing causation here increases in complexity and speculation when we consider that Wittwer, by her own admission, was in an “emotionally vulnerable state” at the time of the explosion because of her husband’s death, and that condition had persisted for two years.  Without competent expert evidence, we are left to speculate as to the nature and extent of the role the blast played in producing or exacerbating Wittwer’s symptoms.  Even if she had been emotionally healthy at the time of the explosion, causation could still not be shown through lay testimony alone.  Thus, the district court did not err in granting summary judgment as to Wittwer’s claims for damages for emotional distress.

Amendment of the Complaint

            The district court enjoys broad discretion to grant or deny a motion for leave to amend pleadings and we will not reverse absent a showing of the clear abuse of that discretion.  Fabio, 504 N.W.2d at 761.  The determination of abuse of discretion may turn on the correctness of the district court’s application of law. 761-62.

            The two issues Wittwer raises on appeal regarding her motion to amend her complaint are the court’s ruling that her trespass claim could not include damages for emotional distress and that she could not assert a claim for invasion of privacy.

            Wittwer has stipulated that the only damages she is seeking, at least for purposes of appellate review, are those for emotional distress.  As we have explained, Wittwer is unable to show any causal link between the explosion and her emotional distress and, thus, such damages are not recoverable as a matter of law.  The district court did not abuse its discretion when it correctly applied the law so as to preclude damages for emotional distress relative to the trespass claim.

            Wittwer’s proposed invasion-of-privacy claim was premised on an intrusion upon seclusion.  The district court held that, although Wittwer’s space was invaded by the explosion, her privacy was not invaded in the sense intended to be within the purview of the tort of invasion of privacy.

            In 1998, our supreme court recognized the tort of invasion of privacy.  Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231, 235 (Minn. 1998).  One of the forms an invasion of privacy can take is an intrusion upon seclusion.  The supreme court adopted the definition of this means of invading privacy stated in the Restatement (Second) of Torts § 652B (1977); accordingly, three elements must be shown, namely “(a) an intrusion; (b) that is highly offensive; and (c) into some matter in which a person has a legitimate expectation of privacy.”  Swarthout v. Mut. Serv. Life Ins. Co., 632 N.W.2d 741, 744-45 (Minn. App. 2001).  Because this is an intentional tort, there must be an intentional invasion of privacy such as eavesdropping or spying.  Restatement (Second) of Torts, § 652B cmt. b (1977).

            There is no evidence that Murphy Bros. engaged in any intentional tortious act.  The explosion, if not purely accidental, was the product of negligence.  Moreover, although the debris from the blast “invaded” Wittwer’s private property, it did not invade a seclusion.  Wittwer was driving along an open and completely visible access road when the blast occurred. She was not attempting to conceal herself or conduct herself in a private manner.  As the district court noted, this tort claim does not fit the elements of invasion of privacy and actually is a trespass claim to which Wittwer has affixed a different label.  The court’s denial of Wittwer’s motion to amend her complaint to assert a claim for damages for invasion of privacy was based on a correct application of the law.