This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat.  480.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-95-2542

Terry M. Anderson, Appellant,

vs.

First Bank National Association,

Respondent.

Filed June 4, 1996

Affirmed

Parker, Judge

Hennepin County District Court

File No. 953868

Ann C. Schulz, Robin & Thompson, P.A., 1000 Superior Boulevard, Suite 300, Wayzata, MN 55391 (for appellant)

Brian E. Palmer, Todd C. Pearson, Dorsey & Whitney, L.L.P., 220 South Sixth Street, Minneapolis, MN 55402-1498 (for respondent)

Considered and decided by Parker, Presiding Judge, Randall, Judge, and Kalitowski, Judge.

U N P U B L I S H E D O P I N I O N

PARKER, Judge

Appellant Terry Anderson filed suit against First Bank National Association (First Bank), alleging damages for breach of contract, negligence, emotional distress, and breach of a bailor/bailee agreement. Anderson alleged that First Bank was responsible for substantial losses due to their failure to keep secure a safe deposit box that he and his wife had leased from the bank.

In May 1993, Mr. Anderson went to the safe deposit box at issue to obtain funds for his wife's funeral expenses and discovered that the door was broken and the box empty. The affidavits establish that prior to that date, Mr. Anderson had not seen the contents of the safe deposit box since 1986. According to First Bank's metallurgical report, the hinges on the safe deposit box were not broken by force, but failed due to defective material and improper fixturing.

Mr. Anderson alleges that after he and his wife had paid off their home mortgage in 1976, his wife continued to save the monthly mortgage amount of $375 and placed it in the safe deposit box at the bank. He claims that in 1986, he actually saw $45,000 in cash in the box. He also alleges that he had given his wife a substantial number of stock certificates to put into the box. Mr. Anderson asserts that by reconstructing the family expenses and sources of income, along with statements made by other family members, he can demonstrate that the value of the contents of the box was in excess of $300,000, including cash, stock certificates, and two gold chain necklaces. He alleges that First Bank is responsible for the missing contents of the box because the box was damaged while under the bank's control.

The district court granted summary judgment to First Bank on all claims. Anderson appeals, arguing that he presented sufficient evidence of liability and damages for his case to go to a jury. We affirm.

D E C I S I O N

Under Rule 56.03, when a motion for summary judgment is properly made,

Judgment shall be rendered forthwith if 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.

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. * * * When a motion for summary judgment is made and supported as provided in Rule 56, an adverse party may not rest upon mere averments or denials of the adverse party's pleading but must present specific facts showing that there is a genuine issue for trial.

Minn. R. Civ. P. 56.05 (emphasis added).

Summary judgment is appropriate when

a party * * * fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof * * *.

Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986). The evidence must be viewed in a light most favorable to the nonmoving party. Fairview Hosp. & Health Care Servs. v. St. Paul Fire & Marine Ins. Co., 535 N.W.2d 337, 341 (Minn. 1995) (citing Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988)). Summary judgment should be granted only when there is "a complete failure of proof" on any element that is essential to a party's claim. Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845, 848 (Minn. 1995) (citing Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2552). On appeal from summary judgment, this court asks (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).

1. In this case, the district court found that appellant Anderson could not establish that First Bank had breached any duty that it owed to him or that the contents of Anderson's safe deposit box were lost due to a breach of First Bank's duties. Furthermore, the district court found that Anderson could not prevail on any of his claims because he had presented no evidence that anything was in fact missing from the safe deposit box.

In his brief, Anderson alleges that there are numerous issues of material fact that are unresolved in this case. Anderson fails, however, to distinguish between disputed facts and material facts. A disputed fact may be nonetheless immaterial if it is rendered moot by other considerations. Thus, although the parties disagree as to what may or may not have been in the safe deposit box, that disputed fact is immaterial if Anderson has failed to present evidence of the bank's negligence or evidence that such negligence was the cause of his alleged loss. The issue of the box's contents will also be rendered moot if there is no evidence presented that would assist a factfinder in determining the probable contents of the box and thus the probable amount of damages suffered by Anderson. The district court concluded that no evidence had been presented to support a breach of the box lease agreement or of any other duty owed by the bank to the plaintiff and that his reconstruction of the supposed contents of the box consisted entirely of impermissible speculation, which does not raise a genuine issue of material fact. We agree.

2. Anderson argues that because the safe deposit box was damaged while under First Bank's control, he has established negligence per se or at least a prima facie case of negligence. Anderson cites no Minnesota authority or other authority that supports his contention. Anderson also cites no statute or other regulation that has been violated by First Bank. Absent the violation of a statute or other regulation, this court is aware of no authority, and appellant cites none, for the proposition that First Bank could be held to be guilty of negligence per se. See Seim v. Garavalia, 306 N.W.2d 806, 810 (Minn. 1981) ("Negligence per se is a form of ordinary negligence that results from violation of a statute."). Although we might agree with Anderson that the damaged safe deposit box is at least some evidence of negligence that would require First Bank to come forward with evidence of an acceptable explanation, we do not address the issue because his evidence is insufficient in other crucial respects.

3. Anderson also argues that, due to the nature of safe deposit boxes and some of the difficulties inherent in proving the existence of any alleged missing contents, the standard of proof applicable to his case should be lower than that which applies to ordinary civil cases. Rather than a fair preponderance of the evidence, Anderson argues, he should be required to prove his claims only by a "fair degree of proof," a standard that he fails to define in any manner that is comprehensible to this court.

Anderson relies on an Illinois Appellate Court case, Hendrick v. Uptown Safe Deposit Co., 159 N.E.2d 58 (Ill. App. 1959). But Hendrick did not purport to establish a lower standard of proof than that used in ordinary negligence cases. Hendrick merely distinguished other cases in which the existence of missing property was established by what was described as a "fair degree of proof." Id. at 64. In the Hendrick case itself, however, the court found the proof to be lacking and held that "[m]ere proof of loss * * * will not make a prima facie case." Id. at 65. In holding for the defendant, the Hendrick court noted:

There is, in the instant case, nothing more than plaintiff's testimony, supported by that of her daughter (who had to depend on her mother's assessment of the amount), that $37,750 in cash was missing from her safe deposit box. Plaintiff * * * did not employ a methodical system--perhaps it would be more accurate to say that she did not employ a system at all--in keeping a record of her cash deposits in the box.

Id. Likewise, in this case the evidence of damages is impermissibly speculative. The record demonstrates that Anderson himself has no personal knowledge of the contents of the box after he last viewed it in 1986.

Instead of providing concrete testimony from witnesses with personal knowledge, Anderson has provided the court with what might only be described as his best or most diligent guess as to the contents of the box. Most of the evidence he has offered would be inadmissible hearsay at trial, and there is no indication in the record that Anderson will be able to cure the defects in his purported evidence. This is especially true given the fact that his wife, apparently the only person who would be competent to testify about the contents of the safe deposit box, is no longer alive.

On the few specific occasions that Anderson or his daughter claim to have accompanied Mrs. Anderson to the bank, they did not actually go with her into the bank or see her go to the safe deposit box. The last time Mr. Anderson actually saw the contents of the box was in 1986. The last time Mrs. Anderson's daughter accompanied Mrs. Anderson to the bank with a "white envelope of cash approximately 3/4" thick" was, depending on which portion of the contradictory affidavit is accurate, either the fall of 1991 or the summer of 1992.

I watched my mother get out of the car with the envelope, enter the bank, turn and go downstairs. A few minutes later she came back and got into the car without the envelope.

This affidavit falls far short of evidence of the contents of the box, because Mrs. Anderson's daughter did not see the contents of the box, did not know how much cash was in the envelope, did not see her mother deposit the envelope into the box, and did not even see her mother enter the safe deposit vault. Furthermore, a substantial amount of time elapsed between the date Mrs. Anderson's daughter last accompanied her to the bank and the date Mr. Anderson discovered that the box was empty.

The Minnesota Supreme Court has held, "An award of damages may not be based on speculation or conjecture." Snyder v. City of Minneapolis, 441 N.W.2d 781, 789 (Minn. 1989) (citing Ahrenholz v. Hennepin County, 295 N.W.2d 645, 649 (Minn.1980)). In her affidavit, Anderson's daughter mentioned times that Mrs. Anderson stated that she had "more than enough" to pay off her credit card debt and that she could bail her other daughter out if she got into financial trouble. Mrs. Anderson's daughter states, "From these conversations, I assumed she meant she had over $100,000." Mr. Anderson makes a guess at the amount of cash that might have been in the box, using a vernier scale to measure the thickness of a one hundred dollar bill and estimating that the box could hold in excess of $200,000 dollars in bills of that denomination (excluding, he claims, the area of the box that would be occupied by the necklaces, stock certificates, and the insurance policy).

Mr. Anderson also speculates as to the contents of the safe deposit box by using the family's sources of income and estimated expenses over the years. He concludes from these figures that the difference must all have been placed into the safe deposit box. In support of this approach, he cites a tax evasion case, United States v. Ludwig, 897 F.2d 875 (7th Cir. 1990), in which the IRS used bank deposit slips to establish unreported income. The analogy is unpersuasive for several reasons. The deposit slips in Ludwig constituted solid evidence of actual amounts of cash that were provably deposited in the bank at one time. In the present case, there are no such deposit slips. Furthermore, even if Mr. Anderson's estimates of the family expenses were to be found accurate, there is no evidence that would prove what actually happened to the unaccounted-for cash. It may have been placed in a safe deposit box, as Mr. Anderson suggests, or it may have been gambled away, [1] as the bank suggests. But these are only two of a great number of possibilities.

In addition, even if Mr. Anderson or his daughter were competent to testify as to the contents of the box in 1986 or in the summer of 1992, at least eight months passed in which the contents may have been removed by Mrs. Anderson without her husband or daughter knowing about it. Mrs. Anderson's note of May 6, 1993, suggests that the box may very well have been in disuse at the time the note was written:

First Bank Hopkins,

Please let us know if our box 2539 can now be used. When in last, the lock was broken and needed replacement.

Thank you.

Mrs. Terry M. Anderson

We further observe that this note, dated May 6 (four days before Mrs. Anderson's suicide), was not received by the bank until May 18, the day before Mr. Anderson went to the safe deposit box.

4. Anderson also cites Farnum v. Connecticut Bank & Trust Co., 168 A.2d 168 (Conn. Super. Ct. 1960), for the proposition that First Bank breached its duty of care because his safe deposit box was damaged while under the bank's control. Farnum, however, does not speak directly to this proposition. The Farnum court stated:

The failure of the bailee to perform his contract to return the goods raises a presumption that their nonproduction is due to the negligence of the bailee, and by proof of such nonproduction the bailor makes out a prima facie case of negligence * * *.

Id. at 170 (quoting Murray v. Paramount Petroleum & Products Co., 125 A. 617, 618 (Conn. 1924)).

The instant case is distinguishable from Farnum because the district court concluded that the lease agreement between First Bank and the Andersons did not create a bailment relationship between the parties, and Anderson has not challenged that ruling. Nor has Anderson, on appeal, explicitly challenged the district court's dismissal of his bailment claim. Consequently, Farnum is of little assistance. Furthermore, we note that even if Farnum were applicable to these facts, Anderson would still not be relieved of his burden to prove the nonproduction of goods placed in First Bank's possession.

In any case, it is unnecessary to distinguish Farnum, which is instructive in at least one respect:

[T]he plaintiff did not show by a fair preponderance of the evidence the facts of the deposit or the breach of the defendant's contract. * * * The plaintiff is uncertain as to the happenings; a fortiori, the court is uncertain. In argument, counsel suggested that the attendant might have palmed the plaintiff's key and made a wax impression of it. This is pure conjecture from the circumstances as related to the court.

Id. at 171 (citation omitted). Likewise, the offered evidence in this case is also based on pure conjecture and speculation.

Finally, Anderson argues that it would not be good public policy to require that a safe deposit box lessee maintain complete and extremely current written or photographic records itemizing in detail the contents of his or her safe deposit box in order to recover damages when the safe deposit box is damaged while in the control of the lessor. We do not think, however, that the preponderance-of-evidence standard places such a burden on lessees of safe deposit boxes. Rather, it requires only enough proof that a jury might conclude from the evidence that the existence of an alleged fact is more probable than its nonexistence, see 2 John W. Strong et al., McCormick On Evidence § 339 (4th ed. 1992). In the present case, however, the offered evidence, at least with regard to damages, did not approach this standard.

Affirmed.


Footnotes

[1] We note that in her affidavit, Mrs. Anderson's daughter admits that she and her mother began gambling in 1992, had a good time, and so "went more often." Although she does not "think" her mother ever spent more than $200 in one evening, she admits that her mother would go to the ATM machine during their visits to the casino.