This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-96-1773

Ted N. Lindrigan, as Trustee for the

Heirs of Brian W. Duoos, Decedent,

Appellant,

vs.

William H. Arlt, defendant and

third-party plaintiff,

Respondent,

Keith M. Ihnen, defendant and

third-party plaintiff,

Respondent,

vs.

William Duoos, third-party defendant,

Respondent.

Filed February 25, 1997

Reversed and Remanded

Davies, Judge

Crow Wing County District Court

File No. C5951858

Patrick M. Krueger, Borden, Steinbauer & Krueger, P.A., P.O. Box 411, Brainerd, MN 56401 (for Appellant)

Thomas R. Olson, Michael S. Montgomery, Jeffries, Olson, Flom & Bullis, P.A., P.O. Box 9, Moorhead, MN 56561-0009 (for Respondent Arlt)

Tim A. Strom, Hanft, Fride, O'Brien, Harries, Swelbar & Burns, P.A., 1000 First Bank Place, 130 W. Superior St., Duluth, MN 55802-2094 (for Respondent Ihnen)

Considered and decided by Davies, Presiding Judge, Randall, Judge, and Short, Judge.

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

DAVIES, Judge

Appellant (trustee for the heirs of the decedent) appeals the district court's grant of summary judgment against appellant's negligence claims. We reverse and remand for trial.

FACTS

This action arises out of the death of seven-year-old Brian Duoos when he was hit by respondent Keith Ihnen's car.

On the morning of May 4, 1994, respondent William Arlt took Brian and his eight-year-old sister to accompany him spreading the gospel door-to-door. In the afternoon, Arlt met the children's father, William Duoos, who was heading the other direction on a two-lane, 55-mph paved county highway. Both men pulled their vehicles to the side of the road, parking almost directly across from each another. Both vehicles were parked entirely off the lanes of travel.

Duoos exited his vehicle and crossed the road to speak with Arlt. At some point, while the two men were talking, Brian exited Arlt's car. Arlt and a passenger in Duoos's vehicle both testified that they had seen Brian standing outside the front passenger door of Arlt's car. It appears by all accounts that shortly thereafter Brian came around the front of the car and into the road, where he was struck by respondent Keith Ihnen's vehicle. Brian died as a result of his injuries. Duoos testified by deposition that he was not aware that Brian had left Arlt's car until the accident occurred.

Ihnen testified that he saw the parked vehicles when he was about one-half mile away and that about one-third mile away he slowed down as a precautionary measure. He testified further that about one-fifth mile from the vehicles, he saw a boy and a girl[1] get out of Arlt's driver's side back door and then run around the back to the passenger's side. He states that he slowed down further to what he believed was about 40 mph as he lost sight of the children behind the car and that he also moved toward the center of the road. Ihnen testified that he next saw Brian running toward the road from the front of Arlt's car. Ihnen jammed on his brakes and attempted to move further left, but the right front corner of his vehicle struck Brian.

An accident reconstruction expert reviewed the accident on Ihnen's behalf. He testified that he believed that Ihnen's vehicle was traveling 41 mph before Ihnen applied the brakes, and that by the time of impact 10 feet later, it had slowed to 38 mph. In short, the expert's testimony indicated that Ihnen simply did not have enough time to avoid the collision.

Appellant brought a negligence action against both Arlt and Ihnen. The claim against Arlt is that he negligently parked the vehicle on the roadway and negligently failed to supervise Brian. The claim against Ihnen alleges that he operated his vehicle in a negligent manner.

The trial court granted respondents' motions for summary judgment, holding that as a matter of law plaintiff failed to raise a genuine issue of material fact as to the alleged negligence.[2]

D E C I S I O N

On appeals from summary judgments, this court must consider two questions:

(1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law.

State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). An issue of fact is material if it would affect the outcome of the case. Zappa v. Fahey, 310 Minn. 555, 556, 245 N.W.2d 258, 259-60 (1976). The evidence is to be viewed in the light most favorable to the non-moving party. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

A claim for negligence requires proof of four elements:

"(1) duty;

(2) breach of that duty;

(3) that the breach of duty be the proximate cause of plaintiff's injury; and

(4) that plaintiff did in fact suffer injury."

Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 157 (Minn. 1982) (quoting Schmanski v. Church of St. Casimir of Wells, 243 Minn. 289, 292, 67 N.W.2d 644, 646 (1954)). The question of breach of duty is generally one of fact for the jury; summary judgment is only proper if "the material facts are undisputed and as a matter of law compel only one conclusion." Sauter v. Sauter, 244 Minn. 482, 486, 70 N.W.2d 351, 354 (1955).

The evidence offered raises many factual nuances. Because we must view them in the light most favorable to appellant, summary judgment is improper. It is for a jury to determine whether Arlt and Duoos exercised sufficient care in supervising the decedent in the dangerous highway environment.[3] As to Ihnen, we recognize that there is substantial evidence of caution in his driving. However, the ultimate decision as to whether Ihnen's precautionary steps were sufficient is also for the fact-finder.

We emphasize that our ruling in no way implies a belief that due care was not exercised in this case. Rather, we simply believe that the appellant has raised sufficient evidence of negligence to defeat the motions for summary judgment.

Reversed and remanded.

[ ]1 The testimony was conflicting as to whether Brian's sister exited the vehicle before or after the accident, but the issue is not relevant on appeal.

[ ]2 William Duoos was made a third-party defendant. The district court's summary judgment ruling dismissed the entire action.

[ ]3 The parties make substantial arguments on the issue of whether Arlt had transferred his duty of care to Duoos, the decedent's father. We believe the issue of transfer of duty is one of fact for the jury, as it depends upon what a reasonable person would believe as to who was responsible for the child when the accident occurred.