This opinion will be unpublished and

may not be cited except as provided by

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




Thomas Ledwein,



Target Stores, a division of Dayton Hudson Corporation, et al.,


Filed June 17, 1997


Parker, Judge

Hennepin County District Court

File No. 9512068

Robert F. Mannella, Gary T. LaFleur, Babcock, Locher, Neilson & Mannella, 118 East Main Street, Anoka, MN 55303 (for appellant)

Susan D. Hall, Scott M. Rusert, Cosgrove, Flynn & Gaskins, P.L.L.P., 2900 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for respondents)

Considered and decided by Parker, Presiding Judge, Toussaint, Chief Judge, and Harten, Judge.



Appellant Thomas Ledwein challenges a trial court order granting summary judgment in favor of respondents Target Stores and Academy Broadway. Concluding that Ledwein failed to establish a causal connection between the construction of his tent and the injuries he sustained when the tent caught fire, the trial court granted Target's and Academy's motions for summary judgment. We affirm.


This case arose from a camping accident that occurred when Ledwein, his two brothers, and three friends drove to McGregor, Minnesota, to attend the fishing opener. The party set up camp and built a campfire at least 20 feet from the tents. The men prepared dinner by the fire and later went into town to have drinks at a local bar. Ledwein and other members of his group testified that the fire "was pretty much out" before they went into town and "out" before the last member of their party went to bed sometime before midnight.

Ledwein used a Coleman Focus 5 heater to provide warmth at night. The heater was designed for use when camping; however, the propane tank recommended by the manufacturer for use with the unit would provide heat for only four to six hours. A label affixed to the heater warned against (1) placing materials too close to the unit; (2) operating the heater while asleep; (3) connecting the heater to a larger or remote propane source; or (4) altering the unit in any way.

Sometime before the camping trip, Ledwein altered the heater to accommodate a 20-pound propane tank that would fuel the unit for eight hours or more. He drilled a hole through the warning label on the back of the heater and attached a six-foot hose that was attached to the larger propane tank.

Before retiring, Ledwein lit the heater and placed it inside the tent facing his cot. The hose extended outside the tent to the attached propane tank. Shortly before midnight, Ledwein began feeling heat around him. He awoke to find himself in a ball of fire, with the flaming heater hose waving back and forth. The tent was totally consumed, and Ledwein sustained severe second- and third-degree burns on his face and upper body. A friend sharing the tent with Ledwein was not injured.

Ledwein commenced an action against Target Stores, the seller of the tent, and Academy, the tent distributor, claiming breach of warranty, negligence, and strict liability. Ledwein argued the tent was defective because it was not constructed of flame-resistant material as required by law. Shortly thereafter, Ledwein moved for summary judgment as to liability. Target and Academy then moved for summary judgment as to all claims. Concluding that Ledwein failed to establish a prima facia case of liability for lack of causation, the trial court dismissed Ledwein's claims. The trial court then further concluded that the issues of strict liability and breach of warranty did not need to be reached.


Summary judgment shall be rendered

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. On appeal from summary judgment, we ask "whether there are any genuine issues of material fact" and "whether the lower courts erred in their application of the law." State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). "[T]he reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted." Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

When a motion for summary judgment is brought, the party opposing the motion must present specific facts demonstrating a genuine issue of material fact. Minn. R. Civ. P. 56.05. When a party, after adequate time for discovery, fails to establish an essential element of the party's case, summary judgment is appropriate. Carlisle v. City of Minneapolis, 437 N.W.2d 712, 715 (Minn. App. 1989) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986)).

1. At the outset, we note that Ledwein's argument that the trial court's memorandum cannot be considered part of the order for want of incorporation is misplaced. The 1985 advisory committee note to Minn. R. Civ. P. 52.01 provides in part:

The changes to Rule 52.01 are intended to permit trial courts to make findings of fact and conclusions of law orally or in written memorandum. * * * The committee also determined that the rule should be changed to permit a written opinion or memorandum of decision to stand as findings of fact and conclusions of law in certain cases.

Furthermore, this court has stated:

We note that the 1985 amendments to Minn. R. Civ. P. 52.01 provide that "[i]t will be sufficient if the findings of fact and conclusions of law are stated orally and recorded in open court following the close of the evidence or appear in an opinion or memorandum of decision filed by the court or in an accompanying memorandum." While this provision seemingly dispenses with the need for specific language of incorporation, it does not affect the present case since the trial court's judgment and order denying a new trial took place before the effective date of the amendment, July 1, 1985.

Nelson v. Nelson, 384 N.W.2d 468, 471 n.1 (Minn. App. 1986). We conclude, therefore, that the trial court's memorandum need not be formally incorporated to be considered part of the order. We note that the memorandum and trial court order were both considered in deciding this case.

2. Ledwein argues that the trial court erred in granting respondents' motions for summary judgment, contending there are genuine issues of material fact in dispute that should have precluded the order. He claims that his two expert witnesses, Johnson and Berke, both expressed the opinion that the tent fire was not caused by the altered propane heater but was instead ignited by a stray ember from a fire. Ledwein also contends his experts were of the opinion that, once the tent was ignited by the stray ember, it burned out of control because the tent was not constructed to be flame-resistant as required by Minnesota law. Minn. Stat. § 325F.04 (1996) (tents manufactured for sale in this state must meets [CPAI 84] standards of flame resistancy). Because there are two expert opinions that pose alternative theories as to the start of the fire, Ledwein argues, disputed genuine issues of material fact exist, making summary judgment improper.

Proximate cause is usually a question of fact that cannot be disposed of on summary judgment. Abresch v. Northwestern Bell Tel. Co., 246 Minn. 408, 412, 75 N.W.2d 206, 209 (1956). However, summary judgment may be appropriate on the issue of proximate cause if the "material facts are undisputed and as a matter of law compel only one conclusion." Illinois Farmers Ins. Co. v. Tapemark Co., 273 N.W.2d 630, 633-34 (Minn. 1978).

[M]ere proof of the happening of the accident or proof that death or injury was the result of the act of another, without proof of negligence or its causal relation to the result complained of, is not sufficient.

Elias v. City of St. Paul, 350 N.W.2d 442, 443-44 (Minn. App. 1984) (quoting Hagsten v. Simberg, 232 Minn. 160, 163-64, 44 N.W.2d 611, 613 (1950)). A claim of causation may not rest on mere conjecture. Elias, 350 N.W.2d at 444.

It is not incumbent on the defendant to show how the accident happened. If the cause of its happening is not established, the defendant is entitled to prevail. The proof must establish causal connection beyond the point of conjecture. It must show more than a possibility of injury from the defendant's acts. It must be more than merely consistent with plaintiff's theory of how the accident occurred.

Id. (quoting Kludzinski v. Great Northern Ry.Co., 130 Minn. 222, 224, 153 N.W. 529 (1915))

Furthermore, the sufficiency of factual foundation for expert testimony and its admissibility are matters within the trial court's discretion, and its decision will not be disturbed absent a clear abuse of discretion. Dunshee v. Douglas, 255 N.W.2d 42, 47 (Minn. 1977).

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert * * * may testify thereto in the form of an opinion or otherwise.

Minn. R. Evid. 702 (1988). The expert must base his opinion on facts sufficient to form an adequate foundation for an opinion, however, and he should not be allowed to speculate. Hudson v. Snyder Body Inc., 326 N.W.2d 149, 155 (Minn. 1982) (citation omitted). This is necessary to ensure that the expert testimony actually aids the fact-finder in reaching an accurate conclusion from the facts presented. Hudson, 326 N.W.2d at 154.

The trial judge determined that in order for Ledwein to prevail on any of his causes of action, he would have to show that his injuries were in fact caused by a defect in the construction of the tent. The trial judge found that Ledwein's expert, Johnson, expressed the opinion that the tent fire was not caused by the heater or the propane accelerant. Instead, Johnson concluded that a stray ember ignited the tent and Ledwein was injured because the tent was not made of legally required, self-extinguishing, flame-resistant materials. The trial judge noted, however, that Johnson made no examination of the tent or remains from the fire and based his opinion solely on witness testimony. The trial judge found that all the witnesses, including Ledwein, testified that the campfire was nearly out before they went to the bar and clearly out upon examination before they went to bed. The trial judge also found that Ledwein failed to show that the tent would not have self-extinguished had the burning, propane-spewing hose been removed. The trial judge noted that Minn. Stat. § 325F.04 requires tents to be flame-resistant, but not flame-proof. Therefore, the trial judge concluded, a flame-resistant tent would still burn if a constant flame source, like a flaming propane hose, was present at all material times.

The trial judge also ruled the foundation for the testimony of Ledwein's expert, Berke, to be speculation. The trial judge noted that Berke's opinion was also based solely on witness testimony and offered no evidence as to whether the tent would have self-extinguished had the flaming hose not been present. Given the witness testimony, the trial judge concluded that Ledwein had not shown that the tent was defectively manufactured and thus the cause of his injuries. Based on this conclusion, the trial judge declined to reach Ledwein's breach of warranty and strict liability claims.

The evidence supports the findings and conclusions of the trial judge. Our supreme court has long recognized that

the customary way of securing the benefit of the expert's scientific skill is to ask him [or her] to assume the truth of certain facts and then give [an] opinion based on such hypothesis.

Lee v. Crookston Coca-Cola Bottling Co., 290 Minn. 321, 326, 188 N.W.2d 426, 430-31 (1971) (citing McCormick, Evidence § 14, p. 30). However, "the universal requirement for this type of hypothetical question is that the facts assumed must be supported by competent evidence in the case." Id.

Except for the opinion testimony of Ledwein's expert witnesses, the record is devoid of any evidence upon which a finding of causation could be sustained. Both experts hypothesized that a stray spark or ember from Ledwein's, or a nearby, campfire ignited the tent. There is no eyewitness or other direct evidence of such stray sparks or embers. Without any firsthand knowledge from either examining fragments of the tent or ashes from the fire, both experts simply speculate to reach the conclusion that the tent failed to self-extinguish when it was ignited by an ember.

Both of Ledwein's experts conceded that they did not perform any scientific tests, but instead relied on witness testimony in forming their conclusions. The record makes clear that Ledwein's expert, Johnson, did not assume as fact that the rigged, propane-spewing heater hose could have caused the fire. There were, however, undisputed facts established by the eyewitness testimony of Ledwein and his friends that the campfire was almost out prior to their trip to the bar and out before they went to bed. Again, there was no eyewitness testimony that a spark or ember fell upon the tent.

The record also makes clear that Ledwein's expert, Berke, expressed an opinion that either radiant or convective energy from the heater in the tent could be considered as possible causes of the fire. Although Ledwein himself testified that he awoke in a "ball of fire" and saw the disconnected heater hose ablaze and waving back and forth, Berke discounted the heater as the cause of ignition. Furthermore, even assuming any of Berke's hypotheses to be true, discounting the heater as the source of ignition is not based on the evidence. See Lee, 290 Minn. at 327, 188 N.W.2d at 431.

We conclude, therefore, that Berke and Johnson's foundational assertions are contrary to the evidence on the record and therefore constitute conjecture insufficient to withstand summary judgment. See Minn. R. Civ. P. 56.05 (when a motion for summary judgment is made and supported as provided in Rule 56, an adverse party may not rest upon the mere averments or denials but must present specific facts showing there is a genuine issue for trial). The opinions of Ledwein's experts are "without proper foundation, purely speculative, * * * and inadmissible." See Lee, 290 Minn. at 327, 188 N.W.2d at 431. The altered heater and detached, flaming propane hose were ongoing inside the tent. Minn. Stat. § 325F.04 requires tentage to be flame-resistant, not flame-proof. See Minn. Stat. § 325F.04.

Absent evidence to show that an otherwise flame-resistant tent would be required to self-extinguish in the presence of an ongoing, ignited accelerant, we cannot say that summary judgment was improper. Because we hold that Rule 56.05 disposes of this case, we need not address Ledwein's other arguments.