This opinion will be unpublished and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

C7-96-2603

Valerie Ann Palodichuk,

Appellant,

vs.

James Leonard Lesher,

Respondent,

Rick Garin,

Respondent.

Filed June 24, 1997

Affirmed

Holtan, Judge

[*]

Hennepin County District Court

File No. 963709

James S. Ballentine, Larry E. Stern, Schwebel, Goetz, Sieben & Moskal, P.A., 5120 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402-2246 (for appellant)

Timothy J. Leer, Paul S. Hopewell, Johnson & Condon, P.A., Financial Plaza, 7235 Ohms Lane, Minneapolis, MN 55439-2152 (for respondent James Leonard Lesher)

Richard Garin, 225 14th Avenue South, South St. Paul, MN 55075 (pro se respondent)

Considered and decided by Huspeni, Presiding Judge, Willis, Judge, and Holtan, Judge.

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

HOLTAN, Judge

Valerie Palodichuk appeals from the district court's dismissal with prejudice of her complaint against respondent James Lesher. We affirm.

FACTS

Appellant Valerie Palodichuk and respondent Richard Garin were rear-seat passengers in a vehicle driven by respondent James Lesher. After Lesher stopped the car, Palodichuk and Garin were exiting when Garin slammed the car door, injuring Palodichuk.

Palodichuk sued both Garin and Lesher, alleging only that Garin was negligent. Lesher moved to dismiss the complaint under Minn. R. Civ. P. 12.02. Palodichuk opposed the motion on the basis of Minnesota's Safety Responsibility Act, Minn. Stat. § 170.54 (1996). This statute makes the operator of a motor vehicle the agent of the owner for the purpose of establishing liability. Palodichuk argued that Garin, although he was a rear-seat passenger, was "operating" the vehicle by opening the rear door and, thus, was Lesher's agent. The district court dismissed the complaint with prejudice, and this appeal followed.

D E C I S I O N

When reviewing cases dismissed for failure to state a claim on which relief can be granted, the only question before the reviewing court is whether the complaint sets forth a legally sufficient claim for relief. Elzie v. Commissioner of Pub. Safety, 298 N.W.2d 29, 32 (Minn. 1980). Pleadings should be dismissed for failure to state a claim only if it appears to a certainty that there are no facts consistent with the pleading that would support granting the relief demanded. Hedlund v. Hedlund, 371 N.W.2d 232, 234 (Minn. App. 1985).

Appellant contends the district court erred in finding that the Minnesota Safety Responsibility Act (Safety Act), Minn. Stat. § 170.54 (1996), does not provide for the vicarious liability of Lesher because Garin, the rear-seat passenger, was not "operating" the vehicle within the meaning of the statute. The Safety Act provides:

Whenever any motor vehicle shall be operated within this state, by any person other than the owner, with the consent of the owner, express or implied, the operator thereof shall in case of accident, be deemed the agent of the owner of such motor vehicle in the operation thereof.

Minn. Stat. § 170.54. The Safety Act is intended to make motor vehicle owners liable to those injured by their vehicle's operation where no such liability would otherwise exist. Jones v. Fleischhacker, 325 N.W.2d 633, 636 (Minn. 1982). Courts should construe the statute liberally to effectuate its purpose. Id. Palodichuk argues that our decision in Melchert compels us to adopt her construction of the statute. Melchert v. Melchert, 519 N.W.2d 223, 226 (Minn. App. 1994) (stating that under certain circumstances, the Safety Act does not require the "operator" to be inside the vehicle), review denied (Minn. Sept. 16, 1994).

It is unnecessary for us to decide whether Garin was an "operator" within the meaning of the Safety Act because deficiencies in the complaint support the district court's dismissal. The complaint fails to identify Lesher as the owner of the car and Lesher's brief on appeal asserts that his father is the owner. Although the district court's order states that respondent Lesher was the owner, this finding is unsupported by the pleadings. Minn. Stat. § 170.54 cannot be applied in the absence of an owner. The appellant failed to plead consent, either implied or express, to operation. Further, the complaint fails to allege any negligence by Lesher, or any theory under which Garin's alleged negligence could be imputed to Lesher.[1] At a minimum, pleadings must give the adverse party "fair notice" of the incident underlying the suit with "sufficient clarity to disclose the pleader's theory upon which his claim for relief is based." Northern States Power Co. v. Franklin, 265 Minn. 391, 394, 122 N.W.2d 26, 29 (1963). We agree with the district court that the complaint failed to set forth a legally sufficient claim for relief against Lesher. The complaint was properly dismissed.

Affirmed.

[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[ ]1 We also note that Palodichuk requested "Judgment against Defendant" although the complaint named two defendants.