may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Ungerecht Logging, Inc.,
defendant and third-party plaintiff,
Filed October 20, 1998
Toussaint, Chief Judge
Beltrami County District Court
File No. C5971439
Thomas L. D'Albani, P.O. Box 978, Bemidji, MN 56619 (for appellant)
Charles Powell, 713 Beltrami Avenue, P.O. Box 908, Bemidji, MN 56619 (for respondent)
Considered and decided by Toussaint, Chief Judge, Davies, Judge, and Peterson, Judge.
Appellant Richard Reinarz appeals from summary judgment in favor of respondent Frank Pelawa on his third-party indemnity claim. Ungerecht Logging, Inc. sued Reinarz for negligently allowing one of his cows to run onto a public highway, where Ungerecht's truck collided with it. Reinarz alleged that Pelawa was responsible for the cow's escape by unchaining a gate that fenced in his grazing cattle on the night of the accident. Finding Reinarz's allegation to be "pure speculation," the district court entered summary judgment for Pelawa. Because Reinarz presented no evidence giving rise to a genuine issue of material fact as to Pelawa's opening of the gate on the night of the truck accident, we affirm.
On appeal from summary judgment, we ask two questions (1) whether there are any genuine issues of material fact; and (2) whether the lower court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). This 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). The nonmoving party, however, must establish a genuine issue of material fact through affirmative evidence tending to support each element of his or her claim. Carlisle v. City of Minneapolis, 437 N.W.2d 712, 715 (Minn. App. 1989). Mere speculation or conjecture, without some concrete evidence, is not enough to avoid summary judgment. Bob Useldinger & Sons, Inc. v. Hangsleben, 505 N.W.2d 323, 328 (Minn. 1993); Fownes v. Hubbard Broadcasting, Inc., 302 Minn. 471, 473, 225 N.W.2d 534, 536 (1975).
Reinarz contends that a genuine issue of material fact exists as to whether Pelawa opened up the northern gate on July 29, 1996, the night of the accident. We disagree. No facts support Reinarz's contention that Pelawa unchained and/or opened the northern gate on the night in question. The evidence submitted by Reinarz establishes that Pelawa ran down Reinarz's southern gate in November 1996, three months after the truck accident. This fact is not in dispute and Pelawa readily admits responsibility for this incident. The southern gate is the subject of a long-time dispute between Reinarz and Pelawa because it blocks entry to a township road that provides access to Pelawa's hunting property. Moreover, Reinarz admitted in deposition that he had not seen Pelawa near his northern gate where the accident occurred and had no evidence that Pelawa touched any of his gates before November 1996. Without additional facts, Reinarz's assertion that Pelawa opened his northern gate on July 29, 1996 is conjecture and cannot withstand summary judgment.