This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




Darlene Flagg, et al.,



Fairview Ridges Hospital,


Filed May 25, 1999


Toussaint, Chief Judge

Dakota County District Court

File No. CX986397

John O. Murrin, 4018 West 65th Street, Edina, MN 55435 (for appellants)

Elliot L. Olsen, Gislason, Dosland, Hunter & Malecki, Opus Center, Suite 215E, 9900 Bren Road East, Minnetonka, MN 55343 (for respondent)

Considered and decided by Toussaint, Chief Judge, Huspeni, Judge,[*] and Holtan, Judge.[**]


TOUSSAINT, Chief Judge

Appellant Darlene Flagg challenges summary judgment for respondent Fairview Ridges Hospital (Fairview) on her personal-injury claim arising from a slip-and-fall accident that occurred in the hospital's hallway. Arguing there is a genuine issue of material fact, Flagg relies on (1) her affidavit providing that the hallway floor was very slippery; (2) her claim that a man who helped her stand up was wearing a laboratory coat and said he "knew this would happen, the floors are too slippery"; and (3) the affidavit of an expert providing it "is more likely than not" that "improper floor preparation" caused Flagg to fall. Because the district court did not err in granting summary judgment, we affirm.


On appeal from summary judgment, this court asks whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). The court views the evidence in the light most favorable to the nonmoving party. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). Summary judgment is mandated

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

Carlisle v. City of Minneapolis, 437 N.W.2d 712, 715 (Minn. App. 1989) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986)). The elements of a negligence action are duty, breach of that duty, the breach proximately caused plaintiff's injury, and injury to the plaintiff. Johnson v. State, 553 N.W.2d 40, 49 (Minn. 1996).

A. Flagg's Affidavit

Flagg argues that the district court erred in disregarding her affidavit on the ground it was inadmissible and that her affidavit creates a genuine issue of material fact. Evidence that is offered to defeat a motion for summary judgment must be admissible at trial. Hopkins by LaFontaine v. Empire Fire & Marine Ins. Co., 474 N.W.2d 209, 212 (Minn. App. 1991).

[T]here is no genuine issue of material fact for trial when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party's case to permit reasonable persons to draw different conclusions.

DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997). A genuine issue of material fact "`must be established by substantial evidence.'" Id. at 70 (quoting Murphy v. Country House, Inc., 307 Minn. 344, 351, 240 N.W.2d 507, 512 (1976)).

In her affidavit, Flagg explained that she "believe[d] there were some imperceptible water or liquid spots" on the floor. Whether "imperceptible water or liquid spots" were on the floor is not an issue of material fact. Fairview would not be negligent for failing to take precautions against imperceptible spots on the floor because it could not have known about something that was imperceptible. See Sarsfield v. St. Mary's Hosp., 268 Minn. 362, 364, 129 N.W.2d 306, 308 (1964) (providing landowner or possessor of premises "has a duty to make reasonable inspections of the premises and to warn of dangerous conditions of which he knows or should know".

The affidavit also maintained that the hallway floor was "too slippery" and "highly waxed." Presuming the allegations to be true, the fact that Fairview waxed its hallway floor is not a material fact because it is not a basis for liability. See Dunham v. Hubert W. White, Inc., 203 Minn. 82, 83-87, 279 N.W. 839-41 (1938) (concluding plaintiff's claim that floor was "highly polished and very slippery" was insufficient to establish liability in negligence claim). The fact that Flagg slipped on the floor is also insufficient to show that Fairview negligently maintained the floor. See id. at 86, 279 N.W. at 841 ("Negligence is not proved by * * * an isolated occurrence."). Even if Flagg's affidavit were admissible, because the facts alleged in the affidavit are not material, we conclude that the district court did not err in deciding the affidavit fails to raise a genuine issue of material fact. See Wesala v. City of Virginia, 390 N.W.2d 285, 289 (Minn. App. 1986) (affirming summary judgment against appellant who was injured after slip and fall where appellant presented no evidence of breach of duty), review granted (Minn. Aug. 20, 1986), and appeal dismissed (Minn. Feb. 24, 1987).

B. Statement of Man Who Helped Flagg

In ruling on the motion for summary judgment, the district court concluded the statement of the man who helped Flagg is inadmissible because Flagg could not prove the man was a Fairview employee, citing Minn. R. Evid. 801(d)(2)(D)(explaining statement is not hearsay if it is offered against party and is "a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship"). Flagg argues this conclusion is erroneous, claiming the court is required to accept as true her assertion that the man was a Fairview employee. See K.B. v. Evangelical Lutheran Church in Am., 538 N.W.2d 152, 156 (Minn. App. 1995) (explaining that on appeal from summary judgment, this court accepts as true factual allegations produced by nonmoving party).

But even if the declarant was a Fairview employee, the district court did not err in concluding the statement is inadmissible. Because Flagg is unable to identify the declarant's alleged job at Fairview, she is unable to show the statement concerned a matter within the scope of his employment. Flagg urges this court to apply Hill v. F. R. Tripler & Co., 868 F. Supp. 593 (S.D.N.Y. 1994), to take a broader interpretation of scope of employment within the meaning of rule 801(d)(2)(D) and to conclude the statement is admissible. But this court's standard of review does not permit determining scope of employment de novo. Because of the lack of evidence regarding the declarant's scope of employment, we conclude that the district court did not err in deciding the statement is inadmissible.

Additionally, the man's statement that he "knew this would happen, the floors are too slippery" is inadmissible as a party admission because it was a mere expression of opinion, not one of fact. See Albertson v. Chicago, Milwaukee, St. Paul & Pac. R.R., 242 Minn. 50, 59, 64 N.W.2d 175, 182 (1954) ("It is well recognized that the declaration of an agent to be binding as an admission of his principal * * * must be a statement of fact as distinguished from a mere expression of opinion.")(citations omitted). We therefore conclude that the district court did not err in deciding the man's statement is inadmissible.

C. Affidavit of Flagg's Expert

Flagg argues the district court erred in concluding the expert's affidavit is inadmissible, claiming an expert's opinion does not have to be based on firsthand knowledge, and citing Minn. R. Evid. 703 (providing that facts or data on which expert bases opinion may be those perceived by or made known to expert at or before hearing). But an expert should not be allowed to testify if the opinion is based on speculation. Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 155 (Minn. 1982) (stating expert must base opinion on facts sufficient to form adequate foundation). When substantial time has passed between the date of an accident and the date of an expert's examination, an expert's opinion may be admissible if the condition of the item being tested has not substantially changed since the time of the incident at issue. See Bohach v. Thompson, 307 Minn. 332, 336-38, 239 N.W.2d 764, 767 (1976) (upholding admission of expert testimony, even though expert's investigation began three years after accident, where record contained no evidence of significant change in condition).

Here, based on the date of the affidavit, Flagg's expert did not examine the floor until June 1997, which was a year and six months after Flagg's accident. The record contains no evidence that the floor was in substantially the same condition when the expert examined it as it was on December 19, 1995. Cf. Sanchez v. Waldrup, 271 Minn. 419, 430, 136 N.W.2d 61, 68 (1965) ("Without more definite knowledge as to the true condition of the highway * * *, the expert's opinion was of no value."). Even if it were admissible, because the expert's opinion was based on surmise and speculation, it did not raise a genuine issue of material fact, and we therefore conclude the district court did not err in not considering the expert's affidavit for purposes of summary judgment.

No genuine issues of material fact exist, and appellant failed to present any evidence that Fairview breached a duty it owed to her. See Carlisle, 437 N.W.2d at 715 ("[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.") (quoting Celotex Corp., 477 U.S. at 323, 106 S. Ct. at 2552). Because the district court did not err in granting summary judgment for Fairview, we affirm.


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

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