This opinion will be unpublished and

may not be cited except as provided by

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




Jamal Echagdaly,



Metropolitan Council Transit Operations,

a political subdivision of the State of Minnesota,

defendant and Third-Party Plaintiff,


Glen George Moshier,

Third-Party Defendant.

Filed July 20, 1999


Amundson, Judge

Hennepin County District Court

No. P1-98-3094

Richard S. Eskola, Moore, Halsey & Eskola, L.L.C., PACO Office Center, Suite 160, 7260 University Avenue Northeast, Fridley, MN 55432 (for appellant)

Eric J. Magnuson and Mark A. Fredrickson, Rider, Bennett, Egan & Arundel, L.L.P., 2000 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for respondent)

Considered and decided by Amundson, Presiding Judge, Schumacher, Judge, and Schultz, Judge.[*]

U N P U B L I S H E D   O P I N I O N


Appellant challenges the grant of summary judgment, claiming that there is a genuine issue of fact regarding whether driver acted negligently in operating his vehicle.


Appellant Jamal Echagdaly was a bus passenger on February 21, 1995. The bus was parked at the side of the road while the bus driver was inside the gas station. Glen George Moshier was driving a vehicle with his mother in the direction of the bus, when he began to feel ill. He attempted to pull his car over to the side of the road, but he lost consciousness and his car struck the parked bus. Moshier and his mother were not injured. Echagdaly, however, stated that he saw a flash in his eye as his head hit the seat in front of him, injuring his eye, and that he now sees "floaters."

In order to prepare for an alcohol treatment program, Moshier had stopped drinking approximately two days before the accident. Prior to that, he had been consuming an average of 18 beers a day. Following the accident, Moshier was taken to the hospital, where doctors determined that he either fainted or had a seizure from alcohol withdrawal. They also determined that there were traces of cocaine and marijuana in his system that could have been used up to two days prior to the accident.

Because Moshier was uninsured, Echagdaly is suing the MCTO for surgery to repair his impaired vision. His doctor bills were approximately $500, and the surgery will cost about $9,000.

Relying on the doctor's testimony, the district court determined that because Moshier could not have known or prevented himself from passing out or having a seizure while he was driving, there was no negligent act and therefore uninsured motorist coverage is not applicable. It was further determined by the district court that Echagdaly failed to meet the tort threshold requirements of Minn. Stat. § 65B.51. The district court held that because Moshier was not negligent and there was insufficient evidence to meet the threshold tort requirements, summary judgment must be granted.


Echagdaly argues that Moshier's negligence is a fact issue to be determined by the jury. Echagdaly claims that the presence of cocaine and marijuana in Moshier's system raises an issue of whether he was negligent in choosing to operate a motor vehicle. Echagdaly also argues that a jury should determine whether Moshier's blackout was caused by his abuse of drugs.

Conversely, respondent Metropolitan Council Transit Operations (MCTO) argues that Moshier blacked out, or more likely had an epileptic seizure, and while the seizure may have been caused by drug use it was not predictable or preventable by Moshier. Therefore, MCTO reasoned that Moshier is not deemed to have acted negligently and any uninsured motorist coverage is barred.

The question is whether the evidence here warrants submitting to the jury the question of whether Moshier's blackout was caused by his own negligence. Although no Minnesota courts appear to have addressed the issue of negligence if a driver unexpectedly blacks out, tort treatises and case law outside this jurisdiction support finding the driver not negligent. More importantly, Echagdaly has failed to provide affirmative evidence that MCTO's doctor incorrectly determined that Moshier lost consciousness. Echagdaly only cites MCTO's doctor's own information that Moshier could have had cocaine or marijuana in his system around the time of the accident.

When a motion for summary judgment is made and supported, the nonmoving party must "present specific facts showing that there is a genuine issue for trial." Minn. R. Civ. P. 56.05. The Minnesota Supreme Court concluded that substantial evidence refers to legal sufficiency and not quantum of evidence. See DLH, Inc. v. Russ, 566 N.W.2d 60, 70-71 (Minn. 1997) (discussing the Supreme Court's summary judgment standards as they affect what constitutes a genuine issue for trial). Echagdaly merely cites the language of MCTO's doctor for proof that it is possible that a seizure did not cause Moshier to black out. But MCTO's doctor states that "within a reasonable degree of medical certainty" the cause for Moshier's loss of consciousness was due to a vasovagal syncope (epileptic seizure). Echagdaly provides no other affirmative proof to connect cocaine use or marijuana use to the cause of the accident. Therefore, we uphold the district court's grant of summary judgment and find that no genuine issue of material fact remains.

Because the negligence issue is decisive, we need not address the tort threshold issue.


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