This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. 480A.08, subd. 3 (1998).


Collin Evan Thorpe, et al.,


Elsie L. Norris,

John Carroccio, et al.,

Filed December 28, 1999
Schumacher, Judge

Washington County District Court
File No. CX983292

Scott R. Carlson, Duckson & Carlson, LLC, 10 South Fifth Street, Minneapolis, MN 55402 (for appellants)

Christopher S. Hayhoe, Felhaber, Larson, Fenlon & Vogt, P.A., 4200 US Bank Place, 601 Second Avenue South, Minneapolis, MN 55402 (for respondent)

Considered and decided by Schumacher, Presiding Judge, Crippen, Judge, and Holtan, Judge.[*]

U N P U B L I S H E D   O P I N I O N


Appellants Colin Evan Thorpe and Cynthia Jo Webber Thorpe sued respondent Elsie L. Norris and others for breach of contract and "intentional/negligent misrepresentation" in connection with the Thorpes' purchase of a home from Norris. Norris moved for summary judgment, contending she did not make a misrepresentation. The court granted partial summary judgment in Norris's favor. We affirm.


In connection with the sale of her home to the Thorpes, Norris completed a Real Estate Transfer Disclosure Statement. At the beginning of the document, in a section entitled "Sellers Information," the form states that

[t]he following are representations made by the Seller(s) to the extent of the Seller(s) actual knowledge. This information is a disclosure and is not intended to be part of any contract between the Buyer and Seller.

The form includes a series of questions asking about "environmental concerns." One of the questions asks, "Are you aware of the presence of any of the following: * * * Asbestos?" In answer to this question, the form gives the choices "yes," "no," and "unknown." Norris answered "no" to the question concerning asbestos, as she did to all the questions in that section. In her affidavit supporting her motion for summary judgment, Norris explained her answer this way:

The form presented me with three options in responding to this question: Yes, No, or Unknown. I answered the question "No" because I was not aware of the presence of asbestos. I did not think that answering the question "Unknown" made any sense, since I knew that I had no awareness of the presence of asbestos in my home. The answer I gave to this question was true; I was not aware of the presence of asbestos in my home.

The Thorpes later discovered that the house contained a substantial amount of asbestos. They sued Norris and others, alleging in relevant part that by answering "no"--instead of "unknown"--Norris negligently misled them into believing there was no asbestos in the house. For the purposes of this appeal, the Thorpes do not dispute that Norris was unaware of the presence of the asbestos.


On an appeal from summary judgment, we ask whether there are any genuine issues of material fact in dispute, and whether the trial court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). We review de novo the district court's interpretation of the law. Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn. 1990). We view the evidence in the light most favorable to the party against whom summary judgment was granted and accept as true that party's factual allegations. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). The interpretation of a written document is a question of law we review de novo. VanderLeest v. VanderLeest, 352 N.W.2d 54, 56 (Minn. App. 1984). Summary judgment is mandatory against a party with the burden of proof that fails to establish an essential element of its claim because that failure renders all other facts immaterial. Lloyd v. In Home Health, Inc., 523 N.W.2d 2, 3 (Minn. App. 1994).

Minnesota has adopted the definition of negligent misrepresentation found in the Restatement (Second) Torts 552:

One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.

Florenzano v. Olson, 387 N.W.2d 168, 174 n.3 (Minn. 1986).

The Thorpes contend that Norris negligently misled them by answering "no" to the asbestos question. Because the "unknown" response does not make any sense in the context of a question asking about the seller's awareness, the Thorpes contend that a reasonable person would have understood the question to really be asking about the presence of asbestos on the property. According to the Thorpes, a reasonable person would have answered "yes" if the person knew there was asbestos on the property, "no" if the person knew there was not, and "unknown" if the person did not know if it was there or not.

But Norris's answer to the asbestos question was true; she was not aware that there was asbestos on the property. The fact that the form included the nonsensical "unknown" choice does not change that. In order to prove their case for negligent misrepresentation, the Thorpes must prove that Norris supplied them with false information. Because Norris's answer was true, the Thorpes cannot satisfy this element of their prima facie case. As a result, the district court was correct to grant Norris summary judgment. See Lloyd, 523 N.W.2d at 3 (summary judgment mandatory against party with burden of proof that fails to establish essential element of claim).


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