This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2000).






Ming-Xiu Lou, et al.,





James Chang, et al.,




Filed October 16, 2001

Reversed and remanded
Gordon W. Shumaker, Judge


Dakota County District Court

File No. C09910243


Katherine A. Brown-Holmen, Mark K. Thompson, Dudley and Smith, P.A., 2602 Firstar Center, 101 East Fifth Street, St. Paul, MN† 55101 (for appellants)


Timothy J. Eiden, Carrie L. Hund, Hansen, Dordell, Bradt, Odlaug & Bradt, P.L.L.P., 3900 Northwoods Drive, Suite 250, St. Paul, MN 55112-6973; and


Steven C. OíTool, 7401 Metro Boulevard, Suite 555, Edina, MN 55439 (for respondents)


††††††††††† Considered and decided by Schumacher, Presiding Judge, Shumaker, Judge, and Parker, Judge.*

U N P U B L I S H E D†† O P I N I O N


††††††††††† After granting respondentsí motion to exclude certain liability and causation evidence in this landlord and tenant negligence action, the district court granted respondentsí motion to dismiss the case because appellantsí remaining evidence would not establish a prima facie case.† Appellants challenge the courtís evidentiary rulings and judgment of dismissal.† We reverse and remand.


††††††††††† In her amended complaint, appellant Ming-Xiu Lou alleges that she suffered a permanent knee injury when she fell three separate times on an outdoor stairway at the home of respondents James and Nancy Chang, where Lou and her husband, appellant Yao-Qun Lin, rented basement living quarters.† Lou alleges that the stairway was ďpoorly maintained and lacked sufficient lighting,Ē and that the Changs were negligent both in failing to provide proper lighting and to remove ice and snow from the premises.

††††††††††† The principal evidence in the case consists of the deposition testimony of the parties and of Louís orthopedic surgeon.† The depositions reveal many factual disputes as to liability, causation, and damages.

††††††††††† On the day the jury trial was to begin, respondents moved in limine to exclude testimony about two of Louís alleged falls on unspecified dates in December 1996 and January 1997, and to exclude in its entirety the testimony of Louís orthopedic expert.† The district court granted the motion.† Upon that ruling, the respondents moved to dismiss the action.† The court granted that motion.

††††††††††† As to evidence regarding Louís alleged falls in December 1996 and January 1997, the court explained that Louís lack of specificity was fatal to her claim:

That in failing to allege with specificity the dates on which Ms. Lou claims to have fallen in December, 1996 and January, 1997 and also because [appellants] cannot identify the dates on which they advised [respondents] that the exterior lights in question were not properly functioning with respect to any of the three alleged incidents, [appellants] cannot provide a jury with a sufficient basis upon which to determine whether [respondents] were negligent in acting or failing to act with respect to the alleged incidents.


††††††††††† In her deposition, Lou testified that her first fall was on October 31, 1996.† The testimony also revealed that she fell twice more on the same exterior stairway sometime in December 1996 and in January 1997.† The particular dates of those falls were not specified.

††††††††††† Both Lou and Lin testified in their depositions that early in their occupancy of the basement of the Chang home, and before the fall on October 31, 1996, they called to the Changsí attention the darkness in the area of the ingress and egress to their residence.† Lou testified that she was concerned because she goes to work very early in the morning when it is still dark outside.† Lin testified that he asked James Chang where the switch for the exterior lights was and that Chang refused to tell him and merely replied that those lights did not work.† There is some evidence, albeit not particularly clear, that Lou told Nancy Chang about her October fall very soon after it happened.

††††††††††† Louís orthopedist, Dr. Mark Sigmond, testified in his deposition that Lou sustained a lateral meniscus tear to the right knee, that it is a permanent injury, and that the cause was her falls:

I would attribute her left knee injury consisting of the lateral meniscus tear to the fall that she described when she first saw me, which would include October of 1996, December of 1996, January of 1997.


Dr. Sigmond was not able to specify which fall in particular caused the tear.

††††††††††† Most of the liability facts are disputed by the Changs in their deposition testimony, and some of the medical history Lou gave to Dr. Sigmond was inconsistent with a history contained in other medical records.

††††††††††† Appellants challenge the district courtís dismissal of their action, citing as error the ruling excluding the liability and medical evidence.


††††††††††† Although the procedural vehicle through which the district court dismissed this action was an order excluding evidence, in effect the court granted a summary judgment. When the district court considers evidence outside the pleadings, a motion to dismiss for failure to state a claim is treated as a summary judgment.† Minn. R. Civ. P. 12.02(e).† On an appeal from a summary judgment, we determine whether there are any genuine issues of material fact to be resolved through a trial and whether the district court erred in its application of the law. †Gradjefick v. Hance, 627 N.W.2d 708, 711 (Minn. App. 2000).

††††††††††† Summary judgment dismissing a claim is appropriate as a matter of law when the record reveals a complete absence of proof of an essential element of the claim.† Id.† To survive a summary judgment of dismissal in a negligence action, the plaintiff must show that there is prima facie evidence of actionable negligence.† Id.

††††††††††† A prima faciecase of negligence requires evidence of (1) a duty owed by the defendant to the plaintiff; (2) the defendantís breach of that duty; (3) an injury to the plaintiff; and (4) a causal link between the breach and the injury.† Id.

††††††††††† A landowner has a duty to take reasonable steps to protect persons on the land from injury from foreseeable dangerous conditions, unless the risk of harm is obvious. Rinn v. Minn. State Agric. Socíy, 611 N.W.2d 361, 364 (Minn. App. 2000).† If the landowner should have anticipated the possibility of harm despite the injured personís knowledge of the danger, the landowner can still be held liable.† Id.† Ordinarily, the landowner can be held liable only if he had actual or constructive knowledge of the dangerous condition.† Id. at 365.

††††††††††† Of concern to the district court were the lack of evidence of the specific dates of the December and January falls; the lack of proof of the dates on which appellants told the Changs that the exterior lights were not working; and the inability of the medical expert to state which particular fall caused Louís knee injury.

††††††††††† A party cannot rely on speculation to demonstrate the existence of a genuine fact issue when opposing a motion for summary judgment.† Johnson v. Van Blaricom, 480 N.W.2d 138, 140 (Minn. App. 1992).† Moreover, evidence can be so general and vague that inferences to be drawn from it would be little more than guesses.† But certainty is not required.† See Lundgren v. Eustermann, 356 N.W.2d 762, 765-66 (Minn. App. 1984) (stating nonmoving party need not produce clear and convincing evidence to defeat a summary judgment motion), revíd. on other grounds, 370 N.W.2d 877 (Minn. 1985).† Nor is it always necessary that matters be proved withexacting precision.† Id.

††††††††††† Based on the deposition testimony, there will be competent evidence that the Changs rented living quarters to Lou and Lin; that the Changs knew from the outset that there was no exterior lighting to adequately illuminate the stair on which Lou allegedly fell; and that James Chang admitted that the exterior light never worked.† There will be competent evidence that Lou fell three times on the same dark stairway and that nothing about the stair or the lighting had materially changed between the falls.† An ostensibly qualified medical expert will testify that one or more of the falls on the same stair caused Louís knee injury.† Because there is competent evidence that the instrumentality of the injury was the same in all three falls, the inadequate lighting existed during all three falls, the Changs knew of the lack of lighting before any of the falls, and the Changs had control of the lighting at all times, it is not necessary to be absolutely precise as to which fall caused the meniscus tear or as to the exact dates of the December and January falls.† The overriding issue is one of credibility.† If the jury believes the evidence offered by Lou and Lin, the jury will have a basis for concluding that the Changsí continuous negligence, spanning all three falls, caused Louís injury.† Thus, it would be unnecessary to pinpoint exactly the date of the fall that caused the tear.† In a summary judgment motion, the district court must give to the nonmoving party the benefitof the view of the evidence most favorable to that party and must resolve factual doubts and inferences against the moving party.† Am. Druggists Ins. v. Thompson Lumber Co., 349 N.W.2d 569, 573 (Minn. App. 1984).

††††††††††† We hold that the appellants have offered sufficient competent evidence to create fact issues on the elements of negligence.† Those issues are disputed by respondentsí competent evidence.† In this posture, the case is inappropriate for dismissal and the appellants are entitled to a trial.† However, we do not intend by this opinion to suggest anything about the merits of the claim or the defense or to intimate how the district court should rule on appropriate objections or motions during and after the trial.

††††††††††† Reversed and remanded.

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