This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Steven Wilson,



Polaris Industries, Inc.,


Filed November 10, 1998


Davies, Judge

Concurring Specially, Short, Judge

Hennepin County District Court

File No. 9611970

Kent M. Williams, Samuel D. Heins, Karla M. Gluek, Patrick J. Lee-O'Halloran, Heins, Mills & Olson, P.L.C., 700 Northstar East, 608 Second Ave. S., Minneapolis, MN 55402 (for appellant)

Kevin E. Giebel, Giebel & Gilbert, Roseville Professional Center, 2233 Hamline Ave., Suite 530, Roseville, MN 55113 (for appellant)

Erin K. Fogarty Lisle, Timothy D. Kelly, Richard A. Kaplan, George O. Ludcke, Kelly & Berens, P.A., 3720 IDS Center, 80 South Eighth St., Minneapolis, MN 55402 (for respondent)

Considered and decided by Davies, Presiding Judge, Schumacher, Judge, and Short, Judge.


Appellant contests the district court's grant of summary judgment in favor of respondent and denial of his motions for class certification, injunctive relief, leave to contact third parties, and to amend the complaint. We affirm.


Appellant Steven Wilson purchased two snowmobiles manufactured by respondent Polaris Industries. Each was equipped with an XTRA suspension system, which is attached to the body of the snowmobile by four bolts. Appellant discovered that these suspension bolts sometimes loosened or fell out. Once, a missing bolt caused a bracket inside one of his snowmobiles to shear off, damaging the heat exchanger. Later, a bolt fell out while appellant was operating the snowmobile, but appellant was not injured and the snowmobile was not damaged.

On each occasion, appellant's local Polaris dealer replaced the missing bolts and repaired the damage at no cost to appellant. Respondent later notified its customers that a "durability kit" had been developed to address the problem of loosening suspension bolts and that the kit would be installed by any authorized dealer at no cost to the customer.

Appellant filed a class-action complaint against respondent, alleging: (1) defective design and manufacture; (2) failure to warn; (3) negligence; (4) false and misleading advertising; (5) deceptive and unlawful trade practices; (6) fraud; and (7) breach of express and implied warranties. Appellant also moved: (1) for an injunction ordering respondent to inform owners of XTRA-equipped snowmobiles about problems with loosening suspension bolts; (2) to amend the complaint to add a claim for punitive damages; (3) to certify a plaintiff class of all owners of XTRA-equipped snowmobiles who have not had the durability kit installed; and (4) for leave to contact third parties who had informed respondent that they had had problems with their XTRA suspensions.

Respondent subsequently moved for summary judgment. Before the summary judgment hearing, appellant had not allowed his Polaris dealer to install a durability kit on either of his snowmobiles. The district court denied each of appellant's motions and granted respondent's motion for summary judgment. This appeal followed.



Summary judgment is proper when there are no genuine issues of material fact and either party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. On appeal from summary judgment, a reviewing court must determine: "(1) whether there are any genuine issues of material fact; and (2) whether the lower court erred in its application of the law." Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995).

A plaintiff must prove by a fair preponderance of the evidence every essential element of its case, including the existence of actual damages. Carpenter v. Nelson, 257 Minn. 424, 427-28, 101 N.W.2d 918, 921 (1960). Proof of actual damages is an essential element of appellant's claims against respondent. See LensCrafters, Inc. v. Vision World, Inc., 943 F. Supp. 1481, 1489 (D. Minn. 1996) ("actual injury" to complaining party is an explicit statutory condition precedent to recovery under Minn. Stat. §§ 325D.13, the unlawful trade practices act; under 325D.44, the deceptive trade practices act; under 325F.67, the false advertising statute; and under 325F.68-70, the consumer fraud statute); Patton v. Newmar Corp., 538 N.W.2d 116, 119 (Minn. 1995) (prima facie case of products liability requires showing that product defect caused injury); Hauenstein v. Loctite Corp., 347 N.W.2d 272, 276 (Minn. 1984) (plaintiff must prove connection between failure to warn and resulting injury); M.M.D. v. B.L.G., 467 N.W.2d 645, 646 (Minn. App. 1991) (actual damage is essential element of negligence action), review denied (Minn. May 23, 1991); Willmar Cookie Co. v. Pippin Pecan Co., 357 N.W.2d 111, 114 (Minn. App. 1984) (to prevail on breach of warranty claim, plaintiff must prove damages).

Two of appellant's claims are based on statutory sections that do not themselves explicitly require proof of damages. See Minn. Stat. §§ 325D.15 (1996) (unlawful trade practices act) and 325D.45, subd. 1 (1996) (uniform deceptive trade practices act). But another statute provides that those statutes, too, require proof of some actual damages when a party uses them to seek a private remedy. See Minn. Stat. § 8.31, subd. 3a (1996) (any person injured by violation of Minn. Stat. §§ 325D.15 or 325D.45 may bring civil action to recover damages); LensCrafters, Inc., 943 F. Supp. at 1489 (requiring plaintiff to prove "actual damages" under statutes).

"[T]here can be no recovery for damages which are remote, conjectural, or speculative." Carpenter, 257 Minn. at 428, 101 N.W.2d at 921. Appellant alleged the following damages: (1) mental and emotional distress from fear that the suspension bolts would loosen or fall out during use; (2) devaluation of the snowmobiles because of problems with the suspension system; and (3) costs and expenses associated with inspection, repair, or replacement of the suspension system. Each of these alleged damages was either not properly plead or suffered from a lack of evidentiary support. Appellant's claims of mental and emotional distress are not actionable because they were not pleaded as a claim of negligent infliction of emotional distress. Appellant's devaluation claim fails because appellant produced no facts regarding how much devaluation, if any, occurred. Appellant's claim that repair or replacement of the XTRA suspension system will result in out-of-pocket financial costs fails because, as appellant admits, all repairs have been performed free of charge by the dealer.

Appellant has identified no actual damages resulting from his ownership of an XTRA-equipped Polaris snowmobile. Absent actual damages, appellant cannot continue to prosecute his claims, and summary judgment was proper. See Lubbers, 539 N.W.2d at 401 (summary judgment appropriate when "record reflects a complete lack of proof on an essential element of the plaintiff's claim").


District courts have discretion in certification of a plaintiff class. Streich v. American Family Mut. Ins. Co., 399 N.W.2d 210, 213 (Minn. App. 1987), review denied (Minn. Mar. 25, 1987). One member of a class may sue as a representative party on behalf of the class only if there are questions of law or fact common to all class members and the representative party's claims are typical of the claims of the class. Minn. R. Civ. P. 23.01.

Appellant's failure to prove actual damages of his own defeats the commonality and typicality requirements of rule 23.01. A potential class representative who has not been damaged does not share a common legal grievance with proposed class members who allegedly have actual damages. See Ario v. Metropolitan Airports Comm'n, 367 N.W.2d 509, 513 (Minn. 1985) (commonality requires "common legal grievances" among class members). Further, without actual damages, appellant cannot credibly represent that his claims typify the claims of the class as a whole. See id. (typicality requires that class members have compatible interests). Lack of actual damages is fatal to both commonality and typicality.

The district court did not abuse its discretion by denying appellant's motion for class certification.


Appellant argues that the district court abused its discretion by denying his motion for an injunction ordering respondent to inform Polaris owners of problems with the XTRA suspension. We review the court's denial of injunctive relief under a "clear abuse of discretion" standard. Dahlberg Bros., Inc. v. Ford Motor Co., 272 Minn. 264, 274, 137 N.W.2d 314, 321 (1965). We consider the harm suffered if injunctive relief is denied and the likelihood that the moving party will prevail on the merits of its claim if such relief is granted. Id. at 274-75, 137 N.W.2d at 321-22.

Appellant argues that the alleged defects in the XTRA suspension system continue to pose an unreasonable risk to Polaris owners. But respondent has already acted to resolve problems associated with the problem by developing the "durability kit" and installing it at no cost to customers. Respondent notified its customers of the availability of the durability kit through mailings to individual customers and service bulletins issued to Polaris dealers nationwide. An injunction ordering respondent to inform its customers of problems with the XTRA suspension system would require actions that needlessly duplicate efforts respondent has initiated on its own.

We note that injunctive relief is particularly unnecessary where, as here, appellant has not shown the existence of actual damages. On this record, it appears respondent promptly attempted to remedy this design problem in a new product. That defect--now fixed--cannot be a basis for a legal action against the manufacturer by a plaintiff who simply seeks to act as a private attorney general or Consumer Products Safety Commission. The district court did not abuse its discretion by denying appellant's motion for injunctive relief.


Appellant argues that the district court erred by denying his motion to amend his complaint to include claims for punitive damages. But punitive damages cannot be recovered in a strict products-liability action where the plaintiff alleges only property damage. Eisert v. Greenberg Roofing & Sheet Metal Co., 314 N.W.2d 226, 228 (Minn. 1982); see also Independent Sch. Dist. No. 622 v. Keene Corp., 511 N.W.2d 728, 732 (Minn. 1994) (extending Eisert rule to all products-liability cases, regardless of whether case was based on strict liability).

Appellant argues that punitive damages are allowed on his consumer fraud claims. He cites Molenaar v. United Cattle Co., 553 N.W.2d 424 (Minn. App. 1996). But in Molenaar we reaffirmed Keene's holding that, "[a]bsent personal injury, a party injured by a product may not recover punitive damages." Id. at 428 (quoting Keene, 511 N.W.2d at 728). Here, appellant alleges only general emotional distress and unspecified financial loss. These are inadequate to allow recovery of punitive damages. Appellant's motion was properly denied.


"Absent a clear abuse of discretion, a trial court's decision regarding discovery will not be disturbed." Erickson v. MacArthur, 414 N.W.2d 406, 407 (Minn. 1987). Appellant argues that the district court abused its discretion by denying his motion for leave to contact third-party witnesses, specifically owners of XTRA-equipped snowmobiles who had contacted respondent regarding suspension defects.

But during the discovery process appellant had ample opportunity to review all of respondent's complaint records and records of warranty claims that had been submitted to respondent. Because this information was available during discovery, there is no reason for appellant to now contact third-party witnesses. See Minn. R. Civ. P. 26.02 (a) (court may limit discovery when it is unreasonably cumulative or duplicative, or when party seeking discovery has had ample opportunity to obtain the information sought). The district court did not abuse its discretion by denying appellant's motion.


SHORT, Judge (concurring specially).

I concur in the result only because: (1) Wilson's fraud claims are based on statements of mere opinion or puffery; (2) the economic loss doctrine bars tort claims in product-liability actions; and (3) where Wilson refused to permit Polaris to perform the "fix," there is no jury issue as to whether the limited warranty failed of its essential purpose. Under these circumstances, Wilson's claims cannot withstand summary judgment and we need not reach the issue of class certification.