Rebekah Melchert, f/k/a Rebekah Henninger, Appellant, vs. James Clark, defendant and third-party plaintiff, Respondent, Bradley Cline, third-party defendant, Respondent.

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-97-1862

Rebekah Melchert,

f/k/a Rebekah Henninger,

Appellant,

vs.

James Clark,

defendant and third-party plaintiff,

Respondent,

Bradley Cline,

third-party defendant,

Respondent.

Filed April 21, 1998

Affirmed and motion denied

Amundson, Judge

Blue Earth County District Court

File No. C1-96-1096

John T. Buchman, Christopher J. Hoffer, Soucie, Buchman Grover & Bolt, Ltd., 100 Anoka Office Center, 2150 Third Avenue North, Anoka, MN 55303 (for appellant)

Roderick D. Blanchard, Richard L. Pemberton, Jr., Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for respondent Clark)

Nancy Coon, 6131 Blue Circle Drive, Eden Prairie, MN 55344 (for respondent Cline)

Considered and decided by Amundson, Presiding Judge, Short, Judge, and Foley, Judge.[*]

U N P U B L I S H E D O P I N I O N

AMUNDSON, Judge

Appellant Rebekah Melchert challenges summary judgment in favor of respondent James Clark on Melchert's negligence claim. Because the record does not indicate Clark was operating the pontoon in a negligent manner, we affirm.

FACTS

Appellant Rebekah Melchert brought a negligence claim against respondent James Clark for injuries she suffered in a boating accident on July 9, 1995. On that day, Melchert was waterskiing on Crystal Lake when a boat operated by respondent Bradley Cline snagged her towline, causing severe injuries to Melchert's arm. Melchert claims Clark, operating his pontoon boat, caused Cline to swerve, snag the towline, and injure her. Melchert has entered into a covenant not to sue Cline.

Clark denied any involvement in the accident and moved for summary judgment. The district court dismissed Melchert's negligence claim against Clark and this appeal followed.

D E C I S I O N

On appeal from summary judgment, this court determines whether any genuine issues of material fact exist and whether the district court erred in its application of the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). In doing so, this court views the evidence in the light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). When the nonmoving party bears the ultimate burden of proof on an issue at trial, that party must do more than simply raise doubts as to the material facts when opposing a motion for summary judgment:

[T]he plain language of Rule 56 mandates the entry of summary judgment,

after adequate time for discovery and upon motion, 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. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.

Carlisle v. City of Minneapolis, 437 N.W.2d 712, 715 (Minn. App. 1989), quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552-53 (1986).

The necessary elements of negligence are: (1) a duty, (2) a breach of that duty, (3) the plaintiff suffered injury, and (4) the breach was the proximate cause of the plaintiff's injury. Johnson v. State, 553 N.W.2d 40, 49 (Minn. 1996). The "test of duty is the probability or foreseeability of injury to the plaintiff." Connolly v. Nicollet Hotel, 254 Minn. 373, 381, 95 N.W.2d 657, 664 (1959). The determination of whether defendant owes plaintiff a duty "depends on whether the [defendant] could reasonably have anticipated injury to [the plaintiff] as a result of his conduct." Jam v. Independent Sch. Dist. No. 709, 413 N.W.2d 165, 169 (Minn. App. 1987), review denied (Minn. Nov. 24, 1987). A defendant is not negligent if the harm that resulted from his conduct could not be reasonably anticipated or foreseen. Henkel v. Holm, 411 N.W.2d 1, 5 (Minn. App. 1987).

It is undisputed that Clark had a duty to avoid operating his pontoon in a careless manner disregarding of the rights or safety of others. See Minn. Stat. § 86B.311, subd. 1(1) (1996). Melchert asserts that Clark had an additional duty imposed by a sign posted along the lake, advising boaters when traveling around the lake to move in a counter-clockwise direction. The sign is one of convenience only and is not based on law in Blue Earth County. Sheriff Brad Peterson testified that boaters were free to ignore the sign if they wished and that some people do totally ignore it. Even though the sign contains good advice, Clark did not have an additional duty imposed because the sign established no specific duty, the breach of which would constitute negligence. Thus, Melchert's assertion fails.

Melchert's argument that Clark breached a duty of care is based mainly on the fact that Clark traveled in a straight line across the bay, rather than a counter-clockwise path around the lake. In doing so, he disregarded advice on the sign put up by the water-safety officer. This does not rise to the level of a breach of duty of care. Clark had a right to take his pontoon boat across the lake using any path he chose, providing he did not operate his pontoon boat in a negligent manner.

Viewing the evidence in the light most favorable to Melchert, there is nothing in the record that shows the pontoon was being operated in a negligent manner that day. The record shows that Clark operated his pontoon boat at a relatively slow speed. Clark was heading in a straight line across the bay at approximately 5 to 15 miles per hour. There is no evidence that Clark came close to any other boats in the bay. The evidence that mentions a specific distance has the pontoon approximately 200 feet away from Melchert at the time of the accident. Cline even testified that he did not change his course because of the pontoon, nor did he sense any danger until he noticed Melchert's towline floating in the water in front of his boat. Clark could not have reasonably anticipated injury to Melchert as a result of his conduct. Because we determine that Clark did not breach his duty of reasonable care, we need not address the remaining elements of negligence.

Melchert's motion to strike items from Clark's brief is denied because: (1) Clark's diagram was introduced for illustrative purposes only; (2) the witnesses'

statements were part of the record of appeal; and (3) Clark has maintained, from the very beginning, that he was not involved in the accident.

Affirmed and motion denied.

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