David Waage, as trustee for the heirs and next-of-kin of Clarence Waage, deceased, et al., Appellants, vs. William David Sager, et al., Defendants, Randall Bruce Veurink, et al., Respondents.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-246

 

 

David Waage, as trustee for the heirs and next-

of-kin of Clarence Waage, deceased, et al.,

Appellants,

 

vs.

 

William David Sager, et al.,

Defendants,

 

Randall Bruce Veurink, et al.,

Respondents.

 

 

Filed September 30, 2003

Reversed and remanded

Robert H. Schumacher, Judge

 

Mille Lacs County District Court

File No. CX001032

 

 

Roger R. Roe, Jr., Caryn S. Glover, Best & Flanagan LLP, 225 South Sixth Street, Suite 4000, Minneapolis, MN 55402 (for appellants)

 

Frederick L. Grunke, Rajkowski Hansmeier Ltd., 11 Seventh Avenue North, Post Office Box 1433, St. Cloud, MN 56302 (for respondents)

 

 

            Considered and decided by Lansing, Presiding Judge; Toussaint, Chief Judge; and Schumacher, Judge.

 

U N P U B L I S H E D   O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellants David Waage, as trustee for the heirs and next of kin of Clarence Waage, and Irene Waage challenge the district court's grant of summary judgment to respondents Randall Bruce Veurink and Eggen's Direct Services, Inc., arguing the district court improperly disregarded testimonial evidence and the opinion of an expert witness.  We conclude there are genuine issues of material fact regarding Veurink's involvement in the accident.  We reverse and remand.

FACTS

On November 11, 1997, a dump truck driven by William Sager, a semi-tanker driven by Veurink, and a Plymouth Voyager minivan driven by Clarence Waage were traveling southbound on U.S. Highway 169.  Veurink's employer, Eggen's Direct, owned the semi-tanker.  Irene Waage was a passenger in the minivan.  The speed limit on Highway 169 varies between 55 and 65 miles per hour.

Sager entered Highway 169 and slowly began accelerating in the right hand lane.  Sager testified that because of the heavy load he was carrying, he had only reached approximately 30 miles per hour prior to the accident. 

Clarence Waage was driving between 50 and 60 miles per hour.  As Waage approached the dump truck, he decided to move to the left lane to pass.  Irene Waage looked over her shoulder and saw a big, black truck grill outside the window.  The Waage van suddenly moved back into the right lane without passing the dump truck.  At that moment, Irene Waage felt a "strong force" push the van, heard a "terrible roar," and heard, as they were being pushed sideways, the "whoosh" of a passing vehicle.  The minivan spun out of control and collided with the dump truck.

Veurink was driving at about 50 miles per hour in the right lane prior to the accident.  Veurink passed the collision in the left lane and stopped shortly thereafter.  There were no vehicles between the Waage van and the Veurink tanker.

The Waages obtained the opinion of an accident reconstructionist, David E. Hamerski, Ph.D.  In Hamerski's technical report he concludes, based on the Waage van's tire marks, the van's path was not chosen by the driver but was the result an outside force.  In his affidavit to the court, Hamerski states it is his opinion the Veurink tanker's contact with the Waage van supplied this force.

In April 2002, the Waages moved for summary judgment against all defendants; Veurink and Eggen's Direct filed a cross-motion for summary judgment.  Approximately a month later, the district court issued its order denying the Waages' motions for summary judgment and granting the motion for summary judgment of Veurink and Eggen's Direct.  The court found that Hamerski's opinion was too speculative, which left the record devoid of a factual basis for the the Waages' claims against Veurink and Eggen's Direct.  The district court compared this lack of evidence to the substantial evidence that was "consistent with the contention that there was no impact."  After trial as to the remaining defendants and a jury verdict for appellants, the district court entered judgment in favor of Veurink and Eggen's Direct on their summary judgment motion. 

D E C I S I O N

            We review a district court's grant of summary judgment to determine whether there are any genuine issues of material fact and whether the district court erred in applying the law.  H.B. ex rel. Clark v. Whittemore, 552 N.W.2d 705, 707 (Minn. 1996).  We view the evidence in the light most favorable to the party against whom summary judgment was granted, and any doubts about the existence of a material fact are resolved in that party's favor.  Id.  Summary judgment is a "blunt instrument" and should be employed only where it is perfectly clear that no disputed issue of fact is involved, and that it is neither desirable nor necessary to inquire into facts which might clarify the application of the law.  Donnay v. Boulware, 275 Minn. 37, 45, 144 N.W.2d 711, 716 (1966).  Further, the district court is not authorized to make credibility determinations in deciding whether to grant summary judgment.  Powell v. Anderson, 660 N.W.2d 107 (Minn. 2003).

            The Waages argue that Irene Waage's deposition statements and Hamerski's opinion raise a genuine issue of material fact as to Veurink's involvement in the crash.  We agree.  There is sufficient testimonial evidence to raise a genuine issue of material fact.  Irene Waage's statements that she saw a big black grill, felt a force pushing the Waage van from behind, and heard the "whoosh" of a passing vehicle, in a summary judgment analysis must be accepted as true.  The factual inference from these statements is that a truck with a big black grill struck the Waage van.  The record demonstrates there were no other vehicles between the Waage van and Veurink's tanker, and therefore there is a reasonable possibility that Veurink's tanker contacted the Waage van, thus causing Clarence Waage to lose control and collide with the dump truck.

            The district court found Hamerski's accident reconstruction too speculative to consider.  Accident reconstruction evidence may be admitted when there is "sufficient factual data to assure a reasonably complete and accurate reconstruction of the accident without indulging in speculation."  Dunshee v. Douglas, 255 N.W.2d 42, 47 (Minn. 1977) (quotation omitted).  It is, however, still expert testimony and "error[s] in calculations or in the assumption of facts or data upon which the opinion was based goes to the weight of the testimony, not to its admissibility."  LeMieux v. Bishop, 296 Minn. 372, 382, 209 N.W.2d 379, 385 (1973).

Hamerski relied on the methodology frequently used by accident reconstructionist, namely tire marks left at the scene and positions and speed of the vehicles involved.  He then applied the laws of physics and engineering to these facts.  There is nothing in the record indicating that Hamerski's qualifications as an expert were challenged nor is there any evidence he lacked foundation for his conclusions.  Any imperfections in his conclusions, assumptions, or calculations are a matter of weight and credibility, neither of which is to be considered on a motion for summary judgment.

Reversed and remanded.