Brenna Carlson, a minor, by and through her parents and natural guardians, Kevin Carlson and Leanella Carlson, Appellants, vs. Jakson Daniel Hess, Defendant, Shane Hager, et al., Respondents.

Brenna Carlson, a minor, by and through her parents and natural guardians, Kevin Carlson and Leanella Carlson, Appellants, vs. Jakson Daniel Hess, Defendant, Shane Hager, et al., Respondents. A05-503, Court of Appeals Unpublished, December 13, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-503

 

Brenna Carlson, a minor, by and through her parents and natural guardians,

Kevin Carlson and Leanella Carlson,

   Appellants,

 

vs.

 

Jakson Daniel Hess, Defendant,

Shane Hager, et al.,

      Respondents.

Filed December 13, 2005

Affirmed

Randall, Judge

 

 

Crow Wing County District Court

File No. CX-02-3142

 

           

Patrick M. Krueger, Borden, Steinbauer, Krueger & Knudson, P.A., 302 South Sixth Street, P.O. Box 411, Brainerd, MN 56401 (for appellants)

 

James Stephen McAlpine, Dyan J. Ebert, Quinlivan & Hughes, P.A., P.O. Box 1008, St. Cloud, MN 56302 (for respondents)

 

Considered and decided by Willis, Presiding Judge, Randall, Judge, and Huspeni, Judge.*

 

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge               

Appellant was injured while she was driving a car belonging to another person (not in the car) and had an accident when a passenger grabbed the wheel.  She sued the absentee owner, Rick Lindquist, and his stepson, Shane Hager, for negligent entrustment and sued the passenger for negligence.  The district court granted summary judgment to the absentee owner and his stepson, holding that the passenger's act of grabbing the wheel constituted a superseding cause.  Appellant argues that this was error because the claim of negligent entrustment raised a jury question that had to be decided first.  We affirm.

FACTS

            After attending a high school football game, 16-year-old Shane Hager, the car owner's stepson, and 15-year-old Jakson Hess[1], the car passenger who later grabbed the wheel, and 15-year-old Sam Rardin (a nonparty) picked up two girls, Kaitlyn Jurek and Brenna Carlson, the appellant.  After picking up appellant and Jurek, the group of high school students returned to the football game as it ended.  Soon after, they decided to attend a party.  Shane Hager drove the group to the party and then parked his stepfather's car in the middle of the cul-de-sac like driveway.  The group got out of the car and Hager locked it.    

                Shortly after arriving, appellant claimed she no longer wanted to be at the party, indicated she was cold, and asked Hager if she could sit in his car to warm up.  Hager gave her the keys.  Appellant, Hess, and Jurek got into the car.  Jurek sat in the front passenger seat on Hess's lap when appellant decided to drive away. 

            After sitting in the car for approximately five minutes, appellant suggested they "should just leave" because she was bored and cold.  Appellant testified her intentions were "just to take the car and drive around for a little bit."  Appellant started the car, which alerted Hager, who went over to the car, banged on the window, and motioned for appellant to shut the car off.  Hager tried to open the driver's side car door but it was locked.  Appellant ignored Hager's command and began backing out of the driveway.  She then stopped and waited for Hager to approach the car, indicating with her fingers that she wanted to drive a little bit.  Hager shook his head "no."  At this point, appellant ignored Hager's signals, pulled out of the driveway and drove off.   

            As appellant drove respondent's car, looking for somewhere to get something to eat, Jurek noticed a dirt road and suggested they drive down it.  At this point, Jurek was sitting on Hess's lap.  Appellant drove the car on the dirt road for approximately 5-10 minutes and then turned around to head back to the party.  Appellant testified her speed on the dirt road was around 40-45 miles per hour.  Hess testified she was traveling between 50 -55 miles per hour.  Appellant drove on the right side of the dirt road, but not as far right as if there was a centerline.  Hess testified that the car was going from the right side of the road towards the middle, and this alarmed him.  He was not sure if this was appellant's normal driving or if she had lost control.  Appellant testified that nothing about her own driving conduct concerned her, except the speed, but she claimed that no one told her to slow down.  At some point, Hess grabbed and pulled on the steering wheel with his hand at about the three or four o'clock position.  As a result, the car veered to the right.  In response, appellant turned the wheel to the left, and this "back and forth" motion caused appellant to lose control of the car.  The car spun around, flipped and landed in a ditch.  Appellant was thrown from the car.  The car landed on top of her and she suffered severe burns and other injuries to several areas of her body.  Hess and Jurek sustained minor injuries.  All parties agreed that there had been no drinking prior to the accident and alcohol was not involved.    

            Appellant sued Hess for negligence for his act of grabbing the wheel and later amended her complaint to add Shane Hager and his stepfather, Rick Lindquist, as defendants on the theory that they had negligently entrusted the car to her, a minor.  Respondents Lindquist and Shane Hager moved for summary judgment on four grounds:  (1) appellant could not prove the essential elements of her negligent entrustment claim against respondents; (2) the actions of defendant Hess, a passenger, in grabbing the steering wheel while appellant was driving constituted an intervening, superseding cause; (3) no reasonable jury could conclude that respondents' negligence was greater than appellant's negligence; and (4) because Hager used the car with Lindquist's permission, and because
neither Hager nor Lindquist gave Carlson permission to use the car, Lindquist, as the car's owner, is not liable as a matter of law to Carlson.   

            The district court granted respondents' motion for summary judgment.  The district court concluded that the actions of Hess immediately before the accident constituted a superseding cause as a matter of law.  The district court dismissed the matter on this argument alone and did not discuss respondents' other arguments.  This appeal followed.  

D E C I S I O N

            Summary judgment may be granted if the pleadings, depositions, interrogatory answers, admissions, and affidavits reveal that there is no genuine issue of material fact and that a party is entitled to judgment as a matter of law.  Minn. R. Civ. P. 56.03.  In an appeal from a grant of summary judgment, appellate courts determine if there are any genuine issues of material fact and if the lower court erred in its application of the law.  N. States Power Co. v. Minn. Metro. Council, 684 N.W.2d 485, 491 (Minn. 2004).  This court must "view the evidence in the light most favorable to the party against whom summary judgment was granted."  Westrom v. Minn. Dep't of Labor & Indus., 686 N.W.2d 27, 32 (Minn. 2004).  "The party opposing summary judgment may not establish genuine issues of material fact by relying upon unverified and conclusory allegations, or postulated evidence that might be developed at trial, or metaphysical doubt about the facts."  Dyrdal v. Golden Nuggets, Inc., 689 N.W.2d 779, 783 (Minn. 2004). 

            For an intervening act to be a superseding cause, the following elements must be present:

(1)  its harmful effects must have occurred after the original negligence; (2) it must not have been brought about by the original negligence; (3) it must actively work to bring about a result which would not otherwise have followed from the original negligence; and (4)it must not have been reasonably foreseeable by the original wrongdoer.

 

Rieger v. Zackoski, 321 N.W.2d 16, 21 (Minn. 1982). 

            There are additional factors to consider when making a determination whether an act is an intervening, superseding cause.  A court should consider whether:

(1) [an act's] intervention brings about harm different in kind from that which would otherwise have resulted from the actor's negligence; (2) [an act's] operation or the consequences thereof appear after the event to be extraordinary rather than normal in view of the circumstances existing at the time of its operation; (3) [an act's] intervening force is operating independently of any situation created by the actor's negligence, or, on the other hand, is an act done as a normal response to such a situation; (4) the operation of the [act] is due to a third person's act or to his failure to act; (5) the [act] is due to an [action] of a third person which is wrongful towards the other and as such[,] subjects the third person to liability to him; and (6) the degree of culpability of a wrongful act of a third person which sets the act in motion. 

 

Robinson v. Butler, 33 N.W.2d 821, 823 (Minn. 1948). 

            The district court granted respondents' motion for summary judgment, finding Hess's grabbing of the wheel an intervening, superseding cause, relieving respondents of liability.  In reaching its decision, the district court relied on Robinson, where the Minnesota Supreme Court concluded the act of a passenger grabbing the steering wheel to be an intervening, superseding cause, relieving the driver from liability.  Id. at 497, 33 N.W.2d at 824.

            In Robinson, when the plaintiff was driving, as one defendant attempted to pass plaintiff, a cattle truck approached from the opposite direction, in the same lane as defendant.  Id. at 492, 33 N.W.2d at 822.  Due to the size of the truck and lane, it became apparent that either the defendant or cattle truck had to move.  Id.  Realizing this, in an attempt to save himself, plaintiff turned to the right in order to drive off the highway onto the shoulder of the road.  Id.  However, the passenger in plaintiff's vehicle grabbed the steering wheel and turned it left, causing the vehicle to travel across the highway, into a ditch, and into a telephone guy wire.  Id.  The defendant argued that the passenger's act of grabbing and turning the wheel was an intervening, superseding cause, relieving him of liability.  Id. at 493, 33 N.W.2d at 822.  The plaintiff disagreed, arguing that defendant's original negligence set in motion the series of events that led to his injuries.  Id. 

            In reaching its holding in Robinson, the Minnesota Supreme Court noted that prior to the passenger grabbing the wheel, plaintiff had full control of the car.  Id. at 497, 33 N.W.2d at 824.  Based upon this fact, the court reasoned the accident would not have otherwise occurred.  Id.  The court determined the act of the passenger unforeseeable and not a normal response based upon the situation.  Id.  The act was "so extraordinary that it must be held to constitute an efficient intervening cause."  Id.

            Here, the district court concluded that Robinson required it to hold, as a matter of law, that Hess's act was a superseding cause.  We agree.  Appellant's injuries were brought about by Hess's unforeseeable act.  Because the district court was correct, there is no need to analyze any theory of "negligent entrustment."

            Appellant argues Hess's act does not constitute an intervening, superseding cause.  Appellant claims the circumstances created a plausible justification for Hess to assist her while driving.  See West Bend Mut. Ins. Co., v. Milwaukee Mut. Ins. Co., 384 N.W.2d 877, 880 (Minn. 1986) (stating that, although a vehicle ordinarily has only one operator, circumstances may create a "plausible justification" for a passenger to assist the driver in the operation of the vehicle). 

            But, even viewing the evidence in the light most favorable to appellant, Hess's act was an intervening, superseding cause.  Hess's act was extraordinary and completely unforeseeable.  Appellant presents no evidence that indicates otherwise.  "[S]ummary judgment is proper when the nonmoving party fails to provide the court with specific indications that there is a genuine issue of fact."   Thiele v. Stich, 425 N.W.2d 580, 583 (Minn. 1988).    

In support of her position, appellant argues that because she took no conscious or overt action to move the car one way or another, before Hess grabbed the steering wheel, Hess was "not interfering with her, but assisting her driving."  There is no evidence supporting appellant's argument that Hess's actions looked more like "assisting" than "interfering."  Hess's deposition testimony shows his observation that appellant was driving from the right side of the road toward the middle, and in the deposition he then said he could not determine whether appellant was losing control or driving normal.  Appellant stated that she thought Hess grabbed the wheel to try to scare her.  Thus, the record shows that, like the driver in Robinson, appellant had control of the vehicle up until Hess's spontaneous act.  The district court properly concluded that Hess was not "assisting" appellant, but interfered with her driving to the point that it constituted a superseding, intervening cause.

Appellant also speculates that Hager should have done "even more" than he did to prevent her driving away, as she claims it should have been foreseeable to Hager that she would have trouble operating the car because she was too young to drive, and that somehow it should have been foreseeable to Hager that Hess would attempt to assist her in driving the car.  With the district court, we conclude the theory of negligent entrustment was a stretch.

"Negligence must be predicated upon what one should have anticipated and not merely on what happened."  Schumacher v. Heig, 454 N.W.2d 446, 449 (Minn. App. 1990) (quotation omitted).

Appellant also argues that respondent Hager negligently entrusted the car not only to her, but also to Hess.  There is nothing in the record that even hints respondent Hager entrusted his car to Hess, a passenger. 

Next, we examine the claim of negligent entrustment by respondent Rick Lindquist and Shane Hager to appellant Brenna Carlson.  Hager's actions in resisting appellant's attempts to drive the car do not support negligent entrustment.  Further, even examining in the light most favorable to appellant, Hess's superseding and intervening act makes the issue of negligent entrustment immaterial.  Put another way, if there was no negligent entrustment, respondents Lindquist and Hager are not liable to appellant.  If there was negligent entrustment by Lindquist/Hager to appellant, Hess's superseding and intervening act means respondents Lindquist and Hager have no liability to appellant.   

The district court viewed the evidence in the light most favorable to appellant and still found that Hess's intervening and superseding act, even if there was negligent entrustment, made the issue of negligent entrustment immaterial.  We agree. 

Appellant and respondents argued three additional issues: whether respondent Hagar negligently entrusted the use of respondent Lindquist's car to appellant; whether comparative negligence presents an issue of fact for the jury; and if respondent Hagar is not liable to appellant, whether can respondent Lindquist may be held liable to appellant.

After finding, as a matter of law, Hess's act to be an intervening and superseding cause, the district court did not independently consider additional issues.  Because we affirm the district court's conclusion of an intervening, superseding cause, we have no need to examine other issues raised on appeal. 

            Affirmed.

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

[1]   Jakson Hess and his insurance company settled with appellant via a Pierringer release, and that claim, which has not been challenged, is not in issue on appeal.