Derby Construction, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0694

Derby Construction,
Appellant,

vs.

Jade Lutzi Painting, LLC,
Respondent,

Expert Insulation, Inc.,
Respondent.

Filed October 30, 2017
Affirmed
Connolly, Judge

Olmsted County District Court
File No. 55-CV-16-3831

Melanie J. Leth, Weber, Leth & Woessner, PLC, Dodge Center, Minnesota (for appellant)

Francis M. Doherty, Hale, Skemp, H anson, Skemp & Sleik, LaCro sse, Wisconsin (for
respondent Jade Lutzi Painting)

Steven E. Tomsche, Tomsche, Sonnesyn & Tomsche, P .A., Minneapolis, Minnesota (for
respondent Expert Insulation, Inc.)

Considered and decided by Connolly, Presiding Judge; Ross, Judge; and
Rodenberg, Judge.
2
U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
In this negligence action by appellant -contractor against resp ondent-painting-
subcontractor, appellant argues that the district court erred by granting summary judgment
to respondent because ex pert testim ony was not necessary to establish the elements of
negligence and abused its discretion by refusing to grant appellant a continuance to hire an
expert. Because we see no error of law and no abuse of discretion, we affirm.
FACTS
In 2014, appellant Derby Construction, LLC, hired respondent Jade Lutzi Painting,
LLC, as a subcontractor for work and services related to painting a home that appellant
was constructing. Expert Insulation is also listed as a respondent, but takes no part in this
appeal. On Janu ary 2, 2015, respondent’s employee(s) applied lacquer to some of the
home’s windows and, in accordance with respondent’s standard practice, left those
windows slightly open to allow the lacquer to dry. On January 5, 2015, appellant learned
that an interior pipe in the upper -level bathroom had burst, causing water damage to the
home. The district court found that, during the weekend the window was left open, the
outside “temperature ranged from the teens to low twenties degrees Fahrenheit.” The home
was then being heated by a furnace, which appellant’s owner, David Derby, testified would
probably have been set between 62 and 75 degrees Fahrenheit.
Appellant brought negligence claims against respondent and another subcontractor.
In its complaint, appellant claimed that the pipe froze and broke either because respondent
“negligently left the windows of the home open” or because the other subcontractor
3
“negligently installed insulation in the home .” Derby testified in his deposition that:
(1) appellant hired respondent on projects both bef ore and after the home at issue, (2)
appellant knew that respondent’s standard practice for applying lacquer to windows was to
leave those windows slightly open so the lacquer could dr y, (3) appellant believed the
thermostat for the home’s heating system would have been set between 62 and 75 degrees
Fahrenheit, (4) appellant was not aware of a time when this process had caused similar
harm, (5) a better method for applying lacquer to windows during cold months exists, (6)
appellant believed the other subcontractor’s insulation failed, and (7) appellant had no first-
hand knowledge about what caused the pipe to burst.
Respondent filed a motion for summary judgment , arguing that appellant failed to
substantiate its negligence claim by establishing that respondent’s actions breached its duty
of care and caused appellant’s injuries. The district court granted summary judgment for
both respondent and the other subcontractor . In its order, the district court held that
appellant failed to establish sufficient evidence of breach of duty. The district court further
held that expert -opinion testimony was necessary to establish caus ation of the alleged
negligence and appellant failed to designate any experts on this issue. Under the amended
scheduling order, the deadline for appellant to disclose any expert witnesses had passed.
Appellant challenges only the district court’s dismissal of its negligence claim
against respondent, asserting that e xpert-opinion testimony is not required. Appellant
alternatively argues that, if such testimony is required, the district court abused its
discretion by denying appellant’s motion for a continuance to obtain such an expert.
4
D E C I S I O N
I.
“We review a district court’s summary judgment decision de novo. In doing so, we
determine whether the district court properly applied the law and whether there are genuine
issues of material fact that preclude summary judgment.” Riverview Muir Doran, LLC v.
JADT Dev. Grp., LLC, 790 N.W.2d 167, 170 (Minn. 2010) (citation and quotation omitted).
Evidence must be viewed in the light most favorable to the party challenging the summary
judgment order. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). But , “when the
nonmoving party bears the burden of proof on an element essential to the nonmoving
party’s case, the nonmoving party must make a showing sufficient to establish that essential
element.” DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).
A defendant in a negligence action is entitled to summary judgment if “the record
reflects a complete lack of proof on any of the four essential elements of the claim: (1) the
existence of a duty of care, (2) breach of that duty, (3) an injury, and (4) the breach of the
duty being the proximate cause of the injury.” Gradjelick v. Hance, 646 N.W.2d 225, 230
(Minn. 2002). Speculation without some concrete evidence will not avoid summary
judgment. Useldinger & Sons, Inc. v. Hangsleben, 505 N.W.2d 323, 328 (M inn. 1993).
An award of summary judgment will be affirmed if there are no genuine issues of material
fact and if the decision can be sustained on any ground. Winkler v. Magnuson, 539 N.W.2d
821, 828 (Minn. App. 1995), review denied (Minn. Feb. 13, 1996).
“[W]hether expert testimony is required to establish a prima facie case is a question
of law that [appellate courts] review de novo.” Guzick v. Kimball, 869 N.W.2d 42, 46-47
5
(Minn. 2015). “The test of whether expert testimony is required is whether th e matter to
be dealt with is so esoteric that jurors of common knowledge and experience cannot form
a valid judgment as to whether the conduct of the parties was reasonable.” Radel v. Bloom
Lake Farms, 553 N.W.2d 109, 111 (Minn. App. 1996) (quotation omitted), review denied
(Minn. Oct. 29, 1996). Expert testimony based on adequate factual foundation is required
to prove causation if the issue involves matters outside of ordinary lay knowledge. Gross
v. Victoria Station Farms, Inc., 578 N.W.2d 757, 762 (Minn. 1998).
Appellant argues that it presented sufficient evidence of breach of duty and
causation because it is within a juror’s common knowledge that opening windows in winter
could cause a pipe to freeze . Although the district court granted summary judgment in
favor of respondent, respondent argues the district court erroneously considered hearsay in
reaching its decision . The admission of evidence is within the br oad discretion of the
district court, “and its ruling will not be disturbed unless it is based on an erroneous view
of the law or constitutes an abuse of discretion.” Kroning v. State Farm Auto. Ins. Co., 567
N.W.2d 42, 45 -46 (Minn. 1997). The district court considered several alleged
conversations between Derby and the homeowner, in which Derby claimed the homeowner
stated he went to the home on January 3, 2015, found six windows left open and closed all
but one of the windows; the window left open was located within a few feet of the pipe that
broke. The district court did not expressly rule on respondent’s hearsay objection, but it
included these statements in its order granting summary judgment for respondent.
“‘Hearsay’ is a statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Minn. R.
6
Evid. 801(c). Hearsay is inadmissible unless one of several exceptions applies. Minn. R.
Evid. 802. The statements the homeowner allegedly made to Derby were made outside
court and were offered by appellant to prove the truth of the matter s asserted; thus, they
were inadmissible hearsay. The person challenging the admission of evidence “bears the
burden of demonstrating that an improper evidentiary ruling caused pr ejudicial error.”
Citizens for a Safe Grant v. Lone Oak Sportsmen’s Club, Inc., 624 N.W.2d 796, 808 (Minn.
App. 2001). This district court error was not prejudicial to respondent, since respondent’s
motion for summary judgment was granted . Appellant relies on Derby testifying that the
homeowner allegedly told him that , when he visited the home on January 3, 2015, six
windows were more than slightly open and the house was freezing. Appellant cannot now
use this inadmissible evidence to challenge the district court’s order granting summary
judgment.
Thus, when considering only the admissible evidence in reviewing the district
court’s grant of summary judgment, we cannot say that it is within the province of a lay
person to know that leaving a window slightly open in a heated home on a cold day would
cause a pipe in an interior wall to freeze and burst. Expert testimony was therefore required
to establish causation. None was provided, so summary judgment was properly granted.
II.
Appellant alternatively argues that the district court abused its discretion in denying
it a continuance to obtain an expert witness. A party may move for summary judgment “at
any time after the expiration of 20 days from the service of the summons.” Minn. R. Civ.
P. 56.01. But “a party opposing a summary judgment motion may request that the district
7
court deny or continue the motion on the ground that the non -moving party should be
permitted to conduct additional discovery.” Molde v. CitiMortgage, Inc., 781 N.W.2d 36,
45 (Minn. App. 2010). “C ontinuances should be liberally granted under [r]ule 56.06,
especially when the party seeking more time is doing so because of insuffi cient time to
conduct discovery.” Bixler by Bixler v. J.C. Penney Co., Inc., 376 N.W.2d 209, 216 (Minn.
1985). But, “[a] district court’ s decision to deny a motion for a continuance to conduct
discovery is reviewed under an abuse -of-discretion standard. ” Lewis v. St. Cloud State
Univ., 693 N.W.2d 466, 473 (Minn. App. 2005), review denied (Minn. June 14, 2005).
Appellant appears to have requested a continuance in its motion opposing summary
judgment. However, appellant did not support this request with a proper affidavit. “A rule
56.06 affidavit must be specific about the evidence expected, the source of discovery
necessary to obtain the evidence, and the reasons for the failure to complete discovery to
date.” Alliance for Metro. Stability v. Metro. Council , 671 N.W.2d 905, 919 (Minn. App.
2003). A district court does not abuse its discretion when it denies a continuance motion
that is unsupported by affidavit or when the affidavit does not meet these requirements.
See Molde, 781 N.W.2d at 45-46.
Moreover, appellant asserted that a continuance wa s appropriate only because it
would not substantially prejudice respondent. Appellant did not make any specific
statements concerning the evidence expected to be obtained through additional discovery,
the source of discovery necessary to obtain that evidence, or the reasons it failed to
complete discovery to date. The district court did not abuse its discretion.
Affirmed.