Shane Reasner, 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This opinion will be unpublished and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
A17-1989

Shane Reasner,
Appellant,

vs.

Ross Goldsmith, et al.,
Respondents.

Filed July 9, 2018
Reversed and remanded
Rodenberg, Judge

Fillmore County District Court
File No. 23-CV-17-102

Jeremy L. Lampman, Patterson Dahlberg, Rochester, Minnesota (for appellant)

Scott V. Kelly, Joseph A. Gangi, Farrish Johnson Law Office, Mankato, Minnesota (for
respondents)

Considered and decided by Rodenberg, Presiding Judge; Halbrooks, Judge; and
Florey, Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant Shane Reasner challenges the summary-judgment dismissal of his
statutory and common-law negligence claims for personal injuries appellant claims to have
sustained when his vehicle collided with respondents’ cow on a public highway. Appellant

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argues that genuine issues of material fact ex ist with respect to his claims. We agree.
Therefore, we reverse and remand.
FACTS
Appellant was driving a car with one passenger on a country road at night, when he
struck a black cow owned by respondent Gold smith Brothers. Appellant claims to have
sustained injuries. Respondent Ross Gold smith (Goldsmith) owns a house and acreage
near the road. Goldsmith and his brother own and operate Goldsmith Brothers, a farming
operation, which owns farm property and cattle. Together, respondents own a tract of land
that abuts the road on which appellant was dr iving when he struck respondents’ cow.
Respondents’ land is divided into two areas. One area (tilled land) is fenced, tilled, and
lies immediately adjacent to and north of the road. A second fenced area (pasture land) is
a pasture and lies farther north and not adjacent to the road. There is a gate (pasture gate)
between the tilled land and the pasture land. There is a second gate (road gate) that provides
access to the road from the tilled land. It is undisputed that, on the night of the accident, a
number of respondents’ cattle exited respondents’ property through the road gate and
wandered onto the road, where appellant’s car struck one of the animals.
Goldsmith stated in his depo sition testimony that he inspects the fences weekly. He
testified that the cattle had been held in the pastur e land for seven to ten days before the
night of this incident. Goldsmith testified that the cattle broke through the closed pasture
gate that night, got into the tilled land, and th en went through the ro ad gate and onto the
road. Goldsmith further testified that, on the day of the incident, he was on a tractor and

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working the tilled land. He did not see the cattle in the tilled la nd. When he last saw the
cattle, they were in the pasture.
Goldsmith further testified that, on the night of the accident, all of the 13 adult cattle
and their 12 calves left the pasture. Only th e cow hit by appellant’s car was injured. He
opined that the cattle must have been “spooked” that night, because they were upset when
he found them after the accident. Goldsmith testified that he checked the pasture gate the
day after the accident, and it had broken wires, which he repaired. Goldsmith did not take
a picture of the broken pasture gate, but an insurance adjuster took a photo of the pasture
gate after it had been repaired. Goldsmith re called that the cattle ha d only broken out of
the pasture fence once before, and had been held in that pasture “since probably 1958.” At
that time, the cattle escaped through the pasture fence and not through the pasture gate.
Appellant testified in his deposition that, while he was receiving emergency medical
treatment after the accident, Goldsmith spoke with him and said, “I’m sorry I left the gate
open. It’s my fault.” Appella nt recalled that the cattle were generally located in a field
near Goldsmith’s barn that had wooden feed bunks, because “every time” he drove by the
field, the cattle were there. Go ldsmith’s barn sits near the ro ad gate at the southern edge
of the tilled land. Appellant also testified that he had previously seen the cattle in an “upper
rear pasture.” He testified that he did not know where the cattle were during the time before
the accident.
Travis Dickinson, who lives near the Go ldsmith farm, was the passenger riding with
appellant when the accident happened. He st ated in his deposition that, on the morning
before the accident, he drove by the Goldsm ith farm and saw the cattle being fed by

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Goldsmith in the tilled land “approximately 40 to 50 yards” from the road gate. Dickinson
also stated that he was aware that the Goldsmith cattle had escaped three times during 2010
and 2011.
Appellant sued respondents, alleging that respondents were liable for permitting the
animals to run at large under Minn. Stat. § 346.16 (2016). He also asserted a common-law
negligence claim.
Respondents moved for summa ry judgment, arguing that the undisputed facts
establish that they neither permitted nor knowingly permitted the cattle to run at large under
Minn. Stat. § 346.16, and that they are en titled to summary judgment on appellant’s
common-law negligence claim, because the undi sputed facts showed that respondent did
not violate the standard of care. Respondents further argued that it was unforeseeable that
the cattle would escape.
The district court granted respondents’ motion for summary judgment. It found
that, before the accident, the cattle were in the pasture la nd, as Goldsmith’s deposition
testimony indicated. It concluded that, despite Dickinson’s claim to have seen the cattle in
the tilled land in the morning, “h e [did] not know where the catt le were located after that
time.” The district court relied on Goldsmith’s deposition to conclude that the cattle had
been confined to the pasture. The district court found that the cattle broke through the
pasture gate to enter the tilled land, from whic h they were able to walk through the open
road gate and onto the roadway.
In granting respondents’ motion for summary judgment, the district court concluded
that respondents were not liable under Minn. Stat. § 346.16 because they neither permitted

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nor knowingly permitted the cattle to run at large, because the cattle were enclosed in the
pasture land on the night of the accident. It found “that the undisputed facts show that
[respondents] did confine the cattle and th e pasture was completely enclosed by an
acceptable legal fence and gate.” It concluded that respondents’ having left the road gate
open “does not create a genuine issue of material fact as to whether [respondents] permitted
the cattle to run at large. . . . Although Mr. Dickinson claims to have seen the cattle in the
[tilled] land in the early morning hours the same day, . . . it is undisputed that the cattle had
broken through the pasture gate.” It furthe r concluded that “[n]either Mr. Dickinson nor
Mr. Reasner know where the cattle were prior to the incident or how they got out of their
pasture.” It noted that appellant’s complaint stated that the cattle were being kept in a
“fenced enclosure.” The district court also concluded that it was unforeseeable that the
cattle would escape from the pasture because respondents made weekly inspections and
had no reason to suspect that the cattle woul d escape. It therefore summarily dismissed
appellant’s complaint.
This appeal followed.
D E C I S I O N
Appellant argues that the district cour t should not have granted respondents’
summary-judgment motion because there exist genuine issues of material fact concerning
all of his claims, and that the district cour t reached the conclusion that there were no
genuine issues of material fact by impermi ssibly weighing the credibility of conflicting
deposition testimony.

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On appeal from summary judgment, we review whether there
are any genuine issues of material fact and whether the district
court erred in its application of the law. We view the evidence
in the light most favorable to the party against whom summary
judgment was granted. We review de novo whether a genuine
issue of material fact exists. We also review de novo whether
the district court erred in its application of the law.

STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76-77 (Minn. 2002) (citations
omitted). “[S]ummary judgment is inappropriate if the nonmoving party has the burden of
proof on an issue and presents sufficient evidence to permit reasonable persons to draw
different conclusions.” Schroeder v. St. Louis County, 708 N.W.2d 497, 507 (Minn. 2006).
“A material fact is one of such a nature as will affect the result or outcome of the case
depending on its resolution.” Zappa v. Fahey, 245 N.W.2d 258, 259 (Minn. 1976). “The
district court’s function on a motion for summary judgment is not to decide issues of fact,
but solely to determine whether genuine factua l issues exist. . . . [T]he court must not
weigh the evidence on a motion for summary judgment.” DLH, Inc. v. Russ, 566 N.W.2d
60, 70 (Minn. 1997).
Minn. Stat. § 346.16 prohibits livestock owners from permitting animals to run at
large, and provides for treble damages if a person “knowingly permit[s]” an animal to run
at large. The supreme court has interpreted “running at large” to mean “the permitting of
any animal mentioned in the statute to stro ll, wander, rove or ramble at will without
restraint or confinement.” Pigman v. Nott , 305 Minn. 512, 513, 233 N.W.2d 287, 288
(Minn. 1975) (quotation omitted). The suprem e court has interpreted “permit” in the
context of the statute to mean “to give an opportunity” and “to make possible.” Peterson
v. Pawelk, 263 N.W.2d 634, 637 (Minn. 1978). A violation of Minn. Stat. § 346.16 is

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negligence per se, and violation of the statute constitutes conclusive evidence of negligence
“unless the violation is excusable or justifiable under the circumstances of the case.” Id.
I. Genuine issues of fact exist co ncerning whether respondents’ cattle were
permitted to run at large.

Appellant argues that the district court erred in summarily dismissing his claims
because genuine issues of fact remain for tria l. Respondents agree that they own and are
responsible for controlling the cattle. The i ssue on appeal is whether there exists any
genuine issue of material fact regarding whether res pondents permitted or knowingly
permitted the cattle to exit their property.
In concluding that the cattle were enclosed in the pasture land, the district court
necessarily credited Goldsmith’s testimony concerning the location of the cattle before the
accident. Goldsmith stated duri ng his deposition that the cattle had been enclosed in the
pasture land for days leading up to the accident, and that they had broken through the fence
on the night of the accident to gain access to the road. But the record contains evidence to
the contrary. Dickinson testified in his deposition that, on that the morning of the accident,
he saw the cattle being fed by Goldsmith in the tilled land, near the road. He testified that
Goldsmith feeds the cattle by dispensing feed on the ground “40 to 50 yards” inside of the
road gate.1 Appellant also testified that he frequently saw the cattle near feed bunks by the
barn. The barn is located near the southern boundary of th e tilled land. By all accounts,
including Goldsmith’s testimony, the road gate was left open. Appellant stated in his

1 Dickinson drew a diagram to illustrate this point. The only gate included in this diagram
is the road gate. Dickinson testified that he saw the cattle being fed “just inside these gates”
that morning.

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deposition testimony that Goldsmith apologized to him, saying that it was his fault the
cattle escaped because he had le ft the road gate open. Gold smith also testified in his
deposition that the cattle (other than the cow hit by appellant ’s vehicle), had no injuries
despite breaking through the pasture gate.
In viewing the evidence in the light most favorable to the party against whom
summary judgment is sought, a district court considering a summary-judgment motion
must also make all reasonable inferences in favor of the non-moving party. Buskey v. Am.
Legion Post #270, 910 N.W.2d 9, 19-20 (Minn. 2018). In deciding a summary-judgment
motion, a district court must not weigh eviden ce; instead, it must decide whether genuine
factual issues exist. DLH, Inc, 566 N.W.2d 60 at 70. In crediting Goldsmith’s testimony
to conclude that, in the time leading up to the accident, the cattle were enclosed in the
pasture, and rejecting Dickinson’s testimony as being not probative concerning where the
cattle had been situated before the accide nt, the district court improperly weighed
conflicting evidence regarding the location of the cattle.
Viewing the record evidence in the light most favorable to appellant, and making
all reasonable inferences in the same light, the evidence here is sufficient to “permit
reasonable persons to draw different conclusions” about where the cattle were located on
the night of the accident and whethe r they were properly enclosed. See Schroeder, 708
N.W.2d at 507. A jury could accept as true Dickinson’s testimony about the location of
the cattle that morning, and c ould reject Goldsmith’s claim that the cattle were located in
the pasture land behind the closed pasture ga te. And Goldsmith makes no claim that he
moved the cattle from the tilled land into th e more-northerly pasture land on the day

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preceding the accident. A jury could reject Goldsmith’s testimony that the cattle were
spooked and broke through the pasture ga te, and credit appellant’s testimony that
Goldsmith admitted to the cattle escaping because he left the “gate” open. One reasonable
inference from the absence of injuries on the other cattle is that they did not break through
any fence or gate. A jury could, on this record, find that Goldsmith knew the animals were
in the tilled land with access to an open gate when they escaped by crediting Dickinson’s
testimony that the cattle were located in the tille d land, with access to the road gate that
Goldsmith testified had been left open for days leading up to the accident. Whether a jury
will make any or all of these findings is not the issue in this appeal; those questions of fact
remain for resolution at trial.
There is a genuine issue of material fact for trial concerning the location of the cattle
and whether they were enclosed in the pasture land or left in the tilled land with the road
gate open. And, there is a genuine factual issue concerning whether, by leaving the road
gate open, Goldsmith permitted or knowingly permitted the catt le to run at large under
Minn. Stat. § 346.16. These genuine issues of material fact preclude summary judgment
on appellant’s statutory claim.
II. There is a genuine issue of fact concerning whether respondent was negligent
in confining the cattle.

Appellant also argues that the district court erred in concluding that there is no
genuine issue of material fact concerning his common-law negligence claim.
The district court concluded that the ca ttle must have broken out of the fenced
pasture, an unforeseeable event, because Go ldsmith conducted regular maintenance and

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made weekly inspections of the fence. In so concluding, the district court again credited
Goldsmith’s deposition testimony that he regularly checked and maintained the fence, and
that the cattle had only broken out of the pa sture fence once over a period of many years.
As discussed above, Goldsmith testified that the cattle were spooked and broke through the
pasture gate.
There is contrary evidence in the record. Photographs of the pasture gate exist, but
none confirm that the pasture gate was broken . Dickinson testified about earlier escapes
by the cattle. Whether the pasture fence and gate were adequately maintained, and whether
the cattle were enclosed in the pasture land or in the tilled land with an open gate, remain
unresolved issues of fact.
Viewing evidence in the light most favorable to appellant, genuine issues of material
fact exist concerning Goldsmith’s claimed neg ligence. As discussed above, the evidence
suffices to “permit reasonable persons to draw different conclusions” about where the cattle
were located leading up to the accident, and whether they were properly enclosed or were
negligently left in the tilled land with access to an open gate. Schroeder, 708 N.W.2d at
507. Further, the evidence suffices to pe rmit reasonable persons to draw different
conclusions concerning whet her, if the cattle were located in the tilled land, it was
foreseeable that they would leave the property through the open road gate, or even whether
it was foreseeable that the ca ttle would break through the pa sture gate, if the fact-finder
chose to discredit Goldsmith’s depositi on testimony regarding the adequacy and
maintenance of the pasture gate. These are questions to be resolved at trial.

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There are genuine issues of material f act concerning appellant’s statutory and
common-law negligence claims. We ther efore reverse the summary adjudication
dismissing appellant’s complaint, and remand for further proceedings.
Reversed and remanded.