Carnea Roberson, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0020

Carnea Roberson,
Appellant,

vs.

STI International,
Respondent,

Bill’s Gun Shop,
Defendant.

Filed August 31, 2020
Affirmed
Hooten, Judge

Ramsey County District Court
File No. 62-CV-19-79

Nixon O. Ayeni, Law Office of Nixon Ayeni, Burnsville, MN (for appellant)

William L. Davidson, Brian A. Wood, João C.J.G. de Mederios, Lind, Jensen, Sullivan &
Peterson, Minneapolis, Minnesota (for respondent)

Considered and decided by Hooten , Presiding Judge; Jesson , Judge; and Florey ,
Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
Appellant challenges the summary judgment dismissal of his product-liability claim
against respondent, a firearm manufacturer, claiming that the district court erred when it

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determined that: (1) appellant had not timely submitted evidence to support his claims, (2)
the evidence submitted by appellant was not sufficient to prove the existence of a defect
that caused his injuries, and (3) the evidence submitted by appellant was not sufficient to
prove the manufacture of the pistol was an abnormally dangerous activity. We affirm.
FACTS
Appellant Carneia Roberson 1 challenges the summary judgment dismissal of his
product-liability claims against respondent STI International (STI), a firearm
manufacturer, related to injuries sustained while firing an STI -manufactured pistol (the
pistol). Roberson argues that the district court erred when it determined that: (1) Roberson
had not timely submitted evidence to support his claims, (2) the evidence submitted by
Roberson was not sufficient to prove the existence of a defect that caused his injuries, and
(3) the manufacture of the pistol was an un reasonably dangerous activity triggering strict
liability under the Restatement (Second) of Torts §§ 519, 520.
It is undisputed that the pistol, a 2011 HEX Tac, was manufactured at STI’s Texas
warehouse on May 24, 2016 , and was shipped the next day to a sporting goods store in
Robbinsdale, Minnesota. Almost two years later, Roberson purchased the pistol at Bill’s
Gun Shop, a different store located in Circle Pines, Minnesota. Neither party claims to
know the location of the pistol from the time when it was initially shipped to Robbinsdale

1 The case caption in the district court identifies the appellant as “Carnea Roberson” and
that name is used in the caption on appeal. However, appellant’s brief identifies the
appellant as “Carneia Roberson.” The caption on appeal must match the caption u sed in
the district court’s decision, Minn. R. Civ. App. P. 143.01, but we use “Carneia Roberson”
in the body of this opinion.

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to the time when it was sold at Bill’s Gun Shop. After purchasing the pistol, Roberson
fired it at a gun range located at Bill’s Gun Shop. Roberson alleges that he was seriously
injured when the pistol discharged and a hot shell casing imbedded in his right forearm.
Roberson asserts that after he suffered the injury, the pistol was sent to STI to be
repaired. According to Roberson, he paid to have the gun repaired and it was later returned
to him with a receipt. Roberson sued STI and Bill’s Gun Shop for strict products liability
and negligence. Over the course of discovery, Roberson’s counsel failed to comply with
discovery requests and STI filed motions to compel production.
On October 10, 2019, STI moved for summary judgment. In response, on October
30, 2019, Roberson filed a memorandum opposing summary judgment , in which he
referenced exhibits not yet submitted to the district court. On November 6, 2019, one day
after STI filed its reply and two days before the scheduled summary judgment hearing on
November 8, 2019, Roberson filed the exhibits referenced in his October 30 th
memorandum.
The district court did not accept Roberson’s untimely exhibits and granted summary
judgment in favor of STI. Roberson appeals.
D E C I S I O N
I. The district court did not abuse its discretion when it refused to accept
late-submitted exhibits into the summary judgment record.

Roberson argues that the district court abused its discretion when it decided not to
accept late-submitted exhibits when assessing whether or not to grant summary judgment.

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A party opposing a motion for summary judgment cannot rely on the pleadings’
bare allegations, but must specifically show there are genuine issues of fact. See McBee v.
Team Indus., Inc. , 925 N.W.2d 222, 230 (Minn. 2019) (stating that a genuine issue of
material fact may not be established by “unverified and conclusory allegations” (quotation
omitted)). Instead, a party responding to a dispositive motion, including for summary
judgment, must serve and file with the district court administrator a memorandum of law
and supplementary affidavits and exhibits “at least 9 days prior to the hearing.” Minn. R.
Gen. Prac. 115.03(b) (2018).2 “For a dispositive motion, the court, in its discretion, may
refuse to permit oral argument by the party not filing the required documents, may allow
reasonable attorney’s fees, or may take other appropriate action.” Minn. R. Gen. Prac.
115.06. Appropriate action includes refusing to consider the late -filed documents. See
Am. Warehousing & Distrib., Inc. v. Michael Ede Mgmt., Inc., 414 N.W.2d 554, 557 (Minn.
App. 1987) (upholding a district court’s refusal to consider an affidavit submitted four days
after a summary-judgment hearing), review dismissed (Minn. Jan. 20, 1988).
The enforcement of Minn. R. Gen. Prac. 115 is left to the discretion of the district
court. See Frontier Ins. Co. v. Frontline Processing Corp., 788 N.W.2d 917, 923 (Minn.
App. 2010) (recognizing district court’s discretion to impose sanctions for discovery
violations), review denied (Minn. Dec. 14, 2010); see also Minn. R. Gen. Prac. 115.06
advisory comm. cmt. ( stating that “permissive language is included to make it clear the
court retains the discretion to hear matters even if the rules have been ignored”).

2 Minnesota Rule of General Practice 115.03(b) was amended, effective January 1, 2020,
to require responsive memoranda to be filed at least 14 days before the hearing.

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Roberson submitted his memorandum opposing summary judgment on October 30,
2019, nine days prior to the November 8, 2019 hearing. However, Roberson did not file
the exhibits referenced in his memorandum until two days before the hearing. Thus, as
Minn. R. Gen. Prac. 115.03(b) requires a responding party to submit all supplemental
exhibits and affidavits nine days before the hearing, the district court did not abuse its
discretion when it refused to consider Roberson’s exhibits and affidavits two days before
the hearing.
The district court’s choice not to accept the exhibits might appear to be a harsh
outcome resulting from a relatively minor infraction. However, it appears less harsh when
viewed in the context of Roberson’s repeated failure to comply with discovery and his
counsel’s unapologetic tardiness to the summary judgment hearing. Additionally, the
district court reasonably believed that the “ consideration of [Roberson’s exhibits] would
be prejudicial to STI, who had, by that time, alre ady filed its reply to [Roberson’s]
opposition.” Roberson contends that the decision “boils down to whether the defendant
had time to review the exhibits and if the defendant has been supplied the evidence by other
means.” However, Roberson cites no law or rule mandating that a district court accept late
documents based on these factors.
Because of the prejudicia l nature of the late filing and the discretion given to the
district court to enforce Minn. R. Gen. Prac. 115.03(b), we conclude that the district court
did not abuse its discretion when it excluded Roberson’s late-filed exhibits.

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II. The district court did not err when it granted summary judgment to STI
on Roberson’s claim of defective design.

As we have concluded that the district court did not abuse its discretion when it
refused to consider Roberson’s exhibits, we now assess whether the record contained
sufficient evidence to show the existence of a defect without the exhibits and thus whether
or not the district court erred when it granted summary judgment to STI.
On appeal from summary judgment, we review de novo “whether there are any
genuine issues of material fact and 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).
“We view the evidence in the light most favorable to the party against whom summary
judgment was granted.” Id. However, evidence offered to support or defeat a summary
judgment motion must be admissible at trial. Hopkins v. Empire Fire & Marine Ins. Co. ,
474 N.W.2d 209, 212 (Minn. App. 1991). And arguments of counsel are not evidence.
State v. McCoy, 682 N.W.2d 153, 158 (Minn. 2004).
In order to prevail on a claim for n egligent and defective design, a plaintiff must
prove by a preponderance of the evidence that: (1) the product “was in a defective condition
unreasonably dangerous to the user,” (2) “the defect existed when it left the manufacturer’s
control,” and (3) “the defect was the proximate cause of the injury sustained.” Marcon v.
Kmart Corp., 573 N.W.2d 728, 731 (Minn. App. 1998) (quotation omitted), review denied
(Minn. Apr. 14, 1998).
The record contains no admissible evidence to support Roberson’s claims on any of
the elements necessary to present a prima facie case for defective design. Roberson did

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not submit any admissible evidence of the existence of a def ect, any expert testimony
regarding any alleged defect that existed when the gun left the manufacturer’s control, or
any admissible evidence relating to a connection between the alleged defect in the pistol
and the injury.
Roberson’s argument linking hi s injury to an alleged defect perhaps can be
understood as a res ipsa loquitur argument because he contends that no additional evidence
beyond the injury is needed to prove STI’s negligence. See Spannaus v. Otolaryngology
Clinic, 242 N.W.2d 594, 596 (Minn. 1976) (describing res ipsa loquitur and stating that an
injury “must be caused by an agency or instrumentality within the exclusive control of the
defendant”). But not only did Roberson fail to provide evidence that the pistol was within
the exclusive control of STI, see id., he also failed to raise res ipsa loquitur as a theory of
recovery in his complaint or argue such theory to the district court. Thus, we need not
consider the legal theory. See Hoyt Inv. Co. v. Bloomington Commerce & Trade Ctr.
Assocs., 418 N.W.2d 173, 175 (Minn. 1988) (“[A]n undecided question is not usually
amenable to appellate review.”).
As the record contains no admissible evidence supporting the elements of a design
defect claim but for the arguments of Roberson, which are not evidence, and no res ipsa
loquitur argument was made to the district court, we conclude that the summary judgment
record does not demonstrate a prima facie case for a design defect even when viewed in
the light most favorable to Roberson. See Nicollet Restoration, Inc. v. City of St. Paul, 533
N.W.2d 845, 847 (Minn. 1995) (stating that summary judgment is appropriate when the

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record reflects a complete lack of proof on one ess ential element of the plaintiff’s claim).
Therefore, the district court did not err when it granted summary judgment to STI.
III. The district court did not err when it granted summary judgment to STI
on Roberson’s claim of abnormally dangerous activity.

Finally, Roberson argues that because STI engaged in an abnormally dangerous
activity when it manufactured and distributed the pistol, the district court erred when it
granted summary judgment to STI.
“We review the grant of summary judgment de novo to determine ‘whether there
are genuine issues of material fact and whether the district court erred in its application of
the law.’” Montemayor v. Sebright Prods., Inc. , 898 N.W.2d 623, 628 (Minn. 2017)
(quoting Stringer v. Minn. Vikings Football Club, LLC , 705 N.W.2d 746, 754 (Minn.
2005)). When a party fails to submit any evidence of a genuine issue of material fact in a
responsive motion to a motion for summary judgment, summary judgment is appropriate.
DHL, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).
The Minnesota Supreme Court has not adopted the Restatement (Second) of Torts
§ 520’s definition of an ultra -hazardous activity. And yet, the Minnesota Supreme Court
has identified a list of factors taken from § 520 that a district court may consider to
determine whether or not an activity is abnormally dangerous so as to warrant the
application of strict liability. Mahowald v. Minn. Gas Co., 344 N.W.2d 856, 860–61 & n.2
(Minn. 1984). These identified factors are follows:
(a) [the] existence of a high degree of risk of some harm to the
person, land or chattels of others;
(b) [the] likelihood that the harm that results from it will be
great;

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(c) [the] inability to eliminate the risk by the exercise of
reasonable care;
(d) [the] extent to which the activity is not a matter of common
usage;
(e) [the] inappropriateness of the activity to the place where it
is carried on; and
(f) [the] extent to which its value to the community is
outweighed by its dangerous attributes.

Id. at 860–61 n.2.

The district court concluded that Roberson failed to submit any evidence that would
allow it to assess whether or not STI engaged in an abnormally dangerous activity. Thus,
summary judgment for STI was warranted. We agree. Because there is no evidence in the
record that raises a genuine issue of material fact, we hold that the district court did not err
when it concluded that Roberson’s lack of evidence prevented it from determining whether
or not STI’s manufacture and distribution of the pistol was an abnormally dangerous
activity so as to warrant the application of strict liability.
Affirmed.