STATE OF MINNESOTA

IN SUPREME COURT

A20-0267

Court of Appeals Thissen, J.
Dissenting, Anderson, J., Gildea, C.J.
Virginia Staub, as trustee and
next-of-kin of Joyce Esther Weeks, decedent,

Appellant,

vs. Filed: September 22, 2021
Office of Appellate Courts
Myrtle Lake Resort, LLC, and

James Lown,

Respondents.

________________________

Jeremy Brantingham, Patrick McDonald, Brantingham Law Office , Minneapolis,
Minnesota; and

Andrew Irlbeck, Andrew Irlbeck Lawyer Chartered, Saint Paul, Minnesota, for appellant
Virginia Staub.

Jerome D. Feriancek, Paige V. Orcutt, Trial Group North, PLLP, Duluth, Minnesota, for
respondent Myrtle Lake Resort, LLC.

Michael J. Tomsche, Kelly P. Magnus, Tomsche, Sonnesyn & Toms che, P.A., Golden
Valley, Minnesota, for respondent James Lown.

James S. Ballentine, Matthew J. Barber, Schwebel Goetz & Sieben, P.A., Minneapolis,
Minnesota, for amicus curiae Minnesota Association for Justice.

Louise A. Behrendt, Emily L. Mugaas, Meagher & Geer, PLLP, Minneapolis, Minnesota,
for amicus curiae Minnesota Defense Lawyers Association.

________________________
1
S Y L L A B U S
The district court erred by granting respondents’ summary judgment motions on the
basis that no genuine issue of material fact as to proximate cause existed.
Reversed and remanded.
O P I N I O N
THISSEN, Justice.
This case arises from the death of Joyce We eks,1 who fell down a concrete stair,
which is attached to the main lodge building at Myrtle Lake Resort in Orr , Minnesota .
Appellant Virginia Sta ub, as Joyce’s trustee and next of kin, brought a wrongful death
claim against respondents Myrtle Lake Resor t, LLC and James Lown (collectively
respondents), asserting that the degraded and dangerous condition of the stair proximately
caused Joyce’s fall and death.
Myrtle Lake and Lown each moved for summary judgment. The district court
granted the motions based on lack of proximate cause because no witness saw how Joyce
began to fall. The district court reasoned that a jury would have to “engage in speculation”
to find that Myrtle Lake’s a nd Lown’s alleged negligence proximately caused Joyce’s
death. The court of appeals affirmed.
We hold that the district court erred by granting summary judgment because a
genuine issue of material fact exists as to the question of whether the condition of the stair
proximately caused Joyce to fall. Because this case comes to us follow ing a grant of

1 Because one of the witnesses in this case is Joyce’s husband, Sam Weeks, we refer
to Joyce and Sam by their first names to avoid confusion.
2
summary judgment, we apply our well-settled rule that all evidence in the record and all
reasonable inferences that a jury may draw from such evidence must be viewed in a light
most favorable to Staub , the nonmoving party. See Henson v. Uptown Drink, LLC , 922
N.W.2d 185, 189 –90 (Minn. 2019). We also reaffirm our well -established rule that a
plaintiff need not introduce direct eyewitness evidence of a fall to e stablish proximate
cause. See Majerus v. Guelsow, 113 N.W.2d 450, 455 (Minn. 1962).
Further, we apply our rule that a plaintiff may use circumstantial evidence to
establish that a particular condition was one substantial factor in causing an injury when a
jury may reasonably infer that the condition was such a substantial factor. See Osborne v.
Twin Town Bowl, Inc. , 749 N.W.2d 367, 372 (Minn. 2008); Smith v. Kahler Corp., 211
N.W.2d 146, 150 (Minn. 1973). Finally, we note that summary judgment is inappropriate
when a plaintiff’s proximate cause theory asserts that a condition is a substantial factor in
causing an injury under one of the following circumstances: (1) the plaintiff’s theory is
consistent with a lternative proximate cause theories or, (2) when the plaintiff’s theory is
inconsistent with such alternative theories, it preponderates over those alternative theories.
See Osborne, 749 N.W.2d at 380 n.8.
Accordingly, we reverse the court of appeals and remand to that court to address the
remaining issues on appeal.
FACTS
On July 10, 2016, Joyce Weeks fell down a concrete stair, which is attached to the
main lodge building at Myrtle Lake Resort. She sustained a spinal cord fracture and died
one week later. On June 26, 2018, Joyce’s daughter, Virginia Staub, as trustee and next of
3
kin for Joyce, filed a wrongful death lawsuit against Myrtle Lake and Lown. Lown is the
president and sole member of Myrtle Lake, which owns the resort property.
In her complaint, Staub alleged that Myrle Lake’s and Lown’s negligent failure to
maintain the stair in a safe condition proximately caused Joyce’s fall. She also alleged that
Joyce and her husband Sam Weeks had repeatedly complained about the stair, telling Lown
that it was unsafe and needed to be replaced. The stair consisted of a small landing
immediately outside of the lodge door and two sets of steps leading down from each side
of the landing: one longer s et of ten steps leading down toward the lake and a shorter set
of five steps facing the parking area. Each set of steps had a wooden railing alongside it.
Joyce fell down the longer set of steps . Witnesses observed her during the course of the
fall, but no one directly saw how she began to fall. Consequently, as to the question of
how Joyce fell, the record consists of circumstantial evidence, i ncluding deposition
testimony and accompanying affidavits from witnesses present at the time of the fall and
two expert reports.
Three witnesses testified as to the events surrounding Joyce’s fall: Sam Weeks
(Joyce’s husband), George Brown (a friend of Joy ce and Sam and frequent resort guest),
and David Wilcox (another resort guest).
Testimony of Sam Weeks
Sam testified that he and Joyce lived at the resort full time and served as caretakers
by performing maintenance work, cleaning the cabins, and running the lodge ’s bar and
restaurant. Shortly after taking over operations for the resort in 2014, and many times
thereafter, Sam told Lown that the stair was “dangerous[,]” “in terrible shape [,]” a nd
4
needed to be replaced. For example, the landing at the top of the stair was “rough, rocky[,]”
and uneven, and the steps themselves were “leaning, chipped, cracked, [and] weathered.”
Although the lodge had other means of ingress and egress, the stair was the primary
means by which Joyce and Sam accessed their living quarters in the lodge; alternative
routes—such as an inside stairway—generally were not available because of guest privacy
concerns. On most days, Joyce would wash guests’ laundry and line ns in the upstairs of
the lodge and take the laundry basket out to her car to drive to the cabins. She typically
used the stair to exit the lodge. Joyce had complained about and had issues using the stair
and would use the shorter set of steps facing the parking area, not the longer set of steps
down which she fell. Although she had a knee replacement 6 to 8 months before the fall,
she “was doing real well” and “had no problems.”
On the morning of July 10 , 2016, Sam was inside the lodge eating breakfast and
preparing to take his insulin. He “heard a holler” and looked out the window to see the
laundry basket Joyce had carried outside sitting on the landing. He opened the door and
saw Joyce laying at the bottom of the longer set of steps. He rushed down to her, found
her unresponsive, and started CPR. Sam did not see Joyce fall. He stated that because
Joyce would always use the shorter set of steps, he could not “understand how she went
down the other side.”
Testimony of George Brown
Brown testified that he was a frequent resort guest and a friend of Sam and Joyce
who, along with his wife Delaine, helped with maintenance and upkeep around the resort
when visiting. He testified that Joyce would normally park her car near the shorter set of
5
steps and set the laundry basket down on the landing so Delaine could pick it up, take it to
the car, and accompany Joyce to clean the cabins. Sometimes, however, Joyce would take
the basket direct ly to the car on her own. And although Sam testified that Joyce always
took the shorter set of steps, Brown stated that he had seen Joyce use the longer set of steps
“many times before that.”
On July 10, 2016, Brown and Delaine were having coffee in the lodge with Sam and
Joyce. Joyce got up to get her car keys and retrieve the laundry in preparation for cleaning
the cabins. Sam went to the living quarters to take his insulin while Joyce “went out.”
Brown got up to go outside, but first looked out the l akeside window to see how David
Wilcox—another guest—was doing fishing that morning. He then saw Wilcox “running
up the hill” from the lake. Brown went out the door by the stair and heard Wilcox say that
Joyce “fell off the steps.” He looked down and sa w Joyce “rolling off the steps” and
managed to stop her on the last step. Brown “did not see the start of her fall,” nor did he
see her at the top of the steps before she fell. He only saw Joyce after she was “already
halfway down” the steps. 2 Brown could not recall with certainty whether anything had
been placed on the stair, though he said the laundry basket may have been set on the “left-

2 Brown said that Sam came out of the lodge after Brown did, at most 1 minute after
Joyce’s fall.

6
hand side” of the landing. Brown said that he didn’t know whether Joyce had planned to
use the longer set of steps or whether she just fell off that side.3
Testimony of David Wilcox
Wilcox testified that he was a friend of Brown’s and had been staying at the resort
for a few days before Joyce’s fall. On the morning of July 10, 2016 , Wilcox was on the
main dock along the lake fishing by himself, facing away from the lodge. He heard Joyce
come out of the door of the lodge and “looked over” briefly to see her put the laundry
basket down near the middle of the landing. Wilcox then turned back to the lake and
continued fishing. About 30 to 60 seconds later, Wilcox heard a set of keys drop on
concrete but did not turn to look. Shortly thereafter, Wilcox heard Joyce make a startled
“whoo” noise. He turned around and saw her “hit the ground” or “roll” at the bottom of
the longer set of steps.4 He did not see Joyce begin to fall, and did not know how she lost
her balance, how she fell, whether she hung onto the railing along the landing or steps, or
whether she was using the longer set of steps intentionally before she fell. Wilcox started
up to where Joyce had fallen, but Brown came out of the lodge and got to Joyce first. Sam
got there about a minute later.

3 In his predeposition affidavit, Brown stated: “I don’t know what made Joyce use
those [longer set of steps] that day specifically, but I know she only used them when she
had to.”

4 Wilcox first stated that although he did not see Joyce “hit the ground,” he “did see
her roll.” But later he stated that Joyce hit the ground as he turned around.
7
Expert reports
Both Staub and Myrtle Lake had expert reports completed on the condition of the
stair. Great Northern Environmental Solutions completed a report for Staub. It found that
“the concrete steps were beyond practical repair” and could have been replaced with “all -
weather wood constructed stairs, complete with guard rail and hand rail for less than $800.”
Great Northern concluded that Myrtle Lake “was negligent in maintaining” the concrete
steps, which were degraded, cracked, inconsistently spaced, and unsafe to use.
Scalzo Architects completed a report for Myrtle Lake. Scalzo found that the stair
was “in serviceable condition and not in disrepair” and that the railing was “secure and
sturdy.” Although the stair showed “some deterioration after years of weather and use,”
the deterioration was “not significant enough to create a hazardous condition.” Scalzo
concluded that the “observed deterioration” did not create “an unsafe condition” as the stair
did “not crumble or break during use.” Both reports contained several photos documenting
the physical condition of the stair, including the landing and both sets of steps.
Following discovery, Myrtle Lake and Lown each moved for summary judgment.
They argued that St aub had failed to establish proximate cause sufficient to survive
summary judgment and could “only speculate as to the cause of the fall.” 5

5 Lown also argued that he was entitle d to summary judgment because he enjoyed
immunity under Minn. Stat. § 322C.0304, subd. 1 (2020); a statute that, with some
exceptions, shields members of a limited liability company from liabilities incurred by the
limited liability company. The district court agreed and granted summary judgment to
Lown on the additional ground that Staub failed to introduce evidence that Minn. Stat.
§ 322C.0304 did not apply to Lown. The court of appeals did not address that issue. Staub

8
The district court granted both motions. It found that the stair was in poor condition
and “cracked, chipped, le aning, and weathered.” The court also found that as a result of
falling down the longer set of steps, Joyce sustained injuries that caused her death. But the
court also found that “[n]o one observed what cause d [Joyce] to fall down the stairs. No
one sa w [Joyce ] take any steps down the stairs.” The court commented that ,
“[u]nfortunately, the only person that would know what caused [Joyce] to fall is the
decedent. No one saw how [Joyce] fell.” It then offered several competing theories that
could explain why Joyce fell, positing that “[s]he may have fallen because she had a dizzy
spell, or she may have tripped over the laundry basket, or may have been distracted by
something.” The court concluded that, “to find that defendant’s negligence led to [Joyce’s]
death, a jury would have to engage in speculation.” Ultimately, the court held that “[t]here
are no facts upon which a jury could determine that the negligence of Myrtle Lake Resort,
LLC, caused [Joyce] to fall down the stairs.”
The court of appeals affirmed. Staub v. Myrtle Lake Resort, LLC , No. A20-0267,
2020 WL 7330583, at *4 (Minn. App. Dec. 14, 2020). It held that the degraded condition
of the stair and repeated requests to repair it did not “establish a prima facie case for
proximate cause.” Id. at *3. Like the district court, the court of appeals stated: “No one
saw [Joyce] fall,” adding that “[o]ne can only speculate as to what caused [ Joyce] to fall,

v. Myrtle Lake Resort, LLC, No. A20-0267, 2020 WL 7330583, at *3 n.2 (Minn. App. Dec.
14, 2020). We decline to do so as well.
Myrtle Lake and Lown each raised a series of other alternative arguments at the
summary judgment stage in addition to their proximate cause defense. They raise similar
arguments before us on appeal. The district court did not reach these arguments, and we
decline to do so.
9
and mere speculation is not enough.” Id. It also offered various theories as to why Joyce
fell:
While we can speculate that the degraded condition of th e stair[], which is
obvious from the photographs, may have been the most likely reason for the
fall, there are many other ways this could have happened —she could have
been startled by an owl or a pesky mouse, she could have tripped over the
laundry basket, etc. Unfortunately, because she is no longer with us, we will
never know.

Id. at *3 n.1. We granted review.
ANALYSIS
Staub appeals from an order granting summary judgmen t, arguing that the district
court erred because she introduced circumstantial evidence sufficient to establish that
Myrtle Lake’s and Lown’s conduct “was a substantial factor” in Joyce’s fall and death.
Staub asserts that the most likely theory for Joyce’s fall is that she fell due to the degraded
condition of the negligently maintained stair, not alternative theories such as Joyce’s knee
giving out or that Joyce tripped over the laundry basket. Despite a lack of direct evidence,
Staub claims that “the c ircumstantial evidence regarding the condition of the stair[] is
enough to justify a jury finding” that the condition of the stair proximately caused Joyce’s
fall; therefore, summary judgment was inappropriate.
Because negligence cases are fact -intensive, the procedural posture of each case
matters a great deal. See Warren v. Dinter , 926 N.W.2d 370, 380 (Minn. 2019)
(emphasizing the summary judgment standard when resolving a duty of care issue in a
professional negligence case); Fenrich v. The Blake Scho ol, 920 N.W.2d 195, 206–07
(Minn. 2018) (highlighting the significance of procedural posture when deciding “a close
10
call” on an appeal from a grant of summary judgment). That this case comes to us
following a grant of summary judgment is central to our decision today. Indeed, a primary
difference between our decision and the dissent is our insistence that on a motion for
summary judgment, the facts and the reasonable inferences to be drawn from those facts
must be resolved in Staub’s favor. Although the dissent effectively illustrates that Myrtle
Lake and Lown ultimately may be able to convince a jury that the condition of the stair did
not cause Joyce to fall, that analysis is not our inquiry at this stage of the proceedings.
Summary judgment is appropriate only “when there is no genuine issue of material
fact and a party is entitled to judgment as a matter of law.” Senogles v. Carlson , 902
N.W.2d 38, 42 (Minn. 2017). We review a grant of summary judgment de novo, viewing
the evidence in the light mos t favorable to the nonmoving party and resolving all doubts
and factual inferences against the moving party . Henson v. Uptown Drink, LLC , 922
N.W.2d 185 189–90 (Minn. 2019). “In a negligence action, the defendant is entitled to
summary judgment when the record reflects a complete lack of proof on” proximate cause
and “[a] nonmoving party cannot defeat a summary judgment motion with unverifi ed and
conclusory allegations . . . .” Gradjelick v. Hance , 646 N.W.2d 225, 230 (Minn. 2002).
Summary judgment, however, is a “blunt instrument.” Osborne v. Twin Town Bowl, Inc.,
749 N.W.2d 367, 371 (Minn. 2008) (citation omitted) (internal quotation marks omitted).
It should not be granted when reasonable persons could draw different conclusion s from
the evidence presented. Id.
Here, we must decide whether, when viewing the record in a light most favorable
to Staub and resolving all factual doubts and inferences against Myrtle Lake and Lown, a
11
genuine issue of material fact exists as to whether the condition of the stair proximately
caused Joyce to fall. When answering that question, we filter our case law on proximate
cause and circumstantial evidence through the summary judgment standard.
A.
The district court granted summary judgment based on its conclusion that no
genuine issue of material fact existed as to whether the degraded and dangerous condition
of the stair resulting from Myrtle Lake’s and Lown’s negligent maintenance proximately
caused Joyce’s fall and death. “[F]or a party’s negligence to be the proximate cause of an
injury,” the injury must be a foreseeable result of the negligent act and the act must be a
substantial factor in bringing about the injury. 6 Lubbers v. Anderson , 539 N.W.2d 398,
401 (Minn. 1995); see George v. Est . of Baker, 724 N.W.2d 1, 10 (Minn. 2006) (stating
that a negligent act is a proximate “cause of harm if the act was a substantial factor in the
harm’s occurrence”). There may be more than one substantial f actor—in other words,
more than one proximate cause—that contributes to an injury. See Osborne, 749 N.W.2d
at 375; Nelson v. Holand, 139 N.W.2d 518, 521–22 (Minn. 1965).
“Generally, whether the defendant’s negligence proximately caused the plaintiff’s
injuries is a question of fact for the jury.” Canada ex rel. Landy v. McCarthy, 567 N.W.2d
496, 506 (Minn. 1997). Further, “[i]t is for the jury to draw the inferences [about proximate
cause] and not this court. ” Smith v. Kahler Corp., 211 N.W.2d 146, 150 (Minn. 1973).

6 The parties here do not dispute on appeal whether a fall and injury are a foreseeable
result of negligently maintained steps. The o nly question before us related to proximate
cause is whether the degraded condition of the stair was a substantial factor in bringing
about Joyce’s fall and injury.
12
“However, when reasonable minds could reach only one conclusion, the existence of
proximate cause is a question of law.” McCarthy, 567 N.W.2d at 506. A finding of
proximate cause “cannot be based upon mere speculation or conjecture .” E.H. Renner &
Sons, Inc. v. Primus, 203 N.W.2d 832, 834 (Minn. 1973).
A plaintiff is not required to provide eyewitness testimony or other direct evidence
of proximate cause. See Majerus v. Guelsow, 113 N.W.2d 450, 455 (Minn. 1962). Rather,
inferences drawn from circumstantial evidence can, on their own, support a finding of
proximate cause in negligence actions. See Gerster v. Special Adm’r for Wedin’s Est., 199
N.W.2d 633, 635 (Minn. 1972) (stating that circumstantial evidence can suffice to support
a jury verdict finding negligence); Kludzinski v. Great N. Ry. Co. , 153 N.W. 529, 529–31
(Minn. 1915) ( concluding that circumstantial evidence suggesti ng defendant railroad
company’s failure to “keep a proper lookout” proximately caused decedent to be crushed
by a railcar was sufficient despite lack of eyewitness evidence).
When relying solely on circumstantial evidence, a plaintiff may seek to establish
certain inferences to argue that a defendant’s negligent act proximately caused an injury.
See Cullen v. Pearson, 253 N.W. 117, 119 (Minn. 1934) (“Negligence . . . may be proved
by circumstantial evidence. The jury may draw all reasonable inferences from the facts
and circumstances shown. ”). “[C]ircumstantial evidence is sufficient if it furnishes a
reasonable basis for the jury to infer that some negligent act of the defendant was the cause
of the injury.” Kludzinski, 153 N.W. at 530. Indeed, the mere fact that the circumstantial
evidence “may justify other conflicting inferences” does not prevent the jury from drawing
an inference that the defendant’s negligence proximat ely caused the plaintiff’s injury.
13
Knuth v. Murphy, 54 N.W.2d 771, 775 (Minn. 1952); see Hagsten v. Simberg, 44 N.W.2d
611, 613 (Minn. 1950) (explaining that a plaintiff’s theory of proximate cause need not “be
proved beyond a reasonable doubt or demonstra te the impossibility of every other
reasonable hypothesis” (quoting Sherman v. Minn. Mut. Life Ins. Co. , 255 N.W. 113, 115
(Minn. 1934))).
Because a plaintiff bears the burden of proof to establish proximate cause, however,
circumstantial evidence that is introduced “must be something more than merely consistent
with plaintiff’s theory of the case.” Zinnel v. Berghuis Constr. Co., 274 N.W.2d 495, 498–
99 (Minn. 1979). “Where the entire evidence sustains, with equal justification, two or more
inconsistent inferences so that one inference does not reasonably preponderate over the
others, the complainant has not sustained the burden of proof on the proposition which
alone would entitle him to recover. ” E.H. Renner & Sons, 203 N.W.2d at 835. Because
two or more consistent theories of proximate cause may each function as a substantial
factor in bringing about a certain result, however, a plaintiff need not establish that one of
those consistent theories preponderates over the others to bear her burden of proof as long
as a reasonable jury could conclude that the plaintiff’s theory was one of the substantial
factors. Osborne, 749 N.W.2d at 380 n.8.
In sum, c ircumstantial evidence may be used to sustain a plaintiff’s theory of
proximate cause, but when the plaintiff’s and the defendant’s theories of proximate cause
are inconsistent, the plaintiff’s theory must “reasonably preponderate” over any other
theories. E.H. Renner & Sons, 203 N.W.2d at 835.

14
B.
Having reviewed the relevant case law governing the use of circumstantial evidence
to establish proximate cause, we now apply that law to the facts of this case under our
summary judgment standard to determ ine whether a genuine issue of material fact exists
as to whether the condition of the stair proximately caused Joyce to fall. See Gradjelick,
646 N.W.2d at 230–34 (clarifying the governing substantive law before moving on to apply
that substantive law under the summary judgment standard). When viewing the record in
a light most favorable to Staub and resolving all factual doubts and inferences against
Myrtle Lake and Lown as we must, Henson, 922 N.W.2d at 190, we conclude that a
genuine issue of material fact exists such that a reasonable jury could infer that the poor
and degraded condition of the stair was a substantial factor in causing Joyce to fall .
Consequently, the district court erred by granting summary judgment.
1.
We first reject the reasoning by the district court and the court of appeals that
because no one saw how Joyce began to fall down the longer set of steps, summary
judgment is appropriate. That is not the law in Minnesota.
A plaintiff need not introduce direct eyewitness evidence of a fall to establish
proximate cause. Our decision in Majerus illustrates this principle with facts that are highly
similar to this case. In Majerus, the decedent was found dead in the basement o f his
apartment building approximately 30 feet from the bottom of the basement stairway. 113
N.W.2d at 452. The decedent’s wife brought a wrongful death claim against their landlord,
alleging that the condition of the negligently maintained stairway caused her husband’s
15
death. Id. The case was submitted to a jury, which found that the landlord was negligent
by failing to maintain the stairway and that the landlord’s negligence proximately caused
the decedent’s death. Id. The district court denied the landlord’s motion for a judgment
notwithstanding the verdict and the landlord appealed, challenging the jury’s proximate
cause finding. Id. at 454. The record consisted entirely of circumstantial evidence because
no one witnessed the decedent’s fall. Most of the evidence centered on the cause of
decedent’s death (a fall) and the degraded condition of the wooden stairway, which,
according to testimony from multiple witnesses, was chipped, uneven, and partially lacking
a handrail. Id. at 453. Additionally, another tenant in the building testified that she “was
really afraid” of the stairway. Id.
We upheld the jury verdict and finding of proximate cause, concluding that there
was “evidence from which a jury could infer that the death of decedent resulted from a fall
down the stairway ” and that the stairway “was defective in places” and negligently
maintained.7 Id. at 454 –55. We further concluded that sufficient evidence existed to
support the inference that the stairway’s defects were the cause of the fall and death. Id. at
455–56. We also observed that the plaintiff did not have to establish proximate cause by

7 In addition to the evidence mentioned above, the decedent’s f lashlight and tools
were found under the stairs and there was fresh splinter on one of the steps. Id. at 453. A
pathologist also opined that the decedent’s subsequent death resulted from a fall down the
stairway. Id. at 454. We relied on that evidence to resolve the contested question—not at
issue in this case—of whether the decedent in fact fell down the stair way. Id. at 454–55.
Further, our discussion of whether the poor condition of the stairway proximately caused
the decedent’s fall did not turn on evidence introduced to prove that the decedent actually
fell; rather, it turned on the reasonableness of the jury’s inference that defects in the
stairway were a substantial factor in the fall. See id. at 455.
16
direct evidence of the decedent’s fall, stating that “ it is not the law that there must be an
eyewitness to the accident; it is enough if the evidence is such that the jury can reasonably
infer that the defective stair [way] was the cause of the injury and death .” Id. at 455
(emphasis added). Finally, we explained that
a jury could reasonably infer that the defect in part of the stairway was the
cause of the accide nt which culminated in decedent’ s death. It is true that
there are other possible inferences, such as, foul play resulting in someone
pushing him down the stairs, his falling while intoxicated, an injury received
before he returned to the apartment; but none of these creates as reasonable
an inference as that reached by the jury.

Id. After reviewing several similar cases, 8 we concluded that “whether the evidence
sustains the inference of proximate cause” was a question for the jury, and we would not
disturb the jury’s finding “when it has made an inference reasonably warranted by the
evidence.” Id. at 456.
Majerus remains good law.9 A plaintiff need not introduce eyewitness evidence to
prove her claim or to e levate her theory above mere speculation to the point where it

8 See, e.g., Standafer v. First Nat’l Bank of Minneapolis, 68 N.W.2d 362, 366 (Minn.
1955) (“While it is true that the proof fails to show exactly how the accident happened, that
likewise is true in many negligence cases. It is not necessary that there be eyewitnesses to
the happening of an accident before there may be recovery. ”); Paine v. Gambl e Stores,
Inc., 279 N.W. 257, 259 –61 (Minn. 1938) (upholding jury verdict on proximate cause
based on the theory—supported solely by circumstantial evidence —that a faulty handrail
caused decedent to fall down a stair way); Mitton v. Cargill Elevator Co. , 144 N.W. 434,
435–36 (Minn. 1913) (concluding that plaintiff had introduced sufficient circumstantial
evidence of the condition and location of a steep stairway to send the question of proximate
cause to a jury despite lack of eyewitness evidence).

9 Understanding that Majerus is strong support for our decision today, t he dissent
suggests that we should simply overrule Majerus even though it has been Minnesota law
for nearly 60 years. We see no reason to do so. Palmer v. Walker Jamar Co., 945 N.W.2d

17
preponderates over competing inconsistent theories. This rule from Majerus applies easily
here because the facts of this case are so similar. Both cases involve wrongful death actions
rooted in a claim asserting negligent maintenance of a stairway , which left the stairway in
a degraded and dangerous condition. Both cases also center on the question of whether the
condition of the stairway proximately caused the decedent’s fall and deat h. And in both
cases, no one directly witnessed how the decedent began to fall. If anything, the
circumstantial evidence here is stronger than in Majerus; multiple witnesses saw Joyce in
motion at or near the bottom of the longer set of steps, whereas in Majerus, the decedent’s

845, 850 (Minn. 2020) (stating that we are extremely reluctant to overrule precedent
without a compelling reason).
Meanwhile, Lown attempts to distinguish Majerus in part by pointing to dicta from
our decision in Zinnel, which suggested that the plaintiff in Majerus may have been aided
by a now-repealed statutory presumption of due care for plaintiffs in negligence actions.
See Zinnel, 274 N.W.2d at 500 n.10 (stating that “it is likely the plaintiff in Majerus was
aided by the presumption of due care provided in” Minn. Stat. § 602.04 (1976)). But Zinnel
did not disturb the legal doctrine espoused in Majerus; indeed, in Zinnel we primarily
distinguished Majerus on factual grounds because , unlike in Majerus, the plaintiff’s
inconsistent theory in Zinnel was “no more reasonable than many other th eories which
could [have been] developed.” Id.
Moreover, the statutory presumption of due care we mentioned in Zinnel went
primarily to the question of whether the decedent in Majerus was contributorily negligent,
which at the time was a complete bar to recovery. See Price v. Amdal , 256 N.W.2d 461,
469 (Minn. 1977) (holding that Minn. Stat. § 602.04 was “an unconstitutional denial of
equal protection to those survivors against whom a wrongful -death action is brought ”
following passage of the comparative fault statute because it unduly favored plaintiffs
when deciding the question of whether and how much they could recover from a negligent
defendant); Winge v. Minn. Transfer Ry. Co. , 201 N.W.2d 259, 263 (Minn. 1972) (n oting
that before passage of Minnesota’s comparative fault statute in 1969 , “contributory
negligence of plaintiff was a complete defense” and weighing the comparative fault of
plaintiff and defendant was prohibited) . Consequently, the due care presumption did not
impact our core discussion of proximate cause in Zinnel because that presumption was
chiefly relevant to the issue of whether the decedent would be able to recover for damages,
not whether the defendant faced any liability for proximately causing the decedent’s injury.
18
body was discovered several hours after the incident, about 30 feet from the stairway, and
there was no direct evidence that he actually fell down the stairway. 113 N.W.2d at 453.
2.
We now consider whether a genuine issue of material fact exists as to whether the
poor, degraded, and dangerous condition of the stair was a substantial factor in causing
Joyce to fall. We conclude that a genuine issue does exist. Viewing the evidence and
associated inferences in a light most favorable to Staub, a jury could reasonably infer that
the condition of the stair was one substantial factor causing Joyce to fall. To the extent that
Myrtle Lake’s and Lown’s competing alternative theories conflict with Staub’s theory of
proximate cause, the evidence and inferences , when viewed in a light most favorable to
Staub, also reflect that a genuine issue of material fact exists as to whether Staub’s theory
preponderates over the alternative theories. Further, for reasons we explain below, a jury
could reasonably determine that Staub’s proximate caus e theory does not necessarily
conflict with the alternative theories. In that event, Staub would not need to prove that her
proximate cause theory preponderates over those theories.10

10 Staub asserted at oral argument that any evidence of a relevant building code
violation, on its own, could establish a causal relationship sufficient to survive summary
judgment. Thus, Staub appears to imply that a successful neg ligence per se claim
automatically establishes proximate cause as a matter of law. Staub is mistaken.
A negligence per se theory of tort liability “ substitutes a statutory standard of care
for the ordinary prudent person standard of care, such that a vi olation of a statute (or an
ordinance or regulation adopted under statutory authority) is conclusive evidence of duty
and breach. ” Gradjelick, 646 N.W.2d at 231 n.3. A defendant may face liability for
negligence per se when “ the persons harmed by the vio lation are within the intended
protection of the code and if the harm suffered is of the type the code was intended to
prevent.” Id. at 231. A successful negligence per se claim, however, establishes as a matter

19
Here, viewed in a light most favorable to Staub, the evidence—including deposition
testimony, expert reports, and photographs—establishes the following facts:
• The stair was degraded and in poor condition; the landing was rough and rocky
and the steps themselves were cracked, chipped, inconsistently spaced, leaning,
and unsafe to use.11
• Sam and Joyce had complained to Lown about the state of the stair and had
warned Lown that the stair represented a safety hazard.
• Joyce regularly used the stair leading out of the lodge and had complained about
the challenge of using it. She had previously used the longer set of steps down
which she fell.
• Finally, on the date of the fall, Joyce exited the lodge onto the landing . Shortly
thereafter, she fell down the longer set of steps, although how she began to fall
remains uncertain. She died as a result of injuries sustained during her fall.

of law only those elements of duty and breach; it does not establish proximate cause, which
the plaintiff must still prove with sufficient evidence. See Seim v. Garavalia, 306 N.W.2d
806, 810 (Minn. 1981) (noting that “negligence per se is not liability per se” and that a
defendant can still asse rt lack of proximate cause in the event a plaintiff establishes duty
and breach via a negligence per se theory of liability).
At any rate, we decline to address the competing arguments made by the parties
about the applicability (or lack thereof) of various building codes and standards to the resort
generally and the stair specifically, as they are not necessary to resolve the issue in this
case: whether Staub has introduced sufficient evidence on proximate cause to survive
summary judgment.

11 Myrtle Lake and Lown dispute Staub’s contention that the stair was dangerous.
Whether the stair was in fact dangerous—in other words, whether Myrtle Lake and Lown
were actually negligent in maintaining the stair and breached some duty of care to Joyce—
is an issue that may be addressed on remand. Given the procedural posture here, however,
we assume that the stair had deteriorated to the point where it was dangerous because Staub
introduced evidence supporting such a conclusion: the photographs, the report from Great
Northern Environmental Solutions , and witness testimony and affidavits discussing the
dangerous condition of the stair. The fact that there is competing evidence—such as the
Scalzo report, which concluded that the stair was not dangerous —does not al ter our
assumption. See Henson, 922 N.W.2d at 190 (noting that on appeal from summary
judgment, we resolve all doubts and factual inferences against the moving party).
20
Life experience and common sense , which a jury may rely on to draw reasonable
inferences when making a decision, tell us that a degraded, cracked, and chipped stair,
leaning away from a building, is a dangerous condition that may cause a person using the
stair to fall. And at this stage in the proceeding, we must a ccept the fact that the stair was
in a poor and degraded condition. We also accept Staub’s reasonable inference that the
condition of the stair meant that it was unsafe to use. Further, there is no dispute that Staub
was on the landing before she fell and that she, in fact, fell. Thus, at the summary judgment
stage, the circumstantial evidence on which Staub relies amounts to more than “mere
speculation or conjecture.” See E.H. Renner & Sons, 203 N.W.2d at 834. Consequently,
based on th e evidence in th e record , a jury could reasonably infer that the poor and
degraded condition of the stair was a substantial factor in causing Joyce’s death. See
Lubbers, 539 N.W.2d at 401; compare Gehrke v. McCabe’s Ace Hardware, Inc. , No. C4-
01-1408, 2002 WL 15679, at *2–3 (Minn. App. Jan. 8, 2002) (affirming grant of summary
judgment and parsing preponderating from speculative theories of proximate cause by
observing that there was no evidence of a dangerous condition “in the area of [ the
plaintiff’s] fall, and there [ were] other reasonable circumstanti al explanations of
causation”).12

12 Staub argues that, “[w]hen a [defendant] engages in conduct considered wrongful
because it leads to a harm, a jury should be able to infer that said conduct was the cause of
the harm using circumstantial evidence.” In other words, Staub argues that evidence of a
defendant’s breach of duty—on its own—can serve as circumstantial evidence upon which
a factfinder may infer proximate cause.
Staub cites to foreign cases, principally Liriano v. Hobart Corp., 170 F.3d 264 (2d
Cir. 1999) and Blados v. Blados , 198 A.2d 213 (Conn. 1964), to support this contention.

21
In addition, n o other reasonable circumstantial explanations of causation
preponderate over Staub’s theory. If anything, the alternative theories advanced by Myrtle
Lake and Lown (and the lower courts) skew toward speculation. For example, the theories
that Joyce fell due to dehydration because she drank coffee and it was a sunny July day or
that she fell because she was startled by a mouse or an owl have abso lutely no support in
the record.

Even if the cases cited by Staub support her breach-causation argument, our case law does
not. See, e.g., Pietila v. Congdon , 362 N.W.2d 328, 333 (Minn. 1985) (noting that even
assuming defendants owed a duty of care to plaintiff and breached that duty, plaintiff still
had to prove separately that the breach proximately caused the deaths at issue). Framed in
the context of this case, Staub cannot infer proximate cause solely by establishing breach,
i.e., proving that Myrtle Lake and Lown failed to properly maintain the stair in a safe
condition. The dissent’s position that we are in fact adopting such a standard (which the
dissent inaptly calls per se negligence) is not well founded. Rather, Staub must prove not
only that Myrtle Lake and Lown breached some duty of care by failing to maintain the stair
but also that their breach —the resulting defective condition of the st air—proximately
caused Joyce’s fall. Based on circumstantial evidence that not only shows that the stair
was poorly maintained such that it could cause a fall, and tha t Joyce was using that stair
and was observed falling down that stair, a jury could infer that the poorly maintained stair
was the proximate cause of Joyce’s fall. See Majerus, 113 N.W.2d at 455. We do not
impermissibly shift the burden of proof as the dissent suggests.
To the extent that Staub’s breach -causation argument can also be construed as an
implicit claim based on res ipsa loquitur (“the thing speaks for itself”), it also lacks merit.
The doc trine of res ipsa loquitur permits an inference of causation based on limited
circumstantial evidence when certain requirements are met. See Hestbeck v. Hennepin
Cnty., 212 N.W.2d 361, 365 (Minn. 1973). For a court to consider res ipsa loquitur, a
plaintiff “must prove three pre -conditions to its application: (1) that ordinarily the injury
would not occur in the absence of negligence; (2) that the cause of the injury was in the
exclusive control of the defendant; and (3) that the injury was not due to pla intiff’s
conduct.” Hoven v. Rice Mem’l Hosp. , 396 N.W.2d 569, 572 (Minn. 1986). Res ipsa
loquitur does not apply here, chiefly because the injury at issue —an injury resulting from
a fall down a set of steps—is something that may happen in the ordinary course without
any negligence. Moreover, although Staub raised the issue in her memorandum opposing
summary judgment before the district court, she did not argue a res ipsa theory before the
court of appeals and does not do so before us.
22
Myrtle Lake and Lown also suggest that Joyce’s replaced knee may have given out,
causing her fall. There is no evidence that Joyce’s knee was bothering her on the day of
the fall. More importantly, there is testimony in the record—which we must credit—that
Joyce “was doing real well” and “had no problems” with her recent knee replacement on
the day of her fall.
Further, when viewed through the appropriate summary judgment lens where all
facts and inferences must be construed in Joyce’s favor, a genuine issue of material fact
exists as to whether a jury could reasonably infer that Staub’s theory that Joyce fell because
of the condition of the steps preponderates over Myrtle Lake’s and Lown’s alternative
theories.
For example, Myrtle Lake and Lown suggest that Joyce may have tripped over the
laundry basket on the landing or was distracted while talking on a cell phone . But
testimony in the record tells us that the laundry basket remained on the landing after Joyce’s
fall, suggesting that Joyce did not trip over the basket . Further, a witness testified that
Joyce “was not talking on the phone” when she came outside onto the landing. In fact,
there is no evidence that anyone saw Joyce with a phone before she f ell.13 On summary

13 To bolster the alternative claim that Joyce fell because she was distracted by her
phone, the dissent relies heavily on the fact that a cell phone—that one witness said “must
have been” Joyce’s phone without further confirmation —was found in the grass after the
fall by someone other than the witness. There is no evidence as to how the phone ended
up in the grass nor evidence that Joyce even had a cell phone with her when she fell. The
record discloses that she regularly carried the “bar phone,” which was not a cell phon e,
around the resort. Another witness said that there was poor or no cell service in the area.
Ultimately, the dissent’s narrative about Myrtle Lake’s and Lown’s theory that
Joyce fell because she was distracted by the phone is a good example of how the dissent

23
judgment, we accept that the laundry basket did not tip over and that Joyce was not talking
on a phone. Accordingly, assuming as we must that a jury would draw all facts and
inferences in Joyce’s favor, Staub’s theory preponderates over Myrtle Lake’s and Lown’s
competing theories that Joyce tripped over the laundry basket or was distracted by a cell
phone.
Third, Myrtle Lake and Lown suggest that Joyce may have lost her balance by
bending over to pick up keys that she dropped . They su pport this claim with testimony
that a witness heard keys drop a short time before Joyce fell. But unlike the hard fact that
the stair was in a poor, degraded, and dangerous condition, (1) no one saw Joyce bend over
to pick up any keys and (2) there is no other evidence aside from the sound of dropping
keys that Joyce actually dropped keys or evidence of what happened to the keys if they
were dropped, such as testimony that Joyce had keys in her possession after the fall. In the
absence of such evidence, when construing factual doubts against Myrtle Lake and Lown
on summary judgment, we do not assume that Joyce bent over to pick up keys.
Finally, none of the alternative theories are necessarily inconsistent with Staub’s
position that Joyce fell because of the poor, degraded, and dangerous condition of the stair.
For instance, a jury could reasonably infer that the combination of Joyce bending over to
pick up keys and the poor, degraded , and dangerous condition of the stair caused her to
fall; in other words, that each cause independently served as a substantial factor in the fall.

ignores the procedural posture of the case. By picking out pieces of evidence that support
the alternative theory of causation, the dissent ignores our role on review of summary
judgment: to view all the evidence, and inferences to be drawn from that evidence, in a
light most favorable to the nonmoving party. Henson, 922 N.W.2d at 189–90.
24
Likewise, the theories that Joyce’s alleged knee problems or the possibility that she tripped
over the laundry basket caused her fall do not conflict with the theory that Joyce fell in part
due to the condition of the stair. Consequently, even if we concluded that one of the
alternative theories was an equally likely proximate cause of the fall as the poor, degraded,
and dangerous cond ition of the stair, a jury viewing all facts and inferences in favor of
Staub could reasonably conclude that each theory was a substantial factor, rendering
summary judgment inappropriate. See Osborne, 749 N.W.2d at 380 n.8 (noting that if two
or more the ories of proximate cause “ are consistent and are both substantial factors in
bringing about the result, they may both be a proximate cause of that result”).
C.
The dissent takes a different view of our summary judgment standard and
circumstantial evidence case law to conclude that our decision today “widens the door for
speculative awards.”
First, the dissent claims that our decision permits future juries “to infer causation
without any evidence tending to show that, on a particular occasion, the condition caused
the plaintiff’s injury.” It does not. The dissent’s argument is premised on an incorrect
assumption that Staub failed to introduce any evidence, aside from the degraded and
dangerous condition of the stair and proof that Joyce died as a result of falling down the
longer set of steps, to create a genuine dispute of material fact as to whether the condition
of the stair proximately caused Joyce’s fall. Staub introduced direct evidence in the form
of witness testimony that on the day of the fall, Joyce (1) exited the lodge onto the landing
25
and (2) fell down the longer set of steps. 14 This is more than simple evidence of the
condition of the stair; it serves as relevant evidence of Joyce’s use of the stair on a particular
occasion.
Second, the dissent claims that our decision “misinterprets our law on circumstantial
evidence.” Specifically, the dissent contends that we err by applying the rule that we
adopted in Osborne that (1) when a reasonable juror could conclude that a plaintiff’s theory
of causation was a substantial factor in causing harm and (2) when alternative theories are
consistent with the plaintiff’s theory (i.e., when each theory of causation could be one of
the substantial factors causing harm), a plaintiff need not establish that her theory of
causation preponderates over alternative theories. See 749 N.W.2d at 380 n.8.
The dissent makes two arguments to support this contention. First, the dissent cites
to E.H. Renner & Sons , 203 N.W.2d at 835; Zinnel, 274 N.W.2d at 499 ; and Village of
Plummer v. Anchor Cas ualty Co., 61 N.W.2d 225 , 227 (Minn. 1953), in which we
highlighted the need for a plaintiff’s theory to preponderate over competing inconsistent
theories of proximate cause. The dissent notes that in each of those cases, we upheld

14 The dissent takes issue with our description of “the stair” as including the landing
and both sets of steps collectively. The dissent implies that because Staub did not introduce
evidence demonstrating that Joyce began to descend the longer set of steps down which
she fell, Staub failed to introduce any evidence at all that she was using the steps at the
time of the incident.
We disagree. Photographs from the record demonstrate that the landing and both
sets of steps were all connected and functioned as a single means of egress from the lodge
and all were in a similar state of deterioration. Thus, it is not unreasonable to consider “the
stair” as a single unit that Joyce had to navigate. And as discussed above, Staub introduced
evidence that Joyce stepped out onto the landing, which at least one witness characterized
as degraded and leaning away from the building.
26
directed verdicts because the plaintiffs failed to meet their burden to show that their theory
preponderated over competing theories even though the theories in each case were not
necessarily inconsistent. The dissent’s analysis may be true as a descriptive matter. But
that descriptive fact is not analytically relevant . In none of those cases did we directly
confront and address the legal question of whether the rule that a plaintiff must show that
her theory of causation preponderates over alternative theories should apply when each
theory could be one of several substantial factors causing the harm.
We confronted that issue in Osborne, which was decided after the cases cited by the
dissent. Osborne arose after a person jumped off a bridge to his death. 749 N.W.2d at 369.
Osborne’s family sued a bowling alley that had served Osborne alcohol, claiming that
Osborne’s intoxication was a proximate cause of his death. Id. at 368–69. The defendant
countered that Osborne jumped from the bridge to escape law enforcement , noting that
after leaving the bowling alley, he was chased by the police. Id. at 369–70. On review of
the district court ’s grant of summary judgment in favor of the defendant, w e held that a
jury could reasonably conclude that Osborne’s intoxication and his desire to escape the
police were both substantial factors that caused his death ; in other words, they were not
inconsistent theories of proximate cause. Id. at 370, 380–81. We rejected an argument
made by the dissent in Osborne (like the argument the dissent makes here) that Osborne’s
family could not prevail because the intoxication theory did not preponderate over the
desire-to-escape-the-police theory. Id. at 380 n.8. In doing so, we stated that “the existence
of more than one cause of the injury does not necessarily lead to the conclusion that they
27
are inconsistent or that they are not both substantial factors in bringing about the injury .”
Id.
Which leads us to the dissent’s second argume nt: we should ignore our decision in
Osborne as binding precedent and limit it to the facts of the case . As with the dissent’s
proposal to overrule Majerus, we find no compelling reason to limit the legal principle that
drove our decision in Osborne. Cf. Palmer, 945 N.W.2d at 850 (stating that we are
extremely reluctant to overrule precedent without a compelling reason). Osborne is a
relatively recent case and, as noted, in deciding that case we rejected an argument quite
like the argument upon which the dissent relies in urging us to cabin the decision. Further,
the conclusion in Osborne makes sense . A plaintiff may establish proximate cause by
proving that a defendant’s conduct was a substantial factor in causing harm even when the
evidence establishes that the conduct of some actor or force other than the defendant was
also a substantial factor in causing harm. In that context, whe n the existence of an
alternative substantial factor does not defeat the plaintiff’s claim, there is no reason that the
conduct the plaintiff claims is a substantial factor must preponderate over the alternative
substantial factor. The plaintiff may prevail when the alternative substantial factor theory
is true. In other words, when there are two causes of a harm and a defendant may be found
liable if the plaintiff shows that the defendant is responsible for just one of the causes, it
makes no logical sense to require that the plaintiff prove that the cause for which the
defendant is responsible is more significant than the other cause. Osborne makes this clear,
and the dissent’s continued reliance on pre-Osborne case law—which did not address the
precise legal question at issue here and in Osborne—does not alter this reality.
28
D.
In sum, a plaint iff need not introduce direct eyewitness testimony of a fall to
establish proximate cause and may rely solely on circumstantial evidence to do so. Here,
when viewing all facts and reasonable inferences in a light most favorable to Staub, as we
must on review of summary judgment, we conclude that a jury could reasonably find that
Staub’s proximate cause theory—that the poor, degraded, and dangerous condition of the
stair was a substantial factor causing Joyce’s fall and death—preponderates over competing
theories to the extent that those theories are inconsistent with Staub’s . In addition, we
conclude that a jury could reasonably find that Staub’s theory does not necessarily conflict
with Myrtle Lake’s and Lown’s alternative theories. Thus, even assuming another theory
was a substantial factor in Joyce’s fall, such a conclusion does not automatically mean that
the condition of the stair was not a substantial factor. In other words, whether we view all
of the proximate cause theories argued here as inconsistent or consistent based on the facts
and reasonable inferences derived from the record, Staub has met her burden to establish a
genuine dispute of material fact sufficient to survive summary judgment. Consequently,
the district court erred by granting summary judgment to Myrtle Lake and Lown.

29
CONCLUSION
For the foregoing reasons, we reverse the decision of the court of appeals and
remand to that court for further proceedings.15
Reversed and remanded.

15 The district court also granted summary judgment to Lown on the independent basis
that Lown enjoyed immunity from liability under Minn. Stat. § 322C.0304, subd. 1. The
court of appeals did not address that issue. Staub, 2020 WL 7330583, at *3 n.2.
Accordingly, we remand to th e court of appeals to address whether the district court
properly granted summary judgment on Lowe’s claim that Minn. Stat. § 322C.0304 shields
him from liability. Once the court of appeals has done so, the case may be remanded to
the district court for further proceedings consistent with this opinion.

D-1
D I S S E N T
ANDERSON, Justice (dissenting).
I agree with the court that a plaintiff need not introduce eyewitness evidence to
prevail on a claim of negligence. Standafer v. First Nat’l Bank, 68 N.W.2d 362, 366 (Minn.
1955) (“It is not necessary that there be eyewitnesses to the happening of an accident before
there may be recovery.”). But I disagree that appellant Virginia Staub has made a sufficient
showing to raise her claim beyond “[m]ere speculation.” See Bob Useldinger & Sons, Inc.
v. Hangsleben , 505 N.W.2d 323, 328 (Minn. 1993). Staub has p roduced no evidence,
eyewitness or otherwise, showing that the defects in the stair was the reason that Joyce
Weeks fell. At most, she has shown that those defects were one of several possible causes.
Consequently, any verdict in favor of Staub would be speculative, and summary judgment
is appropriate. Because the court’s reversal of summary judgment is unjustified and widens
the door for speculative awards, I respectfully dissent.
The court holds that Staub’s offer of proof is enough to survive summary judgment.
I disagree for two related reasons: one, there is a complete lack of evidence about the reason
Joyce fell, and two, the likelihood of Staub’s theory of causation fails to outweigh the
likelihood of other potential causes. I address each in turn.
A.
It is axiomatic that a plaintiff’s claim cannot rest on “mere conjecture.” Orth v. St.
Paul, M. & M. Ry. Co., 50 N.W. 363, 365 (Minn. 1891); see Bob Useldinger & Sons, Inc.,
505 N.W.2d at 328 (“Mere speculation, without some concrete evidence, is no t enough to
avoid summary judgment.”). Thus, “when the record reflects a complete lack of proof on

D-2
an essential element of the plaintiff’s claim,” the plaintiff has failed to create a genuine
issue of material fact for trial, and the defendant is entitled to summary judgment. Lubbers
v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995) (emphasis added).
Staub presented evidence to show that the stair was in a defective condition: the
landing was rough and had a few cracks, and the steps were cracked, chipped, an d
inconsistently spaced. Because I am reviewing the district court’s decision to grant
summary judgment in favor of respondents Myrtle Lake Resort and James Lown
(collectively respondents), I accept these facts as true. See Henson v. Uptown Drink, LLC,
922 N.W.2d 185, 190 (Minn. 2019) (explaining that on review of a n order granting
summary judgment, we view the evidence in a light most favorable to the nonmoving party
and resolve all doubts and factual inferences in that party’s favor).
According to the court, that evidence, combined with “[l]ife experience and
common sense,” is enough to avoid summary judgment. The court reasons that because
life experience and common sense “tell us that a degraded, cracked, and chipped st air,
leaning away from a building, is a dangerous condition that may cause a person using the
stair to fall,” Staub’s evidence rises beyond mere speculation or conjecture.
I disagree. The only evidence to support Staub’s theory is evidence of the defective
condition of the stair. Perhaps this evidence shows that the condition could have caused
Joyce to fall. But the record contains no other evidence suggesting that, on this particular
occasion, the condition of the stair was the cause of Joyce’s fall. We know only that Joyce
fell; no one saw how that fall began. Witnesses saw her on the landing before she fell and
on the steps as she was falling, but they did not see the start of her fall. There also is no

D-3
physical evidence from the landing, steps, or rail, such as a fresh chip of cement, to suggest
that a specific defect caused her to fall. And the record does not contain any statements
from Joyce about why she fell.
The lack of any additional evidence to show causation, beyond evidence of the
allegedly dangerous condition, sets this case apart from several slip and fall cases in which
we found that the plaintiff had produced enough evidence to support the claim. For
example, in Lutz v. Lilydale Grand Central Corp. , we held that the jury could reasonably
infer that the plaintif f slipped on ice in a parking lot, based in part on the plaintiff’s own
statements, including about her degree of care in crossing the lot. 250 N.W.2d 599, 600
(Minn. 1977). In Smith v. Kahler Corp. , we held that the jury could have reasonably
inferred that the plaintiff tripped over a chair in a cocktail lounge, based in part on the
plaintiff’s description of how she caught her foot and fell around the chair. 211 N.W.2d
146, 150 (Minn. 1973). Again, we have no statements from Joyce about why or how she
fell.
In Paine v. Gamble Stores , the jury did not have the benefit of statements by the
injured party, who died because of his fall. 279 N.W. 257, 258 (Minn. 1938). Nevertheless,
we held that the jury could reasonably infer that the deceased person fell because of a
missing handrail based on a variety of circumstantial evidence: the body lay directly below
the place where the rail was broken, no dust was disturbed on the bottom steps, there was
a fresh scratch in the wall close to the broken rail, and th e deceased had a weak leg that
sometimes required him to grasp for support. Id. at 260. Here, we do not have any
comparable circumstantial evidence establishing the reason that Joyce fell.

D-4
Thus, in each of these cases, there was evidence of a dangerous c ondition and
evidence tending to show that the dangerous condition was operative in that particular
instance. Here, there is no additional evidence suggesting that the condition of the stair in
fact caused Joyce to fall. That void is fatal to Staub’s claim. See Lubbers, 539 N.W.2d at
401 (granting summary judgment because there were not “any facts in the record giving
rise to a genuine issue for trial on the essential element of proximate cause”). 1
Contrary to the court’s confident assertion, life experience and common sense do
not fill that void. 2 Life experience and common sense tell us many things, not just the

1 The court claims that the evidence showing causation on this particular occasion is
direct testimony that Joyce walked out of the lodge onto the stair and fell down the longer
set of steps. But again, that evidence shows nothing more than (1) the existence of a
dangerous condition in the vicinity of the injured person and (2) the fact of inju ry. The
record contains no direct testimony that shows the reason Joyce fell, which is the disputed
issue.

2 The cases cited by the court do not support its conclusion that evidence of a
dangerous condition plus life experience and common sense are sufficient in themselves to
raise Staub’s claim beyond mere speculation. See Lubbers, 539 N.W.2d at 401; Gehrke v.
McCabe’s Ace Hardware, Inc. , No. C4 -01-1408, 2002 WL 15679 (Minn. App. Jan. 8,
2002). In both cases, the plaintiff failed to present sufficient evidence to survive summary
judgment.
The case that best supports the court’s approach is Majerus v. Guelsow, 113 N.W.2d
450 (Minn. 1962). Majerus is factually similar to the situation here because the plaintiff
relied entirely on circumstantial evidence to prove that the defects in the defendant’s
basement stairway proximately caused the decedent’s fall and subsequent death. See id. at
455 (concluding that a jury could reasonably infer that the defect in part of the stairway
was the cause of the accident). As here, there was no testimony by the decedent about how
he fell.
I conclude that Majerus was decided incorrectly because, as here, there was no
evidence beyond the condition of the stair way to support a finding that the defects in the
stairway proximately caused the decedent to fall. See id. at 457 (Otis, J., dissenting); id. at
458 (Knutson, C.J., dissenting). We should take this opportunity to overrule Majerus or at
least limit its reasoning to the facts of that case.

D-5
inference accepted by the court. These concepts tell us that people are less likely to be
injured by a hazard of which they are aware. Joyce was well aware of the condition of the
stair and had complained about that condition to respondents. We are also informed by
these concepts that people are less likely to be injured by a hazard they have navigated
many times. Joyce had used the stair repeatedly. And as a matter of life experience and
common sense, there are many reasons why a person may trip and fall. Here, the evidence
equally sustains at least two theories about why Joyce fell that are equally plausible with
the theory asserte d by Staub, which is the next reason why Staub has failed to meet her
burden.3
B.
When a plaintiff relies entirely on circumstantial evidence to prove causation, a
plaintiff must make a greater showing than when the plaintiff relies on direct evidence. See
Hagsten v. Simberg, 44 N.W.2d 611, 613 (Minn. 1950) (stating that we require “a greater
degree of persuasiveness from circumstantial evidence than is required from direct
evidence”). It is not enough that the evidence is “merely consistent with [the] plaintiff’s
theory of the case.” Zinnel v. Berghuis Constr. Co. , 274 N.W.2d 495 , 499 (Minn. 1979).

But even if Majerus remains good law, my resolution of this case would not change
because I also conclude that Staub has no t shown that her theory of causation outweighs
other possible theories and, therefore, Majerus is distinguishable because it found that the
plaintiff’s theory was more likely than the alternative theories. See 113 N.W.2d at 455.

3 I agree with the court that several of the alternative explanations have either no
support in the record or are contrary to facts in the record. For example, there is no
evidence that Joyce was startled by a mouse or owl, and it is unlikely that Joyce tripped
over the laundry basket because a witness testified that the basket remained on the landing
after Joyce fell.

D-6
Rather, the evidence must permit a rational factfinder to conclude that it is more likely that
the injury was caused by the defendant’s action than by any other circumstance. Smock v.
Mankato Elks Club , 280 N.W. 851, 852 (Minn. 1938) (“Re asonable minds functioning
judicially must be able to conclude from the circumstances that the theory adopted by the
verdict outweighs and preponderates over any other theory.”); Alling v. Nw. Bell Tel. Co.,
194 N.W. 313, 314 –15 (Minn. 1923) (“The burden i s on [the] plaintiff to show that it is
more probable that the harm resulted in consequence of something for which the defendant
was responsible than in consequence of something for which he was not responsible.”).
When the plaintiff fails to make this sh owing, the question of liability is not one for the
jury. See Saaf v. Duluth Police Pension Relief Ass’n , 59 N.W.2d 883, 887 (Minn. 1953)
(“Where two opposing inferences can be drawn with equal justification from the same
circumstantial evidence[,] . . . both must be rejected as purely speculative.”); Smock, 280
N.W. at 852 (ordering judgment notwithstanding the verdict to be entered in favor of the
defendant).
Because Staub relies entirely on circumstantial evidence, she bears the burden of
producing evidence that permits a rational factfinder to find that her theory of causation
outweighs any alternative theory. See Alling, 194 N.W. 313, 314–15. The court disagrees
that Staub must make this showing but concludes that, in any event, Staub’s theory
outweighs other possible explanations.4

4 According to the court, a plaintiff’s theory of causation must outweigh an alternative
explanation only when that alternative is “fundamentally inconsistent” with the plaintiff’s
theory. Because it is not physically impossible for the condition of the stair and the

D-7
Here, there are at least two alternative explanations for why Joyce fell that are
equally consistent with the evidence as the theory charged by Staub. The first alternative
is that Joyce lost her balance while picking up her keys from the landing.
The court dismisses this theory because, it claims, there is no evidence that Joyce
actually dropped her keys or bent down to pick them up, aside from a witness who heard
the sound of dropping keys. But the court overlooks the broader context that supports this
inference.
Witnesses explained that Joyce was in the process of bringing the basket of laundry
out to her car, which she always used to bring the laundry to and from the cabins.
Obviously, Joyce could not drive the car without a car key. Another witness heard keys
hit “concrete” shortly after Joyce stepped out onto the concrete landing, and he believed
the sound to be caused by the “string of keys” Joyce used to unlock cabins. A witness also
attested that Joyce’s car was parked in its usual spot at the time of the accident. Taken as
a whole, these facts strongly suggest that Joyce had a set of keys with her, which she needed
to drive her car or unlock the cabins, and that she dropped those keys after she stepped
outside onto the concrete landing. From those facts, a jury could reasonably infer that
Joyce bent over to pick up the keys after she dropped them. Moreover, life experience and
common sense tell us that a 70-year-old woman, who was, as at least one witness testified,

explanations proposed by respondents to have each played a part, the court concludes that
Staub’s theory need not predominate. As I explain in section C, the court misinterprets the
meaning of “inconsistent” from our precedent.

D-8
“overweight,” could lose her balance and fall while picking up her keys from a narrow
landing partially obstructed by a laundry basket.5
A second explanation for why Joyce may have fallen is that she was distracted by
her phone. The court dismis ses this theory because a witness stated that Joyce was not
talking on a phone when she stepped outside onto the landing. But accepting that fact as
true says nothing about what Joyce was doing after she set the laundry basket down. A
witness stated that after Joyce set the basket down, it was 30 to 60 seconds before he heard
the keys drop. It was then approximately 30 seconds more before he heard Joyce yell.
That leaves ample time for Joyce to have used a phone in some manner. Notably, a witness
testifies that Joyce always carried a phone with her, and a phone was found on the ground
next to the stair after Joyce fell. 6 Because the phone ended up on the ground next to the
stair, a jury could reasonably infer that Joyce was holding it at the time that she fell. And
life experience and common sense tell us that a person can trip entirely because of their
own negligence when they are paying attention to a phone rather than where they are
walking.
Thus, the facts are equally consistent with at least two alternative reasons that Joyce
may have fallen: she lost her balance while picking up her keys, or she tripped because she

5 The court refuses to infer that Joyce bent over to pick up keys because all reasonable
inferences must be drawn in favor of Staub. But it is not reasonable to infer that Joyce
would leave her keys on the landing when she needed them to drive her car or unlock the
cabins.

6 Although w itnesses disagreed about whether the phone was a cell phone or a
wireless phone used in the bar, they agreed that Joyce must have been the one carrying it.

D-9
was looking at her phone. The court brushes over the facts supporting these inferences in
its haste to conclude that life experience and common sense assure us that the condition of
the stair is the most likely reason that Joyce fell.
The court also conveniently passes over critical assumptions in Staub’s theory. The
court repeatedly refers to the defective “ stair,” which it uses as shorthand for the landing,
both sets of steps, and, possibly, the handrail. But there is no evidence that Joyce walked
down the steps or touched the handrail before she fell. Witnesses saw Joyce on the landing,
but no witness saw her walk down the steps. To the contrary, witnesses stated that Joyce
would avoid using the longer set of steps, and given that Joyce would ordinarily take th e
shorter set of steps to bring the laundry to her car, no witness knew why she would use the
longer set of steps on this occasion. Accordingly, it is pure speculation that Joyce fell
because of a crumbling, cracked, leaning, or chipped stair.
As for the condition of the landing, there is evidence that the landing was not level
with the door to the resort and that its surface was “rough” and had some cracking. But it
is not clear what degree of risk these defects posed or whether these issues are more likely
to cause a 70-year-old woman to fall off a landing than the act of bending over to pick up
keys or using a phone. 7 Appealing to life experience and common sense when all three
theories are equally consistent with the evidence is nothing more than an invitation for the
jury to engage in speculation and conjecture. See Saaf, 59 N.W.2d at 887 ; Smock, 280

7 No expert testified as to the mechanism of the injury, such as how a crack or the
rough surface on the landing could have caused Joyce to fall.

D-10
N.W. at 852 (“[A] jury may not be permitted to guess as between two equally persuasive
theories consistent with the circumstantial evidence.”).
Our decision in Zinnel is instructive. There, a plaintiff sued highway contractors
for death and injuries arising out of a car crash. . 274 N.W.2d at 496. The plaintiff claimed
that inadequate signing, striping, and barricading of the construction zone was the
proximate cause of the accident. Id. at 498. We agreed with the district court that the
plaintiff’s theory was possible but “no more supported by” the facts than a theory that
speculated that the other driver’s negligence was the sole proximate cause of the accident.
Id. at 499. Therefore, we affirmed a directed verdict in favor of the contractors. Id.
Here, we are faced with a legally similar situation. Staub presented a theory that is
consistent with the facts, but that theory is “no more supported” than alternative
explanations relating to Joyce’s phone or keys. All of these theories are speculation .
Accordingly, the question of negligence is not one for the jury, and the district court
properly granted summary judgment to respondents. See Lubbers, 539 N.W.2d at 402 ;
Smock, 280 N.W. at 852. To permit otherwise is to “substitute speculation for pro of and
effectively shift from plaintiff to defendants the burden of proof” on causation. Hagsten,
44 N.W.2d at 615 (refusing to permit an inference of negligence or causation from the fact
of an accident).
C.
Beyond the application for this case, I am con cerned by the implications of the
court’s decision, which substantially widens the door for plaintiffs to bring speculative
claims.

D-11
According to today’s decision, proof of a dangerous condition plus life experience
and common sense is all that it takes for a plaintiff to avoid summary judgment on the
element of proximate causation when the injury is of a type known to result from the
condition. Following the example in Majerus, the court makes clear that under such
circumstances, a jury is permitted to infer causation without any evidence tending to show
that, on a particular occasion , the condition caused the plaintiff’s injury. But as I
explained, this approach requires less than the offers of proof we have upheld in other slip
and fall cases, see Lutz, 250 N.W.2d at 600; Smith, 211 N.W.2d at 150; Paine, 279 N.W.
at 260, and invites speculation.
A practical implication of the court’s decision is that it turns negligence per se into
“liability per se” for the purpose of summary judgment. When the plaintiff is a person for
whom a statute is intended to protect, and when the harm is of a type that the statute was
designed to prevent, a violation of the statute is negligence per se —that is, conclusive
evidence of the elements of duty and breach. Gradjelick v. Hance, 646 N.W.2d 225, 231
n.3 (Minn. 2002). But a plaintiff still must prove proximate causation. Seim v. Garavalia,
306 N.W.2d 806, 810 (Minn. 1981) (explaining that negligence per se is not liability per
se because the defendant can challenge proximate causation).
The court agrees in theory that negligence per se does not establish proximate
causation, supra at 19–20 n.12, but the court’s reasoning hollows out the plaintiff’s burden,
at least at summary judgment. After all, by definition , negligence p er se involves a
dangerous act or condition that the law is designed to prevent. But if the law is designed
to prevent a particular harm, then it must be true that life experience and common sense

D-12
tell us that the dangerous act or condition is known to cause the harm. And, according to
the court, that is all it takes to satisfy a plaintiff’s burden to prove proximate causation at
the summary judgment stage. This is impermissible burden -shifting. See Hanrahan v.
Safway Steel Scaffold Co. , 46 N .W.2d 243, 249 (Minn. 1951) (“Mere proof of the
happening of an accident or proof that death or injury resulted from the act of another is
not enough to establish negligence or its causal relation to the injury.” (emphasis added));
Hagsten, 44 N.W.2d at 615.8
That is not the only burden the court cuts loose. Traditionally, when a plaintiff relies
entirely on circumstantial evidence to prove causation, the plaintiff’s theory must outweigh
any other theory.
[A] jury may not be permitted to guess as between two e qually persuasive
theories consistent with the circumstantial evidence. The evidence must be
something more than consistent with the plaintiff's theory of how the accident
occurred. Reasonable minds functioning judicially must be able to conclude
from the circumstances that the theory adopted by the verdict outweighs and
preponderates over any other theory.

Smock, 280 N.W. at 852 (emphasis added).
The court jettisons this requirement because none of the alternative theories are
“necessarily inconsistent” with Staub’s position. That is, because it is possible that Joyce
fell both because of the defective condition of the landing or steps and because she was
trying to pick up her keys, the court concludes that Staub need not establish that one theory
is more likely than the other. See id.

8 Notably, the court has no response to my concern.

D-13
The court’s approach misinterprets our law on circumstantial evidence. We have
repeatedly said that when a plaintiff’s theory of causation is based entirely on
circumstantial evidence, the evidence must permit a reasonable factfinder to conclude that
an inference in support of the plaintiff’s case is more likely than any other alternative. See
id.; Bauer v. Miller Motor Co., 267 N.W. 206, 209 (Minn. 1936) (“No recovery can be had
if it is more probable that the accident was produced by some cause for which the defendant
was not liable.” (emphasis added)); Robertson v. Chicago, R. I. & P. Ry. Co. , 225 N.W.
160, 162 (Minn. 1929) (“To warrant a recovery the evidence must furnish a reasonable
basis for a finding that the accident is more likely to have resulted from the negligence
alleged than from other causes.” (emphasis added)); Alling, 194 N.W. at 315 (“If the facts
furnish no sufficient basis for inferring which of several possible causes produced the
injury, a defendant who is responsible for only one of such possible causes cannot be held
liable.” (emphasis added)); see also Hartwig v. Loyal Order of Moose, Brainerd Lodge No.
1246, 91 N.W.2d 794, 807–08 (Minn. 1958) (quoting Smock, 280 N.W. at 852)); Huntley
v. Wm. H. Ziegler Co. , 17 N.W.2d 290, 297 –98 (Minn. 1944) (quoting Robertson, 225
N.W. at 161)).
It is true that we have sometimes described the plaintiff’s b urden in terms of
outweighing “inconsistent” theories. See, e.g., E.H. Renner & Sons v. Primus, Inc. , 203
N.W.2d 832, 835 (Minn. 1973) (“Where the entire evidence sustains, with equal
justification, two or more inconsistent inferences so that one inference does not reasonably
preponderate over the others, the complainant has not sustained the burden of proof . . . .”
(emphasis added)); see also Zinnel, 274 N.W.2d at 498 (quoting E.H. Renner & Sons, 203

D-14
N.W.2d at 835); Vill. of Plummer v. Anchor Cas. Co., 61 N.W.2d 225, 227 (Minn. 1953).
But these cases do not apply “inconsistent” in the way that the court does here.
In E.H. Renner & Sons, we affirmed a directed verdict because there was no way to
tell whether the reason a water pump failed was because of t he plaintiff’s negligence or
some other cause. 203 N.W.2d at 835 (“[The] relationship between any acts or omissions
on the part of the plaintiff and the failure of the [water] pump are wholly a matter of
conjecture.”). Notably, there was no fundamental conflict between an allegedly negligent
installation of a rod by the plaintiff and the alternative theory of inadequate lubrication in
the pump. See id. at 834 (identifying alternative theories). But we did not excuse the
defendant’s lack of proof simply because multiple theories were technically consistent; any
verdict still would have been based on pure conjecture. Id. at 835.
Next, in Zinnel, we upheld a directed verdict for the defendant construction
contractors because, under the facts of the case , it was no more likely that a car accident
was caused by inadequate construction controls than by the other driver’s negligence. 274
N.W.2d at 499. But there is nothing fundamentally inconsistent about inadequate
construction controls and negligent driving. Although it is theoretically possible that each
played a part in causing the accident, that possibility did not entitle the plaintiff to have the
jury speculate about which theory, or a combination of the two, was the cause.
Finally, in Village of Plummer we upheld a directed verdict against the plaintiff
because the evidence equally supported inferences that the store lost money because of a
wrongful conversion by the manager, as alleged by the plaintiff, or by the intentional or
negligent misconduct of other people. 61 N.W.2d at 227. Obviously, it is possible for a

D-15
store to lose money for multiple reasons simultaneously, but once again we did not excuse
the plaintiff’s burden to show that its theory outweighed any alternative that could have
been the sole cause of the loss.
Based on the facts of these cases, it is clear that the court’s interpretation of
“inconsistent” is mistaken. An inconsistent inference is simply one that could account for
the plaintiff’s injury without the plaintiff’s theory of c ausation being true. We do not
excuse the plaintiff from his or her burden whenever it is possible that an alternative
inference and the plaintiff’s proposed inference each could have played a part. To conclude
otherwise is to presume that, in each of th ese cases in which we used the word
“inconsistent,” we then immediately misapplied it. That presumption is absurd. 9

9 The court claims that the facts of these cases are “not analytically relevant” because
we were not specifically asked in these cases to decide whether the rule changes when each
theory could be one of several substantial factors causing the harm.
The problem for the court is that it simultaneously wants to re ly on the word
“inconsistent” in the rule stated by these cases, particularly E.H. Renner & Sons , but to
ignore the way that these cases applied the very rule on which the court relies. The court
cannot have it both ways.
Furthermore, the court has no explanation for the many cases I cite that clearly state
that a plaintiff’s theory must preponderate over all other theories that could have caused
the plaintiff’s injury without giving rise to the defendant’s liability. See, e.g., Smock, 280
N.W. at 852.
Finally, the approach followed by the court goes beyond even Majerus and our other
slip and fall cases, in which we consistently required the plaintiff’s theory to outweigh the
possibility that an alternative theory, even if technically consistent with t he plaintiff’s
theory, could have been the sole cause of the plaintiff’s injury. See Lutz, 250 N.W.2d at
600 (determining that the inference in support of the verdict “reasonably outweighs and
preponderates over other theories or inferences”); Smith, 211 N.W.2d at 151 (finding that
the jury reasonably could have concluded that the plaintiff’s own negligence “was not a
substantial factor in bringing about her fall”); Paine, 279 N.W. at 260 (observing that the
“preponderance” of the evidence was with the ver dict and not with the “possibilities”
proposed by the defendant) ; Majerus, 113 N.W. at 455 (finding that none of the other

D-16
The court supports its approach with two of our decisions. See E.H. Renner & Sons,
203 N.W.2d at 835 (stating that an inference of causation in favor of the plaintiff must
outweigh “inconsistent” inferences); Osborne, 749 N.W.2d at 380 (declining to consider
whether the plaintiff’s theory of causation preponderated over another possible cause
because there was “nothing inconsistent” about finding two proximate causes). Neither
justifies the court’s approach.
As should be apparent, the court’s reliance on E.H. Renner & Sons is misplaced
because that case did not apply the meaning of “inconsistent” that the court uses here. And
Osborne does not justify the court’s approach because Osborne also misapplied the rule
from E.H. Renner & Sons .10 Consequently, the court’s position is contrary to the clear
weight of our precedent.

possible inferences of causation were “as reasonable an inference as that reached by the
jury”).

10 In Osborne, a dram shop case, we agreed that a district court must grant summary
judgment when the evidence supports “ ‘two or more inconsistent inferences so that one
inference does not reasonably preponderate over the others.’ ” 749 N.W.2d at 380 (quoting
E.H. Renner & Sons , 203 N.W.2 d at 835). We then concluded that, because there was
“nothing inconsistent” about finding two proximate causes, the evidence did not need to
provide a basis for distinguishing between two potential causes. Id. Instead, the jury could
find that either, or a combination, of the two causes produced the injury. Id.
This reasoning, if not the result, was flawed. Certainly, there can be more than one
proximate cause of an injury. But that does not relieve the plaintiff of the burden —when
relying entirely on circumstantial evidence—of providing the jury with a reasonable basis
for preferring a cause or a combination of causes leading to liability over an alternative
cause not leading to liability. See Robertson, 225 N.W. at 161 (“To warrant a recovery the
evidence must furnish a reasonable basis for a finding that the accident is more likely to
have resulted from the negligence alleged than from other causes.”).
As a practical matter, we need not overrule Osborne because the evidence
supporting the plaintiffs’ theory was much stronger than here. We recognized that the

D-17
Moreover, the court’s approach invites a jury to speculate abo ut whether the
plaintiff’s theory, an alternative theory, or some combination of the two proximately
caused an injury, as long the theories are not fundamentally inconsistent. A better
approach—and one supported by our long line of precedent—is to require that the inference
that the plaintiff’s theory was a cause (but not necessarily the sole cause) of the injury
outweighs an inference that an alternative theory or theories was the sole cause.
D.
The record lacks any evidence of the reason Joyce fell, bey ond evidence of the
defective condition of the stair. Consequently, Staub has shown at most that the defective
condition was a possible cause. Because there is no way for a jury to determine the cause
of Joyce’s fall without resorting to improper speculation and conjecture, Staub has not met
her burden, and I would affirm the court of appeals. The court prefers instead to relieve
Staub of her burden of presenting a nonspeculative claim and her burden of showing that

“known and proven effects of alcohol,” combined with the nature of the act —namely,
jumping off a bridge into a river to avoid arrest —provided the plaintiffs wi th sufficient
evidence to create a genuine issue of material fact as to whether the intoxication
proximately caused the deceased to jump. 749 N.W.2d at 377. Moreover, unlike here, the
evidence in Osborne included an expert who opined that the intoxicatio n played a
“ ‘substantial part’ ” in the deceased’s decision to jump. Id. at 381. Consequently, a
factfinder could reasonably conclude that it was more likely that the intoxication was a
substantial factor in the deceased’s decision to jump than that an alternative theory was the
sole cause of the decision.
Accordingly, we should limit Osborne to the facts of that case, rather than repeat a
misapplication of the rule from E.H. Renner & Sons and undercut the very purpose for
which our rule relating to circumstantial evidence developed, specifically, to prevent juries
from making awards based on pure speculation. See E.H. Renner & Sons, 203 N.W.2d at
834 (“This court has repeatedly held that verdicts cannot be based on mere speculation or
conjecture.”); Smock, 280 N.W. at 852 (“[A] jury may not be permitted to guess as between
two equally persuasive theories consistent with the circumstantial evidence.”).

D-18
her theory of causation preponderates over alternative explanations. Because the court’s
decision is a departure from the weight of our precedent, invites the jury to speculate as to
the cause of Joyce’s tragic fall, and opens the door for claims based on mere conjecture, I
respectfully dissent.

GILDEA, C.J. (dissenting).
I join in the dissent of Justice Anderson.