Trevor Johnson, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0778

Trevor Johnson,
Appellant,

vs.

Mathiowetz Construction Company,
Respondent,

PCiRoads, LLC,
Respondent.

Filed February 8, 2021
Affirmed
Smith, Tracy M., Judge

Steele County District Court
File No. 74-CV-19-1044

Andrew Davick, Ava Marie M. Cavaco, Meshbesher & Spence, Ltd., Rochester, Minnesota
(for appellant)

William L. Davidson, Jason R. Prochnow, Michael T. Burk e, Lind, Jensen, Sullivan &
Peterson, P.A., Minneapolis, Minnesota (fo r respondent Mathio wetz Construction
Company)

Paul T. Meyer, Aaron C. Abelleria, Welle Law P.C., Blooming ton, Minnesota (for
respondent PCiRoads, LLC)

Considered and decided by Smith, Tracy M., Presiding Judge; Hooten, Judge; and
Frisch, Judge.

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NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
Appellant Trevor Johnson challenges th e summary-judgment dismissal of his
negligence claim against respondents Mathiowetz Construction Company and PCiRoads,
LLC. Johnson’s claim arises out of personal inju ries that he suffered when he crashed his
motorcycle after driving over spilt gravel on a road near a road-construction project on
which respondents were working. Johnson argues that the district court erred by
determining that Johns on had not submitted evidence suffici ent to establish that either
respondent owed and breached a duty of care. We affirm.
FACTS
The following facts are uncontested. Math iowetz is a road-construction company
and was awarded a construction project on Hi ghway 14 in Steele County. Mathiowetz
subcontracted with PCiRoads to perform c oncrete paving work for the project. Highway
14 runs east and west. Near the construction- project site, Highway 14 is intersected by
Lemond Road, which runs at a southwest-to-nor theast angle. As part of its work on the
Highway 14 construction project , PCiRoads operated a concrete batch plant adjacent to
L e m o n d R o a d j u s t t o t h e n o rth of the Highway 14 project site. PCiRoads leased the
property for its batch plant from a private property owner.
On July 2, 2012, at around 9:00 p. m., Johnson was driving his motorcycle
northbound on Lemond Road on his way to Owa tonna. As he drove past the PCiRoads
batch-plant location, Johnson slowed his motorc ycle to allow a concrete truck to exit the
batch-plant property onto the roadway in front of him. Johnson obse rved the truck drop

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pea- to marble-sized gravel onto the road, but he did not obs erve any names or markings
on the truck.
Several hours later, Johnson was headi ng toward home, driving southbound on
Lemond Road. Just north of Highway 14, near the batch-plant site, Johnson was negotiating
a curve when he lost control of his motorcyc le, crashed, and sustai ned serious injuries.
Johnson contends that respondents’ negligence led to debris in the roadway that caused
him to crash. He alleges that the gravel debris dropped from the unidentified truck caused
him to lose control of his motorcycle and crash and that the companies involved in the
nearby Highway 14 construction—Mathiowetz and PCi—are responsible.
The remaining facts, while not all accepted by Johnson, are nevertheless established
by respondents’ evidence and not contradicted by any other evidence. During construction,
Mathiowetz and its subcontractors, including PCi, operated the construction site from 7:00
a.m. to 7:00 p.m. each workday. Mathiowetz’s standard practice was to sweep the project
site, including the Highway 14 roadway, befo re the close of work operations. PCiRoads
would also clean its work site. Mathiowetz last used Lemond Road as a northbound haul
route four days before Johnson ’s crash. At the time of J ohnson’s crash, there were no
Mathiowetz trucks or equipment along Lemond Road or Highway 14.
PCiRoads used the batch plant to produce the concrete for the project’s paving work.
The property that PCiRoads leased for the batch plant was privately owned and was used
by other contractors to store materials and conduct various construction-related activities.
When PCiRoads transported concrete from the batch plant to the Highway 14 project site,
PCiRoads used a private frontage road, not Lemond Road.

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A month before the crash, between June 4 and June 7, 2012, PCiRoads demobilized
the batch plant and moved its operation to Worthington. PCiRoads did not have any
concrete hauling trucks or concrete manufac turing equipment near Johnson’s crash site
until nine days after the crash. When PCiRoads did return to the project site, it did not use
the batch plant but instead used ready-mix trucks for the remaining concrete paving work.
Johnson sued Mathiowetz and PCiRoads for negligence. Both respondents moved
for summary judgment. The district court de termined that Johns on had not produced
evidence sufficient to prove that respondents owed and breached a duty of care.
Specifically, the district court concluded that Johnson had not presented evidence that
either respondent was hauling gravel from the batch plant on the evening of July 2, 2012.
This appeal follows.
DECISION
“We review a district court’s summary judgment decision de novo. In doing so, we
determine whether the district court properly applied the law and whether there are genuine
issues of material fact that preclude summary judgment.” Riverview Muir Doran, LLC v.
JADT Dev. Grp., LLC , 790 N.W.2d 167, 170 (Minn. 2010) (citation omitted). Summary
judgment is appropriate “when the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue
of material fact and that either party is entitled to a judgment as a matter of law.” Fabio v.
Bellomo, 504 N.W.2d 758, 7 61 (Minn. 1993); see Minn. R. Civ. P. 56.03. On appeal,
reviewing courts view the evidence in the light most favorable to the party against whom
judgment was granted. Fabio, 504 N.W.2d at 761.

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The party moving for summary judgment has the burden to show that summary
judgment is appropriate. Valspar Refinish, Inc. v. Gaylord’s, Inc. , 764 N.W.2d 359, 364
(Minn. 2009). The party opposing summary judgment “may not rest upon the mere
averments” in the complaint but “must present specific facts showing that there is a genuine
issue for trial.” Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845, 848 (Minn.
1995) (quotation omitted). General assertions and speculation are not enough to create a
genuine issue of material fact. Id.
A district court may grant summary judgment for a defendant in a negligence action
“when the record reflects a complete lack of proof” on any one of the four elements of the
claim: (1) the existence of a duty of care, (2) a breach of that duty, (3) an injury, or (4) the
breach of duty being the proxi mate cause of the injury. Louis v. Louis, 636 N.W.2d 314,
318 (Minn. 2001) (citing Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995)). Here,
the district court granted summary judgment for respondents based on its conclusion that
respondents did not owe Johnson a duty of care.
Two Minnesota cases are instructive in understanding a highway-construction
company’s duty of care. In Ferguson v. Benson, the supreme court affirmed a jury verdict
for the plaintiffs when highway-construction contractors allowed dirt to be deposited on a
roadway and rain caused muddy conditions re sulting in a devastating car crash. 244
N.W.2d 116, 117-18 (Minn. 1976). The crash occurred within the “highway construction
zone,” as equipment used to haul fill had been crossing the highway where the crash
occurred. Id. at 118. Ferguson confirms that a highway-construction company may be held

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liable for creating and failing to remedy, or warn the public of, hazards within the
construction zone. Id. at 119.
The inverse is also true. In Williams v. Harris , this court held that a highway-
construction company owes no duty of care to the public for hazards that are outside of the
construction zone. 518 N.W.2d 864, 868 (Minn. App. 1994), review denied (Minn.
Sept. 28, 1994). In Williams, we affirmed summary judgment for the defendant highway-
construction companies because the car crash at issue occurred along a detour route that
was neither designed nor maintained by the companies. Id.
Johnson, quoting Ferguson, argues that respondents ha d a duty to “‘take adequate
measures to protect the safety of the public’ within a construction zone.” As to Mathiowetz,
he argues that “there is no evidence to show this duty was adequately met” and that the
question of whether Mathiowetz “met its duty to clean the road should be left to the jury to
decide.” As to PCi, Johnson argues that the batch plant was near the construction site and
that, although PCiRoads did not have the batch plant set up on the day of the crash, it had
access to the facility and a jury could reasonably find that PC iRoads was “in control” of
the batch-plant site and had failed to keep the roadway clear of gravel.
We begin with Mathiowetz. Mathiowetz’s uncontradicted evidence establishes that
its hauling trucks last used the haul route on Lemond Road four days before Johnson’s
crash and that Mathiowetz swept after that use. On the eveni ng of Johnson’s crash,
construction operations had al ready ceased and there were no Mathiowetz trucks or
equipment along Lemond Road or Highway 14. Mathiowetz ended its construction
activities each workday by 7:00 p.m., and its regular practice was to sweep the roadway to

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clear gravel and debris, as it did at the Hi ghway 14 project site. Be cause the undisputed
evidence establishes that Math iowetz had no equipment operating along Lemond Road
during the evening of Johnson’s crash, there is no genuine dispute that the crash occurred
outside of the construction zone. Thus, on this record, Mathiowe tz owed no duty to
Johnson. See Williams, 518 N.W.2d at 868.
We turn to PCi. The undisputed eviden ce establishes that Lemond Road was not
used by PCiRoads as a haul route, even when the batch plant was operational. Instead,
PCiRoads transported concrete from the batch plant to the Highway 14 project site using a
private frontage road. Moreover, PCi’s concrete production operation was demobilized at
the batch plant almost a month before Johnson’ s accident and relocated to Worthington;
PCiRoads did not return to the Highway 14 project site until about nine days after
Johnson’s crash. In sum, PCi’ s unchallenged evidence establishes that, on the evening of
Johnson’s crash, PCiRoads did not have any concrete-hauling trucks on site, had no crews
working on Lemond Road, and was not manufact uring concrete. It would thus be “mere
speculation” to conclude that the truck that Johnson saw dropping gravel on Lemond Road
on the evening of the crash was PCi’s. See Bob Useldinger & Sons, Inc. v. Hangsleben ,
505 N.W.2d 323, 328 (Minn. 1993) (“Mere speculation, without some concrete evidence,
is not enough to avoid summary judgment.”).
Johnson suggests that a jury could find that PCiRoads nevertheless was “in control”
of what happened at the batch-plant site on the date of the crash because PCiRoads had
access to the site. But the undisputed evidence establishes that PCiRoads was just one of a
number of companies that leased the privately owned site and that those other companies

8
used the site to haul gravel and concrete onto Lemond Road. Johnson put forth no evidence
to show that PCiRoads had some responsibility over those companies.
Because the undisputed evidence establishes that at no point did PCiRoads transport
concrete on Lemond Road and that PCiRoads was not operating its batch plant site on the
date of the crash, there is no genuine dispute that the site of Johnson’s crash was not within
PCi’s construction zone. PCiRoads therefore owed no duty to Johnson. See Williams, 518
N.W.2d at 868.
Based on the uncontested facts, and taking all inferences in his favor, we conclude
that Johnson has failed to present sufficient evidence to link either respondent to the gravel
on Lemond Road that caused his crash. The undi sputed evidence establishes that the site
of the crash was outside the construction zone on July 2, 2012. Respondents therefore owed
no duty to Johnson, and the district court did not err by granting summary judgment for
respondents on Johnson’s claim.1
Affirmed.

1 Because we conclude that re spondents did not owe Johnson a duty of care, we need not
address whether the evidence is sufficient to survive summary judgment on the question of
breach of that duty.