Cole Clark, 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This opinion is nonprecedential except as provided by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
A21-0136

Cole Clark,
Appellant,

vs.

Brian Goihl, et al.,
Respondents,

vs.

Andrew Arens,
Respondent.

Filed November 22, 2021
Affirmed
Jesson, Judge

Wabasha County District Court
File No. 79-CV-19-218

John Hamer, John A. Hamer Law Office, Faribault, Minnesota (for appellant)

Joseph M. Bromeland, Bromeland Law, LLC, Mankato, Minnesota (for respondents Brian
Goihl, et al.)

Emilio R. Giuliani, LaBore, Giuliani, & Viltoft, LTD., Hopkins, Minnesota (for respondent
Andrew Arens)

Considered and decided by Bratvold, Presiding Judge; Larkin, Judge; and
Jesson, Judge.
2
NONPRECEDENTIAL OPINION
JESSON, Judge
On a dark November night, appellant Cole Clark sustained injuries when a car he
was riding in collided with a full-grown bl ack cow that, for unknow n reasons, was loose
on Highway 60. Clark sued respondents Brian and Lisa Goihl—whom Clark claimed
owned the cow—for negligence. The district court granted summary judgment to the
Goihls, from which Clark appeals. We affirm.
FACTS
On the night of the accide nt in 2016, respondent Andrew Arens drove Clark home
from their shared workplace.1 As Arens traveled east on Highway 60, he noticed another
car parked facing him on the opposite side of the road. The car’s headlights and flashers
were active. Just after Arens passed the other car, he hit a black cow on the road. The cow
kicked through the windshield and struck Clark in the head. The cow then left the scene.
A couple driving home from church—the oc cupants of the other car with flashers
on—spotted the cow before Arens collided with it. The driver stated that they saw the cow
on the side of the road, and they turned around and activated their light s to try to find it
again. They witnessed Arens drive past and heard, but did not see, Arens hit the cow.
Near the time of the accide nt, the Goihls’ oldest son got a call from a high school
classmate who told him that a cow was loose on the highway near his parents’ farm. The
son drove down to the scene on a four-wheeler all-terrain vehicle to look for the cow. When

1 The following facts come from depositions given by the parties and two uninterested
witnesses to the accident.
3
he arrived at Highway 60 a few minutes later, the accident had already occurred. The son
did not find a cow, but he checked the gate to the pasture of his family’s farm and the
electric fence that enclosed it and found both working properly. Af ter he searched for
about 15 minutes, his father Brian Goihl arri ved, having noticed the accident on his way
home from hauling cattle.
Brian also looked for a cow in the open fields around his pasture but did not find
one. He had already checked his cattle earlier that day, and he too found the gate latched
and the fence activated on the night of the accident. When he checked on his cattle the
morning after the accident, all of his cattle were accounted for and none were injured. No
one ever found the cow that Arens struck, and only one witness claimed to see it after the
crash.
Unlike the other witnesses, the passenger of the other car stated in her deposition
that she saw a teenage boy driving a four-wheeler chase the cow back towards the Goihls’
pasture. At first, she stated that “[t]he son came and got the cow.” But the passenger later
clarified that she did not know that the person she saw was the Goihls’ oldest son, and that
she did not see the cow re-enter the pasture because she lost sight of it after the cow walked
over the top of a hill.
2

2 In an affidavit made afte r the depositions, the Goihls’ son specifically refuted the
passenger’s version of events. He acknowle dged driving the four-wheeler around his
parent’s field to look for the cow. But he averred that he “did no t locate any cow,” and
said that either the passenger was mistaken or that she saw a different boy on a four-wheeler
chasing the cow.
4
Other deposition testimon y addressed the frequency of cattle leaving their
enclosures on the Goihls’ farm. Brian stated that cattle get out of their enclosure very
rarely and could only remember it happening “two or three times in the last ten [to] fifteen
years.” The son estimated that cows had escaped more than three times before, and perhaps
as often as once a year. But the son stated that usually calves, instead of full-grown cows,
escaped because they were small enough to fit underneath the fence. Both Goihls declared
that, in the past, escaped cattle had stayed near the rest of the herd instead of wandering off
alone.
In November 2018, Clark filed suit against the Goihls, alleging that they negligently
allowed the cow to run free on the highway. The Goihls answer ed, denied Clark’s
allegations, and filed a third-party complaint for contribution or indemnity against Arens.
Later, the Goihls moved for summary judgment and agreed to assume that they owned the
cow for the purposes of their motion. In De cember 2020, the district court granted the
Goihls’ motion for summary judgment.
3 The court concluded that the Goihls were entitled
to summary judgment because Clark did not show that the Goihls permitted the cow to run
at large as required by Minnesota Statutes section 346.16 (2020).
Clark appeals.
DECISION
Clark argues that the district court e rred by granting summary judgment to the
Goihls because the reco rd shows genuine issues of mate rial fact regarding how the cow

3 The district court’s grant of summary judg ment to the Goihls on Clark’s claim also
resolved the Goihls’ third-party claim against Arens.
5
came to be on the highway. We review this grant of summary judgment de novo to
determine whether the district court correctly concluded that no genuine issues of material
fact exist. Montemayor v. Sebright Prods., Inc. , 898 N.W.2d 623, 62 8 (Minn. 2017). A
party resisting a motion for summary judgme nt must provide spec ific facts instead
of relying on speculations. Dyrdal v. Golden Nuggets, Inc. , 689 N.W.2d 779, 783
(Minn. 2004). And a defendant in a negligence action is en titled to judgment as a matter
of law if the plaintiff fails to prove any of the elements of negligence. Foss v. Kincade,
766 N.W.2d 317, 320 (Minn. 2009).
With this framework in mind , we turn to the requirements of a negligence claim.
To establish negligence, Clark must show that (1) the Goihls owed a duty of care, (2) the
Goihls breached that duty, (3) Clark was inju red, and (4) the Goihls’ breach caused his
injury. Fenrich v. The Blake Sch. , 920 N.W.2d 195, 201 (Minn. 2018). The “duty” here
is set forth in a statute, which forbids an owner of cattle to permit the cattle to run at large.
Minn. Stat. § 346.16. Violation of this statute is negligence per se, meaning that evidence
of a violation of the statute is conclusive evidence of breach of duty. Peterson v. Pawelk,
263 N.W.2d 634, 637 (Minn. 1978).
Accordingly, the central question before us is whether there is a genuine issue of
material fact as to whether the Goihls permitted the cow to run at large in violation of the
statute. If so, the claim s hould have gone to trial. Eischen v. Crystal Valley Co-op. ,
835 N.W.2d 629, 635 (Minn. App. 2013), rev. denied (Minn. Oct. 15, 2013). To answer
this question, we turn to precedent for guidance as to what constitutes permitting cattle to
run at large.
6
In Pigman v. Nott, the supreme court considered a factual situation involving a crash
between a car and one of two small horses th at were in the road . 233 N.W.2d 287, 287
(Minn. 1975). The court explained that the statutory phrase “running at large,” means “to
stroll, wander, rove or ramble at will without restraint or confinement.” Id. at 288. But an
owner is not negligent per se just because their animal runs at large; the owner must permit
this to occur. Peterson, 263 N.W.2d at 637 (an owner of cattle “permits” the cattle to run
at large when the owner makes it possible for the animal to escape or gives the animal the
opportunity to escape).4 And the mere presence of an animal on a roadway is not, by itself,
evidence that the animal’s owner permitted it to run at large, the supreme court held. Id.
With these interpretations of Minnesota Statutes se ction 346.16 in mind, we
consider whether there is materi al evidence in the record to demonstrate that the Goihls
permitted the cow to run at large. We conclude there is not.
Here, the Goihls enclose their pasture with an electrified fence that prevents cattle
from escaping so long as the fence is working properly. It is undisputed that both Goihls
(father and son) checked the fence on the night of the accident, and they found it working
and the gate latched. No evidence suggests that the cows would be able to escape from the

4 Clark argued in his brief that the dist rict court erred by looking to Minnesota
Statutes section 346.16 for the standard of care applicable to his negligence claim. But at
oral argument, counsel conceded that the district court properly applied section 346.16 to
Clark’s negligence claim. Consequently, we consider only whether the district court erred
by concluding that Clark had not shown the Goihls permitted the cow to run at large within
the meaning of section 346.16.
7
pasture if the fence and gate were both work ing correctly. Instead, the only cows that
usually escape are those small enough to fit underneath the electric fence.5
There is no evidence of frequent past esca pes which could lead a jury to find that
the Goihls permitted their animals to run at large. See Peterson, 263 N.W.2d at 636 (stating
no previous escapes occurred); Stewart v. Frisch, 381 N.W.2d 1, 2 (Minn. App. 1986)
(observing that the “horse had escaped on previous occasions.”), rev. denied (Minn.
Mar. 27, 1986). Nor is there a history of cows that did, on rare occasion, escape from the
pasture and walk to the highway. Both Goih ls stated that when cows did escape, they
usually stayed near the rest of the herd instead of wanderin g off alone. In sum, because
Clark has not presented evidence that the gate was open, that the fence was not electrified,
or that frequent escapes should have made th e Goihls aware of the possibility that a cow
could wander from their pasture onto the highway, there is not sufficient evidence to meet
the statutory requirement that the Goihls “permitted” the cow to run at large. Dyrdal,
689 N.W.2d at 783 (noting that a party resi sting summary judgment must show specific
facts supporting their claims and cannot rely on speculations or inferences).
To persuade us otherwise, Clark contends that the record reflects two genuine issues
of material fact concerning whether the Goihls permitted the cow to run at large. 6 First,

5 Brian Goihl also stated in his deposition that two or three times in the last 15 years, bulls
knocked down parts of the fence while fighting. But the animal that escaped here was a
cow, not a bull, and there is no evidence that any part of the fence was damaged that night.
6 Clark also argues that a recent nonprecedential opinion by this court shows that summary
judgment was not appropriate in this case. Nonprecedential opinions are not binding
authority, Minn. R. Civ. App. P. 136.01, subd. 1(c). Nor is this opinion persuasive here
because in that case, the plaintiff produced testimony by an independent witness that a jury
8
Clark argues that the passenger’s deposition st atement supports his conclusion that the
Goihls must have left the gate open, because the passenger said she witnessed the Goihls’
oldest son chase the cow back towards the pasture. But the passenger did not state that she
saw either an open gate or the cow re-enter the pasture. While the passenger’s statement
could suggest that the Goihls owned the cow, Clark’s assertion that her statement shows
that the gate was open is purely speculative.7
Second, Clark points to inconsistencies between the statements of Brian Goihl and
his son regarding the fre quency of past escapes. 8 Brian Goihl testified that cattle had
escaped around two or th ree times in the past ten or fift een years, while his son testified
that cattle had escaped more than three times and perhaps as often as once a year. But this
minor inconsistency does not raise a genuine issue of fact concerning whether either Goihl
lied about finding the gate latc hed and the fence working. Nor does either estimate of

could have relied on to fi nd that the defendant-farmer permitte d his cattle to run at large.
Clark has produced no such evidence here.
7 Clark also argues that the fact of the animal ’s escape should give rise to a presumption
that the Goihls we re negligent under Stewart. 381 N.W.2d at 2. But because the issue
before the Stewart court was whether the person who crashed into the horse was negligent
instead of whether the animal’s owner was negligent, the court’s passing statement that a
presumption “may arise” is not controlling. Id. at 3. And Peterson rejects the notion that
an owner of livestock is negligent merely be cause an escape happens at all. 263 N.W.2d
at 637. Accordingly, Stewart does not relieve Clark of his burden to present specific facts
showing that the Goihls permitted the cow to run free.
8 Clark also argues that there is a fact question regarding how long the son knew that a cow
was loose on the road near his parents’ farm. But this is not an issue of material fact
because whether and how long the son knew that the cow was loose is not evidence that
the Goihls permitted the cow to run at large.
9
infrequent past escapes, in an d of itself, establish a disput e as to whether the Goihls
permitted the cow in this case to run at large.9
In sum, the central evidence that Clark submits to establish that the Goihls permitted
the cow to run at large is the fact th at a cow was on Highway 60 one night in
November 2016. Because the presence of an animal on a road is not sufficient to support
a claim of negligence per se under Minnesota Statutes section 346.16, the district court
properly granted summary judgment to the Goihls.
Affirmed.

9 Finally, Clark argues that his negligence claim should have gone to trial because the jury
could infer that the Goihls were negligent because the cow escaped at all under a doctrine
called res ipsa loquitur. Res ipsa loquitur provi des that, in certain circumstances, the fact
that an accident happened at all raises an inference of negligence. Dewitt v. London Rd.
Rental Ctr., Inc., 910 N.W.2d 412, 414 n.2 (Minn. 2018). But a plaintiff claiming that the
defendant violated section 346.16 must show more than the presence of an animal on a
road. Peterson, 263 N.W.2d at 637. Accordingly, Cl ark cannot rely on this doctrine to
survive the Goihls’ motion for summary judgment.