Mark D. Island, et al., Appellants,

This opinion is nonprecedential except as provided by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
A21-0924

Mark D. Island, et al.,
Appellants,

vs.

Jason D. Ferguson,
Respondent,

Mesa Underwriters Specialty Insurance Co.,
Respondent.

Filed February 7, 2022
Affirmed
Gaïtas, Judge

Wabasha County District Court
File No. 79-CV-20-320

Ken D. Schueler, John T. Giesen, Dunlap & Seeger, P.A. Rochester, Minnesota (for
appellants)

Peter M. Waldeck, Daniel C. Leitermann, Waldeck & Woodrow, P.A., Minneapolis,
Minnesota (for respondent Jason D. Ferguson)

Joseph F. Lulic, Timothy L. Garvey, Br ownson PLLC, Minneapolis, Minnesota (for
respondent Mesa Underwriters Specialty Insurance Company)

Considered and decided by Slieter, Pres iding Judge; Smith, Tr acy M., Judge; and
Gaïtas, Judge.
2
NONPRECEDENTIAL OPINION
GAÏTAS, Judge
In this negligence action stemming from a fire, appellants Mark Island and his
insurer Grinnell Mutual Reinsurance Co. (Grinne ll) challenge the district court’s grant of
summary judgment in favor of respondent s Jason Ferguson and his insurer Mesa
Underwriters Specialty Insurance Co. (Mesa). Appellants argue that the district court
improperly granted summary judgment becaus e there is a genuine factual issue as to
whether Ferguson negligently cau sed the fire. Additionally, appellants contend that the
district court should have drawn an advers e inference against respondents because they
failed to adequately preserve the fire scene for Grinnell’s investigation. We conclude that
the district court did not err by determining that there is no genuine factual issue regarding
Ferguson’s negligence or by rejecting appellants’ adverse-inference request, and we affirm.
FACTS
Ferguson and Island owne d neighboring buildings in downtown Mazeppa that
shared a wall. In his building, Ferguson op erated a tavern called WD’s Bar and Grill.
Island’s building housed residential tenants and a small office.
Around 3:45 a.m. on March 11, 2018, someone reported that the buildings were on
fire. Fire ultimately destroyed the two buildi ngs, and both structures collapsed into their
basements.
Several days later, the state fire marshal and an adjuster for Mesa inspected the fire
scene. Representatives of Grinnell viewed the scene but did not enter the property at that
time. The fire marshal and Mesa’s adjuster both suspected that the fire started on the first
3
floor of WD’s along the southern wall, where a pellet stove1 owned by Ferguson had been
located. During the fire, the flooring in this area collapsed, and the pellet stove fell into
the basement, landing on top of unused pellets.
Ferguson had used the pellet stove to heat WD’s, including overnight, for
approximately ten years. On the night of the fire, an 18-year-old employee—who had
worked at WD’s for about six months and ha d been trained to use the pellet stove—was
tasked with filling the stove with pellets at the end of his shift, between 11:00 p.m. and
midnight.
On April 4, 2018, representatives of Me sa and Grinnell spoke by phone. Mesa’s
agent told Grinnell’s agent that the cause of the fire was undetermined, that the company
had no interest in conducting further investig ation or incurring any further investigation
expenses, and that the propert y would be returned to Ferguson as soon as that day.
Grinnell’s agent asked Mesa to maintain the fire scene so that Grinnell could inspect it and
proposed that both insurers conduct a joint inspection of the fire scene. No agreement was
reached on any of these issues during the phone call. Grinnell’ s agent followed up to
discuss a joint inspection of the fire scene by leaving voicem ails with Mesa’s agent on
April 5, 16, and 17. Mesa’s agent did not return the calls.

1 “Pellet stove” is defined as “[a] stove used for heating which burns pellets made of wood
or other organic materials.” Pellet stove, Lexico.com, https://www.lexico.com/definition/
pellet_stove (last visited Jan. 31, 2022).
4
Ferguson and a family memb er went onto his property on April 10, 2018, with a
front loader to remove a marble bench and possibly some scrap meta l. The pellet stove
was not removed.
On April 25, 2018, with Fe rguson’s permission, Grinne ll’s investigator inspected
the site, including the pellet stove and its flue and venting co mponents. The investigator
did not request an additional site investigatio n or make any requests to retain items from
the site. Grinnell’s investigator concluded that the cause of the fire was unknown. One of
Grinnell’s agents later acknowledged, “I don’t have any proof of anyone being at fault.”
What was left on Ferguson’s property was demolished on April 30, 2018.
The fire marshal issued his final report in August 2018. It stated, “I am not able to
identify a particular point of origin due to the severity of damage, nor can I identify a
specific area of origin.” Although he had “a n inclination to believe the fire cause could
have been related to the use of the wood pellet stove,” he co uld not “prove that or even
eliminate the possibility.” The report ruled that the cause of the fire was “undetermined.”
Appellants filed a complaint against respo ndents asserting, as relevant here, a
negligence claim. 2 Respondents moved for summary judgment and the district court
granted the motion.
This appeal follows.

2 Appellants’ complaint also included a clai m of promissory estoppel, which appellants
withdrew, and a claim for constructive bailment, the dismissal of which is not challenged
on appeal.

5
DECISION
Appellants raise two arguments regarding the district court’s summary-judgment
dismissal of their negligence claim. First, th ey contend that the district court erred in
granting summary judgment because the circumstantial evidence in the record supports an
inference that Ferguson’s negligence caused the fire. Second, they argue that even if the
“circumstantial evidence were not enough,” the district court should have inferred
Ferguson’s negligence from respondents’ premature “destr uction” of the fire scene—
which occurred when Ferguson removed objects with a front loader before Grinnell’s
inspection.
1. The undisputed record evidence does not support appellants’ negligence
claim.

Summary judgment is proper if the movant shows, by citing to specific parts of the
record, including depositions, documents, affidavits, admissions, and interrogatory
answers, that “there is no genu ine issue as to any material fact and the movant is entitled
to judgment as a matter of law.” Minn. R. Civ. P. 56.01, .03(a). A genuine issue of material
fact exists “when reasonable persons might draw different conclusions from the evidence
presented.” DLH, Inc. v. Russ , 566 N.W.2d 60, 69 (Minn. 1997). “[O]n a motion for
summary judgment, the facts and the reasonable inferences to be drawn from those facts
must be resolved in [the nonmoving party’s] favor.” Staub v. Myrtle Lake Resort, LLC ,
964 N.W.2d 613, 620 (Minn. 2021). “Any doubt as to whether issues of material fact exist
is resolved in favor of the party against whom summary judgment was granted.” Lubbers
6
v. Anderson, 539 N.W.2d 398, 40 1 (Minn. 1995) (citing Rathbun v. W.T. Grant Co. , 219
N.W.2d 641, 646 (Minn. 1974)).
Appellate courts “review the grant of summary judgment de novo to determine
whether there are genuine issues of material fact and whether the district court erred in its
application of the law.” Montemayor v. Sebright Prods., Inc., 898 N.W.2d 623, 628 (Minn.
2017) (quotation omitted). Reviewing courts “view the evidence in the light most
favorable to the party against whom summary judgment was granted.” STAR Ctrs., Inc. v.
Faegre & Benson, L.L.P., 644 N.W.2d 72, 76-77 (Minn. 2002).
“Negligence is the fa ilure to exercise the level of care that a person of ordinary
prudence would exercise under the same or similar circumstances.” Doe 169 v. Brandon,
845 N.W.2d 174, 177 (Minn. 2014) (citation omitted). To survive summary judgment on
their negligence claim, appellants must point to evidence sufficient to show: (1) Ferguson
owed a duty of care, (2) Ferguson breached that duty, (3) appellants suffered harm, and
(4) Ferguson’s breach was the pr oximate cause of that harm. See Johnson v. Paynesville
Farmers Union Coop. Oil Co., 817 N.W.2d 693, 706 (Minn. 2012) (listing the elements of
a negligence claim). “[W]hen the record reflects a complete lack of proof” on any of these
four elements, a defendant is entitled to summary judgment. Louis v. Louis, 636 N.W.2d
314, 318 (Minn. 2001).
Here, the district court granted summary j udgment because the record evidence is
insufficient to prove that the pellet stove wa s the source of the fire and that Ferguson
“committed an underlying negligent act.” It concluded that, although Ferguson had a duty
to avoid foreseeable fires that would spread to Island’s building, the undisputed record
7
evidence could not establish that Ferguson bre ached that duty or that the fire was caused
by any negligence. Rather, the district cour t observed, appellants’ negligence claim was
based on mere speculation.
Appellants argue that the district court erred because there are critical factual issues
that a jury should decide. They contend that the record evidence establishes factual
disputes about the origin of the fire, whether Ferguson’s decision to put an 18-year-old in
charge of the pellet stove made a fire reasonably foreseeable, whether leaving an
unattended stove on overnight made a fire reasonably foreseeable , and whether other
conditions, including the buildin g’s wood frame and the pres ence of additional pellets
outside of the stove, made it reasonably foreseeable that a fire in the building would quickly
spread. Appellants also argue that a reasonable jury could infer from the record evidence
that Ferguson breached a duty of care in operating the pellet stove.
Ferguson responds that appellants failed to establish multiple elements of their
negligence claim.3 He argues that the record evidence does not show that he had a duty to
guard against fire, that he breached any such duty, or that his actions caused the damage to
Island’s building.

3 Ferguson and Mesa file d separate briefs in this appeal. Mesa’s brief argues that
appellants’ arguments to this court do not apply to Mesa because the negligence claim
concerns Ferguson alone and appellants have not challenged the district court’s dismissal
of the constructive-bailment claim. Appellan ts contend that Mesa waived the argument
that the negligence claim is lim ited to Ferguson by failing to raise it before the district
court. Because we affirm the district court’s summary-judgment dismissal of the case, we
do not address this separate issue.
8
In an action for a fire loss based on negligence, the burden of proof is on the plaintiff
to establish the origin and cause of the fire. See Rochester Wood Specialties, Inc. v. Rions,
176 N.W.2d 548, 552 (Minn. 1970). A plaintiff must prove the origin of the fire “by proof
and not by speculati on or conjecture.” Silver v. Harbison , 226 N.W. 932, 932 (Minn.
1929); see also Rochester , 176 N.W.2d at 552. Though in ferences must necessarily be
drawn in fire loss cases, “[t]he inferences mu st, nevertheless, be reasonably supported by
the available evidence.” Raymond v. Baehr , 163 N.W.2d 54, 55 n.2 (Minn. 1968).
“[U]nverified and conclusory allegations” are insufficient to defeat a summary judgment
motion. Gradjelick v. Hance, 646 N.W.2d 225, 230 (Minn. 2002).
Appellants’ theory of the case is that Fe rguson’s pellet stove was the source of the
fire. They further allege that Ferguson failed to exercise re asonable care in operating the
stove, which ultimately caused the fire.
We disagree with appellants that the re cord evidence reasona bly supports their
theory that the pellet stove wa s the source of the fire. Even viewing the undisputed
evidence and resolving the reason able inferences from that evidence in appellants’ favor,
this claim is purely speculative. The undisput ed evidence reasonably supports just one
conclusion: that the source of the fire is unknown. Each of the experts—the fire marshal
and fire investigators for both Mesa and Grinnell—concluded that the origin and cause of
the fire was undetermined or unknown. Although the pellet stove was considered as a
possible source of the fire during the investig ation, other sources, such as the electrical
system, were of interest to the fire marshal and investigators and could not be eliminated.
The fire marshal could not rule out or confirm any other potential sources. And there is no
9
evidence that the pellet stove had any defect or history of proble ms. Thus, given the
undisputed evidence, there is no “proof” that the pellet stove was the source of the fire. As
the district court noted, appellants’ theory about the origin of the fire is based entirely on
speculation and conjecture, which is insufficient to support a negligence claim in an action
for fire loss. See Silver, 226 N.W. at 932; Rochester, 176 N.W.2d at 552.
In turn, appellants’ theory that the fire was caused by an act of negligence in relation
to the pellet stove necessarily fails. “Mere proof of the happening of an accident is not
enough to establish negligence or its causal relation to the damage.” State v. Paskewitz, 47
N.W.2d 199, 204 (Minn. 1951 ) (citation omitted). To establish a negligence claim, a
plaintiff must prove that a party’s negligence caused or was a substantial factor in causing
the injury or damage. Staub, 964 N.W.2d at 620-21. A plaintiff need not present
eyewitness testimony or direct evidence of causation. Id. at 621. Inferences from
circumstantial evidence can support the causation element of a negligence claim. Id. But
circumstantial evidence must be more than “merely consistent with plaintiff’s theory of the
case.” Id. at 621 (quotation omitted). “Where the entire evidence su stains, 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.” Id. at 622 (quoting E.H. Renner &
Sons, Inc. v. Primus , 203 N.W.2d 832, 8 35 (Minn. 1973)). Whether a defendant’s
negligence caused the damage is genera lly a fact question for the jury. Id. at 621. But
“when reasonable minds could reach only one conclusion,” causation is a question of law.
Id. (quoting Canada ex rel. Landy v. McCarthy, 567 N.W.2d 496, 506 (Minn. 1997).
10
Appellants’ allegation that some act of ne gligence in relation to the pellet stove
caused the fire—which is based entirely on spec ulation that the pellet stove was even the
source of the fire—cannot reasonably preponderate over any other theory about the cause
of the fire. Given the record evidence, it is equally likely that the fire originated elsewhere.
Because, at most, the evidence is equally consistent with a theory that the pellet stove was
the source of the fire and theo ries about any number of a lternative sources, appellants
cannot establish that negligence in operating or maintaining the pellet stove caused, or was
a substantial factor in causing, the fire. Ab sent such evidence, appellants’ claim fails on
the element of causation as a matter of law.
In granting summary judgment, the district court also focused on the lack of any
facts in the record that could support appe llants’ claim that Ferguson breached a duty of
care. But without evidence of a causal link, appellants’ alleged breaches of the duty of care
cannot establish negligence. And because su mmary judgment is appropriate when the
record is insufficient to supp ort any element of a negligence action, we need not address
the breach element. Louis, 636 N.W.2d at 318; see also Doe 76C v. Archdiocese of
St. Paul, 817 N.W.2d 150, 163 (Mi nn. 2012) (noting that su mmary judgment will be
affirmed “if it can be sustai ned on any grounds”). We concl ude that the district court
properly granted respondents’ motion for summary judgment because appellants cannot
establish the causation element of their negligence claim.
11
2. The district court did not abuse its discretion by rejecting appellants’
spoliation claim.

Appellants argue that even if the “circu mstantial evidence we re not enough” to
establish the elements of a negligence cl aim for the purpose of summary judgment, the
district court should have inferred Fergus on’s negligence from respondents’ premature
destruction of the fire scene. According to appellants, Mesa released the fire scene to
Ferguson despite Grinnell’s request that it be preserved. And then Ferguson “destroyed”
the fire scene by removing some of his property with a front loader.
A party has a duty to preserve evidence when that party knows or should know that
litigation is reasonably foreseeable. Miller v. Lankow , 801 N.W.2d 120, 127-28 (Minn.
2011). Spoliation of evidence occurs when a party “[f]ails to preserve property for [another
party’s] use as evidence in pending or future litigation.” Id. at 127 (quotation and citation
omitted); see also Hoffman v. Ford Motor Co. , 587 N.W.2d 66, 71 (Minn. App. 1998)
(“Spoliation of evidence refers to the destruction of relevant evidence by a party . . . .”
(quotation omitted)). “Breach of the duty to preserve evidence once such a duty arises may
be sanctioned, under a court’s inhe rent authority, as spoliation.” Miller, 801 N.W.2d at
128.
One potential sanction for spoliation permitted in Minne sota is “an unfavorable
inference to be drawn from fa ilure to produce evidence in the possession and under the
control of a party to litigation.” Willis v. Ind. Harbor S.S. Co., 790 N.W.2d 177, 184 (Minn.
App. 2010) (quotation and citation omitted), rev. denied (Minn. Dec. 22, 2010). Where
both parties have equal access to the evidence, “no unfavorable inference may be drawn
12
from the failure of one to produce it.” Kmetz v. Johnson , 113 N.W.2d 96, 101 (Minn.
1962).
District courts have broad authority in deciding whether to impose sanctions for
spoliation. Patton v. Newmar Corp ., 538 N.W.2d 116, 119 (Mi nn. 1995). We review a
district court’s decision regarding spoliation sanctions for an ab use of discretion. Miller,
801 N.W.2d at 127. A party challenging the district court’s sanction bears the “difficult
burden of convincing an appella te court that the [district] court abused its discretion.”
Patton, 538 N.W.2d at 119. The burden is met “only when it is clear that no reasonable
person would agree [with] the [district] c ourt’s assessment of what sanctions are
appropriate.” Id. (quoting Marrocco v. Gen. Motors Corp. , 966 F.2d 220, 223 (7th Cir.
1992)).
The district court concluded that no spo liation had occurred and thus no adverse
inference was appropriate. According to the district court, nothing in the record suggested
“that the materials pulled from the burn site on April 10 hindered the investigation into the
cause of the fire” and that “the pellet stove was not disturbed for [Grinnell’s] April 25,
2018 inspection.” Ultimately, the district court concluded that the argument for spoliation
was too attenuated and “nothing in the record suggests that any specific evidence was
removed or destroyed which related to the fire’s origin.”
The record supports the district court’s conclusions. Appellants contend that the
fire scene was destroyed by Ferguson’s use of a front loader to remove a marble bench and
possibly some scrap metal, whic h hindered their ability to s how Ferguson’s negligence.
But appellants do not explain ho w these actions impacted thei r ability to investigate the
13
fire. Grinnell’s investigator could not name anything specifically related to the cause of
the fire that he expected was removed or disturbed when Ferguson used the front loader at
the fire scene on April 10. Thus, appellants’ argument that Ferguson’s actions spoliated
the entire fire scene and thereby hampered their investigation is unconvincing. Moreover,
appellants do not articulate how the alleged spoliation affected their ability to pursue their
negligence theory—that the origin and the cause of the fire was the pellet stove. The pellet
stove remained on the property undisturbed until Grinnell’s investigator inspected it. And
the investigator had the opportunity to fully inspect the pellet stove and its flue and venting
mechanisms on April 25, 2018. Because th e record supports the district court’s
determination that appellants failed to show spoliation, we see no abuse of discretion.
Affirmed.