David Loe, 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This opinion is nonprecedential except as provided by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
A22-0925

David Loe,
Appellant,

vs.

Robert Landis,
Defendant,

Twin Express, Inc.,
Respondent.

Filed March 6, 2023
Affirmed
Reilly, Judge

Hennepin County District Court
File No. 27-CV-21-12484

Michael A. Bryant, Bradshaw & Bryant, PLLC, Waite Park, Minnesota (for appellant)

Christopher P. Malone, Tamara L. Novotny, Cousineau, Van Bergen, McNee & Malone,
P.A., Minnetonka, Minnesota; and

Andrew R. Brown, Reding & Pilney, LLC, Lake Elmo, Minnesota (for respondent)

Considered and decided by Bjorkman, Presiding Judge; Segal, Chief Judge; and
Reilly, Judge .
NONPRECEDENTIAL OPINION
REILLY, Judge
In this appeal following the summary- judgment dismissal of his vicarious-liabi lit y
claim, appellant argues that the district court abused its discretion by determining that
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appellant’s expert was not qualified to opine on foreseeability, and therefore appellant
failed to create a genuine issue of mater ial fact as to a necessary element. We affirm.
FACTS
Respondent Twin Express hired defendant Robert Landis as a commercial truck
driver in 2018. Before hiring Landis, Twin Express reviewed Landis’s driving record and
criminal history—both were clean. In May 2019, Landi s drove Twin Express’s tractor-
trailer into a travel stop in Post Falls, Idaho to fill the gas tank. There were no open gas
pumps, so Landis pulled up behind appellant David Loe whose tractor-trailer was parked
at a gas pump. W hen a gas pump opened a few rows down, Landis moved his tractor -
trailer to that pump to refuel. Landis and Loe dispute how an argument started between
them, but they agree that Landis pushed Loe and that Loe fell and sustained injuries.
Loe sued Twin Express, alleging that Landis’s conduct seriously and permanently
injured Loe and that as the owner of the tractor -trailer and employer of Landis, Twin
Express was vicariously liable to Loe for his injuries. Twin Express filed a motion for
summary judgment arguing, in part, that the assault and battery of Loe was not foreseeable
because assaults are not a well -known hazard within the trucking industry nor is the
conduct related to Landis’s job duties as a truck driver.
Loe opposed Twin Express’s motion for summary judgment. He argued that
Landis’s actions were foreseeable because assaults are a well-known hazard in the trucking
industry. To support his claim against Twin Express, Loe submitted an expert affidavit
from a vocational consultant “with extensive expertise and knowledge pertaining to various
occupations and fields of employment.” According to the vocational cons ultant’s
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curriculum vitae, she is a c ertified rehabilitation counselor and her background includes
assisting individuals with finding suitable employment, presenting nationwide educational
training curriculums, and conducting statistical labor market research. In her affidavit, the
vocational consultant stated that she reviewed the Twin Express Employee Handbook, an
online summary report for truck drivers, a “SkillTran report” for truck drivers, and “various
articles pertaining to road rage in truck drivers.” The vocational consultant concluded that
“assaults by semi-truck drivers are foreseeable or should be foreseeable to employers of
truck drivers” because assaults are a “well -known industry hazard of semi -truck driving.”
The vocational consultant stated that the combination of stress and tight deadlines, “can
push the employee to make a poor decision” such as “physically assaulting someone who
is potentially slowing them down in order to get back on the road.”
The district court held a hearing on Twin Express’s summary-judgment motion. At
the hearing, the district court asked why the vocational consultant was qualified to give an
expert opinion on the foreseeability of Landis’s conduct . Counsel for Loe responded that
the expert is qualified as a vocational consultant who “gives opinions in a number of fields
of unemployment” and had “worked with a number of truckers.” He stated that her work
with the commercial trucking industry involved providing opinions on whether individuals
were employable in the field along with opinions on wage loss from being unable to work.
He argued that the affidavit provided sufficient evidence to present a genuine issue of
material fact to overcome a motion for summary judgment. Counsel for Twin Express
argued that the vocational consultant was not qualified to provide an expert opinion
because she had “never worked with the commercial trucking industry.”
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The district court granted Twin Express’s motion for summary judgment. The
district court determined that the vocational consultant is not qualified to give an expert
opinion and thus Loe could not prove Twin Express was vicariously liable for Landis’s
assault because “there is no evidence that Landis[] could be expected to engage in assault
or that his kind of actions were foreseeable in the trucking industry.” This appeal follows.
DECISION
Loe argues that the district court erred in granting Twin Express’s motion for
summary judgment because the submission of an expert affidavit created a genuine issue
of material fact. 1 Summary judgment is appropriate if “there is no genuine issue as to any
material fact and the movant is entitled to judgment as a matter of law.” Minn. R. Civ. P.
56.01. On appeal from a grant of summary judgment, this court reviews the evi dence in
the light most favorable to the nonmoving party to determine whether there are any genuine
issues of material fact and whether the district court correctly applied the law. Minn. Sands,
LLC v. County of Winona, 940 N.W.2d 183, 191 (Minn. 2020). Although we review de
novo the grant of a motion for summary judgment, we review the district court’s
evidentiary ruling on expert witness qualifications for an abuse of discretion. Gross v.
Victoria Station Farms, Inc., 578 N.W.2d 757, 760 (Minn. 1998); see also State v. Loving,
775 N.W.2d 872, 877 (Minn. 2009) ; Maethner v. Someplace Safe, Inc., 929 N.W.2d 868,
874 (Minn. 2019).

1 The district court also granted summary judgment dismissing Loe’s claims against Landis
based on the applicable statute of limitations. Loe did not appeal that decision.
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Loe’s theory is that Twin Express is liable for Landis’ s tortious conduct under the
doctrine of respondeat superior. Under that doctrine, “an employer is vicariously liable for
the torts of an employee committed within the course and scope of employment.”
Schneider v. Buckman, 433 N.W.2d 98, 101 (Minn. 1988) . “[A]n employer may be held
liable for even the intentional misconduct of its employees when (1) the source of the attack
is related to the duties of the employee, and (2) the assault occurs within work-related limit s
of time and place.” 2 Fahrendorff v. N . Homes, Inc., 597 N.W.2d 905, 910 (Minn. 1999)
(quotations omitted). Courts consider whether a tortious act was foreseeable when
analyzing whether the act relates to the duties of the employee. Hagen v. Burmeister &
Assocs., Inc., 633 N.W.2d 497, 504 (Minn. 2001) . “[T]o survive summary judgment on a
claim that an employ er is liable for an employee’s intentional tort under the doctrine of
respondeat superior, the plaintiff must present sufficient evidence to raise an issue of fact
with respect to the foreseeability of such misconduct by the employee.” Frieler v. Carlson
Mktg. Group, Inc., 751 N.W.2d 558, 584 (Minn. 2008).
Evidence in the form of an expert affidavit generally create s a genuine issue of
material fact precluding summary judgment. Fahrendorff, 597 N.W.2d at 912-13. Expert
opinions are admissible “[i]f scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in issue” and the expert is
“qualified as an expert by knowledge, skill, experience, training, or educat ion.” Minn. R.

2 For purposes of the summary-judgment motion and this appeal, the parties agree tha t
Landis committed an intentional tort against Loe while employed by Twin Express such
that Twin Express could be held vicariously liable.
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Evid. 702. In other words under Minnesota rule of Evidence 70 2, “expert testimony is
admissible if: (1) the witness is qualified as an expert; (2) the expert’s opinion has
foundational reliability; (3) the expert testimony is helpful to the jury; and (4) if the
testimony involves a novel scientific theory, it must satisfy the Frye-Mack standard.” State
v. Obeta, 796 N.W.2d 282, 289 (Minn. 2011). “ All expert testimony must satisfy the first
three parts of the Rule 702 test.” Doe v. Archdi ocese of St. Paul , 817 N.W.2d 150, 164
(Minn. 2012). “The knowledge requirement [of Rule 702] may be satisfied by either
formal education or sufficient occupational experience.” Gross, 578 N.W.2d at 761.
Ultimately, the determination of whether an exper t is qualified by knowledge, skill,
experience, training, or education to testify on a subject rests within the sound discretion
of the district court and we will not reverse absent a clear abuse of discretion . Id. at 760-
61; Minn. R. Evid. 702. “A district court abuses its discretion when its decision is based
on an erroneous view of the law or is inconsistent with the facts in the record.” In re Stisser
Grantor Tr., 818 N.W.2d 495, 508 (Minn. 2012).
Here, the district court found that the vocational consultant was not qualified under
the standards in Minnesota Rule of Evidence 702 to provide an expert opinion about the
foreseeability of assaults in the trucking industry. The district court determined that the
vocational consultant’s knowledge came from “some internet research” including “articles
on road rage in the trucking industry,” but that the vocational consultant had no specialized
knowledge or experience in the commercial trucking industry. The district cou rt therefore
declined to consider her affidavit and gave no evidentiary weight to it. See Fahrendorff,
597 N.W.2d at 912 (stating that affidavits that state bare legal or factual conclusions
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without showing a basis for the affiant’s knowledge and competency to testify may be
insufficient to raise a question of material fact). As a result, the district court determined
that there was no genuine issue of material fact about the foreseeability of Landis’s tortious
conduct.
Loe asserts that an expert affidavit presented in response to a motion for summary
judgment creates a sufficient issue of material fact to thwart a motion for summary
judgment. See id. at 910-11 (holding that an expert affidavit stating that sexual abuse in
group homes is a “well-known hazard” raised a question of fact about whether the wrongful
act was foreseeable); Marston v. Minneapolis Clinic of Psychiatry & Neurology, Ltd., 329
N.W.2d 306, 311 (Minn. 1982) (holding that expert testimony stating that sexual relations
between a psychologist and a patient is a “well -known hazard” created a question of fact);
L.M. v. Karlson, 646 N.W.2d 537, 543 (Minn. App. 2002) (holding that an expert affidavit
stating that sexual abuse of children by day-care workers was a “well-known hazard” raised
a genuine issue of material fact), rev. denied (Minn. Aug. 20, 2002). But the experts’
qualifications to provide an opinion about foreseeability was not challenged in any of these
cases. When an expert’s qualifications are challenged, the district court’s evidentiary
ruling on the admissibility of the expert opinion rests within the sound discretion of the
district court. Gross, 578 N.W.2d at 760.
Here, the district court applied the rule s of evidence and determined that the
vocational consultant was not qualified to offer an expert opinion on the foreseeability of
assaults in the commercial trucking industry because she “has no specialized knowledge or
experience in the field of trucking and the behaviors of truck drivers.” Based on our careful
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review of the record , we discern no abuse of discretion in the determination that the
vocational consultant was not qualified to opine about the foreseeability of assaults in the
commercial trucking industry. The vocational consultant’s qualifications did not show any
specialized knowledge, experience, or education in the field of commercial trucking. The
district court’s evidentiary ruling is not inconsistent with the record or contrary to the law.
Loe also argues that the district court usurped the role of the jury by making a
credibility determination about his expert. We disagree with Loe’s characterization of the
district court’s order. The district court did not make a finding about the credibility of the
vocational consultant. Rather, the district court analyzed her qualifications to provide an
expert opinion. And, as stated above, t he district court’s evidentiary ruling on the
admissibility of the expert opinion “rests within the sound discretion of the [district] court
and will not be reversed unless it is based on an erroneous view of the law or it is an abuse
of discretion.” Id. When expert testimony is necessary and no expert testimony or
affidavits are presented, Minnesota appel late courts uphold the district court’s grant of
summary judgment . See Frieler, 751 N.W.2d at 583- 84 (concluding that the submission
of an employer’s sexual harassment policy without other relevant evidence was insufficient
evidence to survive a motion for summary judgment); P.L. v Aubert, 545 N.W.2d 666, 668
(Minn. 1996) (concluding that summary judgment was proper when the plaintiff failed to
produce relevant evidence such as “expert testimony or affidavits”).
Based on the summary judgment record before us, viewed in a light most favorable
to Loe, we cannot conclude that the district court abused its discretion in excluding the
vocational consultant’s affidavit. Loe presented no other evidence that assaults are a
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foreseeable hazard in the commercial trucking industry. B ecause the district court did not
abuse its discretion in its evidentiary ruling and because Loe failed to produce other
evidence to create a genuine issue of material fact as to foreseeability, the district court did
not err in granting summary judgment for Twin Express.
Affirmed.