Pedro Alonzo, 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This opinion is nonprecedential except as provided by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
A22-1796

Pedro Alonzo, et al.,
Appellants,

vs.

Richard Menholt, et al.,
Respondents.

Filed September 25, 2023
Affirmed
Johnson, Judge
Concurring specially, Gaïtas, Judge

Clay County District Court
File No. 14-CV-21-1126

James R. Hoy, Kellen B. Bubach, Maring Williams Law Office, P.C., Fargo, North Dakota
(for appellants)

Michael J. Tomsche, Tomsche, Sonnesyn & Tomsche, P.A., Minneapolis, Minnesota (for
respondents)

Considered and decided by Johnson, Presiding Judge; Gaïtas , Judge; and Kirk,
Judge.∗

∗Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant
to Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
JOHNSON, Judge
Pedro Alonzo was injured when the truck he was driving collided with a truck driven
by Alberto Lopez, an employee of Braaten Farms, which was hired by Menholt Farms to
haul sugar beets. Alonzo and his wife sued Richard Menholt and Menholt Farms, alleging
a claim of negligent selection of an independent contractor. The district court granted the
defendants’ motion for summary judgment. We conclude that the district court did not err
by granting the motion because the plaintiffs’ theory is not recognized by Minnesota law
and, furthermore, because there is no genuine issue of material fact as to whether Menholt
Farms negligently selected Braaten Farms to be an independent contractor. Therefore, we
affirm.
FACTS
Richard Menholt is the president of Menholt Farms Inc. and Menholt Farms LLC
(collectively Menholt Farms). Menholt Farms grows several types of crops, including
sugar beets. Harvesting and hauling sugar beets is a time-sensitive endeavor because sugar
beets will spoil if they are exposed to low temperatures for too long. For decades, Menholt
Farms has hired Braaten Farms, which is owned and operated by Darcy Braaten, to haul
Menholt Farms’s harvested sugar beets to a buyer, which processes the sugar beets into
crystal sugar. Menholt and Braaten have been personal friends for most of their lives.
In 2013 or 2014, Braaten Farms hired Lopez to drive one of its trucks to haul
Menholt Farms’s sugar beets. Lopez worked for Braaten Farms only during the fall harvest
3
season of each year, and his principal assignment was hauling Menholt Farms’s sugar
beets. In October 2018, Lopez was Braaten Farms’s only employee.
On October 19, 2018, at 6:17 a.m., Lopez was driving a large truck owned by
Braaten Farms , hauling Menholt Farms’s sugar beets, in the east- bound lane of Clay
County highway 34, near the city of Felton. Meanwhile, Alonzo was driving a semi-truck
and trailer in the west- bound lane of the same highway, hauling sugar beets for another
farm. The two trucks crashed head-on. A subsequent investigation revealed that Lopez
crossed over the center line before the crash. Both Alonzo and Lopez sustained serious
injuries and were taken to a nearby hospital.
Shortly after the collision, a law -enforcement officer learned that Lopez’s driver’s
license had been suspended. Later it was revealed that Lopez had been convicted of driving
while impaired on four occasions: once in 1997, twice in 2000, and once in 2008. Lopez
also had been convicted of driving after a license revocation in 2008 and had committed
petty-misdemeanor speeding violations on two occasions in 2017.
In March 2021, Alonzo and his wife commenced this action against Richard
Menholt and Menholt Farms LLC. The Alonzos alleged two claims: first, negligent
selection of an independent contractor and , second, vicarious liability for Lopez’s
negligence. Alonzo requested damages for his pain and suffering and for past and future
medical expenses. His wife requested damages for loss of services, care, comfort,
consortium, society, and companionship. The Alonzos later amended their complaint by
adding Menholt Farms Inc. as a defendant.
4
During the discovery phase of the lawsuit, the Alonzos sought to learn what
information Menholt Farms possessed concerning Braaten Farms and Lopez before the
collision. It is undisputed that Menholt Farms did not seek to determine whether Lopez
had a valid driver’s license, did not check Lopez’s driving record, did not check his
criminal history, and did not search the internet for any information about him. It also is
undisputed that Menholt Farms did not ask Braaten Farms for any of that information and
did not ask Braaten Farms whether it had made any of those inquiries. It is further
undisputed that Menholt Farms did not undertake any such actions or inquiries in prior
years, when Braaten Farms employed other drivers to haul sugar beets for Menholt Farms.
Discovery also revealed that, before hiring Lopez in 2013 or 2014, Braaten Farms
did not check his driving record, did not check his criminal history, and did not search the
internet for information about him. Braaten Farms did make an effort on one occasion to
determine whether Lopez was a licensed driver. In 2018, the year of the collision, Braaten
asked Lopez whether he had a driver’s license. Lopez responded in the affirmative and
showed Braaten his driver’s license, which Braaten viewed from one foot or a couple of
feet away.
In July 2022, the defendants moved for summary judgment, arguing that Minnesota
does not recognize a claim of negligent selection of an independent contractor and, in the
alternative, that Menholt Farms had no information to suggest that Braaten Farms and
Lopez were not qualified to haul sugar beets and no duty to inquire into the matter. In their
responsive memorandum, the Alonzos argued that the tort of negligent selection of an
independent contractor is a recognized cause of action in Minnesota and that Menholt
5
Farms was negligent in not exercising reasonable care to select a careful and competent
independent contractor. The Alonzos abandoned their vicarious-liability claim.
In November 2022, the district court granted the summary-judgment motion on the
sole remaining claim of negligent selection of an independent contractor. The district court
reasoned first that the supreme court either has recognized the claim of negligent selection
of an independent contractor or “will do so when confronted with the issue on appeal.”
The district court then reasoned that there are no “material fact issues suggesting
negligence by Menholt Farms in hiring Braaten Farms as an independent contractor.”
The Alonzos appeal.
DECISION
The Alonzos argue that the district court erred by granting the defendants’ motion
for summary judgment on their claim of negligent selection of an independent contractor.
Specifically, the Alonzos argue that there is a genuine issue of material fact as to whether
Menholt Farms failed to exercise reasonable care in selecting Braaten Farms as an
independent contractor. In response, Menholt Farms argues that the theory of negligent
selection of an independent contractor is not recognized in Minnesota and, alternatively,
that it exercised reasonable care in selecting Braaten Farms as an independent contractor.
A district court must grant a motion for summary judgment “if the movant shows
that 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. A genuine issue of material fact exists if a
rational trier of fact, considering the record as a whole, could find for the nonmoving party.
Frieler v. Carlson Mktg. Grp., Inc., 751 N.W.2d 558, 564 (Minn. 2008). This court applies
6
a de novo standard of review to a district court’s legal conclusions and views the evidence
in the light most favorable to the nonmoving party. Staub as Trustee of Weeks v. Myrtle
Lake Resort, LLC, 964 N.W.2d 613, 620 (Minn. 2021).
“Negligence is the failure 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). “To recover on a claim of negligence, a plaintiff must
prove: (1) the existence of a duty of care; (2) a breach of that duty; (3) an injury; and (4) that
the breach of the duty was a proximate cause of the injury.” Id.
A.
We begin by considering whether the supreme court’s opinion in Fenrich v. Blake
School, 920 N.W.2d 195 (Minn. 2018), applies to this case.
In their respective principal briefs, the parties focus on the Alonzos’ chosen theory
of negligent selection of an independent contractor. Neither party’s principal brief cites
Fenrich, in which the supreme court analyzed a negligence claim arising from a vehicle
collision caused by a third party. See id. at 201-06. The Fenrich opinion states, “As a
general rule, ‘a person does not owe a duty of care to another . . . if the harm is caused by
a third party’s conduct.’” Id. at 201 (quoting Doe 169, 845 N.W.2d at 177-78). But this
general rule is subject to two exceptions. First, the law may impose a duty of care if “there
is a special relationship between a plaintiff and a defendant and the harm to the plaintiff is
foreseeable.” Id. at 201-02 (quotation omitted). Second, the law may impose a duty of
care if “‘the defendant’s own conduct creates a foreseeable risk of injury to a foreseeable
plaintiff.’” Id. at 202 (quoting Domagala v. Rolland, 805 N.W.2d 14, 23 (Minn. 2011)).
7
If either exception applies, “a negligent defendant may be held liable to a plaintiff for harm
caused by a third party.” Id.
At oral argument, this court asked counsel whether and how Fenrich applies to this
case. After oral argument, we asked for supplemental briefing on that issue. The Alonzos
argue in their supplemental brief that “Menholt Farms owed a duty to exercise reasonable
care to employ a competent and careful contractor under the Restatement (Second) of Torts
§ 411” and that “the Restatement provides the most appropriate framework under which to
evaluate their claims.” The Alonzos note that Fenrich and similar opinions “establish a
more general framework for when a defendant may be liable for its own negligence for
harm caused by a third party” and provide for “exceptions to the general rule of nonliability
for harm to another caused by a third party.” The Alonzos argue in the alternative that
“Fenrich is consistent with the Restatement framework ” and that, under the Fenrich
framework, their claim is viable under the second exception to the general rule of non-
liability. Their supplemental brief concludes by stating that section 411 of the Restatement
provides “[t]he most applicable framework under which to analyze this case” because it
“specifically addresses the claim of negligent selection of an independent contractor.”
Similarly, Menholt Farms ’s supplemental brief urges the court to analyze the Alonzos’
claim under section 411 of the Restatement.
Having considered the parties’ supplemental briefs, we conclude that the Alonzos’
claim need not be considered under the analytical framework of Fenrich. As demonstrated
by Fenrich, a person may be held liable for harm caused by a third party based on a breach
of the general duty of reasonable care. Id. at 201-07. A person also may be held liable for
8
harm caused by a third party based on a breach of a specific recognized duty. For example,
in Domagala, the supreme court considered whether the plaintiff could prove his claim
under section 321 of the Restatement (Second) of Torts. 805 N.W.2d at 24-26. The
supreme court noted that section 321 of the Restatement had not been adopted and,
furthermore, declined to adopt it in that case. Id. The supreme court then stated that, even
though the defendant did not owe the plaintiff a duty under Restatement section 321, “a
duty can be imposed under other general negligence principles found in common law.” Id.
at 26. The court concluded that the plaintiff owed the defendant a general duty of
reasonable care. Id. at 26-28.
In this case, the Alonzos consistently have sought to prove a claim based on section
411 of the Restatement. In their complaint, they alleged that Menholt Farms breached a
“duty to use reasonable care to select a competent and careful contractor,” using language
that mirrors section 411 of the Restatement. In opposing Menholt Farms ’s summary-
judgment motion, the Alonzos argued specifically for recognition of the tort of negligent
selection of an independent contractor and contended that Menholt Farms was negligent in
selecting an competent contractor. In their principal appellate brief, the Alonzos again
focus on section 411 of the Restatement and their claim that Menholt Farms should be held
liable because it was negligent in selecting an independent contractor.
Accordingly, the Alonzos are seeking to prove a claim based only on a specific duty
arising from section 411 of the Restatement. They are not seeking to prove a claim based
on the general duty to exercise reasonable care, as was true in Fenrich. Thus, the
9
framework under which the supreme court analyzed the parties’ arguments in Fenrich does
not apply to this case.
B.
We continue by considering whether the Alonzos may pursue a claim of negligent
selection of an independent contractor.
In considering the defendants’ motion for summary judgment, the district court
reasoned that “Minnesota recognizes a claim for negligent selection of an independent
contractor or . . . will do so when confronted with the issue on appeal.” In their principal
brief, the Alonzos argue that the district court “appropriately concluded that Menholt Farms
had an affirmative duty to exercise reasonable care to employ a competent and careful
contractor” pursuant to section 411 of the Restatement but erred by concluding that there
is not a genuine issue of material fact as to whether Menholt Farms breached that duty. In
response, Menholt Farms argues primarily that the tort of negligent selection of an
independent contractor has not been recognized in Minnesota and, alternatively, that even
if the Alonzos’ theory were recognized, their evidence is insufficient to prove that Menholt
Farms breached a duty to select a careful and competent independent contractor.
The district court cited two opinions in support of its de facto recognition of the
Alonzos’ theory of negligent selection of an independent contractor. The first is Larson v.
Wasemiller, 738 N.W.2d 300 (Minn. 2007). The primary issue in Larson was a certified
question as to whether “the state of Minnesota recognize[s] a common law cause of action
of privileging of a physician against a hospital or other review organization.” Id. at 303.
In answering that question, the supreme court did not consider whether the tort of negligent
10
selection of an independent contractor has been or should be recognized in Minnesota. See
id. at 308-09.
The second opinion cited by the district court is Soto v. Shealey, 331 F. Supp. 3d
879 (Minn. 2018). The federal district court in Soto did not conclude that the Minnesota
Supreme Court has recognized the tort of negligent selection of an independent contractor.
See id. at 885-86. Rather, the Soto court stated merely that the Minnesota Supreme Court
“would recognize the tort,” if the issue were to come before the court. See i d. at 885
(emphasis added). Th at determination was, in essence, an attempt to predict the future
based on “‘all the available data,’” including “the highest state court’s recent decisions on
similar issues, lower-court decisions, and other jurisdictions’ precedents.” See id. (quoting
West v. American Telephone & Telegraph Co., 311 U.S. 223, 236-37 (1940)). We are not
obligated to follow Soto because a federal court’s interpretation of Minnesota law is not
binding on this court. See Moreno v. Crookston Times Printing Co., 610 N.W.2d 321, 330
(Minn. 2000); Lamere v. St. Jude Med., Inc., 827 N.W.2d 782, 788 n.1 (Minn. App. 2013);
In re Estate of Eckley, 780 N.W.2d 407, 411 (Minn. App. 2010).
In addition, the interpretative method used in Soto is inconsistent with this court’s
caselaw concerning its role in the Minnesota judicial branch. This court frequently has
observed that only the Minnesota Supreme Court has authority to recognize new common-
law doctrines for Minnesota. See, e.g., Wise v. Stonebridge Communities, LLC, 927
N.W.2d 772, 776 (Minn. App. 2019); Dukowitz v. Hannon Sec. Servs., 815 N.W.2d 848,
851 (Minn. App. 2012), aff’d, 841 N.W.2d 147 (Minn. 2014). For that reason, this court
consistently has refrained from deciding whether a new cause of action should be
11
recognized. See, e.g., Wise, 927 N.W.2d at 776; Dukowitz, 815 N.W.2d at 851; Jane Doe
43C v. Diocese of New Ulm, 787 N.W.2d 680, 690 (Minn. App. 2010); Deli v. University
of Minnesota, 578 N.W.2d 779, 783 (Minn. App. 1998), rev. denied (Minn. July 16, 1998);
Stubbs v. North Mem’l Med. Ctr., 448 N.W.2d 78, 81 (Minn. App. 1989), rev. denied
(Minn. Jan. 12, 1990).
This court’s approach is consistent with Larson, in which the supreme court
conspicuously stated, “This court has the power to recognize and abolish common law
doctrines, as well as to define common law torts and their defenses.” 738 N.W.2d at 303
(emphasis added) (citation omitted). In exercising that power in Larson, the supreme court
conducted an extensive, multi-factor analysis, which considered
(1) whether the tort is inherent in, or the natural extension of, a
well-established common law right, (2) whether the tort has
been recognized in other common law states, (3) whether
recognition of a cause of action will create tension with other
applicable laws, and (4) whether such tension is out-weighed
by the importance of the additional protections that recognition
of the claim would provide to injured persons.

Id. at 304. After discussing each of those factors at length and in depth, the supreme court
concluded that “the policy considerations underlying” the novel theory “outweigh[ed]”
competing policy considerations, which led the court to recognize the theory. Id. at 313.
In light of the above-described Minnesota caselaw and this court’s long-standing
practice, we decline the invitation to recognize a cause of action for negligent selection of
an independent contractor. The absence of such recognition by the supreme court is
determinative and is a sufficient basis for the conclusion that the district court did not err
by granting Menholt Farms’s motion for summary judgment.
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C.
In light of the possibility that the supreme court might recognize the tort of negligent
selection of an independent contractor, we assume without deciding that such a cause of
action, as described in section 411 of the Restatement, is recognized in Minnesota, and we
continue by considering whether the Alonzos have submitted evidence that would create a
genuine issue of material fact as to whether Menholt Farms breached such a duty.
Section 411 of the Restatement states as follows:
An employer is subject to liability for physical harm to
third persons caused by his failure to exercise reasonable care
to employ a competent and careful contractor

(a) to do work which will involve a risk of physical
harm unless it is skillfully and carefully done, or

(b) to perform any duty which the employer owes to
third persons.

Restatement (Second) of Torts § 411 (1965). A comment to section 411 defines the phrase
“competent and careful contractor” to mean “a contractor who possesses the knowledge,
skill, experience, and available equipment which a reasonable man would realize that a
contractor must have in order to do the work which he is employed to do without creating
unreasonable risk of injury to others, and who also possesses the personal characteristics
which are equally necessary.” Id., cmt. a.
Another comment to section 411 states that the degree of care that a company should
exercise in selecting an independent contractor depends on multiple factors, including “the
character of the work to be done—whether the work lies within the competence of the
average man or is work which can be properly done only by persons possessing special
13
skill and training.” Id., cmt. c. As an example, the comment states that if an independent
contractor holds himself or herself out as a carpenter or plumber, a company selecting the
independent contractor “is entitled to assume that a carpenter or plumber of good reputation
is competent to do such work safely,” and “there is no duty to make an elaborate
investigation as to the competence of the carpenter or plumber.” Id. (emphasis added).
“The fact that he is a carpenter or plumber is sufficient, unless the employer knows that the
contractor’s reputation is bad or knows of facts which should lead him to realize that the
contractor is not competent.” Id.
However, an illustration indicates that if a company selects an independent
contractor with knowledge that the independent contractor’s employees are likely to
engage in negligent conduct that endangers others, the company may be held liable for the
negligent conduct of an employee of the independent contractor. The illustration states
that, if company A hires independent contractor B “to haul material” with knowledge that
independent contractor B “habitually employs inexperienced and inattentive drivers,” and
if person C “is run over by a truck carrying A’s material and driven by one of B’s
employees,” company A “is subject to liability to C if the accident is due . . . to . . . the
inexperience or inattention of the driver.” Id., cmt. d, illus. 5.
These provisions of the Restatement collectively provide that, if a company hires an
independent contractor , the company may be liable for the negligent conduct of an
employee of the independent contractor if the company knew that the independent
contractor’s employees were likely to engage in negligent conduct that endangers others.
See id. A company hiring an independent contractor ordinarily does not have a duty to
14
conduct an inquiry or investigation into the competence or carefulness of an independent
contractor. Id., cmt. c. But a company may have such a duty if the independent contractor’s
reputation is bad or if the company knows of facts suggesting that the independent
contractor is not competent and careful. Id., cmt. c. In that situation, the company that
hired an independent contractor may be liable for the negligent conduct of an employee of
the independent contractor if the company should have known that the independent
contractor’s employees were likely to engage in negligent conduct that endangers others.
Id., cmt. c.
In this case, Menholt Farms hired Braaten Farms as an independent contractor to
haul its sugar beets.
1 A jury reasonably could infer that, in 2018, Menholt Farms believed
that Braaten Farms would hire Lopez to drive a truck to haul Menholt Farms’s sugar beets.
But the undisputed evidence is that Menholt Farms did not know that Lopez did not have
a valid driver’s license, did not know that Lopez had prior convictions for driving while
impaired, and did not know that Lopez had committed petty-misdemeanor speeding
violations.
The Alonzos, however, contend that Menholt Farms “knew or should have known”
that Braaten Farms was not a careful and competent contractor, with emphasis on “should

1The parties disagree about when Menholt Farms selected Braaten Farms. Menholt
Farms argues that it selected Braaten Farms as an independent contractor in the late 1970s
or early 1980s. The Alonzos contend that Menholt Farms selected Braaten Farms each
year in which Braaten Farms hauled sugar beets for Menholt Farms. We believe that the
difference between the parties’ two approaches is inconsequential. Accordingly, for
purposes of this non-precedential opinion, we assume without deciding that Menholt Farms
selected Braaten Farms as an independent contractor in 2018.
15
have known.” In essence, the Alonzos’ claim rests on the premise that Menholt Farms had
a duty to inquire or investigate before selecting Braaten Farms. The Alonzos argue in their
principal brief (as quoted below, verbatim) that Menholt Farms was negligent because it:
1. Did not know anything about what Braaten did
to vet or screen his employees.

2. Made no effort or inquiry to learn anything about
what Braaten did to screen its employees.

3. Did not ask Braaten about any background
information about any driver.

4. Did not inquire as to whether Braaten had
conducted a background check on Lopez.

5. Did not inquire as to whether Braaten had
conducted a driver’s record check on Lopez.

6. Did not inquire as to whether Braaten had
conducted a criminal record check on Lopez.

7. Did not ask Braaten whether Lopez had a valid
driver’s license.

8. Did not itself conduct any background check,
criminal record check, driver record check, or driver’s license
check on Lopez.

The Alonzos’ argument fails because it wrongly assumes that Menholt Farms had a
duty to inquire. Because driving a large truck does not require more special skill or training
than the work of a carpenter or a plumber, Menholt Farms was “entitled to assume that”
Braaten Farms was “competent to do such work safely.” See i d., cmt. c. The exceptions
to that general rule do not apply. There is no evidence that Braaten Farms had a bad
reputation, a nd there is no evidence that Menholt Farms knew of facts suggesting that
16
Braaten Farms is not a competent and careful independent contractor. To the contrary,
Menholt Farms had hired Braaten Farms to haul beets “for decades, ” during which time
there had been no vehicle collisions or other incidents of concern. More specifically,
Braaten Farms had employed Lopez for approximately four or five years for the purpose
of driving a truck to haul Menholt Farms’s sugar beets, without any issues. Consequently,
Menholt Farms did not have a duty to conduct an inquiry or investigation into Braaten
Farms’s competence or carefulness as an independent contractor. For that reason, there is
no genuine issue of material fact as to whether Menholt Farms should have known that
Lopez was likely to engage in conduct that endangers others.
Thus, the evidence in the summary-judgment record does not create a genuine issue
of material fact as to whether Menholt Farms breached a duty to exercise reasonable care
to select a competent and careful independent contractor. 2 That determination is an

2Even if Menholt Farms had known or should have known of Lopez’s driving
record, Menholt Farms might not be liable on the ground that there is no nexus between
Lopez’s prior driving-while-impaired convictions and speeding violations and the alleged
conduct that led to the crash that injured Alonzo. A comment to section 411 notes that, if
a company negligently selects an independent contractor that is not competent and careful,
the company may be liable to an injured person only if the injury “result[ed] from some
quality in the contractor which made it negligent for the employer to entrust the work to
him.” Restatement (Second) of Torts § 411, cmt. b (1965). In other words, “if the
incompetence of the contractor consists in his lack of skill and experience . . . but not in
any previous lack of attention or diligence in applying such experience and skill,” the
company that selected the independent contractor “is subject to liability for any harm
caused by the contractor’s lack of skill [or] experience, . . . but not for any harm caused
solely by the contractor’s inattention or negligence.” Id.; see also id., cmt. b, illus. 4. The
Alonzos claim that Menholt Farms was negligent in not knowing of Lopez’s prior driving-
while-impaired convictions and speeding violations. But it appears that Lopez’s negligent
driving had nothing to do with alcohol or speeding. The deputy sheriff who completed the
crash report did not check a box for “alcohol suspected,” which indicates that Lopez was
17
additional basis for the conclusion that the district court did not err by granting Menholt
Farms’s motion for summary judgment.
Affirmed.

not impaired by alcohol at the time of the crash. Similarly, there is no evidence that Lopez
was speeding at the time of the crash.

CS-1

GAÏTAS, Judge (concurring specially)
I agree with the opinion of the court that we must affirm the judgment of the district
court because the supreme court alone has authority to recognize new common-law
doctrines, and the supreme court has not adopted the tort of negligent selection of an
independent contractor. But I write separately because I disagree with the determination
that, were the supreme court to recognize th is common-law claim , summary judgment
would still be proper because the evidence here presents no genuine issues of material fact.
Because reasonable persons could draw different conclusions from the evidence as to
whether Menholt Farms breached the duty of reasonable care in selecting Braaten Farms
as an independent contractor, I believe summary judgment would be inappropriate under a
negligent-selection theory.
“[S]ummary judgment is a blunt instrument, and is inappropriate when reasonable
persons might draw different conclusions from the evidence presented.” Osborne v. Twin
Town Bowl, Inc., 749 N.W.2d 367, 371 (Minn. 2008) (quotations and citations omitted).
“[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). If there is doubt regarding the existence
of a genuine issue of material fact, “the doubt must be resolved in favor of finding that the
fact issue exists.” Rathbun v. W.T. Grant Co., 219 N.W.2d 641, 646 (Minn. 1974). As the
opinion of the court notes, 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).

CS-2

“Negligence is the failure 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). A plaintiff in a negligence action must establish four
elements: “(1) the existence of a duty of care, (2) a breach of that duty, (3) an injury, and
(4) the breach of that duty being the proximate cause of the injury.” Louis v. Louis, 636
N.W.2d 314, 318 (Minn. 2001). Because these elements generally require factual
determinations, “[s]ummary judgment is seldom granted on negligence issues.” Kaczor v.
Murrow, 354 N.W.2d 524, 525 (Minn. App. 1984); see also Montemayor v. Sebright
Prods., Inc., 898 N.W.2d 623, 633 (Minn. 2017) (reversing grant of summary judgment in
a negligence action because, in a “close case,” a jury should weigh evidence and make
credibility determinations). But “when the record reflects a complete lack of proof on any
of the four elements,” a defendant is entitled to summary judgment. Louis, 636 N.W.2d at
318.
The tort of negligent selection of an independent contractor recognizes that an
employer has a duty of reasonable care “to employ a competent and careful contractor
(a) to do work which will involve a risk of physical harm unless it is skillfully and carefully
done, or (b) to perform any duty which the employer owes to third persons.” Restatement
(Second) of Torts § 411 (1965). Negligent selection of an independent contractor is a close
cousin of the common-law tort of negligent credentialing, a doctrine that our supreme court
adopted in 2007. Larson v. Wasemiller, 738 N.W.2d 300, 306 (Minn. 2007) (observing
that the tort of negligent credentialing— which imposes liability on a hospital for
negligently granting credentials to a medical professional who harms a patient—is closely

CS-3

related to the tort of negligent selection of an independent contractor). In recognizing the
tort of negligent credentialing, the supreme court determined that a hospital’s negligence
in credentialing a medical professional “could be shown on the basis of what was actually
known or what should have been known at the time of the credentialing decision.” Id. at
310. If the supreme court were to adopt the related tort of negligent selection, presumably,
it would recognize this same standard. And, applying this standard to the evidence here, a
jury could find that Braaten Farms was not competent or careful in hiring drivers, and that
Menholt Farms should have known this fact when it hired Braaten Farms to haul sugar
beets.
The undisputed evidence establishes that Menholt Farms hired Braaten Farms to
haul sugar beets; sugar beets are transported on public roads via truck; Braaten Farms hired
Lopez as a driver several seasons before; Braaten Farms performed no screening of Lopez;
Lopez had a history of driving infractions, including driving-while -impaired offenses;
Lopez’s driver’s license was suspended; Lopez had an active arrest warrant; and, while
driving on a public road, Lopez caused a traffic accident that seriously injured Alonzo.
Additionally, the record shows that Menholt Farms hired Braaten Farms based on a
personal relationship, was unaware of what Braaten Farms did to screen drivers, made no
inquiries regarding Braaten Farms’ practices for hiring drivers, did not re quest any
information about the drivers Braaten Farms used, and asked no questions about Lopez’s
qualifications. Based on this evidence, and resolving the factual inferences in Alonzo’s
favor, reasonable persons could draw different conclusions from the evidence as to whether
Menholt Farms breached the duty of reasonable care in selecting Braaten Farms as an

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independent contractor. A jury could conclude that the work of hauling sugar beets on
public roads involves a risk of physical harm unless it is skillfully and carefully performed.
Alternatively, a jury could conclude that Menholt Farms owed a duty to the driving public
to select a careful and competent hauler. A jury could also conclude that Menholt Farms
failed to exercise reasonable care by taking no actions to confirm that Braaten Farms was
a careful and competent independent contractor. And a jury could conclude that Braaten
Farms was not a careful and competent contractor because it hired Lopez to drive its trucks.
The opinion of the court rejects the proposition that Menholt Farms had a duty to
inquire or investigate before selecting Braaten Farms to transport its sugar beets because
“driving a large truck does not require more special skill or training than the work of a
carpenter or a plumber .” Based on this supposition, the opinion deduces that Menholt
Farms was “entitled to assume” that Braaten Farms was a safe contractor, and thus, there
is no disputed fact issue as to whether Menholt Farms breached a duty of care in hiring
Braaten Farms.
I respectfully disagree with this reasoning. As the opinion of the court
acknowledges, the Restatement recognizes that the degree of care a person must exercise
in selecting an independent contractor depends, in part, on “the character of the work to be
done.” Restatement (Second) of Torts § 411 cmt. c. In my view, a jury could find that
hauling sugar beets in a large truck on a public road involves a risk of physical harm unless
it is skillfully and carefully performed or, at minimum, requires more care than selecting
an independent contractor to do other types of work. Based on the evidence here,

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reasonable persons could conclude that Menholt Farms failed to exercise reasonable care
by assuming that Braaten Farms was a safe contractor.
Because reasonable persons could find that Menholt Farms was negligent in hiring
Braaten Farms to haul sugar beets, I disagree with the opinion of the court insofar as it
concludes that the evidence would not warrant a jury trial if the supreme court were to
recognize the tort of negligent selection of an independent contractor. However, because
that tort does not presently exist under Minnesota law, I concur in the decision to affirm
the district court’s grant of summary judgment.