James Thomas Miller, 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This opinion is nonprecedential except as provided by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
A23-1937

James Thomas Miller,
Appellant,

vs.

Tarja L Lewis on Behalf of the Estate of Mark Thomas Pavelich, Deceased,
Respondent.

Filed September 16, 2024
Reversed and remanded
Bratvold, Judge

Cook County District Court
File No. 16-CV-22-140

Rhett A. McSweeney, McSweeney Langevin, LLC, Minneapolis, Minnesota (for
appellant)

Scott A. Witty, Holly E. Haller, Hanft Fride, A Professional Association, Duluth,
Minnesota (for respondent)

Considered and decided by Larkin, Presiding Judge; Bratvold, Judge; and Reilly,
Judge.*
NONPRECEDENTIAL OPINION
BRATVOLD, Judge
Appellant challenges the summary-judgment dismissal of his civil assault and
battery claims against respondent estate, arguing that the district court erred by determining

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
as a matter of law that the tortfeasor, who is now deceased, lacked mental capacity to form
the intent necessary to support an intentional-tort claim. We conclude that the district court
erred by granting summary judgment because it applied inapposite caselaw and the record
evidence raises genuine issues of material fact about the tortfeasor’s intent. Because we
conclude that respondent was not entitled to judgment as a matter of law, we reverse and
remand for further proceedings.
FACTS
Appellant James Thomas Miller sued respondent Tarja L. Lewis on behalf of the
estate of Mark Thomas Pavelich (the estate), alleging that he was injured by Pavelich, who
is now deceased . For the purposes of summary judgment, the estate accepted the facts
alleged in Miller’s complaint as evidence and the district court viewed the evidence in the
light most favorable to Miller, the nonmoving party.
On August 15, 2019, Miller and Pavelich went canoeing and fishing on Brule Lake.
Later that day, they left the lake to return to Pavelich’s home. Miller and Pavelich each
drank one beer on the way. Pavelich “took one sip out of a second beer and then went
silent” for the rest of the drive. When they arrived at Pavelich’s home, Miller took his
belongings out of the truck, and as he was doing this, Pavelich struck Miller with a heavy
metal pipe and accused Miller of “spiking” his beer. Pavelich hit Miller with the metal pipe
“at least eight times.” Miller left, called 911, and was taken to a nearby hospital. Miller had
significant injuries, including fractured ribs, contusions, and a “chronic L1 compression
fracture.”
3
Pavelich was arrested at his home, and the State of Minnesota charged him with
second- and third-degree assault under Minnesota Statutes sections 609.222 and 609.223
(2018).
In the criminal case, 1 the district court ordered a psychological evaluation to
determine Pavelich’s competency to stand trial, his competency at the time of the offense,
and the need for civil commitment. See Minn. R. Crim. P. 20.01 (addressing a defendant’s
competency to participate in criminal proceedings), .02 (providing for the defense of
mental illness or cognitive impairment at the time of the offense) , .04 (allowing for
simultaneous examination for civil commitment). After receiving the psychologist’s
evaluation, the district court found Pavelich was not competent to stand trial for the
criminal charges. In later proceedings, the district court deemed Pavelich to be mentally ill
and dangerous and committed him to a state facility.
On March 3, 2021, Pavelich was found dead.
In August 2021, Miller served Pavelich’s estate with a personal-injury complaint
and filed the complaint nearly a year later. Miller asserted claims of assault and battery
arising from the August 2019 incident and sought damages for his physical injuries. The
estate filed an answer denying the allegations in the complaint and raising affirmative
defenses. Among other things, the estate asserted that Pavelich could not form the requisite
intent for assault or battery because he was mentally ill at the time of the incident. The

1 The civil complaint alleged facts about the criminal proceeding, including its outcome,
which the estate accepted as true for the purposes of summary judgment. Other than the
psychological evaluation, none of the criminal record was in the district court record for
this civil case.
4
estate also raised an affirmative defense that Pavelich was acting in self-defense when he
struck Miller.
In May 2023, the estate moved for summary judgment. It argued that Pavelich
lacked the mental capacity to form intent for the intentional torts alleged in the complaint.
The estate also contended that Pavelich acted in self-defense because, “due to the
stronghold of his delusions, he felt his life was imminently in danger at the hands of”
Miller. In support of both arguments, the estate filed the rule 20 evaluation completed in
the criminal case. Miller opposed the motion and argued that Pavelich’s intent was a
question of fact for the jury to resolve, that Pavelich possessed sufficient mental capacity
to intend civil assault and battery, and that self-defense “is not a legitimate defense to
assault and/or battery” under these facts. Miller did not submit any evidence in response to
the summary-judgment motion and relied on the rule 20 evaluation submitted by the estate.
The rule 20 evaluation was prepared by Dr. Bowerman, Ph.D., L.P., as an
independent forensic examiner. He determined that Pavelich suffered from delusions and
paranoia, including that he was the target of poisoning.
2 Dr. Bowerman diagnosed Pavelich
with post-traumatic stress disorder with delayed expression and secondary psychotic
feature as well as an unspecified neurocognitive disorder. Dr. Bowerman determined that
Pavelich believed Miller had intentionally spiked his drink or poisoned him and that
Pavelich “reacted out of a genuine fear for his life.” He concluded that, “at the time of

2 We are mindful of our obligation under Minn. R. Pub. Access to Recs. of Jud. Branch 4,
subd. 1(b)(2), to protect the confidentiality of nonpublic information and include in this
opinion only information that is presented in the briefs and other evidentiary materials in
the record. We have reviewed the entire record in making our decision.
5
committing the alleged criminal act,” Pavelich “was laboring under such a defect of reason
as not to know the nature of the act or that it was wrong.” Dr. Bowerman opined that the
assault on Miller was “a direct result of [Pavelich’s] delusional belief system which he
could not independently control due to defects in mental and cognitive health.”
In opposing summary judgment, Miller pointed out that the rule 20 evaluation also
stated that Pavelich told Dr. Bowerman that he would respond with violence when he
believed his life to be in danger but knew that doing so was wrong. Also, Dr. Bowerman
opined that Pavelich was mentally ill and dangerous to the public and reasoned that
Pavelich “deliberately assaulted” Miller and “engaged in an unprovoked yet intentional
assault” while experiencing delusions.
Following a hearing, the district court granted the estate’s summary-judgment
motion. The district court determined that there were no genuine issues of material fact
related to Pavelich’s intent to assault and batter Miller. The district court did not discuss or
decide the estate’s self-defense argument.
Miller now appeals.
DECISION
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. “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.” Leeco, Inc. v. Cornerstone Bank, 898 N.W.2d
653, 657 (Minn. App. 2017), rev. denied (Minn. Sept. 27, 2017). A court considering a
motion for summary judgment “must not weigh facts.” Senogles v. Carlson, 902 N.W.2d
6
38, 42 (Minn. 2017) (quotation omitted). An appellate court reviews a grant of summary
judgment de novo, viewing “the evidence in the light most favorable to the nonmoving
party and resolv[ing] all doubts and factual inferences against the moving part[y].”
Maethner v. Someplace Safe, Inc., 929 N.W.2d 868, 874 (Minn. 2019) (quotation omitted).
The district court’s application of law is also reviewed de novo. Montemayor v. Sebright
Prods., Inc., 898 N.W.2d 623, 628 (Minn. 2017).
The district court granted summary judgment for the estate based on its
determination that Miller could not show that Pavelich intentionally assaulted and battered
Miller. On appeal, Miller argues, first, that the district court erred in its legal conclusions
by relying on insurance caselaw about the intentional-act exclusion and should have relied
on the common law for assault and battery and its definition of intent. Second, Miller
contends that, based on the record, a genuine dispute of material fact remains for trial and
that the district court erred by weighing the evaluator’s rule 20 report.
3 The estate urges

3 On appeal, Miller’s brief to this court argues two other issues. First, he argues that “using
psychiatric evidence to determine intent is appropriate only in the very narrow context of
an intentional-act-exclusion insurance contract questions and is inappropriate to determine
intent in other contexts.” Second, in Miller’s reply brief, he specifically urges this court to
“bifurcate the inquiries into intent and capacity by allowing the jury to consider the factual
findings within the Bowerman report when evaluating intent and relegating the psychiatric
determination of incompetence to the question of capacity.” The estate contends that these
are new arguments on appeal, and we agree that they were not presented to or considered
by the district court.
Generally, we do not consider issues raised for the first time on appeal. Thiele v.
Stich, 425 N.W.2d 580, 582 (Minn. 1988). While Miller urges us to make an exception
here and for these issues, he does so in his reply brief. We generally decline to consider
matters raised for the first time in reply. George v. Est. of Baker, 724 N.W.2d 1, 7 (Minn.
2006). Thus, we decline to consider either of the two new issues that Miller raises for the
first time on appeal. Miller, however, may raise these issues on remand for consideration
by the district court.
7
this court to affirm the district court’s summary-judgment decision but argues that, if the
decision is overturned, the case should be remanded for the district court to consider the
estate’s self-defense claim. We consider each argument in turn.
A. The district court erred by relying on inapposite caselaw.
Miller challenges the district court’s legal analysis and argues that the district court
erred by relying on distinguishable caselaw and by failing to apply well-established
common law for assault and battery.
Under Minnesota law, “[b]attery is an intentional, unpermitted offensive contact
with another. Its two operative elements are intent and offensive contact.” Johnson v.
Morris, 453 N.W.2d 31, 40 (Minn. 1990) (citation omitted). Civil assault “requires an
unlawful threat to do bodily harm to another with present ability to effect that threat.”
Elwood v. County of Rice, 423 N.W.2d 671, 679 (Minn. 1988) (citing Dahlin v. Fraser, 288 N.W. 851, 852 (Minn. 1939)). To establish a civil-assault claim, the plaintiff must
show, among other things, that the assailant acted with the intent to cause apprehension or
fear of imminent harm. See Dahlin, 288 N.W. at 853 (“Intent may be inferred from all the
facts and circumstances, such as exhibitions of anger, threats, gestures and other
conduct.”); see also 4A Minnesota Practice, CIVJIG 60.20 (2014) (setting out elements of
civil assault); State v. Kelley, 734 N.W.2d 689, 695 (Minn. App. 2007), rev. denied (Minn.
Sept. 18, 2007) (“[J]ury instruction guides merely provide guidelines and are not
mandatory rules; jury instruction guides are instructive, but not precedential or binding on
this court.”). Thus, intent is a central element for both assault and battery. Dahlin,
288 N.W. at 852-53 (assault); Johnson, 453 N.W.2d at 40 (battery).
8
No Minnesota caselaw directly addresses how a person’s mental illness bears on
their civil liability for injuries arising from an intentional tort. Some legal authority
provides that a person with a mental illness may be liable for their torts, including assault
and battery. The Minnesota Supreme Court, in a related context, has relied on the
Restatement (Second) of Torts § 895J (Am. L. Inst. 1979). State Farm Fire & Cas. v.
Wicka, 474 N.W.2d 324, 329 (Minn. 1991) (citing section 895J, comment c, as authority
for reasoning that “it is axiomatic” that a mentally ill insured may be held liable for an
intentional tort if they “have been able to entertain the proscribed intent to cause bodily
injury and . . . have done so”); see Williamson v. Guentzel, 584 N.W.2d 20, 24-25 (Minn.
App. 1998) (recognizing that restatements of law are persuasive authority), rev. denied
(Minn. Nov. 24, 1998).
Section 895J of this restatement provides that “[o]ne who has deficient mental
capacity is not immune from tort liability solely for that reason.” Restatement (Second) of
Torts § 895J (Am. L. Inst. 1979). The rationale is that “where one of two innocent persons
must suffer a loss, it should be borne by the one who occasioned it.” W. Prosser & W. Page
Keeton, Prosser and Keeton on Torts § 135, at 1073 (5th ed. 1984). As a result, a person’s
mental condition may “be taken into account” because
[a person with a mental illness] may have an intent to invade
the interests of another , even though his reasons and motives
for forming that intention may be entirely irrational. Thus he
may be capable of having the intent to do harm to another that
is necessary for torts such as battery . . . . On the other hand his
mental condition may deprive him of the capacity to have the
necessary intent [for liability].
Restatement (Second) of Torts § 895J, cmt. c (Am. L. Inst. 1979) (emphasis added).
9
The restatement’s discussion of intent adheres to caselaw addressing other
intentional torts, although without reference to mental illness. In Victor v. Sell, Victor fell
from his roof and landed on dismantled radiator parts on the ground in his yard, sustaining
fractures and requiring surgery. 222 N.W.2d 337, 338 (Minn. 1974). Victor sued his
neighbor Sell on a theory of trespass, contending that Sell threw the radiator parts on
Victor’s property, which worsened his injuries when he fell. Id. at 338-39. The jury
determined that Sell did not commit trespass. Id. at 339.
On appeal, Victor argued, among other things, that the district court did not
sufficiently define “trespass.” Id. The supreme court affirmed the decision after
determining that the district court’s instructions were sufficient. Id. at 339-40. It noted that
the jury instructions defined “intent” or “intentionally” to mean that “the actor desires to
cause consequences of his act or that he believes that the consequences are substantially
certain to result from it.” Id. The supreme court recognized that this definition of intent was
taken directly from the Restatement (Second) of Torts, which provides, “The word ‘intent’
is used throughout the Restatement to denote that the actor desires to cause consequences
of his act, or that he believes that the consequences are substantially certain to result from
it.” Id. at 340 n.4 (quoting Restatement (Second) of Torts § 8A (Am. L. Inst. 1979)).
The district court here, however, relied on Wicka—without referring to section 895J
of the restatement —and reasoned that “a person excused from criminal liability due to
mental illness, within the meaning of the criminal law, lack[s] the cognitive ability to form
the intent to injure another.” And because assault and battery both include an element of
intent and the “only evidence” was Dr. Bowerman’s rule 20 report, the district court
10
concluded that “no reasonable juror could draw a conclusion that the decedent had the
necessary intent for assault or battery under Minnesota law.” We disagree.
Wicka’s analysis of intent turned on a context that is materially different from this
appeal. T he supreme court considered “whether an intentional act exclusion of a
homeowner’s liability policy applies to the conduct of an insured who, because of mental
illness, may lack the capacity to form the intent to injure.” 474 N.W.2d at 325. The supreme
court first noted that “an intentional act exclusion applies only where the insured acts with
the specific intent to cause bodily injury.” Id. at 329. It held that an insured ’s acts are
“unintentional” under the policy if the insured’s mental illness or defect prevented the m
from “know[ing] the nature or wrongfulness of an act” or deprived the insured “of the
ability to control [their] conduct.” Id. at 331.
Thus, Wicka involved the interpretation of an exclusion to an insurance contract, not
civil liability for an intentional tort. Exclusions in an insurance policy are strictly
interpreted against the insurer. Thommes v. Milwaukee Ins. Co., 641 N.W.2d 877, 883
(Minn. 2002). In Wicka, the supreme court expressly stated that its conclusion was “for the
purposes of applying an intentional act exclusion contained in a homeowner’s insurance
policy.” 474 N.W.2d at 331. Because Wicka used “unintentional” in a different context, its
holding does not apply to the issue on appeal.4

4 For similar reasons, we are not persuaded by other cases both parties cite that do not
involve civil intent or civil liability for torts. See, e.g., Profit v. HRT Holdings, 987 N.W.2d
575, 582 (Minn. 2023) (stating that Wicka ’s holding was not controlling in a
workers’-compensation action because cases “regarding intentional-act -exclusion
provisions in insurance policies are grounded in contract” while a workers’-compensation
case was “a creature of statute”); Silberstein v. Cordie, 474 N.W.2d 850, 854 (Minn. App.
11
We conclude that the district court erred in applying Wicka and concluding as a
matter of law that Pavelich lacked the intent to commit assault and battery against Miller
because of his mental illness. Victor’s reasoning, coupled with section 895J of the
restatement, persuades us that intent may be established for assault if the person intended
to threaten harm to another while having the ability to effect that threat, Dahlin, 288 N.W.
at 852-53, and for battery if the person intended to cause bodily injury and did so, Johnson,
453 N.W.2d at 40. Given that summary judgment can be affirmed on any ground, we next
address whether there is a genuine issue of material fact regarding intent under the legal
standard articulated here.
B. A genuine issue of material fact about Pavelich’s intent at the time of the
assault and battery precludes summary judgment.
Miller contends that the district court erred in granting summary judgment because
a genuine issue of material fact exists as to Pavelich’s intent to harm him. Miller asserts
that the district court improperly weighed the evidence in the rule 20 report, a task normally
reserved for the jury, when granting the summary-judgment motion. In response, the estate
argues that Miller presented no evidence to establish a genuine issue of material fact on
intent.

1991) (discussing issues of intent and mental capacity and determining that the exception
to the three-year wrongful-death statute of limitations for intentional acts of murder does
not bar a claim when a defendant has been found not guilty of murder by reason of mental
illness); see also Silberstein v. Cordie, No. C7-91-279, 1992 WL 31362, at *2 (Minn. App.
Feb. 25, 1992) (upon remand after Wicka, recognizing that the term “intent” had “different
connotations in Wicka and Silberstein”), rev. denied (Minn. May 15, 1992).
12
A “genuine issue” of material fact for trial “must be established by substantial
evidence.” Murphy v. Country House, Inc., 240 N.W.2d 507, 512 (Minn. 1976). A party
seeking summary judgment bears the burden of making a prima facie showing that there is
no genuine issue of material fact. Minn. R. Civ. P. 56.03(a) (stating that the party claiming
no genuine fact issue “must support the assertion” with admissible evidence); Citizens State
Bank Norwood Young Am. v. Brown, 849 N.W.2d 55, 62 (Minn. 2014). When the moving
party makes that showing, “the burden of esta blishing that the facts raise a genuine issue
falls to the opposing party.” Citizens State Bank, 849 N.W.2d at 62 (citation omitted). To
meet its burden, the nonmoving party may not “rely upon speculation.” Limberg v.
Mitchell, 834 N.W.2d 211, 219 (Minn. App. 2013) (quotation omitted); see also 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.”).
Rather, the nonmoving party must produce competent, admissible evidence that creates a
genuine issue for trial. Twin Cities Metro-Certified Dev. Co. v. Stewart Title Guar. Co.,
868 N.W.2d 713, 720 (Minn. App. 2015).
As the moving party, the estate needed to make a prima facie showing that there
was no genuine issue of material fact. To that end, the estate presented evidence in the form
of the rule 20 report that Pavelich was excused from criminal liability because of mental
illness. As the district court noted, this was the “only evidence in the record.” As to
Pavelich’s competency at the time of the incident, Dr. Bowerman concluded that Pavelich
was “laboring under such a defect of reason due to mental illness and cognitive impairment
as to not know the nature of [his] act or that it was wrong.”
13
Miller does not dispute the conclusion in the rule 20 report. But he notes that the
report, when viewed in the light most favorable to him, includes evidence that raises
genuine issues of material fact precluding summary judgment on his intentional-tort
claims. For instance, Miller highlights portions of the rule 20 report, some of which quote
statements by Pavelich, that (1) Pavelich understood that assaulting another person was
immoral and illegal, (2) Pavelich “deliberately assaulted” Miller with a lethal weapon,
(3) Pavelich engaged in an “unprovoked yet intentional assault,” (4) Pavelich’s actions
escalated from property damage to physical harm of another person, and (5) Pavelich was
capable of “actively and deliberately physically harm[ing]” someone if he felt fearful
enough.
5 The district court acknowledged that Miller had identified portions of the report
containing statements by Pavelich that “indicat[ed] his desire to harm his neighbors.” Even
so, the district court determined that these statements were “not sufficient to create a
genuine dispute regarding the elements of intent for assault or battery.” We do not agree.
The rule 20 report, when viewed in the light most favorable to Miller, creates a
genuine dispute of fact. The Restatement (Second) of Torts is again instructive on this
point. It offers two illustrations showing how different kinds of mental illness or capacity
might lead to different legal results:
1. A, who is [mentally ill], believes that he is
Napoleon Bonaparte, and that B, his nurse, who confines him
in his room, is an agent of the Duke of Wellington, who is
endeavoring to prevent his arrival on the field of Waterloo in
time to win the battle. Seeking to escape, he breaks off the leg

5 These statements come from Miller’s brief and do not rely on nonpublic information. See
Minn. R. Pub. Access to Recs. of Jud. Branch 4, subd. 1(b)(2).
14
of a chair, attacks B with it and fractures her skull. A is subject
to liability to B for battery.
2. A, suffering from epilepsy, goes into a cataleptic
state in which he is unconscious of his acts and unable to
control them. In this state he strikes B, who is bending over
him. A is not liable to B.
Restatement (Second) of Torts § 895J, cmt. c (Am. L. Inst. 1979).
There is evidence that Pavelich intended to hit—and, indeed, to harm—Miller.
Pavelich struck Miller with a heavy metal pipe eight times because he believed Miller had
poisoned his drink. This situation is analogous to the first example in comment c,
suggesting that a jury could find that Pavelich had the required intent for assault and
battery.
Wicka also helps explain this point. The district court granted summary judgment
for the insurer after determining that the intentional-act exclusion applied when, “because
of mental illness, the insured is unable to control his or her conduct in accordance with
reason.” Wicka, 474 N.W.2d at 326. We reversed and remanded for trial because a genuine
issue of material fact existed based on psychiatric testimony. Id. at 327. The supreme court
affirmed as modified, revising our interpretation of the intentional-act exclusion, but
agreeing that a genuine issue of material fact existed for trial based on the psychiatric
testimony. Id. at 331, 333.
Here, too, the psychiatric evidence does not support entering judgment as a matter
of law for the estate. See Warren v. Dinter, 926 N.W.2d 370, 375 (Minn. 2019) (stating
that “summary judgment is inappropriate when reasonable persons might draw different
15
conclusions from the evidence presented” (quotation omitted)). Thus, we reverse and
remand for further proceedings.
C. The district court should consider the estate’s self- defense claim on
remand.
The estate raised an affirmative defense of self-defense in its answer and, in its
summary-judgment memorandum, argued that Miller’s assault and battery claims failed
because Pavelich was acting in self- defense when he struck Miller. Because the district
court granted summary judgment in the estate’s favor on the ground that no reasonable
juror could conclude that Pavelich intended to assault or batter Miller, it did not consider
the merits of this alternative argument. The estate does not argue for affirmance because
Pavelich acted in self- defense. On remand, then, the district court should address the
estate’s self-defense argument.
Reversed and remanded.