Barbie v. Minko Construction, Inc.
v.
Minko Construction, Inc.
and Comstock Construction, Inc., Defendants and Appellees
Judge Steven E. McCullough
| Appellant: | Kennelly & O'Keeffe, Ltd. | |
| Appellee: | Pearson Christensen & Clapp, PLLP | |
| Appellee: | Pearce & Durick |
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I. Did the District Court err in determining as a matter of law that Comstock and Minko cannot be liable to Barbie in this negligence action when the Court found that Barbie is unable to prove all of the elements of negligence, despite lay witness testimony to the contrary?
II. Did the District Court err in determining that there is no genuine issue of material fact as to defeat Summary Judgment as to Barbie's claims against Comstock and Minko on Barbie's claims based in the doctrine of res ipsa loquitur?
Appellee's Statement of the Issues:
Comstock Construction, Inc. ("Comstock") performed construction work at Fargo North High School. Jody Barbie ("Barbie") alleges she was injured when a removable door post fell onto her. Barbie speculates that Comstock, or others, improperly replaced the post. Barbie also speculates Comstock exclusively controlled the post. But she fails to offer competent admissible evidence of negligence. Did the district court properly grant Comstock's motion for summary judgment?
Appellee's Statement of the Issues:
I.Whether the District Court abused its discretion in holding that the lay opinions of Dahl and Semanko that construction workers were responsible for failing to secure the mullion bar that injured Barbie were inadmissible because they were speculative and therefore could not be used by Barbie to create a disputed issue of material fact to defeat summary judgment?
II.Assuming the District Court did not abuse its discretion in excluding the lay opinion testimony of Dahl and Semanko, whether the District Court erred as a matter of law by failing to consider other circumstantial evidence and granting summary judgment in favor of Minko when this evidence could not lead a jury to reasonably infer that it was Minko who failed to replace the mullion bar correctly?
III.Whether the District Court erred as a matter of law in holding that Barbie could not rely on the doctrine of res ipsa loquitur to create a rebuttable presumption that Minko was negligent since Barbie failed to present any evidence that Minko had exclusive control of the mullion bar that injured her, an essential element of the doctrine of res ipsa loquitur?
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