Bryson v. Pillsbury Co.

573 N.W.2d 718, 1998 Minn. App. LEXIS 117, 1998 WL 37460
CourtCourt of Appeals of Minnesota
DecidedFebruary 3, 1998
DocketC4-97-1564
StatusPublished
Cited by15 cases

This text of 573 N.W.2d 718 (Bryson v. Pillsbury Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bryson v. Pillsbury Co., 573 N.W.2d 718, 1998 Minn. App. LEXIS 117, 1998 WL 37460 (Mich. Ct. App. 1998).

Opinions

OPINION

KALITOWSKI, Judge.

Appellant Nora Bryson challenges the district court’s grant of summary judgment in favor of respondents Pillsbury Company, et al., arguing the district court erred because: (1) Bryson submitted evidence that raised a genuine issue of material fact as to whether she suffered a present injury; and (2) Bry-son presented sufficient evidence to establish her claim for damages based on her alleged increased risk of developing cancer.

FACTS

Appellant Nora Bryson boarded her horse at the farm of an individual who, like Bryson, was an employee of respondent Finsbury’s subsidiary, Green Giant (company). On July 23, 1990, Bryson discovered that her horse had fallen into a pit filled with water from a storm. The pit, which was 20 feet by 20 feet with a 17-foot depth, had allegedly been used by the company to dispose of waste. Bryson entered the pit in an attempt to rescue the horse and, while ,in the pit, observed what she believed to be Captan-treated seeds floating in the water. Captan is a chemical treatment for seed that protects it from insects in the soil until germination.

Bryson and others succeeded in getting the horse out of the water. Later that day, Bryson broke out in a rash that covered her body. She presented evidence that she has subsequently developed additional rashes. Bryson, through her expert from the University of Minnesota, presented evidence that she suffered extensive chromosome breakage as a result of exposure to Captan and that, because of the chromosome breakage, she has an increased risk of developing cancer. The company made a motion for summary judgment arguing: (1) Bryson assumed the risk of harm by not leaving the pit when she saw the Captan-treated seeds; and (2) Bry-son’s alleged damages were too speculative. The district court denied the company’s summary judgment motion on assumption of risk, but granted summary judgment in favor of the company stating that Bryson suffered no present injury and concluding ■ that her claimed damages for future harm were too speculative as a matter of law.

ISSUES

1. Did Bryson present sufficient evidence to support her claim of a present injury?

2. Did Bryson present sufficient evidence to support her claim for damages based on her alleged increased risk of developing cancer?

ANALYSIS

As an initial matter, the company moved to strike Bryson’s reply brief arguing the brief raised new issues and theories on appeal. After a review of the parties’ arguments, we conclude that Bryson’s reply brief is proper and deny the company’s motion.

On appeal from a district court’s grant of summary judgment, this court determines: (1) whether any genuine issues of material fact exist; and (2) whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). In making this determination, we “view the evidence in the light most favorable to the party against whom judgment was granted.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993).

I.

Bryson contends the district court erred in granting summary judgment, claiming she presented sufficient evidence to raise a genuine fact issue as to whether her chromosome damage constituted a present injury. The company asserts that because Bryson’s claimed chromosome damage is asymptomatic, it does not constitute a legally compensa-ble present injury. In .a memorandum supporting its order for summary judgment, the district court, without reference to Bryson’s allegations regarding present damages, stated: “In this matter there are no present injuries * * We conclude the district court erred by granting summary judgment [721]*721where there is a genuine issue of disputed material fact regarding whether there was a present injury.

In Werlein v. United States, 746 F.Supp. 887, 901 (D.Minn.1990), vacated in part on other grounds, 793 F.Supp. 898 (D.Minn.1992), the United States District Court addressed a ease in which the plaintiffs claimed that exposure to contaminated air and drinking water resulted in chromosome damage. The defendants argued that the plaintiffs did not suffer a present injury. Id. In denying the defendants’ summary judgment motion, the court in Werlein stated that it could not

rule as a matter of law that plaintiffs’ alleged injuries are not “real” simply because they are subeellular. The effect of volatile organic compounds on the human body is a subtle, complex matter. It is for the trier of fact, aided by expert testimony, to determine whether plaintiffs have suffered present harm.

Id.

The asymptomatic, subeellular damages claimed in Werlein are similar to the injury claimed by Bryson. Here, Bryson’s expert witness presented evidence that Bryson’s exposure to Captan resulted in chromosome breakage, and that such breakage is a “real and present physical and biologic injury.” This testimony was disputed by the company, whose expert testified that

an elevated number of chromosome aberrations are not considered an “injury” per se because they do not in and of themselves result in any physical impairment.

Following the reasoning of Werlein, we conclude the trier of fact should resolve this fact dispute.

Further, like the plaintiffs in Werlein, Bryson claims emotional distress damages and medical monitoring expenses because of her alleged chromosome damage. Id. at 901, 905. The court in Werlein determined that the existence and extent of these alleged damages also presented fact questions for the jury. Id. at 905-06. Again, following Werlein, we conclude that because there are genuine fact issues concerning the existence of Bryson’s present injuries and damages, summary judgment on this claim is inappropriate.

II.

Bryson next argues that because she has offered expert evidence that she has a present injury, she need only present evidence that is “fair comment” on the medical implications of chromosome breakage to establish future damages resulting from her increased risk of cancer. Alternatively, Bry-son argues that she has presented sufficient evidence to a reasonable medical certainty that entitles her to compensation for future damages as a result of her increased risk of cancer. The district court concluded that because Bryson can neither prove that her increased risk of future harm is more likely than not to occur, nor quantify her increased risk of developing cancer, her claimed damages for increased risk of future harm are too speculative as a matter of law. We agree.

A plaintiff must prove every element of a claim by a preponderance of the evidence. Carpenter v. Nelson, 257 Minn. 424, 427, 101 N.W.2d 918, 921 (1960). For Bryson to establish her claim for future damages, she must show: (1) that the future harm is more likely than not to occur; and (2) that her future damages are not too speculative. Pietrzak v. Eggen, 295 N.W.2d 504, 507 (Minn.1980). Bryson failed to present evidence on both issues.

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Bryson v. Pillsbury Co.
573 N.W.2d 718 (Court of Appeals of Minnesota, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
573 N.W.2d 718, 1998 Minn. App. LEXIS 117, 1998 WL 37460, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bryson-v-pillsbury-co-minnctapp-1998.