Patterson v. Wu Family Corp.

Decision Date15 June 1999
Docket NumberNo. C0-98-1961,C0-98-1961
Citation594 N.W.2d 540
PartiesArthur PATTERSON, Appellant, v. WU FAMILY CORPORATION, d/b/a Nankin Cafe, Respondent, John Doe, Respondent.
CourtMinnesota Court of Appeals

Syllabus by the Court

1. When a party asserts the defense of ineffective service of the summons and complaint in a timely amended answer and continues to assert the defense consistently thereafter, the party does not waive the defense by participating in the action.

2. Summary judgment against a plaintiff on claims for negligent and intentional infliction of emotional distress is proper when the plaintiff fails to present sufficient evidence to establish a causal connection between defendant's conduct and plaintiff's emotional distress.

3. When no objection to an alleged error is raised before the district court, the alleged error cannot be considered on appeal.

4. Summary judgment on a claim for negligent supervision is proper when the plaintiff fails to present sufficient evidence to prove that an employee's wrongful conduct was foreseeable to his employer.

Stephen C. Fiebiger, Stephen C. Fiebiger & Associates, Chartered, Minneapolis, for appellant.

Sally J. Ferguson, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Minneapolis; and Katherine L. MacKinnon, St. Louis Park, for respondents.

Considered and decided by HALBROOKS, Presiding Judge, PETERSON, Judge, and FOLEY, Judge. *

OPINION

PETERSON, Judge

Appellant Arthur Patterson brought this action against respondent Wu Family Corporation, d/b/a Nankin Cafe, and respondent Henry Price, a bouncer for the Nankin, following an incident in which Price allegedly assaulted, battered, and discriminated against Patterson when Patterson failed to produce identification after being carded by Price. Patterson alleged the following causes of action: (1) violating the Minnesota Human Rights Act (MHRA) against the Nankin; (2) aiding and abetting the Nankin's violation of the MHRA against Price; (3) assault and battery against both respondents; (4) intentional and negligent infliction of emotional distress against both respondents; and (5) negligent supervision against the Nankin.

On appeal from a summary judgment in favor of respondents, Patterson argues that the district court erred in (1) granting summary judgment in favor of Price on the assault and battery claims based on ineffective service of the summons and complaint and (2) concluding that Patterson presented insufficient evidence to prove the essential elements of his claims for negligent and intentional infliction of emotional distress and negligent supervision. Patterson also argues that the district court erred in determining that Patterson's remaining claims against the Nankin were subject to a bankruptcy stay and, therefore, not properly before the district court. We affirm.

FACTS

Facts underlying merits

Patterson, a 39-year-old African American male, and three friends went to the Nankin for drinks. Price cleared their table and told them that they would have to get their own drinks from the bar because there was not a waiter or waitress in the area. Price did not request identification from Patterson at that time.

One of Patterson's friends brought drinks, including an alcoholic beverage for Patterson, to the table. Later, Price asked Patterson for identification. Patterson said that he did not have identification, and Price told Patterson that he had to leave. Patterson testified that he agreed to leave and that, as he was walking out the door, Price grabbed his arm, twisted it behind his back, and pushed him out of the Nankin. Patterson testified that he feared harm from Price because Price was very aggressive.

Patterson testified that following the incident at the Nankin, he suffered from muscle strain in his arm, neck, and back. Sometime after the incident at the Nankin, Patterson developed high blood pressure. His doctors were unable to determine the cause of his high blood pressure. Patterson submitted medical records showing that following the incident at the Nankin, he complained to medical personnel that he suffered from dizziness, sweating, and headaches. Patterson claims that as a result of the incident at the Nankin, he developed a phobia about being in public places. Patterson did not seek any psychological treatment or counseling for his phobia.

Facts underlying ineffective service defense

Because Patterson did not know the bouncer's identity, he initially brought this action against the Nankin and John Doe. In early August 1997, in unexecuted answers to interrogatories, the Nankin identified the bouncer as Price and listed his address as 7001 Valley View Road, Edina, MN. On August 21, 1997, Patterson attempted to serve the summons and complaint on Price by leaving a copy of the documents with an unidentified male at the Valley View Road address provided by the Nankin. On August 28, 1997, Patterson granted Price an extension of time to answer the complaint until September 16, 1997. Price's answer did not raise the defense of insufficient service of process. On October 2, 1997, Price served on Patterson an amended answer raising the defense of insufficient service of process.

Price testified in a deposition taken November 7, 1997, that he had lived at 6053 Dupont Avenue South, Minneapolis, MN, since August 1996. His parents lived at the address where Patterson attempted to serve Price with the summons and complaint. Price testified that he obtained a copy of the complaint when he found it on his parents' driveway. He testified that he had read the complaint before the deposition. At the deposition, Patterson's attorney gave Price a copy of the summons and complaint, which was a deposition exhibit, to examine for the purpose of determining whether Price had previously seen the documents. The record does not indicate that Patterson's attorney gave Price a copy of the summons and complaint to keep. At the deposition, Price answered questions about his job as a bouncer for the Nankin and the incident with Patterson. Price did not require a subpoena but rather appeared voluntarily for the deposition, and he was represented by two attorneys.

In November 1997 and January 1998, Price was represented by counsel at witness depositions. In early 1998, Price and the Nankin filed a motion for partial summary judgment on Patterson's claims for aiding and abetting violations of the MHRA and intentional and negligent infliction of emotional distress. At the hearing on the motion, Price raised the ineffective service defense. On February 13, 1998, the district court filed an order granting respondents' motion for partial summary judgment. In a memorandum, the district court explained that it dismissed the claim against Price for aiding and abetting violations of the MHRA because it was time-barred and the claims for intentional and negligent infliction of emotional distress because Patterson failed to present sufficient evidence to prove the elements of those claims. The district court did not address Price's ineffective service defense in either its order or memorandum.

On March 2, 1998, Patterson attended and participated in court-ordered arbitration. On March 6, 1998, the two-year statute of limitations expired for Patterson's assault and battery claims against Price. After the district court placed the case on the trial calendar in April 1998, Price's attorney took the depositions of three witnesses. On April 20, 1998, Price filed a motion to dismiss the assault and battery claims on the ground that the summons and complaint had not been properly served on him. The district court granted Price's motion.

I S S U E S
I. Did the district court err in dismissing the assault and battery claims against Price for ineffective service of process?

A. Did the district court err in determining that service was ineffective?

B. Did the district court err in determining that Price had not waived the ineffective service defense?

C. Should Price be estopped from asserting the ineffective service defense?

D. Did the district court err in granting the motion when Price did not file the motion until after the deadline for dispositive motions?

II. Did the district court err in concluding that Patterson failed to present sufficient evidence to withstand summary judgment on his claims for intentional and negligent infliction of emotional distress?

III. Is the issue of whether the district court erred in concluding that Patterson's claims against the Nankin for violating the MHRA and for assault and battery were subject to the bankruptcy stay properly before this court?

IV. Did the district court err in granting summary judgment on the negligent supervision claim against the Nankin?

ANALYSIS

On appeal from a summary judgment, this court must review the record to determine whether any genuine issues of material fact exist and whether the district court erred in applying the law. In re Estate of Palmen, 588 N.W.2d 493, 495 (Minn.1999). We must view the evidence in the light most favorable to the nonmoving party. Id. The nonmoving party, however,

cannot rely on the pleadings alone to defeat a summary judgment motion but instead must produce specific facts which establish the existence of a genuine issue for trial.

Krogness v. Best Buy Co., Inc., 524 N.W.2d 282, 285 (Minn.App.1994), review denied (Minn. Jan. 25, 1995).

[S]ummary judgment on a claim is mandatory against a party who fails to establish an essential element of that claim, if that party has the burden of proof, because this failure renders all other facts immaterial.

Lloyd v. In Home Health, Inc., 523 N.W.2d 2, 3 (Minn.App.1994).

I.

A.

Minn. R. Civ. P. 4.03 provides that a summons shall be served

[u]pon an individual by delivering a copy to the individual personally or by leaving a copy at the individual's usual place of abode with some person of suitable age and discretion then residing therein.

"Service of process in a manner not...

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