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Stringer v. Minnesota Vikings Football Club9/21/2004
verted record establishes that respondents were cognizant of potential adverse consequences arising from Stringer's condition and took some actions to care for him. Respondents' actions may reflect poor judgment or lack of reasonable care, but there is no basis to conclude that respondents disregarded the risk to Stringer altogether in a manner "equivalent to a willful and intentional wrong." Chambers, 589 N.W.2d at 478. Because the evidence, viewed most favorably to appellants, cannot support a conclusion of gross negligence as a matter of law, the district court properly granted summary judgment. Cf. Terveer, 365 N.W.2d at 281.
In challenging the district court's conclusion that the record does not support a determination of gross negligence, appellants rely on their experts' affidavits, which uniformly conclude that respondents failed to provide even scant care for Stringer. Conclusory statements in an expert affidavit do not necessarily preclude summary judgment, Potter v. Pohlad, 560 N.W.2d 389, 395 (Minn. App. 1997), review denied (Minn. June 11, 1997), and will not remedy a legally deficient claim, In re Trusts A & B of Divine, 672 N.W.2d 912, 918 (Minn. App. 2004). Even if appellants' experts correctly determined that respondents' actions led to Stringer's death, a contrary outcome is not compelled under the applicable standard for gross negligence.
III.
Appellants also challenge the district court's award of $34,981 to respondents for expert fees. Prior to assessing costs and disbursements, the district court must hold an oral hearing "so a full record is available for review." Stinson v. Clark Equip. Co., 473 N.W.2d 333, 338 (Minn. App. 1991), review denied (Minn. Sept. 13, 1991). Here, the district court conducted a hearing on costs and disbursements, but appellants failed to provide a transcript of that hearing on appeal. Without a record, we must assume that the findings of the district court would be supported by what occurred at the hearing, and we decline to consider appellants' challenge to this award. See Noltimier v. Noltimier, 280 Minn. 28, 29, 157 N.W.2d 530, 531 (1968) (allowing dismissal of appeal based upon incomplete record).
DECISION
Respondents Osterman and Zamberletti undertook direct acts toward Stringer that were not pursuant to their employer's non-delegable duty to provide a safe workplace; conversely, respondent Barta's actions were pursuant to this duty. Accordingly, Osterman and Zamberletti had a personal duty to Stringer, but Barta did not. All respondents nevertheless exercised more than a scant level of care that did not entirely disregard the particularly adverse consequences arising from the symptoms of injury Stringer exhibited. Because the facts viewed in the light most favorable to appellants do not establish a genuine issue of material fact as to whether respondents were grossly negligent, the district court did not err by entering summary judgment in favor of respondents.
Affirmed.
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