Ackerman v. American Family Mutual Insurance Co.

LESLIE, Judge

(concurring in part and dissenting in part).

I do not dispute either the constitutionality or applicability of Minn.Stat. § 176.061, subd. 5(c) (1986) to this case. I am concerned with the summary judgment disposition of the gross negligence issue, and must therefore respectfully dissent in part.

It is the law in Minnesota that “it is only in the clearest of cases that the question of negligence becomes one of law.” Martinco v. Hastings, 265 Minn. 490, 501, 122 N.W.2d 631, 640 (1963).

In each case, except when reasonable minds may not differ, the degree of care required, and whether it was exercised, are questions for the jury.

Id. at 500, 122 N.W.2d at 640. See Van Tassel v. Hillerns, 311 Minn. 252, 256-57, 248 N.W.2d 313, 316 (1976); Brittain v. City of Minneapolis, 250 Minn. 376, 390, 84 N.W.2d 646, 655 (1957).

Martinco involved a motor vehicle accident and the application of a certain standard of negligence, as does this case. Although the standard here may be gross negligence, and though appellant appears to concede the accident arose in the course and scope of employment, based on the facts in the record and the reasonable inferences therefrom, I am convinced that ultimate resolution of the question of gross negligence is best left to the collective wisdom of the jury.