This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C4-99-1472

Patricia Harder,
Appellant,

vs.

City of Proctor,
Respondent,

Eric Madson,
Respondent,

Peggy Peterson, individually and
d/b/a Casino Pizza,
Respondent.

Filed January 25, 2000
Affirmed
Klaphake, Judge

St. Louis County District Court
File No. C9-99-600070

Thomas M. Skare, Newby, Lingren & Skare, Ltd., 1219 14th St., P.O. Box 760, Cloquet, MN 55720 (for appellant)

John E. Hennen, League of Minnesota Cities, 145 University Ave. W., St. Paul, MN 55103-2044 (for respondent city)

Eric D. Hylden, Steven L. Reyelts, Halverson Watters Downs Reyelts & Bateman, Ltd., 700 Providence Building, Duluth, MN 55802 (for respondent Madson)

Gordon H. Hansmeier, Mark E. Arneson, Rajkowski Hansmeier, Ltd., 11 Seventh Ave. N., P.O. Box 1433, St. Cloud, MN 56302 (for respondent Peterson)

Considered and decided by Peterson, Presiding Judge, Randall, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

Patricia Harder challenges the grant of summary judgment to respondents City of Proctor, building owner Eric Madson, and lessee Peggy Peterson. The court determined that the city is immune from liability and that Madson and Peterson were not liable for Harderís fall on an icy sidewalk outside of Petersonís place of business. Because the district court did not err in applying the law of immunities and because Madson and Peterson did not owe Harder a special duty of care, we affirm.

D E C I S I O N

I. Immunity

"Summary judgment is appropriate when a governmental entity establishes that its actions are immune from liability." In re Alexandria Accident of Feb. 8, 1994, 561 N.W.2d 543, 546 (Minn. App. 1997) (citation omitted), review denied (Minn. June 26, 1996). "Whether governmental action is protected by immunity is a question of law." Id. (citation omitted). As with any appeal from summary judgment, this court must determine whether there are genuine issues of material fact and whether the district court erred in applying the law. Watson v. Metropolitan Transit Commín, 553 N.W.2d 406, 411 (Minn. 1996).

A municipality is immune from suit for

[a]ny claim based on snow or ice conditions on any highway or public sidewalk that does not abut a publicly owned building or publicly owned parking lot, except when the condition is affirmatively caused by the negligent acts of the municipality.

Minn. Stat. ß 466.03, subd. 4 (1998).

The basic premise of the snow and ice exception is that, absent affirmative acts of negligence by a municipality, it will not be held liable for "mere slipperiness resulting from the natural accumulation * * * of ice and snow, however dangerous." In re Heirs of Jones, 419 N.W.2d 839, 841 (Minn. App. 1988) (quotation omitted). Nor is a municipality liable for injuries from a fall on

newly formed glare ice although a municipality is liable if it negligently permits an accumulation of ice and snow to remain on a sidewalk for such a period of time that slippery and dangerous ridges, hummocks, depressions, and other irregularities develop there.

Doyle v. City of Roseville, 524 N.W.2d 461, 463 (Minn. 1994) (citations omitted). Here, the ice was described as glare ice, certainly not ridged or hummocked.

Municipalities are likewise immune for the natural consequences of snow removal when done "pursuant to established snow-removal policies and [where] the claimants have shown no willful acts or malfeasance." Alexandria Accident, 561 N.W.2d at 549 (citation omitted). No evidence was produced to show that the city acted contrary to its policy or in a careless manner. Although the city does not have a written snow clearance policy, this merely affects the difficulty of proving that a policy exists. See Bloss v. University of Minn. Bd. of Regents, 590 N.W.2d 661, 667 (Minn. App. 1999). The record supports that the city has the following snow policy: it clears sidewalks only after streets are cleared, uses a front-end loader because of financial considerations, and doesnít completely clear the sidewalk to avoid damage to buildings and awnings.

The city has established its immunity from suit. Harder has failed to show the patch of glare ice on the sidewalk was anything more than the natural consequence of an accumulation of ice and snow and its subsequent melting and freezing, or that the city acted willfully or with malfeasance in performing snow removal. The district court did not err in concluding that the city was immune from liability.

II. Negligence

An abutting property owner or occupant is not liable for the defective condition of a sidewalk, including ice and snow, unless they affirmatively create a defective or dangerous condition or negligently maintain a structure erected for their benefit. Sternitzke v. Donahueís Jewelers, 249 Minn. 514, 519-20, 83 N.W.2d 96, 100 (1957); see also Strong v. Richfield State Ag., Inc., 460 N.W.2d 106, 108 (Minn. App. 1990) (abutting property owner liable for sidewalk hazard only when conditions at least partially caused by property owner; excludes wet leaves); Olson v. City of St. James, 380 N.W.2d 555, 560 (Minn. App. 1986). No evidence here establishes that the property owner or lessee created a defective or dangerous condition.

Harder argues that the city ordinance requiring abutting owners to clear and maintain sidewalks creates a liability on the part of the owners. This issue has been squarely addressed by the court in Sternitzke, which concluded that such an ordinance creates a duty to the municipality, and not to individual members of the public. Sternitzke, 249 Minn. at 522, 83 N.W.2d at 101.

Harder also argues that by continuing to clear the sidewalk, Peterson and Madson voluntarily assumed a duty that otherwise would not exist, and breached this duty by failing to keep the sidewalk clear.

Generally, an affirmative duty to act arises only when a special relationship exists between parties. Harper v. Herman, 499 N.W.2d 472, 474 (Minn. 1993). A voluntary assumption of this duty can occur when a person undertakes an action, although under no legal duty to do so, becoming subject to the duty to act with care. Isler v. Burman, 305 Minn. 288, 295, 232 N.W.2d 818, 821-22 (1975) (church, which undertook inspection of land and assured snowmobile party it was safe, held to have voluntarily assumed duty of care of landowner); Thelen v. Spilman, 251 Minn. 89, 97, 86 N.W.2d 700, 706 (1957) (driver, who by motioning assured plaintiffs that it was safe to pass, could be liable if he failed to exercise reasonable care).

However, an assumption of duty occurs only when the conduct "leads others to rely on such assumption of duty and to refrain from taking other and more direct action to protect themselves." Williams v. Harris, 518 N.W.2d 864, 868 (Minn. App. 1994) (quotation omitted), review denied (Minn. Sept. 28, 1994). A distinction is made between a "special" duty and a "public" duty, both as applied to municipalities and other tortfeasors. Cracraft v. City of St. Louis Park, 279 N.W.2d 801, 806 (Minn. 1979). In order to create a special duty, one must show, among other things, that the injured party was relying on specific, rather than general, actions or representations, and that a duty of care created by ordinance or statute is clearly for the protection of a particular class of person, rather than the public as a whole. Id. at 807.

Petersonís and Madsonís act of clearing snow does not amount to a voluntary assumption of duty toward Harder. If they cleared snow in accordance with the ordinance, this is a duty owed to the city rather than to individual members of the public. See Sternitzke, 249 Minn. at 522, 83 N.W.2d at 101. The district court did not err in concluding that Peterson and Madson owed no duty to Harder.

Affirmed.