This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
IN COURT OF APPEALS
County of Anoka,
State of Minnesota
Department of Human Services,
Anoka County District Court
File No. C8984036
Cortlen G. Cloutier, Elizabeth A. Cloutier, Cloutier & Cloutier, LLP, Suite 250, 608 Second Avenue South, Minneapolis, MN 55402 (for appellant)
Robert M.A. Johnson, Anoka County Attorney, M. Katherine Doty, Assistant County Attorney, Seventh Floor Anoka County Government Center, 2100 Third Avenue, Anoka, MN 55303 (for respondent County of Anoka)
Mike Hatch, Attorney General, P. Kenneth Kohnstamm, Assistant Attorney General, Suite 1100 445 Minnesota Street, St. Paul, MN 55101-2128 (for respondent State of Minnesota)
Considered and decided by Crippen, Presiding Judge, Schumacher, Judge, and, Klaphake, Judge.
Appellant disputes the trial court’s summary judgment that there is no merit in his slip-and-fall case as a matter of law. He also disputes the court’s dismissal of his attempt to name the State of Minnesota, which owned the premises, as a defendant in the case. There is no error in the trial court’s judgments for either defendant.
Appellant was injured when he slipped and fell in February 1993 on stairs outside an Anoka County corrections building. In 1998, appellant initiated a lawsuit against respondent Anoka County, claiming the county was negligent in its treatment of snow and ice outside the building. Approximately eight months later, in October 1998, appellant served an amended complaint in an attempt to add the respondent State of Minnesota as a defendant in the case.
1. Anoka County
In reviewing a summary judgment, this court examines the record to determine “whether there are any genuine issues of material fact to be determined” and whether the trial court “erred in its application of the law.” O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn. 1996) (citation omitted). We must view the facts in the light most favorable to the party against whom summary judgment was granted. Id. To successfully oppose summary judgment, the nonmoving party must “do more than rely on ‘unverified or conclusionary allegations’ in the pleadings or postulate evidence which might be produced at trial.” W.J.L. v. Bugge, 573 N.W.2d 677, 680 (Minn. 1998) (citation omitted). Rather, “the nonmoving party must present specific facts which give rise to a genuine issue of material fact for trial.” Id.
Respondent Anoka County was entitled to summary judgment as a matter of law if the record reflects a “complete lack of proof on an essential element” of appellant’s claim. Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995). The essential elements of a negligence claim are the existence of a duty of care; a breach of this duty; an injury; and breach of the duty was the proximate cause of the injury. Lubbers, 539 N.W.2d at 401.
If charged with knowledge of the circumstances, the county has a duty to warn and protect users of streets and sidewalks from accumulations of snow and ice that form “slippery and dangerous ridges, hummocks, depressions, and other irregularities,” thus causing an unusual risk of falling. Doyle v. City of Roseville, 524 N.W.2d 461, 463 (Minn. 1994) (citations omitted). Because it is impractical to expect local government units to eliminate all ice from its streets or sidewalks, the county has no duty to warn of, or prevent, “mere slipperiness caused by a natural flow of water from melted ice and snow.” Smith v. Village of Hibbing, 272 Minn. 1, 3, 136 N.W.2d 609, 610 (1965) (citation omitted). The county’s duty to warn and protect arises only when the county has actual or constructive knowledge of accumulations forming dangerous ridges or irregularities and has sufficient time to remedy the dangerous condition. Id.
As the trial court concluded, the evidence in this case fails to show that respondent Anoka County owed a duty to warn or protect appellant from the danger of a slip on the steps of its building. The evidence shows, if anything, only patchy slipperiness. Although appellant often referred to it as an “accumulation,” there is no evidence to suggest any ice had formed “slippery and dangerous ridges, hummocks, depressions, [or] other irregularities.” Doyle, 524 N.W.2d at 463. Appellant repeatedly indicated that he did not recall the exact nature or extent of the slippery conditions that are the basis of his allegations.
Also, there is no evidence the circumstances were such that respondent Anoka County should have been aware of any ice on the steps, no evidence that actual notice was given, and no evidence of actual knowledge.
The existence of a duty is generally a question of law, reviewed de novo. H.B. By Clark v. Whittemore, 552 N.W.2d 705, 707 (Minn. 1996); Johnson v. State, 553 N.W.2d 40, 49 (Minn. 1996). When the facts are disputed, it is for the jury to determine the underlying facts, yet the decision on the existence of a legal duty remains a question of law for the court. Beauty Craft Supply & Equip. Co. v. State Farm Fire & Cas. Ins. Co., 479 N.W.2d 99, 101 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992). The question of whether a municipality received constructive notice of a problem condition is usually considered a matter for the jury. Jindra v. City of St. Anthony, 533 N.W.2d 641, 644 (Minn. App. 1995).
The facts are disputed as to whether there was ice on the steps. However, even assuming the facts were as appellant has alleged them to be, there is still no evidence of anything beyond “mere slipperiness”—no evidence of “ridges, hummocks, depressions, [or] other irregularities.” Doyle, 524 N.W.2d at 463. Therefore, even if appellant’s version of the facts is accepted as true, respondent Anoka County still owed no duty to appellant.
In reviewing the same issue, the trial court emphasized that the evidence offered by appellant failed to show causation. Finding that the evidence does not sustain a duty owed by respondent Anoka County, we decline to address whether the evidence is sufficient to attribute appellant’s fall to any alleged breach.
Appellant also contends that respondent Anoka County was negligent regarding the shape of the stairs and the absence of a handrail. There is no evidence in the record to demonstrate that the shape of the stairs, if it had any causal relationship to appellant’s injuries, was dangerous. The duty to maintain a railing is confined to extraordinary circumstances, in situations where the stairway is defective or has been constructed or maintained in a dangerous way. Geislinger v. Village of Watkins, 269 Minn. 116, 126-27, 130 N.W.2d 62, 69 (1964). The only harmful circumstance demonstrated in this case is ice, which the record does not identify as out of the ordinary.
2. Respondent State of Minnesota
Once the initial defendant, respondent Anoka County, made a responsive pleading, appellant could no longer amend his complaint to add a party, unless appellant obtained either consent of the adverse party or leave of the court. Minn. R. Civ. P. 15.01. In such circumstances, the court should grant the motion when justice requires, taking into account several factors, particularly including the prejudice to the adverse party. See Minn. R. Civ. P. 15.01; see also Wilson v. City of Eagan, 297 N.W.2d 146, 151 (Minn. 1980) (applying rule). These factors may also include the timeliness of the amendment, the history of the litigation, and the nature of the proposed amended claims. See Hughes v. Micka, 269 Minn. 268, 275-76, 130 N.W.2d 505, 510-11 (1964) (finding no abuse of trial court discretion; considering the timing of the requested amendment, the history of the dispute, and the nature of the proposed additional claims).
The prejudice to the respondent state in the circumstances of this case is extraordinary, given the passage of five and one-half years and the absence of any known evidence as to the condition of the stairs, other than the memory of appellant himself. Because appellant repeatedly confessed he could not really recall the nature of the conditions on the steps, the length of time is particularly burdensome to the state.
It is also significant that appellant learned of the state’s ownership of the property in May 1998 and took no action on the matter for another five months, until October 1998. If leave to amend a complaint is denied, prejudice to the moving party can be weighed against prejudice to the adverse party. Wilson, 297 N.W.2d at 151. Any prejudice to appellant due to the expiration of the statute of limitations is directly attributable to appellant’s failure to act earlier on his claim.
Under the circumstances, the trial court did not abuse its discretion in denying leave to amend and dismissing the case.
The only evidence of the stairway height variation consists of a letter from a Russell E. Smith, who identifies himself as a “Building Code Official, certification # 0003.” This letter was apparently attached to a sworn affidavit prepared by appellant’s counsel. Rule 56.03 provides for summary judgment if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any” show there is no genuine issue of material fact. Minn. R. Civ. P. 56.03. Rule 56.05 requires that affidavits be made on personal knowledge and that affidavits affirmatively show the affiant’s competency as to the matter. Minn. R. Civ. P. 56.05. This letter does not meet that standard. It is merely an unsworn statement, with no indicia of reliability, and it does not establish Mr. Smith’s expertise or even who his employer is. For this reason, the letter does not support appellant’s claim of a genuine issue of material fact.
 Appellant contends the absence of a rail and the unevenness of the steps were in violation of state and local codes and thus constituted negligence per se. While ordinances other than the state building code are mentioned in appellant’s argument, none are reproduced in the record. Correspondingly, no specific provisions of the building code are cited or reproduced in the record. More importantly, the building code contains a “grandfather clause” exempting previous construction from complying with the code. See 2 MCAR § 103, 5 (1974). The provision in the lease requiring compliance with building codes did not establish an obligation that nullified the grandfather clause.