This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






S.M.R., et al.,





City of Inver Grove Heights,



Filed April 18, 2000


Willis, Judge


Dakota County District Court

File No. C1988622


Thomas W. Pugh, Paul W. Rogosheske, Thuet, Pugh, Rogosheske & Atkins, Ltd., 222 Grand Avenue West, Suite 100, South Saint Paul, MN  55075 (for appellants)


Susan M. Sager, Carla J. Heyl, 145 University Avenue West, St. Paul, MN  55103 (for respondent)


            Considered and decided by Kalitowski, Presiding Judge, Willis, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant S.M.R. challenges summary judgment in favor of respondent City of Inver Grove Heights on her negligence and common-law tort claims. We affirm.


In August 1996, 12-year-old S.M.R. was riding her bicycle through Ernester Park, then-undeveloped property owned by the City of Inver Grove Heights, when she lodged her bicycle’s front tire in a drainage grate and fell, breaking her arm.  S.M.R. sued the city, alleging negligence and other common-law tort claims.  The city moved for summary judgment, arguing that it was entitled to statutory recreational-use immunity.  The district court granted the city’s motion, and S.M.R. appeals.


On appeal from summary judgment, this court must determine if there are any genuine issues of material fact and if the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  We review the facts in the light most favorable to the party against whom summary judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  The applicability of statutory immunity is a question of law, which we review de novo.  Lundstrom v. City of Apple Valley, 587 N.W.2d 517, 519 (Minn. App. 1998).

The district court granted summary judgment to the city on the ground of statutory recreational-use immunity.  A municipality is immune from

[a]ny claim based upon the construction, operation, or maintenance of any property owned or leased by the municipality that is intended or permitted to be used as a park, as an open area for recreational purposes, or for the provision of recreational services * * * if the claim arises from a loss incurred by a user of park and recreation property or services.  Nothing in this subdivision limits the liability of a municipality for conduct that would entitle a trespasser to damages against a private person.


Minn. Stat. § 466.03, subd. 6e (1998).  The elements of the “trespasser exception” to immunity are set forth in the Restatement (Second) of Torts section 335 (for adult trespassers) and section 339 (for child trespassers).  Sirek v. State, Dep’t of Natural Resources, 496 N.W.2d 807, 809-11 (Minn. 1993) (reviewing applicability of Restatement (Second) of Torts § 335, § 339); Green-Glo Turf Farms, Inc. v. State, 347 N.W.2d 491, 494 (Minn. 1984) (adopting Restatement (Second) of Torts §§ 333-339 as controlling for trespasser exception to recreational-use immunity); Schaffer v. Spirit Mountain Recreation Area Auth., 541 N.W.2d 357, 360 (Minn. App. 1995) (reviewing applicability of Restatement (Second) of Torts § 335, § 339). 

The district court concluded that because Ernester Park was intended and permitted to be used for recreational purposes, the city had prima facie established that it was entitled to recreational-use immunity.  The court then analyzed S.M.R.’s claim under the adult-trespasser standard of section 335 and determined that S.M.R. failed to establish the elements of the trespasser exception to recreational-use immunity. 

            S.M.R. argues first that the district court should have applied the child-trespasser standard of section 339 of the Restatement instead of section 335.  But this court may generally consider “only those issues that the record shows were presented and considered by the [district] court in deciding the matter before it.”  Thayer v. American Fin. Advisers, Inc., 322 N.W.2d 599, 604 (Minn. 1982).  A party may not raise on appeal the same general issue litigated in the district court but under a different theory.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  S.M.R. argued to the district court that the city was not entitled to immunity because her claim was within the trespasser exception under section 335 of the Restatement.  S.M.R.’s only mention of section 339 is in a footnote to her brief in opposition to the city’s motion for summary judgment, where she stated that

[i]t bears noting that the [city] has based its analysis upon the standard of care for adult trespassers * * * [but] [t]he applicable section of the Restatement for child trespassers is actually § 339.


S.M.R. presented no further argument regarding the applicability of section 339, and the district court does not appear to have considered section 339 in deciding the city’s motion.  Thus, the applicability of section 339 is not properly before us because S.M.R. did not argue this theory before the district court.  See id. at 582 (refusing to address argument presented on appeal where at district court party, while not conceding opponent’s position, merely stated that it was “arguably” incorrect).

We nevertheless note that section 339 is not applicable here.  S.M.R. argues that the child-trespasser exception should apply simply “because at the time of her injuries [S.M.R.] was only twelve years old.”  But section 339 does not apply to cases where the condition from which the injury arose may be understood and appreciated by a child of an age “to be allowed at large.”  Sirek, 496 N.W.2d at 811 (quoting Restatement (Second) of Torts § 339, cmt. j (1965)).  S.M.R. knew the drainage grate existed and that it was close to the bike path.  This is a condition whose danger may be understood and appreciated by children who are allowed to bicycle without adult supervision.  See Schaffer, 541 N.W.2d at 360 (holding that 14-year-old’s claim of personal injury arising from collision with barrel on ski hill was subject to section 335’s adult-trespasser standard because condition was “one that should be appreciated by children who are allowed to ski without adult supervision”).  Thus, the district court did not err in applying the section 335 standard to S.M.R.’s claim.

            S.M.R. argues that even if section 335 is the applicable standard, the district court erred in granting summary judgment to the city.  The plaintiff bears the burden of demonstrating that each element of the trespasser exception in section 335 is met in order to defeat a claim of recreational-use immunity.  Lundstrom, 587 N.W.2d at 520.  Section 335 requires, in part, that the possessor of the land know that the artificial condition is “likely to cause death or serious[] bodily harm to * * * trespassers.”  Restatement (Second) of Torts § 335(a)(ii) (1965).  

Here, the district court concluded that “no affidavit, pleading, deposition excerpt or other evidence has been presented indicating [the city] knew the grate was likely to cause death or serious bodily harm.”  S.M.R. argues that submission of an excerpt of a deposition, in which S.M.R.’s mother stated that a neighbor told her “this has happened before [and] he had informed [the city] about it,” is sufficient to raise a genuine issue of material fact regarding the city’s actual knowledge that the grate was likely to cause death or serious bodily harm.  See generally Cobb v. State, Dep’t of Natural Resources, 441 N.W.2d 839, 841 (Minn. App. 1989) (stating that “[a]ctual knowledge” of the likelihood of causing death or serious bodily harm is required to create liability under section 335).  But a party must extract specific, admissible facts from the record and present them to the district court to oppose summary judgment successfully.  Kletschka v. Abbott-Northwestern Hosp., Inc., 417 N.W.2d 752, 754 (Minn. App. 1988), review denied (Minn. Mar. 30, 1988).  A party cannot rely on hearsay to avoid summary judgment.  Rademacher v. FMC Corp., 431 N.W.2d 879, 881 (Minn. App. 1988).  And a district court must disregard inadmissible hearsay evidence when considering a summary-judgment motion.  Bersch v. Rgnonti & Assocs., Inc., 584 N.W.2d 783, 788 (Minn. App. 1998).  S.M.R. offered no non-hearsay evidence showing that the city had any actual knowledge that the grate was likely to cause death or serious bodily harm to trespassers. 

Because S.M.R. did not demonstrate the existence of a genuine issue of material fact regarding an essential element of the trespasser exception to the recreational-use immunity statute, the district court did not err in concluding that the city is immune from liability.