This opinion will be unpublished and

may not be cited except as provided by

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






Antoinette Charai,


City of Woodbury,


Filed July 11, 2000


Peterson, Judge



Washington County District Court

File No. C1985044



Steven H. Silton, 901 Foshay Tower, 821 Marquette Avenue, Minneapolis, MN 55402 (for appellant)

John E. Hennen, League of Minnesota Cities, 145 University Avenue West, St. Paul, MN 55103 (for respondent)



Considered and decided by Peterson, Presiding Judge, Halbrooks, Judge, and Huspeni, Judge.*

U N P U B L I S H E D    O P I N I O N


Appellant Antoinette Charai was injured while rollerblading on an asphalt trail in a park in the City of Woodbury.  She sued the city, alleging negligent maintenance of the trail.  The city moved for summary judgment, arguing that Charai’s claims were barred by recreational use immunity and official immunity and asserting the defense of primary assumption of risk.  The district court concluded that the city was entitled to statutory recreational use immunity and granted the motion for summary judgment.  The district court did not rule on official immunity or primary assumption of risk.  Charai appeals from the grant of summary judgment.  Respondent City of Woodbury filed a notice of review seeking review of all issues presented to the district court.  We affirm.


On April 28, 1997, Charai went rollerblading on an asphalt trail in Ojibway Park in the City of Woodbury.  When she rounded a curve in the trail and began going downhill, she saw a yellow strip painted across the trail.  As she neared the strip, she realized that it was a heave in the trail.  The pavement was rough, and Charai had difficulty braking.  When she realized that she would not be able to stop before hitting the heave, she went off the trail onto the grass, fell, and injured her shoulder.

A storm-sewer pipe installed in 1991 caused the heave in the trail.  In early April 1997, the park maintenance supervisor for the city saw the heave but determined that it could not be immediately repaired because hot-mix asphalt was not yet available.  Because the supervisor believed that the heave was a place where someone could be injured, he ordered that the heave be painted and that some advance notice be painted on the asphalt. Charai testified that “caution” and “bump” notices were not painted on the asphalt on the day she fell. 

The city moved for summary judgment, asserting recreational use immunity under Minn. Stat. § 466.03, subd. 6e (1998).  The district court granted summary judgment, concluding that because Charai failed to establish that the condition of the trail at the time of her accident was likely to cause death or serious bodily harm, or that the heave was a concealed condition, she did not fit within the trespasser exception to the recreational use immunity statute.   


            On appeal from summary judgment, this court considers whether there are any genuine issues of material fact and whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  The evidence is viewed 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).  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), review denied (Minn. June 26, 1996).  Whether governmental action is protected by statutory immunity is a question of law.  Zank v. Larson, 552 N.W.2d 719, 721 (Minn. 1996).  We need not defer to the district court’s ruling on a purely legal issue.  Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984).

            Charai argues that the district court erred by concluding that the city is entitled to recreational use immunity under Minn. Stat. § 466.03, subd. 6e.

            Generally, a municipality is liable for the torts of its employees acting within the scope of their employment.  Minn. Stat. § 466.02 (1998).  But a municipality is immune from tort claims

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).  Accordingly, a municipality is entitled to recreational use immunity unless its conduct would entitle a trespasser to recover damages against a private person.  Schaffer v. Spirit Mountain Recreation Area Auth., 541 N.W.2d 357, 360 (Minn. App. 1995).

            The general trespasser standard of the Restatement (Second) of Torts § 335 (1965) defines the duty owed by a municipality to users of its recreational facilities.  Johnson v. Washington County, 518 N.W.2d 594, 599 (Minn. 1994); Green-Glo Turf Farms, Inc. v. State, 347 N.W.2d 491, 494 (Minn. 1984).

Section 335 provides that a possessor of land is subject to liability for bodily harm caused to a trespasser by an artificial condition on the land if

            (a) the condition

            (i) is one which the possessor has created or         maintains and

(ii) is, to his knowledge, likely to cause death or serious bodily harm to such trespasser and

(iii) is of such a nature that he has reason to believe that such trespassers will not discover it and,


(b) the possessor has failed to exercise reasonable care to warn such trespassers of the condition and the risk involved.


Schaffer, 541 N.W.2d at 360 (quoting Restatement (Second) of Torts § 335).  A plaintiff must prove all of the elements of section 335 to defeat immunity.  Id.  Under the section 335 standard, “a landowner will be liable only for failing to exercise reasonable care to warn trespassers about hidden, artificial dangers created or maintained by the landowner.”  Sirek v. State Dep’t of Natural Resources, 496 N.W.2d 807, 810 (Minn. 1993).

            Whether a condition was hidden depends on the visibility of the condition, not on whether the injured party actually saw the danger.  Steinke v. City of Andover, 525 N.W.2d 173, 177 (Minn. 1994).  If “a brief inspection would have revealed the condition, it is not concealed.”  Johnson v. State, 478 N.W.2d  769, 773 (Minn. App. 1991) (citation omitted).  Trespassers are required to be alert to conditions existing on the land.  Sirek, 496 N.W.2d at 812 (citing Restatement (Second) of Torts § 335 cmt. f).  Charai argues that if the heave had not been concealed, there would have been no need for park employees to paint it.  She contends that the paint actually obscured the heave and that the warnings had not yet been painted on the trail at the time of her injury.  But she also testified in her deposition that she had an unobstructed view of the heave as she was coming down the hill and that as she came “around the curve and started going down the hill,” she saw the heave.  The evidence presented does not support a conclusion that the heave was hidden. See Lundstrom v. City of Apple Valley, 587 N.W.2d 517, 520 (Minn. App. 1998) (summary judgment appropriate where no evidence introduced to support conclusion that tape was hidden hazard likely to cause death or serious bodily injury and respondent testified that he had seen tape on tennis court prior to playing tennis).

            Because Charai must prove all elements of section 335 to defeat immunity, and the evidence she presented did not create a genuine issue of material fact as to whether the heave was hidden, the district court did not err by granting summary judgment.  Because our decision regarding recreational use immunity makes it unnecessary to address other issues the city raised in its notice of review, we decline to do so.


*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.