This opinion will be unpublished and

may not be cited except as provided by

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






Lorene Banovetz,


Betty King,


Filed August 22, 2000


Stoneburner, Judge


Hennepin County District Court

File No. 983814



Dean M. Salita, Brabbit & Salita, P.A., 100 South Fifth Street, Suite 450, Minneapolis, MN 55402; and


Thomas Countryman, 955 Cromwell Avenue, St. Paul, MN 55114 (for appellant)


Leon R. Erstad, George C. Hottinger, Erstad & Reimer, P.A., 1000 Northland Plaza, 3800 West 80th Street, Minneapolis, MN 55431 (for respondent)



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



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




Appellant Lorene Banovetz argues the district court erred in granting summary judgment based on its determination that respondent Betty King did not owe Banovetz a legal duty with regard to the icy condition of steps located on King’s unoccupied property.  Banovetz claims that whether King had constructive knowledge of the icy condition of the steps should have been decided by a jury.  We affirm.



On appeal from summary judgment, this court considers “whether there are any genuine issues of material fact to be determined” and whether the district court “erred in its application of the law.”  O'Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn. 1996) (citation omitted); State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  In reviewing summary judgment, this court examines the evidence in the light most favorable to the nonmoving party.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  In order to show the existence of a genuine issue of material fact, 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); see also DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997) (stating no genuine issue of material fact exists when nonmoving party merely creates metaphysical doubt as to factual issue not sufficiently probative of essential element of nonmoving party’s case to permit reasonable persons to draw different conclusions); Murphy v. Country House, Inc., 307 Minn. 344, 351, 240 N.W.2d 507, 512 (1976) (stating genuine issue for trial requires substantial evidence).

Banovetz, a mail carrier, was injured when she fell on ice as she descended steps at King’s unoccupied property.  Banovetz sued King for negligence.  Banovetz did not contend that King caused the icy condition of the steps or had actual knowledge of the icy condition of the steps.  The district court determined that there was no evidence that the condition existed for a period of time sufficient to constitute constructive notice to King and granted summary judgment because, without actual or constructive notice of the condition, King owed no duty to Banovetz. 

The existence of a legal duty is generally a question of law, subject to de novo review.  ServiceMaster of St. Cloud v. GAB Bus. Servs., Inc., 544 N.W.2d 302, 307 (Minn. 1996); see Gabrielson v. Warnemunde, 443 N.W.2d 540, 543 n.1 (Minn. 1989) (clarifying ‘duty’ is legal issue for court to determine, not jury); Johnson v. Urie, 405 N.W.2d 887, 891 n.5 (Minn. 1987) (noting if existence of duty turns on particular disputed facts, they may be submitted to jury for resolution, but legal decision of whether duty exists on such facts remains with the court); Germann v. F.L. Smithe Mach. Co., 395 N.W.2d 922, 924 (Minn. 1986) (determining ‘duty’ is legal question reviewed de novo by appellate courts); see also 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) (indicating that where facts are in dispute, jury determines underlying facts, but existence of legal duty remains question of law for court).  This court is neither bound by, nor need defer to, the district court’s legal conclusions.  Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984).

To establish a legal duty in this case, Banovetz must show that King had constructive notice of the icy condition of the steps on her property.  See Otis v. First Nat’l Bank, 292 Minn. 497, 498, 195 N.W.2d 432, 433 (1972) (indicating plaintiff must establish duty by either actual or constructive notice of dangerous condition); Wolvert v. Gustafson, 275 Minn. 239, 241, 146 N.W.2d 172, 173 (1966) (noting where defendant has not caused dangerous condition, plaintiff bears burden of showing owner had actual knowledge of dangerous condition “or that it had existed for a sufficient period of time to charge the [owner] with constructive notice of its presence.”); Messner v. Red Owl Stores, 238 Minn. 411, 415, 57 N.W.2d 659, 662 (1953) (holding plaintiff bears burden of proving that defendant either caused dangerous condition or knew or should have known of condition.); see also Otto v. City of St. Paul, 460 N.W.2d 359, 362 (Minn. App. 1990) (recognizing that owner of land must have actual or constructive notice of dangerous condition before liability will be imposed).

Banovetz argues that there is a fact issue about whether the condition existed for sufficient time to constitute constructive knowledge to King of the icy condition of the steps.  Constructive knowledge is established through evidence that the dangerous condition was present for such period of time so as to constitute constructive notice of the danger.  Anderson v. St. Thomas More Newman Ctr., 287 Minn. 251, 253, 178 N.W.2d 242, 243-44 (1970).  Absent any proof that the danger had been in existence for an appreciable time, no constructive notice will be found.  Id.

King did not recall any snow or ice on the steps when she visited the home two days before the accident.  Banovetz, who delivered mail to this property five days a week, claimed that it snowed approximately two or three days before the accident.  She theorized, in her deposition, that by the day of her fall, “snow that was on the roof * * * had melted and gone on the steps and frozen.”  Banovetz also claimed that a “dusting of snow” from the night before the fall concealed the icy condition of the steps.  Banovetz did not present any evidence beyond this speculation about when the ice formed on the steps.

Even viewing the evidence in the light most favorable to Banovetz, mere “speculation as to * * * how long [the dangerous condition] existed, warrants judgment for the landowner.”  Rinn v. Minnesota State Agric. Soc’y, 611 N.W.2d 361, 365 (Minn. App. 2000) (citing Bob Useldinger & Sons, Inc. v. Hangsleben, 505 N.W.2d 323, 328 (Minn. 1993)).  Banovetz provides no evidence of when the ice formed or that the icy condition of the steps existed for an appreciable time before the accident.  The district court correctly concluded that there was no evidence from which a reasonable person could conclude that the condition existed for a sufficient time to constitute constructive knowledge to King.  See Spallen v. Pullman Co., 151 Minn. 152, 154, 186 N.W. 233, 234 (1922) (holding where evidence fails to show when dangerous condition was created, there is nothing on which to base finding of constructive notice).  Absent constructive knowledge of the condition, King had no duty to Banovetz.  The district court did not err in granting summary judgment for King.