This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-00-906

 

John Richtsmeier,
Appellant,

 

vs.

 

Stuart Johnson

d/b/a Moore Springs Resort,

Respondent.

 

Filed November 7, 2000

Affirmed

Judge Mulally*

 

Cass County District Court

File No. C299484

 

Robert Edwards, Edwards & Malzahn, Ltd., 229 Jackson Street, Suite 105, Anoka, MN 55303 (for appellant)

 

Paul A. Rajkowski, Rajkowski Hansmeier, Ltd., P.O. Box 1433, St. Cloud, MN 56302 (for respondent)

 

            Considered and decided by Stoneburner, Judge, Foley, Judge,** and Mulally, Judge.

U N P U B L I S H E D  O P I N I O N

MULALLY, Judge

            Appellant John Richtsmeier challenges the district court’s grant of summary judgment in favor of respondent Stuart Johnson, owner of Moore Springs Resort, contending the court erred in holding that respondent owed no duty to warn appellant. Because there are no genuine issues of material fact for trial and the district court correctly applied Minnesota law, we affirm.

D E C I S I O N

On appeal from summary judgment, this court must determine 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).  A reviewing court “must view the evidence in the light most favorable to the party against whom judgment was granted.”  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (citation omitted).  To prove negligence, a plaintiff must show (1) a duty of care existed; (2) that duty was breached; (3) an injury was sustained; and (4) breach of the duty proximately caused the injury.  Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995).  “A defendant is entitled to summary judgment as a matter of law when the record reflects a complete lack of proof on an essential element of the plaintiff’s claim.”  Id. (citation omitted).  Whether one owes another a legal duty presents “a question of law to be determined by the court.”  Zimmer v. Carlton County Coop. Power Ass’n, 483 N.W.2d 511, 513 (Minn. App. 1992), review denied (Minn. June 10, 1992).

Open and Obvious Danger

The district court concluded respondent did not owe a duty to warn appellant because the potentially dangerous condition of the boat ramp was known and obvious.  While a property owner must use reasonable care to protect invitees from injury due to foreseeable hazards on the property, he or she is not liable “for harm caused by dangers that are ‘known or obvious’ to those invitees.”  Sutherland v. Barton, 570 N.W.2d 1, 7 (Minn. 1997) (quotation omitted); see also Peterson v. W.T. Rawleigh Co., 274 Minn. 495, 497, 144 N.W.2d 555, 557-58 (1966) (adopting Restatement (Second) of Torts § 343A (1965)); Lawrence v. Hollerich, 394 N.W.2d 853, 855 (Minn. App. 1986), review denied (Minn. Dec. 17, 1986).  The test for whether a hazardous condition is open and obvious “is not whether the injured party actually saw the danger, but whether it was in fact visible.”  Martinez v. Minnesota Zoological Gardens, 526 N.W.2d 416, 418-19 (Minn. App. 1995) (citing Munoz v. Applebaum’s Food Mkt., Inc., 293 Minn. 433, 434, 196 N.W.2d 921, 922 (1972)), review denied (Minn. Mar. 29, 1995).  Because there is no evidence that the condition of the boat-launch ramp was not visible to appellant, the hazardous condition of the boat ramp is “open and obvious” under Minnesota law.

But, relying on Peterson, appellant argues that a hazardous condition is not open and obvious as a matter of law simply because the hazard is observable.  Peterson, 274 Minn. at 497, 144 N.W.2d at 557-58.  In Peterson, the Minnesota Supreme Court explained that a landowner must warn or take reasonable steps to protect an invitee from physical harm where the landowner can and should anticipate that the invitee will be injured despite the obviousness of the dangerous condition.  Id. (discussing Restatement (Second) of Torts § 343A cmt. f (1965)).  Because there is evidence that respondent knew others had slipped and fallen on the boat ramp and intended to warn appellant, appellant claims respondent should have anticipated that appellant might fall and therefore, had a duty to warn him about the hazard despite its obviousness.

In 1997, the Minnesota Supreme Court considered whether a manufacturing plant should be liable for the death of an independent-contractor’s employee because it should have anticipated the harm despite the obviousness of the dangerous condition.  Sutherland, 570 N.W.2d at 7.  In Sutherland, an electrician was killed while attempting to measure a section of conduit wiring to be laid near exposed live buss bars.  Id. at 3-4.  In concluding the plant owed no duty to warn the electrician as a matter of law, the supreme court noted that the electrician had 30 years of experience as a licensed journeyman electrician and knew the dangers involved in working near exposed live buss bars.  Id. at 7.  The supreme court explained that it was entirely reasonable for the manufacturing plant to expect that the independent contractor and its employee, in light of their electrical expertise and experience, would take all necessary safety precautions to avoid the known and obvious danger of live buss bars.  Id.  Therefore, the court held the plant did not owe a duty to protect the electrician from harm by the known and obvious danger posed by the live buss bars.  Id. at 7-8.

Similarly, this court held that a county did not owe a duty to protect children from tree branches where “[t]he tree was in plain view, and the possibility of injury from running into it [was] obvious, even to children.”  Sperr by Sperr v. Ramsey County, 429 N.W.2d 315, 317-18 (Minn. App. 1988), review denied (Minn. Nov. 23, 1988).  In Sperr, the plaintiff sustained injuries when he ran into a low branch after leaving an ice arena.  Id. at 315.  Because the tree was clearly visible and no paths led to the tree, this court held: (1) the risk of running into it was obvious, and (2) there was no evidence to indicate Ramsey County should have reasonably anticipated that business invitees would be injured by the tree branches.  Id. at 317-18.  Accordingly, this court held Ramsey County had no duty to warn or protect the plaintiff from the open-and- obvious hazard the tree presented.  Id. at 318. 

Here, it is undisputed that: (1) appellant had experience launching boats on Minnesota lakes and had encountered slippery boat ramps in the past; (2) respondent knew appellant was an experienced boater; (3) appellant was wearing boat shoes at the time of the accident; (4) nothing prevented appellant from observing the condition of the boat ramp; and (5) the slip occurred above the water line.  Under these circumstances, and in light of the principles announced in Sutherland and Sperr, it was entirely reasonable for respondent to expect that appellant would exercise due care while maneuvering around the boat ramp.  While affidavit evidence suggests that respondent knew others had fallen on the boat ramp and intended to warn appellant, there was nothing in this case, except the obviousness of the wet condition of the boat ramp, to indicate to respondent that appellant might be injured attempting to remove a piece of wood from under the boat motor.  See Lawrence, 394 N.W.2d at 856 (affirming summary judgment in favor of landowner where nothing except obvious steepness of a hillside indicated to landowner that injury might result from descending the hill).

Distracting Circumstances

Appellant also contends, however, that respondent is liable for his injuries because the task of removing the piece of wood from under the motor distracted him from observing his footing and the condition of the ramp.  Appellant cites several Minnesota cases for the proposition that a jury should consider the presence of distracting circumstances in assessing a plaintiff’s exercise of due care.  See, e.g., Krengel v. Midwest Automatic Photo, Inc., 295 Minn. 200, 206-07, 203 N.W.2d 841, 845-46 (1973); Tonne v. Becker Grain & Lumber Co., 273 Minn. 73, 77, 139 N.W.2d 797, 799-800 (1966); Carter v. Western Union Tel. Co., 270 Minn. 341, 345, 133 N.W.2d 833, 836 (1965); Johnson v. Brand Stores, Inc., 241 Minn. 388, 392-93, 63 N.W.2d 370, 373-74 (1954); Mayzlik v. Lansing Elevator Co., 241 Minn. 468, 477-78, 63 N.W.2d 380, 386 (1954); Lincoln v. Cambridge-Radisson Co., 235 Minn. 20, 23-24, 49 N.W.2d 1, 3 (1951).  Although these cases support the proposition that juries should consider distracting circumstances in determining whether a plaintiff acted as a reasonably prudent person, each case is procedurally distinguishable from this case.

In Krengel, Tonne,and Carter, the Minnesota Supreme Court recognized that some distractions may excuse the failure to observe visible dangers, but addressed the jury’s apportionment of negligence, not the existence of a legal duty to warn or protect an invitee.  See Krengel, 295 Minn. at 206-07, 203 N.W.2d at 845-46 (finding evidence sufficient to affirm jury’s findings and apportionment of negligence); Tonne, 273 Minn. at 77, 139 N.W.2d at 799-800 (stating jury could have found plaintiff was justifiably distracted from observing the dangerous condition); Carter, 270 Minn. at 345, 133 N.W.2d at 836 (concluding jury should decide whether plaintiff was contributorily negligent where sign distracted her from observing wetted sand on floor). While recognizing the importance of distracting circumstances in assessing whether the plaintiff exercised due care in Mayzlik and Lincoln, the court considered whether the evidence allowed the jury to find as it did, not whether a legal duty existed.  Mayzlik, 241 Minn. at 477-78, 63 N.W.2d at 386; Lincoln, 235 Minn. at 24, 49 N.W.2d at 3.  In Johnson, the supreme court addressed the propriety of the trial court’s jury instructions.  See Johnson, 241 Minn. at 392-94, 63 N.W.2d at 373-74 (stating jury instructions should explain that plaintiff must observe dangers in plain sight unless distraction excuses failure to observe hazard).

Appellant contends that the district court incorrectly concluded that respondent did not owe a duty to warn or otherwise protect him from injury.  Whether one owes another a legal duty presents “a question of law to be determined by the court.”  Zimmer, 483 N.W.2d at 513.  In the cases cited by appellant, the supreme court was reviewing a jury’s factual determination or jury instructions, not a district court’s application of the law.  Accordingly, appellant’s reliance on these cases is misplaced and ineffective.

Other Acts of Negligence

Finally, appellant alleges that respondent was negligent in failing to request that he remove the block of wood before backing the boat onto the boat ramp.  See Restatement (Second) of Torts § 343A cmt. f (1965) (explaining landowners must “take other reasonable steps” to protect an invitee from dangerous conditions).  An action for negligence requires proof that: (1) a duty of care existed; (2) such duty was breached; (3) an injury was sustained; and (4) breach of the duty proximately caused the injury.  Lubbers, 539 N.W.2d at 401.  Because we conclude the district court correctly determined that respondent owed no legal duty to appellant, any allegations of other acts of negligence are without merit and summary judgment was appropriate.  See id. (stating failure to prove an essential element of negligence claim entitles the defendant to summary judgment as a matter of law).

Affirmed.



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

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