This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
Ms. Nettie Scott,
The Best Steakhouse, d/b/a B & B Restaurants, Inc.,
Cathay Chow Mein, Inc.,
Steep & Brew, Inc.,
Cities Management, Inc.,
Environmental Recycling Corporation,
Waste Management of Minnesota, d/b/a
Waste Management - Savage,
Filed January 23, 2001
Hennepin County District Court
File No. PI9911414
Joseph J. Osterbauer, 400 Third Avenue North, Suite 201, Minneapolis, MN 55402 (for appellant)
L.T. Merrigan, Thomas K. Cambre, Merrigan, Brandt & Ostenso, P.L.L.P., 25 Ninth Avenue North, P.O. Box 458, Hopkins, MN 55343-0458 (for respondent The Best Steakhouse)
Andrew T. Shern, Nancy A. Proffitt, Murnane Conlin White & Brandt, P.A., 1800 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101 (for respondent Cathay Chow Mein, Inc.)
Michael R. Quinlivan, Bethan M. Davies, Cronan, Pearson, Quinlivan, P.A., 1400 Foshay Tower, 821 Marquette Avenue South, Minneapolis, MN 55402 (for respondent Cities Management, Inc.)
Randi W. LaFleur, 5350 West 78th Street, Minneapolis, MN 55439 (for respondent Environmental Recycling Corporation)
Joseph M. Stocco, Law Offices of Joseph Stocco, 3020 Piper Jaffray Tower, 222 South Ninth Street, Minneapolis, MN 55402 (for respondent Palmer)
Patrick D. Reilly, Erstad & Riemer, P.A., 1000 Northland Plaza, 3800 West 80th Street, Minneapolis, MN 55431-4441 (for respondent Waste Management of Minnesota)
Considered and decided by Harten, Presiding Judge, Klaphake, Judge, and Anderson, Judge.
After slipping on grease on a sidewalk alongside a trash enclosure used and maintained by several businesses in a small strip mall located in Minneapolis, appellant Nettie Scott brought this negligence action against respondents The Best Steakhouse and Cathay Chow Mein, Inc., restaurants that used the trash enclosure and dumped grease into barrels located inside the enclosure. Cathay filed third-party claims against the other respondents, who include the strip mall’s owner, its manager, and the waste disposal companies that serve the restaurants; respondents thereafter filed numerous cross-claims and counterclaims against each other. The parties stipulated to amend the complaint to name all respondents as defendants.
Respondents moved for summary judgment, asserting that appellant failed to establish that they had either actual or constructive knowledge of the grease on the sidewalk. The district court agreed and granted summary judgment to all respondents; the court also refused to consider an affidavit submitted by appellant several weeks after the summary judgment hearing, in which another woman stated that in January 1998, she slipped in grease on the sidewalk outside the trash enclosure and complained to one of respondents’ employees. Because, even without the untimely affidavit, appellant presented sufficient evidence to establish that respondents created this condition, that they had a duty to take reasonable precautions to protect passersby from injuries foreseeable from this condition, and that appellant’s particular injuries were foreseeable, we reverse and remand.
D E C I S I O N
Summary judgment is proper only when no genuine issues of material fact exist and when one party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. Factual inferences, credibility, and the weight of the evidence all constitute factual questions for a jury. Nord v. Herreid, 305 N.W.2d 337, 339 (Minn. 1981). By their very nature, negligence cases raise factual questions and are often inappropriate for summary judgment. See Hasan v. McDonald’s Corp., 377 N.W.2d 472, 474-75 (Minn. App. 1985). Thus, where facts asserted by a plaintiff provide various bases for reasonably inferring a defendant’s liability, a grant of summary judgment will be reversed on appeal. Olson v. Kozlowski, 311 N.W.2d 851, 852 (Minn. 1981).
When taken in a light most favorable to appellant, the evidence and reasonable inferences that may be made from that evidence show: (1) on Tuesday, March 3, 1998, at approximately 9:00 a.m., appellant walked by respondents’ trash enclosure on her way to a nearby church; (2) sometime before 3:00 p.m., while on her way home, appellant slipped and fell on grease that had run across the sidewalk from underneath the trash enclosure; (3) when appellant reported the accident to a Best Steakhouse employee, the employee took her out to the trash enclosure and opened it; (4) appellant observed grease running out of a barrel, onto the concrete and out from under the trash area onto the sidewalk; (5) the enclosure was located on the public sidewalk, along a busy city street, and adjacent to a bus stop; (6) there were two barrels for the disposal of grease located in the center of the trash area, just inside one of the gates or doors; (7) employees from respondent Best Steakhouse would pour grease into one of the barrels daily; (8) employees from respondent Cathay would pour grease into the other barrel every Tuesday at about 10:00 a.m.; (9) an employee from Steep & Brew testified that prior to March 3, she occasionally noticed grease on the concrete slab inside the trash area, fairly close to the outside wooden wall and sidewalk; (10) photographs of the area taken sometime in March 1998 after appellant’s fall show that the trash enclosure is constructed of six-foot high privacy fencing; (11) from the photographs, it appears that the enclosure measures approximately six feet in width by thirty feet in length, runs alongside the building, and takes up almost half the width of the sidewalk; (12) the photographs also show a sewer cover located near the curb, but still in the passageway of the sidewalk, with visible signs of staining on the concrete; (13) the stains appear to originate from the trash area, run under the fencing, across the sidewalk, and into the sewer cover; (14) the trash enclosure has a gap at the bottom, between the concrete and the fencing, that would allow liquids spilled within the enclosed area to run out onto the sidewalk; (15) the sidewalk appears to slope away from the building and enclosed area, so that any spilled liquid would tend to run across the sidewalk and towards the sewer cover and the street; (16) appellant testified that these photographs show the sidewalk and area as it existed when she fell; (17) sometime after the accident, appellant sought medical treatment for pain and eventually underwent back surgery; and (18) appellant’s doctor opined that she has a permanent injury, which he believes is related to this specific accident.
Contrary to the district court’s decision, any duty owed by respondents is not contingent on their having either actual or constructive knowledge that grease was on the sidewalk the day appellant fell. Rather, where a dangerous condition results from the direct actions of an owner or possessor of land, a negligence theory of liability is appropriate; actual or constructive knowledge of the dangerous condition need not be shown. See Messner v. Red Owl Stores, Inc., 238 Minn. 411, 413, 57 N.W.2d 659, 661 (1953); Rinn v. Minnesota State Agric. Soc’y, 611 N.W.2d 361, 365 (Minn. App. 2000). Where abutting owners make an extraordinary use of a sidewalk for their own convenience, as the evidence shows here, they owe a duty to exercise reasonable care to assure that the affected portion of the sidewalk is maintained in a safe condition for passage by pedestrians. Graalum v. Radisson Ramp, Inc., 245 Minn. 54, 59-61, 71 N.W.2d 904, 908-09 (1955).
This duty to maintain requires respondents to undertake reasonable inspections of the sidewalk to discover possible dangerous conditions of which they may not know and to take other reasonable precautions to protect passersby from dangers that are foreseeable from this particular use of the sidewalk. See W. Page Keeton, Prosser & Keeton on Torts § 61, at 425-26 (5th ed. 1984). Although, as the dissent points out, there is evidence that inspections were made of the area, there is also evidence that, at times, grease ended up on the concrete.
“Foreseeability” is dependent on what one should reasonably anticipate. Johnson v. Evanski, 221 Minn. 323, 326, 22 N.W.2d 213, 215 (1946) (“If a person had no reasonable ground to anticipate that a particular act would or might result in any injury to anybody, then, of course, the act would not be negligent at all.”). “If the defendant could not reasonably foresee any injury as the result of his acts, or if his conduct was reasonable in light of what he could anticipate, there is no negligence, and no liability.” Logan v. Hennepin Ave. Methodist-Espiscopal Church, 210 Minn. 96, 98, 297 N.W. 333, 334 (1941) (citation omitted).
Given the placement, use, and design of the trash enclosure, a jury could find that it was reasonably foreseeable that many pedestrians would use the sidewalk alongside the enclosure, that any grease spilled inside the enclosure was likely to run out onto the sidewalk to the sewer cover and street, and that a passerby could easily slip and fall on this grease. The issue of whether respondents exercised reasonable care in their maintenance of this condition is a question for a jury to determine, making summary judgment inappropriate at this point. See Hanson v. Christensen, 275 Minn. 204, 218, 145 N.W.2d 868, 877 (1966) (“issues of negligence and contributory negligence were for the jury”).
Finally, appellant need not identify exactly who, as between Best Steakhouse and Cathay, deposited the grease into the barrel that day. Respondents include not only Best Steakhouse and Cathy, as the possessors of land, but also the owners and others whom the possessors and owners contracted with to maintain their premises. Because the evidence suggests that each respondent was responsible, in some way, for the condition of the trash enclosure, the issue of each respondent’s fault should be submitted to a jury. See Computer Tool & Eng’g, Inc. v. Northern States Power Co., 453 N.W.2d 569, 573-74 (Minn. App. 1990), review denied (Minn. May 23, 1990).
We therefore reverse the district court’s grant of summary judgment to respondents and remand for further proceedings.
Reversed and remanded.
HARTEN, Judge (dissenting)
I dissent. In my view, appellant fails to present sufficiently probative evidence of respondents’ duty to her or of any breach of that duty. The four essential elements of a claim for negligence are that defendants owed plaintiff a duty, that they breached that duty, that the breach was a proximate cause of plaintiff’s harm, and plaintiff was damaged. Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 157 (Minn. 1982). There is no genuine issue of material fact when the nonmoving party presents evidence that is not sufficiently probative of an essential element of that party’s case to permit reasonable people to draw different conclusions. DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997). Although proximate cause is generally a question of fact, where reasonable minds can arrive at only one conclusion it becomes a question of law and may be disposed of by summary judgment. Lubbers v. Anderson, 539 N.W.2d 398, 402 (Minn. 1995). For a defendant’s negligence to be the proximate cause of an injury, (1) the injury must have been foreseeable in the exercise of ordinary care, and (2) the plaintiff must show that the defendant’s conduct was a substantial factor in bringing about the injury. Id. at 401.
The majority claims that “the evidence and reasonable inferences that may be made from that evidence” show 18 facts. The majority infers half of these purported facts from prints of four photographs included in the appendix to appellant’s brief. Even appellant claims only that the pictures “purport to show the condition of the sidewalk similar to how it appeared the day [appellant] slipped and fell.”
Moreover, appellant’s deposition testimony on the pictures nullifies any evidentiary value they might have. She testified that it was “longer than two days” between her March 3, 1998, accident and the time the pictures were taken. This would certainly appear to be true: the pictures were taken in late spring or summer; one shows trees in full leaf; all show weeds growing in the cracks in the sidewalk, and two show a passerby in shirtsleeves.
Appellant also testified:
Q. Now, after you had your slip and fall, you went to visit [your attorney’s] office shortly thereafter?
A. It was a little while after. I didn’t just go immediately and call an attorney. * * *
Q. But it sounds like at least sometime still in March someone went out there with a camera and took some pictures?
A. It was—it was I think before the end of March.
A. I don’t remember what date, but it was—
Q. We’re not sure whether this set of pictures we have today are the March pictures or if these were taken sometime later on.
A. I remember the pictures that I see that Amy taking, and I—I remember some of those that you have, that he showed me.
Q. So you think maybe some of these were taken in March?
But the pictures could not have been taken in March, nor in April, nor in early May. Either the pictures included in the brief are not the pictures about which appellant testified or appellant had no accurate knowledge of when the pictures were taken.
As a threshold matter, the lack of foundation for these photographs makes them inadmissible as evidence. See Lundman v. McKown, 530 N.W.2d 807, 829 (Minn. App. 1995) (holding that photographs were admissible because proper foundation was provided by a police officer’s testimony and a physician’s testimony), review denied (Minn. May 31, 1995). Because the photographs are not admissible as evidence, they may not be used on summary judgment. See Hopkins v. Empire Fire & Marine Ins., 474 N.W.2d 209, 212 (Minn. App. 1991) (only evidence that would be admissible at trial may be offered to support or defeat summary judgment motion).
Nor is there any testimony to support the majority’s other inferences from these pictures. The fact that, to the majority, “the sidewalk appears to slope away from the building and enclosed area, so that any spilled liquid would tend to run across the sidewalk” is not proof of respondents’ liability for appellant’s fall in grease that she claims was on the sidewalk months before the picture was taken. “‘[I]n ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden.’” Richie v. Paramount Pictures Corp., 544 N.W.2d 21, 26 (Minn. 1996) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S. Ct. 2505, 2513 (1986)) (reversing this court’s reversal of summary judgment and disagreeing with its holding that a plaintiff attempting only to survive a summary judgment motion has a lesser evidentiary burden). The majority’s approach to the photographs is not, I submit, “view[ing] the evidence presented through the prism of [appellant’s] evidentiary burden.” See id.
Mere speculation, without some concrete evidence, is not enough to avoid summary judgment. Sometimes, of course, this evidence will be supplied by deposition testimony. But it must have some foundation other than mere conjecture.
Bob Useldinger & Sons, Inc., v. Hangsleben, 505 N.W.2d 323, 328 (Minn. 1993) (holding that this court “misapplied the summary judgment standard” and rejecting its view that summary judgment “was inappropriate because [an insured seed potato seller] might have spread the ring rot himself from his land to that of [the claimant] by use of contaminated machinery”).
Here, the deposition testimony fails to supply the requisite “concrete evidence.” See id. Appellant testified that the accident happened between nine in the morning and three in the afternoon, but she could not say when; that she did not see any grease on the walk when she first went past the trash enclosure that day; that she had walked past the enclosure many times during the year-and-a-half that she had lived in her apartment and never noticed any grease on the walk; and that she could not say whether the grease that allegedly caused her fall was fresh or old, or how big the grease spot was.
The owner of The Best Steakhouse testified that on three occasions she had given free food to appellant; that they had an altercation that ended with appellant threatening to sue because she was refused the loan of a bottle of Tabasco Sauce; that the owner and her husband had worked under federal inspection for 30 years and knew and enforced the sanitary regulations, telling their employees “that you never leave any grease on the ground or on the floor”; that she inspected the trash enclosure two or three times every week and never saw a full barrel of grease, grease on a barrel or on the ground, or any indication of a leaking barrel; that she looked at the sidewalk outside the enclosure twice every day and never saw any leak or stain; and that she would have cleaned it up herself if she had seen it because “we were under federal inspection, and you don’t do that.”
The owner of Cathay Chow Mein testified that one of her employees emptied grease on Tuesday mornings; that she inspected the area “[t]o check if they did it very nice and clean”; that she had not seen grease on the floor inside the trash area; that the steakhouse poured its grease into her barrel; that the barrels were wrapped in many layers of plastic when they were removed; and that she had never heard from anyone that there was grease or oil on the sidewalk outside the trash enclosure.
An employee of Steep & Brew, a restaurant that shared the trash enclosure with The Best Steakhouse and Cathay Chow Mein, testified that she worked four or five days a week and took trash out to the enclosure every day she worked; that she had seen some slippery material “in the caged-in area where the trash was kept, but nothing outside of that area”; that she had not seen grease inside the area very often, i.e., less than four times; and that there was enough space between the spilled grease and the outside wall of the trash area for her to walk past the barrels without stepping in grease.
An Environmental Recycling employee who removed the full grease barrels and replaced them with empty ones testified that he removed barrels that were more than half full; that he had never seen grease spilled in the trash area, on the sides of the barrels, or on the sidewalk around the trash area; that he had never spilled grease; and that he had no recollection of any barrel ever leaking.
Like the photographs, the testimony of appellant and the other four witnesses provides no “concrete evidence” that respondents are in any way liable for appellant’s injury. The testimony does provide concrete evidence that respondents not only had no knowledge that grease was on the sidewalk; but also they knew that grease was not on the sidewalk. But the majority claims that appellant need not show that respondents had actual or constructive knowledge of the grease on the sidewalk, citing Messner v. Red Owl Stores Inc., 238 Minn. 411, 57 N.W.2d 659, (1953), and Rinn v. Minnesota State Agric. Soc’y, 611 N.W.2d 361 (Minn. App. 2000). Both cases found the defendant not liable because of a lack of knowledge of the condition that caused the plaintiff’s injury. Messner approved the district court’s grant of a JNOV finding a grocery store not liable to plaintiff, who had slipped on a banana peel, because of lack of evidence that the store’s employees were responsible for or had constructive knowledge of banana peel. Messner, 238 Minn. at 413-15, 57 N.W.2d at 661-62. Rinn upheld summary judgment for the defendant because the plaintiff could not show how long the puddle that caused her fall had existed. Rinn, 611 N.W.2d at 365.
Because respondents did not have actual or constructive notice of the dangerous condition, they owed appellant no duty as a matter of law, and we affirm [summary judgment for respondents] on this basis.
The majority attempts to distinguish Messner and Rinn by arguing that respondents here had a duty independent of actual or constructive knowledge of the alleged dangerous condition because that condition resulted from their actions. Two points are relevant here. First, anyone who discards grease in an approved container and employs someone to dispose of that container at regular intervals cannot be required to “foresee” that the discarded material could move independently from the container to a public walkway and cause a fall; that requirement would expand the doctrine of foreseeability into the doctrine of proximate cause. “[N]egligence is tested by foresight but proximate cause is determined by hindsight.” Dellwo v. Pearson, 259 Minn. 452, 456, 107 N.W.2d 859, 862 (1961). Only through hindsight, not through foresight, can any nexus be discerned between the discarding of grease into a designated barrel in an enclosed trash area and the fall of a passerby on an adjacent sidewalk.
The majority quotes Johnson v. Evanski, 221 Minn. 323, 326, 22 N.W.2d 213, 215 (1946), and Logan v. Hennepin Ave. Methodist-Episcopal Church, 210 Minn. 96, 98, 297 N.W. 333, 334 (1941), both holding that when a defendant could not reasonably foresee that an act might result in injury to someone else, then the act is not negligent. The Best Steakhouse and Cathay Chow Mein could not reasonably have foreseen that discarding cooking grease into a disposal barrel in an enclosed area could result in injury to a pedestrian on the adjacent sidewalk.
Second, even assuming that the majority is correct in its holding that respondents had a duty “to undertake reasonable inspections of the sidewalk to discover possible dangerous conditions,” there is no evidence that respondents breached this duty. The owner of The Best Steakhouse testified that she inspected the sidewalk twice a day, every day, and saw no grease or other trash on it. The owner of Cathay Chow Mein testified that she inspected the trash area every day to be sure the grease was properly emptied and saw no grease on the barrels or the ground. The employee of Environmental Recycling who emptied the barrels testified that he had seen no leaks or spillage in or outside the area. Thus, there is a wealth of concrete evidence that respondents inspected the sidewalk and found it free of grease.
Finally, the majority asserts that appellant “need not identify” who deposited the grease in which she allegedly slipped. But without such identification, there can be no liability, and appellant offers no evidence that would enable a jury to make the identification. The majority relies on Computer Tool & Eng’g v. Northern States Power Co., 453 N.W.2d 569 (Minn. App. 1990), review denied (Minn. May 23, 1990), to argue that
[b]ecause the evidence suggests that each respondent was responsible, in some way, for the condition of the trash enclosure, the issue of each respondent’s fault should be submitted to a jury.
But it was not the condition of the trash enclosure that even allegedly caused appellant’s fall; it was the grease on the sidewalk. The condition of the trash enclosure is irrelevant; appellant did not fall inside the trash enclosure. No respondent can be liable for appellant’s fall unless some act of that respondent was a proximate cause of the grease in which she fell being on the sidewalk. Moreover, the Computer Tool holding on which the majority relies concerns the submission to a jury of a plaintiff’s negligence in failing to take precautions; that case does not concern the submission of the negligence of potentially non-liable defendants.
The majority divines genuine issues of material fact where there are none. I see neither any genuine issue of material fact nor any error of law precluding the district court’s summary judgment. The district court was eminently correct and should be affirmed.
 Appellant also sued a third restaurant who used the trash enclosure, Steep & Brew. Appellant has settled her claim against Steep & Brew, and it has been dismissed from this action.
 The dissent argues that these photographs cannot be offered to defeat summary judgment because they are inadmissible as evidence. The photographs are part of the record, and no objections appear to have been made by respondents regarding their admissibility. This court thus may consider the photographs for purposes of reviewing this grant of summary judgment. See, e.g., Anderson v. Twin City Rapid Transit Co., 250 Minn. 167, 185-86, 84 N.W.2d 593, 605 (1957). Moreover, the photographs likely would be admissible as important evidence because they accurately portray the general appearance of the trash enclosure and are helpful as an aid to appellant’s verbal description of the scene. See Bimberg v. Northern Pac. Ry. Co., 217 Minn. 187, 196-97, 14 N.W.2d 410, 415 (1944).
 A footnote states that “[appellant] believe[s] the pictures show evidence of grease running out from under the trash enclosure and onto the city sidewalk.” Appellant offers no support anywhere else in the record for this belief and, given her lack of knowledge about the pictures, her belief of what they show is not dispositive. Moreover, even if the substance were grease, the fact that grease flows across a sidewalk in summer temperatures is not dispositive of what it would have done in early March temperatures.