This opinion will be unpublished and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
Lanesboro Golf & Country Club,
Filed May 22, 2001
Fillmore County District Court
File No. C5000181
Peter C. Sandberg, Kari Stonelake-Hopkins, Dunlap & Seeger, P.A., 206 South Broadway, Suite 505, P.O. Box 549, Rochester, MN 55903 (for appellant)
Mark A. Pilney, Judith Mlinar Seeberger, Reding & Pilney, 600 Inwood Avenue North, Suite 140, Oakdale, MN 55128 (for respondent)
Considered and decided by Amundson, Presiding Judge, Klaphake, Judge, and Willis, Judge.
U N P U B L I S H E D O P I N I O N
Respondent Lanesboro Golf & Country Club (LGCC) owns and operates a nine-hole golf course in Lanesboro. In August 1997, appellant James Schneider slipped and fell on a golf-cart path at the LGCC golf course, injuring his knee. In March 2000, he filed a complaint alleging that LGCC “negligently, carelessly and unlawfully built and maintained” the path and that “its negligence was a direct cause of his fall.”
Throughout the golf course, the path is surfaced with used conveyor belts. Schneider alleges that this surface is dangerously slippery and that its slipperiness is compounded by the path’s steep angle perpendicular to traffic. At his deposition, Schneider testified that on the day of the accident, he decided to rent a golf cart because he knew that the course was “very hilly.” He also stated that during the first three holes of play, he observed that the golf course was hilly and that the path followed the contour of the course and was sloped in some areas. When the accident occurred, Schneider was returning to the golf cart, which was parked on one side of the path. As he stepped onto the path, his foot “slipped sideways and [his] knee collapsed.”
Based on an investigation of the section of path where the accident occurred, Schneider’s expert, James McDonagh, concluded that the slipperiness of the used conveyor belts made them “unsafe to pedestrian traffic” and that the path’s steep perpendicular angle made it “even less safe.” He also stated that the path’s angle perpendicular to traffic violated Uniform Building Code (UBC) standards for ramps. McDonagh stated that a person approaching a cart parked on the path would not notice its steep perpendicular angle because the narrow width of the path made the angle “obscure and hard to detect,” but he also stated that the “hazardous conditions” presented by the path’s surface and angle were “readily observable and obvious.”
Gary Eide, the manager of the LGCC golf course, testified at his deposition that visitors to the golf course are not cautioned to be careful when walking on the path. He also stated that in his five years managing the golf course, there had been no complaints about the path and that he was not aware of anyone other than Schneider ever slipping on the path.
In May 2000, the district court granted LGCC’s motion for summary judgment. Schneider appeals.
On appeal from summary judgment, the reviewing 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). The 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). In a negligence action, a defendant is entitled to summary judgment “when the record reflects a complete lack of proof on an essential element of the plaintiff’s claim.” Id. (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).
1. Duty to Warn
Schneider argues that the district court erred in determining that LGCC had no duty to warn him of the danger associated with the golf-cart path. Whether one owes another a legal duty presents “a question of law to be determined by the court.” Zimmer v. Carlton County Co-op Power Ass’n, 483 N.W.2d 511, 513 (Minn. App. 1992), review denied (Minn. June 10, 1992). Landowners have a duty to protect invitees from harm, but this duty is not absolute. Baber v. Dill, 531 N.W.2d 493, 496 (Minn. 1995). The Minnesota Supreme Court has adopted section 343A of the Restatement (Second) of Torts, which provides:
A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.
Peterson v. W.T. Rawleigh Co., 274 Minn. 495, 496-97, 144 N.W.2d 555, 557 (1966) (quoting Restatement (Second) of Torts § 343A (1965)).
Schneider argues that the district court erred in concluding that the danger posed by the surface and path’s steep perpendicular angle was known to him or obvious. But as the district court noted, Schneider slipped at the fourth hole; he had already walked on the path during the first three holes of play and was therefore aware of its surface. He was also aware before beginning play that the golf course was “very hilly,” and he observed the hilly nature of the course during play. Viewing the evidence in the light most favorable to Schneider, there is no genuine issue of material fact as to whether the danger presented by the path was known to him or obvious.
Schneider also argues that, even if the danger was known to him or obvious, LGCC had a duty to warn him because it should have anticipated the harm. Even where a danger is obvious, a landowner “has a duty to warn if harm to an invitee should be anticipated despite the obviousness of the danger.” Baber, 531 N.W.2d at 496. But the landowner has no duty to warn an invitee “where the anticipated harm involves dangers so obvious that no warning is necessary.” Id. The rationale underlying this rule is that “no one needs notice of what he knows or reasonably may be expected to know.” Id. (quotation omitted). The test for whether a danger is so obvious that no warning is necessary “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) (citation omitted), review denied (Minn. Mar. 29, 1995); see also Lawrence v. Hollerich, 394 N.W.2d 853, 856 (Minn. App. 1986) (holding steepness of hill so obvious that no warning was required), review denied (Minn. Dec. 17, 1986). Here, LGCC had no reason to anticipate that Schneider would not be aware of the surface or perpendicular angle of the path, since both were visible. Furthermore, since at least 1995, there had been no other accidents involving the path, and LGCC had received no complaints about the path.
Because the surface and perpendicular angle of the path were known to Schneider or were obvious, and because any potential danger was visible, the district court did not err in determining that LGCC had no duty to warn Schneider about the path.
2. Breach of Duty of Care
Schneider argues that the district court erred in granting summary judgment because there are genuine issues of material fact as to whether LGCC breached its duty of care. A property owner has a duty to use reasonable care to prevent an invitee “from being injured by conditions on the property that represent foreseeable risk of injury.” Rinn v. Minnesota State Agr. Soc., 611 N.W.2d 361, 364 (Minn. App. 2000) (citing Hanson v. Christensen, 275 Minn. 204, 213, 145 N.W.2d 868, 874 (1966)). Thus, an owner has a duty
to acquaint himself with and to have knowledge of the condition of his premises, thereby being able to warn his invitees or patrons of any dangers known to him * * * .
Hanson, 275 Minn. at 210, 145 N.W.2d at 872. But this duty only applies to dangers that are not “open and obvious.” Id. As we concluded above, because the surface and perpendicular angle of the path were either known to Schneider or were obvious, LGCC had no duty to warn him, and thus there is no issue of material fact as to whether LGCC breached such a duty.
3. Negligence Per Se
Schneider argues that the district court erred in granting summary judgment to LGCC because his expert’s allegation that the path was in violation of the UBC supports a determination that LGCC was negligent per se. To prove that a violation of a statute or ordinance constitutes negligence per se, a plaintiff must show:
(1) the breach of the statute or ordinance harmed persons intended to be protected by the statute or ordinance, and (2) the harm suffered is the type of harm the legislature intended to prevent.
Bigos v. Kluender, 611 N.W.2d 816, 820 (Minn. App. 2000) (citation omitted); review denied (Minn. July 25, 2000). The UBC has been adopted in the Minnesota State Building Code (MSBC). See Minn. Stat. §§ 16B.59-.735 (2000) (granting Commissioner of Administration authority to establish a state building code by rule); Minn. R. 1305.0010 (1999) (adopting UBC into MSBC by reference). Violation of a building code may meet the test of negligence per se. See Raymond v. Baehr, 282 Minn. 109, 113, 163 N.W.2d 51, 54 (1968) (holding that violation of city building code constituted negligence per se); Thies v. St. Paul's Evangelical Lutheran Church, 489 N.W.2d 277, 280 (Minn. App. 1992) (noting violation of a building code can constitute negligence per se when it results in harm building code was designed to prevent).
Both the MSBC and UBC apply to the “construction, alteration, moving, demolition, repair, and use of any building or structure * * * .” Minn. R. 1300.2300 (1999); 1994 UBC § 101.3 (emphasis added). While neither the MSBC or UBC defines “building” or “structure,” a review of both codes reveals no provisions that could apply to a golf-cart path. The provision of the UBC cited by Schneider’s expert, which addresses the slope of ramps, applies only to ramps inside buildings or used as exits from buildings. 1994 UBC § 1007.1. Thus, Schneider failed to show that persons harmed on a golf-cart path are persons intended to be protected by the MSBC or UBC or that his injury was the type of harm that the codes were intended to prevent. Nor did Schneider allege that LGCC violated any other state statute or municipal ordinance. The district court did not, therefore, err in granting summary judgment on the issue of negligence per se.