This opinion will be unpublished and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

C2-00-1736

 

Maria Mercedes Ramirez,

Appellant,

 

vs.

 

MarkeTown Foods,

Respondent, 

 

Belle Mar Mall Limited Partnership,

Respondent.

 

Filed June 19, 2001

Affirmed

Lansing, Judge

 

Blue Earth County District Court

File No. C7991084

 

Ruth M. Harvey, Chesley, Kroon, Chambers & Harvey, 75 Teton Lane, Mankato, MN 56002-0327 (for appellant)

 

Nancy C. Coon, 6131 Blue Circle Drive, Eden Prairie, MN 55344 (for respondent MarkeTown Foods)

 

Mark A. Gwin, Andrea E. Reisbord, Cousineau, McGuire & Anderson, Ch., 600 Travelers Express Tower, 1550 Utica Avenue South, Minneapolis, MN 55416-5318 (for respondent Belle Mar Mall Limited Partnership)

 

            Considered and decided by Lansing, Presiding Judge, Anderson, Judge, and Foley, Judge.*

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

The district court granted summary judgment dismissing Maria Ramirez’s personal-injury claim against a food store and a shopping mall.  Ramirez alleged that she slipped and fell when she stepped on a piece of lettuce in a puddle of water just outside the food store that is located in an enclosed mall.  In this appeal, Ramirez challenges the district court’s ruling that she failed to produce adequate evidence that the food store created a dangerous condition or had notice of a dangerous condition by overwatering and inadequately bagging the lettuce sold in the store.  We agree with the district court’s conclusion that the evidence is insufficient to withstand summary judgment, and we affirm. 

FACTS

             Maria Ramirez went to MarkeTown Foods to purchase ice cream cones in August 1996.  She walked through Belle Mar Mall, entered MarkeTown Foods, and remained in the store about ten minutes.  She left MarkeTown Foods through the same door that she had entered.  When she had one foot still inside the store and one foot outside the store, the foot in the mall went out from under her and she fell down.  After she fell, she looked around and saw a puddle of clear water, about 7-8 inches in diameter, with a green lettuce leaf, about 2 inches in diameter, in the center of the puddle.  She also found a small piece of lettuce on her shoe.  In her deposition, Ramirez stated that the water and lettuce caused her foot to slip out from under her and resulted in her fall. 

            Ramirez produced no evidence to show how long the lettuce and water was on the floor.  She had not seen any lettuce or water on the floor ten minutes earlier when she entered the store using the same entrance.  She stated that when she entered the store she was walking slowly and carefully and looking at the floor in front of her.

            The mall common areas were cleaned once each day, between 7 p.m. and 10 p.m.  MarkeTown employees also checked the common area when they went from the store to the mall to use the restrooms.  Neither the store nor the mall scheduled any other regular inspection of the area.  The store policy was to clean up any breakage or spillage immediately upon discovery. 

            Ramirez sued MarkeTown for injuries sustained in the fall, claiming MarkeTown  was negligent in maintaining the floor outside its mall entrance because it allowed water and produce waste to accumulate on the floor.  Ramirez later amended her complaint to include Belle Mar Mall.  MarkeTown and Belle Mar, relying on a series of indemnity agreements, brought reciprocal cross-claims. 

            Both MarkeTown and Belle Mar moved for summary judgment, claiming that the evidence failed to support a negligence claim because Ramirez had not produced evidence, as required under Messner v. Red Owl Stores, 238 Minn. 411, 57 N.W.2d 659 (1953), that MarkeTown and Belle Mar had either created the dangerous condition or had notice of the condition.  Ramirez argued in opposition that MarkeTown’s overwatering the lettuce display and inadequately bagging the overwatered lettuce made it foreseeable that lettuce and water would be spilled near the store exit, and thus MarkeTown and its employees created a dangerous condition for customers entering and leaving the store.

In support of her argument, Ramirez submitted her own affidavit stating that on prior visits to MarkeTown she had observed that the lettuce displayed in the store was either frequently sprayed with water or surrounded by ice.  Her affidavit further stated that at times Ramirez had bought lettuce that was very wet and needed to be double-bagged, but, unless specifically asked, the checkout personnel often neglected to double-bag the lettuce.

            The district court concluded that the evidence was insufficient to support either that MarkeTown or Belle Mar were negligent or that they had constructive notice of lettuce or water on the mall floor.  Ramirez appeals the summary judgment dismissing her claims. 

D E C I S I O N

On appeal from summary judgment, we determine whether there are any genuine issues of material fact and whether the district court erred in its application of the law.  Wallin v. Letourneau, 534 N.W.2d 712, 715 (Minn. 1995).  A prima facie case of negligence requires evidence of a duty owed by the defendant, a breach of that duty, causation, and injury.  Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 157 (Minn. 1982).  When a party has failed to produce sufficient evidence on an essential element of a claim, it is proper to grant summary judgment against the claim.  See Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1996). 

A property owner has a duty to use reasonable care to prevent persons from being injured by property conditions that present a foreseeable risk of injury.  Hanson v. Christensen, 275 Minn. 204, 213, 145 N.W.2d 868, 874 (1966).  But even though landowners owe persons a duty to keep and maintain their premises in a reasonably safe condition, they are not insurers of an entrant’s safety.  Wolvert v. Gustafson, 275 Minn. 239, 241, 146 N.W.2d 172, 173 (1966).  A landowner is liable in negligence, however, if a dangerous condition results from the landowner’s or his employees’ actions or if he had actual or constructive knowledge of the dangerous condition.  Messner,238 Minn. at 413, 57 N.W.2d at 661.  To prevail on the negligence claim, the plaintiff “[h]as the burden of proving either that defendant caused the dangerous condition or that it knew, or should have known, that the condition existed.”  Id. at 415, 57 N.W.2d at 662.  Speculation on the cause or duration of the dangerous condition is insufficient evidence of negligence to withstand summary judgment against the claim.  Rinn v. Minnesota State Agric. Soc’y, 611 N.W.2d 361, 365 (Minn. App. 2000).

The district court concluded that the evidence did not adequately support Ramirez’s claim that MarkeTown and Belle Mar either created the condition or had notice of the condition.  After a close examination of the record, we agree.  Ramirez has produced no competent, non-speculative evidence that an employee of MarkeTown Foods or Belle Mar Mall spilled the water and lettuce on the floor.  Nor has she produced evidence that the lettuce or water on the floor long enough to establish that respondents had constructive notice of the condition.  See Anderson v. St. Thomas More Newman Ctr., 287 Minn. 251, 253-54, 178 N.W.2d 242, 243-44 (1970) (proof that dangerous condition continued for extended time period may establish constructive notice of the hazard).  The undisputed evidence demonstrates that Ramirez, walking carefully and looking at the ground, entered through the same doorway ten minutes before she exited and fell, and she did not see the lettuce and water on entering.  Ramirez has provided no other evidence that would support the element of constructive notice of the condition or that MarkeTown caused it.

Ramirez argues she has satisfied the “caused or created” element with her affidavit that MarkeTown sold overwatered and inadequately bagged lettuce to customers and thus created a foreseeable hazard.  Alternatively, Ramirez claims that MarkeTown had constructive notice that their display and packaging methods could result in a future hazard, and this knowledge was sufficient to present a prima facie case.  

No Minnesota case has addressed whether an injured party can prove that a shopkeeper “caused or created” a dangerous condition by producing evidence that the shopkeeper displayed or packaged its goods in a negligent manner.  A “negligent display or packaging” theory is generally consistent with the common law negligence principle that the conduct of several actors can combine to cause one accident, with each act of negligence being a direct cause or substantial factor.  See Frank v. Stiegler, 250 Minn. 447, 455, 84 N.W.2d 912, 918 (1957); see also 4 Minnesota Practice, CIVJIG 27.15 (1999).  Thus, assuming an injured party produces competent evidence to support that a shopkeeper breached its duty to maintain its premises in a reasonably safe manner by negligently displaying or packaging goods, and this action was a substantial factor in bringing about the accident, an injured party has shown genuine issues of fact for trial.

Other jurisdictions have recognized this type of claim as a logical development in the law of shopkeeper liability and equated the shopkeeper’s creating a reasonable probability of a dangerous condition to the proof requirement of constructive or actual notice of the specific hazard.  See, e.g., Bloom v. Fry’s Food Stores, Inc., 636 P.2d 1229, 1233 (Ariz. Ct. App. 1981) (shopkeeper’s stacking loose grape bunches two to three feet high obviates proof that shopkeeper knew of specific hazard of grapes on floor next to display); Lingerfelt v. Winn-Dixie Tex., Inc., 645 P.2d 485, 488-89 (Okla. 1982) (shopkeeper sold strawberries “heaped high in uncovered containers” despite manager’s recognition that safety was one reason strawberries had been covered and employees could have covered the strawberries).

But even assuming that shopkeeper liability in Minnesota would include the negligent display and packaging of products, Ramirez has not produced evidence sufficient to support this theory.  Ramirez has not demonstrated that MarkeTown’s method of watering its lettuce was negligent.  Neither has she shown that the checkout personnel failed to adequately bag the lettuce or that the lettuce in the puddle of water that caused her to slip resulted from overwatered and inadequately bagged lettuce.  As a matter of law, the evidence in this case is insufficient to prove these elements.

            The district court did not err in granting summary judgment in favor of MarkeTown Foods and Belle Mar Mall.

            Affirmed.

 



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