This opinion will be unpublished and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

C1-01-541

 

Kathryn J. Dowling,

Appellant,

 

vs.

 

Edina Pet Hospital, P.A.,

Respondent.

 

Filed August 14, 2001

Affirmed

Willis, Judge

 

Hennepin County District Court

File No. PI0010727

 

William Starr, Charles A. Beckjord, 208 Grain Exchange Building, 400 South Fourth Street, Minneapolis, MN  55415 (for appellant)

 

Cara J. Debes, John M. Kennedy, Jr., Jardine, Logan & O’Brien, PLLP, 2100 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN  55101 (for respondent)

 

            Considered and decided by Hanson, Presiding Judge, Willis, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant challenges the district court’s grant of summary judgment to respondent pet hospital on her claims that respondent negligently maintained and failed to warn her of the danger presented by its front entranceway, where she injured herself.  Because there are no genuine issues of material fact and because the district court did not err in its application of the law by concluding that any danger was open and obvious and respondent owed no duty to appellant, we affirm.

FACTS

            In December 1998, appellant Kathryn Dowling went to respondent Edina Pet Hospital (EPH) to have her terminally ill cat euthanized.  The receptionist told Dowling that the veterinarian was at lunch and that Dowling would have to return later in the day to make an appointment.  As Dowling stepped out of EPH, she fell and injured her foot.  In October 1999, she filed a complaint alleging that EPH “negligently and carelessly maintained its front entranceway * * * and failed to inspect and repair said entranceway as to create a danger,” and neglected to warn her of this “dangerous condition.” 

            The entranceway to EPH consisted of a concrete stoop with steps on both sides.  The steps led to a sidewalk that ran parallel to the building.  At the end of the stoop opposite the entrance to EPH was an asphalt ramp to the parking lot.  At her deposition, Dowling testified that she parked close to the entrance and walked up the ramp into EPH.  She also testified that upon exiting EPH with her cat in her arms, she turned and walked to the left toward her car instead of walking straight down the ramp and fell when she stepped off the side of the ramp, where there was jagged asphalt but no step.

            The district court granted EPH’s motion for summary judgment, and Dowling appeals.

D E C I S I O N

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).  Although appellate courts view the evidence in the light most favorable to the party against whom judgment was granted, summary judgment is appropriate against a party who fails to establish the existence of an element essential to its case.  Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995). 

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 that (1) a duty of care existed, (2) the duty was breached, (3) an injury was sustained, and (4) breach of the duty proximately caused the injury.  Id.  Whether a duty exists is a question of law, which appellate courts review de novo.  Larson v. Larson, 373 N.W.2d 287, 289 (Minn. 1985).

            Dowling argues that EPH was negligent in maintaining its entranceway and that it was under a duty to warn her of the potential danger.  The district court concluded that because the difference in elevation between the ramp and the ground and the unguarded edge of the asphalt ramp were open and obvious dangers, EPH had no duty to warn Dowling.

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)); see also Baber, 531 N.W.2d at 496 (citation omitted) (noting that landowner has no duty to warn an invitee “where the anticipated harm involves dangers so obvious that no warning is necessary.”).  The rationale underlying this rule is that “no one needs notice of what he knows or reasonably may be expected to know.”  Barber, 531 N.W.2d at 496 (quotation omitted).  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), review denied (Minn. Mar. 29, 1995).

            Dowling testified at her deposition that she had been to EPH before and that, on the day of the accident, she had entered EPH without incident by using the ramp.  See Johnson v. R.E. Tapley, Inc., 272 Minn. 19, 24, 136 N.W.2d 538, 542 (1965) (concluding that entering and exiting through same doorway can show knowledge of open and obvious danger).

She also testified that (1) the steps leading off of the stoop are “definitely” obvious; (2) the sun was shining, “it wasn’t snowing or raining,” and it was a “nice winter day”; and (3) there was no ice on the stoop or ramp.  Id. at 23, 136 N.W.2d at 542 (holding that, absent other factors such as poor illumination, ordinary changes in elevation “do not excuse the failure to see what is in plain sight.”).  Moreover, the record contains a statement by EPH’s receptionist that there had been no other reported accidents involving use of the stoop and asphalt ramp at EPH.

Any danger posed by the stoop and ramp was so open and obvious that EPH had no duty to warn Dowling.  Thus, EPH was not negligent as a matter of law, and the district court did not err in granting summary judgment.

Affirmed.