This opinion will be unpublished and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
Sherie Bredvick, as Trustee for the next
of kin of Tyler Bredvick,
City of Morris,
Filed February 5, 2002
Stevens County District Court
File No. C500120
Michael M. Fluegel, Fluegel, Helseth, McLaughlin, Anderson & Brutlag, Chtd., 215 Atlantic Plaza, P.O. Box 527, Morris, MN 56267-0527 (for appellant)
Jerome R. Klein, Candlin & Heck, 3800 West 80th Street, Suite #1500, Bloomington, MN 55431-4429 (for respondent)
Marilyn J. Conklin, Robins, Kaplan, Miller & Ciresi, 800 LaSalle Avenue, Suite 2800, Minneapolis, MN 55402-2015 (for amicus curiae Minnesota Trial Lawyers Association)
Considered and decided by Willis, Presiding Judge, Crippen, Judge, and Anderson, Judge.
G. BARRY ANDERSON, Judge.
In this wrongful-death action arising out of a swimming-pond accident, the district court awarded summary judgment to respondent based on recreational-use immunity. Appellant claims the district court erred by granting summary judgment on the basis of recreational-use immunity and claims that respondent’s duty should be measured by the child-trespasser standard rather than the adult-trespasser standard. See Restatement (Second) of Torts §§ 335, 339 (1965) (setting out elements for adult-trespasser and child-trespasser standards, respectively). Although our decision is based on grounds other than those relied on by the district court, we agree that respondent is protected by recreational-use immunity, and we affirm.
In 1967, the City of Morris (respondent) acquired the Pomme de Terre Park from the State of Minnesota. In 1981, respondent built a swimming pond in the park. Respondent used well water, instead of river water, and sand from a nearby gravel pit, to create the pond.
The parties agree that the well water contained a large quantity of calcium carbonate, causing the water in the pond to be turbid; even the pond’s shallow end was murky. Respondent tried to solve the turbidity problem by replacing the sand in the pond. It does not appear that the problem has ever been solved.
On July 17, 1997, the day this tragedy occurred, Sherie Bredvik (appellant) dropped off her two sons, Tyler (age 13) and her younger son Tore, at the pond. Her children had used the pond previously. Appellant admitted that she knew the pond was murky because her children had told her of the pond’s condition.
Three lifeguards were on duty the day Tyler Bredvik drowned. A fourth lifeguard was sick and did not work as scheduled. Because one of the lifeguards operated the concession stand, only two lifeguards watched the beach and pond.
After Tyler Bredvik was missed, a search was conducted and Tyler’s body was found in three to four feet of water. According to appellant, the water was so murky that she could not see her hand under the water. Appellant, as Tyler’s next of kin, brought this action against respondent for wrongful death and negligence.
Respondent moved for summary judgment, asserting that recreational-use immunity shielded the city from any liability for Tyler’s death. Appellant argued that the child-trespasser standard for determining respondent’s duty should be applied and that respondent breached this standard, thus precluding summary judgment.
The district court found the adult-trespasser standard (Restatement (Second) of Torts § 335) was the proper standard to use in determining the duty owed by respondent to Tyler Bredvik. The district court applied the adult-trespasser standard, determined that there were no issues of material fact, and granted summary judgment in favor of respondent. This appeal followed.
“The application of immunity is a question of law, which [this] court reviews de novo.” Gleason v. Metro. Council Transit Operations, 582 N.W.2d 216, 219 (Minn. 1998) (citation omitted). Generally, municipalities are liable for their torts. See Minn. Stat. § 466.02 (1996). But municipalities are immune from
[a]ny claim based upon the * * * operation * * * of any property owned * * * by the municipality that is intended or permitted to be used as a park, as an open area for recreational purposes, or for the provision of recreational services * * * if the claim arises from a loss incurred by a user of park and recreation property or services. Nothing in this subdivision limits the liability of a municipality for conduct that would entitle a trespasser to damages against a private person.
Minn. Stat. § 466.03, subd. 6e (1996) (emphasis added). This court has held that an artificially created swimming pond is an “outdoor recreation system” under Minn. Stat. § 86A.04 (1990). See Zacharias v. Minnesota Dep’t of Natural Res., 506 N.W.2d 313, 317 (Minn. App. 1993). It is logically consistent that the swimming pond at issue here falls within the confines of Minn. Stat. § 466.03, subd. 6e, as well.
Nor does the artificial nature of the surrounding area preclude immunity. “Case law also supports a determination that an artificially created condition may remain within the immunity protection afforded by * * * statute.” Id. (citations omitted) (referring to Minn. Stat. § 3.736, subd. 3(h) (1990)); see also Johnson v. Washington County, 506 N.W.2d 632, 636 (Minn. App. 1993) (holding that child’s use of artificial swimming pond allowed application of recreational-use immunity), aff’d, Johnson v. Washington County, 518 N.W.2d 594 (Minn. 1994).
But this grant of immunity is not limitless. A municipality “owes the same duty to recreational users of its facilities that a private person owes to trespassers.” Lundstrom v. City of Apple Valley, 587 N.W.2d 517, 519 (Minn. App. 1998); see also Minn. Stat. § 466.03, subd. 6e; Johnson, 506 N.W.2d at 636.
Minnesota law provides at least two standards for evaluating the duty municipalities owe to users of recreational facilities:
Section 335, the general provision on the duty owed to trespassers, establishes a limited standard of care. In contrast, section 339 imposes a heightened standard of care with respect to child trespassers.
Canada by and through Landy v. McCarthy, 567 N.W.2d 496, 505 (Minn. 1997) (citations omitted).
The district court held that the child-trespasser standard, found in Restatement (Second) of Torts § 339, did not apply as a matter of law because when the legislature adopted another immunity provision in Minn. Stat. § 466.03, subd. 6f(c) (1990 & Supp. 1991), it specifically used the term “trespassing child[.]” The district court concluded that the legislature could not have intended the child-trespasser standard to be the basis for an exception to recreational-use immunity, which had been updated in 1986 and did not use the term “trespassing child.”
The district court reasoned that because the legislature had not used the term “trespassing child” when it enacted subdivision 6e, it must have specifically intended the adult-trespasser standard, found in Restatement (Second) of Torts § 335, to be the only applicable exception to recreational-use immunity. The district court then concluded that respondent was entitled to recreational-use immunity because appellant could not establish that respondent had violated the adult-trespasser standard.
We conclude that the district court erred as a matter of law in holding that the child-trespasser standard may never be applied as an exception to recreational-use immunity. This court has specifically held that the child-trespasser applies as an exception, at least in limited circumstances:
Minnesota adopted section 339 [the child-trespasser standard] in place of the attractive nuisance doctrine in order to abolish the idea of invitation * * * as condition precedent to liability in the case of young children injured.
Fear v. Indep. Sch. Dist. 911, 634 N.W.2d 204, 214 (Minn. App. 2001) (holding child-trespasser standard should be applied on remand, where child was injured on school playground) (quotation omitted).
In Green-Glo Turf Farms, Inc. v. State, 347 N.W.2d 491, 494 (Minn. 1984), the supreme court recognized that the duty standards set out in Restatement (Second) of Torts §§ 333-339 were exceptions to recreational-use immunity. Subsequent cases have also specifically recognized that the child-trespasser standard may be an exception to recreational-use immunity, but most of these cases ultimately determined that the adult-trespasser standard was the applicable exception. See Johnson, 518 N.W.2d at 599 (holding child-trespasser standard inapplicable to child who drowned at pool while under adult supervision); see also Sirek v. Dep’t of Natural Res., 496 N.W.2d 807, 810-11 (Minn. 1993) (holding that child accompanied by parents could not recover under section 339 because duty rests on accompanying adult to supervise child); Schaffer v. Spirit Mountain Recreation Area Auth., 541 N.W.2d 357, 360 (Minn. App. 1995) (finding child-trespasser standard did not apply to child who struck visible barrel while skiing because condition was one that should be “appreciated by children who are allowed to ski without adult supervision”); Zacharias, 506 N.W.2d at 319 (stating child-trespasser standard is inapplicable when supervised child drowns in swimming pond).
The district court’s conclusion that the child-trespasser standard may never be used as an exception to recreation-use immunity was erroneous.
We examine first whether the child-trespasser standard set forth in section 339 of the Restatement (Second) of Torts applies as an exception to recreational-use immunity in the operation of a municipal swimming pond. “The scope of respondents’ legal duty is a question of law for [this] court to decide.” Zacharias, 506 N.W.2d at 319 (citing Larson v. Larson, 373 N.W.2d 287, 289 (Minn. 1985)).
While appellant argues that holding the municipality to the higher child-trespasser standard is appropriate, the supreme court has declined to do so in connection with a drowning in a public swimming pool. See, e.g., Johnson, 506 N.W.2d at 638; Johnson, 518 N.W.2d at 599; Zacharias, 506 N.W.2d at 319.
Furthermore, to use the child-trespasser standard, as urged by appellant, would have the inevitable effect of requiring respondent to childproof its swimming pond. Both Sirek and Zacharias reject this mandate. Sirek, 496 N.W.2d at 811; see also Zacharias, 506 N.W.2d at 319.
Section 339 and its annotations suggest that the child-trespasser standard is not the appropriate standard to apply when accidents at municipal swimming facilities are at issue.
Restatement (Second) of Torts § 339 states:
A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if
(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.
Two annotations to this section are helpful. Comment j states:
There are many dangers, such [as] fire and water, or of falling from a height, which under ordinary conditions may reasonably be expected to be fully understood and appreciated by any child of an age to be allowed at large. To such conditions the rule stated in this Section ordinarily has no application, in the absence of some other factor creating a special risk that the child will not avoid the danger, such as the fact that the condition is so hidden as not to be readily visible, or a distracting influence which makes it likely that the child will not discover or appreciate it.
Restatement (Second) of Torts § 339 cmt. j. Illustration 6 states:
A has on his land a small artificial pond in which, to A’s knowledge, children of the neighborhood frequently trespass and swim. A takes no precautions of any kind. B, a boy ten years old who cannot swim, trespasses on A’s land, enters the pond, and is drowned. A is not liable to B.
Restatement (Second) of Torts § 339 illus. 6.
Section 339(c) requires that children not “realize the risk involved in intermeddling with [the dangerous condition] or in coming within the area made dangerous by it.” Restatement (Second) of Torts § 339(c). But as comment j to the section makes apparent, there are certain dangers that children of even a minimal age and maturity are held to appreciate. One of these is the danger of water. Tyler was old enough to appreciate the danger of drowning, as was the child in Johnson.
As the supreme court recognized in Davies v. Land O’Lakes Racing Ass’n, 244 Minn. 248, 255, 69 N.W.2d 642, 647 (1955), even under section 339,
a possessor of land will not ordinarily be held liable for injuries occurring in ordinary, natural, or artificial bodies of water that are free from traps or concealments.
(Emphasis added.) The supreme court held further that even artificial bodies of water do not constitute unreasonable risks because a child can appreciate the dangers associated with them. Id. It can hardly be said that the murkiness of the water was a trap or was concealed. Sherie Bredvik admitted noticing the nature of the water immediately upon entering the pond.
Based on case law and an analysis of section 339 and its annotations, we conclude that the child-trespasser standard set out in section 339 does not apply as an exception for the purposes of determining whether respondent-municipality is protected by recreational-use immunity in the operation of its swimming pond.
Since we have rejected the child-trespasser standard as an exception to recreational-use immunity in this case, although for reasons different from those advanced by the district court, we turn next to whether respondent, in its operation of the municipal swimming pond, failed to meet the adult-trespasser standard and thus forfeited the shield of recreational-use immunity.
No genuine issue of material fact exists “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (alteration in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986)). “[T]he party resisting summary judgment must do more than rest on mere averments.” Id. at 71. A genuine issue for trial must be established by “substantial evidence.” Id. at 69-70 (quoting Murphy v. Country House, Inc., 307 Minn. 344, 351, 240 N.W.2d 507, 512 (1976)).
The district court found that
[u]tilizing [the] § 335 criteria * * * the city would have no liability to trespassers for the condition of the swimming pond. Therefore, the city is entitled to recreational use immunity for the claims of the plaintiff and summary judgment is appropriate.
Restatement (Second) of Torts § 335 provides:
A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area of the land, is subject to liability for bodily harm caused to them by an artificial condition on the land, if
(a) the condition
(i) is one which the possessor has created or maintains and
(ii) is, to his knowledge, likely to cause death or seriously bodily harm to such trespassers and
(iii) is of such a nature that he has reason to believe that such trespassers will not discover it, and
(b) the possessor has failed to exercise reasonable care to warn such trespassers of the condition and the risk involved.
We conclude that respondent did not violate the adult-trespasser standard of care, even though the pond was an artificial condition, because there are no material facts suggesting that the artificial condition was hidden and thus respondent was entitled to recreational-use immunity. See Restatement (Second) of Torts § 335(a)(iii); Lishinski v. City of Duluth, 634 N.W.2d 456, 456-57 (Minn. App. 2001) (holding that summary judgment is not appropriate when material facts are present concerning allegedly hidden condition), review denied (Minn. Jan. 15, 2002).
The district court found the Pomme de Terre pond was an artificial condition, and there is little doubt that the district court’s conclusion was correct. Although respondent argues that the condition here was not artificial and cites Johnson, a landscape architect hired by respondent concluded that the condition of the Pomme de Terre park pond differed from the Lake Elmo Reserve Pool in Johnson because of the excessive calcium carbonate. The expert in the present controversy stated that the amount of calcium carbonate was “so extraordinary that I literally took samples of that material back [to the lab] to find out what it was.” We conclude, therefore, that under section 335 the Pomme de Terre pond is an artificial condition.
But the condition of the water in the swimming pond was not hidden.
[A] landowner will be liable only for failing to exercise reasonable care to warn trespassers about hidden, artificial dangers created or maintained by the landowner.
Sirek, 496 N.W.2d at 810 (citation omitted). This court also recognized the hidden-condition requirement in Johnson, stating:
Moreover, the conditions at the [swimming pond] are not of such a nature that trespassers will fail to discover them. See Restatement (Second) of Torts § 335(a)(ii), (iii); Sirek, 496 N.W.2d at 812 (recovery permitted only where the condition is hidden or otherwise non-obvious); Lee v. State, Dep’t of Natural Resources, 478 N.W.2d 237, 239 (Minn. App. 1991) (“artificial condition must pose an unreasonable risk that children will not discover or will not realize it is a risk”), pet. for rev. denied (Minn. Feb. 10, 1992); see also Restatement (Second) of Torts § 339 cmt. i & j (1965) (no duty of landowner to prevent dangers that are obvious to children).
Johnson, 506 N.W.2d at 637. Further, the supreme court agreed with this court that the pond in Johnson contained no hidden dangers in spite of the muddy condition of the water:
As this court recognized in Davies v. Land O’Lakes Racing Association, 244 Minn. 248, 255, 69 N.W.2d 642, 647 (1955), even under § 339, “a possessor of land will not ordinarily be held liable for injuries occurring in ordinary, natural, or artificial bodies of water that are free from traps or concealments.” (Emphasis added). The Reserve Pool, as constructed, has a gradually-sloped bottom with no drop-offs and contains no unusual currents. Moreover, as we noted in Davies, “[i]t is generally conceded that the ordinary body of water, even though it be artificial, while it does involve the risk of death or serious harm, does not constitute an unreasonable risk thereof because even a child to some extent appreciates the risks that are connected with it. See, Prosser, Torts, § 77, p. 622.” Id.
Johnson, 518 N.W.2d at 600.
Here, both parties agree the water was turbid and opaque. But the nature of water remains the same, no matter the coloration. Water is always a potential cause of drowning, and Johnson directly states this principle. Therefore, even after taking into account the opaque quality of the water, appellant’s claim that the adult-trespasser standard provides an exception to recreational-use immunity in this case fails because there are no material facts that suggest the condition of the water was hidden.
 As an introductory note, appellant argues that not only could the turbidity of the water subject respondent to liability, but so, too, could the negligence of the lifeguards. It is clear that lifeguarding falls within the ambit of protected activities under Minn. Stat. § 466.03, subd. 6e (1996). See Zacharias v. Minnesota Dep’t of Natural Res., 506 N.W.2d 313, 320 (Minn. App. 1993) (holding that lifeguarding “is part of the ‘operations’ of a state park” and lifeguards were immune under Minn. Stat. § 3.376, subd. 3(h) (1990)), review denied (Minn. Nov. 16, 1993); see also Johnson v. Washington County, 518 N.W.2d 594, 599 (Minn. 1994) (applying Zacharias immunity to lifeguards at county park).
 In reaching the conclusion that section 339 should not apply, these cases rely, at least in part, on the fact that the children were supervised by adults or entrusted persons when they drowned. See Johnson, 518 N.W.2d at 599 (applying section 335, and not section 339, because child was supervised by school-district day-program employees); Zacharias, 506 N.W.2d at 319 (holding that 7-year old boy was supervised by grandmother and therefore section 339 did not apply). The rationale of adult and trained supervision is applicable here also. Lifeguards were on duty to watch Tyler.