This opinion will be unpublished and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

C0-01-1275

 

Adam T. Peterson,

Appellant,

 

vs.

 

Industrial Equities, L.L.P.,

Respondent,

 

SoilCon, Inc.,

Respondent,

 

Midwest Asphalt, Inc., et al.,

Respondents.

 

Filed February 19, 2002

Affirmed

Gordon W. Shumaker, Judge

 

Hennepin County District Court

File No. DC008471

 

 

Mark D. Luther, Sean J. Rice, 8800 Highway 7, Suite 408, St. Louis Park, MN 55426 (for appellant)

 

Nicholas Klehr, Candlin & Heck, 3800 West 80th Street, Suite 1500, Bloomington, MN 55431 (for respondent Industrial Equities, L.L.P.)

 

Lawrence J. Skoglund, Erstad & Riemer, 200 Riverview Office Tower, 8009 34th Avenue South, Minneapolis, MN 55425 (for respondent SoilCon, Inc.)

 

Michael R. Moline, Conley & Borgeson, 2550 University Avenue West, Suite 220-S, St. Paul, MN 55114 (for respondent Midwest Asphalt, Inc.)

 

            Considered and decided by Stoneburner, Presiding Judge, Shumaker, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

 

GORDON W. SHUMAKER, Judge

 

After appellant Adam Peterson was injured in a bicycle accident near a construction site where respondents had done work, he sued for damages.  The district court granted summary judgment to all respondents, ruling that the statute of limitations had expired before Peterson started his lawsuit.  Peterson challenges that ruling on appeal.  We affirm.

FACTS

Respondents are contractors who were engaged in the construction of an office building, parking lot, and driveway in Fridley.  The driveway that connected the parking lot to the public street intersected a sidewalk that ran parallel to the street.  The sidewalk was used by pedestrians and bicycle riders.

During excavation for the installation of curbs and gutters along the sidewalk, one of the contractors placed on the sidewalk dirt to be used as backfill.  At about 11:00 p.m. on July 23, 1996, appellant Adam Peterson rode his bicycle along the unlit sidewalk in the area of the construction project.  His bicycle struck something and he fell to the ground and was injured.  He surmises that he hit the dirt pile on the sidewalk, although there also was newly constructed curbing and a trench in the immediate area that he might have struck.

Peterson sued the respondents and others about three and one-half years after the accident, alleging that they had been negligent in failing to keep the sidewalk in the area of the construction project safe for public travel.  Contending that Peterson’s accident arose out of the defective and unsafe condition of an improvement to real property, respondents moved for summary judgment on the ground that the two-year statute of limitations had expired before Peterson started his lawsuit.  The district court agreed and granted summary judgment to all respondents.  Peterson appealed.

D E C I S I O N

            On appeal from summary judgment, this 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).  A material fact is one that will affect the outcome of the case, depending upon its resolution.  O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn. 1996).  This court must review any evidence in a light most favorable to the party against whom summary judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  “The construction and applicability of statutes of limitations are questions of law that this court reviews de novo.”  Benigni v. County of St. Louis, 585 N.W.2d 51, 54 (Minn. 1998).

Although there clearly exists a genuine issue of material fact as to causation, the question presented by the summary judgments is that of the applicability of the statute of limitations.  Minn. Stat. § 541.051, subd. 1(a) (2000), provides a two-year statute of limitations when a defective and unsafe condition of an improvement to real property causes bodily injury:

 

Except where fraud is involved, no action by any person in contract, tort, or otherwise to recover damages * * * for bodily injury * * * arising out of the defective and unsafe condition of an improvement to real property, * * * shall be brought against any person performing or furnishing the design, planning, supervision, materials, or observation of construction or construction of the improvement to real property or against the owner of the real property more than two years after discovery of the injury * * * .

 

The two-year statute of limitations applies if three elements can be satisfied: (1) there must be an “improvement” to real property; (2) the claim must arise out of the defective and unsafe condition of the improvement; and (3) that condition must have caused bodily injury.  Brandt v. Hallwood Mgmt. Co., 560 N.W.2d 396, 399 (Minn. App. 1997).

The Minnesota Supreme Court has defined “improvement” and has held that it is to be distinguished from “ordinary repairs”:

[A] permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable as distinguished from ordinary repairs.

 

Pacific Indem. Co. v. Thompson-Yaeger, Inc., 260 N.W.2d 548, 554 (Minn. 1977) (quoting Kloster-Madsen, Inc. v. Tafi’s, Inc., 303 Minn. 59, 63, 226 N.W.2d 603, 607 (1975)).

A temporary construction condition may be an improvement if it is part of the overall process of permanent construction.  See Lederman v. Cragun’s Pine Beach Resort, 247 F.3d 812, 815 (8th Cir. 2001) (stating that overall construction process, rather than separating out parts of the construction process, must be examined to determine whether a trench constituted improvement to real property); see also Brandt, 560 N.W.2d at 402 (noting in dicta that a temporary excavation site can be an integral part of the construction of an improvement to real property).

Peterson concedes that the dirt pile that he allegedly struck would fit the definition of “improvement,” but he contends that his accident “did not occur on the property that was to be improved.”

There is no dispute that the excavation from which the dirt on the pathway came was an integral part of the overall construction process.  The dirt, which was to be backfilled, was a component of the “improvement” that respondents were constructing.  Thus, because Peterson’s injury arose out of the unsafe and defective condition created by the dirt pile, his injury necessarily arose out of the improvement.  Lederman, 247 F.3d at 816 (rejecting the argument that the path on which the plaintiff was injured was not part of the improvement when a trench dug as part of the improvement caused the path to collapse).

Additionally, it is not contested that, as part of the overall permanent improvement, the sidewalk itself had to be cut back, graded, and paved to tie into the back of the curb and driveway.  Thus, even the sidewalk was a component of the overall construction process.  Therefore, we hold that the district court did not err in ruling that Peterson’s action is barred by the two-year statute of limitations in Minn. Stat. § 541.051 (2000).

Finally, respondents Industrial Equities and John Allen raise the issue of causation.  The district court did not expressly rule on this issue.  For that reason, and because we have held that the action is time-barred, we need not address the question of causation.

Affirmed.