This opinion will be unpublished and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

C4-01-1845

 

 

Howard J. Mondry, et al.,

Appellants,

 

vs.

 

City of South St. Paul, a municipal corporation,

Respondent.

 

Filed April 16, 2002

Reversed and remanded

Robert H. Schumacher, Judge

 

Dakota County District Court

File No. C3018911

 

 

George L. May, Terence G. O'Brien, Jr., May & O'Brien Law Offices, 204 Sibley Street, Suite 202, Hastings, MN 55033 (for appellants)

 

Michael C. Lindberg, Molly K. Thompson, Johnson & Lindberg, P.A., 7900 International Drive, Suite 960, Minneapolis, MN 55425-1582 (for respondent)

 

 

Considered and decided by Hanson, Presiding Judge, Schumacher, Judge, and Poritsky, Judge.*


U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellants Howard J. Mondry and Alice J. Mondry, also known as Joyce Mondry, appeal from the district court's order granting summary judgment to respondent City of South St. Paul. The Mondrys allege that the district court erred in ruling that no material fact issues existed with respect to his trespass and negligence claims. We reverse and remand.

FACTS

The Mondrys lease approximately 5,000 square feet from the City of South St. Paul at the City's Municipal Airport, which is also known as Fleming Field. They constructed an airplane hangar on the property. The City owns the lot adjacent to the east and has its own hangar on this property. In between the Mondrys' hangar and the City's hangar lies an open area of grass that the City maintained. The City also cut the grass alongside the Mondry hangar, which was actually part of the Mondry leased realty. Mondry apparently was aware that the City maintained this area, and knew that the City "stored" grass-cutting and snow-removal equipment in the area. Mondry testified, however, that the City had not previously left equipment actually on his property; instead, the equipment was left on the City's property.

The Mondrys had never expressly consented to the City storing, or leaving, its equipment on the Mondrys' property. The Mondrys claim that they were not aware that the snow-plow bucket had been left on their property. The City concedes that the snow-plow bucket was located at least partially on the Mondry property when the incident occurred. The City concedes that it owned the snow-plow bucket and placed it on the Mondry property. The City put the snow-plow bucket on the Mondry property in March of 1999, and it remained in the same location until August 7, when the incident occurred. The Mondrys had been in Arizona from January until May of 1999.

The evening of August 7, 1999, the Mondrys went to Fleming Field for a social gathering at a friend's hangar. During this gathering, Mondry drank some beer. He testified he had two. Eventually, he had to go to the bathroom and decided to return to his hangar to do so. It was now late evening and dark out. When he reached his hangar, Mondry discovered that he did not have his key to get into the hangar. To afford himself some privacy, Mondry walked around to the southeast corner of his hangar, away from the gathering.

After relieving himself, Mondry walked north along the east side of his hangar. Mondry was walking "tight to the hangar," with his cane in his right hand. Mondry walked into the snow-plow bucket. The snow-plow bucket was large nine feet by five feet by four feet and orange. Mondry testified that it was a dark night, with neither moonlight nor lights to illuminate the two hangars or the area in between. Mondry was walking at a normal speed. He testified that he was not aware that the City had placed anything on his property. Mondry alleges he was injured when he fell after walking into the snow-plow bucket.

The district court denied Mondry's motion for partial summary judgment and granted the City's motion for summary judgment dismissing Mondry's lawsuit. This appeal followed.

D E C I S I O N

Upon review of a grant of summary judgment, the appellate courts must determine whether the trial court erred in deciding that there are no issues of material fact, and whether the trial court correctly applied the law. Wallin v. Letourneau, 534 N.W.2d 712, 715 (Minn. 1995). The evidence must be viewed in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

We first review the trespass claim. There is no dispute that the City had, in fact, mowed the grass in between the hangars, including the grass on the Mondrys' leasehold next to their hangar. Mondry also concedes that he was aware that the City left equipment on the grassy area in between the two hangars. Mondry testified, however, that he was not aware of the City ever having previously left equipment actually on his property.

Implied or express consent may excuse what would otherwise constitute a trespass. Meixner v. Buecksler, 216 Minn. 586, 590, 13 N.W.2d 754, 756 (1944). As set forth below, the trespass is excused only to the extent of compliance with the particular consent granted, however. The consent does not excuse any and all intrusions. Instead, the law indicates that the intrusion must fall within the scope of the consent and not extend beyond the purpose for which the consent has been granted.

Several cases illustrate the concept that an entrant may become a trespasser by moving beyond the scope of the invitation and permission. In State v. Brooks-Scanlon Lumber Co., 128 Minn. 300, 302, 150 N.W. 912, 913 (1915), the permission to cut mature trees did not extend to, nor excuse, the cutting of immature trees. This conduct was a trespass. Id. Likewise, in Rieger v. Zackoski, 321 N.W.2d 16, 20 (Minn. 1982), the supreme court held that the district court had correctly instructed the jury that a lawful entrant may become a trespasser if the scope of the invitation is exceeded. Similarly, in Mitchell v. Mitchell, 54 Minn. 301, 304, 55 N.W. 1134, 1135 (1893), the court held that invitees became trespassers when the intrusion exceeded the invitation. In Copeland v. Hubbard Broadcasting, Inc., 526 N.W.2d 402, 405 (Minn. App. 1995) (citing Meixner, 216 Minn. at 590, 13 N.W.2d at 756), review denied (Minn. Mar. 29, 1995), this court held that "whether the possessor of land has given consent for entry is, when disputed, a factual issue." The Copeland court then determined that summary judgment in favor of the intruder was improper because the evidence supported the claimant's allegation that the consent was limited and the intruder exceeded the scope of the consent. 526 N.W.2d at 405.

In the present case, the district court erred in deciding that the City had not committed a trespass. The Mondrys disputed the scope of the City's implied consent to enter their real estate. The Mondrys presented evidence that no consent, implied or express, had ever been granted to the City to leave any equipment, much less this specific piece of equipment, on their property. The City's only evidence on this issue relates to a possible implied consent to cut the grass on the Mondry leasehold. Any such consent, however, is unrelated to the City's conduct at issue leaving a snow-plow bucket on the Mondrys' leasehold property.

Consent to enter another's property to perform a particular task

carries with it authority and the right by implication to do all that is necessary to effect the principal object and to avail the licensee of his rights under the license.

 

Meixner, 216 Minn. at 590, 13 N.W.2d at 756 (emphasis added). The City has presented no evidence indicating that the Mondrys had consented to having equipment stored on their leasehold, and this conduct was not necessary to effectuate the alleged implied consent granted to the City to cut the grass. As such, no fact issue exists as to whether or not the City's conduct in leaving the snow-plow bucket on the Mondrys' leasehold constitutes a trespass. This was a trespass as a matter of law.

We turn next to the negligence claim. The district court ruled that the City had no duty to warn Mondry, Mondry had a duty to use "special care" when walking in the dark, and that the snow-plow bucket was "open and obvious and had been observed by [Mondry] * * * on several occasions." We disagree. The question as to whether or not the snow-plow bucket was "open and obvious" is a fact issue. There is evidence in the record indicating that the snow-plow bucket was not clearly visible, given that it was dark at the time. Even when the injured party is an invitee on another's property the case law indicates that the proper inquiry is whether the condition is "open and obvious" at the time of the incident. Betzold v. Sherwin, 404 N.W.2d 286, 289 (Minn. App. 1987), review denied (Minn. June 25, 1987). "A landowner is not relieved of the duty to warn at night merely because a condition is open and obvious during the day." Id. (citing Malmquist v. Leeds, 245 Minn. 130, 139, 71 N.W.2d 863, 869 (1955)).

In the present case, Mondry was on his own property and the City had committed a trespass by leaving the snow-plow bucket on his property. There is evidence indicating that the snow-plow bucket was not clearly visible in the dark. Mondry created a fact issue, and the district court improperly granted summary judgment.

The case law indicates that once a trespass has occurred the intruding party is responsible for the damages proximately caused thereby, irrespective of any fault on behalf of the injured party:

Since the sole theory of liability * * * was trespass, the trial court erred in explaining contributory negligence and assumption of risk to the jury, indicating they might be defenses * * * . Negligence on the part of the plaintiff is not a defense to an intentional tort. Nor, unless it amounts to consent, is assumption of risk.

 

Victor v. Sell, 301 Minn. 309, 314-15, 222 N.W.2d 337, 341 (1974). The City had no legal right to place its equipment on his property where Mondry could walk into it. Mondry's alleged negligence does not excuse the intentional tort.

We reverse the district court's grant of summary judgment to the City, and we remand with instructions for the district court to grant partial summary judgment to the Mondrys on their claim that the City committed a trespass. Factual issues exist with respect to the Mondrys negligence claim, should they continue to pursue it.

Reversed and remanded.



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