This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Josie L. Davis,





Colonial Amoco Service Center, Inc.,



Filed May 14, 2002


Kalitowski, Judge


Hennepin County District Court

File No. 014827


Fred A. Reiter, Fred A. Reiter & Associates, Lake Calhoun Professional Building, 3109 Hennepin Avenue South, Minneapolis, MN 55408 (for appellant)


Dale M. Wagner, Anne C. Towey, Bassford, Lockhart, Truesdell & Briggs, P.A., 3550 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for respondent)


            Considered and decided by Kalitowski, 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


            During a storm in which there was snow and freezing rain, appellant Josie Davis exited respondent’s Colonial Amoco building and slipped and fell, sustaining physical injuries.  Appellant contends the district court erred in granting summary judgment to respondent contending that the district court erred in concluding respondent did not breach its duty of care to her.  We affirm.


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).  Appellate courts view the evidence in the light most favorable to the party against whom judgment was granted.  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 (1) a duty of care existed; (2) that 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).

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., 144 N.W.2d 555, 557 (Minn. 1966) (quotation omitted).  “The rationale underlying this rule is that ‘no one needs notice of what he knows or reasonably may be expected to know.’”  Baber v. Dill, 531 N.W.2d 493, 496 (Minn. 1995) (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. Minn. Zoological Gardens, 526 N.W.2d 416, 418-19 (Minn. App. 1995) (quoting Munoz v. Applebaum’s Food Mkt., Inc., 293 Minn. 433, 434, 196 N.W.2d 921, 922 (1972)), review denied (Minn. Mar. 29, 1995); see Johnson v. R.E. Tapley, Inc., 136 N.W.2d 538, 542 (Minn. 1965) (concluding entering and exiting through same doorway can help show knowledge of open and obvious danger).

            Appellant contends respondent violated its duty to clear the snow and ice from its property that had accumulated prior to that day’s storm.  She argues that the ice she slipped on was pre-existing because she discerned through touch that it was three to four inches thick and therefore, it could not have formed during the storm that afternoon.  But if, as appellant contends, there was a four- to five-inch mound of snow and ice, its height above the rest of the ground would make it visible, open, and obvious.  Moreover, because appellant fell during a storm that had snow and freezing rain, she knew or should have known of the slippery conditions.  Thus, the district court did not err in concluding that respondent was under no duty to warn against an open and obvious hazard.  See Peterson, 144 N.W.2d at 557.

A landowner may wait until a reasonable time after the storm ends before removing ice and snow.  Niemann v. Northwestern College, 389 N.W.2d 260, 262 (Minn. App. 1986), review denied (Minn. Aug. 27, 1986).  The district court properly determined that appellant failed to offer any evidence beyond her assertion that there was a four- to five-inch thick mound of ice that caused her fall.  Because respondent is under no duty to clear ice and snow during the storm, we conclude the district court properly granted summary judgment.