This opinion will be unpublished and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
Kimberly Marie Cameron,
William Harry Manners, et al.,
Filed June 4, 2002
Reversed and remanded
Hennepin County District Court
File No. 013107
James S. Ballentine, Richard L. Tousignant, Schwebel, Goetz & Sieben, 5120 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402-2246 (for appellant)
Thomas A. Gilligan Jr., Anissa M. Mediger, Murnane, Conlin, White & Brandt, 1800 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101 (for respondents)
Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Poritsky, Judge. *
U N P U B L I S H E D O P I N I O N
In this appeal from summary judgment, Kimberly Cameron challenges the district court’s determination that the open and obvious condition of a span of steel fencing on her parents’ patio forecloses her liability claim for personal injuries. We agree that the steel fencing was an obvious hazard but reverse and remand because a fact issue remains on whether the harm to Cameron should have been anticipated despite the obviousness.
F A C T S
Kimberly Cameron had dinner with her parents in June 2000 and returned to their house to retrieve her dog about 8:30 p.m. Cameron is 23 and has lived independently for four to five years. She entered her parent’s house through a back door adjacent to a small patio. On one side of the patio, stairs lead to the driveway. A wooden flower box, approximately six inches lower than the patio surface, extends along the patio’s front width.
While Cameron was in the house talking with her mother, her stepfather decided to erect a span of steel fencing across the patio to protect the flowers from dogs. He placed a piece of 2 x 8-foot 11-gauge expanded-steel fencing between the front of the patio and the wooden flower box. To prevent the fencing from pivoting or sliding, he fastened it with a U-nail. He had never placed any fencing in that area before that evening and was aware that Cameron had, in the past, used the wooden flower box as a step when she went from the patio into the yard.
After Cameron and her mother had been in the house for about 15 minutes, Cameron’s mother, observing their dog and Cameron’s dog through the kitchen window, told Cameron that the dogs were running away from the yard and driveway area. Cameron feared the dogs might run into the street. Walking fast or lightly jogging, she went out the back door that she had earlier entered and went forward off the front of the patio above the flower box, toward the yard. As she reached the end of the patio, her left foot caught on the fence. Her left leg continued forward and her right leg slid over the top of the fence where she fell. Her right calf was cut on the sharp fencing top; part of her calf muscle was severed and partially repaired through surgery, and she has experienced continued weakness, swelling, and numbness in her right leg. In her deposition, Cameron testified she did not see the fencing before she ran into it, although the information in the medical history records is somewhat inconsistent.
The district court granted summary judgment against Cameron, concluding the fence and its risks were open and obvious and her injuries were unforeseen.
D E C I S I O N
On appeal from summary judgment, the reviewing court determines whether the case raises genuine issues of material fact and whether the district court erred in its application of the law. Offerdahl v. Univ. of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). The existence of a legal duty is an issue of law. Louis v. Louis, 636 N.W.2d 314, 318 (Minn. 2001).
A landowner has a general duty to use reasonable care for the safety of all persons who enter onto the land. Id. at 319. But the landowner’s reasonable-care duty is not absolute; when activities or conditions on the land present danger that is known or obvious, the landlord is not liable for the resulting harm unless the landowner should anticipate the harm despite its obviousness. Id. at 319 (holding the known-or-obvious exception applies to all entrants) (citing Baber v. Dill, 531 N.W.2d 493, 495-96 (Minn. 1995)). Thus, application of this rule involves a two-step inquiry: (1) Was the activity or condition known or obvious to the injured person? (2) Even if the activity or condition was known or obvious, should the landowner still have anticipated the harm? Louis, 636 N.W.2d at 322.
The district court concluded that the fence and its dangers were obvious. In assessing whether a condition is “obvious,” the test is whether “both the condition and the risk are apparent to and would be recognized by” a reasonable person “in the position of the visitor, exercising ordinary perception, intelligence, and judgment.” Louis, 636 N.W.2d at 321 (citing Restatement (Second) of Torts § 343A, cmt. b (1965)). This is an objective test; the question is whether the condition and its risk are visible, not whether the injured person actually saw the condition. Id. (citing Munoz v. Applebaum's Food Market, Inc., 293 Minn. 433, 434, 196 N.W.2d 921, 922 (1972)).
Minnesota caselaw has recognized that certain conditions defeat liability because of their obviousness, including a low-hanging branch of a tall and isolated tree during the day, a low brick border surrounding a shopping-mall planter that used contrasting bricks from the mall walkway, a hill sloping down to a wooded pond area, and a lake located near a parachute-landing area. See Bisher v. Homart Devel. Co., 328 N.W.2d 731, 733-34 (Minn. 1983) (shopping-mall planter); Hammerlind v. Clear Lake Star Factory Skydiver's Club, 258 N.W.2d 590, 593-94 (Minn. 1977) (lake); Sperr by Sperr v. Ramsey Co., 429 N.W.2d 315, 317 (Minn. App. 1988) (tree branch), review denied (Minn. Nov. 23, 1988); Lawrence v. Hollerich, 394 N.W.2d 853, 855 (Minn. App. 1986) (sloping hill), review denied (Minn. Dec. 17, 1986).
The record supports the district court’s conclusion that the fence and its risks were obvious. Pictures submitted as evidence demonstrate that the fence was visible to a person exercising ordinary perception and intelligence. As the district court noted, the visibility of the fence was not obstructed by foliage, and the fence stood in an upright position. The accident occurred on a June evening under conditions that Cameron described as “dusky,” but not a diminution of light that interfered with her ability to observe the fencing. The risk of attempting to jump or climb the fence would have been obvious to an ordinary person.
But even if the condition causing the harm is obvious, a landowner may still be liable if the landowner should have anticipated the harm despite the obvious condition. See Baber, 531 N.W.2d at 496. This second-step inquiry assesses the “foreseeability” of the injury. Sperr by Sperr, 429 N.W.2d at 318 (holding landowner could not anticipate harm from low-hanging branch when no sidewalks or paths led to the tree and a safe alternative route existed). In this inquiry, we consider that the landowner should anticipate the harm if he has reason to expect that the visitor’s attention may be distracted, so the visitor (a) will not discover what is obvious, (b) will forget what is obvious, or (c) will fail to protect against the obvious. Restatement (Second) of Torts § 343A cmt. f (1965). If the landowner can anticipate the harm, this duty may require the landowner to warn the visitor or take other reasonable steps for the visitor’s protection. Id.
Because of the summary judgment posture, we look at the evidence in the light most favorable to Cameron. See Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (noting that district court must view evidence in light most favorable to non-moving party). Thus Cameron’s assertion that she did not see the fence before she caught her foot in it must be viewed in her favor. The somewhat conflicting evidence in the medical history reports may present a fact issue, but this evidence does not conclusively establish that she saw the fence and deliberately chose to leap over it.
The remaining facts in the record, together with Cameron’s claim that she did not see the fence, are sufficient to establish that her stepfather should have anticipated that Cameron might fail to see the fence—despite its obviousness—and be injured on the fence. Those facts include (1) Cameron was a frequent visitor to her parents’ home; (2) her parents had never before placed a fence in the flower box; (3) her stepfather knew Cameron used the wooden flower box as a step when she went forward from the front of the patio; (4) when Cameron entered the house fifteen minutes earlier through the same door and across the same patio, the fence was not there; (5) Cameron’s stepfather knew she still needed to retrieve her dog from the yard; and (6) the fence had a sharp top edge that would likely cut someone coming in contact with it. On these facts, her stepfather could reasonably anticipate that Cameron might go across the patio and use the wooden flower box to go into the yard without making a careful assessment of changes that had occurred in the intervening 15 minutes.
In concluding that Cameron’s stepfather, as a landowner, owed a duty to Cameron, we are not finding that the stepfather breached this duty; breach of duty or negligence, causation, and apportionment of negligence between the parties are matters for a jury to decide. Our holding is limited to reversing the finding of no duty.
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.