This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-03-328

 

Marvel Holland,

Appellant,

 

vs.

 

City of Renville,

Respondent.

 

Filed August 19, 2003

Affirmed

Gordon W. Shumaker, Judge

 

Renville County District Court

File No. C501936

 

 

 

 

Roy D. Zimmer, Zimmer Law Office, 14300 Nicollet Court, Suite 111, Burnsville, MN 55306 (for appellant)

 

Stephen O. Plunkett, Rider, Bennett, Egan & Arundel, LLP, 333 South Seventh Street, Suite 2000, Minneapolis, MN 55402 (for respondent)

 

 

 

            Considered and decided by Shumaker, Presiding Judge, Lansing, Judge, and Anderson, Judge.

 

 

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

            Appellant tripped, fell, and was injured on respondent’s property.  She sued for damages.  Ruling that respondent had no duty to warn appellant of the condition that caused her fall, the district court granted respondent’s motion for summary judgment.  Because respondent had no duty to warn, we affirm.

FACTS

            Respondent City of Renville owns an assisted-living facility known as Crossroads.  Appellant Marvel Holland’s aunt lived there and Holland visited her aunt once every one to two months.  From her visits, Holland knew that outside the Crossroads’ exit there was a section of uneven sidewalk that was painted yellow.

On May 2, 2001, Holland came to Crossroads to help her aunt move to a nursing home on the same property.  She asked Crossroads’ staff which exit she should use and was told to use the Crossroads’ exit with the uneven sidewalk.  Holland did so and walked along the sidewalk carrying a box in front of her.  Because the box obstructed her view of the sidewalk, Holland “attempted to try to ‘feel’ for the unevenness” with her foot.  Despite this effort, she stepped on the uneven portion with her left foot, fell, and was injured.

After Holland sued Renville for damages on a claim of negligence, Renville moved for summary judgment.  The district court granted the motion, holding that Renville had no legal duty to warn of the defect that Holland knew of, appreciated, and chose to encounter.  Holland appealed.

D E C I S I O N

On appeal from summary judgment, we must determine whether there are any genuine issues of material fact and whether the district court erred in its application of the law.  Rinn v. Minn. State Agric. Soc’y, 611 N.W.2d 361, 363 (Minn. App. 2000).  We view the evidence in the light most favorable to the nonmoving party.  Louis v. Louis, 636 N.W.2d 314, 318 (Minn. 2001).  “Summary judgment is appropriate against a party who fails to establish the existence of an element essential to its case.”  Rinn, 611 N.W.2d at 363-64.  The supreme court has provided that

[a] defendant in a negligence action is entitled to summary judgment when the record reflects a complete lack of proof on any of the four elements necessary for recovery: (1) the existence of a duty of care, (2) a breach of that duty, (3) an injury, and (4) the breach of that duty being the proximate cause of the injury.

 

Louis, 636 N.W.2d at 318 (citation omitted).  The dispositive issue in this case is whether Renville had to warn Holland of the defective sidewalk.  We review that issue de novo.  Larson v. Larson, 373 N.W.2d 287, 289 (Minn. 1985).

            “While a landowner generally has a continuing duty to use reasonable care for the safety of all entrants, this duty is not absolute.”  Louis, 636 N.W.2d at 319 (citing Baber v. Dill, 531 N.W.2d 493, 496 (Minn. 1995)).  The supreme court has adopted Restatement (Second) of Torts § 343A(1) (1965) that defines a landowner’s duty as

[a] possessor of land is not liable to his invitee for physical harm caused to them by any * * * condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.

 

Baber, 531 N.W.2d at 495-96 (quotations omitted).  The rationale of the restatement rule is that “no one needs notice of what he [or she] knows or reasonably may be expected to know.”  Id. at 496 (quotation omitted). 

The restatement defines “known” as

not only knowledge of the existence of the condition or activity itself, but also appreciation of the danger it involves. Thus, the condition * * * must not only be known to exist, but it must also be recognized that it is dangerous, and the probability and gravity of the threatened harm must be appreciated.

 

Louis, 636 N.W.2d at 321 (quoting Restatement (Second) of Torts § 343A, cmt. B).

            The district court ruled that Holland knew of the uneven pavement and appreciated the danger that it presented, citing Holland’s own admissions that she regularly went through the Crossroads’ entrance, that she adjusted her gait each time she came to that portion of the sidewalk, that she had previously assisted her aunt over the uneven sidewalk, and that she was “feeling” with her foot to find the uneven portion of the sidewalk just before her fall.

            Holland does not contest she knew the sidewalk was uneven and admits that the unevenness of the sidewalk was “quite obvious.”  Instead, Holland argues that the district court improperly granted summary judgment because a genuine issue of material fact exists about whether Holland “understood the danger involved.”

            Although the question of whether an entrant on defective property appreciates the harm the defect could cause can raise a material fact issue, here Holland failed to point to any evidence that she did not appreciate the danger of the sidewalk.  In its motion for summary judgment, Renville showed that Holland’s clear knowledge of the defect and her prior and current attempts to avoid it or to encounter it cautiously demonstrated the requisite appreciation.  That showing shifted to Holland the burden of pointing to contravening evidence.  Minn. R. Civ. P. 56.05; Thiele v. Stich, 425 N.W.2d 580, 583 (Minn. 1988).  She failed to satisfy that burden. Thus, no genuine issue of material fact exists for the trier of fact to resolve.

            Holland and Renville also raise arguments regarding the obviousness of the uneven sidewalk.  We need not address this issue because Holland had actual knowledge of the defect.

            Even though there are no genuine fact issues as to Holland’s knowledge and appreciation of the dangerous condition of the sidewalk, we must determine whether Renville had a duty despite Holland’s knowledge and appreciation.  The supreme court has referred to comment F of the Restatement (Second) of Torts § 343A for guidance regarding when a landowner should have anticipated the known danger, and the comment states:

There are, however, cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger.  In such cases the possessor is not relieved of the duty of reasonable care which he owes to the invitee for his protection.  This duty may require him to warn the invitee, or to take other reasonable steps to protect him, against the known or obvious condition or activity, if the possessor has reason to expect that the invitee will nevertheless suffer physical harm.

[Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it.]  Such reason may also arise where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk.  * * *  It is not, however, conclusive in determining the duty of the possessor, or whether he has acted reasonably under the circumstances.

 

Peterson v. W. T. Rawleigh Co., 274 Minn. 495, 497, 144 N.W.2d 555, 557-58 (1966) (quoting Restatement (Second) of Torts § 343A cmt. F).

Holland contends that Renville should have anticipated the harm because its staff member saw that she was carrying a box but told her to use the Crossroads’ door without warning her about the uneven sidewalk.  She also argues that Renville should have anticipated the harm because she is an “elderly” person, as are the Crossroads’ residents, and Renville should have anticipated that an elderly person could fall and be injured on the defective sidewalk.

            The supreme court has concluded that a possessor of land does not anticipate the harm when the injured party had safer alternatives than the one that caused the harm and when the accident had not occurred before.  See Sutherland v. Barton, 570 N.W.2d 1, 7 (Minn. 1997) (stating that a landowner did not have a duty to a deceased electrician because the landowner should not have anticipated that the electrician would encounter the harm without taking the necessary safety precautions); Hammerlind v. Clear Lake Star Factory Skydiver’s Club, 258 N.W.2d 590, 594 (Minn. 1977) (providing that a factor in determining if a pilot had a duty to a parachuter who died when he parachuted into a lake was whether such an accident had happened before).

            Renville had painted the uneven sidewalk yellow to warn of the danger.  Residents of Crossroads regularly used this sidewalk without incident, and there had been no previous reports of injury from the defect.  Furthermore, “a landowner has no duty to an invitee to warn or make safe known and obvious conditions when that invitee has assisted in creating those conditions.”  Baber, 531 N.W.2d at 496.  Here, Holland obstructed her own vision of the uneven sidewalk with the box and thus chose to encounter the defect, despite her knowledge and appreciation of the danger.  And Holland points to no evidence that she had but one alternative when faced with the defective sidewalk.  Thus, on this record, the district court properly concluded that Renville had no duty to warn of a defect that Holland knew of, appreciated, and voluntarily chose to encounter.

            Affirmed.