This opinion will be unpublished and

may not be cited except as provided by

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







Kelly L. White,





City of North St. Paul,




Filed December 16, 2003


Halbrooks, Judge



Ramsey County District Court

File No. C3-02-3284



Carter J. Bergen, 270 Parkwood Place, 7650 Currell Boulevard, Woodbury, MN 55125 (for appellant)


Brian H. Gaviglio, League of Minnesota Cities, 145 University Avenue West, St. Paul, MN 55103 (for respondent)




            Considered and decided by Halbrooks, Presiding Judge, Minge, Judge, and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant brought a negligence claim against respondent for injuries she sustained after tripping in the gutter adjacent to a curb.  The district court granted respondent’s summary judgment motion on the ground that appellant failed to set forth a prima facie case of negligence.  We affirm.


In September 1996, appellant Kelly White and her one-year-old son visited her son’s father at his apartment in downtown North St. Paul.  Appellant was familiar with the area, having visited there approximately 20 times.  On this occasion, she parked across the street from the apartment.  Carrying her son, a diaper bag, and her purse, appellant crossed the street in the middle of the block and stepped over the gutter and onto the curb without difficulty.  Following the visit, appellant again crossed the street in the middle of the block rather than at the intersection crosswalk.  The conditions were dry and it was still sunny when she returned to her car at 6:00 p.m.  As appellant stepped off the curb, she stepped into a “crevice”[1] in the gutter and fell, injuring her right knee, ankle, and wrist.

            Respondent City of North St. Paul (the city) first learned of appellant’s accident approximately two years later.  At that time, the city engineer inspected the gutter in the area where appellant fell and concluded that there was no hazard.  Appellant filed suit nearly six years after her accident.  The city brought a motion for summary judgment, arguing that it was entitled to dismissal based on statutory discretionary immunity and that appellant had failed to establish a prima facie case of negligence.  The district court granted the city’s motion, concluding that appellant had failed to establish that the city’s “one-inch rule” applied to the curbs and gutters or that the city had actual or constructive notice of this gutter condition.  Because of the court’s conclusion concerning the negligence issue, it did not reach the issue of the city’s defense based on statutory immunity.  This appeal follows.


In reviewing a district court’s grant of 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).  To survive summary judgment, a party must demonstrate that genuine issues of material fact exist that would establish a prima facie claim of negligence.  Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995).  The elements of a negligence claim are (1) the existence of a duty of care, (2) a breach of that duty, (3) proximate cause, and (4) an injury.  Louis v. Louis, 636 N.W.2d 314, 318 (Minn. 2001). Mere denials, general assertions, and speculation are not sufficient to raise an issue of material fact.  Gutbrod v. County of Hennepin, 529 N.W.2d 720, 723 (Minn. App. 1995).  Summary judgment is appropriate where the “record reflects a complete lack of proof on any of the four elements necessary for recovery.”  Louis, 636 N.W.2d at 318. 

Municipalities generally owe “a duty to the public to exercise reasonable care in maintaining sidewalks and other public ways in a safe condition for passage of pedestrians.”  Olson v. City of St. James, 380 N.W.2d 555, 559 (Minn. App. 1986); cf. Brittain v. City of Minneapolis, 250 Minn. 376, 386, 84 N.W.2d 646, 653 (1957) (stating that pedestrians could not rely on the city “to maintain street areas outside of the sidewalk proper” in a condition equally safe to that of the sidewalks).  The duty to maintain streets and sidewalks in a safe condition requires the municipality to use reasonable diligence to ascertain and remedy defects.  Jackson v. City of St. Louis Park, 261 Minn. 93, 97, 110 N.W.2d 510, 513 (1961).  Here, the city owed a duty to maintain areas where pedestrians are expected to traverse in a safe condition, as well as to attempt to ascertain and remedy known defects.

Our next inquiry, therefore, is whether the city breached its duty of care.  Actual or constructive notice of a defect is required in order to establish liability for breach of a legal duty.  Hanson v. City of St. Paul, 298 Minn. 205, 207-08, 214 N.W.2d 346, 348 (1974).  The record indicates that the city follows an unwritten schedule for maintenance of its streets, curbs, gutters, and sidewalks.  During the city’s periodic, routine cleaning and maintenance, all public works employees are instructed to be on the lookout for any problems.  When the city is notified of a problem by either a citizen or an employee, the area is inspected and any necessary repairs are made. 

In addition to routine maintenance, the city has an ongoing inspection policy.  In the year preceding appellant’s fall, the city inspected the downtown streets and sidewalks four times, and Ramsey County personnel inspected them once.  No repairs or improvements were identified for the area where appellant later fell.  Further, no improvements have ever been made to the area where appellant fell and no complaints have ever been filed regarding the condition of that section of the gutter.   

There is no dispute that the city did not have actual notice of the alleged defect.  But appellant contends that a fact issue exists as to whether the city applies its “one-inch rule” to downtown curbs and gutters, and contends that, if the city had followed this rule, it would have discovered the crevice during one of its inspections.  The parties agree that under the city’s “one-inch rule,” upheavals in a sidewalk with a depth of greater than one inch are given priority for repair.  Based on this theory, appellant claims that the city had constructive notice of the defect.  Constructive knowledge is established through evidence that the dangerous condition was present for such a period of time that it constituted constructive notice of the danger.  Rinn, 611 N.W.2d at 365.  “Inadequate inspection or failure to discover the existence of a defect is not a separate ground for liability,” but will bear on the proof of constructive notice.  Kopveiler v. N. Pac. Ry. Co., 280 Minn. 489, 493, 160 N.W.2d 142, 146 (1968).  Thus, constructive knowledge is established where “the municipality in the exercise of reasonable diligence to discover and remedy defects should have known of its existence.”  Id.

The district court held that there is no issue of material fact with respect to whether the city’s “one-inch rule” applies to curbs and gutters or that the city had actual or constructive notice of the defect.  We agree.  David Kotilnek, the city engineer and community service manager, was questioned at significant length by appellant’s counsel on this subject.  When initially asked whether there was a city policy with regard to inspection of curbs and gutters, Kotilnek responded, “No.”  When asked about the inspections that take place during cleaning of the streets in preparation for Crazy Days and Fall Roundup, Kotilnek deferred to Scott Dudek, the public works superintendent, stating that Dudek was in a better position to answer those questions.  Kotilnek repeatedly deferred to Dudek on various other matters as well.  Kotilnek explained that because there are no written guidelines, Dudek would make a “judgment call” about whether or not to repair any reported damage to the curbs and gutters.  When pressed on the application of the one-inch rule, Kotilnek again stated that the rule “generally would apply more to sidewalks than it would [to] curb[s] and gutter[s]” and stated that he was “really not sure” whether it ever applied to the curb and gutter.  He also stated that the city typically treats curbs and gutters differently because they are “not [usually] looked at as a pedestrian walkway.”  Kotilnek also stated that the one-inch rule acts only to provide “some guide” for repairs made to the curbs and gutters, and he testified that the area where appellant fell was “not a hazard” under the city’s standards.  Nonetheless, counsel continued to press Kotilnek for answers indicating that the one-inch rule applies to areas other than the sidewalks.  Through this repetitive and confusing questioning, Kotilnek ultimately gave several inconsistent statements about whether or not the rule applies to curbs and gutters. 

But this inconsistent testimony does not create an issue of material fact about the application of the one-inch rule.  Both Kotilnek and Dudek indicated that Dudek was the most qualified witness to answer questions about the one-inch rule because he is responsible for supervising inspections and approving repairs.  Dudek repeatedly testified that he has never applied the one-inch rule to anything other than the sidewalks.  Dudek stated that his concern with the curbs and gutters is limited to correcting “drainage issues” and “keeping the downtown clean.”  Moreover, Dudek testified that the area where appellant fell did not warrant repair under the city’s standards because it was merely “minimal cosmetic” damage. 

Therefore, we conclude that there is no issue of material fact about the application of the one-inch rule to curbs and gutters.  Furthermore, we conclude that because the condition of the gutter was not a “defect” under the city’s policy, there can be no constructive knowledge of a defect or dangerous condition.  Consequently, the city cannot be held liable for breach of duty based on constructive notice. 

The city also asserts that it is not liable to appellant because it had no duty to warn her of an open and obvious condition.  The supreme court has adopted the Restatement (Second) of Torts § 343A(1) (1965), which states that a “possessor of land is not liable to his invitees 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 v. Dill, 531 N.W.2d 493, 495-96 (Minn. 1995) (quoting Peterson v. W.T. Rawleigh, Co., 274 Minn. 495, 496-97, 144 N.W.2d 555, 557 (1966)).   Minnesota courts have routinely held that a landowner will not be held liable for breach of duty where a condition is open and obvious.  See, e.g., Bisher v. Homart Dev. Co., 328 N.W.2d 731, 733-34 (Minn. 1983) (stating landowner did not breach duty of care when plaintiff tripped over a planter in a shopping mall, because planter was “obvious” and in “plain view”); Flynn v. Arcade Inv. Co., 253 Minn. 107, 111, 91 N.W.2d 113, 115 (1958) (stating building owner did not breach duty of care when plaintiff tripped on a step, where the step was in “plain sight” and plaintiff was aware of its presence because she had stepped on it only a few minutes before the accident); Lawrence v. Hollerich, 394 N.W.2d 853, 856 (Minn. App. 1986) (noting landowner did not breach duty of care where guest fell down a steep hillside, because the hill was obviously steep), review denied (Minn. Dec. 17, 1986).  The test for what constitutes an “obvious” danger is not whether the injured party actually saw the danger, but whether it was, in fact, visible.  Louis, 636 N.W.2d at 321.

We conclude that the record establishes that the condition of the gutter was open and obvious.  Appellant testified that the conditions were dry and sunny at the time of her fall.  When appellant was asked in her deposition if she considered the crevice to be an “obvious danger,” she responded, “Yes.”  When asked if she would have stepped there had she looked down first, appellant responded, “No, I would not have.”  Because a landowner is not liable for injuries caused by obvious hazards, and there is no basis for inferring that the city should have anticipated appellant’s injury, appellant has not established that the city breached its duty of care. 

The district court correctly granted summary judgment on the basis that appellant failed to establish a prima facie case of negligence.  We, therefore, do not reach the issue of whether the city is entitled to statutory immunity.




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

[1] Appellant refers to this as a “crevice,” while the city calls it a “deviation.”  The parties agree that the depth of the area is 1 3/8 inches, the width is 4 1/4 inches, and the length is 18 1/2 inches.