This opinion will be unpublished and

may not be cited except as provided by

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







Cory L. Schmidt,





High-Five Erectors,





Weis Builders, Inc.,

defendant and third party plaintiff,





Meyers & Jackson Roofing, Inc.,

third party defendant,



Filed April 6, 2004


Toussaint, Chief Judge


Hennepin County District Court

File No. PI 02-3813



Wilbur W. Fluegel, Fluegel Law Office, 701 Fourth Avenue South, Suite 1260, Minneapolis, MN 55415-1815; and


Carl J. Sommerer, II, 1219 Marquette Avenue, Suite 300, Minneapolis, MN 55403 (for appellant)


Scott B. Lundquist, 1012 Grain Exchange Building, 400 South Fourth Street, Minneapolis, MN 55415 (for respondent Weis Builders, Inc.)


Lauris Alan Heyerdahl, Abrams & Smith, P.A., 1250 Pillsbury Center South, 220 South Sixth Street, Minneapolis, MN 55402 (for respondent Meyers & Jackson Roofing, Inc.)


Considered and decided by Toussaint, Chief Judge; Halbrooks, Judge; and Huspeni, Judge.*




TOUSSAINT, Chief Judge

On appeal from summary judgment in a construction-site personal-injury action, appellant asserts the district court erred in holding that his claim fell within the two-year statute of limitations for actions arising from unsafe conditions of an “improvement to real property” under Minn. Stat. § 541.051 (1996).  Because we conclude appellant’s injuries clearly arose “out of the defective and unsafe condition of an improvement to real property,” and because we conclude there is no support for appellant’s assertion that his claim somehow falls outside the purview of the statute, we affirm.


The facts of this case are undisputed.  On June 10, 1996, appellant Cory L. Schmidt sustained injuries after falling through a hole in the roof of a building under construction in Woodbury.  Schmidt had removed an unmarked sheet of plywood covering the hole at the direction of his employer, respondent-subcontractor Meyers & Jackson Roofing.  Defendant-subcontractor High Five Erectors[1] had cut the hole at the direction of respondent-contractor Weis Builders for installation of a permanent hatch. 

Schmidt brought this action against Weis on March 28, 2001, over four years after the accident, alleging that Weis’s negligence caused his injuries.  Weis subsequently filed a third-party complaint seeking indemnity against Meyers & Jackson.  Both Weis and Meyers & Jackson then moved for summary judgment, asserting that Schmidt’s claim was time-barred because the injury arose “out of the defective and unsafe condition of an improvement to real property,” and Schmidt had failed to file his suit within two years as required under Minn. Stat. § 541.051 (1996).  The district court granted summary judgment to both parties. 

Schmidt now appeals, claiming his injuries were caused either (1) by a temporary condition to the property, and therefore fall outside the scope of Minn. Stat. § 541.051; or (2) by a “person in possession” of the property, and therefore are expressly exempted from the two-year limit in Minn. Stat. § 541.051, subd. 1(c).  He additionally asserts that Weis’s contractual duty to maintain the worksite in a safe manner renders the statute inapplicable.


When reviewing an appeal from summary judgment, this court asks: (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  On appeal, the evidence must be viewed in the light most favorable to the party against whom judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). Construction of a statute of limitations is a question of law that this court reviews de novo.  Sarafolean v. Kauffman, 547 N.W.2d 417, 419 (Minn. App. 1996), review denied (Minn. July 10, 1996)).


Cause of Injury


Schmidt’s first argument is that his injuries were not caused by an unsafe condition of an improvement to real property, and therefore do not fall within the statute.  He argues instead that the cause of the accident was the plywood temporarily covering the hole, and that this removable plywood is not part of the property’s “permanent” improvement.  He asserts, therefore, that the two-year statute of limitations does not apply.  Examining Minnesota law, however, we conclude these arguments are unsupported.

Minn. Stat. § 541.051 provides, in relevant part:

Except where fraud is involved, no action by any person in contract, tort, or otherwise to recover damages . . . for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property . . . shall be brought against any person performing or furnishing the design, planning, supervision, materials, or observation of construction or construction of the improvement to real property . . . more than two years after the discovery of the injury . . . .


Minn. Stat. § 541.051, subd. 1(a) (2002).  Minnesota courts have defined an “improvement to real property” as “a permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable as distinguished from ordinary repairs.”  E.g., Pac. Indem. Co. v. Thompson-Yaeger, Inc., 260 N.W.2d 548, 554 (Minn. 1977).  

Schmidt does not contest that the overall construction project, including the roof, was an “improvement to real property” as intended within the statute.  He further concedes that the hole too was a permanent improvement.  He asserts, however, that the district court erred in focusing on the hole rather than the cover.  Were the court to have focused on the cover, Schmidt argues, it would have found that such a temporary, removable item could not be considered a “permanent addition or betterment” of the property as required for statutory protection.  He cites Wiita v. Potlatch Corp., 492 N.W.2d 270 (Minn. App. 1992), to support this proposition.

In Wiita, a bricklayer foreman was injured when concrete blocks fell from a mechanical crane during construction of a fire wall.  492 N.W.2d at 270.  This court, in reversing the district court’s summary judgment, found section 541.051 inapplicable under the circumstances because “the blocks were not a part of the improvement because they were not permanently affixed to the wall.”  Id. at 272.  We therefore found no causal connection between the injury and the condition of the improvement to real property.  Id.

Schmidt likens the present case to Wiita, claiming that the plywood cover is not “permanently affixed,” and is therefore not “part of the improvement.”  But Witta differs significantly from the present case because that accident “occurred in the early morning when the wall was covered and no work was being done on it,” and occurred because the respondent had replaced a hydraulic crane with a mechanical crane typically used for more gross movement.  Id. at 270.  In other words, the accident arose “not from the condition of the improvement, but from the defective condition or negligent operation of the crane.”  Id. at 272.  Here, however, the accident occurred while workers were preparing the hole for the installation of a roof hatch, and there is a clear causal connection between the injury and the condition of the improvement to real property.

In O’Connor v. M.A. Mortenson Co., this court was faced with a similar argument after a construction worker was injured on a staircase.  424 N.W.2d 92, 93 (Minn. App. 1988), review denied (Minn. July 28, 1988).  The steps in the staircase consisted of metal pans temporarily filled with 2 X6’s.  Id.  Unbeknownst to the worker, one stair’s wooden filler was missing, and he fell as he attempted to step onto it.  Id.

Rather than debating whether the injury was caused by the hole or the absence of its wood filler, the court applied “common sense” and found that the staircase, though temporary, was an “improvement” as intended by statute.  Id. at 94.  This “common sense” approach has been repeated consistently in the context of Minn. Stat. § 541.051. E.g., Williams v. Tweed, 520 N.W.2d 515 (Minn. App. 1994) (applying “common sense” to determine that covering abandoned septic system was “improvement”), review denied (Minn. Oct 27, 1994); Kline v. Doughboy Recreational Mfg. Co., 495 N.W.2d 435 (Minn. App. 1993) (applying “common sense” to determine removable swimming pool an “improvement”).

Applying “common sense” here, we agree with the district court that Schmidt’s injury was caused by an “improvement to real property” within the meaning of the statute.  The injuries were caused by the hole.  The hole, it is undisputed was part of an overall “improvement to real property.”  The plywood cover, once removed, made the hole a “defective or unsafe condition” of this “improvement to real property.” 


“Persons in Possession”


Schmidt next argues that Weis was a “person in possession” of the property by its contracts and actions, and that his claim therefore falls into the exception to the two-year statute of limitations listed in Minn. Stat. § 541.051, subd. 1 (c).  This argument, however, runs contrary to prior decisions of this court and the Minnesota Supreme Court.

Subdivision 1(c) states that the two-year limitations period does not apply “to actions for damages resulting from negligence in the maintenance, operation or inspection of the real property improvement against the owner or other person in possession.”  Minn. Stat. § 541.051, subd. 1(c).  The Minnesota Supreme Court has observed that the exception refers to activities (maintenance, operation and inspection) generally occurring after an improvement is built, which are normally performed by an owner or tenant.  Ocel v. City of Egan, 402 N.W.2d 531, 534 (Minn. 1987). “The intent of the exception appears to be . . . to leave undisturbed the limitation period for ordinary landowner’s liability.”  Id. 

While acknowledging Ocel, Schmidt argues that an exception to the general rule should exist here because Weis was in “‘possession and control’ over the work site and had the responsibility to ‘maintain’ it in a safe manner.”  This court has explicitly rejected this argument, however.  In O’Connor, the injured worker attempted to circumvent the statute of limitations by arguing that the general contractors and subcontractors were in “possession and control” of the site.  O’Connor, 424 N.W.2d at 94.  This court rejected the worker’s assertions, finding his claims were not for negligently performing “maintenance” as intended by statute, but rather for “‘constructing’ and ‘designing’ the improvement, activities which are expressly covered by the 2-year limitations period.”  Id. (quoting Ocel, 402 N.W.2d at 534).

            Similarly here, Schmidt’s claims revolve generally around a construction project, and specifically around the installation of a hatch. This hatch is undisputedly an “improvement” to the property.  As such, Weis was not performing a “maintenance” function ordinarily performed by an owner or tenant, and the maintenance and operations exception in Minn. Stat. § 541.051, subd. 1(c), has no application. 


Applicability of Minn. Stat. § 541.051 to Contractual Obligations


Schmidt’s final argument is that Weis had an enhanced duty created by contract that renders the two-year statute of limitations inapplicable.  He cites Lemmer v. IDS Props., 304 N.W.2d 864 (Minn. 1980), as standing for the proposition that a contractor who has undertaken a duty to assure worksite safety is a “person in possession” of the property, and that therefore the statute is “expressly inapplicable.”

            Schmidt’s interpretation of Lemmer is incorrect.  Though Lemmer deals with the assumption of contractual duties, as Schmidt asserts, the two-year statute of limitations of Minn. Stat. § 541.051 was never mentioned in the decision, nor was its application raised by the parties.  Because the statute was not at issue in the case, Lemmer does not imply that contractual obligations somehow supercede the statute.  In fact, such an argument contradicts the clear language of the statute, which states that the statute applies to all actions, be they “in contract, tort, or otherwise.”  Minn. Stat. §  541.051, subd. 1(a).

Once more, were we to adopt Schmidt’s argument, we would essentially be rendering section 541.051 applicable only to those contractors that deviate from standard practice.  Ivan Russell, an “expert in work safety” hired by Schmidt for this action, states that it is standard practice for general contractors to assume a contractual obligation to keep the premises safe during construction.  If we read that all such contractors, after signing a standard construction contract, became “possessors of property” under the statute, almost no contractor would be protected.  A statute should not be interpreted in a manner that would render it meaningless.  See State v. Loge, 608 N.W.2d 152, 156 (Minn. 2000). 

Because (1) we conclude that appellant’s injuries arose “out of the defective and unsafe condition of an improvement to real property;” (2) Minnesota law states that contractors are not “persons in possession” for statutory purposes; and (3) a builder’s contractual safety duties do not supercede the statute, we affirm the district court’s order granting summary judgment in this matter.


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

[1] Pursuant to stipulation, Schmidt’s claim against High Five was dismissed.