This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







Chris Mitchell,





Mall of America,



Does 1-10,




Filed May 3, 2005


Huspeni, Judge*



Hennepin County District Court

File No. PI 03-012330



David Max Van Sickle, 413 Wacouta Street, Suite 100, St. Paul, MN 55101 (for appellant)


Burke J. Ellingson, Brendel & Zinn, Ltd., 8519 Eagle Point Boulevard, Suite 110, Lake Elmo, MN 55042 (for respondent)



            Considered and decided by Minge, Presiding Judge, Wright, Judge, and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N


            In challenging the district court’s award of summary judgment to respondent, appellant argues that genuine issues of material fact were raised in discovery and that his claim was entitled to survive summary judgment.  Because there are no genuine issues of material fact, summary judgment was proper and we affirm.


Appellant Chris Mitchell, a resident of Dixon, Missouri, visited respondent Mall of America in June 1997.  On the last day of his visit, at or about 9:30 p.m., appellant decided to rest on a bench on the mall’s second floor.  Shortly thereafter, he claims to have seen a security guard hurriedly ascend the stairs near where appellant was seated.  At or about 10:00 p.m., appellant decided to leave the mall by those stairs.  As he was descending the stairs, he slipped and fell to the bottom of the staircase.[1] 

Appellant did not know whether he slipped on the first, second, third, or fourth step, nor does he know what caused his injury.  At the scene, he speculated a pencil or golf tee could have been the cause of the fall.  He claims a security guard who responded to the incident told him that there was soda on the first step.  The written accident report of that security guard states, however, that “the area was immediately inspected:  no foreign substances were found.” 

Appellant also claims that an acquaintance, James Murphy, a resident of Granite City, Illinois, witnessed the incident.  Neither man had knowledge of the presence of the other at respondent mall in June 1997, however, and Murphy did not approach the scene of appellant’s fall when it occurred.  Appellant alleges that his discovery of Murphy’s presence on the day of the fall was a result of pure happenstance—a chance meeting at a restaurant in Granite City “several years after the accident.”  Murphy claims that, though he did not see appellant fall, he did see appellant at the bottom of the stairs after the fall; though he did not go to appellant’s aid, he claims he saw about a ten-inch puddle of a pinkish or reddish liquid at the top of the stairs. 

Appellant has a long history of physical disabilities, which had resulted in a diagnosis of degenerative osteoarthritis in his back, neck, hip, and knees prior to the accident.  Appellant alleges that respondent’s negligence resulted in further injuries, which exacerbated his existing condition.

The district court awarded summary judgment to respondent, and this appeal followed. 


On appeal from summary judgment, this court asks 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).  This court views the evidence in the light most favorable to the party against whom summary judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

The district court properly grants summary judgment when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.”  Minn. R. Civ. P. 56.03.  No genuine issue of material fact exists if the nonmoving party relies on evidence that merely creates a metaphysical doubt as to a factual issue and that is not sufficiently probative to permit reasonable persons to draw different conclusions.  DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).  If the record lacks proof on any of the requirements for a negligence claim, a defendant is entitled to summary judgment.  Funchess v. Cecil Newman Corp., 632 N.W.2d 666, 672 (Minn. 2001).      

            A prima facie case of negligence requires evidence of: (1) a duty owed by the defendant; (2) a breach of that duty; (3) causation; and (4) injury.  Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 157 (Minn. 1982).  Whether a duty exists is a question of law, which this court reviews de novo.  Larson v. Larson, 373 N.W.2d 287, 289 (Minn. 1985).

Appellant’s negligence claim arises from the alleged breach by respondent of its duty of reasonable care by failing to warn of or remedy the liquid spill, which, appellant claims, resulted in his injuries.  A property owner has a duty to use reasonable care to prevent persons from being injured by conditions on the property that represent foreseeable risk of injury.  Hanson v. Christensen, 275 Minn. 204, 212, 145 N.W.2d 868, 874 (1966).  But even when landowners owe persons a duty to keep and maintain their premises in a reasonably safe condition, they are not insurers of safety.  Wolvert v. Gustafson, 275 Minn. 239, 241, 146 N.W.2d 172, 173 (1966).  Unless the dangerous condition actually resulted from the direct actions of a landowner or his or her employees, a negligence theory of recovery is appropriate only where the landowner had actual or constructive knowledge of the dangerous condition.  Messner v. Red Owl Stores, 238 Minn. 411, 413, 57 N.W.2d 659, 661 (Minn. 1953).  To prevail on the negligence claim, the plaintiff has “the burden of proving either that defendant caused the dangerous condition or that it knew, or should have known, that the condition existed.”  Id. at 415, 57 N.W.2d at 662. 

Constructive knowledge of a hazardous condition may be established through evidence that the condition was present for such a period of time so as to constitute constructive notice of the hazard.  Anderson v. St. Thomas More Newman Ctr., 287 Minn. 251, 253, 178 N.W.2d 242, 243-44 (1970).  But speculation as to who caused the dangerous condition, or how long it existed, warrants judgment for the landowner.  See Bob Useldinger & Sons, Inc., v. Hangsleben, 505 N.W.2d 323, 328 (Minn. 1993) (affirming grant of summary judgment where nonmoving party engages in mere speculation and conjecture); Messner, 238 Minn. at 413-15, 57 N.W.2d at 661-62 (grant of judgment notwithstanding verdict proper where there was no direct evidence as to how a banana peel came to be on the floor, or how long it had been there). 

Appellant argues that the spill was foreseeable, and that respondent had constructive knowledge of it.  Appellant presented evidence of the spill to the district court only through the recorded interview of James Murphy.  Murphy claims he saw a “pink colored liquid” on the steps after appellant’s fall.  Appellant contends that he slipped and fell as a result of this liquid.  Appellant argues that respondent had actual notice, or at least constructive notice, of the spill because he saw a security guard walk up the stairs prior to his fall.  In addition, through the recorded statement of Murphy, appellant claims that there was a trash receptacle at the top of the stairs, and that due to the location of the trash receptacle there was a foreseeable risk that trash would miss the receptacle and result in a dangerous condition.[2]  Thus, argues appellant, the existence of these material fact issues precluded an award of summary judgment.   

Respondent counters that appellant’s claims rest on mere speculation, and summary judgment in respondent’s favor was proper.  Specifically, respondent attacks the credibility of Murphy and insists that appellant cannot prove the existence of a puddle of liquid near the stairs.  Respondent argues further that even if evidence of a puddle of liquid was credible, a fact-finder would be required to engage in speculation regarding how long the spill had existed and whether constructive knowledge could be imputed to respondent.  Finally, respondent argues that the spill would have been an “open and obvious” hazard, creating yet an additional defense for respondent.

            In a well-reasoned opinion awarding summary judgment to respondent, the district court stated:

[Appellant] offers no evidence that he encountered a foreign substance on the staircase.  [He] did not notice any foreign substance while walking down the stairs.  [Respondent’s] security officer that helped [appellant] after he fell found that there were no spills on the stairs.  The only evidence that there was a spill on the stairs comes from Murphy, and he did not witness [the] fall. 


[Appellant] . . . would . . . not be able to maintain his negligence claim since he has not presented any evidence that [respondent] created the condition or was aware of foreign substance.


Furthermore, [appellant] is unaware of the length of time the spill was on the stair.  Therefore, the Court finds that summary judgment is also appropriate since [respondent] did not have actual or constructive knowledge of the spill on the stairs.


The district court relied on Rinn v. Minn. State Agric. Soc’y, in recognizing that it could not find the spill on the stairs an “open an obvious” hazard.  611 N.W.2d 361, 364 (Minn. App. 2000) (recognizing conditions such as a puddle in this case as “obvious” as a matter of law would extend the “open and obvious” defense to relatively obscure dangerous conditions, and, in turn, may allow knowing, careless landowners to escape responsibility for less-apparent dangerous conditions created by their negligent actions).  Nevertheless, the district court concluded that the evidence did not adequately support appellant’s claim that respondent either created the condition or had notice of the condition.  Upon close examination of the record, we conclude that the determination of the district court was sound.

            While the observations Murphy recites in his recorded interview are strongly (and arguably persuasively) attacked by respondent as lacking in credibility and as directly contradicting the accident report of the security guard, we recognize that this court must leave credibility determinations to the fact-finder.  See Sigurdson v. Isanti County, 386 N.W.2d 715, 721 (Minn. 1986) (stating an appellate court cannot judge the credibility of a witness or the weight, if any, to be given to testimony).  Murphy’s statement, thus, appears to create more than a “mere metaphysical doubt” as to the existence of the spill.  See DLH, 566 N.W.2d at 71 (holding that for purposes of challenging summary judgments, evidence which creates mere metaphysical doubt does not create material fact). 

Even if we were to assume, however, that a spill did exist, there is still a lack of evidence to support appellant’s claims of constructive knowledge or forseeability.  Appellant’s evidence regarding duration of the spill is based on mere speculation and conjecture.  See Hangsleben, 505 N.W.2d at 328 (stating that mere speculation, without some concrete evidence, is not enough to avoid summary judgment); Messner, 238 Minn. at 413, 57 N.W.2d at 661 (stating that the plaintiff has the burden of proving either that defendant caused the dangerous condition or that it knew, or should have known, that the condition existed); Rinn, 611 N.W.2d at 365 (determining that speculation on the cause or duration of the dangerous condition is insufficient evidence of negligence to withstand summary judgment against the claim).

In Rinn, a slip-and-fall case similar to that now before us, an injured party fell as she was descending the steps of a coliseum at a horse show.  611 N.W.2d at 363.  There, as is arguably the situation here, the step was covered in some type of liquid.  Id.  The injured party did not present any evidence showing who made the puddle, what the liquid was, or that the landowner was on notice of the spill. 365.  The injured party further testified that the puddle was not on the step when she had ascended the stairs 30 minutes prior to the fall, so the spill must have been made within that 30-minute time period.   Id.  As a result, this court determined that the 30‑minute period was not sufficient to warrant a determination that the defending party had constructive notice, noting that the puddle “could have been made only moments before appellant’s fall, since there is no evidence suggesting that others had walked through the puddle.”  Id. 

Here, there is no evidence that a spill existed for a long enough time to give respondent constructive notice.  Although appellant claims that the security guard should have seen the spill, thus putting respondent on actual or constructive notice, such claim is based on speculation that the spill actually existed at the time the security guard walked up the steps.  Murphy stated that he was unsure whether or not anyone else had stepped in the spill; a further indication that an existing puddle could have been made only moments before appellant’s fall.  Finally, appellant has no first-hand knowledge of what exactly caused him to fall. 

Based on the lack of evidence in the record giving rise to a genuine issue of material fact, we conclude that the district court properly granted summary judgment on this issue. 

Lastly, we reject appellant’s argument that existence and placement of a trash receptacle resulted in a foreseeable risk.  Evidence of the existence of trash receptacle at the time of appellant’s injury is based on Murphy’s recorded interview.[3]  Even if we were to assume the existence of a trash receptacle at the time of the accident, the record lacks sufficient evidence of the location or proximity to the stairs.  Importantly, there was no evidence that debris from the trash receptacle had made its way to the stairs.  As a result, we conclude that appellant has failed to meet his burden that the trash receptacle resulted in his accident. 


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

[1]  Appellant descended with his left hand on the rail; in his right hand was his overnight bag for his return flight home. 

[2]  Appellant cites an unpublished case, Scott v. Best Steakhouse, in support of the proposition that respondent created a foreseeable risk when it placed a trash receptacle near the stairs.  No. C4-00-1415, 2001 WL 50898 (Minn. App. Jan. 23, 2001).  Scott is unpublished, and therefore not precedential.  See Minn. Stat. § 480A.08, subd. 3(c) (2004); Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800-01 (Minn. App. 1993) (stating unpublished opinions of this court are not precedential).  Further, photo evidence of the location of trash receptacles and staining surrounding those receptacles at the time of injury was present in Scott.  Such evidence is not present in this case.

[3]  A paralegal, now deceased, viewed the site three years after appellant’s injury and reported the presence of a trash receptacle at the top of the stairs at that time.  The time period of that observation is too remote to be considered reliable evidence.