This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Mall of America,
Filed May 3, 2005
Hennepin County District Court
File No. PI 03-012330
David Max Van
Burke J. Ellingson, Brendel & Zinn, Ltd.,
Considered and decided by Minge, Presiding Judge, Wright, Judge, and Huspeni, Judge.
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.
Mitchell, a resident of
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.”
claims that an acquaintance, James Murphy, a resident of
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 (
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.”
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.
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,
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.
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. 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.
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 (
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.
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. 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.
 Appellant descended with his left hand on the rail; in his right hand was his overnight bag for his return flight home.
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 (
 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.