This opinion will be unpublished and

may not be cited except as provided by

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






Arthur A. Wojciehowski,





Labovitz Enterprises,



Filed ­­­May 31, 2005


Dietzen, Judge


St. Louis County District Court

File No. C3-03-603441


James W. Balmer, James B. Peterson, Tanna B. Schwarz, Falsani, Balmer, Peterson, Quinn & Beyer, 1200 Alworth Building, 306 West Superior Street, Duluth, MN 55802 (for appellant)


Eric D. Hylden, Nicole R. Weinand, Reyelts, Leighton, Bateman, Hylden & Sturdevant, Ltd., 700 Providence Building, 332 West Superior Street, Duluth, MN 55802 (for respondent)


            Considered and decided by Stoneburner, Presiding Judge; Hudson, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N



            In this negligence case, appellant Arthur Wojciehowski challenges the district court’s grant of summary judgment in favor of respondent Labovitz Enterprises.  Because we conclude the district court correctly determined that respondent did not owe appellant a duty of reasonable care, we affirm. 



            At approximately 7:30 a.m. on February 15, 2002, appellant drove into a gravel parking lot adjacent to the Missabe Building in Duluth.  Appellant’s employer, Krech Ojard and Associates (Krech Ojard), leased the parking lot and portions of the Missabe Building from respondent-owner.  Appellant exited his car and noticed that the snow-packed parking lot “was a sheer sheet of ice all the way down.”  Appellant cautiously began to walk toward the Missabe Building but slipped and fell, injuring his back, left shoulder, and head.  After appellant pulled himself to his feet, he made his way to the Missabe Building, where he notified the receptionist about the accident.  Respondent’s property manager, Barbara Perrella, was also notified of the accident and called Oneida Realty (Oneida), the vendor responsible for snow removal and sidewalk maintenance around the Missabe Building, to lay sand on the ice. 

In his deposition, appellant testified it was his opinion that the parking lot was icy because snow had melted the previous day and had refrozen overnight.  Appellant testified that he and other Krech Ojard employees joked about the slippery parking lot but failed to complain to anyone in the days before the accident, even though appellant knew Perrella personally.  Appellant stated that the parking lot had compacted snow but it was not fully iced over the day before the accident. 

            The amended lease (Lease) between respondent and Krech Ojard, signed July 25, 2001, provided that Krech Ojard employees would have exclusive use of the parking lot located adjacent to the Missabe Building, and that respondent-owner would arrange for snowplowing services, to be paid for by Krech Ojard.  The Lease stated that respondent would modify a loading dock near the parking lot to allow room for an employee stairway to the Missabe Building.  But the Lease was silent as to responsibility for parking lot maintenance.  Perrella testified that a third-party vendor provided snowplowing services for the parking lot, but all other maintenance was handled by Oneida, and Oneida employees were frequently on the premises.  Perrella added that respondent’s employees parked in a separate lot and rarely observed conditions in the Krech Ojard parking lot.

            In November 2003, appellant filed a complaint alleging that respondent was negligent in maintaining the parking lot.  The district court granted summary judgment for respondent, concluding that there was no negligence because respondent did not owe a duty of reasonable care to appellant.  This appeal follows.   


            Summary judgment may be granted if the pleadings, depositions, interrogatory answers, admissions, and affidavits reveal that there is no genuine issue of material fact and that a party is entitled to judgment as a matter of law.  Minn. R. Civ. P. 56.03.  In a summary-judgment proceeding, appellate courts determine if there are any genuine issues of material fact and if the lower court erred in its application of the law.  N. States Power Co. v. Minn. Metro. Council, 684 N.W.2d 485, 491 (Minn. 2004).  “The party opposing summary judgment may not establish genuine issues of material fact by relying upon unverified and conclusory allegations, or postulated evidence that might be developed at trial, or metaphysical doubt about the facts.”  Dyrdal v. Golden Nuggets, Inc., 689 N.W.2d 779, 783 (Minn. 2004). 

            A party defending against a negligence claim is entitled to summary judgment if there is a lack of proof on any of the following elements: (1) the existence of a duty of care; (2) breach of the duty of care; (3) injury; and (4) proximate cause between the breach of the duty of care and the injury.  Louis v. Louis, 636 N.W.2d 314, 318 (Minn. 2001).  “Any legal analysis of an action brought against a landowner alleging negligence must begin with an inquiry into whether the landowner owed the entrant a duty.”  Id.  Initially, appellant argues that there are outstanding genuine issues of material fact whether respondent owed him a duty of care, which proscribes the district court’s grant of summary judgment.  But “the existence of a legal duty is an issue for the court to determine as a matter of law.”  Id. (emphasis added). 

            Generally, a landowner does not have a duty to warn a tenant or an invitee of a physical harm if the danger on the land is known or obvious, unless the landowner should anticipate the harm despite its obvious character.  Baber v. Dill, 531 N.W.2d 493, 495-96 (Minn. 1995).  In his brief, appellant concedes that the condition of the parking lot was a known and obvious danger, but argues that respondent should have anticipated the potential harm of a slip and fall.  To establish that respondent should have anticipated the harm, appellant argues that respondent had constructive knowledge of the dangerous condition.  To prove knowledge, appellant has the burden to show that respondent knew, or should have known, that the dangerous condition existed.  Messner v. Red Owl Stores, 238 Minn. 411, 415, 57 N.W.2d 659, 662 (1953). 

            It is undisputed that respondent did not have actual knowledge of the icy parking lot and that neither appellant nor any other Krech Ojard employee notified respondent of the dangerous condition.  Appellant argues that respondent had constructive knowledge of the condition because the parking lot was covered with packed snow and had been slippery before the accident.  We disagree.  There is no indication in the record that respondent should have known about the alleged icy condition at the time of the accident.  Here, appellant speculates as to the cause and the duration of the icy condition by stating that the ice was a product of a typical winter thawing and freezing cycle.  See Rinn v. Minn. State Agric. Soc’y, 611 N.W.2d 361, 365 (Minn. App. 2000) (“[S]peculation as to who caused the dangerous condition, or how long it existed, warrants judgment for the landowner.”); see also Messner, 238 Minn. at 413, 57 N.W.2d at 661 (concluding that faulting defendant’s employees for dropping banana peels on floor of grocery store “would be too speculative and conjectural to be sustained”).  On this record, we conclude that there is no evidence establishing that respondent had either actual or constructive knowledge of an icy condition at the parking lot at the relevant time prior to the accident. 

            Constructive knowledge of a dangerous condition “may [also] be established through evidence that the condition was present for such a period of time so as to constitute constructive notice of the hazard.”  Rinn, 611 N.W.2d at 365.  But the estimated duration of time between the presence of ice in the parking lot on February 15, 2002, and appellant’s accident, was so limited that respondent cannot be charged with constructive knowledge under this theory.  Appellant testified that the parking lot was not covered with ice the day before the accident and that he arrived at the lot “first thing in the morning.”  Since the condition of the parking lot at the end of the work day before the accident was admittedly not dangerous and there is no indication in the record that the lot became especially dangerous at the beginning of the next work day, no sufficient time had elapsed to charge respondent with constructive knowledge of the ice at 7:30 a.m. the following morning.  See, e.g., Otis v. First Nat’l Bank of Minneapolis, 292 Minn. 497, 497-98, 195 N.W.2d 432, 433 (1972) (determining bank did not have constructive knowledge of puddle on floor because bank opened only 20 minutes before accident); Anderson v. St. Thomas More Newman Ctr., 287 Minn. 251, 253-54, 178 N.W.2d 242, 243-44 (1970) (concluding business did not have constructive knowledge of puddle on floor absent proof that puddle had been on floor for appreciable period of time before accident); Messner, 238 Minn. at 414, 57 N.W.2d at 661 (determining grocery store did not have constructive knowledge of banana peels on floor based on plaintiff’s statement that peels were shriveled and dark brown in color); Rinn, 611 N.W.2d at 365 (concluding existence of puddle on stairway for estimated 30 minutes before accident did not charge landowner with constructive knowledge).  Because appellant did not show a genuine issue of material fact existed as to whether the parking lot’s icy condition was present for a period of time to attribute constructive knowledge to respondent, respondent could not have anticipated the potential harm.   

            Appellant also contends that the Lease between respondent and Krech Ojard contemplated that respondent had a duty to inspect the parking lot.  But the Lease is between the owner and tenant, and there is no evidence tending to show that the Lease’s provisions extend to an employee of the tenant-employer.[1]  Appellant claims that because “regular inspection and maintenance of the parking lot was not assigned to Krech [Ojard] or to a third-party service vendor,” the duty to inspect remained with respondent.  However, this allegation is not supported by the record before us.  Appellant also asserts that since respondent modified the loading dock to permit Krech Ojard employees to access a stairway adjacent to the lot, that modification somehow created a duty.  But the modification of the loading dock has no causal relationship to the accident.  The crux of the matter is that respondent had no notice of an icy condition at the parking lot that would give rise to a duty to inspect.

            Finally, appellant’s reliance on Peterson v. W.T. Rawleigh Co., 274 Minn. 495, 144 N.W.2d 555 (1966), is unavailing.  In Peterson, the supreme court concluded that a business-landowner should have anticipated harm to elderly business invitees who had to traverse a slippery area between the business’s loading dock and its entryway.  Id. at 497-98, 144 N.W.2d at 558.  The Peterson court made special note that the business had actual notice of the elderly age and infirmity of those required to traverse the slippery area.  Id. at 497, 144 N.W.2d at 558.  Additionally, as respondent observes in its brief, the business in that case was physically located next to the slippery parking lot, so there was ample opportunity to anticipate potentially hazardous conditions.  Id. at 496, 144 N.W.2d at 557.

In our case, respondent’s headquarters, for purposes of constructive knowledge, were not located near the parking lot and its employees parked at a separate lot in a different location.  Additionally, nothing in the record indicates that Krech Ojard employees were elderly or had unique infirmities that should have been anticipated by respondent. 

Since there are no genuine issues invalidating the material fact that it was known and obvious to appellant that the parking lot was in a dangerous condition, and because respondent could not reasonably anticipate the dangerous conditions at the time of the accident, respondent did not owe appellant a duty of reasonable care and was not negligent.  The district court did not err by granting respondent’s motion for summary judgment.


[1] Whether Krech Ojard owed appellant a duty to provide for a safe workplace environment was not litigated before the district court, and we thus express no opinion on the issue.