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be unpublished and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
State of Minnesota Department of Human Services,
ReliaStar Life Insurance Company,
February 21, 2006
File No. PI 03-019416
Wilbur W. Fluegel, Fluegel Law Office, 150 South Fifth Street, Suite 3475,
Michael A. Bryant, Bradshaw & Bryant, 1505 Division Street, Waite Park, MN 55387 (for appellant)
Terri L. Hommerding, Bruce P. Candlin & Associates, 380 St. Peter Street, Suite 603,
St. Paul, MN 55102 (for respondent)
W. Paul Otten, Law office of Otten & Associates, 108
Professional Plaza, 1601 East
Highway 13, Burnsville,
and decided by Worke,
Presiding Judge; Willis,
Judge; and Minge,
U N P
U B L I S H E D O P I N I O N
challenges summary judgment dismissing his claims. Because the district court did not err in
determining that appellant was a trespasser, that respondent only owed appellant
a limited duty, and that appellant’s claims were barred by the statute of
repose in Minn. Stat. § 541.051, subd. 1(a) (2004), we affirm.
Kevin Jackson and some friends were in downtown Minneapolis on a fall evening. Because he had forgotten his identification, Jackson asked a man on
the street to buy him cigarettes. When Jackson took out his money,
the man grabbed the money and ran. Jackson chased the man,
eventually reaching a parking lot on property owned by respondent ReliaStar
Life Insurance Company (“ReliaStar”). Not realizing he had come to the ledge of a
downward-sloping driveway leading to an underground loading dock, Jackson hopped over a
short hedge of bushes, fell as he landed several feet below, and was severely
driveway and building were constructed in 1964.
There are four no-trespassing signs near ReliaStar’s building. There are security guards on duty at the
building at all times and one of their duties is to keep trespassers off the
premises. No evidence was produced of
other incidents involving the ledge and falling onto the driveway. Jackson
presented the statements of an expert that the driveway was defective because it
should have had a guardrail at the ledge and that the lack of an adequate
guardrail directly contributed to Jackson’s
district court granted summary judgment against Jackson on four grounds: (1) the statute of
repose in Minn. Stat. § 541.051, subd. 1(a) (2004), barred his claims
because the building was substantially completed more than ten years prior to
his injury; (2) the exception to that statute for negligent maintenance,
operation, and inspection did not apply; (3) even if Jackson’s negligence claim
was not time-barred, he was a trespasser and the limited duty that landowners
owe to trespassers was satisfied; and (4) Jackson’s claims based on violations
of the Uniform Building Code failed because the applicable edition of the code
did not require guardrails on ReliaStar’s driveway and because those claims
were also time-barred by the same statute of repose. This appeal followed.
D E C I S I O N
reviewing summary judgment, an appellate 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,
1990). Summary judgment is proper when
the evidence in the record shows there is no genuine issue of material fact and
either party is entitled to a judgment as a matter of law. Minn. R.
Civ. P. 56.03; DLH, Inc. v. Russ, 566
N.W.2d 60, 69 (Minn.
1997). “On appeal, the reviewing court
must view the evidence in the light most favorable to the party against whom
judgment was granted.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). A genuine issue of material fact does not
exist when “the nonmoving party presents evidence which merely creates a
metaphysical doubt as to a factual issue and which is not sufficiently
probative with respect to an essential element of the nonmoving party’s case to
permit reasonable persons to draw different conclusions.” DLH,
566 N.W.2d at 71.
first issue is whether the district court erred in granting summary judgment on
negligence claim on the basis that Jackson
was a trespasser. In general, a
landowner owes no duty to trespassers. Croaker ex rel. Croaker v. Mackenhausen,
592 N.W.2d 857, 860 (Minn.
1999). “A trespasser is ‘one who enters
or remains on the [premises] without the express or implied consent of the
possessor of land.’” Reider v. City of Spring
480 N.W.2d 662, 666 (Minn. App. 1992) (quoting
Rieger v. Zackoski, 321 N.W.2d 16, 20
1982)), review denied (Minn. April 13, 1992).
Jackson argues that a
factual issue exists whether he was impliedly invited onto respondent’s
property, but does not provide any factual support for this claim. Jackson
ran across respondent’s property in hot pursuit of someone who took his
money. Jackson had no business to conduct on the
property and entered the darkened, landscaped grounds of an office building
late at night, well after business hours.
In his haste, he did not observe the no-trespassing signs posted on the
property. The district court did not err
in concluding that Jackson
was a trespasser and that this was not a factual issue.
Jackson argues that he
was not a trespasser under Minneapolis City Ord. § 385.380, prohibiting
trespassing. That ordinance creates a
petty offense of trespass and
requires that the landowner or an
agent be aware of the trespass before a person is charged with being a
trespasser. Id. To avoid prosecuting unintentional or
harmless trespassers, this criminal ordinance restricts who is considered a
trespasser. There is not a parallel
policy of favoring civil suits by uninvited visitors that justifies such a
stricter test. See Sirek by Beaumaster v. State, Dep’t of Natural Res., 496 N.W.2d
807, 809-10 (Minn.
1993). Jackson provides no support for the position
that a local criminal ordinance can define a trespasser for the purposes of a
Minnesota courts have adopted the
Restatement (Second) of Torts on a landowners’ limited duty to trespassers:
A possessor of land who knows, or from
facts within his knowledge should know, that trespassers constantly intrude
upon a limited area of the land, is subject to liability for bodily harm caused
to them by an artificial condition on the land, if
(a) the condition
(i) is one which the possessor has
created or maintains and
(ii) is, to his knowledge, likely to
cause death or seriously [sic] bodily harm to such trespassers and
(iii) is of such a nature that he has
reason to believe that such trespassers will not discover it, and
(b) the possessor has failed to
exercise reasonable care to warn such trespassers of the condition and the risk
at 810 (quoting Restatement (Second) of Torts § 335 (1965)). ReliaStar owed Jackson a limited duty only if these
requirements are met.
claims that no duty exists under this standard for several reasons. First, the only evidence that Jackson identifies that
ReliaStar knew or should have known of a constant intrusion is that there are
several no-trespassing signs on the property and that security guards monitor
the property for trespassers. This is
negative evidence of “knowledge.” These protective
measures are not sufficient evidence that ReliaStar knew or should have known
of constant intrusion on the area near the driveway.
there is an issue whether the unprotected ledge and drop off constitute a
condition that is likely to cause death or serious bodily harm. Courts have generally required that such
conditions be inherently dangerous, such as high-voltage electrical lines. Johnson
v. State, 478 N.W.2d 769, 773 (Minn. App.
1991) (citing Restatement (Second) of Torts § 335 (1965)), review denied (Minn. Feb. 27,
1992). Further, the condition must be
“likely” to cause death or serious bodily harm.
In Johnson, the court held
that a raised joint in a sidewalk was not “likely” to cause the required harm:
“The remote possibility that death or serious bodily harm could result any time
a person falls does not make a raised sidewalk joint rise to the level of an
inherently dangerous condition.” Id. Similarly, in Stiele ex rel. Gladieux v. City of Crystal, the court held that a three- to
four-foot-high signpost next to a satellite restroom also did not meet this
requirement of dangerousness. 646 N.W.2d
251, 255 (Minn.
App. 2002). In Stiele, the court also noted that the landowner must know of the
condition’s potential for causing harm and that since the city had received no
prior complaints, it was not aware of the danger. Id.
the allegedly dangerous condition is a sloping driveway leading down to a
loading dock. The driveway itself is not
inherently dangerous. No other incidents
of injuries due to the driveway were reported to ReliaStar. There is not sufficient evidence to raise a
factual dispute as to whether the ledge of the driveway was a condition likely
to cause death or serious bodily harm, or that ReliaStar was aware of any
third challenge that Jackson faces under the Restatement rule is establishing
that ReliaStar had reason to believe trespassers would not discover the
condition. Restatement (Second) of Torts
§ 335(a) iii (1965). This standard depends
on whether the condition was obvious, not on whether the injured party actually
saw the danger. Steinke v. City of Andover, 525
N.W.2d 173, 177 (Minn.
1994). A condition is not concealed if a
brief inspection would reveal it. Schaffer v. Spirit
Mountain Recreation Area Auth.,
541 N.W.2d 357, 360 (Minn.
App. 1995). In Steinke, the court held that a drainage ditch was not hidden
because it was not obstructed from view.
525 N.W.2d at 177. The court
noted a trespasser’s “duty to be aware of his surroundings” and further noted
that Steinke was traveling at an excessive rate of speed. Id.
Here, the most cursory
inspection would have revealed the driveway.
Chasing a thief did not free Jackson
to ignore his surroundings. He took the
risks of hot pursuit. It is not
reasonable to require landowners to so maintain their property that even well-intended,
nighttime trespassers who are chasing thieves are protected from the risk of
falling. There is not sufficient
evidence to raise a factual dispute over whether ReliaStar had reason to
believe trespassers would discover the driveway.
Jackson failed to present sufficient evidence to
create a jury question whether ReliaStar breached any duty to him as a
trespasser, the district court did not err in granting summary judgment on Jackson’s negligence claim on the basis of Jackson’s status as a
second issue is whether the district court erred in granting summary judgment
negligence per se claim based on alleged violations of the Uniform Building
Code. This claim is based on strict liability and differs
from the duty owed to trespassers. Although
we did not reach the issue of the application of the statute of repose in Minn.
Stat. § 541.051, subd. 1(a) (2004), to Jackson’s
negligence claim, we do consider the application of the statute to Jackson’s negligence per
Stat. § 541.051, subd. 1(a), provides a ten-year statute of repose for
claims based on improvements to real property:
Except where fraud is involved, no
action by any person in contract, tort, or otherwise to recover damages for any
injury to property, real or personal, or 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
or against the owner of the real property more than two years after discovery
of the injury . . . nor, in any event shall such a cause of
action accrue more than ten years after substantial completion of the
The statute goes on to provide an
exception to the statute of repose for certain claims against owners:
Nothing in this section shall 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
subd. 1(c) (2004).
Minnesota Supreme Court recently interpreted subdivision 1(c) in Olmanson v. LeSueur County, 693 N.W.2d
876, 880-81 (Minn.
2005). In that case, the owner of a golf
course built a culvert under a road to allow golfers to pass through. 693 N.W.2d at 878. More than ten years later, Olmanson was injured
when his snowmobile struck the culvert. Id.
at 878-79. The court discussed a
landowner’s duty to inspect property for unreasonable risks and either repair
the conditions or provide warnings. Id.
at 880-81. The court held that the
exception in Minn. Stat. § 541.051, subd. 1(c), allowed Olmanson’s claims based
on the landowner’s “ordinary landowner liability for negligent maintenance,
operation, and inspection of real property improvements” to proceed as an
exception to the statute of repose. Id.
the ReliaStar driveway was substantially completed in 1964. Jackson
was injured in 2001. Jackson claims ReliaStar’s building should
have complied with provisions of the Uniform Building Code adopted in 1979 and
1997, years after the driveway was completed, that require guardrails for certain
ledges and ramps. Olmanson involved a culvert where the changing weather and other
conditions created an unsafe situation, a use (snowmobiling) that is
commonplace, especially in ditches and on golf courses, and modest, effective
corrective action like signage. See 693 N.W.2d at 878. Jackson
argues ReliaStar should have made structural retrofits such as guard rails along
a driveway ramp. Unlike Olmanson, such improvements cannot be
characterized as part of a landowner’s duty to maintain, operate, and inspect
his property with reasonable care. Jackson demands compliance
with building code changes adopted after the driveway was constructed. This goes beyond the exception to the statute
of repose found in Minn. Stat. § 541.051, subd. 1(c). Further, in Boyum v. Main Entree, Inc., this court held that because a
negligence per se claim based on a building code required a stricter standard
of care than common law negligence, the negligence exception to the statute of
repose should not apply. 535 N.W.2d 389,
392 (Minn. App. 1995), review denied
(Minn. Sept. 28, 1995).
negligence per se claim is barred by the ten-year statute of repose in Minn.
Stat. § 541.051, subd. 1(a), and that the district court did not err in
granting summary judgment.