This opinion will be unpublished and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
Adam Joseph Collins,
Filed December 19, 2006
Dakota County District Court
File No. C5-05-7686
James S. Ballentine, William R. Sieben, Schwebel, Goetz & Sieben, P.A., 5120 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402-2246 (for respondent)
Ryan M. Zipf, League of
Considered and decided by Willis, Presiding Judge; Shumaker, Judge; and Crippen, Judge.*
U N P U B L I S H E D O P I N I O N
Appellant city challenges the denial of its motion for summary judgment, arguing that the district court erred by not applying recreational-use immunity to respondent’s personal-injury claim. We reverse and remand for the entry of judgment for appellant.
June 19, 2004, respondent Adam Collins was playing in a softball tournament held
Collins testified at his deposition that he looked at the fence after he fell and saw that it was “sticking out 4 to 5 inches” at the point where he made contact. Collins also testified that he “thought” he would have seen the bulge in the fence if he had inspected it before the game. In addition, Collins offered the affidavit of David Daubert, a professional engineer who inspected the fence. Daubert stated that the fence had “been crushed down so that it [was] no longer vertical at the bottom” and was “exposed to being stepped on.” Daubert concluded that the “fence was in poor and dangerous condition,” that the fence’s “sagging . . . did not occur in one season,” and that the “fence had been in a poor condition for some time.” Although a large number of players use the ballpark, the city had received no prior complaints about, or report of an injury caused by, the bulge in the fence.
The city moved for summary judgment,
arguing that it has recreational-use immunity under Minn. Stat. § 466.03,
subd. 6e (2004); that Collins assumed the risk of injury; and that when Collins
joined the league, he signed a waiver of any claims against the city arising
from any injury he may suffer while participating as a player. Relying on Lishinski
v. City of Duluth, 634 N.W.2d 456 (
D E C I S I O N
a district court denies a motion for summary judgment that is based on a governmental-immunity
claim, this court has jurisdiction to review that order as an exception to the
general rule that an order must dispose of the entire case before it may be
party asserting immunity under a statute has the burden of establishing the
facts necessary to satisfy the statute’s requirements. Fear v. Indep. Sch. Dist. No. 911, 634
N.W.2d 204, 209 (
is no dispute that this case is governed by Minn. Stat. § 466.03, subd. 6e
(2004), commonly known as the recreational-use-immunity statute. Under this statute, a municipality is not
liable for a claim arising from its construction, operation, or maintenance of
a public park unless the municipality would be liable as a private person to a
The city concedes that the bulge in the fence was an artificial condition that it maintained and that it did not warn Collins of the existence of the bulge. Instead, the city argues that the bulge in the fence was not a condition that satisfied the second element of section 335 because it was not likely to cause death or serious bodily injury as a matter of law, and the city did not have actual knowledge that it was dangerous. The city also argues that the bulge in the fence was not a condition that satisfied the third element of section 335 because, in any event, it was not concealed.
be concealed, the condition at issue must be “of such a nature that [the
possessor of land] has reason to believe that . . . trespassers will not
discover it.” Restatement (Second) of
Torts § 335(a)(iii). In applying
Collins argues that there is a fact
question regarding “whether [he] should have discovered the hazardous condition
caused by the negligent maintenance of the fence during the heat of the competitive softball game.” We disagree. Collins testified at his deposition that he
thought he would have seen the bulge in the fence if he had inspected the fence
before the game, and he cites no authority for his “in-the-heat-of-the-game”
argument. A possessor of land is
entitled to assume that a trespasser “‘will realize that no preparation has
been made for [his] reception and will, therefore, be on the alert to observe
the conditions which exist upon the land.’” Sirek v.
State, Dep’t of Natural Res., 496 N.W.2d 807, 810 (
points to this court’s decision in Lishinski
v. City of Duluth, 634 N.W.2d 456 (
The issue of concern in Lishinski, however, does not exist here. Collins has not claimed that anything obstructed his view of the bulge in the fence. Thus, Lishinski is inapposite.
Because Collins admitted that he would have seen the fence’s condition if he had inspected it, he has not raised a question of material fact regarding whether the condition of the fence was visible. Because we conclude that, as a matter of law, the bulge in the fence was not concealed, we do not reach the city’s other arguments. We reverse and remand for the entry of judgment for the city.
Reversed and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.