This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
William David Byrne,
Filed January 9, 2007
Olmsted County District Court
File No. C3-04-4305
Daniel J. Heuel, O’Brien & Wolf, L.L.P., 206 South Broadway, Suite 611, P.O. Box 968, Rochester, MN 55903-0968 (for appellant)
Scott V. Kelly, Jay W. Ramos, Farrish Johnson Law Office, Chtd., 1907 Excel Drive, P.O. Box 550, Mankato, MN 56002-0550 (for respondent Kropp)
Robert G. Benner, Dunlap & Seeger, P.A., 206 South Broadway, Suite 505, Post Office Box 549, Rochester, MN 55903-0549 (for respondent Bjork)
Considered and decided by Ross, Presiding Judge, Klaphake, Judge, and Huspeni, Judge.*
Appellant William David Byrne slipped and fell while attempting to walk up the sloped apron of a driveway that serviced two multi-family dwellings in Rochester. The two properties, including the shared driveway, are owned by respondents Terry Kropp and Bryce Bjork. Because appellant’s fall occurred on the city’s right-of-way and because appellant could show no causal link between appellant’s fall and respondents’ snow and ice removal activities in the area, appellant failed to establish a prima facie case of negligence. We therefore affirm the district court’s grant of summary judgment to respondents.
district court shall grant summary judgment if the pleadings, discovery, and
affidavits show that there are no genuine issues of material fact and that
either party is entitled to judgment as a matter of law.
negligence claim consists of “(1) a duty owed by the defendant; (2) a breach of
that duty; (3) causation; and (4) injury.”
Rochester’s city ordinance defines “sidewalk” as “that portion of the street
between the curb line and the adjacent property line intended for the use of
Appellant claims, however, that while the evidence as to where he fell is conclusive, respondents nevertheless remain liable as “possessors” of the driveway apron because they exerted sufficient control over that area by virtue of their snow and ice removal activities to owe appellant a duty of care. As appellant points out, there is Minnesota case law that applies interchangeably the duty owed by a property owner or “possessor” to those who come onto their property. See, e.g., Isler v. Burman, 305 Minn. 288, 295, 232 N.W.2d 818, 821 (1975) (stating “possessor” or “one in control of premises” is under same duty as owner; church that held snowmobile party on farmer’s property after inspecting the property could owe duty of care to church member who attended party and was injured by dangerous condition on property); Peterson v. Balach, 294 Minn. 161, 174, 199 N.W.2d 639, 647 (1972) (establishing duty of care owed by “the owner (or the person responsible) to inspect, repair, or warn those who come upon the land as licensees or invitees” as the duty of reasonable care).
cited by appellant stem from the notion that “one who voluntarily assumes a
duty must exercise reasonable care.” Isler, 305
further claims, however, that there are fact questions regarding whether
respondents created artificial or dangerous conditions during their snow and
ice removal activities which would create a duty of care toward appellant. An abutting landowner may be liable for
extraordinary use of city property when the use is “of such a nature, in [k]
Here, our line-by-line review of respondents’ deposition transcripts offers no material facts that could lead to a finding that either respondent created an artificial or dangerous condition in the area of the driveway by his snow and ice removal activities. Respondent Kropp stated that he was very diligent at snow removal, using a plow and a snowblower, as well as salt and sand, to keep the driveway clear. Respondent Bjork stated that he hired someone to plow the driveway, that he chipped and removed ice from the driveway, and that he hired another person to chip and remove ice from the driveway. While record photographs show that a pool of water had accumulated at the end of the driveway on the date of appellant’s fall due to a mid-winter thaw, and the record also suggests that ice had melted from the snow banks on the sides of the driveway, which had been created, at least in part, by respondents’ snow and ice removal activities, the existence of these conditions is typical during the course of a Minnesota winter, and does not constitute evidence of an artificial or dangerous condition. We also note that on the date of appellant’s fall, a light drizzle and rain of approximately one-quarter inch had fallen during the day, and the temperature had hovered between 23° and 35° Fahrenheit. On this record, we conclude the evidence is insufficient to show that either respondent created an artificial or dangerous condition that would establish a causal link to appellant’s accident.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.