This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Filed July 3, 2007
Reversed and remanded
Jackson County District Court
File No. 32-CV-05-111
Michelle Barone Osterbauer, Joseph J. Osterbauer, Christina M. Makens, Osterbauer Law Firm, 404 Third Avenue North, Suite 201, Minneapolis, MN 55401 (for appellant)
John F. Angell, Louise A. Behrendt, Stich, Angell, Kreidler & Dodge, P.A., The Crossings, Suite 120, 250 Second Avenue South, Minneapolis, MN 55401 (for respondent)
Considered and decided by Randall, Presiding Judge; Wright, Judge; and Harten, Judge.*
U N P U B L I S H E D O P I N I O N
The district court granted summary judgment to respondent landlord on appellant’s negligence action, ruling that respondent did not owe a duty of care to its tenant, appellant’s employer. Appellant argues that the district court erred because (a) there were disputed fact issues as to whether respondent exercised actual control over the premises; and (b) under the lease, respondent owed a duty of care to the tenant and its employees. We reverse and remand.
Appellant Roallen Morin worked for Water Conditioning of Mankato, Inc. (Culligan), from August 2000 through April 2004, when he was discharged for reasons unrelated to the present lawsuit. Culligan leased its building from respondent Motherwell Corporation.
On February 18, 2003, appellant was injured at work when he slipped and fell while walking down the steps from the loading dock. These steps were made out of stacked concrete blocks, and appellant attributed his fall to the fact that the top step was some 14 inches below the loading dock. The dock itself, which appellant described as waist high, is enclosed by the building and covered by its roof. Access to the dock from the outside may be gained through the garage door or service door.
Appellant obtained worker’s compensation benefits from his employer, Culligan, who is not a party to this lawsuit. Appellant sued respondent Motherwell, the owner of the building, in negligence. Respondent moved for summary judgment. The district court granted the motion and summary judgment was entered. This appeal followed.
D E C I S I O N
court will review a summary judgment to determine whether there are genuine
issues of material fact and whether the district court erred in applying the
v. Hance, 646 N.W.2d 225, 230 (
common-law negligence doctrine followed in
seeks to apply an exception to the general rule for situations in which the
landlord retained control over a particular area. Lillemoen
v. Gregorich, 256 N.W.2d 628, 631-32 (
Here, appellant argues that respondent exercised control because its officers were involved in Culligan’s business activities, including being listed in Culligan’s employee handbook as contacts, visiting the building once a year (although not to inspect the building), and participating in appellant’s termination. There is no support for this proposition; instead, control over the physical premises must be shown. See, e.g., Lillemoen, 256 N.W.2d at 631 (addressing issue of control over steps as to their maintenance in a safe condition).
Next, appellant contends that under the plain language of the lease, the landlord retained control and agreed to inspect, repair, and maintain the premises. Consequently, he argues that respondent owed him a duty of care and is liable for his injuries.
is a form of contract.”
Here, the lease contains express provisions regarding the duties to repair by both the tenant and the landlord.
VII. Repairs, Maintenance and Payment of Utilities.
A. The Parties agree that TENANT shall make all repairs as may be necessary to the exterior structure of the building wherein the Premises are located.
B. During the term hereof, Tenant shall keep the walls, roof, and present heating and cooling systems in a serviceable condition. In addition, Landlord shall be solely responsible for all repairs to and operation of the building, including but not limited to all grounds, sprinkler systems, parking lot, exterior windows and doors of the building, all interior building cleaning and maintenance, trash disposal services, janitorial services . . . plumbing repairs, and electrical repairs.
(Emphasis added.) Other provisions of the lease give the landlord the right to enter the premises to make repairs and to maintain the building. Further, the tenant may make alterations and improvements only as agreed to in writing by the landlord, and must bear the cost of restoring the premises to their original condition when the lease expires. The lease provides that no oral modification of the lease is effective and that any modifications must be made in writing and signed by the parties.
The district court, examining the definitions of the terms “exterior” and “structure,” concluded that the tenant was responsible for repairs because “[t]he staircase is logically included in the definition of exterior structure because the staircase is built and partially enclosed but on the exterior of the building and exposed to the outside air.” The parties, however, do not dispute that the loading dock area, including the steps, are part of the building; they are covered by the building roof and are 20 to 30 feet inside the garage; access to the dock from the outside may be gained only through a garage door or a service door. Under these facts, we cannot agree that as a matter of law the loading dock and its steps are on the “exterior” of the building.
On the other hand, it also is not clear under the lease as a matter of law that the steps are within the scope of the landlord’s responsibilities. “[S]ince the intent of the parties is unclear parol evidence is admissible to clarify this ambiguity.” Nord, 305 N.W.2d at 340. Further, the parol evidence does not present a clear answer either; respondent asserts that the evidence establishes that the tenant maintained the entire building. But appellant cites evidence that he complained to respondent regarding the condition of the stairs and the need to repair them, and contends that under the terms of the lease, the landlord then had the duty to repair. Consequently, the issue of whose duty it was to maintain and repair the stairs is a jury issue.
Reversed and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 The lease also provides that