This opinion will be unpublished and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
Metropolitan Airports Commission,
Hennepin County District Court
File No. 27-CV-05-017306
H. Rick Fritz,
Timothy R. Schupp, Andrea D. Kiehl, Flynn, Gaskins & Bennett LLP, 333 South Seventh Street, Suite 2900, Minneapolis, MN 55402 (for appellant)
Considered and decided by Minge, Presiding Judge; Toussaint, Chief Judge; and Kalitowski, Judge.
Appellant challenges the district court’s denial of its motion for summary judgment. Appellant argues that based on the mere-slipperiness rule and, in the alternative, statutory immunity under Minn. Stat. § 466.03, subd. 6 (2006), the district court should have accorded appellant governmental immunity. Respondent moves to strike an issue proposed by appellant in its statement of the case. Because we conclude that there are no genuine issues of material fact, that appellant is entitled to immunity under the mere-slipperiness rule, and that respondent’s motion to strike is moot, we reverse and deny respondent’s motion.
Metropolitan Airports Commission (MAC) is a governmental entity established to provide
and coordinate aviation services in the Twin Cities metropolitan area.
On the morning of November 5, 2003, Kuehl slipped on a thin patch of glare ice as she walked from her car to the elevator on the top level of the parking ramp. Kuehl claims that because the ice blended in with the concrete color of the lot’s surface, she did not notice the ice before she fell. There had been no precipitation on November 5, there was no snow on the roads or ground when Kuehl drove to work, and there was no snow on the ramp. The previous day it had snowed, followed by a light freezing drizzle which ended at approximately 10:00 a.m.; total precipitation had been .03 inches.
At the time of the slip-and-fall incident, MAC had hired an independent contractor to complete snow and ice removal. The contract provided:
Vendor shall be responsible to monitor weather conditions and when the snowfall is at 1” must arrive on site within two (2) hours and start snow operations. There may be times that MAC’s designated representative may call for additional snow removal or sanding (drifting, icy conditions, etc.).
There is no indication in the record that a MAC representative called the contractor to request sanding of the parking lot.
Kuehl sued MAC for negligence, seeking damages for injuries sustained as a result of the fall. Following discovery, MAC moved for summary judgment, claiming that it was entitled to governmental immunity under the mere-slipperiness rule and under Minn. Stat. § 466.03, subd. 6 (2006). The district court denied MAC’s summary-judgment motion. This appeal follows.
D E C I S I O N
proceeding to the merits, we consider Kuehl’s motion to strike the third issue
proposed by MAC in its statement of the case.
That issue is whether Kuehl produced sufficient evidence of MAC’s breach
of duty to survive summary judgment. Kuehl
moved to strike this issue because it is not related to MAC’s immunity
arguments. The United States Supreme
Court has rejected extension of immediate review to additional issues in
immunity appeals, unless those issues are inextricably intertwined with
immunity issues. Swint v.
listed in the statement of the case, MAC does not address this third issue in
its brief. Issues not briefed on appeal
are waived. Melina v. Chaplin, 327 N.W.2d 19, 20 (
basic issue on this appeal is whether the district court erred in denying MAC’s
motion for summary judgment based on governmental immunity. “Generally, an order denying a motion for
summary judgment is not appealable,” but an immediate appeal is permissible
when a district court denies a summary judgment motion based on a claim of
governmental immunity. McGowan v. Our Savior’s Lutheran Church,
527 N.W.2d 830, 832 (
appeal from a denial of summary judgment, this court determines whether there
are any genuine issues of material fact and whether the district court erred in
its application of the law. Otis v. Anoka-Hennepin Sch. Dist. No. 11,
611 N.W.2d 390, 392 (
applicability of immunity is a question of law, which we review de novo. Johnson
v. State, 553 N.W.2d 40, 45 (
A. Applicability of the Mere-Slipperiness Rule
narrowly stated, the issue is whether the district court erred by concluding
that MAC was not entitled to governmental immunity under the mere-slipperiness
rule. The mere-slipperiness rule is well
established. See Doyle v. City of
More than a century ago, our supreme court described the original rationale for the rule:
Upon such a state of facts, there can be no recovery against the city, unless it is the duty of such municipalities to keep their sidewalks clear of ice. In this climate such a thing would be a physical impossibility, and an attempt to do it would involve an amount of expense that would bankrupt any city. . . . An unbroken line of authorities holds that mere slipperiness of a sidewalk by either ice or snow is not a defect for which cities are liable; that their obligation to keep their streets in a safe condition does not extend to the removal of ice which constitutes no other defect than slipperiness.
v. City of
supreme court limited the mere-slipperiness rule in Bufkin v. City of Duluth,
291 N.W.2d 225 (
Doyle is the supreme court’s most recent
case applying the mere-slipperiness rule.
524 N.W.2d at 463. Doyle was
attending a high school hockey game at the Roseville Ice Arena.
Here, the district court concluded that the mere-slipperiness rule did not protect MAC from liability:
As in Bufkin we believe that the scope of the rule is defined by the reason for its existence and that in the circumstances of this case, it is not applicable. Henkes, in establishing the ‘mere slipperiness’ rule explained that this rule is based on the practical consideration that it would be an unsupportable burden to require a city to keep all of its sidewalks free of ice. In this case, the location of the accident is a private parking ramp and therefore the application of the ‘mere slipperiness’ rule would be inconsistent with the policy justifications for the rule’s existence.
(Quotations and citations omitted.) MAC argues that the district court erred by failing to grant it governmental immunity based on the mere-slipperiness rule and erroneously relied on Bufkin in support of its decision.
case before us has elements of both the Doyle
and Bufkin situations. The parking ramp is ancillary to the
operation of an office building at an airport and is furnished for employees
who work in that building. In this
sense, it is related to a business activity, like the
B. Artificial-Condition Exception to the Mere-Slipperiness Rule
Kuehl contends that even if the mere-slipperiness doctrine is applicable, she has generated enough evidence to produce a material-fact issue whether the ice on which she fell was caused by an artificial condition and not mere slipperiness.
artificial-condition exception is recognized in
the caselaw is not easily reconciled. In
its seminal Henkes case, the supreme
court applied the mere-slipperiness rule even though the icy condition was the
result of water that escaped from a fire hose and ran onto the sidewalk one
week before the slip-and-fall incident. Henkes, 42
In Otis v. Anoka-Hennepin Sch. Dist. No. 11, this court held that the mere-slipperiness rule was applicable to a slip-and-fall case, even though the icy condition was caused by the municipality’s shoveling of snow, which then melted and ran onto the sidewalk and formed ice. 611 N.W.2d at 392-93; see also Teske v. Steele County, 170 N.W.2d 234, 235 (Minn. 1969) (“The plowing and piling of snow adjacent to driveways and sidewalks and the use of salt to remove the ice are factors of causation which . . . are entirely speculative and remote.”).
Here, Kuehl argues that the design of the parking lot caused an artificial accumulation of ice near drains on the parking-ramp surface where she fell. Kuehl offered an investigative report from a registered engineer indicating that the parking lot contained a depression between two drains, allowing water to regularly pond in that specific area. This design condition is subtle and passive. It is associated with the initial construction. In a large parking area some minimal ice accumulation is inevitable, even if a surface is sloped to facilitate drainage. The ice did not result from noticeable activity in an area designated for or used by pedestrians. This is not a type of artificial condition that supports an exception to the mere-slipperiness rule.
Because we conclude that MAC is entitled to immunity under the mere-slipperiness rule, we do not reach whether MAC is also entitled to immunity under Minn. Stat. § 466.03, subd. 6 (2006). Because there are no genuine issues of material fact regarding the condition of the parking-ramp surface that affect the application of the mere-slipperiness rule and because the district court failed to apply the rule, we reverse.
Reversed; motion denied.