This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






Janet Peoples,


Buffets, Inc. d/b/a Old Country Buffet,


Filed August 14, 2007


Peterson, Judge


Hennepin County District Court

File No. 27-CV-05-010213


Larry E. Reed, Law Offices of Larry E. Reed, 2000 Plymouth Avenue North, Minneapolis, MN  55411 (for appellant)


Laura L. Daly, David A. Donna, Donna and Daly, P.C., Suite 150, 1460 Buffet Way, Eagan, MNN  55121 (for respondent)


            Considered and decided by Shumaker, Presiding Judge; Peterson, Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N


            In this appeal from summary judgment in a slip-and-fall case, appellant argues that (1) factual issues precluded summary judgment; and (2) promissory estoppel applies to her claim for payment of medical bills.  We affirm.


            While dining at an Old Country Buffet restaurant operated by respondent Buffet’s Inc., appellant Janet Peoples walked to the buffet to get her food and then walked back to the booth where she was seated.  The floor around the restaurant’s buffet was tiled, and the floor around the seating area was carpeted.  Peoples went back to the buffet for dessert.  While returning to the seating area, Peoples slipped on the tile floor and fell on her left knee.  Peoples believes that she slipped on cooked carrots because after she fell, she looked at the bottom of her shoe and saw smashed cooked carrots smeared on her shoe.  After the fall, Peoples was not able to get up.  Peoples’ deposition testimony indicated that a female customer and the restaurant manager, Gregory Tjosvold, helped her into a chair. 

            Tjosvold stated during his deposition that he had walked through and inspected the restaurant five minutes before Peoples slipped, and he did not see any food on the tile floor.  Tjosvold also stated that when he was summoned to where Peoples slipped and fell, he noticed that there was an “obvious hazard” of food on the carpet around a table where a young child had been sitting. 

            Tjosvold offered to take Peoples to a medical clinic located upstairs from the restaurant.  Tjosvold had been a patient at the clinic, and he knew that a wheelchair was available at the door.  He retrieved the wheelchair and helped Peoples to the clinic.  Tjosvold stated that he told the clinic that Peoples fell in his restaurant, but he did not intend that statement to mean that the clinic should bill him for her medical expenses. 

            Peoples brought an action against respondent for the injuries caused by her fall.  Respondent moved for summary judgment, and the district court granted the motion.  This appeal follows.


            In an appeal from summary judgment, this court will examine whether there are genuine issues of material fact and whether the district court erred as a matter of law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  This court views the evidence in the light most favorable to the party against whom judgment was granted and accepts as true the factual allegations of that party.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  Summary judgment is appropriate when a party fails to make a showing sufficient to establish the existence of an element essential to the party’s case.  Bersch v. Rgnonti & Assocs., Inc., 584 N.W.2d 783, 786 (Minn. App. 1998), review denied (Minn. Dec. 15, 1998); see also Schroeder v. St. Louis County, 708 N.W.2d 497, 507 (Minn. 2006) (emphasizing that standard is a showing of “sufficient evidence”).

(1)       Negligence claim

            Peoples argues that the district court (1) failed to acknowledge that respondent had a duty to inspect the premises; and (2) did not address her argument that Tjosvold had seen a dangerous condition on the floor in the area where she fell, but he took no steps to remedy the condition or to determine the extent of the hazard.

            To establish a prima facie negligence claim, Peoples must show: (1) the existence of a duty of care, (2) a breach of that duty, (3) an injury, and (4) that the breach of the duty is the proximate cause of the injury.  Louis v. Louis, 636 N.W.2d 314, 318 (Minn. 2001).  A property owner has a duty to use reasonable care to prevent persons from being injured by conditions on the property that present a foreseeable risk of injury.  Hanson v. Christensen, 275 Minn. 204, 212, 145 N.W.2d 868, 873-74 (1966).  “Reasonable care includes the duty to inspect and repair the premises and, at a minimum, to warn persons using the premises of unreasonable risks of harm.”  Sullivan v. Farmers & Merchants State Bank of New Ulm, 398 N.W.2d 592, 594-95 (Minn. App. 1986), review denied (Minn. Mar. 13, 1987). 

            “Unless the dangerous condition actually resulted from the direct actions of a landowner or his or her employees, a negligence theory of recovery is appropriate only where the landowner had actual or constructive knowledge of the dangerous condition.” Rinn v. Minn. State Agric. Soc’y, 611 N.W.2d 361, 365 (Minn. App. 2000).  To prevail on a negligence claim, the plaintiff has “the burden of proving either that defendant caused the dangerous condition or that it knew, or should have known, that the condition existed.”  Messner v. Red Owl Stores, 238 Minn. 411, 415, 57 N.W.2d 659, 662 (1953).  “[S]peculation as to who caused the dangerous condition, or how long it existed, warrants judgment for the landowner.”  Rinn, 611 N.W.2d at 365; see also Messner, 238 Minn. at 413, 57 N.W.2d at 661 (concluding that faulting defendant’s employees for dropping banana peels on floor of grocery store “would be too speculative and conjectural to be sustained”).

            The district court determined that Peoples did not produce evidence that would permit a fact-finder to conclude that respondent’s employee created a hazard or that respondent had actual or constructive knowledge of the carrots on the floor.  Citing Tjosvold’s deposition testimony, Peoples contends that Tjosvold saw the “obvious hazard” and did nothing about it.  Tjosvold testified as follows:

Q:        . . . [W]hen you came to her location, did you do anything else while you were there . . .?

A:        Yes.

Q:        What?

A:        Well, I looked around the area.

Q:        For what?

A:        To see if there was something that was an obvious hazard.

Q:        Did you see anything that was an obvious hazard?

A:        In a general sense, yes.

Q:        What?

A:        There had been a table with a child at it in a highchair.  So it’s a young child.  And as those folks were leaving, there was food on the floor on the carpeting.

Q:        Did you know whether or not there was food any other place, other than the carpeting?

A:        I don’t believe that there was.    

. . . .

Q:        You don’t know, as you sit here now, the last time that that area had been inspected prior to Ms. Peoples indicating that she had fallen; correct?

. . . .

A:        I can tell you that I walked through that area, inspected it within five minutes of that incident.

. . . .

Q:        So as you sit here today, you don’t remember what she said, but you remember five minutes before she fell that you inspected the area?

A:        I remember within five minutes that I had been through that as part of working, yes, I inspect it as I go through.

Q:        What does your inspection involve?

A:        Looking at floors, looking at tables, counters.  That’s just part of working my restaurant. 


            Peoples argues that this testimony indicates that respondent had actual knowledge of debris on the floor and was negligent in failing to clean it up.  But this argument is not supported by Tjosvold’s testimony.  Tjosvold stated that when he walked through the area where Peoples fell approximately five minutes before she fell, he did not see any food on the floor, and when he was summoned to assist Peoples after she fell, he saw food on the carpet.  Peoples testified that she fell on the tiled portion of the floor, and she did not present evidence that showed any connection between the food that Tjosvold saw on the carpet after she fell and any food on the tile before she fell. 

            The district court expressly addressed respondent’s duty to keep and maintain its restaurant in a reasonably safe condition and determined that as a matter of law, five minutes between the last inspection and Peoples’ fall failed to establish constructive notice.  We agree.  See Otis v. First Nat’l Bank of Minneapolis, 292 Minn. 497, 497-98, 195 N.W.2d 432, 433 (1972) (holding that plaintiff failed to show that the defendant had actual or constructive notice of a puddle of water that had accumulated on a bank floor on a rainy day, 20 minutes after the bank opened); Saari v. S.S. Kresge Co., 257 Minn. 290, 292-93, 101 N.W.2d 427, 429-30 (Minn. 1960) (holding that plaintiff failed to show that the defendant had constructive notice of gum on a stair where there was evidence that defendant had been diligent in keeping the premises clean and the source of the gum and the length of time that the gum remained on the stair were not determined); Rinn, 611 N.W.2d at 365 (holding that 30 minutes was not sufficient time to give respondents constructive notice of the late-night puddle). 

2)         Promissory-estoppel Claim

            Peoples argues that the district court incorrectly included an analysis of consideration when addressing her promissory-estoppel claim.  But the district court did not analyze consideration when addressing the promissory-estoppel claim; it analyzed consideration when addressing Peoples’ contract claim, and on appeal, Peoples does not challenge the district court’s ruling on her contract claim.

            The doctrine of promissory estoppel implies “a contract in law where none exists in fact.”  Grouse v. Group Health Plan, Inc., 306 N.W.2d 114, 116 (Minn. 1981).  The elements of a promissory-estoppel claim are (1) a clear and definite promise, (2) intended to induce reliance and the promisee relied to his or her detriment, and (3) the promise must be enforced to prevent injustice.  Cohen v. Cowles Media Co., 479 N.W.2d 387, 391 (Minn. 1992), remanded on reh’g, 481 N.W.2d 840 (Minn. 1992) (costs issue remanded).

            The district court determined, “Peoples is not claiming [that] she sought medical care that she did not need, so she has suffered no detriment.  Since she has suffered no detriment, she can not claim recovery under promissory estoppel.”  Peoples argues that this statement defies explanation because the medical treatment that she sought was necessary due to the fall in respondent’s restaurant.

            But to establish her promissory-estoppel claim, it is not sufficient for Peoples to show that she needed the medical treatment because she fell in respondent’s restaurant; she must show that she sought the treatment in reliance on Tjosvold’s promise to pay for the treatment.  Although Peoples’ payment for medical treatment is a detriment, she has not shown that it is a detriment that she incurred because Tjosvold’s promised to pay for the treatment.  Peoples does not cite any evidence that she sought treatment at the clinic in reliance on Tjosvold’s promise to pay for the treatment, rather than because she was injured and needed medical treatment, or that she sought treatment at the clinic, instead of obtaining treatment somewhere else, because Tjosvold promised to pay for treatment at the clinic.  Because Peoples did not present evidence sufficient to show that she incurred the detriment of paying for the treatment because Tjosvold promise to pay for the treatment, summary judgment on her promissory estoppel claim is appropriate.