This opinion will be unpublished and

may not be cited except as provided by

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








Teresa Johnson,





Home Depot U.S.A., Inc.,

a Delaware corporation,




Filed August 21, 2007


Parker, Judge*



Hennepin County District Court

File No. 27-CV-06-7973



Sharifa Elaraj, Carol Lynn O’Gara, Elaraj O’Gara Attorneys at Law, Ltd., 621 West Lake Street, Suite 350, Minneapolis, MN  55408 (for appellant)


Kathryn R. Downey, Michael S. Ryan, Murnane Brandt, 30 East Seventh Street, Suite 3200, St. Paul, MN  55101 (for respondent)


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

U N P U B L I S H E D   O P I N I O N


            This appeal is from summary judgment granted to respondent on appellant’s negligence action for injuries resulting from a slip-and-fall accident, in which the district court ruled that respondent did not owe appellant a duty of care because the condition of the curb where appellant fell was open and obvious.  We affirm.


            On appeal from summary judgment, this court examines the record to determine whether any genuine issues of material fact exist and whether the district court erred in applying the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  This court must view the evidence in the light most favorable to the party against whom judgment was granted and accepts that party’s factual allegations as true.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  But summary judgment is appropriate as a matter of law when the record is devoid of proof on an essential element of the plaintiff’s claim.  Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995).

            An essential element of a negligence claim is the existence of a duty of care.  Id.  A landowner has a duty to use reasonable care to prevent persons from being injured by conditions on the property that present foreseeable risk of injury.  Hanson v. Christensen, 275 Minn. 204, 212, 145 N.W.2d 868, 874 (1966).  The existence of a legal duty is generally an issue for the court to review as a matter of law.  Louis v. Louis, 636 N.W.2d 314, 318 (Minn. 2001).

            A landowner generally does not owe a duty to an entrant if the danger on the land is known or obvious.  Baber v. Dill, 531 N.W.2d 493, 495-96 (Minn. 1995).  “The rationale underlying this rule is that no one needs notice of what he knows or reasonably may be expected to know.”  Id. at 496 (quotation omitted).  “[T]he word ‘known’ denotes not only knowledge of the existence of the condition or activity itself, but also appreciation of the danger it involves.”  Louis, 636 N.W.2d at 321 (quotation omitted).  A danger is “obvious” if a reasonable person exercising ordinary perception, intelligence, and judgment would recognize the danger.  Id.  “[T]he test for what constitutes an ‘obvious’ danger is an objective test: the question is not whether the injured party actually saw the danger, but whether it was in fact visible.”  Id. (quotation omitted).

            Teresa Johnson went to the Bloomington Home Depot store with her sister-in-law and her niece, Barb and Grace Lynch, to buy paint and three bags of mulch.  When Johnson paid for her items, the cashier told her that the garden area where the mulch was located was self-service and that she should pick up the mulch herself.  The individual bags of mulch were too big and heavy for Johnson to carry, so she decided to drag each bag across the sidewalk to where Barb Lynch had driven their minivan for loading.  Johnson removed the first two bags of mulch from a pallet and passed them on to Grace and Barb Lynch.  Johnson dragged the third bag of mulch across the sidewalk to the minivan herself.  As Johnson approached the curb, she was walking either sideways or backwards, dragging the bag of mulch.  As Johnson stepped onto the curb, she slipped and fell, breaking her ankle.

            It was dark outside when the accident happened.  Johnson testified as follows about lighting and the visibility of the curb:

            Q         . . . [D]o you remember, was there any lighting out in the area where the mulch and pallets were?

            A         All I can say is I bet there was.

            Q         Do you remember not being able to see because it was dark out? . . .

            A         We could see . . . the bags of mulch.  We were able to locate that.  We were able to locate which pallet had the cocoa beans [the type of mulch Johnson bought] on it.

            Q         But you weren’t able to see the curb because it was dark, is that what you’re saying?

            A         I probably saw the curb, but I didn’t take notice of it.  I mean, my guess is that since I’m looking all around, I’m able to see everything.

            Q         Okay.  So even though it was dark out, it wasn’t as though it was so dark that you couldn’t see the curb, is that right?

            A         That’s right.

            Q         And tell me about what happened . . . .  So it wasn’t so dark that you couldn’t see the curb.  Would you say that the curb was clearly visible from where you were standing?

            A         Yes, I knew where the curb was.  Let’s put it that way.  I knew there was a curb there.

            Q         It was in plain view of where you were standing, is that right?

            A         Yeah, I guess – yes.


Johnson also testified that if she had looked at the curb, she would have seen its crumbled condition and avoided that area.

            Johnson’s own testimony establishes that the lighting in the sidewalk area was sufficient to make the curb’s condition visible; her view of the curb was unobstructed; and if she had looked at the curb, she would have seen its crumbled condition and avoided that area.  From Johnson’s own testimony, the district court properly concluded that the curb’s condition was open and obvious, and, therefore, no duty of care arose.  See Lawrence v. Hollerich, 394 N.W.2d 853, 856 (Minn. App. 1986) (holding that landowner owed no duty to warn of steepness of slope because it was obvious), review denied (Minn. Dec. 17, 1986).

            An exception to the general obvious-danger rule is that a landowner is not relieved of a duty if it should anticipate the harm despite the entrant’s knowledge or the obviousness of the danger.  Baber, 531 N.W.2d at 496.  Johnson argues that Home Depot should have anticipated harm resulting from the curb’s condition.  We disagree.  There was uncontradicted testimony by a Home Depot assistant manager that there had been no other accidents due to the curb’s condition and no problems with inadequate lighting in the area, and there was no evidence of any complaints about the curb.  Johnson argues that her attention was distracted by the process of transporting and loading the bags of mulch into the minivan.  But Johnson chose to drag the bags of mulch rather than using a cart to transport them.  Contrary to Johnson’s statement in her affidavit that there were no carts nearby, she testified in her deposition that she had had a cart and chose not to use it to load the mulch.

            The cases relied on by Johnson to argue that Home Depot should have anticipated harm are distinguishable in that they involve distractions caused by product displays designed to attract customers’ attention or injuries occurring due to faulty construction of a display.  See, e.g., Harris v. Campbell Cereal Co., 243 Minn. 308, 67 N.W.2d 824 (1954) (display located near open stairway); Duffy v. Stratton, 169 Minn. 136, 210 N.W. 866 (1926) (customer attempted to grab merchandise hanging over a staircase); Ober v. Golden Rule, 146 Minn. 347, 178 N.W. 586 (1920) (customer tripped over foot of display stand).

            The district court properly granted summary judgment for Home Depot.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.