This opinion will be unpublished and
                  may not be cited except as provided by
               Minn. Stat. § 480A.08, subd. 3 (1994).

                          State of Minnesota
                            in Court of Appeals
                        C1-95-2277, C6-95-2288

     Vernon Brandenburg, et al.,
     Appellants (C1-95-2277),

Respondents (C6-95-2288),

Minnehaha Warehouse Liquors,
     Respondent (C1-95-2277),

John Deere Insurance Company et al., intervenors,
     Appellants (C6-95-2288).
     Filed May 14, 1996
Peterson, Judge

Hennepin County District Court

File No. 952440

Stewart R. Perry, Shane C. Perry, Perry, Perry & Perry, 402 Towle Building,
330 South Fourth Street, Minneapolis, MN 55402 (for Appellants C1-95-2277;
Respondents C6-95-2288)

Mark M. Nolan, Stapleton, Nolan & McCall P.A., 2300 American Bank Building,
St. Paul, MN 55101 (for Respondent C1-95-2277)

Kenneth P. Gleason, Mahoney, Dougherty & Mahoney, P.A., 801 Park Avenue,
Minneapolis, MN 55404-1189 (for Appellants C6-95-2288)

Considered and decided by Harten, Presiding Judge, Huspeni, Judge, and
Peterson, Judge.

                        Unpublished Opinion

PETERSON, Judge (Hon. Daniel H. Mabley, District Court Trial Judge)

Appellants Vernon and Louise Brandenburg and intervenor-appellants, John
Deere Insurance Company and Victor C. Osfar d/b/a Energy Efficient
Exteriors, challenge the district court's grant of summary judgment in
favor of respondent Minnehaha Warehouse Liquors. We affirm.

Respondent Minnehaha Warehouse Liquors operates a retail liquor store,
which is located on a block in Minneapolis that includes other businesses
and a parking lot for Minnehaha's customers. The driveway to the parking
lot crosses a city sidewalk. Appellant Vernon Brandenburg was injured when
he slipped and fell on the sidewalk at the point where it is crossed by the
driveway. Brandenburg testified that on the date of the accident there was
patchy ice on the sidewalk. He said that the driveway was rutted because of
water and ice build-up caused by motor vehicles using the driveway.

The managers of Minnehaha testified that they were not aware of the
condition of the area where Brandenburg fell. Witnesses testified that
Minnehaha's parking lot was not used only by Minnehaha's customers for
parking. Drivers who were not customers also drove through the parking lot
as a shortcut.

The district court granted Minnehaha's motion for summary judgment, finding
(1) Minnehaha owed no duty of care to Brandenburg; (2) civil liability
could not be imposed based on Minneapolis, Minn., Code of Ordinances §
445.40 (1991); and (3) there was no evidence to show an extraordinary use
of the driveway or a voluntary undertaking by Minnehaha to maintain the

On appeal from a summary judgment, we ask whether any genuine issues of
material fact exist and whether the district court erred in its application
of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).

1. It has long been the law in Minnesota that
        the duty of keeping a sidewalk in a reasonably safe
        condition for travel is upon the city or
        municipality and not on the abutting owners or
        occupants, and the abutting owner or occupant is not
        liable for any defect therein unless created by him
        or his agents or servants. In other words, the duty
        of keeping a sidewalk in a reasonably safe condition
        for travel is placed on the city and is not on
        abutting owners or occupants unless they created the
        defect or dangerous condition or were negligent in
        maintaining in a dangerous and defective condition
        facilities erected on the sidewalk for their
        convenience or for the benefit of their building.
        Persons who own or occupy property abutting on a
        sidewalk are not liable to pedestrians for injuries
        sustained in consequence of stumbling or slipping on
        ridges or hummocks of snow and ice which form from
        natural causes on the sidewalk.

Sternitzke v. Donahue's Jewelers, 249 Minn. 514, 519-20, 83 N.W.2d
96, 100 (1957).
        [T]hese principles of liability are not changed by
        the fact that the affected portion of the sidewalk

        is crossed by a driveway which is used by customers
        of an abutting occupant.

Graalum v. Radisson Ramp, Inc. 245 Minn. 54, 60, 71 N.W.2d 904, 908

Before 1986, cities were granted immunity under Minn. Stat. § 466.03,
subd. 4 (1984) for ``[a]ny claim based on snow or ice conditions on any
highway or other public place.'' In 1986, Minn. Stat. § 466.03, subd. 4
was amended to extend municipal immunity to
        [a]ny claim based on snow or ice conditions on any
        highway or public sidewalk that does not abut a
        publicly-owned building or publicly-owned parking
        lot * * *.

1986 Minn. Laws ch. 455, § 65.

Appellants argue that because the city is now immune from liability for
claims based on snow or ice conditions on sidewalks, the abutting
landowners can no longer be protected from liability. Citing Sternitzke,
appellants contend that the rationale for not imposing a duty on
abutting landowners to maintain sidewalks was that to do so would be an
improper delegation of the city's duty. Now that the city no longer has
that duty, appellants conclude, there cannot be an improper delegation of
the duty, and the landowner's defense, which was dependent on the city's
responsibility, has disappeared.

Appellant's reliance on Sternitzke is misplaced. Sternitzke
did not hold that an abutting landowner has no duty to maintain a city
sidewalk because the city cannot delegate its duty; Sternitzke
simply recognized the long-existing common law rule that an abutting
landowner has no duty and held that a city ordinance that required a
business owner to clear ice and snow from the public sidewalk did not
create a duty owed to individual pedestrians. 249 Minn. at 519-20, 522, 83
N.W.2d at 100, 101.

Because the common law rule that an abutting landowner owes no duty to
sidewalk users is not dependent on the existence of municipal liability, we
are not persuaded that granting cities immunity for claims based on snow or
ice conditions on sidewalks automatically imposed on abutting landowners a
duty that did not previously exist.

2. Appellants argue that continuing the rule protecting abutting landowners
from liability unconstitutionally denies injured persons redress for their

Minnesota Constitution article I, section 8 provides that ``[e]very person
is entitled to a certain remedy in the laws for all injuries or wrongs * *
*.'' The Minnesota Supreme Court has explained that
        [a]rticle I, section 8 of the Minnesota Constitution
        only assures remedies for rights that vested at
        common law. The purpose of the section is to protect
        common law rights and remedies for which the
        legislature has not provided a reasonable

Hickman v. Group Health Plan, Inc., 396 N.W.2d 10, 14 (Minn. 1986).

As was explained above, under the common law in Minnesota the city, not
abutting landowners, has the duty to keep sidewalks in a reasonably safe
condition for travel. Sternitzke, 299 Minn. at 519-20, 83 N.W.2d at
100. There is no common law right to sue an abutting property owner for
injuries caused by slipping and falling on a city sidewalk. Id., 83

N.W.2d at 100. Therefore, appellants have not been deprived of a common law
right to sue Minnehaha.

3. Appellants argue the district court erred in concluding that liability
cannot be imposed on Minnehaha based on Minneapolis, Minn., Code of
Ordinances § 445.40 (1991). Intervenor-appellants contend liability
also could be imposed based on Minneapolis, Minn., Code of Ordinances §
319.260 (1991). Both ordinances require business owners to keep their
driveways free from ice and snow. Id.; Minneapolis, Minn., Code of
Ordinances § 445.40.

Because it was not argued in the district court that liability should be
based on Minneapolis, Minn., Code of Ordinances § 319.260, we will not
address that issue. See Waldner v. Peterson, 447 N.W.2d 217, 219
(Minn. App. 1989) (review limited to those issues that were raised in and
decided by district court).

In Sternitzke, the plaintiffs argued that the abutting property
owner should be liable because it failed to clear ice and snow from the
sidewalk in violation of a city ordinance. 249 Minn. at 522, 83 N.W.2d at
101. The court rejected this argument stating:
        The violation of an ordinance of the sort plaintiffs
        refer to in their complaints does not establish
        liability of the violator to one injured thereby but
        only to the municipality alone.

Id., 83 N.W.2d at 101; see also Rudd v. Lyceum Dramatic Prods.,
Inc., 250 Minn. 328, 331 n.5, 85 N.W.2d 61, at 63 n.5 (1957) (``even
where there is a snow-removal law the abutting landowner is not civilly
liable to third persons for violations thereof''). Accordingly, liability
cannot be premised on Minneapolis, Minn., Code of Ordinances § 445.40.

4. Appellants contend that summary judgment was improper because there is a
fact question whether Minnehaha's use of the sidewalk is an extraordinary
use. In Graalum, the supreme court created an exception to the
general rule that abutting landowners are not liable for failing to keep
the sidewalk free from ice and snow. 245 Minn. at 60, 71 N.W.2d at 908.
        [W]here an abutting owner or occupant makes an
        extraordinary use of a sidewalk for his own
        convenience, he owes a duty to the public to
        exercise due care in seeing that the affected
        portion of the sidewalk is maintained in a safe
        condition for the passage of pedestrians.

Id., 71 N.W.2d at 908.

An extraordinary use may
        arise from acts which, though intrinsically
        consistent with the usual function of a sidewalk or
        driveway when conducted in a normal manner and
        context, lose their customary status because they
        are performed in such unusual volume and under such
        conditions that they unduly interfere with a safe
        and normal use of the affected portion of the
        sidewalk. Vehicular travel over a sidewalk to an
        abutting occupant's place of business may,
        periodically or otherwise, become so heavy that a
        sidewalk ceases to perform its normal function as a
        reasonably safe route for pedestrian travel.

Id. at 61, 71 N.W.2d at 909.

In Graalum, the evidence showed approximately 4,000 pedestrians used
the sidewalk each hour during rush hour traffic, and 570 cars crossed the
sidewalk each way during work hours on the day of the accident. Id.
at 61-62, 71 N.W.2d at 909.

The only evidence appellants presented regarding the number of cars that
crossed the sidewalk each day was Minnehaha's general manager's testimony
that it was ``[a] considerable number.'' This evidence is insufficient to
create a fact question whether Minnehaha's use of the property was
extraordinary. See Moundsview Indep. Sch. Dist. No. 621 v. Buetow &
Assocs., Inc., 253 N.W.2d 836, 838 (Minn. 1977) (nonmoving party must
demonstrate at time summary judgment motion is made that specific facts
exist that create genuine issue for trial and cannot rely on general
statements of fact to oppose motion).