This opinion will be unpublished and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
C4-96-467


Matthew Preston,
Appellant,

vs.

All American Life Insurance Company,
an Illinois Corporation,
Defendant,

Paul Thomas, et al.,
Respondents.


Filed August 13, 1996
Reversed and Remanded
Schumacher, Judge

Hennepin County District Court
File No. 956010


Jan Stuurmans, Law Offices of Jan Stuurmans, P.A., 1800 Rand 
Tower, 527 Marquette Avenue, Minneapolis, MN 55402 (for 
Appellant)

James A. Beitz, Hagerty, Johnson, Albrightson & Beitz, P.A., 701 
Fourth Avenue South, Suite 1700, Minneapolis, MN 55415 (for 
Appellant)

Thomas E. Peterson, Eric J. Strobel, Peterson & Hektner, Ltd., 
8400 Normandale Lake Boulevard, Suite 1475, Minneapolis, MN 
55437 (for Respondents)




	Considered and decided by Short, Presiding Judge, 
Schumacher, Judge, and Holtan, Judge.*

U N P U B L I S H E D   O P I N I O N

SCHUMACHER, Judge
	Matthew Preston appeals the district court's grant of 
summary judgment in favor of respondents Paul and Shirley 
Thomas, arguing they were negligent per se by failing to mark a 
window as required by statute.  We reverse and remand for trial.

FACTS

	The Thomases owned the Golden Valley Best Western 
Motel.  While attending a wedding reception at the motel, Preston 
was injured when he walked through a side light (a floor-to-ceiling 
window adjacent to a doorway).
	Preston left the reception twice during the evening to smoke 
cigarettes on an outdoor balcony.  In deposition testimony, Preston 
said that on his first trip to the balcony, he noticed the side light 
and had no trouble ascertaining the location of the doorway.  While 
attempting to re-enter the motel after his second trip to the balcony, 
Preston was injured when he walked through the side light 
adjacent to the doorway.  A test at the hospital following the 
incident revealed Preston had a blood-alcohol content of .16.  A 
police officer at the scene, however, stated that "Mr. Preston did 
not appear to be intoxicated."  The police officer also stated that 
"[f]rom the outside it appears as though the window is actually an 
open doorway."  Another wedding guest stated in an affidavit that 
twice during the evening he too "walked into the window, 
mistaking it for an open doorway."
	Preston brought a personal injury action, alleging the 
Thomases were negligent in not warning of a dangerous condition 
and that they failed to mark the side light.  The Thomases moved 
for summary judgment, contending (1) Preston's claims were 
barred by the statute of repose, Minn. Stat.  541.051, subd. 1(a) 
(1994), (2) Minn. Stat.  299G.11 (1994), which requires side 
lights to be marked, does not apply to buildings constructed before 
the statute was enacted, and (3) they had no duty under Minn. Stat. 
 299G.11 to mark the side light because Preston admitted that he 
had observed it earlier.
	The district court rejected the Thomases' first two 
arguments.  The court found, however, that the Thomases were not 
liable because Preston admitted he was aware of the side light, and 
it was not foreseeable that a person who had observed the side light 
would later walk through it.  Preston appeals from the summary 
judgment.

D E C I S I O N

	On appeal from summary judgment, this court asks (1) 
whether there are any genuine issues of material fact and (2) 
whether the district court erred in applying the law.  State by 
Cooper v. French, 460 N.W.2d 2, 4 (1990).  The evidence is to be 
viewed in a light most favorable to the nonmoving party.  
Abdallah, Inc. v. Martin, 242 Minn. 416, 424, 65 N.W.2d 641, 
646 (1954).
	Minn. Stat.  299G.11 (1994) provides:
	If doors or side lights of a public building, whether 
privately or publicly owned, are constructed with clear 
glass, markings shall be placed on such clear glass or the 
clear glass shall be manufactured with markings.  Sidelights 
are defined as the clear glass panels not less than 15 inches 
wide immediately adjacent to the door.
The parties dispute whether the side light was properly marked.  
Because we view the evidence in the light most favorable to 
Preston, we assume that there were no markings.
	The violation of a statute may result in negligence per se.  
Alderman's, Inc. v. Shanks, 536 N.W.2d 4, 7 (Minn. 1995).
It is well settled that breach of a statute gives rise to 
negligence per se if [1] the persons harmed by that violation 
are within the intended protection of the statute and [2] the 
harm suffered is of the type the legislation was intended to 
prevent.  The statute * * * imposes a fixed duty of care, so 
its breach constitutes conclusive evidence of negligence.
Pacific Indem. Co. v. Thompson-Yaeger, Inc., 260 N.W.2d 548, 
558-59 (Minn. 1977) (citations omitted).  As a business invitee, 
Preston fell within the intended protection of the statute.  Thus, 
Minn. Stat.  299G.11 set the Thomases' standard of care and a 
breach of that standard is negligence per se.   "[N]egligence per se 
is not liability per se," and therefore there remain the defenses of 
contributory negligence and proximate cause.  See Seim v. 
Garavalia, 306 N.W.2d 806, 810 (Minn. 1981).
	According to the Restatement:
A possessor of land is not liable to his invitees for physical 
harm caused to them by any activity or condition on the 
land whose danger is known or obvious to them, unless the 
possessor should anticipate the harm despite such 
knowledge or obviousness.
Restatement (Second) of Tort  343A (1965) (emphasis added).  
The district court concluded that there was no evidence the 
Thomases could expect Preston to walk through the side light 
when he earlier had knowledge of it.  In Peterson v. Haule, 304 
Minn. 160, 230 N.W.2d 51 (1975), the supreme court allowed a 
10-year-old girl to recover from a defendant who was violating 
Minn. Stat.  299G.11, despite the fact that she had been at the 
defendant's business "on numerous occasions during the preceding 
2 years."  Id. at 162, 230 N.W.2d at 53.  
	As the Restatement recognizes:
	There are, however, cases in which the possessor of 
land can and should anticipate that the dangerous condition 
will cause physical harm to the invitee notwithstanding its 
known or obvious danger. * * * 

	Such reason to expect harm to the visitor from 
known or obvious dangers may arise, for example, where 
the possessor has reason to expect that the invitee[ ] * * * 
will forget what he has discovered, or fail to protect himself 
against it.
Restatement (Second) of Torts  343A cmt. f.
	This is not a case such as Ramstad v. Lear Siegler 
Diversified Holdings Corp., 836 F. Supp. 1511 (D. Minn. 1993), 
cited by the district court.  In Ramstad, a farmer was injured by a 
grain auger when he put his foot near the auger's intake.  Id. at 
1513.  The court rejected the farmer's claim that although he was 
aware of the danger, a warning reminding him of it would have 
prevented him from acting as he did.  Id. at 1516.  Here, the known 
danger of a grain auger is not the same as the danger of walking 
into a transparent side light that was at one time known.  The 
markings required by Minn. Stat.  299G.11 not only give a one-
time notice that an expanse of glass is not a doorway but provide 
continuous notice of the existence of glass.
	 Illustration 3 to section 343A is analogous to this case:
The A Drug Store has a soda fountain on a platform raised 
six inches above the floor.  The condition is visible and 
quite obvious.  B, a customer, discovers the condition when 
she ascends the platform and sits down on a stool to buy 
some ice cream.  When she has finished, she forgets the 
condition, misses her step, falls, and is injured.  If it is 
found that this could reasonably be anticipated by A, A is 
subject to liability to B.
It is for a jury to decide if a risk fell within a defendant's range of 
foreseeability.  Van Gordon v. Herzog, 410 N.W.2d 405, 408 
(Minn. App. 1987).  Thus, the question of forseeability, even 
though at one time Preston had knowledge of the side light, is for 
the jury.
	Reversed and remanded.

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