This opinion will be unpublished and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

C4-96-1148

Deke A. Fischer,

Respondent,

vs.

City of St. Cloud,

Appellant.

Filed October 29, 1996

Reversed

Schumacher, Judge

Stearns County District Court

File No. C8952748

Robert J. Feigh, Hall & Byers, P.A., 1010 West St. Germain, Suite 600, St. Cloud, MN 56301 (for Respondent)

Michael T. Milligan, Dyan J. Ebert, Quinlivan, Sherwood, Spellacy & Tarvestad, P.A., 600 Norwest Center, Box 1008, St. Cloud, MN 56302 (for Appellant)

Considered and decided by Schumacher, Presiding Judge, Toussaint, Chief Judge, and Thoreen, Judge.[*]

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

SCHUMACHER, Judge

Appellant City of St. Cloud contends the district court erred in denying the city statutory immunity. We reverse.

FACTS

Respondent Deke A. Fischer was injured while bicycling on property purchased by the city from Burlington Northern Railroad. Burlington Northern had removed the railroad track and ties from the land prior to the purchase. Truckloads of dirt were dumped on the property, creating five-foot "berms" or mounds that prevented all-terrain vehicles from driving on the abandoned track.

The city planned to develop the property into the Beaver Island Trail, a recreational area for biking and hiking. The city received a $110,000 matching grant from the Department of Trade & Economic Development for the Beaver Island Park project. As part of this project, the Department of Natural Resources built a fishing pier in the fall of 1992. By November 1993, concrete work on the park project was completed and the park and recreation board expected to have all electrical and telephone work completed that fall, with landscaping completed the following spring. In April 1994, the director of the park and recreation board reported that the trail "has been active for many years" and was "being used extensively at this time, so hopefully this development will help control its use."

Fischer had ridden his bike over the mounds approximately four times before the accident. On his last pass he attempted to cross the mound, but the front wheel of his bicycle tipped forward at the top of the mound and he fell over his handlebars to the ground, sustaining personal injuries. Fischer states he was unable to determine what exactly caused his accident. There was evidence indicating other persons had accidents on these berms.

Fischer brought this action against the city to recover damages for his injuries, claiming that the city knew of the dangerous condition of the property, yet failed to warn bicyclists of the danger. The city moved for summary judgment, claiming three forms of statutory immunity.[1] The district court denied the city's motion, concluding that genuine issues of material fact exist over the cause of Fischer's accident and the city's claim to immunity.

D E C I S I O N

On appeal from summary judgment, this court must determine whether any genuine issues of material fact exist and whether the district court erred in its application of the law. Wartnick v. Moss & Barnett, 490 N.W.2d 108, 112 (Minn. 1992). We must construe all factual inferences and conclusions in favor of the party opposing summary judgment. Grondahl v. Bulluck, 318 N.W.2d 240, 242 (Minn. 1982).

The city contends the district court erred in denying it immunity from suit. We agree. Minnesota law provides a municipality immunity from:

Any claim based upon the construction, operation, or maintenance of any property owned or leased by the municipality that is intended or permitted to be used as a park, as an open area for recreational purposes, or for the provision of recreational services, or from any claim based on the clearing of land, removal of refuse, and creation of trails or paths without artificial surfaces, if the claim arises from a loss incurred by a user of park and recreation property or services. Nothing in this subdivision limits the liability of a municipality for conduct that would entitle a trespasser to damages against a private person.

Minn. Stat. § 466.03, subd. 6e (1994). The property here clearly falls under the definition of a park and recreation area, given the city's plans and steps toward creating this former railroad bed into a trail for hiking, biking, and general recreation. Consequently, we conclude that under section 466.03, subd. 6e the city is immune from liability unless its conduct "would entitle a trespasser to damages against a private person." Id. The duty a possessor of land owes a trespasser is set forth in Restatement (Second) of Torts § 335 (1965).

A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area of the land, is subject to liability for bodily harm caused to them by an artificial condition on the land, if

(a) the condition

(i) is one which the possessor has created or maintains and

(ii) is, to his knowledge, likely to cause death or serious[] bodily harm to such trespassers and

(iii) is of such a nature that he has reason to believe that such trespassers will not discover it, and

(b) the possessor has failed to exercise reasonable care to warn such trespassers of the condition and the risk involved.

Id., quoted in Johnson v. Washington County, 518 N.W.2d 594, 599 (Minn. 1994). The city may be liable under this standard "only for failing to exercise reasonable care to warn trespassers about hidden, artificial dangers created or maintained by the landowner." Sirek by Beaumaster v. State, Dep't of Natural Resources, 496 N.W.2d 807, 810 (Minn. 1993).

For purposes of this appeal, the city concedes that it was aware of trespassers on this property and that the mounds of dirt were artificial conditions. See Reider v. City of Spring Lake Park, 480 N.W.2d 662, 667 (Minn. App. 1992) (holding that man-made berm is artificial condition on land), review denied (Minn. Apr. 13, 1992).

Fischer has failed to present any probative evidence indicating this mound was dangerous and likely to cause serious harm. On the contrary, the record shows the mound was merely a large pile of dirt with no extraordinary characteristics. The evidence of other accidents that Fischer presented does not raise the issue of a dangerous condition.

Furthermore, Fischer has not shown that the mound was hidden or presented an unknown danger. Fischer had driven over the mound four times before the day of the accident. On the day of the accident, he had driven over the mound once and had taken the opportunity to inspect it and alter his route over it to avoid a trench on one side. The record shows that Fischer was well aware of the nature of the mound.

Fischer needs to establish all of the Restatement requirements in order to hold the city liable. Johnson v. State, 478 N.W.2d 769, 772 (Minn. App. 1991), review denied (Minn. Feb. 27, 1992). Fischer did not raise material fact issues over the city's knowledge of a dangerous condition or the existence of an unknown hazard. Consequently, the city is entitled to statutory immunity under Minn. Stat. § 466.03, subd. 6e. The district court erred in denying the city immunity from suit.

Reversed.

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

[ ]1 In using immunity terminology here, we are mindful of the supreme court's recent mandate to clarify cases by referring simply to "statutory immunity" or "official immunity." Janklow v. Minnesota Bd. of Examiners for Nursing Home Adm'rs, 552 N.W.2d 711, 716 (Minn. 1996) (involving state immunity); see also Zank v. Larson, 552 N.W.2d 719, 721 (Minn. 1996) (referring to municipal immunity under Minn. Stat. § 466.03 (1994) as "statutory immunity").