This opinion will be unpublished and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

C4-96-792

Dean Hooker,

Respondent,

vs.

State of Minnesota, Department of

Natural Resources,

Appellant,

Kenneth Steinmetz Construction,

Respondent,

and

State of Minnesota, Department of

Natural Resources, defendant and third-party plaintiff,

Appellant,

vs.

Rodney Hooker, third-party defendant,

Respondent.

Becker County District Court

File No. CX-95-340

Filed November 26, 1996

Affirmed

Amundson, Judge

Jana Austad, 514 America Avenue, P.O. Box 880, Bemidji, MN 56619-0880 (for respondent Dean Hooker)

Michelle Donarski, P.O. Box 9, Moorhead, MN 56561 (for respondent Steinmetz Construction)

William F. Jones, 101 West Second Street, P.O. Box 48, Park Rapids, MN 56470 (for respondent Rodney Hooker)

Hubert H. Humphrey, III, Attorney General, Portia Hampton-Flowers, Assistant Attorney General, 1100 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for appellant State of Minnesota)

Considered and decided by Huspeni, Presiding Judge, Amundson, Judge, and Thoreen, Judge.[*]

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

AMUNDSON, Judge

Appellant State of Minnesota, Department of Natural Resources, challenges the trial court's denial of summary judgment based on governmental immunity from liability pursuant to Minn. Stat. § 3.736, subd. 3(h) (1994) of the Tort Claims Act. We affirm.

FACTS

Respondent Rodney Hooker, who owns a logging business, subcontracts work to his brother, respondent Dean Hooker, who owns a timber-hauling business. In the fall of 1993, Rodney purchased a timber sale permit from the Department of Natural Resources (the DNR). The logging site was west of Little Scenic Forest Road (Little Scenic), which is located in the White Earth State Forest. The DNR informed Rodney that Little Scenic was under construction. Rodney hired Dean to haul the timber harvested from the logging site near Little Scenic, but failed to inform him that Little Scenic was under construction. The previous spring, the DNR contracted with Kenneth Steinmetz to reconstruct Little Scenic. The project required Little Scenic to be regraveled. Steinmetz barricaded the road and erected signs warning of the construction. The signs were later removed by travelers on the road and were not replaced.

When construction began, State Forester Jack Bugge alleges that he informed Steinmetz that the road was to remain passable at all times for two-wheel drive vehicles and any gravel left on the road was to be bladed (smoothed out) on the weekend. Steinmetz claims that he was not told to blade on the weekend, as that was not part of his contract.

In mid-October 1993, Rodney began hauling timber from his logging site by traveling on Little Scenic. On or about October 20, 1993, Rodney noticed that the gravel work was getting closer to his site. Due to the gravel, Little Scenic had become impassable for his semi-trucks. Rodney contacted Bugge regarding the problem. Bugge arrived at the site and informed Rodney that the problem would be taken care of over the weekend.

On Monday, October 25, 1993, Dean left his home at approximately 5:45 a.m. to begin hauling timber from Rodney's logging site. Dean had not spoken with Rodney on that morning, but he had been to the site two weeks earlier and knew the work had to be completed. When Dean was at the site two weeks earlier, there had been no gravel or construction in the area. Rodney did not tell Dean about the construction because he thought it was "common knowledge" among people in the area that the road was under construction.

Dean traveled down Little Scenic in his semi-truck at approximately 20 to 30 miles per hour. It was dark and he had on his bright lights. Dean did not see any evidence of construction or warning signs. As he rounded a corner on Little Scenic, he saw a distortion in the road. He then hit the distortion, a gravel pile approximately 18-24 inches high, located in the middle of the road. Dean veered off the road and suffered many injuries, including a broken back. Dean drove his truck back on the road and continued to Rodney's logging site.

On that same day, Rodney and another hauler, Curt DeMaris, also arrived at the logging site in semi-trucks. Both testified that they had to swerve to avoid hitting the gravel pile but arrived at the logging site without incident. Rodney and DeMaris had traveled Little Scenic before while it was under construction and knew that gravel piles were randomly located on the road.

Dean filed suit against the DNR and Steinmetz in November 1994, claiming that (1) Steinmetz had negligently left the pile of gravel on Little Scenic, (2) the DNR had knowledge of the dangerous condition, and (3) the DNR failed to remedy the condition or warn him.

The DNR responded with a motion to dismiss pursuant to Minn. Stat. § 3.736, subd. 3(h) (1994), the Tort Claims Act (the Act), which limits state liability for injuries arising in connection with the operation of the outdoor recreation system. The trial court, stating the pleadings did not provide sufficient evidence to warrant dismissal, denied the motion.

The DNR moved for summary judgment and the trial court denied the motion. This appeal followed.

D E C I S I O N

On an appeal from summary judgment, this court must ask two questions: (1) whether there are any genuine issues of material fact, and (2) whether the lower court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).

DNR and its employees are not liable for:

[A] loss incurred by a user arising from the construction, operation, or maintenance of the outdoor recreation system, as defined in section 86A.04, * * * except that the state is liable for conduct that would entitle a trespasser to damages against a private person.

Minn. Stat. § 3.736, subd. 3(h) (1994).

When the immunity provision of the statute applies, the state is immune from liability unless its conduct falls within the exception of the statute. Cobb v. State, 441 N.W.2d 839, 841 (Minn. App. 1989). The statute exposes the state to liability if it fails to act commensurate with the duty imposed under the law of trespass as defined in the Restatement (Second) of Torts. Id. The Restatement outlines the factors which must be present for a private landowner to be liable to a trespasser:

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 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.

Restatement (Second) of Torts § 335 (1965).

Each of the requirements in the Restatement must be met before liability will attach. In this case, the DNR does not dispute that White Earth State Forest and Little Scenic are part of the "outdoor recreation system" and thus are within the DNR's jurisdiction. See Minn. Stat. § 86A.04 (1994). Nor does the DNR dispute that the gravel pile was an artificial condition that it maintained.

The trial court held that genuine issues of material fact exist as to whether (1) the gravel pile was a concealed condition, (2) the condition was likely to cause death or serious bodily injury, and (3) the DNR exercised reasonable care to warn of the condition. We agree.

I. Concealed Condition

The DNR argues that the gravel pile, while an artificial condition, was not a hidden condition or concealed danger. Under Section 335, a landowner does not have a duty to eliminate artificial conditions from the land but merely must exercise reasonable care to warn. Restatement (Second) of Torts § 335(b) (1965). Additionally, a claimant must establish that the artificial condition on the land is of such a nature that the landowner believes the trespassers will not discover it. Id. at § 335 (a) (iii). Generally, whether an artificial condition is hidden depends on whether the condition was visible, not whether the injured party actually saw the danger. Steinke v. City of Andover, 525 N.W.2d 173, 177 (Minn. 1994).

Loggers testified that they were forced to swerve to avoid gravel piles placed on Little Scenic by Steinmetz. The gravel, at times, was not visible because Little Scenic is a winding road. Dean Hooker testified that the morning of his accident was the first time he had any knowledge that the road was under construction. The gravel on Little Scenic was an artificial condition. It may also have been concealed, because the gravel was, at times, not visible, and the DNR had not informed Dean of the construction, nor had he traveled on the part of the road under construction since the construction had begun.

The DNR argues that these subjective considerations by the trial court were made in error and cites various cases to support its contention. We disagree. The DNR's cases may be distinguished from this case because in those cases the injured parties were either engaged in a dangerous activity or were aware that the danger existed and did not take heed. In this case, Dean was driving to work at a legal speed and had no prior knowledge of the danger that awaited him.

The DNR also contends that the fact that Rodney and DeMaris traveled on Little Scenic the morning of October 25, 1993 and arrived at the logging site without incident means the gravel piles were not concealed. However, Rodney and DeMaris had traveled Little Scenic many times while it was under construction and the DNR had previously notified them of the construction. Thus, we conclude that there is a genuine issue of material fact regarding whether the gravel pile was a concealed condition.

II. Likely to Cause Death or Serious Bodily Injury

The DNR claims that the gravel pile on Little Scenic was not likely to cause death or serious bodily injury, and even if the gravel pile was likely to cause death or serious bodily injury, the DNR did not know this.

This court has previously indicated that conditions meeting the likely to cause death or serious bodily injury standard "generally have inherently dangerous propensities, such as high voltage wire." Johnson v. State, 478 N.W.2d 769, 773 (Minn. App. 1991), review denied (Minn. Feb. 27, 1992) (citing Restatement (Second) of Torts § 335 illus. 1 (1965)).

The DNR argues that, unlike the hazard presented by high voltage utility lines and other conditions of that nature, the gravel pile on Little Scenic was not "inherently dangerous." Dean was in a semi-truck travelling at speeds of between 20 to 30 m.p.h. on a curvy, winding road with low visibility. Under these conditions, a gravel pile in the road could very possibly lead to death or serious bodily injury. Therefore, the gravel pile on Little Scenic may fall into the category of "inherently dangerous."

In order for there to be liability in this case, the DNR must have had knowledge of the danger. See Restatement (Second) of Torts § 335 (a) (ii) (1965). Specifically, section 335 requires "actual knowledge" of the danger, not the "reason to know" standard found elsewhere in the Restatement. Cobb, 441 N.W.2d at 841 (quoting Henry v. State, 406 N.W.2d 608, 612 (Minn. App. 1987), review denied (Minn. Aug. 12, 1987)).

Whether the DNR knew that the gravel pile was likely to cause death or serious bodily injury is disputed by the parties. The DNR claims that because the road was kept in passable condition for two-wheel drive vehicles (not semi-trucks), it had no actual knowledge that the gravel piles may have been inherently dangerous. Rodney argues that the DNR should have been aware that semi-trucks would be using the road to haul timber, not just two-wheel drive trucks, as he had applied for and received a logging permit through the DNR. Further, Rodney testified that he informed Bugge that his trucks were having problems traveling around the gravel. Because (1) Rodney had received a permit from the DNR; (2) the DNR knew that Rodney utilized semi-trucks on Little Scenic, and (3) Rodney complained to the DNR about the gravel piles interfering with his work, we conclude that there is a genuine issue of material fact regarding whether the DNR had actual knowledge of the fact that conditions may have been "inherently dangerous."

III. Reasonable Care to Warn

The DNR claims that it provided reasonable warning of the gravel pile as required by the Restatement, which indicates that the landowner must exercise reasonable care to warn trespassers of the condition and the risk involved. See Restatement (Second) of Torts § 335(b) (1965). The DNR argues that because it notified Rodney of the construction, he should have notified Dean. The DNR also argues that warning signs were placed around the construction area and were probably removed by travelers on Little Scenic, which was beyond the DNR's control.

There is no language within in the Restatement that allows for transfer of the duty to a third party to provide reasonable warning. Informing Rodney that the road was under construction is not sufficient to constitute reasonable warning to Dean. Also, notification of the construction on Little Scenic is not sufficient to constitute reasonable warning of the gravel pile.

Finally, Bugge testified that he knew the signs had been removed and were no longer visible, yet he made no effort to insure that more signs were erected. Although the DNR erected signs, a public works engineer testified that the signs were inadequate. He testified that common industry practice dictated an illuminated/reflector sign or a weighted-down sign that prevented removal. Thus, the trial court properly determined that there is a genuine issue of material fact regarding whether the DNR exercised reasonable care to warn of the gravel pile.

Affirmed.

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