This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-96-705

C2-96-1018

Kimberly Arth,

Respondent,

vs.

City of Edina,

Appellant.

Filed February 11, 1997

Affirmed

Willis, Judge

Hennepin County District Court

File No. PI952320

David R. Ludwigson, 336 Robert Street North, Suite 1506, St. Paul, MN 55101 (for Respondent)

Robert W. Kettering, Jr., James M. Susag, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., 500 Young Quinlan Building, 81 South Ninth Street, Minneapolis, MN 55402 (for Appellant)

Considered and decided by Peterson, Presiding Judge, Willis, Judge, and Foley, Judge.[*]

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

WILLIS, Judge

Appellant City of Edina (the city) challenges both the denial of its motion for summary judgment and the judgment in favor of a bicyclist who was injured when she ran into a city maintenance vehicle on a city bike path. The city argues that it was entitled to recreational use immunity and that the district court gave an erroneous jury instruction. We affirm.

FACTS

On the afternoon of June 25, 1990, Kimberly Arth was bicycling on a bicycle path at Bredesen Park in Edina. Matthew Hannan, a city employee, was repainting signs on the path, working from a city maintenance vehicle that he had parked on the bicycle path. As Arth came around a curve in the bike path, she saw the maintenance vehicle, which had not been there on her previous lap around the park. The vehicle was partially blocking the path, and Arth saw it too late to avoid colliding with it. Arth sustained serious injuries in the collision.

Arth brought a negligence suit against the city of Edina. The city moved for judgment on the pleadings or, alternatively, summary judgment, arguing it was immune from tort liability under Minn. Stat. § 466.03, subd. 6e (1996), the recreational use immunity statute. The district court denied the city's motion, and the matter proceeded to trial. The city did not request jury instructions on the question of immunity, and the case was tried on a negligence theory. The jury awarded $141,237.87 to Arth, including $55,300 for loss of earning capacity. The city made a motion for judgment notwithstanding the verdict (JNOV) on the basis of immunity and a motion for JNOV, new trial, or conditional remittitur on the ground of an allegedly erroneous jury instruction on earning capacity. The district court denied the motions for posttrial relief in their entirety. The city appealed separately the order denying summary judgment and the judgment, and this court granted the city's motion to consolidate the appeals.

D E C I S I O N

1. Immunity.

The city argues that it was entitled to recreational use immunity and that the district court therefore erred by denying its summary judgment motion.[1]

On appeal from summary judgment, this court determines whether there are any genuine issues of material fact 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). Whether immunity applies is a question of law. See Snyder v. City of Minneapolis, 441 N.W.2d 781, 786 (Minn. 1989). This court is not bound by a district court's decision on a purely legal question. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

Minnesota law provides that municipalities are immune from tort claims

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 (1996). Arth's claim was based on the maintenance of a city park in Edina. The city is therefore entitled to immunity unless its conduct was such that a trespasser would have been entitled to recover in tort against a private person.

The standard of care owed by a landowner to 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.

Johnson v. Washington County, 518 N.W.2d 594, 599 (Minn. 1994) (applying section 335 in recreational use immunity case).

An injured party must prove all the elements of section 335 to defeat immunity. Schaffer v. Spirit Mountain Recreation Area, 541 N.W.2d 357, 360 (Minn. App. 1995). Under the section 335 standard, "a landowner will be liable only for failing to exercise reasonable care to warn trespassers about hidden, artificial dangers created or maintained by the landowner." Sirek v. State Dep't of Natural Resources, 496 N.W.2d 807, 810 (Minn. 1993).

The city argues that the maintenance truck was not hidden and that Arth collided with it because she was not paying attention to her surroundings. A landowner may assume that any trespassers will be on the alert for conditions that exist on the land. Id. The issue is not whether the injured person actually saw the hazard, but whether the hazard would have been visible to someone paying attention to conditions on the land. Steinke v. City of Andover, 525 N.W.2d 173, 177 (Minn. 1994).

The city argues that the facts in this case are analogous to several Minnesota cases in which the supreme court determined there was no hidden hazard. In Steinke, the supreme court found that a drainage ditch was not hidden and could have been discovered in time to avoid it by anyone observing "the normal conditions of rural land." Id. In Sirek, the court found that cars on a highway did not present a hidden danger, even though a curve limited sight distance. Sirek, 496 N.W.2d at 812. Finally, the city relies on Schaffer, where the supreme court found that a barrel next to a ski slope could easily have been discovered and thus was not concealed. Schaffer, 541 N.W.2d at 361.

This case is distinguishable from those cited by the city. The maintenance vehicle was not a "normal condition" on the bicycle path, nor was it a predictable danger like cars on a highway or an obvious, but unobserved, hazard such as a barrel on the edge of a ski slope. In denying summary judgment, the district court concluded that

[t]aking the facts most favorable to the non-moving party for purposes of this motion, the Court finds that the maintenance vehicle was concealed as [Arth] approached the corner on her bicycle.

The city does not dispute that the other elements of section 335 have been met, and the record supports the district court's conclusions that (1) the maintenance vehicle was an artificial condition on the land created by the city that was likely to cause death or serious bodily harm and (2) the city did not warn of the condition. The district court correctly concluded that the city was not entitled to recreational use immunity from Arth's lawsuit and therefore did not err by denying summary judgment.

2. Jury Instruction.

The city argues the district court erred by allowing the jury to consider Arth's claim for loss of future earning capacity because the evidence presented at trial was insufficient to justify an award for loss of future earnings.[2] A district court has broad discretion in selecting jury instructions and will not be reversed absent an abuse of that discretion. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986).

Loss of future earning capacity "is an item of general damages which does not require specific proof of actual earnings or income either before or after the injury." Kwapien v. Starr, 400 N.W.2d 179, 183 (Minn. App. 1987). Before a jury may be instructed on loss of future earning capacity, the plaintiff must establish by a fair preponderance of the evidence that the loss will occur. Id. In Sylvester v. Gleason, 371 N.W.2d 573 (Minn. App. 1985), this court said,

where there is medical testimony of some permanent impairment and also where there is testimony confirming the plaintiff's contention that she is unable to perform her duties in the same manner as before the accident, it is proper for the jury to consider loss of future earning capacity.

Id. at 576.

There was medical testimony that Arth sustained permanent injuries to her back, neck, jaw, and knee. Arth also presented evidence that she was forced to leave her job as a waitress and had difficulty with a subsequent job due to her injuries. Given the evidence presented at trial regarding Arth's injuries and their effect on her ability to work, the district court did not abuse its discretion by allowing the jury to consider loss of future earning capacity.

Affirmed.

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

[ ]1 An order denying summary judgment to a party asserting immunity is immediately appealable as a final judgment. Anderson v. City of Hopkins, 393 N.W.2d 363, 364 (Minn. 1986). Although the city did not appeal the denial of summary judgment until after trial, the appeal was timely because notice of filing of the summary judgment order (filed on June 14, 1995) was served by mail on March 5, 1996. Notice of appeal was filed on April 8, 1996. See Minn. R. Civ. App. P. 104.01 (providing that appeal may be taken from an order within 30 days after service of notice of filing); Minn. R. Civ. P. 6.05 (providing that where service is by mail, three days shall be added to the time in which party must act); Minn. R. Civ. P. 6.01 (providing that where a period of time prescribed by the rules ends on a weekend or holiday, the period runs until the end of the next day that is not a weekend or holiday).

The city attempted to raise the legal question of immunity in its motion for JNOV. But the issue in considering whether to grant a motion for JNOV is whether the evidence is sufficient to support the verdict. Minn. R. Civ. P. 50.02(a). Because the immunity issue in this case was not discussed at trial and does not turn on whether the evidence supports the verdict, our immunity analysis focuses on the appeal from summary judgment.

[ ]2The relief requested is reversal of the motion denying JNOV, or in the alternative, a new trial. Although the appeal is from the judgment and not from the order denying posttrial relief, "timely appeal from the judgment on the merits will present all procedural errors preserved in the motion for a new trial." Hackett v. State Dep't of Natural Resources, 502 N.W.2d 425, 427 (Minn. App. 1993).