This opinion will be unpublished and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

C6-96-1510

Nancy R. Fifield, et al.,

Respondents,

vs.

Duluth Mall, Inc., et al.,

Appellants.

Filed April 15, 1997

Affirmed

Norton, Judge

Dissenting

Davies, Judge

St. Louis County District Court

File No. C2-95-601200

Patrick M. Spott, 1301 Miller Trunk Highway, Duluth, MN 55811 (for Respondents)

John D. Kelly, Kathleen S. Bray, 1000 First Bank Place, 130 West Superior Street, Duluth, MN 55802 (for Appellants)

Considered and decided by Norton, Presiding Judge, Kalitowski, Judge, and Davies, Judge.

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

NORTON, Judge

Appellants argue that the trial court erred by denying their motion for judgment notwithstanding the verdict (JNOV). The trial court properly denied appellant's motion for JNOV because: (1) extraordinary circumstances existed requiring appellants to remove snow and de-ice during an ongoing snow storm; (2) appellants had a duty to warn respondent that Entrance No. 16 would not be de-iced; and (3) the trial court's jury instruction fairly and correctly stated the applicable law. We affirm.

FACTS

Respondents Nancy Fifield and her husband are volunteers for Courage Homecrafters, a nonprofit organization that sells products of homebound individuals. Fifield was responsible for setting up a display to sell the group's products at appellant Duluth Mall on November 5, 1993.

Duluth Mall made arrangements for the sale with Courage Homecrafters months in advance. Duluth Mall's practice was to allow Courage Homecrafters to set up their display when the mall was not open to the public -- either after 9:00 p.m., when the mall is closed, or before the mall opens in the morning. Since 1985, Courage Homecrafters had always set up the night before the event. Indeed, Fifield planned to set up after the Duluth Mall closed on November 4, 1993, because she feared the van containing the products might be burglarized if left overnight and did not believe there was sufficient time to set up the next morning. A "set-up" request prepared by Duluth Mall for all mall employees indicated that the group would be arriving at approximately 9:00 p.m. on November 4 through Entrance No. 16.

Fifield testified that the weather had been bad all day on November 4. Lon Peterson, a Duluth Mall maintenance employee, testified that he plowed Entrance No. 16 at approximately 8:30 that evening but did not use any ice melt because it was snowing too heavily. Likewise, Duluth Mall's regular snow plow company had stopped plowing at 8:00 p.m. Larry Marshall, Duluth Mall operations director, testified that he did not recall whether Entrance No. 16 received a higher priority for snow removal due to Courage Homecrafters' arrival.

Fifield said the snow had begun to "slack off" by the time she and her husband arrived at the Duluth Mall. Fifield was walking up Duluth Mall Entrance No. 16 when she suddenly "hit ice under snow" and fell. Fifield felt immediate pain in her leg and wrist and was taken to the hospital where she was diagnosed with a fractured wrist and a knee injury requiring a full leg cast.

Fifield commenced a negligence action against Duluth Mall for failing to remove snow and de-ice Entrance No. 16 and failing to warn entrants that Entrance No. 16 would not be de-iced. Following a three-day trial, the jury found by special verdict that Duluth Mall was negligent in performing sidewalk maintenance and/or in failing to warn Fifield on November 4 and that this negligence was a direct cause of Fifield's fall. The jury awarded Fifield $27,616.12 for medical expenses, $10,000 for emotional distress, $30,000 for pain and disability, and $10,000 for future pain and disability. Duluth Mall filed a notice of motion for JNOV, or alternatively, a new trial on all issues. Following a hearing, the trial court denied both motions.

D E C I S I O N

Standard of Review

Duluth Mall disputes the trial court's denial of its JNOV motion.

In reviewing the facts in a case where a motion for judgment notwithstanding the verdict has been denied, we must affirm if there is any competent evidence reasonably tending to sustain the verdict.

Rettman v. City of Litchfield, 354 N.W.2d 426, 429 (Minn. 1984).

1. Duluth Mall's duty to keep its premises reasonably safe.

Duluth Mall argues that it did not have a duty to keep Entrance No. 16 clear of ice and snow. A landowner has a duty to use reasonable care to inspect and maintain the premises to protect an entrant from unreasonable risk of harm due to the premises' condition. Peterson v. Balach, 294 Minn. 161, 174, 199 N.W.2d 639, 647 (1972). Unless extraordinary circumstances exist, however, a landowner may await the end of a storm and for a reasonable time thereafter before removing snow and ice from the premises. Mattson v. St. Luke's Hosp., 252 Minn. 230, 233, 89 N.W.2d 743, 745 (1958); Niemann v. Northwestern College, 389 N.W.2d 260, 262 (Minn. App. 1986), review denied (Minn. Aug. 27, 1986).

The trial court found as a matter of law that there was an ongoing storm at the time Fifield fell. Marshall testified that the day started out with freezing rain, sleet, snow, and temperatures around the mid-30's. A "Snow Fall Report" filled out by Marshall indicated that there was "very heavy snow and alot of cleanup." Marshall testified that he left work that day at 5:00 p.m., but returned to the mall between 6:00 and 7:00 p.m, at which time the roads were in poor driving condition. Lon Peterson testified that snow was falling and blowing during the evening. Finally, National Weather Service records indicated that it snowed over six inches in Duluth that day. We agree with the trial court that this evidence reveals no factual dispute that a storm was ongoing.

The jury determined that Duluth Mall was not entitled to await the end of the storm before removing snow and ice because extraordinary circumstances existed. Duluth Mall argues that the evidence does not support the finding of extraordinary circumstances. In its memorandum accompanying the denial of JNOV, the trial court stated that two extraordinary circumstances supported the jury's verdict in this case: (1) a physical defect due to Duluth Mall's construction of Entrance No. 16; and (2) Duluth Mall's commitment with Courage Homecrafters regarding the use of the mall.

Duluth Mall argues that the construction of the mall at Entrance No. 16 is not a physical defect constituting an extraordinary circumstance. In the JNOV memorandum, the trial court found that Entrance No. 16 is an extraordinary circumstance because:

Entrance No. 16 was known by the Mall Operations Director, Larry Marshall, to be a "drop point," a point where a greater amount of snow accumulated than other entrances. The Mall knew that, because of the design of the building, snow accumulated at a faster, greater rate at Entrance No. 16. This "extraordinary circumstance" is akin to a defect in physical construction (See Sarsfield v. St. Mary's Hospital, 268 Minn. 362, 363-64 n.1, 129 N.W.2d 306, 307-08 n.1 (1964)), or improper lighting (See Bednar v. Levitan, C2-95-1963 (Minn. Ct. App. March 12, 1996)) which may also be the basis for finding an exception to the Mattson rule.

Duluth Mall alleges that Sarsfield and Bednar are irreconcilable with this case. In Sarsfield, the Minnesota Supreme Court held that the hospital's construction of a wooden walkway may be an extraordinary circumstance if the walkway is unreasonably dangerous. Sarsfield, 268 Minn. at 363-64 n.1, 129 N.W.2d at 307-08 n.1. In Bednar, this court said that prior accumulations of ice or insufficient lighting of the walkway may have "render[ed] the walkway unreasonably dangerous," thus constituting an extraordinary circumstance. Bednar, unpub. op. at 4.

Like Sarsfield and Bednar, this case involves construction or defect of an item that makes the item unreasonably dangerous. Here, Larry Marshall testified that the construction of the mall at Entrance No. 16 creates a "drop point" for snow, which results in excessive snow accumulation. The jury could have found that the mall construction at Entrance No. 16 caused excessive accumulation of snow and created an unreasonably dangerous condition. This evidence supports the jury's verdict; therefore, the trial court properly denied Duluth Mall's JNOV motion. Rettman, 354 N.W.2d at 429.

Duluth Mall argues that the "commitment" it had with Courage Homecrafters for the sale set-up was not an extraordinary circumstance. See Hedglin v. Church of St. Paul, 280 Minn. 119, 124-25, 158 N.W.2d 269, 272-73 (1968) (in negligence action by parishioner against church for injury sustained when parishioner slipped on snow-covered steps, holding that church was permitted to await end of storm before removing snow); Niemann, 389 N.W.2d at 262 (in negligence action by pedestrian against college for injury sustained on slippery sidewalk, holding that college was permitted to wait until storm ended before cleaning sidewalk because no extraordinary circumstances existed).

The trial court found the Mall's "commitment" with the Courage Homecrafters was an extraordinary circumstance because:

[T]his is a specific situation where a business organization set the time for arrival, knew volunteers would be arriving over a specific, finite period of time, at a specific entrance, and for a specific purpose.

In distinguishing Hedglin, the court noted:

In Hedglin, there was no specific commitment to the plaintiff who entered the church service during the storm. In addition, the plaintiff in Hedglin had the option of using the handrail and she chose not to. There was no alternative option for Nancy Fifield. Finally, there were no extraordinary circumstances giving rise to an exception to the rule enunciated in Mattson.

The trial court also distinguished Niemann "because there were no extraordinary circumstances giving rise to an exception to the Mattson rule. The plaintiff in Niemann was a mere pedestrian to whom the college had made no commitment."

We disagree with the trial court's analysis. Neither Hedglin nor Niemann discussed whether the injured party and the landowner had a commitment. Both courts focused only on the absence of an extraordinary circumstance, such as a physical defect creating an unreasonably dangerous condition that would impose on the landowner the duty to remove snow during an ongoing storm. Therefore, it was incorrect to use those cases as support for the proposition that the mall's "commitment" with Courage Homecrafters was an extraordinary circumstance.

Next, Duluth Mall contends that the trial court erred by considering whether the mall could have spread de-icer at Entrance No. 16 without an undue burden. The trial court's observation that Duluth Mall could have removed the snow and ice without an undue burden is appropriate. See Mattson, 252 Minn. at 233, 89 N.W.2d at 745 ("The exercise of reasonable care for the safety of invitees requires neither the impossible or nor the impractical * * * ").

Finally, Duluth Mall argues the trial court imposed a duty on it beyond that contemplated by Mattson. We disagree. Mattson recognized that, when extraordinary circumstances exist, the landowner is required to remove snow and ice to keep the walk reasonably safe, even in an ongoing storm. Here, the trial court found the defect in the mall's construction at Entrance No. 16 was an extraordinary circumstance requiring Duluth Mall to keep the entrance clear of ice and snow during the ongoing storm. This finding is consistent with Mattson. The dissent reads our holding to require all landowners to remove snow during the midst of a storm. This interpretation oversimplifies our holding. A landowner is not responsible for removing snow during a storm unless extraordinary circumstances exist, such as the construction defect at Entrance No. 16. Our holding in no way envisions a landowner being responsible for clearing snow during a snow storm when these extraordinary circumstances are not present.

2. Duluth Mall's duty to warn Fifield.

Duluth Mall contends the evidence does not support the verdict that it breached its duty to warn Fifield of the conditions at Entrance No. 16. Duluth Mall argues that it had no duty to warn Fifield because the condition of the entrance was a common, open, and obvious danger.[1] See Munoz v. Applebaum's Food Market, Inc., 293 Minn. 433, 434, 196 N.W.2d 921, 921-22 (1972) (holding store had no duty to warn pedestrian because hazard of pool of water in plain view was obvious).

In its order denying JNOV, the trial court found:

[Duluth Mall] also argued that the Court erred in instructing the jury on the duty to warn. The general rule of law is that even for obvious dangers, a possessor has a duty to warn if harm should be anticipated despite the obviousness of the danger. Baber v. Dill, 531 N.W.2d 493, 496 (Minn. 1995). However, a possessor of land has no duty to warn where the anticipated harm involves danger so obvious that no warning is necessary. Id. In the present case, the Mall knew or should have known that the Courage Homecrafters would come to the Mall, despite the weather conditions, because of their previous commitment. The fact that it had snowed was open and obvious, but the fact that the entrance would not be de-iced, or that it was a drop point for snow accumulation, was not known by the Courage Homecrafters. Also, there was testimony from which the jury could conclude the danger was not obvious. Witness Malcolm Fifield described the conditions as ice covered by snow. Therefore, the Mall had a duty to warn, and the jury instruction stating so was proper.

Fifield's testimony at trial that the ice was covered by snow could have allowed the jury to conclude that the danger of Entrance No. 16 was not obvious. Therefore, the trial court properly found that the evidence supports the jury's verdict that Duluth Mall breached its duty to warn Fifield of Entrance No. 16's condition and properly denied JNOV.

3. Jury instructions.

Duluth Mall first contends the trial court erred by submitting the issue of extraordinary circumstances to the jury. This issue is generally for the jury to determine. See Sarsfield, 268 Minn. at 363-64 n.1, 129 N.W.2d at 308 n.1 (allowing jury to determine existence of extraordinary circumstances).

The jury instruction given indicates that the trial court submitted the extraordinary circumstances issue to the jury:

When deciding whether extraordinary circumstances exist which would require the business to keep its entrance walks clear and safe even while a snowstorm is continuing, you may consider the ease or difficulty of this work for the business establishment and the knowledge of the business establishment of the risk posed by any unsafe accumulation. The fact that a possessor of land may have attempted some snow removal efforts during a snowstorm which are only temporarily effective does not, in and of itself, create a greater or different duty.

This instruction correctly states the law on this issue. Where instructions fairly and correctly state the applicable law, an appellate court will not grant a new trial. Alevizos v. Metropolitan Airports Comm'n, 452 N.W.2d 492, 501 (Minn. App. 1990), review denied (Minn. May 11, 1990).

Next, Duluth Mall argues that the jury instruction misstated the law when it simply required Duluth Mall to keep the walks "clear and safe," instead of "reasonably" clear and safe. Duluth Mall alleges that this language implies that a landowner has the duty to keep walkways absolutely "clear and safe" in the midst of an ongoing storm. We disagree.

The jury instructions as a whole fairly and adequately explained the law of this case. See State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988) (citation omitted) (requiring appellate court to review jury charge as a whole to determine whether they fairly and adequately explained law of case). The Duty of Possessor to Entrant jury instruction repeatedly referred to the landowner's duty to use reasonable care. Moreover, the instruction required the jury to consider the ease or difficulty of keeping the walk safe and clear. Finally, the court's Negligence and Reasonable Care instruction referred the jurors to the reasonableness standard. Assuming the jurors were intelligent and practical people, it cannot be argued that they interpreted this instruction to mean that the mall had to keep the walkway absolutely clear and safe during the middle of a blizzard. See State v. Weaver, 386 N.W.2d 413, 418 (Minn. App. 1986) ("reviewing court must 'assume that the jurors were intelligent and practical people'") (quoting State v. Edwards, 269 Minn. 343, 350, 130 N.W.2d 623, 627 (1964)), review denied (Minn. June 19, 1986). The trial court did not exceed its "considerable latitude" in phrasing this jury instruction. See State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990) (trial court has "considerable latitude" when selecting language for jury charge) (quoting Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986)), cert. denied, 498 U.S. 1030 (1991).

Affirmed.

DAVIES, Judge (dissenting).

I respectfully dissent. This case, in my view, shifts the burden of due care to the landowner and away from an invitee who is confronted with an obvious hazard.

The law in Minnesota has been that a business or other inviter may wait until the end of a storm--and for a reasonable time thereafter--before removing snow and ice. Mattson v. St. Luke's Hosp., 252 Minn. 230, 233, 89 N.W.2d 743, 745 (1958); Niemann v. Northwestern College, 389 N.W.2d 260, 262 (Minn. App. 1986), review denied (Minn. Aug. 27, 1986). This is a realistic and efficient rule.

There is an exception to this rule requiring prompt removal when extraordinary circumstances exist. Mattson, 252 Minn. at 233, 89 N.W.2d at 745. For example, in Sarsfield v. St. Mary's Hosp., the supreme court held that the jury could find that the hospital's construction of a temporary plywood walkway created an extraordinary, unreasonably dangerous circumstance requiring the hospital to clear slush from the walkway "prior to a reasonable time following the cessation of a storm." 268 Minn. 362, 363-64 n.1, 364, 129 N.W.2d 306, 307-08 n.1, 308 (1964).

Liability was imposed in this case on the basis of circumstances claimed to be extraordinary. But, in my view, the evidence does not support a finding of extraordinary circumstances.

The trial court first viewed the arrangement appellant mall had with Courage Homecrafters as justifying a finding of extraordinary circumstances. But Courage Homecrafters created a minimal increase in traffic (a handful of people), as compared to the usual traffic at the time of closing time (departures by mall customers and arrival and departure of evening employees). The mall owed its customers and employees care equal to that owed respondent. Thus, to view the few Courage Homecrafters as creating an extraordinary circumstance is beyond logic. To do so merely provides an excuse to compensate this victim of a quite ordinary Minnesota winter storm.

The trial court next cited as an extraordinary circumstance the design of entrance 16, which design caused an unusual accumulation of snow at that door. There is, however, no evidence that an accumulation of snow greater than that at other entrances contributed in any way to respondent's fall.

If the finding of an "extraordinary circumstance" in this case is affirmed, this court will in reality have imposed a requirement on Minnesota landowners to keep walkways clear of snow from the beginning to the end of winter storms. That is a requirement that cannot be met without an extraordinary waste of resources. Among other consequences, using mechanical snow removal equipment may no longer be adequate to avoid tort liability unless the equipment is brought to the scene with each inch (or half inch) of new-fallen snow.

[ ]1 Furthermore, Duluth Mall argues that, because the Mall had no duty to de-ice Entrance No. 16 under Mattson, they had no duty to warn Fifield of the conditions there. As previously discussed, Mattson does not provide Duluth Mall with an excuse for not de-icing Entrance No. 16. Therefore, Mattson does not provide the mall with an excuse for not warning Fifield of Entrance No. 16's condition.