This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-96-2565

Oscar L. Haynes,

Appellant,

vs.

S. Abdelwahed, et al.,

Defendants,

City of Minneapolis,

Respondent.

Filed July 22, 1997

Affirmed

Randall, Judge

Hennepin County District Court

File No. 93-10233

George H. Smith, William A. Celebrezze, Trawick & Smith, Suite 702, 330 Second Avenue South, Minneapolis, MN 55401 (for appellant)

Jay M. Heffern, City Attorney, Michael Norton, Acting City Attorney, Larry L. Warren, Assistant City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402-2453 (for respondent)

Considered and decided by Kalitowski, Presiding Judge, Randall, Judge, and Schumacher, Judge.

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

RANDALL, Judge

Appellant Haynes challenges the district court's grant of summary judgment in favor of respondent City of Minneapolis on Haynes's negligence claims. We affirm.

FACTS

In 1988, respondent City of Minneapolis condemned a house at 1119 Humboldt Avenue and hired Ray Anderson & Sons, contractors, to remove it. Under the Minneapolis Building Code, "[t]he wrecking of any building or structure shall be complete and include the wrecking and removal of all foundations, footings, and floor slabs." Minneapolis, Minn., Code of Ordinances § 117.70 (1996). Anderson removed the house, but left in place an old cement foundation for a garage. The foundation lay below the surrounding land, creating a drop-off of approximately one foot. The city approved completion of the demolition in July of 1989.

Also in July 1989, Sayed and Zakia Abdelwahed forfeited the property for non-payment of taxes. The county and the city negotiated maintenance, and the county assumed responsibility for management of the property. Following forfeiture, the city periodically ordered the county to comply with the city's plant growth ordinances by cutting the grass on the property or paying the city to do so. The county paid the city to have the grass cut.

The property is not fenced, and has no "no trespassing" signs. By May 1991, pedestrians frequently crossed the property as a shortcut. On May 14, 1991, appellant Oscar Haynes rode his bicycle across the property. As he did so, he rode over the drop-off created by the foundation, fell, and suffered a broken neck.

This appeal arises out of Haynes's suit in negligence against the Abdelwaheds, the State of Minnesota, Anderson, Hennepin County, and the City of Minneapolis, commenced on June 21, 1993. Haynes has been unable to serve the Abdelwaheds personally with process. The court dismissed Haynes's suit against the state on February 17, 1994. Haynes executed a Pierringer release of Anderson (and received substantial monetary damages) on January 11, 1995.

On March 8, 1995, this court reversed an earlier district court denial of summary judgment for the county, holding that the county was not liable because its actions were discretionary and protected and because Haynes "failed to establish the existence of a hidden artificial danger that would give rise to a duty to warn trespassers." Haynes v. Abdelwahed, No. C7-94-2077, 1995 WL 107183 at *1 (Minn. App. Mar. 8, 1995) (Haynes I).

On December 27, 1995, the city, the last remaining defendant, moved for summary judgment on Haynes's claims against it. The district court granted the city's motion on March 19, 1996. Haynes now appeals from the district court's order of November 21, 1996, amending the judgment entered on the March 19, 1996, order.

D E C I S I O N

I.

A party may recover from a municipality for per se negligent inspection of third persons' activities only where the party establishes that the municipality has undertaken a special duty to act for the protection of others. See Cracraft v. City of St. Louis Park, 279 N.W.2d 801, 806 (Minn. 1979) (holding that municipality may be liable for negligence per se where it violates an ordinance protecting a particular class of individuals, rather than the public generally, from a specified harm). In decision whether a municipality has assumed such a duty, a court should consider all relevant factors, including: (1) the municipality's actual knowledge of the dangerous condition; (2) the party's reasonable reliance on the municipality's specific representations and conduct; (3) the existence of an ordinance designed to protect a particular class of persons rather than the public as a whole; and (4) the municipality's use of due care to avoid increasing the risk of harm. Id. at 806-07; see also Restatement (Second) of Torts §§ 286, 288 (1965) (discussing circumstances in which courts will, and will not, adopt a standard of conduct set forth in legislation or regulations).

Here, the city and maintenance persons acting on its behalf repeatedly visited the property between the demolition of the house in July 1988 and Haynes's injury on May 14, 1991. Viewed in the light most favorable to Haynes, this evidence supports at least an inference that the city had actual knowledge that the garage foundation remained on the property after demolition of the house.

Although the city had notice that the foundation remained on the premises after demolition, we conclude the city did not know of a "dangerous condition" on the property. The drop-off was not hidden and appellant does not dispute its physical characteristics. As the Haynes I court found in concluding on a substantially similar record that the foundation was not hidden, Haynes presented no evidence that "overgrown grass, or anything else, so obscured the drop-off that an alert trespasser could not have observed the condition." Haynes I, No. C7-94-2077, 1995 WL 107183 at *2. Because the primary risk of injury due to the drop-off lay in a pedestrian's or bicyclist's failure to see the drop-off, and the drop-off was not hidden, the drop-off was not a dangerous condition.

Nor did Haynes show that he relied on specific representations or conduct of the city. Although the city might have adopted the demolition ordinance, as Haynes alleges, to protect trespassers instead of the general public, such a purpose is not evident in the language of the ordinance, and Haynes has presented no evidence to support his allegations on this issue. Compare Kerns ex rel. Kerns v. G.A.C., Inc., 875 P.2d 949, 962 (Kan. 1994) (stating that ordinance requiring life saving equipment, first aid supplies, and water clarity for swimming pools was enacted to protect trespassers), with Martin v. Altman, 568 A.2d 1031, 1031 (R.I. 1990) (holding that sidewalk-shoveling ordinance created duty to public at large and not to a particular class of individuals),

Lastly, by requiring the county to maintain the property free from excessive growth of grass and weeds that might hide the foundation, the city used due care to avoid increasing the risk of injury due to the old foundation. On this record, it is clear that the city did not undertake a special duty to protect others within the meaning of Cracraft by adopting section 117.70. Accordingly, the district court did not err when it concluded that no genuine issue of material fact existed as to whether the city was negligent per se and that the city was entitled to summary judgment on this issue.

II.

Haynes argues that even if the city is not liable for negligence per se, Haynes is entitled to recover for the city's breach of a common law duty to Haynes as a trespasser. At common law:

A possessor of land who knows, [or] 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.

Restatement (Second) of Torts §§ 335 (1965) (emphasis added). A possessor is one who has actual and physical control over, exclusive detention of, or a just right to, property. Black's Law Dictionary 1046, 1048 (5th ed. 1979).

Here, the state holds the property in trust for the county and city as taxing districts, while the county has responsibility for management of the property. The city merely enforces its ordinances, such as those governing plant growth, on the property. The city does not pay for maintenance of the property, as one might expect a possessor to do. Instead, the city requires the county to pay for maintenance. On the other hand, because the city was involved with maintenance on an annual basis, the city could have at least the appearance of a possessor. But on the record as a whole, we conclude that the city is not a "possessor" of the property within the meaning of the rule set forth in the restatement.

Moreover, the restatement rule applies only in the case of a "highly dangerous artificial condition." Restatement (Second) of Torts, § 335, cmt. a (1965). Here, the foundation and the land surrounding it produced a drop-off of just twelve inches. As respondents note, nothing made the drop-off more dangerous than any other retaining wall of similar height. The record does not support a finding that the visible drop-off was "highly dangerous."

Most importantly, a party may recover under the restatement standard only if injured due to "hidden, artificial dangers." Sirek by Beaumaster v. State, DNR, 496 N.W.2d 807, 810 (Minn. 1993). The possessor is entitled to assume that trespassers will realize that no one has prepared for their arrival and that trespassers will therefore be alert to observe the conditions existing on the land. Restatement (Second) of Torts, § 335, cmt. f (1965); see, e.g., Martinez v. Minnesota Zoological Gardens, 526 N.W.2d 416, 419 (Minn. App. 1995) (denying recovery for injuries suffered when movable hand railings fell on child, on ground that railings, which had been leaning against wall, were not concealed and therefore not dangerous), review denied (Minn. Mar. 29, 1995).

Here, the city required the county to pay for trimming the weeds and grass on the property, thus ensuring that the drop-off was visible. Even assuming, as Haynes claims, that he did not see the drop-off before he rode over it, nothing in the record indicates the drop-off was concealed. As a result, the district court did not err in finding as a matter of law, as this court did in Haynes I, that the drop-off was not hidden. Even viewing the evidence in the light most favorable to Haynes, the record presents no genuine issue of material fact strong enough for us to reverse the district court's conclusion that summary judgment was appropriate for the city on the issue of common law negligence.

At oral argument, the city asserted that it had a strong immunity defense. Because the city did not raise this issue before the district court, and the district court did not address it, we decline to decide whether the city was entitled to immunity from Haynes's negligence claims.

Affirmed.