may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
James Simpson, d/b/a Park Amoco,
defendant and third-party plaintiff,
Roger Schave, et al., d/b/a Total Image Salon,
Filed August 19, 1997
Hubbard County District Court
File No. C8-95-521
Timothy J. Becker, Charles A. Ramsay, Ramsay & Becker, Ltd., 619 Rosedale Towers, 1700 West Highway 36, Roseville, MN 55113 (for appellant)
James B. Wallace, Robert D. Tiffany, Wallace Law Office, 201 East First Street, P.O. Box 27, Park Rapids, MN 56470 (for respondent Simpson)
Bruce H. Carlson, McNair, Larson & Carlson, Ltd., 51 Broadway, Ste. 600, P.O. Box 2189, Fargo, ND 58108-2189 (for respondent Rossman)
Charles R. Powell, Powell, Powell & Hunter, 713 Beltrami Avenue, P.O. Box 908, Bemidji, MN 56601-0908 (for respondents Shave, et al.)
Considered and decided by Lansing, Presiding Judge, Harten, Judge, and Thoreen, Judge.[*]
In December 1992, appellant Richard Kriss slipped and injured himself on an icy public sidewalk in front of the Total Image Salon. In August 1995, Kriss sued the owner (Louis Rossman) and operator (James Simpson) of Park Amoco, a gas station located next to the salon, alleging that water from the negligent operation of the station's car wash created ice bumps that caused him to slip. The gas station's operator later served a third-party complaint on the salon's owners (Roger and Marlys Schave), claiming that snow melting from the salon's negligently designed roof created the ice bumps. Respondents Rossman, Simpson, and Schave moved for summary judgment, which the district court granted. On appeal, Kriss argues that summary judgment is inappropriate because he presented evidence that established a fact issue as to whether respondents created or contributed to the sidewalk's dangerous condition. We affirm.
Generally, an abutting landowner or occupant of property owes no duty to pedestrians to keep a public sidewalk safe from natural hazards like ice and snow, even if dangerous ridges are formed as a result of normal vehicular or pedestrian traffic. Rudd v. Lyceum Dramatic Prods., Inc., 250 Minn. 328, 331, 85 N.W.2d 61, 63 (1957). An abutting landowner may be liable, however, for creating or contributing to an artificial hazard on a public sidewalk. Id. at 332, 85 N.W.2d at 64; see Olson v. City of St. James, 380 N.W.2d 555, 560 (Minn. App. 1986) (affirming directed verdict where plaintiff failed to present evidence that abutting landowners created icy condition of public sidewalk).
Kriss argues that an affidavit of his engineering and accident reconstruction expert raised a genuine issue of material fact-whether respondents created a hazardous condition on the public sidewalk-that precluded summary judgment. Kriss maintains that the record contains underlying facts on which the expert based his opinion that water from either the car wash or the salon roof created the ice bumps that caused him to slip. For record support, Kriss cites (1) the deposition of respondent Marlys Schave, (2) the unsworn statement of Donna Wilcox, and (3) the deposition of Lee Zitzer.
Following our review of the entire record, including the record evidence cited by Kriss, we agree with the district court that Kriss failed to produce evidence that established a causal connection between respondents' actions and the ice bumps that formed in front of the salon.
Initially, we note that Kriss's reliance on Wilcox's unsworn statement is misplaced. See Arneson v. Integrity Mut. Ins. Co., 344 N.W.2d 617, 619 (Minn. 1984) (unsworn statements may not support a motion for summary judgment even though unopposed by adverse affidavits); Meany v. Newell, 352 N.W.2d 779, 783 (Minn. App. 1984) (district court and appellate court could not consider unsworn statements submitted by plaintiff to oppose summary judgment motion), rev'd on other grounds, 367 N.W.2d 472 (Minn. 1985). Moreover, even if we were to consider Wilcox's unsworn statement, she only described the icy condition of the public sidewalk and the driveway area directly in front of the car wash itself. Wilcox had no personal knowledge whether water from the car wash ever flowed to the sidewalk in front of the salon, where Kriss fell, although she speculated that it was "possible."
Similarly, respondent Marlys Schave testified that she had no personal knowledge that water from the car wash formed the ice bumps that Kriss slipped on. Although Schave testified that water from the car wash would sometimes run across the sidewalk in front of the salon, she had no knowledge whether this may have occurred in December 1992. Accordingly, there is no evidentiary foundation for the expert's opinion that operation of the car wash created the ice bumps in front of the salon. See E. H. Renner & Sons, Inc. v. Primus, 295 Minn. 240, 243, 203 N.W.2d 832, 835 (1973) ("Proof of a causal connection must be something more than merely consistent with the complainant's theory of the case."); see also Useldinger, 505 N.W.2d at 328 ("Mere speculation, without some concrete evidence, is not enough to avoid summary judgment.").
Finally, with respect to the expert's opinion that melting snow from the salon's allegedly defective roof created the ice bumps, Kriss relies on the deposition of Lee Zitzer, respondent Simpson's insurance agent. In December 1994, two years after Kriss fell, Zitzer took pictures to "demonstrate" that the ice bumps were caused by a source other than the car wash. Zitzer testified that he believed melting snow from the salon's roof may have created the ice bumps, but he had no personal knowledge concerning the source of water that formed the ice bumps in December 1992. Accordingly, Zitzer could not offer competent testimony regarding the alleged causal connection.
We conclude that the district court properly granted summary judgment.
[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.