may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Bertha Dawn White,
City of Two Harbors,
Independent School District No. 381-Lake Superior,
Filed October 21, 1997
Lake County District Court
File No. C896214
David L. Weidt, 332 West Superior Street, P.O. Box 630, Duluth, MN 55801-0630 (for appellant)
Scott Ballou, Leo I. Brisbois, Stich, Angell, Kreidler, Brownson & Ballou, P.A., The Crossings, Suite 120, 250 Second Avenue South, Minneapolis, MN 55401 (for respondent)
Considered and decided by Klaphake, Presiding Judge, Davies, Judge, and Peterson, Judge.
After appellant Bertha Dawn White slipped and fell on a public sidewalk that ran alongside school property, she brought this negligence action against respondent Independent School District No. 381-Lake Superior and the City of Two Harbors. The district court concluded that the school district and the city were immune from tort liability under Minn. Stat. § 466.03, subd. 4 (1992), and granted summary judgment in their favor. White appeals from the summary judgment in favor of the school district. We affirm.
On February 8, 1993, White slipped and fell on an icy sidewalk bordered on one side by a street boulevard and on the other side by a school yard. The school principal, Robert Lackore, testified that on February 8, 1993, in the area where White fell, he observed smooth, glare ice caused by melting, refreezing, and runoff. He admitted that some water from the school playground flowed across the sidewalk. Scott Larson, who performed snow removal services for the school district, testified that snow removal in the area where White fell was "a perennial problem every year because of the runoff running off of the playground" and that the runoff from the playground created "a smooth layer of glare ice" on the sidewalk where White fell. Larson also testified that he believed drainage from the playground coming into the area where White fell had something to do with the conditions he observed in a February 10, 1993 photo of the area where White fell.
Randy and Karen Osberg stated in an affidavit that as residents of northern Minnesota, they "are reasonably familiar with the process by which ice and snow accumulates on sidewalks." They further stated that on February 8, 1993, they observed the site where White fell and that based on photographs and videos accurately depicting "the scene observed on February 8, 1993," they
observed the formation of ridges, hummocks, depressions or other irregularities within the accumulation of ice at the site where Mrs. White fell that indicated that the accumulation had occurred over a period of time rather than a single day of thawing and refreezing.
White's husband, Darrell White, submitted an affidavit stating essentially the same thing. His observations were based on a February 10, 1993 visit to the site where White had fallen and on photos and videos taken February 10, 1993.
D E C I S I O N
On appeal from a summary judgment, this court must determine whether any genuine issues of material fact exist and whether the district court erred in applying the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). This court must view the evidence in the light most favorable to the nonmoving party. Id. The nonmoving party, however,
cannot rely on the pleadings alone to defeat a summary judgment motion but instead must produce specific facts which establish the existence of a genuine issue for trial.
Krogness v. Best Buy Co., 524 N.W.2d 282, 285 (Minn. App. 1994).
[S]ummary judgment on a claim is mandatory against a party who fails to establish an essential element of that claim, if that party has the burden of proof, because this failure renders all other facts immaterial.
Lloyd v. In Home Health, Inc., 523 N.W.2d 2, 3 (Minn. App. 1994).
Minn. Stat. § 466.03, subd. 4 (1992) provides that a municipality is immune from liability for
[a]ny claim based on snow or ice conditions on any highway or public sidewalk that does not abut a publicly owned building or publicly owned parking lot, except when the condition is affirmatively caused by the negligent acts of the municipality.
For purposes of immunity from tort liability, a school district is a municipality. Minn. Stat. § 466.01, subd. 1 (1992).
White fell on a public sidewalk. The sidewalk did not abut a public building or parking lot. Abut is defined as to reach, touch, end at, or border on and also means no intervening land. Black's Law Dictionary 11 (6th ed. 1990). On one side, the school yard lay between the sidewalk where White fell and the school building. The other side of the sidewalk was bordered by a street boulevard.
When an icy sidewalk
is the result of natural weather conditions rather than the affirmative acts of the municipality, the municipality is immune from liability for accidents caused by the condition of the road. On the other hand, where the injury-causing condition was created by the acts of the municipality, the exception granting immunity does not apply.
In re Jones, 419 N.W.2d 839, 841 (Minn. App. 1988) (immunity from liability for highway accident under Minn. Stat. § 466.03, subd. 4 (1984)).
White argues that the icy condition of the sidewalk where she fell was affirmatively caused by the school district's negligent construction of the school playground during the 1950s. White contends that the playground's drainage system was inadequate, thereby resulting in excessive runoff and refreezing of melting snow and ice in the area where she fell. Lackore testified that some water from the playground flowed across the sidewalk in the area where White fell. Larson testified that snow removal in the area where White fell was "a perennial problem every year because of the runoff running off of the playground" and that the runoff from the playground created "a smooth layer of glare ice" on the sidewalk in the area where White fell.
Evidence that water from the playground flowed across the sidewalk in the area where White fell and caused ice to form is not sufficient to prove that the playground or its drainage system was negligently constructed. "Mere slipperiness of a sidewalk by either ice or snow is not a defect for which [municipalities] are liable." Doyle v. City of Roseville, 524 N.W.2d 461, 463 (Minn. 1994) (municipality not liable when runoff from melting snow froze and caused glare ice to form on public parking lot). In cases involving private owners of property abutting public sidewalks, the supreme court has imposed liability on the owners when runoff from a structure on the property increased the dangerousness of naturally accumulated ice and snow. E.g. Lenz v. City of Minneapolis, 283 Minn. 180, 183, 167 N.W.2d 22, 25 (1969) ("if defendants here increased the hazard that normally existed during the winter months by permitting snow and ice which had accumulated on the canopy or overhang attached to their building to melt and trickle onto the sidewalk, this introduced a new element of danger which, if established by competent evidence, might well create liability"); Hansen v. City of Minneapolis, 261 Minn. 568, 569-570, 113 N.W.2d 508, 509-10 (1962) (runoff from building roof caused lump of ice to form under drain downspout). Lackore testified that some water from the playground flowed across the sidewalk in the area where White fell, but did not testify that the runoff was caused by the manner in which the playground was constructed or that this caused the formation of the ice on which White fell. Larson testified that he believed that runoff from the playground had something to do with the icy condition of the sidewalk where White fell, but he did not testify that the manner in which the playground was constructed caused the condition of the sidewalk at the time White fell. This evidence was insufficient to show that negligent constructinon of the playground caused the formation of the ice on which White fell. Cf. E.H. Renner & Sons, Inc. v. Primus, 295 Minn. 240, 243, 203 N.W.2d 832, 835 (1973) ("[p]roof of causal connection must be something more than merely consistent with complainant's theory of the case"). Moreover, the evidence presented by White does not show that the area where she fell was more slippery than other areas of the sidewalk.
White alternatively argues that the school district is liable under the common law rule governing icy sidewalks. The common law rule is that a municipality can be held liable for injuries sustained in a fall on a slippery sidewalk
if it negligently permits an accumulation of ice and snow to remain on a sidewalk for such a period of time that slippery and dangerous ridges, hummocks, depressions, and other irregularities develop there.
Doyle, 524 N.W.2d at 463.
White presented evidence that ridges, hummocks, depressions, or other irregularities had formed on the ice where she fell, indicating that the ice had accumulated over a period of time. But in Jones this court questioned whether the common law rule was still good law following the adoption of Minn. Stat. § 466.03, subd. 4:
Respondents attempt to fit this case into the "affirmative cause" exception to immunity by arguing that the county acted affirmatively to maintain the roadway by plowing and sanding it, yet negligently failed to salt it. They rely on the distinction Minnesota courts have historically drawn between dangerous conditions which occur naturally, and those which have artificial causes:
The rule is that the municipality is not liable for mere slipperiness resulting from the natural accumulation [on streets and sidewalks] of ice and snow, however dangerous * * * the situation thus created may be.
Nichols v. Village of Buhl, 152 Minn. 494, 496, 193 N.W. 28, 29 (1922).
If, however, a dangerous condition was artificially created, the municipality could be liable for failing to correct the condition whether or not the acts of the municipality affirmatively created it. Id. at 497, 193 N.W. at 29. Thus the municipality could be liable for failing to remove ice or snow if the use of the sidewalks and streets caused the formation "of slippery and dangerous ridges, depressions, and irregularities to such an extent as to render [them] dangerous and unsafe."
While those cases have not been overruled, their continued validity under the 1963 Municipal Tort Liability Act is doubtful. Under prior law, a municipality could be liable for failing to remove a known dangerous condition created by any artificial means. By contrast, Minn. Stat. § 466.03, subd. 4 requires that the condition have been affirmatively caused by the acts of the municipality. Moreover, cases since 1963 have applied the earlier rule only to icy sidewalks, implying that the statute did change the law with respect to streets used for vehicular traffic.
In this case, the slippery road conditions were caused by traffic on the road which packed down natural snowfall. While the county may have been able to avert the condition by using salt, the county cannot be said to have affirmatively caused the slipperiness. The statute requires the condition to have been caused by an act, not an omission, of the county. Respondents' argument, that failure to maintain a road can be an affirmative cause of its bad condition, would essentially nullify that statutory language.
Jones, 419 N.W.2d 839, 841 (Minn. App. 1988) (alterations in original) (citations omitted).
The Jones court interpreted Minn. Stat. § 466.03, subd. 4 (1984), which applied to "ice conditions on any highway or other public place." In 1986, the legislature amended the statute by substituting "or public sidewalk that does not abut a publicly-owned parking lot" for "or other public place." 1986 Minn. Laws ch. 455, § 65. The Jones analysis, thus, now also applies to sidewalks. As the Jones court concluded, imposing liability for failure to remove ice and snow would nullify the statutory requirement that an affirmative act by the municipality caused the slippery condition; therefore, evidence that a municipality allowed ice to accumulate on a sidewalk long enough to form irregularities is insufficient to defeat the immunity granted by Minn. Stat. § 466.03, subd. 4.
In a footnote in its brief, the school district requested that this court preclude White from filing a reply brief because she filed her informal letter brief late. Minn. R. Civ. App. P. 127 provides that "an application for an order or other relief shall be made by serving and filing a written motion for the order or relief." Because the school district did not file a motion, we deny its request.