This opinion will be unpublished and

may not be cited except as provided by

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




Beverly Harriet LePage, as Trustee

for the Heirs and Next of Kin

of Kevin Allen LePage,



State of Minnesota,


Filed November 18, 1997


Motion denied

Amundson, Judge

Hennepin County District Court

File No. 95-9182

Thomas J. Conlin, Roman Lifson, Robins, Kaplan, Miller & Ciresi, L.L.P., 2800 LaSalle Plaza, 800 LaSalle Avenue, Minneapolis, MN 55402 (for appellant)

Hubert H. Humphrey III, Attorney General, David T. Schultz, Assistant Attorney General, 445 Minnesota Street, Suite 1100, St. Paul, MN 55101-2128 (for respondent)

Considered and decided by Huspeni, Presiding Judge, Amundson, Judge, and Foley, Judge.[*]



The district court granted respondent State of Minnesota's (state's) motion for summary judgment, concluding that the state was protected by vicarious official immunity from appellant's allegations of negligent bridge construction. Appellant appealed and the state filed a notice of review, arguing that the district court erred by denying a previous motion for summary judgment based on a claim that appellant's decedent was a trespasser on the bridge. Because we agree that appellant's decedent was a trespasser, we affirm the entry of summary judgment in favor of the state.


On the evening of December 31, 1993, Kevin and Harriet LePage, along with four friends, drove towards downtown Minneapolis to celebrate New Year's Eve. They parked their automobile on Third Avenue North, crossing over Interstate Highway I-394, using the Fifth Street Bridge. The Fifth Street Bridge has sidewalks for pedestrians with concrete barriers on the sides that are topped with chain link fences. After crossing the highway, the party continued along Fifth Street, crossing Second Avenue towards downtown.

After spending some time downtown, the party began to walk back to their automobile. They walked back along Fifth Street, but turned on Second Avenue and decided to take Fourth Street, instead of the Fifth Street Bridge, back to their automobile. What the party believed to be a Fourth Street "bridge," however, was actually an off-ramp from Interstate Highway I-94. There were no sidewalks for pedestrians alongside the off-ramp; rather, there were three signs saying, "Do Not Enter," two signs saying "Pedestrians Prohibited," one sign saying, "Pedestrians, Bicycles, Motorized Bicycles, Non-motorized Traffic Prohibited," and one sign further up the ramp saying "Wrong Way." The four-lane I-94 off-ramp joined Second Avenue next to the end of the two-lane I-394 off-ramp.

The party did not see the warning signs when they came to Fourth Street, and they began crossing over the six lanes of the off-ramps. There was a 32-inch high concrete barrier on the far side of the off-ramp, with a fence running along the top of the barrier for approximately 30 feet. Kevin LePage ran to the edge of the concrete barrier, approximately 10 feet past the point where the fence ended, and jumped over the barrier without looking. He fell approximately 30 feet to the road below and died as a result of the fall.

Kevin's widow, Harriet LePage, sued the state and another defendant,[1] alleging that they had constructed the Fourth Street "bridge" in a careless, reckless and negligent manner by failing to provide a sidewalk and adequate retaining devices, signs, and lighting.

The state moved for summary judgment, arguing that it owed no duty to Kevin LePage because he was a trespasser. The district court denied the state's motion, but granted a later motion for summary judgment based on a conclusion that the state was entitled to vicarious official immunity.


Our standard of review on appeal from a summary judgment is limited to determining whether there are any genuine issues of material fact and whether the district court erred in applying the law. Zacharias v. Minnesota Dep't of Natural Resources, 506 N.W.2d 313, 316 (Minn. App. 1993), review denied (Minn. Nov. 16, 1993). We review the evidence in the light most favorable to the non-moving party. Id. We need not defer to the trial court's decision on a question of law. Id.

I. Trespass

The state argues that it owed LePage no duty of care because LePage was a trespasser on the I-94 off-ramp. The existence of a legal duty "is a question of law for the court to decide." Id. at 319 (citing Larson v. Larson, 373 N.W.2d 287, 289 (Minn. 1985)).

"Generally, a landowner does not owe a duty to a trespasser." Doe v. Brainerd Int'l Raceway, Inc., 533 N.W.2d 617, 621 (Minn. 1995) (citing Hanson v. Bailey, 249 Minn. 495, 500, 83 N.W.2d 252, 257 (1957); Restatement (Second) of Torts § 333 (1965)). A trespasser is "one who enters or remains on the premises without the express or implied consent of the possessor of land." Rieger v. Zackoski, 321 N.W.2d 16, 20 (Minn. 1982). LePage was a trespasser on the I-94 off-ramp because the state did not consent to his use of the off-ramp; in fact, pursuant to its statutory authority, the state had expressly prohibited pedestrians from using the ramp. See Minn. Stat. § 169.305, subd. 1 (1996) (authorizing state to prohibit use of controlled access highway). This prohibition was apparent by the warning signs posted at the juncture of the off-ramp and Second Avenue saying, "Do Not Enter," and "Pedestrians Prohibited."

Furthermore, there is no evidence that LePage had the state's implied consent to use the off-ramp. Implied consent may exist where a defendant has misled the plaintiff into believing that he would not be trespassing. For example, in Reider v. City of Spring Lake Park, 480 N.W.2d 662, 667 (Minn. App. 1992), review denied (Minn. Apr. 13, 1992), we concluded that the defendant had misled the plaintiff into believing that a private service drive was a frontage road where there were no signs warning the plaintiff that he was on a private road and where other motorists were "repeatedly misled to believe the road was public." In contrast, here it is undisputed that there were warning signs at the juncture of Second Avenue and the I-94 off-ramp, and there was no evidence that individuals other than LePage and his party believed that the I-94 off-ramp was a bridge intended for pedestrians.

We recognize that even though LePage was a trespasser, there are limited circumstances when a possessor of land may owe a duty to trespassers:

"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" * * * hidden, artificial dangers created or maintained by the landowner.

Sirek by Beaumaster v. State, Dep't of Natural Resources, 496 N.W.2d 807, 810 (Minn. 1993) (quoting Restatement (Second) of Torts § 335) (1965) (emphasis added). But here, despite the fact that all discovery had been completed and the case was ready for trial, LePage presented no evidence to the district court suggesting that trespassers had "constantly intruded" on the I-94 off-ramp. See Steinke v. City of Andover, 525 N.W.2d 173, 177 (Minn. 1994) (finding no evidence to support argument that trespassers constantly intruded on city property where sign clearly indicated that trespassers were not allowed and city had not received any accident reports or complaints involving site). Cf. Reider, 480 N.W.2d at 667 (concluding that defendant had duty to warn trespassers where there was evidence of previous accidents because other motorists believed private road was frontage road).[2]

The district court concluded that there was a genuine issue of material fact whether LePage was a trespasser because there was evidence that LePage did not know that he should not be on the off-ramp. Intent to trespass, however, is not necessary for a trespass. See Restatement of Torts (Second) § 164 (stating that one is a trespasser "although he acts under a mistaken belief of law or fact, however reasonable, not induced by the conduct of the possessor" that he has the possessor's consent or some other privilege to be on the land).[3]

II. Vicarious Official Immunity

Although we conclude that the state was entitled to summary judgment based on the fact that LePage was a trespasser, we briefly address the district court's conclusion that the state is entitled to vicarious official immunity.

Since 1976, the state is generally liable for its negligent acts, although limited exceptions exist. Nusbaum v. Blue Earth County, 422 N.W.2d 713, 718 (Minn. 1988). Official immunity is one exception to liability. Official immunity is a common law doctrine, which "involves the kind of discretion which is exercised on an operational rather than a policymaking level, and it requires something more than the performance of

`ministerial' duties." Pletan v. Gaines, 494 N.W.2d 38, 40 (Minn. 1992). Official immunity is intended to protect government officials from a threat of personal liability, which might deter the exercise of discretion and independent action and, consequently, impair effective performance of their duties. Watson by Hanson v. Metropolitan Transit Comm'n, 553 N.W.2d 406, 414 (Minn. 1996). Official immunity applies to individual governmental actors. Janklow v. Minnesota Bd. of Examiners for Nursing Home Administrators, 552 N.W.2d 711, 716 (Minn. 1996).

Official immunity may be extended to government employers by way of the doctrine of "vicarious official immunity." Pletan, 494 N.W.2d. at 42-43. LePage argues that the state is not entitled to vicarious official immunity because no individual defendant was named or identified in this lawsuit. We agree.

We previously rejected a claim by a respondent who argued that the county was not entitled to vicarious official immunity because the respondent had sued the county, not its employees. S.L.D. v. Kranz, 498 N.W.2d 47, 53 n. 5 (Minn. App. 1993). There, we extended vicarious official immunity to the county, "regardless of how respondent pleaded his case." Id.

S.L.D., however, is distinguishable. There, the respondent identified three county employees who made a public policy decision that resulted in injury to the respondent. Although the respondent did not actually name the three county employees as parties to the lawsuit, the court extended immunity to the county, reasoning that

the policy behind extending official immunity to the county in this case remains the same; if the county is subject to liability due to the actions of its employees, this could unduly influence the employees to abandon legitimate public policy choices in the future.

Id. Accord, Watson, 553 N.W.2d at 406 (extending vicarious official immunity to Metropolitan Transit Commission even though bus driver was not party to the lawsuit, where bus driver was identified and where his actions were basis for lawsuit).

Here, on the other hand, LePage did not name or identify any individual state official who had considered the issue of pedestrian safety on the I-94 off-ramp or whose discretionary duties would be deterred or impaired if the state were held liable. The purposes of vicarious liability would not be served by extending the doctrine to the facts of this situation.

The state filed a notice of review and submitted a motion to accept a respondent's reply brief. In light of our ruling in favor of the state on the trespass issue, based on the arguments in the state's initial brief, we see no need to consider a respondent's reply brief.

Affirmed. Motion denied.



Judge Roland C. Amundson

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

[ ]1The district court granted the other defendant's motion for summary judgment, and that defendant is not a party to this appeal.

[ ]2Even if the state were aware that trespassers "constantly intruded" on the I-94 off-ramp, Sirek indicates that "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." 496 N.W.2d at 810. "Generally, whether a condition was hidden depends on whether the condition was visible, not on whether the injured party actually saw the danger." Steinke, 525 N.W.2d at 176-77. Here, it is undisputed that LePage did not even briefly look to see whether there was a sidewalk on the other side of the concrete barrier. Had he looked, he would have seen that there was no sidewalk. Therefore, the absence of a sidewalk was not "hidden."

[ ]3LePage cites Victor v. Sell, 301 Minn. 309, 315, 222 N.W.2d 337, 341 (1974), claiming that the case stands for the proposition that trespass is an intentional tort. In fact, however, Sell cited a provision in the Restatement that requires for trespass an intent to enter. Id. at 340 n. 1 (quoting Restatement (Second) of Torts § 158). There is no dispute that LePage intended to enter the I-94 off-ramp; however, intent to enter is clearly distinguishable from intent to commit a trespass.