This opinion will be unpublished and

may not be cited except as provided by

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




Greg Peterson, et al.,



City of Blooming Prairie,


Jackson Landscape,


Filed May 5, 1998


Mulally, Judge*

Steele County District Court

File No. C9-96-803

Ross L. Leuning, Walbran, Walbran, Furness & Leuning, 140 East Main Street, Post Office Box 273, Owatonna, MN 55060 (for appellants)

Patricia Y. Beety, Carla J. Heyl, 145 University Avenue West, St. Paul, MN 55103-2044 (for respondent)

Considered and decided by Randall, Presiding Judge, Willis, Judge, and Mulally, Judge.

*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. Art. VI, § 10.



Greg and Linda Peterson, on behalf of their daughter, sued respondent City of Blooming Prairie[1] for negligence after their daughter was injured when she fell or jumped from a piece of playground equipment. The Petersons appeal from the district court's grant of summary judgment to the city based on recreational use immunity, Minn. Stat. § 466.03, subd. 6(e) (1996). We affirm.


Summary judgment is proper when no material issues of fact exist and one party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. When immunity from suit is raised as a defense, allegations of negligence generally are legal, not factual questions. Berg v. City of St. Paul, 414 N.W.2d 204, 207 (Minn. App. 1987); Gonzales v. Hollins, 386 N.W.2d 842, 845 (Minn. App. 1986).

A municipality is entitled to recreational use immunity from

[a]ny claim based upon the construction, operation, or maintenance of any property owned or leased by the municipality that is intended or permitted to be used as a park * * * if the claim arises from a loss incurred by a user of park and recreation property or services. Nothing in this subdivision limits the liability of a municipality for conduct that would entitle a trespasser to damages against a private person.

Minn. Stat. § 466.03, subd. 6(e) (1996). Thus, the municipality owes a park user the same duty that a private person or landowner would owe to a trespasser. Id.

Under this standard, a landowner is liable for failure to warn of an artificial condition which he has created or maintained only if (1) the artificial condition is likely to cause death or serious bodily harm; (2) the landowner has actual knowledge of that danger; and (3) the danger is concealed or hidden from the trespasser. Restatement (Second) of Torts § 355 (1965); see also Sirek v. State, 496 N.W.2d 807, 809-10 (Minn. 1993); Cobb v. State, 441 N.W.2d 839, 841 (Minn. App. 1989).

The Petersons argue that they established a genuine issue of material fact regarding the depth of the bark. They claim the bark was only two inches deep where their daughter landed and point to the Consumer Product Safety Commission handbook, which states that shock absorbing surface material is necessary to prevent "serious injury" and recommends that bark be installed at a depth of no less than seven inches compressed or twelve inches uncompressed. The Petersons note that the installation instructions from the playground equipment manufacturer recommended 12 inches of bark and warned that "unacceptable surfaces are a major contributor to playground injuries because of the surface's hard, unyielding characteristics."

However, the issue is not whether the depth of the material was sufficient to prevent injuries, but whether the artificial condition created by the city was likely to cause death or serious bodily harm. There must be more than a "remote possibility" of death or serious bodily harm, and conditions found to satisfy this requirement generally have "inherently dangerous propensities, such as a high voltage electric wire." Johnson v. State, 478 N.W.2d at 769, 773 (Minn. App. 1991), review denied (Minn. Feb. 27, 1992). Because the conditions which allegedly caused the injuries in this case, whether larger pieces of bark or an insufficient depth of bark, are not inherently dangerous, they are not the types of conditions likely to cause death or serious bodily harm. See id. (raised sidewalk joint not condition likely to cause death or serious bodily harm).

Even if the condition in this case could be considered inherently dangerous, there is no evidence that the city had actual knowledge of this fact. While members of the "Friends of the Park" committee picked out some of the larger pieces of bark soon after it was installed, they did so for aesthetic reasons and to prevent children from possibly throwing the larger pieces. In addition, there is no evidence that the committee, which was formed to make the park and playground safer, knowingly chose a surface material likely to cause death or serious bodily harm. Finally, even if there were only two inches of bark, there is no evidence that the city knew of this fact: Barb Nielson, a Friends of the Park member, testified by affidavit that twelve inches of bark and four inches of pea rock were installed around the new playground equipment; the city had no reports of accidents or problems after the bark was installed; and the park was not due for inspection or maintenance by city workers until the month after the accident. Thus, there is no evidence that the city had actual knowledge that the condition of the surface material was likely to cause death or serious bodily harm to those using the playground equipment.

Finally, a landowner owes a duty to trespassers only in the event of concealed dangers: "when a brief inspection would have revealed the condition, it is not concealed." Johnson, 478 N.W.2d at 773. In this case, the Petersons' daughter, who was 13 years old at the time of the accident, testified by deposition that she knew the playground surface consisted of bark, that she was aware of the larger pieces, that she used the equipment at least once before she jumped, and that she had seen other children fall at other times on other playgrounds. Thus, contrary to the Petersons' assertion, the condition of the surface material was open and obvious to their daughter, who had some experience not only on this playground but also had observed the consequences of falling or jumping from playground equipment on other playgrounds. Cf. Toetschinger v. Ihnot, 312 Minn. 59, 69, 250 N.W.2d 204, 210 (1977) ("degree of care expected of a child is that commensurate with the age, mental capacity, and understanding of children of similar age acting under similar circumstances"). Under these circumstances, any danger presented by the condition of the bark was not concealed.

The grant of summary judgment to the city is affirmed.


[1] Appellants also sued defendant Jackson Landscaping, the company that installed the bark and pea rock around the playground equipment. Partial summary judgment was granted to the city, and appellants' claims against Jackson Landscaping remain. Jackson Landscaping is not participating in this appeal.