This opinion will be unpublished and

may not be cited except as provided by

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




Wendy Brown, et al.,



Bradley Real Estate Trust, et al.,


Filed December 22, 1998


Peterson, Judge

Hennepin County District Court

File No. PI979123

David H. Schultz, Joseph M. Crosby, Crosby & Grimshaw, 701 Fourth Avenue South, Suite 300, Minneapolis, MN 55415 (for appellants)

D. Scott Ballou, Leo I. Brisbois, Stich, Angell, Kreidler, Brownson & Ballou, P.A., The Crossings, Suite 120, 250 Second Avenue South, Minneapolis, MN 55401 (for respondents)

Considered and decided by Schumacher, Presiding Judge, Peterson, Judge, and Harten Judge.



On appeal from a summary judgment in a personal injury action, appellants Wendy and Robert Brown challenge the district court's conclusion that as a matter of law, the lessor under the relevant lease agreement owed no duty to maintain the location where Wendy Brown fell. We reverse.


North Memorial Medical Center, Inc. (North Memorial), and respondent Bradley Real Estate Trust (Bradley) entered into a lease agreement, under which North Memorial leased office space in the Terrace Mall from Bradley. The lease agreement described the leased premises as follows:

Lessor hereby leases to the Lessee and the Lessee hereby leases from Lessor, upon and subject to the terms and provisions of this Lease, the premises described as approximately 32,000 square feet of usable area, designated as Suite 110, as outlined on the plan set forth in Exhibits A and A-1 hereto (the "demised premises"), constituting a part of Terrace Center, located in Robbinsdale, Minnesota (the "Shopping Center"), whose legal description is as set forth in Exhibit B hereto.

Exhibit B set forth the following legal description:

Parcel 1:

Lots 1 and 2, Block 1, Robbinsdale Mall Addition.

Parcel 2:

All right and interest of Robbinsdale Mall Associates, Ltd. under the Reciprocal Construction, Operating and Easement Agreement dated October 18, 1979, * * * covering the reciprocal and non-exclusive easements for ingress and egress, parking of vehicles, passage and accommodation of pedestrians, the installation, maintenance and repair of utility lines and mains, the construction, reconstruction and maintenance of common foundations, footings, supports, canopies, roof and signs over the common areas located on Lot 3, Block 1, Robbinsdale Mall Addition granted as appurtenances to Parcel 1.

Montgomery Ward & Company, Inc., owned the part of the Terrace Mall, including parking facilities, located on Lot 3, Block 1, Robbinsdale Mall Addition. Under the easement agreement, as amended May 19, 1993, Montgomery Ward was responsible for maintaining the parking facility where Wendy Brown fell.

The North Memorial - Bradley lease provided as follows regarding maintenance of common areas:

Section 5.1. Lessor agrees that Lessee shall during the term hereof, with others, have the non-exclusive right to use the parking facilities of the Shopping Center, shown on the plan attached as Exhibit A, for the accommodation and parking of such automobiles of Lessee, its officers, agents and employees, and its customers while shopping in the Shopping Center * * *.

Lessee agrees to cause its employees to park their cars only on such areas as Lessor may from time to time designate as employee parking areas.

* * * *

Section 5.2. With respect to any enclosed malls and other common facilities, the same shall be maintained (including lighting) by Lessor in a reasonably neat and clean condition throughout the term of this Lease.

Section 5.3. All costs and expenses of every kind and nature paid or incurred by Lessor or its agents in operating, managing, equipping, policing, lighting, repairing, replacing and maintaining all parking facilities, access roads, sidewalks * * * shall be prorated, and Lessee shall pay to Lessor Lessee's proportionate share * * *. Such costs and expenses shall likewise include (but shall not be limited to) snow removal and sanding costs * * *.

Exhibit A included the parking facilities owned by Montgomery Ward.

Wendy Brown fell in a parking facility located at the Terrace Mall and owned by Montgomery Ward. When she fell, Wendy Brown was walking to a shuttle bus pick-up area, planning to take a shuttle bus to North Memorial Medical Center's main campus area. Because of limited parking at the main campus, some North Memorial employees parked at the Terrace Mall and took a shuttle bus to the main campus. In Brown's subsequent suit against respondents, the district court granted Bradley's motion for summary judgment, ruling that because Montgomery Ward owned the parking lot where Wendy Brown fell, Bradley had no duty to maintain that area.


On appeal from a summary judgment, this court must review the record to 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 rules of contract construction apply when construing a lease agreement. See Medinvest Co. v. Methodist Hosp., 359 N.W.2d 714, 716 (Minn. App. 1984) (applying rules of contract construction in construing lease agreement), review denied (Minn. Mar. 21, 1985). "Determination of whether or not the language of a contract is ambiguous and the construction and effect of an unambiguous contract are questions of law." Brown v. Weeres Indus., Inc., 375 N.W.2d 64, 66 (Minn. App. 1985), review denied (Minn. Dec. 13, 1985). A reviewing court is not bound by and need not defer to a district court's decision on questions of law. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

"The court's role in interpreting a contract is to ascertain and give effect to the intention of the parties." Metropolitan Sports Facilities Comm'n v. General Mills, Inc., 470 N.W.2d 118, 122-23 (Minn. 1991). When a "contract is unambiguous, the court must deduce the parties' intent from the language used." Id. at 123.

Bradley argues that Minnesota law does not impose a duty on a lessor to maintain property owned and possessed by a third party, and, therefore, Bradley owed no duty to maintain the parking facilities owned by Montgomery Ward. However,

Minnesota recognizes that, even though there is no duty in the first instance, if a person voluntarily assumes a duty, the duty must be performed with reasonable care or the person will be liable for damages. Liability for voluntarily assuming a duty arises only if this conduct "leads others to rely on such assumption of duty and to refrain from taking other and more direct action to protect themselves * * *."

Williams v. Harris, 518 N.W.2d 864, 868 (Minn. App. 1994) (citation omitted) (quoting Abresch v. Northwestern Bell Tel. Co., 246 Minn. 408, 416, 75 N.W.2d 206, 211-12 (1956)), review denied (Minn. Sept. 28, 1994). "A contract is an agreement between parties whereby one of them acquires a right to an act by the other; and the other assumes an obligation to perform the act." In re Petition of Anderson, 565 N.W.2d 461, 464 (Minn. App. 1997) (quoting Despatch Oven Co. v. Rauenhorst, 229 Minn. 436, 442, 40 N.W.2d 73, 78 (1949)); see also Huver by Huver v. Opatz, 392 N.W.2d 237, 240 (Minn. 1986) (city can contractually assume duty to maintain road within city limits that is part of state highway system).

The lease agreement's legal property description included Bradley's easement to use parking facilities at the Terrace Mall owned by Montgomery Ward. The description of common facilities in section 5 of the lease agreement included the parking facilities owned by Montgomery Ward. Specifically, section 5.1 granted North Memorial "the non-exclusive right to use the parking facilities of the Shopping Center, shown on the plan attached as Exhibit A," and exhibit A included the parking facilities owned by Montgomery Ward. Under section 5.2, Bradley was obligated to maintain common facilities "in a reasonably neat and clean condition." For purposes of maintenance, the lease agreement did not distinguish between common facilities owned by Montgomery Ward and other common facilities owned by Bradley itself. Under the unambiguous language of the lease agreement, Bradley assumed a duty to North Memorial to maintain common facilities, including those owned by Montgomery Ward.

Under the amended easement agreement, Montgomery Ward was obligated to maintain the parking facilities that it owned. North Memorial, however, was not a party to that agreement. Absent language in the lease agreement incorporating Montgomery Ward's duty to maintain its facilities into the lease agreement, as between North Memorial and Bradley, Bradley assumed a duty to maintain the parking facilities owned by Montgomery Ward.

Bradley also argues that it did not owe a duty to Wendy Brown because the lease only authorized parking for North Memorial employees who worked at the Terrace Mall. The clause relied on by Bradley to support this argument restricted North Memorial's use of the "demised premises" to use "only for the purpose of general office and medical clinic." The lease defined demised premises as suite 110, the actual office space itself. For purposes of parking, the lease did not distinguish between North Memorial employees who worked at the Terrace Mall and other North Memorial employees. The lease agreement granted the right to use the Terrace Mall's parking facilities for "parking of such automobiles of Lessee, its officers, agents and employees." The clause relied on by Bradley applied only to the office space itself and did not restrict North Memorial's use of parking facilities.

At oral argument, Bradley claimed that it was entitled to summary judgment because Wendy Brown was not employed by the lessee, but rather by a different North Memorial entity. Bradley did not raise this issue before the district court. An appellate court generally may consider only those issues that the record shows were presented to and considered by the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). A party cannot present an issue decided by the district court under a new theory on appeal. Id. Because Bradley did not raise the issue of the identity of Wendy Brown's employer before the district court, we will not consider the issue on appeal. See Bliss v. Stevens, 544 N.W.2d 50, 54 (Minn. App. 1996) (declining to consider existence of agency relationship when party failed to raise issue before district court).