may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
City of Bloomington,
Filed December 8, 1998
Hennepin County District Court
File No. PI975165
Paul D. Reuvers, John Iverson, Erstad & Riemer, P.A., 1000 Northland Plaza, 3800 West 80th Street, Bloomington, MN 55431 (for respondent)
Considered and decided by Peterson, Presiding Judge, Randall, Judge, and Foley, Judge.[*]
This appeal is from a summary judgment in a negligence action. Appellant Lorna Zacharias challenges the district court's determination that respondent City of Bloomington was immune from suit under the parks and recreational immunity statute. We affirm.
The rower and an instruction sheet for it were in a brown paper bag. The instructions contained explanations of and illustrations showing various ways to use the rower. The instructions stated that it was "important" to "[p]lace the instep of your foot firmly on the plastic part of the pedal." The instructions also provided: "Wear appropriate non-skid sneakers so that your foot does not slip from pedal"; and "You are advised that the spring should not be stretched beyond 3'6"."
Because neither the city nor the community center wanted to keep the rower, Karen Beese, the community center's coordinator, decided to offer the rower to members of the community center's senior exercise class. Zacharias and another member of the exercise class were in the exercise area when Beese arrived with the rower. Beese took the rower out of the paper bag and asked Zacharias and the other member if they wanted to try it. Beese did not provide them with any instruction on how to use the rower, and she did not show them the instruction sheet included with the rower.
Zacharias tried the rower. She testified that she placed her feet on the pedals and under the stirrups and pushed her feet in as tightly as she could; she pulled the rower's handle up to her chest level and then a little higher; and as she went to pull the handle even higher, she heard a loud snap, and the rower struck her in her right eye. Zacharias did not know what caused the accident, and no one witnessed the accident. As a result of the accident, Zacharias lost the sight in her right eye.
Zacharias testified that she understood how a spring works, specifically, that the more one pulls, the more tension is created. Zacharias also testified that she understood the importance of placing one's feet securely on the pedals because, otherwise, one's feet could slip off of the rower.
summary 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).
Whether a government entity is immune from suit is a question of law subject to de novo review. Burns v. State, 570 N.W.2d 17, 19 (Minn. App. 1997). A municipality is immune from liability for tort claims
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, as an open area for recreational purposes, or for the provision of recreational services * * * 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. 6e (1996).
Zacharias does not dispute that Minn. Stat. § 466.03, subd. 6e, applies to the city's operation of the community center. Zacharias argues that the city is liable under the exception "for conduct that would entitle a trespasser to damages against a private person." "For purposes of determining liability under that exception, Minnesota has adopted the standard of care owed to a trespasser found in the Restatement (Second) of Torts § 335 (1965)." Martin v. Spirit Mountain Recreation Area Auth., 566 N.W.2d 719, 721 (Minn. 1997).
Section 335 provides:
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 an artificial condition on the land, if
(a) the condition
(i) is one which the possessor has created or maintains and
(ii) is, to his knowledge, likely to cause death or seriously bodily harm to such trespassers and
(iii) is of such a nature that he has reason to believe that such trespassers will not discover it, and
(b) the possessor has failed to exercise reasonable care to warn such trespassers of the condition and the risk involved.
For liability to attach under section 335, a landowner must fail to exercise reasonable care to warn trespassers about hidden, artificial dangers created or maintained by the landowner. Steinke v. City of Andover, 525 N.W.2d 173, 177 (Minn. 1994). The injured party has the burden of proving that all the elements of section 335 have been met in order to defeat immunity. Schaffer v. Spirit Mountain Recreation Area Auth., 541 N.W.2d 357, 360 (Minn. App. 1995).
The city concedes that the rower was an artificial condition. The city argues that Zacharias failed to present evidence showing that the rower was likely to cause death or serious bodily harm.
Conditions found to satisfy [the likely to cause death or serious bodily harm] requirement generally have inherently dangerous propensities, such as a high voltage electrical wire. The Restatement requires the condition to be likely to cause serious bodily harm, not that serious bodily harm "might" actually result. The injury suffered does not define the requirement. Otherwise, any artificial condition "could be" likely to cause death or serious bodily harm under the right circumstances.
Johnson v. State, 478 N.W.2d 769, 773 (Minn. App. 1991) (citation omitted), review denied (Minn. Feb. 27, 1992).
The record does not contain evidence indicating that the rower was constructed in a manner making it likely to cause death or serious bodily injury. There was no evidence that the spring, if it recoiled, was likely to recoil with sufficient force to result in the rower causing death or serious bodily injury or that the spring was otherwise likely to cause death or serious bodily injury. Nor was there evidence that the handle, foot pedals, or stirrups were constructed in a manner or of a material that made them likely to cause death or serious bodily injury under any circumstances. The evidence was insufficient to establish that the rower was likely to cause death or serious bodily injury. See Jamieson v. Woodward & Lothrop, 247 F.2d 23, 29 (D.C. Cir. 1957) (reasonably foreseeable injury from accident while using rubber rope exerciser was a minor injury, such as, "a cut lip, bloody nose, or black eye, at the most"; detached retina was not reasonably foreseeable injury resulting from recoil of rope).
The city also contends that even if the rower were likely to cause death or serious injury, the city did not have knowledge that it was likely to cause such injury. To prove knowledge under section 335, it is sufficient to show "that the landowner realized or should have realized the potential danger." Noland v. Soo Line R.R., 474 N.W.2d 4, 6 (Minn. App. 1991), review denied (Minn. Sept. 13, 1991).
Zacharias argues that the instructions included with the rower should have put the city on notice that the rower was likely to cause death or serious bodily injury. But the instructions contain general information regarding proper use of the rower and do not indicate any likelihood of death or serious bodily injury resulting from use of the rower. The evidence was insufficient to prove knowledge.
The parties dispute whether sufficient evidence was presented to establish that the rower's dangerousness was hidden. "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 177.
Zacharias argues that the rower was dangerous because of the potential for the spring to recoil. Courts in other jurisdictions have held that the danger of injury from an elastic rope recoiling is an obvious danger.
[I]t is common knowledge that the distance and force of the recoil of an elastic are controlled by and proportional to the amount of tension placed upon it. If an eye, mouth or nose is in the path of the recoil it may be struck a blow. The force of the blow is determined by the tension placed upon the elastic by the person who stretched it, in this case the [injured party] herself. These facts concerning impact and extent of recoil are obvious to everyone * * *. * * * It is equally obvious that when a recoiling object strikes one in its path it will do some harm, in the ordinary case a slight bruise but in the highly unusual case a more serious injury.
Jamieson, 247 F.2d at 29-30 (affirming summary judgment in favor of defendant); accord Van Dettum v. K-Mart Corp., 479 N.E.2d 1104, 1106 (Ill. App. 1985) (any danger posed by "the propensity of an unsecured end of a stretched piece of elastic to snap back to a secured point" was obvious). We conclude that the potential danger from the spring recoiling was an obvious danger as a matter of law.
The injured party must prove all the elements of section 335 to defeat immunity. Schaffer, 541 N.W.2d at 360. Here, the evidence was insufficient to establish all of the elements of Restatement (Second) of Torts § 335. The district court properly granted summary judgment because the city was immune from suit under Minn. Stat. § 466.03, subd. 6e.
In light of our conclusion that the city was immune from suit under Minn. Stat. § 466.03, subd. 6e, we do not reach the remaining issues raised by the parties on appeal.
[*]Retired judge of the Minnesota Court of Appeals, serving by apointment pursuant to Minn. Const. art. VI, § 10.