may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Terri Coppage, a Trustee for the Heirs and Next of Kin of
Nicheba Terrell Coppage, Nikia LaShawnte Coppage,
Nicos Codera Coppage, and Niarte DeShawn Coppage,
Michael Miller, as trustee for the heirs
and next of kin of Myeka Tierra Coppage,
The City of St. Paul,
defendants and third-party plaintiff,
Robert J. Krings, et al.,
defendant and third-party plaintiff,
defendant and third-party plaintiff,
Terri Coppage, third-party defendant,
Filed March 16, 1999
Ramsey County District Court
File Nos. C0-94-2367 & C9-94-2366
Clayton M. Robinson, Jr., City Attorney, Frank E. Villaume, III, Assistant City Attorney, 550 City Hall and Court House, 15 West Kellogg Blvd., St. Paul, MN 55102 (for respondent City of St. Paul)
Richard M. Schultz, Marshall & Associates, 9501 Lexington Avenue North, Circle Pines, MN 55014 (for respondents Krings)
Tyler Gullickson, Brenda Gullickson, 101 Sycamore Street East, St. Paul, MN 55117-5549 (pro se defendants)
Considered and decided by Anderson, Presiding Judge, Kalitowski, Judge, and Shumaker, Judge.
In a wrongful death action arising out of a house fire in which five children died, the district court granted summary judgment dismissing claims against respondents, a municipality and the prior owners of the house, on the ground that the respondents owed no duty to the decedents and also ruled that a statute of repose barred appellants' claims against the prior owners. We affirm.
One or more members of a gang intentionally set the fire in retaliation against the eldest Coppage child, Andre. Andre had witnessed a murder by gang members and they mistakenly believed that Andre had cooperated with a police investigation of the murder.
Each appellant brought a wrongful death action against respondents City of St. Paul, Robert and Claudette Krings, and Tyler and Brenda Gullickson. Appellants alleged that the city was negligent in permitting the rental of the Coppage residence and in failing to relocate the Coppages so as to avoid gang reprisals; that the Krings, as owners of the property, sold it on a contract for deed without disclosing fire and building code violations; and that the Gullicksons, as contract-for-deed vendees, were negligent in various respects pertaining to the condition of the property. Appellants settled with the Gullicksons, and the district court granted summary judgment dismissing the claims against the city and the Krings. Appellants now appeal from the judgments of dismissal.
The site of the fire was 385 East Lawson Street. Originally a single-family dwelling, the building had been occupied as a triplex since 1940. In 1971, the city's zoning board authorized the owners to use the building as a three-unit apartment building.
The Krings bought the property in 1980. They did some remodeling in 1980 and 1981 but made no alterations to the building after that. At some point, the Krings sold the property on contract for deed to a Mr. Garcia. During Garcia's possession, the city sent to the Krings a list of "work orders" for the correction of various deficiencies in the building. In 1993, the Krings cancelled the Garcia contract and took possession of the property.
On July 3, 1993, the Krings sold 385 East Lawson to the Gullicksons on contract for deed. Before taking possession, the Gullicksons fully inspected the premises and the Krings told them that the building was not certified for occupancy and would be condemned if the items specified on the list of "work orders" were not completed. After signing the contract for deed, the Gullicksons met with a city fire inspector and he gave to them a list of repairs that had to be made before the property could be rented.
A city inspector met Robert Krings and Brenda Gullickson at 385 East Lawson on September 13, 1993. The inspector walked through the premises with the parties, inspecting for code violations. The inspector had no further contact with the Krings, but he sent a letter to the Gullicksons outlining repairs to be done. During the repair period, the inspector inspected the premises at least four times. His last inspection was on December 6, 1993. By that time the code violations had been remedied and he authorized the issuance of a certificate of occupancy.
Terri Coppage and her family began living at 385 East Lawson on October 24, 1993, at first residing with another tenant. By February 1, 1994, the Coppages had moved into their own second-floor apartment. The smoke detector in this apartment was working when the Coppages moved in, but during the second week in February, 1994, it failed to sound an alarm when Ms. Coppage burned some food on the stove. She reported the problem to Brenda Gullickson on several occasions but no repair was made. Neither Ms. Coppage nor anyone else ever reported the smoke detector problem to a city employee or representative.
One of the residents of the Coppage apartment was Andre Coppage, the eldest child. On February 12, 1994, he witnessed a murder by members of a gang. Believing that Andre had cooperated with the ensuing police investigation, some gang members assaulted Andre a few days later and threatened him. He told his mother about the murder and the gang's threats. This frightened Ms. Coppage.
On February 17, 1994, a nurse working for the city health department in a program known as "Housecalls" visited the Coppage residence to perform Mantoux tests on the younger children. Housecalls helps low-income families gain access to medical care and, for families facing eviction, it distributes weekly lists of available housing.
During the nurse's visit, Ms. Coppage told her about the incidents with Andre, stated that she feared for her family's safety, and asked her for help locating a residence outside the Twin Cities. The nurse said that she would talk to some people she knew and would get back to Ms. Coppage. She made no promises, however. Thereafter, the nurse and others, some of whom worked for the city, visited Ms. Coppage and tried to make or to suggest housing contacts for her. While they were doing so, Ms. Coppage continued to look for housing on her own.
The arsonists started the fire at about 9:00 p.m. on February 28, 1994. Ms. Coppage was not at home. Andre was next door. The five younger children were alone in their apartment. By the time any adult became aware of the fire, the smoke and heat were so intense that the children could not be rescued.
Before appellants are entitled to proceed with claims against the City of St. Paul, they must show that the city owed them a special duty beyond that owed to the general public and that the city breached that duty. Hoffert v. Owatonna Inn Towne Motel, 293 Minn. 220, 222, 199 N.W.2d 158, 159-60 (1972). The trial court ruled that appellants failed to produce any evidence of a special duty either with regard to the inspections of 385 East Lawson or to the assistance of the Housecalls representatives in Ms. Coppage's efforts to relocate. The existence of a legal duty is an issue of law for the court to determine. Larson v. Larson, 373 N.W.2d 287, 289 (Minn. 1985). We review determinations of law de novo. Bol v. Cole, 561 N.W.2d 143, 146 (Minn. 1997).
A special duty may arise if a municipality has actual knowledge of a dangerous condition, makes a representation on which a party reasonably relies, or does something that increases a risk of harm; or the duty may be imposed through a statute intended to protect a particular class of persons. Cracraft v. City of St. Louis Park, 279 N.W.2d 801, 806-07 (Minn. 1979). Appellants contend that the city had actual knowledge of dangerous conditions at 385 East Lawson and that the city made representations about relocation on which Ms. Coppage relied.
The city concedes that the smoke detector in the Coppage apartment was not operating at the time of the fire in violation of the fire code; and that the number of second-floor residents violated occupancy load limits. The city contends, however, that it had no actual knowledge of such violations. We hold that the record fails to disclose a genuine fact issue as to actual knowledge of such violations. The last time the city inspector inspected the premises the smoke detector was operating. There is no evidence that he had any knowledge thereafter that it had ceased to operate. The fire occurred after the final inspection. There also is no evidence that the inspector ever knew how many people resided in the upper floor living quarters. If health department employees knew how many people lived there, there is no evidence that they knew that the occupancy load violated a safety code.
The city does not dispute the allegation that there were several deficiencies in the physical structure of the Coppage residence, but contends that none of the deficiencies violated the fire or building codes. The absence of a factual dispute as to physical defects left the district court with a purely legal issue, namely, the applicability of the fire or the building codes to the uncontroverted facts. This presented an issue properly resolvable through summary judgment. Tyler Lumber Co. v. Logan, 293 Minn. 1, 7, 195 N.W.2d 818, 822-23 (1972). The parties supplied the court with the affidavits of two fire inspectors. One stated that the codes applied and the other that they did not. The court made a legal determination that the codes did not apply. The record supports that determination.
Because there is no genuine fact issue as to the city's actual knowledge of certain applicable code violations and because no code applies to the remaining violations, the district court did not err in ruling that the city owed no special duty to the Coppages regarding the inspection or the condition of the building at 385 East Lawson.
The record discloses that the city employees made no promises or representations that they would find alternative housing for the Coppages. Rather, they said they would try to help Ms. Coppage contact people who might be able to assist her. They did so, and Ms. Coppage continued her own search as well. Although in her affidavit for the summary judgment proceedings Ms. Coppage stated that she did not move immediately to a shelter because she was relying on the city to find housing for her, in her deposition she testified that she believed that the children were safe if they remained inside the apartment. The district court could properly consider contradictions in statements in assessing the genuineness of an alleged issue of material fact. Banbury v. Omnitrition Int'l, Inc., 533 N.W.2d 876, 881 (Minn. App. 1995).
Appellants also argue that the city had established a special relationship with the Coppages and that relationship gave rise to a duty of protection. Generally, there is no duty to control the conduct of a third person so as to prevent harm to another. K.L. v. Riverside Med. Ctr., 524 N.W.2d 300, 302 (Minn. App. 1994), review denied (Minn. Feb. 3, 1995). The law recognizes an exception to the general rule if the parties are in a special relationship and the harm is foreseeable. Lundgren v. Fultz, 354 N.W.2d 25, 27 (Minn. 1984). The existence of a legal duty to protect another is a question of law. Donaldson v. YWCA, 539 N.W.2d 789, 792 (Minn. 1995).
In Minnesota, special relationships giving rise to a duty of protection have been found on the part of common carriers, innkeepers, possessors of land held open to the public, and custodians of persons who are unable to protect themselves. Id. The district court ruled that no special relationship existed between Ms. Coppage and the city. There is no evidence to suggest that the efforts of the city's health department representatives created the type of special relationship contemplated by law. The representatives voluntarily attempted to assist Ms. Coppage in finding alternative housing. They promised nothing and Ms. Coppage knew that they had made no promises. That was the extent of the relationship. The city did not assume the role of custodian nor was Ms. Coppage unable to protect herself. In fact, she rejected obvious sources of protection, declining to talk to the police or to impose on relatives who could have assisted. The district court did not err in determining as a matter of law that the city had no special duty toward the Coppages.
As a general rule, a prior owner of real estate is not liable to a buyer or a third person for injury caused by the condition of the property. Carlson v. Hampl, 284 Minn. 85, 87, 169 N.W.2d 56, 57 (1969). Liability will attach, however, if the prior owner knows of or conceals an unreasonably dangerous condition and has reason to believe that the buyer will not discover the condition. Friberg v. Fagen, 404 N.W.2d 400, 402 (Minn. App. 1987). Such liability ceases, however, when the buyer has a reasonable opportunity to discover the condition and to take precautions. Id. The Gullicksons bought the property in July 1993 and owned it continuously through February 28, 1994, the date of the fire. In the interim, they were involved in several city inspections and in various repairs of deficiencies. The Gullicksons clearly had an ample opportunity to discover all defects and to take precautions. One precaution available to them was to decline to rent the property until it had been made suitable for occupancy. The court did not err in ruling that the Krings had no legal duty toward the Coppage family.
The district court also ruled that appellants' claims against the Krings respecting improvements that the Krings made to the premises are barred by Minn. Stat. § 541.051 (1998). That statute provides in part that no action for wrongful death arising out of defects in improvements to real estate shall "accrue more than ten years after substantial completion of the construction." It is uncontroverted that the Krings' installation of improvements occurred more than ten years before the fire. Therefore, the district court properly applied the statute of respose.