This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. §480A.08, subd. 3 (1998).





Christopher A. Anderson, a minor, by

Tammy Anderson, his Mother and Natural

Guardian; and Tammy Anderson, individually,



Independent School District No. 891,


Filed March 9, 1999


Anderson, Judge

Yellow Medicine County District Court

File No. CX-97-104

James S. Ballentine, Mark H. Gruesner, Schwebel, Goetz & Sieben, 5120 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402-2246 (for respondents)

Shamus P. O'Meara, Teresa M. Thompson, Johnson & Condon, P.A., Financial Plaza, 7235 Ohms Lane, Minneapolis, MN 55439-2152 (for appellant)

Considered and decided by Anderson, Presiding Judge, Kalitowski, Judge, and Shumaker, Judge.



Appellant challenges the district court's denial of its motion for summary judgment. Based on the application of municipal recreational immunity, we reverse.


Respondents, Tammy Anderson and her son, Christopher Anderson, filed a negligence suit against appellant, Independent School District No. 891. Christopher Anderson, then 14 years old, sustained a broken arm when he lost control during a youth basketball game and hit an unpadded block wall on appellant's premises. The district court rejected appellant's summary judgment motion based on either recreational or discretionary immunity. The court also rejected appellant's alternative theories that Christopher assumed the risk of his injury and that the condition of the wall was an open and obvious danger, either of which could have also barred recovery.


Generally, an order denying a motion for summary judgment is not appealable. An exception to this rule exists when the unsuccessful motion is based on governmental immunity from suit. Anderson v. City of Hopkins, 393 N.W.2d 363, 364 (Minn. 1986). The Minnesota Supreme Court has recognized that, if the government is entitled to immunity, it "should not be forced to endure the expense and delay of proceeding to trial." McGowan v. Our Savior's Lutheran Church, 527 N.W.2d 830, 832 (Minn. 1995) (noting immunity "`is effectively lost if a case is erroneously permitted to go to trial'") (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 2815-16 (1985)).

On appeal from summary judgment, a reviewing court must determine whether the district court erred in its application of the law and whether there are any genuine issues of material fact. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). In so doing, a reviewing court views "the evidence in the light most favorable to the party against whom judgment was granted." Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

The Minnesota legislature passed the Municipal Tort Liability Act in 1963. The act imposes liability on every municipality for its torts. Minn. Stat. § 466.02 (1998). A school district, such as appellant, is defined as a "municipality" by the act. Minn. Stat. § 466.01, subd. 1 (1998). But the act also enumerates a number of specific exceptions to municipal tort liability, including recreational immunity. Minn. Stat. § 466.03, subd. 6e (1998).

While the district court rejected appellant's immunity claim, the validity of an immunity defense is a question of law, Davis v. Hennepin County, 559 N.W.2d 117, 120 (Minn. App. 1997) (citing Elwood v. County of Rice, 423 N.W.2d 671, 675 (Minn. 1988)), review denied (Minn. May 20, 1997), which this court considers without deference to the decision of the district court. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

The legislature provided an exception in the Tort Liability Act for parks and recreation areas, prohibiting the following claims:

Any 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, as an open area for recreational purpose, 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. The supreme court has explained that, while recreational immunity does not wholly absolve state agencies from liability, "it enables them to treat visitors, in the tort context, as trespassers rather than licensees or invitees." Sirek by Beaumaster v. State, Dept. of Natural Resources, 496 N.W.2d 807, 809 (Minn. 1993) (analyzing recreational immunity from tort liability granted the state and its agencies under Minn. Stat. § 3.736, subd. 3(h) (1992)).

Recreational immunity depends on the duty owed a trespasser. The Minnesota Supreme Court has recognized that the law in trespass cases contrasts sharply with the duty of reasonable care owed by most landowners. Sirek, 496 N.W.2d at 809. In Sirek, the court wrote in a trespass case,

the landowner generally owes no duty at all because "a possessor of land is not liable to trespassers for physical harm caused by his failure to exercise reasonable care to put the land in a condition reasonably safe for their reception, or to carry on his activities so as not to endanger them."

Id. (quoting Restatement (Second) of Torts § 333 (1965)).

There are two standards for determining whether a trespasser can recover against a landowner for damages: the child trespasser standard and the adult trespasser standard. See Hughes v. Quarve & Anderson Co., 338 N.W.2d 422, 424 (Minn. 1983) (discussing the applicability of both standards). A landowner's duty to adult trespassers is determined under Restatement (Second) of Torts § 335 (1965), which has been adopted in Minnesota. See Hanson v. Bailey, 249 Minn. 495, 500, 83 N.W.2d 252, 257 (1957) (adopting the predecessor of section 335). The supreme court adopted Restatement (Second) of Torts § 339 (1965) as the standard for dealing with injuries to trespassing children resulting from dangerous artificial conditions. Generally, section 339 liability imposes a greater burden on the landowner than section 335. See Gimmestad v. Rose Brothers Co., 194 Minn. 531, 261 N.W. 194 (1935) (adopting the predecessor of section 339).

The district court reserved a decision concerning which standard applied to this case, ruling that, under either standard, respondents had demonstrated the existence of genuine issues of material fact. But the courts are charged with deciding which rule of law applies to a particular case. Hughes, 338 N.W.2d at 425. Accordingly, we first turn to which standard applies before deciding whether an issue of material facts exists under that standard.

Appellant argues for application of the adult standard. There is no set age at which a claimant should be denied the benefit of section 339, the child trespasser standard. Id. at 424 (noting section 339 has been applied in a few instances to children as old as 16 or 17 years). In Hughes, the court reiterated the question of whether a child is young enough to qualify for section 339's standard is for determination by the jury, and courts "should not set age limits." Id. at 425. If section 339 is requested and applied by the court, then the claimant must prove a child's youth prohibited discovery of the involved risk. Id. (explaining that inherent in deciding whether a child's youth prohibits discovery of the hazard is whether the claimant is a child). But the party so requesting must provide evidence demonstrating the youth that triggers the application of the child standard.

There is no evidence in the record demonstrating Christopher's youth, or other condition, prevented him from understanding the risk involved in playing basketball and crashing into a wall. See id. (basing application of section 339 on psychological evidence that 16-year-old claimant was very immature and did not operate on same level of maturity as other minors the same age); but see Kukowski v. Wm. Miller Scrap Iron & Metal Co., 353 N.W.2d 638, 643 (Minn. App. 1984) (affirming jury verdict of youthful ignorance based on claimant's testimony he did not realize the danger of his actions). Respondents ask this court to infer from Christopher's age and the claim that he did not see the unpadded wall until it was too late that it was youth that prevented identification of the danger. Yet respondents fail to provide a causal connection between the factors and inference.

The Minnesota Supreme Court has analyzed factual situations similar to the present case. In Sirek, the supreme court determined children accompanied by parents in a state park did not fall within the standard of care of section 339. 496 N.W.2d at 811 (analyzing Minn. Stat. § 3.736, subd. 3(h)); accord Johnson v. Washington County, 518 N.W.2d 594, 599 (Minn. 1994) (applying the same rationale to use of a county park and immunity under Minn. Stat. § 466.03, subd. 6e). The Sirek court explained the imposition of a tort duty on the state "would effectively swallow the immunity" envisioned by the recreation exception. 496 N.W.2d at 811. The court noted children accompanied by adults are "omnipresent" in state parks, and the imposition of liability for ensuing injuries would subject state entities to practically unlimited liability and would require "childproofing" vast areas of state parks. Id. In Johnson, the court extended this rule, noting children do not have to be in direct parental contact, such as the child in Sirek, to fall under section 335, but only need to be under adult supervision. 518 N.W.2d at 599 (applying lower trespasser standard to children age seven and older entering county park swimming pool under adult supervision, but who swam alone).

Sirek and Johnson lead to the conclusion the adult trespasser standard applies. Christopher was accompanied by his father and coaches. Furthermore, Christopher had played basketball in the gymnasium in the past and, immediately prior to playing in the game in which he was injured, had watched a portion of a game in the same gym. The child standard does not apply to dangers that "`may reasonably be expected to be understood and appreciated by any child of an age to be allowed at large.'" Sirek, 496 N.W.2d at 811 (quoting Restatement (Second) of Torts § 339 cmt. j (1965)); accord Schaffer v. Spirit Mountain Recreation Area Auth., 541 N.W.2d 357, 360 (Minn. App. 1995). Christopher Anderson has neither established his age prevented him from understanding the existence of any potential hazardous conditions nor established the unpadded wall constituted a latent condition unrecognizable to a child of his age.

The next issue is whether there are any genuine issues of material fact to be decided under the limited standard of care applicable to this case:

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 serious 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.

Restatement (Second) of Torts, § 335. Respondents bear the burden of establishing that each of section 335's elements has been met in order to defeat a claim of immunity. Martinez v. Minnesota Zoological Gardens, 526 N.W.2d 416, 418 (Minn. App. 1995), review denied (Minn. Mar. 29, 1995).

Appellant argues respondents have failed to establish a genuine issue of material fact as to two of section 335's elements: (1) there is no evidence appellant should have known the condition of the wall was likely to cause death or serious bodily injury as required by subsection (a)(ii); and (2) the allegedly dangerous condition was not hidden as required by subsection (a)(iii).

First, appellant argues respondents have not established appellant had knowledge the condition of the wall and the absence of padding was likely to cause death or serious bodily harm. Both parties acknowledge some ambiguity exists as to the knowledge standard under section 335(a)(ii). The supreme court has explained that "[n]atural conditions are to be expected in a recreational area, and the owner should not be required to patrol the area or to make it safe for those who enter upon it." Green-Glo Turf Farms, Inc. v. State, 347 N.W.2d 491, 494-95 (Minn. 1984). This court originally interpreted this Green-Glo language to require an actual knowledge standard, as opposed to a constructive knowledge standard. See Henry v. State, 406 N.W.2d 608, 611 (Minn. App. 1987), review denied (Minn. Aug. 12, 1987); Lawler v. Soo Line R.R. Co., 424 N.W.2d 313, 317 (Minn. App. 1988), review denied (Aug. 24, 1988). But in 1991, this court altered course and applied a constructive knowledge standard to section 335(a)(ii). Noland v. Soo Line R.R. Co., 474 N.W.2d 4, 6 (Minn. App. 1991), review denied (Minn. Sept. 13, 1991). The supreme court has not since ruled on this issue.

But under either an actual or constructive knowledge standard, the circumstances here do not rise to the level established by section 335. Respondents argue an inference could be drawn from the mere existence of padding elsewhere that appellant understood the wall to be dangerous. See Hughes, 338 N.W.2d at 426 (noting defendant's efforts to keep trespassers out of hazardous area "supports an inference that it knew that the area was dangerous"). But section 335 requires a condition that is likely to cause death or serious bodily harm, "not that serious bodily harm `might' actually result." Johnson v. State, 478 N.W.2d 769, 773 (Minn. App. 1991), review denied (Minn. Feb. 27, 1992). This court has held conditions that satisfy section 335's standard "generally have inherently dangerous propensities, such as a high voltage electrical wire." Id. Under this reasoning, a bare concrete wall could not be expected, constructively or actually, to be understood to be a threat of death or serious bodily harm - unless there was a threat of it falling down on somebody.

Second, Christopher argues, because he did not see the unpadded wall until it was too late, the wall was a hidden condition satisfying subsection (a)(iii). The supreme court has ruled recovery is permitted only where the "condition is `hidden' or otherwise non-obvious." Sirek, 496 N.W.2d at 812. The supreme court has further explained "whether a condition was hidden depends on whether the condition was visible, not on whether the injured party actually saw the danger." Steinke v. City of Andover, 525 N.W.2d 173, 177 (Minn. 1994). A trespasser under section 335 has a duty to be aware of his surroundings. Id. (explaining landowner "`is entitled to assume that trespassers will realize that no preparation has been made for their reception and will, therefore, be on the alert to observe the conditions which exist upon the land.'" quoting Restatement (Second) of Torts § 335 cmt. f).

Appellant argues the condition of unpadded walls was not hidden and Christopher saw the wall prior to the game. Furthermore, appellant emphasizes Christopher has not presented evidence demonstrating the wall was concealed or a brief inspection would not have revealed the condition. Similar to the present case, this court has rejected a claimant's argument that a metal barrel used to cover a water hydrant on a downhill ski slope was a concealed hazard. Schaffer, 541 N.W.2d at 360 (14-year-old injured party testified she did not see barrel before she hit it). The court reiterated a condition is not concealed under section 335 if "`a brief inspection would have revealed the condition.'" Id. (quoting Johnson, 478 N.W.2d at 773 (raised sidewalk joint could have easily been discovered and was not concealed condition)), review denied (Minn. Feb. 27, 1992); see also Watters v. Buckbee Mears Co., 354 N.W.2d 848, 851 (Minn. App. 1984) (vertical drop in dirt hill was not concealed because brief inspection would have revealed it). The bare concrete wall in the present case is far from a hidden hazard and should have been just as obvious to respondent as was any other structural feature of the gymnasium. It is a stretch of imagination to construct a factual scenario where a concrete wall could ever become, by itself and absent any fundamental structural defects, a "hidden" danger in the State of Minnesota.

Appellant is entitled to recreational immunity from the negligence claims in this dispute. Because this court concludes appellant is entitled to recreational immunity, it is unnecessary to reach appellant's arguments regarding (1) discretionary immunity; (2) assumption of the risk; and (3) whether the wall was an open and obvious danger.