This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).





Cory Sorgenfrie,



City of Apple Valley,

Appellant (C5-98-1664),

Defendant (CX-98-1689),

Independent School District No. 196,

Respondent (C5-98-1664),

Appellant (CX-98-1689).

Filed April 27, 1999


Toussaint, Chief Judge

Dakota County District Court

File No. C9979491

Jason Lyle Schmickle, 300 Third Avenue SE, Suite 305, Rochester, MN 55904 (for respondent Cory Sorgenfrie)

Lawrence J. Skoglund, 1000 Northland Plaza, 3800 West 80th Street, Minneapolis, MN 55431-4409 (for Independent School District #196)

Carla J. Heyl, John E. Hennen, 145 University Avenue West, St. Paul, MN 55103-2044 (for City of Apple Valley)

Considered and decided by Toussaint, Chief Judge, Randall, Judge, and Huspeni, Judge.[*]


TOUSSAINT, Chief Judge

The City of Apple Valley and Independent School District No. 196 challenge the district court's denial of their motion for summary judgment based on parks and recreation immunity. Because the claim of Cory Sorgenfrie is based upon the operation of property intended to be used for recreational services and because he would not be entitled to damages as a trespasser, we conclude that immunity exists and we reverse.


On a wet and windy night in August of 1995, respondent Cory Sorgenfrie and others from Rochester John Marshall High School attended a varsity football scrimmage at Apple Valley High School. On occasion, parents and managers had been allowed access to the third level roof of the neighboring Apple Valley Sports Facility to film athletic events. Sorgenfrie had volunteered to videotape the scrimmage for John Marshall High School. This was his first time videotaping at this facility.

After Sorgenfrie inquired where he was to set up his video equipment, a supervisor of the sports facility led him through a locked maintenance room and out onto the second-story roof landing of the sports facility. The supervisor then left. On the second-story roof stood a metal ladder, the only means of access to the third-story roof. After hearing other voices atop the roof, Sorgenfrie contemplated how he was going to climb the ladder with his strapless camera case and tripod. Although the ladder and rungs were damp from mist, Sorgenfrie began to climb the ladder. As he was climbing, neither his hands nor his feet slipped. However, as he reached the top of the ladder and placed his hand on the roof, his right hand slipped and he fell approximately 10 to 12 feet.

This third-story roof was not intended to be used as an observation platform when the sports facility was constructed. However, use of the roof had been permitted for observing and taping games for several years. At some point, the arena manager had concerns about allowing young people and students on the roof because getting there required going through a mechanical area. Nonetheless, permission was given to use this area to videotape the football games.

After discovery, the appellants moved for summary judgment. That motion was denied. They now appeal.


On appeal from summary judgment, this court reviews whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). A municipality is entitled to immediate review of an order rejecting an immunity claim. McGovern v. City of Minneapolis, 475 N.W.2d 71, 72-73 (Minn. 1991). De novo review is appropriate for issues of municipal statutory immunity. Landview Landscaping, Inc. v. Minnehaha Creek Watershed Dist., 569 N.W.2d 237, 240 (Minn. App. 1997), review denied (Minn. Dec. 22, 1997).

Generally, a municipality is liable for its torts. Minn. Stat. § 466.02 (1998). The parks and recreation exception, however, renders a municipality immune from liability in certain limited situations. Minn. Stat § 466.03, subd. 6e (1998). Under this exception, a municipality is immune 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, as an open area for recreational purposes, or for the provision of recreational services, or from any claim based on the clearing of land, removal of refuse, and creation of trails or paths without artificial surfaces, if the claim arises from a loss incurred by a user of park and recreation property or services.

Id. The trespasser exception to this provision states: "Nothing in this subdivision limits the liability of a municipality for conduct that would entitle a trespasser to damages against a private person." Id.

It is undisputed that appellants are municipalities and they own, operate, and maintain the sports facility at issue. The first issue is whether the roof is property in itself, as Sorgenfrie suggests, or whether it is included as part of the sports facility. The district court ruled that the appellants were not entitled to immunity because the roof of the sports facility was not intended to be used as a park, as an open area for recreational purposes, or for the provision of recreational services. Appellants argue that the district court erred in applying the park and recreation immunity statute because the sports facility itself was intended and permitted to be used for the provision of recreational services. We agree.

The sports facility is the property at issue here, not the roof. The roof is not property in itself, but is part of the sports facility as a whole. The plain language of the statute is not ambiguous. It is perfectly clear that the property itself is to be considered, not the individual portions of the property used for the provision of recreational services. The statute does not require that parts of the property be officially designated as recreational. Merchlewitz v. Midwest 4 Wheel Drive Ass'n, 587 N.W.2d 652, 655 (Minn. App. 1999). Giving effect to the plain language of the statute, the sports facility, including the roof, is property within the purview of Minn. Stat. § 466.03, subd. 6e. The facility was unquestionably intended and permitted to be used for the provision of recreational services. Thus, the appellants are immune from liability under Minn. Stat. § 466.03, subd. 6e.

The only exception to the rule of immunity is that the municipality owes the same duty to recreational users of its facilities that a private person owes to trespassers. Minn. Stat. § 466.03, subd. 6e. Minnesota's trespasser standard follows Section 335 of the Restatement (Second) of Torts. 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 maintained, 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 (1965). The injured party has the burden of establishing that each of the elements of section 335 has been met. Martinez v. Minnesota Zoological Gardens, 526 N.W.2d 416, 418 (Minn. App. 1995), review denied (Minn. Mar. 29, 1995).

The threshold inquiry for the application of § 335 is whether trespassers constantly intrude upon a limited area of the land, namely the roof of the ice arena. Sorgenfrie, bearing the burden of proof, stated in his brief that very few people were allowed on the roof. Although some parents and managers were allowed access to the roof, it was not easily accessible to the public. Anyone allowed on the roof was led there by an employee. Trespassers did not constantly intrude upon this area.

Notwithstanding the threshold inquiry, there is no question that the appellants maintained the ladder upon which Sorgenfrie was injured. Although Sorgenfrie argues that a landowner need only have constructive knowledge of the danger to the trespasser, a landowner must have actual knowledge of such a condition. Lundstrom v. Apple Valley, 587 N.W.2d 517, 520 (Minn. App. 1998); Cobb v. State, Dep't of Natural Resources, 441 N.W.2d 839, 841 (Minn. App. 1989).

There was no evidence presented that the ladder was likely to cause serious bodily harm. Nor was there any evidence that the appellants knew the ladder was likely to cause such harm. There were no prior reported injuries involving this or any other ladder at the sports facility. Furthermore, on the night Sorgenfrie was injured, there were other individuals atop the roof. The simple fact that the ladder was in place, coupled with the appellants' desire that no one other than maintenance personnel have access to the roof via this ladder, does not amount to proving that appellants knew the ladder was likely to cause serious bodily harm.

Additionally, the ladder was not a hidden danger. "The test is not whether the injured party actually saw the danger, but whether it was in fact visible." Martinez, 526 N.W.2d at 418-19 (quoting Munoz v. Applebaum's Food Mkt., Inc., 293 Minn. 433, 434, 196 N.W.2d 921,(1972)). The ladder was visible. So were the weather conditions on that night. A brief inspection by Sorgenfrie would have revealed that the ladder was slippery. See Lundstrom, 587 N.W.2d at 520 (black tape on tennis court was visible and not hidden); Johnson v. State, 478 N.W.2d 769, 773 (Minn. App. 1991), review denied (Minn. Feb. 27, 1992) (raised sidewalk joint was not a concealed condition because it could have easily been discovered). Furthermore, Sorgenfrie knew there was nothing to assist in carrying his equipment to the rooftop and the possible danger associated with such an attempt was not hidden from him. Sorgenfrie has failed to establish that all the elements of the trespasser exception have been met. The city and the school district are entitled to immunity.


[*] Retired judge of the Minnesota Court of Appeals, serving by apointment pursuant to Minn. Const. art. VI, § 10.