This opinion will be unpublished and

may not be cited except as provided by

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




Deborah Pascuzzi,



Phyllis Wilson,


Filed May 18, 1999


Willis, Judge

Hennepin County District Court

File No. 983293

John Harper III, Terrance J. Wagener, Dunkley, Bennett & Christensen, P.A., 701 Fourth Avenue S., Suite 700, Minneapolis, MN 55415 (for appellant)

Thomas S. McEachron, Votel, Anderson & McEachron, 1250 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101 (for respondent)

Considered and decided by Schumacher, Presiding Judge, Lansing, Judge, and Willis, Judge.



Appellant Deborah Pascuzzi challenges adverse summary judgment, claiming the district court erred in dismissing her personal injury claims against respondent Phyllis Wilson. We affirm.


Sometime during June 1995, Wilson orally agreed to lease her lake cabin to Pascuzzi for the month of July for $300. On July 4, 1995, Pascuzzi was injured when she walked onto the cabin's second-story deck, and it collapsed.

Pascuzzi alleges that Wilson was negligent in failing to inspect and maintain the deck and in failing to warn of a dangerous condition. The district court found Pascuzzi "presented no specific evidence about the deck in question that would allow for the reasonable inference that its collapse should have been anticipated" by Wilson. Because Pascuzzi failed to demonstrate that the accident was reasonably foreseeable, the court granted Wilson's motion for summary judgment. This appeal follows.


On appeal from summary judgment, this court asks two questions: (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). In addition, we must view the evidence in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). In a negligence claim, the existence of a duty is a question of law, subject to de novo review. Johnson v. State, 553 N.W.2d 40, 49 (Minn. 1996). This court will affirm a grant of summary judgment if it can be sustained on any ground. Winkler v. Magnuson, 539 N.W.2d 821, 828 (Minn. App. 1995), review denied (Minn. Feb. 13, 1996).


Pascuzzi claims the district court erred in concluding that the collapse of the deck was not reasonably foreseeable and that, therefore, Wilson owed no duty to her. We analyze this case as one involving a landlord and tenant.[1]

At common law, a landlord is not liable to a tenant for damages caused by dangerous conditions existing at the time the premises were leased. Broughton v. Maes, 378 N.W.2d 134, 135 (Minn. App. 1985), review denied (Minn. Feb. 14, 1986). This court has recognized four exceptions to the general rule regarding a landlord's common-law duty, where

(1) there is a hidden dangerous condition on the premises of which the landlord is aware, but the tenant is not; (2) the land is leased for purposes involving admission of the public; (3) the premises are still in control of the landlord; and (4) the landlord negligently repairs the premises.

Id. (citing Restatement (Second) of Torts §§ 357-362 (1965); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 63, at 434-46 (5th ed. 1984)); see also Oakland v. Stenlund, 420 N.W.2d 248, 251-52 (Minn. App. 1988) (applying landlord's common-law duty), review denied (Minn. Apr. 20, 1988).

Although courts in other jurisdictions have expanded a landlord's common-law duty beyond these exceptions and require the exercise of reasonable care under the circumstances, the Minnesota Supreme Court has not done so. Broughton, 378 N.W.2d at 135-36. As a result,

a landlord who has not agreed to repair the leased premises has only a duty to warn a tenant of a defective condition if the landlord knows or should know of the danger and if the tenant, exercising due care, would not discover it.

Id. at 136 (citing Johnson v. O'Brien, 258 Minn. 502, 506, 105 N.W.2d 244, 247 (1960)); see also Saturnini v. Rosenblum, 217 Minn. 147, 152, 14 N.W.2d 108, 111 (1944) (stating that, absent express agreement, landlord has no duty to make repairs). But see Wood v. Prudential Ins. Co. of Am., 212 Minn. 551, 556-57, 4 N.W.2d 617, 620 (1942) (cautioning that landlord may assume duty by making repairs).

Pascuzzi argues that, generally, a landowner has a duty to exercise reasonable care to inspect and repair the premises and to warn an entrant of dangerous conditions, citing Peterson v. Balach, 294 Minn. 161, 174, 199 N.W.2d 639, 647 (1972) (involving action for wrongful death of entrant). But the duty owed by a landlord to a tenant differs from that owed by landowners to entrants, and, as we have noted, the Minnesota Supreme Court has not expanded a landlord's common-law duty to require the exercise of reasonable care under the circumstances. Oakland, 420 N.W.2d 251; Broughton, 378 N.W.2d at 135-36.

Pascuzzi also argues Wilson knew or should have known of the dangerous condition because the deck was 30 years old and had never received maintenance or repair. She asserts Wilson had reasonable grounds to suspect that a dangerous condition existed and that "[c]ommon sense would indicate that there would be some deterioration in the structure" after 30 years, citing Murphy v. Barlow Realty Co., 214 Minn. 64, 70, 7 N.W.2d 684, 688 (1943) (involving landlord's liability for building collapse resulting in injuries and death to tenant's employees), overruled by Johnson v. O'Brien, 258 Minn. at 507, 105 N.W.2d at 247 (overruling Murphy to extent Murphy requires actual knowledge of dangerous condition as prerequisite to landlord's liability to tenant).

But in Murphy there was evidence that the defendant knew of the dangerous condition of the building. Id. at 69-70, 7 N.W.2d at 688-89. Here, Pascuzzi has not presented evidence that Wilson knew or should have known of a dangerous condition on the premises, and Wilson did not agree to make repairs. Thus, Wilson owed no duty to Pascuzzi. See Broughton, 378 N.W.2d at 136 (providing that absent agreement to repair leased premises, landlord has only limited duty to warn tenant of dangerous conditions that landlord knew of or should have known of and that tenant would not have discovered in exercise of due care).


Pascuzzi also claims the district court erred in granting Wilson's motion for summary judgment, arguing that there are genuine issues of material fact regarding whether Wilson breached a duty owed to her. But we need not reach this issue because Pascuzzi did not establish that Wilson owed her a duty. See Johnson v. State, 553 N.W.2d at 49 (listing duty as element necessary to maintain claim for negligence); see also Carlisle v. City of Minneapolis, 437 N.W.2d 712, 715 (Minn. App. 1989) ("[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.") (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552 (1986)).

Because there are no genuine issues of material fact regarding the existence of a duty, the district court did not err in granting Wilson's motion for summary judgment.


[1] At oral argument, Wilson's counsel stated that the district court and the parties had agreed to analyze this case as one involving a landowner and entrant. But the record on appeal contains no evidence of such an agreement. And the district court accepted Pascuzzi's allegations regarding the existence of a lease and used, at times, the terms "landlord" and "tenant" in its analysis.