This opinion will be unpublished and

may not be cited except as provided by

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




William J. Elvester, et al.,


Brian J. Nelson, et al.,



Robert North and David North,

individually and as partners

in a property known as

Newport Center,


Filed August 31, 1999

Reversed and remanded

Halbrooks, Judge

Washington County District Court

File No. C7-98-995

Richard T. Kavaney, Vincent J. Courtney, Kavaney & Associates, Ltd., 700 Saint Paul Building, 6 West Fifth Street, St. Paul, MN 55102 (for appellants)

Mark A. Pilney, Lars C. Erickson, Reding & Pilney, 814 Degree of Honor Building, 325 Cedar Street, St. Paul, MN 55101 (for respondents)

Considered and decided by Halbrooks, Presiding Judge, Schumacher, Judge, and Amundson, Judge.



Appellants seek review of the district court's summary judgment dismissing their trespass action as time-barred. Appellants argue the two-year statute of limitations under Minn. Stat. § 541.051 (1998) does not apply because their injuries did not arise from a "defective and unsafe condition." Because we conclude a genuine issue of material fact exists as to whether the parking lot was "defective and unsafe," we reverse and remand.


Appellants William J. and Kimberly A. Elvester rented the property at 806 High Street, Newport, Minnesota, in February 1993. They later purchased the property on a contract for deed in June 1993. Respondents Robert and David North own and operate the Newport Center. In November 1993, respondents paved the gravel alley and landscaped area behind the Newport Center. A portion of the paved area abuts appellants' property.

In the winter and spring of 1994, appellants began to notice ice forming in their garage. That summer appellants noticed water running through their garage when it rained. Appellant William Elvester gave deposition testimony that the water appeared every time snow melted and during rainfalls of one-half inch or more. Nevertheless, the source of the water was not discovered until the summer of 1997, when appellants' neighbor, Brian Nelson, followed the water back to respondents' parking lot during a rainfall. Appellant testified the problem is exacerbated after a snowfall because respondents plow the snow from their entire lot to the back property line.

After learning the source of the water, appellant asked his neighbors whether they were interested in joining a lawsuit against respondents. Upon speaking to one of his neighbors, Mr. Voje, appellant learned Voje had complained to respondents about drainage during construction of the parking lot, and, in response, respondents regraded the lot so that water would not drain onto Voje's property.

Appellants commenced the instant action on January 22, 1998, alleging the water discharged onto their property from respondents' parking lot constituted a trespass. Appellants sought damages for reduction in property value and for costs incurred in protecting and repairing their property. Respondents moved for summary judgment. The district court granted summary judgment in favor of respondents, dismissing appellants' complaint with prejudice as time-barred under Minn. Stat. § 541.051, subd. 1 (1998). Appellants made motions for amended findings and for reconsideration, and those motions were denied. This appeal followed.


On appeal from summary judgment, a reviewing court determines whether any genuine issues of material fact exist and whether the district court erred in applying the law. Wartnick v. Moss & Barnett, 490 N.W.2d 108, 112 (Minn. 1992). In making its determinations, "the court must view the evidence in the light most favorable to the nonmoving party." State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 571 (Minn. 1994). No deference need be given to the district court's application of the law. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

Appellants contend the district court erred in determining that their trespass action was governed by the two-year statute of limitations under Minn. Stat. § 541.051, subd. 1 (1998), because their damages do not result from a "defective and unsafe condition" of respondents' parking lot. Minn. Stat. § 541.051, subd. 1, provides in relevant part:

Except where fraud is involved, no action by any person in contract, tort, or otherwise to recover damages for any injury to property, * * * arising out of the defective and unsafe condition of an improvement to real property * * * shall be brought against any person performing or furnishing the design, planning, supervision, materials, or observation of construction or construction of the improvement to real property or against the owner of the real property more than two years after the discovery of the injury * * * .

The term "defective" has been defined for the purposes of section 541.051 as "having a defect or defects; incomplete; faulty." Fiveland v. Bollig & Sons, Inc., 436 N.W.2d 478, 480 (Minn. App. 1989) (quotation omitted), review denied (Minn. Apr. 24, 1989). "Unsafe" may refer to something that presents a risk of bodily injury, and it may also mean "insecure." Griebel v. Andersen Corp., 489 N.W.2d 521, 523 (Minn. 1992). Referring to the phrase "defective and unsafe," the Griebel court noted that the phrase was used "as a collective, with its individual terms often interchanged depending upon the facts or circumstances in which the statute has been invoked." Id. (citations omitted).

In Fiveland, the plaintiff fell into an unguarded and unlighted excavation site. 436 N.W.2d at 479. This court concluded the excavation site was incomplete, and therefore "defective," because it was unguarded and unlighted. Id. at 480. Section 541.051 was held to apply, and the suit was time-barred. Id.

In Griebel, the supreme court held section 541.051 applicable where an installed set of patio doors did not prevent entry of hundreds of cluster flies. 89 N.W.2d at 523. In reaching its conclusion, the court reasoned that one of the primary purposes of windows and doors was to prevent unwanted intruders and a door that failed to do so was insecure, unsafe, and defective. Id.

In a more recent case, this court held spandrel windows were "defective and unsafe" for purposes of section 541.051 where the windows had ceased to be opaque. Metropolitan Life Ins. Co. v. M.A. Mortenson Cos., 545 N.W.2d 394, 400 (Minn. App. 1996), review denied (Minn. May 21, 1996). This court determined that

the fact that light could penetrate what was designed to be impenetrable and illuminate what was designed to be concealed makes the spandrel windows "insecure" or unsafe within the meaning of the statute.


In the instant matter, the district court concluded that

the construction of this lot resulted in water running off onto [appellants'] property and the accumulation of ice on the floor of their garage. The ice accumulation covered one-third to one-half of the garage floor and prevented [appellants] from using the service door. As such, the improvement to [respondents'] property must be considered to be unsafe and defective for purposes of the two year statute of limitations.

In reaching that conclusion, the district court relied in part on Lake City Apartments v. Lund-Martin Co., 417 N.W.2d 704 (Minn. App. 1988), review granted and case remanded, 421 N.W.2d 302 (Minn. 1988). Although Lake City did involve a drainage problem that resulted from grading, the court did not address the issue of whether the improvement was defective and unsafe. See id. at 707. Even if the case could be read to support the notion that the grading constituted a defective and unsafe condition, the complained-of grading in Lake City was an improvement on the property that was itself damaged. Id. at 706.

It is axiomatic that improvements to property are generally not designed to damage the same property. Here the situation is potentially different. It is safe to say there would be little question that the parking lot would be defective and unsafe if it caused water to drain into the Newport Center. But the parking lot caused water to drain onto appellants' property, and appellants argue it did so in accordance with its design.

If the parking lot was designed to divert water onto appellants' property, or with awareness that this result was likely, it cannot reasonably be called "defective and unsafe" because it operates in accordance with its design. Cf. Griebel, 489 N.W.2d at 523 (noting patio doors were defective and unsafe because they did not perform one of their primary purposes--preventing unwanted intrusions); Metropolitan Life, 545 N.W.2d at 400 (holding spandrel windows were defective and unsafe because they did not accomplish what they were designed to accomplish--prevent light transmission). On the other hand, if the parking lot was not designed and graded with an awareness that it would likely divert water onto appellants' property, the lot would be properly seen as "incomplete," lacking a mechanism for proper drainage, and therefore "defective and unsafe." See Fiveland, 436 N.W.2d at 480 (concluding excavation pit was "defective and unsafe" because it lacked guarding and lighting).

The issue then becomes whether appellants have shown a genuine issue of material fact as to whether respondents knew or should have known the parking lot as designed would divert water from their property to appellants' property. In order to show a genuine fact issue for trial, a party opposing summary judgment must present specific admissible facts giving rise to a factual question. Continental Sales & Equip. Co. v. Town of Stuntz, 257 N.W.2d 546, 550 (Minn. 1977). A party may not rely on general speculation as to what evidence could be presented at trial. Fownes v. Hubbard Broadcasting, Inc., 302 Minn. 471, 474, 225 N.W.2d 534, 536 (1975).

In the instant case, appellants submitted evidence showing that during construction, respondents regraded the parking lot at the request of another neighbor to prevent drainage onto that person's property. They presented evidence that respondents plow their snow to the back of the parking lot. They also provided evidence that respondents were unwilling to discuss the drainage problem with them and that one of the respondents told appellant William Elvester, "You're lower than I am, water runs downhill." This evidence could give rise to a reasonable inference that respondents knew the parking lot would divert water to appellants' property and failed to design the lot to avoid that probable result, negating the conclusion that the lot was defective and unsafe. We therefore conclude appellants have presented a genuine issue of material fact for trial, precluding summary judgment.

Because we determine summary judgment was not appropriate, we need not address appellants' other issues.

Reversed and remanded.