STATE OF MINNESOTA
IN COURT OF APPEALS
Joeffre M. Kolosky,
Earl J. Backer,
Filed November 16, 1999
Hennepin County District Court
File No. 9814138
Nancy A. Proffitt, C. Todd Koebele, Murnane, Conlin, White & Brandt, P.A., 1800 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101 (for respondent)
Considered and decided by Schumacher, Presiding Judge, Kalitowski, Judge, and Mulally, Judge.
Appellant Joeffre Kolosky challenges adverse summary judgment, arguing respondent Earl Backer had a duty to warn due to actual or constructive notice of a dangerous condition. We affirm.
At his deposition, Kolosky testified that after investigation he learned that the sidewalk dips before it meets the pavement such that water collects, forming ice. In early 1998, Kolosky took some photographs of the area and wrote Backer a note questioning whether he knew the sidewalk was sunken, and if he did, why didn't he have it repaired. Backer subsequently told Kolosky that he could not talk about it because Kolosky had made a claim against Backer's insurance company.
Before summary judgment, Kolosky filed an affidavit now recalling that Backer had said he had "already fixed it once." After a hearing, the district court granted summary judgment for Backer. The court concluded that, assuming that all the facts alleged are true, Kolosky failed to show that Backer had actual or constructive knowledge of a dangerous condition. Kolosky appeals.
A landowner owes a general duty of reasonable care for the safety of all persons invited upon its premises. Peterson v. Balach, 294 Minn. 161, 174, 199 N.W.2d 639, 647 (1972). Factors bearing on liability include the foreseeability of harm; the duty to inspect, repair or warn; the reasonableness of the inspection or repair; and the opportunity and ease of repair. Id. at 172 n. 7, 199 N.W.2d at 648, n. 7. A plaintiff must prove the landowner's actual or constructive knowledge of a dangerous condition to establish a landowner's duty to use reasonable care. Messner v. Red Owl Stores, 238 Minn. 411, 415, 57 N.W.2d 659, 662 (1953); see also Otto v. City of St. Paul, 460 N.W.2d 359, 362 (Minn. App. 1990) (holding plaintiff failed to establish landowner had actual or constructive notice of defective condition).
Kolosky contends actual knowledge can be inferred from Backer's admission that he had fixed the area once before. But, as the district court indicated, this admission is not sufficiently specific, and Kolosky does not suggest how or when the prior repair was accomplished. Speculative testimony without factual basis about what probably caused a hazard does not provide evidence of a landowner's actual knowledge. See Messner, 238 Minn. at 413-14, 57 N.W.2d at 661-62 (JNOV for defendant affirmed where plaintiff failed to establish how banana peel came to be on floor or defendant caused or had notice of dangerous condition).
Constructive knowledge of a hazardous condition may be established through evidence that the hazard was present for such period of time as to constitute constructive notice. Anderson v. St. Thomas More Newman Ctr., 287 Minn. 251, 253 178 N.W.2d 242, 243-44 (1970). Absent any proof that the hazard was present for an appreciable period of time, courts will not generally find constructive notice. Otis v. First Nat'l Bank of Minneapolis, 292 Minn. 497, 498, 195 N.W.2d 432, 433 (1972); Anderson, 287 Minn. at 253, 178 N.W.2d at 243. In this case, Kolosky testified that on the day he slipped he had gone in and out of the apartment building and not observed any hazardous conditions. Some two years after the slip, Kolsoky discovered the sidewalk was sunken. Kolosky did not present sufficient evidence that Backer had constructive knowledge of a hazardous condition.
The district court did not err as a matter of law in concluding that Kolosky failed to allege any facts on which the district court could find Backer had actual or constructive knowledge of a dangerous condition.
[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.