This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


Joeffre M. Kolosky,


Earl J. Backer,

Filed November 16, 1999
Mulally, Judge[*]

Hennepin County District Court
File No. 9814138

Kevin J. Kolosky, 501 East Highway 13, Suite 114, Burnsville, MN 55337 (for appellant)

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.

U N P U B L I S H E D   O P I N I O N


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.


This negligence action arises out of injuries Kolosky allegedly sustained on January 13, 1996, when he slipped on an icy sidewalk at an apartment building owned by Backer. At about 6:00 p.m., Kolosky left the apartment building and traversed a sidewalk leading to the parking lot where he parked his car. He slipped, threw his hands up to catch his balance and hurt his shoulder, requiring surgery.

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.


In reviewing a grant of summary judgment, this court determines whether there are any genuine issues of material fact and whether the lower court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). When the record reflects a complete lack of proof on an essential element of the plaintiff's claim, a defendant is entitled to summary judgment as a matter of law. Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995). The essential elements of negligence are the existence of a duty of care, a breach of that duty, an injury was sustained, and breach of the duty was the proximate cause of the injury. Id. The existence of a legal duty is an issue for the court to determine as a matter of law. ServiceMaster of St. Cloud v. GAB Business Services, Inc., 544 N.W.2d 302, 307 (Minn. 1996).

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.