This opinion will be unpublished and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


Oscar John Abrahamson,


County of St. Louis,

Filed December 14, 1999
Kalitowski, Judge

St. Louis County District Court
File No. C398601639

Gunnar B. Johnson, Clure, Eaton, Butler, P.A., 222 West Superior Street, Suite 200, Duluth, MN 55802 (for appellant)

Alan L. Mitchell, St. Louis County Attorney, Barbara A. Russ, Assistant County Attorney, 100 North 5th Avenue West, #501, Duluth, MN 55802-1298 (for respondent)

Considered and decided by Kalitowski, Presiding Judge, Amundson, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant Oscar John Abrahamson challenges the district court's determination that respondent St. Louis County was entitled to immunity from his negligence suit. We affirm.


On appeal from summary judgment, the reviewing court asks two questions: (1) whether there are any genuine issues of material fact; and (2) whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). This court must view the evidence in the light most favorable to the party against whom summary judgment was granted. Grondahl v. Bulluck, 318 N.W.2d 240, 242 (Minn. 1982). Where the record taken as a whole could not lead a rational fact-finder to rule for the nonmoving party, there is no genuine issue for trial. DLH, Inc., v. Russ, 566 N.W.2d 60, 69 (Minn. 1997). Whether an immunity defense applies is a question of law that this court reviews without deference to the district court decision. Gerber v. Neveaux, 578 N.W.2d 399, 402 (Minn. App. 1998), review denied (Minn. July 16, 1998).

Minnesota law provides that a county is immune from:

Any 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, * * * if the claim arises from a loss incurred by a user of park and recreation property or services.

Minn. Stat. § 466.03, subd. 6e (1998). Further, a county is immune from any claim arising from the operation of an all-terrain vehicle on certain county-administered land. Minn. Stat. § 466.03, subd. 16 (1998).

It is undisputed that appellant was driving an all-terrain vehicle on respondent's recreational land when the ATV tipped and appellant suffered permanent injuries. Appellant concedes that the above-cited statutes providing immunity for the county apply, but argues respondent is not entitled to immunity because an exception to the application of immunity exists for "conduct that would entitle a trespasser to damages against a private person." Minn. Stat. § 466.03, subds. 6e, 16. Appellant contends the district court erred in concluding this exception did not apply. We disagree.

Minnesota has adopted the standard of care owed to a trespasser found in the Restatement (Second) of Torts § 335 (1965) [hereinafter Restatement]. Martin v. Spirit Mountain Recreation Area Auth., 566 N.W.2d 719, 721 (Minn. 1997). Restatement § 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 maintains and

(ii) is, to his knowledge, likely to cause death or seriously 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.

Martin, 566 N.W.2d at 721-22 (quoting Restatement § 335). Landowners are liable if they fail to exercise reasonable care to warn trespassers about hidden, artificial dangers created or maintained by the landowner. Steinke v. City of Andover, 525 N.W.2d 173, 177 (Minn. 1994).

Appellant first argues the district court erred in concluding the man-made hole that caused appellant's ATV to tip was not an artificial condition. We disagree. Man-made conditions are not "artificial" if they duplicate nature. Johnson v. Washington County, 518 N.W.2d 594, 599-600 (Minn. 1994) (holding man-made pond was not an artificial condition where terrain duplicated nature). See also Martin, 566 N.W.2d at 722-23 (holding man-altered ski slope with sideward slope was not an artificial condition where terrain duplicated nature).

Here, no material disputes of fact exist regarding the fact that appellant drove his ATV into a man-made hole approximately two-and-one-half feet deep. But the record indicates the natural terrain in the area has many holes that are of a similar depth. Respondent presented unrebutted survey evidence indicating that such obstacles occur naturally approximately every 20 to 40 feet. Moreover, there is no evidence that the hole in question had a unique ability to tip an ATV as opposed to naturally occurring obstacles such as holes, rocks, or fallen tree limbs.

Natural conditions are to be expected in a recreational area, and the owner should not be required to patrol the area or to make it safe for those who enter upon it.

Green-Glo Turf Farms, Inc. v. State, 347 N.W.2d 491, 494-95 (Minn. 1984). Viewing the facts in the light most favorable to appellant, we conclude the district court did not err in concluding the hole is not an artificial condition for purposes of the trespasser standard.

Appellant also claims the district court erred in determining that appellant failed to show respondent knew or should have known the hole was likely to pose a risk of death or serious bodily harm. A landowner is liable only where it realizes or should realize an artificial condition will involve a risk of death or serious bodily harm. Noland v. Soo Line R.R., 474 N.W.2d 4, 6 (Minn. App. 1991), review denied (Minn. Sept. 13, 1991). The possibility that serious harm might result is not sufficient. Johnson v. State, 478 N.W.2d 769, 773 (Minn. App. 1991) (holding serious harm was not likely to result from a raised sidewalk joint), review denied (Minn. Feb. 27, 1992). Conditions found likely to cause death or serious bodily harm generally have inherently dangerous propensities, such as high voltage electrical wires. Id.

Appellant failed to provide any probative evidence that respondent knew or should have known that holes on its property were likely to cause death or serious injury. There is no evidence that respondent had knowledge of any previous accidents. Moreover, the fact that appellant suffered a serious injury is not sufficient evidence to establish serious injury was likely to occur. See id. Finally, we note that under the trespasser standard of liability, appellant was required to be alert to conditions on the land. See Sirek by Beaumasters v. State, Dep't of Natural Resources, 496 N.W.2d 807, 812 (Minn. 1993).

The injured party has the burden of proving that all the elements of Restatement § 335 have been met in order to defeat immunity. Schaffer v. Spirit Mountain Recreation Area Auth., 541 N.W.2d 357, 360 (Minn. App. 1995). We conclude the district court did not err in determining that appellant failed to meet this burden. Because the district court properly found that recreational-area immunity and all-terrain-vehicle immunity apply, we need not address respondent's alternative arguments.