This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Rachel Vivian Rowell,



McLeod County,


Filed July 8, 1997


Short, Judge

McLeod County District Court

File No. C095606

James P. Westphal, 270 Grain Exchange Building, 301 Fourth Avenue South, Minneapolis, MN 55415 (for appellant)

James R. Andreen, Erstad & Riemer, P.A., 1000 Northland Plaza, 3800 West 80th Street, Bloomington, MN 55431 (for respondent)

Considered and decided by Short, Presiding Judge, Toussaint, Chief Judge, and Schultz, Judge.[*]


SHORT, Judge

Rachel Vivian Rowell and a companion were traveling by motorcycle on a McLeod County road, when the motorcycle's back wheel struck a pothole located on the centerline of the road. Rowell's companion lost control of the motorcycle and collided with a telephone pole. The impact of the collision permanently injured Rowell, and killed her companion. Several years later, Rowell sued McLeod County, alleging it negligently failed to maintain the road. The county moved for summary judgment, claiming immunity and failure by Rowell to establish the necessary elements of a negligence claim. The trial court granted summary judgment in favor of the county.

On appeal, Rowell argues the trial court erred in granting summary judgment because: (1) the county received constructive notice of the pothole allegedly at fault in the accident; (2) the pothole was an inherently hazardous condition; and (3) the county is not shielded from civil tort liability on the basis of either discretionary immunity or vicarious official immunity. Because the pothole was not an inherently hazardous condition, we affirm.


On appeal from summary judgment, this court determines whether there are any genuine issues of material fact and whether the trial court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). While we view the evidence in the light most favorable to the party opposing the motion, the nonmovant must produce specific facts that create an issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986). Governmental immunity from tort liability presents a question of law, which we review de novo. Snyder v. City of Minneapolis, 441 N.W.2d 781, 786 (Minn. 1989).

Counties have a statutory duty to construct, reconstruct, improve, and maintain county highways. Minn. Stat. § 163.02, subd. 1 (1996); see Johnson v. County of Nicollet, 387 N.W.2d 209, 211 (Minn. App. 1986) (holding counties have a common law duty to maintain streets and sidewalks in a reasonably safe condition). However, liability is limited to those cases in which a municipality has either actual or constructive notice of a defective condition that is inherently dangerous. See Hansen v. City of St. Paul, 298 Minn. 205, 207-09, 214 N.W.2d 346, 348-49 (1974) (requiring for purposes of liability, that municipality have actual or constructive notice of defective condition); Johnson v. State, 478 N.W.2d 769, 773 (Minn. App. 1991) (noting conditions satisfying liability requirement generally are those likely to cause death or serious bodily harm), review denied (Minn. Feb. 27, 1992).

Rowell argues the trial court erred in granting summary judgment in favor of the county because the county received constructive notice of the pothole's existence. However, even taking this allegation as true, there is no evidence to show the pothole was an inherently dangerous condition. The record demonstrates: (1) the pothole was located on the centerline of the road and protruded into the traffic lane only slightly; (2) the minimal protrusion of the pothole did not interfere with the actual path of traffic; (3) none of the affiant landowners who owned property adjacent to the accident site had ever complained of the pothole; (4) one of the landowners specifically stated that because the pothole existed on the centerline, it had never interfered with his driving; and (5) a second landowner noted that when he struck the pothole with his truck earlier in the year, there was no resultant damage. Under these circumstances, the trial court properly granted summary judgment to the county. See Gutbrod v. County of Hennepin, 529 N.W.2d 720, 723 (Minn. App. 1995) (holding mere occurrence of accident does not establish that condition was obviously dangerous). Because we conclude the pothole was not an inherently

hazardous condition, we decline to address the remaining arguments on appeal.


[ ] * Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.