This opinion will be unpublished and

may not be cited except as provided by

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




Howe Richardson Company,



Wachtler Construction Company,


Cottonwood Co-op Oil Company,


Filed February 10, 1998


Toussaint, Chief Judge

Lyon County District Court

File No. C19682

Michael D. Barrett, Andrea E. Reisbord, Cousineau, McGuire & Anderson, Chartered, 600 Travelers Express Tower, 1550 Utica Avenue South, Minneapolis, MN 55416-5318 (for appellant)

L. Wayne Larson, Jon C. Saunders, Anderson, Larson, Hanson and Saunders, P.L.L.P., 331 Southwest Third Street, Willmar, MN 56201 (for respondent Wachtler Construction Company)

Gene P. Bradt, Hansen, Dordell, Bradt, Odlaug & Bradt, P.L.L.P., 3900 Northwoods Drive, Suite 250, St. Paul, MN 55112-6973 (for respondent Cottonwood Co-op Oil Company)

Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Holtan, Judge.**

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


TOUSSAINT, Chief Judge

Appellant, Howe Richardson Company, seeks reimbursement for workers' compensation benefits paid to or on behalf of Rollo Jackson, who was injured when he fell into a hole created by Wachtler Construction Company on premises owned by Cottonwood Co-op Oil Company. Howe Richardson challenges the district court's order granting summary judgment. Because the district court properly determined that Jackson was a trespasser as a matter of law, we affirm.


We review an order granting summary judgment to determine whether there are any genuine issues of material fact, and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). The district court may not decide fact issues on a motion for summary judgment; its sole function is to determine whether fact issues exist. Nord v. Herreid, 305 N.W.2d 337, 339 (Minn. 1981). We "must view the evidence in a light most favorable to the party against whom judgment was granted." Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). Ordinarily, summary judgment should be granted in a negligence case only if the facts are undisputed and the evidence so clear that it will leave no room for honest differences of opinion among reasonable people. Trepanier v. McKenna, 267 Minn. 145, 149-50, 125 N.W.2d 603,606 (1963). Summary judgment is inappropriate if reasonable people could draw different conclusions from the evidence presented. Illinois Farmers Ins. Co. v. Tapemark Co., 273 N.W.2d 630, 633 (Minn. 1978).

A trespasser is a person who enters or remains on the premises without the express or implied consent of the possessor of land. Rieger v. Zackoski, 321 N.W.2d 16, 20 (Minn. 1982). An owner or occupier of real property owes no duty to exercise reasonable care for the safety of a trespasser. Sirek v. State, 496 N.W.2d 807, 809 (Minn. 1993). An entrant is a person who enters or remains upon the premises of another and is not a trespasser. A possessor of land owes entrants a duty to use reasonable care for their safety. Peterson v. Balach, 294 Minn. 161, 174, 199 N.W.2d 639, 647 (1972).

An entrant who exceeds the scope of the possessor's invitation or permission may become a trespasser. Rieger, 321 N.W.2d at 20. To determine whether an entrant has exceeded the scope of his or her invitation, the court or the jury must determine the area of invitation, which varies

with the circumstances of the case. It extends to the entrance of the property, and to a safe exit after the purpose is concluded; and it extends to all parts of the premises to which the purpose may reasonably be expected to take him, and to those which are so arranged as to lead him reasonably to think that they are open to him.

Behrendt v. Ahlstrand, 264 Minn. 10, 14-15, 118 N.W.2d 27, 30 (1962) (quotation omitted). The scope of an invitation may be a question of fact for the jury to determine. See Rieger, 321 N.W.2d at 20.

The district court made a legal determination that Rollo Jackson "exceeded the extent of his invitation or permission to be on the premises" and became a trespasser when he went into the fertilizer room. We agree.

The affidavits submitted and the deposition testimony indicate that in these circumstances Jackson was a trespasser (1) Jackson entered the Cottonseed Co-op Oil Company (the "Co-op") for the limited purpose of discussing the start up of a new scale with the plant manager; (2) the door to the fertilizer plant was closed and marked with a sign stating "Keep Out" "Big Hole"; (3) Jackson was not scheduled to do maintenance on the scale in the fertilizer plant; (4) Bradley Zarth, Jackson's co-worker, did not see anyone enter or exit the fertilizer plant through the door; (5) neither Jackson nor Zarth asked for or received permission to enter the plant; (6) neither Jackson nor Zarth were attempting to enter or exit the Co-op; and (7) Jackson had been in the fertilizer plant before, so he knew that he did not need to enter to achieve his objective.

The district court's determination that Jackson was a trespasser is consistent with the standards in Behrendt defining the area of invitation. The evidence demonstrates that the accident did not occur near the entrance or exit to the Co-op property, that it was not necessary for Jackson to enter the fertilizer plant to talk with the plant manager, and that the warning sign on the door would not lead Jackson to reasonably believe that the door was open to him. See Behrendt, 264 Minn. at 14-15, 118 N.W.2d at 30 (defining area of invitation).

Howe Richardson Company argues that because Jackson had entered the fertilizer plant in the past, and on the day of the accident neither the plant manager nor other employees told him not to enter the fertilizer plant, the area of invitation arguably was extended to include that area on this occasion. But Jackson had not gone to the Co-op with the purpose of servicing the scale; he had gone to talk with the plant manager. The fact that Jackson had entered the forbidden area in the past is insufficient to create a factual dispute. Similarly, the fact that nobody verbally warned him not to enter is insignificant. Such a warning was unnecessary because a sign already had been affixed to the door warning intruders of the "Big Hole" and to "Keep Out." Because the Co-op had posted a warning sign on the door, Jackson was put on notice that he was not invited to enter the plant. Given the sign on the door and the fact that Jackson did not need to enter the fertilizer plant, reasonable minds cannot come to any conclusion other than that Jackson was a trespasser when he entered the plant.

Howe Richardson argues in the alternative that even if the district court correctly determined that Jackson was a trespasser, Minnesota case law recognizes two exceptions to the general rule of no duty of care for trespassers. The first exception establishes a duty of care to trespassers for injury caused by an artificial condition on the premises "likely to cause death or serious bodily harm" where a

possessor of land knows or has reason to know that trespassers regularly use certain portions of the premises * * * unless the trespasser is already aware, or from facts the trespasser knew should have been aware, of the condition of the premises and the risk involved.

4 Minnesota Practice, JIG 326 (1986); Hanson v. Bailey, 249 Minn. 495, 500, 83 N.W.2d 252, 257 (1957). But this exception is inapplicable because the record does not establish that trespassers regularly used the property, and the sign posted on the door informed Jackson of the condition of the premises and the risk involved. Furthermore, Zarth's deposition testimony states that after he exited the plant he told Jackson "a couple of times to be careful."

The second exception cited by Howe Richardson imposes a duty on a possessor of land while carrying on his activities to warn trespassers or use reasonable care for their safety

if [the] possessor * * * knows or has reason to know, that a trespasser is present on the premises, * * * unless the trespasser is already aware or from facts the trespasser knows should be aware of the activities and of the risk involved * * *.

4 Minnesota Practice, JIG 327 (1986); Doe v. Brainerd Int'l Raceway, Inc., 533 N.W.2d 617, 621 (Minn. 1995). Similarly, this section is inapplicable because both the sign on the door and the warnings from Zarth suggest that Jackson was aware of the activity and the risk involved. Howe Richardson does not point to any evidence that would dispute these facts.

Finally, because we have concluded that the district court did not err when it determined that Jackson was a trespasser, the district court's dismissal of the claims against Wachtler, which created the pit, was proper.