This opinion will be unpublished and

may not be cited except as provided by

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




Scott D. Kneen,



George Jensen, et al.,


Filed March 17, 1998


Mansur, 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.

Anoka County District Court

File No. C29513266

Paul A. Strandness, Markus C. Yira, Eckman, Strandness & Egan, P.A., 200 East Lake Street, Wayzata, MN 55391-1662 (for appellant)

Alan R. Vanasek, Cara J. Debes, Jardine, Logan & O'Brien, P.L.L.P., 2100 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101 (for respondents)

Considered and decided by Kalitowski, Presiding Judge, Davies, Judge, and Mansur, Judge.



Scott D. Kneen appeals from a judgment in favor of George Jensen, individually and d/b/a St. Francis Foods, Inc., arguing that his negligence claim is not time-barred by Minn. Stat. § 541.051, subd. 1(a) (1996). Because the record does not show that the accident occurred due to negligent maintenance, operation, or inspection of the premises, we affirm.


On May 26, 1995, Jensen hired Kneen, an independent contractor, to repair a heating and air conditioning problem. Because a cardboard baler blocked the control panel, Kneen was required to inspect the various pipes and circuits by hand. During his inspection, Kneen fell through a suspended ceiling and sustained severe and permanent injuries.

Kneen brought common-law negligence claims against Jensen, alleging negligent failure to inspect, maintain, and repair the premises and negligent failure to warn of the unreasonable risk of harm posed by the false ceiling. Jensen moved for summary judgment, seeking to dismiss Kneen's claims as time-barred by Minn. Stat. § 541.051, subd. 1(a). The district court ruled that Kneen's claims were time-barred and that the statutory exception did not apply because the claims did not arise from the negligent "maintenance, operation or inspection of the real property improvement." Id., subd. 1(c). Thereafter, Kneen filed this appeal.


On an appeal from summary judgment, this court must 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).

Minn. Stat. § 541.051, subd. 1, provides for a two-year limit on actions for bodily injury caused by improvements to real property, but excludes from its operation actions against the owner or other person in possession resulting from negligent maintenance, operation, or inspection of the property improvement. Sullivan v. Farmers & Merchants State Bank, 398 N.W.2d 592, 594 (Minn. App. 1986), review denied (Minn. Mar. 13, 1987). The statute provides:

Except where fraud is involved, no action by any person in * * * tort, or otherwise to recover damages for * * * bodily injury * * * arising out of the defective and unsafe condition of an improvement to real property * * * shall be brought against any person performing or furnishing the design, planning, supervision, materials, or observation of construction or construction of the improvement to real property or against the owner of the real property more than two years after discovery of the injury, * * * nor, in any event shall such a cause of action accrue more than ten years after substantial completion of the construction.

Minn. Stat. § 541.051, subd. 1. The exception to the general rule provides:

Nothing in this section shall apply to actions for damages resulting from negligence in the maintenance, operation or inspection of the real property improvement against the owner or other person in possession.

Id., subd. 1(c) (emphasis added).

Kneen argues that the exception applies because the injury arose from Jensen's negligence in the maintenance of the meat cooler roof and false ceiling. The district court found that Kneen's claims did not involve maintenance; rather, they were related to the original installation of the ceiling. The ceiling was installed more than 10 years before Kneen filed his claims, and its condition was substantially unchanged at the time of Kneen's accident. Based on the evidence, the district court concluded that Kneen fell through the false ceiling because of his weight, and not because the ceiling was defective. We conclude that the district court's determination is correct.

"[M]aintenance, operation, or inspection" of an improvement to real property refers to "activities" that "generally occur after an improvement is built, and they are usually performed by an owner or tenant." Ocel v. City of Eagan, 402 N.W.2d 531, 534 (Minn. 1987). In this case, there is no evidence in the record that Kneen's accident was caused by any "activities" that occurred after the ceiling was installed. Kneen's assertion that it was difficult for him to distinguish between the ceiling of the meat cooler and the false ceiling relates to the original installation of both ceilings, not to any maintenance activities.

Furthermore, we are not persuaded by Kneen's argument that Sullivan stands for the proposition that Minn. Stat. § 541.051 does not bar failure to warn claims against owners or possessors of real property. Sullivan is factually distinguishable from the present case because it addresses a situation where an individual was injured when he was exiting negligently-constructed premises in the ordinary and customary way, and the landowner knew that the condition was dangerous and the customers would use it. 398 N.W.2d at 595. In this case, there is no evidence that the false ceiling was inherently dangerous or that it posed any threat when used in the ordinary and customary manner.