STATE OF MINNESOTA
IN COURT OF APPEALS
C6-99-1540

Gail E. Franklin,
Appellant,

vs.

Northside Christian Community Services,
Respondent,

Our Savior's Lutheran Church,
Respondent.

Hennepin County District Court
File No. 98008434

John O. Murrin, III, Murrin Law Firm, 4018 West 65th Street, Edina, MN 55435 (for appellant)

James M. Mahoney, Paul E.D. Darsow, Mahoney Dougherty & Mahoney, 801 Park Avenue, Minneapolis, MN 55404 (for respondent Northside)

Stephen O. Plunkett, Karen Imus Johnson, Rider, Bennett, Egan & Arundel, LLP, 333 South Seventh Street, Suite 2000, Minneapolis, MN 55402 (for respondent Our Savior’s Lutheran Church)

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

HARTEN, Judge

Appellant, the victim of a slip and fall accident on a wet floor, challenges the summary judgment dismissing her claims against the landlord and the tenant of the property on the grounds that there was no evidence of their actual or constructive knowledge of the water within a reasonable time to remedy the situation. Because we see no issue of material fact and respondents are entitled to summary judgment as a matter of law, we affirm.

Respondent Our Savior’s Lutheran Church (OSLC) and True Vine Baptist Church are co-owners of a building. They formed a condominium association to maintain the common areas of the building. Respondent Northside Christian Community Services (NCCS) rented space from OSLC to operate a food shelf.

Appellant Gail Franklin, a food shelf patron, was injured when she slipped and fell on a wet hallway in the common area after she had picked up food. She brought this action against respondents. Both respondents moved for summary judgment, which was granted because the district court found that neither of them had actual or constructive knowledge of the wet floor that allowed them a reasonable time to remedy the condition.

Appellant challenges the summary judgment, arguing that there are genuine issues of material fact as to whether either respondent had actual or constructive knowledge of the water on the floor.[1]

There is no genuine issue of material fact if the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party. DLH Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997). A genuine issue of material fact must be established by substantial evidence. Id. at 69-70. Mere averments made by the nonmoving party will not defeat summary judgment. Id. at 71.

We conclude that there is no evidence that respondents had actual or constructive knowledge of the wet floor that gave them a reasonable time to remedy the situation. A case with similar facts, Anderson v. St. Thomas More Newman Ctr., 287 Minn. 251, 178 N.W.2d 242 (1970), affirmed a directed verdict for the defendant

in the absence of any proof that the water on which [the plaintiff] fell had been in existence there for such an appreciable period of time prior to the occurrence as to place defendant on notice, actual or constructive, of the danger to be apprehended. There is no direct evidence whatever as to the source of the water.

Id. at 253, 178 N.W.2d at 243-44. No genuine issue of material fact precludes summary judgment here.

Appellant relies on Erickson v. Curtis Inv. Co., 447 N.W.2d 165, 170 (Minn. 1989). But Erickson is readily distinguishable on factual and legal grounds. It concerns the duty of the owner-operator of a commercial parking ramp to provide security to protect its customers from criminal assaults by third parties. Id. at 168. Erickson found a genuine issue of material fact as to whether the defendant met its duty because the feasibility of efforts to deter crime had to be evaluated by a jury. Id. Here, there is no evidence other than appellant’s belief as to what caused the water to be on the floor. And appellant’s belief alone does not present a genuine issue of material fact for a jury to evaluate.

Affirmed.