Florence Maki, Respondent, vs. Starboard Motors, Inc., d/b/a Cloquet Ford Chrysler Center, Appellant. A05-621, Court of Appeals Unpublished, September 13, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-621

Florence Maki,

Respondent,

vs.

Starboard Motors, Inc.,

d/b/a Cloquet Ford Chrysler Center,

Appellant.

Filed September 13, 2005

Affirmed

Kalitowski, Judge

Carlton County District Court

File No. C1-03-617

Robert C. Falsani, Tanna B. Schwarz, Falsani, Balmer, Peterson, Quinn & Beyer, 1200 Alworth Building, 306 West Superior Street, Duluth, MN 55802 (for respondent)

Eric D. Hylden, Nicole R. Weinand, Reyelts Leighton Bateman Hylden & Sturdevant, Ltd., 700 Providence Building, Duluth, MN 55802-1801 (for appellant)

Considered and decided by Kalitowski, Presiding Judge; Shumaker, Judge; and Minge, Judge.

U N P U B L I S H E D O P I N I O N

KALITOWSKI, Judge

Appellant Starboard Motors, Inc. (Starboard) challenges the district court’s order and award, and the district court’s denial of its motion for a new trial. The district court, after a one-day bench trial, found that Starboard was negligent in maintaining its parking lot but that respondent Florence Maki was 40% responsible for her own injuries. The district court awarded respondent $90,087.90 in damages. Starboard argues that the district court erred because (1) it had no duty to protect respondent from open and obvious dangers in its parking lot; and (2) the limited, circumstantial evidence presented at trial, as a matter of law, did not establish causation. We affirm.

D E C I S I O N

“In a claim for negligence, a plaintiff must prove: (1) the defendant has a legal duty to the plaintiff to take some action; (2) there was a breach of that duty; (3) the breach of the duty was the proximate cause of the harm to the plaintiff; and (4) damage.” Gilbertson v. Leininger, 599 N.W.2d 127, 130 (Minn. 1999).

Starboard first challenges the district court’s finding that it owed a duty to respondent on this record. Generally, the existence of a legal duty is an issue for the court to determine as a matter of law. Louis v. Louis, 636 N.W.2d 314, 318 (Minn. 2001). It is well settled that a landowner has a duty to use reasonable care to prevent persons from being injured by conditions on the land that represent a foreseeable risk of injury. Hanson v. Christensen, 275 Minn. 204, 212, 145 N.W.2d 868, 874 (1966). But in Minnesota a landowner generally “is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them.” Peterson v. W.T. Rawleigh Co., 274 Minn. 495, 497, 144 N.W.2d 555, 557 (1966) (quoting Restatement, Torts (2d) § 343A (1965)). The rationale underlying this rule is that “no one needs notice of what he knows or reasonably may be expected to know.” Baber v. Dill, 531 N.W.2d 493, 496 (Minn. 1995) (quotation omitted). But a landowner may have a duty if the landowner should anticipate the harm despite its obvious character. Id. at 495-96.

Starboard argues that “[t]he test [for obviousness] is not whether the injured party actually saw the danger, but whether it was in fact visible.” See Munoz v. Applebaum’s Food Mkt., Inc., 293 Minn. 433, 434, 196 N.W.2d 921, 922 (1972). Thus, according to Starboard, because there was testimony that the cracks in the pavement were visible—based on the language of Munoz—the district court erred in finding the existence of a duty to protect respondent from the danger posed by those cracks.

But Munoz involved a plaintiff who walked into “a pool of water some 20 feet square and 1/4 of an inch deep,” then fell and injured herself. Id.at 434, 196 N.W.2d at 921. Thus, the broad language of Munoz is distinguishable here, where respondent was walking across a paved parking lot with some cracks that were allegedly filled with ice. Cf. Sperr v. Ramsey County, 429 N.W.2d 315, 317-18 (Minn. App. 1988) (holding that no duty exists to protect pedestrian from low-hanging branch that is clearly visible), review denied (Minn. Nov. 23, 1988); Lawrence v. Hollerich, 394 N.W.2d 853, 856 (Minn. App. 1986) (holding that steepness of the hill so obvious no warning was required), review denied (Minn. Dec. 17, 1986); Bisher v. Homart Dev. Co., 328 N.W.2d 731, 733-34 (Minn. 1983) (holding that there is no duty to warn patrons about a large planter because it presented an obvious danger); Hammerlind v. Clear Lake Star Factory Skydiver’s Club, 258 N.W.2d 590, 593-94 (Minn. 1977) (holding that a lake was an obvious danger to parachutists). We conclude that Starboard’s argument that it had no duty to protect respondent from the dangers in its parking lot is without merit on these facts.

Further, the Minnesota Supreme Court has stated, quoting Restatement, Torts (2d) § 343A, comment f, that:

[t]here are . . . cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. In such cases the possessor is not relieved of the duty of reasonable care which he owes to the invitee for his protection. This duty may require him to warn the invitee, or to take other reasonable steps to protect him, against the known or obvious condition or activity, if the possessor has reason to expect that the invitee will nevertheless suffer physical harm . . . .

Such reason may also arise where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk. In such cases the fact that the danger is known, or is obvious, is important in determining whether the invitee is to be charged with contributory negligence, or assumption of risk. . . . It is not, however, conclusive in determining the duty of the possessor, or whether he has acted reasonably under the circumstances.

Rawleigh, 274 Minn. at 497, 144 N.W.2d at 557-58 (emphasis added). Thus, while the determination of duty is generally a legal issue, the determination of whether a danger is open and obvious or whether the landowner is required to protect invitees because it has reason to expect the invitee will nevertheless suffer physical harm, is an issue for the fact-finder. See Gearin v. Wal-Mart Stores, Inc., 53 F.3d 216, 217 (8th Cir. 1995) (in slip-and-fall cases “it is proper to let the jury decide whether the property owner should have foreseen that people might injure themselves on visible ice patches on the property”) (citing Rawleigh, 274 Minn. at 497, 144 N.W.2d at 557-58).

In addition, the holding that landowners may have a duty if they should anticipate the harm despite the obvious nature of the danger was not overruled by the language of Munoz. See Louis, 636 N.W.2d at 319 (recognizing the continued existence of the exception to the open-and-obvious liability preclusion stated in Rawleigh). Accordingly, we affirm the district court’s determination that Starboard owed respondent a duty.

II.

Starboard also challenges the district court’s finding of causation. The supreme court has stated that “causation, like negligence itself, is a fact issue . . . except when the facts are undisputed and are reasonably susceptible of but one inference.” Smith v. Kahler Corp., 297 Minn. 272, 279, 211 N.W.2d 146, 151 (1973). And “[i]t is only in those cases where the evidence is so clear and conclusive as to leave no room for differences of opinion among reasonable men that the issue of causation becomes one of law to be decided by the court.” Id. (quotation omitted). Accordingly, we conclude that, here, the issue of causation is one of fact rather than law.

“An appellate court may not reverse a trial court due to mere disagreement with its findings. Rather, we will reverse a lower court’s findings of fact only when those findings are clearly erroneous. Findings of fact are considered clearly erroneous only if they are not reasonably supported by the evidence.” Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 102 (Minn. 1999) (citation omitted).

Respondent was not required to show by direct evidence the exact manner and cause of her injury. See Sandvik v. Jammes, 281 Minn. 85, 89, 160 N.W.2d 700, 703-04 (1968). And she was entitled to rely on circumstantial evidence to prove causal negligence as long as that evidence made it “appear to be more probable that the injury came in whole or in part from [Starboard’s] negligence than from any other cause.” See id. at 90, 160 N.W.2d at 704.

The district court made the following relevant findings:

9. As [respondent] walked across the premises, she tripped and/or slipped on a rut/pothole/crack or ice, and fell to the ground.

10. The totality of the evidence shows that [Starboard’s] parking lot had previously been reconstructed due to an electrical situation; however, that the driveway/parking lot had never been fully resurfaced. It had been patched with hot and cold patches over the past seven years.

11. The parking lot had visible cracks and [Starboard] could reasonably anticipate they may cause injury in the event a person did fall during any weather condition, but specifically in winter.

12. Plaintiff fell attempting to cross the path to retrieve her vehicle, fell on uneven ground . . . [and was injured.]

We reject Starboard’s argument that these findings indicate that causation here is based purely on speculation. A number of pictures were submitted to the district court that depicted significant cracks in the parking lot in the immediate area where respondent fell. Witnesses from both sides also testified to their belief, prior to her fall, that respondent was capable of crossing the parking lot on her own. Also, the person in charge of safety at Starboard testified that the area where respondent fell was “somewhat less safe” than other areas of the parking lot. Finally, while respondent admitted she did not remember exactly how she fell, she did state her belief that the condition of the parking lot was the cause of her fall.

Taken as a whole, these facts support the inference that respondent’s fall was caused (at least in part, as the district court found) by Starboard’s negligent maintenance of the parking lot. See Sandvik, 281 Minn. at 89, 160 N.W.2d at 703-04; see also Minn. R. Civ. P. 52.01 (stating that due regard shall be given to the opportunity of the district court to judge the credibility of the witnesses); Norlander v. Cronk, 300 Minn. 471, 474, 221 N.W.2d 108, 111 (1974) (stating the same rule). We therefore affirm the district court’s finding of causation on this record.

Affirmed.