This opinion will be unpublished and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

A05-483

 

Kathryn A. Spaude,

a/k/a Kay A. Spaude, et al.,

Appellants,

 

vs.

 

Chili’s of Minnesota, Inc.,

d/b/a Romano’s Macaroni Grill,

Respondent,

 

CSM West Ridge, Inc.

Defendant.

 

Filed February 14, 2006

Affirmed
Crippen, Judge*

 

Hennepin County District Court

File No. PI 04-2878

 

Robert J. Feigh, Christopher W. Harmoning, Heather I. Olson, Gray, Plant, Mooty, Mooty & Bennett, P.A., 1010 West St. Germain, Suite 600, St. Cloud, MN 56301 (for appellants)

 

Michael H. Streater, Brent R. Lindahl, Briggs and Morgan P.A., 2200 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent)

 

            Considered and decided by Minge, Presiding Judge, Randall, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            Challenging the district court’s summary judgment dismissing their negligence claims against respondent Chili’s of Minnesota, appellants Kathryn and Patrick Spaude principally contend that there were triable fact issues on the claim that Kathryn Spaude’s fall resulted from respondent’s floor-cleaning procedures.  Because the evidence does not support this or other claims that respondent created a dangerous condition or had actual or constructive knowledge of such a condition, we affirm. 

FACTS

            Appellants sued respondent for damages arising out of injuries Kathryn Spaude sustained when the rubber tip of her right crutch slipped out from under her in the entryway of Romano’s Macaroni Grill Restaurant.  Appellants produced evidence on three sets of floor-cleaning instructions applicable to the restaurant and alleged that respondent failed to properly follow the procedures for the entryway.  Appellants also argued that the floor mat in the entryway was improperly positioned. 

            The district court granted respondent’s summary judgment motion because it concluded that there was no evidence that (1) respondent failed to utilize the correct floor-cleaning procedure, (2) the cleaning practices produced a slippery residue of cleaning fluid, (3) the floor mat was placed improperly by respondent or was the cause of Kathryn Spaude’s fall, or, alternatively, (4) respondent had either actual or constructive notice of slipperiness or a misplaced mat in the entryway of the restaurant. 

D E C I S I O N

            When reviewing summary judgment, an appellate court asks whether there are any genuine issues of material fact or the district court erred in its application of the law.  Minn. R. Civ. P. 56.03; State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  “On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.”  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  A genuine issue of material fact does not exist when “the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.” DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).

            A landowner is liable for injuries due to a dangerous condition only if “the dangerous condition actually resulted from the direct actions of a landowner or his or her employees” or if “the landowner had actual or constructive knowledge of the dangerous condition.”  Rinn v. Minn. State Agric. Soc’y, 611 N.W.2d 361, 365 (Minn. App. 2000).  Constructive knowledge is indicated if the landowner should, with reasonable care, have known of the dangerous condition.  Bahl v. Country Club Market, Inc., 410 N.W.2d 916, 919 (Minn. App. 1987).  This knowledge can be based on the length of time the dangerous condition existed on the landowner’s premises.  Rinn, 611 N.W.2d at 365.

            We first consider the district court’s conclusion that respondent did not cause a dangerous condition by failing to utilize the applicable floor-cleaning procedure.   A one-page document posted in the restaurant included instructions entitled “Floor Cleaning Procedures” and “Concrete/Loading Dock Cleaning Procedures.”  A third set of cleaning-product instructions includes a page entitled “Front of the House Procedure.”  Appellants argued that the “Floor Cleaning Procedures” and the “Front of the House Procedure” applied to the entryway, and that respondent failed to comply with these procedures. 

            Chili’s manager David Olson testified in an affidavit that only the “Concrete/ Loading Dock Cleaning Procedures” applied to the entry floor area, which is a concrete surface, and that the “Floor Cleaning Procedures” applied to the tiled floors.  Deposition testimony and an affidavit from the person who cleaned the floors indicate that he complied with the “Concrete/Loading Dock Cleaning Procedures.” 

            Appellants produced no evidence to contradict Olson’s testimony about the applicable instructions, but instead submitted the affidavit of floor-safety consultant Jon Dahl.  Dahl discussed the “Floor Cleaning Procedures” and the “Front of the House Procedure,” and stated his opinion that respondent did not comply with either of these procedures.  But Dahl’s opinion is not probative; in his affidavit, Dahl did not offer any explanation of why those two procedures applied, rather than the “Concrete/Loading Dock Cleaning Procedures.”

            Appellants note that although the “Floor Cleaning Procedures” refer to “base tile surfaces,” which are not part of the entryway, the reference is not exclusive because the procedure actually refers to “all floor and base tile surfaces.”  Appellants also argue that the “Concrete/Loading Dock Cleaning Procedures” imply application to concrete outside, rather than stained and sealed concrete inside a building.  These readings of the procedures are backed by no testimony, are barely suggested by the language, and do not contradict the manager’s testimony on the proper use of the instructions.  The court did not err in concluding, inter alia, that respondent complied with the applicable cleaning procedures. 

The court also concluded that, even if there were cleaning errors, there was no direct evidence of any resulting accumulation of cleaning substances in the entryway.  The court considered speculative the statements of Dahl and another floor-safety consultant that failure to follow the applicable procedures would lead to the accumulation of cleaning substances on the floor which would become slippery when exposed to moisture.  Because there was no error in the district court’s analysis of the claim of failure to follow the applicable cleaning procedures, we have no occasion to examine the court’s conclusion that the effects of the improper cleaning were not adequately proved.          

            The district court also concluded that respondent did not cause a dangerous condition by improper placement of the floor mat in the entryway.  Appellants produced evidence that Chili’s employees were responsible for returning the mat to its correct position if they noticed it out of place, but there is no evidence that respondent caused the floor mat to be placed improperly.  Appellants also presented no evidence that the placement of the mat created a dangerous condition or caused Kathryn Spaude’s fall.  The court did not err in concluding that appellants failed to establish a genuine issue of fact as to whether respondent created a dangerous condition through its placement of the floor mat. 

            Finally, there was no error in the district court’s added conclusion, necessary to its summary judgment, that respondent did not have actual or constructive knowledge of a dangerous condition.  Appellants argue that the condition existed since 2001, when respondent began failing to follow the appropriate cleaning instructions.  Because of the inadequacy of evidence that respondent failed to follow applicable cleaning instructions, this argument fails.  Appellants produced no other evidence that respondent knew of a risk or that a dangerous condition existed for such a period of time that it had constructive knowledge of the condition.  See Anderson v. St. Thomas More Newman Ctr., 287 Minn. 251, 253, 178 N.W.2d 242, 243-44 (1970) (affirming district court’s directed verdict against appellant because there was no proof “that the water on which [appellant] 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”). 

            Affirmed.