This opinion will be unpublished and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

A05-578

 

Kevin Jackson,
Appellant,

and

State of Minnesota Department of Human Services,
Plaintiff Intervenor,

vs.

ReliaStar Life Insurance Company,
Respondent.

 

Filed February 21, 2006

Affirmed

Minge, Judge

 

Hennepin County District Court

File No. PI 03-019416

 

 

Wilbur W. Fluegel, Fluegel Law Office, 150 South Fifth Street, Suite 3475, Minneapolis, MN 55415-1815; and

 

Michael A. Bryant, Bradshaw & Bryant, 1505 Division Street, Waite Park, MN 55387 (for appellant)

 

Terri L. Hommerding, Bruce P. Candlin & Associates, 380 St. Peter Street, Suite 603, St. Paul, MN 55102 (for respondent)

 

W. Paul Otten, Law office of Otten & Associates, 108 Professional Plaza, 1601 East Highway 13, Burnsville, MN 55337 (for intervenor)

 

            Considered and decided by Worke, Presiding Judge; Willis, Judge; and Minge, Judge.

U N P U B L I S H E D  O P I N I O N

MINGE, Judge

            Appellant challenges summary judgment dismissing his claims.  Because the district court did not err in determining that appellant was a trespasser, that respondent only owed appellant a limited duty, and that appellant’s claims were barred by the statute of repose in Minn. Stat. § 541.051, subd. 1(a) (2004), we affirm. 

FACTS

            Appellant Kevin Jackson and some friends were in downtown Minneapolis on a fall evening.  Because he had forgotten his identification, Jackson asked a man on the street to buy him cigarettes.  When Jackson took out his money, the man grabbed the money and ran.  Jackson chased the man, eventually reaching a parking lot on property owned by respondent ReliaStar Life Insurance Company (“ReliaStar”).  Not realizing he had come to the ledge of a downward-sloping driveway leading to an underground loading dock, Jackson hopped over a short hedge of bushes, fell as he landed several feet below, and was severely injured. 

            The driveway and building were constructed in 1964.  There are four no-trespassing signs near ReliaStar’s building.  There are security guards on duty at the building at all times and one of their duties is to keep trespassers off the premises.  No evidence was produced of other incidents involving the ledge and falling onto the driveway.  Jackson presented the statements of an expert that the driveway was defective because it should have had a guardrail at the ledge and that the lack of an adequate guardrail directly contributed to Jackson’s injuries.

            The district court granted summary judgment against Jackson on four grounds: (1) the statute of repose in Minn. Stat. § 541.051, subd. 1(a) (2004), barred his claims because the building was substantially completed more than ten years prior to his injury; (2) the exception to that statute for negligent maintenance, operation, and inspection did not apply; (3) even if Jackson’s negligence claim was not time-barred, he was a trespasser and the limited duty that landowners owe to trespassers was satisfied; and (4) Jackson’s claims based on violations of the Uniform Building Code failed because the applicable edition of the code did not require guardrails on ReliaStar’s driveway and because those claims were also time-barred by the same statute of repose.  This appeal followed.     

D E C I S I O N

            When reviewing summary judgment, an appellate court asks: (1) whether there are any genuine issues of material fact; and (2) whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  Summary judgment is proper when the evidence in the record shows there is no genuine issue of material fact and either party is entitled to a judgment as a matter of law.  Minn. R. Civ. P. 56.03; DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997).  “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, 566 N.W.2d at 71.

I.

            The first issue is whether the district court erred in granting summary judgment on  Jackson’s negligence claim on the basis that Jackson was a trespasser.  In general, a landowner owes no duty to trespassers.  Croaker ex rel. Croaker v. Mackenhausen, 592 N.W.2d 857, 860 (Minn. 1999).  “A trespasser is ‘one who enters or remains on the [premises] without the express or implied consent of the possessor of land.’”  Reider v. City of Spring Lake Park, 480 N.W.2d 662, 666 (Minn. App. 1992) (quoting Rieger v. Zackoski, 321 N.W.2d 16, 20 (Minn. 1982)), review denied (Minn. April 13, 1992).

            Jackson argues that a factual issue exists whether he was impliedly invited onto respondent’s property, but does not provide any factual support for this claim.  Jackson ran across respondent’s property in hot pursuit of someone who took his money.  Jackson had no business to conduct on the property and entered the darkened, landscaped grounds of an office building late at night, well after business hours.  In his haste, he did not observe the no-trespassing signs posted on the property.  The district court did not err in concluding that Jackson was a trespasser and that this was not a factual issue. 

            Jackson argues that he was not a trespasser under Minneapolis City Ord. § 385.380, prohibiting trespassing.  That ordinance creates a petty offense of trespass and

requires that the landowner or an agent be aware of the trespass before a person is charged with being a trespasser.  Id.  To avoid prosecuting unintentional or harmless trespassers, this criminal ordinance restricts who is considered a trespasser.  There is not a parallel policy of favoring civil suits by uninvited visitors that justifies such a stricter test.  See Sirek by Beaumaster v. State, Dep’t of Natural Res., 496 N.W.2d 807, 809-10 (Minn. 1993).  Jackson provides no support for the position that a local criminal ordinance can define a trespasser for the purposes of a negligence claim.      

            Minnesota courts have adopted the Restatement (Second) of Torts on a landowners’ limited duty to trespassers:

A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area of the land, is subject to liability for bodily harm caused to them by an artificial condition on the land, if

(a) the condition

(i) is one which the possessor has created or maintains and

(ii) is, to his knowledge, likely to cause death or seriously [sic] bodily harm to such trespassers and

(iii) is of such a nature that he has reason to believe that such trespassers will not discover it, and

(b) the possessor has failed to exercise reasonable care to warn such trespassers of the condition and the risk involved.

 

Id. at 810 (quoting Restatement (Second) of Torts § 335 (1965)).  ReliaStar owed Jackson a limited duty only if these requirements are met. 

            ReliaStar claims that no duty exists under this standard for several reasons.  First, the only evidence that Jackson identifies that ReliaStar knew or should have known of a constant intrusion is that there are several no-trespassing signs on the property and that security guards monitor the property for trespassers.  This is negative evidence of “knowledge.”  These protective measures are not sufficient evidence that ReliaStar knew or should have known of constant intrusion on the area near the driveway.  

            Second, there is an issue whether the unprotected ledge and drop off constitute a condition that is likely to cause death or serious bodily harm.  Courts have generally required that such conditions be inherently dangerous, such as high-voltage electrical lines.  Johnson v. State, 478 N.W.2d 769, 773 (Minn. App. 1991) (citing Restatement (Second) of Torts § 335 (1965)), review denied (Minn. Feb. 27, 1992).  Further, the condition must be “likely” to cause death or serious bodily harm.  Id.  In Johnson, the court held that a raised joint in a sidewalk was not “likely” to cause the required harm: “The remote possibility that death or serious bodily harm could result any time a person falls does not make a raised sidewalk joint rise to the level of an inherently dangerous condition.”  Id.  Similarly, in Stiele ex rel. Gladieux v. City of Crystal, the court held that a three- to four-foot-high signpost next to a satellite restroom also did not meet this requirement of dangerousness.  646 N.W.2d 251, 255 (Minn. App. 2002).  In Stiele, the court also noted that the landowner must know of the condition’s potential for causing harm and that since the city had received no prior complaints, it was not aware of the danger.  Id.

            Here, the allegedly dangerous condition is a sloping driveway leading down to a loading dock.  The driveway itself is not inherently dangerous.  No other incidents of injuries due to the driveway were reported to ReliaStar.  There is not sufficient evidence to raise a factual dispute as to whether the ledge of the driveway was a condition likely to cause death or serious bodily harm, or that ReliaStar was aware of any danger.

            A third challenge that Jackson faces under the Restatement rule is establishing that ReliaStar had reason to believe trespassers would not discover the condition.  Restatement (Second) of Torts § 335(a) iii (1965).  This standard depends on whether the condition was obvious, not on whether the injured party actually saw the danger.  Steinke v. City of Andover, 525 N.W.2d 173, 177 (Minn. 1994).  A condition is not concealed if a brief inspection would reveal it.  Schaffer v. Spirit Mountain Recreation Area Auth., 541 N.W.2d 357, 360 (Minn. App. 1995).  In Steinke, the court held that a drainage ditch was not hidden because it was not obstructed from view.  525 N.W.2d at 177.  The court noted a trespasser’s “duty to be aware of his surroundings” and further noted that Steinke was traveling at an excessive rate of speed.  Id.

            Here, the most cursory inspection would have revealed the driveway.  Chasing a thief did not free Jackson to ignore his surroundings.  He took the risks of hot pursuit.  It is not reasonable to require landowners to so maintain their property that even well-intended, nighttime trespassers who are chasing thieves are protected from the risk of falling.  There is not sufficient evidence to raise a factual dispute over whether ReliaStar had reason to believe trespassers would discover the driveway. 

            Because Jackson failed to present sufficient evidence to create a jury question whether ReliaStar breached any duty to him as a trespasser, the district court did not err in granting summary judgment on Jackson’s negligence claim on the basis of Jackson’s status as a trespasser.[1]             

II.

            The second issue is whether the district court erred in granting summary judgment on Jackson’s negligence per se claim based on alleged violations of the Uniform Building Code.[2]  This claim is based on strict liability and differs from the duty owed to trespassers.  Although we did not reach the issue of the application of the statute of repose in Minn. Stat. § 541.051, subd. 1(a) (2004), to Jackson’s negligence claim, we do consider the application of the statute to Jackson’s negligence per se claim. 

            Minn. Stat. § 541.051, subd. 1(a), provides a ten-year statute of repose for claims based on improvements to real property:

Except where fraud is involved, no action by any person in contract, tort, or otherwise to recover damages for any injury to property, real or personal, or for bodily injury or wrongful death, 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.

 

The statute goes on to provide an exception to the statute of repose for certain claims against owners:

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) (2004). 

            The Minnesota Supreme Court recently interpreted subdivision 1(c) in Olmanson v. LeSueur County, 693 N.W.2d 876, 880-81 (Minn. 2005).  In that case, the owner of a golf course built a culvert under a road to allow golfers to pass through.  693 N.W.2d at 878.  More than ten years later, Olmanson was injured when his snowmobile struck the culvert.  Id. at 878-79.  The court discussed a landowner’s duty to inspect property for unreasonable risks and either repair the conditions or provide warnings.  Id. at 880-81.  The court held that the exception in Minn. Stat. § 541.051, subd. 1(c), allowed Olmanson’s claims based on the landowner’s “ordinary landowner liability for negligent maintenance, operation, and inspection of real property improvements” to proceed as an exception to the statute of repose.  Id. at 881-82.        

            Here, the ReliaStar driveway was substantially completed in 1964.  Jackson was injured in 2001.  Jackson claims ReliaStar’s building should have complied with provisions of the Uniform Building Code adopted in 1979 and 1997, years after the driveway was completed, that require guardrails for certain ledges and ramps.  Olmanson involved a culvert where the changing weather and other conditions created an unsafe situation, a use (snowmobiling) that is commonplace, especially in ditches and on golf courses, and modest, effective corrective action like signage.  See 693 N.W.2d at 878.  Jackson argues ReliaStar should have made structural retrofits such as guard rails along a driveway ramp.  Unlike Olmanson, such improvements cannot be characterized as part of a landowner’s duty to maintain, operate, and inspect his property with reasonable care.  Jackson demands compliance with building code changes adopted after the driveway was constructed.  This goes beyond the exception to the statute of repose found in Minn. Stat. § 541.051, subd. 1(c).  Further, in Boyum v. Main Entree, Inc., this court held that because a negligence per se claim based on a building code required a stricter standard of care than common law negligence, the negligence exception to the statute of repose should not apply.  535 N.W.2d 389, 392 (Minn. App. 1995), review denied (Minn. Sept. 28, 1995). 

            We conclude Jackson’s negligence per se claim is barred by the ten-year statute of repose in Minn. Stat. § 541.051, subd. 1(a), and that the district court did not err in granting summary judgment. 

            Affirmed.