A06-67

Adam Joseph Collins,

Respondent,

vs.

City of Hastings,

Appellant.

Filed December 19, 2006

Reversed and remanded

Willis, Judge

Dakota County District Court

File No. C5-05-7686

James S. Ballentine, William R. Sieben, Schwebel, Goetz & Sieben, P.A., 5120 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402-2246 (for respondent)

Ryan M. Zipf, League of Minnesota Cities, 145 University Avenue West, St. Paul, MN 55103-2044 (for appellant)

Considered and decided by Willis, Presiding Judge; Shumaker, Judge; and Crippen, Judge.*

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

WILLIS, Judge

Appellant city challenges the denial of its motion for summary judgment, arguing that the district court erred by not applying recreational-use immunity to respondent’s personal-injury claim. We reverse and remand for the entry of judgment for appellant.

FACTS

On June 19, 2004, respondent Adam Collins was playing in a softball tournament held annually at Veterans Park in Hastings. Veterans Park, which is leased from its owner by appellant City of Hastings, is the site of, on average, more than 500 adult and youth softball and baseball games each year. During his third game that day, Collins was playing first base. There was a chain-link fence approximately 25 feet from and parallel to the first-base line. When Collins attempted to catch a foul fly ball, his cleats became entangled in the fence, causing Collins to break his ankle.

Collins testified at his deposition that he looked at the fence after he fell and saw that it was “sticking out 4 to 5 inches” at the point where he made contact. Collins also testified that he “thought” he would have seen the bulge in the fence if he had inspected it before the game. In addition, Collins offered the affidavit of David Daubert, a professional engineer who inspected the fence. Daubert stated that the fence had “been crushed down so that it [was] no longer vertical at the bottom” and was “exposed to being stepped on.” Daubert concluded that the “fence was in poor and dangerous condition,” that the fence’s “sagging . . . did not occur in one season,” and that the “fence had been in a poor condition for some time.” Although a large number of players use the ballpark, the city had received no prior complaints about, or report of an injury caused by, the bulge in the fence.

The city moved for summary judgment, arguing that it has recreational-use immunity under Minn. Stat. § 466.03, subd. 6e (2004); that Collins assumed the risk of injury; and that when Collins joined the league, he signed a waiver of any claims against the city arising from any injury he may suffer while participating as a player. Relying on Lishinski v. City of Duluth, 634 N.W.2d 456 (Minn. App. 2001), review denied (Minn. Jan. 15, 2002), the district court denied the city’s motion, determining that there was a question of material fact regarding whether the bulge in the fence was likely to cause death or serious bodily injury. While the district court also rejected the city’s two other grounds for summary judgment, the city appeals only from the district court’s denial of summary judgment on the city’s claim of recreational-use immunity.

D E C I S I O N

When a district court denies a motion for summary judgment that is based on a governmental-immunity claim, this court has jurisdiction to review that order as an exception to the general rule that an order must dispose of the entire case before it may be appealed. Anderson v. City of Hopkins, 393 N.W.2d 363, 364 (Minn. 1986). On appeal from a denial of summary judgment, this court determines whether a review of the record shows that there is any genuine issue of material fact and whether the district court erred in its application of the law. See Hedglin v. City of Willmar, 582 N.W.2d 897, 901 (Minn. 1998). Whether a governmental unit is protected by immunity is a question of law, which this court reviews de novo. Id.

A party asserting immunity under a statute has the burden of establishing the facts necessary to satisfy the statute’s requirements. Fear v. Indep. Sch. Dist. No. 911, 634 N.W.2d 204, 209 (Minn. App. 2001), review denied (Minn. Dec. 12, 2001). When a defendant has met this burden, the plaintiff must, in turn, establish a question of material fact arising from each of the statute’s elements in order to survive summary judgment. Zacharias v. Minn. Dep’t of Natural Res., 506 N.W.2d 313, 320 (Minn. App. 1993), review denied (Minn. Nov. 16, 1993). To establish a question of material fact, a plaintiff may not rest on mere averments but rather must offer sufficiently probative evidence on each element that would allow reasonable people to disagree as to the resolution of the element. DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997). The evidence is viewed in a light most favorable to the non-movant. Hedglin, 582 N.W.2d at 901.

There is no dispute that this case is governed by Minn. Stat. § 466.03, subd. 6e (2004), commonly known as the recreational-use-immunity statute. Under this statute, a municipality is not liable for a claim arising from its construction, operation, or maintenance of a public park unless the municipality would be liable as a private person to a trespasser. Minnesota has adopted the test set forth in Restatement (Second) of Torts § 335 (1965) to determine the liability of a possessor of land to a trespasser. See Green-Glo Turf Farms, Inc. v. State, 347 N.W.2d 491, 494 (Minn. 1984). Under section 335, a possessor of land is liable to a trespasser if (1) the possessor of land creates or maintains an artificial condition; (2) the artificial condition, “to [possessor of land’s] knowledge,” is likely to cause death or serious bodily injury; (3) the possessor of land reasonably believes that the trespasser will not discover the artificial condition; and (4) the possessor of land negligently failed to warn the trespasser of that condition’s existence. Restatement (Second) of Torts § 335. To overcome a municipality’s claim of immunity, a plaintiff must establish all four of the elements of section 335. Stiele ex rel. Gladieux v. City of Crystal, 646 N.W.2d 251, 255 (Minn. App. 2002). Here, the district court found there was a question of material fact regarding the second element but did not address the other three elements.

The city concedes that the bulge in the fence was an artificial condition that it maintained and that it did not warn Collins of the existence of the bulge. Instead, the city argues that the bulge in the fence was not a condition that satisfied the second element of section 335 because it was not likely to cause death or serious bodily injury as a matter of law, and the city did not have actual knowledge that it was dangerous. The city also argues that the bulge in the fence was not a condition that satisfied the third element of section 335 because, in any event, it was not concealed.

To be concealed, the condition at issue must be “of such a nature that [the possessor of land] has reason to believe that . . . trespassers will not discover it.” Restatement (Second) of Torts § 335(a)(iii). In applying this provision, Minnesota courts have held that the test is not whether the plaintiff actually saw the condition but rather whether the plaintiff could have seen it. Steinke v. City of Andover, 525 N.W.2d 173, 177 (Minn. 1994); see Unzen v. City of Duluth, 683 N.W.2d 875, 880 (Minn. App. 2004) (stating that the test is whether the dangerous condition is visible), review denied (Minn. Oct. 27, 2004). If a brief inspection would have revealed the danger, the condition is not concealed. Martinez v. Minn. Zoological Gardens, 526 N.W.2d 416, 419 (Minn. App. 1995), review denied (Minn. Mar. 29, 1995); see also Johnson v. State, 478 N.W.2d 769, 773 (Minn. App. 1991) (holding that a sidewalk raised one and one-half inches at a joint was not concealed), review denied (Minn. Feb. 27, 1992).

Collins argues that there is a fact question regarding “whether [he] should have discovered the hazardous condition caused by the negligent maintenance of the fence during the heat of the competitive softball game.” We disagree. Collins testified at his deposition that he thought he would have seen the bulge in the fence if he had inspected the fence before the game, and he cites no authority for his “in-the-heat-of-the-game” argument. A possessor of land is entitled to assume that a trespasser “‘will realize that no preparation has been made for [his] reception and will, therefore, be on the alert to observe the conditions which exist upon the land.’” Sirek v. State, Dep’t of Natural Res., 496 N.W.2d 807, 810 (Minn. 1993) (quoting Restatement (Second) of Torts § 335, cmt. f). Thus, Collins was required to be alert to the conditions around him, even during the softball game.

Collins points to this court’s decision in Lishinski v. City of Duluth, 634 N.W.2d 456 (Minn. App. 2001), review denied (Minn. Jan. 15, 2002), to support his argument that whether the bulge in the fence was concealed is a fact question because “Collins was not required to inspect the entire fence” for defects. In Lishinski, an in-line skater was killed when she fell from a park path while skating; the path had a blacktop surface at the top of a hill but, as the path curved around a stage in the park, its surface became pavement stone. Id. 457–58. We affirmed the district court’s denial of summary judgment, determining that there was a question of material fact regarding whether the transition from blacktop to pavement stone was visible—because the view of the transition was allegedly blocked by the stage from the plaintiff’s position at the top of the hill. Id. at 460. In reaching this conclusion, we reaffirmed that whether the condition was visible was to be assessed objectively. Id. at 461.

The issue of concern in Lishinski, however, does not exist here. Collins has not claimed that anything obstructed his view of the bulge in the fence. Thus, Lishinski is inapposite.

Because Collins admitted that he would have seen the fence’s condition if he had inspected it, he has not raised a question of material fact regarding whether the condition of the fence was visible. Because we conclude that, as a matter of law, the bulge in the fence was not concealed, we do not reach the city’s other arguments. We reverse and remand for the entry of judgment for the city.

Reversed and remanded.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.