STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1679

Drid Williams,

Appellant,

vs.

James Gang of Minnetonka,

Respondent.

Filed August 7, 2007

Reversed

Ross, Judge

Hennepin County District Court

File No. 27-CV-05-017153

Paul J. Phelps, Matthew E. Steinbrink, Sawicki & Phelps, P.A., 5758 Blackshire Path, Inver Grove Heights, MN 55076 (for appellant)

Sylvia I. Zinn, Maureen A. Hill, Brendel and Zinn. Ltd., 8519 Eagle Point Boulevard, Suite 110, Lake Elmo, MN 55042 (for respondent)

Considered and decided by Peterson, Presiding Judge; Kalitowski, Judge; and Ross, Judge.

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

ROSS, Judge

This case concerns the survival of a negligence claim arising from a patron’s trip and fall at a hair salon. Drid Williams challenges the district court’s grant of summary judgment in favor of James Gang of Minnetonka. Williams sued James Gang for negligence, seeking to recover damages incurred when she tripped over a two-by-four board affixed to the floor. The district court held that the condition was open and obvious so that James Gang owed no duty to warn Williams. Because we find that the record presents material issues of disputed fact regarding whether the obstacle was open and obvious, and also because the district court did not address the additional issue of whether James Gang should have anticipated the potential harm despite its open and obvious nature, we reverse.

FACTS

Some of the facts are disputed, and we assume the following facts only for the purpose of the summary judgment analysis. Drid Williams fractured her wrist when she tripped on a two-by-four board that was anchored to the floor to frame a canvas partition between salon stations at James Gang of Minnetonka where Williams was a patron. Each station has a wall-mounted mirror and hydraulic swivel chair. On the wall of the partitioned station and to the left of the mirror is a hook where each patron may hang her purse or other belongings before having her hair styled.

James Parsons is the owner and proprietor of the James Gang salon. Some years ago, Parsons designed and installed the partitions separating the individual stations for privacy. Each partition consists of four two-by-fours that form a six-foot square frame, with a light-colored canvas cloth bound inside the frame and stretched from top to bottom by metal rods. The partition is held in place perpendicular to the floor with the bottom segment of the frame—one of the four two-by-fours—affixed firmly to the floor. The partition that Williams tripped over forms the left border of the station. It runs parallel to and is estimated to stand between 20 to 35 inches from the left arm of the station’s chair as the chair faces the mirrored wall.

Williams visited the salon in September 2004 for an appointment with Andi Hamilton, her regular hair stylist. When Hamilton finished, Williams swiveled her chair around to face away from the mirrored wall and toward the open end of the station. Williams, who is 77 years old, then stood up, turned toward the mirrored wall to retrieve her purse from the hook beside the mirror, and took a step backwards between the partition and chair to turn around. But Williams’s heel caught the two-by-four that made up the bottom of the partition’s frame. Williams lost her balance and fell backward through the partition onto the floor. The fall broke Williams’s right wrist, which had to be reset and placed in successive casts.

Williams sued James Gang, alleging negligence. At her deposition, Williams testified that at the time of the accident, the canvas cloth inset concealed the bottom two-by-four so that it was not visible, and she could see only the top and two vertical segments of the frame. James Gang produced a photograph of the partition that appears to indicate that the view of all four segments of the frame—including the bottom segment over which Williams tripped—are equally unobstructed by the canvas. But Williams returned to James Gang and concluded that the canvas had been shortened after the accident to expose the bottom two-by-four. Hamilton and Parsons disputed that fact by testifying that the partition has never changed.

James Gang moved for summary judgment, arguing that it owed no duty to warn Williams about the danger from the partition because it was an open and obvious condition. Williams countered that the condition was not open and obvious, and even if it was, James Gang still had a duty to warn because it should have anticipated the potential harm despite the fact that it was open and obvious. The district court granted summary judgment in favor of James Gang, holding that the partition represented an open and obvious condition, in clear view, so that James Gang owed no duty to warn Williams of potential danger. The district court’s order does not address whether James Gang should have anticipated the harm despite the open and obvious nature of the allegedly dangerous condition. This appeal follows.

D E C I S I O N

Williams asks this court to reverse the district court’s summary judgment decision. Summary judgment is appropriate when, based on the pleadings, discovery, and affidavits filed with the court, there are no genuine issues of material fact and either party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. On appeal from summary judgment, we review de novo whether there are any genuine issues of material fact and whether the district court erred in its application of the law. Prior Lake Am. v. Mader, 642 N.W.2d 729, 735 (Minn. 2002). We view the evidence in the light most favorable to the party against whom the district court granted summary judgment. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). Summary judgment is inappropriate when the evidence might lead reasonable persons to different conclusions concerning material facts. DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997).

Williams’s only claim is negligence. A defendant in a negligence action is entitled to summary judgment when the record reflects a complete lack of proof on any essential element of the claim. Gradjelick v. Hance, 646 N.W.2d 225, 230 (Minn. 2002). To establish negligence, a plaintiff must demonstrate that the defendant owed her a duty of care, that the defendant breached this duty, and that the breach was the proximate cause of injury to the plaintiff. State Farm Fire & Cas. v. Aquila, Inc., 718 N.W.2d 879,887 (Minn. 2006). Whether a legal duty exists is generally a question of law for the court to determine. Louis v. Louis, 636 N.W.2d 314, 318 (Minn. 2001). A land possessor has a duty to use reasonable care for the safety of entrants invited onto the property. Id. A land possessor, however, generally does not owe a duty to an entrant when the danger of a condition is open and obvious to the entrant. Baber v. Dill, 531 N.W.2d 493, 495-96 (Minn. 1995). But the exception to this general principle is that the possessor is not relieved of a duty if he should anticipate the harm despite the entrant’s knowledge or the obviousness of the danger. Id. This exception applies in situations in which, for example, a distracting circumstance would tend to cause an entrant to overlook the open and obvious danger. See Krengel v. Midwest Automatic Photo, Inc., 295 Minn. 200, 206, 203 N.W.2d 841, 845 (1973) (noting that distracting circumstances are factors that may excuse a plaintiff’s failure to watch where he was stepping).

The district court concluded that James Gang owed no duty to Williams because the two-by-four secured to the floor was “open and obvious, in clear view, and did not present an unreasonable risk of danger.” The test for whether a dangerous condition is obvious “is not whether the injured party actually saw the danger, but whether it was in fact visible.” Louis, 636 N.W.2d at 321. And Williams testified that although she noticed the partition, she could not see the bottom two-by-four that she tripped on because the canvas cloth concealed it from view. James Gang contests this fact, pointing to the post-accident photograph of the partition and to witness testimony that the partition’s construction never changed between the time of the accident and the photograph. But Parsons’s affidavit asserts only that the photograph “accurately depict[s] the area of [Williams’s] fall as it existed on September 14, 2004.” (Emphasis added.) It does not assert that the photograph, which was taken after the accident, accurately depicts the partition itself in its condition at the time of the accident. And even if it had more precisely supported James Gang’s contention that the bottom two-by-four was open to view at the time of the accident, the proposition would still directly conflict with Williams’s assertion that she did not see the two-by-four because the canvas concealed it. This conflicting testimony concerning the condition of the partition on the date of the injury creates a material fact dispute and precludes a determination as a matter of law that the danger was open and obvious.

And even if the undisputed facts established that the dangerous condition was open and obvious, James Gang would not be relieved of its duty if it nevertheless should have anticipated the harm despite the openness and the obviousness of the danger. Baber, 531 N.W.2d at 495-96. The district court did not address this exception. James Gang asserted at oral argument that Williams raised this issue for the first time on appeal. But our reading of the record indicates that Williams indeed raised the issue in opposition to the summary-judgment motion. Given the very narrow pathway between the partition and the chair, and the assertion that patrons regularly use this narrow alley to reach the area where they place their belongings on the hook, whether James Gang should have anticipated the harm despite the allegedly open nature of the risk also is a question that must be resolved before judgment may be entered for James Gang. Because the district court has not yet addressed this issue, we offer no opinion whether it may be decided as a matter of law.

We hold that fact disputes prevent summary judgment concerning whether the allegedly dangerous condition was open and obvious, and James Gang is also not entitled to summary judgment without a determination regarding whether a reasonable landowner would have anticipated the injury.

Reversed.