This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-97-115

Mildred Wendt,

Appellant,

vs.

Sojourn,

Respondent,

Presbyterian Homes of Minnesota, Inc.,

Respondent,

Yellow Taxi Service Corp.,

Respondent,

Metropolitan Council,

Defendant.

Filed August 19, 1997

Affirmed

Schumacher, Judge

Hennepin County District Court

File No. 9514346

Randall J. Fuller, Robert F. Mannella, Babcock, Locher, Neilson & Mannella, 118 East Main Street, Anoka, MN 55303 (for appellant)

Bradley M. Jones, Joseph W.E. Schmitt, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for respondent Sojourn)

Richard P. Mahoney, Victor E. Lund, Mahoney, Dougherty and Mahoney, P.A., 801 Park Avenue, Minneapolis, MN 55404 (for respondent Presbyterian Homes)

John F. Angell, Stich, Angell, Kreidler, Brownson & Ballou, P.A., The Crossings, Suite 120, 250 Second Avenue South, Minneapolis, MN 55401 (for respondent Yellow Taxi)

Considered and decided by Kalitowski, Presiding Judge, Randall, Judge, and Schumacher, Judge.

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

SCHUMACHER, Judge

On appeal from summary judgment, appellant Mildred Wendt argues that the district court erred in determining that the nature and condition of the area where she fell was open and obvious. We affirm.

FACTS

Respondent Sojourn, a provider of day care services for senior citizens, leased its facility from respondent Presbyterian Homes of Minnesota, Inc. Wendt, a Sojourn client, fell and suffered injuries while exiting the Sojourn facility to enter a waiting taxi cab. The entranceway was a raised platform about seven inches above the parking lot surface. At her deposition, Wendt testified that after exiting the facility she walked toward the taxi cab without seeing that there was a curb. She testified that "I stepped like I was going to step on the platform or on the level, and I went down."

Wendt sued Sojourn and Presbyterian Homes for negligent maintenance of the facility's entrance. Wendt sued respondent Yellow Taxi Service Corp. for negligence in failing to help her exit the facility and enter the taxi cab. Wendt also sued Metropolitan Council, alleging that it hired Yellow Taxi and negligently supervised the taxi cab company.

The district court granted summary judgment for Sojourn, Presbyterian Homes, and Metropolitan Council but denied summary judgment for Yellow Taxi. Pursuant to Minn. R. Civ. P. 54.02, the district court ordered the entry of final judgment in favor of Sojourn, Presbyterian Homes, and Metropolitan Council, finding no just reason for delay. Wendt appeals the summary judgments in favor of Sojourn and Presbyterian Homes.

D E C I S I O N

On appeal from summary judgment, we determine whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). We 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).

The district court determined that, based on the undisputed facts, the nature and condition of the area where Wendt fell was open and obvious. We agree. A landowner has no duty to warn against risks that are open and obvious. Wiseman v. Northern Pac. Ry. Co., 214 Minn. 101, 107, 7 N.W.2d 672, 675 (1943). The risk of falling because of the curb was such an obvious danger that Presbyterian Homes and Sojourn had no duty to warn. See Baber v. Dill, 531 N.W.2d 493, 496 (Minn. 1995) (landowner has no duty "where the anticipated harm involves dangers so obvious that no warning is necessary") (citing Peterson v. W.T. Rawleigh, Co., 274 Minn. 495, 497, 144 N.W.2d 555, 558 (1966)).

Wendt claims that she did not see the curb before falling, and thus a fact issue exists as to whether she was aware of the danger.

Where the allegations permit the construction, or the evidence permits the inference, that the party lacked knowledge or was not aware of the danger, a fact issue is raised for the jury.

Wiseman, 214 Minn. at 107, 7 N.W.2d at 675. At her deposition, however, Wendt testified that, at the time she stepped off the platform and fell, she was looking at her feet. Wendt's own testimony does not permit the inference that she was unaware of the curb and the risk of falling.

Affirmed.