Hennepin County District Court

File No. PI961321

John G. Gisselquist, 2599 Mississippi Street, New Brighton, MN 55112 (for Respondent)

Patricia Y. Beety, Carla J. Heyl, 145 University Avenue West, St. Paul, MN 55103-2044 (for Appellant)

Considered and decided by Toussaint, Chief Judge, Kalitowski, Judge, and Holtan, Judge.

The City of Brooklyn Center appeals from the denial of its summary judgment motion, arguing the district court erred in ruling (1) that it is not entitled to statutory recreational use immunity pursuant to Minn. Stat. § 466.03, subd. 6e (1996), and (2) that respondent Helen C. Shaffer assumed the risk of any injuries sustained. We reverse.

Shaffer commenced an action for damages , alleging serious permanent injuries resulting from the fall. Brooklyn Center moved for summary judgment, arguing it was entitled to statutory recreational use immunity and that Shaffer assumed the risk. The district court denied Brooklyn Center's motion without comment. Brooklyn Center appeals.

1. Brooklyn Center argues it is immune from liability pursuant to the recreational use immunity of Minn. Stat. § 466.03, subd. 6e (1996). We agree.

Generally, municipalities are liable for their torts. Minn. Stat. § 466.02 (1996). There are exceptions to this rule:

Section 466.02 does not apply to any claim enumerated in this section. As to any such claim every municipality shall be liable only in accordance with the applicable statute and where there is no such statute, every municipality shall be immune from liability.

Minn. Stat. § 466.03, subd. 1 (1996). Municipalities are immune from

[a]ny claim based upon the * * * operation, or maintenance of any property owned * * * by the municipality that is intended or permitted to be used * * * as an open area for recreational purposes, or for the provision of recreational services, * * * if the claim arises from a loss incurred by a user of * * * recreation property or services. Nothing in this subdivision limits the liability of a municipality for conduct that would entitle a trespasser to damages against a private person.

Id., subd. 6e.

It is undisputed that Brooklyn Center is a municipality that operates and maintains the public pool located in the Brooklyn Center Civic Center. Shaffer was attending "open pool" time for the public when the injury occurred. The term "recreation" is not defined in the statute, but one definition means "play." The American Heritage Dictionary of the English Language 1511 (3d ed. 1992). Shaffer was at the pool to get some exercise, in other words, to recreate. The pool is a "recreational area" for purposes of the statute. Based on these facts, Brooklyn Center is immune from Shaffer's claim under section 466.03, subdivision 6e.

2. Despite its statutory immunity, Brooklyn Center would be liable to the extent a private person would be liable to a trespasser. Minn. Stat. § 466.03, subd. 6e. The standard to be applied is the general trespasser standard of Restatement (Second) of Torts § 335 (1965). Johnson v. Washington County, 518 N.W.2d 594, 599 (Minn. 1994). Section 335 provides that a possessor of land is subject to liability for bodily harm caused to a trespasser 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 serious[] 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.

Sirek v. State, Dep't of Natural Resources, 496 N.W.2d 807, 810 (Minn. 1993). Under this standard,

"a landowner will be liable only for failing to exercise reasonable care to warn trespassers about hidden, artificial dangers created or maintained by the landowner."

Johnson, 518 N.W.2d at 599 (quoting Sirek, 496 N.W.2d at 810).

[W]hether a condition was hidden depends on whether the condition was visible, not on whether the injured party actually saw the danger.

Steinke v. City of Andover, 525 N.W.2d 173, 177 (Minn. 1994). If "a brief inspection would have revealed the condition, it is not concealed." Johnson v. State, 478 N.W.2d 769, 773 (Minn. App. 1991) (citation omitted), review denied (Minn. Feb. 27, 1992). Moreover, trespassers are required to be alert to conditions existing on the land. Sirek, 496 N.W.2d at 812 (citing Restatement (Second) of Torts § 335 cmt. f (1965)). The plaintiff bears the burden of establishing that all of the elements of section 335 have been met in order to defeat an immunity claim. Martinez v. Minnesota Zoological Gardens, 526 N.W.2d 416, 418 (Minn. App. 1995), review denied (Minn. Mar. 29, 1995).

There is no evidence to indicate the wet floor was hidden. There were signs warning of the wet tiles, and Shaffer knew the floors were wet because of the nearby pool. The wet tiles were plainly visible to anyone in the area. Based on the facts in the record, Brooklyn Center owed no duty to Shaffer.

3. Brooklyn Center also argues that Shaffer's action is barred by primary assumption of the risk. We agree.

Primary assumption of the risk arises

[w]here parties have voluntarily entered a relationship in which plaintiff assumes well-known, incidental risks. As to those risks, the defendant has no duty to protect the plaintiff and, thus, if the plaintiff's injury arises from an incidental risk, the defendant is not negligent.

Olson v. Hansen, 299 Minn. 39, 44, 216 N.W.2d 124, 127 (1974). If the plaintiff's injuries do not arise from such risks, however, the defendant does have a duty and may be found negligent. Wagner v. Thomas J. Obert Enters., 384 N.W.2d 477, 481 (Minn. App. 1986), rev'd on other grounds, 396 N.W.2d 223 (Minn. 1986). Primary assumption of the risk is an absolute bar to the plaintiff's recovery. Armstrong v. Mailand, 284 N.W.2d 343, 348 (Minn. 1979).

The elements of primary assumption of the risk are whether a person had (1) a knowledge of the risk, (2) an appreciation of the risk, and (3) a choice to avoid the risk, but voluntarily chose to take the risk. Andren v. White-Rodgers Co., 465 N.W.2d 102, 104 (Minn. App. 1991), review denied (Minn. Mar. 27, 1991).

Here, Shaffer stated in her deposition that she knew the floor was always wet and that wet floors around pools can be slippery. Shaffer stated she saw signs that warned of the wet and slippery floors Shaffer also stated she had walked over that area many times. Based on these facts, Shaffer assumed the risk of walking on the wet floor tiles.

Reversed.

[ ]^* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.