This opinion will be unpublished and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

CX-97-1794

Merlin Nelson,

Appellant,

vs.

City of Roseau,

Respondent.

Filed March 31, 1998

Affirmed

Klaphake, Judge

Roseau County District Court

File No. C2-97-106

Merlin B Nelson, HCR 5, Box 141A, Roseau, MN 56751 (appellant pro se)

Carla J. Heyl, League of Minnesota Cities, 145 University Avenue West, St. Paul, MN 55103-2044 (for respondent)

Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Randall, Judge.

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

KLAPHAKE, Judge

Appellant Merlin Nelson appeals from summary judgment granted in favor of respondent City of Roseau (city). Because the city is immune from suit under the recreational immunity statute, Minn. Stat. § 466.03, subd. 6e (1996), we affirm.

FACTS

Appellant was injured as he entered a door from the locker room to the ice to coach hockey at the ice arena owned, managed, and operated by respondent city. During renovations to the arena, which were completed before this incident, the city had changed the configuration of steps leading from the locker room to the ice. In order to enter the arena, a person must stoop when going through the door, which is less than standard height. On the other side of the door is an overhead metal extension that was added during the renovations. Although not clearly visible from the locker room side of the door, the extension is visible from the side of the door facing the ice. Appellant had been through this door about 10 times since the renovations, the last time just 15 minutes before the incident. As he stepped on the second step while going through the door to the ice, he hit his head on the metal extension, cracking a vertebra. No other injuries at this location had been reported prior to this incident.

D E C I S I O N

Summary judgment is appropriate where there is no issue of material fact and one party is entitled to judgment as a matter of law. Wartnick v. Moss & Barnett, 490 N.W.2d 108, 112 (Minn. 1992). Because the essential facts are not in dispute, our task is limited to determining whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).

Minn. Stat. § 466.03, subd. 6e (1996) provides:

Any claim based upon the construction, operation, or maintenance of any property owned or leased by the municipality that is intended or permitted to be used as a park, as an open area for recreational purposes, or for the provision of recreational services, or from any claim based on the clearing of land, removal of refuse, and creation of trails or paths without artificial surfaces, if the claim arises from a loss incurred by a user of park and 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.

The facts of this case fall within the broad statutory immunity granted to the city under this statute. The arena is owned and operated by the city; the claim arises from the construction or maintenance of the property; and appellant was a user of the property.

The exception to the rule of immunity is that the municipality owes the same duty to recreational users of its facilities that a private person owes to trespassers. Id. The trespasser standard adopted for use in this state in the case of Green-Glo Turf Farms v. State, 347 N.W.2d 491, 494 (Minn. 1984) follows Section 335 of the Restatement (Second) of Torts, which makes a land possessor who has constant intruders liable

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 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.

Restatement (Second) of Torts § 335 (1965). The injured party has the burden of establishing that each of the elements of Section 335 has been met. Martinez v. Minnesota Zoological Garden, 526 N.W.2d 416, 418 (Minn. App. 1995), review denied (Minn. Jan. 31, 1995).

There is no question that the city knew that the public "constantly intrudes" upon the arena, and that appellant's injury was caused by an artificial condition that the city had created and maintained. However, no evidence was presented showing that the city actually knew that the artificial condition was likely to cause death or serious injury. See Cobb v. State, 441 N.W.2d 839, 841 (Minn. App. 1989) (standard to apply in imputing knowledge to landowner is actual, not constructive, knowledge). No prior injuries had been reported to the city because of the door or step placement, nor is the condition obviously dangerous or likely to cause death or serious bodily damage. See Johnson v. State, 478 N.W.2d 769, 773 (Minn. App. 1991) ("condition [must] be likely to cause serious bodily harm; * * * injury suffered does not define the requirement"), review denied (Minn. Feb. 27, 1992). Further, the condition must be such that trespassers will not readily discover it. See Sirek v. State, 496 N.W.2d 807, 810 (Minn. 1993) (landowner liable only for failure to "warn trespassers about hidden, artificial changes").

The "`test is not whether the injured party saw the danger, but whether it was in fact visible.'" Johnson, 478 N.W.2d at 773 (quoting Munoz v. Applebaum's Food Market, Inc., 293 Minn. 433, 434, 196 N.W.2d 921, 922 (1972)). A dangerous condition is not concealed if an inspection, however brief, would reveal the danger. Watters v. Buckbee, 354 N.W.2d 848, 851 (Minn. App. 1984). Under the facts of this case, any dangerous condition caused by the steps or door was plainly visible and known to appellant from previous entries onto the ice, including the entry that occurred just minutes before the accident. Thus, the statutory exception to the city's immunity for claims arising from recreational use of its ice arena is inapplicable.

Affirmed.