Judy S. Black, et al., Appellants, vs. Cargill, Incorporated, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

Judy S. Black, et al.,

Appellants,

vs.

Cargill, Incorporated,

Respondent.

Pipestone County District Court

File No. C398165

John Mark Wilka, Wilka, Haugen & Kirby, P.C., 311 East 14th Street, Sioux Falls, SD  57104; and

Timothy J. Wilka, Timothy J. Wilka, P.C., 101 South Main Avenue, Suite 402, Sioux Falls, SD  57104 (for appellants)

George G. Eck, Sarah Michelle Their, Dorsey & Whitney, LLP, 220 South Sixth Street, Suite 1300, Minneapolis, MN  55402 (for respondent)

            Considered and decided by Crippen, Presiding Judge, Amundson, Judge, and Anderson, Judge.

            Appellants Judy Black and her husband challenge the trial court's summary judgment in favor of respondent Cargill.  Concluding that Cargill did not use the public highway in an extraordinary way, the trial court determined that Cargill did not owe a duty of care to appellants.  Because a study of the record confirms the trial court's analysis, we affirm.             

In March 1997, appellant Black was involved in a car accident on Highway 23 near Pipestone.  Appellant was traveling southbound on Highway 23 and collided with a semi-truck pulling out of the drive to a grain-elevator operation of Cargill.  The truck driver had an obstructed view of traffic when he pulled onto Highway 23 because trucks were parked on the shoulder of the highway, waiting to enter the Cargill facility.  The exiting truck driver depended on the hand signals of a trucker waiting to enter the facility for the status of the oncoming traffic. On this day, trucks were parked on both the northbound and southbound shoulders of the highway.

            Appellants sued Cargill, claiming that Cargill's use of Highway 23 created a traffic hazard. They asserted that Cargill breached its duty of care by not providing adequate parking facilities on its own property.  They offered observations that truckers parked their trucks on the shoulder of Highway 23; their case including truck-driver testimony that a backup of trucks occurs approximately three times per year, during harvest time in the fall, after the first of the year, and in early spring.  Cargill argued that it did not owe a duty of care regarding the use of highway shoulders by truckdrivers, asserting, inter alia, that appellants' evidence did not establish that trucks were commonly parked on the highway waiting to enter the Cargill facility.

On appeal from summary judgment, this court must determine if there are any "genuine issues of material fact and whether the trial court erred in its application of the law."  Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn. 1989) (citation omitted).  This court reviews 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) (citation omitted).  In order to successfully oppose a motion for summary judgment, the non-moving party must demonstrate that there are specific facts in existence that create a genuine issue for trial.  Erickson v. General United Life Insurance Co., 256 N.W.2d 255, 259 (Minn. 1977).

            To maintain a claim for negligence, appellants must show the existence of a duty of care.  Johnson v. State, 553 N.W.2d 40, 49 (Minn. 1996) (stating essential elements of negligence claim).  If there are no facts in the record that give rise to a genuine issue for trial on this element of the negligence claim, summary judgment is appropriate.  Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995).

This case requires that we determine whether Cargill owed a duty of care to persons off its premises who suffered injuries caused by Cargill's customers.  The parties do not dispute the underlying facts of this case, but they do dispute the legal significance of the facts.  The only issue before this court is whether the trial court erred in finding that Cargill did not owe a duty of care to appellants.  "Where the facts are not in controversy, the existence of duty is a question of law."  Lundman v. McKown, 530 N.W.2d 807, 820 (Minn. App. 1995) (citation omitted), review denied (Minn. May 31, 1995). 

"The common-law test of duty is the probability or foreseeability of injury to the plaintiff." Austin v. Metropolitan Life Ins. Co., 277 Minn. 214, 217, 152 N.W.2d 136, 138 (1967).  A fundamental principle underlying duty is the ability to control the activity or the persons involved.  See Fjerstad v. Heartland Racing Ass'n, Inc., 563 N.W.2d 87, 89 (Minn. App. 1997) (event sponsor did not owe a duty to an injured patron because the sponsor did not own or control the land where the accident occurred).

Appellant Black's accident occurred on a public highway abutting Cargill's property.  Generally, landowners are not liable for naturally occurring hazards created on abutting public land.  See Rudd v. Lyceum Dramatic Prods., Inc., 250 Minn. 328, 331, 85 N.W.2d 61, 63 (1957) (abutting owner of property owes no duty to pedestrians to keep the sidewalk safe from naturally occurring hazards of ice and snow).  But the supreme court has recognized that an abutting landowner may owe a duty of care to protect against hazards on public property if the landowner's use of public property is extraordinary in "kind" or "degree."  Graalum v. Radisson Ramp, Inc., 245 Minn. 54, 60, 71 N.W.2d 904, 908-09 (1955).

In Graalum, the defendant owned a parking ramp, and its patrons were required to drive over public sidewalks to enter and exit the ramp.  Id. at 55, 71 N.W.2d at 906. A patron had pulled out of the parking garage and was stopped on the sidewalk waiting for traffic to clear, forcing a pedestrian to walk on a slanted portion of the driveway that was covered with snow and ice.  Id. at 56, 71 N.W.2d at 906.   The pedestrian slipped on the ice, suffered an injury, and sued the ramp owner. Id.  The court held that an "extraordinary" use arises, justifying imposition of a duty on the abutting owner, where normal use occurs "in such unusual volume and under such conditions that [it] unduly interferes with a safe and normal use of the affected portion of the sidewalk."  Id. at 61, 71 N.W.2d at 909.  The movement of vehicles over an abutting sidewalk may become so heavy, the court observed, "that a sidewalk ceases to perform its normal function as a reasonably safe route for pedestrian travel."  Id. 

The supreme court in Graalum concluded that the parking ramp owner's use of the public sidewalk was "extraordinary" both in "degree" because approximately 570 cars drove over the sidewalk daily, and in "kind" because the cars used the public way as a temporary parking place.  Id. at 60-62, 71 N.W.2d at 908-910.   The court concluded, given these circumstances, that the ramp owner had a duty to provide a safe passage for the public.  Id. at 63, 71 N.W.2d at 910.

In determining that Cargill did not make an extraordinary use in degree of the shoulder, the trial court observed that although appellants asserted that traffic was "regularly backed up over a period of at least ten years," they only had evidence to show that it happened "three times a year."  Thus, the court concluded that the situation did not "rise to the frequency and regularity of that in Graalum." 

Appellants assert that the trial court erred in its summary judgment, arguing that they presented evidence that demonstrated Cargill's extraordinary use of Highway 23.  But the record demonstrates that appellants provided very limited evidence of Cargill's use of Highway 23.  

Appellants presented testimony that trucks parked on the shoulder  "quite frequently" and that the parking was a "common occurrence."  None of appellants' witnesses was able to describe the number of times that the trucks were parked on the side of the road.  These general statements about Cargill's alleged frequent use are insufficient to bring the case within the parameters of the doctrine announced in Graalum; they do not create a genuine fact question as to whether Cargill's use of the property was extraordinary in degree.  See Moundsview Indep.  Sch. Dist. No. 621 v. Buetow & Assocs., Inc., 253 N.W.2d 836, 838 (Minn. 1977) (nonmoving party must demonstrate at time summary judgment motion is made that specific facts exist that create genuine issue for trial and cannot rely on general statements of fact to oppose motion). 

In Graalum,cars drove in and out of the parking garage, over public sidewalks, approximately 570 times per day.  See Graalum, 245 Minn. at 61-62, 71 N.W.2d N.W.2d at 909.  Here, appellants submitted evidence that trucks were backed up on the highway three times per year.  This, too, is merely a generalized statement and does provide sufficient evidence to demonstrate that Cargill's use was extraordinary; there is no evidence as to the number of days or hours in which the back-up occurs or the nature or extent of the back-up on these occasions.  Appellants did not establish the existence of a genuine issue of fact to support her claim of extraordinary use in degree.

Neither could appellants establish that Cargill's use of Highway 23 was extraordinary in "kind."  In holding that Cargill did not make an extraordinary use of the shoulder, the court relied on the fact that the trucks did not use the part of the road designated for actual driving.  In Graalum,the patrons of the parking garage were parked on the sidewalk, forcing pedestrians to leave the part of the sidewalk ordinarily devoted to pedestrian traffic, to walk onto a sloped ramp.  Id. at 62, 71 N.W.2d at 910.  The court in Graalum noted that the sidewalk had become a temporary parking place and concluded that this use was extraordinary in kind because the ramp owner had commandeered the sidewalk as part of the parking facilities, placing an undue burden on normal pedestrian traffic attempting to use the same property.  Id.  at 62, 71 N.W.2d at 909.

In contrast, there is no evidence that those driving on Highway 23 regularly encountered obstacles in the traveled portion of the highway.  As already observed, appellants merely show that trucks were backed up on the highway three times per year.  More to the point, although the trucks parked on the shoulder arguably obstructed the view of a driver pulling out of the Cargill facility on the day of this accident, this single blockage of the road is not the kind of use that by itself, without repetition, rises to the level of extraordinary use.  See id., 245 Minn. at 61, 71 N.W.2d at 909 (noting that the installation of a manhole for the reception of coal, a private cellarway, vault, and raised approach to a building entrance are the type of singular events that create an extraordinary use in kind of a sidewalk).

Appellants failed to present facts that, if proven, would establish that Cargill used Highway 23 in an extraordinary way in either degree or in kind.  Without this showing, appellants are unable to show that Cargill owed her a duty of care.

Appellants ask this court to enlarge the off-premises liability doctrine developed in Graalum, arguing that abutting landowners have a heightened duty of care to the public even without a showing of extraordinary use.  Appellants claims that the configuration of Cargill's driveway and the limited capacity of Cargill's parking lot present a unique condition on Cargill's premises that is hazardous to traffic on the adjacent highway.  Citing numerous cases, appellants rely heavily on four from other jurisdictions, urging this court to recognize a duty beyond that established in Graalum.  See Bober v. New Mexico State Fair, 808 P.2d 614, 620-21 (N.M. 1991) (duty found when use of single exit from the fairgrounds caused a concentrated stream of traffic and resulted in an accident with a car traveling on abutting highway).  See also Johnson v. Bobbie's Party Store, 473 N.W.2d 796, 801-02 (Mich. Ct. App. 1991) (duty found when landowner repeatedly allowed cars to park on a portion of land known to block the view of traffic on the abutting street; Langen v. Rushton, 360 N.W.2d 270, 275 (Mich. Ct. App. 1984) (duty found when tree on owner's property blocked view of traffic); Boudreaux v. Sonic Indus., Inc.,729 P.2d 514, 516  (Okla. Ct. App. 1986) (duty found when landowner placed a permanent sign on property, blocking view of abutting roadway);.

Three of these cases are distinguishable because they recognize that an abutting landowner may be responsible for off-premises accidents if the accident was the result of a hazardous condition located on the landowner's property, such as a parked car, a sign, or a tree.  In contrast, the accident here appears to have been caused by an obstruction of view caused by trucks parked on the highway and not on Cargill's property.

In addition, to the extent that appellants argue that not only physical obstructions on the premises but also the design and configuration of the property may give rise to a duty, too few facts were shown to establish that such a duty exited.  From the record, we are unable as a matter of law to conclude that Cargill's driveway, parking lot, or business activities presented an unreasonable and foreseeable risk of harm to motorists traveling on Highway 23.  We decline to depart from the duty analysis established in Graalum by extending the scope of off-premises liability in Minnesota.  Summary judgment was appropriate.

Affirmed.