Jean Bruns, Appellant, vs. Pioneer Enterprises, et al., Respondents, and Jean Bruns, Appellant, vs. Coborn's Incorporated, d/b/a Coborn's grocery store, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-02-2085

 

 

Jean Bruns,

Appellant,

 

vs.

 

Pioneer Enterprises, et al.,

Respondents,

and Jean Bruns,

Appellant,

 

vs.

 

Coborn's Incorporated, d/b/a Coborn's grocery store,

Respondent.

 

Filed August 5, 2003

Affirmed

Anderson, Judge

 

Stearns County District Court

File No. C80145122 and CX023368

 

David W. Schneider, Dawn M. Weber, 706 First Street South, P.O. Box 776, Willmar, MN  56201 (for appellant)

 

William L. Davidson, Kevin W. Rodlund, Lind, Jensen, Sullivan & Peterson, P.A., 150 South Fifth Street, Suite 1700, Minneapolis, MN  55402 (for respondent Pioneer Enterprises et al.)

 

Dyan J. Ebert, Quinlivan & Hughes, P.A., 400 South First Street, Suite 600, P.O. Box 1008, St. Cloud, MN  56302-1008 (for respondent Coborn's Incorporated)

 

            Considered and decided by Anderson, Presiding Judge, Shumaker, Judge, and Halbrooks, Judge.

U N P U B L I S H E D  O P I N I O N

 

G. BARRY ANDERSON, Judge

 

            Appellant challenges the district court's summary judgment in favor of respondents.  We affirm because respondents neither knew nor had reason to know of the dangerous condition and appellant has failed to establish a prima facie case for negligence on the part of respondents.

FACTS

            At approximately 11:25 p.m. on January 8, 2000, appellant Jean Bruns; her daughter, Carey Giese; and her son-in-law, Tyson Giese went to Coborn's grocery store in Sauk Rapids, Minnesota.  Carey and Tyson Giese entered the store while appellant remained outside to finish her cigarette.  When appellant entered the store and began walking down an aisle in the vegetable department she "slipped instantly."  Appellant fell to the floor, bumped her head, and sustained bruises to her legs and arms.  Prior to falling, appellant did not see any water on the floor and was not distracted by anything.  Appellant further stated that after falling, she found herself lying in a pool of water roughly a half an inch deep and 10 feet by 10 feet in surface area, with her clothes "sopping." 

Tyson Giese stated that the water in which appellant was lying when he found her was somewhere between a quarter of an inch and a half an inch deep but gave no estimate as to the puddle's size.  Carey Giese described the puddle of water as "as wide as this table" extending "probably six feet[.]"  Giese also noted that there was enough water that she "had to be very careful walking through it."  The manager on duty at Coborn's that night stated that the floor in the area where appellant had fallen glistened "like it was a little wet."

Respondent Pioneer Enterprises (Pioneer) contracts with Coborn's to provide janitorial services for the Sauk Rapids store.  Keith Johnson, who is employed by Pioneer, had previously mopped portions of the aisle in which appellant fell.  But Johnson noted that he typically only mops under the vegetable bins where the floor scrubber, which dries the floor after scrubbing it, does not fit.  In addition to the possibility that the floor was wet because it had been recently mopped, misters hanging over the vegetable bins were identified as a possible source of the water.  

            Claiming negligence and seeking damages, appellant filed separate suits against Pioneer and Coborn's.  The two suits were consolidated and both Pioneer and Coborn's moved for summary judgment.  The district court concluded that because the pool of water was an open and obvious hazard, neither Pioneer nor Coborn's had a duty to warn appellant of its presence and granted respondents' motion for summary judgment.  This appeal follows.

D E C I S I O N

            Summary judgment is appropriately granted when there are no genuine issues of material fact and a party is entitled to judgment as a matter of law.  Minn. R. Civ. P. 56.03.  When reviewing a district court's grant of summary judgment, this court determines whether there exist 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).  To survive summary judgment, a party must demonstrate that genuine issues of material fact exist that would establish a prima facie claim of negligence. Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995).  Mere denials, general assertions, and speculation are not sufficient to raise an issue of material fact.  Gutbrod v. County of Hennepin, 529 N.W.2d 720, 723 (Minn. App. 1995).  Appellate courts "view the evidence in the light most favorable to the party against whom summary judgment was granted."  Lubbers,539 N.W.2d at 401.

To demonstrate a prima facie case of negligence, appellant must put forth evidence of: (1) a duty owed by respondents; (2) a breach of that duty; (3) the breach of that duty is the proximate cause of appellant's injury; and (4) appellant did in fact suffer injury.  Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 157 (Minn. 1982).

            "The rule of liability of a shopkeeper to his customers is well settled:" a store's premises must be maintained in "reasonably safe condition for the use of all persons expressly or impliedly invited to enter."  Messner v. Red Owl Stores, Inc., 238 Minn. 411, 413, 57 N.W.2d 659, 661 (1953).  Unless the puddle in which appellant fell resulted from acts of respondents' employees, respondents would be negligent only if their employees failed to make safe "the dangerous condition after they knew, or in the exercise of reasonable care should have known, that the condition existed."  Id.

There is no question that respondents owed a duty to maintain the premises in a reasonably safe condition.  See id. (stating that store premises must be maintained in a reasonably safe condition).  But in order to establish a prima facie case for negligence, appellant must present evidence that respondents breached that duty.  Hudson, 326 N.W.2d at 157.  To do so, appellant must first establish that respondents had notice of the puddle.  See Messner, 238 Minn. at 413, 57 N.W.2d at 661 (absent proof of creation of the hazard by defendant's employees, defendant is negligent only if it had notice of the hazard).

            Here, there was no evidence that respondents created, knew, or should have known of the puddle of water.  Indeed, appellant can only guess as to the cause of the puddle.  Based on the lack of evidence establishing or even hinting at notice to the respondents, it would be speculative and conjectural to conclude that respondents or their employees created the puddle or knew of its existence.  See id. at 238 Minn. 413, 57 N.W.2d at 661 (holding that landowner breached no duty owed to invitee absent evidence, beyond mere speculation, that landowner created or knew of the dangerous condition).

            Therefore, although the district court granted summary judgment because it found the puddle in which appellant fell to be an open and obvious hazard, because appellant has failed to establish that a material fact issue exists concerning the issue of notice, we do not find it necessary to reach the "open-and-obvious" analysis.  Regardless of the character of the puddle, respondents would be liable to appellant only if they knew of, or by exercise of reasonable care, would have discovered the condition and should have realized that it involved an unreasonable risk of harm.  Hanson v. Christensen, 275 Minn. 204, 212, 145 N.W.2d 868, 874 (1966). 

Without deciding whether the puddle was an open and obvious condition, we conclude that summary judgment was properly granted because, on this record, there existed no material issue of fact as to whether respondents had notice of the puddle and without evidence of such notice, appellant has failed to establish a prima facie case of negligence. 

Affirmed.