Christian Erin Krueger, Appellant, vs. City of Oakdale, 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This opinion will be unpublished and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

C8-02-2149

 

Christian Erin Krueger,

Appellant,

 

vs.

 

City of Oakdale,

Respondent.

 

Filed June 24, 2003

Affirmed

Kalitowski, Judge

 

Washington County District Court

File No. C9020194

 

Roy D. Zimmer, 14300 Nicollet Court, Suite 111, Burnsville, MN 55306 (for appellant)

 

Brian H. Gaviglio, League of Minnesota Cities, 145 University Avenue West, St. Paul, MN 55103 (for respondent)

 

            Considered and decided by Kalitowski, Presiding Judge, Minge, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Christian Krueger challenges the district court's determination that respondent City of Oakdale was entitled to recreational-use immunity from his negligence action.  Respondent filed a notice of review contending the district court erred in ruling that statutory immunity and primary assumption of risk do not apply.  We affirm.

D E C I S I O N

            On appeal from summary judgment, the appellate court will address "whether there are genuine issues of material fact and whether the district court erred in applying the law."  Watson v. Metro. Transit Comm'n, 553 N.W.2d 406, 411 (Minn. 1996) (citation omitted).  The application of immunity is a legal question reviewed de novo.  Johnson v. State, 553 N.W.2d 40, 45 (Minn. 1996).

            Generally, a municipality is liable for its torts and the torts committed by its officers, agents, and employees who are "acting within the scope of their employment or duties whether arising out of a governmental or proprietary function."  Minn. Stat. § 466.02 (2002).  Under an exception to this liability, municipalities are immune for acts arising out of the use of parks and recreation areas.  Minn. Stat. § 466.03, subd. 6e (2002).  Despite this immunity, municipalities remain liable "for conduct that would entitle a trespasser to damages against a private person."  Id.; Green-Glo Turf Farms, Inc. v. State, 347 N.W.2d 491, 495 (Minn. 1984) (applying recreational-use immunity against state).

            Appellant concedes that recreational-use immunity applies here, but argues that there are genuine issues of material fact precluding summary judgment on the applicability of the trespasser exception to immunity.  In analyzing this issue, Minnesota courts apply the standard set out in Restatement (Second) of Torts § 335 (1965):

                        A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area of land, is subject to liability 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 seriously [sic] 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.

 

Johnson v. Washington County, 518 N.W.2d 594, 599 (Minn. 1994) (citing Restatement (Second) of Torts § 335).  Under this standard, the landowner is liable "only for failing to exercise reasonable care to warn trespassers about hidden, artificial dangers created or maintained by the landowner."  Sirek v. Dep't of Natural Resources, 496 N.W.2d 807, 810 (Minn. 1993) (citation omitted).  The landowner does not have a duty to eliminate such conditions, but only to give trespassers "adequate warning."  Id. (citation omitted).  The plaintiff has the burden of showing all the elements in section 335 have been met in order to invoke liability.  Stiele v. City of Crystal, 646 N.W.2d 251, 255 (Minn. App. 2002).

            Here, the condition that caused appellant's injury was a concrete anchor for a fencepost, to which the outfield fence of a city softball field was attached.  The first element in dispute is whether, to the knowledge of the possessor of land, the concrete anchor was "likely to cause death or serious[] bodily injury to such trespassers."  Restatement (Second) of Torts § 335(a)(ii).  Appellant contends that there are genuine issues of material fact as to both whether the concrete anchor was likely to cause death or serious injury to the plaintiff and whether the respondent had knowledge that it was likely to do so.  We disagree.

            Conditions meeting the standard of being likely to cause death or serious injury "generally have inherently dangerous propensities, such as a high voltage electrical wire."  Johnson v. State, 478 N.W.2d 769, 773 (Minn. App. 1991) (citing Restatement (Second) of Torts § 335 (illustration)), review denied (Minn. Feb. 27, 1992).  In Johnson, this court held that a raised sidewalk joint did not meet this standard.  Id.  Similarly, this court held that a signpost located next to a satellite restroom, which was three to four feet in height and painted green, did not constitute such a condition.  Stiele, 646 N.W.2d at 253, 255.

            As the district court noted, the concrete anchor was partially above ground and supported a fencepost dividing the concrete so that it was partly on the outfield side of the fence and partly outside it.  Thus it is more similar to the conditions in Johnson and Stiele and very unlike a high-voltage electrical wire.  The anchor did not constitute a condition likely to cause serious bodily harm or death.  Further, there is no evidence in the record that the city or the softball league had received any notice that would have shown that the condition was likely to cause serious bodily harm or injury.  See id. (noting that record demonstrated city had received no previous notice that signpost posed a danger).  Consequently, we conclude the district court properly determined that appellant failed to show that to the city's knowledge, the anchor was likely to cause death or serious bodily harm.

            Because appellant has failed to meet the element of showing that the city had knowledge that the condition was likely to cause death or serious bodily injury, precluding liability, we need not address whether the city had "reason to believe that such trespassers will not discover" the condition.  Restatement (Second) of Torts § 335(a)(iii).

            Finally, because we hold that recreational-use immunity applies, we need not reach the issues raised in respondent's notice of review as to whether statutory immunity or the assumption-of-risk theory applies.

            Affirmed.

 

*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.