Jenell Casarez, Appellant, vs. David Klema, et al., Respondents.

Jenell Casarez, Appellant, vs. David Klema, et al., Respondents. A04-1744, Court of Appeals Unpublished, May 31, 2005. This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

  STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1744

 

Jenell Casarez,
Appellant,
 
vs.
 
David Klema, et al.,
Respondents.

 

Filed May 31, 2005 Reversed and remanded

Peterson, Judge

 

Ramsey County District Court

File No. C40311095

 

Jeffrey M. Ellis, Jeffrey M. Ellis, PLLC, 331 Ridgewood Avenue, Suite B, Minneapolis, MN  55403 (for appellant)

 

Katherine A. McBride, Meagher & Geer, P.L.L.P., 33 South Sixth Street, Suite 4200, Minneapolis, MN  55402 (for respondents)

 

            Considered and decided by Peterson, Presiding Judge; Klaphake, Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

 

In this appeal from a summary judgment in favor of respondent-homeowners based on the district court's determination that appellant could not establish a breach of the homeowners' duty of care, appellant argues that she presented sufficient evidence to establish that respondents breached their duty of care.  We reverse and remand.

FACTS

            After socializing together earlier in the evening, respondents David and Amy Klema invited their neighbor, appellant Jenell Casarez, to their home.  At some point, appellant and Amy Klema needed to use the bathroom, but because David Klema was using the only bathroom in the house, the women decided to relieve themselves in a laundry tub in the basement.  The record is unclear whose idea it was to use the laundry tub.  Amy Klema did not warn or tell appellant not to sit on the tub.  According to appellant, she pushed herself up on top of the tub, and after Amy Klema also got up on the tub, it fell over.  The falling tub crushed the tips of appellant's fingers and caused serious injuries.    

            Appellant brought a negligence action, alleging that respondents had a duty "to use reasonable care to protect [her] from unreasonable risk of harm caused by the condition of the premises or caused by activities on the premises."  Appellant also asserted that respondents breached their duty "by negligently failing to adequately secure the washtub, by inviting or allowing [appellant] to sit on the tub, and/or by using the tub."  In their answer, respondents denied the allegations and asserted multiple affirmative defenses, including contributory negligence and assumption of the risk.

            According to the parties' depositions, the laundry tub was made of concrete, weighed between 200 and 300 pounds, and sat on metal legs.  Amy Klema painted the tub approximately one month before this incident occurred and stated in her deposition that there was surface rust on the metal legs.  Amy Klema also stated that she had sat on the tub before and had also sat on a similar laundry tub in appellant's home.

Appellant acknowledged that the laundry tub was not designed or manufactured to be used as a toilet and admitted that she was intoxicated at the time of the injury.  She also acknowledged that she was not aware of any imperfections in the laundry tub.  After the accident, respondents disposed of the tub.

Respondents brought a motion for summary judgment, arguing that because there was no special relationship between the parties, they owed no legal duty to appellant to prevent her from using the laundry tub as a toilet.  The district court concluded that respondents owed a duty of care to appellant, but because there was not a defect in the laundry tub and appellant admitted using the tub for a purpose other than its intended purpose, appellant cannot establish a breach of any duty owed to her.  The district court granted respondents summary judgment, and this appeal followed.

D E C I S I O N

"We review a district court's grant of summary judgment to determine whether there are any genuine issues of material fact and whether the court erred in its application of the law."  Louis v. Louis, 636 N.W.2d 314, 318 (Minn. 2001).  We view the evidence in the light most favorable to the party against whom summary judgment was granted.  Id.

The initial inquiry in a negligence action against a landowner is whether the landowner owed the entrant a duty.  Baber v. Dill, 531 N.W.2d 493, 495 (Minn. 1995).   In its memorandum, the district court stated, "As in all cases, the possessor of the property has a duty to use reasonable care to protect an invitee from unreasonable risk of harm caused by the condition of the premises or the activities on the premises."  Respondents dispute that they had a legal duty.  But because respondents did not file a notice of review, this issue is not properly before us, and we will not address it.  See Minn. R. Civ. App. P. 106 ("respondent may obtain review of a judgment or order entered in the same action which may adversely affect respondent by filing a notice of review"); Arndt v. Am. Family Ins. Co., 394 N.W.2d 791, 793 (Minn. 1986) (affirming this court's refusal to address issue raised by respondent where respondent failed to file a notice of review); Olson v. Lyrek, 582 N.W.2d 582, 584 n.1 (Minn. App. 1998) (declining to review finding adverse to respondent where no notice of review was filed), review denied (Minn. Oct. 20, 1998).  

After describing the duty that a possessor of property owes an invitee, the district court stated,

In this case, however, there is no claim that [appellant] was injured as a result of any defect on the premises.

 

The key to the analysis is whether or not reasonable care is used by the [respondents] or did they create an unreasonable risk of harm for [appellant] because of the condition of the washtub. Since there's no defect and [appellant] admits that they were using the washtub for purposes other than what was intended[,] [appellant] cannot establish a breach of any duty that was owed by the [respondents] to the [appellant].

 

Appellant argues that the district court erred in concluding that she cannot establish a breach of any duty that respondents owed her.  In a negligence action, whether a breach of a duty occurred is ordinarily a question for the fact-finder.  Wear v. Buffalo-Red River Watershed Dist., 621 N.W.2d 811, 815 (Minn. 2001) (citing Smith v. Carriere, 316 N.W.2d 574, 575 (Minn. 1982), review denied (Minn. May 15, 2001). 

A defendant in a negligence action is entitled to summary judgment when the record reflects a complete lack of proof on any of the four elements necessary for recovery: (1) the existence of a duty of care, (2) a breach of that duty, (3) an injury, and (4) the breach of that duty being the proximate cause of the injury.

 

Louis, 636 N.W.2d at 318. 

For respondents to be entitled to summary judgment because appellant cannot establish a breach of duty, the record must reflect a complete lack of proof of a breach of duty.  We understand the district court's memorandum to mean that there is a complete lack of proof of a breach of duty because there is no evidence that there was a defect in the laundry tub and there is no evidence that the laundry tub was being used for an intended purpose.

We disagree with the district court's determination that there is a complete lack of proof of a breach of duty because there is no evidence that there was a defect in the laundry tub.  Although appellant stated during her deposition that she was not aware of any imperfections in the laundry tub, she alleged in her complaint that respondents breached their "duty of care by negligently failing to adequately secure the washtub," and she stated in her response to respondents' interrogatories that "[t]he tub was not secured and tipped over."  Viewing appellant's deposition testimony and interrogatory answer in the light most favorable to appellant, we conclude that even if there was not a defect in the laundry tub itself, there is a fact issue whether respondents breached their duty to use reasonable care to protect appellant by failing to secure the laundry tub.

We also disagree with the district court's determination that there is a complete lack of proof of a breach of duty because there is no evidence that the laundry tub was being used for an intended purpose.  In a negligence action by an invitee against a landowner, the principal issue is whether the landowner acted "as a reasonable person in view of the probability of injury to persons entering upon the property."  Peterson v. Balach, 294 Minn. 161, 174, 199 N.W.2d 639, 647 (1972).  "After all pertinent factors are considered, depending upon the circumstances of each case, the factfinders will be asked to determine if liability exists for damages sustained by an entrant."  Id., 199 N.W.2d at 648.  Whether the laundry tub was being used for an intended purpose may well be a pertinent factor to be considered by the fact-finder when determining whether respondents acted as reasonable people, but it cannot be said as a matter of law that because the laundry tub was not being used for an intended purpose, respondents did not breach their duty of care.  It is a fact issue whether respondents acted as reasonable people in permitting, or in failing to prevent, the laundry tub to be used as it was used.

Because there are genuine issues of material fact with respect to respondents breaching their duty of care, the district court erred by granting summary judgment.

Reversed and remanded.