Sandra L. Jones, Appellant, vs. Evenstar Book Store, Inc., et al., Respondents, Robert L. Dalton d/b/a Prairie Star Coffeehouse, Respondent.

Sandra L. Jones, Appellant, vs. Evenstar Book Store, Inc., et al., Respondents, Robert L. Dalton d/b/a Prairie Star Coffeehouse, Respondent. A05-863, Court of Appeals Unpublished, January 10, 2006.

This opinion will be unpublished and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

A05-863

 

Sandra L. Jones,

Appellant,

 

vs.

 

Evenstar Book Store, Inc., et al.,

Respondents,

 

Robert L. Dalton d/b/a Prairie Star Coffeehouse,

Respondent.

 

Filed January 10, 2006

Affirmed

Stoneburner, Judge

 

Hennepin County District Court

File No. PI045753

 

Harry A. Sieben, Jr., Jeffrey M. Montpetit, Sieben, Grose, Von Holtum & Carey, LTD, 900 Midwest Plaza East, 800 Marquette Avenue, Minneapolis, MN 55402 (for appellant)

 

Raymond L. Tahnk-Johnson, 2600 Eagan Woods Drive, Suite 110, Eagan, MN 55121 (for respondent Evenstar)

 

Sylvia Ivey Zinn, Maureen A. Hill, Brendel & Zinn, Ltd., 8519 Eagle Point Boulevard, Suite 110, Lake Elmo, MN 55042 (for respondent Dalton)

 

            Considered and decided by Toussaint, Presiding Judge, Stoneburner, Judge, and Huspeni, Judge.*

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            On appeal from a grant of summary judgment in this slip-and-fall case, appellant argues that the district court erred as a matter of law in holding that the ice that caused the fall resulted from a natural condition and that respondents, owners and occupants of property abutting a public sidewalk, had no duty to appellant.  Because we conclude that the circumstantial evidence in this case was insufficient to raise a jury question about whether the ice that caused appellant's fall was caused by an artificial condition, we affirm.

FACTS

 

Appellant Sandra Jones, a patron of respondent Evenstar Book Store, Inc., slipped and fell on ice on the sidewalk[1] as she left the bookstore.  The building in which the bookstore is a tenant is owned by respondent Joseph Brown.  Respondent Robert L. Dalton, d/b/a Prairie Star Coffeehouse, is the business tenant adjacent to the bookstore.  Sophie Firethunder was a retail clerk working at the bookstore on the day appellant fell. 

The district court granted summary judgment to all respondents concluding that none of the respondents owed a duty to appellant regarding the condition that caused the fall.  This appeal followed.

D E C I S I O N

 

"On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law."  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  This court also "must view 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).

Respondents moved for summary judgment on the basis that they owed no duty to appellant to maintain the municipal sidewalk in a safe condition.  To establish negligence, appellant had to show that respondents had a legal duty, respondents breached that duty, appellant was injured, and respondents' breach of duty was the proximate cause of appellant's injury.  Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 157 (Minn. 1982).  The existence of a legal duty is generally an issue to be decided as a matter of law.  Larson v. Larson, 373 N.W.2d 287, 289 (Minn. 1985).  Breach of duty, injury, and causation are questions of fact generally not susceptible to summary adjudication.  Ill. Farmers Ins. Co. v. Tapemark Co., 273 N.W.2d 630, 633-34 (Minn. 1978).  But "the mere existence of a scintilla of evidence in support of the [nonmoving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party]" on each essential element of the claim for which the nonmoving party bears the burden of proof at trial.  DLH, Inc. v. Russ,566 N.W.2d 60, 71 (Minn. 1997) (citations omitted).

            In Minnesota,

the duty of keeping a sidewalk in a reasonably safe condition for travel is upon the city or municipality and not on the abutting owners or occupants, and the abutting owner or occupant is not liable for any defect therein  . . . unless they created the defect or dangerous condition or were negligent in maintaining in a dangerous and defective condition facilities erected on the sidewalk for their convenience or for the benefit of their building. Persons who own or occupy property abutting on a sidewalk are not liable to pedestrians for injuries sustained in consequence of stumbling or slipping on ridges or hummocks of snow and ice which form from natural causes on the sidewalk.

 

Sternitzke v. Donahue's Jewelers, 249 Minn. 514, 519-20, 83 N.W.2d 96, 100 (1957) (emphasis added).  But, "where the accumulation . . . is due to artificial causes, the landowner may become liable . . . [if the landowner] increased the hazard that normally existed."  Lenz v. City of Minneapolis, 283 Minn. 180, 183, 167 N.W.2d 22, 25 (1969). 

[O]ne who so constructs or maintains a structure upon his premises as to cause an artificial discharge or accumulation of water upon a public way, which, by its freezing, makes the use of the way dangerous, will be held liable to one who, being rightfully upon the way and exercising due care, is injured in consequence of such dangerous condition.

 

Id. 

            In Graalum v. Radisson Ramp, Inc., 245 Minn. 54, 71 N.W.2d 904 (1955), the supreme court noted another exception to the general rule that abutting landowners are not liable for accidents caused by the condition of the public sidewalks.

[W]here an abutting owner or occupant makes an extraordinary use of a sidewalk for his own convenience, he owes a duty to the public to exercise due care in seeing that the affected portion of the sidewalk is maintained in a safe condition for the passage of pedestrians.

 

Id. at 60, 71 N.W.2d at 908.  To be extraordinary, the use must be of "such a nature, in kind or in degree, that a condition is created which interferes with, and is in derogation of, normal use of the sidewalk by the public."  Id.at 60-61, 71 N.W.2d at 909.  An extraordinary use may

arise from acts which, though intrinsically consistent with the usual function of a sidewalk or driveway when conducted in a normal manner and context, lose their customary status because they are performed in such unusual volume and under such conditions that they unduly interfere with a safe and normal use of the affected portion of the sidewalk. Vehicular travel over a sidewalk to an abutting occupant's place of business may, periodically or otherwise, become so heavy that a sidewalk ceases to perform its normal function as a reasonably safe route for pedestrian travel.

 

Id.at 60, 71 N.W.2d at 909.  In addition, landowners have a duty to maintain safe access to buildings on their property.  See McIlrath v. College of Saint Catherine, 399 N.W.2d 173, 174 (Minn. App. 1987) (stating that a landowner's exercise of "reasonable care" includes the duty to provide and maintain suitable access to and from buildings on the land).

Appellant contends that she must have slipped on ice that formed from water that dripped from melting snow from the eaves of the building or the awning of the coffeehouse.  She alleged that (1) the defendants caused an "artificial" accumulation of ice and therefore are liable under an exception to the general rule regarding maintenance of the public sidewalks; (2) the defendants made "extraordinary" use of the area in which she fell and therefore had a duty to maintain the sidewalk in a safe condition; and (3) because she was a patron of the bookstore and not a mere pedestrian, the bookstore had a higher duty to provide her with a safe route of access to the store. 

I.          Artificial condition

The district court rejected appellant's argument that respondents were liable for creating an artificial accumulation of water and ice, stating that "where a pool of water is created by melting snow and later forms a patch of ice, the resultant accumulation of ice is entirely natural."  The district court, citing the facts of Olson v. City of Saint James, 380 N.W.2d 555 (Minn. App. 1986), stated that it could not "conceive of any reason for treating ice formed by snow melting and dripping down from eaves or an awning any differently from ice formed by snow melting and flowing down a driveway."  But in Olson, the district court granted a directed verdict to the abutting landowners without objection from the plaintiff, who never argued that ice draining down a driveway onto the sidewalk was an artificial condition caused by abutting landowners.  Id.at 560.  The district court's interpretation of Olson is therefore flawed, and its implied holding that ice formed by snow melting and dripping down from eaves or an awning could not be an artificially created condition is contrary to existing case law.  Numerous cases, from this jurisdiction and others, hold that snow melting and dripping off of various features of a building, which results in freezing ice on the sidewalk, can be anartificial condition making the building owner or occupant liable for the resulting sidewalk hazard.  See generally Annotation, Abutting Owner's Liability for Injury from Ice Formed on Sidewalk by Discharge of Precipitation Due to Artificial Conditions on Premises, 18 A.L.R.3d 428 (1999); Annotation, Liability of Tenant Occupying Abutting Premises for Injury from Ice Formed on Sidewalk by Discharge of Rain or Melted Snow Thereon Because of Condition Existing on Premises, 22 A.L.R.2d 738 (1999).

In Lenz, the supreme court affirmed a judgment entered on a jury verdict that found private landowners liable to a plaintiff for her slip and fall on a public sidewalk, when the evidence showed that

[o]ver the [defendant's] door there was a canopy or overhang protruding over the sidewalk . . . about 2 to 3 feet wide and about 5 or 6 feet in length. . . .  Many times between January and March of 1965 snow on the canopy melted and the water dripped on the doorstep or on the sidewalk, or on both.  The dripping which came from the canopy worsened the condition of the sidewalk and path by the doorstep.

 

283 Minn. at 182-83, 167 N.W.2d at 24.

Although the district court erred in ruling as a matter of law that melting ice formed from water dripping off of a building's features is "entirely natural," summary judgment should nonetheless be affirmed on appeal if there are no disputed material facts and summary judgment was proper, albeit not on the grounds stated by the district court.  See Braaten v. Midwest Farm Shows, 360 N.W.2d 455, 457 (Minn. App. 1985) (stating a decision is not to be reversed if it is correct although based on incorrect grounds).  Based on the record before the district court, we conclude that summary judgment is appropriate because of the lack of sufficient evidence to create a jury question that the ice that caused appellant's fall resulted from water dripping from the eaves of the building or from the coffeehouse awning.

Appellant testified in her deposition that there was no precipitation on the day of her accident, but there was snow along the curb and "over the curb part of the sidewalk."  She did not see any ice or snow on the sidewalk when she entered the bookstore.  She fell when she left the bookstore after taking "maybe two steps out of the door."  Appellant testified that as she lay on the ground after the accident she was looking straight up and someone in the group that had gathered around her pointed at the eaves and said, "[I]t could come right off of those down into the sidewalk."  But appellant did not see any water dripping from the eaves and saw no evidence that water had been dripping from the eaves.  Appellant did not testify that she saw the coffeehouse awning as she looked up, and she made no observation that water dripping from the awning could have caused the ice on which she fell.

Sophie Firethunder testified in her deposition that the day was bright, sunny, and cold and that there was "some snow up on the eaves[2] of the building and in the corners and . . . where the snow plow pushes the snow when it clears the sidewalk or the curb.  I remember there was snow there, and it was pretty bright and sunny out.  So it had started to melt."  She did not see any ice or snow around the doorway to the bookstore when she arrived and saw no need to salt the area.  Firethunder testified that she looked out the window throughout the day and that it did not look like there was any snow on the ingress/egress but that, "it had started probably snowing lightly, and it got heavier . . . it was starting to get colder and darker out and less sunny on our part of the sidewalk.  So I think that contributed to making the ice."  Firethunder answered affirmatively to the question "during the time period that you worked [at the bookstore], you've seen snow accumulate on the eaves, the window sills, and the green awning as well, correct?"  She agreed that she has seen snow melt off a lot of places on the front of the building.  She opined that moisture dripped off of the coffeehouse awning and caused the ice, which was made "extra slippery because there was a little bit of snow."  Firethunder testified that she thought the water that caused the ice came from the awning "because the ice was underneath the awning and that's the only thing I could think of, unless it had run down the building.  But then I would have thought I would have seen like more ice up toward    . . . the building."  Firethunder then clarified that the ice was not directly under the awning but was "a little off to the side of it."  Asked if she had noticed a similar icy spot created by the awning before the day of appellant's fall, Firethunder said, "If I did, it was very rarely . . . .  I don't remember having to salt that spot a lot before or anything."  Firethunder testified that she thought the patch of ice "was a little unusual because it usually didn't gather like that or it wasn't, I guess, a problem."

Joseph Brown, owner of the building, testified that he had never had a problem with moisture or snow dripping from the building.  Lois Pieper, owner of the bookstore, testified that there were "snow plow mountains" by the curb that always created some moisture from melting during the day.  She did not recall Firethunder ever telling her that there had been a problem related to the awning.  Weather records indicated that the day appellant fell was clear with no precipitation in the area.

We recognize that circumstantial evidence may create a material fact question about whether an artificial accumulation of ice was created by water dripping from a building abutting a sidewalk.  See Rudd v. Lyceum Dramatic Prods., Inc.,250 Minn. 328, 334, 85 N.W.2d 61, 65 (1957) (conceding, in a slip-and-fall case in which there had been considerable snowfall and thawing conditions on each of two days preceding the accident, circumstantial evidence of water dripping onto the sidewalk from the lower cornice of a building during thawing periods could permit a jury to conclude that the owners of the building had negligently caused some water to accumulate and freeze on the sidewalk).  But in this case, there is no similar evidence of heavy snowfall followed by significant thawing and no evidence that water dripping from the building or awning had previously created an ice hazard.  The deposition testimony, in this case, created only a scintilla of circumstantial evidence that the patch of ice on which appellant fell was caused by water melting off the building or the awning.  This evidence is insufficient to present a question of fact for determination by a jury, which could only speculate, as did the witnesses, about where the water came from.  Because there is insufficient evidence to show that the ice was caused by an artificial condition attributable to the abutting landowner/occupants, we conclude that summary judgment on the issue of their duty to appellant based on an artificial condition was appropriate.

II.        Extraordinary use

The district court held that appellant "fails to demonstrate that [the bookstore] made ‘extraordinary use' of the sidewalk because she nowhere explains how [the bookstore] made use of the sidewalk which interfered with its normal use as an aid to travel."  In Graalum, an extraordinary use of the public sidewalk was found because the evidence established that approximately 570 cars crossed the public sidewalk to enter the defendant's parking ramp, that the sidewalk was often used as a short-term parking space for cars that were waiting to get into the ramp, and that the defendant's private-duty police officer directed pedestrians onto a different portion of the sidewalk when cars entering the ramp were blocking the public sidewalk.  245 Minn. at 61-63, 71 N.W.2d at 909-10. 

Other examples of conditions that have been found to be extraordinary use include direct interference with the "sidewalk's normal function as an aid to travel," such as when the abutting land owner/occupant installs a manhole or "private cellarway" in the sidewalk or creates a "raised approach or passageway" on the sidewalk.  Id. at 61, 71 N.W.2d at 909 (citations omitted).  Here, there was testimony that (1) the front entrance to the bookstore that faces the abutting public sidewalk is the only entrance that customers use; (2) the customers use the sidewalk on which appellant fell to approach the bookstore entrance; and (3) the bookstore has five to 50 customers per day.  But there was no evidence presented that the bookstore customers' use of the sidewalk was of such a volume or degree that it created an "extraordinary use" impeding the normal flow of pedestrian traffic on the sidewalk.  And there was no evidence that the bookstore made any other use of the public sidewalk.

Appellant refers to the "ingress and egress" that was used in a "monopolistic" manner by the bookstore customers.  She appears to be referring to a covered vestibule area that is adjacent to the public sidewalk, but this is not the location appellant identified as where she slipped and fell.  Even if this vestibule area is used solely by bookstore patrons and employees, there is no evidence that regular use of the public sidewalk as a thoroughfare was prevented or unduly interfered with by virtue of the existence of this area.  Based on the record, we conclude that the district court correctly held that appellant did not establish an extraordinary use of the public sidewalk that would give rise to a duty to maintain the sidewalk.

III.       Duty to a business invitee or patron to maintain the public sidewalks

 

Appellant relies on cases reciting the rule that landowners have a duty to maintain safe access to buildings on their property.  Strong v. Richfield State Agency, Inc., 460 N.W.2d 106, 108 (Minn. App. 1990); McIlrath, 399 N.W.2d at 174 (stating the "proposition that a landowner's exercise of ‘reasonable care' includes the duty to provide and maintain suitable access to and from buildings on the land"); Kantorowicz v. VFW Post, No. 230, 349 N.W.2d 597, 599 (Minn. App. 1984); see also Niemann v. Nw. Coll., 389 N.W.2d 260, 261-62 (Minn. App. 1986), review denied (Minn. Aug. 27, 1986) (stating that "[i]t is elementary that an owner and possessor of land is under an affirmative duty to exercise reasonable care in maintaining his property in a reasonably safe condition for visitors on the premises").  But these cases involved situations in which the ingress/egress or "access" routes at issue were located on privately owned land, not on a public sidewalk.  McIlrath,399 N.W.2d at 173 (plaintiff was walking on a private college campus); Kantorowicz, 349 N.W.2d at 598-99 (plaintiff was climbing an embankment in a private parking lot where there was nopublic sidewalk). 

Appellant has not cited any Minnesota case that holds or even suggests that the duty of private landowners to entrants on the land includes a duty to maintain public sidewalks.  The case law in Minnesota does not support extending a duty to maintain a public sidewalk based on appellant's status as a business visitor.  Strong clearly demonstrates that a property owner's duty of providing safe access to entrants (whether customers/invitees, licensees, etc.) does not mean that the property owner has a duty to keep abutting municipal property free of hazards.  See Strong, 460 N.W.2d at 107 (stating in the syllabus that "[a] property owner has no duty to keep abutting municipal property free of wet leaves unless he either uses his own property in such a way as to cause an artificial accumulation of wet leaves on the abutting property or makes an extraordinary use of the abutting property for his own convenience").  The district court accurately noted that the Strong court applied the Graalum rule (generally no duty of an abutting owner to maintain sidewalks) even though Strong was a patron. 

Additionally, Strong specifically stated that cases like Kantorowicz, which stand for the proposition that landowners have a duty to provide safe access to building entrants, should be distinguished from cases involving accidents on municipal property.  See id. at 108("[R]eliance on Kantorowicz is misplaced.  The accident in Kantorowicz occurred on property owned by respondent VFW, not on municipal property such as here.").  The district court correctly concluded that appellant's status as a patron of the bookstore did not create a duty on the part of respondents to maintain the municipal sidewalk where she fell.

Affirmed.

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

[1] Counsel for appellant has suggested in this appeal that appellant fell on private rather than public property.  Because this issue was not raised in the district court, we decline to address it on appeal.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). 

[2] Later in her deposition, Firethunder clarified that she meant window ledges, not eaves, but said snow "gathers on top of the building, I think, too, because sometimes it runs down the building."