Marlene Frye, Appellant, vs. Huntington Point Apartment Building, et al., defendants and third party plaintiffs, Respondents, vs. Universal Cleaning Services, third party defendant, Respondent, Ritzy Clean, Third Party Defendant.

Marlene Frye, Appellant, vs. Huntington Point Apartment Building, et al., defendants and third party plaintiffs, Respondents, vs. Universal Cleaning Services, third party defendant, Respondent, Ritzy Clean, Third Party Defendant. A05-2356, Court of Appeals Unpublished, June 20, 2006.

This opinion will be unpublished and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

A05-2356

 

Marlene Frye,

Appellant,

 

vs.

 

Huntington Point Apartment Building, et al.,

defendants and third party plaintiffs,

Respondents,

 

vs.

 

Universal Cleaning Services,

third party defendant,

Respondent,

 

Ritzy Clean,

Third Party Defendant.

 

Filed ­­­June 20, 2006

Affirmed

Dietzen, Judge

 

Hennepin County District Court

File No. PI 05-3998

 

William L. Walker, Theodore W. Stephany, Walker Law Offices, P.A., 3112 Hennepin Avenue South, Minneapolis, MN 55408 (for appellant)

 

Timothy J. Leer, Stacey A. Nilsen, Johnson & Condon, P.A., 7401 Metro Boulevard, Suite 600, Minneapolis, MN 55439-3034 (for respondents Huntington Point Apartment Building and Dominium Management Services, Inc.)

 

Paul E.D. Darsow, Jeanette P. Cogelow, Arthur, Chapman, Kettering, Smetek & Pikala, P.A., 500 Young Quinlan Building, 81 South Ninth Street, Minneapolis, MN 55402-3214 (for respondent Universal Cleaning Services)

 

            Considered and decided by Stoneburner, Presiding Judge; Dietzen, Judge; and Harten, Judge.*

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            Appellant challenges the district court's final judgment granting summary judgment in favor of respondents and dismissing her slip-and-fall claim, arguing that genuine issues of material fact regarding respondent's negligence and constructive notice of a dangerous condition preclude summary judgment.  We affirm.

FACTS

Appellant Marlene Frye was a tenant of respondent Huntington Point Apartment Building (Huntington) owned and operated by respondent Dominium Management Services, Inc (Dominium).  Respondent Ritzy Clean, Inc. (Ritzy Clean) was a contractor hired to perform water extraction and carpet cleaning services in the lower level of Huntington Point Apartment.  Ritzy Clean in turn subcontracted respondent Universal Cleaning Services (Universal) to perform these services two to three times per week.

The facts are largely undisputed.  On a morning in January 2004, appellant, who was seven months' pregnant, left her apartment to work out at a recreation room in another apartment building that was part of the same complex.  The apartment building in which appellant resided has an inside foyer and stairs that separate the upstairs and downstairs levels.  The floor of the building consists of a tile surface.

When appellant returned to her apartment building after her workout, she observed a white van and a blue "cable" extending from it into the building.  Appellant testified that the "cable" was "like a hose" because of its similar size, but was not in fact a hose.[1] The van was used to transport a carpet extractor set-up, which included a hydra-master machine, water tanks and hoses, and various tools used to clean carpet and extract water.  Appellant testified that she was careful to avoid any snow on the ground as she approached her apartment building.  

When appellant entered her apartment building, she noticed that the cable extended into the foyer area and down the stairs. The floor mat normally located at the entrance was removed, and there were no warning signs that the floor was wet or slippery.   When appellant approached the top of the stairs and extended her arm to grasp the railing, she was "swept off [her] feet" and fell, landing at the bottom of the stairs.  When appellant sat up, she noticed that she was sitting in a puddle of water and that the backs of her pants and sweatshirt were wet.  Appellant admitted that she did not observe water at the top of the stairs or on the stairs either before, during, or after the fall.

Appellant stated that it was her belief that it was water at the top of the stairs that caused her to slip and fall down the stairs.  She testified, "I don't recall anything being on the stairs . . . [b]ut I assume that there is something on the stairs, because [water] was on the back of my shirt."  She denied tripping on the cable.     

Subsequently, appellant sued Dominium and Huntington, alleging that she slipped and fell as a result of their negligence.  Dominium commenced a third-party action against Ritzy Clean and Universal, alleging that they were responsible for any injuries that appellant incurred.  Huntington and Universal both moved for summary judgment, arguing that appellant did not present any evidence that respondents were negligent and failed to maintain their premises in a reasonably safe condition.  The district court granted summary judgment to respondents, concluding that there was no direct evidence that any of respondents caused water to accumulate at the top of the stairs or that respondents should have known about such a condition.  This appeal follows.

D E C I S I O N

Appellant contends that the district court erred in granting respondents' summary judgment because genuine issues of material fact preclude summary judgment. "A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law."  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  On appeal from summary judgment, this court makes two determinations: (1) whether there are any genuine issues of material fact; and (2) whether the district court erred in its application of the law.  N. States Power Co. v. Minn. Metro. Council, 684 N.W.2d 485, 491 (Minn. 2004).  The reviewing court must view the evidence in the light most favorable to the party against whom summary judgment was granted."  Fabio, 504 N.W.2d at 761. 

"The party opposing summary judgment may not establish genuine issues of material fact by relying upon unverified and conclusory allegations, or postulated evidence that might be developed at trial, or metaphysical doubt about the facts."  Dyrdal v. Golden Nuggets, Inc., 689 N.W.2d 779, 783 (Minn. 2004).  "A party need not show substantial evidence to withstand summary judgment.  Instead, summary judgment is inappropriate if the nonmoving party has the burden of proof on an issue and presents sufficient evidence to permit reasonable persons to draw different conclusions."  Schroeder v. St. Louis County, 708 N.W.2d 497, 507 (Minn. 2006) (emphasis in original).

"A defendant is entitled to summary judgment as a matter of law when the record reflects a complete lack of proof on an essential element of the plaintiff's claim."  Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995).  "The essential elements of a negligence claim are: (1) the existence of a duty of care; (2) a breach of that duty; (3) an injury was sustained; and (4) breach was the proximate cause of the injury."  Id.  It is the plaintiff's burden to establish each of these elements of a negligence claim.  See id. (noting that plaintiff failed to present specific facts giving rise to genuine issue for trial as to causation).

The existence of a legal duty is generally an issue for this court to review as a matter of law.  Louis v. Louis, 636 N.W.2d 314, 318 (Minn. 2001).  A landowner has a duty to use reasonable care to prevent persons from being injured by conditions on the property that present foreseeable risk of injury.  Hanson v. Christensen, 275 Minn. 204, 212, 145 N.W.2d 868, 874 (1966).  "Reasonable care includes the duty to inspect and repair the premises and, at a minimum, to warn persons using the premises of unreasonable risks of harm."  Sullivan v. Farmers & Merchants State Bank of New Ulm, 398 N.W.2d 592, 59495 (Minn. App. 1986), review denied (Minn. Mar. 13, 1987).  Even when landowners owe persons a duty to keep and maintain their premises in a reasonably safe condition, they are not insurers of safety.  Wolvert v. Gustafson, 275 Minn. 239, 241, 146 N.W.2d 172, 173 (1966).

A.         Duty to Keep Premises in a Reasonably Safe Condition 

            Essentially, appellant makes two arguments.  First, appellant asserts that sufficient evidence exists that Dominium breached its duty to keep and maintain its premises in a reasonably safe condition, and that the breach proximately caused her to slip and fall on water at the top of the stairs.  Appellant relies heavily on circumstantial evidence that there was a cable at the top of the stairs, that she was "swept off [her] feet," that she observed water where she landed at the bottom of the stairs, and that she felt water on the back of her pants and sweatshirt.  Appellant argues that it is reasonable to infer that water existed at the top of the stairs that caused the dangerous condition resulting in her fall.  But appellant concedes that for the area in question, there is no evidence of (1) water accumulating at the top of the stairs; (2) a potential source of water accumulation, such as a leaky hose; or (3) water that had previously accumulated and been cleaned up in that area.

To prevail on the negligence claim, the plaintiff has "the burden of proving either that defendant caused the dangerous condition or that it knew, or should have known, that the condition existed."  Messner v. Red Owl Stores, 238 Minn. 411, 415, 57 N.W.2d 659, 662 (1953).  "[S]peculation as to who caused the dangerous condition, or how long it existed, warrants judgment for the landowner."  Rinn v. Minn. State Agric. Soc'y, 611 N.W.2d 361, 365 (Minn. App. 2000); see also Messner, 238 Minn. at 413, 57 N.W.2d at 661 (concluding that faulting defendant's employees for dropping banana peels on floor of grocery store "would be too speculative and conjectural to be sustained").

But there is no evidencedirect or circumstantialof a dangerous condition caused by respondents' negligence.  Appellant speculates that an accumulation of water at the top of the stairs is the most reasonable inference of what caused her to fall.  But we have no evidence that something occurred, like either a leak in a hose or a spill caused by respondent, which resulted in water accumulating at the top of the stairs.  Because the evidence does not establish the existence of a dangerous condition at the top of the stairs caused or known by respondents, appellant has not presented sufficient evidence to create an issue of material fact. 

Appellant relies heavily on Bahl v. Country Club Mkt., 410 N.W.2d 916 (Minn. App. 1987), to argue that the jury must be allowed to consider causation.  In Bahl, a woman entered a supermarket at around 6:00 p.m. in mid-December and slipped and fell near its entrance.  Id. at 917, 91920.  The woman's husband sued for negligence, and, following a trial, the jury found that the supermarket was negligent.  Id. at 918.  On appeal, this court affirmed the district court's denial of judgment notwithstanding the verdict (JNOV), holding that the jury could have reasonably inferred that the supermarket was negligent and caused the accident.  Id. at 918, 920.  In Bahl, the evidence of a dangerous condition was based on direct evidence of the accumulation of water in a heavily traveled supermarket entryway, and the removal of a rug in the area in question because it was saturated with water.  Here, we have no evidence of heavy traffic, an accumulation of water at the top of the stairs, or a saturated rug.  In short, we have no evidence of if or how water accumulated at the top of the apartment stairs.  Consequently, Bahl is factually distinguishable.  

Appellant also relies on Ingram v. Syverson, 674 N.W.2d 233 (Minn. App. 2004), review denied (Minn. Apr. 20, 2004).  In Ingram,the plaintiff brought a personal injury action for back injuries that she claimed were caused by a car accident, but admitted that she had a pre-existing degenerative disc condition in her back.  Id. at 235.  On appeal, this court reversed the district court's grant of summary judgment to the defendant.  In Ingram, two medical experts disagreed as to the cause of plaintiff's medical condition.  Here, appellant only speculates on what caused her fall and her injury.  Thus, Ingram is also factually distinguishable.

B.         Constructive Knowledge

Second, appellant argues that respondent had constructive knowledge of a dangerous condition, i.e., an accumulation of water on the floor at the top of the stairs.  A landowner who does not cause a dangerous condition may nonetheless be liable if the landowner had actual or constructive knowledge of the dangerous condition.  Messner, 238 Minn. at 413, 57 N.W.2d at 661.  "Where defendant and his employees have not caused the dangerous condition, the burden is on plaintiff to establish that the operator of the premises had actual knowledge of the defect causing the injury or that it had existed for a sufficient period of time to charge the operator with constructive notice of its presence."  Wolvert, 275 Minn. at 241, 146 N.W.2d at 173.  Speculation as to who caused the dangerous condition, or how long it existed, warrants judgment for the landowner. See Bob Useldinger & Sons, Inc., v. Hangsleben, 505 N.W.2d 323, 328 (Minn. 1993) (affirming grant of summary judgment when nonmoving party engages in mere speculation and conjecture); Messner, 238 Minn. at 413-15, 57 N.W.2d at 661-62 (grant of JNOV proper where there was no direct evidence as to how a banana peel came to be on the floor or how long it had been there); Rinn, 611 N.W.2d at 365 (determining that speculation on the cause or duration of the dangerous condition is insufficient evidence of negligence to withstand summary judgment against the claim). 

Here, appellant has not presented evidence of an accumulation of water at the top of the stairs when she left the apartment for her workout or when she returned.  Without evidence that respondents knew about, or should have known about a dangerous condition, there can be no constructive knowledge imputed to respondents.  See Messner, 238 Minn. at 413, 57 N.W.2d at 661 (stating that the plaintiff has the burden of proving either that defendant caused the dangerous condition or that it knew, or should have known, that the condition existed). 

Appellant relies on Bonniwell v. St. Paul Union Stockyards Co., 271 Minn. 233, 135 N.W.2d 499 (1965), to argue that respondents had constructive knowledge of the water spill.  In Bonniwell, the plaintiff fell at work when a manhole cover tipped under his weight.  Id. at 234, 135 N.W.2d at 500.  Although there was no evidence that the manhole was a hazard, there was evidence of debris around the rim of the manhole, that the manhole cover sometimes became "jarred," and that it had been replaced at least once on the day of the accident.  Id.  The plaintiff sued for negligence, and the jury found that the defendant employer was negligent.  Id. at 234, 135 N.W.2d at 500.  On appeal, the Minnesota Supreme Court held that evidence of circumstances surrounding the fall was sufficient to permit the jury to find that the proprietor of the premises had constructive knowledge of the condition of the manhole.  Id.at 239, 135 N.W.2d at 503.[2]

Appellant argues that like the property owner in Bonniwell, respondent had notice of the potential danger posed by the water removal work.  Appellant suggests that a reasonable inference from the evidence is that the water had accumulated after she left the apartment building and it was in existence for approximately one hour, or the time period before she returned to the apartment building.  But appellant's theory must be based on "sufficient evidence" that gives rise to a reasonable inference of a dangerous condition.  Here, we have no evidence from which to conclude that water accumulated at the top of the stairs.  Thus, Bonniwell is factually distinguishable.

Appellant also relies on Hasan v. McDonald's Corp., 377 N.W.2d 472 (Minn. App. 1985), to argue that respondent had constructive knowledge of a dangerous condition at the top of the stairs.  In Hasan, the plaintiff slipped and fell on a liquid in a heavily traveled area of a McDonald's restaurant during lunchtime when the restaurant was "very busy."  Id. at 474.  The plaintiff's testimony "support[ed] two contradictory inferences: (1) the substance was liquid and dark because it had been there a long time (it was dirty and/or melted from ice cream form), or (2) the substance was liquid and dark because it was chocolate milk."  Id.  The district court granted summary judgment, concluding that the plaintiff did not establish that the liquid substance was on the floor for a sufficient period of time to provide the defendant with actual or constructive notice.  Id.  On appeal, this court reversed, determining that because all inferences from circumstantial evidence must be resolved against the movant, a genuine issue of material fact existed as to whether the liquid on the floor was there for a sufficient amount of time to put McDonald's on constructive notice.  Id. at 474­­75. 

Appellant argues that a jury could reasonably infer that a water leak from the cable occurred between the time when she left the apartment building and when she returned.  But unlike Hasan, appellant presents no evidence or reasonable inference that water had accumulated at the top of the stairs, which would put respondent on constructive notice of a dangerous condition.

            We conclude that appellant failed to present sufficient evidence that her slip and fall was caused by an accumulation of water at the top of the stairs directly caused by respondents or that respondents had constructive notice of water accumulating at the top of the stairs.  Therefore, the district court did not err in granting summary judgment.

            Affirmed.

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

[1] Because appellant testified that the cable was not a hose, we refer to it as a cable throughout the remainder of this opinion.

[2] Appellant also cites another case for the proposition that circumstantial evidence can establish that a landowner has constructive knowledge of a general danger posed by its operations.  See Martin v. Wal-Mart Stores, Inc., 183 F.3d 770, 774-775 (8th Cir. 1999) (applying Missouri law and holding that constructive notice existed where customer slipped on shotgun shells in store because store clerk testified the pellets could have been on the floor for up to an hour but did not inspect the aisle when he had the opportunity five minutes before the fall).  Martin does not apply Minnesota law, so it is not necessary to discuss it here.