Mary Owens, Appellant, vs. Lisa Carter, Respondent.

Mary Owens, Appellant, vs. Lisa Carter, Respondent. A06-1822, Court of Appeals Unpublished, September 4, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1822

 

Mary Owens,

Appellant,

 

vs.

 

Lisa Carter,

Respondent.

 

Filed September 4, 2007

Affirmed; motion granted
Klaphake, Judge

 

Hennepin County District Court

File No. 27-CV-06-1859

 

James N. Schloner, Lake Calhoun Executive Center, 3033 Excelsior Boulevard, Suite 10, Minneapolis, MN  55416 (for appellant)

 

Michael J. Tomsche, Bryan B. Carroll, Tomsche, Sonnesyn & Tomsche, 610 Ottawa Avenue North, Golden Valley, MN  55422 (for respondent)

 

            Considered and decided by Klaphake, Presiding Judge, Toussaint, Chief Judge, and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Mary Owens challenges the district court's grant of summary judgment dismissing her claim of negligence against respondent Lisa Carter for injuries she suffered when she tripped through a front door that had missing glass.  Because respondent owed no duty to appellant to warn of a known and obvious hazard, we affirm.

D E C I S I O N

            The district court must grant summary judgment if there are no genuine issues of material fact and one party is entitled to judgment as a matter of law.  Minn. R. Civ. P. 56.03.  This court reviews a grant of summary judgment to determine whether there are genuine issues of material fact and whether the district court erred in its interpretation of the law.  State, by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). 

            In a negligence action, a defendant is entitled to summary judgment if the record reflects a complete lack of proof on any of the four elements of a prima facie case.  Louis v. Louis, 636 N.W.2d 314, 318 (Minn. 2001).  In order to establish a prima facie case of negligence, a plaintiff must show (1) the defendant owed the plaintiff a duty of care; (2) the defendant breached that duty; (3) the breach caused the harm; and (4) the plaintiff incurred an injury as a result of the breach.  Rinn v. Minn. State Agric. Soc'y, 611 N.W.2d 361, 364 (Minn. App. 2000).  Whether a duty exists is a question of law, which this court reviews de novo.  Id.  

            Generally, a landowner owes a duty to use reasonable care for the safety of all entrants onto the land.  Louis, 636 N.W.2d at 318.  The entrant on the land is likewise expected to exercise a duty of reasonable care for his or her own safety.  Id. at 319.  "A property owner has a reasonable duty to protect persons from being injured by foreseeable dangerous conditions on the property, unless the risk of harm is obvious."  Rinn, 611 N.W.2d at 364 (quotation omitted).  The risk of harm is obvious if the dangerous condition is visible, and the condition and risk are apparent and recognizable to a reasonable person exercising ordinary perception, intelligence, and judgment.  Louis, 636 N.W.2d at 321. 

            Even in the case of an obvious and known danger, a landowner may nevertheless be liable if the landowner should have anticipated the harm.  Id.  This situation arises when the landowner "has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk."  Sutherland v. Barton, 570 N.W.2d 1, 7 (Minn. 1997) (quoting Restatement (Second) of Torts § 343A cmt. f (1965)).  In such a case, the court must determine if the "specific danger will result in injury, not simply whether it was within the realm of any conceivable possibility."  Kuhl v. Heinen, 672 N.W.2d 590, 593 (Minn. App. 2003).  If the specific harm is not foreseeable, there is no duty of care and no negligence.  Id.

            Here, appellant's daughter rented a house from respondent; on June 26, 2004, the unoccupied house was hit by bullets during a drive-by shooting, damaging the interior and breaking the glass out of the front door.  On July 7, appellant accompanied her daughter to the house to collect some clothing.  Appellant's statements confirm that she was aware of the glassless front door before she arrived at the house and saw it upon arrival, even commenting on the missing glass.  Appellant entered the house through the door by opening it and stated that she simply forgot about the missing glass in the door when, overcome by emotion, she hurriedly left the house.  She was injured when she tripped over the lower frame of the door.  By her own admissions, appellant was aware of the obvious and known hazard of the glassless door; respondent had no reason to anticipate that appellant would trip over the door in her haste to leave the house.  Therefore respondent had no duty to warn her of the known and hazardous condition.  We therefore affirm the judgment of the district court.

            Motion to Strike

            Respondent moved at special term for an order striking appellant's memorandum in opposition to summary judgment and supporting affidavit, both of which are included in appellant's appendix.  According to the district court's memorandum filed with the order for summary judgment, appellant's attorney failed to file the motion papers until the day of the hearing, in violation of Minn. Gen. R. Pract. 115.03(b) (requiring non-moving party to submit responsive memorandum "at least 9 days prior to the hearing").  The district court ordered them stricken from the record in accordance with Minn. R. Gen. Pract. 115.06.

            The record on appeal consists of "[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings."  Minn. R. Civ. App. P. 110.01.  Because the district court struck these documents from the trial court record, they are not a part of the record on appeal, and we therefore order them stricken from appellant's appendix.  See Brodsky v. Brodsky, 722 N.W.2d 471, 479-80 (Minn. App. 2007).

            Affirmed; motion granted.