Shawn Eugene Allison, Appellant, vs. Richard Olson, Respondent, Connie Mauer, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998)

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-00-942

 

Shawn Eugene Allison,

Appellant,

 

vs.

 

Richard Olson,

Respondent,

 

Connie Mauer,

Respondent.

 

Filed December 12, 2000

Affirmed in part, reversed in part, and remanded

Lansing, Judge

 

Hennepin County District Court

File No. PI9906953

 

Michael J. Spillane, 7701 France Avenue South, Suite 200, Edina, MN 55435 (for appellant)

 

Terrence R. Peterson, 7401 Metro Boulevard, Suite 510, Edina, MN 55439 (for respondent Mauer)

 

Thomas S. McEachron, 1250 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN  55101 (for respondent Olson)

 

            Considered and decided by Lansing, Presiding Judge, Klaphake, Judge, and Mullaly, Judge.*

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            Shawn Allison brought this negligence action against Connie Mauer and Richard Olson to recover for injuries he sustained when he fell off a ladder on Olson's property while trimming a tree for Mauer.  Allison fell when the branch on which he had rested the ladder snapped.  On appeal from summary judgment dismissing his negligence claim, Allison argues the district court erred in concluding as a matter of law that Mauer and Olson did not have a duty to warn him the branch was dead.  Because issues of fact remain on whether the branch posed an obvious danger and whether the danger was foreseeable, we reverse the summary judgment in favor of Mauer and remand.  But we affirm summary judgment in favor of Olson.

FACTS

            In late April 1997, Shawn Allison volunteered to help Connie Mauer trim a tree on Richard Olson's property, where Mauer and her daughter lived.  Allison took an extension ladder from Mauer's shed and rested it against a tree branch.  Minutes after he started sawing, the branch supporting the ladder snapped, causing Allison to fall.  Allison landed on the grass, but his left hand hit the sidewalk.  As a result, Allison suffered compound fractures to his wrist.

            Allison claims he rested the ladder on the branch immediately below the branch Mauer wanted trimmed.  He also claims that Mauer did not warn him, and he had no reason to know, that the branch on which he rested the ladder was dead.  The branch appeared sturdy and showed no signs of decay.  The tree had not yet developed its spring foliage.

Mauer claims Allison rested the ladder on a section of the branch she wanted trimmed, rather than the branch immediately below it.  She further claims she warned Allison that the entire branch was dead, all the way up from the base of the tree.  Both Mauer and Allison stated they had no reason to foresee that any part of the branch that extended from the base of the tree would snap.  

            Olson owned the house where Mauer lived.  He did not know the tree needed trimming or that Mauer had enlisted Allison's help.  Nor was he at the house when the accident occurred.

            Allison sued Mauer and Olson, alleging they had negligently failed to maintain the premises.  The district court granted summary judgment dismissing Allison's claims.  The court reasoned that Mauer and Olson did not owe Allison a duty to warn because (a) Allison had assisted in creating the dangerous condition, and (b) Mauer and Olson could not have anticipated the danger posed by the dead tree branch.  This appeal followed.

D E C I S I O N

When reviewing a grant of summary judgment, we determine whether genuine issues of material fact exist and whether the district court correctly applied the law.  Moe v. Kilde, 419 N.W.2d 820, 821 (Minn. App. 1988) (citation omitted).  Genuine issues of material fact exist when "the evidence presents sufficient disagreement to require submission [of a claim] to a jury."  DLH, Inc. v. Russ,566 N.W.2d 60, 69 (Minn. 1997) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512 (1986)).  Conversely, genuine issues of material fact do not exist when the evidence permits only one reasonable conclusion as a matter of law.  Id.  The existence of a duty is a question of law.  Germann v. F.L. Smithe Mach. Co., 395 N.W.2d  922, 924 (Minn.  1986).

A possessor of land owes entrants a duty to use reasonable care to secure their safety.  Sutherland v. Barton, 570 N.W.2d 1, 7 (Minn. 1997).  The landowners' duty of reasonable care includes the duty to warn entrants of obvious dangers when the landowners can anticipate harm will occur despite the obvious nature of the danger.  See, e.g., Peterson v. W.T. Rawleigh Co., 274 Minn. 495, 497-98, 144 N.W.2d 555, 558 (1966) (holding defendant had duty to warn of anticipated slippery conditions on his premises).

But the landowners' duty of reasonable care does not include the duty to warn entrants of dangers that are so obvious that no warning is required.  See, e.g., Bisher v. Homart Dev. Co., 328 N.W.2d 731, 733-34 (Minn. 1983) (holding shopping-mall owner had no duty to warn patrons of large planter in plain view because planter presented obvious danger); Sperr by Sperr v. Ramsey County, 429 N.W.2d 317, 317-18 (Minn. App. 1988) (holding landowner had no duty to protect pedestrian from clearly visible low-hanging branch), review denied (Minn. Nov. 23, 1988); Lawrence v. Hollerich, 394 N.W.2d 853, 855-56 (Minn. App. 1986) (holding landowner owed no duty to warn entrant of steep hill that was obviously treacherous), review denied (Minn. Dec. 17, 1986).

The landowner's duty of reasonable care similarly does not include the duty to warn entrants of obvious dangers the entrants assisted in creating.  Baber v. Dill, 531 N.W.2d 493, 495-96 (Minn. 1995) (holding landowner had no duty to warn employee of danger created by rods protruding from partially constructed retaining wall employee had assisted in building).

Thus, a landowner's duty to warn depends initially on whether the danger is obvious.  But only if the danger is obvious is it necessary to then consider whether the landowner had reason to anticipate that harm would occur despite the obvious nature of the danger or whether the entrant assisted in creating the danger.

Mauer was in possession of Olson's premises when the accident occurred.  Accordingly, she owed Allison a duty to use reasonable care to secure his safety.  In dismissing Allison's claim against Mauer, the district court assumed the danger was obvious as a matter of law and held that Mauer did not owe Allison a duty of care because she could not have foreseen that harm would occur despite the obviousness of the danger and because Allison assisted in creating the harm.  But the record does not support the court's assumption that the danger was obvious as a matter of law.

A danger is obvious if it is visible.  Lawrence, 394 N.W.2d at 855.  Whether a danger is visible depends on an objective determination of whether a person would reasonably have perceived the danger.  Munoz, 293 Minn. at 434, 196 N.W.2d at 922.  The record in this case shows that the entire tree was bare because of the time of year and that the section of the branch on which Allison claims he rested the ladder appeared sturdy and contained no signs of decay.  The record contains no evidence describing the general appearance or the strength of the branch extending up from the base of the tree.  The record thus does not establish as a matter of law that the branch on which the ladder rested posed an obvious danger.  Instead, because the parties disagree, among other things, on (a) the configuration of the tree on which the ladder rested, and (b) whether the branch in question was dead from the tip all the way to the trunk, the record raises an issue of fact on whether Allison should reasonably have perceived the danger.

The record also raises an issue of fact on whether a reasonably prudent person under the same circumstances would, or should in the exercise of reasonable care, have anticipated the danger.  See Vogt v. Johnson, 278 Minn. 153, 153 N.W.2d 247 (1967) (stating risk reasonably to be perceived defines duty to be obeyed); Behrendt v. Ahlstrand, 264 Minn. 10, 118 N.W.2d 27 (1962).  Although the foreseeability issue is generally an issue of law, the issue is one for the jury when different minds might differ.  Donaldson v. Young Women's Christian Ass'n, 539 N.W.2d 789 (Minn. 1995); Kay v. Fairview Riverside Hosp., 531 N.W.2d 517 (Minn. App. 1995).  In this case, Mauer and Allison indicated they could not have anticipated that the branch would break.  But because the record contains conflicting evidence on the configuration of the tree and the apparent strength of the branch in question, it raises a factual issue on whether a reasonably prudent person could or should have anticipated the risk of injury.  Accordingly, the district court erred in granting summary judgment dismissing Allison's claim against Mauer.

But the district court properly dismissed Allison's claim against Olson.  A landlord is not liable for injuries caused by dangerous conditions on the premises unless the dangerous condition is hidden, and the landlord knows about it but the tenant does not.  Oakland v. Stenlund, 420 N.W.2d 248, 251 (Minn. App. 1988) (holding landlord had no duty to warn tenant's guest that basement stairs were dangerous because danger not hidden and tenant knew of danger), review denied (Minn. Apr. 20, 1988).  Assuming, as Allison claims, that Olson is in fact a landlord, Olson owed Allison no duty of reasonable care because it is uncontroverted that he did not know the tree branch was dead and Mauer, the alleged tenant, knew.  The district court thus properly granted summary judgment in Olson's favor.

Affirmed in part, reversed in part, and remanded.

 

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