Robert Movold, Appellant, vs. Mid Continent Management Corporation, Respondent, Leon Foss Construction, Inc., Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-326

 

Robert Movold,

Appellant,

 

vs.

 

Mid Continent Management Corporation,

Respondent,

 

Leon Foss Construction, Inc.,

Respondent.

 

Filed September 21, 2004

Reversed and remanded
Klaphake, Judge

 

Stearns County District Court

File No. C7-03-1928

 

Stephen D. Gabrielson, Gabrielson Law Offices, Ltd., 18 Riverside Avenue South, Suite 200, Sartell, MN 56377; and

 

Krister Davis Johnson, Gempler, Kenyon & Butwinick, 6975 Saukview Dr., St. Cloud, MN 56303 (for appellant)

 

Kevin F. Gray, Rajkowski Hansmeier Ltd., 11 Seventh Avenue North, P.O. Box 1433, St. Cloud, MN 56302 (for respondent Mid Continent Management Corporation)

 

Michael D. LaFountaine, P.O. Box 1008, St. Cloud, MN 56302; and

 

Heidi N. Thoennes, 600 Wells Fargo Center, 400 South First Street, St. Cloud, MN 56302 (for respondent Leon Foss Construction)

 

            Considered and decided by Klaphake, Presiding Judge, Peterson, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Robert Movold sued respondents Mid Continent Management Corporation and Leon Foss Construction, Inc. after he sustained injuries from tripping over a retaining wall outside his apartment complex.  The district court granted summary judgment in favor of respondents, determining that (1) the condition of the retaining wall over which appellant tripped was a known and obvious danger, and (2) respondents did not otherwise have a duty to warn appellant of the condition.  Because a genuine issue of material fact exists as to whether the condition causing appellant's injury was known and obvious, we reverse and remand.

D E C I S I O N

            On appeal from a grant of summary judgment, we ask two questions:  (1) whether there are any genuine issues of material fact, and (2) whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  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 judgment as a matter of law.  Minn. R. Civ. P. 56.03.  This court must view the evidence in a light most favorable to the party against whom judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  All doubts and factual inferences must be resolved in favor of the non-moving party. Offerdahl v. Univ. of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988).

            Appellant contends that the district court erred as a matter of law when it determined that the condition causing his injury was known and obvious.  He argues that the court (1) inappropriately considered photographs that were taken after the retaining wall had been repaired as representative of the wall's condition at the time of the accident, and (2) refused to give credence to the testimony of appellant's wife, who was the apartment building manager, that the condition causing his accident was difficult to appreciate.  We agree.

            The district court determined that the condition causing appellant's fall was known and obvious, at least in part, due to the color and height differences between the retaining wall blocks and the adjoining sidewalk.  But the court clearly based its conclusions on photos that were taken, according to appellant's wife, well after his accident.  And the record reflects that the condition of the retaining wall may have substantially changed between the time appellant fell and the time when his wife took photographs of the wall's condition.  Specifically, the record contains a work order from respondent Foss, dated eight days afterthe accident, that included not only replacement of the blocks over which appellant tripped, but also removal and replacement of the sidewalk surrounding the blocks.  Further, appellant's wife testified by deposition that before the blocks were repaired, the retaining wall had eroded to the point where it was "barely even there."  Though the court acknowledged these assertions, it dismissed them due to the photographs and what the court apparently believed to be conflicting, subsequent testimony.

            On a motion for summary judgment, it is inappropriate for the district court to make assessments of witness credibility or to weigh conflicting evidence to settle disputed fact issues.  See Fairview Hosp. & Health Care Serv. v. St. Paul Fire & Marine Ins. Co.,535 N.W.2d 337, 341 (Minn. 1995); Smith v. Woodwind Homes, Inc., 605 N.W.2d 418, 423 (Minn. App. 2000).  Here, the condition and visibility of the retaining wall at the time of appellant's fall are clearly disputed fact issues, and the district court appears to have made credibility determinations.  When the totality of the evidence here is viewed in a light most favorable to appellant, as it must be for summary judgment, the color and height of the retaining wall, and therefore its visibility, are disputed facts.  We therefore conclude that the district court erred in granting summary judgment.

            Reversed and remanded.