William David Byrne, Appellant, vs. Terry Kropp, Respondent, Bryce Bjork, Respondent.

William David Byrne, Appellant, vs. Terry Kropp, Respondent, Bryce Bjork, Respondent. A06-550, Court of Appeals Unpublished, January 9, 2007.

This opinion will be unpublished and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

A06-550

 

William David Byrne,

Appellant,

 

vs.

 

Terry Kropp,

Respondent,

 

Bryce Bjork,

Respondent.

 

Filed January 9, 2007

Affirmed
Klaphake, Judge

 

Olmsted County District Court

File No. C3-04-4305

 

Daniel J. Heuel, O'Brien & Wolf, L.L.P., 206 South Broadway, Suite 611, P.O. Box 968, Rochester, MN  55903-0968 (for appellant)

 

Scott V. Kelly, Jay W. Ramos, Farrish Johnson Law Office, Chtd., 1907 Excel Drive, P.O. Box 550, Mankato, MN  56002-0550 (for respondent Kropp)

 

Robert G. Benner, Dunlap & Seeger, P.A., 206 South Broadway, Suite 505, Post Office Box 549, Rochester, MN  55903-0549 (for respondent Bjork)

 

            Considered and decided by Ross, Presiding Judge, Klaphake, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant William David Byrne slipped and fell while attempting to walk up the sloped apron of a driveway that serviced two multi-family dwellings in Rochester.  The two properties, including the shared driveway, are owned by respondents Terry Kropp and Bryce Bjork.  Because appellant's fall occurred on the city's right-of-way and because appellant could show no causal link between appellant's fall and respondents' snow and ice removal activities in the area, appellant failed to establish a prima facie case of negligence.  We therefore affirm the district court's grant of summary judgment to respondents.

D E C I S I O N

            The district court shall grant summary judgment if the pleadings, discovery, and affidavits show that there are no genuine issues of material fact and that either party is entitled to judgment as a matter of law.  Minn. R. Civ. P. 56.03.  Genuine issues of material fact do not exist "when the nonmoving party presents evidence . . . which is not sufficiently probative with respect to an essential element of the nonmoving party's case to permit reasonable persons to draw different conclusions."  DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997). 

            A negligence claim consists of "(1) a duty owed by the defendant; (2) a breach of that duty; (3) causation; and (4) injury."  Rinn v. Minn. State Agric. Soc'y, 611 N.W.2d 361, 364 (Minn. App. 2000).  The existence of a legal duty is a question of law subject to de novo review on appeal.  Id.  Generally, a city, and not an abutting property owner, retains the duty of care for sidewalk maintenance, and an abutting property owner is "not liable to pedestrians for injuries caused by stumbling or slipping on sidewalks which have become slippery and dangerous from [n]atural (as distinguished from artificial) accumulations of ice and snow."  Graalum v. Radisson Ramp, Inc., 245 Minn. 54, 59, 71 N.W.2d 904, 908 (1955) (footnote omitted).  Historically, a city's duty of care with regard to areas not typically frequented by pedestrians was even more limited:  if an accident occurred in the "immediate adjacent boulevard or driveway area, where it is contended the city would not expect pedestrians," the city's duty of care was "of a lower degree," and the pedestrian's was "commensurately higher."  Brittain v. City of Minneapolis, 250 Minn. 376, 385-86, 84 N.W.2d 646, 653 (1957).

            Here, Rochester's city ordinance defines "sidewalk" as "that portion of the street between the curb line and the adjacent property line intended for the use of pedestrians."  Rochester, Minn., Code of Ordinances § 3.02, subd. 8 (2002).  Irrespective of whether the site of appellant's fall is considered to be part of the boulevard or sidewalk, appellant's testimony shows, and on appeal he has conceded, that the property on which his fall occurred is owned by the city of Rochester.  Thus, neither respondent can be found liable for appellant's injuries because of any duty he owed to appellant as a property owner.     

            Appellant claims, however, that while the evidence as to where he fell is conclusive, respondents nevertheless remain liable as "possessors" of the driveway apron because they exerted sufficient control over that area by virtue of their snow and ice removal activities to owe appellant a duty of care.  As appellant points out, there is Minnesota case law that applies interchangeably the duty owed by a property owner or "possessor" to those who come onto their property.  See, e.g., Isler v. Burman, 305 Minn. 288, 295, 232 N.W.2d 818, 821 (1975) (stating "possessor" or "one in control of premises" is under same duty as owner; church that held snowmobile party on farmer's property after inspecting the property could owe duty of care to church member who attended party and was injured by dangerous condition on property); Peterson v. Balach, 294 Minn. 161, 174, 199 N.W.2d 639, 647 (1972) (establishing duty of care owed by "the owner (or the person responsible) to inspect, repair, or warn those who come upon the land as licensees or invitees" as the duty of reasonable care). 

            The cases cited by appellant stem from the notion that "one who voluntarily assumes a duty must exercise reasonable care."  Isler, 305 Minn. at 295, 232 N.W.2d at 822.  However, Minnesota caselaw has refused to extend this rule of law to an owner of property abutting city property who assumes snow and ice removal duties on city property.  In regard to private citizens who remove snow and ice from city-owned property, the supreme court has stated, that "[o]ccupants and owners of property abutting city streets often do clean or attempt to clean the sidewalk in front thereof.  Their worthy efforts should not be discouraged by holding them liable where no liability otherwise exists, simply because they endeavor to free the sidewalk of snow and ice."  Abar v. Ramsey Motor Serv., Inc., 195 Minn. 597, 603, 263 N.W. 917, 920 (1935).  Thus, respondents cannot be found liable for appellant's injuries just because they "possessed" the property and assumed snow and ice removal duties on the city's property.    

            Appellant further claims, however, that there are fact questions regarding whether respondents created artificial or dangerous conditions during their snow and ice removal activities which would create a duty of care toward appellant.  An abutting landowner may be liable for extraordinary use of city property when the use is "of such a nature, in [k]ind or in [d]egree, that a condition is created which interferes with, and is in derogation of, a normal use."  Graalum, 245 Minn. at 60-61, 71 N.W.2d at 909; see Sternitzke v. Donahue's Jewelers, 249 Minn. 514, 519, 83 N.W.2d 96, 100 (1957) (holding abutting landowner not liable for condition of sidewalk where owner did not create "artificial or dangerous condition" on the sidewalk).  In Graalum, the supreme court found that at least 570 vehicles went into an owner's parking garage during work hours.  While waiting to enter the garage, some of those vehicles were parked on the city sidewalk, and created an ice build-up on the sidewalk.  The court concluded that these extraordinary conditions created a question for the jury on whether the garage owner should be liable for the injuries of a pedestrian who was injured when crossing the driveway.  245 Minn. at 61-62, 71 N.W.2d at 909-10.  By contrast, more recently this court has stated that when "the only use [the abutting landowner] made of [a driveway] slope was the occasional removal of snow or leaves[,] [s]uch use did not create a liability for hazards from natural causes," and this court affirmed a directed verdict against a pedestrian who slipped and fell on the driveway slope.  Strong v. Richfield State Agency, Inc., 460 N.W.2d 106, 109 (Minn. App. 1990).

            Here, our line-by-line review of respondents' deposition transcripts offers no material facts that could lead to a finding that either respondent created an artificial or dangerous condition in the area of the driveway by his snow and ice removal activities.  Respondent Kropp stated that he was very diligent at snow removal, using a plow and a snowblower, as well as salt and sand, to keep the driveway clear.  Respondent Bjork stated that he hired someone to plow the driveway, that he chipped and removed ice from the driveway, and that he hired another person to chip and remove ice from the driveway.  While record photographs show that a pool of water had accumulated at the end of the driveway on the date of appellant's fall due to a mid-winter thaw, and the record also suggests that ice had melted from the snow banks on the sides of the driveway, which had been created, at least in part, by respondents' snow and ice removal activities, the existence of these conditions is typical during the course of a Minnesota winter, and does not constitute evidence of an artificial or dangerous condition.  We also note that on the date of appellant's fall, a light drizzle and rain of approximately one-quarter inch had fallen during the day, and the temperature had hovered between 23° and 35° Fahrenheit.  On this record, we conclude the evidence is insufficient to show that either respondent created an artificial or dangerous condition that would establish a causal link to appellant's accident.

            Affirmed.

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