This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A15-1018
Jessica Mattson, Appellant,
vs.
City of Rushford, Respondent,
Minnowa Construction, Inc., Respondent,
State of Minnesota Department of Transportation, Respondent,
Edwards and Kelcey, Inc., et al., Defendants,
Minnowa Construction, Inc., Third Party Plaintiff,
Eric Kaiser d/b/a Kaiser Concrete, Third Party Defendant.
Filed April 18, 2016 Affirmed Connolly, Judge
Fillmore County District Court File No. 23-CV-13-514
Robert M. Speeter, Patrick V. Johnson, Emily Johnson Streier, Speeter & Johnson, Minneapolis, Minnesota (for appellant) Jason J. Kuboushek, Iverson Reuvers Condon, Bloomington, Minnesota (for respondent City of Rushford)
Lori Swanson, Attorney General, Kathryn A. Fodness, Assistant Attorney General, St. Paul, Minnesota (for respondent Minnesota Department of Transportation)
Joshua I. Welle, Welle Law PC, Bloomington, Minnesota (for respondent Minnowa Construction Inc.)
Emily B. Uhl, Neal Robinson, The Cincinnati Insurance Company, Coon Rapids, Minnesota (for respondent Eric Kaiser d/b/a Kaiser Concrete)
Considered and decided by Connolly, Presiding Judge; Stauber, Judge; and Reilly,
Judge.
UNPUBLISHED OPINION
CONNOLLY, Judge
Appellant challenges the summary-judgment dismissal of her negligence claims
against respondents City of Rushford (Rushford), Minnesota State Department of
Transportation (MNDOT), and Minnowa Construction, Inc. (Minnowa), arising out of
injuries suffered after falling into a culvert while bicycling. Appellant asserts that the
district court improperly applied summary-judgment standards and erred by determining
that (1) MNDOT and Rushford owed no duty to maintain the sidewalk and culvert;
(2) MNDOT and Rushford were relieved of any liability by appellant’s contributory
negligence; (3) MNDOT and Rushford are protected by statutory, (vicarious) official, and
recreational immunity; (4) Minnowa was not negligent in the design and construction of
the sidewalk; and (5) open and obvious conditions around the sidewalk precluded recovery.
Appellant also asserts that respondents were engaged in a joint enterprise and thus the
2 negligence of one should be imputed to the others. We affirm. In a cross-appeal,
respondent Minnowa challenges the district court’s grant of summary judgment to Eric
Kaiser d/b/a Kaiser Concrete (Kaiser) on its contribution and indemnity claims. Because
there are no material facts in dispute and the district court correctly applied the law, we
affirm that decision as well.
FACTS
Appellant Jessica Joy Mattson was severely injured in a bicycle accident, which
occurred when she rode her bicycle over a bridge and off a sidewalk connecting the State
Highway 43 Bridge to Creekside Park, Rushford High School athletic fields, and the Root
River bike trail, landing in an unseen culvert. The day of the accident she was on a bike
ride with her fiancé and decided she was tired and wanted to go home early. Appellant
took a route she had driven before, but had never biked. As she reached the top of the
bridge, before beginning the downward slope, appellant noticed road construction ahead
and made a decision to turn right into Creekside Park. Crossing the bridge on the sidewalk
on the right hand side of the street, appellant began to coast as the bridge sloped downhill.
At this point, appellant agrees that there were no signs indicating that she was on a
bike trail and that she knew she was no longer on the Root River bike trail. At the base of
the bridge, appellant noticed that the sidewalk turned sharply to the right at a 90-degree
angle. Rather than attempting to stay on the sidewalk, which she thought would be harder
for her to do, appellant thought that she could “just ride over into some grass,” onto a paved
parking lot, and then onto a gravel road that would take her home. She believed that it
would be “less distance,” creating a shorter route, and easier than trying to make the hard
3 corner, hitting her brakes, or slowing down hard.1 As she approached the corner, she saw
that instead of a ride through the grass, her planned route led to a drop-off into a culvert,
and rocks. She then braked in a split-second decision, but she was unable to avoid the
drop-off. She flipped over the front of the bicycle and onto the rocks. Appellant has since
undergone numerous surgeries, suffers from severe chronic pain, and has permanent
injuries that have prevented her from working as a result of the accident. No one disputes
the severity of her injuries.
The sidewalk and culvert upon which appellant was injured was part of the MNDOT
Highway 43 Bridge Construction Project (Project), which included the construction of a
bridge over Rush Creek in Rushford, Minnesota. Edwards and Kelcey Inc. (E & K) was
contracted to design the Project, Minnowa was hired as the general contractor, and
Rushford owned the land needed as a right-of-way. Rushford requested that MNDOT
construct a sidewalk on the east side of the bridge. The purpose of the sidewalk on the east
side of the bridge was to provide a “direct pedestrian route from the high school to the City
Park and school athletic fields (all located on the east side of the highway) without crossing
TH 43.” The bridge is right next to a city park and tennis courts and is used for recreational
and pedestrian activities.
As required by the federal Department of Transportation Act of 1966, MNDOT
prepared a “Programmatic Section 4(f) Evaluation” (4(f) Evaluation) of the impact of the
1 However, there is no evidence that she lost control of the bike or was physically unable to make the right turn.
4 new bridge upon Creekside Park. The 4(f) Evaluation stated that replacement of the bridge
was preferred, in part, because
Access for pedestrians, bicycles and other forms of non- motorized transportation would be improved due to the construction of an 8-foot wide walkway on each side of the bridge . . . . The addition of the sidewalk on the east side of the bridge will improve the safety of the students walking or biking between the two.
The access to the park as designed by E & K was a straight sidewalk coming from the
bridge, “then tak[ing] a slight north and east direction and proceed[ing] to go down the
embankment from the bridge elevation down into the park” at a five percent slope. 2 At
some point in the construction process, the original E & K designs were altered and the
sidewalk was extended to Creekside Park parking lot by shortening it, and from the
shortened end, turning the sidewalk nearly 90 degrees to the right, extending the sidewalk
to a parking lot by the tennis courts. While the original project plans did not refer to this
alteration, the as-built drawings created after the completion of the Project note: “Grading
bridge 23022, sidewalk as designed to end in ditch bottom. Place[d] 2 25-foot 57 span
culverts in ditch and built sidewalk over culverts.” The as-built drawings were signed and
approved by Eric Breitsprecher, MNDOT’s head inspector for the Project and by Mark
Anderson, MNDOT’s head engineer for the Project.
During the construction of the Project, MNDOT employed engineers, who were
responsible for ensuring that the project is built according to the plans and specifications,
2 The slope on the sidewalk plans was five percent and the maximum recommended is as high as 8.33 percent.
5 and inspectors, who were responsible for day-to-day inspection of the contractor’s work
for conformance with the contract documents. Several documents were incorporated into
the contract for the Project, including the MNDOT Standard Specifications for
Construction (Standard Specifications). The Standard Specifications indicate that the
MNDOT engineer, Mark Anderson, “has authority to administer the Contract, rule on
apparent discrepancies, fulfill intentions, and allow for construction needs in the
performance and completion of the work . . . . The engineer will decide all discretionary
matters as they arise.” Furthermore, section 1402 of the Standard Specifications provides
that MNDOT may alter the details of construction as necessary for proper completion of
the Project and as desired for reasons of public interest, at any time during construction.
Following a hearing on all of respondents’ motions for summary judgment, the
district court granted summary judgment against appellant as to each respondent. In a
separate order, the district court granted summary judgment to Kaiser on Minnowa’s claim
for contribution and indemnity.
DECISION
“We review a district court’s summary judgment decision de novo. In doing so, we
determine whether the district court properly applied the law and whether there are genuine
issues of material fact that preclude summary judgment.” Riverview Muir Doran, LLC v.
JADT Dev. Grp., LLC, 790 N.W.2d 167, 170 (Minn. 2010) (citation omitted). “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
6 of law. On appeal, the reviewing court must view the evidence in the light most favorable
to the party against whom judgment was granted.” Fabio v. Bellomo, 504 N.W.2d 758,
761 (Minn. 1993) (citation omitted); see Minn. R. Civ. P. 56.03. In opposing a motion for
summary judgment, general assertions are not enough to create a genuine issue of material
fact. Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845, 848 (Minn. 1995). An
award of summary judgment will be affirmed if it can be sustained on any ground. Winkler
v. Magnuson, 539 N.W.2d 821, 828 (Minn. App. 1995), review denied (Minn. Feb. 13,
1996).
Appellant alleges that the district court applied the incorrect standard for summary
judgment. In granting summary judgment, the district court stated:
A motion for summary judgement may not be opposed simply based on the pleadings, mere denials, mere allegations, or by postulating evidence that might be developed at trial. Instead, a genuine issue of material fact must be established by “substantial evidence”, meaning that there must be evidence on which the jury could reasonably find for the nonmoving party.
(quotations omitted). Appellant argues that the district court erred because it “failed to
engage in further discussion on the term ‘substantial evidence’ in its orders, and did not
consider any of the more recent cases interpreting ‘substantial evidence.’” Our supreme
court has ruled that “[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). To prevail on appeal, a party must show both error and prejudice resulting
7 from the error. Midway Ctr. Assocs. v. Midway Ctr. Inc., 306 Minn. 352, 356, 237 N.W.2d
76, 78 (1975); see Bloom v. Hydrotherm, Inc., 499 N.W.2d 842, 845 (Minn. App. 1993)
(stating that the appellant bears the burden of demonstrating that error is prejudicial),
review denied (Minn. June 28, 1993). Because we review summary judgment de novo, we
review the record anew to determine if appellant has presented sufficient evidence to permit
reasonable persons to draw different conclusions. For the reasons outlined below, we
conclude that she has not.
I. Did the district court err in finding that appellant failed to establish a prima facie claim of negligent maintenance against MNDOT?
Appellant made allegations of negligence against both MNDOT and Rushford. 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 of the duty was the proximate cause
of the injury. Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995). The district court
concluded that neither MNDOT nor Rushford owed a duty of care to appellant. The district
court reasoned that “[appellant’s] injury occurred entirely within [MNDOT’s] right-of-way
and that [Rushford] had no role in designing, constructing or repairing of the sidewalk or
culverts.”
Appellant made three separate and distinct claims of negligence: (1) the sidewalk
and culverts were negligently maintained; (2) Rushford and MNDOT breached a duty to
warn her of hidden and unsafe conditions; and (3) the sidewalk and culverts were
negligently designed.
8 There is no evidence in the record that the sidewalk and culverts were negligently
maintained. In her brief, to support this claim, appellant argues that the culvert was a
hidden danger because of “tall grass” but cites no facts in the record to support the
allegation that there was tall grass. Neither appellant nor appellant’s expert testified to the
presence of tall grass around the culvert. Furthermore, appellant testified at her deposition
that she intended to ride her bike through the grass, rather than make the turn on the
sidewalk, indicating that the grass was not maintained too high for biking. There is also
no evidence in the record indicating that the sidewalk was crumbling, that there were
bumps or potholes that needed attention, or that there was snow on the ground. Because
there is no evidence in the record that the sidewalk and culvert were negligently
maintained, the district court did not err in dismissing this negligent-maintenance claim on
summary judgment.
Additionally, as discussed below, we conclude that because of statutory immunity,
vicarious official immunity, and recreational use immunity, as a matter of law, MNDOT
and Rushford cannot be found to have breached a duty to warn or to have negligently
designed the sidewalk. 3
II. Did the district court err in determining that MNDOT decisions were policy- making decisions, entitling them to statutory immunity?
“Whether government entities and public officials are protected by statutory
immunity and official immunity is a legal question which this court reviews de novo.”
3 Because we hold that both MNDOT and Rushford are protected by immunity, we decline to reach the issues of whether or not appellant is contributorily negligent or if the claimed design defect was open and obvious in regard to respondents’ duty to warn of danger.
9 Johnson v. State, 553 N.W.2d 40, 45 (Minn. 1996). Appellant alleges that the district court
erred in determining that MNDOT was entitled to statutory immunity. As a general rule,
[t]he state will pay compensation for injury to or loss of property or personal injury . . . caused by an act or omission of an employee of the state while acting within the scope of office or employment . . . who is acting in good faith . . . under circumstances where the state, if a private person, would be liable to the claimant.
Minn. Stat. § 3.736, subd. 1 (2014). However, the state and its employees are not liable
for a loss “caused by the performance or failure to perform a discretionary duty, whether
or not the discretion is abused.” Minn. Stat. § 3.736, subd. 3(b) (2014). Although “almost
every act involves some measure of discretion . . . undoubtedly not every act of government
is entitled to discretionary immunity.” Nusbaum v. Cty. of Blue Earth, 422 N.W.2d 713,
719 (Minn. 1988) (quoting Cairl v. State, 323 N.W.2d 20, 23 (Minn. 1982)). Courts draw
a distinction between conduct at a planning level, which is protected, and conduct at an
operational level which is unprotected. Id. Statutory immunity protects governmental
actions or decisions of a policy-making nature involving social, political, or economic
considerations and does not immunize “professional or scientific” decisions. Id. at 722.
The burden of proof is upon the state or local governmental unit to establish the application
of immunity. Id. at 722 n.6.
To begin our discretionary function analysis, we must first identify the precise
government conduct being challenged. See id. at 722. We identify the precise government
conduct being challenged as the decision to not place warning signs and the decision to
amend the original E & K design and implement the final as-built changes.
10 A. Statutory Immunity as Applied to Warning Signs
The placement of warning signs is generally a policy-based, discretionary function
entitled to statutory immunity. Steinke v. City of Andover, 525 N.W.2d 173, 175-76 (Minn.
1994) (“We have recognized that the government’s initial decision, whether to place signs
warning the public of potential hazards, is protected as a discretionary function because it
involves the consideration of several policy factors.”). However “[w]arning of hazards by
placing signs is not inherently either discretionary or operational; classification depends on
the factors considered in making the decision.” Minder v. Anoka County, 677 N.W.2d 479,
485 (Minn. App. 2004). “Further, in order for statutory immunity to protect a
government’s warning sign decision, an actual decision has to have been made in light of
a protected policy.” Id. at 486.
MNDOT states that its policy for projects involving sidewalk construction within
its right-of-way is based on “the fact that the affected local unit of government is in the
best position to routinely assess the need for such signs, the use of the sidewalk in question,
and the type of sign, if any, that would be appropriate.” Jeffrey L. Vlaminck, district
engineer for MNDOT in the district where the accident occurred, submitted an affidavit
stating that this policy is based on the fact that the sidewalk is created for the benefit and
at the request of the municipality, the limitations on MNDOT’s resources, and the fact that
the municipality is able to best gauge its needs. These reasons are policy-based reasons
regarding social and economic decisions and thus are entitled to statutory immunity.
For its part, Rushford fails to enumerate a policy for the placement of signs, focusing
primarily on the policy regarding maintenance of the sidewalk, giving MNDOT a right-of-
11 way over the sidewalk and culverts. However, Jeff Copley, Rushford public works director
at the time the bridge was built, testified that the city made a decision after 2007 because:
[they] didn’t feel that having to put signs up other than the bike trail to designate where that was necessary because there was a city ordinance that had been published in the paper, too, that you couldn’t ride on the sidewalks. Periodically they put it even on the website, to tell people you cannot ride on the sidewalks.
This then was a policy-based decision by Rushford to avoid greater spending by only
placing signs where bicycle riding was allowed, rather than placing bicycle warning signs
everywhere that bicycle riding was not allowed, and could potentially be a danger. Placing
warning signs directed at bicycle users may have implied that the sidewalk was excluded
from the ordinance prohibiting bicycle riding on sidewalks. These are economic and
policy-based reasons for not placing warning signs and this entitles the city of Rushford to
statutory immunity from the duty-to-warn negligence claim.
B. Statutory Immunity as Applied to On-Site Changes
In his affidavit, Mark Anderson stated:
[W]hen on-site changes are made to plans, it is up to the project engineer, in collaboration with the inspectors on site, to evaluate the nature of the changes, the safety of the proposed changes, the economic feasibility of the changes in light of the amount budgeted for the project and the additional cost of the changes (including labor, materials, and other costs), project aesthetics, what impact the changes will have on timelines for project completion, usability, whether the changes will create additional administrative burdens, whether the changes can be accomplished by on-site planning or whether the proposed changes need to be submitted to either a MNDOT design engineer or a private design engineer, and whether the changes to the project unjustifiably change the general purpose of the project.
12 Appellant counters that MNDOT merely asserts that the plan change was a result of policy
considerations typically used in minor construction changes.
If MNDOT employees were “only using [their] professional judgment in
implementing [the state’s] policy” then those actions are not immune from liability. Angell
v. Hennepin County Regional Rail Authority, 578 N.W.2d 343, 347-48 (Minn. 1998)
(“When the government implements established policy it is generally not immune from
liability.”). However, the state’s policy allows the project engineers in charge of the
construction to make on-site changes to the construction plans drafted by E & K. Thomas
Parker, the project leader from E & K, testified at his deposition that:
the only discussion [Parker and the State] had on [long-term thoughts on sidewalk and bicycle usage] was that there was no long-term plan established for the park. It was a future event that would be done by others at a later date, so that’s why we brought the sidewalk down into the park and terminated it where we did.
Further, Parker testified at his deposition, “we simply wanted to get a sidewalk from the
bridge or the bridge approach down into the park. We didn’t know what was going to
happen after that.” As the project was originally designed, “if you were going to the park
on a wheelchair, you would end up on the bottom flat part of a ditch” and you would have
to climb the hill of a grassy ditch in order to get to the park. This testimony establishes
that it was the intent of MNDOT’s policy to allow its engineers to make discretionary on-
site changes to the sidewalk and to determine how best to connect the sidewalk from the
bridge to the park. At some point “in the future” someone else would complete the
sidewalk system and tie it into the trail system.
13 Although appellant alleges that it is unclear who was responsible for the changes in
the sidewalk plans, that it could have been any one of respondents, or that the respondents
were working in concert to amend the designs, it is undisputed that MNDOT, and
specifically Mark Anderson was responsible for the changes in the sidewalk plans from the
E & K originals to the final as-built plan. Because MNDOT’s engineers and inspectors
would have had to exercise discretion and apply policy considerations concerning the
nature of the changes, safety of the changes and economic feasibility, the district court did
not err in determining that MNDOT is entitled to statutory immunity.
III. Did the district court err in finding that vicarious official immunity bars appellant’s claim against MNDOT?
The grant of vicarious official immunity to a public employer is based on the nature
of an employee’s immune conduct, whether or not the employee was actually named as a
defendant in a lawsuit. Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 316-17 (Minn.
1998). The court applies vicarious official immunity when failure to grant it would focus
stifling attention on an official’s performance to the serious detriment of that performance.
Anderson v. Anoka Hennepin Ind. School Dist. 11, 678 N.W.2d 651, 664 (Minn. 2004)
(quotations omitted). In determining vicarious official immunity, this court must first
determine if official immunity applies. Wiederholt, 581 N.W.2d at 316-17.
Official immunity is a common-law doctrine which, in the absence of a willful or
malicious wrong, protects a public official who is “charged by law with duties which call
for the exercise of his judgment or discretion.” Olson v. Ramsey County 509 N.W.2d 368,
371 (Minn. 1993). “‘Discretion’ has a broader meaning in the context of official immunity
14 than in the context of statutory immunity.” In re Alexandria Acc. of Feb. 8, 1994, 561
N.W.2d 543, 548-49 (Minn. App. 1997). Official immunity involves judgment exercised
at the operational level rather than the policymaking level, and it requires something more
than ministerial duties. Olson, 509 N.W.2d at 371. “Duties are ministerial when they are
certain and involve merely the execution of a specific duty arising from fixed and
designated facts.” Id. (quotation omitted).
Appellant alleges that MNDOT negligently designed the sidewalk and culvert,
failed to warn of the slope, turn, and culvert, and failed to provide barriers to the culvert.
The decision to alter the original E & K design involved discretion. The MNDOT
engineers had to decide where to turn the sidewalk, whether to increase the cost of the
project by building a barrier to the culvert, whether to make the turn at a 90-degree angle
or to gradually curve the sidewalk, and whether warnings were necessary or who was in
the best position to issue them. These decisions are more than the execution of specific
duties arising from fixed and designated facts. As a result, Anderson was entitled to official
immunity.
Because Anderson is entitled to official immunity, MNDOT is entitled to vicarious
official immunity if the failure to grant vicarious official immunity would focus stifling
attention on his performance to the serious detriment of that performance. Anderson, 678
N.W.2d at 664. “This standard grants vicarious official immunity in situations where
officials’ performance would be hindered as a result of the officials second-guessing
themselves when making decisions.” Id. Our concern that project engineers all over the
state of Minnesota, making discretionary decisions on a day-to-day basis, would be
15 hindered in making these decisions because of the fear of liability for accidents occurring
years later is sufficient to grant vicarious official immunity. For this reason, we conclude
that MNDOT is entitled to vicarious official immunity for the discretionary decisions
involved in modifying the design of the sidewalk.
IV. Did the district court err in finding that appellant did not raise a viable negligence claim against Rushford?
The district court held that Rushford did not owe a duty to appellant because
MNDOT owned the right-of-way for the entire as-built sidewalk and the culverts in
question and Rushford did not have a maintenance agreement that would subject it to
responsibility for maintaining the sidewalk or culverts. We conclude that the district court
erred in its conclusion that there was no maintenance agreement, but because we find that
Rushford did not owe appellant a duty of care, we conclude the error was harmless.
Absent an express agreement assuming responsibility for maintaining state-owned
property, the city is not liable for negligence in that maintenance. Huver by Huver v. Opatz,
392 N.W.2d 237, 240 (Minn. 1986) (citing Johnson v. City of Thief River Falls, 282 Minn.
281, 286-87, 164 N.W.2d 71, 74 (1969)). Implicit in that reasoning is the presumption that
if the city had expressly contracted with the state to assume the maintenance of the
property, the city would also have been held to have assumed any liability for negligence
in performing that duty. Id. It is undisputed that Rushford entered into an agreement
regarding snow removal and lawn maintenance along the sidewalk. It is also undisputed
that appellant’s injury occurred in the culvert which, on June 24, 2011, was within the
state’s right of way.
16 Under Minnesota premises liability laws, a possessor of land has a duty to exercise
reasonable care for the safety of all persons lawfully entitled to enter the premises.
Peterson v. Balach, 199 N.W.2d 639, 647 (Minn. 1972). This non-delegable duty requires,
“an owner and possessor of land . . . to . . . maintain his property in a reasonably safe
condition for visitors on the premises.” Niemann v. Northwestern College, 81 Minn. 42,
389 N.W.2d 260, 261-62 (Minn. App. 1986). “But even when landowners owe persons a
duty to keep and maintain their premises in a reasonably safe condition, they are not
insurers of safety.” Rinn v. Minnesota State Agr. Soc., 611 N.W.2d 361, 365 (Minn. App.
2000). A person who enters a property also has a duty to exercise reasonable care for his
or her own safety. Louis v. Louis, 636 N.W.2d 314, 319 (Minn. 2001). When state-owned
property is the subject of a negligence suit, courts have held that the local municipality
owes a duty only to the extent and terms it has agreed to with the state. See Johnson, 282
Minn. at 286, 164 N.W.2d at 74 (holding that, as to a municipal street which is part of the
state trunk highway system, a municipality is relieved from responsibilities and duties
plainly pertained to the responsibilities for the maintenance of such streets “except only as
a municipality is reinvested with such responsibility by voluntarily entering into a
maintenance agreement with the state.”).
Petsch v. State, cited by Rushford, is persuasive. In Petsch, the plaintiff left the
sidewalk and stood in a grassy area while waiting to cross State Trunk Highway 63 in
17 Rochester. Petsch v. State, 2010 WL 4721328, *1 (Minn. App. Nov. 23, 2010). 4 The
plaintiff stepped into a hole near a culvert, fell into the ditch and was injured. Id. In the
ensuing negligence suit against MNDOT, the city of Rochester, and an adjacent liquor
store, this court held that the area over which the plaintiff took her backward steps to the
place she fell was entirely within the state’s right-of-way. Id. at *3. “Because the city
agreed to maintain only the sidewalk traversing the state’s right-of-way” the city was
treated as an abutting landowner, and did not owe any duty beyond the agreed-to
maintenance of “the sidewalk itself.” Id.
Here it is undisputed that appellant’s injury occurred in the culvert within
MNDOT’s right of way. Rushford was not involved in construction, funding, or planning
of the sidewalk extension and culverts. Upon completion of the project, MNDOT was
solely responsible for determining whether all construction standards were met. MNDOT,
not Rushford, was specifically responsible for posting warning signs within its right-of-
way and Rushford could not have posted a sign or protective barrier without MNDOT’s
permission. However, the evidence shows that Rushford had an informal agreement with
MNDOT to remove snow and mow along the sidewalk. This agreement does not create a
duty of care for Rushford in this case. As we have stated previously, no facts in the record
suggest snow or tall grass existed on the sidewalk. Therefore, because the crux of
appellant’s claim concerns the placement of the culverts, not the quality of the sidewalk
4 We note that unpublished cases are not binding authority, but may be persuasive. City of St. Paul v. Eldredge, 788 N.W.2d 522, 526-27 (Minn. App. 2010), aff’d, 800 N.W.2d 643 (Minn. 2011).
18 itself, the injuries clearly occurred in MNDOT’s right-of-way and Rushford did not owe a
duty of care to appellant.
Because the incident did not occur as a result of a dangerous condition in the
sidewalk (grass, cracks, snow, potholes, etc.), Rushford did not have a duty to appellant.
Appellant’s injuries were a result of a hazard entirely within MNDOT’s right-of-way.
Additionally, we conclude that appellant has failed to allege any material facts that
indicate that Rushford took part in the design of the sidewalk and culvert.5 Appellant’s
assertion that Rushford has a duty to safely design a sidewalk on a right-of-way that
Rushford does not own based on the 4(f) report indicating that Rushford’s policy was to
provide safe bicycle and pedestrian access from the bridge to the park is not enough to
impose liability against Rushford. The district court did not err in granting summary
judgment on the negligent-design claim against Rushford.
V. Did the district court err in finding that Rushford was entitled to recreational- use immunity?
Appellant argues that the district court erred in holding that recreational-use
immunity applies to Rushford because, if the state owned the land where she was injured,
as the district court held, Rushford cannot claim recreational immunity because the injury
had to occur in the park for recreational immunity to apply. Rushford did not have to own
the land in order to be protected by the recreational-use immunity. See Kastner v. Star
5 Because we hold that Rushford owed no duty to appellant, we decline to reach Rushford’s defenses under the public-duty doctrine or Rushford’s claims of statutory immunity.
19 Trails Ass’n, 646 N.W.2d 235, 238 n.5 (Minn. 2002). That a sidewalk to a park is intended
for recreational use is not in dispute.
Minn. Stat. § 466.02 (2014) (the tort liability statute) does not apply to any claim
based upon the performance or the failure to exercise or perform a discretionary function
or duty including:
[a]ny claim based upon the construction, operation, or maintenance of any property owned or leased by the municipality that is intended or permitted to be used as a park, as an open area for recreational purposes, or for the provision of recreational services . . . and creation of trails or paths without artificial surfaces, if the claim arises from a loss incurred by a user of park and recreation property or services. Nothing in this subdivision limits the liability of a municipality for conduct that would entitle a trespasser to damages against a private person . . . .
Minn. Stat. § 466.03, subd. 6e (2014). A possessor of land is subject to liability for bodily
harm caused to a trespasser by an artificial condition on the land if (1) the condition is one
which the possessor has created or maintains and is, to his knowledge, likely to cause death
or serious bodily harm to such trespasser, (2) is of such a nature that he has reason to believe
that trespassers will not discover it, and (3) the possessor has failed to exercise reasonable
care to warn such trespassers of the condition and the risk involved. Lishinski v. City of
Duluth, 634 N.W.2d 456, 458-59 (Minn. App. 2001), review denied (Minn. Jan. 15, 2002).
For purposes of recreational-use immunity, “[w]hether a condition was hidden or
concealed depends on the visibility of the condition, not on whether the injured party
actually saw the danger.” Id. at 459. “When a brief inspection would have revealed the
20 condition, it is not concealed.” Johnson v. State, 478 N.W.2d 769, 773 (Minn. App. 1991),
review denied (Minn. Feb. 27, 1992).
In this case, had appellant stopped briefly before riding off the sidewalk and into the
grass, as she indicated she could have, the dangerous condition would have been revealed.
This fact distinguishes the current case from Lishinski. In Lishinski, an in-line skater fell
to her death after skating down a sidewalk that curved sharply, hiding the change in the
surface of the path. Lishinski, 634 N.W.2d at 457. There, the plaintiff remained on the
path, but did not see the change in the surface because the path curved around a stone stage
and hid the change of the pavement from blacktop to pavement stone. Id. Here, appellant
had to leave the path in order to ride into the grass. It is logical that one should not have
to stop to check for hidden dangers if one is using the path as it was intended. Appellant’s
case is more akin to Watters v. Buckbee Mears Co., a case in which the plaintiffs were
injured four-wheeling on property on which they were trespassing when they drove over a
hill and off an unseen ledge concealed by the hill. 354 N.W.2d 848, 851 (Minn. App.
1984). The court held that, even though the hill that the appellants decided to drive up was
not markedly different from the others, an inspection, however brief, would have revealed
the ledge on the other side and thus the danger was not concealed. Id.
Because appellant intentionally left the path, and because she could have seen the
danger had she stopped and looked, the district court did not err in concluding that Rushford
was immune from suit under the recreational-use immunity doctrine.
21 VI. Did the district court err in concluding that Minnowa was not negligent in the design or construction of the sidewalk?
The district court did not err in concluding that Minnowa was not negligent in the
design or construction of the sidewalk. Appellant argues that the district court erred in
“factually finding the alteration was ‘designed and decided on by [MNDOT].’” However,
appellant points to nothing in the record to contradict Minnowa’s testimony indicating that
Minnowa had nothing to do with the design aspect of the construction. Appellant points
to one page in the deposition transcript where Richard Augustin, a project manager at
MNDOT, stated that normally MNDOT and the contractor make decisions collaboratively
in the construction phase. This mere assertion is not enough to overcome the evidence
indicating that Minnowa was merely doing what it was told, and had no part in the design.
Because appellant cannot point to any evidence that Minnowa had any part in the
design of the particular sidewalk and culvert in question, and because appellant’s mere
assertion that respondents were engaged in a joint enterprise does not to amount to
sufficient evidence to create a dispute of material fact, we affirm the district court’s
dismissal of Minnowa.6
6 Appellant, for the first time on appeal, asserts that MNDOT, Minnowa, and Rushford were in a “joint enterprise when they agreed to design, construct, and maintain the sidewalk extension.” This court will not consider matters not argued to and considered by the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). Because appellant did not raise the joint-enterprise theory below, this court will not consider the theory here.
22 VII. Did the district court err in concluding that Kaiser is entitled to summary judgment as a matter of law on its related appeal?
Minnowa also challenges the district court’s grant of summary judgment to Kaiser
on its contribution and indemnification claims. Minnowa was the prime contractor for the
bridge project and Kaiser was Minnowa’s subcontractor, responsible for pouring concrete
for the altered sidewalk. We conclude that the district court did not err in concluding that
cross-respondent Kaiser is entitled to summary judgment as a matter of law. As Minnowa
alleges, contribution and indemnity claims are independent causes of action, but in this
case, Kaiser is still entitled to summary judgment.
Contribution is an equitable doctrine that requires that persons under a common burden share that burden equitably. The essential elements of a contribution claim are (1) common liability of two or more actors to the injured party; and (2) the payment by one of the actors of more than its fair share of that common liability. Whether the right of contribution exists is a legal issue, which we review de novo.
Nuessmeier Elec., Inc. v. Weiss Mfg. Co., 632 N.W.2d 248, 251 (Minn. App. 2001), review
denied (Minn. Oct. 16, 2001) (citations and quotation omitted). Indemnity applies when,
among other situations, “the one seeking indemnity has only a derivative or vicarious
liability for damage caused by the one sought to be charged.” Tolbert v. Gerber Industries,
Inc., 255 N.W.2d 362, 366 (Minn. 1977). Vicarious liability is the imposition of liability
on one person for the actionable conduct of another, based solely on the relationship
between those two persons. Sutherland v. Barton, 570 N.W.2d 1, 5 (Minn. 1997).
Minnowa alleges that the equitable nature of common-law contribution and
indemnity actions supports a broad and flexible definition of “common liability” which
23 includes defense costs that accrue as a result of a third-party’s meritless claims, and that
there was no finding regarding “common liability” between Kaiser and Minnowa
determining if appellant’s claims were based entirely or partially on Kaiser’s work.
However, because we conclude the district court did not err in finding that Minnowa was
not negligent, a finding of “common liability” is not necessary.
Furthermore, the cases cited to by Minnowa in arguing that it is entitled to
contribution and indemnity for the cost of defense are distinguishable.
If a party is obliged to defend against the act of another, against whom he has a remedy over, and defends solely and exclusively the act of such other party, and is compelled to defend no misfeasance of his own, he may notify such party of the pendency of the suit and may call upon him to defend it; if he fails to defend, then, if liable over, he is liable not only for the amount of damages recovered, but for all reasonable and necessary expenses incurred in such defense.
Jack Frost, Inc. v. Engineered Bldg. Components Co., 304 N.W.2d 346, 352-53 (Minn.
1981) (emphasis added). In Jack Frost Inc., the party that was required to pay defense
costs was found to be 15% negligent. Id. at 352. Similarly, in Diebold, Inc. v. Roadway
Express, Inc., the party who would have been responsible for a share of the defense costs
had tender of defense been given was found to be 10% negligent. 538 N.W.2d 150, 151
(Minn. App. 1995). In this case, neither Minnowa nor Kaiser were determined to be even
partially negligent and Minnowa was called to defend alleged misfeasance of its own. A
partially liable party, who properly tenders defense, might or might not recover an equitable
share of the defense costs from another partially liable party, but that is not the case at issue
here. No precedent cited by Minnowa stands for the proposition that equitable contribution
24 for defense costs may be recovered when neither party is liable. For this reason, we affirm
the district court’s grant of summary judgment to Kaiser on the indemnification and
contribution claims.
Affirmed.