Julie Strelow v. Winona Steamboat Days Festival Association

• Court: Court of Appeals of Minnesota
• Decided: September 21, 2015
• Docket: A15-182
• Status: Unpublished

Opinion

This opinion will be unpublished and may not be cited except as provided by Minn.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 A15-0182

Julie Strelow, et al., Appellants,

vs.

Winona Steamboat Days Festival Association, Respondent.

Filed September 21, 2015 Affirmed Hudson, Judge

Winona County District Court File No. 85-CV-13-2677

Charles A. Bird, Andrea B. Niesen, Bird, Jacobsen & Stevens, P.C., Rochester, Minnesota (for appellants)

Theodore J. Waldeck, Waldeck Law Firm, P.A., Minneapolis, Minnesota (for respondent)

Considered and decided by Hudson, Presiding Judge; Bjorkman, Judge; and

Toussaint, Judge.

UNPUBLISHED OPINION

HUDSON, Judge

Appellants challenge the district court’s summary-judgment dismissal of a

negligence claim arising from a fall at respondent’s event, based on failure to show a

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. material factual issue on whether the fall was caused by electrical cords on the ground at

the event. Because summary judgment may be sustained on the ground that appellants

failed to provide evidence that respondent had actual or constructive knowledge of the

cords, and because respondent owed no duty to protect or warn based on any other

dangerous condition, we affirm.

FACTS

Appellant Julie Strelow (Strelow) was injured while running to catch a Frisbee

thrown from the stage at the 2012 Steamboat Days Festival, which was organized by

respondent Winona Steamboat Days Festival Association. Strelow and her husband,

appellant Duane Strelow, filed a negligence action against respondent, alleging that she

tripped on electrical cords running across the event grounds. They sought damages based

on respondent’s claimed failure to maintain a safe area and to warn of a hazardous

condition on the property. Respondent denied the allegations and moved for summary

judgment, alleging that no evidence existed of a dangerous condition caused by

Steamboat; that any dangerous condition was open and obvious as a matter of law; that it

owed no duty to appellants because it had no actual or constructive knowledge of such a

condition; and that their claims were barred by primary assumption of the risk.

Strelow’s injury occurred at about 9:30 p.m. in the beverage garden, which is

located in a fenced-in area on a paved parking lot in a Winona riverfront park. The area

is bounded by railroad tracks on the south side and a curbed sidewalk with streetlights

and trees on the north side, nearest the Mississippi River. In 2012, the beverage garden

contained (1) a beer tent on the west side of the lot; (2) a stage for bands in the center,

2 south area; (3) a sound booth for the bands in the center, north area; and (4) a single food

truck on the east side.

When Strelow arrived with her husband about 9:15 p.m., she sat at a picnic table

slightly to the east of the sound booth. After her husband went to get her a soda, the band

went on break, and representatives from a Winona radio station began tossing t-shirts and

Frisbees from the stage; the Frisbees had tickets to the Minnesota Zoo taped to them.

Strelow testified at a deposition that she gestured as if she wanted to catch a Frisbee, and

a person onstage threw one towards her, but it veered off course. She took about four to

six steps diagonally and slightly backwards, with her arm in the air, trying to catch it.

But she fell, rolled against a curb, and fractured her shoulder.

Strelow stated that she fell after tripping on electrical cords, which she felt move

slightly as she touched them wearing open-toed shoes. She stated that the cords were

“black, rubbery,” and “bigger than extension cords.” She did not know if they were

connected to anything, did not see them before she fell, and had not previously walked in

the area. She was unable to locate any witnesses to her fall. At her deposition, Strelow

drew a rough map of the area where she fell, placing the cords in the northeast portion of

the beverage garden, running to the east of the picnic table.1

Duane Strelow stated in a deposition that he was walking back to the picnic table

when he saw three or four uncovered black cords running from the food truck behind the

1 The presence and location of two other electrical cords—a covered cord connecting the sound booth with the stage and a cord connecting the stage to a token booth on the southeast side of the lot—are undisputed and not relevant to this appeal.

3 picnic table. He drew a line on his wife’s deposition map, placing the cords in a

somewhat different area than she did, extending from the southeast corner of the

beverage garden to the sidewalk on the north side. He stated that he did not see his wife

fall and did not know for sure if the cords he saw were those that she claims she tripped

over. He stated that, after she fell, he may have seen cords plugged into a power pole, but

he was not certain, and he could not recall whether he saw a pole on the north side when

he viewed the scene a week later.

The band provided its own sound system. Two Steamboat volunteers stated in

depositions that the only electrical power to the beverage garden was supplied from the

south side of the lot and that the food truck, the only vendor in the beverage garden, had

its own generator. An electrician stated that his company provided no cords or cables but

did provide electrical receptacles in two locations on the south side, and that to his

knowledge, no service existed on the north side.

After a hearing, the district court granted respondent’s motion for summary

judgment. The district court concluded that appellants failed to establish a prima facie

case of negligence because no evidence was presented that any cords ran over the

blacktop in the beverage garden at the location of Strelow’s fall. The district court did

not address respondent’s alternative grounds for summary judgment. The district court

also denied appellants’ subsequent motion for amended findings, concluding that the

4 issue of causation rested solely on appellants’ own allegations and was insufficient to

preclude summary judgment. This appeal follows.2

DECISION

Summary judgment is proper if, based on the entire record before the court, there

are no genuine issues of material fact and a party is entitled to judgment as a matter of

law. Minn. R. Civ. P. 56.03. “We review a district court’s grant of summary judgment

de novo to determine whether any genuine issue of material fact exists and whether the

district court erred in applying the law.” Larson v. Nw. Mut. Life Ins. Co., 855 N.W.2d

293, 299 (Minn. 2014). In so doing, this court views the evidence in a light most

favorable to the nonmoving party. Valspar Refinish, Inc. v. Gaylord’s, Inc., 764 N.W.2d

359, 364 (Minn. 2009). Summary judgment is inappropriate if reasonable persons, after

reviewing the evidence, might reach different conclusions. Jonathan v. Kvall, 403

N.W.2d 256, 259 (Minn. App. 1987), review denied (Minn. May 20, 1987). But the

moving party “is entitled to summary judgment as a matter of law when the record

reflects a complete lack of proof on an essential element of the [nonmoving party’s]

claim.” Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995). This court may

affirm summary judgment “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).

2 Although the district court initially ordered the dismissal of appellants’ claims without prejudice, this court has issued an order construing the judgment as dismissing the matter with prejudice.

5 “To recover on a claim of negligence, a plaintiff must prove: (1) the existence of a

duty of care; (2) a breach of that duty; (3) an injury; and (4) that the breach of the duty

was a proximate cause of the injury.” Doe 169 v. Brandon, 845 N.W.2d 174, 177 (Minn.

2014). The existence of a legal duty presents a question of law, which this court reviews

de novo. Gilbertson v. Leininger, 599 N.W.2d 127, 130 (Minn. 1999). In the absence of

a legal duty, a negligence claim fails. Id. at 130-31.

A property owner has a duty to use reasonable care to prevent persons from being

injured by conditions on the property if those conditions present a foreseeable risk of

injury. Hanson v. Christensen, 275 Minn. 204, 212, 145 N.W.2d 868, 873-74 (1966).

But even though landowners owe persons a duty to keep and maintain their premises in a

reasonably safe condition, they are not insurers of safety. Wolvert v. Gustafson, 275

Minn. 239, 241, 146 N.W.2d 172, 173 (1966). Unless the dangerous condition resulted

from the direct actions of a landowner or his or her employees, a negligence theory of

recovery is appropriate only when the landowner had actual or constructive knowledge of

the dangerous condition. Messner v. Red Owl Stores, 238 Minn. 411, 413, 57 N.W.2d

659, 661 (Minn. 1953). To prevail on a negligence claim, the plaintiff has “the burden of

proving either that defendant caused the dangerous condition or that it knew, or should

have known, that the condition existed.” Id. at 415, 57 N.W.2d at 662.

Constructive knowledge of a hazardous condition may be established based on

evidence that the condition was present for a period of time so as to constitute

constructive notice of the hazard. Anderson v. St. Thomas More Newman Ctr., 287 Minn.

251, 253, 178 N.W.2d 242, 243-44 (1970). But speculation on the cause or duration of a

6 dangerous condition is insufficient evidence of negligence to withstand summary

judgment against the claim. Rinn v. Minn. State Agric. Soc’y, 611 N.W.2d 361, 365

(Minn. App. 2000).

In her deposition, Strelow provided direct evidence that she tripped and fell over

cords that were located in the beverage garden. We disagree with the district court’s

conclusion that this evidence was insufficient to present a genuine issue of material fact

on whether her injury was caused by cords at that location. But in order to withstand

summary judgment, Strelow was also required to produce credible evidence tending to

show either that respondent caused the cords to be placed where she fell, or knew or

should have known about the existence of the cords. See Kowalske v. Armour & Co., 300

Minn. 301, 309, 220 N.W.2d 268, 273 (Minn. 1974) (stating that there “must be some

credible evidence from which an inference of negligence is permissible”), overruled in

part on other grounds by Ruberg v. Skelly Oil Co., 297 N.W.2d 746 (Minn. 1980). Here,

Strelow produced no evidence that any employee or agent of respondent knew that cords

existed in the location of her fall. She produced no evidence as to how long the cords had

been there or who placed them there. And she offered only speculation to support her

theory that the cords could have connected the food truck in the beverage garden to an

electrical outlet that could have been located on the north side of the area.3

3 Because Strelow presented only conjecture that an outlet might have existed on the north side of the beverage garden, we need not address her additional argument that respondents breached a statutory duty to properly inspect electrical equipment at that location.

7 “[W]hen the nonmoving party bears the burden of proof on an element essential to

the nonmoving party’s case, the nonmoving party must make a showing sufficient to

establish that essential element.” DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).

Based on the record evidence, we conclude that, when viewed in the light most favorable

to appellants, the evidence is insufficient to show that respondent had either actual or

constructive notice of the electrical cords at the location of her fall. See, e.g., Rinn, 611

N.W.2d at 365 (affirming summary judgment on negligence claim based on plaintiff’s

injury from slipping in puddle at horse show, when plaintiff did not present any evidence

showing what caused the puddle, what the liquid was, or that any staff had notice of it);

cf. Messner, 238 Minn. at 413-15, 57 N.W.2d at 661-62 (concluding that a grant of

judgment notwithstanding the verdict was proper where there was no direct evidence as

to how a banana peel causing a fall came to be on the floor, or how long it had been

there). Therefore, respondent owed no duty as a matter of law to warn or protect Strelow

from an injury relating to the cords and, on that basis, we affirm the district court’s grant

of summary judgment in favor of respondent.

Appellants argue alternatively that, even if no electrical cords existed where she

fell, respondent “was negligent in allowing its sponsor to toss Frisbees into the audience

standing in the parking lot surrounded by numerous trip hazards (including the parking

lot curb and the feet of other invitees) at dusk.” Because appellants did not argue this

theory before the district court, and the district court did not consider it, we need not

8 address it on appeal.4 See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding

that an appellate court need not address arguments not raised before, and considered by,

the district court).

Notwithstanding that the argument is waived, we note that appellants provide no

legal authority for imposing a duty on respondent, other than premises liability based on a

dangerous condition on the land. See Olmanson v. LeSueur Cnty., 693 N.W.2d 876, 881

(Minn. 2005) (discussing premises liability). “‘A possessor of land is not liable to his

invitees for physical harm caused to them by any activity or condition on the land whose

danger is known or obvious to them, unless the possessor should anticipate the harm

despite such knowledge or obviousness.’” Id. (quoting Restatement (Second) of Torts

§ 343A, subsection 1 (1965)). Whether a condition is a known or obvious danger, and

whether a landowner could anticipate that danger, generally present factual issues. Id.

But we have concluded in some situations that as a matter of law, a landowner or

possessor was not expected to anticipate that an obvious danger would cause harm to an

invitee. See, e.g., Sperr v. Ramsey Cnty., 429 N.W.2d 315, 317-18 (Minn. App. 1988)

(holding that a tree branch was obvious, and a possessor could not foresee that a person

would injure himself by running into it), review denied (Minn. Nov. 23, 1988); Lawrence

v. Hollerich, 394 N.W.2d 853, 856 (Minn. App. 1986) (affirming summary judgment,

concluding that the possessor had no duty to warn of a downward-sloping yard when the

4 Although appellants argued at the summary-judgment hearing that the Frisbee throwing distracted Strelow from viewing the cords on the ground, they did not argue that respondent was negligent based on any action independent of the cords’ existence.

9 only hazard, the steepness of the slope, was obvious), review denied (Minn. Dec. 17,

1986).

Here, apart from the existence of the cords, appellants have alleged no hidden

hazards that would have made the beverage garden more dangerous than it otherwise

appeared. The activities occurring were obvious; Strelow was aware that Frisbees were

being thrown in a crowded parking lot at dusk. And appellants have failed to produce

evidence that respondent should reasonably have foreseen that these conditions, even if

hazardous, might cause Strelow injury. Therefore, as a matter of law, respondent owed

no duty to protect or warn against those conditions.

Affirmed.