This opinion will be unpublished and may not be cited except as provided by Minn.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 A14-1994
Souhsiung Jack Chiu, Appellant,
vs.
Timbershore Home Owners’ Association, defendant and third party plaintiff, Respondent,
New Horizon Homes, Inc., Third Party Defendant.
Filed June 29, 2015 Reversed and remanded Larkin, Judge
Dakota County District Court File No. 19HA-CV-14-1026
Patrick K. Horan, Edina, Minnesota (for appellant)
Gerald H. Bren, Michael A. Breen, Fisher Bren & Sheridan LLP, Minneapolis, Minnesota (for respondent)
Considered and decided by Larkin, Presiding Judge; Reilly, Judge; and Reyes,
Judge. UNPUBLISHED OPINION
LARKIN, Judge
Respondent home owners’ association possesses a “full and complete” easement
to use a water pipe that runs under appellant townhome owner’s unit. Appellant sued
respondent for negligence and trespass after the water pipe leaked and flooded his unit.
The district court granted summary judgment for respondent, concluding that respondent
did not have a duty to repair the interior of appellant’s unit and that respondent was not
liable for trespass because it did not intentionally cause the water pipe to leak. Because
respondent has a common-law duty as an easement holder and there is a genuine issue of
material fact regarding whether respondent breached its duty, and because appellant’s
trespass claims do not require proof that respondent intentionally caused the water pipe to
leak and flood appellant’s unit, we reverse and remand.
FACTS
Appellant Souhsiung Jack Chiu owns a townhome in Eagan that is part of
respondent Timbershore Home Owners’ Association (Timbershore). Timbershore has an
easement for a water pipe that runs under Chiu’s townhome and serves an adjacent unit.
Chiu has not lived in the townhome since 1999, and at some point, he turned off the
water supply to the townhome. On October 11, 2011, Chiu’s neighbor notified Chiu that
there were signs of a water problem in Chiu’s townhome. Chiu immediately went to the
townhome and observed “quite a few inches” of standing water. He verified that the
water supply to his townhome was still off by testing the faucets.
2 On the morning of October 12, Chiu called Mike O’Brien, Timbershore’s vice
president, and notified him of the leak. O’Brien suggested the possibility of a broken
pipe. At approximately 2:00 p.m., O’Brien visited Chiu’s townhome and observed water
infiltration in the unit. Chiu told O’Brien, “It’s not my water. . . . I think it’s [the]
association’s. It’s not my department. It’s [the] association’s department and I need
help. I don’t know what to do.” O’Brien “indicated there was nothing he could do.”
The source of the leak turned out to be the water pipe that runs under Chiu’s
townhome and serves the adjacent unit. The water supply to that pipe was not turned off
until October 14. Thus, the leakage continued unabated for approximately two days after
Timbershore had actual knowledge of the leak and the water intrusion in Chiu’s
townhome. Timbershore repaired the water pipe on October 14, but it refused to
compensate Chiu for any resulting water damage to the interior of his townhome, which
has been estimated at $49,006.
Chiu sued Timbershore for negligence and trespass. Timbershore moved for
summary judgment, arguing that Chiu’s claims fail because “he cannot establish that
[Timbershore] breached a duty to [him] or that any intentional act by [Timbershore]
caused a trespass to [his] land or chattels.” Timbershore’s submissions in support of
summary judgment included a 1971 “declaration of covenants, restrictions, and
easements” (declaration); a 2004 memorandum from the association regarding its “sewer
system maintenance and repair policy”; and an advisory from the association labeled
“Very Important!!!”
3 The original parties to the declaration were Timbershore and New Horizon Homes
Inc., the constructor and original owner of the Timbershore townhomes.1 The declaration
contains the following provision:
Section 4. Sewer and Water Easement. Whereas, [New Horizon Homes] has, or may, construct units with certain sewer and water pipes . . . . NOW THEREFORE, [New Horizon Homes] does hereby declare that [Timbershore] and each dwelling unit and the lot occupied thereby upon which [New Horizon Homes] has or does hereafter build is granted full and complete easement and right to use such pipes and facilities. Full right of access for maintenance and repair at reasonable hours is hereby granted each dominant parcel and [Timbershore]. Expense of repair or maintenance shall be common expenses of [Timbershore].
The declaration is silent regarding Timbershore’s responsibility, or lack thereof,
for maintenance and repairs of individual townhome interiors. However, the 2004
memorandum states that Timbershore’s obligation “for maintenance and repair of the
main sewer system is limited to failure of the system, only,” that Timbershore “shall not
pay for any damage to the townhome unit caused by failure of the main sewer system,”
and that “[a]ny such damage to the townhome unit is the homeowner’s responsibility.”
The “Very Important” advisory instructs owners to “[k]eep the outside water pipes from
freezing and your home from flooding” and states that “[i]nside damage to your home
from broken pipes, is the homeowners’ responsibility. The association does not cover
damage on the insides of your homes. . . . [T]hat is why you must have a deductible on
your [homeowner’s] insurance that you feel comfortable with.”
1 Timbershore named New Horizon Homes as a third-party defendant, but New Horizon Homes is not a party to this appeal.
4 The district court granted Timbershore’s motion for summary judgment. The
district court concluded that Timbershore’s duty regarding the water and sewer pipes “is
defined exclusively by the [d]eclaration,” that Timbershore “has no duty to repair the
interior of [Chiu’s] unit,” and that “absent such a duty, [Chiu’s] negligence claims fail as
a matter of law.” The district court also concluded that Chiu’s trespass claims fail
because trespass is an intentional tort and it could find “no act that set in motion a
wrongful intrusion upon [Chiu’s] property.”
Chiu appeals.
DECISION
“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 of law.” Fabio v. Bellomo, 504 N.W.2d 758, 761
(Minn. 1993). “When hearing motions for . . . summary judgment, [district] courts are
not asked to weigh evidence, determine credibility, resolve factual disputes, and decide
the merits of a plaintiff’s case. Instead, a court’s duty . . . is simply to determine whether
genuine issues of material fact exist, not how such issues should be resolved.” Foley v.
WCCO Television, Inc., 449 N.W.2d 497, 506 (Minn. App. 1989) (quotation and
emphasis omitted), review denied (Minn. Feb. 9, 1990), cert. denied, 497 U.S. 1038
(1990). A genuine issue of fact exists if reasonable persons might draw different
conclusions based on the evidence. DLH, Inc. v. Russ, 566 N.W.2d 60, 70 (Minn. 1997).
“A party need not show substantial evidence to withstand summary judgment. Instead,
5 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 Cnty., 708 N.W.2d 497, 507 (Minn. 2006).
Appellate courts “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). “[T]he reviewing court must view the evidence in the light most favorable to
the party against whom judgment was granted.” Fabio, 504 N.W.2d at 761. “Because
summary judgment is a blunt instrument, its use should be limited to cases in which it is
perfectly clear that no issue of fact is involved.” Foley, 449 N.W.2d at 506 (quotations
omitted).
Before we proceed with our analysis, we note that this case is an anomaly in the
realm of Minnesota caselaw regarding an association’s liability for damages to an
individual unit in the association. Claims for damages in such cases are usually based on
a contract theory and the governing declaration, or on statutes. See, e.g., Jensen-Re
P’ship v. Superior Shores Lakehome Ass’n, 681 N.W.2d 42, 43 (Minn. App. 2004)
(condominium owner alleged that association breached contract and duties established
under the Minnesota Uniform Condominium Act by refusing to repair sloped floor in
owner’s unit), review denied (Minn. Sept. 21, 2004); Busby v. Groves Homeowners
Ass’n, No. C6-99-2204, 2000 WL 1239760, at *1-2 (Minn. App. Sept. 5, 2000) (owner
alleged that association breached contract by failing to make plumbing repairs); Swanson
6 v. Parkway Estates Townhouse Ass’n, 567 N.W.2d 767, 768 (Minn. App. 1997)
(townhome owner alleged that declaration required association to reimburse her for costs
incurred repairing patio door). In those cases, the declarations often addressed the
responsibility of the association and unit owners to maintain and repair common areas
and unit interiors. See, e.g., Busby, 2000 WL 1239760, at *2 (noting that occupancy
agreement between unit owner and association “required the unit owner to repair and
maintain interior plumbing”); Swanson, 567 N.W.2d at 768-69 (noting that townhouse
declaration stated that the association “shall provide exterior maintenance upon each Lot
which is subject to assessment hereunder”); see also Gallery Tower Condo. Ass’n v.
Carlson, No. A10-1403, 2011 WL 2302701, at *4 (Minn. App. June 13, 2011) (noting
that condominium association’s declaration “provides that the association ‘shall be
responsible for necessary maintenance and repair of the common elements’”), review
denied (Minn. Aug. 24, 2011).
Here, the declaration is silent regarding the association’s responsibility for
maintenance and repairs of individual units. And there is no claim that the responsibility
is governed by statute. See, e.g., Minn. Stat. § 515B.3-102(a)(6) (2014) (stating that,
subject to the declaration’s provisions, the association has the power to “regulate the use,
maintenance, repair, replacement, and modification of the common elements and the
units”); § 515B.3-107(a) (2014) (stating that, unless the declaration provides otherwise,
“the association is responsible for the maintenance, repair and replacement of the
common elements, and each unit owner is responsible for the maintenance, repair and
7 replacement of the unit owner’s unit”). Having noted the unique circumstances in this
case, we proceed with our analysis of Chiu’s negligence and trespass claims.
I.
We first address the district court’s grant of summary judgment for Timbershore
on Chiu’s negligence claims. Chiu’s complaint sets forth two negligence claims. One
alleges that Timbershore negligently maintained the water pipe, and the other alleges that
Timbershore negligently refused to turn off the water supply to the leaking pipe. To
prevail on a negligence claim, Chiu 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 of care was a
proximate cause of the injury.” Domagala v. Rolland, 805 N.W.2d 14, 22 (Minn. 2011).
The existence of a duty “is a threshold question because in the absence of a legal
duty, the negligence claim fails.” Id. (quotation omitted). Whether a duty exists “is a
legal question to be determined by the judge, not the jury.” Balder v. Haley, 399 N.W.2d
77, 81 (Minn. 1987). “A duty is an obligation, to which the law will give recognition and
effect, to conform to a particular standard of conduct toward another.” Vaughn v. Nw.
Airlines, Inc., 558 N.W.2d 736, 742 (Minn. 1997). “Whether a duty is imposed depends
. . . on the relationship of the parties and the foreseeable risk involved.” Erickson v.
Curtis Inv. Co., 447 N.W.2d 165, 168-69 (Minn. 1989). “The existence of a duty of care
is a question of law that [appellate courts] review de novo.” Domagala, 805 N.W.2d at
22.
The district court’s determination that Timbershore’s “duty relative to the water
and sewer pipe . . . is defined exclusively by the [d]eclaration” is not supported by the
8 record or caselaw. The declaration does not expressly obligate Timbershore to conform
to any particular standard of conduct. It simply grants Timbershore “full and complete
easement and right to use” the sewer and water pipes, including “[f]ull right of access for
maintenance and repair.” In fact, Chiu does not allege that Timbershore violated a duty
under the declaration. He argues that Timbershore violated its common-law duty, as an
easement holder, to maintain the easement and keep it in good repair. Caselaw supports
Chiu’s position.
In Matter v. Nelson, this court recognized that:
Under the common law of easements, the [easement holder is] responsible for any damage resulting from a failure to maintain or repair an easement, absent any separate agreement. Furthermore, the owner of a dominant estate is liable for damages resulting from a misuse of the easement.
478 N.W.2d 211, 214 n.1 (Minn. App. 1991) (citation omitted). The Nelson court cited
what is now an outdated section of the Corpus Juris Secundum on easements as support.
Id. (citing 28 C.J.S. Easements §§ 93, 94(c) (1941)). However, the current C.J.S. sets
forth the same rules. See 28A C.J.S. Easements §§ 229 (“The owner of an easement is
responsible for any damage resulting from a failure to maintain or repair the easement,
absent any separate agreement.”), 214 (“The owner of the dominant estate is liable for
damages resulting from a misuser of the easement . . . .”) (2008).
Moreover, the Nelson court’s statement regarding the common-law duty of an
easement holder is consistent with Minnesota Supreme Court caselaw addressing the
obligations of an easement holder. For example, the supreme court has stated that an
easement holder “must exercise [the] right [to use the easement] reasonably, without
9 doing unnecessary injury to [the servient landowner’s] property or business.” Giles v.
Luker, 215 Minn. 256, 260, 9 N.W.2d 716, 718 (1943). The supreme court has also
stated that “[i]f an easement holder expressly agrees to pay for damages to the servient
property as a result of exercising the rights under the easement grant, then the easement
holder is liable for such damages without regard to negligence.” Bergh & Misson Farms,
Inc. v. Great Lakes Transmission Co., 565 N.W.2d 23, 26 (Minn. 1997) (quotation
omitted). That statement indicates that an action for damages resulting from the exercise
of easement rights may be based on negligence so long as the easement does not
expressly define the easement holder’s liability for such damages. See id. at 27 (stating
that “[b]ecause the right-of-way agreement specifically defines Great Lakes’ rights and
responsibilities with respect to accessing the pipeline easement,” “the only real issue for
trial was the amount of damages Great Lakes was required to pay for damage . . .
resulting from its exercise of its rights under the right-of-way agreement”).
The easement here does not expressly require Timbershore to pay for damages
resulting from the exercise of its easement rights. Nor does the declaration contain
exculpatory language limiting Timbershore’s liability for damages resulting from the
exercise of those rights. See Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 922-23
(Minn. 1982) (stating that the parties to a contract may use exculpatory clauses to
“protect themselves against liability resulting from their own negligence”). Moreover,
Timbershore does not contend that its 2004 memorandum and “Very Important” advisory
regarding the townhome owners’ responsibility for interior damage are enforceable
exculpatory clauses, noting that they are not “exculpatory clauses per se.” Instead,
10 Timbershore contends that “the memoranda reflect the risk allocation intended by the
[d]eclaration.”
“The operative documents that govern a townhome association constitute a
contract between the association and its individual members” and “[w]here the language
is ambiguous resort may be had to extrinsic evidence.” Swanson, 567 N.W.2d at 768
(quotation omitted). But “[w]here contractual language is unambiguous on its face, no
extrinsic evidence is required to interpret a contract’s terms.” Finke v. State, 521 N.W.2d
371, 372 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994). Timbershore does not
argue that the declaration is ambiguous or offer legal argument or authority explaining
why it is appropriate to consider extrinsic evidence of the parties’ intent regarding the
declaration. We therefore do not consider whether the memorandum or advisory limit
Timbershore’s liability.
In sum, caselaw recognizes that an easement holder has a common-law duty to
maintain and repair the easement and not to misuse the easement. Here, the easement
granted in the declaration triggers that common-law duty, and it provides a basis for
Chiu’s negligence claims.2 The district court therefore erred by concluding that Chiu’s
negligence claims fail for lack of a duty.
2 We note that this is not a case in which a contract creates a duty that does not otherwise exist and, therefore, in which recovery for breach of that duty is limited to a contract claim. See Glorvigen v. Cirrus Design Corp., 816 N.W.2d 572, 584 (Minn. 2012) (stating that, in a case where sales contract created duty to provide flight lessons, party was precluded from recovering in tort for breach of that duty because “[w]here a party cannot prove that the duty at issue arose independent of a contract, Minnesota law precludes that party from recovering in negligence based upon breach of that duty”
11 Our conclusion that Timbershore has a common-law duty as an easement holder to
maintain and repair the easement and not to misuse the easement does not end our
analysis of Chiu’s negligence claims. Timbershore argues that summary judgment is
appropriate because Chiu did not offer evidence that Timbershore “breached a standard
of care with respect to the maintenance of the water pipe.” See Winkler v. Magnuson,
539 N.W.2d 821, 828 (Minn. App. 1995) (stating that this court will affirm summary
judgment “if it can be sustained on any ground”), review denied (Minn. Feb. 13, 1996).
“[T]he nature and character of reasonable care depends upon the circumstances of the
individual case.” Otto v. City of St. Paul, 460 N.W.2d 359, 361 (Minn. App. 1990).
“The question becomes what was the character and extent of the [defendant’s] duty under
these circumstances.” Id.
Timbershore stated, in response to an interrogatory posed by Chiu, that “no testing
or maintenance procedures were completed on the water supply lines under [Chiu’s] unit
prior to October 2011.” The record shows that the water pipe under Chiu’s townhome
was installed before Chiu purchased the townhome in 1973. The record also suggests
that Timbershore was aware of the risk of leaking water pipes and the potential damage
to townhome interiors, as shown by its “Very Important!!!” advisory on the subject.
Furthermore, it is undisputed that after Chiu notified Timbershore of the water infiltration
caused by Timbershore’s water pipe, Timbershore allowed the water leak to continue
unabated for two days. Viewing the evidence in the light most favorable to Chiu, there is
(quotation and alterations omitted)). Here, the declaration creates the easement, but the relevant duty exists at common law.
12 a genuine issue of material fact regarding whether Timbershore breached its common-law
duty to maintain and repair its easement and not to misuse its easement.
II.
We next address the district court’s grant of summary judgment in favor of
Timbershore on Chiu’s trespass claims. Chiu’s complaint sets forth two trespass claims.
One is based on trespass to his land (i.e., his townhome), and the other is based on
trespass to his chattels (i.e., his personal property). The district court’s analysis regarding
Chiu’s trespass claims is as follows:
The Court also concludes that [Chiu’s] trespass claims are intentional torts and that the alleged trespasser must have an objective intent to do an act that sets in motion a wrongful intrusion upon [Chiu’s] property. Here, the Court can find no act that set in motion a wrongful intrusion upon [Chiu’s] property.
The Restatement (Second) of Torts sets forth several ways that a defendant may
commit trespass, many of which have been cited with approval by the Minnesota
Supreme Court. See Victor v. Sell, 301 Minn. 309, 313-14, 222 N.W.2d 337, 340 (1974)
(citing Restatement (Second) of Torts §§ 158, 160, 161 (1965)). For instance, section
158 describes liability for intentional intrusions on land as follows:
One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enters land in the possession of the other, or causes a thing or a third person to do so, or .... (c) fails to remove from the land a thing which he is under a duty to remove.
13 Restatement (Second) of Torts § 158. Under subsection (a), the requisite intentional act
occurs at the time of entry (i.e., the defendant intentionally enters or intentionally causes
a thing to enter). But under subsection (c), the requisite intentional act occurs after entry:
an intentional failure to remove a thing constitutes a trespass, so long as the defendant
had a duty to remove the thing. Under the plain language of subsection (c), the original
placement of the thing need not be intentional.
Like section 158(c), section 161 provides that a defendant’s failure to remove a
thing may constitute trespass. Specifically, section 161 provides: “A trespass may be
committed by the continued presence on the land of a structure, chattel, or other thing
which the actor has tortiously placed there, whether or not the actor has the ability to
remove it.” Restatement (Second) of Torts § 161. As used in section 161, “tortious”
means “conduct, whether of act or omission, [that] is of such a character as to subject the
actor to liability under the principles of the law of Torts.” Restatement (Second) of Torts
§ 161 cmt. a. Under that definition, a “tortious” placement could be based on a negligent
act. And under section 161, a failure to remove a thing can constitute “a continuing
trespass for the entire time during which the thing is wrongfully on the land.” Id. cmt. b.
The district court’s reasoning that Timbershore must have committed an act that
set in motion a wrongful intrusion upon Chiu’s property is correct, but only as to a
trespass theory based on the initial entry under section 158(a). However, Chiu’s trespass
claims are consistent with a failure-to-remove theory under sections 158(c) and 161.
Based on his negligence claim, Chiu can argue, under section 158(c), that Timbershore
had a common-law duty to remove the infiltrating water from his townhome—that is, to
14 turn off the water supply to the leaking pipe—and that Timbershore trespassed by
intentionally failing to do so. Chiu can also argue, under section 161, that Timbershore
tortiously placed the leaking water in his townhome and allowed it to remain there by
failing to turn off the water supply.
Timbershore argues that section 161 is inapplicable because Timbershore did not
intentionally cause the leaking water to infiltrate Chiu’s property. Timbershore relies on
Victor v. Sell, in which the Minnesota Supreme Court stated that “if there were no initial
tortious trespass, there could be no trespass by failure to remove a chattel tortiously
placed on the land under [section] 161.” 301 Minn. at 314, 222 N.W.2d at 340.
Timbershore contends that Victor requires “an intentional entry before failure to remove
constitutes a trespass.” But neither Victor’s discussion of section 161 nor section 161
itself uses the word “intentional.” Both use the word “tortious.” And as used in section
161, “tortious” means “conduct, whether of act or omission, [that] is of such a character
as to subject the actor to liability under the principles of the law of Torts.” Restatement
(Second) of Torts § 161 cmt. a. Thus, the initial entry under section 161 could be a
result of a negligent act or a negligent failure to act. Chiu argues that Timbershore’s
negligence caused the initial leak, as well as the continued water infiltration. If Chiu
proves his negligence claims, that may impact whether the entry of the leaking water into
his unit was “tortious” under section 161.
Chiu argues that his trespass claims also find support under section 160 of the
Restatement, “Failure to Remove Thing Placed on Land Pursuant to License or Other
Privilege.” See Restatement (Second) of Torts § 160. However, section 160 requires a
15 plaintiff to have consented to the defendant placing a thing on the plaintiff’s land or that
the defendant had a privilege to place the thing on the plaintiff’s land. Id. Because there
is no evidence that Chiu consented to the water infiltration or that Timbershore had a
privilege to allow the water infiltration, section 160 does not support Chiu’s claims.
Lastly, we note that the Minnesota Supreme Court’s most recent case regarding
the law of trespass, Johnson v. Paynesville Farmers Union Coop. Oil Co., 817 N.W.2d
693 (Minn. 2012), is not inconsistent with our reasoning. The issue in that case was
whether an intangible entry may constitute a trespass. Id. at 700. The supreme court held
that a trespass requires a tangible invasion that interferes with possession. Id. at 705. If
there is no tangible invasion or interference with possession, no trespass occurs. Id. Chiu
has alleged a tangible invasion (i.e., water infiltration from Timbershore’s leaking water
pipe) and interference with possession (i.e., water damage to his townhome and personal
property). Thus, Johnson does not preclude Chiu’s trespass claim against Timbershore.
In sum, although intent may be required to establish trespass, the requisite
intentional act may be the failure to remove a thing from another person’s land where
there is a duty to remove, instead of an intentional entry of the land. See Restatement
(Second) of Torts § 158(a), (c). Trespass may also be based on the continued presence of
a thing that was negligently placed on another person’s land. Restatement (Second) of
Torts § 161. Given the multiple forms of trespass that have been recognized by
Minnesota appellate courts, the district court erred in concluding that Chiu’s trespass
claims fail because he did not present evidence that Timbershore intentionally set a
wrongful intrusion in motion.
16 Conclusion
In conclusion, Timbershore has a common-law duty, as an easement holder, to
maintain and repair its easement and not to misuse its easement. And, there are genuine
issues of material fact regarding whether Timbershore breached that duty. We therefore
reverse the district court’s grant of summary judgment for Timbershore on Chiu’s
negligence claims. And because Minnesota law allows Chiu’s trespass claims even
though Timbershore did not intentionally set the water infiltration in motion, we reverse
the district court’s grant of summary judgment for Timbershore on Chiu’s trespass
claims. We remand for further proceedings consistent with this opinion.
Reversed and remanded.