Berge
v.
American Welding Supplies, Inc.

Minnesota Court of AppealsAug 25, 1998
No. C5-98-367. (Minn. Ct. App. Aug. 25, 1998)

No. C5-98-367.

Filed August 25, 1998.

Appeal from the District Court, Kandiyohi County, File No. C7961531.

William F. Bannon, Johnson Bannon, PLLP, (for appellant).

Gordon H. Hansmeier, Lotte R. Hansen, Rajkowski Hansmeier Ltd., (for respondent American Welding Supplies).

Nancy Gores, (for respondent West Central Steel).

Steven Schwegman, (for third-party defendant Chappell Central).

Considered and decided by Schumacher, Presiding Judge, Randall, Judge, and Kalitowski, Judge.


This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).


UNPUBLISHED OPINION


KALITOWSKI, Judge.

Appellant Thomas Berge challenges the district court's summary judgment in favor of respondent American Welding Supplies, Inc. Appellant claims the district court erred when it determined that respondent, a past possessor of the garage door that fell on appellant, had no duty to subsequent possessors regarding negligent use of the overhead door as a storage shelf. We affirm.

DECISION

"On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law." State by Cooper v. French , 460 N.W.2d 2, 4 (Minn. 1990). A reviewing court is not required to give any deference to the district court's resolution of legal issues. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n , 358 N.W.2d 639, 642 (Minn. 1984). The existence of a legal duty is an issue of law for the court to determine. Larson v. Larson , 373 N.W.2d 287, 289 (Minn. 1985).

Generally, a prior owner of real property is not liable for injuries to a third person resulting from the condition of the property when the purchaser took possession. Carlson v. Hampl , 284 Minn. 85, 87, 169 N.W.2d 56, 57 (1969). Here, respondent was the prior possessor rather than the prior owner of the property. The district court's application of the rule here is appropriate, however, because respondent had relinquished both possession and control of the property and the corresponding right to correct the dangerous condition. Other jurisdictions have supported application of the "prior owner" rule to prior possessors. See Parrott v. United States , 181 F. Supp. 425, 429 (S.D.Cal. 1960).

Even after the transfer of title, a prior owner of real property may be held liable for dangerous conditions in some circumstances.

The vendee must not know of the condition or the risk involved, and the vendor must "know" or "have reason to know" of the condition, realize the risks, and have reason to believe that the vendee will not discover the condition or realize the risk.

Friberg v. Fagen , 404 N.W.2d 400, 402 (Minn.App. 1987) (citations omitted). Liability continues only until the vendee has had a reasonable opportunity to discover the risk and remedy the defect. Id. Thus, respondent could be liable to appellant after the transfer of possession only if appellant did not know of a dangerous condition, of which respondent knew or should have known.

The district court properly determined respondent owes no legal duty to appellant. The undisputed record indicates appellant not only knew of the materials stored on the door but that he and his employer also stored materials on the door. Thus, appellant rather than respondent had the ability to correct the alleged dangerous condition. The district court properly determined, as a matter of law, that respondent owed no legal duty to appellant regarding use of the door.

Finally, we note that respondent's argument that appellant's claim on appeal was dismissed with the other claims is misplaced. At the request of the parties, the district court dismissed the outstanding claims, with the exception of the claim between respondent and appellant for which summary judgment had been previously granted, thus allowing this appeal.

Affirmed.