BRANDENBURGv.MINNEHAHA WHS. LIQ

Minnesota Court of AppealsMay 14, 1996
Nos. C1-95-2277, C6-95-2288. (Minn. Ct. App. May. 14, 1996)

Nos. C1-95-2277, C6-95-2288.

Filed May 14, 1996.

Appeal from the District Court, Hennepin County, File No. 952440.

Stewart R. Perry, Shane C. Perry, (for Appellants C1-95-2277; Respondents C6-95-2288)

Mark M. Nolan, (for Respondent C1-95-2277)

Kenneth P. Gleason, (for Appellants C6-95-2288)

Considered and decided by Harten, Presiding Judge, Huspeni, Judge, and Peterson, Judge.


This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1994).


Unpublished Opinion


PETERSON, Judge (Hon. Daniel H. Mabley, District Court Trial Judge)

Appellants Vernon and Louise Brandenburg and intervenor-appellants, John Deere Insurance Company and Victor C. Osfar d/b/a Energy Efficient Exteriors, challenge the district court's grant of summary judgment in favor of respondent Minnehaha Warehouse Liquors. We affirm.

Facts

Respondent Minnehaha Warehouse Liquors operates a retail liquor store, which is located on a block in Minneapolis that includes other businesses and a parking lot for Minnehaha's customers. The driveway to the parking lot crosses a city sidewalk. Appellant Vernon Brandenburg was injured when he slipped and fell on the sidewalk at the point where it is crossed by the driveway. Brandenburg testified that on the date of the accident there was patchy ice on the sidewalk. He said that the driveway was rutted because of water and ice build-up caused by motor vehicles using the driveway.

The managers of Minnehaha testified that they were not aware of the condition of the area where Brandenburg fell. Witnesses testified that Minnehaha's parking lot was not used only by Minnehaha's customers for parking. Drivers who were not customers also drove through the parking lot as a shortcut.

The district court granted Minnehaha's motion for summary judgment, finding (1) Minnehaha owed no duty of care to Brandenburg; (2) civil liability could not be imposed based on Minneapolis, Minn., Code of Ordinances § 445.40 (1991); and (3) there was no evidence to show an extraordinary use of the driveway or a voluntary undertaking by Minnehaha to maintain the sidewalk.

Decision

On appeal from a summary judgment, we ask whether any genuine issues of material fact exist and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).

1. It has long been the law in Minnesota that

the duty of keeping a sidewalk in a reasonably safe condition for travel is upon the city or municipality and not on the abutting owners or occupants, and the abutting owner or occupant is not liable for any defect therein unless created by him or his agents or servants. In other words, the duty of keeping a sidewalk in a reasonably safe condition for travel is placed on the city and is not on abutting owners or occupants unless they created the defect or dangerous condition or were negligent in maintaining in a dangerous and defective condition facilities erected on the sidewalk for their convenience or for the benefit of their building. Persons who own or occupy property abutting on a sidewalk are not liable to pedestrians for injuries sustained in consequence of stumbling or slipping on ridges or hummocks of snow and ice which form from natural causes on the sidewalk.

Sternitzke v. Donahue's Jewelers, 249 Minn. 514, 519-20, 83 N.W.2d 96, 100 (1957).

[T]hese principles of liability are not changed by the fact that the affected portion of the sidewalk is crossed by a driveway which is used by customers of an abutting occupant.

Graalum v. Radisson Ramp, Inc. 245 Minn. 54, 60, 71 N.W.2d 904, 908 (1955).

Before 1986, cities were granted immunity under Minn. Stat. § 466.03, subd. 4 (1984) for "[a]ny claim based on snow or ice conditions on any highway or other public place." In 1986, Minn. Stat. § 466.03, subd. 4 was amended to extend municipal immunity to

[a]ny claim based on snow or ice conditions on any highway or public sidewalk that does not abut a publicly-owned building or publicly-owned parking lot * * *.

1986 Minn. Laws ch. 455, § 65.

Appellants argue that because the city is now immune from liability for claims based on snow or ice conditions on sidewalks, the abutting landowners can no longer be protected from liability. Citing Sternitzke, appellants contend that the rationale for not imposing a duty on abutting landowners to maintain sidewalks was that to do so would be an improper delegation of the city's duty. Now that the city no longer has that duty, appellants conclude, there cannot be an improper delegation of the duty, and the landowner's defense, which was dependent on the city's responsibility, has disappeared.

Appellant's reliance on Sternitzke is misplaced. Sternitzke did not hold that an abutting landowner has no duty to maintain a city sidewalk because the city cannot delegate its duty; Sternitzke simply recognized the long-existing common law rule that an abutting landowner has no duty and held that a city ordinance that required a business owner to clear ice and snow from the public sidewalk did not create a duty owed to individual pedestrians. 249 Minn. at 519-20, 522, 83 N.W.2d at 100, 101.

Because the common law rule that an abutting landowner owes no duty to sidewalk users is not dependent on the existence of municipal liability, we are not persuaded that granting cities immunity for claims based on snow or ice conditions on sidewalks automatically imposed on abutting landowners a duty that did not previously exist.

2. Appellants argue that continuing the rule protecting abutting landowners from liability unconstitutionally denies injured persons redress for their injuries.

Minnesota Constitution article I, section 8 provides that "[e]very person is entitled to a certain remedy in the laws for all injuries or wrongs * * *." The Minnesota Supreme Court has explained that

[a]rticle I, section 8 of the Minnesota Constitution only assures remedies for rights that vested at common law. The purpose of the section is to protect common law rights and remedies for which the legislature has not provided a reasonable substitute.

Hickman v. Group Health Plan, Inc., 396 N.W.2d 10, 14 (Minn. 1986).

As was explained above, under the common law in Minnesota the city, not abutting landowners, has the duty to keep sidewalks in a reasonably safe condition for travel. Sternitzke, 299 Minn. at 519-20, 83 N.W.2d at 100. There is no common law right to sue an abutting property owner for injuries caused by slipping and falling on a city sidewalk. Id., 83 N.W.2d at 100. Therefore, appellants have not been deprived of a common law right to sue Minnehaha.

3. Appellants argue the district court erred in concluding that liability cannot be imposed on Minnehaha based on Minneapolis, Minn., Code of Ordinances § 445.40 (1991). Intervenor-appellants contend liability also could be imposed based on Minneapolis, Minn., Code of Ordinances § 319.260 (1991). Both ordinances require business owners to keep their driveways free from ice and snow. Id.; Minneapolis, Minn., Code of Ordinances § 445.40.

Because it was not argued in the district court that liability should be based on Minneapolis, Minn., Code of Ordinances § 319.260, we will not address that issue. See Waldner v. Peterson, 447 N.W.2d 217, 219 (Minn.App. 1989) (review limited to those issues that were raised in and decided by district court).

In Sternitzke, the plaintiffs argued that the abutting property owner should be liable because it failed to clear ice and snow from the sidewalk in violation of a city ordinance. 249 Minn. at 522, 83 N.W.2d at 101. The court rejected this argument stating:

The violation of an ordinance of the sort plaintiffs refer to in their complaints does not establish liability of the violator to one injured thereby but only to the municipality alone.

Id., 83 N.W.2d at 101; see also Rudd v. Lyceum Dramatic Prods., Inc., 250 Minn. 328, 331 n. 5, 85 N.W.2d 61, at 63 n. 5 (1957) ("even where there is a snow-removal law the abutting landowner is not civilly liable to third persons for violations thereof"). Accordingly, liability cannot be premised on Minneapolis, Minn., Code of Ordinances § 445.40.

4. Appellants contend that summary judgment was improper because there is a fact question whether Minnehaha's use of the sidewalk is an extraordinary use. In Graalum, the supreme court created an exception to the general rule that abutting landowners are not liable for failing to keep the sidewalk free from ice and snow. 245 Minn. at 60, 71 N.W.2d at 908.

[W]here an abutting owner or occupant makes an extraordinary use of a sidewalk for his own convenience, he owes a duty to the public to exercise due care in seeing that the affected portion of the sidewalk is maintained in a safe condition for the passage of pedestrians.

Id., 71 N.W.2d at 908.

An extraordinary use may

arise from acts which, though intrinsically consistent with the usual function of a sidewalk or driveway when conducted in a normal manner and context, lose their customary status because they are performed in such unusual volume and under such conditions that they unduly interfere with a safe and normal use of the affected portion of the sidewalk. Vehicular travel over a sidewalk to an abutting occupant's place of business may, periodically or otherwise, become so heavy that a sidewalk ceases to perform its normal function as a reasonably safe route for pedestrian travel.

Id. at 61, 71 N.W.2d at 909.

In Graalum, the evidence showed approximately 4,000 pedestrians used the sidewalk each hour during rush hour traffic, and 570 cars crossed the sidewalk each way during work hours on the day of the accident. Id. at 61-62, 71 N.W.2d at 909.

The only evidence appellants presented regarding the number of cars that crossed the sidewalk each day was Minnehaha's general manager's testimony that it was "[a] considerable number." This evidence is insufficient to create a fact question whether Minnehaha's use of the property was extraordinary. See Moundsview Indep. Sch. Dist. No. 621 v. Buetow Assocs., Inc., 253 N.W.2d 836, 838 (Minn. 1977) (nonmoving party must demonstrate at time summary judgment motion is made that specific facts exist that create genuine issue for trial and cannot rely on general statements of fact to oppose motion).