Opinion
No. CX-99-410.
Filed August 3, 1999.
Appeal from the District Court, Hennepin County, File No. 986726.
David O.N. Johnson, Milavetz Gallop Milavetz, P.A., (for appellants)
James K. Helling, Jardine, Logan O'Brien, P.L.L.P., (for respondent Gateway)
Timothy W. Waldeck, Waldeck Lind, P.A., (for respondents One Way Sweeping, et al)
Brian A. Wood, Eric J. Magnuson, John R. Neve, Rider Bennett Egan Arundel L.L.P., (for respondents Target, et al.)
Considered and decided by Harten, Presiding Judge, Parker, Judge, and Thoreen, Judge.
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Appellant challenges the summary judgment granted to respondents, arguing that her slip and fall injury was caused by respondents' breach of their duty to clear their sidewalks of snow and slush and that the district court improperly excluded an affidavit showing that the sidewalk was dangerous. Because we conclude that respondents did not breach their duty to clear the sidewalk, and because the district court did not abuse its discretion in excluding the affidavit, we affirm.
FACTS
At approximately 8:30 a.m. on November 28, 1994, appellant Dolores Harrington and a neighbor went shopping at respondent Gateway Foods, doing business as Rainbow Foods, Inc., a 24-hour grocery store. Rainbow is located at Knollwood Mall in St. Louis Park, which is owned by respondent Gator Knollwood Partners, Ltd. Respondent One Way Sweeping, Inc., was under contract to clear the snow from Rainbow's parking lot and sidewalk.
Appellant testified that approximately six to eight inches of snow had fallen on November 27. A chronological precipitation report indicates that the bulk of the snow fell on the morning of November 27, but that it continued snowing until 6 p.m. the next day, with .01 of an inch of water precipitation falling between 3 and 4 a.m., and .01 falling hourly from 7 a.m. to 12 a.m. Trace amounts fell at all other material times.
For purposes of the summary judgment motion, respondent Target based its argument on the assumption that six to eight inches of snow fell on November 27, and none thereafter. However, that assumption was not stipulated. The district court received undisputed evidence that snow also fell on November 28.
When appellant and her neighbor arrived at the mall, the condition of the sidewalks and parking lots was poor; they were covered with approximately five inches of slushy snow, which had not been plowed, sanded, or salted. Appellant went into the store, shopped, and brought her groceries out to the sidewalk where she met her neighbor. The neighbor informed appellant that it was very slippery; she had fallen three times. The neighbor drove her car to the store entrance. After loading her groceries into the car, appellant gave her grocery cart a slight push toward the building. Despite having her feet flat on the sidewalk, appellant slipped and fell. Appellant and her husband then brought this action against respondents. The district court granted respondents' motion for summary judgment. This appeal followed.
DECISION
1. Standard of Review
On appeal from summary judgment, we ask whether there are any issues of material fact, and whether the district court erred in applying the law. State by Cooper v. French , 460 N.W.2d 2, 4 (Minn. 1990). We also view the evidence in a light most favorable to the nonmoving party. Fabio v. Bellomo , 504 N.W.2d 758, 761 (Minn. 1993).
To prevail on her negligence claim, appellant must show that respondents had a duty, that respondents breached that duty, that the breach proximately caused appellant's injuries, and that appellant suffered harm. Johnson v. State , 553 N.W.2d 40, 49 (Minn. 1996). For purposes of this opinion, we assume without deciding that respondents had a duty to clear the sidewalks of snow and slush.
2. Breach
A landowner is under an affirmative duty to exercise reasonable care in inspecting and maintaining its premises in a reasonably safe condition for invitees. Mattson v. St. Luke's Hosp. , 252 Minn. 230, 232, 89 N.W.2d 743, 745 (Minn. 1958). Unless there are extraordinary circumstances, it is the general rule that a business establishment or other inviter may, without violating its duty to exercise reasonable care for the safety of * * * invitees, await the end of a freezing rain or sleetstorm and a reasonable time thereafter before removing ice and snow from its outside entrance walks, platform, or steps. * * * The exercise of reasonable care * * * requires neither the impossible nor the impractical * * *.
Id. at 233, 89 N.W.2d at 745.
Appellant argues that respondents breached their duty by unreasonably delaying the clearing of snow and slush from the sidewalks. But a property owner may wait a reasonable amount of time after snow stops falling to begin clearing. See Niemann v. Northwestern College , 389 N.W.2d 260, (Minn.App. 1986) (defendant not liable where plaintiff fell on sidewalk not cleared after second day of a three-day winter storm), review denied (Minn. Aug. 27, 1986); Mattson , 252 Minn. at 235, 89 N.W.2d at 746 (defendant not liable for uncleared sidewalks where plaintiff fell during sleet and ice storm). Appellant claims that the snow stopped at 8:00 p.m. on November 27, 12 hours before her injury. But appellant ignores the undisputed National Climatic Data Center chronological precipitation report showing that the snow continued until 6 p.m. on November 28. Moreover, even if the snow had stopped on November 27, as appellant claims, the district court had undisputed evidence that on November 27 and November 28 respondent One Way Sweeping, Inc. spread two tons of salt and spent almost 85 man and equipment hours removing snow.
Appellant claims that the district court should have rejected the documents that showed these work hours because of purported discovery violations. This issue, raised for the first time on appeal, is not properly before us. See Thiele v. Stich , 425 N.W.2d 580, 582 (Minn. 1988).
Finally, appellant argues that because the weather was extraordinary, the sidewalk should have been either cleared or closed. See Mattson, 252 Minn. at 233, 89 N.W.2d at 745 (landowner may wait reasonable time to clear walks unless there are "extraordinary circumstances"); Peterson v. W.T. Rawleigh Co. , 274 Minn. 495, 498, 144 N.W.2d 555, 558 (1966) (landowner should have either made lot safe or denied access). Appellant bases this argument on an expert witness affidavit stating that the slush-covered sidewalk contained glazed brick tile, numerous holes, and a sudden slope. But the district court excluded the affidavit. Recovery has been barred where snow and ice are not covering other defects. See Mattson , 252 Minn. at 235, 89 N.W.2d at 746. Similarly, there is no evidence of any defect here. We conclude that respondents did not breach their duty of care.
3. Inadmissible Affidavit
Appellant argues that the district court's exclusion of the affidavit on sidewalk defects is reversible error because the credibility of witnesses is a jury question. But the district court did not rule on credibility; it ruled that because of its inadequate foundation, the evidence in the affidavit is inadmissible. See Minn.R.Civ.P. 56.05 (in a summary judgment motion "[s]upporting and opposing affidavits * * * shall set forth such facts as would be admissible in evidence * * *."); Minn.R.Evid. 401 ("`Relevant evidence' means evidence having any tendency to make the existence of any fact * * * less probable than it would be without the evidence."); Minn.R.Evid. 402 ("Evidence which is not relevant is not admissible.").
The slip and fall occurred on November 28, 1994, and the affidavit was dated June 2, 1998. Nothing in the affidavit indicates when the affiant inspected the premises. A four-week interim between a sidewalk accident and its inspection has been allowed for foundation purposes. Johnson v. City of St. Paul , 52 Minn. 364, 366, 54 N.W. 735, 735-36 (1893) ("It was competent to show the general condition of the walk within a reasonable time after the day of the accident * * *. [I]t is safe to assert that it had not materially changed within four weeks."). But here there is a four-year interim, with no indication of when the affiant inspected the sidewalk. The district court did not abuse its discretion in rejecting the affidavit for lack of admissible evidence. See State Farm Fire Cas. Co. v. Wicka , 461 N.W.2d 236, 241 (Minn.App. 1990) (providing that we will reverse the district court's determination of the admissibility of evidence in a summary judgment hearing only if there has been an abuse of discretion), aff'd 474 N.W.2d 324 (Minn. 1991).
Having assumed without deciding that respondents had a duty to clear the sidewalk, we conclude that appellant nonetheless failed to show a genuine issue of material fact as to respondents' breach of that duty.