A possessor of land is subject to liability for bodily harm caused to a trespasser by an artificial condition on the land if (1) the condition is one which the possessor has created or maintains and is, to his knowledge, likely to cause death or serious bodily harm to such trespasser, (2) is of such a nature that he has reason to believe that trespassers will not discover it, and (3) the possessor has failed to exercise reasonable care to warn such trespassers of the condition and the risk involved. Lishinski v. City of Duluth, 634 N.W.2d 456, 458-59 (Minn. App. 2001), review denied (Minn. Jan. 15, 2002).

Id. at 238. But while an interlocutory appeal is available to review an order denying summary judgment on the ground of governmental immunity, Lishinski v. City of Duluth, 634 N.W.2d 456, 461 (Minn. App. 2001), review denied (Minn. Jan. 15, 2002), an assumption-of-risk argument is not immediately appealable.

Appellants argue that there is a fact question as to whether a user of the L-screen could be expected to know that it was dangerous by observing that it had holes and had been repaired. But whether the condition is hidden depends on its visibility, not on whether the plaintiff saw the condition and actually understood it to be dangerous. Lishinski v. City of Duluth, 634 N.W.2d 456, 459 (Minn.App. 2001), review denied (Minn. Jan. 15, 2002); see also Lundstrom, 587 N.W.2d at 520 ("Whether a condition was hidden depends on the visibility of the condition, not on whether the injured party actually saw the danger.") "If a brief inspection would have revealed the condition, it is not concealed."

The city moved for summary judgment, arguing that it has recreational-use immunity under Minn. Stat. § 466.03, subd. 6e (2004); that Collins assumed the risk of injury; and that when Collins joined the league, he signed a waiver of any claims against the city arising from any injury he may suffer while participating as a player. Relying on Lishinski v. City of Duluth, 634 N.W.2d 456 (Minn.App. 2001), review denied (Minn. Jan. 15, 2002), the district court denied the city's motion, determining that there was a question of material fact regarding whether the bulge in the fence was likely to cause death or serious bodily injury. While the district court also rejected the city's two other grounds for summary judgment, the city appeals only from the district court's denial of summary judgment on the city's claim of recreational-use immunity.

Whether a government entity is protected by statutory immunity is a question of law. See, Johnson v. State, 553 N.W.2d 40, 45 (Minn. 1996); Lishinski v. City of Duluth, 634 N.W.2d 456, 458 (Minn.App. 2001), rev, denied (Minn., January 15, 2002). The protection provided by statutory immunity is to be narrowly construed.

In determining whether a condition is hidden, we look to "the visibility of the condition, not . . . whether the injured party actually saw the danger." Lishinski v. City of Duluth, 634 N.W.2d 456, 459 (Minn. App. 2001). If one can see the danger with a "brief inspection," then the danger is not hidden.

"The evidence is viewed in the light most favorable to the non-moving party." Lishinski v. City of Duluth, 634 N.W.2d 456, 458 (Minn. App. 2001), review denied (Minn. Jan. 15, 2002). "This de novo review includes our interpretation of the MGDPA."

On appeal from the denial of a motion for summary judgment, we review "whether there are any genuine issues of material fact and whether the district court erred in its application of the law." Lishinski v. City of Duluth, 634 N.W.2d 456, 458 (Minn. App. 2001), review denied (Minn. Jan. 15, 2002).

Id. at 851. Sandford relies on Lishinski v. City of Duluth, 634 N.W.2d 456 (Minn.App. 2001), review denied (Minn. Jan. 15, 2002), which concerned the hazards of in-line skating on an outdoor recreational path.

We conclude that respondent did not violate the adult-trespasser standard of care, even though the pond was an artificial condition, because there are no material facts suggesting that the artificial condition was hidden and thus respondent was entitled to recreational-use immunity. See Restatement (Second) of Torts § 335(a)(iii); Lishinski v. City of Duluth, 634 N.W.2d 456, 456-57 (Minn.App. 2001) (holding that summary judgment is not appropriate when material facts are present concerning allegedly hidden condition), review denied (Minn. Jan. 15, 2002).