Opinion
No. C9-98-1957.
Filed June 15, 1999.
Appeal from the District Court, Hennepin County, File No. 98212.
John M. Steele, (for appellant)
Eric J. Magnuson, Todd P. Zettler, Rider, Bennett, Egan Arundel, LLP, (for respondent)
Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Schumacher, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
The district court ordered summary judgment against Frances Williams' personal injury claims. Because Williams failed to establish a statutory violation and because any danger was open and obvious, we affirm summary judgment on both the negligence and negligence-per-se claims.
FACTS
Frances Williams fractured her nose when she walked into a glass partition in a Dayton Hudson Corporation store in 1991. The glass partition extended from the floor to the ceiling near an exit to a central mall and, according to Dayton's, had been installed as an anti-theft measure.
Williams sued Dayton's in 1994, and discovery extended into 1998. In February 1998, Dayton's moved for summary judgment on the ground that any danger posed by the green-tinted glass partition was open and obvious and, consequently, Dayton's had not breached a duty of care owed to Williams. Dayton's also requested summary judgment on Williams' negligence-per se claims because Williams had not shown that the glass partition violated the Minnesota Building Code or the Chapter 299G provisions for protection of buildings and occupants.
The district court ordered summary judgment on both the negligence and negligence-per se claims. Williams appeals summary judgment on her negligence claim and that part of her negligence-per se claim that alleged a violation of Minn. Stat. § 299G.11 (1996).
DECISION
A court may grant a motion for summary judgment when the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show there is no genuine issue of material fact and that either party is entitled to summary judgment as a matter of law. Fabio v. Bellomo , 504 N.W.2d 758, 761 (Minn. 1993) (citing Minn.R.Civ.P. 56.03). We view the evidence in the light most favorable to the nonmoving party, but a party may not create an issue of material fact through its own inconsistent submissions. Banbury v. Omnitrition Int'l, Inc. , 533 N.W.2d 876, 881 (Minn.App. 1995).
I
It is well settled that breach of a statute is negligence per se only if the person harmed is within the statute's intended protection and the harm suffered is the type the statute was intended to prevent. Pacific Indem. Co. v. Thompson-Yeager, Inc. , 260 N.W.2d 548, 558 (Minn. 1977). The district court held Minn. Stat. § 299G.11 did not apply to the glass partition and thus it did not require the partition be marked with side lights.
Williams' claim of statutory violation rests on a provision regulating the doors and sidelights of a public building:
If doors or side lights of a public building, whether privately or publicly owned, are constructed with clear glass, markings shall be placed on such clear glass or the clear glass shall be manufactured with markings. Sidelights are defined as the clear glass panels not less than 15 inches wide immediately adjacent to the door.
Minn. Stat. § 299G.11. Statutory interpretation is a question of law, which this court reviews de novo. State by Beaulieu v. RSJ, Inc ., 552 N.W.2d 695, 701 (Minn. 1996).
The glass partition, affixed to the floor and the ceiling, could not be considered a door. Thus, to come within the statute, the partition must qualify as a sidelight. But for purposes of section 299G.11, a sidelight is defined as a clear glass panel immediately adjacent to a door. "Immediately adjacent" means within 12 inches of a door in its closed position. Minn. Stat. § 299G.13, subd. 10 (1996). It is undisputed that the glass partition is not within 12 inches of a door in its closed position. Furthermore, the statute in context suggests that it is designed to prevent people from walking into clear glass adjacent to external doors, not internal partitions. See id. The district court did not err in granting summary judgment on Williams' negligence-per se claim; we next analyze the general negligence claim.
II
Landowners have a duty to use reasonable care to secure the safety of persons invited on their premises. Sutherland v. Barton , 570 N.W.2d 1, 7 (Minn. 1997). Reciprocally, persons invited on premises have a duty to exercise reasonable care and "observe that which is obvious to the ordinarily prudent person." Carlson v. Rand , 275 Minn. 272, 278, 146 N.W.2d 190, 194 (1966) (quoting Tonne v. Becker Grain Lumber Co. , 273 Minn. 73, 73, 139 N.W.2d 797, 797 (1966)). Landowners are not liable for harm caused by obvious dangers "unless the landowner should anticipate the harm despite its obvious nature." Sutherland , 570 N.W.2d at 7. When a condition is obvious, a person injured due to the condition is barred from bringing a negligence claim as a matter of law absent a showing that the landowner should have anticipated harm from the condition. See Dukek v. Farwell Ozmun Kirk Co. , 248 Minn. 374, 80 N.W.2d 53 (1956).
Based on the record, the district court concluded that the green-tinted glass partition was an open and obvious danger. On appeal Williams asserts that a factual issue exists on whether the glass panel was tinted green. The photographs supplied by Williams indicate that the partition was tinted. Williams conceded in her deposition that the glass partition had "a light green tint to it." Later, in an affidavit submitted in opposition to summary judgment, Williams stated that she did not "recall seeing any tint of color in the glass." But a party's contradiction of earlier deposition testimony does not create an issue of fact. Banbury , 533 N.W.2d at 881.
In analogous cases, the Minnesota Supreme Court has held as a matter of law that a claim for negligence cannot proceed because the premises hazards were open and obvious and the claimants had not been watching where they were going. See Carlson , 275 Minn. at 279, 146 N.W.2d at 194 (person has not exercised degree of care required of an ordinarily prudent person if the person fails to see a condition in plain sight absent "poor illumination or noncontrasting colors"); Johnson v. Brand Stores, Inc. , 241 Minn. 388, 393, 63 N.W.2d 370, 373 (1954) (same); see also Bisher v. Homart Dev. Co. , 328 N.W.2d 731, 734 (Minn. 1983) (brick planter in mall walkway was "in plain view," obvious, and thus mall owner was not negligent). We are unable to distinguish the facts and holdings in the analogous cases from the circumstances confronting Williams.
Whether a danger is open and obvious depends on an objective determination of whether a person would reasonably have seen the danger, not on a subjective consideration of whether the person actually perceived and appreciated the danger. Munoz v. Applebaum's Food Mkt., Inc. , 293 Minn. 433, 434, 196 N.W.2d 921, 922 (1972). The district court did not err in granting summary judgment on Williams' negligence claim.