Mohn v. Schussler, et al.

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1996).

  STATE OF MINNESOTA

  IN COURT OF APPEALS

  CX-96-1364

  Virginia Mohn,

Appellant,

vs.

Don Schussler, et al.,

Respondents.

  Filed December 24, 1996

  Affirmed

  Short, Judge

Dakota County District Court

File No. C5959614

John F. Markert, 4018 West 65th Street, Edina, MN 55435 (for appellant)

William L. Moran, Murnane, Conlin, White & Brandt, 1800 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101 (for respondents)

Considered and decided by Short, Presiding Judge, Randall, Judge, and Davies, Judge.

  UNPUBLISHED OPINION

 SHORT, Judge

Virginia Mohn tripped on the single-step rise from the parking lot to the front entrance of a newly opened Subway sandwich shop in Farmington, Minnesota. After suffering a fractured left arm, Mohn sued the owners of D.K.J. Sub's Inc. (landowners) for negligent maintenance of the step leading to the shop's entrance. The landowners moved for summary judgment, which the trial court granted. On appeal, Mohn argues the trial court erred in its application of the law, and summary judgment is inappropriate because a fact issue exists as to whether the step on which Mohn tripped was an open and obvious hazard. We affirm.

  DECISION

  On appeal from summary judgment, we determine whether there are any genuine issues of material fact and whether the trial court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). While we view the evidence in the light most favorable to the party opposing the motion, the nonmovant must produce specific facts that create an issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552 (1986). A prima facie case of negligence requires evidence of: (1) a duty owed by the defendant; (2) a breach of that duty; (3) causation; and (4) injury. Hudson v. Snyder Body, 326 N.W.2d 149, 157 (Minn. 1982). Whether a duty exists is a question of law, which we review de novo. Larson v. Larson, 373 N.W.2d 287, 289 (Minn. 1985) (existence of duty presents legal issue); Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984) (de novo review).

I.

A landowner owes a general duty to invitees to act reasonably in inspecting and maintaining the premises in a reasonably safe condition for invitees. Mattson v. St. Luke's Hosp., 252 Minn. 230, 233-34, 89 N.W.2d 743, 745-46 (1958). However, a landowner owes no duty to invitees where the danger on the property is open and obvious, unless the landowner should anticipate harm from the dangerous condition. Baber v. Dill, 531 N.W.2d 493, 495-96 (Minn. 1995) (quoting Peterson v. W.T. Rawleigh Co., 274 Minn. 495, 497, 144 N.W.2d 555, 557 (1966)); see, e.g., Bisher v. Homart Dev., 328 N.W.2d 731, 734 (Minn. 1983) (holding defendants owed no duty to warn patrons of large, obvious planter); Sperr v. Ramsey County, 429 N.W.2d 315, 318 (Minn. App. 1988) (noting county could not reasonably foresee injuries resulting from obvious risk of harm from overhanging tree branches), review denied (Minn. Nov. 23, 1988); Lawrence v. Hollerich, 394 N.W.2d 853, 856 (Minn. App. 1986) (holding landowner owed no duty to warn of steepness of slope because it was obvious), review denied (Minn. Dec. 17, 1986). Whether a danger is open and obvious depends on whether the invitee could have seen the danger, not whether he or she actually appreciated the danger. Munoz v. Applebaum's Food Mkt., 293 Minn. 433, 434, 196 N.W.2d 921, 922 (1972).

Mohn argues the step was not an open and obvious hazard because ordinary persons could not readily observe the height of the step, and, therefore, the landowners were obligated to warn Mohn of the step. However, the record demonstrates: (1) the height of the step was approximately eight to ten inches; (2) when Mohn tripped and fell, the weather was sunny and cold and there was no accumulation of snow, ice, or rain on the ground; (3) the step was in plain view; (4) in the two days the shop had been open prior to Mohn's accident, no other customers had complained of the step; and (5) there was no evidence that the step was more dangerous than it appeared. Given these facts, the single-step rise was obvious, and the landowners could not have foreseen that reasonable people would fail to lift their feet high enough to negotiate the step. Thus, the landowners were not negligent as a matter of law, and the trial court properly granted summary judgment against Mohn.

II.

Mohn also argues that notwithstanding the existence of the step as an open and obvious danger, the Minnesota Uniform Building Code imposes a separate duty of care on respondents. See Uniform Building Code SSSS 1006.1 & 1006.3 (1994) (requiring every stairway with two or more steps to have a rise measuring no more than seven inches). We disagree. In certain circumstances, a safety statute may impose a standard of care as a substitute for the common-law standard of reasonable prudence. LaValle v. Kaupp, 240 Minn. 360, 363, 61 N.W.2d 228, 230 (1953). However, the record shows: (1) two days prior to Mohn's fall, the city of Farmington issued a certificate of occupancy for the Subway shop, which certified the shop's compliance with the building code and other applicable ordinances; (2) the step on which Mohn tripped was the only step leading to the shop's entrance; (3) by its express terms, the building code applies only to stairways having two or more risers; and (4) Mohn introduced no evidence that customs or industry standards impose a specific height limit for a one-step riser. Under these circumstances, the code does not impose on the landowners a separate duty relating to the single step. Mohn's argument is without merit, and the trial court properly granted judgment in favor of the landowners.

  Affirmed.