Henry v. State

CRIPPEN, Judge,

dissenting.

I respectfully dissent. The trial court’s summary judgment improperly enlarges the limited immunity provided by Minnesota Statutes § 3.736, subd. 3(h) (1986).

Although the State enjoys statutory immunity for the construction, operation, and maintenance of outdoor recreation systems, the State remains liable for bodily injury caused by “the State’s negligence” in “maintaining dangerous artificial conditions without adequate warnings.” Green-Glo Turf Farms v. State, 347 N.W.2d 491, 494 (Minn.1984). In spite of evidence in this case that leaves genuine issues of whether the State negligently maintained dangerous conditions and whether these were artificial conditions, the trial court has determined these questions as a matter of law. The “blunt” instrument of summary judgment is used here to improperly eliminate a fair trial on the issues. See Donnay v. Boulware, 275 Minn. 37, 45, 144 N.W.2d 711, 716 (1966). Making matters worse, the disposition of this case serves to announce an erroneous rule of law, the proposition that negligence in maintaining dangerous conditions is provable only by evidence that the State has actual knowledge of the specific danger.

1. Artificial conditions.

The trial court has decided as a matter of law that the construction, operation, and maintenance of the outdoor recreation system at Helmer Myre State Park involves no artificial conditions. Given this decision, it is difficult to imagine State outdoor recreation systems that would fall outside the limited immunity declared in Minn.Stat. § 3.736, subd. 3(h) (1986). More to the point here, the decision improperly dis*613regards important evidence of record that the outdoor developments at Helmer Myre State Park materially changed the natural environment. In creating this campground, the State laid out roads, developed graveled parking areas for campsites, and constructed concrete fire rings. Buildings were constructed for services to campers, and these buildings are serviced by buried utility improvements. Testimony from both appellant’s and respondent’s expert witnesses established that the development of roads and other improvements in the park caused soil compaction that deprived the trees of oxygen and other nutrients, and made them susceptible to disease and decay. In this instance, injuries occurred because of disease and decay of a tree in the park. Construed in the light most favorable to appellants, the evidence here left a genuine issue of material fact regarding the existence of an artificial condition.

Numerous cases have been cited to suggest that Minnesota has adopted an expansive view on natural conditions, a view that necessarily encompasses the improvements made at this State park. See Davies v. Land O’Lakes Racing Association, 244 Minn. 248, 69 N.W.2d 642 (1955). See also Cassel v. Price, 396 So.2d 258 (Fla.1981); Ostroski v. Mt. Prospect Shop-Rite Inc., 94 N.J.Super. 374, 228 A.2d 545 (1967). While many outdoor improvements merely duplicate natural developments, this notion does not permit disregard for evidence on road construction, graveled parking areas, concrete improvements, and adjacent buildings, or the extensive soil compaction that may be involved in some campground improvements. Moreover, the cases just cited deal in each instance with injuries resulting in part from play activity of children, which was not a factor in the immediate case. See Slinker v. Wallner, 258 Minn. 243, 249, 103 N.W.2d 377, 382 (1960) (quoting Pros-ser, Trespassing Children, 47 Calif.L.Rev. 427, 451 (1959), regarding the “impossible burden” in making one’s land “completely child-proof”)).

There is a fact question in this case whether the State created an artificial condition at Henry Myre State Park. That question should be resolved by a jury, not by a ruling on the law.

2. Negligence.

The trial court also concluded there was no genuine issue on the allegation that the State negligently constructed or maintained dangerous conditions. Here also, in my opinion, there is a genuine issue of material fact.

The manager of Helmer Myre State Park was aware that trees with V-joints have a high incidence of breakage, that when they break they fall in a predictable direction, and that in this case a branch extended out from a V-joint toward the campsite so that if it did break it would fall in the area used by campers. The manager also knew that construction of roads and other structures causes soil compaction that deprives trees of oxygen and other nutrients, thus compromising the health of the trees. This is sufficient evidence to raise a fact question of whether the State was negligent in maintaining a dangerous condition.

3. Actual knowledge.

It is evident here that the State actually knew (1) the danger of V-joints, particularly if the tree is diseased, (2) the particular hazard a certain V-joint created for the campsite in question, and (3) the risk of disease connected with the kinds of improvements made in this park. Even though the State did not have actual knowledge of the diseased condition of this particular V-joint, there is an appropriate jury question of whether the State’s actual knowledge shows their negligence. It is even more definite that there is a jury question on the State’s negligence in terms of the knowledge the State should have had. There is ample evidence here to establish a jury question whether the State should have appreciated that this V-joint represented a dangerous condition if diseased, and that this tree was specifically subject to the risk of disease and decay.

The trial court concluded the State is not chargeable with knowledge it should have had. The majority proposes to affirm this decision. This conclusion constitutes an erroneous declaration of law.

*614It is true that “the owner should not be required to patrol the area or make it safe for those who enter upon it.” Green-Glo, 347 N.W.2d at 491. Examining this language, the trial court concluded the State has “no duty of inspection.” There is no reason to translate a concept on the duty to patrol to one on the duty to exercise reasonable care in observation and investigation of the conditions of the premises. Moreover, this construction of words used by the supreme court in Green-Glo is inconsistent with the rule of law announced in that case.

According to the supreme court, the State is not immune from liability in connection with bodily injuries caused by the State’s “negligence” in maintaining “dangerous” conditions. The supreme court traces its rule of law to provisions of the Restatement of Torts on the liability of a trespasser. See Restatement (Second) of Torts § 335 (1965). The Restatement speaks of a party’s maintenance of conditions that “to his knowledge” is likely to be dangerous. There is no reason to read into this language a standard on actual knowledge. In fact, it was the intent of the drafters of section 335 to make constructive knowledge the appropriate standard. In their comment accompanying the section, the authors state:

The rule stated in this Section applies only where the artificial condition is one which the possessor has knowingly created or maintained and which he realizes or should realize will involve a risk of death or serious bodily harm.

Restatement (Second) of Torts § 335 comment d (1965) (emphasis added). We should follow the standard of constructive knowledge indicated by the Restatement, the source of law on the subject that has been honored by the Minnesota Supreme Court. Application of the appropriate rule of law makes it even more evident that there is a jury question on negligence in this case.