This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0723
Simon McCullough,
Respondent,
vs.
City of Red Wing,
Appellant.
Filed December 27, 2016
Affirmed
Jesson, Judge
Goodhue County District Court
File No. 25-CV-14-2347
Paul Peterson, Jason L. DePauw, Harper & Peterson, P.L.L.C., Woodbury, Minnesota (for
respondent)
Patrick L. Arneson, League of Minnesota Cities, St. Paul, Minnesota (for appellant)
Considered and decided by Hooten, Presiding Judge; Cleary, Chief Judge; and
Jesson, Judge.
UNPUBLISHED OPINION
JESSON, Judge
Appellant City of Red Wing challenges the district court’s denial of its motion for
summary judgment after the district court concluded that the city is not entitled to assert
recreational-use immunity as a matter of law in an action brought by respondent Simon
McCullough, who sustained injuries when a section of a concrete wall fell on him as he
swung in his hammock. Because there are genuine issues of material fact regarding
whether recreational-use immunity applies, we affirm.
FACTS
A hundred-year-old park sits in the middle of Red Wing. In the early 1900s, a
limestone retaining wall with a cast-concrete balustrade was constructed in the park. The
balustrade consists of a concrete lower rail, concrete balusters (or spindles), and a concrete
upper rail. The balusters can weigh up to 100 pounds, and the railings weigh about 300
pounds. Each baluster is attached to the railings by a four-inch pin made from rebar with
mortar surrounding it. Some portions of the balustrade are adjacent to limestone pillars
that rise above the rest of limestone wall. Other than to the balusters or an adjacent upper
rail, the upper rail does not attach to any other part of the balustrade or limestone wall.
Although the city repaired the balustrade over the years, the wall’s design has not
changed. The wall is often used as a decorative backdrop for photographs. People sit on
and lean against the balustrade. Depending on the section of the wall, there is a seven-to-
ten-foot drop from the top of the balustrade to the grass below. People have picnics and
lounge directly beneath the wall near its base.
The wall remained intact until its deteriorating condition became apparent in the
mid-2000s. Sections of the balustrade became loose. A section collapsed and was repaired.
The city received two complaints and a vendor report about the balustrade, noting concerns
about the wall’s condition during this period of time. Despite these concerns, there are no
reports of injury from the balustrade until 2011. Indeed, a month before the injury that
forms the basis of this appeal, the city repaired and replaced balusters along the wall.
2
On October 9, 2011, Simon McCullough went to the park to lounge in his hammock.
He attached each end of his hammock to different balusters on the wall. He sat in the
hammock for 15-20 minutes before his friends arrived to join him. One friend slung his
hammock to the balustrade wall as well. While McCullough’s and his friend’s hammocks
were not attached to the same baluster in that section of the wall, their hammocks were
secured to one of the three balusters that supported the same section of upper rail.
McCullough weighed approximately 145 pounds, and his friend weighed 150 pounds. As
soon as the friend climbed into his own hammock, three balusters and the railing they
supported fell off the wall. McCullough suffered severe injuries, including a broken neck,
a nearly severed ear, and a traumatic brain injury.
McCullough sued the City of Red Wing in negligence for the injuries he sustained.
He claimed that the city failed to properly inspect and maintain the balustrade. The city
moved for summary judgment, claiming that it was insulated from McCullough’s claims
by recreational-use immunity. See Minn. Stat. § 466.03, subd. 6e (2014).1
The district court concluded that genuine issues of fact exist regarding the
availability of recreational-use immunity and denied the city’s motion. Generally, an order
denying summary judgment is not appealable. McGowan v. Our Savior’s Lutheran
1
The city also claimed that the statute of repose barred a claim for any injury which may
have resulted from the wall’s negligent construction or design. See Minn. Stat. § 541.051,
subd. 1(a) (2014) (barring a claim arising out of a defective improvement to real property
if not brought within two years of discovery of filing or within ten years after substantial
completion of the construction). The district court granted the city’s motion on the statute-
of-repose defense, limiting McCullough’s claims to those arising out of negligent
maintenance.
3
Church, 527 N.W.2d 830, 832 (Minn. 1995). But the collateral-order doctrine permits
interlocutory review because the district court’s order made a final determination that the
city is required to defend against McCullough’s claims, and such an order is effectively
unreviewable in a later appeal. Kastner v. Star Trials Ass’n, 646 N.W.2d 235, 239-40
(Minn. 2002); see Johnson v. Jones, 515 U.S. 304, 314, 115 S. Ct. 2151, 2157 (1995)
(explaining that immunity issues are distinct from the merits of the action). This appeal
follows.
DECISION
The doctrine of sovereign immunity historically prevented lawsuits against the state
and its municipalities without their consent. Nusbaum v. Blue Earth Cty., 422 N.W.2d 713,
717 (Minn. 1988). Following a national trend to abolish the doctrine, Minnesota abolished
sovereign immunity with respect to both state and municipal tort liability. See Nieting v.
Blondell, 306 Minn. 122, 132, 235 N.W.2d 597, 603 (1975); Spanel v. Mounds View Sch.
Dist. No. 621, 264 Minn. 279, 281, 118 N.W.2d 795, 796 (1962). In its place, the doctrine
has been replaced with statutory immunity. See Minnesota Municipal Tort Liability Act,
Minn. Stat. §§ 466.01-.15 (2014).
While municipalities have waived sovereign immunity regarding most tort claims,
an exception exists relating to parks and recreation areas. Minn. Stat. § 466.03, subd. 6e
(insulating municipalities from lawsuits based on the maintenance of parks if a claim arises
from a loss incurred by a park user). But there is an exception to this exception: a
municipality owes the same duty of care to users of a park that a private landowner owes
to trespassers. Id. Under this “trespasser exception,” a landowner is liable when (1) the
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landowner creates or maintains an artificial condition, (2) the landowner knows the
condition is likely to cause death or serious bodily harm, (3) the landowner has reason to
believe that the danger is concealed or hidden from the trespasser, and (4) the landowner
fails to warn of the condition and risk. Krieger v. City of St. Paul, 762 N.W.2d 274, 276
(Minn. App. 2009) (citing Restatement (Second) of Torts § 335 (1965)). A plaintiff bears
the burden of establishing all elements in order to defeat an immunity claim. Zacharias v.
Minn. Dep’t of Nat. Res., 506 N.W.2d 313, 320 (Minn. App. 1993), review denied (Minn.
Nov. 16, 1993). Therefore, the city is entitled to summary judgment if it can demonstrate
that McCullough cannot prove any one element of the trespasser exception.
The district court denied summary judgment on immunity because it determined
that there are genuine issues of fact with respect to two elements of the trespasser
exception: whether the city had knowledge of the dangerous condition and whether the
condition was concealed. On appeal from a denial of summary judgment, in determining
whether there are any genuine issues of material fact, we view the evidence in the light
most favorable to the non-moving party and resolve all doubts against the moving party.
Rochester City Lines, Co. v. City of Rochester, 868 N.W.2d 655, 661 (Minn. 2015), cert.
denied, 136 S. Ct. 849 (2016). “Immunity is a legal question reviewed de novo.” Anderson
v. Anoka Hennepin Indep. Sch. Dist. 11, 678 N.W.2d 651, 655 (Minn. 2004).
In our de novo review, we first address whether there is a genuine issue of material
fact regarding the city’s actual knowledge of the dangerous condition. We then consider
whether that condition was likely to cause serious bodily harm. Finally, we consider
whether the evidence demonstrates that the city had reason to believe that the danger was
5
concealed from McCullough. Because there is sufficient evidence in the record that
permits reasonable persons to draw different conclusions on the knowledge and
concealment requirements of the trespasser exception, we affirm.2
I. There is a genuine issue of material fact regarding the city’s actual
knowledge that the balustrade was likely to cause serious bodily harm.
The city alleges that the trespasser exception does not apply because there is no
evidence to show that the city had actual knowledge about the condition and, even if the
city did have knowledge, it did not know it was seriously likely to cause injury.3 We
disagree. While determining whether a party has actual knowledge is often a case-specific
inquiry, our caselaw suggests that a lack of complaints or reported injuries may
demonstrate a lack of knowledge under the trespasser exception. Steinke v. City of
Andover, 525 N.W.2d 173, 177 (Minn. 1994), Prokop v. Indep. Sch. Dist. No. 625, 754
N.W.2d 709, 715 (Minn. App. 2008). The converse is true as well: a history of complaints
is evidence of actual knowledge.
2
We determine only that the city is not entitled to recreational-use immunity as a matter of
law. As the district court pointed out in its careful opinion, the city may be eligible for
immunity after proving the facts supporting each of the elements of the statute and
disproving those that would support the trespasser exception.
3
As a threshold matter, the parties dispute whether a landowner under the trespasser
exception must have actual or constructive knowledge of the condition. The city urges this
court to apply the actual-knowledge standard, which this court has utilized in recent years.
See Krieger, 762 N.W.2d at 278 (following most recent precedent that actual knowledge is
required); Prokop v. Indep. Sch. Dist. No. 625, 754 N.W.2d 709, 715 (Minn. App. 2008)
(same). In contrast, McCullough argues that the trespasser exception requires only
constructive knowledge. See Noland v. Soo Line R.R., 474 N.W.2d 4, 6 (Minn. App. 1991),
review denied (Minn. Sept. 13, 1991). Because we conclude that there is a genuine issue
of fact regarding the city’s knowledge under the stricter actual-knowledge standard, we
need not resolve this dispute.
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Here, the city received two complaints and a vendor report about the balustrade
within ten years of McCullough’s accident. While the complaints were not about the
specific section of the balustrade which caused McCullough’s injury, taken together, the
evidence is enough to establish a factual dispute over whether the city knew that the
balustrade itself was susceptible to becoming loose or falling. In April 2005, the city
received a complaint which said: “[U]pright railing part—middle right half a pillar almost
fell, it could kill someone if it fell on them. It almost fell over when I was leaning on the
railing.” In June 2010, the city received another complaint about the wall: “Balustrade
wall has a loose section in the middle.” There is no evidence that either specific complaint
was resolved at the time. More critically, a vendor was hired by the city in February 2007
to inspect various buildings and to determine what repairs were necessary. In its report to
the city, the vendor determined that the spacing between the balusters did not meet code
requirements; pillars and railings were also missing. The vendor also observed that “joints
are disintegrating while the system is held up by a metal cable.” The vendor concluded
that the balustrade wall needed to be removed and rebuilt. The recommendation referred
to the entire structure, not specific sections of the balustrade.
The city argues that these facts do not demonstrate actual knowledge because of the
results of its inspection of the entire balustrade one month before the collapse. In
September 2011, one month before McCullough was injured, the city inspected the
balustrade wall by hand and repaired or replaced all components that were loose or missing.
As a result of this inspection, there were no loose or missing components in the section of
balustrade that collapsed on October 9, 2011. Indeed, a report from city employees found
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that section of baluster to be “rock solid.” But as the district court correctly pointed out,
while this is evidence (perhaps even strong evidence) that the city lacked actual knowledge
that the balustrade was dangerous, it is not the only evidence on this critical point. Given
the previous complaints and its own vendor’s recommendation that the entire balustrade
be replaced, there is a factual dispute regarding whether the city had actual knowledge that
the balustrade was in a dangerous condition.
Our conclusion is consistent with caselaw, which examines whether a city received
previous complaints or accident reports which would demonstrate actual knowledge. In
Johnson v. State, we determined that the state had knowledge of a condition (albeit not a
dangerous condition) because the state knew that sidewalk joints were prone to buckling.
478 N.W.2d 769, 771 (Minn. App. 1991), review denied (Minn. Feb. 27, 1992). And, while
there was a usual repair for buckled sidewalk joints, the state decided against making a
repair because the condition was not yet severe enough to require maintenance. Id.
In contrast, we held that the state lacked knowledge that a tree was likely to cause
injury or death where frequent inspections of the tree found the tree to appear healthy and
there were no reports of any danger or a problem with limbs. Henry v. State, 406 N.W.2d
608, 611-12 (Minn. App. 1987), review denied (Minn. Aug. 12, 1987). The city argues
that Henry dictates the outcome here because, as in Henry, an inspection by employees
shortly before the accident did not reveal anything unusual or dangerous. We disagree.
The two previous complaints and the 2007 vendor report that recommended replacement
of the balustrade wall are additional evidence of knowledge which was lacking in Henry.
8
Having recognized disputed, material facts regarding the city’s actual knowledge of
the wall’s condition, we now turn to whether there is evidence that the condition was likely
to cause serious bodily harm or death. “Any artificial condition could be likely to cause
death or serious bodily harm under the right circumstances.” Johnson, 478 N.W.2d at 773.
Recognizing this, we look to whether the dangerous condition is likely to cause serious
bodily harm, not whether serious bodily harm might occur. Id. Conditions likely to cause
death or serious bodily injury typically have inherently dangerous propensities, like a high-
voltage electrical wire. See Restatement (Second) of Torts § 335, Illustration.
The city contends that the balustrade, unlike a high-voltage wire, was not inherently
dangerous at the time of the accident. The only way a wall could be inherently dangerous
in a way that would meet the trespasser exception, according to the city, would be if the
wall was prone to spontaneous collapse. Here, it took the unanticipated weight of two
people simultaneously hanging from hammocks to cause the collapse, the city notes.
Accordingly, the city asserts that a large wall is similar to a raised sidewalk joint, which
this court determined was not “inherently dangerous.” Johnson, 478 N.W.2d at 773.
We disagree. While a 100-year-old wall with a history of missing or loose
balustrades and railings is not as inherently dangerous as a high-voltage wire, it is more
dangerous than a raised sidewalk. This is particularly the case where each of the
balustrades can weigh up to 100 pounds and the railing up to 300 pounds. This wall is
similar to a staircase, which we found may be an inherently dangerous condition. See
Unzen v. City of Duluth, 683 N.W.2d 875, 877-78 (Minn. App. 2004) (affirming denial of
9
summary judgment on city’s recreational-use immunity defense following plaintiff’s fall
down a flight of stairs), review denied (Minn. Oct. 27, 2004).
Resolving the inferences in McCullough’s favor, we determine that there is
sufficient evidence to establish a jury question regarding whether the city had actual
knowledge of a dangerous condition which was likely to cause death or serious bodily
harm.
II. There is a genuine issue of material fact regarding whether the condition
of the balustrade wall was concealed.
Under the trespasser exception, recreational-use immunity is not available to a
municipality where a dangerous condition is hidden, rather than open and obvious. Unzen,
683 N.W.2d at 880. And a condition is not concealed if a brief inspection would reveal the
condition. Johnson, 478 N.W.2d at 773. Whether a condition is concealed depends on
whether the condition itself was visible, not whether McCullough actually saw and
appreciated the danger. Steinke, 525 N.W.2d at 177.
The city contends that the condition of the balustrade wall was not hidden. Both
McCullough’s expert and the vendor report opined that the balustrade required lateral
support to be structurally sound. That lack of lateral support, the city argues, was visually
obvious. Based upon McCullough’s testimony and pictures of the balustrade, the upper
railing was not attached to the limestone piers. The same was true for the balusters. The
city asserts that McCullough should have seen this gap when he attached his hammock to
the balustrade. As a result, the city urges that it had no duty to protect trespassers—or
McCullough—from the condition.
10
We disagree. The balusters are attached to the limestone wall below and the railing
above with a rebar pin and mortar. McCullough’s expert opined that the mortar and pins
were prone to rust and corrosion, which a brief inspection would not have revealed absent
removing the individual balusters. Without adequate lateral support because of the
disconnect with the limestone piers, the weight-bearing capacity was directed to the vertical
pins. As a result, while McCullough may have been able to see some evidence of the lack
of lateral support, the pins were not visible because they were inserted in the center of the
balusters. Because he could not see the extent of the vertical reinforcement through the
mortar and pins, McCullough contends that the condition was hidden. This disagreement,
as the district court concluded, creates a genuine issue of fact on whether the dangerous
condition was concealed.
The city relies on our decision in Martinez v. Minn. Zoological Gardens, 526
N.W.2d 416, 418-19 (Minn. App. 1995), review denied (Minn. Mar. 29, 1995), to support
its argument that the condition of the balustrade was not hidden. In Martinez, we
determined that floor railings, which were leaning against a wall, were not a concealed
condition because a brief inspection would have revealed the fact that the railings were not
fixed or secured. Id. But here, the balusters were fixed and secured to the lower and upper
railings. While McCullough could see that the upper railing was not attached to the
limestone piers, whether a brief inspection would have revealed that the balustrade could
hold the combined weight with his friend is genuinely disputed because the condition of
the mortar and pins was concealed. This situation is more akin to our decision in Unzen.
683 N.W.2d at 880. In that case, the plaintiff tripped on a metal nosing on a set of stairs.
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Id. at 877. We concluded that even though the metal nosing on a staircase was visible, the
actual dangerous condition—that the nosing was raised above the rubber floor tread on
each step—was not. Id. at 880; Prokop, 754 N.W.2d at 715-16 (clarifying Unzen by
reiterating that the question is whether the dangerous condition was visible, not whether
the nosing itself was visible).
Viewing the evidence in the light most favorable to McCullough, the record contains
evidence which would permit reasonable persons to differ on whether the dangerous
condition was visible.
Affirmed.
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