author: G. BARRY ANDERSON, Judge.

text:
    Lorrie L. RINN, Appellant, v. MINNESOTA STATE AGRICULTURAL SOCIETY d/b/a the Minnesota State Fair, Board of Regents of the University of Minnesota, Respondents.
    No. C2-99-1972.
    Court of Appeals of Minnesota.
    June 6, 2000.

      David W. Vanderhayden, Vanderhayden and Ruffalo, P.A., Rochester, for appellant.
    Pierre N. Regnier, Joseph E. Flynn, Jardine, Logan & O’Brien, St. Paul, for respondent Minnesota State Fair.
    Mark B. Rotenberg, General Counsel, Thomas James Schumacher, Associate General Counsel University of Minnesota, Minneapolis, for respondent University of Minnesota.
    Considered and decided by AMUNDSON, Presiding Judge, G. BARRY ANDERSON, Judge, and FOLEY, Judge.

         Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

G. BARRY ANDERSON, Judge.

Appellant Lome L. Rinn slipped, fell, and fractured her elbow while attending a 4-H horse show at the Minnesota State Fair. She challenges the district court’s grant of summary judgment to respondents Minnesota State Agricultural Society, d.b.a. Minnesota State Fair (State Fair) and the Board of Regents of the University of Minnesota (U of M). We find that the district court erred by determining that the puddle on the coliseum stairs that caused appellant’s fall was open and obvious as a matter of law. But, because the passage of 30 minutes did not give respondents constructive notice of the puddle, we hold that the district court properly granted summary judgment and affirm.

FACTS

4-H is a national, community-based youth program administered in Minnesota by respondent U of M. Since 1970, 4-H has sponsored an annual state-wide horse show for competing 4-H youth at the Minnesota State Fair. Respondent State Fair is a public corporation as defined in Minn.Stat. § 37.01 (1998). The horse show, held in a coliseum on the fairgrounds, features over 80 events. Appellant is the mother of two children from Winona County who participated in the five-day 4-H horse show in 1996.

At approximately 10:00 p.m. on September 16, 1996, appellant and her daughter ascended the steps of the coliseum to view the show from the middle of section 16. Stairs run along both sides of the section. Appellant and her daughter watched the show for approximately half an hour and at about 10:30, they descended the same set of stairs to cheer for a competitor they knew. Appellant, by deposition testimony, explained what happened:

Well, when I was ready to take my next step I saw [a puddle of liquid]. I mean, you didn’t see it from a distance; but I watch every step I take, I walk very cautiously, carefully; and when I saw it there, I looked back and told [my daughter], I said “Be careful, there is something there.” Your choice was either to walk through it or climb over seats to get over it. So I just took one step and I went down * * *.

Appellant testified that a liquid covered the entire step, she did not know what it was, and it was not there when she ascended the stairs half an hour earlier. No evidence suggested that others had walked through the puddle. Appellant fractured her elbow in the fall.

4-H volunteers and staff administered the show events. According to the licensing agreement between U of M and State Fair, State Fair, and not the 4-H staff and volunteers, provided janitorial services in the coliseum. State Fair completely cleaned, swept, and inspected the coliseum each night after the show, but did not disrupt the events by cleaning during the day. State Fair provided staff to assist 4-H workers during the show. If cleaning-problems were brought to the attention of the State Fair staff, they were resolved on an “as needed” basis. There is no evidence that any 4-H or State Fair staff were notified or had knowledge of, or created, the puddle that caused appellant’s fall.

The district court concluded that the puddle was open and obvious and that appellant saw and recognized the condition as dangerous. The district court further decided that appellant failed to present any genuine issue of material fact relating to how long the liquid had been on the steps, which was essential to establishing that respondents owed a duty to appellant under the constructive notice doctrine. These circumstances, the district court held, entitled respondents to judgment as a matter of law.

Appellant argues that the district court erred by determining that the puddle was an open and obvious dangerous condition as a matter of law and by determining that there were no genuine issues of material fact as to whether respondents had constructive notice of the puddle.

ISSUES

I. Is the puddle an open and obvious dangerous condition as a matter of law?

II. Is there a genuine issue of material fact as to whether respondents had constructive notice of the puddle that caused appellant’s fall?

ANALYSIS

On appeal from summary judgment, we determine whether there are any genuine issues of material fact and whether the district court erred in its application of the law. See State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). Although we view the evidence in the light most favorable to the nonmoving party, summary judgment is appropriate against a party who fails to establish the existence of an element essential to its case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (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, Inc., 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).

I.

The district court determined that respondents were relieved from owing any duty to appellant because the puddle was an open and obvious dangerous condition. A property owner has a reasonable duty to protect persons from being injured by foreseeable dangerous conditions on the property, unless the risk of harm is “obvious.” Peterson v. W.T. Rawleigh Co., 274 Minn. 495, 497, 144 N.W.2d 555, 557-58 (1966). The district court reasoned that “not only was the [puddle] open and obvious, but [appellant] saw and recognized the condition as dangerous.” We disagree with the district court’s conclusion that the puddle in this case is the type of condition that belongs among those recognized as “obvious” as a matter of law.

The test for obviousness is not whether the injured person actually saw the danger, but whether in fact it was visible. Munoz v. Applebaum’s Food Market, Inc., 293 Minn. 433, 434, 196 N.W.2d 921, 922 (1972). Thus, the key consideration is the nature of the condition, and not the injured party’s perception. The nature of the puddle in this case differs significantly from the obvious conditions appellate courts have recognized as relieving a landowner from any duty. For example, conditions involving dangers so obvious that no warning was necessary include a low hanging branch, a lake, a steep hill, a large planter, and a 20-foot square pool of water. See Baber v. Dill, 531 N.W.2d 493, 496 (Minn.1995) (citing cases). Moreover, there is a critical qualifier to the general rule: even if a danger is known and obvious, landowners may still be liable to an injured person if the landowner should anticipate the harm despite the injured person’s knowledge or the obviousness of the condition. Sutherland v. Barton, 570 N.W.2d 1, 7 (1997).

The puddle here, which covered a step, was small in comparison to the other conditions that our ease precedent has established as “obvious.” This- puddle might have been obvious to appellant as she carefully looked down while descending the coliseum stairs. The same puddle may have, however, easily gone completely unseen by a spectator who, for instance, descended the steps while keeping his or her attention on the activity in the show ring. Recognizing conditions such as the puddle in this case as “obvious” as a matter of law would extend the “open and obvious” defense to relatively obscure dangerous conditions, and, in turn, may allow knowing, careless landowners to escape responsibility for less-apparent dangerous conditions created by their negligent actions. Because this is not the law, we conclude that the district court erred. Respondents were not entitled to summary judgment on the basis that the puddle was an open and obvious dangerous condition.

II.

As a second ground for granting summary judgment to respondents, the district court found that there was no genuine issue of material fact as to whether respondents had constructive knowledge of the puddle. Appellant asserts that respondents had constructive knowledge of the puddle and thus owed her a duty to tend to the puddle in a more timely fashion. A property owner has a duty to use reasonable care to prevent persons from being injured by conditions on the property that represent foreseeable risk of injury. Hanson v. Christensen, 275 Minn. 204, 213, 145 N.W.2d 868, 874 (1966). But even when landowners owe persons a duty to keep and maintain their premises in a reasonably safe condition, they are not insurers of safety. Wolvert v. Gustafson, 275 Minn. 239, 241, 146 N.W.2d 172, 173 (1966). Unless the dangerous condition actually resulted from the direct actions of a landowner or his or her employees, a negligence theory of recovery is appropriate only where the landowner had actual or constructive knowledge of the dangerous condition. Messner v. Red Old Stores, 238 Minn. 411, 413, 57 N.W.2d 659, 661 (1953). Appellant has the burden of proving constructive knowledge. See id. at 414, 57 N.W.2d at 662.

Constructive knowledge of a hazardous condition may be established through evidence that the condition was present for such a period of time so as to constitute constructive notice of the hazard. Anderson v. St. Thomas More Newman Ctr., 287 Minn. 251, 253, 178 N.W.2d 242, 243-44 (1970). But speculation as to who caused the dangerous condition, or how long it existed, warrants judgment for the landowner. See Bob Useldinger & Sons, Inc., v. Hangsleben, 505 N.W.2d 323, 328 (Minn.1993) (affirming grant of summary judgment where nonmoving party engages in mere speculation and conjecture); Messner, 238 Minn, at 413-15, 57 N.W.2d at 661-62 (grant of judgment notwithstanding verdict proper where there was no direct evidence as to how a banana peel came to be on the floor, or how long it had been there).

Appellant did not present any evidence showing who made the puddle, what the liquid was, or that any U of M or State Fair staff had notice of it. She testified that the puddle was not on the step when she ascended the stairs at 10:00 p.m., but was there when she descended the same stairs at about 10:30 p.m. The puddle was on the step at most a half hour, but could have been made only moments before appellant’s fall, since there is no evidence suggesting that others had walked through the puddle.

Even when viewed in the light most favorable to appellant, and assuming the puddle was made just after 10:00 p.m., 30 minutes was not sufficient time to give respondents constructive notice of the late-night puddle made in the coliseum stands during the horse show. Cf. Otis v. First Nat’l Bank of Minneapolis, 292 Minn. 497, 195 N.W.2d 432 (1972) (holding that plaintiff failed to show that the defendant had actual or constructive notice of a puddle of water that had accumulated on a bank floor on a rainy day, 20 minutes after the bank opened); Saari v. S.S. Kresge Co., 257 Minn. 290, 293, 101 N.W.2d 427, 430 (Minn.1960) (holding that plaintiff failed to show that the defendant had constructive notice of gum on a stair where there was evidence that defendant had been diligent in keeping the premises clean and the source of the gum, and length of time the gum remained on the stair, were undetermined).

The district court correctly ordered summary judgment on the basis that respondents lacked constructive notice of the puddle. There are no genuine issues of material fact as to whether respondents had constructive notice of the puddle. Because respondents did not have actual or constructive notice of the dangerous condition, they owed appellant no duty as a matter of law, and we affirm on this basis.

DECISION

The district court correctly granted summary judgment on the ground that respondents did not have actual or constructive notice of the puddle that caused appellant’s fall, even though the puddle was not “open and obvious” as a matter of law.

Affirmed.


source: Caselaw Access Project

author: HALBROOKS, Judge

license: Public Domain

text:
    Timothy J. EDWARD, Relator, v. SENTINEL MANAGEMENT CO., Respondent, Commissioner of Economic Security, Respondent.
    No. C1-99-1851.
    Court of Appeals of Minnesota.
    June 6, 2000.
    Rolf E. Gilbertson, Zelle, Hofmann, Vo-elbel & Gette, L.L.P., Minneapolis, for relator.
    Barbara A. Burke, Andrea E. Reisbord, Cousineau, McGuire & Anderson, Minneapolis, for respondent Sentinel Management Co.

      Kent E. Todd, St. Paul, for respondent commissioner.
    Considered and decided by PETERSON, Presiding Judge, HALBROOKS, Judge, and HUSPENI, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

HALBROOKS, Judge

As a term of the settlement of Ms claim for workers’ compensation benefits, relator was required to quit his employment. After applying for reemployment benefits, the commissioner’s representative determined that relator quit without good reason caused by employer, disqualifying him from receiving benefits. On appeal, relator contends that he was required to terminate Ms employment to obtain a settlement, constituting good reason to quit his employment. Because relator had the option of remaining employed and continuing to pursue his workers’ compensation claim, we hold that relator did not have good reason caused by his employer to quit and, therefore, we affirm.

FACTS

Relator Timothy Edward was employed as a caretaker/leasing agent by respondent Sentinel Management Company. On November 30, 1996, in the course of his employment, Edward suffered a low back injury. Edward filed a workers’ compensation claim with respect to the incident. Despite his injury, Edward was able to perform his job and continued to work full-time without restrictions for Sentinel for several years.

On October 9, 1998, Edward and Sentinel agreed to a settlement of his workers’ compensation claim. Under the terms of the settlement, Sentinel was required to pay Edward $30,000. In exchange, Edward agreed to resign his position with Sentinel effective on the date of the award and to sign a voluntary resignation form. The form stated that Edward voluntarily resigned “[i]n exchange for valuable consideration which has been paid herein.” The award and Edward’s resignation became effective on November 11,1998. Edward nevertheless continued to work for Sentinel for another month until he was informed that, pursuant to the settlement agreement and his resignation, he was required to quit.

Edward applied to the Department of Economic Security for reemployment benefits, but the department determined that he was disqualified. Specifically, the department found that Edward had not “quit with good reason caused by the employer.” Edward appealed the department’s determination to a reemployment insurance judge. The reemployment insurance judge affirmed the department’s decision. Edward thereafter appealed to the representative of the Commissioner of Economic Security. The commissioner’s representative affirmed the decision of the reemployment insurance judge. This appeal followed.

ISSUE

Did Edward quit his employment with good reason caused by Sentinel?

ANALYSIS

An employee who quits employment is disqualified from reemployment benefits unless the employee “quit the employment because of a good reason caused by the employer.” Minn.Stat. § 268.095, subd. 1 (1998). The findings of the commissioner’s representative are accorded considerable deference. White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn.1983). Whether an employee had good reason to quit, however, is a question of law. Wood v. Menard, Inc., 490 N.W.2d 441, 443 (Minn.App.1992). This court exercises its independent judgment on questions of law. Ress v. Abbott NW Hosp., Inc., 448 N.W.2d 519, 523 (Minn.1989).

The legislature has defined a “good reason” as a reason:

(1) that is directly related to the employment and for which the employer is responsible; and
(2) that is significant and would compel an average, reasonable worker to quit.

Minn.Stat. § 268.095, subd. 3 (1998). Once the employer establishes that the employee quit the employment, the burden of proof shifts to the employee to show that he had good reason. Williams v. Right Step Academy, 607 N.W.2d 482, 484-85 (Minn.App.2000).

Edward argues that his reason for resigning was a “good reason” as defined by Minn.Stat. § 268.095, subd. 3. Because the reason arose from a work-related injury, Edward contends that it was directly related to the employment. Edward further contends that a reasonable person would have accepted the settlement and resigned.

Sentinel and the commissioner argue that the circumstances of this case are analogous to those present where an employee receives incentives for early retirement. In Kehoe v. Minnesota Dep’t of Econ. Sec., 568 N.W.2d 889, 890 (Minn.App.1997), the employee accepted a bonus for participating in an early retirement program. The court of appeals affirmed the decision- of the commissioner’s representative that the employee did not. quit with good cause, holding:

When an employee has the choice of remaining employed or voluntarily resigning and receiving a bonus, the termination of his employment is without good cause attributable to his employer.

Kehoe, 568 N.W.2d at 891. In so holding, this court adopted the'reasoning in a decision of the identical issue made by the Michigan Court of Appeals. Id. at 890-91. The Michigan court held that accepting early retirement benefits and resigning did not constitute good cause. McArthur v. Borman’s, Inc., 200 Mich.App. 686, 505 N.W.2d 32, 37 (1993). The court focused on the purpose of unemployment benefits, i.e., to assist those who are unemployed through no fault of their own, and the fact that the employees could have rejected the incentives and continued working. Id. at 36.

Absent from the early retirement cases, as well as the present case, is some form of compulsion. To constitute a good reason, the reason must “compel” the employee to quit. Minn.Stat. § 268.095, subd. 3(2). As the supreme court has recognized, “there must be some compulsion produced by extraneous and necessitous circumstances.” Ferguson v. Department of Employment Servs., 311 Minn. 34, 44 n. 5, 247 N.W.2d 895, 900 n. 5 (1976).

In the present case, Edward had two viable options. He could resign and take the settlement offer. Or, he could reject the offer, continue-working, and continue to pursue his workers’ compensation claim. Edward admits that he was able to perform his employment duties. In fact, he continued to work for Sentinel up through, and even one month past, his date of resignation. Moreover, Edward does not argue that he felt economically coerced into accepting the settlement terms. Instead, he said that he “needed to get away from the worker’s comp situation because it was causing stress on [his] marriage” and because he “could not deal with Lisa, the [workers’ compensation] case worker.”

“A good personal reason does not equate with good cause.” Kehoe, 568 N.W.2d at 891 (quoting McArthur, 505 N.W.2d at 37). As with Michigan’s Employment Security Act, our reemployment compensation statutory scheme is intended to benefit those who become unemployed through no fault of their own. Erb v. Commissioner of Econ. Sec., 601 N.W.2d 716, 718 - (Minn.App.1999). Considering the facts of this case, the analogy to cases involving incentives for early retirement is well-reasoned. Edward had the option of remaining employed or resigning and chose the latter for personal reasons that were only indirectly related to his employment. Accordingly, we hold that Edward did not have good reason for quitting caused by his employer.

DECISION

The commissioner’s representative did not err by concluding that Edward did not have good reason to quit his employment and that he was disqualified from receiving reemployment benefits.

Affirmed.

      . We do not imply that an employee who must resign in order to obtain a workers’ compensation settlement could never have good reason to quit. For example, in Larson v. Michigan Employment Sec. Comm'n, 2 Mich.App. 540, 140 N.W.2d 777, 781 (1966), the Michigan Court of Appeals held that a severely-injured employee who agreed to resign in exchange for a workers’ compensation settlement had good cause to quit. The employee in Larson, however, was unable to perform his former job duties. Id. at 778. The court recognized that of the employee's two alternatives, remaining employed without any income or resigning with income, there was only one tenable alternative. Id. at 780. The facts present in Larson simply are not present in the instant case. See McArthur, 505 N.W.2d at 36 (Larson limited to the facts of that particular case).


author: RANDALL, Judge.

text:
    In re the Marriage of Melissa Ann DEASON, petitioner, Appellant, v. Tracy Sean DEASON, Respondent.
    No. C2-99-1650.
    Court of Appeals of Minnesota.
    June 6, 2000.

      DeGalynn Wade, Southern Minnesota Regional Legal Services, Inc., St. Paul, for appellant.
    Amy L. Senn, Senn and Associates, Cottage Grove, and Gregory. J. Schmidt, Spruce Tree Centre, St. Paul, for respondent.
    Considered and decided by AMUNDSON, Presiding Judge, RANDALL, Judge, and HUSPENI, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

RANDALL, Judge.

On appeal from a dissolution judgment, appellant challenges the district court’s determination that she is not entitled to any portion of respondent’s military pension. Appellant asserts that the district court erroneously concluded that pursuant to 10 U.S.C. § 1408(d)(2) (1994), appellant is not entitled to receive any portion of the pension because respondent did not complete ten years of creditable military service during the parties’ marriage. Appellant further asserts that although the ten-year requirement is inapplicable, respondent had over ten years of creditable military service' during the parties’ marriage. We reverse and remand.

FACTS

Appellant Melissa Ann Deason and respondent Tracy Sean Deason married in March 1988. Their marriage was dissolved by a judgment entered August 4, 1999. The parties stipulated to all issues except the division of respondent’s military pension. No trial was held, and the case was submitted to the district court on the parties’ memoranda and supporting documents. '

In its findings, the district court stated that it was “undetermined” whether appellant was entitled to a portion of respondent’s military pension. In its conclusions of law, the district court cited 10 U.S.C. § 1408(d)(2) (1994), a provision of the Uniformed Services Former Spouses’ Protection Act, and concluded that although the parties were married over ten years, because respondent did not have ten years of creditable military service during the marriage, appellant was not entitled to any portion of respondent’s military pension.

Respondent enlisted in the Air Force in February 1987, approximately one year before the parties’ marriage. He was discharged in December 1994. Respondent joined the National Guard immediately after leaving full-time military service. He served as a Guard member until January 1998, when he re-enlisted as a full-time member of the Air Force. At the time of the parties’ dissolution in August 1999, respondent was still enrolled full-time in the Air Force.

ISSUE

Does federal law preclude state courts from apportioning military pension benefits between the parties in a dissolution action if the military pension-holding spouse did not complete ten years of creditable military service during the parties’ marriage?

ANALYSIS

Although both parties state that this court should review the district court’s decision under an abuse of discretion standard, appellant challenges the district court’s construction of federal statutes. Statutory construction is a question of law reviewed de novo on appeal. Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn.1990).

Appellant challenges the district court’s construction of 10 U.S.C. § 1408(d)(2) (1994), a provision of the Uniformed Services Former Spouses’ Protection Act (USFSPA), which states:

If the spouse or former spouse to whom payments are to be made under this section was not married to the member for a period of 10 years or more during which the member performed at least 10 years of service creditable in determining the member’s eligibility for retired pay, payments may not be made under this section to the extent that they include an amount resulting from the treatment by the court under subsection (c) of disposable retired pay of the member as property of the member or property of the member and his spouse. - • ■ ■

Appellant asserts that the district court erred when it concluded that this provision precludes awarding a portion of a party’s military pension benefits to the other party in a dissolution action absent ten years of creditable military service during the marriage. Appellant contends that this statute’s ten-year requirement refers only to when a state court may order direct payment of a military pension from the Secretary of Defense to a former spouse. We agree.

Military pensions may qualify as marital property subject to division in a dissolution. Mortenson v. Mortenson, 409 N.W.2d 20, 22 (Minn.App.1987): Minnesota appellate courts have not addressed whether 10 U.S.C. § 1408(d)(2) limits such division to cases where the spouse with the military pension had ten years of creditable service during the marriage. The U.S. Supreme Court has recognized, however, that the USFSPA created only a “payments mechanism” under which the federal government-will make direct payments to a former spouse pursuant to a state court order. Mansell v. Mansell, 490 U.S. 581, 585, 109 S.Ct. 2023, 2027, 104 L.Ed.2d 675 (1989). The Court stated that this “direct payments mechanism” is limited by the ten-year requirement. Id. A number of states have also addressed the issue, and a majority of those states have held that 10 U.S.C. § 1408(d)(2) governs only the method of payment and does not preclude the division of military pensions where the ten-year requirement has- not been met. See, e.g., Beltran v. Beltran, 183 Cal.App.3d 292, 227 Cal.Rptr. 924, 927 (1986) (holding ten-year requirement acts only as limitation on direct payments from government to former spouse), review denied (Cal. Oct. 16, 1986); Le Vine v. Spickelmier, 109 Idaho 341, 707 P.2d 452, 455 (1985) (same); Carranza v. Carranza, 765 S.W.2d 32, 33-34 (Ky.Ct.App.1989) (holding ten-year requirement is not barrier to division of pension but factor in determining how entitlement will be collected); Cook v. Cook, 18 Va.App. 726, 446 S.E.2d 894, 896 (1994) (same); Parker v. Parker, 750 P.2d 1313, 1314 (Wyo.1988) (holding ten-year threshold is limitation only on direct payments to former spouse).

As the U.S. Supreme Court recognized in Mansell, the legislative history supports this interpretation. See Mansell, 490 U.S. at 591 n. 13, 109 S.Ct. at 2030 n. 13. The original House of Representatives version of the bill enacting the USFSPA provided that a military pension could only be considered property if the marriage lasted at least ten years while the service member performed creditable service. H.R. Conf. Rep. No. 97-749, at 165 (1982), reprinted in 1982 U.S.C.C.A.N. 1555, 1569, 1571. The Senate committee considered and rejected a similar requirement. S.Rep. No. 97-502, at 9-11 (1982), reprinted in 1982 U.S.C.C.A.N. 1596, 1604-05. The conference committee agreed to remove the House provision but also agreed that direct payments from the military would be permitted only if a couple was married at least ten years while the service member performed military service. H.R. Conf. Rep. No. 97-749, at 166-67 (1982), reprinted in 1982 U.S.C.C.A.N. 1569, 1572.

We conclude that the district court erred in its interpretation and application of 10 U.S.C. § 1408(d)(2). Because of our decision on this issue, we need not resolve whether respondent completed ten years of creditable service during the parties’ marriage.

Notably, although respondent’s pension is currently nonvested and unmatured, it may be classified as marital property. See Janssen v. Janssen, 331 N.W.2d 752, 756 (Minn.1983) (recognizing nonvested pensions are included in marital property definition). In Janssen, the supreme court recognized that the proper procedure in such cases is to divide the pension, awarding each spouse an appropriate percentage, and order apportionment “only if and when such benefits are paid.” Id. We reverse and remand for a similar award.

DECISION

The district court erred in concluding that 10 U.S.C. § 1408(d)(2) (1994) precludes the division of military pensions in dissolution actions where the party with a military pension did not complete ten years of creditable service during the marriage.

Reversed and remanded.

      .Respondent's counsel conceded during oral argument that 10 U.S.C. § 1408(d)(2) governs only the form of distribution of the pension. Respondent’s counsel then attempted to characterize the district court's decision to allocate respondent's entire military pension to respondent as a discretionary division of property. We cannot agree with this characterization of the district court’s decision. While it is undisputed that dividing marital property is generally a discretionary decision for the district court, the district court in this case did not exercise its discretion when it awarded respondent his full military pension. Instead, the court interpreted 10 U.S.C. § 1408(d)(2) and concluded, as a matter of law, that appellant was not entitled to a portion of respondent's pension because respondent did not have ten years of creditable military service during the parties’ marriage.

      . This court has held that 10 U.S.C. § 1408(e) (1994), another USFSPA provision, applies only to direct government payments. Deliduka v. Deliduka, 347 N.W.2d 52, 55 (Minn.App.1984), review denied (Minn. July 26, 1984). Subsection (e) states that the total amount of disposable retired pay payable under court orders pursuant to this act may not exceed 50% of the member's disposable retired pay. 10 U.S.C. § 1408(e).

      . The Supreme Court noted in Mansell that the USFSPA and the Court’s decision in Man-sell apply to both community-property and equitable-distribution states. Mansell, 490 U.S. at 584, 109 S.Ct. at 2026 n: 2.


author: HARTEN, Judge

text:
    NORAM INVESTMENT SERVICES, INC., f/k/a Equity Securities Trading Company, Inc., Appellant, v. STIRTZ BERNARDS BOYDEN SURDEL & LARTER, P.A., Respondent, and Stirtz Bernards Boyden Surdel & Larter, P.A., Third-Party Plaintiff, v. Global Financial Group, Inc., a Colorado Corporation, et al., Third-Party Defendants.
    No. C5-99-2162.
    Court of Appeals of Minnesota.
    June 6, 2000.

      Vincent D. Louwagie, Karlyn Vegoe Bo-raas, Fruth & Anthony, P.A., Minneapolis, for appellant.
    Thomas J. Shroyer, Peter A. Roller, Mathew M. Meyer, Moss & Barnett, P.A., Minneapolis, for respondent. .
    Richard L. Klein, Willkie Farr & Gallagher, New York City, and Dale M. Wagner, Bassford, Lockhart, Truesdell & Briggs, P.A., Minneapolis, for amicus curiae American Institute of Certified Public Accountants.
    Considered and decided by, HARTEN, Presiding Judge, WILLIS, Judge, and SHUMAKER, Judge.
   OPINION

HARTEN, Judge

Appellant, a securities broker, alleges that the district court erred in granting respondent, an accountant, summary judgment on appellant’s claim for negligent misrepresentation. Because we conclude that respondent is not liable to appellant, we affirm.

FACTS

Equisure, Inc., was required to file audited financial statements when it applied to have its stock listed on the American Stock Exchange (AmEx). It retained an accounting firm, respondent Stirtz Ber-nards Boyden Surdel & Larter, P.A. (Stirtz). Stirtz issued a favorable interim audit report that Equisure used to gain listing on the stock exchange.

Equisure later retained Stirtz to audit the financial statements required for Equi-sure’s Form 10 filing with the United States Securities and Exchange Commission (SEC). Stirtz’s auditor knew that the audit was for the SEC reports. Stirtz issued a “clean” audit opinion which, with the audited financial statements, was included in Equisure’s SEC filing and made available to the public.

Appellant NorAm Investment Services, Inc., fik/a Equity Securities Trading Company, Inc. (NorAm), a securities broker, began lending margin credit to purchasers of Equisure stock. These purchasers advanced only a portion of the purchase price; NorAm extended credit (a margin loan) for the balance and held the stock as collateral for the loan, charging interest on the balance.

When NorAm had loaned approximately $900,000 in margin credit, its president, Nathan Newman, reviewed Stirtz’s audit report and the audited financial statements. Based on his review, NorAm extended over $1.6 million of additional margin credit to purchase Equisure shares.

When AmEx stock exchange stopped trading Equisure stock due to allegations of insider trading and possible stock manipulation, the stock became worthless. NorAm was left without collateral for over $2.5 million in margin loans. Stirtz resigned as auditor of Equisure and warned that its audit report might be misleading and should no longer be relied upon.

NorAm sued Stirtz for negligent misrepresentation, negligence and violation of the Minnesota Consumer Fraud Act. The district court denied Stirtz’s motion to dismiss for failure to state a claim but granted Stirtz’s subsequent motion for summary judgment, ruling that under the Restatement (Second) of Torts § 552, Stirtz was not liable to NorAm. NorAm appeals.

ISSUE

Is an accountant liable under Restatement (Second) of Torts § 552 for negligent misrepresentation to a securities broker who relied on the accountant’s report to extend margin credit?

ANALYSIS

The district court shall grant summary judgment when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to judgment as a matter of law. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). On appeal, this court must view the evidence in the light most favorable to the party against whom judgment was granted. Id.

The Restatement (Second) of Torts § 552 (1977) sets out the criteria for accountants’ liability to third parties who rely on the accountants’ negligent audits.

(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. (2) * * * the liability stated in Subsection (1) is limited to loss suffered
(a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and
(b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction.

Minnesota has adopted the Restatement approach. See TCF Banking & Sav., F.A. v. Arthur Young & Co., 706 F.Supp. 1408, 1418 (D.Minn.1988); Bonhiver v. Graff, 311 Minn. 111, 122, 248 N.W.2d 291, 298-99 (1976) (applying the Restatement (Second) rule as it then existed in draft form).

Bonhiver held that an accounting firm owed a duty of care to an insurance broker because a “chain of reliance” linked the firm, the state insurance commissioner who the firm knew would rely on its work product, and the insurance broker within the class of persons who should be protected by the commissioner’s reliance. Id. at 126, 248 N.W.2d at 301. NorAm relies on Bonhiver, arguing that a similar chain links Stirtz, the SEC that Stirtz knew would rely on its work, and NorAm, which should be protected by the SEC’s reliance. We disagree.

The chain of reliance here is several links longer than the chain in Bonhiver.

It is not enough that the maker merely knows of the ever-present possibility of repetition to anyone, and the possibility of action in reliance upon it, on the part of anyone to whom it may be repeated.

Restatement (Second) of Torts § 562, cmt. h (1977). Unlike the insurance broker in Bonhiver, NorAm as a broker extending margin credit is not clearly in the class that should be protected by the SEC’s reliance. “If that liability is to be drawn somewhere short of foreseeability, it must be drawn on pragmatic grounds alone.” Bonhiver, 311 Minn. at 129, 248 N.W.2d at 302.

We conclude that Stirtz is not hable for the bad margin loans made by NorAm. As the district court observed, holding Stirtz liable to NorAm could lead to virtu-' ally unlimited liability.

DECISION

As a matter of law, on these facts, Stirtz cannot be held liable to NorAm for its negligent misrepresentation.

Affirmed.

      . The Restatement presents a middle ground between two other rules: the traditional foreseeability rule, extending accountants’ liability to all foreseeable users of their work, and the privity rule, restricting accountants' liability to those with whom they are in privity. See TCF Banking, 706 F.Supp. at 1417-18.


author: SHUMAKER, Judge

text:
    STATE of Minnesota, Eugene W. Pollard, Francisco Rodriquez, Respondents, v. Kathleen TOKHEIM, intervenor, Appellant.
    No. C2-99-1776.
    Court of Appeals of Minnesota.
    June 13, 2000.

      Mike Hatch, Attorney General, P. Kenneth Kohnstamm, Assistant Attorney General, St. Paul, for respondent State of Minnesota.
    Eugene W. Pollard, Waseca, respondent pro se.
    Francisco Rodriquez, Alexandria, respondent pro se.
    Albert T. Goins, Ward, Goins, Ward & Wood, P.A., St. Paul, and Manly A. Zimmerman, Zimmerman & Bix, Ltd., Minneapolis, for appellant.
    Considered and decided by SHUMAKER, Presiding Judge, CRIPPEN, Judge, and KLAPHAKE, Judge.
   OPINION

SHUMAKER, Judge

Two Minnesota state troopers were sued and they asked the commissioner of public safety to indemnify and defend them. After reviewing written submissions of outside counsel, the commissioner refused to indemnify the troopers, finding that they were acting outside the scope of their employment.

The state filed a separate declaratory judgment, seeking a declaration that it need not indemnify the troopers. The district court granted the state’s motion and the woman who sued the troopers appealed. We hold that the commissioner’s refusal to indemnify the troopers was a quasi-judicial determination subject to challenge only by writ of certiorari. Therefore, the district court lacked subject-matter jurisdiction over the declaratory judgment action. Accordingly, we vacate the judgment.

PACTS

Minnesota state troopers Eugene Pollard and Francisco Rodriguez attended a mandatory training session at the state patrol’s training facility. Later that evening, while the troopers were off-duty and out of uniform, they engaged in group sex with intervenor-appellant Kathleen Tok-heim. .

Tokheim claimed the sexual relations were nonconsensual and filed a civil suit against the troopers individually and in their capacity as Minnesota state troopers, and against the Minnesota Commissioner of Public Safety and the State of Minnesota. The troopers asked the state to defend and indemnify them. The commissioner notified the troopers of their opportunity for a hearing on their request:

You [troopers] have requested defense and indemnification by the State ⅜ * ⅜. Minn.Stat. § 3.736, subd. 9 (1996), provides that defense and indemnification is available for state employees only if the appointing authority certifies that the employee was acting within the scope of his employment in the circumstances on which the claims are based.
This letter constitutes your notice that the Department believes there is a question whether your conduct was within the scope of employment and, therefore, whether you should be certified for defense and indemnification. Before a decision is made on certification, you have an opportunity to explain to the Commissioner or his designee why your conduct should be certified as within the scope of your employment.
* * * You may bring legal counsel to the meeting. [Or] * * * you may make written submission^] * * *.
After considering your oral or written comments, the Department will inform you whether or not you have been certified for the purpose of providing you a defense and indemnification * * *.

Instead of attending a formal meeting, the troopers chose to submit written arguments to the commissioner through their attorneys. The commissioner refused the troopers’ requests for defense and indemnification:

I have reviewed the written submission ⅜ * *. It is my opinion that [the troopers were] not in the scope of [their] employment during this incident with Ms. Tokheim. Accordingly, pursuant to Minn.Stat. Chapter 3.736, subd. 9, the Department of Public Safety declines to certify [the troopers] for defense and indemnification in this matter.

The troopers did not appeal this decision.

The state then filed this separate declaratory judgment action and Tokheim intervened. The state moved for summary judgment, claiming that the troopers are not entitled to defense or indemnification from the state. The district court granted the state’s motion. Tokheim then moved for reconsideration, claiming the commissioner’s refusal to defend or indemnify .the troopers was a quasi-judicial action over which the district court had no subject-matter jurisdiction. The district court denied Tokheim’s motion. Tokheim appeals, asserting that the district court lacked subject-matter jurisdiction, erred in granting the state summary judgment, and was collaterally estopped from considering the matter based on a default judgment entered in federal court.

ISSUE ,

The commissioner reviewed written arguments of outside counsel, made factual determinations, and applied Minn.Stat. § 3.736, subd. 9 (1996), before finding that the troopers were acting outside the scope of their employment. Do these actions constitute a quasi-judicial decision over which .the district court lacks subject-matter jurisdiction?

ANALYSIS

The existence of subject-matter jurisdiction is a question of law, which is reviewed de novo on appeal. Shaw v. Board of Regents, 594 N.W.2d 187, 190 (Minn.App.1999), review denied (Minn. July 28, 1999). The district court shall dismiss actions over which it lacks subject-matter jurisdiction. Minn. R. Civ. P. 12.08(c).

Review of quasi-judicial decisions is invoked by writ of certiorari to this court. Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn.1992); see also Heideman v. Metro. Airports Com’n, 555 N.W.2d 322, 323-24 (Minn.App.1996) (holding' that review of administrative decisions by writ of certiorari is exclusively to the court of appeals). A quasi-judicial decision is one which determines the rights of contending parties and is binding upon them. Meath v. Harmful Substance Compensation Bd., 550 N.W.2d 275, 280 (Minn.1996). The Minnesota Supreme Court has summarized the indicia of quasi-judicial decisions as a three-part test:

(1) investigation into a disputed claim and weighing of evidentiary facts; (2) application of those facts to a prescribed standard; and (3) a binding decision regarding the disputed claim.

Minnesota Ctr. for Envtl. Advocacy v. Metro. Council, 587 N.W.2d 838, 842 (Minn.1999).

We hold that the commissioner’s refusal to defend or indemnify the troopers was a quasi-judicial decision under the three-prong test of Metro. Council. First, the commissioner reviewed the troopers written arguments, which summarized their version of the facts and gave their legal analysis. This was an investigation into the troopers disputed claim and a weighing of disputed evidentiary facts. Second, the commissioner analyzed the facts and Minn.Stat. 3.736, subd. 9 (1996), which allows the state to defend or indemnify its employees only if the appointing authority certifies that the employee was acting within the scope of his employment in the circumstances on which the claim is based. On this review, the commissioner refused to provide a defense or to indemnify the troopers. This is an application of facts to a prescribed standard. Finally, the commissioners decision is binding because there is no means of review other than by writ of certiorari to this court. Minn.Stat. 3.736, subd. 9, expressly vests the employees appointing authority with the power to certify an employees claim. These actions are quasi-judicial and therefore review is exclusively by writ of certio-rari to this court.

Because we hold that the district court lacked subject-matter jurisdiction over the state’s declaratory judgment action, we do not reach the merits of Tokheim’s other claims. Lack of subject-matter jurisdiction renders a judgment void ab initio. Kulinski v. Medtronic Bio-Medicus, Inc., 577 N.W.2d 499, 502 (Minn.1998).

DECISION

The commissioners refusal to certify that the troopers were acting within the scope of their employment was a quasi-judicial decision reviewable only by a timely certiorari appeal to this court. The district court lacked subject-matter jurisdiction to consider the states declaratory judgment action and its judgment is void ab initio.

Vacated.


author: CRIPPEN, Judge.

text:
    Kristen FRYKMAN, Respondent, v. UNIVERSITY OF MINNESOTA-DULUTH, Appellant.
    No. C6-99-1733.
    Court of Appeals of Minnesota.
    June 13, 2000.

      Robert M. Kaner, Duluth, MN (for respondent).
    Steven L. Reyelts, Eric D. Hylden, Hal-verson Watters Downs Reyelts & Bate-man, Ltd., Duluth, MN (for appellant).
    Considered and decided by SHUMAKER, Presiding Judge, CRIPPEN, Judge, and KLAPHAKE, Judge.
   OPINION

CRIPPEN, Judge.

Appellant University of Minnesota-Duluth, claiming that it owed no duty to respondent Kristen Frykman, who slipped and fell on its premises, objects to the trial court’s denial of its motion for a judgment notwithstanding the jury’s earlier verdict. Because the trial court properly upheld the jury’s determination that appellant’s duty arose before respondent was injured, we affirm.

FACTS

On February 10, 1996, respondent slipped and fell on ice as she exited a building on the UMD campus between 11:00 and 11:30 a.m. She suffered serious injuries, including a broken ankle. The weather reports from the Duluth airport show that there had been measurable amounts of freezing rain starting on February 9, continuing until at least 1:00 a.m. on the tenth, and that thereafter, trace amounts of precipitation continued to fall through 9:00 a.m. on February 10, and then again during the hours ending at 1:00 p.m. and 2:00 p.m. The school maintenance workers had completed sanding the icy sidewalks by 2:00 p.m. on the tenth.

The trial judge instructed the jury on the elements required to find that appellant, as a possessor of land, had committed negligence; the court informed the jurors that a “possessor of land may wait to the end of a storm and a reasonable time thereafter before removing ice and snow from sidewalks and steps.” The jury returned a verdict finding respondent’s fall was caused by appellant’s negligence, awarding respondent more than $78,000 for damages.

Appellant moved for a judgment notwithstanding the verdict, contending that it had no duty to protect respondent until after the ice-creating conditions had ceased and that the evidence showed either that these weather incidents had not ceased or had ceased no later than 9:00 a.m., leaving too little time to clear the ice before respondent’s fall occurred. The trial court denied this motion, finding that the questions regarding the end of the weather event and the beginning of appellant’s duty to act were disputed fact questions properly submitted to and decided by the jury.

ISSUE

Did the trial court properly determine that appellant’s duty of care arose before respondent was injured?

ANALYSIS

A judgment notwithstanding the jury’s verdict is proper when it has no reasonable support in fact or is contrary to the law. Diesen v. Hessburg, 455 N.W.2d 446, 452 (Minn.1990). We review the denial of the motion de novo, Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn.1998). The evidence in the case must be viewed in the light most favorable to the prevailing party, Beck v. American Sharecom, Inc., 514 N.W.2d 584, 587 (Minn.App.1994), revieio denied (Minn. June 29, 1994). We must affirm the denial “if there is.any competent evidence reasonably tending to sustain the verdict.” See Rettman v. City of Litchfield, 354 N.W.2d 426, 429 (Minn.1984) (citation omitted). The judgment will only be granted when it would be impossible for reasonable minds to come to a different conclusion because the evidence is so overwhelmingly on one side. Lamb v. Jordan, 333 N.W.2d 852, 855 (Minn.1983).

Appellant points to the weather reports indicating that precipitation continued to accumulate in some form after the fall, and a witness’ observation that a “mist” or “fog-type” “condensation” accumulated on his glasses throughout the day of respondent’s fall. Appellant claims that this evidence established that the storm was ongoing, entitling appellant to-a reasonable time after the storm’s end to clear up dangerous conditions. See Mattson v. St. Luke’s Hosp., 252 Minn. 230, 233, 89 N.W.2d 743, 745 (1958). But the evidence does not compel a verdict different from that which the jury found.

The evidence permitted a finding that the weather incident or event had lapsed, even if it did not end, at 9:00 a.m., a fact corroborated by evidence that appellant’s ground crews had completed sanding activities in the early afternoon. Moreover, the jury could assess the seriousness of the misting condition, which continued throughout the day of February 10, to reach the conclusion that the principal wéather event, the freezing rain, had ended some time before the incident occurred.

Appellant’s arguments suggest that the Mattson line of cases presents a legal question of whether or not a duty even exists. But these cases make it unquestionable that a possessor of land owes a duty to clear dangerous situations from its property. See Mattson, 252 Minn, at 233, 89 N.W.2d at 745, Hedglin v. Church of St. Paul, 280 Minn. 119, 123-24, 158 N.W.2d 269, 272 (1968), Niemann v. Northwestern College, 389 N.W.2d 260, 262 (Minn.App.1986), review denied (Minn. Aug. 27, 1986). The task, these cases demonstrate, is to determine “what constitutes an exercise of reasonable care as applied to the circumstances of this case.” Hedglin, 280 Minn, at 124, 158 N.W.2d at 272. Absent compelling evidence, this is a jury question. See Steffey v. Soo Line R.R., 498 N.W.2d 304, 308 (Minn.App.1993), review denied (Minn. May 28, 1993).

Also, none of the Mattson line of cases involves a question as to when the storm ended, as those cases deal with a clear-cut storm incident. In cases where the parameters of the weather event are less than clear, it is not improper to present this question to a jury. Because the record contains “competent evidence reasonably tending to sustain the verdict,” we must affirm the trial' court’s refusal to order a judgment notwithstanding the verdict. Rettman v. City of Litchfield, 354 N.W.2d at 429.

DECISION

The evidence of record permitted a jury verdict on the question of when appellant’s duty of care arose.

Affirmed.

      . The fact that a possessor of land may have started to clear the dangerous condition from its premises during a storm does not mean that the possessor has assumed a duty to clear the condition before the end of the storm or that the duty has arisen before the end of the storm. See Mattson, 252 Minn, at 233, 89 N.W.2d at 745. But Mattson does not preclude a factfinder, when presented with such evidence, from considering it when determining whether the storm had ended.


author: SCHUMACHER, Judge.

text:
    Janine K. HAAS, individually and as Representative for all others similarly situated, Appellant, v. DAIMLERCHRYSLER CORPORATION, DaimlerChrysler Motors Corporation, and Bloomington Chrysler Jeep Eagle, Inc., individually and as representative for other similarly situated Chrysler dealerships, Respondents.
    No. C7-99-1921.
    Court of Appeals of Minnesota.
    June 13, 2000.
    William B. Butler, William B. Butler, PLLC, Minneapolis, MN; and Daniel J. Biersdorf, Biersdorf & Associates, P.A., Minneapolis, MN; and Vernon J. Vander Weide, Head, Seifert & Vander Weide, Minneapolis, MN (for appellant).
    Kathy A. Wisniewski, John W. Rogers, Bryan Cave LLP, St. Louis, MO; and Richard B. Solum, Michael J. Wahoske, Amy Katz Rotenberg, Dorsey & Whitney LLP, Minneapolis, MN; and Paul A. Banker, Blake W. Duerre, Arthur, Chapman, Kettering, Smetak & Pikala, Minneapolis, MN (for respondents).
    Considered and decided by ANDERSON, Presiding Judge, SCHUMACHER, Judge, and PETERSON, Judge.
   OPINION

SCHUMACHER, Judge.

The district court dismissed the lawsuit of appellant Janine K. Haas, individually and as representative for all others similarly situated, for failure to state a claim on which relief could be granted. We affirm.

FACTS

Haas bought a used Chrysler vehicle from respondent Bloomington Chrysler Plymouth Jeep Eagle, Inc. In keeping with corporate policy, the dealership charged Haas $150 to transfer to her the remainder of the factory warranty on the vehicle. Haas brought a class action lawsuit alleging that the fee violated both the Magnu-son-Moss Warranty Act and section 2-318 of the Uniform Commercial Code. The dealership, along with respondents Daim-lerChrysler Corporation and Daimler-Chrysler Motors Corporation (collectively, “Chrysler”), moved to dismiss the lawsuit, and the district court granted the motion.

ISSUES

1. Does the $150 transfer fee violate the Magnuson-Moss Warranty Act’s prohibition on conditional warranties?

2. Is the $150 transfer fee an unlawful attempt to “limit or exclude” Chrysler’s warranty obligations in violation of section 2-318 of the UCC?

ANALYSIS

In reviewing a case dismissed for failure to state a claim, the only question before us is whether the complaint sets forth a legally sufficient claim- for relief. Elzie v. Commissioner of Pub. Safety, 298 N.W.2d 29, 32 (Minn.1980). We exercise de novo review of such a dismissal. Leonard v. Northwest Airlines, Inc., 605 N.W.2d 425, 428 (Minn.App.2000), review denied (Minn.Apr. 18, 2000).

1. Haas contends that Chrysler violated section 2302(c) of the Magnuson-Moss Warranty Act, which prohibits placing conditions on warranties:

No warrantor of a consumer product may condition his written or implied warranty .of such product on the consumer’s using, in connection with such product, any article or service (other than article or service provided without charge under the terms of the warranty) which is identified by brand, trade,, or corporate name * * ⅜.

15 U.S.C. § 2302(c) (1994).

Chrysler’s warranty provides that it extends only to the first buyer of the vehicle:

Subsequent Buyer/Owner
The Chrysler “Owner’s Choice Protection Plan” Warranty is extended only to the first buyer/owner of the vehicle. If you’re the second buyer/owner of the vehicle, you may transfer the warranty coverage under the “Owner’s Choice Protection Plan” Warranty and the “7/100 Corrosion Warranty” * * * into your name.
To transfer the warranty, you must have an authorized Chrysler Corporation Dealer process a “Transfer of Coverage Application” for you. The cost for this service is $150. You pay this fee directly to the dealer. You must apply for a coverage transfer within 30- days from the date you buy the vehicle. As a Second Buyer/Owner, you may transfer only the remaining “Owner’s Choice Protection Plan” coverage which the first buyer/owner elected, together with the remaining portion of the “7/100 Corrosion Warranty.”

But the regulations promulgated by .the Federal Trade Commission interpreting the Magnuson-Moss Act expressly recognize that a limited warranty may be limited to the initial purchaser of the item. In such a case, the seller must disclose the

identity of the party or parties to whom the written warranty is extended, if the enforceability of the written warranty is limited to the original consumer purchaser or is otherwise limited to persons other than every consumer owner during the term of the warranty.

16 C.F.R. § 701.3(a)(1) (1999) (emphasis added); see also 15 U.S.C. § 2302(a)(2) (1994) (FTC rules may require warranty to disclose the “identity of the party or parties to whom the warranty is extended”). Indeed, Haas concedes that a seller may offer a limited warranty.

Haas argues that the warranty is not conspicuously limited to the first purchaser as required by section 2302(a) of the Act because it offers to “transfer” any “remaining” warranty coverage to a second buyer on the payment of the $150 fee. According to Haas, “[i]f Chrysler in fact extended the * * * warranty only to the first purchaser, there could be no ‘remainder’ of the warranty to ‘transfer.’ ” Haas therefore argues that the warranty is not really a limited warranty, but a warranty that conditions its coverage on the payment of a $150 fee by a second buyer.

This semantic argument is too weak to overcome the clear language of the warranty that it is “extended only to the first buyer/owner of the vehicle.” Despite Haas’s attempts to recast the warranty’s limitation as a condition, the warranty provision is a legitimate limitation on the duration of the warranty as permitted by both the Magnuson-Moss Act and the regulations interpreting it.

Haas also contends that Chrysler may not limit the warranty to the initial purchaser because the warranty is not really a limited warranty, but is instead a “full warranty.” Section 2303 of the Magnu-son-Moss Act and federal regulations both require that a seller conspicuously designate a written warranty as either a “full warranty” or a “limited warranty.” 15 U.S.C. § 2303 (1994); 16 C.F.R. § 700.6(a) (1999). A full warranty is subject to restrictions that do not apply to a limited warranty. See 15 U.S.C. § 2304 (1994) (setting forth requirements for warranties that “meet the Federal minimum standards for warranty”); 15 U.S.C. § 2303(a)(1) (providing that warranty that “meets the Federal minimum standards for warranty set forth in section 2304” be designated “full” warranty).

Haas contends that because the warranty is really a full warranty, it violates the provision of section 2304(b)(1) that forbids a warrantor from imposing “any duty other than notification upon any consumer as a condition” of warranty coverage. 15 U.S.C. § 2304(b)(1). Haas contends that Chrysler impermissibly placed on her the “duty” of paying $150 in order to receive the benefit of the warranty.

Haas relies on Hughes v. Segal Enterprises, Inc., 627 F.Supp. 1231 (W.D.Ark.1986), to argue that where a warrantor labels the warranty in a misleading or deceptive way, courts will construe the warranty in the light most favorable to the consumer to determine whether it is a full or limited warranty. In Hughes, however, the defendant conceded that it “fail[ed] to designate the warranty as a ‘limited’ warranty.” Id. at 1238. In contrast, no reasonable consumer could believe the Chrysler warranty here was a full warranty. The phrases “limited warranty” and “limited warranties” appear at least 34 times in the warranty, including 4 times in the table of contents and at least 7 times in captions printed in reverse relief (white on black) type larger than the type used for the body of the warranty and set off from the body of the warranty by both spacing and graphic elements (thick black bars on which the text is printed). The warranty thus satisfies the statutory requirement that it be conspicuously designated a limited warranty. 15 U.S.C. § 2303(a)(2); see also 16 C.F.R. § 700.6(a) (requiring that “designation or designations should appear clearly and conspicuously as a caption, or prominent title, clearly separated from the text of the warranty.”). Hughes is thus inapplicable.

Chrysler conspicuously designated its warranty a limited warranty and legitimately restricted its duration to the initial owner of the vehicle. As a result, Haas had no statutory right to receive the remainder of the warranty, and the $150 transfer fee violated no provision of the Act. The district court did not err in finding that Haas failed to state a claim for which relief could be granted under the Magnuson-Moss Act.

2. Haas argues that section 2-318 of the UCC prevents Chrysler from charging the $150 transfer fee. Minnesota’s version of that statute provides as follows:

A seller’s warranty whether express or implied extends to any person who may reasonably be expected to use, consume or be affected by the goods and who is injured by breach of the warranty. A seller may not exclude or limit the operation of this section.

Minn.Stat. § 336.2-318 (1998). Haas contends, that the statute by its terms extends the warranty to persons who would reasonably be expected to use the vehicle, including second-hand purchasers such as she. According to Haas, because Chrysler cannot “exclude or limit” the operation of this statute, it cannot charge a fee to transfer the warranty. Instead, Haas contends, the warranty transfers by operation of law.

The flaw in Haas’s argument is that it confuses the first-party right to receive services under the warranty with the third-party statutory right to recover for ■damages caused by breach of the warranty. As Haas concedes and the statute’s caption reflects, this provision of the UCC deals with “Third Party Beneficiaries of Warranties Express or Implied.” Minn. Stat. § 336.2-318; see Essling v. Markman, 335 N.W.2d 237, 240 n. 2 (Minn.1983) (statutory title may be considered when attempting to ascertain legislature’s intent). Section 2-318 provides that the “seller’s warranty whether express or, implied extends to any person * * * who is injured by breach of the warranty.” Minn.Stat. § 336.2-318 (emphasis added). Until Haas is injured by a breach of the warranty, section 2-318 grants her no third-party beneficiary rights.

The warranty in this case specifically provides that it “is extended only to the first buyer/owner of the vehicle.” The warranty goes on to provide that the vehicle’s second buyer can transfer any remaining warranty coverage by having the Chrysler dealer submit a “Transfer of Coverage Application” at a cost to the second purchaser of $150.

Those contractual terms define and limit any rights Haas may have as a third-party beneficiary of the warranty. As the Minnesota Supreme Court has observed, the

rights of third-party beneficiaries “depend upon, and are measured by, the terms of the contract.” Brix v. General Accident & Assurance Corp., 254 Minn. 21, 24, 93 N.W.2d 542, 544 (1958); Restatement (Second) of Contracts § 309 cmt. b (1981) (stating that a third-party beneficiary’s rights are subject to limitations in the contract).

In re Hennepin County 1986 Recycling Bond Litig., 540 N.W.2d 494, 499 (Minn.1995).

Because, the warranty specifically provides that subsequent purchasers may only assume any remaining warranty coverage on the payment of a $150 fee, charging Haas the $150 fee was not a “breach” of the warranty.* Without a breach of the warranty, Haas cannot be a person “who is injured by breach of the warranty.” As a result, section 2-318 does not grant Haas the right to assume the warranty without paying the $150 transfer fee. The district court therefore did not err in concluding that Haas failed on this point to state a claim for which relief could be granted.

Chrysler has moved in the district court for sanctions pursuant to Minn. R. Civ. P. 11 against Haas and asks us to remand the case so that the district court may resolve that motion. Haas’s lawsuit, however, presented novel and colorable legal issues. Because we find as a matter of law that Haas did not violate rule 11, we need not remand the case to the district court.

DECISION

The district court correctly ruled that Haas failed to state a claim on which relief could be granted.

Affirmed.


author: WILLIS, Judge

text:
    MOWER COUNTY HUMAN SERVICES, o/b/o Heidi J. Garcia, Appellants, v. Philip S. GRAVES, Respondent.
    No. C6-99-2008.
    Court of Appeals of Minnesota.
    June 13, 2000.

      Patrick A. Oman, Mower County Attorney, Robert W. Auron, Assistant County Attorney, Austin, MN (for appellants).
    J. Chris Carpenter, Chesley, Kroon, Chambers & Harvey, PLLP, Mankato, MN (for respondent).
    Considered and decided by HALBROOKS, Presiding Judge, AMUNDSON, Judge, and WILLIS, Judge.
   OPINION

WILLIS, Judge

Mower County appeals the district court’s dismissal of its complaint for a determination of paternity. We affirm.

FACTS

Heidi Garcia and respondent Philip S. Graves lived together intermittently from August 1984 to November 1985, during which time they engaged in sexual intercourse. In October 1985, Garcia also had sexual intercourse with S.N. and another unidentified male. On July 22, 1986, Garcia gave birth to V.A.G., and shortly thereafter Garcia began receiving public assistance from Mower County.

In 1988, appellant Mower County Human Services brought a paternity action against Graves on behalf of V.A.G. A guardian ad litem represented V.A.G. in the proceeding. Graves contested paternity, and the case was submitted to the court for trial. Although blood-test results showed a 96.56% likelihood that Graves was the father, the district court ruled that the state failed to establish the paternity of the child and dismissed the complaint.

In May 1999, Mower County Human Services brought a second paternity action against Graves, this time on behalf of Heidi Garcia. Graves moved the district court to dismiss the paternity action on the grounds of res judicata and collateral es-toppel, based on the 1988 order.

The district court dismissed appellant’s complaint on the grounds that it was barred by res judicata and collateral estop-pel, and that the Parentage Act, Minn.Stat. §§ 257.51-74 (1998), provides that a prior judgment determining the existence or nonexistence of paternity is determinative for all purposes. This appeal follows.

ISSUES

1. Did the district court err in concluding that the doctrines of res judicata and collateral estoppel bar a paternity action brought on behalf of a mother following the dismissal of an earlier paternity action ■on behalf of her child brought against the same alleged father?

2. Did the district court err in dismissing the paternity action on the ground that under the Parentage Act, a prior judgment determining the existence or nonexistence of paternity is determinative for all purposes?

ANALYSIS

I.

This court reviews de novo whether the doctrines of res judicata or collateral estoppel apply to a given set of facts. G.A.W., III v. D.M.W., 596 N.W.2d 284, 287 (Minn.App.1999), review denied (Minn. Sept. 28, 1999).

A. Res Judicata

Res judicata, or claim preclusion, operates as an absolute bar to a subsequent suit on the same cause of action, both as to claims actually litigated and as to claims or defenses that might have been litigated. Howe v. Nelson, 271 Minn. 296, 301, 135 N.W.2d 687, 691 (1965). Res judicata requires (1) a final judgment on the merits; (2) identical parties or parties in privity; and (3) that the second suit involves the same cause of action. Myers v. Price, 463 N.W.2d 773, 776 (Minn.App. 1990), review denied (Minn. Feb. 4, 1991).

The parties here agree that there was a final judgment on the merits of the paternity claim in the first suit and that the claims are identical, but appellant argues that in the context of a paternity action a mother and child are not in privity and have independent rights to bring suit. Whether persons are in privity must be determined by the facts of each case. Johnson v. Hunter, 447 N.W.2d 871, 874 (Minn.1989) (stating that family members are not necessarily in privity). In Johnson, the supreme court allowed a child to commence a second paternity action where she had been unrepresented in an earlier action. Id. (concluding that six-month-old infant unrepresented by independent counsel and without guardian ad litem was not party to or privy to paternity action). The supreme court held that a child’s specific interests in a determination of paternity outweigh the importance of finality and consistency of judgments. Id. at 875-76 (stating that child’s fundamental rights in establishing parental relationship include inheritance, medical support, causes of action, worker’s compensation dependence allowances, and veteran’s education benefits). Unless the child’s specific interests in establishing paternity are addressed on the merits of a paternity action, a separate cause of action to establish paternity will be available to the child. Id. at 877. But cf. Benson v. Hackbarth, 481 N.W.2d 375 (Minn.App.1992) (holding that minor child’s action for support from father who admitted paternity and paid lump sum to settle previous paternity suit was barred where child’s interests were adequately represented by mother and Commissioner of Public Welfare), review denied (Minn. April 27, 1992).

Appellant relies on Johnson for the assertion that it is entitled to bring a second paternity action against Graves on behalf of Garcia, despite a prior adjudication on the merits of an action brought by her child. But Johnson and its progeny hold only that where a child’s interests were not previously represented the child may bring a subsequent paternity action. See R.B. v. C.S., 536 N.W.2d 634, 638 (Minn.App.1995) (holding that child not represented in adjudication of her paternity may bring subsequent paternity action, and results of earlier adjudication are not determinative as to her); County of Dakota v. Hendrickson, 482 N.W.2d 516, 518 (Minn.App.1992) (holding that dismissal of paternity suit brought by mother and county was not res judicata as to child’s independent paternity action), review denied (Minn. May 15, 1992). The holding in Johnson does not support appellant’s assertion that a mother may bring a subsequent paternity action against the same alleged father when her child’s interests were represented in a previous action.

Here, as the district court concluded, the child’s interests have already been vindicated. V.A.G. was the plaintiff in the first action, she was represented by counsel and a guardian ad litem, she was given the opportunity to litigate her claim fully, and the court decided the claim on its merits.

The district court also concluded that Garcia was privy to the first cause of action. In its order, the court noted that Garcia testified and was cross-examined. In State v. Sax, 231 Minn. 1, 42 N.W.2d 680 (1950), the supreme court determined that a mother was privy to a paternity proceeding brought by the state even though she was not specifically named as a party. 231 Minn, at 7-9, 42 N.W.2d at 684-85. The court reasoned that a mother has a definite financial interest in a child-support award and that due process requires that she have an opportunity to be heard and to present evidence in support of her rights. Id. Here, Garcia had the assistance of legal counsel who represented her child in the prior action. She also attended and testified at the hearing. Garcia’s interests, therefore, were addressed in the prior adjudication, and she was in privity with her child for purposes of res judicata.

B. Collateral Estoppel

Collateral estoppel, or issue preclusion, bars relitigation of issues that were actually litigated or decided in a pri- or suit. Aufderhar v. Data Dispatch, Inc., 452 N.W.2d 648, 650 (Minn.1990). Collateral estoppel applies when: (1) the issue litigated is identical with one in a prior adjudication; (2) there was a final judgment on the merits; (3) the estopped party was a party or was in privity with a party to the prior litigation; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue. Id.

Appellant does not dispute that the first two elements are satisfied. But appellant argues that Garcia was not in privity with her child and should not be bound by the action brought on behalf of her child. We have already decided that Garcia was in privity with her child in the earlier action. And Garcia was given a full and fair opportunity to be heard on the issue of paternity in the first action. Garcia attended that hearing, testified, and was cross-examined. Therefore, collateral estoppel also bars relitigation of the paternity determination.

II.

The district court also dismissed appellant’s complaint on the ground that it was barred by the Parentage Act, Minn.Stat. §§ 257.51-.74 (1998), which governs determinations of paternity. Under the act, an adjudication “determining the existence or nonexistence of the [parent-and-child] relationship is determinative for all purposes.” Minn.Stat. § 257.66, subd. 1. There is an exception to this rule when a child is not represented in an adjudication of his or her paternity. R.B., 536 N.W.2d at 638 (reasoning that application of Parentage Act resulting in child being bound by paternity action to which he or she had no notice and no opportunity to be heard would result in unconstitutional deprivation of due process). But Minnesota courts have never held that an adjudication of paternity is not determinative merely because the child’s mother is not a named party in an earlier paternity action. Therefore, the prior adjudication determining the nonexistence of the parent-and-child relationship is determinative, and the Parentage Act operates as a bar to this claim.

DECISION

The district court did not err in holding that the doctrines of res judicata and collateral estoppel bar a paternity action brought on behalf of a mother following the dismissal of an earlier paternity action brought on behalf of her child against the same alleged father. The district court also did not err in holding that when a child is represented in an adjudication of her paternity, the adjudication is determinative for all purposes under Minn.Stat. § 257.66, subd. 1 (1998), and bars a subsequent paternity action against the same alleged father.

Affirmed.

      . We note that in previous decisions this court has used the term “putative father” to mean a person who is alleged to be the father of a child. See, e.g., R.B., 536 N.W.2d at 636; Kelly v. Cataldo, 488 N.W.2d 822, 826-27 (Minn.App.1992), review denied (Minn. Sept. 15, 1992). In 1997, however, the legislature enacted a definition of "putative father” in the adoption statutes that does not comport with our prior usage of this word. See 1997 Minn. Laws ch. 218, § 7; see also Minn.Stat. § 259.21, subd. 12 (1998) (defining "putative father” as a person who is not married to the child's mother before the child is born and who has not established paternity of the child in a court proceeding before the filing of a petition for the adoption of the child). Because this case does not involve an adoption proceeding, we use the term "alleged father.”


author: PETERSON, Judge

text:
    Donald H. OTIS, Jr., et al., Appellants, v. ANOKA-HENNEPIN SCHOOL DISTRICT NO. 11, Respondent.
    No. C5-99-2064.
    Court of Appeals of Minnesota.
    June 13, 2000.

      Thomas M. Fitzpatrick, Randall, Dehn & Goodrich, Anoka, for appellants.
    D. Scott Ballou, Louise A. Behrendt, Stich, Angelí, Kreidler, Brownson & Bal-lou, P.A., Minneapolis, for respondent.
    Considered and decided by TOUSSAINT, Chief Judge, PETERSON, Judge, and HUSPENI, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

PETERSON, Judge

Appellants Donald H. Otis and his wife sued respondent Anoka-Hennepin Independent School District No. 11 for negligence after Otis slipped on an icy sidewalk in front of a school and was injured. The school district was granted summary judgment based on the “mere slipperiness” rule. In this appeal from the summary judgment, Otis argues that the “mere slipperiness” rule does not apply because the ice on the sidewalk was caused by an artificial condition created by the school district. We affirm.

FACTS

Otis went to swim at a swimming pool in a school that is owned and operated by Anoka-Hennepin Independent School District No. 11. When Otis entered the school, he did not notice any snow or ice on the sidewalk leading from the school to the parking lot. When Otis left the school an hour and a half later, he slipped and fell on a one foot by three feet patch of thin, clear, and smooth ice that had formed on the sidewalk.

The sidewalk leading from the school to the parking lot separated into two sections. Between the sections, there was a landscaped area that contained a tree and four or five large boulders on a concrete base. Snow from the adjacent sidewalks was often blown or shoveled into the landscaped area.

Otis sued the school district, alleging that he suffered a severe and permanent injury as a result of the school district’s negligence and carelessness in the inspection, maintenance, and repair of the area where he fell and in its failure to maintain the area in a reasonably safe condition. Otis’s wife asserted a claim for loss of services, society, and companionship. The school district moved for summary judgment, arguing that under the common law “mere slipperiness” doctrine, it was not liable. Otis argued that the “mere slipperiness” rule did not apply because the ice on the sidewalk was caused by the artificial accumulation of snow that the school district created in the landscaped area. For purposes of the summary judgment motion and this appeal, the ¡ school district assumed that the ice ■ on the sidewalk was created when snow in the landscaped area melted, ran onto the sidewalk, and froze. The district court concluded that under the “mere slipperiness” doctrine, the school district was not liable for Otis’ injuries and granted the motion for summary judgment.

ISSUE

Is an accumulation of snow that is created by shoveling or blowing snow from a municipal sidewalk into an area adjacent to the sidewalk an artificial condition that makes a municipality liable for mere slipperiness that occurs when the accumulated snow melts, runs onto the sidewalk, and freezes?

ANALYSIS

On appeal from a summary judgment, this court must review the record to determine whether there are any genüine issues of material fact and whether the district court erred in applying the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn.1988). When reviewing a summary judgment, we must view the evidence in the light most favorable to the nonmoving party. Id.

The “Mere Slipperiness” Rule

Under the “mere slipperiness” rule, a

municipality is ‘not liable for mere slipperiness resulting from the natural accumulation [on streets and sidewalks] of ice and snow, however dangerous to pedestrians the situation thus created may be. But the rule has its exceptions and does not protect the municipality in the case where an accumulation of ice and snow is' negligently permitted to remain for such length of time as to cause the formation thereon by artificial means, of slippery and dangerous ridges, depressions, and irregularities to such an extent as to render the street or sidewalk dangerous and unsafe for use. Where conditions of that kind flow from the neglect of the municipality seasonably to remove accumulated ice and snow, there is liability.
The authorities differentiate between conditions arising from natural causes, causes over which the municipality has no control, illustrated by the falling of snow and sleet from the clouds, and those of artificial creation. If of artificial origin it is immaterial whether the result springs from acts or omissions of the officers and agents of the municipality, or from the acts of third persons. * * * It is quite clear that small patches of ice upon a sidewalk are far more treacherous and deceptive than rough and uneven frozen ice and snow covering the entire walk, and the case cannot be distinguished from those conditions, where negligence is shown. Both are created by artificial means, and not from natural causes.

Nichols v. Village of Buhl, 152 Minn. 494, 496-98, 193 N.W. 28, 29-30 (1922) (citations omitted).

In Nichols, village residents were permitted to take water in buckets from taps in the village hall. Id. at 496, 193 N.W. at 29. Some of the water spilled onto the sidewalk and froze in small patches. Id. After a woman 'slipped' on one of’ the patches of ice and was injured, she and her husband sued the village. Id. at 495-96, 193 N.W. at 29. The supreme court concluded that the village could be held liable. Id. at 498, 193 N.W. at 29-30.

Otis argues that because custodians blew or shoveled snow into the landscaped area, the resulting accumulation of snow was not a natural accumulation. Consequently, the ice' created when the shoveled snow melted and ran across the sidewalk was caused by an artificial condition, and, as in Nichols, the school district may be held liable.

The supreme court rejected a similar argument in Freeman v. Village of Hibbing, 169 Minn. 353, 211 N.W. 819 (1926), shortly after Nichols was decided. In Freeman, the plaintiff slipped and fell on a municipal sidewalk. Id. at 354, 211 N.W. at 819. The plaintiffs evidence showed that there “was slipperiness, some accumulation of snow, some roughness, but nothing of the definite and pronounced character necessary to sustain a finding of the village’s negligence.” Id. The case was dismissed after the plaintiffs testimony. Id. In an attempt to bring the case within Nichols, the plaintiff asked to amend her complaint “by alleging that ice and snow accumulated on the sidewalk in part through artificial means.” Id. at 355, 211 N.W. at 819-20. The plaintiffs allegation was that the village was negligent “in permitting ice to be formed and remain on the sidewalk caused by melting snows coming from [adjacent and nearby] property.” Id. The supreme court conceded that the amendment should have been allowed because the issue was voluntarily litigated, but, nevertheless, affirmed the dismissal because the court failed “to see that the evidence, taking both natural and artificial accumulations, show[ed] a negligent condition.” Id., 211 N.W. at 820. In other words, even though the condition was caused, in part, by an artificial accumulation, the supreme court concluded that the condition of the sidewalk was not severe enough to establish that the village was negligent. The artificial accumulation was not, by itself, sufficient to make the “mere slipperiness” rule inapplicable.

In Freeman, the court did not indicate how the artificial accumulation of snow occurred. But we conclude that if there are any circumstances where a municipality should not be liable for injuries caused when an artificial accumulation of snow melts, runs onto a sidewalk, and freezes, a municipality should not be liable when the artificial accumulation occurs because the municipality shoveled the sidewalk.

Our conclusion is consistent with the “mere slipperiness” rule and its exceptions. We recognize that an accumulation of shoveled snow is an artificial condition. But in the context of the “mere slipperiness” rule, an accumulation of shoveled snow is a necessary, and desired, artificial condition. An accumulation of shoveled snow is produced when a municipality clears its sidewalks, which is the very activity that the “mere slipperiness” rule and its exceptions are intended to promote. If a municipality can be held liable under an exception to the “mere slipperiness” rule because it failed to remove snow from a sidewalk, it would be incongruous to also hold the municipality liable because it removed snow from a sidewalk.

Our conclusion is also consistent with the supreme court’s holding in Doyle v. City of Roseville, 524 N.W.2d 461, 463-64 (Minn.1994), and with the rationale for the mere slipperiness rule, which the court restated in Doyle. In Doyle, a woman slipped and fell in an icy parking lot that served a municipal ice arena. Id. at 462. The supreme court held that

there is no basis for departing from the “mere slipperiness” rule. The plaintiff herself saw no ice in the parking lot when she arrived at about 7 p.m.; she said that she saw water from melting snow running in the parking lot. Three hours later the running water had turned to what the plaintiff describes as smooth glare ice. Whether the ice had formed 2 hours or 5 minutes before the plaintiffs unfortunate tumble is unknown, but it is readily apparent that it had not remained there long enough for the formation of ridges, hummocks, depressions or other irregularities on which municipal liability is founded.

Id. at 464.

The Doyle opinion does not indicate whether the water from melting snow running in the parking lot was from a natural accumulation of snow or from snow that had been shoveled or plowed into piles. But the court’s explanation of its holding suggests that this factual distinction had no bearing on the holding.

In Doyle, the court explained that the first application of the “mere slipperiness” rule in Minnesota occurred in Henkes v. City of Minneapolis, 42 Minn. 530, 44 N.W. 1026 (1890). Doyle, 524 N.W.2d at 463. The court further explained that, “Mr. Henkes did' not claim the sidewalk was obstructed but only that he had slipped on an icy sidewalk.” Doyle, 524 N.W.2d at 463. The court then quoted from Henkes, where Justice Mitchell set out the rule:

Upon such a state of facts, there can be no recovery against the city, unless it is the duty of such municipalities to keep their sidewalks clear of ice. In this climate such a thing would be a physical impossibility, and an attempt to do it would involve an amount of expense that would bankrupt any city. No court has ever held that reasonable care required an attempt to do any such thing. An unbroken line of authorities holds that mere slipperiness of a sidewalk by either ice or snow is not a defect for which cities are liable; that their obligation to keep their streets in a safe condition does not extend to the removal of ice which constitutes no other defect than slipperiness.

Id. (quoting Henkes, 42 Minn, at 532, 44 N.W. at 1027).

The sidewalk where Otis fell was not obstructed; it was only slippery. It is assumed that the slipperiness was caused when an accumulation of shoveled snow melted, ran onto the sidewalk and froze. But in Minnesota, it would be unrealistic and overly burdensome to hold that the “mere slipperiness” rule does not apply under these circumstances simply because the accumulation of shoveled snow is an artificial condition created by the school district. Such a rule would require municipalities to not only shovel snow from sidewalks but also to place the shoveled snow in a place where it could not run onto a sidewalk when it melts or to stand ready to remove any ice that forms on the sidewalk when the shoveled snow melts. Even if meeting this requirement were physically possible, any attempt to do so would be prohibitively expensive. Thus, there is no basis to conclude that the “mere slipperiness” rule is inapplicable simply because the slipperiness occurred when the accumulation of shoveled snow in the landscaped area melted, ran onto the sidewalk, and froze.

DECISION

Because the accumulation of snow that caused the ice on the sidewalk where Otis fell was created when the school district shoveled or blew snow from the sidewalk into the landscaped area and the ice was thin and smooth, the school district is not liable for the mere slipperiness of its sidewalk.

Affirmed.