Amanda Joe Carlson Senogles, as parent and guardian of Shungmanitou Washtay Kihega, a minor, Appellant,
Peter Carlson, Respondent.
of Appeals Office of Appellate Courts
A. McSweeney, David M. Langevin, Mark J. Brandenburger,
McSweeney/Langevin LLC, Minneapolis, Minnesota, for
F. Gray, Matthew W. Moehrle, Rajkowski Hansmeier, Ltd., Saint
Cloud, Minnesota, for respondent.
S. Ballentine, Matthew J. Barber, Schwebel, Goetz &
Sieben, P.A., Minneapolis, Minnesota, for amicus curiae
Minnesota Association for Justice.
William L. Davidson, Timothy O'Connor, João C.
Medeiros, Lind, Jensen, Sullivan & Peterson, P.A.,
Minneapolis, Minnesota, for amicus curiae Minnesota Defense
landowner is liable to a child guest for harm arising from a
particular activity or condition on the landowner's
property, except if the danger is known or obvious
to the child, unless the landowner should anticipate
harm to the child despite such knowledge or obviousness. In
this case, the court of appeals erred in holding as a matter
of law that it was obvious to a reasonable 4-year-old child
guest that it was dangerous to return to a river to swim
Whether or not the danger of returning to the river to swim
alone was obvious to a reasonable 4-year-old child guest, the
district court erred when it ruled as a matter of law that
the landowner should not have anticipated the harm. In this
case, the issue of foreseeability must be decided by a jury.
4-year-old boy, Shungmanitou Washtay Kihega
("Shawn"), wandered off during a family party on
respondent Peter Carlson's property. Shawn's
relatives found him face down in the Mississippi River. Shawn
was revived, but he suffered severe brain damage from the
near-drowning. Appellant Amanda Senogles, as parent and
guardian of Shawn, filed this lawsuit against Carlson,
alleging that, as the landowner, he violated his duty of care
to his invitee, Shawn. The district court granted
Carlson's motion for summary judgment and the court of
appeals affirmed. Because summary judgment should have been
denied, we reverse and remand.
August 23, 2013, Senogles left her children, Shawn (4 years
old), and Bear (3 years old), with her mother L.L. for the
weekend. The next day, L.L. took the children to a family
party held outdoors at Carlson's house in celebration of
a relative's birthday. Carlson was Shawn's and
Bear's great-uncle. Carlson's property featured about
76 feet of rocky shoreline on the Mississippi River.
a hot summer day. At the time of the party, the temperature
was approximately 90 degrees. After arriving at the party,
Shawn and several other children wanted to go swimming in the
river. Shawn first asked his great-aunt, K.A., to take him
swimming, but K.A. was busy "set[ting] up" for the
party. Shawn waited on the steps with L.L. for 5 to 10
minutes until his great-uncle Paul Carlson agreed to take
Shawn swimming. Another relative, K.R., asked several
other adults to go down to the river with her to watch the
children. In all, there were about six adults and six to nine
children in or near the river. Even though Carlson owned
several life jackets, he did not make them available to his
guests and nobody wore one, although there might have been
some foam flotation tubes known as "noodles" at the
about 20 minutes, everybody (including Shawn) left the river
because it was time to eat. K.A. told the children that
swimming was over, at least for now. The swimming party
dispersed. Shawn remained in his swimwear. Some children
played yard games and others, including Shawn, played
10 minutes after the children left the water, the family
realized that Shawn was missing. The family began searching
for Shawn and within 3 minutes found him lying face down in
the river. Family members were able to resuscitate Shawn, but
he suffered severe brain damage.
as Shawn's parent and guardian, sued Carlson, alleging
that Carlson breached his duty of care as a landowner to his
invited guest, because he failed to prevent Shawn's
access to the river, failed to supervise Shawn, failed to
have a safety plan for the child guests, and failed to warn
Shawn of the foreseeable dangers on the
property. Carlson moved for summary judgment,
arguing that he did not owe a duty to Shawn because the
danger of the river was obvious to a 4-year-old child, and,
in any event, the injury was not foreseeable.
motion for summary judgment, most of the facts were
undisputed with the exception of Shawn's prior swimming
experience. Senogles acknowledged that Shawn swam once at a
pool and another time at a water park, but asserted that he
"had no experience around lakes or rivers" before
the day in question. Carlson asserted that Shawn had
"experience around lakes and rivers before the
party." The parties agreed that Shawn never had
formal swimming lessons.
district court granted Carlson's motion for summary
judgment on the ground that the harm to Shawn was not
foreseeable to Carlson. The court of appeals affirmed the
grant of summary judgment on a different ground: that Carlson
was not liable because the danger was "obvious" to
Shawn. The court of appeals did not reach the issue of the
foreseeability of the danger.
case involves an appeal from an order granting summary
judgment in favor of the landowner on a claim of negligence.
Summary judgment is appropriate when there is no genuine
issue of material fact and a party is entitled to judgment as
a matter of law. Minn. R. Civ. P. 56.03. "We review a
district court's grant of summary judgment to determine
whether there are any genuine issues of material fact and
whether the court erred in its application of the law."
Louis v. Louis, 636 N.W.2d 314, 318 (Minn. 2001).
the evidence in the light most favorable to the party against
whom summary judgment was granted. Lubbers v.
Anderson, 539 N.W.2d 398, 401 (Minn. 1995). Any doubt
regarding the existence of a material fact is resolved in
favor of that party. Rathbun v. W.T. Grant Co., 219
N.W.2d 641, 646 (Minn. 1974); see also Rochester City
Lines, Co. v. City of Rochester, 868 N.W.2d 655, 661
(Minn. 2015) (holding that the evidence is viewed "in
the light most favorable to the nonmoving party" and all
doubts are resolved against the moving party). Similarly,
"all factual inferences must be drawn against the movant
for summary judgment." Sauter v. Sauter, 70
N.W.2d 351, 353 (Minn. 1955). We must not "weigh
facts." Stringer v. Minn. Vikings Football Club,
LLC, 705 N.W.2d 746, 754 (Minn. 2005). Summary judgment
is a "blunt instrument" that should not be granted
"when reasonable persons might draw different
conclusions from the evidence presented." Osborne v.
Twin Town Bowl, Inc., 749 N.W.2d 367, 371 (Minn. 2008)
district court may grant summary judgment in favor of a
defendant in a negligence action "when the record
reflects a complete lack of proof" on any one of these
four elements: (1) the existence of a duty of care, (2) a
breach of that duty, (3) an injury, and (4) the breach of
duty being the proximate cause of the injury. Louis,
636 N.W.2d at 318 (citing Lubbers, 539 N.W.2d at
401). In this case, the district court granted summary
judgment in favor of Carlson on the first element, the
existence of a duty of care.
regarding a landowner's duty of care is well-established.
A "landowner generally has a continuing duty to use
reasonable care for the safety of all entrants."
Id. at 319 (citing Baber v. Dill, 531
N.W.2d 493, 496 (Minn. 1995)). "Entrants" refers to
both invitees and licensees. See Louis, 636 N.W.2d
at 318-19; Peterson v. Balach, 199 N.W.2d 639');">199 N.W.2d 639, 647
(Minn. 1972). In this case, the parties agree that Shawn, an
invited guest, was an entrant. Thus, Carlson generally had a
continuing duty to use reasonable care for Shawn's
landowner's duty of care to entrants regarding a
particular danger on the property is not unlimited.
Restatement (Second) of Torts § 343A (Am. Law Inst.
1965), which we have adopted, carves out an exception to the
duty, and then carves out an exception to the exception. A
landowner is not liable to invitees when the "danger is
known or obvious to them, unless the possessor should
anticipate the harm despite such knowledge or
obviousness." Peterson v. W.T. Rawleigh Co.,
144 N.W.2d 555, 557-58 (Minn. 1966) (citation omitted)
(internal quotation marks omitted) (adopting and applying
our law and applying it to this case: Carlson, the landowner,
is liable to Shawn, the guest, for harm to Shawn arising from
an activity or condition on Carlson's property,
except if the danger was known or obvious to Shawn,
unless Carlson should have anticipated the harm to
Shawn. In other words, was the danger of returning to the
Mississippi River to swim alone known or obvious to
Carlson's 4-year-old guest, and, even if it was, should
Carlson have anticipated the harm to Shawn?
Carlson should have anticipated the harm is an issue of
foreseeability. Whether a risk was foreseeable depends on
"whether the specific danger was objectively reasonable
to expect, not simply whether it was within the realm of any
conceivable possibility." Whiteford ex rel.
Whiteford v. Yamaha Motor Corp., 582 N.W.2d 916, 918
(Minn. 1998). The foreseeability of danger "depends
heavily on the facts and circumstances of each case."
Doe 169 v. Brandon, 845 N.W.2d 174, 179 (Minn.
2014). As we reaffirmed recently, when the issue of
foreseeability is clear, the court, as a matter of law,
should decide it, but in close cases, the issue of
foreseeability is for the jury. Montemayor v. Sebright
Prods., Inc., 898 N.W.2d 623');">898 N.W.2d 623, 629 (Minn. 2017); see
also Domagala v. Rolland, 805 N.W.2d 14');">805 N.W.2d 14, 27, 27 n.3
(Minn. 2011); Bjerke v. Johnson, 742 N.W.2d 660,
667-68 (Minn. 2007) (citing Whiteford, 582 N.W.2d at
918); Lundgren v. Fultz, 354 N.W.2d 25, 28 (Minn.
1984); Ill. Farmers Ins. Co. v. Tapemark Co., 273
N.W.2d 630, 636-38 (Minn. 1978) (holding that the issue of
foreseeability should be submitted to the jury where
"reasonable persons might differ"). As
Montemayor emphasized, the issue of foreseeability
is "close" and must go to the jury when the
"evidence presents an explicit dispute of material
fact" or when a reasonable person "might draw
different conclusions from the evidence." 898
N.W.2d at 629 n.3.
threshold question in this case is whether Carlson has shown
that he is not liable because the danger of the activity or
condition on the land was "known or obvious" to
Shawn. See Louis, 636 N.W.2d at 322 (remanding to
the district court for consideration of whether the harm to
the plaintiff "was either known to him or one that he
reasonably should have been expected to know"); Ill.
Farmers, 273 N.W.2d at 634, 636-38 (remanding to the
district court for consideration of whether the allegedly
negligent party "knew or should have known" of the
dangerous circumstances). If the parties raise a genuine
issue of material fact regarding whether an individual
"knew or should have known" of the danger, summary
judgment should be denied. Ill. Farmers, 273 N.W.2d
at 634, 636-38.
is a subjective test that depends upon the entrant's
actual "appreciation of the danger." Restatement
(Second) of Torts § 343A cmt. b (Am. Law Inst. 1965).
"Thus the condition or activity must not only be known
to exist, but it must also be recognized that it is
dangerous, and the probability and gravity of the threatened
harm must be appreciated." Id.
proceed quickly past the "known" test. Carlson did
not move for summary judgment on that theory. The district
court made no finding on whether Shawn actually knew
of the danger of returning to the river to swim alone. And
the court of appeals' holding ...