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Senogles v. Carlson

Supreme Court of Minnesota

September 27, 2017

Amanda Joe Carlson Senogles, as parent and guardian of Shungmanitou Washtay Kihega, a minor, Appellant,
v.
Peter Carlson, Respondent.

         Court of Appeals Office of Appellate Courts

          Rhett A. McSweeney, David M. Langevin, Mark J. Brandenburger, McSweeney/Langevin LLC, Minneapolis, Minnesota, for appellant.

          Kevin F. Gray, Matthew W. Moehrle, Rajkowski Hansmeier, Ltd., Saint Cloud, Minnesota, for respondent.

          James 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 Lawyers Association.

         SYLLABUS

         1. A 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 alone.

         2. 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.

         Reversed and remanded.

          OPINION

          LILLEHAUG, JUSTICE.

         A 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.

         FACTS

         On 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.

         It was 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.[1] 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 river.

         After 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 basketball.[2]

         About 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.

         Senogles, 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.[3] 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.

         On the 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."[4] The parties agreed that Shawn never had formal swimming lessons.

         The 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.

         ANALYSIS

         This 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).

         We view 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) (citation omitted).

         A 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.

         Our law 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 safety.

         But the 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 section 343A).[5]

         Summarizing 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?[6]

         Whether 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.

         I.

         The 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.

         "Known" 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.

         We may 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 ...


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