Jessica Mattson v. City of Rushford, Minnowa Construction, Inc., State of Minnesota Department of Transportation, Edwards and Kelcey, Inc., Minnowa Construction, Inc., Third Party v. Eric Kaiser d/b/a Kaiser Concrete, Third Party

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1018

Jessica Mattson,
Appellant,

vs.

City of Rushford,
Respondent,

Minnowa Construction, Inc.,
Respondent,

State of Minnesota Department of Transportation,
Respondent,

Edwards and Kelcey, Inc., et al.,
Defendants,

Minnowa Construction, Inc.,
Third Party Plaintiff,

vs.

Eric Kaiser d/b/a Kaiser Concrete,
Third Party Defendant.

Filed April 18, 2016
Affirmed
Connolly, Judge

Fillmore County District Court
File No. 23-CV-13-514

Robert M. Speeter, Patrick V. Johnson, Emily Johnson Streier, Speeter & Johnson,
Minneapolis, Minnesota (for appellant)
Jason J. Kuboushek, Iverson Reuvers Condon, Bloomington, Minnesota (for respondent
City of Rushford)

Lori Swanson, Attorney General, Kathryn A. Fodness, Assistant Attorney General,
St. Paul, Minnesota (for respondent Minnesota Department of Transportation)

Joshua I. Welle, Welle Law PC, Bloomington, Minnesota (for respondent Minnowa
Construction Inc.)

Emily B. Uhl, Neal Robinson, The Cincinnati Insurance Company, Coon Rapids,
Minnesota (for respondent Eric Kaiser d/b/a Kaiser Concrete)

Considered and decided by Connolly, Presiding Judge; Stauber, Judge; and Reilly,

Judge.

UNPUBLISHED OPINION

CONNOLLY, Judge

Appellant challenges the summary-judgment dismissal of her negligence claims

against respondents City of Rushford (Rushford), Minnesota State Department of

Transportation (MNDOT), and Minnowa Construction, Inc. (Minnowa), arising out of

injuries suffered after falling into a culvert while bicycling. Appellant asserts that the

district court improperly applied summary-judgment standards and erred by determining

that (1) MNDOT and Rushford owed no duty to maintain the sidewalk and culvert;

(2) MNDOT and Rushford were relieved of any liability by appellant’s contributory

negligence; (3) MNDOT and Rushford are protected by statutory, (vicarious) official, and

recreational immunity; (4) Minnowa was not negligent in the design and construction of

the sidewalk; and (5) open and obvious conditions around the sidewalk precluded recovery.

Appellant also asserts that respondents were engaged in a joint enterprise and thus the

2
negligence of one should be imputed to the others. We affirm. In a cross-appeal,

respondent Minnowa challenges the district court’s grant of summary judgment to Eric

Kaiser d/b/a Kaiser Concrete (Kaiser) on its contribution and indemnity claims. Because

there are no material facts in dispute and the district court correctly applied the law, we

affirm that decision as well.

FACTS

Appellant Jessica Joy Mattson was severely injured in a bicycle accident, which

occurred when she rode her bicycle over a bridge and off a sidewalk connecting the State

Highway 43 Bridge to Creekside Park, Rushford High School athletic fields, and the Root

River bike trail, landing in an unseen culvert. The day of the accident she was on a bike

ride with her fiancé and decided she was tired and wanted to go home early. Appellant

took a route she had driven before, but had never biked. As she reached the top of the

bridge, before beginning the downward slope, appellant noticed road construction ahead

and made a decision to turn right into Creekside Park. Crossing the bridge on the sidewalk

on the right hand side of the street, appellant began to coast as the bridge sloped downhill.

At this point, appellant agrees that there were no signs indicating that she was on a

bike trail and that she knew she was no longer on the Root River bike trail. At the base of

the bridge, appellant noticed that the sidewalk turned sharply to the right at a 90-degree

angle. Rather than attempting to stay on the sidewalk, which she thought would be harder

for her to do, appellant thought that she could “just ride over into some grass,” onto a paved

parking lot, and then onto a gravel road that would take her home. She believed that it

would be “less distance,” creating a shorter route, and easier than trying to make the hard

3
corner, hitting her brakes, or slowing down hard.1 As she approached the corner, she saw

that instead of a ride through the grass, her planned route led to a drop-off into a culvert,

and rocks. She then braked in a split-second decision, but she was unable to avoid the

drop-off. She flipped over the front of the bicycle and onto the rocks. Appellant has since

undergone numerous surgeries, suffers from severe chronic pain, and has permanent

injuries that have prevented her from working as a result of the accident. No one disputes

the severity of her injuries.

The sidewalk and culvert upon which appellant was injured was part of the MNDOT

Highway 43 Bridge Construction Project (Project), which included the construction of a

bridge over Rush Creek in Rushford, Minnesota. Edwards and Kelcey Inc. (E & K) was

contracted to design the Project, Minnowa was hired as the general contractor, and

Rushford owned the land needed as a right-of-way. Rushford requested that MNDOT

construct a sidewalk on the east side of the bridge. The purpose of the sidewalk on the east

side of the bridge was to provide a “direct pedestrian route from the high school to the City

Park and school athletic fields (all located on the east side of the highway) without crossing

TH 43.” The bridge is right next to a city park and tennis courts and is used for recreational

and pedestrian activities.

As required by the federal Department of Transportation Act of 1966, MNDOT

prepared a “Programmatic Section 4(f) Evaluation” (4(f) Evaluation) of the impact of the

1
However, there is no evidence that she lost control of the bike or was physically unable
to make the right turn.

4
new bridge upon Creekside Park. The 4(f) Evaluation stated that replacement of the bridge

was preferred, in part, because

Access for pedestrians, bicycles and other forms of non-
motorized transportation would be improved due to the
construction of an 8-foot wide walkway on each side of the
bridge . . . . The addition of the sidewalk on the east side of the
bridge will improve the safety of the students walking or biking
between the two.

The access to the park as designed by E & K was a straight sidewalk coming from the

bridge, “then tak[ing] a slight north and east direction and proceed[ing] to go down the

embankment from the bridge elevation down into the park” at a five percent slope. 2 At

some point in the construction process, the original E & K designs were altered and the

sidewalk was extended to Creekside Park parking lot by shortening it, and from the

shortened end, turning the sidewalk nearly 90 degrees to the right, extending the sidewalk

to a parking lot by the tennis courts. While the original project plans did not refer to this

alteration, the as-built drawings created after the completion of the Project note: “Grading

bridge 23022, sidewalk as designed to end in ditch bottom. Place[d] 2 25-foot 57 span

culverts in ditch and built sidewalk over culverts.” The as-built drawings were signed and

approved by Eric Breitsprecher, MNDOT’s head inspector for the Project and by Mark

Anderson, MNDOT’s head engineer for the Project.

During the construction of the Project, MNDOT employed engineers, who were

responsible for ensuring that the project is built according to the plans and specifications,

2
The slope on the sidewalk plans was five percent and the maximum recommended is as
high as 8.33 percent.

5
and inspectors, who were responsible for day-to-day inspection of the contractor’s work

for conformance with the contract documents. Several documents were incorporated into

the contract for the Project, including the MNDOT Standard Specifications for

Construction (Standard Specifications). The Standard Specifications indicate that the

MNDOT engineer, Mark Anderson, “has authority to administer the Contract, rule on

apparent discrepancies, fulfill intentions, and allow for construction needs in the

performance and completion of the work . . . . The engineer will decide all discretionary

matters as they arise.” Furthermore, section 1402 of the Standard Specifications provides

that MNDOT may alter the details of construction as necessary for proper completion of

the Project and as desired for reasons of public interest, at any time during construction.

Following a hearing on all of respondents’ motions for summary judgment, the

district court granted summary judgment against appellant as to each respondent. In a

separate order, the district court granted summary judgment to Kaiser on Minnowa’s claim

for contribution and indemnity.

DECISION

“We review a district court’s summary judgment decision de novo. In doing so, we

determine whether the district court properly applied the law and whether there are genuine

issues of material fact that preclude summary judgment.” Riverview Muir Doran, LLC v.

JADT Dev. Grp., LLC, 790 N.W.2d 167, 170 (Minn. 2010) (citation omitted). “A motion

for summary judgment shall be granted when the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there

is no genuine issue of material fact and that either party is entitled to a judgment as a matter

6
of law. On appeal, the reviewing court must view the evidence in the light most favorable

to the party against whom judgment was granted.” Fabio v. Bellomo, 504 N.W.2d 758,

761 (Minn. 1993) (citation omitted); see Minn. R. Civ. P. 56.03. In opposing a motion for

summary judgment, general assertions are not enough to create a genuine issue of material

fact. Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845, 848 (Minn. 1995). An

award of summary judgment will be affirmed if it can be sustained on any ground. Winkler

v. Magnuson, 539 N.W.2d 821, 828 (Minn. App. 1995), review denied (Minn. Feb. 13,

1996).

Appellant alleges that the district court applied the incorrect standard for summary

judgment. In granting summary judgment, the district court stated:

A motion for summary judgement may not be opposed simply
based on the pleadings, mere denials, mere allegations, or by
postulating evidence that might be developed at trial. Instead,
a genuine issue of material fact must be established by
“substantial evidence”, meaning that there must be evidence on
which the jury could reasonably find for the nonmoving party.

(quotations omitted). Appellant argues that the district court erred because it “failed to

engage in further discussion on the term ‘substantial evidence’ in its orders, and did not

consider any of the more recent cases interpreting ‘substantial evidence.’” Our supreme

court has ruled that “[a] party need not show substantial evidence to withstand summary

judgment. Instead, summary judgment is inappropriate if the nonmoving party has the

burden of proof on an issue and presents sufficient evidence to permit reasonable persons

to draw different conclusions.” Schroeder v. St. Louis County, 708 N.W.2d 497, 507

(Minn. 2006). To prevail on appeal, a party must show both error and prejudice resulting

7
from the error. Midway Ctr. Assocs. v. Midway Ctr. Inc., 306 Minn. 352, 356, 237 N.W.2d

76, 78 (1975); see Bloom v. Hydrotherm, Inc., 499 N.W.2d 842, 845 (Minn. App. 1993)

(stating that the appellant bears the burden of demonstrating that error is prejudicial),

review denied (Minn. June 28, 1993). Because we review summary judgment de novo, we

review the record anew to determine if appellant has presented sufficient evidence to permit

reasonable persons to draw different conclusions. For the reasons outlined below, we

conclude that she has not.

I. Did the district court err in finding that appellant failed to establish a prima
facie claim of negligent maintenance against MNDOT?

Appellant made allegations of negligence against both MNDOT and Rushford. The

essential elements of a negligence claim are: (1) the existence of a duty of care; (2) a breach

of that duty; (3) an injury was sustained; and (4) breach of the duty was the proximate cause

of the injury. Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995). The district court

concluded that neither MNDOT nor Rushford owed a duty of care to appellant. The district

court reasoned that “[appellant’s] injury occurred entirely within [MNDOT’s] right-of-way

and that [Rushford] had no role in designing, constructing or repairing of the sidewalk or

culverts.”

Appellant made three separate and distinct claims of negligence: (1) the sidewalk

and culverts were negligently maintained; (2) Rushford and MNDOT breached a duty to

warn her of hidden and unsafe conditions; and (3) the sidewalk and culverts were

negligently designed.

8
 There is no evidence in the record that the sidewalk and culverts were negligently

maintained. In her brief, to support this claim, appellant argues that the culvert was a

hidden danger because of “tall grass” but cites no facts in the record to support the

allegation that there was tall grass. Neither appellant nor appellant’s expert testified to the

presence of tall grass around the culvert. Furthermore, appellant testified at her deposition

that she intended to ride her bike through the grass, rather than make the turn on the

sidewalk, indicating that the grass was not maintained too high for biking. There is also

no evidence in the record indicating that the sidewalk was crumbling, that there were

bumps or potholes that needed attention, or that there was snow on the ground. Because

there is no evidence in the record that the sidewalk and culvert were negligently

maintained, the district court did not err in dismissing this negligent-maintenance claim on

summary judgment.

Additionally, as discussed below, we conclude that because of statutory immunity,

vicarious official immunity, and recreational use immunity, as a matter of law, MNDOT

and Rushford cannot be found to have breached a duty to warn or to have negligently

designed the sidewalk. 3

II. Did the district court err in determining that MNDOT decisions were policy-
making decisions, entitling them to statutory immunity?

“Whether government entities and public officials are protected by statutory

immunity and official immunity is a legal question which this court reviews de novo.”

3
Because we hold that both MNDOT and Rushford are protected by immunity, we decline
to reach the issues of whether or not appellant is contributorily negligent or if the claimed
design defect was open and obvious in regard to respondents’ duty to warn of danger.

9
Johnson v. State, 553 N.W.2d 40, 45 (Minn. 1996). Appellant alleges that the district court

erred in determining that MNDOT was entitled to statutory immunity. As a general rule,

[t]he state will pay compensation for injury to or loss of
property or personal injury . . . caused by an act or omission of
an employee of the state while acting within the scope of office
or employment . . . who is acting in good faith . . . under
circumstances where the state, if a private person, would be
liable to the claimant.

Minn. Stat. § 3.736, subd. 1 (2014). However, the state and its employees are not liable

for a loss “caused by the performance or failure to perform a discretionary duty, whether

or not the discretion is abused.” Minn. Stat. § 3.736, subd. 3(b) (2014). Although “almost

every act involves some measure of discretion . . . undoubtedly not every act of government

is entitled to discretionary immunity.” Nusbaum v. Cty. of Blue Earth, 422 N.W.2d 713,

719 (Minn. 1988) (quoting Cairl v. State, 323 N.W.2d 20, 23 (Minn. 1982)). Courts draw

a distinction between conduct at a planning level, which is protected, and conduct at an

operational level which is unprotected. Id. Statutory immunity protects governmental

actions or decisions of a policy-making nature involving social, political, or economic

considerations and does not immunize “professional or scientific” decisions. Id. at 722.

The burden of proof is upon the state or local governmental unit to establish the application

of immunity. Id. at 722 n.6.

To begin our discretionary function analysis, we must first identify the precise

government conduct being challenged. See id. at 722. We identify the precise government

conduct being challenged as the decision to not place warning signs and the decision to

amend the original E & K design and implement the final as-built changes.

10
 A. Statutory Immunity as Applied to Warning Signs

The placement of warning signs is generally a policy-based, discretionary function

entitled to statutory immunity. Steinke v. City of Andover, 525 N.W.2d 173, 175-76 (Minn.

1994) (“We have recognized that the government’s initial decision, whether to place signs

warning the public of potential hazards, is protected as a discretionary function because it

involves the consideration of several policy factors.”). However “[w]arning of hazards by

placing signs is not inherently either discretionary or operational; classification depends on

the factors considered in making the decision.” Minder v. Anoka County, 677 N.W.2d 479,

485 (Minn. App. 2004). “Further, in order for statutory immunity to protect a

government’s warning sign decision, an actual decision has to have been made in light of

a protected policy.” Id. at 486.

MNDOT states that its policy for projects involving sidewalk construction within

its right-of-way is based on “the fact that the affected local unit of government is in the

best position to routinely assess the need for such signs, the use of the sidewalk in question,

and the type of sign, if any, that would be appropriate.” Jeffrey L. Vlaminck, district

engineer for MNDOT in the district where the accident occurred, submitted an affidavit

stating that this policy is based on the fact that the sidewalk is created for the benefit and

at the request of the municipality, the limitations on MNDOT’s resources, and the fact that

the municipality is able to best gauge its needs. These reasons are policy-based reasons

regarding social and economic decisions and thus are entitled to statutory immunity.

For its part, Rushford fails to enumerate a policy for the placement of signs, focusing

primarily on the policy regarding maintenance of the sidewalk, giving MNDOT a right-of-

11
way over the sidewalk and culverts. However, Jeff Copley, Rushford public works director

at the time the bridge was built, testified that the city made a decision after 2007 because:

[they] didn’t feel that having to put signs up other than the bike
trail to designate where that was necessary because there was
a city ordinance that had been published in the paper, too, that
you couldn’t ride on the sidewalks. Periodically they put it
even on the website, to tell people you cannot ride on the
sidewalks.

This then was a policy-based decision by Rushford to avoid greater spending by only

placing signs where bicycle riding was allowed, rather than placing bicycle warning signs

everywhere that bicycle riding was not allowed, and could potentially be a danger. Placing

warning signs directed at bicycle users may have implied that the sidewalk was excluded

from the ordinance prohibiting bicycle riding on sidewalks. These are economic and

policy-based reasons for not placing warning signs and this entitles the city of Rushford to

statutory immunity from the duty-to-warn negligence claim.

B. Statutory Immunity as Applied to On-Site Changes

In his affidavit, Mark Anderson stated:

[W]hen on-site changes are made to plans, it is up to the project
engineer, in collaboration with the inspectors on site, to
evaluate the nature of the changes, the safety of the proposed
changes, the economic feasibility of the changes in light of the
amount budgeted for the project and the additional cost of the
changes (including labor, materials, and other costs), project
aesthetics, what impact the changes will have on timelines for
project completion, usability, whether the changes will create
additional administrative burdens, whether the changes can be
accomplished by on-site planning or whether the proposed
changes need to be submitted to either a MNDOT design
engineer or a private design engineer, and whether the changes
to the project unjustifiably change the general purpose of the
project.

12
Appellant counters that MNDOT merely asserts that the plan change was a result of policy

considerations typically used in minor construction changes.

If MNDOT employees were “only using [their] professional judgment in

implementing [the state’s] policy” then those actions are not immune from liability. Angell

v. Hennepin County Regional Rail Authority, 578 N.W.2d 343, 347-48 (Minn. 1998)

(“When the government implements established policy it is generally not immune from

liability.”). However, the state’s policy allows the project engineers in charge of the

construction to make on-site changes to the construction plans drafted by E & K. Thomas

Parker, the project leader from E & K, testified at his deposition that:

the only discussion [Parker and the State] had on [long-term
thoughts on sidewalk and bicycle usage] was that there was no
long-term plan established for the park. It was a future event
that would be done by others at a later date, so that’s why we
brought the sidewalk down into the park and terminated it
where we did.

Further, Parker testified at his deposition, “we simply wanted to get a sidewalk from the

bridge or the bridge approach down into the park. We didn’t know what was going to

happen after that.” As the project was originally designed, “if you were going to the park

on a wheelchair, you would end up on the bottom flat part of a ditch” and you would have

to climb the hill of a grassy ditch in order to get to the park. This testimony establishes

that it was the intent of MNDOT’s policy to allow its engineers to make discretionary on-

site changes to the sidewalk and to determine how best to connect the sidewalk from the

bridge to the park. At some point “in the future” someone else would complete the

sidewalk system and tie it into the trail system.

13
 Although appellant alleges that it is unclear who was responsible for the changes in

the sidewalk plans, that it could have been any one of respondents, or that the respondents

were working in concert to amend the designs, it is undisputed that MNDOT, and

specifically Mark Anderson was responsible for the changes in the sidewalk plans from the

E & K originals to the final as-built plan. Because MNDOT’s engineers and inspectors

would have had to exercise discretion and apply policy considerations concerning the

nature of the changes, safety of the changes and economic feasibility, the district court did

not err in determining that MNDOT is entitled to statutory immunity.

III. Did the district court err in finding that vicarious official immunity bars
appellant’s claim against MNDOT?

The grant of vicarious official immunity to a public employer is based on the nature

of an employee’s immune conduct, whether or not the employee was actually named as a

defendant in a lawsuit. Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 316-17 (Minn.

1998). The court applies vicarious official immunity when failure to grant it would focus

stifling attention on an official’s performance to the serious detriment of that performance.

Anderson v. Anoka Hennepin Ind. School Dist. 11, 678 N.W.2d 651, 664 (Minn. 2004)

(quotations omitted). In determining vicarious official immunity, this court must first

determine if official immunity applies. Wiederholt, 581 N.W.2d at 316-17.

Official immunity is a common-law doctrine which, in the absence of a willful or

malicious wrong, protects a public official who is “charged by law with duties which call

for the exercise of his judgment or discretion.” Olson v. Ramsey County 509 N.W.2d 368,

371 (Minn. 1993). “‘Discretion’ has a broader meaning in the context of official immunity

14
than in the context of statutory immunity.” In re Alexandria Acc. of Feb. 8, 1994, 561

N.W.2d 543, 548-49 (Minn. App. 1997). Official immunity involves judgment exercised

at the operational level rather than the policymaking level, and it requires something more

than ministerial duties. Olson, 509 N.W.2d at 371. “Duties are ministerial when they are

certain and involve merely the execution of a specific duty arising from fixed and

designated facts.” Id. (quotation omitted).

Appellant alleges that MNDOT negligently designed the sidewalk and culvert,

failed to warn of the slope, turn, and culvert, and failed to provide barriers to the culvert.

The decision to alter the original E & K design involved discretion. The MNDOT

engineers had to decide where to turn the sidewalk, whether to increase the cost of the

project by building a barrier to the culvert, whether to make the turn at a 90-degree angle

or to gradually curve the sidewalk, and whether warnings were necessary or who was in

the best position to issue them. These decisions are more than the execution of specific

duties arising from fixed and designated facts. As a result, Anderson was entitled to official

immunity.

Because Anderson is entitled to official immunity, MNDOT is entitled to vicarious

official immunity if the failure to grant vicarious official immunity would focus stifling

attention on his performance to the serious detriment of that performance. Anderson, 678

N.W.2d at 664. “This standard grants vicarious official immunity in situations where

officials’ performance would be hindered as a result of the officials second-guessing

themselves when making decisions.” Id. Our concern that project engineers all over the

state of Minnesota, making discretionary decisions on a day-to-day basis, would be

15
hindered in making these decisions because of the fear of liability for accidents occurring

years later is sufficient to grant vicarious official immunity. For this reason, we conclude

that MNDOT is entitled to vicarious official immunity for the discretionary decisions

involved in modifying the design of the sidewalk.

IV. Did the district court err in finding that appellant did not raise a viable
negligence claim against Rushford?

The district court held that Rushford did not owe a duty to appellant because

MNDOT owned the right-of-way for the entire as-built sidewalk and the culverts in

question and Rushford did not have a maintenance agreement that would subject it to

responsibility for maintaining the sidewalk or culverts. We conclude that the district court

erred in its conclusion that there was no maintenance agreement, but because we find that

Rushford did not owe appellant a duty of care, we conclude the error was harmless.

Absent an express agreement assuming responsibility for maintaining state-owned

property, the city is not liable for negligence in that maintenance. Huver by Huver v. Opatz,

392 N.W.2d 237, 240 (Minn. 1986) (citing Johnson v. City of Thief River Falls, 282 Minn.

281, 286-87, 164 N.W.2d 71, 74 (1969)). Implicit in that reasoning is the presumption that

if the city had expressly contracted with the state to assume the maintenance of the

property, the city would also have been held to have assumed any liability for negligence

in performing that duty. Id. It is undisputed that Rushford entered into an agreement

regarding snow removal and lawn maintenance along the sidewalk. It is also undisputed

that appellant’s injury occurred in the culvert which, on June 24, 2011, was within the

state’s right of way.

16
 Under Minnesota premises liability laws, a possessor of land has a duty to exercise

reasonable care for the safety of all persons lawfully entitled to enter the premises.

Peterson v. Balach, 199 N.W.2d 639, 647 (Minn. 1972). This non-delegable duty requires,

“an owner and possessor of land . . . to . . . maintain his property in a reasonably safe

condition for visitors on the premises.” Niemann v. Northwestern College, 81 Minn. 42,

389 N.W.2d 260, 261-62 (Minn. App. 1986). “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.” Rinn v. Minnesota State Agr. Soc., 611 N.W.2d 361, 365 (Minn. App.

2000). A person who enters a property also has a duty to exercise reasonable care for his

or her own safety. Louis v. Louis, 636 N.W.2d 314, 319 (Minn. 2001). When state-owned

property is the subject of a negligence suit, courts have held that the local municipality

owes a duty only to the extent and terms it has agreed to with the state. See Johnson, 282

Minn. at 286, 164 N.W.2d at 74 (holding that, as to a municipal street which is part of the

state trunk highway system, a municipality is relieved from responsibilities and duties

plainly pertained to the responsibilities for the maintenance of such streets “except only as

a municipality is reinvested with such responsibility by voluntarily entering into a

maintenance agreement with the state.”).

Petsch v. State, cited by Rushford, is persuasive. In Petsch, the plaintiff left the

sidewalk and stood in a grassy area while waiting to cross State Trunk Highway 63 in

17
Rochester. Petsch v. State, 2010 WL 4721328, *1 (Minn. App. Nov. 23, 2010). 4 The

plaintiff stepped into a hole near a culvert, fell into the ditch and was injured. Id. In the

ensuing negligence suit against MNDOT, the city of Rochester, and an adjacent liquor

store, this court held that the area over which the plaintiff took her backward steps to the

place she fell was entirely within the state’s right-of-way. Id. at *3. “Because the city

agreed to maintain only the sidewalk traversing the state’s right-of-way” the city was

treated as an abutting landowner, and did not owe any duty beyond the agreed-to

maintenance of “the sidewalk itself.” Id.

Here it is undisputed that appellant’s injury occurred in the culvert within

MNDOT’s right of way. Rushford was not involved in construction, funding, or planning

of the sidewalk extension and culverts. Upon completion of the project, MNDOT was

solely responsible for determining whether all construction standards were met. MNDOT,

not Rushford, was specifically responsible for posting warning signs within its right-of-

way and Rushford could not have posted a sign or protective barrier without MNDOT’s

permission. However, the evidence shows that Rushford had an informal agreement with

MNDOT to remove snow and mow along the sidewalk. This agreement does not create a

duty of care for Rushford in this case. As we have stated previously, no facts in the record

suggest snow or tall grass existed on the sidewalk. Therefore, because the crux of

appellant’s claim concerns the placement of the culverts, not the quality of the sidewalk

4
We note that unpublished cases are not binding authority, but may be persuasive. City of
St. Paul v. Eldredge, 788 N.W.2d 522, 526-27 (Minn. App. 2010), aff’d, 800 N.W.2d 643
(Minn. 2011).

18
itself, the injuries clearly occurred in MNDOT’s right-of-way and Rushford did not owe a

duty of care to appellant.

Because the incident did not occur as a result of a dangerous condition in the

sidewalk (grass, cracks, snow, potholes, etc.), Rushford did not have a duty to appellant.

Appellant’s injuries were a result of a hazard entirely within MNDOT’s right-of-way.

Additionally, we conclude that appellant has failed to allege any material facts that

indicate that Rushford took part in the design of the sidewalk and culvert.5 Appellant’s

assertion that Rushford has a duty to safely design a sidewalk on a right-of-way that

Rushford does not own based on the 4(f) report indicating that Rushford’s policy was to

provide safe bicycle and pedestrian access from the bridge to the park is not enough to

impose liability against Rushford. The district court did not err in granting summary

judgment on the negligent-design claim against Rushford.

V. Did the district court err in finding that Rushford was entitled to recreational-
use immunity?

Appellant argues that the district court erred in holding that recreational-use

immunity applies to Rushford because, if the state owned the land where she was injured,

as the district court held, Rushford cannot claim recreational immunity because the injury

had to occur in the park for recreational immunity to apply. Rushford did not have to own

the land in order to be protected by the recreational-use immunity. See Kastner v. Star

5
Because we hold that Rushford owed no duty to appellant, we decline to reach Rushford’s
defenses under the public-duty doctrine or Rushford’s claims of statutory immunity.

19
Trails Ass’n, 646 N.W.2d 235, 238 n.5 (Minn. 2002). That a sidewalk to a park is intended

for recreational use is not in dispute.

Minn. Stat. § 466.02 (2014) (the tort liability statute) does not apply to any claim

based upon the performance or the failure to exercise or perform a discretionary function

or duty including:

[a]ny claim based upon the construction, operation, or
maintenance of any property owned or leased by the
municipality that is intended or permitted to be used as a park,
as an open area for recreational purposes, or for the provision
of recreational services . . . and creation of trails or paths
without artificial surfaces, if the claim arises from a loss
incurred by a user of park and recreation property or services.
Nothing in this subdivision limits the liability of a municipality
for conduct that would entitle a trespasser to damages against
a private person . . . .

Minn. Stat. § 466.03, subd. 6e (2014). A possessor of land is subject to liability for bodily

harm caused to a trespasser by an artificial condition on the land if (1) the condition is one

which the possessor has created or maintains and is, to his knowledge, likely to cause death

or serious bodily harm to such trespasser, (2) is of such a nature that he has reason to believe

that trespassers will not discover it, and (3) the possessor has failed to exercise reasonable

care to warn such trespassers of the condition and the risk involved. Lishinski v. City of

Duluth, 634 N.W.2d 456, 458-59 (Minn. App. 2001), review denied (Minn. Jan. 15, 2002).

For purposes of recreational-use immunity, “[w]hether a condition was hidden or

concealed depends on the visibility of the condition, not on whether the injured party

actually saw the danger.” Id. at 459. “When a brief inspection would have revealed the

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condition, it is not concealed.” Johnson v. State, 478 N.W.2d 769, 773 (Minn. App. 1991),

review denied (Minn. Feb. 27, 1992).

In this case, had appellant stopped briefly before riding off the sidewalk and into the

grass, as she indicated she could have, the dangerous condition would have been revealed.

This fact distinguishes the current case from Lishinski. In Lishinski, an in-line skater fell

to her death after skating down a sidewalk that curved sharply, hiding the change in the

surface of the path. Lishinski, 634 N.W.2d at 457. There, the plaintiff remained on the

path, but did not see the change in the surface because the path curved around a stone stage

and hid the change of the pavement from blacktop to pavement stone. Id. Here, appellant

had to leave the path in order to ride into the grass. It is logical that one should not have

to stop to check for hidden dangers if one is using the path as it was intended. Appellant’s

case is more akin to Watters v. Buckbee Mears Co., a case in which the plaintiffs were

injured four-wheeling on property on which they were trespassing when they drove over a

hill and off an unseen ledge concealed by the hill. 354 N.W.2d 848, 851 (Minn. App.

1984). The court held that, even though the hill that the appellants decided to drive up was

not markedly different from the others, an inspection, however brief, would have revealed

the ledge on the other side and thus the danger was not concealed. Id.

Because appellant intentionally left the path, and because she could have seen the

danger had she stopped and looked, the district court did not err in concluding that Rushford

was immune from suit under the recreational-use immunity doctrine.

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VI. Did the district court err in concluding that Minnowa was not negligent in the
design or construction of the sidewalk?

The district court did not err in concluding that Minnowa was not negligent in the

design or construction of the sidewalk. Appellant argues that the district court erred in

“factually finding the alteration was ‘designed and decided on by [MNDOT].’” However,

appellant points to nothing in the record to contradict Minnowa’s testimony indicating that

Minnowa had nothing to do with the design aspect of the construction. Appellant points

to one page in the deposition transcript where Richard Augustin, a project manager at

MNDOT, stated that normally MNDOT and the contractor make decisions collaboratively

in the construction phase. This mere assertion is not enough to overcome the evidence

indicating that Minnowa was merely doing what it was told, and had no part in the design.

Because appellant cannot point to any evidence that Minnowa had any part in the

design of the particular sidewalk and culvert in question, and because appellant’s mere

assertion that respondents were engaged in a joint enterprise does not to amount to

sufficient evidence to create a dispute of material fact, we affirm the district court’s

dismissal of Minnowa.6

6
Appellant, for the first time on appeal, asserts that MNDOT, Minnowa, and Rushford
were in a “joint enterprise when they agreed to design, construct, and maintain the sidewalk
extension.” This court will not consider matters not argued to and considered by the district
court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). Because appellant did not raise
the joint-enterprise theory below, this court will not consider the theory here.

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VII. Did the district court err in concluding that Kaiser is entitled to summary
judgment as a matter of law on its related appeal?

Minnowa also challenges the district court’s grant of summary judgment to Kaiser

on its contribution and indemnification claims. Minnowa was the prime contractor for the

bridge project and Kaiser was Minnowa’s subcontractor, responsible for pouring concrete

for the altered sidewalk. We conclude that the district court did not err in concluding that

cross-respondent Kaiser is entitled to summary judgment as a matter of law. As Minnowa

alleges, contribution and indemnity claims are independent causes of action, but in this

case, Kaiser is still entitled to summary judgment.

Contribution is an equitable doctrine that requires that
persons under a common burden share that burden equitably.
The essential elements of a contribution claim are (1) common
liability of two or more actors to the injured party; and (2) the
payment by one of the actors of more than its fair share of that
common liability. Whether the right of contribution exists is a
legal issue, which we review de novo.

Nuessmeier Elec., Inc. v. Weiss Mfg. Co., 632 N.W.2d 248, 251 (Minn. App. 2001), review

denied (Minn. Oct. 16, 2001) (citations and quotation omitted). Indemnity applies when,

among other situations, “the one seeking indemnity has only a derivative or vicarious

liability for damage caused by the one sought to be charged.” Tolbert v. Gerber Industries,

Inc., 255 N.W.2d 362, 366 (Minn. 1977). Vicarious liability is the imposition of liability

on one person for the actionable conduct of another, based solely on the relationship

between those two persons. Sutherland v. Barton, 570 N.W.2d 1, 5 (Minn. 1997).

Minnowa alleges that the equitable nature of common-law contribution and

indemnity actions supports a broad and flexible definition of “common liability” which

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includes defense costs that accrue as a result of a third-party’s meritless claims, and that

there was no finding regarding “common liability” between Kaiser and Minnowa

determining if appellant’s claims were based entirely or partially on Kaiser’s work.

However, because we conclude the district court did not err in finding that Minnowa was

not negligent, a finding of “common liability” is not necessary.

Furthermore, the cases cited to by Minnowa in arguing that it is entitled to

contribution and indemnity for the cost of defense are distinguishable.

If a party is obliged to defend against the act of another, against
whom he has a remedy over, and defends solely and exclusively
the act of such other party, and is compelled to defend no
misfeasance of his own, he may notify such party of the
pendency of the suit and may call upon him to defend it; if he
fails to defend, then, if liable over, he is liable not only for the
amount of damages recovered, but for all reasonable and
necessary expenses incurred in such defense.

Jack Frost, Inc. v. Engineered Bldg. Components Co., 304 N.W.2d 346, 352-53 (Minn.

1981) (emphasis added). In Jack Frost Inc., the party that was required to pay defense

costs was found to be 15% negligent. Id. at 352. Similarly, in Diebold, Inc. v. Roadway

Express, Inc., the party who would have been responsible for a share of the defense costs

had tender of defense been given was found to be 10% negligent. 538 N.W.2d 150, 151

(Minn. App. 1995). In this case, neither Minnowa nor Kaiser were determined to be even

partially negligent and Minnowa was called to defend alleged misfeasance of its own. A

partially liable party, who properly tenders defense, might or might not recover an equitable

share of the defense costs from another partially liable party, but that is not the case at issue

here. No precedent cited by Minnowa stands for the proposition that equitable contribution

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for defense costs may be recovered when neither party is liable. For this reason, we affirm

the district court’s grant of summary judgment to Kaiser on the indemnification and

contribution claims.

Affirmed.

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