Charlotte Nelson, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1095

Charlotte Nelson,
Appellant,

vs.

Townhomes at Water’s Edge, Inc.,
Respondent,

Prairie Property Management of Fargo-Moorhead, Inc.,
Respondent,

Pro Landscapers, L.L.C.,
Respondent,

Ian Hansen, Inc.,
Respondent.

Filed April 17, 2017
Affirmed in part, reversed in part, and remanded
Bratvold, Judge

Clay County District Court
File No. 14-CV-14-1123

Timothy M. O’Keeffe, Tatum O’Brien Lindbo, Sara M. Monson, O’Keeffe, O’Brien,
Lyson & Foss Ltd., Fargo, North Dakota (for appellant)

Kendra E. Olson, H. Morrison Kershner, Pemberton, Sorlie, Rufer & Kershner, P.L.L.P.,
Fergus Falls, Minnesota (for respondent Townhomes at Water’s Edge, Inc.)

Paul R. Aamodt, Eden Prairie, Minnesota (for respondent Prairie Property Management of
Fargo-Moorhead, Inc.)

Troy A. Wolf, Tyler S. Carlson, Fisher Bren & Sheridan, LLP, Fargo, North Dakota (for
respondent Pro Landscapers, L.L.C.)
2

Michael T. O’Rourke, Daniel J. Jardine, Law Office of Settano & Hill, Bloomington,
Minnesota (for respondent Ian Hansen, Inc.)

Considered and decided by Schellhas, Presiding Judge; Hooten, Judge; and
Bratvold, Judge.
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
In this slip-and-fall case against a townhome association and others , appellant
challenges the district court’s order granting summary judgment in favor of respondents,
arguing that: (1) respondents owed her a duty of care; (2) the primary-assumption-of-risk
doctrine does not bar her claim; and (3 ) questions of fact about causation make summary
judgment inappropriate. Because the district court erred when it granted summary
judgment in favor of respondents Townhomes at Water’s Edge, Inc. and Prairie Property
Management of Fargo -Moorhead, Inc., but did not err in granting summary judgment in
favor of respondents Pro Landscapers, L.L.C. and Ian Hansen, Inc., we affirm in part,
reverse in part, and remand.
FACTS
On March 1, 2013, appellant Charlotte Nelson, who was then 89 years old, slipped
and fell on the sidewalk leading from the front door of her townhome, breaking a bone in
her upper arm near her shoulder. “It was a beautiful wonderful day,” with sunshine and “a
lot of melting” snow. At the time she fell, Nelson was trying to push water down her
sidewalk so it would drain into the street . Before that day, snow , ice , and water had
accumulated on Nelson’s sidewalk, which led from her front door to the driveway.
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Nelson owns a unit at Townhomes at Water’s Edge, L .L.C., which is a common-
interest community known as W ater’s Edge Townhomes (Water’s Edge ) in Moorhead ,
Minnesota. Respondent Townhomes at Water’s Edge, Inc. ( the Association ) is the
townhome association for the community. The Association had several agreements
governing its relationship with unit owners, including bylaws, covenants, and declarations
(collectively, the “Association agreements”).
The Association retained respondent Prairie Property Management of Fargo -
Moorhead, Inc. (Prairie Property) to manage Water’s Edge. Prairie Property hired
respondent Pro Landscapers, L.L.C. (Pro Landscapers), to remove snow at Water’s Edge,
and specifically contracted for removal following any snow “event” of two or more inches.
Pro Landscapers would provide additional services upon request, for example, “sanding,
salting, ice removal, and/or remediation,” as well as snow removal of less than two inches.
Prairie Property occasionally hired respondent Ian Hansen, Inc. (Hansen) to
complete “odd jobs” at Water’s Edge. Hansen did not have a written contract or “standing”
oral agreement. In an affidavit, Hansen’s owner described his work at Water’s Edge as “on
call”; “project by project”; “always narrowly defined”; and “limited in scope and duration.”
In her deposition, Nels on testified that she understood that Prairie Property would
remove snow from her sidewalk if more than two inches fell. If less than two inches of
snow fell, Nelson testified that “we just let it go .” Sometimes, Nelson shoveled a “small
amount,” and somet imes, the snow would accumulate on her sidewalk. According to
Nelson’s testimony, even when Prairie Property and its agents cleared snow from her
sidewalk, “they [didn’t] do a very good job.” During the winter months, Nelson did not use
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her front door or sidewalk because the sidewalk was “too packed with ice.” Instead, Nelson
entered her townhome directly from inside her garage without using her sidewalk.
The parties appear to agree that, at least for the purposes of summary judgment, no
snowfall of two or more inches had occurred at Water’s Edge during the ten days preceding
Nelson’s fall. In fact, the undisputed record evidence establishes that (1) Pro
Landscapers received no requests for additional services at Water’s Edge at any time
during the winter of 2012 –13, meaning Prairie Property made no requests for sanding,
salting, additional snow removal, ice removal, and/or other remediat ion; and (2) in
performing its regular contract, Pro Landscapers removed snow at Water’s Edge on
February 18, 2013, and did not work there again until after Nelson’s fall.
Four days before Nelson’s fall, on February 25, 2013, Hansen was at Water’s Edge
and “put down” sand and salt mix and shoveled snow from r ooftops, among other jobs .
Hansen’s invoice desc ribes the work, which did not include any snow, ice, or water
removal from individual sidewalks. Hansen did not work at Water’s Edge again until after
Nelson’s fall.
Before Nelson’s fall on March 1, four inches of snow and ice had accumulated on
her sidewalk, according to Nelson’s deposition testimony. On the morning of March 1,
Nelson saw snow, ice, and water on her sidewalk, as well as water dripping onto her
sidewalk from the roof.
Before Nelson left for the day, she telephoned Prairie Property and asked them to
remove “snow and water” from her sidewalk. Nelson testified that Paulette of Prairie
Property said it was going to be “taken care of , or something to that effect .” Nelson
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explained that she had made similar cal ls in the past , and “got the same answer that we
usually got.” After talking to Paulette, Nelson left through her garage, did not walk on her
sidewalk, and drove to visit her son.
When Nelson returned home around 6:30 p.m., she “peeked” at her sidewalk from
around the corner of her garage “to see how the ice was doing.” She saw “all water” on the
sidewalk. Nelson testified that she thought, “I can get rid of that.” Planning to p ush the
water down the sidewalk so it would drain into the street, Nelson walked through her
garage, grabbed her shovel, entered her home, and then stepped out the front door. Nelson
fell on her first step onto her sidewalk, knew she had injured something, and lay there,
waiting for help from a neighbor. When asked whether she saw ice before she stepped onto
the sidewalk, Nelson testified that she “didn’t expect there to be ice under the water.”
Nelson sued the Association , Prairie Property , Pro Landscapers, and Hansen
alleging that they were n egligent in failing to keep Water’s Edge “common areas ,”
including her sidewalk, clear and in a reasonably safe condition. Respondents moved for
summary judgment. After a hearing, the district granted respondents’ motions for summary
judgment and dismissed Nelson’s claim with prejudice. Nelson appeals.
D E C I S I O N
This court reviews a district court’s summary-judgment decision de novo, analyzing
“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). “We view the evidence in the light
most favorable to the party against whom summary judgment was granted.” STAR Ctrs.,
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Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76–77 (Minn. 2002). Summary judgment
is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that either party is entitled to a judgment as a matter of law.” Minn. R.
Civ. P. 56.03.
I. The district court erred in granting summary judgment to the Association and
Prairie Property.

A. The Association and Prairie Property did not owe Nelson a duty of care
to remove ice and wat er from her sidewalk under the A ssociation
agreements.

To recover on a negligence claim, a plaintiff must show: “(1) the existence of a duty
of care; (2) a brea ch of that duty; (3) an injury; and (4) that the breach o f the duty was a
proximate cause of the injury.” Doe 169 v. Brandon, 845 N.W.2d 174, 177 (Minn. 2014).
“Summary judgment is appropriate when the record lacks proof of any of the four elements
[of a negligence claim].” Kellogg v. Finnegan, 823 N.W.2d 454, 458 (Minn. App. 2012).
“The existence of a duty of care is a threshold question because a defendant cannot breach
a nonexistent duty.” Doe 169, 845 N.W.2d at 177. Whether a duty exists is a legal question
that we review de novo . Bjerke v. Johnson, 742 N.W.2d 660, 664 (Minn. 2007). If a duty
of care does not exist, the district court need not reach the remaining elements of a
negligence claim. Domagala v. Rolland, 805 N.W.2d 14, 22 (Minn. 2011)
“Landowners have a duty to use reasonable care for th e safety of all . . . perso ns
invited upon the premises.” Ironwood Springs Christian Ranch, Inc. v. Walk to Emmaus ,
801 N.W.2d 193, 197 (Minn. A pp. 2011) (quotation omitted). “It is generally recognized
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that one who carries on activities on land on behalf of the possessor is subject to the same
liabilities as the possessor, and that one in control of the premises is under the same duty
as the owner to keep th e premises in safe condition.” Id. at 197–98 (citing Restatement
(Second) of Torts § 328E (1965) (defining “possessor”)).
Nelson admits that she owns her individual unit and sidewalk but argues that the
Association and Prairie Property owed her a duty of care as “possessors” and specifically
owed a duty to remove snow and ice under the Association agreements. Nelson claims that
the Association agreements establish that her sidewalk is part of the “common areas” and
“common elements,” and also asserts that the Association, and its agent Prairie Property,
had a duty to clear snow, ice, and water from her sidewalk under the same agreements. The
district court determined that Nelson’s sidewalk is part of her individual unit and not part
of the “common areas” or “common elements.”
We review the terms of a contract de novo. Bus. Bank v. Hanson, 769 N.W.2d 285,
288 (Minn. 2009). When a contract is unambiguous, the “plain and ordinary meaning of
the contract language controls.” Id. A contract is unambiguous when “it has only one
reasonable interpretation.” Halla Nursery, Inc. v. City of Chanhassen , 781 N.W. 2d 880,
884 (Minn. 2010). “In interpreting a contract, we give effect to all of its terms, and read its
terms in the context of the entire contract.” Kalenburg v. Klein, 847 N.W.2d 34, 40 (Minn.
App. 2014) (citations omitted). We also construe “[a] contract and several writings relating
to the same transaction” consistent with each other. Am. Nat’l Bank of Minn. v. Housing &
Redevelopment Auth. for City of Brainerd, 773 N.W.2d 333, 337 (Minn. App. 2009).
8
The Association agreements specifically refer to sno w removal in one section. In
article III, section 4, the covenants provide, as follows : “The landscaping, mowing and
snow clearing of the Common Areas and the individual yards, shall be maintained by the
Association.” The covenants define “Common Areas” in article I, section 4, as “all real
property (including the improvements thereto) to be maintained by the condominium for
the common use and enjoyment of the Owners.” (Emphasis added.) Thus, the covenants
expressly limit common areas to those of common use . The covenants do not define
“individual yards,” so we turn to its common meaning, the “ground next to, surrounding,
or surrounded by a building” and conclude that “individual yards” are the grounds, but not
sidewalks, surrounding an individual townhome. The American Heritage College
Dictionary 1587 (4th ed. 2007) (defining “yard”).
In contrast, the covenants define “unit” in a rticle I, section 5, as “the individual
residential dwelling Units as shown on Exhibit A constituting the CIC Plat.” We agree with
the district court’s determination that Nelson’s sidewalk is depicted as part of her u nit,
which includes everything within her lot line in Exhibit A, the CIC p lat. Exhibit A also
shows “common a reas” as not including individual units or yards. Because Nelson’s
sidewalk falls within her lot lines, and is part of her individual unit and not for common
use, we conclude that the Association’s snow-removal duty did not include the sidewalk in
front of Nelson’s in dividual unit. Moreover, the covenants establish that the Association
had a duty to clear snow from the common areas, but did not impose a duty to remove ice
or water.
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Alternatively, Nelson points to a number of general provisions regarding the
Association’s maintenance obligations for the “common elements” and argues that those
provisions are ambiguous . We are not convinced that general maintenance o bligations
include snow removal. Burgi v. Eckes, 354 N.W.2d 514, 519 (Minn. App. 1984) (stating
“the rule of construction that the specific in a writing governs over the general”). Even
assuming this is the case, we are not persuaded by Nelson’s argument. Nelson is correct
that the bylaws provide that the Board’s duties shall include “[o]peration, care, upkeep and
maintenance of the common elements.” The bylaws also state that “[a]ll maintenance,
repair and replacements to the common elements, whether located inside or outside of the
Units . . . shall be made by the Board of Managers and be included as part of the common
expense.”
But we agree with the district court that the declarations unambiguously exempt
individual units from the common elements. In paragraph 7, the declarations provide that
“[t]he boundaries of eac h unit shall consist of the lot lines for each townhome.” In
paragraph 8, the declarations define “Common Elements,” as follows:
The common element s consist of the entire Townhome
property except for the individual units as defined above and
set forth on t he CIC plat . . . . Such common elements shall
include all recreational or community facilities, driveway
areas, parking areas, and all other parts of the Townhome and
any apparatus and installations existing on the premises for
common use or which may be necessary or convenient to the
existence, maintenance or safety of the Townhome
development.

(Emphasis added.) Similar to the provision about snow removal in the “common areas ,”
the provision about maintenance of the common elements specifically excludes the
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individual unit s. Also, the general maintenance duties imposed by the declarations are
expressly limited to areas of common use. In contrast, the bylaws establish that general
duties of maintenance and repair for each unit fall to the owner of that individual unit.1
We conclude that the district court did not err when it determined that the
Association and its agent Prairie Property did not owe Nelson a duty to remove snow, ice,
or water from the sidewalk in front of her individual unit , based on the Association
agreements.
B. Questions of fact exist regarding whether the Association and Prairie
Property assumed a duty of care.

“[O]ne who voluntarily assumes a duty must exercise reasonable care or he will be
responsible for damages result ing from his f ailure to do so.” Ironwood Springs , 801
N.W.2d at 198. “Whether a duty has been assumed is a question of fact.” Id. Nelson relies
on Restatement (Second) of Torts § 323 (1965) to establish that the Association and Prairie
Property assumed a duty of care. See Funchess v. Cecil Newman Corp., 632 N.W.2d 666,
674 (Minn. 2001) (applying Restatement section 323). The elements of this theory are :
(1) a defendant undertakes to provide services to plaintiff (gratuitously or for
consideration); (2) the services are necessary for the protection of the plaintiff’s person or
things; (3) there is a breach of reasonable care in performing the undertaking because either
(a) the defendant increases the risk of harm, or (b) the plaintiff relies on the undertaking;
and (4) physical harm results. Restatement (Second) of Torts § 323.

1 The bylaws, in article V, section 5, provides that “[a]ll maintenance of and repairs to any
Unit shall be made by the Owner of such Unit.”
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On summary judgment, Nelson argued that the Association and its agent, Prairie
Property, assumed a duty of care to remove snow, ice, and water from her sidewalk. The
district court initially determ ined that any duty to remove snow from Nelson’s sidewalk
was limited to a snowfall of two or more inches. Nelson admitted this duty was not
breached and that she was responsible to remove snow of less than two inches. Based on
this allocation of duties, the district court concluded that respondents had no duty to protect
Nelson from a “buildup of ice, water, or snow on her individual sidewalk.”
On appeal, Nelson has narrowed her theory on this issue and argues that the district
court erred because, on the day of her fall, Prairie Property promised Nelson that it would
“take care” of the ice and water on her s idewalk. Because Nelson’s testimony on this
promise is undisputed and we must view the evidence in the light most favorable to Nelson,
we conclude that reasonable persons could draw different conclusions as to whether the
Association and Prairie Property assumed a duty to remove ice and water from Nelson’s
sidewalk. See Ironwood Springs , 801 N.W.2d at 200 ( reversing summary judgment for
respondent who volunteered to remove snow and ice for landowner, creating question of
fact on whether respondent assumed a duty of care).
Respondents contend that Nelson’s theory fails because she offered no evidence of
reliance on Prairie Property’s promise to remove ice and water . We reject r espondents’
argument for two reasons. First, reliance may be, but is not always , required to establish
assumption of a duty under section 323, which states that the breach of assumed duty must
either increase the risk of harm or cause harm because of reliance. Restatement (Second)
of Torts § 323.
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Second, and more importantly, reliance i s generally a fact question. See Campbell
v. Ins. Serv. Agency, 424 N.W.2d 785, 791 (Minn. App. 1988) (reversing directed verdict
in favor of defendant and remanding for jury trial because fact dispute existed whether
plaintiff actually relied on defendant’s assumption of duty ); see also Ironwood Springs,
801 N.W.2d at 202 (reversing summary judgment award under Restatement section 324A
where genuine fact dispute existed regarding plaintiff’s reliance on defend ant’s
undertaking). In its brief discussion of this issue, the district court stated that, when Nelson
returned from her son’s home on March 1, she saw her sidewalk and knew respondents had
not removed snow, ice, or water , and that she therefore did not rely on Prairie Property’s
promise.2
We conclude that the record evidence supports conflicting inferences. One inference
is that Nelson tried to remove water that day because she did not rely on Prairie Property

2 This issue overlaps somewhat with whether the sidewalk conditions were a known or
obvious danger and whether Nelson assumed the risk, both of which are discussed later in
this opinion. Regarding the assumed-duty issue, the district court stated it was undisputed
that, when Nelson returned at 6:30 p.m., “[s]he could tell that nobody had been there and
the sidewalk was still covered in water.” The district court appears to be referring to the
following exchange between Nelson and the Association’s attorney:
Q: And so when you came back in the evening you could tell that nobody had been
there?
A: Yes, that’s why I peeked mostly.
Q: Okay. And you could see that there was ice and there was water just like had
been there earlier in the day?
A: Yes.
Q: Okay.
A: Well, actually there was more water because it had, you know, melted all day.
While Nelson responded affirmatively to the question, she also stated “that’s why I peeked
mostly,” which, when viewed favorably to the non-moving party, suggests that she looked
to determine whether Prairie Property had removed the water as she requested. Nelson did
not affirmatively state that “nobody had been there.”
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to remove ice and water from her sidewalk. Evidence supporting this inference includes
Nelson’s observation of water on the sidewalk and her usual practice of not using the
sidewalk during winter. Another inference is that Nelson relied on Prairie Property to
remove ice and water on March 1 . Evidence supporting this inference is that Nelson did
not usually shovel or otherwise maintain her sidewalk during the winter and she called
Prairie Property on M arch 1 to ask for removal of ice and water on her sidewalk . The
district court erred in drawing an inference adverse to Nelson where the evidence
reasonably supports a favorable inference.
Because questions of fact exist regarding whether the Association and Prairie
Property assumed a duty by undertaking to remove snow, ice, and water from Nelson’s
sidewalk on March 1 and whether Nelson relied on any undertaking, the district court erred
when it granted summary judgment in favor of the Association and Prairie Property on this
theory.
C. The district court erred in determining that respondents had no duty
because the ice on Nelson’s sidewalk was a known or obvious danger.

A landowner or possessor has no common-law duty to warn a per son of known or
obvious dangers. Baber v. Dill, 531 N.W.2d 493, 496 (Minn. 1995). Whether no duty exists
because the danger is known or obvious is a legal determination that is reviewed de novo ;
and, because this issue determines existence of a duty, a court must consider this issue
before assumption of the risk. Id. at 495.
Minnesota has adopted the Restatement (Second) of Torts § 343A (1965), which
provides that a possessor of land is not liable to others for physical harm cause d by any
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activity or condition “whose danger is known or obvious to them, unless the possessor
should anticipate the harm despite such knowledge or obviousness.” Id. at 495–96. The
Minnesota Supreme Court has said that “[t]he difference between open and obvious
dangerous activities and conditions for which the possessor should anticipate harm and
those activities and conditions for which the possessor should not anticipate harm because
they are so open and obvious is a fine one, but one that we choose to make.” Id. at 496
(holding no duty existed because plaintiff assisted in creating dangerous condition that
caused injury). To be known or obvious, a danger “must not only be known to exist, but it
must also be recognized that it is dangerous.” Louis v. Louis, 636 N.W.2d 314, 321 (Minn.
2001). “[W]hat constitutes an ‘obvious’ danger is an objective test: the qu estion is not
whether the injured party actually saw the danger, but whether it was in fact visible.” Id.
The district court relied on section 343A and concluded that respondents owed no
duty because Nelson was aware of the “snow and ice buildup” on her sidewal k during the
winter months, aware of “water and ice buildup” and saw “water was pooling on top of the
accumulated ice on the sidewalk” on the day she fell, and “[j]ust before she chose to step
out onto the sidewalk, she again o bserved those same conditions .” Nelson contends that
this was error because it was undisputed that the ice buildup was melting during the day
that she fell and, while she saw and reported ice to Prairie Property earlier in the day, she
observed “all water” on the sidewalk just before her fall.
We conclude there is a fact question whether the ice on Nelson’s sidewalk was a
known or obvious danger for two reasons. First, Nelson offered the only evidence of
sidewalk conditions just before she stepped on it. In Nelson’s deposition, respondents
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repeatedly questioned Nelson about the sidewalk conditions and she testified in various
ways. Nelson consistently testified that the sidewalk was covered by snow, ice, and water
earlier in the day, before she called Prai rie Property. Nelson also testified that, after she
returned at 6:30 p.m., the sidewalk was “clear water”; later, she agreed with a question that
there was “clear water over the top” of ice. She testified that, after she fell and was lying
on the sidewalk waiting for help, she was in a “lot of water,” maybe three to four inches,
and “I thought it was all water.” Nelson further testified that she did not know if she could
see ice when she stepped out her door. Because we must view the evidence in the light
most favorable to the non -moving party and do not consider credibility on summary
judgment, we conclude that Nelson’s testimony, if believed, establishes a fact question .
See Hoyt Props., Inc. v. Prod. Res. Grp., L.L.C. , 736 N.W.2d 313, 320 (Minn. 2007)
(stating that a court may not make credibility determinations on summary judgment).
Second, given our determination that this record creates a fact issue regarding
whether the Association and Prairie Property assumed a duty to remove ice and water on
the day Nelson fell, it seems likely that the known-or-obvious-danger doctrine does not
apply. A possessor of land is not relieved of a duty of care when it “can and should
anticipate that the dangerous condition will cause physical harm.” Peterson v. W. T.
Rawleigh Co., 274 Minn. 495, 497, 144 N.W.2d 555, 557 –58 (1966) (holding known-or-
obvious-danger doctrine did not eliminate defendant’s duty of care for icy parking lot
because it could anticipate use by invitees). Based on Nelson’s undisputed testimony that
she alerted Prairie Property to the conditions on her sidewalk on the day she fell, and that
Prairie Property responded that it would “take care” of the problem, we conclude that a fact
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issue arises whether Prairie Property anticipated the dangerous condition, thus, the district
court erred in granting summary judgment.
II. The district court err ed when it determined that respondents had no duty
because Nelson assumed the risk.

Minnesota recognizes two types of assumption of the ris k. Primary assumption of
the risk occurs when a plaintiff “voluntarily enters into a relationship in which the plaintiff
assumes well-known, incidental risks” and “consents to look out for himself and relieve
the defendant of his duty.” Schneider v. Erickson, 654 N.W.2d 144, 148 (Minn. App. 2002).
Primary assumption of the risk is not an affirmative defense. Armstrong v. Mailand, 284
N.W.2d 343, 348 (Minn. 1979). Rather, it is a complete bar to a plaintiff’s recovery because
if a plaintiff primarily assumed the risk, the defendant owed the plaintiff no duty of care .
Daly v. McFarland , 812 N.W.2d 113, 119 (Minn. 2012). But primary assumption of the
risk is rarely applied in Minnesota, and is “limited to certain types of circumstances,” such
as cases involving inherently dangerous sports. Id. at 120; Renswick v. Wenzel, 819 N.W.2d
198, 205 (Minn. App. 2012) (“A finding of primary assumption of the risk is a rare thing
in Minnesota.”), review denied (Minn. Oct. 16, 2012). If the primary -assumption-of-the-
risk doctrine applies, “[w]hether a party has primarily assumed the risk is usually a question
for the jury, unless the evidence is conclusive.” Schneider, 654 N.W.2d at 148.
Secondary assumption of the risk is “an affirmative defense to an established breach
of duty which may only be raised when the plaintiff has voluntarily chosen to encounter a
known and appreciated danger created by th e negligence of the defendant.” Rusciano v.
State Farm Mut. Auto. Ins. Co. , 445 N.W.2d 271, 273 (Minn. App . 1989 ) (quotation
17
omitted). “Secondary assumption of risk is a form of contributory negligence .” Id.
(quotation omitted). Because secondary assumption of the risk is fault that is apportioned
under the comparative-negligence statute, it does not bar plaintiff’s claim and instead
generally raises a fact question for the jury. Iepson v. Noren , 308 N.W.2d 812, 816 n. 1
(Minn. 1981); Springrose v. Willmore, 292 Minn. 23, 24–25, 192 N.W.2d 826, 827 (1971).
“The basic elements of primary and secondary assumption of the risk are the same and
include whether the plaintiff had (a) knowledge of the risk, (b) an appreciation of the risk,
and (c) a choice to avoid the risk but voluntarily chose to take it.” Schneider, 654 N.W.2d
at 149.
Nelson contends that the district court erred because it did not view the evidence in
the light most favorable to her as the non-moving party. Nelson argues that “she reasonably
believed that the ice had melted into water” before she stepped onto her sidewalk. In
contrast, the district court concluded that “a reasonable person in [Nelson’s] position would
understand the dangers of stepping onto a sidewalk that is known to be covered in water
with a layer of ice underneath.” We conclude that the district court erred.
First, it is unclear whether the district court applied primary or se condary
assumption of the risk. W e conclude that primary assumption of the risk does not apply
because this doctrinal bar to all recovery is generally limited to inherently dangerous
sporting activities. Daly, 812 N.W.2d at 120 (declining to apply primary -assumption-of-
the-risk doctrine to snowmobiling accident). Previous appellate decisions have recognized
that walking over a known icy or slippery surface may raise questions of comparative fault,
but does not bar a claim. See, e.g., Lillemoen v. Gregorich, 256 N.W.2d 628, 632–33 (Minn.
18
1977) (reversing directed verdict for defendant and remanding for jury trial because
evidence established that defendant -landlord did not provide proper roof coverage or
drainage for melting ice, but plaintiff-tenant knew steps where he fell were icy); Johnson
v. Alford & Neville, Inc. , 397 N.W.2d 591, 593 –94 (Minn. App. 1986) (affirming jury
verdict in favor of plaintiff and determination that she was not contributorily negligent
when she slipped and fell on icy pavement); Olson v. City of St. James , 380 N.W.2d 555,
558–59 (Minn. App. 1986) (reversing directed verdict and remanding for jury trial where
plaintiff slipped on icy sidewalk, even though evidence established pl aintiff knew of icy
conditions and usually avoided sidewalk).
Second, secondary assumption of the risk does not support summary judgment on
this record because fact questions exist on all three elements: whether Nelson knew or
should have known her sidewalk was icy at the time of her fall, whether Nelson appreciated
the risk of falling, and whether Nelson could have chosen to avoid the risk, but voluntarily
chose to take it.
Here, it is undisputed that Nelson did not ordinarily use the sidewalk in the wint er
months because it was covered with ice and that she stepped onto her sidewalk voluntarily
after obs erving wet and icy conditions during the morning before she fell. It is also
undisputed, however, that Nelson complained to Prairie Property about her sid ewalk
conditions, and Prairie Property promised to “take care” of the sidewalk. Nelson essentially
admitted that, after she returned home, she decided to clear the sidewalk herself. But record
evidence establishes that March 1 was a warm, sunny day, and sn ow and ice had been
melting onto Nelson’s sidewalk. Nelson also testified that when she stepped onto the
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sidewalk, she did not expect there to be ice underneath the water because she saw “all
water.” Accordingly, the district court erred in granting summary judgment in favor of the
Association and Prairie Property on Nelson’s assumption of the risk because the record
evidence raises questions of fact for the jury.
III. The district court erred in concluding that there was no question of fact
regarding causation.

The district court determined that “evidence of causation is clearly lacking” because
it was “more likely than not that the dripping water from the roof is what subsequently
caused the accumulation of ice or water” and caused Nelson to slip and fall. But causation
is a fact question for the jury. Ironwood Springs, 801 N.W.2d at 200. A jury may ultimately
agree with the district court and reject Nelson’s claim. See Mattson v. St. Luke’s Hosp. of
St. Paul, 252 Minn. 230, 234–35, 89 N.W.2d 743, 746 (1958) (holding that land possessor’s
duty to maintain premises in reasonably safe condition “does not require that outside steps
be kept free of ice at all times but permits a reasonable length of time for the removal o f
the ice” when precipitation is continuous); Frykman v. Univ. of Minn.-Duluth, 611 N.W.2d
379, 381 (Minn. App. 2000) (same, and noting that whether defendant acted reasonably in
clearing ice is fact question for jury). But because genuine issues of materi al fact remain
regarding whether the Association and Prairie Property assumed a duty of care, and
whether Nelson was at fault , the district court erred in concluding that there was no fact
question for the jury to decide whether the Association’s or Prairie Property’s negligence
was the proximate cause of Nelson’s injury.
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IV. The district court did not err in grant ing summary judgment to Pro
Landscapers and Hansen.

The district court determined that, because the Association and Prairie Property did
not owe Nelson a duty of ca re, Pro Landscapers and Hansen also did not owe Nelson a
duty of care. Nelson only briefly mentions Pro Landscapers and Hansen in her appellate
brief and makes no argument specific to either of these two respondents. As a result, it is
unclear whether Nelson challen ges this portion of the summary -judgment decision on
appeal. Nonetheless, we first address whether Pro Landscapers and Hansen owed Nelson
a duty of care, and then analyze whether either respondent assumed a duty of care.
Neither Pro Landscapers nor Hansen was a party to the Association agreements with
unit owners. There is also no evidence that Nelson ever communicated directly with Pro
Landscapers or Hansen. Pro Landscapers had a limited contract with Prairie Property, and
the contract did not specifically cover work on Nelson’s unit. Pro Landscaper s’ contract
obligated it to remove snow from Water’s Edge after a snow fall “event” of two inches or
more. Pro Landscapers offered evidence, not rebutted by Nelson, that Prairie P roperty
made no requests for sanding, salting, additional snow removal, ice removal, and/or other
remediation during the winter of 2012 –13. Also, in performing its regular contract, Pro
Landscapers removed snow at Water’s Edge on February 18, 2013, and did not work there
again until after Nelson’s fall.
Hansen had no written contract or standing oral agreement with Prairie Property .
Hansen performed odd jobs at Water’s Edge on an “on call” basis. Nelson did not present
any evidence that Hansen was h ired to complete work at Water’s Edge on any date other
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than February 25, 2013, four days before Nelson fell. No evidence establishes that Hansen
worked at Nelson’s unit on February 25 and Hansen did not return to Water’s Edge until
after Nelson’s fall. We conclude that neither Pro Landscapers nor Hansen owed Nelson a
duty of care regarding the condition of her sidewalk on the day of her fall.
We also conclude that there is no genuine issue of material fact that Pro Landscapers
or Hansen assumed a duty of c are. Even if a jury were to decide that Prairie Property
assumed a duty of care, there is no evidence that Prairie Property contacted Pro
Landscapers or Hansen on March 1 and asked either respondent to clear the snow, ice, or
water from Nelson’s sidewalk. Viewing the evidence in the light most favorable to Nelson,
there is no evidence linking Prairie Property’s promise to “take care” of Nelson’s sidewalk
to Pro Landscapers or Hansen.
Because Pro Landscapers and Hansen did not owe or assume a duty of care
regarding Nelson’s sidewalk , Ne lson cannot recover on her negligence claim and the
district court did not err in granting summary judgment in favor of Pro Landscapers and
Hansen.
Affirmed in part, reversed in part, and remanded.