Steven Elliot Rousseau, 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This opinion will be unpublished and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
A16-2013

Steven Elliot Rousseau,
Appellant,

vs.

St. Peter Regional Treatment Center, et al.,
Respondents.

Filed August 14, 2017
Affirmed
Halbrooks, Judge

Nicollet County District Court
File No. 52-CV-15-651

Steven E. Rousseau, North St. Paul, Minnesota (pro se appellant)

Lori Swanson, Attorney General, Janine Kimble , Assistant Attorney General, St. Paul,
Minnesota (for respondents)

Considered and decided by Schellhas, Presiding Judge; Halbrooks, Judge; and
Randall, Judge.

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

2
U N P U B L I S H E D O P I N I O N
HALBROOKS, Judge
Appellant challenges the district court’s grant of summary judgment to respondents.
We affirm.
FACTS
On March 20, 2015, appellant Steven Elliot Rousseau was en route to an
appointment at respondent St. Peter Regional Treatment Center (SPRTC). While walking
on the sidewalk, he tripped on a two -inch rise in the sidewalk and fell, injuring his back,
hands, and wrists. It was a sunny day, and there were no visibility issues.
Rousseau sued respondents SPRTC and the Minnesota Department of Human
Services (DHS) , alleging negligence based on their failure to inspect and maintain the
sidewalk. Following discovery, respondents moved for summary judgment, claiming that
(1) they owed no duty to Rousseau because the rise in the sidewalk presented an open and
obvious danger, (2) Rousseau failed to present evidence that respondents had notice of the
rise in the sidewalk, and (3) Rousseau’s claims were barred by statutory immunity.
Rousseau opposed the motion, arguing that he had met the elements of negligence and that
statutory immunity did not apply. The district court granted summary judgment to
respondents based on its conclusion as a matter of law that the rise in the sidewalk was
open and obvious and that there was no genuine issue of material fact presented regarding
whether respondents should have anticipated the potential harm to Rousseau. The district
court also addressed respondents’ immunity defense, determining that respondents were

3
“immune from suit under discretionary authority whether analyzed by the statutory
immunity or official immunity.” This appeal follows.
D E C I S I O N
Rousseau contends that the district court erred because the danger posed by the rise
in the sidewalk was not open and obvious. “A defendant in a negligence action is entitled
to summary judgment when the record reflects a complete lack of proof on any of the four
elements necessary for recovery . . . .” Louis v. Louis, 636 N.W.2d 314, 318 (Minn. 2001).
A prima facie case of negligence requires evidence of (1) a duty owed by t he defendant,
(2) a breach of that duty, (3) causation, and (4) injury. Hudson v. Snyder Body, Inc., 326
N.W.2d 149, 157 (Minn. 1982). Whether a duty exists in a negligence case is a question
of law, which we review de novo. Funchess v. Cecil Newman Corp., 632 N.W.2d 666, 672
(Minn. 2001).
Generally, a landowner has a duty to use reasonable care for the safety of those who
enter the owner’s land. Louis, 636 N.W.2d at 319. But “[a] possessor of land is not liable
to his invitee for physical harm caus ed to them by any activity or condition on the land
whose danger is known or obvious to them, unless the possessor should anticipate the harm
despite such knowledge or obviousness.” Baber v. Dill, 531 N.W.2d 493, 495 -96 (Minn.
1995) (quotation omitted). “[W]here the anticipated harm involves dangers so obvious that
no warning is necessary,” a possessor of land does not owe an invitee a duty of care. Id. at
496.
Whether a danger is obvious is an objective test. Louis, 636 N.W.2d at 321. “[T]he
question is not whether the injured party actually saw the danger, but whether it was in fact

4
visible.” Id. A condition is obvious if “both the condition and the risk are apparent to and
would be recognized by a reasonable man in the position of the visitor, exercising ordinary
perception, intelligence and judgment.” Id. (quotation omitted).
Here, the rise in the sidewalk was approximately two inches. When Rousseau
tripped, it was sunny, he did not have any visibility issues, he was looking forward, and he
was not distracted. After he fell, Rousseau was able to see the rise, as was the nurse who
assisted him. We conclude that a reasonable person in Rousseau’s position would have
recognized the condition of the sidewalk and the risk it posed.
We next determine whether the condition was so obvious that no warning was
necessary. See Baber, 531 N.W.2d at 496. The supreme court has addressed this issue in
multiple contexts, including injuries involving a raised brick border around a planter , an
icy parking lot, and an uneven concrete slab. See Bisher v. Homart Dev. Co., 328 N.W.2d
731, 732 (Minn. 1983); Peterson v. W. T. Rawleigh Co., 274 Minn. 495, 496, 144 N.W.2d
555, 557 (1966); Johnson v. R. E. Tapley, Inc., 272 Minn. 19, 19-20, 136 N.W.2d 538, 539-
40 (1965).
In Bisher, the plaintiff sustained injuries when she tripped and fell on a low brick
border that surrounded a planter at a shopping center. 328 N.W.2d at 732. The jury found
Bisher 43% ca usally negligent and the defendant 57% ca usally negligent and awarded
$10,000 in damages. Id. The district court granted judgment notwithstanding the verdict
to the defendant. Id. at 733. The supreme court affirmed, holding that the defendant was
not negligent, in part because the planter was in plain view and the change in elevation was
clearly visible. Id. at 733-34.

5
In Johnson, the plaintiff sustained injuries when she missed a 5.5-inch step and fell
from a cement slab. 272 Minn. at 20, 136 N.W.2d at 540. Johnson was awarded damages,
and the de fendant appealed, contending that Johnson’s inattention caused her injuries.
Id. at 20, 22-23, 136 N.W.2d at 540, 542. The supreme court reversed the district court’s
denial of the defendant’s motion for a directed verdict, stating, “Absent other factors, such
as poor illumination or noncontrasting colors, ordinary changes in elevation do not excuse
the failure to see what is in plain sight.” Id. at 23, 136 N.W.2d at 542.
Here, the rise in the sidewalk is similar to the brick border in Bisher and the concrete
slab in Johnson. See Bisher, 328 N.W.2d at 732; Johnson, 272 Minn. at 20, 136 N.W.2d
at 540. The rise in the sidewalk was in plain view and Rousseau was able to see the rise
clearly after he fell. The record does not contain—and Rousseau has failed to allege—any
facts indicating that respondents should have anticipated Rousseau’s harm or that the
condition was not obvious. As in Bisher and Johnson, the change in the sidewalk’s
elevation does not excuse Rousseau’s inattention. Bisher, 328 N.W.2d at 733-34; Johnson,
272 Minn. at 23, 136 N.W.2d at 542.
In Peterson, the plaintiff —defendant’s 69 -year-old employee —sustained injuries
after slipping on the ice in a parking lot. 274 Minn. at 495-96, 144 N.W.2d at 557. A jury
awarded Peter son damages , and the district court denied a motion for judgment
notwithstanding the verdict. Id. at 495, 144 N.W.2d at 557. Upon review, t he supreme
court stated that the defendant “should have foreseen that its elderly distributors
would . . . attempt to negotiate the area . . . despite the slippery conditions” and that “it was
the defendant’s duty either to make the area safe for pedestrian travel or take appropriate

6
measures to prevent the lot from being accessible.” Id. at 497-98, 144 N.W.2d at 558. The
supreme court concluded that it was proper to submit the negligence issue to the jury. Id.
at 498, 144 N.W.2d at 558. Rousseau’s case is distinguishable from Peterson because the
sidewalk’s hazard was a change in elevation, not a slippery surface . See id. at 496, 144
N.W.2d 557.
We conclude that summary judgment was proper in this case because the rise in the
sidewalk was so obvious that no warning was necessary. See Baber, 531 N.W.2d at 496.
We do not reach the issue of immunity because the record was not sufficiently developed.
See Nw. State Bank v. Foss, 287 Minn. 508, 511, 177 N.W.2d 292, 294 (1970) (stating that
the scope of appeal “is determined by the proceedings prior to the entry of judgment”); see
also Minn. R. Civ. App. P. 103.04 1998 advisory comm. cmt. (“As a general proposition,
appellate review is limited to review of the facts and legal arguments that are contained in
the trial record.”).
Affirmed.