David Homick, 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This opinion will be unpublished and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
A17-1245

David Homick,
Appellant,

vs.

Bozena Hellem,
Respondent.

Filed January 16, 2018
Reversed and remanded
Smith, Tracy M., Judge

St. Louis County District Court
File No. 69DU-CV-16-2824

Robert C. Falsani, Falsani, Balmer, Peterson & Quinn, Duluth, Minnesota (for appellant)

Deborah C. Eckland, Christopher W. Ben tley, Goetz & Eckland P.A., Minneapolis,
Minnesota (for respondent)

Considered and decided by Hooten, Pres iding Judge; Smith, Tracy M., Judge; and
Smith, John, Judge.

U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant David Homick challenges th e summary-judgment dismissal of his
personal-injury negligence claim, arguing that the district court erred because there is a

 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment pursuant to
Minn. Const. art. VI, § 10.

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genuine issue of material fact as to whether respondent-landowner Bozena Hellem should
have anticipated the harm to ap pellant. Because we conclude that the district court erred
in granting summary judgment to Hellem, we reverse and remand for further proceedings.
FACTS
On the early morning of March 30, 2015 , Homick injured his knee and ankle when
he tripped on a raised sidewalk slab while walking out of the rear door and onto the
sidewalk of an apartment building owned by Hellem. Homick ha d been visiting his
girlfriend, who was a second-floor tenant in the building. Homick’s girlfriend asked
Homick to exit through the bu ilding’s rear door because its self-locking mechanism
relieved her of having to walk him to the front door and lock it behind him. The accident
occurred in daylight. There was no snow or ice on the ground, it was not snowing or
raining, and Homick was wearing tennis shoes. Homick sued Hellem, alleging that his
injuries were caused by Hellem’s negligent failure to maintain her property.
Hellem had owned the apartment building for approximately 30 years. One year
before Homick’s injury, Hellem noticed that the condition of the sidewalk had deteriorated.
Hellem admitted that the sidewalk was dangerous at the time of Homick’s injury and that
she had planned to have it repaired. Hellem said that she had received no complaints about
the sidewalk and that the apartment buildi ng had passed all city inspections prior to
Homick’s injury.
In June 2017, Hellem moved for summary judgment, claiming that she owed no
duty to Homick because the raised sidewalk slab was an open and obvious danger. Homick
opposed the motion, arguing that Hellem should have anticipated the harm despite the open

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and obvious danger. The dist rict court granted summary ju dgment in favor of Hellem,
concluding that the defect in the sidewalk was so open and obvious that Hellem could not
have reasonably foreseen Homi ck’s injury and th at Hellem did not ow e a duty to warn
Homick or repair the defect. Homick appeals.
D E C I S I O N
Homick argues that the district cour t erred by granting Hellem’s motion for
summary judgment on his negl igence claim. Summary judgm ent is proper 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. A genuine issue
of material fact exists if a rational trier of fact, considering the record as a whole, could
find for the nonmoving party. Frieler v. Carlson Mktg. Grp., 751 N.W.2d 558, 564 (Minn.
2008). On appeal from summary judgment, we review de novo “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). “[W]e view the eviden ce in the light most favorable to the party
against whom judgment was granted.” Fabio v. Bellomo , 504 N.W.2d 758, 761 (Minn.
1993).
It is the general rule that landowners have a duty to use reasonable care for the safety
of all persons who are permitted to enter their land. Louis v. Louis, 636 N.W.2d 314, 318-
19 (Minn. 2001). As an exception to this general rule, Minnesota has adopted the rule set

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forth in Restatement (Second) of Torts § 343A (1965) providing that a landowner may be
relieved of a duty to protect entrants from known or obvious dangers:
A possessor of land is not liable to his invitee for physical harm
caused 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.
See, e.g., Louis, 636 N.W.2d at 319. The latter ha lf of the rule, concerning whether a
landowner should anticipate th e harm despite such knowledge or obviousness, is “an
exception to the exception.” Senogles v. Carlson, 902 N.W.2d 38, 42 (Minn. 2017). The
Minnesota Supreme Court has described the framework of applying the rule as follows: a
landowner is liable to a guest for harm arising from a condition on the property, except if
the danger was known or obvious to the guest, unless the landowner should have
anticipated the harm to the guest. Id. at 43.
The parties agree that the raised sidewa lk slab presented an open and obvious
danger. They dispute whether a genuine issue of material fact exists as to whether Hellem
should have anticipated th e harm despite the open and obvious danger. Whether a
landowner should have antic ipated the harm is an issue of foreseeability. Id. T h e
foreseeability of a particular harm is based on the facts and circumstances of the case and
“whether the specific danger was objectively re asonable to expect, not simply whether it
was within the realm of any conceivable possibility.” Id. (quotation omitted). In some
circumstances, a danger is so open and obvious that a landowner should not anticipate the
harm and has no duty to warn a guest of the danger. Baber v. Dill, 531 N.W.2d 493, 496
(Minn. 1995).

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Foreseeability is “a threshold issue related to duty that is ordinarily properly decided
by the [district] court prior to submitting the case to the jury.” Domagala v. Rolland, 805
N.W.2d 14, 27 (Minn. 2011) (quotation omitted). However, “[i]n close cases, the issue of
foreseeability should be su bmitted to the jury.” Id. “[T]he issue of foreseeability is
close . . . when the evidence pr esents an explicit dispute of material fact or when a
reasonable person might draw different conclusions from the evidence.” Senogles, 902
N.W.2d at 43 (quotation omitted).
In Senogles, a four-year-old child sustained severe injuries after nearly drowning in
the Mississippi River. Id. at 40. The district court granted summary judgment in favor of
the landowner on the ground that the harm to the child was not foreseeable to the landowner
and therefore the landowner ow ed no duty to the child. Id. at 41. The supreme court
reversed the summary judgment, concluding that, even assuming the danger had been
obvious to the child, the issue of whether the landowner should have anticipated the harm
was a close case to be decided by the jury. Id. at 47-48.
In Peterson v. W. T. Rawleigh Co., an employee was injured after slipping on ice in
an employer’s parking lot. 274 Minn. 495, 496, 144 N.W.2d 555, 557 (1966). The
employer-landowner asserted that it owed no duty to protect its employees from the
obvious danger of an ic y and unplowed surface. Id. Upon review, the supreme court
applied the rule of Restatement (Second) of Torts § 343A (1965). Id. The supreme court
held that a landowner should foresee a harm if he “has reason to expect that the invitee will
proceed to encounter the known or obvious danger because to a reasonable man in his
position the advantages of doing so w ould outweigh the ap parent risk.” Id. at 497, 144

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N.W.2d at 557-58 (quot ation omitted). The supreme cour t stated that the landowner
“should have foreseen that its elderly distributors would . . . attempt to negotiate the area
. . . despite the slippery conditions.” Id. at 497, 144 N.W.2d at 558. The supreme court
concluded that it was proper to submit the negligence claim to the jury. Id. at 498, 144
N.W.2d at 558.
Here, we conclude that the evidence, when viewed in the light most favorable to
Homick, presents a close case on the issue of foreseeability, which must be decided by the
jury. Specifically, Hellem knew that the cond ition of the sidewalk had deteriorated, that
the raised sidewalk slab was dangerous, that the rear door was a convenient exit because it
was self-locking, and that tenants and guests were likely to use the rear door and the
sidewalk despite its condition. As in Peterson and in Senogles, a rational trier of fact could
conclude that the property owner should ha ve anticipated the harm—specifically, that
tenants and guests would use the rear door, attempt to negotiate the deteriorated sidewalk,
and encounter the open and obvious danger of the raised slab. With Senogles and Peterson
as our guideposts, we conclude that the district court erred in granting summary judgment
because a genuine issue of material fact exists on the issue of whether Hellem should have
anticipated the harm to Homick.
Homick raises two additional arguments in support of his contention that the district
court erred in granting summary judgment. First, Homick argues the district court erred in
failing to consider whether Hellem’s maintena nce of the sidewalk violated the Duluth
Housing Code. We note that Homick did not address the alleged code violation or how it
related to the case in the argument section of his summary-judgment memorandum; he only

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referenced it in the fact section. Appellate courts generally do not consider matters not
properly argued to and considered by the district court. Thiele v. Stich, 425 N.W.2d 580,
582 (Minn. 1988 ). Second, Homick argues that the district court erred by failing to
consider the effect of Hellem’s subsequent remedial repair of the sidewalk. Evidence of
subsequent remedial measures is inadmissible to prove neglig ence. Minn. R. Evid. 407.
The rule provides a narrow exception for the admissibility of such evidence when offered
to prove “[the] feasibility of precautiona ry measures, if controverted, or [for]
impeachment.” Id. We note that no evidence demonstr ates that Hellem controverted the
feasibility of repairing the sidewalk and that Homick did not identify a valid impeachment
purpose for admitting the evidence. Although neither of appellant’s additional arguments
is availing, because we conclude that foreseeability is a close question, we reverse the grant
of summary judgment and remand for further proceedings.
Reversed and remanded.