Lynn Baker Handelman-Seigel, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1358

Lynn Baker Handelman-Seigel,
Appellant,

vs.

City of Edina,
Defendant,

Independent School District #273,
Respondent.

Filed May 20, 2019
Affirmed
Hooten, Judge

Hennepin County District Court
File No. 27-CV-17-7211

Thomas F. DeVincke, Malkerson Gunn Martin LLP, Minneapolis, Minnesota (for
appellant)

Mark R. Azman, Shamus P. O’Meara, O’Meara, Leer, Wagner & Kohl, P.A., Minneapolis,
Minnesota (for respondent)

Considered and decided by Cochran, Presiding Judge; Hooten, Judge; and Reyes,
Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
In this appeal from a district court’s grant of summary judgment dismiss ing
appellant’s claim that respondent’s negligence caused her to slip and fall, appellant argues

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that the district court erred in applying recreational -use immunity under Minn. Stat.
§ 466.03, subds. 1, 6e, 23 (2018) and the “mere slipperiness” rule. We affirm.
FACTS
On January 31, 2015, appellant Lynn Baker Handelman -Seigel attended a youth
basketball tournament at the Edina Community Center (ECC). On her way into the ECC,
outside door number 8 of the facility, appellant slipped and fell on a patch of black ice that
she described as approximately two basketballs long and one basketball wide. Appellant
first thought t hat she only sprained her ankle and attended the basketball to urnament as
planned. Appellant later discovered that she had a broken ankle and suffered what she
describes as a “serious knee injury.” To address her injuries, appellant asserts that she
underwent one surgery and will need “additional surgery.”
In May of 2017, appellant filed suit against respondent Independent School District
#273 (ISD #273), which owns and operates the ECC, alleging negligence. 1 In June of
2018, the district court granted summary judgment for respondent, finding that both the
“mere slipperiness” rule and statutory recreational-use immunity, M inn. Stat. § 466.03,
subds. 1, 6e, 23, shielded respondent from liability against appellant’s claims. This appeal
follows.
D E C I S I O N
Summary judgment is appropriate when the moving party demonstrates that there
is no genuine issue of material fact a nd that they are entitled to judgment as a matter of

1 Appellant also sued the city of Edina and other then -unknown corporations, but
subsequently dismissed these other defendants.

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law. Minn. R. Civ. P. 56.01. A genuine issue of material fact exists when the nonmoving
party presents evidence that creates a doubt as to a factual issue that is “probative with
respect to an essential element of the nonmoving party’s case to permit reasonable persons
to draw different conclusions. ” DLH, Inc. v. Russ , 566 N.W.2d 60, 71 (Minn. 1997).
“[T]here must be evidence on which the jury could reasonabl y find for the nonmoving
party.” Id. (quotation omitted).
Negligence is the failure to exercise the care that persons of ordinary prudence
would exercise under similar circumstances. Domagala v. Rolland , 805 N.W.2d 14, 22
(Minn. 2011). “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).
Statutory recreational-use immunity shields respondent from liability
Generally, school districts are subject to liability for their torts. See Minn. Stat.
§ 466.02 (2018). But the legislature has carved out special exceptions where municipal
organizations are granted immunity from specific tort clai ms, two of which are relevant
here. Under Minn. Stat. § 466.03, subd. 6e, municipal organizations are immune from:
Any 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, or from any claim based on the
clearing of land, removal of refuse, 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

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for conduct that would entitle a trespasser to damages against
a private person, except as provided in subdivision 23.

While Minn. Stat. § 466.03, subd. 23(a), provides immunity against, “Any claim for
a loss or injury arising from the use of school property or a school facility made available
for pub lic recreational activity. ” But Minn. Stat. § 466 .03, subd. 23(b) carves out the
exception that, “Nothing in this subdivision: (1) limits the liability of a school district for
conduct that would entitle a trespasser to damages against a private person.”
Appellant does not dispute that these statutes ap ply to the instant facts. Instead,
appellant argues that the exception s found in subdivision s 6e and 23(b)(1), which allows
liability when a trespasser would be able to recover from a landowner, applies to defeat
this immunity.
Under Minnesota law:
A possessor of land who knows, or from facts within his
knowledge should know, that trespassers constantly intrude
upon a limited area of the land, is subject to liability for bodily
harm caused to them by an artificial condition on the land, if

(a) the condition

(i) is one which the possessor has created or maintains
and

(ii) is, to his knowledge, likely t o cause death or
serious[] bodily harm to such trespassers and

(iii) is of such a nature that he has reason to believe that
such trespassers will not discover it, and

(b) the possessor has failed to exercise reasonable care to warn
such trespassers of the condition and the risk involved.

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Johnson v. Washington Cty., 518 N.W.2d 594, 599 (Minn. 1994) (quoting Restatement
(Second) of Torts § 335).
Here, appellant has submitted absolutely no evidence that respondent created the
ice, or that respondent had either actual or constructive notice of the ice such that a fact -
finder could possibly conclude that respondent “maintai ned” the condition. Appell ant
claims that the condition was caused by “event goers’ disposing of half full bottles of water
on the sidewalk areas at ECC.” But even assuming this is true, appellant did not submit
any evidence that respondent knew of or maintained the condition.
In contrast, the school custodian submitted an affidavit declaring that custodial and
maintenance staff walk the ECC sidewalks and entryways every day and are trained to treat
any accumulation of snow or ice with “ice melt.” This same affidavit also decla red that
the closest “Snow and Ice Event” that occurred before appellant’s fall happened two days
before, and the custodial staff laid down 110 pounds of “ice melt” around the ECC to
address any accumulation. This unrebutted evidence can only support the conclusion that,
even if the ice was caused by some spectator spilling a water bottle the day of appellant’s
fall, respondent did not have actual or constructive notice of the accumulation. 2

2 Appellant asserted at oral argument that there is a genuine issue of material fact about
whether the ice she slipped on forme d after the storm on January 29. This argument is
forfeited because appellant did not raise it in her initial brief and new theories cannot be
raised at oral argument. See State v. Tracy , 667 N.W.2d 141, 145 (Minn. App. 2003)
(holding in part that a party cannot raise a new argument at oral argument that had not been
briefed). Even if appellant had raised the issue in her initial brief, while it does not take
much to raise a genuine issue of material fact, appellant needed to have some evidence to
contradict respondent’s evidence that 110 pounds of ice melt was applied to the sidewalks
around the ECC and cleared the area of ice. See DLH, Inc., 566 N.W.2d at 71 (“[T]here
must be evidence on which the jury could reasonabl y find for the” nonmoving party)

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Appellant cannot meet the requirement in § 335(a)(i) that the artificial condition be
one that respondent created or maintained, and therefore cannot show that an exception to
statutory recreational-use immunity could apply.3
Affirmed.

(quotation omitted) (emphasis added)). And even if it were true that the ice formed on
January 29, appellant has also not submitted evidence that respondent knew of, created, or
maintained the condition, as would be required to defeat respondent’s statutory immunity.
3 Because we affirm the district court’s grant of summary judgment on the grounds that
statutory recreational -use immunity applies, we need not address appellant’s additional
argument that the district court erred when it applied the “mere slipperiness” rule.