Ransford Frimpong, 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This opinion will be unpublished and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
A19-1508

Ransford Frimpong,
Appellant,

vs.

Taylor Ridge 26 LLC,
defendant and third-party plaintiff,
Respondent,

vs.

Taylor Ridge Condominium Association, Inc., et al.,
third-party defendants,
Respondents.

Filed April 27, 2020
Affirmed
Reyes, Judge

Scott County District Court
File No. 70-CV-18-13012

Ransford D. Frimpong, Shakopee, Minnesota (pro se appellant)

Karen Cote, David M. Werwie & Associates, St. Paul, Minnesota (for respondent Taylor
Ridge 26)

Timothy J. Leer, Brian M. McSherry, Lance D. Meyer, O’Meara, Leer, Wagner & Kohl,
P.A., Minneapolis, Minnesota (for respondents Taylor Ridge Co ndominium Association,
et al.)

Considered and decided by Bratvold, Presiding Judge; Reyes, Judge; and Bryan,
Judge.

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U N P U B L I S H E D O P I N I O N
REYES, Judge
Appellant challenges the district court’s grant of summary judgment to respondents
on appellant’s negligence claim based on a slip -and-fall accident on an icy sidewalk.
Appellant argues that the district court (1) misapplied Minn. Stat. § 515B.3-111 (2016) and
erred by (2) determining that the ice hazard was open and obvious and (3) determining that
the evidence did not sufficiently establish respondents’ notice of the dangerous condition.
We affirm.
FACTS
On January 27, 2018, appellant Ransford Frimpong slipped and fell on a sidewalk
at the Taylor Ridge Condominiums ( the premises). Frimpong is a tenant of a unit at the
premises owned by respondent Taylor Ridge 26, LLC (Taylor Ridge).
The premises’ unit owners are associated as third-party respondent Taylor Ridge
Condominium Association Inc. (the a ssociation). The association is responsible for
maintaining and repairing common elements w ithin the premises, including the sidewalk
connecting Frimpong’s unit and the dumpsters. The association contracted with third-party
respondent MBG Property Management Inc. (MBG) to maintain common elements ,
including the sidewalk.
On January 23, 2018, approximately 12 inches of snow fell on the sidewalk. On
January 24, MBG shoveled, sanded, and salted the sidewalk . On January 26, the
temperature rose to 42 degrees Fahrenheit, and n o precipitation fell between January 24

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and January 27 . Sometime overnight between January 26 and 27, the temperature fell
below 32 degrees, and ice formed on the sidewalk.
At approximately 6:30 a.m. on January 27, Frimpong left his unit to take his trash
to a dumpster at the other side of the premises. Frimpong walked across a sidewalk
“partially covered in ice,” where “some ice patches extended multiple feet and covered the
entire width of the sidewalk.” Frimpong slipped, fell, and injured his foot.
Frimpong originally sued Taylor Ridge, which responded by impleading the
association and MBG (collectively, respondents). Taylor Ridge then moved for summary
judgment to dismiss Frimpong’s claim with prejudice and sought to receive costs and
disbursements. The association and MBG also moved for summary judgment , asserting
the absence of a genuine iss ue of material fact .1 Frimpong then moved for summary
judgment, arguing the same grounds. The district court granted Taylor Ridge’s summary-
judgment motion , dismissing all claims against it with prejudice, granted third-party
respondents’ joint motion for summary judgment, and denied Frimpong’s motion for
summary judgment. This appeal follows.

1 The district court determined that third-party respondents consented to jurisdiction by
filing their motion, even though Frimpong never named them as parties. See Comm’r of
Nat. Res. v. Nicollet Cty. Pub. Water/Wetlands Hearings Unit , 633 N.W. 2d 25, 31 -32
(Minn. App. 2001) (acknowledging rule that party consents to jurisdiction by participating
in any step of the case which assumes jurisdiction exists ), review denied (Minn. Nov. 13,
2001).

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D E C I S I O N
I. Frimpong withdrew his argument that the district court erred by dismissing
claims against Taylor Ridge.

Frimpong initially argued Taylor Ridge ’s liability based on the district court
misquoting Minn. Stat. § 515B.3-111. In his reply brief, however, Frimpong “dismissed
as moot” this claim given that the district court interpreted third-party respondents’ joint
motion for summary judgment as consenting to jurisdiction. Because Frimpong withdrew
the issue, we need not address it. See Holland v. Dick Youngberg Chevrolet -Buick, Inc.,
348 N.W.2d 770, 771 (Minn. App. 1984) (declining to address issue appellant withdrew).
II. The district court properly granted third-party respondents’ motion for
summary judgment.

Frimpong argues that the district court improperly granted summary judgment
because (1) the ice was not open or obvious; (2) even if it was open and obvious,
respondents should have anticipated his harm; and (3) respondents had constructive notice
of the ice and failed to remove it within a reasonable amount of time, breaching their duty
to remove it. We disagree.
“We review the grant of summary judgment de novo to determine whether there are
genuine issues of material fact and whether the district court erred in its application of the
law.” Montemayor v. Sebright Prods., Inc., 898 N.W.2d 623, 628 (Minn. 2017) (quotation
omitted). We view the evidence in the light most favorable to the nonmoving party and
uphold summary judgment “against a party who fails to establish the existence of an
element essential to its case.” Rinn v. Minnesota State Agr. Soc. , 611 N.W.2d 361, 364

5
(Minn. App. 2000) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548,
2552 (1986)).
In a negligence action, a defendant is entitled to summary judgement if “the record
reflects a complete lack of proof on any of the four elements necessary for recovery: (1) the
existence of a duty of care, (2) a breach of that duty, (3) an injury, and (4) the breach of
that duty being the proximate cause of the injury. ” Louis v. Louis, 636 N.W.2d 314, 318
(Minn. 2001). Determining the existence of a duty presents a question of law, which we
review de novo. See id.; Doe 169 v. Brandon , 845 N.W.2d 174, 177 (Minn. 2014) . The
parties here dispute whether a genuine issue of material fact exists on the first two elements
of Frimpong’s negligence claim.
A. Frimpong slipped on open and obvious ice.
There is no common-law duty to warn a person of open and obvious risks. Baber
v. Dill, 531 N.W.2d 493, 4 96 (Minn. 1995). A condition is “obvious” when “both the
condition and the risk are apparent to and would be recognized by a reasonable
[person] . . . ‘exercising ordinary perception, intelligence and judgment.’” Louis, 636
N.W.2d at 321 (quoting Restatement (Second) of Torts § 343A cmt. b (1965)). “Generally,
whether a condition presents a known or obvious danger is a question of fact.” Olmanson
v. LeSueur Cnty ., 693 N.W.2d 876, 881 (Minn. 2005). But the nonmoving party must
produce specific, probative evidence that demonstrates the existence of a genuine issue of
material fact. DLH, Inc. v. Russ , 566 N.W.2d 60, 73 (Minn. 1997). A genuine issue of
material fact exists “when reasonable persons might draw different conclusions from the
evidence presented.” Id. at 69-70. But when “the material facts are undisputed and as a

6
matter of law compel only one conclusion,” summary judgment is appropriate. Dempsey
v. Jaroscak, 188 N.W.2d 779, 782 (Minn. 1971).
The Minnesota Supreme Court has provided examples of obvious dangers, such as
a low-hanging branch, a lake, a steep hill, a large planter, and a 20 -foot pool of water.
Baber, 531 N.W.2d at 496. By contrast, we have determined that a puddle covering a step
is not objectively visible because someone distractedly walking down the stairs would not
have seen it. Rinn, 611 N.W.2d at 364.
Here, Frimpong’s deposition testimony is the only evidence regarding the
sidewalk’s condition when he fell.2 He testified that he did not see the specific patch of
“black ice” that he stepped on. However, he did not dispute the objective visibility of the
ice. In fact, Frimpong testified that the light “was fine ,” that he saw ice covering large
portions of the sidewalk, and that he tried to avoid other clearly visible ice on the sidewalk
when he slipped. He stated, “Where I slipped was like the best part out of the worst. So I
was avoiding, you know, thick ice, and I, I tiptoed into somewhere that I thought was dry,
and that was not dry.” As described in the deposition testimony, t he long stretch of
sidewalk, several feet wide and partially covered in ice, is more analogous to an objectively
visible 20-foot pool of water than to a puddle covering a step. See Rinn, 611 N.W.2d at
364. Because Frimpong produced no specific, probative evidence genuinely disputing the
objective visibility of the ice, the district court did not err by determining that the icy
sidewalk presented an open and obvious danger to an objectively reasonable person.

2 Frimpong also submitted a picture of the walkway he slipped on, but this picture does not
represent the sidewalk condition at 6:30 a.m. on January 27, 2018.

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B. Frimpong fails to show a genuine dispute of material fact as to whether
respondents should have anticipated Frimpong’s harm despite the open
and obvious ice hazard.

Possessors of land like Taylor Ridge may be liable for harm caused by open and
obvious conditions if they should have anticipated the harm. Baber, 531 N.W.2d at 495-
96. A possessor may anticipate the harm if “to a reasonable [person] in his position the
advantages [to be gained] would outweigh the apparent risk.” Peterson v. W. T. Rawleigh
Co., 144 N.W.2d 555, 558 (Minn. 1966) (quotation omitted). Whether a possessor should
have anticipated the danger is generally a fact question. Olmanson, 693 N.W.2d at 881.
The supreme court has held that a possessor should anticipate the danger that an
obviously icy parking lot would pose to employees that needed to reach a loading dock as
part of their job. Peterson, 144 N.W.2d at 558. The supreme court contrasted this scenario,
when “the plaintiff’s live lihood was involved,” from that of a shopper who fell while
reaching for an item, holding that harm could not be expected in the latter circumstance
because the shopper “was under no such compulsion.” Jensen v. Allied Cent. Stores, Inc.,
167 N.W.2d 739, 741 (Minn. 1969).
Here, Frimpong provided no reason why respondents should have expected him to
negotiate the open and obvious danger. He provided no facts showing why his “livelihood
was involved” or why he was under “such compulsion” to navigate the icy sidewalk to take
out his garbage. See Jensen, 167 N.W.2d at 741. At most, Frimpong appears to contend,
for the first time on appeal, that the advantages of reducing garbage-related health hazards
outweigh the danger of slipping on ice. But Frimpong did not present this argument to the
district court, and we may not consider theories not presented to the district court. See

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Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). Because Frimpong does not assert the
necessity of throwing his trash away at 6:30 a.m., he has not established a genuine dispute
of material fact. See DLH, Inc., 566 N.W.2d at 69.
C. Frimpong provided no evidence that respondents had constructive
knowledge of or a reasonable opportunity to address the icy condition
before he slipped.

When a possessor like Taylor Ridge has not caused a dangerous condition, but has
actual or constructive knowledge of it, the possessor will be liable for it . Wolvert v.
Gustafson, 146 N.W.2d 172, 172 (Minn. 1966). The existence of a hazard for a sufficient
time establishes constructive knowledge. Id. A possessor does not have a duty to clear an
icy hazard until a reaso nable length of time passes since the ice formed. Mattson v. St.
Luke’s Hosp., 89 N.W.2d 743, 746 (Minn. 1958). “But speculation as to who caused the
dangerous condition, or how long it existed, warrants judgment for the [possessor].” Rinn,
611 N.W.2d at 365 (determining defendants did not have constructive notice of puddle that
existed on step for half an hour at most and could have formed only moments before
appellant slipped and fell). “Appellant has the burden of proving constructive knowledge.”
Id.
Frimpong bases his argument that respondents had constructive knowledge of the
daily thawing and freezing on text messages from the premises’ maintenance worker and
the unit owner. But Frimpong only provides communications from after he fell. Frimpong
offers no evidence to show that respondents had constructive knowledge of the icy
sidewalk condition before he fell or on the morning that he fell.

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Moreover, Frimpong provides no evidence that the ice existed long enough to
establish a duty to remove it. Respondents removed ice on January 24 , and the next
precipitation event did not occur until after Frimpong slipped and fell on January 27.
Frimpong provides no evidence of when the ice formed, and he may not meet his burden
by merely speculating. See Rinn, 611 N.W.2d at 365.
Frimpong argues that respondents had a reasonable opportunity to address the
condition by removing the ice in the early morning as opposed to in the early evening, as
they had been doing. Frimpong contends that determining whether their inspection was
reasonable is a question for the jury. But we need not reach this issue because Frimpong
failed to establish a genuine dispute of material fact on when the ice formed or whether
respondents had constructive knowledge of it. Even so, “[t]he exercise of reasonable care
for the safety of invitees requires neither the impossible nor the impractical.” Mattson, 89
N.W.2d at 745. Respondents cleared ice in the evenings , and Frimpong does not dispute
the impracticality of removing ice before 6:30 a.m.
Frimpong contends that a separate district court order from a later case involving
him and Taylor Ridge establishes that respondents breached their duty. In that case, the
district court ordered rent abatement based on inadequate snow and ice removal. However,
that case involves evidence and circumstances occurring after Frimpong’s fall.
Frimpong also contends that the sidewalk was structurally defective and , pointing
to evidence in the summary judgment record, that respondents acknowledged this defect
by sand-jacking the sidewalk at some point in the past. Frimpong relies on a letter written
from a past tenant asserting the slipperiness of the sidewalks when snow melted or when it

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rained and appearing to imply that t he sidewalk was structurally defective because of “a
dip” causing water to pool and freeze. This letter merely expresses a speculative technical
opinion unsupported by testimony, let alone expert testimony. See Minn. R. Evid. 701,
702 (requiring expert t estimony to support opinions based on technical knowledge).
Because we conclude that there are no genuine disputes of material fact as to whether
respondents should have anticipated the risk from the open and obvious danger or whether
respondents had constructive knowledge of the danger before Frimpong fell, we conclude
that the district court properly granted summary judgment to respondents.
III. We have stricken Frimpong’s argument on costs and disbursements.

We have previously granted third-party respondents’ motion under Minn. R. Civ.
App. P. 127 to strike Frimpong’s argument that costs and disbursements should not be
awarded to third-party respondents even if they are prevailing parties. Because Frimpong
did not present this argument to the district court, it is not properly before us for the first
time on appeal. See Nieszner v. St. Paul Sch. Dist. No. 625, 643 N.W.2d 645, 650 (Minn.
App. 2002) (holding that court of appeals will not hear appeal from taxation of costs not
presented to district court under Minn. R. Civ. P. 54.02).
IV. We have stricken Frimpong’s argument that the district court judge erred by
failing to recuse.

We have previously granted third-party respondents’ rule 127 motion to strike
Frimpong’s assertion of district court bias. Because Frimpong did not file a motion in
district court to remove the district court judge from any proceedings on remand due to

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alleged bias or prejudice, the issue is not properly before us for the first time on appeal.
See Minn. R. Civ. P. 63; Minn. R. Gen. Prac. 106.
Affirmed.