Mary Ellen Spinler, et al., Appellants,

This opinion will be unpublished and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
A19-1782

Mary Ellen Spinler, et al.,
Appellants,

vs.

City of Brownsdale,
Respondent.

Filed June 15, 2020
Affirmed
Rodenberg, Judge

Mower County District Court
File No. 50-CV-18-48

Brandon V. Lawhead, Donaldson V. Lawhead, Lawhead Law Offices, Austin, Minnesota
(for appellant)

Paul A. Merwin, League of Minnesota Cities, St. Paul, Minnesota (for respondent)

Considered and decided by Connolly, Pr esiding Judge; Worke, Judge; and
Rodenberg, Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellants Mary and Richard Spinler a ppeal from the district court’s summary
judgment dismissing their personal-injury and loss-of-consortium claims arising from
injuries suffered by Ms. Spin ler when she fell on responde nt City of Brownsdale’s

2
sidewalk. Because the defect in the sidewalk that appellants claim caused Ms. Spinler’s
fall was open and obvious, we affirm.
FACTS
On December 23, 2011, Ms. Sp inler sustained injuries after she tripped and fell on
a city sidewalk outside of the Brownsdale Post Office. Ms. Spinler and her husband,
Mr. Spinler, sued the city for personal injuries and loss of consortium. They alleged that a
hole or imperfection in the city sidewalk caused Ms. Spinler’s fall. Ms. Spinler now lives
in a long-term care facility be cause she suffers from an incu rable brain disease unrelated
to the fall. She did not appear for her noted deposition because of this medical condition.
At his deposition, Mr. Spinler testified that he was not with his wife when she fell.
He does not believe that anyone other than his wife witnessed the accident. Mr. Spinler
testified that, when Ms. Spinler arrived at the couple’s home after she fell, he saw “blood
and a cut in her eyebrow.” He further testified that he asked his wife what happened, and
she told him that she had stopped at the post office on her way home from work at
approximately 2:30 p.m. As she walked toward the entrance of the building, she “caught
[her] toe on [a] crater” in the sidewalk an d fell against the side of the post office.
Ms. Spinler then retrieved her mail and drov e home. Upon seeing his wife’s injuries,
Mr. Spinler took her to see a doctor.
Mr. Spinler further recalled at his de position that the weather on December 23,
2011, was cold, but that it was not snowing. According to Mr. Spinler, Ms. Spinler was
unable to see the hole in the sidewalk because weeds had grown up around it. However,
Mr. Spinler indicated that Ms. Spinler did no t specifically tell him where the weeds were

3
in relation to the hole in the sidewalk. At some point shortly after the accident, Mr. Spinler
took photographs of the hole in the sidewalk.1 A hole is readily visible in the photographs,
is at or near the edge of the sidewalk, and does not appear to be covered by grass or weeds.
Mr. Spinler also testified that the hole in the sidewalk was vi sible to him when he visited
the scene of the accident shortly after his wife’s fall.
Mr. Spinler testified at his deposition th at his wife’s current medical condition
results from “a Parkinson’s-type disease” that renders her unable speak. He testified that,
“as far as carrying on a conversation, it’s nonexistent.” Mr. Spinler testified that, when he
visits his wife, “she’ll mumble something, and I try to get it out of her what she said, and I
don’t get anything.” When asked if Ms. Spinler can write, Mr. Spinler responded, “no.”
The city moved for summary judgment, asserting that appellants were unable to
establish the proximate cause of Ms. Spinler’s injuries because she is unable to testify about
what happened and, alternatively, asserting that the city had no duty to protect Ms. Spinler
from the open and obvious condition of the sidewalk.
As part of their response to the city’s motion for summary judgment, appellants filed
five affidavits, including one signed by Ms. Spinler. Ms. Spinler’s affidavit states, in
pertinent part, that when she was approach ing the post office on December 23, 2011, she
“walked over a narrow strip of grass. The grass was tall, and it was growing up, so I

1 Mr. Spinler stated in an affidavit submitte d to the district court that he took the
photographs three weeks after the incident. At his deposition, Mr. Spinler testified that he
took the photographs one or tw o days after his wife’s fall, consistent with the city’s
argument to the district court and on appeal. Regardless of the precise timing, there is no
dispute that the photographs accurately depict the condition of the sidewalk in the area of
Ms. Spinler’s fall.

4
couldn’t see the crater in the sidewalk that caused me to fall. I caught my toe on the crater,
and I couldn’t see the crater because of the ta ll grass/weeds in the crater [that] concealed
it.” The affidavit states that “I didn’t know the crater was there because the sidewalk
around the Brownsdale US Post Office had been replaced a couple of times within the last
2 years of the fall, so I didn’t know why they didn’t fix everything.”
Another of the affidavits produced by appellants was that of Mr. Spinler, who stated
that his wife told him that she “walked over [a] narrow strip of grass,” and that “she caught
her toe in the crater, which ha d about a 2 inch lip , but the depth was obscured because of
the grass/weeds in the crater concealing it.” The three other affidavits include one from a
paralegal attesting that Ms. Spinler was of so und mind when she exec uted her affidavit,
another from a former paralegal of appellants’ counsel concerning statements provided to
a claims adjuster working on behalf of the city, and one from appellants’ counsel attesting
to the accuracy of the attached transcript of Mr. Spinler’s deposition testimony.
The district court granted the city’s motion for summary judgment and dismissed
appellants’ complaint with prejudice. It dete rmined that appellants would not be able to
provide admissible testimony at trial to prove the essential elements of their claim, and that
there were therefore no genuine disputes of material fact and the city was entitled to
judgment as a matter of law.
This appeal followed.
D E C I S I O N
Appellants argue that the district cour t erred by granting the city’s motion for
summary judgment based on the reasoning that appellants will be un able to prove the

5
proximate-cause element of their negligence claim because the only witness to the fall is
now unable to testify at tria l. Respondents cont end that the city is entitled to summary
judgment both because appellants failed to present admissible evidence of proximate cause
and because the hole in the sidewalk was open and obvious.
The district court shall grant a summary-j udgment motion “if the movant shows that
there is no genuine issue as to any material fact and the movant is entitled to judgment as
a matter of law.” Minn. R. Civ. P. 56.01. “A party need not show substantial evidence to
withstand summary judgment.” Carlson v. SALA Architects, Inc. , 732 N.W.2d 324, 327
(Minn. App. 2007) (quotation omitted), review denied (Minn. Aug. 21, 2007). Instead, to
defeat a summary-judgment motion, the nonmoving party must present sufficient evidence
to allow a reasonable person to find in its favor. Id. On a motion for summary judgment,
the district court must not weigh the evid ence or make factual determinations. DLH, Inc.
v. Russ, 566 N.W.2d 60, 70 (Minn. 1997). “[T]here must be evidence on which the jury
could reasonably find for the nonmoving party.” Id. at 71 (quotation omitted).
Appellate courts review de novo whether th ere is any genuine issue of material fact
and whether the district court erred in its application of the law. STAR Ctrs., Inc. v. Faegre
& Benson, L.L.P., 644 N.W.2d 72, 77 (Minn. 2002). In doing so, the reviewing court must
view the evidence in the light most favorable to the party against whom judgment was
granted. Id. at 76-77.

6
Ms. Spinler’s affidavit creates a genuine issue of material fact concerning the
proximate cause of Ms. Spinler’s fall.

The district court based its summary adjudication dismissing appellants’ complaint
on its determination that appellants could not prove the causation element of this
negligence claim because of Ms. Spinler’s inability to testify at trial about how she fell.
Appellants challenge this approach, arguing that “[Ms.] Spinler’s Affi davit . . . raises a
genuine issue of material fact, which prec ludes summary judgment on the grounds that
[appellants are] unable to establish proximate cause.”
Negligence is the failure to exercise the care that persons of ordinary prudence
usually exercise under similar circumstances. Domagala v. Rolland, 805 N.W.2d 14, 22
(Minn. 2011). The elements of a negligence claim are “(1) the existence of a duty of care,
(2) a breach of that duty, (3) an injury, and (4) that the breach of the duty was a proximate
cause of the injury.” Id.
The district court’s summary-judgment order focused on whether appellants would
be able, in light of Ms. Spinler’s medical cond ition unrelated to her fall, to prove that the
alleged sidewalk imperfection was the proximate cause of her injury. “In the context of
general tort liability, such as negligence actions, [the supr eme court] long ago defined a
proximate cause of a given result as a materi al element or a substantial factor in the
happening of that result.” Frederick v. Wallerich, 907 N.W.2d 167, 179-80 (Minn. 2018)
(quotation omitted). Proximate cause is generally a question of fact for the jury. Wartnick
v. Moss & Barnett, 490 N.W.2d 108, 115 (Minn. 1992). However, when reasonable minds

7
can arrive at only one conclusion, proximate cause may be decided by the court as a matter
of law. Id.
The district court seems to have accep ted as a fact that Ms. Spinler cannot
communicate in any way, would be unable to e ffectively testify at trial, and that these
conditions would continue without change and could not be accommodated by presenting
Ms. Spinler’s testimony through an interpreter or by other means. It therefore concluded
that appellants cannot establish that the hole in the sidewalk was the proximate cause of
her injuries. But in the c ontext of this motion for summa ry judgment, the question is
whether the record as cons tituted—including the affidavits produced by appellants in
response to the summary-judgment motion—cre ate a genuine issue of material fact
concerning whether the hole in the sidewalk caused Ms. Spin ler to fall. Ms. Spinler’s
affidavit states that she fell after she “caught [her] toe on th e crater.” Another affidavit
attests to Ms. Spinler’ s competency when she signed her affidavit. For purposes of the
summary-judgment motion, and viewing the reco rd in the light most favorable to the
nonmoving party, these affidavits suffice to create a genuine issue of material fact
concerning whether the condition of the sidewalk was the proximate cause of Ms. Spinler’s
fall and resulting injury. Therefore, the district court’s summary adjudication of proximate
cause was premature.2

2 Appellants present several intriguing alternative bases on which the record as constituted
might support a finding of fact that the hole in the sidewalk caus ed Ms. Spinler’s fall,
including that Ms. Spinler’s statements to he r husband shortly after the fall were excited
utterances and therefore admissible hearsay evidence under Minn. R. Evid. 803(2), that her
statements to the claims ad juster working on behalf of the city would similarly be
admissible hearsay evidence at trial as a business record under Minn. R. Evid. 803(6), and

8
The record establishes no genuine issue of material fact concerning whether the hole
in the sidewalk was open and obvious.

An appellate court can affirm a grant of summary judgment on “alternative theories
presented but not ruled on at the district court level.” Nelson v. Short-Elliot-Hendrickson,
Inc., 716 N.W.2d 394, 402 (Minn. App. 2006), review denied (Minn. Sept. 19, 2006); see,
e.g., Winkler v. Magnuson , 539 N.W.2d 821, 827 (Minn. App. 1995) (addressing an
“alternative theory presen ted to, but not ruled on by, the court below”), review denied
(Minn. Feb. 13, 1996). We do so here because the record as constituted supports the district
court’s summary dismissal of appellants’ claims on an alternative ground.
The city argued to the district court and continues to argue on appeal that “[e]ven if
appellants were able to present admissible ev idence that the triangular gap in the city
sidewalk proximately caused their damages,” the city is still entitled to summary judgment
because the hole in the sidewalk was open and obvious.
There is no common-law duty to warn a person of open and obvious risks. Baber
v. Dill, 531 N.W.2d 493, 496 (Minn. 1995) (stating that “no one needs notice of what he
knows or reasonably may be expected to know” (quotation omitted)). In determining
whether a condition is “obvious,” courts use an objective test: “the question is not whether

that her statements to her treating doctor about how she fell would fall within the medical-
records exception to the rule against hearsay under Minn. R. Evid. 803(4). Appellants also
maintain on appeal that some or all of the out-of-court statements of Ms. Spinler should be
admitted under the “catchall” hearsay exception under Minn. R. Evid. 807. But we need
not reach these exquisite evidentiary questions because, in light of Ms. Spinler’s affidavit
and viewing the evidence in the light most favorable to appellants as the nonmoving parties,
that affidavit is sufficient to create a ge nuine issue of material fact on the causation
question.

9
the injured party actually saw the danger, but whether it was in fact visible.” Louis v. Louis,
636 N.W.2d 314, 321 (Minn. 2001). “[A] condition is not ‘obvious’ unless both the
condition and the risk are apparent to and would be recognized by a reasonable [person]
. . . exercising ordinary percepti on, intelligence and judgment.” Id. (quotation omitted).
Whether a condition presents a known or obvio us danger is ordinarily, but not always, a
question of fact. Olmanson v. LeSueur County , 693 N.W.2d 876, 881 (Minn. 2005); see
Bisher v. Homart Dev. Co. , 328 N.W.2d 731, 733-34 (Minn. 1983) (holding that a
landowner did not breach a duty of care when the plaintiff tripped over a planter in a
shopping mall because the planter was “obvious” and in “plain view”).
Neither the district court in its summa ry-judgment order nor appellants on appeal
address whether the hole in the sidewalk is open and obvious. But the city clearly preserved
the issue. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (providing that appellate
courts may consider issues presented to th e district court). The record includes
photographs of the scene of Ms. Spinler’s fall, taken shortly after the incident and depicting
the condition of the sidewalk on the date of the fall. Those photographs clearly show the
complained-of defect in the si dewalk. And the city argued to the district court that the
imperfection in the sidewalk was open and obvious, relieving it of any duty to warn of the
defect.
Even viewing the facts in the light most favorable to appellants, the record reveals
no fact question concerning whether the hole in the sidewalk was open and obvious. It
was. Ms. Spinler fell on December 23, and the photographic evidence shows no growing
vegetation at the time of the fall. The hole or imperfection in the sidewalk was clearly

10
evident to anyone who would ha ve looked at the sidewalk . The photographs taken by
Mr. Spinler do not show that the sidewalk was covered with any snow or ice—and
appellants make no claim that the city neglig ently failed to remove snow or ice from the
sidewalk. Importantly, Mr. Spinler agreed that when he vis ited the scene of the accident
shortly after his wife’s fall, the hole in the sidewalk was visible when he simply looked at
it.
Ms. Spinler’s affidavit asserts that she di d not see the imperfection in the sidewalk.
But not seeing a defect and bein g unable to see it are very diffe rent things. The record is
devoid of evidence concerning where Ms. Spinler was lookin g at the time she fell. The
record is undisputed that th e accident occurred at approxima tely 2:30 p.m., when there
would have been sufficient afte rnoon light to see the sidewalk and the imperfection in it.
Ms. Spinler was not in any hurry at the time she sustained her inju ries and had time to
notice the hole had she looked at the sidewalk . The hole in the sidewalk was open and
obvious.
Similar to the facts in th is case, the plaintiff in Johnson v. State failed to look down
as she walked over a sidewalk and tripped as a result. 478 N.W.2d 769, 770 (Minn. App.
1991), review denied (Minn. Feb. 27, 1992). In that ca se, the plaintiff sued the state for
failing to repair a raised sidewalk joint on a sidewalk leading to a travel information center
located at a rest stop. Id. The estimated height of the rise was “less than an inch to an inch
and one-half.” Id. at 770-71. This court held that the district court properly granted
summary judgment because, among other considerations, the defect in the sidewalk was a

11
visible condition. Id. at 773. Specifically, we noted that “[w]hen a brief inspection would
. . . reveal[] the condition, it is not concealed.” Id.
Applying this same reasoning, summary j udgment is proper here. Even a cursory
downward glance would have revealed the hole in the sidewalk. Nothing precluded
Ms. Spinler from seeing the open and obvious defect in the sidewalk. Because the defect
was clearly visible to Mr. Spinler when he visited the scene after Ms. Spinler sustained her
injuries, because it is clearly evident in photographs taken shortly after the incident, and
because any out-of-season vegetative growth did not conceal the defect, the city owed no
duty to persons using the sidewalk to warn of this open-and-obvious sidewalk defect.
Although we disagree with the district c ourt’s reasoning in support of the grant of
the city’s motion for summary judgment, the summary dismissal of appellants’ claims was
nevertheless proper on an alternative legal basis. We therefore affirm the district court.
Affirmed.