Wade S. Nukala, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0720

Wade S. Nukala,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed March 15, 2021
Affirmed
Gaïtas, Judge

St. Louis County District Court
File No. 69VI-CV-19-308

Scott Wilson, Scott Wilson Law Firm, PLLC, Minneapolis, Minnesota; and

James W. Balmer, Falsani, Balmer, Peterson & Balmer, Duluth, Minnesota (for appellant)

Keith Ellison, Attorney General, Kathryn Iv erson Landrum, Julianna F. Passe, Assistant
Attorneys General, St. Paul, Minnesota (for respondent)

Considered and decided by Gaïtas, Pres iding Judge; Connolly, Judge; and Reyes,
Judge.
NONPRECEDENTIAL OPINION
GAÏTAS, Judge
Appellant Wade Nukala challenges the summary-judgment dismissal of his
negligence claim against respondent Minnesota Department of Natural Resources (DNR)
arising out of a snowmobile accident on a state trail. Nukala asserts that the district court

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erred by concluding that his claim is barred by recreational-use immunity under Minnesota
Statutes section 3.736, subdivision 3(i) (2020). He argues that there are genuine issues of
material fact regarding whether the trespa sser exception to recreational-use immunity
applies. Because there are no genuine issues of material fact barr ing the application of
recreational-use immunity, we affirm.
FACTS1
The accident
On a mostly sunny morning in February 2018, Nukala was snowmobiling with his
adult son on the Arrowhead Trail, which is a state trail in northern Minnesota maintained
by the DNR for public recreational use. Nukala was traveling north at about 50 miles per
hour, which was the posted speed limit, and his son was ahead of him and out of sight.
After rounding a curve, Nukala saw a snow berm 2 ahead, located where the
Arrowhead Trail intersected a private driveway. On the other side of the driveway, there
was a second berm, with both berms running perpendicular to the trail. The berms were at
least one-foot high, and Nukala believed they were caused by earlier plowing of the
driveway. Nukala also saw a stop sign mark ing the intersection of the Arrowhead Trail
and driveway. The distance be tween the curve and the stop sign, based on photographs

1 The facts are derived from the summary-judgmen t record and are presented in the light
most favorable to Nukala. See STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d
72, 76 (Minn. 2002).

2 The parties use the term “berm” to refer to a mound of snow.

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taken later, was about 200 to 250 feet. Nukala’s son had also observed the berms and stop
sign upon rounding the curve, but continued without stopping and “jumped” the berms.
When Nukala initially saw the first berm, he slowed down and stood up slightly to
get a better view. He then de cided that he did not have tim e to stop before reaching the
berm, so he accelerated and attempted to jump it. He was unsuccessful and crashed his
snowmobile, which caused injuries, including to his back.
Immediately after the crash, another sn owmobiler approached, jumped the berm,
and stopped. That snowmobiler ran back up the trail to signal his approaching companion.
The two snowmobilers then assisted Nukala. Meanwhile, Nukala’s son eventually circled
back and found Nukala. The two rode thei r snowmobiles back to the son’s house, and
Nukala later went to the emergency room.
DNR trail maintenance and policies
Some intersections along th e Arrowhead Trail are marked not only by stop signs,
but also by “stop ahead” signs in advance of the stop signs. On the day of the accident,
there was no “stop ahead” sign before the inte rsection with the priv ate driveway on the
northbound side of the trail, where Nukala was traveling. But the southbound side of the
trail did have a “stop ahead” sign before the intersection. 3 The DNR Maintenance and
Grooming Manual, which describes policies pe rtaining to sign placement, requires stop
signs to mark trail intersections with traveled public roads or railroads. “Stop ahead” signs

3 The DNR notes that, although it does not concede the absence of a sign, for the purposes
of the summary-judgment motion and viewing the evidence in the light most favorable to
Nukala, there was no northbound “stop ahead” sign present on the day of the accident.

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must also be placed at least 300 feet before tr aveled public roads or railroads. Stop signs
and “stop ahead” signs may also be used in other circumstances, such as for private roads,
at the discretion of DNR staff. According to DNR staff, “stop ahead” signs are not often
placed at infrequently used, nonpublic intersections. DNR policy discourages the overuse
of signage, as the presence of too many signs can result in trail users becoming desensitized
and ignoring them.
During the snowmobiling season, DNR tra il groomers groom each segment of the
Arrowhead Trail twice per week. Trail groo mers also monitor wh ether necessary trail
signage is in place. Accord ing to DNR records and tes timony from the trail groomer
responsible for the relevant segment of trail, the intersection where the accident occurred
had been groomed within the last two days. The groomer also testified that if he became
aware of any snow berms on his stretch of tra il, he would clear them immediately. He
believed he had cleared snow berms at the private driveway only a few times over the past
ten or so years.
The groomer was not aware of any missing signage near the intersection and, before
Nukala’s accident, the DNR had not received any citizen complaints or reports of problems
related to the intersection. DNR staff believed the private driveway to be infrequently used
or plowed in the winter. The DNR does not plow private driveways.
This lawsuit
Nukala sued the DNR, alleging that the DNR was negligent in failing to adequately
warn snowmobilers about the intersection be tween the Arrowhead Trail and the private
driveway. After the close of discovery, th e DNR moved for summary judgment, arguing

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that Nukala’s claim is barred by recreationa l-use immunity, vicarious official immunity,
and statutory immunity, and asserting that no ge nuine issue of material fact exists as to
proximate causation. The district court gran ted summary judgment in favor of the DNR
on the basis of recreational-use immunity, a nd declined to reach the DNR’s alternative
arguments.
This appeal follows.
DECISION
Appellate courts “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). A moving party is entitled to summary judgment 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. “Summary judgment is appropriate
when a governmental entity establishes that its actions are immune from liability.” In re
Alexandria Accident of Feb. 8, 1994 , 561 N.W.2d 543, 546 (Minn. App. 1997), review
denied (Minn. June 26, 1997). The applicability of governmental immunity is a matter of
law that is reviewed de novo. Johnson v. State, 553 N.W.2d 40, 45 (Minn. 1996).
The district court determin ed that the DNR is immune from liability in this lawsuit
based on the recreational-use immunity st atute, Minnesota Statutes section 3.736,
subdivision 3(i). The recreational-use imm unity statute provides that the State of
Minnesota and its agencies are immune from liability for losse s “arising from the
construction, operation, or maintenance of the outdoor recreation system . . . except that

6
the state is liable for conduct that would en title a trespasser to damages against a private
person.” Id. Recreational-use immunity is intended to preserve Minnesota’s resources for
outdoor recreational opportunities by lim iting the state’s tort liability. Green-Glo Turf
Farms, Inc. v. State, 347 N.W.2d 491, 495 (Minn. 1984); see Ariola v. City of Stillwater ,
889 N.W.2d 340, 354 (Minn. App. 2017) (discussing trespasser exception to recreational-
use immunity), review denied (Minn. Apr. 18, 2017). In limiting the state’s potential
liability for injuries that ma y occur in Minnesota’s expans ive outdoor recreation system,
“the legislature weighed the policies behi nd the Outdoor Recreation Act against the
potential cost of compensating injuries that unf ortunately and tragically may occur in the
outdoor recreation system.” Zacharias v. Minn. Dep’t of Nat. Res., 506 N.W.2d 313, 321
(Minn. App. 1993) (citation omitted), review denied (Minn. Nov. 16, 1993); see also
Green-Glo Turf Farms, Inc., 347 N.W.2d at 494-95 (explaining that “[n]atural conditions
are to be expected in a recreational area, and the owner should not be required to patrol the
area or to make it safe for those who enter upon it”).
The Arrowhead Trail is designated a st ate trail by Minnesota Statutes section
85.015, subdivision 13(a)(3) (20 20), and qualifies as part of the “outdoor recreational
system.” Minn. Stat. § 86A.04 (2020). Nukala sued the DNR for negligence, alleging that
the DNR failed to adequately warn snowm obilers about the intersection between the
Arrowhead Trail and the private driveway. His claim accordingly falls squarely within the
recreational-use immunity statute, and the par ties agree that the clai m fails as a matter of
law unless the trespasser exception refere nced in that statute applies. See Minn. Stat.
§ 3.736, subd. 3(i).

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In interpreting the trespasser exception re ferenced in the recreational-use immunity
statute, Minnesota courts have adopted the Restatement (Second) of Torts § 335 (1965).
Sirek by Beaumaster v. State, Dep’t of Nat. Res. , 496 N.W.2d 807, 810-12 (Minn. 1993).
As a general rule, landowners do not owe a duty of care to trespassers. Id. at 809. Under
the Restatement’s trespasser exception, “a la ndowner will be liable only for failing to
exercise reasonable care to warn trespassers about hidden, artificia l dangers created or
maintained by the landowner.” Id. at 810 (summarizing the Restatement (Second) of Torts
§ 335). The landowner is not under a duty to trespassers to remove such conditions, but
instead to give “adequate warning.” Id. Accordingly, to prevail under the trespasser
exception to recreational-use immunity, a plaintiff “must establish that injury or death was
caused by (a) a concealed or hidden artificial condition that was (b) created or maintained
by the [defendant], and that (c) the [defendant] knew that the condition was likely to cause
death or serious bodily harm.” Ariola, 889 N.W.2d at 354.
The district court granted the DN R’s summary-judgment motion because it
determined that Nukala could not establish th at his injury was caused by a condition that
was hidden or concealed, that the DNR had knowledge the condition was likely to cause
death or serious bodily harm, or that the DNR failed to exercise reasonable care in warning
about the risk. Nukala challenges each of these determinations on appeal.
As an initial matter, Nukala argues that th e “condition” that caused his injury was
the intersection of the Arrowhead Trail and th e private driveway. He asserts that the
intersection “is a hazard because of activity at the intersection that foreseeably interferes
with traffic on the trail—like plowing.” In other words, he argues that the intersection

8
itself is a dangerous conditio n because it creates the possi bility of snow berms that
endanger snowmobilers.
The DNR urges us to reject Nukala’s cont ention that the intersection is the condition
that caused his injury, as his own deposition testimony identifies the snow berm as the
cause of the accident. The district court, for its part, noted that Nukala’s identification of
the dangerous condition at issue has shifted during this lawsuit; Nukala initially identified
it as either the snow berm or the lack of a “stop ahead” sign before settling on the
intersection. The district court applied th e trespasser-exception analysis as Nukala
requested, using the intersection as the condition, but noted that the argument would fail if
the berm were the condition because it was neither “concealed nor artificial.”
We are not persuaded that the Arrowhea d Trail’s intersection with the private
driveway was the “condition” that caused Nukala’s injury for the purposes of applying the
trespasser-exception analysis. Nukala a sserts that the cras h occurred when he
unsuccessfully tried to “jump” the snow berm, which he alleges was not visible in time to
stop. The berm accordingly seems to be the “condition” that caused the injury.
When we apply the trespasser-exception an alysis to the berm as the condition,
Nukala’s argument necessarily fails. Nothing in the record suggests that the DNR “created
or maintained” the snow berm. Ariola, 889 N.W.2d at 354. To the contrary, the trail
groomer assigned to the intersection testified that he removes snow berms “immediately”
once he becomes aware of them. And Nukala himself testified that he believed the berm
was caused by the plowing of the private driv eway. DNR personnel do not plow private
driveways. There is also no indication that the DNR had any knowledge of the snow berm

9
before the accident because the record shows that the intersection had been groomed within
the last two days and any berm s would have been removed. Accordingly, even viewing
the evidence in the light most favorable to Nukala, there are no genuine issues of material
fact as to the creation and knowledge elem ents of the trespasser exception, and the
exception does not apply as a matter of law. See STAR Ctrs., Inc. , 644 N.W.2d at 76;
Ariola, 889 N.W.2d at 354-55, 360.
But even if the intersection—rather than the berm—can properly be considered the
condition that caused Nukala’s injury, the district court co rrectly determined that no
genuine issue of material fact exists as to whether the trespasser exception to recreational-
use immunity applies. Again, to invoke the trespasser exception and overcome the DNR’s
recreational-use immunity, Nukala needed to point to facts that show that the intersection
was “(a) a concealed or hidden artificial cond ition that was (b) created or maintained by
the [DNR], and that (c) the [DNR] knew that the condition was likely to cause death or
serious bodily harm.” Ariola, 889 N.W.2d at 354. We focus our analysis on the third
element—that the DNR knew th e condition was likely to cause death or serious bodily
harm—as we conclude that it is dispositive. Because Nukala must prove each element to
show that the trespasser ex ception applies, and because we may affirm a summary-
judgment award if it can be sustained on an y ground, we need not reach the other two
elements. See id. at 353.
The third element of the trespasser-excep tion to recreational-use immunity contains
two prongs. Under the first, Nukala must show that the intersection was in fact likely to

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cause death or serious bodily harm, and under the second, he must show that the DNR had
actual knowledge of that likelihood. See id. at 354-55. We address each prong in turn.
Conditions likely to cause death or serious bodily harm “generally have inherently
dangerous propensities, such as high voltage electrical wire.” Stiele ex rel. Gladieux v.
City of Crystal, 646 N.W.2d 251, 255 (Minn. App. 2002) (quotation and citation omitted).
It is not enough that the condition “might” ca use serious bodily harm; such harm must be
likely. Id. “The injury suffered does not define the requirement. Otherwise, any artificial
condition ‘could be’ likely to cause death or serious bodily harm under the right
circumstances.” Johnson v. State, 478 N.W.2d 769, 773 (Minn. App. 1991), review denied
(Minn. Feb. 27, 1992).
Nukala argues that the intersection was lik ely to cause death or serious bodily harm
based on “logic alone.” He asserts that any intersection “may, at varying intervals, interfere
with traffic, and thus presents a danger of death or seriously bodily harm.” Nukala argues
that this is especially true when the traffic on the Arrowhead Trail consists of fast-moving
snowmobiles. He also asserts that obstr uctions of traffic—such as snow berms—
necessarily occur at intersections.
The DNR responds that Nukala cannot sh ow that the Arrowhead Trail’s intersection
with the rarely used private driveway created a condition likel y to cause death or serious
bodily harm. Additionally, the DNR argues that Nukala makes no clear connection
between the presence of intersections and the possibility of snow be rms, which were the
cause of the accident. The DNR points out that there is no record evidence showing that a
snow berm is a common condition at intersecti ons, nor is there evidence that snow berms

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at intersections predictably lead to death or serious bodily harm. The district court agreed
with the DNR, noting that snowmobile trai ls “commonly and necessarily intersect with
private driveways” and that Nukala had not presented evidence that these types of
intersections are likely to cause death or serious bodily harm.
Based on our review of the record we agree—Nukala has not provided any specific
evidence suggesting that the intersection be tween the Arrowhead Trail and the private
driveway posed a likelihood of death or serious bodily harm. A party opposing summary
judgment must offer more than “general asse rtions” to show a genuine issue of material
fact. Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845, 848 (Minn. 1995). The
party “must extract specific, admissible facts from the voluminous record and particularize
them for the [court].” Kletschka v. Abbott-Northwestern Hosp., Inc., 417 N.W.2d 752, 754
(Minn. App. 1988), review denied (Minn. Mar. 30, 1988). Nukala’s assertions about the
dangers of trail intersections with private driv eways are mere conjecture. In contrast, the
unrefuted record evidence suggest s that the private driveway at issue was rarely used or
plowed in the winter. The trail groomer respons ible for that section of the trail testified
that, to his recollection, snow berms had only appeared near this lo cation a few times in
the past ten-plus years. A nd the DNR had not received any citizen complaints or reports
of problems connected to the private driveway.
Moreover, Nukala does not point to evid ence suggesting that snow berms like the
one at issue here—assuming, as he suggest s, that berms are a common occurrence at
intersections—are likely to cause death or serious bodily harm. At most, Nukala has shown
that intersections and their accompanying berms generally create a possibility of death or

12
serious bodily harm. But the mere possibility that a death or serious bodily harm could
result is not enough to satisfy the trespasser exception; such an outcome must be likely.
Stiele, 646 N.W.2d at 255. Accordingly, the district court correctly concluded that there is
no genuine issue of material fact as to wh ether the intersection between the Arrowhead
Trail and the private driveway was a condition likely to cause death or serious bodily harm.
Even if the intersection wa s a condition likely to cause death or serious bodily harm,
Nukala must also show that the DNR had actual knowledge 4 of the dangerous condition.
Ariola, 889 N.W.2d at 356. It is not enough th at the defendant have general knowledge
about circumstances surrounding an accident; the defendant must specifically have “actual
knowledge of a condition that is likely to cause death or serious bodily injury.” Id. at 357.
And “[t]he lack of complaints has been held to be suffici ent to demonstrate lack of
knowledge.” Prokop v. Indep. Sch. Dist. No. 625 , 754 N.W.2d 709, 715 (Minn. App.
2008).
Nukala contends that the district court fa iled to construe all reasonable inferences
in his favor in regards to evidence of the DNR’s knowledge, and he asserts that a genuine
issue of material fact accordingly exists for trial. Specifically, to demonstrate the DNR’s

4 Nukala asks us to overrule our recent precedent and adopt a constructive-knowledge, as
opposed to actual-knowledge, standard for the trespasser exception. In Ariola, we surveyed
precedent on the knowledge requ irement and found that six p ublished cases of this court
applied an actual-knowledge requirement, wh ile only one required just constructive
knowledge. 889 N.W.2d at 355. On the basi s of stare decisis, and because an actual
knowledge requirement comports with the text of the Restatement (Second) of Torts § 335,
we overruled the outlier case and solidified the actual-knowledge requirement. Id. at 356
(overruling Noland v. Soo Line R.R. , 474 N.W.2d 4, 6 (Minn. App. 1991)). We see no
compelling reason to now overrule Ariola and the cases it cites, and accordingly apply the
actual-knowledge requirement.

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knowledge, he points to a statement by the trail groomer that the groomer “expected” that
a “stop ahead” sign was present at the intersection. Nukala argues that this “expectation”
gives rise to a reasonable inference that the groomer thought that a “stop ahead” sign should
have been present, and therefore the inters ection was dangerous. He also points to a
statement by another DNR employee that snowmobilers often disregard stop signs, arguing
that this statement permits a reasonable inference that intersections that lack “stop ahead”
signs are dangerous.
The DNR responds that, wh ile the record evidence shows it had general knowledge
of the intersection, no evidence suggests it had actual knowledge that the intersection was
likely to cause death or serious bodily injury. According to the DNR, the record confirms
that its employees never received complaints or reports about the conditions at this
intersection, and believed the private driveway to be rarely used or plowed in the winter.
We agree with the DNR. While the record evidence that Nukala cites may permit a
reasonable inference that the DNR knew private driveways intersecting snowmobile trails
pose some degree of risk to snowmobilers, it does no t support a reasonable inference that
the DNR knew that the specific intersection—the intersection of the Arrowhead Trail and
the private driveway wher e the accident occurred—was likely to cause death or serious
bodily harm . Nukala has not offered more than “general assertions” as to the DNR’s
knowledge of the type of serious risk required by the trespasser exception. See Nicollet
Restoration, Inc. , 533 N.W.2d at 848; Stiele, 646 N.W.2d at 255. And again, the
undisputed evidence shows that the driveway was rarely used or plowed in the winter and
that the DNR had never received comp laints about this intersection. See Prokop , 754

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N.W.2d at 715. The district court correctly concluded that there is no genuine issue of
material fact as to whether the DNR knew that the intersection was likely to cause death or
serious bodily harm.
Again, because Nukala has failed to show a genuine issue of material fact as to the
third element of the trespasser exception to recreational-use immunity, and the record
conclusively shows that the DNR did not have actual knowledge that the intersection was
likely to cause death or serious bodily harm, we need not reach the other elements of the
exception. See Ariola, 889 N.W.2d at 353. Nukala’s cl aim that the trespasser exception
applies to the intersection fails as a matter of law.
In sum, the district court correctly de termined that Nukala cannot overcome the
recreational-use immunity protection affo rded to the DNR by reliance on the narrow
trespasser exception to that immunity. See Minn. Stat. § 3.736, subd. 3(i). The record
shows that the snow be rm that caused the accident was not created or maintained by the
DNR and that the DNR did not have any knowledge of it. See Ariola, 889 N.W.2d at 543.
And even if the intersection caused the acci dent, the record evidence does not permit a
reasonable conclusion that the intersection was likely to cause death or serious bodily harm
or that the DNR had actual knowledge of that likelihood. See id. The district court properly
granted summary-judgment dismissal of Nukala’s negligence claim.5
Affirmed.

5 The DNR argues that Nukala’s negligence claim is also barred by statutory immunity and
common-law official immunity, and that the ne gligence claim fails as a matter of law on
the causation and breach elements. Because we hold that recreational-use immunity bars
the claim, we need not consider those alternative arguments.