Paul Boyum, 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This opinion is nonprecedential except as provided by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
A20-1487

Paul Boyum,
Appellant,

vs.

Federal National Mortgage Association "Fannie Mae", et al.,
Respondents.

Filed June 7, 2021
Affirmed
Segal, Chief Judge

Isanti County District Court
File No. 30-CV-18-959

Dean M. Salita, Schmidt-Salita Law Firm, Minneapolis, Minnesota (for appellant)

Cara C. Passaro, Stich, Angell, Kreidler & Unke, P.A., Minneapolis, Minnesota (for
respondents)

Considered and decided by Segal, Chief Judge; Bjorkman, Judge; and Bratvold,
Judge.
NONPRECEDENTIAL OPINION
SEGAL, Chief Judge
Appellant challenges the district court’s grant of summary judgment dismissing his
negligence suit for injuries he sustained while touring a foreclosed home that had been
listed for sale. Appellant claims that the district court erred in determining that appellant
failed to establish a genuine issue of material fact concerning whether respondents had
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constructive knowledge of the alleged defect that led to appellant’s injury. Appellant also
asserts that the district court erred in determining that Minn. Stat. § 541.051 (2020), which
limits causes of action for injuries arising out of improvements to real property , was
applicable. Because we conclude that appellant failed to establish a genuine issue of
material fact on an essential element of his negligence claim, we affirm the grant of
summary judgment in favor of respondents.
FACTS
The following facts are undisputed. Appellant Paul Boyum visited a single -family
home (the property) on November 15, 2012 , to view it for potential purchase. While
touring the property, Boyum stepped on a sump-pump fixture in the basement. The sump
pump was one of three in the basement. The cover of the sump-pump fixture flipped off,
and Boyum’s left leg fell into the basket of the sump pump where it struck a mechanical
piece, causing significant injuries to Boyum’s ankle.
The property was owned by respondent Federal National Mortgage Association
(Fannie Mae) due to foreclosure . The house was listed for sale on an “as is” basis with
respondents Century 21 M oline Realty, Inc. and Joslyn Panka Solomon , the Century 21
regional listing agent for Fannie Mae properties . Solomon was responsible for observing
whether the property was vacant, changing the locks after the occupants left , examining
the property, working with a safety contractor, ensuring utilities were working, and
reporting safety issues to Fannie Mae.
Before Boyum’s visit, a contractor for Fannie Mae had arranged for three
professional inspections of the home, including an overall inspection, a septic -system
3
inspection, and a plumbing inspection. Neither the overall nor the septic-system inspection
noted any safety hazards at the property. The plumbing-inspection report noted concerns
with two of the sump-pump fixtures located in the basement as follows: “Both of them
have electrical conduit as the drain pipe glued to some pvc. It’s a mess.” The report
contained no notes or warnings concerning the condition of the third sump-pump fixture—
the fixture involved in Boyum’s injury.
Boyum filed a complaint against Fannie Mae, Century 21, and Solomon in October
2018 alleging negligence and negligence per se . Respondents moved for summary
judgment on the grounds that the suit was barred by the two -year statute of limitations set
forth in Minn. Stat. § 541.051 and that they were entitled to judgment as a matter of law
based on the undisputed facts. The district court found that , while Minn. Stat. § 541.051
was applicable, Boyum’s claims came within an exception to the two -year statute of
limitations and were th us timely. The court held that respondents were, nevertheless,
entitled to summary judgment because Boyum failed to establish a genuine issue of
material fact on essential elements of both his negligence and negligence per se claims .
Boyum appeals.
DECISION
Boyum argues in this appeal that the grant of summary judgment was in error
because he established a genuine issue of material fact concerning whether respondents
breached a duty of due care to discover and repair or warn him about the unsecured sump-
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pump fixture cover.1 Boyum also argues that the district court erred in applying the
limitations period of Minn. Stat. § 541.051, even though the district court found that
Boyum’s complaint was not time -barred because it was covered by an exception to the
limitations period.
On appeal from a grant of summary judgment, w e apply a de novo standard of
review “to determine ‘whether there are genuine issues of material fact and whethe r the
district court erred in its application of the law.’” Montemayor v. Sebright Prods., Inc. ,
898 N.W.2d 623, 628 (Minn. 2017) (quoting Stringer v. Minn. Vikings Football Club, LLC,
705 N.W.2d 746, 754 (Minn. 2005)) . Summary judgment is appropriate if the party who
bears the burden of proof fails to bring forward evidence sufficient to create a genuine issue
of material fact in support of one or more essential elements of his or her claim. Eng’g &
Constr. Innovations, Inc. v. L.H. Bolduc Co. , 825 N.W. 2d 695, 704 (Minn. 2013). W e
“view the evidence in the light most favorable to the party against whom summary
judgment was granted.” STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76-
77 (Minn. 2002).
I. The district court did not err in concluding that Boyum failed to establish a
genuine issue of material fact on the issue of whether respondents had
constructive knowledge of the unsecured sump-pump fixture cover.

The elements of a negligence claim include proof of (1) the existence of the duty of
care, (2) a breach of that duty, and (3) an injury; and proof that (4) the breach of duty was
the proximate cause of the injury. Lubbers v. Anderson , 539 N.W.2d 398, 401 (Minn.

1 Boyum did not appeal the grant of summary judgment on his claim of negligence per se.
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1995). A defendant is entitled to summary judgment in a negligence action when there is
a complete lack of proof on any of the four elements necessary for recovery. Louis v. Louis,
636 N.W.2d 314, 318 (Minn. 2001).
Owners and possessors of real property generally owe a duty to use reasonable care
for the safety of those permitted to enter their property . Peterson v. Balach, 199 N.W.2d
639, 647 (Minn. 1972). This duty includes the continuing duty to inspect and maintain the
premises in a “reasonably safe condition for their use.” Bonniwell v. St. Paul Union
Stockyards Co. , 135 N.W.2d 499, 502 ( Minn. 1965). “If dangerous conditions are
discoverable through reasonable efforts, the landowner must either repair the conditions or
provide invited entrants with adequate warnings.” Olmanson v. LeSueur County , 693
N.W.2d 876, 881 (Minn. 2005) (citing Restatement (Second) of Torts § 343 cmt. d (1965)).
However, “[i]f a reasonable inspection does not reveal a dangerous condition, such that the
landowner has neither actual nor constructive knowledge of it, under the theory of
negligence the landowner is not liable for any physical injury caused to invited entrants by
the dangerous condition.” Id. (citing Hanson v. Christensen , 145 N.W.2d 868, 873 -74
(Minn. 1966)).
Here, the district court found, based on the undisputed facts, that respondents were
either owners or possessors of the house and, thus, owed a duty of care to Boyum as an
6
invitee on the property.2 But the district court concluded that Boyum presented no evidence
that respondents “failed to exercise the reasonable care necessary.” We agree.
Three inspections of the house were conducted by professional contractors,
including an overall inspection and a plumbing inspection . And Boyum failed to present
evidence that the inspections were not competently performed or otherwise failed to satisfy
the duty of reasonable care. In his opposition to the motion for summary judgment, Boyum
submitted a declaration from his expert witness, but the declaration contains no opinion
questioning the competence of the inspectors or that their reports fell below reasonable
standards of due care. Boyum also presented no evidence, and has not argued on appeal,
that respondents otherwise had actual knowledge of the alleged defect. Instead, h is
argument focuses solely on the claim that the question of whether respondents had
constructive knowledge of the alleged defect is a question for a jury to resolve and that the
district court erred in deciding it as a matter of law. We are not convinced.
Boyum raises several arguments on the issue of constructive knowledge. First, he
claims that constructive knowledge can be imputed to an owner or possessor if the
condition has persisted long enough that a reasonable inspection should have revealed it.
While this may be true, Boyum ignores the fact that, in response to a motion for summary
judgment, the burden was on him to bring forward evidence to support his assertion.
Messner v. Red Owl Stores , 57 N.W.2d 659, 661-62 (Minn. 1953). Boyum presented no

2 Respondents argue that not all of the respondents were owners or possessors of the
property. Nevertheless, for the purposes of our analysis, we assume without deciding that
the district court was correct and that they all owed a duty to Boyum.

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evidence about how long the alleged defect had existed or how long respondents had been
in possession of the property. See Rinn v. Minn. State Agric. Soc’y, 611 N.W.2d 361, 365
(Minn. App. 2000) (“[S]peculation as to who caused the dangerous condition, or how long
it existed, warrants judgment for the landowner.”) . Boyum’s remaining arguments all
essentially focus on his claim that, when there is a “close case,” the courts should avoid
summary judgment and allow a case to proceed to a jury. Again, however, Boyum has
failed to present the evidence necessary to make this a “close case” on the issue of
constructive knowledge.
Three professional inspections were conducted on behalf of respondents with no
safety issue noted in connection with t he sump-pump fixture at issue in this case. Fannie
Mae only owned the house through foreclosure and the other two respondents were real-
estate agents for a house that was listed for sale “as is.” We further note that Boyum
testified in his deposition that the sump-pump fixture cover at issue in this case was flush
with the floor, thereby rendering it more difficult for respondents to be aware of any hazard
posed by the cover. Under these circumstances, we discern no error in the district court’s
ruling t hat Boyum failed to create a genuine issue of material fact on the question of
constructive knowledge of the alleged defect.
II. This court need not decide the statute-of-limitations issue.

Boyum devotes a significant portion of his brief, as do respondents, to the issue of
whether the limitations period set forth in Minn. Stat. § 541.051, subd. 1(a), is applicable
8
to Boyum’s action.3 The district court found the section to be applicable, but held that the
claim was not time-barred because it fell within an exception to the limitations period that
applies to “actions for damages resulting from negligence in the maintenance, operation or
inspection of the real property improvement against the owner or other person in
possession.” Minn. Stat. § 541.051, subd. 1(d) . Because we affirm the district court’s
grant of summary judgment on Boyum’s underlying negligence claim, we need not address
the Minn. Stat. § 541.051 issues. Moreover, we note that the district court’s application of
Minn. Stat. § 541.051 to this case does not alter in any way the negligence analysis. See,
e.g., Olmanson, 693 N.W.2d at 881 -82 ( “[U]nder the plain language of Minn. Stat.
§ 541.051, [what is now subdivision 1(d)], owners or other persons in possession retain
their ordinary landowner liability for negligent maintenance, operation, and inspection of
real property improvements.”); Monson v. Suck, 855 N.W.2d 323, 329 (Minn. App. 2014)
(accord), review denied (Minn. Dec. 30, 2014).
Affirmed.

3 Minn. Stat. § 541.051, subd. 1(a), provides in relevant part: “ [N]o action by any person
in contract, tort, or otherwise to recover damage s for any injury . . . arising out of the
defective and unsafe condition of an improvement to real property, shall be brought against
. . . the owner of the real property more than two years after the cause of action accrues.”