Isaac C. Johnson, et al., Appellants,

This opinion is nonprecedential except as provided by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
A21-0120

Isaac C. Johnson, et al.,
Appellants,

vs.

Pulte Homes of Minnesota, LLC, d/b/a Pulte Homes, LLC,
and d/b/a Pulte Homes,
Respondent.

Filed October 4, 2021
Affirmed
Smith, John, Judge*

Hennepin County District Court
File No. 27-CV-19-16398

Francis J. Rondoni, Heidi M. Torvik, Chestnut Cambronne PA, Minneapolis, Minnesota
(for appellants)

Douglas J. McIntyre, Thomas H. Priebe, Foley & Mansfield, P.L.L.P., Minneapolis,
Minnesota (for respondent)

Considered and decided by Hooten, Presiding Judge; Smith, Tracy M., Judge; and
Smith, John, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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NONPRECEDENTIAL OPINION
SMITH, JOHN, Judge
We affirm the district court’s grant of summary judgment in favor of respondent on
appellant Isaac Johnson’s negligence claim arising from a slip and fall because we conclude
appellant failed as a matter of law to establish constructive notice of a potential hazard on
respondent’s premises.
FACTS
Appellant slipped and fell at a model home owned and operated by respondent Pulte
Homes of Minnesota, LLC (Pulte) in January 2018. On the day of appellant’s fall, a Pulte
employee arrived at the model home at about 10:30 a.m. It was not snowing heavily, but
there was a layer of snow on the sidewalk leading to the model home from the parking lot.
The employee shoveled the walkway and did not notice any ice or slipperiness at that time
or put down salt, sand, or other de-icing material. Another Pulte employee arrived at the
model home between 3:00 and 3:30 p.m. that same day and noticed the walkway was clear
of snow and ice.
Johnson is a real estate agent, and had arranged to meet a client at the model home
at 4:30 p.m. When the client arrived, there was snow on the ground including a fresh coat
of snow covering the parking lot and the walkway. When Johnson arrived, the walkway
was covered with snow marked by footprints leading up to the model home. He tried to
follow the path of these footprints but slipped on ice and fell where the parking lot met the
sidewalk.
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Johnson called for help and Johnson’s client and a Pulte employee rushed out to
assist him. They discovered ice underneath the snow in the area where Johnson fell. They
helped him into his vehicle, and he drove to the hospital. There, he discovered he had
suffered a severe leg injury which required two surgeries to repair.
Johnson initiated his lawsuit against Pulte in September 2019, claiming damages for
Pulte’s negligent maintenance of the model home’s premises. Pulte moved for summary
judgment in June 2020. The district court granted summary judgment later that year. It
determined that because Johnson had not provided evidence sufficient “to establish when
the ice formed . . . such that Pulte would have constructive knowledge that ice had formed,”
and had otherwise produced insufficient evidence of actual knowledge, summary judgment
in favor of Pulte was warranted.
DECISION
The moving party is entitled to summary judgment if it “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. We review a summary judgment decision de novo to
determine whether the district court properly applied the law and whether genuine issues
of material fact preclude summary judgment. Riverview Muir Doran, LLC v. JADT Dev.
Grp., LLC , 790 N.W.2d 167, 170 (Minn. 2010). “[S]ummary judgment is appropriate
against a party who fails to establish the existence of an element essential to its case.” Rinn
v. Minn. State Agric. Soc’y, 611 N.W.2d 361, 363-64 (Minn. App. 2000).
For Johnson’s claim to survive summary judgment, he must have offered evidence
sufficient to establish “(1) the existence of a duty of care; (2) a breach of that duty; (3) an
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injury was sustained; and (4) breach of the duty was the proximate cause of the i njury.”
Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995). Duty is therefore a “threshold
question” of liability. Glorvigen v. Cirrus Design Corp., 816 N.W.2d 572, 582 (Minn.
2012). We review de novo whether a duty exists. Rinn, 611 N.W.2d at 364. The district
court decided Pulte did not owe Johnson a duty because Pulte had no constructive or actual
notice of the dangerous condition that caused his fall. We concur that Johnson has not
offered sufficient evidence of notice such that his claim survives summary judgment.
“A property owner has a duty to use reasonable care to prevent persons from being
injured by conditions on the property that represent foreseeable risk of injury.” Id. But
they are not “insurers of safety.” Id. at 365. Property owners are thus liable “only where
the landowner had actual or constructive knowledge of the dangerous condition.” Id. The
burden of proof as to a property owner’s knowledge is on the plaintiff. Id.
Johnson claims the ice existed for a sufficient period of time for Pulte to be on
constructive notice of its existence. But Johnson has not provided evidence beyond the
“speculative and conjectural” as to how long the ice was under the snow. Messner v. Red
Owl Stores, Inc. , 57 N.W.2d 659, 661 (Minn. 1953). The employee who traversed the
premises between 3:00 and 3:30 p.m. did not notice slippery conditions or ice. Johnson’s
client did not notice slippery conditions or ice when he traversed the premises less than ten
minutes before Johnson’s arrival. The evidence as to when the slippery conditions came
into being or how long they existed at the time of Johnson’s fall is thus nothing more than
“speculation as to who caused the dangerous condition, or how long it existed.” Rinn, 611
N.W.2d at 365. Appellant’s speculative evidence “warrants judgment for the landowner”
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as to whether Pulte had constructive notice based on the length of time the slippery
conditions were present. Id.
Johnson further argues his claim should survive summary judgment because a
reasonable inspection would have revealed the slippery conditions upon which he fell. But
if a “reasonable inspection does not reveal a dangerous condition . . . the landowner is not
liable for any physical injury caused . . . by the dangerous condition.” Olmanson v. LeSueur
County, 693 N.W.2d 876, 881 (Minn. 2005). And landowners are afforded “reasonable
notice of the need for, and a reasonable opportunity to take, corrective action for the safety”
of entrants upon their land. Mattson v. St. Luke’s Hosp. of St. Paul, 89 N.W.2d 743, 745
(Minn. 1958). Pulte did not have reasonable notice of the need for corrective action. Pulte
employees recall only that the weather on the day Johnson fell was windy, with limited
snow accumulation. The only Pulte employee to notice a potentially dangerous condition
promptly cleared the walkway. And Johnson’s client only remembers the weather
conditions as a “[t]ypical wintery day.” The record establishes that the conditions were not
out of the ordinary for what would be expected from a typical January day in Minnesota,
and that no Pulte employee had reason to believe further inspection of the premises would
be necessary. There was thus no reasonable n otice to take corrective action and no basis
on which to impute constructive or actual notice of the dangerous condition to Pulte. Pulte
is entitled to summary judgment as a result.
Affirmed.