Brandon Grim, 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This opinion is nonprecedential except as provided by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
A21-1353

Brandon Grim,
Appellant,

vs.

City of Zumbro Falls,
Respondent.

Filed May 2, 2022
Reversed and remanded
Larkin, Judge

Wabasha County District Court
File No. 79-CV-21-28

Andrew L. Davick, Ava Marie M. Cavaco, Meshbesher & Spence, Ltd., Rochester,
Minnesota (for appellant)

Evan C. Tsai, League of Minnesota Cities, St. Paul, Minnesota (for respondent)

Considered and decided by Ross, Presiding Judge; Worke, Judge; and Larkin,
Judge.
NONPRECEDENTIAL OPINION
LARKIN, Judge
Appellant challenges the summary -judgment dismissal of his negligence claim
against respondent-city, which was based on an injury he sustained after he stepped off a
city sidewalk and tripped on the city’s do uble-stepped curb. Because the city did not
establish that it is entitled to the protections of statutory immunity, and because there is a
2
genuine issue of material fact regarding whether the city should have warned of the
potential danger resulting from the double-stepped curb, we reverse and remand.
FACTS
The relevant facts in this appeal from summary judgment are undisputed. In May
2018, appellant Brandon Grim went camping with his sons. After setting up camp, he
drove to Buck Wild, a bar in Zumbro Falls, Minnesota, to buy some beer. He had been to
the bar on prior occasions. He parked his vehicle on the street, across from the bar.
The sidewalk in front of the bar has a double-stepped curb design to defend against
flooding from the nearby Zumbro River. Portions of the sidewalk had been painted yellow
in the past, but at the time of the accident, the paint had faded.
At around 4:30 p.m., Grim injured himself when he tripped after exiting the bar with
a case of beer in his hand. Grim explained in deposition testimony that as he walked off
the sidewalk to approach his parked vehicle, he stepped on the edge of the top curb because
it was “not visible .” But when he approached the bar , Grim had safely stepped over the
same curb where he ultimately tripped.
Grim sued respondent City of Zumbro Falls , alleging that the city knew or should
have known of the danger posed by the curb, negligently failed to inspect and maintain the
curb, and negligently failed to warn of its dangers. The city moved for summary judgment,
asserting that it was entitled to statutory immunity under Minn. Stat. § 466.03 (2020), and
that it was not liable as a matter of law because the curb was an open and obvious danger.
The district court agreed with each of those assertions and granted summary judgment for
the city. Grim appeals.
3
DECISION
Summary judgment is appropriate if the moving party shows that “there is no
genuine issue as to any material fact” and that the moving party is “entitled to judgment as
a matter of law.” Minn. R. Civ. P. 56.01. But summary judgment is a “blunt instrument,”
and it should not be granted if “reasonable persons might draw different conclusions from
the evidence presented.” Senogles v. Carlson, 902 N.W.2d 38, 42 (Minn. 2017) (quotations
omitted). Any doubt regarding the existence of a material fact is resolved in favor of the
party against whom summary judgment was granted. Id.; see also Fenrich v. Th e Blake
Sch., 920 N.W.2d 195, 201 (Minn. 2018) (stating that the evidence is viewed in the light
most favorable to the nonmoving party and all doubts are resolved against the moving
party). Likewise, “factual inferences must be drawn against the movant for summary
judgment.” Senogles, 902 N.W.2d at 42 (quotation omitted). Again, summary judgment
is inappropriate if reasonable people can draw different conclusions from the evidence
presented. DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997).
We review a district court ’s grant of summary judgment de novo. Dukowitz v.
Hannon Sec. Servs. , 841 N.W.2d 147, 150 (Minn. 2014). In doing so, we “view the
evidence in the light most favorable to the party against whom summary judgment was
granted to determine whether there are any genuine issues of material fact and whether the
district court correctly applied the law.” Id.
Negligence is the failure to exercise the level of care that an ordinary person would
under the same 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
4
that duty, (3) an injury, and (4) that the breach of the duty of care was a proximate cause
of the injury.” Id. Generally, municipalities have a duty to keep the ir sidewalks in a safe
condition. Donald v. Moses, 94 N.W.2d 255, 26 1 (Minn. 1959); First Baptist Church of
St. Paul v. City of St. Paul , 884 N.W.2d 355, 3 64 (Minn. 2016) ; Hoff v. Surman , 883
N.W.2d 631, 634 (Minn. App. 2016).
I.
Grim contends that the d istrict court erred in concluding that the city is entitled to
statutory immunity as a matter of law. Application of statutory immunity is a legal question
that we review de novo. Conlin v. City of St. Paul, 605 N.W.2d 396, 400 (Minn. 2000).
Generally, a municipality is subject to liability for torts “of its officers, employees
and agents acting within the scope of their employment or duties.” Minn. Stat. § 466.02
(2020). Statutory immunity is an exception to that general rule. Minder v. Anoka County,
677 N.W.2d 479, 483-84 (Minn. App. 2004) . “Statutory immunity is based on the
separation of powers and is intended to prevent judicial review, through the medium of a
tort action, of executive and legislative policy-making decisions.” Id. at 484.
Under statutory immunity, m unicipalities are immune from tort liability “based
upon the performance or the failure to exercise or perform a discretionary function or duty,
whether or not the discretion is abused.” Minn. Stat. § 466.03, subd. 6. In defining a
“discretionary function or duty,” “appellate courts distinguish between planning and
operational decisions.” Minder, 677 N.W.2d at 484. Planning decisions are protected as
discretionary actions, while operational decisions relating to day-to-day operations are not
protected. Id. To obtain the protection of statutory immunity, a municipality must show
5
that the alleged negligent conduct stems from a protected planning decision. Conlin, 605
N.W.2d at 402.
If s tatutory immunity is asserted, “the plaintiff has the burden to articulate
specifically the claim that must be scrutinized to determine the immunity issue and to make
some showing of fact to suggest the basis for the claim.” Gerber v. Neveaux, 578 N.W.2d
399, 403 (Minn. App. 1998), rev. denied (Minn. July 16, 1998). Thus, when analyzing a
claim of statutory immunity, the first step is to identify the precise government conduct
that is the basis for the negligence claim. Minder, 677 N.W.2d at 484.
Here, Grim’s negligence claim is not based on the city’s double-stepped curb design
itself. Instead, he argues that the city should have maintained the painted lines on the
sidewalk and otherwise warned of the tripping hazard created by the double-stepped curb.
As he notes in his brief to this court, “[t]he maintenance failure at issue is not to repair a
whole sidewalk, a pothole, or a chunk of missing cement, it is to have lines of paint put
onto a curb to warn sidewalk users that there is an unordinary walkway of w hich to be
mindful.”
As support for its claim of statutory immunity, t he city submitted an affidavit from
a city clerk and council member indicating that the city made a decision to limit sidewalk
maintenance to snow and ice removal based on financial constraints. The affidavit stated:
As a member of the City of Zumbro Falls City Council,
I am also privy to discussions about how we can maintain the
sidewalks of the City. We have discussed our ability to afford
sidewalk maintenance. Given the expenses th e City has and
accrues because of flooding and other natural disaster, the City
cannot afford to pay for regular sidewalk maintenance beyond
snow and ice removal.
6

The affidavit also indicated that the city previously relied on community work
service, imposed in criminal cases, as a source of labor to paint lines on the sidewalk, that
the lines ha d been painted “ three times in the past 20 years ,” and that “the last time the
sidewalk was painted was in approximately 2008.” The affidavit stated that the city had
not received any complaints or reports of injuries regarding the sidewalk. The city also
submitted copies of its annual budgets, which listed the city’s revenues and expenses.
Our de novo assessment of whether the city is entitled to statutory immuni ty is
influenced by t he supreme court’s decision in Conlin. In Conlin, a motorcyclist injured
himself when he lost control on a street that had recently been oiled and sanded as part of
a road-sealing process. 605 N.W.2d at 398 -99. He sued the municipality, arguing that it
failed to inspect, maintain, and warn of the dang erous street condition. Id. at 399. The
municipality moved for summary judgment and offered affidavits in support. Id. The
district court granted summary judgment for the municipality based on statutory immunity.
Id.
The supreme court held that summ ary judgment was inappropriate because the
municipality’s affidavits were conclusory and did not explain how and why the decisions
regarding the street-sealing project w ere made. Id. at 402-03. The supreme court stated
that statutory immunity must be narrowly construed and that “allowing minimal averments
in an affidavit to be sufficient evidence of a planning decision ” creates “a risk that
professional or scientific decisions, as well as nondecisions, will be bootstrapped into
7
planning decisions and thus protected by statutory immunity.” Id. at 403. Therefore, the
government must produce evidence regarding how it made its decision. Id. at 402.
“[A]lmost every act involves some measure of discretion, and yet undoubtedly not
every act of government is entitled to statutory immunity.” Angell v. Hennepin Cnty. Reg’l
Rail Auth., 578 N.W.2d 343, 346 (Minn. 1998) (quotation omitted). “Statutory immunity
applies only when the challenged government activity originated from a balancing of
political, social and economic factors.” Id.; see Minder, 677 N.W.2d at 484.
In this case, there is evidence t hat the city previously relied on community work
service, imposed in criminal cases, for labor to paint the sidewalk. Thus, there is evidence
indicating that the city previously decided that painted lines were appropriate. Yet , the
city’s affidavit in support of statutory immunity does not meaningfully address the painted
lines. Instead, the city generally asserts that it c onsidered the financial impact of regula r
sidewalk “maintenance” and that “maintenance” would be limited to snow and ice removal.
The affidavit does not indicate that the city considered any safety con cerns specific to the
double-stepped design of its curbs or the feasibility or costs of warning pedestrians of the
potential tripping hazard resulting from the curb design.
For those reasons, the city’s reliance on Chabot v. City of Sauk Rapids is unavailing.
422 N.W.2d 708 (Minn. 1988). In that case, the supreme court determined that statutory
immunity applied to a city’s financially driven decision to delay improvements to a holding
pond. Id. at 70 8-09, 711. But in Chabot, evidence showed how the city arrived at the
specific decision challenged by the plaintiff. For example, evidence showed that the city
was confronted with numerous drainage issues with its storm sewer system, and the holding
8
pond in question was not a primary concern. Id. at 709. This case is distinguishable from
Chabot because the city did not present evidence that it specifically considered whether to
paint or provide other warnings of the double-stepped curb. See also Christopherson v.
City of Albert Lea , 623 N.W.2d 272, 276 (Minn. App. 2001) (“[T]he record contains
evidence that the city did engage in the weighing of issues that entitles it to immunity.”).
Instead, t he city’s affidavit in this case is conclusory, like the inadequate affidavits in
Conlin.
In sum, the city failed to present sufficient evidence to establish that it is statutorily
immune from liability stemming from Grim’s fall.
II.
Grim contends that the district court erred in concluding that the city was not liable
as a matter of law because its double-stepped curb was an open and obvious danger.
The supreme court has adopted Restatement (Second) of Torts § 343A(1) (1965) to
define a landowner’s duty in regard to obvious dangers: “A possessor of land is not liable
to his invitees for physical har m caused to them by any . . . condition on the land whose
danger is known or obvious to them, unless the possessor should anticipate the harm despite
such knowledge or obviousness.” Baber v. Dill , 531 N.W.2d 493, 49 5-96 (Minn. 1995)
(quotation omitted). The rationale behind the rule is that “no one needs notice of what he
knows or reasonably may be expected to know.” Id. at 496 (quotation omitted). Whether
a condition presents a known or obvious danger, and whether a landowner should anticipate
injury d espite a condition’s open and obvious nature, are ordinarily fact questions .
Olmanson v. LeSueur County, 693 N.W.2d 876, 881 (Minn. 2005).
9
Whether a condition ’s danger is known is a subjective test that depends upon the
entrant’s actual appreciation of th e danger. Senogles, 902 N.W.2d at 44. Viewing the
evidence in a light most favorable to Grim, reasonable persons could not disagree regarding
whether the potential danger stemming from the double-stepped curb was known to Grim.
He acknowledged in deposition testimony that he had been to the bar on prior occasions,
including twice in the year prior to the accident. In fact, he acknowledged regularly visiting
the bar. He also acknowledged that before entering the bar on the day of the accident, he
stepped over the same curb where he ultimately tripped. He admitted that he “negotiated
the curb, and then the ramp or the slope on the sidewalk.” He admitted that he was paying
attention and “walking normal” when he entered. On this record, we conclude, de novo,
that there is no genuine issue of material fact regarding Grim’s knowledge of the potentially
dangerous double-stepped curb. We therefore do not consider whether the potential danger
was obvious.1 See id. at 43-44 (describing the “known” subjective test and the “obvious”
objective test as alternative grounds for avoiding liability).
We next consider whether the city should have anticipated the potential harm from
the double-stepped curb despite Grim’s knowledge of the curb design. See Baber, 531
N.W.2d at 495-96. In some cases, a land possessor should anticipate harm from a
dangerous condition despite the condition being known to the invite e. Restatement
(Second) of Torts § 343A cmt. f (1965); see Peterson v. W.T. Rawleigh Co., 144 N.W.2d

1 Although the district court relied on the “obvious” prong of the “known or obvious”
standard for determining liability, our review is de novo. Dukowitz, 841 N.W.2d at 150.
Moreover, the parties and district court referenced G rim’s subjective knowledge o f the
double-stepped curb, indicating that they recognized the relevance of his knowledge.
10
555, 557-58 (Minn. 1966) (quoting cmt. f). “Such reason to expect harm to the visitor from
known or obvious dangers may arise, for example, where the possessor has reason to expect
that the invitee’s attention may be distracted, s o that he will not discover what is obvious,
or will forget what he has discovered . . . .” Restatement (Second) of Torts § 343A cmt. f
(1965). Indeed, “distracting circumstances are factors which the jury might consider in
excusing a plaintiff who did n ot look where he was stepping .” Krengel v. Midwest
Automatic Photo, Inc. , 203 N.W.2d 841, 84 4-45 ( Minn. 1973) (stating principle in the
context of tripping hazard caused by changed elevations in commercial store areas).
Whether the city should have anticipated the harm is an issue of foreseeability.
Senogles, 902 N.W.2d at 4 3. “Whether a risk was foreseeable depends on whether the
specific danger was objectively reasonable to expect, not simply whether it was within the
realm of any co nceivable possibility.” Id. (quotation omitted). “ The foreseeability of
danger depends heavily on the facts and circumstances of each case.” Id. (quotation
omitted). When the issue of foreseeability is clear, it may be decided as a matter of law,
but in close cases, the issue of foreseeability is for the jury. Id.
The summary-judgment record contains pictures showing that the double-stepped
curb was less visible when stepping off the sidewalk and onto the street in front of the bar
than when walking from the street onto the sidewalk. At his deposition, Grim testified that
the double-stepped curb was not visible when he exited the bar. He also testified that he
was carrying a case of beer. Such a distracting circumstance —as well as others that are
commonly present when walking to and from a car parked on a city street in a commercial
area—might be considered by a jury as a basis to excuse Grim’s failure to look where he
11
was stepping. Viewing the evidence in a light most favorable to Grim, a genuine issue of
material fact exists regarding whether the city should have anticipated the potential harm
despite Grim’s knowledge of the double-stepped curb.
In conclusion, the city did not produce sufficient evidence to warrant application of
statutory immunity as a matter of law. See Conlin, 605 N.W.2d at 403 (stating, “statutory
immunity should be narrowly construed”). And although we conclude that Grim knew of
the double-stepped curb and its potential tripping hazard, reasonable minds could disagree
regarding whether the city should have nonetheless anticipated harm and provided a
warning. See DLH, Inc. , 566 N.W.2d at 69 (stating that “summary judgment is
inappropriate when reasonable persons might draw different conclusions from the evidence
presented”). We therefore reverse and remand for further proceedings consistent with this
opinion.
Reversed and remanded.