Freedom Kerkula, as Trustee for the Next of Kin of Grace Elizabeth Bettie, 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This opinion is nonprecedential except as provided by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
A22-1830

Freedom Kerkula, as Trustee for the Next of Kin of Grace Elizabeth Bettie,
Appellant,

vs.

City of Moorhead, et al.,
Defendants,

Minnesota Department of Natural Resources,
Respondent.

Filed September 11, 2023
Affirmed
Smith, Tracy M., Judge

Clay County District Court
File No. 14-CV-19-3419

Philip Sieff, Tony Schrank, Robins Kaplan LLP, Minneapolis, Minnesota; and

William L.H. Lubov, Golden Valley, Minnesota (for appellant)

Keith Ellison, Attorney General, Michael Goodwin, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Considered and decided by Reyes, Presiding Judge; Smith, Tracy M., Judge; and
Bratvold, Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
Appellant Freedom Kerkula, as trustee for her daughter Grace Elizabeth Bettie’s
next of kin, challenges the summary-judgment dismissal of her wrongful-death negligence
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action against respondent Minnesota Department of Natural Resources (DNR) on the
ground of recreational -use immunity. Kerkula contends that the district court erred in
granting the DNR’s motion for summary judgment because genuine issues of material fact
exist as to whether the trespasser exception to recreational-use immunity applies . We
affirm.
FACTS
This is the second appeal in Kerkula’s wrongful-death action arising out of the death
of her daughter, Grace. See Kerkula v. City of Moorhead, No. A20-0657, 2021 WL 669024
(Minn. App. Feb. 22, 2021). Grace drowned at the age of nine in an artificially created
swimming pond at Buffalo River State Park while participating in a summer youth program
run by the City of Moorhead and the Moorhead Police Department. The pond was owned
and operated by the DNR. Because this case comes to us on appeal from summary
judgment, the underlying facts are presented in the light most favorable to Kerkula as the
nonmoving party. See Henson v. Uptown Drink, LLC, 922 N.W.2d 185, 190 (Minn. 2019).
The Pond
The swimming pond at Buffalo River State Park was originally constructed in the
1930s and was reconstructed between 2001 and 2004 to add a filtration and chlorination
system. The pond had a clay liner with sand on top and was filled with water from the
Buffalo River. The pond’s water was often murky, with limited visibility.
The pond had a zero-depth entry and sloped downwards to a maximum depth of
about eight feet in the center of the pond. The water level varied due to shifting sand and
evaporation. In addition, the steepness of the slope depended on where a swimmer entered
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the pond and how far the swimmer was into the pond. The deeper section of the pond had
a steeper slope.
The DNR marked the deeper parts of the pond with ropes and buoys floating on top
of the water that were attached to poles fastened to the bottom of the pond. The ropes and
buoys enclosed two adjacent areas in the middle of the pond. One area was approximately
three to four feet deep, and the other was five to eight feet deep. The ropes and buoys were
the same for both sections and did not have depth markings.
Next to the pond, on two lifeguard stands, the DNR placed warning signs that
included topographical maps of the pond. The maps included the approximate location of
the ropes and buoys and the approximate depths of the pond. According to the park
manager, there may have been some discrepancies on the maps because the maps showed
that parts of the pond were deeper than they were.
Grace’s Death
On June 27, 2018, about 177 children, including Grace, visited Buffalo River State
Park as part of the police department’s summer youth program. One of the scheduled
activities included swimming at the pond.
At the pond, the children were supervised by police department employees and
volunteers. The DNR also had three lifeguards present. Before the children were allowed
to swim, a DNR park naturalist spoke with the children and their adult chaperones about
water safety and features of the pond. She pointed out the ropes and explained that the
depth would change to deeper water past the ropes. She also told the children to look at the
warning signs posted on the lifeguard stands.
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After the children swam for a couple of hours, a child informed a lifeguard and
chaperone that she could not find her friend. After searching on land and in the pond, the
lifeguards found Grace in the deep part of the pond. Grace was pronounced dead at the
scene.
Procedural History
Kerkula, Grace’s mother, was appointed trustee for Grace’s next of kin and initiated
a wrongful-death action against the DNR, the city, and the city’s police department. As
relevant to this appeal, the DNR moved to di smiss the claim against it under Minnesota
Rule of Civil Procedure 12.02(e), contending that it was entitled to recreational-use
immunity under the state tort claims act. See Minn. Stat. § 3.736, subd. 3(i) (2022). The
district court granted the DNR’s motion to dismiss. Kerkula appealed, and we reversed the
dismissal of the claim against the DNR. Kerkula, 2021 WL 669024, at *1. We concluded
that Kerkula’s complaint alleged sufficient facts to support the trespasser exception to
recreational-use immunity and remanded for further proceedings. 1 Id. at *5.
Following discovery, the DNR moved for summary judgment, arguing that the
undisputed facts established that it was entitled to recreational-use immunity and statutory
discretionary-function immunity. Kerkula opposed the motion. The district court
determined that there were no genuine issues of material fact and that the DNR was entitled

1 The city also moved to dismiss Kerkula’s claims against it and its police department, but
the district court denied its motion. We affirmed that denial in the first appeal. Kerkula,
2021 WL 669024, at *7. Kerkula ultimately settled with the city, leaving only the claim
against the DNR at issue in this appeal.
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to recreational-use immunity. As a result, the district court granted the DNR’s motion for
summary judgment and dismissed Kerkula’s claim.2
Kerkula appeals.
DECISION
Appellate courts review the grant of summary judgment de novo to determine
whether the district court properly applied the law and whether there are genuine issues of
material fact. Montemayor v. Sebright Prods., Inc., 898 N.W.2d 623, 628 (Minn. 2017).
The reviewing court will view the evidence in the light most favorable to the party against
whom summary judgment is granted. Henson, 922 N.W.2d at 190. Summary judgment is
proper if, based on the record, the moving party 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. The record may include depositions, documents, affidavits, admissions, and
interrogatory answers. Minn. R. Civ. P. 56.03(a). A genuine issue of material fact exists
“when reasonable persons might draw different conclusions from the evidence presented.”
DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997).
Recreational-use immunity generally protects the state from liability for injuries
caused by use of state parks and recreational areas . Minn. Stat. § 3.736, subd. 3(i). The
legislature afforded this shield from liability to promote “the preservation of Minnesota’s
outdoor recreational resources in light of the growing demand for outdoor recreational
facilities.” Green-Glo Turf Farms, Inc. v. State, 347 N.W.2d 491, 495 (Minn. 1984)

2 The district court did not reach the issue of statutory discretionary-function immunity.
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(quotation omitted). Recreational-use immunity “preserves the state’s freedom to manage
the areas in the best interests of the state and its citizenry.” Id.
Recreational-use immunity is not absolute. The state may still be liable for conduct
that would entitle a trespasser to damages against a private person. Minn. Stat. § 3.736,
subd. 3(i). In Kerkula’s first appeal to this court, we concluded that the adult-trespasser
standard and not the heightened child- trespasser standard applies to this case. Kerkula,
2021 WL 669024, at *3-4. Minnesota has adopted the Restatement (Second) of Torts § 335
(1965) as the standard for the adult-trespasser exception to recreational-use immunity.
Johnson v. Washington County, 518 N.W.2d 594, 599 (Minn. 1994) (applying Minn. Stat.
§ 466.04, the recreational-use immunity statute for municipalities, which involves the same
trespasser-exception analysis under section 335).
Section 335 provides:

A possessor of land who knows, or from facts within his
knowledge should know, that trespassers constantly intrude
upon a limited area of the land, is subject to liability for bodily
harm caused to them by an artificial condition on the land, if
(a) the condition
(i) is one which the possessor has created or
maintains and
(ii) is, to his knowledge, likely to cause death or
seriously [sic] bodily harm to such trespassers
and
(iii) is of such a nature that he has reason to
believe that such trespassers will not discover it,
and
(b) the possessor has failed to exercise reasonable care
to warn such trespassers of the condition and the risk
involved.

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Restatement (Second) Torts § 335. The burden is on the plaintiff to establish the elements
to defeat an immunity claim. Krieger v. City of St. Paul, 762 N.W.2d 274, 276 (Minn. App.
2009). If a plaintiff fails to submit sufficient evidence to meet any one of these elements of
the trespasser exception, recreational-use immunity bars their claim. See id. at 278.
Kerkula argues that the district court erred in granting summary judgment in favor
of the DNR because there are genuine issues of material fact as to whether the trespasser
exception applies. Kerkula argues that the pond contained an artificial condition—a
dangerous drop-off
3 concealed by murky water—and that the DNR failed to warn about
the artificial condition.
“[C]hanges in natural environments do not create an ‘artificial’ condition where the
affected terrain duplicates nature, except that an artificial condition will be found if there
is some type of trap or concealment.” Henry v. State, 406 N.W.2d 6 08, 611 (Minn. App.
1987), rev. denied (Minn. Aug. 12, 1987). Generally, hidden conditions are determined
based on “whether the condition was visible, not on whether the injured party actually saw
the danger.” Steinke v. City of Andover, 525 N.W.2d 173, 177 (Minn. 1994). A condition
is not concealed if a “brief inspection would have revealed the condition.” Johnson v. State,
478 N.W.2d 769, 773 (Minn. App. 1991), rev. denied (Minn. Feb. 27, 1992).
Although water has an inherent danger, the state has been held to be protected by
recreational-use immunity for claims in connection with its artificial ly created swimming

3 Based on Kerkula’s briefing and her explanation at oral argument, Kerkula uses the term
“drop-off” to refer to a steep slope where a person in the pond could take a step and
unexpectedly find themselves underwater.
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ponds when the ponds do not have a hidden dangerous condition beyond water’s inherent
danger. See Zacharias v. Minn. Dep’t of Nat. Res., 506 N.W.2d 313, 319-21 (Minn. App.
1993) (applying recreational-use immunity to wrongful-death action against DNR when
child drowned in artificially created swimming pond at Flandrau State Park), rev. denied
(Minn. Nov. 16, 1993); see also Johnson, 518 N.W.2d at 599-600 (applying recreational-
use immunity to wrongful-death action against county when child drowned in artificially
created pond in Lake Elmo Park Preserve).
The question here is whether the record presents a genuine issue of fact as to whether
the Buffalo River State Park swimming pond contained a hidden dangerous condition.
Viewing the evidence in the light most favorable to Kerkula, we conclude that it does not.
Kerkula contends that the murky water concealed the steeper slope in the pond. The
undisputed evidence shows that the pond had a steeper slope in the deeper portion of the
pond and that the pond had known clarity issues. But Kerkula’s argument that a dangerous
condition was hidden does not account for the buoys and the ropes that marked off where
the steeper slope in the pond occurred. DNR employees testified that the steeper slope of
the pond was past the buoys and ropes. In addition, the topographical maps on the lifeguard
stands showed the location of the ropes and th e changing depths of the pond. Kerkula did
not present any evidence that shows the pond’s slope was steeper, or that the pond’s depth
unexpectedly increased, outside of the area marked by buoys and ropes. Thus, even if the
deeper portion of the pond presented a danger beyond the inherent danger of water, the
undisputed evidence establishes that the DNR did not have reason to believe that the
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trespasser would not discover the danger given the ropes and buoys and the topographical
maps.
Under the trespasser exception in section 335, a landowner is liable only “for failing
to exercise reasonable care to warn trespassers about hidden, artificial dangers created or
maintained by the landowner.” Sirek by Beaumaster v. State, Dep’t of Nat. Res. , 496
N.W.2d 807, 810 (Minn. 1993) (emphasis added). Because Kerkula did not offer evidence
sufficient to create a dispute of fact regarding a hidden dangerous condition, the DNR had
no duty to warn and the trespasser exception does not apply. The DNR is thus entitled to
recreational-use immunity.
Grace’s death is a tragedy, and we acknowledge her family’s terrible loss. We
recognize that the application of recreational-use immunity will prevent recovery from the
DNR for Grace’s estate. There is no question that recreational-use immunity has harsh
consequences. See Ariola v. City of Stillwater, 889 N.W.2d 340, 360 (Minn. App. 2017),
rev. denied (Minn. Apr. 18, 2017). But when the record yields no genuine dispute that
immunity applies, summary judgment must be affirmed.
In sum, because a genuine issue of fact does not exist with respect to whether the
trespasser exception to recreational-use immunity applies, the district court did not err by
granting summary judgment in favor of the DNR.4
Affirmed.

4 The DNR argues in the alternative that it is entitled to statutory discretionary-function
immunity. Because we conclude that the DNR is entitled to recreational-use immunity, we
do not address this alternative basis for affirming summary judgment.