                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A16-0723

                                   Simon McCullough,
                                      Respondent,

                                            vs.

                                    City of Red Wing,
                                        Appellant.

                                Filed December 27, 2016
                                        Affirmed
                                      Jesson, Judge

                             Goodhue County District Court
                               File No. 25-CV-14-2347

Paul Peterson, Jason L. DePauw, Harper & Peterson, P.L.L.C., Woodbury, Minnesota (for
respondent)

Patrick L. Arneson, League of Minnesota Cities, St. Paul, Minnesota (for appellant)

       Considered and decided by Hooten, Presiding Judge; Cleary, Chief Judge; and

Jesson, Judge.

                        UNPUBLISHED OPINION

JESSON, Judge

       Appellant City of Red Wing challenges the district court’s denial of its motion for

summary judgment after the district court concluded that the city is not entitled to assert

recreational-use immunity as a matter of law in an action brought by respondent Simon

McCullough, who sustained injuries when a section of a concrete wall fell on him as he
swung in his hammock. Because there are genuine issues of material fact regarding

whether recreational-use immunity applies, we affirm.

                                           FACTS

       A hundred-year-old park sits in the middle of Red Wing. In the early 1900s, a

limestone retaining wall with a cast-concrete balustrade was constructed in the park. The

balustrade consists of a concrete lower rail, concrete balusters (or spindles), and a concrete

upper rail. The balusters can weigh up to 100 pounds, and the railings weigh about 300

pounds. Each baluster is attached to the railings by a four-inch pin made from rebar with

mortar surrounding it. Some portions of the balustrade are adjacent to limestone pillars

that rise above the rest of limestone wall. Other than to the balusters or an adjacent upper

rail, the upper rail does not attach to any other part of the balustrade or limestone wall.

       Although the city repaired the balustrade over the years, the wall’s design has not

changed. The wall is often used as a decorative backdrop for photographs. People sit on

and lean against the balustrade. Depending on the section of the wall, there is a seven-to-

ten-foot drop from the top of the balustrade to the grass below. People have picnics and

lounge directly beneath the wall near its base.

       The wall remained intact until its deteriorating condition became apparent in the

mid-2000s. Sections of the balustrade became loose. A section collapsed and was repaired.

The city received two complaints and a vendor report about the balustrade, noting concerns

about the wall’s condition during this period of time. Despite these concerns, there are no

reports of injury from the balustrade until 2011. Indeed, a month before the injury that

forms the basis of this appeal, the city repaired and replaced balusters along the wall.


                                              2
       On October 9, 2011, Simon McCullough went to the park to lounge in his hammock.

He attached each end of his hammock to different balusters on the wall. He sat in the

hammock for 15-20 minutes before his friends arrived to join him. One friend slung his

hammock to the balustrade wall as well. While McCullough’s and his friend’s hammocks

were not attached to the same baluster in that section of the wall, their hammocks were

secured to one of the three balusters that supported the same section of upper rail.

McCullough weighed approximately 145 pounds, and his friend weighed 150 pounds. As

soon as the friend climbed into his own hammock, three balusters and the railing they

supported fell off the wall. McCullough suffered severe injuries, including a broken neck,

a nearly severed ear, and a traumatic brain injury.

       McCullough sued the City of Red Wing in negligence for the injuries he sustained.

He claimed that the city failed to properly inspect and maintain the balustrade. The city

moved for summary judgment, claiming that it was insulated from McCullough’s claims

by recreational-use immunity. See Minn. Stat. § 466.03, subd. 6e (2014).1

       The district court concluded that genuine issues of fact exist regarding the

availability of recreational-use immunity and denied the city’s motion. Generally, an order

denying summary judgment is not appealable. McGowan v. Our Savior’s Lutheran



1
  The city also claimed that the statute of repose barred a claim for any injury which may
have resulted from the wall’s negligent construction or design. See Minn. Stat. § 541.051,
subd. 1(a) (2014) (barring a claim arising out of a defective improvement to real property
if not brought within two years of discovery of filing or within ten years after substantial
completion of the construction). The district court granted the city’s motion on the statute-
of-repose defense, limiting McCullough’s claims to those arising out of negligent
maintenance.

                                             3
Church, 527 N.W.2d 830, 832 (Minn. 1995). But the collateral-order doctrine permits

interlocutory review because the district court’s order made a final determination that the

city is required to defend against McCullough’s claims, and such an order is effectively

unreviewable in a later appeal. Kastner v. Star Trials Ass’n, 646 N.W.2d 235, 239-40

(Minn. 2002); see Johnson v. Jones, 515 U.S. 304, 314, 115 S. Ct. 2151, 2157 (1995)

(explaining that immunity issues are distinct from the merits of the action). This appeal

follows.

                                     DECISION

       The doctrine of sovereign immunity historically prevented lawsuits against the state

and its municipalities without their consent. Nusbaum v. Blue Earth Cty., 422 N.W.2d 713,

717 (Minn. 1988). Following a national trend to abolish the doctrine, Minnesota abolished

sovereign immunity with respect to both state and municipal tort liability. See Nieting v.

Blondell, 306 Minn. 122, 132, 235 N.W.2d 597, 603 (1975); Spanel v. Mounds View Sch.

Dist. No. 621, 264 Minn. 279, 281, 118 N.W.2d 795, 796 (1962). In its place, the doctrine

has been replaced with statutory immunity. See Minnesota Municipal Tort Liability Act,

Minn. Stat. §§ 466.01-.15 (2014).

       While municipalities have waived sovereign immunity regarding most tort claims,

an exception exists relating to parks and recreation areas. Minn. Stat. § 466.03, subd. 6e

(insulating municipalities from lawsuits based on the maintenance of parks if a claim arises

from a loss incurred by a park user). But there is an exception to this exception: a

municipality owes the same duty of care to users of a park that a private landowner owes

to trespassers. Id. Under this “trespasser exception,” a landowner is liable when (1) the


                                             4
landowner creates or maintains an artificial condition, (2) the landowner knows the

condition is likely to cause death or serious bodily harm, (3) the landowner has reason to

believe that the danger is concealed or hidden from the trespasser, and (4) the landowner

fails to warn of the condition and risk. Krieger v. City of St. Paul, 762 N.W.2d 274, 276

(Minn. App. 2009) (citing Restatement (Second) of Torts § 335 (1965)). A plaintiff bears

the burden of establishing all elements in order to defeat an immunity claim. Zacharias v.

Minn. Dep’t of Nat. Res., 506 N.W.2d 313, 320 (Minn. App. 1993), review denied (Minn.

Nov. 16, 1993). Therefore, the city is entitled to summary judgment if it can demonstrate

that McCullough cannot prove any one element of the trespasser exception.

      The district court denied summary judgment on immunity because it determined

that there are genuine issues of fact with respect to two elements of the trespasser

exception: whether the city had knowledge of the dangerous condition and whether the

condition was concealed. On appeal from a denial of summary judgment, in determining

whether there are any genuine issues of material fact, we view the evidence in the light

most favorable to the non-moving party and resolve all doubts against the moving party.

Rochester City Lines, Co. v. City of Rochester, 868 N.W.2d 655, 661 (Minn. 2015), cert.

denied, 136 S. Ct. 849 (2016). “Immunity is a legal question reviewed de novo.” Anderson

v. Anoka Hennepin Indep. Sch. Dist. 11, 678 N.W.2d 651, 655 (Minn. 2004).

      In our de novo review, we first address whether there is a genuine issue of material

fact regarding the city’s actual knowledge of the dangerous condition. We then consider

whether that condition was likely to cause serious bodily harm. Finally, we consider

whether the evidence demonstrates that the city had reason to believe that the danger was


                                            5
concealed from McCullough. Because there is sufficient evidence in the record that

permits reasonable persons to draw different conclusions on the knowledge and

concealment requirements of the trespasser exception, we affirm.2

       I.     There is a genuine issue of material fact regarding the city’s actual
              knowledge that the balustrade was likely to cause serious bodily harm.

       The city alleges that the trespasser exception does not apply because there is no

evidence to show that the city had actual knowledge about the condition and, even if the

city did have knowledge, it did not know it was seriously likely to cause injury.3 We

disagree. While determining whether a party has actual knowledge is often a case-specific

inquiry, our caselaw suggests that a lack of complaints or reported injuries may

demonstrate a lack of knowledge under the trespasser exception. Steinke v. City of

Andover, 525 N.W.2d 173, 177 (Minn. 1994), Prokop v. Indep. Sch. Dist. No. 625, 754

N.W.2d 709, 715 (Minn. App. 2008). The converse is true as well: a history of complaints

is evidence of actual knowledge.



2
  We determine only that the city is not entitled to recreational-use immunity as a matter of
law. As the district court pointed out in its careful opinion, the city may be eligible for
immunity after proving the facts supporting each of the elements of the statute and
disproving those that would support the trespasser exception.
3
  As a threshold matter, the parties dispute whether a landowner under the trespasser
exception must have actual or constructive knowledge of the condition. The city urges this
court to apply the actual-knowledge standard, which this court has utilized in recent years.
See Krieger, 762 N.W.2d at 278 (following most recent precedent that actual knowledge is
required); Prokop v. Indep. Sch. Dist. No. 625, 754 N.W.2d 709, 715 (Minn. App. 2008)
(same). In contrast, McCullough argues that the trespasser exception requires only
constructive knowledge. See Noland v. Soo Line R.R., 474 N.W.2d 4, 6 (Minn. App. 1991),
review denied (Minn. Sept. 13, 1991). Because we conclude that there is a genuine issue
of fact regarding the city’s knowledge under the stricter actual-knowledge standard, we
need not resolve this dispute.

                                             6
       Here, the city received two complaints and a vendor report about the balustrade

within ten years of McCullough’s accident. While the complaints were not about the

specific section of the balustrade which caused McCullough’s injury, taken together, the

evidence is enough to establish a factual dispute over whether the city knew that the

balustrade itself was susceptible to becoming loose or falling. In April 2005, the city

received a complaint which said: “[U]pright railing part—middle right half a pillar almost

fell, it could kill someone if it fell on them. It almost fell over when I was leaning on the

railing.” In June 2010, the city received another complaint about the wall: “Balustrade

wall has a loose section in the middle.” There is no evidence that either specific complaint

was resolved at the time. More critically, a vendor was hired by the city in February 2007

to inspect various buildings and to determine what repairs were necessary. In its report to

the city, the vendor determined that the spacing between the balusters did not meet code

requirements; pillars and railings were also missing. The vendor also observed that “joints

are disintegrating while the system is held up by a metal cable.” The vendor concluded

that the balustrade wall needed to be removed and rebuilt. The recommendation referred

to the entire structure, not specific sections of the balustrade.

       The city argues that these facts do not demonstrate actual knowledge because of the

results of its inspection of the entire balustrade one month before the collapse. In

September 2011, one month before McCullough was injured, the city inspected the

balustrade wall by hand and repaired or replaced all components that were loose or missing.

As a result of this inspection, there were no loose or missing components in the section of

balustrade that collapsed on October 9, 2011. Indeed, a report from city employees found


                                               7
that section of baluster to be “rock solid.” But as the district court correctly pointed out,

while this is evidence (perhaps even strong evidence) that the city lacked actual knowledge

that the balustrade was dangerous, it is not the only evidence on this critical point. Given

the previous complaints and its own vendor’s recommendation that the entire balustrade

be replaced, there is a factual dispute regarding whether the city had actual knowledge that

the balustrade was in a dangerous condition.

       Our conclusion is consistent with caselaw, which examines whether a city received

previous complaints or accident reports which would demonstrate actual knowledge. In

Johnson v. State, we determined that the state had knowledge of a condition (albeit not a

dangerous condition) because the state knew that sidewalk joints were prone to buckling.

478 N.W.2d 769, 771 (Minn. App. 1991), review denied (Minn. Feb. 27, 1992). And, while

there was a usual repair for buckled sidewalk joints, the state decided against making a

repair because the condition was not yet severe enough to require maintenance. Id.

       In contrast, we held that the state lacked knowledge that a tree was likely to cause

injury or death where frequent inspections of the tree found the tree to appear healthy and

there were no reports of any danger or a problem with limbs. Henry v. State, 406 N.W.2d

608, 611-12 (Minn. App. 1987), review denied (Minn. Aug. 12, 1987). The city argues

that Henry dictates the outcome here because, as in Henry, an inspection by employees

shortly before the accident did not reveal anything unusual or dangerous. We disagree.

The two previous complaints and the 2007 vendor report that recommended replacement

of the balustrade wall are additional evidence of knowledge which was lacking in Henry.




                                               8
       Having recognized disputed, material facts regarding the city’s actual knowledge of

the wall’s condition, we now turn to whether there is evidence that the condition was likely

to cause serious bodily harm or death. “Any artificial condition could be likely to cause

death or serious bodily harm under the right circumstances.” Johnson, 478 N.W.2d at 773.

Recognizing this, we look to whether the dangerous condition is likely to cause serious

bodily harm, not whether serious bodily harm might occur. Id. Conditions likely to cause

death or serious bodily injury typically have inherently dangerous propensities, like a high-

voltage electrical wire. See Restatement (Second) of Torts § 335, Illustration.

       The city contends that the balustrade, unlike a high-voltage wire, was not inherently

dangerous at the time of the accident. The only way a wall could be inherently dangerous

in a way that would meet the trespasser exception, according to the city, would be if the

wall was prone to spontaneous collapse. Here, it took the unanticipated weight of two

people simultaneously hanging from hammocks to cause the collapse, the city notes.

Accordingly, the city asserts that a large wall is similar to a raised sidewalk joint, which

this court determined was not “inherently dangerous.” Johnson, 478 N.W.2d at 773.

       We disagree.    While a 100-year-old wall with a history of missing or loose

balustrades and railings is not as inherently dangerous as a high-voltage wire, it is more

dangerous than a raised sidewalk.       This is particularly the case where each of the

balustrades can weigh up to 100 pounds and the railing up to 300 pounds. This wall is

similar to a staircase, which we found may be an inherently dangerous condition. See

Unzen v. City of Duluth, 683 N.W.2d 875, 877-78 (Minn. App. 2004) (affirming denial of




                                             9
summary judgment on city’s recreational-use immunity defense following plaintiff’s fall

down a flight of stairs), review denied (Minn. Oct. 27, 2004).

        Resolving the inferences in McCullough’s favor, we determine that there is

sufficient evidence to establish a jury question regarding whether the city had actual

knowledge of a dangerous condition which was likely to cause death or serious bodily

harm.

        II.   There is a genuine issue of material fact regarding whether the condition
              of the balustrade wall was concealed.

        Under the trespasser exception, recreational-use immunity is not available to a

municipality where a dangerous condition is hidden, rather than open and obvious. Unzen,

683 N.W.2d at 880. And a condition is not concealed if a brief inspection would reveal the

condition. Johnson, 478 N.W.2d at 773. Whether a condition is concealed depends on

whether the condition itself was visible, not whether McCullough actually saw and

appreciated the danger. Steinke, 525 N.W.2d at 177.

        The city contends that the condition of the balustrade wall was not hidden. Both

McCullough’s expert and the vendor report opined that the balustrade required lateral

support to be structurally sound. That lack of lateral support, the city argues, was visually

obvious. Based upon McCullough’s testimony and pictures of the balustrade, the upper

railing was not attached to the limestone piers. The same was true for the balusters. The

city asserts that McCullough should have seen this gap when he attached his hammock to

the balustrade. As a result, the city urges that it had no duty to protect trespassers—or

McCullough—from the condition.



                                             10
       We disagree. The balusters are attached to the limestone wall below and the railing

above with a rebar pin and mortar. McCullough’s expert opined that the mortar and pins

were prone to rust and corrosion, which a brief inspection would not have revealed absent

removing the individual balusters.     Without adequate lateral support because of the

disconnect with the limestone piers, the weight-bearing capacity was directed to the vertical

pins. As a result, while McCullough may have been able to see some evidence of the lack

of lateral support, the pins were not visible because they were inserted in the center of the

balusters. Because he could not see the extent of the vertical reinforcement through the

mortar and pins, McCullough contends that the condition was hidden. This disagreement,

as the district court concluded, creates a genuine issue of fact on whether the dangerous

condition was concealed.

       The city relies on our decision in Martinez v. Minn. Zoological Gardens, 526

N.W.2d 416, 418-19 (Minn. App. 1995), review denied (Minn. Mar. 29, 1995), to support

its argument that the condition of the balustrade was not hidden.          In Martinez, we

determined that floor railings, which were leaning against a wall, were not a concealed

condition because a brief inspection would have revealed the fact that the railings were not

fixed or secured. Id. But here, the balusters were fixed and secured to the lower and upper

railings. While McCullough could see that the upper railing was not attached to the

limestone piers, whether a brief inspection would have revealed that the balustrade could

hold the combined weight with his friend is genuinely disputed because the condition of

the mortar and pins was concealed. This situation is more akin to our decision in Unzen.

683 N.W.2d at 880. In that case, the plaintiff tripped on a metal nosing on a set of stairs.


                                             11
Id. at 877. We concluded that even though the metal nosing on a staircase was visible, the

actual dangerous condition—that the nosing was raised above the rubber floor tread on

each step—was not. Id. at 880; Prokop, 754 N.W.2d at 715-16 (clarifying Unzen by

reiterating that the question is whether the dangerous condition was visible, not whether

the nosing itself was visible).

       Viewing the evidence in the light most favorable to McCullough, the record contains

evidence which would permit reasonable persons to differ on whether the dangerous

condition was visible.

       Affirmed.




                                           12
