                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-1061
                                   ___________

Phyllis A. Engleson,                      *
                                          *
              Plaintiff/Appellant,        *
                                          *
       v.                                 *
                                          *
Little Falls Area Chamber of              *
Commerce, a Minnesota non-profit          *
corporation; City of Little Falls, a      *
Minnesota municipal corporation,          *
                                          * Appeal from the United States
              Defendants/Appellees.       * District Court for the District of
                                          * Minnesota.
City of Little Falls,                     *
                                          *
              Cross Claimant/Appellee, *
                                          *
       v.                                 *
                                          *
Little Falls Area Chamber of              *
Commerce,                                 *
                                          *
              Cross Defendant/Appellee. *
                                     ___________

                             Submitted: October 24, 2003

                                  Filed: March 29, 2004
                                   ___________

Before BYE, HANSEN, and MELLOY, Circuit Judges.
                                    ___________

BYE, Circuit Judge.

       Phyllis A. Engleson, a North Dakota resident, brought a diversity action against
the City of Little Falls, Minnesota, and the Little Falls Area Chamber of Commerce
(collectively the City), alleging the City's negligent placement of traffic cones at the
Little Falls Area Arts & Crafts Fair had caused her to trip on a cone and sustain
personal injuries. The district court1 entered summary judgment for the City,
concluding it was not under a duty to warn fair goers of the presence of safety
markers and in any event enjoyed discretionary immunity under Minnesota law.

      Because of diversity between the parties and Ms. Engleson alleging damages
in excess of $75,000, the district court did have subject-matter jurisdiction under 28
U.S.C. § 1332(a), and we have jurisdiction under 28 U.S.C. § 1291. Without
reaching the discretionary-immunity defense, we now affirm.

                                           I

       Phyllis A. Engleson was one of approximately 100,000 visitors to the Little
Falls Area Arts & Crafts Fair in 1998 and was the only one known to have sustained
personal injuries by tripping on a traffic cone.

       The Fair has been the largest public event in the Little Falls area for over
twenty-five years. In 1998, over 1,000 vendors and exhibitors set up their booths on
the sidewalks of the several city blocks of the Fair district. To accommodate visitors,
the City converted the parallel parking areas along the curb on either side of each
street into pedestrian walkways, set off from the vehicular-traffic lanes by cones


      1
       The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.

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placed at intervals on the solid-white fog lines ten feet from the curbs. The City had
so used these traffic cones for several years for crowd control and to separate
vehicular traffic from pedestrians in attendance.

       Though Ms. Engleson had attended the Fair on two occasions prior to 1998 and
spent three hours at the 1998 Fair before the mishap occurred, she tripped on the cone
as she was walking with a friend along one of the fog lines. She had noticed cars
shared the streets with pedestrians, but she did not see any of the traffic cones before
her fall. They were twenty-eight inches tall, had two reflector collars, and were
placed at sixty-foot intervals so as six or seven lined each side of the street in a given
block.

       In the weeks preceding the Fair, Chamber of Commerce officials met on
several occasions with Little Falls officials, including the Chief of Police, Manager
of City Services, and Street Supervisor. At a meeting held on August 19, 1998, these
officials approved a map of the restricted parking areas in the Fair district. Though
Little Falls owned plastic fencing, the officials decided to use cones and signs to
restrict parking, because the fencing would require costly drilling and restrict access
to vendors by forcing visitors to circumvent the fencing and cross the streets at
intersections. Except for minor modifications, the plan which emerged resembled the
plan the City had used for as long as fourteen years.

       Through its insurance agent, the City received claims from two other visitors
who had previously tripped on a cone. In 1995, a visitor fell and damaged her
glasses. In 1998, on the day of Ms. Engleson's accident, another visitor tripped, but
her insurance claim indicated her injuries were unknown.




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                                          II

     Because of this being a diversity action, we apply the substantive law of the
forum state, Minnesota. Gylten v. Swalboski, 246 F.3d 1139, 1141 (8th Cir. 2001).

       We review motions for summary judgment de novo, applying the same standard
as the district court: whether the record, viewed in a light most favorable to the
nonmoving party, shows there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. Id.; Fed. R. Civ. P. 56(c). We regard
summary judgment not as a disfavored procedural shortcut, but rather as an integral
part of the Federal Rules, which are designed to secure a just, speedy, and
inexpensive determination of a given cause of action. Celotex Corp. v. Catrett, 477
U.S. 317, 327 (1986).

       Because the parties agree on all the material facts as we have recited them
above, we need determine only whether the district court properly concluded the City
was entitled to judgment as a matter of law. In Minnesota, a property owner has a
reasonable duty to protect persons from being injured by foreseeable dangerous
conditions on the property, unless the risk of harm is obvious. Rinn v. Minn. State
Agric. Soc'y, 611 N.W.2d 361, 364 (Minn. 2002). The district court reasoned the
City was relieved of a duty to warn Fair attendees of the cones because they serve as
safety markers and so were obvious as a matter of law.

      Ms. Engleson argues the court erroneously focused on the size and color of the
cones instead of their use and placement at the Fair. She argues the City was
negligent in placing the cones at sixty-foot intervals amid the throngs of visitors,
where they would be obscured from view. She concedes in most circumstances or in
the abstract the traffic cones would be obvious as a matter of law but were obscured
by the crowd at the time of her mishap.



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       Minnesota courts have adopted the relevant provision of the Restatement
(Second) of Torts. See Louis v. Louis, 636 N.W.2d 314, 319-21 (Minn. 2001).
According to the Restatement, a condition is not obvious unless both the condition
and the risk are apparent to and would be recognized by a reasonable person in the
position of the visitor, exercising ordinary perception, intelligence, and judgment.
Restatement (Second) of Torts § 343A, cmt. b (1965). In other words, the test for
what constitutes an obvious danger is an objective test; the question is not whether
the injured party actually saw the danger, but whether the danger was in fact visible.
Louis, 636 N.W.2d at 321.

      Here, the cones would have been visible to a reasonable person exercising
ordinary perception and judgment. The twenty-eight-inch cones were bright orange
containing reflective collars. As the district court stated, the cone itself was a
warning marker and visible.

       Moreover, the placement of the cones did not make them so much less obvious
that the City had a duty to warn Ms. Engleson. Six or seven cones were placed on
either side of each block, and Ms. Engleson concedes the cones were effective in
separating pedestrian from vehicular traffic. In other words, the fog lines and cones
cleared a corridor between people and cars, and because she was halfway down the
block at the time of her accident, Ms. Engleson could have seen at least two and more
likely three cones by looking down the corridor in either direction on either side of
the street to the end of the block. To a reasonable person who had decided to walk
at the edge of traffic in a crowded fair, the cones would have been obvious, or so we
conclude the Minnesota courts would hold. An invitee is under a duty to exercise
reasonable care for his or her own safety and to observe that which is obvious to the
ordinarily prudent person. Tonne v. Becker Grain & Lbr. Co., 139 N.W.2d 797, 799
(Minn. 1966).




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       Ms. Engleson also argues the City had a duty to warn her even of an obvious
danger because the City had reason to anticipate she would be distracted. The
Minnesota Supreme Court "has consistently held that distracting circumstances are
factors for a jury to consider and may excuse a plaintiff's failure to see that which is
in plain sight." Van Gordon v. Herzog, 410 N.W.2d 405, 406 (Minn. Ct. App. 1987).
As the Restatement explains:

      There are, however, cases in which the possessor of the land can and
      should anticipate that the dangerous condition will cause physical harm
      to the invitee notwithstanding its known or obvious danger . . . . 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 . . . .

Restatement (Second) of Torts § 343A, cmt. f (1965).

       As an exception to the general rule, this provision triggers a duty to warn of an
obvious danger only where the land possessor should anticipate even a reasonable
visitor will miss the danger. Stated from the visitor's viewpoint, the distraction will
excuse the visitor's failure to see what is in plain sight only if a reasonable person
would have missed the obvious danger for the distraction. In Van Gordon, for
example, the court held a jury question existed as to whether the activity in a crowded
bar distracted the plaintiff from the otherwise obvious danger of the ankle-high sill
of an open window. 410 N.W.2d at 407.

       Nothing in the circumstances of the Fair should have caused the City to
anticipate the cones would pose a hazard to visitors. The cones were not inherently
dangerous to pedestrians; indeed, the cones were there to keep people and vehicles
apart. Other than the normal activities of the Fair which 100,000 visitors negotiated
as they navigated the Fair district, there were no distractions the City could have



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anticipated would cause a reasonably prudent pedestrian to trip on a visible safety
cone.2 Ms. Engleson identifies no such distraction.

        We are mindful of her sentiment expressed by which the City should bear some
responsibility for her alleged injuries; after all, she would not have sustained them
had the City not invited the public to the Fair and made use of the cones. Taken to
its ultimate conclusion, however, Ms. Engleson's position invites us to impose on
land possessors a legal duty to provide visitors warning upon warning, ad infinitum.
Needless to say, such a position would impose undue costs on possessors of land,
while permitting visitors to abdicate reasonable care for their own persons. We think
Minnesota, like all other tort regimes known to us, has struck a better balance: The
land possessor's legal duty starts where the invitee's responsibility to care for self
ends. "[N]o one needs notice of what he knows or reasonably may be expected to
know." Baber v. Dill, 531 N.W.2d 493, 496 (Minn. 1995) (quotation omitted).

                                         III

       A prima facie case for negligence in Minnesota requires establishment of the
textbook elements of duty, breach, causation, and damage. See Gilbertson v.
Leininger, 599 N.W.2d 127, 130 (Minn. 1999). Because Ms. Engleson has failed to
establish the City was under a duty to warn her of the safety cone, she has not made
out a prima facie case for negligence, and we affirm the district court's judgment
without reaching the City's discretionary-immunity defense. See Gylten, 246 F.3d at
1142, 1145.




      2
        Contrary to Ms. Engleson's assertions, the record is devoid of evidence the
City had actual notice other visitors sustained personal injuries tripping on cones.
The person who tripped in 1995 only broke her glasses. A second person, whose
injuries were unknown, tripped on a cone the very day of her mishap.

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      Accordingly, we affirm the district court's entry of summary judgment for
defendants.
                    ______________________________




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