                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A14-0461

                                    Gregory Monson,
                                       Appellant,

                                           vs.

                                    Jeff Suck, et al.,
                                     Respondents.

                               Filed October 14, 2014
                               Reversed and remanded
                                   Johnson, Judge

                               Cook County District Court
                                File No. 16-CV-12-297

Sean M. Quinn, Falsani, Balmer, Peterson, Quinn & Beyer, Duluth, Minnesota (for
appellant)

David J. Hoekstra, David M. Werwie & Associates, St. Paul, Minnesota (for respondents)

      Considered and decided by Connolly, Presiding Judge; Johnson, Judge; and

Hooten, Judge.

                                    SYLLABUS

      If a person constructs an improvement to real property and continues to own or

possess the property, the person potentially may be subject to two different bases of tort

liability. If the person is sued for negligent construction of an improvement that was

completed more than ten years before a plaintiff’s injury, the claim is barred by the

statute of repose in section 541.051, subdivision 1(a), of the Minnesota Statutes. But if

the person is sued for negligent failure to use reasonable care to ensure the safety of
persons who enter the property, the claim is not barred by the statute of repose in section

541.051, subdivision 1(a), because of the exception in subdivision 1(d) of the statute.

                                      OPINION

JOHNSON, Judge

       Gregory Monson fell off the top of a set of steps that are connected to a deck on

the back of a house. The deck is approximately six or seven feet above the ground. The

steps did not have a handrail. The house is owned by Jeff Suck and Dwane Smith, who

built it themselves 13 years earlier.    Monson sued Suck and Smith for injuries he

sustained in the fall. The district court granted summary judgment to Suck and Smith on

the basis of the ten-year statute of repose in section 541.051, subdivision 1(a), of the

Minnesota Statutes, which applies to improvements to real property. We conclude that

the district court properly ruled that the statute of repose bars Monson’s claim that Suck

and Smith negligently constructed the deck and steps. But we conclude that the district

court erred by ruling that the statute of repose also bars Monson’s claim that Suck and

Smith negligently maintained the premises. Therefore, we reverse and remand for further

proceedings.

                                         FACTS

       In 1997, Suck and Smith designed and built a duplex house in the city of Grand

Marais on property that they jointly owned. Suck moved into the house in late 1997 and

has lived there ever since.

       Attached to the back of the house is a 10-foot-by-12-foot deck, which is

approximately six or seven feet above the ground. A sliding-glass door allows access


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between the deck and the house. Ten steps, each three feet wide, allow access between

the deck and the back yard. The deck has a railing around its perimeter. In 2010, there

was no handrail on either side of the steps.

       Monson and Suck have been friends for many years. In August 2010, Monson and

his family moved from Moorhead to Grand Marais. At Monson’s request, Suck allowed

Monson and his family to stay temporarily in a camper on the back part of Suck’s and

Smith’s property. While Monson and his family were staying in the camper, Monson

used the deck and its steps several times each day to go to and from the house.

       In the early-evening hours of August 23, 2010, Monson and his family were

cooking dinner and watching television inside Suck’s house. Monson drank four or five

beers. At approximately 9:30 p.m., Monson decided to return to the camper via the back

deck. When Monson stepped onto the deck, outdoor lighting automatically turned on to

illuminate the deck and the steps. As Monson took the first step down, his right leg went

numb such that he felt as if there was “nothing there.” Monson’s right leg had “given

out” in this manner five or six times in the past, but he never had fallen down because of

it. Monson fell off the side of the steps onto the ground. He suffered a fractured spine,

which required a six-level fusion.

       In August 2012, Monson commenced this action against Suck and Smith. He

alleged that his injuries were caused by the absence of a handrail, which he alleged “was

a result of negligence and the maintenance of the property by Defendants.” In November

2013, Suck and Smith moved for summary judgment on the basis of, among other things,

the ten-year statute of repose in section 541.051, subdivision 1(a), of the Minnesota


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Statutes.1 In December 2013, the district court granted the motion on the basis of the

statute of repose. Monson appeals from the judgment entered in favor of Suck and

Smith.

                                           ISSUE

         Does the statute of repose in section 541.051, subdivision 1(a), of the Minnesota

Statutes bar Monson’s claim that Suck and Smith negligently maintained the steps of the

deck?

                                        ANALYSIS

         A district court must grant a motion for summary judgment if the evidence

demonstrates “that there is no genuine issue as to any material fact and that either party is

entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03. A genuine issue of

material fact exists if a rational trier of fact, considering the record as a whole, could find

for the non-moving party. Frieler v. Carlson Mktg. Grp., Inc., 751 N.W.2d 558, 564

(Minn. 2008). This court applies a de novo standard of review to the district court’s legal

conclusions on summary judgment and views the evidence in the light most favorable to

the non-moving party. RAM Mut. Ins. Co. v. Rohde, 820 N.W.2d 1, 6 (Minn. 2012); Day

Masonry v. Independent Sch. Dist. 347, 781 N.W.2d 321, 325 (Minn. 2010). This court


         1
        Suck and Smith previously moved for summary judgment based on the statute of
repose in August 2013. In response, Monson argued that Suck and Smith had not
pleaded the statute of repose in their answer. Suck and Smith requested leave to amend
their answer to include the statute of repose as an affirmative defense. The district court
granted the motion to amend the answer, extended the discovery deadline to allow
additional discovery on the statute-of-repose issue, and denied the motion for summary
judgment without prejudice. Suck and Smith then amended their answer to assert the
statute-of-repose defense.

                                              4
also applies a de novo standard of review to matters of statutory interpretation. Day

Masonry, 781 N.W.2d at 326.

                                             A.

       Monson argues that the district court erred by concluding that his action is barred

by the ten-year statute of repose in section 541.051, subdivision 1(a), of the Minnesota

Statutes.2 The statute provides, in relevant part, as follows:

                      (a)   Except where fraud is involved, no action by
              any person in contract, tort, or otherwise to recover damages
              for any injury to property, real or personal, or for bodily
              injury or wrongful death, arising out of the defective and
              unsafe condition of an improvement to real property, shall be
              brought against any person performing or furnishing the
              design, planning, supervision, materials, or observation of
              construction or construction of the improvement to real
              property or against the owner of the real property more than
              two years after discovery of the injury, nor in any event shall
              such a cause of action accrue more than ten years after
              substantial completion of the construction.           Date of
              substantial completion shall be determined by the date when
              construction is sufficiently completed so that the owner or the
              owner’s representative can occupy or use the improvement
              for the intended purpose.

                     ....

       2
        It is unclear from Monson’s brief whether he also is challenging the district
court’s grant of respondents’ motion to amend their answer. If so, his argument would be
without merit. A pleading may be amended “by leave of court,” Minn. R. Civ. P. 15.01,
and leave to amend “should be freely granted, except where to do so would result in
prejudice to the other party,” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). This
court applies an abuse-of-discretion standard of review to such a ruling. Hunter v.
Anchor Bank, N.A., 842 N.W.2d 10, 17-18 (Minn. App. 2013), review denied (Minn.
Mar. 18, 2014). In this case, the district court extended the discovery deadline for the
express purpose of allowing Monson to conduct discovery relevant to the statute of
repose. Monson does not identify any way in which he was prejudiced. Thus, if asked,
we would conclude that the district court did not abuse its discretion by granting
respondents’ motion to amend their answer and extending the discovery deadline.

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                     (d)    Nothing in this section shall apply to actions for
              damages resulting from negligence in the maintenance,
              operation or inspection of the real property improvement
              against the owner or other person in possession.

Minn. Stat. § 541.051, subd. 1 (2012) (emphasis added). A statute of repose differs from

a statute of limitations in that the repose period starts to run on the date of the substantial

completion of the improvement, while the limitations period starts to run on the date of a

plaintiff’s injury. Olmanson v. LeSueur Cnty., 693 N.W.2d 876, 880 n.2 (Minn. 2005).

       In light of subdivision 1(a), a defendant may assert a statute-of-repose defense in

response to a claim of negligent construction if an alleged injury arose from an

improvement to real property that was substantially completed more than ten years before

a plaintiff’s injury. Minn. Stat. § 541.051, subd. 1(a); Siewert v. Northern States Power

Co., 793 N.W.2d 272, 286 (Minn. 2011).            But subdivision 1(d) is an exception to

subdivision 1(a). See Minn. Stat. § 541.051, subd. 1(d). Accordingly, a person who

owns or possesses real property may not assert a statute-of-repose defense in response to

a claim described in subdivision 1(d).       See id.    The supreme court has stated that

subdivision 1(d) preserves claims that an owner or possessor of real property has

breached the “duty under common law to use reasonable care for the safety of entrants on

their land, including the duty to inspect their premises for dangerous conditions and to

repair them or warn entrants about them.” Olmanson, 693 N.W.2d at 881. “The statute

of repose does not bar claims that this duty has been breached.” Id. at 881-82, 883-84. A

plaintiff who claims that the exception in subdivision 1(d) applies bears the burden of

establishing that “at least a question of material fact exist[s] with respect to [the


                                              6
defendant’s] negligence.” State Farm Fire & Cas. v. Aquila Inc., 718 N.W.2d 879, 886

(Minn. 2006).

       The operation of the exception in subdivision 1(d) is illustrated by Olmanson, a

case in which a country club improved its property by installing a culvert under a county

road to allow golfers to drive golf carts between two parts of a golf course. 693 N.W.2d

at 878. More than ten years later, a snowmobiler was injured when he drove over one

end of the culvert. Id. at 879. The snowmobiler brought a negligence claim against the

country club (and against the county, which held an easement in the property). Id. The

snowmobiler alleged that the country club, as owner of the property, breached its duty of

reasonable care by failing to warn of the culvert. Id. The district court granted summary

judgment to the country club based on the statute of repose. Id. But the supreme court

held that the district court erred because the snowmobiler’s claim was within the

exception to the statute of repose. Id. at 881-82.

       In this case, Monson appears to concede that his claim is barred by the statute of

repose to the extent that he alleges a claim of negligent construction of the steps of the

deck. But Monson contends that his claim is not completely barred because he also

alleges a claim that Suck and Smith breached their common-law duty to use reasonable

care to ensure the safety of persons who enter their property. More specifically, Monson

contends that Suck and Smith breached their common-law duty because they did not

remedy the dangerous condition of the steps by adding a handrail. Because Monson’s

claim is based on the common-law duty owed by an owner or a possessor of real

property, Monson’s claim is governed by the statutory exception in subdivision 1(d) and,


                                             7
thus, is not barred by subdivision 1(a). See Olmanson, 693 N.W.2d at 881-82; see also

Sullivan v. Farmers & Merchants State Bank, 398 N.W.2d 592, 595 (Minn. App. 1986),

review denied (Minn. Mar. 13, 1987).

                                            B.

       In reaching this conclusion, we reject Suck’s and Smith’s contention that the

exception in subdivision 1(d) of the statute of repose is narrower than Monson’s claim

that Suck and Smith should be held liable because they did not install a handrail on the

steps. In support of this contention, Suck and Smith rely on this court’s opinion in Fisher

v. County of Rock, 580 N.W.2d 510 (Minn. App. 1998), rev’d on other grounds, 596

N.W.2d 646 (Minn. 1999). In Fisher, the county built a guardrail along the side of a road

in 1939 such that each end of the guardrail was exposed, “in compliance with the

standards then in effect.” See id. at 511. Decades later, a man was killed when his

vehicle struck one end of the guardrail. See id. His heirs sued the county, claiming that

the county negligently maintained the guardrail by not installing an extension on each

end of the guardrail that sloped gradually to the ground. See id. The district court

granted summary judgment to the county on the basis of the statute of repose, and this

court affirmed on the ground that the plaintiff’s claim was not within the exception. 3 Id.

at 512. We reached that conclusion in part by parsing the language of the exception and

reasoning that the plaintiff’s claim did not allege “negligence in the maintenance,


       3
       When Fisher was decided, the exception to the statute of repose was codified in
subdivision 1(c). See Minn. Stat. § 541.051, subd. (c) (1998). The statutory language of
the exception has remained unchanged since it was enacted in 1980. See 1980 Minn.
Laws ch. 518, § 2, at 595-96 (codified at Minn. Stat. § 541.051, subd. 1 (1980)).

                                            8
operation or inspection of the real property improvement.” Id. at 512. We expressly

rejected the plaintiff’s argument “that the term ‘maintenance’ in [the exception] should be

broadly construed to include the duty to install guardrails.” Id.

       The district court in this case did not cite Fisher, but its order expresses essentially

the same rationale. The district court stated that Suck’s and Smith’s “failure to add

handrails to the stairway does not fit under the maintenance, operation, or inspection

exception” in subdivision 1(d) because Monson’s claims “are related to the absence of a

handrail, not the general maintenance, operation, or inspection of the stairway.” The

district court’s reasoning and the parties’ appellate arguments raise the question whether

Fisher still is good law after Olmanson.

       The implication of Fisher is that the exception to the statue of repose is narrower

than the common-law duty of an owner or possessor of real property to use reasonable

care to protect the safety of persons who enter the property. See 580 N.W.2d at 511-12.

But the supreme court’s subsequent opinion in Olmanson is fairly clear in saying that the

exception is not narrower than the common-law duty of an owner or possessor of real

property. See 693 N.W.2d at 880-81. This principle is apparent from two parts of the

Olmanson opinion.      First, the supreme court noted Olmanson’s argument that the

statutory exception in subdivision 1(d) “preserves the common-law duty of reasonable

care owed by landowners to entrants, as evidenced by the use of negligence terminology

in the subdivision,” and then stated, “We agree with Olmanson’s interpretation of Minn.

Stat. § 541.05.” Id. at 880. The supreme court proceeded to discuss the contours of the

common law and the duty to repair or warn of a dangerous condition. Id. at 880-81.


                                              9
Second, the supreme court concluded its analysis of the issue by referring again to the

common-law duty and then stating, “The statute of repose does not bar claims that this

duty has been breached, because under the plain language of Minn. Stat. § 541.051,

subd. 1[(d)], owners or other persons in possession retain their ordinary landowner

liability for negligent maintenance, operation, and inspection of real property

improvements.” 693 N.W.2d at 881-82. In essence, the Olmanson court interpreted the

exception in subdivision 1(d) to be coextensive with the common-law duty of reasonable

care.   See id.   Furthermore, Olmanson is consistent with the supreme court’s prior

opinion in Ocel v. City of Eagan, 402 N.W.2d 531 (Minn. 1987), in which the supreme

court stated rather broadly, “The intent of the exception appears to be . . . to leave

undisturbed the limitation period for ordinary landowner’s liability.” Id. at 534.

        The analysis in Fisher is inconsistent with the analysis in both Olmanson and

Ocel. The district court in this case erred by analyzing Monson’s negligent-maintenance

claim in the same manner as Fisher. Since Fisher, the supreme court has clarified that

the exception for negligent maintenance, operation, and inspection includes all

recognized facets of the common-law duty of an owner or possessor of real property.

The exception to the statute of repose may encompass the duty to repair the steps by

installing a handrail, if such a duty is prescribed by the common law.          In light of

Olmanson, we conclude that the exception to the statute of repose applies to Monson’s

claim that Suck and Smith negligently failed to add a handrail to the steps of the deck.

Thus, Monson’s negligent-maintenance claim is not barred by the statute of repose.




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                                             C.

       Before concluding, we wish to be specific about the scope of this court’s opinion

and our remand.

       First, we do not reach any conclusion or express any views as to whether

Monson’s claim is a viable claim, whether he has mustered sufficient evidence to support

the claim if it is a viable claim, or whether the claim ultimately will be successful at trial

if a trial is appropriate. We conclude only that the district court erred by reasoning that

Monson’s claim is barred by the statute of repose on the ground that the claim does not

concern the maintenance, operation, or inspection of the steps of the deck. We reach that

conclusion because Olmanson teaches that the statute of repose does not bar a claim that

is based on the common-law duty of an owner or possessor of real property to use

reasonable care to protect the safety of persons who enter the property. Whether Suck’s

and Smith’s common-law duty extends as far as Monson has alleged, and whether Suck

and Smith breached their common-law duty, are questions to be resolved in further

proceedings. See Aquila Inc., 718 N.W.2d at 886.

       Second, we have not considered and do not resolve the alternative arguments that

Suck and Smith presented to the district court in their motion for summary judgment.

Specifically, Suck and Smith argued in the alternative that the dangerous condition of the

steps was open and obvious, that Monson’s claim is barred by the doctrine of primary

assumption of the risk, and that the dangerous condition of the steps did not cause

Monson’s injuries.     The district court did not need to address Suck’s and Smith’s

alternative arguments because the district court decided that they are entitled to summary


                                             11
judgment on the basis of the statute of repose. On appeal, Suck and Smith merely refer to

their alternative arguments in their responsive appellate brief, suggesting that this court

should affirm the district court’s grant of summary judgment on one or more of those

alternative grounds. Monson did not file a reply brief. Because the district court has not

yet addressed Suck’s and Smith’s alternative arguments, and because the parties have not

fully presented appellate arguments concerning those issues, we conclude that it is

appropriate for this court to refrain from addressing the alternative arguments so that the

district court may address them in the first instance in further proceedings. See, e.g.,

Gallagher v. BNSF Ry. Co., 829 N.W.2d 85, 95 (Minn. App. 2013).

                                      DECISION

       The district court erred by granting summary judgment to Suck and Smith on

Monson’s negligent-maintenance claim on the basis of the statute of repose in section

541.051, subdivision 1(a), of the Minnesota Statutes. We reverse and remand to the

district court for further proceedings not inconsistent with this opinion.

       Reversed and remanded.




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