Sirek by Beaumaster v. State, Dept. of Natural Resources

• Decision Date: 05 March 1993
• Docket Number: No. C5-91-2063,C5-91-2063
• Citation: 496 N.W.2d 807
• Parties: Michelle SIREK, a minor, by Mabel BEAUMASTER, Guardian ad Litem, Respondents, v. STATE of Minnesota, DEPARTMENT OF NATURAL RESOURCES, Petitioner, Appellant, and Douglas SCHUTTA, Defendant and Third-Party Plaintiff, Respondent, v. Emmett SIREK, et al., Third-Party Defendants, Respondents.
• Court: Minnesota Supreme Court

Page 807

496 N.W.2d 807

Michelle SIREK, a minor, by Mabel BEAUMASTER, Guardian ad

Litem, Respondents, v. STATE of Minnesota, DEPARTMENT OF NATURAL RESOURCES, Petitioner, Appellant, and Douglas SCHUTTA, Defendant and Third-Party Plaintiff, Respondent, v. Emmett SIREK, et al., Third-Party Defendants, Respondents.

No. C5-91-2063.

Supreme Court of Minnesota.

March 5, 1993.

Syllabus by the Court

1. When entrants onto state park land have the legal status of trespassers by virtue of the Minnesota Tort Claims Act, Minn.Stat. Sec. 3.736, subd. 3(h) (1992), and children are accompanied by adults in an area of state parks where unsupervised children are not customarily found, the landowner is subject to the general standard of care owed to trespassers under Restatement (Second) of Torts Sec. 335 (1965), rather than the higher standard owed to children under Restatement (Second) of Torts Sec. 339 (1965).

2. Under section 335, where the artificial conditions on the land which led to the injury are obvious, the landowner is entitled to judgment as a matter of law.

Hubert H. Humphrey, III, Atty. Gen., Mary Ann Bernard, Sp. Asst. Atty. Gen., St. Paul, for appellant.

Sally S. Spector, Mitchell R. Spector, Abrams & Spector, P.A., Minneapolis, for Michelle Sirek, et al.

Gene P. Bradt, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, for Douglas Schutta.

William L. Lubov, Minneapolis, for Emmett Sirek, et al.

Heard, considered, and decided by the court en banc.

KEITH, Chief Justice.

On June 26, 1988, six-year-old Michelle Sirek and her family visited Interstate State Park ("Park"). After swimming and a picnic, they decided to hike the park's mile-long Curtain Falls Trail ("Trail"). State Highway 8 divides the parking lot and picnic area, to the east, from the start of the Trail, on the west. A pedestrian culvert running under Highway 8 provided a passage from the parking lot to the start of the Trail. The Trail did not return pedestrians to the culvert but instead ended at a point directly across Highway 8 from the parking lot and nearly 500 feet from the culvert.

When the Sireks reached the end of the Trail at around 5:00 that afternoon, they faced Highway 8, which was congested with heavy traffic. The Sireks waited approximately 15 minutes to cross the highway. When their ten-year-old son grew tired of waiting, his parents allowed him to walk back on the Trail alone. ¹ While waiting for traffic to clear, Mr. Sirek held Michelle's hand "off and on" but dropped her hand when he stepped out to look for traffic. At this point, traffic approaching from the left was clearly visible, and while the sight distance to the right was substantial, it was not optimal. ²

As he looked to his right, Mr. Sirek remembers seeing the van which ultimately hit Michelle before he looked back to the left to wait for another car to pass. The van driver, Douglas Schutta, also indicated that he saw the Sireks before Michelle ran onto the highway. However, Michelle stated that she did not see any cars and, upon seeing none, attempted to cross the highway. Neither parent saw her until she had crossed one lane of traffic and was in front of the van, which hit her with its left front fender. The van was traveling at least 35 miles per hour, and the impact caused Michelle to suffer substantial brain damage and other bodily injuries.

Prior to this accident, no known pedestrian accidents occurred at the Trail in its 60-year existence. However, after the accident, the Trail was reconfigured to loop back to the culvert to allow hikers to pass safely under Highway 8 at both the beginning and end of the Trail. ³

In response to the accident, Michelle Sirek's guardian ad litem commenced suit against the driver of the vehicle and the Department of Natural Resources (DNR). The DNR moved for summary judgment, asserting that it was immune from liability pursuant to Minn.Stat. Sec. 3.736, subd. 3(h) (1992). The trial court denied this motion, finding material fact questions regarding the DNR's breach of the statutory duty of care under either the child trespasser standard of Restatement (Second) of Torts Sec. 339 (1965), or the adult standard of Restatement (Second) of Torts Sec. 335 (1965). The DNR appealed the denial of summary judgment as of right under McGovern v. City of Minneapolis, 475 N.W.2d 71 (Minn.1991). The court of appeals affirmed the trial court and held that the child trespasser standard of section 339 applies. Sirek v. State, Dep't of Natural Resources, 484 N.W.2d 817 (Minn.App.1992).

On appeal to this court, the issues are (1) whether a trespassing child accompanied by adults is owed the general standard of care owed to trespassers under section 335 or the somewhat higher standard owed to child trespassers under section 339, and (2) whether the DNR has sustained its burden of demonstrating that no genuine issues of fact exist and that it is entitled to summary judgment.

I.

In defining the general duty owed by state agencies to state park visitors, the Minnesota Tort Claims Act grants limited immunity by providing that the state, its agencies, and its employees are not liable for

a loss incurred by a user arising from the construction, operation, or maintenance of the outdoor recreation system * * * except that the state is liable for conduct that would entitle a trespasser to damages against a private person.

Minn.Stat. Sec. 3.736, subd. 3(h) (1992). In Green-Glo Turf Farms, Inc. v. State, 347 N.W.2d 491, 494 (Minn.1984), this court held that the DNR and similar state agencies are immune from liability unless they fail to conform to the standard of conduct imposed under the law of trespass as defined in Restatement (Second) of Torts Secs. 333-339. Thus, while this statute does not wholly absolve state agencies from liability, it enables them to treat visitors, in the tort context, as trespassers rather than licensees or invitees.

The rule of law in trespass cases contrasts sharply from the duty of reasonable care owed by most landowners. In a trespass case, the landowner generally owes no duty at all because "a possessor of land is not liable to trespassers for physical harm caused by his failure to exercise reasonable care to put the land in a condition reasonably safe for their reception, or to carry on his activities so as not to endanger them." Restatement (Second) of Torts Sec. 333 (1965).

Although section 3.736, subd. 3(h), makes it clear that the DNR would be liable for damages only if a trespasser could recover damages from a private person, Minnesota courts have not definitively determined whether trespassing children accompanied by adults in state parks can avail themselves of the heightened standard owed to "child trespassers" under section 339 of the Restatement or whether they are instead limited to the general trespasser standards of section 335.

Section 335, the general provision on the duty owed to trespassers, establishes a limited standard of care. Specifically, this section 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.

Restatement (Second) of Torts Sec. 335 (1965); see Hanson v. Bailey, 249 Minn. 495, 500, 83 N.W.2d 252, 257-58 (1957). Under this standard, a landowner will be liable only for failing to exercise reasonable care to warn trespassers about hidden, artificial dangers created or maintained by the landowner. Hughes v. Quarve & Anderson Co., 338 N.W.2d 422, 426 (Minn.1983). The landowner has no duty to eliminate these conditions from the land in order to accommodate trespassers but only to give them adequate warning. Green-Glo, 347 N.W.2d at 494. In so doing, however, a landowner is "entitled to assume trespassers will realize that no preparation has been made for their reception and will, therefore, be on the alert to observe the conditions which exist upon the land." Restatement (Second) of Torts Sec. 335 cmt. f (1965).

In contrast, section 339 imposes a heightened standard of care on landowners with respect to child trespassers. Under this section, a claimant must establish the following elements:

A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if

(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and

(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight compared with the risk to children involved, and

(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

Restatement (Second) of Torts Sec. 339 (1965); see Gimmestad v. Rose Bros. Co., 194 Minn. 531, 261 N.W. 194 (1935). Section 339 thus places a significantly higher burden on landowners. In some cases, it actually imposes a duty on landowners to reconfigure their land, rather than simply to warn children. Restatement (Second) of Torts Sec. 339 cmts. n &...