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STATE OF MINNESOTA IN COURT OF APPEALS A07-2387

Andre Gilmore, Appellant, vs. Walgreen Co., Respondent.

Filed January 20, 2009 Reversed and remanded Lansing, Judge Ramsey County District Court File No. 62-C1-06-011070 David Rochlin, Rochlin Law Firm, Ltd., Suite 412, 5200 Willson Road, Edina, MN 55424 (for appellant) William L. Davidson, Brian A. Wood, Matthew S. Frantzen, Lind, Jensen, Sullivan & Peterson, P.A., Suite 1700, 150 South Fifth Street, Minneapolis, MN 55402 (for respondent) Considered and decided by Lansing, Presiding Judge; Klaphake, Judge; and Worke, Judge. SYLLABUS A storeowner has a duty of reasonable care to protect an invitee from a dangerous condition, notwithstanding that the condition is open and obvious, if the storeowner should reasonably anticipate that other conditions or circumstances in the store will distract the invitee's attention from the obviously dangerous condition.

OPINION LANSING, Judge The district court granted summary judgment dismissing Andre Gilmore's negligence claim against Walgreen Co. (Walgreens) for injuries that Gilmore sustained when he tripped over an empty pallet located adjacent to the customer-service counter in a Walgreens store. On appeal from summary judgment, Gilmore argues that the district court erred when it determined that he did not present a genuine issue of material fact on the question of whether Walgreens owed Gilmore a duty to take actions that would have prevented the injury. Because the evidence would allow a reasonable fact-finder to conclude that Walgreens' employees should have anticipated the harm to Gilmore and taken steps to prevent his injury, we reverse and remand. FACTS Andre Gilmore provided evidence of the following facts, which are accepted as true for summary judgment. Gilmore went to a Walgreens store in St. Paul in October 2004 to purchase a disposable camera. After entering the store, he turned left and walked about 100 feet to the customer-service area. On his way to the counter, he observed cash registers on his right and left, stepped over some bags of candy that were strewn on the floor, and saw a display of fake pumpkins stacked about two feet high. When Gilmore approached the counter, the employee behind the counter was assisting other customers. Gilmore waited about ninety seconds. While he was waiting, he looked around and noticed that there were four or five VHS tapes on the floor nearby, but he saw nothing else on the floor. When it was his turn, Gilmore asked the employee 2

behind the counter where the disposable cameras were located. The employee pointed over Gilmore's shoulder and said, "They're right over there." Gilmore turned and took about one and a half steps forward and "the next thing [he] knew, [he] was on the ground." He had tripped on an empty pallet that was on the floor near the counter. The pallet was black and gray and was about two feet wide, three feet long, and five or six inches high. The floor underneath the pallet was white. Normally, the pallet is stacked with merchandise. But the pallet had been temporarily left empty that day because the employees "were switching over from Halloween merchandise to Christmas merchandise." Gilmore sustained injuries from his fall and sued Walgreens. He alleged that Walgreens acted negligently by failing to make the property safe for customers and by failing to warn of dangerous conditions. Walgreens moved for summary judgment, arguing that the complaint should be dismissed because the evidence, viewed in the light most favorable to Gilmore, did not establish the duty element of his negligence claim. The district court agreed and granted Walgreens' motion. Gilmore appeals. ISSUE Did the district court err when it determined that Gilmore did not present a genuine issue of material fact on the question of whether Walgreens exercised reasonable care to prevent the harm? ANALYSIS On appeal from summary judgment, we determine whether the evidence, "viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue 3

of material fact and the moving party is entitled to judgment as a matter of law." Osborne v. Twin Town Bowl, Inc., 749 N.W.2d 367, 371 (Minn. 2008); see also Minn. R. Civ. P. 56.03 (setting forth summary judgment standard). "In a negligence action, the defendant is entitled to summary judgment when the record reflects a complete lack of proof on any of the four essential elements of the claim: (1) the existence of a duty of care; (2) a breach of that duty; (3) an injury; and (4) [that] the breach of the duty [was] the proximate cause of the injury." Schafer v. JLC Food Sys., Inc., 695 N.W.2d 570, 573 (Minn. 2005). The district court granted Walgreens' motion for summary judgment on the ground that the evidence, viewed in the light most favorable to Gilmore, did not establish that Walgreens had a duty to take actions that would have prevented the harm. A possessor of land owes invitees a duty "to exercise reasonable care to construct and to maintain his premises in a reasonably safe condition for their use." Bonniwell v. St. Paul Union Stockyards Co., 271 Minn. 233, 238, 135 N.W.2d 499, 502 (1965). The scope of the duty is defined by the probability or foreseeability of injury to the invitee. Hanson v. Christensen, 275 Minn. 204, 212, 145 N.W.2d 868, 874 (1966). The possessor must "act as a reasonable person in view of the probability of injury to persons entering upon the property." Peterson v. Balach, 294 Minn. 161, 174, 199 N.W.2d 639, 647 (1972). Consistent with this rule, a possessor of land is generally not liable to invitees for physical harm caused to them by a condition on the land if the danger posed by the condition is obvious or known to the invitees. Zuercher v. N. Jobbing Co., 243 Minn. 166, 171, 66 N.W.2d 892, 896 (1954). In Peterson v. W. T. Rawleigh Co., however, the 4

supreme court adopted the rule set forth in Restatement (Second) Torts

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