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STATE OF MINNESOTA IN SUPREME COURT A07-0313 Court of Appeals David Foss, (as parent and natural guardian of David Gerald Warren Foss, minor child, and David Foss, individually), Appellant, vs. Jeremy Kincade and Stephanie Kincade, Defendants and Third-Party Plaintiffs, Respondents/Appellants, vs. Peggy Foss, Third-Party Defendant/Respondent. ________________________ Filed: May 14, 2009 Office of Appellate Courts Anderson, Paul H., J. Dissenting, Page, J.

Thomas G. Johnson, Todd M. Kleinhuizen, Johnson, Moody, Schmidt & Kleinhuizen, P.A., Willmar, Minnesota, for appellant. John M. Bjorkman, Mark A. Solheim, Larson King, LLP, St. Paul, Minnesota, for thirdparty plaintiffs, respondents/appellants. Peggy Foss, Lonsdale, Minnesota, pro se, third-party defendant/respondent. ________________________

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SYLLABUS Homeowner did not have a duty to secure an empty bookcase to the wall to prevent it from tipping over because it was not reasonably foreseeable that a three-yearold guest would injure himself by attempting to climb the bookcase. A discovery sanction is not appropriate when the disposal of evidence did not prejudice the opposing party. Affirmed. OPINION ANDERSON, PAUL H., Justice. On October 15, 2003, three-year-old David Foss, Jr., was seriously injured by a falling bookcase while he was a guest in the home of respondents Stephanie and Jeremy Kincade. David Foss, Sr., on behalf of himself and his son, brought this action against the Kincades alleging that the Kincades' negligent failure to secure the bookcase to a wall was the cause of David's injuries. The Rice County District Court granted summary judgment in favor of the Kincades, and the Minnesota Court of Appeals affirmed. We conclude that the Kincades did not owe a legal duty to affix a typical household object because the harm that occurred was not foreseeable. Therefore, we affirm. On the afternoon of October 15, 2003, Peggy Foss, David's mother and Stephanie Kincade's longtime friend, had taken David and his nine-year-old sister on a visit to the Kincade home. The Kincade family had moved into the Foss's neighborhood a few weeks earlier and, as a result of the move, there were boxes around the house and some of the rooms were relatively empty of furniture. On that afternoon, the two women were 2

visiting as their children played. While talking in the dining room, Peggy Foss and Stephanie Kincade heard a loud bang. They proceeded quickly to discover the source of the noise. The two women went to where they believed the sound had originated--a small spare bedroom located a few steps from the dining room. Upon entering the room, the women saw that a bookshelf, approximately six feet tall by three feet wide, had fallen over onto the carpeted floor. Peggy Foss and Stephanie Kincade promptly lifted the bookcase and discovered three-year-old David underneath it. According to his mother, David was bleeding and turning blue. Stephanie Kincade quickly called 911, and an ambulance arrived to take David to the hospital. Because of the accident, David suffered serious injuries to his head, was hospitalized, and underwent several invasive surgical procedures. David's injuries caused permanent disfigurement to the left side of his face and possible future eye complications. David's father, David Foss, Sr. (Foss), commenced this action against Jeremy and Stephanie Kincade in September 2005, claiming the Kincades' negligence caused David's injuries. Specifically, Foss claims that the Kincades were negligent in failing to secure the empty bookcase to the wall to prevent it from tipping over. Peggy Foss gave deposition testimony that she had seen David climb shelves and furniture in her own home before the accident and had warned David not to do so. Peggy Foss said she was unaware of the bookcase in the Kincades' spare bedroom, but admitted she had probably been in the room at some point. While Peggy Foss acknowledges that

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she never specifically told the Kincades that David climbed furniture, she claims they were aware that David was a very active child. The Kincades gave deposition testimony acknowledging that a bookcase could tip over, but said they did not consider the bookcase in the spare bedroom to be a hazard to their own children. After the accident, the Kincades remodeled the spare bedroom, and moved the bookcase to the garage. Although the Kincades were contacted by an

insurance representative about possible claims on David's behalf, the Kincades threw the bookcase away in the spring of 2004. The Kincades moved for summary judgment. The district court granted the

motion, concluding that the Kincades owed no duty to David because the accident was not foreseeable. The court of appeals affirmed the district court, holding that because of the presence of Peggy Foss, the harm that occurred was not foreseeable, and therefore, the Kincades did not owe David a duty as matter of law. Foss ex rel. Foss v. Kincade, 746 N.W.2d 912, 916 (Minn. App. 2008). The court also concluded that Foss was not prejudiced by the Kincades' disposal of the bookcase. Id. at 918. Foss appealed to our court, arguing that a landowner owes a duty of care to children invited on the premises and that the presence of the child's parent does not eliminate the duty owed by the landowner. Foss also sought review on the court of appeals' decision on the disposal of the bookcase. I. Summary judgment is appropriate when a district court concludes that "there is no genuine issue as to any material fact and that either party is entitled to a judgment as a 4

matter of law." Minn. R. Civ. P. 56.03. We review the district court's grant of summary judgment for genuine issues of material fact and to determine whether the court erred in its application of law. Louis v. Louis, 636 N.W.2d 314, 318 (Minn. 2001). We view the evidence in the light most favorable to the party against whom summary judgment was granted. Id. The existence of a legal duty in a negligence case, however, is a question of law that is reviewed de novo. Id. Foss argues that the Kincades' negligence was the cause of the injuries David sustained at the Kincades' residence. In order to establish a prima facie case of

negligence, Foss must show the following elements: (1) that the Kincades owed a duty to David; (2) that the Kincades breached that duty; (3) that the breach of duty was the proximate cause of David's injury; and (4) that David did in fact suffer an injury. Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 155 (Minn. 1982). The Kincades are entitled to summary judgment if the record reflects a complete lack of proof on any of the four elements of a prima facie case. Louis, 636 N.W.2d at 318. Analyzing an action brought against a landowner alleging negligence begins "with an inquiry into whether the landowner owed the entrant a duty." Id. (citing Baber v. Dill, 531 N.W.2d 493, 495 (Minn. 1995)). Historically in landowner cases, the duty owed to an entrant varied depending on the entrant's status on the land. Peterson ex rel. Peterson v. Balach, 294 Minn. 161, 163-64, 199 N.W.2d 639, 641-42 (1972). A landowner owed a greater duty to a licensee than a trespasser and an even greater duty to a business invitee than to a licensee. Id. at 163-175, 199 N.W.2d at 641-646. But in Peterson v. Balach we

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"abolish[ed] the traditional distinctions governing licensees and invitees" in determining a landowner's duty. Id. at 164, 199 N.W.2d at 642. Peterson arose from the death of a child who, while an overnight guest in the defendant's cabin, was killed by carbon monoxide poisoning from a faulty propane refrigerator. Id. at 162-163, 199 N.W.2d at 641. As part of our analysis in Peterson, we held that a landowner owed a duty "to use reasonable care for the safety of all such persons invited upon the premises, regardless of the status of the individuals." Id. at 174, 199 N.W.2d at 647. Under the rule announced in Peterson, "the extent of the duty of the owner to inspect, repair, or warn those who come upon the land as licensees or invitees will be decided by the test of reasonable care." Id. According to Peterson, among the factors that might be considered in determining liability are "the circumstances under which the entrant enters the land (licensee or invitee); foreseeability or possibility of harm; duty to inspect, repair, or warn; reasonableness of inspection or repair; and opportunity and ease of repair or correction." Id. at 174, 199 N.W.2d at 648 n.7. Foss argues for application of the child trespasser standard as the minimum standard of care of this case. Before Peterson, landowner negligence cases involving injuries to children were decided using the standard on child trespassers, regardless of

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"whether the child is an invitee, licensee, or trespasser." 1 Meagher ex rel. Meagher v. Hirt, 232 Minn. 336, 339, 45 N.W.2d 563, 565 (1951) (citing Restatement Torts (Tent. Draft No. 4)

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