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STATE OF MINNESOTA IN COURT OF APPEALS A08-0750 Joan M. Krieger, Respondent, vs. City of St. Paul, Appellant, Dew Corporation, et al., Defendants, and City of St. Paul, Third Party Plaintiff, vs. Dew Corporation, Third Party Defendant. Filed March 10, 2009 Reversed and remanded Schellhas, Judge Ramsey County District Court File No. 62-C0-07-002337 Mark J. Fellman, Fellman Law Office, 400 Robert Street North, Suite 1740, St. Paul, MN 55101; and Wilbur W. Fluegel (co-counsel), Fluegel Law Office, 150 South Fifth Street, Suite 3475, Minneapolis, MN 55402 (for respondent) John J. Choi, St. Paul City Attorney, Lawrence J. Hayes, Jr., Assistant City Attorney, 750 City Hall and Courthouse, 15 West Kellogg Boulevard, St. Paul, MN 55102 (for appellant)

Considered and decided by Lansing, Presiding Judge; Kalitowski, Judge; and Schellhas, Judge. SYLLABUS For purposes of the trespasser-liability exception to recreational-use immunity, an inherently dangerous condition is not established where death or serious bodily harm might result only in particularly vulnerable users of recreational property. OPINION SCHELLHAS, Judge In this tort case, appellant City of St. Paul challenges the district court's denial of its motion for summary judgment, arguing that it was protected by recreational-use immunity and that certain elements of the trespasser-liability exception to recreationaluse immunity are not met in this case. We agree, and therefore reverse and remand for entry of summary judgment in favor of appellant. FACTS Respondent Joan M. Krieger alleged that she tripped on a gouge in a temporary walkway located at the North Dale Recreation Center, which was owned by appellant City of St. Paul (the city). The incident happened as Krieger left the recreation center at approximately 9:00 p.m., on March 3, 2004. In her answers to interrogatories, Krieger explained that there were no warning signs or markers indicating areas unsafe for walking, that the area was not illuminated by external lighting, and that she was unable to see that there was a gouge in the temporary surface. No pictures or descriptions of the

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gouge are contained in the record. As the case progressed, claims against other parties were added and then dismissed. Only Krieger's claim against the city remains. The city asserted recreational-use immunity, official immunity, and statutory immunity as affirmative defenses, and twice moved the district court for summary judgment. The court denied both motions. This appeal follows. ISSUE Did the district court err in concluding that genuine issues of material fact exist about whether the sidewalk gouge was likely to cause death or serious bodily harm and whether the city had notice of a defect likely to cause death or serious bodily harm? ANALYSIS On appeal from summary judgment, we ask (1) whether there are any genuine issues of material fact and (2) whether the lower court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). A genuine issue of material fact exists when reasonable persons can draw different conclusions from the evidence. DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997). "We review immunity issues de novo, without deference to the district court." Unzen v. City of Duluth, 683 N.W.2d 875, 878 (Minn. App. 2004), review denied (Minn. Oct. 27, 2004). The city claims protection by recreational-use immunity under Minn. Stat.

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