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Bredvick v. City of Morris2/5/2002
In this wrongful-death action arising out of a swimming-pond accident, the district court awarded summary judgment to respondent based on recreational-use immunity. Appellant claims the district court erred by granting summary judgment on the basis of recreational-use immunity and claims that respondent's duty should be measured by the child-trespasser standard rather than the adult-trespasser standard. See Restatement (Second) of Torts §§ 335, 339 (1965) (setting out elements for adult-trespasser and child-trespasser standards, respectively). Although our decision is based on grounds other than those relied on by the district court, we agree that respondent is protected by recreational-use immunity, and we affirm.
FACTS
In 1967, the City of Morris (respondent) acquired the Pomme de Terre Park from the State of Minnesota. In 1981, respondent built a swimming pond in the park. Respondent used well water, instead of river water, and sand from a nearby gravel pit, to create the pond.
The parties agree that the well water contained a large quantity of calcium carbonate, causing the water in the pond to be turbid; even the pond's shallow end was murky. Respondent tried to solve the turbidity problem by replacing the sand in the pond. It does not appear that the problem has ever been solved.
On July 17, 1997, the day this tragedy occurred, Sherie Bredvik (appellant) dropped off her two sons, Tyler (age 13) and her younger son Tore, at the pond. Her children had used the pond previously. Appellant admitted that she knew the pond was murky because her children had told her of the pond's condition.
Three lifeguards were on duty the day Tyler Bredvik drowned. A fourth lifeguard was sick and did not work as scheduled. Because one of the lifeguards operated the concession stand, only two lifeguards watched the beach and pond.
After Tyler Bredvik was missed, a search was conducted and Tyler's body was found in three to four feet of water. According to appellant, the water was so murky that she could not see her hand under the water. Appellant, as Tyler's next of kin, brought this action against respondent for wrongful death and negligence.
Respondent moved for summary judgment, asserting that recreational-use immunity shielded the city from any liability for Tyler's death. Appellant argued that the child-trespasser standard for determining respondent's duty should be applied and that respondent breached this standard, thus precluding summary judgment.
The district court found the adult-trespasser standard (Restatement (Second) of Torts § 335) was the proper standard to use in determining the duty owed by respondent to Tyler Bredvik. The district court applied the adult-trespasser standard, determined that there were no issues of material fact, and granted summary judgment in favor of respondent. This appeal followed.
DECISION
I.
"The application of immunity is a question of law, which [this] court reviews de novo." Gleason v. Metro. Council Transit Operations, 582 N.W.2d 216, 219 (Minn. 1998) (citation omitted). Generally, municipalities are liable for their torts. See Minn. Stat. § 466.02 (1996). But municipalities are immune from
ny claim based upon the * * * operation * * * of any property owned * * * by the municipality that is intended or permitted to be used as a park, as an open area for recreational purposes, or for the provision of recreational services * * * if the claim arises from a loss incurred by a user of park and recreation property or services. Nothing in this subdivision limits the liability of a municipality for conduct that would ent
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