Simon McCullough v. City of Red Wing, A16-723

Background

Century-old limestone retaining wall in a Red Wing park with cast-concrete balustrade (balusters up to ~100 lbs; rails ~300 lbs); some sections rise above pillars and overlook a 7–10 foot drop.
City performed repairs over the years; vendor inspection in 2007 recommended removing and rebuilding the balustrade due to disintegrating joints and missing pillars/rails; two citizen complaints (2005, 2010) reported loose/near-falling railing.
City inspected and repaired the balustrade in September 2011; employees reported the section that later collapsed as “rock solid.”
On October 9, 2011, McCullough hung a hammock from the balustrade; when a friend entered a nearby hammock, three balusters and the railing they supported fell, severely injuring McCullough.
McCullough sued the City for negligent maintenance; the district court denied the City’s summary-judgment motion asserting recreational-use immunity under Minn. Stat. § 466.03, subd. 6e; the court limited claims to negligent maintenance (statute-of-repose defense granted for design claims).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether recreational-use immunity applies or is defeated by the trespasser exception	McCullough: prior complaints and 2007 vendor report put City on actual notice of a dangerous condition that was concealed	City: recent September 2011 inspection fixed loose components; no actual knowledge and condition was open/obvious, not likely to cause serious harm	Denied summary judgment — genuine factual disputes preclude resolving immunity as a matter of law
Whether City had actual knowledge the balustrade was likely to cause death or serious bodily harm	McCullough: history of complaints and vendor recommendation to rebuild show knowledge of dangerous propensity	City: lack of complaints of injury and hand inspection a month earlier showing solidity negate actual knowledge	Genuine issue of material fact exists regarding actual knowledge; summary judgment improper
Whether the condition was likely to cause serious bodily harm	McCullough: heavy balusters/rails and history of deterioration make collapse inherently likely to cause severe injury	City: balustrade not inherently dangerous absent spontaneous collapse; required unusual simultaneous loading	Court: reasonable jurors could find condition likely to cause serious harm; dispute remains
Whether the dangerous condition was concealed (hidden)	McCullough: mortar/pins susceptible to corrosion; hidden internal deterioration not discoverable by brief visual inspection	City: lack of lateral attachment was visible; a brief inspection would have revealed the hazard	Genuine factual dispute whether the dangerous aspect (corroded pins/mortar and load-bearing capacity) was concealed

Key Cases Cited

Krieger v. City of St. Paul, 762 N.W.2d 274 (Minn. App. 2009) (describing trespasser exception elements to recreational-use immunity)
Unzen v. City of Duluth, 683 N.W.2d 875 (Minn. App. 2004) (affirming denial of immunity where dangerous condition was not open and obvious)
Steinke v. City of Andover, 525 N.W.2d 173 (Minn. 1994) (prior complaints/absence of reports relevant to knowledge inquiry)
Johnson v. State, 478 N.W.2d 769 (Minn. App. 1991) (distinguishing inherently dangerous conditions; knowledge shown by recurring problem requiring repair)