*1 KING, Relator, Robert G. OLMANSON, Respondent, David C.

v. v. MIDWEST, INC., and WOODSMAN COUNTY, LeSUEUR Shoreland Recre- Group, Insurance Auto-Owners Cooperative, ational Shoreland d/b/a Respondents, Country Club, Appellants. No. A03-629. Chiropractic Arts, Kenwood Intervenor. Supreme Court of Minnesota. No. A04-2071. March 2005. Supreme Court Minnesota. March 2005. King, pro appellant.

Robert E. se Swanton, Fitch, Johnson,

Karen Ruth

Larson, Walsh, Held, Minneapolis, Co., respondent.

Auto-Owners Ins.

ORDER files, all upon

Based records and herein,

proceedings

IT IS HEREBY ORDERED that

decision Compensation of the Workers’

Court of Appeals September filed

be, is, opin- the same affirmed without

ion. See Kempton, Hoff (Minn.1982) (summary disposi-

tions precedential have no value because

they do not commit the court to partic- point view,

ular doing no than more case).

establishing the law of the

BY THE COURT: Kathleen A. Blatz

/s/

Chief Justice *2 Phifer, Hunter,

Noel L. Gislason & L.L.P., Ulm, MN, appellant New Cooperative Recreational Shoreland d/b/a Country Shoreland Club. Carlson, Soldo, P. &

Thomas Carlson P.L.L.P., MN, for Heights, appel- Vadnais County. lant LeSueur Hunt, Kay King, Nord Robert J. Lorn- men, Nelson, P.A., Stageberg, Min- Cole & MN, neapolis, respondent. OPINION MEYER, Justice.

In this case we are asked decide 10-year repose pro- whether statute 1(a) vision in Minn.Stat. (2004), applies to claims for duty based on a landowner’s common-law maintain property. court of held that the appeals claims were not time-barred the statute. af-We firm.

Appellant Coop- Shoreland Recreational (Shoreland) operates erative owns and golf golf 18-hole course with holes on both County Road 21. sides LeSueur Some- prior designed time Shoreland golf cart County built culvert under golfers allow golf Road access course on both sides of the road. The opening of the culvert is 5 feet wide and 7 high top feet and the of the culvert is edge located 76 inches from the pavement County on Road 21. The east by 2-by-4 side of the culvert is marked posts on iron located above the cul- board opening. Appellant County vert LeSueur (the county) and do not know Shoreland placed when the barricade was and who placed opening judgment it there. The culvert on immunity based on but reversed County un- the west side of Road is grant summary judgment based on unguarded. marked and Shoreland ac- repose, statute of holding that under knowledges it owns the repose, the statute of duty to warn is located, where the culvert is and the coun- inherent in a landowner’s both to ty acknowledges prescrip- that it holds a inspect. maintain and Olmanson v. Le- property, tive easement over the which County, Sueur 673 N.W.2d 506 (Minn.App. county entitles the to use it for pur- road 2004). granted We review on the issue of poses.1 the statute of repose. We affirm the deci- sion of the court of appeals.

In early evening the afternoon and February respondent David C. *4 Olmanson with snowmobiling went friends I. Peter, in and around St. Minnesota. The This case comes before us on primarily snowmobilers rode on trails and appeal summary from judgment. ap On along county the ditches state and peal summary from judgment, we must roads, including County Road 21. On his determine whether there are genuine home,

way driving Olmanson was his fact, issues of material and whether the snowmobile the ditch on the east side of lower court erred in application its County Road 21. He decided to cross French, law. State Cooper v. 460 County from the ditch on the east side of 2, (Minn.1990); 4 see also Minn. R. Road 21 to the ditch on the west side. As P. Civ. 56.03. The construction of a stat he crossed the road and headed down the law, ute is a of which this court ditch, the edge snowmobile went off the of Ryan reviews de novo. v. ITT Ins. Life golf cart culvert and cul- struck the 126, (Minn.1990). Corp., 450 N.W.2d 128 vert’s side wall. Olmanson was thrown from injured. snowmobile determining When the meaning brought statute,

Olmanson claim of a guided we are by several county and Shoreland in Le- principles statutory construction. Our County county Sueur District Court. primary object The is to interpret and con summary and Shoreland moved for judg- struct laws so as to ascertain and effectu ment, arguing that the statute of ate the intention of legislature. improvements for to real property, Minn. Mankato Citizens Tel. Co. v. Comm’r of Taxation, suit, 107, Stat. 111, barred Olmanson’s 275 Minn. 145 N.W.2d (1966); and that county neither the nor Shoreland 645.16 had a to warn entrants of the exis- When the words a statute are county tence of the culvert. The also clear and free from all ambiguity, this statutory immunity. claimed and official only plain court looks language. its The district court summary judg- denied v. Owens Water Gremlin 605 N.W.2d (Minn.2000). ment immunity based on and failure to If am statute is warn, but granted summary judgment biguous, the construction that con avoids based on the of repose. problems used, statute The court stitutional should be even appeals summary affirmed the denial of if such a construction is less natural. holder, parties 1. The have not made an issue of the the culvert as an we easement treat county's legal regard status as owner with county opin- aas owner in this purposes summary judg- the culvert for ion. Therefore, ment. because it retains control of (1) Bronson, golf cart completed Forslund culvert was State on Behalf of (Minn.1981). than more before Olmanson’s ac- (2) cident; improvement the culvert is an (2004), § 541.051 Statutes is Minnesota (3) to real property; Olmanson’s claim is injuries arising repose for out a statute of (4) culvert; against the owners improvements.2 per- of real Olmanson’s claim arises out of the defec- statutory language is as follows: tinent tive and unsafe condition of the culvert. (a) involved, Except where fraud is facts, contend, appellants Under these sub- contract, by any person no action 1(a) explicitly division bars Olmanson’s tort, damages or otherwise to recover claim. any injury property, per- real or injury Olmanson asserts that his sonal, bodily injury arose wrongful or for death, county negli- from the and Shoreland’s arising out of the defective and gence inspecting the culvert and then- unsafe condition of an resulting failure to notice that it was dan- any action for contri- property, nor gerous. argues Olmanson that had Shore- indemnity damages bution or sus- county properly inspected land and the injury, tained on account of the shall be culvert, they would have known that the against any person performing brought *5 commonly by roadside ditch was used design, planning, furnishing or the su- snowmobiles, materials, that the culvert created pervision, or observation of a dangerous condition it un- of im- because was construction or construction guarded and unmarked. property argues Olmanson provement to real or 1(c), “maintenance, that subdivision op- property the owner of the real more inspection” exception, eration or years discovery applies after of to than two * * * nor, preserve his claim. Specifically, Olmanson injury event shall such claims that exception preserves this a of action accrue more than ten cause duty common-law of reasonable care owed years completion after substantial by entrants, landowners to as evidenced construction.

the use of negligence terminology in the subdivision. (c) Nothing apply in this section shall damages resulting from actions agree in We with Olmanson’s maintenance, operation in the terpretation § of Minn.Stat. 541.051. It is property or of the real im- well established in jurisprudence our that provement against the owner or other a duty landowner has a use reasonable person in possession. safety care for the all upon of entrants § subd. 1. Louis, premises. Louis v. 636 N.W.2d 314, county (Minn.2001); argue Shoreland and the that the 318 Congdon, Pietila v. 1(a) language 328, (Minn.1985); of subdivision is clear and 362 N.W.2d 332-33 Pe Balach, unambiguous operates expressly terson v. 294 Minn. 199 639, They bar Olmanson’s claim. reason that N.W.2d 647 The landowner’s 2. explained, brought.” As this court has statute Goodyear "[a] of tion cannot be Hodder repose period bring- Co., starts the limitation 826, Tire & Rubber 426 N.W.2d 830 ing [completion an date action from the of of (Minn.1988). specifies Section 541.051 a lim- improvement], unlike a statute of limita- period barring years itation suit more than 10 injury. date tions which starts from the A completion after substantial of a real typical specify pre- statute of will a improvement. sumptive number of ac- which an

881 ond) 343A, (1), § duty reasonable care is modified accord Torts subsection which land, expected use of the and the “A ing possessor states: of land is not liable to care, duty has a of reasonable entrant also his for physical invitees harm caused to according to the circum which varies by any activity them or condition on the the land. stances under which he enters land danger whose is known or obvious to Minn, Peterson, 174, 294 at 199 N.W.2d at them, possessor unless the should antici- However, duty the landowner’s 647.3 pate despite the harm knowledge such or duty an ongoing reasonable care includes (Second) obviousness.” Restatement and maintain to ensure 343A(1) (1965); Dill, § Torts Baber v. on the landowner’s land are not entrants (Minn.1995) 493, (citing 495-96 Pe- harm. exposed to unreasonable risks of Co., terson v. Rawleigh W.T. 274 Minn. Pietila, 332-33; 362 N.W.2d at Conover v. 495, 496-97, (1966) 555, 144 N.W.2d 557-58 Co., Northern Power States (Sec- (expressly approving Restatement (Minn.1981) (owner has to ond) 343A)). Generally, of Torts wheth- warn). inspect, If dangerous conditions presents er a a condition known or obvious through are discoverable reasonable ef See, danger is a of fact. e.g., forts, repair the landowner must either the Louis, (holding 636 N.W.2d at 321-22 that provide conditions invited entrants with summary judgment was not appropriate adequate warnings. See Bonniwell v. St. danger posed by because whether the a Stockyards Paul Union 271 Minn. swimming pool was known or obvious was (1965); 238, 135 N.W.2d Re question). a fact possessor Whether the (Second) statement of Torts cmt. d anticipate danger could is also fact (1965) (“[An expect is entitled to entrant] Evanson, question. See Adee v. possessor will take reasonable (Minn.1979) N.W.2d 177 *6 (granting new care to ascertain the actual condition of the trial liability on the issue of where the and, it, premises having discovered either jury original language instructions omitted reasonably by repair to make it safe or to imposing liability on the landowner if harm give warning of the actual condition and anticipated despite could be obviousness of therein.”). the risk involved If a reason law, then, danger). common Under sever- inspection danger able does not reveal a questions al fact preclude would sum- condition, ous such that the landowner has mary in judgment the instant case. knowledge neither actual nor constructive it, theory under the Shoreland, county The and as owners of not for physical landowner is liable land, ongoing duty had an under com- injury by caused to invited entrants the mon law to use reasonable care dangerous condition. See Hanson v. land, safety including of entrants on their Christensen, 275 Minn. 145 duty premises their for dan- (1966). 868, N.W.2d 873-74 gerous repair conditions and to them or in warn entrants about them. The statute of duty

The common-law spect, not repair, and warn is not absolute. does bar claims that this (See- breached, adopted This court has Restatement has been because under parties disagree light 3. The as to the entrant status must view the facts in the most favorable Olmanson, county party against of Olmanson. The and Shoreland as- whom the trespasser, summary judgment granted. sert that he was a while Olmanson motion for Anderson, 398, legally claims that since are snowmobiles en- Lubbers 401 ditches, (Minn.1995). purposes opinion, titled to use roadside he was a licen- For of this then, summary judgment, see. In the context of we we consider Olmanson a licensee. against any person language of Minn.Stat. involved with the de- plain 1(e), pos- persons sign, planning, supervision, owners or other or observation ordinary construction, lia- retain their landowner performing session or the con- maintenance, bility negligent operation, property improvement struction of a real (hereafter property improve- of real professionals) construction that ments. We hold the district court years. It suppli- made no reference to granting summary judgment erred materials, explicitly ers of and it allowed county based favor Shoreland exception for owners of real claim on its conclusion Olmanson’s improvements: “This shall not be [section] by repose. was barred the statute of applied any person favor of in actual owner, tenant, possession and control as or county argue The and Shoreland * * * otherwise at the time the defective they inspected that because and main and unsafe conditions of such adequate culvert in a tained the manner proximate inju- constitutes the cause of the tunnel, golf they for its use as a cart * * ry *.” Id. negligent inspec cannot be held liable for We first examined the statute in Kittson by tion or an unin maintenance caused Wells, Associates, County v. Denbrook & agree tended use. We with this basic Inc., 308 Minn. not premise but do conclude as a matter of time, At that this court concluded that its law that the use the land for snowmo apparently legislative enactment was re- bile trail was an Rath “unintended use.” privity action to the erosion of the of con- er, this is a fact to be left for doctrine, tract greatly which threatened to determination the fact finder. liability expand profes- of construction II. sionals. Id. at 241 N.W.2d at 801-02. liability The statute county limited the of these and Shoreland assert that if professionals by construction establishing protect 541.051 does not them, beyond they outer time limit which they effectively being are denied could not equal design be held liable for protection of the law because the construction defects. Id. at benefit given persons of the statute is N.W.2d at 802. The who thus design improvements construct *7 estate, granted protection broad to They real but construction denied to owners. professionals not available to argue that we that an owners of concluded earlier property improvements. repose version of the statute of was uncon- reason; i.e., very stitutional for this that 1977, In we took up constitutionality the statute time-barred certain claims excluding of owners suppli- and materials against professionals construction while al- protected by ers from the class the statute. lowing go those same claims to forward Indem. Co. v. Thompson-Yaeger, Pacific Inc., against analysis our begin owners. We (Minn.1977). 548, 260 N.W.2d 555 At this argument constitutional with a brief decided, Indemnity the time was Pacific history of the statute of and this repose protected the statute of construc- respect court’s decisions with to the stat- professionals against tion but allowed suit ute. Indemnity, owners. In a Pacific Legislature The Minnesota enacted negligently-installed sec- fire caused a fur- 21, 1965, tion May destroyed part 541.051 1965. Act of nace a shopping mall. 564, 1, Co., ch. 1965 Minn. Laws 803. As Indem. 260 N.W.2d at 551-52. Pacific enacted, trial, originally the statute barred suits At jury found the furnace instal-

883 7, 1980, 518, 2-4, §§ ch. April the store tenant 1980 Minn. percent negligent, ler 80 595-96; negligent, City Crys- and the furnace ser- Laws see Colder v. percent 10 (Minn.1982). negligent. tal, 838, Id. vicing company percent 10 842-43 session, trial court found that at 552. The legislature In the same added property improve- furnace was not a real what is now section subdivision ment, 541.051 and that therefore section 1(c), excepting negligent claims mainte- Id. at The servic- inapplicable. was 553. nance, operation, inspection against ing company appealed. Id. persons pos- owner and other protection session from the of the statute.

This court first held that the furnace 7, 1980, 2-4, §§ April Act of ch. property improvement pur was a real Minn. 595-96. A Laws later amendment poses 541.051. Id. at 554. of section period pres- shortened the limitation to its Next, legislature this court noted that the classes, years. of 10 ent duration may separate “[ljegisla- create but apply uniformly must to tive classifications situated, persons similarly

all who are brings This us to the at separate the distinctions which those who hand. Does the 1980 amendment and our are included within a classification from reading of it in I Section create the same natural those who are not must be profes classification between construction reasonable, arbitrary.” not fanciful and sionals and owners that was found to be Talmo, (citing at 555 Id. Schwartz Indemnity? unconstitutional in Pacific Minn. N.W.2d Indemnity We think not. In we Pacific (1973)). Otherwise, the classification fails held that it irrational give statute of equal protection grounds. Noting on that repose protection against for claims con majority upheld a of states had consti professionals denying struction while tutionality equal pro of similar statutes on protection to landowners. did not con We grounds,4 tection this court nonetheless de clude that all claims construction position termined that the reasoned better professionals and landowners must be “is embodied the decisions which hold identically treated in order to withstand such statutes to be unconstitutional be equal protection challenge. an As dis they immunity grant cause from suit to above, per cussed landowners and other defendants, without certain class there possession historically of land have sons being a reasonable basis for that classifica liable for claims that arise from their been Indem. at tion.” Pacific land; i.e., obligation in the possession 555. premises. maintain inspect professionals

In the Minnesota re- Construction who have relin sponded Indemnity by quished amend- control of the land do not have Pacific premises. and maintain the *8 ing property section 541.051 add owners suppliers pro- possessors, to the class and not construction and materials Owners by repose professionals, obligated statute of for claims are to and tected the design premises of and construction defects. Act of maintain the once construction is decided, Co., Indemnity grounds. 4. At the time Sedar v. Knowlton Const. Pacific upheld 10 states had construction statutes of Ohio St.3d 551 N.E.2d repose, while five states had struck them (other than The Sedar court listed five states Indem., down. 260 N.W.2d at 555. A Minnesota) Pacific down that have struck similar by Supreme decision the of Ohio Court equal protection grounds. at statutes on Id. upheld that have lists 21 states construction 945 n. 6. equal protection statutes of on completed. permit negligent result, To claims for 1980 Minn. Laws 595-96. As a the proceed and maintenance to infirmity constitutional that we identified possession barring in while against those decision, By today’s was eliminated. against profes- such claims construction court again gives backtracks and life to the possession not in is a natural sionals and classification we struck down in Pacific legislature distinction. The reasonable Indemnity. distinction in plain made clear this part The of the statute struck we down language. unambiguous We conclude that in Indemnity read: Pacific possessors owners and are not denied This limitation applied shall not be in if equal protection of the law we hold them any person favor of in possession actual in- liable for their common-law duties to owner, tenant, and control as or other- spect their real im- property and maintain wise, improvement at the time the

provements. defective and unsafe conditions of such Affirmed. improvement proximate constitutes the injury cause of the pro- for which it is ANDERSON, BARRY, J„ G. took no posed bring an action. part in or the consideration decision of this case. Indem. 260 N.W.2d at 553 Pacific (quoting 541.051, § subd.

PAGE, (dissenting). Justice (1976)). I respectfully disagree with the court’s pertinent part of the statute that we holding plain language that the of Minn. today construe reads: 1(c) (2004), pre- Stat. serves a landowner’s or land possessor’s (a) Except involved, where fraud is no liability improvements common law by any contract, tort, action person or 10-year real after the time limit damages otherwise recover for any 1(a) passed. set out subdivision has injury to property, real or or personal, bodily injury death, wrongful or aris- Indemnity In Co. v. Thompson- Pacific ing out con- Inc., (Minn.1977), Yaeger, 260 N.W.2d 548 defective unsafe improvement dition prop- to real predecessor we held the to the current * * * erty, brought against shall be any version of Minn.Stat. 541.051unconstitu- person performing furnishing or the de- tional because it “violate[d] constitutional sign, materials, planning, supervision, or provisions immunity which forbid from suit observation of construction or construc- to a limited class of defendants without tion of being there a reasonable basis for such or the owner the real property classification.” 260 at 550. The years more than two discovery after classification involved those or, injury in the case of an action for “perform[] who the design, furnish[] indemnity, contribution or planning, accrual of supervision, or observation of action, nor, cause of construction or construction event shall of such im- provements such cause of action property” to real accrue more than did not ten include the owner of property. completion the real substantial In response Id. at 553. construction. Date of Indem- substantial Pacific nity, completion amended the statute shall be determined *9 to include the owner of property the real date when sufficiently construction is upon improvement which the completed was made. so that the owner or the own- Apr. 2-4, §§ See Act of ch. representative er’s occupy can or use in- pur- (8)legislative administrative for the intended improvement the terpretations of the statute. pose. (2004). § Minn.Stat. 645.16 n

n t n legis- ascertaining In the intention the (c) apply in shall Nothing this section may guided the courts be the lature resulting from damages to actions following presumptions: maintenance, operation in negligence the (3) legislature the does not intend to im- property of the real inspection or of the violate the Constitution United other the owner or provement against state; States or of this person possession. (4) when a court of last resort has law, language of a the construed the (c) (2004) 541.051, 1(a), § subd. Minn.Stat. legislature subsequent laws on the added). (emphasis subject matter intends the same same we construe statutes: When placed upon such lan- construction to be guage. object interpretation of all have also Minn.Stat. 645.17 We laws is to ascertain and construction of construing the statute of said when legisla- the the intention of effectuate repose, give we “strive to effect to the construed, if Every shall be ture. law plain meaning of the words of the statute all its possible, give provi- effect to legal to technical construc- without resort sions. tions of its terms.” Indem. Pacific the words of a law their When 260 N.W.2d at 554. to an situation are application existing meaning, words Applying plain their the ambiguity, clear and free from all § 541.051 claims of Minn.Stat. bar disregarded not be letter of the law shall any person performing the construction spirit. pretext pursuing under the or the improvement an to real improved owner of the of a law are not When the words injuries arising from the of the explicit, the intention “defective to real improvement condition of an by considering, may be ascertained unsafe more than 10 property” that accrue among other matters: substantially is improvement (1) necessity for the the occasion and completed. law; added). (2004) 1(a) Because the (emphasis (2) begins which it to run at the substantial the circumstances under statute improvement, the condi- enacted; completion of just any is not triggering tion the statute (3) remedied; the mischief to be only those property, of the but condition (4) attained; object to be “defective and conditions that are both at the time con- unsafe” and existence (5) law, including if any, former of the is substan- struction or similar upon other laws the same tially completed. subjects; 1(c) 541.051 cre- -of section Subdivision (6) particular of a consequences 10-year time limit. exception to the ates interpretation; for dam- exception applies “to actions That (7) in the legislative from contemporaneous ages resulting maintenance, operation history; and *10 by property improvement” prop- real

erty’s way, Put another the excep- owner. In re Petition for DISCIPLINARY AC- “maintenance, applies opera- tion to the VAUGHT, TION AGAINST Samuel M. tion, the real Attorney, Registration a Minnesota completion after improvement” and not to No. 131519. and unsafe the “defective condition” of the No. improvement completed. Reading as sub- A04-1438. 1(c) conjunction with

division subdivision Supreme Court of Minnesota. 1(a), it is clear that the intend- only ed to hold an owner liable for those March 2005. changes property improvement to the real negligent from the owner’s arise ac- improve- tions the construction of the completed ment is and not for those condi- already in

tions existence at the time the

improvement substantially completed.

Simply put, respect with to the defective existing unsafe conditions at the sub- construction, completion

stantial owners

enjoy statutory protection the same as professionals.

construction Applying our construction, statutory

rules of other 541.051, 1(c),

reading of Minn.Stat. subd. 1(a) meaningless,

would render subdivision holding

violate our Indemnity, Pacific statutory and render the scheme unconsti-

tutional.

Thus, extent that Olmanson’s injuries

claim is that his arose out of the

defective and unsafe condition of the cul- constructed,

vert as his claim is barred 1(a), because us record before establishes that the alleged

culvert’s defective and unsafe con-

dition was inherent in the culvert’s con-

struction and existed at the time of the completion

culvert’s substantial and be-

cause the to the proper-

ty, culvert, was substantially completed

more than 10 before Olmanson’s would, therefore, I

snowmobile accident. appeals’

reverse the court of decision and

reinstate trial grant court’s of sum-

mary judgment in favor appellants.