United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-1835
                                    ___________

Donald A. Barnum; Evonne M.            *
Barnum,                                *
                                       *
           Plaintiffs-Appellants,      *
                                       * Appeal from the United States
     v.                                * District Court for the
                                       * District of Minnesota.
Wal-Mart Stores, Inc.,                 *
                                       *
           Defendant-Appellee.         *
                                  ___________

                              Submitted: October 20, 1999

                                   Filed: November 15, 1999
                                    ___________

Before WOLLMAN, Chief Judge, LAY, and LOKEN, Circuit Judges.
                             ___________

LAY, Circuit Judge.

      Donald Barnum (Barnum) and his wife, Evonne M. Barnum, sued Wal-Mart
Stores, Inc. (Wal-Mart) for negligence after Barnum slipped and fell on a patch of ice
in Wal-Mart’s parking lot. Barnum had legally parked in a handicapped parking space,
and he fell while exiting his car. During trial, Barnum proposed a jury instruction
regarding Minnesota Statute § 169.346, a traffic regulation statute containing stopping
and parking provisions. Subdivision (2)(a) of § 169.346 describes the requirements for
the creation and reservation of parking spaces for disabled individuals.1 Subdivision
(2)(b) states the following:

          The owner or manager of the property on which the designated parking
          space is located shall ensure that the space is kept free of obstruction. If
          the owner or manager allows the space to be blocked by snow,
          merchandise, or similar obstructions for 24 hours after receiving a
          warning from a peace officer, the owner or manager is guilty of a
          misdemeanor and subject to a fine of up to $500.

MINN. STAT. § 169.346(2)(b) (1998). Barnum’s proffered instruction contained the
first two sentences of Subdivision (2)(a)2 and only the first sentence in Subdivision
(2)(b). Barnum argues that he reads the first sentence as setting the applicable standard
of care, while the second sentence simply provides the possible criminal repercussions.

       The district court3 rejected the proposed instruction as being inapplicable to the
facts of the case. The jury found for Wal-Mart in a special verdict, and the court
thereafter ordered judgment in accordance with the verdict. Barnum appeals the

          1
              Subdivision (2)(a) states in relevant part:

          Parking spaces reserved for physically disabled persons must be
          designated and identified by the posting of signs incorporating the
          international symbol of access in white on blue and indicating that
          violators are subject to a fine of up to $200. These parking spaces are
          reserved for disabled persons with vehicles displaying the required
          certificate, license plates, temporary permit valid for 30 days, or insignia.

MINN. STAT. § 169.346(2)(a) (1998).
          2
              Footnote one of this opinion provides the first two sentences of Subdivision
(2)(a).
          3
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota, presiding.
                                                 -2-
court’s refusal to charge the jury under the statutory language of § 169.346, subds. 2(a)
and (b).

       “In reviewing the district court’s instructions, we consider whether the charges,
taken as a whole and viewed in light of the evidence and the applicable law, fairly and
adequately submitted the issues in the case to the jury.” Gray v. Bicknell, 

, 1485 (8th Cir. 1996). Only if the missing instruction culminated in prejudicial
error will we reverse the lower court. 

. Barnum’s proposed
instruction disregards the remainder of Subdivision (2)(b), which provides for criminal
prosecution only when a peace officer has requested that the landowner remove the
obstruction and the landowner fails to do so within twenty-four hours. Without the
requisite warning and failure to act, the statute is not breached. Likewise, it is implicit
in Minnesota Jury Instruction Guide 302 that a prima facie case of negligence exists
only upon breach of the traffic statute. MINNESOTA JURY INSTRUCTION GUIDE 302 (3d
ed. Supp. 1997) (Minnesota District Judges Ass’n Comm. on Jury Instruction Guides).
The law does not treat the landowner as an insurer without consideration of fault.
Since the statute was not violated in this instance, the selected language in § 169.346
could not fairly and adequately present the issue of negligence to the jury. Moreover,
the court's instructions sufficiently presented the elements of negligence and the duties
of a landowner to permissive entrants.4

      4
       The court defined the terms “negligence” and “reasonable care” for the jury and
explained that negligence does not automatically follow from the fact that an injury has
occurred. (Trial Tr. 343.) The court further explained that Wal-Mart, as a landowner,
has a duty of reasonable care in the inspection and repair of its premises, as well as a
duty to protect entrants from an unreasonable risk of harm due to the premises’
condition. 

listed the following factors in determining whether Wal-Mart
exercised reasonable care:

      (1) the purpose for which Mr. Barnum entered the premises; (2) the
      circumstances under which he entered the premises; (3) the use to which
      the premises are put; (4) the foreseeability or possibility of harm; (5) the
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       Even if the selected language was intended to create the standard of care without
regard to the rest of the statute, we agree with the district court that the characterization
of ice as an “obstruction” for purposes of the statute is tenuous, at best. Subdivision
(2)(b) specifically bars blockage of the disabled parking space by “snow, merchandise,
or similar obstructions . . . .” While it is true that ice and snow are “similar” in the
sense of composition, we find it difficult to say that the patch of ice in Wal-Mart’s
parking lot blocked Barnum’s access to the parking space in the same manner as would
a mound of snow. We think it clear from the plain meaning of the statute that, in
passing § 169.346, the legislature sought to ensure that disabled parking spaces would
be kept free and clear from obstruction so that disabled persons would have access to
them. Barnum may have needed to use extra care in using the space, but he still had
access to the space.

       We agree with the district court that § 169.346 is inapplicable to the facts of this
case, especially given Wal-Mart's lack of notice. It is undisputed that Wal-Mart was
without actual notice of the ice patch, and we are unpersuaded by Barnum’s theory of
constructive notice. The trial court heard testimony that the days preceding Barnum’s
fall were warm, and there was no snow on the ground. (Trial Tr. at 103.) Furthermore,
Lance Hoffman, Wal-Mart manager at the time of Barnum’s fall, stated in his
deposition that after Barnum’s accident, the parking lot was inspected and found to be
“99 percent free of ice,” (Hoffman Depo. at 40), with only one other patch in the
300,000 square foot parking lot, (Id.; Trial Tr. at 288).




       reasonableness of the inspection or repair; and (6) the opportunity or ease
       of repair.

(Trial Tr. 343-44.)
                                             -4-
      Because we find that Barnum’s proffered instruction was not relevant and did
not constitute a proper construction of the law of negligence, we need not address the
prejudicial error issue. We therefore affirm the judgment of the district court.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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