BRATVOLD, Judge.
Appellant James Ariola, as next of kin and trustee of the estate of his son, Jack Ariola Erenberg, appeals the district court's judgment dismissing his wrongful-death action against respondent City of Stillwater (the city) and the judgment taxing costs and disbursements against him personally. The district court granted the city's summary-judgment motion, dismissing the complaint with prejudice on two independent grounds. First, the district court found that it lacked subject-matter jurisdiction because Ariola did not file a trustee's oath within the three-year statute-of-limitations period for bringing a wrongful-death lawsuit. Second, the district court determined that the city was entitled to statutory recreational-use immunity. The district court concluded that no genuine issue of material fact was raised regarding whether the city had actual knowledge of an artificial condition likely to cause death or serious bodily harm under the adult trespasser exception to recreational-use immunity. We affirm in part, reverse in part, and remand for three reasons.
First, we conclude that the district court erred by dismissing Ariola's complaint for lack of subject-matter jurisdiction because Ariola is a duly appointed trustee, he timely filed this wrongful-death action, and the oath requirement in the wrongful-death statute is not a jurisdictional requirement.
Second, regarding recreational-use immunity, we hold that the adult trespasser exception requires a municipality to have actual knowledge of an artificial condition likely to cause death or serious bodily harm. Because the evidence Ariola submitted on summary judgment does not create a genuine issue of material fact that the city had actual knowledge of a danger, we affirm the district court's grant of summary judgment to the city.
Third, the district court made no finding of mismanagement or bad faith by Ariola under Minn. Stat. § 549.14 (2016). Thus, we reverse the district court's judgment of costs and disbursements against Ariola personally and remand to the district court for further proceedings consistent with this opinion.
This is the second appeal in a wrongful-death lawsuit arising out of the death of nine-year-old Jack on August 6, 2012. See Ariola v. City of Stillwater, No. A14-0181, 2014 WL 5419809 (Minn. App. Oct. 29, 2014), review denied (Minn. Jan. 20, 2015). Jack died from primary amoebic meningoencephalitis (PAM), a brain infection that is 99% fatal. PAM is extremely rare. From 1962 to 2012, there were only 128 reported cases of PAM in the United States. Before 2010, there had never been a reported case of PAM as far north as
In early August 2012, Jack was exposed to NF while swimming in Lily Lake, a body of fresh, untreated water located in the city of Stillwater. The lake abuts Lily Lake Park, which the city owns and maintains. The city improved Lily Lake by constructing park facilities, including grills, a beach area, tennis courts, a dock, and a boat ramp. Lily Lake beach is the city's only public swimming beach. The city maintains the beach by grading it and adding sand above the water level.
In response to the city's summary-judgment motion, Ariola advanced two theories to explain NF's presence in Lily Lake. First, Ariola argued that NF occurred because the city constructed a storm-water system that directed runoff from a 587-acre, fully developed urban watershed into Lily Lake. The city's system was developed before "implementation of regulations requiring stormwater treatment, [and] there is minimal pretreatment of [the] runoff." One of the pipes is located within 30 meters of the public swimming area. Ariola's experts opined that "[t]here is a high probability that the untreated storm water run-off into Lily Lake was the source of the population of" NF in Lily Lake, and "[t]he presence of a zone of shallow waters would promote the growth of ameba [sic] populations in the warmer months."
Second, Ariola offered evidence that the city knew about pollution in Lily Lake but failed to remedy it. In the late 1990s and early 2000s, a citizen group started a campaign to improve Lily Lake's water quality and to raise awareness that storm-water runoff polluted Lily Lake.
In June 1996, the city collaborated with the citizen group to develop a three-step plan to improve Lily Lake's water quality; specifically, that the city would construct three drainage and treatment systems to divert the flow of storm water into Lily Lake. Although the plan was approved by the city, only one of the three steps was completed.
The city took other steps to improve Lily Lake.
Ariola also claimed that the city should have known about NF because seven-year-old A.B., a Stillwater resident, died from
Washington County, the Minnesota Department of Health (MDH), and the Centers for Disease Control (CDC) investigated A.B.'s death. In August and September 2010, the county assisted the MDH in collecting water and sediment samples from the three bodies of water in which A.B. swam to determine which had NF. In a September 1, 2010 e-mail, county employees were notified of a Star Tribune article reporting on A.B.'s death. The text of the e-mail states, in part: "Local units of government were unaware of potential relationship between illness and body of water in their jurisdiction." On September 15, 2010, the MDH notified the county that Lily Lake water and sediment samples tested positive for NF.
In November 2010, two MDH investigators told A.B.'s mother that NF in Lily Lake had caused her daughter's death. A.B.'s mother testified that the MDH did not tell her to keep this information confidential, and she assumed that the MDH would share the information with the city. A.B.'s mother also testified that, while she disclosed the cause of her daughter's death to her friends and family, she did not tell the city.
In 2011 and 2012, the county partnered with the CDC to take water and sediment samples from ten lakes in Minnesota, including Lily Lake. In 2011, Lily Lake was one of five lakes that tested positive for NF. On July 13, 2012, before the 2012 samples were collected, an MDH employee told the county that he was "nervous about the potential for more PAM cases given the extremely hot weather we've been having." On August 17, 2012, after Jack's death, the CDC notified the county that Lily Lake's sediment samples contained NF.
The city administrator and city engineer/public works director testified that the city has no public health department and relies on the county for information. City testimony also established that it has a close relationship with the county, and the city would have expected the county to share important public health information. Yet, the Washington County Director of the Public Health and Environment Department stated in an affidavit that the county partnered only with the CDC and MDH in investigating A.B.'s death.
Ariola deposed three city officials and all three — the city administrator, city engineer/public works director, and the city public works superintendent — testified that they had not seen or read any newspaper articles or the scholarly article reporting on A.B.'s death, NF, and the link to swimming in Lily Lake. The city subscribes to the Pioneer Press and Stillwater Gazette, but not the Star Tribune or Clinical Infectious Diseases. The city administrator agreed that it is safe to assume that some city employees read these newspapers. Nonetheless, nothing in the record established that any city employee had received, reviewed, or discussed any of the six media articles about A.B.'s death that Ariola filed on summary judgment.
The three city officials also testified that, before Jack's death, they were unaware that A.B. had died from NF after swimming in Lily Lake, that Lily Lake contained a dangerous substance, or that the county, MDH, and CDC had taken samples from Lily Lake for testing. The city also submitted affidavits by six city public works employees, who asserted that they did not know, before Jack died, about NF, that anyone had died from an amoeba in Lily Lake, that Lily Lake contained an amoeba that might cause death, or that the county had tested Lily Lake to determine if it contained a dangerous amoeba. No testimony or affidavit contradicted these assertions.
After A.B.'s death, Lily Lake remained open to the public. Signs posted in Lily Lake Park warned of various risks, such as swimming without a lifeguard on duty, but did not warn of the risk of NF. After Jack's death, the city closed Lily Lake beach and posted "No Swimming" signs that warned of the risk of NF.
On November 8, 2012, Ariola filed a verified petition asking the district court to appoint a trustee to bring a wrongful-death lawsuit on behalf of Jack's next of kin. The petition included Ariola's written consent to serve as trustee and a certification by a public notary that it was "sworn to and subscribed by James Ariola in [the notary public's] presence this 30th day of October 2012."
On December 21, 2012, the district court granted Ariola's petition. That same day, Ariola filed suit against Washington County, the MDH, the city, and the city's parks and recreation commission.
On December 5, 2013, the district court granted each defendant's motion to dismiss and denied leave to file a second amended complaint because the claims "would necessarily fail as a matter of law." Relevant to this appeal, the district court concluded that Ariola's claims against the city were barred by recreational-use immunity.
Ariola appealed, and on October 27, 2014, this court affirmed the dismissal of claims against the county and MDH, but reversed the dismissal of claims against the city. See Ariola, 2014 WL 5419809.
The parties proceeded with the second amended complaint and the city filed its answer, asserting statutory immunity, lack of standing and statutory authority to sue as trustee, and lack of jurisdiction as affirmative defenses. The city moved for summary judgment on three grounds: (1) lack of subject-matter jurisdiction because Ariola failed to file a trustee's oath within the three-year statute-of-limitations period for bringing a wrongful-death action; (2) recreational-use immunity; and (3) wild-animal immunity.
On March 4, 2016, the district court granted the city's summary-judgment motion, dismissing all of Ariola's claims with prejudice.
I. Did the district court err by determining that it lacked subject-matter jurisdiction because Ariola failed to file a trustee's oath before the statute of limitations expired for bringing this wrongful-death lawsuit?
III. Did the district court abuse its discretion by taxing costs and disbursements against Ariola personally?
As an initial matter, we address whether the statute-of-limitations issue is properly characterized as subject-matter jurisdiction.
A wrongful-death claim is "purely statutory, as common law recognized no such actions on the theory that a claim for personal injuries died with the victim." Ortiz v. Gavenda, 590 N.W.2d 119, 121 (Minn. 1999). Accordingly, the three-year statute of limitations provided in Minnesota's wrongful-death statute, Minn. Stat. § 573.02, is "jurisdictional, requiring dismissal for failure to comply" and does "not have flexible parameters permitting [it] to be ignored if [its] application is too technical." Ortiz, 590 N.W.2d at 122 (quotation omitted); see also Berghuis v. Korthuis, 228 Minn. 534, 536, 37 N.W.2d 809, 810 (1949) ("This period fixing the time within which the right of action for wrongful death may be exercised is not an ordinary statute of limitations. It is considered a condition precedent to the right to maintain the action, and the lapse of such period is an absolute bar."). Based on our caselaw, we conclude that the city's statute-of-limitation defense implicates the court's subject-matter jurisdiction. Subject-matter jurisdiction "is a question of law that we review de novo." Nelson v. Schlener, 859 N.W.2d 288, 291 (Minn. 2015).
Minnesota's wrongful-death statute provides for appointment of a trustee, as follows:
Minn. Stat. § 573.02, subd. 3.
The parties do not dispute that the district court properly appointed Ariola as trustee.
The parties' dispute over the oath requirement presents a question of statutory interpretation, which appellate courts review de novo. Swenson v. Nickaboine, 793 N.W.2d 738, 741 (Minn. 2011). The goal of statutory interpretation is to "`ascertain and effectuate the intention of the legislature.'" Caldas v. Affordable Granite & Stone, Inc., 820 N.W.2d 826, 836 (Minn. 2012) (quoting Minn. Stat. § 645.16 (2010)). To this end, we must first determine whether the statute's language, on its face, is ambiguous. Larson v. State, 790 N.W.2d 700, 703 (Minn. 2010). "A statute is ambiguous if it is reasonably susceptible to more
The first step in our analysis is to ascertain whether the statutory oath requirement is ambiguous. Section 573.02, subdivision 3, does not define "oath." Our caselaw has defined "oath" generally as "all forms of attestation by which a party signifies that he is bound in conscience to perform an act faithfully and truthfully." State v. Gay, 59 Minn. 6, 21, 60 N.W. 676 (1894). Black's Law Dictionary offers the following definition: "A solemn declaration, accompanied by a swearing to God or a revered person or thing, that one's statement is true or that one will be bound to a promise. The person making the oath implicitly invites punishment if the statement is untrue or the promise is broken." Black's Law Dictionary 1239 (10th ed. 2014).
The Minnesota Statutes provide for two types of oaths, consistent with the Black's definition: (1) oaths declaring that one's statement is true, and (2) oaths declaring one's promise to perform certain acts and duties in a prescribed manner. Minnesota Statutes section 358.07 (2016) is the first type of oath because it enumerates that witnesses are required to swear that "the evidence [witness] shall give relative to the cause now under consideration shall be the whole truth, and nothing but the truth," and affiants are required to swear that "the statements of this affidavit, by [affiant] subscribed, are true." Minn. Stat. § 358.07 (7), (10). Minnesota Statutes section 358.06 (2016) is an example of the second type of oath and provides that, "unless otherwise provided by law, every executor, administrator, guardian, trustee... and other person appointed by or made responsible to the court in any action or proceeding" must take and subscribe an oath to "faithfully and justly perform all the duties of the office and trust ... to the best of [one's] ability." Minn. Stat. § 358.06.
The word "oath" in the wrongful-death statute, when read in isolation, does not clearly refer to either type of oath. But the context in which "oath" appears in the wrongful-death statute clarifies any possible ambiguity. Christianson, 831 N.W.2d at 537 ("Multiple parts of a statute may be read together so as to ascertain whether the statute is ambiguous."). Specifically, Minn. Stat. § 573.02, subd. 3, states that "[t]he trustee, before commencing duties shall file a consent and oath." (Emphasis added.) By referring to the trustee's duties when establishing the oath requirement, the wrongful-death statute indicates that the oath is an affirmation by the trustee of faithful performance of duties.
We conclude that the oath requirement in the wrongful-death statute unambiguously refers to the trustee's promise to faithfully carry out the duties of the appointment, namely to act in the best interests of the next of kin. Here, there is nothing in the record showing that Ariola took and filed such an oath. The notary public's certification that Ariola's appointment petition and consent were "sworn to and subscribed" establish that Ariola attested to the veracity of his statements in the petition. While the notary's
The district court concluded that the oath requirement was jurisdictional, relying on caselaw holding that the appointment requirement is jurisdictional. In Ortiz, the Minnesota Supreme Court held that a widow, who had not been appointed as a trustee before the limitations period expired, could not cure the defect in her purported wrongful-death complaint because the appointment requirement is jurisdictional. 590 N.W.2d at 123-24; see also Regie de l'assurance Auto. du Quebec v. Jensen, 399 N.W.2d 85 (Minn. 1987) (holding that, because a non-trustee lacks standing to bring a wrongful-death suit, a non-trustee's filing of the action was a nullity). The district court reasoned that the absence of the oath is like the absence of an appointment order, therefore, Ariola's complaint has a fatal defect and the wrongful-death claim is jurisdictionally barred.
But, the wrongful-death statute is silent as to whether filing a trustee's oath is a jurisdictional requirement for bringing a timely wrongful-death action. To ascertain whether the oath requirement is jurisdictional, an issue of first impression in Minnesota, we first examine the plain language of the statute and then discuss the statutory framework and purpose. Minn. Stat. § 645.16; Eischen v. Cabinet Co. v. Hildebrandt, 683 N.W.2d 813, 816-18 (Minn. 2004) (where statutory language is silent, consideration of the statute's purpose and other general legal authorities is relevant to statutory construction analysis).
The relevant statute of limitations is in Minn. Stat. § 573.02, subd. 1, which provides:
Minn. Stat. § 573.02, subd. 1 (emphasis added). The plain language of subdivision 1 refers only to the appointment of a trustee. Interpreting subdivision 1, we have held that "it is the trustee who has the exclusive right to maintain" a wrongful-death action. Kolles v. Ross, 418 N.W.2d 733, 738 (Minn. App. 1988), review denied (Minn. Mar. 30, 1988).
The oath requirement, on the other hand, appears only in subdivision 3 of the wrongful-death statute. The statutory framework is telling; the legislature's placement of the oath requirement in a different subdivision than the statute-of-limitations provision suggests that it is not a condition precedent to filing a timely wrongful-death lawsuit. Am. Family Ins. Grp. v. Schroedl, 616 N.W.2d 273, 277 (Minn. 2000) ("While statutory construction focuses on the language of the provision at issue, it is sometimes necessary to analyze that provision in the context of surrounding sections."). If the legislature had intended to link the oath requirement with the limitations provision, it could have
Our interpretation of the plain text is supported by an analysis of the purposes served by the appointment and oath requirements in section 573.02. Goodman v. Best Buy, Inc., 777 N.W.2d 755, 758 (Minn. 2010) ("In reading the statute, it is necessary to consider not only the bare meaning of the word or phrase, but also its placement and purpose in the statutory scheme." (quotation omitted)). The appointment requirement serves the essential function of identifying who has standing to commence a wrongful-death action. Save Our Creeks, 682 N.W.2d at 648 ("[I]t is the appointment of the trustee that forms the legal capacity for a successor of the deceased to bring or to continue the action for wrongful death."). Indeed, the appointment requirement protects the integrity of the wrongful-death action itself, to the benefit of defendants and the next of kin, so that the action can be resolved and not usurped by successive purported trustees. Ortiz, 590 N.W.2d at 124 ("The appointment of a trustee under Minn. Stat. § 573.02 is an exercise of the fundamental legal principle that those entitled to recovery as a result of the wrongful death shall be represented by the trustee without compromise.").
In contrast, the oath requirement affirms a trustee's duties to the next of kin. While an important requirement for which compliance is mandatory, the oath pertains to duties that are imposed by law, even if an oath is not sworn. This court has held that the duty of a wrongful-death trustee is to act as a fiduciary for the next of kin. Kolles, 418 N.W.2d at 738 (holding that a wrongful-death trustee may not bring a separate action or negotiate a settlement for her exclusive benefit). Indeed, a trustee fulfills one of its fiduciary duties by timely filing a wrongful-death action on behalf of the next of kin. The oath requirement thus provides a redundant benefit to the next of kin; it should not be construed as a trap to cut off all relief to the next of kin.
Based on the plain language of section 573.02 and its statutory framework, in which the limitations period for wrongful-death actions is separated from and does not refer to the oath requirement in subdivision 3, we conclude that the oath requirement is not jurisdictional. Any other conclusion would require this court to add words to subdivision 1, something that we will not do. Rohmiller v. Hart, 811 N.W.2d 585, 591 (Minn. 2012) ("We cannot add words or meaning to a statute that were intentionally or inadvertently omitted."). Thus, when a wrongful-death trustee has been properly and timely appointed, leaving no doubt of his "exclusive right" to bring and maintain a wrongful-death action, the trustee's failure to file the required oath does not render a timely filed complaint fatally defective or null.
Whether a municipality is protected by statutory immunity is a legal question that this court reviews de novo. Johnson v. State, 553 N.W.2d 40, 45 (Minn. 1996). This court also reviews "a district court's summary judgment decision de novo," analyzing "whether the district court properly applied the law and whether there are genuine issues of material fact that preclude summary judgment." Riverview Muir Doran, LLC v. JADT Dev. Grp., LLC, 790 N.W.2d 167, 170 (Minn. 2010) (citation omitted). A summary-judgment award will "be affirmed if it can be sustained on any ground." Winkler, 539 N.W.2d at 828.
On a motion for summary judgment, "[j]udgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law." Minn. R. Civ. P. 56.03. Evidence is viewed "in the light most favorable to the nonmoving party" and all doubts are resolved against the moving party. Rochester City Lines, Co. v. City of Rochester, 868 N.W.2d 655, 661 (Minn. 2015), cert. denied, ___ U.S. ___, 136 S.Ct. 849, 193 L.Ed.2d 720 (2016).
"When a motion for summary judgment is made and supported, the nonmoving party must `present specific facts showing that there is a genuine issue for trial.'" DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (quoting Minn. R. Civ. P. 56.05). "[T]here is no genuine issue of material fact for trial when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue." Id. at 70. Summary judgment, however, is a "blunt instrument," and is inappropriate when reasonable persons might draw different conclusions from the evidence presented. Osborne v. Twin Town Bowl, Inc., 749 N.W.2d 367, 371 (Minn. 2008) (quotation omitted). Nevertheless, "[m]ere speculation, without some concrete evidence, is not enough to avoid summary judgment." Id. (alteration in original) (quotation omitted).
Generally, municipalities are liable for their own torts and those of their "officers, employees and agents acting within the scope of their employment." Minn. Stat. § 466.02 (2016). The legislature has carved out certain statutory exceptions to municipal tort liability. Minn. Stat. § 466.03 (2016). Relevant here, municipalities
Id., subd. 6e. This so-called "recreational-use immunity" does not wholly absolve municipalities from liability. Subdivision 6e also provides that "[n]othing in this subdivision limits the liability of a municipality for conduct that would entitle a trespasser to damages against a private person." Id. The "trespasser exception" means that a municipality "is liable only if it violated the standard of care that a private landowner owes to a trespasser." Fear v. Indep. Sch. Dist. 911, 634 N.W.2d 204, 213 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001). "The plaintiff bears the burden of establishing that each of the elements of [the trespasser exception] has been met in order to defeat a claim of immunity." Martinez v. Minn. Zoological Gardens, 526 N.W.2d 416, 418 (Minn. App. 1995), review denied (Minn. Mar. 29, 1995).
Minnesota has adopted the Restatement (Second) of Torts as "[t]he standard for determining whether a trespasser is entitled to damages" against a municipality under the trespasser exception. Steinke v. City of Andover, 525 N.W.2d 173, 176 (Minn. 1994). The Restatement establishes two standards of care owed to trespassers. Section 335 is the generally applicable "adult" trespasser standard, and section 339 is the more stringent "child" trespasser standard of care.
In the first appeal, this court held that the section 335 adult trespasser standard applies because Jack was accompanied by adults while swimming in Lily Lake. Ariola, 2014 WL 5419809, at *3 (citing Johnson v. Washington County, 518 N.W.2d 594, 599 (Minn. 1994)).
In granting the city's summary-judgment motion, the district court focused on the third element and concluded that there is no genuine issue of material fact regarding the city's actual knowledge before Jack died. Because the record contained no evidence that the city actually knew of any condition in Lily Lake that was likely to cause death or serious bodily harm, the district court concluded that the city was entitled to relief as a matter of law under recreational-use immunity, and did not address
On appeal, Ariola contends that the district court erred because there is a fact question whether the city knew about an artificial condition in Lily Lake likely to cause death or serious bodily harm.
The Minnesota Supreme Court has not decided whether actual or constructive knowledge of an artificial condition likely to cause death or serious bodily harm is required for the adult trespasser exception to recreational-use immunity. In six published cases over the course of nearly thirty years, this court has expressly held that actual knowledge is required. Krieger v. City of St. Paul, 762 N.W.2d 274, 278 (Minn. App. 2009); Prokop, 754 N.W.2d at 715; Lundstrom v. City of Apple Valley, 587 N.W.2d 517, 520 (Minn. App. 1998); Cobb v. State, Dep't of Nat. Res., 441 N.W.2d 839, 841-42 (Minn. App. 1989); Lawler v. Soo Line R.R., 424 N.W.2d 313, 317 (Minn. App. 1988), review denied (Minn. Aug. 24, 1988); Henry v. State, 406 N.W.2d 608, 612 (Minn. App. 1987), review denied (Minn. Aug. 12, 1987).
One exception is Noland v. Soo Line R.R., which applied a constructive knowledge standard.
The doctrine of stare decisis guides our decision on this issue because it "directs that we adhere to former decisions in order that there might be stability in the law." Doe v. Lutheran High Sch. of Greater Minneapolis, 702 N.W.2d 322, 330 (Minn. App. 2005) (quotation omitted), review denied (Minn. Oct. 26, 2005). "Stare decisis is not an inflexible rule of law but rather a policy of the law." Johnson v. Chicago, Burlington & Quincy R.R., 243 Minn. 58, 68, 66 N.W.2d 763, 770 (1954). We will only overrule our precedent if provided with a compelling reason to do so. Fleeger v. Wyeth, 771 N.W.2d 524, 529 (Minn. 2009). "[T]he reasons for departing from former decisions [must] greatly outweigh reasons for adhering to them." Johnson, 243 Minn. at 68, 66 N.W.2d at 770.
We conclude that there are at least three compelling reasons to overrule Noland. First, Noland is the only published decision that announced a constructive knowledge standard. Six other published decisions have stated that the adult trespasser exception requires actual knowledge. Notably, our three most recent published decisions specifically held that actual knowledge is required.
Second, recent decisions appear to implicitly overrule Noland, but this case demonstrates that Noland continues to create confusion for district courts, counsel, and parties, causing unnecessary use of resources in litigating this issue. Because section 335 of the Restatement defines an exception to municipal tort immunity, consistent interpretation and clear direction from this court is crucial in establishing the scope of a municipality's potential tort liability for parks and recreational areas.
Third, the actual knowledge standard is consistent with the text of section 335, which provides that the landowner may be liable for injury caused by an artificial condition that "is, to his knowledge, likely to cause death or serious bodily harm." Restatement (Second) of Torts § 335 (1965) (emphasis added). This court has aptly explained that "section 335 of the Restatement requires actual knowledge rather than employing the `reason to know' standard found elsewhere in the Restatement." Henry, 406 N.W.2d at 612. Accordingly, for these three reasons, we overrule Noland. We hold that, consistent with the majority of this court's published decisions applying section 335, a municipality's actual knowledge of an artificial condition likely to cause death or serious bodily harm is required to establish the adult trespasser exception to recreational-use immunity.
Initially, the parties dispute the type of evidence on which Ariola may rely in proving the city's actual knowledge; we will address this issue before reviewing the record evidence. Ariola argues that he can prove actual knowledge with circumstantial evidence. The city contends that direct evidence is required.
Turning to the summary-judgment analysis, we examine the circumstantial evidence of the city's actual knowledge, including: (a) past complaints the city received about pollution in Lily Lake; (b) media coverage of A.B.'s death in 2010; and (c) the county's water testing and awareness of the risk of NF in Lily Lake before Jack's death. Because we are reviewing a summary-judgment decision, we will address each category of circumstantial evidence, drawing all inferences in favor of Ariola. Rochester City Lines, 868 N.W.2d at 661.
Ariola offered evidence of pollution complaints the city received in the late 1990s and early 2000s about Lily Lake and the 2007 lake-management plan, which found that Lily Lake contained excess amounts of phosphorus and chlorophyll-a. Ariola argues that, because "it is not necessary to prove the landowner anticipated the exact nature of the particular accident that occurred," a reasonable jury could conclude that the city's knowledge of the pollution establishes the city's knowledge of a condition likely to cause death or serious bodily harm.
The record supports Ariola's claim that the city had actual knowledge that Lily Lake was polluted, but this evidence does not satisfy the trespasser exception. Our caselaw establishes that a municipality must have actual knowledge of a condition that is likely to cause death or serious bodily injury. In Johnson v. State, this court explained that conditions that are likely to cause death or serious bodily harm under the trespasser exception "generally have inherently dangerous propensities, such as a high voltage electrical wire." 478 N.W.2d 769, 773 (Minn. App. 1991), review denied (Minn. Feb. 27, 1992). Ariola's theory fails because he offered no evidence that the city knew the lake's pollution was inherently dangerous, likely to cause death or serious bodily harm, or contained NF.
There is no evidence that, at any time before Jack's death, the city received complaints about the water causing death or serious bodily harm to a swimmer.
Ariola claims that the media coverage of A.B.'s death in 2010 creates an inference that the city "more likely than not" was aware of the risk of NF in Lily Lake before Jack's death. The record evidence does not support Ariola's claim. While the evidence establishes that the city subscribes to the Stillwater Gazette and Pioneer Press, there is no evidence that any city official or employee received, read, or discussed the newspaper articles about A.B.'s death, the cause of her death, or the link to NF in Lily Lake.
Ariola cites the city administrator's testimony agreeing that it is safe to assume that some city employees read these newspapers. Ariola also asserts that, because A.B.'s mother's testified that the media aggressively pursued her after her daughter's death, it is safe to assume that the media also contacted the city. Both pieces of evidence ask a jury to speculate about the city's knowledge and therefore are not sufficient to defeat summary judgment.
We acknowledge Ariola's incredulity in response to the city's assertion that it lacked actual knowledge of A.B.'s death, given the media attention at the time. But Ariola failed to produce specific facts showing that any city official or employee learned about A.B.'s death, or, more importantly, the cause of her death, before Jack died in August 2012. Even if we begin with the inference that the city had actual knowledge of A.B.'s death, Ariola produced no evidence the city had actual knowledge that her death was caused by NF in Lily Lake or that NF was likely to injure others.
In fact, none of the news articles contained in the record stated that NF in Lily Lake caused A.B.'s death or that Lily Lake contains NF. One article specifically identified Lily Lake as one of three bodies of water in which A.B. swam before her death, but also stated that "officials don't know exactly where [A.B.] was exposed to the amoeba, [and] they say none of the potential sources poses a particular threat to other swimmers." Indeed, one media report quoted a state official as stating that "it is impossible to know" which body of water supplied the specific organism that led to A.B.'s death. Notably, all of the articles advised readers to continue to swim in lakes because infections from NF are "exceedingly rare" and posed no "increased risk to the public from any particular body of freshwater."
Ariola argues that a reasonable jury could infer that the city had actual knowledge of a dangerous condition in Lily Lake because the county and city have a close relationship, the county knew that Lily Lake tested positive for NF in 2010 and 2011, and the county would have been expected to share this information with the city. Ariola offers no record evidence, however, that, on this occasion, the county
To support an inference that the county shared information about Lily Lake with the city, Ariola relies on circumstantial evidence as follows: (a) the September 1, 2010 e-mail between county officials, which implies that "local units of government" were aware of A.B.'s death; (b) the mayor's statements at a town-hall meeting after Jack's death; (c) A.B.'s mother was never instructed to keep the cause of her daughter's death confidential; and (d) A.B.'s mother shared the information about Lily Lake with her family and friends.
Ariola advances two additional theories for proving actual knowledge. First, relying on Minnesota caselaw that construes the "expected" damage provision in insurance policies, Ariola argues that he can prove actual knowledge through evidence of willful blindness. Ariola's position is not well-taken. Whether in civil or criminal cases, willful blindness requires proof that the defendant deliberately avoided obtaining actual knowledge. Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 769, 131 S.Ct. 2060, 2071, 179 L.Ed.2d 1167 (2011) (civil); United States v. Barnhart, 979 F.2d 647, 651 (8th Cir. 1992) (criminal). Because Ariola did not produce any evidence of the city's deliberate efforts to avoid obtaining actual knowledge of NF in Lily Lake, caselaw involving willful blindness does not apply.
Second, Ariola asserts that inquiry or implied notice may prove actual knowledge. This court has held that "[i]mplied notice differs from constructive notice in that, [it] relates to what one can learn by reasonable inquiry. It arises from actual notice of the circumstances, and not from constructive notice." Elfelt, 756 N.W.2d at 508 n.5 (second alteration in original) (quotation omitted) (emphasis added). Moreover, "[i]mplied notice charges a person with notice of everything that he could have learned by inquiry where there is sufficient actual notice to put him on guard and excite attention." Id. As discussed, the evidence does not create a fact issue that the city had actual knowledge that NF in Lily Lake caused A.B.'s death, or that Lily Lake contained NF.
Indeed, even assuming that the city had actual knowledge of the media articles reporting A.B.'s death, it is speculative whether the city should have inquired about the cause of her death or the source of the NF because the articles stated that NF was extremely rare, that it was safe to swim in lakes, and that the source of NF causing A.B.'s death was unknown. Therefore, Ariola did not produce evidence of the city's actual knowledge of circumstances from which the caselaw would impose a duty to inquire of a dangerous condition in Lily Lake.
The circumstances of Jack's death and the suffering by Jack's family are heartbreaking. We also acknowledge that this opinion, in conjunction with our decision in the first appeal, has the cumulative effect of denying relief for Jack's estate. There is no question that the immunity bar has harsh consequences. County of Washington v. City of Oak Park Heights, 818 N.W.2d 533, 543 (Minn. 2012) (recognizing the "harsh results of governmental immunity for tort and contract liability"). Summary judgment, however, requires that the nonmoving party produce evidence with specific facts showing a genuine issue for trial. Minn. R. Civ. P. 56.05. Moreover, our precedent establishes that this evidence must do more than engender speculation. Osborne, 749 N.W.2d at 371. Our review of the record compels affirmance of the district court's entry of summary judgment for the city.
This court reviews "a district court's award of costs and disbursements for an abuse of discretion." Dukowitz v. Hannon Sec. Servs., 841 N.W.2d 147, 155 (Minn. 2014). "The district court has discretion to determine the prevailing party and the amount of [taxable] costs and disbursements, but has no discretion to relieve the nonprevailing party of its obligation to pay those costs and disbursements." Kalenburg v. Klein, 847 N.W.2d 34, 42 (Minn. App. 2014). "Interpretation of a statute presents a question of law, which we review de novo." Swenson, 793 N.W.2d at 741. Ariola argues that the district court abused its discretion in taxing $2,528.10 in costs and disbursements against him personally because he brought this wrongful-death lawsuit as a trustee, not in his personal capacity.
"In every action in a district court, the prevailing party ... shall be allowed reasonable disbursements paid or incurred...." Minn. Stat. § 549.04, subd. 1 (2016). Additionally, "costs shall be" awarded to the defendant "[u]pon discontinuance or dismissal or when judgment is rendered in the defendant's favor on the merits." Minn. Stat. § 549.02, subd. 1 (2016). But district courts have limited discretion in awarding costs and disbursements against trustees:
Minn. Stat. § 549.14.
Ariola brought this lawsuit as a duly appointed wrongful-death trustee under Minn. Stat. § 573.02. Recently, we explained that "the wrongful-death statute neither transforms the decedent's claim into the next-of-kin's claim nor permits the decedent's next-of-kin to file suit against the tortfeasor in his individual capacity. Rather, the wrongful-death statute, by its express terms, permits the trustee ... to
Thus, Ariola did not — and could not — bring this wrongful-death lawsuit in his personal capacity. As such, section 549.14 requires a finding of mismanagement or bad faith before the city's costs and disbursements may be taxed against Ariola personally. See Minneapolis St. Ry. v. Rosenbloom, 208 Minn. 187, 189-90, 293 N.W. 256, 256-57 (1940) ("[Section 549.14] simply authorizes the court in which the representative appears as a party to award costs and disbursements against him personally for his misbehavior in bringing or managing the action.").
The city argues that Ariola is a "party represented" against whom costs and disbursements may be charged because he is Jack's next of kin. But, as the trustee in this wrongful-death lawsuit, Ariola is a fiduciary of Jack's next of kin. Kolles, 418 N.W.2d at 738. Thus, Ariola appears in this lawsuit in a representative, not a personal, capacity. Accordingly, only Jack's estate may be taxed the costs and disbursements. We reverse the district court's award of costs and disbursements and remand for further proceedings consistent with this opinion.
Because the statutory requirement that a wrongful-death trustee file an oath before commencing duties is not jurisdictional, the district court erred in dismissing Ariola's claims for lack of subject-matter jurisdiction. We nonetheless affirm the dismissal of the complaint on the basis of statutory recreational-use immunity because there was no genuine issue of material fact that the city had actual knowledge of an artificial condition likely to cause death or serious bodily harm under the adult trespasser exception in the Restatement (Second) of Torts § 335. Because a wrongful-death trustee cannot be held personally liable for costs and disbursements without a finding of mismanagement or bad faith under Minn. Stat. § 549.14, the district court abused its discretion in taxing costs and disbursements against Ariola personally and we remand to the district court.
