Housing & Redevelopment Authority of Duluth, Appellant,
Shawn Kelly, as heir, Next of Kin and Personal Representative of the Estate of Kenneth Kelly, Respondent

No. CX-01-1638

State of Minnesota in Court of Appeals

May 21, 2002

Michael W. Haag, Steven J. Sheridan, 1000 Alworth Building, P.O. Box 745, Duluth, MN 55801 (for appellant)

William O. Bongard, 900 Midwest Plaza East, 800 Marquette Avenue, Minneapolis, MN 55402; and Wilbur W. Fluegel, 701 Fourth Avenue South, Minneapolis, MN 55415 (for respondent)

Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Poritsky, Judge.1 

R. A. Randall, Judge.



Housing & Redevelopment Authority of Duluth (HRA) appeals a jury award in a personal injury action alleging appellant had no duty to warn respondent in the absence of an actual defect in the property. HRA also argues it had no duty to warn of a danger or defect that arose from respondent's own negligence; and claims that respondent's actions of leaving a window open, in the winter, was an open and obvious danger, which did not give rise to a duty to warn. We affirm.


Respondent, Kenneth Kelly, rented an 11th floor apartment from appellant, HRA of Duluth. In January 1996, respondent opened a window in his apartment to ventilate his apartment because he was smoking and then went to bed. The temperature was 20 degrees below zero. During the evening, the hot water radiator, which was located three feet under the window, froze and spilled approximately 1 1/2 to 2 inches of hot water onto the floor. The manager went to Kelly's apartment because a tenant below Kelly had complained to the manager about water coming into her apartment from above. When the manager opened the door, it awoke Kelly, who then walked through the hot water (unknowingly) in his bare feet toward the door. Kelly incurred approximately $180,000 in medical bills because of burns to his feet, legs, and hands from contact with the hot water.

In buildings owned by HRA, pipes previously had frozen and broken when tenants left windows open to cool apartments down. One incident resulted in property damage; however, there is no evidence in the record about personal injuries on any occasion.

HRA moved for summary judgment following discovery, arguing that no defective condition existed that would require a duty to warn respondent, and that Kelly created the condition. The district court denied the motion on June 22, 1999, determining that there existed fact questions for the jury whether (a) HRA had knowledge that would cause a prudent owner to suspect a danger existed, (b) Kelly, exercising due care, would not have discovered the condition, and (c) whether HRA had a duty to disclose the information to respondent.

Kenneth Kelly passed away from unrelated causes and Shawn Kelly, his son, was substituted. A jury trial was held on May 15 and 16, 2001. The parties earlier stipulated to damages, thus the jury determination was only on liability. The jury returned a verdict, stating that each party was 50 percent at fault, thus, the district court entered judgment for respondent for 50 percent of the damages.

Following the jury verdict, HRA brought a motion for judgment notwithstanding the verdict, or in the alternative, a new trial, arguing that (1) it had no duty to warn without an actual defect in the premises, (2) a landlord has no duty to warn of conditions that result from the tenant's negligence, and (3) the condition in Kelly's apartment was open and obvious. HRA further asserted that the district court gave erroneous jury instructions regarding a landlord's duty to a tenant. HRA argued that the instruction failed (1) to inform the jury that the defective condition had to exist at the time the tenant took possession and (2) to state a landlord does not have a duty to warn of a condition that was unsafe due to the tenant's actions.

The district court denied HRA's motion and entered a verdict in Kelly's favor for $74,074.95. HRA appeals.


To determine the propriety of an order denying judgment notwithstanding the verdict, the applicable standard is whether there is any competent evidence reasonably tending to sustain the verdict. A motion for judgment notwithstanding the verdict admits every inference reasonably to be drawn from the evidence as well as the credibility of the testimony for the adverse party. "Unless we are able to determine that the evidence is practically conclusive against the verdict, or that reasonable minds could reach but one conclusion against the verdict, the trial court's order denying the motion for judgment notwithstanding the verdict should stand." Bisher v. Homart Dev. Co., 328 N.W.2d 731, 733 (Minn. 1983). Whether a legal duty exists is generally a question of law for this court to determine de novo. Johnson v. State, 553 N.W.2d 40, 49 (Minn. 1996).

We find enough evidence in the record to support the verdict that HRA had a duty to warn Kelly that the pipes may freeze and burst if he left the window open during the cold weather. Under common law liability a landlord is not liable to a tenant for injuries caused by defective conditions existing at the time the premises were leased unless:

(1) [T]here is a hidden dangerous condition on the premises of which the landlord is aware, but the tenant is not; (2) the land is leased for purposes involving admission to the public; (3) the premises are still in control of the landlord; and (4) the landlord negligently repairs the premises. Broughton v. Maes, 378 N.W.2d 134, 135 (Minn. App. 1985), review denied (Minn. Feb. 14, 1986).

The landowners' duty of reasonable care includes the duty to warn entrants of obvious dangers when the landowners can anticipate that harm will occur despite the obvious nature of the danger. See, e.g., Peterson v. Rawleigh Co., 274 Minn. 495, 497-98, 144 N.W.2d 555, 558 (1966) (holding that landlord had duty to warn of anticipated slippery conditions on his premises). In this case, Mr. Haldorson, a HRA maintenance mechanic, stated in his deposition that he remembers four different flooding incidents that occurred in similarly designed buildings owned by HRA, between 1989 and 1991, caused by pipes freezing and bursting. The record shows that there have been at least six incidents of pipes freezing and bursting in Midtown Manor and other similar buildings dating back to the 1990's. There is evidence that HRA knew that once the pipes burst, hot water will continue to escape until a technician enters the apartment, takes the radiator cover off and shuts off the valve. Therefore, it could be foreseeable, because of the location of the pipes and the previous incidents of broken pipes, that a tenant could leave a window open and be injured by hot water resulting from a broken pipe. We agree with HRA that the evidence supporting the verdict is not overwhelming, but that is not the issue. The issue is whether the record contains enough evidence to support a jury verdict, giving that jury deference on issues of credibility and fact-finding, as we must.

HRA argues that a landlord has no legal duty to warn of a dangerous condition that arises from the injured party's own actions. Generally, a person generally has no duty to protect another, "even if he realizes or should realize that action on his part is necessary." Bigos v. Kluender, 611 N.W.2d 816, 820 (Minn. App. 2000) (quotation omitted), review denied (Minn. Jul. 25, 2000). In this case, the evidence shows that the condition resulted not just from Kelly's negligence but that the dangerous condition resulted from the location of the pipes on an exterior wall, the high degree of the water's temperature, and the fact that once the pipes burst, hot water and steam would continue to escape until a maintenance man turned the pipes off. The evidence shows that Kelly was unaware that (1) that the heating system was a hot water system, (2) if the window was left open in extremely cold weather the pipes would freeze and burst, and (3) if the pipes burst, the temperature of the escaping water was between 190 and 200 degrees, which could result in injuries. HRA was aware that tenants opened windows to ventilate apartments and that the pipes would freeze and emit hot water until the valve was shut off. The evidence on the record is sufficient to sustain the verdict.



1. Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 19. [Back]