Modec v. City of Eveleth

Decision Date31 October 1947
Docket NumberNo. 34473.,34473.
CourtMinnesota Supreme Court

Appeal from District Court, St. Louis County; Edward Freeman, Judge.

Action by Mary Modec against the City of Eveleth for injuries sustained when plaintiff was struck by a flying puck while watching a hockey game at an arena owned and operated by defendant city. Upon defendant's alternative motion for judgment or a new trial after a verdict for plaintiff, the court granted motion for judgment and plaintiff appeals.


A. C. Johnston, of Minneapolis, for appellant.

M. H. Greenberg, of Eveleth, for respondent.


Plaintiff recovered a verdict for $2,000 in her negligence action against defendant. Upon defendant's alternative motion for judgment or a new trial, the court, by its order here for review, granted the motion for judgment. Plaintiff has appealed.

During the time here involved, defendant was the owner of a building known as the Hippodrome, constructed at least 20 years ago and used in large part during the winter for hockey games. It has a large arena, which during the winter months is covered with ice and is used by high-school, college, semiprofessional, and independent teams for hockey games, and also by the general public for skating. During other seasons, it is used for various recreational and educational projects put on by the city. We are primarily concerned with the arena as it is used during the winter, which is also the hockey season.

The arena is surrounded by seats for the use of spectators. In front of the first row of seats there is a wooden wall which extends above the ice surface about four feet. The bottom row of seats is about two feet below the top of this wall. From there, the rows of seats rise in tiers, so that spectators occupying seats at the higher levels are afforded an unobstructed view of the games staged on the ice.

In the playing of hockey, goals are placed at the ends of the arena. Back of the goals are wire nets. These are of a sufficient height to protect against possible injury to any spectator sitting behind the goals from a flying puck if it is raised off the ice by a player's stick. There is no such net along the sides of the rink.

At the time in question, the city had leased this building to a private concern, referred to in the record as the Eveleth Hockey Association. For that privilege or right, it paid the city $150 for the hockey season. As lessee, it was in full charge of the arena, and it charged and collected general admission fees. There were no reserved seats, and spectators who paid the admission fee had the right to select any seat they wished or could obtain. There is no evidence in the record that plaintiff could not have taken a seat back of the wire net behind one of the goals had she so desired.

The record does not show how often a puck actually leaves the ice, clears the side wall, and lands among the spectators, or the probability of its doing so. Hockey has been played in this arena for more than 20 years, and this was the first time, so far as the record discloses, that a puck shot by one of the players had struck a spectator.

Plaintiff was about 37 years of age at the time she suffered the injury for which this action was brought. She had lived in defendant city all her life and had attended several hockey games there. She also had a brother who played hockey. She knew how the game was scored, and she was generally familiar with such hockey terms as "net," "puck," and "end zones."

In granting the motion for judgment, the trial court recited the fact that the teams of many schools, universities, and other institutions play hockey extensively, and that this is especially true in the region of Eveleth and other Range towns. The court was of the view that in the situation here presented a person attending such a game was presumed to know and appreciate the risks of being hit by a puck during the playing of the game, and that the rule of law as applied by this and other courts in baseball games should apply here. Applying our holdings in baseball cases, the court concluded that defendant had not been proved negligent in any respect, and that plaintiff had assumed the risk of injury. In support of its view, the court cited Wells v. Minneapolis Baseball & Athletic Ass'n, 122 Minn. 327, 142 N.W. 706, 46 L.R.A.,N.S., 606, Ann.Cas.1914D, 922, and Brisson v. Minneapolis Baseball & Athletic Ass'n, 185 Minn. 507, 240 N.W. 903. It recognized the fact that there is a division of opinion among the courts as to whether the nonliability rule applied in baseball games should be applied to hockey. It cited cases from California, Nebraska, Massachusetts, and Rhode Island holding that spectators are not so familiar with hockey as they are with baseball, and for that reason assumption of risk becomes a fact issue for the jury to determine. These courts think that hockey is a comparatively new sport and little known to most people; hence, that the risks commonly known and appreciated by spectators in connection with baseball games do not apply to hockey games.

Hockey is played on the ice by two opposing teams of six persons each. The playing space, which is oblong in shape, is usually limited by marks on the ice or by barriers, such as the wooden walls in this case. At each end of the playing area, a short distance removed from the barrier, there are goals. These are fashioned of netting over a frame in the shape of a leanto, with the open side away from the barrier. The players use skates and are equipped with long-handled sticks or clubs. The striking end of the hockey stick forms about a 110-degree angle with the handle, is about 16 inches long, three to four inches high, a fraction of an inch wide at the top, and slightly wider at the bottom. The puck is the bone of contention in the game.

The object of the game is to place the puck in the goal of the opposing team either by pushing it or by striking it with such force from the playing area as to cause it to fly past the opposing player guarding the goal. Bodily contact is not barred, but is an accepted way for a player to stop his opponent. Thus, the ability to give and take is essential to a successful hockey player. Speed is also an important phase of the game. Sports authorities generally consider it to be the fastest game played in this country and Canada. Thus, the ability of these expert skaters to execute at high speed the difficult plays of the game and the strength required to withstand the crushing contacts inflicted by player upon player in an effort to get possession of the zealously guarded puck show that hockey is a game where speed, skill, and physical endurance are of the utmost importance. It is a man's game. When the puck is passed from player to player across the playing area, it often rises from the ice. Since the puck is round with a flat bottom and top, it is not always possible for a particular player to determine the direction the puck will take when in flight, nor how high it will rise. Any person of ordinary intelligence cannot watch a game of hockey for any length of time without realizing the risks involved to players and spectators alike.

1-2. That there are dangers...

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