Soderberg v. Anderson

• Decision Date: 23 January 2019
• Docket Number: A17-0827
• Parties: Julie A. SODERBERG, Respondent, v. Lucas ANDERSON, Appellant.
• Court: Minnesota Supreme Court

922 N.W.2d 200

Julie A. SODERBERG, Respondent,

v.Lucas ANDERSON, Appellant.

A17-0827

Supreme Court of Minnesota.

Filed: January 23, 2019

James W. Balmer, Falsani, Balmer, Peterson & Balmer, Duluth, Minnesota; and Wilbur W. Fluegel, Fluegel Law Office, Minneapolis, Minnesota, for respondent.

Nathan T. Cariveau, Eden Prairie, Minnesota; and John M. Bjorkman, Larson King, LLP, Saint Paul, Minnesota, for appellant.

Brian N. Johnson, Peter Gray, Nilan, Johnson, Lewis, P.A., Minneapolis, Minnesota, for amicus curiae Minnesota Ski Areas Association.

Peter F. Lindquist, Jardine, Logan & O’Brien, P.L.L.P., Lake Elmo, Minnesota; and Thomas P. Aicher, Cleary Shahi & Aicher, P.C., Rutland, Vermont, for amicus curiae National Ski Areas Association.

Jeffrey J. Lindquist, Pustorino, Tilton, Parrington & Lindquist, PLLC, Minneapolis, Minnesota, for amicus curiae Minnesota Defense Lawyers Association.

Matthew J. Barber, James Ballentine, Schwebel, Goetz & Sieben, P.A., Minneapolis, Minnesota, for amicus curiae Minnesota Association for Justice.

OPINION

LILLEHAUG, Justice.

In 2016, a ski area outside Duluth, Spirit Mountain, was the scene of an accident that caused severe injuries to a ski instructor. While teaching a young student, the instructor was struck by an adult snowboarder performing an aerial trick. The instructor sued the snowboarder for negligence, but the district court dismissed her claim based on the doctrine of implied primary assumption of risk, which is a complete bar to tort liability. The court of appeals reversed. Soderberg v. Anderson , 906 N.W.2d 889 (Minn. App. 2018). This appeal requires that we decide, for the first time, whether to extend that doctrine to recreational skiing and snowboarding. We decide not to extend it and, therefore, affirm the court of appeals’ decision, though on different grounds.

FACTS

On the morning of January 3, 2016, appellant Lucas Anderson, age 35, went snowboarding at Spirit Mountain near Duluth. Spirit Mountain welcomes both skiers and snowboarders to enjoy runs marked "easiest," "more difficult," and "difficult."

Anderson considered himself to be an expert snowboarder. He began skiing in elementary school and took up snowboarding when he was 15.

When Anderson snowboarded at Spirit Mountain, he typically warmed up by going down less challenging runs. That morning, Anderson went down part of a "more difficult" run called Scissor Bill, which merges with an "easiest" run called Four Pipe. As he left Scissor Bill and entered Four Pipe, Anderson slowed down, looked up for other skiers and snowboarders coming down the hill, and proceeded downhill.

Anderson then increased his speed, used a hillock as a jump, and performed an aerial trick called a backside 180. To perform the trick, Anderson—riding his snowboard "regular"—went airborne, turned 180 degrees clockwise, and prepared to land "goofy."¹ Halfway through the trick, Anderson’s back was fully facing downhill. He could not see what was below him.

Respondent Julie Soderberg was below him. A ski instructor employed by Spirit Mountain, she was giving a lesson to a six-year-old child in an area of Four Pipe marked "slow skiing area." At the moment when Anderson launched his aerial trick, Soderberg’s student was in the center of the run. Soderberg was approximately 10 to 15 feet downhill from, and to the left of, her student. She was looking over her right shoulder at her student.

As Anderson came down from his aerial maneuver, he landed on Soderberg, hitting her behind her left shoulder. Soderberg lost consciousness upon impact. She sustained serious injuries.

Soderberg sued Anderson for negligence. Anderson moved for summary judgment, arguing that, based on undisputed facts and the doctrine of implied primary assumption of risk, he owed Soderberg no duty of care and was entitled to judgment as a matter of law. The district court granted summary judgment in Anderson’s favor.

The court of appeals reversed and remanded. Soderberg , 906 N.W.2d at 894. Based on its own precedent of Peterson ex rel. Peterson v. Donahue , 733 N.W.2d 790 (Minn. App. 2007), rev. denied (Minn. Aug. 21, 2007), the court of appeals assumed that the doctrine of implied primary assumption of risk generally applies to actions between skiers. Soderberg , 906 N.W.2d at 892. The court then held that material fact issues precluded summary judgment as to whether Soderberg appreciated the risk that she could be crushed from above in a slow skiing area, and whether Anderson’s conduct "enlarged the inherent risks of skiing." Id. at 893–94. Concluding that the district court erred in granting summary judgment to Anderson, the court of appeals remanded the case to the district court. Id . at 894. We granted Anderson’s petition for review and directed the parties to specifically address whether Minnesota should continue to recognize the doctrine of implied primary assumption of risk.

ANALYSIS

Anderson argues that he owed no duty of care to Soderberg based on the doctrine of implied primary assumption of risk. The doctrine of primary assumption of risk is part of our common law.

Springrose v. Willmore , 292 Minn. 23, 192 N.W.2d 826, 827–28 (1971). The application or extension of our common law is a question of law that we review de novo. See Gieseke ex rel. Diversified Water Diversion, Inc. v. IDCA, Inc. , 844 N.W.2d 210, 214 (Minn. 2014).

In Springrose , we clarified the distinction between primary and secondary assumption of risk. Secondary assumption of risk is an affirmative defense that may be invoked when the plaintiff has unreasonably and voluntarily chosen to encounter a known and appreciated danger created by the defendant’s negligence. Springrose , 192 N.W.2d at 827. Secondary assumption of risk is "an aspect of contributory negligence," and is part of the calculation of comparative fault. Id.

By contrast, primary assumption of risk is not a defense and applies only in limited circumstances. Daly v. McFarland , 812 N.W.2d 113, 120–21 (Minn. 2012) ; Springrose , 192 N.W.2d at 827 (explaining that primary assumption of risk "is not ... an affirmative defense"). Unlike secondary assumption, primary assumption of risk "completely bars a plaintiff’s claim because it negates the defendant’s duty of care to the plaintiff." Daly , 812 N.W.2d at 119. Therefore, primary assumption of risk precludes liability for negligence, Springrose , 192 N.W.2d at 827, and is not part of the calculation of comparative fault. Primary assumption of risk "arises ‘only where parties have voluntarily entered a relationship in which plaintiff assumes well-known, incidental risks.’ " Bjerke v. Johnson , 742 N.W.2d 660, 669 (Minn. 2007) (quoting Olson v. Hansen , 299 Minn. 39, 216 N.W.2d 124, 127 (1974) ); see Armstrong v. Mailand , 284 N.W.2d 343, 351 (Minn. 1979) (noting that the application of primary assumption of risk "is dependent upon the plaintiff’s manifestation of consent, express or implied, to relieve the defendant of a duty").

Here, the parties agree that Soderberg did not expressly assume the risk of being hit by Anderson. So the issue is whether she assumed the risk by implication.

We first considered the applicability of the doctrine of implied primary assumption of risk to sporting events in Wells v. Minneapolis Baseball & Athletic Ass’n , 122 Minn. 327, 142 N.W. 706 (1913), a case in which a spectator at a baseball game was injured by a fly ball. Id. at 707. We rejected the proposition that spectators assume the risk of injury if seated behind the protective screen between home plate and the grandstand. Id. at 707–08. We determined that the ball club was "bound to exercise reasonable care" to protect them by furnishing screens of sufficient size. Id. at 708 (citation omitted) (internal quotation marks omitted).

Nineteen years later, we held that a spectator assumed the risk of injury of being hit by a foul ball by sitting outside the screened-in area. Brisson v. Minneapolis Baseball & Athletic Ass’n , 185 Minn. 507, 240 N.W. 903, 904 (1932). We concluded that the ball club had provided enough screened-in seating "for the most dangerous part of the grand stand." Id. We later clarified in Aldes v. Saint Paul Ball Club, Inc. , 251 Minn. 440, 88 N.W.2d 94 (1958), that a baseball patron "assumes only the risk of injury from hazards inherent in the sport, not the risk of injury arising from the proprietor’s negligence." Id. at 97. Thus, the doctrine applies to "hazards inherent in the sport." Id.

We applied our flying-baseball cases to flying golf balls in Grisim v. TapeMark Charity Pro-Am Golf Tournament , 415 N.W.2d 874 (Minn. 1987). We held that injury from a flying golf ball was an inherent danger of the sport. Id. at 875. The tournament’s sole duty, we said, was to provide the spectator with "a reasonable opportunity to view the participants from a safe area." Id. But we did not say that recreational golfing negligence claims are barred by the doctrine. Nor did we cast doubt on our decision in Hollinbeck v. Downey , 261 Minn. 481, 113 N.W.2d 9, 12–13 (1962), which held that if a golfer knows that another person is in the zone of danger, the golfer should either give the other a warning or desist from striking the ball. See Grisim , 415 N.W.2d at 875–76 (distinguishing the facts in Grisim from those in Hollinbeck , 113 N.W.2d at 12–13, and therefore declining to apply Hollinbeck ).

We have also extended the doctrine to two forms of ice skating: hockey and figure skating. Flying pucks are part of the inherently dangerous game of hockey, we held in Modec v. City of Eveleth , 224 Minn. 556, 29 N.W.2d 453, 456–57 (1947). We stated that "[a]ny 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." Id. at 455.²

We applied the doctrine to recreational figure skating in Moe v. Steenberg , 275 Minn. 448, 147 N.W.2d 587 (1966), in which one ice skater sued another for injuries arising out of a collision...