Wagner v. Thomas J. Obert Enterprises

• Decision Date: 21 November 1986
• Docket Number: No. C1-85-1645,C1-85-1645
• Citation: 396 N.W.2d 223
• Parties: Vera L. WAGNER, et al., Respondents, v. THOMAS J. OBERT ENTERPRISES, Petitioner, Appellant.
• Court: Minnesota Supreme Court

Page 223

396 N.W.2d 223

Vera L. WAGNER, et al., Respondents, v. THOMAS J. OBERT ENTERPRISES, Petitioner, Appellant.

No. C1-85-1645.

Supreme Court of Minnesota.

Nov. 21, 1986.

Syllabus by the Court

1. The trial court did not err in submitting primary assumption of risk to the jury in this roller-skating accident case.

2. The trial court erred by admitting a doctor's notes on accident causation as an admission of a party, but, because the doctor would have and did testify, the error was harmless.

3. Plaintiffs waived any objection to admission of an accident report. Admission of photographs of "Skate At Your OWN Risk" signs was within the trial court's discretion.

William Fishman, Minneapolis, for appellant.

Austin D. Ditzler, Minneapolis, for respondents.

Heard, considered, and decided by the court en banc.

SIMONETT, Justice.

In this case, involving a fall on a roller-skating rink, we hold the trial court properly submitted primary assumption of risk to the jury and, further, that the trial court did not prejudicially err in admitting certain evidence. We reverse the court of appeals' contrary rulings.

On April 12, 1982, plaintiff-respondent Vera L. Wagner, age 57, fell while roller-skating at the skating rink of defendant-appellant Thomas J. Obert Enterprises. The rink itself is a large oval-shaped hardwood floor surrounded by a wall 3 1/2 feet high. There are three exits or openings in the wall, each 6 feet wide, for skaters to pass between the rink and the carpeted lobby area of the building. The rink is one-half inch higher than the lobby floor; this difference in elevation, at each of the rink exits, is covered by a 12-inch wide metal strip which forms a ramp between the two floor levels.

Vera Wagner testified she was leaving the skating rink at one of the exits; that she wanted to step over the metal threshold but the lighting was too dark for her to see it; that she wanted to put her hand on the edge of the rink wall for support but she could not reach the wall because surrounded by youngsters; that she stepped on the metal threshold and fell; and that she then observed the metal ramp had a concave, dished contour. On the other hand, defendant introduced evidence which, if believed, would have tended to refute claims of improper maintenance and supervision.

In addition, defendant presented evidence that the accident happened differently. The skating rink manager testified that after the accident Vera Wagner told him she had simply lost her balance while trying to avoid a child. This information was also in an accident report form completed by the manager, which was received in evidence. Further, Dr. Carl Caspers, the orthopedist who treated plaintiff at the hospital immediately after the accident, testified Mrs. Wagner had told him she fell while concerned about a child. The doctor's hospital notes containing this information were also received in evidence. At the beginning of the trial, plaintiffs moved in limine to exclude Dr. Caspers' hospital notes and photographs of "Skate At Your Own Risk" signs. The motion was denied, and the exhibits were later received in evidence. At the close of the testimony, the jury was instructed on both primary and secondary assumption of risk over plaintiffs' objection that only secondary assumption of risk should be submitted.

The jury found defendant not negligent and Vera Wagner 100% negligent. The trial court denied plaintiffs' post-trial motions for judgment notwithstanding the verdict or, in the alternative, for a new trial, but the court of appeals reversed, granting a new trial. Wagner v. Thomas J. Obert Enterprises, 384 N.W.2d 477 (Minn.App.1986). We granted defendant's petition for further review.

The issues before us are whether the trial court erred by submitting primary assumption of risk to the jury and by admitting the doctor's notes, the accident report, and the photographs of the warning signs.

I.

Primary assumption of risk applies "only where parties have voluntarily entered a relationship in which plaintiff assumes well-known, incidental risks. As to these risks, the defendant has no duty to protect the plaintiff and, thus, if the plaintiff's injury arises from an incidental risk, the defendant is not negligent." Olson v. Hansen, 299 Minn. 39, 44, 216 N.W.2d 124, 127 (1974). On the other hand, secondary assumption of risk "is an affirmative defense to an established breach of duty which may only be raised when the plaintiff has voluntarily chosen to encounter a known and appreciated danger created by the negligence of the defendant." Id. at 43, 216 N.W.2d at 127. Secondary assumption of risk is a form of contributory negligence. Springrose v. Willmore, 292 Minn. 23, 24, 192 N.W.2d 826, 827 (1971).

One of the few instances where primary assumption of risk applies is in cases involving patrons of inherently dangerous sporting events, Springrose, 292 Minn. at 24, 192 N.W.2d at 827, such as skating. In Moe v. Steenberg, 275 Minn. 448, 450-51, 147 N.W.2d 587, 589 (1966), an ice skating case, we quoted with approval a Missouri court's statement that a patron of a roller-skating rink assumes the ordinary, necessary, obvious risks that are incidental to roller-skating, including the risk of falling and colliding with other skaters due to lack of skill or clumsiness. Id., citing Schamel v. St. Louis Arena Corp., 324 S.W.2d 375, 378 (Mo.App.1959). Cases from other jurisdictions are in accord. See, e.g., Smollett v. Skating Development Corp., 793 F.2d 547, 548-49 (3rd Cir.1986) (skater who skated onto carpeted area to avoid a child assumed the risk of falling).

The doctrine of primary assumption of risk does not, however, relieve the rink management of its duty to safely supervise skating activities or to maintain the premises in a safe condition. Negligent maintenance and supervision of a skating rink are not inherent risks of the sport itself. See, e.g., Roll 'R' Way Rinks, Inc. v. Smith, 218 Va. 321, 237 S.E.2d 157 (1977) (roller skater fell while attempting to cross steel transition ramp from rink floor to carpet; jury could find rink owner negligent in not making a permanent repair of the ramp plate thereby leaving the premises unsafe); Johnson v. Amphitheatre Corp., 206 Minn. 282, 288 N.W. 386 (1939) (when roller-skating patron was struck by boys skating unauthorized in the lobby, accident was due not to inherent risk of roller-skating but to management's negligent supervision of its premises).

Here there were two versions of how plaintiff's accident happened. If the accident happened simply because plaintiff, concerned about other skaters, lost her balance and fell while exiting, defendant owed no duty to prevent her fall, or, to put it another way, plaintiff had assumed a primary risk of roller-skating. On the other hand, if the fall occurred as plaintiff testified at trial, defendant owed her a duty of care which was breached and this negligence would be compared with plaintiff's contributory negligence, if any. Which legal principles would govern depended on which version of the facts was found by the jury.

Plaintiffs argue that even if Vera Wagner had fallen to avoid a child, her fall "could have been" attributable to negligent supervision, not an inherent risk of roller-skating. Yet, one can also say her fall "could have been" attributable to an inability to avoid another skater who was on a properly supervised rink. Not every collision or near-collision with another skater signifies poor supervision by the management. Simply because the existence of primary assumption of risk depended on resolution of a fact issue did not mean that primary assumption of risk should not have been submitted to the jury; instead, quite the contrary.

The court of appeals thought that giving instructions on both primary and secondary assumption of risk was confusing to the jury. But the trial court's instructions properly treated the two concepts as separate, legal doctrines, and it was for the jury to determine from the conflicting facts which kind of risk, if either, Vera Wagner assumed. We might note in passing, however, some doubt whether secondary assumption of risk had any application to the facts of this case. Both parties, however, asked for the instruction.

Although no one raises the point, we might comment on the manner in which the two kinds of assumption of risk were submitted to the jury. The first special verdict question read, "Was the Defendant negligent on April 12, 1982?" With respect to the instruction on primary assumption of risk, the jury was then told, "[I]f you find that the accident on April 12, 1982 arose from a risk inherent in the activity of skating and well-known to plaintiff Vera L. Wagner, then you must answer the question 'No.' " The jury was also instructed on defendant's duty of care to keep its premises safe. Thus the first special verdict question was required to do double duty, i.e., if the jury did not find Mrs. Wagner's fall due to an inherent skating risk, it could still answer the question "no" if it found defendant had used reasonable care to keep its premises safe. The jury answered the question "No," and under the evidence could have done so. Another way of submitting the case might have been to have the first question read, "Did plaintiff assume an inherent risk of roller-skating in her accident of April 12, 1982?" The jury could then be told if it answered the question "yes," it need go no further; if it answered "no," it should proceed with the remaining questions, beginning with, "Was the defendant negligent?"

II.

Plaintiffs next contend they are entitled to a new trial because of erroneous trial court...