Wagner v. Thomas J. Obert Enterprises

• Decision Date: 25 March 1986
• Docket Number: No. C1-85-1645,C1-85-1645
• Citation: 384 N.W.2d 477
• Parties: Vera L. WAGNER, et al., Appellants, v. THOMAS J. OBERT ENTERPRISES, Respondent.
• Court: Minnesota Court of Appeals

Page 477

384 N.W.2d 477

Vera L. WAGNER, et al., Appellants, v. THOMAS J. OBERT ENTERPRISES, Respondent.

No. C1-85-1645.

Court of Appeals of Minnesota.

March 25, 1986.

Review Granted May 29, 1986.

Syllabus by the Court

1. The trial court erred in instructing the jury on primary assumption of risk and abused its discretion in admitting into evidence signs posted on respondent's premises disclaiming liability.

2. The trial court erred in admitting into evidence an accident report.

Austin D. Ditzler, Castor, Ditzler, Klukas & Scherer, Chartered, Minneapolis, for appellants.

William M. Fishman, Schermer, Schwappach, Borkon & Ramstead, Ltd., Minneapolis, for respondent.

Heard, considered and decided by the court en banc, consisting of POPOVICH, C.J., and FOLEY, WOZNIAK, LANSING, HUSPENI, FORSBERG and LESLIE, JJ.

OPINION

LESLIE, Judge.

Appellants Vera Wagner and Howard Wagner brought an action against respondent Thomas J. Obert Enterprises for injuries Vera Wagner sustained when she fell at a roller-skating rink owned and operated by respondent. The jury returned a verdict in favor of respondent, and the Wagners appeal from the trial court's denial of their motion for judgment notwithstanding the verdict or, in the alternative, a new trial. We reverse and remand for new trial.

FACTS

On April 12, 1982, Vera Wagner went roller-skating with her daughter and grandchildren at The Great Skate, a roller-skating rink in Spring Lake Park, Minnesota, which is owned and operated by respondent. On that date, there were approximately 300 to 350 rink patrons, mostly children.

The skating rink is an oblong area with a hardwood floor and a surrounding wall which is three and one-half feet high. There are three exits from the rink; each exit is six feet wide. The exits are simply breaks in the wall. The rink is one-half inch higher than the carpeted area that surrounds the rink. A metal plate connects the carpeted area and the rink floor at each exit. The metal plate is twelve inches wide and extends across the entire exit.

The accident which gives rise to this action occurred after Wagner had been at the rink for about two hours. During the two hours, Wagner entered and left the rink through the exits at least three times. When Wagner passed through an exit, she testified that she used the surrounding wall for support and stepped over the metal plate.

Wagner testified that at the end of one skating session, the program was changed and a "couples only" skate was announced. She testified that she skated towards the nearest exit, which was filled with children. As she approached the exit, children were pushing and shoving so that she was forced into the middle of the passageway where she could not use the wall for support. Wagner claimed that there were no rink attendants nearby to control or facilitate the traffic flow, and that the lights had been dimmed, making it difficult for her to see the metal plate. She testified that she attempted to step over the plate, but instead, she stepped directly on it, her right foot slipped, and she fell and fractured her right ankle.

Immediately after the accident, the manager of the skating rink filled out an accident report. This report was admitted into evidence over appellants' objection. The manager indicated as follows in the report:

[Wagner] Tried To Avoid a young child at the 1st Exit, slipped and lost her balance right outside of the exit.

The manager testified that Wagner gave him this description of the accident while she was lying on the rink waiting for the ambulance immediately after the accident.

Vera Wagner claims that as a result of the accident, she incurred hospital and medical expenses in excess of $6,000, missed several months of work, and was forced to leave her full time job. Her ankle was set in a cast for several months. Dr. Carl Casper, Wagner's attending physician, testified that she suffers from arthritis and has a fifteen to twenty percent permanent partial disability in the ankle.

At trial, Wagner's medical records were admitted into evidence. Dr. Casper noted as follows in his hospital admission report:

The patient states that she was at a roller rink. Had her skates on and was standing. She was concerned about a child on the track when she lost her balance and fell * * *.

Appellants moved in limine to exclude this reference, which the trial court denied prior to trial.

Also admitted into evidence were "skate at your own risk" signs, which are posted at the window where patrons purchase skating tickets and at various other places around the rink. The signs state as follows:

Because of the normal risk of maintaining balance on skates and the probability of occasional contact between skaters, accidents can and do happen. You must voluntarily assume the risk of injury when you skate.

There was expert testimony at trial regarding the design and maintenance of the exit ramps and of the lighting fixtures. Appellants' expert, an engineer, testified that the metal ramp was defective because at the time of its installation, the gauge of metal was insufficient to support the weight of the skaters and the ramp was not braced or supported. He stated that this resulted in a concave dish, making it unlikely that a skater could recover balance once the skater began slipping on the ramp. Appellants' light expert testified that the lighting fixtures were dirty and improperly maintained and did not provide a safe pattern of movement for rink patrons. Respondent's expert, an architect, testified that the metal ramp was not defective or unreasonably dangerous.

The trial court submitted instructions and a special verdict form to the jury regarding both primary and secondary assumption of risk. The result was a verdict for respondent. The jury found Wagner one hundred percent negligent. In response to the damages question, the jury calculated appellants' damages at zero.

ISSUES

1. Did the trial court err in instructing the jury on primary assumption of risk?

2. Did the trial court err in admitting into evidence the accident report and medical records?

ANALYSIS

I.

Appellants claim that the trial court erred in instructing the jury on primary assumption of risk. They argue that only an instruction on secondary assumption of risk was appropriate. The trial court gave the jury the following instruction regarding primary assumption of risk:

INHERENT RISK OF SKATING

In the case of a paid public amusement such as a skating rink, the patron of the rink accepts those risks which are well-known and inherent aspects of the activity. The proprietor of the rink has no duty to protect the patron with regard to such inherent risks, and if the accident arises from a risk which is inherent and well-known to the plaintiff, then the proprietor is not negligent.

In answering Question 1 [Was the Defendant negligent on April 12, 1982?], if 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 instruction on secondary assumption of risk read as follows:

ASSUMPTION OF RISK

In deciding whether plaintiff Vera L. Wagner was negligent, you should consider whether she assumed the risk of an accident. Assumption of risk is voluntarily placing oneself in a position to chance known hazards. To find that plaintiff Vera L. Wagner assumed the risk you must find:

1. That she had knowledge of the risk.

2. That she appreciated the risk.

3. That she had a choice to avoid the risk or chance it and voluntarily chose to chance it.

Assumption of risk has two viable and distinct concepts. In Springrose v. Willmore, 292 Minn. 23, 24, 192 N.W.2d 826, 827 (1971), the supreme court articulated the distinctions between primary and secondary assumption of risk.

Primary assumption of risk, express or implied, relates to the initial issue of whether a defendant was negligent at all--that is, whether the defendant had any duty to protect the plaintiff from a risk of harm.

See also Armstrong v. Mailand, 284 N.W.2d 343, 348-49 (Minn.1979) (recognizing primary assumption of risk as a viable doctrine). Secondary assumption of risk is a question of comparative negligence. Springrose, 292 Minn. at 24, 192 N.W.2d at 827.

Primary assumption of risk is applicable where parties have voluntarily entered a relationship in which the plaintiff assumes well-known, incidental risks. Olson v. Hansen, 299 Minn. 39, 44, 216 N.W.2d 124, 127 (1974). As to those risks, the defendant does not have a duty to protect the plaintiff. Id. If the plaintiff's injuries do not arise from such a risk, however, the defendant has a duty and may be found negligent.

The Springrose court noted that the classes of cases involving an implied primary assumption of risk are "not many." Springrose, 292 Minn. at 24, 192 N.W.2d at 827. The doctrine may be applicable to the situation of a baseball club owner who offers spectators a choice between screened and unscreened seats. See Aldes v. St. Paul Ball Club, Inc., 251 Minn. 440, 88 N.W.2d 94 (1958). If a spectator chooses to sit in an unscreened seat and is struck and injured by a ball, the spectator would generally not be entitled to recover from the club owner. Id. at 441-42, 88 N.W.2d at 96. In such a situation, there is no duty on the part of the club owner, assuming the owner provided a sufficient number of screened seats. See Swagger v. City of Crystal, 379 N.W.2d 183 (Minn.Ct.App.1985), pet. for rev. denied, (Minn. Feb. 19, 1986) (affirming trial court's JNOV on basis of primary assumption of risk against spectator injured at softball game where there was some protected seating). Even where the doctrine is applicable, however, a person assumes only those risks that are inherent in the activity and does not assume every risk arising from the negligence of others. Moe v. Steenberg, 275 Minn. 448, 450-51, 147 N.W.2d 587, 589 (1966).

Parties are entitled to...