Assumption of Risk used to defend against claim for injury from snow tubing in MinnesotaPosted: February 9, 2015
Court in its ruling referred to the language on the lift ticket as additional proof that plaintiff had knowledge of the risk.
State: Minnesota, Court of Appeals of Minnesota
Plaintiff: Donya L. Dawson
Defendant: Afton Alps Recreation Area
Plaintiff Claims: Negligence
Defendant Defenses: Assumption of Risk
Holding: for the Defendant
The plaintiff went tubing at the defendant’s property. She failed to stop and collided with a fence at the end of the run. She had been tubing before in the past couple of years. She purchased a ticket to tube but did not read the disclaimer language on the back of the ticket before she affixed it to her jacket.
The language on the lift ticket was quite extensive and outlined the risks of tubing.
The plaintiff could see the fence which was behind a snow barrier when she was standing at the top of the tubing run. The plaintiff tubed for about 1.5 hours when she linked her tube with her boyfriends. At the end of the run the plaintiff “flipped out of her tube” hitting the fence injuring her leg.
The plaintiff sued, and the trial court granted the defendant’s motion for summary judgment stating the plaintiff’s claims were barred by the doctrine of primary assumption of the risk.
Analysis: making sense of the law based on these facts.
Primary assumption of the risk is a complete bar to a recovery by a plaintiff. Under Minnesota law, primary assumption of the risk is defined as:
Primary assumption of the risk arises when parties have voluntarily entered a relationship in which plaintiff assumes well-known, incidental risks. The defendant has no duty to protect the plaintiff from the well-known, incidental risks assumed, and the defendant is not negligent if any injury to the plaintiff arises from an incidental risk . . . .
In primary assumption of the risk, by voluntarily entering into a situation where the defendant’s negligence is obvious, by his conduct, the plaintiff consents to the defendant’s negligence and agrees to undertake to look out for himself and relieve the defendant of the duty.
The court also stated that in Minnesota for a person to assume the risk, they must:
The application of primary assumption of the risk requires that a person who voluntarily takes the risk (1) knows of the risk, (2) appreciates the risk, and (3) has a chance to avoid the risk.”
The knowledge required when knowing the risk is actual knowledge of the risk. That means the plaintiff could not be held to know the risk of tubing and hitting the fence if she had not seen the fence. Actual knowledge that there was a fence at the end of the run is required, not just the knowledge that you can be hurt tubing.
The court then broke down the requirements and discussed each component of the steps necessary to prove assumption of the risk. The first is, was there a duty of care owed by the defendant to the plaintiff. Under Minnesota law, a person operating a place of amusement owes a duty to make the amusement reasonable safe.
(holding that “[a] private person operating a place of public amusement is under an affirmative duty to make it reasonably safe for his patrons”). “But the landowner’s duty to entrants does not include situations where the risk of harm is obvious or known to the plaintiff, unless the landowner should anticipate the harm despite the obviousness of the risk.
The court found that the plaintiff had the opportunity to discover the risks of tubing, knew about those risks thus she accepted the risks of tubing.
Dawson wore a release ticket on her jacket that stated that snowtubing can be hazardous, and by using the ticket to snowtube at Afton Alps, she recognized and accepted all dangers “whether they are marked or unmarked” and “assume[d] the burden” of snowtubing “under control at all times.
Next the court looked at whether the plaintiff had knowledge and appreciated of the risk. Knowledge must be “Actual knowledge of a sport’s risks may be inferred from experience in the sport.”
The plaintiff argued she did not know she could be hurt hitting the fence.
The court basically did not buy it. The plaintiff knew she could be injured if she hit other objects or other tubers. The plaintiff knew the hill was icy that night and knew she was unable to control the tube as it went down the hill. The plaintiff knew the activity was not safe and wore a ticket that stated it was not safe.
The court concluded that if the plaintiff wanted to avoid the risks, she could have not gone tubing that evening.
So Now What?
I found this statement in the decision to be quite interesting. “Snowtubing is a sport, like skiing, in which “participants travel down slippery hills at high speed with limited ability to stop or turn.” This might be interesting and provide help either direction in a skiing case in Minnesota.
Assumption of the risk is the second defense available to most outdoor recreation providers. However, proving assumption of the risk is difficult. Here it was a lot easier because the plaintiff had gone tubing before and had been tubing for an hour and half the nigh to the incident as well as saw the risk before encountering it.
Keep track of who visits your operation. Repeat visitors may tell you of the dozens of times they have stopped by in the past and then on the stand say it was a first time for them. Assumption of the risk is hard to prove without prior experience, videos or proof the persons assumed the risk in writing.
What do you think? Leave a comment.
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By Recreation Law Recemail@example.comJames H. Moss
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