Soderberg, v. Anderson, 906 N.W.2d 889, 2018 Minn. App. LEXIS 47 (Minn. Ct. App., Jan. 16, 2018)

Soderberg, v. Anderson, 906 N.W.2d 889, 2018 Minn. App. LEXIS 47 (Minn. Ct. App., Jan. 16, 2018)

Julie A. Soderberg, Respondent, v. Lucas Anderson, Appellant.

No. A17-0827

Supreme Court of Minnesota

January 23, 2019

Court of Appeals Office of Appellate Courts

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.


The doctrine of implied primary assumption of risk does not apply to a claim in negligence for injuries arising out of recreational downhill skiing and snowboarding.




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.


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.


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, 192 N.W.2d 826, 827-28 (Minn. 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, 216 N.W.2d 124, 127 (Minn. 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, 142 N.W. 706 (Minn. 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, 240 N.W. 903, 904 (Minn. 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., 88 N.W.2d 94 (Minn. 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, 113 N.W.2d 9, 12-13 (Minn. 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, 29 N.W.2d 453, 456-57 (Minn. 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, 147 N.W.2d 587 (Minn. 1966), in which one ice skater sued another for injuries arising out of a collision on the ice. Id. at 588. We held that the plaintiff” ‘assumed risks that were inherent in the sport or amusement in which she was engaged, such as falls and collisions with other skaters. . . .'” Id. at 589 (quoting Schamel v. St. Louis Arena Corp., 324 S.W.2d 375, 378 (Mo.Ct.App. 1959)). But we excluded from the doctrine skating that is “so reckless or inept as to be wholly unanticipated.” Id. Along the same lines, in Wagner v. Thomas J. Obert Enterprises, 396 N.W.2d 223 (Minn. 1986), we counted roller skating among other “inherently dangerous sporting events” in which participants assume the risks inherent in the sport. Id. at 226. We made clear, however, that “[n]egligent maintenance and supervision of a skating rink are not inherent risks of the sport itself.” Id.

Recreational snowmobiling, though, is a different matter. We have consistently declined to apply the doctrine to bar claims arising out of collisions between snowmobilers. In Olson v. Hansen, 216 N.W.2d 124 (Minn. 1974), we observed that, although snowmobiles can tip or roll, such a hazard “is one that can be successfully avoided. A snowmobile, carefully operated, is no more hazardous than an automobile, train, or taxi.” Id. at 128. Similarly, we “refused to relieve [a] defendant of the duty to operate his snowmobile reasonably and analyzed the defendant’s conduct under the doctrine of secondary assumption of risk.” Daly v. McFarland, 812 N.W.2d, 113, 120-21 (Minn. 2012) (citing Carpenter v. Mattison, 219 N.W.2d 625, 629 (Minn. 1974)). In 2012, we reaffirmed that snowmobiling is not an inherently dangerous sporting activity. Id. at 121-22.

The closest we have come to discussing the application of implied primary assumption of risk to recreational downhill skiing was in Seidl v. Trollhaugen, Inc., 232 N.W.2d 236 (Minn. 1975). That case involved a claim by a ski area patron who had been struck by a ski instructor. Id. at 239-40. The cause of action arose before Springrose. Id. at 240 n.1. We did not analyze the question of whether the doctrine of primary assumption of risk applied to recreational skiing and snowboarding. See id. at 240 & n.1. Instead, we affirmed the district court’s decision not to submit to the jury, for lack of evidence, the issue of secondary assumption of risk. Id. at 240-41.

With this case law in mind, we turn now to the question of whether to follow the example of the court of appeals in Peterson, 733 N.W.2d 790, and extend the doctrine of implied primary assumption of risk to recreational downhill skiing and snowboarding.[3] To do so would relieve skiers and snowboarders (collectively, “skiers”) of any duty of care owed to others while engaged in their activity. We decide not to do so, for three reasons.

First, although there is no question that skiers can and do collide with one another, the record does not substantiate that injurious collisions between skiers are so frequent and damaging that they must be considered inherent in the sport. As the National Ski Areas Association has recognized through its seven-point Responsibility Code (adopted by Spirit Mountain), skiing and snowboarding contain “elements of risk,” but “common sense and personal awareness can help reduce” them. This recognition counsels against a flat no-duty rule that would benefit those who ski negligently. As the Connecticut Supreme Court has explained, “If skiers act in accordance with the rules and general practices of the sport, at reasonable speeds, and with a proper lookout for others on the slopes, the vast majority of contact between participants will be eliminated. The same may not be said of soccer, football, basketball and hockey . . . .” Jagger v. Mohawk Mountain Ski Area, Inc., 849 A.2d 813, 832 (Conn. 2004). We relied on similar reasoning in our line of recreational snowmobiling cases, in which we noted that the hazard “is one that can be successfully avoided.” Olson, 216 N.W.2d at 128.

Second, even though today we do not overrule our precedent regarding flying sports objects and slippery rinks, we are loathe to extend the doctrine of implied primary assumption to yet another activity. “The doctrine of assumption of risk is not favored, and should be limited rather than extended.” Suess v. Arrowhead Steel Prods. Co., 230 N.W. 125, 126 (Minn. 1930). Our most recent case considering implied primary assumption of risk, Daly, reflects that reluctance.[4] See 812 N.W.2d at 119-22. Similarly, the nationwide trend has been toward the abolition or limitation of the common-law doctrine of implied primary assumption of risk. See Leavitt v. Gillaspie, 443 P.2d 61, 68 (Alaska 1968); 1800 Ocotillo, LLC v. WLB Grp., Inc., 196 P.3d 222, 226-28 (Ariz. 2008); Dawson v. Fulton, 745 S.W.2d 617, 619 (Ark. 1988); P.W. v. Children’s Hosp. Colo., 364 P.3d 891, 895-99 (Colo. 2016); Blackburn v. Dorta, 348 So.2d 287, 291-92 (Fla. 1977); Salinas v. Vierstra, 695 P.2d 369, 374-75 (Idaho 1985); Pfenning v. Lineman, 947 N.E.2d 392, 403-04 (Ind. 2011); Simmons v. Porter, 312 P.3d 345, 354-55 (Kan. 2013); Murray v. Ramada Inns, Inc., 521 So.2d 1123, 1132-33 (La. 1988); Wilson v. Gordon, 354 A.2d 398, 401-02 (Me. 1976); Abernathy v. Eline Oil Field Servs., Inc., 650 P.2d 772, 775-76 (Mont. 1982) (holding that “the doctrine of implied assumption of risk is no longer applicable in Montana”); McGrath v. Am. Cyanamid Co., 196 A.2d 238, 239-41 (N.J. 1963); Iglehart v. Iglehart, 670 N.W.2d 343, 349-50 (N.D. 2003); Christensen v. Murphy, 678 P.2d 1210, 1216-18 (Or. 1984); Perez v. McConkey, 872 S.W.2d 897, 905-06 (Tenn. 1994); Nelson v. Great E. Resort Mgmt., Inc., 574 S.E.2d 277, 280-82 (Va. 2003); King v. Kayak Mfg. Corp., 387 S.E.2d 511, 517-19 ( W.Va. 1989) (modifying the defense “to bring it in line with the doctrine of comparative contributory negligence”); Polsky v. Levine, 243 N.W.2d 503, 505-06 (Wis. 1976); O’Donnell v. City of Casper, 696 P.2d 1278, 1281-84 (Wyo. 1985).

Third, we are not persuaded that, if we do not apply the doctrine of implied primary assumption of risk to recreational downhill skiing and snowboarding, Minnesotans will be deterred from vigorously participating and ski operators will be adversely affected. No evidence in the record suggests that the prospect of negligent patrons being held liable chills participation in skiing and snowboarding. Logically, it seems just as likely that the prospect of an absolute bar to recovery could deter the participation of prospective victims of negligent patrons.[5]

Although we decline to further extend the doctrine of implied primary assumption of risk, we also decline to overrule our precedent by abolishing the doctrine in its entirety. We ordered briefing on the question of abolition, and we appreciate the well-researched submissions and arguments of the parties and amici. But, as we said in Daly, in which we declined to extend the doctrine to snowmobiling,” ‘[w]e are extremely reluctant to overrule our precedent . . . . ‘” 812 N.W.2d at 121 (quoting State v. Martin, 773 N.W.2d 89, 98 (Minn. 2009)). And we still see a role-limited as it may be-for this common-law doctrine in cases involving the sports to which it has been applied.

Because we decline to extend the doctrine of implied primary assumption of risk to recreational downhill skiing and snowboarding, we need not reach the question of whether the court of appeals, which assumed the doctrine applied, [6] erroneously concluded that genuine issues of material fact preclude summary judgment. Instead, we affirm the court of appeals’ disposition-reversal and remand-on a different ground.


For the foregoing reasons, we affirm the decision of the court of appeals.


ANDERSON, J., took no part in the consideration or decision of this case.



[1] Riding a snowboard “regular” means that the rider’s left foot is in the front of the snowboard, the rider’s right foot is in the back, and the rider is facing right. Riding “goofy” means that the rider’s right foot is in the front, the rider’s left foot is in the back, and the rider is facing left.

[2] In Diker v. City of St. Louis Park, 130 N.W.2d 113, 118 (Minn. 1964), and citing Modec, we stated the general rule of assumption of risk in hockey, but did not apply the rule to “a boy only 10 years of age.”

[3] In Peterson, the court of appeals affirmed the decision of the district court, which granted summary judgment to a defendant on the plaintiff’s negligence claim stemming from a collision between the two on a ski hill. 733 N.W.2d at 791. Based on other decisions in which “courts have applied primary assumption of the risk to actions between sporting participants,” the court of appeals held that “primary assumption of the risk applies to actions between skiers who knew and appreciated the risk of collision.” Id. at 792-93.

[4] That reluctance is also reflected in another case decided today, Henson v. Uptown Drink, LLC, N.W.2d (Minn. Jan. 23, 2019), in which we decline to extend the doctrine of implied primary assumption of risk to the operation and patronage of bars.

[5] Spirit Mountain (like many ski operators) relies on the doctrine of express primary assumption of risk. It requires patrons to execute forms and wear lift tickets whereby patrons expressly assume all risks of injury and release their legal rights.

[6] Based on our decision here, the court of appeals’ decision in Peterson, 733 N.W.2d 790, holding that implied primary assumption of risk applies to collisions between skiers, is overruled.


Byrne, JR., v. Fords-Clara Barton Boys Baseball League, Inc., 236 N.J. Super. 185; 564 A.2d 1222; 1989 N.J. Super. LEXIS 357

Byrne, JR., v. Fords-Clara Barton Boys Baseball League, Inc., 236 N.J. Super. 185; 564 A.2d 1222; 1989 N.J. Super. LEXIS 357

George C. Byrne, JR., A Minor by his Guardian Ad Litem, Francine Byrne, and Francine Byrne, Individually, Plaintiffs-Appellants, v. Fords-Clara Barton Boys Baseball League, Inc., Defendant, and Dennis Bonk, Defendant-Respondent

No. A-4172-88T2

Superior Court of New Jersey, Appellate Division

236 N.J. Super. 185; 564 A.2d 1222; 1989 N.J. Super. LEXIS 357

September 19, 1989, Argued

October 4, 1989, Decided

COUNSEL: James J. Dunn argued the cause for appellants (Levinson, Axelrod, Wheaton & Grayzel, attorneys; Richard J. Levinson, of counsel; Richard J. Levinson and James J. Dunn, on the brief).

Salvatore P. DiFazio argued the cause for respondent (Golden, Rothschild, Spagnola & DiFazio, attorneys).

JUDGES: Pressler, Long and Landau. The opinion of the court was delivered by Pressler, P.J.A.D.



[*186] [**1223] In evident response to the increasing cost of liability insurance and, in some instances the unavailability of liability insurance, for volunteer athletic coaches, managers and officials of nonprofit sports teams, 1 the Legislature, by L. 1986, c. 13, adopted N.J.S.A. 2A:62A-6, amended by L. 1988, c. 87, which affords those volunteers immunity from tort liability subject to the conditions and exceptions specified therein. This appeal from a summary judgment requires us to construe paragraph (c) of the Act, which conditions the availability of the immunity, to some degree at least, upon the volunteer’s participation in a safety and training program.

1 See, e.g., Legislative Summaries: Sports Law, 10 Seton Hall Legis. J. 332 (1987).

[***2] The facts relevant to the issue before us are not in dispute. In the spring of 1986, plaintiff George C. Byrne, Jr., then 11 years old, was enrolled in the Fords-Clara Barton Baseball League, Inc. The League, while not affiliated with Little League Baseball, Inc., is nevertheless similarly organized, structured and conducted, offering inter-team competitions for similarly aged youngsters. Defendant Dennis Bonk was the coach of the team to which the infant plaintiff was assigned. On May 13, 1986, the day after the effective date of N.J.S.A. 2A:62A-6, Bonk instructed plaintiff to “warm-up” the pitcher. [*187] Although plaintiff was wearing most of the catcher’s special protective gear, he was not, in violation of the League’s rules, wearing a catcher’s mask. During the warm-up, he was struck in the eye by a pitched ball, sustaining the injury which is the gravamen of this complaint. The complaint charged Bonk both with ordinary negligence and with “willful, wanton, reckless and gross” negligence.

Bonk’s motion for summary judgment dismissing the complaint as to him relied on N.J.S.A. 2A:53A-7 (charitable immunity) as well as on N.J.S.A. 2A:62A-6. The trial judge [***3] ruled that N.J.S.A. 2A:53A-7 was inapplicable to the claim against Bonk, as opposed to the League, because of its express exception of “agents or servants” from the immunity it affords. Bonk does not challenge that ruling on this appeal.

With respect to the applicability of N.J.S.A. 2A:62A-6, both plaintiff and this defendant relied on paragraph (c), which prior to its 1988 amendment provided in full as follows:

[HN1] Nothing in this section shall be deemed to grant immunity to any person causing damage by his willful, wanton, or grossly negligent act of commission or omission, nor to any coach, manager, or official who has not participated in a safety orientation and training program established by the league or team with which he is affiliated.

At least for purposes of the summary judgment motion, Bonk conceded that he had never participated in a safety orientation or training program, and the reason he had not was the League’s failure to have established one.

The issue then is whether paragraph (c), as originally adopted, required participation as a condition of immunity only if the league or team had established a safety and training program or if, to the contrary, the [***4] legislative intention was to mandate the establishment of a program as a quid pro quo, as it were, for the immunity, thus granting it only to those volunteers who had actually participated in such a program. [**1224] The trial court judge declined to read the statute as requiring the establishment of a safety and training program for volunteers, concluding therefore that a volunteer who had had no [*188] training in safety because there was no program for him to attend was fully entitled to the statutory immunity. Accordingly, it entered partial summary judgment dismissing the ordinary negligence claims against Bonk. 2 We granted plaintiff’s motion for leave to appeal and now reverse.

2 The trial judge did not rule on the wanton and gross negligence claims, concluding that questions of fact were involved, and defendant did not seek leave to cross-appeal from that determination. It is therefore not before us. See R. 2:5-6(b).

The direct legislative history is both sparse and inconclusive. The bill, A-2398, [***5] which was finally adopted as L. 1986, c. 13, had been first introduced and passed in the Assembly, whose version of paragraph (c) excepted only willful, wanton, or grossly negligent acts. The provision respecting safety and training programs was added by the Senate in its version of the bill, S-1678, which also added paragraphs (d), (e) and (f), all of which further limit and condition the immunity afforded by the Assembly bill. 3 The Statement accompanying the Senate version is not particularly helpful in construing its intention since, in explaining the addition to paragraph (c), it uses exactly the same verbiage as the statutory text.

3 Paragraph (d) makes the immunity inapplicable “to any person causing damage as the result of his negligent operation of a motor vehicle.” Paragraph (e) withholds the immunity from a person “permitting a sport competition or practice to be conducted without supervision.” Paragraph (f) makes clear the Act’s inapplicability to school coaches, managers, and officials.

[***6] We recognize that there is an ambiguity in the manner in which the operative clause of paragraph (c) was drawn. Normally that ambiguity would have required us to determine, without benefit of express legislative explication, whether the general legislative purpose to accord the immunity was meant to prevail over the safety concerns expressed by that paragraph or not. We need not, however, engage in that debate since the Legislature, by its 1988 amendment of paragraph (c), left no doubt that its original intent had been to condition the immunity [*189] upon the volunteer’s actual participation in an appropriate program. 4

4 The trial court apparently did not consider the effect of the 1988 amendment and its legislative history on this interpretation problem of the 1986 Act. Nor did either counsel bring the amendment to the attention of the trial court or this court.

By L. 1988, c. 87, the originally adopted single-section paragraph (c) was replaced by this two-section paragraph (c):

[HN2] (1) Nothing [***7] in this section shall be deemed to grant immunity to any person causing damage by his willful, wanton, or grossly negligent act of commission or omission, nor to any coach, manager, or official who has not participated in a safety orientation and training skills program which program shall include but not be limited to injury prevention and first aid procedures and general coaching concepts.

(2) A coach, manager, or official shall be deemed to have satisfied the requirements of this subsection if the safety orientation and skills training program attended by the person has met the minimum standards established by the Governor’s Council on Physical Fitness and Sports in consultation with the Bureau of Recreation within the Department of Community Affairs, in accordance with rules and regulations adopted pursuant to the “Administrative Procedure Act,” P.L.1968, c. 410 (C. 52:14B-1 et seq.).

The 1988 version does more than define, qualify, and standardize the prescribed safety program. In our view, the text of paragraph (c)(2), in its reference to a volunteer being “deemed to have satisfied the requirements of this subsection” (emphasis added), makes plain that actual program [***8] attendance is the unequivocal prerequisite for entitlement to the immunity. We are further persuaded that this was the legislative intention from the outset.

We base this conclusion first on public policy considerations. We do not believe that in initially prescribing participation in [**1225] a safety program, the Legislature meant to provide a disincentive to the establishment of such programs by charitably organized leagues and teams — and surely a disincentive is implicit in a scheme in which a coach or manager can obtain immunity against ordinary negligence by the simple expedient of the league’s failure to instruct him on matters of safety. Rather, we are convinced that the Legislature, responding to a perceived [*190] insurance crisis, concluded that all of the competing interests involved in the management of and participation in nonprofit athletic organizations could be most reasonably accommodated by encouraging the safety training of volunteer coaches and managers — not discouraging such training — and then protecting trained volunteers from ordinary negligence claims. Thus, the prior training was at the heart of the immunity concept. That being so, we are convinced [***9] that the Legislature never intended that the immunity would attach to an untrained volunteer simply because his league or team chose not to offer appropriate training.

Beyond that, we are also convinced that that construction of the original version of the statute has been expressly confirmed by the Senate Statement accompanying the 1988 amendment. That Statement starts with the observation that the amendment is intended to clarify the manner in which the volunteer coach, manager, or official can satisfy “the training program requirement of the ‘little league liability law,’ P.L.1986, c. 13. . . .” 5 Thus, the Legislature itself thereby described the program referred to in the original Act as mandated rather than optional. The conclusion is, therefore, ineluctable that [HN3] a volunteer coach who has not participated in a prescribed safety program, for whatever reason, is barred from reliance on the statutory immunity.

5 Although the Act by its terms is not limited to the Little League or even to youngsters participating in nonprofit athletic organizations, the Act has been referred to by the Little League nomenclature because it was that context in which it was initially adopted.

[***10] The partial summary judgment dismissing the ordinary negligence counts of the complaint against Dennis Bonk is reversed, and the matter is remanded to the trial court for further proceedings

The Iowa Supreme Court reaffirms a Permission Slip is not a release, but leaves open the argument that releases may stop a minor’s claim for negligence.

City Parks Department sued for injuries of an eight-year-old girl hit by a flying bat at a baseball game field trip.

Sweeney v. City of Bettendorf, 762 N.W.2d 873; 2009 Iowa Sup. LEXIS 26

State: Supreme Court of Iowa

Plaintiff: Tara Sweeney, Individually, and by Cynthia Sweeney, Her Mother and Next Friend

Defendant: City of Bettendorf and Bettendorf Parks and Recreation

Plaintiff Claims: Negligence

Defendant Defenses: Release (Permission Slip), No duty owed,

Holding: Split, the permission slip was not a release however there triable issues to the defense of duty owed

Year: 2009

The city recreation department would take kids on field trips to see minor-league baseball games in other cities. The plaintiff was an eight-year-old girl who loved baseball and her mother. The minor went on several of these field trips in the past. Her mother signed the permission slip and she went off on the trip.

In the past, the participants had sat behind home plate which was protected by netting from flying objects. This time the kids were taken to bleachers along the third baseline. They were told they had to sit there and could not move.

During the game, a player lost his grip on the bat which sailed down the third baseline hitting the girl. The minor had turned to talk to her friend when she was struck. No adults were around at the time.

The plaintiffs sued for negligent. The defendant filed a motion for summary judgment citing a permission slip the mother had signed as a release and that the plaintiff had not shown a breach of duty owed to the injured minor.

The plaintiff’s opposed the motion for summary judgment arguing:

The plaintiffs further argued that even if the permission slip amounted to a valid release, it was fatally flawed because it purported to release only the Department and not the City. Finally, plaintiffs asserted even if the permission slip amounted to an anticipatory release of future claims based on acts or omissions of negligence, statutory and common law public policy prevents a parent from waiving such claims on behalf of a minor child.

The trial court granted the motion for summary judgment based on the permission slip no evidence of a breach of duty. The plaintiff’s appealed.

Summary of the case

The court reviewed several procedural issues and then looked into releases under Iowa law. The court found the permission slip was deficient in many ways.

…the permission slip contains no clear and unequivocal language that would notify a casual reader that by signing the document, a parent would be waiving all claims relating to future acts or omissions of negligence by the City. The language at issue here refers only to “accidents” generally and contains nothing specifically indicating that a parent would be waiving potential claims for the City’s negligence.

Based on the language in the permission slip the court found it could not enforce the release because it was not a release.

Next the court looked at whether being hit by a bat at a baseball game was an inherent risk of being a spectator at a baseball game. In Iowa this is called the inherent risk doctrine. (This doctrine is very similar to a secondary assumption of risk argument.) What created a difference in this issue, is the issue of whether a flying bat is an inherent risk, is a defense of the baseball team/promoter/owner or field rather than a city recreation department field trip.

In the majority of cases, spectators sitting outside protective netting at baseball stadiums have been unable to recover from owners or operators for injuries related to errant bats and balls on the ground that such injuries were an “inherent risk” of attending the game.

Regardless of whether the approach is characterized as involving inherent risk or a limited duty, courts applying the doctrine have held that the owner or operator of a baseball stadium is not liable for injury to spectators from flying bats and balls if the owner or operator provided screened seating sufficient for spectators who may be reasonably anticipated to desire such protection and if the most dangerous areas of the stands, ordinarily the area behind home plate, were so protected.

Because the inherent risk was not one of a field trip, the court found differently than if the defense was argued by the owner of the field. The issue was not one of attending a sporting event invited by the event, but supervision of a minor child by a recreation department.

A negligent supervision case is fundamentally different than a case involving premises liability. The eight-year-old child in this case made no choice, but instead sat where she was told by the Department. The plaintiffs further claim that there was inadequate adult supervision where the child was seated. The alleged negligence in this case does not relate to the instrumentality of the injury, but instead focuses on the proper care and supervision of children in an admittedly risky environment.

As a negligent supervision case, the recreation department owed a different type and a higher degree of care to the minor.

Viewed as a negligent supervision case, the City had a duty to act reasonably, under all the facts and circumstances, to protect the children’s safety at the ball park. The gist of the plaintiffs’ claim is that a substantial cause of the injury was the supervisors’ decision to allow the children, who cannot be expected to be vigilant at all times during a baseball game, to be seated in what a jury could conclude was an unreasonably hazardous location behind third base instead of behind the safety of protective netting.

Add to this the change in sitting and the restrictions the adults placed on where the minors could sit and the court found there was a clear issue as to liability.

The third issue reviewed by the court was whether the recreation department failed to provide an adequate level of care to the minor. Here the court agreed with the recreation department. Not because the level of care was sufficient, but because the plaintiff could not prove the level of care was inadequate.

There was a dissent in this case, which argued that the risk of being hit by a bat was an inherent risk of attending a baseball game and that the permission slip was a valid release.

The case was then sent back for trial on the negligence claims of the plaintiff.

So Now What?

What is of interest is the single sentence that argues a release signed by an adult stops the claims of a minor. It was argued by the plaintiff’s as one of the ways the permission slip was invalid. However, the court did not look at the issue in its review and decision in the case.

The court’s review was quite clear on releases. If you do not have the proper language in your release, you are only killing trees. It was a stretch, and a good one, by the recreation department to argue that a document intended to prove the minor could be on a field trip was also a release of claims.

Releases are different legal documents and require specific language.

You also need to remember that defenses that are available to a lawsuit are not just based on the activity, like baseball, but the relationship of the parties to the activity. If the minor child had attended the baseball game on her own or with her parents, the Iowa Inherent Risk Doctrine would have probably prevented a recovery. However, because the duty owed was not from a baseball game to a spectator, but from a recreation department to a minor in its care, the inherent risk defense was not available.


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Moore v. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299

Moore v. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299

Terry Moore, as father and natural guardian for minor, Thaddeus J. Moore, Appellant, vs. Minnesota Baseball Instructional School, Respondent.



2009 Minn. App. Unpub. LEXIS 299

March 31, 2009, Filed



Hennepin County District Court File No. 27-CV-07-11022.


COUNSEL: For Appellant: Wilbur W. Fluegel, Fluegel Law Office, Minneapolis, MN; and Stuart L. Goldenberg, Goldenberg & Johnson, Minneapolis, MN.

For Respondent: Marianne Settano, Theresa Bofferding, Law Office of Settano & Van Cleave, Bloomington, MN.

JUDGES: Considered and decided by Worke, Presiding Judge; Hudson, Judge; and Connolly, Judge.





Appellant Terry Moore initiated this negligence action in district court on behalf of his minor son, T.J., following an incident in which T.J.’s eye was permanently injured while T.J. was participating in a baseball camp operated by respondent Minnesota Baseball Instructional School. The district court granted summary judgment to respondent. Because appellant had signed a valid agreement releasing respondent from liability for T.J.’s injury prior to enrolling in the camp, we affirm.


Respondent operates summer baseball-instructional camps for students of varying ages. T.J. participated in one of respondent’s camps during June 2005. The camp was located on the grounds of the University of Minnesota. On the camp’s final day, students walked from Siebert baseball [*2] stadium to Sanford residence hall to have lunch. When the students were done eating lunch, they were given the option of going to a television lounge in the residence hall or going to the residence hall’s courtyard. T.J. and a number of other students went to the courtyard to play. While in the courtyard, students began throwing woodchips at each other. T.J. sustained a permanent eye injury when he was struck by a woodchip thrown by another student.

After T.J.’s father initiated suit, respondent moved the district court for summary judgment, arguing that an exculpatory clause contained in the camp’s registration materials insulated it from liability. The district court agreed with respondent and granted summary judgment. Appellant contends that the district court erred because there are material facts in dispute. Specifically, appellant argues that there are fact issues as to whether T.J.’s mother signed the emergency medical information form in question and whether the form contained the exculpatory clause as it is described by respondent. Appellant also contends that, if it does exist, then the district court erred in interpreting and upholding the exculpatory clause in the release. [*3] This appeal follows.


[HN1] “On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the [district] court[] erred in [its] application of the law.” State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). “[T]here is no genuine issue of material fact for trial when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.” DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).

I. It is not in dispute that T.J.’s mother signed the assumption-of-risk-and-release agreement.

Respondent was unable to produce the assumption-of-risk agreement and release signed by T.J.’s mother. Appellant contends that, because of this, there is a material factual dispute about whether T.J.’s mother signed the agreement.

Lee Swanson is respondent’s director. In his deposition, Swanson was asked about the method through which participants sign up for respondent’s camp. He explained that parents have the option of enrolling their children [*4] online, and that T.J.’s mother used this process to enroll her son. In order to enroll her son, T.J.’s mother first went to the camp’s website and filled out the enrollment form online. After filling out the form online, T.J.’s mother clicked on a link that submitted the enrollment form. Respondent has been able to produce a document generated from the camp’s archives as confirmation that T.J.’s mother filled out the enrollment form. Swanson testified that this document was based on information that is sent to the camp electronically upon the completion of a student’s enrollment form. Swanson testified that the camp does not receive the actual completed enrollment form.

Respondent has also produced a spreadsheet containing the roster of students who participated in the June 2005 camp that lists T.J. as a camp participant. Respondents were unable to produce a copy of the online enrollment form that T.J.’s mother filled out; however, they were able to produce a 2007 version of the enrollment form, and Swanson testified it was the same as the 2005 version that T.J.’s mother would have filled out:

ATTORNEY: I’m showing you what has been purported to in your interrogatory answers to be the [*5] summer camp enrollment [form] of ’07 which was the same — there’s a little note that says same as ’05; is that correct?

SWANSON: That’s correct.

ATTORNEY: That’s Exhibit Number 5? 1

SWANSON: Correct.

ATTORNEY: Do you recall anything different about this particular enrollment form from the one that existed in ’05?

SWANSON: That is the same.

1 Exhibit 5 is a copy of the 2007 summer enrollment form.

Swanson was next questioned about an emergency medical form that a student’s parent must sign before that student is allowed to participate in the camp:

ATTORNEY: This is Exhibit Number 7, can you identify what that is for us, please?

SWANSON: This is our emergency medical information form that a parent or guardian has to fill out, it gives specific information about primary contacts, about medical histories, about emergency contacts, it also gives information provided for policy numbers, insurance in case we have to ship the kid to the emergency room for some problem. Also it has a Recognition and Assumption of Risk Agreement that the parent or guardian has to sign along with the camper’s signature.

ATTORNEY: Is this something that’s on-line or is this sent to the parents to sign?

SWANSON: It is available [*6] on-line, but every kid that registers gets an e-mail sent, an attachment with this.

ATTORNEY: Do you have a specific copy of this that the Moores actually signed?

SWANSON: We were not able to retrieve it. Generally I have to destroy these because of valuable information or personal information on these.


. . . .

ATTORNEY: Do you know for certain that this form was in place as of June of ’05?


ATTORNEY: What happens if you don’t get a copy of this form

SWANSON: Kid cannot participate in camp.

ATTORNEY: So it is fair to say that your testimony is going to be that even though you couldn’t find a copy of this if he showed up to camp without his parents signing it he would not be allowed to participant

SWANSON: Correct.

ATTORNEY: So is it fair to say that you can make that assumption then that they did sign this agreement?


ATTORNEY Okay. That’s Exhibit Number Seven?


(Emphasis added.)

Exhibit seven contains the assumption-of-risk agreement that is at the heart of this appeal. It, under the headline “RECOGNITION & ASSUMPTION OF RISK AGREEMENT,” reads:

I, the undersigned parent/legal guardian of , authorize said child’s participation in the Minnesota [*7] Baseball Instructional School (MBIS) camp. It is my understanding that participation in the activities that make up MBIS is not without some inherent risk of injury. As such, in consideration of my child’s participation in the MBIS camp, I hereby release, waive, discharge, and covenant not to sue the MBIS and any and all Directors, Officers, and Instructors and the Regents of the University of Minnesota and its Directors, Officers, or Employee from any and all liability, claims, demands, action, and causes of action whatsoever arising out of or related to any loss, damage, or injury including death, that may be sustained by my child, whether caused by the negligence of the releases, or otherwise while participating in such activity, or while in, or upon the premises where the activity is being conducted.

The following colloquy occurred when respondent’s attorney questioned T.J.’s mother about the assumption-of-risk agreement:

QUESTION: Okay. I’m showing you what’s been marked Deposition Exhibit No. 2. Do you recognize that document?

ANSWER: I don’t recall it specifically.

QUESTION: Do you recall that that is an emergency medical information — or should I say — let me rephrase that. Do [*8] you recall filling out a health information form and emergency medical form for T.J. to attend the Minnesota Baseball Instructional School in either 2004 or 2005?

ANSWER: I don’t recall.

QUESTION: Okay. Do you deny having filled out an emergency form for T.J.?

ANSWER: I must have.

QUESTION: Okay. I’m going to ask you to look at both pages of that form and see if you recognize that form.

ANSWER: I don’t recall the form.

QUESTION: Okay. I’d like you specifically to read the second page of the form, recognition and assumption of risk agreement, and I’d like you to read that to yourself and tell me if you recognize that.

ANSWER: I don’t recall the form.

QUESTION: Do you deny having filled it out

ANSWER: I do not deny it, I just don’t recall.

(Emphasis added.)

Based on the above deposition testimony, there is no material fact in dispute that T.J.’s mother signed the emergency medical form containing the assumption of risk agreement. Swanson testified that the 2007 enrollment form he produced was the same as the 2005 version that T.J.’s mother would have used. He was able to produce a document generated from archived enrollment data that indicates T.J. enrolled in the camp. He was also able to produce [*9] a roster, containing T.J.’s name, of children who participated in the 2005 camp. Finally, he produced a copy of an emergency medical form that is e-mailed to parents upon completion of the enrollment form. He testified that this was the same version of the emergency medical form that was in place in 2005. He testified that a student would not be allowed to participate in the camp unless the emergency medical form was signed and returned to respondent. The emergency medical form contained the assumption-of-risk agreement with the release language.

T.J.’s mother does not deny filling out the emergency medical form containing the assumption-of-risk agreement. She only states that she does not recall filling it out but admits that she must have filled it out. Because she does not claim that she did not fill out the emergency medical form, and because Swanson testified that she did fill out the form, it is simply not in dispute that T.J.’s mother filled out the form. Appellant argues, in essence, that the district court made a credibility determination in giving greater weight to Swanson’s testimony than to T.J.’s mother. This is not the case because Swanson’s testimony and T.J.’s mother’s [*10] testimony are not in conflict. Swanson testified that T.J.’s mother filled out the emergency medical form. T.J.’s mother’s testimony does not contradict Swanson’s testimony; she only states that she does not remember filling it out, but that she must have filled it out, and that she does not deny doing so.

Finally, the text of the assumption-of-risk agreement is not in dispute. Swanson produced the 2007 version of the agreement and testified that the 2007 version is the same as the 2005 version. Appellant disputes this in his brief, but points to no evidence that contradicts this testimony. T.J.’s father did not present any evidence that the emergency medical form produced by respondent was different from the 2005 agreement that she “must have” filled out. In sum, there are no material facts in dispute. The district court did not make any credibility determinations and did not weigh the evidence. It simply applied the law to undisputed facts.

II. The exculpatory clause releases respondent from liability for any damage resulting from T.J.’s injury.

[HN2] “The interpretation of a contract is a question of law if no ambiguity exists, but if ambiguous, it is a question of fact . . . .” City of Va. v. Northland Office Props. Ltd. P’ship, 465 N.W.2d 424, 427 (Minn. App. 1991), [*11] review denied (Minn. Apr. 18, 1991).

[HN3] It is settled Minnesota law that, under certain circumstances, “parties to a contract may, without violation of public policy, protect themselves against liability resulting from their own negligence.” Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 922-23 (Minn. 1982). The “public interest in freedom of contract is preserved by recognizing [release and exculpatory] clauses as valid.” Id. at 923. (citing N. Pac. Ry. v. Thornton Bros., 206 Minn. 193, 196, 288 N.W. 226, 227 (1939)). But releases of liability are not favored by the law and are strictly construed against the benefited party. Id. “If the clause is either ambiguous in scope or purports to release the benefited party from liability for intentional, willful or wanton acts, it will not be enforced.” Id.

Appellant contends the district court erred in interpreting the exculpatory clause contained in the assumption-of-risk-and-release agreement because the events leading to T.J.’s injury were not covered by the exculpatory clause, and because T.J.’s injuries occurred on premises not covered by the exculpatory clause.

Regarding appellant’s first contention, the district court did not err in concluding [*12] that the events that resulted in T.J.’s injuries were covered by the exculpatory clause. Appellant’s argument on this point is that woodchip throwing is not an inherent risk of playing baseball. While this may be true, it is not dispositive in this case. As respondent noted, the “inherent risk” language found in the assumption-of-risk-and-release agreement is extraneous to the exculpatory clause because the sentence containing the “inherent risk” language precedes the exculpatory language. However, more important to the resolution of this appeal is determining what actions are covered by the term “activities” as it is used in the exculpatory clause. Appellant attempts to define the term “activities” narrowly, to mean only activities directly related to the game of baseball. This is contrary to a plain reading of the assumption-of-risk-and-release agreement. The first time “activities” occurs in the agreement, it is used to describe “the activities that make up the MBIS.” It is not limited to the activity of playing baseball; instead, it covers all of the activities encompassed by the respondent’s camp. Lunch-break activities were part of respondent’s camp. T.J. was injured during the [*13] lunch break. As such, the exculpatory clause, under a plain reading, does cover T.J.’s injury.

Regarding appellant’s second contention, the district court did not err in concluding that T.J.’s injuries occurred on premises covered by the exculpatory clause. Appellant argues that the residence hall courtyard, in which the injury occurred, is not part of the “premises” used for specific baseball instructional activities. As explained above, appellant’s definition is too narrow. As used in the assumption-of-risk-and-release agreement, “activities” refers to all of the activities that are part of the camp, rather than just activities directly related to baseball. Because lunch-break activities are part of the camp, those activities are covered by the assumption-of-risk-and-release agreement. As a result, the premises where lunch-break activities occurred are covered by the exculpatory clause.

III. The exculpatory clause does not violate public policy.

Finally, the district court was correct in concluding that the exculpatory clause did not violate public policy. 2

2 Appellant does not contend that T.J. was injured as a result of respondent’s intentional conduct.

[HN4] Even if a release clause is [*14] unambiguous in scope and is limited only to negligence, courts must still ascertain whether its enforcement will contravene public policy. On this issue, a two-prong test is applied:

Before enforcing an exculpatory clause, both prongs of the test are examined, to-wit: (1) whether there was a disparity of bargaining power between the parties (in terms of a compulsion to sign a contract containing an unacceptable provision and the lack of ability to negotiate elimination of the unacceptable provision) . . . and (2) the types of services being offered or provided (taking into consideration whether it is a public or essential service).

Id. (citations omitted).

The two-prong test describes what is generally known as a “contract of adhesion.” Anderson v. McOskar Enters., 712 N.W.2d 796, 800 (Minn. App. 2006). As explained in Schlobohm, [HN5] a contract of adhesion is

a contract generally not bargained for, but which is imposed on the public for necessary service on a ‘take it or leave it’ basis. Even though a contract is on a printed form and offered on a ‘take it or leave it’ basis, those facts alone do not cause it to be an adhesion contract. There must be a showing that the parties were greatly [*15] disparate in bargaining power, that there was no opportunity for negotiation and that the services could not be obtained elsewhere.

326 N.W.2d at 924-25.

Here, it is not in dispute that the exculpatory clause was part of a take-it-or-leave-it agreement. Neither appellant nor respondent argues that T.J.’s mother had the ability to negotiate the agreement. What the parties do dispute is the nature of the services being offered by respondent. Appellant argues that instructional baseball training is an educational activity and, thus, an essential public service. We disagree. Instructional baseball training is not a service that is either of great importance to the public, or a practical necessity for some members of the public. Furthermore, the services provided by respondent are not essential because there are other avenues to obtain instructional baseball training for children. See id. at 926 ( [HN6] “[I]n the determination of whether the enforcement of an exculpatory clause would be against public policy, the courts consider whether the party seeking exoneration offered services of great importance to the public, which were a practical necessity for some members of the public.”).

Because the [*16] district court did not err (1) in concluding that there was no material fact in dispute; (2) in interpreting the exculpatory clause; and (3) determining that the exculpatory clause did not violate public policy, we affirm.


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Minnesota decision upholds parent’s right to sign away a minor’s right to sue.

Case was a baseball camp where the minor was injured during horseplay. 

Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299 

This is a pretty simple case. The defendants operated a baseball camp on the campus of the University of Minnesota. The plaintiff’s mother had signed her son up for the camp, online or electronically. On the last day after lunch a group of students went to the courtyard. The plaintiff sustained a permanent eye injury when they started throwing woodchips from the courtyard at each other.

The father sued on behalf of his son. The trial court, a district court in the opinion, granted the defendant’s motion for summary judgment. The father on his and his son behalf appealed.

The plaintiff first argued that the release, or assumption of the risk agreement as it was termed in the decision, should be “thrown out” because it could not be produced. Because the mother had signed online there was no signed document. On top of that, the system used by the defendant did not produce any document indicating who had signed what documents.

However, the defendant was able to show that the mother had signed other documents just like the release. A roster of those kids that had attended the camp that summer, with the injured minor’s name on it was produced. The camp through a director, also testified that if the mother had not signed the release, the minor would not have been allowed to attend the camp.

The mother’s deposition was also introduced. She could not deny filing out the forms online even though she did not remember the forms.

The plaintiff’s then argued that the language of the release did not cover the injury the minor sustained. The language only spoke to baseball and as such the release only covered injuries that the minor could have received playing baseball. Horsing around during free time therefore, was not covered by the release. The plaintiff also argued the language that excluded the claims; the release sentence was separate from the sentence that identified the risks. As such the release should be very narrowly construed.

Neither argument was accepted by the court. The court found that the release covered more than just baseball, and the release had to be read as a whole so the risk was incorporated into the exculpatory sentence.

The plaintiff then argued the exculpatory clause violated public policy. The court dismissed this argument. The court found that the baseball camp was not educational in nature. The training could be found through other sources and playing baseball was not essential or of great importance to members of the public.

The rules of evidence have a procedure for admitting into trial documents that have been lost. The rule is based on procedure. The procedure to be allowed to go to a baseball camp required a parent to sign many documents. The child would not have been allowed at amp without signing all of the documents. A procedure was set up to show the mother had to have signed the release because her son was at the camp.
You should create a procedure for your business, camp or program. The best one I’ve seen for whitewater rafting was created by Mountain Waters Rafting. Guests were given their PFD’s (life jackets) when they handed in their releases. If a guest had on a PFD, the guest had signed a release.

The more you can identify a procedure that you used the same way every time, the easier to introduce a lost piece of paper.

Electronically, there can be several ways to make sure you can prove a person read and signed the release online. I first suggest you always tie a release into a credit card. The credit card company knows more about the holder of a credit card then you ever will. If the credit is accepted to pay for something on line, and the name on the release matches the name on the credit card you can prove the release was signed. If the trip or camp was paid for a release was signed.

You should also have a system that you are notified that each person has signed the documents. Create a way to download the information, name, address, etc. date and exact time the release was signed to your business computer and do so regularly. That information can be matched up, name, date and time to the credit card and payment used. Match this with your receipt of payment from the credit card company and you should have proof.

Make sure your release is written to cover all the risks of your program, business or activity. Here the language was broad enough the baseball program was covered for horseplay. How often do you feed guests, transport guests, and have guests just walking around that could be a chance to be injured. Your release needs to stop litigation, all types of litigation, not just what you face what you are selling to the public.

What do you think? Leave a comment.

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