Collecting accident reports without doing something with the reports guarantees you will lose a lawsuit and in this case possibly for gross negligence.
Posted: May 4, 2020 Filed under: Climbing Wall, Utah | Tags: Accident Reports, Bouldering, Bouldering Wall, Climbers, Climbing Gym, Climbing Wall, concealed, damaged, district court, Failue to Act, floor, Gross negligence, Hazard, Incident Reports, indifference, injuries, material fact, Mats, Padding, patches, quotation, reliability, simplified, slight care, Steps, Summary judgment, tear, vinyl Leave a commentClimbing gym had a collection of accident reports that were based on the same set of facts. Failure to act on the reports and solve the problem was enough proof for the Utah appellate court to hold the actions of the defendant gym were possibly grossly negligent.
Howe v. Momentum LLC, 2020 UT App 5, 2020 Utah App. LEXIS 1, 2020 WL 34996
State: Utah; Court of Appeals of Utah
Plaintiff: Scott Howe
Defendant: Momentum LLC
Plaintiff Claims: Momentum was grossly negligent. He alleged that Momentum, “with a knowing and reckless indifference and disregard for the safety of [Howe] and other members of [Momentum], concealed, or caused to be concealed, the defects in their floor padding by placing mats over the defective area
Defendant Defenses: the actions of the defendant did not rise to the level of gross negligence.
Holding: For the Plaintiff
Year: 2020
Summary
Incident and Accident reports that have not been acted on and the issues that caused the accidents which had not been fixed, were proof that the defendant climbing gym possibly acted in a grossly negligent way.
Facts
Momentum is an indoor-climbing facility with a separate area for bouldering. The bouldering area’s concrete floor is covered by approximately twelve inches of foam padding overlain by thick vinyl, known as an “impact attenuation surface.” In the years after Momentum’s 2007 opening, some of the vinyl began to tear and separate. In late September 2011, Momentum had “[a]t least one” tear repaired with a welded vinyl patch.
But Momentum’s management team deemed these tear patches a hazard for tripping, so it placed modular one-inch-thick mats over certain areas of the bouldering area floor that were showing signs of wear or damage. The mats are not designed to be anchored to the underlying pad and they would sometimes move when people landed on them. Because the mats tended to move, Momentum staff “monitored the floor regularly to try to keep the [mats] in place.” In addition to this action, a Momentum employee altered the routes above those areas by reconfiguring and reducing the number of foot-and hand-holds to reduce customer use of the areas with worn and damaged padding.
Over the years—and prior to Howe’s injury—Momentum’s patrons had reported incidents, some of which involved injuries, which alerted Momentum to the fact that the padding in the bouldering area was worn and damaged in some places. Before Howe was injured, five incidents were reported before Momentum began using the mats and another eight were reported thereafter. Each of these injuries involved a climber dropping from the bouldering wall or “slab area” to the floor below and, upon landing, pushing a foot through the floor padding, making contact with the concrete floor below, either rolling or twisting an ankle in the process.
In March 2012, Howe was bouldering at Momentum. After finishing his bouldering route, Howe dropped off the wall to the floor below. As he made contact with the floor, his “left foot impacted the mat on top of the padded floor, causing the mat to move. As the mat moved, it exposed the padded floor beneath. Concealed under the mat, the cover of the pad was split in a straight line, exposing the abutting edges of pads below.” When Howe’s “right foot impacted the top of the two abutting pads, [his] foot passed between the two abutting pads to the floor beneath.” As a result of the contact with the concrete, Howe broke his right ankle.
Howe sued, asserting—among other things—that Momentum was grossly negligent. He alleged that Momentum, “with a knowing and reckless indifference and disregard for the safety of [Howe] and other members of [Momentum], concealed, or caused to be concealed, the defects in their floor padding by placing mats over the defective area.”
The defendant Momentum filed a motion for summary judgement to dismiss the gross negligence claims of the plaintiff. The trial court judge ruled the plaintiff had shown enough action and inaction on the part of the gym that the plaintiff could proceed to trial on a claim of gross negligence. The defendant appealed this ruling.
The decision also looks at the qualifications of the plaintiff’s expert witness. However, there is nothing in the decision that warrants review here.
Analysis: making sense of the law based on these facts.
The court’s analysis of the law was quite good and balanced. It’s application of the law to the facts was clear cut. The court defined gross negligence under Utah’s law as “…the failure to observe even slight care….”
A broader definition was defined as:
“…the essential evidence needed to survive a defendant’s motion for summary judgment on a gross negligence claim” is “evidence that the defendant’s conduct dramatically magnified the risk of harm to the plaintiff….
The court concluded its review of gross negligence with this statement about the actions of the defendant. “…Momentum’s failure to take further action in the face of eight additional incidents creates questions of fact about whether it was grossly negligent….”
The court then followed with this statement.
It is beyond question that a plaintiff who can demonstrate that a defendant has taken no action in response to injury incidents will have likely made out at least a prima facie case of gross negligence,….
At this point, in the opinion it is clear the court looked at Momentum’s failure to act after collecting more than 13 incident reports as gross negligence.
It is also clear that the court believes that failure to act on the defendant’s own incident reports is a major failure of the defendant. Why have accident and incident reports if you do nothing about them.
These acts arguably show that Momentum exercised slight care in the beginning and was therefore not completely indifferent to the consequences of allowing climbers to use the bouldering area given the condition of the padding.
The court gave the climbing gym some benefit because after the first five accidents, they placed additional padding over the torn spots. However, having eight additional incidents, with the torn padding was more than the court would allow.
The court then summed up the accident reports that the defendant compiled.
…onto the floor below, the mat moved, their feet were caught in the crack in the foam padding, and their ankles were injured. Under these circumstances, the question of whether Momentum’s continued use of the mats constituted gross negligence presents a disputed issue of material fact.
The court found that collecting injury reports, which almost identical fact situations and not doing anything about it were proof of gross negligence. The appellate court held the trial court was correct in denying the defendant climbing gym’s motion for summary judgment to dismiss the gross negligence claims.
So Now What?
Incident reports are legal explosives just waiting to go off when a plaintiff’s attorney gets them. If you collect them, then you MUST do something with them.
Each report MUST be analyzed. It must be compared with all other reports to see trends or to determine what the cause or problem is. Then something must be done to correct the problem.
If you decided the report is a rate instance or something outside of your ability to control it, then you must indicate that in your notes or on your response to the report. If a second accident occurs with the same fact situation, then it is not longer a rare case, it is something you must act on.
If not, like in this case, the reports prove foreseeability and in this case, prove that failing to act when the defendant knew a problem existed, was enough to support a claim of gross negligence.
What do you think? Leave a comment.
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Howe v. Momentum LLC, 2020 UT App 5, 2020 Utah App. LEXIS 1, 2020 WL 34996
Posted: April 23, 2020 Filed under: Climbing Wall, Utah | Tags: Accident Reports, Bouldering, Bouldering Wall, Climbers, Climbing Gym, Climbing Wall, concealed, damaged, district court, Failue to Act, floor, Gross negligence, Hazard, Incident Reports, indifference, injuries, landing, material fact, Mats, Padding, patches, quotation, reliability, simplified, slight care, Steps, Summary judgment, tear, vinyl Leave a commentHowe v. Momentum LLC, 2020 UT App 5, 2020 Utah App. LEXIS 1, 2020 WL 34996
Court of Appeals of Utah
January 3, 2020, Filed
No. 20190187-CA
[*P1] Scott Howe sued Momentum LLC under a theory of gross negligence1 for injuries he sustained while “bouldering.”2 Momentum moved for summary judgment, which the district court denied because the disputed facts were sufficient to raise a jury question. The district court also ruled that Howe’s expert (Expert) was qualified to testify on the industry standard of care. The matter is before this court on an interlocutory appeal challenging the court’s denial of the summary judgment motion and its decision to permit Expert to testify. We affirm and remand for further proceedings.
BACKGROUND3
[*P2] Momentum is an indoor-climbing facility with a separate area for bouldering. The bouldering area’s concrete floor is covered by approximately twelve inches of foam padding overlain by thick vinyl, known as an “impact attenuation surface.” In the years after Momentum’s 2007 opening, some of the vinyl [**2] began to tear and separate. In late September 2011, Momentum had “[a]t least one” tear repaired with a welded vinyl patch.
[*P3] But Momentum’s management team deemed these tear patches a hazard for tripping,4 so it placed modular one-inch-thick mats over certain areas of the bouldering area floor that were showing signs of wear or damage. The mats are not designed to be anchored to the underlying pad and they would sometimes move when people landed on them. Because the mats tended to move, Momentum staff “monitored the floor regularly to try to keep the [mats] in place.” In addition to this action, a Momentum employee altered the routes above those areas by reconfiguring and reducing the number of foot-and hand-holds to reduce customer use of the areas with worn and damaged padding.
[*P4] Over the years—and prior to Howe’s injury—Momentum’s patrons had reported incidents, some of which involved injuries, which alerted Momentum to the fact that the padding in the bouldering area was worn and damaged in some places. Before Howe was injured, five incidents were reported before Momentum began using the mats and another eight were reported thereafter. Each of these injuries involved a climber dropping [**3] from the bouldering wall or “slab area” to the floor below and, upon landing, pushing a foot through the floor padding, making contact with the concrete floor below, either rolling or twisting an ankle in the process.
[*P5] In March 2012, Howe was bouldering at Momentum. After finishing his bouldering route, Howe dropped off the wall to the floor below. As he made contact with the floor, his “left foot impacted the mat on top of the padded floor, causing the mat to move. As the mat moved, it exposed the padded floor beneath. Concealed under the mat, the cover of the pad was split in a straight line, exposing the abutting edges of pads below.” When Howe’s “right foot impacted the top of the two abutting pads, [his] foot passed between the two abutting pads to the floor beneath.” As a result of the contact with the concrete, Howe broke his right ankle.
[*P6] Howe sued, asserting—among other things—that Momentum was grossly negligent. He alleged that Momentum, “with a knowing and reckless indifference and disregard for the safety of [Howe] and other members of [Momentum], concealed, or caused to be concealed, the defects in their floor padding by placing mats over the defective area.”
[*P7] Howe designated [**4] a liability Expert. Expert has a bachelor’s degree in chemical engineering and petroleum refining, as well as a master’s degree in metallurgical and materials engineering. His professional experience includes research and development engineering as well as forensic engineering. Expert owns a forensic engineering company that specializes in “metallurgical, materials, and mechanical failure analysis”; “materials evaluation and testing”; “product liability and analysis”; “fire and explosion cause and origin”; “industrial, recreational, and construction accident analysis”; and “chemical and mechanical systems failure analysis.” Expert has been an expert witness in numerous cases, one of which involved a mechanical failure that caused an indoor climbing accident. He has also had professional experience with evaluating impact attenuation surfaces in the ski industry.
[*P8] Expert opined that Momentum did not take appropriate steps to protect climbers in the bouldering area. Indeed, Expert concluded that
Momentum significantly elevated the risk of injury to climbers in the bouldering area by (1) failing to repair, restrict access, clearly mark, cordon off, close walls, or close areas around and [**5] near the areas where the vinyl padding cover was damaged, and by (2) placing the [mats] over the damaged areas of the padding cover, thus concealing the hazard created by the damage.
In Expert’s opinion, appropriate steps to remedy the problem could have included using “warning signs, closing the sections of the floor or wall near damaged areas,” removing the hand-and foot-holds above the damaged padding, making inaccessible the damaged padding areas, or repairing the damaged padding. During deposition testimony, Expert explained that “those are ways to prevent the public from interacting with the obvious hazard created by the opening in the pads.” This approach was based on his “engineering background and experience in dealing with hazards.” In short, his opinion is that “gluing and adhering . . . a large patch of vinyl over the tear” would have been safer than using the mats.
[*P9] Momentum moved for summary judgment, arguing the undisputed facts established that it exercised at least slight care to protect climbers using its facility, which meant Howe could not demonstrate gross negligence. Momentum also moved to exclude Expert, claiming he was unqualified to opine upon the standard of [**6] care in the indoor-climbing industry. The district court denied these motions, and Momentum successfully petitioned this court for an interlocutory appeal.
ISSUES AND STANDARDS OF REVIEW
[*P10] Momentum raises two issues on appeal. First, it claims the district court erred when it denied Momentum’s motion for summary judgment. HN1[
] Denials of summary judgment are questions of law reviewed for correctness. Glenn v. Reese, 2009 UT 80, ¶ 6, 225 P.3d 185.
[*P11] Second, Momentum claims the district court erred when it denied Momentum’s motion to exclude Expert. HN2[
] A district court’s determination regarding the admissibility of expert testimony is reviewed for abuse of discretion. Gunn Hill Dairy Props., LLC v. Los Angeles Dep’t of Water & Power, 2012 UT App 20, ¶ 16, 269 P.3d 980.
ANALYSIS
I. Summary Judgment
[*P12] HN3[
] Summary judgment shall be granted “if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.” Utah R. Civ. P. 56(a). In this case, the district court denied Momentum’s motion for summary judgment on Howe’s claim for gross negligence, based on its finding that there were “numerous genuine issues of disputed material fact.”
[*P13]
HN4[
] In reviewing a district court’s summary judgment decision, appellate courts “must evaluate all the evidence and all reasonable inferences fairly drawn from the evidence [**7] in a light most favorable to the party opposing summary judgment to determine whether there is a material issue of fact to be tried.” Horgan v. Industrial Design Corp., 657 P.2d 751, 752 (Utah 1982). “Gross negligence is the failure to observe even slight care; it is carelessness or recklessness to a degree that shows utter indifference to the consequences that may result. Summary judgment is proper where reasonable minds could reach only one conclusion based on the applicable material facts.” Penunuri v. Sundance Partners, Ltd., 2017 UT 54, ¶ 35, 423 P.3d 1150 (quotation simplified).
[*P14] Citing Penunuri and Blaisdell v. Dentrix Dental Systems, Inc., 2012 UT 37, 284 P.3d 616, Momentum argues that “the undisputed material facts of this case show that [it] exercised care, far more than even slight care, and was not careless or reckless, let alone to a degree that shows utter indifference,” and that therefore “the district court erred in denying Momentum’s motion for summary judgment.” (Quotation simplified.) Momentum points out that it “[u]ndisputedly . . . took steps to protect climbers from being injured by the wear and tear damage that had developed in its primary padding,” including using welded patches, “thinn[ing] out” the climbing routes, and, “[a]fter determining that the . . . patches created tripping hazards,” using the mats and monitoring their positioning. In Momentum’s view, these steps [**8] demonstrate that it took at least slight care and was not utterly indifferent to the consequences that could result from a failure to take care.
[*P15] Howe acknowledges that Momentum took these steps, but argues they were inadequate. He further asserts that Momentum’s use of the pads to cover the defective flooring concealed the risk and rendered the climbers “defenseless against the dangerous conditions known to Momentum,” and claims that his “inability to see the dangerous flooring over which he was climbing contributed to his injuries.” At oral argument before this court, Howe argued this concealment “dramatically magnified” the risk of harm.
[*P16] We note the tension between our supreme court’s recent articulation of the elements of gross negligence as “the failure to observe even slight care,” Penunuri, 2017 UT 54, ¶ 35, 423 P.3d 1150 (quotation simplified), and the language of a subsequent paragraph suggesting that “the essential evidence needed to survive a defendant’s motion for summary judgment on a gross negligence claim” is “evidence that the defendant’s conduct dramatically magnified the risk of harm to the plaintiff,” id. ¶ 37. We can envision situations in which the straightforward application of the elements identified [**9] in paragraph 35 might dictate a grant of summary judgment in favor of the defendant while the application of the elements identified in paragraph 37 might dictate the denial of summary judgment. But we need not explore this tension further here because Momentum’s failure to take further action in the face of eight additional incidents creates questions of fact about whether it was grossly negligent, even assuming that paragraph 35 sets forth the correct formulation of the elements of gross negligence.
[*P17] Although Momentum took certain steps to remedy the problem created by the deterioration of the foam padding, injury incidents continued to occur even after implementation of Momentum’s injury-avoidance strategy. HN5[
] It is beyond question that a plaintiff who can demonstrate that a defendant has taken no action in response to injury incidents will have likely made out at least a prima facie case of gross negligence, one sufficient to withstand summary judgment. See id. ¶ 16 (“Summary judgment dismissing a gross negligence claim is appropriate where reasonable minds could only conclude that the defendant was not grossly negligent under the circumstances . . . .”). We cannot see much of a distinction [**10] between that situation and the case Howe brings here: a defendant takes some action in response to injury incidents, and therefore arguably demonstrates slight care in the beginning, but takes no additional action after injury incidents continue to occur following implementation of its original strategy. Stated another way, we are not persuaded that a defendant who simply relies on a repeatedly-failed strategy to avert injury from a known risk is entitled to judgment as a matter of law on the “slight care” question.
[*P18] In this case, five incidents, some of which involved injuries, motivated Momentum to take steps to address the problem and ultimately to place mats over the cracked foam padding. These acts arguably show that Momentum exercised slight care in the beginning and was therefore not completely indifferent to the consequences of allowing climbers to use the bouldering area given the condition of the padding. But by the time Howe was injured, eight more injuries had been reported to Momentum, even after it had thinned the routes and put down the extra pads. These eight additional climbers were injured in roughly the same manner as Howe: when they dropped from the bouldering wall [**11] onto the floor below, the mat moved, their feet were caught in the crack in the foam padding, and their ankles were injured. Under these circumstances, the question of whether Momentum’s continued use of the mats constituted gross negligence presents a disputed issue of material fact.
[*P19] Because a reasonable finder of fact could determine, on this record, that Momentum was grossly negligent, the district court’s denial of summary judgment was appropriate.
II. Expert Testimony
[*P20] HN6[
] The Utah Rules of Evidence allow “a witness who is qualified as an expert by knowledge, skill, experience, training, or education” to “testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Utah R. Evid. 702(a). Furthermore, “[s]cientific, technical, or other specialized knowledge may serve as the basis for expert testimony only if there is a threshold showing that the principles or methods that are underlying in the testimony (1) are reliable, (2) are based upon sufficient facts or data, and (3) have been reliably applied to the facts.” Id. R. 702(b).
[*P21] Momentum argues the district court [**12] abused its discretion in denying its motion to exclude Expert. First, it contends Expert’s experience as an engineer did not qualify him to testify as to the applicable standard of care in the indoor-climbing industry. Second, Momentum contends that, because Expert did not evaluate or test vinyl floor padding or the mats used to cover the damaged areas, Expert’s opinions did not meet the reliability standard imposed by rule 702 of the Utah Rules of Evidence.
[*P22] But as Howe points out, Expert’s training as a professional engineer with experience in “forensic engineering and accident analysis in recreational settings,” “slip and fall accident analysis,” and “warnings, design, and standard of care issues” qualifies him to assist the finder of fact in making a determination of the standard of care in the indoor-climbing industry.
[*P23] Expert’s proposed testimony is that Momentum acted with indifference toward the safety of its members when it placed mats over the damaged padding; Expert opines that Momentum could have and should have taken alternative steps to mitigate the effects of the worn padding. As Howe points out, and the district court agreed, this testimony “will be helpful to the jury to understand the options Momentum had [**13] in addressing the damaged vinyl” and to avoid speculation regarding its options.
[*P24]
HN7[
] Further, as to reliability, Expert’s opinion is based “upon [his] engineering education, experience, and training” and “knowledge . . . gained from being a forensic engineer . . . and studying padding and other types of accidents.” In determining whether to allow an expert to offer an opinion, the district court’s role is that of a “gatekeeper,” meant “to screen out unreliable expert testimony.” Gunn Hill Dairy Props., LLC v. Los Angeles Dep’t of Water & Power, 2012 UT App 20, ¶ 28, 269 P.3d 980 (quotation simplified). The court is afforded “broad discretion” when making this determination, and we “will reverse its decision only when it exceeds the bounds of reasonability.” Id. ¶ 31 (quotation simplified). Here, the court’s determination that Expert’s opinion was sufficiently reliable does not “exceed[] the bounds of reasonability,” and we decline to reverse it. See id. (quotation simplified). Expert’s opinion meets the threshold showing of reliability and “will help the trier of fact to understand the evidence or to determine a fact in issue.” Utah R. Evid. 702(a). Therefore the district court did not abuse its discretion in denying Momentum’s motion to exclude his testimony.
CONCLUSION
[*P25] Because there are material facts in [**14] dispute, the district court properly denied Momentum’s summary judgment motion. Furthermore, the court did not abuse its discretion in denying Momentum’s motion to exclude Expert. We affirm the district court’s rulings on these points and remand for further proceedings.
Soderberg v. Anderson, 922 N.W.2d 200, 2019 Minn. LEXIS 32, 2019 WL 287781
Posted: April 16, 2020 Filed under: Assumption of the Risk, Minnesota, Ski Area, Skiing / Snow Boarding | Tags: assume a risk, Assumption of the Risk Doctrine. Comparative Fault, ball, Blind 180, Collisions, Court of Appeals, district court, Doctrine of Primary Assumption of the Risk, Downhill, flying, Hazard, Hockey, instructor, Minnesota Supreme Court, patron's, Primary Assumption of Risk, recreational, rider's, secondary assumption, Secondary Assumption of Risk, Skating, skier v. skier, skier's, skiing, Snowboarder v. Skier, snowboarding, Snowmobiling, Spectator, Sport, Summary judgment, trick 2 CommentsSoderberg v. Anderson, 922 N.W.2d 200, 2019 Minn. LEXIS 32, 2019 WL 287781
Supreme Court of Minnesota
January 23, 2019, Filed
A17-0827
922 N.W.2d 200 *; 2019 Minn. LEXIS 32 **; 2019 WL 287781
Julie A. Soderberg, Respondent, vs. Lucas Anderson, Appellant.
Prior History: [**1] Court of Appeals.
Soderberg v. Anderson, 906 N.W.2d 889, 2018 Minn. App. LEXIS 47 (Minn. Ct. App., Jan. 16, 2018)
Counsel: 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.
Judges: Lillehaug, J., Took no part, Anderson, J.
[*201] LILLEHAUG, Justice.
In 2016, a ski area outside Duluth, Spirit [**2] 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.” [*202] 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 [**3] 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 [**4] 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 [**5] owed no duty of care to Soderberg based on the doctrine of implied primary assumption of risk. HN1[
] 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 (Minn. [*203] 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. HN2[
] 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 [**6] 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 (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, 122 Minn. 327, 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, 185 Minn. 507, 240 N.W. 903, 904 (Minn. 1932). We concluded that the ball club had provided [**7] 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 (Minn. 1958), that HN3[
] 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 [*204] 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 (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, 224 Minn. 556, 29 N.W.2d 453, 456-57 (Minn. 1947). We stated [**8] 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 (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. HN4[
] We have consistently declined to apply the doctrine to bar claims arising out of collisions between snowmobilers. In Olson v. Hansen, 299 Minn. 39, 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 [**9] 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, 300 Minn. 273, 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., 305 Minn. 506, 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 [*205] 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 [**10] 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, HN5[
] “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., 269 Conn. 672, 849 A.2d 813, 832 (Conn. 2004). We relied on similar reasoning in our line of recreational snowmobiling cases, in which we noted that [**11] 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. HN6[
] “The doctrine of assumption of risk is not favored, and should be limited rather than extended.” Suess v. Arrowhead Steel Prods. Co., 180 Minn. 21, 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., 219 Ariz. 200, 196 P.3d 222, 226-28 (Ariz. 2008); Dawson v. Fulton, 294 Ark. 624, 745 S.W.2d 617, 619 (Ark. 1988); P.W. v. Children’s Hosp. Colo., 364 P.3d 891, 895-99, 2016 CO 6 (Colo. 2016); Blackburn v. Dorta, 348 So. 2d 287, 291-92 (Fla. 1977); Salinas v. Vierstra, 107 Idaho 984, 695 P.2d 369, 374-75 (Idaho 1985); Pfenning v. Lineman, 947 N.E.2d 392, 403-04 (Ind. 2011); Simmons v. Porter, 298 Kan. 299, 312 P.3d 345, 354-55 (Kan. 2013); Murray v. Ramada Inns, Inc., 521 So. 2d 1123, 1132-33 (La. 1988); Wilson [*206] v. Gordon, 354 A.2d 398, 401-02 (Me. 1976); Abernathy v. Eline Oil Field Servs., Inc., 200 Mont. 205, 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., 41 N.J. 272, 196 A.2d 238, 239-41 (N.J. 1963); Iglehart v. Iglehart, 2003 ND 154, 670 N.W.2d 343, 349-50 (N.D. 2003); Christensen v. Murphy, 296 Ore. 610, 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., 265 Va. 98, 574 S.E.2d 277, 280-82 (Va. 2003); King v. Kayak Mfg. Corp., 182 W. Va. 276, 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, 73 Wis. 2d 547, 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 [**12] 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 [**13] of appeals’ disposition—reversal and remand—on a different ground.
CONCLUSION
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.
Haines v. Get Air Tucson Incorporated, et al., 2018 U.S. Dist. LEXIS 180500, 2018 WL 5118640
Posted: April 25, 2019 Filed under: Arizona, Indoor Recreation Center, Legal Case | Tags: activities, alleges, argues, contends, Contractor, district court, drafted, edition, employee handbook, Employees, exercise of jurisdiction, foam, franchisee, Franchiser, generic, Handbook, jurisdictional, Manual, Motion to Dismiss, nonresident, parties, Personal jurisdiction, purposefully, recommendation, remember, removal, revised, safety rule, Third Party, training, Trampoline Leave a commentHaines v. Get Air Tucson Incorporated, et al., 2018 U.S. Dist. LEXIS 180500, 2018 WL 5118640
Blake Haines, Plaintiff,
v.
Get Air Tucson Incorporated, et al., Defendants.
No. CV-15-00002-TUC-RM (EJM)
United States District Court, D. Arizona
October 19, 2018
ORDER
Honorable Rosemary Marquez United States District Judge.
Pending before the Court is Defendant Get Air, LLC’s (“Defendant” or “GALLC”) Motion for Summary Judgment. (Doc. 238.) On August 2, 2018, Magistrate Judge Eric J. Markovich issued a Report and Recommendation (Doc. 266), recommending that the Motion for Summary Judgment be granted as to Plaintiff’s punitive damages claim but otherwise denied. Defendant filed an Objection (Doc. 269), to which Plaintiff responded (Doc. 273).
I. Standard of Review
A district judge “may accept, reject, or modify, in whole or in part, the findings or recommendations” made by a magistrate judge. 28 U.S.C. § 636(b)(1). The district judge must “make a de novo determination of those portions” of the magistrate judge’s “report or specified proposed findings or recommendations to which objection is made.” Id. The advisory committee’s notes to Rule 72(b) of the Federal Rules of Civil Procedure state that, “[w]hen no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation” of a magistrate judge. Fed.R.Civ.P. 72(b) advisory committee’s note to 1983 addition. See also Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999) (“If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error.”); Prior v. Ryan, CV 10-225-TUC-RCC, 2012 WL 1344286, at *1 (D. Ariz. Apr. 18, 2012) (reviewing for clear error unobjected-to portions of Report and Recommendation).
II. GALLC’s Objection to Judge Markovich’s Report and Recommendation
As previously found by this Court, Plaintiff has presented evidence that GALLC developed a generic employee handbook (“EH”) for use in other Get Air trampoline parks as part of its support for the expansion of the Get Air business enterprise, and that the EH was used by Get Air Tucson. (See Doc. 158 at 12-14; Doc. 172 at 5.)[1] Plaintiff claims that his injuries were caused by allegedly deficient safety rules contained in the EH. (See Doc. 84 at 6, 10, 12-13.) In its Motion for Summary Judgment, Defendant argues (1) it owed no duty to Plaintiff, (2) even if it owed a duty, it was not negligent because the EH prohibited the maneuver that led to Plaintiff’s injuries, (3) it no longer has any potential legal liability because the employee involved in the creation of the EH was dismissed with prejudice; (4) Plaintiff cannot prove causation, and (5) Plaintiff’s claim for punitive damages is factually unsupported. (Doc. 238 at 1-2.)
Judge Markovich recommended that Defendant’s Motion for Summary Judgment be granted with respect to Plaintiff’s punitive-damages claim. (Doc. 266 at 17.) Judge Markovich rejected Defendant’s other arguments. He found that, as a result of “the special business-customer relationship that was created when GALLC performed an undertaking to develop the EH as part of its support work for the Get Air entities, ” GALLC owed Plaintiff a duty to exercise reasonable care in developing the safety rules in the EH. (Id. at 10.) Judge Markovich found that summary judgment on the issue of breach of the standard of care is precluded because there is a material factual dispute concerning whether the rule prohibiting somersaults in the EH was sufficient to prohibit the flip maneuver attempted by Plaintiff. (Id. at 7-8.) Judge Markovich also found that the dismissal of Val Iverson does not preclude Plaintiff from pursuing this action against GALLC, because a stipulated dismissal with prejudice no longer operates as an adjudication on the merits under Arizona law, and because Plaintiff’s claims are based on GALLC’s own negligence and piercing the corporate veil rather than on vicarious liability. (Id. at 16.) Finally, Judge Markovich found that Defendant’s causal-connection argument is “belied by other evidence previously considered by the Court.” (Id. at 16-17.)
Defendant argues that Judge Markovich erred in finding that GALLC owed Plaintiff a duty, in finding a material factual dispute with respect to the issue of breach of the standard of care, and in finding that GALLC can be held liable despite the dismissal of Val Iverson. (Doc. 269 at 1-10.) GALLC’s Objection to the Report and Recommendation does not address Judge Markovich’s finding on causation. The parties do not object to Judge Markovich’s finding that Plaintiff’s punitive-damages claim is factually unsupported.
III. Discussion
As no specific objections have been made to Judge Markovich’s recommendations regarding Plaintiff’s punitive-damages claim and Defendant’s causation argument, the Court has reviewed those portions of the Report and Recommendation for clear error, and has found none. Accordingly, the Court will accept and adopt Judge Markovich’s recommendation to grant Defendant’s Motion for Summary Judgment with respect to Plaintiff’s punitive damages claim and to deny the Motion for Summary Judgment to the extent it argues a lack of evidence of causation.
A. Existence of Duty
“To establish a defendant’s liability for a negligence claim, a plaintiff must prove: (1) a duty requiring the defendant to conform to a certain standard of care; (2) breach of that standard; (3) a causal connection between the breach and the resulting injury; and (4) actual damages.” Quiroz v. Alcoa Inc., 416 P.3d 824, 827-28 (Ariz. 2018). The existence of a duty is determined by the Court as a matter of law. See Id. at 828. A duty may “arise from a special relationship between the parties, ” including a special relationship finding its basis in “undertakings.” Stanley v. McCarver, 92 P.3d 849, 851 (Ariz. 2004); see also Quiroz, 416 P.3d at 829.
Although there is evidence that the various Get Air enterprises were operated as a closely linked network, the Court does not find that Plaintiff and GALLC had a traditional business-customer relationship. However, even though there was no direct business-customer relationship, Plaintiff and GALLC nevertheless had a special relationship based on GALLC undertaking to create safety rules for other Get Air trampoline parks, which GALLC included in a generic EH developed as part of its support work for the Get Air entities. Imposition of a duty based on this special relationship is supported by Arizona case law as well as sections 323 and 324A of the Restatement (Second) of Torts.
In McCarver, the Arizona Supreme Court imposed a duty of reasonable care on a radiologist contracted by the plaintiff’s employer to interpret an x-ray of the plaintiff’s chest, despite the lack of a traditional doctor-patient relationship. 92 P.3d at 853. In imposing a duty, the Court analyzed “whether the doctor was in a unique position to prevent harm, the burden of preventing harm, whether the plaintiff relied upon the doctor’s diagnosis or interpretation, the closeness of the connection between the defendant’s conduct and the injury suffered, the degree of certainty that the plaintiff has suffered or will suffer harm, the skill or special reputation of the actors, and public policy.” Id. Though the facts at issue in McCarver differ from those at issue in the present case, the factors supporting imposition of a duty in McCarver also support imposition of a duty here. By including safety rules in a generic EH developed for use in other Get Air parks, GALLC placed itself in a unique position to prevent harm to customers of those other Get Air parks. Get Air Tucson customers such as Plaintiff relied upon the safety rules developed by GALLC and enforced by Get Air Tucson. Plaintiff alleges that his injuries were caused by deficiencies in those safety rules. GALLC’s experience in the field of trampoline-park operations gave it special skill and a special reputation with respect to the creation of safety rules for other Get Air parks. Deficient safety rules increase the risk of harm to trampoline park customers, and the burden of developing sufficient safety rules is minimal.
The Court in McCarver also found that imposition of a duty in that case comported with Restatement (Second) of Torts § 324A. See McCarver, 92 P.3d at 853-54. Defendant argues in its Objection that Restatement (Second) of Torts § 324A “can appear to be the basis of the holding” in McCarver “but it is not.” (Doc. 269 at 3.) The import of Defendant’s argument is unclear. Whether it forms the basis of the holding in McCarver or not, Restatement (Second) of Torts § 324A has been adopted by Arizona courts. See Tollenaar v. Chino Valley Sch. Dist., 945 P.2d 1310, 1312 (Ariz. App. 1997). Section 324A provides:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
Restatement (Second) of Torts § 324A (1965).
Restatement (Second) of Torts § 324A supports the existence of a duty in this case.[2] GALLC undertook to render services to Get Air Tucson (e.g., development of an EH containing safety rules) which were necessary for the protection of Get Air Tucson’s customers. Plaintiff alleges that GALLC failed to exercise reasonable care in the development of the EH’s safety rules; if so, the failure increased the risk of harm to Get Air Tucson’s customers. See Restatement (2d) of Torts § 324A(a) (1965). Furthermore, GALLC undertook to perform a duty-development of reasonable safety rules-which Get Air Tucson owed to its customers. See Id. at § 324A(b). Plaintiff alleges he was injured as a result of his reliance upon the safety rules developed by GALLC and enforced by Get Air Tucson. See Id. at § 324A(c).
Restatement (Second) of Torts § 323 has also been adopted by Arizona courts, see Tollenaar, 945 P.2d at 1312, and it also supports the existence of a duty here. Section 323 provides:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care, increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaking.
Restatement (2d) of Torts § 323 (1965). GALLC’s creation of safety rules was a service rendered not only to Get Air parks but to the customers of those parks, including Get Air Tucson customers.
The Court agrees with Judge Markovich that GALLC owed Plaintiff a duty to exercise reasonable care in the development of the safety rules contained in the generic EH supplied to Get Air Tucson.
B. Breach
The Court also agrees with Judge Markovich that there is a genuine issue of material fact precluding summary judgment on the issue of whether GALLC breached its duty to exercise reasonable care in the creation of the EH’s safety rules. Specifically, there is a factual dispute regarding the definition of “somersault, ” as used in the EH’s safety rules and, therefore, a dispute regarding whether the flip maneuver attempted by Plaintiff was prohibited by the safety rules. The evidence identified by Plaintiff and Defendant indicates that there may be differing technical and layperson definitions of the term “somersault.” Even if the maneuver attempted by Plaintiff falls within a technical definition of the term “somersault, ” as Defendant argues, Plaintiff has identified evidence showing that Get Air employees did not consider flips to be encompassed by the EH’s safety rule prohibiting somersaults. (See Doc. 246 at 4-5; Doc. 246-1.) Accordingly, there is evidence from which a reasonable jury could find that the EH’s safety rules were defective for not clearly prohibiting the flip maneuver that led to Plaintiff’s injuries.
C. Liability of GALLC
Defendant argues that the only act of negligence alleged by Plaintiff is GALLC’s creation of allegedly defective safety rules, that Val Iverson was solely responsible for the creation of those safety rules, and that GALLC cannot be held vicariously liable for the conduct of Val Iverson because he has been dismissed with prejudice. However, as Judge Markovich found, Plaintiff is not asserting vicarious liability; rather, Plaintiff alleges that GALLC is independently negligent for undertaking to create a generic EH for use in other Get Air parks, including Get Air Tucson, and including allegedly deficient safety rules in that EH. The dismissal with prejudice of Val Iverson does not preclude Plaintiff from asserting a claim against GALLC for its own independent negligence, even if establishing the independent negligence of GALLC may require proof of Val Iverson’s negligence. See Kopp v. Physician Grp. of Ariz., Inc., 421 P.3d 149, 150 (Ariz. 2018).
IT IS ORDERED that Defendant’s Objection (Doc. 269) is overruled, and Judge Markovich’s Report and Recommendation (Doc. 266) is accepted and adopted as set forth above.
IT IS FURTHER ORDERED that Defendant’s Motion for Summary Judgment (Doc. 238) is granted as to Plaintiffs punitive damages claim only and is otherwise denied.
—–
Notes:
[1] Record citations refer to the page numbers generated by the Court’s electronic filing system.
[2] Defendant argues that § 324A is no longer a permissible basis of duty in Arizona because it is based on foreseeability. (Doc. 269 at 8.) Defendant cites no authority in support of the proposition that Arizona courts no longer follow § 324A. (See Doc. 247 at 1-4; Doc. 269 at 8.) Arizona courts have rejected the concept of duty based on the creation of an unreasonable risk of harm to “a foreseeable plaintiff, ” meaning a plaintiff “who is within the orbit or zone of danger created by a defendant’s conduct.” Quiroz, 416 P.3d at 828 (internal quotation marks omitted). Here, however, GALLC owed a duty to Get Air customers based on the special relationship created as a result of GALLC undertaking to develop safety rules for the protection of those customers. The duty arises from the special relationship rather than “zone of danger” foreseeability. See Id. at 829 (given the elimination of foreseeability from the duty framework, “the duty analysis” under Arizona law is limited to “common law special relationships or relationships created by public policy”).
—–
Minnesota Supreme Court allows skier v. skier lawsuits in MN. Colliding with a tree is an inherent risk but colliding with a person is not?
Posted: March 25, 2019 Filed under: Assumption of the Risk, Minnesota, Skier v. Skier, Skiing / Snow Boarding | Tags: appreciated, assume a risk, ball, Baseball, Collisions, Court of Appeals, district court, doctrine, Downhill, flying, Hazard, Hockey, injuries, instructor, Law, participants, patron's, Primary Assumption of Risk, recreational, rider's, secondary assumption, Skating, skier collision, skier v. skier, skier's, skiing, Snowboarder v. Skier, snowboarding, Snowmobiling, Spectator, Sport, Summary judgment, trick Leave a commentNSSA website that describes skiing as safe if done under control contributes to the reasoning that skiers should be able to sue other skiers in a sport.
Soderberg, v. Anderson, 906 N.W.2d 889, 2018 Minn. App. LEXIS 47 (Minn. Ct. App., Jan. 16, 2018)
State: Minnesota; Supreme Court of Minnesota
Plaintiff: Julie A. Soderberg
Defendant: Lucas Anderson
Plaintiff Claims: Negligence
Defendant Defenses: Primary Assumption of the Risk
Holding: For the Plaintiff
Year: 2019
Summary
Primary Assumption of the Risk does not apply to collisions between skiers on the slopes in Minnesota. Any collision between two people using a ski area will now result in lawsuits.
The Minnesota Supreme Court believed that skiing, and snowboarding were not inherently dangerous because they could be done with common sense and awareness to reduce the risk, as quoted from the NSAA website.
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.” 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.
Analysis: making sense of the law based on these facts.
The court first looked at Assumption of the risk and the differences between Primary Assumption of the Risk and Secondary Assumption of the 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. 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. 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.” Therefore, primary assumption of risk precludes liability for negligence, 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.'”
The court found the ski instructor did not assume the risk of being hit. “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.”
This first step in the analysis, that the ski instructor did not assume the risk of being hit, which the defense agreed to, sealed the fate of the decision. I think now days; most people consider the risk of a collision to be possible on the slopes.
So, the court then went through the history of primary assumption of the risk in Minnesota and how it was applied in baseball, skating and other sports. It then related why it has not applied primary assumption of the risk to snowmobiling.
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 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.” In 2012, we reaffirmed that snowmobiling is not an inherently dangerous sporting activity.
The court found that although skiers do collide with each other, it is not so frequent that it is considered an inherent risk of the sport.
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 . . . .”
The National Ski Area Association, (NSAA) has this statement on their website:
Common Sense, it’s one of the most important things to keep in mind and practice when on the slopes. The National Ski Areas Association (NSAA) believes education, helmet use, respect and common sense are very important when cruising down the mountain. NSAA developed Your Responsibility Code to help skiers and boarders be aware that there are elements of risk in snowsports that common sense and personal awareness can help reduce.
The National Ski Patrol, which probably has a better understanding of the risks of skiing does not have that statement on its website. The good news is both the NSAA, and the NSP now at least have the same code on their websites. That was not true in the past.
The court then stated it just did not want to extend primary assumption of the risk to another activity.
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.”
Finally, the court stated that it did not believe this decision would lead to fewer Minnesotans skiing. It will, but not by much. However, what it will do will be to increase litigation amount skiers and boarders. And if you are looking at going to a state to ski, knowing you can be sued if you hit someone else on the slopes might have you ski in another state.
Minnesota now joins Colorado in having billboards you can see leaving the ski areas asking if you have been hurt while skiing.
So Now What?
The court used an interesting analysis coupled with language from the NSAA website to determine that skiing was like snowmobiling and totally controllable, therefore, it was not a sport where you assume the risk of your injuries.
This is a minority opinion. Something this court did not even consider in its opinion. Most states you assume the risk of a collision. This decision was clearly written to increase the litigation in the state.
What do you think? Leave a comment.
Copyright 2019 Recreation Law (720) 334 8529
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Author: Outdoor Recreation Insurance, Risk Management and Law
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Email: Jim@Rec-Law.US
By Recreation Law Rec-law@recreation-law.com James H. Moss
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