Anderson v. Rugged Races, LLC, 42 F.4th 955 (8th Cir. 2022)
Posted: May 8, 2023 Filed under: Minnesota, Racing, Release (pre-injury contract not to sue) | Tags: Bang the Gong, Course Race, Federal Court of Appeals, Greater than Ordinary Negligence, Gross negligence, Jump, Minnesota, Mud Run, obstacle, Obstacle course racing, Obsticle Course, Ordinary Negligence, Platform, Release, Rugged Maniac, Spartan Race, Tough Mudder Leave a commentAnderson v. Rugged Races, LLC, 42 F.4th 955 (8th Cir. 2022)
42 F.4th 955
Jeanne ANDERSON, Plaintiff – Appellant
v.
RUGGED RACES, LLC; Dennis Raedeke, Inc., doing business as Wild Mountain Recreation Area, Defendants – Appellees
No. 20-3436
United States Court of Appeals, Eighth Circuit.
Submitted: February 16, 2022
Filed: August 2, 2022
Counsel who represented the appellant was L. Michael Hall, of Saint Cloud, MN and Mara Brust of Saint Cloud, MN.
Counsel who represented the appellee was John M. Bjorkman, of Saint Paul, MN, Mark A. Solheim, of Saint Paul, MN, Anthony James Novak, of Saint Paul, MN and Pat Henry O’Neill of Saint Paul, MN.
Before LOKEN, COLLOTON, and SHEPHERD, Circuit Judges.
LOKEN, Circuit Judge.
In September 2016, Jeanne Anderson shattered her heel bone participating in the Rugged Maniac Twin Cities 5k obstacle race at the Wild Mountain Recreation Area (“Wild Mountain”). In 2018, Anderson sued Rugged Races LLC (“Rugged Races”), the race promoter, and Dennis Raedeke, Inc., the owner of Wild Mountain, alleging that defendants were “grossly negligent” in failing to perform their duties to protect race participants from unreasonable risks of harm. She appeals the district court’s1 grant of summary judgment in favor of both defendants. The diversity action is governed by Minnesota state law. Reviewing the grant of summary judgment de novo , we affirm. See
Kraft v. Ingersoll-Rand Co., 136 F.3d 584, 585-86 (8th Cir. 1998) (standard of review).
I. Background
Since 2010, Rugged Races has planned hundreds of obstacle races around the country, including Rugged Maniac Twin Cities. The events feature an obstacle course with a series of challenges involving barbed wire, fire, water, and mud, followed by a post-race party. When Anderson registered for the 2016 Twin Cities event, she signed a Race Participant Agreement (the Agreement). In Part III of the Agreement, titled Assumption of Inherent Risks , Anderson acknowledged:
I understand fully the inherent risks involved in the Event and assert that I am willingly and voluntarily participating in the Event. … (1) I understand the nature of the Event; (2) I understand the physical and mental demands that this activity will place upon me; and (3) I understand that I may be injured by participating in the Event. I hereby assert that I knowingly assume all of the inherent risks of the activity and take full responsibility for any and all damages, liabilities, losses or expenses that I incur as a result of participating in the Event.
In Part IV, titled Waiver of Liability for Ordinary Negligence , Anderson waived and discharged both Rugged Races and Wild Mountain “from any and all claims resulting from the INHERENT RISKS of the Event or the ORDINARY NEGLIGENCE of Rugged Races LLC (or other Released Parties).” Anderson again signed the Agreement when she checked in on race day.
After starting the race and completing the first seven obstacles, Anderson reached the “Bang the Gong” challenge. This obstacle required her to jump from a raised platform, attempt to slap a gong in midair, and land in a pit of muddy water. When Anderson landed in the pit her “left foot hit something hard.” She crawled from the pit, received medical attention, and learned she had shattered the calcaneus bone in her left heel. Of the more than 4000 participants in the 2016 race, four others were injured on the Bang the Gong obstacle, suffering injuries to their foot or ankle after landing in the pit.
Anderson’s Complaint alleged (i) that defendants had duties to design and construct a reasonably safe course, maintain the course in a safe condition, inspect the course for unreasonable risks of harm, warn race participants of unreasonable risks, supervise parties responsible for performing those duties, and operate and maintain the course to ensure participants were not exposed to unreasonable risks; and (ii) that defendants were grossly negligent in failing to perform each of these duties. After discovery, defendants moved for summary judgment. The summary judgment record includes deposition testimony from Anderson and Rugged Races employees, declarations from the other injured participants, reports by Anderson’s expert witnesses, and other documentary evidence.
The district court granted summary judgment in favor of both defendants. Anderson v. Rugged Races LLC, 496 F. Supp. 3d 1270 (D. Minn. 2020). The court concluded that the exculpatory clause in the Agreement barred any claims for ordinary negligence and that Anderson had failed to show “greater-than-ordinary negligence.” On appeal, Anderson argues (i) the exculpatory clause is unenforceable; (ii) if enforceable, it does not waive claims based on defendants’ alleged greater-than-ordinary negligence; and (iii) the summary judgment record includes evidence from which a reasonable jury could find greater-than-ordinary negligence. Defendants argue the district court properly granted summary judgment because there is insufficient evidence of greater-than-ordinary negligence. They further argue that Minnesota law does not recognize any claim other than the claims for ordinary negligence that Anderson waived in the Agreement.2
We will affirm the grant of summary judgment when the evidence viewed in the light most favorable to the nonmoving party presents “no genuine issue of material fact” from which “a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis omitted); see Fed. R. Civ. P. 56(a). “A mere scintilla of evidence is insufficient to defeat summary judgment and if a nonmoving party who has the burden of persuasion at trial does not present sufficient evidence as to any element of the cause of action, then summary judgment is appropriate.” Brunsting v. Lutsen Mountains Corp., 601 F.3d 813, 820 (8th Cir. 2010) (quotations and citations omitted).
II. Analysis
On appeal, Anderson argues that her waiver of ordinary negligence claims in the Agreement is not enforceable and, alternatively, that it does not waive claims based on greater-than-ordinary negligence. Defendants counter that the exculpatory clause is valid and enforceable and bars all of Anderson’s claims. There is a considerable body of relevant Minnesota case law on these issues.
A. Under Minnesota law, there is no common law action for “gross negligence.” See Peet v. Roth Hotel Co., 191 Minn. 151, 253 N.W. 546, 548 (1934). However, the negligence standard governing particular claims may be varied by statute or by contract. See, e.g., State v. Bolsinger, 221 Minn. 154, 21 N.W.2d 480 (1946) (criminal negligence statute), overruled on other grounds, State v. Engle, 743 N.W.2d 592 (Minn. 2008). Under Minnesota law, as in most States, “ordinary negligence” is the “failure to exercise such care as persons of ordinary prudence usually exercise under such circumstances.” Domagala v. Rolland, 805 N.W.2d 14, 22 (Minn. 2011) (quotation omitted). Gross negligence is “substantially and appreciably higher in magnitude than ordinary negligence … [and is] the absence of slight diligence, or the want of even scant care.” Bolsinger, 21 N.W.2d at 485.
In the Race Participant Agreement, Anderson waived all claims resulting from “the INHERENT RISKS of the Event or the ORDINARY NEGLIGENCE” of the defendants. Minnesota Courts call provisions of this type exculpatory clauses. In Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920 (Minn. 1982), the Supreme Court of Minnesota dismissed a fitness spa member’s negligence action, based on the exculpatory clause in her membership agreement. The Court noted that prior cases had upheld exculpatory clauses in construction contracts and commercial leases:
Even though we have recognized the validity of exculpatory clauses in certain circumstances, they are not favored in the law. A clause exonerating a party from liability will be strictly construed against the benefited party. 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. at 923 (emphasis added, citation omitted). Reversing the denial of summary judgment, the Court held:
that the exculpatory clause in Spa Petite’s membership contract was unambiguous and limited to exoneration from negligence; that there was not disparity of bargaining power; and that the clause was not void as against public policy.
Id. at 926.
In Beehner v. Cragun Corp., 636 N.W.2d 821 (Minn. Ct. App. 2001), the Minnesota Court of Appeals considered a riding stable’s exculpatory clause. Unlike the exculpatory clause in Schlobohm, which applied to “all acts of active or passive negligence,” 326 N.W.2d at 922, the clause in Beehner was limited to claims of “ordinary negligence” and expressly excluded claims based on “gross negligence and willful and wanton misconduct.” 636 N.W.2d at 825. Reversing the grant of summary judgment in favor of the riding stable, the Court held:
In a dispute over the applicability of an exculpatory clause, summary judgment is appropriate only when it is uncontested that the party benefited by the exculpatory clause has committed no greater-than-ordinary negligence . Thus, summary judgment is appropriate here only if Outback’s conduct does not, as a matter of law, rise to the level of gross negligence or wanton and willful misconduct .
Id. at 829 (emphasis added and citation omitted).
The district court treated Beehner as controlling Minnesota authority and applied the greater-than-ordinary negligence standard. Defendants argue Minnesota law does not recognize any claim other than the claims for ordinary negligence. We need not resolve that question in this case because, in granting summary judgment in favor of defendants, the district court adopted the view of this issue that is most favorable to Anderson, the non-moving party. Because we agree with the court that Anderson presented insufficient evidence of greater-than-ordinary negligence, we assume without deciding that this standard is consistent with controlling Minnesota law.
In addition to arguing that greater-than-ordinary negligence is the correct standard, Anderson argues that the exculpatory clause at issue is unenforceable because it is ambiguous in scope: Minnesota law imposes on defendants as the landowner and operator of a for-profit recreational activity a duty to exercise a “high degree of care” to ensure that invitees are not exposed to unreasonable risks of harm. Hanson v. Christensen, 275 Minn. 204, 145 N.W.2d 868, 873-74 (1966) ; see
Olmanson v. LeSueur Cty., 693 N.W.2d 876, 881 (Minn. 2005) ; Isler v. Burman, 305 Minn. 288, 232 N.W.2d 818, 821 (1975). This argument is without merit. First, the “ordinary negligence” clause in the Agreement is less, or at least no more ambiguous than the exculpatory clause held to be un ambiguous in Schlobohm, 326 N.W.2d at 922-23 (the term “all acts of active or passive negligence … specifically purports to exonerate Spa Petite from liability for acts of negligence and negligence only”), and Beehner, 636 N.W.2d at 827. Second, when the duty to exercise this high degree of care applies, it is an ordinary negligence duty to exercise “reasonable care, meaning care commensurate with the risks involved.” Hanson, 145 N.W.2d at 873. Thus, that the waiver of claims for “ordinary negligence” includes this type of duty for landowners and for-profit operators does not make the waiver ambiguous. We agree with the district court that the Agreement’s exculpatory clause is unambiguously limited to ordinary negligence. As in Beehner, Anderson was a voluntary participant in a recreational activity that does not “implicate[ ] a public or essential service.” 636 N.W.2d at 828.
B. Anderson claims defendants exhibited greater-than-ordinary negligence in the design, construction, supervision, and maintenance of the Bang the Gong obstacle. The district court properly rejected these claims.
On appeal Anderson first argues there was greater-than-ordinary negligence in the design of the Bang the Gong challenge based on expert testimony supporting her claim that a deeper level of water in the landing pit could have prevented her injury. However, Bang the Gong was not a new obstacle for the 2016 Rugged Maniac race. Rather it was tested, used in multiple previous events, and modeled on an earlier obstacle that was safely used for years. We agree with the district court that “[t]he fact that thousands of participants — many of whom undoubtedly outweighed Anderson — jumped into the landing pit without incident is compelling evidence that the water level was not unreasonably low.” Anderson, 496 F. Supp. 3d at 1285.
Anderson also argues the summary judgment record supports her claim of greater-than-ordinary negligence in the construction process for the 2016 event. Like the district court, we disagree. Rugged Races followed a detailed protocol when constructing Bang the Gong for this and other events, described in deposition testimony by Rugged Races’ Senior Vice President, Bradford Scudder, and a construction crew member from the 2016 race, Christian Melnik. The process involved digging a pit, removing debris, lining the pit with a tarp, filling it with water, and then constructing the platform participants would use to jump into the pit. The protocol requires crew members to inspect the pit three separate times before it is filled to ensure no rocks, roots, or other debris are present. They conduct two subsequent visual inspections after the pit is filled, including on the morning of the race. Although there was no supporting documentation, Melnik testified that he was not aware that the construction crew ever deviated from this protocol before, during, or after the 2016 race. Anderson, 496 F. Supp. 3d at 1274. The district court properly concluded that such evidence would be admissible as evidence of Rugged Races’ routine. See Fed. R. Evid. 406 (court may admit evidence of routine practice “regardless of whether it is corroborated or whether there was an eyewitness”).
Anderson concedes the admissibility of the Rule 406 evidence, but argues such “self-serving assertion[s]” are not dispositive. True enough. But this testimony by persons familiar with and involved in the process was strong evidence that Rugged Races complied with its established routine of carefully constructing and inspecting the obstacle before the race. Anderson’s disputed evidence of a submerged rock3 was insufficient to create a material issue of fact that would meet her burden to prove that defendants were liable for greater-than-ordinary negligence. Anderson, 496 F. Supp. 3d at 1280. We agree with the district court that Anderson offered “little more than speculation” supporting her contentions that the rock was present before the pit was filled and would have been discovered had the construction crew not acted with greater-than-ordinary negligence. Id. at 1284. To avoid summary judgment, the nonmoving party must provide “sufficient probative evidence” based on “more than mere speculation [or] conjecture.” Ball v. City of Lincoln, 870 F.3d 722, 727 (8th Cir. 2017) (quotation omitted).
We further agree with the district court that Anderson submitted insufficient evidence to establish that defendants acted with greater-than-ordinary negligence during or after the race. The district court estimated that Anderson was injured at approximately 1:00 pm.4 The court carefully reviewed when defendants would have learned that four other participants reported similar injuries before concluding that the record did not support Anderson’s contention that Rugged Races knew or should have known of a rock in the landing pit in time to take preventive action. 496 F. Supp. 3d at 1278-80. Anderson argues prior notice is irrelevant because Rugged Races created the danger. Rugged Races constructed the obstacle, but there is no evidence that Rugged Races placed a dangerous rock in the pit, only circumstantial evidence that it failed to discover a hidden danger. Under Minnesota law, landowners are not “insurers of safety of their patrons.” Hanson, 145 N.W.2d at 873. “Unless the dangerous condition actually resulted from the direct actions of a landowner or his or her employees, a negligence theory of recovery is appropriate only where the landowner had actual or constructive knowledge of the dangerous condition.” Rinn v. Minn. State Agric. Soc’y, 611 N.W.2d 361, 365 (Minn. Ct. App. 2000).
Here, the first two injuries were similar to Anderson’s and occurred earlier, but neither injury report mentioned a rock in the pit, only that the injured participant “landed wrong” or “jumped into … uneven terrain.” The other three injuries, including Anderson’s, occurred between 1:00-1:30pm. The injury reports reported there was a rock in the pit, but Rugged Races was not made aware of these reports in time to put it on notice that preventive action might be needed. See
Otis v. First Nat’l Bank of Minneapolis, 292 Minn. 497, 195 N.W.2d 432, 433 (1972) (no actual or constructive notice when hazard only present for 20 minutes). Because “an act or omission is not negligent unless the actor had knowledge or notice that it involves danger to another,” Rugged Races’ failure to remove the rock from the landing pit before Anderson’s injury is not a sufficient showing of greater-than-ordinary negligence. Rue v. Wendland, 226 Minn. 449, 33 N.W.2d 593, 595 (1948). And given the nature of the obstacle and the evidence of Rugged Races’ careful inspection procedures when creating the obstacle, the record does not provide sufficient evidence that any uneven terrain in the landing pit was the product of greater-than-ordinary negligence.
Finally, Anderson argues that Rugged Races failed to maintain the water level in the Bang the Gong pit to the depth required by its protocol, a further example of greater-than-ordinary negligence. The district court declined to consider this issue because Anderson first raised it at the summary judgment hearing. 496 F. Supp. 3d at 1285 n.11. As Anderson “did not sufficiently present [the] argument” to the district court, we will not consider it on appeal. Cole v. Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am., 533 F.3d 932, 936 (8th Cir. 2008).
III. Conclusion
In summary, our careful review of the record confirms the district court did not err in concluding Anderson failed to establish greater-than-ordinary negligence as a matter of law. Accordingly, her negligence claims are waived by the valid and enforceable exculpatory clause in the Race Participant Agreement. The judgment of the district court is affirmed.
——–
Notes:
1 The Honorable Patrick J. Schiltz, now Chief Judge of the United States District Court for the District of Minnesota
2 Defendants also argue (i) Anderson waived any claim based on greater-than-ordinary negligence by alleging only gross negligence in her Complaint; and (ii) Anderson’s claims are barred by the Minnesota doctrine of primary assumption of the risk. Given our resolution of Anderson’s appeal, we need not consider these issues.
3 Though there was no physical evidence of a submerged rock in the landing pit, Anderson and the other injured participants described “feeling a rock or similar object” when they landed. In ruling on defendants’ motion for summary judgment, the district court properly concluded it “therefore must assume that a rock was present in the landing pit of Bang the Gong.” Anderson, 496 F. Supp. 3d at 1278 n.7.
4 The district court estimated 1:00pm “based on the fact that Anderson did not report her injury until 1:15 pm, after she had hurt her foot, crawled out of the pit, reported her need for medical attention, waited for a medic to arrive, and been transported to the medical tent.” Anderson, 496 F. Supp. 3d at 1275 n.4.
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Failing to let go, “volunteer” teacher falls of zip line & recovers $1,650,000
Posted: October 27, 2014 Filed under: Challenge or Ropes Course, Minnesota, Zip Line | Tags: challenge course, Linda Timmer, Platform, Ropes course, Shamineau Adventures, zip line 2 CommentsNo defenses, no release, just a trail and an appeal which the plaintiff lost. Have EVERYONE sign a release, including staff and volunteers of your guests
Timmer, et al., v. Shamineau Adventures, 2005 Minn. App. Unpub. LEXIS 576
State: Minnesota
Plaintiff: Linda Timmer and her husband Jere Timmer
Defendant: Shamineau Adventures
Plaintiff Claims: Negligence
Defendant Defenses:
Holding: For the Plaintiff, final damages of $1,650,000
Year: 2005
There is not a lot of factual information to be learned in this case. There are several procedural issues that can be helpful in understanding the law as well as identification of a gaping hole in the risk management planning for this defendant. A risk-management weakness that cost the defendant $1,650,000.
The plaintiff was a teacher employed by the school district that was attending the ropes’ course. The case does not state whether this is a worker’s comp subrogation case or whether the plaintiff was working at the time and covered by worker’s compensation.
The ropes course director asked the plaintiff if she wanted to assist with the students at the zip line. The court went into a detailed explanation of the zip line and how it operated. Basically, the zip line was 300 feet long going from a tower to a platform across a valley. The zip line sagged in the middle so the riders slowed as the approached the platform going uphill.
The plaintiff was given a few minutes of instruction and was shown how to detach riders from the zip line on the platform. A student arrived at the platform, and the plaintiff grabbed her and attempted to disconnect her from the zip line. The student started to drift backwards still attached, and the plaintiff grabbed her. The student and plaintiff drifter backwards to the low point of the zip line which left the plaintiff holding on 25’ above the ground. The plaintiff let go and fell suffering injuries.
The plaintiff sued, and the defendant lost at trial. The jury awarded $4.5 million to the plaintiff and split the damages 60% of the liability to the defendant and 40% to the plaintiff. This resulted in an award for the plaintiff of $2,783,949.
Analysis: making sense of the law based on these facts.
The issues on appeal were whether the defense had time to deal with the new plaintiff’s expert witness, whether the jury apportioned the damages correctly, whether a motion for the new trial should have been granted and whether all of this should have allowed the defense to have a continuance. All of those issues are discretionary. That means the judge has discretion to make decisions and unless those decisions are so grossly out of line the appellate court will not over turn them.
One issue that is worth examining, and that is the remittitur. A remittitur is a reduction in the amount awarded by the jury by the judge. The jury awarded $2,783,949. The judge reduced the amount to $1,650,000 in an effort to resolve some of the issues in post-trial motions. Normally, this is done by the judge because the amount awarded by the jury exceeds the amount the plaintiff asks for. The alternative is the judge orders a new trial. This places the plaintiff in a quandary. Try again at trial to get more money or take what the judge has offered.
Here the defense was arguing the amount awarded was excessive, and the other issues enumerated above and the plaintiff had to accept less money than awarded or go through the entire process again.
The appellate court agreed with the trial court on all of its decisions. None of the arguments presented on appeal by the defendant concerned defenses so it is difficult to determine what was a defense at trial.
So Now What?
The hole that is evident in this mess is the plaintiff did not sign a release. A release might have barred a claim by the plaintiff and by any insurance company or worker’s compensation insurance company under its subrogation rights. A release might have stopped this lawsuit. Minnesota has strict requirements on how a release should be written, and a badly written release would have not been effective.
Many times “staff” of the group coming to the event are skipped in the paperwork process. No one should be allowed on the property without signing a release. The staff could have signed up on line or when they arrived. Their releases could have been part that was handed back in when the parents signed releases for their kids. A release for a minor would not have worked in Minnesota if it went that far, but even so, releases may stop someone from suing who is unsure of the legal value of a release.
Always have a well-written release signed by everyone coming to your business, program or activity. That one release might have been worth $1,650,000, interest, costs and the legal fees to defend the case.
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Timmer, et al., v. Shamineau Adventures, 2005 Minn. App. Unpub. LEXIS 576
Posted: October 23, 2014 Filed under: Legal Case, Minnesota, Zip Line | Tags: Appeal, Camp Shamineau, challenge course, Linda Timmer, Minneapolis, Minnesota, Minnesota Court of Appeals, Minnesota Supreme Court, Platform, Ropes course, Shamineau Adventures, Trial court, zip line Leave a commentTimmer, et al., v. Shamineau Adventures, 2005 Minn. App. Unpub. LEXIS 576
Linda Timmer, et al., Respondents, vs. Shamineau Adventures, Appellant.
A04-2458
COURT OF APPEALS OF MINNESOTA
2005 Minn. App. Unpub. LEXIS 576
December 13, 2005, Filed
NOTICE: [*1] THIS OPINION WILL BE UNPUBLISHED AND MAY NOT BE CITED EXCEPT AS PROVIDED BY MINNESOTA STATUTES.
SUBSEQUENT HISTORY: Review denied by Timmer v. Shamineau Adventures, 2006 Minn. LEXIS 73 (2006)
Subsequent appeal at, Remanded by Timmer v. Shamineau Adventures, 2007 Minn. App. Unpub. LEXIS 351 (2007)
PRIOR HISTORY: Morrison County District Court. File No. CX-03-261. Hon. John H. Scherer.
DISPOSITION: Affirmed.
COUNSEL: For Appellant: Robert G. Haugen, Jason M. Hill, Johnson & Lindberg, P.A., Minneapolis, MN.
For Respondent: Luke M. Seifert, Michael, T. Milligan, Heidi N. Thoennes, Quinlivan & Hughes, P.A., St. Cloud, MN.
JUDGES: Considered and decided by Willis, Presiding Judge, Randall, Judge, and Huspeni, Judge. 1
1 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
OPINION BY: RANDALL
OPINION
UNPUBLISHED OPINION
RANDALL, Judge
This is an appeal from the district court order denying a motion for JNOV but granting a new trial on damages and a conditional remittitur of the damages awarded for future pain and suffering. After respondents accepted the conditional remittitur, appellant brought this appeal contending: (a) it is entitled to a Schwartz hearing based on a juror’s allegations of misconduct in reaching the verdict; (b) it is entitled to an unconditional new trial because of juror misconduct on the face of the special [*2] verdict form; (c) it is entitled to a new trial on liability due to the erroneous admission into evidence of an unqualified expert’s opinions; and (d) the court erred in allowing respondent’s expert to testify to opinions undisclosed prior to trial and denying appellant’s request for a continuance. Respondents filed a notice of review arguing that the conditional remittitur was unsupported by the evidence. We affirm on all issues.
FACTS
This appeal stems from a tort action brought by respondents Linda Timmer and her husband Jere Timmer (collectively “respondents”) against appellant Shamineau Adventures. Appellant is one of five subdivisions that are collectively referred to as “Shamineau Ministries.” Appellant’s subdivision consists of a ropes course that includes various elements and obstacle courses. One of the elements of the ropes course is a zip line that consists of a 300-foot cable that is secured to a tower structure on a hill, traverses a valley, and ends at a tree located at a lower point on the opposite side. The cable drapes across the valley, and gradually rises as it nears the landing area in front of the tree to which it is attached. The cable is threaded through [*3] a pulley system and a lanyard rope is attached to the pulley. At the end of the lanyard is a carabiner that has a hinged gate on one side that is spring loaded. A zip line rider is specially body-harnessed by camp personnel, and connected to another carabiner clip attached to the harness. Both carabiners are equipped with screw-lock devices and spring tension hinges that prevent them from opening accidentally.
To ride the zip line, the rider’s harness carabiner is attached to the zip line carabiner. The rider then steps from the higher end platform, gliding down the cable across the valley. The rider slows as the calibrated slack in the cable and the resulting incline brings the rider to a slow landing on the gradual upslope of the lower end hill. The harness carabiner is then disconnected from the zip line by an assistant stationed at the lower end of the hill, and the pulley and lanyard assembly is walked back up to the higher end platform by the rider using a tow-rope attached to the lanyard.
In October 2001, a group of students and teachers from the Little Falls School District went to Camp Shamineau. Included in the group was Timmer, a special education teacher in the Little [*4] Falls School District. On October 11, while “roving” the ropes course and generally supervising her students, Timmer was approached by Troy Zakariasen, the ropes course director. Zakariasen asked Timmer if she would be willing to help uncouple students at the receiving end of the zip line while he briefly attended to other duties. Timmer agreed, and Matthew Stanghelle, a Shamineau staff member, showed Timmer how to unhook the zip line riders. Stanghelle spent approximately five minutes with Timmer, showing her the procedure by demonstrating on incoming zip line riders. Stanghelle then left the landing area to assist other students, teachers, and staff. Although Timmer had been to Camp Shamineau three or four times prior to October 11, she had never attended any training relative to the ropes course, which typically includes two to three weeks of training riders.
After Stanghelle left, the next rider on the zip line was 14-year old Tracie Boser. When Boser arrived at the landing area, Timmer grabbed Boser and tried to unhook her from the harness. As Timmer tried to unscrew the safety harness, Boser began drifting backwards. Timmer instinctively grabbed onto Boser to prevent her from [*5] coasting back to the sender, but Timmer was unable to maintain her footing. Boser then glided back toward the middle of the zip line with Timmer hanging onto Boser’s harness. When they reached the mid-point, approximately 25 feet above the valley, Timmer was unable to maintain her grip on the harness, and she fell to the ground, sustaining serious injuries. Timmer brought this tort action alleging negligence on the part of Shamineau Adventures. Jere Timmer filed a claim for loss of consortium.
Four days prior to the commencement of trial, respondents served upon appellant a memorandum issued by Richard Gauger, an engineer retained by respondents to serve as an expert witness. Gauger’s memorandum concluded that, in his opinion, the landing area of the zip line was unsafe, and that the landing area should involve one or more trained persons working together to assist the rider in arriving safely. Appellants moved for an order excluding Gauger’s new opinions, or, in the alternative, for a continuance due to the untimely disclosure of the new evidence. The district court denied the motion, holding that the issue of the landing area could reasonably have been anticipated in light of the [*6] nature of the case.
A jury trial was held from June 21, 2004, through June 29, 2004. At trial, Gauger testified that he has a bachelor’s degree in industrial engineering, and that he is a consulting engineer licensed as a professional engineer. Gauger also testified that his work history included assisting with design and development of construction projects, and some investigative work with regard to recreational activities. Appellant objected to Gauger’s testimony on the basis that he was unqualified as an expert witness. The district court overruled the objection, and Gauger testified in accordance with his June 17 memorandum, that the zip line was dangerous because the slope exceeded the American with Disabilities Act (ADA) standards for ramps and other standards typically used on construction projects.
The jury heard extensive testimony concerning Timmer’s injuries and her present physical condition. Dr. Joseph Nessler testified that as a result of her accident, Timmer suffered “multiple injuries, including pelvic fractures, sacral or tailbone fractures, spinal fracture, left femur fracture, left tibia fracture, and right calcaneus fracture.” Dr. Nessler, Dr. Jeffrey Gerdes, [*7] and Dr. Gregory Schlosser all testified that Timmer suffers from various permanent disabilities as a result of the accident, and all agreed she will have problems lifting, bending, stooping, twisting, and standing. Timmer testified that she is medically disabled and was forced to retire from teaching as a result of the fall.
On the verdict form, the jury determined that appellant was 60% at fault and Timmer was 40% at fault. The jury awarded appellant damages in excess of $ 4.5 million, and after applying the mathematical formula called for by the jury allocation of fault, the net verdict to respondents was $ 2,783,949. Shortly thereafter, James Albrecht, a juror in the case, sent a letter to the district court and the attorneys for both parties. Albrecht stated that the jury had made a mistake in selecting the damages. According to Albrecht, the jury had selected the damages believing that respondents would recover 20% of the damages awarded; deriving this figure by taking appellant’s 60% fault and subtracting respondent’s 40% fault. Appellant subsequently moved the district court for a Schwartz 2 hearing based on Albrecht’s letter. The district court first ruled the letter [*8] inadmissible, and then denied the motion for a Schwartz hearing.
2 See Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 104 N.W.2d 301 (1960).
Following the district court’s order denying the request for a Schwartz hearing, appellant moved for a new trial and JNOV. The district court denied the motion for JNOV, but granted a new trial on damages and a conditional remittitur of the damages awarded for future pain and suffering, reducing the amount of the recoverable verdict from $ 3,000,000 to $ 1,650,000. Respondents accepted the conditional remittitur. Shamineau appealed. Respondents then served and filed their own notice of review objecting to the remittitur.
DECISION
I.
Appellant argues that it is entitled to a Schwartz hearing based on Albrecht’s letter stating that the jury had made a mistake in selecting the damages. [HN1] “The standard of review for denial of a Schwartz hearing is abuse of discretion.” State v. Church, 577 N.W.2d 715, 721 (Minn. 1998). [*9]
In Schwartz, the supreme court established a method for inquiring into allegations of juror misconduct. 258 Minn. at 328, 104 N.W.2d at 303. A Schwartz hearing may also be conducted to correct a clerical error in a jury verdict. Erickson by Erickson v. Hammermeister, 458 N.W.2d 172, 175 (1990), review denied (Minn. Sept. 20, 1990).
[HN2] Although trial courts are urged to be fairly lenient in the granting of Schwartz hearings, their purpose is to determine juror misconduct, such as outside influence improperly brought to bear on jurors. The purpose of a Schwartz hearing does not include the correction of a miscomprehension by a juror or jurors. The assertion that the jury was confused and did not understand the effect of the verdict has been rejected as a basis for a Schwartz hearing. Jurors may not impeach their verdict on the basis that they did not understand the legal effect of that verdict.
Senf v. Bolluyt, 419 N.W.2d 645, 647 (Minn. App. 1988) (quoting Frank v. Frank, 409 N.W.2d 70, 72-73 (Minn. App. 1987), review denied (Minn. Sept. 30, 1987)), review denied (Minn. Apr. 15, 1988).
[*10] Here, the district court reviewed the letter for purposes of the Schwartz hearing motion, and concluded that:
There has been no evidence of juror misconduct in this matter. The evidence received did not relate to actions outside of the deliberations that would constitute misconduct. On the contrary, the evidence reveals that during deliberations the jury may have misunderstood or misapplied the law as presented in the jury instructions. However, under Minnesota cases, this does not constitute juror misconduct such that a Schwartz hearing must be held.
The record supports the district court’s conclusion that there were no clerical errors and no evidence of jury misconduct. Albrecht’s letter fails to demonstrate evidence of juror misconduct, but, instead, indicates that the jury may have misapplied the law. The district court properly denied appellant’s request for a Schwartz hearing. See Senf, 419 N.W.2d at 648.
For purposes of the motion, appellant concedes that even if Albrecht is correct and that the jury misunderstood the instructions regarding comparative fault, that “misunderstanding” is not grounds for a new trial. Instead, appellant [*11] argues that the letter is evidence of a “compromise verdict,” and that a compromise verdict is grounds for a new trial. Appellant argues that because a compromise verdict constitutes juror misconduct, it is entitled to a Schwartz hearing.
[HN3] A “compromise” verdict occurs when the jury awards an amount that reflects a compromise between liability and proven damages. See Schore v. Mueller, 290 Minn. 186, 190, 186 N.W.2d 699, 702 (1971). When there is an indication that inadequate damages were awarded because the jury compromised between the right of recovery and the amount of damages, a new trial on damages is appropriate. Seim v. Garavalia, 306 N.W.2d 806, 813 (Minn. 1981).
We agree with the district court that [HN4] just a claim that the jury misapplied jury instructions in apportioning damages does not equate to a compromised verdict. Case law uniformly revolves around allegations by plaintiffs that damages were compromised too low based on proven liability. See, e.g., Vermes v. American Dist. Tele. Co., 312 Minn. 33, 44, 251 N.W.2d 101, 106-07 (Minn. 1977) (holding that because the jury simply misunderstood proof of damages and gave [*12] an inadequate award, it was not a compromise verdict);Schore, 290 Minn. at 190, 186 N.W.2d at 702 (remanding for a new trial because the jury’s award of damages was not supported by the evidence in light of the plaintiff’s proven damages and represented a compromise verdict); Kloos v. Soo Line R.R., 286 Minn. 172, 177-78, 176 N.W.2d 274, 278 (1970) (ordering a new trial on the basis that the jury’s award of inadequate damages constituted a compromise verdict). This case is novel. Appellant does not argue that the damages were inadequate, but rather argues that the damages awarded were in excess of the jury’s intent. We conclude that even if the jury did not fully grasp the mathematics of comparative negligence (an unfortunate but true syndrome that goes back decades to the origins of comparative negligence), plaintiffs and defendants have understood for all those years that if even after careful argument by attorneys in their closing arguments, juries do not exactly “get” comparative negligence. It is not “misconduct” and does not call for a Schwartz hearing.
Appellant next argues that in light of Albrecht’s letter indicating that the jury made [*13] a mistake in apportioning damages, its due process rights to a fair trial were violated. Appellant argues that except for purposes of the Schwartz hearing motion, the district court held that under Minn. R. Evid. 606(b), 3 the letter was inadmissible for purposes relative to other post-trial motions, such as a motion for a new trial, remittitur, or JNOV. Appellant argues that it cannot be granted a new trial for juror misconduct without the excluded evidence, and a Schwartz hearing is only available when admissible evidence of juror misconduct is already in the record to justify the proceeding. Thus, appellant contends that the district court’s ruling of inadmissibility under Rule 606(b) denied it the opportunity to prove jury misconduct through a Schwartz hearing, thereby depriving appellant of the opportunity to develop a record supporting its right to a new trial.
3 Minn. R. Evid. 606(b) states:
[HN5] Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent or to dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention, or whether any outside influence was improperly brought to bear upon any juror, or as to any threats of violence or violent acts brought to bear on jurors, from whatever source, to reach a verdict. Nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.
[*14] [HN6] The Minnesota Supreme Court set forth the rationale for the exclusion of juror testimony about a verdict or the deliberation process. See State v. Pederson, 614 N.W.2d 724, 731 (Minn. 2000). In Pederson, the supreme court explained: “The rationale for the exclusion of juror testimony about a verdict or the deliberation process is to protect juror deliberations and thought processes from governmental and public scrutiny and to ensure the finality and certainty of verdicts.” Id. The court further explained the rationale of rule 606(b) by noting the concern that jurors be protected from harassment by counsel after the verdict. Id. These are legitimate public policy concerns that support Minn. R. Evid. 606(b). The accepted fact that from time to time juries make mathematical mistakes in rendering their verdict does not rise to the constitutional level of a due process violation of a party’s right to a fair trial. In essence, this second argument of appellant is a remake of the first argument that there was a compromise verdict. Since we conclude there was not a compromise verdict, the judge properly did not order a Schwartz hearing based on either theory.
[*15] II.
Appellant argues that it is entitled to an unconditional new trial due to evidence of juror misconduct on the face of the special verdict form. Appellant argues that the special verdict form is evidence of misconduct because, appellant claims, certain listed damages are irreconcilable. Specifically, appellant points out that: (1) the jury awarded Linda Timmer $ 3,000,000 in future pain and suffering, but only $ 150,000 in past pain and suffering; and (2) Linda Timmer’s award of $ 150,000 for past pain and suffering is the same as Jere Timmer’s past loss of consortium. Appellant asserts that the only logical explanation for the jury’s irrational damages awards is that the jury carefully attempted to engineer respondents’ net recovery, which constitutes misconduct.
[HN7] Anew trial may be granted when, among other things, the verdict is not supported by the evidence, errors of law occurred at the trial, or the damages awarded are excessive. Minn. R. Civ. P. 59.01. The district court has the discretion to grant a new trial and this court will not disturb its decision absent a clear abuse of that discretion. Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990). [*16] An appellate court will uphold the denial of a motion for a new trial unless the verdict “is manifestly and palpably contrary to the evidence, viewed in a light most favorable to the verdict.” ZumBerge v. N. States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992).
The district court did take note of the difference between future and past pain and granted appellant’s motion for a new trial on the issue of future pain and suffering if respondents declined the court’s remittitur reducing that portion of the verdict from $ 3,000,000 to $ 1,650,000. However, respondents accepted the court’s remittitur, and that benefited appellants in the amount of $ 1,350,000. As an appellate court on review, we cannot now conclude that the remaining verdict is too high as a matter of law. Appellant is not entitled to a new trial based on its allegation that jury misconduct in calculating damages denied it of its right to a fair trial.
III.
Appellant argues that under the Frye-Mack, Daubert, and Kumho standards for expert testimony, it is entitled to a new trial because the district court erroneously admitted Gauger’s expert [*17] testimony. 4 [HN8] The decision to admit expert opinion testimony is within the broad discretion of the district court. Dunshee v. Douglas, 255 N.W.2d 42, 47 (Minn. 1977). To obtain a new trial based on evidentiary error, a claimant must show not only that the ruling was erroneous, but also that it resulted in prejudice. Kroning v. State Farm Auto Ins. Co., 567 N.W.2d 42, 46 (Minn. 1997).
4 See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); State v. Mack, 292 N.W.2d 764 (Minn. 1980); Daubert v. Merrel Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999).
[HN9] Recently, the Minnesota Supreme Court reaffirmed its adherence to the Frye-Mack standard. See Goeb v. Tharaldson, 615 N.W.2d 800, 813-14 (Minn. 2000). 5 Under the Frye-Mack standard, a novel scientific theory may be admitted if two requirements are satisfied. [*18] Id. at 814. But if the expert’s opinions do not relate to “novel scientific methods,” a Frye-Mack analysis is not necessary. See State v. DeShay, 645 N.W.2d 185, 191 (Minn. App. 2002) (holding that a Frye/Mack analysis was not necessary where expert testimony based on the ten-point gang-identification criteria did not constitute novel scientific evidence), aff’d 669 N.W.2d 878 (Minn. 2003).
5 The court in Goeb also refused to adopt the principals of Daubert and its progeny, and, therefore, appellant’s reliance on the Daubert is misguided. 615 N.W.2d at 814-15.
Based on the scope of Gauger’s testimony, his opinions related to the safety of the zip line landing site, not the actual zip line itself, as claimed by appellant. An expert opinion as to whether the zip line landing area was unsafe, and whether there is something in the condition of the work site that is inherently dangerous does not involve a novel scientific theory. [*19] Gauger’s expert opinion testimony did not constitute “novel scientific testimony” and a complete Frye/Mack analysis was not necessary.
Although a Frye/Mack analysis was not necessary to be admissible, Gauger’s testimony must at least meet the requirements of Minn. R. Evid. 702. This rule provides [HN10] “if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Minn. R. Evid. 702.
Appellant contends that the district court abused its discretion by admitting Gauger’s testimony, claiming Gauger was not qualified to be an expert witness. We affirm the district court. The district court found that: (1) Gauger is a professional engineer and has completed investigative work involving recreational facilities; (2) Gauger has reviewed hundreds of sites for safety purposes; and (3) Gauger has a background and familiarity with work sites and recreational facilities such as playgrounds and the Camp Snoopy amusement park at the Mall of America. The record [*20] reflects that Gauger visited the accident site on more than one occasion and viewed the zip line and landing area in use. The record reflects that Gauger reviewed a manual from the camp and criteria developed by the Association of Challenge Course Technology. Gauger testified extensively as to his opinion that the landing area was unsafe, and explained his reasoning. We find there was proper foundation for Gauger’s expert opinions, and the district court properly admitted his testimony.
IV.
Appellant argues that it is entitled to a new trial because the district court failed to grant appellant’s motion for a continuance after respondents’ late disclosure of Gauger’s opinion testimony. [HN11] When a district court denies a continuance at trial, this court reviews the ruling for a clear abuse of discretion. Dunshee v. Douglas, 255 N.W.2d 42, 45 (Minn. 1977). Denial of a continuance shall be reversed only if the decision prejudiced the outcome of the trial. Chahla v. City of St. Paul, 507 N.W.2d 29, 31-32 (Minn. App. 1993), review denied (Minn. Dec. 14, 1993).
The record shows that, four days prior to the commencement of trial, respondents served [*21] upon appellant a memorandum issued by Gauger stating his opinions that the landing area was unsafe. In denying appellant’s motion for a new trial on the basis of the district court’s refusal to grant a continuance, the district court stated that “the late or new disclosures regarding Mr. Gauger’s testimony were really nothing more that a re-disclosure of what had previously been disclosed.” The court further noted that:
Previous disclosures indicated that Mr. Gauger felt that the workplace or landing site was unsafe because Linda Timmer was required to stand on a slope. This opinion did not change. The only disclosure that appeared to be at all new and different was a reference to the ADA slope percentage recommendations, and that Mr. Gauger adopted this slope percentage as a reasonable standard.
In addressing appellant’s claim that it could not respond to the new information because of the fact that its expert had already been deposed and the testimony was established, the court stated:
the fact of the matter is that [appellant’s] expert simply expressed the opinion that the zip line was safe and reasonable, and that the design of the landing area was necessary for [*22] the zip line to function properly. He did not offer any opinion as to what would have been a safe grade for the landing area of the zip line. If there had been a disagreement as to the actual percentage of slope or the standard to be applied, then there may be some basis for the argument. However, that is clearly not the situation at hand. Additionally, [appellant] was aware that the slope grade of the landing area was a basis for the negligence claim prior to the deposition of its expert witness, Bart Broderson. [Appellant] had the opportunity to ask Mr. Broderson his opinion relative to the degree or percentage slope of the landing area. No inquiry was made. [Appellant] cannot later claim prejudice when the subsequent disclosure differed little from the prior disclosure.
The record supports the district court’s decision. We conclude the district court properly denied appellant’s motion for a continuance.
V.
As is their right, even though respondents agreed to the conditional remittitur, once appellant challenged the verdict, respondents cross-reviewed on the issue of the remittitur. Respondents argue that the district court abused its discretion by granting a conditional [*23] remittitur of the damages awarded for future pain and suffering. The district court did reduce the amount of recoverable damages by approximately $ 1,350,000. Respondents argue that reduction was uncalled for in light of the medical testimony.
[HN12] Generally, a district court has broad discretion in determining if damages are excessive and whether the cure is a remittitur. Hanson v. Chicago, Rock Island & Pac. R. Co., 345 N.W.2d 736, 739 (Minn. 1984). When a district court has examined the jury’s verdict and outlined the reasons for its decision on a motion for remittitur, an appellate court is unlikely to tamper with that decision absent an abuse of discretion. Sorenson v. Kruse, 293 N.W.2d 56, 62-63 (Minn. 1980).
In ordering the conditional remittitur, the district court explained that:
The jury awarded $ 150,000 for past pain and suffering. Approximately 2.7 years had transpired from the date of the injury to the date of trial. Therefore, the $ 150,000 award equates to $ 55,555.56 per year for her past pain and suffering. On the other hand, the jury was advised that Linda Timmer had a 29-year life expectancy. The award of $ 3,000,000 for future [*24] pain and suffering, divided among those 29 years, would result in an annual award of damages for future pain and suffering in the amount of $ 103,448.28.
The district court addressed all the of the doctors’ expert testimony on future pain and suffering, and concluded that “although the medical testimony spoke of the need for future care or treatment, and the possibility of some degeneration, there was no specific testimony regarding future pain and suffering associated with any future surgery, care, or degeneration. Thus, the district court concluded that the drastic difference between the annual damages for past pain and suffering and future pain and suffering were not supported by the record.
In support of their claim that the remittitur was an abuse of discretion, respondents cited an exhaustive list of problems or potential problems and potential problems that Timmer will experience as a direct result of the accident. Respondents present a good argument. The record does not jump out on appellate review, as a record where a lack of a remittitur would be a miscarriage of justice. But, as noted, the decision to grant or deny a conditional remittitur is a highly discretionary [*25] decision within the purview of the district judge’s examination and weighing of the evidence. We conclude the district court’s conditional remittitur was reasoned and supported by the record.
Affirmed.
Recreation Law 