Gordon Manns, et al., Appellants, vs. Afton Alps, et al., Respondents.

Gordon Manns, et al., Appellants, vs. Afton Alps, et al., Respondents. A06-752, Court of Appeals Unpublished, May 15, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-752

 

Gordon Manns, et al.,
Appellants,
 
vs.
 
Afton Alps, et al.,
Respondents.

 

Filed May 15, 2007

Affirmed

Wright, Judge

 

Washington County District Court

File No. C2-05-3064

 

Keith D. Johnson, Barristers Trust Building, 247 Third Avenue South, Minneapolis, MN  55415 (for appellants)

 

Jeffrey J. Lindquist, Pustorino, Tilton, Parrington & Lindquist, 4005 West 65th Street, Suite 200, Minneapolis, MN  55435 (for respondents)

 

 

            Considered and decided by Hudson, Presiding Judge; Randall, Judge; and Wright, Judge.

U N P U B L I S H E D  O P I N I O N

WRIGHT, Judge

In this appeal from summary judgment dismissing their negligence claim, appellants argue that the district court erred by ruling that primary assumption of risk bars their claim.  We affirm. 

FACTS

 

Appellants Gordon and Sandra Manns sued respondents Afton Alps, Inc. and Benjamin Dekarske, alleging a negligence claim arising from an accident that injured Gordon Manns (Manns) while he was on duty as a volunteer ski patroller at Afton Alps.  In January 2005, Manns and another ski patroller, Steve McShea, responded by snowmobile to a report of an injured skier.  Transporting Manns as his passenger, McShea drove the snowmobile up a ski hill in an area known as Paula's Pass/Patti's Pass[1] to reach the injured skier.  At the same time, Dekarske, an Afton Alps employee, was instructing a class of snowboarders down Paula's Pass/Patti's Pass.  Dekarske, who was demonstrating a particular technique for the class, was moving fast but in control, periodically looking uphill toward the class.  Dekarske collided with the snowmobile and injured Manns's left knee. 

            Manns is an expert skier who, at the time of the accident, had more than 25 years of ski experience.  He received training when he joined the National Ski Patrol in 1991 and had since participated in snowmobile and other refresher courses periodically.  Manns was familiar with the design, layout, and operations of Afton Alps.  Manns also was aware of the warning contained in the Afton Alps Ski Patrol Snowmobile Policy and Procedure manual to be cautious on Paula's Pass/Patti's Pass because of heavy oncoming traffic.

            Dekarske had been a snowboard instructor for Afton Alps since November 2003.  He had received training and certification as a snowboard instructor from the American Association of Snowboard Instructors.  Like Manns, Dekarske considered himself an expert.

            Following discovery, Afton Alps and Dekarske moved for summary judgment, which the district court granted in February 2006.  Dismissing Manns's negligence action, the district court concluded that Manns primarily assumed the inherent risk of a collision, which gave rise to his injuries.  This appeal followed.

D E C I S I O N

            On review of a district court's decision to grant summary judgment, we consider whether there are any genuine issues of material fact and whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  Mere averments set forth in the pleadings are insufficient to counter a motion for summary judgment.  Minn. R. Civ. P. 56.05.  A genuine issue of material fact does not exist when the nonmoving party presents evidence that creates merely a metaphysical doubt as to a factual issue or evidence that is not sufficiently probative as to permit reasonable people to draw different conclusions regarding an essential element of that party's case.  DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).  Rather, there must be evidence sufficient to establish an essential element on which the nonmoving party bears the burden of proof.  Id.  Therefore, to oppose a motion for summary judgment successfully, the nonmoving party is required to "extract specific, admissible facts from the voluminous record" that show that a genuine issue of material fact exists.  Kletschka v. Abbott-Northwestern Hosp., Inc., 417 N.W.2d 752, 754 (Minn. App. 1988), review denied (Minn. Mar. 30, 1988).  Summary judgment shall be granted if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to judgment as a matter of law."  Minn. R. Civ. P. 56.03.

            A defendant in a negligence action ordinarily is entitled to summary judgment when the record reflects a complete lack of proof on an essential element of the claim.  Gradjelick v. Hance, 646 N.W.2d 225, 230 (Minn. 2002).  To prevail on a negligence claim, a plaintiff must demonstrate that (1) a duty of care existed, (2) the defendant breached this duty, (3) the defendant's breach of duty was the proximate cause of an injury to the plaintiff, and (4) the plaintiff did in fact suffer an injury.  Id. 

Manns argues that the district court erred in concluding that his primary assumption of the risk of collision negated Dekarske's duty of care.  Minnesota law recognizes two types of assumption of riskprimary and secondary.  Swagger v. City of Crystal, 379 N.W.2d 183, 184 (Minn. App. 1985), review denied (Minn. Feb. 19, 1986).    Primary assumption of risk completely bars a plaintiff's recovery because it negates a defendant's duty of care.  Schneider v. Erickson, 654 N.W.2d 144, 148 (Minn. App. 2002).  Secondary assumption of risk constitutes a form of contributory negligence, which apportions fault between the parties.  Id. 

Before addressing primary assumption of risk, we consider whether Dekarske owed a duty to Manns.  See Baber v. Dill, 531 N.W.2d 493, 495 (Minn. 1995) ("If no duty exists there is no need to determine whether a person assumed the risk thus relieving the defendant of the duty.").  The parties do not dispute, and we agree with, the district court's conclusion that as a matter of law Dekarske had a general duty of care to avoid collisions while snowboarding and that Afton Alps would be vicariously liable for Dekarske's torts.[2] 

A plaintiff has undertaken primary assumption of risk when, with knowledge and appreciation of the risk, the plaintiff voluntarily engages in that risk rather than avoiding it.  Wagner v. Thomas J. Obert Enters., 396 N.W.2d 223, 226 (Minn. 1986).  When a plaintiff participates in a sport, the plaintiff undertakes primary assumption of risk with respect to inherent or obvious hazards of the sport.[3]  Id.  But primary assumption of risk does not negate the duty of a defendant who causes dangers other than the hazards inherent or obvious to a sport.  Id.  A defendant remains liable for conduct that is "so reckless or inept as to be wholly unanticipated."  Moe v. Steenberg, 275 Minn. 448, 451, 147 N.W.2d 587, 589 (1966); see Rusciano v. State Farm Mut. Auto. Ins. Co., 445 N.W.2d 271, 272-73 (Minn. App. 1989) (holding that plaintiff who stepped out in front of vehicle in game of "chicken" assumed risk of being hit, but not enlarged risk that driver would accelerate before hitting plaintiff).  Whether the risks giving rise to a plaintiff's injuries are inherent to the sporting activity is a question for the fact-finder except when the evidence is conclusive.  Schneider, 654 N.W.2d at 151.

Manns's injuries arose out of risks inherent to participating in the ski patrol, namely, the risk of colliding with a skier or snowboarder when riding a snowmobile up an active ski hill in response to an emergency.  The undisputed facts establish that, at the time of the accident, Manns considered himself an experienced and expert skier.  He had received snowmobile training and had participated in refresher courses.  Manns was familiar with the design, layout, and operations of the Afton Alps ski hill, and he was well aware of the risk of collision through his training and experience.  The Afton Alps Ski Patrol Snowmobile Policy and Procedure manual warned Manns of the significant risk of collision on Paula's Pass/Patti's Pass while snowmobiling because it is heavily used for skiing and snowboarding.  Having designated Paula's Pass/Patti's Pass a cautionary area, the manual warned, "[i]f you feel uncomfortable about entering . . . don't do it."  Manns admitted in deposition testimony that he had knowledge of the risk of collision with a snowboarder or skier while riding a snowmobile and appreciated these risks.  Manns voluntarily accepted the risk of collision by participating in the ski patrol and responding to the call of an injured skier.  Manns's recovery in negligence is barred because he had knowledge and appreciation of the inherent risks of his conduct and voluntarily engaged in it. 

            Citing Olson v. Hansen, 299 Minn. 39, 216 N.W.2d 124 (1974), Manns maintains that, because he was not operating the snowmobile, he was not voluntarily encountering the risk of collision.  But the facts of Olson are readily distinguishable from those presented here.  Unlike Manns, the snowmobile passenger in Olson had no knowledge of the danger encounteredrolling over a hillsideeither through warning or prior experience and, therefore, could not have assumed the risks.  299 Minn. at 45, 216 N.W.2d at 128.

Manns also argues that there is a factual dispute as to whether Dekarske engaged in grossly negligent or reckless conduct by failing to maintain a proper lookout while proceeding down the ski hill.  But the conclusive evidence does not support his claim of a factual dispute.

Immediately prior to the accident, Dekarske was demonstrating his technique and leading his snowboarding class down the ski hill, periodically looking back and forth to supervise his students' progress.  He saw Manns's snowmobile less than a second before colliding with it.  Manns saw Dekarske between four and six seconds before impact and testified that "it was over in a very short amount of time."  Manns characterized Dekarske's snowboarding as fast but "in control."  The risk created by an instructor periodically looking back while leading a snowboarding class in an authorized activity on a hill or pass is not conduct outside the realm of those risks inherent to a ski patroller snowmobiling on Paula's Pass/Patti's Pass.  The evidence conclusively precludes a reasonable inference that Dekarske's conduct was so reckless as to be wholly unanticipated.  Indeed, Manns admitted that, although ski patrollers use their training and experience to minimize the risk of a snowmobile collision, such a risk is inherent and cannot be eliminated. 

Because Manns primarily assumed the inherent risk of a collision, which gave rise to his injuries, summary judgment dismissing the negligence claim was proper.

            Affirmed.

 

 

[1] According to the Afton Alps trail map, Paula's Pass and Patti's Pass start in different locations, but the trails merge at the site where Manns and Dekarske collided.

[2] Without supporting citation and for the first time on appeal, Manns argues in his reply brief that Dekarske had an enhanced duty to adhere to a professional standard of care because he considered himself an expert snowboarder.  Ordinarily, we do not consider matters that have not been presented to the district court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  Moreover, arguments that are not supported with legal authority are waived.  Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982).

[3] Manns argues that, because skiing and snowboarding are noncontact sports, primary assumption of risk is inapplicable here.  But Minnesota courts have applied primary assumption of risk to noncontact sports in many contexts.  See Grisim v. TapeMark Charity Pro-Am Golf Tournament, 415 N.W.2d 874, 876 (Minn. 1987) (golf); Moe v. Steenberg, 275 Minn. 448, 450, 147 N.W.2d 587, 589 (1966) (skating); Snilsberg v. Lake Washington Club, 614 N.W.2d 738, 744 (Minn. App. 2000) (diving), review denied (Minn. Oct. 17, 2000); Jussila v. U.S. Snowmobile Ass'n, 556 N.W.2d 234, 237 (Minn. App. 1996) (snowmobile racing), review denied (Minn. Jan. 29 1997); Swagger, 379 N.W.2d at 184 (softball).