Julie A. Soderberg vs. Lucas Anderson

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.

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When Anderson snowboarded at Spirit Mountain, he typically warmed up by going

down less challenging runs. That morning, Anderson went down part of a “more difficult”

run called Scissor Bill, which merges with an “easiest” run called Four Pipe. As he left

Scissor Bill and entered Four Pipe, Anderson slowed down, looked up for other skiers and

snowboarders coming down the hill, and proceeded downhill.

Anderson then increased his speed, used a hillock as a jump, and performed an aerial

trick called a backside 180. To perform the trick, Anderson—riding his snowboard

“regular”—went airborne, turned 180 degrees clockwise, and prepared to land “goofy.”1

Halfway through the trick, Anderson’s back was fully facing downhill. He could not see

what was below him.

Respondent Julie Soderberg was below him. A ski instructor employed by Spirit

Mountain, she was giving a lesson to a six-year-old child in an area of Four Pipe marked

“slow skiing area.” At the moment when Anderson launched his aerial trick, Soderberg’s

student was in the center of the run. Soderberg was approximately 10 to 15 feet downhill

from, and to the left of, her student. She was looking over her right shoulder at her student.

As Anderson came down from his aerial maneuver, he landed on Soderberg, hitting

her behind her left shoulder. Soderberg lost consciousness upon impact. She sustained

serious injuries.



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

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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 owed no duty of care to Soderberg based on the doctrine

of implied primary assumption of risk. The doctrine of primary assumption of risk is part

of our common law. Springrose v. Willmore, 192 N.W.2d 826, 827–28 (Minn. 1971). The

application or extension of our common law is a question of law that we review de novo.

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See Gieseke ex rel. Diversified Water Diversion, Inc. v. IDCA, Inc., 844 N.W.2d 210, 214

(Minn. 2014).

In Springrose, we clarified the distinction between primary and secondary

assumption of risk. Secondary assumption of risk is an affirmative defense that may be

invoked when the plaintiff has unreasonably and voluntarily chosen to encounter a known

and appreciated danger created by the defendant’s negligence. Springrose, 192 N.W.2d at

827. Secondary assumption of risk is “an aspect of contributory negligence,” and is part

of the calculation of comparative fault. Id.

By contrast, primary assumption of risk is not a defense and applies only in limited

circumstances. Daly v. McFarland, 812 N.W.2d 113, 120–21 (Minn. 2012); Springrose,

192 N.W.2d at 827 (explaining that primary assumption of risk “is not . . . an affirmative

defense”). Unlike secondary assumption, primary assumption of risk “completely bars a

plaintiff’s claim because it negates the defendant’s duty of care to the plaintiff.” Daly,

812 N.W.2d at 119. Therefore, primary assumption of risk precludes liability for

negligence, Springrose, 192 N.W.2d at 827, and is not part of the calculation of

comparative fault. Primary assumption of risk “arises ‘only where parties have voluntarily

entered a relationship in which plaintiff assumes well-known, incidental risks.’ ” Bjerke v.

Johnson, 742 N.W.2d 660, 669 (Minn. 2007) (quoting Olson v. Hansen, 216 N.W.2d 124,

127 (Minn. 1974)); see Armstrong v. Mailand, 284 N.W.2d 343, 351 (Minn. 1979) (noting

that the application of primary assumption of risk “is dependent upon the plaintiff’s

manifestation of consent, express or implied, to relieve the defendant of a duty”).

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Here, the parties agree that Soderberg did not expressly assume the risk of being hit

by Anderson. So the issue is whether she assumed the risk by implication.

We first considered the applicability of the doctrine of implied primary assumption

of risk to sporting events in Wells v. Minneapolis Baseball & Athletic Ass’n, 142 N.W. 706

(Minn. 1913), a case in which a spectator at a baseball game was injured by a fly ball. Id.

at 707. We rejected the proposition that spectators assume the risk of injury if seated

behind the protective screen between home plate and the grandstand. Id. at 707–08. We

determined that the ball club was “bound to exercise reasonable care” to protect them by

furnishing screens of sufficient size. Id. at 708 (citation omitted) (internal quotation marks

omitted).

Nineteen years later, we held that a spectator assumed the risk of injury of being hit

by a foul ball by sitting outside the screened-in area. Brisson v. Minneapolis Baseball &

Athletic Ass’n, 240 N.W. 903, 904 (Minn. 1932). We concluded that the ball club had

provided enough screened-in seating “for the most dangerous part of the grand stand.” Id.

We later clarified in Aldes v. Saint Paul Ball Club, Inc., 88 N.W.2d 94 (Minn. 1958), that

a baseball patron “assumes only the risk of injury from hazards inherent in the sport, not

the risk of injury arising from the proprietor’s negligence.” Id. at 97. Thus, the doctrine

applies to “hazards inherent in the sport.” Id.

We applied our flying-baseball cases to flying golf balls in Grisim v. TapeMark

Charity Pro-Am Golf Tournament, 415 N.W.2d 874 (Minn. 1987). We held that injury

from a flying golf ball was an inherent danger of the sport. Id. at 875. The tournament’s

sole duty, we said, was to provide the spectator with “a reasonable opportunity to view the

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participants from a safe area.” Id. But we did not say that recreational golfing negligence

claims are barred by the doctrine. Nor did we cast doubt on our decision in Hollinbeck v.

Downey, 113 N.W.2d 9, 12–13 (Minn. 1962), which held that if a golfer knows that another

person is in the zone of danger, the golfer should either give the other a warning or desist

from striking the ball. See Grisim, 415 N.W.2d at 875–76 (distinguishing the facts in

Grisim from those in Hollinbeck, 113 N.W.2d at 12–13, and therefore declining to apply

Hollinbeck).

We have also extended the doctrine to two forms of ice skating: hockey and figure

skating. Flying pucks are part of the inherently dangerous game of hockey, we held in

Modec v. City of Eveleth, 29 N.W.2d 453, 456–57 (Minn. 1947). We stated that “[a]ny

person of ordinary intelligence cannot watch a game of hockey for any length of time

without realizing the risks involved to players and spectators alike.” Id. at 455.2

We applied the doctrine to recreational figure skating in Moe v. Steenberg,

147 N.W.2d 587 (Minn. 1966), in which one ice skater sued another for injuries arising out

of a collision on the ice. Id. at 588. We held that the plaintiff “ ‘assumed risks that were

inherent in the sport or amusement in which she was engaged, such as falls and collisions

with other skaters. . . .’ ” Id. at 589 (quoting Schamel v. St. Louis Arena Corp., 324 S.W.2d

375, 378 (Mo. Ct. App. 1959)). But we excluded from the doctrine skating that is “so

reckless or inept as to be wholly unanticipated.” Id. Along the same lines, in Wagner v.



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

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Thomas J. Obert Enterprises, 396 N.W.2d 223 (Minn. 1986), we counted roller skating

among other “inherently dangerous sporting events” in which participants assume the risks

inherent in the sport. Id. at 226. We made clear, however, that “[n]egligent maintenance

and supervision of a skating rink are not inherent risks of the sport itself.” Id.

Recreational snowmobiling, though, is a different matter. We have consistently

declined to apply the doctrine to bar claims arising out of collisions between snowmobilers.

In Olson v. Hansen, 216 N.W.2d 124 (Minn. 1974), we observed that, although

snowmobiles can tip or roll, such a hazard “is one that can be successfully avoided. A

snowmobile, carefully operated, is no more hazardous than an automobile, train, or taxi.”

Id. at 128. Similarly, we “refused to relieve [a] defendant of the duty to operate his

snowmobile reasonably and analyzed the defendant’s conduct under the doctrine of

secondary assumption of risk.” Daly v. McFarland, 812 N.W.2d, 113, 120–21 (Minn.

2012) (citing Carpenter v. Mattison, 219 N.W.2d 625, 629 (Minn. 1974)). In 2012, we

reaffirmed that snowmobiling is not an inherently dangerous sporting activity. Id. at

121−22.

The closest we have come to discussing the application of implied primary

assumption of risk to recreational downhill skiing was in Seidl v. Trollhaugen, Inc.,

232 N.W.2d 236 (Minn. 1975). That case involved a claim by a ski area patron who had

been struck by a ski instructor. Id. at 239–40. The cause of action arose before Springrose.

Id. at 240 n.1. We did not analyze the question of whether the doctrine of primary

assumption of risk applied to recreational skiing and snowboarding. See id. at 240 & n.1.

Instead, we affirmed the district court’s decision not to submit to the jury, for lack of

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evidence, the issue of secondary assumption of risk. Id. at 240–41.

With this case law in mind, we turn now to the question of whether to follow the

example of the court of appeals in Peterson, 733 N.W.2d 790, and extend the doctrine of

implied primary assumption of risk to recreational downhill skiing and snowboarding.3 To

do so would relieve skiers and snowboarders (collectively, “skiers”) of any duty of care

owed to others while engaged in their activity. We decide not to do so, for three reasons.

First, although there is no question that skiers can and do collide with one another,

the record does not substantiate that injurious collisions between skiers are so frequent and

damaging that they must be considered inherent in the sport. As the National Ski Areas

Association has recognized through its seven-point Responsibility Code (adopted by Spirit

Mountain), skiing and snowboarding contain “elements of risk,” but “common sense and

personal awareness can help reduce” them. This recognition counsels against a flat no-duty

rule that would benefit those who ski negligently. As the Connecticut Supreme Court has

explained, “If skiers act in accordance with the rules and general practices of the sport, at

reasonable speeds, and with a proper lookout for others on the slopes, the vast majority of

contact between participants will be eliminated. The same may not be said of soccer,

football, basketball and hockey . . . .” Jagger v. Mohawk Mountain Ski Area, Inc., 849 A.2d

813, 832 (Conn. 2004). We relied on similar reasoning in our line of recreational



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

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snowmobiling cases, in which we noted that the hazard “is one that can be successfully

avoided.” Olson, 216 N.W.2d at 128.

Second, even though today we do not overrule our precedent regarding flying sports

objects and slippery rinks, we are loathe to extend the doctrine of implied primary

assumption to yet another activity. “The doctrine of assumption of risk is not favored, and

should be limited rather than extended.” Suess v. Arrowhead Steel Prods. Co., 230 N.W.

125, 126 (Minn. 1930). Our most recent case considering implied primary assumption of

risk, Daly, reflects that reluctance.4 See 812 N.W.2d at 119–22. Similarly, the nationwide

trend has been toward the abolition or limitation of the common-law doctrine of implied

primary assumption of risk. See Leavitt v. Gillaspie, 443 P.2d 61, 68 (Alaska 1968); 1800

Ocotillo, LLC v. WLB Grp., Inc., 196 P.3d 222, 226–28 (Ariz. 2008); Dawson v. Fulton,

745 S.W.2d 617, 619 (Ark. 1988); P.W. v. Children’s Hosp. Colo., 364 P.3d 891, 895–99

(Colo. 2016); Blackburn v. Dorta, 348 So. 2d 287, 291–92 (Fla. 1977); Salinas v. Vierstra,

695 P.2d 369, 374–75 (Idaho 1985); Pfenning v. Lineman, 947 N.E.2d 392, 403–04 (Ind.

2011); Simmons v. Porter, 312 P.3d 345, 354–55 (Kan. 2013); Murray v. Ramada Inns,

Inc., 521 So. 2d 1123, 1132–33 (La. 1988); Wilson v. Gordon, 354 A.2d 398, 401–02 (Me.

1976); Abernathy v. Eline Oil Field Servs., Inc., 650 P.2d 772, 775–76 (Mont. 1982)

(holding that “the doctrine of implied assumption of risk is no longer applicable in

Montana”); McGrath v. Am. Cyanamid Co., 196 A.2d 238, 239–41 (N.J. 1963); Iglehart v.



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

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Iglehart, 670 N.W.2d 343, 349–50 (N.D. 2003); Christensen v. Murphy, 678 P.2d 1210,

1216–18 (Or. 1984); Perez v. McConkey, 872 S.W.2d 897, 905−06 (Tenn. 1994); Nelson

v. Great E. Resort Mgmt., Inc., 574 S.E.2d 277, 280–82 (Va. 2003); King v.

Kayak Mfg. Corp., 387 S.E.2d 511, 517–19 (W. Va. 1989) (modifying the defense “to

bring it in line with the doctrine of comparative contributory negligence”); Polsky v.

Levine, 243 N.W.2d 503, 505–06 (Wis. 1976); O’Donnell v. City of Casper, 696 P.2d 1278,

1281−84 (Wyo. 1985).

Third, we are not persuaded that, if we do not apply the doctrine of implied primary

assumption of risk to recreational downhill skiing and snowboarding, Minnesotans will be

deterred from vigorously participating and ski operators will be adversely affected. No

evidence in the record suggests that the prospect of negligent patrons being held liable

chills participation in skiing and snowboarding. Logically, it seems just as likely that the

prospect of an absolute bar to recovery could deter the participation of prospective victims

of negligent patrons.5

Although we decline to further extend the doctrine of implied primary assumption

of risk, we also decline to overrule our precedent by abolishing the doctrine in its entirety.

We ordered briefing on the question of abolition, and we appreciate the well-researched

submissions and arguments of the parties and amici. But, as we said in Daly, in which we

declined to extend the doctrine to snowmobiling, “ ‘[w]e are extremely reluctant to overrule



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

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our precedent . . . . ’ ” 812 N.W.2d at 121 (quoting State v. Martin, 773 N.W.2d 89, 98

(Minn. 2009)). And we still see a role—limited as it may be—for this common-law

doctrine in cases involving the sports to which it has been applied.

Because we decline to extend the doctrine of implied primary assumption of risk to

recreational downhill skiing and snowboarding, we need not reach the question of whether

the court of appeals, which assumed the doctrine applied,6 erroneously concluded that

genuine issues of material fact preclude summary judgment. Instead, we affirm the court

of appeals’ disposition—reversal and remand—on a different ground.

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

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