Written by Mike Steenson, Bell Distinguished Professor of Law at Mitchell Hamline.
In two unanimous opinions issued on January 25, 2019, the Minnesota Supreme Court retained the primary assumption of risk doctrine but narrowly confined its application, re-emphasized that the issue of whether intoxication is a proximate cause of an injury is generally a fact question, and put yet another exclamation on the point that in close cases the issue of foreseeability in determining duty is a question for the fact-finder.
In Soderberg v. Anderson, No. A17-0827, 2019 WL 287781, at *1 (Minn. Jan. 23, 2019) (Lillehaug, J.), the court declined to apply primary assumption of risk in a skiing accident case that arose out of injuries the plaintiff ski instructor sustained when hit by an errant snowboarder who traversed the safe ski area where she was instructing a young student. The court declined to apply primary assumption of risk to skiing because it (1) did not perceive the risk of collisions between skiers as inherent in the sport; (2) was “loathe to extent the doctrine of primary assumption of risk to yet another activity” beyond the cases where it has already been applied (hockey, figure skating, baseball spectator injuries, golf, and roller skating); and (3) was not persuaded that failure to apply the doctrine would deter participation in skiing or have a detrimental effect on ski operators.  The decision is consistent with a national trend toward elimination or limitation of primary assumption of risk and continues the skeptical view of primary assumption of risk previously taken by the court in Daly v. McFarland, 812 N.W.2d 113, 120 (Minn. 2012).
The second case, Henson v. Uptown Drink, LLC, No. A17-1066, 2019 WL 287474, at *1 (Minn. Jan. 23, 2019) (Lillehaug, J.) rejected the application of primary assumption of risk in an innkeeper’s liability case that arose out of the death of an off-duty bar employee who slipped and hit his head on the sidewalk while aiding the bar manager in escorting an intoxicated and disruptive patron from the bar. The court saw no good reason to extend primary assumption of risk to “injuries arising out of the operation and patronage of bars.” Consumption of alcohol can of course lead to altercations, but the court emphasized that it has “never considered operating and patronizing bars to be inherently dangerous activities,” and that “operation and patronage of bars is not – and should not be – a contact sport.”
The court also affirmed the district court’s holding that the issue of whether the injury was foreseeable under the circumstances presented a close question of fact for the fact-finder.
The plaintiff also asserted a Civil Damages Act theory. The key issue was whether the intoxication of the customer was the proximate cause of Henson’s injuries. According to Osborne v. Twin Town Bowl, Inc., 749 N.W.2d 367, 373 (Minn. 2008), “proximate cause” requires that the intoxication “must have been a substantial factor in bringing about the injury.” Whether it “exists in a particular case is a question of fact for the jury to decide.”
There are several takeaways from the decision. Primary assumption of risk has limited reach, out of the court’s respect for precedent. The court clearly distinguished between primary and secondary assumption of risk and just as clearly emphasized that secondary assumption of risk is part of contributory negligence. The demise of primary assumption of risk should not mean that secondary assumption should escape the boot the court put on it years ago in Springrose v. Willmore, 292 Minn. 23, 24–25, 192 N.W.2d 826, 827 (Minn. 1971) when it merged the defense with contributory negligence. The only issue is whether the plaintiff used reasonable care under the circumstances.
The court continues to leave the foreseeability issue, this time in the innkeeper’s liability context, to the fact-finder. That application again illustrates not a rule, but the court’s approach to foreseeability in “close cases.”
In cases involving Civil Damages Act claims, proximate cause is still problematic. Proximate cause is a scope of liability concept. In Minnesota it is married to the substantial factor test, which is also the primary test the courts use to determine cause-in-fact. The most important point is that the issue is a question of fact for the trier of fact.
For a more detailed discussion, see Mike Steenson, Proximate Cause in Civil Damages Act Cases, 2 Wm. Mitchell J. L. & Prac. 6 (2009).