Case Information
UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA JEANNE ANDERSON, Case CV (PJS/HB) Plaintiff,
v. ORDER RUGGED RACES LLC DENNIS
RAEDEKE, INC., d/b/a Wild Mountain
Recreation Area,
Defendants. L. Michael Hall, III, L. Michael Hall, Mara Brust, HALL LAW, P.A., for plaintiff.
Anthony J. Novak Mark A. Solheim, LARSON KING LLP, for defendants.
In September plaintiff Jeanne injured foot while participating “extreme” known Maniac Twin Cities (“the race”). event staged by defendant LLC (“Rugged Races”) Wild Mountain Recreation Area, property owned defendant Dennis Raedeke, Inc. (“Wild Mountain”). brings various negligence claims against Races Wild Mountain. This matter Court motion Races Wild Mountain for summary judgment. For reasons follow, defendants’ motion for summary judgment is granted.
I. BACKGROUND A. Rugged Maniac Obstacle Races has staged races around United States since 2010. Solheim Decl. Ex. 1, Scudder Dep. I 9:18–19, 10:23–25, ECF No. 50. Each race attracts thousands participants, who are drawn extreme nature event. Id. 36:1–9, 59:9–10, Each requires participants complete series of obstacles been constructed out such elements as barbed wire, open flames, muddy water. Injuries are extremely common; several hundred participants might suffer injuries single race. Solheim II 31:3–13, ECF No. 50. follows series protocols—before, during,
race—to ensure course safe. Obstacles are inspected on several occasions the begins, including during the construction process, on the day before the race, the morning the race. Scudder Dep. I 37:15–18, 44:7–13, 112:3–11; Solheim Melnik Dep. 35:12–23, ECF project manager will not allow the event to begin until he satisfied the course is safe. Scudder Dep. I 112:3–11.
During the race, staff circulate throughout the course to ensure the obstacles are functioning properly. Id. 113:20–114:3. In addition, Rugged contracts Staff Medics, LLC (“Staff Medics”) provide medics, who treat injured participants maintain records each injury. 34:3–20; Scudder Dep. II 33:19–24, After each injury, the medics treat the injured participant, project manager another staff member inspects obstacle which participant injured. Scudder Dep. I 158:4–16; Scudder Dep. II 36:19–37:5. If was caused defect obstacle, project manager has discretion fix defect or close remainder race. Scudder Dep. II 41:1–5, 71:4–12, 73:7–13.
B. 2016 Rugged Maniac Twin Cities and Bang the Gong has hosted the Rugged Maniac Twin Cities obstacle race at Wild
Mountain since 2010. Scudder Dep. I 23:24–24:5. The 2016 race course included 26 obstacles, including the “Bang the Gong” obstacle the subject of litigation. Solheim 2, Twin Cities Sept. 2016 Course Map, ECF Bang the Gong was comprised of platform raised few inches above the ground, a pit filled with water, and trussing several gongs hanging over the top the pit. Scudder Dep. I 121:6–13; Melnik Dep. 24:1–26:9. To complete the obstacle, participants had jump off the platform, strike the gong while midair, land the pit water, climb out pit, and continue the next obstacle. Melnik Dep. 26:21–24.
Bang Gong introduced Maniac courses sometime 2015 or Races’ construction crew had set up multiple times prior race. Dep. I 117:5–118:14, 120:8–10. construction crew set up Gong following same process had used other races. Melnik Dep. That process involved marking digging landing pit, removing debris from pit, laying down tarp, performing two walkthroughs of tarp covered pit, filling water, building platform trussing. Id. 10:15–17, 14:9–13, 16:22–24, 17:16–24, 24:15–16, 26:5–9, 30:2–12. Hence, the pit was inspected total three times before filled with water. Bang was inspected two more times filled with water—first day or so the race then again morning race. Id. 35:17–23, 37:13–20. Races again signed Race Participant Agreement (which again included the exculpatory clause quoted above). Id. at 113:9–19; Solheim Decl. Ex. Signature Sheet, ECF No. 50. Some time thereafter, Anderson and her coworkers began course. Anderson Dep. 117:6–21. Anderson successfully completed seven obstacles before approaching Gong. Id. at 118:4–22; Solheim Decl. Ex. Twin Cities Sept. 2016 Course Map.
Anderson paused briefly watched few people complete obstacle. Anderson Dep. 124:19–22. She then ran up platform, jumped, reached for gong, landed on her feet water. Id. at 140:12–16. Upon landing, Anderson’s “left foot hit something hard”—something felt like rock. Id. at 140:21–25. Anderson immediately felt severe pain her left heel. Unable stand, she dropped to her knees crawled out pit. at 145:3–10.
Anderson transported medical tent for examination. Id. At about 1:15 pm, Anderson reported medic she landed on a rock. Brust G, Staff Medics LLC Patient Care Rep. for Jeanne Anderson, ECF After Anderson’s examination medical tent, one Anderson’s coworkers drove her hospital further treatment. Dep. 156:17–157:11. later learned calcaneus bone her left heel “exploded”; she suffers from pain limited mobility day. 158:10–14, 160–66. one five participants suffer a foot injury while completing on September 10, 2016:
(1) Angela Craig fractured her calcaneus bone when her left foot impacted on something hard landing pit. Brust Decl. Ex. C, Craig Decl. ¶ 5, ECF No. 62. Her injury report, submitted 10:50 am, states she “landed wrong on [her] foot when [she] hit bottom water.” Solheim Decl. Ex. 2, Staff Medics LLC Patient Care Rep., ECF No. 50.
(2) Alexandra Harding broke her ankle sometime 12:15 pm when her “right foot impacted a hard object felt like a rock hidden below surface water.” Brust Decl. Ex. D, Harding Decl. ¶ 5, ECF No. 62. Her injury provides following incident description: “jumped into pit—uneven terrain, felt pain . . . .” Solheim Decl. Ex. 2, Staff Medics LLC Patient Care Rep.
(3) At roughly 1:00 pm, Amelia Erickson broke calcaneus bone her right foot when she landed rock landing pit. Brust Decl. Ex. E, Erickson Decl. ¶¶ 10, ECF Erickson reported both injury presence rock in medic 1:10 pm. Solheim Staff Medics LLC Patient Care Rep. (stating occurred she “came down flat rock”).
(4) Also roughly 1:00 pm, injured. As noted, she reported her injury to a medic about 1:15 pm. The medic wrote “landed on a rock on bottom obstacle.” Brust Decl. Ex. G.
(5) Finally, also roughly 1:00 pm, Siri Taylor injured her left foot after landing on rock pit. She told a staffer about rock then reported her injury medic around 1:31 pm. Brust Decl. Ex. F, Taylor Decl. ¶¶ 5–8, ECF No. 62.
Despite multiple injuries occurring obstacle—and despite receiving multiple reports presence rock similar hazard water—Rugged Races kept open throughout race. II 44:1–4. Notably, over 4,000 participants completed without incident. Solheim 2, Maniac Twin Cities Event Recap Rep., ECF
II. ANALYSIS
A. Standard Review Summary judgment is warranted “if movant shows there is no genuine dispute any material fact movant is entitled judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute over a fact is “material” only if its resolution might affect outcome suit under governing substantive law. v. Liberty Lobby, Inc. , U.S. 242, 248 (1986). A dispute over a fact is “genuine” only if “the evidence is such reasonable jury return verdict for nonmoving party.” Id. “The non movant be believed, all justifiable inferences are be drawn [her] favor.” 255.
B. Negligence Exculpatory Clause common law Minnesota recognizes only one civil claim for negligence. Peet v. Roth Hotel Co. , N.W. 546, (Minn. 1934) (“The doctrine there are
three degrees negligence—slight, ordinary, gross—does prevail state.” (internal quotation marks citation omitted)). In other words, common law of Minnesota does recognize separate cause action for gross negligence for any type negligence exceeds ordinary negligence. Doub v. Life Time Fitness, Inc. , A17 WL *4 (Minn. Ct. App. Oct. 2, 2017) (“But claim gross negligence is recognized as a distinct cause action, separate from a cause of action ordinary negligence.”). Sometimes, however, text a statute or contract will differentiate among degrees negligence—for example, between ordinary negligence gross negligence. When statute or contract does so, then a court must also do so when enforcing that statute or contract. id. at *5; Beehner v. Cragun Corp. , 636 N.W.2d 821 (Minn. Ct. App. 2001).
This is such case. It is undisputed that signed Race Participant
Agreement, agreement is enforceable, that agreement included valid
exculpatory clause bars from bringing claims against defendants arising
out “ordinary negligence” “inherent risks” event. Brust M; s
ee
Schlobohm v. Spa Petite, Inc.
, N.W.2d (Minn. 1982) (noting exculpatory
clauses are enforceable but are “strictly construed against benefited party”). The
exculpatory clause binds comparable exculpatory clause that
enforced Minnesota Court Appeals
Beehner
, N.W.2d 825–26. Here,
Beehner
, plaintiff can recover only if she can prove defendant acted
greater than ordinary negligence. 829–830.
argues exculpatory clause contained Race
Participant Agreement bars any claim based
any
degree negligence, citing
Doub
,
WL *4. Def.’s Reply Mem. Supp. Summ. J. 8–9, ECF But exculpatory clause in
Doub
barred “any” negligence claims.
To defeat defendants’ summary ‐ judgment motion, then, must point to
record allow reasonable jury find Races
acted greater ‐ than ‐ ordinary negligence.
Beehner
,
At same time, is not required to prove that acted with gross negligence. If ordinary negligence is one end actionable negligence spectrum, gross negligence is end:
Gross negligence is substantially appreciably higher in magnitude than ordinary negligence. It is materially more want care than constitutes simple inadvertence. It is an act or omission respecting legal duty aggravated character as distinguished from mere failure to exercise ordinary care. It is very great negligence, or absence of slight diligence, or want even scant care.
State v. Bolsinger
,
2. Notice of and Response Rock
Anderson first alleges Races was negligent—and that its negligence
exceeded ordinary negligence—in failing respond reports of a rock in landing
pit Bang Gong.
[7]
Anderson argues placed notice a
hazard in Bang Gong’s landing pit and acted greater than ‐
ordinary negligence when it failed remove hazard, warn participants, or shut
down obstacle. Pl.’s Mem. Opp’n Summ. J. ECF 61. The Court disagrees.
Any claim negligence rests on “the actor’s knowledge, actual imputed, of
facts out which alleged duty arises.”
Rue v. Wendland
,
As described above, five participants were injured obstacle during race: Craig, Harding, Erickson, Anderson, Taylor. first three injuries were reported Staff Medics at 10:50 am, 12:15 pm, 1:10 pm. Craig Decl. ¶ 6; Harding Decl. ¶ 7; Erickson Decl. ¶ 7. Anderson’s injury was reported Staff Medics at 1:15 pm. Brust Decl. G. And Taylor’s injury was reported Staff Medics at 1:31 pm. Taylor ¶
Anderson testified she driven medical tent two other participants who were injured Gong—almost certainly, Erickson and Taylor. After arriving medical tent, Erickson reported her injury 1:10 pm, reported her injury 1:15 pm. Clearly, then, Erickson did until injured. And even if Erickson was not one two participants who were transported to medical tent Anderson—and even if jumped into pit at 1:11 pm or 1:12 pm and then was instantly rushed medical tent time to report her injury at 1:15 pm—there not have been sufficient time between Erickson’s report 1:10 pm Anderson’s injury 1:11 pm 1:12 pm Races taken preventative measures. In sum, then, had notice only two injuries on Bang Gong—Craig’s injury Harding’s injury—prior jumping into pit.
Turning those two injuries:
a. Craig’s Injury
As noted, Craig reported her injury 10:50 am, long was injured. But does not appear that Craig informed Races, Staff Medics, or anyone else reason she injured because rock landing pit Gong. Craig Decl. Her does mention rock; instead, it simply says Craig “landed wrong [her] foot when [she] hit bottom water.” Solheim Staff Medics LLC Patient Care Rep. Landing wrong jump is inherent risk an race. I fact Rugged learned Craig hurt foot when wrong Gong did put notice there rock pit.
Craig now says that she “impacted something very hard” when she jumped into landing pit Bang Gong. Craig Decl. ¶ 5. But she does not say that on day of race she told Rugged Races or Staff Medics that there was rock or other “very hard” object landing pit. Accordingly, Court finds that Craig’s injury did not put Races on notice rock that later harmed Anderson.
b. Harding’s Injury
Harding reported her injury 12:15 pm, less than an hour Anderson was injured. Like Craig, Harding now says that she “impacted hard object.” Harding Decl. ¶ Again, though, Harding does not say that day she informed Staff Medics there was rock or “hard object” Gong’s landing pit. Harding Decl.
uneven. Ziejewski Decl. Ex. A, Anderson00726, ECF Rather, and her expert testified that she was injured by landing on rock similarly rigid object in landing pit.
Second, Race Participant Agreement’s exculpatory clause bars Anderson from recovering injuries that arise out of “inherent risks” of race. Brust Decl. Ex. M. Agreement defines “inherent risks” as “risks that cannot be eliminated completely (without changing challenging nature of Event) . . . .” The Agreement identifies “encounters obstacles (e.g., natural man made water, road surface hazards . . . )” examples inherent risks. Id.
If was indeed injured by landing on an uneven surface—instead by rock—then was attributable an “inherent risk” race. was participating extremely challenging obstacle an outdoor course carved out side mountain. Uneven terrain part of challenge drew individuals participate race. In language release, uneven terrain “surface hazard” be “eliminated completely []without changing challenging nature Event . . . .” Id.
Anderson’s own expert, Todd Seidler, supports conclusion. His says “[m]any injuries occur course runs are caused risks are inherent, thus reasonably anticipated activity.” Seidler A, Anderson00799, ECF Seidler cites examples “slipping in a muddy area, tripping on uneven ground [,] possibly colliding with another participant.” (emphasis added). Again, “uneven ground” comes the territory those who choose to participate in outdoor races.
Finally, nothing in the record supports the notion that any unevenness in the ground under Bang the Gong’s landing pit resulted from greater ‐ than ‐ ordinary negligence on the part of Races. See Beehner , N.W.2d (applying exculpatory clause bar claim based a loose saddle because defendant did not increase risk of saddle slipping via greater than ordinary negligence). To the contrary, record indicates inspected pit multiple times to ensure reasonably flat. Melnik 14:9–13, 17:16–24, Moreover, prior Anderson’s injury, hundreds (if not thousands) of participants jumped off same platform into same pit, not one of them (save Harding) had complained uneven terrain.
In sum, record simply does support Anderson’s contention Rugged knew rock landing pit Gong far enough advance her to taken preventative action. Accordingly, the Court finds that Anderson not injured because Rugged Races exhibited greater than ‐ ordinary negligence in failing to respond to of rock the landing pit of Bang the Gong. Failure Follow Routine Practices
Anderson next argues that, even if Rugged Races did know that there a rock of Gong, Rugged Races nevertheless exhibited greater ‐ than ordinary negligence failing inspect obstacle race. Had Rugged Races adequately inspected obstacle, Anderson argues, Rugged Races have discovered removed rock that later caused injury. makes much unremarkable fact that none Rugged Races
staff members has specific memory inspecting one many obstacles (Bang Gong) one many races (Rugged Maniac Twin Cities) held one many years (2016) has staging races. goes so far to claim there is no inspected in connection race. Pl.’s Mem. Opp’n Summ. J. 7–8.
Putting aside fact burden is prove Races did adequately inspect obstacle—not prove did adequately inspect obstacle—Anderson incorrect about evidence. Under Fed. R. Evid. “[e]vidence . . . organization’s routine practice may be admitted to prove particular occasion . . . organization acted accordance with habit or routine practice.” The testimony of senior vice president Bradford and construction crew member Christian Melnik establishes that, time of 2016 race, Rugged routine practice inspecting each before each race, during each race, each race. It does not matter Scudder’s Melnik’s testimony about Races’ routine practice is not corroborated by any contemporaneous business record or eyewitness testimony, as evidence routine practice an organization is admissible under Rule “regardless whether it is corroborated whether there eyewitness.” Fed. R. Evid. 406. next argues that, even if generally followed set of
routine practices when sponsored race, there Races deviated from its routine practices three respects connection with race. And, according Anderson, fact did follow three its routine practices connection allow jury infer it did follow its routine practices, such its routine practice inspecting multiple times filling water. three deviations identified are following:
a. Failure Follow Post ‐ Injury Protocols During the Race testified that, during a race, the project manager will receive notice that a possible defect an obstacle has caused an injury from two sources: (1) calls for assistance with injuries that he hears on the radio that he carries during the and (2) the medical director, who tracks reports from the medics about problems with obstacles described by injured participants passes information the project manager. I 169:9–12; Scudder Dep. II 35:20–36:4, 44:13–20. According to Races, when the project manager learns a participant has been injured on obstacle, the project manager will promptly inspect obstacle. See, e.g. , Scudder Dep II 12:6 13:20 Usually, these inspections are cursory do require any modifications obstacle, because the injury caused by problem obstacle. Id. 36:19–25. If, however, project manager learns was caused by problem obstacle, he may temporarily shut down obstacle until problem resolved. Id. If problem cannot be resolved, he may shut down rest race.
Based record, jury find did not follow practice during race. As discussed, Erickson, Anderson, Taylor all reported they injured rock Gong. project manager should learned their reports, and, learning their reports, he should have gone into the landing and searched the rock. Scudder Dep. II 42:15–19; Melnik Dep. 44:4–6. It clear, however, project manager did not inspect pit. Such an inspection would required project manager temporarily close Bang Gong, Melnik Dep. 44:9–11, Bang Gong not closed any point during race, Scudder Dep. II 44:1–4.
In short, evidence supports Anderson’s contention that, during race, failed follow its routine practice inspecting obstacle after learning participant injured on obstacle. b. Failure Follow Procedures Creating Post ‐ Race Recap Reports
Scudder testified that, each race, project manager would compose a report, report mention any “trends” injuries. Scudder Dep. II 38:5 cites as another routine practice not followed during 2016 race, least five participants were injured Gong, yet post race does mention any those injuries. Solheim Maniac Twin Cities Event Recap Rep . Further, points multiple injuries occurred during races staged Rugged Races, see Pl.’s Mem. Opp’n Summ. J. 11–14, those injuries were also mentioned reports those races, II
Unlike Rugged Races’ practice inspecting obstacles following injury reports, Races’ practice noting injury trends post ‐ race reports cannot fairly be characterized as a “routine practice” purposes Rule A routine practice is established when an organization uniformly—almost reflexively—responds a specific way to a specific circumstance. United States v. Jones , No. 14 ‐ cr ‐ 148 (SRN/LIB), 2015 WL 1020811, *1 (D. Minn. Mar. 9, 2015) (noting habit is inadmissible if conduct “‘not sufficiently regular uniform’” noting Eighth Circuit treats “‘habit’ ‘routine practice’ synonymous”); United States v. Jones , 14 cr ‐ 148 (DWF/LIB), WL *4 (D. Minn. Mar. 2015) (evidence offered establish a routine practice must support “‘an inference systematic conduct’”); Charles Alan Wright & Arthur Miller, Fed. Prac. & Proc. Evid. § (2d ed.) (“‘Routine practice’ is conduct organization performs frequently consistently specific situation.”).
Although general policy including information about trends post race reports, up project manager decide what point multitude injuries constituted “trend.” did provide any direction project manager—and, indeed, even describe how particular project manager who supervised decided when a “trend” had emerged. [9] See Scudder Dep. II 58:12–60:9 (stating Rugged Races was unsure if project manager looked at injury reports in determining trends for the post ‐ race recap report). In other words, there was nothing “routine” about decisions project manager made regarding what injury ‐ related information include in post race reports. Instead, was discretionary, idiosyncratic decision. Id. 58:12–25.
For these reasons, does not support Anderson’s contention that, during race (and during races staged 2016), Races failed to follow routine practice including information about trends post race reports.
c. Failure Follow Construction Procedures As described above, routine practice for constructing the Bang Gong obstacle, which involved marking digging pit, removing debris from pit, laying down tarp, performing two walkthroughs tarp ‐ covered pit, filling water. Melnik Dep. 10:15–17, 14:9–13, 16:22–24, 17:16–24, 24:15–16, 26:5–9, 30:2–12. argues, however, there evidence did not follow this practice when constructing Gong for 2016 race. points statement in the post race report about the 2016 race describes the ground Wild Mountain as “extremely soft.” Solheim 2, Maniac Twin Cities Event Recap Rep. Because the soft soil, the report advises “all pits need water right away retain the walls.” Id. Anderson argues if pits needed be filled with water “right away,” then Races could not have inspected Gong’s landing pit three times filling pit water, as was Races’ routine practice.
When asked about portion report, Melnik testified process for constructing was same sandy soil as types soil. Melnik Dep. 75:3–12. Further, Melnik could remember any issues with construction race course recall any deviation from construction protocols. 26:25–27:5, 29:1–19, Scudder reiterated any problems constructing course included and that, based his conversation project manager, sandy soil “handled without issue.” Scudder Dep. I 95:16–96:19.
d. Summary and Analysis
In sum, evidence in record permit a jury to find Races failed to follow one its routine practices connection with race—the routine practice inspecting after learning participant may have injured because defect obstacle. But failure occurred was injured, thus obviously did contribute to her injury. Lubbers v. , 539 N.W.2d (Minn. 1995) (“There must also be showing defendant’s ‘conduct substantial factor bringing about injury.’” (citation omitted)). The same can be said about project manager’s failure to include information about injuries suffered Bang his post race report; failure on Anderson’s injury obviously did cause injury. seems recognize this, thus relies following chain of
inferences: (1) failed follow two its routine practices race (the routine practice promptly inspecting obstacles following injuries alleged routine practice including information about trends post reports); (2) failure may failed follow routine practices, such routine practice inspecting Gong’s three times filling water; (3) inspected Gong’s landing pit three times before filling it with water, it discovered and removed the rock caused Anderson’s injury.
This a long tenuous series inferences. maintained numerous routine practices were carried out by different people, different times, different situations. See Wright & Miller, Fed. Prac. & Proc. Evid. § (noting efficiency motivates the creation routine practices to address frequently ‐ occurring matters). The fact during race the project manager failed to inspect Bang the Gong promptly after learning injuries suffered by two others provides little evidence that, day or two before race, four ‐ to ‐ five member construction crew failed to inspect Bang Gong’s landing pit before filling it with water. Scudder Dep. II 44:16–20, 60:2–6 (describing project manager’s responsibility to inspect injury causing obstacles during race); Melnik 27:19–22 (describing the construction crew’s responsibility inspect obstacles during construction). one has nothing do other.
Likewise, fact race project manager chose include information about injuries suffered participants his post ‐ race provides no that, day two before race, construction crew failed inspect Gong’s filling water. Even if policy including trends post reports be considered “routine practice”—and, as the Court has held, it cannot—the one routine practice is unrelated to the other.
Finally, to the statement the post about the soft soil: Even assuming that the landing pit of the was filled with water “right away” (notwithstanding the testimony the contrary), the construction crew would have had lay down tarp ensure there were no hazards puncture rip tarp before they filled pit with water. Melnik 14–17; Brust I, Photograph Jeanne Gong, ECF (showing tarp was place landing pit race). In words, some type inspection must have occurred before pit was filled water, even if it was only one inspection (instead three), even if inspection somewhat rushed (because concerns about soft soil). fact Races’ routine practice to inspect landing pit three times filling it water does mean failing inspect landing pit three times is negligent. Obviously, routine practice an organization can exceed what is necessary avoid finding negligence. Conducting single quick inspection might have been negligent—the parties do not really discuss issue, record contains no evidence directly addressing question—but there no more than negligent.
For Anderson’s claim succeed, she would have introduce not only acted with greater ‐ than ‐ ordinary negligence in failing more carefully inspect pit, but (1) rock which she landed was present in pit pit was filled with water (2) rock have been discovered if the construction crew acted with greater ‐ than ‐ ordinary negligence. Anderson offers little more than speculation in support these contentions. Low Water Level
Finally, argues her injury could have been avoided if the Gong’s pit had been deeper, cites expert testimony support of her argument. Pl.’s Mem. Opp’n Summ. J. 37; Ziejewski A, Anderson00726–27 (“Water provides more resistance than air deeper pool could have ameliorated hazardous condition bottom this pool. If deep enough, impact bottom could be avoided altogether; thus, easily preventing type occurrence digging deeper pool.”). What says may be true, but saying deeper prevented same saying acted greater than ordinary negligence designing pit.
Nothing record suggests negligent designing water pit. design based design older obstacle (“Leap Faith”), which used successfully years. I 118:10–14, 121:5–13, 122:1–5. In addition, was tested prior its incorporation into Rugged Maniac course ensure water level in the landing pit sufficient. 121:14–17; II 64:1–6. And, course, over 4,000 people participated in Maniac Twin Cities jumped into Gong’s landing pit Anderson, yet only four others were injured. fact thousands participants—many whom undoubtedly outweighed Anderson—jumped into landing pit without incident compelling evidence water level unreasonably low. [11]
* * *
In sum, no reasonable jury find, based in record, that acted greater ‐ than ‐ ordinary negligence connection 2016 Races’ greater than ordinary negligence caused to injure foot. The Court therefore grants summary judgment motion Rugged Wild Mountain dismisses action prejudice.
ORDER
Based foregoing, all files, records, proceedings herein, IT IS HEREBY ORDERED THAT:
1. Defendants’ motion summary judgment [ECF No. 47] is GRANTED. 2. Plaintiff’s complaint [ECF 1] DISMISSED WITH PREJUDICE AND ON THE MERITS.
LET JUDGMENT BE ENTERED ACCORDINGLY. Dated: October 2020 s/Patrick J. Schiltz Patrick J. Schiltz
United States District Judge
Notes
[1] Only filed formal motion for summary judgment. Def.’s Mot. Summ. J., ECF No. But their briefs oral argument, attorneys for Races—who are also representing Wild Mountain—made clear they were also moving for summary judgment behalf Wild Mountain. See Def.’s Mem. Supp. Summ. J. 13–14, ECF No. (arguing dismissal claims against Wild Mountain); Def.’s Proposed Order, ECF No. 51; Mot. Hr’g Tr. 25–26, ECF No. 75 (discussing claims against Wild Mountain). has objected Court treating summary judgment motion having filed behalf both defendants. Pl.’s Mem. Opp’n Summ. J. ECF (discussing claims against Wild Mountain).
After race, project manager notes any “trends” injuries post race recap report, entire staff discusses try improve safety future races. I 165:20–166:4; Scudder Dep. II 38:5–13, 84:5–15.
[2] None members construction crew had specific memory setting up Wild Mountain but none aware any time when deviated from construction protocols obstacle. Melnik 10:5–10, 87:9–14.
does document these inspections; instead, notes any problems with obstacles post race recap report. Scudder Dep. I 113:11–15, 114:8–12, 133:22–134:11, 137:15–17. regarding did identify any problems Gong. C. Jeanne Anderson Injuries Gong On June 22, 2016, Anderson two her coworkers registered Rugged Maniac Twin Cities. Solheim Decl. Ex. 2, Order Confirmation Email, ECF No. 50; Solheim Decl. Ex. 8, Anderson Dep. 86:2–9, ECF No. As part registration process, Anderson executed Race Participant Agreement, which included an exculpatory clause. Dep. I 50:4–13. That clause released and Wild Mountain “from any all claims resulting from INHERENT RISKS Event ORDINARY NEGLIGENCE LLC (or Released Parties) . . . .” Brust M, Race Participant Agreement, ECF 62. On September day race, arrived Wild Mountain two coworkers. When checking in, once
[3] could see hard object because water muddy, but she feel difference between hard surface which her left foot landed soft surface which right foot landed. 141–142.
[4] This Court’s estimate, based fact did her until 1:15 pm, she hurt foot, crawled out pit, reported her need medical attention, waited for medic arrive, transported the medical tent.
[5] At hearing, Anderson’s counsel suggested Taylor may been injured Anderson. Mot. Hr’g Tr. Court found no record support contention.
[6] argues must prove gross negligence because she pleaded only gross negligence complaint. Def.’s Reply Mem. Supp. Summ. J. 12–13. But it is impossible to act with gross negligence without acting with greater ‐ than ordinary negligence, is impossible act with greater than ‐ ordinary negligence without acting ordinary negligence. Thus plaintiff who pleads a claim gross negligence provides fair notice defendant plaintiff is claiming defendant acted all degrees negligence from ordinary gross. Tellabs, Inc. v. Makor Issues & Rts., Ltd. , U.S. (2007) (“[T]he complaint must say enough give defendant fair notice what plaintiff’s claim (continued...)
[6] (...continued) grounds upon which rests.” (internal quotation marks citation omitted)); Adams v. Am. Fam. Mut. Ins. , F.3d (8th Cir. 2016) (“A theory liability not alleged or even suggested in complaint put a defendant fair notice should be dismissed.”).
[7] disputes there a rock landing pit the Gong. Def.’s Reply Mem. Supp. Summ. J. 4–5, 11. On motion summary judgment, however, Court must resolve all conflicts draw all inferences favor nonmoving party. , U.S. 255. testified deposition that she felt rock, declarations injured participants all describe feeling rock similar object. 141:3–7; Craig Decl. ¶ 5; Harding Decl. ¶ 5; Erickson ¶ 5; Taylor Decl. ¶ Court therefore must assume rock was present Gong.
Harding’s injury notes her injury occurred when she “jumped into pit—[landed on] uneven terrain, felt pain . . . .” Solheim Staff Medics LLC Patient Care Rep. A jury therefore find that, approximately hour before was injured, notice bottom Gong’s landing was “uneven.” But cannot recover against for failing respond report. First, does claim she injured by “uneven terrain,” her own expert testified caused terrain was
[8] argues presence rock landing pit also an inherent risk obstacle. Def.’s Mem. Supp. Summ. J. 14–15. But given conflicting issue, reasonable jury find rock inherent risk. Compare Dep. I 75:22–76:15, 127:9–17, Seidler A, Anderson00799–800.
[9] Brendan Maguire, who was project manager race, died shortly after this action filed. I talked with Maguire about race action filed, but they did discuss why he did mention injuries occurred connection his post ‐ report. 20:14–21.
[10] soil Wild Mountain described elsewhere record “sandy.” I 93:23–94:10.
[11] At hearing, argued for first time was negligent failing maintain water level throughout race. Mot. Hr’g Tr. 45:20–24, But “federal courts do not, rule, entertain arguments made by party for first time reply brief[,]” Torspo Hockey Int’l, Inc. v. Kor Hockey Ltd. , F. Supp. 2d 878 (D. Minn. 2007), much less arguments made party first time oral argument, see UnitedHealth Grp. Inc. v. Columbia Cas. Co. , F. Supp. 3d 886–87 (D. Minn. 2014), aff’d sub nom. UnitedHealth Grp. Inc. v. Exec. Risk Specialty Ins. , F.3d (8th Cir. 2017).
[12] exculpatory clause Race Participant Agreement applies Wild Mountain, well as Races.