Case concerns question of risk foreseeability; decision could have statewide reverberations
By Kevin Featherly
BridgeTower Media Newswires
MINNEAPOLIS — A Duluth ski instructor, severely injured when she was struck by an airborne snowboarder, can tell her story to a jury.
Minnesota Court of Appeals Judge Renee Worke’s Jan. 16 opinion reversed a lower court’s summary judgment that dismissed Julie A. Soderberg’s personal-injury claim against snowboarder Lucas Anderson. Both litigants are from Duluth.
Soderberg was a 40-year-old Spirit Mountain ski instructor on Jan. 3, 2016, when she was hurt. At the time, she was instructing a 5-year-old on a trail marked “slow skiing area.” She was struck from behind by Anderson, an arts instructor at a private Duluth preparatory academy, who was then 35.
Soderberg sustained a torn anterior cruciate ligament, herniated spinal disk and dissected carotid artery, according to Worke’s ruling. The artery required surgical repair, said Wilbur Fluegel, the Minneapolis attorney who argued her case before a three-judge appeal panel in early November.
Jim Balmer, the Duluth attorney who handled Soderberg’s District Court claim, said medical expenses for the married mother of two exceed $150,000. She is still unable to work and continues to undergo treatment, he said.
The case overruling the lower court’s summary judgment is Soderberg v. Anderson.
Worke wrote that while she agreed with St. Louis County District Court Judge Dale Harris that skiers assume safety risks, he wrongly barred Soderberg’s claim. Partly that’s because it remains unresolved whether Anderson’s conduct was “so reckless or inept as to be wholly unanticipated,” she wrote.
Additionally, she wrote, Anderson’s conduct arguably “enlarged the well-known, inherent risks of those activities under circumstances in which a skier is crushed from above.”
“Therefore,” she added, “that question should go to a jury.”
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The accident
Just before the accident on Spirit Mountain, Anderson snowboarded to an area where the trail he was on conjoins with a ski slope near a small hill, Balmer said.
Speeding up as he reached a hill there, Anderson went into what Worke called “his signature move”—an aerial stunt called the “backside 180.”
The stunt involves boarding up to a ramped surface. As the snowboarder launches from it, a spin is executed. Upon landing, the snowboarder’s head swivels forward and he or she continues on. The trick requires the snowboarder to briefly face rearward.
Anderson acknowledged in his deposition that heading into the jump, he found it hard to see anything beyond the hill. He also agreed that as he executed the stunt, his head faced rearward.
His momentum carried him to his right, toward the ski slope where Soderberg had paused to look behind her to track the progress of her young student. Anderson then smashed into her back from the left, Balmer said.
She never saw him, he said.
“All she knows is she turns to look at her 5-year-old and then feels like she’s been hit by a truck,” Balmer said.
Soderberg sued in November 2016, charging that Anderson “negligently collided with her when he failed to snowboard under proper control.”
In a supplemental civil court cover sheet filed on Nov. 16, 2016, Anderson disputed both his liability and “the nature and extent of plaintiff’s alleged injuries.”
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Summary judgment motion
Just as the case was approaching final discovery for trial, Fluegel said, Anderson moved for summary judgment to dismiss.
During the March 6 Duluth court hearing on that motion, Eden Prairie attorney Steven Pope argued for Anderson. He said that the plaintiff, first by choosing to ski and then in later testimony, acknowledged that skiing is dangerous and assumed all risks.
“She didn’t go onto that hill thinking that skiing wasn’t a risky sport,” Pope says in the March 6 hearing’s transcript.
Harris agreed. On April 5, he issued summary judgment dismissing Soderberg’s case.
Balmer said the ruling was unexpected. In part, Harris based it on Soderberg’s deposition testimony in which she said she understood skiing is risky, Balmer said. But the judge seemed to ignore what she said immediately after that, Balmer said.
Soderberg asserted that in 30-plus years as a skier, she had never seen a high-speed collision on a trail designated for slow-skiing, Balmer recounted. Therefore, she never anticipated the kind of risk to which Anderson exposed her, Balmer said.
“Because she said that, I felt Judge Harris was pretty much forced to give this to the jury,” Balmer said. “When he didn’t, I was quite surprised.”
On April 5, Soderberg appealed. On Jan. 16, the appeals panel handed down its decision to reverse Harris and remand the case to district court for trial.
Fluegel said he thinks the panel was heavily influenced by two recent Supreme Court rulings, Montemayor v. Sebright Products, Inc., and Senogles v. Carlson. While Worke never cites them in her ruling, both were discussed extensively during oral appellate arguments.
In Montemayor, a plaintiff brought a product liability suit against a manufacturer, asserting failure to warn and product defect claims. The state Supreme Court ruled July 12 that the question of risk foreseeability was too close a call to uphold summary judgment for the company. Justices remanded the case for trial.
In Senogles, a child suffered brain damage in a near drowning at a party and a landowner was sued for allegedly failing to carry out a “duty of care.” The Court of Appeals had ruled the 4-year-old should have foreseen his risk of drowning in a river. But the Supreme Court reversed on Sept. 27, saying the boy’s ability to foresee such risk was a question for a jury to decide.
Fluegel said that the same principles apply to Soderberg’s case.
Balmer agreed. “What the Supreme Court is telling us in both decisions is that where it is a close call on whether the person should have realized the risk of harm, the jury should decide it,” he said. “The judge should not.”
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Potential implications
If the case stands in Minnesota jurisprudence, Fluegel said, it could have reverberations statewide with respect to the risks athletes accept when they participate in sports.
No longer would a plaintiff’s blanket acceptance of a sport’s general risks protect defendants from liability for unexpected or inept behavior, Fluegel said. Outcomes would depend heavily on each case’s unique circumstances, he said.
“We are now going to make a more exacting analysis of what, objectively, should someone in the plaintiff’s position have known,” he said. “Was the risk within the realm of what is normally expected? Or was it completely outside the box?”
In other words, he said, henceforth context would matter.
Nathan Cariveau, who argued Anderson’s case at the Court of Appeals, declined to comment about the case. But the lawyer did say it is undecided whether Anderson will petition for review to the state Supreme Court.
Balmer said he expects the case will go back to the Sixth District Court in St. Louis County and be tried sometime in the coming spring.
