
    Julie A. SODERBERG, Appellant, v. Lucas ANDERSON, Respondent
    A17-0827
    Court of Appeals of Minnesota.
    Filed January 16, 2018
    
      Wilbur W. Fluegei, Minneapolis, Minnesota; and James W. Balmer, Duluth, Minnesota (for appellant)
    Nathan T. Cariveau, Eden Prairie, , Minnesota (for respondent)
    Considered and decided by Rodenberg, Presiding Judge; Worke, Judge; and Reilly, Judge.
   OPINION

WORKE, Judge

Appellant argues that the district court erred by granting summary judgment in favor of respondent' on the basis of primary assumption of the risk because genuine issues of material fact exist as to whether (1) appellant appreciated the specific risk of harm that caused her .injuries and (2) appellant’s actions enlarged the inherent risk of skiing. We reverse and remand.

FACTS

In January 2016, appellant Julie A. So-derberg was a ski instructor at Spirit Mountain in Duluth. Soderberg was an accomplished skier, with approximately 38 years of experience. On January 3, Soder-berg was giving a ski lesson to a child on the Four Pipe trail, which is marked as a “slow skiing area.” At the same time, respondent Lucas Anderson was snowboarding on the Scissor Bill trail, which is next to Four Pipe. Anderson had approximately 20 years of snowboarding experience. At a certain point on the. hill, Scissor Bill and Four Pipe merge, with Scissor Bill continuing. on “skier’s left” of Four. Pipe. Anderson slowed down as he merged onto the left side of Four Pipe from Scissor Bill and then increased his speed. Anderson reached an area with a hill and performed his “signature move,” a 180-degree blind turn, also known as a “backside 180.” Anderson testified in his deposition that, heading into the jump, it was ’difficult to see the area behind the hill and agreed that for a “few seconds during the execution of the turn,” he was not looking ahead of where he was going.

As Anderson landed, he crashed into Soderberg. Neither Anderson nor Soder-berg saw each other before the impact, Soderberg testified that she suffered severe injuries, including a torn ÁCL, a herniated disk in her back, and a dissected carotid artery.

In November 2016, Soderberg brought suit against Anderson, alleging that he negligently collided with her when he failed to snowboard under proper control. Anderson moved for summary judgment, which the district court granted. This appeal followed.

ISSUE

Did the district court err by granting respondent’s motion for summary judgment?

ANALYSIS ’

Soderberg argues that the district court erred by granting summary judgment in Anderson’s favor for two reasons: (1) a genuine issue of material fact exists concerning, whether she appreciated the specific risk of being crushed from above and (2) Anderson cannot, raise primary assumption of the risk as a defense because his.actions enlarged the inherent risks of skiing.

This court reviews a district court’s summary judgment decision de novo. Riverview Muir Doran, LLC v. JADT Dev. Grp., LLC, 790 N.W.2d 167, 170 (Minn. 2010). This court must determine whether (1) there are any genuine issues of material fact and (2) if the district court erred in its application of the law. Osborne v. Twin Town Bowl, Inc., 749 N.W.2d 367, 371 (Minn. 2008). This court views the evidence in the light most favorable to the party against whom summary judgment was granted. STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76-77 (Minn. 2002).

Assumption of the risk

“Generally a question for the jury, the applicability of primary assumption of the risk may be decided by the court as a matter of law when reasonable people can draw only one conclusion from undisputed facts.” Peterson by Peterson v. Donahue, 733 N.W.2d 790, 791-92 (Minn. App. 2007) (quotation omitted), review denied (Minn. Aug. 21, 2007). This court reviews that decision de novo. Id. at 792.

Primary assumption of the risk arises as a defense to negligence liability when parties voluntarily enter into a relationship in which the plaintiff assumes “well-known, incidental risks.” Snilsberg v. Lake Wash. Club, 614 N.W.2d 738, 743 (Minn. App. 2000) (quotation omitted), review denied (Minn. Oct. 17, 2000). The defendant has no duty to protect the plaintiff from those well-known, incidental risks, and the defendant is not negligent if the plaintiffs injury arises from such a risk. Id. “By voluntarily entering into a situation where the defendant’s negligence is obvious, the plaintiff accepts and consents to it and agrees to undertake to look out for himself and relieve the defendant of the duty.” Andren v. White-Rodgers Co., 465 N.W.2d 102, 105 (Minn. App. 1991) (quotation omitted), review denied (Minn. Mar. 27, 1991).

Primary assumption of the risk is typically applied in cases involving inherently dangerous sporting activities. Grady v. Green Acres, Inc., 826 N.W.2d 547, 550 (Minn. App. 2013). This doctrine applies when a person who voluntarily takes a risk “(1) knows of the risk, (2) appreciates the risk, and (3) has a chance to avoid the risk.” Peterson, 733 N.W.2d at 792. “Generally, the issue of whether ... a risk is inherent in a sport is a jury question, but when the evidence is conclusive, ... there is no fact issue for a jury to decide.” Schneider by Schneider v. Erickson, 654 N.W.2d 144, 151 (Minn. App. 2002).

In Peterson, we held that “primary assumption of the risk applies to actions between skiers who knew and appreciated the risk of collision.” 733 N.W.2d at 793. We also held that “[c]ollision with another skier is a risk inherent in skiing. Primary assumption of the risk precludes liability for collisions between skiers who know and appreciate the well-known and inherent risk of such collisions.” Id. The district court relied heavily upon our decision in Peterson as the basis for its ruling in Anderson’s favor.

Soderberg asserts that, notwithstanding our decision in Peterson, a genuine issue of material fact exists as to whether being crushed from above in a slow-skiing area is a well-known, inherent risk of skiing. She differentiates between the general risk of collisions and the specific risk of being crushed from above in a slow-skiing area.

In Moe v. Steenberg, the supreme court explained that an ice skater “assumed risks that were inherent in the sport or amusement in which she was engaged, such as falls and collisions with other skaters brought about by her own or other skaters lack of skill or. clumsiness. Such things are not extraordinary occurrences in skating rinks.” 275 Minn. 448, 451, 147 N.W.2d 587, 589 (Minn. 1966) (quotation omitted). The supreme court also acknowledged that, “[t]o be sure, one who skates does not assume every risk arising from the negligent acts or omissions of others. The conduct of other skaters may be so reckless or inept as to be wholly unanticipated.” Id.

Here, the record contains little evidence concerning whether the sort of accident that befell Soderberg is a common occurrence in skiing or snowboarding. So-derberg admitted her involvement in a pri- or skiing accident, but the circumstances surrounding that accident bear greater similarity to Peterson than this case. She testified in her deposition that she “was down by a chairlift and a person was out of control and hit [her]. He was hot-dogging coming into the bottom of the run. Should have slowed his speed and didn’t.” Neither Soderberg nor Anderson testified in their depositions as to whether they had seen or heard of an accident similar to the collision in this case. The only evidence in the record concerning the regularity of this sort of accident comes from Soderberg’s deposition, in which she testified that she did not believe there was a reasonable amount of risk that someone could “slam into you” in a slow-skiing area.

While collisions are an inherent risk of skiing, it is unclear whether collisions in which one skier or snowboarder goes off a jump and lands on top of another skier in a slow-skiing area are a well-known, inherent risk of skiing. Therefore, that question should go to a jury. See Schneider, 654 N.W.2d at 151. Based on the record, a genuine issue of material fact exists as to whether Soderberg appreciated the risk that she could be crushed from above in a slow-skiing area. Therefore, we conclude that the district court erred by granting summary judgment in Anderson’s favor.

Enlargement of the risk

In the alternative, Soderberg argues that Anderson cannot raise a primary-assumption-of-the-risk defense because his activity enlarged the risk of harm. Soder-berg did not raise this exact argument before the district court.

This court generally does not consider issues that were not presented to and considered by the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). “Nor may a party obtain review by raising the same general issue litigated below but under a different theory.” Id. “This is not, however, an ironclad rule.” Putz v. Putz, 645 N.W.2d 343, 350 (Minn. 2002) (quotation omitted). This court may take action “as the interest of justice may require.” Minn. R. Civ. App. P. 103.04. We may consider factors such as whether the issue was raised prominently in briefing and whether the issue was implicit in or closely akin to the arguments below. Watson v. United Servs. Auto. Ass’n, 566 N.W.2d 683, 688 (Minn. 1997).

While Soderberg did not raise the enlargement-of-the-risk argument before the district court, this argument features prominently in the Peterson decision, upon which both parties and the district court relied. See 733 N.W.2d at 793 (holding that the respondent did not enlarge the risk inherent in skiing by failing to look up the hill for other skiers). Furthermore, both parties addressed this argument in their appellate briefs, and it is closely akin to an argument Soderberg raised before the district court. Therefore, we will consider whether a genuine issue of material fact exists as to whether Anderson’s actions enlarged the inherent risk.

“Primary assumption of the risk may not apply if the defendant enlarged the risk to the plaintiff.” Grady, 826 N.W.2d at 552 (quotation omitted). “[I]n order for there to be an enlargement of the risk there must be a new risk and only a limited time to react.” Schneider, 654 N.W.2d at 152 (quotation omitted).

The district court concluded that Anderson was snowboarding “relatively fast” on Four Pipe, which has signs marking it as a “slow skiing area.” The district court also concluded that Anderson performed a “ ‘blind 180 degree spin’ maneuver while coming over a steeper part of the terrain and struck [Soderberg] from behind,” As we held in Peterson, there are inherent risks involved in skiing, one of which is the risk of collisions. 733 N.W.2d at 793. However, when Anderson exceeded the.posted speed in a slow-skiing area, performed a maneuver rendering him unable to see the area in front of him for a brief period of time, and went off a jump without the ability to see the landing area, he may. have created a new, unavoidable risk of crushing Soderberg from above. And unlike cases in which we have held that the enlargement-of-the-risk doctrine was inapplicable, the risk that Soderberg would be crushed by a snowboarder jumping above her in a slow-skiing area was arguably not apparent to her when she decided to ski down the hill. Cf. id. (holding that a skier’s conduct did not increase the inherent risk of skiing when the other skier came from behind on the hill); Schneider, 654 N.W.2d at 151-52 (holding that failure to comply with the “no-head-shots rule” in a game of paintball did not present a new and enlarged risk to the plaintiff); Jussila v. U.S. Snowmobile Ass’n, 556 N.W.2d 234, 237 (Minn. App. 1996) (holding that the failure to provide greater protection for spectators at a snowmobile race did not present the plaintiff with a new risk to which he had only limited time to react), review denied (Minn. Jan. 29, 1997).

Based on this record, a genuine issue of material fact exists as to whether Anderson enlarged the inherent risk of skiing. Consequently, summary judgment on' the basis of the primary-assumption-of-the-risk doctrine was inappropriate. See Snilsberg, 614 N.W.2d at 747 (affirming denial of summary judgment on the basis that the record contained evidence that the defendant’s conduct may have enlarged ;or enhanced the inherent risk assumed by the plaintiff).

DECISION

Because genuine issues of material fact exist as to whether Soderberg’ appreciated the inherent risk that she could be crushed from above in a slow-skiing area and as to whether Anderson enlarged the inherent risk of skiing, we hold that the district court erred by granting Anderson’s motion for summary judgment.

Reversed and remanded.  