This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






Steven Louis, et al.,





Robert Louis,



Filed January 9, 2001

Affirmed in part, reversed in part, and remanded.

Amundson, Judge


Goodhue County District Court

File No. CX99798


David G. Johnson, 16670 Franklin Trail Southeast, Suite 240, Prior Lake, MN 55372 (for appellants)


Thomas A. Gilligan, Jr., Murnane, Conlin, White and Brandt, 444 Cedar Street, 1800 Piper Jaffray Plaza, St. Paul, MN 55101 (for respondent)


            Considered and decided by Amundson, Presiding Judge, Schumacher, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N




Appellants, husband and wife, commenced a civil action after husband sustained injuries from sliding head-first into respondent’s swimming pool on a slide adjacent to the pool and attached to the deck.  The district court denied summary judgment on appellant’s primary assumption of risk but granted summary judgment on the ground that respondent did not owe a duty of care to appellant.  Appellants challenge the district court’s determination on duty, while respondent challenges the determination as to primary assumption of risk.  We reverse the district court’s grant of summary judgment on the issue of duty and remand.




On August 2, 1997, appellant Steven Louis slid head first down a water slide into a swimming pool owned by his brother, respondent Robert Louis. After Steven Louis broke the water surface, his head struck the bottom of the pool fracturing a vertebra in his neck and leaving him paralyzed.  Prior to using the slide, Steven Louis had watched others use it.  He was also aware that the water at the bottom of the slide was only waist high. 

Robert Louis purchased the pool from its previous owner and assembled it himself, installing the slide at the shallow end of the pool.  He posted signs around the pool that advised against diving.  The slide itself, however, was posted at the top with the manufacturer’s directions for performing a head-first “belly slide.”  Robert Louis admitted he noticed heel marks (impressions in the elastic lining) on the bottom of the pool that he assumed resulted from the impact of sliders’ feet. 

After the incident, Steven Louis and his wife Margaret Louis sued Robert Louis for negligence, alleging that his negligence was the direct and proximate cause of Steven Louis’s injuries.  On June 29, 2000, the district court granted summary judgment to respondent Robert Louis, finding that he owed no duty of reasonable care for Steven Louis’s safety.  However, the district court denied Robert Louis’s motion for summary judgment on the issue of Steven Louis’s primary assumption of risk, citing the existence of a genuine issue of material fact.

Steven and Margaret Louis appeal the district court’s grant of summary judgment. Robert Louis seeks review of the district court’s denial of summary judgment on the issue of primary assumption of risk.




In reviewing a district court’s grant of a motion for summary judgment, our inquiry is twofold: (1) whether the district court was presented with any genuine issues of material fact and (2) whether its application of the law was clearly erroneous.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990) (citation omitted).  We must view the evidence in a “light most favorable to the party against whom summary judgment was granted.”  Vetter v. Security Continental Ins. Co., 567 N.W.2d 516, 520 (Minn. 1997) (citation omitted).  We can find that no genuine issue of material fact exists where “the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.”  DLH Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (quotation omitted).

I.  Duty

In order to sustain an action in negligence, the plaintiff must first prove that the defendant owed a duty to plaintiff.  Johnson v. State, 553 N.W.2d 40, 49 (Minn. 1996).  A duty to warn arises only where the risk of harm is reasonably foreseeable.  See Larson v. Larson, 373 N.W.2d 287, 289 (Minn. 1985) (concluding risk was too speculative to impose duty to warn).  Generally, a determination of the existence of legal duty is to be decided by the court as a matter of law.  Yunker v. Honeywell, Inc., 496 N.W.2d 419, 421 (Minn. App. 1993), review denied (Minn. Apr. 20, 1993).  It is longstanding legal tradition in Minnesota that close questions of foreseeability be referred to the factfinder for resolution.  Lundgren v. Fultz, 354 N.W.2d 25, 28 (Minn. 1984).

The central issue in this action is whether Robert Louis was obliged to warn his brother of the dangers inherent in sliding head-first into the shallow end of the pool.  In similar cases, courts have placed the onus on the injured party who should have known better than to dive into water of unknown depth, despite any knowledge the defendant may have had regarding the danger of diving.  See, e.g., Harper v. Herman, 499 N.W.2d 472, 475 (Minn. 1993) (holding that a boat owner had no duty to warn a social guest of the depth of water); Snilsberg v. Lake Washington Club, 614 N.W.2d 738, 744 (Minn. App. 2000) (holding that a club and its members had no duty to protect an invitee of the club’s caretaker from the risk of diving from a dock into a lake at night), review denied (Minn. Oct. 17, 2000).  But the facts of the present case are more complicated.  Because of the “belly-slide” instructions atop the slide, Steven Louis was faced with at best contradictory information about the safety of sliding head-first into the pool.  A jury should be allowed to determine whether the instructions on the slide about “belly-sliding” required Robert Louis to place the slide in a position that would have channeled the slider into the pool at a safe depth.  In short, the jury should also be allowed to decide whether Robert Louis may have created the danger by erecting the water slide in a too shallow place in the pool.  These facts are certainly not so clear that a rational trier of fact could not find for the nonmoving party.  To the contrary, this is the sort of factual determination that is most appropriate for a jury.  Therefore the district court’s grant of summary judgment on this issue was inappropriate and we reverse and remand.

II.  Assumption of Risk

The district court denied summary judgement on the issue of primary assumption of risk.  Primary assumption of risk is not strictly a defense, but rather a legal theory wherein the parties “have voluntarily entered a relationship in which plaintiff assumes well-known, incidental risks.”  Andren v. White-Rodgers Co., 465 N.W.2d 102, 104 (Minn. App. 1991) (quotation omitted), review denied (Minn. Mar. 27, 1991).  The doctrine serves as a limit to a predetermined duty that a defendant owes to a plaintiff.  Andren, 465 N.W.2d at 105.  The plaintiff’s assumption of risk is a question of law only where a reasonable person could draw a single conclusion from the facts.  Id.  Since this doctrine first requires a determination that Robert Louis owed a duty to Steven Louis, and because the facts of this case are not so clear as to direct a reasonable person to a single conclusion, we affirm the district court’s denial of summary judgment on this issue of primary assumption of risk.

            Affirmed in part, reversed in part, and remanded.