This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Steven Louis, et al.,
Filed January 9, 2001
Affirmed in part, reversed in part, and remanded.
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.
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.
D E C I S I ON
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).