This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-01-1755

 

Tiffany Warman, a minor child,
Appellant,

vs.

Lynn L. Gaber, defendant and third party plaintiff,
Respondent,

Debra Warman,
Third Party Defendant.

 

Filed March 26, 2002

Affirmed

Parker, Judge*

 

Olmsted County District Court

File No. C1002432

 

 

T. Oliver Skillings, Skillings & Associates, 100 Voyager Bank Building, 107 North Second Street, Mankato, MN 56001 (for appellant)

 

Robert G. Benner, Dunlap and Seeger, P.A., Suite 505, 206 South Broadway, P.O. Box 549, Rochester, MN 55903-0549 (for respondent)

 

            Considered and decided by Peterson, Presiding Judge, Halbrooks, Judge, and Parker, Judge.

U N P U B L I S H E D  O P I N I O N

 

PARKER, Judge

 

Appellant Tiffany Warman injured her arm while playing on a trampoline owned by, and on the property of, her aunt, respondent Lynn Gaber.  Tiffany sued and Gaber moved for summary judgment, which the district court granted because no duty of care arose when appellant’s mother was present and because appellant primarily assumed the risk.  On appeal, Tiffany Warman contends that (a) Gaber failed to supervise the children playing on the trampoline; and (b) because of her age and inexperience, she did not assume the risk.  We affirm the district court.

FACTS

 

In June 1998, Tiffany Warman, then 12 years old, and her mother, Debra Warman, were visiting her aunt Lynn Gaber’s home.  After obtaining her mother’s permission, Tiffany went to play with her two cousins on respondent Gaber’s backyard trampoline.  Gaber and Debra Warman remained inside the house, while Tiffany and her cousins played a game that she had invented; the game involved placing a hockey puck on the trampoline, jumping, and trying to avoid the puck.  During the game, Tiffany fell off and injured her arm.  Tiffany stated, “I wasn’t watching where I was going and I fell off.”  Her mother admitted responsibility for supervising Tiffany that day. 

D E C I S I O N

 

On review of a summary-judgment order, this court views the facts in the light most favorable to the party against whom judgment was granted, and determines whether there are any genuine issues of fact and whether the district court correctly applied the law.  Offerdahl v. Univ. of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988).  Summary judgment on a claim is mandatory against a party with the burden of proof who fails to establish an essential element of the claim, because that failure renders all other facts immaterial.  Lloyd v. In Home Health, Inc., 523 N.W.2d 2, 3 (Minn. App. 1994). 

I.

Appellant first argues that respondent breached a duty of care by failing to supervise her and by maintaining unsafe premises.

Generally, when a parent is present, the responsibility to provide for a child’s care and safety rests with the parent, and a third party does not stand in a special relationship to the child.

 

Sunnarborg v. Howard, 581 N.W.2d 397, 399 (Minn. App. 1998) (citations omitted), review denied (Minn. Sept. 22, 1998).

Appellant has offered no evidence that respondent assumed any responsibility of supervision or care over appellant.  In fact, the evidence shows that (1) appellant’s mother permitted appellant to jump on the trampoline; (2) appellant did not ask respondent for permission or instructions with respect to the trampoline; and (3) appellant’s mother stated that she was in charge of appellant that day.

Nevertheless, appellant argues that respondent should have supervised appellant because the trampoline manufacturer prescribes adult supervision of children using it.  Appellant cites to the trampoline warnings, which state “[i]t is the responsibility of the supervisors of trampoline users to provide knowledgeable and mature supervision.”  But appellant’s mother had the duty to supervise appellant that day. 

Appellant additionally contends that respondent breached a duty of care owed to her by maintaining a dangerous activity on her land.  Appellant does not allege that the trampoline was misassembled or that respondent improperly instructed her to use the trampoline.  Rather, appellant claims that respondent owed her a duty because the trampoline was an attractive nuisance, giving rise to the doctrine that places liability on landowners who know or should reasonably know that child trespassers frequent a dangerous, artificial condition on their land and fail to protect them reasonably against the harm.  See Sirek by Beaumaster v. State, Dep’t of Natural Res., 496 N.W.2d 807, 810 (Minn. 1993) (stating elements of attractive-nuisance doctrine: (1) knowledge of child trespassers; (2) unreasonably dangerous condition; (3) child too young to understand danger; (4) high risk outweighs utility; and (5) failure to protect).  Appellant’s reliance on attractive nuisance is inapposite because this case involves the duty of a landowner to an entrant, not a trespasser.  Moreover, other jurisdictions have held that a trampoline is not an attractive nuisance.[1]

II.

A landowner owes no duty of care to warn or guard against an obvious danger, unless the landowner should anticipate harm despite obviousness.  Baber v. Dill, 531 N.W.2d 493, 495-96 (Minn. 1995).  “If no duty exists there is no need to determine whether a person assumed the risk thus relieving the defendant of the duty.”  Id. at 495.  Appellant contends that she did not appreciate the dangers involved in unsupervised trampoline use with other children. 

Primary assumption of risk applies to a plaintiff “who voluntarily exposes [her]self to a known and appreciated risk arising from another’s negligence.”  Parr v. Hamnes, 303 Minn. 333, 337, 228 N.W.2d 234, 237 (1975).  A plaintiff must (1) have knowledge of the risk; (2) appreciate the risk; and (3) voluntarily choose to chance the risk when faced with a choice of avoiding it.  Andren v. White-Rodgers Co., 465 N.W.2d 102, 104-05 (Minn. App. 1991), review denied (Minn. Mar. 27, 1991).

            The potential danger in trampoline use was evident to appellant because she and her family owned a nearly identical trampoline and because she had read the warnings on trampoline use.  Appellant also appreciated the risks involved because she and her mother made others sign a liability waiver before they could use appellant’s trampoline, and because she admitted in her deposition that, at age 12, she understood the dangers associated with trampoline use.  Appellant conceded that trampoline use could cause not only head and neck injuries but also a broken arm or leg because, as she stated, “it’s common sense.”  Appellant also voluntarily played on the trampoline that day after discussing it with her mother and obtaining her mother’s permission. 

            Appellant contends that respondent’s practice of permitting multiple users and failing to supervise children on the trampoline vitiate any assumption of risk, especially given appellant’s youth and limited experience.  The evidence shows that appellant knew that multiple users increased the risk of injury but voluntarily chose to use the trampoline with her cousins on that day.  Appellant had invented the trampoline game, and she introduced it to her cousins.  Moreover, respondent did not owe appellant a duty of supervision.  Respondent cannot be found legally responsible for appellant’s injury when appellant decided on her own to engage in a dangerous activity.  Thus, the district court did not err by granting summary judgment dismissing appellant’s action. 

            Affirmed.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] See, e.g., Little by Little v. Bell, 719 So.2d 757, 761 (Miss. 1998) (landowner only owes a duty not to engage in willful or wanton misconduct toward licensee and was not liable to child stepping off trampoline onto milk crate); Riley v. Brasunas, 438 S.E.2d 113, 115 (Ga. Ct. App. 1993) (“the obvious risk involved in the game [jumping from a trampoline to a chin-up bar, swinging on the bar, and landing in the next room] invented by the boys was falling and hurting oneself”); Kennedy by Kennedy v. Graham, 516 So.2d 572, 574 (Ala. 1987) (a “trampoline, however, cannot be said to create an unreasonable risk of injury of which the children were unaware”).