This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







John Kudja, et al.,





Troy Becker, et al.,




Filed December 7, 2004

Reversed and remanded
Klaphake, Judge


Wright County District Court

File No. CX-03-3831



Wilbur W. Fluegel, Fluegel Law Office, 150 South Fifth Street, Suite 3475, Minneapolis, MN  55415; and


Harry A. Sieben, Jr., Sieben, Grose, VonHoltum & Carey, Ltd., 900 Midwest Plaza East, 800 Marquette Avenue, Minneapolis, MN  55402 (for appellants)


Gordon H. Hansmeier, Troy A. Poetz, Richard Sobalvarro, Rajkowski Hansmeier Ltd., 11 Seventh Avenue North, P.O. Box 1433, St. Cloud, MN  56302 (for respondents)


            Considered and decided by Klaphake, Presiding Judge, Stoneburner, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellants John Kudja and his wife, Crystal Kudja, challenge the district court’s grant of summary judgment to respondents Troy and Barbra Becker.  They argue that the district court erred as a matter of law in determining that their action against respondents was barred by the doctrine of primary assumption of the risk.  Appellants insist that the doctrine does not apply here, where the evidence suggests that respondents were concerned that no one attempt to dive off of their dock, but failed to provide a reasonable warning to appellant John Kudja, who knew of the danger of diving into water of unknown depth, but could not fully appreciate that danger because he watched a friend safely dive off the dock in front of him.  Because respondents owed some duty to appellant and because there are genuine issues of fact as to whether appellant fully appreciated the risk, we reverse and remand.


            On appeal from a grant of summary judgment, this court must determine whether there are any genuine issues of material fact and whether the district court erred in its application of the law.  DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997).  We must view the evidence in the light most favorable to the party against whom the motion for summary judgment was granted.  Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995).

            We begin with an inquiry into whether respondents owed appellant a duty.  See Louis v. Louis, 636 N.W.2d 314, 318 (Minn. 2001).  In general, a landowner is not liable for harm to an entrant caused by a known or obvious danger unless the landowner should have anticipated the harm despite its known or obvious nature.  Id. at 319 (citing Restatement (Second) of Torts § 343A).  Here, there is evidence to suggest that respondent Barbra Becker mentioned to another person that she hoped no one would attempt to dive off the dock.  Even in her deposition, she acknowledged that had appellant asked if he could dive off her dock, she would have warned him that it was very shallow.  We therefore conclude that respondents owed some duty to their guests to warn them of the dangers of diving off of their dock.[1]

            Under a primary assumption of the risk analysis, we must consider whether appellant voluntarily assumed well-known, incidental risks; as to those risks, respondents are relieved of their duty to warn.  See Olson v. Hansen, 299 Minn. 39, 44, 216 N.W.2d 124, 127 (1974).  A plaintiff’s assumption of risk is a question of law only where a reasonable person could draw a single conclusion from the facts.  Hollinbeck v. Downey, 261 Minn. 481, 486, 113 N.W.2d 9, 13 (1962); Andren v. White-Rodgers Co., 465 N.W.2d 102, 105 (Minn. App. 1991), review denied (Minn. Mar. 27, 1991).[2]

            Primary assumption of the risk applies when a plaintiff (1) has knowledge of the risk; (2) appreciates the risk; and (3) has a chance to avoid it but voluntarily chooses to undertake the risk.  Andren, 465 N.W.2d at 104-05.  Here, appellant had knowledge of the risk:  he knew that he could seriously injure himself by diving into shallow water and that he should determine the depth of the water before diving off a dock.

            Nevertheless, we cannot conclude as a matter of law that appellant fully appreciated the risk presented here.  Appellant dove off the dock only after he watched his friend, who apparently had swum in this particular lake before, safely dive off the dock in front of him.  Because genuine issues of fact exist as to whether appellant voluntarily assumed well-known, incidental risks, the district court erred in determining that his action was barred by the doctrine of primary assumption of the risk. 

            We therefore reverse the district court’s grant of summary judgment and remand for further proceedings.[3]

            Reversed and remanded.

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

[1]  It is unclear whether diving off a dock into dark, murky water of unknown depth qualifies as a danger so obvious that no warning was necessary.  In similar cases, courts have held that the injured party should have known better than to dive into water of unknown depth, despite any knowledge on the part of the landowner regarding the dangers of diving.  See, e.g., Harper v. Herman, 499 N.W.2d 472, 475 (Minn. 1993) (holding boat owner owed no duty to warn social guest of depth of water); Snilsberg v. Lake Wash. Club, 614 N.W.2d 738, 744 (Minn. App. 2000) (holding club and its members had no duty to protect invitee from risk of diving off dock at night), review denied (Minn. Oct. 17, 2000).  These cases, however, do not involve the liability of a landowner to social guests.  See Louis v. Louis, 636 N.W.2d 314, 320 (Minn. 2001) (stating that special relationship doctrine inapplicable to cases involving premises liability and distinguishing Herman and other cases on that basis).

[2]  In a recent law review article, Professor Michael Steenson discusses the difficulty courts have had in determining the relationship between primary assumption of the risk and the existence of a legal duty.  Michael K. Steenson, The Role of Primary Assumption of Risk in Civil Litigation in Minnesota, 30 William Mitchell L. Rev. 115, 116 (2003).  Steenson notes that, with the exception of two recent supreme court cases, the court has tended to limit the doctrine of primary assumption to certain types of activities and has made it clear that the doctrine relates to the duty issue.  Id. at 147.  Steenson advocates that courts continue to limit the application of primary assumption of the risk and consider it as part of the duty analysis, not as a separate inquiry after a duty is found to exist.  Id. at 174-75.

[3]  Appellant also argued that respondents “enlarged” the risk by allowing alcohol to be consumed and by failing to intervene after appellant’s friend dove off the dock in front of appellant.  See Rusciano v. State Farm Mut. Auto. Ins. Co., 445 N.W.2d 271, 273 (Minn. App. 1989) (holding that although plaintiff assumed risk of injury by stepping in front of oncoming vehicle to play “chicken,” he did not assume enlargement of risk by driver’s conduct in accelerating and failing to brake).  Enlargement, however, assumes some type of improper or wrongful conduct on the part of the defendant.  Here, there is no evidence in the record to show that respondents saw the first person dive into the lake or that they had an opportunity to stop appellant from diving in.  With respect to the consumption of alcohol, it is undisputed that appellant was an adult of legal drinking age, that appellant supplied his own alcohol, and that respondents did not provide any alcohol to appellant.  We therefore conclude that no facts have been presented to which the doctrine of enlargement might be applied.