This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Board of Regents of the University of Minnesota,
Affirmed; motion granted
St. Louis County District Court
File No. C4-04-600932
Kim E. Brust, Conmy Feste Ltd., 200 Wells Fargo Center, 406 Main Avenue, P.O. Box 2686, Fargo, ND 58108-2686 (for appellant)
Mark B. Rotenberg, Jennifer L.
Considered and decided by Wright, Presiding Judge; Willis, Judge; and Portisky, Judge.*
Following her injury during cheerleading practice, appellant brought a negligence action. The district court granted summary judgment for respondent, concluding that respondent had no duty to protect appellant. Appellant now challenges the district court’s conclusions that (1) the parties lacked a special relationship and (2) appellant had undertaken primary assumption of the risk. Respondent moves to strike documents from appellant’s appendix. We affirm and grant the motion.
While a student at the
Dr. Gerald George, an expert in physical education, prepared an affidavit and report in which he concluded that the squad was not prepared to carry out the stunt because the squad had received inadequate instruction and supervision. Although the squad had practiced with a volunteer coach, on the date of the accident, this coach was no longer involved, and the squad was unsupervised.
The basketball cheerleading squad is part of a registered student organization on the UMD campus. Neither the men’s basketball team nor the basketball cheerleading squad generates a profit for UMD. For the 2001-02 school year, the UMD Department of Intercollegiate Athletics (the Department) contributed a total of $4,000 to all cheerleading organizations, approximately one-sixth of which was allocated to the basketball cheerleading squad. Paula LeBlanc, an associate administrator in the Department, used these funds to reimburse the squad for uniforms and travel expenses. LeBlanc also secured tryout and practice facilities for the squad, but she did not claim any authority over the manner of practice or the conduct of the volunteer coach.
Prior to the accident, the Department had contemplated imposing safety guidelines for cheerleading. Michael Wendinger, an assistant athletic trainer in the Department, sent a memorandum to LeBlanc on December 6, 2000. Observing that “many of the skills performed are inherently dangerous and have a high likelihood of causing catastrophic injury,” Wendinger attached proposed safety guidelines for LeBlanc’s review. LeBlanc later stated that she lacked the resources to evaluate the proposed guidelines and that no safety guidelines were adopted or communicated to UMD cheerleading organizations.
On May 16, 2003, Vistad sued respondent Board of Regents of the
review de novo the district court’s decision to grant summary judgment, viewing
the evidence in the light most favorable to the nonmoving party.
Vistad argues that the university
breached its duty to protect her, which was premised on their special
relationship. The existence of a duty of
care is a question of law, which we review de novo. Gilbertson v. Leininger, 599 N.W.2d 127,
Because modern law provides that a university is not ordinarily in loco parentis with its students, a university is not required to guarantee the safety of its students. Freeman v. Busch, 349 F.3d 582, 587-88 (8th Cir. 2003) (discussing cases holding that university no longer considered in loco parentis with students); see generally Spring J. Walton, In Loco Parentis for the 1990’s: New Liabilities, 19 Ohio N.U. L. Rev. 247, 251-57 (1992). Thus, no special relationship arises. Vistad argues that, because universities exert control over student-athletes and derive benefits from collegiate sports programs, a special relationship should exist. See generally James J. Hefferan, Jr., Note, Taking One for the Team: Davidson v. University of North Carolina and the Duty of Care Owed by Universities to Their Student Athletes, 37 Wake Forest L. Rev. 589, 605 (2002); Edward H. Whang, Comment, Necessary Roughness: Imposing a Heightened Duty of Care on Colleges for Injuries of Student-Athletes, 2 Sports Law. J. 25, 40, 43 (1995).
Three other jurisdictions have concluded that a
special relationship does not exist between a university and a student-athlete. One such case involved a scholarship
recipient in a prestigious football program, Orr v. Brigham Young Univ., 960 F. Supp.
1522, 1526-28 (D. Utah 1994), and another involved an intramural baseball
program that received minimal university support, Swanson v. Wabash Coll., 504 N.E.2d 327,
330-31 (Ind. Ct. App. 1987). Most
similar to the instant case is Fisher v. Northwestern State Univ., 624 So.2d 1308,
1309 (La. Ct. App. 1993), which involved a student who was injured while participating
in an unsupervised cheerleading organization. The Fisher court held that the
university owed no duty to the cheerleaders to provide adult supervision and,
therefore, was not liable.
To determine whether a special relationship exists under
Although it handled some administrative tasks for the cheerleading program, UMD otherwise exerted minimal control over the cheerleaders. UMD did not provide a coach to direct practices or otherwise impose rules on the participants. And UMD did not profit from either the basketball or cheerleading programs. Based on these considerations, the university was not in a position to protect Vistad from harm, nor could it be expected to do so. And nothing in the record suggests that Vistad was somehow vulnerable. The district court correctly decided as a matter of law that a special relationship did not exist between Vistad and the university. In the absence of a special relationship, the university was without a duty of care on which a negligence claim could be based.
Vistad next argues, contrary to the conclusion of the district court, that she did not undertake a primary assumption of the risk that would negate the university’s duty to protect her. When it is determined on undisputed facts that a plaintiff has undertaken a primary assumption of the risk, the defendant is relieved of the duty of care toward the plaintiff. Snilsberg, 614 N.W.2d at 744.
A plaintiff has
undertaken primary assumption of the risk when, with knowledge and appreciation
of the risk, the plaintiff voluntarily engages that risk instead of avoiding
it. Wagner v. Thomas J. Obert
Enters., 396 N.W.2d 223, 226 (
According to Vistad’s deposition testimony, she appreciated the risks from lack of supervision and the potential for injury by a fall when attempting to execute the stunt with the number of cheerleaders present. Vistad further admits that, when her squad attempted the stunt, she could have chosen not to participate. Even if the university affirmatively failed to supervise the cheerleading practice properly, its actions did not mask or cause an unexpected hazard. Because Vistad knew of the risks inherent in performing the stunt and participated in the stunt rather than avoiding it, the district court correctly held as a matter of law that Vistad had undertaken a primary assumption of the risk.
In addition to
opposing Vistad’s arguments as to a special relationship and primary assumption
of the risk, the university asserts that Vistad’s negligence is barred by
statutory immunity. Because this issue
was not considered or decided by the district court, we decline to address it here. See Thiele v. Stich, 425 N.W.2d 580, 582 (
moves to strike certain documents from the appendix submitted by Vistad. Under Minn. R. Civ. App. P. 110.01, the
record on appeal solely consists of “[t]he papers filed in the trial court, the
exhibits, and the transcript of the proceedings, if any[.]” Thus, we ordinarily are precluded from
considering documents that were not filed in the district court.
Affirmed; motion granted.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
 In support of her arguments for a special relationship,
Vistad cites several cases in which a duty of care was found between a school
district and its students. See Verhel
v. Indep. Sch. Dist. No. 709, 359 N.W.2d 579, 589-90 (
This outcome is in accord with other jurisdictions that have reached
the issue. See Regents
of Univ. of Cal. v. Superior Court, 48 Cal. Rptr. 2d 922, 925-26 (Cal. Ct. App.
1996) (holding that university was not liable, under doctrine of primary
assumption of risk, for falling death of student in rock-climbing class); Rendine
v. St. John’s Univ., 735 N.Y.S.2d 173, 174 (N.Y. App. Div. 2001)
(concluding that cheerleader assumed risk of injury from pyramid stunt); Zachardy
v. Geneva Coll., 733 A.2d 648, 650-51 (Pa. Super.