This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2161

 

 

Alysia Vistad,
Appellant,

vs.

Board of Regents of the University of Minnesota,
Respondent.

 

 

Filed June 28, 2005

Affirmed; motion granted

Wright, Judge

 

 

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. Frisch, University of Minnesota, 360 McNamara Alumni Center, 200 Oak Street Southeast, Minneapolis, MN  55455-2006 (for respondent)

 

 

            Considered and decided by Wright, Presiding Judge; Willis, Judge; and Portisky, Judge.*

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, 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.

FACTS

 

While a student at the University of Minnesota’s Duluth campus (UMD), appellant Alysia Vistad was a member of its basketball cheerleading squad.  On January 29, 2002, Vistad fell and suffered a cervical spine fracture when the squad attempted a pyramid stunt at a practice.  Vistad later admitted that she was aware of the risks in performing the stunt and that, although she felt peer pressure to attempt the stunt, she could have refused to do so.

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 University of Minnesota (the university), alleging negligence.  The university moved for summary judgment, asserting that it had no duty to protect Vistad.  The district court granted the university’s motion for summary judgment.  The district court concluded that, because the university exercised little control over Vistad and Vistad had not entrusted her safety to the university, the university had no special relationship that resulted in a duty of care.  In the alternative, the district court held that Vistad knew of the difficulty of the pyramid stunt and that her assumption of the risk precluded the university from owing Vistad a duty of care.  This appeal followed.

D E C I S I O N

 

We review de novo the district court’s decision to grant summary judgment, viewing the evidence in the light most favorable to the nonmoving party.  Prior Lake Am. v. Mader, 642 N.W.2d 729, 735 (Minn. 2002).  Summary judgment is properly granted when the nonmoving party fails to establish a genuine issue of material fact and the moving party is entitled to judgment as a matter of law.  Minn. R. Civ. P. 56.03; DLH, Inc. v. Russ, 566 N.W.2d 60, 70 (Minn. 1997).  When the record lacks proof of any essential element of a claim, the moving party is entitled to summary judgment.  Housing & Redev. Auth. v. Lambrecht, 663 N.W.2d 541, 547 (Minn. 2003).  To survive a motion for summary judgment, a party cannot rely on mere denials or averments.  Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845, 848 (Minn. 1995).  Rather, when opposing summary judgment, a party has the burden to produce evidence of a disputed material fact.  Id. 

I.

 

            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, 130 (Minn. 1999).  In a negligence action, the plaintiff must first establish that the defendant had a duty of care.  Id.  A defendant does not have a duty to affirmatively protect a plaintiff from harm unless the parties have a special relationship.  Donaldson v. Young Women’s Christian Ass’n, 539 N.W.2d 789, 792 (Minn. 1995).  A special relationship exists if (1) the defendant is in a position to protect the plaintiff from harm and (2) the harm is one from which the defendant would be expected to protect others.  Id.  A special relationship ordinarily attaches to innkeepers, common carriers, possessors of land who hold it open to the public, and in circumstances involving person who are so vulnerable as to be deprived of ordinary opportunities for self-protection.  Harper v. Herman, 499 N.W.2d 472, 474 (Minn. 1993) (citing Restatement (Second) of Torts § 314A (1965)).

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.[1]  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).

Minnesota courts have not directly addressed in published authorities whether a university has a special relationship with a student-athlete in a sports program.  But a few foreign jurisdictions have reached this issue.  Of those, two have held that a special relationship exists.  In Davidson v. Univ. of N.C., 543 S.E.2d 920, 922 (N.C. Ct. App. 2001), a junior-varsity cheerleader was injured while practicing a stunt prior to a game.  The North Carolina Court of Appeals observed that, in addition to cheerleading at games, the university often relied on members of the squad as official school representatives for publicity purposes and inferred that, because the school exerted significant control over the students, “the students may have higher expectations with regard to the protection they will receive from the school.”  Id. at 927.In Kleinknecht v. Gettysburg Coll., 989 F.2d 1360 (3d Cir. 1993), an athlete died while participating in a collegiate lacrosse program.  Although the special relationship was not premised on the college receiving any special benefits from this program, the Third Circuit concluded that, because the player had been recruited by the school, he would reasonably expect due care “in a scheduled athletic practice for an intercollegiate team sponsored by the College under the supervision of College employees.”  Id. at 1367.  Both Davidson and Kleinknecht emphasized that this special relationship does not extend to all students and will not necessarily reach intramural sports or other student organizations.  Kleinknecht, 989 F.2d at 1368; Davidson, 543 S.E.2d at 928.

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.  Id. at 1311.

To determine whether a special relationship exists under Minnesota law, relevant factors include whether the plaintiff was vulnerable or expected some form of protection, and whether the defendant receives pecuniary gain or has some control over the plaintiff’s welfare.  Harper, 499 N.W.2d at 474-75; Snilsberg v. Lake Wash. Club, 614 N.W.2d 738, 744-45 (Minn. App. 2000), review denied (Minn. Oct. 17, 2000); Bigos v. Kluender, 611 N.W.2d 816, 820-21 (Minn. App. 2000), review denied (Minn. July 25, 2000).

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.

II.

            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 (Minn. 1986).  When a plaintiff participates in a sport, the plaintiff undertakes primary assumption of the risk with respect to inherent hazards of the sport.  Id.  But primary assumption of the risk does not negate the duty of a defendant who causes dangers beyond the hazards inherent to a sport.  Id.

            Several Minnesota cases have evaluated when a particular risk is inherent to a sport.  Examples of such inherent risks include slipping and falling while ice skating, Moe v. Steenberg, 275 Minn. 448, 450, 147 N.W.2d 587, 589 (1966), being hit with a paintball during a paintball match, Schneider ex rel. Schneider v. Erickson, 654 N.W.2d 144, 150 (Minn. App. 2002), and hitting something when diving into dark, shallow waters, Snilsberg, 614 N.W.2d at 746.  A defendant remains liable, however, for conduct that masks or causes an unexpected hazard.  Thus, a slip and fall while skating may be inherent to the sport, but not when an entrance to the rink is poorly illuminated and includes unforeseen obstacles.  Wagner, 396 N.W.2d at 225-26.  A collision while skiing may be inherent to the sport, but not when it involves a motorized vehicle parked at the base of the slope.  Verberkmoes v. Lutsen Mountains Corp., 844 F. Supp. 1356, 1359 (D. Minn. 1994).

            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.[2]

III.

            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 (Minn. 1988) (stating that, appellate court generally will not consider matters not decided by the district court).

IV.

            The university 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.  See State by Humphrey v. Delano Cmty. Dev. Corp., 556 N.W.2d 922, 924-25 (Minn. App. 1996), aff’d, 571 N.W.2d 233 (Minn. 1997).  Here, the relevant controverted documents consist of an undated letter from Vistad, Vistad’s chiropractic records, a medical authorization insurance form executed by Vistad, and purported rules and regulations for the UMD cheerleading squad.  Because the record does not include these documents, we grant the university’s motion to strike.

Affirmed; motion granted.