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William Mitchell Law Review

Article Title

The Role of Primary Assumption of Risk in Civil Litigation in Minnesota

Publication Information

30 William Mitchell Law Review 115 (2003-2004)

Abstract

This article focuses on primary assumption of risk, which is the facet of assumption of risk that has created the most difficult problems, post-Springrose. The primary problem in understanding primary assumption of risk is in determining its relationship to the duty issue in tort law. A secondary and dependent problem is in determining the appropriate relationship between judge and jury for purposes of applying primary assumption of risk principles. Part two of the article begins with a short history of some of the key Minnesota cases involving assumption of risk in the employment context. Those decisions, perhaps more than any others, indicate the complexity and inconsistent treatment of assumption of the risk in Minnesota. Part three discusses Springrose v. Willmore, the first Minnesota post-comparative negligence act case to deal with assumption of risk. Part four discusses the Minnesota Supreme Court's primary assumption of the risk cases decided after Springrose, primarily to illustrate the substantial inconsistency in the court's approach to primary assumption of the risk issues. Part five discusses two illuminating Minnesota Court of Appeals cases that highlight the problems that can arise when Springrose is not tightly followed. That discussion is followed by part six, which is an analysis of a recent Eighth Circuit Court of Appeals opinion that devoted a substantial amount of space in an attempt to delineate primary assumption of risk principles in Minnesota. It provides an interesting insight into the difficulty that courts have in determining the place of primary assumption of risk in Minnesota law. The seventh part of the article examines the problems involved in instructing juries on primary assumption of risk. Given Minnesota's reliance on New Jersey law in Springrose, part eight compares Minnesota and New Jersey law, speculating on what the face of how Minnesota primary assumption of risk law would look had it followed more tightly the New Jersey Supreme Court's abolition of assumption of risk. Part nine compares Minnesota with the Restatement (Third) of Torts: Apportionment of Liability, which abolishes primary assumption of risk.