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34 William Mitchell law Review 1281 (2008)


The purpose of this article is to analyze Minnesota landowners law, with particular emphasis on the impact of Peterson v. Balach. Following a short history of Minnesota law governing possessors’ duties, including a discussion of pre-Peterson v. Balach and Adee v. Evanson cases, the article considers the question of why the courts, post-Peterson v. Balach/Adee v. Evanson, regularly return to pre-Peterson forms to resolve possessor liability issues, particularly in cases involving obvious dangers, and whether the phenomenon is a result of a wrong turn or is a reflection of a conscious policy choice intended to effectively repudiate the progressive position the court took in Peterson. After a comparison of the cases with products liability law concerning open and obvious dangers, the article considers more broadly the appropriate place of duty in tort law and how no-duty rulings affect the judge-jury relationship. The broader issue concerns the appropriate place of duty in tort law and how and when duty, and its sometimes alter ego, primary assumption of risk, should be used as a limitation on liability. The next section considers a format for avoiding the impact of the obvious danger rule. The focus there is on a set of cases in which the evidence established alternative approaches the defendants in those cases could have taken to avoid injury to the plaintiff, notwithstanding the obviousness of the danger. The final section raises questions concerning jury instructions and, whether in light of the court’s apparent return to pre-Peterson v. Balach standards, it is either appropriate or necessary to instruct juries according to the standards the appellate courts are actually applying in cases involving the duties of possessors of land.