Case Problem 4.7
Defenses to Negligence

In the case of Peterson v. Donahue, the defense to a claim of negligence that would most likely be used by Donahue would be the assumption of risk defense. The requirements of the assumption of risk defense are: 1) knowledge of the risk and 2) voluntary assumption of the risk. Given that the plaintiff voluntarily entered into a risky situation, knowing there was risk involved, the defendant should not be liable for any damages.
For example, according to www.leagle.com, “Peterson was an eleven-year old boy who indicated during depositions taken in February 2006 that he was an experienced skier. Peterson stated that he had been skiing since the age of two, that his whole family skied, that he had been part of a ski racing team for four years, and even that he had raced the morning of the accident.”1 All of these facts indicate that Peterson was an experienced skier and knew the risks involved. Furthermore, www.leagle.com also states that Peterson “…was also uphill of Donahue and in control of his skiing at the time of the accident.”2 Still, according to Court Listener, “Peterson argued that Minnesota law has not recognized primary assumption of the risk between skiers. However, other cases support the inference that recognition of primary assumption of the risk between skiers would be consistent with the law. Such cases include, Manns v. Afton Alps, which affirmed summary judgment on the grounds that ski patrol volunteer riding on a snowmobile had primarily assumed risk of collision with a snowboarder and, Cooper v. Powder Ridge Ski Corp., in which a jury found that a skier who fell while skiing over unusual terrain had primarily assumed the risk of falling inherent in skiing.”2 Courts have applied primary assumption of risk in these cases, as well as the risk to actions between sporting participants. For this reason, Peterson’s appeal should be dismissed in my opinion.
Finally, as it is stated in the final brief of Moe v. Steenberg, “Minnesota case law is clear that a plaintiff cannot succeed on a negligence claim when he participates in a sport with inherent risks.”3 Therefore, the court would apply the assumption of risk defense and rule against Peterson in his claim. Donahue will not be liable for any damages because Peterson knew the risks in skiing and understood that collisions and accidents with injuries were possible.