Pass Interference – Woman Injured Chasing Frisbee Thrown From Stage; Claims Barred as a Matter of Law (MN)

by

Strelow v. Winona Steamboat Days Festival Association (Minnesota)
(not published)

Plaintiff attended a festival organized by the defendant.  During a break in the music, representatives from a local radio station went on stage and began throwing t-shirts and Frisbees from the stage.  The Frisbees had tickets to the local zoo attached to them.  Plaintiff gestured as if she wanted to catch a Frisbee and one of the people on stage threw one in her direction, but it veered off course.  Plaintiff took took four to six steps diagonally and slightly backwards with her arms in the air, trying to catch it.  However, plaintiff fell down, rolled against a curb, and fractured her shoulder.

Plaintiff and her husband filed a lawsuit against the defendant event organizer, alleging that defendant failed to maintain a safe area and failed to warn plaintiff of a hazardous condition on the premises.  Plaintiff contended that she fell as a result of tripping on electrical cords that were “black and rubbery” and “bigger than extension cords.”  She indicated that she did not know whether they were connected to anything, she said she did not see them before she fell, and she had not previously walked in the area of the incident.  Plaintiff was unable to find any witnesses to her fall.

Defendant filed a motion for summary judgment, asserting (1) no evidence of a dangerous condition caused by defendant existed, (2) any alleged dangerous condition was open and obvious, (3) the defendant did not owe the plaintiff a duty because it had no actual or constructive notice of the alleged condition, and (4) plaintiff’s claims were barred by primary assumption of risk.  The trial court granted defendant’s motion, finding that plaintiff “failed to establish a prima facie case of negligence because no evidence was presented that any cords ran over the blacktop” in the area of the incident.  Plaintiff appealed.

On appeal, the Court of Appeals of Minnesota affirmed the trial court decision.  Initially, the Court disagreed with the trial court’s conclusion that the evidence was insufficient evidence to present a genuine issues of material fact as to whether plaintiff’s injury was caused by cords on the ground in the area of the incident.  The Court stated that plaintiff’s own deposition testimony stating that she tripped and fell over cords was sufficient to create a triable issue on that point.  However, the Court then noted that plaintiff was “also required to produce credible evidence tending to show either that respondent caused the cords to be placed where she fell, or knew or should have known about the existence of the cords,” but she failed to do so.  As explained by the Court:

“Here, [plaintiff] produced no evidence that any employee or agent of [defendant] knew that cords existed in the location of her fall.  She produced no evidence as to how long the cords had been there or who placed them there.  And she offered only speculation to support her theory that the cords could have connected the food truck in the beverage garden to an electrical outlet that could have been located on the north side of the area.”

Alternatively, plaintiff argued that the defendant acted negligently by allowing a sponsor of the event to toss Frisbees “into the audience standing in a parking lot surrounded by numerous trip hazards (including the parking lot curb and the feet of other invitees) at dusk.”  However, the Court held that the argument was precluded because plaintiff failed to raise that argument before the trial court.  Regardless, the Court noted:

“Here, apart from the existence of the cords, appellants have alleged no hidden hazards that would have made the beverage garden more dangerous than it otherwise appeared. The activities occurring were obvious; [plaintiff] was aware that Frisbees were being thrown in a crowded parking lot at dusk.  And appellants have failed to produce evidence that respondent should reasonably have foreseen that these conditions, even if hazardous, might cause [plaintiff] injury.”

 

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