Late 2009 was a busy time for ski resort, Lutsen Mountain at the U.S. Court of Appeals for the Eighth Circuit, since it won affirmance of an award of summary judgment on an injury waiver case (“Myers”) and around the same time had oral argument on in the Brunsting case, decided this week (in which, this time, Lutsen had summary judgment in its favor reversed). (Do we infer that Mr. Brunsting signed no waiver? The claim of Myers, 32 years-old and apparently having suffered a brain injury was barred by a signed waiver.)
(By the way, how dangerous is skiing relative to other recreational activities? Hard to say. There are many more injuries and fatalities for swimmers, bike-riders and skate-boarders but, on the other hand, there are, of course, many more swimmers, bikers, and skate-boarders than skiers.)
As covered previously on Minnesota Litigator, the issue on appeal in the Brunsting case was whether a statement made by a witness at the scene was inadmissible hearsay or whether it fell within the exception to the hearsay bar for “excited utterances.”
The U.S. Court of Appeals reversed U.S. District Court Judge Richard Kyle, Sr. (D. Minn.), finding that District Court abused its discretion in excluding this evidence as inadmissible hearsay. Judge Bobby Shephard concurred in the reversal of the grant of summary judgment but dissented on the precise issue of whether the District Court abused its discretion in excluding the evidence of the contemporaneous statement.
The bottom line for Lutsen is that it appears it will face a trial against a skier with a devastating brain injury (48 years old, permanently disabled) or it will settle the case.