• January 25, 2019

So held the Minnesota Supreme Court this week. And we think that most people would agree that “going to a bar” is not synonymous with “getting into a fist-fight.” Bars ≠ fighting arenas.

On the other hand, we all know what a “bar fight” is. In other words, although bars ≠ fighting arenas, fights in bars are common enough that this combination of words is common-place and maybe universally understood (compare: “barbershop fight,” “pet store fight,” or “fitness club fight”?). (So maybe bars ∈ fighting arenas?)

This second idea (which we can call “foreseeability”) also animated this week’s Supreme Court decision in the case of Maxwell Henson v. Uptown Drink.

The case involved drunken patrons who knocked a man, Mr. Maxwell Henson, down to the ground outside the bar. His head hit the curb and he died. There was some irony in the two defenses of the bar which we might paraphrase like this: (1) bar fights are so common that it is just a risk everyone takes that they might be injured or killed when they go to a bar (“implied primary assumption of risk”); and (2) Mr. Henson’s death was so unexpected and so unforeseeable that the bar cannot be held liable for this terrible but freak accident. (Here is an earlier post on “the enigma of foreseeability.”)

On the same day this week, the Minnesota Supreme Court also held that skiing is not so inherently and obviously dangerous that a skier cannot bring a lawsuit against someone whose negligence caused the skier injury while she was skiing (or snowboarding). There were similar issues of “implied primary assumption of risk” and foreseeability in the Soderberg case.

There were no dissents in these two extremely lucid decisions authored by Justice Lillehaug.

Some who criticize our tort system, who see it as a broken injury compensation system that only benefits the lawyers, will undoubtedly dislike these decisions, which allow tort claims to go forward that the trial courts (in both cases) threw out of court. We would submit, however, that the critics will nevertheless be hard-pressed to point to any flaws in the Supreme Court’s reasoning even if they dislike the outcomes.

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