Defenses to Negligence, Pg. 106, 4.7
In the case of Peterson v. Donahue, Neal Peterson sued David Donahue for negligence after a ski collision that occurred while both parties were on the ski slopes. Eleven year old Peterson was coming down the slopes very fast when he collided with forty three year old, advanced skier, Donahue who was skating across the slope toward the parking lot. Donahue saw Peterson seconds before the impact which knocked him out of his skis ten to twelve feet down the slope and knocked Peterson unconscious. Peterson sought recovery for the accident by filing a suit in the Minnesota State Court against Donahue alleging negligence.
Because both parties were aware that falls, collisions, accidents and injuries could occur with skiing, Donahue is likely to use the assumption of risk defense in this claim. The assumption of risk defense claims that a plaintiff who voluntarily enters into a risky situation, knowing the risk involved, will not be allowed to recover. The requirements of this defense are: knowledge of the risk and voluntary assumption of the risk.
The court is likely to apply the assumption of risk defense based on the fact that both Peterson and Donahue were experienced skiers who both appreciated and knew the risk of the sport. Primary assumption of the risk is when parties have voluntarily entered a relationship in which plaintiff assumes well-known, incidental risks. The defendant has no duty to protect the plaintiff from the well-known, incidental risks and therefore is not negligent if any injury to the plaintiff occurs from an incidental risk. In this case, primary assumption of risk will rule out any claim of negligence because there is no evidence of increased risk on Donahue’s behalf.
Peterson’s argument is that Donahue increased the risk inherent with skiing because he did not look up the hill for oncoming skiers before crossing the slope. Based on Donahue’s testimony, he saw Peterson within...