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Bailly v. Thompson: US District Court : TORT - if no duty owed, need not consider plaintiff's alleged assumption of the risk

James and Sally Bailly,
Civ. No. 06-4925 (RHK/AJB)
Michael and Annette Thompson,1
Defendants and Third-Party Plaintiffs,
Michael and Heather Larson,
Third-Party Defendants.
Francis M. Doherty, Roger L. Imes, Craig R. Steger, Hale, Skemp, Hanson, Skemp &
Sleik, La Crosse, Wisconsin, for Plaintiffs.
Paul J. Wocken, Willenbring, Dahl, Wocken & Zimmermann, PLLC, Cold Spring,
Minnesota, for Defendants/Third-Party Plaintiffs.
Michael L. Lander, Michael L. Lander, P.A., Minneapolis, Minnesota, for Third-Party
The relevant facts in this case are not in dispute and, accordingly, are recited
without citation to the record. This case arises from a negligence action and it all
1 The parties stipulated to the dismissal of Defendant/Third-Party Plaintiff Michael Thompson.
(Doc. No. 37.)
started with a horse named Baby Doll. In 2004, Defendant Annette Thompson agreed to
allow Third-Party Defendants Michael and Heather Larson to board, train, and ride
horses on her property. In return, the Larsons agreed to help with the upkeep of the
fences and the barn. Thompson also allowed Plaintiffs James and Sally Bailly to board
and ride their horse on her property.
On June 11, 2005, Thompson purchased Baby Doll at an auction and the horse
was delivered to her home the following day. Because Thompson did not receive any
health records with the purchase of Baby Doll, she quarantined the horse in her barn until
a veterinarian could confirm that it was healthy enough to be around other horses. But
Baby Doll escaped from its stall and ran to the enclosed field near the barn. Sally Bailly,
who was on the property when Baby Doll escaped, secured her horse in its own stall so
that it could not come into contact with Baby Doll. She did not offer to help Thompson,
but observed that Baby Doll appeared to be nervous and resistant to Thompsons efforts
to put it back into its stall. Indeed, Thompson was unable to secure Baby Doll before
nightfall. But she closed the gate so that Baby Doll could not enter the pasture with the
other horses. She also placed water in a 30 gallon container in the pasture where the
other horses were located. Thompson then informed the Larsons and the Baillys that she
would resume her efforts in the morning.
The Larsons, however, were worried that Baby Doll would come into contact with
the other horses and possibly transmit a disease. As such, they decided to embark on
their own mission capture Baby Doll and return it to the barn. The Baillys offered to
help the Larsons. So in the pitch black of night armed with flash lights and a lasso
the Larsons and the Baillys entered Thompsons property and went in search of Baby
Doll. Thompson was unaware they had entered her property that evening.
Baby Doll proved to be a difficult foe each time the Larsons and the Baillys
encountered the skittish horse, it would run away. Eventually, Mike Larson was able to
get his lasso around Baby Doll, but he lost his grip on the rope and Baby Doll began
running away. Seconds later, Baby Doll knocked James Bailly over and he was seriously
The Baillys then brought this action, alleging negligence on the part of Thompson
for allowing Baby Doll to escape from the barn.2 Thompson denies liability and brought
a third-party action against Michael and Heather Larson, claiming that their negligence
caused the injuries alleged in the Baillys Complaint. (See Third-Party Complaint 6-
7.) Thompson has now moved for summary judgment. For the reasons set forth below,
the Court will grant her Motion.
Summary judgment is proper if, drawing all reasonable inferences in favor of the
nonmoving party, there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett,
2 The Baillys also alleged in their Complaint that Thompson violated Minnesotas running-atlarge
statute. See Minn. Stat. 346.16. (providing that it shall be unlawful for any owner or
any person having the control of [a horse] to permit the same to run at large in the state). The
Baillys, however, have abandoned this claim. (See Pl.s Oppn Mem. at 10.)
477 U.S. 317, 322-23 (1986). The moving party bears the burden of showing that the
material facts in the case are undisputed. Celotex, 477 U.S. at 322; Mems v. City of St.
Paul, Dept of Fire & Safety Servs., 224 F.3d 735, 738 (8th Cir. 2000). The Court must
view the evidence, and the inferences that may be reasonably drawn from it, in the light
most favorable to the nonmoving party. Graves v. Ark. Dept of Fin. & Admin., 229
F.3d 721, 723 (8th Cir. 2000); Calvit v. Minneapolis Pub. Schs., 122 F.3d 1112, 1116
(8th Cir. 1997). The nonmoving party may not rest on mere allegations or denials, but
must show through the presentation of admissible evidence that specific facts exist
creating a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986); Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).
Because this case is a diversity action, the Court must apply Minnesota substantive
law. Gylten v. Swalboski, 246 F.3d 1139, 1141 (8th Cir. 2001). In Minnesota, to
prevail on a claim for negligence, a plaintiff must prove the following: (1) that the
defendant has a legal duty to the plaintiff to take some action; (2) that there was a breach
of that duty; (3) that the breach of that duty was the proximate cause of the harm to the
plaintiff; and (4) damage. Id. (citing Gilbertson v. Leininger, 599 N.W.2d 127, 130
(Minn. 1999)).
In support of her Motion, Thompson argues that James Bailly primarily assumed
the risk of injury and therefore there is no liability here.3
The Minnesota Supreme Court has ruled that [b]efore a court considers
assumption of risk, it should first determine whether the defendant owed a duty to the
plaintiff because [i]f no duty exists there is no need to determine whether a person
assumed the risk thus relieving the defendant of the duty. Baber v. Dill, 531 N.W.2d
493, 495 (Minn. 1995); accord Louis v. Louis, 636 N.W.2d 314, 318 (Minn. 2001) (Any
legal analysis of an action brought against a landowner alleging negligence must begin
with an inquiry into whether the landowner owed the entrant a duty.). Thus, the
essential question in this case is: what legal duty, if any, did Thompson owe the Baillys?
If there is no duty, the Baillys negligence claim must fail.
Under Minnesota law, landowners owe entrants a duty of reasonable care. Louis,
636 N.W.2d at 318-19. But, this duty is not absolute because [a] [landowner] is not
liable to [entrants] for physical harm caused to them by any activity or condition on the
land whose danger is known or obvious to them, unless the [landowner] should anticipate
the harm despite such knowledge or obviousness. Baber, 531 N.W.2d at 495-96
(quoting Restatement (Second) of Torts 343A (1965)). Notably, the Minnesota
Supreme Court added the caveat that the landowner has no duty to an entrant where the
3 Thompson also argues that Minnesotas recreational-use-immunity statute precludes liability,
see Minn. Stat. 604A.20-23 (providing that an owner who directly or indirectly offers land for
recreational use without charge is not liable to any person who uses the property), and that the
doctrine of superseding cause insulates her from liability. For the reasons explained below, the
Court need not address these arguments because Thompson did not owe a duty of care to the
Baillys; consequently, the Baillys negligence claim fails as a matter of law.
anticipated harm involves dangers so obvious that no warning is necessary. Baber, 531
N.W.2d at 496 (emphasis added).
Thompson asserts that she did not owe James Bailly a duty of care . . . because he
knew that the horse was potentially dangerous to approach [and] [t]he risk of doing so as
open and obvious. (Def.s Reply Mem. at 4-5.) The Court agrees. [T]he word
known denotes not only knowledge of the existence of the condition or activity itself,
but also appreciation of the danger it involves. Louis, 636 N.W.2d at 321 (citation
omitted). A danger is obvious if a reasonable person exercising ordinary perception,
intelligence, and judgment would recognize the danger. Id. And the test for what
constitutes an obvious danger is an objective test: the question is not whether the
injured party actually saw the danger, but whether it was in fact visible. Id. (citation
Here, there is no dispute that James Bailly saw Baby Doll running around; he
knew that the horse was frightened and unpredictable such that it could cause injury to
those around it. (J. Bailly Dep. at 69, 198-99, 207.) Furthermore, the danger of trying to
capture a wild horse in the middle of the night (or during the day) should be obvious to
a reasonable person. Indeed, James Bailly testified that he had experience with horses
and was concerned that the skittish horse could injure someone. (Id. at 198-99.)
Accordingly, the Court concludes that the danger of attempting to capture a wild horse in
the middle of the night was known and obvious.
But the Court must also address whether the dangerous condition here was so
obvious as to preclude application of the unless clause of Section 343A. See Baber,
531 N.W.2d at 496. The Court determines that it was. As the Minnesota Supreme Court
acknowledged in Baber, [t]he difference between open and obvious dangerous activities
and conditions for which the possessor should anticipate harm and those activities and
conditions for which the possessor should not anticipate harm because they are so open
and obvious is a fine one, but one that we choose to make. Id. The record in this case
conclusively establishes that the danger involved here attempting to capture a wild
horse in the middle of the night is such an obvious danger that no warning is necessary.
Indeed, no one needs notice of what he knows or reasonably may be expected to
know. Id. at 496 (quoting Sowles v. Urschel Lab., Inc., 595 F.2d 1361, 1365 (8th Cir.
1979)); see also Peterson v. W.T. Rawleigh Co., 144 N.W.2d 555, 558 (Minn. 1966)
(recognizing that certain situations are so obviously dangerous that the landowner has no
duty to warn of them).
Even if the Court were to apply Section 343As unless clause, there is no
evidence that Thompson should have anticipated that the Baillys would attempt to
capture a wild horse in the middle of the night. The record shows that the other horses
were segregated from Baby Doll and had plenty of water. Thompson advised the Baillys
of the situation; in fact, they knew that Baby Doll was skittish and unpredictable. The
Minnesota Supreme Court has explained that [a] reason to anticipate the harm may arise
when the landowner has reason to expect that the invitee will proceed to encounter the
known or obvious danger because to a reasonable man in his position the advantages of
doing so would outweigh the apparent risk. Sutherland v. Barton, 570 N.W.2d 1, 7
(Minn. 1997) (citation omitted). In the Courts view, this was not a situation in which a
reasonable jury could conclude that the advantages of encountering the danger
outweighed the apparent risk. Notably, the Baillys testified that they were not concerned
that Baby Doll would come into contact with their horse. (S. Bailly Dep. at 134; J. Bailly
Dep. at 103, 106.) And even if they were concerned, they had alternatives they could
have moved their horse to their own property where they had their own facilities for
housing horses or they could have waited until morning, when it would have been easier
to see to assist Thompson in her efforts to return Baby Doll to the barn. (Id. at 21, 101-
02.) Thompson simply had no reason to anticipate that the Baillys would proceed to
encounter the obvious danger; accordingly, Thompson had no duty to protect the Baillys
from this common-sense danger.
Because the Court has determined that Thompson owed James Bailly no duty of
care, it need not determine whether he assumed the risk of injury when he attempted to
capture a wild horse in the middle of the night. Baber, 531 N.W.2d at 495 (stating that
[i]f no duty exists there is no need to determine whether a person assumed the risk).4
Therefore, the Court finds that the Baillys negligence claim fails as a matter of law.
4 Were the Court to consider the issue, it would determine that James Bailly assumed the risk of
injury when he attempted to capture Baby Doll. Minnesota law recognizes two types of
assumption of risk: primary assumption of risk and secondary assumption of risk. Swagger v.
City of Crystal, 379 N.W.2d 183, 184 (Minn. Ct. App. 1985). Primary assumption of risk bars
recovery in a negligence action if the plaintiff: (1) has knowledge of the risk, (2) appreciates the
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED that Thompsons Motion for Summary Judgment (Doc. No.18) is
GRANTED; her Third-Party Complaint (Doc. No. 4) is MOOT; and the Baillys
Complaint (Doc. No. 1) is DISMISSED WITH PREJUDICE.
Date: May 27, 2008
s/ Richard H. Kyle
United States District Judge
risk, and (3) has a choice to avoid the risk but voluntarily chooses to accept the risk. Reimer v.
City of Crookston, 326 F.3d 957, 966 (8th Cir. 2003) (applying Minnesota law). By contrast,
secondary assumption of risk is a form of contributory negligence. Swagger, 379 N.W.2d at 184.
At issue here is primary assumption of risk. This doctrine generally applies to cases that
involve inherently risky activities. Kraft v. Ingersoll-Rand Co., Inc., 136 F.3d 584, 586 (8th
Cir. 1998) (applying Minnesota law). The Court is of the view that attempting to capture a wild
horse is an inherently risky activity. There is no dispute that James Bailly knew, appreciated,
and voluntarily assumed the risk of injury when he volunteered to help the Larsons capture a
wild horse in the middle of the night. Consequently, the Baillys negligence claim must fail.


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