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Brunsting v. Lutsen Mountains Corp.: US District Court : TORT - insufficent evidence to allow reasonable finding that stump caused ski accident

Keith Brunsting and Cheri Brunsting,
v. Civ. No. 07-4192 (RHK/RLE)
Lutsen Mountains Corp. and
Lutsen Mountains Lodging Corp.,
Thomas J. Conlin, Conlin Law Firm, LLC, Minneapolis, Minnesota, Ronald A.
Parsons, Jr., Shannon Falon, Steven M. Johnson, Johnson, Heidepriem, Janklow,
Abdallah & Johnson, LLP, Sioux Falls, South Dakota, for Plaintiffs.
Brian N. Johnson, Cortney G. Sylvester, Gregory A. Bromen, Cynthia P. Arends,
Halleland Lewis Nilan & Johnson PA, Minneapolis, Minnesota, for Defendants.
Plaintiffs Keith and Cheri Brunsting brought this action against Defendants
Lutsen Mountains Corp. and Lutsen Mountains Lodging Corp.,1 alleging that
Lutsen was negligent in the design, maintenance, operation, and supervision of
its ski facilities by allowing a tree stump to exist unmarked on an open ski run.
Brunsting contends that he was severely injured as a result of hitting the unseen
stump, which caused him to collide with a tree in close proximity. Lutsen now
1 Hereinafter referred to jointly as Lutsen.
moves for summary judgment. For the reasons set forth below, the Court will
grant the Motion.
On February 26, 2004, Keith Brunsting and his friend Tracey Benson were
skiing at Lutsens ski resort. (Benson Aff. 2.) At the time, Brunsting considered
himself to be an intermediate skier, skiing approximately three times a year. (Pl.
Interrogs. at 3-4.)
Around 2:15 that afternoon, Brunsting and Benson were skiing a run
commonly referred to as Alpha.2 (Benson Dep. Tr. at 62.) Soon thereafter,
Brunsting collided with a tree located near the boundary of Lutsens Alpha and
Timberwolf runs.3 (Id. at 73-74.) Brunsting sustained severe brain damage as a
result of this accident and has no memory of what occurred. (Pl. Interrogs. at 2-3.)
Benson did not witness the incident. (Benson Dep. Tr. at 75.) However, Sherry
Christiansen and Henry Walch, Lutsen employees riding a chairlift located near
the accident site, witnessed Brunstings accident. (Christiansen Dep. Tr. at 35-36;
Walch Dep. Tr. at 33-35.) While both Christiansen and Walch saw Brunsting
collide with the tree, neither witness saw Brunsting hit the stump. (Christiansen
Dep. Tr. at 35-36, 74; Walch Dep. Tr. at 33-35, 132.)
2 Alpha is a groomed run. (Rider Dep. Tr. at 24.) A groomed run has a smooth surface
with no natural obstacles. (Id. at 44-45.)
3 Timberwolf is designed as an ungroomed run. (Rider Dep. Tr. at 24.) Ungroomed runs
retain natural features such as trees and stumps. (Id. at 44.) Alpha is adjacent to
Timberwolf on the top third of the mountain. (Vick Dep. Tr. at 18.)
The parties do not dispute the existence of a tree stump in the vicinity of the
incident site. However, the parties do dispute the role the stump played in
Brunstings accident. Brunsting contends that the accident was the result of him
hitting the stump, which caused him to lose control and collide with the tree.
(Mem. in Oppn at 1.) Lutsen disagrees with this assertion, maintaining that
Brunsting did not hit the stump. (Def. Mem. at 9.)
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, 477 U.S. 317, 322-23 (1986). The moving party bears
the burden of showing that the material facts in the case are undisputed. Id. at
322; Mems v. City of St. Paul, Dep=t 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. Dep=t 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).
Lutsen argues that summary judgment is appropriate because Brunsting
cannot prove that any act or omission by Lutsen caused [his] injuries. (Def.
Mem. at 15.) Because this is a diversity action, the Court must apply Minnesota
substantive law to resolve this issue. 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)).
It is incumbent on plaintiff to introduce evidence which would afford a
reasonable basis for the conclusion that it was more likely than not that the
alleged breach caused the injury in question. DeCourcy v. Trustees of
Westminster Presbyterian Church, Inc., 134 N.W.2d 326, 328 (Minn. 1965)
(citations omitted). A mere possibility of such causation is not enough as
causation must be established beyond the point of speculation. Id. Summary
judgment is appropriate when the record reflects a complete lack of proof
demonstrating causation. Schafer v. JLC Food Sys., Inc., 695 N.W.2d 570, 573
(Minn. 2005).
Here, Lutsen argues that there is no evidence connecting the accident to the
stump. (Def. Mem. at 14-16.) To support this argument, Lutsen points to the only
eyewitnesses to the accident who testified that Brunsting did not hit the stump.
(Christiansen Dep. Tr. at 74, 120-21, 130-33; Walch Dep. Tr. at 132, 140-41.) In
addition, Lutsens expert in biomechanical engineering has opined that, based on
his analysis, it is unlikely that Brunsting hit the stump prior to his collision with
the tree. (Johnson Aff. Ex. J at 8-11.)
Brunsting relies upon two categories of evidence to rebut Lutsens
contentions. First, Brunsting argues that the circumstantial evidence present in the
record suggests that he hit the stump prior to the accident. Second, Brunsting
argues that admissible hearsay statements also indicate that he hit the stump.4
A. Circumstantial evidence
The circumstantial evidence proffered by Brunsting is weak at best. First,
Brunsting notes that he was an intermediate skier who was cautious, rarely fell,
and had not fallen at all on the day in question prior to the incident. (Mem. in
Oppn at 10.) In addition, Brunsting states that on the day of the accident, there
was nothing unusual about the run and he was skiing safely. (Id.) Therefore,
Brunsting argues that because the stump was the only obstacle in the vicinity of
4 Brunsting submitted to the Court the report of Richard Penniman, an alleged expert in
ski-resort safety, opining in part that the stump caused Brunsting to collide with the tree.
(Penniman Prelim. Statement of Ops., attached to Penniman Affidavit.) In his brief,
however, Brunsting does not cite the Penniman report as evidence supporting his
causation theory. Therefore, the Court need not consider it. Nevertheless, the Court
questions the admissibility of Pennimans opinion regarding the stump under Daubert v.
Merrell Dow Pharmaceuticals, Inc., because it appears to be unsupported speculation
and therefore has no evidentiary relevance and reliability. 509 U.S. 579, 590, 595
the accident, it must have caused the accident.5 (Id. at 10-11.) The Court finds
this evidence to be of little value because it does not rule out any number of other
potential causes of Brunstings accident, including the distinct possibility that he
simply lost control while skiing down the slope.
The second piece of circumstantial evidence offered by Brunsting is equally
dubious. Brunsting notes that Benson, soon after the accident occurred, inspected
the subject stump and noticed a ski carve mark over the edge of the stump.
(Mem. in Oppn at 11.) A ski carve mark is a slight, flat, grooved impression
left in the snow by a ski. (Benson Dep. Tr. at 83.) However, Benson himself
admits that he has no way of knowing when the mark was made and by whom.
(Id. at 79.) Indeed, by 2:30 in the afternoon, any number of skiers could have
made the carve mark and Brunsting has offered no evidence indicating that he was
the skier who created it.
B. Hearsay statements
In addition to the above-referenced circumstantial evidence, Brunsting
relies upon three hearsay statements to demonstrate that he hit the stump prior to
the accident. (Mem. in Oppn at 5.) First, Brunsting claims that both Christiansen
and Walch told Benson that Brunsting hit or was near the stump prior to his
5 To bolster the argument that circumstantial evidence demonstrates that Brunsting must
have hit the stump, Brunsting contends that both eyewitnesses testified that it appeared
that he hit something prior to loosing [sic] control. (Mem. in Oppn at 10 (citing Walch
Dep. Tr. at 58; Christiansen Dep. Tr. at 95, 98-101).) Nevertheless, both eyewitnesses
have testified that Brunsting did not hit the stump. (Christiansen Dep. Tr. at 74, 120-21,
130-33; Walch Dep. Tr. at 132, 140-41.) Therefore, this cited testimony does not support
Brunstings causation theory.
accident. (Id.) Second, Brunsting notes that Lutsen employee Eric Warnecke said
he was informed that plaintiff stumbled on a stump and hit a tree. (Id. (citing
Warnecke Dep. Tr. at 18).)
Lutsen is correct that hearsay evidence cannot be used to defeat summary
judgment. Brooks v. Tri-Systems, Inc., 425 F.3d 1109, 1111 (8th Cir. 2005).
However, Brunsting argues that Christiansens statement is admissible as an
excited utterance.6 (Mem. in Oppn at 7-9.) Brunsting does not argue that the
other two hearsay statements are admissible under any exception to the hearsay
rule. Therefore, the Court will not consider them.
The Federal Rules of Evidence define an excited utterance as [a] statement
relating to a startling event or condition made while the declarant was under the
stress of excitement caused by the event or condition. Fed. R. Evid. 803(2). To
determine whether a statement is an excited utterance, courts consider the lapse
of time between the startling event and the statement, whether the statement was
made in response to an inquiry, the age of the declarant, the physical and mental
condition of the declarant, the characteristics of the event, and the subject matter
of the statement. United States v. Wilcox, 487 F.3d 1163, 1170 (8th Cir. 2007)
(internal quotations and citation omitted). An excited utterance is considered to be
reliable, and thus an exception to the hearsay rule, because it is a spontaneous
statement that [is] not the product of reflection or deliberation. United States v.
6 Benson contends that Christiansen told him that she saw Keith stumble on a stump,
then fall into a tree, hitting the tree with his head. (Benson Aff. 4.)
Water, 413 F.3d 812, 818 (8th Cir. 2005). The burden of producing evidence
demonstrating that a statement is an excited utterance is on the proponent. Reed v.
Thalacker, 198 F.3d 1058, 1061 (8th Cir. 1999).
Based upon the record before the Court, Christiansens statement is not an
excited utterance. Assuming for the purposes of summary judgment that
Christiansen was the declarant of this statement,7 there is insufficient evidence to
indicate that she was in such an excited state to make her statement an excited
utterance. Christiansen witnessed Brunstings accident from the chairlift and
thereafter skied to the accident site, where she encountered Benson. (Benson Aff.
3-4.) The alleged statement was made four to five minutes after the accident
took place, and was made in response to Bensons inquiry. (Id. 4.) Accordingly,
the statement was not spontaneous, excited or impulsive. Reed, 198 F.3d at
1061. Moreover, while Benson states that he, Christiansen, and Walch were all
extremely startled and alarmed at the gravity of the situation and extremely . . .
anxious (Benson Aff. 4.), Brunsting provides no evidence that Christiansen in
particular was in an extremely alarmed condition at the time the statement was
made beyond these generalized observations regarding the groups demeanor.8
7 The identity of the declarant is uncertain. During his deposition, Benson stated that a
Caucasian woman told him that she saw Brunsting hit the stump. (Benson Dep. Tr. at 78-
80.) Benson later stated in an affidavit that he believes the Caucasian woman to be
Christiansen, but that he is not certain. (Benson Aff. 4-5.) Christiansen, however,
denies making this statement. (Christiansen Dep. Tr. at 44-46.)
8 Brunsting contends that because Christiansen felt panicked and anxious when she
later skied down the hill from the accident scene, she must have been in an excited state
when she told Benson that Brunsting hit the stump. (Mem. in Oppn at 8.) However,
For example, there is no evidence that Christiansen was crying, shaking,
screaming, or otherwise acting as if she was in such a state as to be unable to
falsify. See Wilcox, 487 F.3d at 1171 (noting that a declarant was in an excited
state when she was crying with an upset tone of voice); United States v. Phelps,
168 F.3d 1048, 1055 (8th Cir. 1999) (noting that a declarant was in an excited
state when she was shaking and crying). Additionally, the nature of the incident
also indicates that Christiansen was not likely to be in an excited state. While she
had witnessed a serious and life-threatening ski accident, Christiansen and
Brunsting were perfect strangers, and thus Christiansen had no connection to
Brunsting which may lead to a strong emotional response to his unfortunate
Disregarding the Christiansen statement as inadmissible hearsay, the Court
finds that there is insufficient evidence in the record to establish causation.9 While
the Court is mindful that issues of causation often involve questions of fact, see Ill.
Farmers Ins. Co. v. Tapemark Co., 273 N.W.2d 630, 633-34 (Minn. 1978); Moe v.
Springfield Milling Corp., 394 N.W.2d 582, 585 (Minn. Ct. App. 1986), summary
judgment is appropriate where the nonmoving party has failed to point to
sufficient evidence that would allow the jury to reasonably find for the nonmoving
party, see DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997). In this case,
Christiansens fear for her own safety when skiing down the hill does not indicate that
her prior statement was made in an excited state without reflection or deliberation.
9 As the Court grants Lutsens Motion for Summary Judgment for lack of evidence
demonstrating causation, it need not address Lutsens alternative theory of primary
assumption of the risk.
Brunsting has failed to point to enough relevant and admissible evidence that
would allow a trier of fact to reasonably conclude that the stump was the cause of
Brunstings accident. A ski carve mark on the stump from unknown origins falls
far short of the evidence needed for a jury to reasonably conclude that the stump
caused the accident in light of the substantial evidence to the contrary.
Accordingly, Brunsting cannot prove an essential element of his negligence claim,
and summary judgment in favor of Lutsen is appropriate.10
Based on the foregoing, and all the files, records and proceedings herein IT
IS ORDERED that Defendants Motion for Summary Judgment (Doc. No. 67) is
GRANTED and Plaintiffs Complaint (Attached as Ex. 2, Doc. No. 42) is
Dated: December 30, 2008
s/Richard H. Kyle
United States District Judge
10 In Minnesota, the claim of loss of consortium is considered to be derivative. See
Huffer v. Kozitza, 375 N.W.2d 480, 482 (Minn. 1985). Here, this means that Cheri
Brunstings right to recover for loss of consortium derives from Keith Brunsting's right to
recover on his negligence claim. As the negligence claim in this case does not survive
summary judgment, the claim for loss of consortium also cannot survive.


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