Jeanne Anderson v. Rugged Races, LLC; Dennis Raedeke, Inc., doing business as Wild Mountain Recreation Area

United States Court of Appeals
For the Eighth Circuit
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No. 20-3436
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Jeanne Anderson
lllllllllllllllllllllPlaintiff - Appellant
v.
Rugged Races, LLC; Dennis Raedeke, Inc., doing
business as Wild Mountain Recreation Area
lllllllllllllllllllllDefendants - Appellees
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Appeal from United States District Court
for the District of Minnesota
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Submitted: February 16, 2022
Filed: August 2, 2022
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Before LOKEN, COLLOTON, and SHEPHERD, Circuit Judges.
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LOKEN, Circuit Judge.
In September 2016, Jeanne Anderson shattered her heel bone participating in
the Rugged Maniac Twin Cities 5k obstacle race at the Wild Mountain Recreation
Area (“Wild Mountain”). In 2018, Anderson sued Rugged Races LLC (“Rugged
Races”), the race promoter, and Dennis Raedeke, Inc., the owner of Wild Mountain,
alleging that defendants were “grossly negligent” in failing to perform their duties to

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protect race participants from unreasonable risks of harm. She appeals the district
court’s1 grant of summary judgment in favor of both defendants. The diversity action
is governed by Minnesota state law. Reviewing the grant of summary judgment de
novo, we affirm. See Kraft v. Ingersoll-Rand Co., 136 F.3d 584, 585-86 (8th Cir.
1998) (standard of review).
I. Background
Since 2010, Rugged Races has planned hundreds of obstacle races around the
country, including Rugged Maniac Twin Cities. The events feature an obstacle
course with a series of challenges involving barbed wire, fire, water, and mud,
followed by a post-race party. When Anderson registered for the 2016 Twin Cities
event, she signed a Race Participant Agreement (the Agreement). In Part III of the
Agreement, titled Assumption of Inherent Risks, Anderson acknowledged:
I understand fully the inherent risks involved in the Event and assert that
I am willingly and voluntarily participating in the Event. . . . (1) I
understand the nature of the Event; (2) I understand the physical and
mental demands that this activity will place upon me; and (3) I
understand that I may be injured by participating in the Event. I hereby
assert that I knowingly assume all of the inherent risks of the activity
and take full responsibility for any and all damages, liabilities, losses or
expenses that I incur as a result of participating in the Event.
In Part IV, titled Waiver of Liability for Ordinary Negligence, Anderson waived
and discharged both Rugged Races and Wild Mountain “from any and all claims
resulting from the INHERENT RISKS of the Event or the ORDINARY
NEGLIGENCE of Rugged Races LLC (or other Released Parties).” Anderson again
signed the Agreement when she checked in on race day.
1The Honorable Patrick J. Schiltz, now Chief Judge of the United States
District Court for the District of Minnesota
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After starting the race and completing the first seven obstacles, Anderson
reached the “Bang the Gong” challenge. This obstacle required her to jump from a
raised platform, attempt to slap a gong in midair, and land in a pit of muddy water.
When Anderson landed in the pit her “left foot hit something hard.” She crawled
from the pit, received medical attention, and learned she had shattered the calcaneus
bone in her left heel. Of the more than 4000 participants in the 2016 race, four others
were injured on the Bang the Gong obstacle, suffering injuries to their foot or ankle
after landing in the pit.
Anderson’s Complaint alleged (i) that defendants had duties to design and
construct a reasonably safe course, maintain the course in a safe condition, inspect the
course for unreasonable risks of harm, warn race participants of unreasonable risks,
supervise parties responsible for performing those duties, and operate and maintain
the course to ensure participants were not exposed to unreasonable risks; and (ii) that
defendants were grossly negligent in failing to perform each of these duties. After
discovery, defendants moved for summary judgment. The summary judgment record
includes deposition testimony from Anderson and Rugged Races employees,
declarations from the other injured participants, reports by Anderson’s expert
witnesses, and other documentary evidence.
The district court granted summary judgment in favor of both defendants.
Anderson v. Rugged Races LLC, 496 F. Supp. 3d 1270 (D. Minn. 2020). The court
concluded that the exculpatory clause in the Agreement barred any claims for
ordinary negligence and that Anderson had failed to show “greater-than-ordinary
negligence.” On appeal, Anderson argues (i) the exculpatory clause is unenforceable;
(ii) if enforceable, it does not waive claims based on defendants’ alleged greater-than-
ordinary negligence; and (iii) the summary judgment record includes evidence from
which a reasonable jury could find greater-than-ordinary negligence. Defendants
argue the district court properly granted summary judgment because there is
insufficient evidence of greater-than-ordinary negligence. They further argue that
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Minnesota law does not recognize any claim other than the claims for ordinary
negligence that Anderson waived in the Agreement.2
We will affirm the grant of summary judgment when the evidence viewed in
the light most favorable to the nonmoving party presents “no genuine issue of
material fact” from which “a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (emphasis
omitted); see Fed. R. Civ. P. 56(a). “A mere scintilla of evidence is insufficient to
defeat summary judgment and if a nonmoving party who has the burden of persuasion
at trial does not present sufficient evidence as to any element of the cause of action,
then summary judgment is appropriate.” Brunsting v. Lutsen Mountains Corp., 601
F.3d 813, 820 (8th Cir. 2010) (quotations and citations omitted).
II. Analysis
On appeal, Anderson argues that her waiver of ordinary negligence claims in
the Agreement is not enforceable and, alternatively, that it does not waive claims
based on greater-than-ordinary negligence. Defendants counter that the exculpatory
clause is valid and enforceable and bars all of Anderson’s claims. There is a
considerable body of relevant Minnesota case law on these issues.
A. Under Minnesota law, there is no common law action for “gross
negligence.” See Peet v. Roth Hotel Co., 253 N.W. 546, 548 (Minn. 1934).
However, the negligence standard governing particular claims may be varied by
statute or by contract. See, e.g., State v. Bolsinger, 21 N.W.2d 480 (Minn. 1946)
(criminal negligence statute), overruled on other grounds, State v. Engle, 743 N.W.2d
2Defendants also argue (i) Anderson waived any claim based on greater-than-
ordinary negligence by alleging only gross negligence in her Complaint; and (ii)
Anderson’s claims are barred by the Minnesota doctrine of primary assumption of the
risk. Given our resolution of Anderson’s appeal, we need not consider these issues.
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592 (Minn. 2008). Under Minnesota law, as in most States, “ordinary negligence”
is the “failure to exercise such care as persons of ordinary prudence usually exercise
under such circumstances.” Domagala v. Rolland, 805 N.W.2d 14, 22 (Minn. 2011)
(quotation omitted). Gross negligence is “substantially and appreciably higher in
magnitude than ordinary negligence . . . [and is] the absence of slight diligence, or the
want of even scant care.” Bolsinger, 21 N.W.2d at 485.
In the Race Participant Agreement, Anderson waived all claims resulting from
“the INHERENT RISKS of the Event or the ORDINARY NEGLIGENCE” of the
defendants. Minnesota Courts call provisions of this type exculpatory clauses. In
Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920 (Minn. 1982), the Supreme Court of
Minnesota dismissed a fitness spa member’s negligence action, based on the
exculpatory clause in her membership agreement. The Court noted that prior cases
had upheld exculpatory clauses in construction contracts and commercial leases:
Even though we have recognized the validity of exculpatory clauses in
certain circumstances, they are not favored in the law. A clause
exonerating a party from liability will be strictly construed against the
benefited party. If the clause is either ambiguous in scope or purports
to release the benefited party from liability for intentional, willful or
wanton acts, it will not be enforced.
Id. at 923 (emphasis added, citation omitted). Reversing the denial of summary
judgment, the Court held:
that the exculpatory clause in Spa Petite’s membership contract was
unambiguous and limited to exoneration from negligence; that there was
not disparity of bargaining power; and that the clause was not void as
against public policy.
Id. at 926.
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In Beehner v. Cragun Corp., 636 N.W.2d 821 (Minn. Ct. App. 2001), the
Minnesota Court of Appeals considered a riding stable’s exculpatory clause. Unlike
the exculpatory clause in Schlobohm, which applied to “all acts of active or passive
negligence,” 326 N.W.2d at 922, the clause in Beehner was limited to claims of
“ordinary negligence” and expressly excluded claims based on “gross negligence and
willful and wanton misconduct.” 636 N.W.2d at 825. Reversing the grant of
summary judgment in favor of the riding stable, the Court held:
In a dispute over the applicability of an exculpatory clause, summary
judgment is appropriate only when it is uncontested that the party
benefited by the exculpatory clause has committed no greater-than-
ordinary negligence. Thus, summary judgment is appropriate here only
if Outback’s conduct does not, as a matter of law, rise to the level of
gross negligence or wanton and willful misconduct.
Id. at 829 (emphasis added and citation omitted).
The district court treated Beehner as controlling Minnesota authority and
applied the greater-than-ordinary negligence standard. Defendants argue Minnesota
law does not recognize any claim other than the claims for ordinary negligence. We
need not resolve that question in this case because, in granting summary judgment in
favor of defendants, the district court adopted the view of this issue that is most
favorable to Anderson, the non-moving party. Because we agree with the court that
Anderson presented insufficient evidence of greater-than-ordinary negligence, we
assume without deciding that this standard is consistent with controlling Minnesota
law.
In addition to arguing that greater-than-ordinary negligence is the correct
standard, Anderson argues that the exculpatory clause at issue is unenforceable
because it is ambiguous in scope: Minnesota law imposes on defendants as the
landowner and operator of a for-profit recreational activity a duty to exercise a “high
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degree of care” to ensure that invitees are not exposed to unreasonable risks of harm.
Hanson v. Christensen, 145 N.W.2d 868, 873-74 (Minn. 1966); see Olmanson v.
LeSueur Cty., 693 N.W.2d 876, 881 (Minn. 2005); Isler v. Burman, 232 N.W.2d 818,
821 (Minn. 1975). This argument is without merit. First, the “ordinary negligence”
clause in the Agreement is less, or at least no more ambiguous than the exculpatory
clause held to be unambiguous in Schlobohm, 326 N.W.2d at 922-23 (the term “all
acts of active or passive negligence . . . specifically purports to exonerate Spa Petite
from liability for acts of negligence and negligence only”), and Beehner, 636 N.W.2d
at 827. Second, when the duty to exercise this high degree of care applies, it is an
ordinary negligence duty to exercise “reasonable care, meaning care commensurate
with the risks involved.” Hanson, 145 N.W.2d at 873. Thus, that the waiver of
claims for “ordinary negligence” includes this type of duty for landowners and for-
profit operators does not make the waiver ambiguous. We agree with the district
court that the Agreement’s exculpatory clause is unambiguously limited to ordinary
negligence. As in Beehner, Anderson was a voluntary participant in a recreational
activity that does not “implicate[] a public or essential service.” 636 N.W.2d at 828.
B. Anderson claims defendants exhibited greater-than-ordinary negligence in
the design, construction, supervision, and maintenance of the Bang the Gong
obstacle. The district court properly rejected these claims.
On appeal Anderson first argues there was greater-than-ordinary negligence in
the design of the Bang the Gong challenge based on expert testimony supporting her
claim that a deeper level of water in the landing pit could have prevented her injury.
However, Bang the Gong was not a new obstacle for the 2016 Rugged Maniac race.
Rather it was tested, used in multiple previous events, and modeled on an earlier
obstacle that was safely used for years. We agree with the district court that “[t]he
fact that thousands of participants -- many of whom undoubtedly outweighed
Anderson -- jumped into the landing pit without incident is compelling evidence that
the water level was not unreasonably low.” Anderson, 496 F. Supp. 3d at 1285.
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Anderson also argues the summary judgment record supports her claim of
greater-than-ordinary negligence in the construction process for the 2016 event. Like
the district court, we disagree. Rugged Races followed a detailed protocol when
constructing Bang the Gong for this and other events, described in deposition
testimony by Rugged Races’ Senior Vice President, Bradford Scudder, and a
construction crew member from the 2016 race, Christian Melnik. The process
involved digging a pit, removing debris, lining the pit with a tarp, filling it with water,
and then constructing the platform participants would use to jump into the pit. The
protocol requires crew members to inspect the pit three separate times before it is
filled to ensure no rocks, roots, or other debris are present. They conduct two
subsequent visual inspections after the pit is filled, including on the morning of the
race. Although there was no supporting documentation, Melnik testified that he was
not aware that the construction crew ever deviated from this protocol before, during,
or after the 2016 race. Anderson, 496 F. Supp. 3d at 1274. The district court
properly concluded that such evidence would be admissible as evidence of Rugged
Races’ routine. See Fed. R. Evid. 406 (court may admit evidence of routine practice
“regardless of whether it is corroborated or whether there was an eyewitness”).
Anderson concedes the admissibility of the Rule 406 evidence, but argues such
“self-serving assertion[s]” are not dispositive. True enough. But this testimony by
persons familiar with and involved in the process was strong evidence that Rugged
Races complied with its established routine of carefully constructing and inspecting
the obstacle before the race. Anderson’s disputed evidence of a submerged rock3 was
insufficient to create a material issue of fact that would meet her burden to prove that
defendants were liable for greater-than-ordinary negligence. Anderson, 496 F. Supp.
3Though there was no physical evidence of a submerged rock in the landing pit,
Anderson and the other injured participants described “feeling a rock or similar
object” when they landed. In ruling on defendants’ motion for summary judgment,
the district court properly concluded it “therefore must assume that a rock was present
in the landing pit of Bang the Gong.” Anderson, 496 F. Supp. 3d at 1278 n.7.
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3d at 1280. We agree with the district court that Anderson offered “little more than
speculation” supporting her contentions that the rock was present before the pit was
filled and would have been discovered had the construction crew not acted with
greater-than-ordinary negligence. Id. at 1284. To avoid summary judgment, the
nonmoving party must provide “sufficient probative evidence” based on “more than
mere speculation [or] conjecture.” Ball v. City of Lincoln, 870 F.3d 722, 727 (8th
Cir. 2017) (quotation omitted).
We further agree with the district court that Anderson submitted insufficient
evidence to establish that defendants acted with greater-than-ordinary negligence
during or after the race. The district court estimated that Anderson was injured at
approximately 1:00 pm.4 The court carefully reviewed when defendants would have
learned that four other participants reported similar injuries before concluding that
the record did not support Anderson’s contention that Rugged Races knew or should
have known of a rock in the landing pit in time to take preventive action. 496 F.
Supp. 3d at 1278-80. Anderson argues prior notice is irrelevant because Rugged
Races created the danger. Rugged Races constructed the obstacle, but there is no
evidence that Rugged Races placed a dangerous rock in the pit, only circumstantial
evidence that it failed to discover a hidden danger. Under Minnesota law, landowners
are not “insurers of safety of their patrons.” Hanson, 145 N.W.2d at 873. “Unless the
dangerous condition actually resulted from the direct actions of a landowner or his
or her employees, a negligence theory of recovery is appropriate only where the
landowner had actual or constructive knowledge of the dangerous condition.” Rinn
v. Minn. State Agric. Soc’y, 611 N.W.2d 361, 365 (Minn. Ct. App. 2000).
4The district court estimated 1:00pm “based on the fact that Anderson did not
report her injury until 1:15 pm, after she had hurt her foot, crawled out of the pit,
reported her need for medical attention, waited for a medic to arrive, and been
transported to the medical tent.” Anderson, 496 F. Supp. 3d at 1275 n.4.
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Here, the first two injuries were similar to Anderson’s and occurred earlier, but
neither injury report mentioned a rock in the pit, only that the injured participant
“landed wrong” or “jumped into . . . uneven terrain.” The other three injuries,
including Anderson’s, occurred between 1:00-1:30pm. The injury reports reported
there was a rock in the pit, but Rugged Races was not made aware of these reports in
time to put it on notice that preventive action might be needed. See Otis v. First Nat’l
Bank of Minneapolis, 195 N.W.2d 432, 433 (Minn. 1972) (no actual or constructive
notice when hazard only present for 20 minutes). Because “an act or omission is not
negligent unless the actor had knowledge or notice that it involves danger to another,”
Rugged Races’ failure to remove the rock from the landing pit before Anderson’s
injury is not a sufficient showing of greater-than-ordinary negligence. Rue v.
Wendland, 33 N.W.2d 593, 595 (Minn. 1948). And given the nature of the obstacle
and the evidence of Rugged Races’ careful inspection procedures when creating the
obstacle, the record does not provide sufficient evidence that any uneven terrain in
the landing pit was the product of greater-than-ordinary negligence.
Finally, Anderson argues that Rugged Races failed to maintain the water level
in the Bang the Gong pit to the depth required by its protocol, a further example of
greater-than-ordinary negligence. The district court declined to consider this issue
because Anderson first raised it at the summary judgment hearing. 496 F. Supp. 3d
at 1285 n.11. As Anderson “did not sufficiently present [the] argument” to the
district court, we will not consider it on appeal. Cole v. Int’l Union, United Auto.,
Aerospace & Agric. Implement Workers of Am., 533 F.3d 932, 936 (8th Cir. 2008).
III. Conclusion
In summary, our careful review of the record confirms the district court did not
err in concluding Anderson failed to establish greater-than-ordinary negligence as a
matter of law. Accordingly, her negligence claims are waived by the valid and
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enforceable exculpatory clause in the Race Participant Agreement. The judgment of
the district court is affirmed.
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