Amanda M. Doub, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0322

Amanda M. Doub,
Appellant,

vs.

Life Time Fitness, Inc.,
Respondent,

Muska Electric Company,
Defendant.

Filed October 2, 2017
Affirmed
Peterson, Judge

Hennepin County District Court
File No. 27-CV-16-3001

Andrew J. Rorvig, Aaron S . Eken, McEllistrem, Fargione, Landy, Rorvig & Eken , P.A.,
Minneapolis, Minnesota (for appellant)

Brian A. Wood, William L. Davidson, João C.J.G. de Medeiros, Lind, Jensen, Sullivan &
Peterson, P.A., Minneapolis, Minnesota (for respondent)

Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
PETERSON, Judge
In this appeal from the dismissal of her personal -injury claims against respondent,
appellant argues that the district court erred by concluding that , in the context of an

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exculpatory clause, a claim for gross negligence is not an independent tort action, distinct
from a claim for ordinary negligence. We affirm.
FACTS
Appellant Amanda Doub was suddenly and unexpectedly burned by steam when
she entered a steam room in a fitness center owned by respondent Life Time Fitness, Inc.
Doub had previously used the steam room numerous times without any problems. A
warning sign outside of the steam room did not warn of the potential for burns.
When Doub joined the fitness center, she signed a “Member Usage Agreement,”
which contained the following liability waiver:
3. WAIVER OF LIABILITY. On behalf of m yself
. . ., I hereb y voluntaril y and forever release and discharge
Life Time from, covenant and agree not to sue Life Time for,
and waive, any claims, demands, actions, causes of action,
debts, damages, losses, costs, fees, expenses or any other
alleged liabilities or obligations of any kind or nature, whether
known or unknown (collectively , “Claims”) for any Injuries
to me . . . in the Use of Life Time Premises and Services which
arise out of, result from, or are caused by any
NEGLIGENCE OF LIFE TIME [or] me . . . .

A. N egligence Claims. I understand that Negligence
claims include but are not limited to Life Time’s (1) negligent
design, construction (including renovation or alteration),
repair, maintenance, operation, supervision, monitoring, or
provision of Life Time Pr emises and Services; (2) negligent
failure to warn of or remove a hazardous, unsafe, dangerous or
defective condition; (3) negligent failure to provide or keep
premises in a reasonably safe condition; (4) negligent
provision or failure to provide emergency care; (5) negligent
provision of services; and (6) negligent hiring, selection,
training, instruction, certification, supervision or retention of
employees, independent contractors or volunteers; or (7) other
negligent act(s) or omission(s).

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(Emphasis in original.)
Doub brought this action against Life Time and defendant Muska Electric Company
asserting claims for negligence and gross negligence. 1 In her amended complaint, Doub
alleged that “Life Time had a duty t o use reasonable care to inspect and reasonably
maintain its premises and to warn entrants to protect entrants from unreasonable risk of
harm” and that “ Life Time knew or should have known that the premises contained a
serious hazard which could not have been discovered by entrants through re asonable
observation.” Life Time moved to dismiss the amended complaint under Minn. R. Civ. P.
12.02(e) for failure to state a claim upon which relief can be granted. Life Time argued
that because the exculpatory clause in the member usage agreement is limited to claims for
negligence, it is enforceable, and because Minnesota tort law does not distinguish between
degrees of negligence, Doub’s claims fall within the express terms of the exculpatory
clause. Life Time also argued that Doub voluntarily assumed the risk of encountering hot
steam by choosing to enter the steam room. The district court granted Life Time’s motion
to dismiss on the ground that, in the context of enforcing an exculpatory clause, Minnesota
law does not recognize a gross-negligence claim as a separate, independent claim, distinct
from an ordinary -negligence claim, and Doub could not overcome the valid exculpatory
clause by pleading a claim for gross negligence . The district court did not address Life
Time’s assumption-of-the-risk argument.

1 Doub claimed that improper electrical wiring caused the increased temperature and her
injuries were the direct and proximate result of Muska Electric’s careless, negligent, and
grossly negligent maintenance and inspection of the steam room.

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Doub appealed from the judgment of dismissal, and this court dismissed the appeal
because Doub’s claims against Muska Electric Company were still pending. Doub v. Life
Time Fitness, Inc., No. A16-1324 (Minn. App. Aug. 26, 2016) (order). After set tling her
claims against Muska Electric Company, Doub filed this appeal. She challenges only the
dismissal of her gross-negligence claim.
D E C I S I O N
A defendant may move to dismiss a claim for “failure to state a claim upon which
relief can be granted.” Minn. R. Civ. P. 12.02(e).
In reviewing whether a complaint states a claim, we consider
as true those facts alleged in the complaint, construing
reasonable inferences in favor of the nonmoving party. A
district court m ay dismiss under rule 12.02 if it appears to a
certainty that no facts, which could be introduced consistent
with the pleading, exist which would support granting the relief
demanded. We are not bound by legal conclusions stated in a
complaint.

Scheffler v. City of Anoka , 890 N.W.2d 4 37, 449 (Minn. App. 2017) (quotations and
citation omitted), review denied (Minn. Apr. 26, 2017). “In deciding a motion to dismiss,
the court may consider the entire written contract when the complaint refers to the contract
and the contract is central to the claims alleged.” Baker v. Best Buy Stores, LP, 812 N.W.2d
177, 180 (Minn. App. 2012) (quotation omitted), review denied (Minn. Apr. 25, 2012).2

2 The facts about Doub using the steam room numerous times and about the warning sign
were stated in Doub’s affidavit, but the district court did not rely on those facts in reaching
its decision. See Fabio v. Bellomo , 504 N.W.2d 758, 761 (Minn. 1993) (“When matters
outside the pleadings are presented to a court considering a motion to dismiss, and those
external matters are not excluded by the court when it makes its determination, the motion
to dismiss shall be treated as one for summary judgment. Minn. R. Civ. P. 12.02.”).

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Doub argues that the district court erred in concluding that the exculpatory clause
in the member usage agreement bars her claim for gross negligence. Citing Schlobohm v.
Spa Petite, Inc., 326 N.W.2d 920 (Minn. 1982), Doub contends that “gross negligence is
something much greater [than ordinary negligence] and therefore outside the constraints of
an exculpatory clause, which can only waive ordinary negligence.” The exculpatory clause
at issue in Schlobohm was part of a membership contract for a health spa, and it released
the defendant health spa from claims for “all acts of active or passive negligence.” Id. at
921-22. The plaintiff was injured while lifting weights at the spa, and she brought suit,
alleging that the spa was negligent.3 Id. at 922. The spa moved for summary judgment on
the sole ground that the exculpatory clause relieved it from liability. Id. The district court
denied the motion based on its conclusions that the contract was a contract of adhesion and
the exculpatory clause was void as against public policy.4 Id.
On appeal, the supreme court acknowledged the principle that, if an exculpatory
clause “is either ambiguous in scope or purports to release the benefited party from liability
for intentional, willful or wanton acts, it will no t be enforced.” Id. at 923. The supreme
court then noted that the exculpatory clause in the plaintiff’s membership contract
“specifically purports to exonerate [the spa] from liability for acts of negligence and
negligence only” and that the plaintiffs “make no claim that [the spa] or its employees acted
willfully, intentionally or wantonly.” Id. The supreme court held that the exculpatory

3 The injured plaintiff’s husband also asserted a claim for loss of consortium. 326 N.W.2d
at 922.
4 Doub does not argue that the exculpatory clause in the member usage agreement
contravenes public policy.

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clause, “being unambiguous and limited to a release of liability arising out of negligence
only” was enforceable. Id. The supreme court reversed and remanded for entry of
judgment in favor of the spa on its motion for summary judgment. Id. at 926.
Unlike the plaintiff in Schlobohm, who alleged only that the spa was negligent,
Doub asserted claims for negligence and gross negligence. Doub argues that, under
existing law, an exculpatory clause may provide a defense against a claim for negligence
but not against a claim for gross negligence. The rule established in Schlobohm, however,
states that an exculpatory clause will not be enforced if it purports to release the benefited
party from liability for intentional, willful or wanton acts; it does not state that a release of
claims for gross negligence is unenforceable.
Doub contends that, in Beehner v. Cragun Corp. , 636 N.W.2d 821 (Minn. App.
2001), review denied (Minn. Feb. 28, 2002), this court recognized that a gross -negligence
claim exists in the context of an exculpatory clause. 5 But, although Beehner involved an
exculpatory clause and an allegation of gross negligence, this court did not address whether
Minnesota recognizes a cause of action for gross negligence in the context of an
exculpatory clause.

5 Doub also cites an unpublish ed decision of this court. Hanson v. Bieloh , 2007 WL
1893315, at *1-3 (Minn. App. 2007) (following Beehner and affirming summary judgment
for respondents when release did not apply to claims for gross negligence and “appellant
failed to present evidence t hat respondents’ conduct was willful, wanton, or grossly
negligent”).

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In Beehner, the plaintiff purchased a ticket to go on a guided horseback ride and
signed a “Horse Rental Agreement and Liability Release Form for Individuals,” which
contained the following exculpatory clause:
In consideration of THIS STABLE allowing my participat ion
in this activity, under the terms set forth herein, I . . . do agree
to hold harmless, release and discharge THIS STABLE . . .
from all claims, demands, causes of action and legal liability,
whether the same be known or unknown, anticipated or
unanticipated, due to THIS STABLE ’s and/or ITS
ASSOCIATES’ ordinary negligence; and I do further agree
that except in the event of THIS STABLE’s gross negligence
and willful and wanton misconduct, I shall not bring any
claims, demands, legal actions and causes of action, against
THIS STABLE and ITS ASSOCIATES . . . .

Id. at 825 (emphasis added).
The plaintiff was injured during the horseback ride when a dog frightened her horse,
and she sued, alleging negligence in the operation of the trail ride. Id. at 826. Following
discovery, the stable moved for summary judg ment, arguing that the exculpatory
agreement released it from any liability arising from its alleged negligence related to the
operation of the trail ride. Id. The district court found that the exculpatory clause was
enforceable and that no issues of material fact existed as to the stable’s alleged gross
negligence and granted summary judgment in favor of the stable. Id.
On appeal, this court affirmed the district court’s finding that the exculpatory clause
was enforceable as consistent with public policy. Id. at 828. But this court reversed the
summary judgment in favor of the stable and explained:
Given [the] facts, viewed in the light most favorable to
appellant, a jury could reasonably find that [the stable]

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committed greater -than-ordinary negligence by allowing the
dog to accompany the horses.

Because there is an issue of material fact concerning
whether [the stable’ s] failure to restrain the dog constituted
greater-than-ordinary negligence and whether, ther efore, this
conduct was within the scope of the exculpatory clause, the
district court erred in granting summary judgment on this issue.

Id. at 830.
This court did not decide in Beehner that an exculpatory clause may not provide a
defense against a claim for gross negligence.6 To the contrary, this court cited Schlobohm
for the principle that an exculpatory clause will be unenforceable if it “purports to release
a party from liability for intentional, willful, or wanton acts.” Id. at 827. Then, consistent
with this principle, this court allowed the gross -negligence claim to proceed, not because
an exculpatory clause that releases gross-negligence claims would not be enforceable, but
because the exculpatory clause at issue in Beehner did not purport to release claims for
gross negligence. If the fact -finder found that the stable’s conduct constituted gross
negligence or wi llful and wanton misconduct, the exculpatory clause would not bar the
plaintiff’s action.
Furthermore, the Minnesota Supreme Court long ago stated that “‘[t]he doctrine that
there are three degrees of negligence—slight, ordinary, and gross—does not prevail in this

6 Unlike the exculpatory clause in Schlobohm, which released claims for “all acts of active
or passive negligence, ” the exculpatory clause in Beehner released only claims due to
“ordinary negligence.” Because the exculpatory clause in Beehner did not purport to
release claims for gross negligence, this court could not have held in Beehner that an
exculpatory clause that releases claims for gross negligence is unenforceable. This issue
simply did not arise under the facts in Beehner.

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state.’” Peet v. Roth Hotel Co., 191 Minn. 151, 156, 253 N.W. 546, 548 (1934) (quotation
omitted). In Peet, a bailment case, the supreme court explained:
It is evident that the so -called distinctions between
slight, ordinary, and gross negligence over which courts have
perhaps somewhat quibbled for a hundred years can furnish no
assistance.

Defendant’s liability if any is for negligence. In that
field generally, the legal norm is a care commensurate to the
hazard, i. e., the amount and kind of care that would be
exercised by an ordinarily prudent person in the same or similar
circumstances. The character and amount of risk go far, either
to decrease or increase the degree of care required. The value
of the property, its attractiveness to light fingered gentry, and
the ease or difficulty of its theft, have much to say with triers
of fact in determining whether there has bee n exercised a
degree of care commensurate to the risk, whether the bailment
be gratuitous or otherwise. However unsatisfactory it may be,
until legal acumen has developed and formulated a more
satisfactory criterion, that of ordinary care should be follow ed
in every case without regard to former distinctions between
slight, ordinary, and great care.

Id. at 155-56, 253 N.W. at 548 (quotation omitted).
Minnesota caselaw recognizes that there is a difference between ordinary
negligence and gross negligence , and the term “gross negligence” is frequently used in
Minnesota.7 See State v. Bolsinger , 221 Minn. 154, 1 59, 21 N.W.2d 480, 48 5 (1946)
(stating that “[g]ross negligence is substantially and appreciably higher in magnitude than
ordinary negligence. It is materially more want of care than constitutes simple

7 The exculpatory clause i n Beehner explicitly drew a distinction between ordinary
negligence and gross negligence, and this court stated in Beehner that “[g]ross negligence
is ‘very great negligence or absence of even slight care, but [it is] not equivalent to wanton
and willful’ conduct.” 636 N.W.2d at 829 (quoting Ackerman v. Am. Family Mut. Ins. Co.,
435 N.W.2d 835, 840 (Minn. App. 1989)).

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inadvertence. It is an act or omission respecting legal duty of an aggravated character as
distinguished from a mere failure to exercise ordinary care. ” (quotation omitted) ),
overruled on other grounds by State v. Engle, 743 N.W.2d 592 (Minn. 2008). But a claim
for gross negligence is not recognized as a distinct cause of action, separate from a cause
of action for ordinary negligence. Instead, a cause of action for negligence is recognized,
and what constitutes ordinary care is determined by the circumstances.
Also, Minnesota recognizes different degrees of negligence when directed to by
statute. In Bolsinger, the supreme court stated: “ Notwithstanding the rule in civil cases
that degrees of negligence are not recognized in this state, it is our plain duty to recognize
and give effect to degrees of negligence where a statute adopts them as a basis for fixing
criminal responsibility.” 221 Minn. at 165, 21 N.W.2d at 488. But because no statute is
applicable to this case, we agree with the district court that Doub may not “side step the
exculpatory clause by alleging something greater than ‘ordinary negligence,’” and we
affirm the dismissal of Doub’s complaint for failure to state a claim upon which relief can
be granted.8
Affirmed.

8 Because we are affirming the dismissal under Minn. R . Civ. P . 12.02(e), we will not
address Life Time’s alternative argument that Doub voluntarily assumed the risk of
encountering hot steam.