Peter Christiansen, a minor, by and through his parent and natural guardian, Brad Christiansen, 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This opinion will be unpublished and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
A17-0528

Peter Christiansen, a minor,
by and through his parent and natural guardian,
Brad Christiansen,
Appellant,

vs.

Kyler Kobus,
Respondent,

Duluth Amateur Hockey Association,
Defendant

Filed January 16, 2018
Affirmed
Worke, Judge

St. Louis County District Court
File No. 69DU-CV-15-1918

Jeffrey M. Montpetit, Marcia K. Miller, SiebenCarey, PA, Minneapolis, Min nesota (for
appellant)

Michael J. Tomsche, Tomsche, Sonnesyn & Tomsche, P.A., Minneapolis, Minnesota (for
respondent)

Considered and decided by Worke, Presiding Judge; Rodenberg, Judge; and Reilly,
Judge.

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U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant challenges the district court’s grant of summary judgment in favor of
respondent, arguing that appellant’s claims were not barred by an exculpatory clause ; or,
alternatively, that respondent’s conduct was greater-than-ordinary negligence not covered
by the exculpatory clause. We affirm.
FACTS
On October 9, 2013, appellant Peter Christiansen, a minor, by and through his parent
and natural guardian, Brad Christiansen, participated in pee -wee hockey tryouts.
Respondent Kyler Kobus was also at tryouts. Kobus was “tripping” and “slashing”
Christiansen’s friend during warmups. 1 Christiansen confronted Kobus and told him to
stop. Kobus nudged Christiansen in the shoulder and hit him in the back of his helmet with
his glove causing Christiansen to fall. Another player then fell on the ice and Kobus got
“on top of him.” Christiansen responded by hitting Kobus in the head with his stick. Kobus
chased Christiansen and hit him in the back of the head with a glove or a stick. Christiansen
fell. Christiansen had a headache and felt nauseous. A coach skated Christiansen to the
bench and told him to go to the locker room. In the locker room, Christiansen threw up.

1 Because we are reviewing a summary -judgment dismissal , the facts surrounding the
incident are as depicted in Christiansen’s deposition . See Fabio v. Bellomo , 504 N.W.2d
758, 761 (Minn. 1993) (stating that when reviewing the grant of summary judgment, this
court views “the evidence in the light most favorable to t he party against whom judgment
was granted”).

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Sometime later, Christiansen found medical staff and reported that he did not feel well and
thought that he might have a concussion.
Christiansen filed a complaint against Kobus and defendant Duluth Amateur
Hockey Association ( DAHA), the sponsor of the youth hockey tryouts , alleging that he
was seriously and permanently injured “when he was s truck from behind by . . . Kobus.”
Christiansen alleged that his injury “was the direct result of the negligence and carelessness
of . . . Kobus and DAHA, whether jointly or severally.”
DAHA moved for summary judgment, arguing that Christiansen’s complaint should
be dismissed because it was precluded by the Waiver of Liability, Release, Assumption of
Risk and Indemnity Agreement that he and his parents executed when they registered for
hockey tryouts ( the waiver). DAHA also asserted that it was entitled to attorney fees
pursuant to the waiver . Kobus joined in DAHA’ s motion for summary judgment. In
opposing summary judgment, Christiansen argued that while there was no dispute that his
parents agreed to the terms of the waiver, there were genuine issues of fact as to whether
Kobus and DAHA’s conduct “constituted greater-than-ordinary negligence,” which would
fall outside of the waiver.
During a hearing on the summary-judgment motion, Kobus argued that the waiver
included “other participants,” which included him. He further argued that Christ iansen’s
complaint alleged only a claim for general negligence, w hich was covered by the waiver.
Christiansen acknowledged that “[the] waiver serves effectively to waive negligence,” but
claimed that the case was about greater-than-ordinary negligence. Christiansen argued that

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he properly pled greater-than-ordinary negligence in the complaint by including the word
“carelessness.”
The district court granted DAHA and Kobus’s motion for summary judgment,
concluding that there was no dispute that Christia nsen agreed to the terms of the waiver
and the waiver covered negligent conduct by DAHA and “other participants,” including
Kobus. The district court concluded that there was no claim for greater -than-ordinary
negligence before it because Christiansen failed to plead anything other than negligence in
his complaint. Finally, the district court ruled that DAHA was entitled to attorney fees
because the waiver included an indemnification provision. However, th e district court
ruled that if Kobus had moved for attorney fees, he would not be entitled to recover them
under the waiver because the term “ releasees,” in the context o f the indemnification
provision, did not refer to other children participating in the sport.
Following the summary -judgment ruling, Christiansen and DAHA entered in to a
Pierringer release. The district court dismissed Christiansen’s claims against DAHA based
on the terms of the release. This appeal followed.
D E C I S I O N
Christiansen argues that the district court erred in granting summary judgment in
favor of Kobus . This court “review[s] a district court’ s summary judgment decision de
novo. In doing so, [this court] determine[s] whether the district court properly applied the
law and whether there are genuine issues of material fact that preclude summary
judgment.” Riverview Muir Doran, LLC v. JADT Dev. Gr p., LLC, 790 N.W.2d 167, 170
(Minn. 2010) (citation omitted). Summary judgment must be granted “if the pleadings,

5
depositions, answers to interrogatories, and admissions on file, tog ether with [any]
affidavits . . . show that there is no genuine issue as to any material fact and that either
party is entitled to a judgment as a matter o f law.” Minn. R. Civ. P. 56.03. The moving
party has the burden of showing the absence of a genuine issue of material fact. Anderson
v. State Dep’t of Nat. Res. , 693 N.W.2d 181, 191 (Minn. 2005). A genuine issue of fact
exists when reasonable minds can draw different conclusions from the evidence presented.
DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997).
Waiver
Christiansen first argues th at the waiver is ambiguous a s to the term “ releasees,”
which creates a fact issue as to whether Kobu s is covered under the waiver. Christiansen
also argues that, even if Kobus is covered under the waiver, the waiver is invalid because
it seeks to release greater-than-ordinary negligence. Kobus claims that Christiansen failed
to raise these issues in district court. This court generally considers only issues that “were
presented and con sidered by the [district] court .” Thiele v. Stich , 425 N.W.2d 580, 582
(Minn. 1988) (quotation omitted). And a party is not allowed to switch theories on appeal.
Id.
In his appellate brief, Christiansen states: “For purposes of this appeal, the relevant
factors are whether the [waiver] was ambiguous or purported to release greater than
ordinary negligence.” But Christiansen argued in district court that the issue was whether
Kobus’s conduct fell outside of the waiver because it was greater-than-ordinary negligence.
He did not assert that the waiver was ambiguous and he acknowledged that “th[e] waiver
serves effectively to waive negligence, but this is about greater than ordinary negligence.”

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The district court stated : “[Christiansen] . . . argues that the act s . . . of [ Kobus]
constitute greater than ordinary negligence, thus placing [his] conduct outside the
protections of the . . . [w]aiver . . . . ” The district court concluded: “As a result,
[Christiansen] yields to the argument . . . that the waiver is clear, unambiguous, does not
release more than ordinary negligence, does not contraven e public policy, and applies to
the negligent acts of . . . ‘other participants,’ including . . . Kobus.” Because Christiansen
did not challenge whether Kobus was an “other participant ,” which is included in the
definition of “releasees” covered by the wa iver, or whether the waiver was invalid for
purporting to release greater-than-ordinary negligence, he forfeits those issues on appeal.
However, Christiansen argues that this court should consider whether the term
“releasees” is ambiguous because the “district court created an issue ” when it interpreted
the term two different ways. It is this court’s responsibility to “decide cases in accordance
with law, and that responsibility is not to be diluted by counsel’s . . . failure to specify
issues.” State v. Hannuksela, 452 N.W.2d 668, 673 n.7 (Minn. 1990) (quotation omitted).
When the interests of justice require it, this court may consider issues not raised by a party
in district court. Moorhead Econ. Dev. Auth. v. Anda, 789 N.W.2d 860, 875 (Minn. 2010).
But even in reviewing Christiansen’s claim that the waiver is ambiguous as to the term
“releasees,” we still conclude that no genuine issue of material fact exists and summary
judgment was appropriate.
Under certain circumstances, “parties to a contract may, without violation of public
policy, protect themselves against liability resulting from their own negligence.”
Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 922-23 (Minn. 1982). When the language

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of a contract is clear and unambiguous, this cour t enforces the agreement of the partie s as
expressed in the contract. Dykes v. Sukup Mfg. Co. , 781 N.W.2d 578, 582 (Minn. 2010).
A contract is ambiguous if it is susceptible to more than one reasonable interpretation. Id.
This court reviews de novo whether a contract is ambiguous. Id.
The waiver indicates that it “waive[s] and relieve[s] releasees from liability for
personal injury . . . caused by n egligence . . . of releasees.” “Releasees” is defined to
include: “USA Hockey, Inc., its affiliate associ ations, local associations, member teams,
event hosts, other participants, coaches, officials, sponsors, advertisers, and each of them,
their officers, directors, agents and employees.” (Emphasis added.) The waiver states that,
in consideration of the participant’s registration, “participant . . . waive[s], release[s] and
relinquish[es] any and all claims for liability . . . a rising out of participation.” (E mphasis
added.) It also states that the participant assumes risks related to ice hockey, including
“risks and dangers . . . arising from participating with bigger, faster and stronger
participants.” (Emphasis added.)
The district court determined that Kobus was a releasee because he was an “other
participant[].” This interpretation was proper because Christiansen, as the registered
hockey player, is referred to as “participant” in the waiver. Thus, the district court properly
determined that Kobus, also a hockey player, was covered under the waiver as a releasee
because he was an “other participant[].”
Christiansen claims that the district court created an issue of ambiguity when it
interpreted “releasee” to not include Kobus for purposes of the waiver’s indemnification
provision. The waiver provides: “Participant . . . agree[s] if any clai m for participant’s

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personal injury . . . is commenced against releasees, he/she shall defend, indemnify and
save harmless releasees from any and all claims or causes of action . . . presented for
participant’s personal injuries . . . .” The district cou rt determined that this language
required Christiansen to pay fees and costs incurred by DAHA, as a releasee, in defending
a lawsuit precluded by the waiver. The district court determined, however, that when read
in context, the indemnification provision did not “specifically identify other players such
as . . . Kobus,” despite the provision including the term “releasees.” Christiansen claims
that the district court ’s interpretation of “releasee” as including Kobus when waiving
liability but excluding Kobus regarding indemnification renders the waiver ambiguous.
The district court ’s conflicting interpretations, however, do not render the waiver
ambiguous.
The waiver includes only one list of “releasees.” “Releasees” includes “other
participants.” The waiver refers to the registered hockey player as “participant”; thus, the
reasonable interpretation of “other participants,” included as “releasees ,” is other hockey
players particip ating in the sponsored events. Based on the waiver’s unambiguous
language, Kobus is a releasee and protected from liability under the waiver.
Greater-than-ordinary negligence
Christiansen argues that even if the waiver is valid and covers Kobus, Kobus is still
liable because his conduct was greater-than-ordinary negligence not covered by the waiver.
The district court concluded that no claim for greater-than-ordinary negligence was before
the court because Christiansen failed to properly plead greater-than-ordinary negligence.

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Christiansen asserts that he included greater -than-ordinary negligence in his
complaint when he alleged that his injury “was the direct result of the negligence and
carelessness of . . . Kobus .” Christiansen asserts that the word “carelessness” and his
statement that “he was struck from behind” by Kobus put Kobus on notice of his claim for
greater-than-ordinary negligence. But the supreme court has held that “carelessness,”
construed in accorda nce with its recognized meaning, is synonymous with ordinary
negligence. State v. Hayes, 244 Minn. 296, 300, 70 N.W.2d 110, 113 (1955); see also In
re Welfare of M.B. W., 364 N.W.2d 491, 493 (Minn. App. 1985) ( stating that “ordinary
negligence” resulting in property damage can constitute “careless” driving) . And the
allegation that “he was s truck from behind” by Kobus does not, in itself, put Kobus on
notice of a claim of anything more than negligence.
Because Christiansen alleged only negligent or careless cond uct, and the suprem e
court has held that careless ness is synon ymous with ordinar y negligence, Christiansen
failed to properly plead a greater-than-ordinary-negligence claim that would put Kobus on
notice.2 Because negligent acts are covered under the waiver, the district court did not err
in granting summary judgment in favor of Kobus.
Affirmed.

2 Christiansen could have moved to amend his complaint, but he did not do so.