Brad Ronald Stevens, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1175

Brad Ronald Stevens,
Appellant,

vs.

Emily Johnson Piper, et al.,
Respondents.

Filed April 13, 2020
Affirmed
Connolly, Judge

Ramsey County District Court
File No. 62-CV-18-7124

Brad R. Stevens, Moose Lake, Minnesota (pro se appellant)

Keith Ellison, Attorney General, Michael N. Leonard, Assistant Attorney General, St. Paul,
Minnesota (for respondents)

Considered and decided by Connolly, Presiding Judge; Slieter, Judge; and
Kalitowski, Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Appellant, a civilly committed pat ient of the Minnesota Sex Offender Program
(MSOP), brought this action against respondents, members of the MSOP staff and
administration, for dam ages resulting from injuries he received when playing softball.
Because the district court correctly granted respondents’ motion to dismiss on the ground
that appellant had assumed the risk of injury by playing softball, we affirm.
FACTS
Appellant Brad S tevens was civilly committed to MSOP as a sexually dangerous
person (SDP) in 2005. In accord with his treatment plan, he participated in several sports
as therapeutic recreation.
In 2018, acting pro se, he served and filed a 44 -page complaint alleging that:
(1) because the MSOP softball field had not been adequately maintained, the pitching plate
was not level with the field; (2) while appellant was pitching, another player hit the ball so
that it struck the pitching plate and hit appellant in the foreh ead; and (3) he experienced
severe bleeding, headache, vomiting, dizziness, and loss of emotional control as a result.
He raised counts of negligent duty to care, failure to maintain therapeutic recreational
softball, and failure to warn, and sought judgment not to exceed $1,500,000, attorney fees,
and other costs.
Respondents moved to dismiss the complaint under Minn. R. Civ. P. 12.02(e)
(failure to state a claim upon which relief can be granted) on the ground that appellant had
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assumed the risk of injur y from playing softball. The district court granted the ir motion
and dismissed the complaint.
Appellant challenges the dismissal.
D E C I S I O N
“We review de novo whether a complaint sets forth a legally sufficient claim for
relief. We accept the f acts alleged in the complaint as true and construe all reasonable
inferences in favor of the nonmoving party.” Walsh v. U.S. Bank, N.A., 851 N.W.2d 598,
606 (Minn. 2014) (citation omitted). The district court dismissed the complaint based on
primary assu mption of the risk, which relates to a defendant’s legal duty to prote ct a
plaintiff from harm, and “the existence of a legal duty is an issue for the court to determine
as a matter of law.” Jussila v. U.S. Snowmobile Assoc., 556 N.W.2d 234, 236 (Minn. App.
1996) ( quoting Larson v. Larson , 373 N.W.2d 287, 289 (Minn. 1985)), review denied
(Minn. Jan. 29, 1997).
Primary assumption of the risk completely bars a
plaintiff’s claim because it negates the defendant’s duty of care
to the plaintiff. . . . [It] ar ises only where parties have
voluntarily entered a relationship in which plaintiff assumes
well-known, incidental risks . . . [and] is dependent upon the
plaintiff’s manifestation of consent, express or implied, to
relieve the defendant of a duty.

Soderberg v. Anderson , 922 N.W.2d 200, 203 (Minn. 2019) (quotations and citations
omitted). “Minnesota courts commonly apply primary assumption of the risk in the context
of spectators at sporting events.” Schneider ex rel. Schneider v. Erickson , 654 N.W .2d
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144, 149 (Minn. App. 2002).1 Primary assumption of the risk requires that: (1) the plaintiff
voluntarily enter into a relationship where he assumes a well-known, incidental risk; (2) he
appreciates that risk; and (3) he chooses to take the risk even t hough he has a chance to
avoid it. Id. “It is the general rule that one who participates in a sport assumes the risk s
which are inherent in it.” Moe v. Steenberg , 147 N.W.2d 587, 589 (Minn. 1966) .
Appellant participated in the MSOP softball games. He argues that primary
assumption of the risk does not apply here because his “special relationship” with MSOP
conferred on MSOP a duty to protect him, since he was unable to protect himself. But
appellant provides no connection between his commitment as an SDP and his alleged
inability to know the risks of playing softball, and he asserts in his complaint that he played
sports, including baseball, all his life and that he ha d “advanced athletic skills.”
Appellant’s stated familiarity with softball and baseba ll supports the district court’s
reasoning that:
Even if there is no evidence that [appellant] had actual
knowledge of the risk of being hit by a ground ball, his
familiarity with the sport, evidenced by his long standing
history of playing a variety of s ports, including softball, was
such that he must have had knowledge of the danger posed by
the pitching plate allegedly being uneven to the ground. Based
upon [appellant’s] experience with the sport[s] of softball and
baseball, the court finds that [he] h ad knowledge of any

1 The doctrine of primary assumption of risk has been held to negate any duty of care to
spectators of baseball and softball games beyond provi ding some protected seating. See,
e.g., Brisson v. Minneapolis Baseball & Athletic Ass’n, 240 N.W. 903, 904 (Minn. 1932);
Wells v. Minneapolis Baseball & Athletic Ass’n, 142 N.W. 706, 708 (Minn. 1913). Alwin
v. St. Paul Saints Baseball Club, 672 N.W.2d 570, 573-74 (Minn. App. 2003); Swagger v.
City of Crystal, 379 N.W.2d 183, 185 -86 (Minn. App. 1985), review denied (Minn. Feb.
19, 1986).
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potential inherent risks associate d with playing softball that
day [i.e., the day he was injured].

Moreover, appellant asserted in his complaint that, prior to a scheduled tournament
at the end of May 2018, he informed MSOP staff that the softball field was “in terrible
condition” and “need[ed] to be raked and leveled to protect patients participating while in
softball.” The district court inferred from appellant’s assertions in his complaint that he
“knew that the allegedly uneven condition of the infield posed a hazard to players and that
the trajectory of a ground ball could be altered by an elevated pitching plate.”
Appellant also asserts in his complaint that “it was foreseeable that the nature of the
game would be altered by a grounded batted softball being uncharacteristically deflect[ed]
upward from an elevated pitching plate,” further supporting the district court’s finding that
appellant appreciated the risk of playing on that field: “[He] may not have foreseen t he
exact injury he would later receive, but he clearly appreciated that the risk of an uneven
field could pose injury.”
Finally, appellant argues that he had no chance to avoid the risk because he was
compelled to play softball. We disagree. His complaint again contradicts this argument:
he asserts that there were many other sports and activities he could have joined for
therapeutic recreation, and softball was his choice, not a requirement. He chose to take the
risk of playing softball on an uneven field.
Because appellant knew the risk of playing softball included being hit with a ball,
appreciated the risk of an uneven field, and chose to assume that risk although he could
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have avoided it by not playing softball, the district court did not err in concluding that the
doctrine of primary assumption of the risk applied and dismissing appellant’s complaint.
Affirmed.