Wynn Memorandum Opposing Summary Judgment (August 28, 2026)

Accessible document transcript

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STATE OF MINNESOTA DISTRICT COURT

COUNTY OF WADENA SEVENTH JUDICIAL DISTRICT

 PERSONAL INJURY
_____________________________________________________________________________

Macy Wynn,

  Plaintiff,

v.

Moment in Time Dance Company, LLC,

  Defendant.

                         Court File No.: 80-CV-26-78


Plaintiff’s Memorandum of Law
in Response to Defendant’s Motion
for Summary Judgment


_____________________________________________________________________________
Introduction
 Defendant asks the Court to decide both liability and damages based on a few
lines of testimony from Ms. Wynn’s deposition. On liability, Defendant takes Ms.
Wynn’s general acknowledgment that a dance maneuver “might not go right” and asks
the Court to treat it as conclusive proof that she voluntarily assumed the risk of her
injury. On damages, Defendant takes Ms. Wynn’s answers to defense counsel’s
questions about her condition at the time of the deposition and treats them as a
complete bar to all future harm.
Defendant’s approach fails as a matter of law. Implied primary assumption of
risk is reserved for a few historically recognized activities, and the Minnesota Supreme
Court has directed lower courts not to extend it beyond those limited settings. An
instructor-led dance rehearsal involving minor students falls outside the doctrine’s
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limited reach. Minnesota has never recognized implied primary assumption of risk in a
case like this, and Defendant identifies no decision from here or anywhere else in the
country applying the doctrine to dance instruction or rehearsal. Even if the doctrine
could extend that far, the facts of this case do not fit it—much less establish every
required element as a matter of law.
Defendant’s request to eliminate future damages likewise depends on viewing
selected testimony in isolation and misapplying the law. The jury must be permitted to
evaluate future harm from the complete evidentiary record, including medical
evidence, treatment records, and testimony from Ms. Wynn, her family, and other
witnesses. Defendant’s future damages argument requires the Court to disregard all
context, commonsense, contrary evidence, and the other sources of proof the jury is
entitled to consider. It also asks the Court to ignore its own Scheduling Order. To the
extent that the issue of future damages requires any rulings by the Court, those rulings
can be more appropriately made as a motion in limine or Frye-Mack motion after
discovery has closed.
The Court should deny Defendant’s motion in its entirety and allow the jury to
decide liability and damages under the applicable law and on the complete evidence
presented at trial.

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Documents Comprising the Record
1. All documents submitted by Defendant in support of its motion.
2. The Declaration of Colin Peterson and the following exhibits: Plaintiff’s
Answers to Defendant’s Interrogatories (Exhibit A); Defendant’s Answers to Plaintiff’s
First Set of Interrogatories (Exhibit B); Defendant’s Rule 26.01(a) Initial Disclosures
(Exhibit C); Defendant’s Responses to Plaintiff’s Requests for Production and Parent
Contract (Exhibit D); excerpts from the depositions of Jamie Hahn (Exhibit E), Michaela
Nelson (Exhibit F), and Madison Horn (Exhibit G); the Stipulated Scheduling Order
(Exhibit H); excerpts from Defendant’s website (Exhibit I); and medical records
containing the MRI and follow-up imaging reports (Exhibit J).

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Material Facts
This case arises from an instructor-led group dance rehearsal. Ms. Wynn was a
student dancer practicing a coordinated dance maneuver with several other student
dancers under the direction and supervision of Defendant’s adult instructors. During
that rehearsal, Ms. Wynn suffered a spinal injury—two compression fractures with
traumatic bone bruising across four vertebrae—and needed to be airlifted to Children’s
Hospital. Plaintiff alleges that Defendant’s inadequate instruction, supervision, and
safety precautions exposed Ms. Wynn to an unreasonable risk of injury during the
maneuver. See Compl. ¶¶ 18–23.
1. Defendant’s adult instructors directed a dance rehearsal involving a group of
minor students.
On December 12, 2024, 17-year-old Ms. Wynn attended the final rehearsal before
Defendant’s winter recital. Macy Wynn Dep. 79:23–80:3, 83:14–24. All of the dancers
were minors. Defendant’s employees Michaela Nelson and Jamie Hahn led the
rehearsal and were the only adults in the studio. Nelson Dep. 15:7–16:4.
Defendant’s owner and the group’s regular instructor, Madison Horn, did not
attend the rehearsal because of a personal conflict. Nelson and Hahn filled in to lead the
rehearsal. Macy Wynn Dep. 80:3–9; Hahn Dep. 16:20–17:10; Nelson Dep. 22:21–24:5.
Neither had taught the maneuver before. Horn Dep. 68:14–24, 72:1–22.
Nelson was the main instructor, but it was her first time instructing the group,
and she learned the maneuver by having the students show it to her. Nelson Dep. 10:5–
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11:10, 13:14–15:5. Hahn had not seen the group perform it before that day. Hahn Dep.
31:12–19, 38:2–4.
Nevertheless, Hahn and Nelson were the adults responsible for the rehearsal.
Both agreed that an instructor had responsibility for the students’ safety and for
stopping them from performing a maneuver that was not safe. Nelson Dep. 25:1–26:17;
Hahn Dep. 25:5–26:4, 52:1–8.
2. Defendant designed the coordinated maneuver and assigned each student’s role.
Horn introduced the maneuver in preparation for the December recital. She told
the students that she had an idea she wanted to try, placed the dancers in their
positions, and assigned Ms. Wynn her role. Macy Wynn Dep. 69:17–70:4. Ms. Wynn
would walk up the backs of other dancers, turn with another dancer’s assistance, and
fall backward “onto the arms of four dancers in a trust fall.” The four catchers would
then rotate Ms. Wynn back onto her feet. Def.’s Answers to Pl.’s First Set of Interrogs.
No. 7, at 3 (Mar. 24, 2026) (“Def.’s Interrog. Answers”).
Horn selected Ms. Wynn’s position and the four students who would catch her.
Horn Dep. 165:2–25. Horn initially proposed that Ms. Wynn walk up the other dancers’
backs and fall backward into the catchers’ arms. After some students suggested adding
a backflip, Horn approved that change and retained the decision whether the resulting
maneuver was safe enough to include in the recital. Macy Wynn Dep. 73:4–15; Horn
Dep. 163:1–23, 165:19–25.
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The maneuver was new and difficult. Horn introduced it no more than two
weeks before the injury and possibly only a few days beforehand. Macy Wynn Dep.
72:12–23. Ms. Wynn described it as harder and more complex than the group’s ordinary
choreography. Id. at 75:16–76:4.
3. Defendant’s instructors directed the maneuver at full speed despite a missing
catcher.
One of the four designated catchers, Danica Pederson, was absent from the
December 12 rehearsal. Macy Wynn Dep. 83:3–13; Horn Dep. 68:1–24. No one replaced
her. Macy Wynn Dep. 83:25–84:16; Horn Dep. 167:13–24. Her absence left what Ms.
Wynn described as an “open hole” in the formation. Macy Wynn Dep. 84:4–16.
The students raised the issue before attempting the maneuver. They asked how
they were supposed to perform it with a catcher missing and whether they should omit
it until Danica returned. Nelson and Hahn told them, “nope, let’s try it like this.” Macy
Wynn Dep. 86:6–19.
The students first practiced the maneuver slowly with safety mats in place. Macy
Wynn Dep. 86:20–25; Nelson Dep. 26:19–29:1. The instructors then removed the mats
and directed the students to attempt the maneuver at the speed of the music. Nelson
Dep. 28:17–29:17, 38:16–39:13. That was the first time this group had attempted the
maneuver at full speed with a catcher missing. Macy Wynn Dep. 87:2–9; Horn Dep.
166:17–21.
I was like are we still going to do this, because we’re missing
a person. And they said yes, let’s try it. And my instructors
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— as my instructors, I was listening to them and did it
anyways.
Macy Wynn Dep. 96:1–9.
During the full-speed attempt, Ms. Wynn slipped through the arms of the
students assigned to receive her and landed near the base of her neck. Nelson Dep.
37:3–38:15.
4. The fall fractured two vertebrae and caused traumatic injury across four levels of
Ms. Wynn’s upper spine.
Ms. Wynn initially experienced severe pain and could not feel her extremities.
When her mother arrived, Ms. Wynn was facedown, crying, and unable to move.
Emergency responders placed her in a cervical collar, secured her to a backboard, and
transported her to Astera Health. She was then airlifted to Children’s Hospital. Peterson
Decl. Ex. J, Medical Records at CH000001TL. At Children’s, providers documented
lightheadedness, dizziness, head pain, neck pain, back pain, left pelvic pain, and “funny
sensations to her lower extremities bilaterally.” Id.
An MRI confirmed the seriousness of the injury. It showed posttraumatic
marrow edema and bone contusions from T1 through T4, with compression fractures at
T3 and T4. Follow-up radiographs again identified the fractures. Id. At CH000006TL.
The fall injured four levels of Ms. Wynn’s upper spine and fractured two vertebrae.
Ms. Wynn began regaining sensation the next day and was eventually able to
walk. She was discharged in a wheelchair with activity restrictions and instructions to
follow up with pediatric neurosurgery. Id. at CH000007TL.
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Ms. Wynn has made a substantial recovery, but she continues to experience neck
pain, back pain, and migraines. Peterson Decl. Ex. A, Pl.’s Answers to Def.’s Interrogs.
No. 16, at 5 (Mar. 9, 2026). Alicia Wynn testified that Ms. Wynn experiences migraines
and pain at the location of the compression fractures. Alicia Wynn Dep. 81:1–82:24. Ms.
Wynn also missed out on her senior dance season and testified that the incident was
understandably quite scary and traumatizing. Macy Wynn Dep. 64:15–65:9.
Defendant asks the Court to hold that Ms. Wynn “impliedly” assumed the risk
because she acknowledged during her deposition that, from “living life and being on
the earth for 17 years,” she understood that a flip might not go perfectly. Def.’s Mem. at
8; Macy Wynn Dep. 113:8–18. Defendant also asks the Court to eliminate all future
damages based on selected testimony concerning Ms. Wynn’s condition at the time of
her deposition. Def.’s Mem. at 10.

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Summary Judgment Standard
Summary judgment is proper only when the record shows no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. Minn. R.
Civ. P. 56.01. The Court does not decide disputed facts and must view the evidence and
all reasonable inferences in Ms. Wynn’s favor. DLH, Inc. v. Russ, 566 N.W.2d 60, 70
(Minn. 1997); Grondahl v. Bulluck, 318 N.W.2d 240, 242 (Minn. 1982).
Whether a plaintiff knew and appreciated a particular risk ordinarily presents a
jury question when the evidence conflicts or permits different inferences. Ganser v.
Erickson, 156 N.W.2d 224, 226 (Minn. 1968); Rausch v. Julius B. Nelson & Sons, Inc., 276
Minn. 12, 21, 149 N.W.2d 1, 7 (1967). Assumption of risk becomes a question of law only
when the evidence is conclusive and reasonable people can draw but one conclusion.
Schroeder v. Jesco, Inc., 296 Minn. 447, 451, 209 N.W.2d 414, 417 (1973).
A motion seeking to eliminate a category of damages is governed by the same
summary judgment standard. The Court does not weigh competing evidence or decide
what damages Plaintiff ultimately will prove. It asks only whether, viewing the record
and reasonable inferences in Plaintiff’s favor, a genuine factual dispute exists as to
whether the claimed harm is recoverable. See DLH, 566 N.W.2d at 70–71. When the
evidence permits competing conclusions concerning the existence or likely duration of
future harm, the issue belongs to the jury.

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Argument
I. Implied Primary Assumption of Risk Does Not Apply to an Instructor-
Led Dance Rehearsal
The Minnesota Supreme Court laid out the current framework for assumption of
risk in Soderberg v. Anderson, 922 N.W.2d 200 (Minn. 2019). There are two types of
assumption of risk: primary and secondary. Secondary assumption of risk is an
affirmative defense and an aspect of comparative fault. Id. at 204. By contrast, primary
assumption of risk “is not a defense and applies only in limited circumstances.” Id.
Unlike secondary assumption of risk, it completely bars the plaintiff’s claim by negating
the defendant’s duty of care. Id. at 204–05. It arises only when the parties voluntarily
enter a relationship in which the plaintiff assumes well-known, incidental risks. Id. at
205 (quoting Bjerke v. Johnson, 742 N.W.2d 660, 669 (Minn. 2007)).
Within primary assumption of risk, consent may be express or implied. Express
primary assumption of risk applies when the plaintiff explicitly manifests consent to
relieve the defendant of its duties. The familiar example is a signed liability waiver. See
Armstrong v. Mailand, 284 N.W.2d 343, 351 (Minn. 1979). The question is not merely
whether the plaintiff chose an activity that involved risk. It is whether the plaintiff
consented to relieve the defendant of a duty to use reasonable care. Defendant does not
ask the Court to enforce any participation waiver here, so express primary assumption
of risk is inapplicable. Defendant instead asks the Court to find that Ms. Wynn gave
that consent by implication.
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That is the rarest and most extreme form of the doctrine. Implied primary
assumption of risk has been applied almost exclusively in “cases involving patrons of
inherently dangerous sporting events.” Wagner v. Thomas J. Obert Enters., 396 N.W.2d
223, 226 (Minn. 1986). Minnesota’s cases involve spectators exposed to flying baseballs,
golf balls, or hockey pucks and skaters encountering ordinary falls or collisions. See
Soderberg, 922 N.W.2d at 205–08. “A finding of primary assumption of the risk is a rare
thing in Minnesota.” Renswick v. Wenzel, 819 N.W.2d 198, 205 (Minn. App. 2012), review
denied (Minn. Oct. 16, 2012).
Soderberg confirms that the historical list is not an invitation to create new
categories of activities to which implied primary assumption of risk applies. There, the
Court was asked either to extend implied primary assumption of risk to downhill skiing
and snowboarding or to abolish the doctrine altogether. 922 N.W.2d 200, 209-210 (Minn.
2019). The Court declined to abolish the doctrine, but it was “loathe to extend” it to
another activity. Id. at 209. Emphasizing that assumption of risk “is not favored, and
should be limited rather than extended,” the Court also recognized that “the
nationwide trend has been toward the abolition or limitation of the common-law
doctrine of implied primary assumption of risk.” Id. The Court retained only a “limited”
role for the doctrine in the sports to which it had already been applied. Id. at 210.
Minnesota has analyzed implied primary assumption of risk for more than a
century. Never in that time has an appellate court applied it to anything close to an
instructor-led dance rehearsal involving minor students. Defendant asks this Court to
do what Soderberg says lower courts should not do: create a new no-duty rule for a new
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activity. Applying implied primary assumption of risk here would be directly contrary
to the Supreme Court’s direction that the doctrine be limited rather than extended. The
Court should deny Defendant’s motion on that ground alone.
II. Even If the Doctrine Could Apply, a Rational Jury Could Conclude That
Ms. Wynn Did Not Assume the Risk at Issue
Primary assumption of risk requires a “manifestation of consent, express or
implied, to relieve the defendant of a duty.” Armstrong v. Mailand, 284 N.W.2d 343, 351
(Minn. 1979). The plaintiff must know and appreciate the particular risk and voluntarily
choose to encounter it. Ganser, 156 N.W.2d at 226; Rausch, 149 N.W.2d at 7.
Defendant cannot satisfy that standard by defining the risk broadly as
“something might not go right.” Ms. Wynn understood that a dance maneuver might
not go exactly as planned. But the critical legal question is whether she consented to
relieve Defendant of its duty to exercise reasonable care. A general human awareness
that things may not always work out perfectly does not constitute the requisite consent
to apply the extraordinary doctrine of implied primary assumption of risk.
The context is also critically important. This is not a situation where an adult is
trying out a new activity that they know might be dangerous. Ms. Wynn was a minor.
She was participating in a supervised rehearsal. She was following the directions of
Defendant’s adult instructors. When the students asked to omit the maneuver because a
designated catcher was missing, the instructors told them to proceed. Defendant’s
theory would require the Court to hold, as a matter of law, that a minor student
assumes the risk of harm by following her adult coaches’ directions—or should
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disregard those directions to protect herself. At minimum, reasonable jurors could
conclude otherwise.
Even in activities where primary assumption of risk applies, a participant
assumes only the ordinary risks inherent in the activity. The doctrine does not eliminate
a defendant’s duty concerning risks created or increased by its own negligence. Wagner
v. Thomas J. Obert Enters., 396 N.W.2d 223, 226 (Minn. 1986); Aldes v. Saint Paul Ball Club,
Inc., 88 N.W.2d 94, 97 (Minn. 1958).
The evidentiary record—viewed in the light most favorable to Plaintiff —
demonstrates that Defendant increased the danger by placing two substitutes who had
never taught the maneuver in charge, proceeding without one of four designated
catchers, removing the mats, and directing the students to perform at full speed after
they asked to omit the maneuver. At minimum, a jury must decide whether Ms. Wynn
encountered an ordinary risk of a properly conducted maneuver or a different risk
created or increased by Defendant.
Implied primary assumption of risk does not apply to this activity. Even if it
could, the evidence would permit a jury to find that Ms. Wynn neither assumed the
specific risk presented by the rehearsal as conducted nor consented to relieve Defendant
of its duty concerning dangers created or increased by its own instruction and
supervision. Defendant’s request for summary judgment should be denied.
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III. Defendant Is Not Entitled to Partial Summary Judgment on Future
Damages
Defendant argues that Ms. Wynn’s deposition testimony “disqualifies any claim
for future special or general damages.” Def.’s Mem. at 10. That argument collapses two
distinct categories of damages— future medical expenses and future non-economic
harm—that are governed by different standards.
A. Defendant conflates future medical expenses with future non-economic
damages.
Future medical expenses and future bodily and mental harm are separate
categories of damages. CIVJIG 91.30 governs future medical expenses. To recover those
expenses, a plaintiff must establish that future treatment is reasonably certain to be
necessary and provide a basis for determining its cost. Lamont v. Independent School
District No. 395, 154 N.W.2d 188, 192 (Minn. 1967); Lind v. Slowinski, 450 N.W.2d 353, 358
(Minn. App. 1990); Kwapien v. Starr, 400 N.W.2d 179, 184 (Minn. App. 1987).
CIVJIG 91.25 separately governs future bodily and mental harm. That category
includes future pain, disability, disfigurement, embarrassment, and emotional distress.
4A Minn. Prac., Jury Instr. Guides—Civil CIVJIG 91.25. The jury may award damages
for any such harm that is reasonably certain to occur. Id. In deciding whether future
harm is reasonably certain, the jury considers the type, extent, and severity of the injury;
how painful it is; the treatment involved; how long the harm is likely to last; and any
other relevant evidence. Id. Plaintiff must prove those damages by the greater weight of
the evidence. See id. CIVJIG 90.15.
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Defendant’s cases therefore address only future medical expenses under CIVJIG
91.30. They provide no basis for eliminating future pain, disability, disfigurement,
embarrassment, or emotional distress under CIVJIG 91.25.
B. Defendant relies on selected deposition answers while disregarding all
other evidence in the record.
Defendant’s assertion that Ms. Wynn’s testimony “disqualifies” all future special
and general damages depends on selected answers from a deposition conducted by
Defendant’s counsel. The record is, of course, much broader. In sworn interrogatory
answers, Ms. Wynn stated that she had not fully recovered and continued to experience
neck pain, back pain, and migraines. Peterson Decl. Ex. A, Pl.’s Answers to Def.’s
Interrogs. No. 16, at 5 (Mar. 9, 2026). Her mother, Alicia Wynn, testified that her
daughter continued to experience migraines and pain at the locations of her
compression fractures, that the migraines had increased in frequency and intensity, and
that Ms. Wynn’s primary-care provider continued to follow them. Alicia Wynn Dep.
81:1–82:24.
Ms. Wynn also testified that she continued to experience emotional distress. She
lost her senior dance season, which was very important to her, described the injury as
scary and traumatizing, and explained its emotional effect on her family. Macy Wynn
Dep. 64:15–65:9.
The Court of Appeals in its decision Renswick v. Wenzel held that expert
testimony is not required to prove future non-economic damages. Although the
plaintiff’s orthopedic surgeon declined to offer an opinion on future pain, the court held
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that her testimony of continuing wrist pain was sufficient. Id. at 204–05. Expert
testimony is not the only means of proving future damages; evidence that the plaintiff
has not fully recovered may also suffice. Id. at 205 (citing Pagett v. N. Elec. Supply Co.,
167 N.W.2d 58, 65 (Minn. 1969)). Here, continuing pain and migraines, Alicia Wynn’s
corroborating testimony, emotional distress, and objective spinal injuries present a jury
question.
C. Future medical expenses should be addressed after expert discovery.
Ms. Wynn’s condition on the date of her deposition is not a medical prognosis.
The objective record shows traumatic injury across four levels of her upper spine and
compression fractures at T3 and T4. An appropriately qualified expert may conclude
that those injuries make future treatment reasonably certain even if she then had no
symptoms or treatment plans. The issue depends on expert evidence that is not yet
due—not on Ms. Wynn’s subjective assessment on a single day.
Plaintiff’s expert disclosures are due September 30, 2026, and Defendant’s are
due November 30, 2026. Peterson Decl. Ex. H, Stipulated Scheduling Order ¶¶ 2–3
(Apr. 1, 2026).
Defendant may challenge the evidentiary foundation after expert discovery.
Eliminating future medical expenses now would decide the issue before the required
evidence is due.
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Conclusion
Implied primary assumption of risk does not apply to this case. The Court
should deny Defendant’s motion and send the case to the jury, where it belongs.

Tyroler Leonard Injury Law

Dated: August 28, 2026            By: _______________________
       Colin Peterson (0392414)
       Isaac Tyroler (0390296)
       Attorneys for Plaintiff
       434 Hale Avenue N., Suite 130
       Oakdale, MN 55128
       Phone: 612-429-3155
       Fax: 651-401-6028


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