Christopher Walk v. Starkey Machinery
180 F.3d 937
8th Cir.
1999
Check Treatment

*1 v. Mount intentional.” Lester must be Dist., Ark.

Vernon-Enola (citations (Ark.1996) 540, 542 917 S.W.2d

omitted) (alteration original). We find juror could infer from

that no reasonable waive that Lennox intended to

these facts The entries under

its counterclaim. invoice Balance” column on each

“Account still disputed amount was

showing that the that Lennox continued clearly

due indicate More for that amount. payment

to seek

over, no addition proffered and Jones A/C the coun

al evidence of an intent to waive

terclaim, only on the invoices to relying argu waiver

support theory. their Their a matter of

ment therefore fails as reject court did not err

and the district on this

ing proposed instruction

issue. Conclusion

VIII. Tulsa entered on A/C’s reversed, and of contract claim is

breach remanded to the district court

the case is judgment in favor

with directions to enter judgement on that claim. The

of Lennox is af-

entered on Lennox’s counterclaim in full.

firmed WALK,

Christopher Alan

Plaintiff/Appellant, INC., MACHINERY,

STARKEY

Defendant/Appellee, Clay Company, Third

Continental

Party Defendant.

No. 98-2554. Appeals, States Court of

United

Eighth Circuit. March

Submitted 8, 1999.

Filed June *2 an auger,

then fed into which moves the clay trough down the a vacuum and into clay emerges from tube. When tube, bagged vacuum it is and boxed for shipment. clay After each batch of is fin- ished, the sides of the are cleaned clay complete and excess is removed. To process, disengage this Walk would protective and remove the cover on trough. He would then use a push clay the excess toward vacuum He would engage tube. then scrape clay the residual from between blades. MN, Dyck, Minneapolis, ar- Sharon Van 20, 1996, May pug On (John Goetz, brief), gued C. on the for trough, entangled mill Walk’s hand became Appellant. auger, pulled which his arm into the Paul, Haws, MN, argued, Daniel A. St. person- machine. Co-workers medical Appellee. nel were unable to remove Walk’s arm machinery, necessary from the and was FAGG, LAY, WOLLMAN,1 Before: amputate the arm at the site of the Judges. Circuit accident. WOLLMAN, Judge. Chief against Starkey, Walk filed suit alleging action, diversity Christopher negligence liability and strict upon based appeals Alan district Walk court’s2 unreasonably dangerous condition of grant summary judgment adverse of in his mill. pug granted The district court product liability for personal inju- action Starkey’s summary judgment, motion for workplace ries suffered accident. We holding by that Walk’s claim was barred affirm.

I. II. Clay Walk worked for the Continental (Continental), Company clay as a loader or We review a summary of “mixer.” Continental vari- mixes sells judgment de novo. Sperry See v. Bauer types clay ous of for commercial use. meister, Inc., 4 F.3d Cir. began working as a in August mixer 1993). doing, In so “[w]e must decide responsible 1995 and was for mixing record, whether the when viewed twenty thirty clay per day. batches of light [Walk], most favorable to the non- A dry mixer combines moving party, material and wa- genu shows that there is no clay. ter to form clay moist That is then Starkey ine issue of material fact” and that by conveyor carried belt into the trough is entitled to aas matter of law. mill,3 Bone, the pug by which was (citing manufactured See id. Cole v. 993 F.2d (8th Cir.1993)). Starkey Machinery (Starkey). clay When the material Roger Judge 1. L. Wollman clay-working became Chief 3.A mill is a machine that Appeals the United States Court of for the clay, shaping removes the air from final, it into a Eighth April Circuit on pug. usable called a form AIsop, The Honorable Donald D. United Judge States District for the District of Minne- sota. Ctr., Inc., ty Training Patrol peo and “reasonable N.W.2d undisputed, are facts conclusion, only assump (Minn.Ct.App.1988) (finding one that a ple can draw law for the question primarily is a volunteer assumed the risk tion of the risk White-Rodgers 465 choosing Andren v. “to encounter a well-known inci- court.” roofing; risk of slipping falling dental *3 roof’); review the district diversity this we v. Tryco off the Gilbertson cf. Co., (8th Cir.1974) 958, of Minnesota law de interpretation court’s F.2d Mfg. 492 961 Russell, Regina College novo. See Salve (finding pre-Springrose assumption 1217, 225, 231, 111 113 499 S.Ct. U.S. plaintiff the risk was not because (1991); Kaplon v. Howmedi L.Ed.2d 190 operate did not choose to a fertilizer- (8th Cir.1996). ca, Inc., 263, 266 83 F.3d spraying knowledge machine with full operation dangerous). its in is appeal The sole issue that his case argues analogous properly applied court whether the district in which primary assump- to those cases primary assumption of the inappli- tion of the risk has been held to be “[P]rimary assumption of the risk Ostrom, In cable. Peek v. the Minnesota his or when a manifests applies employee found that an Court risk and his or her acceptance her of the primarily assume the he him risk when to look out for consent ‘to undertake injured his hand attempting clean and relieve the defendant of self Co., 488, a running 136 mill-saw. 107 Minn. 120 duty.’” Ingersoll-Rand Kraft (internal (Minn.1909). (8th Cir.1998) 584, 1084, quo finding N.W. 1085 In F.3d 586 omitted). inapplicable, doctrine court applica tations The doctrine is risky plaintiffs experience stressed limited with inherently ble to activities. See at (noting v. W.R. Grace sawmills. See id. 1084 that the T.H.S. Northstar Assocs. Cir.1996). Co., injured day on his first 66 F.3d work, old, Thus, involving twenty years of cases an and had limit- “[t]he classes assumption experience). of risk are not ed work Because the implied primary experience, v. had such limited the court many.” (quoting Springrose Id. at 176 Willmore, Minn. 192 N.W.2d found that he could not have (Minn.1971)). 1085; Kraft, at pri “The elements of the risk. See id. see also (weighing plain- are that the 136 F.3d at 586 fact that mary assumption of 1) 2) risk; experience than appreciat knew of the tiff had less one week 3) risk; against applying primary assumption of ed the chose to risk); v. Southern Minn. accept though even he or she had Johnson Sales, Inc., Kraft, at a choice to avoid it.” 136 F.3d Mach. 104-05). Johnson, Andren, 465 N.W.2d at (citing eighteen- court found that because the primary the court found that year-old inexperienced plaintiff had wit- assumption applied of the risk when the shop nessed his teacher and foreman en- cigarette liquid lit a and caused a activity eventually gage in the same propane gas explosion. 465 N.W.2d him, injured primarily could not have he It found that demon- assumed the risk. See id. knowledge by testifying strated Peek, Kraft, in explode. ap-

that he He gas knew could Unlike Johnson, ac- preciated experienced. the risk because he acknowl- Walk was He job clay plant in 1983 edged gas prior cepted that he smelled to the his first spent approximately years ten explosion. Finally, plaintiff voluntarily clay produc- accept by lighting ciga- working phases chose to the risk different rette in the room when he could tion at the time of the accident. He had gas-filled position current working have chosen not to smoke. See id. at 105. been his than months. he had Legionville See also Goodwin v. more ten Safe- sion, supervisor majority co-workers and bright observed his obliterates the method, he stated use the same ignored cautionary line and has lan- that no one had instructed deposition guage contained in law. Minnesota him to use this method to clean the pernicious evil a precedent of such will do mill. He also stated that he knew this nothing more than confuse the trial bar of dangerous, method was was told Minnesota.4 dangerous, and that based upon recognizes types Minnesota law two experience he believed that own and sec adequately be cleaned with could risk — ondary. White-Rodgers Andren v. disengaged. 465 N.W.2d 104 (Minn.Ct.App.1991). Moreover, Walk knew that Primary assumption of applies *4 it capable parties “voluntarily where the have en Indeed, injuring him. he acknowledged tered a relationship which as fingers by that his had been nicked the well-known, sumes incidental As risks. to auger blades on at least two earlier occa- risks, those duty the defendant has no to sions while he was cleaning the and, protect thus, plain the if the running. Kraft, while the In we injury tiffs an arises from incidental stated that the belief that the defendant negligent” is not and the equipment pow- was disconnected from its plaintiff is barred from recovery. Olson v. er source significant was the most factor Hansen, 39, 44, 124, Minn. 299 216 N.W.2d making primary assumption (1974). 127 Primary Here, assumption of the inapplicable. 136 F.3d at 686. risk is undisputed placed inapplicable where the his hand in defendant’s trough knowing enlarges conduct inherent risk. Rus engaged knowing moving Co., ciano v. State Farm Mut. Auto. Ins. posed blades injury substantial risk of 271, 445 N.W.2d (Minn.Ct.App.1989). 273 him. Accordingly, the district court did law, Under Minnesota primary before as in holding not err that Walk had assumed sumption applies, injury. the risk of such an must first manifest consent to relieve the obligation defendant of the of reasonable The is affirmed. conduct, and every “[i]t is not deliberate LAY, Judge, dissenting. Circuit encountering of a danger known which is reasonably interpreted to be as evidence of majority opinion, The respect, all due Noren, Iepson such consent.” v. 308 misconstrues Minnesota law. The Minne- 812, (Minn.1981) N.W.2d 815 (quoting W. sota courts have drawn a bright line be- Prosser, Handbook of the Law of Torts tween primary and secondary assumption (4th ed.1971)). § 68 Secondary assump of risk. Court of Minnesota tion of the risk “is an affirmative defense has cautioned that the classes of cases an established breach of which an involving implied primary assumption may only be raised when the risk are has limited and uncommon. See, Willmore, chosen to e.g., encounter a known Springrose v. 292 23, 24, (1971); Minn. danger by 192 N.W.2d created Goodwin v. Legionville negligence of Safety Wagner Patrol the defendant.” Ctr., Inc., Training Enters., N.W.2d 50 Thomas J. Obert 396 N.W.2d (Minn.1986) (citation today’s omitted).5 Yet in deci- 226 Today's 4. ruling denigrate further Secondary assumption serves to of risk is a form of plaintiffs right contributory negligence to a jury. right recovery trial This that bars only comparative to the extent the serves as a finds application basic reason that the plaintiff’s assumption fault in the of the doctrine of of risk T.H.S. Northstar Assoc. v. W.R. Grace and is rare and seldom used. .1995). 66 F.3d Cir (8th Cir.1994), primary as 15 F.3d 748 applying this court found secondary primary to the facts of the rather than sumption of risk as- case, majority basically sumption overlooks that of risk was involved where plaintiff jumped top on of a wet lift acceptance manifestations of table to “[t]he get the rolling, wheels fell from the table primary consent dictate whether or sec permanent injuries. and suffered ondary We held assumption applicable of the risk is “did not have actual given case.” N.W.2d knowledge of a known risk and he did not Assumption of the risk differs from make the choice to chance the risk rather contributory negligence, which is based on than avoid it. and other carelessness, [Plaintiff] em- “by being an exercise of in ployees similarly stomped stood or telligent choice.” Beckman v. V.J.M. En the lift table without (Minn.1978) (cita incident for seven ters., months.” Id. at 753. omitted). tion Under Minnesota risk, in establish either Ingersoll-Rand another Kraft sense, or the defen Co., (8th Cir.1998), 136 F.3d 584 this court (1) dant must show that the reversed the district court’s of sum- risk; (2) knowledge of the had an appreci mary judgment employee where an of a risk; (3) ation of the had a choice to sugar processor brought beet against suit *5 voluntarily avoid the risk but chose to the piler manufacturer of a beet after she chance the risk. 465 N.W.2d at injured while standing gap inside a in 104-05. the machine that should have been cov- ered. plain- the court noted the Walk concedes that the first element of inexperience, tiffs the court also consid- assumption of the risk was met. He ad- placed ered the fact that the had knowledge mits that he had of the risk gap her hands and a shovel into this before injury that he if could sustain serious his without incident. Id. at 586. hand came into contact with the However, blades. he maintains that nei- Similarly, Ap the Minnesota Court of ther the second nor third elements were peals primary assumption has held that of ap- met. Walk contends that he did not apply the did not where a cut risk preciate although fingers the risk because he using his off while a table saw if guard knew he stuck his hand into the without a blade to make freehand injury, he risked serious he did not cuts. Johnson Southern Minn. Mach. (Minn.Ct. Sales, Inc., appreciate that if scraper got caught his the he doing App.1989). holding, while routine In so the court em part job grab phasized his the blades could the fact that pull his and hand them in performing cutting way further the same into the machine. Nor did he foreman him in had instructed argues, way assume the he because al- same he seen his foreman and though shop the machine could have been former teacher make freehand cuts. turned off cleaning, kept before he it run- Id. ning way because was the he was Finally, Court of Minneso- it, taught way to do and the that he and ta found that than pri- rather supervisors doing years. had been it for mary assumption applicable of risk was in

This court and group young Minnesota courts have a case where a adults that primary assumption found attended races Brainerd International (BIR). Zackoski, in apply did not situations where the plain Raceway Rieger v. (Minn.1982). races, performed tiff had injury-causing ac N.W.2d 16 After the past tion in the plaintiff, along without incident or had with several of his First, seen others do it without incident. spectators, jumped friends and other Corp., Piotrowski v. Southworth Prods. fence to the racetrack after the races enter appreciate that the did not driving sized non-racers were had concluded at 23. danger. the track. Id. Id. around cars their by one of the cars hit Plaintiff was discussed Although several of the cases argued at 19. BIR injured. Id. severely plaintiffs inexperi- emphasized the above of the risk was finding primary assumption ence when recovery because to bar applicable the fact that Walk was inapplicable, entered the fence and jumped not neces- experienced this case should rejected this ar- court racetrack. The sarily that he mean secondary assump- and found gument it. If voluntarily chose to undertake to the applicable risk was more tion of experience these anything, his facts, saw others noting that the prop- it was would reinforce that machines the racetrack. and enter jump the fence they were er to clean them while BIR had found that at 23. The court Id. and others’ routine it was his because access to the prevent its breached the task. Further- performing method at 24. racetrack. Id. more, sufficiently “experi- one is whether summary In granting a factual appreciate a risk is enced” emphasized court the district one; issue, issue best left legal not a danger could have avoided belongs to the trier of fact and as such criticize employer did not because Walk’s exclusively jury. ato machine turning for off the employees its cases, it should light of these be criticize it: to clean “Continental majority’s application of obvious that the turning power off the employees its of risk is not faithful testimony that There is no auger.... Furthermore, appli- its to Minnesota law. Mr. to clean employer required slights the factual cation of this doctrine engaged.” mill *6 circumstances under which the Inc., Machinery, No. Starkey place lost his arm. (order 1998) (D.Minn. 7,May 96CIV1052 auger directly his hand and arm into the summary judgment). granting not have oc- blades. This accident would of Minnesota Again, Court using scraper, curred if his which he was rejected fact and has considered a similar blades, caught on the to clean the had not assumption of application not a risk that trough. This was Ostrom, In Peek v. 107 Minn. the risk. any way appreciate. or in anticipate could (1909),6the court held 120 N.W. 1084 Yet, majority urges inappro- the risk was fully appreciated the risk in- should have the trial court’s priate and reversed directly volved. The risk involved was not notwithstanding verdict machinery, placing his arm into the but for the defendant where whereby act rather was the inadvertent splitting cut a saw while he hand was scraper holding got caught he was the re- cleaned the chute that surrounded pulled and then his hand and however, court, volving saw. The noted machinery. arm into the inexperienced, experienced clean out the Walk was not been instructed not to chute, operated could have turned the off and that others who had knew he machine, Walk had necessary clean before he cleaned the the saw found it auger running performing while way. area around the in the same Id. left the saw N.W, incident.7 past task in the without empha- 1084. The court majority court found and the before Minnesota 7. The district This case was decided get- agrees appreciated the risk of separated assumption into two expe- ting caught because he separate doctrines. past when he close calls in the rienced part the machine was of his rou- Cleaning Furthermore,

tine, co- daily tasks. supervisor

worker and also cleaned with the blades

machine such, incident. it does not

without As. that Walk released the manufactur-

appear or consented to

er of its entangled by arm having

the risk of the machine with running,

it was as he and others had done

routinely past. Under Minnesota court should have allowed the district to decide whether Walk assumed and, so, if sense apportion fault.

UNIVERSITY OF IOWA HOSPITALS CLINICS,

AND Plaintiff-

Appellant, SHALALA,

Donna E. in her Ca Official

pacity Secretary Department as Services,

of Health and Human Defen Appellee.

dant -

No. 97-1943. Appeals, Court of

United States

Eighth Circuit.

Submitted Dec.

Filed June rather, dropped scraper got caught into the mill. Walk ar- brief, however, gues in his that his accident groove trough. He maintains that he dropped scraper. did not occur because he appreciate this risk. drop scraper, Walk claims he did not but