Christopher Alan WALK, Plaintiff/Appellant,
v.
STARKEY MACHINERY, INC., Defendant/Appellee,
v.
Continental Clay Company, Third Party Defendant.
No. 98-2554.
United States Court of Appeals, Eighth Circuit.
Submitted March 8, 1999.
Filed June 8, 1999.
Appeal from the United States District Court for the District of Minnesota.
BEFORE: FAGG, LAY, and WOLLMAN,1 Circuit Judges.
WOLLMAN, Chief J.
In this diversity action, Christopher Alan Walk appeals the district court's2 adverse grant of summary judgment in his product liability action for personal injuries suffered in a workplace accident. We affirm.
I.
Walk worked for the Continental Clay Company (Continental), as a clay loader or "mixer." Continental mixes and sells various types of clay for commercial use. Walk began working as a mixer in August of 1995 and was responsible for mixing twenty to thirty batches of clay per day.
A mixer combines dry material and water to form moist clay. That clay is then carried by conveyor belt into the trough of the pug mill,3 which was manufactured by Starkey Machinery (Starkey). The clay is then fed into an auger, which moves the clay down the trough and into a vacuum tube. When the clay emerges from the vacuum tube, it is bagged and boxed for shipment. After each batch of clay is finished, the sides of the trough are cleaned and excess clay is removed. To complete this process, Walk would disengage the auger and remove the protective cover on the trough. He would then use a scraper to push the excess clay toward the vacuum tube. He would then engage the auger and scrape the residual clay from between the auger blades.
On May 20, 1996, while cleaning the pug mill trough, Walk's hand became entangled in the auger, which pulled his arm into the machine. Co-workers and medical personnel were unable to remove Walk's arm from the machinery, and it was necessary to amputate the arm at the site of the accident.
Walk filed suit against Starkey, alleging negligence and strict liability based upon the unreasonably dangerous condition of the pug mill. The district court granted Starkey's motion for summary judgment, holding that Walk's claim was barred by the doctrine of primary assumption of the risk.
II.
We review a grant of summary judgment de novo. See Sperry v. Bauermeister, Inc.,
The sole issue in this appeal is whether the district court properly applied the doctrine of primary assumption of the risk. "[P]rimary assumption of the risk applies when a plaintiff manifests his or her acceptance of the risk and his or her consent 'to undertake to look out for himself and relieve the defendant of the duty.' " Kraft v. Ingersoll-Rand Co.,
In Andren, the court found that primary assumption of the risk applied when the plaintiff lit a cigarette and caused a liquid propane gas explosion.
Walk argues that his case is analogous to those cases in which primary assumption of the risk has been held to be inapplicable. In Peek v. Ostrom, the Minnesota Supreme Court found that an employee did not primarily assume the risk when he injured his hand while attempting to clean a running mill-saw.
Unlike the plaintiffs in Peek, Kraft, and Johnson, Walk was experienced. He accepted his first job in a clay plant in 1983 and had spent approximately ten years working in different phases of clay production at the time of the accident. He had been working in his current position for more than ten months. Although he had observed his co-workers and supervisor use the same cleaning method, he stated in his deposition that no one had instructed him to use this method to clean the pug mill. He also stated that he knew this method was dangerous, was told that it was dangerous, and that based upon his own experience he believed that the trough could be adequately cleaned with the auger disengaged.
Moreover, Walk knew that the auger was running and that it was capable of injuring him. Indeed, he acknowledged that his fingers had been nicked by the auger blades on at least two earlier occasions while he was cleaning the trough while the auger was running. In Kraft, we stated that the plaintiff's belief that the equipment was disconnected from its power source was the most significant factor making primary assumption of the risk inapplicable.
The judgment is affirmed.
LAY, Circuit Judge, dissenting.
The majority opinion, in all due respect, misconstrues Minnesota law. The Minnesota courts have drawn a bright line between primary and secondary assumption of risk. The Supreme Court of Minnesota has cautioned that the classes of cases involving an implied primary assumption of the risk are limited and uncommon. See, e.g., Springrose v. Willmore,
Minnesota law recognizes two types of assumption of the risk--primary and secondary. Andren v. White-Rodgers Co., 465 N.W .2d 102, 104 (Minn.Ct.App.1991). Primary assumption of the risk applies where the parties have "voluntarily entered a relationship in which plaintiff assumes well-known, incidental risks. As to those risks, the defendant has no duty to protect the plaintiff and, thus, if the plaintiff's injury arises from an incidental risk, the defendant is not negligent" and the plaintiff is barred from recovery. Olson v. Hansen,
In applying the doctrine of primary assumption of risk to the facts of the present case, the majority basically overlooks that "[t]he manifestations of acceptance and consent dictate whether primary or secondary assumption of the risk is applicable in a given case." Andren,
Walk concedes that the first element of assumption of the risk was met. He admits that he had knowledge of the risk that he could sustain serious injury if his hand came into contact with the auger blades. However, he maintains that neither the second nor third elements were met. Walk contends that he did not appreciate the risk because although he knew that if he stuck his hand into the auger he risked serious injury, he did not appreciate that if his scraper got caught on the trough while he was doing a routine part of his job that the blades could grab his scraper and hand and pull them further into the machine. Nor did he voluntarily assume the risk, he argues, because although the machine could have been turned off before cleaning, he kept it running because that was the way he was taught to do it, and the way that he and his supervisors had been doing it for years.
This court and Minnesota courts have found that primary assumption of the risk did not apply in situations where the plaintiff had performed the injury-causing action in the past without incident or had seen others do it without incident. First, in Piotrowski v. Southworth Prods. Corp.,
In another case, Kraft v. Ingersoll-Rand Co.,
Similarly, the Minnesota Court of Appeals has held that primary assumption of the risk did not apply where a plaintiff cut his fingers off while using a table saw without a blade guard to make freehand cuts. Johnson v. Southern Minn. Mach. Sales, Inc.,
Finally, the Supreme Court of Minnesota found that secondary rather than primary assumption of risk was applicable in a case where a group of young adults attended races at Brainerd International Raceway (BIR). Rieger v. Zackowski,
In granting summary judgment in the present case, the district court emphasized that Walk could have avoided the danger because Walk's employer did not criticize its employees for turning off the machine to clean it: "Continental did not criticize its employees for turning off the power to the auger.... There is no testimony that the employer required Mr. Walk to clean the pug mill while the auger was engaged." Walk v. Starkey Machinery, Inc., No. 96CIV1052 (D.Minn. May 7, 1998) (order granting summary judgment).
Again, the Supreme Court of Minnesota has considered a similar fact and rejected the application of primary assumption of the risk. In Peek v. Ostrom,
Although several of the cases discussed above emphasized the plaintiff's inexperience when finding primary assumption of risk inapplicable, the fact that Walk was experienced in this case should not necessarily mean that he appreciated the risk and voluntarily chose to undertake it. If anything, his experience in cleaning these machines would reinforce that it was proper to clean them while they were running because it was his and others' routine method of performing the task. Furthermore, whether one is sufficiently "experienced" to appreciate a risk is a factual issue, not a legal one; this issue is best left to the trier of fact and as such belongs exclusively to a jury.
In light of these cases, it should be obvious that the majority's application of primary assumption of risk is not faithful to Minnesota law. Furthermore, its application of this doctrine slights the factual circumstances under which the plaintiff lost his arm. The plaintiff did not place his hand and arm directly into the auger blades. This accident would not have occurred if his scraper, which he was using to clean the blades, had not caught on the trough. This was not a risk that plaintiff could anticipate or in any way appreciate. Yet, the majority urges that the plaintiff should have fully appreciated the risk involved. The risk involved was not directly placing his arm into the machinery, but rather was the inadvertent act whereby the scraper he was holding got caught in the trough and then pulled his hand and arm into the machinery.
Although Walk was experienced and knew he could have turned the auger off before he cleaned the machine, Walk had left the auger running while performing this task in the past without incident.7 Cleaning the machine was part of his routine, daily tasks. Furthermore, his co-worker and supervisor also cleaned the machine with the auger blades running without incident. As such, it does not appear that Walk released the manufacturer of its duty or voluntarily consented to the risk of having his arm entangled by cleaning the machine with a scraper while it was running, as he and others had done routinely in the past. Under Minnesota law, the district court should have allowed a jury to decide whether Walk assumed the risk in the secondary sense and, if so, to apportion fault.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
Notes
Roger L. Wollman became Chief Judge of the United States Court of Appeals for the Eighth Circuit on April 24, 1999
The Honorable Donald D. Alsop, United States District Judge for the District of Minnesota
A pug mill is a clay-working machine that removes the air from clay, shaping it into a final, usable form called a pug
Today's ruling further serves to denigrate a plaintiff's right to a trial by jury. This right serves as a basic reason that the application of the doctrine of primary assumption of risk is rare and seldom used
Secondary assumption of risk is a form of contributory negligence that bars recovery only to the extent the jury finds comparative fault in the plaintiff's assumption of the risk. T.H.S. Northstar Assoc. v. W.R. Grace and Co.,
This case was decided before Minnesota separated assumption of the risk into two separate doctrines
The district court found and the majority agrees that Walk appreciated the risk of getting caught in the auger because he had experienced close calls in the past when he dropped the scraper into the mill. Walk argues in his brief, however, that his accident did not occur because he dropped his scraper. Walk claims he did not drop his scraper, but rather, that the scraper got caught on a groove in the trough. He maintains that he did not appreciate this risk