Robert REIMER, Susan Reimer, individually and as husband and wife, Plaintiffs-Appellants,
v.
CITY OF CROOKSTON, Crookston Public School District # 593, Johnson Controls, Inc., KRISS Premium Products, Inc., Defendants-Appellees.
No. 02-1554.
United States Court of Appeals, Eighth Circuit.
Submitted: October 11, 2002.
Filed: April 10, 2003.
Keith M. Queensen, argued, Minneapolis, MN (Paula M. Jossart, on the brief), for appellant.
Julian C. Janes, argued, Edina, MN (James T. Martin, on the brief), for appellee KRISS Premium Products, Inc.
Scott R. Drury, argued, Chicago, IL (Michael S. Ryan, St. Paul, MN, on the brief), for appellee Johnson Controls, Inc.
John E. Hennen, argued, St. Paul, MN, for appellee City of Crookston.
Michael T. Rengel, argued, Fergus Falls, MN (Kent D. Mattson, on the brief), for appellee Crookston Public School District No. 593.
Before LOKEN,1 Chief Judge, BEAM, and MELLOY, Circuit Judges.
MELLOY, Circuit Judge.
In March, 1998, Robert Reimer was severely burned while examining a low-pressure boiler used to heat a swimming pool owned by the Crookston Public School District ("School District") and jointly operated with the City of Crookston ("City"). At the time of the accident, Mr. Reimer was an employee of Gibb & Sons, Inc., a boiler repair company. In this diversity action, Mr. Reimer and his wife sought damages based on the alleged negligence of the School District, the City, and two companies, Johnson Controls, Inc., and KRISS Premium Products, Inc. ("KRISS"), which serviced the pool facilities pursuant to contracts.
The district court granted summary judgment to all the defendants, holding they owed no duty of care to Mr. Reimer because his injury resulted from an open and obvious danger. Alternatively, the district court held that Mr. Reimer assumed the risk of his injury when he agreed to examine the boiler. After a careful review of Minnesota law in this area, we affirm in part and reverse in part. We agree that Johnson Controls and KRISS owed no duty of care to Mr. Reimer. As to the School District and City, however, we find genuine issues of material fact preclude summary judgment in their favor.
I.
This case involves a serious accident which occurred when Mr. Reimer, the plaintiff-appellant, was examining a school swimming pool boiler that reportedly was leaking. While Mr. Reimer was conducting an ultrasound test on the boiler, his knee accidentally brushed up against a corroded pipe, or "nipple," which was screwed into the boiler vessel via a welded fitting hole called a "bunghole."2 The corroded nipple broke off and Mr. Reimer was severely burned over much of his body. Few facts remain uncontested by the parties. For summary judgment purposes, however, we recite the facts in the light most favorable to Mr. Reimer. Offerdahl v. Univ. of Minn. Hosps. & Clinics,
The Crookston municipal swimming pool is jointly operated by the City and School District pursuant to a joint powers agreement. The School District owns the pool building and boiler, and is responsible for "routine maintenance and boiler checks." See Financial Responsibility Statement, City Supp.App. at 92. "Major capital expenses associated with maintenance, repair and replacement" of pool related items (such as, e.g., pumps, water filtration system, plumbing) are shared by the two entities, as are "major building improvements and equipment purchases." See id. Significant decisions concerning the boiler at the pool are subject to final authorization by the Board of Education. The School District has a contract with Johnson Controls to provide some maintenance services for the swimming pool boiler and other boilers at School District facilities. KRISS supplies boiler water chemicals to the swimming pool.
At some point during the 1997-98 school year, Ken Stromberg, the pool director, noticed some moisture on the floor of the boiler room near the rear left side of the boiler. Mr. Stromberg informed Ray Nelson and Bill Brinkman of his observation. Mr. Nelson was the head custodian in charge of the pool facilities, including the boiler, and, as such, was a licensed boiler engineer. Mr. Brinkman was the School District's business director. Mr. Nelson called Mr. Reimer at Gibb & Sons and told him that the pool boiler was "leaking in the tubes," and that "there was a leak in the back of the boiler."3 Mr. Reimer had worked for Gibb & Sons for about ten years and was considered to be a boiler repair expert. His duties included troubleshooting on commercial boilers.
Some time passed before Mr. Reimer could get to the school to follow up on Mr. Nelson's phone call. The parties dispute how long this period was, perhaps as long as months. In the meantime, it is assumed that the boiler continued to leak.
On the afternoon of March 10, 1998, John King of Johnson Controls was at the Crookston swimming pool for contract-related maintenance work. He testified that during his visit Mr. Nelson asked him to tighten the nipple located on the lower left rear of the boiler which, according to Mr. King, was "dripping a little bit or a little wet." King dep. at 76. Mr. King refused to tighten the nipple because it was corroded and appeared unsafe. He could not say precisely how much corrosion was visible but it was "enough to know that it wasn't something to put a wrench on." Id. at 75.
That evening at seven p.m., Mr. Reimer arrived to examine the boiler. Based on Mr. Nelson's suspicion that the boiler needed retubing, Mr. Reimer had brought along ultrasound equipment. An ultrasound test is a diagnostic procedure which measures the integrity of the metal comprising the boiler vessel. With this information, Mr. Reimer could advise the School District as to whether retubing the boiler would suffice or whether the boiler should be completely replaced.
It is not necessary that the boiler be "hot" or operational for the ultrasound test to be effective. An ultrasound works equally well on a cold, or even empty, boiler. In this instance, Mr. Reimer did not direct Mr. Nelson to cool down the boiler prior to beginning the examination.4 To conduct the test, Mr. Reimer and Mr. Nelson first pulled back an outer sheet metal cover so that the boiler vessel itself was accessible. Then, while Mr. Nelson held a "trouble light," Mr. Reimer selected several spots on the boiler vessel to lightly "grind down" in order to remove any rust and millcoat, thereby providing a smooth surface for testing.5 One of the spots he chose was relatively close to the nipple on the lower left rear of the boiler. At one point, while grinding in this area, Mr. Reimer felt that he did not have complete control of the grinder. He attempted to reposition himself and, in so doing, his left knee accidentally brushed against the corroded nipple. This caused the nipple to break out of the bunghole, releasing the pressurized hot water and steam from inside the boiler. As a result, Mr. Reimer sustained scalding water and steam burns over sixty-seven percent of his body.
Mr. Reimer and his wife sued the School District, the City, Johnson Controls and KRISS, alleging their negligence led to his injury. The district court granted the defendants' motions for summary judgment. This appeal followed.
II.
"Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Viking Supply v. Nat'l Cart Co.,
Essential to any negligence claim is the breach of a duty of care owed to the plaintiff. See Lubbers v. Anderson,
A. Duty
Whether a legal duty exists is generally a question of law to be determined by the court. ServiceMaster of St. Cloud v. GAB Bus. Servs., Inc.,
1. The School District and City of Crookston: landowner liability.
At issue in this case is the duty owed by a possessor of land to the employee of an independent contractor.6 The duty imposed on a possessor of land who hires an independent contractor is to inspect the premises for latent or hidden dangers and then to warn oncomers of those dangers. Conover v. N. States Power Co.,
In determining a landowner's duty, Minnesota applies the rule set forth in Section 343A of the Restatement (Second) of Torts. As explained by the Minnesota Supreme Court in a slip-and-fall case, Peterson v. W.T. Rawleigh Co.,
In support of its contention that it violated no duty toward the plaintiff, defendant asserts ... that it is not liable for injuries caused by defects which were obvious to, and comprehended by, plaintiff. We think the better rule is that adopted by Restatement, Torts (2d) s 343A, as follows:
`(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, Unless the possessor should anticipate the harm despite such knowledge or obviousness.'
W.T. Rawleigh,
The Minnesota Supreme Court has characterized Section 343A's "unless" clause as "a crucial qualifier to the general rule." Sutherland v. Barton, et al.,
The district court concluded that Mr. Reimer's injury was caused by an obvious danger, about which the defendants owed no duty to warn. The district court cited the following facts in support of this conclusion: "Reimer saw that the boiler nipple was badly corroded, and Reimer knew that the boiler was leaking. Reimer was a boiler repair expert hired specifically to investigate the problem of the leaking boiler. The suspect integrity of the boiler posed an inherent danger." Reimer v. City of Crookston, et al., No. 00-370,
Testimony and evidence regarding Mr. Reimer's subjective observations are not instructive on the issue of obviousness. "[T]he test for what constitutes an `obvious' danger is an objective test: the question is not whether the injured party actually saw the danger, but whether it was in fact visible." Louis,
Our analysis does not end there, however. There is nothing in the record to conclusively indicate that the dangerous condition in this case was "so obvious" as to preclude application of Section 343A's "unless" clause, and genuine issues of material fact remain as to whether the School District should have anticipated the harm to Mr. Reimer. See, e.g., Louis,
The School District disputes most of the above-recited facts. In our view, such factual disputes are precisely of the type that preclude summary judgment resolution. And contrary to appellees' contention, our holding is consistent with Sutherland v. Barton, et al., a Minnesota Supreme Court case with some factual similarities.
As in Sutherland, the plaintiff here had expertise in his field and alternatives other than confronting the risk. It is undisputed that Mr. Reimer could have ordered Mr. Nelson to turn off the boiler and let it cool overnight prior to examining it. However, these facts alone are not sufficient to find as a matter of law that no duty existed. The relevant inquiry remains whether under the circumstances the School District should have anticipated harm.
As explained by the Sutherland court: "A reason to anticipate the harm may arise when the landowner `has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk.'" Sutherland,
Given the conflicting evidence in the record as to what Mr. Reimer and the School District knew or should have known at the time of the accident, we conclude it is for a jury to determine whether this case falls within the "unless" clause of Restatement § 343A. Construing the record favorably to Mr. Reimer, the evidence is sufficient to establish that the School District, through its agent, Mr. Nelson, should have anticipated that Mr. Reimer might fail to appreciate the dangerous condition posed by the corroded nipple and be injured while examining the boiler. Accordingly, the record will not permit a summary judgment finding that the School District lacked a duty of care to Mr. Reimer. Because we deem the City joint owner-operators of the pool facilities, our conclusion on this issue applies equally to the City.
2. Johnson Controls and KRISS:
Absent landowner status, the existence of a legal duty to act depends on two factors: (1) the relationship of the parties, and (2) the foreseeability of the risk involved. Gilbertson v. Leininger,
Summary judgment in favor of KRISS was also proper. Pursuant to a contract with the School District, KRISS supplied chemicals for use in the swimming pool boiler to control unwanted mineral levels. Mr. Reimer alleges that KRISS's negligent chemical water treatment program caused the corrosion in the boiler. Assuming Mr. Reimer's allegation is true, we nevertheless discern no duty on KRISS' part to Mr. Reimer. KRISS owed a contractual obligation to the School District to supply chemicals as necessary for the upkeep of the pool and its boiler. Nothing in that contractual relationship supports a finding of a duty on KRISS's part to Mr. Reimer, an independent contractor who was hired by the School District for consultation and/or repair of the boiler. Further, at the time of Mr. Reimer's injury, the School District was aware of the corrosive condition of the nipple, as evidenced, at a minimum, by Mr. Nelson's interaction with Johnson Controls on March 10th. We agree that it was not reasonably foreseeable on KRISS's part that, with this knowledge, Mr. Nelson, a licensed boiler engineer, would permit an independent contractor to work on the boiler at and around the badly corroded nipple without taking appropriate precautionary measures. See Gilbertson,
B. Primary Assumption of Risk
As an alternative basis for granting summary judgment, the district court held that "[e]ven if the [defendants] did owe Reimer a duty, [they] are still not liable for his injuries because Reimer assumed the risks involved with boiler repair work." Reimer, No. 00-370,
The doctrine requires actual knowledge of a known risk. Wegscheider,
The district court's conclusion that Mr. Reimer assumed the risk of his injury was based primarily on the following: (1) Mr. Reimer, a boiler repair expert, was at the school to examine the boiler pursuant to reports of moisture and leaking; (2) as an expert, Mr. Reimer knew and appreciated that moisture and leaking lead to corrosion of the metal comprising the boiler; (3) Mr. Reimer knew that the boiler was operational and contained pressurized 250 degree water. Given these facts, the district court concluded that Mr. Reimer knew and appreciated the risk of being burned while examining the boiler and could have avoided that risk by first cooling down the boiler. Accordingly, Mr. Reimer's injury directly flowed from his decision to confront the known dangerous condition rather than avoid it and therefore he assumed the risk of his injury. We do not necessarily disagree with this logic. However, we do believe that it conflicts with Minnesota's interpretation and application of the primary assumption of risk doctrine.
In Olson v. Hansen,
Assumption of risk has two separate and distinct concepts: Primary and secondary assumption of risk. Primary assumption of risk is not so much an affirmative defense as an expression of the idea that the defendant owes a limited duty of care to the plaintiff with respect to the risk incident to their relationship....
Primary assumption of risk is applicable only where 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.
Id., at 127 (footnote omitted);10 see also Armstrong v. Mailand,
"Minnesota courts rarely apply primary assumption of the risk, and have found that its application is only appropriate under limited circumstances." Schneider v. Erickson,
The issue, then, is whether the undisputed facts in this case permit only one conclusion: that Mr. Reimer's serious burn injuries from the boiler were a well-known, incidental risk of the type of work voluntarily entered into by Mr. Reimer pursuant to the relationship between him and the defendants. The district court and the defendants have construed the relationship and risk broadly to conclude that the risk of being burned by scalding water is always incident to working on a boiler containing scalding water. Plaintiff advocates a more narrow construction so that the risk of being burned by scalding water would not necessarily be a "well-known incidental risk" to performing an ultrasound test on a boiler because the ultrasound procedure is noninvasive and the information to be garnered from the ultrasound was unrelated to the breakdown of the boiler at the nipple/bunghole area. Plaintiff also argues that the defendants' conduct enlarged and obscured the risk of harm.
After careful review of Minnesota's case law in this area, we find that the plaintiff's argument accords with Minnesota law. In Armstrong, the Minnesota Supreme Court found in favor of defendants in a wrongful death/negligence action after three firemen were killed in an explosion during a liquid petroleum fire which resulted in a boiling liquid expanding vapor explosion ("BLEVE").
Although there is abundant evidence of negligence or products defects which caused or contributed to the unfortunate and disastrous fire, ... the dispositive question in this case becomes: Is there a genuine issue of whether the risk of injury was reasonably apparent to the firemen? There is no question that the danger from the small fire at the pool of LP gas near the truck was reasonably apparent. Thus, it is clear that any negligence or product defect causing the initial fire provides no basis for recovery.
Our inquiry must be more detailed, however. The record indicates that the particular risk causing the deaths was a BLEVE. Still, the record is clear that the firemen in West St. Paul knew that when they encountered a fire at an LP gas storage facility a BLEVE was a reasonably apparent danger and one of the risks involved in fighting such a fire.... The fact remains that the firemen knew a BLEVE could occur, even though, like with any risk, they did not know exactly when the danger would manifest itself.
Id. at 352-53 (emphasis added).
Thus, Armstrong rejects a generalized approach in favor of a "more detailed" inquiry into the "particular risk" causing the injury. See also Griffiths v. Lovelette Transfer Co.,
Mr. Reimer's injuries were caused by scalding water and steam escaping from the boiler. The possibility that a repairman working on a malfunctioning boiler may be burned appears, on a general level, relatively self-evident. Whether such injury is a "well-known incidental risk," however, is a particularized and fact-intensive inquiry under Minnesota law. Mr. Reimer's actual knowledge and appreciation of the risk turns on many factors, such as the nature of the repair problem as originally described, whether Mr. Reimer, and other similarly trained repair experts, ever conduct pre-repair testing on an active boiler, and what Mr. Reimer observed or was told about the corroded nipple as a risk-enhancing condition.
According to his testimony, Mr. Reimer considered an ultrasound a noninvasive procedure which posed little risk of harm. He had done similar tests many times on, in his view, similarly rusty boilers without cooling them down first. And nothing in his observations or discussions with Mr. Nelson suggested that this particular boiler posed a heightened risk of danger. Mr. Reimer's version of events will, of course, be subject to challenge by defendants, but, at this stage, these facts create a genuine issue as to Mr. Reimer's actual knowledge of the risk in this case. See Kraft,
Granting Mr. Reimer the benefit of all favorable inferences from the record, a jury could reasonably conclude that based on the information he possessed at the time and given the task he was performing, the risk of being burned while examining the School District's boiler on March 10, 1998, was neither a reasonably apparent danger nor a reasonably foreseeable incidental risk. See Wegscheider,
There is, to be certain, considerable evidence adverse to Mr. Reimer's case. Most significantly, he is an experienced expert in the field of boiler repair and the risk of harm could have been completely avoided by turning off the boiler and letting it cool overnight. See Walk,
In reaching this conclusion, we are mindful that the Minnesota Supreme Court has itself acknowledged that "application of the doctrine of assumption of risk is confusing and has led to seemingly inconsistent decisions." Baber,
III.
Because Johnson Controls and KRISS owed no duty of care to Mr. Reimer, the district court properly granted summary judgment in their favor and we affirm that aspect of the district court's ruling. As to the School District and City, however, we find genuine issues of material fact preclude summary judgment resolution on the question of the duty of care owed by those defendants. We also find genuine issues of material fact with regard to whether Mr. Reimer relieved the defendants of any duty owed by assuming the risk of his actions. Accordingly, as to the School District and City, we reverse and remand for further proceedings consistent with this opinion.
Notes:
Notes
The Honorable James B. Loken became Chief Judge of the United States Court of Appeal for the Eighth Circuit on April 1, 2003
When the boiler is drained, the nipple is unscrewed and removed so that water can flow freely out of the boiler through the bunghole
According to Mr. Reimer, the fact that internal tubes in the boiler were leaking did not suggest any sort of extraordinary problem. Reimer aff. at ¶ 5-6. Rather, Mr. Reimer avers, these tubes are often replaced several times during the life of a boiler because the tubes' walls are thinner than any other elements on the boilerId.
Once the boiler was turned off, it would have taken several hours to cool down
Mr. Reimer describes the ultrasound test as a "noninvasive" procedure because it does not entail contact with the interior of the boiler. Reimer aff. at ¶ 13. We think it prudent to note that whether the ultrasound test is properly deemed noninvasive is a question of fact subject to jury determination. For purposes of summary judgment, however, we accept Mr. Reimer's characterization of the procedureSee Offerdahl,
Liability for injury to an employee of an independent contractor may also be imposed where the landowner "retain[s] `the general control and supervision of the work.'"Zimmer v. Carlton County Co-op. Power Ass'n,
In a subsequent case, the Minnesota Supreme Court held that the distinction between licensees and invitees was no longer determinative of the duty owed by landowners to entrants, although the status of the entrant may be a factor in assessing negligencePeterson v. Balach,
A court need not look at the foreseeability factor if there is no special relationship between the partiesErrico v. Southland Corp.,
Because we hold that Johnson Controls and KRISS owed no duty to Mr. Reimer, primary assumption of the risk is inapplicable with regard to those defendantsSee Louis,
"In its `secondary' sense assumption of risk means simply that the plaintiff was guilty of contributory negligence or fault."Swagger v. City of Crystal,
In Minnesota, primary assumption of risk has been most often applied to inherently dangerous sporting eventsSee, e.g., Grisim v. TapeMark Charity Pro-Am Golf Tournament,
Mr. Reimer also contends that the defendants enlarged and obscured his risk of harm by failing to point out the corroded nipple and/or tell him about the Johnson Controls employee's comments from earlier that daySee, e.g., Schneider,