Eischen v. S, A13–0104.

• Decision Date: 15 October 2013
• Docket Number: No. A13–0104.,A13–0104.
• Citation: 835 N.W.2d 629
• Parties: Kurt EISCHEN, et al., Appellants, v. CRYSTAL VALLEY COOPERATIVE, defendant and third party plaintiff, Respondent, v. Dan Eischen, third party defendant, Respondent.
• Court: Minnesota Court of Appeals

835 N.W.2d 629

Kurt EISCHEN, et al., Appellants,

v.CRYSTAL VALLEY COOPERATIVE, defendant and third party plaintiff, Respondent,

v.Dan Eischen, third party defendant, Respondent.

No. A13–0104.

Court of Appeals of Minnesota.

Aug. 5, 2013.

Review Denied Oct. 15, 2013.

Syllabus by the Court

The doctrine of primary assumption of risk does not apply to bar claims for injuries arising out of towing of farm equipment.

John M. Riedy, Nicholas J. Maxwell, Maschka, Riedy & Ries, Mankato, MN, for appellants.

Richard W. Sobalvarro, Matthew W. Moehrle, Rajkowski Hansmeier, Ltd., St. Cloud, MN, for respondent Crystal Valley Cooperative.

Paul N. Muske, Muske, Muske & Suhroff, Springfield, MN, for respondent Dan Eischen.

Considered and decided by HUDSON, Presiding Judge; STONEBURNER, Judge; and SCHELLHAS, Judge.

OPINION

SCHELLHAS, Judge.

Appellants argue that the district court erroneously dismissed their negligence claim against respondent on summary judgment based on the court's application of the primary-assumption-of-risk doctrine. We agree, and we reverse and remand for trial.

FACTS

Appellants Kurt Eischen and JoAnn Eischen (Eischens) sued respondent Crystal Valley Cooperative, alleging that Crystal Valley's negligence caused Kurt Eischen to suffer injuries on July 1, 2010, including pain, disfigurement, and disability, and caused JoAnn Eischen to suffer loss of companionship and society with her husband, Kurt Eischen. Eischens allege that Crystal Valley caused those injuries by negligently training and supervising its employees and by supplying its employees with chains. Crystal Valley attached the chains to a tractor to tow a self-propelled sprayer that was stuck in a farm field that Kurt Eischen and his son, Matt Eischen, owned or leased together and farmed. In response to Eischens' complaint, Crystal Valley raised the defense of primary assumption of risk and also commenced a third-party action against Dan Eischen, another son of Eischens, alleging that his negligent operation of a tractor caused Eischens' injuries and that, if Crystal Valley were found negligent, it would be entitled to contribution and/or indemnity from Dan Eischen.

The following facts are from deposition testimony of Kurt Eischen, Dan Eischen, and Crystal Valley employees. Kurt Eischen grew up on a farm and has farmed his entire life. At the time that he sustained his injuries, he owned or rented 800 acres of tillable ground and farmed an additional 320 acres with his three sons, including Dan Eischen.

In 2010, Kurt Eischen contracted with Crystal Valley to fertilize a portion of his farm land. On July 1, Crystal Valley dispatched several employees and an approximately 30,000–pound liquid-fertilizer sprayer to Kurt Eischen's farm. A Crystal Valley employee operated the sprayer. The sprayer twice became stuck in the field. When the sprayer first became stuck, Crystal Valley called Matt Eischen, asking that a tractor be brought to the field. Matt Eischen called Kurt Eischen, who called Dan Eischen, who brought his tractor to the field to pull the sprayer free. To pull the sprayer free, the Crystal Valley employees used two 3/8–inch chains supplied by Crystal Valley. Crystal Valley employees hooked the two chains to the sprayer. Because of concern about damaging the sprayer with the tractor, a Crystal Valley employee and Kurt Eischen locked the chains to a loop on the end of a tow rope to increase the distance between the tractor and the sprayer. Kurt Eischen supplied the tow rope. To pull the sprayer free, Dan Eischen backed the tractor toward the sprayer and Kurt Eischen hooked the tow rope to the tractor.

To extricate the sprayer in the field the first time it became stuck, Kurt Eischen stood between the tractor and the sprayer, held the rope and chains off the ground, and signaled Dan Eischen to drive the tractor forward to remove the slack and create “a little tension.” Dan Eischen did so. Kurt Eischen then moved out of the way and signaled Dan Eischen with his hand to drive the tractor forward. At the same time, a Crystal Valley employee attempted to drive the sprayer. The parties successfully freed the sprayer, and those present unhooked the equipment.

While using the same procedure, the parties attempted to free the sprayer the second time it got stuck, but a chain snapped and struck Kurt Eischen below his right knee, resulting in serious injuries that required a two-week hospitalization, more than five operations, and a nerve graft. Kurt Eischen testified at his deposition over a year and a half later that he continued to farm but could not move his right foot, had ongoing pain, and wore a brace on his right leg.

The parties dispute the cause of the injuries that Kurt Eischen sustained during the parties' second attempt to free the stuck sprayer. Among other facts, they dispute Kurt Eischen's location when he signaled to Dan Eischen to move the tractor forward; they dispute how much Dan Eischen accelerated in response to Kurt Eischen's hand signal before the chain snapped; and they dispute whether the chains that Crystal Valley supplied were defective. Crystal Valley moved for summary judgment solely on the basis that Kurt Eischen primarily assumed the risk of his injuries.¹ The district court granted summary judgment to Crystal Valley and dismissed Eischens' negligence claim.

This appeal follows.

ISSUE

Did the district court properly apply the primary-assumption-of-risk doctrine to bar Eischens' negligence claim against Crystal Valley?

ANALYSIS

An appellate court “review[s] de novo the district court's grant of summary judgment to determine whether genuine issues of material fact exist and whether the district court erred in applying the law.” Ruiz v. 1st Fid. Loan Servicing, LLC, 829 N.W.2d 53, 56 (Minn.2013). An appellate court “view[s] the evidence in the light most favorable to the party against whom summary judgment was granted.” McKee v. Laurion, 825 N.W.2d 725, 729 (Minn.2013).

On appeal, Crystal Valley's only argument is that Kurt Eischen primarily assumed the risk of his injury and therefore relieved Crystal Valley of any duty to him. “Primary assumption of the risk completely negates a defendant's negligence” by “negat[ing] the defendant's duty of care to the plaintiff.” Daly v. McFarland, 812 N.W.2d 113, 119 (Minn.2012) (quotation omitted). “Ordinarily, whether a person has knowledge that will permit the application of the defense of assumption of risk is a jury question, at least where there is conflicting evidence or evidence from which different inferences may be drawn.” Ganser v. Erickson, 279 Minn. 235, 237, 156 N.W.2d 224, 226 (1968) (quotation omitted); see also Schroeder v. Jesco, Inc., 296 Minn. 447, 452, 209 N.W.2d 414, 418 (1973) (“Many cases have held or recognized that the assumption-of-risk defense was a question for the jury where the defendant's negligent conduct occurred after the plaintiff assumed the risk.”); Rausch v. Julius B. Nelson & Sons, Inc., 276 Minn. 12, 21, 149 N.W.2d 1, 7 (1967) (“We have quite uniformly applied the rule that whether a person assumed the risk of a given situation is a question for the jury unless the evidence is conclusive.”). “Only where the facts are undisputed and reasonable [persons] can draw but one conclusion does the issue of assumption of the risk become a question of law.” Schroeder, 296 Minn. at 451, 209 N.W.2d at 417.

“To recover for a claim of negligence, a plaintiff must prove (1) the existence of a duty of care, (2) a breach of that duty, (3) an injury, and (4) that the breach of the duty of care was a proximate cause of the injury.” Domagala v. Rolland, 805 N.W.2d 14, 22 (Minn.2011). “Before a court considers assumption of risk, it should first determine whether the defendant owed a duty to the plaintiff.” Baber v. Dill, 531 N.W.2d 493, 495 (Minn.1995).

Duty of Care

The district court concluded that “the doctrine of primary assumption of risk applies to the direct cause of the accident in this case and the doctrine is a complete bar to recovery.” Noting that primary assumption of risk is “where a plaintiff knowingly and voluntarily encounters a hazard” and that “primary assumption of the risk is not a common doctrine utilized by Minnesota courts to dispose of negligence claims on summary judgment and is normally confined to activities such as sporting events which, by their very nature, contain incidental risks of injury,” the court “conclude[d] that removing a stuck farm vehicle from a field by a farmer who has spent his whole life engaging in farm activity is another such instance where primary assumption of risk is applicable.” Although the court did not analyze whether Crystal Valley owed a duty to Kurt Eischen and, if so, the breadth of the duty, it suggested the existence of a duty by stating that Eischens “have not provided substantial evidence regarding [Crystal Valley] falling short of its use of reasonable care other than the general averment that the chain used in the accident was not sufficient and the employees should have been more properly trained to deal with the problem.” (Emphasis added.)

Eischens allege in their complaint that Crystal Valley owed Kurt Eischen a duty of care in its training and supervision of its employees and its provision of chains for use in freeing the sprayer that was stuck in the field. In their brief, Eischens state that “[i]n this case, it is undisputed that [Crystal Valley] owed [ ] Kurt Eischen a duty of reasonable care.” (Emphasis added.) In opposition to summary judgment, Eischens submitted an affidavit of their agricultural-safety expert, who opined that Crystal Valley should have trained its employees to take charge of the crew and equipment involved in freeing the stuck sprayer; Crystal Valley should have provided its employees information about the towing capacity of chains it supplied to its employees; Crystal Valley should have taught its employees not to use “steel chains or other metal tow devices in...