Ray v. Downes

• Decision Date: 22 April 1998
• Docket Number: No. 20100,20100
• Citation: 576 N.W.2d 896,1998 SD 40
• Parties: Donald RAY and Levena Ray, Plaintiffs and Appellants, v. Harold DOWNES, John Wieczorek and Phillip J. Waldner, Defendants and Appellees.
• Court: South Dakota Supreme Court

Page 896

576 N.W.2d 896

1998 SD 40

Donald RAY and Levena Ray, Plaintiffs and Appellants, v. Harold DOWNES, John Wieczorek and Phillip J. Waldner Defendants and Appellees.

No. 20100.

Supreme Court of South Dakota.

Argued Jan. 14, 1998.

Decided April 22, 1998.

Lee C. "Kit" McCahren of Olinger, Lovald, Robbennolt & McCahren, Pierre, for plaintiffs and appellants.

Larry M. VonWald of Truhe, Beardsley, Jensen, Helmers & VonWald, Rapid City, for appellee Harold Downes.

Gene R. Bushnell of Costello, Porter, Hill, Heisterkamp & Bushnell, Rapid City, for appellees John Wieczorek & Phillip J. Waldner.

GILBERTSON, Justice.

¶1 On October 16, 1995 Donald Ray (Ray) was injured in a farm accident when a semi-tractor/trailer rolled over his legs while he was attempting to position an auger under a trailer to unload crops into a large storage bin. Ray then brought a negligence action against his employer, the owner of the farm. He also sued the custom harvester hired by his employer and the custom harvester's driver. Ray's wife, Levena Ray, joined in the suit by submitting a loss of consortium claim. The trial court granted defendants' motion for summary judgment after finding, as a matter of law, that Ray had assumed the risk of his injuries. Ray appeals. We affirm as to his employer, Downes, and reverse as to the custom harvester, Wieczorek and his employee, Waldner.

FACTS AND PROCEDURE

¶2 Harold Downes (Downes), the owner of a farm near Pierre, South Dakota, hired Ray in May of 1995 as a farm laborer. Ray was 39 years old at the time and had many years of farm experience. As the fall 1995 harvest approached, Downes hired a custom harvester, John Wieczorek, to harvest his soybeans and corn. Wieczorek then assigned one of his employees to combine the fields and another, Phillip Waldner (Waldner), to drive a large 18-wheeled semi-tractor/trailer (semi) from the fields to the storage bins on Downes' farm and unload the crops into the bins. Wieczorek's two employees spent approximately one week harvesting soybeans. Ray was not directed by Downes to assist the harvesters but observed Waldner unloading the crops from the semi into the bins during the previous day's harvesting. During this process Waldner would drive the semi close to the bin, get out of the semi and position a swing-type auger directly underneath the openings in the bottom of the trailer. The crops would then fall through the bottom doors of the trailer into the auger to be transported into the bins.

¶3 On October 16, 1995, it became apparent that the ground near one of the bins was too high to allow sufficient clearance to get the auger under the semi trailer. Downes asked Ray to use a front-end loader to scrape smooth the ground near one of the bins so that the auger could be positioned. Downes did not direct Ray to assist Waldner in the actual unloading of the corn. After Ray scraped the ground, he volunteered to help Waldner position the auger under the trailer. Ray and Waldner agreed that Waldner would drive the truck and Ray would shove the auger underneath the trailer while the truck was moving. Ray would use hand signals and then "holler" for Waldner to stop when the auger was in place.

¶4 As Waldner was entering the truck Ray positioned himself three to four feet in front of the protruding rear set of wheels on the trailer. After the auger was in position Ray "hollered" for Waldner to stop. Either Ray did not signal or Waldner did not see Ray's signals or hear Ray "holler" and the wheels of the trailer caught Ray's left foot and ran over his left leg. ¹ Downes was nearby and was alerted to the scene when he heard Ray urgently scream for Waldner to back up. Downes found Ray pinned under the trailer's wheels, got Waldner's attention, who then drove the trailer off of Ray.

¶5 Ray brought a personal injury suit against Waldner and Waldner's employer Wieczorek (under respondeat superior principles). Ray also alleged that Downes had maintained an unsafe workplace because the noise from the grain bin dryers prevented Waldner from hearing Ray's shouting to stop. Ray's wife, Levena, also filed a claim for loss of consortium. Downes brought a cross-claim against Waldner and Wieczorek. The circuit court granted summary judgment in favor of all defendants on the basis that Ray had assumed the risk of his injury based on his own admissions. The Rays appeal.

STANDARD OF REVIEW

¶6 We consider the appropriateness of summary judgment by looking to SDCL 15-6-56(c): "[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Id. (reproduced in part); Ward v. Lange, 1996 SD 113, p 10, 553 N.W.2d 246, 249. We will affirm the grant of summary judgment "only when the legal questions have been correctly decided and there is no genuine issue of material fact." Goepfert v. Filler, 1997 SD 56, p 4, 563 N.W.2d 140, 142 (citations omitted). Since the burden of proof rests upon the moving party, the "evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party." Id. (quoting Rumpza v. Larsen, 1996 SD 87, p 9, 551 N.W.2d 810, 812 (citations omitted)). We will affirm the circuit court if there exists any legal basis to support its ruling. Petersen v. Dacy, 1996 SD 72, p 5, 550 N.W.2d 91, 92 (citations omitted).

ANALYSIS AND DECISION

¶7 1. Whether summary judgment in favor of Downes was proper.

¶8 Ray's complaint contains an allegation that Downes was "negligent in his failure to provide a proper and safe work place for his employees." Ray has appealed the grant of summary judgment in favor of Downes. Ray, however, has failed to brief this issue and therefore we need not consider it because "[a]n assignment of error not briefed and argued is deemed abandoned." State v. Macy, 403 N.W.2d 743, 745 (S.D.1987) (citing Graham v. State, 328 N.W.2d 254 (S.D.1982)).

¶9 2. Whether summary judgment in favor of Waldner and Wieczorek was proper.

¶10 Although assumption of the risk is generally a jury issue, this Court has occasionally held summary judgment appropriate in those rare cases "where the essential elements are conclusively established that the plaintiff may be charged with assumption of the risk as a matter of law." Goepfert, 1997 SD 56 at p 7, 563 N.W.2d at 142 (citation omitted). We examine the affirmative defense of assumption of the risk with the facts viewed in a light most favorable to Ray. This question is reviewed under the de novo standard. Boever v. South Dakota Bd. of Accountancy, 526 N.W.2d 747, 749 (S.D.1995).

¶11 Assumption of the risk is composed of three elements. It must be shown that Ray: (1) had actual or constructive knowledge of the risk; (2) appreciated its character; and (3) voluntarily accepted the risk, with the time, knowledge, and experience to make an intelligent choice. Mack v. Kranz Farms, Inc., 1996 SD 63, p 9, 548 N.W.2d 812, 814 (citation omitted). We have held that the failure to establish any of these elements will preclude summary judgment. Westover v. East River Elec. Power Coop., Inc., 488 N.W.2d 892 (S.D.1992). At the pretrial hearing which addressed the motion for summary judgment, the circuit court held:

[I]t's this court's reluctant view that this is one of those rare cases where [Ray's] own testimony establishes as a matter of law assumption of the risk. I don't believe there can be any reasonable dispute that when the deposition and the depositions of the other people are read together, even with the supplementary affidavit that was just filed by [Ray], I don't believe that reasonable people can disagree that the first two elements of the assumption of the risk doctrine were clearly satisfied and [Ray's] testimony ... in his deposition clearly establishes the voluntariness and the availability of reasonable alternatives.

¶12 a. Actual or Constructive Knowledge of the Risk

¶13 Generally, both knowledge and appreciation of danger are jury questions. However, "[W]here it is clear that any person in [plaintiff's] position must have understood the danger, the issue may be decided by the court." W. Page Keeton Et Al., Prosser and Keeton on the Law of Torts § 68, at 481 (5thed 1984). Waldner argues that "[r]easonable men could not differ that [Ray] had actual knowledge of the risk" of being run over by the rear wheels. Mack, 1996 SD 63 at p 11, 548 N.W.2d at 814. Waldner cites Ray's deposition testimony to support his argument that Ray had actual knowledge of the risk of danger involved at the time he positioned himself near the rear wheels in his attempt to push the auger underneath the moving semi:

Q: You knew that the wheels on the rear of the semi-trailer extended out beyond the sides of the trailer?

A: I knew they extended out, yes.

Q: You could see them because they were a short distance behind you, weren't they?

A: Yes.

Q: In fact, they would have been less than three feet behind you?

A: Three or four, yes.

Q: And you knew that as the truck was being driven forward, that those wheels were getting closer and closer to you?

A: Yes.

Q: And you knew that if you didn't move, that the wheels on that trailer would drive over your leg?

A: Yes, I knew it. But if he would have stopped when I motioned for him to stop, he wouldn't have got me.

Q: But you knew you were in a position of danger?

A: Yes. There is danger anywhere on the farm.

Q: And you voluntarily put yourself in that position of danger, didn't you?

A: Yes, I guess I did.

Q: And you knew that you were taking the risk of injuring your legs or even your hip, as ultimately happened?

A: Yes.

(Emphasis added). "Risk is intrinsic to some acts." Goepfert, 1997 SD 56 at p 8, 563 N.W.2d 140, 143. However this intrinsic risk is not unlimited. Certainly, Ray put...