Reimer v. City of Crookston, 02-1554.

• Decision Date: 10 April 2003
• Docket Number: No. 02-1554.,02-1554.
• Citation: 326 F.3d 957
• Parties: 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.
• Court: U.S. Court of Appeals — Eighth Circuit

326 F.3d 957

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, 426 N.W.2d 425, 427 (Minn. 1988).

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., 310 F.3d 1092, 1095 (8th Cir.2002). "We review a district court's grant of summary judgment de novo, giving the nonmoving party the most favorable reading of the record as well as the benefit of [all] reasonable inferences that arise from the record." Gentry v. Georgia-Pacific Corp., 250 F.3d 646, 649 (8th Cir.2001). In a diversity case, we also review de novo the district court's interpretation and application of state law. Viking Supply, 310 F.3d at 1096. In this diversity matter, Minnesota law guides our analysis of the substantive claims. See Bennett v. Hidden Valley Golf and Ski, Inc., 318 F.3d 868, 874 (8th Cir.2003) ("In a diversity case ... we must follow state law as announced by the highest court in the state.") (citing Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)).

Essential to any negligence claim is the breach of a duty of care owed to the plaintiff. See Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn.1995) (listing elements of negligence claim). The district court held as a matter of law that none of the defendants owed a duty of care to Mr. Reimer, and, alternatively, that Mr. Reimer assumed the risk of his injury. We will discuss each of these holdings in turn.

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., 544 N.W.2d 302, 307 (Minn.1996); Gabrielson v. Warnemunde, 443 N.W.2d 540, 543 n. 1 (Minn. 1989). However, where the existence of a duty turns upon contradicted facts, those facts must be submitted to a jury for resolution prior to the court's legal conclusion on the issue. Id.; Johnson v. Urie, 405 N.W.2d 887, 891 n. 5 (Minn. 1987).

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., 313 N.W.2d 397, 401 (Minn.1981). That duty extends to employees of independent contractors hired by the landowner. Id. Although the School District owned the pool building and the boiler, a written agreement with the City supports a finding, for summary judgment purposes, that the parties jointly operated the facilities and jointly shared the indices and liabilities of ownership....