Schroeder v. Jesco, Inc.

• Decision Date: 06 July 1973
• Docket Number: No. 43801,43801
• Citation: 296 Minn. 447,209 N.W.2d 414
• Parties: Casper H. SCHROEDER, Appellant, International Insurance Company, Appellant, v. JESCO, INC., defendant and third-party plaintiff, Respondent, v. First Construction Company, third-party defendant, Respondent.
• Court: Minnesota Supreme Court

Page 414

209 N.W.2d 414

296 Minn. 447

Casper H. SCHROEDER, Appellant, International Insurance Company, Appellant, v. JESCO, INC., defendant and third-party plaintiff, Respondent, v. First Construction Company, third-party defendant,

Respondent.

No. 43801.

Supreme Court of Minnesota.

July 6, 1973.

Syllabus by the Court

1. Where the jury could reasonably find that plaintiff, who was ascending a stairway under construction, knew and appreciated the risk of falling objects and also knew of an alternative, safer route, the question of whether plaintiff assumed the risk of falling objects was properly submitted to the jury.

2. Plaintiff was not prejudiced by the trial court's allowing defendant to amend its answer to include the defense of assumption of risk on the day the trial commenced.

Sachs, Latz & Kirshbaum, and Mitchel I. Kirshbaum, Minneapolis, for Schroeder.

Mordaunt, Walstad, Cousineau & McGuire, and Robert J. McGuire, Minneapolis, for International Ins. Co.

Meagher, Geer, Markham, Anderson, Adamson, Flaskamp & Brennan, O. C. Adamson II, and William D. Flaskamp, Minneapolis, for Jesco, Inc.

Hoppe & Healy and Robert L. Healy, Minneapolis, for First Construction Co.

Heard before KNUTSON, C.J., and PETERSON, TODD, and MacLAUGHLIN, JJ.

MacLAUGHLIN, Justice.

This is an action to recover damages sustained by plaintiff, Casper H. Schroeder, as a result of an industrial accident on March 26, 1969, in the construction of a building in the Metro Office Park project in Bloomington, Minnesota. A jury found that defendant, Jesco, Inc., was negligent and that its negligence was the sole cause of the accident. However, the jury also found that plaintiff assumed the risk of a known hazard, thereby precluding any recovery by plaintiff. ¹ Plaintiff appeals from an order denying his motion for judgment n.o.v. or for a new trial. We affirm.

On the day of the accident plaintiff, an electrician, was employed by Lee Electric Company, an electrical subcontractor on the Metro Office Park construction project. Defendant, Jesco, Inc., was the masonry subcontractor. The Metro Office Park project consisted of several identical office buildings, some of which had been completed prior to the accident.

On the date of the accident, plaintiff had just returned after several weeks' absence from work due to an injury to his toe. On that day, Jesco, Inc., was constructing a stairway between the first and second floors of the unfinished building where the accident occurred. Each of six buildings contained two sets of identical concrete stairways located 40 feet apart at opposite sides of the building. Starting at the basement level, the stairways rose a half story to a landing, then another half story to the first floor, then another half story to a landing, and finally another half story to the second floor. The stairways were constructed a half story at a time. First, a wooden form for the landing was built, and then a concrete landing was poured. Thereafter, the stairway connecting the floor to the landing and the stairway connecting the landing to the floor above were poured.

There is considerable evidence that at the time of the accident the so-called right-hand stairway in the building was completed. However, the left-hand stairway, where the accident occurred, was completed only from the basement to the first-floor level. Defendant's crew was constructing the wooden form for the concrete landing between the first and second floors. To accomplish this, they placed a ladder on the completed landing between the basement and the first floor and used it to support a plank stretching from the ladder to the first floor. Defendant's employees used the plank as a place to stand and sit while constructing the wooden form for the landing. Eight-foot-long lumber beams were used in the construction of the wooden form. One of defendant's employees placed such a beam on the plank and another employee came into contact with it, causing the beam to fall on plaintiff who was walking up the stairway below.

Plaintiff testified that at the time he was struck by the beam he was carrying an armload of electrical conduit from the basement to the second-floor level where he was working. He planned to use the left-hand stairway to get to the first floor, and then, because the stairway was not completed, he intended to use a ladder to get to the second floor. Previously that day plaintiff had completed one such trip from the basement to the second floor while carrying electrical conduit, and he was aware of the work being done by defendant's employees in the stairwell. Plaintiff was struck just as he began his ascent up the second half of the stairway from the basement to the first floor. In order to use the stairway where the accident occurred, plaintiff had to go around defendant's ladder which was on the platform and also had to make his way around defendant's tools, lumber, and other materials which were in the stairway for use in the construction of the form for the landing.

There were no signs warning employees not to use the stairway, and no barricades or other attempts to block the stairway. However, two of defendant's employees testified that each of them had warned every person attempting to use the left-hand stairway not to do so and had suggested that they use the completed right-hand stairway. Although neither employee could recall plaintiff specifically, one of them testified he had told someone carrying electrical conduit earlier that day to use the other stairway but that the person had gone up and down the left-hand stairway in spite of the warning. The same employee testified that barricades were impractical because of the large amount of materials that had to be brought into the area of the stairway construction.

Plaintiff testified that he was aware that on construction jobs items such as lumber are sometimes dropped from one floor to another. He also testified that he had received no warning regarding the use of the left-hand stairway and that he did not think the right-hand stairway had been completed on the day of the accident.

1. Plaintiff argues that, as a matter of law, he cannot be held to have assumed the risk of the injury. The doctrine of assumption of the risk applies to one who voluntarily exposes himself to a known and appreciated risk arising from another's negligence. Assumption of the risk must be free and voluntary, and there must be some reasonable alternative left to plaintiff by defendant. Only where the facts are undisputed and reasonable men can draw but one conclusion does the issue of assumption of the risk become a question of law.

Plaintiff argues that assumption of the risk cannot, as a matter of law, be present in this case because (a) plaintiff was unaware of the specific risk encountered, and (b) plaintiff was unaware of an alternative method of avoiding the risk.

Plaintiff concedes that if he had been injured by making contact with defendant's ladder or plank, around which he had to maneuver, or had tripped over some of the equipment placed on the midway landing of the stairway he was ascending, the question of assumption of the risk would properly be for the jury. Plaintiff claims, however, that assumption of the risk cannot arise where the plaintiff is not aware of the specific risk being encountered and that plaintiff could not have known that this particular lumber beam would fall upon him.

The principal Minnesota case on which plaintiff relies is Guile v. Greenberg, 192 Minn. 548, 257 N.W. 649 (1934). In that case, the plaintiff was riding on the outside of a moving truck when it collided with another car. We held as a matter of law that the plaintiff did not assume the risk of a collision caused by the negligence of the driver of another car. We pointed out, however, that the plaintiff assumed risks naturally incident to his exposed position, such as the risk of being thrown from the truck upon its starting, stopping, turning a corner, or hitting a bump in the road.

We cannot agree with plaintiff's argument or his reliance on Guile. It is inconceivable that reasonable men would have to conclude that plaintiff, an experienced construction worker who knew that lumber would sometimes be...