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.
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."
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
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."
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.
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.
"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.
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.
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., 274 Minn. 495, 144 N.W.2d 555 (1966):
W.T. Rawleigh, 144 N.W.2d at 557 (footnote omitted and emphasis added);
The Minnesota Supreme Court has characterized Section 343A's "unless" clause as "a crucial qualifier to the general rule." Sutherland v. Barton, et al., 570 N.W.2d 1, 7 (Minn.1997) (citing Adee v. Evanson, 281 N.W.2d 177, 179 (Minn.1979), and W.T. Rawleigh, 144 N.W.2d at 557-58). However, liability under this clause does not attach "where the anticipated harm involves dangers so obvious that no warning is necessary . . . ." Baber, 531 N.W.2d at 496 (emphasis added). As acknowledged by the supreme court in Baber, "The difference between open and obvious dangerous activities and conditions for which the possessor should anticipate harm and those activities and conditions for which the possessor should not anticipate harm because they are so open and obvious is a fine one, but one that we choose to make." Id.
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, 2002 WL 64455 at *7 (D.Minn. Jan.16, 2002). Mr. Reimer argues that evidence in the record refutes the district court's finding of obviousness. First, he points to his own testimony that the nipple's corrosion was not of a type or magnitude that would have alerted him to the possibility of the nipple breaking off. And second, he relies on an expert affidavit which opined that the corrosion would have been much worse on the less visible underside of the nipple than the top and sides.
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, 636 N.W.2d at 321 (citing Munoz v. Applebaum's Food Market, Inc., 293 Minn. 433, 196 N.W.2d 921, 922 (1972)). Given Mr. Reimer's testimony that he saw corrosion on the nipple, and his experience and expertise in the field of boiler repair, we agree that the record irrefutably establishes that the condition and risk were objectively obvious. See Restatement (Second) of Torts § 343A, cmt. b (1965) (explaining that obviousness determination is made from the perspective of a reasonable person "in the position of the visitor, exercising ordinary perception, intelligence and judgment").
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, 636 N.W.2d at 322 (requiring consideration of "unless" clause applicability even where known or obvious condition found as a matter of law). Viewing the evidence in the light most favorable to Mr. Reimer, this court must accept the following as true: (1) in the course of examining the boiler, Mr. Reimer saw a nipple with some corrosion on it but no more than he had seen on many occasions on similar boilers; (2) the corrosion on the nipple was more severe on the underside of the nipple, close to the bottom of the boiler, than on the top and sides where Mr. Reimer was more likely to focus given the task he was performing; (3) conducting an ultrasound does not entail contact with the interior of the boiler or with the nipples or bungholes on the boiler; (3) Mr. Nelson was aware that the nipple was corroded because only hours earlier a Johnson Controls employee refused his request to tighten the nipple
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. 570 N.W.2d 1 (Minn.1997). In Sutherland, an independent contractor-electrician was killed while using a metal tape measure near exposed live buss bars. Id. at 4. It was undisputed that Sutherland "had worked near live buss bars before and in fact had warned others of the danger inherent in such a task." Id. at 7. Moreover, "[o]n the day of the accident, his supervisor specifically pointed out the live buss bars to Sutherland." Id. The supreme court affirmed the district court's grant of summary judgment to the employer. See id. at 7-8. The court found that the danger posed by the live buss bars was open and obvious, that the risk could have been avoided by turning off the electricity, and that this was not a case where the employer should have anticipated that the plaintiff would fail to appreciate the risk involved in using a metal tape measure near live buss bars. See id. at 7.
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, 570 N.W.2d at 7 (quoting Restatement (Second) of Torts § 343 cmt. f (1965)); see also W.T. Rawleigh, 144 N.W.2d at 557-58 (characterizing comment f of Section 343A as "well summariz[ing]" the court's view). We see a significant qualitative difference between the risk posed by using a metal tape measure near live buss bars, as in Sutherland, and conducting what is expected to be a noninvasive diagnostic procedure on a closed boiler as in the case at bar. Here, a jury could reasonably find that the apparent risk did not necessarily warrant the alternative-turning off the boiler. See Conover, 313 N.W.2d at 402 (finding that a jury could properly conclude that routine inspection procedures of independent contractors would not have revealed the particular condition that caused harm and would not be reasonably expected to do so). We also note an important factual distinction between Sutherland and the instant case. It was undisputed in Sutherland that the plaintiff was explicitly warned about the dangerous condition that
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, 599 N.W.2d 127, 130 (Minn.1999); Erickson v. Curtis Inv. Co., 447 N.W.2d 165, 168-69 (Minn.1989).
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, 599 N.W.2d at 131 ("In order to find that a special relationship exists, it must be assumed that the harm to be prevented by the defendant is one that `[the defendant] is in a position to protect against and should be expected to protect against.'") (citation omitted).
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, 2002 WL 64455 at *7.
The doctrine requires actual knowledge of a known risk. Wegscheider, 289 N.W.2d at 170; Coenen v. Buckman Bldg. Corp., 278 Minn. 193, 153 N.W.2d 329, 338 (1967) ("[W]here it merely appears that [the plaintiff] should or could have discovered the danger, the defense is contributory negligence and not assumption of the risk."), quoted in Beckman v. V.J.M. Enters., Inc., 269 N.W.2d 37, 39 (Minn.1978); Snilsberg v. Lake Washington Club, 614 N.W.2d 738, 746 (Minn.Ct.App.2000) ("Application of the doctrine requires actual, rather than constructive, knowledge.") (citing Parr v. Hamnes, 303 Minn. 333, 228 N.W.2d 234, 237-38 (1975)). Primary assumption
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, 299 Minn. 39, 216 N.W.2d 124 (1974), the Minnesota Supreme Court discussed the doctrine of assumption of risk:
Id., at 127 (footnote omitted);
"Minnesota courts rarely apply primary assumption of the risk, and have found that its application is only appropriate under limited circumstances." Schneider v. Erickson, 654 N.W.2d 144, 149 (Minn.Ct. App.2002); accord Springrose v. Willmore, 292 Minn. 23, 192 N.W.2d 826, 827 (1971) ("The classes of cases involving an implied primary assumption of risk are not many . . . ."); Rusciano v. State Farm Mutual Auto. Ins. Co., 445 N.W.2d 271, 273 (Minn. Ct.App.1989) ("Application of the primary assumption of risk doctrine is uncommon.").
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"). 284 N.W.2d at 349-53. After rejecting a special "fireman's rule," the Armstrong court applied the primary assumption of risk analysis. Id. The court began with a broad characterization of the relationship-risk connection but then went on to a more particularized analysis:
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., 313 N.W.2d 602, 605 (Minn. 1981) ("[E]ach situation encountered may involve some risks which are anticipated and assumed and some which are unanticipated and therefore unassumed."); Rieger v. Zackoski, 321 N.W.2d 16, 23 (Minn. 1982) (rejecting defendant's attempt to characterize risk generally as leaping over racetrack fence and instead stating that particular risk was leaping fence "after the races had concluded for the day" when such conduct "may well have been presumed to be acceptable"). This is consistent with the Minnesota courts' cautionary language regarding the limited applicability of the doctrine. See, e.g., Schneider, 654 N.W.2d at 149; Rusciano, 445 N.W.2d at 273; Goodwin, 422 N.W.2d at 50.
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, 136 F.3d at 586 (reversing summary judgment to defendant and finding significant to appreciation of risk element that plaintiff "had placed her hands and feet into this gap before without incident."); Piotrowski v. Southworth Prods. Corp., 15 F.3d 748, 753 (8th Cir.1994) (holding that plaintiff who was injured in fall from table "did not have actual knowledge of a known risk and he did not make the choice to chance the risk rather than avoid it" where "[he] and other employees had similarly stood or stomped on the lift table without incident for seven months."); Johnson v. S. Minn. Mach. Sales, Inc., 442 N.W.2d 843, 848 (Minn.Ct.App.1989) (noting as factor in appreciation of risk analysis that plaintiff saw his shop teacher and foreman use saw without harm).
Granting Mr. Reimer the benefit of all favorable inferences from the record, a jury could reasonably conclude that based
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, 180 F.3d at 939 (finding plaintiff's extensive experience a significant factor in favor of applying primary assumption of the risk where harm could have been easily avoided). Moreover, Mr. Reimer concedes that he saw some corrosion on the nipple and lower left rear of the boiler prior to starting the ultrasound procedure and that it was his choice as to how to conduct the test. That said, material fact disputes remain as to whether Mr. Reimer had actual knowledge of the risk. See Wegscheider, 289 N.W.2d at 170; Beckman, 269 N.W.2d at 39. And, as reflected in our discussion of duty, there is also a genuine issue of material fact as to whether Mr. Reimer appreciated that risk. On this record it is not "clear [that] a reasonable person in [Mr. Reimer's] position must have understood the danger." Andren, 465 N.W.2d at 106. Accordingly, we cannot say as a matter of law that Mr. Reimer implicitly or explicitly manifested an agreement to assume the risk of his actions in this instance. See Coenen, 153 N.W.2d at 338 ("Knowledge of the particular risk or danger and an appreciation of the magnitude thereof are independent and essential elements of the doctrine of assumption of risk."), quoted in Wegscheider, 289 N.W.2d at 170. See also Griffiths, 313 N.W.2d at 605 (affirming trial court finding that although police generally assume the risks inherent in their duties, the plaintiff-policeman could not have anticipated and therefore did not assume "the risk of being struck by a downed utility pole which was jerked into the air when a passing automobile snagged a guide wire attached to the pole.").
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, 531 N.W.2d at 495. In our view, this comment by Minnesota's highest court underscores that, where primary assumption of risk is at issue, only those cases with overwhelming and conclusive records lend themselves to summary judgment resolution. This is not such a case.
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.