Ray v. Downes Case Brief

[¶ 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, Wieezorek 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 Wieezorek, to harvest his soybeans and com. Wieezorek 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 com. 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 track and Ray would shove the auger underneath the trailer while the track 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 track 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 Wieezorek (under respondeat superior principles). Ray also alleged that Downes had maintained an unsafe workplace because the noise from the grain bin dryers prevented \*898Waldner 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(e): “[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, ¶ 10, 553 N.W.2d 246, 249. We will affirm the grant of súmmary judgment “only when the legal questions have been correctly decided arid there is no genuine issue of material fact.” Goepfert v. Filler, 1997 SD 56, ¶ 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, ¶ 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, ¶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 ¶ 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. Soever 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, ¶ 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 \*899reasonable 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 “Reasonable 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 1111, 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 ¶ 8, 563 N.W.2d 140,143. However this intrinsic risk is not unlimited. Certainly, Ray put himself in harm’s way by standing in a position to be run over. He frankly admitted as much. Nonetheless, he did not consent to reheve the driver of his subsequent duty to act with reasonable care. In the words of Prosser, “This is a distinction which has baffled a great many law students, some judges, and unhappily a few very learned legal writers.” Prosser & Keeton, The Law of Torts § 68, at 485.

It is here that there is the greatest misapprehension and confusion as to assumption of risk, and its most frequent misapplication. It is not true that in any case where the plaintiff voluntarily encounters a known danger he necessarily consents to any future negligence of the defendant. A pedestrian who walks across the street in the middle of a block, through a stream of traffic traveling at excessive speed, cannot by any stretch of the imagination be found to consent that the drivers shall not use care to watch for him and avoid running him down. On the contrary, he is insisting that’ they shall. This is contributory negligence pure and simple; it is not assumption of the risk. And if A leaves an automobile stopped at night on the traveled portion of the highway, and his passenger remains sitting in it, it can readily be found that there is consent to the prior negligence of A, whose control over the risk has terminated, but not to the subsequent neg\*900ligence of B, who thereafter runs into the car from the rear.

Id.

[¶ 14] Looking at the evidence in a light most favorable to Ray, as we must when reviewing summary judgments, Ray and Waldner had agreed upon certain “signals.” According to Ray, Waldner so disregarded their understanding that he did not even realize he had run over Ray until Downes intervened. Nothing in the record even suggests that Ray anticipated Waldner would disregard his signals when moving the truck. Ray’s awareness of danger was not consent to relieve Waldner of his duty of care. Not every acceptance of known danger may reasonably be interpreted as evidence of such consent. Prosser & Keeton, supra at 490. “[A]lthough one may assume the risk of the negligence of another if he is fully informed of such negligence, one is not, under the doctrine of assumption of risk, bound to anticipate the negligent conduct of others.” Garcia v. City of South Tucson, 131 Ariz. 315, 640 P.2d 1117, 1121 (Ct.App.1981) rev’d on other grounds, Garcia v. City of South Tucson, 135 Ariz. 604, 663 P.2d 596 (Ct.App.1983).

[¶ 15] Consistent with Westover, this is not a case where a “party may have actual appreciation of a risk or a party can be deemed to appreciate a risk if it is the type of risk that no adult of average intelligence can deny.” 488 N.W.2d at 901. In both cases the plaintiff admittedly was familiar with the dangers of the workplace but there remained a question of fact as to whether that familiarity extended to dangers which were not in the norm and were unexpected.

[¶ 16] As Waldner fails to convince us the record supports his contention on the first factor of assumption of the risk, this failure to establish any one of the above three criteria is “fatal to this defense” as a basis for upholding a summary judgment. Westover, supra. As such we need not review the second and third factors.

[¶ 17] We affirm as to the employer Downes and reverse and remand for trial as to Waldner and his employer, Wieczorek. In so doing, our disposition preserves the opportunity for Waldner and Wieczorek to pursue traditional tort defenses such as assumption of the risk at trial.