Craig D. Navis, et al., Appellants, vs. Ronald Wacker, Respondent.

Craig D. Navis, et al., Appellants, vs. Ronald Wacker, Respondent. A05-447, Court of Appeals Unpublished, October 25, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-447

 

Craig D. Navis, et al.,

Appellants,

 

vs.

 

Ronald Wacker,

Respondent.

 

Filed ­­­October 25, 2005

Affirmed

Dietzen, Judge

 

Dakota County District Court

File No. C7-04-7114

 

Elliot L. Olsen, Pritzker, Ruohonen & Associates, P.A., 2950 Radisson Plaza VII, 45 South Seventh Street, Minneapolis, MN 55402 (for appellants)

 

Thomas S. McEachron, Votel, Anderson, McEachron & Godfrey, 444 Cedar Street, Suite 1250, St. Paul, MN 55101 (for respondent)

 

            Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            Appellants challenge the district court's grant of summary judgment in this negligence action, arguing that respondent owed a duty to warn appellant Craig Navis (appellant) of and protect him against the danger of falling off respondent's roof.  Appellants also challenge the district court's conclusion that appellant assumed the risk of falling when he volunteered to help respondent.  Because we conclude that respondent did not owe a duty to warn or protect appellant against the risk of falling, and he assumed the risk when he volunteered for the project, we affirm.

FACTS

Appellants Craig and Nancy Navis (appellants) and respondent Ronald Wacker are neighbors.  Craig Navis (appellant) volunteered to assist respondent with removing old roofing and installing new roofing on respondent's home.  Neither party is a professional roofer.  Respondent is a systems application engineer for Wells Fargo.  Respondent had read a book on roofing and previously repaired roofs, helping three or four friends and relatives re-roof their homes and working on three to four roofs as a volunteer for Habitant for Humanity.  The experience of appellant with roofing work was limited to helping his father re-roof their house when he was a child.  He had been on his own roof, which contained asphalt shingles similar to that of respondent's, on previous occasions to periodically inspect it, remove snow, and fix a leak. 

Appellant assisted respondent with the roofing project over a period of three consecutive days.  The testimony of what occurred is largely undisputed.  During the first two days, he worked several hours each day on respondent's roof, distributing shingles, trimming the edges of shingles, and retrieving supplies for the project.  Respondent told him to "be careful" on each of the first two days.  Respondent did not take any additional safety measures or install safety devices to help prevent himself or others from falling.  The district court found that appellants admitted that the danger of falling off the roof was open and obvious. 

On the third day, respondent directed appellant to assist another volunteer in removing shingles from the roof.  Respondent told appellant to use a pitchfork-shaped device known as a garden fork to remove the shingles.  Respondent had engaged in removal work the previous two days with a garden fork, during which time his fork would occasionally entangle with the shingles, but this entanglement never caused respondent to lose his balance.  Appellant did not ask for, nor did respondent give, instructions on how to remove the shingles.  Appellant felt perfectly capable of removing the shingles based on his observations of another volunteer, and respondent assumed that appellant would know how to do the work from "observing other people the previous days."  Respondent told appellant "[j]ust to be careful" before he began that day.  Shortly after commencing the shingle removal, appellant fell from the roof, sustaining physical injuries.  It is unclear what caused the fall, but appellants reason that he became distracted and the debris attached to the tips of the garden fork contributed to his imbalance and subsequent fall.  

Appellants sued, alleging that respondent breached his duty of care in failing to warn appellant of the dangers specific to removing shingles from the roof and in failing to provide adequate safety measures to protect appellant against a fall.  Respondent moved for summary judgment, arguing that he had no duty to protect appellant from falling from the roof because that danger was open and obvious; and that appellant assumed the risk of injury when he volunteered to assist with the re-roofing project.  The district court granted respondent's motion for summary judgment, concluding that respondent owed no duty to warn appellant of the danger of falling, and in any event, appellant assumed the risk by volunteering for the roofing work.  This appeal follows.

D E C I S I O N

Summary judgment may be granted if the pleadings, depositions, interrogatory answers, admissions, and affidavits reveal that there is no genuine issue of material fact and that a party is entitled to judgment as a matter of law.  Minn. R. Civ. P. 56.03.  In a summary-judgment proceeding, appellate courts determine if there are any genuine issues of material fact and if the district court erred in its application of the law.  N. States Power Co. v. Minn. Metro. Council, 684 N.W.2d 485, 491 (Minn. 2004).  "The party opposing summary judgment may not establish genuine issues of material fact by relying upon unverified and conclusory allegations, or postulated evidence that might be developed at trial, or metaphysical doubt about the facts."  Dyrdal v. Golden Nuggets, Inc., 689 N.W.2d 779, 783 (Minn. 2004). 

            The Minnesota Supreme Court has ruled that "[b]efore a court considers assumption of risk, it should first determine whether the defendant owed a duty to the plaintiff" and that "[i]f no duty exists there is no need to determine whether a person assumed the risk thus relieving the defendant of the duty." Baber v. Dill, 531 N.W.2d 493, 495 (Minn. 1995).  Therefore, we first determine if respondent owed appellant a duty to warn of the potential dangers involved with rooftop shingle removal.

I.

 

            Appellants contend that respondent had a duty to warn of the subtle danger of falling off what they argue is a steep roof while removing shingles; and that respondent had a legal duty to put safeguards in place to protect appellant from this dangerous condition.  Respondent counters that he had no duty to warn of the obvious dangerous condition or take additional measures to protect appellant from falling off the roof.  The crux of the issue is: what legal duty, if any, did respondent owe appellant?

            The existence of a legal duty is an issue this court reviews de novo.  Louis v. Louis, 636 N.W.2d 314, 318 (Minn. 2001).  A landowner has a duty to use reasonable care to prevent injuries to persons caused by conditions on the land that create a foreseeable risk of injury.  See id. at 31819.  A landowner's duty of care to prevent an injury can arise if: (a) a danger was not known or obvious to an entrant;[1] or, (b) despite the open and obvious nature of a danger, the possessor of land should anticipate that an entrant would suffer injury.  See Peterson v. W.T. Rawleigh Co., 274 Minn. 495, 497, 144 N.W.2d 555, 557 (1966) (quoting Restatement (Second) of Torts § 343A(1) (1965)).  We will address each potential basis in turn.

Known and Obvious Danger

           

Appellants concede that the general danger of falling off the roof was open and obvious.  Appellants also concede that there are no genuine issues of material fact as to what occurred.  Appellants instead argue that respondent owed appellant a duty because he did not fully know or appreciate the subtle danger of falling off a steep roof while removing shingles with a garden fork. 

            A landowner generally does not owe a duty to an entrant if the danger on the land is known or obvious.  Baber, 531 N.W.2d at 49596.  The rationale underlying this rule is that "no one needs notice of what he knows or reasonably may be expected to know." Id. at 496 (quotation omitted). "[T]he word ‘known' denotes not only knowledge of the existence of the condition or activity itself, but also appreciation of the danger it involves."  Louis, 636 N.W.2d at 321 (quotation omitted).  A danger is "obvious" if a reasonable person exercising ordinary perception, intelligence, and judgment would recognize the danger.  Id. "[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."  Id. (quotation omitted).

            The danger of falling off any roof, whether it is steep or not, should be obvious to a reasonable person.  Appellants overstate the subtlety of the risk by focusing on the task of shingle removal.  The laws of gravity are apparent to all, i.e., any task that requires ascending onto a rooftop involves the risk of falling.  This danger, which appellants admit was open and obvious, remained the same if the roof was steep or not; or whether appellant was engaged in shingle removal with a garden fork or any other roofing activity.  Consequently, the district court did not err in concluding that the danger of falling off respondent's roof while removing shingles was known and obvious.

Reasonable Anticipation of the Harm

 

            Appellants contend that even if the danger was known and obvious, respondent owed appellant a duty because respondent should have anticipated the fall.  Specifically, appellants argue that because respondent had engaged in similar shingle removal work in previous days, respondent should have anticipated that appellant might become distracted and fall off the roof.

            "A possessor of land is not liable to [entrants] for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness."  Rawleigh, 274 Minn. at 497, 144 N.W.2d at 557 (emphasis omitted) (quoting Restatement (Second) of Torts § 343A(1) (1965)).  "Reasonable care on the part of the possessor . . . does not ordinarily require precautions, or even warning, against dangers which are known to the visitor, or so obvious to him that he may be expected to discover them."  Restatement (Second) of Torts § 343A(1), cmt. e  (1965).  Some dangers are so obvious based on common sense and reason that courts have held as a matter of law that there is no reason for the landowner to anticipate that entrants will suffer harm, and thus no duty to warn or protect against them.  See, e.g.,Lawrence v. Hollerich, 394 N.W.2d 853, 856 (Minn. App. 1986) (affirming summary judgment in favor of landowner based on the conclusion that the dangers associated with the steepness of a hill are so obvious that no warning was required), review denied (Minn. Dec. 17, 1986).  

            Here, there is no evidence that respondent should have anticipated appellant would fall from the roof.  There was nothing unique about the risk presented, nor is there evidence that the danger was somehow concealed.  It is undisputed that respondent warned appellant several times to be careful.  On each of the two previous days, appellant distributed shingles to various parts of the roof, trimmed the edges of the shingles, and retrieved supplies for the project.  And respondent performed similar tasks on the roof without falling.  Because the danger of falling off a roof was obvious, a reasonable person in respondent's position would expect that appellant would take reasonable precautions to avoid falling.

The district court concluded that the danger of falling off the roof while removing shingles with a garden fork was open and obvious and that respondent had no reason to anticipate appellant would lose his balance and fall.  Therefore, the district court concluded that respondent had no duty to warn of the dangers intrinsic to rooftop shingle removal or to take special safety measures to prevent appellant's fall from the roof.  Based on our review of the record, the district court properly applied the law.[2] 

II.

 

Next appellants argue that appellant did not assume the risk of falling off a steep roof unprotected by slideguards or guardrails.  Because respondent owed appellant no duty, this court need not determine whether appellant assumed the risk.  Baber, 531 N.W.2d at 495 (stating that "[i]f no duty exists there is no need to determine whether a person assumed the risk").  But even if we do consider the issue, we conclude that appellant assumed the risk.

Primary assumption of the risk bars recovery in a negligence action if a person has knowledge of the risk, appreciates the risk, and has a choice to avoid the risk but voluntarily chooses to chance the risk.  Wagner v. Thomas J. Obert Enters., 396 N.W.2d 223, 226 (Minn. 1986).[3]  Primary assumption of the risk is a question of law where the evidence is conclusive that the plaintiff assumed the risk.  Rausch v. Julius B. Nelson & Sons, Inc., 276 Minn. 12, 21, 149 N.W.2d 1, 7 (1967).  Evidence is conclusive where the facts are undisputed and reasonable people can draw only one conclusion.  See id. at 21, 149 N.W.2d at 80. 

One generally knows that being on a roof can be dangerous, and therefore assumes the risk of falling from a roof, if that person has prior experience with rooftop work and volunteers to help with a roofing project.  On very similar facts, this court held that a volunteer who fell from a roof while shingling it, had prior experience in shingling roofs, and was aware that a particular roof could be hazardous, assumed the risk of falling.  Goodwin v. Legionville Sch. Safety Patrol Training Ctr., 422 N.W.2d 46, 50 (Minn. App. 1988), review denied (Minn. June 23, 1988); see also Restatement (Second) Torts § 496D, cmt. d (1965) (observing that "[o]ne who has spent a substantial time upon particular premises ordinarily would be found in fact to understand and appreciate the normal, ordinary risks of those premises").   

Here, appellant knew, appreciated, and voluntarily assumed the risk of falling when he volunteered to help re-roof respondent's home.  As in Goodwin, appellant fell while involved in the roofing project, was aware that this particular roof could be hazardous, and had volunteered to work on the roof.  See 422 N.W.2d at 4950.  Appellants admit that the danger of falling off respondent's roof was open and obvious, indicating appellant had actual knowledge and appreciation of the risks involved.  Appellant had prior experience in helping shingle his roof as a child and had already worked on and around respondent's roof for several hours during each of the previous two days.  Appellant therefore assumed the risk of falling from the roof.

Here, danger of falling from respondent's roof was readily apparent.  Because the danger was obvious, respondent owed appellant no duty.  Appellant also assumed this risk of falling, for which the law of tort does not compensate.

            Affirmed.

[1] The term "entrant" describes all those who enter the land of another.  Minnesota law no longer distinguishes between invitees and licensees as controlling in determining whether a landowner owes a duty.  See Louis, 636 N.W.2d at 31819.  A possessor of land owes the same duty to all entrants, regardless of their status as invitees or licensees.  Id.at 319.

[2] Appellants seek to define the duty of reasonable care that respondent owed appellant by drawing an analogy to federal Occupational Health and Safety Administration (OSHA) standards, which require employers to provide fall protection for employees under certain conditions.  See generally 29 C.F.R. § 1926.501 (2004).  Having determined that respondent's duty of care did not encompass protecting against the risk of appellant falling from his roof, it is not necessary to determine the scope of any such duty, or whether such standards have any bearing on respondent's duty.  In any event, the analogy falls short in that respondent is neither an employer nor a professional roofer. 

 

[3] Minnesota law recognizes two types of assumption of the risk.  Swagger v. City of Crystal, 379 N.W.2d 183, 184 (Minn. App. 1986), review denied (Minn. Feb. 19, 1986).  At issue here is primary assumption of the risk.  Primary assumption of the risk applies only when a person is aware of a specific danger.  Olson v. Hansen, 299 Minn. 39, 44, 216 N.W.2d 124, 127 (1974).  By contrast, secondary assumption of the risk is a form of contributory negligence.  Andren v. White-Rodgers Co., 465 N.W.2d 102, 104 (Minn. App. 1991), review denied (Minn. Mar. 27, 1991).