Allen LaLim, Appellant, vs. James Christiansen, et al., Respondents.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-99-2058

Allen LaLim,
Appellant,
 
vs.
 
James Christiansen, et al.,
Respondents.

Filed May 23, 2000

Reversed and remanded

Klaphake, Judge

Dissenting, Shumaker, Judge

Dakota County District Court

File No. C8-98-10321

John Harper III, Terrance J. Wagener, Krass Monroe, P.A., 1650 West 82nd St., Suite 1100, Bloomington, MN  55431 (for appellant)

C. Todd Koebele, Nancy A. Proffitt, Murnane Conlin White & Brandt, 1800 Piper Jaffray Plaza, 444 Cedar St., St. Paul, MN  55101 (for respondents)

            Considered and decided by Shumaker, Presiding Judge, Crippen, Judge, and Klaphake, Judge.

KLAPHAKE, Judge

            Appellant Allen LaLim brought this negligence action against respondents James and Kathryn Christiansen, seeking damages for injuries he received in respondents' backyard after he ignited some weeds with a lighter that James Christiansen had handed him as Christiansen was dousing the weeds with gasoline.  The district court granted respondents' motion for summary judgment, concluding that LaLim's claims were barred by the doctrine of primary assumption of risk because LaLim had "clear knowledge of the risk" as he was present when the gasoline was applied to the weeds and "knew [that] gasoline was flammable."

Because fact issues exist as to whether LaLim had actual knowledge of the risks of gasoline fumes, we reverse the district court's grant of summary judgment to respondents and remand.

D E C I S I O N

            Summary judgment is properly granted when there are no genuine issues of material fact and either party is entitled to judgment as a matter of law.  Minn. R. Civ. P. 56.03.  On appeal, "we view the evidence in the light most favorable to the party against whom summary judgment was granted."  Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995) (citation omitted).  "Any doubt as to whether issues of material fact exist [must be] resolved in favor of the party against whom summary judgment was granted."  Id. (citation omitted).

            Primary assumption of the risk is shown if the person has knowledge of the risk, appreciates the risk, and has a choice to avoid the risk but voluntarily chooses to chance the risk.  Andren v. White-Rodgers Co., 465 N.W.2d 102, 104-05 (Minn. App. 1991), review denied (Minn.  Mar. 27, 1991).  The doctrine "applies to one who voluntarily exposes himself to a known and appreciated risk arising from another's negligence."  Parr v. Hamnes, 303 Minn. 333, 338, 228 N.W.2d 234, 237 (1975).  "The knowledge required is actual knowledge as distinguished from constructive notice or knowledge."  Id. at 338, 228 N.W.2d at 237-38 (quotation omitted).

            Primary assumption of the risk has been held to apply in cases involving patrons of "inherently dangerous" sporting events.  See, e.g., Grisim v. TapeMark Charity Pro-Am Golf Tournament, 415 N.W.2d 874 (Minn. 1987) (golf); Wagner v. Thomas J. Obert Enters., 396 N.W.2d 223, 226 (Minn. 1986) (rollerskating); Jussila v. United States Snowmobile Ass'n, 556 N.W.2d 234, 237 (Minn. App. 1996) (snowmobile racing), review denied (Minn. Jan. 29, 1997).  The doctrine may also be applied in situations involving obvious dangers, where knowledge may be imputed, such as "the slipperiness of ice or the danger of falling objects" while walking under a ladder on a busy construction site.  Parr, 303 Minn. at 338-39, 228 N.W.2d at 238.

            The issue of whether primary assumption of the risk applies is generally for the jury to decide, unless the evidence is conclusive.  Rausch v. Julius B. Nelson & Sons, Inc., 276 Minn. 12, 21, 149 N.W.2d 1, 7 (1967).  Only in a few cases is the evidence so clear and undisputed to allow a directed verdict or a grant of summary judgment on the issue of primary assumption of the risk.  See, e.g., Andren, 465 N.W.2d at 105-06 (summary judgment entered against plaintiff, where he lit cigarette in gas-filled room and evidence established that he had installed over 100 LP gas heaters, had used LP gas appliances all of his life, knew to avoid smoking or lighting a match when the smell of LP gas was in the air, and knew that LP gas was dangerous and could explode if exposed to a spark or an open flame); Goodwin v. Legionville Sch. Safety Patrol Training Ctr., 422 N.W.2d 46, 50 (Minn. App. 1988) (directed verdict upheld, where plaintiff fell from roof while shingling it and evidence showed that she had prior experience in shingling roofs, was aware that particular roof could be hazardous, and had volunteered to work on the roof), review denied (Minn. June 23, 1988).  These cases require that a plaintiff actually know of the particular risks involved and that the plaintiff nevertheless accept those risks.

            General knowledge of the flammability of a particular substance is not enough.  In Albert v. Paper Calmenson & Co., 515 N.W.2d 59, 63 (Minn. App. 1994), the plaintiff was employed by a company that cleaned and removed underground storage tanks.  The defendant had retained the company to clean a tank containing No. 6 fuel oil.  The evidence showed that the plaintiff was familiar with No. 6 fuel oil and that he believed it was "tar-like when it was cold, and not very flammable at all."  The plaintiff knew that the defendant had heated the fuel oil to 240 degrees to aid in the tank cleaning and provided him with a torch to cut the bolts off the tank cover when he could not access the tank.  One of the defendant's employees testified that he knew the fuel vapors in the tank could ignite, but he did not warn the plaintiff.  When the plaintiff used the torch, the vapors exploded and he was severely burned.

            In Albert, the jury found the defendant 50 percent negligent and the plaintiff 25 percent negligent.  On appeal, the defendant argued that the trial court had erred by refusing to instruct the jury on primary assumption of the risk.  This court concluded that such an instruction would have been inappropriate because there was "no evidence in this record that [the plaintiff] knew that dangerous, flammable vapors had developed in the tank."  Id. at 66-67.

In this case, LaLim testified that he has been employed for the last several years by different automobile dealerships in detailing and preparing cars for sale.  He acknowledged that he knew gasoline was "flammable," but claimed he knew little else about the properties of gasoline and its fumes.  He further acknowledged that he and his friends often had bonfires in his backyard and that he was present when those fires were built; however, he claimed that he had never actually lit a bonfire.  There is no evidence that any of these bonfires had been started with gasoline.

            At the time of the accident, LaLim had walked over to the Christiansens' yard as he was waiting for another neighbor to finish a dart game.  Christiansen handed LaLim a lighter.  While Christiansen poured the gasoline, LaLim was facing sideways so that he could talk to Christiansen while watching to see if the other neighbor had finished the game.  LaLim paid little attention to precisely where Christiansen poured the gasoline or to exactly how much gasoline Christiansen had applied.  LaLim then lit what he believed was the edge of the plot of weeds.  Gasoline fumes immediately exploded, and flames engulfed the Christiansens' backyard.  Next door, the neighbors heard a loud explosion and saw a small mushroom-shaped cloud of smoke. 

            When the facts are viewed in the light most favorable to LaLim, we cannot conclude that, as a matter of law, LaLim had actual knowledge of the specific risks involved here.  There is no evidence as to what LaLim understood "flammable" to mean; there is no evidence that he knew that gasoline fumes could explode or burn back towards him; and there is no evidence that he knew that gasoline fumes needed time to dissipate.  Given the particular and somewhat unusual risks involved, this is not merely a case where knowledge must be imputed because of the obvious dangers of fire. Cf. Restatement (Second) Torts § 496 D, cmt. d (1965) (adults may be assumed to know of certain risks, such as the risk of being burned if you come into contact with fire).  As our previously-cited authorities demonstrate, a plaintiff's knowledge of a risk must be actual, and not merely common, general knowledge of the dangerous qualities of fuel oil, sloping roofs, or LP gas.

            Finally, respondents alternatively argued that summary judgment was appropriate because the danger was open and obvious, and they therefore owed no duty to LaLim.  The district court did not address this issue.  The supreme court has stated that "[b]efore a court considers assumption of the 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).

            The duty owed in this case, however, is not limited to respondents' liability as landowners for a condition or activity on their property.  Rather, LaLim alleges that, by his conduct and actions, Christiansen was negligent in dispensing the gasoline and handing a lighter to LaLim.  As such, it presents a case of ordinary negligence based on Christiansen's affirmative actions.  See Restatement (Second) Torts § 283 (1965) (negligence is failure to do what reasonable person would do "under like circumstances"); 4 Minnesota Practice, CIVJIG 101 (1986) ("Negligence is the failure to use reasonable care.").  The issue of whether that duty has been breached and whether LaLim assumed the risk are issues for the jury to decide.  See Springrose v. Willmore, 292 Minn. 23, 24, 192 N.W.2d 826, 827 (1971).

            The district court's grant of summary judgment is reversed and the matter is remanded for further proceedings.

            Reversed and remanded.

SHUMAKER, Judge (dissenting)                                                                                                 

            I respectfully dissent.

            Here, an adult homeowner (James Christiansen) decides to get rid of weeds in his backyard by pouring gasoline on them and igniting the gasoline.

            As the homeowner prepares for this task, an adult neighbor (Allen LaLim) comes into the backyard.  The homeowner tells the neighbor of his plan, and then begins to pour gasoline on the weeds.  When the homeowner finishes pouring the gasoline, he asks the neighbor to light the area where the gasoline had been poured.

            The neighbor lights the area with the homeowner's barbecue grill butane lighter.  There is an instant "flash fire" and both men are burned.  The neighbor sues the homeowner on a negligence theory.  The district court grants summary judgment to the homeowner, ruling that the neighbor assumed the risk of his injury as a matter of law.

            I believe the district court ruled correctly.  These facts compel the conclusion that the neighbor assumed the risk of his burns.  The principle of primary assumption of risk controls.  A landowner "has no duty to an invitee where the anticipated harm involves dangers so obvious that no warning is necessary." Baber v. Dill, 531 N.W.2d 493, 496 (Minn. 1995)  "The rationale underlying this rule is that ‘no one needs notice of what he knows or reasonably may be expected to know.'"  Id. (quoting Sowles v. Urschel Lab., Inc., 595 F.2d 1361, 1365 (8th Cir. 1979)).

            The majority holds that there are fact issues as to the neighbor's knowledge and appreciation of the risk.  The majority holds that it is not enough that he knew of the flammability of gasoline; he needed to have actual knowledge of the specific risks of igniting the gasoline.  That knowledge would entail some understanding of the properties of gasoline, the explosive nature of gasoline fumes, the tendency of ignited gasoline to burn back toward him, and the time needed for gasoline fumes to dissipate.

            I do not agree that such specialized knowledge is required for the proper application of assumption of risk.  When a person knows of a danger (fire can be dangerous), knows how that danger can be created (putting a flame to gasoline can cause a fire), appreciates the danger (fire can burn me), has an unfettered choice to avoid the danger (I do not have to light this gasoline on fire), and nevertheless chooses to encounter the risk (I will light this gasoline on fire), that person assumes the risk of being burned.  This is primary assumption of risk.  This is what happened here.

            Moreover, the neighbor did not merely passively come upon the risk; he participated in its creation by lighting the gasoline.  As in Baber, where the injured person helped create the risk of injury, here the landowner had no duty to warn the neighbor:

In the present case, we conclude a landowner has no duty to an invitee to warn or make safe known and obvious conditions when that invitee has assisted in creating those conditions.  Therefore Dill had no duty to William Baber.  To hold a landowner has a duty to warn an invitee of danger created, in part, by that individual is untenable.

Id.

            Because LaLim can reasonably be charged with the universal knowledge that fire can burn those who are in its proximity and because LaLim participated in creating the precise risk that caused his injury, I would affirm.