Blue Earth County District Court File No. 07-CV-12-131 John M. Riedy, Nicholas J. Maxwell, Maschka, Riedy & Ries, Mankato, Minnesota (for appellants)
Richard W. Sobalvarro, Matthew W. Moehrle, Rajkowski Hansmeier, Ltd., St. Cloud, Minnesota (for respondent Crystal Valley Cooperative)
Paul N. Muske, Muske, Muske & Suhroff, Springfield, Minnesota (for respondent Dan Eischen)
Considered and decided by Hudson, Presiding Judge; Stoneburner, Judge; and Schellhas, Judge.
The doctrine of primary assumption of risk does not apply to bar claims for injuries arising out of towing of farm equipment.
Appellants argue that the district court erroneously dismissed their negligence claim against respondent on summary judgment based on the court's application of the primary-assumption-of-risk doctrine. We agree, and we reverse and remand for trial.
Appellants Kurt Eischen and JoAnn Eischen (Eischens) sued respondent Crystal Valley Cooperative, alleging that Crystal Valley's negligence caused Kurt Eischen to suffer injuries on July 1, 2010, including pain, disfigurement, and disability, and caused JoAnn Eischen to suffer loss of companionship and society with her husband, Kurt Eischen. Eischens allege that Crystal Valley caused those injuries by negligently training and supervising its employees and by supplying its employees with chains. Crystal Valley attached the chains to a tractor to tow a self-propelled sprayer that was stuck in a farm field that Kurt Eischen and his son, Matt Eischen, owned or leased together and farmed. In response to Eischens' complaint, Crystal Valley raised the defense of primary assumption of risk and also commenced a third-party action against Dan Eischen, another son of Eischens, alleging that his negligent operation of a tractor caused Eischens' injuries and that, if Crystal Valley were found negligent, it would be entitled to contribution and/or indemnity from Dan Eischen.
The following facts are from deposition testimony of Kurt Eischen, Dan Eischen, and Crystal Valley employees. Kurt Eischen grew up on a farm and has farmed his entire life. At the time that he sustained his injuries, he owned or rented 800 acres of tillable ground and farmed an additional 320 acres with his three sons, including Dan Eischen.
In 2010, Kurt Eischen contracted with Crystal Valley to fertilize a portion of his farm land. On July 1, Crystal Valley dispatched several employees and an approximately 30, 000-pound liquid-fertilizer sprayer to Kurt Eischen's farm. A Crystal Valley employee operated the sprayer. The sprayer twice became stuck in the field. When the sprayer first became stuck, Crystal Valley called Matt Eischen, asking that a tractor be brought to the field. Matt Eischen called Kurt Eischen, who called Dan Eischen, who brought his tractor to the field to pull the sprayer free. To pull the sprayer free, the Crystal Valley employees used two 3/8-inch chains supplied by Crystal Valley. Crystal Valley employees hooked the two chains to the sprayer. Because of concern about damaging the sprayer with the tractor, a Crystal Valley employee and Kurt Eischen locked the chains to a loop on the end of a tow rope to increase the distance between the tractor and the sprayer. Kurt Eischen supplied the tow rope. To pull the sprayer free, Dan Eischen backed the tractor toward the sprayer and Kurt Eischen hooked the tow rope to the tractor.
To extricate the sprayer in the field the first time it became stuck, Kurt Eischen stood between the tractor and the sprayer, held the rope and chains off the ground, and signaled Dan Eischen to drive the tractor forward to remove the slack and create "a little tension." Dan Eischen did so. Kurt Eischen then moved out of the way and signaled Dan Eischen with his hand to drive the tractor forward. At the same time, a Crystal Valley employee attempted to drive the sprayer. The parties successfully freed the sprayer, and those present unhooked the equipment.
While using the same procedure, the parties attempted to free the sprayer the second time it got stuck, but a chain snapped and struck Kurt Eischen below his right knee, resulting in serious injuries that required a two-week hospitalization, more than five operations, and a nerve graft. Kurt Eischen testified at his deposition over a year and a half later that he ...