(concurring in part and dissenting in part).
[¶20] I would affirm the circuit court’s grant of summary judgment in its entirety.
[¶ 21] I specifically join the majority writing as it relates to Issue 1. Although I agree with much of the analysis of the majority writing on Issue 2, I disagree with its application of the law of assumption of the risk.
[¶ 22] Specifically, I agree with the majority’s reliance on the Mack decision cited in ¶¶ .11 and 13. Under our settled law, as set forth by the majority in ¶ 11, there are three elements to an assumption of the risk analysis. In its analysis of the.issue, the majority does not reach the second and third elements. I respectfully suggest that its rationale and application of the law are flawed.
[¶23] The majority grounds its holding, and ceases any further analysis of assumption of the risk, principally relying on secondary authority (a Prosser and Keeton horn-book) and an old decision by the intermediate court of appeals in Arizona. That simply is not an adequate analysis. I will next examine the three elements necessary to a proper assumption of the risk analysis.
[¶ 24] A. Actual or Constructive Knowledge of the Risk.
[¶ 25] A court must first look to see if a plaintiff had actual or constructive knowledge of the risk. Unlike the majority, I agree with Waldner and would hold that Ray’s deposition clearly established that he had actual knowledge of the danger involved at *901the time he positioned himself near the rear wheels of the truck, as that testimony is fully set forth by the majority in ¶ 13, supra. Further, the majority’s citation to Goepfert is relevant, but not' properly applied. I assert that standing three feet away from moving truck tires attached to an 80,000-pound semitrailer falls within the category of being a risk “intrinsic” to the act, according to the holding in Goepfert, 1997 SD 56, ¶8, 563 N.W.2d at 143.
[¶ 26] B. Appreciation of the Character of the Risk.
[¶ 27] A court must next examine the appreciation of the character of the risk. It is important to observe that although Ray had only worked for Downes for a short time, he did have considerable farm experience. Additionally, he had approximately ten years’ experience driving and maneuvering heavy trucks with fellow co-workers in close proximity. Ray admitted that any adult person of average intelligence would understand the danger of getting in front of the wheels of a truck while it was moving.
Q: You didn’t need to have anybody warn you or tell you you could get hurt if you got your feet and legs in front of the wheels on a semi-trailer, did you?
A: No. I[Ray] knew it was unsafe to be there.
See Bell v. East River Elec. Power Coop., Inc., 535 N.W.2d 750, 754 (S.D.1995) (concluding a plaintiff will be held to have appreciated the danger undertaken if it was “a risk that no adult person of average intelligence can deny”) (citation and internal quotations omitted). “‘One may not close his eyes to obvious dangers, and cannot recover where he was in possession of facts from which he would be legally charged with appreciation of the danger.’ ” Goepfert, 1997 SD 56, ¶ 9, 563 N.W.2d at 143 (citing Herod v. Grant, 262 So.2d 781, 783 (Miss.1972) (quoting 57 Am. Jur.2d Negligence § 282 (1971))).
[¶ 28] C. Voluntary Acceptance of the Risk.
[¶ 29] Finally, a plaintiff will be deemed to have assumed the risk if it can be said that the risk was voluntarily accepted, having had the time, knowledge, and experience to make an intelligent choice.
(1) A plaintiff does not assume a risk of . harm unless he voluntarily accepts the risk.
(2) The plaintiffs acceptance of a risk is not voluntary if the defendant’s tortious conduct has left him no reasonable alternative course of conduct in order to
(a) avert harm to himself or another, or
(b) exercise or protect a right or privilege of which the defendant has no right to deprive him.
Mack, 1996 SD 63, ¶ 15, 548 N.W.2d at 814-15 (citing with approval the Restatement (Second) of Torts § 496E'(1965)).
[¶ 30] As evidenced by the following testimony, Ray has conceded that he voluntarily put himself in a position of danger:
Q: And you voluntarily put yourself in that position of danger, didn’t you?
A: Yes, I guess I did.
All individuals have a duty of care for their own safety. See Goepfert, 1997 SD 56, ¶ 11, 563 N.W.2d at 143.
[U 31] Ray has testified that there were other, reasonable, alternatives available to him:
Q: You would agree that the accident would not have happened had you used other alternatives that were available to you?
A: Yes, I believe so.
Q: And one of the alternatives that was available to you, would have been to have the driver stop the truck, shut it off and get out;' right?
A: Yes.
Q: And then the driver could have positioned the auger under the belly dump?
A: Yes.
Q: And that would have been a reasonable alternative to the one that you actually used wouldn’t it?
*902A: Yes.
Ray admits that he was not compelled by Waldner to use the particular method he did. Rather, Ray felt the method of moving the auger that he employed was more convenient.2 In utilizing this method, Ray was acting under no compulsion of circumstances created by Waldner. The Restatement (Second) of Torts § 496E cmt. b provides in part:
The plaintiffs acceptance of the risk is to be regarded as voluntary even though he is acting under the compulsion of circumstances, not created by the tortious conduct of the defendant, which have left him no reasonable alternative. Where the defendant is under no independent duty to the plaintiff, and the plaintiff finds himself confronted by a choice of risks, or is driven by his own necessities to accept a danger, the situation is not to be charged against the defendant.
[¶ 32] Another fact ignored by the majority is that after Ray’s deposition, and just prior to the hearing on defendants’ motions for summary judgment, Ray purportedly submitted an affidavit wherein he attempted to claim that there existed no reasonable alternative to the procedure he used in positioning the auger. In previous cases, we have taken a dim. view of eleventh hour attempts by affidavit to salvage a case from summary judgment by contradicting the same party’s previous sworn testimony. See Taggart v. Ford Motor Credit Co., 462 N.W.2d 493, 503 (S.D.1990). However, here we need not even go that far as Ray failed to file this affidavit and thus it is not part of the appeal record. As such its contents are not properly before us.3 ■Thus, Ray is confined to the contents of his deposition testimony and “cannot claim a version of the facts more favorable to his position than he gave in his own testimony.” Mack, 1996 SD 63, ¶ 10, 548 N.W.2d at 814; see also Swee v. Myrl & Roy’s Paving, Inc., 283 N.W.2d 570, 572 (S.D.1979).
[¶ 33] Ray’s reliance on Stenholtz v. Modica, 264 N.W.2d 514 (S.D.1978), is misplaced. In Stenholtz, the plaintiff set up a scaffold underneath a canopy. The canopy was in poor condition and the plaintiff was aware of it. However, the owner/defendant assured the plaintiff the canopy was safe. The canopy collapsed, injuring the plaintiff. This Court held that plaintiff’s knowledge of a potential danger and his appreciation of the risk were not established as they were offset ‘“where the injured person surrenders his better judgment as a result of an assurance of safety5 ” of the canopy by the defendant. Id. at 518 (citing McConnell v. Pic-Walsh Freight Co., 432 S.W.2d 292, 298 (Mo.1968)). Here, there were no such assurances by any of the defendants, only Ray’s repeated admissions that he was aware of the dangerousness of the situation he had voluntarily placed himself in.
[¶ 34] Ray also contends that under Nepstad v. Randall, 82 S.D. 615, 152 N.W.2d 383 (1967), he should not have been held to have assumed the risk because of Waldner’s alleged negligence in driving the semi. In other words, Ray argues that Waldner’s alleged negligence was the proximate cause of his injury. Whether one adopts the majority or minority position in Nepstad,4 the present *903facts are clearly distinguishable. Ray has admitted he knew that it is difficult to move large vehicles short distances and that he was aware he might be injured. Simply put, Waldner’s actions were not unforeseeable or unexpected as was the defendant’s negligence of the unexpected accelerated turn in Nepstad.5 There is no allegation that Wald-ner suddenly turned or accelerated as in Nepstad. Upon Ray’s command, Waldner drove the vehicle straight ahead only three or four feet. While the plaintiff in Nepstad did not anticipate a quick accelerated turn, Ray admits “I knew it was unsafe to be there” and that he was taking the risk of injuring his legs or hip.
[¶ 35] Ray argues that Waldner failed to utilize his mirrors properly and failed to see his hand signals. Yet before Waldner entered the semi, Ray knew that he would be required to simultaneously use his hands to move the auger and signal Waldner. Furthermore, before the accident Ray knew that some of the windows were up in the semi and that there was a significant amount of noise which could have prevented Waldner from hearing him shout to stop. Where a plaintiff has impliedly consented to the negligence, and agrees to take his own chances, “[t]he legal result is that the defendant is simply relieved of the duty which would otherwise exist.” W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 68, at 481 (5thed. 1984).
[¶ 36] Since, I agree with the trial court that there exists no genuine issue of material fact as to whether Ray assumed the risk of his injury, I would affirm.
. There is no evidence in the record indicating that either Downes or Waldner gave Ray the impression that they were in a hurcy. Setting up the auger took several minutes and it cannot be said that Ray did not have a reasonable opportunity to reconsider his approach. See Berg v. Sukup Mfg. Co., 355 N.W.2d 833, 835 (S.D.1984) (in considering available alternatives, “[r]eason-ableness refers to whether the plaintiff had a reasonable opportunity to elect whether or not to subject himself to the danger.”). Safer alternatives should not be held unreasonable merely because they entail duplicative effort.
. The ultimate responsibility for presenting an adequate record on appeal falls on the appellant. Baltodano v. North Cent. Health Servs., Inc., 508 N.W.2d 892, 894 (S.D.1993). While the affidavit is attached to Ray's appellate brief, under SDCL 15-26A-53 briefs submitted to this Court are not part of the "record on appeal.” Similar to cases where the appellate record contains no transcript, "the record on appeal is confined to those pleadings and papers transmitted from the circuit court.” Baltodano, 508 N.W.2d at 894 (citations omitted.)
.Nepstad’s treatment of the assumption of the risk issue consists of one paragraph and fails to use our three criteria analysis.
. Ray testified at his deposition:
Q: His truck didn't make any turn or anything did it?
A: No.
Q: His truck just pulled ahead, what you apparently instructed the driver to do, is that correct?
A: Yes.
Q: Right. But the truck didn’t move to the side at all?
A: No.
Q: The truck didn’t go to the left?
A: No.
Q: The only thing his truck did was go straight ahead?
A: Go straight ahead.