(dissenting).
I respectfully dissent: On these facts, I would reverse and remand for a summary judgment award in favor of Lyrek.
As the majority correctly notes, to establish the existence of a common enterprise:
(1) The employers must be engaged on the same project;
(2) The employees must be working together (common activity); and
(3) In such a fashion that they are subject to the same or similar hazards.
McCourtie v. United States Steel Corp., 253 Minn. 501, 506, 93 N.W.2d 552, 556 (1958).
Respondent concedes that elements (1) and (2) have been met and that the only way he can prevail is to show that the two workers were not subject to the same or similar hazards. The only factor in dispute here is whether Gerald Lyrek, who was digging a trench with a backhoe, and Charles Olson, who was laying pipe in the trench, were subject to the same or similar hazards.
The majority equates this ease with Soren-son v. Visser, 558 N.W.2d 773 (Minn.App.1997). In Sorenson, this court determined that the driver of a backhoe digging a trench was “not subject” to the same or similar hazards as the person uncovering a water line and giving directions to the backhoe driver while standing in the trench. Id. at 775-76. There, the individual in the- trench was injured by a chunk of clay that broke off from the side of the trench. Id. at 774. This court noted that the person in the trench was subject to possible trench cave-ins and other injuries related to being in the trench and that the backhoe driver was not subject to these hazards. Id. at 776.
On the other hand, here both Lyrek and Olson were exposed to risk of injury from the backhoe. Unlike in Sorenson, the backhoe did not knock clay or dirt on Olson (a risk the backhoe driver was not exposed to). Instead, the backhoe tipped, injuring both Olson and Lyrek, the backhoe operator. Olson was pinned beneath the backhoe, and Lyrek was thrown from the backhoe. Both were injured as a result of the same incident by the same instrumentality. See O’Malley v. Ulland Bros., 549 N.W.2d 889, 897 (Minn.1996) (concluding although hazards not identical, employees were subject to similar- hazards). Thus, Lyrek and Olson were exposed to a “same or similar hazard[ ].” McCourtie, 253 Minn, at 506, 93 N.W.2d at 556. Both men were working on the same project, on the same portion of that project (laying pipe). Both were injured at exactly the same time by exactly the same hazard, a tipped backhoe. All three elements of common enterprise were met .here, and the district court erred in denying Lyrek’s motion for summary judgment.