Goodwin v. Legionville School Safety Patrol Training Center, Inc.

OPINION

MULALLY, Judge.

Appellant Josephine Goodwin appeals from an order, dated July 27,1987, denying her motion for a new trial. At the close of all the evidence, the trial court directed a verdict in favor of the respondents, Legion-ville School Safety Patrol Training Center, Inc. (hereinafter referred to as Legionville) and Grande Voitures Du Minnesota, La Societe Des Quarante Hommes, et Huit Chevaux (hereinafter 40 & 8). Findings of facts, conclusions of law and order for judgment were entered on June 26, 1987. A motion for a new trial pursuant to Minn.R.Civ.P. 59.01(7) contended that the trial court’s decision was not justified by the evidence and was contrary to law. Goodwin alleges that the trial court was in error in granting a directed verdict because the evidence was not sufficient. Goodwin also contends that the trial court erred in holding that as a matter of law, primary assumption of risk applied to this case and barred Goodwin’s claim. Respondent Le-gionville has filed a notice of review alleging that as a matter of law, they owed no duty to appellant.

FACTS

Appellant commenced an action against Legionville School Safety Patrol Training Center arising out of injuries which she sustained in a fall from the roof of a dining hall at the Legionville School Safety Patrol Training Center on May 22, 1982. Legion-ville later brought an action against 40 & 8, alleging that its liability is secondary to 40 & 8 or in the alternative, that Legionville is entitled to indemnity against 40 & 8 if found liable.

Legionville is a nonprofit corporation which holds training sessions at its lakefront property each summer for school crossing guards. While Legionville is affiliated with the American Legion, technically it is a separate entity. 40 & 8 is an unincorporated association composed exclusively of American Legion members and is an honorary society of the American Legion. *48Each spring, 40 & 8 has conducted a “work and play weekend,” with the permission of Legionville, to do repairs, maintenance and other chores to prepare the campground for the summer sessions. The 40 & 8 members invite their families or friends to the work and play weekend to perform the chores on a voluntary, noncompensatory basis.

Goodwin was invited as a guest of a friend, Dale Buffington, for the work and play weekend of May 21-24, 1982. Goodwin had also attended the work and play weekend in 1981 with Buffington. In 1981, Goodwin and Buffington volunteered to shingle some dormitories at Legionville. The roofing was an ongoing project which took several years to complete. Goodwin had also had experience in roofing her own house. Buffington had helped Goodwin roof her house and had also roofed his own house. The 40 & 8 members were told to bring their own hammers and to wear rubber-soled shoes if they were going to help with roofing.

Goodwin and Buffington arrived at the campground late Friday evening. They missed an organizational meeting which was held earlier. The work commenced the following morning. Approximately 60-90 persons were present for the work and play weekend. Nails and shingles for the project were provided by Legionville. Several people were already working on the mess hall roof when Goodwin began work Saturday morning. While the peak of the dining hall was approximately 12-14 feet above ground, the edge of the roof was 5-6 feet above ground. There was no ladder present since the workers could get onto the roof by first stepping on a concrete pillar.

Fred Fisher, the caretaker of Legionville, periodically checked on workers and made sure that they had enough supplies. The Legionville board had approved the roofing of the dining hall at a meeting held in October of 1981. The board knew that members of 40 & 8 would be doing the work and that these people were non-professional volunteers. The board, as well as anyone who looked at them, knew that the dining hall was higher and steeper than the dormitories which had been shingled in 1981.

Those who were to work on roofs were told to wear rubber-soled shoes. Goodwin was wearing rubber-soled shoes at the time of the accident. Goodwin testified that she was sitting on the roof and reaching for a shingle slightly above her when she slid off the roof. She thinks that grit from the shingles may have caused the roof to become slippery. Goodwin testified that she went up on the roof voluntarily, knowing that all roofs were hazardous and that this particular roof could be hazardous, although it did not seem to be dangerous. Goodwin also testified that she was aware that she could fall off the roof and injure herself. Goodwin also testified that she was familiar with safety precautions which could be used while roofing. She also testified that she had never been on this roof before and that she never thought about placing a board along the edge of the roof as a safety precaution.

A trial by jury was held on June 1 and 2, 1987. The respondents moved for a directed verdict at the close of the appellant’s case in chief and at the close of all evidence. The trial court granted the directed verdict. In its findings of facts, the trial court found that:

Prior to May 22, 1982, Plaintiff had had experience in shingling roofs. She had worked on the roof of her own home, installing shingles. She was present at the work and play weekend at Legion-ville Camp in 1981, at which time she installed shingles on dormitories.
* * * Prior to her injury, she was aware that, “All roofs are hazardous.” She knew that the particular roof over the mess hall could be hazardous.
Plaintiff had agreed, of her own volition, to undertake work on the roof of the mess hall. She did not do so in response to the orders of anyone. Her decision to participate in the roofing activities was a voluntary choice on her part.
The particular risk to which Plaintiff was subjected at the time of her injury *49was the risk that she might lose traction and fall off of the roof. Before the injury, she had knowledge of this risk, she appreciated the risk, and, although she had a chance to avoid it, she voluntarily chose to chance it.

The trial court made the following conclusions of law:

I. During the work and play weekend of May, 1982, defendant Legionville owed a duty to use reasonable care for plaintiff’s safety.
II. However, immediately prior to her injury of May 22,1982, plaintiff assumed the risk that she might lose traction and fall off the roof. As a result, defendant did not owe plaintiff a duty of due care to protect her from the risk which caused her injury.
III. Plaintiff may not recover from defendant Legionville.
IV. Legionville’s claim against 40 & 8 is rendered moot.

Goodwin moved for a new trial on all issues. The trial court denied the motion. Goodwin appeals from the court’s order, contending that the trial court erred in applying the doctrine of primary assumption of risk to these facts; and that facts exist upon which a jury could sustain a verdict for the plaintiff.

ISSUE

Did the trial court err in directing a verdict in favor of Legionville?

ANALYSIS

A motion for a directed verdict presents only a question of law for the trial court regarding the sufficiency of the evidence to present a fact question for the jury to decide. The test to be applied by the lower court and this court on review is that the motion should be granted only in those unequivocal cases where 1) in the light of the evidence as a whole, it would clearly be the duty of the trial court to set aside a contrary verdict as being manifestly against the entire evidence, or where 2) it would be contrary to the law applicable to the case.

J.N. Sullivan & Associates, Inc. v. F.D. Chapman Construction Co., 304 Minn. 334, 336, 231 N.W.2d 87, 89 (1975). The evidence must be viewed in the light most favorable to the party opposing the motion. Peterson v. Little-Giant Glencoe Portable Elevator Division of Dynamics Corporation of America, 366 N.W.2d 111, 115 (Minn.1985).

If there is a fact question presented for jury decision under all of the evidence and the applicable law, the motion should be denied.

Jacoboski v. Prax, 290 Minn. 218, 187 N.W.2d 125, 127 (1971).

The trial court, in its memorandum, which was made part of the order granting a directed verdict in favor of respondent, pointed out that a possessor of land owes to an entrant, such as this appellant, a duty to exercise reasonable care for her safety. Peterson v. Balach, 294 Minn. 161, 199 N.W.2d 639 (1972). However, the duty can be negated so as to free a possessor of land from liability by the actions of the entrant (here the appellant) in assuming risks that (1) appellant had knowledge of; (2) appellant appreciated; and (3) appellant had a choice to avoid, but voluntarily chose to chance. Evanson v. Jerowski, 308 Minn. 113, 241 N.W.2d 636, 640 (1976). Also, as pointed out by the trial court, in its primary sense, assumption of risk refers to the concept that an appellant’s actions can, in fact, negate a duty owed by a respondent. Armstrong v. Mailand, 284 N.W.2d 343, 351 (Minn.1979).

In ruling on respondents’ motion for a directed verdict, the trial court assumed that all of appellant’s evidence was true and drew inferences favorable to her. The trial court went on to find that no fact issues remained for the jury’s determination, and that based on appellant’s testimony alone, all of the elements of assumption of the risk were present. First, she had knowledge of the risk that she might be injured if she worked on a roof. She testified that all roofs are dangerous and that this one could be. She had done roofing previously, both at Legionville Camp and on her own home. Second, she appreciated *50the risk. She knew that she had to wear rubber-soled shoes while working on the roof. The shoes were necessary to give traction to anyone working on a roof so he or she would not slip. Finally, the court found that it was undisputed that she voluntarily chose to become one of those working on the roof of the mess hall, and that to these specific items of undisputed evidence there must be added the conclusion that anyone with ordinary powers of observation and normal common sense could appreciate that there is always a danger of slipping and falling when one works on a roof.

Based upon such findings, the trial court held that as a matter of law primary assumption of risk applied, barring Goodwin’s claim. The trial court held that the assumption of risk in the primary sense, negated any other duty of care which the respondents might otherwise have owed to the appellant.

Taking all fact situations into account as disclosed by the evidence, it appears quite conclusively that the plaintiff knew of the existence of the facts which created the danger; that he fully appreciated the nature and extent of the particular risk created at the time, which, on his own testimony, was observable; and that he acquiesced and willingly, on his own, assumed the risk.

Syverson v. Nelson, 245 Minn. 63, 72, 70 N.W.2d 880, 886 (1955).

Here primary assumption of risk is applicable because appellant chose to encounter a well-known incidential risk of roofing; slipping and falling off the roof. “As to those risks, the [respondent] has no duty to protect the [appellant] and, thus, if the [appellant’s] injury arises from an incidental risk, the [respondent] is not negligent.” Olson v. Hansen, 299 Minn. 39, 216 N.W.2d 124, 127 (1974).

There will be a limited number of cases in which the doctrine of primary assumption of risk applies. There will be an even more limited number of cases in which the evidence is so clear and undisputed as to present no fact issues for the jury to decide, and the actions of the claimant are such as to constitute primary assumption of risk as a matter of law. In our opinion, this is such a case.

DECISION

The trial court did not err in directing a verdict in favor of respondent Legionville.

Affirmed.

NORTON, J., dissents.