Andren v. White-Rodgers Co.

465 N.W.2d 102, 1991 Minn. App. LEXIS 47, 1991 WL 4035
Court of Appeals of Minnesota·Decided January 22, 1991·No. CX-90-1755·Published·Cited by 26 cases

Opinions

OPINION

SHORT, Judge.

This products liability action arises from a liquid propane gas explosion in Robert Andren’s cabin. On appeal from a grant of summary judgment, Andren argues the trial court erred in deciding his lighting of a cigarette in a basement filled with gas was a legal bar to recovery. We disagree and affirm.

[104] FACTS

Andren owned a lake cabin which was heated by liquid propane (LP) gas. A line ran from an LP tank outside the cabin to a space heater in the basement. Andren bought the space heater in used condition in 1982 and installed it himself. The heater operated for several winters without problems.

In January of 1985, Andren went to check on the cabin. When he entered the basement, he noticed the smell of LP gas. After turning on the basement light, An-dren discovered the smell of gas grew stronger as he walked further into the basement. Believing the pilot light on the heater had blown out, Andren sent his daughter upstairs to find matches to use to light the heater later. Andren then tried to open the basement windows to air out the room.

Because the basement windows were jammed shut, Andren decided to get a screwdriver from his car to pry them open. Before Andren left the basement, he stopped just inside the door and lit a cigarette. The LP gas exploded and the basement began to burn. Andren’s hands, face and head were severely burned.

Although Andren had no formal training regarding LP gas appliances, he had installed over 100 LP gas heaters. Andren had also used LP gas appliances all of his life. He knew LP gas was dangerous and could explode if exposed to a spark or an open flame. Andren specifically knew not to smoke or to light a match when the smell of LP gas was in the air.

Andren claims a defective regulator in the gas heater allowed LP gas to leak into the basement. He sued the manufacturer, White-Rodgers Company, and the retailer, Sears, Roebuck & Co., alleging strict liability, breach of warranty and negligence. The manufacturer brought Flexan Corporation into the lawsuit by alleging it provided the defective regulator part. The manufacturer moved for summary judgment and agreed, for purposes of the motion, the valve in the LP gas heater was defective. The trial court granted summary judgment against Andren and held Andren’s claims were barred because he primarily assumed the risk of injury.

ISSUE

Did the trial court err by concluding primary assumption of the risk is a legal bar to Andren’s claims?

ANALYSIS

On appeal from a grant of summary judgment, we must determine whether any genuine issues of material fact exist and whether the trial court erred in its application of the law. Offerdahl v. University of Minn. Hosps. and Clinics, 426 N.W.2d 425, 427 (Minn.1988). The facts are not disputed. The only issue before this court is whether primary assumption of the risk can be a bar to recovery in a products liability case. We need not defer to the trial court’s application of the law. Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984).

Minnesota law recognizes two types of assumption of the risk. Swagger v. City of Crystal, 379 N.W.2d 183, 184 (Minn.App.1985), pet. for rev. denied (Minn. Feb. 19, 1986). Primary assumption of the risk arises:

Where parties have voluntarily entered a relationship in which plaintiff assumes well-known, incidental risks. As to those risks, the defendant has no duty to protect the plaintiff and, thus, if the plaintiff’s injury arises from an incidental risk, the defendant is not negligent.

Olson v. Hansen, 299 Minn. 39, 44, 216 N.W.2d 124, 127 (1974). Conversely, secondary assumption of the risk “is a type of contributory negligence where the plaintiff voluntarily encounters a known and appreciated hazard created by the defendant without relieving the defendant of his duty of care with respect to such hazard.” Armstrong v. Mailand, 284 N.W.2d 343, 349 (Minn.1979). The elements of both primary and secondary assumption of the risk are whether a person had (a) knowledge of the risk; (b) an appreciation of the risk; and (c) a choice to avoid the risk but volun[105] tarily chose to chance the risk. See id. at 351; Olson, 299 Minn. at 44, 45, 216 N.W.2d at 127, 128; Goodwin v. Legionville School Safety Patrol Training Center, 422 N.W.2d 46, 49 (Minn.App.1988), pet. for rev. denied (Minn. June 23, 1988); see also Restatement (Second) of Torts §§ 496A-E (1965). The manifestations of acceptance and consent dictate whether primary or secondary assumption of the risk is applicable in a given case. Armstrong, 284 N.W.2d at 351. The wisdom and reasonableness of the plaintiffs actions are not factors in the determination. Id.

The doctrine of primary assumption of the risk defines the limits of a defendant’s duty to the plaintiff. Id. By voluntarily entering into a situation where the defendant’s negligence is obvious, the plaintiff accepts and consents to it and agrees “to undertake to look out for himself and relieve the defendant of the duty.” W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Torts, § 68, at 485 (5th ed. 1984) (hereinafter W. Kee-ton). When the facts are undisputed and reasonable people can draw only one conclusion, assumption of the risk is a question of law for the court. Schroeder v. Jesco, Inc., 296 Minn. 447, 451, 209 N.W.2d 414, 417 (1973).

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Andren v. White-Rodgers Co., 465 N.W.2d 102, 1991 Minn. App. LEXIS 47, 1991 WL 4035 (Mich. Ct. App. 1991).

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