Ms. Hiller, a farrier, was injured while trimming the feet of defendant's horse. The trial court ruled in favor of the horse owner on the ground that Ms. Hiller must have assumed the risk of being kicked by a horse whose hooves she was trimming.
However, the Court of Appeals held that there was evidence that the horse's owner knew the horse was a "kicker" and failed to inform the farrier of that fact. If true, then the farrier's claim is not barred by assumption of risk because material facts had been withheld by the defendant. Therefore, the Court of Appeals sent the case back to be tried.
The district court applied the primary assumption of risk doctrine and ordered summary judgment. The doctrine of primary assumption of risk does not bar a claim if the defendant's actions obscured and enlarged the risk of injury. The evidence is sufficient to create a fact issue on whether the primary assumption of risk doctrine applies, and we reverse and remand.
Cynthia Hiller, a farrier (professional horseshoer), agreed to trim the hooves of a horse owned by Marcia Huyck. Huyck had recently purchased the horse from Tommy Kuemper, doing business as Viking Saddlery. The parties' affidavits and depositions dispute whether Kuemper told Huyck that the horse was a "kicker." Huyck told Hiller that the horse was "sore." Hiller trimmed the horse's front hooves without incident. When she picked up the left rear hoof, the horse jolted, throwing her backward four or five feet and pushing Huyck into the door of the stable. Hiller then applied a twitch, a conditioning and restraining device that applies pressure to the horse's lip. As Hiller began trimming the horse's right rear hoof, the horse kicked Hiller, injuring her knee.
Hiller sued to recover damages for her knee injury. She bases her claim on Huyck's failure to disclose the horse's history of kicking. The district court ordered summary judgment for Huyck and Viking Saddlery, concluding that the doctrine of primary assumption of risk barred Hiller's recovery as a matter of law. Hiller appeals.
Summary judgment is proper when there are no genuine issues of material fact in dispute and a determination of the applicable law will resolve the controversy. Gaspord v. Washington County Planning Comm'n, 312 Minn. 591, 591, 252 N.W.2d 590, 590 (1977). Legal conclusions underlying an order for summary judgment are reviewed de novo. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).
When parties voluntarily enter into a relationship in which a plaintiff assumes well- known, incidental risks, a defendant has no duty to protect the plaintiff from those risks. Olson v. Hansen, 299 Minn. 39, 44, 216 N.W.2d 124, 127 (1974). If the plaintiff's injury arises from those incidental risks, the defendant is not negligent. Id. Primary assumption of risk is an absolute bar to recovery. Armstrong v. Mailand, 284 N.W.2d 343, 348 (Minn. 1979). When the facts are undisputed and only one reasonable conclusion may be reached, assumption of risk is a question of law for the court. Schroeder v. Jesco, Inc., 296 Minn. 447, 451, 209 N.W.2d 414, 417 (1973); Andren v. White-Rodgers Co., 465 N.W.2d 102, 105 (Minn. App. 1991), review denied (Minn. Mar. 27, 1991).
Primary assumption of risk is rarely applied. Rusciano v. State Farm Mut. Ins. Co., 445 N.W.2d 271, 273 (Minn. App. 1989). In even fewer cases is the evidence so clear and undisputed as to present no fact issues for the jury, so that the plaintiff's conduct constitutes a primary assumption of risk as a matter of law. Goodwin v. Legionville Sch. Safety Patrol Training Ctr., 422 N.W.2d 46, 50 (Minn. App. 1988), review denied (Minn. June 23, 1988).
Certain criteria must be satisfied to apply the doctrine of primary assumption of risk: (1) plaintiff had knowledge of the risk, (2) plaintiff appreciated the risk, and (3) plaintiff had a choice to avoid the risk but voluntarily chose to accept the risk. Wegscheider v. Plastics, Inc., 289 N.W.2d 167, 169 (Minn. 1980); Andren, 465 N.W.2d at 104-05. The doctrine requires actual knowledge of a known risk. Wegscheider, 289 N.W.2d at 170.
Primary assumption of risk does not apply when a defendant's conduct has enlarged the risk to the plaintiff. Rusciano, 445 N.W.2d at 273 (person standing in path of motor vehicle did not assume risk of being hit when vehicle accelerated, thereby enlarging the risk); Kaiser v. Northern States Power, 353 N.W.2d 899, 904-05 (Minn. 1984).
On review of a summary judgment, the evidence is evaluated in the light most favorable to the nonmoving party. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). Assuming the facts in a light most favorable to Hiller, Huyck knew of the horse's history of kicking. Hiller asked Huyck if the horse was a kicker. Huyck told Hiller that the horse was "sore." Huyck withheld from Hiller the information that the horse was a known "kicker." Hiller stated that when she knows a horse is a kicker, she may refuse a job and that she relies on a horse owner's information about a horse's temperament to decide how to proceed in her job.
As a farrier, Hiller subjected herself to certain occupational dangers. But Huyck's failure to disclose the horse's dangerous temperament may have expanded those dangers in two ways. First, Hiller's ignorance of the horse's temperament prevented her from fully appreciating the risk and making an informed decision whether to trim the horse's hooves. She may have readily accepted the risks of trimming the hooves of a horse of normal temperament, but she may not have elected to trim the hooves of a known kicker. See Griffiths v. Lovelette Transfer Co., 313 N.W.2d 602, 605 (Minn. 1981) (in a given situation, a plaintiff may assume some anticipated risks and not assume other unanticipated risks).
Second, Huyck's failure to disclose the horse's nature may have enlarged the risk to Hiller. She set about her procedures relying on Huyck's description of the horse. Lacking important information about the horse's known propensities, she operated from a position of ignorance and was subjected to an enlarged risk of injury.
Whether Huyck made statements or engaged in conduct that prevented Hiller from fully anticipating the risk of being kicked or enlarged her risk of being kicked, is a fact issue that affects the application of the primary assumptions of risk doctrine. Consequently, we reverse the district court's decision to apply the primary assumption of risk as a matter of law.
Reversed and remanded.
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