1

Roger L. Wollman became Chief Judge of the United States Court of Appeals

for the Eighth Circuit on April 24, 1999.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-2554

___________

Christopher Alan Walk, *

*

Plaintiff/Appellant, *

*

v. * Appeal from the United States

* District Court for the

Starkey Machinery, Inc., * District of Minnesota.

*

Defendant/Appellee, *

*

v. *

*

Continental Clay Company, *

*

Third Party Defendant. *

___________

Submitted: March 8, 1999

Filed: June 8, 1999

___________

Before FAGG, LAY, and WOLLMAN,1

 Circuit Judges.

___________
2The Honorable Donald D. Alsop, United States District Judge for the District

of Minnesota.

3A pug mill is a clay-working machine that removes the air from clay, shaping

it into a final, usable form called a pug.

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WOLLMAN, Chief Judge.

In this diversity action, Christopher Alan Walk appeals the district court’s2

adverse grant of summary judgment in his product liability action for personal injuries

suffered in a workplace accident. We affirm.

I.

Walk worked for the Continental Clay Company (Continental) as a clay loader

or “mixer.” Continental mixes and sells various types of clay for commercial use.

Walk began working as a mixer in August of 1995 and was responsible for mixing

twenty to thirty batches of clay per day.

A mixer combines dry material and water to form moist clay. That clay is then

carried by conveyor belt into the trough of the pug mill,3 which was manufactured by

Starkey Machinery (Starkey). The clay is then fed into an auger, which moves the clay

down the trough and into a vacuum tube. When the clay emerges from the vacuum

tube, it is bagged and boxed for shipment. After each batch of clay is finished, the

sides of the trough are cleaned and excess clay is removed. To complete this process,

Walk would disengage the auger and remove the protective cover on the trough. He

would then use a scraper to push the excess clay toward the vacuum tube. He would

then engage the auger and scrape the residual clay from between the auger blades.

On May 20, 1996, while cleaning the pug mill trough, Walk’s hand became

entangled in the auger, which pulled his arm into the machine. Co-workers and medical
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personnel were unable to remove Walk’s arm from the machinery, and it was necessary

to amputate the arm at the site of the accident.

Walk filed suit against Starkey, alleging negligence and strict liability based upon

the unreasonably dangerous condition of the pug mill. The district court granted

Starkey’s motion for summary judgment, holding that Walk’s claim was barred by the

doctrine of primary assumption of the risk.

II.

We review a grant of summary judgment de novo. See Sperry v. Bauermeister,

Inc., 4 F.3d 596, 597 (8th Cir. 1993). In so doing, “[w]e must decide whether the

record, when viewed in the light most favorable to [Walk], the nonmoving party, shows

that there is no genuine issue of material fact” and that Starkey is entitled to judgment

as a matter of law. See id. (citing Cole v. Bone, 993 F.2d 1328, 1331 (8th Cir. 1993)).

When the material facts are undisputed, and “reasonable people can draw only one

conclusion, assumption of the risk is a question of law for the court.” Andren v. WhiteRodgers Co., 465 N.W.2d 102, 105 (Minn. Ct. App. 1991). In this diversity case, we

review the district court’s interpretation of Minnesota law de novo. See Salve Regina

College v. Russell, 499 U.S. 225, 231 (1991); Kaplon v. Howmedica, Inc., 83 F.3d

263, 266 (8th Cir. 1996).

The sole issue in this appeal is whether the district court properly applied the

doctrine of primary assumption of the risk. “[P]rimary assumption of the risk applies

when a plaintiff manifests his or her acceptance of the risk and his or her consent ‘to

undertake to look out for himself and relieve the defendant of the duty.’” Kraft v.

Ingersoll-Rand Co., 136 F.3d 584, 586 (8th Cir. 1998) (internal quotations omitted).

The doctrine is applicable to inherently risky activities. See T.H.S. Northstar Assocs.

v. W.R. Grace and Co., 66 F.3d 173, 176 (8th Cir. 1995). Thus, “[t]he classes of cases

involving an implied primary assumption of risk are not many.” Id. at 176 (quoting
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Springrose v. Willmore, 192 N.W.2d 826, 827 (Minn. 1971)). “The elements of

primary assumption of the risk are that the plaintiff 1) knew of the risk; 2) appreciated

the risk; and (3) voluntarily chose to accept that risk, even though he or she had a

choice to avoid it.” Kraft, 136 F.3d at 586 (citing Andren, 465 N.W.2d at 104-05).

In Andren, the court found that primary assumption of the risk applied when the

plaintiff lit a cigarette and caused a liquid propane gas explosion. 465 N.W.2d at 106.

It found that the plaintiff demonstrated knowledge of the risk by testifying that he knew

gas could explode. He appreciated the risk because he acknowledged that he smelled

gas prior to the explosion. Finally, the plaintiff voluntarily chose to accept the risk by

lighting a cigarette in the gas-filled room when he could have chosen not to smoke. See

id. at 105. See also Goodwin v. Legionville Sch. Safety Patrol Training Ctr., Inc., 422

N.W.2d 46, 50 (Minn. Ct. App. 1988) (finding that a volunteer primarily assumed the

risk by choosing “to encounter a well-known incidental risk of roofing; slipping and

falling off the roof”); cf. Gilbertson v. Tryco Mfg. Co., 492 F.2d 958, 961 (8th Cir.

1974) (finding that pre-Springrose assumption of the risk was not present because

plaintiff did not choose to operate a fertilizer-spraying machine with full knowledge that

its operation was dangerous).

Walk argues that his case is analogous to those cases in which primary

assumption of the risk has been held to be inapplicable. In Peek v. Ostrom, the

Minnesota Supreme Court found that an employee did not primarily assume the risk

when he injured his hand while attempting to clean a running mill-saw. 120 N.W.

1084, 1085 (Minn. 1909). In finding the doctrine inapplicable, the court stressed

plaintiff’s limited experience with sawmills. See id. at 1084 (noting that the plaintiff

was injured on his first day of work, was twenty years old, and had limited work

experience). Because the plaintiff had had such limited experience, the court found that

he could not have appreciated the risk. See id. at 1085; see also Kraft, 136 F.3d at 586

(weighing fact that plaintiff had less than one week experience against applying primary

assumption of the risk); Johnson v. Southern Minn. Mach. Sales, Inc., 442 N.W.2d
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843, 848 (Minn. Ct. App. 1989). In Johnson, the court found that because the

eighteen-year-old inexperienced plaintiff had witnessed his shop teacher and foreman

engage in the same activity that eventually injured him, he could not have primarily

assumed the risk. See id.

Unlike the plaintiffs in Peek, Kraft, and Johnson, Walk was experienced. He

accepted his first job in a clay plant in 1983 and had spent approximately ten years

working in different phases of clay production at the time of the accident. He had been

working in his current position for more than ten months. Although he had observed

his co-workers and supervisor use the same cleaning method, he stated in his deposition

that no one had instructed him to use this method to clean the pug mill. He also stated

that he knew this method was dangerous, was told that it was dangerous, and that based

upon his own experience he believed that the trough could be adequately cleaned with

the auger disengaged.

Moreover, Walk knew that the auger was running and that it was capable of

injuring him. Indeed, he acknowledged that his fingers had been nicked by the auger

blades on at least two earlier occasions while he was cleaning the trough while the

auger was running. In Kraft, we stated that the plaintiff’s belief that the equipment was

disconnected from its power source was the most significant factor making primary

assumption of the risk inapplicable. 136 F.3d at 586. Here, it is undisputed that Walk

placed his hand in the trough knowing that the auger was engaged and knowing that the

moving blades posed a substantial risk of injury to him. Accordingly, the district court

did not err in holding that Walk had assumed the risk of such an injury.

The judgment is affirmed.
4Today’s ruling further serves to denigrate a plaintiff’s right to a trial by jury.

This right serves as a basic reason that the application of the doctrine of primary

assumption of risk is rare and seldom used.

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LAY, Circuit Judge, dissenting.

The majority opinion, in all due respect, misconstrues Minnesota law. The

Minnesota courts have drawn a bright line between primary and secondary assumption

of risk. The Supreme Court of Minnesota has cautioned that the classes of cases

involving an implied primary assumption of the risk are limited and uncommon. See,

e.g., Springrose v. Willmore, 292 Minn. 23, 24, 192 N.W.2d 826, 827 (1971);

Goodwin v. Legionville Sch. Safety Patrol Training Ctr., Inc., 422 N.W.2d 46, 50

(Minn. Ct. App. 1988). Yet in today’s decision, the majority obliterates the bright line

and has ignored the cautionary language contained in Minnesota law. The pernicious

evil of such a precedent will do nothing more than confuse the trial bar of Minnesota.4

Minnesota law recognizes two types of assumption of the risk--primary and

secondary. Andren v. White-Rodgers Co., 465 N.W.2d 102, 104 (Minn. Ct. App.

1991). Primary assumption of the risk applies where the 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” and the plaintiff is

barred from recovery. Olson v. Hansen, 299 Minn. 39, 44, 216 N.W.2d 124, 127

(1974). Primary assumption of the risk is inapplicable where the defendant’s conduct

enlarges the inherent risk. Rusciano v. State Farm Mut. Auto Ins. Co., 445 N.W.2d

271, 273 (Minn. Ct. App. 1989). Under Minnesota law, before primary assumption of

the risk applies, the plaintiff must first manifest consent to relieve the defendant of the

obligation of reasonable conduct, and “[i]t is not every deliberate encountering of a

known danger which is reasonably to be interpreted as evidence of such consent.”

Iepson v. Noren, 308 N.W.2d 812, 815 (Minn. 1981) (quoting W. Prosser, Handbook
5Secondary assumption of risk is a form of contributory negligence that bars

recovery only to the extent the jury finds comparative fault in the plaintiff’s assumption

of the risk. T.H.S. Northstar Assoc. v. W.R. Grace and Co., 66 F.3d 173, 176 (8th Cir.

1995). 

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of the Law of Torts § 68 (4th ed. 1971)). Secondary assumption of the risk “is an

affirmative defense to an established breach of duty which may only be raised when the

plaintiff has voluntarily chosen to encounter a known and appreciated danger created

by the negligence of the defendant.” Wagner v. Thomas J. Obert Enters., 396 N.W.2d

223, 226 (Minn. 1986) (citation omitted).5

In applying the doctrine of primary assumption of risk to the facts of the present

case, the majority basically overlooks that “[t]he manifestations of acceptance and

consent dictate whether primary or secondary assumption of the risk is applicable in

a given case.” Andren, 465 N.W.2d at 105. Assumption of the risk differs from

contributory negligence, which is based on carelessness, “by being an exercise of

intelligent choice.” Beckman v. V.J.M. Enters., 269 N.W.2d 37, 39 (Minn. 1978)

(citation omitted). Under Minnesota law, to establish assumption of the risk, in either

the primary or secondary sense, the defendant must show that the plaintiff (1) had

knowledge of the risk; (2) had an appreciation of the risk; and (3) had a choice to avoid

the risk but voluntarily chose to chance the risk. Andren, 465 N.W.2d at 104-05.

Walk concedes that the first element of assumption of the risk was met. He

admits that he had knowledge of the risk that he could sustain serious injury if his hand

came into contact with the auger blades. However, he maintains that neither the second

nor third elements were met. Walk contends that he did not appreciate the risk because

although he knew that if he stuck his hand into the auger he risked serious injury, he did

not appreciate that if his scraper got caught on the trough while he was doing a routine

part of his job that the blades could grab his scraper and hand and pull them further into

the machine. Nor did he voluntarily assume the risk, he argues, because although the
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machine could have been turned off before cleaning, he kept it running because that

was the way he was taught to do it, and the way that he and his supervisors had been

doing it for years. 

This court and Minnesota courts have found that primary assumption of the risk

did not apply in situations where the plaintiff had performed the injury-causing action

in the past without incident or had seen others do it without incident. First, in

Piotrowski v. Southworth Prods. Corp., 15 F.3d 748 (8th Cir. 1994), this court found

that secondary rather than primary assumption of risk was involved where the plaintiff

jumped on top of a wet lift table to get the wheels rolling, fell from the table and

suffered permanent injuries. We held that the plaintiff “did not have actual knowledge

of a known risk and he did not make the choice to chance the risk rather than avoid it.

[Plaintiff] and other employees had similarly stood or stomped on the lift table without

incident for seven months.” Id. at 753. 

In another case, Kraft v. Ingersoll-Rand Co., 136 F.3d 584 (8th Cir. 1998), this

court reversed the district court’s grant of summary judgment where an employee of

a sugar beet processor brought suit against the manufacturer of a beet piler after she

was injured while standing inside a gap in the machine that should have been covered.

Although the court noted the plaintiff’s inexperience, the court also considered the fact

that the plaintiff had placed her hands and a shovel into this gap before without

incident. Id. at 586. 

Similarly, the Minnesota Court of Appeals has held that primary assumption of

the risk did not apply where a plaintiff cut his fingers off while using a table saw

without a blade guard to make freehand cuts. Johnson v. Southern Minn. Mach. Sales,

Inc., 442 N.W.2d 843, 848 (Minn. Ct. App. 1989). In so holding, the court emphasized

the fact that the plaintiff was performing the cutting in the same way his foreman had

instructed him and in the same way he had seen his foreman and former shop teacher

make freehand cuts. Id.
6This case was decided before Minnesota separated assumption of the risk into

two separate doctrines. 

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Finally, the Supreme Court of Minnesota found that secondary rather than

primary assumption of risk was applicable in a case where a group of young adults

attended races at Brainerd International Raceway (BIR). Rieger v. Zackowski, 321

N.W.2d 16 (Minn. 1982). After the races, the plaintiff, along with several of his friends

and other spectators, jumped a fence to enter the racetrack after the races had

concluded and non-racers were driving their cars around the track. Id. at 23. Plaintiff

was hit by one of the cars and severely injured. Id. at 19. BIR argued that primary

assumption of the risk was applicable to bar recovery because the plaintiff had jumped

the fence and entered the racetrack. The court rejected this argument and found that

secondary assumption of risk was more applicable to the facts, noting that the plaintiff

saw others jump the fence and enter the racetrack. Id. at 23. The court found that BIR

had breached its duty to prevent access to the racetrack. Id. at 24.

In granting summary judgment in the present case, the district court emphasized

that Walk could have avoided the danger because Walk’s employer did not criticize its

employees for turning off the machine to clean it: “Continental did not criticize its

employees for turning off the power to the auger. . . . There is no testimony that the

employer required Mr. Walk to clean the pug mill while the auger was engaged.” Walk

v. Starkey Machinery, Inc., No. 96CIV1052 (D. Minn. May 7, 1998) (order granting

summary judgment). 

Again, the Supreme Court of Minnesota has considered a similar fact and

rejected the application of primary assumption of the risk. In Peek v. Ostrom, 107

Minn. 488, 120 N.W. 1084 (1909),6 the court held that assumption of the risk was

inappropriate and reversed the trial court’s grant of judgment notwithstanding the

verdict for the defendant where the plaintiff’s hand was cut by a splitting saw while he

cleaned the chute that surrounded the revolving saw. The court, however, noted that
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the plaintiff was inexperienced, had not been instructed not to clean out the chute, and

that others who had operated the saw found it necessary to clean the area around the

saw in the same way. Id. at 490, 120 N.W. at 1084. The court emphasized that the

plaintiff did not appreciate the danger. Id.

Although several of the cases discussed above emphasized the plaintiff’s

inexperience when finding primary assumption of risk inapplicable, the fact that Walk

was experienced in this case should not necessarily mean that he appreciated the risk

and voluntarily chose to undertake it. If anything, his experience in cleaning these

machines would reinforce that it was proper to clean them while they were running

because it was his and others’ routine method of performing the task. Furthermore,

whether one is sufficiently “experienced” to appreciate a risk is a factual issue, not a

legal one; this issue is best left to the trier of fact and as such belongs exclusively to a

jury.

In light of these cases, it should be obvious that the majority’s application of

primary assumption of risk is not faithful to Minnesota law. Furthermore, its

application of this doctrine slights the factual circumstances under which the plaintiff

lost his arm. The plaintiff did not place his hand and arm directly into the auger blades.

This accident would not have occurred if his scraper, which he was using to clean the

blades, had not caught on the trough. This was not a risk that plaintiff could anticipate

or in any way appreciate. Yet, the majority urges that the plaintiff should have fully

appreciated the risk involved. The risk involved was not directly placing his arm into

the machinery, but rather was the inadvertent act whereby the scraper he was holding

got caught in the trough and then pulled his hand and arm into the machinery.

Although Walk was experienced and knew he could have turned the auger off

before he cleaned the machine, Walk had left the auger running while performing this
7The district court found and the majority agrees that Walk appreciated the risk

of getting caught in the auger because he had experienced close calls in the past when

he dropped the scraper into the mill. Walk argues in his brief, however, that his

accident did not occur because he dropped his scraper. Walk claims he did not drop his

scraper, but rather, that the scraper got caught on a groove in the trough. He maintains

that he did not appreciate this risk. 

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task in the past without incident.7 Cleaning the machine was part of his routine, daily

tasks. Furthermore, his co-worker and supervisor also cleaned the machine with the

auger blades running without incident. As such, it does not appear that Walk released

the manufacturer of its duty or voluntarily consented to the risk of having his arm

entangled by cleaning the machine with a scraper while it was running, as he and others

had done routinely in the past. Under Minnesota law, the district court should have

allowed a jury to decide whether Walk assumed the risk in the secondary sense and,

if so, to apportion fault.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.