## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 31 2000 

### PATRICK FISHER Clerk 

### PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

FRANK H. FEICHKO, JR., Plaintiff-Appellant,

v. DENVER & RIO GRANDE WESTERN RAILROAD COMPANY; THE SOUTHERN PACIFIC TRANSPORTATION COMPANY, a Delaware corporation, Defendants-Appellees, No. 98-4154

Appeal from the United States District Court

for the District of Utah (D.C. No. 95-CV-1068)

John J. Rossi of Rossi, Cox, Kiker & Inderwish, Aur ora, Colorado (Janet Stansberry Drake of Rossi, Cox, Kiker & Inderwish, Aurora, Colorado; and Richard I. Ashton of Ashton, Braunberger & Boud, Sandy, Utah, with him on the briefs), for Plaintiff-Appellant. Casey K. McGarvey (E. Scott Savage with him on the briefs) of Berman, Gaufin, Tomsic, Savage & Campbell, Salt Lake City, Utah, fo r Defendants-Appellees.

Before SEYMOUR , Chief Judge, BRORBY and EBEL , Circuit Judges.

SEYMOUR , Chief Judge.1 The events giving rise to this lawsuit took place in January 1993.

Subsequently, the BIA was repealed and recodified w ithout substantive change as 49 U.S.C. § 20701. See Pub.L. No. 103-272, 108 Stat. 745 (1994). This opi nion will refer to the BIA as it was codified in 1993.

2 The district court granted summary judgment for SP on the ground that Mr. Feichko was not an employee of SP. Mr. Feichko does not challenge this ruling on appeal and therefore we do not address it . Thus, only D&RGW is properly before this court as an appellee. -2- Frank H. Feichko originally brought this action in state court against his employer, the Denver & Rio Grande Western Railroad (D&RGW), and the Southern Pacific Transportation Company (SP) for in juries he sustained while he was standing in a parked D&RGW locomotive that was struck by a moving SP locomotive. Mr. Feichko asserted three claims agai nst each defendant, seeking damages under the Federal Employer’s Liability Act (FELA), 45 U.S.C. §§ 51 et
seq ., the Boiler Inspection Act (BIA), 45 U.S.C. §§ 23 et seq. , 1 and common law negligence. Defendants removed the case to federal district cou rt and moved for partial summary judgment. Mr. Feichko moved to remand on the ground that the first two claims were not removable under 28 U.S.C. § 144 5(a), which prohibits the removal of FELA claims filed in state court. The d istrict court dismissed the FELA and BIA claims against D&RGW and all claims ag ainst SP as a matter of law, and then denied the motion to remand. 2 After extended discovery, the court granted D&RGW’s motion for summary judgment on the remaining common law-3-

negligence claim. See Feichko v. Denver & Rio Grande Western R.R. , 13 F. Supp.2d 1212 (D. Utah 1998). Mr. Feichko appeals and we affirm.

I In January of 1993 Mr. Feichko, a locomotive engine er for D&RGW, came to the D&RGW property on his day off to look for a checkbook he thought he might have left there during the previous day’s shi ft. He was directed to two D&RGW workmen who were cleaning locomotives. They told him they had not seen the checkbook and suggested he look in the parked engines. Mr. Feichko did so. While he was on board one of the parked engine s, a moving locomotive collided with it, knocking him into the control sta nd and console and causing him serious injuries. The moving engine was owned by S P and operated by D&RGW employees at the time of the accident. Mr. Feichko sought recovery under the FELA, contend ing that his employer breached its statutory duty to provide him a reason ably safe place to work, safe equipment, and safe procedures. He also claimed un der the BIA for breach of the statutory duty to maintain the brakes of the moving locomotive in a safe condition. Finally, Mr. Feichko asserted claims of common law negligence, alleging that defendants violated their statutory d uties under the above acts and were negligent in their operation of the moving loc omotive and in failing to warn3 Section 1441(b) provides that when original federa l jurisdiction is based

on diversity of citizenship, the action is “removab le only if none of the parties in interest properly joined and served as defendants i s a citizen of the State in which such action is brought.” Mr. Feichko was a citizenof Utah. Defendant D&RGW was a Delaware corporation with its principle place of business in Colorado, and SP was a Delaware corporation with its principle pl ace of business in California. The requirements for removal under section 1441(b) were thus met.

4 The BIA does not create an independent cause of ac tion for personal injuries, and such an action must therefore be brou ght pursuant to the FELA. See Urie v. Thompson , 337 U.S. 163, 188-89 & n.30 (1949); O’Loughlin v. National R.R. Passenger Corp. , 928 F.2d 24, 26 n.3 (1st Cir. 1991). -4- him that the collision was imminent. Defendants removed the case to federal district cou rt under 28 U.S.C. § 1441(b), which provides for the removal of cases wh ere the federal court has original jurisdiction on the basis of diversity of citizenship. 3 Mr. Feichko moved to remand the action to state court, arguing that i t was not removable under 28 U.S.C. § 1445(a), which provides that “[a] civil ac tion in any State court against a railroad or its receivers or trustees, arising unde r [the FELA] may not be removed to any district court of the United States.” Id. 4
The federal district court determined that Mr. Feic hko had failed to establish the elements of a claim under either the FELA or the BIA and that he had failed to show he was an employee of SP. The c ourt then ruled that since neither the FELA nor the BIA claims could stand, th ose claims need not be remanded. The court further held that the common l aw negligence claim was properly removed and was not subject to remand. Ina subsequent ruling, the-5-

court granted summary judgment for D&RGW on Mr. Fei chko’s negligence claim, concluding that D&RGW owed him no duty under the ci rcumstances. On apeal, Mr. Feichko contends that material issues of fact exist regarding whether his claim falls within the scope of the fed eral statutes, and that the district court improperly decided disputed issues o f fact in granting summary judgment on his common law negligence claim. Altho ugh Mr. Feichko did not raise the denial of his motion to remand, we were c oncerned that the matter might present a question of subject matter jurisdiction. We therefore directed the parties to submit supplemental briefing on whether this case was properly removed in view of section 1445(a) and, if not, whe ther we have subject matter jurisdiction to consider the case. As discussed be low, we are satisfied that federal subject matter jurisdiction is present. Moreover, our review of the merits persuades us the district court’s disposition was c orrect.

II The district court addressed Mr. Feichko’s motion t o remand together with defendants’ motion for summary judgment. The courtgranted the defendants partial summary judgment, concluding on the undisputed facts that Mr. Feichko was not acting within the scope of his employment at the time of his injuries and that his claims under the FELA and the BIA were the refore not sustainable as a-6-

matter of law. The court also denied the motion to remand, notwithstanding section 1445(a), based on its ruling that neither s tatutory claim could stand. In his supplemental brief, Mr. Feichko contends the court erred in reaching the merits because removal of a FELA case is barredby section 1445(a). Defendants maintain that denial of the motion to re mand was proper under these circumstances, pointing to cases holding that such a denial is permissible when the district court determines that the plaintiff’s claims are baseless in law and fact. See Yawn v. Southern Ry. , 591 F.2d 312 (5th Cir. 1979); Aldredge v. Baltimore & Ohio R.R. , 20 F.2d 655 (8th Cir. 1927). These holdings are premised on the notion that a defendant seeking removal may “pierce the pleadings” of a lawsuit asserting claims that are ostensibly barredby section 1445(a) to show that the claims have been fraudulently pled to avoid rem oval. Burchett v. Cargill,
Inc. , 48 F.3d 173, 175-76 (5th Cir. 1995) (reviewing ac tion under Jones Act, which incorporates provisions of FELA, including se ction 1445(a) removal bar). Courts applying this exception to section 1445(a), however, have recognized the tension between a defendant’s right to demonstrate the baseless nature of a claim and a plaintiff’s right to choose a state court for um. See Lackey v. Atlantic Richfield Co. , 990 F.2d 202, 207-08 (5th Cir. 1993) (holding dis trict court should have remanded case because defendants failed to mee t burden of demonstrating that Jones Act claim was “undisputedly false”); see also Burchett , 48 F.3d at 176-7-

(cautioning against pretrying a case to determine r emoval jurisdiction). These courts have not always drawn a bright line between assessing whether a statutory claim is so legally baseless as to constitute a fra udulent attempt to prevent removal and assessing whether the plaintiff has mer ely failed to state a claim, a determination otherwise committed to the state courts. We acknowledged in Chacon v. Atchison, Topeka & Santa Fe Ry. , 320 F.2d 331 (10th Cir. 1963), that a fraudulent attempt to evade removal may provide an exception to the operation of section 1445(a), but we concluded that the exception did not apply in that case. [I]t is settled law that a civil action brought in a state court of competent jurisdiction against a railroad company s ubject to the act to recover damages for personal injuries is not ope n to removal to the district court of the United States solely on the g round of diversity of citizenship. And in the absence of any issue of a fraudulent attempt to evade removal, the question whether an action in stituted in the state court is one under the act is to be determine d by reference to the allegations contained in complaint or petition, as the case may be. Id. at 332 (citations omitted). We need not decide he re whether the district court improperly resolved the merits of a claim committedto the state courts instead of remanding the matter. As we discuss below, we holdthat a removal barred by section 1445(a) does not in these circumstances pre sent a matter of subject matter jurisdiction. The issue of improper removal was th erefore waived by Mr. Feichko’s failure to raise it on appeal. We have held as a general matter that-8-

where a suit of which the United States Court may e ntertain original jurisdiction is instituted in the state court and t he defendant obtains its removal, even though the removal is irregular, defective, or unauthorized, and plaintiff acquiesces in such remo val by seeking relief from the United States Court, that court acq uires jurisdiction of the subject matter. American Oil Co. v. McMullin , 433 F.2d 1091, 1094 (10th Cir. 1970) (quoting Parks v. Montgomery Ward & Co. , 198 F.2d 772, 774 (10th Cir. 1952)); see also Donahue v. Warner Bros. Pictures, Inc. , 194 F.2d 6, 10 (10th Cir. 1952) (when suit over which federal district court would have o riginal jurisdiction is brought in state court and defendant obtains wholly unautho rized removal, federal court acquires jurisdiction when plaintiff acquiesces by seeking relief from federal court); Lopata v. Handler , 121 F.2d 938, 940 (10th Cir. 1941) (same). Altho ugh these cases are not of recent vintage, current auth ority indicates they are still good law and are applicable here. The Supreme Court has addressed similar factual cir cumstances in several opinions. In the most recent of these, a case orig inally filed in state court asserting personal injury claims under state law wa s removed to federal court at a time when complete diversity of citizenship did notexist. See Caterpillar Inc. v.
Lewis , 519 U.S. 61 (1996). A prompt remand motion was d enied, the nondiverse parties were thereafter dismissed, and the case pro ceeded to trial and judgment. The appellate court vacated the judgment, concludin g that, absent complete diversity at the time of removal, the district court lacked subject matter-9-

jurisdiction. The Supreme Court reversed, holding that “a distric t court’s error in failing to remand a case improperly removed is not fatal to the ensuing adjudication if federal jurisdictional requirements are met at the time judgment is entered.” Id. at 471. The Court recognized that “the statutory flaw ” caused by the defendant’s failure to meet the requirements for removal remain ed in the history of the case even though complete diversity was subsequently obt ained and subject matter jurisdiction was therefore established before trial commenced. Id. at 475. The Court concluded, however, that adherence to the rul es Congress prescribed to preserve a plaintiff’s choice of forum was outweigh ed by “considerations of finality, efficiency, and economy.” Id. at 476. In this case . . . no jurisdictional defect lingere d through judgment in the District Court. To wipe out the adjudication p ostjudgment, and return to state court a case now satisfying all fed eral jurisdictional requirements, would impose an exorbitant cost on ou r dual court system, a cost incompatible with the fair and unpro tracted administration of justice. Id. at 477. We note that in Caterpillar , unlike the instant case, the plaintiff raised the propriety of removal on appeal and argued that he h ad done all he could to preserve the choice of forum provided him by federa l statute. The Court nonetheless felt that these considerations were ove rcome by the fact that the court had subject matter jurisdiction at the time of judg ment, and by concern for-10-

judicial economy. We believe the same balance shou ld be struck here, particularly in view of the fact that Mr. Feichko d id not renew his challenge to removal on appeal and instead sought relief from th e district court rulings in this

court. The Court in Caterpillar discussed two earlier cases, Grubbs v. General Elec. Credit Corp. , 405 U.S. 699 (1972) andAmerican Fire & Cas. Co. v. Finn , 341 U.S. 6 (1951). The Court found these cases hel pful and they likewise shed light on our inquiry. In Grubbs , although the plaintiff did not move to remand, the Court of Appeals sua sponte concluded that the removal was not authorized by statute and that the case should therefore be reman ded to the state court in which it had originated. The Supreme Court disagreed andconcluded that so long as the district court had jurisdiction at the time it ente red judgment, the validity of the removal procedure could not be raised for the firsttime on appeal. See Grubbs , 405 U.S. at 700.

Longstanding decisions of this Court make clear . . . that where after removal a case is tried on the merits w ithout objection and the federal court enters judgment, the issue insubsequent proceedings on appeal is not whether the case was p roperly removed, but whether the federal district court would have h ad original jurisdiction of the case had it been filed in that court. Id. at 702.
In Finn , 341 U.S. 6, the Court similarly referred in dictato prior cases decided by it and by circuit courts-11-

which uphold judgments in the district courts even though there was no right to removal. In those cases the federal tr ial court would have had original jurisdiction of the controversy had itbeen brought in the federal court in the posture it had at the time of the actual trial of the cause or of the entry of the judgment. That is, if the litigation had been initiated in the federal court on the issues a nd between the parties that comprised the case at the time of tria l or judgment, the federal court would have had cognizance of the case . This circumstance was relied upon as the foundation of the holdings. Id. at 16-17 (footnote omitted). In our view, Caterpillar , Grubbs , and Finn all indicate that removal in violation of a statutory provision does not deprive a federal district court of subject matter jurisdiction so long as the court wo uld have had original jurisdiction over the case had it been filed there in the first instance. See Belcufine v. Aloe , 112 F.3d 633, 638 (3d Cir. 1997) (relying on Grubbs and Caterpillarin holding that removal in violation of statute is not jurisdictional and therefore waivable when cause of action could have been brought originally in federal court); Barbara v. New York Stock Exch. Inc. , 99 F.3d 49, 55-56 (2d Cir. 1996) (relying on Grubbs and Finn for same proposition). Indeed, two other circuits have expressly held that a removal in viol ation of section 1445(a) is a waivable non-jurisdictional defect when the federal court could have exercised subject matter jurisdiction had the case originallybeen brought there. See Lirette v. N.L. Sperry Sun, Inc. , 820 F.2d 116 (5th Cir. 1987) (en banc); Carpenter v. Baltimore & Ohio R.R. , 109 F.2d 375, 379-80 (6th Cir. 1940).-12-

In line with the authorities cited above, we likewi se hold that removal in violation of section 1445(a) may be waived by a pla intiff, either by a failure to move the district court to remand, as was the case in Grubbs , or by a failure to raise the matter on appeal, as in the instant case, so long as the district court would have had jurisdiction had the case originallybeen filed there. Accordingly, we have jurisdiction over this appeal.

III The district court granted defendants’ motion for s ummary judgment on the statutory claims, concluding as a matter of law that Mr. Feichko had not made the requisite showing that his injuries occurred while he was acting within the scope of his employment or in furtherance of the railroad ’s interests. On appeal, Mr. Feichko argues that the FELA constitutes broad reme dial legislation which the district court failed to construe liberally, and th at whether the accident occurred within the scope of his employment is a disputed fa ct issue that should be decided by a jury. The FELA provides a remedy for any person suffering injury while he is employed by[a common carrier by railroad] in [interstate] commerce . . . for such injury . . . resulting in whole or in part from the negligence o f any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, . . . or other equipment.-13-

45 U.S.C. § 51. Recovery under the FELA is thus pe rmitted only if the employee’s injury occurred while he was employed bythe railroad, which in turn requires a showing that “the plaintiff was injured in the scope of his employment.” Smith v. Medical & Surgical Clinic Ass’n , 118 F.3d 416, 419 (5th Cir. 1997). Railroad employment has been broadly i nterpreted to extend not only to acts required by the employer, but also to those acts necessarily incidental to the employment. See, e.g. , Rostocki v. Consolidated Rail Corp. , 19 F.3d 104, 106 (2d Cir. 1994) (FELA covers injuries suffered durin g activities necessarily incidental to employment); Wilson v. Chicago, Milwaukee, St. Paul, & Pac. R.R. , 841 F.2d 1347, 1355 (7th Cir. 1988) (act could be w ithin scope of employment if a necessary incident of the day’s work). This circuit and others have nevertheless held thateven “given its most liberal interpretation, the Act cannot be extended to cover activities not necessarily incident to or an integral part of empl oyment in interstate commerce. It obviously does not cover activities undertaken b y an employee for a private purpose and having no causal relationship with his employment.” Atchison, Topeka & Santa Fe Ry. v. Wottle , 193 F.2d 628, 630 (10th Cir. 1952); see also Smith , 118 F.3d at 419 (citing Wottle ); Rostocki , 19 F.3d at 106 (same); Wilson , 841 F.2d at 1355 (same). The district court here applied Wottle and concluded that Mr. Feichko “was not acting within the scope o f his employment pursuant to5 Mr. Feichko asserts for the first time on appeal that he had been called to

work on the day of the accident and was on the rail road’s property in response to that call. In support of this assertion, he offers a statement he made in a deposition taken almost ten months after the court granted summary judgment to defendants on the FELA and BIA claims. Mr. Feichko ’s argument is unacceptable. First, the argument and evidence wer e not before the district court at the time it ruled on the summary judgment motion . In reviewing a grant of summary judgment, our inquiry is limited to the sum mary judgment record before (continued...) -14- any duties or in furtherance of the railroad’s inte rest when the injuries were sustained.” Aplt. App. at 97. The court held thatMr. Feichko’s search for his missing checkbook was an activity with a private pu rpose having no causal relationship with his employment, that the search w as not done under the direction and authority of the employer, and that t he employer could not have reasonably foreseen the search and did not benefit from it. Mr. Feichko contends the district court erred in making this determination as a matter of law, asserting that the question mus t be decided on its particular facts and citing cases in which the issue was prese nted to the jury. The cases Mr. Feichko cites are all distinguishable because they contain factual disputes material to the issue of whether the activity resul ting in the injury was for a purely private purpose or was incidental to the pla intiff’s employment. Here the material facts are not disputed. They reveal that Mr. Feichko was pursuing a purely private activity which was not incidental to his employment and which provided no benefit to his employer. 5 Accordingly, the district court properly5 (...continued)

the district court when the motion was decided. See Allen v. Minnstar, Inc. , 8 F.3d 1470, 1475 & n. 4 (10th Cir. 1993) (citing cas es). We reject Mr. Feichko’s contention that we should make an exception to this rule in the interest of preventing injustice. He has offered no explanatio n for his failure to present this evidence to the district court by way of affidavit in response to defendants’ motion for summary judgment. Moreover, the deposit ion statement is ambiguous as to whether Mr. Feichko was in fact called to work on Sunday, the day before the accident, or on Monday, the day of the accident . Under these circumstances, we see no reason to depart from our caselaw by cons idering this newly offered evidence in assessing the propriety of the summary judgment granted on the statutory claims.

6 Because the BIA is considered in substance an amen dment to the FELA and enforced under that Act, see Urie v. Thompson , 337 U.S. 163, 188-89 (1949), Mr. Feichko’s failure to establish that he was acti ng within the scope of his employment at the time of the accident is dispositi ve of his claim under both statutes. -15- granted summary judgment to defendants on the statutory claims. 6 In a subsequent ruling, the district court granted summary judgment for D&RGW on Mr. Feichko’s common law negligence claim, holding that Mr. Feichko was a licensee under Utah law and that the railroad owed him no duty under the circumstances. See Feichko , 13 F. Supp.2d at 1214-15. The court pointed out that Utah has adopted the RESTATEMENT (S ECOND ) OF T ORTS § 341 (1965), under which a landowner owes no duty of car e to a licensee who knows the nature of the activities conducted on the land and the manner in which they are conducted. Id. at 1214 (quoting § 341 cmt. a). The court conclude d as a matter of law that Mr. Feichko, as an experienced r ailroad engineer, had the requisite knowledge, and rejected his argument thathe did not assume the risk-16-

that the railroad would conduct its activities negl igently. The court held that adopting Mr. Feichko’s construction of the landowne r’s duty to a licensee “would effectively eliminate the traditional rules limitin g recovery on the part of such licensees by applying a negligence standard any tim e negligence might have occurred.” Id. at 1215. Mr. Feichko asserts that the district court erred b y assuming the extent of his knowledge and by in effect ruling that he shoul d have anticipated the negligent conduct of the railroad. We disagree. T he Utah courts have followed the RESTATEMENT (S ECOND ) OF T ORTS , under which a property owner’s duty to a person injured on his property is determined by that person’s status on the property as either an invitee, a licensee, or a tre spasser. See Pratt v. Mitchell Hollow Irrigation Co. , 813 P.2d 1169, 1172 (Utah 1991); Tjas v. Proctor , 591 P.2d 438, 441 (Utah 1979). Mr. Feichko does not di spute the fact that his status at the time of his injury was that of a licensee. Section 341 of the Restatement governs the liability of a landowner to a licensee for activities conducted on the land and provides: A possessor of land is subject to liability to his licensees for physical harm caused to them by his failure to carry on his activities with reasonable care for their safety if, but only if, (a) he should expect that they will not discover orrealize the danger, and (b) they do not know or have reason to know of the possessor’s activities and of the risk involved.7In a statement recorded after the accident, Mr. Fe ichko admitted that he

had been involved in other impacts during his railr oad career. See Aplt. App. at 52. He further stated by deposition that he had se en collisions that had knocked windows open, water off water coolers, and cars ont o the ground. See id. at 152. He also testified that he had been involved in situ ations in which he had applied the brakes in a locomotive and the engine had slid, and that he had been on an engine that slid in the cold snow as had apparentlyhappened in the accident at (continued...) -17- RESTATEMENT (S ECOND ) OF T ORTS § 341. The comments to that section provide additional gui dance on its application, stating: If a [licensee] knows of the nature of the activiti es conducted upon the land and the manner in which they are conducted , he has all that he is entitled to expect, that is, an opportunity f or an intelligent choice as to whether or not the advantage to be gai ned by coming on the land is sufficient to justify him in incurring the risks involved. Id. cmt. a. Significantly, the commentary further pro vides: The possessor, therefore, is not required either to refrain from or to give warning of activities dangerous to the license e if they are, to the knowledge of the licensee, so customarily carried o n upon the land that the licensee should be on the alert to discove r and avoid them. Id. cmt. d. It is undisputed that Mr. Feichko was an experience d railroad engineer who knew the activities customarily carried on in a rai lroad yard and the risks those activities presented. Indeed, the D&RGW safety rul es and Mr. Feichko’s own statements establish that he knew collisions such a s the one at issue here regularly occur in the course of railroading activity. 7We agree with the district court that7 (...continued)

issue. See id. at 158-61.

8 Mr. Feichko cites numerous cases in support of his argument, all of which are factually distinguishable. His reliance on Kurn v. Stanfield, 111 F.2d 469 (8th Cir. 1940), is misplaced. There the plaintiff brou ght an action under the FELA for injuries he sustained while acting as an employ ee. The case thus says nothing about a railroad’s duty to a licensee. Marchello v. Denver & Western Rio Grande R.R. , 576 F.2d 262 (10th Cir. 1978), and Madison v. Deseret Livestock Co. , 574 F.2d 1027 (10th Cir. 1978), are likewise inapposite as both considered the application of section 342 of the Restatement, whic h addresses dangerous conditions rather than the dangerous activities cov ered by section 341. In any event, section 342 applies only when “the licensees do not know or have reason to know of the condition and the risk involved.” RESTATEMENT (S ECOND ) OF T ORTS § 342(c). Connor v. Union Pac. R.R. , 972 P.2d 414 (Utah 1998), addresses the application of a narrow exception to RESTATEMENT ( SECOND ) OF T ORTS § 334 under which a landowner may owe a duty of care to an habitual trespasser. It thus does not address the circumstances here. Other cas es cited by Mr. Feichko are similarly unpersuasive as they involve a landowner’ s duty to trespassers or a railroad’s duty to employees. -18- Mr. Feichko’s argument would, contrary to the expre ss language of the Restatement and its commentary, render a landowner liable to a licensee for negligence despite the licensee’s knowledge of the nature of the landowner’s activity and the risk involved. 8 Section 341 and its commentary clearly provide that a landowner owes no duty to a licensee to cond uct his activities with reasonable care if the licensee knows the nature of those activities and the risks involved. Accordingly, we conclude that summary ju dgment was properly granted against Mr. Feichko on his common law negligence cl aim. In sum, we AFFIRM the judgment of the district court.