                     United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT

                                  ___________

                                  No. 02-1554
                                  ___________

Robert Reimer, Susan Reimer,              *
individually and as husband and wife,     *
                                          *
             Plaintiffs - Appellants,     *
                                          * Appeal from the United States
      v.                                  * District Court for the District
                                          * of Minnesota.
City of Crookston, Crookston Public       *
School District #593, Johnson             *
Controls, Inc., KRISS Premium             *
Products, Inc.,                           *
                                          *
             Defendants - Appellees.      *
                                          *
                                     __________

                           Submitted: October 11, 2002
                              Filed: April 10, 2003
                                  ___________

Before LOKEN,1 Chief Judge, BEAM, and MELLOY, Circuit Judges.
                              ___________

MELLOY, Circuit Judge.

      In March, 1998, Robert Reimer was severely burned while examining a low-


      1
       The Honorable James B. Loken became Chief Judge of the United States
Court of Appeal for the Eighth Circuit on April 1, 2003.
pressure boiler used to heat a swimming pool owned by the Crookston Public School
District (“School District”) and jointly operated with the City of Crookston (“City”).
At the time of the accident, Mr. Reimer was an employee of Gibb & Sons, Inc., a
boiler repair company. In this diversity action, Mr. Reimer and his wife sought
damages based on the alleged negligence of the School District, the City, and two
companies, Johnson Controls, Inc., and KRISS Premium Products, Inc. (“KRISS”),
which serviced the pool facilities pursuant to contracts.


       The district court granted summary judgment to all the defendants, holding they
owed no duty of care to Mr. Reimer because his injury resulted from an open and
obvious danger. Alternatively, the district court held that Mr. Reimer assumed the
risk of his injury when he agreed to examine the boiler. After a careful review of
Minnesota law in this area, we affirm in part and reverse in part. We agree that
Johnson Controls and KRISS owed no duty of care to Mr. Reimer. As to the School
District and City, however, we find genuine issues of material fact preclude summary
judgment in their favor.


                                          I.


       This case involves a serious accident which occurred when Mr. Reimer, the
plaintiff-appellant, was examining a school swimming pool boiler that reportedly was
leaking. While Mr. Reimer was conducting an ultrasound test on the boiler, his knee
accidentally brushed up against a corroded pipe, or “nipple,” which was screwed into
the boiler vessel via a welded fitting hole called a “bunghole.”2 The corroded nipple
broke off and Mr. Reimer was severely burned over much of his body. Few facts
remain uncontested by the parties. For summary judgment purposes, however, we

      2
       When the boiler is drained, the nipple is unscrewed and removed so that water
can flow freely out of the boiler through the bunghole.

                                         -2-
recite the facts in the light most favorable to Mr. Reimer. Offerdahl v. Univ. of Minn.
Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988).


       The Crookston municipal swimming pool is jointly operated by the City and
School District pursuant to a joint powers agreement. The School District owns the
pool building and boiler, and is responsible for “routine maintenance and boiler
checks.” See Financial Responsibility Statement, City Supp. App. at 92. “Major
capital expenses associated with maintenance, repair and replacement” of pool related
items (such as, e.g., pumps, water filtration system, plumbing) are shared by the two
entities, as are “major building improvements and equipment purchases.” See id.
Significant decisions concerning the boiler at the pool are subject to final
authorization by the Board of Education. The School District has a contract with
Johnson Controls to provide some maintenance services for the swimming pool boiler
and other boilers at School District facilities. KRISS supplies boiler water chemicals
to the swimming pool.


       At some point during the 1997-98 school year, Ken Stromberg, the pool
director, noticed some moisture on the floor of the boiler room near the rear left side
of the boiler. Mr. Stromberg informed Ray Nelson and Bill Brinkman of his
observation. Mr. Nelson was the head custodian in charge of the pool facilities,
including the boiler, and, as such, was a licensed boiler engineer. Mr. Brinkman was
the School District’s business director. Mr. Nelson called Mr. Reimer at Gibb & Sons
and told him that the pool boiler was “leaking in the tubes,” and that “there was a leak
in the back of the boiler.”3 Mr. Reimer had worked for Gibb & Sons for about ten

      3
         According to Mr. Reimer, the fact that internal tubes in the boiler were
leaking did not suggest any sort of extraordinary problem. Reimer aff. at ¶ 5-6.
Rather, Mr. Reimer avers, these tubes are often replaced several times during the life
of a boiler because the tubes’ walls are thinner than any other elements on the boiler.
Id.

                                          -3-
years and was considered to be a boiler repair expert.             His duties included
troubleshooting on commercial boilers.


      Some time passed before Mr. Reimer could get to the school to follow up on
Mr. Nelson’s phone call. The parties dispute how long this period was, perhaps as
long as months. In the meantime, it is assumed that the boiler continued to leak.


       On the afternoon of March 10, 1998, John King of Johnson Controls was at the
Crookston swimming pool for contract-related maintenance work. He testified that
during his visit Mr. Nelson asked him to tighten the nipple located on the lower left
rear of the boiler which, according to Mr. King, was “dripping a little bit or a little
wet.” King dep. at 76. Mr. King refused to tighten the nipple because it was
corroded and appeared unsafe. He could not say precisely how much corrosion was
visible but it was “enough to know that it wasn’t something to put a wrench on.” Id.
at 75.


       That evening at seven p.m., Mr. Reimer arrived to examine the boiler. Based
on Mr. Nelson’s suspicion that the boiler needed retubing, Mr. Reimer had brought
along ultrasound equipment. An ultrasound test is a diagnostic procedure which
measures the integrity of the metal comprising the boiler vessel. With this
information, Mr. Reimer could advise the School District as to whether retubing the
boiler would suffice or whether the boiler should be completely replaced.


       It is not necessary that the boiler be “hot” or operational for the ultrasound test
to be effective. An ultrasound works equally well on a cold, or even empty, boiler.
In this instance, Mr. Reimer did not direct Mr. Nelson to cool down the boiler prior




                                           -4-
to beginning the examination.4 To conduct the test, Mr. Reimer and Mr. Nelson first
pulled back an outer sheet metal cover so that the boiler vessel itself was accessible.
Then, while Mr. Nelson held a “trouble light,” Mr. Reimer selected several spots on
the boiler vessel to lightly “grind down” in order to remove any rust and millcoat,
thereby providing a smooth surface for testing.5 One of the spots he chose was
relatively close to the nipple on the lower left rear of the boiler. At one point, while
grinding in this area, Mr. Reimer felt that he did not have complete control of the
grinder. He attempted to reposition himself and, in so doing, his left knee
accidentally brushed against the corroded nipple. This caused the nipple to break out
of the bunghole, releasing the pressurized hot water and steam from inside the boiler.
As a result, Mr. Reimer sustained scalding water and steam burns over sixty-seven
percent of his body.


      Mr. Reimer and his wife sued the School District, the City, Johnson Controls
and KRISS, alleging their negligence led to his injury. The district court granted the
defendants’ motions for summary judgment. This appeal followed.


                                            II.


        “Summary judgment is appropriate only when there is no genuine issue of


        4
            Once the boiler was turned off, it would have taken several hours to cool
down.
        5
       Mr. Reimer describes the ultrasound test as a “noninvasive” procedure
because it does not entail contact with the interior of the boiler. Reimer aff. at ¶ 13.
We think it prudent to note that whether the ultrasound test is properly deemed
noninvasive is a question of fact subject to jury determination. For purposes of
summary judgment, however, we accept Mr. Reimer’s characterization of the
procedure. See Offerdahl, 426 N.W.2d at 427.

                                            -5-
material fact and the moving party is entitled to judgment as a matter of law.” Viking
Supply v. Nat’l Cart Co., 310 F.3d 1092, 1095 (8th Cir. 2002). “We review a district
court’s grant of summary judgment de novo, giving the nonmoving party the most
favorable reading of the record as well as the benefit of [all] reasonable inferences
that arise from the record.” Gentry v. Georgia-Pacific Corp., 250 F.3d 646, 649 (8th
Cir. 2001). In a diversity case, we also review de novo the district court’s
interpretation and application of state law. Viking Supply, 310 F.3d at 1096. In this
diversity matter, Minnesota law guides our analysis of the substantive claims. See
Bennett v. Hidden Valley Golf and Ski, Inc., 318 F.3d 868, 874 (8th Cir. 2003) (“In
a diversity case . . . we must follow state law as announced by the highest court in the
state.”) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)).


       Essential to any negligence claim is the breach of a duty of care owed to the
plaintiff. See Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995) (listing
elements of negligence claim). The district court held as a matter of law that none of
the defendants owed a duty of care to Mr. Reimer, and, alternatively, that Mr. Reimer
assumed the risk of his injury. We will discuss each of these holdings in turn.


                                       A. Duty


       Whether a legal duty exists is generally a question of law to be determined by
the court. ServiceMaster of St. Cloud v. GAB Bus. Servs., Inc., 544 N.W.2d 302,
307 (Minn. 1996); Gabrielson v. Warnemunde, 443 N.W.2d 540, 543 n.1 (Minn.
1989). However, where the existence of a duty turns upon contradicted facts, those
facts must be submitted to a jury for resolution prior to the court’s legal conclusion
on the issue. Id.; Johnson v. Urie, 405 N.W.2d 887, 891 n.5 (Minn.1987).




                                          -6-
1.    The School District and City of Crookston: landowner liability.


       At issue in this case is the duty owed by a possessor of land to the employee
of an independent contractor.6 The duty imposed on a possessor of land who hires
an independent contractor is to inspect the premises for latent or hidden dangers and
then to warn oncomers of those dangers. Conover v. N. States Power Co., 313
N.W.2d 397, 401 (Minn. 1981). That duty extends to employees of independent
contractors hired by the landowner. Id. Although the School District owned the pool
building and the boiler, a written agreement with the City supports a finding, for
summary judgment purposes, that the parties jointly operated the facilities and jointly
shared the indices and liabilities of ownership. Accordingly, although our discussion
will focus on Mr. Reimer’s case against the School District, our analysis and
conclusions with regard to that defendant apply equally to the City.


      In determining a landowner’s duty, Minnesota applies the rule set forth in
Section 343A of the Restatement (Second) of Torts. As explained by the Minnesota
Supreme Court in a slip-and-fall case, Peterson v. W.T. Rawleigh Co., 144 N.W.2d
555 (Minn. 1966):


      In support of its contention that it violated no duty toward the plaintiff,
      defendant asserts . . . that it is not liable for injuries caused by defects


      6
         Liability for injury to an employee of an independent contractor may also be
imposed where the landowner “retain[s] ‘the general control and supervision of the
work.’” Zimmer v. Carlton County Co-op Power Ass’n, 483 N.W.2d 511, 514 (Minn.
Ct. App. 1992) (quoting Thill v. Modern Erecting Co., 136 N.W.2d 677, 684 (Minn.
1965)). The district court found no basis for retained control liability as Mr. Reimer
concedes he was in charge of all aspects of, and decisions pertaining to, examination
of the boiler on March 10, 1998. Mr. Reimer did not challenge this aspect of the
district court’s decision.

                                          -7-
      which were obvious to, and comprehended by, plaintiff. We think the
      better rule is that adopted by Restatement, Torts (2d) s 343A, as follows:

             ‘(1) A possessor of land is not liable to his invitees for
             physical harm caused to them by any activity or condition
             on the land whose danger is known or obvious to them,
             Unless the possessor should anticipate the harm despite
             such knowledge or obviousness.’

W.T. Rawleigh, 144 N.W.2d at 557 (footnote omitted and emphasis added);7 see also
Louis v. Louis, 636 N.W.2d 314, 319 (Minn. 2001) (reaffirming Minnesota’s
adoption of the rule set out in Restatement (Second) of Torts § 343A); Baber v. Dill,
531 N.W.2d 493, 496 (Minn. 1995) (“Thus, even for obvious dangers, a possessor has
a duty to warn if harm to an invitee should be anticipated despite the obviousness of
the danger.”).


      The Minnesota Supreme Court has characterized Section 343A’s “unless”
clause as “a crucial qualifier to the general rule.” Sutherland v. Barton, et al., 570
N.W.2d 1, 7 (Minn. 1997) (citing Adee v. Evanson, 281 N.W.2d 177, 179 (Minn.
1979), and W.T. Rawleigh, 144 N.W.2d at 557-58). However, liability under this
clause does not attach “where the anticipated harm involves dangers so obvious that
no warning is necessary . . . .” Baber, 531 N.W.2d at 496 (emphasis added). As


      7
        In a subsequent case, the Minnesota Supreme Court held that the distinction
between licensees and invitees was no longer determinative of the duty owed by
landowners to entrants, although the status of the entrant may be a factor in assessing
negligence. Peterson v. Balach, 199 N.W.2d 639, 647-48 (Minn. 1972). The court
concluded that a landowner has a duty of reasonable care for the safety of all entrants
other than trespassers. Id. at 642, 647. See also Conover, 313 N.W.2d at 402 (“As
the possessor of land, [the landowner] ha[s] a duty to use reasonable care under the
circumstances then existing, without regard to whether the entrant is a licensee or
invitee.”) (citing Balach, 199 N.W.2d 639).

                                         -8-
acknowledged by the supreme court in Baber, “The difference between open and
obvious dangerous activities and conditions for which the possessor should anticipate
harm and those activities and conditions for which the possessor should not anticipate
harm because they are so open and obvious is a fine one, but one that we choose to
make.” Id.


       Following these principles, Mr. Reimer’s appeal turns on: (1) whether a
reasonable jury could find that the corrosive nipple was a latent or hidden danger
(rather than a known or obvious danger) so that the School District had a duty to warn
Mr. Reimer about it; or (2) even if the dangerous condition presented by the corroded
nipple was known or obvious, whether a reasonable jury could find that the Section
343A exception conditions are met; i.e., that the School District should have
anticipated the harm despite the known or obvious danger.


       The district court concluded that Mr. Reimer’s injury was caused by an obvious
danger, about which the defendants owed no duty to warn. The district court cited
the following facts in support of this conclusion: “Reimer saw that the boiler nipple
was badly corroded, and Reimer knew that the boiler was leaking. Reimer was a
boiler repair expert hired specifically to investigate the problem of the leaking boiler.
The suspect integrity of the boiler posed an inherent danger.” Reimer v. City of
Crookston, et al., No. 00-370, slip op. at 7 (D. Minn. Jan. 16, 2002). Mr. Reimer
argues that evidence in the record refutes the district court’s finding of obviousness.
First, he points to his own testimony that the nipple’s corrosion was not of a type or
magnitude that would have alerted him to the possibility of the nipple breaking off.
And second, he relies on an expert affidavit which opined that the corrosion would
have been much worse on the less visible underside of the nipple than the top and
sides.




                                          -9-
       Testimony and evidence regarding Mr. Reimer’s subjective observations are
not instructive on the issue of obviousness. “[T]he test for what constitutes an
‘obvious’ danger is an objective test: the question is not whether the injured party
actually saw the danger, but whether it was in fact visible.” Louis, 636 N.W.2d at
321 (citing Munoz v. Applebaum’s Food Market, Inc., 196 N.W.2d 921, 922 (Minn.
1972)). Given Mr. Reimer’s testimony that he saw corrosion on the nipple, and his
experience and expertise in the field of boiler repair, we agree that the record
irrefutably establishes that the condition and risk were objectively obvious. See
Restatement (Second) of Torts § 343A, cmt. b (1965)) (explaining that obviousness
determination is made from the perspective of a reasonable person “in the position of
the visitor, exercising ordinary perception, intelligence and judgment”).


       Our analysis does not end there, however. There is nothing in the record to
conclusively indicate that the dangerous condition in this case was “so obvious” as
to preclude application of Section 343A’s “unless” clause, and genuine issues of
material fact remain as to whether the School District should have anticipated the
harm to Mr. Reimer. See, e.g., Louis, 636 N.W.2d at 322 (requiring consideration of
“unless” clause applicability even where known or obvious condition found as a
matter of law). Viewing the evidence in the light most favorable to Mr. Reimer, this
court must accept the following as true: (1) in the course of examining the boiler, Mr.
Reimer saw a nipple with some corrosion on it but no more than he had seen on many
occasions on similar boilers; (2) the corrosion on the nipple was more severe on the
underside of the nipple, close to the bottom of the boiler, than on the top and sides
where Mr. Reimer was more likely to focus given the task he was performing; (3)
conducting an ultrasound does not entail contact with the interior of the boiler or with
the nipples or bungholes on the boiler; (3) Mr. Nelson was aware that the nipple was
corroded because only hours earlier a Johnson Controls employee refused his request
to tighten the nipple because of its corroded and dangerous state; (4) Mr. Nelson
understood the gravity of the danger posed by a nipple with this degree of corrosion


                                         -10-
because he is a licensed boiler engineer; (5) Mr. Nelson saw Mr. Reimer working in
close proximity to the nipple on a procedure that would not necessarily call his
attention to the state of the nipple; and (6) Mr. Nelson did not warn Mr. Reimer about
the corroded nipple or tell him about the concerns raised by Johnson Controls just
hours earlier. On these facts, the School District, through its agent, Mr. Nelson, could
reasonably anticipate that Mr. Reimer would proceed with the noninvasive ultrasound
without making a careful assessment of the condition of the nipple.


       The School District disputes most of the above-recited facts. In our view, such
factual disputes are precisely of the type that preclude summary judgment resolution.
And contrary to appellees’ contention, our holding is consistent with Sutherland v.
Barton, et al., a Minnesota Supreme Court case with some factual similarities. 570
N.W.2d 1 (Minn. 1997). In Sutherland, an independent contractor-electrician was
killed while using a metal tape measure near exposed live buss bars. Id. at 4. It was
undisputed that Sutherland “had worked near live buss bars before and in fact had
warned others of the danger inherent in such a task.” Id. at 7. Moreover, “[o]n the
day of the accident, his supervisor specifically pointed out the live buss bars to
Sutherland.” Id. The supreme court affirmed the district court’s grant of summary
judgment to the employer. See id. at 7-8. The court found that the danger posed by
the live buss bars was open and obvious, that the risk could have been avoided by
turning off the electricity, and that this was not a case where the employer should
have anticipated that the plaintiff would fail to appreciate the risk involved in using
a metal tape measure near live buss bars. See id. at 7.


       As in Sutherland, the plaintiff here had expertise in his field and alternatives
other than confronting the risk. It is undisputed that Mr. Reimer could have ordered
Mr. Nelson to turn off the boiler and let it cool overnight prior to examining it.
However, these facts alone are not sufficient to find as a matter of law that no duty
existed. The relevant inquiry remains whether under the circumstances the School
District should have anticipated harm.


                                         -11-
       As explained by the Sutherland court: “A reason to anticipate the harm may
arise when the landowner ‘has reason to expect that the invitee will proceed to
encounter the known or obvious danger because to a reasonable man in his position
the advantages of doing so would outweigh the apparent risk.’” Sutherland, 570
N.W.2d at 7 (quoting Restatement (Second) of Torts § 343 cmt. f (1965)); see also
W.T. Rawleigh, 144 N.W.2d at 557-58 (characterizing comment f of Section 343A
as “well summariz[ing]” the court’s view). We see a significant qualitative difference
between the risk posed by using a metal tape measure near live buss bars, as in
Sutherland, and conducting what is expected to be a noninvasive diagnostic
procedure on a closed boiler as in the case at bar. Here, a jury could reasonably find
that the apparent risk did not necessarily warrant the alternative–turning off the
boiler. See Conover, 313 N.W.2d at 402 (finding that a jury could properly conclude
that routine inspection procedures of independent contractors would not have
revealed the particular condition that caused harm and would not be reasonably
expected to do so). We also note an important factual distinction between
Sutherland and the instant case. It was undisputed in Sutherland that the plaintiff was
explicitly warned about the dangerous condition that caused his injury–both prior to
and on the very morning of his injury. See Sutherland, 570 N.W.2d at 7; see also
Hamm v. Oak Park Lutheran Church, No. CX-02-354, 2002 WL 31171760 (Minn.
Ct. App.) (unpublished) (affirming grant of summary judgment in favor of defendants
where plaintiff who was electrocuted by power wires knew of the danger of using a
crane near power wires and “the record shows that [plaintiff was] made aware of the
power lines before beginning work that day). In this case, there are significant fact
disputes regarding Mr. Reimer’s actual knowledge of the dangerous condition, even
if it was objectively obvious. Thus, while both Mr. Reimer and Mr. Nelson were
licensed boiler engineers, only one–the School District’s Mr. Nelson–had
particularized information that may have shifted the balance in the Restatement §
343A analysis. No analogous scenario existed in Sutherland.


     Given the conflicting evidence in the record as to what Mr. Reimer and the
School District knew or should have known at the time of the accident, we conclude

                                         -12-
it is for a jury to determine whether this case falls within the “unless” clause of
Restatement § 343A. Construing the record favorably to Mr. Reimer, the evidence
is sufficient to establish that the School District, through its agent, Mr. Nelson, should
have anticipated that Mr. Reimer might fail to appreciate the dangerous condition
posed by the corroded nipple and be injured while examining the boiler.
Accordingly, the record will not permit a summary judgment finding that the School
District lacked a duty of care to Mr. Reimer. Because we deem the City joint owner-
operators of the pool facilities, our conclusion on this issue applies equally to the
City.


2.    Johnson Controls and KRISS:


       Absent landowner status, the existence of a legal duty to act depends on two
factors: (1) the relationship of the parties, and (2) the foreseeability of the risk
involved. Gilbertson v. Leininger, 599 N.W.2d 127, 130 (Minn. 1999); Erickson v.
Curtis Inv. Co., 447 N.W.2d 165, 168-69 (Minn. 1989).8 We agree with the district
court that, as a matter of law, neither Johnson Controls nor KRISS owed a duty of
care to Mr. Reimer under the circumstances of this case. Johnson Controls was
contracted by the School District to provide automatic temperature controls services,
associated air conditioning and heating services, and filter services. The Planned
Service Agreement between the School District and Johnson Controls outlined
specific services to be provided by Johnson Controls, including specific services
related to the boiler. It is undisputed that the contract did not include repair or
maintenance of the boiler nipples nor did Johnson Controls ever work on the nipple
that caused Mr. Reimer’s injury. The mere fact that on occasion Johnson Controls
would do additional non-contract work does not make it responsible for the
deterioration of the boiler nipple or create a duty on its part to anyone down the line

      8
        A court need not look at the foreseeability factor if there is no special
relationship between the parties. Errico v. Southland Corp., 509 N.W.2d 585, 587
(Minn. 1993).

                                          -13-
who may be harmed by the boiler. Nor was a duty created on March 10th when a
Johnson Controls employee refused Mr. Nelson’s request to tighten the corroded
nipple, a task that was not within Johnson Controls’ contractual responsibilities. See
In re Temporomandibular Joint (TMJ) Implants Prods. Liab. Litig., 113 F.3d 1484,
1493 (8th Cir. 1997) (explaining that the threshold inquiry in the “gratuitous
undertaking” duty analysis is whether the defendant specifically undertook the
services allegedly performed). In short, there is no basis in the record to establish that
Johnson Controls owed a duty to Mr. Reimer and the district court properly granted
summary judgment in its favor.


       Summary judgment in favor of KRISS was also proper. Pursuant to a contract
with the School District, KRISS supplied chemicals for use in the swimming pool
boiler to control unwanted mineral levels. Mr. Reimer alleges that KRISS’s negligent
chemical water treatment program caused the corrosion in the boiler. Assuming Mr.
Reimer’s allegation is true, we nevertheless discern no duty on KRISS’ part to Mr.
Reimer. KRISS owed a contractual obligation to the School District to supply
chemicals as necessary for the upkeep of the pool and its boiler. Nothing in that
contractual relationship supports a finding of a duty on KRISS’s part to Mr. Reimer,
an independent contractor who was hired by the School District for consultation
and/or repair of the boiler. Further, at the time of Mr. Reimer’s injury, the School
District was aware of the corrosive condition of the nipple, as evidenced, at a
minimum, by Mr. Nelson’s interaction with Johnson Controls on March 10th. We
agree that it was not reasonably foreseeable on KRISS’s part that, with this
knowledge, Mr. Nelson, a licensed boiler engineer, would permit an independent
contractor to work on the boiler at and around the badly corroded nipple without
taking appropriate precautionary measures. See Gilbertson, 599 N.W.2d at 131 (“In
order to find that a special relationship exists, it must be assumed that the harm to be
prevented by the defendant is one that ‘[the defendant] is in a position to protect
against and should be expected to protect against.’”) (citation omitted).




                                          -14-
                           B. Primary Assumption of Risk


       As an alternative basis for granting summary judgment, the district court held
that “[e]ven if the [defendants] did owe Reimer a duty, [they] are still not liable for
his injuries because Reimer assumed the risks involved with boiler repair work.”
Reimer, No. 00-370, slip op. at 7.9 The elements of primary assumption of risk are:
(1) the plaintiff had knowledge of the risk, (2) the plaintiff appreciated the risk, and
(3) the plaintiff had a choice to avoid the risk but voluntarily chose to accept the risk.
Kraft v. Ingersoll-Rand Co., 136 F.3d 584, 586 (8th Cir. 1998) (applying Minnesota
law); Andren v. White-Rodgers Co., 465 N.W.2d 102, 104-05 (Minn. 1991);
Wegscheider v. Plastics, Inc., 289 N.W.2d 167, 169-70 (Minn. 1980).


       The doctrine requires actual knowledge of a known risk. Wegscheider, 289
N.W.2d at 170; Coenen v. Buckman Bldg. Corp., 153 N.W.2d 329, 338 (Minn. 1967)
(“[W]here it merely appears that [the plaintiff] should or could have discovered the
danger, the defense is contributory negligence and not assumption of the risk.”),
quoted in Beckman v. V.J.M. Enters., Inc., 269 N.W.2d 37, 39 (Minn. 1978);
Snilsberg v. Lake Washington Club, 614 N.W.2d 738, 746 (Minn. Ct. App. 2000)
(“Application of the doctrine requires actual, rather than constructive, knowledge.”)
(citing Parr v. Hamnes, 228 N.W.2d 234, 237-38 (Minn. 1975)). Primary assumption
of risk does not apply when a defendant’s conduct has enlarged or obscured the risk
to the plaintiff. Kaiser v. N. States Power Co., 353 N.W.2d 899, 904-05 (Minn. 1984)
(holding that landowner was not shielded from liability where his misconduct

      9
        Because we hold that Johnson Controls and KRISS owed no duty to Mr.
Reimer, primary assumption of the risk is inapplicable with regard to those
defendants. See Louis, 636 N.W.2d at 321 (“If no duty existed, there is no need to
determine whether respondent assumed the risk . . . .”) (citing Baber, 531 N.W.2d at
495). Thus, our discussion of the doctrine applies only to the School District and the
City. And again, for summary judgment purposes, we deem the School District and
City joint owner-operators of the pool facilities.


                                          -15-
materially enhanced the risk or created a new risk of harm beyond that assumed by
firefighters as incidental to fighting fires); 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);. “Whether a party has primarily assumed the
risk is usually a question for the jury unless the evidence is conclusive.” Schneider,
654 N.W.2d at 148 (citing Hollinbeck v. Downey, 113 N.W.2d 9, 13 (Minn. 1962)).


       The district court’s conclusion that Mr. Reimer assumed the risk of his injury
was based primarily on the following: 1) Mr. Reimer, a boiler repair expert, was at
the school to examine the boiler pursuant to reports of moisture and leaking; (2) as
an expert, Mr. Reimer knew and appreciated that moisture and leaking lead to
corrosion of the metal comprising the boiler; (3) Mr. Reimer knew that the boiler was
operational and contained pressurized 250 degree water. Given these facts, the
district court concluded that Mr. Reimer knew and appreciated the risk of being
burned while examining the boiler and could have avoided that risk by first cooling
down the boiler. Accordingly, Mr. Reimer’s injury directly flowed from his decision
to confront the known dangerous condition rather than avoid it and therefore he
assumed the risk of his injury. We do not necessarily disagree with this logic.
However, we do believe that it conflicts with Minnesota’s interpretation and
application of the primary assumption of risk doctrine.


      In Olson v. Hansen, 216 N.W.2d 124 (Minn. 1974), the Minnesota Supreme
Court discussed the doctrine of assumption of risk:


      Assumption of risk has two separate and distinct concepts: Primary and
      secondary assumption of risk. Primary assumption of risk is not so
      much an affirmative defense as an expression of the idea that the
      defendant owes a limited duty of care to the plaintiff with respect to the
      risk incident to their relationship. . . .

      Primary assumption of risk is applicable only where parties have

                                        -16-
      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.

Id., at 127 (footnote omitted);10 see also Armstrong v. Mailand, 284 N.W.2d 343, 351
(Minn. 1979) (“The doctrine of primary assumption of the risk technically is not a
defense, but rather a legal theory which relieves a defendant of a duty which he might
otherwise owe to the plaintiff with respect to particular risks.”) (citation omitted).
The application of the primary assumption of risk doctrine “is dependent upon the
plaintiff’s manifestation of consent, express or implied, to relieve the defendant of a
duty.” Id. “‘[N]ot every deliberate encountering of a known danger . . . is reasonably
to be interpreted as evidence of such consent.’” Iepson v. Noren, 308 N.W.2d 812,
815 (Minn. 1981) (quotation omitted); accord Evanson v. Jerowski, 241 N.W.2d 636,
640 (Minn. 1976).


       “Minnesota courts rarely apply primary assumption of the risk, and have found
that its application is only appropriate under limited circumstances.” Schneider v.
Erickson, 654 N.W.2d 144, 149 (Minn. Ct. App. 2002); accord Springrose v.
Willmore, 192 N.W.2d 826, 827 (Minn. 1971) (“The classes of cases involving an
implied primary assumption of risk are not many . . . .”); Rusciano v. State Farm
Mutual Auto. Ins. Co., 445 N.W.2d 271, 273 (Minn. Ct. App. 1989) (“Application of
the primary assumption of risk doctrine is uncommon.”).11 In even fewer cases is the


      10
         “In its ‘secondary’ sense assumption of risk means simply that the plaintiff
was guilty of contributory negligence or fault.” Swagger v. City of Crystal, 379
N.W.2d 183, 184 (Minn. Ct. App. 1985) (quoting Pitts v. Electro-Static Finishing,
Inc., 607 F.2d 799, 801 n.2 (8th Cir. 1979)).
      11
         In Minnesota, primary assumption of risk has been most often applied to
inherently dangerous sporting events. See, e.g., Grisim v. Tapemark Charity Pro-Am
Golf Tournament, 415 N.W.2d 874 (Minn. 1987) (golf); Wagner v. Thomas J. Obert
Enters., 396 N.W.2d 223 (Minn. 1986) (rollerskating); Swagger v. City of Crystal,

                                         -17-
evidence “so clear and undisputed as to present no fact issues for the jury to decide,
and the actions of the claimant . . . such as to constitute primary assumption of risk
as a matter of law.” Goodwin v. Legionville Sch. Safety Patrol Training Ctr., Inc.,
422 N.W.2d 46, 50 (Minn. Ct. App. 1988).


       The issue, then, is whether the undisputed facts in this case permit only one
conclusion: that Mr. Reimer’s serious burn injuries from the boiler were a well-
known, incidental risk of the type of work voluntarily entered into by Mr. Reimer
pursuant to the relationship between him and the defendants. The district court and
the defendants have construed the relationship and risk broadly to conclude that the
risk of being burned by scalding water is always incident to working on a boiler
containing scalding water. Plaintiff advocates a more narrow construction so that the
risk of being burned by scalding water would not necessarily be a “well-known
incidental risk” to performing an ultrasound test on a boiler because the ultrasound
procedure is noninvasive and the information to be garnered from the ultrasound was
unrelated to the breakdown of the boiler at the nipple/bunghole area. Plaintiff also
argues that the defendants’ conduct enlarged and obscured the risk of harm.


       After careful review of Minnesota’s case law in this area, we find that the
plaintiff’s argument accords with Minnesota law. In Armstrong, the Minnesota
Supreme Court found in favor of defendants in a wrongful death/negligence action
after three firemen were killed in an explosion during a liquid petroleum fire which
resulted in a boiling liquid expanding vapor explosion (“BLEVE”). 284 N.W.2d at
249-53. After rejecting a special “fireman’s rule,” the Armstrong court applied the
primary assumption of risk analysis. Id. The court began with a broad



379 N.W.2d 183 (Minn. Ct. App. 1985) (softball). But see Olson, 216 N.W.2d at 128
(rejecting defendant’s argument that “tipping or rolling” is a natural incident of the
sport of snowmobiling because “[a]lthough this may be a hazard in the activity, it is
one that can be successfully avoided.”)

                                        -18-
characterization of the relationship-risk connection but then went on to a more
particularized analysis:


      Although there is abundant evidence of negligence or products defects
      which caused or contributed to the unfortunate and disastrous fire, . . .
      the dispositive question in this case becomes: Is there a genuine issue of
      whether the risk of injury was reasonably apparent to the firemen?
      There is no question that the danger from the small fire at the pool of LP
      gas near the truck was reasonably apparent. Thus, it is clear that any
      negligence or product defect causing the initial fire provides no basis for
      recovery.

      Our inquiry must be more detailed, however. The record indicates that
      the particular risk causing the deaths was a BLEVE. Still, the record is
      clear that the firemen in West St. Paul knew that when they encountered
      a fire at an LP gas storage facility a BLEVE was a reasonably apparent
      danger and one of the risks involved in fighting such a fire. . . . The fact
      remains that the firemen knew a BLEVE could occur, even though, like
      with any risk, they did not know exactly when the danger would
      manifest itself.

Id. at 352-53 (emphasis added).


      Thus, Armstrong rejects a generalized approach in favor of a “more detailed”
inquiry into the “particular risk” causing the injury. See also Griffiths v. Lovelette
Transfer Co., 313 N.W.2d 602, 605 (Minn. 1981) (“[E]ach situation encountered may
involve some risks which are anticipated and assumed and some which are
unanticipated and therefore unassumed.”); Rieger v. Zackoski, 321 N.W.2d 16, 23
(Minn. 1982) (rejecting defendant’s attempt to characterize risk generally as leaping
over racetrack fence and instead stating that particular risk was leaping fence “after
the races had concluded for the day” when such conduct “may well have been
presumed to be acceptable”). This is consistent with the Minnesota courts’
cautionary language regarding the limited applicability of the doctrine. See, e.g.,


                                         -19-
Schneider, 654 N.W.2d at 149; Rusciano, 445 N.W.2d at 273; Goodwin, 422 N.W.2d
at 50.


       Mr. Reimer’s injuries were caused by scalding water and steam escaping from
the boiler. The possibility that a repairman working on a malfunctioning boiler may
be burned appears, on a general level, relatively self-evident. Whether such injury
is a “well-known incidental risk,” however, is a particularized and fact-intensive
inquiry under Minnesota law. Mr. Reimer’s actual knowledge and appreciation of the
risk turns on many factors, such as the nature of the repair problem as originally
described, whether Mr. Reimer, and other similarly trained repair experts, ever
conduct pre-repair testing on an active boiler, and what Mr. Reimer observed or was
told about the corroded nipple as a risk-enhancing condition.


       According to his testimony, Mr. Reimer considered an ultrasound a
noninvasive procedure which posed little risk of harm. He had done similar tests
many times on, in his view, similarly rusty boilers without cooling them down first.
And nothing in his observations or discussions with Mr. Nelson suggested that this
particular boiler posed a heightened risk of danger. Mr. Reimer’s version of events
will, of course, be subject to challenge by defendants, but, at this stage, these facts
create a genuine issue as to Mr. Reimer’s actual knowledge of the risk in this case.
See Kraft, 136 F.3d at 586 (reversing summary judgment to defendant and finding
significant to appreciation of risk element that plaintiff “had placed her hands and feet
into this gap before without incident.”); Piotrowski v. Southworth Prods. Corp., 15
F.3d 748, 753 (8th Cir. 1994) (holding that plaintiff who was injured in fall from table
“did not have actual knowledge of a known risk and he did not make the choice to
chance the risk rather than avoid it” where “[he] and other employees had similarly
stood or stomped on the lift table without incident for seven months.”); Johnson v.
S. Minn. Mach. Sales, Inc., 442 N.W.2d 843, 848 (Minn. Ct. App. 1989) (noting as
factor in appreciation of risk analysis that plaintiff saw his shop teacher and foreman
use saw without harm).

                                          -20-
       Granting Mr. Reimer the benefit of all favorable inferences from the record, a
jury could reasonably conclude that based on the information he possessed at the time
and given the task he was performing, the risk of being burned while examining the
School District’s boiler on March 10, 1998, was neither a reasonably apparent danger
nor a reasonably foreseeable incidental risk. See Wegscheider, 289 N.W.2d at 170
(“In order to assume the risk of a particular act or condition one must know and
appreciate the danger itself and not just the facts which constitute it.”). Cf. Walk v.
Starkey Mach., Inc., 180 F.3d 937, 940 (8th Cir. 1999) (applying Minnesota law and
affirming summary judgment where “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 to him.”); Andren, 465 N.W.2d at 105-06 (affirming summary
judgment where evidence conclusively demonstrated that plaintiff knew and
appreciated the danger of lighting a cigarette in the presence of liquid propane gas
and knew and appreciated that there was a liquid propane gas leak in the basement);
Armstrong, 284 N.W.2d at 353 (“[A]ny improper operation of the release valve
merely increased the risk of a BLEVE; it did not remove the occurrence of a BLEVE
from the risks reasonably anticipated by the . . . firemen.”).


       There is, to be certain, considerable evidence adverse to Mr. Reimer’s case.
Most significantly, he is an experienced expert in the field of boiler repair and the risk
of harm could have been completely avoided by turning off the boiler and letting it
cool overnight. See Walk, 180 F.3d at 939 (finding plaintiff’s extensive experience
a significant factor in favor of applying primary assumption of the risk where harm
could have been easily avoided). Moreover, Mr. Reimer concedes that he saw some
corrosion on the nipple and lower left rear of the boiler prior to starting the ultrasound
procedure and that it was his choice as to how to conduct the test. That said, material
fact disputes remain as to whether Mr. Reimer had actual knowledge of the risk. See
Wegscheider, 289 N.W.2d at 170; Beckman, 269 N.W.2d at 39. And, as reflected
in our discussion of duty, there is also a genuine issue of material fact as to whether
Mr. Reimer appreciated that risk. On this record it is not “clear [that] a reasonable


                                          -21-
person in [Mr. Reimer’s] position must have understood the danger.” Andren, 465
N.W.2d at 106. Accordingly, we cannot say as a matter of law that Mr. Reimer
implicitly or explicitly manifested an agreement to assume the risk of his actions in
this instance. See Coenen, 153 N.W.2d at 338 (“Knowledge of the particular risk or
danger and an appreciation of the magnitude thereof are independent and essential
elements of the doctrine of assumption of risk.”), quoted in Wegscheider, 289
N.W.2d at 170. See also Griffiths, 313 N.W.2d at 605 (affirming trial court finding
that although police generally assume the risks inherent in their duties, the plaintiff-
policeman could not have anticipated and therefore did not assume “the risk of being
struck by a downed utility pole which was jerked into the air when a passing
automobile snagged a guide wire attached to the pole.”).


       In reaching this conclusion, we are mindful that the Minnesota Supreme Court
has itself acknowledged that “application of the doctrine of assumption of risk is
confusing and has led to seemingly inconsistent decisions.” Baber, 531 N.W.2d at
495. In our view, this comment by Minnesota’s highest court underscores that, where
primary assumption of risk is at issue, only those cases with overwhelming and
conclusive records lend themselves to summary judgment resolution. This is not such
a case.12




      12
        Mr. Reimer also contends that the defendants enlarged and obscured his risk
of harm by failing to point out the corroded nipple and/or tell him about the Johnson
Controls employee’s comments from earlier that day. See, e.g., Schneider, 654
N.W.2d at 149 (“[P]rimary assumption of the risk may not apply if appellant can
show that respondent enlarged the risk to appellant.”) (citation omitted). The district
court did not address this theory of liability with regard to the landowner defendants.
We decline to further address this issue and assume it will be taken up on remand.

                                         -22-
                                         III.


       Because Johnson Controls and KRISS owed no duty of care to Mr. Reimer, the
district court properly granted summary judgment in their favor and we affirm that
aspect of the district court’s ruling. As to the School District and City, however, we
find genuine issues of material fact preclude summary judgment resolution on the
question of the duty of care owed by those defendants. We also find genuine issues
of material fact with regard to whether Mr. Reimer relieved the defendants of any
duty owed by assuming the risk of his actions. Accordingly, as to the School District
and City, we reverse and remand for further proceedings consistent with this opinion.




      A true copy.


             Attest.


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




                                        -23-
