Cengage Advantage Books: Fundamentals of Business Law 9th Edition by Roger LeRoy Miller

Exercise 21

Wolf v. Don Dingmann Construction, Inc.
Court of Appeals of Minnesota, __ N.W.2d __ (2011).
FACTS Michael John Wolf contracted with Lumber One, Cold Spring, Inc., to remodel his home. Lumber One in turn awarded a subcontract to Don Dingmann Construction, Inc. Wolf lived in the house during the construction, and he was present at the job site on most days. Part of the project, which Wolf designed, included the construction of a loft. A ventilation pipe was to go from a fireplace in the den up through the loft. During construction, at Wolf's direction, the subcontractor left a large opening in the loft's floor to accommodate the pipe. One Friday, the subcontractor's owner, Don Dingmann, suggested removing the temporary stairs that led to the loft to prevent risk of injury over the weekend because guardrails had not yet been installed at the loft's edges. Wolf declined. The following Monday, while Dingmann was working in the loft, he saw Wolf climb the stairs from the den into the loft. A few minutes later, he found Wolf lying unconscious below the hole in the loft floor. Wolf filed a lawsuit in district court, alleging that Lumber One and Don Dingmann had negligently caused his fall. The defendants moved for summary judgment, arguing that they owed no duty to Wolf because the danger was open and obvious and because Wolf had assumed the risks associated with his presence on the job site. The district court agreed and granted summary judgment for the contractors. Wolf appealed.
ISSUE Did Wolf know about the risks associated with the construction site and voluntarily assume the risk of falling through a hole in the floor?
DECISION Yes. The state intermediate appellate court affirmed the lower court's judgment. Wolf undertook the risk at the construction site voluntarily, which relieved the contractors of their legal duty of care.
REASON The appellate court reasoned that "the undisputed facts establish that Wolf had personal knowledge and appreciation of the risk of falling. Wolf was familiar with the job site because he designed the loft, he lived in the home during construction, and he inspected the job site regularly." In addition, Dingmann and Wolf had discussed taking safety precautions because the loft lacked guardrails, but Wolf had declined them as unnecessary. Therefore, "even if the subcontractor was negligent by leaving the hole uncovered or failing to erect guardrails, Wolf's recovery is legally barred because primary assumption of risk is applicable when a defendant engages in negligence that is obvious."
FOR CRITICAL ANALYSIS-Ethical Consideration Should courts apply the doctrine of assumption of risk to children? Discuss.