## Facts

- Donald Ray, an experienced 39-year-old farm laborer, worked for farmer Harold Downes near Pierre, South Dakota.
- Downes hired custom harvester John Wieczorek; Wieczorek’s employee, Phillip Waldner, drove a semi-tractor/trailer and unloaded grain into bins using a swing-type auger placed under trailer openings.
- Ray had observed the unloading process but was not assigned to assist with harvesting or unloading.
- On October 16, 1995, Downes instructed Ray only to use a front-end loader to grade ground near a grain bin so the auger could fit underneath the trailer.
- After completing the grading, Ray voluntarily helped Waldner position the auger while Waldner slowly drove the semi forward.
- The plan required Ray to signal and shout for Waldner to stop once the auger was aligned; Waldner did not hear or see Ray’s signals.
- The semi’s rear wheels caught Ray’s foot, ran over his leg, and pinned him, causing serious injuries.
- Ray sued Downes, Wieczorek, and Waldner for negligence; his wife asserted a derivative loss of consortium claim.

## Issues

1. Whether the evidence established, as a matter of law, that Ray assumed the risk of injury, justifying summary judgment.
2. Whether assumption of risk barred the claims against (a) Ray’s employer, Downes, and (b) non-employer defendants, Wieczorek and Waldner, on the same record.

## Decision

- The South Dakota Supreme Court affirmed in part and reversed in part the summary judgment.
- Summary judgment was affirmed for Downes because Ray voluntarily exposed himself to an obvious danger not required by his assigned work.
- Summary judgment was reversed for Wieczorek and Waldner because the assumption-of-risk defense turned on factual questions for a jury.
- The case was remanded for further proceedings on the claims against Wieczorek and Waldner.

## Legal Principles

- Assumption of risk requires (1) knowledge of the specific risk, (2) appreciation of that risk, and (3) voluntary acceptance of the risk.
- Although ordinarily a jury question, assumption of risk may be decided as a matter of law when material facts are undisputed and only one reasonable inference can be drawn.
- A plaintiff’s experience and voluntary choice to engage in an obviously dangerous activity can support summary judgment on assumption of risk as to an employer.
- Where injury arises from coordinated activity dependent on another party’s operation and responsiveness (e.g., signals to a driver), whether the plaintiff actually appreciated and accepted the specific risk may present a jury issue, making summary judgment improper.

## Conclusion

The court held that Ray assumed the risk as to his employer by voluntarily placing himself near the wheels of a moving semi during an unassigned task, but that a jury had to decide whether Ray assumed the risk created by the custom harvester and driver’s conduct during the signal-dependent unloading maneuver.


Ray v. Downes, 576 N.W.2d 896 (S.D. 1998)