Wednesday, December 06, 2006
Eighth Circuit affirms summary judgment against Farmer who caught metal fragments in his eye from pry bar he was hitting with a hammer while he was not wearing safety gogglesKrajewski v. Enderes Tool Company David U.S. Court of Appeals 054031P.pdf 12/04/06 District of Nebraska Farmer hammered on long pry bar to jar loose a stuck sprocket on his combine. Because it was getting dark he removed his "tinted" safety goggles. As he struck the pry bar with a hammer a fragment of metal hit his unprotected eye. Farmer sued. The Federal District Court dismissed on summary judgment. Eighth Circuit Court of Appeals affirms on Nebraska assumption of the risk and proximate cause. Judge Gibson dissenting Assumption of risk is an affirmative defense, and the defendant must show that Â(1) the person knew of and understood the specific danger,(2) the person voluntarily exposed himself or herself to the danger, and (3)the personnÂs injury or death or the harm to property occurred as a result of his oher exposurere to the danger.Â Neb. Rev. Stat. Â§ 25-21,185.12. The doctrine Âappa subjectivective standard, geared to the individual plaintiff and his oractual comprehensionnsion and appreciation of the nature of the danger he or she confronts.Â Pleiss v. Barnes, 619 N.W.2d 825, 829 (Neb. 2000)... Plaintiff's undisputed testimony, indicates that he knew and understood the specific danger at issue Âwhen hammeringmmering a metal hammer against a tool, there is a danger of chipping metal hitting the eyes.
Posted by stan_sipple at 3:06 PM