Derek Schreyer v. Bandag, Inc. , 311 F. App'x 928 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-1123
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Derek Lee Schreyer, *
*
Plaintiff - Appellant, * Appeal from the United States
* District Court for the
v. * District of Minnesota.
*
Bandag, Inc., * [UNPUBLISHED]
*
Defendant - Appellee. *
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Submitted: October 17, 2008
Filed: March 3, 2009
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Before LOKEN, Chief Judge, BYE and SMITH, Circuit Judges.
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PER CURIAM.
Derek Lee Schreyer was injured at work when a tire attached to a curing rim
station for retreading exploded. Schreyer received worker’s compensation benefits
from his employer, Tire Associates Warehouse, Inc., and then sued its franchisor,
Bandag, Inc., alleging that Bandag’s negligent inspection of the regulator controlling
air pressure at the curing rim station and failure to warn Tire Associates of its dangers
proximately caused his injuries. After removal to federal court, Bandag moved for
summary judgment on the ground that it owed no duty of care to Tire Associates or
its employees under Minnesota tort law. Schreyer asserted that Bandag owed him a
duty of care under two distinct theories -- because Bandag “retained control” over the
operations of its independent contractor, Tire Associates, and because Bandag
assumed a specific duty to protect Schreyer from this dangerous condition by
conducting annual safety inspections of Tire Associates’ operations.
The district court1 concluded that Bandag owed Schreyer no duty of care under
either theory and granted summary judgment in favor of Bandag. Schreyer v. Bandag,
Inc., 2007 WL 4287667 (D. Minn. Dec. 5, 2007). First, noting that Tire Associates
purchased and set up the compressed-air system and developed and imposed its own
safety standards regarding the use of compressed air, and that Bandag inspected the
equipment only once a year, the court held that Bandag “had nothing resembling [the]
‘detailed control’ over the ‘operative detail’ of the work done by employees of Tire
Associates” that is required to create a general duty of care to those employees under
Sutherland v. Barton, 570 N.W.2d 1, 5-6 (Minn. 1997). Schreyer, 2007 WL 4287667
at *5.
Second, the court held that Bandag did not voluntarily assume a specific duty
of care to Tire Associates or its employees when Bandag employee John Bertotti
conducted a routine annual safety inspection of Tire Associates’ operations eight
months before the accident. Applying Cracraft v. City of St. Louis Park, 279 N.W.2d
801, 806-07 (Minn. 1979), and In re Norwest Bank Fire Cases, 410 N.W.2d 875, 878-
79 & n.5 (Minn. App. 1987), the court concluded there was no assumed duty because
(1) there was no evidence Bertotti knew of any malfunction or dangerous condition
affecting the air-pressure regulator; (2) even if Bertotti failed to detect a malfunction,
that did not increase the risk of harm that already existed; and (3) there was no
evidence that the actions of Bandag or Bertotti caused Tire Associates or its
1
The HONORABLE PATRICK J. SCHILTZ, United States District Judge for
the District of Minnesota.
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employees not to take their own measures to ensure that the compressed air system
was working properly. Schreyer, 2007 WL 4287667 at *6-7.2
Schreyer appeals, arguing that Bandag owed him a duty of care under both
theories. Reviewing the grant of summary judgment and the district court’s
interpretation of Minnesota law de novo, we affirm for the reasons stated in the district
court’s thorough Order dated December 5, 2007. See Thornton Drilling Co. v. Nat’l
Union Fire Ins. Co., 537 F.3d 943, 945 (8th Cir. 2008) (standard of review).
The judgment of the district court is affirmed.
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2
Both Bandag and Tire Associates knew that the pressure of compressed air
flowing to the curing rim station should not exceed 10 pounds per square inch (psi).
Bertotti testified that he checked the reading of the pressure gauge during his
inspection but did not test the gauge for accuracy because it was his practice to
instruct Tire Associates managers to test the gauge. After the accident eight months
later, Bertotti returned and discovered that, although the gauge read 10 psi, the curing
rim in fact was receiving 110 psi. There was no evidence establishing when the air
pressure regulator began malfunctioning. Bandag did not manufacture or supply the
curing rim equipment, the air pressure regulator, or the gauge.
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