Blumhardt v. Hartung

Alice Blum Reinhold BLUMHARDT and

hardt, Appellants, Plaintiffs HARTUNG, Company,

Mayer, Hartung Construction corporation, Wheat and South Dakota Association, cooperative, De Respondents,

fendants and Robinson, George

Roy Kelsey, Martin

Thiel, Igo, and Loren Defendants. 12488.

No. Dakota.

Supreme Court of South

Argued April Sept.

Decided 31,1979. Oct.

Rehearing Denied

FOSHEIM, Justice. Blumhardt, plaintiff,

The Reinhold seeks damages injuries for he sustained while working at construction of a Tulare, Dakota. His elevator South wife, Blumhardt, alleges con- Alice loss of injuries. resulting sortium from these compensation benefits been Worker’s have recovery This was for received. action against persons other than the Compen- under Dakota Worker’s South Hartung, P. A. sation Law.1 Defendants Roy Hartung and Kelsey I. F. were officers Hartung Compa- defendant Construction ny Mayer and defendant Leonard company foreman project. on the Tulare Robinson, Thiel, George Martin and Loren Igo their became defendants virtue of employment with the defendant Da- South Association, kota Wheat Growers the owner Robinson, the elevator. Defendants Thiel, Igo, Kelsey, Hartung Construc- tion Company voluntarily dismissed granted from the suit. The court trial mo- tions summary judgment dismissing all defendants, remaining claims P. A. Hartung, (Hartung), I. F. Leon- ard Mayer (Mayer), and South Dakota (Wheat Wheat Growers Association Grow- ers). appeal This judgments. from those (1) Hartungs are: issues Whether the are individually liable for in fail- work; provide (2) place safe Battey Richard H. of Gallagher Battey, & Mayer whether supervising is liable as the Redfield, respondent, for defendant job; (3) foreman on the Tulare whether Mayer. liable, (a) Wheat Growers is under theories Groseclose, Richardson, Chester A. Jr. of place that it retained control over the work Groseclose, Aberdeen, Wyly, Kornmann & to a degree sufficient so to render it respondent, for defendant and South Dako- liable, (b) that it conducting an ultra- Association, ta Wheat a coopera- inherently dangerous hazardous or activity, tive. (c) employ that it failed competent contractor. We affirm as to the Harvey defendants Siegel, Barnett, C. Jewett of Hartung, P. A. Schütz, Hartung, O’Keefe, and Leonard Aberdeen, King, Jewett & and reverse as appellants. defendant plaintiffs and South Dakota Wheat Growers Association. Kolker, Daniel R. Fritz Maloney, Fritz, Hogan Johnson, Aberdeen, & defend- Company (Compa- Construction respondents, ants and P. Hartung ny) A. building in the business of F. Hartung, Hartung corpora- repairing grain Compa- Const. elevators. The tion. ny operated by was owned and Har-

1. SDCL 62-4-38. Kelsey. Compensa- Dakota Worker’s Roy Each South tung, I. P. 62) (SDCL provides for tion Act Title com- would obtain ele- of these individuals of workers for on contracts, repair draw vator construction or job. recompense only right This necessary give them up plans, against an employer. has foreman, completed. and have the work exception 62-3-2. An exclu- Blumhardt was hired Plaintiff Reinhold against sivity act a of action of the part by Company the latter sometime persons provided by third as SDCL 62-4- Tulare, report was to to of 1971. He told 38: was an Company where the compen- for which Whenever an project. The repair elevator and renovation payable under this title shall sation grain Wheat Grow- elevator was owned under circumstances have been sustained project ers. This under the on-site was person than creating in other some supervision Mayer, of defendant Leonard legal liability damages employer pay a to supervision and under the overall of defend- thereto, injured in respect put ant P. was to Hartung. A. Plaintiff option compensa- may at his either claim work as a construction laborer. proceed against tion law such or other person damages proceed to recover or 8,1972, was on March Plaintiff such both the and other only an to he was the wit- accident which person, from but he shall not collect both. ness. His version of the facts is that It is established this state that a defendant Leonard instructed him to person co-employee may be “some other repair in a elevator holes floor employer” than in an action at law for fifty approximately forty which was to feet 286, Hasvold, 86 S.D. damages. Wilson floor, ground above and is the concrete (1972). 251 62-1-7 ex SDCL to as the first floor. hereafter referred corporate all officers pressly provides that plaintiff told if it Mayer also that became regarded employees.2 floor, should dusty go too on the first he repair the below the first floor and holes Hartung secretary and a was underneath, nothing from There was be- safety officer of the Construction president tween first and Company. floor the concrete was firm. The safety and a officer of the ground except plank floor a with one end also Hartungs, as query first is whether nailed the side a bin. The other to any common-law liabili- co-employees, have end to When it was nailed a wooden brace. liability ty accident. Potential does for the dusty became too to work above the first designa- necessarily follow from their floor, plaintiff hand-operated went to a ele- co-employees, because essential tion as an vator, and lowered himself until he was employees act- distinction is drawn between underneath first He then floor. ing acting without their those began onto stepped plank, out corporate supervisory capacity. measure the distance between floor joists, he of proper so that could cut boards negli order find actionable size from patch floor beneath. gence, there must be plank way fell to gave protect the defendant ground permanent- duty, He perform concrete floor. was injury, a failure to ly injured. plaintiff resulting from such injury to the ‘employer’ gain option, at his be an immuni- 62-1-7 states: ty ego corporation and as the alter at the Every duly appointed or elected executive purpose ‘employee’ same be an for the time corporation, officer of ble, religious, other than a charita- receiving benefits.” educational, workmen’s nonprofit or other 289, Hasvold, 286, 86 194 Wilson v. S.D. corporation, employee of shall be an such 251, corporation N.W.2d 253 under this title. corporate prevents This statute “a officer from cannot, wearing hats He two at the same time. Bunch, 22, Cuppy premises appellant even on the when the failure. S.D. Barrick, (1974); appel- Ecklund v. injured. N.W.2d (1966); 144 N.W.2d 605 Roster lant of is complains S.D. Oliver’s failure provide Power for her to place Inter-State a safe Hasvold, required Wilson v. law. Certainly N.W. state president majority under laws supra, safety requirements stockhold- the labor company their operat- er of the construction should be in this state and enforced caterpillar go unpunished, at the work if tractor violation should but being merely anchor or party used to stabilize Oliver was third fellow- employee, a crane when the boom on the crane col- no to furnish a place lapsed plaintiff. appellant and struck the We held to work —safe or oth- corporation as an employee, the defendant could be erwise. If the was the em- individually personal as his ployer president, liable insofar was the mere Oliver negligence personally caused or contributed to the he was not liable in tort or that, injuries, plaintiff’s but “as he compensation injuries cannot under the act for ‘employer’ purposes be considered an for by corporate employees of sustained who immunity, he cannot held personally corporate be lia- on defective owned falling ble conduct or equipment.” conditions maintained machines ambit of of responsibility corporate the 291, 86 at The S.D. at 254. 293, employer.” 86 S.D. at 194 N.W.2d at Hartungs cannot held individually be liable Wilson, per- the defendant had a for working conditions which were re- responsibility sonal to exercise ordinary sponsibility Company. of of the As officers operation care of the tractor so that entity, that and I. F. plaintiff’s it did not inju- contribute to Injuries such resulting duties. from their ry. SDCL 20-9-1.3 Whether there was a capacity, however, failures in that have breach of that held to genu- be a compensated been under the Worker’s Com- precluding summary ine issue of fact judg- immunity umbrella Law. The ment. extends accordingly.4 Appellants that claim defend Defendant Leonard individuals, F. and P. A. ants the Company job foreman on the Tulare guilty failing pro project. This his rendered duties for the working vide safe conditions. While an act safety of his crew more immediate di omission, commission, may well as safety precautions rect. Adequate appar care, ordinary Degen want of constitute v. ently provided job were not site. 598, Bayman, 86 200 S.D. N.W.2d 134 features, likely absence of such (1972), it must on a duty be founded of care prevented or have lessened im by the wrongdoer person owed to the in accident, pact point of this to a lack serious jured or to a class of which he is a member. part job of due care on the of Mayer as Waggoner Development, v. Midwestern however, Again, foreman. such duties were Inc., 57, 83 S.D. 154 N.W.2d 803 In within his corporate responsi the ambit of Hasvold, supra, quoted Wilson we bility. present He was when acci Oliver, approval 377, from Neal v. 246 Ark. happened dent evidence shows no (1969): 438 S.W.2d 313 act or on commission omission his appellant injured by was not a di- breaching any personal duty owed “The negligent Oliver, rect act of plaintiff. legal wasn’t servant When a owes no accident, provides: 3. SDCL 20-9-1 4. Since the this time of 62-3-2 has been It now other amended. excludes all Every person responsible injury is rights employee against and remedies of the person, property, rights or of another co-employees except arising those from inten- caused his willful acts or caused his tional skill, tort. ordinary subject want of care or contributory latter cases to the defense of negligence. doing, In so the court determined that when person cannot person, such duty to another dangerous, intrinsically in tort make a cause of action contracted out contracting to have it property owner by showing that his failure the servant master, to an a common-law em duty, done owes belonging perform independent contractor for his ployee to himself. Cain has resulted effect, meant, that 540, safety. County, N.W. Meade 54 S.D. This beneficiary was not property owner Compensa immunity under the Worker’s immunity from com employer’s 468, F.Supp. at n. tion Law. 281 the fact that liability arises from mon-law statute, Tennessee construing a similar fund; compensation he contributes to Circuit Appellate Court and Sixth Unit contribution, immunity no exists. absent Appeals, respectively, ed Court of States Compensation provides Law Our Worker’s held in International Harvester Co. Sar contractor principal liable tain, Tenn.App. 222 S.W.2d 854 to the same ex payment Penney (1948), Womble v. J. C. Thus, in any tent as of his subcontractors.5 1970), (6th F.2d 985 the owner of Cir. Son, Inc., Metzger v. 3. Brunken & property pur was not included within the (1969), applied we N.W.2d “statutory employer view the Tennessee quo concept cor quid pro and extended provision.” responding immunity principal con however, statutory immunity Metzger, An absence of tractor. Our decision not, course, of mean that common-law regarding made no the owner does of mention Indeed, liability necessarily follows. it is case involved a suit property.6 That general employer (property rule that an brought by an of a subcontractor the owner) for the torts of an general prop is not liable against the contractor. independent contractor committed party to the action. erty owner rationale, Hag ap of the contracted work. Metzger though, performance Falls, v. berg City supra; from of Sioux Funk pear property exclude the owner to 91, 220 Corp., 392 Mich. Compensa Worker’s Motors immunity under the General (1974). generally: Am. imposes since law no corre N.W.2d See tion Law the (1968); compensation Hagberg Independent In Jur.2d Contractors sponding § duties. Annot., general Falls, (1926). The F.Supp. 44 A.L.R. 934 of Sioux City ground that justified “is since (D.S.D.1968), District rule the United States independent contractor employer the absence the of an Court for Dakota noted South prosecution of the regarding the no control over the precedent of has South Dakota work, unjust to hold him liable property owner and referred it would be liability of the he (Second) of another whom cannot to the Restatement of Torts torts princi- compensation this title from the provides: under 5. SDCL 62-3-10 contractor, pal or but the collec- intermediate intermediate, principal, A or subcontractor compensation employer from one tion of full compensation any to em- shall be liable for ployee injured recovery by employee against shall bar any employ of one others, any from all a he shall collect engaged upon his subcontractors and compensation in excess of the amount total contract, subject to same matter of the any is liable. for which of such contractors Any prin- employer. as the extent cipal, immediate only apply This section shall in cases where intermediate, who or subcontractor in, on, prem- or about the occurred provisions pay compensation shall under the principal contractor has ises on which may paid section this recover amount work or which are to execute undertaken who, any person, independently of this management. under his control or otherwise section, pay would have been liable to com- employee. Every to the the owner of While law often refers to case claim for this under section independent property an con- who has presented shall in the instance be to and first “employer,” as the term used tractor employer, the immediate instituted seemingly Compensation ex- our Worker’s Law proceeding but such shall not constitute property owner. cludes the employee’s rights recover waiver of the Corp., cording direct.” Hobbs v. Mobil Oil to his testimony, 445 P.2d own to direct the 1968). (Alaska Hartung people selection construc- addition, tion materials. he stated that Conversely, exists as a concomi- power safety retained the alleviate tant of the the property control retained Igo, hazards at site. Loren a Wheat exception general owner. This rule elevator, Growers foreman the Tulare nonliability expressed Restate- and, was at the site on a daily basis accord- (Second) Torts, (1965): ment § plaintiff, and the One indepen- who entrusts work to an often people instructed the on var- contractor, dent but who retains con- aspects times, ious of the construction. At any part work, subject trol of testified, Igo personally directed liability physical harm to others for Further, employees in their work. safety whose owes a there were instances when Wheat Growers’ care, exercise reasonable which is caused employees worked shoulder-to-shoulder by his failure to exercise his control with the Hartung men on the construction. reasonable care. significance Of additional is the fact that Comment foregoing c section states right Wheat Growers retained the to sus- that the retained control must be such that pend just operations, did the defend- entirely contractor is “not free to do the ant in Corp., supra. Hobbs Mobil Oil way.” work in his own Hobbs, retained, right expressly this general A supervisory to in case, present but never exercised. In the spect order to insure its satisfacto although express there nowas retention of ry completion does not render the property right, Wheat Growers did halt con- owner liable for the of an inde during struction the 1971 harvest to accom- pendent contractor. McDonald v. Shell Oil modate increase of movement at 44 Cal.2d 285 P.2d 902 the elevator. However, where the owner retains a more assigned The work to which significant degree control, he comes dangerous particularly long scope 414. In Hobbs v. § repairing he was the floor standing Corp., supra, Mobil Oil the defendant hired However, on the floor itself. when the (Santa Fe) a contractor to work on its conditions, dusty by caused the owner con- premises. By agreement, the contractor tinuing grain structure, to move within the exercised opera exclusive control over the impossible plaintiff made it to work tion and maintenance of the work area bin, grain inside it became necessary for where employees one its injured. him assigned to do his task from beneath however, Mobil right, retained the to termi the floor. point, working At that condi- nate Fe employees Santa temporari and to very tions became appropri- hazardous and ly suspend addition, the work. Mo two safety precautions ate necessity. were a supervisors bil usually present at the case, Co., similar Womble J. Penney v. C. site. The court agreement found that supra, a giving subcontractor’s was in- general Mobil supervisory rights, to jured when he gether slipped on floor that had with the fact that on separate two been recently waxed prop- occasions defendant Mobil employees directed erty-owner’s work, employees. to do The defendant gave certain rise to a genuine was held liable for its concerning safeguard issue of fact failure to retained control. risk arising others its activity premises. own case, In the present is there evidence that case, Wheat Growers’ employees In this continually su- the trier of fact could find pervised project. Robinson, knew, Martin that Wheat Growers or should have superintendent, known, Wheat Growers was at the of the nature progress fifty on at least being occasions to monitor work done its contractor and that progress. He had authority, ac- their continued use the elevator to move evidence, could, it to tailing say the lack of suffice in various during its renovation dusty ways working conditions conditions within directly passing affect jury nothing A could Hartung’s employees. addi- do first floor bin find Wheat Growers’ officials tionally Reinhold the risk supervised continually project re- exposed the time Blumhardt of control that tained such accident. entirely to do the work in its

was not free way.

own upon the movant

The burden to show that there summary judgment fact, and

is no of material genuine issue light most

evidence must be viewed nonmoving party. Wilson

favorable Railway Northern Great CHISUM, Hight Agnes P. Plaintiff Considering the evi Appellant, vein, there was a in that we conclude dence genuine factual issue as whether Wheat to im retained sufficient control Behrens, BEHRENS, Harry Jon at that pose liability. Having arrived con Inc., Mortuary, Defendants Behrens clusion, unnecessary it to consider the Respondents. liability urged by appel other theories of regard lant with to this defendant. We No. speculate upon not and what

should do Supreme Dakota. Court of South issues, render any, if the evidence will sub- jury. missible to a Sept. granting the trial court judgments summary judgment in favor of

motions for Hartung,

defendants affirmed. The

judgment summary granting the motion

judgment of the defendant South favor is re-

Dakota Wheat Growers Association

versed.

DUNN, HENDERSON, MORGAN

JJ., concur.

WOLLMAN, J., C. concurs part.

dissents

WOLLMAN, (concurring Justice Chief dissenting

part, part). summary judg- join affirming

I in favor of P. A. I. Har-

ment

tung, Mayer. and Leonard judg- summary

I also affirm Dakota

ment entered in favor of South light viewed in the

Wheat Growers. When evidence plaintiffs, favorable to

most regarding factual

does not establish a issue impose of control sufficient

retention Without de-

liability upon Wheat Growers.

Case Details

Case Name: Blumhardt v. Hartung

Court Name: South Dakota Supreme Court

Date Published: Sep 5, 1979

Citation: 283 N.W.2d 229

Docket Number: 12488

Court Abbreviation: S.D.