Duncan v. Pennington County Housing Authority

Plaintiff, DUNCAN, Respon Coyle W. Cross-Appellant,

dent and HOUSING AU COUNTY

PENNINGTON THORITY, Aukerman Wahl, Brutger, John A. Dan J. Schreifels, Beek Norman A.

Richard E. Marthaler, Schaefer, Gary

ley, Don Joel Barck, Rentz,

Nelson, Tom De Dale

fendants. INC., MAZOUREK, AND

AUKERMAN Plaintiff,

Defendant, Party Third Cross-Respondent,

Appellant and BRUTGER, INC., Third

DAN J.

Party Defendant. 12235, 12248.

Nos.

Supreme Court South Dakota. 26, 1979.

Sept.

WOLLMAN, (on reassign- Chief Justice ment). appeals

These are from the en- plaintiff tered on a verdict in favor of respondent, Coyle (Duncan), and W. Duncan against appellant, and defendant Aukerman (appellant), and Inc. the sole non-settling defendant at trial of the mat- Appellant’s third-party ter. action Brutger Dan J. was severed the trial court from the trial of the In primary case. appeal appellant appeals # from respondent Duncan. appeal We reverse and remand. cross-appeals # Duncan from judgment. We affirm. was an iron employed by

Duncan worker Inc., Brutger, general was the project low- high-rise tractor on to build housing for Pennington County income (PCHA). Housing Authority January On injuries sustained as Duncan serious a twenty-two-foot result of fall from a “High-rise building Project known as West” orig- that was then under He construction. brought suit inally appellant, PCHA, Brutger, J. Brut- Dan Dan J. ger (President Inc.), Brutger, Dan J. Wahl, Schreifels, John A. Richard E. Nor- Marthaler, Beekley, man A. Joel Dan Barck, Schaefer, Nelson, Gary Dale and (employees Brutger, Tom Rentz Dan J. trial, Inc.). to conclusion of the all of Prior except appellant entered defendants agreements into Duncan. $20,000, for PCHA settled and the remain- $130,000. ing defendants settling settled for returned a verdict for Duncan the amount eyewitnesses no acci- There were injuries. estab- dent that caused It was that Duncan suffers from lished at trial retrograde concerning amnesia events Olson, L. Robert Varilek and David P. surrounding did es- the fall. The evidence Rapid City, plaintiff, for and respondent working on an tablish that Duncan was cross-appellant. landing be- stairway-well unfinished Gunderson, Farrar, he Robert A. tween second and third floors when Warder of Aldrich, Mersseman, rail Rapid temporary safety guard Warder & De fell defendant, and City, party plaintiff, support weight al- third that failed appellant cross-respondent. ground. lowed him to fall on the duty of primary architects PCHA archi-

Appellant hired to the owner that projects. usually to assure high-rise Under for the two tect has been acceptance between final work terms of contract before fee PCHA, percent plans ten with the completed accordance day- supervision case, specifications; and The contract made to-day contract, construction. assume written architects] [the duty that reference to to assure 200, at 202 N.W.2d much more.” 189 Neb. were com- all of the contráctual documents con- court found the at 168. The Nebraska peri- plied throughout with the construction unambiguous in that to be an tract case made in these docu- od. Reference was by supervisory responsibility of assumption contained safety requirements ments to the held that the architect the architect and promulgated by Occupa- the in standards duty performed that may be liable when Safety Health Administration and tional of negligent For a discussion manner. (OSHA). assumed that where architects have the rule precautions safety for supervisory as a duties David Davies Appellant employed for may be held liable agent. they visited each via contract supervising Mr. Davies stemming from a of that injury sites several times breach of the construction 1974, (1974). 2, a duty, issued see Annot. 59 A.L.R.3d 869 day. On December OSHA construction site for citation the Lu upon the case of Appellant’s reliance One of these vio- specific three violations. Schutte, Mochon, Hackworthy, terbach twenty percent of the tem- lations that Juerisson, 84 Wis.2d 267 N.W.2d railings building wooden in the were porary Luterbach, (1978), is In the misplaced. according to standards. constructed court concluded that owner-contractor citation, Davies, had received this Mr. agreement owner-architect contract and the rails were testified that he knew hand together to determine should construed inadequate. Language duty. the architect’s from it Appellant’s contention is that first pro agreement specifically owner-architect em duty safety owed no insure of to not be re vided that the architect should ployees general of contractor precautions pro sponsible safety injuries temporary construction caused grams. Appellant argues measures devices. the trial did not We conclude that court supervision its sole of was to duty that submitting question of err in form, building, insure that in its final jury. to the according specifica was constructed building plans. tions contained the tri Appellant next contends that The trial court concluded that regula allowing the court erred in OSHA al appellant tract between and PCHA was of the as evidence tions introduced ambiguous respect appellant’s duty with obliged to standard of care supervise safety precau- to Duncan to Appellant argues express meet. tions taken the construction site and impose safety re purpose OSHA jury. submitted the issue sponsibilities solely upon employers. 653(b)(4) provides: “Nothing in U.S.C. District, § In Public Simon Omaha Power chapter shall be construed to . (1972), the 189 Neb. 202 N.W.2d 157 enlarge any or diminish or affect in other Supreme Nebraska faced a similar Court statutory law manner common case, plaintiff, situation. an em- duties, contractor, rights, employers or liabilities independent an fell ployee of respect law employees under through building of a a hole in the floor diseases, injuries, employees or death having Omaha Public Power District was of, of, employ arising manner out or in the course constructed. The court noted the duty Appellant concludes this lan ordinary in which the extent of the ment.” congressional enlarged: guage an architect observe evinces a intention may “We not create a statutory right (1969); OSHA of action S.D. N.W.2d 725 Series v. employee against an an employer. A Braun, (1962); 79 S.D. 113 N.W.2d 216 fortiori, the Act not be used to create a District, and Simon v. Omaha Public Power right statutory of action one who is supra. employer. not an Appellant next contends that the tri Appellant gist misconstrues the of Dun- al court erred in its treatment of the settle theory can’s of liability. Duncan’s cause of ment entered into between Duncan and the action does not arise as a result of a viola- defendants, arguing that the failure tion of some statutory duty created apply trial court to re Rather, OSHA standards. will lie if ceived appel Duncan from PCHA to injuries Duncan’s proximate were the result lant’s share results in of appellant’s negligent duty breach of a recovery double Appellant Duncan. ar that appellant per- undertook contract to gues $20,000 applied that should be form. As this Weeg court said in v. Iowa against $16,125 that the trial court Co., 104, 110, Mutual Insurance 82 S.D. verdict, found was share of the (1966): N.W.2d leaving Duncan with no judg collectible “Negligence which consists merely in the against appellant. ment Duncan contends breach of a contract will not afford that the total of all settlements received ground one, for an by any except action should be used to reduce the verdict party to the contract . . . . But tanto, pro $65,000 leaving paid where, contract, in omitting perform appellant. We conclude that part, whole or in one also omits to use paid to Duncan PCHA must be used to ordinary injury care to avoid to third judgment pro reduce the tanto. persons, who exposed . . . would be negligence, risk he should be The settlement agreement between Dun- held liable to persons injuries such for provides pertinent can and PCHA part: proximate which are the result of such It specifically acknowledged is and un- omission.” [citation omitted] derstood that Duncan claims that addi- One section of appel- the contract between parties, tional specifically, Aukerman & lant and provides: PCHA “In addition to Mazourek, Inc., obligated is liable and general supervisory during and services them, them, may or arising be liable to construction, inspection on-the-site shall be incident, jointly out of the same and sev- provided Architect, by the who.shall under- tortfeasors, erally, and it is un- take compliance to obtain with the contract derstood that this release does not release documents . (emphasis supplied). . . .” action, any causes of claims or demands One of the contract documents may that Duncan have said Auk- agreed to compliance obtain with was the Mazourek, However, erman & Inc. this OSHA Accordingly, standards. it was not given pursuant provisions is release to the error for the trial court to allow these docu- of 15-8 and consistent with SDCL South ments to be introduced as evidence of the Among Dakota’s Uniform Contribution duty appellant agreed perform. Similar extent, Tort-Feasors Act. To that use of OSHA standards was made in specifically acknowledged agreed and Knight Burns, Kirkley & Williams Const. Duncan that this release does and shall be Co., Inc., 331 (Ala.1976), So.2d 651 where Housing construed to release the Authori- proper court said: “Under circumstanc- officers, ty directors, and all of es Occupational Safety pro- and Health Act thereof, agents employees and, and full visions regulations may be admissible further, any sum or recov- for a jury determining to consider in parties ered any any other or standard of care that a defendant should persons, may have be followed claimed to be . .” 331 So.2d tortfeasors, 654. For similar regula- treatment of state shall be reduced in the Sons, tions Inc., see Weeks ($20,- v. Prostrollo Twenty sum of Thousand Dollars other tort-feasors in the amount 000.00),or sum as be the in such shall release, or in paid consideration share of the Hous- pro extent of the rata by which the proportion amount or obligation liability ing Authority’s shall provides that the total claim release them, Duncan, or of damages to either reduced, if than the considera- greater determined, the same however paid. tion (em- larger, be the whichever sum shall added) phasis interrogatories, Answering by special negligent; jury found given The release to the other tort-feasors settling group of nine that some pertinent part: provides in negligent and that their defendants were given pursuant This Release 92%; negligence that Aukerman totalled 15-8, provisions Da- the South negligent Among Tort- kota Uniform Contribution negligence 7.5% and that Dun- its totalled Accordingly, Feasors Act. the under- contributorily negligent can was signed agree Release amount of .5%. all the above- construed to release by an The trial court the verdict reduced parties, Brutger, named to-wit: Dan J. 92%, is the equivalent to Schreifels, Wahl, John E. A. Richard Nor- percentage liability assessed Marthaler, Don Beekley, man A. Joel than settling defendants other Schaefer, Nelson, Barck, Tom Gary Dale apparently multi- PCHA. The trial court Brutger, Rentz and in full and Dan J. Inc. share plied 7.5% agreed by undersigned it is the further $215,000 verdict and times the conclud- any sum or recovered judgment ed that the against Aukerman and Inc. or did be for The trial court should Party may be any other Third judgment not from the deduct the tortfeasor, joint be claimed a shall PCHA, apparently on the settlement from by given reduced the sum in considera- theory that because the found PCHA Release, tion for Hun- to-wit: One joint therefore not to be liable it was not ($130,- dred Thousand Thirty Dollars 15-8- tort-feasor under 15-8-11 to SDCL 000.00)or any propor- in other amount or Among the Uniform Tort- Contribution greater tion if the than consideration Law. Feasors paid may by as be determined a Court Appellant the contends that settlement jury, provided in 15-8-17 & SDCL in a agreement with PCHA written larger, (emphasis whichever sum shall be $20,000 paid the require manner would added) release deducted from the for the upon by pro- The statutes parties relied the regardless whether judgment, vide: negligent or not. We determined 15-8-15 agree. When disproportion there is such a Degen Bayman, 241 N.W.2d 703 joint fault among tort-feasors as to ren- (S.D.1976), the re- we held that amount inequitable equal der an distribution party ceived in settlement from a should be among liability by them of the common though from deducted the even contribution, degrees the relative of fault settling judicially party had never been joint of the tort-feasors joint tort-feasor. determined be a We determining sidered in prorata their adopted by Supreme view stated shares. Montgom- in Levi Court North Dakota SDCL 15-8-17 (N.D.1963), the ef- ery, 120 N.W.2d 383 injured A one by person release fect that the court will consider the issues joint tort-feasor, or after whether before determining by in pleadings as framed judgment, discharge not the other does party joint question whether is a pro- so tort-feasors unless release by As stated the North Dakota tort-feasor. vides; but the Supreme reduces claim Court: plaintiff charges Where the several de- Alaska’s version of the Uniform Contri- tort, Among fendants with and one of the bution Joint pro- de- Tort-Feasors Act vides: “When a release buys way given fendants its out of the ... suit and good faith persons to one of two or more given a release and covenant not to liable in tort for injury the same sue, go ques- the court will not into the it reduces the claim tort- [other liability tion of of such defendant. The ... in the amount feasors] test in such case is: Was the defendant paid consideration for it .” Alas- so, sued as a If tort-feasor? ka Code of Civil Procedure 09.16.040. In § remaining of the plain- defendants to the States, Layne v. (9th United 460 F.2d 409 tiff must be reduced paid amount 1972), Cir. sought the defendant reduction for such release or covenant not to sue paid the amount such defendant. question The of actual charged settlement party as a tort-fea- liability in tort of any of the defendants sor but found not liable for the harm. The discharged so by release and covenant not plaintiff argued that because the settler to sue is wholly immaterial. plaintiff’s was not liable for damages the 120 N.W.2d at 389. court required was not to deduct the settle- This treatment of the settlement amount ment judgment. from the paid by a defendant later found not liable Appeals Court of Circuit, for the Ninth plaintiff law, is the stance taken by applying Alaska stated: majority of prevailing view, courts. “The Layne misapprehends [Plaintiff] with some authority to the contrary, is that purpose and effect of 4 of the Uniform § must be so credited Act changed [the § While amount] [AS § 09.16.040]. [against judgment] even per- respect (i. e., where the common law in one providing son joint released was that release of fact a tort- one tort- feasor, feasor automatically does not plaintiff or was not release the liable to tortfeasors), Prosser, Torts, retained that all.” p. Law of § part of the embodying common law rule (4th 1971) (footnotes omitted). ed. Restate- public policy sound permitting a (Second) ment 885(3) (1977) of Torts § plaintiff to receive only the amount of his states: adjudged more, damages regard- and no payment A by any person made in com- less recovery. of the source of the Since pensation of a claim for a harm for which principle is that there can be but one others are liable as tort-feasors dimin- injury, satisfaction for the same whether ishes against tort-feasors, the claim or not party jointly the released is in fact made, least to the payment extent of the liable against with the defendant whom a whether or person making not the judgment is rendered is not relevant. payment injured person liable to the either case paid . . . “the amount agreed whether or not it is so at the for the release or covenant not to sue payment time of payment or the is made pro injured must per- reduce tanto the before or judgment. after judgment against son’s another.” (f) following Comment this section states in (citations omitted). 460 F.2d at 411 The part: pointed court also policy out the considera- Payments by made one who is not him- encourage tions that settlements —“the dis- self joint go liable as a tort-feasor position will to litigation, claims without injured simplification diminish the . . . person claim of the of the issues against requiring judicial determination.” 460 F.2d responsible others for the same at 411. harm if they compensation are made in

that payments claim. . . . These law, Interpreting Jersey New a basically are commonly by made one who fears Act, Mary- short version of the Uniform that he may be held liable as a tort-feasor stated, Appeals land Court of under facts bar, and who turns out not to be. similar to the in facts the case at that 552 group of but in settlement from the nine defend- potentially, not

where one liable fact, go judgment by . reduce the . . even ants must to a settlement makes “by to been or the amount though proved is later have either he claim provides liable to the the release that the total negligence free of and not reduced, greater than the consid- injured majority if person . . person paid.” or eration Their release states view is that whether not tortfeasor, against “any . recovered a . . released was fact Inc. Aukerman paid for the release . the amount . . . One by shall be reduced injured pro per- tanto must reduce ($130,- Thirty Thousand Dollars Hundred judgment against son’s another. 000.00) propor- or or 341,149 331, Md. A.2d Steger Egyud, v. 219 paid greater tion if than consideration 762, (1959). 767-8 jury a Court or determined 228, 208 Angelos, 44 N.J. In Theobald larger.” sum shall be . whichever (1965), Jersey Supreme 129 the New A.2d settling group found Court, through Justice speaking Chief however, early, By settling liable. was 92% Weintraub, rejected argument defendant’s its group pay could and did Jersey’s that New version of Uniform $215,000, $197,800, of 92% of required pro Act a full rata reduction of lump-sum payment a amounts from the Duncan, risk, delay to his and ex- reduce The court rendered him. held Therefore, pense, agreed the settlement. Act, Jersey’s which defines tort- New does not while Duncan’s hard cash total language 15- feasors in identical $215,000, right to that sum he waived 8-11, requires pro a tanto reduction of the deciding early. He cannot be settle paid judgment by the amount a settler urge heard that because now later found not liable where the settler is non-negli- found to have been though wrong. payor for the “[E]ven gent, money should not be considered its wrong not party ... judgment. stated in Luxen- toward his As plaintiff the sum in hand and there has Industries, burg v. 257 N.W.2d Can-Tex reducing his verdict hardship no evident 804, (Minn.1977), injured party may 807 N.J. at others that amount.” again if he has “received full recover 236, Wein 208 A.2d at 133. Chief Justice satisfaction, or which the law considers concept traub then discussed the of “full Gronquist v. (citing such . .” Ol- satisfaction,” citing the rule that there shall 159, son, N.W.2d 242 Minn. wrong be but one satisfaction for because (1954)). T. See also Couillard Charles unjust strong enrich policy Hospital, Miller Minn. 92 ment, 239, 44 A.2d at 135. N.J. 208 96, (1958). N.W.2d Angelos proposi Theobald v. stands for the to tion that “if the settles with one Duncan must considered have en- claimant charged wrong group in the of with the but who tered into the releases with it, knowledge fact is sum nine the party not a to the received settlers and PCHA with accepted applied . in the dollar amount he could reduction parties.” larger culpable satisfy the the later be deemed to share of verdict express- judgment, at 136. 15-8-17 44 N.J. at A.2d the since SDCL provides in ly for such a result circumstanc- The facts before aspect the us parties in have entered into es only present unique makes case is that provisions settlements under the Uni- in a can technical sense Duncan be form Act. to “full sidered have received satisfaction.” dollars, conclude, therefore, appellant In terms of actual he has realized We $150,000, monetary damages jury to Duncan whereas the determined liable awarding in he was entitled to Under SDCL court erred and that the trial 15-8-17, however, $130,000 against appellant. judgment received holding respect

Our to enter consistent with the views unnecessary makes it set forth opinion. in this to consider other claims of error. respect With appeal # APPEAL #12248 is affirmed. In cross-appeal this Duncan con HENDERSON, JJ., DUNN concur. given tends that certain instructions to the jury confusing were misleading. As FOSHEIM, JJ., MORGAN and dissent. our appeal discloses, discussion in # 12235 MORGAN, (dissenting). Justice concerning factual issues inju Duncan’s I straightforward; however, ries were rather dissent. relating the issues relationships to the in My disagreement is not with the basic this, volved among the various defendants in law involved application but rather with the quite complex. case were There were six to the facts of the instant case. While the ty-seven separate given instructions to the unjust author abhors enrichment of the

jury. instructions, Our review of these tak plaintiff, by application of the PCHA whole, en as a compels us to conclude that appellant’s portion of the they fairly apprised jury of the matters verdict, he given has or its before it. liability carrier a $14,- windfall in excess of Duncan has not met his burden of show- 000. ing that complained instructions view, my In the Uniform Contribution prejudicial. were Mere assertions of what Among law, Tort-Feasors SDCL 15-8-11 to jury may have concluded are insuffi- inclusive, 15-8-22 is primarily for the ad Christensen, Dwyer cient. 77 S.D. justment of liabilities between the (1958). 92 N.W.2d 199 appears There Secondarily, provides tort-feasors.* a ve presented sufficient evidence in the record hicle for settlement in advance of suit be upon which the complained instructions tween some but not all of the tort-fea- could be based. claimant, opposed sors and the as to the old covenant not gimmick. to sue

Finally, alleges Duncan that the tri al court erred refusing grant a new opinion The cases cited in the in favor of trial after the trial court was shown pro application an tanto of PCHA’s contri- signed by affidavit foreman of the alright go; bution are they far as how- stating that in spite ever, of direct instructions to none of them are on all fours with this contrary the foreman had reduced the case because none of them involve the ele- give verdict he intended plaintiff by the ment of additional tort-feasors who have by plaintiff’s received settlement. likewise uphold theory settled. We can A jury verdict may impeached pro unjustly tanto offset without- juror affidavit of a when the enriching appellant by applying has the PCHA made its determination on the basis of pro contribution tanto the initial chance. 15-6-59(a)(2); Fales v. appellants’ verdict and then arrive at liabili- Kaupp, (1968). 83 S.D. ty by multiplying N.W.2d 855 the result 7.5%. present however, affidavit case went to I case would first deduct from processes juror. mental of a According plaintiff’s percentage the initial verdict the ly, the trial refusing court did not err in comparative negligence, then deduct the grant upon contribution, a new trial based showing. this apply and then 7.5%. respect

With appeal # is reversed and the is re- hereby case I am authorized to state that Jus- manded to the circuit court joins with directions tice FOSHEIM this dissent.

* adjustment among trig- horizontal scheme of case the tort-feasors was not gered filing complaints. cross

Case Details

Case Name: Duncan v. Pennington County Housing Authority

Court Name: South Dakota Supreme Court

Date Published: Sep 26, 1979

Citation: 283 N.W.2d 546

Docket Number: 12235, 12248

Court Abbreviation: S.D.