Lead Opinion
[¶ 1.] Roger McMillin and Duane Hei-nert were employees at Mueller Feed Mill, Inc., located outside of Martin, South Dakota. On September 10, 2002, Roger and Duane died while cleaning an underground storage tank containing molasses used to
FACTS AND PROCEDURE
[¶ 2.] Mill has operated near Martin, South Dakota for over forty years. As part of Mill’s business, it produces livestock feed by processing grains into pellets and mixing those pellets with molasses. This makes the pellets stick together and gives them flavor. The Mueller family has operated the Mill since its inception and the current president is Frank Mueller. Fred Mueller (Frank’s father) is considered an owner of the Mill although his exact title is unclear.
[¶ 3.] The molasses used to flavor the pellets is stored in a large underground tank resembling a propane tank. The tank itself is approximately eight feet in diameter and twenty to twenty-five feet in length. There is a four-inch outlet pipe and a pump at one end that distributes the molasses to a conditional chamber to be mixed with the pellets. There is only one access point into the tank, through a hole at the top covered by two lids.
[¶ 4.] On September 10, 2002, Frank Mueller made the decision to clean the molasses tank. That morning, after removing the tank’s lids and leaning his head about, a foot into the tank, Frank inspected it with a flashlight and determined someone needed to go into the tank and remove the chunks from the walls and the outlet. Frank then met with his employees, Roger McMillin, Duane Heinert, Harlan Richards and David McMillin to discuss their daily assignments. Roger and Duane were assigned to replace the bearings in a leg on top of the Mill that was located outside of the building housing the molasses tank while David, Harlan and Frank went to the mill room to clean the molasses tank.
[¶ 5.] Around 8:30 a.m., David lowered Harlan into the tank while Frank watched from the side. Just as Harlan’s head was about three or four inches from the top of the hole, Harlan told Frank and David that he could not breathe and to take him out of the hole.
[¶ 6.] As Roger lowered Duane into the molasses tank, Frank went back to his office. By the time Roger got off of the forklift and looked down into the tank, Duane was face down in the bottom of the tank. Roger then yelled to Harlan and David for help and Harlan went to Frank’s office to tell him something was wrong in the mill room. When Frank entered the mill room, Roger was standing above the tank’s opening and was trying to get Duane to answer. Frank looked in the tank and saw Duane laying crossways in the molasses. Roger told Frank that he thought Duane had suffered a heart attack. Frank immediately left the mill room to obtain a safety harness to remove Duane from the tank. While Frank was out of the mill room, David moved into the driver’s seat of the forklift and lowered Roger into the tank. After Roger was completely in the tank, Frank returned to the mill room to find Roger trying to turn Duane over. At that moment, Roger fell on top of Duane. Frank rushed to his office and called 911. Frank then waited in the mill room until the emergency personnel arrived.
[¶ 7.] When emergency services arrived, Duane and Roger were removed
from the tank. Both were pronounced dead at the scene and the cause of death was later described as “asphyxiation/aspiration” and/or “suffocation secondary to exposure to an environment high in hydrogen sulfide and low in oxygen.” The Hazardous Material Team from the Rapid City Fire Department concluded that oxygen levels in the tank were around 5.7 percent, the carbon monoxide level reached 62 ppm, the LEL alarm sounded and hydrogen sulfide rapidly climbed and saturated the sensor. In other words, the lack of oxygen and high level of hydrogen sulfide made it impossible to breathe in the tank. When asked how this gas was produced, the Hazardous Material Team suggested the molasses fermented in the hot, dry summer which was above the average for heat and dryness.
[¶ 8.] Dale McMillin, as personal representative for the estate of Roger McMillin, and Rolan Heinert, as special administrator for the estate of Duane Heinert, brought an intentional tort claim arising out of the workplace deaths of Roger and Duane against Frank and Fred Mueller individually and the Mill. The defendants moved for summary judgment as a matter of law claiming that SDCL 62-3-2 limited the plaintiffs’ exclusive remedy as a recovery under the South Dakota Workers’ Compensation Act. The plaintiffs disagreed and argued that a 1999 Safety Plan, implemented by the Mill and submitted to the Occupational Safety and Health Administration (OSHA), removed the recovery from the exclusivity of the workers’ compensation laws and into the realm of intentional tort law.
STANDARD OF REVIEW
[¶ 9.] Our standard of review for the grant or denial of a motion for summary judgment is well’settled.
Summary judgment is authorized if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. SDCL 15 — 6—56(c). We will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided. Bego v. Gordon,407 N.W.2d 801 , 804 (S.D.1987). All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party. Morgan v. Baldwin,450 N.W.2d 783 , 785 (S.D.1990). The burden is on the moving party to clearly show an absence of any genuine issue of material fact and entitlement to judgment as a matter of law. Wilson v. Great N. Ry. Co.,83 S.D. 207 , 212,157 N.W.2d 19 , 21 (1968).
Holzer v. Dakota Speedway, Inc.,
ANALYSIS AND DECISION
ISSUE
[¶ 10.] Whether the trial court committed reversible error when it granted summary judgment in favor of defendants pursuant to SDCL 62-3-2.
[¶ 11.] SDCL 62-3-2 was the basis for the trial court’s grant of summary judgment in favor of the defendants. That statute provides:
The rights and remedies herein granted to an employee subject to this title, on account of personal injury or death arising out of and in the course of employment, shall exclude all other rights and remedies of such employee, his personal representatives, dependents, or next of kin, on account of such injury or death against his employer or any employee, partner, officer or director of such employer, except rights and remedies arising from intentional tort.
SDCL 62-3-2. (emphasis added).
[¶ 12.] The necessity of this statute has recently been discussed by this Court where it was recognized that:
In the workers’ compensation scheme, exclusivity serves two important values: (1) it maintains the balance of sacrifices between employer and employee in the substitution of no-fault liability for tort liability, and (2) it minimizes litigation, even- litigation of undoubted merit. Exclusiveness imparts efficiency to the*222 workers’ compensation system. Every presumption is on the side of avoiding superimposing the complexities and uncertainties of tort litigation on the compensation process.
Fryer v. Kranz,
[¶ 13.] This is because the legislature intended workers’ compensation to be the exclusive remedy for employees injured on the job “in all but extraordinary circumstances.” Ham v. Continental Lumber Co.,
[¶ 14.] Recently, this Court clarified the type of employer conduct that is not considered “intentional.” Fryer,
[¶ 15.] In addressing this issue, we note that the availability of “the intentional tort exception to workers’ compensation is fact specific.” Ham,
[¶ 16.] In Fryer; an owner of a building employed Fryer to help clean the tile floor.
[¶ 17.] Likewise, in Ham, an old sawmill was utilized because the new sawmill was having some mechanical difficulties.
[¶ 18.] In Brazones, a group of employees were sent into an empty petroleum holding tank to clean the interior walls.
[¶ 19.] In Jensen, the plaintiff was an “inexperienced, inadequately trained, 14-year-old boy ordered by his employer, without any warning of the danger, to perform a maintenance task which the employer knew from personal experience to be risky.”
[¶ 20.] Finally, in VerBouwens v. Hamm Wood Prod.,
[¶ 21.] In the case at hand, little evidence has been produced that either Frank or Fred Mueller knew there was a possibility of asphyxiation when inside the molasses tank, let alone a substantial certainty. It is true that a death occurred at the Mill in 1999 which prompted the Muel-lers to implement an OSHA approved safety plan. However, this death was due to a fall that occurred in an area other than the molasses tank. Also, even though the safety plan did have a specific section on precautions and possible dangers when confined areas were entered, the Muellers denied having specific knowledge of those sections. We do not categorize the Muel-lers’ liability by what injuries they should have known were possible or even probable but, instead, look to their actual knowledge of a dangerous condition, the substantial certainty of an injury to occur, and their requirement of an employee to still perform. Harn,
[¶ 22.] The estates also urge this Court to consider not only the safety plan and its directives, but also the fact that moments before the deaths occurred another employee had trouble breathing while being lowered into the tank. However, a person having trouble breathing when being lowered into an underground tank with only one exit does not necessarily mean that asphyxiation is substantially certain to occur. In fact, as stated by Harlan Richards himself, he had trouble breathing because he was claustrophobic and felt panicked. Coupled with the fact that Frank Mueller previously lowered his own head into the tank for about a minute with no difficulties, it is hard to fathom that the Muellers had any knowledge of possible injury, much less a substantial certainty that asphyxiation would occur.
[¶ 23.] Additional factors lending to the Muellers’ lack of knowledge concerning asphyxiation while in the molasses tank were the length of time the tank had been utilized and the number of entries into the tank made by the Muellers, their immediate family members, and their employees. It is irrational to believe that if the Muel-lers knew there were noxious fumes in the tank that they would purposely expose themselves and their family members to them on numerous occasions. In fact, the molasses tank has been in operation for over forty years and was cleaned (by hand) approximately once a year without a hint of noxious fumes encompassing the area of the tank or complaints of illness after working in the tank. Other than the generalized precautions and warnings about confined spaces in the safety plan, the Muellers had no reason to suspect that the molasses could possibly ferment and release hydrogen sulfide.
[¶ 24.] Under these circumstances, it is hard to believe that the Muellers should have known of the possibility of hydrogen sulfide being present in the tank. At most, their actions constituted negligence for not following the safety plan as approved by OSHA. However, this negligence did not rise to the level of intentional tort under the narrow exception to the exclusivity of workers’ compensation. See Ham,
[¶ 25.] Therefore, the trial court’s grant of summary judgment is affirmed.
Notes
. The outer lid is a heavy man hole type cover while the inner lid is a lighter version of the outer cover.
. Harlan later testified upon deposition that his breathing difficulty was "more like a panic thing” due to being claustrophobic.
. In 1999 a work related accident occurred at the Mill which led to the death of another employee. The 1999 accident was a fatal fall that occurred in a different area of the Mill. After the fall, defendants submitted a safety plan to OSHA which included a section on page 8 that generally stated confined spaces such as tanks can create a suffocation or asphyxiation hazard. The safety plan also contained a section labeled “Confined Space Entry” which generally declared that injury or death attributed to careless procedures and
. We note that the presence of the hydrogen sulfide due to fermented molasses was only a hypothesis given by the Hazardous Material Team and that no scientific study has been done to prove that position.
Concurrence Opinion
(concurring in result).
[¶ 34.] I agree with the majority writing in its conclusion that there is little evidence in this tragic case to show that the employer knew there was a possibility, much less a substantial certainty, of asphyxiation. I write only to express my disagreement with the precedent the majority relies on: Harn v. Contl Lumber Co.,
[¶ 35.] Section 8A of the Restatement of Torts provides: “The word ‘intent’ is used ... to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.” 1 Restatement (Second) ToRts § 8A (1965). Comment (b) to that section explains that “[i]f the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result.” Id. § 8A cmt b.
[¶ 36.] Other jurisdictions have likewise endorsed the use of the substantial certainty standard as a lesser burden than actual or virtual certainty. In Turner v. PCR, Inc.,
[¶ 37.] To the extent that they use the virtual certainty test, it is time to discard Ham and Fryer and return to the correct standard for assessing intentional conduct in worker’s compensation cases.
Concurrence Opinion
(concurring).
[¶ 30.] I concur in the Court’s opinion and write only to comment upon the definition of an intentional tort.
[¶ 31.] As Justice Konenkamp points out, our cases have utilized a “substantial certainty” standard and a “virtual certainty” standard. See infra ¶¶ 34-35; compare Brazones v. Prothe,
Concurrence Opinion
(concurring in result).
[¶ 32.] In Fryer v. Kranz, we adhered to what has been characterized as the “virtual certainty” test for intentional torts.
[¶ 33.] This is not an evolution of a common law doctrine. It is simply the statutory construction of SDCL 62-3-2 to define what constitutes an intentional tort. Since Fryer was decided by this Court, five sessions of the South Dakota Legislature have come and gone. We presume the Legislature acts with knowledge of our judicial decisions. Sanford v. Sanford,