Strain v. Christians

Strаin, Spe as the Art and Verla STRAIN Ty of the Estate of

cial Administrators Strain, Deceased, Ap Plaintiffs and

ler

pellees, CHRISTIANS,

Harry Defendant Appellant.

No. 17403.

Supreme of South Dakota. Court

Argued Oct. 1991. April

Decided Woods, Fuller, Thimsen, Tyler’s parents Gary Tyler Shultz & at the knew time P.C., Falls, Smith, operating was Christians’ and did Sioux defendant and tractor object. Mr. he had appellant. Strain testified helped Christians in 1986 and had driven steering Christians’ tractor. He noted the WUEST, Justice. on the tractor was loose and Christians’ (The Strains), Art and Verla Strain difficult, running high tractor was if at a special administrators of the estate of their speed, “keep to ... between the ditches.” deceased, Tyler (Tyler), com- son Strain requested Tyler Christians take a tractor survivorship and menced a death operation safety prior his course to third Harry against Appellant, action Christians year employment of with Christians. Com- (Christians). The matter came on for trial pletion permits employers of such a course jury. a before a returned verdict employ sixteen-year-olds to fourteen tо in $75,- in in the Strains’ favor the amount of occupation involving an such activities appeals. 000. Christians We affirm. violating the Fair Labor Standards (F.L.S.A.), part fully Act discussed more age. Tyler years was fourteen He 7-8, 1988, Brookings I. On June Coun- had on a farm most of his life. At the lived ty put twenty-hour Extension Office on a death, time of the Strains lived on a Occupation Safety “Hazardous Course” approximately one-quarter farm of a mile pursuant part 570 of the Code of Federal Tyler from Christians’ farm. worked for Regulations,2 which will discussed in farm, and, family his father on the more detail in I. began to work his farm for Christians at Tyler operate after school. did not Chris- Tyler successfully completed two written big During tians’ two tractors. his second driving during pro- tests and a test Christians, year Tyler stacking with started gram. county On June exten- hay and used small tractors and their bails agent charge safety program sion attachments. Tyler certifying issued to a certificate he successfully completed training had Tyler In the fall of when was thir- program. Tyler oper- was then certified old, years began teaching teen Mr. Strain “twenty ate a tractor with over PTO horse- operate family's him to use and trac- power,” and to or an “[connect disconnect] tors, including a 1974 International model implement parts of its to or from Tyler begun 1066 tractor.1 After had such a tractor.”3 Mr. Strain acknowl- year Christians, third with edged he and his wife were both aware April operate he was allowed Tyler successfully completed and had taken Christians’ International model 1066 machinery safety a tractor and farm course field, stacking hay tractor the farm request at the of Christians. pulling implements. The 1973 model 1066 11, 1988, essentially morning Tyler was same as the Strains’ On the of June 1974 model 1066 Both the Strains’ at farm. He was tractor. went to work Christians’ tractor; power- hay and Christians’ tractors were more to stack with Christians’ con- “twenty horsepower.” sequently, equipped ful than PTO it was with a Chris- bucket Tyler Tyler tians allowed his tractor loader and a double bale fork. drove repair shop alone. tractor to the Christians’ Tyler required operated 1. Mr. Strain testified that had the tractors. Each student is then model pass Finally, Strains’ 1066 tractor on at least one occa- each student a written exam. stay Tyler sion. Strain testified he complete driving they pull where must test training for an hour him to drive tractor implement back of a tractor two-wheel stay keep eye and then tried to in the area to through driving course. maneuver on him. actually program completed 3.The certi- Generally, during extension office’s machinery in addi- fied him to work with other course, go instructors over materials various powerful tion to tractors. Next, relating safety. with students to tractor parts the instructors show students the actual case, (a plaintiffs’ counsel Krueger self-employed welder Christians’ moved Lyle first, arguing for a directed verdict purpose welding federal repairman) for the preempted imposing liability law civil load- crack on the reservoir of the hair-line against Christians under SDCL 60-12-3 question by Krueger, response er. to a second, there insufficient was evidence problems having he no Tyler stated was jury Tyler employed to find was in operation. At morn- tractor in its with the occupation an hazardous to life or health. Christians, end, and another ing’s Tyler, The trial court denied that motion. The to town to have lunch. farm hand went $75,000 in jury returned a verdict favor of lunch, Tyler took to where After Christians judg- the Strains. The trial court entered him parked and told the tractor was against ment Christians for that amount. it to Christians’ home. Chris- drive back nap. to take a Short- tians thеn went home appeals raising Christians four issues: thereafter, upside the tractor was found ly I. Whether SDCL 60-12-3 has been over, It down and on fire. had rolled preempted by reg- the Tyler smashing Tyler the cab inside. promulgated pursuant ulations killed. was thereto. ap- investigating officer stated it properly II. Whether the trial court re- gravel off the peared the tractor had eased testimony regarding fused to admit slight angle over a distance of very at a contributory negligence Ty- of appeared 100 to 125 feet. It approximately give ler and to an instruction on the get Tyler jerked the wheel of the tractor to issue of of roadway The trac- Tyler. onto the surface. back slipped sideways and overturned.

tor then properly III. Whether the trial court re- testimony regarding fused to admit commenced a The Strains parents’ knowledge of and con- survivorship against deаth and action Tyler’s employment and to sent to Christians, alleging em- Christians had give an instruction on the defense occupation dangerous in an ployed contributory negligence of the of prohibited by health as his life and parents. (1978) (South Dakota’s child labor 60-12-3 statute).4 had em- Christians denied he verdict was Whether IV. occupation. law, ployed Tyler dangerous against in a and whether the alternative, by Tyler’s employ- $75,000 supported he asserted award was knowledge and consent evidence. ment was with the sufficient parents, his own of these items seriatim. We will discuss proximately caused his death. LABOR STATUTE I. CHILD trial, neither During the court ruled that PREEMPTION. pertaining to party present could evidence are Tyler, or of 12 of F.L.S.A. contributory negligence of Sections 3 and to SDCL 60-12-3. substantively trial court refused similar Mr. or Mrs. Strain. The “oppres prohibits employing of contrib- on the issues Section to instruct commerсe, and Section in sive child labor” utory negligence Tyler of or of the Strains. under employment of a child provides end of the objected. At the Christians 1991) "oppressive child labor” (amended defines provides: § 6.F.L.S.A. 4. SDCL 60-12-3 as: years age of shall be child under sixteen No employed any occupation dan- at time (1) employment under which condition [A] morals_ life, health, gerous or Viola- years age any employee sixteen under the is a Class 2 misdemeanor. tion of this section (other employed by employer than an apply em- to minors This section shall standing person of a or a by parents. ployed their or a child parent employing own child his years age custody sixteen under employer shall em- 12 states: “No § 5. F.L.S.A. manufacturing or occupation other than an any oppressive in commerce or ploy child labor by Secre- mining an found or goods productiоn of for commerce[.]" in the tary particularly hazardous 212(c) (1988). of Labor to U.S.C. § age any non-parent feasible; or, ployer of sixteen consti- where where not “oppressive feasible, tutes child labor” unless the safety ... his is checked provides by regulation Secretary of Labor midmorning, at least at or order that the of chil- noon, and mid-afternoon. years dren between fourteen and sixteen (1)-(3) Subparagraphs of 29 CFR 570.- age occupations mining other than or 72(b) training programs, describe various manufacturing “oppres- not constitute does require all of employee poten- or 203(0, sive child labor.” U.S.C. §§ (1) employee tial years to be fourteen 212(c) (1988). employer violating An older; (2) age complete training subject F.L.S.A. is to substantial criminal program operation machinery; on safe penalties. and civil 29 U.S.C. §§ (3) successfully complete to a written ex- (1988).7 covering safety; (4) amination and to dem- Subpart Chapter E-l of 5 of Title 29 of ability operate onstrate his or her to ma- Regulations the Code of Federal addresses addition, chinery safely. regulation “occupations agriculture particularly in requires employer keep to on file a employment hazardous for the of children stating certificate completed the child has age According below the of 16.” to the required training all the testing. and Labor, Secretary “[ojperating of a tractor Where a child pursu- obtains certification horsepower, of 20 connecting over PTO or program, did, ant to a an disconnecting implement any or an of or its employer may operate hire him to tractors parts “par- to or from such a is tractor[ ]” greater twenty horsepower of than PTO or ticularly employment hazardous chil- [for] machinеry subjecting other himself age dren below the of sixteen.” 29 C.F.R. penalties to criminal and civil under 570.71(a)(1)(1990). Thus, employment of § statutory F.L.S.A. Christians contends this years age a child under sixteen by of a non- regulatory preempts and scheme South Da- in such an would normal- kota’s disagree. child labor statute. We

ly “oppressive constitute child labor.” employment We have held exemptions gen- Pertinent do exist to the whether “life, dangerous to exemptions eral rule stated Those the child’s health or above. (1990): question are in jury. contained 29 C.F.R. 570.72 morals” is a of fact for the § Picasso, 567, 570, Koenekamp v. 64 S.D. (b) Federal Extension The Service. (1936). 269 77 N.W. Accord Dillman v. findings and declaration of in fact Madsen, (D.S.D. F.Supp. 688 570.71(a) apply shall not to [section] 1988). Section of F.L.S.A. states the employment of a child under 16 policy of F.L.S.A. is to correct condi- years age occupations of in those tions detrimentаl to the health and well- successfully completed which he has being (1988). of workers. 29 U.S.C. 202 training programs one or more de- § (b)(1), paragraph (2), (3) Congress’ Section 18 further indicates in- scribed or provided provide of this section tent was to a minimum floor for he has been protection, employer ceiling beyond instructed child not a on safe proper operation specific and states could not exceed. 29 U.S.C. 218 § use; equipment (1988). he is to is continuous- also 48A See Am.Jur.2d Labor and ly closely supervised (1979). and the em- Labor Relations § employment ages [Secretary of children between the determines that such em- Labor] eighteen years ployment periods sixteen and or detrimental is confined to which will well-being) any occupa- schooling their health or not interfere with their and con- tion. The of the Children’s ... Chief Bureau ditions which will not interfere with their provide [Secretary by regula- shall Labor] well-being. health and employment tion or order that the 203(1) (1988). em- § 29 U.S.C. ployees ages of between the fourteen and six- subjects years occupations 7. A § teen other than manufac- violation of to a $10,000 or, turing mining shall fine of not not be deemed to more than if not first offense, oppressive jail plus up constitute labor if to the to a term of to six months (1988). penalties. extent that the Chief of the Children’s Bureau civil 29 U.S.C. §§ provides: provision legislation state wages the area of or Section “[N]o relating conditions, to the of child working this Act nor implicitly does it justify noncompliance labor shall prohibit regulation by state occupying the municipal ordinance Federal or State law or leaving whole field and no room supple- establishing higher standard than the mentary Levy, Divine v. provisions); state under this Act.” 29 standard established F.Supp. (D.C.La.1940). Accord 29 C.F.R. (1988). U.S.C. § Secretary’s findings merely placed Chris- 570.50(a) Indeed, regulations § employing Tyler tians’ act of pursuant express- promulgated greater twenty tractor with than PTO ly “[CJompliance with ... state: [F.L.S.A.] horsepower prohibitions outside F.L.S.A.’s any person liability does not relieve un- against “oppressive child labor.” higher child der other laws that establish prescribed by than those labor standards II. CONTRIBUTORY NEGLIGENCE pursuant to the act.” 29 C.F.R. 570.129 OF THE DECEDENT. (1990). Thus, if an individual state where employed child labor child is has a stricter trial, During the the court ruled employment, code and standard of the fed- party permitted that neither would be adopt apply eral law the state’s will present regarding evidence the contrib McGovern, Childrens stricter standard. P. utory negligence Tyler. The trial court Advocacy Rights and Child Labor: on refused, Christians, despite objections by Worker, 28 S.D.L.Rev. the Child Behalf of instruct on the defense of contrib 293, (1983). 297-98 utory negligence. Permitting employer an to be held dangerous Whether an is damages result from liable for civil life, health or morals of a child was would not his violation of SDCL 60-12-3 Koenekamp determined accomplishment create an “obstacle to the Thus, case, Tyler’s safety in this question. purposes full and execution of the ob training to the determination was relevant jectives” provi child labor F.L.S.A.’s statutory violation existed. of whether a Fidelity sions. See Federal Sav. & Loan properly The trial court admitted evidence Cuesta, 141, 156, Ass’n. v. De La 458 U.S. safety training. The Koenek- 3024, 664, 3014, 102 S.Ct. 73 L.Ed.2d 677 amp court also held that violation (1982) (actual regu conflict exists between sufficient, standing statute was child labor promulgated by Federal Home Loan lations alone, in the employer liable to render decision); Doc Bank Board and court state Koenekamp, 269 N.W. at injury. event of Redo, Hospital, tors Inc. v. Silva F.2d 558 Koenekamp However, court de- 619, (1st Cir.1977). Indeed, 622 contributory negli- clined to decide whether private provides no federal cause of action cause of gence a defense to a constituted Bowl, Sport Jensen v. for its violation. alleging a of SDCL 60-12- action violation Inc., Bre 370, (S.D.1991); 373 469 N.W.2d noted, Koenekamp court 3. Id. As the Industries, Inc., 467 itwieser v. K.M.S. this issue. split authority exists as to denied, 1391, (5th Cir.1972), cert. F.2d 1394 different Id. split This exists because 1445, 969, 410 93 35 L.Ed.2d 705 U.S. S.Ct. given effects to courts have different (1973). Therefore, Secretary of Labor’s statutes. See An- enactment of regarding safety findings De- Contributory ‍‌‌​​​‌‌‌‌​‌‌​​​​‌‌​​‌​‌‌​​​​‌​‌‌‌​‌‌‌‌​​‌‌‌​​​​‌‍Negligence as notation, sixteen-year-olds trained did fourteen to Upon Action Based Vio- to Cause of fense preempt conclusion that jury’s not Statute, 171 A.L.R. 894 (1947), lation of “occupa in an employed Tyler Christians (1950). superseded by 10 A.L.R.2d 853 health, dangerous life, or morals.” tion of a child Jensen, courts have held violation (F.L.S.A. Some See 469 N.W.2d at 373 per “nеgligence labor statute constitutes preempt does not South Dakota’s worker’s Dillman, See, F.Supp. e.g., at 688 Maccabees Mut. Life compensation law); se.” Perez-Rosado, 1403-04, required to 45, plaintiff 1405. The Ins. Co. v. F.2d 46 641 proximately (1st Cir.1981) (F.L.S.A. of the statute prohibit prove violation does 788 son, 1164, injuries. Accordingly, (La.1978); child’s

caused the 360 So.2d 1169 Vin Sons, Inc., contributory negligence the child’s is a de Riggi cent v. & 406, 30 N.Y.2d fense to such a cause of action. See Dar- 689, 693, 380, 386, N.E.2d 334 285 N.Y.S.2d Kohlmann, 164, sam v. 123 La. 48 So. 781 1157, (1972); Boyles A.L.R.3d 1163 v. 56 (1909) (contributory negligence a defense Hamilton, 492, Cal.App.2d Cal.Rptr. 235 45 child acted in violation of instruc where 399, (1965); Pitzer v. M.D. Tomkies & 403 duties, reasoning that child tions and labor Sons, 268, 437, 136 W.Va. 67 442 S.E.2d should not be construed to abro statutes (1951) (overruling Virginia- Norman v. ordinary relating to gate the rules contrib Co., Pocahontas Coal 405, 68 W.Va. 69 utory negligence unless the statute is so (1919)); Langston Degelia, v. 857 S.E. 186 no worded as to leave doubt defense 738, Tam (Tex.Civ.App.1945); S.W.2d 739 еxcluded); Armstrong’s Adm’r. v. pa Shipbuilding is to be Engineering & v. Co., 750, Ky. Sumne & Ratterman 211 278 Adams, 419, 403, 132 Fla. 181 So. 406-07 111, (1925) (in cause of action to S.W. Hatcher, (1938) (reaffirmed in Baldridge v. death, recover for child’s child’s contrib Dusha v. (Fla.App.1972)); 266 So.2d 112 defense); utory negligence constitutes Co., Virginia Rainy & Lake 145 Minn. 209, Campbell, Besonen v. 243 Mich. 171, 172, 482, 482, 632, 23 A.L.R. N.W. N.W. Heine, Karpeles (1920); v. 227 N.Y. However, overwhelming majority (1919); Louisville, H. & 124 N.E. jurisdictions which have addressed this is- St.L.Ry.Co. Lyons, Ky. sue have held that (1913) (a S.W. master is an Typically, is not a defense. such courts safety ‍‌‌​​​‌‌‌‌​‌‌​​​​‌‌​​‌​‌‌​​​​‌​‌‌‌​‌‌‌‌​​‌‌‌​​​​‌‍employees); insurer of the of child have reasoned that child labor statutes are Co., Pinoza v. Northern Chair Wis. responsibility intended to the entire (1913) (violation 140 N.W. 84 of child so that he is liable for equivalent gross negli labor statute to injury though to the he child even has defense); gence; contributory negligence is not a good plaintiff only acted in faith. The need Min.Co., v. Pittston Coal Lenahan statute, show a violation of the which must 311, (1907). 218 Pa. 67 A. 642 be resolved in- the the first Dusha, purpose As stated in “The of the stance, injury Legal to the child. protect statute is to children in [child labor] proximate causation is not issue because employ- life and prohibiting limb their legislature the has determined causation dangerous occupations where[,] ment in be- short, exists. In once a violation estab- immaturityQ] they likely cause of their are lished, these cases have construed child inappreciative prone of risks and to be impose statutes to strict or absolute careless and heedless.” Dusha 176 N.W. Prosser, Contributory Negli- liability. W. 482, Statute, holding at 23 A.L.R. at 634. Courts gence as to Violation Defense of employers absolutely typically reason (1948); liable D.L. 32 118-120 Minn.L.Rev. Huebner, purpose that “the evident of the statute Friederichs v. Wis.2d employer would be defeated if the (1983)'(providing 329 N.W.2d were 912-18 permitted up contributory negli- detailed to set discussion of the difference be- child, gence negligence per legislature and that the tween se and absolute liabil- ity). following contributory The hold must have intended that no such defense cases Boyer supra, v. John- negligence Prosser, is not a defense: should be available.”8 at (1965) (Second) pro- provide pertinent 8. Restatement Torts The comments to § § 483 part: vides: are, however, exceptional c. There statutes § Defense to Violation of Statute place respon- which are intended to the entire plaintiffs negligence contributory The bars sibility upon for the harm which has occurred negligence his of the defen- may the defendant. A statute to found consisting dant of the violation of purpose particularly have that where it is en- unless the the statute is to effect of protect acted in order to class a certain of responsibility entire such harm as has oc- persons against inability protеct their own to upon curred the defendant. prohibits themselves. Thus a statute 101; legislature (citing Karpeles, attempting prevent 124 N.E. Pi was 84; at 975- Lyons, outlawing employment youth per- 140 N.W. 159 S.W. naza of Annot., at 76). supra, 10 A.L.R.2d Accord subject form such activities. To a child to Keeton, Keeton, Dobbs, 855; D. R. D. W. defense would Owen, the Law Prosser and Keeton on goal. defeat this of (hereinafter (1984) at 461-62 Torts § hold, foregoing, We consonant Keeton). Prosser wrongful death that a action based on an liability lim- generally has been Absolute alleged violation of 60-12-3 is not of action to situations where the cause ited neg- the defense subject contributory particu- of a based violation was ligence the deceased. type statute —one enacted for lar so, recognize doing legislature’s we particular persons protection of a class of goal passing the child labor statute to incapable protecting them- are who from protect children in dan- (Second) of Torts selves. Restatement where, occupations gerous because of their Dusha, 176 c. also 483 comment See § they immaturity, likely inappreciative are Seattle, 482; Sharpness N.W. prone to of risks and carelessness. P.2d The Wash.2d just statute is such a statute. child labor III. NEGLIGENCE CONTRIBUTORY (Second) com- of Torts Restatement § THE OR CONSENT OF e. ment PARENTS. purpose our child labor statute The court evi trial refused to admit neg- protect children own is to their concerning the consent dence Strains’ The statute is a declaration ligence. employment. Tyler’s par Both of specified age children under do Tyler’s employment. ents were aware discretion, and possess judgment, a cer They aware had obtained were in the engagement caution essential to allow permitting tificate oсcupation. Am.Jur.2d prescribed powerful him to tractors (1970). To hold Master and Servant Ty violating They aware were subject to the defense of contrib- a child operating Chris duties would include ler’s utory emasculate International Model 1066 tractor. tians’ cases, Indeed, in most child labor statute. by brought a wrongful A death action is child’s is a sub- it is the which recover for loss- beneficiaries to deceased’s injury cause of the sticks his stantial —he as a result of the victim’s es sustained auger into an to clear it without hands Keeton, supra, & death. Prosser power, attempts shutting off the or he Smith, v. 367 N.W.2d Flagtwet machinery turning off also disconnect See (S.D.1985). parents’ con- Whether the It is that the power. exactly the this result clearly plaintiff action may who bases his firearms to be a child the sale of minors intended, among protect purposes, from not barred other violation of the statute is agаinst inexperience, negli- their lack contributory them own recovery by any form of negligence, tendency judgment, and toward Thus, gence. from he is not barred solely responsible to make the seller and any voluntarily exposing risk by for himself to a resulting sale. In to them harm from recognize would as unreason- which an adult purpose a case the of the statute such able, respects in other nor conduct which contributory negligence of defeated if the be the minor were negligent reckless in be or even would adult, recovery. permitted to bar his brings inattention as when his careless machinery. moving into contact with him forbidding labor e. Child statutes. Statutes (Emphasis supplied.) employ- employment their children or dangerous occupations a cer- below ment age customarily as intended tain are construed against protect and even them carelessness immaturity. incidental to their recklessness child labor is construed If a statute f. Section, purpose this for the stated in enacted policy protecting life limb of their child in a dan- employment of

sent to discouraging employment constitutes a bar to re- children their gerous wrongful Dusha, death cause of covery dangerous occupations. under a im- 483, an issue of first presents action also at 635.9 find N.W. at A.L.R. We general The rule pression in this state. reasoning persuasive. creating a cause of action under statutes parents Ty- knew of It is true the here beneficiary’s a wrongful death states employment. Certainly ler’s that would be beneficiary him- recovery is if the barred in most case where a child is true guilty self dangerous occupation. employed a contributes to the death proximately statute, however, discouraging is aimed at Annotation, Contrib- of the decedent. hiring perform employers from children to Beneficiary as utory Negligence Affect- tasks, discouraging parents not at such Stat- ing Action under Death Survival permitting employment. Were from (1948). ute, Some 2 A.L.R.2d to hold the consent to we Strains’ parent procures a courts have held where only employment recovery, their bars employment in vio- or consents to a child’s parents could recover for the death of who statute, parent lation of a child labor ignorant their child those of their would be recovering may barred from addition, occupation. such a child’s child, though even wrongful death of inequitable If holding would cause results. proximately wrongful death results employ- to his child’s consented of the employment disobedience child injured, ment and the child was Parker, 428 S.W.2d statute. Totten v. regardless parent’s could recover (Ky.1968); E. Moore Lucas Stave Co. guardian consent because he could have Adm’r., 262 Georgia v. Overbee’s bring the of action on his behalf. On cause Besonen, (Ky.1953); S.W.2d killed, hand, if the other the child was Adm’r, 303; Armstrong’s at N.W. beneficiaries, parents, they are the because 115; Keystone Swope S.W. at Coal & recovering because would be barred from Co., 89 S.E. Coke 78 W.Va. Thus, employ- negligence. of their own er because the would be rewarded courts, however, have held where Other certainly results were was killed! These employed a child is violation of a child legislature when it not intended parent’s consent Therefore, enacted the child labor statute. recovery for the employment does not bar parent’s consent to we hold Boyer, 360 child’s death. So.2d occupa- dangerous in a of his or her child 1171; Tampa Shipbuilding, 181 So. at at parent’s recovery in a not bar the tion does 407; Dusha, at 23 A.L.R. at 176 N.W. brought wrongful death cause of action 86-87; Pinoza, 140 at 635. See also N.W. statute. pursuant to the child labor 975-76. The Dusha

Lyons, 159 S.W. at policy child recognized court the behind THE OF IV. SUFFICIENCY penalize employers labor statutes is to who JURY VERDICT. statute, in employ children violation of the concerns final contention Christians’ penalty parents for impose not to a First, argues the jury’s he verdict. permitting employment. The Dusha law, restating the against verdict is implied permitting parent’s consent court previously. We arguments same discussed for the child’s bar any further. legislature’s need not discuss those issues death would contravene the they guardians, discussing contributory negli- parents where will of their or 9. While whether gence subjected dangers of action based was defense to cause on account of be to serious a violation of its child labor bodily injuries, on inadvertently receiving Supreme Wisconsin Court stated: respect supreme to the сare in evince such itself, incline to the side accord- employment, court should [T]his as to make the matter greatest dignity legislative ing efforts criminal. children, security against even conserve Pinoza, N.W. at 86-87. being employed consent their consent and Second, $75,000 argues Christians engage appellate court to in review of supported by award is not sufficient evi- this issue.

dence. judgment is affirmed. 15-6-59(a) ‍‌‌​​​‌‌‌‌​‌‌​​​​‌‌​​‌​‌‌​​​​‌​‌‌‌​‌‌‌‌​​‌‌‌​​​​‌‍(1984) provides part:

SDCL HENDERSON, J., concurs with a A may granted any new trial to all or writing. parties of the and on all or of the any following issues for of the causes: MILLER, C.J., specially. concurs * * * * * * AMUNDSON, JJ., SABERS and dissent. (6) Insufficiency of the jus- evidence to HENDERSON, (concurring). Justice tify the verdict or other decision or law; against it is In totally joining majority opinion, I do not permitting believe that it holds that (1984) provides: SDCL 15-26A-8 a child to a farm tractor renders an specified Such of the matters subdivi- liable; rather, strictly the em- (7) (6) 15-6-59(a) may sions ployer’s liability attaches once the timely presented have been to the trial violated, i.e., finds the statute has been verdict, court motion for directed re- dangerous was to the motion, quest findings, apt for or other child. offer, objection may or on be reviewed Dusha, appeal judgment As I majority from the without neces- review cited opinion, expressing sity application likely for an that children “are for new trial. inappreciative prone of risks and to be settled, “[¡Insufficiency It is well heedless,” careless and it becomes obvious may evidence it be reviewed unless has thought to me from whence this is born: timely presented been trial court prohibited being Children should be from verdict, proper motion for a directed re lackeys industry and commerce. motion, quest findings, apt or other offer, exception.” City by one the children objection, One died. Industrial сhange. Beauregard, Mitchell v. Revolution. Social Laws 430 N.W.2d 15-6-59(a); changed. Enlightenment. (S.D.1988) Punish immatu- (citing 706-07 SDCL 6—59(f); Pear 15-26A-8); rity? No. SDCL 15— Adams, son v. 279 N.W.2d simple A (S.D.1979); City Schoenrock v. Sisse breath, lightly That draws its ton, 419, 425-26, 78 S.D. 103 N.W.2d limb, every And feels its life (1960) (defendants precluded rais What should it know of death?

ing question of excessiveness of the (1770-1850), William Wordsworth appeal they bring verdict on where failed to England Are Sev- Poet laureate of [We particulars to the trial court’s attention the en] in which the evidence was claimed to be Strain, what of him? And And of Burns, insufficient); Lang v. 77 S.D. age? they not be children of his Should 632-33, (1959); Gednal 97 N.W.2d enlightment protected by the of an ad- Co., Rapids Quarry ski v. Dell 70 S.D. society? vanced 20 N.W.2d 226 in his Nowhere brief does Christians MILLER, (concurring spe- Chief Justice state he made motion to the trial court cially). jury’s damage to overturn the award be- generally agree majority I with the hold- supported by cause it was not sufficient specially II concern- ing, but write on Issue аny The evidence. record does not reflect ing contributory negligence defense. the or “motion for directed verdict ... other states, motion, offer, a child is apt objection” majority or that As the whether would dangerous occupation is a preserve right appeal employed to on this in a Christians’ find, preserve question jury. they the If so issue. We hold Christians did not for is liability these matters on the record so as under the child labor statute to enable Thus, case, legislature in the fact safe- that did not intend to remove absolute. under the F.L.S.A. to Tyler ty-trained youth employees was certified farm from the operate the tractor was admissible on the protection. child labor statute’s In the fi- occupation the was dan- issue of whether analysis, eertainly legis- nal it is within the was so admit- gerous. And such evidence to lature’s realm exclude from the But, totally exclude ted hеre. to such provisions labor statute’s children who are protections from the trained individuals pursu- equipment certified to farm protection leg- is the child labor statute’s However, ant the we to to were islative function. It must be remembered exception draft another the statute into designed is to that the child labor statute fiat, leg- judicial invading the we be protect youth from their own careless acts. prerogative. islature's contributory subject To these children to a would, my opinion, defense SABERS, (dissenting). Justice purpose. defeat the statute’s effect, majority opinion imposes In compelled to Additionally, I feel state liability hiring strict a farmer for on disagree respectfully that I with Justice minor, consent, parents’ with his to do farm position 32-12-12 and Sabers’ that SDCL holding, majority opinion work. In so majority 32-12-22.1 conflict with the hold- states: legally oper- ing. The fact that could plaintiff only The need show a violation machinery highways ate certain farm on statute, to the which must resolved be license, parents’ or without his instance, injury first supervision, certainly used to could Legal proximate to the child. causa- occupation danger- was not show that legisla- tion is not in issue because However, hold, ous. as Justice Sabers ture has determined causation exists. In would, seemingly that because a child could short, established, once a violation is legally machinery, operate such all chil- these construed child labor cases have employed any dren impose statutes to strict or absolute lia- (no subject are dangerous) matter how bility. negligence, contributory the defense of Applying that theo- makes no sense to me. ry, year permits an who a five old hold death action We ... that (and legal to drive it is under a tractor alleged оn based violation SDCL 32-12-22.1) guilty SDCL would not be subject to the defense of 60-12-3 is not violating the child labor statute. addi- tion, just plausible interpret it is these so, recognize doing the deceased. In we legislature’s being recogni- statutes as legislature’s goal passing the child driving tion that most farm kids are ma- protect statute to children from chinery parents, from field to field for their dangerous occupations employer. not for some where, immaturity, they of their because I am troubled that Justice Sabers’ dis- likely inappreciative are of risks authority sent offers no for the assertion prone to carelessness. training him safety removed majority opinion blindly follows the

from persons the class of the child labor “majority” position in its conclusion designed protect. statute was intended to all SDCL 60-12-3 was exempts prohibitions 60-12-3 from its em- employer/farmer liability ployment years of children over fоurteen employee age injury to a minor under the age dispense gasoline, diesel fuel and oil Thus, regard to the cause. legislature of sixteen without at service stations. reasons, following majority aware For the of how to remove certain classes of incorrectly applies persons protection opinion Restatement under the (Second) 483,1 implication, if it in that the “ef- By so chooses. clear of Torts § plaintiffs bars his 483. Defense to Violation of Statute. The § place “the Dept. feet” of SDCL 60-12-3 does not Parsons v. South Dakota Soc. of responsibility” entire and the burden of Serv., (S.D.1982) 314 N.W.2d liability upon employer/farmer. strict (quoting Ap Matter Sales Tax of Refund plications, (S.D. 298 N.W.2d opinion majority correctly The concludes 1980)). pre-empt does not that SDCL However, F.L.S.A., 60-12-3. unlike the [RJepeals by implication are not favored SDCL 60-12-3 does not define what consti- оnly and should be found where there is life, “occupation dangerous

tutes an a manifest and total repugnancy between Therefore, health, or morals.” the determi- the statutes and where both acts cannot operating nation that a tractor of over 20 through be reconciled a reasonable con- horsepower “oppressive is PTO struction. (a dangerous occupation) labor” once the completes training program Parsons, minor a is not 865; also, 314 N.W.2d at see Re pre-emptive of Dakota a South law. Such Applications, 802; 298 N.W.2d at fund does, however, determination indicate State, Dept. Cronin, Safety Public of minor, properly Tyler, a certified such as (S.D.1977). 250 N.W.2d There is persons from the class of de- removed “repugnancy no between the statutes.” protected by signed to be SDCL 60-12-3. clearly express legislative Both statutes in holding contrary mаjority’s The is also regulate protect tent to and certain classes legislative intent of SDCL 32-12-12.2 However, people. SDCL 60-12-3 does only recognizes This statute not the neces- operation not define of a tractor as a dan sity operation of the of farm tractors and gerous occupation and to do so as a matter (14-16 by machinery South Dakota minors law, improperly precludes contributory years age), but authorizes such use and negligence impliedly as a defense and re operation. clearly implies This the peals express provisions of SDCL 32- Legislature Dakota intended South never 12-12. place responsibility “to the entire ... Although permitted the trial court defendant.”3 [farmer] employ- jury to determine whether Finally, majority the trial court and the death, proximate cause of his it ment was a apply read and 60-12-3 in such a SDCL prevented receiving evidence repeal by implication strained manner as to concerning death the real cause of the language The SDCL 32-12-12. of both excluding contributory negli- on evidence unambiguous, statutes is clear and and ruling evi- gence. This foreclosed all such therefore: dence, in- including negligent, reckless or give is the function of the court to [I]t 60-12-3 was nev- tentional conduct. them effect and not to amend statute that effect or to tie the er intended have produce particular to avoid or re- jury. could have hands of the only The Court’s function then sult. ... they this case if had been properly decided meaning is to declare the of the statute with the South clearly expressed. instructed accordance negligence apply valid restricted mi- of the defendant to the holder consisting agri- operating self-propelled of the violation of a unless permit nor’s the statute is to the entire regis- subject which is not cultural machine effect of responsibility such harm as has occurred chapter tration under 32-5. upon the defendant. added). (emphasis raised Chief Justice Miller’s 3. The concerns writing appropriate be resolved provides part: 2. SDCL 32-12-12 pattern jury instruction issued, permit may restricted minor’s A "age, primary focus is on the minor because upon application payment proper and of the capacity” maturity, experience, a reason- and 32-12-16, . provided pas- for in fee as See, ably prudent minor in like circumstances. tests, sage of all driver’s license examination Instruction, Jury 10-05. S.D.Civil Pattern ages minor between the of fourteen Therefore, 5-year- example of a his use years.... sixteen The restrictions as to reply. operation operation old merits no under the time of legal guardiаn of a do not direction

794 10-05, training Jury by where the minor has removed

Dakota Pattern Instruction people himself from the class of intended provides: 60-12-3, protected by to be SDCL is autho- minor, ordinary care or applied As to by operate machinery, rized law to farm degree skill skill means that of care or dangers to and understands the incident his anticipated in fairly be like which would employment. from We cannot determine reasonably prudent from a circumstances this was this evidence whether death age, maturity, experi- minor of the same by negligence, caused recklessness or even ence, capacity. Therefore, ques- actions. intentional instruction, along standard com- This with jury prop- decided on tion should be instructions, permit panion er instructions. injury the real cause of to decide whether I also dissent on Issue III for the reason majority emplоyment or conduct. was negligence contributory that the or consent jury system. in the appears to have no faith may parents Tyler’s employment of the to interesting to note that respect, In this it is action constitute a defense to cause of examples majority used the two under SDCL 60-12-3. augers disconnecting cleaning involve shutting pow- machinery off the statutes, wrongful Under death the ma substantially different than the situa- jority if er— rule is that is barred highway. driving a tractor on a tion guilty contributory here— survivor himself was case, safely negligence Tyler trained in which contributed to the death was Annot., operating equipment request Contributory at the of of the decedent. farm Negligence Beneficiary Affecting Ac and with the consent of his Statute, 2 parents. He familiar with the model tion under Death or Survival was 785, (1948); also, taught A.L.R.2d 788 see Nichols 1066 tractor —his own father him Co., sufficiently Fidelity Guaranty one. was v. United Statеs & how 491, (1961); competent comprehend the risks in- 13 109 N.W.2d 131 Wis.2d Railway specific Chicago facts of this Hondl v. Great Western ‍‌‌​​​‌‌‌‌​‌‌​​​​‌‌​​‌​‌‌​​​​‌​‌‌‌​‌‌‌‌​​‌‌‌​​​​‌‍volved. Under 306, case, Tyler competent Company, 249 Minn. 82 N.W.2d 245 was trained and (1957); Rasmussen, highway 77 N.D. operate a tractor on the and was Burkstrand v. 716, (1950). Further, designed courts persons the class of 45 N.W.2d 485 not within protected by Clearly, 60-12-3. a have held where a consents be Therefore, presented. employment child’s in violation of child la jury question is applied parent may barred majority incorrectly has 483 be- bor that § recovering wrongful death of effect of the statute was not to cause the child, “place responsibility though even death the entire proximately from the harm as has occurred the defen- results See, added). Contributory the statute. Tot (emphasis dant.” and disobedience of Parker, 231, (Ky. have allowed as a ten v. 428 S.W.2d should been Blessin, 1968); v. 165 Neb. defense. Wieck (1957); Lucas E. Moore Stave N.W.2d Evidence indicated the accident was not Adm’r., 262 Georgia v. Overbee’s Co. of problems: the trac- caused mechanical (Ky.1953); Reber v. S.W.2d gradually roadway; off the tor drifted Hanson, 260 Wis. 51 N.W.2d 505 tracks; zigzags there in the tire were no 303; (1952); Besonen, 220 N.W. at Swope Tyler informed the mechanic on the morn- Co., 78 W.Va. Keystone Coal & Coke accident, ing no there were (1916); 22A Am.Jur. 89 S.E. problems the tractor. The should Annot., 2d, (1988); 2 A.L.R.2d Death regarding have been instructed the defense also, Gray, Adm’r. v. See Wheat’s contributory negligence (1949); Ky. S.W.2d age, Tyler, taking into consideration his A.L.R.2d 1336 maturity, experience capacity. There- fore, hold, facts, Here, aware of Tyler’s parents these both were we should under employment. They were aware is a defense Tyler permitting provided that obtained a certificate ther for a penalty for the violation operate powerful him to tractors without of same. This penalty always has been in F.L.S.A., violating and that his the nature duties of a Class 2 misdemeanor and operating not liability, would include Christians Interna- that strict holding as this would tional Model 1066 Even if establish. tractor. steering loose, on Christians’ tractor was A violation of this statute in the civil Mr. Strain testified that he was aware of only forum should constitute

that fact. No presented evidence was that per se. Lovell v. Oahe Elec. Co-op, 382 objected Tyler’s employ- the Strains ever (S.D.1986); Engel Stock, N.W.2d 396 v. Therefore, ment under these conditions. (1975). S.D. 225 N.W.2d 872 The de- should have been instructed that fendant/neighbor should have been allowed Tyler’s parents the consent of could consti- to submit evidence on his claim of contrib- contributory negligence tute and could bar utory negligence for the trial court to con- their under South Dakota’s sider in a determination on whether or not 60-12-3; death statute. SDCL to submit an instruction on such a defense 21-5-1; also, Tufty SDCL see v. Sioux jury. to the This court acknowledged has Co., Transit 70 S.D. N.W.2d that South Dakota is friendly neigh- and (1945). borly McBride, state. Brusseau v. (S.D.1976). N.W.2d 488 holding This will

I these contributory believe issues of friendly neighborly allow such and conduct negligence are for the fact finder or the of this defendant to blossom jury, proper based on instructions. The liability. daresay into strict I that this was proper jury denial of instructions on con- legislature. never the intention of the tributory negligence is tantamount to deni- al of a trial to Christians on the real case, present proposed the defense contrary issues the case to the South instruction set VI, Dakota Constitution. S.D.Const. art. Jury forth in the South Dakota Pattern (SDPJI 11-01). 6.§ Instructions When consid- ering negligent, whether a minor has been majority holding The effect of the is con- taking determination is made into trary to Restatement of Torts where minor, degree account the of care of a not plaintiff’s contributory negligence re- bars prudent adult, age, reasonably of like covery “unless” the effect of the statute is intelligence, experience, capacity in a place responsibility upon entire Alley Siepman, similar circumstance. employer. Our South Dakota statutes do (1974); 87 S.D. N.W.2d Finch v. attempt not responsibili- the entire Christensen, 172 N.W.2d 571 S.D. ty upon employer. the farmer or The ma- though proposed defendant Even jority opinion places responsibili- the entire case, wrong standard in this I would ty simply on the farmer because a minor is refusing hold that the trial court erred in employed. I would reverse and remand for opportunity allow the defendant the to of- II fair trial on Issues and III. comply proof fer failed to AMUNDSON, (dissenting). in the Justice the standard of care of a like minor operation of this farm tractor. I majority’s posi- cannot concur with the legislature exеmpted parents tion that a violation of 60-12-3 im- poses liability provisions By doing strict or absolute 60-12-3. on a farm- of SDCL so, er/neighbor employs employ, voluntarily who a child of a can either neighbor appeal. involuntarily, danger- as is the in case This or their child (1913 notwithstanding occupation statute has been effect since 1913 ous how detri- 8), assigned S.D.Sess.L. ch. 2 and task is and was mental such §§ adopted purpose life, regulating to the health or morals of the minor. women, girls, children, con- totally illogical It seems to hold that by fixing exempt parents allowing the hours and their mi- conditions under sent of they oper- neighbor, would labor. The statute fur- nor child to work for a type farm tractor that

ate the same parents, operated for

minor jury to fact for a consid- appropriate

be an Whether the case. particular in this

er to be con- find such a consent

jury would that it negligence to the extent

tributory recovery, question is a fact preclude ‍‌‌​​​‌‌‌‌​‌‌​​​​‌‌​​‌​‌‌​​​​‌​‌‌‌​‌‌‌‌​​‌‌‌​​​​‌‍have allowed to jury should been

that the

consider. Howard, and Jim

Jean HOWARD Appellants,

Plaintiffs and SANBORN, Defendant

Robert D. Appellee.

No. 17625. Dakota. of South

Supreme Court Briefs 1992. on Feb.

Considered April

Decided Adam, May, Thompson of M.

Charles Pierre, plaintiffs Thompson, Gerdes & appellants. Groseclose, Richardson, Roy A. Wise Aberdeen, for defen- Wyly, Kornmann & appellee. dant and MILLER, Chief Justice. damages Howard sued for

Jean and Jim struck their car was sustained when by Robert San- by a car driven the rear defended on principally Sanborn born.

Case Details

Case Name: Strain v. Christians

Court Name: South Dakota Supreme Court

Date Published: Apr 1, 1992

Citation: 483 N.W.2d 783

Docket Number: 17403

Court Abbreviation: S.D.