*1 SATTERLEE, Plaintiff Daniel L. Appellant, and Matt

David James JOHNSON

Johnson, Defendants and

Appellees.

No. 18633.

Supreme Dakota. Court Sept. 1994.

Considered Briefs

Decided Jan. Christensen, Deadwood,

Steven M. McCullen, Butler, Terry Bangs, L. Hofer of Simmons, Foye Rapid City, plaintiff appellant. Jackson, Larry Lynn, M. Von Wald of Lebrun, City, Rapid & for defendants Shultz appellees. MILLER, Justice. Chief (Satterlee) Appellant Daniel L. Satterlee grant- appeals the decision of the trial court ing summary judgment Appellees David (James) James Johnson Johnson (Matt). collectively (Appellees will be re- Johnsons). ferred to as Satterlee contends that the trial court erred affidavit of his witness and that barring issues of material fact affirm. We *2 FACTS corral. Matt his wife then released the charged The calf from their hold. calf to- in owns ranches western James several Satterlee. wife to ward Matt’s shouted Sat- Dakota, Harding in ranch out,” terlee to “Look and Satterlee turned to County Place. known as the Dahlen James’ the To running see calf toward him. avoid son, Matt, lives the Dahlen Place and on hit, jumped and twisted out manages the for his father. ranch path Although the of the calf. began working ranch in for James as a hand calf, severely injured was not hit the primarily on October of 1991. He worked way. jumping his back in out of the supervision under the the Dahlen Place Matt. 7, 1993, April On filed suit 24, 1992, injured July Johnsons, On against alleging they flying Matt assisting back while and Matt’s gent aspects in the oper- various starting airplane. in an The fol- instructor any negligence. ation. Johnsons denied lowing up sheep day, Satterlee rounded on parties engaged The in substantial discov- under Matt’s Mon- horseback direction. On ery. Satterlee submitted to inter- answers 27,1992, day, July visited his chiro- rogatories posed by complied Johnsons told him he for practor who should work request production. with for De- Johnsons’ later, days Two chiro- while. Satterlee’s Satterlee, James, positions were taken of light duty to practor authorized him do work. wife, Matt, girl Matt’s and the who assisted day. following the Satterlee returned to woi’k branding operation. the with 31, 1992, Friday, July one On week 1993, 7, filed a On December Johnsons told Satterlee’s back summary judgment as all of “working” con- assist him with seven calves parties claims. The Satterlee’s This fined in a corral on the ranch. on the motion and Satterlee and an briefs vaccinating, branding, dehorning,- and cas- on affida witness his behalf submitted trating the animals. judge, the The vits resistance to motion. typically person had one on horse- genuine concluding there were no issues of calf, rope back the while two threw others fact, granted summary judgment ground held there. the calf to it against all claims them. Satter- Johnsons on down, another While the was held appeals.* lee person persons the brand- vaccination, ing, dehorning, and castration of holding the calf. The two individuals ISSUE

would then release TRIAL THE COURT WHETHER particular The on crew this consisted MO- ERRED IN GRANTING JOHNSONS’ wife, Matt, Satterlee, Matt’s four- TION FOR SUMMARY JUDGMENT. teen-year-old girl. neighbor girl’s role Summary granted judgment shall be rope was to the calves. Matt and his wife depositions, pleadings, "... answers to throwing responsible for file, back, interrogatories, on to and admissions of the the calves. Because affidavits, any, show that branding, gether assigned was dehorn- as vaccinating castrating After there is no issue ing, duties. moving party first fact and that the is entitled

performing this work n law.” dehorning judgment as a matter of SDCL 15-6- lee to return the 56(c). determinations, making In these propane irons to the heater located * 11, 1994, supporting authority January judge to cite In a dated also Satterlee fails letter erred this his regard. that the trial court assertion disregarded the stated he authority supporting failure to cite "The expert, opinion because the affidavit “states an 15-26A-60(6) of SDCL and the is a violation underlying evidentiary but fails to set forth thereby Corbly v. issue is deemed waived.” opinion." 347, (S.D.1983) (c Matheson, iti erred claims the trial court ng N.W.2d 254 Graham expert. affidavit of Satterlee’s Shull, State 212-13, trial court must review the facts 83 S.D. at A nonmoving party. to the most favorable review of the record shows Inc., Express, case, Merritt v. 437 N.W.2d judgment Edson in this Wilson v. Great because Satterlee himself failed to set forth Ry. Northern 83 S.D. 157 N.W.2d any upon set of facts which his *3 (1968)). 19 claims could rest. our task is to determine During deposition testimony, his Satterlee only whether a issue of material fact stated that there is a certain amount of risk correctly and whether the law was exists physical injury working when around cat- Co., applied. tle, Harn v. Continental Lumber possibility kicked (citing Lamp 506 N.W.2d 94 run or over. Satterlee testified that he had Garretson, First Nat. Bank 496 N.W.2d participated branding operations in two other Dewey County Waddell v. prior injury, using for the Johnsons Bank, We are essentially branding the same method used findings not bound the factual of the trial day injury. on the of his He further testified independent court and must conduct an re present day that the individuals of his Eckrick, Koeniguer view the record. injury among people working 422 N.W.2d Affirmance these occasions. is there exists basis which supervised Satterlee testified that Matt Harn, ruling. the trial court’s wou[d operations these other and that he had told (citing Lamp, 506 N.W.2d at 94 everyone jobs their and how the work was to 583; Waddell, at performed. be asked alleged the Johnsons had anything wrong way found (1) gently reasonably provide failed to: safe previous branding operations, handled the (2) workplace; properly supervise the brand- responded: (3) ing operation; provide adequate instruc- “No, mean, way they always I that’s the do tions under the circumstances of this brand- Everybody got style it. has their own (4) ing operation; step allow mean, doing everybody own means of I branding releasing clear of the area before mean, way they does it different. I do (5) calf; the branded warn that the years. it is the it’s been done for I going branded calf was to be released imme- mean, it was done different than we do it diately stepped before Satterlee clear of the back home that but doesn’t mean it’s the (6) area; branding use or instruct in the use right way wrong way.” or the branding of reasonable in the alternatives Satterlee stated that on these other occa- operation under the circumstances then ex- sions, (7) they after isting; provide a suitable number of com- get up and allowed to and run petent employees (8) manner; or walk reasonably the corral. Satterlee ac- safe knowledged agitated that some branding oper- assist and aid calves are (9) ation; using refrain from worked. He stated that some “mad,” branding operation given physical calves are calm while others are “get up just limitations. beller and run.” He further anticipate stated that one has to generally is might angry be when it has been branded feasible in cases because the stan get away and that the calves want to from applied dard of the reasonable man must be people holding them after have been conflicting testimony.... only It when is branded. that is such reasonable men can branding opera- Satterlee testified that the draw but one conclusion from facts and infer “basically that tion on the ences become matter of law and date of his was,” rarely.” going always Lamp, this occurs to be the same as it except Trammell v. Prairie States Ins. would not be (S.D.1991); Wilson, injury. calves because of his back He any gen- to create affidavit fails agreeable to of work was this method of material fact. The uine issue him. facts, undisputed such as reiterates the branding op- prior experience From his damages the method used of his extent erations, when the knew that setting forth branding the without completed, the individuals “working” was specific acts or omissions it. He stated holding the calf would release expose John- employees which would their working the calf on the he finished that when liability. potential negligence sons that Matt and his he knew of his that I could add that “I did not feel lee does release the calf. Satter- wife were I would or would not tell Matt Johnson what previous that on occasions lee indicated my job.” I to lose Howev- do. did not want calves were stayed in the corral when the er, suggest simply that Sat- these statements *4 intended to remain and that he work; declining was reticent about terlee injured. He he was in the corral identify any they do not behavior would have not think he stated that he did reinforce his Johnsons that would if the any problem stepping out claims. him, he was ran at because believed moving avoid the calf. Satter- capable of Affirmed. have that he did not lee further testified that, turning jumping, he by simply idea WUEST, AMUNDSON injure as he did. his back JJ., KONENKAMP, concur. that Matt had told ev- indicated J., SABERS, dissents. everyone who eryone to do and that what branding operation SABERS, (dissenting). Justice jobs and injury knew their the date of his summary are not entitled to Defendants He believed Matt done them before. had there judgment unless can show everyone the instructions given had facts. genuine issues of material are no jobs. needed to do their Thiewes, Dept. Revenue able to people involved Taking required of them. perform the work that was nonmoving most favorable to able to he was to be He also believed Satterlee, are issues party, there branding operation without participate in the warn, sufficiency fact as to failure to any problems. permit warning, failure to at his testimony given interior completely himself from the remove support for deposition provides significant the calf and before release of of the corral Meanwhile, is a Johnsons’ defense. safety equipment. to use available failure testimony supporting conspicuous absence of remedy is an extreme claims. disposing factual issues appropriate for v. Rei for trial.” Reeves or as a substitute summary moved for When Johnsons (S.D.1994) (Sabers, man, 78, 86 contained judgment based on statements dissenting J., part concurring in result deposition, Satterlee omitted). Therefore, (citation defen part) in resistance thereto. Sat- his own affidavit are not entitled dants terlee, opposing a nonmoving party as the Thiewes, N.W.2d at judgment, pres summary “must the exis specific which demonstrate ent trial; issues for genuine,

tence pre allegations are not sufficient

mere judgment.” Mackintosh v.

clude (cit Carter, (S.D. Koch,

ing Laber v.

1986)).