Althoff v. Pro-Tec Roofing, Inc.

• Decision Date: 10 August 2022
• Docket Number: 29639,29686
• Citation: 2022 S.D. 49
• Parties: LYNN ALTHOFF, as Personal Representative of the Estate of Justin Althoff, Plaintiff and Appellee, v. PRO-TEC ROOFING, INC., Defendant and Appellant.
• Court: South Dakota Supreme Court

2022 S.D. 49

LYNN ALTHOFF, as Personal Representative of the Estate of Justin Althoff, Plaintiff and Appellee,
v.
PRO-TEC ROOFING, INC., Defendant and Appellant.

Nos. 29639, 29686

Supreme Court of South Dakota

August 10, 2022

ARGUED FEBRUARY 15, 2022

APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT CODINGTON COUNTY, SOUTH DAKOTA, THE HONORABLE ROBERT L. SPEARS Judge

RICHARD L. TRAVIS PAUL W. COPPOCK of May & Johnson, P.C. Sioux Falls, South Dakota Attorneys for defendant and appellant.

LEE C. "KIT" MCCAHREN of Olinger, Lovald, McCahren & Van Camp, P.C. Pierre, South Dakota Attorneys for plaintiff and appellee.

OPINION

1

DEVANEY, Justice

[¶1.] While working on the roof of a building for a subcontractor, an employee fell off the roof and tragically died as a result. His estate instituted a tort suit against the employer, and the employer asserted that the estate's remedies were limited to those available under the South Dakota Workers' Compensation Act. On cross-motions for summary judgment, the circuit court denied both parties' motions, concluding that material issues of fact were in dispute on the question whether it was substantially certain that an injury would result from the employer's failure to train its employees and provide adequate safety equipment. Because we conclude, on the undisputed facts presented, that the employer was entitled to summary judgment, we affirm in part and reverse in part.

Factual and Procedural Background

[¶2.] Pro-Tec Roofing, Inc. entered into a subcontract with a general contractor for the construction of a community center in Watertown, South Dakota. Pro-Tec hired Justin Althoff to work on the community center project. After he was hired, Pro-Tec provided him a copy of the company's safety and health manual but did not provide him any formal safety training. While Althoff was working on the roof of the community center on April 21, 2016, he got too close to the edge of the building and fell off the roof. Althoff died as result of the fall, and Pro-Tec paid workers' compensation benefits accordingly. Althoff's estate (Estate) later brought a tort suit against Pro-Tec, alleging that Althoff's death arose from Pro-Tec's intentional acts of not following OSHA regulations and its own safety rules. The Estate did not identify a particular intentional tort; instead, it asserted that Pro-Tec

2

employees' "intentional actions and willful misconduct were the proximate cause of Justin Althoff's injuries and death."

[¶3.] Relevant to the issues here, it is undisputed that Pro-Tec did not provide Althoff or the other employees a safety harness to wear while working on the roof. Instead, Pro-Tec used a warning line system. However, Pro-Tec's placement of the warning line did not meet the Occupational Safety and Health Administration's (OSHA) standards. Further, Pro-Tec did not have a designated person monitoring employees working near or outside the partially erected warning line as required by OSHA regulations. Pro-Tec claimed that it operated under the belief that it was every employee's responsibility to watch out for each other. In particular to the circumstances here, Pro-Tec claimed that just prior to Althoff's fall, a co-worker warned him that he was too close to the edge.

[¶4.] After the fall, OSHA conducted an investigation and issued citations to Pro-Tec and imposed monetary penalties for, among other things, not adequately training employees related to fall hazards and not using a proper fall prevention system. One citation, related to Pro-Tec's failure to properly implement its warning line system and failure to use a dedicated safety monitor, was deemed to be a "willful" violation.

[¶5.] After the parties conducted discovery, the Estate amended its complaint and identified that OSHA had issued Pro-Tec three citations prior to Althoff's April 2016 fall. The first citation, issued on September 10, 2009, occurred after OSHA conducted an unannounced job site inspection. OSHA determined that Pro-Tec did not have "[e]ach platform on all working levels of scaffolds" "fully

3

planked or decked between the front uprights and guardrail supports." The second and third citations, deemed to be "serious," were issued on January 11, 2011 and July 2, 2012. These also occurred after unannounced inspections by OSHA wherein OSHA discovered employees working on low-slope roofs without "guardrail systems, safety net systems, personal fall arrest systems, or a combination of warning line system and personal fall arrest system, or warning line system and safety monitoring system[.]" In response to the January 2011 citation, Pro-Tec agreed to implement a safety and health program that complies with OSHA's safety and health management guidelines. Pro-Tec also adopted a fall prevention program, outlining fall prevention systems and training programs to be provided to employees. In the July 2012 citation, OSHA specifically noted that Pro-Tec had been previously cited for the same violation in January 2011.

[¶6.] In its amended complaint, the Estate also quoted language from Pro-Tec's safety and health manual that required employees to "follow OSHA, State, Federal, and Pro-Tec Roofing, Inc. standards at all times" and "[u]se safety harness[es] when close to the hazard of falling."^[1] The Estate noted that pursuant to the manual, the company's officers and foremen were responsible for making sure that employees follow Pro-Tec's policies and that Pro-Tec meets all OSHA and local safety standards. The Estate further noted that within the training section of the

4

manual, Pro-Tec had adopted a fall protection program that identified and required compliance with the relevant OSHA guidelines for preventing falls.

[¶7.] In regard to Pro-Tec's role in Althoff's fall, the Estate quoted testimony from interviews by an OSHA representative conducted with Pro-Tec's employees during OSHA's investigation after the fall. The Estate then relied on this testimony as support for the claim that Pro-Tec "was clearly and obviously aware that fall protection was required by [the company's] own rules and OSHA statutes and that safety harnesses were not used or present[.]"^[2] According to the Estate, Pro-Tec's failure to provide the required safety measures meant that "serious injury or death was absolutely certain."

[¶8.] Pro-Tec filed a motion for summary judgment, asserting that under SDCL 62-3-2, workers' compensation is the Estate's exclusive remedy because Althoff's death occurred in the course of his employment. In response, the Estate argued that because Pro-Tec deliberately failed to provide Althoff with a safety harness as required by its internal safety rules and policies, the exception to SDCL 62-3-2 for intentional torts applied. The Estate filed a cross-motion for summary judgment, claiming that the undisputed facts establish that Pro-Tec's "intentional acts of willfully choosing not to provide an operable fall protection system" after its OSHA citations and with full knowledge of its violation of the company's safety rules requirements "removes this case from the purview of SDCL 62-3-2."

5

[¶9.] After a hearing, the circuit court issued a memorandum decision. The court recognized that workers' compensation would be the Estate's only remedy unless the injury arose from an employer's intentional tort and ultimately concluded that neither the Estate nor Pro-Tec were entitled to summary judgment. In denying the Estate summary judgment, the court determined that the Estate could not, simply from the OSHA violations and Pro-Tec's violation of its own safety rules, prove that it was substantially certain that Althoff would fall off the roof that day. However, in denying Pro-Tec summary judgment, the court determined that the Estate identified material issues of fact in dispute on the question whether "Pro-Tec's actions (or omissions) at its construction job sites were substantially certain to cause an injury or death of an employee within the intentional tort exception" because of the evidence that Pro-Tec "willfully failed to furnish a safe workplace for its employees" who were "performing an extremely dangerous job." The court found it "difficult to believe that the South Dakota Legislature intended to provide armor to an employer with the practical effect of complete tort immunity, when that very employer intentionally and repeatedly failed to adequately train its employees and provide appropriate safety equipment in dangerous construction activities such as roofing."

[¶10.] This Court granted Pro-Tec's petition for permission to take a discretionary appeal challenging the circuit court's intermediate order denying Pro-Tec summary judgment. See SDCL 15-26A-13; SDCL 15-26A-3(6). The Estate, by notice of review, asserts that the circuit court erred in denying its motion for summary judgment.

6

Standard of Review

[¶11.] As stated in Syrstad v. Syrstad,

"We review de novo a circuit court's entry of summary judgment." Tammen v. Tronvold, 2021 S.D. 56, ¶ 17, 965 N.W.2d 161, 168. Summary judgment is proper "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 a judgment as a matter of law." SDCL 15-6-56(c). We view the evidence and all reasonable inferences in a light most favorable to the nonmoving party and resolve reasonable doubts against the moving party. Strassburg v. Citizens State Bank, 1998 S.D. 72, ¶ 5, 581 N.W.2d 510, 513. Our task on appeal is to "determine whether the moving party has demonstrated the absence of any genuine issue of material fact and entitlement to judgment on the merits as a matter of law." Bernie v. Cath. Diocese of Sioux Falls, 2012 S.D. 63, ¶ 7, 821 N.W.2d 232, 237 (citation omitted).

2021 S.D. 67, ¶ 13,...