Clausen v. Aberdeen Grain Inspection, Inc.

• Decision Date: 15 September 1998
• Docket Number: 20371,20386,Nos. 20370,s. 20370
• Citation: 1999 SD 66,594 N.W.2d 718
• Parties: Marlys CLAUSEN, as Special Administratrix of the Estate of David Clausen, her Deceased Husband, Plaintiff and Appellant, v. ABERDEEN GRAIN INSPECTION, INC., and South Dakota Wheatgrowers Assoc., a South Dakota Corporation, Defendants and Appellees. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 718

594 N.W.2d 718

1999 SD 66

Marlys CLAUSEN, as Special Administratrix of the Estate of David Clausen, her Deceased Husband, Plaintiff and Appellant, v. ABERDEEN GRAIN INSPECTION, INC., and South Dakota Wheatgrowers Assoc., a South Dakota Corporation Defendants and Appellees.

Nos. 20370, 20371, 20386.

Supreme Court of South Dakota.

Considered on Briefs Sept. 15, 1998.

Reassigned March 16, 1999.

Decided May 26, 1999.

Jack H. Hieb of Schoenbeck Law Office, Webster, South Dakota and Kenneth E. Barker of Quinn, Eiesland, Day & Barker, Belle Fourche, South Dakota, Attorneys for plaintiff and appellant.

Arlo D. Sommervold of Woods, Fuller, Shultz & Smith, P.C., Sioux Falls, South Dakota, Attorneys for defendant and appellee Aberdeen Grain.

John H. Billion and Lon J. Kouri of May, Johnson, Doyle & Becker, P.C., Sioux Falls, South Dakota, Attorneys for defendant and appellee South Dakota Wheatgrowers Association.

GILBERTSON, Justice (on reassignment).

¶1 David Clausen (Clausen) died as a result of injuries he sustained after falling from the top of a railcar from which he was sampling grain. His wife, Marlys Clausen (Mrs. Clausen), brought a negligence action against Aberdeen Grain Inspection, Inc. (AGI), the grain inspection company that contracted with Clausen and South Dakota Wheatgrowers Association (Wheatgrowers), the owner of the grain elevator where the railcars were located. The trial court granted summary judgment to AGI and Wheatgrowers and denied their motion for taxation of costs. Mrs. Clausen appeals the trial court's grant of summary judgment to AGI and Wheatgrowers. AGI and Wheatgrowers appeal the trial court's denial of their joint motion for taxation of costs. We affirm summary judgment as to Wheatgrowers' liability, reverse as to AGI and remand to the trial court to determine what, if any, costs and disbursements Wheatgrowers should be allowed to recover.

FACTS

¶2 AGI is a South Dakota corporation providing grain inspection services for businesses engaged in the sale and distribution of grain. On January 29, 1992, AGI hired Clausen as an independent contractor. ¹ Clausen's job consisted of probing railcars to obtain grain samples that would later be inspected at the AGI laboratory.

¶3 In order for Clausen to sample grain, he had to climb to the top of a railcar with a ten foot probe, gutter and sample bags, and position himself to insert the probe into each of the railcar compartments at a ten degree angle. He would empty the probe contents into the gutter and visually inspect the grain before emptying it into a sample bag and moving on to probe another area of the car. AGI supplied Clausen the necessary equipment to probe the railcars. Clausen did receive training for this job with the knowledge and consent of AGI from another independent contractor who also worked for AGI. However, AGI did not directly provide Clausen with any other safety equipment or safety training.

¶4 Clausen was probing for grain samples on the morning of December 6, 1994 at the Bristol elevator owned by Wheatgrowers. No representative of Wheatgrowers was present to supervise Clausen's activities. It did not provide fall-prevention devices to Clausen or other individuals who worked on top of the railcars. While Clausen was sampling grain from atop the first railcar of the day, he apparently fell headfirst off the car and landed on the concrete approximately fifteen feet below. No one witnessed the accident. Clausen died as a result of the injuries he sustained from the fall.

¶5 Mrs. Clausen initiated a wrongful death action against AGI and Wheatgrowers on behalf of herself and as special administratrix of Clausen's estate. She claimed AGI was negligent by not providing Clausen with proper safety equipment or training to prevent his fall from the railcar. Mrs. Clausen alleged Wheatgrowers, as the landowner, was negligent in not exercising reasonable care for Clausen's safety because of its failure to provide safety training or fall-protection equipment for persons working on top of the railcars.

¶6 AGI and Wheatgrowers filed motions for summary judgment, claiming they owed no duty to Clausen. The trial court ruled AGI owed Clausen no duty of care because Clausen's employment as an independent contractor was not inherently dangerous and AGI did not exert any negligent control over Clausen's activities. The trial court also ruled that Wheatgrowers owed no duty of care to Clausen under the law of premise liability because Clausen should have been aware of the risk inherent in working on top of railcars. Finding neither defendant owed a duty of care to Clausen, the trial court granted summary judgment in favor of Wheatgrowers and AGI. AGI and Wheatgrowers also filed motions for taxation of costs. The trial court denied these motions for failure to cite statutory authority and failure to itemize costs.

¶7 Mrs. Clausen raises the following issues on appeal:

1. Whether the trial court erred in holding AGI owed no duty to provide safety training or fall prevention equipment to Clausen.

2. Whether the trial court erred in holding Wheatgrowers owed no duty to Clausen as a business invitee to provide him with safety training or fall prevention equipment.

¶8 AGI and Wheatgrowers raise the following issue by notice of review:

3. Whether the trial court should have granted AGI's and Wheatgrowers' motions for taxation of costs.

STANDARD OF REVIEW

¶9 The standard under which we review summary judgment is well established:

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 an 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).

Chord v. Reynolds, 1999 SD 1, p 10, 587 N.W.2d 729, 731. Whether a duty exists is a question of law which we review de novo. Tipton v. Town of Tabor, 538 N.W.2d 783, 785 (S.D.1995). "If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper." Mack v. Kranz Farms, Inc., 1996 SD 63, p 8, 548 N.W.2d 812, 814.

ANALYSIS AND DECISION

¶10 1. Whether the trial court erred in holding AGI owed no duty to provide safety training or fall prevention equipment to Clausen.

¶11 Before liability may be imposed on the theory of negligence there must be a duty on the part of the defendant to protect a plaintiff from injury. Blumhardt v. Hartung, 283 N.W.2d 229, 231-32 (S.D.1979). Ordinarily, the employer of an independent contractor may not be held liable for injuries that have been personally sustained in the performance of the contract by the contractor. See 41 Am.Jur.2d Independent Contractors, § 29 (1995). Furthermore, one who hires an independent contractor generally does not have a duty to insure the contractor performs his work in a safe manner. Diaz v. Elliott-Williams Co., Inc., 974 S.W.2d 915, 918 (Tex.App.-El Paso 1998). If the hiring party retains control over the contractor's work and fails to exercise control in a reasonable fashion, it may be liable for damages that result. Id.

¶12 The trial court held AGI owed Clausen no duty, citing Haufle v. Svoboda, 416 N.W.2d 879 (S.D.1987). Haufle sets forth the general rule that an employer is not liable for physical harm to another resulting from acts or omissions of an independent contractor or an independent contractor's servants. Id. at 880. In the present case the issue before the Court is the contractor's liability for injuries to the subcontractor himself rather than liability for injuries to another due to the negligent act of the subcontractor. Thus Haufle is not controlling, but it does provide a starting point from which we base our decision.

¶13 The Court in Haufle recognized the general rule was subject to a number of well-recognized exceptions that had substantially diluted the rule. ² The exception to nonliability, which is relevant to this appeal, is where the employer was directly negligent in "exercising retained control over the work...." Haufle, 416 N.W.2d at 880. We find this exception to be dispositive and as a question of fact exists as to it, we reverse and remand for trial concerning AGI.

¶14 AGI points to the contract language as evidence it had no control over Clausen's work. ³ As we find evidence exists in the record of AGI's control over Clausen, there is a genuine issue of material fact that supports Clausen's claim for damages pursuant to this exception.

¶15 The general rule that an employer has no liability for the acts of an independent contractor stems from the concept that "the employer has no power of control over the manner in which the work is to be done by the contractor, it is ... regarded as the contractor's own enterprise and he, rather than the employer, is the proper party to be charged with the responsibility of preventing the risks, and bearing them...." Restatement (Second) of Torts § 409 cmt. b (1965). We have said an independent contractor carries "on an independent business and contract work according to their own methods, subject to employer's control only as to results." Baer v. Armour & Company, 63 S.D. 299, 302-303, 258 N.W. 135, 137 (1934).

¶16 Our review of the record reveals evidence that would create a genuine issue of material fact as to whether AGI retained control over Clausen's work. For example, Joseph...