Fryer v. Kranz

• Decision Date: 06 September 2000
• Docket Number: No. 20842.,20842.
• Citation: 2000 SD 125,616 N.W.2d 102
• Parties: Kathy FRYER, Plaintiff and Appellee, v. Clint KRANZ, Defendant and Appellant.
• Court: South Dakota Supreme Court

616 N.W.2d 102

2000 SD 125

Kathy FRYER, Plaintiff and Appellee, v. Clint KRANZ, Defendant and Appellant.

No. 20842.

Supreme Court of South Dakota.

Argued October 19, 1999.

Reassigned May 10, 2000.

Decided September 6, 2000.

Rick Johnson, Stephanie E. Pochop of Johnson, Eklund, Nicholson, Peterson & Fox, Gregory, South Dakota, Attorneys for plaintiff and appellee.

William C. Garry, Michael A. Henderson of Cadwell, Sanford, Deibert & Garry, Sioux Falls, South Dakota, Attorneys for defendant and appellant.

MILLER, Chief Justice (on reassignment).

[¶ 1.] In this intermediate appeal, because the employee has shown there is no genuine issue of material fact as to whether employer's conduct was intentional in order to except it from workers' compensation coverage, we hold that the circuit court improperly denied the employer's motion for summary judgment.

FACTS

[¶ 2.] In 1996, Clint Kranz was remodeling a building in Watertown, South Dakota, to convert it into a casino. He employed workers, including Kathy Fryer, to help with the project. As part of the cleanup, he wanted to remove grout and other residue from the ceramic tile floors. Cleaning the tile proved difficult, so he purchased muriatic acid for the job. Muriatic acid, also called hydrochloric acid, is a strong, highly corrosive chemical. The product label warned that for proper use, the acid should be diluted, the vapors are harmful when the acid is used improperly, and the product is for exterior use only. These warnings were not readable when Fryer used the chemical because the label was covered with "cement stuff."

[¶ 3.] To show Fryer how to clean the tile, Kranz poured the undiluted muriatic acid on the floor, saying "This is how we use it." Kranz said he had used the product several times. He did not warn Fryer about any dangers, although he did say the acid is "corrosive and smells really bad," and "try not to breathe it." Fryer was told to wear protective gloves. Also, a small oscillating fan was positioned nearby to circulate the air, with more fans set up in the doorways to ventilate the building.

[¶ 4.] Over the course of three to four weeks, Fryer regularly cleaned with the acid. It produced a "green cloud" when poured on the floor. The vapor made her feel nauseated, lightheaded, and she coughed when she breathed it. She thought, nonetheless, that the fumes were no more toxic than those from products like fingernail polish remover or "white-out." Yet she "complained a lot about it." She told Kranz, "It makes me feel weird. It makes me light-headed. I hate this shit." Kranz responded, "Well, when that happens, then you need to take a break and you need to go get some air." He had her continue to use the product.

[¶ 5.] On November 12, 1996, Fryer used the muriatic acid to clean a very small room where there was no ventilation. The fumes overcame her. Lightheaded and nauseated, she could not continue. She ran across the alley to a bathroom in another building and vomited. When Kranz knocked on the door, Fryer assured him that she "was fine." She did not immediately seek medical attention, but as the day progressed, she suffered chest pains, breathing problems, and her skin "hurt real bad." Later in the day, she was admitted to the hospital where she remained for four days. She continues to suffer health problems.

[¶ 6.] Fryer brought a personal injury action against Kranz in circuit court, alleging:

[Kranz] had experience with muriatic acid and was aware of its dangerous propensities, but nevertheless, intentionally directed [Fryer] to utilize the same in the small, unventilated area even after she had advised him that use of the product in larger ventilated areas had caused her dizziness, nausea and headaches.

* * *

[Kranz] intentionally caused the plaintiff to be exposed to the dangerous situation knowing that it was probable that serious injury would result.¹

She sought damages for medical expenses, emotional distress, pain and suffering, and reduced earning capacity. Kranz moved for summary judgment. The court denied the motion, concluding that there were material issues of fact on whether Fryer committed an intentional tort. We granted intermediate appeal.

STANDARD OF REVIEW

[¶ 7.] Our review of a trial court's granting of summary judgment is well settled. See Wilson v. Great N. Ry. Co., 83 S.D. 207, 157 N.W.2d 19 (1968)

; Millard v. City of Sioux Falls, 1999 SD 18, ¶ 8, 589 N.W.2d 217, 218; Walther v. KPKA Meadowlands Ltd. Partnership, 1998 SD 78, ¶ 14, 581 N.W.2d 527, 531; Specialty Mills, Inc., v. Citizens State Bank, 1997 SD 7, ¶ 7, 558 N.W.2d 617, 620.

In reviewing a grant or a denial of summary judgment under SDCL 15-6-56(c), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of summary judgment is proper.

Kaiser v. North River Ins. Co., 2000 SD 15, ¶ 6, 605 N.W.2d 193, 195; Schipke v. Grad, 1997 SD 38, ¶ 5, 562 N.W.2d 109, 110; Walz v. Fireman's Fund Ins. Co., 1996 SD 135, ¶ 6, 556 N.W.2d 68, 69; Harn v. Continental Lumber Co., 506 N.W.2d 91, 94 (S.D.1993).

DECISION

[¶ 8.] Workers' compensation covers employment-related accidental injury of every nature. No matter what form employer conduct takes, be it careless, grossly negligent, reckless, or wanton, if it is not a "conscious and deliberate intent directed to the purpose of inflicting an injury," workers' compensation remains the exclusive remedy. 6 Larson's Workers' Compensation Law (MB) § 103.03 at 103-6 (November 1999). Even when an employer's acts entail "knowingly permitting a hazardous work condition to exist, knowingly ordering a claimant to perform an extremely dangerous job, [or] wilfully failing to furnish a safe place to work," still they come within the ambit of workers' compensation. Id. at 103-6 (November 1999) & 103-7 (May 2000).

[¶ 9.] 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." Larson, supra, § 103.05[6] at 103-44 (May 2000). Exclusiveness imparts efficiency to the workers' compensation system. "Every presumption is on the side of avoiding superimposing the complexities and uncertainties of tort litigation on the compensation process." Id.

[¶ 10.] When an employer intends to commit injury, as opposed to negligently or recklessly committing it, then the rationale for embracing workers' compensation disappears. Accordingly, when an employer intentionally causes a work-related injury, workers' compensation law allows an exception to the exclusive remedies for employee work-related injuries:

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.

[¶ 11.] Only injuries "intentionally inflicted by the employer" take the matter outside the exclusivity of workers' compensation coverage. Harn v. Continental Lumber Co., 506 N.W.2d 91, 95 (S.D.1993). "The worker must also allege facts that plausibly demonstrate an actual intent by the employer to injure or a substantial certainty that injury will be the inevitable outcome of employer's conduct." Jensen v. Sport Bowl, Inc., 469 N.W.2d 370, 372 (S.D.1991) (citations omitted). Even when an "injury is a probable ... result, [workers'] compensation is still the exclusive remedy." Id. (emphasis in original). The intentional tort exception is narrowly construed.²Benson v. Goble, 1999 SD 38, ¶ 19, 593 N.W.2d 402, 406 (citations omitted).

[¶ 12.] More than knowledge or appreciation of risk is required to establish intentional conduct. "The known danger must cease to become only a foreseeable risk which an ordinary, reasonable, prudent person would avoid (ordinary negligence) and become a substantial certainty." Harn, 506 N.W.2d at 95 (citing Brazones v. Prothe, 489 N.W.2d 900, 906 (S.D. 1992); Jensen, 469 N.W.2d at 372; VerBouwens v. Hamm Wood Prod., 334 N.W.2d 874, 876 (S.D.1983)).

[¶ 13.] The statement of our law regarding the substantial certainty standard was summarized in Harn:

The substantial certainty standard requires that the employer had actual knowledge of the dangerous condition and that the employer still required the employee to perform. Substantial certainty of injury to the employee should be equated with virtual certainty to be considered an intentional tort. . . . If an employee worked under such conditions where the employer actually knew of the danger and that injury was substantially certain (virtually certain) to occur, and such injury did occur, the employer should not escape civil liability for placing the employee in such a dangerous position. That is the type of conduct the intentional tort exception deters.

506 N.W.2d at 100.

[¶ 14.] Fryer asserts that Kranz knew she would be injured. When she complained to him about the fumes making her feel lightheaded, he replied: "Well, when that happens, then you need to take a break and you need to go get some air."...