Harn v. Continental Lumber Co.

Citation506 N.W.2d 91
Decision Date20 April 1993
Docket NumberNo. 18030,18030
PartiesDaniel W. HARN, Plaintiff and Appellee, v. CONTINENTAL LUMBER COMPANY, Petitioner and Appellant. . Considered on Briefs on
CourtSupreme Court of South Dakota

Jeffrey P. Maks, Finch, Bettman, Maks, Rapid City, for plaintiff and appellee.

J.G. Shultz, Woods, Fuller, Shultz & Smith, Sioux Falls, for petitioner and appellant.

MILLER, Circuit Judge.

This Court granted Employer Continental Lumber's petition for allowance of an appeal from an intermediate order denying its motion for summary judgment against employee Daniel Harn (Harn). We reverse.


Harn was injured on April 22, 1989, while working as a general laborer for Continental Lumber. Harn's job at the time of his injury was to feed rough lumber onto a conveyor which then fed the wood into an edger.

Harn was to feed lumber into the "north edger" in the old saw mill. He was to flip and manipulate boards into the edger so the round side was up. A chain or conveyor apparatus transports rough pieces of lumber through an in-feed opening which is adjusted to saw and edge the boards to specific widths and sizes. The edger is operated with an electric control box or panel located one floor above the edger. Harn was located in front of the in-feed opening while foreman Danny Torres was operating the edger control box.

The edger contained an anti-kickback safety device or a set of safety fingers. As the saws within the edger rotated in an opposite direction to that of the conveyor feeding the lumber, the safety device prevented lumber from being kicked back through the in-feed opening. The anti-kickback device was operated by a lever on the side of the machine. When a board became stuck on the saw, the employee would walk to the side of the edger and operate a hydraulic switch to disengage the safety device or lift the safety fingers. As the fingers lifted, the control box operator would reverse the lumber back through the in-feed opening to repeat feeding the lumber into the edger. Typically, if there was an employee feeding lumber into the edger, it was his responsibility to disengage the anti-kickback device or lift the safety fingers.

In April of 1989, Continental Lumber was in the process of phasing in a new saw mill. Due to mechanical difficulties with the new mill, work would be reverted to the old saw mill. As a result, the flow of lumber in the old saw mill fluctuated greatly. The edging process in the old saw mill transformed from a two-person job (one running the control box and one flipping boards) to that of one person running the control box only. The control box operator could dislodge jammed boards by reversing the flow. This could not be done with the anti-kickback device engaged. The anti-kickback device would be disengaged by propping up or jimmying the lever with a piece of wood. On the date of his injury, Harn had seen the edger operator dislodge jammed boards by reversing the flow, which Harn knew could not be accomplished with the anti-kickback device engaged. Apparently, disengaging the safety device kept lumber production up during the equipment switch in the mill.

On April 20, 1989, the new mill again experienced mechanical difficulties and edging was transferred to the old mill. Harn fed boards into the edger and his foreman operated the control box. While Harn was flipping lumber, one of the boards became stuck within the edger. The board caught on one of the saws and was thrown back through the in-feed opening, striking Harn on the cheek and forehead. He suffered a loss of nerve function to the right side of his face and disfigurement. It was later discovered that the anti-kickback device was disengaged at the time of Harn's injury.

On February 14, 1990, Harn filed a civil action, which was later amended, premised on the intentional tort exception to workmen's compensation. Harn alleges that Continental Lumber knowingly, deliberately, and intentionally disengaged the edger's anti-kickback safety device believing that injury to an employee was substantially certain to occur.

Continental Lumber moved for summary judgment on two alternative theories. Continental Lumber claims that Harn's action is barred by the exclusivity provisions of SDCL 62-3-2. Alternatively, Continental Lumber claims that the action is barred by an election of remedies due to Harn's acceptance of worker's compensation benefits. That issue has not been raised in this appeal. The trial court denied Continental Lumber's motion for summary judgment, holding that the record presented genuine issues of material fact. We disagree.


Our standard of review for a grant or denial of summary judgment is well settled. Lamp v. First Nat. Bank of Garretson, 496 N.W.2d 581 (S.D.1993). A party is entitled to summary judgment "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).

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.

Lamp, supra, 496 N.W.2d at 583; Waddell v. Dewey Cnty. Bank, 471 N.W.2d 591 (S.D.1991). Summary judgment is usually not appropriate in negligence actions because the standard of a reasonable person must be applied to conflicting testimony. If, however, the facts are undisputed, the issue becomes one of law for this Court to decide. Taggart v. Ford Motor Credit Co., 462 N.W.2d 493 (S.D.1990); Gasper v. Freidel, 450 N.W.2d 226 (S.D.1990). Thus, summary judgment is appropriate to dispose of legal, not factual questions. Ramesbotham v. Farmers Elevator Co., 428 N.W.2d 542 (S.D.1988); Hamaker v. Kenwel-Jackson Machine, Inc., 387 N.W.2d 515 (S.D.1986).

There is no dispute as to the material facts in this action. The question is, as a matter of law, whether Continental Lumber's conduct amounted to negligent conduct or whether such conduct amounted to an intentional tort thus limiting Harn to the exclusive remedies provided under the workmen's compensation scheme.

Our worker's compensation statutes feature an exclusivity of remedies provision in SDCL 62-3-2:

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.

Worker's compensation is the exclusive remedy for all on-the-job injuries to workers except those injuries intentionally inflicted by the employer. Under the intentional tort exception, workers may bring suit against their employers at common law only when an ordinary, reasonable, prudent person would believe an injury was substantially certain to result from the employer's conduct. Brazones v. Prothe, 489 N.W.2d 900 (S.D.1992); Jensen v. Sport Bowl, Inc., 469 N.W.2d 370 (S.D.1991); VerBouwens v. Hamm Wood Products, 334 N.W.2d 874 (S.D.1983). The worker must 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 the employer's conduct. Jensen, supra, at 372, citing 2A Larson, The Law of Workmen's Compensation, § 68.14 (1990).

The purpose behind the South Dakota Worker's Compensation Act is twofold. First, the worker's compensation provision is to provide an injured employee a remedy which is both expeditious and independent of proof of fault. Brazones v. Prothe, supra, 489 N.W.2d at 905; Scissons v. City of Rapid City, 251 N.W.2d 681 (S.D.1977). Secondly, the legislation is to provide employers and co-employees a liability which is limited and determinate. Brazones, supra, 489 N.W.2d at 906; Scissons, supra, 251 N.W.2d at 686. To this end, the legislation employs the highest standard of liability possible.

Worker's compensation was designed by the legislature to be the exclusive method for compensating workers injured on the job in all but extraordinary circumstances. Jensen, supra, 469 N.W.2d at 371. This Court construes worker's compensation statutes liberally to provide coverage even when the worker would prefer to avoid it. Goodman v. Sioux Steel Co., 475 N.W.2d 563 (S.D.1991); Jensen, supra, 469 N.W.2d at 371; South Dakota Med. Service v. Minnesota Mut. Fire & Cas. Co., 303 N.W.2d 358 (S.D.1981).

An extraordinary circumstance where worker's compensation is not the exclusive remedy is where the employer intends to cause the injury suffered by the worker. However, it is "almost unanimous" among state and federal courts interpreting this exception that intent really means intent. Jensen, supra, 469 N.W.2d at 371, citing 2A Larson, § 68.13.

The majority rule in this country, construing the intentional tort exception narrowly, is the law in South Dakota. Brazones, supra, 489 N.W.2d at 906; Jensen, supra, 469 N.W.2d at 372. In South Dakota, intent pointedly means intent. Brazones, supra, 489 N.W.2d at 906; Jensen, supra, 469 N.W.2d at 371. Even when employers...

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