Jensen v. Sport Bowl, Inc.

• Decision Date: 10 January 1991
• Docket Number: 17171,Nos. 17156,s. 17156
• Citation: 469 N.W.2d 370
• Parties: Vickie L. JENSEN as Guardian Ad Litem for Robert Jensen, a Minor, Plaintiff and Appellant, v. SPORT BOWL, INC., a South Dakota Corporation, and Brunswick Corporation, a Delaware Corporation, Defendants and Appellees. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 370

469 N.W.2d 370

Vickie L. JENSEN as Guardian Ad Litem for Robert Jensen, a Minor, Plaintiff and Appellant, v. SPORT BOWL, INC., a South Dakota Corporation, and Brunswick Corporation, a Delaware Corporation, Defendants and Appellees.

Nos. 17156, 17171.

Supreme Court of South Dakota.

Considered on Briefs Jan. 10, 1991.

Decided April 24, 1991.

Dennis C. McFarland, McFarland & Nicholson, Sioux Falls, for plaintiff and appellant.

Michael L. Luce, Davenport, Evans, Hurwitz & Smith, Douglas E. Hoffman of Davenport, Evans, Hurwitz & Smith (on brief), Sioux Falls, for defendant and appellee, Sport Bowl, Inc.

Richard O. Gregerson, Woods, Fuller, Shultz & Smith, P.C., Sioux Falls, for defendant and appellee, Brunswick Corp.

SABERS, Justice.

An employed minor was injured while working at a bowling alley. Summary judgment was granted dismissing his tort action against employer on the basis of worker's compensation exclusivity. He appeals.

Facts

Robert Jensen was 14 years old when he went to work as a pinchaser for Sport Bowl (employer) in the fall of 1986. Part of Jensen's job was to wipe oil from automatic pinsetting machines. On November 23, 1986, between 9:30 and 10:00 p.m., Jensen lost his right index finger when the rag he was using to wipe oil from a pinsetting machine became entangled in a moving pulley.

Employer's worker's compensation carrier paid all Jensen's medical bills directly to his health care providers and sent Jensen several checks for disability benefits under SDCL Title 62. Jensen's mother, as guardian ad litem, did not cash any of the checks received from employer's insurer.

On March 25, 1988, Jensen sued employer in tort for $250,000 in compensatory damages and $500,000 in punitive damages. Two years later, the circuit court granted summary judgment for employer dismissing Jensen's action and holding as a matter of law that worker's compensation was Jensen's exclusive remedy against employer.

On appeal, Jensen argues that employer's conduct comes within the "intentional tort" exception to the worker's compensation exclusive remedy rule, and, in the alternative, even if employer's conduct was merely negligent, the illegal employment of a minor gives the minor, if injured, a cause of action at common law. Employer claims the facts pled by Jensen do not constitute an intentional tort, that the employment of a minor is insufficient to defeat worker's compensation exclusivity, and, on cross-appeal, that Jensen's action is barred by his acceptance of worker's compensation benefits.

1. 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. SDCL 62-3-2. ¹ 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." VerBouwens v. Hamm Wood Products, 334 N.W.2d 874, 876 (S.D.1983) (emphasis original).

South Dakota courts may grant summary judgment when, viewing the evidence in the light most favorable to the nonmoving party, the moving party clearly shows that there is no issue of material fact. Wilson v. Great N. Ry. Co., 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968). However, a prediction that the nonmoving party will not prevail on a material issue of fact is not a sufficient basis for granting summary judgment, and it is generally not appropriate where "the standard of the reasonable [person] must be applied to conflicting testimony." 83 S.D. at 212, 213, 157 N.W.2d at 21, 22. Jensen argues that since the scope of worker's compensation preemption depends on whether an ordinary, reasonable and prudent person would believe the injury was substantially certain to result from the employer's conduct, and since this is generally a question for the trier of fact, the circuit court erred in disposing of it summarily.

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. See Shearer v. Homestake Min. Co., 557 F.Supp. 549, 552-53 (D.S.D.1983), aff'd, 727 F.2d 707 (8th Cir.1984). Consequently, this court construes worker's compensation statutes liberally to provide coverage even when the worker would prefer to avoid it. S.D. Med. Service v. Minn. Mut. Fire & Cas. Co., 303 N.W.2d 358, 361 (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. 2A Larson, The Law of Workmen's Compensation Sec. 68.13 (1990). Even the minority of state courts which attempted to expand the intentional tort exception to include willful, wanton and reckless misconduct by employers have either backtracked in later decisions or have found their earlier decisions legislatively overruled. Id., Sec. 68.15.

The majority rule construing the intentional tort exception narrowly is the law in South Dakota. Even when employers act or fail to act "with a conscious realization that injury is a probable ... result," worker's compensation is still the exclusive remedy for workers thereby injured. VerBouwens, 334 N.W.2d at 876 (emphasis original). "To establish intentional conduct, more than the knowledge and appreciation of risk is necessary; the known danger must ... become a substantial certainty." Id. (emphasis original).

Jensen's complaint alleges that an ordinary, reasonable and prudent person would believe that his injury was "substantially certain" to result from employer's conduct. However, it is not enough simply to use the right terminology invoking the intentional tort exception. 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. 2A Larson, supra, Sec. 68.14 (citing Joyce v. A.C. & S., Inc., 785 F.2d 1200 (4th Cir.1986); Keating v. Shell Chemical Co., 610 F.2d 338 (5th Cir.1980)). "[S]ubstantial certainty should not be equated with substantial likelihood." Beauchamp v. Dow Chemical Co., 427 Mich. 1, 398 N.W.2d 882, 893 (1986).

Viewing the evidence and the pleadings in a light most favorable to Jensen's case, Jensen was an inexperienced, inadequately trained, 14-year-old boy ordered by his employer, without any warning of the danger, to perform a maintenance task which the employer knew from personal experience to be risky. Even so, this does not allege the elements necessary to an intentional tort cause of action. Therefore, these facts do not come within the intentional tort exception to worker's compensation coverage as a matter of law. We affirm summary judgment in favor of employer on this issue.

2. Illegally Employed Minor

Jensen next argues that even if employer's conduct did not amount to an intentional tort but was merely negligent, Jensen has a cause of action at common law because he was not under a "contract of employment" within the meaning of SDCL 62-1-3.

SDCL 62-1-3 defines employees covered by worker's compensation as "every person, including a minor, in the services of another under any contract of employment, express or implied[.]" (Emphasis added.) However, under South Dakota law, any contract is "void" insofar as its object is unlawful. SDCL 53-5-3, -4. See also 53-9-1 and 20-2-2.

Jensen claims that he had no contract of employment with employer under SDCL 62-1-3 because the object of the purported contract violated federal and state child labor laws. Specifically, federal regulations implementing the Fair Labor Standards Act at 29 CFR Secs. 570.33(b) and 570.35(6) (1990) prohibit minors between the ages of 14 and 16 from "tending ... any power-driven machinery other than office machines" and from working later than 7:00 p.m. Moreover, SDCL 60-12-3 prohibits children under sixteen years of age from working "in any occupation dangerous to life, health, or morals[.]" This court has held that "to employ a minor under 16 to adjust a belt upon a moving piece of machinery ... and to oil and grease said machinery while in motion might well be held, as a matter of law, to amount to the employment of such child in an occupation dangerous to life within the contemplation of [SDCL 60-12-3,]" and that "employment contrary to the terms of a child labor statute is sufficient, standing alone, to establish negligence on the part of the employer in the event of an injury to the minor." Koenekamp v. Picasso, 64 S.D. 567, 570, 571, 269 N.W. 74, 76, 77 (S.D.1936).

Reading federal and state law together, Jensen claims that (1) his contract for employment with employer, if illegal, is outside the scope of worker's compensation coverage, and therefore, (2) whether his job with employer was illegal under state and federal child labor laws was a material issue of fact for which summary judgment was inappropriate.

First, this is primarily a question of construing South Dakota's worker's compensation law because the federal Fair Labor Standards Act, 29 U.S.C. at Secs. 203(l) and 212 (1988), provides no private federal cause of action for its violation which would preempt the worker's compensation laws of South Dakota. Kube v. Kube, 193 Neb. 559, 227 N.W.2d 860 (1975); Breitwieser v. KMS Industries, Inc., 467 F.2d 1391 (5th Cir.1972), cert. denied, 410 U.S. 969, 93 S.Ct. 1445, 35 L.Ed.2d 705 (1973).

Secondly, whether illegally employed minors are in or out of worker's compensation's exclusive coverage has been answered differently by different jurisdictions, and even differently within the same jurisdiction at different periods in history or in different factual contexts. 1C Larson, supra, Sec. 47.52(a); 81 Am.Jur.2d Workmen's Compensation ...