Johansen v. Anderson

• Citation: 555 N.W.2d 588
• Decision Date: 18 November 1996
• Docket Number: No. 960094,960094
• Parties: Shirley JOHANSEN, Individually, and as the Personal Representative of the Estate of Dennis Johansen, Plaintiff and Appellant v. Lane ANDERSON, Defendant and Appellee. Civil
• Court: United States State Supreme Court of North Dakota

Page 588

555 N.W.2d 588

Shirley JOHANSEN, Individually, and as the Personal Representative of the Estate of Dennis Johansen, Plaintiff and Appellant v. Lane ANDERSON, Defendant and Appellee.

Civil No. 960094.

Supreme Court of North Dakota.

Nov. 18, 1996.

Donald T. Campbell (argued) of Pringle & Herigstad, PC, Minot, for plaintiff and appellant. James E. Nostdahl on brief.

Paul F. Ebeltoft (argued) of Mackoff, Kellogg, Kirby & Kloster, PC, Dickinson, for defendant and appellee.

NEUMANN, Justice.

Shirley Johansen, individually, and as personal representative of the estate of her deceased husband, Dennis Johansen, appealed from a summary judgment dismissing her action for damages against Lane Anderson. We reverse and remand.

In February 1992, Lane Anderson purchased a drill fill and bin sweep from the Farmers Union Elevator in New Town. The drill fill is used to transfer seed from a grain truck box to a drill or planter. The bin sweep is used for directing grain from a grain bin toward an auger which then carries the grain up into a truck box. Both of these pieces of equipment can be operated by attaching hoses to a hydraulic hoist system on a grain truck. Jene Hasby, an employee with the elevator, modified Anderson's grain truck hydraulic system to operate the bin sweep and drill fill. He installed a diverter valve which is pushed in or pulled out to operate either the truck box hoist or one of these other pieces of equipment, which are attached by hoses to hydraulic couplings on the truck.

Dennis Johansen was killed while using the bin sweep as an employee on Anderson's farm. On the morning of the accident, Dennis Johansen was using the bin sweep to auger grain from a bin into Anderson's truck. Just as he was exiting the bin, the truck box unexpectedly rose, pushing the grain elevator into the side of the bin and crushing Johansen between the auger and the bin. He later died from the injuries suffered in this accident.

Shirley Johansen sued Anderson for the wrongful death of her husband, claiming Anderson's failure to provide a safe work environment and equipment was the proximate cause of the accident. Her complaint alleged "the hydraulic system malfunctioned as the result of the negligence of [Anderson] in failing to properly install, maintain, and instruct, Dennis Johansen on the use of, the hydraulic system." Anderson's motion for summary judgment dismissal was granted by the district court, and Shirley Johansen appealed.

Summary judgment under Rule 56, N.D.R.Civ.P., is a procedural device for promptly and expeditiously disposing of a controversy without a trial if there is no genuine issue of material fact, or if the law is such that resolution of the factual dispute will not alter the result. A & H Services, Inc. v. City of Wahpeton, 514 N.W.2d 855 (N.D.1994). A party seeking summary judgment must initially show the absence of a genuine issue of material fact, but once the movant has met that initial burden, the party opposing the motion cannot rest on mere allegations or denials in pleadings, but must present competent admissible evidence by affidavit or other comparable means to show the existence of a genuine issue of material fact. Security Nat'l Bank of Edgeley v. Wald, 536 N.W.2d 924 (N.D.1995). In determining if a genuine issue of material fact exists, the court may examine the pleadings, depositions, admissions, affidavits, interrogatories, and inferences to be drawn therefrom. Stewart v. Ryan, 520 N.W.2d 39 (N.D.1994). The court must view the evidence in the light most favorable to the party opposing the motion, and give to that party the benefit of all favorable inferences which it can reasonably draw from the evidence. A & H Services, 514 N.W.2d at 856.

In determining whether summary judgment is warranted, the court must consider the substantive standard of proof at trial. A & H Services, 514 N.W.2d at 857. The court must view the evidence presented through the "prism of the substantive evidentiary burden," bearing in mind the actual quantum and quality of proof necessary to support liability. State Bank of Kenmare v. Lindberg, 471 N.W.2d 470, 474 (N.D.1991). Summary judgment is proper against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case on which that party will bear the burden of proof at trial. Matter of Estate of Stanton, 472 N.W.2d 741 (N.D.1991).

Shirley Johansen claims Anderson is liable for failing to provide a safe work environment and equipment for his employee, Dennis Johansen, in three respects: (1) Anderson negligently hired Jene Hasby to modify the grain truck hydraulic system; (2) Anderson negligently failed to inspect the modified hydraulic system; and (3) Anderson is liable for Hasby's negligent modification of the hydraulic system.

It is well settled that an employer owes an employee a duty to exercise ordinary care to furnish the employee with a reasonably safe workplace and tools. Maurer v. Wagner, 509 N.W.2d 258 (N.D.1993). We explained the employer's duty to provide a safe workplace in Titus v. Titus, 154 N.W.2d 391, 393, Syllabus 7 (N.D.1967):

"The employer is bound to observe all the care which prudence and the exigency of the situation require, with respect to furnishing instrumentalities adequately safe for the use of the employee, and, when such instrumentalities are furnished, the employer is required, further, to exercise due care in keeping the same safe and serviceable; and, with this end in view, the employer is bound to make seasonable inspection of the condition of the instrumentalities furnished for the use of the employee."

As explained in Volume 3, Modern Tort Law § 43.22 (Rev. Ed.1990), agricultural employers have the same duty to provide employees with a safe workplace as other employers:

"The rancher or farmer, like any other employer, is under a duty to exercise ordinary care for the safety of employees. This has been held to include the duty to provide a reasonably safe place to work, and reasonably safe tools, implements and appliances with which to perform it.

* * * * * *

"These duties are nondelegable, and the agricultural employer cannot escape liability by contracting with another person for their performance. But the duty is not absolute, and with rare exception is limited to exercising ordinary care."

NEGLIGENT HIRING

Shirley Johansen asserts Anderson was negligent in hiring Jene Hasby to modify the truck's hydraulic system, because Hasby was not in the business of modifying hydraulic systems and had only modified one other truck hydraulic system in the past seven or eight years. According to the Restatement, Second, Torts § 411 (1965) an employer can be liable for failing to use reasonable care to hire a contractor:

" § 411. Negligence in Selection of Contractor

"An employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor

"(a) to do work which will involve a risk of physical harm unless it is skillfully and carefully done, or

"(b) to perform any duty which the employer owes to third persons."

Thus, Anderson had a duty to act reasonably in hiring someone to modify the hydraulic system.

Hasby testified by deposition that he had previously worked as a mechanic with Boeing and was currently an assistant manager at the elevator, where, as part of his duties, he would repair equipment such as bearings and motors. Anderson bought the drill fill and bin sweep from the elevator and Hasby agreed to modify the hydraulic system on Anderson's truck so these items could be used with it. Shirley Johansen has not presented any evidence, by affidavit, deposition, or otherwise, showing Anderson knew Hasby had installed only one unit in the past seven or eight years or that he had any reason to believe Hasby was not qualified to install these farm items which the elevator had sold to him.

Questions of negligence are questions of fact for a jury to determine unless the evidence is such that reasonable people can draw but one conclusion therefrom. Benjamin v. Benjamin, 439 N.W.2d 527 (N.D.1989). Shirley Johansen has failed to produce evidence from which a reasonable person could conclude Anderson was negligent in allowing Hasby to modify the hydraulic system. She has simply failed to produce sufficient evidence on that issue to raise a genuine issue of material fact and forestall summary dismissal of that claim.

NEGLIGENT FAILURE TO INSPECT

Included within the duty to provide safe tools for employees, an employer is required to make seasonable inspection of the condition of the tools he furnishes for the use of his employees. Titus, 154 N.W.2d at 397-398. Shirley Johansen claims Anderson was negligent because the evidence shows he did not inspect the modified hydraulic system. However, there is no evidence in the record that an inspection of the system by Anderson would have revealed any defect or problem with it. The record shows both Anderson and Dennis Johansen used the modified hydraulic system with the drill fill during the Spring of 1992, without incident. There is no evidence of any potential problem with the system prior to the accident. After the accident Shirley Johansen secured an expert in hydraulic systems, who concluded the modified hydraulic system should have "incorporated another directional valve to accommodate two hydraulic components to prevent both the hoist and the sweep auger from operating at the same time." However, there is no evidence that an inspection of the Liability cannot be predicated on negligent failure to inspect where there is no showing that a reasonable inspection would have revealed a problem prior to a malfunction. Dahlbeck v. DICO Co., Inc., 355 N.W.2d 157 (Minn.App.1984) (directed verdict against plaintiff was appropriate where there was no evidence that an inspection of switches on a truck would have revealed...