McMillin v. Mueller
| Decision Date | 23 March 2005 |
| Docket Number | No. 23215.,23215. |
| Citation | 2005 SD 41,695 N.W.2d 217 |
| Parties | Dale McMILLIN, as Personal Representative of the Estate Of Roger McMillin, and Roland Heinert and Darlene Heinert, as the Special Administrator of the Estate of Duane Heinert, Plaintiffs and Appellants, v. Frank MUELLER, Individually and as an Agent of Mueller Feed Mill, Inc.; Fred Mueller Individually and as an Agent of Mueller Feed Mill, Inc., and Mueller Feed Mill, Inc., Defendants and Appellees. |
| Court | South Dakota Supreme Court |
Rena M. Atchison of Abourezk & Zephier, Rapid City, South Dakota, Attorneys for plaintiff and appellant Estate of Roger McMillin.
Stephanie E. Pochop of Johnson Eklund Law Office, Gregory, South Dakota, Attorneys for plaintiff and appellant Estate of Duane Heinert.
Thomas H. Barnes of Costello, Porter, Hill, Heisterkamp, Bushnell & Carpenter, Rapid City, SD, Attorneys for defendants and appellees Frank and Fred Mueller individually.
Charles M. Thompson of May, Adam, Gerdes & Thompson, Pierre, South Dakota, Attorneys for defendant and appellee Mueller Feed Mill, Inc.
[¶ 1.] Roger McMillin and Duane Heinert were employees at Mueller Feed Mill, Inc., located outside of Martin, South Dakota. On September 10, 2002, Roger and Duane died while cleaning an underground storage tank containing molasses used to mix and flavor livestock feed. Dale McMillin, as personal representative of the estate of Roger McMillin, and Rolan Heinert, as special administrator of the estate of Duane Heinert (collectively estates) brought a tort claim against Frank and Fred Mueller individually and Mueller Feed Mill, Inc. (Mill). Defendants moved for summary judgment pursuant to SDCL 15-6-56(b) claiming that the South Dakota Workers' Compensation Act was the exclusive remedy for the estates. The trial court, the Honorable Kathleen F. Trandahl, granted summary judgment to the defendants. The estates appeal arguing that the trial court committed error when it granted summary judgment to defendants. We affirm.
[¶ 2.] Mill has operated near Martin, South Dakota for over forty years. As part of Mill's business, it produces livestock feed by processing grains into pellets and mixing those pellets with molasses. This makes the pellets stick together and gives them flavor. The Mueller family has operated the Mill since its inception and the current president is Frank Mueller. Fred Mueller (Frank's father) is considered an owner of the Mill although his exact title is unclear.
[¶ 3.] The molasses used to flavor the pellets is stored in a large underground tank resembling a propane tank. The tank itself is approximately eight feet in diameter and twenty to twenty-five feet in length. There is a four-inch outlet pipe and a pump at one end that distributes the molasses to a conditional chamber to be mixed with the pellets. There is only one access point into the tank, through a hole at the top covered by two lids.1 To gain entry into the tank, a person is lowered by standing on a log chain attached to a forklift located directly above the hole. Another employee must lower the chain and the person into the tank. The tank requires yearly cleaning due to the tendency of the molasses to dry and become chunky, clogging the pump and the outlet pipe. The only method of cleaning is by lowering a person into the tank who then manually removes the chunks from the outlet pipe and the walls. In the forty years the Mill has mixed molasses with feed pellets, many employees, including Fred and Frank Mueller and Frank's son Ryan, have entered the molasses tank to perform its yearly cleaning.
[¶ 4.] On September 10, 2002, Frank Mueller made the decision to clean the molasses tank. That morning, after removing the tank's lids and leaning his head about a foot into the tank, Frank inspected it with a flashlight and determined someone needed to go into the tank and remove the chunks from the walls and the outlet. Frank then met with his employees, Roger McMillin, Duane Heinert, Harlan Richards and David McMillin to discuss their daily assignments. Roger and Duane were assigned to replace the bearings in a leg on top of the Mill that was located outside of the building housing the molasses tank while David, Harlan and Frank went to the mill room to clean the molasses tank.
[¶ 5.] Around 8:30 a.m., David lowered Harlan into the tank while Frank watched from the side. Just as Harlan's head was about three or four inches from the top of the hole, Harlan told Frank and David that he could not breathe and to take him out of the hole.2 After Harlan was taken out of the tank, Frank went to Duane and Roger and asked them to clean the tank when they were finished replacing the bearings. Since both Duane and Roger had been in the tank before, Duane said he would finish the job. By the time Duane and Roger entered the mill room, Harlan and David were working in another area of the Mill and did not get a chance to discuss Harlan's breathing difficulties while in the tank.
[¶ 6.] As Roger lowered Duane into the molasses tank, Frank went back to his office. By the time Roger got off of the forklift and looked down into the tank, Duane was face down in the bottom of the tank. Roger then yelled to Harlan and David for help and Harlan went to Frank's office to tell him something was wrong in the mill room. When Frank entered the mill room, Roger was standing above the tank's opening and was trying to get Duane to answer. Frank looked in the tank and saw Duane laying crossways in the molasses. Roger told Frank that he thought Duane had suffered a heart attack. Frank immediately left the mill room to obtain a safety harness to remove Duane from the tank. While Frank was out of the mill room, David moved into the driver's seat of the forklift and lowered Roger into the tank. After Roger was completely in the tank, Frank returned to the mill room to find Roger trying to turn Duane over. At that moment, Roger fell on top of Duane. Frank rushed to his office and called 911. Frank then waited in the mill room until the emergency personnel arrived.
[¶ 7.] When emergency services arrived, Duane and Roger were removed from the tank. Both were pronounced dead at the scene and the cause of death was later described as "asphyxiation/aspiration" and/or "suffocation secondary to exposure to an environment high in hydrogen sulfide and low in oxygen." The Hazardous Material Team from the Rapid City Fire Department concluded that oxygen levels in the tank were around 5.7 percent, the carbon monoxide level reached 62 ppm, the LEL alarm sounded and hydrogen sulfide rapidly climbed and saturated the sensor. In other words, the lack of oxygen and high level of hydrogen sulfide made it impossible to breathe in the tank. When asked how this gas was produced, the Hazardous Material Team suggested the molasses fermented in the hot, dry summer which was above the average for heat and dryness.
[¶ 8.] Dale McMillin, as personal representative for the estate of Roger McMillin, and Rolan Heinert, as special administrator for the estate of Duane Heinert, brought an intentional tort claim arising out of the workplace deaths of Roger and Duane against Frank and Fred Mueller individually and the Mill. The defendants moved for summary judgment as a matter of law claiming that SDCL 62-3-2 limited the plaintiffs' exclusive remedy as a recovery under the South Dakota Workers' Compensation Act. The plaintiffs disagreed and argued that a 1999 Safety Plan, implemented by the Mill and submitted to the Occupational Safety and Health Administration (OSHA), removed the recovery from the exclusivity of the workers' compensation laws and into the realm of intentional tort law.3 The estates alleged that since the safety plan was in effect, the Muellers knew of the probable harm of entering the tank without a breathing apparatus and deliberately put their employees at risk. The trial court granted summary judgment to the defendants. The estates appeal.
[¶ 9.] Our standard of review for the grant or denial of a motion for summary judgment is well settled.
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 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).
Holzer v. Dakota Speedway, Inc., 2000 SD 65, ¶ 8, 610 N.W.2d 787, 791. " Taggart v. Ford Motor Credit Co., 462 N.W.2d 493 (S.D.1990) (quoting 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, 543 (S.D.1988) (citing Hamaker v. Kenwel-Jackson Machine, Inc., 387 N.W.2d 515 (S.D.1986)).
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