Olson-Roti v. Kilcoin, No. 22244

• Decision Date: 23 October 2002
• Docket Number: No. 22244, No. 22245.
• Parties: Shirleen OLSON-ROTI, Marcia Hohn, Mary Thompson, Gert Hein, Teresa Fonder, Pegge Starr, Verdell Knittel, Sandy Brueske, Sally Weber, Tiffany Tebay, Connie Hjelm And Susie Smith, Plaintiffs and Appellants, v. Linda KILCOIN, as Personal Representative of Bert Van Dyke and Van Dyke Supply Company and Ferro Corporation, Defendants and Appellees.
• Court: South Dakota Supreme Court

653 N.W.2d 254

2002 SD 131

Shirleen OLSON-ROTI, Marcia Hohn, Mary Thompson, Gert Hein, Teresa Fonder, Pegge Starr, Verdell Knittel, Sandy Brueske, Sally Weber, Tiffany Tebay, Connie Hjelm And Susie Smith, Plaintiffs and Appellants, v. Linda KILCOIN, as Personal Representative of Bert Van Dyke and Van Dyke Supply Company and Ferro Corporation, Defendants and Appellees.

Nos. 22244, 22245.

Supreme Court of South Dakota.

Argued August 27, 2002.

Decided October 23, 2002.

Rick Johnson of Johnson, Eklund, Nicholson & Peterson, Gregory, SD, for plaintiffs and appellants.

Susan Brunick Simons of Davenport, Evans, Hurwitz & Smith, Sioux Falls, SD, for defendants and appellees.

SABERS, Justice.

[¶ 1.] Justice RICHARD W. SABERS delivers the majority opinion of the Court on Issue 1, which holds that hearsay statements by the decedent were admissible.

[¶ 2.] Justice SABERS delivers the majority opinion on Issue 2, which holds that Olson-Roti alleged a cause of action in her complaint and may pursue punitive damages.

[¶ 3.] The separate writings of Justice JOHN K. KONENKAMP, joined by Justice ROBERT A. AMUNDSON, and of Chief Justice DAVID GILBERTSON, joined by Justice STEVEN ZINTER, control Issue 3, and hold that a claim for punitive damages does not survive the tortfeasor's death.

[¶ 4.] Justice SABERS dissents on Issue 3.

[¶ 5.] SABERS, Justice, writing the majority opinion on Issues 1 and 2.

[¶ 6.] Shirleen Olson-Roti and 11 others (collectively Olson-Roti) employed by Van Dyke Supply Company filed suit against Company and its owner, Bert Van Dyke, claiming damages for intentional and negligent exposure to dangerous chemicals. Van Dyke died prior to completion of the lawsuit and his daughter, Linda Kilcoin, was named personal representative of his estate and substituted as a defendant (collectively Company). Company now claims 1) on notice of review, that hearsay statements by decedent Van Dyke are inadmissible, 2) that Olson-Roti cannot pursue punitive damages without a separate cause of action, and 3) that a claim for punitive damages does not survive a tortfeasor's death. The trial court granted the motion for summary judgment on Issue 3 and ruled that hearsay statements made by Van Dyke were admissible under SDCL 19-16-34. We affirm all issues through separate opinions.

FACTS

[¶ 7.] Van Dyke owned Company, located in Woonsocket, South Dakota. Among other products, Company manufactured eyes used by taxidermists. The eyes were made of glass and painted in two "eye rooms." Company employed approximately 30 women to paint the glass eyes.

[¶ 8.] Company purchased dry paint pigment from Ferro Corporation in Pittsburgh, Pennsylvania, and mixed the dry pigment with other paints to create the paint used on the glass eyes. When delivered, the paint drums were labeled with content descriptions and were accompanied by material safety data sheets. The paints contained both lead and cadmium.¹ After delivery, the paint was either stored in small jars, which were placed on the painting tables for the hand painters, or was attached to an airbrush for the paint sprayers. There were no labels on the jars used by the workers and the labels on the paint drums had been removed.

[¶ 9.] There was a general rule prohibiting eating in the eye rooms, but the rule was not strictly enforced until March 1994, when Van Dyke informed the employees that eating in the eye rooms was not permitted. He later posted signs indicating that eating in the eye rooms was prohibited.

[¶ 10.] In April 1994, Sally Weber, a supervisor in one of the eye rooms, underwent a blood test, which indicated a high level of lead in her blood. Upon learning the results, Weber advised another employee, Shirleen Olson-Roti, to visit her doctor. She also underwent a blood test, which indicated a high level of lead in her blood. Olson-Roti reported the results of her blood test to Van Dyke and he suggested that all of the employees who worked in the eye rooms have their blood tested. Blood testing revealed that 8 women had toxic lead poisoning levels and 12 women had elevated levels.² Olson-Roti claims the eye room workers were never informed of the presence of lead and cadmium in the paints they used.

[¶ 11.] In March 1995, Van Dyke sold Company to Cabela's. Olson-Roti filed suit against Van Dyke and Company on February 27, 1996, alleging that Van Dyke and Company intentionally and negligently exposed employees to dangerous chemicals. An amended complaint was filed March 12, 1996 and a second amended complaint was filed February 5, 1997, which added Ferro Corporation as a defendant. Ferro Corporation was later dismissed by stipulation.

[¶ 12.] Company moved for summary judgment on May 4, 1999, arguing that the exclusivity provision under worker's compensation law, SDCL 62-8-6, precluded Olson-Roti's lawsuit. The trial court denied the motion, stating that the exclusivity provision of SDCL 62-8-6 does not prohibit employees from bringing lawsuits for the intentional torts of their employers.

[¶ 13.] The motion for summary judgment was renewed on September 11, 2000. The trial court denied the renewed motion for summary judgment on October 30, 2000.

[¶ 14.] On August 22, 2001, Company filed a motion for summary judgment on the basis that a claim for punitive damages did not survive the death of Van Dyke. Company also challenged the admissibility of hearsay statements made by Van Dyke and presented through the affidavits and testimony of two former Company employees, Robert Rieger and Robert Kokesh.

[¶ 15.] The hearsay statements were those of Van Dyke and went directly to his knowledge of the dangers to the women and his refusal to warn them of those dangers. For example, when asked whether the women knew of the danger inherent in their work environment, Van Dyke replied, "[w]hat they don't know won't hurt them." When advised that he should warn the women of the health risks inherent in working with the paint, he asked, "[w]ell, who would I get to paint this if they knew about this?" Kokesh also testified that he heard Van Dyke telling a plant manager that "the stuff would be gone in two weeks" and ordering the manager not to say a ". . . word about it to anyone else."

[¶ 16.] A hearing was held on December 6, 2001. On January 3, 2002, the trial court granted the motion for summary judgment on punitive damages but determined that the hearsay statements were admissible.

[¶ 17.] Olson-Roti appeals the summary judgment on Issue 3 and Company filed notice of review on Issue 1. For the purposes of brevity and clarity, we address the notice of review first, as Issue 1.

STANDARD OF REVIEW

[¶ 18.] Our standard of review for summary judgment is well established and is "whether a genuine issue of material fact exists and whether the law was correctly applied." Manuel v. Wilka, 2000 SD 61, ¶ 17, 610 N.W.2d 458, 462 (quoting Parmely v. Hildebrand, 1999 SD 157, ¶ 7, 603 N.W.2d 713, 715-16 (citations omitted)). Questions of law are reviewed de novo without deference to the trial court. City of Colton v. Schwebach, 1997 SD 4, ¶ 8, 557 N.W.2d 769, 771 (citing Jasper v. Smith, 540 N.W.2d 399, 401 (S.D.1995)).

[¶ 19.] "[E]videntiary rulings made by the trial court are presumed correct and are reviewed under an abuse of discretion standard." State v. Perovich, 2001 SD 96, ¶ 11, 632 N.W.2d 12, 15 (citing State v. Goodroad, 1997 SD 46, ¶ 9, 563 N.W.2d 126, 129). "The test is not whether we would have made the same ruling, but whether we believe a judicial mind, in view of the law and the circumstances, could have reasonably reached the same conclusion." Goodroad, 1997 SD 46 at ¶ 9, 563 N.W.2d at 129 (citing State v. Rufener, 392 N.W.2d 424, 426 (S.D.1986)). While the "ultimate decision to admit or not admit evidence is reviewable under the `abuse of discretion' standard, the court's preliminary determination of whether the hearsay evidence is reliable will not be overturned unless it is clearly erroneous." State v. Davi, 504 N.W.2d 844, 849 (S.D. 1993) (quoting Matter of R.S.S., 474 N.W.2d 743, 749 (S.D.1991)).

[¶ 20.] 1. WHETHER THE TRIAL COURT ERRED IN CONCLUDING THAT VAN DYKE'S STATEMENTS ARE ADMISSIBLE UNDER SDCL 19-16-34.

[¶ 21.] Robert Rieger, an employee of Company, through an affidavit and live testimony, stated that he had discussions with Van Dyke regarding the exposure of the workers in the eye rooms to lead and cadmium. He stated that when he approached Van Dyke about the missing paint drum labels, Van Dyke told him, "[w]hat they don't know won't hurt them." Robert Kokesh, a maintenance employee at Company, stated in a sworn affidavit, that he was ordered to clean up the eye rooms prior to the arrival of an OSHA inspector. He stated that because of his exposure to the paint, he became ill and learned that he had a high concentration of lead in his system. Kokesh stated that he heard Van Dyke tell his son-in-law, Bill Kilcoin, that "the stuff would be gone in two weeks and they were not to say a `word about it' to anyone."

[¶ 22.] Following a hearing regarding the reliability of Rieger and Kokesh's statements, the trial court concluded that the statements were admissible under SDCL 19-16-34. Company argues that the trial court erred in concluding that Van Dyke's statements were admissible through the testimony of Rieger and Kokesh, claiming that the testimony is neither reliable nor corroborated by other evidence.

[¶ 23.] SDCL 19-16-34, which addresses the admissibility of a decedent's statements, provides:

In actions, suits, or proceedings by or against the representatives of deceased persons including proceedings for the probate of wills, any statement of the deceased, whether oral or written shall not be excluded as hearsay, provided that the trial judge shall first find as a fact that the statement was made by decedent, and that it was in good faith and on decedent's personal knowledge.

(emphasis added). This Court liberally construes this statute so...