Strain v. Christians
| Decision Date | 01 April 1992 |
| Docket Number | No. 17403,17403 |
| Citation | 483 N.W.2d 783,121 Lab.Cas.P 56 |
| Parties | 30 Wage & Hour Cas. (BN 1385, 60 USLW 2658, 121 Lab.Cas. P 56,899 Art STRAIN and Verla Strain, as the Special Administrators of the Estate of Tyler Strain, Deceased, Plaintiffs and Appellees, v. Harry CHRISTIANS, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Rick Johnson, Stephanie Pochop, Johnson, Eklund & Abourezk, Gregory, Leon Vanderlinden, Delaney, Vanderlinden & Delany, Webster, for plaintiffs and appellees.
Gary Thimsen, Woods, Fuller, Shultz & Smith, P.C., Sioux Falls, for defendant and appellant.
Art and Verla Strain (The Strains), as special administrators of the estate of their son Tyler Strain (Tyler), deceased, commenced a wrongful death and survivorship action against Appellant, Harry Christians (Christians). The matter came on for trial before a jury. The jury returned a verdict in the Strains' favor in the amount of $75,000. Christians appeals. We affirm.
Tyler was fourteen years of age. He had lived on a farm most of his life. At the time of Tyler's death, the Strains lived on a farm approximately one-quarter of a mile from Christians' farm. Tyler worked for his father on the family farm, and, in 1986, began to work for Christians at his farm after school. Tyler did not operate Christians' two big tractors. During his second year with Christians, Tyler started stacking hay bails and used small tractors and their attachments.
In the fall of 1987, when Tyler was thirteen years old, Mr. Strain began teaching him to use and operate the family's tractors, including a 1974 International model 1066 tractor. 1 After Tyler had begun his third year of employment with Christians, in April 1988, he was allowed to operate Christians' 1973 International model 1066 tractor in the farm field, stacking hay and pulling implements. The 1973 model 1066 was essentially the same as the Strains' 1974 model 1066 tractor. Both the Strains' and Christians' tractors were more powerful than "twenty PTO horsepower." Christians allowed Tyler to operate his tractor alone.
Tyler's parents knew at the time Tyler was operating Christians' tractor and did not object. Mr. Strain testified he had helped Christians in 1986 and had driven Christians' tractor. He noted the steering on the tractor was loose and Christians' tractor was difficult, if running at a high speed, to "keep ... between the ditches."
Christians requested Tyler take a tractor operation safety course prior to his third year of employment with Christians. Completion of such a course permits employers to employ fourteen to sixteen-year-olds in an occupation involving such activities without violating the Fair Labor Standards Act (F.L.S.A.), discussed more fully in part I. On June 7-8, 1988, the Brookings County Extension Office put on a twenty-hour "Hazardous Occupation Safety Course" pursuant to part 570 of the Code of Federal Regulations, 2 which will be discussed in more detail in part I.
Tyler successfully completed two written tests and a driving test during this program. On June 8, 1988, the county extension agent in charge of the safety program issued to Tyler a certificate certifying he had successfully completed the training program. Tyler was then certified to operate a tractor with over "twenty PTO horsepower," and to "[connect or disconnect] an implement or any of its parts to or from such a tractor." 3 Mr. Strain acknowledged he and his wife were both aware Tyler had taken and successfully completed a tractor and farm machinery safety course at the request of Christians.
On the morning of June 11, 1988, Tyler went to work at Christians' farm. He was to stack hay with Christians' tractor; consequently, it was equipped with a bucket loader and a double bale fork. Tyler drove Christians' tractor to the repair shop of Lyle Krueger (a self-employed welder and repairman) for the purpose of welding a hair-line crack on the reservoir of the loader. In response to a question by Krueger, Tyler stated he was having no problems with the tractor in its operation. At morning's end, Tyler, Christians, and another farm hand went to town to have lunch. After lunch, Christians took Tyler to where the tractor was parked and told him to drive it back to Christians' home. Christians then went home to take a nap. Shortly thereafter, the tractor was found upside down and on fire. It had rolled over, smashing the cab with Tyler inside. Tyler was killed.
The investigating officer stated it appeared the tractor had eased off the gravel at a very slight angle over a distance of approximately 100 to 125 feet. It appeared Tyler jerked the wheel of the tractor to get back onto the roadway surface. The tractor then slipped sideways and overturned.
The Strains commenced a wrongful death and survivorship action against Christians, alleging Christians had employed Tyler in an occupation dangerous to his life and health as prohibited by SDCL 60-12-3 (1978) (). 4 Christians denied he had employed Tyler in a dangerous occupation. In the alternative, he asserted Tyler's employment was with the knowledge and consent of his parents, and Tyler's own negligence proximately caused his death.
During trial, the court ruled that neither party could present evidence pertaining to the contributory negligence of Tyler, or of Mr. or Mrs. Strain. The trial court refused to instruct the jury on the issues of contributory negligence of Tyler or of the Strains. Christians objected. At the end of the plaintiffs' case, Christians' counsel moved for a directed verdict arguing first, federal law preempted imposing civil liability against Christians under SDCL 60-12-3 and second, there was insufficient evidence for the jury to find Tyler was employed in an occupation hazardous to life or health. The trial court denied that motion. The jury returned a $75,000 verdict in favor of the Strains. The trial court entered judgment against Christians for that amount.
Christians appeals raising four issues:
I. Whether SDCL 60-12-3 has been preempted by the F.L.S.A. and regulations promulgated pursuant thereto.
II. Whether the trial court properly refused to admit testimony regarding the contributory negligence of Tyler and to give an instruction on the issue of contributory negligence of Tyler.
III. Whether the trial court properly refused to admit testimony regarding the parents' knowledge of and consent to Tyler's employment and to give an instruction on the defense of contributory negligence of the parents.
IV. Whether the jury verdict was against the law, and whether the $75,000 award was supported by sufficient evidence.
We will discuss these items seriatim.
Sections 3 and 12 of F.L.S.A. are substantively similar to SDCL 60-12-3. Section 12 5 prohibits employing "oppressive child labor" in commerce, and Section 3 6 provides employment of a child under the age of sixteen by any non-parent constitutes "oppressive child labor" unless the Secretary of Labor provides by regulation or by order that the employment of children between fourteen and sixteen years of age in occupations other than mining or manufacturing does not constitute "oppressive child labor." 29 U.S.C. Secs. 203(l ), 212(c) (1988). An employer violating F.L.S.A. is subject to substantial criminal and civil penalties. 29 U.S.C. Secs. 215-217 (1988). 7
Subpart E-1 of Chapter 5 of Title 29 of the Code of Federal Regulations addresses "occupations in agriculture particularly hazardous for the employment of children below the age of 16." According to the Secretary of Labor, "[o]perating a tractor of over 20 PTO horsepower, or connecting or disconnecting an implement or any of its parts to or from such a tractor[ ]" is "particularly hazardous employment [for] children below the age of sixteen." 29 C.F.R. Sec. 570.71(a)(1) (1990). Thus, employment of a child under sixteen years of age by a non-parent in such an occupation would normally constitute "oppressive child labor."
Pertinent exemptions do exist to the general rule stated above. Those exemptions are contained in 29 C.F.R. Sec. 570.72 (1990):
(b) Federal Extension Service. The findings and declaration of fact in [section] 570.71(a) shall not apply to the employment of a child under 16 years of age in those occupations in which he has successfully completed one or more training programs described in paragraph (b)(1), (2), or (3) of this section provided he has been instructed by his employer on safe and proper operation of the specific equipment he is to use; is continuously and closely supervised by the employer where feasible; or, where not feasible, ... his safety is checked by the employer at least at midmorning, noon, and mid-afternoon.
Subparagraphs (1)-(3) of 29 CFR Sec. 570.72(b) describe various training programs, all of which require an employee or potential employee (1) to be fourteen years of age or older; (2) to complete a training program on safe operation of machinery; (3) to successfully complete a written examination covering safety; and (4) to demonstrate his or her ability to operate machinery safely. In addition, the regulation requires the employer to keep on file a certificate stating the child has completed all the required training and testing.
Where a child obtains certification pursuant to such a program, as Tyler did, an employer may hire him to operate tractors of greater than twenty PTO horsepower or other machinery without subjecting himself to criminal and civil penalties under F.L.S.A. Christians contends this statutory and regulatory scheme preempts South Dakota's child labor statute. We disagree.
We have held whether employment is dangerous to the child's "life, health or morals" is a question of fact for the jury. Koenekamp v. Picasso, 64 S.D. 567, 570, 269 N.W. 74, 77 (1936). Accord Dillman v. Madsen, 688 F.Supp. 1402, 1405 (D.S.D.1988). Section 2 of F.L.S.A....
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