VerBouwens v. Hamm Wood Products, No. 13941

CourtSouth Dakota Supreme Court
Writing for the CourtHENDERSON; FOSHEIM; WOLLMAN; WOLLMAN; Bogue
Citation334 N.W.2d 874
PartiesMichael VerBOUWENS, Plaintiff and Appellant, v. HAMM WOOD PRODUCTS, Defendant and Appellee, and The Maryland Casualty Company, Baltimore, Maryland, Defendant. . Considered on Briefs
Docket NumberNo. 13941
Decision Date20 April 1983

Page 874

334 N.W.2d 874
Michael VerBOUWENS, Plaintiff and Appellant,
v.
HAMM WOOD PRODUCTS, Defendant and Appellee,
and
The Maryland Casualty Company, Baltimore, Maryland, Defendant.
No. 13941.
Supreme Court of South Dakota.
Considered on Briefs April 20, 1983.
Decided June 15, 1983.

Page 875

Wayne F. Gilbert of Lehnert & Gilbert, Rapid City, for plaintiff and appellant.

Franklin J. Wallahan, Rapid City, for defendant and appellee Hamm Wood Products.

HENDERSON, Justice.

ACTION

On May 14, 1982, appellant VerBouwens filed a complaint against appellee Hamm Wood Products and The Maryland Casualty Company for injuries sustained in an industrial mishap. Discovery was conducted and summary judgment dismissing appellant's claim was entered on July 26, 1982. Appellant filed a notice of appeal to this Court on September 27, 1982. Maryland Casualty Company filed a motion to affirm, and on January 13, 1983, the motion was granted dismissing Maryland Casualty Company from this action. We affirm.

FACTS

On February 17, 1981, appellee Hamm Wood Products hired appellant VerBouwens as a saw operator in appellee's sawmill. Thereafter, on February 19, 1981, appellant VerBouwens sustained personal injuries while operating appellee's saw. Appellant VerBouwens filed a claim under our Worker's Compensation Act and received, as of the date of the complaint herein, $37,430.40 in hospitalization and disability payments.

Appellant VerBouwens brought this action against appellee Hamm Wood Products because the saw in question, as designed and constructed by appellee for use in its sawmill, failed to have proper safety equipment. Appellant VerBouwens' complaint avers: (1) appellee committed an intentional act as it knew the saw was inherently dangerous; and (2) appellee was liable to appellant in its role as manufacturer of the saw.

ISSUES

I.

THE CIRCUIT COURT GRANTED SUMMARY JUDGMENT IN FAVOR OF THE EMPLOYER AND AGAINST APPELLANT ON THIS INTENTIONAL TORT CLAIM. WE UPHOLD THE TRIAL COURT.

II.

IS AN EMPLOYER, WHO ALSO DESIGNS AND MANUFACTURES A PIECE OF EQUIPMENT FOR USE IN ITS BUSINESS, LIABLE TO AN EMPLOYEE ABOVE AND BEYOND ITS STATUS AS AN EMPLOYER? REFUSING TO RECOGNIZE THE DUAL CAPACITY DOCTRINE, WE HOLD THAT IT IS NOT.

DECISION

I.

In our decision herein, we must heed this state's Worker's Compensation Law. Our worker's compensation statutes feature an exclusivity of remedy provision in SDCL 62-3-2:

The rights and remedies herein granted to an employee subject to this title, on account of personal injury or death arising out of and in the course of employment, shall exclude all other rights and remedies of such employee, his personal representatives, dependents, or next of kin, on account of such injury or death against his employer or any employee, partner, officer or director of such employer, except rights and remedies arising from intentional tort. (Emphasis supplied.)

Therefore, appellant VerBouwens brought an action on a theory of intentional tort. Appellant VerBouwens omits any reference as to which intentional tort appellee Hamm Wood Products committed, opting instead to simply plead that appellees' knowledge of the saw's dangerous condition was willful, wanton, and reckless conduct which amounted to an intentional act. Appellee asserts our tort standard of intent is the same standard as used in construing will provisions.

Page 876

Willful and wanton misconduct is something more than ordinary negligence but less than deliberate or intentional conduct. Granflaten v. Rohde, 66 S.D. 335, 283 N.W. 153 (1938). Conduct is gross, willful, wanton, or reckless when a person acts or fails to act, with a conscious realization that injury is a probable, as distinguished from a possible (ordinary negligence), result of such conduct. Granflaten, 283 N.W. 153. Contradistinguished, intentional tortious conduct is when an ordinary, reasonable, prudent person would believe an injury was substantially certain to result from his conduct. Spivey v. Battaglia, 258 So.2d 815 (Fla.1972). To establish intentional conduct, more than the knowledge and appreciation of risk is necessary; the known danger must cease to become only a foreseeable risk which an ordinary, reasonable, prudent person would avoid (ordinary negligence), and become a substantial certainty. ...

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38 practice notes
  • Woodson v. Rowland, No. 584A88
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • 14 Agosto 1991
    ...(1984); Blankenship v. Cincinnati Milacron Chemicals, Inc., 69 Ohio St.2d 608, 433 N.E.2d 572 (1982); VerBouwens v. Hamm Wood Products, 334 N.W.2d 874 It is true that some of the cases adopting the willful and wanton misconduct or substantial certainty standard have been modified by statute......
  • Suburban Hospital v. Kirson, No. 2
    • United States
    • Court of Appeals of Maryland
    • 8 Diciembre 2000
    ...North Dakota Workmen's Compensation Act does not permit the application of the dual capacity theory"); VerBouwens v. Hamm Wood Prods., 334 N.W.2d 874, 876 (S.D.1983) (refusing to apply dual capacity theory against employer as the designer and manufacturer of an allegedly dangerous saw); Hun......
  • Beauchamp v. Dow Chemical Co., Docket No. 75578
    • United States
    • Supreme Court of Michigan
    • 23 Diciembre 1986
    ...Shell Chemical Co., 610 F.2d 328, 332 (CA 5, 1980); Bazley v. Tortorich, 397 So.2d 475, 482 (La.1981); VerBouwens v. Hamm Wood Products, 334 N.W.2d 874, 876 (S.D.1983); Mingachos v. CBS, Inc., n. 44 supra at 376; Austin v. Johns-Manville Sales Corp., n. 44 supra at 55 Jones v. VIP Dev. Co.,......
  • Martel v. Connor Contracting, Inc., No. 17-342
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 12 Octubre 2018
    ...St.3d 115, 570 N.E.2d 1108, 1112 (1991) ; Parret v. UNICCO Serv. Co., 2005 OK 54, ¶ 25, 127 P.3d 572 ; VerBouwens v. Hamm Wood Prods., 334 N.W.2d 874, 875-76 (S.D. 1983) ; Reed Tool Co. v. Copelin, 689 S.W.2d 404, 407 (Tex. 1985).9 Some lower New York courts have also recognized this modern......
  • Request a trial to view additional results
38 cases
  • Woodson v. Rowland, No. 584A88
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • 14 Agosto 1991
    ...(1984); Blankenship v. Cincinnati Milacron Chemicals, Inc., 69 Ohio St.2d 608, 433 N.E.2d 572 (1982); VerBouwens v. Hamm Wood Products, 334 N.W.2d 874 It is true that some of the cases adopting the willful and wanton misconduct or substantial certainty standard have been modified by statute......
  • Suburban Hospital v. Kirson, No. 2
    • United States
    • Court of Appeals of Maryland
    • 8 Diciembre 2000
    ...North Dakota Workmen's Compensation Act does not permit the application of the dual capacity theory"); VerBouwens v. Hamm Wood Prods., 334 N.W.2d 874, 876 (S.D.1983) (refusing to apply dual capacity theory against employer as the designer and manufacturer of an allegedly dangerous saw); Hun......
  • Beauchamp v. Dow Chemical Co., Docket No. 75578
    • United States
    • Supreme Court of Michigan
    • 23 Diciembre 1986
    ...Shell Chemical Co., 610 F.2d 328, 332 (CA 5, 1980); Bazley v. Tortorich, 397 So.2d 475, 482 (La.1981); VerBouwens v. Hamm Wood Products, 334 N.W.2d 874, 876 (S.D.1983); Mingachos v. CBS, Inc., n. 44 supra at 376; Austin v. Johns-Manville Sales Corp., n. 44 supra at 55 Jones v. VIP Dev. Co.,......
  • Martel v. Connor Contracting, Inc., No. 17-342
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 12 Octubre 2018
    ...St.3d 115, 570 N.E.2d 1108, 1112 (1991) ; Parret v. UNICCO Serv. Co., 2005 OK 54, ¶ 25, 127 P.3d 572 ; VerBouwens v. Hamm Wood Prods., 334 N.W.2d 874, 875-76 (S.D. 1983) ; Reed Tool Co. v. Copelin, 689 S.W.2d 404, 407 (Tex. 1985).9 Some lower New York courts have also recognized this modern......
  • Request a trial to view additional results

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