Fryer v. Kranz

2000 SD 125, 616 N.W.2d 102, 2000 S.D. LEXIS 128

• Court: South Dakota Supreme Court
• Decided: September 6, 2000
• Docket: None
• Status: Published

Opinions

MILLER, Chief Justice (on reassignment).

[¶ 1.] In this intermediate appeal, because the employee has shown there is no genuine issue of material fact as to whether employer’s conduct was intentional in order to except it from workers’ compensation coverage, we hold that the circuit court improperly denied the employer’s motion for summary judgment.

FACTS

[¶ 2.] In 1996, Clint Kranz was remodeling a building in Watertown, South Dakota, to convert it into a casino. He employed workers, including Kathy Fryer, to help with the project. As part of the cleanup, he wanted to remove grout and other residue from the ceramic tile floors. Cleaning the tile proved difficult, so he purchased muriatic acid for the job. Muri-atic acid, also called hydrochloric acid, is a strong, highly corrosive chemical. The product label warned that for proper use, the acid should be diluted, the vapors are harmful when the acid is used improperly, and the product is for exterior use only. These warnings were not readable when Fryer used the chemical because the label was covered with “cement stuff.”

[¶ 3.] To show Fryer how to clean the tile, Kranz poured the undiluted muriatic acid on the floor, saying “This is how we use it.” Kranz said he had used the product several times. He did not warn Fryer about any dangers, although he did say the acid is “corrosive and smells really bad,” and “try not to breathe it.” Fryer was told to wear protective gloves. Also, a small oscillating fan was positioned nearby to circulate the air, with more fans set up in the doorways to ventilate the building.

[¶ 4.] Over the course of three to four weeks, Fryer regularly cleaned with the acid. It produced a “green cloud” when poured on the floor. The vapor made her feel nauseated, lightheaded, and she coughed when she breathed it. She thought, nonetheless, that the fumes were no more toxic than those from products like fingernail polish remover or “whiteout.” Yet she “complained a lot about it.” She told Kranz, “It makes me feel weird. It makes me light-headed. I hate this shit.” Kranz responded, “Well, when that happens, then you need to take a break and you need to go get some air.” He had her continue to use the product.

[¶ 5.] On November 12, 1996, Fryer used the muriatic acid to clean a very small room where there was no ventilation. The fumes overcame her. Lightheaded and nauseated, she could not continue. She ran across the alley to a bathroom in another building and vomited. When Kranz knocked on the door, Fryer assured him that she “was fine.” She did not immediately seek medical attention, but as the day progressed, she suffered chest pains, breathing problems, and her skin “hurt real bad.” Later in the day, she was admitted to the hospital where she remained for four days. She continues to suffer health problems.

[¶ 6.] Fryer brought a personal injury action against Kranz in circuit court, alleging:

[Kranz] had experience with muriatic acid and was aware of its dangerous propensities, but nevertheless, intentionally directed [Fryer] to utilize the same in the small, unventilated area even after she had advised him that use of the product in larger ventilated areas had caused her dizziness, nausea and headaches.

* * *

[Kranz] intentionally caused the plaintiff to be exposed to the dangerous situation knowing that it was probable that serious injury would result.¹

She sought damages for medical expenses, emotional distress, pain and suffering, and reduced earning capacity. Kranz moved for summary judgment. The court denied the motion, concluding that there were material issues of fact on whether Fryer committed an intentional tort. We granted intermediate appeal.

STANDARD OF REVIEW

[¶ 7.] Our review of a trial court’s granting of summary judgment is well settled. See Wilson v. Great N. Ry. Co., 83 S.D. 207, 157 N.W.2d 19 (1968); Millard v. City of Sioux Falls, 1999 SD 18, ¶ 8, 589 N.W.2d 217, 218; Walther v. KPKA Meadowlands Ltd. Partnership, 1998 SD 78, ¶ 14, 581 N.W.2d 527, 531; Specialty Mills, Inc., v. Citizens State Bank, 1997 SD 7, ¶ 7, 558 N.W.2d 617, 620.

In reviewing a grant or a denial of summary judgment under SDCL 15 — 6—56(c), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of summary judgment is proper.

Kaiser v. North River Ins. Co., 2000 SD 15, ¶ 6, 605 N.W.2d 193, 195; Schipke v. Grad, 1997 SD 38, ¶ 5, 562 N.W.2d 109, 110; Walz v. Fireman’s Fund Ins. Co., 1996 SD 135, ¶ 6, 556 N.W.2d 68, 69; Harn v. Continental Lumber Co., 506 N.W.2d 91, 94 (S.D.1993).

DECISION

[¶ 8.] Workers’ compensation covers employment-related accidental injury of every nature. No matter what form employer conduct takes, be it careless, grossly negligent, reckless, or wanton, if it is not a “conscious and deliberate intent directed to the purpose of inflicting an injury,” workers’ compensation remains the exclusive remedy. 6 Larson’s Workers’ Compensation Law (MB) § 103.03 at 103-6 (November 1999). Even when an employer’s acts entail “knowingly permitting a hazardous work condition to exist, knowingly ordering a claimant to perform an extremely dangerous job, [or] wilfully failing to furnish a safe place to work,” still they come within the ambit of workers’ compensation. Id. at 103-6 (November 1999) & 103-7 (May 2000).

[¶ 9.] In the workers’ compensation scheme, exclusivity serves two important values: (1) it maintains “the balance of sacrifices between employer and employee in the substitution of no-fault liability for tort liability,” and (2) it minimizes “litigation, even litigation of undoubted merit.” Larson, supra, § 103.05[6] at 103-44 (May 2000). Exclusiveness imparts efficiency to the workers’ compensation system. “Every presumption is on the side of avoiding superimposing the complexities and uncertainties of tort litigation on the compensation process.” Id.

[¶ 10.] When an employer intends to commit injury, as opposed to negligently or recklessly committing it, then the ratio'nale for embracing workers’ compensation disappears. Accordingly, when an employer intentionally causes a work-related injury, workers’ compensation law allows an exception to the exclusive remedies for employee work-related injuries:

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.

SDCL 62-3-2.

[¶ 11.] Only injuries “intentionally inflicted by the employer” take the matter outside the exclusivity of workers’ compensation coverage. Harn v. Continental Lumber Co., 506 N.W.2d 91, 95 (S.D.1993). “The worker must also allege facts that plausibly demonstrate an actual intent by the employer to injure or a substantial certainty that injury will be the inevitable outcome of employer’s conduct.” Jensen v. Sport Bowl, Inc., 469 N.W.2d 370, 372 (S.D.1991) (citations omitted). Even when an “injury is a probable ... result, [workers’] compensation is still the exclusive remedy.” Id. (emphasis in original). The intentional tort exception is narrowly construed.² Benson v. Goble, 1999 SD 38, ¶ 19, 593 N.W.2d 402, 406 (citations omitted).

[¶ 12.] More than knowledge or appreciation of risk is required to establish intentional conduct. “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.” Harn, 506 N.W.2d at 95 (citing Brazones v. Prothe, 489 N.W.2d 900, 906 (S.D.1992); Jensen, 469 N.W.2d at 372; Ver-Bouwens v. Hamm Wood Prod., 334 N.W.2d 874, 876 (S.D.1983)).

[¶ 13.] The statement of our law regarding the substantial certainty standard was summarized in Harn:

The substantial certainty standard requires that the employer had actual knowledge of the dangerous condition and that the employer still required the employee to perform. Substantial certainty of injury to the employee should be equated with virtual certainty to be considered an intentional tort.... If an employee worked under such conditions where the employer actually knew of the danger and that injury was substantially certain (virtually certain) to occur, and such injury did occur, the employer should not escape civil liability for placing the employee in such a dangerous position. That is the type of conduct the intentional tort exception deters.

506 N.W.2d at 100.

[¶ 14.] Fryer asserts that Kranz knew she would be injured. When she complained to him about the fumes making her feel lightheaded, he replied: “Well, when that happens, then you need to take a break and you need to go get some air.” Fryer stresses that Kranz used the word “when” rather than “if.” To Fryer, it is notable that, although Kranz had joined Fryer in working with the acid before she complained, he sent her back to the small room alone. This, she argues, shows that her adverse reaction was inevitable and that Kranz knew it. She claims Kranz knew because she had been harmed previously, though not as seriously, by the fumes when they made her light-headed and nauseated.

[¶ 15.] “The intentional tort exception to workmen’s compensation is fact specific.” Harn, 506 N.W.2d at 99. A comparison of the present facts to the factual bases of our prior cases is necessary to appreciate the allegations proffered by Fryer. Our cases thus far have described actions that do not constitute an intentional tort. This fact results from our narrow construction of the intentional tort exception. Id. at 95.

[¶ 16.] Most recently, in Harn, work was being done in an old sawmill because a new sawmill was having technical difficulties. During this work transfer, no one bothered to check whether the anti-kickback device was in place, and Harn was injured when a piece of lumber flew back out of the machine and struck him. There we held that disengaging the safety device may have made the injury probable or highly probable, but that was still not deemed to be substantially certain.

[¶ 17.] In Brazones, the plaintiffs alleged that “defendants sent the crew to clean the [petroleum] tank without proper equipment for the job; without sufficient training and instruction as to cleaning, operation of equipment and safety; and allowing potentially unsafe conditions to be present.” 489 N.W.2d at 907. Although these allegations may have amounted to knowledge of a probable risk of injury to plaintiffs on defendants’ part, we held them insufficient to show intent to injure.

[¶ 18.] In Jensen, the plaintiff was an “inexperienced, inadequately trained, 14-year-old boy ordered by his employer, without any warning of the danger, to perform a maintenance task which the employer knew from personal experience to be risky.” 469 N.W.2d at 372. Even so, we did not deem the employer’s actions to be intentionally tortious conduct.

[¶ 19.] Finally, in VerBouwens, the plaintiff was injured by a saw designed and constructed by his employer, which lacked proper safety equipment. 334 N.W.2d at 875. We hypothesized that the defendant may have known of a probable risk of injury from its saw design, yet we were unable to say that he was substantially certain injury would result.

[¶ 20.] Comparing the facts in pri- or cases to the instant action, Kranz’s conduct was no more egregious than the other employers. His supervision of Fryer may have been negligent, reckless, or even wanton, but there is simply no showing that he intended to injure her.

[¶ 21.] Even when viewed in a light most favorable to Fryer, the evidence at most proves that Kranz knew the acid vapor irritated her. Fryer contends that muriatic acid, “when used in a small, unventilated space, ... simply can not be used without causing illness.” But this was the first time the acid had been used by Kranz or any of his employees in a small, unventilated space; she has not shown in any manner that Kranz knew her injuries were virtually certain to occur.

[¶ 22.] Based on Fryer’s prior experiences with the acid, Kranz knew that it caused her to become light-headed and nauseous. However, that information alone does not automatically make it virtually certain that she would be overcome by the fumes on this occasion. Indeed, the fact that she suffered no severe adverse effects on prior occasions lends credence to Kranz’s position that he was not certain it would cause injury.

[¶ 23.] Moreover, the notation that Kranz personally suffered ill effects from the acid supports the opposite idea that he did not know how injurious the fumes could be. Had he purposely intended to injure his employees by exposing them to the noxious fumes, it is simply not rational to believe that he would have also knowingly and deliberately exposed himself to the fumes by helping his employees clean the grout. Nor is it any more rational to assume that he knowingly and deliberately inflicted upon himself the medical claims, damages, time setbacks, and lawsuits that his employees’ exposure to the acid would entail. Larson, supra, § 103.05[6] at 103-41 (May 2000).

[¶ 24.] Under these circumstances, perhaps Kranz should have known that the fumes might cause injury, or even that they would probably or likely cause injury. However, that level of knowledge was still insufficient to show intent to injure under our standard. Harn, 506 N.W.2d at 95; Brazones, 489 N.W.2d at 905; Jensen, 469 N.W.2d at 372; VerBouwens, 334 N.W.2d at 876. Kranz showed that no genuine issue of material fact existed as to his intent. To overcome Kranz’s, motion for summary judgment, Fryer needed to show that Kranz knew with virtual certainty that such exposure would cause illness, yet still required her to work. Harn, 506 N.W.2d at 100. This she failed to do.

[¶ 25.] As we stated in Brazones:

These allegations may amount to knowledge of a probable risk of injury to plaintiffs on defendants’ part. However, these facts do not come within South Dakota’s intentional tort exception to worker’s compensation coverage as a matter of law. We are unable to say that defendants were substantially certain that plaintiffs’ injuries would be the inevitable outcome of defendants’ conduct, much less to say that defendants actually intended plaintiffs’ injuries.

489 N.W.2d at 907. Given both Fryer’s and Kranz’s prior experience working with the acid with no more than irritating side effects, her being overwhelmed by the fumes was not a matter of when it would happen (a certainty), it was a question of if it would (a probability).

[¶ 26.] To decide this case differently would blur the line between cases involving only negligent or reckless conduct and those involving true intent to injure. In VerBouwens, Justice Wollman foresaw the dire results of such an outcome:

If the “intentional tort” exception was expanded as plaintiffs request, the focus would be upon the degree of risk of injury and the state of knowledge of the employer and the employee regarding the dangerous conduct or condition which caused the injury. This result undermines the balance of interests maintained by the worker’s compensation system. First, it would thwart the goal of the system to provide employers relative immunity from liability at law. Second, it would deny many employees the swift and certain compensation they now receive under the system. The system originally required employees to surrender their right to a potentially larger recovery in a common law action for the wilful or reckless misconduct of employers, in return for expeditious recovery under worker’s compensation. Employees disappointed with worker’s compensation recovery would be encouraged to seek additional compensation in a common law action, increasing the role of the courts in resolving ... accident disputes.

334 N.W.2d at 877 (Wollman, J., concurring specially) (quoting Shearer v. Homestake Mining Co., 557 F.Supp. 549, 555 (D.S.D.1983)). Moreover, with an artfully drafted complaint simply alleging that the employer intended to cause bodily harm or death, every employee would arguably be permitted to litigate his workers’ compensation claim as an intentional tort. See, e.g., Handley v. Unarco Indus., Inc., 124 Ill.App.3d 56, 79 Ill.Dec. 457, 463 N.E.2d 1011 (1984) (showing that plaintiffs withstood summary judgment by alleging that defendant intended bodily harm and/or death to plaintiffs, that defendant’s conscious purpose was that asbestos would become trapped in their lungs and bodies).

[¶ 27.] Our warning in Harn bears repeating:

Without demanding and maintaining the strict standard, South Dakota would be following Ohio’s slippery path. Ohio’s substantially certain standard seems to allow actions to go forward which are ordinary negligence actions, i.e., injury is possible, and actions describing wanton or reckless conduct, i.e., injury is probable. That is exactly what workmen’s compensation was designed to avoid. An employee should be allowed to recover from an employer if the employer hits the employee on the head with a board — that is an intentional tort. But “substantially certain” should not be allowed to be so watered down as to allow ordinary negligent conduct or reckless or wanton conduct on the employer’s part to overcome the exclusivity of workmen’s compensation. Every workmen’s compensation case would then become a common-law action.

506 N.W.2d at 99-100. Given the legislature’s considered, deliberate use of the word “intentional” in SDCL 62-3-2, we are hesitant to expand upon the accepted, traditional meaning of that word. VerBouwens, 334 N.W.2d at 877 (Wollman, J., concurring specially). Intent really means intent. Jensen, 469 N.W.2d at 371; Brazones, 489 N.W.2d at 906; Harn, 506 N.W.2d at 95.

[¶28.] Although Kranz’s conduct was clearly negligent, probably reckless and possibly wanton, it does not amount to an intentional act. Therefore, the denial of Kranz’s motion for summary judgment is reversed, and the case is remanded with directions that the trial court enter summary judgment in his favor.

[¶ 29.] AMUNDSON and GILBERTSON, Justices, concur. [¶ 30.] SABERS and KONENKAMP, Justices, dissent.

1 . The allegation that serious injury “was probable” is insufficient by itself to take the matter out of workers’ compensation coverage. But in summary judgment cases we examine the entire record before us, including all the pleadings, depositions, and affidavits. SDCL 15-6-5 6(c).

2 . Justice Konenkamp's dissent discusses a Larson example dealing with cyanide gas fumes. The example comes from the Michigan Supreme Court's discussion of an Illinois criminal case. Beauchamp v. Dow Chemical Co., 427 Mich. 1, 398 N.W.2d 882 (1986). As Justice Konenkamp points out, the Illinois case is a manslaughter case (not a workers’ compensation case). Larson also specifically notes the case did not "involve the meaning of 'intentional injury' in a compensation setting,” which is the issue this Court faces in the present suit. Larson, supra, § 103.05[6] at 103-41. Putting these two points aside, the Michigan Supreme Court stated in its obiter dictum discussion of the facts of the Illinois case "[it] is questionable, however, whether even this outrageous conduct would constitute a 'true intentional tort.' " Beau-champ, 398 N.W.2d at 893. Although Larson and Justice Konenkamp believe the facts of the Illinois case would constitute intentional conduct by the employer, the facts before this court are much less egregious than the facts underlying the Illinois case. The Illinois defendants never worked with the product they forced the workers to use, they hired workers who could not read English and therefore could not read the warning labels, their business of removing silver was a continually operating business, and they received a warning from an independent inspector "that the operation had outgrown the plant.” Id. at 892-93. In contrast, Kranz did work with the product Fryer used, Kranz did not purposefully conceal the warning labels (although they were obscured inadvertently by "cement” according to Fryer), Kranz did not hire Fryer to continually work with the product all day every day, and Kranz received no warning from an independent inspector concerning any dangerous condition at his work location. Accordingly, this Court reverses the trial court's denial of summary judgment because Kranz did show that no genuine issue of material fact existed as to whether he intended to harm or knew with virtual certainty that harm would result from Fryer's working with muriatic acid.