Schott v. S.D. Wheat Growers ( 2017 )


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  • #28095-r-SLZ
    
    2017 S.D. 91
    IN THE SUPREME COURT
    OF THE
    STATE OF SOUTH DAKOTA
    ****
    DALLAS SCHOTT and CORSON
    COUNTY FEEDERS, INC.,                          Plaintiffs and Appellants,
    v.
    SOUTH DAKOTA WHEAT
    GROWERS ASSOCIATION,                           Defendant and Appellee.
    ****
    APPEAL FROM THE CIRCUIT COURT OF
    THE FOURTH JUDICIAL CIRCUIT
    CORSON COUNTY, SOUTH DAKOTA
    ****
    THE HONORABLE MICHAEL W. DAY
    Judge
    ****
    JUSTIN M. SCOTT
    MELISSA E. NEVILLE of
    Bantz, Gosch & Cremer, LLC
    Aberdeen, South Dakota                         Attorneys for plaintiffs
    and appellants.
    MICHAEL L. LUCE of
    Lynn, Jackson, Shultz &
    Lebrun, PC
    Sioux Falls, South Dakota                      Attorneys for defendant
    and appellee.
    ****
    ARGUED OCTOBER 4, 2017
    OPINION FILED 12/27/17
    #28095
    ZINTER, Justice
    [¶1.]         Dallas Schott, the owner of Corson County Feeders, Inc., sued South
    Dakota Wheat Growers Association (SDWG), alleging its agronomist incorrectly
    prescribed a herbicide that Schott sprayed on his 2014 sunflower crop. The
    herbicide was not labeled for use on all of Schott’s sunflowers, and 1,200 acres were
    destroyed. The circuit court granted SDWG summary judgment, ruling that Schott
    assumed the risk. We reverse and remand because there are disputed issues of fact
    concerning Schott’s knowledge and appreciation of the risk.
    Facts and Procedural History 1
    [¶2.]         SDWG provides a variety of agronomy services for growers. The
    services include recommending chemicals, seed varieties, and fertilizers that SDWG
    sells. The services also include direction on what herbicides to use on what crops.
    To properly provide those services, SDWG performs field scouting and soil testing.
    It also maintains field lists and aerial maps of its customers’ crops.
    [¶3.]         Schott farms 12,000 acres of land in north-central South Dakota. In
    2008 or 2009, he started growing sunflowers with advice from two SDWG
    employees: Craig Maher, the SDWG agronomy manager, and Jason Fees, the
    SDWG agronomist. Each year SDWG provided Schott with a large binder that
    contained the plans for what he would plant in each field. The plans were based on
    soil testing and Schott’s previous year’s crop. The plans also included SDWG’s
    recommendation for herbicide applications on each field. Schott testified in his
    1.      Because Schott’s complaint was dismissed by summary judgment, the facts
    stated herein are generally Schott’s version.
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    deposition that over the years, he had asked SDWG agronomists for direction on
    what herbicides to use on his crops and that he followed those directions “a hundred
    percent.”
    [¶4.]        The dispute in this case arose because of a mistaken use of a herbicide
    called “Beyond” on Schott’s “non-Clearfield” variety of sunflowers. Confection, con-
    oil, and oil variety sunflowers are raised in Schott’s area, and each variety is sold in
    both Clearfield and non-Clearfield types. The Clearfield and non-Clearfield
    varieties are not distinguishable when growing, but the proper herbicide to be used
    is dependent on the variety. “TapOut” is a herbicide designed for use on non-
    Clearfield sunflowers. The herbicide Beyond is specifically designated for Clearfield
    sunflowers because that variety has been genetically modified to tolerate Beyond.
    However, non-Clearfield sunflowers do not tolerate Beyond. SDWG sells both of
    these sunflower varieties and herbicides at its facility.
    [¶5.]        When Schott first started growing sunflowers, he only grew the non-
    Clearfield, oil seed variety. In 2012, Fees introduced Schott to Dahlgren & Co., Inc.,
    another seed supplier. Thereafter, Schott began purchasing a mixture of sunflower
    varieties from Dahlgren, but he continued to purchase herbicides from SDWG.
    Although Schott was then purchasing sunflower seed from Dahlgren, Schott
    testified that Fees determined the number of acres that would be planted with each
    sunflower variety. According to Schott, this practice continued from 2012 through
    2014.
    [¶6.]        Following this practice, in December 2013, Fees developed a written
    plan for Schott’s 2014 crop of around 3,200 acres of sunflowers. The plan included
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    ordering both TapOut and Beyond, indicating Fees intended Schott to plant both
    Clearfield and non-Clearfield sunflowers. However, Fees would later claim that the
    plan changed. During discovery, Fees testified that around January 24, 2014,
    Schott told Fees that Schott had changed his plan and was only going to plant the
    Clearfield variety. Schott denied the conversation occurred. He claimed he was
    obligated to plant the Dahlgren-contracted mixture of varieties. Schott also
    testified that he did not know what Clearfield sunflowers were. He insisted that at
    the time of planting and spraying the crop at issue, he neither knew what Clearfield
    sunflowers were nor the difference between the Clearfield and non-Clearfield
    varieties.
    [¶7.]        In any event, Schott ultimately planted the Dahlgren-contracted
    sunflowers (both Clearfield and non-Clearfield varieties), and in June 2014, he
    contacted Fees for a herbicide prescription. Fees prescribed and furnished Beyond
    even though Schott had planted an incompatible, non-Clearfield variety. Schott
    then sprayed his sunflowers with Beyond, which killed 1,200 acres of the non-
    Clearfield variety.
    [¶8.]        Schott subsequently brought this suit against SDWG for negligence,
    breach of contract, and breach of warranty. SDWG moved for summary judgment,
    claiming that Schott assumed the risk and was contributorily negligent. SDWG
    argued that Fees did not tell Schott to spray Beyond on non-Clearfield sunflowers;
    that Schott alone sprayed Beyond and caused the damage; that Schott was a
    licensed spray applicator in the State of South Dakota and was responsible for
    reading the label on the chemicals he sprayed; that Schott admitted he did not read
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    the Beyond label, which indicated it could only be used on the Clearfield variety;
    and that both Schott’s and SDWG’s experts agreed that a reasonable grower should
    know which fields were planted with Clearfield and non-Clearfield sunflowers.
    [¶9.]        Schott resisted summary judgment, claiming that he did not knowingly
    assume the risk. He relied on his sworn testimony that he did not know what
    Clearfield sunflowers were and that he did not know the difference between the
    Clearfield and non-Clearfield varieties. He therefore argued that he did not have
    actual knowledge of the risk. Schott also argued that although SDWG produced
    facts suggesting he should have had knowledge of the risk, those facts were
    evidence of contributory negligence for a jury to consider rather than facts
    establishing assumption of the risk as a matter of law.
    [¶10.]       The circuit court did not reach the question of contributory negligence
    because it granted SDWG summary judgment on assumption of the risk. Relying
    on Schott’s status as a licensed applicator, the court explained:
    So this case is about one thing, which is the Plaintiff, in this
    case, sprayed the non-Clearfield sunflowers with Beyond, which
    was a mistake. He didn’t read the label. As a licensed
    applicator, he’s required to follow the label.
    [¶11.]       Schott appeals, raising three issues. He contends: he did not have
    actual knowledge of the risk; he did not have constructive knowledge of the risk;
    and even as a licensed spray applicator, he should not be charged with knowledge of
    the risk.
    Decision
    [¶12.]       “A person assumes the risk of injury when the person: ‘(1) has actual or
    constructive knowledge of the risk; (2) appreciates its character; and (3) voluntarily
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    accepts the risk, with the time, knowledge, and experience to make an intelligent
    choice.’” Karst v. Shur-Co., 
    2016 S.D. 35
    , ¶ 30, 
    878 N.W.2d 604
    , 617 (quoting Duda
    v. Phatty McGees, Inc., 
    2008 S.D. 115
    , ¶ 13, 
    758 N.W.2d 754
    , 758). “It is only when
    the[se] essential elements are conclusively established that the plaintiff may be
    charged with assumption of the risk as a matter of law.” Mack v. Kranz Farms, Inc.,
    
    1996 S.D. 63
    , ¶ 8, 
    548 N.W.2d 812
    , 814. Therefore, a defendant’s “failure to
    establish any of these elements will preclude summary judgment.” Ray v. Downes,
    
    1998 S.D. 40
    , ¶ 11, 
    576 N.W.2d 896
    , 898. 2
    [¶13.]         As just noted, both “knowledge and appreciation of a particular risk”
    are essential elements of this defense. Thomas v. St. Mary’s Roman Catholic
    Church, 
    283 N.W.2d 254
    , 260 (S.D. 1979); accord Bartlett v. Gregg, 
    77 S.D. 406
    , 413,
    
    92 N.W.2d 654
    , 658 (1958). These elements require “knowledge of the danger and
    intelligent acquiescence in it.” Bartlett, 77 S.D. at 413, 
    92 N.W.2d at 658
    . Plaintiffs
    “must not only know of the facts [that] create the danger, but they must
    comprehend and appreciate the danger itself.” Duda, 
    2008 S.D. 115
    , ¶ 12, 
    758 N.W.2d at 758
     (quoting W. Page Keeton et al., Prosser and Keeton on the Law of
    Torts § 68, at 487 (5th ed. 1984)). “The standard to be applied is a subjective one, of
    2.       “Summary judgment may be granted ‘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 a judgment as a matter of law.’” Ivey &
    Kornmann v. Welk, 
    2017 S.D. 42
    , ¶ 8, 
    898 N.W.2d 461
    , 463 (quoting SDCL
    15-6-56(c)). When reviewing a grant of summary judgment, “[t]he evidence
    must be viewed most favorably to the nonmoving party and reasonable
    doubts should be resolved against the moving party.” 
    Id.
     “We review a
    circuit court’s entry of summary judgment under the de novo standard of
    review.” Heitmann v. Am. Family Mut. Ins. Co., 
    2016 S.D. 51
    , ¶ 8, 
    883 N.W.2d 506
    , 508.
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    what the particular plaintiff in fact sees, knows, understands and appreciates.” 
    Id.
    (quoting Restatement (Second) of Torts § 496D cmt. c (Am. Law. Inst. 1965)).
    “Plaintiffs cannot assume risks of activities or conditions of which they are
    ignorant.” Id. Thus, “[i]f by reason of age, or lack of information, experience,
    intelligence, or judgment, the plaintiff does not understand the risk involved in a
    known situation, he will not be taken to assume the risk, although it may still be
    found that his conduct is contributory negligence because it does not conform to the
    community standard of the reasonable man.” Restatement (Second) of Torts § 496D
    cmt. c.
    [¶14.]       On the other hand, the knowledge and appreciation-of-danger
    elements are not purely subjective questions in constructive-knowledge cases. A
    “plaintiff’s own testimony as to what he knew, understood, or appreciated, is not
    necessarily conclusive. There are some risks as to which no adult will be believed if
    he says that he did not know or understand them.” Id. cmt. d. Typical examples of
    this kind of risk include such things as an adult’s knowledge that one can burn from
    fire, drown in water, or fall from heights. Id. Ultimately, whether the knowledge at
    issue is actual or constructive, knowledge of the risk and appreciation of its
    magnitude and unreasonable character are normally questions of fact for the jury.
    Id. cmt. e. They may be resolved by the court only where “reasonable [people] could
    not differ on the question whether [the plaintiff] assumed the risk.” Myers v.
    Lennox Co-op Ass’n, 
    307 N.W.2d 863
    , 864–65 (S.D. 1981).
    [¶15.]       We first consider the issue of actual knowledge. In the proceedings
    below, Schott repeatedly denied having actual knowledge of the difference between
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    Clearfield and non-Clearfield sunflowers. SDWG argues Schott had actual
    knowledge because he successfully planted and sprayed both Clearfield and non-
    Clearfield varieties in previous years. But there is no dispute that these varieties
    are not distinguishable when growing, and Schott’s experience from prior years is
    not evidence that he had actual knowledge of the variety he was spraying at the
    time of this mistake in 2014. Additionally, as Schott points out, the inference from
    this evidence could merely be that he successfully relied on SDWG’s correct
    prescription in prior years. Although Schott’s experience in prior years creates an
    inference of actual knowledge in 2014, at the summary-judgment stage, inferences
    drawn from facts must be viewed most favorably to Schott.
    [¶16.]       SDWG also claims Schott had actual knowledge of the variety he was
    spraying because Schott told Fees that Schott had planted all Clearfield sunflowers.
    However, Schott denies this conversation took place. Moreover, Fees admitted
    during his deposition that he could not recall the exact words Schott used in this
    conversation and that the words used would be important if Schott did not know
    what Clearfield sunflowers were. Reviewing the facts and inferences in the light
    most favorable to Schott, a genuine issue of material fact exists as to whether he
    actually knew the difference between Clearfield and non-Clearfield sunflowers.
    [¶17.]       SDWG, however, also claims that Schott had constructive knowledge of
    the risk. As previously noted, “[b]ecause adults of average intelligence cannot deny
    the obvious, a plaintiff’s testimony on what he or she knew or understood is not
    conclusive.” Duda, 
    2008 S.D. 115
    , ¶ 17, 
    758 N.W.2d at 759
    . Plaintiffs are charged
    with constructive knowledge of some risks that are so plainly observable that the
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    injured party must be presumed to have had actual knowledge and appreciation of
    the risk. Bartlett, 77 S.D. at 411, 
    92 N.W.2d at 657
    . There are few such risks, and
    they are only those “to which no adult will be believed if he says that he did not
    know or understand them.” Restatement (Second) of Torts § 496D cmt. d.
    [¶18.]       SDWG claims Schott had constructive knowledge of the risk because
    the Beyond label indicated that it could only be used on Clearfield sunflowers and
    because both parties’ experts testified that it is the role of the grower to ensure that
    the correct herbicide is applied. However, SDWG’s claim overlooks admissions
    made by its employees. SDWG employees admitted that Schott relied on SDWG for
    what to spray, when to spray, and where to spray. Additionally, in light of Schott’s
    sworn testimony, there is a genuine dispute of material fact as to whether Schott
    actually knew the difference between Clearfield and non-Clearfield sunflowers at
    the time he sprayed them. Therefore, if he was actually unaware of the difference
    and he relied on SDWG for what to spray, the act of reading the Beyond label would
    not have put him on notice of the risk of applying Beyond to non-Clearfield
    sunflowers. Under those facts, Schott could have believed he was spraying Beyond
    on Clearfield sunflowers. Even SDWG’s expert admitted that reading the label
    would not have been an advantage if Schott did not know the kind of sunflowers he
    was spraying.
    [¶19.]       SDWG, however, also points out that Schott was a licensed spray
    applicator, and we acknowledge that the Secretary of Agriculture may take
    disciplinary action against any applicator who applies a herbicide inconsistent with
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    labeling. 3 SDWG argues that licensed applicators are bound to have knowledge of
    the risk at issue in this case. However, the record does not reflect that Schott’s
    licensure required training or knowledge in distinguishing sunflower varieties. We
    also note that the actual variety planted in the affected area was not discernible at
    the time they were sprayed. Treating these facts to be true for purposes of
    summary judgment, we cannot say that “no [licensed applicator] will be believed” if
    he claimed he unknowingly sprayed Beyond on a variety of sunflower that was not
    tolerant of that herbicide. See id. Under these facts, Schott’s status as a licensed
    applicator did not establish constructive knowledge as a matter of law.
    [¶20.]         In sum, Schott’s knowledge of the risk and appreciation of its danger is
    largely dependent on whether (1) he actually knew the difference between
    Clearfield and non-Clearfield sunflower varieties, and (2) whether he knew the
    affected acres had been planted with non-Clearfield sunflowers. Without such
    knowledge, he could not have “comprehend[ed] and appreciate[d] the danger.” See
    Duda, 
    2008 S.D. 115
    , ¶ 12, 
    758 N.W.2d at 758
    . Because there are disputed issues of
    fact concerning these questions, summary judgment should not have been granted.
    This is not one of those “rare cases” appropriate for summary judgment. See e.g.,
    Goepfert v. Filler, 
    1997 S.D. 56
    , ¶ 13, 
    563 N.W.2d 140
    , 144 (affirming summary
    3.       SDCL 38-21-44 provides in relevant part:
    The secretary of agriculture . . . may deny, suspend, revoke, or
    modify any provision of any license or certification issued under
    this chapter, if he finds that the applicant or the holder of a
    license or certification has committed any of the following acts,
    each of which is declared to be a violation of this chapter: . . .
    (2) Made a pesticide recommendation or application
    inconsistent with the labeling . . . .
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    judgment based on finding that plaintiff assumed the risk in jumping from a
    moving vehicle); Myers, 307 N.W.2d at 865 (affirming summary judgment based on
    finding that plaintiff assumed the risk of walking on top of a pile of lumber). Like
    most assumption-of-the-risk cases, the determination whether Schott assumed the
    risk here must be made by a jury. See Stenholtz v. Modica, 
    264 N.W.2d 514
    , 518
    (S.D. 1978).
    [¶21.]         We reverse and remand for further proceedings consistent with this
    opinion. In light of this disposition, we do not consider the parties’ other
    arguments.
    [¶22.]         GILBERTSON, Chief Justice, SEVERSON and KERN, Justices, and
    WILBUR, Retired Justice, concur.
    [¶23.]         JENSEN, Justice, not having been a member of the Court at the time
    this action was assigned, did not participate.
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Document Info

Filed Date: 12/27/2017

Precedential Status: Precedential

Modified Date: 12/28/2017