Kuehl v. Horner (J.W.) Lumber Co.

BASTIAN, Circuit Judge.

[¶ 1.] Rebecca Jean Kuehl (Kuehl) sued Horner Lumber Company, Inc., (Horner) claiming Horner employees negligently loaded or assisted the loading of a trailer with lumber thereby creating an overloaded condition that caused an accident that injured her. The trial court granted summary judgment in favor of Horner and entered a final judgment on the merits. Kuehl appeals. We reverse and remand.

FACTS¹

[¶ 2.] On January 17, 1998, Lance Warne (Warne) assisted his father-in-law, Kevin Schoenfelder (Schoenfelder) in hauling some scrap lumber that Schoenfelder had purchased from Horner. The sale was arranged by Schoenfelder’s father-in-law, Merle Haensel (Haensel). The lumber consisted of odds and ends that appeared to be left over or pulled out from loads because they were crooked, warped or weathered. Schoenfelder purchased trusses, shingles and boards of all dimensions.

[¶ 3.] Schoenfelder made arrangements for one trailer and two hayracks to be used to haul the lumber. Schoenfelder owned the trailer and brought it to Horner from his home in Renner. The trailer was approximately seventeen feet from the tongue to the end and seven feet wide.

[¶ 4.] Schoenfelder determined how the hayracks and the trailer would be loaded. The two hayracks were loaded first. Haensel provided instruction to the Hor-ner Lumber employee who used the forklift to load trusses onto one or both of the hay racks. The trailer was then hooked to Warne’s pickup and loaded with the remaining lumber. Some but not all of the lumber had previously been banded by Horner with metal bands. Some of the bands had been broken and many of the bands were not tight. Schoenfelder did not rely on the metal bands to hold the load together. It is disputed whether Warne and Schoenfelder loaded the lumber on the trailer by hand without assistance or whether they were assisted by Horner employees with or without the forklift,

[¶ 5.] After the trailer was loaded Warne and Schoenfelder secured the load with chains and nylon straps. The three vehicles left Horner at the same time. Warne was' driving his pickup and pulling the loaded trailer. They all proceeded north toward Sehoenfelder’s home in Ren-ner. Warne stopped to put air in the trailer tires allowing the others to proceed ahead.

[¶ 6.] The accident happened around 10:45 a.m. in rural Minnehaha County north of Sioux Falls. Kuehl was southbound on Highway 115 and Warne was northbound. Warne’s pickup and trailer began to fishtail after he hit a small bump. As he was fishtailing Warne saw Kuehl’s vehicle approaching just before the trailer struck her vehicle. After the impact Warne’s pickup and the trailer jackknifed and slid down into the ditch. The load remained intact on the trailer although some of the lumber had broken during the accident.

[¶ 7.] Kuehl suffered severe injuries as a result of the accident. Her claims against Warne and Schoenfelder were settled before this case commenced. They were named as third party defendants in this action for purposes of contribution and the claim was dismissed in the final judgment.

DECISION

[¶ 8.] This Court’s standard of review regarding a trial court’s grant or denial of summary judgment is well established:

Summary judgment is authorized ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.’ We will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided. All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party. The burden is on the moving party to clearly show an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law.

Dakota Pork Industries v. Huron, 2002 SD 3, ¶ 5, 638 N.W.2d 884, 885 (internal citations omitted). Kuehl argues that material issues of fact defeat Horner’s motion for summary judgment. The factual issues are discussed below.

ISSUE

[¶ 9.] Did Horner owe a duty to Kuehl?

[¶ 10.] “The three necessary elements of actionable negligence are: (1) a duty on the part of the defendant; (2) a failure to perform that duty; and (3) an injury to the plaintiff resulting from such a failure.” Stevens v. Wood Sawmill, Inc., 426 N.W.2d 13, 14 (S.D.1988). Before liability may be imposed on the theory of negligence there must be a duty on the part of the defendant to protect a plaintiff from injury. Clausen v. Aberdeen Grain Inspection, 1999 SD 66, 594 N.W.2d 718. While negligence actions are generally not suited for summary judgment, such a result is proper when the duty question is resolved in the defendant’s favor. Bland v. Davison County, 507 N.W.2d 80, 81 (S.D.1993). The existence of such a duty is a question of law subject to de novo review. Id. The concept of duty was recently discussed in Braun v. New Hope Tp., 2002 SD 67, ¶ 9, 646 N.W.2d 737, 740:

For the law to impose a duty, a sufficient relationship must exist between the parties. Foreseeability may also create a duty. Although foreseeability is a question of fact in some contexts, foreseeability in defining the boundaries of a duty is always a question of law. Foreseeability in the ‘duty’ sense is different from foreseeability in fact issues bearing on negligence (breach of duty) and causation, (internal quotations and citations omitted).

[¶ 11.] A duty can be created by statute or common law. Poelstra v. Basin Elec. Power Co-op., 1996 SD 36, ¶ 11, 545 N.W.2d 823, 826. Although Kuehl alleges several violations of state law, the violations do not create a duty on the part of Horner.²

[¶ 12.] To determine whether a common law duty has been created it is necessary to consider Restatement (Second) of Torts 324A (1965):

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

a) his failure to exercise reasonable care increases the risk of such harm, or

b) he has undertaken to perform a duty owed by the other to the third person, or

c) the harm is suffered because of rebanee of the other or the third person upon the undertaking.

[¶ 13.] Some of Kuehl’s evidence that was presented in opposition to Hor-ner’s motion for summary judgment must be rejected. Kuehl submitted the affidavit of a private investigator who had no firsthand knowledge of the accident or the preceding events. Kuehl relies on the reports of six interviews conducted by the investigator and attached to his affidavit. Evidence submitted in affidavits as part of a summary judgment proceeding must be made on personal knowledge and be legally admissible. SDCL 15 — 6—56(e). Parties cannot rely on recitations of hearsay in affidavit form without also laying a foundation for an exception to the hearsay rule. Chem-Age Industries, Inc., v. Glover, 2002 SD 122, 652 N.W.2d 756. The interview reports attached to the investigator’s affidavit are hearsay and cannot be considered.

[¶ 14.] Kuehl also submitted the affidavit of Lewis Dirks, a qualified accident reconstructionist. Dirks’ affidavit complies with SDCL 15 — 6—56(e). Dirks had been hired by an insurance company to investigate the accident and report his findings. He reviewed photographs of the accident scene and observed that the trailer was carrying lumber that had been banded with metal bands. He concluded that because the lumber was banded,, it was not stacked to the front of the trailer but loaded further to the rear.

[¶ 15.] Dirks also concluded that the banded bundles of lumber were of sufficient weight that two men could not lift them and place them onto the trailer. This conclusion is supported by a cursory view of the photographs in the record. Dirks found that there were at least two banded bundles of lumber on the trailer. He estimated that each weighed between four hundred to six hundred pounds. He further concluded that these bundles were “too large, heavy and awkward” to load without the assistance of a forklift or a loader and that the design of the trailer would not prevent a forklift from being used. He determined that the accident was caused by the excessive weight and improper placement of the load on the trailer.

[¶ 16.] For summary judgment purposes we must view the facts in a light favorable to Kuehl and give her the benefit of all reasonable inferences. Dakota Pork Indus., supra. Dirks’ affidavit creates material issues of fact as to Horner’s assistance in loading the trailer for travel on a public highway and Horner’s failure to use reasonable care thereby increasing a foreseeable risk of harm to the public. Restatement (Second) of Torts 324A(a) (1965). Thus, we hold that the existence of genuine issues of material fact preclude summary judgment in this case.

[¶ 17.] We have considered Kuehl’s other assignments of error and find them to be without merit.

[¶ 18.] Reversed and remanded.

[¶ 19.] GILBERTSON, Chief Justice, and KONENKAMP and ZINTER, Justices, concur. [¶ 20.] MEIERHENRY, Justice, dissents. [¶ 21.] BASTIAN, Circuit Judge, for SABERS, Justice, disqualified.

1 . Except where noted, these facts represent the facts that were agreed upon by the parties. They are derived from Horner’s statement of undisputed material facts and Kuehl's statement of genuine issues of material fact remaining for trial that were presented to the trial court.

2 . Kuehl argues that violations of SDCL 32-15-27, 32-18-3 and 32-22-8.1 have created a statutory duty. All of these statutes pertain to the operator of a vehicle that is towing a trailer or to the owner of a trailer. None of these statutes pertain to Homer.