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Fryer v. Kranz9/6/2000
Appeal from the Third Judicial Circuit, Codington County, SD Hon. Robert L. Timm, Judge
Reversed
Argued Oct 19, 1999
Reassigned May 10, 2000
[ ] 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
[ ] 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 . Muriatic 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."
[ ] 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.
[ ] 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 "white-out." 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.
[ ] 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.
[ ] 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.
She sought damages for medical expenses, emotional distress, pain and suffering, and reduced earning capacity. Kranz mo
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