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McMillin v. Mueller3/23/2005
Considered on Briefs on November 15, 2004
[ .] Roger McMillin and Duane Heinert were employees at Mueller Feed Mill, Inc., located outside of Martin, South Dakota. On September 10, 2002, Roger and Duane died while cleaning an underground storage tank containing molasses used to mix and flavor livestock feed. Dale McMillin, as personal representative of the estate of Roger McMillin, and Rolan Heinert, as special administrator of the estate of Duane Heinert (collectively estates) brought a tort claim against Frank and Fred Mueller individually and Mueller Feed Mill, Inc. (Mill). Defendants moved for summary judgment pursuant to SDCL 15-6-56(b) claiming that the South Dakota Workers' Compensation Act was the exclusive remedy for the estates. The trial court, the Honorable Kathleen F. Trandahl, granted summary judgment to the defendants. The estates appeal arguing that the trial court committed error when it granted summary judgment to defendants. We affirm.
FACTS AND PROCEDURE
[ .] Mill has operated near Martin, South Dakota for over forty years. As part of Mill's business, it produces livestock feed by processing grains into pellets and mixing those pellets with molasses. This makes the pellets stick together and gives them flavor. The Mueller family has operated the Mill since its inception and the current president is Frank Mueller. Fred Mueller (Frank's father) is considered an owner of the Mill although his exact title is unclear.
[ .] The molasses used to flavor the pellets is stored in a large underground tank resembling a propane tank. The tank itself is approximately eight feet in diameter and twenty to twenty-five feet in length. There is a four-inch outlet pipe and a pump at one end that distributes the molasses to a conditional chamber to be mixed with the pellets. There is only one access point into the tank, through a hole at the top covered by two lids. To gain entry into the tank, a person is lowered by standing on a log chain attached to a forklift located directly above the hole. Another employee must lower the chain and the person into the tank. The tank requires yearly cleaning due to the tendency of the molasses to dry and become chunky, clogging the pump and the outlet pipe. The only method of cleaning is by lowering a person into the tank who then manually removes the chunks from the outlet pipe and the walls. In the forty years the Mill has mixed molasses with feed pellets, many employees, including Fred and Frank Mueller and Frank's son Ryan, have entered the molasses tank to perform its yearly cleaning.
[ .] On September 10, 2002, Frank Mueller made the decision to clean the molasses tank. That morning, after removing the tank's lids and leaning his head about a foot into the tank, Frank inspected it with a flashlight and determined someone needed to go into the tank and remove the chunks from the walls and the outlet. Frank then met with his employees, Roger McMillin, Duane Heinert, Harlan Richards and David McMillin to discuss their daily assignments. Roger and Duane were assigned to replace the bearings in a leg on top of the Mill that was located outside of the building housing the molasses tank while David, Harlan and Frank went to the mill room to clean the molasses tank.
[ .] Around 8:30 a.m., David lowered Harlan into the tank while Frank watched from the side. Just as Harlan's head was about three or four inches from the top of the hole, Harlan told Frank and David that he could not breathe and to take him out of the hole. After Harlan was taken out of the tank, Frank went to Duane and Roger and asked them to clean the tank when they were finished replacing the bearings. Since both Duane and Roger had been
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