Cashman v. Van Dyke

#26062-a-JKK

2012 S.D. 43

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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MARGUERITE CASHMAN, Plaintiff and Appellant,

v.

DARRICK VAN DYKE, Defendant and Appellee.

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APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
JERAULD COUNTY, SOUTH DAKOTA

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THE HONORABLE JON R. ERICKSON
Judge

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CASEY N. BRIDGMAN
Wessington Springs, South Dakota Attorney for plaintiff and
appellant.

RICHARD L. TRAVIS
LINDSAY K. EDWARDS of
May & Johnson, PC
Sioux Falls, South Dakota Attorneys for defendant and
appellee.

****
ARGUED FEBRUARY 14, 2012

OPINION FILED 05/30/12
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KONENKAMP, Justice

[¶1.] Sometime after he lit his pilot light, Darrick Van Dyke’s home burned

down from a propane explosion. The fire spread, destroying Marguerite Cashman’s

home next door. Cashman brought suit against Van Dyke, alleging negligence,

strict liability, and res ipsa loquitur. On Van Dyke’s motion for summary judgment,

the circuit court ruled that Cashman failed to present any evidence that Van Dyke

acted negligently, that lighting a pilot light was an abnormally dangerous activity,

or that the doctrine of res ipsa loquitur applied. Cashman appeals.

Background

[¶2.] Van Dyke’s home caught fire during the early morning hours of

October 12, 2007, following a propane explosion. The fire destroyed his home as

well as Cashman’s neighboring home. Van Dyke recounted that the night before

the fire he came home from work around 9:00 p.m. He felt cold and “went

downstairs and lit the furnace.” He smelled no odor and noticed nothing unusual.

The furnace started in its usual manner. He went to bed around 11:00 p.m. At 5:30

a.m., he awoke to what sounded like a tree falling on the house. His home was on

fire. Although he was able to escape, the fire seriously injured him.

[¶3.] Jerry VanDeOever was the first person on the scene and approached

Van Dyke, who was sitting in the street. VanDeOever asked Van Dyke what

happened. Van Dyke responded that “it blew up.” He said, “I should have waited to

have Schultz come and take a look at it.” Schultz is a serviceman for the local gas

supplier who had previously lit Van Dyke’s pilot light and serviced his furnace.

VanDeOever drove the badly burned Van Dyke to the hospital. There, VanDeOever

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told Van Dyke’s father, Jan, what happened. Jan replied, “I told Darrick not to

light that thing until he had talked to Schultz. I told him that.” VanDeOever heard

Jan ask Van Dyke why he did not wait until the next day to have Schultz come and

look at it. Van Dyke responded that he had gotten cold. Van Dyke’s injuries were

so severe that he was airlifted to Sioux Falls for treatment. Later, Jan went to Van

Dyke’s home and spoke with Shane Mentzer, the fire chief for the Wessington

Springs Volunteer Fire Department. Jan told Mentzer that he had warned Van

Dyke not to light the furnace but to wait for Schultz, and that Van Dyke did not

listen.

[¶4.] In June 2008, Van Dyke brought suit against CHS, Inc., the propane

supplier. The case ended in a confidential settlement agreement. Cashman

brought suit against Van Dyke in 2009 asserting negligence, strict liability, and res

ipsa loquitur. Van Dyke moved for summary judgment. In response, Cashman

argued that material issues of fact were in dispute because (1) Van Dyke said that

“it blew up” and that he should have waited for Schultz to light the pilot, (2) Van

Dyke’s father asked Van Dyke at the hospital why he did not wait for Schultz to

light the pilot, (3) Van Dyke’s father told third persons that Van Dyke should have

waited for Schultz to light the pilot, and (4) Van Dyke’s father had warned Van

Dyke to wait. From these facts, Cashman argued that a jury could infer that Van

Dyke knew he should not have lit the pilot light himself, and because he did not

wait for the serviceman, Van Dyke was negligent in lighting the pilot light or

manipulating the furnace. Van Dyke countered that even if Cashman’s allegations

were true, Cashman failed to present evidence that Van Dyke negligently lit the

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pilot light, departed from the standard of care required for lighting a pilot light, or

that lighting a pilot light is an abnormally dangerous activity.

[¶5.] After a hearing, the circuit court issued a memorandum decision and

order granting Van Dyke summary judgment. The court ruled that Van Dyke’s

“utterances made after the explosion are not proof that Van Dyke did something a

reasonable person would not do, or failed to do something which a reasonable

person would have done.” The court further concluded that there was no case for

strict liability, as lighting a home furnace is not an abnormally dangerous activity.

Finally, the court held the doctrine of res ipsa loquitur inapplicable.

Analysis and Decision

[¶6.] Summary judgment is proper if the moving party shows there are no

genuine issues of material fact in dispute. Paradigm Hotel Mortg. Fund v. Sioux

Falls Hotel Co., Inc., 511 N.W.2d 567, 569 (S.D. 1994). While the facts must be

viewed in a light most favorable to the nonmoving party, “[w]hen a motion for

summary judgment is made and supported as provided in § 15-6-56, an adverse

party may not rest upon the mere allegation or denials of his pleading, but his

response, by affidavits or as otherwise provided in § 15-6-56, must set forth specific

facts showing that there is a genuine issue for trial.” SDCL 15-6-56(e).

“Unsupported conclusions and speculative statements do not raise a genuine issue

of fact.” Paradigm, 511 N.W.2d at 569 (citing Home Fed. Sav. & Loan v. First Nat’l

Bank, 405 N.W.2d 655 (S.D. 1987)).

[¶7.] On appeal, Cashman first argues that there are material issues of fact

in dispute on whether Van Dyke negligently lit the pilot light or otherwise

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manipulated the furnace. She insists that a jury could infer, contrary to Van Dyke’s

testimony, that he actually lit the pilot light at 5:30 a.m., right before the explosion.

After he drove Van Dyke to the hospital, VanDeOever saw that Van Dyke’s feet

were bleeding profusely, and the nurses “started getting towels and water, and

containers to put his feet in, containers to put his hands in just to help kind of cool

them down. . . .” From this, Cashman deduces “that these burns were caused when

Darrick Van Dyke lit the pilot light with his hands and he is leaning in with his

right shoulder because he is right handed.” Van Dyke’s statements that “it blew up”

and he should have waited for Schultz (the serviceman) to light the pilot support

Cashman’s opinion that an inference can be made that Van Dyke knew he should

not have lit the pilot and was negligent when he failed to wait for Schultz.

[¶8.] Van Dyke testified to lighting the pilot light at 9:05 p.m., not at 5:30

a.m. Cashman wants an inference that Van Dyke lit the pilot at 5:30 a.m., but this

amounts to nothing more than speculation. See Paradigm, 511 N.W.2d at 569.

Regardless, even if we accept Cashman’s speculation as true, there remains

insufficient evidence of negligence to survive summary judgment.

[¶9.] Cashman argues that there is no question on how this fire started — it

started by an explosion — and therefore, a question of fact remains on how Van

Dyke was negligent. Indeed, there was an explosion, but an explosion alone does

not mean Van Dyke did something negligently. Negligence is the “want of ordinary

care[.]” SDCL 20-9-1. Cashman must present evidence that Van Dyke failed to do

something a reasonable person would do in lighting the pilot light, or that lighting

the pilot light was not something a reasonable person would do. See Sommervold v.

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Grevlos, 518 N.W.2d 733, 742 (S.D. 1994). Both Van Dyke and his father wished

Van Dyke would have waited for a serviceman to light the pilot. But what is

missing is evidence that Van Dyke did something negligently. Without such

evidence, we see no error in granting summary judgment on the negligence claim.

[¶10.] Cashman next argues that strict liability applies. She claims that

“[l]ighting a pilot in the middle of the night or in the early morning hours after the

pilot light has gone out when gas may have been allowed to pool is inherently and

abnormally dangerous.” Strict liability would relieve Cashman of her burden of

proving negligence. Thus, she asserts that Van Dyke recognized the inherent

danger of lighting the pilot, was warned of the danger by his father, had previously

called a serviceman to light his pilot, and decided nonetheless “to participate in this

abnormally dangerous activity.” Cashman cites no authority supporting her theory

that lighting a home furnace pilot light is an abnormally dangerous activity.

[¶11.] In Fleege v. Cimpl, we quoted the Restatement (Second) of Torts § 520

(1977) for the factors to be considered in determining whether an activity is

abnormally dangerous. 305 N.W.2d 409, 414 (S.D. 1981). The factors are:

(a) existence of a high degree of risk of some harm to the person,
land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable
care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is
carried on; and
(f) extent to which its value to the community is outweighed by
its dangerous attributes.

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Id. Whether an activity is abnormally dangerous is to be decided by a court upon

consideration of these factors. Id. at 415.

[¶12.] From our review of the factors and evidence Cashman presented, we

cannot say that Van Dyke participated in an abnormally dangerous activity when

he lit his pilot light. There is no evidence that lighting a home furnace pilot light

carries a high degree of risk, that it is likely to result in great harm, that the degree

of risk cannot be eliminated by exercising reasonable care, that lighting a pilot light

is not a matter of common occurrence, that such lighting is an inappropriate activity

in the place it is carried on, or that the value of lighting a pilot light by a

homeowner is outweighed by its dangerous attributes. “Most ordinary activities can

be made entirely safe by the taking of all reasonable precautions; and when safety

cannot be attained by the exercise of due care there is reason to regard the danger

as an abnormal one.” Id. (quoting Restatement (Second) of Torts § 520, cmt. h

(1977)). There being no evidence that lighting the pilot light in this case was

abnormally dangerous, the court did not err when it granted Van Dyke summary

judgment on this claim.

[¶13.] Lastly, Cashman asserts that Van Dyke’s negligence can be inferred

under the doctrine of res ipsa loquitur. According to Cashman, “houses just do not

explode, according to our common knowledge and experience, unless those having

the management and control [were] negligent.” She again insists that “the

explosion was caused by Van Dyke lighting or manipulating the pilot, something he

knew he should not do.”

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[¶14.] Res ipsa loquitur allows a jury to infer negligence “whenever a thing

which has caused an injury is shown to have been under the control and

management of the defendant charged with negligence, and the occurrence is such

as in the ordinary course of events does not happen if due care has been

exercised[.]” Barger v. Chelpon, 60 S.D. 66, 70, 243 N.W. 97, 98 (1932) (citation

omitted). In such cases, “the fact of the accident itself is deemed to afford sufficient

evidence to support a recovery in the absence of any explanation by the defendant

tending to show that the injury was not due to his want of care.” Id. Whether the

doctrine should be invoked must be decided by a court, keeping in mind that the

doctrine is to be used “sparingly and only when the facts and demands of justice

make the application essential.” Id. at 100.

[¶15.] The mere occurrence of an explosion is insufficient to support the

inference that Van Dyke was negligent. While we can agree that houses do not

normally explode, we find no support for Cashman’s argument that houses only

explode if the owner or person in control of the home is negligent. To employ res

ipsa loquitur here would require us to declare that the only explanation for the

explosion in Van Dyke’s home is negligence. From the evidence in the record, we do

not know what triggered the explosion. Any number of reasons might explain it.

Thus, res ipsa loquitur is inapplicable. The court did not err in granting Van Dyke

summary judgment.

[¶16.] Affirmed.

[¶17.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and

WILBUR, Justices, concur.

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