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Marguerite Cashman, Plaintiff and Appellant v. Darrick Van Dyke

May 30, 2012

MARGUERITE CASHMAN, PLAINTIFF AND APPELLANT,
v.
DARRICK VAN DYKE, DEFENDANT AND APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT JERAULD COUNTY, SOUTH DAKOTA THE HONORABLE JON R. ERICKSON Judge

The opinion of the court was delivered by: Konenkamp, Justice

ARGUED FEBRUARY 14, 2012

[¶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 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 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 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. 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.

[ΒΆ10.] 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 ...


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