Cullison et al v. Hilti, Inc.

Filing 59

ORDER granting 47 Motion for Partial Summary Judgment. Signed by Chief Judge Karen E. Schreier on 10/12/2011. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
MICHAEL CULLISON, JR.,
and AMBER CULLISON,
Plaintiffs,
vs.
HILTI, INC.,
Defendant.

)
)
)
)
)
)
)
)
)
)

CIV. 09-4122-KES

ORDER GRANTING
DEFENDANT’S MOTION FOR
PARTIAL SUMMARY JUDGMENT

Plaintiffs, Michael Cullison, Jr., and Amber Cullison, filed a tort action
alleging strict liability claims and seeking compensatory and punitive damages
against defendant, Hilti, Inc., after Michael injured his left eye while using one
of Hilti’s products. Amber also claims a loss of consortium. Hilti moves for
partial summary judgment on the Cullisons’ punitive damages claim. The
Cullisons resist. The motion is granted.
BACKGROUND
The pertinent facts to this motion, in the light most favorable to the
Cullisons, the nonmoving party, are as follows:
Michael worked as a steel stud framer for Dave Kramer Drywall. On
July 18, 2006, Michael was working with Jon Rotert at the construction site of
the Sunshine Food Store in Sioux Falls, South Dakota, to erect the steel
framing for the store.

Rotert used a DX350 Hilti Powder Actuated tool to shoot steel pins into
the steel tracking. Michael assisted Rotert by holding the steel track so that
Rotert could fasten the track to the I-beam. Michael wore safety glasses that he
found in the DX350 case. While Hilti provided safety glasses for the DX350, the
DX350 manual says that “suitable protective goggles” should be used when
operating the tool.
At the time of the incident, Michael stood five to six feet behind Rotert.
When Rotert shot the DX350 gun, a steel pin fragmented and a small shard
entered Michael’s left eye. Michael underwent surgery to remove the fragment.
He has continued to experience trouble with vision in his left eye.
On December 11, 2006, an individual in Nevada was struck by an object
in the face while using a Hilti DX76 tool. On January 13, 2010, a nail deflected
off of a concrete floor and struck an individual in the cheek in Texas while a
Hilti product was being used. See Docket 53-2. Hilti received notice that both of
these incidents occurred.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(a) provides that “[t]he court shall grant
summary judgment if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
Only disputes over facts that might affect the outcome of the case will preclude
summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

2

Summary judgment is inappropriate if a dispute about a material fact is
genuine, that is, if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party. Id.
The moving party bears the burden of bringing forward sufficient
evidence to establish that there are no genuine issues of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). The court views the facts “in the
light most favorable to the party opposing the motion.” Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (internal citation omitted).
The nonmoving party also receives “the benefit of all reasonable inferences to
be drawn from the underlying facts” in the record. Vette Co. v. Aetna Cas. &
Sur. Co., 612 F.2d 1076, 1077 (8th Cir. 1980) (citing Adickes v. S.H. Kress &
Co., 398 U.S. 144, 158-59 (1970)).
DISCUSSION
Hilti argues that the Cullisons have offered insufficient evidence to
sustain their punitive damages claim. South Dakota allows plaintiffs, in certain
circumstances, to recover punitive damages. Dahl v. Sittner, 474 N.W.2d 897,
900 (S.D. 1991). A plaintiff claiming punitive damages must show that “the
defendant has been guilty of oppression, fraud, or malice, actual or presumed.”
SDCL 21-3-2. If the plaintiff makes this showing, “the jury, in addition to the
actual damages, may give damages for the sake of example, and by way of
punishing the defendant.” Id. To survive summary judgment, a plaintiff must

3

prove to the court by clear and convincing evidence that a reasonable basis
exists upon which a jury could award punitive damages. Dahl, 474 N.W.2d at
902 (citing Flockhart v. Wyant, 467 N.W.2d 473, 475 (S.D. 1991)).
The plaintiff must show that the defendant acted with “either actual,
malice in fact, or presumed, legal malice.” Id. at 900. “Actual malice is a
positive state of mind, evidenced by the positive desire and intention to injure
another, actuated by hatred or ill-will towards that person.” Id. (citing Gamble
v. Keyes, 178 N.W. 870, 872 (S.D. 1920)). “Presumed, legal malice, on the other
hand, is malice which the law infers from or imputes to certain acts.” Id. (citing
Hannahs v. Noah, 158 N.W.2d 678, 682 (S.D. 1968)). An inference of presumed
malice may be made when the person acts willfully or wantonly and injures
another. Id.
In Berry v. Risdall, 576 N.W.2d 1 (S.D. 1998), the South Dakota Supreme
Court addressed when punitive damages are appropriate in a negligence case:
“There must be facts that would show that defendant intentionally
did something . . . which he should not have done or intentionally
failed to do something which he should have done under the
circumstances that it can be said that he consciously realized that
his conduct would in all probability, as distinguished from
possibility, produce the precise result which it did produce and
would bring harm to the plaintiff.”
Id. at 9 (quoting Tranby v. Brodock, 348 N.W.2d 58, 61 (S.D. 1984)). “ ‘South
Dakota requires more egregious conduct than states which merely require
proof of gross negligence and states which require proof of conduct more

4

egregious than gross negligence, but which do not require proof of malice.
Thus, South Dakota is among the states having the most stringent conduct
requirement.’ ” Suhn v. Breg, Inc., No. 08-cv-4190, 2010 WL 5301043, at *6
(D.S.D. Dec. 20, 2010) (quoting Bierle v. Liberty Mut. Ins. Co., 792 F. Supp. 687,
692 (D.S.D.1992)).
In their complaint, the Cullisons state that Hilti “knew there were no
warnings and instructions for use advising users of powder actuated tools that
the safety glasses [Hilti] provided as a part of the product were inappropriate
and dangerous for usage with powder actuated tools . . . and that safety
goggles were the appropriate eye protection.” Docket 50 at 2. In opposition to
Hilti’s motion for partial summary judgment, the Cullisons offer the Hilti
DX350's user manual as evidence, Docket 53-1, but they do not explain how
the manual pertains to their punitive damages claim. See Docket 54.
As a safety precaution, the manual provides the following warning: “The
operator, and any other persons in the immediate vicinity, must wear suitable
protective goggles and a helmet while the tool is in use.” Docket 43-1 at 3. Hilti
provided safety glasses, not goggles, with the Hilti DX350. Hilti disputes “the
extent of knowledge and input offered by distributor Hilti, Inc. as to the precise
language used in the operator’s manual,” because “Vice President of Product
Safety, Marty Schofield, testified that he does not author the operator’s

5

manual, but provides input that may be accepted or rejected by the parent
corporation.” Docket 57 at 4 n.1.
The Cullisons also offer evidence that Hilti knew about two other
incidents involving its products that occurred in December of 2006, when an
individual was struck in the face while using a Hilti tool, and January of 2010,
when an individual was struck in the cheek while using a Hilti tool. The
Cullisons argue that punitive damages are appropriate because, like the
manufacturer in Holmes v. Wegman Oil Co., 492 N.W.2d 107 (S.D. 1992), Hilti
engaged in fraud and deceit “in failing to provide the appropriate safety
equipment for usage with the product and instead providing defective safety
equipment not recommended for usage with the product[.]” Docket 54 at 1-2.
In Holmes, the manufacturer recalled knobs for a defective water heater
ten years after it learned that the knobs were defective. 492 N.W.2d at 109. The
South Dakota Supreme Court upheld a jury’s award of punitive damages and
reasoned that the manufacturer “knew of the potential danger of explosion
from the control knob for ten years prior to deciding to recall it,” the
manufacturer did not issue warnings to people who already owned the defective
knobs, and the manufacturer instructed its personnel to “address potential
liability from these control explosions with ‘the foregone conclusion that we are
not involved.’ ” Id. at 113. The manufacturer maintained these policies
“through 22 explosions, 5 deaths and 19 injuries despite knowledge of the

6

potential dangers as early as 1969.” Id. The court reasoned that the
manufacturer fraudulently concealed the problems with the knob and acted
with malice. Id.
Here, the two incidents disclosed by Hilti, which occurred in December
of 2006 and January of 2010, post-date Michael’s July 18, 2006, eye injury,
and the January 13, 2010, incident post-dates even the filing of the Cullisons’
lawsuit. In a product liability case, a plaintiff must offer evidence that the
defendant had knowledge of problems with the product sufficiently prior to the
plaintiff’s injury to correct the alleged defect before a punitive damages claim
may be submitted to the jury. See Suhn, 2010 WL 5301043, at *6 (granting
summary judgment on the plaintiff’s punitive damages claim and reasoning
that the plaintiff “has not identified any evidence that [the defendant] was
aware that its pain pumps actually caused [the injury] prior to [the plaintiff’s]
surgery.”).
The DX350 manual states that the user should wear protective goggles
as a safety measure. But Hilti provided protective glasses, not goggles, with the
DX350. While a jury could find that Hilti’s failure to provide goggles constitutes
negligence, there are no facts in the record to suggest that Hilti’s failure to
provide goggles instead of safety glasses shows that Hilti intended to injure
another person, acted with hatred or ill-will, or consciously realized that its
conduct would, in all probability, produce the precise result of injuring

7

Michael’s eye in the manner in which he was injured. While the Cullisons
argue that Hilti acted fraudulently in failing to provide goggles with the DX350,
they have not offered either evidence or argument as to how Hilti acted with
any degree of fraud.
Because the Cullisons have offered no evidence that Hilti’s failure to
provide goggles instead of the allegedly defective safety glasses constitutes
oppression, fraud, or malice, they have not met their burden to show, by clear
and convincing evidence, that a reasonable basis exists for a jury to award
punitive damages. Thus, summary judgment is granted on their punitive
damages claim. Accordingly, it is
ORDERED that defendant’s motion for partial summary judgment on
punitive damages (Docket 47) is granted.
Dated October 12, 2011.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE

8