Estate of Olsen v. Agtegra Co.

#30161-aff in pt & rev in pt-SRJ
2024 S.D. 39

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

****

THE ESTATE OF ARTHUR OLSEN and
ANNETTE OLSEN, and PHEASANT
PHUN, INC., Plaintiffs and Appellants,

v.

AGTEGRA COOPERATIVE, as successor
of NORTH CENTRAL FARMERS
ELEVATOR and SOUTH DAKOTA WHEAT
GROWERS ASSOCIATION and/or NCFE
AIR HURON, LLC, and HEATH
KRETSCHMAR, Defendants and Appellees.

****

APPEAL FROM THE CIRCUIT COURT OF
THE FIFTH JUDICIAL CIRCUIT
SPINK COUNTY, SOUTH DAKOTA

****

THE HONORABLE TONY L. PORTRA
Judge

****

JOEL A. ARENDS
Sioux Falls, South Dakota Attorney for plaintiffs and
appellants.

****

CONSIDERED ON BRIEFS
AUGUST 29, 2023
OPINION FILED 07/10/24
****

JOSHUA K. FINER of
Richardson, Wyly, Wise
Sauck & Hieb, LLP
Aberdeen, South Dakota Attorneys for defendants and
appellees Agtegra.

SCOTT A. HINDMAN of
Mayne, Hindman, Parry & Wingert
Sioux City, Iowa Attorneys for defendants and
appellees North Central
Farmers Elevator.

JOEL E. ENGEL III of
Woods, Fuller, Shultz & Smith, P.C.
Sioux Falls, South Dakota Attorneys for defendants and
appellees NCFE Air Huron and
Heath Kretschmar.
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JENSEN, Chief Justice

[¶1.] Arthur and Annette Olsen (Olsens) maintained a 20-acre strip of

ponderosa pine trees on their farm. On October 20, 2014, while guiding a hunting

party on the Olsens’ property, the Olsens’ son, David, claimed a crop duster airplane

sprayed herbicide onto those in the party and the trees. The Olsens filed this action

alleging the herbicide had damaged the trees. The Defendants filed a motion for

summary judgment, arguing that expert testimony was required to show causation

for any alleged damage to the trees from the herbicide. The circuit court granted

the Defendants’ motion in its entirety. The Olsens appeal. We affirm in part,

reverse in part, and remand.

Factual and Procedural Background

[¶2.] In 1960, Arthur planted 18,000 non-native ponderosa pine trees on the

Olsens’ farm in Spink County, South Dakota. Of those 18,000 trees, fewer than

1,000 eventually took root and grew. By October 2014, approximately 480 trees

remained.

[¶3.] The Olsens claim that in October 2014, a crop duster airplane operated

by the Defendants was applying ForeFront HL herbicide to a nearby field and

caused the herbicide to be sprayed onto the Olsens’ trees. The first amended

complaint alleges that the hunters on the Olsens’ property “felt the chemical spray

land on their persons” and “smelled the chemical on their persons and could taste

the chemical in their mouths.” The Olsens claim that the herbicide caused

significant damage and death to the trees.

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[¶4.] Approximately one month later, Arthur, along with Shawn Thelen, an

agronomist then working for Defendant North Central Farmers Elevator (NCFE),

and Dr. John Ball, a forestry specialist from South Dakota State University,

inspected the ponderosa pine trees. Thelen confirmed that ForeFront HL was the

chemical sprayed by the crop duster and that NCFE had provided the chemical.

The trees showed no visible evidence of damage from the chemical spray at that

time. The Olsens’ complaint alleged that Thelen asked the parties to wait until the

spring of 2015 “to allow the trees to grow back if possible so that they could tell

what trees would grow back versus which ones would die because of the [ForeFront

HL] spraying.” They further alleged that Thelen stated that NCFE “would make it

right” in response to the Olsens’ request to repair any damage done to the trees. 1

[¶5.] On October 28, 2015, the Olsens retained Sam Kezar of Aspen

Arboriculture Solutions to inspect the trees and provide (1) an opinion of the value

of the trees and (2) an “independent, objective expert opinion into the potential

cause(s) of death to the trees in question.” Kezar inspected the trees on December

10, 2015, and submitted a report based upon his inspection. Kezar provided his

opinion on the value of the trees. But on the question of causation, Kezar stated

that “[n]o opinions or assumptions pertaining to the cause of the trees’ death are

within this report, nor are intended.”

[¶6.] The Olsens alleged five counts in their complaint—trespass, statutory

nuisance, common law nuisance, civil conspiracy, and promissory estoppel. The

Olsens amended their complaint and filed an expert witness disclosure. They

1. Thelen passed away in 2017.

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named Kezar, anticipated to provide opinions consistent with his report; Brad

Johnson, a certified general real property appraiser; and their son, David. No

opinions or reports were provided from the latter two designated expert witnesses.

[¶7.] Defendants NCFE, Air Huron, LLC, and Heath Kretschmar filed a

motion for summary judgment arguing that the Olsens failed to identify an expert

to testify as to causation of the damages to the trees—the only damages claimed in

the case. The remaining Defendants later joined this motion. The Defendants

offered the transcript of Annette’s May 4, 2022 deposition and Kezar’s report in

support of the motion. Annette’s deposition was presented to support the

Defendants’ claim that any damage to the trees was due to other causes, including a

June 2013 storm event.

[¶8.] In her testimony, Annette described a “horrific storm” that brought

large hail, which punctured the steel roof of the hunting lodge on the Olsens’

property, along with ten inches of rain. The storm stripped the surrounding crops

and vegetation on the property, leaving everything black. The Olsens’ nearby

farmhouse was demolished as a total loss, and the hunting lodge underwent

substantial repair because of the June 2013 storm. Annette testified that any

damage to the trees was not considered at this time because the Olsens prioritized

the restoration of their home and their claim of several years of lost income to the

hunting business because of the impact of the storm.

[¶9.] The Olsens filed a brief resisting the Defendants’ summary judgment

motion and a reply to the Defendants’ statement of undisputed material facts. In

their brief, the Olsens asserted that expert testimony was unnecessary to prove

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causation and there were genuine issues of material facts in dispute precluding

summary judgment. However, the Olsens failed to submit any affidavits or other

evidence and relied solely on allegations and attachments in their first amended

complaint. Further, in responding to the Defendants’ statement of undisputed

material facts, the Olsens did not deny the facts submitted by the Defendants. 2

[¶10.] Following a hearing on the summary judgment motion, the circuit

court determined that a jury “would be left to speculate about the cause of the

damage to Plaintiff’s trees” without expert testimony. The court reasoned that the

facts of the case implicated the fields of chemistry, botany, and agronomy—areas

beyond typical layperson understanding—and a jury’s decision required expert

testimony as to the proximate cause of the damages to the trees. The court entered

a corresponding order granting the motion for summary judgment, dismissing with

prejudice the Olsens’ complaint in its entirety.

[¶11.] The Olsens appeal and raise the single issue of whether the circuit

court erred in granting the motion for summary judgment.

Standard of Review

[¶12.] “We review a circuit court’s entry of summary judgment under the de

novo standard of review.” Harvieux v. Progressive N. Ins. Co., 2018 S.D. 52, ¶ 9, 915

N.W.2d 697, 700 (citation omitted). Our rules for reviewing the entry “of summary

judgment under SDCL 15-6-56(c) [are] well settled.” Garrido v. Team Auto Sales,

2. The Olsens responded that many of the facts were “immaterial to any claim
or defense in this case” and offered additional information from the unsworn
pleadings in response to several facts, but they “otherwise admit[ted]” all
facts contained in the Defendants’ statement of undisputed material facts.

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Inc., 2018 S.D. 41, ¶ 15, 913 N.W.2d 95, 100 (quoting McKie Ford Lincoln, Inc. v.

Hanna, 2018 S.D. 14, ¶ 8, 907 N.W.2d 795, 798).

Summary judgment is proper where, the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law. We will affirm only when no
genuine issues of material fact exist and the law was applied
correctly. We make all reasonable inferences drawn from the
facts in the light most favorable to the non-moving party. In
addition, the moving party has the burden of clearly
demonstrating an absence of any genuine issue of material fact
and an entitlement to judgment as a matter of law.

Id. (quoting McKie Ford Lincoln, Inc., 2018 S.D. 14, ¶ 8, 907 N.W.2d at 798).

Analysis

Entry of summary judgment as to causation

[¶13.] The Olsens claim that the circuit court erred in granting summary

judgment because expert testimony is not required in this case and that they have

presented sufficient facts to show causation. They cite authority from a South

Dakota federal district court as support. See Krasniqi v. Holdahl, Inc., No. 4:20-CV-

04090-KES, 2022 WL 612660, at *3–4 (D.S.D. Mar. 2, 2022) (holding that whether

expert testimony is required depends on the facts of each case and that it was not

required to establish an ordinary standard of care). The Olsens also argue that

summary judgment was inappropriate because proof of damages is not an element

essential for the claims of trespass or nuisance.

[¶14.] The Defendants counter that the circuit court properly granted

summary judgment on all the claims because the Olsens failed to present evidence

creating a genuine issue of material fact that the damage to the trees was caused by

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the chemical spray event and failed to allege any other damages. The Defendants

claim that the Olsens were required to present expert testimony to establish that

the chemical allegedly sprayed on the trees was the proximate cause of the damage

claimed. The Defendants rely on Cooper v. Brownell, in which this Court held that

the circuit court did not err in determining that expert testimony was required to

show causation for claims of bodily injury when there were multiple past injuries to

the same parts of the plaintiff’s body. 2019 S.D. 10, ¶ 17, 923 N.W.2d 821, 825.

[¶15.] In moving for summary judgment, the Defendants argued that the

Olsens could not establish causation for the damage to the ponderosa pine trees

without expert testimony. The Defendants relied on Kezar’s report stating that he

was tasked by the Olsens with determining causation for the damage to the trees

but was unable to provide any “opinions or assumptions pertaining to the cause of

the trees’ death[.]” The Defendants also presented evidence showing that, upon

inspection in November 2014, there was no visible damage to the trees from the

October 2014 spraying event. Additionally, the Defendants presented evidence of

other plausible causes for any alleged damage to the trees, including: a severe storm

in 2013; a showing that ponderosa pine trees are not native to eastern South

Dakota; that the soil type on the Olsens’ farm was not conducive to growing

ponderosa pine trees; that many of the trees did not flourish because of lack of

moisture; and that most of the trees had already died prior to 2014.

[¶16.] In responding to the motion for summary judgment, the Olsens did not

present any expert opinions or other evidence to show causation for damage to the

trees from the chemical spray incident. Instead, the Olsens relied upon allegations

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in their first amended complaint and argued that they did not need to present

expert testimony on causation.

[¶17.] “When a motion for summary judgment is made and supported as

provided in § 15-6-56, an adverse party may not rest upon the mere allegations or

denials of his pleading[.]” SDCL 15-6-56(e). The nonmoving party must “make a

showing sufficient to establish the existence of an element essential to that party’s

case, and on which that party will bear the burden of proof at trial.” Sheard v.

Hattum, 2021 S.D. 55, ¶ 28, 965 N.W.2d 134, 143 (citation omitted). “It is well

settled that ‘[w]hen challenging a summary judgment, the nonmoving party must

substantiate [their] allegations with sufficient probative evidence that would permit

a finding in [their] favor on more than mere speculation, conjecture, or fantasy.’”

Hanson v. Big Stone Therapies, Inc., 2018 S.D. 60, ¶ 29, 916 N.W.2d 151, 159

(alterations in original) (citation omitted).

[¶18.] On the question of causation, “to successfully resist summary

judgment, [a party is] required to provide ‘an evidentiary basis’ for [causation].”

Nationwide Mut. Ins. Co. v. Barton Solvents, Inc., 2014 S.D. 70, ¶ 17, 855 N.W.2d

145, 151 (citing Burley v. Kytec Innovative Sports Equip., Inc., 2007 S.D. 82, ¶ 32,

737 N.W.2d 397, 409). “Proof of causation is an element essential to [a plaintiff’s]

case. Therefore, [a plaintiff cannot] ‘rest upon the mere allegations’ in his

pleadings.” Cooper, 2019 S.D. 10, ¶ 16, 923 N.W.2d at 825 (citing SDCL 15-6-56(e)).

[¶19.] “[E]xpert testimony is required when the issue [of causation] falls

outside the common experience of a jury.” Burley, 2007 S.D. 82, ¶ 29, 737 N.W.2d

at 407 (citing Caldwell v. John Morrell & Co., 489 N.W.2d 353, 362 (S.D. 1992)).

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“Expert testimony is generally necessary to establish elements of negligence” in a

products liability action “unless it is patently obvious” that a product defect was the

proximate cause of alleged damages. Nationwide Mut. Ins. Co., 2014 S.D. 70, ¶ 17,

855 N.W.2d at 151. Expert testimony is necessary to prove causation for damages

in circumstances where “conclud[ing] otherwise would effectively allow the jury to

speculate on an unguided determination of causation[.]” Cooper, 2019 S.D. 10, ¶ 17,

923 N.W.2d at 825.

[¶20.] Here, the circuit court’s decision to grant summary judgment could be

sustained on two bases—a failure of proof and the absence of an expert. First, the

Olsens have simply not submitted any evidence to show which trees, if any, were

sprayed with herbicide. There was some evidence, as we note below, that areas of

the Olsens’ land were sprayed, but there are no affidavits, depositions, or other

evidence showing which trees, if any, were sprayed.

[¶21.] No evidence, expert or otherwise, was presented concerning the

amount of herbicide the trees were exposed to, the likelihood that the ForeFront HL

would have damaged or killed the trees, or that any of the trees had died as a result

of exposure to the herbicide. 3 The inability of the Olsens’ own expert to provide an

3. In their brief, the Olsens argue that the product label cautions against using
ForeFront HL around ponderosa pine trees. Moreover, the label attached to
the first amended complaint simply states that caution should be used when
applying the product next to certain trees, including ponderosa pine, and that
the chemical may “curl the leaves of trees” but would be unlikely to kill
mature trees. The label also provides different warnings depending on the
concentration of the herbicide, but the record fails to show the amount of
herbicide used or the amount of herbicide the trees were exposed to. See
Uhler v. Graham Grp., Inc., 992 N.W.2d 577, 581 (Iowa 2023) (“A safety data
sheet alone isn’t sufficient to establish causation in a toxic tort case because
(continued . . .)
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opinion on causation only underscores that a jury could not be expected to reach a

determination on causation without resorting to speculation.

[¶22.] Annette acknowledged in her deposition that there was no visible

damage to the trees from the spray incident when the trees were inspected

approximately one month after the event. In his report, Kezar referenced that

when he inspected the trees in 2015, some trees were dead, while others were

healthy, but he rendered no opinion whether this damage was caused by the spray,

or whether the condition of the trees had changed after the 2014 alleged herbicide

exposure. Since there was no evidence that the condition of the trees Kezar

observed in 2015 was any different than their condition prior to the spray incident

in October 2014, Kezar’s observations were meaningless in the absence of an

opinion on the cause of the damage to the trees. The mere recitation that some of

the trees were dead is not “sufficient probative evidence [to] permit a finding in

[their] favor on more than mere speculation [or] conjecture[.]” Hanson, 2018 S.D.

60, ¶ 29, 916 N.W.2d at 159 (second alteration in original) (citation omitted).

[¶23.] Even if the record could support an inference that the trees were

exposed to herbicide, the circuit court’s decision to grant summary judgment is

equally sustainable on the basis that the Olsens lack expert testimony to support

the claim that the trees died as a result. The issue of causation here involves the

interaction of a chemical agent on a living plant organism, and we have little

________________________
(. . . continued)
the sheets aren’t evidence of what a toxic level of exposure might be, whether
a particular person was exposed to a toxic dosage, or whether the person’s
exposure actually caused her injuries.”).

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difficulty holding that this is an area “beyond usual and ordinary experiences” of a

lay jury. Cooper, 2019 S.D. 10, ¶ 13, 923 N.W.2d at 824 (citing Hanson, 2018 S.D.

60, ¶ 34, 916 N.W.2d at 160). Consequently, expert evidence is necessary to

establish causation.

[¶24.] Other courts have also held that expert testimony is necessary to

present a submissible case of causation when a jury is left to speculate from other

evidence whether herbicide may have caused damage to trees. In an action for

damage to evergreen trees from an aerial spraying of the chemical 2,4-D, the Iowa

Supreme Court held that the evidence presented, including expert testimony that

did not provide an opinion that 2,4-D was the cause of the damage to the trees in

question, was insufficient to permit the case to be submitted to a jury. Burton v.

Theobold, 216 N.W.2d 299, 300 (Iowa 1974). In that case, an expert provided

testimony that 2,4-D might sometimes kill trees but declined to provide a causation

opinion as to whether it damaged the trees in question. Id. at 300–01. The court

determined that “the damage claimed here requires some expert testimony to

establish the properties and effects of 2,4-D. It is not the type of damage which an

ordinary juror might determine without such help.” Id. at 300; see also Helena

Chem. Co. v. Cox, 664 S.W.3d 66, 79 (Tex. 2023) (explaining the requirement for

causation that a plaintiff establish the contaminant dosage that would be expected

to produce injury to trees).

[¶25.] For these reasons, the circuit court properly granted summary

judgment with regard to the causation for damages to the trees.

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Disposition of underlying claims

[¶26.] The Olsens’ complaint alleged claims for trespass, statutory nuisance,

common law nuisance, civil conspiracy, and promissory estoppel. Civil conspiracy

and promissory estoppel each require a showing of damage or economic loss to

survive summary judgment. 4 Because the Olsens did not resist summary judgment

with specific facts showing a genuine issue for trial on the question of causation of

damages, the circuit court properly granted summary judgment on the claims for

civil conspiracy and promissory estoppel.

[¶27.] The remaining claims—trespass, statutory nuisance, and common law

nuisance—do not require a showing of damages to survive summary judgment. Our

decisional law specifically excludes damages as a necessary element for a prima

facie case of civil trespass:

One who intentionally and without a consensual or other
privilege
(a) enters land in possession of another or any part thereof or
causes a thing or third person to do so, or
(b) remains thereon is liable as a trespasser to the other
irrespective of whether harm is thereby caused to any of his
legally protected interests.

Zwart v. Penning, 2018 S.D. 40, ¶ 21, 912 N.W.2d 833, 839–40 (emphasis added)

(quoting Benson v. State, 2006 S.D. 8, ¶ 74, 710 N.W.2d 131, 159).

4. “To establish a prima facie case of civil conspiracy, the plaintiff must show
. . . damages as the proximate result of the conspiracy.” Kirlin v. Halverson,
2008 S.D. 107, ¶ 59, 758 N.W.2d 436, 455 (citation omitted). Likewise,
promissory estoppel requires that “the detriment suffered in reliance must be
substantial in an economic sense[.]” Garrett v. BankWest, Inc., 459 N.W.2d
833, 848 (S.D. 1990) (citing Minor v. Sully Buttes Sch. Dist. No. 58–2, 345
N.W.2d 48, 51 (S.D. 1984)).

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[¶28.] Claims for statutory or common law nuisance also do not require a

showing of damage as a necessary element of the claims. SDCL 21-10-1 provides:

A nuisance consists in unlawfully doing an act, or omitting to
perform a duty, which act or omission either:
(1) Annoys, injures, or endangers the comfort, repose, health,
or safety of others;
(2) Offends decency;
(3) Unlawfully interferes with, obstructs, or tends to obstruct,
or renders dangerous for passage, any lake or navigable
river, bay, stream, canal, or basin, or any public park,
square, street, or highway;
(4) In any way renders other persons insecure in life, or in
the use of property.

[¶29.] Similarly, we have adopted the elements of common law nuisance set

out by the Restatement (Second) of Torts § 822 (1979), which is also silent on

damages as a necessary element:

One is subject to liability for a private nuisance if, but only if,
his conduct is the legal cause of an invasion of another’s interest
in the private use and enjoyment of land, and the invasion is
either
(a) intentional and unreasonable, or
(b) unintentional and otherwise actionable under the rules
controlling liability for negligent or reckless conduct, or for
abnormally dangerous conditions or activities.

Atkinson v. City of Pierre, 2005 S.D. 114, ¶ 13, 706 N.W.2d 791, 796 (quoting

Restatement (Second) of Torts § 822 (1979)); see also Collins v. Barker, 2003 S.D.

100, ¶ 17, 668 N.W.2d 548, 554 (same); Kuper v. Lincoln-Union Elec. Co., 1996 S.D.

145, ¶ 49, 557 N.W.2d 748, 761 (same).

[¶30.] “Summary judgment is proper ‘if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact, and the moving party is

entitled to judgment as a matter of law.’” Dakota Indus., Inc. v. Cabela’s.Com, Inc.,

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2009 S.D. 39, ¶ 10, 766 N.W.2d 510, 513 (quoting SDCL 15-6-56(c) (Rule 56)). Rule

56 places the initial burden “on the moving party to clearly show an absence of any

genuine issue of material fact and an entitlement to judgment as a matter of law.”

Id. (citation omitted). However, “those resisting summary judgment must show

that they will be able to place sufficient evidence in the record at trial to support

findings on all the elements on which they have the burden of proof.” Id. ¶ 11, 766

N.W.2d at 513 (quoting Bordeaux v. Shannon Cnty. Sch., 2005 S.D. 117, ¶ 14, 707

N.W.2d 123, 127).

[¶31.] While the facts are not well-developed in this record, Annette claimed

in her deposition that the Olsens’ property and the hunting party on their property

were sprayed by the crop duster. In moving for summary judgment, the Defendants

did not challenge this claim, and there appears to be no real dispute that the

Defendants caused the chemical spray to enter the Olsens’ property without

consent. See Zwart, 2018 S.D. 40, ¶ 21, 912 N.W.2d at 839–40 (listing elements of

civil trespass where crux of trespass is the entry of the land rather than any harm

caused thereby). Based upon this intrusion, a reasonable jury also could determine

this act “[a]nnoy[ed], injure[d], or endanger[ed] the comfort, repose, health, or safety

of others . . . [or] render[ed] other persons insecure . . . in the use of property.”

SDCL 21-10-1. Further, a reasonable jury could determine that such an act was an

illegal “invasion of another’s interest in the private use and enjoyment of land”

either intentionally or unintentionally. Atkinson, 2005 S.D. 114, ¶ 13, 706 N.W.2d

at 796 (quoting Restatement (Second) of Torts § 822 (1979)).

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[¶32.] Accordingly, the circuit court erred in granting summary judgment on

the Olsens’ trespass, statutory nuisance, and common law nuisance claims.

However, because the Olsens have failed to present evidence as to causation for the

claimed damages, any compensatory damages under these theories may be limited

to nominal damages. See Hoffman v. Bob Law, Inc., 2016 S.D. 94, ¶ 20, 888 N.W.2d

569, 577 (holding in a claim for trespass arising from an adjoining landowner’s

encroachment that an award of nominal damages was not erroneous when a party

failed to introduce credible evidence of damages).

[¶33.] We affirm the circuit court’s grant of the motion for summary

judgment on the question of damages to the Olsens’ trees. We also affirm the circuit

court’s grant of the motion for summary judgment on the claims of promissory

estoppel and civil conspiracy. We reverse the circuit court’s entry of summary

judgment on the claims of trespass, statutory nuisance, and common law nuisance

and remand for further proceedings consistent with this opinion.

[¶34.] SALTER and MYREN, Justices, concur.

[¶35.] KERN and DEVANEY, Justices, concur in part and dissent in part.

KERN, Justice (concurring in part and dissenting in part).

[¶36.] I concur only in the majority opinion’s determination that the circuit

court erred in granting summary judgment on the Olsens’ claims for trespass,

statutory nuisance, and common law nuisance. The majority opinion thereafter

wrongly asserts that any compensatory damages for these claims are limited to an

award of nominal damages citing Hoffman v. Bob Law, Inc., 2016 S.D. 94, ¶ 20, 888

N.W.2d 569, 577, a case which is readily distinguishable. There, in an

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encroachment action, the Court upheld an award of nominal damages due to the

lack of “any credible evidence of damages.” Id. at 577. Here, such a determination

is premature at the summary judgment stage, particularly given the evidence of

damages discussed below.

[¶37.] Moreover, I respectfully dissent from the majority opinion’s holding

that summary judgment was appropriate on the Olsens’ claim for damage to their

trees. Parties resisting summary judgment are not required to “establish and prove

every element” of their claim(s). Stern Oil Co., Inc. v. Brown, 2012 S.D. 56, ¶ 16,

817 N.W.2d 395, 401. However, the majority opinion concludes that—in addition to

an alleged failure of proof in resisting summary judgment—the Olsens should have

presented expert testimony establishing that ForeFront HL caused the damage to

their unique grove of ponderosa pines. Such a result goes beyond our current

jurisprudence, importing questionable precedent from other jurisdictions. The

majority opinion also neglects substantial direct and circumstantial evidence that,

at the very least, renders summary judgment inappropriate.

[¶38.] “[S]ummary judgment is an extreme remedy and should be awarded

only when the truth is clear and reasonable doubts touching upon the existence of a

genuine issue of material fact should be resolved against the movant.” Tibke v.

McDougall, 479 N.W.2d 898, 904 (S.D. 1992). Furthermore, “the movant has the

burden of proof to clearly show that there is no genuine issue of material fact and

that he is entitled to judgment as a matter of law.” Id. “[S]ummary judgment is not

a substitute for trial; a belief that the non-moving party will not prevail at trial is

not an appropriate basis for granting the motion on issues not shown to be a sham,

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frivolous or unsubstantiated.” Godbe v. City of Rapid City, 2022 S.D. 1, ¶ 20, 969

N.W.2d 208, 213 (alteration in original).

[¶39.] The majority opinion notes that the Olsens “failed to submit any

affidavits or other evidence and relied solely on allegations and attachments in their

first amended complaint.” However, courts may consider “the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any” when evaluating a motion for summary judgment. SDCL 15-6-

56(c). In addition, the Defendants’ attorney submitted an affidavit on July 7, 2022,

containing Annette Olsen’s May 4, 2022 deposition transcript, a copy of Sam Kezar’s

expert report on the ponderosa pines, and accompanying photographs. 5 This Court

and the circuit court, in evaluating summary judgment, should consider the

pleadings and evidence presented in the Defendants’ affidavit and the Olsens’ first

amended complaint.

[¶40.] The majority opinion first argues that summary judgment is

appropriate because “the Olsens have simply not submitted any evidence to show

which trees, if any, were sprayed with herbicide.” According to the majority,

although “[t]here was some evidence . . . that areas of the Olsens’ land were

sprayed[,] . . . there are no affidavits, depositions, or other evidence showing which

trees, if any, were sprayed.” This statement is simply inaccurate and contrary to

the record.

5. The evidence in this affidavit was referenced by both parties at the summary
judgment hearing.

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[¶41.] In October 2014, David Olsen, the son of Arthur and Annette Olsen,

witnessed the Defendants’ crop duster spraying the ponderosas with ForeFront HL

herbicide. He was guiding pheasant hunters around the property when the crop

duster released its spray dousing them all with the ForeFront HL spray. 6

ForeFront HL is a herbicide and its label specifically warns that it “can cause injury

or death to desirable vegetation.” 7 Accordingly, “[u]sers are advised not to apply

[ForeFront HL] over the top of desirable trees or in the root zone of susceptible

species where injury cannot be tolerated.” The label specifically identifies

ponderosa pines as a susceptible species.

[¶42.] Shortly after the spraying incident, an agronomist employed by North

Central Farmers Elevator (NCFE), one of the Defendants, surveyed the trees with

David. As no immediate damage was apparent, the NCFE employee requested that

the parties postpone any action until spring 2015 to see if any of the trees would

survive. The employee also assured David that NCFE “would make it right” if the

trees ultimately exhibited damage from the spraying. Nevertheless, when all of the

ponderosa pines in the north half of the Olsens’ property died by 2015, NCFE

refused to compensate the Olsens. An aerial photo of the trees, referenced during

6. David and his hunting party hurried back to the lodge to shower, spray down
their dogs and wash their gear and clothing to remove the herbicide released
from the plane.

7. This label was included in the Olsens’ first amended complaint and
substantively referenced by both parties at the summary judgment hearing.
A court is entitled to consider “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any” in
evaluating a motion for summary judgment. SDCL 15-6-56(c).

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the summary judgment hearing, demonstrates that the dead trees mirror the crop

duster’s spray pattern.

[¶43.] In the fall of 2015, an expert was retained by the Defendants to

appraise the damaged trees and to assess the cause of their death. Presumably due

to the substantial lapse in time since the spraying—caused by the Olsens’ good faith

reliance on NCFE’s assurances—the expert was unable to conclusively establish a

cause. However, the expert made key observations from which a jury could

reasonably find causation without resorting to mere speculation. Notably, out of

the 480 ponderosa pine trees, the expert observed 380 dead trees and another 80

with 50% or greater sudden canopy loss/damage. According to the expert, “the

growth intervals on the trees, up until death, [were] normal and healthy.” The

remaining undamaged trees “were healthy, with normal growth and no signs of pest

or disease problems.” Although the expert noted that not all of the ponderosas

survived the initial planting, “those that did establish after the planting were

healthy and not dying prior to the damage.” In other words, the grove of otherwise

healthy ponderosas experienced a sudden adverse event that resulted in damage

and death.

[¶44.] Viewed in totality, these facts are more than sufficient for a trier of

fact to conclude that the Olsens’ ponderosas were indeed sprayed with and damaged

by the ForeFront HL. David witnessed the spraying of these trees. The ForeFront

HL label specifically warns that it can cause damage or death when sprayed on the

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canopy of susceptible species such as ponderosa pines. 8 This very result occurred as

the Olsens’ ponderosas died over the months following the spraying, creating a

blighted area matching the spray pattern. The majority steps over these facts to

proclaim that there is “no . . . evidence . . . that the trees were sprayed.”

Nevertheless, a thorough review of the record before us reveals that summary

judgment is inappropriate because a reasonable jury could determine that the

ForeFront HL did indeed kill the trees.

[¶45.] To hedge against this inevitable conclusion, the majority opinion

alternatively argues that “[e]ven if the record could support an inference that the

trees were exposed to herbicide, the circuit court’s decision to grant summary

judgment is equally sustainable on the basis that the Olsens lack expert testimony

to support the claim that the trees died as a result.” The majority opinion correctly

notes that, to avoid summary judgment, “expert testimony is required when the

issue falls outside the common experience of a jury.” Burley v. Kytec Innovative

Sports Equip., 2007 S.D. 82, ¶ 29, 737 N.W.2d 397, 407 (citing Caldwell v. John

8. Rather than properly applying the summary judgment standard and viewing
the evidence in a light most favorable to the Olsens, the majority opinion
looks for ways to discredit this clear warning. It cites Uhler v. Graham Grp.,
Inc., 992 N.W.2d 577, 581 (Iowa 2023) for its determination that “[a] safety
data sheet alone” is insufficient to establish causation because of a lack of
evidence regarding the level of exposure and whether there was in fact
exposure to a toxic dosage. However, not only is the fact of exposure
supported by evidence produced by the Olsens, but the usage warning for the
ForeFront HL is not confined to a specific rate of application, especially when
applying it over the top of the tree canopy as opposed to applying it to the soil
or weeds under the canopy. The ForeFront HL guidelines for use emphasize
that it “should NOT be used over-the-top of desirable trees” and “can be used
ONLY as a directed spray under the canopy, or within the drip line of certain
trees[,]” one of which is the ponderosa pine.

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Morrell & Co., 489 N.W.2d 353 (S.D. 1992)). For example, in the context of

negligence, “when the causal connection between the injury and accident is beyond

usual and ordinary experiences, expert testimony is required to establish

causation.” Cooper v. Brownell, 2019 S.D. 10, ¶ 13, 923 N.W.2d 821, 824. In

Cooper, the plaintiff had preexisting injuries that made it difficult to identify which

damages were caused by the accident at issue. Id. ¶ 14, 923 N.W.2d at 824–25.

Thus, by not proffering expert testimony to differentiate between the injuries, the

plaintiff failed “to make a showing sufficient to establish the existence of an element

essential to that party’s case” and summary judgment was appropriate. Id. ¶ 15,

923 N.W.2d at 825.

[¶46.] But such a need for an expert is not present here. Unlike Cooper,

expert testimony is not required to differentiate between numerous past and

present injuries to the trees and their potential causes. Rather, there is only one

injury and, given the highly suggestive surrounding facts detailed above,

determining causation is not beyond the “usual and ordinary experiences” of a jury.

Id. ¶ 13, 923 N.W.2d at 824. Indeed, the Defendants’ proposed alternative causes of

the damage are highly implausible.

[¶47.] First, at the summary judgment hearing, the Defendants suggested

that, because ponderosa pines were not native to the area, the grove was “in rough

shape” as it struggled to adapt to the environment. Although some of the

ponderosas died after planting, the Olsens’ expert specifically noted that, prior to

the sudden damage, the ponderosas were “normal and healthy” and had been

established for over 50 years. Quite simply, these trees were healthy and

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flourishing, not in distress. On summary judgment, where such conflicting

assertions are presented, “[a]ll reasonable inferences drawn from the facts must be

viewed in favor of the non-moving party.” Stern Oil, 2012 S.D. 56, ¶ 8, 817 N.W.2d

at 398.

[¶48.] Secondly, the Defendants argued that a terrible storm in 2013

damaged the ponderosas, causing their decline and eventual death. However, this

ignores Annette’s deposition testimony that she had observed new growth on the

ponderosas in the summer of 2014. It also appears to contradict Defendant

Agtegra’s brief on appeal, which admits that “[t]here was no visible damage to the

trees after the alleged spraying incident in 2014.” 9 To accept the Defendants’

argument that the trees were fatally injured by a storm in 2013, we would have to

ignore the fact that they somehow recovered to such a degree that they were still

growing and showing no damage in 2014 but yet mysteriously died in 2015. Such

difficulty finding a plausible alternative cause of the ponderosas’ damage and death

provides support for the Olsens’ causation argument and weighs heavily against

summary judgment.

[¶49.] In order to avoid this logical conclusion, the majority opinion relies on

precedent from other jurisdictions, most notably Burton v. Theobold, a 1974 decision

from the Iowa Supreme Court. 216 N.W.2d 299, 300 (Iowa 1974). In that case, an

9. The majority opinion continues to misstate the record by suggesting that
“there was no evidence that the condition of the trees Kezar observed in 2015
was any different than their condition prior to the spray incident in October
2014[.]” To the contrary, both parties agree that, immediately after the
spraying, the ponderosa pines did not exhibit signs of damage. However,
when Kezar observed these trees in 2015, they exhibited extensive damage.

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expert stated that while “2,4–D might sometimes kill trees,” he could not offer an

opinion as to whether the herbicide had killed the trees in question. Id. at 301.

According to the Iowa Supreme Court, given that the trees were healthy before the

mistaken spraying, “expert testimony that the damage ‘might have’ or ‘could have’

resulted from the spray” would have raised a question for the jury. Id. But why

should such formalism be necessary to survive summary judgment when a chemical

known to cause harm to ponderosa pines is applied and harm results? 10

[¶50.] Nevertheless, irrespective of any jurisprudential shortcomings, Burton

is inapposite. There, the plaintiff alleged damages because healthy trees died

several months after being sprayed with 2,4-D. Id. Here, there are several

10. The heightened showing of causation in toxic tort cases proposed by the
majority opinion may very well be necessary to prevail at trial. But, as stated
previously, “a belief that the non-moving party will not prevail at trial is not
an appropriate basis for granting the motion on issues not shown to be a
sham, frivolous or unsubstantiated.” Godbe, 2022 S.D. 1, ¶ 20, 969 N.W.2d at
213. Holding that causation in toxic tort cases must be proved as a matter of
law to survive summary judgment would unnecessarily burden plaintiffs and
undermine the limited role of summary judgment itself, especially in cases
like the Olsens’ where strong circumstantial and direct evidence exists to
establish causation at this stage of the proceedings. Notably, in Hanson v.
Big Stone Therapies, Inc., one of the cases the majority opinion relies upon,
this Court found that, despite the lack of an expert opinion as to causation of
the plaintiff’s fractured femur, the jury could reasonably infer from the other
circumstantial evidence that her injury was caused by the alleged deviation
from the standard of care that occurred in one of her physical therapy
sessions. 2018 S.D. 60, ¶ 39, 916 N.W.2d 151, 161. Such evidence included
the plaintiff’s testimony regarding the circumstances and timing of when she
first experienced the pain and the undisputed fact that her femur showed no
signs of fracture prior to this session. Id. So too here, the evidence showing
the Defendants’ deviation from the undisputed guidelines for spraying the
chemical at issue, the testimony regarding the timing of the spraying, and
the observations of Annette and Kezar regarding the condition of the trees
before and after they were sprayed should have been deemed sufficient to
preclude summary judgment in the Defendants’ favor.

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additional corroborating facts. The ForeFront HL label warns that ponderosa pines

are uniquely sensitive to and can be killed by this particular herbicide. The dead

trees outline an area consistent with the alleged spray pattern. David was present

by the ponderosa grove during the spraying, which was so thick that he “smelled

the chemical on [his] person[] and could taste the chemical in [his] mouth.” In

addition, the Defendants were unable to propose a plausible alternative theory of

causation. When all signs point in the same direction, one hardly needs an expert

navigator.

[¶51.] The matter of the Olsens’ ponderosas is a question for the jury as

sufficient factual allegations and evidence have been proffered to survive summary

judgment. For the foregoing reasons, I respectfully dissent.

[¶52.] DEVANEY, Justice, joins this writing.

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