## Facts

- Dallas Schott farmed in north-central South Dakota and operated Corson County Feeders, Inc.
- Schott used agronomy services from South Dakota Wheat Growers Association (SDWG), an agricultural cooperative that recommended seed and chemicals and provided field plans based on services such as scouting and soil testing.
- SDWG provided Schott with annual, field-by-field crop and herbicide recommendations; Schott testified he relied on SDWG and followed its herbicide directions “a hundred percent.”
- Sunflowers relevant to the dispute came in two types: Clearfield and non-Clearfield. The types are not distinguishable while growing, but they require different herbicides.
- “Beyond” is used on Clearfield sunflowers; using Beyond on non-Clearfield sunflowers can injure or destroy the crop. “TapOut” was the proper herbicide for non-Clearfield sunflowers.
- Schott had previously grown non-Clearfield sunflowers and obtained TapOut from SDWG for that purpose.
- For the 2014 season, Schott planted a sunflower crop that included both Clearfield and non-Clearfield varieties.
- SDWG recommended Beyond for Schott’s 2014 sunflower crop, apparently based on SDWG’s impression that Schott intended to plant only Clearfield sunflowers that year.
- At trial, SDWG’s agronomist testified Schott said he planned to plant only Clearfield sunflowers, but the agronomist could not recall Schott’s exact words.
- Schott denied the conversation occurred and testified that, when he planted the 2014 crop, he did not know what Clearfield sunflowers were and did not understand the difference between Clearfield and non-Clearfield varieties.
- After Schott applied Beyond, approximately 1,200 acres of Schott’s non-Clearfield sunflowers were destroyed.
- Schott sued SDWG for negligence, breach of contract, and breach of warranty.
- SDWG moved for summary judgment asserting assumption of risk (and argued related fault concepts), and the circuit court granted summary judgment for SDWG on that basis.

## Issues

1. On SDWG’s motion for summary judgment, did the record establish as a matter of law that Schott assumed the risk of loss from applying Beyond, thereby barring his claims?

## Decision

- The Supreme Court of South Dakota reversed the grant of summary judgment and remanded for further proceedings.
- The court held that genuine disputes of material fact existed regarding whether Schott had the required knowledge of, and appreciation for, the specific risk that Beyond would destroy non-Clearfield sunflowers in the acres he treated.
- Because the assumption-of-risk defense turned on disputed facts and credibility questions (including what was communicated to SDWG and what Schott understood about the varieties planted), the defense could not be resolved as a matter of law at summary judgment.

## Legal Principles

- Assumption of risk requires proof that the plaintiff knew of the risk, appreciated its character, and voluntarily accepted it.
- For assumption of risk, the plaintiff’s actual (subjective) knowledge and appreciation of the specific danger are central; the defense is not satisfied merely by showing a general possibility of harm.
- Assumption of risk is ordinarily a jury question and may be decided on summary judgment only when the evidence permits reasonable minds to reach one conclusion.
- On summary judgment, courts view the evidence and reasonable inferences in the light most favorable to the nonmoving party and do not resolve credibility disputes.
- Evidence that a plaintiff had responsibilities associated with applying chemicals (including label-related duties) may bear on fault, but it does not automatically prove the plaintiff actually knew and appreciated the specific risk necessary to establish assumption of risk as a matter of law.

## Conclusion

Because the evidence conflicted on whether Schott understood the Clearfield/non-Clearfield distinction and whether he knew non-Clearfield sunflowers were present on the acres sprayed with Beyond, the South Dakota Supreme Court held SDWG was not entitled to summary judgment on assumption of risk and sent the case back for a fact-finder to resolve those disputes.


Schott v. South Dakota Wheat Growers Assoc., 906 N.W.2d 359 (2017)