907 N.W.2d 816
S.D.2018Background
- Ronald Jensen, 71, bought seven 4x8 plywood sheets at Menard, employee Weyand loaded them on a single-rail cart (no brakes/locks) and moved them to Jensen’s pickup; plywood leaned vertically and was unsecured.
- While helping guide the sheets into the truck on a windy day, a gust moved the cart, the plywood tipped, and Jensen fell, sustaining catastrophic injuries that rendered him quadriplegic and later contributed to his death.
- Jensen and his wife sued Menard for negligence and loss of consortium; Jensen’s expert testified Menard’s safety protocols were inadequate and a double-rail cart would have been safer.
- Menard asserted affirmative defenses including assumption of the risk and contributory negligence; the court declined to give an assumption-of-the-risk jury instruction but submitted contributory negligence.
- The jury awarded Jensen’s estate and wife approximately $2.3 million; Menard appealed arguing the trial court erred by failing to instruct on assumption of the risk.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by refusing an assumption-of-the-risk instruction | Jensen: no sufficient evidence that Ronald had actual/constructive knowledge, appreciation, and voluntary acceptance of the specific risk | Menard: Jensen knew it was windy, helped load without cane, voluntarily exposed himself to a foreseeable danger so instruction was warranted | Court: No error — evidence did not support assumption-of-the-risk (plaintiff lacked actual or plainly observable knowledge/appreciation of the specific danger) |
| Whether Menard preserved a JMOL ruling on assumption of the risk for appeal | Jensen: trial court never ruled on JMOL, so issue not preserved | Menard: court granted JMOL in chambers and thus preserved | Court: Record lacks a formal JMOL ruling; issue not preserved for appeal |
Key Cases Cited
- Ballard v. Happy Jack’s Supper Club, 425 N.W.2d 385 (S.D. 1988) (discusses when assumption-of-the-risk instruction is appropriate versus hazards from stationary conditions)
- Duda v. Phatty McGees, Inc., 758 N.W.2d 754 (S.D. 2008) (sets elements for assumption of the risk: knowledge, appreciation, voluntary acceptance)
- Ray v. Downes, 576 N.W.2d 896 (S.D. 1998) (examines whether a volunteer’s knowledge of risk raises a jury question for assumption of the risk)
- Magner v. Brinkman, 883 N.W.2d 74 (S.D. 2016) (addresses standard for reviewing sufficiency of evidence on jury issues)
- Stensland v. Harding Cty., 872 N.W.2d 92 (S.D. 2015) (confirms negligence-related issues are for the jury when supported by evidence)