Ruschenberg v. Eliason
850 N.W.2d 810
S.D.2014Background
- Three former employees (Ruschenberg, Cornelius, Rensch) sued manager David Eliason individually and two LLCs (Annabelle’s and Olivia’s) alleging sexual assaults, other sexual misconduct, and negligent supervision/infliction of emotional distress by the businesses. Claims against the LLCs for intentional torts were dismissed on summary judgment; negligent claims remained against the businesses.
- Ruschenberg alleged three rapes (two in Sioux Falls/Tea and one on a business trip to North Carolina), became pregnant, and had an abortion after receiving $450 from Eliason (he said it was a pay advance). She did not report the incidents to police or seek medical care; her complaint included the abortion allegation.
- At trial the court denied plaintiffs’ motion in limine to exclude evidence of Ruschenberg’s abortion, permitting testimony about timing, forms completed at the clinic, and the $450 payment because of probative value to credibility and damages.
- Plaintiffs moved for a mistrial after a witness (Johnson) made an unsolicited remark implying prior criminal proceedings against Eliason; the court struck the testimony, gave a curative instruction that no criminal charges/trial existed, and denied the mistrial motion.
- Plaintiffs sought to amend pleadings and to receive jury instructions applying the “alter ego” (proxy) rule to hold the LLCs vicariously liable for Eliason’s intentional acts; the court denied amendment and instructions because summary judgment had already dismissed intentional-tort claims against the LLCs and plaintiffs did not timely reassert that theory.
- The jury returned verdicts for Eliason and the two businesses on all claims. Plaintiffs appealed the evidentiary ruling on the abortion evidence, denial of mistrial, and rejection of alter-ego instructions; the Supreme Court of South Dakota affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Ruschenberg’s abortion (motion in limine) | Abortion evidence was unfairly prejudicial and should be excluded under Rule 403. | Evidence was relevant to whether rape occurred, witness credibility, subsequent interactions (payment/offers), and damages. | Court: admission was within discretion; probative value significant to credibility and damages; no prejudicial reversal shown. |
| Motion for mistrial after witness referenced criminal history | Witness’ statement injected prejudicial and irrelevant evidence about criminal proceedings; curative instruction insufficient. | Statement was inadvertent; court promptly struck it and gave strong curative instruction; no formal ruling had barred testimony about Eliason’s history. | Court: denial of mistrial not an abuse of discretion; curative instruction presumed effective. |
| Request to amend pleadings to sue LLCs for intentional torts and request for alter-ego jury instruction | Eliason was dominant enough that LLCs should be vicariously liable under the alter-ego rule; jury should receive instruction. | Summary judgment already dismissed intentional-tort claims against LLCs; amendment at trial would unfairly shift theory and prejudice defendants. | Court: amendment denied; no alter-ego instruction. Also, verdict found Eliason not liable on intentional torts, so alter-ego instruction would be moot. |
| Effect of appellee not briefing the appeal | Appellants urged automatic reversal as confession of error. | Appellees (the LLCs) filed a brief; non-briefing by Eliason alone is not automatic confession. | Court: declines to treat non-briefing as confession; decided appeal on merits. |
Key Cases Cited
- Benson v. Goble, 593 N.W.2d 402 (S.D. 1999) (describing alter-ego standard for imputing supervisor conduct to entity)
- Birchfield v. Birchfield, 417 N.W.2d 891 (S.D. 1988) (discussing consequences of appellee failing to file brief)
- Matter of Guardianship of Gallop, 453 N.W.2d 616 (S.D. 1990) (court discretion not to treat appellee’s failure to brief as confession of error)
- Hawkins v. Peterson, 474 N.W.2d 90 (S.D. 1991) (appellee’s failure to file brief does not automatically result in appellant victory)
- Supreme Pork, Inc. v. Master Blaster, Inc., 764 N.W.2d 474 (S.D. 2009) (standards for reviewing evidentiary rulings and prejudice under Rule 403)
- Nichols v. Am. Nat’l Ins. Co., 154 F.3d 875 (8th Cir. 1998) (abortion evidence held minimally probative and highly prejudicial in employment case)
- Nickerson v. G.D. Searle & Co., 900 F.2d 412 (1st Cir. 1990) (excluded abortion-related evidence as irrelevant to expert qualifications)
- State v. Dillon, 788 N.W.2d 360 (S.D. 2010) (presumption that juries follow curative/admonitory instructions)
- State v. Fool Bull, 745 N.W.2d 380 (S.D. 2008) (trial court discretion on mistrial determinations)
- State v. Phair, 684 N.W.2d 660 (S.D. 2004) (mistrial requires showing of actual prejudice)
- Sander v. Geib, Elston, Frost Prof’l Ass’n, 506 N.W.2d 107 (S.D. 1993) (appellant’s burden to show prejudicial error)