929 N.W.2d 96
S.D.2019Background
- Shirley Tammen slipped on ice in the Fryn' Pan Restaurant parking lot between two parked cars on Jan. 31, 2014; she later required wrist surgery and sued for negligence.
- The Restaurant contracted First Rate Excavate to remove snow/ice; First Rate plowed and applied chemical sand on Jan. 30 but did not (and could not) sand between parked cars.
- Restaurant managers inspected the lot the morning of the fall but did not specifically walk the exact area where Tammen fell and did not instruct employees to clear between parked cars.
- Tammen sued claiming the Restaurant failed to keep the parking lot safe; the Restaurant pleaded lack of negligence and contributory negligence (assumption of risk was struck).
- At trial the jury found the Restaurant not negligent; Tammen appealed, arguing the trial court erred by refusing several of her proposed jury instructions on negligence, the reasonable-person standard, invitee duties (inspection/warning), and nondelegable duty.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of general negligence instruction | Instruction omitted that negligence is a breach of a legal duty; jury left too much unanchored discretion | Court's pattern instruction accurately told jury to decide what a reasonable person would do under the evidence | Affirmed — instruction accurate; refusal to add plaintiff's wording not error |
| Definition of "reasonable person" | Court should give expanded, Restatement-style, external objective definition | Pattern instruction already described qualities of a reasonable person; amplification unnecessary | Affirmed — court's definition sufficient; refusal to amplify not error |
| Duty owed to business invitee (inspection/warning/subduties) | Requested instructions spelled out duties to inspect, discover, warn, and contrasted business invitee to household possessor | Court's instruction that possessor owes invitee ordinary care adequately states duty; plaintiff's requests contained inaccurate/overbroad language | Affirmed — court's instructions as a whole correctly stated law; court not required to rewrite or remove misleading language |
| Nondelegable duty re: independent contractor snow removal | Jury should be told duty remains nondelegable despite hiring contractor | Restaurant did not argue it delegated its duty to First Rate; evidence placed ultimate responsibility on Restaurant for areas between cars | Affirmed — refusing instruction proper because delegation was not the defense and evidence showed Restaurant retained responsibility |
Key Cases Cited
- Carlson v. Construction Co., 761 N.W.2d 595 (S.D. 2009) (trial court may refuse substantively incorrect or duplicative requested instructions)
- Kryger v. State, 907 N.W.2d 800 (S.D. 2018) (no requirement to amplify instructions that substantially cover requested principle)
- Vetter v. Cam Wal. Elec. Coop., Inc., 711 N.W.2d 612 (S.D. 2006) (review instructions as a whole under de novo standard)
- First Premier Bank v. Kolcraft Enterp., Inc., 686 N.W.2d 430 (S.D. 2004) (instructions construed as a whole to determine if full and correct statement of law given)
- Janis v. Nash Finch Co., 780 N.W.2d 497 (S.D. 2010) (duty to invitee is ordinary care; foreseeability relevant to duty)
- Nugent v. Quam, 152 N.W.2d 371 (S.D. 1967) (discussion referencing Restatement definition of reasonable person)
- Mitchell v. Ankney, 396 N.W.2d 312 (S.D. 1986) (instructions on subparts of duty to keep premises safe may be warranted depending on facts)