Barger v. Cox

161 Co., age) may York helpful jury, same be Insurance 30, 35, 69 S.D. 6 Life especially is extremely child 162, (1942). where N.W.2d 164 Finally, any factu- Myers, See State v. young. 359 N.W.2d al weight deficiencies relate to the of the 604, (Minn.1984). 609-11 Advanced sexual testimony admissibility. and not its Buck- knowledge is a trait commonly by exhibited ley, supra 772. sexually abused children and has been rec- ognized in South Dakota.1 Id. More im-

portant, discussion this characteristic is topic appropriate expert

an for an witness jurors

since expected cannot be to rely on knowledge

common experience con-

cerning physical mental condition four-year-old

of a sexual abuse victim. See Kim, 64 598, State v. Hawaii 645 P.2d BARGER, Helen As Guardian Ad Litem 1330, (1982). 1337-38 must We take care for and General Guardian of the Per- not to diminish foreclose evidence of this Jay WARES, son and Estate of Samuel ipajority opinion nature. The labels this Incapacitated Person, an Plaintiff and evidence as corroborating credibili- Appellant, ty of the as a appro- child witness. Under circumstances, priate be should admitted v. relevant, independent material evidence COX, Raymond Special Administrator of of sexual abuse.2 Guy Cox, Estate Steven De- Clearly, judicial there was no abuse of ceased, Inn, Inc., A discretion in qualifying the social worker as Corporation, South Dakota Defendants J.L.H., In re expert opinion. 316 Appellees. 650, (S.D.1982). Further, N.W.2d 651 No. 14422. knowledge four-year-old sexual vic- proper subject expert tim was a testi- Supreme Court of Dakota. South mony pro- because the social worker could Argued 24, Oct. 1984. jurors peculiar knowledge vide the “with experience, 31, July not common Decided 1985. world.” Huebner, 481, 28, 1985. Wentzel v. 493-94, 78 Rehearing Aug. S.D. Denied (1960) (quoting Taylor 104 N.W.2d Monroe,

v. Town 36, 44). See 43 Conn. Fredericks, also Buckley 291 N.W.2d Hall, (S.D.1980); 73 S.D. Walthoff (1950). N.W.2d The social

worker’s opinion necessarily was not con-

clusive. DuPratt v. Black Land Hills Co.,

Abstract 637, 642, bound expert’s opinion. Robinson v. New Petrich, young unlikely graph ty); 1. "A child to fabricate a State v. 101 Wash.2d 683 P.2d activity (1984) ic account of sexual such (credibility young alleged because activi very of a ty beyond experience." realm of his or her may sexual abuse victim-witness an inev- (S.D. McCafferty, State issue); Middleton, itable see central also State 1984). (1983) (much expert 294 Or. P.2d testimony to reflect tends on a certain witness’s 2. Other states have faced similar issues recent that, itself, credibility not render will emerged. child No abuse cases. clear trend has inadmissible). People Compare, evidence (Minn.1984) Myers, See State v. Roscoe, Cal.App.3d Cal.Rptr. (expert testimony typical- on the characteristics (5th D.Cal.Ct.App.1985) diagnosis (expert’s ly sexually found in said abused children to be inadmissible). boy as molestation victim held only collateral evidence on the victim’s credibili- Johnson, Jerry D. Johnson of Banks & City, appellant. Rapid plaintiff for Costello, Porter, R. Bushnell of Gene Nelson, Bushnell, Hill, Heisterkamp Rap- & Ray- City, appellee id for defendant and mond Cox. Jackson, Lynn, R.

Donald Shultz Lebrun, Rapid City, & defendant Shultz Inn, appellee Inc. (on reassignment). WOLLMAN, Justice negligence appeal This involves of an auto- injuries arising out personal early accident that occurred mobile 10, 1978, morning hours of June cabins. any problem U.S. Neither had she had Highway 85 near Lead Lawrence Coun- with the employees drinking alcohol- ty. Appellee Raymond special Cox is the beverages ic either 1977. son, administrator of the estate of his Ste- imposed specific Woodworth had curfew Cox, Appellant, ven deceased. Helen Bar- in terms lights of a time when had to ger (Barger), guardian ad litem of out, assuming be turned that because the son, her Samuel Wares. The trial court minor employees worked so hard they granted for summary defense motions go early. practice to bed It was her judgment appellee Raymond in favor of to check the every cabins once two weeks Latchstring Inn, appellee Cox and Inc. addition, parents so. In of the minor (Latchstring). We affirm. employees usually checked the cabins for they pick up cleanliness when came to their The pleadings, depositions, and answers children on their days off or on payday. interrogatories following established Woodworth found beer liquor no bottles facts. in the cabins either in 1977 or in nor Latchstring in Spearfish is a resort Can- any did she find drugs. evidence of Wood- yon community near the Savoy. small worth knowledge had no the male cabins, of fourteen consists employees minor any parties had had in restaurant, shop, souvenir shop, coffee their boys cabin or any had from town visit lounge liquor. for on-sale At the time of during them 1978. The time that she question, the accident in Judith Woodworth visited the employees’ minor in cabins (Woodworth), husband and whose mother- evening was complaints when she received in-law owned all of the shares of the corpo- from the tourists the music from the ration, secretary-treasurer was the employees’ stereos was too loud. manager Latchstring. May On evening On the of June Wood- (Wares), Woodworth hired Wares Samuel living quarters worth went to her after sixteen, age student, High a Lead School getting p.m., off work at 8:00 which was yard a dishwasher and worker. Wares closing time. approxi- She went bed at worked weekends until the end of the mately p.m. nothing 9:30 heard further year, school at which time he was allowed morning, until 6:30 the next when someone stay in a cabin reserved Latchstr- brought her news of accident. ing’s separate minor male A employees. cabin was Latchstring’s reserved for minor 9,1978, Hyde (Hyde) On June Robert employees. female Troy Lipp boys Lead, (Lipp), two heard there was party Latchstring. imposed Woodworth several restrictions purchased six-packs beer, They two ar- Latchstring’s employees. The rived at Latchstring between 8:30 and 9:30 male and employees female were not to p.m., occupied and went a cabin “mix” in compliance the cabins. To insure employees, Wares and three other minor rule, with housed the Woodworth fe- seventeen, (Cox),age Steven Cox Brian Sie- male employees grounds on one side of the (Sieveke), veke Hyde and Darwin Johnson. other, and the males on the with Wood- already testified that there was beer at the residing worth in between a cabin them. cabin and that Wares intoxicated when employees Minor could have automobiles at Hyde Lipp During arrived. eve- Latchstring only parents agreed. if their Wares, Cox, ning, Lipp Hyde, and smoked They beverages, were not to alcoholic drink marijuana. whiskey, Wares drank while any drugs found were the minor the three others drank beer. employees Their would be fired. cabins kept clean, they to be were were not party early into continued morn- allowed to have their friends from town in ing hours of June but came to a cabins. their fell, halt when and dislocat- tripped, Wares elbow, any problem protruded Woodworth had ed his as a result had not girls mixing boys with with the in their of the fall and caused Wares to scream in Lipp that when he and Jeep Hyde in or- testified pain. Cox borrowed Sieveke’s cabin, already Sieveke was Lead. at the hospital arrived to take Wares to der at ap- went to bed fifty and that Johnson bed drive under instructed Cox Sieveke vehicle, p.m. There was door proximately 11:00 per drove the miles hour. Cox and the opening between bedroom on the passenger front seat Wares with Hyde testified that living room area. also testified Hyde Hyde the rear. Lipp and nothing that would indicate he knew of they set out at the time was sober that Cox Lipp had idea he that Woodworth hospital. the others in the cabin with Cox and Lead toward young proceeded men night of June 9-10. unin- Highways 85 and 14A. Cox via U.S. several tentionally the center line crossed I. many negotiating the curves times safe highway. driving Cox was within Action Cause Guardian’s limits, compli- Hyde Lipp speed Hospital Expenses Medical and driving. did him on The vehicle mented has Barger she contends that on the squeal swerve nor did the tires recovery for medical independent right of Lipp out for told Cox “watch curves. by her hospital expenses incurred on Curve,” respond- Hyde to which Deadman’s injured child that survives a of her behalf it. by telling worry not to about ed Cox recovery our for the child’s under bar to Wares, yelled at pain, who in extreme was statute, SDCL 32-34-1.* In guest mer to drive faster. Cox granting summary defense motion for fif- proceeding fourteen or After some issue, however, the trial judgment on the Lead, ap- group teen miles towards Barger’s recovery right held that court “Dead- locally known proached what is a new cause is derivative in nature Jeep entered man’s Curve.” As therefore, and, ap 32-34-1 of action SDCL per hour at between 45 to 60 miles curve agree. to her claim. We plied or 40 (the posted speed limit was either 35 number courts have held that a A began rear to slide around. mph) its end right consequential of action for parent’s enough Jeep long straightened the out Cox negligent in- damages incurred because of The Lipp say they had made it. cause child, although from the jury to distinct flipped suddenly over on then vehicle action, right there- child’s derivative road, side, into and went skidded across upon inasmuch as it based from Lipp were killed a creek. Cox and negligence caused arises out of the which nothing remembers about accident. Wares See, Pruett, injury. v. e.g., Warner leading to the accident. circumstances (Mo.App.1980); 207 599 S.W.2d O’Hearn at he had been Hyde 766, testified that O’Hearn, N.Y.S.2d 651 55 A.D.2d 389 prior five occasions on some (1976); Telephone v. General Whitehead 1978, he 108, during on three of occasions Co., N.E.2d 10 20 Ohio St.2d 254 beverages drank alcoholic (1969); and the others 59 Am.Jur.2d Parent and Child marijuana. (1971). parent On one occasion Consequently, smoked § premises in the Hyde on the has was unless child also while cannot recover Curry, came to the cabin evening, good Woodworth cause of action. Welter (1976); 287, mu- to turn Bias young men down 260 Ark. 539 S.W.2d told N.W.2d 233 Ausbury, Mich. sic. He further testified that N.J.Super. (1963); Schipler, being played Fekete v. the music (1963); Dudley v. Phil- carry 194 A.2d 361 permitted them to level 405 S.W.2d lips, Tenn. conversation. * 1978). (S.D. repealed by 1978 S.D.Sess. SDCL 32-34-1 was Herseth, Nist Laws ch. 2. See § Pomeroy, In the basis of wrongful Irlbeck v. where the claimed (Iowa 1973), similar instant a case is the conduct failure of defendant to action, Supreme held that the Iowa Court steps take certain to prevent the child although guest passenger suffering injury, parent cannot question, guest in the vehicle in Iowa’s unless recover that failure constituted a statute was not defense to the mother’s legal wrong to the child. services, action companionship for loss of Harrison, Accord: Tisko v. 500 S.W.2d 565 society. The Court stated: (Tex.Civ.App.1973). A true action is which a derivative analogy is an There to the situation person may wrong institute to redress a where husband and wife have causes of done Our statute to another. survival injuries action for to the wife. In Callies example. is an Code 611.20 The § Co., Laundry Reliance Wis. accruing injured fatally action to a (1925), N.W. it was stat- person survives his death and is main- ed: by representative,

tainable his estate subject defense which have could parent support law against been raised the decedent.... and care his child. In return for the action kind present is not that performance obligation, of such the law derivative action.... gives parent right part “* * * wrongful negligent the child’s cause of case he is [T]he gives

death of a minor in Iowa to injured rise negligently by another. So also action, two causes of one on behalf of since the husband support in the minor’s administrator for those gives the law him part wife likewise a juries personal are which to the dece of the wife’s cause of in action case she dent, 611.20, on section the other be negligently injured by another. This half of the father for loss of services splitting up of the cause action result- during minority expenses and incurred ing damages being in some of the given injuries, account those rule 8. parent, and the child some to the or some brought under are not Actions rule 8 husband, wife and the to the some to injury the to the the child but for solely parental due to the and marital consequence injury to the as a father existing par- relations between the child_ injury the the Ward _ ties But for such relations and obli- Keokuk, City low v. N.W.2d [190 gations damages the entire would belong 1971) (Iowa supra. [Empha ] child or wife[.] sis by added the Iowa court.]” Miller, (S.D. In Titze N.W.2d may Although N.W.2d at 832-33. be 1983), we classified a husband’s cause of say correct to that actions this are such as loss of as derivative action for consortium truly that the derivative sense nature, though right in even of consor person hospital who incurs the medical and personal separate right tium is i.e., expenses, parent, person is the injured cause If the distinct of action. injured, injury nonetheless that out arises spouse is unable for his to recover own consequence of and is a injury personal injuries, the cause action of the Audette, child. As stated Shiels other for loss of consortium also fails. Bit (1934): Conn. 174 A. Inc., Stores, F.Supp. sos v. Red Owl person An which act or omission of a (D.S.D.1972); Budahl Gordon causes a loss of services of a Associates, (S.D. David & expendi- parent, child to a or necessitates 1980); Hasvold, 86 S.D. Wilson child, injury tures to cure an done to the N.W.2d damages parent entitles the to recover conclude, therefore, the trial We appears when it that the act or omission legal ruling correct in our former is one which law holds to court was this, Barger’s wrong.... guest operated such a as a bar to case as statute [I]n negli- which transcends hospital expenses. scribes conduct for medical gence is different kind charac- court’s Accordingly, we affirm trial partakes It is which teristics. conduct summary judgment on this issue. extent, though appreciable not en- some tirely, deliberate and nature II. wrong. There must be facts intentional Guest Statute Defense inten- that would show defendant Barger’s contention is that the next operation something in the tionally did law ruling a matter of erred in court the motor vehicle which he should ques- operation of the vehicle that Cox’s intentionally have or failed to do done and wanton not constitute willful tion did something he should done which .have misconduct. under that it can be the circumstances consciously said he realized that his provided: 32-34-1 SDCL probability, would in all as distin- conduct transported by the person owner No possibility, guished produce pre- from guest as his of a motor vehicle operator produce which it cise result did transpor- such compensation for without bring plaintiff. harm to Willful dam- shall have of action for tation an misconduct demonstrates .wanton operator for against such owner or ages affirmative, reckless state of mind or accident, loss, death, case of injury, part deliberate recklessness been shall have unless such accident Mattern, 85 defendant.... Brewer v. willful and wanton miscon- caused (1970)[.] operator of such of the owner or duct The record that there are no is-clear vehicle, and such willful motor unless finding support facts that would Cox wanton contributed misconduct guilty of miscon willful wanton death, injury, or loss joy an ride duct. was not on aimless Cox brought. action is Rather, he for thrills and excitement. operation passenger To exclude injured trip made friend to take guest statute losing attempting hospital, his own life (1) must bene- driver receive some [t]he mercy. Al accomplish mission of to in transportation, from either or fit alone to watch out though had been warned Cox with his rider and such benefit common Curve,” record indi the for “Deadman’s real, sufficiently tangible, and must be occupants none the com cates that of inducing to serve substantial driving he too fast or plained that transportation operate as to to of the so Indeed, Hyde Lipp compli recklessly. completely overshadow considera- driving. Wares himself mented him on his growing out of hospitality tions of mere Although implored Cox to drive faster. (2) the friendship relationship, or the or smoking drinking beer and had been Cox caused injury or have been accident must marijuana, Hyde, only who tes the witness of by the willful or wanton misconduct condition, ap that Cox tified to his stated operator the owner or of the vehicle. of these peared to be sober. On the basis facts, then, aggravated far which are less Brodock, 460 N.W.2d Tranby v. 348 supra, in in which we Tranby, than those Zavadil, (S.D.1984), citing Lukens of action was barred held that the cause (S.D.1979). N.W.2d statute, the guest we hold that parties issue with do take granted summary judgment properly court in vehicle. guest was a fact that Wares on this issue. only Accordingly, determine we need guilty willful wan- Cox was whether III. Tranby, As stated in ton misconduct. we Against Latchstring Action Cause supra, at 461: Barger argues that the trial Finally, misconduct means Willful and wanton summary judgment granting in It de- court erred something negligence. than more Latchstring basis duty favor of on the of its There is no so to control the con- person prevent had no duct of duty determination a third as to him causing physical to supervise control the conduct of its harm another unless they while employees on its premises working (a) after hours. special relation exists between the actor person third which Lavielle, In Erickson imposes duty upon the actor to control (S.D.1985), holdings reiterated we our person’s conduct, the third or duty part of a existence care (b) special relation exists between plaintiff of a is an defendant essential the actor and the gives other which See, negligence element of action. e.g., right protection. other a Bonesteel, N.W.2d City Leslie v. special “The relations to in referred clause (S.D.1981); Inc., v. Straight’s, Johnson (a) are (Second) found [Restatement (S.D.1980); Cuppy Bunch, N.W.2d ” 316-3Í9 — Cuppy Bunch, Torts] §§ (S.D.1974); 88 S.D. 88 S.D. at 214 N.W.2d at 788. Section Barrick, Ecklund v. S.D. provides: (1966); v. Eggers, Stoner A master is under a duty to exercise reasonable care so to control servant concepts duty and the standard of acting while outside scope of his em- care plaintiff owed a are distinct but inter- ployment prevent toas him from inten- dependent: tionally harming others or from so con- “duty” It is better reserve for the ducting as to himself create an unreason- problem the relation between individu- bodily them, able risk of harm to imposes upon legal als which obli- (a) the servant gation other, benefit of the and to (i) upon premises possession is particular deal with terms conduct of a upon the master or serv- legal required standard of what is privileged ant is to enter as his obligation. words, meet In other servant, or “duty” is a of whether the de- (ii) using master, a chattel any obligation fendant under for the particular plaintiff; benefit of the and in (b) the master cases, negligence always (i) knows has reason to know that legal same—to conform to the standard ability he has the to control his serv- light reasonable conduct of the ant, and apparent What risk. the defendant must (ii) knows should know the ne- do, do, or must not is a cessity opportunity exercising satisfy standard of conduct such control. duty. one The distinction is of conve- Latchstring The trial court held that only, nience and it must be remembered knowledge ability had no that it correlative, had the that are and two employees control its or that it should cannot exist without the other. necessity opportunity know of for and Prosser & Keeton on The Law Torts of conclude, exercising such control. We (5th Ed.1984). at 356 See v. § Goff however, by imposing that restrictions on (S.D.1981). Wang, 296 N.W.2d 729 employees, including its the ban minor of duty ques is a The existence a use, Latchstring drug recog alcohol tion of law to determined the court. ability nized that control its it had Lavielle, supra, and Erickson v. authori necessary minor and that employees it was therein; Prosser, supra, ties cited § By such volun it to exercise control. 236. tarily assuming exercising such con (Second) trol, duty Latchstring super Restatement of Torts assumed § Lavielle, (1965) provides: supra; v. vision. Erickson Cf. judgment is Moon, 77 the movant entitled S.D. v. Silver Steckman 15-6-56(c). We have law. (1958). matter of SDCL N.W.2d 170 an affirmance of adopted principle in the decide whether ab We need not summary grant judgment a trial court’s exercising sence its affirmative any proper is if there exists basis the after- supervision and control over ruling. support Ruple would court’s employees minor hours activities (S.D.1983); 328 N.W.2d 857 Weinaug, legal under Latchstring been would have Delzer, Casualty Co. Maryland note, We do duty to do so. ly-imposed (S.D.1979). however, in the case that the minors before technical, persons could re not differ only were Reasonable us “children” to be drawn from certainly garding were the conclusion legal of the word and sense due, Latchstring was presented, say, the solicitude facts not entitled to entry accordingly of summa four-year-old child. v. Don entitled See Schroeder Co-op (1961). ry lin, judgment. Myers 111 N.W.2d 609 Lennox 79 S.D. (S.D.1981). Ass’n, employees employed minor 307 N.W.2d 863 Nor were the engage highly dangerous in a permitted to summary is affirmed in its judgment Latchstring’s activity premises. on Bu Cf. entirety. Falls, 77 S.D. City Sioux cholz (1958). enough It is for the C.J., J., FOSHEIM, MORGAN, con- to hold that purposes the case before us cur. had Latchstring recognized that it HENDERSON, J., WUEST, Acting employees and its minor of control over Justice, dissent. it had undertaken to exercise HENDERSON, (dissenting). Justice control. questions I the reasons that believe For There remains whether determination, I jury’s fact existed negligent exercising respectfully dissent. employees. its minor control over presented no evidence that Plaintiff SUMMARY JUDGMENT finding that Woodworth support Summary judgment properly awarded aware, aware, or should have been depositions, “if pleadings, answers Wares and file, interrogatories, admissions on to- companions violating the rules that were affidavits, show gether any, with the drugs. prohibited the use of alcohol or issue that there is no as to the young Woodworth had made it clear to moving party material fact absolutely they men that forbidden law.” judgment as a matter of entitled beverages drugs. to use drink alcoholic 15-6-56(c) Al- (emphasis supplied). SDCL course, prohibitions were, These also summary judgment appropriate though imposed upon employees as a litigation, it is types generally all 35-9-2; law. matter of state SDCL See negligence actions. Wilson suitable in 35-9-4; ch. 22-42. As we indicated SDCL Co., 212- Ry. Great Northern above, the minors were children within 19, 22 This is be- legal They definition of that term. contributory negligence, cause issues responsible individuals and were treated as cause, proximate re- negligence, and other expected In in turn were to act such. lated issues they any knowledge of the absence ordinarily of and it questions fact are so, Latchstring not doing not should judge must a clear case before be monitoring charged with of be from taking is these justified issues 24-hour-a-day their behavior on basis. only It is when evidence jury. men can draw but proper such that reasonable Summary judgment is when facts and inferences genuine fact one conclusion from there issue of material

169 they become a matter of law the negligent injury of a separate, child ais rarely. this occurs distinct, independent of action that vested the child itself. See at 22 (emphasis supplied). 157 N.W.2d As Alabama Farm Bureau Cas. 1984, Mutual Ins. 12, recent as December this Court Williams, (Ala.Civ. Co. v. 365 So.2d 315 stated in 359 Royer, v. N.W.2d Hoffman App.1978); 387, 287, v. (S.D.1984): relating Curry, to Welter Ark. “Questions 390 260 (1976); 539 Curtis, S.W.2d 264 negligence negligence contributory are Botelho 493, questions Conn.Supp. (1970); by of fact for determination A.2d 675 except Shelby of Tucker all the rarest instances.” Mutual Ins. Co. Shel of Ohio, (Quoting Stonecypher, by, (Fla.App.1977); Stoltz 343 So.2d 1357 654, (S.D.1983)). When ad- Jones City Council Augusta, 100 of dressing summary judgment, a motion for Ga.App. 268, (1959); 110 S.E.2d 691 Rader (1) it is to be remembered that evidence Collins, 227, Ind.App. 161 N.E.2d must most be viewed favorable the non- (1959); Lane, 132, Zarba v. 322 Mass. (2) moving party; has the movant the bur- (1947); 76 N.E.2d 318 City Walter v. proof clearly genu- den show that no Flint, Mich.App. 613, ine issue of material fact exists and that he (1972); Niemotka, Friedrichsen v. 71 N.J. law; judgment is entitled to matter of as a 398, Super. (1962); 177 A.2d 58 Grange v. (3) summary judgment is not substitute Yorkshire, 752, Town 22 A.D.2d any genuine a trial on merits when (1964); N.Y.S.2d 719 Indem. Travelers Co. (4) exists; issue of material fact a surmise v. Godfrey, 12 Ohio Misc. 41 Ohio nonmoving party prevail not will at Op.2d 166, (1967); N.E.2d v.Wolff appropriate trial is for granting basis DuPuis, (1963); 233 Or. 378 P.2d 707 on issues motion be friv- shown Little, Meisel v. Pa. A.2d sham, olous, or so unsubstantial that it is (1962); Piacente, Trotti v. 99 R.I. them; try obvious it would be futile (1965); A.2d 462 Royce, Hall v. 109 Vt. (5) summary judgment is an extreme (1937). Thus, 192 A. 193 remedy which should be awarded injury a minor gives child rise to [a]n when the truth is clear and reasonable action, two causes one on behalf doubts as existence is- pain suffering, permanent child for sues of material fact should resolved injury, impairment earning capaci- against the movant. 157 N.W.2d 21. ty attaining majority, after other on Further, 6, 1984, June this Court stated parent behalf of the for loss of services Deering, Nemec v. 55-56 treatment, during minority, expenses (S.D.1984), “[ojrdinarily, whether a de- damage.... other elements of fendant has breached the stan- 67A C.J.S. Parent and at 518 Child § dard of care fact for object parent’s of the cause of jury.” If the reader will review these re- recovery action expenses is the which principles cent cases and the established parent paid has and services which the Wilson, result, a manifest conclusion will lost, parent object has while the namely, that the facts events of recovery child’s cause of action is a for the cry of maimed death bodies and out personal injury upon being. inflicted jury’s for a deliberation. parent’s brought action is not foregoing With the Court-enunciated child, injury brought but instead is mind, principles in I address the issues injury, wrong, for the or loss suffered presented herein. parent consequence the child’s as a injury. principle particular- This should be BARGER’S CAUSE OF ACTION FOR 25-5-7, ly applicable MEDICAL in view of AND HOSPITAL SDCL provides: EXPENSES legitimate mother parent’s A cause of for medical The father and of a expenses enti- hospital equally incurred because of unmarried minor child are service, earnings. driving He was warned while intoxicated. custody, and tied to Jeep fifty per dead or to over miles the father or mother be not drive If either custody aban- Jeep take or has excess of operated to hour. Cox refuse family, or her the other doned his over the center speed limit and crossed service, earn- custody, and entitled to its It negotiating curves. was dark line while ings. early morning and Cox was in the and curved, driving steep, downhill down parent’s cause of action Although 85 and 14A. Cox was grade Highway distinct, independent from separate, but contin- warned about Deadman’s Curve child, in the it is still injured that vested speed limit. The skid ued to exceed the that could raised subject to defense scrape mea- marks left on road negate of a cause of action the existence 67A C.J.S. Parent feet and vehicle injured child. sured total 143, Thus, (1978). Further, Bar- extensively damaged. at 528 and Child § (brought by the ger’s suit mother initially investigated the ac- Patrolman who organic guardian of Wares who suffers Investiga- in his Officer’s cident indicated by the damage) negated brain could be Summary of Vehicle Accident tion Motor driving on if Cox’s guest former statute primary cause the accident was that the was not willful “Speed Driving.” —Reckless I Because would wanton misconduct.* Construing favorably most above hold, below, as outlined (the nonmoving I Barger party), am unable driving fact exists as to whether Cox’s to find such a clear case reasonable misconduct, wanton constituted willful and wit, conclusion, to men could draw but one summary I reverse the trial court’s would vehicle not operation that Cox’s of the judgment the former determination misconduct willful and wanton Barger’s guest barred claim. statute held. majority court and have so On contrary, genuine question fact does if a QUES- GUEST STATUTE DEFENSE — exist, hold men I would that reasonable TION OF REGARDING FACT conclusion, wit, could draw but AND MISCONDUCT WILLFUL WANTON operation of willful Cox’s the vehicle was above, operation As if Cox’s stated and wanton misconduct. 10, 1978, Jeep on June did not amount misconduct, Barger’s Although willful and wanton speed excessive alone is by the cause be barred constitute wanton sufficient to willful guest The trial court Hauck, former statute. misconduct, 78 S.D. Mitzel found issue existed as (1960), coupled speed, with 105 N.W.2d misconduct Cox’s willful wanton dangerous knowledge road warning determina- majority would affirm that conditions, guest is relevant statute light tion. In of the facts as adduced and sufficient to establish reckless cases however, summary judgment hearing, Elliott, 244 Iowa ness. See Anderson v. light of sum- and in our Court-enunciated (1953); Tucker v. Heav 57 N.W.2d mary principles, I judgment dissent. (1957); erlo, 249 Iowa Fleser, 340 Mich. Horton smoking drinking Cox beer and had been Here, the effects of intoxicants marijuana embarking the fatal before marijuana, coupled driv with excessive Although companions journey. one of sober, speed, dangerous conditions and ing had road Cox Cox appeared testified that thereof, as- knowledge warning most .13 and thus was a blood alcohol content of * Harrison, (Tex. (1963); holding parent’s S.W.2d 565 of action Tisko v. For cases guest Royce, application Civ.App.1973); of a statute to A. 193. be barred and Hall v. Audette, action, Contra, (Haines, Shiels, Judge, the child’s cause of see Shiels v. A. at 326 Sells, (1934); Lynott Conn. A. 323 Pomeroy, 210 dissenting part), and Irlbeck (1958); 52 Del. 158 A.2d 583 1973). (Iowa Whitfield Bruegel, Ind.App. 190 N.E.2d question of suredly supposed created a fact concern- to mix stay but were to their cabins; ing separate (2) willful and wanton misconduct which cars only were allowed parents (3) apparent agreed; drinking; (4) the should resolve. It is that the no drugs; (5) no no friends from town in majority opinion substitutes the defense of the cabins; (6) the cabins to kept as were be assumption the of the risk a bar to the clean and inspected every would be other willful and wanton misconduct of rules, I surmise, week. These imple- were repre- action. There is no doubt that the only mented not insure orderly oper- to law, every right, sentatives of Cox have Latchstring, ation of but to cajole teen- prove plead up assumption to an agers’ parents who obviously would not indeed, Perhaps, risk defense. de- such a permit their placed during children to be fense is classical under these facts. More- summer a marijuana/alco- over, hypothesize can theorist law hol/sex/orgy in relatively portion remote defense, facts, that such a under these of the Black Hills for fear their children palatable to justly jury. be addicted, raped, would be mugged, impreg- However, majority to assume that nated, killed, kidnapped, or that some other assumption risk so facts are disaster would Having befall them. con- strong they estop prima that facie case implemented rules, structed and these misconduct, willful and wanton is an aca- estranged teenagers these from other su- It begs, demic flaw. before one scintilla of pervision, Latchstring duty had a of care adduced, proof acceptance a total anof respect safety. with question their affirmative defense. Even where evidence thus becomes: Did trial court err when i.e., produced, has been where one has side ruled, law, it a matter swing had a chance to at the ball before issue fact in regard existed to Latch- court, they are thrown out of we have held: string’s duty violation of owed? “Questions assumption risk Believing question exist, of fact did I contributory negligence ordinarily jury are would reverse summary court’s questions, it and is when the are facts judgment order. As I authority, rely on of such a nature there can be no law in settled this state that reviewing “[i]n disagreement that the should summary judgment, order for this Court jury.” Berg Sukup submitted must consider light the evidence in a most Co., (S.D.1984). Mfg. favorable non-moving to the party_” Here, plaintiff/appellant was called “out” Wang, Goff got before she plate. (S.D.1980). Acting points As Wuest out in his Justice OF LATCHSTRING’S DUTY CARE- herein, dissenting opinion duty super- QUESTION OF FACT teenagers discharged by vise cannot be REGARDING ITS VIOLATION merely establishing set of and then rules agree I Although most failing compliance. After im- check on assuredly supervision assumed and control stated, plementing the rules hereinbefore over the after-hours of its teen- activities high (May between the end school age employees, and thus owed a 27) (June night of and the the accident care, disagree majority ruling I with the 9-10), approximately days, thirteen three that a of fact does not exist as a parties boys’ were held cabin at concerning Latchstring’s matter of law vio- Latchstring. parties, At all three booze duty. lation of that smoked, consumed, marijuana was Here, effect, Latchstring, “mixed,” sold a bill girls boys teenagers goods parents teenagers to the these present, were music was town loud good, played. During parties, showed clean these operation teenagers Woodworth, Latchstring’s manager, and that the were to in re- abide provid- sponse guest complaint, certain rules. These rules went (1) boys girls ed that them the music boys’ keep cabin and told however, my opinion, actually did not control.” It is If Woodworth down. in dis- taking negligent was place at whether were know such activities duty is charging that a factual It Latchstring, have known. she should jury. the supervise responsibility to these was her recognizes teenagers; majority opinion the young peo- The majority refers these Latchstring— Woodworth—on behalf legisla- ple technically “children.” The duty of care and control had undertaken a minority designated age ture has parties These three teenagers. these over desig- not and the court should amend that duty 'of care and control suggest that the age a real child nation. At what does ordinary care. not meet a standard of did technical, legal become a child? business, reasonable, en- prudent No Capacities vary greatly, of children tol- responsibility, would charged with such age but also with individuals with wild, condone, em- erate, raucous permit objective age. the same standard premises. From parties on ployee person prudent does not reasonable reasonably that facts, may inferred it minor, but, rather, apply special to a or should have either knew Woodworth (subjective) used which standard care is closely in going on this what was known age, intelligence, ex- takes into account Hills confined, in the Black isolated area perience, capacity. Siepman, Alley working at teenagers who with these (S.D.1974); S.D. jobs. summer Christensen, Finch where, “A fact exists on issue of (S.D.1969). there is a Because record, reasonable

the basis facts community experience sufficient basis on whether defendant’s minds could differ who chil- part of those have been up to the stan- conduct measures them, jury dren or should be dealt with Deering, Nemec 350 N.W.2d at dard.” those rather permitted to make decisions Here, (citation omitted). considering the Only than when the minor’s the court. in a light most favorable to the evidence of his conduct so unreasonable view was nonmoving Barger, party, we must con- capacity may the minor be found estimated that, least, very at clude reasonable contributorily negligent as matter of law. minds could differ on the issue of breach of Alley, supra. duty Simply put, inescapable owed. it is opinion arguing majority seems to be there are general that issues material contributory negligence theory, but Summary judgment appro- fact. was not that says there was not evidence We, legal profession, pride priate. aware, have or should Woodworth jury system. We tell the ourselves aware, the night been that on and in laymen this testimonial dinners violating companion were Wares and his anyone I remind speeches of state. Need drugs. The prohibiting alcohol or rules plaintiff simply case in this that argument seems to be Woodworth asking opportunity for an to submit her were con- negligent because minors jury? The facts and events of case opinion It is tributorily negligent. my cry of maimed bodies and death “duty,” majority the first issue is jury’s out for deliberation. is whether admits. The second issue not, If duty. breached Woodworth summary judgment

I would reverse the is the end of the lawsuit and a discussion entirety. in its unnecessary. contributory negligence WUEST, (dissenting). Acting Further, opinion, having Justice my assumed duty, to whether jury there is a issue as agree majority with I and I issues mi- supervised these properly Woodworth part III holding II and that issue nors. “Latchstring recognized that had employees drinking driving is a nation- Teenage over its minor of control disgrace. epidemic al It is so bad it had to exercise that undertaken government urging federal the states to ure to properly perform a duty she had age twenty-one. drinking raise the Alco- undertaken. A jury should decide whether hol-related automobile accidents are the or not she had done enough under the among number one cause of death young circumstances. If the jury should hold Every day adults. the national and local Latchstring negligent, there is still a seri- promote graduation media alcohol-free par- ous proximate issue of cause and the de- ties and other drinking ideas to reduce fenses of contributory negligence and as- driving among teenagers young adults. sumption risk, may all of which be sub- I parent, guardian, do not believe mitted to the by the appropriate and anybody assuming else duty, including usual instructions. Latchstring, can tell a teenager “no drink- ing,” thereby discharging responsibili- their

ty like an ostrich with its head the sand.

Perhaps, decide Wood- discharged but,

worth duty; perhaps, her

would decide that she should have done

more, such as an occasional bed check. negligence, any,

Woodworth’s was a fail-

Case Details

Case Name: Barger v. Cox

Court Name: South Dakota Supreme Court

Date Published: Jul 31, 1985

Citation: 372 N.W.2d 161

Docket Number: 14422

Court Abbreviation: S.D.