*1 SD 18 BERRY, Plaintiff Donna C. Appellee, RISDALL,
Barry L. Defendant Appellant. 20071, 20076.
Nos.
Supreme of South Dakota. Court
Argued Dec. 1997. Feb.
Decided *2 Delaney
Jack Rebecca Porter of and Estes, Delaney, Rapid City, Porter & plaintiff appellee. and Ireland, Rapid City, Curt for defendant appellant. GILBERTSON, Justice. (Risdall) Barry appeals L. Risdall granting Don-
Seventh Judicial Circuit order Berry’s (Berry) na C. motion for new trial on liability, compensatory; pu- the issues of nitive after a verdict was re- setting monetary turned her favor no dam- ages. Additionally, Berry has filed a notice claiming of review grant should the of a affirmed, new trial be such trial should be damages. limited to We affirm. FACTS AND PROCEDURE At the time of the automobile colli- subject appeal, Berry sion that is the of this and her husband were the sole stockholders Colijiah Enterprises, Inc. De‘Es- d/b/a' (De'Essence). Berry sence Limousine president general also manager of the corporation Friday, evening on the Decem- 3,1993, employ- ber and another ee, (Fauson), passen- Bobbie Fauson were gers company being in a limousine driven (Nieves), employee Michael an Nieves also purpose trip De'Essence. was to establish a route for the limousine service to passengers through Rapid City drive to view during outdoor Christmas decorations holiday. upcoming ap- returning [¶ 3.] The limousine was proximately p.m. proceed 8:00 and had to Chicago get north across West Street to Chicago home base. West is a four lane street where the east and west are lanes April separated by Nieves testified that tion. On awarded' a median. stop sign at the south stopped Berry, he had at the favor of but awarded zero pro- Chicago Street and then side West damages. Thereafter the trial granted slowly north to the median and rolled ceeded Berry’s motion for a new trial. Chicago west lanes of West
across the bound *3 began through the medi- Street. As Nieves AND ANALYSIS DECISION an, headlights approach- Berry saw Risdall’s ing a hill on the northern most lane of 1. trial [¶ 6.] Whether the court erred in Berry Chicago Street. testified that West granting Berry’s for a motion new she not have time to warn did Nieves trial? approaching vehicle. Risdall’s Pontiac Grand Waiver Am in the front- struck 27-foot limousine passenger causing
center of the side consid- initially argues [¶ Risdall that Ber damage. erable ry has her right challenge waived to Berry physical injuries suffered to [¶ 4.] by failing judge request back, neck, patella her as a result of the order the to return for further delibera collision. An officer on scene noticed a tions after the verdict form disputed strong alcohol from odor of Risdall. Risdall’s Fjerstad received.2 We stated v. Sioux approximately blood alcohol level was tested (S.D. Valley Hospital, 786, 291 N.W.2d 788 two hours after the accident and indicated a 1980),that: stopped by level of Risdall had a 0.122%. applies only [SDCL a 15-14-30] “where City Rapid bar after work where he con- irregular verdict is on its face and can be minimum of four to sumed a five mixed easily corrected as in the case where inter- prior drinks to the collision. Evidence was sign est is omitted or the foreman fails to presented which indicated that Risdall was alleged the verdict.” The deficiencies in (the m.p.h. posted traveling between 35 merely the verdict now before us are not limit) speed m.p.h. apply and 50 and did not mechanical, rather, they go but his brakes or swerve to avoid the accident.1 jury’s findings. proper heart of the Berry brought personal injury a ac- trial, motion therefore was for a new against punitive tion Risdall included a plaintiffs object failure to the verdict damages sepa- claim. The trial court held prevent was returned does not us from evidentiary hearing Berry’s punitive rate on addressing ambiguity the issue damage permitted claim and it to be submit- the verdict. jury. ted to the 21-1-4.1. The SDCL Mueller, 446, 450, (quoting Mueller v. 88 S.D. began trial on March 1997. Risdall did (1974)). Berry alleged has N.W.2d negligent not contest that he was but claimed damages case were inade that Nieves’ acts or omissions were the sole quate, not that the verdict was inconsistent proximate cause of the accident. Risdall Mueller, “irregular supra. on its face.” claiming moved for directed verdict vehicle, present Under the circumstances we since Nieves never saw RisdaU’s say jury’s cannot in the failing Nieves was therefore the deficiencies lookout, purely maintain a verdict are mechanical. The deficien- and such imputed agency go should be under cies the verdict to the heart of the principles. jury’s findings damages. The trial court denied this mo- on the issue See Conflicting presented happened evidence was as to the accident would even if have Risdall whether Risdall could have avoided accident. had been alcohol free. McDaniel, Rapid City D. Officer Michael Officer, Police traveling testified if that even Risdall was provides, 2. See SDCL 15-14-30 which “When m.p.h. at 50 he could avoided have the limou- announced, the verdict is if it be informal or Dwight sine. Officer Hall testified that Risdall submitted, covering insufficient in not the issue ’ could not have avoided the if the limou- accident jmy be corrected under advice pulled sine out when Risdall was within 50 feet court," jury may again or the he sent out.” Additionally, of the intersection. stated that Hall added). (emphasis approaching Nieves should have seen Risdall Paulson, 583, 585, Co., S.D. 96 dreson v. Black Light
Anderson Hills Power & ¶ (1959) (fundamental 886, 888; defect SD State ¶14, Spiry, by plaintiff verdict not waived because of SD the court to instruct to 264. As this Court stated in Bakker v. Ir- request failure to vine, (S.D.1994): proper and return a ver further deliberate dict). Therefore, Berry’s motion for a new When, in involving personal a tort action properly preserved the trial has issue our injuries, a motion for a new trial is based review. damages on the claim that the are either inadequate, excessive or it must be remem- New Trial Grant aof bered that the amount of to be 25, 1997; April On the trial court peculiarly question awarded “is for the granted Berry’s motion for new trial after jury.” ... There are several reasons for *4 damage finding that the award of zero was including this rule the fact that a defen- inadequate contrary evidence and may plaintiffs dant claim that a claimed judicial admissions of Risdall. SDCL 15-6- damages are neither reasonable in amount 59(a).3 Risdall claims this was error. We proximately by nor caused the defendant’s apply following to our review of standard negligence. by grant of a motion for new trial ' (citations omitted). Furthermore, “The trial trial court: court judge is best able to whether the dam- application An for a new trial based ages by jury product awarded a are the upon inadequate damages an is award ad passion Andreson, prejudice.” or 1997 SD dressed to the sound discretion of the trial ¶ (citations 12 at omit- court and a denial of the motion will not be ted). reversed an abuse of that discre absent thorough A jury review of the granted tion. A trial new is not to be due indication, provide any instructions fails to inadequacy damages merely because passion, other than prejudice or a mistake of a court believes a verdict is smaller than it law, why jury as to would return a ver damages in should be. The issue of Berry’s dict in favor awarding damages. zero personal injury peculiarly ques is action Jury Instruction No. 13 outlined the issues jury. jury’s tion for the The by be decided providing part: relevant except should not be set aside those First, extreme cases where it is the result of Defendant, Barry was the L. Risdall passion prejudice or or where the has negligent? palpably mistaken the of law rules you If negli- find Defendant was not damages particular in a case are to gent, you will return a verdict for the 15-6-59(a)(5)_ be measured. SDCL you Defendant. If find the Defendant ... jury’s explained If the verdict can be with negligent, you have a second issue to de- reference to the than evidence rather termine, namely:
juror passion, law, prejudice or mistake of - negligence Was that proximate cause of the verdict should be affirmed. any injury to Plaintiff? (S.D. Wilsey, Itzen v. 440 N.W.2d 313-14 If You negligence find Defendant’s was not 1989) (citations omitted). proximate injury, cause of Plaintiffs Plaintiff is not you entitled to recover and verdict, In reviewing “This will return a verdict Court is not reweigh free to the evidence or Defendant. gauge the credibility you of the witnesses....” If find Defendant’s was a Hernandez, Miller v. proximate injury, you cause of Plaintiffs (S.D.1994) (citations omitted). See also An- must then the amount fix of Plaintiffs 15-6-59(a) (5) provides 3. SDCL pertinent part: inadequate damages appear- Excessive or ing given to have been under the influence of granted A any new trial be to all or of the passion prejudice; or parties part any and on all or of the issues for (6) Insufficiency justify of the evidence to following causes: against verdict or other decision or that is law[J damages deciding proximate a verdict in her before the issue of and return cause. fa- jury apparently palpably vor. has either mis- applicable taken the rules of law and the added). Instruction (Emphasis No. stated regard instructions with or was part, passion prejudice. under the influence of or plaintiff, you If find for the use the verdict Stonecypher, See Stoltz v. entitled FOR THE PLAIN- VERDICT (S.D.1983). Therefore, the trial court did TIFF and insert ... the amount of the granting not abuse its discretion in the mo- plaintiff. recovery you have allowed to the tion for a new trial. defendant, you If find for the use the THE DE- verdict entitled VERDICT FOR the Verdict Amendment of FENDANT. Furthermore,
(Capitals in original). Instruc- Risdall claims that this is not a provided pertinent part inadequate damages, tion No. that: case of but a case of an “irregularity in the verdict which ... person may A or be in actual not drive should have been corrected either under ... physical control of vehicle while: SDCL 15-14-30 or trial simply (1) percent by weight or there 0.10 more amending the verdict form to indicate the ...; of alcohol his blood verdict for [Risdall].” *5 (2) under the influence of an alcoholic bev- split authority There of [¶ 14.] exists erage. among jurisdictions as to the consequences of If there was at that time ten hundredths plaintiff awarding plaintiff verdict for a but percent weight or more of alcohol in the damages. jurisdictions no maintain Several blood, presumed it defendant’s shall be affirmatively stating that a “verdict it is for that the defendant was under the influence no amount cannot be the for judg- basis intoxicating liquor. of jurisdictions, however, ment. In other a ver- These statutes set the standard of care plaintiff affirmatively dict for. the which prudent ordinarily per- of the careful and that for damages states it is no amount of Risdall, them, you son. If find ... violated entry judgment warrants the of a for the negligence. such violation is § defendant.” 75B AmJur2d Trial susceptible If 12.] a verdict is [¶ eases). (1992) (collecting construction, more than one the construction applied. which sustains the verdict must be This Court first addressed a Fjerstad, plaintiff awarding at 788. Baker v. the Jew verdict for but no dam ell, Storms, 494,498 ages S.D. 96 N.W.2d in Lewis v. 290 N.W.2d (1959). Here, however, (S.D.1980), engage in we must wherein we concluded that since pure speculation jury clearly to construe what verdict the “intention of the ascer [was] tainable; actually accept Berry’s merely was If we rendered. the verdict defective [was] verdict, Thus, construction of the she should have form.” the trial court should have damages parties been awarded as judgment both the verdict and entered amended agreed physical injuries she as a for is distinguishable suffered the defendant. Lewis accept present result of the If accident. we Risdall’s the facts because Lems the verdict, jury jury construction of the that the intentions of the were ascertainable. proximately jury clearly why they found that Risdall did not cause The indicated not did Berry’s damages, captioned plaintiff by the damages noting verdict form award “contributory negligence slight” “verdict for the defendant” should have been more than argued jury plaintiffs Additionally, Risdall has that used. the on verdict form. Id. used plaintiff” jury the for the “verdict form because of the Lewis did not have the benefit of negligence per explicit concerning the intoxication se statute instructions the However, proper pres contained in Instruction 21. form to In verdict be used. the case, argument light is of weakened Instruction ent did have the benefit of requires explicit jury concerning takes into account or instructions the cor presume to assume that Risdall rect verdict form to be used. was We erred in they the trial court are Whether juries follow the instructions that granting all issues a new trial on at 788. Fjerstad, given. damages rather than alone. Feller, 458 N.W.2d 619 In Kusser Berry notice of has filed a (S.D.1990), again [¶20.] addressed this Court upheld claiming that the trial court should for no amount and review plaintiffs verdict solely grant of a hew trial plaintiffs of motion have limited court’s denial puni compensatory of motion amend the consideration trial denial new important damages. It The trial court has broad favor. is tive in defendant’s Kusser, will dis this Court found and its decision not be discretion note that there has been an could turbed unless we concludé in the record evidence Maybee no Motor plaintiff suffered of discretion. Jacobs abuse have concluded (S.D.1994) Co., Inc., negligent her- Kusser was damages or that omitted). (citations not present, At Risdall does at 621. self. Id. injuries as a Berry suffered dispute that Maybee, this Court found collision and Risdall does
result of the its the trial court had abused discretion negligent. herself claim that limiting grant of a new trial to the issue though damages. held that even We Before a trial court amend supported liability, a new trial evidence originally entered which was a verdict granted on all issues be- should have been plaintiff, that awarded no dam favor were cause the issues fraud in favor of it became a verdict ages, so that separated. they interwoven could not be so defendant, must first “be clear the court that a new trial on Id. at 345. We noted contrary to the intention that the verdict proper: damages alone is not Kusser, 622; 453 N.W.2d at Lew jury.” clearly appears that the issue to Here, however, [UJnless is, at 498. *6 separable be retried is so distinct and from trial court indica give not did it be the others that a trial of alone when returned tion of its intentions injustice_ ques- had without Here the Berry. in favor of for amount verdict no damages on construction is so tion of with the court dur Neither a communication liability interwoven that of the that with an annotation on the ing nor deliberations the former cannot be submitted to the Lewis, form, explana provide inas independently confu- of the latter without why jury would return a tion as to ver uncertainty, amount sion and which would Berry for no amount when dict in favor of to a denial of a fair trial. Berry’s damages, medical at the portions of least, especially per This fact is were clear. v. (quoting Id. Gasoline Products Co. plexing Risdall did not contend Co., 494, 500, Champlin Refining 283 51 U.S. damages. Berry compensable suffered no (1931)). 513, 515, 1188, 1191 S.Ct. 75 L.Ed. ¶62, 27, Minnaert, 1997 Tunender v. SD Cf. say cannot that Risdall would not be We (Abuse 849, 855 of discretion 563 N.W.2d prejudiced by solely a new trial limited a “sub grant a trial where there was new damages. As failed to consideration by presented [de stantial amount of evidence rationally articulate how a new trial could be the accident did not cause fendant] that solely compensato- conducted on the issue of compensable damages”); Kis [plaintiff] any ry damages, that the trial court did we find (sufficient ser, 621 evidence 453 at N.W.2d granting not abuse its discretion in a new jury could have concluded that for which trial as to all issues. compensable injury). plaintiff no suffered erred 3. Whether [¶ 22.] sum, nothing In there is contained [¶ 18.] failing on the doc- to instruct in the which this Court is able record imputed contributory negli- trine of intention of the without ascertain the gence? engaging conjecture in or surmise. We find give in The trial court refused to no abuse of the trial court discretion imputed jury instruction on eontrib- granting Berry’s trial. Risdall’s motion for new
7 (5thed 1984).. contributory neg imputed The relationship upon the utory negligence based in ar- was conceived horse-and- ligence Risdall has doctrine Berry and Nieves. between crossing days, owner of a team could buggy was “when the that Nieves gued failing to maintain away from a driver whom he intersection take the reins and/or whether possibility, Risdall contends control was a a lookout. Actual distrusted. Ill.App.3d relationship be- Canale, characterizes the Seeger this Court 241 v. fiction.” master as that of Berry and Nieves tween 607 N.E.2d 177, Ill.Dec. 180 servant, agent, or co-em- principal omitted). and (1993) (internal 687, quotations contributory imputed ployees, the doctrine criticisms we undertake the light of these Berry’s claim. We bar negligence should contributory imputed following review of disagree. collision cases negligence in automobile Dakota. South repeatedly held has This Court law duty question of is a existence of imputed contributo- The doctrine subject to de and is to decide for the Court pub- developed primarily out of ry negligence Poelstra, Basin Elec. Power v. novo review. supply finan- policy lic concerns order ¶ 823, 825; 36, 9, 545 N.W.2d Coop., 1996 SD for victims of cially responsible defendants 80, 81 County, 507 N.W.2d v. Davison Bland automobile accidents. (S.D.1993); Kempffer, 477 N.W.2d v. Clauson that, expen- theory cars are since (S.D.1991); Nat’l v. United Gilbert sive, likely to the owner of a car was more (S.D.1989); Bank, Small pay judg- the financial resources to have N.W.2d 410, Hosp., v. McKennan ment_ pro- in order to Subsequently, Cox, (S.D.1987) (citing Barger Wares involving eases de- symmetry between vide (S.D.1985)); Erickson plaintiffs’ negligence, courts fendants’ (S.D.1985) (cit Lavielle, in cases where apply came to the doctrine Bunch, 22, 26, 214 Cuppy v. 88 S.D. ing recovery owner-passenger sought (1974)). summary In the party, from the driver himself. a third we have held: judgment context at 689 607 N.E.2d Seeger, 180 Ill.Dec. contributory and negligence, [I]ssues omitted). (internal citations proximate comparative negligence, fact and it ordinarily questions of cause are first the issue This Court addressed judge a trial a clear case before must be Wilson, passen employer was a where an from the taking these issues
justified being by his driven ger in an automobile *7 can only when reasonable men jury. “It is a train while employee when it collided with from facts and one conclusion draw but This re tracks. Court railroad crossing of they a matter that become inferences summary judgment grant of versed the rarely.” [occurs] law and this possible that the but held favor of defendant Ankney, employee 313 for failure to v. of the negligence Mitchell (S.D.1986) upon imputed North (quoting Wilson Great a lookout should be maintain Co., 207, 213, 1 at Ry. N.W.2d at employer. ern 83 S.D. S.D. the (1968)). opportu rejected the court 24. The Wilson the “both-ways test” as nity abandon the to contributory theory imputed of The did in Supreme Court Weber Minnesota at- come under considerable negligence has Inc., 274 Minn. Stokely-Van Camp, This criticism past years. during tack the (1966). “both-ways test” The development the of largely attributable to is vicariously liable “if meant that the master laws for motor vehicle responsibility financial negli agent’s party due to the to a third by a realization operators owners and recovery from be is also barred gence, he theory’s underlying ratio- this the courts that imputed to negligence is agent’s his cause nale, a blind upon actual control or based Weber, at 541. Even him.” relationship, is parties’ legal reference accepted “both-ways test” was al., though the et Prosser Page outdated. W. Keeton at that majority jurisdictions of great §§ 73 the the Law Torts and Keeton on of 4. See SDCL ch. 32-35.
time, logic injury Prouty, personal the to find the defaulted suit Weber failed against employer. him This imputing negligence plaintiff brought a faultless and his to error im- against party. him Id. Court found where the trial court in a suit a third at puted judgment the driver’s on his default employer employer but did not allow passenger present the master is as a When litigate right to its claims for contribution there some chance he ... be against the other Id. at 538. We drivers. control over exercise his theoretic could approve stated that are to “[w]e inclined fit operation of ear if he saw to do Supreme reasoning of the of Minneso- Court here, so. But even unless it can be shown that, Weber, swpra [in ] ta when ruled actually take over manual that he tried to negligence cases, contributory automobile vehicle, operation of the what chance does of an negligence employee-driver will not be right? he have to this exercise imputed employer-owner to a so as faultless recovery par- to bar from a third dangerous of nothing can think more We (citations omitted). ty.” then went Id. We days high- travel on congested in these on to hold that the doctrine of “Given that speed highways permit a master than to respondeat superior imputation requires the riding his passenger as a in ear driven negligence [employee-driver] from [em- constantly interfere with the servant ployer-owner], judgment imputa- this default driving, attempt his to exer- servant’s prevent employer] not tion should from [the right a theoretic of control. To do so cise proving parties pari that other stood delic- of active would be clearest evidence to.” Id. master, negligence part on the Berry argues holding that our im- chargeable which he would be without Dehn is inconsistent there- with Wilson and him the of his puting negligence servant. overruled, impli- fore has been albeit Wilson hand, Imputed negligence, the other on edly “both-ways and the test” has been aban- presupposes that innocent the master is doned. How, then, any we reconcile the fault. can control, theory right the exercise of important It is to note that in Wil- charge negli- would the master with “both-ways recognized son Court imputed gence based on test” in the context of a rela- master-servant theory he is free from fault? tionship employer ability where the had the just hang together.... two do employee to control his Further- driver. are the time has come to We convinced more, involves Dehn an intricate set of facts both-ways discard which is de- [the test] present where the employer was not even only antiqui- on grounds fensible of its scene, distinguishable the accident ty. present those of the urges case. Risdall (footnotes omitted). this Court overrule Dehn and extend Id. at 544-45 “both-ways test” to the or co- principal-agent again We addressed the issue in *8 employee context in all cases. This we need (S.D.1982), Prouty, Dehn v. 321 N.W.2d not do. driver, Patrick, which concerned a LuAnn Berry who of lost control her vehicle bad weather could or control [¶ 31.] not foresee passing to rest in a lane under- came the driver’s actions so as to the acci- avoid overpass. Lyle Berry neath an Musilek was behind dent. could What have done the stopped prior Patrick and in the road to cheek on few seconds to the accident? Take Subsequently, her. another vehicle slowed of the vehicle by grabbing control the wheel being behind Musilek a truck driven on stepping or or brake to accelerator Prouty, scope employ- Robert of his avoid the collision? think not. Risdall We attempt- Supply, alleged ment with Farm Automated has never that. was contribu- Therefore, torily negligent. ed to drive around three vehicles without trial court slowing down. The truck rear-ended the last in refusing did not err to instruct on the ear, causing to imputed contributory negligence with the Musilek and of collide doctrine truck, Patrick vehicles. The driver of the under these facts. plaintiff. the trial court erred in 4. Whether Willful and wanton
[¶ 32.] misconduct affirmative,-reckless denying Dismiss demonstrates an Risdall’s Motion to state Damages of mind deliberate recklessness on Punitive Claim? part of the defendant. of Such state mind days After of hear two objective is determined an standard ings, upon trial court found that “based subjective rather than the state of mind of evidence, convincing there is a clear and (Citations omitted). the defendant. basis to believe that [Risdall’s] reasonable upheld This puni Court verdict of 3,1993, operation of the vehicle on December damages against tive an intoxicated driver in willful, wanton, was in reckless5 disre Wyant, 473, Flockhart v. gard [Berry’s] rights.” of 21-1- See SDCL (S.D. 1991), after consideration of several fac 4.1. On March the trial court en tors: . allowing punitive an order the issue of tered [The driver] admitted alcoholic an jury. to be to the Ris- submitted long history with a of involvement with the claims this dall was error. concerning law alcohol related offenses. retry 34.] We do not the facts de day question, On the she drank for will not novo but rather disturb a trial court’s (including hours operating while she was finding that there was a reasonable basis to car). her She knew that her ultimate des- punitive damages submit the issue of fifty away, tination was yet some miles she showing finding absent a that such constíiously chose anyway. to drink She Millar, clearly erroneous. Schuldies v. through classes, had been drunk-driving ¶ (citing SD Isaac in-patient pro- alcoholic treatment Co., Farm State Mut. Auto. Ins. known, grams. She must have with sub- (S.D. 1994)). certainty, danger stantial which her engendered. conduct Brodock, Tranby In (S.D.1984), Court addressed L. See also Linda Schlueter and Kenneth R. willful and wanton misconduct in the context Redden, 9.10(A)(1) (3d Damages, § Punitive operating of a motor vehicle: 1995). clearly Ed This Court in Flockhart intoxication, itself, established that does partakes ap-
It is conduct which
to some
necessary
impose
not establish the malice
extent,
preciable
though
entirely,
of
punitive damages. 467 N.W.2d at
n. 7.
the nature of a deliberate and intentional
wrong. There must be facts that would
punitive damages hearing,
At the
intentionally
show that defendant
did
going
Risdall testified that he
had
habit
something
operation
the motor
to the Red
Bar to havé “four”
Garter
drinks
vehicle which he should not have done or
employees
with fellow
after work.
After
intentionally
something
failed to do
drinking
usually
few hours of
he would
drive
he should have done under the circum-
spite
himself home.
of the fact that Ris-
stances that
it can be said that he con- dall knew he had to drive a distance of six to
sciously
home,
that his
realized
conduct would
get
through
seven miles to
some of it
probability,
distinguished
areas,
all
possi-
heavy
as
day
traffic
on
the accident
bility, produce
precise
Berry,
consciously
result which it with
he
chose to drink
produce
bring
did
and would
ham to the
to nine6 drinks in less than
hours
.four
two
pled
5. The record indicates Risdall
nolo conten-
The trial court also refused to consider a 1984
plea
guilty by
Risdall to
charge
driving
DUI because its
dere to a criminal
of reckless
as a
disposition
imposition
suspended
resulted
ain
However, pursuant
result of this accident.
evidentiary
gave
*9
of sentence. It further
similar
19-12-12,
plea
SDCL
this
is not admissible
ain
treatment
Risdall’s 1991 DUI conviction.
Judd,
subsequent
proceeding.
civil
See Olson v.
purposes
of
SDCL.21-1-4.1
However
hearing,
(S.D. 1995).
When Risdall
did
the trial court
consider alcohol
limine,
brought on a motion in
the trial court
programs participated
in
Risdall mandated
properly granted
rely upon
it and did not
Ris-
aas
result of the 1984 and 1991 sentences.
plea making
dall’s
in
its determination on th
e
punitive
damages governed
motion for
SDCL
consumption
6. Risdall admitted to
of
drinks.
four
testimony placed
consumption
Expert
21-1-4.1.
at
C.J.,
MILLER,
and
Driving
impaired
alcohol
leaving.
[¶ 41.]
before
KONENKAMP, J.,
obviously
concur.
high density area
through such
for an alcohol relat-
greater potential
causes
AMUNDSON, J.,
part
in
concurs
42.]
[¶
interstate traveled
injury than the
ed
rural
part.
in
and dissents
in
impaired driver
Flockhart.
by the alcohol
accident,
hours
Approximately
SABERS, J.,
two
dissents.
after
was
alcohol content
0.122%.
Risdall’s blood
AMUNDSON,
(concurring
part
Justice
produced to the effect
Expert evidence was
dissenting
part).
and
accident Risdall’s
at the time of the
that
I dissent on issue four.
high
been as
could have
blood alcohol content
long
majority opinion goes
in excess of what
0.15%. This is 50%
as
way
imposing punitive damages as a
toward
violation in
a criminal
sufficient to constitute
negli-
matter of course for intoxication
32-23-1.
this state. SDCL
previ-
gence actions.
the Court has
While
Furthermore,
he
Risdall admitted
punitive damages
ously upheld an award of
driving
dangers of
while
was aware of the
driver,
against an intoxicated
it did so under
gained
He
this knowl-
the influence.
under
outrageous
a far more
set of circumstances.
required to attend Alcohol-
edge after he was
Wyant,
See Flockhart v.
H
1972,
through
experience.
had
various alcohol
and
been
fenses
correctional
A fur
ther
programs.
difference between the
treatment
She testified that
cases involves
way
movies,
classes,
the accidents
occurred
each case.
she has seen
attended
and
driving erratically
Risdall was not
and would
drinking
had been to lectures about
and
not have had the accident in question had the
driving. Wyant
been
had
fined for each of
pulled
other car not
stop sign
out from a
and
prior
her
DUI convictions but testified that
directly
fact,
path.
traveled
into Risdall’s
kept
drinking,
the fines had not
her from
question
there is a serious
as to whether
they kept
driving
nor had
her from
while
any operational
Risdall
negligence
committed
drinking.
she had been
at all while driving
By compari
his vehicle.8
(footnote
(emphasis
original)
Id. at 474
son, Wyant
through
drove
a median and
omitted). The accident in
took
Flockhart
traveling
struck another car
opposite
place
Wyant
lost control of her vehicle
direction on
highway.
the interstate
At
90,
medián,
through
on Interstate
went
most,
keep
Risdall
proper
failed to
lookout
oncoming
and struck Flockhart’s
Id.
vehicle.
might stray
path,
for cars that
into his
which
Comparing the facts of the case
However,
negligence.
is mere
act of
“[a]n
us
Flockhart
before with
reveals that the two
not,
itself,
negligence
mere
does
of
demon
all,
quite distinguishable.
are
eases
First of
degree
strate the
of intention and delibera
Risdall, most,
at
had a blood alcohol level of
necessary
question
punitive
tion
to raise a
of
0.15%,
Wyant
which is half the level
had in
damages.” Detling
Chockley,
70 Ohio
suggests
Flockhart. This fact alone
the de-
134,
208,
(1982),
St.2d
436 N.E.2d
over
gree to which the cases differ. See Huffman
Cabe,
ruled
grounds
on other
70 Ohio
Love,
245 Va.
427 S.E.2d
360-61
St.3d
(citing
N.E.2d 159
Jones v.
(1993) (holding
determining
“[i]n
Univ.,
(6th
Wittenberg
conduct” (Citations omitted). majority opinion The tions. See id. claims that the trial court had no indication jury’s intentions when it returned a to foresee circum- It is difficult Berry. verdict for no amount favor of not intoxicated driver would stance where an Lewis, ignores which instructs the court This damages subject punitive under be for the to find “in fact and law a verdict intoxicated can be Driving while decision. (“It be said that the defendant.” Id. cannot not mean that there negligent, but it does otherwise, damages plaintiff; for found punitive dam- exposure to should be strict awarded.”); K E have been accord & would This is a case where ages in instances. all Cattle, Mayer, Land & Inc. exposure to the claim for no there should be (S.D.1983) (reversing remanding the record reflects that punitive damages and for correction of verdict to reflect that ver- convinced. even the was so plaintiff damages for which awarded zero
dict
defendant);
actually
verdict for
see also
SABERS,
(dissenting).
Justice
(S.D.1990)
Feller,
Kusser v.
light most favorable to the we cannot recovery[.] and hence no say jury’s that the award was a result of majority opinion ignores [¶ 59.] The passion prejudice jury or or that well- the has precedent settled affirming rules of palpably mistaken the law which court. measured.”). The trial court damages in this case are to be should have amended the judgment verdict and entered for Risdall. majority opinion Even the relies on authority Fjer sustains this verdict. If we were to reach the motion for Valley Hospital, v. Sioux stad here, only permissible new trial the question (S.D.1980), this court affirmed the any legal would be: “Is there evidence or plaintiffs motion for new trial even denial testimony fairly which warrants the verdict though jury’s verdict for the defendant jury?” question only That can be accompanied by was this written statement: Therefore, answered in the affirmative. We, jury would like to submit verdict for the defendant should not be dis- although Court we decided favor of turbed and we should reverse. defendant, we strongly feel that defendant, Sioux Valley Hospital, neg- was failing
ligent to properly supervise the
emergency room. ruled, accept “[W]e defendant’s verdict, i.e.,
construction that the hospital that the
determined was proper providing supervision,
not but that negligence was not proximate cause Likewise, Csoka’s Dezso death.” Id. we accept
should Risdall’s construction of the
verdict, i.e., (as determined measure, is relief being, beyond Nor warranted under SDCL 15—6— all unreasonable and 59(a)(5), provides that a new trial be outrageous, manifestly and such as show the granted inadequate damages when excessive or by passion, partiali- to have been actuated appear given to have been under the influence of ty, prejudice corruption. prejudice. passion or As oted Bakker v. Ir (citations omitted). Id. at 48 & alteration As vine, (S.D.1994), analyses noted, damages "beyond an award of zero is not (5) (6), subdivisions although under tually not mu all measure” or "unreasonable and outra- exclusive, may be combined. To overturn geous” only possible is the award if the —it award, juty's damage proxi- concluded Risdall’s ... be or inade- must so excessive Berry’s injuries. mate cause of mankind, blush, quate as to strike first as