Arpie BLAND and Kenneth Bland, Plaintiffs and Appellants, v. DAVISON COUNTY, Defendant and Appellee.
No. 19538.
Supreme Court of South Dakota.
Decided July 16, 1997.
1997 SD 92 Argued Jan. 14, 1997. Reassigned May 13, 1997.
[¶28] Affirmed in part, reversed in part and remanded.
[¶29] MILLER, C.J., and SABERS, AMUNDSON, KONENKAMP and GILBERTSON, JJ., participating.
William F. Day, Jr. of Lynn, Jackson, Shultz and Lebrun and N. Dean Nasser, Jr. of Nassre Law Offices, Sioux Falls, for Plaintiffs and Appellants.
Douglas M. Deibert of Cadwell, Sanford, Deibert & Garry Sioux Falls, for Defendant and Appellee.
GILBERTSON, Justice (on reassignment).
[¶1.] In Bland v. Davison County, 507 N.W.2d 80 (S.D.1993) we rejected the contention that Davison County, in the maintenance of icy roads, had absolute discretion and held rather that it was charged with the duty of “reasonable and ordinary care.” Upon retrial, the jury found that the County fulfilled this obligation and decided in favor of the County. Arpie Bland appeals this adverse jury verdict in her personal injury lawsuit against the County. She claims 1) that the trial court erred when it refused to grant a change of venue in light of pretrial publicity and the jurors’ status as taxpayers and 2) that the court should have granted a new trial because of juror misconduct. She also argues that the court abused its discretion 3) by refusing to allow impeachment in accordance with the exception to the subsequent remedial measure rule; 4) by denying her motions for directed verdict and judgment notwithstanding the verdict on the issue of County‘s negligence; 5) by failing to allow expert testimony regarding reasonable road maintenance standards; and 6) by instructing the jury on the defense of assumption of the risk. Finding no error, we affirm on all issues.
FACTS
[¶2.] On January 6, 1990, Arpie Bland (Bland) was traveling east from her rural Davison County home to Mitchell along County Highway 23, also known as the Loomis Oil Road. Just west of where that road intersects with County Highway 8 (Betts Road) a thick shelterbelt of trees lined approximately 500 feet (about one-tenth of a mile) of the south side of Loomis Road, creating a shady condition where snow and ice accumulated on the road. Bland reduced her speed from the posted 55 m.p.h. speed limit to 40 m.p.h. as was her habit when preparing to cross this patch of ice. As she crossed the ice, her car began to fishtail and spin and she was unable to regain control. The car continued out of control on the dry pavement at the end of the shelterbelt and into the northeast corner of the Betts Road intersection. It rolled 2½ times. Bland suffered severe personal injuries and is now paraplegic.
[¶3.] At trial, the County stated that its policy was to sand only portions of highways containing stop signs, curves, hills, and bridges. Because of this policy, even though it admitted to the jury it was aware of the icy condition of the shelterbelted area, no sanding was done prior to the accident.
[¶4.] 1. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED BLAND‘S MOTION FOR A CHANGE OF VENUE
[¶5.] Bland argues that a change of venue should have been granted due to pretrial publicity regarding the lawsuit and because of the jurors’ status as taxpayers. Our standard of review of the trial court‘s ruling on a change of venue motion is whether there was an abuse of discretion. State v. Petersen, 515 N.W.2d 687, 688 (S.D.1994); State v. Arguello, 502 N.W.2d 548, 551 (S.D.1993); State v. Wellner, 318 N.W.2d 324, 331 (S.D.1982). “The term ‘abuse of discretion’ refers to a discretion exercised to an end or purpose not justified by, and against, reason and evidence.” Ward v. Lange, 1996 SD 113, ¶23, 553 N.W.2d 246, 252 (citations omitted).
[¶6.] A change of venue may be granted by a court when, among other reasons, “there is reason to believe that an impartial trial cannot be had therein[.]”
[¶7.] Bland relies heavily on Olson v. City of Sioux Falls, 63 S.D. 563, 262 N.W. 85 (1935), where this Court affirmed an order for a change of venue granted for a second trial after the first trial ended in a hung jury. Olson sued the City of Sioux Falls for damage caused to his land by the City‘s pollution of the Big Sioux River. This court held that the trial court did not abuse its discretion in granting the change of venue:
It is one thing to hold that a juror may not be challenged for cause on account of a very small interest which he may have as a taxpayer, but quite another thing to conclude that an entire jury of taxpayers, each of whom is interested to a small degree adversely to the defendant, gives that assurance of a fair trial to which every litigant is entitled.
A jury is drawn from the body of the county, and, conceding that where the persons adversely interested in the result of an action are confined to a locality, and the number is small in comparison with the population of the county, no right to a change of place of trial would exist, we are convinced that the trial court was justified in concluding that the number of jurors from the city of Sioux Falls on a panel would be so proportionately large that an impartial jury could not be selected and that the trial court did not abuse its discretion.
Id. at 568, 262 N.W. at 88 (citation omitted). We need not reach the question as to whether this case sufficiently supports Bland‘s argument as she did not follow up on her concerns during voir dire, and failed to demonstrate any prejudice.
[¶8.] At a pretrial conference preceding the first trial date in February of 1995, the trial court responded to Bland‘s concerns regarding pretrial publicity by ordering the attorneys not to speak to the press and directing that the matter of press coverage would be handled on voir dire. The trial was originally scheduled for February, 1995, but was eventually held November 6-9, 1995.1 The first motion for a change of venue was made in February. Bland renewed the motion at the November pretrial motions hearing.
[¶9.] The court again instructed that voir dire would proceed and suggested counsel could renew the motion at the close of jury selection. The court informed the attorneys of its preference that counsel begin by addressing the entire panel and then address individual jurors according to any responses to those questions. Bland did not object to this, and questioned only one juror individually concerning preconceived notions about
[¶10.] “Voir dire examination is the better forum for ascertaining [public hostility].” Arguello, 502 N.W.2d at 552 n.1 (citation omitted). Bland could have asked to submit written questions to the panel for the purpose of determining which jurors may have heard out-of-court statements and the details of such news or statements, and could have asked to isolate and conduct individual voir dire of those jurors who had knowledge of the case. See Smith, 477 N.W.2d at 32; Boykin v. Leapley, 471 N.W.2d 165, 168 (S.D.1991). Although the court was not obligated to allow individual questioning, State v. Tapio, 459 N.W.2d 406, 412 (S.D.1990), such a request was not made. Based upon voir dire, the trial court concluded “[T]his is a jury of 12 impartial people who are not going to be improperly influenced in the case; the court believes that under our system a fair jury has been selected for both sides in this case.”
The court, sitting through voir dire, found that the publicity, although it was unfortunate, did not so invade the jurors’ minds or cause them to form opinions or beliefs which would affect their judgment in this particular case. The United States Supreme Court in Patton v. Yount, 467 U.S. 1025, 1035, 104 S.Ct. 2885, 2891, 81 L.Ed.2d 847, 856 (1984), found that whether or not the veniremen were acquainted with the case was “essentially irrelevant. The relevant question is not whether the community remembered the case, but whether the jurors at [the] trial had such fixed opinions that they could not judge impartially the guilt of the defendant[.]” ... Under Patton, the trial court‘s findings of juror impartiality may be overturned only for manifest error. State v. Banks, 387 N.W.2d 19, 21 (S.D.1986) (alterations in original).
[¶11.] At the time Bland renewed the motion for change of venue, her counsel stated, “We are unable to, of course, establish a lot of prejudice from [the pretrial publicity].” However, it is Bland‘s burden to show that “knowledge of the publicity [caused] a prejudicial opinion to be formed[.]” Petersen, 515 N.W.2d at 688. Bland has not produced evidence to provide a sufficient basis for a change of venue, State v. Martin, 449 N.W.2d 29, 34 (S.D.1989), and has not shown abuse of discretion or “manifest error” in the trial court‘s denial of the motion.3
[¶12.] 2. WHETHER BLAND IS ENTITLED TO RELIEF FROM THE VERDICT FOR JUROR MISCONDUCT
[¶13.] A party seeking a new trial on the grounds of juror misconduct must demonstrate that the misconduct materially affected his or her substantial rights. Shamburger v. Behrens, 418 N.W.2d 299, 302 (S.D.1988) (citing Carpenter v. Union Baking Co., 67 S.D. 151, 290 N.W. 322 (1940)).
When reviewing a trial court‘s factual determination regarding juror misconduct, the standard to be invoked is the clearly erroneous standard. A finding is “clearly erroneous” when after reviewing all of the evidence, we are left with a definite and firm conviction that a mistake was made. We will uphold the trial court‘s resolution
[¶14.] Bland contacted several jurors by letter following the trial and subpoenaed some of them for the post-trial motions hearing. When a party attempts to impeach a verdict upon the basis of juror misconduct and relies on testimony from a juror, that party must show evidence of extrinsic interference with the deliberations of the jury:
Except as otherwise provided by statute, upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury‘s deliberations or to the effect of anything upon his or any other juror‘s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury‘s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.
SDCL 19-14-7 seeks to reach an accommodation between policies designed to safeguard the institution of trial by jury and policies designed to insure a just result in individual cases. The rule was drafted as a rule of incompetency barring a juror from testifying as to motives, methods, or mental processes by which he reached his verdict. This rule operates to prohibit testimony concerning certain conduct by the jurors which has no verifiable outward manifestations.It is settled law in South Dakota that only extrinsic, as opposed to intrinsic, information may be used to impeach a jury verdict.
A common ground for a motion for a new trial is that the jury, or members of it, has not performed in the fashion expected of juries. Attacks on this ground are frequently abortive because, as will be seen, the circumstances under which the jurors themselves may testify to impeach the verdict are very limited.
418 N.W.2d at 303-04 (citations omitted).
[¶15.] Bland argues that it was impossible for the jury members to “forget” their relationship with the county. One juror testified that another juror either made a statement or posed a question to the effect of “Where are we going to get $1.5 million ....” (emphasis supplied by Bland). This statement cannot properly be used to impeach the verdict, as Bland has not shown that it constitutes “knowledge relevant to the facts in issue not obtained through the introduction of evidence but acquired [elsewhere].” Id. at 303 (citation omitted). The jury knew the amount of damages sought by Bland because of statements made during the proceedings.4 As already discussed, any prejudice or bias on the part of a juror should have been discovered and explored during voir dire. While it would be improper for the jury to consider the source of payment, the trial court expressly instructed the jury not to let its decision be affected by such concerns. Juries are presumed to follow instructions of the trial court. State v. Means, 363 N.W.2d 565, 569 (S.D.1985) (citing State v. Reddington, 80 S.D. 390, 125 N.W.2d 58 (1963)). Furthermore, the juror who testified to hearing the statement characterized it as a “mutter,” and a third juror testified she did not even hear the statement.
[¶16.] Bland also complains that there is evidence that during deliberations the jury
[¶17.] Finally, Bland complains that the jury discussed the appropriate speed to drive over the Loomis Road stretch of ice, indicating a familiarity with the accident scene. The voir dire transcript indicates that Bland‘s counsel asked if anyone was familiar with the site of the accident, and later asked general questions about traveling on ice; however, the jury was never expressly asked if anyone ever drove over that particular patch of ice. The trial court did not preclude such questions and voir dire was the proper forum to glean such information. Cf. Slaubaugh v. Slaubaugh, 499 N.W.2d 99, 105 (N.D.1993) (“The failure to challenge prospective jurors for cause during voir dire waives any objections to their selection as jurors.“).
Even if juror misconduct occurs and warrants an inquiry, not every irregular conduct of a jury is prejudicial and warrants a new trial. When juror misconduct occurs, a rebuttable presumption of prejudice arises. The state may rebut this presumption:
By showing the information was harmless in view of all the evidence of guilt; or by determining there was no significant possibility that the defendant was prejudiced; or by showing that the nature of the extra-record evidence could not have had or had a minimal effect upon the jury.
Wilkins, 536 N.W.2d at 99-100 (citations omitted). The trial court was not clearly erroneous in finding that this discussion neither prejudiced Bland nor affected the outcome of the trial. Therefore, it was not an abuse of discretion to deny the motion for a new trial based upon the alleged juror misconduct.
[¶18.] 3. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY REFUSING TO ALLOW IMPEACHMENT OF A WITNESS IN ACCORDANCE WITH THE EXCEPTION TO THE SUBSEQUENT REMEDIAL MEASURE RULE
[¶19.] The trial court declined to allow into evidence the facts that County Assistant Highway Superintendent Joseph Donald King was summoned to the accident scene, stayed for approximately one hour with hazard lights flashing to warn oncoming traffic, and did not leave until a sanding truck had arrived. This evidentiary ruling is examined by this Court under an abuse of discretion standard of review.
An abuse of discretion has been defined by this Court as a decision which is not justified by, and clearly against reason and evidence. We will not reverse a decision if “we believe a judicial mind, in view of the law and the circumstances, could reasonably have reached that conclusion.” Dakota Cheese, Inc. v. Taylor, 525 N.W.2d 713, 715 (S.D.1995) (citations omitted). “Upon review ... we must be careful not to substitute our reasoning for that of the trial court.” State v. Larson, 512 N.W.2d 732, 736 (S.D.1994).
[¶20.] The only reason that King came to the accident scene to begin with was because he was requested to do so by law enforcement. Without this call, he would not have gone, and no remedial sanding would have
[¶21.] Bland argues that these facts should have been admitted into evidence under the impeachment exception to the general rule of exclusion of remedial measures. See
[¶22.] Even if Bland can clear this evidentiary hurdle, she does not adequately explain how this “error” was prejudicial. She does argue that the jury was allowed to hear King‘s uncontroverted testimony which downplayed the conditions of the road on the day of the accident. On the other hand, numerous other witnesses, many called by Bland, were allowed to give their opinion as to the road conditions in question. Arpie Bland testified as to the accident scene, as well as did neighbors Susan Dodd and Lonnie Bollock, who daily used the road and went over the accident site. Bland, Dodd and Bollock testified they would reduce speed when approaching this icy patch. Dodd and Bollock both considered this icy condition to be “dangerous.” State Trooper Henry Bayne testified that he routinely traveled this icy stretch of road and took precautionary measures when driving across the ice. He also testified he considered this condition to be “a hazardous ice accumulation.” Deputy Sheriff Kelly Gross testified to the same. Gross also testified that immediately after the accident, when he attempted to move his cruiser at the scene, the car moved to the side rather than forward. Trooper Bayne testified at trial that when he arrived at the accident scene, he slipped and fell on the ice as he was getting out of his patrol car.
[¶23.] The evidence of sanding at best only constitutes indirect evidence of a hazardous condition. See Palmiter, 387 N.W.2d at 395. The only connecting link is King‘s subjective belief regarding the condition of the road. See Id. King could believe the road was dangerously slippery when in fact it was not, or, vice versa, he could believe the road was not dangerously slippery when in fact it was. See Id. Had the sanding evidence been admitted, then King‘s explanation as to why it 7
[¶24.] Thus, the jury was provided with an abundance of direct testimony as to the conditions of the icy patch, and it cannot be shown that “impeaching” King by having him testify he was summoned to the accident scene by law enforcement and “ordered” to gravel it would have produced a different outcome in the trial.8
[¶25.] 4. WHETHER THE TRIAL COURT SHOULD HAVE GRANTED BLAND‘S MOTIONS FOR DIRECTED VERDICT AND JUDGMENT NOTWITHSTANDING THE VERDICT ON THE ISSUE OF COUNTY‘S NEGLIGENCE
[¶26.] Bland argues that her motions for a directed verdict and judgment notwithstanding the verdict should have been granted because the evidence in her favor was “clear and full, credible and not contradicted and so plain and complete that reasonable minds could come to no other conclusion.”
A motion for a directed verdict under
A motion for judgment n.o.v. is based on and relates back to a directed verdict motion made at the close of all the evidence.
[¶27.] Bland relies upon Bland I, where we stated that “We cannot infer from the statutes that County has permission to idly stand by while hazards knowingly exist on its roads.” 507 N.W.2d at 81. Bland is correct that County admits to a duty to maintain its roads and concedes knowledge of the icy patch on Loomis Road. However, whether it was reasonable to leave it unsanded was a question for the jury. In Bland I, we also stated that County was not obligated to remove all snow and ice on its roads, and that the question was for the jury whether County provided ordinary and reasonable maintenance. Id. at 81-82. We think reasonable minds could differ as to whether the County‘s maintenance was ordinary and reasonable, and further, that the evidence presented at trial, viewed in a light most favorable to the verdict or the nonmoving party, could reasonably support the verdict. The County reported no previous complaints, and the jury could reasonably conclude that Bland committed driver error. “Questions of negligence, contributory negligence and assumption of the risk are for the jury in all but the rarest of cases so long as there is evidence to support the issues.” Bauman v. Auch, 539 N.W.2d 320, 325-26 (S.D.1995)
[¶28.] 5. WHETHER BLAND‘S EXPERT SHOULD HAVE BEEN ALLOWED TO TESTIFY TO STANDARDS OF ROAD MAINTENANCE BY COUNTIES AND OTHER GOVERNMENTAL ENTITIES
[¶29.] Bland‘s offer of proof limits the scope of her argument to this Court on appeal. Her offer of proof was as follows:
Similarly, we have an offer of proof. Our offer is that our expert, one of the foremost experts in the country on this subject of snow and ice control, would verify that the recognized standard of care in this industry would require this sanding to have been done at this icy hazard. I believe he testified that way [by deposition]. But, that since it‘s an icy hazard, it‘s isolated and the road surface is different on both sides of it, and the hazard, which is part of what makes it a hazard, that he—that the generally accepted standard of care is for safety and that they have to take action, they cannot [stand by] and allow the hazard to knowingly be on the road. So, his opinion is very similar to law, in that he would explain that that is the practice which is followed in virtually every jurisdiction. End of offer.10
As with the previous issue, we must determine only whether a judicial mind could reasonably have reached this conclusion or whether the trial court abused its discretion. Application of Widdison, 539 N.W.2d 671, 676 (S.D.1995).
[¶30.] The use of expert testimony is governed by
[T]he determining factor in admitting expert testimony is if it would assist the jury in understanding matters that normally would not lie within a layman‘s breadth of knowledge. When opinions are excluded, it is because they are unhelpful and therefore superfluous and a waste of time.
Thus, the question becomes whether a juror would know from his or her own experiences whether sand is needed on ice. The trial court held that expert testimony was not necessary to assist the jury on the question of the necessity of sanding. Bland‘s offer of proof goes into no specifics which an expert might possess as to what types of icy conditions benefit from sanding, what types of sand should be used, whether to mix in salt, the amount of sand required per the size of the ice on the highway or any other technical data. It simply goes to whether sanding should have been done on the ice at the accident site.
[¶31.] As this Court observed in Homan v. Chicago & Northwestern Transp. Co., 314 N.W.2d 861, 862 (S.D.1982):
The presence of snow on a township road in late December is not an altogether unexpected event. Although, the presence of snow on a highway may indeed present a hazard to motorists, to hold that unre-10
moved [ice] causes a [county] highway to become out of repair would constitute a remarkable extension of duty imposed by
SDCL 31-32-10 [.]
As limited by Bland‘s offer of proof, we disagree with Bland‘s argument that road maintenance is not within a layman‘s breadth of knowledge. Anyone who has owned and maintained a sidewalk, driveway or even driven a car in South Dakota during the winter would be able to form their own conclusion as to whether a reasonable standard of care requires that an icy road be sanded.
[¶32.] Further, it is highly doubtful that some sort of purported “national standard” is legally relevant to South Dakota. The people of this State through our Constitution delegated supervision of the roads to the Legislature.
[¶33.] Considerations as to whether to sand or not to sand, and if so, how much, depends on the locale, weather conditions, traffic patterns and other criteria. What may be a snowstorm which immobilizes Dallas, may be only a minor inconvenience in Mitchell. See Estate of Arrowwood v. State, 894 P.2d 642, 650 (Alaska 1995) (in reviewing whether State erred in not closing an icy road, the court stated: “An evaluation of the reasonableness of the State‘s efforts must include consideration of numerous ... factors, such as the resources which are available, the physical area which must be maintained, and the actual procedures used to allocate those resources.“) In addition, Bland‘s offer of proof contains a statement that “his [expert] opinion is very similar to law, in that he would explain that that is the practice which is followed in virtually every jurisdiction.” It is doubtful that there is a practice followed in virtually every jurisdiction, since there is no uniformity among the states in recognizing governmental liability for ice and snow. See James O. Pearson Annotation, Liability, in Motor Vehicle-Related Cases, of Governmental Entity for Injury or Death Resulting from Ice or Snow on Surface of Highway or Street, 97 A.L.R.3d 11 (1980 & Supp.1996) (listing cases).
[¶34.] In accordance with our decision in Bland I, the trial court properly instructed the jury on the county‘s appropriate standard of care. More specifically, based on the abundance of eyewitness testimony as to the conditions at the accident site, the properly instructed jury with its own knowledge of everyday South Dakota winter life, could make the same determination as to the accident site at the time of the accident.
[¶35.] Recently in Kuper v. Lincoln-Union Elec., 1996 SD 145, ¶40, 557 N.W.2d 748, 760 we recognized that when addressing the question of the admissibility of so-called expert testimony, the trial court “still has the ‘task of ensuring that an expert‘s testimony both rests on a reliable foundation and is relevant to the task at hand.‘” (citing State v. Hofer, 512 N.W.2d 482, 484 (S.D.1994)) (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597, 113 S.Ct. 2786, 2799, 125 L.Ed.2d 469, 485 (1993)). Under our recent decisions when the trial court is ruling on the admissibility of purported expert opinion, the trial court “needs to exercise its gatekeeping function.” Kuper, 1996 SD 145, ¶41, 557 N.W.2d at 760. We cited approvingly the concept of limited use of expert witnesses in Zens v. Harrison, 538 N.W.2d 794 (S.D.1995), agreeing with the requirement made by the trial court in that case: “[i]n the Court‘s view, the [expert] witness can help the jury decide whether or not the workplace was reasonably safe, because I wouldn‘t know if it would be or not without an expert guiding me.” Id., 538 N.W.2d at 796. In the case now before us, the trial court applied the reverse of this rationale when it announced the basis for its ruling was, “I think [this] is not a type of an issue that requires expert testimony.... I
[¶36.] The trial court held that the proposed expert testimony also went to the ultimate issue, and under our decision in Zens, the trial court exercised its sound discretion in reserving that determination for the jury. With the adoption of
[¶37.] This testimony was not limited to the standard of care and therefore the trial court did not err in holding the proposed evidence went to the ultimate issue of negligence. Here, it was uncontested that the County did not gravel the accident site prior to the accident. Thus, if this failure violated the standard of reasonable care, it also amounted to negligence by the County. Subsequent questions of Bland‘s contributory negligence or assumption of the risk do not affect this conclusion. In Zens, we held that it was not an abuse of discretion for the trial court to preclude expert testimony which went to the ultimate issue of negligence. Id. at 796.
[¶38.] As with issue three, even if Bland established an abuse of discretion, she tied her claim of prejudice concerning this issue to the numerous other assignments of error which this Court has already rejected.11 Beyond that, the trial court‘s ruling applied evenhandedly to both sides. Prior to the trial, it precluded both parties from calling experts to testify on this limited point.
[¶39.] Nevertheless, an examination of the trial record establishes that Bland‘s expert, Robert Blackburn, was allowed to testify that the road on the day in question constituted an “icy hazard.” Blackburn was then allowed to testify, in his expert opinion, as to appropriate remedial measures, which included sanding.12 Bland‘s claim of prejudice is reduced to arguing that her expert should have been allowed to testify the County “should” have graveled the accident site, rather than what he was allowed to testify to, that the County “could” have graveled the accident site.
[¶40.] We hold that the trial court did not abuse its discretion in refusing the above offer of proof and that no prejudice resulted to Bland therefrom.
[¶41.] 6. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY INSTRUCTING THE JURY ON THE DEFENSE OF ASSUMPTION OF THE RISK
[¶42.] The trial court, over Bland‘s objection, instructed the jury on the defense of assumption of the risk.
An appellant has the burden to show not only that the instruction given was in error, but also that it was prejudicial error to the effect that under the evidence, the jury might and probably would have returned a different verdict if the appellant‘s instructions had been given. Sybesma v. Sybesma, 534 N.W.2d 355, 359 (S.D.1995) (citations omitted). We must de-
[¶43.] The elements of assumption of the risk must be shown by the defendant:
- that the plaintiff had actual or constructive knowledge of the existence of the specific risk involved;
- that the plaintiff appreciated the risk‘s character; and
- that the plaintiff voluntarily accepted the risk, having had the time, knowledge, and experience to make an intelligent choice.
Bauman, 539 N.W.2d at 326 (citing Westover, 488 N.W.2d at 900). Failure to establish any one of the above three criteria would be fatal to this defense before the jury. Id. Bland argues that the evidence does not support the defense because the ice was of a different character that day than it was on any previous trip made by her, and therefore, she knew of the general, not the specific, risk involved in driving on Loomis Road that day. Without knowledge of the specific risk, she argues, the defense of assumption of the risk must fail. We disagree, as it was a question for the jury.
[¶44.] “Ordinarily, questions of negligence, contributory negligence and assumption of risk are for the jury, provided there is evidence to support them.” Mack v. Kranz Farms, 1996 SD 63, ¶8, 548 N.W.2d 812, 814. The jury could reasonably conclude from the evidence that all three elements were met, and the instruction was properly given.
CONCLUSION
[¶45.] Having fully and carefully considered all Bland‘s claims of error, we find that she received a fair trial and affirm the verdict of the jury.
[¶46.] MILLER, C.J., and AMUNDSON, J., concur.
[¶47.] SABERS and KONENKAMP, JJ., concur in part and dissent in part.
SABERS, Justice (concurring in part and dissenting in part).
[¶48.] I concur except on Issues 3 and 5. I dissent on those issues because Bland was denied a fair trial as a result of the trial court‘s refusal to allow impeachment of County‘s employee, and its refusal to allow Bland‘s expert to testify as to reasonable standard of care. We should reverse and remand for new trial.
[¶49.] 3. THE TRIAL COURT ABUSED ITS DISCRETION BY REFUSING TO ALLOW IMPEACHMENT OF A WITNESS IN ACCORDANCE WITH THE EXCEPTION TO THE SUBSEQUENT REMEDIAL MEASURE RULE
[¶50.] Shortly after the accident, law enforcement called the highway department and requested sanding of the stretch of ice on Loomis road. Bland was not allowed to introduce evidence of the post-accident sanding, or the actions of County‘s employee in warning traffic at the scene, because it was incorrectly excluded under the “subsequent remedial measure” rule:
When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This section does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
[¶51.] Bland argues she should have been able to introduce the evidence under the impeachment exception to the rule. While County admits to a policy where this area was never sanded, even when its employees knew the ice was present, Bland attempted to show that the condition of the ice that day was different and more dangerous than normal. Assistant Department Superintendent King (King) testified by deposition that he stayed at the accident scene for approximate-
[¶52.] The trial court‘s evidentiary rulings are reviewed under the abuse of discretion standard. State ex rel. Dep‘t of Transp. v. Spiry, 1996 SD 14, ¶11, 543 N.W.2d 260, 263 (citations omitted). Under this standard, “not only must error be demonstrated, but it must also be shown to be prejudicial error.” Id. (quoting Shaffer v. Honeywell, Inc., 249 N.W.2d 251, 258 (S.D.1976)). Prejudicial error is “that which in all probability must have produced some effect upon the final result and affected rights of the party assigning it.” Id. (quoting K & E Land & Cattle, Inc. v. Mayer, 330 N.W.2d 529, 533 (S.D.1983)).
[¶53.] There is no basis to exclude evidence of subsequent remedial measures when offered to impeach testimony, as the rule expressly permits impeachment. Traylor v. Husqvarna Motor, 988 F.2d 729, 734 (7th Cir.1993).
It is the general rule ... that evidence of precautions taken and repairs made after the happening of the accident is not admissible to show a negligent condition at the time of the accident [but] such evidence may be admitted to impeach the testimony of a witness who has testified that the condition prior to the accident was not a dangerous one.
Love v. Wolf, 249 Cal.App.2d 822, 58 Cal.Rptr. 42, 48 (1967); cf. Kenny v. Southeastern Pennsylvania Transp. Auth., 581 F.2d 351, 356 (3rd Cir.1978), cert. denied, 439 U.S. 1073 (1979) (“[W]hen the defendant opens up the issue by claiming that all reasonable care was being exercised at the time, then the plaintiff may attack that contention by showing later repairs which are inconsistent with it.“) (citing 2 J. Weinstein & N. Berger, Weinstein‘s Evidence ¶ 407[03], [04] (1977)).
[¶54.] The majority claims Bland was not prejudiced. The prejudice resulted from the fact that the jury was denied the evidence it needed to properly perform its duty. The majority attempts to set forth, supra at ¶22, testimony which supposedly refutes any claim made by King downplaying the condition of the road. That testimony simply reiterates the icy conditions, which are essentially undisputed. What Bland was not allowed to impeach was King‘s assertion the road was not dangerous, when in fact he stayed at the accident scene for an hour to warn traffic something was wrong. This went beyond merely ordering sanding, and refutes King‘s characterization of the road as merely icy. Evidence tending to establish negligence should not be kept from the jury. The majority wants to sterilize the court proceedings to permit only evidence favorable to the county. That is not our job on appeal. As noted, evidentiary rulings are reviewed under an abuse of discretion standard. However, whether to allow impeachment also involves construction of
[¶55.] I agree with Bland that it was an abuse of discretion for the trial court to disallow this impeachment of King. Bland was prejudiced by the ruling because the jury was allowed to hear King‘s uncontroverted testimony that downplayed the condition of the road that day. We should reverse on this issue.
[¶56.] 5. BLAND‘S EXPERT SHOULD HAVE BEEN ALLOWED TO TESTIFY TO STANDARDS OF ROAD MAINTENANCE BY COUNTIES AND OTHER GOVERNMENTAL ENTITIES
[¶57.] Bland argues that the trial court erred when it excluded her expert‘s testimony regarding a reasonable standard of care in the maintenance of roads. As noted above, evidentiary rulings will not be dis-
[¶58.] County argues that it would not have made a difference if the experts testified on a reasonable standard of care because the jury would simply be presented with two different, subjective opinions. However, County‘s argument relates to credibility, not to admissibility. “It is a function of the jury to determine the credibility of the witnesses and to accept one witness’ version of the facts and reject another‘s.” Larson, 512 N.W.2d at 737. Without the excluded testimony, the only standard of care heard by the jury was County‘s policy or practice of not sanding visible stretches of ice.
[¶59.] The statute governing admissibility of expert testimony provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
[T]he determining factor in admitting expert testimony is if it would assist the jury in understanding matters that normally would not lie within a layman‘s breadth of knowledge. When opinions are excluded, it is because they are unhelpful and therefore superfluous and a waste of time.
Schaffer, 1996 SD 94, ¶18, 552 N.W.2d at 805 (finding no abuse of discretion in the admission of expert‘s testimony when it was sufficiently helpful to the jury under the standard set forth in
[¶60.] Apparently the trial court equated expert testimony concerning a reasonable standard of care with expert testimony concluding County was negligent. They are not the same, and the trial court‘s reliance on Zens v. Harrison, 538 N.W.2d 794 (S.D.1995), was misplaced. In that case, we affirmed the trial court‘s exclusion of the portion of an expert‘s testimony where he opined the defendant was negligent in his instruction and supervision of the workplace. Id. at 795-96. A review of Bland‘s offer of proof, supra ¶ 29, demonstrates that “whether County was negligent” was not the testimony which Bland sought to elicit from her expert. Furthermore, we have recently stated that “an expert‘s testimony is not inadmissible merely because it may involve an ultimate issue for the jury.” State v. Barber, 1996 SD 96, ¶37, 552 N.W.2d 817, 823 (relying upon
[¶61.] We stated in Bland v. Davison County, 507 N.W.2d 80, 82 (S.D.1993) (Bland I), that “evidence of an accumulation of snow or ice over a long period of time on a highway may present a hazard to motorists and creates a jury question as to the ordinary and reasonable maintenance provided by County.” (Emphasis added). Obviously, road maintenance is not within a “layman‘s breadth of knowledge,” Schaffer, supra, and therefore, expert testimony regarding the subject would be sufficiently helpful to the jury and should be admitted. Without the support of expert testimony to establish a standard of care by which County‘s conduct could be judged, the jury was denied evidence necessary to properly decide the issue of negligence. In effect, the jury was denied the tools to do its job.
[¶62.] The majority argues incorrectly that our decision in Zens points to exclusion of the expert testimony; a simple review of that
KONENKAMP, Justice (concurring in part and dissenting in part).
[¶63.] I join the majority writing, with the exception of Issue 5 regarding the trial court‘s decision to disallow expert opinion on industry standards. This opinion testimony was pivotal; otherwise, the jury was left in the dark about highway maintenance routines in other states. It would have been very helpful for jurors to know what standards other jurisdictions practice in dealing with chronic ice patch hazards, such as the one in this case.14
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Rule 702 abandons the common-law tradition that profoundly distrusted expert opinion testimony, both because it invaded the province of the jury and because a person could not be prosecuted for expressing an opinion. Under Rule 702, expert testimony is admissible when it will assist the trier of fact to understand the evidence. In short, the test is no longer necessity, but helpfulness.
Weinstein & Berger, Weinstein‘s Federal Evidence § 702.02(1). Accord Zens v. Harrison, 538 N.W.2d 794, 795-96 (S.D.1995); State v. Werner, 482 N.W.2d 286, 291 (S.D.1992); see Koch v. Southern Pacific Co., 266 Or. 335, 513 P.2d 770, 773 (1973) (test for admissibility is whether the expert is of “appreciable help to the jury ... whether the subject is such that the expertise of the witness gives ... special insight superior to that of” the jury).
[¶65.] In the face of the county‘s argument its own practices were reasonable, the jury was not permitted to hear expert opinion on standard practices in other states with similar winter conditions. Industry standards and standards of care are common grist for expert testimony. See In re Widdison, 539 N.W.2d 671 (S.D.1995) (in professional licensing case, expert testimony used to establish an appropriate standard for conduct and whether the person seeking to retain license met or fell below standard); Schrader v. Tjarks, 522 N.W.2d 205 (S.D.1994) (expert testimony on nursing standard of care); In re Schramm, 414 N.W.2d 31 (S.D.1987) (expert required to establish standard of care for dentistry); Magbuhat v. Kovarik, 382 N.W.2d 43 (S.D.1986), modified on other grounds, 445 N.W.2d 315 (S.D.1989) (expert testimony on standard of care for professional appropriate unless the area is within the common knowledge and comprehension of laypersons); Breivo v. City of Aberdeen, 15 Wash.App. 520, 550 P.2d 1164 (1976) (expert testimony allowable to provide “technical factors” beyond general knowledge of jurors in highway safety case);
[¶66.] Evidentiary rulings will not be disturbed absent a clear showing of an abuse of discretion. Zens, 538 N.W.2d at 795; State v. Hanson, 456 N.W.2d 135, 138 (S.D.1990). To assess whether there was an abuse we might find it enlightening to examine what the trial court allowed the opponent to present. As part of its case, the county called the Director of Operations for the South Dakota Department of Transportation (DOT), who testified over plaintiffs’ objection about written state and federal road maintenance standards for federally funded highways such as the road where this accident occurred. In explaining why it allowed this testimony for the county, and refused plaintiffs’ industry standards testimony, the court remarked, “Well for your benefit, I want to say, my knowledge of what has happened is I don‘t think that I ruled that someone couldn‘t perhaps refer to what other people do or what state standards there were. I didn‘t intend to foreclose that, it‘s got to come in the right way.”
[¶67.] Although the standards the DOT witness referred to were not specifically applicable to counties, he was nonetheless allowed to impart to the jury that no written federal or state guidelines “direct what the county should do to ‘maintain the road in a manner satisfactory.‘” The clear implication was that if no more precise standards controlled state roads, then certainly less-traveled county roads would have inferior maintenance standards. Contrast this with the prohibited opinion from plaintiffs’ expert, proposed in one of plaintiffs’ refused offers of proof:
Our offer is that our expert, one of the foremost experts in the country on this subject of snow and ice control, would verify that the recognized standard of care in this industry would require this sanding to have been done at this icy hazard. I believe he testified that way [in the deposition]. But, that since it‘s an icy hazard, it‘s isolated and the road surface is different on both sides of it, and the hazard, which is part of what makes it a hazard, that he—that the generally accepted standard of care is for safety and that they have to take action, they cannot not [sic] stand there by and allow the hazard to knowingly be on the road. So, his opinion is very similar to law, in that he would explain that that is the practice which is followed in virtually every jurisdiction.
Neither side‘s expert was permitted to testify on industry standards, but it is not satisfactory to infer that because both experts were similarly restricted, the ruling was fair. Plaintiffs had the burden of proof and the county was still able put before the jury that no written guidelines governed snow and ice removal for this road.
[¶68.] Not allowing plaintiffs’ expert to testify on maintenance routines for icy roads in other states was an abuse of discretion. Other courts have likewise found similar restrictions on expert opinion reversible error. See, e.g., Ceravole v. Giglio, 152 A.D.2d 648, 543 N.Y.S.2d 524, 526 (App.Div.1989) (“preclusion and improper restriction” of expert testimony regarding accepted practice among municipalities on painting pavement markings on roadways warranted reversal); Linkstrom v. Golden T. Farms, 883 F.2d 269, 270-272 (3rd Cir.1989) (error to exclude testimony of farm safety expert regarding safety practices of a reasonable, prudent farmer). I also join Justice Sabers’ writing on this issue.
[¶69.] For these reasons I would reverse.