*1 SD 145 Peggy Douglas Kuper, L. D. KUPER Appellees,
Plaintiffs
LINCOLN-UNION ELECTRIC
COMPANY, Defendant Appellant, BOSSMAN,
Alvin Bossman d/b/a
Electric, Defendant. 19334.
No.
Supreme Court South Dakota. May
Argued 1996.
Decided Dec.
751
Michael J. Schaffer and Sandra K. Ho- glund Davenport, Evans, Hurwitz & Smith, Falls, plaintiffs Sioux for appel- lees. Fritz,
Thomas G. R. Alan Peterson and Mary Lynn, Jackson, A. Gubbrud of Shultz & Lebrun, Rapid City, Kennedy R. Charles Kennedy Wadena, MN, Nervig, appellant defendant and Lincoln-Union Elec- tric.
AMUNDSON, Justice. AMUNDSON, J.,
[¶ 1.] delivers the ma- jority opinion jury of the Court on the regarding instructions the standard required energy distributor, care for an preclusion testimony, jury of witness in- concerning structions circumstantial evi- dence, sufficiency evidence, and of the Is- I, II, IV, sues and V. KONENKAMP, J.,
[¶ 2.] delivers the majority opinion of the Court on submis- jury theory sion the case to the on the nuisance, Issue III. AMUNDSON, J., writing ma- the jority opinion as to the standard of care required energy distributor, for an preclusion testimony, jury of witness instruction con- cerning evidence, circumstantial and suffi- ciency evidence, I, II, IV, of the Issues V. Company Lincoln-Union Electric
(L-U) appeals $575,283.59 the verdict of in damages Douglas Peg- awarded to L. and gy Kuper D. (Kuper). We reverse and re- mand for a trial. new FACTS AND PROCEDURAL HISTORY electric, [¶ L-U is a rural nonprofit 5.] cooperative, 47-21, existing under SDCL ch supply power to electrical members Lincoln, Union, Minnehaha, Turner, Clay purchases Counties. electricity its from Kuper began dairy farming in Power, supplies Electric which East River Lennox, dairy sub- The facility known the Davis South Dakota. cows power as near electricity dairy in a barn. In carrying line the machine-milked station. The the farm individual after weeks from the substation three to four March 7,200 electricity volts. The transformer is at milking, Kuper noticed that one of heif- is reduced L-U distributes to farms kicking began stomping like was ers 120 and each farm transformer between Kuper contacted an electri- getting shock. house then delivered to the volts and is (Bossman), cian, Alvin Bossman to investi- pow- buildings. and farm Once the electrical at this that gate. It was time learned passes farm- through er the meter on the stray voltage1 causing be a factor could stead, to, electricity belongs and is 18, 1985, Kuper to react. On March the cow of, responsibility the customer. L-U, electricity which their co- notified stray voltage that 1.3 had operative, volts portion system of the from [¶ 6.] dairy between the barn’s floor and pole appeared meter individual substation to the side, pipeline. primary as milk This exceeds the transformer is known the steel Every- industry responsibility average which is the of L-U. and L-U’s stated electrical thing past pole or trans- the meter individual policy maximum of .5 volts. side, secondary former is called the which later, Kuper About six months no- Kuper. electricity responsibility strange and nervous behavior more ticed complete must circuit from the sub- make addition, began experi- the herd cattle. station to farm and back to problems mastitis.2 Ku- severe with ence and the primary substation. On both herd, per’s veterinarian examined their secondary system, wire sides of the a neutral conditions, eating living habits and and could accompanies “hot” neutral wire. The find a cause for the affliction. Other primary path to be the wire intended voltage symptoms that arose were to the the current to return transformer stall, to enter or exit the barn reluctance safety, For electrical the substation. agitation, high-stepping, not eat- irritation or *6 (This grounded. required wires must be miscarriages ing, kicking dancing, or of by Safety Code the National Electric calves, swishing, tail reduced but- abnormal (NESC), utili- governing is the code a which production. milk yields terfat and decreased maintenance.) ty’s South construction stray Kuper’s opined voltage veterinarian Dakota has codified the standards NESC Kuper’s problems. of was the cause these ground is a steel SDCL 47-21-75. rod prevent stray voltage asserts can evidence the soil. A called rod driven into wire going from into heat and interfere with cows primary attached the ground” “down development embryo of an after breed- the ground in neutral and the rod. This results Also, stray voltage ing. can cause mastitis the flowing into the earth. Part of current voltage the the bottom of a because irritates stays neutral and returns current on the wire prevents which the udder’s abili- cow’sudder cur- part
to the Another of the substation. ty off to ward bacteria. neu- returning to the substation on the rent June, 1990, May again Kuper In a ground down wire into tral wire will travel problems. about electrical contacted L-U the to the the earth to return the earth and uses by performed Numerous tests were L-U em- earth, into the the current substation. Once ployees Kuper’s on at this time. In farm pathways number back follows an infinite of June, pre- L-U installed an isolator complete the circuit. substation “ground problems.3 electrical This device elimi- This is known as current.” vent voltage primary voltage is meant Stray within a cow environ- 3.An isolator to disconnect (Ku- belong (L-U) there and that cow secondary ment that does from neutral neutral voltage a low level between two will feel. It is may if per). The isolation circumvented time. points can touch at the same that a cow ground together rods are too conduc- close point, a contact which causes This is known as part circuit. the cow to become udder. from bacteria in the 2. Mastitis results milk to due to This the cow’s be unusable causes thin, watery milk. clots or
nated the connection between the two neu- stray voltage sources that contributed to the path electricity trals so there would be no problem. Throughout day, Bodman was primary from the side neutral to the second- any voltage unable to detect levels which ary By side neutral. the end of 1991 or the problematic were of a magnitude on the beginning Kuper again called L-U Shortly farm. p.m. day after 3:00 on the for assistance when one of their children testing, Bodman change noticed a recorder received a in shock the barn. showing pipeline. .877 volts on a milk He cut primary grounding wire and noticed a May, Kuper In experienced voltage drop in the barn to .26 volts. Bod- completely electrical Bossman shock. re- man did not stray voltage find levels of Kuper’s dairy wired upon suggestion barn problematic, however, the farm to be one he did employees. Following of L-U’s the re- barn, recognize symptoms wiring stray voltage performed of the in the tests for dairy stray voltage problematic herd. Bodman found no lev- believed June, 1992, Kuper voltage initially els. In directly sold their came least from L-U’s productive bought replacement cattle and neutral Kuper’s conductor onto neutral con- replacement then, heifers. These isolation, cattle also ductor after indirectly it came stray voltage symptoms. showed On Octo- from L-U’s neutral through conductor 23, 1992, ber Kuper’s L-U tested farm and ground current. Bodman recommended that found no levels of concern. (1) Problems were L-U: not use metal to attach the conduc- house, however, hóg found in the which Ku- (2) utility pole; tors to a every check connec- (cid:127) per in rewired of 1992. only fall tion on their lines to make sure the connec- testing Kuper’s time L-U’s barn De- (3) good; tions were increase the size of L- voltage cember 1992 would show abnormal U’s neutral conductor to reduce its resis- levels was when performed. chores were (4) tance; and ground away move L-U’s rod part early the latter of 1992 or an L-U Kuper’s from transformer to eliminate the employee explained Kuper voltage how ground risk of current. On June can “ground become current.” ground Kuper’s rod for transformer was moved. suggestion, moving ground At While L-U was L-U’s this Wes Lane (Lane), rod, power specialist was testing electrical turned off to from Company, stray voltage Otter Tail farm. The Power came to the Ku- levels the barn per January farm in remained the power 1993. He took same when measure- to the accept- ments at various locations farm was and found turned off. voltage. able levels of completing After his By trial, the time *7 investigation, Lane report submitted his to milking only fifteen cattle because the herd Kuper 1993, February, and In Kuper L-U. had problems. severe health May, Before purchased dairy neighbor. cows from their 1992, Kuper only cow, had lost one which There had previous been no known health 1992, milk May, died of fever. Between and problems cows, however, with these after trial, the time of Kuper’s seven of cows died they Kuper’s were moved to barn the cows at or near the Kuper’s same location in the became nervous and hard to drive into the yard. trial, through From 1988 the time of newly barn. purchased One heifer miscar- Kuper many had to sell cows due to mastitis. March, 1993, ried her calf. Kuper pur- Kuper lost twelve to fifteen through calves chased from a L-U meter to measure 1993, miscarriages May, from until 1994. In
voltage. Kuper found in measurements the addition, 1995, twenty from 1992 to forty ranged barn from 7.25 volts to 10.85 volts. percent Kuper’s of cattle did not conceive During time, Kuper this same hired being after bred. (Bodman), expert Gerald Bodman in the stray voltage, field of 9, to come to September their farm Kuper [¶ 14.] On com and conduct every tests. Bodman tested against menced this action L-U and Boss- piece equipment of on-farm and did damages not find man for culminating from 1988 until materials, highly
tive
like a
Kuper's
waterline or
conduc-
pole
transformer
was next to the
ground
primary
tive soils.
leading
L-U’s
for the
neutral
waterline
to the barn.
error,
given was
only
the instruction
in
findings were re
that
of Lane’s
1995.4 Portions
by
to the
evidence,
prejudicial
called
also that was
error
in
but he was not
but
ceived
evidence,
jury
under
the
a
and L-U was not allowed effect
that
the
Kuper as witness
found
have
a
depose
might
probably
him
the trial court
would
returned
because
”
nontestifying expert under
Lane
a
v.
was
verdict.’
Dakotah
different
Chambers
trial,
6—26(b)(4)(B).5
Inc.,
(S.D.1992)
At
end of
Charter,
the
SDCL
488 N.W.2d
15—
verdict,
for directed
renewed a motion
L-U
(quoting Lytle Morgan,
Judgment
entered
was
(S.D.1978));
which was denied.
Sybesma
Sybes
see also
theory
negligence
of
for
against L-U on the
(S.D.1995).
ma, 534 N.W.2d
$573,792.16
years
through
for the
Kuper’s property
created a nuisance
L-U
Kuper
accepted
Both
and L-U
$1,491.43
damages,
in
in
amount
of
correct
jury instruction fifteen as a
statement
damage
trespass
not
or cause
L-U did
instruction,
jury
This
is
of the law.
which
Kuper’s
through negligence to
real estate.
Jury
Dakota Pattern Civil
Instruction
South
only
pretrial agreement, Kuper
to a
Pursuant
10-01, stated:
theory
re
on the
for which he
recovered
applied
present
the law as
Under
reward,
highest
negligence.
L-U
ceived
case, every person
responsible
injury
for
notwithstanding
ver
judgment
for
moved
another,
person
property
to the
Judgment was
and for a new trial.
dict
ordinary
person’s
such
want
caused
August
Kuper
on
entered
skill, subject
to the defense of
care
$573,792.16,
$129,081.13
pre
plus
sum of
contributory
negligence. When used
September
judgment interest. On
instructions, negligence
want
these
means
motions.
trial court denied both
these
ordinary
or skill. Such want
of such
care
following
issues:
presents
ordinary
exists when there
care or skill
jury
erroneously
I. Whether the
was
reasonably
failure to
which
is a
do that
on the
of care
instructed
standard
person
do or when there is
prudent
would
applicable to Lincoln-Union?
reasonably prudent per-
which
done that
trial
II. Whether the
court committed
do;
in each
son would
this
instance
precluded
when it
reversible error
exist-
the same or similar circumstances as
testimony
Lane?
in connection
the conduct which
ed
with
in sub-
III. Whether the trial court erred
under consideration.
jury
mitting
on the
this case
Kuper also submitted two other instructions
theory
nuisance?
care.
the issue of standard of
by not
the trial court erred
IV. Whether
twenty-one
instruction number
proposed
jury concerning cir-
instructing the
stated:
cumstantial evidence?
energy
sufficient
electrical
Whether
introduced
The distribution of
V.
dangerous activity
anyone
do-
highly
evidence to sustain
verdict?
ordinary
duty
under
to exercise
ing so is
errone-
I.
[¶ 16.] Whether
all
circum-
reasonable care under
*8
ously
the
of
instructed on
standard
persons
prevent injury to
to
and
stances
applicable
care
to Lincoln-Union?
requires
This
care commensu-
property.
danger
the
involved consistent
the
rate with
of review of
17.] Our standard
of
practical operation
the busi-
the
is well established.
with
court’s instructions
trial
“
show not
ness.
appellant
‘An
has the burden to
any
litigation
for
who
preparation
trial and
jury
tion of
did not find Bossman had caused
4. The
Therefore,
party to
damage Kuper.
expected
he
not a
to
to
called as witness at trial
is not
appeal.
this
exceptional
upon showing
circumstances
...
of
party
impracticable
it
the
which
under
seeking discovery
15-6-26(b)(4)(B) states:
5. SDCL
opinions
facts or
on
to obtain
opinions
party may
facts known or
A
discover
subject by
means.
other
the same
by
expert
who has been retained
held
by
party
anticipa-
specially employed
another
language
gleaned
This
from
v.Ward
La
In
Lovell v. Oahe Electric
Association,
creek
Cooperative,
396,
(S.D.1986),
Electric
83 S.D.
382 N.W.2d
344,
(1968).
trial, Kuper
163 N.W.2d
At
again
stated,
we
addressed this issue and
instruction,
withdrew this
since the trial
Dakota,
“[t]he settled law in South
as evi
agreed
give jury
court
to
instruction number
by
denced Ward v. Lacreek Electric Associa
twenty-three,
given
tion,
which was
Inc.,
584,
over the ob
83 S.D.
Because
nature of elec-
able care
pre
under all the circumstances to
tricity,
electricity
the distributors
of
1992,
injury.”
vent
In
we revisited this issue
required
highest degree
to exercise the
of
again upheld
and once
our decision in Ward.
injury
care to avoid
degree
to others. The
Westover v. East
Coop,
River Elec. Power
electricity
care of distributors of
is the
892,
(S.D.1992).
488 N.W.2d
degree
stan
by
which would
prudent
be used
changed.
dard has not
persons
instruction here
engaged industry,
under
was
in stating
electricity
correct
is a
like conditions and commensurate with the
However,
dangerous activity.
the trial court
dangers
practical opera-
involved and the
placed
committed error when it
highest
“the
plant,
guard
tion of
against
contin-
duty of care” standard on L-U.
gencies
reasonably
which can be
foreseen
anticipated. The,supplier
of the ser-
[¶ 20.] We next need to evaluate
vice,
electricity,
like
duty
is under a
whether the instruction
received
error was
warn when it
actual
has
or constructive
prejudicial. L-U claims that the instruction
potentially
notice that the service is
dan-
prejudicial
it
jury
because
confused the
gerous
supplied.
for the use for which it is
care;
as to
proper
what was the
standard of
added.)
(Emphasis
ordinary
highest
care versus the
degree of
argues that
there are two misstate-
law,
care. Under our
prejudi
settled
it was
(1)
ments of the law:
language stating
cial to
jury
instruct
using
wrong
(2)
electricity
dangerous activity;
is a
Kovarik,
standard
Magbuhat
of care. See
placement
“highest
degree
of care”
(S.D.1986);
Meier,
382 N.W.2d
Platt v.
Ward,
L-U.
we addressed the stan-
83 S.D.
14 n.
406 n. 3
dard
care for an electric association. 83 (1967).
S.D. at
property.” Id. This court directed the trial pert witness. granted The trial court Ku- court on retrial to omit this instruction and (Inter- per’s quash deposition. motion to suggested following instruction: estingly, part report by Lane’s was viewed The distribution of energy electrical is a experts because was used other highly dangerous activity anyone do- opinion.) to form their ing duty ordinary so is under a to exercise and reasonable care under all the circum- “[Admissibility of an ex prevent injury stances to persons pert’s opinion is within the trial court’s dis propei’ty. requires This care commensu- Widdison, cretion.” Application rate danger with the involved consistent (S.D.1995) (citing SDCL 19- practical
with the *9 operation of the busi- 15-2; Peery Dep’t Agriculture, v. 402 ness. 695, (S.D.1987); N.W.2d 696 Buckley v. Fredericks, Id. This Kuper’s 770, (S.D.1980)). instruction is identical to 291 771 proposed twenty-one, instruction number We will not reverse a trial court’s decision they which withdrew. “absent a showing clear of an abuse of dis-
757 26(b)(4)(b) Hill, Procedure Rule 463 Rule of Civil (citing Id. State cretion.” “ 15-6-26(b)(4)(B). (S.D.1990); 674, Logue, ‘[T]he identical to SDCL 676 State by party a trial witness (S.D.1985)). designation 151, mere thereby “expert” an does not transmute as continually tested [¶ 24.] acquired as experience that the witness An problem. unable to find a farm and was experience acquired that in an actor into he Lane as employee of L-U recommended ”7 Quar anticipation litigation for trial.’ perform alternative tests. who could someone Corp., Rail antillo v. Consolidated per- Lane and Lane secured Kuper contacted (W.D.N.Y.1985) 435, (quoting F.R.D. perform the tests. The L-U to mission from Inc., F.R.D. Corp. v. Slater Elec. Nelco January performed were on tests (E.D.N.Y.1978)). 411, Lane was hired to Kuper had not of L-U. with the assistance alleged problem on “diagnose” the attorney time. an at this or hired consulted treating analogous to farm. This is when prepared testing, Lane completing his After expert, may qualify as an physician, who directly mailed to L-U report which he discovery concerning subject the care paid employer, Lane’s Otter Kuper. Kuper Quarantillo, patient. of his See treatment inspection. Company, for Lane’s Tail Power F.R.D. at 437. 15-6-26(b)(4)(B) pro SDCL vides: prevent To an undue bene may facts known party A discover coyrt discovering party, trial fit to the has expert an who been opinions held discovery. may parameters for the set employed by another specially retained or deposed as deponent is to be Since the prepa- litigation or party anticipation “actor,” required to disclose he is not an expected to and who is not ration for trial gained knowledge opinions formulated or trial, only as as a witness at be called The fear of during preparations.... his 6—35(b) upon § a show- provided 15— allayed by Rule that was unfairness under exceptional circumstances ing of 26(b)(4) depo- a factor here as the is not party for the impracticable which solely capac- questioned in his nent is to be opin- discovery facts or seeking to obtain ity an “actor.” as subject by other means. on the same ions Nelco, court at 415. The Nelco 80 F.R.D. being However, leading Lane the facts state: went on to nontestifying ex- make him a do not hired an treated as Rather he should be pert. if of unfairness Significantly, the shadow Advisory ordinary See Committee witness. all, it would be this case at lurks within (1970).6 Note, Lane FRD '48 holding di- only by a transposed to form litigation January before this hired herein. the one reached rectly inapposite to (L-U July on was served evolved. 26(b)(4)(A) Rule were If the restrictions of filed complaint were and the summons facts, future the instant applicable to held 1993.) contacted September Lane was employ encouraged to as be parties would L-U, request at the suggestion of at the participants expert trial witnesses employees assist- Kuper’s counsel. L-U’s gave to their very which rise events testing. Finally, Lane during his Lane ed Thus, parties cloak discov- could lawsuits. directly report to L-U. copy of his mailed veil of Rule protective in the ery sources 26(B)(4)(A) im- thereby significantly previously have not We opponents of their However, pede rightful access Federal this issue. addressed knowledge of person is a who has “It 7. An “actor” Advisory note states: Committee 6. The prior to opinions sub-division were held noted which facts and should [26(b)(4)(B) expert not address itself to expert ] does being designated as an or involved prepara- acquired in was not whose information Corp., underlying litigation. 80 F.R.D. Nelco was an actor because he trial but rather tion for respect or occur- to transactions viewer with or rences that subject of the part matter of the expert be treated as Such an should lawsuit. added.) (Emphasis ordinary witness." *10 758 litigant preparation a the in for trial
to these sources. Such result would is to assist purpose clearly underlying in subvert the the formulation of theo- and to assist trial discovery available to the totally any which is to make This record is ries. devoid respective parties all facts in- relevant anticipa- that Lane evidence was retained in in See pending volved a action. FedRCivP litigation prepare or to 8 tion of for trial. 26(b)(1). Miller, Wright Arthur A. & R. Fed- Charles Furthermore, § at eral and Procedure 445 F.R.D. at 416. as stated in Practice 2032 80 (1994). Magbuhat, very 382 trial court a conclu- N.W.2d 45: The made sory finding nontestifying that Lane was a authority judge compel A trial has quashed expert deposition. his discovery impose and to sanctions.... However, designed is [this function]
compel production pro- and to of evidence Additionally, must L-U mote, stifle, finding- rather than truth they prejudiced by show that were the exclu process. severity The of the sanction must Kern, testimony. sion of Lane’s Treib v. tempered eq- with consideration of the (S.D.1994). 908, 915 found Lane uities. Less alternatives should be drastic job” had “done an in outstanding that L-U employed imposed are before sanctions Also, wiring testing and on farm. day in party’s which hinder a court and any type'of “to have L-U seems eliminated objective very litiga- thus defeat the of the stray voltage problem in [Kuper] has had ,tion, namely from to seek the truth those past.” explained Lane would have the tests (Em- knowledge who facts. have of the he conducted and the these results from (Citations omitted.) phasis original.) in Finally, he stated: “I tests. do not feel proper prevent L- The sanction would tobe voltage present levels recorded should regard- seeking from evidence from Lane U voltage problem.” testimony a Lane’s ing relationship Kuper. Rapid his with See certainly within falls the ambit for search Baron, City 88 S.D. truth, for the and L-U should be authorized (1975). Therefore, complete discovery with Lane. addition, earlier, noted as in excluding the trial court erred the testimo reality report part Lane’s was in received ny. nontestifying expert A can
into evidence. protective report his is ei lose status when IV. Whether the erred [¶ trial court 31.] presented during by used ther trial or other by instructing jury concerning experts opinion. their the formulation of circumstantial evidence? Stolte, Analysis Policy Kristie L. A See Exceptional Circumstances Standard: Is “Our standard of review S, Inc., Simply Step Another Coates AC & give requested the circuit court’s refusal to in Expert Truth Toward Search For is well instruction settled.... On issues (1992) (cit Discovery?, 37 SDLRev supported competent rec evidence ing Machinery, Pipe Heitmann v. Concrete ord, jury.” trial court should instruct the (E.D.Mo.1983)). F.R.D. Part of (S.D. Auch, Bauman v. report into evidence Lane’s was introduced 1995). trial required court is not by Kuper to demonstrate to what lacking support instruct on issues rec forming opinion. Bodman had his relied on give requested “[F]ailure ord. in Id. report or call wanted to admit the whole correctly law struction that sets forth the as a Lane witness. Jury prejudicial error. re instructions are they viewed as whole and are sufficient if The trial is to act as a court correctly jury. the law state and inform the wall, excluding gatekeeper, not as a effective prejudi Error not reversible unless report cross-examination of the allowed into demonstrating cial.” Id. The burden of expert. upon by evidence and relied another prejudice give in proposed in failure to surrounding The facts Lane’s data was how compiled just party important report contending as the struction is error. as nontestifying expert purpose of a Id. itself.
759 amplify, clarify presented jury instruc or tends to uncontradicted explain support or the in number four: evidence of the tion jury for prevailing party. verdict of the the happened an The mere fact that accident context, In such a it our to becomes task parties damages and the sustained because review the record and determine whether itself, accident, in and does not of such of any to there is substantial evidence allow rise the give to an inference that accident to This minds differ. court reasonable by anyone. was caused weigh does not the evidence and substitute this in have examined instruction the We jury. judgment its for the that of The Lund, past. See v. 293 N.W.2d Del Vecchio jury likely upheld decision the to be of 474, (S.D.1980); v. 476-77 Henrichs Inter questions negligence ... as of are for the Lines, 267, 278, 111 City Bus 79 S.D. N.W.2d the in except determination of all the 327, (1961); City Rapid 332 Orrison v. of (Quotations rarest instances. of and cita- 489, City, 76 S.D. 74 495 N.W.2d omitted.) tions (1957). However, Henrichs, in recog- we ruling regarding will jurisdictions We not overturn a nized that most it is not “[i]n granted whether trial ordinarily a new should be with error to refuse or fail to reversible equiva- showing out a of an give an or an clear abuse discretion. ‘unavoidable accident’ (S.D. 891, instruction, Berghorst, Dartt v. 484 894 the N.W.2d lent accident since substance 1992). An abuse of is when no any usually discretion such instruction covered “ mind, ‘judicial in view of the law and the given, especially those other instructions case, particular cause, circumstances of could negligence, proximate and burden of ” reasonably have at reached such conclusion.’ proof.” 79 at 111 N.W.2d 332 S.D. omitted). 474 (quoting Weyrens, Id. Jensen (quotations and citations Under (S.D.1991)). case, we the theories advanced this direct give the trial court to this instruction [¶ 37.] L-U claims three errors this .under jury on retrial. first whether issue. The assertion addresses Second, expert. as an L- qualified Bodman introduced [¶ 34.] V. Whether alleges profits of lost U the evidence sufficient evidence to sustain ver- Third, justify L- insufficient to the verdict. dict? losses U that the evidence of for claims We examine the record to justify insufficient to death cows was competent whether there is determine verdict. support evidence verdict. substantial Testimony A. Bodman’s (S.D. Assam, 162, 165 Zee v. 336 N.W.2d 1983). light is examined evidence Opinions experts are admissible [¶38.] verdict, gives most favorable to the 19-15-2, scientific, under techni- “[i]f SDCL all prevailing party the benefit of reasonable cal, knowledge will specialized assist other Westover, inferences. the trier of fact to understand evidence issue, a witness determine fact Karl’s, Inc., Bridge In [¶36.] skill, knowledge, qualified expert by as an (S.D.1995), recog we education, may training, or experience, testi- reviewing motions for nized standard fy opinion form of or other- thereto in the judgment verdict and notwithstand directed wise.” ing the verdict: Daubert v. Merrell Dow Phar of the circuit Our standard review Inc., 579, 592-93, maceuticals, U.S. court’s denial of a directed verdict and of jury’s L.Ed.2d 482-83 [the] determination in favor S.Ct. (1993), Supreme States Court We must ex- the United plaintiff is well established. testimony expert light held that before scientific most favor- amine the evidence (1) received, give may be shown that: non-moving him must party able to the (2) tested; subjected it has it has been all inferences. been the benefit of reasonable (3) the evidentiary peer publication; review moving party is entitled potential rate of error must be only known or consideration where its evidence (4) known; and to what extent it gatekeeping has received cise its Expert opin- function. general acceptance. The neqd Daubert Court ex ions still a reliable foundation. In this *12 plained: case, the trial court never ruled whether or subject adjective expert’s opinion not the of implies “scientific” this rested
grounding in on a procedures the methods and reliable foundation. In order to have a review, Similarly, meaningful of appellate always science. the word “knowl- we state edge” subjective connotes more than belief trial court must rule or have the unsupported or speculation. opportunity alleged term to rule on errors. This “applies any body of known facts or to foundational determination was not made. any body Therefore, of ideas inferred from such facts on remand we instruct the trial accepted good or as grounds.” truths on complete court to this task accordance Webster’s Third New International Dictio- opinion. with this (1986). nary course, 1252 Of it would be subject unreasonable to conclude that the profits B. Lost testimony of scientific must be “known” to [¶ L-U claims 42.] that the lost certainty; arguably, there are no certain- profits testimony was in error for it was ties science. faulty object based on data. L-U failed to 590, 2795, 509 at U.S. 113 at S.Ct. 125 admissibility testimony of this at trial L.Ed.2d at 481. preserve and failed to appeal. this issue for Dornbusch, accepted 682, [¶ 40.] We See State v. Daubert 384 N.W.2d 686 (S.D.1986). expert testimony A.I., test for scientific in State v. As we stated in In re 289 Hofer, (S.D.1994). 512 (S.D.1980), 484 See N.W.2d 249 “[generally, er Schweitzer, 156, 159 also State v. 533 N.W.2d brought ror must be to the attention of the (S.D.1995). Although general acceptance in trial court apparent as soon as it is community scientific longer is no re object failure to at a time when the court can Daubert, quired, 589,113 509 U.S. at at S.Ct. take precludes appellate corrective action re 2794,125 judge L.Ed.2d at “the trial still incompetent view.” Even evidence which is ensuring has the ‘task expert’s that an objection may admitted without be consid testimony both rests on a reliable foundation ered to have “the same force and effect as and is relevant to the task at hand. Perti proper Noah, evidence.” Hannahs v. 83 nent evidence scientifically based on valid (1968) S.D. 681 ” principles satisfy will those demands.’ (citations omitted). Hof er, Daubert, 512 at (quoting 484 509 We have [¶ 43.] examined the other issues 597,113 2799,125 atU.S. S.Ct. L.Ed.2d at presented by L-U and find them to be of no 485). merit. We reverse and remand for retrial opinion. Bodman’s consistent with this credentials are: (1) he has worked in stray the field of voltage 1975; (2) MILLER, C.J., SABERS, since professional he has written papers subject GILBERTSON, JJ., ground on the KONENKAMP and current or neutral concur. return current which pre have been (3) conferences; sented at several he has KONENKAMP, Justice, writing investigated phenomenon voltage majority opinion on the submission of the (4) approximately farms; dairy he jury theory case to the on the of nuisance. qualified expert has been as an on either the III. Whether the trial court subject stray voltage ground or current in submitting erred in this case to the Wisconsin, Michigan, coiuts of Minneso theory on of nuisance? ta, Nebraska, Iowa, Missouri and Kansas.
The trial court
qualified
stated that Bodman
governed by
[¶ 47.] Nuisance is
as an expert. Even under DaubeH and our SDCL 21-10-1: “A nuisance consists in un-
it,
following
recent
laivfidly
act,
decisions
when the trial
doing
omitting
perform
added).
court
ruling
admissibility
on the
duty_”
of an
(Emphasis
Although
expert opinion, the trial court needs to exer-
this Court discounted the term “unlawful” in
public
having legislative
sanc
of a
nature
Drysdale, 66 S.D.
N.W.
Johnson
(1939),
nonetheless
nuisances.
legislature has
tion should not be declared
See
our
utility
public
Woods, Annotation,
can
quite clear that
made it
cited in E.E.
Elec
cases
“Nothing
designated a nuisance.
Generating
Transformer,
not be
tric
Plant
the ex
or maintained under
which is done
(1965)(citing
holding
cases
A.L.R.3d
deemed a
authority of a statute can be
press
utility
legislative authority not
public
under
Rural electric
21-10-2.
nuisance.” SDCL
nuisance,
negligence in the
absent
hable
cooperatives
specifically
authorized
See, e.g.,
operation).
State Mo.
manner of
required
They are
law.
ch 47-21.
SDCL
Army,
Dept.
Ex. Rel. Ashcroft
*13
construct,
maintain their electri
operate, and
(8th
1297,
Cir.l982)(applying Mis
F.2d
1304
systems in
with
accordance
cal distribution
operation
public
not
nui
souri
of dam
law—
Safety
National Electric
provisions
of the
law);
by
it was authorized
sance because
Code,
adopted in South Da
which has been
Maddox,
Banking
116
Georgia R.R. &
Co. v.
Armory Park v.
47-21-75. See
kota. SDCL
64,
ordinary
(1902)(holding
harm.... It is not to make an MILLER, C.J., SABERS, J., [¶ 52.] and invasion intentional that 'the actor realizes concur.
or should realize that this conduct involves
GILBERTSON,
a
AMUNDSON and
causing
serious risk or likelihood of
JJ., dissent.
invasion.
[The
must either act
actor]
for
purpose
causing
it or
that it
know
AMUNDSON,
(dissenting
Justice
resulting
substantially
or is
certain to re-
III).
on Issue
...
sult.
(Second)
§
Restatement
of Torts
825 cmt. c.
I
Konenkamp’s
[¶ 55.] dissent as to Justice
knowledge
element on which'the defini- opinion regarding
A
nuisance.
nuisance ex
tion of “intentional invasion” turns exists not
party
ists
a
unlawfully
when
does
act or
an
power company
when the electric
knows it is
perform duty
omits to
a
“annoys,
which
in
providing electricity
by-prod-
with a natural
jures,
endangers
comfort, repose,
or
being stray
current,
uct
voltage
ground
health,
safety
or
any way
others
in
[or]
company
but when
phenom-
knows these
persons
renders other
insecure
life or in
occurring
levels,
ena are
at unreasonable
21-10-1;
property.”
the use of
SDCL
see
causing
dairy
harm to
cows and continues to
Dokken,
Kryger
also
386 N.W.2d
482
Here,
act to cause the harm.
in an effort to
(S.D.1986) (stating “a nuisance involves an
problem,
Kuper
alleviate the
L-U visited the
perform duty”);
unlawful act or omission to
seventy
farm
response
over
times in
to their
Lennox,
City
Greer v.
79 S.D.
dairy
concerns about the
herd’s reactions to
(1961).
N.W.2d
A nuisance is either
stray voltage.
public
private.
or
SDCL 21-10-38 Other
offending
jurisdictions
cases where the
permitted
ele-
have
nuisance claims
ments, i.e., stray voltage
ground current,
stray voltage.
Johnson v. Steele-Waseca
phenomena
Elec.,
(Minn.Ct.
naturally occurring
Co-op.
production
electricity, annoying only
App.1991); Kolpin,
means to avoid the nuisance general by
which are used others en-
gaged in the same business is no defense. fact, may a nuisance be created or highest degree
maintained with the best or
of care[.] (citations
Lindahl, Liability Modem Tort Law & Liti- (RevEd 1995).
gation § 35.08 at 201 There-
fore, I would hold the trial court did not err submitting theory jury. the nuisance to the I am authorized to state that Justice joins in
GILBERTSON this dissent. SD 2 LOEWEN, S.
William Claimant Appellant, FREIGHTWAYS, INC.,
HYMAN
Employer Appellee,
Liberty Company, Mutual Insurance Appellee.
Insurer and
Nos. 19644.
Supreme Court of South Dakota.
Considered on Briefs Dec. 1996.
Decided Jan.