*1 it appropriate failure do We believe to observe prejudiced by counsel’s to de- petition- that there comes a time when it is prejudice, so. To establish such witness’ counsel’s to advise a defend- proposed er must that fense show in the light have beneficial. See ant that facts testimony would been (Iowa State, surrounding the offense Nichol v. circumstances 1981); plight indeed and that there Pankey, State v. his serious escape to be from the harsh guilty he in fact truth that prior Trial came the conclusion counsel charged. It would be ineffective offense guilty plea that petitioner’s entry of the attorney, assistance indeed for a valuable not have been McMillan would inexperience out of or out a desire fight not seen the witness because client, lull a de- commiserate with his petitioner and Schoenbeck from the time believing into that the case pushed outside the trailer house were against him is serious than it actual- less Schoenbeck could establish whether ly guilt that the evidence of his is or subsequent to the prior to or was stabbed overwhelming it is slight when fact fight.3 in the step-brother’s involvement and irrefutable. trial, Also, McMillan subsequent to the he set forth his overwhelming pe- wrote a letter It was the evidence knifing incident did than, guilt petitioner rather titioner’s actually he had seen maintains, not disclose whether his trial counsel’s ineffective- stabbing.4 the tenuous nature ness, petition- Given induced and validated knifing inci- plea. McMillan’s change er’s his decision dent, failed petitioner has we conclude petitioner’s other We have considered prejudice he suffered material to show that and find them to be without contentions his trial counsel’s failure as a result post-convic- judgment denying merit. at trial. attendance secure McMillan’s tion relief trial contends his All the Justices concur. ineffective assistance counsel rendered Nielsen, failing impeach one Ross who by petitioner to
had been called corroborate incident. knifing Niel
his version of however, testimony, unexpected
sen’s trial version of the
ly State’s corroborated nature Niel
knifing incident. Given the testimony, we conclude that it cannot sen’s MORTENSON, legitimate strategy for than trial was other quickly terminate his direct trial counsel to of Nielsen. examination BRALEY, transcript review of the trial Our that trial counsel leads to the conclusion us 14257. No. interest in advis petitioner’s acted in best South Dakota. Supreme Court of as to ing plead guilty him to so avoid could well punishment maximum March on Briefs Considered likely imposed in event that have been Decided June guilty by petitioner found been State, As we stated Crowe 273-74, 194 N.W.2d at supra, 86 S.D.
239: himself Novy be noted that McMillan has also It should 3. Trial counsel testified knifing felony. testify oc- as to convicted been subsequent step-broth- to the curred to or fight. er’s involvement in the *2 garage. the selling Because she was the house, had plaintiff she asked the re- bangboard move hoop the and basketball garage. from the of the front brought the Plaintiff ladder from inside placed garage, the it on a concrete drive- up way and went the basketball hoop bangboard. climbing and After down getting some up tools he went again. plaintiff ladder As up went ladder, away the ladder slid roof. from the injured. Plaintiff fell After accident, was discovered that one of the footpads rubber anti-skid from one of legs missing. on the ladder was Plaintiff used the ladder on three noticed occasions and its condition. At the time of the accident he was not aware any any change defects the condition of the ladder. pad did not know the rubber missing from the ladder. She did any plaintiff
assist with the ladder. ladder, al- previously She had used the though inspected had neither she it nor any knowledge claimed defect. During jury trial to the mat- on this ter, the circuit court directed a verdict for defendant, holding plaintiff held status of an and that defendant had since she did know defect. Plaintiff contends defendant owed inspection, him ample support there was evidence to sub- jury the case to the for their mission of Burns, Falls, J. Robert Sioux for determination. appellant. Falls, Hoy, defend- Carleton Sioux in We was an believe appellee. ant and premises and vitee on the that defendant owed him that which an invitee has Judge. right expect. This court in appeals (plaintiff) (S.D.1978) Mortenson entry Braley of a directed verdict for stated:
(defendant) plaintiff’s ease the close of rule, As a during trial. We affirm. owes an invitee or business visitor reasonable or paying
Plaintiff was a
roomer
defend-
safety
house.
an alumi-
care for his
and is liable for
ant’s
Defendant owned
kept
duty.
ladder
num combination
which she
breach of
(a)
or by
knows
the exercise of reason-
argues that this rule includes
condition,
would discover
duty to
possessor’s
should realize that it involves an
dangerous conditions
care to discover
of harm to such invi-
unreasonable risk
give warning.
Restate-
make them safe
tees,
ment, Second, Torts
(b)
they will
*3
expect that
should
from all of the evi
It is obvious
danger,
or
or realize
will
discover
knew
matter that defendant
dence
this
it,
against
protect
fail
themselves
ladder and had
knowl
nothing about the
concerning the condition
the ladder
edge
(c)
care to
by plaintiff.
argument
The
fails
prior to its use
danger.
protect
against
is
them
presumes
which
case. Defendant owed
absent
this
Syas v. Nebraska Methodist
See also
duty
plaintiff the
reasonable
Foundation,
Hosp.
307
safety.
duty
for his
This
(1981);
Warren,
Mundy
268
v.
include the
of care did not
inspection
(Iowa 1978).
ladder.
high
duty
This
of reasonable care is the
upon
entrant
the land
duty
est
owed
urges
the ten
duty
imparts
affirmative
duty by
The
owed a
the landlord.
ant is
premises
unreasonably
same,
is
whether
is
duty owed the
Cul-Co.,
Redd, 577
conditions.
Inc. v.
a tenant or invitee.
(Tex.Civ.App.1979); Crotty v.
S.W.2d 557
duty
that there is no
owed
we find
Since
Inc.,
Industries,
Pa.Super.
237
Reading
by
defendant under the circum-
(1975);
Inofact, C.J., possessor FOSHEIM, distinguishes obligation of a WOLLMAN and DUNN, JJ., to an invitee and that owed to of land owed concur. 259; Crotty, A.2d mere licensee. 345 a
HENDERSON, J., dissents.
§
(Second) of
343 com
Restatement
Torts
(1965).
ment b
sitting
Judge,
for MOR-
GAN, J.,
actions,
Further,
disqualified.
negligence
in other
invoked,
imputed or con-
where the
HENDERSON,
(dissenting).
Justice
part
on
of the de-
structive
264
I dissent.
satisfy
may be sufficient to
(S.D.1978),
forth
sets
knowledge may
requirement, and lack of
care,
in no
rule
wholly immaterial. 62 Am.Jur.2d Prem-
be
§
dispositive
posses
of whether
Liability
ises
In
sor
land
“reasonable care” is not sus-
term
fact,
never
precise
this
issue has
it
definition, however,
ceptible
state.
heretofore been addressed
meaning in
given
must
relation to
Therefore,
my legal schooner would sail
Waters, 594
circumstances. McCormick v.
a different direction.
(Tenn.1980).
345 A.2d
Crotty,
S.W.2d 385
(Second) of
The Restatement
Torts
259; Smith,
example,
425. For
S.W.2d
(1965)provides:
clear that the
does
the Restatement is
dangers are
or obvi-
subject
when
known
possessor
A
to liabili- not arise
unless the
physical
invi- ous to the
ty for
harm caused to his
if,
anticipate harm
this obvious-
by a
tees
condition on
land
should
(Second)
if,
of Torts
ness: Restatement
only
§ 343A(1) (1965). Young v.
Ho-
Jefferson
Corp.,
(Mo.App.1976).
tel
Clearly, circumstances, in light of these forth, by just the rules factual set
issues remained which not have should example, from
been taken For (1)
is for decide whether reasonable care should danger
have discovered the realized it involved an risk of unreasonable (2)
harm; whether appellee should have
expected would not discover (3) danger; ap-
or realize the
pellee failed to danger. Further, might
realize
reasonably questioned whether the condi- activity
tion or was known or obvious to and if should have antici-
pated harm
obviousness. (Sec- relies on
Stenholtz the Restatement
ond) of Torts for the I standard. unfurl league that, fully adopt position
and more conditions,
der certain circumstances and owed to an invitee indeed an obligation
include Under ruling, I would reverse the trial court’s verdict.
directed
Barry BAYER, E. JOHNSON, Secretary Revenue Van Dakota, the State of South
Respondent
No. 14314.
Supreme Court of South Dakota.
Argued April
Decided June
Rehearing Denied
July