Richard PARKER, Plaintiff and Appellee, v. CASA DEL REY-RAPID CITY, INC., Defendant and Appellant.
No. 21810.
Supreme Court of South Dakota.
Decided Feb. 27, 2002.
2002 SD 29 | 641 N.W.2d 112
Argued Oct. 1, 2001.
Gregory G. Strommen of Costello, Porter, Hill, Heisterkamp, Bushnell & Carpenter Rapid City, South Dakota, Attorney for defendant and appellant.
AMUNDSON, Justice.
[¶1.] Richard Parker was injured while making a delivery from his truck to Casa del Rey in Rapid City, South Dakota.1 A jury awarded Parker $290,000 for his damages resulting from the fall. Casa del Rey appeals. We affirm.
FACTS
[¶2.] On December 21, 1995, Parker, an experienced truck driver, was making deliveries for Nobel/Sysco Company. As he progressed into his route, Parker stopped at Casa del Rey between 9 and 10 a.m. Parker backed his truck trailer up near the unloading dock behind the restaurant and parked so that a gap was left between the trailer and the dock.1 There is conflicting testimony of whether the gap was 10-12 inches or 12-18 inches. In addition, the truck trailer was a bit higher than the unloading dock, creating a step down onto the dock.
[¶3.] After parking, Parker got out of his truck and crossed the parking lot to the steps of the unloading dock. Parker was aware that a light snow had fallen during the previous night. Additionally, he had noticed grease present on the dock during prior deliveries. Parker alleges the snow had made the greasy film on the steps “different” than he was used to, but proceeded up the steps and across the dock anyway because he did not believe the condition of the area was dangerous. He stepped off the dock into his trailer where he used a two-wheeled cart to haul five or six boxes of chips, which were stacked taller than he was, and pushed the cart out of the truck onto the dock.2 As he did, his foot slipped from beneath him just
[¶4.] At trial, Casa del Rey claimed that no grease was present on the steps on the day Parker fell. The manager of Casa del Rey, Robert Krebsbach, testified that his employees rarely spilled grease on the dock as they were removing it from the restaurant and carrying it outside to a receptacle. If they did, however, Krebsbach explained that it was restaurant policy to use a heavy-duty degreaser to clean up such spills. Casa del Rey also argued that Parker was contributorily negligent in the way he parked and unloaded the truck and that he had assumed the risk of injury. A jury found in favor of Parker and awarded him $290,000 in damages. Casa del Rey appeals the following issues:
- Whether the evidence was sufficient to establish negligence.
- Whether Parker was contributorily negligent and assumed the risk as a matter of law.
- Whether the trial court correctly instructed the jury as to the law governing the case.
- Whether the trial court should have allowed the admission of evidence regarding a previous fall at Casa del Rey.
- Whether the trial court should have allowed evidence of the feasibility of safer equipment provided by Parker‘s employer to be presented at trial.
- Whether the trial court properly admitted a photograph of the premises into evidence.
STANDARD OF REVIEW
[¶5.] Casa del Rey‘s claim that the evidence was insufficient to establish negligence is reviewed “in the light most favorable to upholding the verdict.” See Engberg v. Ford Motor Co., 87 S.D. 196, 201, 205, 205 N.W.2d 104, 106 (1973). The same standard applies when determining if assumption of the risk and contributory negligence exist as a matter of law. See Stenholtz v. Modica, 264 N.W.2d 514, 516 (S.D.1978) (stating when “determining whether the evidence on the plaintiff‘s behalf was sufficient to warrant submission to the jury, the plaintiff is entitled to have every controverted fact resolved in his favor and to have the benefit of all reasonable inferences that can be deduced from the evidence“). We have previously stated that the standard of review for issue three regarding jury instructions is, as follows:
On issues supported by competent evidence in the record, the trial court should instruct the jury. The trial court is not required to instruct on issues lacking support in the record. Failure to give a requested instruction that correctly sets forth the law is prejudicial error. Jury instructions are reviewed as a whole and are sufficient if they correctly state the law and inform the jury. Error is not reversible unless it is prejudicial. The burden of demonstrating prejudice in failure to give proposed instruction is on the party contending error. This Court has repeatedly stated that “[a] trial court must present only those instructions to the jury which are supported by competent evidence and set forth the applicable law.”
Overfield v. Am. Underwriters Life Ins. Co., 2000 SD 98, ¶11, 614 N.W.2d 814, 816
DECISION
[¶6.] 1. Whether the evidence was sufficient to establish negligence.
[¶7.] Under the laws of this state, to establish negligence the plaintiff must prove “duty, breach of that duty, proximate and factual causation, and actual injury.” Fisher Sand & Gravel Co. v. South Dakota Dep‘t of Transp., 1997 SD 8, ¶12, 558 N.W.2d 864, 867 (citing Tipton v. Town of Tabor, 538 N.W.2d 783, 785 (S.D. 1995)). In this particular case, there is no dispute that Parker was a business invitee of Casa del Rey‘s. Thus, Casa del Rey owed Parker a duty to exercise “reasonable or ordinary care” while on its premises. Mitchell v. Ankney, 396 N.W.2d 312, 313 (S.D.1986).3 Reasonable and ordinary care requires Casa del Rey to keep its premises safe and warn any invitee, like Parker, of any “concealed, dangerous conditions known to ... [Casa del Rey].” See id. (citations omitted). In analyzing the duty owed to an invitee, this Court has stated that the “duty to warn is a subpart of the duty to keep the property reasonably safe. The duty to keep the property reasonably safe is, in turn, a subpart of the general duty to exercise reasonable care.” Id. This Court has additionally acknowledged that landowners are not expected to insure a safe condition, but rather must warn of a dangerous condition only if the condition existed for a time long enough to “justify the inference that he had knowledge of its existence.” Kryger v. Dokken, 386 N.W.2d 481, 483 (S.D.1986) (holding that a property owner with no knowledge of an abandoned well did not breach a duty under the nuisance laws). Furthermore, if a danger is reasonably obvious or known to the invitee, the landowner is excepted from liability unless he expects harm will occur in spite of the invitee‘s knowledge of the danger. See Stenholtz, 264 N.W.2d at 516 (summarizing Restatement (Second) of Torts § 343A (1965)).
[¶8.] Casa del Rey argues that the evidence at trial was insufficient to establish a claim of negligence for an array of reasons.4 Parker, however, points out that Manager Krebsbach admitted employees occasionally spill grease on the unloading dock, which could create a slippery surface. Additionally, Parker testified that grease was present on the steps and dock. And, although Parker saw the grease and snow, he testified that it did not appear dangerous to him. We must review these facts in a light most favorable to the verdict, and there was clearly evi-
[¶9.] 2. Whether Parker was contributorily negligent and assumed the risk as a matter of law.
[¶10.] Contributory negligence is conduct by the plaintiff that amounts to a “breach of duty which the law imposes upon persons to protect themselves from injury, and which, concurring and cooperating with actionable negligence for which defendant is responsible, contributes to the injury complained of as a proximate cause.” Starnes v. Stofferahn, 83 S.D. 424, 432, 160 N.W.2d 421, 426 (1968). Furthermore, this state follows the rule that if Parker‘s contributory negligence was “more than slight,” the defendant is not liable for his own negligence. See id. at 433, 160 N.W.2d 421.
[¶11.] Assumption of the risk exists under the precedent of this state when an individual knows that the danger exists, appreciates the character of the danger and “voluntarily accept[s] such risk by having a sufficient amount of time, knowledge, and experience to make an intelligent choice.” Myers v. Lennox Co-op. Assoc., 307 N.W.2d 863, 864 (S.D.1981). See also Mack v. Kranz Farms, Inc., 1996 SD 63, ¶19, 548 N.W.2d 812, 814 (enumerating the elements of assumption of the risk); Nelson v. Nelson Cattle Company, 513 N.W.2d 900, 904 (S.D.1994) (same).
[¶12.] Casa del Rey argues that the evidence shows Parker left a gap between the trailer and dock, obscured his vision with boxes and failed to use other available methods of unloading. Parker, however, also presented evidence that he did not appreciate the risk of falling, even though he saw the snow and the grease. He testified he did not realize the danger that the condition of the dock presented. Additionally, there was testimony that the gap between the dock and trailer was a result of the cramped space in which the truck had to maneuver behind Casa del Rey, and not due to Parker‘s negligent parking. Also, there was testimony that grease was allowed to accumulate on the dock with the knowledge of Casa del Rey personnel. Thus, there was conflicting evidence on the dock‘s condition at the time of the incident. In such a case, it is not up to this Court to determine which sides’ witnesses were most credible. See Mash v. Cutler, 488 N.W.2d 642, 646 (S.D.1992) (stating “[t]he credibility of witnesses, the weight to be accorded their testimony, and the weight of the evidence must be determined by the trial court and we accord the trial court some deference based on its observations of the witnesses and the evidence“). Contributory negligence and assumption of the risk are normally questions for a jury to decide unless “the facts are not in dispute or of such a nature that reasonable men could not differ.” Myers, 307 N.W.2d at 864. See also Hoffman v. Royer, 359 N.W.2d 387, 390 (S.D.1984) (quoting Stoltz v. Stonecypher, 336 N.W.2d 654, 657 (S.D.1983), which said, “[q]uestions relating to negligence and contributory negligence are questions of fact for determination by the jury in all except the rarest of instances“); Mack, 548 N.W.2d at 815 (stating “fact questions, such as assumption of the risk, are normally issues a jury decides“). In addition, a plaintiff may only be denied recourse “as a matter of law” under these two theories if all of the elements are “conclusively established.” See Stenholtz, 264 N.W.2d at 518; Smith v. Community Co-op. Assoc. of Murdo, 87 S.D. 440, 442, 209 N.W.2d 891, 892 (1973).
[¶13.] 3. Whether the trial court correctly instructed the jury as to the law governing the case.
[¶14.] Casa del Rey claims that the trial court‘s instructions to the jury were “incomplete, incorrect, or inappropriate” and that the trial court‘s failure to give several instructions was error. First, the trial court need only instruct the jury on issues “supported by competent evidence in the record.” Sundt Corp. v. South Dakota Dep‘t of Transp., 1997 SD 91, ¶19, 566 N.W.2d 476, 480. If the instructions given “mislead, conflict, or confuse the jury, it constitutes reversible error.” Wallahan v. Black Hills Elec. Co-op., Inc., 523 N.W.2d 417, 422 (S.D.1994). We will not reverse the trial court‘s decision regarding jury instructions unless the complaining party was prejudiced by it. See Overfield, 2000 SD 98, ¶11, 614 N.W.2d 814, 816 (citations omitted). We must, however, look at the instructions “as a whole” to determine if they adequately inform the jury on the law. See id.
[¶15.] A complaining party must have properly objected to an instruction to preserve the issue for appeal. See Grynberg v. Citation Oil & Gas Corp., 1997 SD 121, ¶28, 573 N.W.2d 493, 503.
[¶16.] In this case, Casa del Rey argues that the trial court erred by incorrectly instructing the jury as to causation and premises liability.5 The record indicates that Casa del Rey did not properly object to the instructions given regarding causation or premises liability, thus we do not address these issues on appeal. See id. at ¶17.6 Even if the objection was
[¶17.] Casa del Rey also argues that the court below erred in failing to include assumption of the risk as one of the issues in the case and failed to instruct the jury properly on Parker‘s employer‘s duty to furnish Parker with safe equipment. During the settlement of instructions, Casa del Rey objected to the trial court‘s instruction number 14 regarding the issues of the case.7 As is evident, this instruction is void of any reference to assumption of the risk as an issue in the case. The trial court‘s instruction on the issues of the case was void of any reference to assumption of the risk. Plaintiff objected to the court‘s instruction, but the trial judge overruled it. Additionally, the trial court refused to accept Defendant‘s proposed instructions, one of which defined assumption of the risk as an issue, and another that expounded on assumption of the risk.
[¶18.] The record does contain an instruction where the elements of assumption of the risk were explained to the jury.8 In addition, other instructions ex-
[¶19.] Next, Casa del Rey argues that the trial court erred by denying its proposed jury instruction on an employer‘s duty to provide a safe work place for the plaintiff, which read as follows:
An employer has a duty to furnish an employee with a reasonably safe place to work. This includes the duty of establishing proper methods of work and adequate supervision of the work and safe equipment with which to perform the work. If the employee is mature and sensible and has had some experience in the work being done, he must look after himself as to all obvious dangers in the details of the work.
Casa del Rey relied on Jackson v. Van Buskirk, 424 N.W.2d 148, 149 (S.D. 1988), which held employers have a duty to furnish a safe work place for employees, but did not deal with nonparty negligence. The trial judge ruled the jury should not be given the instruction, as that would “unduly interject” a nonparty into the case. Notwithstanding this reasoning, the trial judge went on to state that it was “fair game” to argue the employer‘s duty to the jury during closing argument. This must have been based on the fact that there was evidence admitted during trial on an employer‘s duty.
[¶20.] This Court has held that if there is “competent evidence” in the record regarding a particular issue, then the jury should be instructed on that issue. Wallahan, 523 N.W.2d at 422. We cannot permit juries to deliberate regarding any issue without first receiving proper guidance. This jury was apparently authorized to consider the factual evidence on the employer‘s duty without receiving any law on the issue or being told what law to apply to the evidence regarding that issue.
[¶21.] In the case of Steele v. Encore Manufacturing Co., Inc., 7 Neb.App. 1, 579 N.W.2d 563, 568 (1998), the Nebraska Court of Appeals held as follows:
[T]he general rule in Nebraska is that where it is claimed that the conduct of a nonparty is the sole proximate cause of an accident, the jury should be advised that if it finds that the nonparty is the sole proximate cause, then its verdict should be for the defendant. This is merely a way of instructing the jury that
it is appropriate for a defendant to deny proximate cause by introducing evidence that someone else was the sole proximate cause. Although the above stated rule has been the general rule in Nebraska for quite some time, the present situation is unique and presents an issue of first impression in Nebraska for one reason: The nonparty third person whose negligence is alleged to have been the sole proximate cause is the plaintiff‘s employer. Although we acknowledge that employers cannot be held liable in tort for injuries to employees covered by the Nebraska Workers’ Compensation Act, we do not, as Steele urges, conclude that a defendant is therefore barred from arguing in a negligence action that the employer‘s negligence was actually the sole proximate cause of the employee‘s injuries. Regardless of the plaintiff‘s not being entitled to tort compensation from the employer, if the employer‘s actions are the sole proximate cause of the employee‘s injuries, then it follows that the defendant‘s conduct is not a proximate cause, and the defendant should be entitled to argue and have the jury instructed accordingly. Numerous other courts, both federal and state, have acknowledged that evidence of an employer‘s negligence is admissible and that appropriate jury instructions are required if the evidence is such that a jury should find that the employer‘s negligence is the sole proximate cause of the employee‘s injuries. See McClish v. Niagara Mach. & Tool Works, 266 F.Supp. 987 (S.D.Ind.1967); Gatlin v. Cooper Tire & Rubber Co., 252 Ark. 839, 481 S.W.2d 338 (1972); Wagner v. Clark Equip. Co., Inc., 243 Conn. 168, 700 A.2d 38 (1997); Chumbley v. Dreis & Krump Mfg. Co., 521 N.W.2d 192 (Iowa App.1993); Caulfield v. Elmhurst Contracting Co., 268 A.D. 661, 53 N.Y.S.2d 25 (1945) (other internal citations omitted). There is no question that an employer‘s negligence is a proper factor to consider if it is the sole proximate cause of injuries.
A review of the record in this case discloses that this was not the theory of the defense and that the trial court was not given the opportunity to embrace or reject this theory. This Court has long taken the position that if the trial court has not had the opportunity to rule on an issue, we will not reverse on the non-presented issue. See Knudson v. Hess, 1996 SD 137, ¶11, 556 N.W.2d 73, 76. It is unfortunate that the trial court stated that the employer‘s negligence was “fair game” for argument without instructing on the law, but on this record, the case must be affirmed on this issue.
[¶22.] 4. Whether the trial court should have allowed the admission of evidence regarding a previous fall at Casa del Rey.
[¶23.] Prior to trial, Casa del Rey made a motion in limine to prevent some of Parker‘s witnesses from testifying. One of those witnesses was James Tiltrum, a deliveryman for a beer distributor who had previously made deliveries to Casa del Rey. In September of 1995, Tiltrum fell as he was ascending the steps attached to the unloading dock where Parker had fallen. Tiltrum‘s fall occurred as he was pulling a full keg of beer, which weighed about 163 pounds, up the steps.
[¶24.] Casa del Rey attempted to keep Tiltrum‘s testimony out, arguing that the testimony of Tiltrum‘s fall did not happen in the same place or manner as Parker‘s. The motion was denied and subsequently, at trial, Manager Krebsbach testified that he did not know of any prior falls on the dock. In response, Parker presented Tiltrum‘s testimony regarding his fall on the steps.
[¶25.] This Court held in Durham v. Ciba-Geigy Corporation, 315 N.W.2d 696, 699 (S.D. 1982) that facts can be
[¶26.] Tiltrum fell just a few months prior to Parker‘s fall. Additionally, it was in the same general location, and he, too, contends that the grease was a contributing factor in his fall. Although there was no snow on the ground and Tiltrum fell while pulling a keg up the steps, rather than while unloading on the dock, the jury was fully apprised of those distinguishing factors. The facts indicate that Tiltrum‘s fall could be viewed as “substantially similar to the one giving rise to the case in issue.” See Novak v. Navistar Int‘l Transp. Corp., 46 F.3d 844, 851 (8th Cir.1995) (holding that dissimilar prior incidents are inadmissible to prove the facts of the case). The trial court has broad discretion in determining whether evidence is “immaterial, conjectural or remote” in nature, and we will fully recognize that discretion here. See Durham, 315 N.W.2d at 699. We find no abuse of discretion here and affirm the trial court on this evidentiary issue.
[¶27.] We need not address issues 5 and 6, as they “lack sufficient merit or importance to warrant individual attention.” Mattson v. Rachetto, 1999 SD 51, ¶7 n. 4, 591 N.W.2d 814 n. 4.
[¶28.] Therefore, we affirm.
[¶29.] GILBERTSON, Chief Justice, and KONENKAMP, Justice, and GORS, Acting Justice, concur.
[¶30.] SABERS, Justice, concurs in part and concurs in result in part.
SABERS, Justice (concurring in part & concurring in result in part).
[¶31.] I concur in Issues 1 through 4 and concur in result on Issues 5 and 6 as I would address them.
ROBERT A. AMUNDSON
JUSTICE
Notes
A legal cause is a cause that produces a result in a natural and probable sequence, and without which the result would not have occurred.
A legal cause does not need to be the only cause of a result. A legal cause may act in combination with other causes to produce a result.
The trial court‘s instructions regarding premises liability included the following:[Trial Court Instruction Number 18] The possessor of land owes an invitee the duty of exercising reasonable or ordinary care for the invitee‘s safety.
[Trial Court Instruction Number 20] In general, an owner of land is not liable to an invitee for physical harm caused to them by an activity or condition on the land whose danger is known or obvious to the invitee. However, if the owner of land has reason to believe that the condition will harm the invitee despite its obviousness, the owner has a duty to warn the invitee regarding the condition or to take other reasonable steps to protect the invitee.
The word “known” means that the invitee both knew of the existence of the dangerous condition, and also appreciated the probability and gravity of the danger posed by the condition. The word “obvious” means that the condition and the risk would be recognized by a reasonable person in the invitee‘s position, regardless whether the invitee subjectively recognized the danger.
The issues to be determined by you in this case are these: First, was the defendant negligent?
If you find the defendant was not negligent, you will return a verdict for the defendant.
If you find the defendant was negligent, you have a second issue to determine, namely: Was that negligence a legal cause of any injury to the plaintiff?
If you find defendant‘s negligence was not a legal cause of plaintiff‘s injury, plaintiff is not entitled to recover and you will return a verdict for the defendant.
If you find defendant‘s negligence was a legal cause of plaintiff‘s injury, you then must find on a third issue: Was the plaintiff also negligent?
If you find that the plaintiff was not negligent, you then must fix the amount of plaintiff‘s damages and return a verdict for the plaintiff.
If you find that the plaintiff was also negligent, you then must determine a fourth issue, namely: Was that negligence a legal cause of the plaintiff‘s injury?
If you find that it was not a legal cause of plaintiff‘s injury, you then must fix the amount of plaintiff‘s damages and return a verdict for the plaintiff.
If you find that plaintiff‘s negligence did contribute as a legal cause of plaintiff‘s injury, the plaintiff may still recover if the jury should find that such contributory negligence of the plaintiff was slight in comparison with the negligence of the defendant.
If you find that the plaintiff is contributorily negligent, but that such plaintiff‘s negligence is under the circumstances slight in comparison with defendant‘s negligence, the plaintiff is still entitled to recover, but the damages to be awarded plaintiff must be reduced in proportion to the amount of plaintiff‘s contributory negligence. If you find that such contributory negligence of the plaintiff is more than slight in comparison with the negligence of the defendant, the plaintiff cannot recover.
As indicated in this instruction, you should first determine the question of liability before you undertake to fix an amount that would compensate for damage, if any, found to have been suffered.
If a person assumes the risk of injury or damage, the person is not entitled to any recovery. To support an assumption of the risk defense, the defendant must show:
- 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.
South Dakota Pattern Jury Instruction 13-01. The elements listed are the same as those cited in numerous South Dakota cases. See Myers, 307 N.W.2d at 864; Mack, 548 N.W.2d at 814; Nelson, 513 N.W.2d at 904.
In giving instruction number 24, Casa del Rey was allowed to argue to the jury that assumption of the risk foreclosed Parker‘s entitlement to recovery.