*1
Daniel Plaintiff and PARROTT,
Sherman V. Defendant Appellant.
No. 19136.
Supreme Court of South Dakota.
Submitted Briefs Nov. Aug.
Decided
FACTS AND PROCEDURAL HISTORY Plaintiff, Shippen (Shippen), Daniel an adult survivor of childhood sexual abuse inflicted The trial court found Parrott. post-traumatic Shippen suffers from stress disorder as a result that abuse. The childhood sexual abuse commenced Shippen was eleven. when It contin Shippen twenty. until ued 1984 when was sexually Shippen Parrott assaulted Shippen two occasions in 1987 when was twenty-three. Parrott, Shippen v. (S.D.1993) I), (Shippen N.W.2d 82 Parrott’s course of conduct was summarized as follows: During infancy, parents Shippen’s di- five, By age vorced. mother his had re- banker, approximately married a who died year one later. Parrott,
Enter man who had worked at Shippen’s stepfather. the bank with Par- developed rott Shippen’s and mother a re- for a lationship which lasted considerable length eventually and of time became sexu- spread quickly al. Parrott’s interest siblings. and his Mother further brother, encouraged Shippen and his twin David, Parrott, believing to associate with healthy him provide male adult role boys. model for the Parrott resided in the basement of the mother, house his he shared with an elder- ly woman was bedridden and hard of hearing. living quarters His basement in- oven, table, pool pizza cluded popcorn popper, and clown collection waterbed. old, years eleven when began spending night he at Parrott’s home, request. Young Ship- at Parrott’s waterbed, pen, intrigued asked sleep in it. This necessitated that he and Norman, Robert Van Charles J. Mick- W. Parrott, years senior, nearly sleep el, Rapid City, plaintiff for appellee. together. sleepover, On one such Parrott Shippen’s penis. fondled As these visits Poehes, Jr., Lee, Poches Fort Charles continued, the sexual conduct escalated to Pierre, appellant. for defendant and performing upon oral sex him. did, however, successfully resist ZINTER, Judge. Circuit attempts at Parrott’s anal intercourse. Similar sexual encounters occurred when (Par- Defendant, Sherman Parrott stayed overnight twin Par- with rott), appeals appor from the trial court’s rott. tionment of between actionable part, As relationship
non-actionable events. We affirm
Parrott continued his
with
mother,
boys,
part
provided
and remand.
reverse
court,
boys
money,
gifts,
$75,-
with
clothes and
includ-
judgment
received a
ing securing
repossessed
of a
the return
compensatory damages
$113,-
846.88 in
replenishing
checking
their
ac-
car and
damages.
000.00
counts when the balance was low. At one were based on two causes of action: sexual
*3
car,
gave Shippen
point, he
with Parrott
battery,
assault and
and intentional infliction
remaining on the title as lienholder.
of emotional
damages
distress. The
were
Conversely, Shippen’s high school aca-
for Parrott’s
through
awarded
acts from 1975
performance
sub-par.
ag-
demic
was
His
the two
in
assaults
gressive
only
fights,
behavior not
led to
appealed
judgment
Parrott
that
con
16,
age
but on one occasion at
he took a
tending that two statutes of limitation barred
pistol
loaded
to Parrott’s home with the
I,
Shippen
the suit.
In
we considered that
killing
Shippen
intent of
him.
no
light
defense in
of the time and nature of
monogamous, engaging
means
in sexual
each act.
Shippen
We held that
could not
relationships
awith male classmate and his
avoid the statute of limitation defense under
wife, Juli, yet continuing
future
his encoun-
continuing
theory
tort
because the sexual
1984,
ters with Parrott.
In
when Juli be-
stopped
contact
in 1984 and did not resume
her,
pregnant, Shippen
came
married
any
until 1987. We also held that
“continued
part,
escape
to
Al-
Parrott’s advances.
ill effects” of the barred actions were not
though no sexual relations between the
continuing
actionable as a
tort. We conclud
during
marriage,
they
men occurred
the
ed, however, that “[the two] assaults and
frequently communicated with one anoth-
occurring
years prior
batteries
two
to [the]
Occasionally,
er.
gifts
Parrott sent
and
filing
the
Shippen
[of
were]
suit
actionable.”
money
couple.
following
to the
I, 506
occurring
claims
“[N]o
problems
Shippen’s
marital
increased
3,1986
prior
January
to
under an [intentional
gay [community]
involvement with the
theory
infliction of emotional
Minneapolis
distress]
and other homosexual rela-
—Jan
uary
tionships,
separated. They
battery
1987 for
he and Juli
assault and
—are
actionable, i.e.,
years
Despite
only
two
divorced
later.
six
those sexual contacts
group counseling
months of individual and
occurring during May and June of 1987 fall
during
separation, Shippen
his
was unable
inside the
[statute
limitations].” Id.
conflicting
to reconcile his
homosexual
original
trial
Because the
court’s
[feelings].
heterosexual
judgment
included
for Parrott’s
night May
Shippen
One
permitted
dating
non-actionable conduct
back sixteen
stay
Parrott
Shippen
to
at his home.
years
to
we reversed the
during
night
awoke
to find Parrott
award.
Id. at 87. We
the matter
remanded
fondling
genitals.
his
Parrott
at-
to
trial
court “for
reassessment of
him,
tempted
perform
to
oral sex on
but
compensatory damages for those torts suf
Shippen repulsed
attempt.
Parrott
...,
during
statutory period
partic
fered
1987],
June,
again
visited
[in
ularly
punitive
those two
in 1987 ... and
acts
home,
Upon entering
pushed
Parrott
occurring
for those causes of action
couch,
attempted
to Mss
3,1986.”
January
subsequent to
Id.
place
him
his hand inside
pants
Ship-
and tried to force oral
sex
remand,
On
there was a substantial
more,
pen.
Shippen successfully
Once
disagreement
parties concerning
between the
fought off Parrott’s advances.
right
present
new evidence and the
1986, Shippen
therapy
Since
has continued
scope
discovery.
objected
of further
arising
for mental disorders
from sexu-
to the introduction of
additional evi
al
[At
conflicts.
the time of trial he was
hand, Shippen
dence. On the other
did not
lifestyle
involved
a homosexual
in]
Colo-
respond
discovery requests
to Parrott’s
re
rado.
garding new evidence. After almost one
I,
would between medication therapy, and non-aetionable events on the tionable ser- psychiatric original record.1 trial vices the trial court found would neces- be remand, heard On trial court oral sary. concerning argument again D. $5,850 awarded for four to initially $5,850 —was —was ultimately trial damages. The court reduced awarded on remand. five years of future $49,700.00 compensatory for the anguish mental assaults. The trial court did not two 1987 suffering court found Shippen $113,000.00. award of reduce would endure. *4 again. appeals Parrott $75,846.88 $49,700.00 Total: following The trial court took the Damages Punitive Ship- respect to of action with each element pen’s damages: claimed again E. $113,000 awarded. $113,000 initially —was —was remand, The awarded puni- damages tive were cal- culated as 35 percent Original Apportioned Award Award Parrott’s of net worth after of com- payment damages. pensatory These A $7,476.88 $1,130 initial- awarded —was —was dam- punitive for awarded on remand. trial ly Ship- ages originally were court medical, this pen’s past psychological, apportioned to awarded Parrott “punish” amount to the 1987 as- hospital for his con- counseling saults because $1,130 ex- duct over the past of the for $7,476.88 was “that which penses. years adult knows every should child sexual molesta- incurred after not be done— 1987assaults. tion” and to deter oth- B. $28,800 $9,000 awarded initially —was —was added). ers. awarded for on remand. The men- past anguish, tal suf- court arrived at $9,000 pain, Thus, apportioned pre-trial the trial court fering awarding a distress. by from day $5 damages expenses for medical mental The trial court and June award- of May (Both However, anguish. ed a or $1,800 “1986.” the trial court declined day parties $5 agree for 16 a- that year years year apportion damages to for future medical typograph- from 1975. is a “1986” expenses anguish. and mental The trial ical error because the assaults occurred in to apportion court declined the future dam- 1987. Consequently, ages because it found that the two 1987 concedes that “aggravated” preexisting assaults a mental this award should be further reduced by logically and “[it be] condition would difficult damages one year’s impossible” apportion Ship- if not to between ($1,800) $7,200). pen’s preexisting condition and the future again C. $33,720 $33,720 initially —was —was damages arising aggrava- out of the two 1987 awarded for four awarded on remand. ting finally acts.2 The trial court declined to five future years party appealed damages 1. has Ship- Neither the trial court's caused which some of the which apportion damages decision to without new pen evi- sustain wiE in the future. The trial court Furthermore, party appealed dence. any neither has found further that Parrot knew or should have discovery issue. known of vulnerable mental condition "aggravated the two and that tortious assaults Although Shippen's the trial court found that preexisting condition or mental aüment." Al- "dysfunctional mostly condition resulted because though damages the trial court noted that for the being sexually during abused his childhood” pre-existing were barred condition statute prior and that the a cause of abuse is also limitations, it concluded that Parrot take must damages, it future found that the two 1987 as- Consequently, "as finds him.” saults were the two nearest cause "latest or trial court found two 1987 that the assaults "con- damages....” court future The trial cause, i.e., abuse, prior with the curred other period” found that was ain "vulnerable therewith, acting conjunction caused the fu- “starting that he was out of to break damages ture wiE incur.” Plaintiff Because the problems therapy, along [Par- came and then apportioning monetary trial court found May that and June rott] in and assaulted] preexisting [Shippen] again.” The found between the condition and trial court aggravating "logically acts these two tortious were an immediate cause the two assaults was diffl- damage preexisting injury or preexisting award because made the reduce ..., repulsive Pollman, attitude [h]is- Parrott’s “intent condition “more difficult to treat.” ..., deplorable his financial behavior at 476. N.W.2d We have also found condition,” “not because “aggravations” subsequent where the act bit remorseful ... because Par- [and least “superimposes” imposes [injury] or “adds or punished and others de- rott] should be integrating.” without at Id. terred.” aggravation damages While are OF APPORTIONMENT DAMAGES recoverable, generally there is a limitation. AND BETWEEN ACTIONABLE Damages “any previous are not awarded NON-ACTIONABLE EVENTS subsequent injuries or ailments unrelated reassessing compensatory dam Stoltz, to the [actionable event].” ages, applied the trial court first recogni limitation 658. This is a generally applicable aggravation rule apportionment tion of the rule that applied cases. The trial court then a related arising out of actionable and non-actionable pre-trial rule of dam apportioned possible. if events should be ages, applied non-apportionment but it ex ception damages. to the future *5 adopted we have While these damage generally The rule rules, aggravation apportionment we applicable aggravation cases makes a de previously non-ap have not considered the aggravation responsible fendant for the of portionment exception by applied the trial any preexisting or ailment. An condition do, however, recog court. Most other states injured party is entitled to an award an non-apportionment exception a nize that ex reasonably compensate amount which will condition, preexisting ists when there is a damages party that for all suffered as a aggravates when an actionable event the injury, including aggravation result of the the preexisting apportion condition and when no any preexisting of condition. Stoltz v. Stone disability ment of can the be made between 654, (S.D.1983); cypher, 336 N.W.2d 657-58 preexisting that caused the condition and Hanson, 316,
Bertness v. 292 319 N.W.2d that caused the actionable event. In such Ahrens, (S.D.1980); 249, Pollman v. 88 S.D. cases, though portion present even a of the (1974). 475, However, 476-77 218 N.W.2d disability directly and future is attributable cases, plaintiff such has the burden of condition, preexisting to the the defendant proving subsequent act caused or negligence Bertness, whose act of was the cause of the aggravated injury. 292 subsequent responsible requires act is for the entire N.W.2d at 319. This evidence that worsening damage.3 subsequent act had a effect on impossible,” injuries due cult if not apportionment exception it concluded that the non- diseased condition suffers to defen negligence damages discussed later in this dant's between the dis opinion applied should be and that Parrot was negligence eased condition and the defendant’s damages previously liable for all future awarded. apportioned, cannot be the defendant is liable for damage); Byers, the entire Blaine v. 91 Idaho Dix, 562, 913, 3. See Owenv. 210 Ark. 196 S.W.2d 665, 397, (1967) (worsening 429 P.2d 405-06 of (1946) (when negligence aggra 915 defendant's plaintiff's preexisting due to arthritic condition condition, vates a dormant or diseased defendant negligent defendant’s act is attributable to defen damages, notwithstanding is liable for entire apportionment preexist dant when between the condition); Newbury dormant or diseased v. Vo ing condition and the worsened arthritic arthritic 520, 811, (1963) gel, 151 Colo. 379 P.2d 813 made); Bushong v. Kamiah condition cannot be Grain, Inc., (when preexisting aggravated a condition is 659, 1099, 96 Idaho 534 P.2d 1101 apportionment preexisting between the condition (1975) (defendant aggravates plaintiff's a made, aggravating event cannot be through negli preexisting an act condition aggravating defendant who caused the event is apportion gence is for the entire if liable responsible Stores, damage); for the entire Winn-Dixie preexisting ment between the condition and 765, (Fla.Dist. Nafe, Inc. v. 222 So.2d 766 possible); negligence defendant's is not Becker v. (when Ct.App.1969) jury apportion cannot Co., 727, Distributing 247 D & E N.W.2d 731 damages aggravating between an event and a (when (Iowa 1976) preexisting disease, condition is preexisting tortfeasor); all are assessed 629, Kaku, apportionment aggravated can be made and no Haw. Matsumoto 52 147, (1971) (when aggra plaintiff preexisting and the 484 P.2d 149 with a between the condition injuries greater personal number of exception far the non-apportionment
This normally single ... and indivisi- policy aggravation that in are thus out of the arises two or more causes combine uncertainty to causation should be ble. Where cases as result, produce single incapable victim. The non- such in favor of the resolved any logical or reasonable gives of division on exception the benefit basis, and each is a substantial party determining doubt in factor harm, bringing the courts have about the wronged. Bigley v. Cra found to have been arbitrary apportion- to make an ven, refused (Wyo.1989) (citing 769 P.2d sake, Co., ment for its own and each of the Estate 62 Mich. McNabb v. Green Real (1975)). charged responsibility for causes is with App. 233 N.W.2d
the entire harm.... not, exception does howev liability imposed Such entire is where some er, plaintiffs showing innocent_ remove a burden It im- of the causes are is was a negligence that the of the defendant posed either cause would have been where causing harm. factor in Re substantial bring in itself to about the re- sufficient (Second) (a) Torts, § cmt 433B statement if sult. ... such the Defendant [In cases] (1965). Bigley, supra; Restatement See all, liable at is liable for [the Defendant] (i). (Second) Torts, § cmt have 433A We the entire indivisible harm.... recently factor re reaffirmed the substantial (i) Torts, 433A, § cmt Restatement Second of alleg quirement more than one cause when added). at 439-440 injury. edly an Therkildsen v. contributes to Although not take Parrott does is ¶ Beverage, Fisher 1996 SD rules, with contends that sue these (1996). 834, 837 evidence does not warrant award of apportionment rule Both the damages for the 1987 assaults. *6 application requirement for substantial factor points findings out of fact from that the non-apportionment exception spe are of the (which original incorporated trial into were (Sec cifically recognized in the Restatement damage trial reassessment court’s deci ond) provides: of Torts. Section 433A sion) Shippen’s state that arose out any “childhood sexual abuse” without (1) Damages appor- harm to be for are reference to the 1987 assaults. Parrott also among or more causes where tioned two argues appor that there is no trial evidence (a) harms, are or there distinct tioning damages indicating or the 1987 as (b) a for deter- causing there is reasonable basis a factor in saults were substantial Therefore,
mining any damages. of each cause non-apportionable the contribution single argues any damage to a harm. that for supported by 1987 assaults is not (2) Damages harm for other cannot be original findings evidence or the trial court’s apportioned among more causes. two or of fact. (i) explains 2 Comment to subsection exception, including factor re- the substantial ANALYSIS quirement: Compensatory Damages harm, by very their na-
Certain kinds ture, any logical, Unfortunately, party neither normally incapable are reasonable, By practical provided division.... the trial court with vation, condition, negligence ing negli the defendant whose act of the tortfeasor whose act of responsible aggravation responsible gence caused the for the caused the trauma is for all is Craven, damages); Bigley though portion pres v. 769 P.2d entire even a of the 1989) (when disability (Wyo. preexisting a condition is ent and future is attributable to the condition); by subsequent ap preexisting City aggravated and no Berk a trauma Rickman by preex portionment injury ley, Mich.App. between caused 269 N.W.2d (1978) (when isting injury by aggravates preexisting caused the subse trauma a condition made, condition, though portion present quent the tortfeasor of the even of the trauma can be damage). disability directly preexist responsible the entire trauma is for attributable to Therefore, ing must condition or were a substantial factor in we on remand. evidence damages. expert evidentiary- causing Shippen’s Each is an whether there determine merely Shippen’s problems described mental original record for the trial in the basis and related his to the childhood Shippen’s pre-trial apportionment of court’s sexual abuse. application of damages and the trial court’s fu non-apportionment exception to his Roberts, example, Joseph psy For original damages. review of the ture Our worker, expert chiatric as an social testified an evidentia- trial record reveals that there is “sexual child adult survivors of abuse” ry apportioned pre-trial dam for the basis post-traumatic disorder. de stress Roberts not, however, support ages. The record does post-traumatic scribed disorder as a stress excep non-apportionment application of the gone through category people for who have damages. The ex Shippen’s tion for future However, trauma “earlier in their life.” is no ception apply does not because there testimony all related to adult survivors of necessary predicate that the evidence “child He did not indicate that sex abuse.” aggravated preexisting condi 1987 assaults aggravated Shipperis the 1987 assaults con bringing factor in tion and were a substantial Ship- dition or were a substantial factor in harm. about future fact, peris damages. specifically Roberts stated that he had not determined the chro outset, that At the it should be noted nological post-traumatic in which the time original Finding of Fact the trial court stress disorder arose. specifically found that “the childhood sexual very large contributing factor or abuse is a Shipperis Dr. Arbes’ discussion of controlling [Shippen’s] present factor problems Shipperis was also limited to child fact,
problem.” In
the trial court found that
Ship-
hood abuse. Dr. Arbes testified that
dysfunctional
many
“[Shippen] will be
by
peris problems
caused
sexual abuse
were
years
caused
or stems
and that
this is
age
eleven and continued
which started
as
as
from the childhood sexual abuse
well
through
young adulthood.
adolescence and
added).
other childhood traumas.”
However, Dr. Arbes did not refer to the 1987
original
In its
Conclusion of Law the
assaults. Dr. Arbes’ ultimate conclusion was
a result of the
“[a]s
court concluded
“con
that the childhood sexual abuse was the
continuing
[Parrott]
sexual molestation
*7
fact,
questioned by
trolling factor.” In
when
minority,
ill
during [Shippen’s]
the mental
matter,
trial court
the
Dr. Arbes
about
repression
sup
ness which evolved into
specifically
the “events” that
testified
pression,
(emphasis
came into existence.”
place “not a
they
talking
were
about took
added.)
are, however,
original
There
no
trial
decade,
long
ago.”
but a
time
ag
findings reflecting that the 1987 assaults
agreed
diagnosis
Dr.
that the
Lord
gravated the mental illness or were a sub
post-traumatic stress disorder was “the
damages.
Shippen’s
future
stantial factor
abuse, various kinds.”
result of childhood
There is also no evidence from the
added.)
asked to describe
When
Al
original
findings.
such
trial to establish
Shipperis problems, Dr. Lord
the source of
though Shippen argues that the trial court’s
Shipperis
“stem di
testified that
difficulties
supported by
non-apportionment findings are
rectly
and that includes
from his childhood
expert testimony,
Shippen’s psy
neither
sexual,
abuse we talked about
emotional
chiatrist,
Lord; Shippen’s psy
Dr. Charles
early
development
as his
childhood
as well
Arbes; Shippen’s psy
chologist, Dr. William
Shipperis
Dr. Lord described
and conflicts.”
worker, Joseph
nor
chiatric social
Roberts
being
“having
with
symptoms as
consistent
Dr. Daniel
psychiatrist,
Parrott’s
forensic
youth.” Although
sexually
as a
been
abused
if
Kennelly were even asked
element
a
Kennelly
Dr.
could not come to
definitive
Shippen’s damages
diagnosis,
was related to the 1987
also not asked
psychiatric
any Consequently,
expert
no
testified
1987 assaults caused
assaults.
whether
Shipperis damages.
aggravated
preexist
that the 1987 assaults
summary,
expert
Dakota and
Minne
no
related the Eastern South
Western
damages.
Shippen’s
Shippen
Fur
1987 assaults to
sota.
testified that
1988 he was
thermore,
attacks,
expert
that the 1987
experiencing “panic
sleepless
no
testified
still
preexist
worsening
ness,
effect on a
assaults had
being
agitated”
scared ...
for
[and]
ing mental condition or that the 1987 assaults
sought counseling at a
which he
mental
Shippen’s preexisting condition more
made
health center.
Therefore,
expert
difficult to treat.
testi
testimony concerning
This
mental
mony
support
trial court’s
does not
find
anguish
following
and medical treatment
ings
aggra
on remand that the 1987 assaults
assaults,
favorably
when viewed most
to
Shippen’s mental condition or were a
vated
support
judgment,
supports the trial
causing Shippen’s
factor in
dam
substantial
apportioned
post-assault
court’s
ages.
($1,130)
counseling expenses
and post-assault
Shippen
only
was the
witness
($7,200).
anguish, pain
suffering
mental
and
provided any
apportionment
evidence
However,
experts, Shippen
like the
did not
damages.
testimony
support
That
does
testify
aggravated
that the 1987 assaults
Shippen’s pre
trial court’s
mental condition and were a substantial fac
anguish damages.
medical
mental
only
causing
damages.
tor in
his future
not, however, support
It does
the trial court’s
Shippen’s
evidence in the record relates
fu
findings concerning
aggravation
anguish
ture mental
and need for future
damages.
future
medical
treatment
the non-actionable
Consequently, Shippen’s
childhood abuse.
Shippen
May
testified that the
testimony
support
not
does
the award for
Shippen
Par-
1987 assault occurred after
($33,720)
expenses
future medical
and future
gone
together
rott
out to
had
had
dinner
($5,850).
anguish
mental
Shippen’s apartment. Shippen
returned
Damages
Punitive
in,
testified that after Parrott invited himself
anxious,
“they
was nervous and
but
reaffirming
original pu
peacefully.”
went
bed
When
award,
nitive
the trial court utilized
morning
per
awoke
to find Parrott
the five criteria we
in Flockhart
enumerated
sex,
forming
oral
said “no” and
(S.D. 1991)
Wyant,
away.
voluntarily
pushed Parrott
Parrott
(S.D.1984).4
Brooks,
Ruple v.
With damages, determining punitive the amount of testified that the June assault involved some compensatory because the amount of dam force left red marks on which significantly by chest, ages has been reduced this stomach and wrist. He also testified $113,000 because is the exact “totally Court and that he felt “terrible” and dis originally amount awarded for “child” sexual traught” as a result both He of incidents. molestation, punitive damage the award must gave up apartment, testified that he “hit began staying parks the road” and in in be reconsidered. (5) (1) the attendant to the Those factors are: the amount allowed as all of circumstances (2) wrongdoer's Wyant, compensatory damages; the nature and enor- action. See Flockhart v. 467 473, Brooks, (3) (S.D.1991); mity doer; wrong; wrong- Ruple of the the intent of the N.W.2d 479 v. (4) condition; 652, (S.D.1984). wrongdoer’s 656 the financial 352 N.W.2d
511 MILLER, GILBERTSON, punitive damage award is C.J. A J., concur. by Hannahs subject this Court. to revision 678, Noah, N.W.2d 684 83 S.D. 158
v. AMUNDSON, J., partm concurs (1968); Hillgren, 78 S.D. 98 Stene part. in and dissents (1959).5 now We have N.W.2d 159-60 SABERS, J., dissents. punitive dam record and the considered this occasions. After consider age award on two ZINTER, Judge, for Circuit factors, we conclude that the ing all relevant KONENKAMP, J., disqualified. damage should be reduced to punitive award AMUNDSON, $25,000 (concurring $25,000. part in Justice in allowing A remittitur dissenting part). in damages is ordered.6 punitive majority’s analysis I concur with the thirty days date of from the Within however, damages; I compensatory of the opinion, Shippen shall file this Court this damage punitive not remit the award. would reject judgment accept written election v. Edward D. Jones & Schaffer $33,330 ($25,000 $1,130 + + sum of the Co., (S.D.1994) (Schaffer 927 $7,200) at the together with interest thereon I), this court held: judgment legal from the date of of the rate determining punitive the amount of If that and costs in that court. trial court deciding they damages, as well as whether judgment of the judgment accepted, is the all, can given should be at the trier fact of court, of as modified the election merely properly consider not the act itself and no costs will be Shippen, will be affirmed including the mo- but all circumstances Court, not in this If does so taxed wrong-doer, the relations [and] tives the of elect, judgment be reversed with shall added.) (Quo- parties. (Emphasis of appellant and new appeal on costs omitted.) tations and citations damages ordered. punitive trial on Further, United recent States part part, Affirmed in reversed Supreme decision in BMW North Court of Gore, -, America, Inc. v. U.S. and remanded. judge award. Our conclusion is that the trial basis for its first It should also be noted language supported by the dissent. The originally heard the evidence has since retired specifically to reconsider based from the bench and is unavailable dissents' stipulation just punitive damage upon picture the isolat award. Without "the total rather than authority parties, judge serve[ ] a successor has no as the basis incidents] ed which ¶ award,” upon compensatory a decision in a case where he or she 38 and to render infra testimony. advantage Ship- taking Hinman v. Hin has not heard conduct in "Parrott's man, (S.D.1989). time," Finally, pen 443 N.W.2d a course and his twin brother over present added). ¶ parties right Basing punitive waived the new both at 39 infra damages Therefore, apportionment. we deem advantage evidence on "taking over a portion judg appropriate of the picture” it to revise this upon the "total course of time" ment. which is the basis of rather than the conduct effectively dam event awards actionable ages effects we found non-actionable for the ill puni decline to remit the same 6. Both dissents agree can we do that the Court I. While award that was made the trial tive including properly all circumstances consider following original appor trial and the court wrongdoer the relations of motives of the hearing. decline to remit tionment The dissents Co., parties, v. Edward D. Jones & although specifically we held that "continu Schaffer *9 nevertheless, 921, (S.D.1994), 927 521 N.W.2d ing are not ill effects" of the barred actions "pun I, damages may imposed not be to compensable. Shippen at We 506 N.W.2d conduct. to "deter” non-actionable respectfully ish” or that the failure to reduce conclude -, -, Gore, U.S. 116 S.Ct. BMW v. 517 punitive damages originally awarded for the 1589, 1598, 809, (1996). Fur imper- 134 L.Ed.2d 825 child sexual abuse would non-actionable thermore, basing damages con on Parrott’s missibly Shippen damages award for the "con Shippen's brother awards duct towards actions. Our tinued ill effects” of the barred person against Shippen a third supported by to for acts that the trial is the fact conclusion claim in this case. only as the has made no court referred to child sexual abuse 512 (1996) 1589, 678, (1968); (holding Hillgren,
S.Ct.
When the
We should
relevant
proceed
sought
factors
under Hannahs
pleadings properly
is
and the
dis-
punitive damage
Stene
revise
award to
justify
close circumstances
al-
which
an
adequate,
an amount this court determines
damages, any
lowance of such
matters of
tying punitive damages
compensa
without
having
tendency
evidence
reasonable
reduced,
tory damages, as
or to the amount
establish the existence or nonexistence of
by
set
court.
warranting
a fact or circumstance
the al-
damages may
lowance of such
be intro-
view,
my
majori
In
the defect in the
Thus,
duced.
evidence of
fact which
ty opinion
punitive damages
is that
legitimately tends to show the motive and
appears
portion
percent
to be some
doing
intent of the defendant in
the act
by
of the amount set
the trial court and is
complained of is admissible[.]
totally inadequate. We should set
adequate
amount we determine as
without
(2dEd 1988).
§
22 AmJur2d
925 at 951-52
regard
by
to the amount set
the trial court.
in taking
Parrott’s conduct
advan Hannahs,
306-07,
quately punished and Under circumstances, I set the would amount $113,000. Anything less is minimum of deterrence,
inadequate punishment ¶94, 25,
Schaffer, 801. 1996 SD SD 116 SERVICE,
CENTRAL MONITORING
INC., Appellee, Plaintiff ZAKINSKI,
Stanley Defendant Appellant. 19371.
No.
Supreme Court South Dakota.
Argued March Sept.
Decided