Mitchell Alan VILHAUER, Plaintiff and Appellee, v. HORSEMENS’ SPORTS, INC., Defendant and Appellant, and Corn Palace Stampede, Inc., Ray Henderson, Sutton Rodeos, Inc., and Mark Barnett, South Dakota Attorney General, Defendants.
No. 20395.
Supreme Court of South Dakota.
Decided July 21, 1999.
1999 SD 93. Argued Jan. 14, 1999. Reassigned May 19, 1999.
[¶ 15.] Reversed and remanded for trial.
[¶ 16.] SABERS, KONENKAMP and GILBERTSON, Justices, and LOVRIEN, Circuit Judge, concur.
[¶ 17.] LOVRIEN, Circuit Judge, sitting for MILLER, Chief Justice, disqualified.
James L. Hoy of Hoy and Hoy, Sioux Falls, South Dakota, for defendant and appellant.
GILBERTSON, Justice (on reassignment).
[¶ 1.] Mitchell Vilhauer (Vilhauer) was injured after being struck in the face by a gate while working at the Corn Palace Stampede. Vilhauer brought suit against defendants Horsemens’ Sports, Inc. (Horsemens’ Sports), Corn Palace Stampede, Inc. (Stampede), Ray Henderson (Henderson), Sutton Rodeos, Inc. (Sutton), and Mark Barnett, South Dakota Attorney General, alleging numerous counts of negligence. Defendants asserted the defense of immunity provided by
FACTS AND PROCEDURE
[¶ 2.] Horsemens’ Sports owns the land in Mitchell, South Dakota where the Corn Palace Stampede is held. Stampede sponsors this annual rodeo and Sutton provides the stock. Henderson designed the gate. In his spare time, Vilhauer worked as a laborer at rodeos. He had worked at approximately eighty rodeos prior to this incident.
[¶ 3.] On July 16, 1994, Vilhauer was assigned to work the saddle bronc event at the Corn Palace Stampede. Following each individual saddle bronc event, the horse is led out of the main arena and into a catch pen. At the time of the incident, Henderson was operating the gate of the catch pen. After the horse is allowed into the catch pen, the horse enters a stripping chute where the saddle and halter are removed. Two sliding gates control this stripping chute, one toward the catch pen and the other away from the arena. Vilhauer‘s duty was to open and close the small gate leading into the stripping chute.
[¶ 4.] While other workers were removing the saddle and halter from the horse in the stripping chute, Vilhauer walked over toward the closed gate to see when the next horse was approaching. This gate was not normally opened or closed during the saddle bronc event and was used to form one of the fences making up the catch pen leading into the stripping chute.
[¶ 5.] When the next saddle bronc left the main arena and entered the catch pen, it ran into the gate. The gate popped open, striking Vilhauer in the face and causing personal injuries. Vilhauer does not know why the gate popped open.
[¶ 6.] Vilhauer filed suit on December 20, 1995, against the defendants, alleging a number of negligence counts. In addition, Vilhauer asked the court to declare
Did the circuit court err by declaring
SDCL 42-11-1(6)(e) unconstitutional.
STANDARD OF REVIEW
[¶ 7.] Our review of the constitutionality of a statute is de novo. Green v. Siegel, Barnett & Schutz, 1996 SD 146, ¶ 7, 557 N.W.2d 396, 398 (citing Kyllo v. Panzer, 535 N.W.2d 896, 897 (S.D.1995)).
ANALYSIS AND DECISION
[¶ 8.] Did the circuit court err in declaring
[¶ 9.]
[¶ 10.]
[¶ 11.] However, in analyzing the constitutionality of statutes partially limiting liability we have consistently held:
Where the constitutional validity of a statute depends upon the existence of facts, courts must be cautious about reaching a conclusion respecting them contrary to that reached by the legislature; and if the question of what the facts establish be fairly debatable one, it is not permissible for the judge to set up his opinion in respect of it against the opinion of the lawmaker. Radice v. New York, 264 U.S. 292, 294, 44 S.Ct. 325, 326, 68 L.Ed. 690, 694 (1924).
Wegleitner v. Sattler, 1998 SD 88, ¶ 30, 582 N.W.2d 688, 697 (quoting Knowles, 1996 SD 10 at ¶ 67, 544 N.W.2d at 197).
[¶ 12.] The errors committed by the trial court in arriving at its conclusion are twofold. First, it failed to construe the entire chapter of
[¶ 13.] Horsemens’ Sports provided the rodeo grounds and thus qualified as an “equine activity sponsor” under
The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within the participant‘s ability.
[¶ 14.] The trial court erroneously concluded
- Providing faulty equipment or tack;
- Failing to properly ascertain the participant‘s ability and/or provide an inappropriate animal;
- Providing land or facilities with a known, dangerous latent condition without conspicuous warnings;
- Committing acts in a willful or wanton disregard for the safety of the participant, and;
- Intentionally injuring the participant.
[¶ 15.] Based on the allegations in Vilhauer‘s complaint, he does not become nonsuited should
[¶ 16.] Thus, the Legislature has not placed a blanket immunity in favor of those who operate rodeos. It has rather placed a heightened burden of proof2 for certain types of claims or excluded the partial immunity protection altogether for specific causes of injury. The actual issue before this Court is whether the Legislature may constitutionally take such action within the parameters of Article VI, Section 20.
There is a strong presumption that the laws enacted by the legislature are constitutional and the presumption is rebutted only when it clearly, palpably and plainly appears that the statute violates a provision of the constitution. Further, the party challenging the constitutionality of a statute bears the burden of proving beyond a reasonable doubt that the statute violates a state or federal constitutional provision.
Green, 1996 SD 146 at ¶ 7, 557 N.W.2d at 398 (quoting State v. Hauge, 1996 SD 48, ¶ 4, 547 N.W.2d 173, 175 (other citations omitted)). Any reasonable and legitimate construction of a statute that does not violate constitutional principles must be adopted. Harding County v. South Dakota State Land Users Ass‘n, 486 N.W.2d 263, 265 (S.D.1992).
[¶ 17.] The trial court relied on Daugaard v. Baltic Co-op. Bldg. Supply Ass‘n, 349 N.W.2d 419 (S.D.1984) as the basis for its analysis. However, subsequent histori-
Given the above nature of the understanding of the drafters of the constitutional provisions and its contemporary judicial interpretations, it is clear that these provisions in South Dakota and surrounding states were meant to allow unhindered access to the courthouse by a person who had a valid cause of action based on existing statute or the common law, timely and properly brought, who then would be allowed to present their case to a human fact finder. In other words under those conditions, a litigant was guaranteed its day in court.... In Green, we analyzed our case law from McClain in 1897 up to Knowles in 1996 and found no basis for a claim that Art. VI, § 20 could by itself become a sword to create a cause of action or become a shield to prohibit statutorily recognized barriers to recovery such as a statute of limitations.
Wegleitner, 1998 SD 88 at ¶ 33, 582 N.W.2d at 698.4
[¶ 18.] Such a constitutional theory, as was adopted by the trial court, cannot be supported under proper analysis. Throughout the legal history of this jurisdiction damages have been authorized in certain instances for wanton and willful acts but not so authorized for negligent acts.
[¶ 19.] In 1877 the Dakota Territorial Legislature passed what is now
[¶ 20.] The constitutional question now before us was previously answered by this Court in Behrns v. Burke, 89 S.D. 96, 229 N.W.2d 86 (1975). Until 1978 the Legislature had in force a “guest statute” for motor vehicle passengers.
[¶ 21.] In Knowles, a cap on medical malpractice damages was challenged in part on the grounds it violated Article VI, Section 20. In rejecting this challenge we held the “‘Constitution does not forbid the creation of new rights, or the abolition of old ones recognized by the common law, to attain a permissible legislative object.’ ... Malpractice plaintiffs are entitled to a remedy ‘by due course of law.’ That is all the open courts clause guarantees.”
Knowles, 1996 SD 10 at ¶ 84, 544 N.W.2d at 203 (citations omitted).7 If we upheld a cap in Knowles on the amount of damages recoverable for negligent acts from an Article VI, Section 20 challenge, Vilhauer fails to articulate what constitutional rationale would strike down a recovery for damages under a heightened burden of proof of wanton and willful with no monetary cap on damages. As in Knowles, this section is also a partial limitation on the right to recover damages.
[¶ 22.] Vilhauer‘s reliance on Kyllo, 535 N.W.2d 896 is misplaced. In Kyllo, we held a statute unconstitutional because it placed an absolute ban on any recovery from the time of the commission of the tort. As such, it stands along with Moberg v. Scott, 38 S.D. 422, 161 N.W. 998 (1917), as an unsuccessful attempt by a tortfeasor to achieve judicial recognition of an absolute bar to any recovery at any time. Vilhauer‘s claim may be vindicated if he meets the statutory exceptions (faulty equipment) or can meet the heightened burden of proof required of wanton and willful misconduct. Our prior cases have upheld such partial restrictions. See Wegleitner, 1998 SD 88, 582 N.W.2d 688; Green, 1996 SD 146, 557 N.W.2d 396; Behrns, 89 S.D. 96, 229 N.W.2d 86.
[¶ 23.] Our neighboring state of Nebraska in Peterson v. Cisper, 231 Neb. 450, 436 N.W.2d 533 (1989) upheld a statute granting a liability exemption to co-employees against an open courts challenge. In so doing, it based its rationale on an earlier case decided in the same era as the drafting of the South Dakota Constitution.
[¶ 24.] In Meyer v. Kendig, 641 P.2d 1235 (Wyo.1982), another neighboring state upheld co-employee immunity despite the provisions of its constitution‘s open courts guarantee. In so doing, the Meyer court set forth what was meant by Wyoming‘s constitutional open courts guarantee:
The services of the district court and of this court have been utilized in this case. The fact that the courts are required to be open and to afford justice for injury done does not mean that a party is assured of success in a legal action, or that standards cannot be set for, and limitations cannot be placed upon, causes of action — all in the interest of justice. The court was open to appellee. She has availed herself of its services. The administration of justice in this case is the process in which we are now involved. [The statute] only sets a standard to be applied by the courts in an action by an employee against a co-employee for negligence resulting in a work-related injury. Such is not a violation of Art 1, § 8 of the Wyoming Constitution.
641 P.2d at 1241.
[¶ 25.] In Hirpa v. IHC Hospitals, Inc., 948 P.2d 785 (Utah 1997), the plaintiff challenged the Utah Good Samaritan law that provided good faith immunity to a doctor coming to the emergency assistance of a person needing such treatment. Rejecting an alleged violation of the open courts provision of the Utah Constitution, the court declared it would uphold the statute as it was not unreasonable or arbitrary and it furthered its statutory objectives. Id. at 792. Similarly, “[t]he ‘access right’ guarantees access to the courts only when an individual has a viable claim for relief.” Norsby v. Jensen, 916 P.2d 555, 563 (Colo.App.1995) (upholding limited immunity for correctional personnel). See also Stout v. Grand Prairie Indep. Sch. Dist., 733 S.W.2d 290 (Tex.App.-Dallas 1987) (upholding limited immunity for teachers).
[¶ 26.] In summary, there is no constitutional basis under Article VI, Section 20 for striking down
[¶ 27.] MILLER, Chief Justice, and KONENKAMP, Justice, concur.
[¶ 28.] AMUNDSON, Justice, concurs specially.
[¶ 29.] TRANDAHL, Circuit Judge, dissents.
[¶ 30.] TRANDAHL, Circuit Judge, sitting for SABERS, Justice, disqualified.
AMUNDSON, Justice (concurring specially).
[¶ 31.] I write specially to iterate that this case is not controlled by Kyllo v. Panzer, 535 N.W.2d 896 (S.D.1995). Issue one in Kyllo was: “Whether the trial courts improperly determined that
TRANDAHL, Judge (dissenting).
[¶ 32.] I respectfully dissent. Article VI, Section 20, of the South Dakota Constitution provides: “All courts shall be open, and every man for an injury done him in his property, person or reputation, shall have remedy by due course of law, and right and justice, administered without denial or delay.” Generally, courts have determined the intent behind constitutional “open courts” provisions is “to preserve the common-law right of action for injury to person or property[.]” Kyllo v. Panzer, 535 N.W.2d 896, 900 (S.D.1995) (citations omitted).
[¶ 34.] As we recently stated in Matter of Cert. of Questions of Law:
“Open courts” is not a guarantee that all injured persons will receive full compensation or that remedies once existent will always remain so. Kyllo, 535 N.W.2d at 901; cf Wright, 391 S.E.2d at 570. Nor does this provision assure that a substantive cause of action once recognized in the common law will remain immune from legislative or judicial limitation or elimination. Kyllo, 535 N.W.2d at 901; Wright, 391 S.E.2d at 570. Otherwise, the state of tort law would remain frozen in the nineteenth century, immutable and eventually, obsolete. Reasonable restrictions can be imposed upon available remedies. Kyllo, 535 N.W.2d at 901; Baatz v. Arrow Bar, 426 N.W.2d 298, 304 (S.D.1988). Our function is not to elevate common-law remedies over the Legislature‘s ability to alter those remedies, but rather, we are to interpret the laws as they affect the “life, liberty, or property of the citizens of the State.” Kyllo, 535 N.W.2d at 901. 544 N.W.2d at 203. The legislature can impose only reasonable restrictions that do not infringe on common-law actions guaranteed by the constitution. Kyllo 535 N.W.2d at 903.
[¶ 35.]
those dangers or conditions which are an integral part of equine activities, including:
(a) The propensity of the animal to behave in ways that may result in injury, harm, or death to persons on or around them;
(b) The unpredictability of the animal‘s reaction to such things as sounds, sudden movement, and unfamiliar objects, persons, or other animals;
(c) Certain hazards such as surface and subsurface conditions;
(d) Collisions with other animals or objects;
(e) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within the participant‘s ability. (emphasis added).
The trial court found
[¶ 36.] Horsemens’ asserts when
[¶ 37.] However, Horsemens’ heightened standard argument should fail because it misinterprets South Dakota‘s negligence law. While some courts consider willful and wanton conduct to be a higher degree of negligence, other courts consider willful and wanton conduct a different kind of conduct than negligence. See 57A Am-Jur2d § 257-62. South Dakota case law clearly defines willful and wanton conduct as being a distinct kind of conduct from negligence.
Willful and wanton misconduct is something more than ordinary negligence but less than deliberate or intentional conduct. Granflaten v. Rohde, 66 S.D. 335, 283 N.W. 153 (1938). Conduct is gross, willful, wanton, or reckless when a person acts or fails to act, with a conscious realization that injury is a probable, as distinguished from a possible (ordinary negligence), result of such conduct. Granflaten, 66 S.D. 335, 283 N.W. 153. Contradistinguished, intentional tortious conduct is when an ordinary, reasonable, prudent person would believe an injury was substantially certain to result from his conduct. Spivey v. Battaglia, 258 So.2d 815 (Fla. 1972). To establish intentional conduct, more than the knowledge and appreciation of risk is necessary; the known danger must cease to become only a foreseeable risk which an ordinary, reasonable, prudent person would avoid (ordinary negligence), and become a substantial certainty. Spivey, 258 So.2d 815. (emphasis added).
VerBouwens v. Hamm Wood Products, 334 N.W.2d 874, 876 (S.D.1983). See also Fenner v. Trimac Transp., Inc., 554 N.W.2d 485, 487 (S.D.1996); Harn v. Continental Lumber Co., 506 N.W.2d 91, 96 (S.D.1993); and Brazones v. Prothe, 489 N.W.2d 900, 905 (S.D.1992). “[Willful and wanton misconduct] describes conduct which transcends negligence and is different in kind and characteristics. It is conduct which partakes to some appreciable extent, though not entirely, of the nature of a deliberate and intentional wrong.” (emphasis added). Tranby v. Brodock, 348 N.W.2d 458, 461 (S.D.1984).
[¶ 38.] Prior case law clearly distinguishes willful and wanton conduct as being distinct from negligence. The legislature‘s requirement of willful and wanton conduct rather than mere negligence operates to abolish a cause of action based on negligence, not limit it.
[¶ 39.] The common law of negligence is codified at
Negligence law must have some degree of flexibility. However, it is an entirely different and unacceptable proposition to assume that the flexibility of our neg-
ligence law may act in degradation of the fundamental foundation of our state constitution. Our constitution ... is solid core upon which all our state laws must be premised. Clearly and unequivocally, our constitution directs that the courts of this state shall be open to the injured and oppressed. We are unable to view this constitutional mandate as a faint echo to be skirted or ignored. (citations omitted).
Kyllo, 535 N.W.2d at 903 (quoting Daugaard v. Baltic Co-op. Bldg. Supply Ass‘n, 349 N.W.2d 419, 425 (S.D.1984)).10 In Kyllo, this Court found statutes which extended sovereign immunity to state employees violated the open courts provision of South Dakota‘s constitution, stating:
Regardless of state employment, Employees still owed the same duty of care to drive safely as any other driver not so employed. Employees’ claimed immunization from suit does not extend to negligent individuals in any other sector of employment. The legislature cannot extend it to negligent individuals who work for the state.
Kyllo, 535 N.W.2d at 903. As the trial court stated, “Those who participate in an equine activity must be held to exercise the same care as a reasonable and prudent person would exercise under the same or similar circumstances, just as those who may be watching in the stands, driving down the highway or sitting in their living room.”
[¶ 40.] The legislature can impose only reasonable restrictions that do not infringe on common-law actions guaranteed by the constitution. Id. at 903. An individual‘s right to seek redress with regard to negligent actors is guaranteed by common law and by
[¶ 41.] The immunity from liability for the ordinary negligence of another participant provided by