#27191-a-SLZ
2015 S.D. 49
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
JILL LENARDS, Plaintiff and Appellant,
v.
JOHN DEBOER, Defendant and Appellee.
****
APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
CODINGTON COUNTY, SOUTH DAKOTA
****
THE HONORABLE RONALD K. ROEHR
Judge
****
NANCY J. TURBAK BERRY
SEAMUS W. CULHANE of
Turbak Law Office, PC
Watertown, South Dakota Attorneys for plaintiff
and appellant.
DEREK A. NELSEN of
Fuller & Williamson, LLP
Sioux Falls, South Dakota Attorneys for defendant
and appellee.
****
CONSIDERED ON BRIEFS
ON MARCH 23, 2015
OPINION FILED 06/17/15
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ZINTER, Justice
[¶1.] John DeBoer and Jill Lenards were in a car accident. Lenards sued
DeBoer for negligence, limiting her damages claim to pain and suffering. The jury
returned a general verdict for DeBoer, and the circuit court denied Lenards’ motion
for a new trial. Lenards appeals. We affirm.
Facts and Procedural History
[¶2.] On June 4, 2009, Lenards was stopped on a highway waiting to turn
left with her turn signal on. DeBoer, who was traveling in the same direction, was
unable to stop in time to avoid colliding with the rear end of Lenards’ car. DeBoer
pleaded guilty to careless driving as a result of the accident. At trial, DeBoer
claimed that the accident was unavoidable because the sun unexpectedly reflected
off Lenards’ back window causing him to temporarily lose his vision. DeBoer,
however, also testified that the accident was “completely his fault.”
[¶3.] Immediately after the accident, Lenards told DeBoer that she was
alright. Lenards also told both her OnStar attendant and the officer on scene that
she did not require an ambulance. Lenards’ sister gave Lenards a ride home. The
two decided to go to the emergency room because Lenards was starting to see “dots.”
Lenards told the emergency room doctor that her neck hurt; however, Lenards did
not say that her back hurt. The emergency room doctor examined Lenards and
found no vertebral tenderness, no CVA tenderness, and no hip tenderness.
[¶4.] On June 9, 2009, five days after the accident, Lenards saw her doctor.
Lenards complained of chronic dizziness—related to an inner ear tumor—and of
neck pain. She had a CT scan of her neck. The CT scan was negative for any
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injury, and she was sent home. Lenards did not complain of back pain at this
appointment. She would not indicate that her back hurt until twenty-one days after
this appointment—over three weeks after the accident.
[¶5.] On June 30, 2009, Lenards went to her family practice clinic and
complained of lower back pain. An x-ray of her lumbar spine was taken, and her
doctor indicated that her SI joints were normal. Her doctor recommended that
Lenards attend physical therapy. Her first physical therapy appointment was on
July 6, 2009. At her second appointment, Lenards reported that her lower back was
better. On July 29, 2009, Lenards reported no numbness, no weakness, and no back
pain. She felt well enough that she canceled her remaining appointments and
stopped going to physical therapy.
[¶6.] Lenards started chiropractic treatment six weeks after she ended
physical therapy. She sought the treatment for neck and back pain. Lenards
continued to seek chiropractic treatment for five years; however, she would take
breaks in treatment when her pain decreased. These breaks lasted as long as five
months. On November 9, 2009, one of Lenards’ doctors wrote that Lenards “was
involved in a motor vehicle accident, following which she was evaluated for spinal
injuries. None were identified. However, the patient does have evidence for
arthritis. This could definitely contribute to her future of having chronic back pain
secondary to chronic arthritis and large pendulous breasts.” Lenards had a slip-
and-fall accident that caused additional pain in February 2011. She also underwent
breast reduction surgery because of “longstanding neck and back pain secondary to
macromastia,” a condition unrelated to the accident.
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[¶7.] On May 22, 2012, Lenards sued DeBoer for pain and suffering
allegedly caused by the accident. Lenards did not request damages for the medical
bills she incurred following the accident. In fact, she successfully obtained an in
limine ruling prohibiting the defense from introducing her medical bills associated
with the accident. Lenards’ trial strategy was to limit her claim to pain and
suffering she claimed to have suffered as a result of the accident. Lenards also
limited that claim to a lower back injury. She told the jury that she was not suing
for neck pain or upper back injuries. Her claims were limited to pain and suffering
damages from her lower back and leg. 1
[¶8.] Dr. Thomas Ripperda, DeBoer’s medical expert, opined that any pain
complaints related to the accident had been resolved by July 31, 2009—less than
two months after the accident. According to Dr. Ripperda, pain complaints after
August 12, 2009, could not be attributed to the accident. He also testified that
Lenards’ arthritis and body habitus could lead to persisting back problems. Dr.
Ripperda believed that, to a reasonable degree of medical certainty, Lenards’ low
1. At trial, Lenards’ counsel told the jury that Lenards was only suing for low
back pain and leg pain. Counsel informed the jury that Lenards’ neck pain
was “really not part of this lawsuit[]” and that she was not “suing John
DeBoer . . . for neck pain[.]” Lenards stated in her opening statement that
“back pain” was the “reason . . . why we are here.” Counsel then went on to
state: “We don’t want anything for the upper back pain” and “quite frankly,
the neck pain isn’t that big of a deal.” Lenards’ counsel concluded, “what we
are here for is the low back pain.”
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back pain could have been caused by a combination of obesity and macromastia. He
indicated that there were no objective findings of any injury. 2
[¶9.] At trial, the circuit court denied Lenards’ motion for a directed verdict
on liability. The court also instructed the jury, over Lenards’ objection, that DeBoer
could be excused from liability if it found that the collision was an “unavoidable
accident.” DeBoer requested that the case be decided by the jury on special
interrogatories. Lenards objected and argued for a general verdict, which was
submitted to the jury. Lenards asked for $115,000 for pain and suffering. The jury
found for DeBoer. Lenards moved for a new trial, which was denied by the court.
Lenards now appeals the denial of that motion raising three liability issues:
whether the evidence was insufficient to support the jury’s verdict; whether the
circuit court erred in instructing the jury that it could consider whether this was an
unavoidable accident; and, whether the issue of liability should have been directed
in her favor. 3
Decision
[¶10.] The denial of a motion for a new trial is reviewed for an abuse of
discretion. Hewitt v. Felderman, 2013 S.D. 91, ¶ 14, 841 N.W.2d 258, 262. “This
2. Dr. Ripperda’s independent medical evaluation reflected that he had “some
concerns regarding the relatedness of the low back symptoms to the motor
vehicle crash[.]” While he admitted it could be “medical[ly] probable” and
that her symptoms, “in theory,” could be from the “pressure from a seatbelt
from a motor vehicle crash,” he could not “state with any degree of reasonable
medical probability that [Lenards’ symptoms were] directly related to the
motor vehicle crash[.]” Dr. Ripperda also wrote that it was “questionable”
whether Lenards’ leg symptoms were caused by the accident.
3. Lenards’ motion for judgment as a matter of law was not preserved because it
was not renewed at the close of the evidence.
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Court will uphold a jury verdict ‘if the jury’s verdict can be explained with reference
to the evidence,’ viewing the evidence in a light most favorable to the verdict.” Id.
(quoting Alvine Family Ltd. P’ship v. Hagemann, 2010 S.D. 28, ¶ 18, 780 N.W.2d
507, 512). “This Court should only set a jury’s verdict aside in ‘extreme cases’ where
the jury has acted under passion or prejudice or where ‘the jury has palpably
mistaken the rules of law.’” Id. (quoting Roth v. Farner-Bocken Co., 2003 S.D. 80,
¶ 10, 667 N.W.2d 651, 659). “‘[I]f a verdict is susceptible to more than one
construction, the construction which sustains the verdict must be applied.’” Zahn v.
Musick, 2000 S.D. 26, ¶ 31, 605 N.W.2d 823, 830 (quoting Morrison v. Mineral
Palace, 1998 S.D. 33, ¶ 11, 576 N.W.2d 869, 872).
[¶11.] Lenards’ alleged errors all relate to liability. Lenards argues that she
was entitled to a new trial because DeBoer essentially admitted liability and she
was indisputably injured. Lenards points out that even Dr. Ripperda said that
Lenards was injured.
[¶12.] Lenards also claims that at least some damages were undisputed. We
disagree. Lenards only sought pain and suffering damages for her lower back and
leg, and evidence was introduced that the accident did not cause the pain and
suffering she experienced in those body regions. Although Dr. Ripperda noted that
“Lenards did suffer a thoracic and lumbar strain from the motor vehicle crash[,]” he
expressed “concerns regarding the relatedness of the low back symptoms[.]” Dr.
Ripperda also thought it was “questionable” whether Lenards’ leg symptoms were
caused by the accident. Because Lenards limited her claim to pain and suffering
from her leg and lower back, the jury could have accepted Dr. Ripperda’s concerns,
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especially in light of the fact that Lenards did not complain of lower back or leg pain
until over three weeks after the accident. Further, Lenards’ tests following the
accident showed no objective signs of injury. And finally, the jury could have found,
after considering the evidence from her doctor, physical therapist, and chiropractor,
that Lenards’ pain and suffering was caused from a combination of her non-accident
related health issues—arthritis, obesity, and macromastia.
[¶13.] Considering all the evidence, the question of damages caused by this
accident was a disputed question of fact for the jury. See Waldner v. Berglund, 2008
S.D. 75, ¶ 14, 754 N.W.2d 832, 836 (“[T]he issue of damages in a personal injury
action is peculiarly a question for the jury.”) (quoting Itzen v. Wilsey, 440 N.W.2d
312, 313 (S.D. 1989)) (internal quotation mark omitted). Moreover, “pain and
suffering . . . damages are unique since they do not compensate a plaintiff for a
known monetary loss which has been experienced or is likely to be experienced.
Thus, there is no way to quantifiably measure the amount that a trier of fact should
award in dollars.” Bakker v. Irvine, 519 N.W.2d 41, 48 (S.D. 1994). Consequently,
under the facts of this case, the jury was free to accept or reject part or all of
Lenards’ claim that the $115,000 she sought for pain and suffering was causally
connected to this accident.
[¶14.] Because Lenards’ damages claim was the subject of a factual dispute,
and because the jury returned a general verdict, we are precluded from reviewing
her liability issues. “[I]n a civil case, if a general verdict is handed down and the
jury could have decided the case on two theories, one proper and one improper, the
reviewing court will assume that it was decided on the proper theory.” Thomas v.
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Sully Cnty., 2001 S.D. 73, ¶ 7, 629 N.W.2d 590, 592 (quoting Eberle v. Siouxland
Packing Co., Inc., 266 N.W.2d 256, 258 (S.D. 1978)). “Because a general verdict
form was used, ‘we have no way of knowing whether the jury’ based its decision” on
the issue of liability or damages. See id. at 594.
[¶15.] The use of a general verdict is especially problematic in this case.
Lenards sought only unquantifiable pain and suffering damages, and the evidence
was disputed regarding that claim. Accordingly, even if the circuit court erred in
submitting the case to the jury on liability and in giving an unavoidable accident
instruction, the jury verdict must be presumed to be supported because of the
disputed damages. See id. We therefore affirm without reaching Lenards’ liability
issues.
[¶16.] GILBERTSON, Chief Justice, and SEVERSON and WILBUR,
Justices, concur.
[¶17.] KERN, Justice, concurs specially.
KERN, Justice (concurring specially).
[¶18.] I write specially to emphasize that the unavoidable accident
instruction given in this case was improper. We said in Meyer v. Johnson that the
“unavoidable accident instruction usually is unnecessary.” 254 N.W.2d 107, 110
(S.D. 1977) (quoting Cordell v. Scott, 79 S.D. 316, 322-23, 111 N.W.2d 594, 598
(1961)). This is because “[i]n the ordinary negligence action the jury is adequately
instructed on the ultimate issues by instructions on negligence, contributory
negligence, burden of proof, and proximate cause.” Id. (quoting Cordell, 79 S.D. at
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322, 111 N.W.2d at 598). Further, we remarked that the instruction may be proper
in a case “where there is evidence that something other than the negligence of one
of the parties caused the mishap.” Id. (quoting Cordell, 79 S.D. at 323, 111 N.W.2d
at 598). We have also stated that the element of surprise is necessary to warrant
the instruction. Alley v. Siepman, 87 S.D. 670, 678, 214 N.W.2d 7, 11 (1974).
[¶19.] We employ an objective test to assess whether a certain phenomenon
may constitute a viable “surprise” worthy of an unavoidable accident instruction.
See id. at 677-78, 214 N.W.2d at 11. In Howard v. Sanborn, we held that the
unavoidable accident instruction was not proper where the incident was reasonably
foreseeable. 483 N.W.2d 796, 799 (S.D. 1992). We determined that blinding
headlights do not satisfy the surprise element for an unavoidable accident
instruction. Id. “‘[B]linding headlights . . . [are] not an intervening cause’” of a
collision, but are among the known conditions that impose a duty on drivers to
exercise ordinary care. Id. (quoting 2 Blashfield Automobile Law & Practice § 53.6).
Furthermore, the Court noted that rather than excusing liability, the sudden
presence of a blinding light would call for increased care by a motorist, such as “a
diminution of speed.” Id. (citing Pleinis v. Wilson Storage & Transfer Co., 75 S.D.
397, 400, 66 N.W.2d 68, 71 (1954)). The same rationale applies here. Sunlight
reflecting on a clear summer’s day is a condition known to drivers or, at the very
least, a condition of which a reasonably prudent driver should be aware. There was
no objective basis to warrant the unavoidable accident instruction in this case.
[¶20.] When we first addressed the unavoidable accident doctrine in Cordell,
we elected to severely limit the use of this instruction. 79 S.D. at 320, 111 N.W.2d
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at 596. Particularly relevant here, however, is the language we quoted from the
California Supreme Court:
The instruction is not only unnecessary, but it is also confusing.
When the jurors are told that ‘in law we recognize what is
termed an unavoidable or inevitable accident’ they may get the
impression that unavoidability is an issue to be decided and
that, if proved, it constitutes a separate ground of nonliability of
the defendant. Thus they may be misled as to the proper manner
of determining liability, that is, solely on the basis of negligence
and proximate causation. The rules concerning negligence and
proximate causation which must be explained to the jury are in
themselves complicated and difficult to understand. The further
complication resulting from the unnecessary concept of
unavoidability or inevitability and its problematic relation to
negligence and proximate cause can lead only to
misunderstanding.
Id. at 320-21, 111 N.W.2d at 597 (emphasis added) (quoting Butigan v. Yellow Cab
Co., 320 P.2d 500, 505 (Cal. 1958)). This is especially true in this case where the
error of giving the unavoidable accident instruction was compounded by the
reference to the unavoidable accident defense within instructions 20 and 21 (safety
statute instructions). 4 The reference had the potential to further confuse the jury
and gave undue emphasis to the unwarranted unavoidable accident instruction.
4. Jury instruction 20 provided:
A safety statute in this state provides:
Any person who drives any vehicle upon a highway
carelessly and without due caution, at a speed or in a
manner so as to endanger any person or property is guilty
of careless driving.
Pleading guilty to such a violation does not conclusively
establish the violation, but constitutes an admission against
interests.
This statute sets the standard of care of a reasonable person. If
you determine that John DeBoer violated it, his violation is
negligence unless you find that the accident was unavoidable.
(continued . . .)
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[¶21.] Our pattern jury instructions make no recommendation as to a proper
formulation of the unavoidable accident instruction. See South Dakota Pattern
Jury Instruction 20-30-10. This is likely because the propriety of the instruction is
dependent upon the facts of the case, and its use is disfavored. Indeed, we have
found that the use of the instruction is inappropriate or constitutes reversible error
in a significant majority of cases. 5
[¶22.] When we decided the Cordell case in 1961, we noted that California’s
rejection of the unavoidable accident instruction was “unique.” 79 S.D. at 320, 111
N.W.2d at 596. Today, however, 21 States and the District of Columbia have
________________________
(. . . continued)
(Emphasis added.)
Jury instruction 21 provided:
A safety statute in this state provides:
The driver of a motor vehicle may not follow another
vehicle more closely than is reasonable and prudent,
having due regard for the speed of such vehicles and the
traffic upon and condition of the highway.
This statute sets the standard of care of a reasonable person. If
you determine that John DeBoer violated it, his violation is
negligence unless you find that the accident was unavoidable.
(Emphasis added.)
5. This Court affirmed the denial of the instruction in the following cases: Boyd
v. Alguire, 82 S.D. 684, 693, 153 N.W.2d 192, 197 (1967); Alley, 87 S.D. at
677-78, 214 N.W.2d at 11; Carpenter v. City of Belle Fourche, 2000 S.D. 55, ¶
32, 609 N.W.2d 751, 764. In the following cases, the use of the instruction
was determined to be error: Meyer, 254 N.W.2d at 110; Del Vecchio v. Lund,
293 N.W.2d 474, 476 (S.D. 1980); Plucker v. Kappler, 311 N.W.2d 924, 925
(S.D. 1981); Hoffman v. Royer, 359 N.W.2d 387, 389 (S.D. 1984); Stevens v.
Wood Sawmill, Inc., 426 N.W.2d 13, 17 (S.D. 1988); Howard, 483 N.W.2d at
799. On three occasions, the Court held that the giving of the instruction was
not reversible error: Cordell, 79 S.D. at 323, 111 N.W.2d at 598; Herman v.
Spiegler, 82 S.D. 339, 343-44, 145 N.W.2d 916, 918 (1966); Artz v. Meyer,
1999 S.D. 156, ¶ 17, 603 N.W.2d 532, 536.
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abandoned the unavoidable accident instruction and 15 States have severely
criticized or limited it. Hancock-Underwood v. Knight, 670 S.E.2d 720, 723 (Va.
2009). 6 Certainly our own precedents and this national trend are cause to question
the continued use of the unavoidable accident instruction.
[¶23.] Based on the evidence in this case, unavoidability should not have
been an issue, and the circuit court erred when it gave the unavoidable accident
instruction. Even so, I must concur with the Court’s decision to affirm the jury
verdict because a general verdict form was used at trial. The use of this verdict
form prevents us from determining whether the jury concluded that DeBoer was not
at fault, or that DeBoer was at fault but Lenards’ alleged damages were not caused
by the accident or established by the evidence. See majority opinion supra ¶¶ 14-15.
It is settled law that we are bound to “assume that [the case] was decided on the
proper theory.” Thomas, 2001 S.D. 73, ¶ 7, 629 N.W.2d at 592 (quoting Eberle, 266
N.W.2d at 258).
6. In Knight, the Virginia Supreme Court stated:
“Upon review of the decisions of the highest courts of the various
states, it appears that twenty states [(now twenty-one states
including Virginia)] and the District of Columbia do not permit
[the unavoidable accident] instruction under any circumstance;
fifteen states have strongly criticized the instruction but allow it
in rare circumstances; nine states appear to allow the
instruction; and the highest courts of five states have not
addressed the issue.”
Knight, at 723 (footnotes omitted). For a full list of the cases indicating each
jurisdiction’s disposition on the unavoidable accident instruction, see Knight,
at 723 nn.1-4.
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