#24604-a-JKK
2008 SD 115
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
TIM DUDA, Plaintiff and Appellant,
v.
PHATTY McGEES, INC.,
d/b/a HOOKY JACKS, Defendant and Appellee,
v.
WILLIE GUERRERO, Third-Party Defendant.
* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA
* * * *
HONORABLE THOMAS L. TRIMBLE
Judge
* * * *
GEORGE J. NELSON of
Abourezk & Zephier, P.C. Attorneys for plaintiff
Rapid City, South Dakota and appellant.
JOHN K. NOONEY
KIRSTEN M. TAGGART of
Nooney Solay & Van Norman, LLP Attorneys for defendant
Rapid City, South Dakota and appellee.
* * * *
ARGUED ON MAY 21, 2008
OPINION FILED 12/03/08
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KONENKAMP, Justice
[¶1.] During a fist fight in a nightclub, when a beer bottle was broken over
his friend’s head, plaintiff stepped in front of his friend to protect him from further
injury. Plaintiff was then stabbed in the neck with the broken beer bottle. In his
lawsuit against the nightclub, plaintiff alleged, among other things, that the
nightclub was negligent for failing to provide adequate and competent security. The
jury returned a special verdict finding that plaintiff assumed the risk of injury.
After the trial, the judge announced that during deliberations, the jury sent him
four written questions. Without giving notice to the parties or an opportunity to be
heard, the judge answered all four questions. On appeal, we affirm because
whether plaintiff assumed the risk of injury was properly submitted to the jury, and
plaintiff has failed to show prejudice despite the court’s error in answering the jury
questions without notice.
I.
[¶2.] On Friday, March 9, 2001, around 9:00 p.m., Timothy Duda arrived
with his friends at Phatty McGees, Inc., a restaurant and nightclub in downtown
Rapid City, South Dakota. They went upstairs where a DJ was playing music in a
room with a dance floor and a bar. It was crowded. There were nine security
personnel on duty that night, some downstairs and some upstairs.
[¶3.] At midnight, Megan Thorpe, a friend of Duda’s, went to tell Duda that
she and her boyfriend were leaving. Duda was near the bar talking to his friend,
Ray Bledsoe. As Thorpe approached Duda, she saw a man, later identified as
Dustin Hunter, get into an argument with Bledsoe. According to Thorpe, Bledsoe
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and Hunter “exchanged fists.” Thorpe then saw another man, who turned out to be
Hunter’s brother-in-law, Willie Guerrero, run past her and break a beer bottle over
Bledsoe’s head. Frightened, Thorpe turned to leave. As she turned, “there was [sic]
bouncers running at me” to break up the fight.
[¶4.] Duda too saw Guerrero’s attack on Bledsoe. He later recounted to the
jury that when the bottle was smashed over Bledsoe’s head, “I stepped in with my
back to [Bledsoe] and my arms out to . . . try to keep him from getting injured
more[.]” It was then that Guerrero stabbed Duda in the neck with the broken
bottle. At first, Duda was not aware he had been injured. Thorpe noticed his
bleeding. She led him downstairs where an ambulance was called. While they
waited, she held her hands on Duda’s throat, applying pressure “so that he wouldn’t
bleed to death.” At the hospital, Duda underwent surgery to repair damage to his
jugular vein, nerves, and neck muscles. He still suffers residual damage from the
assault.
[¶5.] Duda brought a negligence suit against Phatty’s. He alleged that the
nightclub failed to have adequate and properly trained security personnel on duty
that night, especially near the bar where he was attacked; the bar was noisy and
overcrowded; fights and assaults, and other alcohol-related disturbances had
occurred in the past; and the nightclub negligently failed to take adequate
precautions to protect patrons from these disorders. He would later argue to the
jury that the nightclub’s midnight promotion, consisting of pouring free shots of
whiskey into customers’ mouths, contributed to the overcrowding and potential
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alcohol-related conflicts, particularly around the bar where customers pressed
forward to get to the free liquor.
[¶6.] Phatty’s denied any negligence in its answer and asserted the
affirmative defenses of contributory negligence and assumption of the risk. It also
brought a third-party complaint against Guerrero for contribution and indemnity.
During trial, Duda moved for a directed verdict to dismiss the defenses of
contributory negligence and assumption of the risk. When his motion was denied,
he timely objected to instructions on those defenses. He also objected to the verdict
form lumping together his claim against Phatty’s and Phatty’s contribution and
indemnity claim against Guerrero. These objections were overruled.
[¶7.] In arguing the case to the jury, Duda’s attorney contended that the
milieu in the nightclub — overcrowding, heavy drinking, loud music, dim lights,
prior fights, and poor security — contributed to a “fight club” atmosphere, for which
his client should not have to suffer. Phatty’s attorney argued that it could not
anticipate where or when a fight would break out, but that security personnel kept
a list of known troublemakers who were excluded and that when the incident in
question occurred security personnel responded within an extremely short time.
The jury returned a special verdict, finding Phatty’s 10% negligent and Guerrero
90% negligent. But the jury also found that Duda assumed the risk of injury, thus
barring any recovery against Phatty’s. After the verdict was read and the jury was
discharged, the judge disclosed to the attorneys that during deliberations he
answered four questions from the jury. The record reveals no explanation for why
the judge failed to contact the lawyers to give them an opportunity to be heard
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before he answered the questions. Indeed, the court could have reached them
because the attorneys had previously left their phone numbers with the bailiff.
[¶8.] Duda moved for a judgment notwithstanding the verdict, or in the
alternative, a new trial. He averred error in the court’s decision to answer the four
questions without notice and an opportunity to be heard. He further contended that
the evidence did not support allowing the issues of assumption of the risk and
contributory negligence to go to the jury. From an adverse ruling on these matters,
Duda appeals asserting that the circuit court: (1) erred when it answered the four
questions from the jury without notice; (2) abused its discretion when it denied the
motion for a judgment notwithstanding the verdict, or in the alternative, a new
trial; and (3) erred when it gave the jury a special verdict form that required
allocation of fault between Phatty’s and Guerrero.
II.
Assumption of the Risk – Intervening in a Barroom Fight
[¶9.] Can a person be held to have assumed the risk of being stabbed, when
that person shielded a friend engaged in a bar fight involving a broken beer bottle?
To answer this question, we must first identify what legal responsibility businesses
bear on behalf of their patrons. In South Dakota, business proprietors owe their
customers the duty of exercising reasonable care for their safety. Mitchell v.
Ankney, 396 NW2d 312, 313 (SD 1986) (citing Restatement (Second) of Torts § 343
(1965)) (other citations omitted). Accordingly, bar owners, though not insurers for
the safety of their patrons, must exercise reasonable care to protect them from
reasonably foreseeable injury at the hands of other patrons. See generally Joan
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Teshima, J.D., Tavernkeeper’s Liability to Patron for Third Person’s Assault, 43
ALR4th 281 (originally published in 1986). When patrons assume the risk of injury,
however, bar owners may not be held liable.
[¶10.] The crucial issue in this case is whether the jury should have been
given the opportunity to decide whether Duda assumed the risk of injury. Duda
believes the issue should never have been submitted to the jury. 1 He contends that
the court erred when it failed to grant his motion for a directed verdict on whether
he assumed the risk of injury. 2 Because the entire incident occurred within a span
of thirty seconds, Duda had no time, he asserts, to appreciate the character of the
risk. Moreover, Duda was not a mutual aggressor or co-combatant, and therefore,
he argues that as an innocent person injured by the intentional act of another, the
assumption of the risk defense is inapplicable.
[¶11.] Phatty’s responds that the record supports the assumption of the risk
instruction and verdict. It believes that if we view the evidence in a light most
favorable to the verdict, we will acknowledge that Duda saw Guerrero break the
beer bottle over Bledsoe’s head before Duda stepped into the middle of the fight.
This fact alone, according to Phatty’s, leads to a reasonable inference that Duda
appreciated the nature of the risk.
1. Duda lodges no complaint on the wording of the court’s assumption of risk
instruction, only that the instruction should not have been given.
2. He also asserts that the issue of contributory negligence was erroneously
submitted to the jury. Because the jury did not reach the question of
contributory negligence, and because we affirm on the assumption of the risk
issue, we do not address whether the court erred in allowing this affirmative
defense.
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[¶12.] “‘Knowledge of the risk is the watchword of assumption of risk.’”
Prosser on Torts § 68 (5thed 1984) (citation omitted). Indeed, assumption of the
risk imports a knowing and voluntary self exposure to a known danger. Plaintiffs
cannot assume risks of activities or conditions of which they are ignorant. Id. They
“must not only know of the facts which create the danger, but [they] must
comprehend and appreciate the danger itself.” Id. “The standard to be applied is a
subjective one, of what the particular plaintiff in fact sees, knows, understands and
appreciates. In this it differs from the objective standard which is applied to
contributory negligence.” Restatement (Second) of Torts § 496D, cmt c (1965).
[¶13.] Under our traditional formulation, a person assumes the risk of injury
when the person: “(1) had actual or constructive knowledge of the risk; (2)
appreciated its character; and (3) voluntarily accepted the risk, with the time,
knowledge, and experience to make an intelligent choice.” Ray v. Downes, 1998 SD
40, ¶11, 576 NW2d 896, 898 (quoting Mack v. Kranz Farms, Inc., 1996 SD 63, ¶9,
548 NW2d 812, 814 (citation omitted)). A person is deemed to have appreciated the
risk “‘if it is the type of risk that no adult of average intelligence can deny.’” Id. ¶15
(quoting Westover v. East River Elec. Power Coop., Inc., 488 NW2d 892, 901 (SD
1992)).
[¶14.] Although Duda cites no cases directly on point, at least one court has
addressed a similar question of a bystander interceding in a barroom confrontation.
In Fagan v. Atnalta, Inc., the plaintiff voluntarily intervened in an altercation
between a female bartender, a waitress, and a rowdy group of men. 376 SE2d 204,
205 (GaCtApp 1988). One of the unruly men grabbed the bartender by the collar
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while she was trying to get them to leave the bar. The plaintiff grabbed the
bartender to keep her from being dragged outside. In response, the men dragged
the plaintiff outside and severely beat him.
[¶15.] In his suit against the bar, the plaintiff alleged negligence in failing to
provide for the safety and security of its patrons. Affirming summary judgment
against the plaintiff, the Georgia Court of Appeals wrote that while summary
judgment is not ordinarily granted on issues of negligence and assumption of the
risk, in this case the facts were clear. Id. at 206. The plaintiff assumed the risk
because he “saw and recognized the risk, and deliberately interjected himself into
the affray after the bartender was grabbed by a customer being ejected. [He]
obviously assumed the risk of injury by voluntarily confronting four rowdy
customers being ejected from a bar by management.” Id. Three judges dissented,
with two asserting that the assumption of risk question should have been decided
by a jury. Here, in contrast, the question was submitted to the jury.
[¶16.] Duda cites no case where, under similar circumstances, assumption of
the risk was deemed an inapplicable defense. He testified that before he stepped
into the fight to protect his friend, he saw Guerrero break a beer bottle over
Bledsoe’s head. Thus, while he claims he did not have time to appreciate the
character of the risk, i.e., that he would be stabbed, we fail to see how it was an
abuse of discretion for the court to submit the question to the jury. As Professor
Prosser once wrote, “Since in the ordinary case there is no conclusive evidence
against the plaintiff on [assumption of the risk issues], they are normally for the
jury to decide.” Prosser on Torts § 68. “Whether the plaintiff knows of the existence
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of the risk, or whether he understands and appreciates its magnitude and its
unreasonable character, is a question of fact, usually to be determined by the jury
under proper instructions from the court.” Restatement (Second) of Torts § 496D,
cmt e (1965).
[¶17.] Because adults of average intelligence cannot deny the obvious, a
plaintiff’s testimony on what he or she knew or understood is not conclusive. Id. at
§ 496D cmt c. No one can reasonably deny that there is a risk of injury in stepping
into the middle of a fight, especially one where a beer bottle is being used as a
weapon. See Goepfert v. Filler, 1997 SD 56, ¶9, 563 NW2d 140, 143 (obvious
danger). Duda could have waited for security personnel to intervene or he could
have summoned the police. Yet he chose to act on his own. A jury could reasonably
conclude that, having seen the broken bottle, Duda had to have known and
appreciated that the character of the risk could include that bottle.
[¶18.] Duda also asserts that because he was not a combatant, the court
abused its discretion when it denied his motion for a directed verdict. He cites no
specific authority for the idea that an innocent bystander who intervenes in a fight
cannot be held to have assumed the risk of injury. Granted, Duda was not an
aggressor. But he was no mere bystander in the sense that he was incidentally
injured by being in the vicinity of a barroom brawl. He deliberately placed himself
between his friend and two assailants. Heroism can exact a high cost. Coming to
the aid of an outnumbered friend in a fight, though understandable, and even
commendable, still reflects a conscious decision to inject oneself into a volatile and
dangerous situation.
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[¶19.] Through his various motions, Duda wanted assumption of the risk
removed from the jury’s consideration, and the trial court refused. Rulings on
motions for a directed verdict, a judgment notwithstanding the verdict, and a new
trial are reviewed under the abuse of discretion standard. Bland v. Davison
County, 1997 SD 92, ¶26, 566 NW2d 452, 460; see also Steffen v. Schwan’s Sales
Enters., Inc., 2006 SD 41, ¶7, 713 NW2d 614, 617 (citing Christenson v. Bergeson,
2004 SD 113, ¶10, 688 NW2d 421, 425) (additional citations omitted). “On
reviewing a motion for a directed verdict, we must determine whether the record
contains sufficient evidence to sustain the action, viewed in the light most favorable
to the nonmoving party.” Steffen, 2006 SD 41, ¶9, 713 NW2d at 618 (citing SDCL
15-6-50(a); Christenson, 2004 SD 113, ¶22, 688 NW2d at 427). With motions for a
judgment notwithstanding the verdict, we view the evidence in a light most
favorable to the verdict. Fechner v. Case, 2003 SD 37, ¶6, 660 NW2d 631, 633-34.
Considering all the evidence in accordance with these standards, we conclude that
the trial court did not abuse its discretion in denying Duda’s motions.
III.
The Jury Questions
[¶20.] Duda complains that the “court’s unilateral receipt of the jury’s
questions, and unilateral answering of the same, all occurring in ex parte fashion,”
constitutes error per se, mandating reversal and a new trial. No showing of
prejudice is required, Duda contends, because “the court took it upon itself to not
contact the parties’ counsel, to not have the questions read in open court and on the
record, and to not take from the parties’ counsel their various objections,
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supplementations, or further proposed instructions.” If any showing of prejudice is
required, Duda argues that each response was inappropriate and harmed the case.
[¶21.] Until recently, our rules explicitly required a court to notify counsel
and “settle in writing . . . a response to a jury question sent out by the jury during
deliberations.” SDCL 15-6-51(c) (amended July 1, 2006). As of July 1, 2006, SDCL
15-6-51(c) was amended to state:
(1) A party who objects to an instruction or the failure to give an
instruction must do so on the record, stating distinctly the
matter objected to and the grounds of the objection.
(2) An objection is timely if:
(A) A party that has been informed of an instruction or
action on a request before the jury is instructed and before final
jury arguments, as provided by subdivision 15-6-51(b)(1), objects
at the opportunity for objection required by subdivision 15-6-
51(b)(2); or
(B) A party that has not been informed of an instruction
or action on a request before the time for objection provided
under subdivision 15-6-51(b)(2) objects promptly after learning
that the instruction or request will be, or has been, given or
refused.
The rule was amended to more closely follow the federal rule. See FedRCivP 51.
Perhaps this amendment has created some confusion. Yet, despite the fact that
South Dakota rules no longer contain an express requirement that a court inform
the parties of jury questions or that the questions be settled in writing, it is still
error even under the federal rule for a court to answer jury questions without giving
the parties notice and an opportunity to be heard. See Dunne v. Libbra, 448 F3d
1024, 1028 (8thCir 2006); Murphy v. Tivoli Enters., 953 F2d 354, 360-61 (8thCir
1992). For such error to be reversible in a civil case, however, prejudice must be
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established. See Dunne, 448 F3d at 1028 (citing Murphy, 953 F2d at 360-61; Powell
v. Kroger Co., 644 F2d 1245, 1247 (8thCir 1981)).
[¶22.] Here, the court answered four questions from the jury without notice
to the parties and an opportunity for them to be heard. By so doing, the court
clearly erred. See Gilbert v. Caffee, 293 NW2d 893, 895 (SD 1980). To determine
whether Duda was prejudiced by the court’s errors, we must examine each jury
question and the answer provided.
[¶23.] First jury question:
Were any of Tim’s lost wages or medical bills paid already? If
yes how were they paid e.g. by Willie during the criminal case?
By Phaties [sic]? or By Tim personally – or By other means? Or
But [sic] personal insurance.
The court answered: “This is not for you to consider.” According to Duda, the
court’s answer was prejudicial because it failed to state the applicable law. Had the
court provided Duda an opportunity to be heard, Duda claims he would have urged
the use of a modified version of South Dakota Pattern Jury Instruction 2-13,
pertaining to insurance coverage. Phatty’s responds that the court’s answer
properly informed the jury that it was not to consider any payment or insurance
related to Duda’s medical expenses, and therefore, the answer was not prejudicial.
[¶24.] Aside from Duda’s claim that he would have proposed his modified
version of a pattern instruction, he has not demonstrated how he was prejudiced by
the court’s answer. The response by the court did not inject the issue of insurance
into the case. See Beck v. Wessel, 90 SD 107, 113-14, 237 NW2d 905, 908-09 (1976).
On receiving the question, the court should have notified counsel for both parties.
Failing to do so, however, does not mandate reversal.
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[¶25.] Second jury question:
We have a question on instruction No 13[.] Please explain the
meaning of [sic] was that negligence a legal cause of injury to
the plaintiff? Please explain what the term legal cause is
meaning. Explain legal cause.
The court responded, “Negligence is defined in Instruction #20[.] Legal Cause is
defined in Instruction #21[.]” According to Duda, the court’s answer was
prejudicial, first, because the court used a “legal cause” instruction rather than the
former “proximate cause” instruction, and, second, the legal cause instruction
confused the jury, and by referring the jury to the instructions defining the terms,
the confusion was compounded.
[¶26.] In his appellate brief, Duda claims he objected to the court’s use of the
“legal cause” instruction and proposed “the venerable older version of the causal
connection instructions, the ones that use the term ‘proximate’ cause rather than
‘legal’ cause.” Our review of the record does not support this claim. He did object to
instruction 13, which relates to legal cause, but his objection was on different
grounds. Moreover, although the record includes thirty-five proposed instructions
from Phatty’s, there is only one instruction that arguably was proposed by Duda.
The instruction is entitled, “Plaintiff’s Proposed Jury Instruction 38,” but this does
not concern legal or proximate cause. There is also a pretrial conference checklist
filed by Duda that indicates his intent to submit proposed instructions. We cannot
find these proposed instructions. As the appealing party, Duda had the duty to
ensure an adequate record for our review. See Toben v. Jeske, 2006 SD 57, ¶11, 718
NW2d 32, 35 (quoting Caneva v. Miners & Merchants Bank, 335 NW2d 339, 342
(SD 1983)).
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[¶27.] There being no previous objection to the court’s use of legal cause
rather than proximate cause, Duda cannot now claim prejudice because the court
used the legal cause instruction. “An attorney must be clear when objecting to jury
instructions ‘so the trial court is advised of what possible errors exist and be
granted the opportunity to correct any instructions.’” Parker v. Casa Del Rey-Rapid
City, Inc., 2002 SD 29, ¶15, 641 NW2d 112, 118 (citation omitted). Further,
although the court should not have answered the jury’s question without providing
notice to the parties, we cannot say that the court’s answer referring the jury to
existing instructions prejudiced Duda.
[¶28.] Third jury question:
Instructions state first we must decide (#13) if pla[i]nt[iff]
assume the risk of injury or damage. But the verdict form states
is Phats [negligent] as the first question[.] [T]his contradicts
each other. Do we start with #1 on the verdict form? Do we
answer them in the order on the form?
The court answered, “Instruction #13 is answered at #4 on the verdict form. Yes,
you start with #1 and answer in the order indicated on the verdict form.” Duda
does not identify how this answer was prejudicial, but instead contends that the
court’s response to this question must be considered in context with the court’s
response to the fourth question.
[¶29.] Fourth jury question:
What is the definition of a known risk? does this mean he knows
he will get an injury? Or there is a risk for harm.
The court answered this question, writing, “A known Risk is a Risk you know
about.” From this answer, prejudice occurred in Duda’s view, first, because the jury
should never have been instructed on the affirmative defense of assumption of the
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risk, and, second, the court’s answer was misleading and incorrectly stated the law.
Duda would have had the court give the jury the Fifth Edition Black’s Law
Dictionary definition of a known risk.
[¶30.] Undoubtedly, this question went to the heart of the issue the jury had
to decide: did Duda know of the specific risk that ultimately resulted in his injury?
Yet the court’s elliptical answer neither added nor subtracted any substance from
the settled instructions. The answer was sheer tautology, and, at most, a gloss on
the instructions. Duda says he would have objected had he been informed of the
question and would have requested the use of a law dictionary definition for the
term “known risk,” but he gives no indication how using his proposed definition
might have produced a different result. If we regard the court’s answer as an
erroneous instruction, prejudice can be established if in all probability it produced
some effect upon the verdict and was harmful to Duda’s substantial rights. See
First Premier Bank v. Kolcraft Enterps., Inc., 2004 SD 92, ¶40, 686 NW2d 430, 448.
The prejudice asserted by Duda is more related to the fact that the court gave an
assumption of the risk instruction in the first place. Because Duda has not
identified how he was prejudiced by any of the judge’s answers, reversal is not
warranted.
[¶31.] Lastly, Duda contends that the court erred when it used a verdict form
that instructed the jury to apportion fault between Guerrero and Phatty’s if the jury
found Phatty’s negligent. Because the verdict on assumption of the risk disposed of
Duda’s claim in any event, we decline to reach this issue.
[¶32.] Affirmed.
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[¶33.] GILBERTSON, Chief Justice, and SABERS, and ZINTER, Justices,
concur.
[¶34.] MEIERHENRY, Justice, dissents.
MEIERHENRY, Justice (dissenting).
[¶35.] I cannot agree that the jury was properly instructed on assumption of
the risk. In fact, whether the common law assumption of the risk doctrine
completely survives in face of the legislative comparative negligence scheme is
questionable. South Dakota tort liability law only refers to contributory negligence
and contains no mention of assumption of the risk as a defense. 3 Some
jurisdictions have determined that comparative negligence has subsumed
assumption of the risk and is not a complete bar to recovery. See Braswell v. Econ.
Supply Co., 281 So2d 669 (Miss 1973); Springrose v. Willmore, 292 Minn 23, 192
NW2d 826 (1971); City of Tucson v. Holliday, 3 Ariz App 10, 411 P2d 183 (1966);
21 Am Jur Trials 715, § 11; Restatement (Third) Torts: Apportionment of Liab. § 2
3. SDCL 20-9-1 provides: “Every person is responsible for injury to the person,
property, or rights of another caused by his willful acts or caused by his want
of ordinary care or skill, subject in the latter cases to the defense of
contributory negligence.” SDCL 20-9-2 provides:
In all actions brought to recover damages for injuries to a person or to
that person’s property caused by the negligence of another, the fact
that the plaintiff may have been guilty of contributory negligence does
not bar a recovery when the contributory negligence of the plaintiff
was slight in comparison with the negligence of the defendant, but in
such case, the damages shall be reduced in proportion to the amount of
plaintiff’s contributory negligence.
Id.
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cmt i (2000) (replacing Restatement (Second) Torts §§ 496C-496G (1965)). 4
However, plaintiff is not urging this argument; he merely claims that the facts did
not support the trial court instructing the jury on assumption of the risk.
[¶36.] The court instructed the jury using South Dakota Pattern Jury
Instructions 13-01 and 13-02. The instructions provided the following language:
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:
(1) that the plaintiff had actual or constructive
knowledge of the existence of the specific risk
involved;
(2) that the plaintiff appreciated the risk’s character;
and
(3) that the plaintiff voluntarily accepted the risk,
having had the time, knowledge, and experience to
make an intelligent choice.
4. While South Dakota still relies on the Restatement (Second) of Torts, the
Restatement (Third) distinguishes implied assumption of the risk.
Restatement (Third) Torts: Apportionment of Liab. § 2 cmt i provides as
follows:
i. Implied assumption of risk distinguished. This Section does not
apply when a plaintiff’s conduct demonstrates merely that the plaintiff
was aware of a risk and voluntarily confronted it. That type of
conduct, which is usually called “implied assumption of risk,” does not
otherwise constitute a defense unless it constitutes consent to an
intentional tort. See Comment f. Thus, the rule stated in this Section
rejects and replaces Restatement Second, Torts §§ 496C-496G. A
plaintiff’s conduct in the face of a known risk, however, might
constitute plaintiff’s negligence and therefore result in a percentage
reduction of the plaintiff’s recovery. See § 3, Comment c. (In
jurisdictions that continue to recognize implied assumption of risk as a
comparative defense, or that continue to use the term “implied
assumption of risk” to refer to a type of plaintiff’s negligence, the
defense results in a percentage reduction of the plaintiff’s recovery. In
contrast, a valid contractual limitation on liability, within its terms,
creates an absolute bar to a plaintiff's recovery from the other party to
the contract.)
Id.
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SD Pattern Jury Instruction 13-01 (Revised 2002).
While the same conduct on the part of the plaintiff may amount
to both assumption of risk and contributory negligence, the two
defenses are distinct. Assumption of the risk involves a
voluntary or deliberate decision to encounter a known peril
whereas contributory negligence frequently involves the
inadvertent failure to notice danger. In addition, contributory
negligence must be a legal cause of the injury in order to be a
defense, while assumption of the risk need not cause the injury
in order to bar recovery.
SD Pattern Jury Instruction 13-02 (Revised 2004). During deliberation, the jury
sent out the following questions concerning assumption of the risk: “What is the
definition of a known risk? Does this mean he knows he will get an injury? Or
there is a risk for harm.” Without seeking input from counsel for either party, the
judge answered the question, “A known risk is a risk you know about.”
[¶37.] I believe that the judge’s answer was inadequate and did not fully
inform the jury on how to determine the risk assumed. Had the judge notified
counsel in regard to the jury question, counsel may have been able to answer the
jurors’ questions with more clarity. As the judge’s answer stands, it provides no
further explanation as to how to define “known risk.”
[¶38.] The comments to South Dakota Pattern Jury Instruction 13-01 on
assumption of risk point out the possible confusion when this instruction is given.
As the above instruction sets forth, defendant must prove
three elements in order to prevail on the defense of assumption
of risk.
As to the first prong of the defense, “constructive
knowledge” is knowledge that is imputed to the plaintiff
where the risk is so plainly observable that anyone of
competent faculties could be charged with knowledge of
the risk. Also, plaintiff must have had knowledge of the
specific risk which ultimately injured the plaintiff; it is
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insufficient to prove the first prong of the defense to
merely show that plaintiff put himself in a generalized
zone of danger.
As to the second prong of the defense, an individual is
held to have appreciated the risk’s character if it was a risk that
no adult person of average intelligence can deny.
Regarding the third prong of defendant’s burden, a
plaintiff does not voluntarily accept a risk where the
defendant’s wrongful conduct has left plaintiff no
reasonable alternative course of conduct to (a) avert harm
to plaintiff or another, or (b) exercise or protect a right or
privilege of which the defendant has no right to deprive
the plaintiff.
The defenses of assumption of risk and of contributory
negligence have often times been confused. Quoting Prosser, the
South Dakota court in Bartlett v. Gregg, 77 SD 406, 413, 92
NW2d 654 (1958) said: “In working out the distinction, the
courts have arrived at the conclusion that assumption of risk is a
matter of some fault or departure from the standard of
reasonable conduct, however unwilling or protesting the plaintiff
may be. . . . The difference is frequently one between risks
which were in fact known to the plaintiff, or so obvious that [the
plaintiff] must be taken to have known of them, and risks which
[the plaintiff] merely might have discovered by the exercise of
ordinary care.”
SD Pattern Jury Instruction 13-01 cmt (emphasis added).
[¶39.] Additionally as pointed out by Chief Justice Gilbertson in Ray v.
Downes, the consent element of assumption of the risk is confusing. 1998 SD 40
¶13, 576 NW2d 896, 899. “In the words of Prosser, ‘This is a distinction which has
baffled a great many law students, some judges, and unhappily a few very learned
legal writers.’” Id. (quoting W. Page Keeton et al., Prosser and Keeton on the Law
of Torts § 68, at 485 (5thed 1984)).
It is here that there is the greatest misapprehension and
confusion as to assumption of risk, and its most frequent
misapplication. It is not true that in any case where the plaintiff
voluntarily encounters a known danger he necessarily consents
to any future negligence of the defendant. A pedestrian who
walks across the street in the middle of a block, through a
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stream of traffic traveling at excessive speed, cannot by any
stretch of the imagination be found to consent that the drivers
shall not use care to watch for him and avoid running him down.
On the contrary, he is insisting that they shall. This is
contributory negligence pure and simple; it is not assumption of
the risk.
Id. Given the confusion of applying assumption of the risk, the jury here needed
more guidance. Further instruction similar to the comments to the pattern jury
instruction would have helped. For example, “plaintiff must have had knowledge
of the specific risk which ultimately injured the plaintiff; it is insufficient to prove
the first prong of the defense to merely show that plaintiff put himself in a
generalized zone of danger.” SD Pattern Jury Instructions 13-01 cmt.
[¶40.] Also, as to the third element, that “a plaintiff does not voluntarily
accept a risk where the defendant’s wrongful conduct has left plaintiff no
reasonable alternative course of conduct to (a) avert harm to plaintiff or another,
or (b) exercise or protect a right or privilege of which the defendant has no right to
deprive the plaintiff.” Id. This also corresponds to section 496E of the
Restatement (Second) of Torts. This section provides that:
(1) A plaintiff does not assume a risk of harm unless he
voluntarily accepts the risk. (2) The plaintiff’s acceptance of a
risk is not voluntary if the defendant’s tortious conduct has left
him no reasonable alternative course of conduct in order to (a)
avert harm to himself or another, or (b) exercise or protect a
right or privilege of which the defendant has no right to deprive
him.
Restatement (Second) Torts § 496E (1965) (emphasis added). “[W]here the
defendant is under a duty to the plaintiff, and his breach of duty compels the
plaintiff to encounter the particular risk in order to avert other harm to himself,
his acceptance of the risk is not voluntary, and he is not barred from recovery.” Id.
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cmt c. This same rule applies when the plaintiff acts to prevent harm to another.
Id. The facts supported further instruction on the “alternative course of conduct.”
[¶41.] I would reverse both because the assumption of risk instructions
were incomplete and tended to confuse and mislead the jury and because the
plaintiff was prejudiced when the judge did not notify counsel of the jury’s question
in order to give him the opportunity to offer further instructions in response to the
jury question.
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