#24551-rev&rem-ROEHR, Circuit Judge
2008 SD 42
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
EDITH G. HARMON and
JOSEPH HARMON, Plaintiffs and Appellants,
v.
ANITA M. WASHBURN, Defendant and Appellee.
* * * *
APPEAL FROM THE CIRCUIT COURT
OF THE SIXTH JUDICIAL CIRCUIT
HAAKON COUNTY, SOUTH DAKOTA
* * * *
HONORABLE JAMES W. ANDERSON
Judge
* * * *
DYLAN A. WILDE
THOMAS E. BRADY of
Brady Pluimer, PC
Spearfish, South Dakota
COURTNEY R. CLAYBORNE of
Clayborne, Loos, Strommen &
Sabers, LLP Attorneys for plaintiffs
Rapid City, South Dakota and appellants.
ROBERT B. ANDERSON of
May, Adam, Gerdes & Thompson, LLP Attorneys for defendant
Pierre, South Dakota and appellee.
* * * *
CONSIDERED ON BRIEFS
JANUARY 7, 2008
OPINION FILED 6/4/08
#24551
ROEHR, Circuit Judge
[¶1.] Edith G. Harmon (Edith) and Joseph Harmon (Joseph) (collectively
Harmons) brought a negligence action for personal injuries against Anita M.
Washburn (Washburn). The trial court denied Harmons' motion for judgment as a
matter of law on the issue of Washburn's negligence and on the issue of Edith's
contributory negligence. The jury returned a general verdict denying Harmons'
claim. 1 The trial court then denied Harmons' renewed motion for judgment as a
matter of law and, alternatively, for a new trial. Harmons appeal the denial of their
motions. We reverse and remand.
FACTS
[¶2.] On December 23, 2001, Washburn was driving the lead vehicle in a
caravan of approximately ten vehicles. The caravan traveled south on Highway 34
at approximately ten miles per hour, as it approached a bridge over the Cheyenne
River. A line of horseback riders was off to the left of the highway, traveling south,
and parallel to the highway. The caravan was traveling in support of the horseback
riders. The vehicles in the caravan were separated from each other by a distance of
approximately one vehicle length.
[¶3.] Edith and her husband, Joseph, were driving separate vehicles south
on Highway 34. Joseph was following Edith. Edith saw the caravan from a
distance and slowed as she approached it. She noticed the horseback riders to the
left of the highway. Edith followed the caravan for a time, then started to pass just
1. Washburn counterclaimed against Edith, alleging negligence and personal
injuries. The jury returned a general verdict denying Washburn's claim.
Washburn has not appealed that verdict.
#24551
before coming to the bridge. Prior to passing, Edith checked for oncoming traffic,
checked her mirrors, and used her turn signal to signal her pass. Edith's vehicle
was equipped with daytime running lights. The evidence is disputed as to whether
or not the drivers in the caravan had activated their emergency flashers. Edith
drove thirty to thirty-five miles per hour as she passed the caravan. She was about
to overtake the Washburn vehicle as it was nearing the south end of the bridge.
[¶4.] As she neared the south end of the bridge, Washburn wanted to turn
off the highway to wait for and meet the horseback riders. Washburn considered
turning right off the highway, but decided to turn left onto an approach. The
approach was lower than the level of the highway and was not visible from a
distance. The vehicles driven by Washburn and Edith collided as Washburn was
making the left turn. The evidence is disputed as to whether or not Washburn
signaled her left turn. The entire incident took place in a legal passing zone with a
sixty-five mile per hour speed limit. Visibility was good and there was no oncoming
traffic.
[¶5.] After the accident, Joseph transported Edith to an emergency room at
a Pierre hospital, where she was examined and had glass removed from an abrasion
on her arm. Thereafter, Edith was treated for other alleged injuries.
[¶6.] Harmons filed a negligence action for personal injuries against
Washburn. The action was tried to a jury over two days. Washburn denied her
negligence, asserted Edith's contributory negligence, and contested the nature and
extent of Harmons' injuries. After all the evidence had been presented, Harmons
moved for judgment as a matter of law on the issue of Washburn's negligence and
-2-
#24551
on the issue of Edith's contributory negligence. The trial court denied the motion.
The jury returned a general verdict for Washburn. Harmons then renewed their
motion for judgment as a matter of law and, alternatively, for a new trial. The trial
court also denied this motion. Harmons appeal.
ISSUES
[¶7.] Harmons raise the following issues on appeal:
Whether the trial court abused its discretion when it
denied Harmons' motion for judgment as a matter of law.
Whether the trial court abused its discretion when it
denied Harmons' renewed motion for judgment as a
matter of law and, alternatively, for a new trial.
STANDARD OF REVIEW
[¶8.] A trial court's ruling on a motion for directed verdict is reviewed under
the abuse of discretion standard. Christenson v. Bergeson, 2004 SD 113, ¶ 10, 688
NW2d 421, 425 (citing Gilkyson v. Wheelchair Express Inc., 1998 SD 45, ¶ 7, 579
NW2d 1, 3 (additional citations omitted)). "An abuse of discretion occurs when 'no
judicial mind, in view of the law and the circumstances of the particular case, could
reasonably have reached such a conclusion.'" Id. (quoting Bridge v. Karl's Inc., 538
NW2d 521, 523 (SD 1995) (citations omitted). This Court's task on appeal, "is to
review the record and ascertain whether there is any substantial evidence to allow
reasonable minds to differ." Id. ¶ 11 (citations omitted). "If sufficient evidence
exists so that reasonable minds could differ, a directed verdict is not appropriate."
Id. ¶ 22 (citation omitted).
[¶9.] Likewise, the trial court's ruling on a motion for judgment
notwithstanding the verdict is reviewed under the abuse of discretion standard. Id.
-3-
#24551
¶ 12 (citing Welch v. Haase, 2003 SD 141, ¶ 19, 672 NW2d 689, 696 (citation
omitted)). The testimony and evidence are reviewed "in a light most favorable to
the verdict or to the nonmoving party." Id. (quoting Sabag v. Continental South
Dakota, 374 NW2d 349, 355 (SD 1985) (citing Ziebarth v. Schnieders, 342 NW2d
234, 236 (SD 1984))). "[W]ithout weighing the evidence [this Court] must decide if
there is evidence which would have supported or did support a verdict." Id. (quoting
Sabag, 374 NW2d at 355 (citing Corey v. Kocer, 86 SD 221, 226-27, 193 NW2d 589,
593 (1972))).
[¶10.] In 2006 SDCL 15-6-50(a) and (b) were amended. The substantial
changes made by this amendment include referring to a motion for directed verdict
as a motion for judgment as a matter of law and denominating a motion for
judgment notwithstanding the verdict as a renewed motion for judgment as a
matter of law. These amendments, however, do not change our standard of review –
which remains abuse of discretion. The abuse of discretion standard is also utilized
"when reviewing a trial court's denial of a motion for a new trial." Christenson,
2004 SD 113, ¶ 13, 688 NW2d at 426 (citing Olson v. Judd, 534 NW2d 850, 852 (SD
1995) (citing Treib v. Kern, 513 NW2d 908, 911 (SD 1994))).
DECISION
ISSUE ONE
[¶11.] Whether the trial court abused its discretion when it denied
Harmons' motion for judgment as a matter of law.
[¶12.] At the close of the evidence Harmons moved for a judgment as a
matter of law on the issue of Washburn's negligence and on the issue of Edith's
contributory negligence. SDCL 15-6-50(a)(1) provides:
-4-
#24551
If during a trial by jury a party has been fully heard on an
issue and there is no legally sufficient evidentiary basis
for a reasonable jury to find for that party on that issue,
the court may determine the issue against that party and
may grant a motion for judgment as a matter of law
against that party with respect to a claim or defense that
cannot under the controlling law be maintained or
defeated without a favorable finding on that issue.
"Only in exceptional cases may the verdict be directed in favor of the party having
the burden of proof." Christenson, 2004 SD 113, ¶ 24, 688 NW2d at 428.
"[W]hen the evidence on behalf of the moving party is
clear and full, credible and not contradicted, and is so
plain and complete that reasonable minds could come to
no other conclusion[,]" a motion for directed verdict may
be granted. Id. (quoting Langdon v. Reuppel, 81 SD 289,
291, 134 NW2d 293, 294 (1965). But if, when viewed in a
light most favorable to the nonmoving party, there is any
substantial evidence to sustain the cause of action or
defense, it must be submitted to the finder of fact. SDCL
15-6-50(a). Denke v. Mamola, 437 NW2d 205, 207 (SD
1989).
Id.
[¶13.] Harmons argue that Washburn's driving that day violated at least
five different South Dakota statutes and that each such violation "constitutes
negligence per se." Alley v. Siepman, 214 NW2d 7, 9 (SD 1974). Concerning the
first alleged violation, SDCL 32-26-18.1 provides in pertinent part:
No person may turn a vehicle at an intersection unless
the vehicle is in proper position upon the roadway as
required by §§ 32-26-17 and 32-26-18. A signal of
intention to turn right or left when required shall be given
continuously during not less than the last one hundred
feet traveled by the vehicle before turning. . . .
The evidence on this point consisted of the testimony of Harmons, Washburn, and
Washburn's daughter, Amanda Washburn. Both Harmons testified that
-5-
#24551
Washburn did not use her turn signal. Viewing the evidence in the light most
favorable to Washburn, Washburn's daughter testified that her mother signaled the
left turn fifteen feet before turning; Washburn testified, in effect, that she signaled
the turn at most forty-four feet prior to the turn. 2
[¶14.] Based on the testimony it is undisputed that Washburn violated the
statute and was negligent per se. Therefore, we do not address Harmons' argument
regarding the other five statutes violated. It was error for the trial court not to
grant a judgment as a matter of law on the issue of Washburn's negligence.
[¶15.] Harmons also sought a judgment as a matter of law that Edith was not
contributorily negligent.
Contributory negligence is a 'breach of duty which the law
imposes upon persons to protect themselves from injury,
and which, concurring and cooperating with actionable
negligence for which defendant is responsible, contributes
to the injury complained of as a proximate cause.'
(quoting Boomsma v. Dakota, Minnesota, & Eastern
Railroad Corp., 2002 SD 106, ¶ 34, 651 NW2d 238, 245-46
(additional citations omitted)). Where plaintiff's
contributory negligence is more than slight compared to
defendant's negligence, plaintiff is barred from recovery.
SDCL 20-9-2. As long as there is competent evidence to
support the theory of contributory negligence, it is proper
for the issue to go to the jury. Id. (citing Parker v. Casa
Del Rey, 2002 SD 29, ¶ 5, 641 NW2d 112, 115).
Johnson v. Armfield, 2003 SD 134, ¶ 10, 672 NW2d 478, 481.
[¶16.] Edith looked in her mirror and signaled before passing. Her car was
equipped with daytime running lights. The day was clear. There was no oncoming
2. Washburn testified that she was driving ten miles per hour and signaled two
or three seconds prior to the turn. The jury was provided with a
mathematical formula to make the computation for distance.
-6-
#24551
traffic. She was in a legal passing zone and passed at thirty to thirty-five miles per
hour in a sixty-five mile per hour zone. When Washburn made the left turn, Edith
was unable to avoid the accident.
[¶17.] Washburn argues that Edith ought not to have passed on a bridge
because the guardrails on the left would prevent her from leaving the highway in
that direction to avoid an accident. This is tantamount to arguing that no one
should ever pass on this bridge because of the guardrail on the left, which
completely ignores the fact that it is a legal passing zone. Furthermore, "a motorist
has the right to assume that other drivers will obey the rules of the road." Treib,
513 NW2d at 913 (citing Nelson v. McClard, 357 NW2d 517 (SD 1984)).
[¶18.] Washburn also argues that Edith was driving too fast. There is no
evidence to support this assertion. All the evidence is that Edith was driving thirty
to thirty-five miles per hour in a sixty-five mile per hour zone to pass Washburn's
vehicle, which was traveling ten miles per hour.
[¶19.] Under these circumstances, passing a caravan, as opposed to one
vehicle, is not evidence of contributory negligence. There was no oncoming traffic.
Edith successfully passed all the cars in the caravan except the lead vehicle.
Whether she was passing a fifty-car caravan or just one vehicle, the accident arose
from the manner in which two vehicles were driven – Washburn's vehicle and
Edith's vehicle.
[¶20.] Washburn implies that the caravan and the horseback riders to the
left, and by then to the rear, should have caused Edith to reasonably anticipate
Washburn's turn. Washburn offers no further explanation as to why Edith should
-7-
#24551
have anticipated the turn, much less one without a proper signal. Again, Edith had
the right to assume Washburn would follow the rules of the road. Id.
[¶21.] There was no legally sufficient evidentiary basis for a reasonable jury
to find Edith contributorily negligent. The trial court erred by not granting the
judgment as a matter of law on this issue.
ISSUE TWO
[¶22.] Whether the trial court abused its discretion when it denied
Harmons' renewed motion for judgment as a matter of law and,
alternatively, for a new trial.
[¶23.] After the jury returned its general verdict in favor of Washburn,
Harmons renewed their motion for judgment as a matter of law. SDCL 15-6-50(b)
provides in pertinent part:
If, for any reason, the court does not grant a motion for
judgment as a matter of law made at the close of all the
evidence, the court is considered to have submitted the
action to the jury subject to the court's later deciding the
legal questions raised by the motion. The movant may
renew its request for judgment as a matter of law by filing
a motion no later than ten days after notice of entry of
judgment—and may alternatively request a new trial. . . .
[¶24.] Our standard of review is abuse of discretion. Christenson, 2004 SD
113, ¶ 12, 688 NW2d at 425. In reviewing the renewed motion for judgment as a
matter of law, we, again, "review the testimony and evidence in a light most
favorable to the verdict or to the nonmoving party." Id. We must determine,
without weighing the evidence, whether there is evidence which would or did
support the jury's verdict. Id.
[¶25.] As previously discussed, Washburn was negligent as a matter of
law and Edith was not contributorily negligent as a matter of law. However,
-8-
#24551
we must also review the testimony and evidence regarding Harmons'
damages. The jury's general verdict in favor of Washburn would be
supported by the evidence if the jury was able to find that Harmons had not
incurred damages as a proximate result of the accident.
[¶26.] Edith's primary claim of damages was an injury to her lower
back. Considerable evidence was presented to the jury regarding the nature
and extent of the injury and the need for treatment. Washburn strongly
disputed this evidence. However, Edith's damage claim also included the cost
of an examination and the removal of glass from an abrasion on her arm at a
Pierre hospital emergency room immediately after the accident. This
evidence is undisputed. Consequently, Harmons suffered damages as a
proximate result of the accident.
[¶27.] The evidence does not support the jury's verdict. The trial court
abused its discretion in not granting the renewed motion for judgment as a
matter of law on liability and granting a new trial on damages.
[¶28.] We reverse and remand.
[¶29.] KONENKAMP and MEIERHENRY, Justices, concur.
[¶30.] GILBERTSON, Chief Justice, and PORTRA, Circuit Judge,
dissent.
[¶31.] ROEHR, Circuit Judge, for SABERS, Justice, disqualified.
[¶32.] PORTRA, Circuit Judge for ZINTER, Justice, disqualified.
-9-
#24551
PORTRA, Circuit Judge (dissenting)
[¶33.] I respectfully dissent. The majority substitutes its judgment for that of
the trial court and the jury, and in the process, undermines the validity of the jury
system.
[¶34.] The majority acknowledges that the proper standard of review is
whether the trial court abused its discretion. This Court previously explained that
standard as follows:
Our standard of review of the circuit court's denial of a
directed verdict and of the jury's determination in favor of
[the defendant] is well established. We must examine the
evidence in the light most favorable to the non-moving
party and give him the benefit of all reasonable
inferences. Robinson v. Mudlin, 273 NW2d 753, 755 (SD
1979). The moving party is entitled to evidentiary
consideration only where its evidence is uncontradicted or
tends to amplify, clarify or explain the evidence in support
of the verdict of the jury for the prevailing party. Nugent
v. Quam, 82 SD 583, 152 NW2d 371, 374 (1967).
In such a context, it becomes our task to review the record
and determine whether there is any substantial evidence
to allow reasonable minds to differ. Haggar v. Olfert, 387
NW2d 45 (SD 1985). This Court does not weigh the
evidence and substitute its judgment for that of the jury.
Robinson, 273 NW2d at 755; Berg v. Sukup Mfg., 355
NW2d 833, 835 (SD 1984). The decision of the jury is
likely to be upheld as questions of negligence . . . are for
the determination of the jury 'in all except the rarest of
instances.' Stoltz v. Stonecypher, 336 NW2d 654, 657 (SD
1983).
Whether the jury's verdict should result in a new trial
being granted is left to the sound discretion of the trial
court. We will not overturn that ruling without a clear
showing of an abuse of discretion. Dartt v. Berghorst, 484
NW2d 891, 894 (SD 1992) [95 SDO 579]. An abuse of
discretion occurs only if no "'judicial mind, in view of the
law and the circumstances of the particular case, could
-10-
#24551
reasonably have reached such a conclusion.'" Id. (quoting
Jensen v. Weyrens, 474 NW2d 261, 263 (SD 1991)).
Bridge v. Karls, Inc., 538 NW2d 521, 523 (SD 1995). This standard of review is the
most deferential applied by this Court. Yet according to the majority, the
experienced trial court and the twelve men and women of the jury selected by the
parties apparently came to a conclusion, by unanimous decision, that no reasonable
person could come to.
[¶35.] It is without question that Washburn was negligent. However, that is
not the end of our inquiry. If the jury found that Harmon was contributorily
negligent, more than slight, then she is precluded from recovery. Although the
violation of a statute may be negligence per se, one does not have to violate a
statute in order to be negligent.
Negligence is the failure to use reasonable care. It is the
doing of something which a reasonable person would not
do, or the failure to do something which a reasonable
person would do, under facts similar to those shown by
the evidence. The law does not say how a reasonable
person would act under facts similar to those shown by
evidence. That is for you to decide.
Jury Instruction No. 5; SDPJI 10-01. This Court has previously endorsed the giving
of this instruction. Kappenman v. Stroh, 2005 SD 96, ¶ 15, 704 NW2d 36, 41.
[¶36.] When the evidence produced at trial is examined, there are sufficient
facts to support the jury's verdict. Harmon testified that she saw a line of
approximately ten cars pulling onto the highway in front of her and some people
riding horses moving in the same direction as the vehicles. She attempted to pass
this line of cars as she entered onto the Cheyenne River Bridge. She acknowledged
that she was not certain about what the vehicles were going to do, and she was
-11-
#24551
aware from her experience as a rancher that sometimes vehicles turn off the
highway onto approaches that are difficult to see. Harmon also admitted that she
did not do anything such as honking her horn or flashing her lights to warn the line
of vehicles that she was passing.
[¶37.] The majority also asserts that it is undisputed that Harmon was
traveling between thirty to thirty-five miles per hour as she passed the caravan.
However, the nature of the accident tends to bring that into question. Harmon's
vehicle hit Washburn's vehicle with sufficient speed that Harmon's vehicle flipped
over Washburn's vehicle. The jury was instructed that they "have a right to
consider the common knowledge possessed by all of you, together with the ordinary
experiences and observations in your daily affairs of life." Jury Instruction No. 28;
SDPJI 1-04; Gross v. Connecticut Mutual Life Ins. Co., 361 NW2d 259, 269-70 (SD
1985).
[¶38.] It seems highly unlikely that a vehicle traveling thirty-five miles per
hour and striking another vehicle in a t-bone style accident would flip over the
vehicle that was struck in the manner testified to by Harmon. It is quite possible
that the jury rejected Harmon's testimony as to speed because the physical evidence
of the accident was inconsistent with her version of the events, even without
contradictory testimony.
[¶39.] It is also possible that the jury did not believe Harmon's testimony
regarding damages. Harmon denied having similar back problems prior to the
accident; however, her testimony was contradicted by her medical records and the
testimony of Dr. Nelson. The jury was instructed, "If you believe that any witness
-12-
#24551
testifying in this case has knowingly sworn falsely to any material matter in this
case, then you may reject all of the testimony of the witness." Jury Instruction No.
26; SDPJI 2-04; State v. Rosales, 302 NW2d 804, 806 (SD 1981). If the jury found
that Harmon was lying and rejected all of her testimony, then it is not surprising
that they found for Washburn. It is impossible to determine whether that is what
happened in this case, but that is precisely the problem with attempting to invade
the jury room.
[¶40.] It is prudent to compare the facts of this case with those in Bridge. In
Bridge, the defendant admitted liability for any of the plaintiff's injuries
proximately caused by an automobile accident. Bridge, 538 NW2d at 523. The jury
returned a verdict for the defendant, and the plaintiff moved for judgment
notwithstanding the verdict or a new trial. Id. This Court affirmed. Id. at 526. In
doing so, the Court wrote:
Factually this case is a close call. But the rules for new
trials and judgments notwithstanding the verdict clearly
apply to resolve close calls. See Olson v. Judd, 534 NW2d
850, 852 (SD 1995). If this jury's verdict can be explained
with reference to the evidence, rather than by juror
passion, prejudice or mistake of law, then this verdict
must be affirmed. Miller, 520 NW2d at 272. Viewing the
evidence in a light most favorable to the verdict, we
cannot say the jury's award was a result of passion or
prejudice or that the jury was palpably mistaken on the
rules of law by which damages in this case are to be
measured.
Id. at 525.
[¶41.] This Court should follow that precedent in this case. As in Bridge,
there has been no finding of passion, prejudice, or mistake of law. In fact, Harmon
does not even argue that the jury was instructed improperly on the law. Simply
-13-
#24551
put, Harmon does not agree with the jury's decision. However, it does not matter if
she agrees with the jury's decision, nor even if we agree with the jury's decision. It
only matters whether the decision can be supported by a review of the evidence
most favorable to the verdict, and as discussed above, it can.
[¶42.] This Court's previous decision in Treib v. Kern, 513 NW2d 908 (1994)
is also particularly instructive. That case also involved a car accident and the
accompanying issues of negligence and contributory negligence, and that jury also
found for the defendant. Id. at 910. The plaintiff appealed the trial court's denial of
his motions for directed verdict and judgment notwithstanding the verdict, and this
Court affirmed. Id.
[¶43.] As in this case, the defendant in Treib violated a statute and was
negligent per se. Id. at 913. Additionally, the plaintiff was not found to have
violated a particular statute. However, the trial court found, and this Court agreed,
that the plaintiff should have realized that he was within the zone of danger and
either honked to alert the defendant of his presence or taken evasive action. Id.
This Court went on to say:
It is for the jury to decide whether [plaintiff] was guilty of
contributory negligence for failure to use reasonable care
in discovering the danger and avoiding a collision.
Winburn v. Vander Vorst, 74 SD 531, 55 NW2d 609
(1952). A determination supported by evidence will not be
disturbed even though there are facts which would
warrant a different conclusion. Rumbolz v. Wipf, 82 SD
327, 145 NW2d 520 (1966).
After viewing the evidence in a light most favorable to
[defendant] and giving him the benefit of all reasonable
inferences, we conclude that reasonable minds could differ
as to [plaintiff's] contributory negligence. "[I]t is not the
function of this court on review to weigh conflicting
-14-
#24551
evidence or to pass upon credibility of witnesses; that task
lies within the province of the jury." Sharkey v.
Washington Nat. Ins. Co., 373 NW2d 421, 427 (SD 1985)
(citing Lukens v. Zavadil, 281 NW2d 78 (SD 1979); Kamp
Dakota, Inc. v. Salem Lumber Co., Inc., 89 SD 696, 237
NW2d 180 (1975)). Therefore, the trial court did not abuse
its discretion in denying the motions for directed verdict
and judgment notwithstanding the verdict.
Id. (footnote omitted).
[¶44.] Just as in Treib, Harmon failed to warn the vehicles that she was
passing by honking her horn and/or flashing her lights. By attempting to pass ten
cars on a bridge she also placed herself in a situation where she would not be able to
take any evasive action in the event of an emergency, even though it was apparent
that the ten cars were not traveling in a normal fashion and extra caution may be
required. It was up to the jury to decide if Harmon's actions constituted negligence
under the unique circumstances of this case, and if so, whether her negligence was
more than slight in comparison to that of Washburn.
[¶45.] In summary, there was sufficient evidence presented to create a
question for the jury. It answered in favor of Washburn. We should not interfere
with its verdict by directing a verdict for Harmon.
[¶46.] GILBERTSON, Chief Justice, joins this dissent.
-15-