Klutman v. Sioux Falls Storm

#24835-a-SLZ

2009 SD 55

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

JAMES KLUTMAN, ROSE KLUTMAN
and GAYLEN KLUTMAN, Plaintiffs and Appellees,

v.

SIOUX FALLS STORM, a/k/a K.T., LLC,
SIOUX FALLS ARENA, managed by SMG, Defendants and Appellants.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

HONORABLE KATHLEEN K. CALDWELL
Judge

* * * *
MICHAEL W. STRAIN of
Morman Law Firm
Sturgis, South Dakota
and
JACK DER HAGOPIAN of
DerHagopian Law Office
Sioux Falls, South Dakota Attorneys for plaintiffs
and appellees.
JOEL D. VOSS
JAMES W. REDMOND of
Heidman Law Firm, LLP
Sioux City, Iowa Attorneys for defendants
and appellants.

* * * *

ARGUED MARCH 25, 2009

OPINION FILED 07/08/09
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ZINTER, Justice

[¶1.] Gaylen Klutman suffered a knee injury during a promotional event for

the Sioux Falls Storm, an indoor football team. He alleged that his injury was

caused by negligently installed, inspected and maintained synthetic turf. A jury

awarded $500,000 in damages and the Storm appeals. We affirm.

Facts and Procedural History

[¶2.] On February 25, 2002, the Storm hosted a promotional season kick-off

event. The event included an autograph session, youth clinic and a celebrity

football game. Gaylen, age 17, attended with his father and younger brother. At

some point, children were called to the field and Gaylen’s brother went onto the

field. Gaylen asked his father if he could participate, and because it appeared there

were other children around Gaylen’s age, his father gave him permission. The

participants did not sign waivers and no warnings were provided concerning the

condition of the field.

[¶3.] The field was covered with synthetic turf that was installed in five-

yard increments from rolls weighing approximately five-hundred pounds. The

pieces were butted together and secured by a Velcro fastening system. It was not

uncommon for there to be gaps between the pieces requiring adjustment. At the

time of the incident, there was no established protocol for ensuring the adequacy of

the turf installation; although team officials indicated they noticed nothing out of

the ordinary with the turf that day.

[¶4.] After being called onto the field, the children were divided into teams

and began playing an informal game of touch football. The children were not

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supervised. According to Gaylen, after only a few plays in the game, he received a

short pass and began to run straight ahead when he came to a sudden halt and fell

backwards. There were no other players in the vicinity, and he did not fall as the

result of contact with another player. He testified he blacked out and when he

regained awareness he was lying on his back with his foot caught under the turf.

Gaylen’s younger brother was the first person to come to his aid, and they both

testified that Gaylen’s foot was caught under the turf. His younger brother was not

able to remove Gaylen’s foot, and it was unclear who actually removed his foot from

under the turf. Gaylen received immediate medical assistance, his knee was iced,

and he was taken to the hospital by his father.

[¶5.] Gaylen’s knee was severely damaged, and he eventually underwent

evaluation and surgery at the Mayo Clinic. He was diagnosed with a “complete

disruption of the anterior cruciate ligament, lateral or fibular collateral ligament

and posterolateral structures, with a partial tear of the posterior cruciate ligament

and a complete pereneal nerve palsy.” The damage to the pereneal nerve resulted

in a “foot drop,” and Gaylen was unable to lift his foot on his own. He continued to

wear a brace for the foot drop, an injury that was considered permanent with

muscle function not expected to return. Although Gaylen attempted a number of

different activities and jobs, he alleged that he had been largely unsuccessful as the

result of his injury.

[¶6.] The Storm did not dispute the injury or that it occurred on the football

field that day. Rather, it maintained that the injury was not caused by any

negligence relating to the installation, maintenance or condition of the turf. It

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argued that the injury was incurred during the course of normal football play.

Officials from the Storm testified that gaps in the field were expected, but they

noticed nothing unusual about the turf during the event. A turf expert testified

that small gaps in the turf were normal, and that if installed properly, the injury

Gaylen described would not have occurred. Essentially, the Storm disputed

Gaylen’s assertion that he caught his foot on the turf.

[¶7.] In support of its position, the Storm called Collin Steen, the team

president. Steen testified that from 2001 until the time of trial, he had never heard

of an injury where someone claimed to have pushed their foot under the turf. He

did, however, concede on cross-examination that the Storm had since taped the

seams in the turf beginning in the 2003 season. The evidence of subsequent taping

was elicited by Gaylen after the court found that the Storm had opened the door to

the admission of subsequent remedial measures. Concerning that taping, the

following exchange took place:

Counsel: The line markers that are Velcroed, the tape
goes over the seam, does it not?
Steen: That’s correct.
Counsel: It covers the seam?
Steen: Correct.
Counsel: So when the Velcro pulls apart – you have
testified that the Velcro pulls apart sometimes.
Steen: Yes, it does.
Counsel: That would cover that; is that correct?
Steen: That’s correct.
Counsel: If it were lifted up or up a little bit, the tape
would hold it down, would it not?
Steen: Yes, it would.

Although Steen only testified about post-incident taping, a trainer for the team

acknowledged that tape had also been used on the seams prior to the date of the

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injury: the only difference being the tape apparently changed colors from green to

white.

[¶8.] This taping was described by the Storm as being as much about

aesthetics, if not more, than about safety. On the other hand, evidence was

introduced that in an attempt to obtain new turf, Steen appeared before the city

council and indicated the team was seeking new turf in part because the old turf

presented a danger to the players. At the time of trial, this same turf was still

being used by the Storm.

[¶9.] Following the jury’s general verdict in favor of Gaylen, the Storm

moved for a new trial asserting a number of trial errors and newly discovered

evidence relating to the extent of Gaylen’s disability. The trial court did not

expressly rule on the motion: it was denied by operation of law pursuant to SDCL

15-6-59(b). The Storm appeals raising six issues.

Decision

[¶10.] 1. Whether the trial court abused its discretion in granting
a motion to amend the complaint to add Gaylen’s parents
as additional plaintiffs.

[¶11.] An analysis of this question is complicated by the fact that the Storm

did not make a clear record facilitating appellate review. The record that does exist

reflects that Gaylen was seventeen years of age at the time of the injury, and the

original complaint, filed on February 24, 2004, named only Gaylen as the plaintiff.

On December 5, 2005, an amended complaint was filed based on a stipulation of the

parties and again named Gaylen as the only plaintiff. Both complaints, however,

alleged damages that put the Storm on notice the suit sought all past, present and

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future medical expenses incurred from the time of injury, which would have

included those incurred during Gaylen’s minority. Both complaints alleged:

Plaintiff, Gaylen Klutman has suffered serious and permanent
personal injuries (as a result of the Defendants’ actions) and
other serious injuries all of which caused him to experience
great pain and suffering (past, present and future), to suffer
mental anguish, to sustain a loss of earning capacity, to sustain
a loss of wages and further causing this plaintiff
embarrassment, inconvenience and emotional distress, loss of
enjoyment of life, to incur expenses for medical care and
treatment (past, present and future) all to his general and
special damage.

[¶12.] Furthermore, although the Storm now alleges trial error in allowing

amendment of the complaint, the first record of an objection does not appear until

after the amendment. That record was made during the settlement of jury

instructions when counsel for the Storm stated “[w]e also object to the jury

instructions insofar as they deal with the medical bills which were incurred by

Gaylen prior to his turning age 18, since that is a claim that belongs to the parents.

We made a record about that earlier.” 1 In subsequently denying an apparently

related motion for directed verdict, the court stated: “As to the claim by a minor,

the plaintiffs at the beginning of the case amended their complaint to include the

parents, and I allowed that, so that will be my ruling.” 2 Thus, from what we can

tell from the record, it appears that the amendment was granted before trial

1. The Storm has not provided this Court with any such record and counsel
conceded during oral argument that a discussion on this issue does not
appear in the record until this point.

2. That ruling was never reduced to writing, and there is no discussion on the
merits in the record.

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following an oral objection by the Storm, an oral motion to amend by Gaylen, and an

oral ruling by the trial court. But again, there is no record of the arguments

supporting and opposing the motion to amend or the court’s reasoning for its

decision.

[¶13.] Notwithstanding the Storm’s failure to present a record facilitating

review of this issue, the Storm argues that the addition of the parents to the

complaint prejudiced their defense by allowing the parents to assert claims for

medical expenses and gratuitous services rendered to Gaylen, which by the time of

trial were barred under the statute of limitations. Gaylen responds that the

amendment did not prejudice the Storm because it was on notice of the claimed

damages from the first two complaints. Gaylen also argues that the amendment

did not permit a barred claim because the amendment related back to the time of

the filing of the original complaint. “The standard of review on a motion granting

an amendment of a pleading is clear abuse of discretion resulting in prejudice to the

non-moving party.” Burhenn v. Dennis Supply Co., 2004 SD 91, ¶20, 685 NW2d

778, 783.

[¶14.] “A trial court may permit the amendment of pleadings before, during,

and after trial without the adverse party’s consent.” Id. (quoting Dakota Cheese,

Inc. v. Ford, 1999 SD 147, ¶24, 603 NW2d 73, 78). “SDCL 15-6-15(a) provides in

relevant part that leave to amend shall be freely given when justice so requires.”

Prairie Lakes Health Care Sys., Inc. v. Wookey, 1998 SD 99, ¶28, 583 NW2d 405,

417.

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[¶15.] The rule of relation back is governed by SDCL 15-6-15(c), which allows

relation back when the claim asserted in the amended pleading arose out of the

conduct, transaction or occurrence set forth in the original complaint.

Whenever the claim or defense asserted in the amended
pleading arose out of the conduct, transaction, or occurrence set
forth or attempted to be set forth in the original pleading, the
amendment relates back to the date of the original pleading. An
amendment changing the party against whom a claim is
asserted 3 relates back if the foregoing provision is satisfied and,
within the period provided by law for commencing the action
against him, the party to be brought in by amendment:

(1) Has received such notice of the institution of the action that
he will not be prejudiced in maintaining his defense on the
merits; and

(2) Knew or should have known that, but for a mistake
concerning the identity of the proper party, the action would
have been brought against him.

SDCL 15-6-15(c). This Court has recognized that as a general proposition, “an

amended pleading naming a new party in a lawsuit does not relate back under Rule

15(c).” Hedel-Ostrowski v. City of Spearfish, 2004 SD 55, ¶8, 679 NW2d 491, 495.

“When facts in an amendment state a different cause of action from the original

claim, the statute of limitations runs to the date of the amendment.” Lewis v.

Moorhead, 522 NW2d 1, 6 (SD 1994) (citation omitted). The Storm further points

3. By its terms, this second sentence of SDCL 15-6-15(c) applies to “[a]n
amendment changing the party against whom a claim is asserted,” which in
the usual case is a defendant. “Though Rule 15(c) as it reads applies to
amendment affecting defendants, it has been held that it is to be applied by
analogy to amendments changing plaintiffs.” Bd. of Water & Sewer Comm’rs
of the City of Mobile v. McDonald, 322 So2d 717, 720 (AlaCivApp 1975)
(citing 6 Charles A. Wright & Arthur R. Miller, Federal Practice and
Procedure § 1501).

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out that “[w]hen a child is injured by another’s negligence two causes of action

arise; one in favor of the child for the injury as such, the other in favor of the parent

generally for the loss of services during minority, and the expenses caused by the

injury.” Doyen v. Lamb, 75 SD 77, 82, 59 NW2d 550, 552 (1953) (citation omitted).

Therefore, the Storm contends that by allowing the addition of Gaylen’s parents as

party plaintiffs, Gaylen’s parents were allowed to bring a new cause of action for

their medical expenses and gratuitous services in the care of their son, a cause of

action that had not been pleaded prior to the expiration of the statute of limitations.

[¶16.] This case is, however, remarkably similar to City of Miami v. Cisneros,

662 So2d 1272 (FlaDistCtApp 1995). In that case, an eleven-year-old boy was

injured during a football game. On the morning of trial, the parents moved to

amend the complaint to add themselves as parties for the purpose of claiming their

son’s medical expenses. The trial court granted the motion. On appeal, the court

held that the trial court properly permitted the amendment when the sole purpose

of the amendment was to claim medical expenses incurred and the defendant was

aware of those expenses for a significant period of time. The court observed:

“Under the ‘relation-back’ approach, for limitations considerations, the addition of a

party is allowed if it can be said that the new and former parties have an identity of

interest so as to not prejudice the opponent by the addition.” Id. at 1274 (citing R.A.

Jones & Sons, Inc. v. Holman, 470 So2d 60 (FlaDistCtApp 1985), review dismissed,

482 So2d 348 (Fla 1986); Williams v. United States, 405 F2d 234 (5thCir 1968)).

See also Rockdale Health Sys., Inc. v. Holder, 640 SE2d 52, 54 (GaCtApp 2006)

(concluding: “Inasmuch as there is a direct connection between the old and new

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parties, the complaint, as amended, related back to the original complaint.”); Ron’s

Quality Towing, Inc. v. Se. Bank of Fla., 765 So2d 134, 136 (FlaDistCtApp 2000)

(concluding: “Addition of a new party plaintiff should be permitted if the new and

former parties have an identity of interest so as not to prejudice the adverse party

by the addition.”); Roger Dean Chevrolet, Inc. v. Lashley, 580 So2d 171, 172

(FlaDistCtApp 1991) (concluding: “[A]n amendment adding a party plaintiff in a

case which does not substantially change a cause of action may be made even after

the statute of limitations has run.”).

[¶17.] Although the Storm maintains it was prejudiced by the late

amendment, a review of the record reveals that the Storm could not claim surprise.

It could not claim surprise because the first two complaints explicitly sought all

past, present and future damages, including related medical expenses. It appears

that the omission of the parents as a technical requirement for asserting the pre-

eighteen medical expenses was an oversight. Concerning the gratuitous services,

Gaylen’s mother testified she assisted her son with physical therapy and cared for

him following his injury. However, Gaylen did not quantify the value of those

services in testimony or closing arguments, and the jury was not asked to award a

specific dollar amount. 4 Further, there was no special verdict or prejudgment

4. The Storm relies on deposition and interrogatory testimony in support of its
claim that damages for gratuitous services rendered by family members was
not timely disclosed. That claim is not, however, referenced to the record.
Furthermore, that evidence was not made a part of the settled record. It
appears for the first time in the appendix. The testimony includes the
deposition of Rose Klutman, Gaylen’s mother, which was mentioned in the
briefs and during oral argument as demonstrating a lack of notice of the
(continued . . .)

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interest calculation form reflecting that the jury included an award for gratuitous

services. Given this record, the Storm has failed to establish any reasonable

likelihood that an award was made for such services. Ultimately, given the lack of

a record concerning the amendment, the identity of interests of Gaylen and his

parents, and the failure to establish prejudice, the trial court did not abuse its

discretion in allowing the amendment.

[¶18.] 2. Whether the trial court abused its discretion in limiting
the expert testimony of Edward Milner.

[¶19.] The Storm sought to introduce expert testimony from Edward Milner,

a chemical engineer, relating to the installation, inspection and safety of the

synthetic turf. Additionally, in his report, Milner offered an opinion regarding the

cause of Gaylen’s anatomical injury. He opined “Klutman’s injury is typical of a

twisting action rather than a tripping one. The knee ligaments were damaged in

the course of being twisted.” Milner indicated that the basis of his opinion was

Gaylen’s comments after the injury and his medical records, which Milner alleged

corroborated that the injuries were caused by a “twisting fall” rather than a defect

in the turf.

[¶20.] Gaylen filed a motion in limine to preclude Milner from opining on the

causation of the injury. Gaylen conceded Milner was an expert on synthetic turf,

________________________
(. . . continued)
gratuitous services. SDCL 15-26A-47 requires that: “The original pleadings,
papers, offered exhibits, and the transcript of the proceedings, if any, shall
constitute the record on appeal in all cases.” Because this evidence is not
part of the record, the testimony is not considered by the Court.

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but asserted that Milner had no training, education or experience to offer his

opinion on the medical causation of the injury. In determining Milner’s

qualifications to offer causation testimony, the trial court observed that while

Milner had extensive experience in the area of synthetic turf and sports safety, he

did not have any formal medical training. Additionally, he had no training on the

review of medical records allowing him to render opinions from those records

concerning the causation of an injury. Nevertheless, the Storm maintained that

because Milner worked alongside biomechanicists and others involved in sports

injuries, and because he attended classes on biomechanics and sports injuries, he

was qualified to render a causation opinion. The trial court disagreed, precluding

Milner from testifying “as to medical causation of [Gaylen’s] injuries.” On appeal,

the Storm argues that the trial court “set the bar too high.” The Storm contends the

court applied too rigid of a standard in assessing Milner’s qualifications by

discounting his practical knowledge and experience and by focusing on his lack of

formal medical training. We disagree.

[¶21.] The admission of expert testimony is governed by SDCL 19-15-2 (Rule

702). This statute provides, “[i]f scientific, technical, or other specialized knowledge

will assist the trier of fact to understand the evidence or to determine a fact in

issue, a witness qualified as an expert by knowledge, skill, experience, training, or

education, may testify thereto in the form of an opinion or otherwise.” SDCL 19-15-

2 (Rule 702). Under this rule, “[a] trial court is responsible for deciding whether an

expert’s knowledge will ‘assist the trier of fact to understand the evidence or to

determine a fact in issue.” Burley v. Kytec Innovative Sports Equip., Inc., 2007 SD

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82, ¶16, 737 NW2d 397, 404 (quoting SDCL 19-15-2). “[T]hat responsibility

includes determining ‘whether a particular expert has sufficient specialized

knowledge 5 to assist jurors in deciding the specific issues in the case.’” Id. (quoting

Wheeling Pittsburgh Steel Corp. v. Beelman River Terminals, Inc., 254 F3d 706,

715 (8thCir 2001)). We review a trial court’s decision to admit or deny an expert’s

testimony under the abuse of discretion standard. Id. ¶12 (citation omitted).

[¶22.] Although we agree that the qualification of an expert witness is not

determined based solely on the attainment of specific titles or degrees, it is a factor.

In this case, Milner was a chemical engineer and the parties conceded his

credentials were impressive as they related to synthetic turf. However, these

credentials were not related to medical causation. Therefore, to qualify Milner, the

5. Although the parties have briefed and argued this issue as a Daubert
reliability question, we view the matter as controlled by another inquiry
under Rule 702: whether the witness was “qualified” to give an opinion on
the subject at issue. See SDCL 19-15-2 (Rule 702); Burley, 2007 SD 82, ¶¶
13-16, 737 NW2d at 402-04. This is one of three prerequisites to the
admission of expert testimony.

There are three basic prerequisites to the admissibility of
evidence from expert witnesses. First, evidence based on
scientific, technical, or other specialized knowledge must
be useful to the finder of fact in understanding the
evidence or in making factual determinations necessary to
decide the ultimate issue of fact. Second, the proposed
witness must be qualified to provide the finder of fact
with that assistance. Third, the proposed evidence must
be reliable or trustworthy in an evidentiary sense, so that,
if the finder of fact accepts it as true, it provides the
assistance the finder of fact requires.

Weinstein’s Federal Evidence, Testimony by Experts, § 702.02[3] (2nd ed
2008).

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Storm was obligated to make a showing of expertise, acquired in some other

manner, in rendering causation opinions based on the physical damage to the

structures within the knee or upon a review of a doctor’s medical records. The

Storm failed to make that showing. The Storm made no showing that Milner had

training in either interpreting medical records or basing an opinion on such records.

And although he may have worked closely with those who dealt with sports

injuries, the Storm’s failure to establish Milner’s expertise on medical causation

was highlighted by the testimony of Dr. Michael J. Stuart, Gaylen’s treating

orthopedic surgeon specializing in knee and sports medicine at the Mayo Clinic.

When Dr. Stuart was asked if he could tell from this injury how it happened, he

responded:

No; we can’t tell exactly how it happened. We know that there
w[ere] forces subjected to the knee which caused failure of
multiple ligaments. So it’s a very significant injury mechanism.
But exactly how it happened, typically, there is a deceleration or
slowing down component of it. Often there could be a tortional
or twisting mechanism. There could also be a hyperextension or
back-knee mechanism. With these types of injuries it’s often a
combination of all the above.

On this record, the trial court did not abuse its discretion in prohibiting Milner’s

proposed medical opinion regarding causation. 6

[¶23.] 3. Whether the trial court abused its discretion in refusing
a contributory negligence instruction.

6. Both parties rely on Milner’s deposition testimony in support of their
positions. Although they have included the testimony in their appendices,
the deposition is not a part of the settled record and we do not consider it.

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[¶24.] “Contributory negligence is negligence on the part of a

plaintiff which, when combined with the negligence of a defendant, contributes as a

legal cause in the bringing about of the injury to the plaintiff.” Steffen v. Schwan’s

Sales Enters., Inc., 2006 SD 41, ¶12, 713 NW2d 614, 619 (quoting S.D. Pattern Jury

Instruction 11-01). There must be competent evidence of contributory negligence

before the matter may be submitted to the jury. Id. ¶10. “The trial court is not

required to instruct on issues lacking support in the record.” Buxcel v. First Fid.

Bank, 1999 SD 126, ¶13, 601 NW2d 593, 596 (citation omitted). “We review a trial

court’s refusal of a proposed instruction under an abuse of discretion standard.”

Luke v. Deal, 2005 SD 6, ¶11, 692 NW2d 165, 168.

[¶25.] Although the trial court allowed an instruction on assumption of the

risk, it denied the Storm’s proposed instruction concerning contributory negligence.

The Storm objected to the failure to give that instruction stating:

And we also object to the failure to give a contributory
negligence instruction due in part because as a typical fall of
this nature take[s] place at any type of premises, whenever a
safe premises claim is made, the issue becomes: Was the
plaintiff keeping a proper lookout? It should be a fact issue for
the jury to determine whether the plaintiff was keeping a proper
lookout, particularly if you try to accept his version of the facts
that he had caught a pass and was running straight down the
field. If it was some type of a flap or fold or something in front
of him on the field, for a distance of I think he said five or even
ten yards, he should have seen something and stepped past it.
That’s the essence of our objections.

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On appeal, the Storm contends that a contributory negligence instruction was

required under the “open and obvious danger rule.” 7

[¶26.] The record, however, reflects that the Storm offered no evidence of an

open and obvious danger that Gaylen should have avoided. On the contrary, the

Storm’s trial theory was that there were no openings or gaps in the seams that

could have caused Gaylen’s injury. Further, there was no evidence that warnings

were given concerning the condition of the field. Therefore, there was no

evidentiary basis that Gaylen had, or reasonably should have had, an appreciation

for any open or obvious danger regarding the turf or that he was otherwise

contributorily negligent with respect to his injury. See Johnson v. Armfield, 2003

SD 134, ¶¶11-15, 672 NW2d 478, 481-82 (holding that the trial court erred in

allowing a contributory negligence instruction based on a “bare assertion” of alleged

negligence). We conclude that the trial court did not abuse its discretion in

declining to give a contributory negligence instruction.

[¶27.] 4. Whether the trial court abused its discretion in allowing
impeachment that included evidence of a subsequent
remedial measure.

[¶28.] Prior to trial, the court granted a motion in limine precluding mention

of subsequent remedial measures taken with regard to the turf. However, Collin

7. Concerning an open or obvious danger, the jury was instructed that:
In general, an owner or possessor of land is not liable to an invitee
for physical harm caused to them by an activity or condition on the
land whose danger is known or obvious to the invitee. However, if
the owner or possessor of land has reason to believe that the
condition will harm the invitee despite its obviousness, the owner
(continued . . .)

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Steen, the Storm president, testified on direct examination that the turf had been

used from 2001 until trial without anyone claiming to have been injured by

catching their foot under the turf. Based on this testimony, the court allowed

Gaylen to impeach Steen with the fact that after Gaylen’s injury, the Storm taped

the seams of the turf. The Storm contends that this evidence of seam taping was a

subsequent remedial measure not subject to admission by impeachment. “We

review a trial court’s evidentiary rulings under an abuse of discretion standard.”

Behrens v. Wedmore, 2005 SD 79, ¶63, 698 NW2d 555, 579.

[¶29.] “[T]he general rule is that subsequent remedial measures are not

admissible as evidence.” First Premier Bank v. Kolcraft Enters., Inc., 2004 SD 92,

¶46, 686 NW2d 430, 450 (overruled on other grounds). The rule is founded on

SDCL 19-12-9 (Rule 407), which provides:

When, after an event, measures are taken which, if taken
previously, would have made the event less likely to occur,
evidence of the subsequent measures is not admissible to prove
negligence or culpable conduct in connection with the event.
This section does not require the exclusion of evidence of
subsequent measures when offered for another purpose, such as
proving ownership, control, or feasibility of precautionary
measures, if controverted, or impeachment.

[¶30.] Although the Storm contends the trial court erred in admitting this

evidence under the impeachment exception, we conclude the evidence was

admissible because it did not involve a subsequent remedial measure. By its

________________________
(. . . continued)
or possessor has a duty to warn the invitee regarding the condition
or to take other reasonable steps to protect the invitee.

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language, SDCL 19-12-9 (Rule 407) only applies to remedial actions taken “after an

event;” hence the denomination as subsequent remedial measures. The rule “was

designed to ensure that the threat of legal liability would not discourage remedial

measures to improve products.” First Premier Bank, 2004 SD 92, ¶50, 686 NW2d at

451. Consequently, predetermined measures do not qualify as inadmissible

subsequent remedial measures under the rule:

The word “remedial” means “intended for a remedy or for the
removal or abatement of a disease or of an evil.” Webster’s
Third Int’l Dictionary 1920 (1993) (emphasis added). Thus, a
“measure” is “remedial” if it is intended to address the
occurrence of an event by making the event less likely to happen
in the future. Therefore, measures that are taken after an event
but that are predetermined before the event are not “remedial”
under [the rule], because they are not intended to address the
event.

Ranches v. City and County of Honolulu, 168 P3d 592, 597-98 (Haw 2007).

[¶31.] In this case, the cross-examination of Steen revealed that taping

occurred after the date of the injury. Norm Stone, however, a trainer with the

Storm, testified that although taping color changed from green to white after the

incident, taping of the seams was a practice that preceded the date of Gaylen’s

injury. 8 Because the record presented to this Court indicates that taping occurred

8. Although Stone may have been unsure of the color of tape, he testified that
the seams were taped prior to Gaylen’s injury:

Counsel: You actually saw them back in 2000, 2001, 2002, put
green tape over the seams; true?
Stone: I couldn’t testify to the exact color of the tape.
Counsel: Do you remember your deposition being given in this
matter?
Stone: I think I did say green in the depo.
(continued . . .)

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both prior to and after Gaylen’s injury, Steen’s cross-examination did not concern

the type of subsequent remedial measure prohibited by SDCL 19-12-9 (Rule 407).

We therefore affirm the trial court without considering the impeachment exception.

[¶32.] 5. Whether the trial court abused its discretion in denying
a motion for new trial based on newly discovered evidence.

[¶33.] The Storm filed a motion for new trial raising several issues that it

asserted compromised the verdict. On appeal, the Storm pursues the newly

discovered evidence issue, asserting that Gaylen concealed evidence of his physical

abilities, evidence that was inconsistent with what he claimed at trial. The Storm’s

appeal is based on its post-trial motion asserting that:

After the trial in this matter had been completed, [the Storm]
received information from the coach of the Sioux Falls
Lawdawgs, a semi-professional football team in South Dakota.
[Gaylen] had tried out, practiced and played with the Lawdawgs
in October and November 2007. This information was concealed
and never provided to the [Storm] through the discovery process
despite [Gaylen’s] duty to supplement interrogatories.

These assertions were supported by an: “Attached Affidavit and corresponding

Exhibits incorporated hereto as Exhibits 16, 16A, 16B, 16C, 16D and 16E.” The

“Affidavit in Support of Defendant’s Motion for New Trial” was made by the Storm’s

________________________
(. . . continued)
Counsel: You did say green tape you saw them put over it. And
that would have been in 2001—2000, 2001 when the
carpet first came to the Arena, being used by the
Cobras?
Stone: True.
Counsel: And subsequent by the Storm?
Stone: True.

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attorney. Counsel’s affidavit addressed the newly discovered evidence of Gaylen’s

post-injury conduct, also referring to the previously mentioned exhibits. Counsel

stated:

43. Following trial in this matter, Steen [the Storm president]
was contacted by the coach of the Sioux Falls Lawdawgs,
Jordan Taylor.
44. The Sioux Falls Lawdawgs is a semi-professional football
team in South Dakota. See Exhibit 16, Affidavit of Jordan
Taylor, Exhibit 16C, Website Information.
45. Jordan Taylor represented to both Colin Steen and the affiant
that the Plaintiff, Gaylen Klutman, signed and submitted an
application to play football with the Lawdawgs on October 17,
2007. See Exhibit 16, Affidavit of Jordan Taylor; Exhibit
16A, Application; Exhibit 16B, Program Roster. He also
believed Gaylen Klutman had applied to the team and played
in years prior to 2007.
46. Jordan Taylor informed Steen that [Gaylen] practiced with
the Lawdawgs throughout October of 2007, three times a
week for a three-hour practice, without limitation or
restriction. See Exhibit 16, Affidavit of Jordan Taylor.
47. Jordan Taylor further indicated [Gaylen] went with the
Lawdawgs to a game on November 10, 2007. See Exhibit 16,
Affidavit of Jordan Taylor; Exhibit 16B, Program Roster;
Exhibits 16D-16E, Photographs of Gaylen Klutman, Jersey
Number 46, taken on 11-10-07.

[¶34.] Our problem in reviewing this issue is that although the motion and

attorney’s affidavit appear in the record, none of the supporting evidentiary exhibits

referenced in the two documents are included. 9 In the absence of the supporting

exhibits, the affidavit of counsel does not stand on its own merit. See

Andrushchenko v. Silchuk, 2008 SD 8, ¶11, 744 NW2d 850, 855 (discussing the

9. The Storm also cites Gaylen’s deposition testimony which is not in the record.

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propriety of attorney affidavits only for uncontested facts or matters of mere

formality). This leaves us with little to review other than the Storm’s argument.

[¶35.] In responding to the Storm’s argument, Gaylen also relies on

documents not in the record. Gaylen’s brief references an affidavit of Marc Phillips,

a former Lawdawgs player, and Sharla Reynolds, Gaylen’s fiancée, relaying

Gaylen’s alleged diminished level of participation with the Lawdawgs. 10 It is

unknown whether the trial court considered either parties’ extra record evidence

because the time to rule on the motion for new trial expired and the motion was

deemed denied by operation of law. See SDCL 15-6-59(b).

[¶36.] It is well settled that this Court’s review is “restricted to facts

contained within the settled record.” Toben v. Jeske, 2006 SD 57, ¶11, 718 NW2d

32, 35. It is immaterial if the settled record contains references to or an

acknowledgment of items omitted from the settled record. See id. (holding an

affidavit referred to by the court and the parties but not contained in the record

could not be considered on appeal). “Moreover, all parties are obligated to see that

the settled record contains all matters necessary for the disposition of the issues

raised on appeal, and the ultimate responsibility for presenting an adequate record

on appeal falls upon the appellant.” Id. (quoting Caneva v. Miners & Merchants

Bank, 335 NW2d 339, 342 (SD 1983)). See also Huelsman v. Civic Center Corp.,

10. On appeal, the Storm moved to strike these affidavits because they were not
in the record. We deferred consideration of the motion until consideration of
the merits. In light of our disposition on the merits, we need not decide the
motion to strike.

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873 F2d 1171, 1175 (8thCir 1989) (concluding: “An appellate court can properly

consider only the record and facts before the district court and thus only those

papers and exhibits filed in the district court can constitute the record on appeal.

Because this affidavit is presented for the first time at the appellate stage, it is not

part of the record for our review.”). Thus, “[t]he [appellant’s] argument suffers from

the fatal flaw of being premised upon facts that are not contained within the settled

record. This Court has repeatedly instructed that the party claiming error carries

the responsibility of ensuring an adequate record for review.” Okerson v. Common

Council of the City of Hot Springs, 2009 SD 30, ¶8, __NW2d __ (citation omitted).

[¶37.] Through recent rule changes this Court has encouraged parties to

include an appendix containing the documents necessary to resolve appeals. 11

Nevertheless, an appendix is not a substitute for designating and submitting the

record on appeal. Documents in the appendix must be included within, and should

be cross-referenced to, the settled record. See SDCL 15-26A-60(8) (providing that

“[t]he appendix shall include . . . any relevant portions of the pleadings,

instructions, and transcripts” and “any other parts of the record to which the parties

wish to direct the particular attention of the Court.”) (emphasis added). Neither

party has followed these rules in making their appellate arguments on this issue.

[¶38.] “When a party seeks a new trial under SDCL 15-6-59(a) based on

newly discovered evidence, the party must demonstrate first that it is newly

11. 2007 SD Sess Laws ch. 309 (Supreme Court Rule 06-77); 2004 SD Sess Laws
ch. 315 (Supreme Court Rule 03-14).

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discovered evidence and second[] that it could not, by reasonable diligence, have

been determined and produced at the trial and that it would be believed by the jury

and would produce a different result.” Bridgewater Quality Meats, LLC v. Heim,

2007 SD 23, ¶14, 729 NW2d 387, 393 (citation omitted). Moreover, “[n]ew trial

motions based on newly discovered evidence request extraordinary relief; they

should be granted only in exceptional circumstances and then only if the

requirements are strictly met.” Id. ¶20 (quoting State v. Gehm, 1999 SD 82, ¶15,

600 NW2d 535, 540). Without record evidence, the Storm did not meet these

requirements. We affirm the trial court’s denial of the motion for new trial.

[¶39.] 6. Whether the jury verdict was supported by sufficient
evidence.

[¶40.] In its motion for new trial, the Storm argued that “[t]here was

insufficient evidence in the case to quantify a verdict in that there was no evidence

that [the Storm] failed to properly install or inspect the artificial turf.” In

determining if there was sufficient evidence to support the jury’s decision, “we

review the testimony and evidence in a light most favorable to the verdict or to the

nonmoving party.” Christenson v. Bergeson, 2004 SD 113, ¶12, 688 NW2d 421,

425-26 (citation omitted). “[W]ithout weighing the evidence, [this Court] must

decide if there is evidence which would have supported or did support a verdict.”

Id. We are also mindful that questions of negligence “are almost always questions

for the jury.” Thompson v. Mehlhaff, 2005 SD 69, ¶40, 698 NW2d 512, 524 (citation

omitted).

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[¶41.] The Storm contends that there was no evidence to support a finding of

negligence and Gaylen’s claims were refuted at each turn. However, a review of the

record in a light most favorable to the verdict reflects that no warnings were given

to the participants concerning the condition of the turf; the children were playing

unsupervised; the turf had a tendency to create gaps or folds or needed to be

readjusted; there was no established protocol to ensure the safety of the turf; the

Storm sought new turf because they characterized the field as dangerous to the

players; the Storm had taped the seams on the turf, but it was not done during the

promotional event; Gaylen and his brother both testified that Gaylen’s foot was

caught under the turf that day; and, Gaylen suffered a serious physical injury and

damages. Under our deferential standard of review, there existed ample evidence

to support the verdict.

[¶42.] Affirmed.

[¶43.] GILBERTSON, Chief Justice, and KONENKAMP and MEIERHENRY,

Justices, and SABERS, Retired Justice, concur.

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