concurring in part, dissenting in part.
I concur with the majority’s holding on issues one and three but dissent on issue two.
For reasons stated below, it is my opinion that the trial court erred in refusing Kaarup’s proposed instruction 1, which is quoted on page 849 of the majority opinion.
The proposed instruction is an accurate statement of the law recognizing that the disparity between the parties must be considered. Schmidt v. Wildcat Cave Inc., 261 N.W.2d 114 (S.D.1977); Moore v. Kluthe and Lane Agency Inc., 89 S.D. 419, 234 N.W.2d 260 (1975); Boos v. Claude, 69 S.D. 254, 9 N.W.2d 262 (1943); Restatement of Torts §§ 551 and 552 (1977). See also Littau v. Midwest Commodities Inc., 316 N.W.2d 639 (S.D.1982).
The majority correctly states that there was a genuine issue whether Schmitz, Kal-da acted as engineers or land surveyors. However, that issue was never submitted for consideration by the jury. The trial court, by instructions 16 and 17, defined the “practice of ‘land surveying’ ” and “professional engineering,” but never told the jury how to use those definitions. The jury was given the pattern jury instruction on negligence, contributory negligence and comparative negligence, but was never advised how to consider the claimed disparity between the parties in making its determination.
*851Although I concede that there was a sparsity of foundational evidence regarding engineers’ expertise in water permits, I suggest that under the facts here, coupled with the applicable settled law as set forth above, the trial court committed reversible error in refusing Kaarup’s proposed instruction 1. See Ballard v. Happy Jacks Supper Club, 425 N.W.2d 385 (S.D.1988) (Miller, J., concurring specially); see also Wang v. Wang, 393 N.W.2d 771 (S.D.1986); Runge v. Prairie States Life Ins. of Sioux Falls, 393 N.W.2d 538 (S.D.1986); Kappenman v. Action, Inc., 392 N.W.2d 410 (S.D.1986).