(concurring).
In all matters, I join the writing of the Chief Justice.
After two feet of snow was dumped on this hog facility, Gerlachs did nothing to mitigate the weight of the snow on the roof. No snow removal was accomplished. Certainly, they should not idly stand by and watch the demise of the facility. “Questions of negligence, contributory negligence and assumption of risk are for the jury, provided there is evidence to support them." Ballard v. Happy Jack’s Supper Club, 425 N.W.2d 385, 389 (S.D.1989). (Emphasis supplied mine).
This hog facility lasted for almost nine years. Gerlachs made use of it. It did not die of incipient collapse. That “something” was the weight of at least two feet of snow. In South Dakota, you learn to shovel snow. You have to in order to survive. Gerlachs should have shoveled snow. Surely, the contributory negligence question, under Instruction 26, was properly submitted to the jury.
Located just south of a shelter belt, a larger amount of snow accumulated on the roof of the building. Gerlachs should have observed this additional snow creating additional risk. And they risked the damage to this building by being physically inert. When one peruses the three elements set forth in Ballard, it is evident that the facts fit therein, and trial court did not err in giving the assumption of risk instruction. Gerlachs assumed the risk of the roof caving in by not picking up some snow shovels and going to work. They had the ability to avert this damage, having actual notice of the danger, an appreciation of its character, and the time/knowledge to make an intelligent choice. Is not the difficulty in life — choice?