Ballard v. Happy Jack's Supper Club, 15649

• Decision Date: 13 January 1988
• Docket Number: No. 15649,15649
• Parties: Monica BALLARD, Executrix of the Estate of Leo Ballard, Deceased, and Monica Ballard, on Her own Behalf, Plaintiff and Appellant, v. HAPPY JACK'S SUPPER CLUB, Mary Ann O'Malley, Larry O'Malley, Betty O'Malley and Eldora O'Malley, Defendants and Appellees. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 385

425 N.W.2d 385

Monica BALLARD, Executrix of the Estate of Leo Ballard Deceased, and Monica Ballard, on Her own Behalf Plaintiff and Appellant, v. HAPPY JACK'S SUPPER CLUB, Mary Ann O'Malley, Larry O'Malley Betty O'Malley and Eldora O'Malley, Defendants and Appellees.

No. 15649.

Supreme Court of South Dakota.

Considered on Briefs Jan. 13, 1988.

Decided June 15, 1988.

Rick Johnson of Johnson, Eklund & Davis, Gregory, for plaintiff and appellant.

Steven M. Johnson and Michael F. Marlow of Brady, Reade & Johnson, Yankton, for defendants and appellees.

HENDERSON, Justice.

PROCEDURAL HISTORY/ISSUES ON APPEAL

Monica Ballard (Appellant) initiated a negligence action against Happy Jack's Supper Club and the partners (O'Malleys) who owned it, after her husband, Leo Ballard (Ballard), now deceased, fell in the Club's parking lot, breaking both of his arms. A jury trial was held in the circuit court for Yankton County. Verdict was returned for the defendants. Appellant alleges error below, creating two issues on appeal:

(1) The refusal of the trial court to supplement jury instructions concerning a landowner's duty of care toward a business invitee; and,

(2) Use of an assumption of risk instruction.

We reverse and remand on the basis of Issue (1).

FACTS

At approximately 10:00 p.m. on September 3, 1983, Ballard, Appellant, and two friends, Mr. and Mrs. Manning, stopped at the Club for a late dinner. They attended a football game earlier, and each consumed several alcoholic drinks before their arrival at the Club. The Club's parking lot contained a number of white parking curbs, placed parallel to the walkway along the side of the building. At the time the group arrived, the lot was well lighted. On his way from the car to the entrance, Ballard did not pass over any of the curbs, which he nonetheless knew were in place from prior visits.

Ballard had a drink before and after his meal. After dinner, at about 1:00 a.m., the Ballard party left the Club, Ballard himself trailing behind the others as he had lingered to pay the bill. The others testified that they had no difficulty seeing their way to the car, although the Club's parking lot floodlights and neon advertising sign had been extinguished earlier to signal potential customers that the Club's grill was closed for the night. ¹ Ballard, however, fell, having tripped over one of the parking curbs, which he later expressed in a written statement that he had not seen, although he was aware of their presence.

At this point, we note that Ballard was a diabetic who had some loss of feeling in his lower legs. He seems to have had some difficulty in moving around. He also had arthritis, stemming from injuries incurred in previous falls. Because of his poor health, especially the diabetes, he had been instructed by doctors not to drink alcohol, but continued to do so on a regular basis. No testimony was given indicating that he was intoxicated or disoriented in any way at the time of the incident in question, although he had consumed four or five alcoholic drinks over the course of the evening (from before the game, until his after-dinner drink). Ballard died of cancer before trial.

Appellant asserted that the O'Malleys were negligent in turning off lights before Ballard, a business invitee, left the Club that night; and it was this act which caused Ballard's fall and injuries. O'Malleys defended themselves by denying negligence and pleaded the affirmative defenses of contributory negligence and assumption of risk. A jury trial ensued, during which Appellant's counsel objected to court's jury instruction concerning a landowner's duty to business invitees (No. 23), arguing that it was an incomplete statement of the law. Counsel offered a handwritten instruction of his own, which the court refused on the ground that it was not in compliance with the statute (SDCL 15-6-51(a)) prescribing the physical format and procedure for submission of such instructions. Defense counsel did not offer to waive the statutory requirements. Appellant's counsel also objected to two jury instructions setting forth the assumption of risk defense. These objections were based on an alleged lack of evidence to support such a theory. The court disagreed, whereupon these instructions went to the jury. After an arduous trial, with able/experienced counsel trying the facts, the jury returned a verdict for defendants.

DECISION

I. INSTRUCTION NO. 23--REGARDING LANDOWNERS' DUTY OF CARE

Appellant argues that the court's instruction concerning a landowner's duty of care was incomplete. We agree; however, to reach the merits of this issue, we must first consider the threshold question of Appellant's failure to comply with the requirements of SDCL 15-6-51(a), which provides in part:

All requests for instructions shall be in writing and in duplicate, and shall be presented to the court on or before the time fixed for settling instructions.... [C]ounsel shall furnish to the judge the original of each such requested instruction and such originals shall not be numbered, and shall not in any way show that they are requested instructions, but shall have at the top of each instruction a space for numbering. Such original requested instructions shall be typed, double-spaced, on letter-size, bond paper in such form that the judge can insert the original requested instruction in the set to be used by the jury in the event the instruction is adopted by the court.... An additional numbered copy of each requested instruction shall be furnished to opposing counsel.

The court shall in no case qualify, modify, or in any manner explain to the jury any written instruction given, unless such qualification, modification, or explanation shall first have been reduced to writing and made a part of such instruction and settled.

....

In all cases the instructions shall be taken by the jury in their retirement, and returned into court with their verdict. No instruction taken by the jury shall be marked so as to indicate it was requested.

In State v. Greene, 86 S.D. 177, 192 N.W.2d 712 (1971), this Court rejected orally requested instructions, holding that statutory requirements must be substantially complied with. Greene, 86 S.D. at 185, 192 N.W.2d at 716-17 (Greene specifically dealt with SDCL 15-6-51(b)). As to the meaning of "substantial compliance" in reference to SDCL 15-6-51(a), this Court has recently condoned a trial court's handwritten fifteen-word amendment to a jury instruction. See State v. Reed, 387 N.W.2d 10, 14 (S.D.1986). This is an obvious relaxation of the typewritten requirement and was birthed for spirit of the law vis-a-vis letter of the law. "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." SDCL 23A-44-14; Reed, 387 N.W.2d at 13. Pertinent to our inquiry, we note Katch v. Speidel, Div. of Textron, Inc., 746 F.2d 1136 (6th Cir.1984):

Even if an incorrect proposed instruction is submitted which raises an important issue of law involved in light of proof adduced in the case, it becomes the duty of the trial court to frame a proper instruction on the issue raised, and the court's instruction may then be considered on appeal. Celanese Corp. of America v. Vandalia Warehouse Corp., 424 F.2d 1176 (7th Cir.1970); Messer v. L.B. Foster Co., 254 F.2d 412, 414 (5th Cir.1958); Westchester Fire Ins. Co. v. Hanley, 284 F.2d 409, 418 (6th Cir.1960).

The judge generally has a duty to frame a requested instruction properly and to submit it to the jury where the legal principle is necessary to the proper determination of the case.

Jones v. Miles, 656 F.2d 103, 107 n. 6 (5th Cir.1981).

Katch, 746 F.2d at 1139. ² Under South Dakota law, the judge is charged with the duty to instruct the jury as to the law of the case. SDCL 15-6-51(a). As Appellant's handwritten instruction, per Reed, could have formed the basis for amendment of the court's jury instruction, we must examine the substance of the instructions given and proposed.

The gravamen of Appellant's argument, on court's Instruction No. 23, is that the court failed to inform the jury that a landowner's duty of reasonable care toward a business invitee ³ (which Ballard unquestionably was) is not necessarily extinguished even if the invitee knew of the dangerous condition on the land that caused invitee's harm. Appellant's handwritten proposed instruction reads:

Where a possessor of business property has reason to expect that a business invitees' attention may be distracted so that he will not discover what is obvious, or will forget what he has discovered or fail to protect himself against it, then the possessor of the property is not relieved of the duty of reasonable care which he owes to the invitee for his protection.

This instruction parallels, not precisely, the Restatement (Second) of Torts § 343A(1) comment f (1965), which was discussed at length in Mitchell v. Ankney, 396 N.W.2d 312 (S.D.1986). The full text of Restatement (Second) of Torts § 343, detailing the landowner's duty to a business invitee, provides:

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger. (Emphasis supplied.)

Comment (a) to this section directs that § 343 should be read together with § 343A (known or obvious dangers), which serves to limit the landowner's liability. Section 343A(1) reads as follows:

(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless...