Bland v. Davison County

• Decision Date: 16 July 1997
• Docket Number: No. 19538,19538
• Citation: 1997 SD 92,566 N.W.2d 452
• Parties: Arpie BLAND and Kenneth Bland, Plaintiffs and Appellants, v. DAVISON COUNTY, Defendant and Appellee.
• Court: South Dakota Supreme Court

Page 452

566 N.W.2d 452

1997 SD 92

Arpie BLAND and Kenneth Bland, Plaintiffs and Appellants, v. DAVISON COUNTY, Defendant and Appellee.

No. 19538.

Supreme Court of South Dakota.

Argued Jan. 14, 1997.

Reassigned May 13, 1997.

Decided July 16, 1997.

William F. Day, Jr. of Lynn, Jackson, Shultz and Lebrun and N. Dean Nasser, Jr. of Nassre Law Offices, Sioux Falls, for Plaintiffs and Appellants.

Douglas M. Deibert of Cadwell, Sanford, Deibert & Garry Sioux Falls, for Defendant and Appellee.

GILBERTSON, Justice (on reassignment).

¶1 In Bland v. Davison County, 507 N.W.2d 80 (S.D.1993) we rejected the contention that Davison County, in the maintenance of icy roads, had absolute discretion and held rather that it was charged with the duty of "reasonable and ordinary care." Upon retrial, the jury found that the County fulfilled this obligation and decided in favor of the County. Arpie Bland appeals this adverse jury verdict in her personal injury lawsuit against the County. She claims 1) that the trial court erred when it refused to grant a change of venue in light of pretrial publicity and the jurors' status as taxpayers and 2) that the court should have granted a new trial because of juror misconduct. She also argues that the court abused its discretion 3) by refusing to allow impeachment in accordance with the exception to the subsequent remedial measure rule; 4) by denying her motions for directed verdict and judgment notwithstanding the verdict on the issue of County's negligence; 5) by failing to allow expert testimony regarding reasonable road maintenance standards; and 6) by instructing the jury on the defense of assumption of the risk. Finding no error, we affirm on all issues.

FACTS

¶2 On January 6, 1990, Arpie Bland (Bland) was traveling east from her rural Davison County home to Mitchell along County Highway 23, also known as the Loomis Oil Road. Just west of where that road intersects with County Highway 8 (Betts Road) a thick shelterbelt of trees lined approximately 500 feet (about one-tenth of a mile) of the south side of Loomis Road, creating a shady condition where snow and ice accumulated on the road. Bland reduced her speed from the posted 55 m.p.h. speed limit to 40 m.p.h. as was her habit when preparing to cross this patch of ice. As she crossed the ice, her car began to fishtail and spin and she was unable to regain control. The car continued out of control on the dry pavement at the end of the shelterbelt and into the northeast corner of the Betts Road intersection. It rolled 2 1/2 times. Bland suffered severe personal injuries and is now paraplegic.

¶3 At trial, the County stated that its policy was to sand only portions of highways containing stop signs, curves, hills, and bridges. Because of this policy, even though it admitted to the jury it was aware of the icy condition of the shelterbelted area, no sanding was done prior to the accident.

¶4 1. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED BLAND'S MOTION FOR A CHANGE OF VENUE

¶5 Bland argues that a change of venue should have been granted due to pretrial publicity regarding the lawsuit and because of the jurors' status as taxpayers. Our standard of review of the trial court's ruling on a change of venue motion is whether there was an abuse of discretion. State v. Petersen, 515 N.W.2d 687, 688 (S.D.1994); State v. Arguello, 502 N.W.2d 548, 551 (S.D.1993); State v. Wellner, 318 N.W.2d 324, 331 (S.D.1982) . "The term 'abuse of discretion' refers to a discretion exercised to an end or purpose not justified by, and against, reason and evidence." Ward v. Lange, 1996 SD 113, p 23, 553 N.W.2d 246, 252 (citations omitted).

¶6 A change of venue may be granted by a court when, among other reasons, "there is reason to believe that an impartial trial cannot be had therein[.]" SDCL 15-5-11(2). Bland concedes that pretrial publicity, standing alone, is insufficient to warrant a change of venue. See, e.g., Petersen, 515 N.W.2d at 688 ("If the jurors were unaware of the pretrial publicity or could not recall it, or if knowledge of the publicity did not cause a prejudicial opinion to be formed, a change of venue is unwarranted."); State v. Smith, 477 N.W.2d 27, 32 (S.D.1991) ("There must be additional evidence tending to show that such publicity was so prejudicial as to prevent ... a fair and impartial trial in the county."). Bland argues that the news stories which appeared in the Mitchell newspaper concerning the lawsuit instilled an "Us versus Them" attitude with the county residents, taxpayers, and therefore, the members of the jury. One article quoted the executive director of the South Dakota Association of County Commissioners as stating, "[The Blands] are not just suing the county. The county is the taxpayers of the county." The effect, Bland claims, was to "bolster the already inherent association and identification between the jury members and the Defendant."

¶7 Bland relies heavily on Olson v. City of Sioux Falls, 63 S.D. 563, 262 N.W. 85 (1935), where this Court affirmed an order for a change of venue granted for a second trial after the first trial ended in a hung jury. Olson sued the City of Sioux Falls for damage caused to his land by the City's pollution of the Big Sioux River. This court held that the trial court did not abuse its discretion in granting the change of venue:

It is one thing to hold that a juror may not be challenged for cause on account of a very small interest which he may have as a taxpayer, but quite another thing to conclude that an entire jury of taxpayers, each of whom is interested to a small degree adversely to the defendant, gives that assurance of a fair trial to which every litigant is entitled.

A jury is drawn from the body of the county, and, conceding that where the persons adversely interested in the result of an action are confined to a locality, and the number is small in comparison with the population of the county, no right to a change of place of trial would exist, we are convinced that the trial court was justified in concluding that the number of jurors from the city of Sioux Falls on a panel would be so proportionately large that an impartial jury could not be selected and that the trial court did not abuse its discretion.

Id. at 568, 262 N.W. at 88 (citation omitted). We need not reach the question as to whether this case sufficiently supports Bland's argument as she did not follow up on her concerns during voir dire, and failed to demonstrate any prejudice.

¶8 At a pretrial conference preceding the first trial date in February of 1995, the trial court responded to Bland's concerns regarding pretrial publicity by ordering the attorneys not to speak to the press and directing that the matter of press coverage would be handled on voir dire. The trial was originally scheduled for February, 1995, but was eventually held November 6-9, 1995. ¹ The first motion for a change of venue was made in February. Bland renewed the motion at the November pretrial motions hearing.

¶9 The court again instructed that voir dire would proceed and suggested counsel could renew the motion at the close of jury selection. The court informed the attorneys of its preference that counsel begin by addressing the entire panel and then address individual jurors according to any responses to those questions. Bland did not object to this, and questioned only one juror individually concerning preconceived notions about the case. That juror was removed for cause. ² Following that juror's removal, the topic of the questioning changed and no further inquiry was made into the subject. The motion for change of venue was renewed and again denied following voir dire.

¶10 "Voir dire examination is the better forum for ascertaining [public hostility]." Arguello, 502 N.W.2d at 552 n.1 (citation omitted). Bland could have asked to submit written questions to the panel for the purpose of determining which jurors may have heard out-of-court statements and the details of such news or statements, and could have asked to isolate and conduct individual voir dire of those jurors who had knowledge of the case. See Smith, 477 N.W.2d at 32; Boykin v. Leapley, 471 N.W.2d 165, 168 (S.D.1991). Although the court was not obligated to allow individual questioning, State v. Tapio, 459 N.W.2d 406, 412 (S.D.1990), such a request was not made. Based upon voir dire, the trial court concluded "[T]his is a jury of 12 impartial people who are not going to be improperly influenced in the case; the court believes that under our system a fair jury has been selected for both sides in this case."

The court, sitting through voir dire, found that the publicity, although it was unfortunate, did not so invade the jurors' minds or cause them to form opinions or beliefs which would affect their judgment in this particular case. The United States Supreme Court in Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984), found that whether or not the veniremen were acquainted with the case was "essentially irrelevant. The relevant question is not whether the community remembered the case, but whether the jurors at [the] trial had such fixed opinions that they could not judge impartially the guilt of the defendant[.]" 467 U.S. at 1035, 104 S.Ct. at 2891, 81 L.Ed.2d at 856.... Under Patton, the trial court's findings of juror impartiality may be overturned only for manifest error.

State v. Banks, 387 N.W.2d 19, 21 (S.D.1986) (alterations in original).

¶11 At the time Bland renewed the motion for change of venue, her counsel stated, "We are unable to, of course, establish a lot of prejudice from [the pretrial publicity]." However, it is Bland's burden to show that "knowledge of the publicity [caused] a prejudicial opinion to be formed[.]" Petersen, 515 N.W.2d at 688. Bland has not produced evidence to provide a sufficient basis for a change of venue, State v. Martin, 449 N.W.2d 29, 34 (S.D.1989), and has not shown abuse of...