Klutman v. Sioux Falls Storm, 24835.

Citation769 N.W.2d 440,2009 SD 55
Decision Date08 July 2009
Docket NumberNo. 24835.,24835.
PartiesJames 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.
CourtSupreme Court of South Dakota
769 N.W.2d 440
2009 SD 55
James KLUTMAN, Rose Klutman and Gaylen Klutman, Plaintiffs and Appellees,
SIOUX FALLS STORM, a/k/a K.T., LLC, Sioux Falls Arena, managed by SMG, Defendants and Appellants.
No. 24835.
Supreme Court of South Dakota.
Argued March 25, 2009.
Decided July 8, 2009.

[769 N.W.2d 443]

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.

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

769 N.W.2d 444

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 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 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

769 N.W.2d 445

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 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.


[¶ 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 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

769 N.W.2d 446

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 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 had expired 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...

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