Parker v. Casa Del Rey-Rapid City, Inc.

Decision Date27 February 2002
Docket NumberNo. 21810.,21810.
Citation641 N.W.2d 112,2002 SD 29
PartiesRichard PARKER, Plaintiff and Appellee, v. CASA DEL REY-RAPID CITY, INC., Defendant and Appellant.
CourtSouth Dakota Supreme Court

Dennis W. Finch, Tina M. Hogue of Finch, Bettmann, Maks, Rapid City, South Dakota, Attorneys for plaintiff and appellee.

Gregory G. Strommen of Costello, Porter, Hill, Heisterkamp, Bushnell & Carpenter Rapid City, South Dakota, Attorney for defendant and appellant.

AMUNDSON, Justice.

[¶ 1.] Richard Parker was injured while making a delivery from his truck to Casa del Rey in Rapid City, South Dakota. A jury awarded Parker $290,000 for his damages resulting from the fall. Casa del Rey appeals. We affirm.

FACTS

[¶ 2.] On December 21, 1995, Parker, an experienced truck driver, was making deliveries for Nobel/Sysco Company. As he progressed into his route, Parker stopped at Casa del Rey between 9 and 10 a.m. Parker backed his truck trailer up near the unloading dock behind the restaurant and parked so that a gap was left between the trailer and the dock.1 There is conflicting testimony of whether the gap was 10-12 inches or 12-18 inches. In addition, the truck trailer was a bit higher than the unloading dock, creating a step down onto the dock.

[¶ 3.] After parking, Parker got out of his truck and crossed the parking lot to the steps of the unloading dock. Parker was aware that a light snow had fallen during the previous night. Additionally, he had noticed grease present on the dock during prior deliveries. Parker alleges the snow had made the greasy film on the steps "different" than he was used to, but proceeded up the steps and across the dock anyway because he did not believe the condition of the area was dangerous. He stepped off the dock into his trailer where he used a two-wheeled cart to haul five or six boxes of chips, which were stacked taller than he was, and pushed the cart out of the truck onto the dock.2 As he did, his foot slipped from beneath him just as he stepped over the gap between the truck trailer and the unloading dock. He fell and became wedged in the gap between the truck trailer and the dock. Parker suffered physical injuries from the fall, including a herniated disk in his back, which required surgery and resulted in medical bills. He also incurred educational costs in order to obtain less strenuous employment since he was no longer physically able to drive truck.

[¶ 4.] At trial, Casa del Rey claimed that no grease was present on the steps on the day Parker fell. The manager of Casa del Rey, Robert Krebsbach, testified that his employees rarely spilled grease on the dock as they were removing it from the restaurant and carrying it outside to a receptacle. If they did, however, Krebsbach explained that it was restaurant policy to use a heavy-duty degreaser to clean up such spills. Casa del Rey also argued that Parker was contributorily negligent in the way he parked and unloaded the truck and that he had assumed the risk of injury. A jury found in favor of Parker and awarded him $290,000 in damages. Casa del Rey appeals the following issues:

1) Whether the evidence was sufficient to establish negligence.
2) Whether Parker was contributorily negligent and assumed the risk as a matter of law.
3) Whether the trial court correctly instructed the jury as to the law governing the case.
4) Whether the trial court should have allowed the admission of evidence regarding a previous fall at Casa del Rey.
5) Whether the trial court should have allowed evidence of the feasibility of safer equipment provided by Parker's employer to be presented at trial.
6) Whether the trial court properly admitted a photograph of the premises into evidence.
STANDARD OF REVIEW

[¶ 5.] Casa del Rey's claim that the evidence was insufficient to establish negligence is reviewed "in the light most favorable to upholding the verdict." See Engberg v. Ford Motor Co., 87 S.D. 196, 201, 205 N.W.2d 104, 106 (1973)

. The same standard applies when determining if assumption of the risk and contributory negligence exist as a matter of law. See Stenholtz v. Modica, 264 N.W.2d 514, 516 (S.D.1978) (stating when "determining whether the evidence on the plaintiff's behalf was sufficient to warrant submission to the jury, the plaintiff is entitled to have every controverted fact resolved in his favor and to have the benefit of all reasonable inferences that can be deduced from the evidence"). We have previously stated that the standard of review for issue three regarding jury instructions is, as follows:

On issues supported by competent evidence in the record, the trial court should instruct the jury. The trial court is not required to instruct on issues lacking support in the record. Failure to give a requested instruction that correctly sets forth the law is prejudicial error. Jury instructions are reviewed as a whole and are sufficient if they correctly state the law and inform the jury. Error is not reversible unless it is prejudicial. The burden of demonstrating prejudice in failure to give proposed instruction is on the party contending error. This Court has repeatedly stated that "[a] trial court must present only those instructions to the jury which are supported by competent evidence and set forth the applicable law."

Overfield v. Am. Underwriters Life Ins. Co., 2000 SD 98, ¶ 11, 614 N.W.2d 814, 816

(citations omitted). Finally, all issues regarding the trial court's evidentiary rulings require us to apply the "abuse of discretion" standard. See Zepp v. Hofmann, 444 N.W.2d 28, 31 (S.D.1989)

.

DECISION

[¶ 6.] 1. Whether the evidence was sufficient to establish negligence.

[¶ 7.] Under the laws of this state, to establish negligence the plaintiff must prove "duty, breach of that duty, proximate and factual causation, and actual injury." Fisher Sand & Gravel Co. v. South Dakota Dep't of Transp., 1997 SD 8, ¶ 12, 558 N.W.2d 864, 867 (citing Tipton v. Town of Tabor, 538 N.W.2d 783, 785 (S.D. 1995)). In this particular case, there is no dispute that Parker was a business invitee of Casa del Rey's. Thus, Casa del Rey owed Parker a duty to exercise "reasonable or ordinary care" while on its premises. Mitchell v. Ankney, 396 N.W.2d 312, 313 (S.D.1986).3 Reasonable and ordinary care requires Casa del Rey to keep its premises safe and warn any invitee, like Parker, of any "concealed, dangerous conditions known to ... [Casa del Rey]." See id. (citations omitted). In analyzing the duty owed to an invitee, this Court has stated that the "duty to warn is a subpart of the duty to keep the property reasonably safe. The duty to keep the property reasonably safe is, in turn, a subpart of the general duty to exercise reasonable care." Id. This Court has additionally acknowledged that landowners are not expected to insure a safe condition, but rather must warn of a dangerous condition only if the condition existed for a time long enough to "justify the inference that he had knowledge of its existence." Kryger v. Dokken, 386 N.W.2d 481, 483 (S.D.1986) (holding that a property owner with no knowledge of an abandoned well did not breach a duty under the nuisance laws). Furthermore, if a danger is reasonably obvious or known to the invitee, the landowner is excepted from liability unless he expects harm will occur in spite of the invitee's knowledge of the danger. See Stenholtz, 264 N.W.2d at 516

(summarizing Restatement (Second) of Torts § 343A (1965)).

[¶ 8.] Casa del Rey argues that the evidence at trial was insufficient to establish a claim of negligence for an array of reasons.4 Parker, however, points out that Manager Krebsbach admitted employees occasionally spill grease on the unloading dock, which could create a slippery surface. Additionally, Parker testified that grease was present on the steps and dock. And, although Parker saw the grease and snow, he testified that it did not appear dangerous to him. We must review these facts in a light most favorable to the verdict, and there was clearly evidence that could support the jury's decision. See Engberg, 205 N.W.2d at 105

. These facts are enough to prove that Casa del Rey breached the duty it owed to Parker as an invitee. There was sufficient evidence to support the jury's finding of negligence.

[¶ 9.] 2. Whether Parker was contributorily negligent and assumed the risk as a matter of law.

[¶ 10.] Contributory negligence is conduct by the plaintiff that amounts to a "breach of duty which the law imposes upon persons to protect themselves from injury, and which, concurring and cooperating with actionable negligence for which defendant is responsible, contributes to the injury complained of as a proximate cause." Starnes v. Stofferahn, 83 S.D. 424, 432, 160 N.W.2d 421, 426 (1968). Furthermore, this state follows the rule that if Parker's contributory negligence was "more than slight," the defendant is not liable for his own negligence. See id. at 433, 160 N.W.2d 421.

[¶ 11.] Assumption of the risk exists under the precedent of this state when an individual knows that the danger exists, appreciates the character of the danger and "voluntarily accept[s] such risk by having a sufficient amount of time, knowledge, and experience to make an intelligent choice." Myers v. Lennox Co-op. Assoc., 307 N.W.2d 863, 864 (S.D.1981). See also Mack v. Kranz Farms, Inc., 1996 SD 63, ¶ 9, 548 N.W.2d 812, 814

(enumerating the elements of assumption of the risk); Nelson v. Nelson Cattle Company, 513 N.W.2d 900, 904 (S.D.1994) (same).

[¶ 12.] Casa del Rey argues that the evidence shows Parker left a gap between the trailer and dock, obscured his vision with boxes and failed to use other available methods of unloading. Parker, however, also presented evidence that he did not appreciate the risk of falling, even though he saw the snow and the grease. He testified he did not realize the danger that the condition of the dock presented. Additionally, there was testimony that the gap...

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