Steffen v. Schwan's Sales Enterprises

• Citation: 713 N.W.2d 614,2006 SD 41
• Decision Date: 19 April 2006
• Docket Number: No. 23706.,No. 23718.,23706.,23718.
• Parties: Marita STEFFEN, Plaintiff and Appellant, v. SCHWAN'S SALES ENTERPRISES, INC. a/k/a Schwan's Home Service, Inc., Defendant and Appellee.
• Court: Supreme Court of South Dakota

713 N.W.2d 614

2006 SD 41

Marita STEFFEN, Plaintiff and Appellant, v. SCHWAN'S SALES ENTERPRISES, INC. a/k/a Schwan's Home Service, Inc., Defendant and Appellee.

No. 23706.

No. 23718.

Supreme Court of South Dakota.

Considered on Briefs January 9, 2006.

Decided April 19, 2006.

COPYRIGHT MATERIAL OMITTED

Arlo D. Sommervold of Sommervold Law Firm, Sioux Falls, South Dakota, Attorneys for plaintiff and appellant.

Melanie L. Carpenter of Woods, Fuller, Shultz & Smith, Sioux Falls, South Dakota, Attorneys for defendant and appellee.

KONENKAMP, Justice.

[¶ 1.] Marita Steffen pulled over to the side of the road and stopped to make way for an approaching emergency vehicle. After it passed, but before she started moving again, her car was rear-ended by a delivery truck owned by Schwan's Sales Enterprises, Inc., and driven by James Koch. At trial, defendant Schwan's claimed that Steffen was contributorily negligent because she remained stopped too long after the emergency vehicle had passed. Over Steffen's objection, the circuit court gave the jury a contributory negligence jury instruction. Thereafter, the jury, through special interrogatories, found Schwan's to be negligent and Steffen to be contributorily negligent, but not more than slight. Steffen appeals. We reverse because, under the circumstances of this rear-end collision, there was insufficient evidence to justify submitting the issue of contributory negligence to the jury.

Background

[¶ 2.] On April 21, 2001, Steffen was driving on Cliff Avenue in Sioux Falls, South Dakota. Cliff Avenue runs north and south and has four lanes, but no shoulder. While Steffen was proceeding south, she was met by an emergency vehicle with its lights on and siren sounding. Steffen responded by pulling her vehicle over and stopping in the far west driving lane. Other cars in front of her did the same. While the emergency vehicle was passing, Steffen testified that she looked in her rearview mirror and saw a Schwan's delivery truck coming towards her. According to her, the driver was not looking forward, but to the left. Steffen described how she continued to watch the driver as she was "getting a little freaked out. I couldn't go anywhere. There was a car like in front of me and a car in front of him that had all pulled over." Shortly thereafter, Koch's delivery truck struck Steffen's car causing property damage and bodily injuries to Steffen.

[¶ 3.] Koch testified that he was driving south on Cliff Avenue when the emergency vehicle approached with its lights on and siren sounding. He, like Steffen, described how cars were pulling over in the far west lane. But Koch could not relate exactly whether he slowed down to pull over or actually pulled over and stopped. He said that during the time he was either stopping or trying to stop, he looked to his left for the emergency vehicle. According to Koch, he noticed that the emergency vehicle had passed by him, so he proceeded to move forward. At this point, he saw that Steffen was still stopped in the driving lane. Koch testified that he tried to avoid hitting Steffen, but there was a vehicle to his left and a street post to his right. Because he could not stop in time, he rear-ended Steffen's car.

[¶ 4.] At trial Schwan's asserted that Steffen was contributorily negligent because Koch testified that Steffen was still stopped even though the emergency vehicle had passed. Steffen requested a directed verdict on the issue of Koch's negligence and the lack of her contributory negligence. The circuit court denied Steffen's motions. Moreover, the court allowed, over Steffen's objection, jury instructions on contributory and comparative negligence.

[¶ 5.] Through special interrogatories, the jury found that Koch was negligent and that his negligence was the legal cause of Steffen's injuries. The jury also found that Steffen was contributorily negligent, not more than slight, and reduced her award accordingly. Ultimately, the jury awarded Steffen $4,250 in medical care, treatment, and services rendered, and $2,500 for pain and suffering, mental anguish, and loss of capacity of the enjoyment of life experienced up to the date of the verdict. No damages were awarded for a bonus she claimed she lost as a result of the accident. Steffen later moved for a judgment notwithstanding the verdict and for a new trial. The court denied her motions and entered a judgment based on the jury award.

[¶ 6.] Steffen appeals on the grounds that the circuit court erred when it denied her motion for a directed verdict and instructed the jury on the issue of contributing negligence. By notice of review, Schwan's appeals the denial of its motion in limine on the question of Steffen's claimed lost bonus.

Standard of Review

[¶ 7.] We review the circuit court's decision to deny a motion for directed verdict under the abuse of discretion standard. Christenson v. Bergeson, 2004 SD 113, ¶ 10, 688 N.W.2d 421, 425 (citing Gilkyson v. Wheelchair Express, Inc., 1998 SD 45, ¶ 7, 579 N.W.2d 1, 3 (quoting Bland v. Davison County, 1997 SD 92, ¶ 26, 566 N.W.2d 452, 460 (additional citations omitted))).

When reviewing refused motions for a directed verdict, we examine the evidence in a light most favorable to the nonmoving party, giving that party the benefit of all reasonable inferences fairly drawn from the evidence. Denke v. Mamola, 437 N.W.2d 205, 207 (S.D.1989); Kreager v. Blomstrom Oil Co., 379 N.W.2d 307, 310 (S.D.1985); Koupal & Anton, Inc. v. Wieczorek, 375 N.W.2d 639, 640 (S.D.1985). If there is any substantial evidence to sustain the cause of action or defense, it must be submitted to the finder of fact. BankWest, Inc. v. Valentine, 451 N.W.2d 732, 734 (S.D.1990); Denke, 437 N.W.2d at 207.

Robbins v. Buntrock, 1996 SD 84, ¶ 16, 550 N.W.2d 422, 427. See also Christenson, 2004 SD 113, ¶¶ 10-11, 688 N.W.2d at 425; Kuper v. Lincoln-Union Elec. Co., 1996 SD 145, ¶ 36, 557 N.W.2d 748, 759.

[¶ 8.] With respect to jury instructions, our standard of review requires us to construe them as a whole to find "if they provided a full and correct statement of the law." First Premier Bank v. Kolcraft Enterprises, Inc., 2004 SD 92, ¶ 40, 686 N.W.2d 430, 448 (citations omitted). A party challenging jury instructions has the burden of establishing that they were both erroneous and prejudicial. Id. (citing State v. Moschell, 2004 SD 35, ¶ 54, 677 N.W.2d 551, 567). "An erroneous instruction is prejudicial if in all probability it produced some effect upon the verdict and is harmful to the substantial rights of the party assigning it." Id. (citing Carpenter v. City of Belle Fourche, 2000 SD 55, 609 N.W.2d 751).

Analysis and Decision

[¶ 9.] We first address whether the circuit court abused its discretion when it denied Steffen's motion for a directed verdict on the issue of negligence. Steffen asserts that she was required to stop for the emergency vehicle, and because she was legally stopped, Koch was negligent when he rear-ended her car. On reviewing a motion for a directed verdict, we must determine whether the record contains sufficient evidence to sustain the action, viewed in the light most favorable to the nonmoving party. SDCL 15-6-50(a); Christenson, 2004 SD 113, ¶ 22, 688 N.W.2d at 427. While other jurisdictions have adopted a presumption of negligence in rear-end accidents, we have so far declined to do so. Christenson, 2004 SD 113, ¶ 33, 688 N.W.2d at 429. "Instead we have required a plaintiff to plead and prove the negligent conduct of the defendant in a rear-end automobile collision." Id. "As we have often recognized, the mere fact an accident happened creates no inference that it was caused by someone's negligence." Carpenter, 2000 SD 55, ¶ 14, 609 N.W.2d at 759 (citing Del Vecchio v. Lund, 293 N.W.2d 474, 476-77 (S.D.1980)). Thus, we cannot say that the circuit court erred when it denied Steffen's motion for a directed verdict.

[¶ 10.] Steffen next asserts that the circuit court erred when it allowed the issue of contributory negligence to go to the jury. Accordingly, we must determine if there was evidentiary support for an instruction on contributory negligence. Johnson v. Armfield, 2003 SD 134, ¶ 7, 672 N.W.2d 478, 481 (citations omitted). "As long as there is competent evidence to support the theory of contributory negligence, it is proper for the issue to go to the jury." Id. ¶ 10 (citation omitted). Further, we require a party challenging a jury instruction to show that "in all probability [it] produced some effect upon the jury's verdict and [was] harmful to the rights of the party assigning it." Christenson, 2004 SD 113, ¶ 29, 688 N.W.2d at 428-29 (quoting Kjerstad v. Ravellette Publ'n, Inc., 517 N.W.2d 419, 426 (S.D. 1994) (citation omitted)).

[¶ 11.] Both parties testified that they were driving south on Cliff Avenue when they encountered an emergency vehicle going in the opposite direction with its siren sounding and lights flashing. Cliff Avenue does not have a shoulder for vehicles to pull on to, so both parties used the far west driving lane. But, then Koch claims he resumed travel after he looked out to his left and saw that the emergency vehicle had proceeded past him. Steffen described how she was stopped and noticed the Schwan's truck in her rearview mirror coming towards her, but she could not go anywhere because there were two vehicles in front of her. At some point, Koch noticed that Steffen was still stopped and tried to avoid hitting her, but rear-ended her vehicle. The only evidence offered on the issue of contributory negligence came from Koch. At best, his testimony is equivocal on whether he ever actually stopped in response to the emergency vehicle and before striking Steffen's car.¹

[¶ 12.] "Contributory negligence is negligence on the part of a plaintiff which, when combined with the negligence of a defendant, contributes as a legal cause in the bringing about of the injury to the plaintiff." S.D. Pattern Jury Instruction...