Wangsness v. Builders Cashway, Inc.

• Citation: 2010 SD 14,779 N.W.2d 136
• Decision Date: 10 February 2010
• Docket Number: No. 24921.,No. 25062.,No. 24930.,24921.,24930.,25062.
• Parties: Tanner WANGSNESS, Plaintiff and Appellant, v. BUILDERS CASHWAY, INC., Defendant and Appellee.
• Court: Supreme Court of South Dakota

779 N.W.2d 136 2010 SD 14 Tanner WANGSNESS, Plaintiff and Appellant,
v.
BUILDERS CASHWAY, INC., Defendant and Appellee. No. 24921. No. 24930. No. 25062. Supreme Court of South Dakota. Argued October 6, 2009. Decided February 10, 2010.

[779 N.W.2d 138]

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

Rochelle R. Cundy of Murphy, Goldammer & Prendergast, LLP, Sioux Falls, South Dakota, for defendant and appellee.

SEVERSON, Justice.

[¶ 1.] Tanner Wangsness (Wangsness) brought this strict products liability action against Builders Cashway, Inc. (Builders Cashway), alleging the bi-fold door his grandfather purchased from Builders Cashway was defective. Wangsness's strict products liability action against Builders Cashway proceeded to trial. After hearing the evidence, the jury rendered a verdict, and the circuit court entered a judgment in favor of Builders Cashway. We affirm.

BACKGROUND

[¶ 2.] Builders Cashway, Inc. is a hardware store and lumberyard in Miller, South Dakota. Builders Cashway sells hundreds of farm and home repair products, including fencing, paint, wallpaper, shades, blinds, insulation, sheetrock, and siding. Dennis Cundy established Builders Cashway in 1978.

[¶ 3.] Wangsness, Inc. is a farming and ranching operation located southwest of

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Miller, South Dakota, and operated by Darrell Wangsness and his brother, Mark. In 1991, Wangsness, Inc. sought to replace the sliding door on its Quonset building, which was originally built in the 1950s. Mark Wangsness selected and purchased a bi-fold door from Builders Cashway. The door was manufactured by Schweiss Chicken Pluckers (Schweiss) and was installed by Builders Cashway employees.

[¶ 4.] The bi-fold door purchased by Wangsness, Inc. utilized a horizontal hinge system that allowed the door to fold into two halves. When opened, the door folded outside the building, thereby providing overhead clearance inside the building. The door was set in motion by a switch box connected by a cord to the bi-fold door's motor. This switch box was not mounted in a stationary position but sat on a work bench near the door. A rotating shaft and cable mechanism, located on the bottom left-hand side of the door, winched the door upward. The door rose as the cable wrapped around a rotating shaft. The point at which the cable wrapped around the shaft was plainly visible.

[¶ 5.] On August 4, 2003, fifteen-year-old Wangsness and his grandfather, Darrell, arrived at the Quonset building shortly after lunch. The two planned to work on a vehicle in the building. Darrell first went to the nearby house to make a phone call. Meanwhile, Wangsness opened the bi-fold door to the Quonset building. Shortly thereafter, Wangsness appeared at the door of the nearby house, displaying serious injuries to his hands. Wangsness had set the bi-fold door in motion and an incident occurred, amputating the four fingers of his left hand. No one other than Wangsness was present, and Wangsness maintains he does not remember the incident.

[¶ 6.] Prior to the summer of 2003, Wangsness was living and working on the Wangsness, Inc. farm. He spent a little more than ten hours per week working for Wangsness, Inc. He primarily assisted by mowing grass and moving vehicles around the farm. He also worked on cars in and around the Quonset building. He therefore regularly observed the operation of the bi-fold door on the building, particularly in the summer. He operated the door himself on at least two occasions prior to the accident. Wangsness never received any specific instruction on the use of the door, because, as Darrell testified, the door "is so simple" that no instruction on its operation is necessary.

[¶ 7.] Wangsness initiated this lawsuit against Builders Cashway and Schweiss in April 2006. In May 2007, Schweiss filed a motion for summary judgment. Schweiss claimed they had filed for bankruptcy, thereby extinguishing any potential liability to Wangsness. They also asserted that Schweiss Distributing, the successor corporation that purchased the assets of Schweiss, was not liable to Wangsness. Wangsness did not oppose the motion, and the circuit court granted judgment in favor of Schweiss. Wangsness thereafter stipulated to dismiss Schweiss with prejudice.

[¶ 8.] Wangsness proceeded with his strict liability claims against Builders Cashway. He alleged the bi-fold door was defective due to (1) the unguarded nature of the rotating shaft and cable and (2) the lack of adequate warning as to the door's use. After hearing the evidence, the jury rendered a verdict, and the circuit court entered a judgment in favor of Builders Cashway. Wangsness appeals. Builders Cashway also presents issues for this Court's consideration by notice of review.

STANDARD OF REVIEW

[¶ 9.] The applicable standard of review varies depending on whether the issue is one of fact or one of law. A circuit

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court's findings of fact will not be set aside unless they are clearly erroneous. SDCL 15-6-52(a). The question is not whether this Court would have made the same findings the circuit court did, but whether on the entire evidence, "we are left with a definite and firm conviction a mistake has been committed." New Era Mining Co. v. Dakota Placers, Inc., 1999 SD 153, ¶ 7, 603 N.W.2d 202, 204. By contrast, conclusions of law are reviewed under a de novo standard, giving no deference to the circuit court's conclusions of law. Id.

[¶ 10.] We have previously clarified our standard of review for jury instructions as follows:

A trial court has discretion in the wording and arrangement of its jury instructions, and therefore we generally review a trial court's decision to grant or deny a particular instruction under the abuse of discretion standard. However, no court has discretion to give incorrect, misleading, conflicting, or confusing instructions: to do so constitutes reversible error if it is shown not only that the instructions were erroneous, but also that they were prejudicial.

State v. Cottier, 2008 SD 79, ¶ 7, 755 N.W.2d 120, 125 (quoting State v. Packed, 2007 SD 75, ¶ 17, 736 N.W.2d 851, 856) (quoting Vetter v. Cam Wal Elec. Coop., Inc., 2006 SD 21, ¶ 10, 711 N.W.2d 612, 615 (internal citations omitted)). "Erroneous instructions are prejudicial ... when in all probability they produced some effect upon the verdict and were harmful to the substantial rights of a party." SDCL 15-6-61. See Cottier, 2008 SD 79, ¶ 7, 755 N.W.2d at 125 (citations omitted).

[¶ 11.] Evidentiary rulings made by the circuit court are presumed correct and are reviewed under an abuse of discretion standard. State v. Boston, 2003 SD 71, ¶ 14, 665 N.W.2d 100, 105 (citing State v. Goodroad, 1997 SD 46, ¶ 9, 563 N.W.2d 126, 129 (citing State v. Oster, 495 N.W.2d 305, 309 (S.D.1993))). "The test is not whether we would have made the same ruling, but whether we believe a judicial mind, in view of the law and the circumstances, could have reasonably reached the same conclusion." Id. If error is found, it must be prejudicial before this Court will overturn the circuit court's evidentiary ruling. Id. (citing State ex rel. Dep't of Transp. v. Spiry, 1996 SD 14, ¶ 11, 543 N.W.2d 260, 263).

DECISION Appeal # 24921

[¶ 12.] 1. Whether the circuit court abused its discretion by instructing the jury on the doctrine of assumption of the risk.

[¶ 13.] Wangsness argues the circuit court erred by instructing the jury on the doctrine of assumption of the risk. It is well established in South Dakota that assumption of the risk is a defense to a claim of strict products liability. See Berg v. Sukup Mfg. Co., 355 N.W.2d 833, 835 (S.D.1984). A plaintiff assumes the risk when he is "aware the product is defective, knows the defect makes the product unreasonably dangerous, has reasonable opportunity to elect whether to expose himself to the danger, and nevertheless proceeds to make use of the product." Smith v. Smith, 278 N.W.2d 155, 161 (S.D.1979). "A person is deemed to have appreciated the risk `if it is the type of risk that no adult of average intelligence can deny.'"¹ Duda v. Phatty McGees, Inc.,

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2008 SD 115, ¶ 13, 758 N.W.2d 754, 758 (quoting Ray v. Downes, 1998 SD 40, ¶ 15, 576 N.W.2d 896, 898 (quoting Westover v. E. River Elec. Power Coop., Inc., 488 N.W.2d 892, 901 (S.D.1992))). The plaintiff must have knowledge of the specific defect and risk posed rather than simple generalized knowledge that he has entered a zone of danger. Novak v. Navistar Int'l Transp. Corp., 46 F.3d 844, 848-49 (8th Cir.1995).

[¶ 14.] We consider whether the instruction on the doctrine of assumption of the risk was supported by the evidence or issues raised at trial. A circuit court should instruct the jury on issues "supported by competent evidence in the record." Johnson v. Armfield, 2003 SD 134, ¶ 7, 672 N.W.2d 478, 481 (quoting Artz v. Meyers, 1999 SD 156, ¶ 8, 603 N.W.2d 532, 534) (quoting Kuper v. Lincoln-Union Elec. Co., 1996 SD 145, ¶ 32, 557 N.W.2d 748, 758). In determining whether the instruction was proper, the plaintiff's "claim that the evidence was insufficient to establish assumption of the risk is viewed `in the light most favorable to upholding the verdict.'" Armfield, 2003 SD 134, ¶ 7, 672 N.W.2d at 481 (quoting Parker v. Casa Del Rey-Rapid City, 2002 SD 29, ¶ 5, 641 N.W.2d 112, 115) (quoting Engberg v. Ford Motor Co., 87 S.D. 196, 201, 205 N.W.2d 104, 106 (1973)).

[¶ 15.] Evidence relevant to the doctrine of assumption of the risk was presented at trial. Wangsness worked on cars in and around the Quonset building. He regularly observed the operation of the bi-fold door, particularly in the summer. He also operated the door himself on at least two occasions prior to the accident. The rotating shaft and cable were open and obvious. Wangsness understood that failing to keep his hands away from the rotating shaft and cable mechanism on the...