Welch v. Haase
| Decision Date | 03 December 2003 |
| Docket Number | No. 22684.,22684. |
| Parties | Larry WELCH, as the special administrator of the Estate of Caz "Larry" Welch, deceased, Plaintiff and Appellant, v. Allen HAASE and Zenda Haase, Defendants and Appellees, Darby Klein and Earla Klein, Defendants and Appellees. |
| Court | South Dakota Supreme Court |
George F. Johnson of Johnson, Eklund, Nicholson & Peterson, Gregory, SD, for plaintiff and appellant.
John S. Theeler, John F. Cogley of Morgan, Theeler, Wheeler, Cogley & Petersen, Mitchell, SD, for defendants and appellees Haase.
[¶ 1.] Larry Welch (Welch), special administrator of the Estate of Caz Welch (decedent), initiated wrongful death and survival actions following Caz's death in a single car auto accident. The actions were brought against the driver of the vehicle (Darby Klein), the driver's mother (Earla Klein), and the two landowners (Allen and Zenda Haase) who hosted a party immediately preceding the accident. Darby and Earla Klein did not retain counsel, did not answer the complaint, and proceeded to trial in default only to "find out how much [they] owe." Haases defended on a number of grounds including a lack of landowner liability, a lack of proximate cause, insufficient evidence of damages, assumption of the risk, and contributory negligence. The jury returned a general verdict in favor of all four defendants. Welch appeals the denial of his subsequent motion for judgment notwithstanding the verdict or new trial. Welch argues that the jury verdict was unfair and the subject of passion and prejudice. He also argues that the trial court erroneously instructed on the law governing landowner liability and the furnishing of alcoholic beverages by social hosts. We affirm the trial court's denial of Welch's motion relating to the Haases. With respect to the Kleins,1 we reverse and remand for new trial on both the wrongful death and the survival actions.
[¶ 2.] On May 21, 2000, the graduating class of Winner High School had a graduation party. The students had organized the party throughout the school year. They collected money to buy several kegs of beer for the party, and they arranged for someone over twenty-one to purchase it. By graduation, the location of the party was the only detail that had not been determined. Some students approached Allen and Zenda Haase to host the party. Haases' oldest son was in the graduating class, and Haases were asked if the party could be held at their farm, which was located forty miles from Winner. Haases agreed.
[¶ 3.] A large number of students attended the party, including Darby Klein and Caz Welch. Parents and other adults also attended. The adults were at the party to help enforce an informal set of "rules" that had developed from prior Winner graduation parties. The "rules" were purportedly designed to prevent alcohol-related driving accidents. One of the "rules" required the collection of all car keys in buckets as the students arrived. Adults were also posted at a gate put up by students to guard the farm's exit. Drivers wishing to leave the party were required to call a parent before leaving.
[¶ 4.] The Haases did not provide any of the alcohol consumed by the students at the party. They did, however, stay at their farm during the party. They also helped the other "chaperones" enforce the "rules." Consequently, Haases helped collect the students' keys and helped supervise the exit gate.
[¶ 5.] One of the other parents at the party was Ronda Godel. She was Caz Welch's mother. She also assisted with collecting the students' keys. However, she left early in the morning before the party was over. She did not leave any instructions with the Haases regarding Caz and whether he had her permission to leave.
[¶ 6.] At the end of the evening, the bucket of keys remained inside the Haases' home. When students got ready to leave the following morning, they were required to go into the house to get their keys. The students were also supposed to call a parent to get permission to drive home. Many students called their parents from the phone at the Haase home. Other students used cell phones to call their parents.
[¶ 7.] As they were leaving, the students had to drive through the gate that had been set up the previous evening. Zenda Haase and another adult were at the gate that morning. As students reached the gate, Zenda asked them to call their parents if they had not already done so from the house phone. One of the drivers Zenda encountered at the gate was Darby Klein. He was driving a van with five passengers, including Caz Welch.
[¶ 8.] Zenda asked Darby to call his mother to ask if it was "okay" to drive home and to tell her who he had with him in his van. Darby spoke to his mother, and allegedly got permission to drive home. Zenda knew that Darby had been at the party all night and that he had been drinking, but she testified that she did not see evidence that he was under the influence. Zenda did not take any other steps to ensure that Darby could safely drive, and she allowed him leave the party.
[¶ 9.] The passengers in Darby's van were all good friends. They had "partied" in a similar manner many times in high school. In fact, they had been drinking at and driving home from parties the entire week of graduation. One of the passengers, Summer Cousins, testified that on this day, she and the other passengers in the van were all aware that Darby had been drinking at the party. However, they all got in the van anyway because it was not the first time they had been with Darby when he was driving after he had been drinking.
[¶ 10.] After leaving the Haases', Darby drove for several miles. During the trip, Caz moved from the back of the van to the front to change the radio station. At the same time, someone in the back of the van asked for a cell phone. Darby turned back to give the phone to the passenger and lost control of the van. The van entered a ditch, hit an approach, rolled, and landed upside down. Darby described the accident at trial:
I guess, what I remember is, I was just driving down the road. Caz came, came up and he was fiddling with the radio, and then when he started going back, I looked back, and when I looked forward, there was the approach, and then that's all I remember. Because, I looked back and looked forward, and by that time we were in the ditch and already on the approach. And I—I remember trying to hit the brakes, but there was—I didn't that's all I remember about it. That I tried to stop and I couldn't.
[¶ 11.] As a result of the accident, Caz was pinned between the seats and the roof of the van, which had been pushed together by the accident. He was not able to move. Summer Cousins, who was in the van with Caz, testified that after the accident, she and Caz were trapped in the van. She saw that Caz was trapped by the seats, and she tried to push the seats to get them to move. She also testified that Caz was struggling to breathe.
[¶ 12.] Another vehicle leaving the party arrived just after the accident. One of the passengers in that car, Dana Fisher, testified that the boys she was riding with She went on to explain that Caz:
[W]as not able to get out. They said he was stuck. He was still alive at that point. He was—a couple of the guys had, like, squeezed his hand and he squeezed back. But there just wasn't anything that they could do to, like, move—get the van off of him or anything.
Clayton Peters, another passenger in the car, testified that after he unsuccessfully attempted to lift the vehicle:
There really wasn't much for us to do, and I didn't want to leave [Caz] there by himself, because if it was me, I wouldn't want to be by myself. So I grabbed his hand, he was squeezing my hand. And I put my hand on his stomach, and I crawled over to see his face and his eyes were still open. And I didn't like the sight of that, so I backed up, and I just waited for everything to go. I didn't know what else to do.
Caz's friends could not get him free. He was trapped in the van, and he ultimately died from suffocation. Clayton indicated that he had felt Caz's last breath, and that from the time of the accident until Caz's last breath was "maybe a few minutes."
[¶ 13.] A highway patrolman arrived at the scene of the accident shortly after it happened. Trooper Pete Eng spoke to Darby. After waiving his Miranda rights, Darby told Eng that he had been consuming alcoholic beverages. A preliminary breath test conducted at the scene revealed that Darby had a .103 breath/alcohol test. This test was administered approximately four hours after Darby left the Haases'.
[¶ 14.] Darby was taken to a hospital, where three blood samples were taken one hour apart. The results of those tests revealed blood alcohol contents of .118, .10, and .08 percent. From those tests and his observations, Eng opined that at the time of the accident, Darby "was under the influence of an alcoholic beverage."
[¶ 15.] Following the accident, Welch brought wrongful death and survival actions against Darby Klein, Earla Klein, and the Haases. Both Darby and Earla Klein failed to answer, and appeared throughout trial in default. The trial court instructed the jury that the Kleins admitted both negligence and proximate cause.2 The trial court also instructed that the contributory negligence and assumption of the risk defenses were available to the Haases,3 but not the Kleins. The trial court ultimately instructed the jury that the Kleins,
[¶ 16.] Although there was no dispute that Haases provided no alcohol at...
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