Wolf v. Graber, 13180

• Citation: 303 N.W.2d 364
• Decision Date: 18 March 1981
• Docket Number: No. 13180,13180
• Parties: Daisy WOLF, Plaintiff and Appellant, v. Ellery and Nancy GRABER, d/b/a The Milk Bottle, Defendants and Appellees.
• Court: Supreme Court of South Dakota

Page 364

303 N.W.2d 364

Daisy WOLF, Plaintiff and Appellant, v. Ellery and Nancy GRABER, d/b/a The Milk Bottle, Defendants and Appellees.

No. 13180.

Supreme Court of South Dakota.

Argued Jan. 13, 1981.

Decided March 18, 1981.

Thomas W. Parliman of Parliman & Parliman, Sioux Falls, for plaintiff and appellant.

Laird Rasmussen of Dana, Golden, Moore & Rasmussen, Sioux Falls, for defendants and appellees.

HENDERSON, Justice.

ACTION

This is an appeal by Daisy Wolf (appellant) from a judgment of the trial court in favor of Ellery Graber and Nancy Graber, d/b/a The Milk Bottle (appellees), following, and consistent with, a jury verdict. Appellant had sought damages under a theory of negligence. We reverse and remand for a new trial.

FACTS

At the time of trial, appellant was an 86-year-old widow living in Sioux Falls. Appellees owned and operated a retail dairy-grocery business also located in Sioux Falls. The store building itself was leased to appellees. There are two entrances to the store: one in front facing the street and sidewalk, and another in the rear, which is used primarily as a service entrance. The During the afternoon of August 4, 1978, appellant approached the front entrance of the store in anticipation of shopping therein, as she had done on several previous occasions. Prior to entering the store, appellant noticed a workman near the front entryway holding a paint brush and bucket of paint. She also saw a sawhorse facing the street near the front door. Appellant testified as follows: "I went toward the store, and I was going to go in and I approached the door, and a man said, you can't go in that way, the painter said that. I said, why. He said, I'm painting. You'll have to go around to the back door and go in that way."

rear door swings inward; immediately inside, there are six steep steps heading down to the rear level of the store.

Accordingly, appellant went around to the back of the store and opened its rear door. She had never previously used this rear entrance and was totally unfamiliar with the doorknob, door, and steps. Appellant testified at trial that as the door opened, she was unable to see inside the store. Appellant maintains that as the door swung open, it pulled her in and caused her to land on her left side and back upon the wooden, floor at the bottom of the stairs. As a result of this fall, appellant sustained a compound fracture of her left shoulder. Appellant was carrying her purse and a shopping bag when the incident occurred. Sometime before the arrival of appellant at the store, appellees had received a delivery at the rear entrance. Neither appellees nor their employees checked to see if the rear door was locked subsequent to the delivery. It was a general policy of appellees to keep the rear door locked.

On the day of appellant's injury, the store was being plastered and stuccoed by Richard Bonrud and his crew at the request of the owner of the building (appellee's landlord). Approximately three workmen were assisting Bonrud. Bonrud testified that on the day of the accident, after he had told Mary Brown (an employee of appellees and the mother of appellee Nancy Graber) that the front entrance of the store would be blocked off for about 30-45 minutes, she told him to direct customers to the rear entrance. Bonrud also testified, however, that to his knowledge, none of his employees instructed appellant to use the rear door. Mary Brown and Vivian Busch, also a store employee, both testified that they did not tell Bonrud or any of his crew to direct customers to the rear of the store. In any event, a factual question was created on this issue.

In June of 1978, a sign saying WATCH YOUR STEP was removed by workmen from the wall near the rear door due to some remodeling. This sign was never replaced.

ISSUE

Based upon the evidence presented, did the trial court erroneously instruct the jury? We hold that it did and our reasons are detailed below.

DECISION

A trial court is to present only those issues to the jury by way of instruction which find support by competent evidence in the record. Olesen v. Snyder, 277 N.W.2d 729 (S.D.1979); Miller v. Baken Park, Inc., 84 S.D. 624, 175 N.W.2d 605 (1970), mod. 84 S.D. 133, 178 N.W.2d 560 (1970). A trial court's refusal to give a requested instruction setting forth the applicable law constitutes prejudicial error. Miller v. Baken Park, Inc., supra.

Appellant contends that the trial court erred in refusing to accept her Proposed Jury Instruction No. 1, which reads:

More than one person may be responsible for causing injury to another. If you find that the defendant was negligent and that his negligence was a proximate cause of the accident involved herein, it is not a defense that some third person, not a party to this action, was or may have been partly responsible. Therefore, if you find the defendant was negligent, and that but for his negligence the accident would not have happened, he cannot be relieved of any liability to the plaintiff by claiming that somebody else, not a party to this action, was in part at fault.

This instruction is from South Dakota Pattern Jury Instructions, Volume 1, § 12.04, the comment to which reads:

This instruction should be given only when there might be a basis for a contention that a third person, not a party, was in part at fault for the accident or injury. When the parties include all who may be responsible, the situation will be covered in other instructions. This instruction should not be used where the third person was acting as the agent to the defendant.

Although Bonrud was originally named a party defendant, a judgment of dismissal was entered approximately three months before trial which severed Bonrud's legal adhesion to this case.

We believe the evidence presented in this case warrants the submitting of appellant's Proposed Instruction No. 1. As previously indicated under FACTS, supra, there was evidence presented to the jury which indicated that a third party (Bonrud or one of his workmen) may have been concurrently negligent in causing appellant's injuries. Indeed, appellees relied upon the negligence of this third party in attempting to persuade the jury that appellees were not negligently responsible for appellant's injury. This is evidenced by the closing and damaging argument of appellees' counsel, where he stated to the jury:

If, in fact, there hadn't been (a conversation between appellees' employees and Bonrud or his workmen) maybe Mr. Bonrud or his employee are the real parties responsible for this whole thing.... (W)hat's happened there is that unfortunately (appellant) and her counsel have sued the wrong party .... Maybe that individual who was out there directing traffic, if you will, to the back door maybe that's really the culprit in this whole thing. And, you see, except for that direction this whole thing would never have happened and we wouldn't be here.

The facts of this case justified an instruction on concurrent negligence. Accordingly, we hold that the trial court erroneously rejected appellant's Proposed Instruction No. 1.

Secondly, appellant contends that the trial court, by submitting Instruction No. 17 to the jury, erroneously required her to prove that appellees' negligence was the sole proximate cause of her injury. Jury Instruction No. 17 (emphasis supplied) provides:

If you find that the defendants were negligent and that defendants'...