#25578-rev & rem-JKK

2011 S.D. 6

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                  * * * *

BOB COOPER,                                 Plaintiff and Appellant,

v.

MALLORIE RANG,                              Defendant and Appellee.

                                  * * * *

                  APPEAL FROM THE CIRCUIT COURT OF
                    THE FOURTH JUDICIAL CIRCUIT
                  LAWRENCE COUNTY, SOUTH DAKOTA

                                  * * * *

                       HONORABLE RANDALL L. MACY
                                 Judge

                                  * * * *

CHARLES ABOUREZK
REBECCA KIDDER of
Abourezk Law Firm, PC                       Attorneys for plaintiff
Rapid City, South Dakota                    and appellant.

ROBERT L. MORRIS of
Day Morris Law Firm, LLP                    Attorneys for defendant
Belle Fourche, South Dakota                 and appellee.

                                  * * * *

                                            CONSIDERED ON BRIEFS
                                            ON OCTOBER 4, 2010

                                            OPINION FILED 02/09/11
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KONENKAMP, Justice

[¶1.]        Plaintiff was stopped at a stop sign at the bottom of an icy hill.

Defendant knew the roads were slippery and saw plaintiff’s vehicle, but did not

apply her brakes in time to prevent her car from sliding into the rear of plaintiff’s

minivan. At trial, the plaintiff moved unsuccessfully for a judgment as a matter of

law on defendant’s negligence, and the jury returned a verdict for defendant.

Because there was no issue of contributory negligence and no claim of legal excuse

for failure to stop, the circuit court erred in not granting plaintiff’s motion. We

reverse and remand.

                                     Background

[¶2.]        On January 31, 2003, Bob Cooper stopped his minivan at a stop sign at

the bottom of a hill in Lead, South Dakota. The roads were icy. As Mallorie Rang

drove down the same hill she saw Cooper’s van from about fifty feet ahead. She

applied her brakes when she was halfway down the hill, fifteen to twenty feet from

Cooper’s van. But she was unable to stop. Her car slid on the ice and rear ended

Cooper’s vehicle. At the time of the collision, Rang estimated her speed at five to

ten miles per hour. Cooper had his foot on the brake pedal and his head turned to

see past a snow bank. He did not see Rang’s car coming behind him. He was taken

by ambulance to the hospital. Over the next several years, he received medical

treatment for neck, arm, and knee pain.

[¶3.]        Cooper brought suit against Rang, alleging negligent failure to keep a

proper lookout and failure to use reasonable care in the operation of her vehicle. He

claimed to have incurred $97,961.79 in medical expenses. During the jury trial, at

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the close of the evidence, Cooper moved for a directed verdict — now called a

judgment as a matter of law — on the issue of Rang’s negligence. He contended

that Rang admitted the accident was her fault in a deposition and during cross

examination at trial. Rang was asked during her deposition: “Was the accident

your fault?” She replied, “I believe it was partly, and, you know, the roads weren’t

in great conditions.” At trial she was asked, “So you admitted it was part your

fault, but partly the road’s fault?” Rang replied, “Yeah.” The court denied Cooper’s

motion.

[¶4.]         The jury returned a verdict for Rang. Cooper moved for a judgment

notwithstanding the verdict — now called a renewed motion for judgment as a

matter of law. See SDCL 15-6-50(b). He asserted that absent contributory

negligence or legal excuse, the jury’s verdict was insupportable. The court denied

the motion. In this appeal, Cooper asserts, among other things, that the court

abused its discretion when it failed to grant a judgment as a matter of law on

negligence. 1 Cooper’s additional assignments of error lack sufficient merit for

discussion.

                               Analysis and Decision

[¶5.]         A judgment as a matter of law is appropriate when “a party has been

fully heard on an issue and there is no legally sufficient evidentiary basis for a


1.      We review a court’s denial of a motion for a judgment as a matter of law
        under the abuse of discretion standard. Steffen v. Schwan’s Sales Enter.,
        Inc., 2006 S.D. 41, ¶ 7, 713 N.W.2d 614, 617 (citations omitted). We similarly
        review a court’s ruling on a judgment notwithstanding the verdict for an
        abuse of discretion. Schwartz v. Morgan, 2009 S.D. 110, ¶ 7 n.1, 776 N.W.2d
                                                                   (continued . . .)

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reasonable jury to find for that party on that issue[.]” SDCL 15-6-50(a). In this

case, the jury heard evidence that when Rang was approximately fifty feet away she

noticed Cooper’s van stopped at a stop sign. She knew the roads were icy when she

began to brake halfway down the hill, fifteen to twenty feet away from Cooper. She

started to slide, could not stop, and struck Cooper’s minivan. Rang never claimed

that Cooper was contributorily negligent or that the icy roads legally excused her

duty to stop.

[¶6.]           In the court’s Instruction 15, the jury was told that a driver has “a

duty to exercise reasonable care under the circumstances and keep a lookout for

other users of the highway and to maintain control of the vehicle so as to be able to

stop or otherwise avoid an accident within that person’s range of vision.” On Rang’s

testimony alone, there was no legally sufficient evidentiary basis for the jury’s

verdict. Cooper was in Rang’s range of vision from at least fifty feet away, yet she

did not “maintain control of the vehicle so as to be able to stop or otherwise avoid an

accident” with Cooper. Rang made no claim that Cooper contributed to her failure

to stop her vehicle or otherwise avoid the accident. Dartt v. Berghorst, 484 N.W.2d

891, 894-95 (S.D. 1992); Albers v. Ottenbacher, 79 S.D. 637, 643, 116 N.W.2d 529,

532 (1962).

[¶7.]           In a recent case, we reversed a trial court’s denial of a judgment as a

matter of law because the defendant admitted he struck the plaintiff’s vehicle after



__________________
(. . . continued)
         827, 829 n.1 (citations omitted). In doing so, we view the evidence and
         testimony in a light most favorable to the verdict. Id.

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he miscalculated the distance between his car and the plaintiff’s. Christenson v.

Bergeson, 2004 S.D. 113, ¶ 27, 688 N.W.2d 421, 428. Christenson was turning right

and stopped suddenly because of a bicyclist. Bergeson did not see the bicyclist, but

admitted that he saw Christenson stop. He then “misjudged the distance and as a

result his passenger side mirror struck the tail end of Christenson’s pickup leaving

a small dent.” Id. ¶ 2, 688 N.W.2d at 424. Bergeson argued that Christenson was

contributorily negligent. At the close of the evidence, Christenson moved for a

judgment as a matter of law on the issue of Bergeson’s negligence and her

contributory negligence. The court denied the motion and the jury returned a

verdict for Bergeson. Despite the claim of contributory negligence, we held that

“[t]he jury’s verdict is clearly against the evidence presented in the record. It was

not plausible for the jury to have accepted Bergeson’s account and found he had not

breached his duty of care to Christenson.” Id. ¶ 27, 688 N.W.2d at 428.

[¶8.]        Similarly, in Klarenbeek v. Campbell, we held that the trial court

abused its discretion when it failed to grant a judgment as a matter of law on the

defendant’s negligence. 299 N.W.2d 580, 581 (S.D. 1980). Campbell was backing

his vehicle out of his parking space and struck Klarenbeek’s vehicle, which was

stopped at a driveway that exited onto a road. Id. at 580-81. Campbell testified

that he looked over his shoulder and into his rearview mirror to assure himself that

no traffic was present before he began backing up. He explained that he did not see

Klarenbeek’s vehicle, although he admitted his eyesight was such that he was

required to have an outside mirror, a mirror he did not use while backing up. The

jury returned a verdict in favor of Campbell, and Klarenbeek appealed. We wrote


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“that the evidence in this case is so clearly onesided that reasonable minds could

reach no conclusion other than that the negligence of Campbell in failing to

maintain an adequate lookout was the sole proximate cause of the accident[.]” Id.

at 581. “Klarenbeek’s vehicle was stationary. She was waiting to enter traffic on

Minnesota Avenue. Her duty to maintain a lookout was fulfilled. Campbell, on the

other hand, was engaged in backing his automobile; his duty to maintain an

effective lookout was just beginning.” Id. And the record contained no evidence

that Klarenbeek was contributorily negligent.

[¶9.]         Our cases dealing with unavoidable accident situations in winter road

conditions are instructive. 2 In Plucker v. Kappler, we wrote that an unavoidable



2.      Although not directly on point, Baddou v. Hall, 2008 S.D. 90, 756 N.W.2d 554
        is nonetheless informative. In that case, two drivers were proceeding in the
        same direction on the same street. Both were driving the speed limit. The
        defendant testified that she was one-car length away from the plaintiff. She
        slowed near a school area and looked left for children that may be crossing or
        darting into the road. She did not notice that the plaintiff had stopped to
        make a left-hand turn, with his left-turn signal activated. By the time
        defendant looked forward and saw plaintiff stopped, she could not stop her
        vehicle without striking plaintiff’s rear bumper. The jury found for defendant
        on the issue of negligence. Plaintiff appealed and we affirmed. Although
        plaintiff was legally stopped when defendant rear ended him, we held that
        the issue of defendant’s reasonableness was directly at issue and the jury
        could have found her actions reasonable. As defendant testified, she was
        driving at a reasonable speed and was a safe distance away from plaintiff’s
        vehicle while following him for approximately three blocks. She also claimed
        it was reasonable for her to look left for children in a school area. That
        plaintiff stopped to make a left-hand turn, which defendant did not see until
        it was too late, was also relevant. In contrast, here, Rang saw Cooper stopped
        at a stop sign when she was about fifty feet away. She knew the roads were
        icy. Nonetheless, Rang did not attempt to stop her car until she was about
        fifteen to twenty feet away from Cooper. The collision, therefore, was because
        of Rang’s failure to maintain her vehicle so as to not strike Cooper’s, unlike in
        Baddou, where the plaintiff unexpectedly stopped and the defendant’s actions
        were found reasonable.

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accident instruction is appropriate in cases where the “‘element of ‘surprise’ is

present such as the sudden and unexpected presence of ice, the blowout of a tire, the

malfunction of brakes, or other mechanical failure.’” 311 N.W.2d 924, 925 (S.D.

1981) (quoting Cordell v. Scott, 79 S.D. 316, 323, 111 N.W.2d 594, 598 (1961);

Herman v. Spiegler, 82 S.D. 339, 342, 145 N.W.2d 916, 917 (1966); cf. Del Vecchio v.

Lund, 293 N.W.2d 474 (S.D. 1980)). Because Kappler testified that she knew of the

ice before she reached the intersection, the instruction was unwarranted as the

presence of ice at the intersection should not have come as a surprise to her. Then,

in Dartt, we found “insufficient evidence” to justify a jury’s finding of a sudden

emergency to excuse Berghorst’s negligence. 484 N.W.2d at 896-97. An emergency

must not be of one’s own making. Id. Because Berghorst was aware of the road

conditions, the element of surprise was negated and his negligence could not be

legally excused.

[¶10.]         Here the record contains no evidence that anything other than Rang’s

failure to stop her vehicle or otherwise control it caused the accident. 3 See

Carpenter v. City of Belle Fourche, 2000 S.D. 55, ¶ 14, 609 N.W.2d 751, 759. No

unavoidable accident instruction was given or requested, nor was the jury

instructed that Rang’s negligence could be legally excused. Rang owed a duty of

care to Cooper to maintain control of her vehicle, a duty she breached. Even if we

ignore Rang’s partial admission of fault, no reasonable jury could have accepted



3.       In Nichols v. Morkert, this Court upheld a jury verdict of no negligence on
         similar facts. 85 S.D. 384, 386, 182 N.W.2d 324, 325 (1971). Yet in recent
         decisions we have cast doubt on Nichols. Steffen, 2006 S.D. 41, ¶ 15, 713
         N.W.2d at 620; Weber v. Bernard, 349 N.W.2d 51, 54 n.1 (S.D. 1984).

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Rang’s account of the accident and concluded that she did not breach her duty of

care. Rang offered no non-negligent explanation for her rear end collision. See

Christenson, 2004 S.D. 113, ¶ 26, 688 N.W.2d at 428. As in Klarenbeek, “this case is

so clearly onesided that reasonable minds could reach no conclusion other than

that” Rang was negligent. See 299 N.W.2d at 581. We reverse and remand for

entry of judgment for Cooper on Rang’s negligence and for a new trial on legal

(proximate) cause and damages.

[¶11.]      Reversed and remanded.

[¶12.]      GILBERTSON, Chief Justice and ZINTER, MEIERHENRY, and

SEVERSON, Justices, concur.




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