#30309, #30311-a-MES
2025 S.D. 9
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
…
TODD WEILAND, Plaintiff and Appellant,
v.
PATRICK BUMANN, Defendant and Appellee.
…
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
…
THE HONORABLE SANDRA H. HANSON
Judge
…
MICHAEL D. BORNITZ
ABIGALE M. FARLEY of
Cutler Law Firm, LLP
Sioux Falls, South Dakota Attorneys for plaintiff and
appellant.
MELANIE L. CARPENTER
JAKE R. SCHNEIDER of
Woods, Fuller, Shultz & Smith, P.C.
Sioux Falls, South Dakota Attorneys for defendant and
appellee.
…
ARGUED
MARCH 19, 2024
OPINION FILED 02/19/25
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SALTER, Justice
[¶1.] Todd Weiland commenced this personal injury action against Patrick
Bumann seeking damages for injuries sustained in a motor vehicle accident that
occurred while Bumann was on duty as a trooper with the South Dakota Highway
Patrol (SDHP). The circuit court denied Weiland’s motion for partial summary
judgment on the issues of negligence, contributory negligence, causation, and
failure to mitigate damages, and the case was tried to a jury. The court also denied
Bumann’s pretrial request to apply a recklessness standard, rather than ordinary
negligence.
[¶2.] At trial, Weiland sought to admit the Minnehaha County Sheriff’s
Department accident report, materials from the SDHP’s investigation, internal
SDHP policies, and representations allegedly made by Bumann’s insurance
adjuster. The court excluded the accident report and evidence of the insurance
adjuster’s representations and made certain redactions to the SDHP investigation
materials. The court also precluded Weiland from making a per diem argument to
the jury regarding non-economic damages.
[¶3.] The jury found Bumann was negligent, but also concluded Weiland
was contributorily negligent, although not more than slight. The jury awarded
Weiland a total of $18,661.50 in damages.
[¶4.] Weiland appeals, challenging the circuit court’s adverse rulings. By
notice of review, Bumann challenges the standard of care the circuit court applied
and the denial of his motion for judgment as a matter of law on certain future
damages. We affirm.
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Factual and Procedural Background
[¶5.] Weiland and Bumann were involved in a car accident on November 10,
2017, south of Humboldt in Minnehaha County. Weiland works as a chiropractor at
the Ortman Chiropractic Clinic in Canistota and was traveling east on Highway 42
toward his home in Sioux Falls. At that same time and location on Highway 42,
Bumann was driving west, performing his duties as a SDHP trooper in his issued
patrol vehicle. Bumann was in a no-passing zone and was driving behind two large
vehicles pulling trailers. The speed limit at that location on Highway 42 is 65 miles
per hour.
[¶6.] Bumann observed an eastbound vehicle with expired license plates
traveling in excess of the posted speed limit. He activated the emergency lights on
his patrol vehicle and prepared to make a U-turn to pursue the eastbound vehicle
and initiate a traffic stop. Because his view was obstructed by the two vehicles in
front of him, Bumann veered onto the north shoulder of the highway, looked to see
if any oncoming vehicles were approaching, and began making a U-turn.
[¶7.] Approximately halfway through the turn, Bumann noticed Weiland’s
vehicle coming toward him in the eastbound lane. By Bumann’s estimation,
Weiland’s vehicle was 150 feet away. Bumann attempted to accelerate forward into
the south ditch to avoid impact, but there was not enough time to avert the collision
entirely. The front right corner of Weiland’s vehicle collided with the right rear end
of Bumann’s vehicle. As related by Bumann, the collision caused him to be “pushed
forward. . . . Approximately a foot.” The vehicles did not flip or spin, and no airbags
deployed.
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[¶8.] After Weiland pulled to the side of the road, Bumann approached
Weiland’s vehicle and spoke with him. Both men stated they were uninjured, and
neither called an ambulance.
[¶9.] Bumann reported the accident and Minnehaha County Deputy Sheriff
Tyrone Albers arrived at the scene and completed an accident report. However,
Deputy Albers did not conduct an accident reconstruction, and his report was based
on each parties’ explanation of the event. Deputy Albers’s report identified
Bumann’s failure to yield as the only contributing circumstance and stated that
Weiland was driving the speed limit. The narrative in Deputy Albers’s report
stated, “[a] semi and trailer obstructed [Bumann’s] view to the west and he did not
see oncoming vehicle 1 [Weiland].”
[¶10.] The SDHP investigated the accident to determine whether to discipline
Bumann. Sergeant Steven Schade, Bumann’s immediate supervisor, determined
that Bumann violated SDHP safety policies and that the accident was preventable.
Sergeant Schade recommended that Bumann receive a reprimand.
[¶11.] Weiland brought suit against Bumann 1 in March 2020, asserting six
claims: 1) negligence, 2) negligence per se – careless driving (SDCL 32-24-8), 3)
negligence per se – improper U-turn (SDCL 32-26-25), 4) negligence per se – illegal
lane change (SDCL 32-26-6), 5) negligence per se – unsafe turning (SDCL 32-26-22),
and 6) negligence per se – reckless driving (SDCL 32-24-1). Bumann denied
1. Weiland also named the SDHP, but the circuit court granted the SDHP’s
motion for summary judgment on the basis of sovereign immunity. That
decision is not before us in this appeal. Weiland later amended his complaint
to assert claims solely against Bumann.
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liability and causation, and alleged failure to mitigate damages and contributory
negligence as affirmative defenses.
[¶12.] Weiland moved for partial summary judgment on the issues of
negligence and causation and on Bumann’s affirmative defenses of contributory
negligence and failure to mitigate damages. Following a hearing, the circuit court
denied the motion, concluding that “fact issues exist which preclude the grant of
partial summary judgment on the issues of negligence, causation, contributory
negligence, and failure to mitigate[.]”
[¶13.] Prior to trial, Weiland moved to admit testimony from Blake Dykstra
who was working as a claims adjuster on behalf of Bumann. Dykstra allegedly told
Weiland he could not submit bills from Ortman Clinic because Weiland worked
there. Weiland claims he complied and that this, in turn, affected how the records
of Weiland’s treatments were kept. Weiland also sought admission of the SDHP’s
“[p]olicy manual and/or [Bumann’s] training materials” and Sergeant Schade’s
report. Bumann, however, sought to exclude Sergeant Schade’s report and the
SDHP policies it referenced. Bumann also moved to preclude Weiland from making
a per diem argument for non-economic damages.
[¶14.] The circuit court denied Weiland’s request to call Dykstra, but
instructed the parties they were “prohibited from criticizing the recordkeeping
practices of the Ortman Clinic[.]” The court also granted Bumann’s request to
preclude Weiland from making a per diem argument.
[¶15.] On the topic of the SDHP report, the circuit court allowed evidence of
certain SDHP policies and procedures “to the extent such information does not seek
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to usurp the functions of the court or the jury and is otherwise admissible in
keeping with the rules of evidence.” The court also allowed Sergeant Schade’s
SDHP report but ordered certain redactions to remove determinations that Bumann
violated SDHP policy, including the specific conclusion: “This would be a violation of
South Dakota Highway Patrol Policy which states [a] . . . vehicle shall not be driven
in a careless manner at any time. If Trooper Bumann would have waited and been
able to get a better view of oncoming traffic he could have avoided the collision.”
[¶16.] Prior to trial, Bumann argued that to establish liability, Weiland had
to establish Bumann was reckless, relying on SDCL 32-31-1, -2, and -5, which
address the application of traffic regulations to drivers of authorized emergency
vehicles. Weiland opposed the request, however, and the circuit court concluded
that the proper standard of care was ordinary negligence.
Trial evidence regarding liability
[¶17.] At trial, Bumann testified about how the accident developed, and the
jury also watched the SDHP vehicle’s dash camera video that included footage of
the moments before, during, and immediately after the accident. Bumann admitted
that he could have prevented the accident if he had been more cautious and had
waited longer to check for oncoming traffic. He also acknowledged that he told his
supervisor that it was “100 percent my bad” and that he received a reprimand as a
result of the accident.
[¶18.] Weiland testified about how the accident developed from his
perspective. He said he was driving home from work when “all of a sudden a car
was right in front of me, a police car was right in front of me. Like, it just dropped
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out of nowhere. Slammed on the brakes. (Claps hands.) Boom.” He stated, “There
was no time to think or react. All I did was brace myself, slam on the brakes, and it
happened almost immediately.” Weiland acknowledged he was traveling around 68
miles per hour or “[m]aybe a touch more. I would normally drive at the speed limit
or just - - just near it.”
[¶19.] As the responding law enforcement officer, Deputy Albers also testified
at trial. Summarizing the accident, he stated, “because of the tractor trailer that
was in front of him, [Bumann] didn’t see the oncoming vehicle that was driven by
Mr. Weiland. And he pulled out in front of him to go eastbound.” Deputy Albers
also indicated that Bumann never suggested Weiland was at fault.
[¶20.] Following Deputy Albers’s testimony, Weiland made an offer of proof
for the previously excluded accident report and argued that the report would satisfy
the business records exception to the rule against hearsay. The court again
concluded the accident report was inadmissible, explaining, “[it] does not appear
that there has been adequate foundation laid for the same to qualify under Rule
803(6) for regularly conducted business activity records or public records under
[subsection] (8).”
[¶21.] Sergeant Schade testified that Bumann suggested he was at fault “a
hundred percent.” Sergeant Schade confirmed that Bumann never blamed Weiland
for the accident. In addition, Sergeant Schade explained how SDHP troopers
accumulate safe driving miles while on duty and that Bumann acknowledged he
was likely going to lose his safe driving miles. Sergeant Schade testified that as a
result of the accident, he recommended a reprimand for Bumann.
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[¶22.] Bumann’s expert witness, Dr. Jerry Ogden, a civil and mechanical
engineer, completed an engineering analysis of the accident, which included an
examination of information from the event data recorder (EDR) located in Weiland’s
car. Dr. Ogden found that roughly five seconds prior to the accident, Weiland was
driving 69 miles per hour in a 65 mile-per-hour zone. He explained that the damage
on the front right corner portion of Weiland’s vehicle was approximately 15 inches
in length. Dr. Ogden also described the changes in the cars’ velocities, the force felt
by each respective car, and the effect on the person in each vehicle. In short, Dr.
Ogden characterized the accident in unremarkable terms as “a scraping incident.”
In his opinion, the accident involved a low-impact collision that would have felt like
“bumper cars” or the resulting impact “[i]f you pulled into your garage and hit the
right front corner of your car pulling in at 7 miles per hour[.]”
Trial evidence regarding damages
[¶23.] Weiland testified that he started to develop pain within an hour of the
accident. He said he started chiropractic and massage therapy appointments soon
after the accident and later obtained treatment from medical doctors. Weiland
testified about the types of modalities and equipment he used to reduce his pain and
described how the injury affected his work and personal life, acknowledging that he
tried to continue with regular activities and hobbies even though they may have
been painful.
[¶24.] Weiland received chiropractic treatment from a chiropractic partner,
who testified that following the accident, Weiland had “[c]onsistent muscle
tightness, tone, taut fibers, hypertonicity, [and] guardedness.” However, Weiland’s
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partner also noted that Weiland participated in strenuous activities after the
accident, including carrying buckets of sand, sledding, and shoveling, and
participated in various sporting activities. Weiland also treated with another
chiropractor who recommended chiropractic and massage treatment to address
Weiland’s “[n]eck pain, headaches, back pain, [and] mid back pain[.]”
[¶25.] After massage and chiropractic treatments were unsuccessful, Weiland
sought medical treatment from Christopher Janssen, M.D., who specializes in
physiatry. Weiland reported that his symptoms became worse with “overhead
activity, golfing, raising his arms over his head, and really almost any kind of
prolonged activity.” Dr. Janssen diagnosed Weiland with “whiplash associated
disorder, cervical facet pain, and cervical myofascial pain.” Although Weiland had
“[r]elatively mild degenerative change of the cervical spine,” predating the accident,
Dr. Janssen opined this was not the cause of Weiland’s pain.
[¶26.] Initially, Dr. Janssen “recommended some physical therapy to try to
strengthen up and balance the muscles around the spine.” Dr. Janssen testified the
physical therapy “didn’t give [Weiland] any long-standing relief,” and he, therefore,
administered trigger point injections to treat Weiland.
[¶27.] When those injections failed to help Weiland, Dr. Janssen referred him
to Timothy Metz, M.D., who performed medial branch blocks and radiofrequency
ablations on Weiland. 2 Dr. Janssen testified that the radiofrequency ablations were
2. Dr. Janssen explained that a medial block involves injecting numbing
medication next to a nerve which “will deaden the nerve for a period of time.”
The process allows doctors to identify the pain-causing nerve and, in some
instances, burn it in an ablation procedure.
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effective in treating Weiland’s pain and that Weiland could continue to undergo
these procedures “[a]s long as they continue to work.”
[¶28.] On cross-examination, Bumann questioned Dr. Janssen about
Weiland’s compliance with his physical therapy program. Dr. Janssen testified that
Weiland—while still working through his physical therapy regimen—helped clean
up after a tornado, helped lay flooring at his parents’ house, ran a chainsaw, and
lifted logs and branches. Dr. Janssen acknowledged entries in Weiland’s physical
therapy records, in which he stated that his pain was significantly reduced after
completing stretches and exercises, but Weiland reportedly gave himself an F grade
for follow-through on his home exercises.
[¶29.] Bumann called Walter Carlson, M.D., as an expert witness. Dr.
Carlson is a retired orthopedic surgeon who performed an independent medical
examination (IME) of Weiland. In Dr. Carlson’s opinion, Weiland suffered a
sprain/strain injury from the accident that would have healed in “a six- to 12-week
time frame with proper treatment[.]” Dr. Carlson also testified that “Weiland’s
current neck complaints are more related to his arthritis in his neck[.]”
[¶30.] Before the case was submitted to the jury, one of the jurors asked the
bailiff who would pay for an award of damages. The bailiff informed the juror that
he could not answer and that all the information the jury needed to make its
decision would be provided later on in the proceedings. Due to the juror’s question,
Weiland later sought the use of South Dakota Pattern Jury Instruction 10-20-60,
which instructs the jury not to consider whether the parties have insurance. The
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circuit court denied the instruction after finding that the issue of insurance had not
been injected into the trial.
[¶31.] In his rebuttal, Weiland called a third treating chiropractor who
testified that “even routine activities” were affected by Weiland’s pain from the
accident. Weiland’s stepson also testified in rebuttal and stated that Weiland did
not have back pain before the accident and that following the accident, he
“definitely had to limit his activities.”
[¶32.] At the close of evidence, Weiland moved for judgment as a matter of
law 3 on the issues of negligence, contributory negligence, and failure to mitigate,
and also renewed his request to allow a per diem argument for non-economic
damages. The circuit court denied both. Bumann also sought a directed verdict on
future damages and on liability, renewing his argument that recklessness and not
ordinary negligence should apply. The court also denied both of Bumann’s motions,
and the case was submitted to the jury.
[¶33.] The jury returned a verdict for Weiland. In its special verdict form,
the jury found Bumann was negligent and that his negligence was a legal cause of
Weiland’s injuries. The jury also found Weiland was contributorily negligent, but
less than slight. For its assessment of damages, the jury awarded Weiland $17,500
in non-economic damages and $1,161.50 in past medical expenses, but nothing for
3. The parties use the terms directed verdict and judgment as a matter of law
interchangeably, though the latter is the correct contemporary term used in
our rules of civil procedure. See Magner v. Brinkman, 2016 S.D. 50, ¶ 11 n.5,
883 N.W.2d 74, 80 n.5 (“In 2006, the phrases motion for directed verdict and
motion for judgment notwithstanding the verdict were changed to motion for
judgment as a matter of law and renewed motion for judgment as a matter of
law, respectively.”).
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his future medical expenses claim. Taking recoverable costs into account, the
circuit court entered judgment for Weiland in the amount of $21,122.25.
[¶34.] Weiland appeals, raising several issues, which we restate as follows:
1. Whether the circuit court erred when it denied Weiland’s
motions for summary judgment and judgment as a matter
of law regarding negligence, contributory negligence, and
failure to mitigate.
2. Whether the circuit court abused its discretion when it
excluded portions of Deputy Albers’s accident report, the
SDHP’s investigation, and alleged representations by the
claims adjuster.
3. Whether the circuit court abused its discretion when it
refused Weiland’s request to instruct the jury on the issue
of liability insurance. 4
[¶35.] Bumann raises two issues by notice of review:
1. Whether the circuit court erred when it applied an
ordinary negligence standard to Bumann.
2. Whether the circuit court erred when it denied Bumann’s
motion for judgment as a matter of law on certain future
damages.
In light of our disposition of Weiland’s issues, however, we do not reach the issues
raised by Bumann.
4. For the issues relating to the evidentiary rulings, the proposed jury
instruction, and the per diem argument, Weiland also claims that “[t]he
circuit court further erred” when it did not grant his motion for new trial.
However, Weiland has oriented his arguments solely to the legal standards
for each individual type of error and has not included a separate new trial
argument under SDCL 15-6-59(a).
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Analysis
Summary judgment and judgment as a matter of law
[¶36.] “We review a court’s denial of a motion for summary judgment under
the de novo standard of review.” DT-Trak Consulting, Inc. v. Kolda, 2022 S.D. 50,
¶ 11,
979 N.W.2d 304, 308 (citation omitted). “Summary judgment is appropriate ‘if
the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.’” Barr v. Cole,
2023 S.D. 60, ¶ 18,
998 N.W.2d 343, 349 (citation omitted).
Further, “[t]he evidence must be viewed most favorably to the nonmoving party and
reasonable doubts should be resolved against the moving party.”
Id. (citation
omitted).
[¶37.] We also apply the de novo standard of review to the circuit court’s
ruling on motions for judgment as a matter of law under SDCL 15-6-50, giving no
deference to the circuit court’s decision. Center of Life Church v. Nelson,
2018 S.D.
42, ¶ 18,
913 N.W.2d 105, 110–11 (citing Magner v. Brinkman,
2016 S.D. 50, ¶¶ 11–
13,
883 N.W.2d 74, 80–81) (describing the departure from abuse of discretion
standard of review to de novo review of motions for judgment as a matter of law).
“Then, ‘[w]ithout weighing the evidence, the court must . . . decide if there is
evidence that supports [the] verdict.’”
Id. (citation omitted). “If sufficient evidence
exists so that reasonable minds could differ, judgment as a matter of law is not
appropriate.”
Id. (citation omitted). As with our review of summary judgment
decisions, “we apply the same standard as the circuit court: we view the evidence in
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the light most favorable to the verdict or to the nonmoving party.” Id. (citation
omitted); Acuity v. Terra-Tek, LLC,
2024 S.D. 49, ¶ 13,
11 N.W.3d 96, 100.
[¶38.] Weiland challenges the circuit court’s denial of his motions for
summary judgment and judgment as a matter of law on the issues of negligence,
contributory negligence, and failure to mitigate damages. We address each in turn.
Negligence
[¶39.] Before addressing the merits of Weiland’s argument that the circuit
court should have determined Bumann’s negligence as a matter of law, we must
first consider whether a justiciable controversy remains in light of the jury’s
ultimate verdict finding that Bumann was, in fact, negligent.
[¶40.] “A case is moot when the issue presented is academic or nonexistent
and when ‘judgment, if rendered, will have no practical legal effect upon the
existing controversy.’” Hewitt v. Felderman,
2013 S.D. 91, ¶ 11,
841 N.W.2d 258,
262. Accordingly, “an appeal will be dismissed as moot where . . . the actual
controversy ceases and it becomes impossible for the appellate court to grant
effectual relief.”
Id. (omission in original).
[¶41.] On the mootness question presented in this case, our decision in Hewitt
is instructive, if not controlling:
[The plaintiff] urges this Court to find there was no legally
sufficient evidentiary basis for a reasonable jury to find for [the
defendant] on the issue of negligence. The controversy [the
plaintiff] puts before this Court—whether [the defendant] acted
negligently—was already resolved by the jury in favor of [the
plaintiff]. It becomes a purely academic exercise for this Court
to determine whether the question of negligence should have
been submitted to the jury. Because this Court has no “effectual
relief” to grant, the issue is moot.
Id. ¶ 12.
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[¶42.] The same analysis applies here. Weiland’s challenge to the circuit
court’s decision to deny his motions for summary judgment and judgment as a
matter of law on the issue of Bumann’s negligence no longer presents a live
controversy. Even if Weiland could prevail on his claim that the circuit court
should have determined Bumann’s negligence as a matter of law, which we do not
hold, we cannot grant effectual relief because the jury separately resolved the
negligence question in Weiland’s favor. 5 This issue is, therefore, moot.
Contributory negligence
[¶43.] “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.” Klutman v. Sioux Falls Storm,
2009 S.D. 55, ¶ 24,
769 N.W.2d 440, 450 (citation omitted). “There must be
competent evidence of contributory negligence before the matter may be submitted
to the jury.”
Id. (citation omitted); see also Johnson v. Armfield,
2003 S.D. 134,
¶ 13,
672 N.W.2d 478, 482 (quoting Lockwood v. Schreimann,
933 S.W.2d 856, 859
(Mo. Ct. App. 1996) (“Stating ‘[t]he causal connection between excessive speed and
5. Weiland contends that “[t]he prejudice resulting from the error in sending the
issue of Bumann’s negligence persists despite the jury’s verdict.” Citing
Davis v. Knippling, 1998 S.D. 31, ¶ 14,
576 N.W.2d 525, 529, Weiland argues
that “[p]rejudice resulting from any error may be gleaned from looking at the
entire record, including factoring in all errors.” However, Davis is not a
mootness case, and the two erroneous instructions that were at issue had a
discernable impact on the plaintiff’s recovery. Id. That is not the case here,
and, though Weiland claims that the instructions on negligence and
contributory negligence “worked in tandem to result” to reduce his recovery,
it is not clear how.
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the collision must be established by the evidence and cannot be left to mere
speculation and conjecture.’”)) (alteration in original).
[¶44.] However, we have long recognized that “questions of negligence,
contributory negligence and assumption of the risk are for the jury in all but the
rarest cases so long as there is evidence to support the issues. It is only when
reasonable [people] can draw but one conclusion from facts and inferences that they
become a matter of law and this rarely occurs.” Stone v. Von Eye Farms, 2007 S.D.
115, ¶ 6,
741 N.W.2d 767, 770 (emphasis added) (quoting Pierce v. City of Belle
Fourche,
2001 S.D. 41, ¶ 22,
624 N.W.2d 353, 357).
[¶45.] Here, we conclude there is sufficient evidence upon which the jury
could find that Weiland was contributorily negligent, and the circuit court did not
err when it denied his motions for partial summary judgment and judgment as a
matter of law. Viewing the evidence in the light most favorable to the verdict, the
jury could have reasonably found that Weiland’s own actions contributed to the
accident.
[¶46.] The width of the impact to the right front corner of Weiland’s vehicle
was narrow—just 15 inches—and Weiland himself testified that he “maybe veered
to the right because he was coming from my left.” This testimony is supported by
other evidence that indicates the collision occurred on the right shoulder of the
highway. In other words, the jury heard evidence that Bumann nearly averted the
collision entirely.
[¶47.] In addition, the EDR in Weiland’s automobile showed he was traveling
at 69 miles per hour five seconds before the collision. The speed limit in the area of
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the crash is 65 miles per hour, and Weiland admitted he was speeding when he
estimated he was driving 68 miles per hour. Though he was not asked to opine on
causation, Dr. Ogden testified about the rate of downward acceleration and said the
speed of Weiland’s vehicle fell significantly after Weiland applied the brakes.
[¶48.] Generally, “[e]vidence that a party was exceeding the posted speed
limit is sufficient to send the issue of contributory negligence to the jury.” Hoffman
v. Oakley, 647 S.E.2d 117, 122 (N.C. Ct. App. 2007). Weiland contends, however,
that the circuit court erroneously submitted the issue of the contributory negligence
to the jury “on the sole basis” that he was speeding, citing Johnson v. Armfield. In
Johnson, we reversed a verdict for a defendant who admitted his own negligence
but asserted the plaintiff had been contributorily negligent based on the defendant’s
speculative assertion that the plaintiff “must have been speeding or he wouldn’t
have pulled out onto the street in the first place[.]”
2003 S.D. 134, ¶¶ 11–13, 672
N.W.2d at 481–82.
[¶49.] In our view, Weiland’s reliance upon the result in Johnson is
misplaced because it is premised upon a parochial view of the evidence adduced at
trial. Unlike the unsubstantiated guess that the plaintiff “must have been
speeding” in Johnson, the evidence here established that Weiland was, in fact,
speeding just before the collision which, a fair view of the evidence suggests, almost
did not occur. Id. ¶ 12.
[¶50.] In his reply brief, Weiland suggests that expert testimony was
necessary to prove the causation element of Bumann’s contributory negligence,
claiming the question does not fall within the common experience and capability of
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a lay person. Though Weiland argued there was “no competent evidence” of
contributory negligence in his opening brief, he did not raise the claim that expert
testimony is required initially. For this reason, we question whether this argument
is properly before us. See Ellingson v. Ammann, 2013 S.D. 32, ¶ 10,
830 N.W.2d 99,
102 (quoting Agee v. Agee,
1996 S.D. 85, ¶ 21 n.4,
551 N.W.2d 804, 807 n.4) (“A
party may not raise an issue for the first time on appeal, especially in a reply brief
when the other party does not have the opportunity to answer.”).
[¶51.] But even if Weiland’s expert opinion argument were before us, we have
never held that expert testimony is categorically required to prove causation for
contributory negligence based on excessive speed, and we decline to do so here. We
appreciate the difficulty in determining the precise point where the laws of physics
intersect with “the common experience and capability of a lay person[,]” Matter of
Drainage Permit 11-81,
2019 S.D. 3, ¶ 42,
922 N.W.2d 263, 275, and we
acknowledge that the question presented here is a close one. But given the
particular evidence adduced at trial, we conclude that the causation issue relating
to the contributory negligence claim was within the common experience and
capability of a lay person, and there was sufficient evidence to support the jury’s
verdict finding contributory negligence. 6
6. Weiland also argues that “[a] new trial on damages is required” because the
jury was instructed to reduce the damages in proportion to Weiland’s
negligence. Leaving aside the incongruity of Weiland identifying error with
the failure to reduce a damages verdict he already views as insufficient, we
believe the argument is not persuasive because it appears to presume that
the jury did not reduce the damages. But that premise is not safe, and there
is no reason to believe the jury did not reduce the damages. The special
verdict form, submitted without objection, simply did not include a line that
(continued . . .)
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Failure to mitigate damages
[¶52.] As a general principle of damages, “a plaintiff must do all that is
reasonable to minimize damages after a tort or breach of contract has occurred[.]”
Wasland v. Porter Auto & Marine, Inc., 1999 S.D. 134, ¶ 12,
600 N.W.2d 904, 907
(quoting O’Brien v. Isaacs,
116 N.W.2d 246, 249 (Wis. 1962)).
The law imposes upon a party injured from another’s breach of
contract or tort the active duty of making reasonable exertion to
render the injury as light as possible. If, by his negligence or
willfulness, he allows the damages to be unnecessarily
enhanced, the increased loss, that which was avoidable by the
performance of his duty, falls upon him.
Ducheneaux v. Miller, 488 N.W.2d 902, 917 (S.D. 1992). “The burden of proving
that damages would have been lessened by the exercise of reasonable diligence on
the part of the claimant is on the party that caused the damages.” Mash v. Cutler,
488 N.W.2d 642, 648 (S.D. 1992).
[¶53.] Bumann asserted that Weiland failed to mitigate his damages, arguing
that Weiland did not properly follow through with some treatments and that he had
participated in some activities that would have exacerbated any alleged injury.
Weiland sought summary judgment and judgment as a matter of law on these
claims, and the circuit court denied these motions. On appeal, Weiland argues
________________________
(. . . continued)
would have shown the amount of a reduction. The instruction was otherwise
correct and consistent with SDCL 20-9-2’s requirement that “the damages
shall be reduced in proportion to the amount of plaintiff’s contributory
negligence.” See State v. Ralios, 2010 S.D. 43, ¶ 47,
783 N.W.2d 647, 660
(noting the general rule that presumes that juries follow a trial court’s
instructions).
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“Bumann failed to present the requisite competent evidence Dr. Weiland’s conduct
was unreasonable and the proximate cause of further injury.”
[¶54.] Our review of the record leads us to conclude there was sufficient
evidence to submit this issue to the jury. The jury heard evidence that following the
accident, Weiland participated in various activities, some of which could be viewed
as physically strenuous. For instance, following a tornado in 2019, Weiland
completed yard cleanup where he “was running a chainsaw and lifting logs and
branches[.]” Further, the jury heard testimony that since the accident, Weiland
moved furniture and participated in recreational axe throwing.
[¶55.] And by his own admission, Weiland’s physical therapy follow-through
was poor. As part of his prescribed physical therapy, Weiland was instructed to
complete home exercises, but his medical records stated that he graded his effort as
an “F follow through per home exercise due to work schedule.” Additional
corresponding evidence suggested that Weiland felt better when he did complete
certain stretches, exercises, and swimming.
[¶56.] Under the circumstances, we cannot accept Weiland’s argument that
the circuit court erred when it denied his motions for summary judgment and
judgment as a matter of law on Bumann’s failure to mitigate damages defense. His
specific claim that “Bumann failed to present the requisite competent evidence Dr.
Weiland’s conduct was unreasonable and the proximate cause of further injury” is
contrary to the evidence in the record.
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Evidentiary issues
[¶57.] “A circuit court’s ‘evidentiary rulings will not be overturned absent a
clear abuse of discretion.’” Sedlacek v. Prussman Contracting, Inc., 2020 S.D. 18,
¶ 16,
941 N.W.2d 819, 822 (citation omitted). “An abuse of discretion ‘is a
fundamental error of judgment, a choice outside the range of permissible choices, a
decision, which, on full consideration, is arbitrary or unreasonable.’” Weber v.
Weber,
2023 S.D. 64, ¶ 15,
999 N.W.2d 230, 234 (citation omitted).
[¶58.] “We review a circuit court’s evidentiary rulings by utilizing a ‘two-step
process.’” Sedlacek,
2020 S.D. 18, ¶ 16,
941 N.W.2d at 822 (citation omitted).
“First, we ‘determine whether the trial court abused its discretion in making an
evidentiary ruling.’”
Id. (citation omitted). “[S]econd, we determine, ‘whether this
error was a prejudicial error that in all probability affected the jury’s conclusion.’”
Id. (alteration in original) (citation omitted). We have clarified that “the ‘all
probability’ phrase should be understood as ‘a reasonable probability that, but for
[the error], the result of the proceeding would have been different.’” State v. Carter,
2023 S.D. 67, ¶ 26,
1 N.W.3d 674, 686 (alteration in original) (citation omitted).
Importantly, “evidentiary rulings are only reversible ‘when error is demonstrated
and shown to be prejudicial error.’” Sedlacek,
2020 S.D. 18, ¶ 16,
941 N.W.2d at
822 (citation omitted).
[¶59.] Weiland argues the circuit court erred in denying his motion for new
trial based on certain evidentiary rulings, specifically, the exclusion of Deputy
Albers’s accident report, the exclusion of portions of SDHP’s investigation, and the
exclusion of alleged representations made by Bumann’s insurance adjuster.
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Deputy Albers’s accident report
[¶60.] Even if Weiland prevailed on his claim that Deputy Albers’s accident
report was admissible as a business record and a non-hearsay admission, the record
establishes the absence of any prejudice. Although the report itself was excluded,
Deputy Albers testified about the content of his report at trial, including the portion
of the report that indicated that Bumann’s operation of his patrol car contributed to
the collision. Deputy Albers also confirmed that the report did not identify
Weiland’s operation of his vehicle as a contributing cause for the collision. The
report itself would have only provided the same evidence and its exclusion was not
prejudicial. See Parker v. Arkansas Dep’t of Correction, 888 F.3d 396, 398–99 (8th
Cir. 2018) (concluding the court’s exclusion of an exhibit was not prejudicial, noting,
“[w]hile the district court ultimately decided not to admit the internal investigation
report as a documentary exhibit, it permitted [plaintiff] to elicit the content of the
report while questioning [a witness].”); 14 Cyc. of Federal Proc. § 68:56 (3d ed.)
(“Generally speaking, there is no prejudicial error where the testimony is restricted
to facts otherwise fully proved.”).
SDHP investigation
[¶61.] The circuit court ordered redactions for the portions of the SDHP
investigation report that discussed Bumann’s actions and findings relating to
violations of SDHP policy. Further, the court limited the use of the materials,
admitting the SDHP policies to the extent that they would not “usurp the functions
of the court or the jury” with regard to determining fault. Weiland claims the
SDHP report contained conclusions by Bumann’s supervisor regarding who caused
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the accident and whether the accident was preventable. He argues the court’s
redactions and limitations of this evidence was an abuse of discretion. We disagree.
[¶62.] As the circuit court concluded, the SDHP supervisor’s opinion could
have “confuse[d] the jury with fault standards different from negligence
determinations appropriate to the trial in this case.” The redacted language at the
center of Weiland’s argument was Sergeant Schade’s opinions that the accident was
preventable. However, “preventable” is not the same thing as solely responsible,
and surely does not automatically prove negligence. At some level of abstraction, all
accidents are preventable. As we have said, just because an accident occurs does
not mean one of the involved parties was negligent. See Carpenter v. City of Belle
Fourche, 2000 S.D. 55, ¶ 16,
609 N.W.2d 751, 759 (“the mere occurrence of an
accident . . . will not of itself establish negligence against the unfavored driver”).
[¶63.] The circuit court was concerned that the SDHP’s conclusions about the
preventable nature of the accident or Bumann’s violation of an SDHP policy could
confuse the jury on the applicable standard of care or usurp the function of the jury
as the finder of liability. These were legitimate concerns, and the court acted within
its discretion when it ordered the SDHP report redacted.
[¶64.] Weiland’s argument that our decision in Morrison v. Min. Palace Ltd.
P’ship,
1999 S.D. 145,
603 N.W.2d 193, supports his view that an employer’s
internal policies and procedures can be considered by the jury as evidence of
negligence is unavailing. Simply put, we did not consider the admissibility of
evidence relating to the employer’s policies in Morrison, and we made no holding
that would support Weiland’s evidentiary argument. Instead, we rejected the
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argument that an employer’s policy definitively established “what the law requires
of a reasonable person under the circumstances.” 1999 S.D. 145, ¶ 12 n.4,
603
N.W.2d at 196 n.4 (quoting 57A Am. Jur. 2d. Negligence § 170 (2024)). Though we
acknowledged that evidence of the employer’s policy of inspecting its premises for
snow and ice accumulation could establish a breach of the common law
reasonableness standard, we did not hold that an employer’s policy must be
considered. Id.
[¶65.] In any event, Weiland has not established prejudice from those
evidentiary rulings. Sergeant Schade and Bumann both testified at trial about the
accident, the SDHP investigation, and the SDHP policy. During his testimony,
Bumann admitted that he could have been more cautious and waited longer to see if
there was any oncoming traffic before making the turn. Further, Sergeant Schade
testified that he recommended Bumann be reprimanded. While the court redacted
portions of the SDHP material and Sergeant Schade’s report, most, if not all of the
information in the materials and report, whether redacted or otherwise, was still
presented to the jury through witness testimony. 7
Dykstra’s alleged representations
[¶66.] Dykstra is a claims adjuster for Claims Associates and worked on
Weiland’s claim against Bumann. Weiland alleges that Dykstra told him he could
not be compensated for chiropractic bills from the Ortman Clinic, presumably
7. To the extent that the excluded SDHP investigation evidence and Deputy
Albers’s accident report were directed at establishing Bumann’s negligence,
the jury’s finding that he was negligent further diminishes the impact of the
excluded evidence.
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because Weiland worked there. These alleged representations made by Dykstra
also supposedly affected how the treatments were documented—i.e., because he
could not collect for the Ortman bills, Weiland testified that he merely kept a diary
of his treatment and symptoms and not a proper medical record.
[¶67.] Bumann argues “that Weiland failed to preserve this issue for appeal”
because “Dykstra was not called as a witness at trial, and Weiland failed to make
an offer of proof regarding his testimony.” It is well-established that “the proponent
of excluded evidence must make the substance of the evidence known to the trial
court by making an offer of the excluded evidence at trial or prior to trial by an offer
of proof.” Wilcox v. Vermeulen, 2010 S.D. 29, ¶ 7,
781 N.W.2d 464, 467 (citation
omitted).
[¶68.] Though perhaps semantic, we note that Weiland preserved this issue
for appeal by litigating the issue before the circuit court. However, the state of the
record prevents us from conducting a meaningful review because we simply do not
know how Dykstra would testify. Dykstra was not deposed, he did not submit an
affidavit, and he did not testify before the circuit court at any point. The idea
underlying Weiland’s argument is that Dykstra would admit that he told Weiland
he could not be reimbursed for Ortman Clinic bills, but that premise is not
sustainable without an offer of proof.
[¶69.] Beyond this, it is difficult to perceive any prejudice from the exclusion
of Dykstra’s testimony at trial. Although it is not completely clear, it seems as
though Weiland wanted to offer the testimony to augment his total medical bills,
but he has not identified how he was prejudiced by not doing so. He testified that
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he did not pay for the treatments at the Ortman Clinic, which were performed by
his colleagues as a professional courtesy.
[¶70.] And, regardless, there was no restriction on his ability to offer evidence
of the value of the chiropractic treatment he received. We also note that the court’s
ruling prevented Bumann from cross-examining Weiland and his colleagues about
compliance with certain record keeping rules that are required when chiropractors
are treating patients. Under the circumstances, we affirm the circuit court’s
decision to exclude Dykstra’s testimony.
Jury instruction
[¶71.] During voir dire, two jurors said that they had similar insurance
claims to Weiland’s. Later, during a routine recess at trial, one of the jurors asked
the bailiff “who pays” for the damages awarded. Outside the presence of the jury,
the bailiff detailed the conversation to the circuit court:
And one lady says, “I’ve got a question.”
And I said, “From your body language, I can tell that I don’t
think I can answer it, but I can’t stop you from asking it.”
And she said, “Where does the money come from? You know,
does he have to pay for it?”
And I said, “I was right the first time. I can’t answer that. But
you will get all of the information about that you need to hear to
make a decision in the courtroom.”
The trial continued without any objection from the parties.
[¶72.] However, while the parties were finalizing jury instructions, Weiland
proposed South Dakota Pattern Jury Instruction 10-20-60 which states, “Whether a
party is insured has no bearing whatever on any issue that you must decide. You
must refrain from any inference, speculation, or discussion about insurance.”
Determining that the bailiff “properly responded” to the juror’s question, the circuit
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court denied the proposed instruction. Further, the court stated that it did not
“think we’re yet at a point where the issue has been explicitly injected into the
subject matter of this such that this instruction is appropriate.” 8
[¶73.] “A circuit court’s denial of proposed jury instructions is also reviewed
under an abuse of discretion standard.” Sedlacek, 2020 S.D. 18, ¶ 17,
941 N.W.2d
at 823 (citation omitted). In Beck v. Wessel,
90 S.D. 107, 109–13, 237 N.W.2d 905–
06 (1976), we affirmed the circuit court’s unilateral decision to issue a simple
negative response to the jury’s question during deliberation, “Can you tell us the
amount of insurance each party has?” Although we acknowledged the court should
have consulted with the parties’ attorneys, we recognized that the court’s prompt
answer avoided bringing the jurors back into court to admonish them against
considering the existence of liability insurance. Such an admonishment, we
reasoned, “may well have compounded the problem by making a much larger issue
of liability insurance in the minds of the jury.”
Id. at 114,
237 N.W.2d at 909.
[¶74.] Here, the circuit court acted within its discretion when it assessed the
need for the instruction and the risk that it posed of unnecessarily emphasizing the
topic of liability insurance. The “who pays” question was posed to the bailiff by a
single juror during a recess and not on behalf of the jury during deliberations. Also,
the bailiff’s answer was appropriate and seems to have resolved the issue because
there were no additional questions on the topic.
8. Strictly speaking, there was no liability insurance carrier in the traditional
sense. As defense counsel explained, Bumann’s conduct was covered by
South Dakota’s Public Entity Pool for Liability (PEPL fund). See Pub. Entity
Pool for Liab. v. Score, 2003 S.D. 17, ¶¶ 9–10,
658 N.W.2d 64, 69 (discussing
the PEPL Fund and citing cases).
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[¶75.] Weiland relies on an Illinois intermediate appellate court decision to
support his argument that the circuit court erred when it denied the jury
instruction. See Baraniak v. Kurby, 862 N.E.2d 1152, 1155 (Ill. App. Ct. 2007)
overruled on other grounds by Peach v. McGovern,
129 N.E.3d 1249 (Ill. 2019). In
Baraniak, the trial court sent nonresponsive answers to two jury questions during
deliberations asking who paid the plaintiff’s medical bills.
862 N.E.2d at 1155. The
court’s responses focused generally on the existing evidence and instructions but did
not address the inquiry.
Id. On appeal, the appellate court determined “there was
a duty to answer [the jury’s] questions, and the failure to do so resulted in
prejudicial and reversible error, mandating a new trial.”
Id.
[¶76.] But the Baraniak decision lacks persuasive value here for the reasons
stated above. There is no indication that the question to the bailiff from a single
juror during a recess reflected a collective inquiry from all the jurors. The circuit
court’s determination that Weiland’s proposed instruction was not necessary to
neutralize a concern about liability insurance was within the range of permissible
choices.
Per diem calculation argument
[¶77.] Before trial, Bumann moved to preclude Weiland from presenting a
per diem calculation for non-economic damages. Weiland sought to ask the jury for
non-economic damages calculated at $75,000 a year for 40 years. The court granted
Bumann’s motion, and Weiland now appeals, arguing the court’s decision was
erroneous and prejudicial.
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[¶78.] We have not previously confronted the propriety of per diem
arguments, or arguments that suggest a sum of non-economic damages aggregated
incrementally by using units of time. See Reindl v. Opitz, 88 S.D. 223, 227–28,
217
N.W.2d 873, 876 (1974) (holding that objection to a per diem argument was not
properly before the court on appeal). Commentators have noted a split of authority
regarding whether these per diem, or unit-of-time, arguments are appropriate, with
many courts concluding the ultimate determination lies within the trial court’s
discretion. See 2 American Law of Torts § 8:10 (noting that “courts are in wide
disarray” on whether to allow a per diem damages argument and that some
jurisdictions find the matter within the trial court’s discretion); see also, James O.
Pearson, Jr., Per Diem or Similar Mathematical Basis for Fixing Damages for Pain
and Suffering,
3 A.L.R. 4th 940 (1981).
[¶79.] In our view, both the relative infrequency of appellate challenges to
per diem arguments in South Dakota and the nature of the topic itself suggest that
these damage arguments do not differ fundamentally from the other myriad of
topics the circuit court controls through the exercise of its discretion, including the
argument of counsel. See Vanskike v. ACF Indus., Inc.,
665 F.2d 188, 211 (8th Cir.
1981) (“[A]lthough we continue to condemn instructions requiring per diem
mathematical calculations, we do not disapprove of per diem closing arguments as
long as such arguments are carefully controlled by the district court.”); see also,
Waldron v. Hardwick,
406 F.2d 86, 89 (7th Cir. 1969) (holding the permission to
argue for unit-of-time damages “should be left largely to the discretion of the trial
judge”).
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[¶80.] Further, assigning a monetary value to pain and suffering is often
properly based on certain increments of time. See, e.g., Sunset Brick & Tile, Inc. v.
Miles, 430 S.W.2d 388, 390 (Tex. Civ. App. 1968) (“The damage issues themselves
divided the pain into periods of time. The time from injury to trial was one period,
and from trial to the future was another. The law recognizes that pain is a proper
item for recovery; that it is susceptible only for an approximate monetary
evaluation, that jurors may arrive at a figure from their common knowledge and
sense of justice, and that counsel may suggest what they believe the evidence will
support.”). Accordingly, we do not believe a per se rule regarding per diem or
similar unit of time damages arguments is necessary but, instead, opt to allow
circuit courts to exercise their discretion in each case to determine whether the
argument is supported by the evidence. 9 See, e.g., Debus v. Grand Union Stores of
Vermont,
621 A.2d 1288, 1290 (Vt. 1993) (“A per diem argument is a tool of
persuasion used by counsel to suggest to the jury how it can quantify damages
based on the evidence of pain and suffering presented.”); Richardson v. Children’s
Hosp.,
787 N.W.2d 235, 246 (Neb. 2010) (concluding per diem argument is proper
where it is supported by the evidence); Southard v. Hancock,
689 S.W.2d 616, 618
9. Where the circuit court permits a per diem or unit of time damages
argument, the court could also consider the propriety of an instruction
explaining to the jury that the mathematical calculation for non-economic
damages is offered as an argument but is not, itself, evidence. See, e.g., Vogel
v. Fetter Livestock Corp., 394 P.2d 766, 772 (Mont. 1964) (reiterating that
“the per diem argument is used for illustrative purposes,” and recommending
that the trial court “instruct the jury that any remark of counsel not
sustained by the evidence is to be disregarded.”).
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(Ky. Ct. App. 1985) (holding a per diem argument is permissible if supported by the
evidence).
[¶81.] Here, the circuit court’s decision that prevented Weiland’s counsel
from making a per diem argument will not justify relief on appeal. Although the
court incorrectly viewed per diem arguments as categorically barred, the court’s
decision is, nevertheless, supportable in this case as an exercise of discretion
because the court could have reasonably concluded that the evidence was ill-suited
to a per diem damages argument.
[¶82.] Weiland sought to use the per diem argument in conjunction with his
anticipated life expectancy to argue for future non-economic damages for pain and
loss of enjoyment of life. However, there was evidence adduced at trial that
Weiland’s pain had resolved, he had no restrictions, his injuries were not
permanent, he required no further treatment, and he engaged in numerous physical
activities since the accident. Weiland’s proposed per diem argument that his pain
and loss of enjoyment of life would persist for 35 years into the future was simply
not supported by the evidence.
Conclusion
[¶83.] Weiland’s claims for summary judgment and judgment as a matter of
law regarding negligence are moot. The circuit court’s denial of summary judgment
and judgment as a matter of law concerning contributory negligence was proper
because there was evidence admitted at trial that would have permitted a finding of
contributory negligence. Further, the court correctly denied Weiland’s motion for
summary judgment and judgment as a matter of law on the mitigation of damages
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issue because there was sufficient evidence presented to submit the issue to the
jury.
[¶84.] We also conclude that the circuit court acted within its discretion when
it excluded the accident report, redacted portions of the SDHP investigation
materials, and refused to allow testimony from the claims adjuster, Dykstra. Also,
the court did not abuse its discretion when it declined to instruct the jury
concerning the topic of liability insurance and when it precluded Weiland from
making a per diem argument.
[¶85.] We, therefore, affirm the circuit court judgment, making it
unnecessary to address the issues identified in Bumann’s notice of review.
[¶86.] JENSEN, Chief Justice, and KERN, DEVANEY, and MYREN,
Justices, concur.
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