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#27968-a-GAS
2018 S.D. 8
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
ANNETTE STEILEN, Plaintiff and Appellant,
v.
CABELA’S WHOLESALE, INC., Defendant and Appellee.
****
APPEAL FROM THE CIRCUIT COURT OF
THE FIRST JUDICIAL CIRCUIT
DAVISON COUNTY, SOUTH DAKOTA
****
THE HONORABLE PATRICK T. SMITH
Judge
****
R. SHAWN TORNOW
Sioux Falls, South Dakota Attorney for plaintiff
and appellant.
GARY P. THIMSEN
MORGAN F. BREKKE of
Woods, Fuller, Shultz & Smith, PC
Sioux Falls, South Dakota Attorneys for defendant
and appellee.
****
CONSIDERED ON BRIEFS
ON JANUARY 8, 2018
OPINION FILED 01/24/18
#27968
SEVERSON, Justice
[¶1.] During the settling of jury instructions, plaintiff requested two
instructions on the doctrine of res ipsa loquitur. The circuit court denied her
requested instructions after concluding that they were not warranted by the
evidence presented at trial. Plaintiff appeals. We affirm.
Background
[¶2.] On June 7, 2012, Annette Steilen and her now-husband Paul Steilen
were at the Cabela’s store in Mitchell, South Dakota, looking for items for their new
camper. As Annette was walking down the camper aisle, she heard Paul comment,
“I think this is what we’re looking for.” Paul was behind Annette, and Annette was
almost to the end of the aisle. She turned toward Paul to see to what he was
referring. She explained that as she turned, the top of her left shoulder “brushed” a
heavy drop-down steel receiver hitch. The hitch fell from Cabela’s shelving unit. As
the hitch fell to the ground, it hit Annette’s left wrist. She explained that she
immediately yelled out and reacted to the pain by swearing and crying. Paul turned
around and asked her what happened. She told Paul that the hitch “just fell out of
the rack and hit [her].” She also told him that “it just hurts like hell.” She and
Paul picked up the hitch and returned it to the display rack or a nearby shelf. They
decided to leave Cabela’s.
[¶3.] As Paul and Annette were leaving, they reported the incident to an
employee. The employee referred them to Doug Haas, the store’s hard lines
manager. Annette asked for and was given ice. Haas prepared an incident report
based on the information relayed to him by Paul and Annette. Describing the
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incident, he wrote: “customer brushed/bumped a receiver hitch with shoulder and it
fell and contacted her arm/shoulder/wrist as it fell.” Haas testified that he and
another associate checked the display hitches and later reported that nothing was
out of place.
[¶4.] After leaving Cabela’s, the Steilens went to the emergency room in
Mitchell to have Annette’s wrist examined. She was treated and released. She
subsequently sought care by her primary care provider. She continued to receive
medical treatments and procedures following her injury at Cabela’s. She was not
able to return to work for nearly four years.
[¶5.] Annette brought suit against Cabela’s, alleging negligence. The case
proceeded to a jury trial on July 25, 2016. During the settling of jury instructions,
Annette requested two pattern jury instructions on the doctrine of res ipsa loquitur.
She argued that the instructions were appropriate because the only evidence of
negligence was the fact that the hitch—under Cabela’s control—fell. The circuit
court refused the instructions, concluding that they were not warranted by the
evidence presented at trial. It remarked, “I think this is an instruction that’s
intended to be given in limited circumstances, in extreme cases, where it is clearly
obvious that but for negligence, this doesn’t happen, such as being electrocuted in a
pool.” The jury returned a verdict in favor of Cabela’s.
[¶6.] Annette appeals, asserting that the circuit court committed reversible
error when it did not instruct the jury on the doctrine of res ipsa loquitur.
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Analysis
[¶7.] Annette argues that she was prejudiced by the court’s refusal to
instruct the jury on the doctrine of res ipsa loquitur. She claims that her requested
instructions correctly stated the law and were supported by competent evidence.
She further asserts that by denying her instructions, the court failed to properly
instruct the jury overall.
[¶8.] It is well established that a circuit court “has a duty to instruct the
jury on applicable law where the theory is supported by competent evidence.”
Schultz v. Scandrett, 2015 S.D. 52, ¶ 35, 866 N.W.2d 128, 140 (quoting Jahnig v.
Coisman, 283 N.W.2d 557, 560 (S.D. 1979)); accord Malloy v. Commonwealth
Highland Theatres, Inc., 375 N.W.2d 631, 636 (S.D. 1985). Therefore, while we
review a court’s decision to deny a requested instruction for an abuse of discretion,
“when the question is whether a jury was properly instructed overall, the issue
becomes one of law reviewable de novo.” Vetter v. Cam Wal Elec. Co-op, Inc., 2006
S.D. 21, ¶ 10, 711 N.W.2d 612, 615.
[¶9.] The three essential elements of res ipsa loquitur are:
(1) the instrumentality which caused the injury must have been
under the full management and control of the defendant or his
servants; (2) the accident was such that, according to knowledge
and experience, does not happen if those having management or
control had not been negligent; and (3) the plaintiff’s injury
must have resulted from the accident.
Wuest ex rel. Carver v. McKennan Hosp., 2000 S.D. 151, ¶ 18, 619 N.W.2d 682, 688
(quoting Van Zee v. Sioux Valley Hosp., 315 N.W.2d 489, 492 (S.D. 1982)); accord
Fleege v. Cimpl, 305 N.W.2d 409, 412-13 (S.D. 1981).
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[¶10.] According to Annette, the hitch was under the full control and
management of Cabela’s by and through its employees, and a hitch would not
ordinarily fall from its shelving if due care had been exercised by Cabela’s
employees. She also argues that she was without evidence to detail Cabela’s
negligence on June 7, 2012. In her brief, she emphasizes that Cabela’s claimed it
lacked video surveillance of the accident. She further asserts that she lacked access
to accident-related information from Cabela’s.
[¶11.] “Res ipsa loquitur is primarily a rule of evidence[.]” Malloy, 375
N.W.2d at 635. It “is founded on the absence of specific proof of omissions or facts
which constitute negligence.” Id. at 636. However, “[t]he doctrine should be
invoked sparingly and only when facts and demands of justice make its application
essential.” Fleege, 305 N.W.2d at 413. “It is only where the circumstances leave no
room for different presumptions or inferences that the doctrine of res ispa loquitur
applies.” Kramer v. Sioux Transit, Inc., 85 S.D. 232, 239, 180 N.W.2d 468, 472
(1970); accord Wagner v. Coca-Cola Bottling Co., 319 N.W.2d 807, 808 (S.D. 1982).
Moreover, for the doctrine to apply, “the circumstances attending upon the accident
[must be] in themselves of such a character as to justify . . . inferring negligence as
the cause of the injury.” Schmeling v. Jorgensen, 77 S.D. 8, 18, 84 N.W.2d 558, 564
(quoting Barger v. Chelpon, 60 S.D. 66, 243 N.W. 97, 98 (1932)). Therefore, “[t]he
doctrine cannot be invoked when it appears from the surrounding facts and
circumstances that the accident may have resulted from a cause or causes other
than the negligent act of the defendant.” Kramer, 85 S.D. at 239, 180 N.W.2d at
472.
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[¶12.] From our review of the record, the circuit court did not commit
reversible error when it refused Annette’s requested instructions. Annette’s injury
occurred in a retail setting involving a display of merchandise offered for public
sale, which merchandise could ordinarily be handled and manipulated by
customers. See, e.g., Wagner, 319 N.W.2d at 808 (merchandise subject to third-
party contact did not eliminate the possibility of mishandling). Also, Annette
testified that she brushed the hitch with her shoulder when she turned to hear
what Paul had said, which could suggest that the accident may have resulted from a
cause other than Cabela’s negligence. See Kramer, 85 S.D. at 239, 180 N.W.2d at
472.
[¶13.] We also note that Annette entered evidence directly tending to show a
lack of care on the part of Cabela’s. Using an exhibit depicting the hitch on the rack
at Cabela’s, Annette asserted to the jury that the heavy hitch was hanging on the
rack by a single wire unit. She also used the exhibit as evidence that Cabela’s was
negligent in displaying the hitches in a manner that caused them to jut out. In her
brief, she claims that “the ordinary and common sense inference is that Cabela’s
employees—when stocking the heavy drop-down receiver hitches—negligently failed
to properly secure them when they attempted to place them in the wire shelving
rack—therefore, causing the heavy sharp steel hitches to precariously jut out into
the customer’s walkway area of Cabela’s shopping aisle.”
[¶14.] We recognize that “a plaintiff does not waive instructions on res ipsa
loquitur by trying to establish specific acts of negligence through introduction of
some evidence which does not clearly and definitely establish the exact cause of
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injury[.]” Malloy, 375 N.W.2d at 636. But the doctrine of res ipsa loquitur looks to
the neutral circumstances of full control and management by the defendant and,
here, Annette’s evidence leaves room for different presumptions or inferences
negating the applicability of the doctrine. See Wuest, 2000 S.D. 151, ¶ 19, 619
N.W.2d at 688 (The accident must be “such that, according to knowledge and
experience, . . . [it] does not happen if those having management or control had not
been negligent[.]”).
[¶15.] Affirmed.
[¶16.] GILBERTSON, Chief Justice, and ZINTER, KERN, and JENSEN,
Justices, concur.
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