APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT YANKTON COUNTY, SOUTH DAKOTA THE HONORABLE GLEN W. ENG Judge
The opinion of the court was delivered by: Konenkamp, Justice
#26088-aff in pt, rev in pt & rem-JKK
[¶1.] While driving a farm tractor down a county road, defendant turned unexpectedly and struck plaintiff's motorcycle as plaintiff was trying to pass on the right. At trial, defendant asserted that plaintiff was driving under the influence of alcohol at the time and was barred from recovering based on contributory negligence and assumption of the risk. A jury returned a verdict for plaintiff. On appeal, we conclude that the circuit court erroneously instructed the jury on the presumptions applicable only to criminal prosecutions for DUI. Also, plaintiff's repeated violations of the court's in limine order, improperly disclosing that plaintiff was not prosecuted for DUI, unfairly suggested to the jury that law enforcement officials had effectively resolved the issue whether plaintiff was driving under the influence.
[¶2.] On May 19, 2009, John Walter and Dale Morck drove their motorcycles in and around the Yankton and Springfield areas of South Dakota. They stopped at various bars and got their books stamped as part of a summer-long poker run. Their first stop was at a bar outside of Yankton around 2:25 p.m. There, they each consumed one beer. Walter recalled that over the course of the next two hours, he and Morck stopped at three more establishments, and he drank a little over three more beers. Morck, on the other hand, remembered stopping at a total of five bars and that he and Walter consumed about six beers each. They left the last bar around 4:30 p.m. to head back to Springfield.
[¶3.] On their way home, Walter and Morck proceeded north on Highway 81. They turned west onto 306th Street, a paved county road, and headed toward Tabor. Shortly afterwards, Walter and Morck noticed a tractor on the road, heading west. John Fuks (now deceased) was driving his tractor five to ten miles per hour and was on his way to a field to help a friend. Walter and Morck slowed as they neared the tractor. What happened next is disputed. Walter claimed that Fuks drove his tractor from the westbound lane to the eastbound lane and stopped off the road, momentarily. Fuks maintained that he crossed the centerline, never stopped his tractor, and drove partially in the eastbound lane. He intended to make a left- hand turn into a field approach, and to do so successfully, he swung the front of his tractor to the right just before turning. Morck said Fuks's tractor crossed the centerline and was partially in the eastbound lane when Fuks suddenly veered right. What happened thereafter is undisputed. When Fuks swung the front of his tractor to the right, the attached bucket entered the westbound lane, struck Walter's motorcycle, and sent Walter into the ditch.
[¶4.] After the accident, Fuks drove his tractor back to his farm, a short distance away. While he was gone, an ambulance arrived. Teresa Holland, an EMT from Tabor, tended to Walter. She found him with significant injuries, but she smelled no odor of an alcoholic beverage. Yankton County Deputy Sheriff Dan Christianson also arrived on the scene. By this time, Fuks had returned. Officer Christianson took statements from Fuks and Morck. He also issued Morck a preliminary breath test for alcohol, which indicated a blood alcohol content (BAC) of .055%. Because Morck's BAC was below the legal limit of .08%, Officer Christianson told Morck he was free to leave.
[¶5.] Walter was taken by helicopter to Sioux Falls for treatment. There, a blood sample was drawn at 6:25 p.m. The test showed a BAC of .058%. A second blood sample was drawn around 7:38 p.m., at the request of investigating officers, and was forwarded to the State Chemical Laboratory in Pierre. Roger Mathison, a chemist for the State, determined Walter's BAC to be .042%. By extrapolation, Mathison concluded that at the time of the accident, Walter's BAC would have been .087%.
[¶6.] As a result of the accident, Walter sustained compound fractures of his left elbow, pelvis, and knee, requiring multiple surgeries. He missed eight months of work as a correctional officer at the Mike Durfee State Prison. In the end, he sustained a 9% whole person impairment rating and incurred $160,745 in medically-related expenses.
[¶7.] Walter sued Fuks for negligence. Fuks answered denying negligence and asserting the affirmative defenses of contributory negligence and assumption of the risk. He later moved for summary judgment asserting that Walter was legally under the influence of an alcoholic beverage at the time of the accident, making him contributorily negligent more than slight. As support, Fuks offered an affidavit from Mathison that Walter's BAC at the time of the accident was .087%, above the legal limit of .08%. The circuit court denied the motion.
[¶8.] Among other pretrial motions, Fuks moved to prevent Walter from eliciting testimony or offering evidence that Walter was not criminally prosecuted as a result of his BAC at the time of the accident. The court granted the motion, declaring that no questions could be asked "regarding any citation, charge of a criminal nature that was -- was brought or was not brought." But later during a deposition, counsel for Walter asked a witness if he was aware if Walter "was ever arrested" for a DUI. When Fuks's counsel objected, saying that the question violated the court's in limine ruling, Walter's counsel responded that "we were instructed not to talk about the charges and I'm talking about arrest by a police officer and I think that's different[.]" Consequently, Fuks made another motion in limine, which the court granted, saying, "The court is going to limit any questions regarding arrests, citations, as previously ordered." Counsel were instructed to approach the bench if they believed the other side had opened the door for questioning related to any criminal prosecution.
[¶9.] A jury trial was held in May 2011. Fuks admitted negligence, leaving for the jury the issues of causation, contributory negligence, assumption of the risk, and damages. To prove Walter was under the influence of an alcoholic beverage, Fuks offered expert testimony that based on Walter's .087% BAC at the time of the accident, Walter would have experienced a "feeling of euphoria, of well-being, everything is good and it's going to stay good, going to charge through, don't really stop and think about all the consequences, all the things that could go wrong as you would if you were sober and a sober person may well judge the situation completely differently and might have stopped before the tractor had a chance to turn in on him." Fuks argued that had Walter not been drinking he would have avoided the tractor bucket as Morck was able to do. Walter, on the other hand, presented evidence that his BAC was .062% at the time of the accident, that no one thought he appeared to be under the influence of alcohol, and that he operated his motorcycle as an ordinary person would have under the circumstances.
[¶10.] The jury found for Walter. By special verdict, it concluded that Fuks's negligence was the legal cause of Walter's injuries, and that Walter was contributorily negligent, but ...