Considered on Briefs March 23, 2015
APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT CODINGTON COUNTY, SOUTH DAKOTA. THE HONORABLE RONALD K. ROEHR, Judge.
NANCY J. TURBAK BERRY, SEAMUS W. CULHANE of, Turbak Law Office, PC, Watertown, South Dakota, Attorneys for plaintiff and appellant.
For DEREK A. NELSEN of, Fuller & Williamson, LLP, Sioux Falls, South Dakota, Attorneys for defendant and appellee.
ZINTER, Justice. GILBERTSON, Chief Justice, and SEVERSON and WILBUR, Justices, concur. KERN, Justice, concurs specially.
[¶1] John DeBoer and Jill Lenards were in a car accident. Lenards sued DeBoer for negligence, limiting her damages claim to pain and suffering. The jury returned a general verdict for DeBoer, and the circuit court denied Lenards' motion for a new trial. Lenards appeals. We affirm.
Facts and Procedural History
[¶2] On June 4, 2009, Lenards was stopped on a highway waiting to turn left with her turn signal on. DeBoer, who was traveling in the same direction, was unable to stop in time to avoid colliding with the rear end of Lenards' car. DeBoer pleaded guilty to careless driving as a result of the accident. At trial, DeBoer claimed that the accident was unavoidable because the sun unexpectedly reflected off Lenards' back window causing him to temporarily lose his vision. DeBoer, however, also testified that the accident was " completely his fault."
[¶3] Immediately after the accident, Lenards told DeBoer that she was alright. Lenards also told both her OnStar attendant and the officer on scene that she did not require an ambulance. Lenards' sister gave Lenards a ride home. The two decided to go to the emergency room because Lenards was starting to see " dots." Lenards told the emergency room doctor that her neck hurt; however, Lenards did not say that her back hurt. The emergency room doctor examined Lenards and found no vertebral tenderness, no CVA tenderness, and no hip tenderness.
[¶4] On June 9, 2009, five days after the accident, Lenards saw her doctor. Lenards complained of chronic dizziness--related to an inner ear tumor--and of neck pain. She had a CT scan of her neck. The CT scan was negative for any injury, and she was sent home. Lenards did not complain of back pain at this appointment.
She would not indicate that her back hurt until twenty-one days after this appointment--over three ...