United States District Court, D. South Dakota, Southern Division
MEMORANDUM OPINION AND ORDER DENYING MOTION FOR NEW TRIAL
LAWRENCE L. PIERSOL, District Judge.
After a jury trial, Defendant, Running Supply, Inc., obtained a verdict in its favor on Plaintiff's claim of negligence. Plaintiff, James Lasley (Lasley) has filed a motion for a new trial pursuant to Federal Rule of Civil Procedure 59.
The evidence at trial showed that, on May 28, 2013, Lasley, a self-employed tractor-trailer driver, picked up a shipment of cattle panels from Powder River Livestock Handling Equipment Company in Provo, Utah, to be delivered to six different locations including the Running Supply store in Huron, South Dakota. When he picked up the load, Lasley was given a diagram of the load, packing slips for each delivery, instructions, and unloading precautions. Lasley testified that he read the unloading precautions. Those precautions indicated that he was responsible for removing his straps that held the load to the flatbed, and the customer was responsible for unloading the cattle panels.
Lasley started with deliveries to Jackson, Wyoming, Billings, Montana, Gillette, Wyoming, and then Pierre, South Dakota. When Lasley drove his truck onto Running's parking lot in Huron, South Dakota on May 31, 2013, he was approached by a single employee, Melvin Brown, driving a forklift. Lasley said he asked Brown where his help was. When Brown responded that he was "it, " Lasley thought Brown was short-handed because more than one employee was provided to unload the four deliveries made earlier in the week. Brown testified that he always unloaded this type of freight himself. Lasley asked for a tool to cut the bands, and Brown handed him a bolt cutter. Brown testified that when he observed Lasley on the truck cutting bands and assisting in unloading the first set of panels, it appeared Lasley knew what he was doing. Brown removed the first set of panels with the forklift and drove away to unload them into the storage facility in the parking lot. As Brown was backing out to return to Lasley's truck, he saw Lasley on the ground with panels on top of him. Lasley testified that when he cut the black bands that held the set of panels to the load, the panels shifted, fell and knocked him off the truck and onto the parking lot. Brown testified that those bands should only be cut when the forklift is in place. Lasley admitted that the precautions he read included the language: "When popping black bands, be careful that you stand clear of the product and bands, they will spring open and could injure you."
Lasley suffered back and leg injuries as a result of the fall. On August 30, 2013, Lasley commenced this diversity action. Lasley's one count Complaint turns on the alleged negligent omissions of Defendant's employees: 1) failure to provide an adequate number of employees to unload the shipment, 2) failure to supervise the unloading of the shipment, and 3) failure to properly instruct the unloading. (Doc. 1.) Lasley did not identify a physical defect in the condition of the premises that caused his injuries or damages. He never amended the Complaint.
The pretrial conference was held in this case on October 6, 2014. No pretrial motions had been filed and the Court's knowledge of the case was based solely on the information contained in the complaint and the answer. At the pretrial conference, the Court cited Parker v. Casa Del Rey-Rapid City, Inc., 641 N.W.2d 113 (S.D. 2002), for the proposition that Lasley was a business invitee, and the Court asked what standard of care applied. Counsel for Defendant argued that a straight negligence standard applied because Lasley was unloading his own truck when he was injured. Counsel for Lasley did not argue that his was a cause of action for premises liability, but the Court wondered if a higher standard of cared applied because Lasley was a business invitee at the time of his injury.
Prior to trial, Lasley proposed jury instructions on premises liability:
DUTY OWED TO INVITEE
Defendant is liable for the physical harm caused to Lasley if it:
(1) knew or by the exercise of reasonable care would have discovered the condition, and should have realized that it involved an unreasonable risk of harrn to Lasley; and
(2) should have expected that Lasley would not have discovered or realized the danger, or would have failed to protect himself against it; and
(3) failed to exercise reasonable care to protect Lasley against the danger; and
(4) that Defendant's breach of such duty or duties were the legal cause of Lasley's injuries.
(Doc. 19, Proposed Jury Instructions by James Lasley, at p. 6.)
DUTY - REASONABLE AND ORDINARY CARE
Reasonable and ordinary care required Defendant to keep its premises safe and warn any invitee, like Lasley, of any concealed, dangerous conditions known to Defendant.
(Id at 7.)
LANDOWNER LIABILITY - DUTY TO INVITEE - OPEN AND OBVIOUS CONDITIONS
Defendant is not liable to Lasley for physical harm caused to Lasley by an activity or condition on its land whose danger ...