December 1, 2015.
FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT CORSON
COUNTY, SOUTH DAKOTA. THE HONORABLE MICHAEL W. DAY, Judge.
BRYAN ULMER, III of The Spence Firm, LLC, Jackson, Wyoming
and AARON D. EIESLAND of Johnson Eiesland Law Offices, PC,
Rapid City, South Dakota, Attorneys for plaintiffs and
A. POWER, J.G. SHULTZ of Woods, Fuller, Shultz & Smith, PC,
Sioux Falls, South Dakota, Attorneys for defendant and
appellee Shur-Company n/k/a Shorma Company.
PETERSON, MELISSA C. HINTON of Davenport, Evans, Hurwitz &
Smith, LLP, Sioux Falls, South Dakota, Attorneys for
defendant and appellee Wilson Trailer Company.
Justice. GILBERTSON, Chief Justice, and SEVERSON, Justice,
and PORTRA, Circuit Court Judge, concur. KERN, Justice,
concurs in part and dissents in part. PORTRA, Circuit Court
Judge, sitting for WILBUR, Justice disqualified.
[¶1] Richard and Susan Karst sued Shur
Company and Wilson Trailer Company on negligence and
strict-liability causes of action. Karsts alleged defective
design and improper warnings relating to Shur's
electric-tarp system that Wilson included on a grain trailer
it sold to Richard. The circuit court granted summary
judgment against Karsts on their failure-to-warn claims, and
a jury found in favor of Defendants on Karsts' remaining
claims. On appeal Karsts argue that the circuit court erred
in instructing the jury, in granting summary judgment on the
improper-warning claims, in permitting an assumption-of-risk
defense to go to the jury, and in refusing to admit evidence
of the warnings that were provided. We affirm.
and Procedural History
[¶2] Richard Karst was in the business of
trucking and buying and selling oats. He used a type of grain
trailer that required a tarp to cover the cargo area. From
1980 until 2007, Richard used a manual-tarp system on his
[¶3] In 2007, Richard purchased two new
grain trailers from Wilson. Both were equipped with
Shur's model 3500 electric-tarp system. The tarp system
featured a " roll tube" that ran the length of the
trailer. A tarp, when rolled around the roll tube, retracted
to uncover the cargo area. The roll tube was attached to the
front and rear of the trailer by a " flex arm" at
each end. The tarp system used an electric motor to roll up
the tarp, and the tarp was unrolled to cover the trailer with
the assistance of torsion springs located where the flex arms
attached to the trailer. A spline at the rear end of the roll
tube allowed the use of a manual crank to roll and unroll the
tarp when necessary. However, a metal sleeve located at the
end of the rear flex arm fit over the spline and connected
the flex arm to the roll tube. Consequently, to get access to
the spline to unroll the tarp manually, the flex arm had to
be disconnected from the roll tube by removing the sleeve.
[¶4] On December 15, 2009, Richard loaded
two trailers with oats at an elevator in McLaughlin. The lead
trailer's tarp closed properly, but the pup trailer's
electric-tarp system failed, leaving the roll tube and tarp
in the open position. A warning label located on the rear
flex arm warned that it was under spring tension and advised
reading the manual before disassembling the flex arm.
Although the manual similarly warned that the flex arms were
under tension, the manual did not offer guidance on how to
unroll a tarp stuck in the open position with the
electric-tarp system engaged.
[¶5] Because the tarp had to be closed
before leaving the elevator, Richard climbed onto a platform
on the back of the trailer to attempt to manually unroll the
tarp. He attempted to hold the flex arm with one hand while
using a hammer to knock the flex arm's metal sleeve off
the roll tube to get access to the spline. As soon as the
sleeve separated from the roll tube, the torsion springs
caused the flex arm to spring toward Richard, knocking him to
the ground. Richard suffered a fractured skull and permanent
brain damage. As a result of the brain injury, he is unable
to recall the accident.
[¶6] Karsts later brought this suit on
causes of action alleging strict liability and negligence
(both for defectively designing the product and for failing
to properly warn of the danger). Wilson moved for summary
judgment on all claims, and Shur moved for summary judgment
on the failure-to-warn claims. After Karsts responded to the
summary judgment motions on the failure-to-warn claims, the
circuit court determined that Karsts failed to produce
evidence that Richard had read the provided warnings prior to
the accident. The court concluded that in the absence of such
evidence, Karsts would be unable to prove causation on their
failure-to-warn claims. Consequently, the court granted
summary judgment to Defendants on all failure-to-warn claims.
The court also granted summary judgment to Wilson on
Karsts' negligent-defective-design claim. After a
twelve-day trial, a jury returned a verdict in favor of
Defendants on Karsts' surviving claims.
[¶7] Karsts appeal, raising four
1. Whether Jury Instruction 20 on strict liability misstated
South Dakota law and misled and confused the jury.
2. Whether the circuit court erred in granting summary
judgment in favor of Defendants on Karsts'
3. Whether there was sufficient evidence to instruct the jury
on assumption of the risk.
4. Whether Karsts should have been allowed to present
evidence of the warnings actually given in order to counter
testimony on assumption of the risk.
Instruction 20--Strict Liability
[¶8] " A trial court has discretion in
the wording and arrangement of its jury instructions, and
therefore we generally review a trial court's decision to
grant or deny a particular instruction under the abuse of
discretion standard. However, no court has discretion to give
incorrect, misleading, conflicting, or confusing instructions
. . . ." Vetter v. Cam Wal Elec. Coop., Inc.,
2006 S.D. 21, ¶ 10, 711 N.W.2d 612, 615 (citations omitted).
Therefore, " when the question is whether a jury was
properly instructed overall, that issue becomes a question of
law reviewable de novo." Id.
[¶9] Karsts argue that Instruction 20 on
strict liability misstated the law and confused and misled
the jury in describing products that are in a "
defective condition unreasonably dangerous" to the user.
Because jury instructions " must be considered as a
whole in determining if error was committed in giving or
refusing to give certain instructions[,]" Degen v.
Bayman, 90 S.D. 400, 406, 241 N.W.2d 703, 706 (1976),
Karsts' argument requires consideration of Instructions
19 and 20 together. This case was submitted to the jury on a
defective-design theory, and the parties agreed that the
strict-liability question should be determined under what is
commonly referred to as the risk-utility test. Accordingly,
the court gave Instruction 19, which stated: " A product
is in a defective condition unreasonably dangerous to the
user if it could have been designed to prevent a foreseeable
harm without significantly hindering its function or
increasing its price." Instruction 20 stated:
A product can be dangerous without being unreasonably
dangerous. Even if a product is defective in some manner, you
must find that the defect renders the product "
unreasonably" dangerous. A product is not in a defective
or unreasonably dangerous condition merely because it is
possible to be injured while using it.
to Karsts, Instruction 20 was not needed because "
Instruction 19 gave the jury all of the law it needed to
decide whether defendants were liable on a product-defect
theory." Karsts more specifically contend: (1) that
under South Dakota law, Instruction 20 incorrectly implied a
separate unreasonably-dangerous test, that defectiveness and
unreasonable dangerousness are not separate elements, and
that the jury was not required to accept any level
of danger in this product; (2) Instruction 20 derives from
Restatement (Second) of Torts § 402A comment k (Am. Law
Inst. 1965), which applies only to products that are
unavoidably unsafe; (3) Instruction 20 gave no standard for
differentiating between a dangerous product and an
unreasonably dangerous product; and (4) Instruction 20
unfairly emphasized the Defendants' theory of the case.
[¶10] First, Instruction 20 did not misstate
South Dakota-strict-liability law. Karsts incorrectly presume
that the phrase " defective condition unreasonably
dangerous" is a single element that does not include an
unreasonably-dangerous inquiry. This Court adopted the rule
of strict liability expressed in the Restatement (Second) of
Torts § 402A. Peterson v. Safway Steel Scaffolds
Co., 400 N.W.2d 909, 912 (S.D. 1987). Under this rule, a
seller is strictly liable for physical harm caused by a
product in a defective condition unreasonably dangerous to
the user or consumer. Restatement (Second) of Torts §
402A. The rule " applies only where the defective
condition of the product makes it unreasonably
dangerous to the user or consumer." Id.
§ 402A cmt. i (emphasis added). Although we have not
formally adopted the Restatement (Third) of Torts: Products
Liability (Am. Law Inst. 1998), it similarly imposes
strict liability for defective design " when the
foreseeable risks of harm posed by the product could have
been reduced or avoided by the adoption of a reasonable
alternative design . . ., and the omission of the
alternative design renders the product not
reasonably safe [.]" Id. §
2(b) (emphasis added). Thus, both the Restatement (Second)
and Restatement (Third) rules contemplate a causal
relationship between two elements: a defect must "
make" or " render" a product unreasonably
dangerous (not reasonably safe). As we have previously said,
" [s]trict liability requires that the product be
defective and unreasonably dangerous."
Peterson, 400 N.W.2d at 912 (emphasis added).
Numerous courts--in cases involving a variety of products
that are not inherently dangerous--agree.
[¶11] Karsts further contend that
Instruction 20 was erroneously taken from Restatement
(Second) of Torts § 402A comment k, which applies only
to products that are unavoidably unsafe (for example,
medicines that cause serious side effects but treat deadly
illnesses). Karsts point out that the tarp system was not
such a product. Instruction 20 was not, however, taken from
comment k. Rather, each of Instruction 20's three
sentences finds its origin in Restatement (Second) of Torts
§ 402A comment i, which states in part:
The rule stated in this Section applies only where
the defective condition of the product makes it
unreasonably dangerous to the user or consumer. Many products
cannot possibly be made entirely safe . . . . The article
sold must be dangerous to an extent beyond that
which would be contemplated by the ordinary consumer who
purchases it, with the ordinary knowledge common to the
community as to its characteristics.
(Emphasis added.) Thus, Instruction 20's first sentence
(" A product can be dangerous without being unreasonably
dangerous." ) and third sentence (" A product is
not in a defective or unreasonably dangerous condition merely
because it is possible to be injured while using it." )
come from the second and third sentences of comment i quoted
here. Likewise, Instruction 20's second sentence ("
Even if a product is defective in some manner, you must find
that the defect renders the product 'unreasonably'
dangerous." ) comes from the first sentence of comment i
quoted here. Instruction 20 was not improperly taken from
§ 402A comment k language that applies only to products
that are unavoidably unsafe.
[¶12] Karsts next contend that additional
instructions were required to define unreasonably
dangerous. Instruction 21, however, told the
jury: " In determining whether the . . . [t]arp system
was defective and unreasonably dangerous you may consider
whether Shur Co. complied with the generally recognized state
of the art . . . ." Moreover, it is " not error to
refuse to amplify the instructions given which substantially
cover the principle embodied in the requested
instructions." Degen, 90 S.D. at 407, 241
N.W.2d at 706-07 (quoting Peters v. Hoisington, 72
S.D. 542, 554, 37 N.W.2d 410, 416 (1949)). Here, the root
words at issue are reasonable and
dangerous. These are ordinary words without unusual
legal meaning, and absent a request for a more specific
instruction, instructing the jury with ordinary words is
generally considered sufficient. See Jorgenson
v. Dronebarger, 82 S.D. 213, 218, 143 N.W.2d 869, 872
(1966). Although we think a definition should
be given if requested, there was no request for additional
specificity in this case.
[¶13] Karsts finally argue that Instruction
20 unfairly emphasized Defendants' theory of the case.
But as we have previously explained, " [s]trict
liability requires that the product be defective and
unreasonably dangerous." Peterson, 400 N.W.2d
at 912 (emphasis added). Accordingly, Instruction 18 required
Karsts to prove both elements: that the tarp system "
was in a defective condition which made it unreasonably
dangerous to Richard Karst[.]" Instruction 20 simply
recognized that because both elements were required,
it was not sufficient for the jury to determine merely that
some danger was attendant to use of the product. Thus,
Instruction 20 did not unfairly emphasize a defense
theory of the case. Karsts also failed to object to
Instruction 20 on this ground. " An attorney must be
clear when objecting to jury instructions 'so the trial
court is advised of what possible errors exist and be granted
the opportunity to correct any instructions.'"
Parker v. Casa Del Rey-Rapid City, Inc., 2002 S.D.
29, ¶ 15, 641 N.W.2d 112, 118 (quoting Sundt Corp. v.
State by & through S.D. Dep't of Transp.,
1997 S.D. 91, ¶ 17, 566 N.W.2d 476, 480). Therefore, Karsts
waived this argument for appeal.
[¶14] We conclude that when considered as a
whole, the instructions correctly stated the law of strict
liability in this jurisdiction. The circuit court did not err
in giving Instruction 20.
Judgment--Failure to Warn
[¶15] 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." SDCL 15-6-56(c). " The evidence
must be viewed most favorably to the nonmoving party and
reasonable doubts should be resolved against the moving
party. The nonmoving party, however, must present specific
facts showing that a genuine, material issue for trial
exists." Peters v. Great W. Bank, Inc., 2015
S.D. 4, ¶ 5, 859 N.W.2d 618, 621 (quoting Saathoff v.
Kuhlman, 2009 S.D. 17, ¶ 11, 763 N.W.2d 800, 804).
" Entry of summary judgment is mandated against a party
who fails to make a showing sufficient to establish the
existence of an element essential to that party's case,
and on which that party will bear the burden of proof at
trial." Nationwide Mut. Ins. Co. v. Barton Solvents
Inc., 2014 S.D. 70, ¶ 10, 855 N.W.2d 145, 149 (quoting
Hass v. Wentzlaff, 2012 S.D. 50, ¶ 11, 816 N.W.2d
96, 101). A showing is not sufficient unless " the party
challenging summary judgment substantiate[s its] allegations
with sufficient probative evidence that would permit a
finding in [its] favor on more than mere speculation,
conjecture, or fantasy." Id. (quoting Quinn
v. Farmers Ins. Exch., 2014 S.D. 14, ¶ 20, 844 N.W.2d
[¶16] The circuit court granted Wilson's
and Shur's motions for summary judgment on all
failure-to-warn claims. The court observed that Karsts did
not identify any evidence that Richard ever read the provided
warnings. Therefore, the court concluded as a matter of law
that Karsts were unable to establish a causal link between
the alleged inadequate warnings and Richard's injury. On
appeal, Karsts argue that summary judgment was inappropriate
for several reasons. First, they contend that the failure to
read an irrelevant warning does not bar a failure-to-warn
claim. Second, they contend that they presented sufficient
evidence to raise a genuine factual dispute whether Richard
read the manual. Third, they contend that Richard is entitled
to a presumption that he read the warnings. Fourth, they
contend that the failure to read a warning does not preclude
a failure-to-warn claim alleging improper placement of a
[¶17] Karsts first contend that the failure
to read an irrelevant warning does not bar a failure-to-warn
claim. They assert that the provided warnings were irrelevant
because " Defendants did not warn of the hazards
associated with removing the sleeve when the tarp was stuck
open." They also assert that the logic of the
instruction manual was circular: according to the manual, the
first step in converting the system from electric to manual
is to " close the tarp," but the first step in
operating the tarp (when the electric system fails) is to
convert the system from electric to manual. Thus, Karsts
contend that notwithstanding the lack of a " causal link
between the warnings and the incident, a purported failure to
read [irrelevant] warnings . . . should not preclude a claim
based on the lack of warnings about performing an 'open
tarp' conversion." Defendants respond that " it
is simply impossible for a plaintiff who cannot prove that he
or she ever read and relied upon a warning to show that
alleged inadequacies in the warning's content caused the
[¶18] Causation is a necessary element of a
failure-to-warn claim, whether pursued under a negligence or
strict-liability theory. Barton Solvents, 2014 S.D.
70, ¶ 17, 855 N.W.2d at 150-51. In order to prove causation
in a failure-to-warn claim, " [a] plaintiff must show
that adequate warnings would have made a difference in the
outcome, that is, that they would have been followed."
Gen. Motors Corp. v. Saenz ex rel. Saenz, 873 S.W.2d
353, 357 (Tex. 1993); see also Payne v. Novartis
Pharms. Corp., 767 F.3d 526, 531-32 (6th Cir. 2014)
(" The key inquiry is whether, 'had additional
warnings been given, the plaintiff would not have sustained
her injuries.'" (quoting Smith v. Pfizer
Inc., 688 F.Supp.2d 735, 746 (M.D. Tenn. 2010))). A
" [p]laintiff's failure to read the available
warning and instruction literature harms the ability to prove
that a different warning would have changed his
conduct." 2 David G. Owen & Mary J. Davis, Owen &
Davis on Prods. Liab. § 11:20 (4th ed. 2014).
Therefore, courts generally hold that a plaintiff's
failure to read a given warning precludes establishment of
the causation element even if the warning is arguably
inadequate. See Johnson v. Niagara Mach. & Tool
Works, 666 F.2d 1223, 1225 (8th Cir. 1981) (" [A]n
issue as to the adequacy of a warning necessarily presupposes
that the operator has read the warning." ); Palmer
v. Volkswagen of Am., Inc., 904 So.2d 1077, 1084 (Miss.
2005) (" The presence or absence of anything in an
unread owner's manual simply cannot proximately cause a
plaintiff's damages." ); Burley v. Kytec
Innovative Sports Equip., Inc., 2007 S.D. 82, ¶ 37 n.7,
737 N.W.2d 397, 410 n.7 (accepting premise of defendant's
argument that a student athlete injured by exercise equipment
did not read the instruction manual and therefore could not
establish proximate cause, but rejecting argument because the
athlete's trainer, who was responsible for and oversaw
the athlete's use of the equipment, had read the manual).
The circuit court correctly concluded that Richard's
failure to read the provided warnings would be fatal to a
liability theory premised on the content of those warnings
because causation could not be established.
[¶19] Karsts alternatively contend that they
presented " evidence that, when viewed in the light most
favorable to the Karsts, [established that Richard] read the
warnings." It is not disputed that due to the nature of
his injury, Richard cannot remember whether he read the
provided warnings prior to the accident. Therefore, Karsts
rely on the depositions of three other witnesses. First,
Wilson's sales manager, Richard Gase, stated in his
deposition that he " would . . . tell customers that
[he] thought there was very good information in [the]
owner's manual and that it was important to read through
it." Second, one of Karsts' expert witness, Dr.
Laughery, opined in his deposition that Richard " was a
guy who wasn't in a hurry . . . and . . . who, by all the
things that I read, was responsible, that had he been given
adequate information, adequate warnings, he would have
complied with them." Finally, one of the employees at
the grain elevator, Todd Hauck, stated in his deposition that
he saw Richard climb up to the work platform on the back of
the trailer, climb down and read " something," ask
for a wrench, then climb back up to the platform and release
the flex arm from the roll tube.
[¶20] The foregoing evidence was not
sufficient to resist summary judgment. " Where the
theory of liability is failure to warn adequately, the
evidence must be such as to support a reasonable inference,
rather than a guess, that the existence of an adequate
warning may have prevented the accident before the issue of
causation may be submitted to the jury." Conti v.
Ford Motor Co., 743 F.2d 195, 198 (3d. Cir. 1984);
see also Barton Solvents, 2014 S.D. 70, ¶
10, 855 N.W.2d at 149. Mr. Gase's statement about
unidentified customers and " good information"
creates no inference that Richard actually read the specific
warnings that are at issue in this case. So also, Dr.
Laughery made clear that his opinion whether Richard may have
read the supplied warnings prior to the accident was
speculative. Dr. Laughery conceded that he was not making any
assumptions on whether Richard read the owner's manual
prior to the accident. In fact, Dr. Laughery indicated that
Richard's behavior was typical of someone who either did
not recall that the owner's manual included a section on
converting from electric to manual use or someone who had not
read the manual in the first place. Finally, Mr. Hauck could
not identify what it was that he saw Richard read immediately
prior to the accident. Mr. Hauck was not even sure whether
the reading material consisted of a book or a single sheet of
paper. Moreover, Richard testified that he kept all of the
instruction manuals for his trailers in his workshop, and the
relevant manual was not found at the accident site where Mr.
Hauck observed Richard reading " something." Thus,
Karsts' evidence was insufficient to create a question of
fact for a jury: it did not " permit a finding in
[their] favor on more than mere speculation, conjecture, or
fantasy." See Barton Solvents, 2014
S.D. 70, ¶ 10, 855 N.W.2d at 149 (quoting Quinn,
2014 S.D. 14, ¶ 20, 844 N.W.2d at 624-25).
[¶21] Nevertheless, Karsts contend that
Richard was entitled to a presumption that he read the
provided warnings prior to the accident. They point out that
in the context of moving-vehicle accidents, " [t]here is
a presumption, in the absence of evidence to the contrary,
that a person killed in an accident was exercising due care
for his protection at, and immediately before, the
accident." Dehnert v. Garrett Feed Co., 84 S.D.
233, 236, 169 N.W.2d 719, 721 (1969). They further point out
that this presumption has been extended to accidents
resulting in amnesic plaintiffs. SeeSchultz &
Lindsay Constr. Co. v. Erickson, 352 F.2d 425, 434 (8th
Cir. 1965). According to Karsts, " reading warnings is