CONSIDERED ON BRIEFS ON JANUARY 8, 2018
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 Attorneys for defendant and appellee.
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 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.
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 ...