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Jensen v. Menard, Inc.

Supreme Court of South Dakota

February 7, 2018

BONITA R. JENSEN, individually and as the Personal Representative of the Estate of RONALD MILTON JENSEN, Deceased, Plaintiff and Appellee,
v.
MENARD, INC., Defendant and Appellant.

          ARGUED OCTOBER 2, 2017

         APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT DAVISON COUNTY, SOUTH DAKOTA THE HONORABLE PATRICK T. SMITH Judge

          SCOTT G. HOY CARLETON R. HOY JAMES L. HOY of Hoy Trial Lawyers, Prof. LLC Sioux Falls, South Dakota MICHAEL W. STRAIN Morman Law Firm Sturgis, South Dakota Attorneys for plaintiff and appellee.

          HILARY L. WILLIAMSON WILLIAM P. FULLER of Fuller & Williamson, LLP Sioux Falls, South Dakota Attorneys for defendant and appellant.

          KERN, JUSTICE

         [¶1.] Ronald Jensen visited a Menard Inc. (Menards) store in Mitchell, South Dakota, to purchase plywood sheets. An employee transported the plywood on a single-rail cart outside to the back of Ronald's truck. While loading the sheets into the vehicle, a strong gust of wind moved the cart and caused the plywood to tip over. The plywood fell on Ronald, resulting in severe injuries. Ronald sued Menards for negligence, and his wife sued for loss of consortium. At trial, the circuit court denied Menards' request for an instruction on assumption of the risk. The jury returned a verdict in favor of Ronald's wife and estate. Menards appeals. We affirm.

         Facts and Procedural History

         [¶2.] On August 1, 2012, Ronald Jensen and Don Farnam, Ronald's brother- in-law, visited the Menards in Mitchell, South Dakota. Ronald, a 71-year-old man, needed plywood to finish a tack room in his barn. Ronald was still fairly mobile and physically fit despite suffering a spinal-cord injury in 1977. As a result of the injury, Ronald's ability to perform physical tasks diminished considerably, and he experienced some issues with agility from the waist down. For example, Ronald lacked feeling in his feet, and his right leg gave him difficulty while walking, requiring the use of a cane. Nevertheless, Farnam described Ronald as an active individual.

         [¶3.] After purchasing seven four-by-eight sheets of plywood, Ronald drove his pickup around back to the store's security shack to gain access to the lumberyard. Instead of pulling into the bay, Ronald parked the truck parallel to the south side of the building. Clint Weyand, a Menards employee, observed Ronald and Farnam waiting outside. Without being asked, Weyand took Ronald's invoice and, unable to find an available flat cart, loaded the plywood onto a single-rail cart. Weyand placed the sheets vertically so that they leaned against the rail at an angle. The single-rail cart did not have brakes or locks on the wheels, and Weyand estimated that the sheets altogether weighed at least 300 pounds. Weyand then pushed the cart outside to the rear of the pickup.

         [¶4.] Weyand and Ronald began placing the boards onto the flatbed of the pickup. According to Weyand, Ronald helped tip and guide the boards over the tailgate while Weyand slid them into the back of the pickup. Weyand did not observe Ronald using a cane and did not think Ronald had a disability. Both Weyand and Farnam recall it being windy that day. After loading the first sheet of plywood, a strong, southward gust began moving the cart. Weyand unsuccessfully attempted to stop the cart with his elbow, and the plywood loaded on the cart- unsecured by anything-tipped over. Farnam, who was looking off in the distance, heard someone say "grab it." Turning around, Farnam saw Ronald lose his balance. Falling, Ronald struck his head against either the plywood, the tailgate of the truck, or some other hard surface.

         [¶5.] Ronald, having fallen on top of the plywood, told Farnam that he broke his neck and that he could not move. Another Menards employee came outside to assist. When paramedics arrived, Ronald stated he could not feel his legs. An ambulance took Ronald to the emergency room at Queen of Peace Hospital. Ronald underwent surgery for cervical fractures and dislocations, and the incident left Ronald a quadriplegic. Additionally, Ronald required a tracheostomy so that he could be placed on a ventilator permanently. In September 2012, Ronald, while still undergoing rehabilitation, was diagnosed with an aggressive type of bladder cancer. Ronald then transferred to a long-term nursing facility in Lincoln, Nebraska, where he lived for several months until he passed away on January 31, 2013.

         [¶6.] Before his death, Ronald and his wife Bonita Jensen (Jensen) had sued Menards. They alleged that Weyand acted negligently in handling the plywood and failed to recognize unsafe weather conditions requiring additional safety precautions. Jensen also brought a claim for loss of consortium. Following Ronald's death, Jensen was appointed as personal representative of Ronald's estate (the Estate) and substituted as the plaintiff in Ronald's action.

         [¶7.] The case was tried before a jury from October 31, 2016, through November 3, 2016. Jensen's expert witness testified that Menards' safety protocols did not meet the appropriate standard of care and that a double-rail cart would have been safer for loading plywood. Menards raised affirmative defenses, including assumption of the risk and contributory negligence. At the close of evidence, Jensen moved for judgment as a matter of law on both defenses. The court took the issue under advisement. While settling jury instructions the following day, Menards objected to the court's refusal to instruct the jury on assumption of the risk, relying on Ballard v. Happy Jack's Supper Club, 425 N.W.2d 385 (S.D. 1988). The court, after hearing argument from the parties, indicated it would submit an instruction on contributory negligence but not assumption of the risk. The court distinguished Ballard, reasoning that in Ballard, "you had an unattended sidewalk with a curb that someone tripped on that was, allegedly, negligently maintained in some fashion, " whereas Jensen's and the Estate's claim arose out of "affirmative actions of an employee, which is more in flux than a stationary curb[.]"

         [¶8.] The jury returned a verdict in favor of Jensen and the Estate, awarding $2, 295, 971.97. Menards appeals, raising two issues for our review, which we consolidate as: Whether the circuit court ...


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