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Tammen v. K & K Management Services, Inc.

Supreme Court of South Dakota

May 22, 2019

SHIRLEY TAMMEN, Plaintiff and Appellant,
K & K MANAGEMENT SERVICES, INC./ FRYN' PAN, Defendant and Appellee.

          ARGUED ON MARCH 26, 2019


          N. DEAN NASSER, JR. of Nasser Law Offices, P.C. Sioux Falls, South Dakota Attorneys for plaintiff and appellant.

          ERIC C. SCHULTE MICHAEL L. SNYDER of Davenport Evans Hurwitz & Smith, LLP Sioux Falls, South Dakota Attorneys for defendant and appellee.


         [¶1.] In this slip-and-fall case, the jury returned a verdict finding the business establishment not negligent. Plaintiff appeals, asserting multiple errors related to the jury instructions. We affirm.


         [¶2.] On January 31, 2014, Shirley Tammen and her husband, Ernest, arrived at the Fryn' Pan Restaurant (Restaurant) in Sioux Falls, South Dakota to eat lunch. After Ernest parked the couple's vehicle, the two walked across the parking lot toward the Restaurant's sidewalk. They later explained that they had noticed the parking lot and sidewalk were mostly free of snow and ice. The two took the most direct path to the Restaurant by walking across the parking lot and between two parked cars. In doing so, Ernest walked ahead of Shirley. Ernest turned back just as Shirley slipped and fell on ice. Shirley claimed she did not observe the ice before she slipped.

         [¶3.] Because Shirley did not initially believe she was seriously injured from the fall, she and Ernest ate lunch at the Restaurant. During their meal, however, Shirley began to have trouble moving her wrist and experienced increased pain. They reported the fall to the Restaurant, explaining to the manager that Shirley had slipped on ice between two vehicles parked in the parking lot. The manager created an incident report and later testified that he examined the area in which Shirley fell.

         [¶4.] Shirley sought medical care for her wrist and eventually underwent surgery. In October 2014, she brought suit against the Restaurant for negligence, alleging the Restaurant failed to take reasonable measures to keep the parking lot safe by removing snow and ice. The Restaurant disputed it was negligent and alternatively argued Shirley had assumed the risk and was contributorily negligent.

         [¶5.] During a three-day jury trial, the Restaurant presented evidence of its efforts to keep its parking lot and walking areas free of snow and ice. Stan Mitzel, a former general manager, and Adam Lee, the Restaurant's current general manager, testified that Restaurant employees remove snow and ice from the public sidewalk near the Restaurant and from the sidewalk surrounding the Restaurant. They further testified that the Restaurant contracts with First Rate Excavate to remove snow and ice from the parking lot. Robert VanBeek of First Rate Excavate testified that First Rate had been removing snow and ice from the Restaurant's parking lot for approximately fifteen years.

         [¶6.] According to the weather report for January 30, 2014 (the day before Shirley fell), it had snowed .91 inches and the temperature reached approximately thirty-six degrees above zero. Because of the snow fall, the Restaurant called First Rate during the evening of January 30 to remove snow and ice from the parking lot. No snow fell on the day of the incident, January 31, and the temperature reached twenty degrees above zero.

         [¶7.] VanBeek testified that First Rate uses a two-step process to remove snow and ice. First, it uses a plow to clear snow from the parking lot. Second, it applies a chemical sand to melt and keep ice from forming. VanBeek acknowledged that because the Restaurant is open twenty-four hours a day, parked cars make it difficult if not impossible for First Rate to apply sand between the vehicles. He testified that First Rate employees do not exit the sander to apply chemical sand under or between parked cars. According to VanBeek, First Rate's record reflected it spent an hour-and-a-half removing snow and ice from the parking lot on January 30. The record further reflected that it had plowed the snow in the Restaurant's parking lot and made three passes applying sand. The Restaurant did not call First Rate to return on January 31.

         [¶8.] Lee testified that when he arrived for work on the morning of January 31, he spent "a couple of minutes . . . up to five minutes" inspecting the parking lot. He claimed he observed that the sidewalks were clear and the parking lot appeared to be in good condition. He acknowledged, however, that his inspection did not specifically include walking the area in which Shirley fell. He further admitted that he personally did not shovel or salt the areas between the parked cars and also did not instruct his employees to do so.

         [¶9.] Mitzel testified as the Restaurant's representative; he is a partial owner. Mitzel could not recall if he was at the Restaurant the day Shirley fell. Therefore, he did not opine on the condition of the parking lot. He, however, explained (similar to Lee's testimony) that the Restaurant is ultimately responsible for snow removal in its parking lot and sidewalks, regardless of its contract with First Rate. Mitzel also testified about the Restaurant's drainage conduit in the parking lot. The conduit was installed in 1990 and was intended to channel water, including water from melting snow and ice, away from the parking lot and into the sewer drain. Mitzel could not recall the Restaurant having issues with pooling water in its parking lot. He, however, admitted that the area in which Shirley fell would have been in the shade.

         [¶10.] After the close of evidence, both parties moved for a judgment as a matter of law. After the court denied both motions, Shirley asked the court to strike the Restaurant's defenses of assumption of the risk and contributory negligence. The court struck assumption of risk as a defense but determined the Restaurant had presented sufficient evidence to submit the issue of contributory negligence to the jury. The parties then settled jury instructions. Shirley objected to a number of instructions related to negligence, nondelegable duties, contributory negligence, and dormant pre-existing health conditions. The court overruled her objections and denied her requested instructions on premises liability and on dormant pre-existing health conditions.

         [¶11.] The jury entered a verdict finding the Restaurant not negligent. Because it did not find the Restaurant negligent, the jury did not reach the issue of Shirley's contributory negligence. Shirley appeals, asserting the circuit court failed to give full and complete instructions to the jury and erred in rejecting her requested instructions. She further asserts the circuit court erred when it instructed the jury on the ...

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