contributory negligence instruction in South Dakota

2006If there is some evidence bearing on the issue, a reviewing court will not disturb the trial court's giving of an instruction." Treib v. Kern, 513 N.W.2d 908, 912 (S.D.1994) (emphasis added) (quoting Howard v. Sanborn, 483 N.W.2d 796, 797 (S.D.1992) (quoting Gerlach v. Ethan Coop Lumber Ass'n, 478 N.W.2d 828, 830 (S.D.1991) (quoting Zee v. Assam, 336 N.W.2d 162, 164 (S.D.1983)))). [¶ 25.] I respectfully dissent because in this case, there was evidence supporting a contributory negligence defense.

2006If there is some evidence bearing on the issue, a reviewing court will not disturb the trial court’s giving of an instruction.” Treib v. Kern, 513 N.W.2d 908, 912 (S.D.1994) (emphasis added) (quoting Howard v. Sanborn, 483 N.W.2d 796, 797 (S.D.1992) (quoting Gerlach v. Ethan Coop Lumber Ass’n, 478 N.W.2d 828, 830 (S.D.1991) (quoting Zee v. Assam, 336 N.W.2d 162, 164 (S.D.1983)))). [¶ 25.] I respectfully dissent because in this case, there was evidence supporting a contributory negligence defense.

2009Whether the trial court abused its discretion in refusing a contributory negligence instruction. [¶ 24.] “Contributory negligence is negligence on the part of a plaintiff which, when combined with the negligence of a defendant, contributes as a legal cause in the bringing about of the injury to the plaintiff.” Steffen v. Schwan’s Sales Enters., Inc., 2006 SD 41, ¶ 12 , 713 N.W.2d 614, 619 (quoting S.D.

2009Whether the trial court abused its discretion in refusing a contributory negligence instruction. [¶ 24.] “Contributory negligence is negligence on the part of a plaintiff which, when combined with the negligence of a defendant, contributes as a legal cause in the bringing about of the injury to the plaintiff.” Steffen v. Schwan’s Sales Enters., Inc., 2006 SD 41, ¶ 12 , 713 N.W.2d 614, 619 (quoting S.D.

2009See Johnson v. Armfield, 2003 SD 134, ¶¶ 11-15 , 672 N.W.2d 478, 481-82 (holding that the trial court erred in allowing a contributory negligence instruction based on a ‘Toare assertion” of alleged negligence).

2009See Johnson v. Armfield, 2003 SD 134, ¶¶ 11-15 , 672 N.W.2d 478, 481-82 (holding that the trial court erred in allowing a contributory negligence instruction based on a ‘Toare assertion” of alleged negligence).

2006If there is some evidence bearing on the issue, a reviewing court will not disturb the trial court's giving of an instruction." Treib v. Kern, 513 N.W.2d 908, 912 (S.D.1994) (emphasis added) (quoting Howard v. Sanborn, 483 N.W.2d 796, 797 (S.D.1992) (quoting Gerlach v. Ethan Coop Lumber Ass'n, 478 N.W.2d 828, 830 (S.D.1991) (quoting Zee v. Assam, 336 N.W.2d 162, 164 (S.D.1983)))). [¶ 25.] I respectfully dissent because in this case, there was evidence supporting a contributory negligence defense.

2006If there is some evidence bearing on the issue, a reviewing court will not disturb the trial court’s giving of an instruction.” Treib v. Kern, 513 N.W.2d 908, 912 (S.D.1994) (emphasis added) (quoting Howard v. Sanborn, 483 N.W.2d 796, 797 (S.D.1992) (quoting Gerlach v. Ethan Coop Lumber Ass’n, 478 N.W.2d 828, 830 (S.D.1991) (quoting Zee v. Assam, 336 N.W.2d 162, 164 (S.D.1983)))). [¶ 25.] I respectfully dissent because in this case, there was evidence supporting a contributory negligence defense.

2006Coop., Inc., 2006 SD 21, ¶ 10 , 711 N.W.2d 612, 615 (citing Luke v. Deal, 2005 SD 6, ¶ 11 , 692 N.W.2d 165, 168 ; Parker, 2002 SD 29 , ¶5, 641 N.W.2d at 116 ). [¶27.] Before examining the evidence supporting the trial court’s decision to give a contributory negligence instruction, we must first review the relevant standards of care.

2006Coop., Inc., 2006 SD 21, ¶ 10 , 711 N.W.2d 612, 615 (citing Luke v. Deal, 2005 SD 6, ¶ 11 , 692 N.W.2d 165, 168 ; Parker, 2002 SD 29 , ¶5, 641 N.W.2d at 116 ). [¶27.] Before examining the evidence supporting the trial court’s decision to give a contributory negligence instruction, we must first review the relevant standards of care.

2006Washington follows the rule that: "There must be substantial evidence that plaintiff's own negligence proximately contributed to the injury or evidence from, which such negligence can be reasonably inferred." Bonica v. Gracias, 84 Wash.2d 99, 100 , 524 P.2d 232, 233 (Wash 1974) (involving a case where "no evidence” of contributory negligence was elicited) (citing Jackson v. Seattle, 15 Wash.2d 505 , 131 P.2d 172 (1942)) (emphasis added).

2006Washington follows the rule that: "There must be substantial evidence that plaintiff's own negligence proximately contributed to the injury or evidence from, which such negligence can be reasonably inferred." Bonica v. Gracias, 84 Wash.2d 99, 100 , 524 P.2d 232, 233 (Wash 1974) (involving a case where "no evidence” of contributory negligence was elicited) (citing Jackson v. Seattle, 15 Wash.2d 505 , 131 P.2d 172 (1942)) (emphasis added).

2006If there is some evidence bearing on the issue, a reviewing court will not disturb the trial court's giving of an instruction." Treib v. Kern, 513 N.W.2d 908, 912 (S.D.1994) (emphasis added) (quoting Howard v. Sanborn, 483 N.W.2d 796, 797 (S.D.1992) (quoting Gerlach v. Ethan Coop Lumber Ass'n, 478 N.W.2d 828, 830 (S.D.1991) (quoting Zee v. Assam, 336 N.W.2d 162, 164 (S.D.1983)))). [¶ 25.] I respectfully dissent because in this case, there was evidence supporting a contributory negligence defense.

2006If there is some evidence bearing on the issue, a reviewing court will not disturb the trial court’s giving of an instruction.” Treib v. Kern, 513 N.W.2d 908, 912 (S.D.1994) (emphasis added) (quoting Howard v. Sanborn, 483 N.W.2d 796, 797 (S.D.1992) (quoting Gerlach v. Ethan Coop Lumber Ass’n, 478 N.W.2d 828, 830 (S.D.1991) (quoting Zee v. Assam, 336 N.W.2d 162, 164 (S.D.1983)))). [¶ 25.] I respectfully dissent because in this case, there was evidence supporting a contributory negligence defense.

2006If there is some evidence bearing on the issue, a reviewing court will not disturb the trial court's giving of an instruction." Treib v. Kern, 513 N.W.2d 908, 912 (S.D.1994) (emphasis added) (quoting Howard v. Sanborn, 483 N.W.2d 796, 797 (S.D.1992) (quoting Gerlach v. Ethan Coop Lumber Ass'n, 478 N.W.2d 828, 830 (S.D.1991) (quoting Zee v. Assam, 336 N.W.2d 162, 164 (S.D.1983)))). [¶ 25.] I respectfully dissent because in this case, there was evidence supporting a contributory negligence defense.

2006If there is some evidence bearing on the issue, a reviewing court will not disturb the trial court’s giving of an instruction.” Treib v. Kern, 513 N.W.2d 908, 912 (S.D.1994) (emphasis added) (quoting Howard v. Sanborn, 483 N.W.2d 796, 797 (S.D.1992) (quoting Gerlach v. Ethan Coop Lumber Ass’n, 478 N.W.2d 828, 830 (S.D.1991) (quoting Zee v. Assam, 336 N.W.2d 162, 164 (S.D.1983)))). [¶ 25.] I respectfully dissent because in this case, there was evidence supporting a contributory negligence defense.

2005See McNamara v. Honeyman, 406 Mass. 43 , 546 N.E.2d 139, 146-147 (1989) (there can be no comparative negligence where the defendant’s duty includes preventing the self-destructive acts which caused the plaintiffs injury); Cowan v. Doering, 215 N.J.Super. 484 , 522 A.2d 444, 448 (App.Div.1987) (a contributory negligence instruction should not be given in a suicide case because the “suicidal conduct constituted one of the very symptoms for which [the patient] was being treated.”); Cole v. Multnomah County, 39 Or.App. 211 , 592 P.2d 221, 223 (1979) (a defendant’s liability may not be reduced by c

2005See McNamara v. Honeyman, 406 Mass. 43 , 546 N.E.2d 139, 146-147 (1989) (there can be no comparative negligence where the defendant’s duty includes preventing the self-destructive acts which caused the plaintiffs injury); Cowan v. Doering, 215 N.J.Super. 484 , 522 A.2d 444, 448 (App.Div.1987) (a contributory negligence instruction should not be given in a suicide case because the “suicidal conduct constituted one of the very symptoms for which [the patient] was being treated.”); Cole v. Multnomah County, 39 Or.App. 211 , 592 P.2d 221, 223 (1979) (a defendant’s liability may not be reduced by c

2005See McNamara v. Honeyman, 406 Mass. 43 , 546 N.E.2d 139, 146-147 (1989) (there can be no comparative negligence where the defendant’s duty includes preventing the self-destructive acts which caused the plaintiffs injury); Cowan v. Doering, 215 N.J.Super. 484 , 522 A.2d 444, 448 (App.Div.1987) (a contributory negligence instruction should not be given in a suicide case because the “suicidal conduct constituted one of the very symptoms for which [the patient] was being treated.”); Cole v. Multnomah County, 39 Or.App. 211 , 592 P.2d 221, 223 (1979) (a defendant’s liability may not be reduced by c

2005See McNamara v. Honeyman, 406 Mass. 43 , 546 N.E.2d 139, 146-147 (1989) (there can be no comparative negligence where the defendant’s duty includes preventing the self-destructive acts which caused the plaintiffs injury); Cowan v. Doering, 215 N.J.Super. 484 , 522 A.2d 444, 448 (App.Div.1987) (a contributory negligence instruction should not be given in a suicide case because the “suicidal conduct constituted one of the very symptoms for which [the patient] was being treated.”); Cole v. Multnomah County, 39 Or.App. 211 , 592 P.2d 221, 223 (1979) (a defendant’s liability may not be reduced by c

2005See McNamara v. Honeyman, 406 Mass. 43 , 546 N.E.2d 139, 146-147 (1989) (there can be no comparative negligence where the defendant’s duty includes preventing the self-destructive acts which caused the plaintiffs injury); Cowan v. Doering, 215 N.J.Super. 484 , 522 A.2d 444, 448 (App.Div.1987) (a contributory negligence instruction should not be given in a suicide case because the “suicidal conduct constituted one of the very symptoms for which [the patient] was being treated.”); Cole v. Multnomah County, 39 Or.App. 211 , 592 P.2d 221, 223 (1979) (a defendant’s liability may not be reduced by c

2005See McNamara v. Honeyman, 406 Mass. 43 , 546 N.E.2d 139, 146-147 (1989) (there can be no comparative negligence where the defendant’s duty includes preventing the self-destructive acts which caused the plaintiffs injury); Cowan v. Doering, 215 N.J.Super. 484 , 522 A.2d 444, 448 (App.Div.1987) (a contributory negligence instruction should not be given in a suicide case because the “suicidal conduct constituted one of the very symptoms for which [the patient] was being treated.”); Cole v. Multnomah County, 39 Or.App. 211 , 592 P.2d 221, 223 (1979) (a defendant’s liability may not be reduced by c

2005See McNamara v. Honeyman, 406 Mass. 43 , 546 N.E.2d 139, 146-147 (1989) (there can be no comparative negligence where the defendant’s duty includes preventing the self-destructive acts which caused the plaintiffs injury); Cowan v. Doering, 215 N.J.Super. 484 , 522 A.2d 444, 448 (App.Div.1987) (a contributory negligence instruction should not be given in a suicide case because the “suicidal conduct constituted one of the very symptoms for which [the patient] was being treated.”); Cole v. Multnomah County, 39 Or.App. 211 , 592 P.2d 221, 223 (1979) (a defendant’s liability may not be reduced by c

2005See McNamara v. Honeyman, 406 Mass. 43 , 546 N.E.2d 139, 146-147 (1989) (there can be no comparative negligence where the defendant’s duty includes preventing the self-destructive acts which caused the plaintiffs injury); Cowan v. Doering, 215 N.J.Super. 484 , 522 A.2d 444, 448 (App.Div.1987) (a contributory negligence instruction should not be given in a suicide case because the “suicidal conduct constituted one of the very symptoms for which [the patient] was being treated.”); Cole v. Multnomah County, 39 Or.App. 211 , 592 P.2d 221, 223 (1979) (a defendant’s liability may not be reduced by c

2004In order to prevail, error must be shown “which in all probability produced some effect upon the jury’s verdict and is harmful to the rights of the party assigning it.” *429 Kjerstad v. Ravellette Publications Inc., 517 N.W.2d 419, 426 (S.D.1994) (citing State v. Michalek, 407 N.W.2d 815, 818 (S.D.1987)). [¶ 30.] We believe Christenson has failed to show the trial court’s denial of her motion to remove the contributory negligence instruction prejudiced her in any manner.

2004In order to prevail, error must be shown “which in all probability produced some effect upon the jury’s verdict and is harmful to the rights of the party assigning it.” *429 Kjerstad v. Ravellette Publications Inc., 517 N.W.2d 419, 426 (S.D.1994) (citing State v. Michalek, 407 N.W.2d 815, 818 (S.D.1987)). [¶ 30.] We believe Christenson has failed to show the trial court’s denial of her motion to remove the contributory negligence instruction prejudiced her in any manner.