Albers v. Kuper

518 N.W.2d 745, 1994 S.D. LEXIS 87, 1994 WL 287757

• Court: South Dakota Supreme Court
• Decided: June 29, 1994
• Docket: 18166
• Status: Published

Opinions

AMUNDSON, Justice.

Sharon Albers appeals from a verdict and judgment for Myron and Ruth Kuper on Albers’ claim for injuries from a dog/bicycle accident. We reverse and remand.

FACTS

At approximately 9:00 p.m. on August 23, 1989, Myron and Ruth Kuper (Kupers) sat on the back step of their house enjoying the evening. Their cocker spaniel, Toots, was in the backyard with them.

As darkness approached, Sharon Albers (Albers), Kupers’ next door neighbor, was returning from a bicycle ride. As she passed in front of Kupers’ house, Toots ran out on the sidewalk. Toots and the bicycle collided, causing Albers to fall and fracture her wrist.

The cause of the accident is disputed. Al-bers claims that the dog struck her front wheel. While Kupers contend that immediately after the accident Albers admitted hitting the dog.

Albers brought this action, alleging that Kupers had negligently allowed their dog to wander on a public sidewalk with knowledge that the dog had a propensity to chase individuals. The trial court scheduled a two-day jury trial for this matter. A jury rendered a verdict for Kupers. Albers appeals.

ISSUES

1. Did the trial court abuse its discretion by not reopening the case introduction of a Lennox city ordinance prohibiting dogs from running at large?

2. Did the trial court err by refusing Albers’ proposed jury instructions?

3. Did the trial court err by instructing the jury that neither party violated an ordinance?

4. Did the trial court err by allowing testimony regarding Albers’ dog?

DISCUSSION

Our decision on the first issue eliminates the need to address the other, issues raised on appeal.

ISSUE 1

Did the trial court abuse its discretion by not reopening the case for introduction of a Lennox city ordinance prohibiting dogs from running at large?

On the first day of trial, all testimony was completed and the parties rested. During the settling of jury instructions early the next day, the trial court proposed the following instruction:

Instruction No. 12

At the time of this accident, neither party was shown to have violated any ordinance or statute relating to the riding of a bicycle or the restraint of a dog. This, however, does not mean that either party was free of negligence as defined in these instructions.

Lennox City Ordinance 5.0301 prohibited animals running at large, however, the ordinance had not been offered into evidence.

After reviewing instruction No. 12, Albers asked the court to reopen the ease to introduce a certified copy of the ordinance because it had not been offered into evidence. The court refused to reopen because it would cause delay and there was no evidence in the record to justify giving the instruction. Alb-ers contends that the trial court abused its discretion by denying her request to reopen the case in view of the court’s sua sponte insertion of the violation of ordinance issue into its instruction.

The decision to reopen a ease after the parties have rested is a matter within the sound discretion of the trial court. Myron v. Coil, 82 S.D. 180, 143 N.W.2d 738 (1966). “The trial court has a wide discretion in passing on a motion to reopen, and such discretion is to be liberally exercised in behalf of allowing the whole case to be presented, for the best advancement of the ends of justice.” Rosen’s Inc. v. Juhnke, 513 N.W.2d 575, 577 (S.D.1994) (quoting 88 C.J.S. Trial § 104 (1955)).

In this case, the trial court refused to reopen the ease on the morning of the second day of a two-day trial. All testimony had been completed and closing arguments were all that remained. When this request to reopen was presented, the trial was ahead of schedule. This ordinance had now become a material part of Albers’ case in light of instruction No. 12. The trial court should have reopened the ease to allow the ordinance to be introduced into evidence. Submitting a certified copy of a city ordinance is a relatively simple task which would not have caused great delay in submitting the case to the fact-finder. See Northwestern Nat'l Bank of Sioux Falls v. Brandon, 88 S.D. 453, 221 N.W.2d 12 (1974).

There was sufficient conflict in the evidence that the jury could have found Toots to be running at large, in violation of the ordinance. Whether the ordinance was violated presents a question for the jury in deciding a negligence issue. See Stevens v. Wood Sawmill, Inc., 426 N.W.2d 13 (S.D.1988).

The facts of this ease show an abuse of discretion by the trial court in denying the motion to reopen this case. “Admission of more evidence was necessary for a proper and just disposition.” Rosen’s, 513 N.W.2d at 578 (citing 88 C.J.S. Trial § 108 (1955)).

This case is reversed and remanded for a new trial.

MILLER, C.J., and HENDERSON, J., concur. WUEST, J., concurs specially. SABERS, J., concurs in part and concurs specially in part.