#29054-a-MES 2020 S.D. 18
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
****
DENNIS SEDLACEK, Plaintiff and Appellant,
v.
PRUSSMAN CONTRACTING, INC., Defendant and Appellee.
APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT BROOKINGS COUNTY, SOUTH DAKOTA
THE HONORABLE DAWN M. ELSHERE Judge
RENEE H. CHRISTENSEN of Johnson & Christensen Law Office, P.C. Sioux Falls, South Dakota
EDWIN E. EVANS of Evans, Haigh & Hinton, LLP Sioux Falls, South Dakota Attorneys for plaintiff and appellant.
MICHAEL L. LUCE DANA VAN BEEK PALMER of Lynn, Jackson, Shultz & Lebrun, P.C. Sioux Falls, South Dakota Attorneys for defendant and appellee.
CONSIDERED ON BRIEFS MARCH 17, 2020 OPINION FILED 04/01/20 #29054
SALTER, Justice
[¶1.] Dennis Sedlacek sought damages for injuries allegedly sustained while
repairing a crane owned by Prussman Contracting, Inc. A jury returned a general
verdict in favor of Prussman. Sedlacek appeals, arguing the court abused its
discretion when it admonished the jury not to consider testimony regarding OSHA
standards, denied a proposed jury instruction on OSHA standards, and denied
Sedlacek’s motion for a mistrial. We affirm.
Background
[¶2.] On Friday, January 30, 2015, Dennis Sedlacek was working for his
employer, Titan Machinery, repairing a crane at Prussman Contracting’s facility in
Brookings. Two Prussman employees, Vernon “Russ” Leubner and Rick Schwartz,
were assisting Sedlacek with the repair. Leubner was operating a forklift.
Sedlacek was directing the repair and told Leubner to lower the forks, back up six
feet, and put the forks on the ground. Sedlacek then turned his back to the forklift
and moved to his right to pick up a remote control that operated the crane.
Meanwhile, unknown to Sedlacek, Leubner drove the forklift forward again and
raised the forks. When Sedlacek turned back to the left, he claims his neck struck
one of the forks. Sedlacek testified that he reacted by yelling at Schwartz, who was
standing nearby. However, both Leubner and Schwartz denied that Sedlacek was
struck.
[¶3.] Sedlacek testified that he experienced pain in his neck and back. He
reported the injury to his employer by telephone and continued working. After
completing the repair, Sedlacek returned to Sioux Falls and was advised by his
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supervisor to get evaluated at Sanford Health’s occupational medicine clinic where
he was diagnosed with contusions to his neck and trapezius muscles. Sedlacek
returned to the clinic the following Monday because he experienced increasing lower
back pain over the weekend. Despite several months of physical therapy and
chiropractic treatments, Sedlacek’s pain complaints remained unresolved. He was
later diagnosed with a pinched nerve in his low back and underwent spine fusion
surgery at the L5-S1 level, incurring over $250,000 in medical expenses and missing
seven months of work.
[¶4.] Sedlacek commenced this suit against Prussman in April 2016,
alleging general negligence. Prussman denied liability and asserted contributory
negligence and assumption of the risk as affirmative defenses. Sedlacek later
amended his complaint to add claims that Prussman failed to train and supervise
its employees.
[¶5.] In response to Sedlacek’s discovery requests, Prussman produced a
certificate showing Leubner had completed the necessary training for workplace
forklift operation and was certified as compliant with the Occupational Health and
Safety Administration (OSHA) General Industry Standards on November 10,
2015—over ten months after Sedlacek’s alleged injury. Both Sedlacek and
Prussman listed Leubner’s OSHA certification on their pretrial exhibit lists.
However, Sedlacek had not alleged a violation of OSHA standards in either version
of his complaint, and he did not propose jury instructions that used OSHA
standards to define the standard of care for Leubner or Prussman.
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[¶6.] The case was tried by a jury on June 3-7, 2019. During cross-
examination, Leubner admitted that he had previously received training on OSHA
standards for operating a forklift during his Job Corps training in 2001 and 2002.
However, Leubner acknowledged he was not certified when he started his
employment with Prussman in 2011 or in 2015 when Sedlacek claims he was
injured. Leubner testified that at the time of the alleged incident he was not aware
that OSHA regulations require recertification every three years.
[¶7.] Over objections from Prussman’s counsel, the circuit court allowed
Sedlacek’s counsel to question Leubner about specific OSHA standards. The court
also overruled Prussman’s objections when Sedlacek’s counsel asked Lyle
Prussman, president of Prussman Contracting, about OSHA standards during
cross-examination.
[¶8.] On June 6—the fourth day of trial—Sedlacek submitted a brief and, for
the first time, proposed two jury instructions regarding OSHA standards. The first
proposed jury instruction read as follows:
Evidence has been introduced in this case on the subject of the Occupational Safety and Health Administration, OSHA, standards for safe operation of a forklift. OSHA standards can be considered as evidence of the standard of care that Defendant was expected to meet.
[¶9.] The second proposed instruction contained references to 29 U.S.C. §
654 and 29 C.F.R. §1910.178, the latter of which details OSHA’s compliance
standards and requirements for forklift training. 1 Prussman objected to these
1. In the argot of the OSHA regulations, forklifts are described as “powered industrial trucks.” 29 C.F.R. § 1910.178.
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additional proposed instructions due to their late submission, further arguing that
OSHA standards were not relevant since Sedlacek had not alleged a violation of
OSHA standards in his negligence claim and had not presented expert testimony
that an OSHA violation had occurred.
[¶10.] The court agreed and denied Sedlacek’s proposed jury instructions,
citing his failure to allege an OSHA violation in either his original or amended
complaint, as well as his failure to raise a potential OSHA violation until trial.
With regard to the testimony already admitted that related to OSHA standards and
Prussman’s potential violations, the court instructed the jury not to consider the
testimony and referenced a preliminary instruction regarding the possibility that
the jury might inadvertently hear improper evidence during the course of the trial. 2
The court, however, did allow Leubner’s training certificate to remain as an exhibit
for the jury to consider.
[¶11.] Sedlacek moved for a mistrial based on the court’s order to strike
testimony regarding OSHA standards, arguing severe prejudice because “now the
Court is going to tell the jury . . . they should ignore it all which confuses and leads
the jury to believe that either we did something wrong or worse yet that OSHA
doesn’t apply . . . .” The circuit court denied the motion for a mistrial, determining
Sedlacek had failed to establish his prejudice claim.
[¶12.] The final jury instructions stated the principles of general negligence,
including legal cause.
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#29054-a-MES 2020 S.D. 18
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
****
DENNIS SEDLACEK, Plaintiff and Appellant,
v.
PRUSSMAN CONTRACTING, INC., Defendant and Appellee.
APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT BROOKINGS COUNTY, SOUTH DAKOTA
THE HONORABLE DAWN M. ELSHERE Judge
RENEE H. CHRISTENSEN of Johnson & Christensen Law Office, P.C. Sioux Falls, South Dakota
EDWIN E. EVANS of Evans, Haigh & Hinton, LLP Sioux Falls, South Dakota Attorneys for plaintiff and appellant.
MICHAEL L. LUCE DANA VAN BEEK PALMER of Lynn, Jackson, Shultz & Lebrun, P.C. Sioux Falls, South Dakota Attorneys for defendant and appellee.
CONSIDERED ON BRIEFS MARCH 17, 2020 OPINION FILED 04/01/20 #29054
SALTER, Justice
[¶1.] Dennis Sedlacek sought damages for injuries allegedly sustained while
repairing a crane owned by Prussman Contracting, Inc. A jury returned a general
verdict in favor of Prussman. Sedlacek appeals, arguing the court abused its
discretion when it admonished the jury not to consider testimony regarding OSHA
standards, denied a proposed jury instruction on OSHA standards, and denied
Sedlacek’s motion for a mistrial. We affirm.
Background
[¶2.] On Friday, January 30, 2015, Dennis Sedlacek was working for his
employer, Titan Machinery, repairing a crane at Prussman Contracting’s facility in
Brookings. Two Prussman employees, Vernon “Russ” Leubner and Rick Schwartz,
were assisting Sedlacek with the repair. Leubner was operating a forklift.
Sedlacek was directing the repair and told Leubner to lower the forks, back up six
feet, and put the forks on the ground. Sedlacek then turned his back to the forklift
and moved to his right to pick up a remote control that operated the crane.
Meanwhile, unknown to Sedlacek, Leubner drove the forklift forward again and
raised the forks. When Sedlacek turned back to the left, he claims his neck struck
one of the forks. Sedlacek testified that he reacted by yelling at Schwartz, who was
standing nearby. However, both Leubner and Schwartz denied that Sedlacek was
struck.
[¶3.] Sedlacek testified that he experienced pain in his neck and back. He
reported the injury to his employer by telephone and continued working. After
completing the repair, Sedlacek returned to Sioux Falls and was advised by his
-1- #29054
supervisor to get evaluated at Sanford Health’s occupational medicine clinic where
he was diagnosed with contusions to his neck and trapezius muscles. Sedlacek
returned to the clinic the following Monday because he experienced increasing lower
back pain over the weekend. Despite several months of physical therapy and
chiropractic treatments, Sedlacek’s pain complaints remained unresolved. He was
later diagnosed with a pinched nerve in his low back and underwent spine fusion
surgery at the L5-S1 level, incurring over $250,000 in medical expenses and missing
seven months of work.
[¶4.] Sedlacek commenced this suit against Prussman in April 2016,
alleging general negligence. Prussman denied liability and asserted contributory
negligence and assumption of the risk as affirmative defenses. Sedlacek later
amended his complaint to add claims that Prussman failed to train and supervise
its employees.
[¶5.] In response to Sedlacek’s discovery requests, Prussman produced a
certificate showing Leubner had completed the necessary training for workplace
forklift operation and was certified as compliant with the Occupational Health and
Safety Administration (OSHA) General Industry Standards on November 10,
2015—over ten months after Sedlacek’s alleged injury. Both Sedlacek and
Prussman listed Leubner’s OSHA certification on their pretrial exhibit lists.
However, Sedlacek had not alleged a violation of OSHA standards in either version
of his complaint, and he did not propose jury instructions that used OSHA
standards to define the standard of care for Leubner or Prussman.
-2- #29054
[¶6.] The case was tried by a jury on June 3-7, 2019. During cross-
examination, Leubner admitted that he had previously received training on OSHA
standards for operating a forklift during his Job Corps training in 2001 and 2002.
However, Leubner acknowledged he was not certified when he started his
employment with Prussman in 2011 or in 2015 when Sedlacek claims he was
injured. Leubner testified that at the time of the alleged incident he was not aware
that OSHA regulations require recertification every three years.
[¶7.] Over objections from Prussman’s counsel, the circuit court allowed
Sedlacek’s counsel to question Leubner about specific OSHA standards. The court
also overruled Prussman’s objections when Sedlacek’s counsel asked Lyle
Prussman, president of Prussman Contracting, about OSHA standards during
cross-examination.
[¶8.] On June 6—the fourth day of trial—Sedlacek submitted a brief and, for
the first time, proposed two jury instructions regarding OSHA standards. The first
proposed jury instruction read as follows:
Evidence has been introduced in this case on the subject of the Occupational Safety and Health Administration, OSHA, standards for safe operation of a forklift. OSHA standards can be considered as evidence of the standard of care that Defendant was expected to meet.
[¶9.] The second proposed instruction contained references to 29 U.S.C. §
654 and 29 C.F.R. §1910.178, the latter of which details OSHA’s compliance
standards and requirements for forklift training. 1 Prussman objected to these
1. In the argot of the OSHA regulations, forklifts are described as “powered industrial trucks.” 29 C.F.R. § 1910.178.
-3- #29054
additional proposed instructions due to their late submission, further arguing that
OSHA standards were not relevant since Sedlacek had not alleged a violation of
OSHA standards in his negligence claim and had not presented expert testimony
that an OSHA violation had occurred.
[¶10.] The court agreed and denied Sedlacek’s proposed jury instructions,
citing his failure to allege an OSHA violation in either his original or amended
complaint, as well as his failure to raise a potential OSHA violation until trial.
With regard to the testimony already admitted that related to OSHA standards and
Prussman’s potential violations, the court instructed the jury not to consider the
testimony and referenced a preliminary instruction regarding the possibility that
the jury might inadvertently hear improper evidence during the course of the trial. 2
The court, however, did allow Leubner’s training certificate to remain as an exhibit
for the jury to consider.
[¶11.] Sedlacek moved for a mistrial based on the court’s order to strike
testimony regarding OSHA standards, arguing severe prejudice because “now the
Court is going to tell the jury . . . they should ignore it all which confuses and leads
the jury to believe that either we did something wrong or worse yet that OSHA
doesn’t apply . . . .” The circuit court denied the motion for a mistrial, determining
Sedlacek had failed to establish his prejudice claim.
[¶12.] The final jury instructions stated the principles of general negligence,
including legal cause. Prussman disputed causation and argued there was
2. The preliminary instruction stated generically that “[t]here may be times when you hear improper testimony, and I will tell you to disregard it because it is improper and must not be considered.”
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insufficient evidence that Sedlacek had, in fact, been injured. The instructions also
allowed the jury to consider Prussman’s affirmative defenses of contributory
negligence and assumption of the risk, which Sedlacek does not challenge on
appeal.
[¶13.] The jury returned a general verdict for Prussman, utilizing a verdict
form that simply stated:
We, the jury, duly empaneled to try the issues in this case, find in favor of:
_______ Plaintiff
_______ Defendant
Please place an “X” or “√” in one of the spaces provided.
[¶14.] Sedlacek presents three issues for our review, which we restate as
follows:
1. Whether the circuit court abused its discretion when it restricted evidence regarding Prussman’s alleged OSHA violations.
2. Whether the circuit court abused its discretion when it denied Sedlacek’s requested jury instructions regarding OSHA standards.
3. Whether the circuit court abused its discretion when it denied Sedlacek’s motion for a mistrial.
[¶15.] Prussman argues that we are unable to reach the merits of Sedlacek’s
claims because the general verdict prevents meaningful appellate review.
Analysis
[¶16.] A circuit court’s “evidentiary rulings will not be overturned absent a
clear abuse of discretion.” Weber v. Rains, 2019 S.D. 53, ¶ 22, 933 N.W.2d 471, 477
(quoting Veith v. O’Brien, 2007 S.D. 88, ¶ 25, 739 N.W.2d 15, 23). We review a
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circuit court’s evidentiary rulings by utilizing “a two-step process.” Ruschenberg v.
Eliason, 2014 S.D. 42, ¶ 23, 850 N.W.2d 810, 817 (quoting Supreme Pork, Inc. v.
Master Blaster, Inc., 2009 S.D. 20, ¶ 59, 764 N.W.2d 474, 491). First, we “determine
whether the trial court abused its discretion in making an evidentiary ruling.” Id.
(quoting Supreme Pork, 2009 S.D. 20, ¶ 59, 764 N.W.2d at 491). “[S]econd, we
determine ‘whether this error was a prejudicial error that in all probability affected
the jury’s conclusion.’” Id. (quoting Supreme Pork, 2009 S.D. 20, ¶ 59, 764 N.W.2d
at 491). As we stated in our Supreme Pork decision, “evidentiary rulings are only
reversible ‘when error is demonstrated and shown to be prejudicial error. Error is
prejudicial when, in all probability it produced some effect upon the final result and
affected the rights of the party assigning it.’” 2009 S.D. 20, ¶ 59, 764 N.W.2d at 491
(internal citation omitted).
[¶17.] A circuit court’s denial of proposed jury instructions is also reviewed
under an abuse of discretion standard. Vetter v. Cam Wal Elec. Coop., Inc., 2006
S.D. 21, ¶ 10, 711 N.W.2d 612, 615. In Vetter, we stated that:
no court has discretion to give incorrect, misleading, conflicting or confusing instructions [and] to do so constitutes reversible error if it is shown not only that the instructions were erroneous, but also that they were prejudicial. Erroneous instructions are prejudicial . . . when in all probability they produced some effect upon the verdict and were harmful to the substantial rights of a party.
Id.
[¶18.] So too, we review a circuit court’s denial of a motion for mistrial for
abuse of discretion. Behrens v. Wedmore, 2005 S.D. 79, ¶ 67, 698 N.W.2d 555, 580.
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“A denial of a mistrial will be affirmed ‘absent an abuse of discretion resulting in
clear prejudice.’” Id. (citation omitted).
[¶19.] All three issues presented by Sedlacek allow significant deference to
the circuit court and require a showing of prejudice to reverse the court’s rulings.
Establishing prejudice, even if the court abused its discretion, is difficult when a
general verdict form is used for a case tried upon multiple theories, because “‘this
Court cannot conclusively determine whether the jury based its verdict on any
number of defenses’ or other theories offered by the parties to a case.” State Farm
Mut. Auto. Ins. Co. v. Miranda, 2019 S.D. 47, ¶ 10, 932 N.W.2d 570, 573-74 (quoting
Reede Constr., Inc. v. S.D. Dep’t of Transp., 2017 S.D. 63, ¶ 14, 903 N.W.2d 740,
745); see also Knudson v. Hess, 1996 S.D. 137, ¶ 16, 556 N.W.2d 73, 77-78
(explaining the limitations of appellate review when a general verdict form is used).
Consequently, we have held that “if a general verdict is handed down and the jury
could have decided the case on two theories, one proper and one improper, the
reviewing court will assume that it was decided on the proper theory.” Miranda,
2019 S.D. 47, ¶ 10, 932 N.W.2d at 574 (quoting Reede, 2017 S.D. 63, ¶ 14, 903
N.W.2d at 745).
[¶20.] Here, Sedlacek urges us to determine the merits of his claims and
argues that he was prejudiced by the court’s rulings, which restricted his ability to
argue Prussman violated OSHA standards. However, even if this restriction was
outside the circuit court’s range of permissible choices, Sedlacek cannot establish
that the error produced the adverse verdict. This is particularly true here, where
Sedlacek does not challenge the balance of the court’s instructions on general
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negligence, legal cause, and the defenses of contributory negligence and assumption
of the risk.
[¶21.] Given these instructions and the evidence, the jury could have
determined Sedlacek simply did not prove the element of legal cause. Prussman
introduced evidence that, if believed, posited Sedlacek was not injured in the
incident on January 30, 2015. It is also possible that the jury determined Sedlacek
had acted unreasonably by not watching where he was going and, in so doing, was
contributorily negligent to a degree that was more than slight. See SDCL 20-9-2
(“[T]he fact that the plaintiff may have been guilty of contributory negligence does
not bar a recovery when the contributory negligence of the plaintiff was slight in
comparison with the negligence of the defendant . . .”). Finally, the court’s
instructions allowed the jury to determine that Sedlacek assumed the risk of being
injured under Prussman’s theory that he had significant experience working around
forklifts.
[¶22.] Without special interrogatories detailing the basis for the jury’s
determination of no liability, 3 we are unable to discern the reason for its verdict,
which could have rested on multiple permissible bases. Under the circumstances,
we cannot assess prejudice even if the court abused its discretion. We must
therefore affirm without reaching the merits of Sedlacek’s issues. See Miranda,
2019 S.D. 47, ¶ 15, 932 N.W.2d at 574 (affirming without reaching the merits when
a general verdict was handed down); Reede, 2017 S.D. 63, ¶ 14, 903 N.W.2d at 745
3. The court used the verdict form proposed by Sedlacek, and although it did not include special interrogatories on the theories of liability and Prussman’s defenses, it did contain special interrogatories relating to damages.
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(same); Lenards v. DeBoer, 2015 S.D. 49, ¶ 15, 865 N.W.2d 867, 871 (same); Thomas
v. Sully Cty., 2001 S.D. 73, ¶ 14, 629 N.W.2d 590, 594 (same). 4
[¶23.] GILBERTSON, Chief Justice, and KERN, JENSEN, and DEVANEY,
Justices, concur.
4. As these opinions illustrate, our decision here is not an outlier. Rather, it follows a clear and consistent body of decisional law that recognizes the practical limitations of assessing the prejudice of an asserted error where we simply cannot determine the reason for a jury’s verdict among several bases, some permissible and some perhaps not.
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