Weiland v. Bumann

2025 S.D. 9

• Court: South Dakota Supreme Court
• Decided: February 19, 2025
• Docket: 30309, 30311
• Status: Published

Opinion

#30309, #30311-a-MES 2025 S.D. 9

IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA

**** TODD WEILAND, Plaintiff and Appellant,

v.

PATRICK BUMANN, Defendant and Appellee.

****

APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA

THE HONORABLE SANDRA H. HANSON Judge

MICHAEL D. BORNITZ ABIGALE M. FARLEY of Cutler Law Firm, LLP Sioux Falls, South Dakota Attorneys for plaintiff and appellant.

MELANIE L. CARPENTER JAKE R. SCHNEIDER of Woods, Fuller, Shultz & Smith, P.C. Sioux Falls, South Dakota Attorneys for defendant and appellee.

ARGUED MARCH 19, 2024 OPINION FILED 02/19/25 #30309, #30311

SALTER, Justice

[¶1.] Todd Weiland commenced this personal injury action against Patrick

Bumann seeking damages for injuries sustained in a motor vehicle accident that

occurred while Bumann was on duty as a trooper with the South Dakota Highway

Patrol (SDHP). The circuit court denied Weiland’s motion for partial summary

judgment on the issues of negligence, contributory negligence, causation, and

failure to mitigate damages, and the case was tried to a jury. The court also denied

Bumann’s pretrial request to apply a recklessness standard, rather than ordinary

negligence.

[¶2.] At trial, Weiland sought to admit the Minnehaha County Sheriff’s

Department accident report, materials from the SDHP’s investigation, internal

SDHP policies, and representations allegedly made by Bumann’s insurance

adjuster. The court excluded the accident report and evidence of the insurance

adjuster’s representations and made certain redactions to the SDHP investigation

materials. The court also precluded Weiland from making a per diem argument to

the jury regarding non-economic damages.

[¶3.] The jury found Bumann was negligent, but also concluded Weiland

was contributorily negligent, although not more than slight. The jury awarded

Weiland a total of $18,661.50 in damages.

[¶4.] Weiland appeals, challenging the circuit court’s adverse rulings. By

notice of review, Bumann challenges the standard of care the circuit court applied

and the denial of his motion for judgment as a matter of law on certain future

damages. We affirm.

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Factual and Procedural Background

[¶5.] Weiland and Bumann were involved in a car accident on November 10,

2017, south of Humboldt in Minnehaha County. Weiland works as a chiropractor at

the Ortman Chiropractic Clinic in Canistota and was traveling east on Highway 42

toward his home in Sioux Falls. At that same time and location on Highway 42,

Bumann was driving west, performing his duties as a SDHP trooper in his issued

patrol vehicle. Bumann was in a no-passing zone and was driving behind two large

vehicles pulling trailers. The speed limit at that location on Highway 42 is 65 miles

per hour.

[¶6.] Bumann observed an eastbound vehicle with expired license plates

traveling in excess of the posted speed limit. He activated the emergency lights on

his patrol vehicle and prepared to make a U-turn to pursue the eastbound vehicle

and initiate a traffic stop. Because his view was obstructed by the two vehicles in

front of him, Bumann veered onto the north shoulder of the highway, looked to see

if any oncoming vehicles were approaching, and began making a U-turn.

[¶7.] Approximately halfway through the turn, Bumann noticed Weiland’s

vehicle coming toward him in the eastbound lane. By Bumann’s estimation,

Weiland’s vehicle was 150 feet away. Bumann attempted to accelerate forward into

the south ditch to avoid impact, but there was not enough time to avert the collision

entirely. The front right corner of Weiland’s vehicle collided with the right rear end

of Bumann’s vehicle. As related by Bumann, the collision caused him to be “pushed

forward. . . . Approximately a foot.” The vehicles did not flip or spin, and no airbags

deployed.

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[¶8.] After Weiland pulled to the side of the road, Bumann approached

Weiland’s vehicle and spoke with him. Both men stated they were uninjured, and

neither called an ambulance.

[¶9.] Bumann reported the accident and Minnehaha County Deputy Sheriff

Tyrone Albers arrived at the scene and completed an accident report. However,

Deputy Albers did not conduct an accident reconstruction, and his report was based

on each parties’ explanation of the event. Deputy Albers’s report identified

Bumann’s failure to yield as the only contributing circumstance and stated that

Weiland was driving the speed limit. The narrative in Deputy Albers’s report

stated, “[a] semi and trailer obstructed [Bumann’s] view to the west and he did not

see oncoming vehicle 1 [Weiland].”

[¶10.] The SDHP investigated the accident to determine whether to discipline

Bumann. Sergeant Steven Schade, Bumann’s immediate supervisor, determined

that Bumann violated SDHP safety policies and that the accident was preventable.

Sergeant Schade recommended that Bumann receive a reprimand.

[¶11.] Weiland brought suit against Bumann 1 in March 2020, asserting six

claims: 1) negligence, 2) negligence per se – careless driving (SDCL 32-24-8), 3)

negligence per se – improper U-turn (SDCL 32-26-25), 4) negligence per se – illegal

lane change (SDCL 32-26-6), 5) negligence per se – unsafe turning (SDCL 32-26-22),

and 6) negligence per se – reckless driving (SDCL 32-24-1). Bumann denied

1. Weiland also named the SDHP, but the circuit court granted the SDHP’s motion for summary judgment on the basis of sovereign immunity. That decision is not before us in this appeal. Weiland later amended his complaint to assert claims solely against Bumann.

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liability and causation, and alleged failure to mitigate damages and contributory

negligence as affirmative defenses.

[¶12.] Weiland moved for partial summary judgment on the issues of

negligence and causation and on Bumann’s affirmative defenses of contributory

negligence and failure to mitigate damages. Following a hearing, the circuit court

denied the motion, concluding that “fact issues exist which preclude the grant of

partial summary judgment on the issues of negligence, causation, contributory

negligence, and failure to mitigate[.]”

[¶13.] Prior to trial, Weiland moved to admit testimony from Blake Dykstra

who was working as a claims adjuster on behalf of Bumann. Dykstra allegedly told

Weiland he could not submit bills from Ortman Clinic because Weiland worked

there. Weiland claims he complied and that this, in turn, affected how the records

of Weiland’s treatments were kept. Weiland also sought admission of the SDHP’s

“[p]olicy manual and/or [Bumann’s] training materials” and Sergeant Schade’s

report. Bumann, however, sought to exclude Sergeant Schade’s report and the

SDHP policies it referenced. Bumann also moved to preclude Weiland from making

a per diem argument for non-economic damages.

[¶14.] The circuit court denied Weiland’s request to call Dykstra, but

instructed the parties they were “prohibited from criticizing the recordkeeping

practices of the Ortman Clinic[.]” The court also granted Bumann’s request to

preclude Weiland from making a per diem argument.

[¶15.] On the topic of the SDHP report, the circuit court allowed evidence of

certain SDHP policies and procedures “to the extent such information does not seek

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to usurp the functions of the court or the jury and is otherwise admissible in

keeping with the rules of evidence.” The court also allowed Sergeant Schade’s

SDHP report but ordered certain redactions to remove determinations that Bumann

violated SDHP policy, including the specific conclusion: “This would be a violation of

South Dakota Highway Patrol Policy which states [a] . . . vehicle shall not be driven

in a careless manner at any time. If Trooper Bumann would have waited and been

able to get a better view of oncoming traffic he could have avoided the collision.”

[¶16.] Prior to trial, Bumann argued that to establish liability, Weiland had

to establish Bumann was reckless, relying on SDCL 32-31-1, -2, and -5, which

address the application of traffic regulations to drivers of authorized emergency

vehicles. Weiland opposed the request, however, and the circuit court concluded

that the proper standard of care was ordinary negligence.

Trial evidence regarding liability

[¶17.] At trial, Bumann testified about how the accident developed, and the

jury also watched the SDHP vehicle’s dash camera video that included footage of

the moments before, during, and immediately after the accident. Bumann admitted

that he could have prevented the accident if he had been more cautious and had

waited longer to check for oncoming traffic. He also acknowledged that he told his

supervisor that it was “100 percent my bad” and that he received a reprimand as a

result of the accident.

[¶18.] Weiland testified about how the accident developed from his

perspective. He said he was driving home from work when “all of a sudden a car

was right in front of me, a police car was right in front of me. Like, it just dropped

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out of nowhere. Slammed on the brakes. (Claps hands.) Boom.” He stated, “There

was no time to think or react. All I did was brace myself, slam on the brakes, and it

happened almost immediately.” Weiland acknowledged he was traveling around 68

miles per hour or “[m]aybe a touch more. I would normally drive at the speed limit

or just - - just near it.”

[¶19.] As the responding law enforcement officer, Deputy Albers also testified

at trial. Summarizing the accident, he stated, “because of the tractor trailer that

was in front of him, [Bumann] didn’t see the oncoming vehicle that was driven by

Mr. Weiland. And he pulled out in front of him to go eastbound.” Deputy Albers

also indicated that Bumann never suggested Weiland was at fault.

[¶20.] Following Deputy Albers’s testimony, Weiland made an offer of proof

for the previously excluded accident report and argued that the report would satisfy

the business records exception to the rule against hearsay. The court again

concluded the accident report was inadmissible, explaining, “[it] does not appear

that there has been adequate foundation laid for the same to qualify under Rule

803(6) for regularly conducted business activity records or public records under

[subsection] (8).”

[¶21.] Sergeant Schade testified that Bumann suggested he was at fault “a

hundred percent.” Sergeant Schade confirmed that Bumann never blamed Weiland

for the accident. In addition, Sergeant Schade explained how SDHP troopers

accumulate safe driving miles while on duty and that Bumann acknowledged he

was likely going to lose his safe driving miles. Sergeant Schade testified that as a

result of the accident, he recommended a reprimand for Bumann.

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[¶22.] Bumann’s expert witness, Dr. Jerry Ogden, a civil and mechanical

engineer, completed an engineering analysis of the accident, which included an

examination of information from the event data recorder (EDR) located in Weiland’s

car. Dr. Ogden found that roughly five seconds prior to the accident, Weiland was

driving 69 miles per hour in a 65 mile-per-hour zone. He explained that the damage

on the front right corner portion of Weiland’s vehicle was approximately 15 inches

in length. Dr. Ogden also described the changes in the cars’ velocities, the force felt

by each respective car, and the effect on the person in each vehicle. In short, Dr.

Ogden characterized the accident in unremarkable terms as “a scraping incident.”

In his opinion, the accident involved a low-impact collision that would have felt like

“bumper cars” or the resulting impact “[i]f you pulled into your garage and hit the

right front corner of your car pulling in at 7 miles per hour[.]”

Trial evidence regarding damages

[¶23.] Weiland testified that he started to develop pain within an hour of the

accident. He said he started chiropractic and massage therapy appointments soon

after the accident and later obtained treatment from medical doctors. Weiland

testified about the types of modalities and equipment he used to reduce his pain and

described how the injury affected his work and personal life, acknowledging that he

tried to continue with regular activities and hobbies even though they may have

been painful.

[¶24.] Weiland received chiropractic treatment from a chiropractic partner,

who testified that following the accident, Weiland had “[c]onsistent muscle

tightness, tone, taut fibers, hypertonicity, [and] guardedness.” However, Weiland’s

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partner also noted that Weiland participated in strenuous activities after the

accident, including carrying buckets of sand, sledding, and shoveling, and

participated in various sporting activities. Weiland also treated with another

chiropractor who recommended chiropractic and massage treatment to address

Weiland’s “[n]eck pain, headaches, back pain, [and] mid back pain[.]”

[¶25.] After massage and chiropractic treatments were unsuccessful, Weiland

sought medical treatment from Christopher Janssen, M.D., who specializes in

physiatry. Weiland reported that his symptoms became worse with “overhead

activity, golfing, raising his arms over his head, and really almost any kind of

prolonged activity.” Dr. Janssen diagnosed Weiland with “whiplash associated

disorder, cervical facet pain, and cervical myofascial pain.” Although Weiland had

“[r]elatively mild degenerative change of the cervical spine,” predating the accident,

Dr. Janssen opined this was not the cause of Weiland’s pain.

[¶26.] Initially, Dr. Janssen “recommended some physical therapy to try to

strengthen up and balance the muscles around the spine.” Dr. Janssen testified the

physical therapy “didn’t give [Weiland] any long-standing relief,” and he, therefore,

administered trigger point injections to treat Weiland.

[¶27.] When those injections failed to help Weiland, Dr. Janssen referred him

to Timothy Metz, M.D., who performed medial branch blocks and radiofrequency

ablations on Weiland. 2 Dr. Janssen testified that the radiofrequency ablations were

2. Dr. Janssen explained that a medial block involves injecting numbing medication next to a nerve which “will deaden the nerve for a period of time.” The process allows doctors to identify the pain-causing nerve and, in some instances, burn it in an ablation procedure.

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effective in treating Weiland’s pain and that Weiland could continue to undergo

these procedures “[a]s long as they continue to work.”

[¶28.] On cross-examination, Bumann questioned Dr. Janssen about

Weiland’s compliance with his physical therapy program. Dr. Janssen testified that

Weiland—while still working through his physical therapy regimen—helped clean

up after a tornado, helped lay flooring at his parents’ house, ran a chainsaw, and

lifted logs and branches. Dr. Janssen acknowledged entries in Weiland’s physical

therapy records, in which he stated that his pain was significantly reduced after

completing stretches and exercises, but Weiland reportedly gave himself an F grade

for follow-through on his home exercises.

[¶29.] Bumann called Walter Carlson, M.D., as an expert witness. Dr.

Carlson is a retired orthopedic surgeon who performed an independent medical

examination (IME) of Weiland. In Dr. Carlson’s opinion, Weiland suffered a

sprain/strain injury from the accident that would have healed in “a six- to 12-week

time frame with proper treatment[.]” Dr. Carlson also testified that “Weiland’s

current neck complaints are more related to his arthritis in his neck[.]”

[¶30.] Before the case was submitted to the jury, one of the jurors asked the

bailiff who would pay for an award of damages. The bailiff informed the juror that

he could not answer and that all the information the jury needed to make its

decision would be provided later on in the proceedings. Due to the juror’s question,

Weiland later sought the use of South Dakota Pattern Jury Instruction 10-20-60,

which instructs the jury not to consider whether the parties have insurance. The

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circuit court denied the instruction after finding that the issue of insurance had not

been injected into the trial.

[¶31.] In his rebuttal, Weiland called a third treating chiropractor who

testified that “even routine activities” were affected by Weiland’s pain from the

accident. Weiland’s stepson also testified in rebuttal and stated that Weiland did

not have back pain before the accident and that following the accident, he

“definitely had to limit his activities.”

[¶32.] At the close of evidence, Weiland moved for judgment as a matter of

law 3 on the issues of negligence, contributory negligence, and failure to mitigate,

and also renewed his request to allow a per diem argument for non-economic

damages. The circuit court denied both. Bumann also sought a directed verdict on

future damages and on liability, renewing his argument that recklessness and not

ordinary negligence should apply. The court also denied both of Bumann’s motions,

and the case was submitted to the jury.

[¶33.] The jury returned a verdict for Weiland. In its special verdict form,

the jury found Bumann was negligent and that his negligence was a legal cause of

Weiland’s injuries. The jury also found Weiland was contributorily negligent, but

less than slight. For its assessment of damages, the jury awarded Weiland $17,500

in non-economic damages and $1,161.50 in past medical expenses, but nothing for

3. The parties use the terms directed verdict and judgment as a matter of law interchangeably, though the latter is the correct contemporary term used in our rules of civil procedure. See Magner v. Brinkman, 2016 S.D. 50, ¶ 11 n.5, 883 N.W.2d 74, 80 n.5 (“In 2006, the phrases motion for directed verdict and motion for judgment notwithstanding the verdict were changed to motion for judgment as a matter of law and renewed motion for judgment as a matter of law, respectively.”).

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his future medical expenses claim. Taking recoverable costs into account, the

circuit court entered judgment for Weiland in the amount of $21,122.25.

[¶34.] Weiland appeals, raising several issues, which we restate as follows:

1. Whether the circuit court erred when it denied Weiland’s motions for summary judgment and judgment as a matter of law regarding negligence, contributory negligence, and failure to mitigate.

2. Whether the circuit court abused its discretion when it excluded portions of Deputy Albers’s accident report, the SDHP’s investigation, and alleged representations by the claims adjuster.

3. Whether the circuit court abused its discretion when it refused Weiland’s request to instruct the jury on the issue of liability insurance. 4

[¶35.] Bumann raises two issues by notice of review:

1. Whether the circuit court erred when it applied an ordinary negligence standard to Bumann.

2. Whether the circuit court erred when it denied Bumann’s motion for judgment as a matter of law on certain future damages.

In light of our disposition of Weiland’s issues, however, we do not reach the issues

raised by Bumann.

4. For the issues relating to the evidentiary rulings, the proposed jury instruction, and the per diem argument, Weiland also claims that “[t]he circuit court further erred” when it did not grant his motion for new trial. However, Weiland has oriented his arguments solely to the legal standards for each individual type of error and has not included a separate new trial argument under SDCL 15-6-59(a).

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Analysis

Summary judgment and judgment as a matter of law

[¶36.] “We review a court’s denial of a motion for summary judgment under

the de novo standard of review.” DT-Trak Consulting, Inc. v. Kolda, 2022 S.D. 50,

¶ 11, 979 N.W.2d 304, 308 (citation omitted). “Summary judgment is appropriate ‘if

the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of

law.’” Barr v. Cole, 2023 S.D. 60, ¶ 18, 998 N.W.2d 343, 349 (citation omitted).

Further, “[t]he evidence must be viewed most favorably to the nonmoving party and

reasonable doubts should be resolved against the moving party.” Id. (citation

omitted).

[¶37.] We also apply the de novo standard of review to the circuit court’s

ruling on motions for judgment as a matter of law under SDCL 15-6-50, giving no

deference to the circuit court’s decision. Center of Life Church v. Nelson, 2018 S.D.

42, ¶ 18, 913 N.W.2d 105, 110–11 (citing Magner v. Brinkman, 2016 S.D. 50, ¶¶ 11–

13, 883 N.W.2d 74, 80–81) (describing the departure from abuse of discretion

standard of review to de novo review of motions for judgment as a matter of law).

“Then, ‘[w]ithout weighing the evidence, the court must . . . decide if there is

evidence that supports [the] verdict.’” Id. (citation omitted). “If sufficient evidence

exists so that reasonable minds could differ, judgment as a matter of law is not

appropriate.” Id. (citation omitted). As with our review of summary judgment

decisions, “we apply the same standard as the circuit court: we view the evidence in

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the light most favorable to the verdict or to the nonmoving party.” Id. (citation

omitted); Acuity v. Terra-Tek, LLC, 2024 S.D. 49, ¶ 13, 11 N.W.3d 96, 100.

[¶38.] Weiland challenges the circuit court’s denial of his motions for

summary judgment and judgment as a matter of law on the issues of negligence,

contributory negligence, and failure to mitigate damages. We address each in turn.

Negligence

[¶39.] Before addressing the merits of Weiland’s argument that the circuit

court should have determined Bumann’s negligence as a matter of law, we must

first consider whether a justiciable controversy remains in light of the jury’s

ultimate verdict finding that Bumann was, in fact, negligent.

[¶40.] “A case is moot when the issue presented is academic or nonexistent

and when ‘judgment, if rendered, will have no practical legal effect upon the

existing controversy.’” Hewitt v. Felderman, 2013 S.D. 91, ¶ 11, 841 N.W.2d 258,

262. Accordingly, “an appeal will be dismissed as moot where . . . the actual

controversy ceases and it becomes impossible for the appellate court to grant

effectual relief.” Id. (omission in original).

[¶41.] On the mootness question presented in this case, our decision in Hewitt

is instructive, if not controlling:

[The plaintiff] urges this Court to find there was no legally sufficient evidentiary basis for a reasonable jury to find for [the defendant] on the issue of negligence. The controversy [the plaintiff] puts before this Court—whether [the defendant] acted negligently—was already resolved by the jury in favor of [the plaintiff]. It becomes a purely academic exercise for this Court to determine whether the question of negligence should have been submitted to the jury. Because this Court has no “effectual relief” to grant, the issue is moot.

Id. ¶ 12. -13- #30309, #30311

[¶42.] The same analysis applies here. Weiland’s challenge to the circuit

court’s decision to deny his motions for summary judgment and judgment as a

matter of law on the issue of Bumann’s negligence no longer presents a live

controversy. Even if Weiland could prevail on his claim that the circuit court

should have determined Bumann’s negligence as a matter of law, which we do not

hold, we cannot grant effectual relief because the jury separately resolved the

negligence question in Weiland’s favor. 5 This issue is, therefore, moot.

Contributory negligence

[¶43.] “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.” Klutman v. Sioux Falls Storm,

2009 S.D. 55, ¶ 24, 769 N.W.2d 440, 450 (citation omitted). “There must be

competent evidence of contributory negligence before the matter may be submitted

to the jury.” Id. (citation omitted); see also Johnson v. Armfield, 2003 S.D. 134,

¶ 13, 672 N.W.2d 478, 482 (quoting Lockwood v. Schreimann, 933 S.W.2d 856, 859

(Mo. Ct. App. 1996) (“Stating ‘[t]he causal connection between excessive speed and

5. Weiland contends that “[t]he prejudice resulting from the error in sending the issue of Bumann’s negligence persists despite the jury’s verdict.” Citing Davis v. Knippling, 1998 S.D. 31, ¶ 14, 576 N.W.2d 525, 529, Weiland argues that “[p]rejudice resulting from any error may be gleaned from looking at the entire record, including factoring in all errors.” However, Davis is not a mootness case, and the two erroneous instructions that were at issue had a discernable impact on the plaintiff’s recovery. Id. That is not the case here, and, though Weiland claims that the instructions on negligence and contributory negligence “worked in tandem to result” to reduce his recovery, it is not clear how.

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the collision must be established by the evidence and cannot be left to mere

speculation and conjecture.’”)) (alteration in original).

[¶44.] However, we have long recognized that “questions of negligence,

contributory negligence and assumption of the risk are for the jury in all but the

rarest cases so long as there is evidence to support the issues. It is only when

reasonable [people] can draw but one conclusion from facts and inferences that they

become a matter of law and this rarely occurs.” Stone v. Von Eye Farms, 2007 S.D.

115, ¶ 6, 741 N.W.2d 767, 770 (emphasis added) (quoting Pierce v. City of Belle

Fourche, 2001 S.D. 41, ¶ 22, 624 N.W.2d 353, 357).

[¶45.] Here, we conclude there is sufficient evidence upon which the jury

could find that Weiland was contributorily negligent, and the circuit court did not

err when it denied his motions for partial summary judgment and judgment as a

matter of law. Viewing the evidence in the light most favorable to the verdict, the

jury could have reasonably found that Weiland’s own actions contributed to the

accident.

[¶46.] The width of the impact to the right front corner of Weiland’s vehicle

was narrow—just 15 inches—and Weiland himself testified that he “maybe veered

to the right because he was coming from my left.” This testimony is supported by

other evidence that indicates the collision occurred on the right shoulder of the

highway. In other words, the jury heard evidence that Bumann nearly averted the

collision entirely.

[¶47.] In addition, the EDR in Weiland’s automobile showed he was traveling

at 69 miles per hour five seconds before the collision. The speed limit in the area of

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the crash is 65 miles per hour, and Weiland admitted he was speeding when he

estimated he was driving 68 miles per hour. Though he was not asked to opine on

causation, Dr. Ogden testified about the rate of downward acceleration and said the

speed of Weiland’s vehicle fell significantly after Weiland applied the brakes.

[¶48.] Generally, “[e]vidence that a party was exceeding the posted speed

limit is sufficient to send the issue of contributory negligence to the jury.” Hoffman

v. Oakley, 647 S.E.2d 117, 122 (N.C. Ct. App. 2007). Weiland contends, however,

that the circuit court erroneously submitted the issue of the contributory negligence

to the jury “on the sole basis” that he was speeding, citing Johnson v. Armfield. In

Johnson, we reversed a verdict for a defendant who admitted his own negligence

but asserted the plaintiff had been contributorily negligent based on the defendant’s

speculative assertion that the plaintiff “must have been speeding or he wouldn’t

have pulled out onto the street in the first place[.]” 2003 S.D. 134, ¶¶ 11–13, 672

N.W.2d at 481–82.

[¶49.] In our view, Weiland’s reliance upon the result in Johnson is

misplaced because it is premised upon a parochial view of the evidence adduced at

trial. Unlike the unsubstantiated guess that the plaintiff “must have been

speeding” in Johnson, the evidence here established that Weiland was, in fact,

speeding just before the collision which, a fair view of the evidence suggests, almost

did not occur. Id. ¶ 12.

[¶50.] In his reply brief, Weiland suggests that expert testimony was

necessary to prove the causation element of Bumann’s contributory negligence,

claiming the question does not fall within the common experience and capability of

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a lay person. Though Weiland argued there was “no competent evidence” of

contributory negligence in his opening brief, he did not raise the claim that expert

testimony is required initially. For this reason, we question whether this argument

is properly before us. See Ellingson v. Ammann, 2013 S.D. 32, ¶ 10, 830 N.W.2d 99,

102 (quoting Agee v. Agee, 1996 S.D. 85, ¶ 21 n.4, 551 N.W.2d 804, 807 n.4) (“A

party may not raise an issue for the first time on appeal, especially in a reply brief

when the other party does not have the opportunity to answer.”).

[¶51.] But even if Weiland’s expert opinion argument were before us, we have

never held that expert testimony is categorically required to prove causation for

contributory negligence based on excessive speed, and we decline to do so here. We

appreciate the difficulty in determining the precise point where the laws of physics

intersect with “the common experience and capability of a lay person[,]” Matter of

Drainage Permit 11-81, 2019 S.D. 3, ¶ 42, 922 N.W.2d 263, 275, and we

acknowledge that the question presented here is a close one. But given the

particular evidence adduced at trial, we conclude that the causation issue relating

to the contributory negligence claim was within the common experience and

capability of a lay person, and there was sufficient evidence to support the jury’s

verdict finding contributory negligence. 6

6. Weiland also argues that “[a] new trial on damages is required” because the jury was instructed to reduce the damages in proportion to Weiland’s negligence. Leaving aside the incongruity of Weiland identifying error with the failure to reduce a damages verdict he already views as insufficient, we believe the argument is not persuasive because it appears to presume that the jury did not reduce the damages. But that premise is not safe, and there is no reason to believe the jury did not reduce the damages. The special verdict form, submitted without objection, simply did not include a line that (continued . . .) -17- #30309, #30311

Failure to mitigate damages

[¶52.] As a general principle of damages, “a plaintiff must do all that is

reasonable to minimize damages after a tort or breach of contract has occurred[.]”

Wasland v. Porter Auto & Marine, Inc., 1999 S.D. 134, ¶ 12, 600 N.W.2d 904, 907

(quoting O’Brien v. Isaacs, 116 N.W.2d 246, 249 (Wis. 1962)).

The law imposes upon a party injured from another’s breach of contract or tort the active duty of making reasonable exertion to render the injury as light as possible. If, by his negligence or willfulness, he allows the damages to be unnecessarily enhanced, the increased loss, that which was avoidable by the performance of his duty, falls upon him.

Ducheneaux v. Miller, 488 N.W.2d 902, 917 (S.D. 1992). “The burden of proving

that damages would have been lessened by the exercise of reasonable diligence on

the part of the claimant is on the party that caused the damages.” Mash v. Cutler,

488 N.W.2d 642, 648 (S.D. 1992).

[¶53.] Bumann asserted that Weiland failed to mitigate his damages, arguing

that Weiland did not properly follow through with some treatments and that he had

participated in some activities that would have exacerbated any alleged injury.

Weiland sought summary judgment and judgment as a matter of law on these

claims, and the circuit court denied these motions. On appeal, Weiland argues

________________________ (. . . continued) would have shown the amount of a reduction. The instruction was otherwise correct and consistent with SDCL 20-9-2’s requirement that “the damages shall be reduced in proportion to the amount of plaintiff’s contributory negligence.” See State v. Ralios, 2010 S.D. 43, ¶ 47, 783 N.W.2d 647, 660 (noting the general rule that presumes that juries follow a trial court’s instructions).

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“Bumann failed to present the requisite competent evidence Dr. Weiland’s conduct

was unreasonable and the proximate cause of further injury.”

[¶54.] Our review of the record leads us to conclude there was sufficient

evidence to submit this issue to the jury. The jury heard evidence that following the

accident, Weiland participated in various activities, some of which could be viewed

as physically strenuous. For instance, following a tornado in 2019, Weiland

completed yard cleanup where he “was running a chainsaw and lifting logs and

branches[.]” Further, the jury heard testimony that since the accident, Weiland

moved furniture and participated in recreational axe throwing.

[¶55.] And by his own admission, Weiland’s physical therapy follow-through

was poor. As part of his prescribed physical therapy, Weiland was instructed to

complete home exercises, but his medical records stated that he graded his effort as

an “F follow through per home exercise due to work schedule.” Additional

corresponding evidence suggested that Weiland felt better when he did complete

certain stretches, exercises, and swimming.

[¶56.] Under the circumstances, we cannot accept Weiland’s argument that

the circuit court erred when it denied his motions for summary judgment and

judgment as a matter of law on Bumann’s failure to mitigate damages defense. His

specific claim that “Bumann failed to present the requisite competent evidence Dr.

Weiland’s conduct was unreasonable and the proximate cause of further injury” is

contrary to the evidence in the record.

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Evidentiary issues

[¶57.] “A circuit court’s ‘evidentiary rulings will not be overturned absent a

clear abuse of discretion.’” Sedlacek v. Prussman Contracting, Inc., 2020 S.D. 18,

¶ 16, 941 N.W.2d 819, 822 (citation omitted). “An abuse of discretion ‘is a

fundamental error of judgment, a choice outside the range of permissible choices, a

decision, which, on full consideration, is arbitrary or unreasonable.’” Weber v.

Weber, 2023 S.D. 64, ¶ 15, 999 N.W.2d 230, 234 (citation omitted).

[¶58.] “We review a circuit court’s evidentiary rulings by utilizing a ‘two-step

process.’” Sedlacek, 2020 S.D. 18, ¶ 16, 941 N.W.2d at 822 (citation omitted).

“First, we ‘determine whether the trial court abused its discretion in making an

evidentiary ruling.’” Id. (citation omitted). “[S]econd, we determine, ‘whether this

error was a prejudicial error that in all probability affected the jury’s conclusion.’”

Id. (alteration in original) (citation omitted). We have clarified that “the ‘all

probability’ phrase should be understood as ‘a reasonable probability that, but for

[the error], the result of the proceeding would have been different.’” State v. Carter,

2023 S.D. 67, ¶ 26, 1 N.W.3d 674, 686 (alteration in original) (citation omitted).

Importantly, “evidentiary rulings are only reversible ‘when error is demonstrated

and shown to be prejudicial error.’” Sedlacek, 2020 S.D. 18, ¶ 16, 941 N.W.2d at

822 (citation omitted).

[¶59.] Weiland argues the circuit court erred in denying his motion for new

trial based on certain evidentiary rulings, specifically, the exclusion of Deputy

Albers’s accident report, the exclusion of portions of SDHP’s investigation, and the

exclusion of alleged representations made by Bumann’s insurance adjuster.

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Deputy Albers’s accident report

[¶60.] Even if Weiland prevailed on his claim that Deputy Albers’s accident

report was admissible as a business record and a non-hearsay admission, the record

establishes the absence of any prejudice. Although the report itself was excluded,

Deputy Albers testified about the content of his report at trial, including the portion

of the report that indicated that Bumann’s operation of his patrol car contributed to

the collision. Deputy Albers also confirmed that the report did not identify

Weiland’s operation of his vehicle as a contributing cause for the collision. The

report itself would have only provided the same evidence and its exclusion was not

prejudicial. See Parker v. Arkansas Dep’t of Correction, 888 F.3d 396, 398–99 (8th

Cir. 2018) (concluding the court’s exclusion of an exhibit was not prejudicial, noting,

“[w]hile the district court ultimately decided not to admit the internal investigation

report as a documentary exhibit, it permitted [plaintiff] to elicit the content of the

report while questioning [a witness].”); 14 Cyc. of Federal Proc. § 68:56 (3d ed.)

(“Generally speaking, there is no prejudicial error where the testimony is restricted

to facts otherwise fully proved.”).

SDHP investigation

[¶61.] The circuit court ordered redactions for the portions of the SDHP

investigation report that discussed Bumann’s actions and findings relating to

violations of SDHP policy. Further, the court limited the use of the materials,

admitting the SDHP policies to the extent that they would not “usurp the functions

of the court or the jury” with regard to determining fault. Weiland claims the

SDHP report contained conclusions by Bumann’s supervisor regarding who caused

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the accident and whether the accident was preventable. He argues the court’s

redactions and limitations of this evidence was an abuse of discretion. We disagree.

[¶62.] As the circuit court concluded, the SDHP supervisor’s opinion could

have “confuse[d] the jury with fault standards different from negligence

determinations appropriate to the trial in this case.” The redacted language at the

center of Weiland’s argument was Sergeant Schade’s opinions that the accident was

preventable. However, “preventable” is not the same thing as solely responsible,

and surely does not automatically prove negligence. At some level of abstraction, all

accidents are preventable. As we have said, just because an accident occurs does

not mean one of the involved parties was negligent. See Carpenter v. City of Belle

Fourche, 2000 S.D. 55, ¶ 16, 609 N.W.2d 751, 759 (“the mere occurrence of an

accident . . . will not of itself establish negligence against the unfavored driver”).

[¶63.] The circuit court was concerned that the SDHP’s conclusions about the

preventable nature of the accident or Bumann’s violation of an SDHP policy could

confuse the jury on the applicable standard of care or usurp the function of the jury

as the finder of liability. These were legitimate concerns, and the court acted within

its discretion when it ordered the SDHP report redacted.

[¶64.] Weiland’s argument that our decision in Morrison v. Min. Palace Ltd.

P’ship, 1999 S.D. 145, 603 N.W.2d 193, supports his view that an employer’s

internal policies and procedures can be considered by the jury as evidence of

negligence is unavailing. Simply put, we did not consider the admissibility of

evidence relating to the employer’s policies in Morrison, and we made no holding

that would support Weiland’s evidentiary argument. Instead, we rejected the

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argument that an employer’s policy definitively established “what the law requires

of a reasonable person under the circumstances.” 1999 S.D. 145, ¶ 12 n.4, 603

N.W.2d at 196 n.4 (quoting 57A Am. Jur. 2d. Negligence § 170 (2024)). Though we

acknowledged that evidence of the employer’s policy of inspecting its premises for

snow and ice accumulation could establish a breach of the common law

reasonableness standard, we did not hold that an employer’s policy must be

considered. Id.

[¶65.] In any event, Weiland has not established prejudice from those

evidentiary rulings. Sergeant Schade and Bumann both testified at trial about the

accident, the SDHP investigation, and the SDHP policy. During his testimony,

Bumann admitted that he could have been more cautious and waited longer to see if

there was any oncoming traffic before making the turn. Further, Sergeant Schade

testified that he recommended Bumann be reprimanded. While the court redacted

portions of the SDHP material and Sergeant Schade’s report, most, if not all of the

information in the materials and report, whether redacted or otherwise, was still

presented to the jury through witness testimony. 7

Dykstra’s alleged representations

[¶66.] Dykstra is a claims adjuster for Claims Associates and worked on

Weiland’s claim against Bumann. Weiland alleges that Dykstra told him he could

not be compensated for chiropractic bills from the Ortman Clinic, presumably

7. To the extent that the excluded SDHP investigation evidence and Deputy Albers’s accident report were directed at establishing Bumann’s negligence, the jury’s finding that he was negligent further diminishes the impact of the excluded evidence.

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because Weiland worked there. These alleged representations made by Dykstra

also supposedly affected how the treatments were documented—i.e., because he

could not collect for the Ortman bills, Weiland testified that he merely kept a diary

of his treatment and symptoms and not a proper medical record.

[¶67.] Bumann argues “that Weiland failed to preserve this issue for appeal”

because “Dykstra was not called as a witness at trial, and Weiland failed to make

an offer of proof regarding his testimony.” It is well-established that “the proponent

of excluded evidence must make the substance of the evidence known to the trial

court by making an offer of the excluded evidence at trial or prior to trial by an offer

of proof.” Wilcox v. Vermeulen, 2010 S.D. 29, ¶ 7, 781 N.W.2d 464, 467 (citation

[¶68.] Though perhaps semantic, we note that Weiland preserved this issue

for appeal by litigating the issue before the circuit court. However, the state of the

record prevents us from conducting a meaningful review because we simply do not

know how Dykstra would testify. Dykstra was not deposed, he did not submit an

affidavit, and he did not testify before the circuit court at any point. The idea

underlying Weiland’s argument is that Dykstra would admit that he told Weiland

he could not be reimbursed for Ortman Clinic bills, but that premise is not

sustainable without an offer of proof.

[¶69.] Beyond this, it is difficult to perceive any prejudice from the exclusion

of Dykstra’s testimony at trial. Although it is not completely clear, it seems as

though Weiland wanted to offer the testimony to augment his total medical bills,

but he has not identified how he was prejudiced by not doing so. He testified that

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he did not pay for the treatments at the Ortman Clinic, which were performed by

his colleagues as a professional courtesy.

[¶70.] And, regardless, there was no restriction on his ability to offer evidence

of the value of the chiropractic treatment he received. We also note that the court’s

ruling prevented Bumann from cross-examining Weiland and his colleagues about

compliance with certain record keeping rules that are required when chiropractors

are treating patients. Under the circumstances, we affirm the circuit court’s

decision to exclude Dykstra’s testimony.

Jury instruction

[¶71.] During voir dire, two jurors said that they had similar insurance

claims to Weiland’s. Later, during a routine recess at trial, one of the jurors asked

the bailiff “who pays” for the damages awarded. Outside the presence of the jury,

the bailiff detailed the conversation to the circuit court:

And one lady says, “I’ve got a question.” And I said, “From your body language, I can tell that I don’t think I can answer it, but I can’t stop you from asking it.” And she said, “Where does the money come from? You know, does he have to pay for it?” And I said, “I was right the first time. I can’t answer that. But you will get all of the information about that you need to hear to make a decision in the courtroom.”

The trial continued without any objection from the parties.

[¶72.] However, while the parties were finalizing jury instructions, Weiland

proposed South Dakota Pattern Jury Instruction 10-20-60 which states, “Whether a

party is insured has no bearing whatever on any issue that you must decide. You

must refrain from any inference, speculation, or discussion about insurance.”

Determining that the bailiff “properly responded” to the juror’s question, the circuit

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court denied the proposed instruction. Further, the court stated that it did not

“think we’re yet at a point where the issue has been explicitly injected into the

subject matter of this such that this instruction is appropriate.” 8

[¶73.] “A circuit court’s denial of proposed jury instructions is also reviewed

under an abuse of discretion standard.” Sedlacek, 2020 S.D. 18, ¶ 17, 941 N.W.2d

at 823 (citation omitted). In Beck v. Wessel, 90 S.D. 107, 109–13, 237 N.W.2d 905–

06 (1976), we affirmed the circuit court’s unilateral decision to issue a simple

negative response to the jury’s question during deliberation, “Can you tell us the

amount of insurance each party has?” Although we acknowledged the court should

have consulted with the parties’ attorneys, we recognized that the court’s prompt

answer avoided bringing the jurors back into court to admonish them against

considering the existence of liability insurance. Such an admonishment, we

reasoned, “may well have compounded the problem by making a much larger issue

of liability insurance in the minds of the jury.” Id. at 114, 237 N.W.2d at 909.

[¶74.] Here, the circuit court acted within its discretion when it assessed the

need for the instruction and the risk that it posed of unnecessarily emphasizing the

topic of liability insurance. The “who pays” question was posed to the bailiff by a

single juror during a recess and not on behalf of the jury during deliberations. Also,

the bailiff’s answer was appropriate and seems to have resolved the issue because

there were no additional questions on the topic.

8. Strictly speaking, there was no liability insurance carrier in the traditional sense. As defense counsel explained, Bumann’s conduct was covered by South Dakota’s Public Entity Pool for Liability (PEPL fund). See Pub. Entity Pool for Liab. v. Score, 2003 S.D. 17, ¶¶ 9–10, 658 N.W.2d 64, 69 (discussing the PEPL Fund and citing cases).

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[¶75.] Weiland relies on an Illinois intermediate appellate court decision to

support his argument that the circuit court erred when it denied the jury

instruction. See Baraniak v. Kurby, 862 N.E.2d 1152, 1155 (Ill. App. Ct. 2007)

overruled on other grounds by Peach v. McGovern, 129 N.E.3d 1249 (Ill. 2019). In

Baraniak, the trial court sent nonresponsive answers to two jury questions during

deliberations asking who paid the plaintiff’s medical bills. 862 N.E.2d at 1155. The

court’s responses focused generally on the existing evidence and instructions but did

not address the inquiry. Id. On appeal, the appellate court determined “there was

a duty to answer [the jury’s] questions, and the failure to do so resulted in

prejudicial and reversible error, mandating a new trial.” Id.

[¶76.] But the Baraniak decision lacks persuasive value here for the reasons

stated above. There is no indication that the question to the bailiff from a single

juror during a recess reflected a collective inquiry from all the jurors. The circuit

court’s determination that Weiland’s proposed instruction was not necessary to

neutralize a concern about liability insurance was within the range of permissible

choices.

Per diem calculation argument

[¶77.] Before trial, Bumann moved to preclude Weiland from presenting a

per diem calculation for non-economic damages. Weiland sought to ask the jury for

non-economic damages calculated at $75,000 a year for 40 years. The court granted

Bumann’s motion, and Weiland now appeals, arguing the court’s decision was

erroneous and prejudicial.

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[¶78.] We have not previously confronted the propriety of per diem

arguments, or arguments that suggest a sum of non-economic damages aggregated

incrementally by using units of time. See Reindl v. Opitz, 88 S.D. 223, 227–28, 217

N.W.2d 873, 876 (1974) (holding that objection to a per diem argument was not

properly before the court on appeal). Commentators have noted a split of authority

regarding whether these per diem, or unit-of-time, arguments are appropriate, with

many courts concluding the ultimate determination lies within the trial court’s

discretion. See 2 American Law of Torts § 8:10 (noting that “courts are in wide

disarray” on whether to allow a per diem damages argument and that some

jurisdictions find the matter within the trial court’s discretion); see also, James O.

Pearson, Jr., Per Diem or Similar Mathematical Basis for Fixing Damages for Pain

and Suffering, 3 A.L.R. 4th 940 (1981).

[¶79.] In our view, both the relative infrequency of appellate challenges to

per diem arguments in South Dakota and the nature of the topic itself suggest that

these damage arguments do not differ fundamentally from the other myriad of

topics the circuit court controls through the exercise of its discretion, including the

argument of counsel. See Vanskike v. ACF Indus., Inc., 665 F.2d 188, 211 (8th Cir.

1981) (“[A]lthough we continue to condemn instructions requiring per diem

mathematical calculations, we do not disapprove of per diem closing arguments as

long as such arguments are carefully controlled by the district court.”); see also,

Waldron v. Hardwick, 406 F.2d 86, 89 (7th Cir. 1969) (holding the permission to

argue for unit-of-time damages “should be left largely to the discretion of the trial

judge”).

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[¶80.] Further, assigning a monetary value to pain and suffering is often

properly based on certain increments of time. See, e.g., Sunset Brick & Tile, Inc. v.

Miles, 430 S.W.2d 388, 390 (Tex. Civ. App. 1968) (“The damage issues themselves

divided the pain into periods of time. The time from injury to trial was one period,

and from trial to the future was another. The law recognizes that pain is a proper

item for recovery; that it is susceptible only for an approximate monetary

evaluation, that jurors may arrive at a figure from their common knowledge and

sense of justice, and that counsel may suggest what they believe the evidence will

support.”). Accordingly, we do not believe a per se rule regarding per diem or

similar unit of time damages arguments is necessary but, instead, opt to allow

circuit courts to exercise their discretion in each case to determine whether the

argument is supported by the evidence. 9 See, e.g., Debus v. Grand Union Stores of

Vermont, 621 A.2d 1288, 1290 (Vt. 1993) (“A per diem argument is a tool of

persuasion used by counsel to suggest to the jury how it can quantify damages

based on the evidence of pain and suffering presented.”); Richardson v. Children’s

Hosp., 787 N.W.2d 235, 246 (Neb. 2010) (concluding per diem argument is proper

where it is supported by the evidence); Southard v. Hancock, 689 S.W.2d 616, 618

9. Where the circuit court permits a per diem or unit of time damages argument, the court could also consider the propriety of an instruction explaining to the jury that the mathematical calculation for non-economic damages is offered as an argument but is not, itself, evidence. See, e.g., Vogel v. Fetter Livestock Corp., 394 P.2d 766, 772 (Mont. 1964) (reiterating that “the per diem argument is used for illustrative purposes,” and recommending that the trial court “instruct the jury that any remark of counsel not sustained by the evidence is to be disregarded.”).

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(Ky. Ct. App. 1985) (holding a per diem argument is permissible if supported by the

evidence).

[¶81.] Here, the circuit court’s decision that prevented Weiland’s counsel

from making a per diem argument will not justify relief on appeal. Although the

court incorrectly viewed per diem arguments as categorically barred, the court’s

decision is, nevertheless, supportable in this case as an exercise of discretion

because the court could have reasonably concluded that the evidence was ill-suited

to a per diem damages argument.

[¶82.] Weiland sought to use the per diem argument in conjunction with his

anticipated life expectancy to argue for future non-economic damages for pain and

loss of enjoyment of life. However, there was evidence adduced at trial that

Weiland’s pain had resolved, he had no restrictions, his injuries were not

permanent, he required no further treatment, and he engaged in numerous physical

activities since the accident. Weiland’s proposed per diem argument that his pain

and loss of enjoyment of life would persist for 35 years into the future was simply

not supported by the evidence.

Conclusion

[¶83.] Weiland’s claims for summary judgment and judgment as a matter of

law regarding negligence are moot. The circuit court’s denial of summary judgment

and judgment as a matter of law concerning contributory negligence was proper

because there was evidence admitted at trial that would have permitted a finding of

contributory negligence. Further, the court correctly denied Weiland’s motion for

summary judgment and judgment as a matter of law on the mitigation of damages

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issue because there was sufficient evidence presented to submit the issue to the

jury.

[¶84.] We also conclude that the circuit court acted within its discretion when

it excluded the accident report, redacted portions of the SDHP investigation

materials, and refused to allow testimony from the claims adjuster, Dykstra. Also,

the court did not abuse its discretion when it declined to instruct the jury

concerning the topic of liability insurance and when it precluded Weiland from

making a per diem argument.

[¶85.] We, therefore, affirm the circuit court judgment, making it

unnecessary to address the issues identified in Bumann’s notice of review.

[¶86.] JENSEN, Chief Justice, and KERN, DEVANEY, and MYREN,

Justices, concur.

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