PIERRE, S.D. (Legal Newsline) – A more than $2.2 million award handed down in 2016 by a Davison County jury for a now-deceased man injured at a Menards store in Mitchell, South Dakota, was recently affirmed by the South Dakota Supreme Court.

"Given the insufficiency of evidence establishing the first prong of knowledge of the risk or the second prong of appreciation of its character, an assumption-of-the-risk defense could not be established," Justice Janine M. Kern wrote in the high court's unanimous opinion handed down Feb. 7

"Therefore, the circuit court did not abuse its discretion when it declined to instruct the jury on assumption of the risk."

Chief Justice David E. Gilbertson, Justice Steven L. Zinter, Justice Glen A. Severson and now-retired Justice Lori S. Wilbur concurred in the opinion. Justice Steven R. Jensen, appointed by South Dakota Gov. Dennis Daugaard in November to replace Wilbur, did not participate in the case.

The justices handed down their ruling in Menard Inc.'s appeal of Davison County 1st Judicial Circuit Court's denial during trial of the home improvement store chain's request for an instruction to the jury about whether the late Ronald Jensen, then 71, assumed risk while plywood he'd just purchased was loaded into his truck on Aug. 1, 2012. 

Jensen fell and struck his head after "a strong, southward gust began moving the cart" from which the plywood was being loaded, according to background information in the high court's decision.

Jensen was transported to Queen of Peace Hospital, where he underwent surgical procedures for cervical fractures and dislocations and was left a quadriplegic, later requiring a tracheostomy and was placed permanently on a ventilator, according to the high court's decision. The following month, Jensen "was diagnosed with an aggressive type of bladder cancer," which killed him in January the following year, the decision said.

"The case was tried before a jury from Oct. 31, 2016, through Nov. 3, 2016," the decision said. "Jensen’s expert witness testified that Menard's safety protocols did not meet the appropriate standard of care and that a double-rail cart would have been safer for loading plywood."

Jensen's expert witness testified at trial that Menards' safety protocols "did not meet the appropriate standard of care" and claimed that a double-railed cart, rather than the single-railed cart used, would have been safer, according to the decision. 

Menards' counsel "raised affirmative defenses," including the risk Jensen assumed and "contributory negligence," and objected to the circuit court's refusal to instruct the jury on "assumption of the risk," the decision said.

In the high court's decision, Kern wrote that the danger Jensen "faced was not so plainly observable" and that Menards' claim that the risk that plywood vertically stacked on the single-rail might tip over on a windy day "context." Customers also "could presume" that Menards' employees are trained in safety protocols, Kern wrote in the decision.

"And while Jensen's expert witness did not characterize the incident as a freak accident, he clarified by explaining that the term implies nothing could be done to prevent it, like an act of God or an earthquake," Kern wrote. "In this case, precautions could and should have been taken to minimize the risk."

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