Thomas et al v. Sully County
Annotate this CaseHarry Thomas and Kay Thomas
Husband and Wife, and
Lowell West and Catherine West,
Husband and Wife
Plaintiffs and Appellants
v.
Sully County,
A Political Subdivision of
the State of South Dakota
Defendant and Appellee
[2001 SD 73]
South Dakota Supreme Court
Appeal from the Circuit Court of
The Sixth Judicial Circuit
Sully County, South Dakota
Hon. James W. Anderson, Judge
Danny R. Smeins
Webster, South Dakota
Attorney for plaintiffs and appellants
David A. Gerdes of
May, Adam, Gerdes and Thompson
Pierre, South Dakota
Attorney for defendants and appellee
Considered on Briefs April 24, 2001
Opinion Filed 6/6/2001
#21591
GILBERTSON, Justice
[¶1.] Harry and Kay Thomas, and Lowell and Catherine West (Plaintiffs) sued Sully County (County) claiming damages to their fences. A jury returned a verdict in favor of County. The trial court entered judgment on the verdict, from which Plaintiffs have appealed. We affirm.
FACTS AND PROCEDURE[¶2.] Plaintiffs are landowners in Sully County, South Dakota. During the winter of 1996-97, Sully County received nearly seven feet of snow. By January of 1997, County’s normal snow removal equipment could no longer move the large amounts of hard packed snow that had accumulated along the roadside. In response, County acquired payloaders and bulldozers for use in keeping the roads open. To further combat the drifting snow, County began clearing snow off the right-of-ways.
[¶3.] On November 13, 1997, Plaintiffs commenced a lawsuit against County. In that lawsuit, Plaintiffs alleged County damaged their fences while moving snow off the right-of-ways. County denied liability and claimed the snow removal was within its statutory discretion, was a public necessity or that Plaintiffs’ damage resulted from an act of God. The dispute was tried to a jury on April 25, 2000. The jury returned a general verdict in favor of County. The trial court entered its judgment in accord with the jury verdict on April 28, 2000. Plaintiffs appeal, raising two issues.
1. Whether the trial court erred in giving a jury instruction that County’s decisions relating to snow removal were discretionary.
2. Whether the trial court erred in admitting evidence of a collateral source.
STANDARD OF REVIEW[¶4.] When we review jury instructions on appeal, we examine them as a whole to determine whether “they provided a full and correct statement of the law.” Veeder v. Kennedy, 1999 SD 23, ¶32, 589 NW2d 610, 618. Reversible error exists if the instructions fail to meet that standard; for instance, if they conflict, mislead, or cause confusion. Id. If the instruction was given in error, an appellant must then show that the instruction was prejudicial, “meaning the jury probably would have returned a different verdict if the faulty instruction had not been given.” Id.
ANALYSIS AND DECISION
[1]. That statute provides:
The board of county commissioners with the county highway superintendent shall be the sole judges as to the necessity, need, and emergencies for snow removal operations and repairs, and shall exercise full discretion with decisions relative thereto. To expend money from said fund as otherwise provided in § 34-5-3, the Governor or the board of county commissioners by a resolution duly adopted must declare that a time of emergency and disaster exists.
[2]. This testimony also supports a finding for County on Instruction 10, which provides:
In actions as this, and except as otherwise elsewhere stated in these instructions, a claimant for damages cannot recover if the accident was due to an act of God. An accident results from an act of God when it is due directly and exclusively to natural causes without human intervention, which by no amount of foresight, pain, or care, reasonably to have been expected could have been prevented.
If the jury finds that the damage which occurred was solely the result of an act of God, the defendant is not liable for the damage and the jury must return a verdict for the defendant. If the negligence of the defendant proximately contributed and an act of God combined to produce the damage, the defendant is liable.
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