author: GORS, Circuit Judge.

text:
    2005 SD 69
    Kathleen M. THOMPSON, As Personal Representative of the Estate of Terry L. Thompson, Plaintiff and Appellee, v. Larry MEHLHAFF d/b/a Mehlhaff Construction and d/b/a Mehlhaff Trucking, Defendant and Appellant.
    Nos. 23229, 23230.
    Supreme Court of South Dakota.
    Argued Jan. 12, 2005.
    Decided June 8, 2005.
    Rehearing Denied July 13, 2005.

      Jack Theeler and Douglas M. Dailey of Morgan, Theeler, Wheeler, Cogley & Petersen, Mitchell, South Dakota, Attorneys for plaintiff and appellee.
    Gary P. Thimsen and Jennifer L. Woll-man of Woods, Fuller, Shultz & Smith, Sioux Falls, South Dakota, Attorneys for defendant and appellant.
   GORS, Circuit Judge.

[¶ 1.] Terry Thompson’s wife, Kathleen, on behalf of his estate (Thompson), sued Mehlhaff Trucking (Mehlhaff) for the wrongful death of her husband following a two-truck collision. The jury found Thompson to be contributorily negligent more than slight and entered a zero damage award. The trial court granted Thompson’s motion for judgment notwithstanding the verdict on the jury’s finding of contributory negligence more than slight but let the verdict stand on Mehl-haff s liability and ordered a new trial on damages only. Mehlhaff appeals and Thompson has filed a notice of review. We affirm.

FACTS

[¶ 2.] Spencer Quarries was paving a road with asphalt near Greenwood, South Dakota, in Charles Mix County. Spencer Quarries was using its trucks and employees and hired additional trucks and drivers from Mehlhaff to haul hot mix to the lay-down machine. The loaded trucks drove on the “cold” side of the road to avoid damage to the newly laid asphalt on the “hot” side of the road. The empty trucks returned on the freshly paved “hot” side of the road. As a result, at the time of the collision, trucks were driving on the left-hand or “wrong” side of the road instead of the usual right-hand or “correct” side of the road. To protect the freshly laid asphalt, the trucks were driving like they were in England instead of South Dakota.

[¶ 3.] On June 16, 2000, Thompson, who was employed by Spencer Quarries, collided with Stanley Baltzer, an employee of Mehlhaff. Thompson was driving on the “hot” side of the road in the left-hand lane (where he was supposed to be). Balt-zer swerved sharply to the right as he went around a curve in the road and the collision occurred in Thompson’s lane. The closing speed of the trucks was more than 100 miles per hour. Together the trucks’ total weight was 128,000 pounds. Both Thompson and Baltzer were killed in the collision.

[¶ 4.] Thompson’s estate received worker’s compensation benefits as a result of his death from his employer, Spencer Quarries. Baltzer’s estate also collected worker’s compensation benefits from his employer, Mehlhaff. Thompson then sued Mehlhaff asserting vicarious liability for the wrongful death of her husband caused by Mehlhaff s employee, Baltzer. Prior to trial, Mehlhaff moved for summary judgment claiming that Thompson was limited to the exclusive remedy of worker’s compensation. The trial court denied summary judgment and allowed Thompson’s suit against Mehlhaff to proceed.

[¶ 5.] The case was tried January 20-22, 2004. The jury returned a zero verdict against Thompson and in favor of Mehl-haff. In answers to special interrogatories, the jury found Baltzer was negligent and also found that Thompson was contrib-utorily negligent more than slight. The trial court entered judgment in favor of Mehlhaff based on the jury’s verdict.

[¶ 6.] Thompson moved for judgment notwithstanding the verdict and for a new trial. The trial court granted Thompson’s motion and entered a judgment for Thompson on liability based on the jury’s finding that Baltzer was negligent. The trial court further granted a judgment notwithstanding the verdict on the jury’s finding that Thompson was contributorily negligent. In doing so, the court concluded that it should have granted Thompson’s motion for directed verdict on contributory negligence at the end of the trial because there was insufficient evidence for the jury to find contributory negligence more than slight. Finally, having granted a judgment notwithstanding the verdict for Thompson on liability, the trial court granted a new trial on damages. Mehlhaff appeals and Thompson raises one issue by notice of review.

ANALYSIS

ISSUE ONE

[¶ 7.] Whether worker’s compensation was Thompson’s exclusive remedy.

STANDARD OF REVIEW

[¶ 8.] For the purpose of the summary judgment motion, both sides agreed that the material facts were not in dispute. Therefore, the exclusive remedy issue was strictly a question of law. Construction of worker’s compensation statutes and their application to the facts is a question of law. Faircloth v. Raven Industries, Inc., 2000 SD 158, ¶ 4, 620 N.W.2d 198, 200. “Questions of law are reviewed de novo without deference to the trial court.” Olson-Roti v. Kilcoin, 2002 SD 131, ¶ 18, 653 N.W.2d 254, 258; City of Colton v. Schwebach, 1997 SD 4, ¶ 8, 557 N.W.2d 769, 771 (citing Jasper v. Smith, 540 N.W.2d 399, 401 (S.D.1995)).

DISCUSSION

[¶ 9.] Spencer Quarries was the general contractor on the Greenwood project and Mehlhaff was a subcontractor. Thompson was a truck driver for Spencer Quarries. When Thompson was killed on the job, his wife, as the personal representative of his estate, received worker’s compensation benefits for the death of her husband from Spencer Quarries. When Thompson’s estate sued Mehlhaff for negligence, Mehlhaff moved for summary judgment and argued that the estate’s claim should be dismissed because the worker’s compensation benefits that were received from Spencer Quarries were Thompson’s exclusive remedy. The trial court denied the motion.

[¶ 10.] This case presents a question of first impression in South Dakota. Mehlhaff urges this Court to adopt the minority rule that worker’s compensation is the sole remedy of an employee of a general contractor who is injured by the negligence of an employee of a subcontractor. However, for the reasons stated below, we decline to do so and instead adopt the majority rule that an employee of a general contractor may collect worker’s compensation from the general contractor and also sue a negligent subcontractor or a subcontractor for the negligence of an employee of the subcontractor.

[¶ 11.] The purpose of the South Dakota Worker’s Compensation Act is to provide an injured employee with an expeditious remedy independent of fault and to limit the liability of employers and fellow employees. Harn v. Continental Lumber Co., 506 N.W.2d 91, 95 (S.D.1993). There is an inherent trade-off in the worker’s compensation scheme. The employee is guaranteed compensation if injured on the job but the employer’s liability is limited in exchange for this certainty. The quid pro quo is liability for immunity. Therefore, “[w]orker’s compensation is the exclusive remedy for all on-the-job injuries to workers except those injuries intentionally inflicted by the employer.” Id. at 95.

[¶ 12.] SDCL 62-3-2 provides that an employee’s rights under the worker’s compensation law for death or injury arising out of employment are exclusive as to both the employer and fellow employees. That statute provides:

The rights and remedies herein granted to an employee subject to this title, on account of personal injury or death arising out of and in the course of employment, shall exclude all other rights and remedies of such employee, his personal representatives, dependents, or next of kin, on account of such injury or death against his employer or any employee, partner, officer, or director of such employer, except rights and remedies arising from intentional tort.

SDCL 62-3-2 (emphasis added). Therefore, the employee cannot sue the employer or fellow employees except for intentional torts. Id. However, an injured employee can sue a third party for negligence subject to the employer’s right to subrogation for the worker’s compensation paid to the employee. SDCL 62-4-38. That statute provides:

If an injury for which compensation is payable under this title has been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee may, at the employee’s option, either claim compensation or proceed at law against such other person to recover damages or proceed against both the employer and such other person. However, in the event the injured employee recovers any like damages from such other person, the recovered damages shall be an offset against any worker’s compensation which the employee would otherwise have been entitled to receive.

Id. (emphasis added). For example, if Thompson had been killed by a third party, such as a member of the motoring public unrelated to the construction project, Thompson’s estate could collect worker’s compensation and sue the third party for negligence. If Thompson’s estate obtained a judgment from the third party, the estate would then have to repay the worker’s compensation benefits to Spencer Quarries from that judgment.

[¶ 13.] Here, Thompson’s estate sued the subcontractor, Mehlhaff, for vicarious liability as a result of Baltzer’s negligence. Mehlhaff asserts Thompson could not sue under 62-3-2 because Baltzer was a fellow employee. While it is correct that Thompson could not sue Baltzer if he were a fellow employee, Baltzer worked for Mehl-haff, not Spencer Quarries. Therefore, Baltzer was not a fellow employee. Consequently, SDCL 62-3-2 did not preclude Thompson from suing Mehlhaff.

[¶ 14.] Mehlhaff also urges the adoption of a common employment theory to preclude this tort action. Mehlhaff argues that even if Thompson and Baltzer were not technically both employed by Spencer Quarries, as a practical matter they were both doing the same thing on the same job. For that proposition Mehlhaff relies upon a 1936 Massachusetts case, Dresser v. New Hampshire Structural Steel Co., 296 Mass. 97, 101, 4 N.E.2d 1012, 1013-14 (1936), wherein the court held:

[T]he plaintiff and the defendant’s employer and every other workman on the job, regardless of his position, were engaged in a common employment and had the benefits of the Workmen’s Compensation Act. All the employers on the job, including the defendant, had insured under the act, and thereby provided for all employees the benefit of the act. By so doing, they became protected from a liability to pay damages to workmen and employees injured while with the scope of their common employment.

However, Massachusetts abolished “common employment immunity” by statute in 1972. MassGenL, ch 152, § 15 (2003).

[¶ 15.] Nevertheless, Mehlhaff asserts this Court should adopt the position of those minority jurisdictions that recognize the common employment doctrine. For example, in Haynes v. James H. Carr, Inc., 427 F.2d 700, 702 (4thCir.1970), the common employment theory was applied where a subcontractor was performing part of the same trade, business or occupation as the general contractor. The test applied there was whether the subcontractor was doing the same work that the general contractor was doing on the job site and whether the general contractor could have done the work if it had not elected to hire the subcontractor. Id. In Kast v. PPG Industries, Inc., 664 F.Supp. 237, 240 (W.D.Va.1987), an employee of a general contractor was also precluded from suing a subcontractor for negligence based on this theory. Similarly, in Alvis v. Bill Jackson Rig Co., Inc., 636 P.2d 910, 912 (Okla.App.1981), a general contractor’s employee who was injured by a subcontractor could not sue because he was in the same employment as the subcontractors. As previously mentioned, these cases represent the minority rule.

[¶ 16.] The majority rule is that the liability for benefits only runs up the ladder, not down. 6 Larson, Worker’s Compensation Law, § 111.04[l][e] (2004) and [2] (2002). Baltzer could collect worker’s compensation from Mehlhaff but, if Mehl-haff did not pay, Baltzer could also collect worker’s compensation from Spencer Quarries. Since Spencer Quarries would be liable for Baltzer’s worker’s compensation if Mehlhaff did not pay, Spencer Quarries would be immune from suit by Baltzer for negligence. See Metzger v. J.F. Brunken & Son, Inc., 84 S.D. 168, 172, 169 N.W.2d 261, 263-64 (1969). The general contractor receives immunity because the general contractor is the back-up provider of worker’s compensation coverage. 6 Larson, Worker’s Compensation Law, § 111.04[l][b] 111-27 (2004). The opposite is not true.

When the positions are reversed, and an employee of the general contractor, or the general contractor as subrogee, sues the subcontractor in negligence, the great majority of jurisdictions have held that the subcontractor is a third party amenable to suit. The reason for the difference in result is forthright: the general contractor has a statutory liability to the subcontractor’s employee, actual or potential, while the subcontractor has no comparable statutory liability to the general contractor’s employee.

6 Larson, Worker’s Compensation Law, § 111.04[2] (2002). Thompson could not collect worker’s compensation from Mehl-haff if Spencer Quarries did not pay. Mehlhaff was not an insurer of Spencer Quarries’ employees even though Spencer Quarries was an insurer of Mehlhaff s employees.

[¶ 17.] The quid pro quo for the employer’s assumption of liability for worker’s compensation is immunity from suit by the employee. Spencer Quarries was liable for and paid worker’s compensation benefits for Thompson and therefore is entitled to immunity. Mehlhaff was not liable for and did not pay worker’s compensation benefits for Thompson and therefore is not entitled to the quid pro quo of immunity from suit by Thompson. When Thompson took a job with Spencer Quarries, he waived his right to sue Spencer Quarries in return for a sure thing on liability. Thompson did not go to work for Mehlhaff and did not waive his right to sue Mehlhaff. Mehlhaff had no worker’s compensation obligation to Thompson. As a result there was no quid pro quo between Thompson and Mehlhaff. Therefore, Mehlhaff was not an employer of Thompson under SDCL 62-3-10 entitled to immunity because Mehlhaff had no duty to provide compensation for Thompson.

[¶ 18.] As the final argument in support of the common employment theory, Mehlhaff contends that Spencer Quarries was the “statutory employer” of Baltzer because it was also liable for worker’s compensation insurance and benefits for Baltzer under SDCL 62-3-10. That statute provides:

A principal, intermediate, or subcontractor shall he liable for compensation to any employee injured while in the employ of any one of his subcontractors and engaged upon the subject matter of the contract, to the same extent as the immediate employer. Any principal, intermediate, or subcontractor who shall pay compensation under the provisions of this section may recover the amount paid from any person, who, independently of this section, would have been liable to pay compensation to the injured employee. Every claim for compensation under this section shall in the first instance be presented to and instituted against the immediate employer, but such proceeding shall not constitute a waiver of the employee’s rights to recover compensation under this title from the principal or intermediate contractor, but the collection of full compensation from one employer shall bar recovery by the employee against any others, and he shall not collect from all a total compensation in excess of the amount for which any of such contractors is liable. This section shall apply only in cases where the injury occurred on, in, or about the premises on which the principal contractor has undertaken to execute work or which are otherwise under his control or management, (emphasis added).

Mehlhaff claims entitlement to the same immunity enjoyed by Spencer Quarries under SDCL 62-3-10. The statute provides that the employee shall not collect total worker’s compensation in excess of the employee’s total damages. However, this argument fails to appreciate that SDCL 62-3-10 does not provide that Thompson could not sue Mehlhaff; the statute only provides that Baltzer could not collect from Spencer Quarries if paid in full by Mehlhaff.

[¶ 19.] Mehlhaff is not entitled to immunity and may be sued by Thompson. We hold that a general contractor who is liable for worker’s compensation benefits is entitled to immunity but a subcontractor who is not liable for the benefits is not entitled to such immunity. Therefore, the worker’s compensation benefits, which Thompson’s estate received from Spencer Quarries, were not its exclusive remedy and Thompson’s estate could sue Mehlhaff for Baltzer’s negligence.

ISSUE TWO

[¶20.] Whether the trial court erred in excluding Mehlhaff s expert witness.

STANDARD OF REVIEW

[¶ 21.] Admission of expert testimony is within the broad discretion of the trial court. Schrader v. Tjarks, 522 N.W.2d 205, 209 (S.D.1994); Stormo v. Strong, 469 N.W.2d 816, 820 (S.D.1991). “A trial court’s evidentiary rulings are presumed to be correct and will not be reversed unless there is a clear abuse of discretion.” Stormo, 469 N.W.2d at 820. In addition to showing an abuse of discretion, Mehlhaff must show that the excluded evidence might and probably would have resulted in a different verdict. Schrader, 522 N.W.2d at 209-10. Finally, the proponent of excluded evidence must also attempt to offe6r the excluded evidence at trial and make an offer of proof. Joseph v. Kerkvliet, 2002 SD 39, ¶ 7, 642 N.W.2d 533, 535 (quoting State v. Norville, 23 S.W.3d 673, 685 (Mo.Ct.App.2000)).

DISCUSSION

[¶ 22.] On January 30, 2003, a year before the trial, the trial court set a date for the disclosure of expert witnesses as February 17, 2003, for Thompson and March 17, 2003, for Mehlhaff. Thompson disclosed experts on February 14, 2003, before the deadline. Mehlhaff did not disclose any experts by the March 17, 2003, deadline. Seven months after the deadline, Mehlhaff had not yet disclosed any experts. On October 17, 2003, Thompson filed a motion in limine to prohibit Mehl-haff from presenting any expert witness testimony. Finally, three weeks after the motion, and nearly eight months after the deadline had passed, Mehlhaff disclosed Thomas Alcorn as an accident reconstruction expert and moved for an extension of the deadline and a continuance of the trial set for January 20, 2004. The trial court denied the motion without a hearing.

[¶ 23.] Alcorn was not allowed to testify at trial. After the close of Thompson’s case, Mehlhaff made an offer of proof submitting Alcorn’s report to establish what Alcorn’s testimony would have been. The offer of proof was denied.

[¶ 24.] Alcorn’s report included the following in his “Discussion:”

This analysis has also taken into consideration the actions of the drivers in this accident. Instructions given to the truck drivers indicate that the loaded trucks were to drive on the old section of roadway and empty trucks on the new section of roadway. At the time of the accident the Mehlhaff truck [driven by Baltzer] was loaded and traveling west on the old section of roadway in the eastbound lane apparently as he had been instructed. Analysis of the evidence indicates the Spencer Quarries truck [driven by Thompson] was traveling east in the eastbound lane and not in accordance with the instructions given by the contractor. He was traveling on the cured or old mat and not on the new mat. It should be noted that Mr. Dirks report indicates that the driver of the Spencer Quarries truck [Thompson] was the contractor’s employee that instructed other drivers where to drive. In that case, the Spencer Quarries driver [Thompson] was in the wrong lane at the time of the accident. Failure on the part of the driver of the Spencer Quarries truck [Thompson] and trailer to drive in the opposing lane as the drivers had been instructed is a cause of this accident. The driver of the Mehlhaff truck [Baltzer] and trailer was following instructions that had been given at the time of the accident. Once he was able to determine that the Spencer Quarries truck [Thompson] and trailer were in his lane he attempted to avoid to the right. The Mehlhaff truck driver [Baltzer] did not contribute to the cause of this accident. (emphasis added).

Alcorn concluded that Thompson caused the accident, not Baltzer. Good stuff for the defense. In fact, it would have been the only evidence of contributory negligence. However, it was not allowed into evidence based on the untimely disclosure.

[¶ 25.] Mehlhaff argues that exclusion of the testimony should have been the “last resort” sanction for failure to timely disclose the witness. Schrader; 522 N.W.2d at 210. Mehlhaff relies upon a four-part test from Verzwyvelt v. St. Paul Fire & Marine Ins. Co., 204 F.R.D. 309, 311 (W.D.La.2001), for determining whether to exclude a witness for untimely disclosure. First, the court should examine the party’s explanation for failure to comply with the scheduling order. Id. Second, the court should determine the prejudice to the opposing party. Id. Third, the court should consider the possibility of curing the prejudice by granting a continuance. Id. Fourth, the court should take into account the importance of the witness’ testimony. Id. However, even considering these factors the trial court did not abuse its discretion.

[¶ 26.] First, the only explanation offered by Mehlhaff for failure to disclose Alcorn in a timely manner was that by agreement both parties continued other discovery past the deadlines. Moreover, the record shows that Mehlhaff did not contact Alcorn until March 23, 2003, after the disclosure deadline. Then, despite written discovery requests asking for the identity of expert witnesses and the identity of persons investigating or reconstructing the collision, Mehlhaff waited until November 7, 2003, to disclose the expert it had retained seven months earlier. Mehl-haff also failed to supplement its discovery as required by the rules of discovery.

[¶ 27.] Second, in this case, Thompson would have been prejudiced by allowing Alcorn’s late disclosure. Late disclosure would have required a continuance for additional discovery by Thompson and possible retention of additional experts.

[¶ 28.] Third, granting a continuance would not have solved the prejudice to Thompson. Despite a scheduling order requirement that any additional motions be filed by October 17, 2003, Mehlhaff did not file the motion for extension of disclosure and continuance by the deadline. Even when Thompson moved in limine to exclude any expert testimony, Mehlhaff did not disclose Alcorn until November 7, 2003, and did not move to extend the deadline to disclose until November 11, 2003, almost a month after the deadline for filing pre-trial motions. Everything Mehlhaff did in respect to Alcorn’s testimony was dilatory. No other efforts appeared to faze Mehlhaff. The trial court did not err in determining exclusion was the only way to remedy the prejudice.

[¶ 29.] Fourth, Alcorn’s testimony was not important enough to allow despite the violation of the disclosure deadline. Mehl-haff must show that Alcorn’s testimony would have made a difference in the jury’s finding. Schrader, 522 N.W.2d at 209-10. Thompson points out that the jury did find in Mehlhaff s favor so Alcorn’s testimony would not have made a difference. While Thompson is correct, the argument begs the question because the trial court set aside the jury’s verdict. The real question is whether the proffered evidence would have made a difference to the trial court which set aside the jury’s finding of contributory negligence.

[¶ 30.] Alcorn’s report was not based on personal knowledge. Alcorn’s facts were taken solely from the State of South Dakota Investigator’s Motor Vehicle Accident Report, the South Dakota Highway Patrol Case Report and the Lewis L. Dirk Accident Reconstruction Report-Witness Information. Each of these reports concluded that Thompson and Baltzer were in their proper lanes of travel (i.e., the “wrong” side of the road) prior to the collision and that Baltzer crossed over into Thompson’s lane where the collision occurred. Inexplicably, Alcorn then concluded that Baltzer and Thompson were both traveling in the same lane and that Thompson was in the incorrect lane and that Thompson caused the accident by being in the incorrect lane. Where does this come from? There was no basis for this conclusion anywhere in the reports that Alcorn considered. Alcorn simply manufactured the conclusion out of whole cloth. Saying it is so does not make it so. Al-corn reached his conclusion based on a misinterpretation or misstatement of the evidence he considered. Therefore, it would have been misleading and should not have been admitted. If it had been admitted, cross-examination by Thompson would undoubtedly have exposed Alcorn’s error. Therefore, there was no harm to Mehlhaff. There was no abuse of discretion when the trial court refused the offer of proof and no abuse of discretion in the trial court’s refusal to extend the deadline to allow disclosure of Alcorn as a witness or to continue the trial.

ISSUE THREE

[¶ 31.] Whether the trial court erred in excluding evidence of Spencer Quarries negligence.

STANDARD OF REVIEW

[¶ 32.] Evidentiary rulings are reviewed under the abuse of discretion standard. Zepp v. Hofmann, 444 N.W.2d 28, 31 (S.D.1989). Rulings are presumed to be correct unless there is a clear abuse of discretion. Id.

DISCUSSION

[¶ 33.] Thompson filed a motion in li-mine to prevent Mehlhaff from introducing evidence that Spencer Quarries was also negligent. Mehlhaff resisted, claiming that if the jury returned a verdict for Thompson, the jury should be allowed to apportion liability between Spencer Quarries and Mehlhaff if it found them both to be negligent. Under the exclusive remedy provision of the worker’s compensation law found in SDCL 62-3-2, Spencer Quarries could not be held liable for Thompson’s injury. However, Mehlhaff argued that the jury could still apportion liability between Spencer Quarries and Mehlhaff. Any apportioned liability against Spencer Quarries would reduce Mehlhaffs proportionate share of any award.

[¶ 34.] The trial court ruled that the jury would not be allowed to consider any claimed negligence by Spencer Quarries for apportionment. However, the trial court did allow Mehlhaff to introduce Spencer Quarries’ “rules of the road” for the Greenwood construction project.

[¶ 35.] Mehlhaff argued that Spencer Quarries was partly responsible for the collision because Spencer Quarries’ “rules of the road” for the project required trucks to drive on the wrong side of the road, confusing the drivers and contributing to the collision. Mehlhaff s request for apportionment was based on comparative negligence and supported by cases from several other jurisdictions with comparative negligence statutes. Significantly, Mehlhaff did not claim Spencer Quarries’ alleged negligence was the sole proximate cause of the accident.

[¶ 36.] Mehlhaffs position has previously been rejected by this Court in Parker v. Casa Del Rey-Rapid City, Inc., 2002 SD 29, ¶ 5, 641 N.W.2d 112, 120-21. In that case this Court adopted a Nebraska rule that precludes the employer, who could not be held liable because worker’s compensation is the exclusive remedy, to be interjected into the case unless it was claimed that the employer’s negligence was the sole proximate cause of the employee’s injury. Id. Since Mehlhaff sought to apportion liability with Spencer Quarries, and did not claim that Spencer Quarries was entirely responsible for the collision, the trial court’s ruling was correct and not an abuse of discretion.

ISSUE FOUR

[¶ 37.] Whether the trial court erred in granting the judgment notwithstanding the verdict on the issue of contributory negligence and ordering a new trial on the issue of damages.

STANDARD OF REVIEW

[¶38.] The standard of review on a motion for directed verdict and judgment notwithstanding the verdict is set forth in Roth v. Farner-Bocken, 2003 SD 80, ¶ 8, 667 N.W.2d 651, 658-59:

A motion for directed verdict under SDCL 15-6-50(a) questions the legal sufficiency of the evidence to sustain a verdict against the moving party. Upon such a motion, the trial court must determine whether there is any substantial evidence to sustain the action. The evidence must be accepted which is most favorable to the nonmoving party and the trial court must indulge all legitimate inferences therefrom in his favor. If sufficient evidence exists so that reasonable minds could differ, a directed verdict is not appropriate. The trial court’s decisions and rulings on such motions are presumed correct and this Court will not seek reasons to reverse. A motion for judgment n.o.v. is based on and relates back to a directed verdict motion made at the close of all the evidence. SDCL 15 — 6—50(b). Thus, the grounds asserted in support of the directed verdict motion are brought before the trial court for a second review. We review the testimony and evidence in a light most favorable to the verdict or the nonmoving party, then without weighing the evidence [we] must decide if there is evidence which would have supported or did support a verdictf.]

In Fechner v. Case, 2003 SD 37, ¶ 6, 660 N.W.2d 631, 633-34, this Court stated:

Rulings on motions for judgment notwithstanding verdict are reviewed under the abuse of discretion standard. Bland v. Davison County, 1997 SD 92, ¶ 26, 566 N.W.2d 452, 460. Evidence and inferences most favorable to the non-moving party are examined to determine whether there is substantial evidence to support the jury’s judgment. Robinson v. Mudlin, 273 N.W.2d 753, 755 (S.D.1979). Conflicting evidence is not reweighed; witness credibility is not reassessed. The moving party’s evidence is only given consideration if it is uncontra-dicted or tends to amplify, clarify or explain evidence which supports the verdict. Dartt v. Berghorst, 484 N.W.2d 891, 895 (S.D.1992); Nugent v. Quam, 82 S.D. 583, 589, 152 N.W.2d 371, 374 (1967).

The standard of review on a motion for new trial is also set forth in Roth, 2003 SD 80, ¶ 9, 667 N.W.2d at 659:

Whether a new trial should be granted is left to the sound judicial discretion of the trial court, and this Court will not disturb the trial court’s decision absent a clear showing of abuse of discretion. If the trial court finds an injustice has been done by the jury’s verdict, the remedy lies in granting a new trial. We determine that an abuse of discretion occurred only if no judicial mind, in view of the law and circumstances of the particular case, could reasonably have reached such a conclusion.

Id., (citing Biegler v. American Family Mut. Ins. Co., 2001 SD 13, 1117, 621 N.W.2d 592, 598).

DISCUSSION

[¶ 39.] At the close of the evidence, the trial court, although skeptical, allowed the question of contributory negligence to go to the jury. The jury was given instructions on negligence and contributory negligence. The jury found against Thompson returning a zero verdict and found in a special interrogatory that “Terry L. Thompson [was] contributorily negligent more than slight.” The trial court entered a judgment in favor of Mehlhaff based on the jury’s verdict. Thompson moved for a judgment notwithstanding the verdict and for a new tidal. The trial court granted Thompson’s motion and entered judgment for Thompson and against Mehlhaff for liability based on the jury’s finding that Baltzer was negligent. The trial court also granted a judgment notwithstanding the verdict on the jury’s finding that Thompson was contributorily negligent. The court concluded that it should have granted Thompson’s motion for directed verdict on contributory negligence at the end of the trial because there was insufficient evidence for the jury to find contributory negligence. Finally, having granted judgment notwithstanding the verdict for Thompson on liability, the trial court granted a new trial on damages.

[¶ 40.] Questions of negligence and contributory negligence are almost always questions for the jury. Nelson v. Nelson Cattle Co., 513 N.W.2d 900, 903 (S.D.1994). When an action sounds in negligence, contributory negligence is available to temper the defendant’s liability. Gehrts v. Batteen, 2001 SD 10, ¶ 7, 620 N.W.2d 775, 778. As long as there is competent evidence to support the theory of contributory negligence, it is proper for the issue to go to the jury. Parker, 2002 SD 29, ¶ 5, 641 N.W.2d at 115. The threshold for granting a directed verdict is that no reasonable jury could find contributory negligence.

[¶ 41.] In support of the jury’s verdict of contributory negligence more than slight, Mehlhaff submitted the following, which is viewed in the light most favorable to the verdict:

(1) it was general knowledge that drivers would try to stay off the hot side of the road whether they were empty or full;
(2) empty trailers can damage the hot side too;
(3) a foreman told a driver to use common sense so he always drove on the cold side whether empty or full;
(4) driver Baumiller testified that trucks would run empty on the cold side to stay off the new mat whenever possible;
(5) empty trucks driving on the cold side would use citizen’s band radio communications to tell loaded trucks that they would get over to the hot side and out of the way;
(6) Baumiller said empty trucks drove on the cold side even after the collision that killed Baltzer and Thompson;
(7) driver Carr said it was common knowledge for empty trucks to travel on the cold side;
(8) an independent operator Magstadt had heard of other drivers getting chewed out for driving empty on the hot side;
(9) Waldera admitted that it was possible that drivers with empty trailers did not always drive on the hot side of the road
(10) Trooper Hanson testified that one reason Baltzer braked hard could have been an oncoming vehicle in his lane of travel;
(11) Michael Selves indicated it would be a normal reaction for a driver to swerve into the other lane to avoid something in his direct lane of travel
(12) investigator Lofgren could not dispute that Baltzer’s skid marks began in the cold lane and show that he braked and steered into the hot lane;
(13) Thompson did not brake or attempt any evasive maneuvers to avoid the collision while Baltzer left 90 feet of skid marks

“A claim that the evidence was insufficient to establish contributory negligence is viewed ‘in the light most favorable to upholding the verdict.’ ” Johnson v. Armfield, 2003 SD 134, ¶ 7, 672 N.W.2d 478, 481 (citing Parker, 2002 SD 29, ¶ 5, 641 N.W.2d at 115).

[¶ 42.] Mehlhaffs “evidence” of contributory negligence is built on speculation and innuendo. Several witnesses testified that drivers sometimes returned empty on the cold side of the road instead of on the hot side in violation of the “rules of the road” for the project. However, no one testified that Thompson was on the cold side of the road at or near the time of the collision or that he had ever returned empty on the cold side. Additionally, there was no physical evidence that Thompson was on the cold side prior to the collision and everybody agreed that he was on the hot side of the road at the time of the collision. Speculation that Thompson “might have been” on the cold side did not meet the threshold necessary to create a question of fact for the jury on contributory negligence.

[¶ 43.] We agree with the trial court that Thompson’s motion for a directed verdict on contributory negligence should have been granted at the end of the evidence. Therefore, it was not an abuse of discretion to grant the motion for judgment notwithstanding the verdict. Since there was ample evidence for the jury to find Mehlhaff negligent, it was also not an abuse of discretion to allow the verdict against Mehlhaff to stand. All that was left was to set a new trial on damages.

[¶ 44.] Mehlhaff further complains that the trial court erroneously instructed the jury that Thompson was entitled to a presumption of due care:

Instruction No. 18
It is the established law of this state that in the absence of any evidence as to the conduct of a person who died of injuries received in an accident, there is the presumption that he, acting on the instinct of self-preservation, was in the exercise of ordinary care. The Court rules that this presumption is applicable only to the conduct of Terry Thompson. Stanley Baltzer is not entitled to the presumption.

In Theunissen v. Brisky, 438 N.W.2d 221, 224 (S.D.1989), this Court said “[t]his is a presumption, in the absence of evidence to the contrary, that a person killed in an auto accident was exercising due care for his protection at, and immediately before, the accident.” Olesen v. Snyder, 277 N.W.2d 729, 735 (S.D.1979); Dehnert v. Garrett Feed Company, 84 S.D. 233, 236, 169 N.W.2d 719, 721 (1969); Vaughn v. Payne, 75 S.D. 292, 63 N.W.2d 798 (1954). “This presumption is based on the natural instinct of self-preservation and the normal disposition to avoid self-destruction or personal harm.” Id. Since we have concluded that the trial court was correct in granting the motion for judgment notwithstanding the verdict because there was insufficient evidence of contributory negligence, this instruction was properly given over Mehl-haff s objection that it was not supported by the evidence.

ISSUE FIVE

[¶ 45.] Whether the trial court erred in allowing Spencer Quarries’ “rules of the road” to be introduced into evidence.

[¶ 46.] The trial court ruled that Mehl-haff could introduce Spencer Quarries’ “rules of the road” for the Greenwood construction project. Thompson noticed this ruling for review. However, it is not necessary to reach Thompson’s notice of review issue in view of our decision affirming the trial court’s order granting a judgment notwithstanding the verdict and order for new trial on damages.

[¶ 47.] The trial court is affirmed.

[¶ 48.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.

[¶ 49.] GORS, Circuit Judge, for SABERS, Justice, disqualified.

      . Baltzer's estate collected worker’s compensation benefits for the death of Baltzer from his employer Mehlhaff.

      .Alcorn’s summary of the State of South Dakota Investigator's Motor Vehicle Accident Report contained the following: "A 1987 Freightliner tractor [Baltzer] and trailer was traveling west on 310th Street in the eastbound lane. A 1991 Peterbilt tractor [Thompson] and trailer was traveling east on 310th Street in the westbound lane.... As the 1987 Freightliner tractor [Baltzer] and trailer entered a curve on 310th Street[, t]he driver steered towards the north and crossed over the centerline.”
      Alcorn's summary of the South Dakota Highway Patrol Case Report contained the following: "Mr. Baltzer was traveling west on 310th Street in the eastbound lane. Mr. Thompson was traveling east on 310th Street in the westbound lane. Mr. Baltzer had crossed over the centerline and struck Mr. Thompson.”
      Alcorn’s summary of the Lewis L. Dirk Accident Reconstruction Report-Witness Information contained the following: "[A]ll drivers were driving on the wrong side of the road the day of the collision.”

      . In re Crumling, 214 F. 503, 504 (D.Pa.1914).

      . Thompson noticed this ruling for review as set forth in Issue Five.

      . Page 31 of Mehlhaffs brief contains the following: "Because there was evidence that Spencer Quarries' actions or inactions in overseeing and managing the project were a contributing cause, traffic control regulations adopted in the contract were relevant under SDCL 19-12-1 in considering and allocating proportionate degrees of fault between the parties." (emphasis added).

      . The only testimony that Thompson was on the cold side of the road was from Merle Vaughn who saw Thompson on the cold side when he turned around after dumping his load at the lay-down machine. Thompson had to drive on the cold side to go around the lay-down machine which was on the hot side of the road laying asphalt. By contrast, Marlin Magstadt testified that he was the last person to see Thompson just before the collision. Thompson was returning empty on the hot side of the road.


source: Caselaw Access Project

author: SABERS, Justice.

license: Public Domain

text:
    2005 SD 70
    Michael FRISKE, Jon Friske, Joel Friske, Lori Sikkink, Lisa Brandt, Mary L. Mack, and Michelle Sutton, Plaintiffs and Appellees, v. Timothy T. HOGAN, Defendant and Appellant.
    Nos. 23486, 23491.
    Supreme Court of South Dakota.
    Argued May 24, 2005.
    Decided June 8, 2005.
    Rehearing Denied June 29, 2005.

      Lee Schoenbeck of Schoenbeck Law Office Watertown, South Dakota, Attorney for plaintiffs and appellees.
    Gary J. Pashby, Christopher W. Madsen of Boyce, Greenfield, Pashby & Welk Sioux Falls, South Dakota, Attorneys for defendant and appellant.
   SABERS, Justice.

[¶ 1.] As the intended beneficiaries under their father’s will, the children of Doug Friske (Friske children) brought an action against attorney Timothy Hogan (Hogan) alleging that he committed malpractice by failing to assure that the property identified in their father’s will was titled in a way to give effect to the proposed disposition of that property. The circuit court granted partial summary judgment in favor of the Friske children. We affirm.

Facts

[¶ 2.] Doug and Jeanne Friske each had children from prior marriages. In 2002, they hired Hogan to draft their wills and power of attorney documents. Hogan drafted separate wills for each of them.

[¶ 3.] Doug’s will devised certain real and personal property to his children, subject to a life estate for his wife, Jeanne. Specifically, four parcels of real property located in Hamlin County, South Dakota, and the farm equipment were devised in equal shares to the Friske children, subject to Jeanne’s life estate. Doug also appointed Jeanne as the personal representative of his estate. Doug reviewed, approved and executed the will, on or about February 15, 2002.

[¶4.] Doug died on March 23, 2003. The Friske children learned that two of the parcels of real property were held in joint tenancy between Doug and Jeanne. Those parcels passed to Jeanne upon Doug’s death by operation of law and the provisions of Doug’s will regarding those parcels were of no effect.

[¶ 5.] The Friske children, as intended beneficiaries under their father’s will, brought suit against Hogan claiming that he committed malpractice by failing to assure that the property identified in Doug’s will was titled in a way to give effect to the proposed disposition of that property. They are seeking damages in the amount of the residual estate.

[¶ 6.] Hogan moved for summary judgment claiming that the strict privity rule prevents the Friske children from maintaining a malpractice action against him in the absence of an attorney-client relationship. The Friske children moved for partial summary judgment claiming that a third party exception to the strict privity rule exists and, if the requirements of the exception can be met, they may maintain the malpractice action against Hogan.

[¶ 7.] The Honorable Robert A. Miller, Retired Justice, acting by appointment as Circuit Court Judge, granted the Friske children’s motion. Hogan challenges the circuit court order via an intermediate appeal that nonclient beneficiaries under a will can maintain a malpractice action against the attorney who drafted the will and that the exception should be applied both prospectively and retroactively.

Standard of Review

[¶ 8.] “Summary judgment is proper where, 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 judgment as a matter of law.” Luther v. City of Winner, 2004 SD 1, ¶ 6, 674 N.W.2d 339, 343 (citing SDCL 15—656(c)). “Questions of law are reviewed de novo.” In re Estate of Martin, 2001 SD 123, ¶ 15, 635 N.W.2d 473, 476 (quoting Estate of O’Keefe, 1998 SD 92, ¶ 7, 583 N.W.2d 138, 139).

[¶ 9.] Whether nonclient beneficiaries under a will can maintain a malpractice action against the attorney who drafted the will and, if so, should the exception be applied both prospectively and retroactively.

A. Whether nonclient beneficiaries can maintain a malpractice action against the attorney who drafted the will

[¶ 10.] Generally, in order to maintain a malpractice action against a lawyer, “a plaintiff must first show that an attorney-client relationship existed between the lawyer and the plaintiff.” Chem-Age Industries, Inc. v. Glover, 2002 SD 122, ¶ 30, 652 N.W.2d 756, 769 (citing Ford v. Moore, 1996 SD 112, ¶ 7, 552 N.W.2d 850, 852). This is commonly referred to as the “strict privity rule.” Id.

[¶ 11.] The rationale behind maintaining the strict privity rule is as follows:

First, the rule preserves an attorney’s duty of loyalty to and effective advocacy for the client. Second, adding responsibilities to nonclients creates the danger of conflicting duties. Third, once the privity rule is relaxed, the number of persons a lawyer might be accountable to could be limitless. Fourth, a relaxation of the strict privity rule would imperil attorney-client confidentiality.

Id. ¶ 31 (internal citations omitted). Hogan argues these public policy considerations require that the strict privity rule be preserved and this Court should decline to adopt a nonclient beneficiary exception.

[¶ 12.] We have previously noted that other jurisdictions have recognized an exception to the strict privity rule, “particularly in contract actions, but its scope sometimes extends to the area of will drafting and estate planning.” Id. ¶ 30 (citing Joan Teshima, Annotation, Attorney’s Liability, to One Other Than Immediate Client, for Negligence in Connection with Legal Duties, 61 A.L.R.4th 615 (1988)). The Restatement (Third) of the Law Governing Lawyers provides that a lawyer may owe a duty of care to non-clients when and to the extent that:

(a) the lawyer knows that a client intends as one of the primary objectives of the representation that the lawyer’s services benefit the non-client;
(b) such a duty would not significantly impair the lawyer’s performance of obligations to the client; and
(c) the absence of such a duty would make enforcement of those obligations to the client unlikely.

Restatement (Third) of the Law Governing Lawyers, § 51(3) (2004).

[¶ 13.] We have noted that an incidental benefit to a nonclient is not sufficient to invoke an exception to the strict privity rule. Chem-Age Industries, Inc., 2002 SD 122, ¶ 34, 652 N.W.2d at 771. To establish a duty owed by an attorney to a nonclient, the nonclient “must allege and prove that the intent of the client to benefit the nonclient was a direct purpose of the transaction or relationship.” Id. (quoting Flaherty v. Weinberg, 303 Md. 116, 492 A.2d 618, 625 (1985)). Therefore, “the test for third party recovery is whether the intent to benefit actually existed, not whether there could have been an intent to benefit the third party.” Id. (quoting Flaherty, 492 A.2d at 625).

[¶ 14.] In Schreiner v. Scoville, the Supreme Court of Iowa allowed for a limited exception to the strict privity rule noting that “[t]his trend is particularly evident in cases involving claims against lawyers accused of preparing testamentary instruments that are invalid or in some other way frustrate the stated testamentary intent of the deceased.” 410 N.W.2d 679, 681 (Iowa 1987). The Iowa court ultimately concluded that “a lawyer owes a duty of care to the direct, intended, and specifically identifiable beneficiaries of the testator as expressed in-the testator’s testamentary instruments.” Id. at 682.

[¶ 15.] Here, the Friske children are identifiable beneficiaries under Doug’s will and one of the primary objectives of Hogan’s representation was to benefit them. Under these circumstances, Hogan owed a duty of care to the Friske children. This duty of care did not significantly impair or compromise Hogan’s ability to perform the obligations that he owed to his client, Doug. In fact, the duty that Hogan owed to Doug and his children is, at least in part, the same. That is, for purposes of our review of a summary judgment, Hogan may owe them a duty to ensure that the testamentary documents he drafted would devise the identified property in accordance with Doug’s wishes.

[¶ 16.] Although we are not prepared at this point to adopt Restatement (Third) of the Law Governing Lawyers, § 51(3) because it goes beyond the facts of this case, we approve the more limited holding from the Schreiner case and adopt this exception to the strict privity rule.

[¶ 17.] In summary, Hogan knew that Doug intended as the primary objective that the services benefit the nonclients, such a duty would not significantly impair Hogan’s performance of his obligations to Doug, and the absence of such a duty would make enforcement of those obligations unlikely. Under this exception to the strict privity rule, nonclient beneficiaries, such as the Friske children, may maintain a malpractice action against the attorney who drafted the testamentary instrument.

B. Whether the exception should be applied both prospectively and retroactively

[¶ 18.] Hogan argues that the decision should only be applied prospectively. Hogan asserts that this is necessary in order to provide notice to all attorneys of their “expanded scope of duty.”

[¶ 19.] “[T]he Court ‘has inherent power to apply its decisions prospectively or retrospectively.’ ” Burgard v. Benedictine Living Communities, 2004 SD 58, ¶ 9, 680 N.W.2d 296, 299 (quoting State v. One 1966 Pontiac Auto., 270 N.W.2d 362, 365 (S.D.1978)). “Traditionally, the general rule in civil cases is that unless a court declared that its decision was to have only prospective effect, the decision would have both prospective and retroactive effect.” Id. This “arises from the theory that the judiciary does not make law, but rather interprets it.” Id.

[¶ 20.] We have held that:

We have adopted the factors promulgated by the United States Supreme Court for determining whether a decision will have only prospective application. Those factors are:
First, the decision to be applied non-retroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied or by deciding an issue of first impression whose resolution was not clearly foreshadowed. Second, it has been stressed that “we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” Finally, we have weighed the inequity imposed by retroactive application, for “[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the injustice or hardship” by a holding of nonretroactivity.

Id. ¶ 10 (citing Brown v. John Morrell & Co., 511 N.W.2d 277, 278 (S.D.1994)) (emphasis in the original).

[¶21.] This is not a new principle of law in that it was “clearly foreshadowed” in Chemr-Age Industries. Cherny-Age Industries sets forth the body of law, notes that its scope “sometimes extends to the area of will drafting and estate planning” and concludes that the principle was not adopted in that case because the “plaintiffs have brought forth insufficient evidence to invoke it here.” Chem-Age Industries, 2002 SD 122, ¶¶ 30, 35, 652 N.W.2d at 769-71. Based on this, the trial court noted in its Order that this Court has indicated a “willingness to consider the existence of a third party exception to the strict privity rule.”

[¶ 22.] As to the second consideration stated above, Hogan argues that only prospective application is warranted because “from the Court’s ruling forward attorneys would be advised of their expanded scope of duty, in contrast to Hogan who did not have any notice that the Court would recognize such an exception.” However, there is no substantial discussion in the brief weighing the merits and demerits with respect to the prior history of the rale to limit it to prospective only and we decline to do so.

[¶ 23.] The final consideration involves weighing “the inequity imposed by retroactive application” and also favors applying both prospective and retroactive as the general rule. Refusal to apply the decision retroactively would deny them the inheritance intended by their father. However, the burden created by retroactive application of the rule is the same or similar burden Hogan bore when he agreed to provide legal services to Doug.

[¶ 24.] Based on the above, we recognize an exception to the strict privity rule and the Friske children may pursue a malpractice action against Hogan in an attempt to recover damages to the extent that their remainder interest was diminished due to the negligence, if any, of Hogan.

[¶ 25.] We affirm.

[¶ 26.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

      . Doug's will provides in part:
      I give and devise the following real property and all farm machinery I have .a[n] interest in at the time of my death to my children, MICHAEL FRISKE, LORI SIKKINK, LISA BRANDT, MARY L. MACK, MICHELLE SUTTON, JON FRISKE, JOEL FRISKE and JORDAN FRISKE, share and share alike, subject, however, to a life estate in and to all the below named described real property which I hereby give and devise to my wife, JEANNE M. FRISKE, if she survives me, in all farm machinery I may own at the time of my death and in the following real estate property:
      The Northwest [Quarter (NW1/4)] of Section Eighteen (18), Township One Hundred Fifteen (115) North in Range Fifty-One (51) West of the Fifth P.M., Hamlin County, South Dakota
      The Southwest [Quarter (SW1/4)] of Section Seven (7), Township One Hundred Fifteen (115) North in Range Fifty-One (51) West of the Fifth P.M., Hamlin County, South Dakota
      The South Half (S1/2) of the Southwest Quarter (SW1/4) of Section Twenty-Five (25), Township One Hundred Fifteen (115) North in Range Fifty-Two (52) West of the Fifth P.M., Hamlin County, South Dakota The East One Hundred Acres (El00) of the North One-Half (Nl/2) of Section Thirty One (31), Township One Hundred Fifteen (115) North in Range Fifty-Two (52) West of the Fifth P.M., Hamlin County, South Dakota.
      It is noted that Jordan Friske is not a party plaintiff to this action.

      . In 1989, Doug and Jeanne executed a warranty deed creating a joint tenancy with right of survivorship in the following property:
      The Southwest Quarter (SW1/4) of Section Seven (7), and the Northwest Quarter (NW1/4) of Section Eighteen (18), all in Township One Hundred Fifteen (115) North, Range Fifty-One (51) West of the Fifth P.M.

      . In the comments to § 51(3), it is further explained that:
      When a lawyer knows Q that a client intends a lawyer's services to benefit a third person who is not a client, allowing the nonclient to recover from the lawyer for negligence in performing those services may promote the lawyer’s loyal and effective pursuit of the client’s objectives. The nonclient, moreover, may be the only person likely to enforce the lawyer’s duty to the client, for example because the client has died.
      A rionclient’s claim under Subsection (3) is recognized only when doing so will both implement the client's intent and serve to fulfill the lawyer's obligations to the client without impairing performance of those obligations in the circumstances of the representation. A duty to a third person hence exists only when the client intends to benefit the third person as one of the primary objectives of the representation O-

        Id. cmt. f (emphasis added).

      . We recognize that the personal representative of an estate could bring an action for the estate against the attorney for malpractice. However, in this instance, it would be cumbersome as the personal representative of the estate is Jeanne, who is the surviving joint tenant of the property.


author: SABERS, Justice. MEIERHENRY, Justice

text:
    2005 SD 72
    HERTZ MOTEL and Marjorie LaFave, Plaintiffs and Appellees, v. ROSS SIGNS and O’Neill Neon Company, Defendant and Appellant.
    No. 23381.
    Supreme Court of South Dakota.
    Considered on Briefs on Feb. 15, 2005.
    Decided June 8, 2005.

      Karen A. Leonard, Shawn M. Nichols of Cadwell, Sanford, Deibert & Garry, LLP, Sioux Falls, South Dakota, Attorneys for plaintiffs.
    David A. Gerdes, Christina L. Fischer of May, Adam, Gerdes and Thompson, LLP, Pierre, South Dakota, Attorneys for defendant.
   SABERS, Justice.

[¶ 1.] Joe Ross (Ross) was hired by Marjorie LaFave (LaFave), the owner and operator of the Hertz Motel located in Bonesteel, South Dakota, to remove and reinstall the motel’s neon lighting. Four days after Ross reinstalled the neon lighting, the motel was damaged by fire. La-Fave filed suit against Ross alleging negligence and the trial court granted LaFave’s motion for summary judgment. Ross appeals and we reverse and remand for trial.

Facts

[¶ 2.] The Hertz Motel was built in approximately 1953. In 1972, LaFave and her late husband purchased the motel. At the time the motel was purchased, it was equipped with neon lighting that illuminated the front of the motel. Neon border tubes outlining the building’s roof line were connected to the soffit area of the front side of the motel and on the north and south ends of the motel. In addition, the motel’s “No Vacancy” and “Hertz Motel” signs were both illuminated with neon.

[¶ 3.] In July of 1999, the motel was damaged by a hail storm. The motel’s roof needed to be re-shingled and a portion of the siding needed to be replaced. In the spring of 2000, LaFave hired Greg Hausman (Hausman), a local contractor, to make the roof and siding repairs. Both LaFave and Hausman agreed that the neon tubing needed to be removed so that it would not be damaged while the repairs were being made. LaFave hired Ross, the owner of Ross Signs and O’Neill Sign Company (Ross Signs), to remove the neon and replace it when the work was completed. Ross removed the neon tubes in April of 2000. On May 4, 2000, after the repairs to the motel had been completed, he reinstalled the neon border tubes.

[¶ 4.] Four days later, on May 8, 2000, a fire occurred at the Hertz Motel. On the evening of the fire, LaFave had turned on the neon lights and then left for a few hours. She later returned to the motel and turned off the neon lights around 10:30 p.m., just before going to bed. Within a half hour to forty-five minutes after switching the lights off, the motel’s doorbell began to ring continuously. When LaFave investigated, she discovered smoke and flames coming from the roof of the motel. LaFave alerted the local fire department and exited the motel safely. The parties stipulated that the fire caused $106,689 damage to the motel.

[¶ 5.] LaFave brought this action against Ross asserting that his negligence in reinstalling the neon tubes caused the fire. LaFave filed a motion for summary judgment alleging that Ross’ work did not comply with the National Electric Code (NEC) and therefore he was negligent per se. Circuit Court Judge Kathleen Tran-dahl granted LaFave’s motion for summary judgment and awarded her $150,797 damages and prejudgment interest. Ross appeals claiming that there are genuine issues of material fact.

Standard of Review

[¶ 6.] In reviewing a trial court’s order granting a motion for summary judgment, “[w]e will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided.” Flugge v. Flugge, 2004 SD 76, ¶ 5, 681 N.W.2d 837, 839-40 (citing Luther v. City of Winner, 2004 SD 1, ¶ 6, 674 N.W.2d 339, 343). “We view all reasonable inferences drawn from the facts in the light most favorable to the non-moving party.” Id. “Questions of law are reviewed de novo.” In re Estate of Martin, 2001 SD 123, ¶ 15, 635 N.W.2d 473, 476.

[¶ 7.] Whether the trial court erred in granting LaFave’s Motion for Summary Judgment.

[¶ 8.] The trial court found that Ross violated the NEC without lawful excuse and was negligent as a matter of law. On appeal, Ross argues that the NEC does not apply to him because he is not required to be a licensed electrician under State law. Ross also contends that proximate cause must exist between an alleged violation of a safety statute and the resulting injury or damage.

Applicability of the NEC

[¶ 9.] “[A]n unexcused violation of a statute enacted to promote safety constitutes negligence per se.” Fritz v. Howard Township, 1997 SD 122, ¶ 17, 570 N.W.2d 240, 243 (quoting Thompson v. Summers, 1997 SD 103, ¶ 16, 567 N.W.2d 387, 393). South Dakota has adopted the NEC. The purpose of the NEC is “the practical safeguarding of persons and property from hazards arising from the use of electricity.” The NEC has a specific section dedicated to neon lighting and the provisions of this section detail a number of electrical considerations specific to the art of neon lighting installation. These safety rules are intended to protect the general public from the improper installation of neon lighting systems.

[¶ 10.] LaFave alleges the neon lighting system of the Hertz Motel violates a number of NEC provisions. On appeal, Ross does not contest these alleged violations but asserts that the NEC is not intended to govern untrained persons such as himself, rather it sets the standard for engineers, electrical contractors and electricians. As authority, he cites SDCL 36-16-16(4), which provides that persons who replace lamps and connect portable electrical devices to suitable receptacles that have been permanently installed are not required to have an electrician’s license. Since Ross was only disconnecting and then reconnecting neon tubing that had been permanently installed many years prior to the incident, he argues that he was not required to hold an electrician’s license and therefore the NEC standards do not apply to his work.

[¶ 11.] Ross’ argument is contradicted by Dan Choudek (Choudek), a professional engineer and the president of a forensic electrical engineering consulting firm. Choudek testified that the NEC “applies to the end product or the work that’s done” and that it specifies “what the work product or end product should be” as opposed to specifying who can do the work. Furthermore, Pete Bruce (Bruce), who owns a sign business comparable to Ross Signs, testified that if the neon lighting installation is out of compliance with the NEC at the time of reinstallation, the installer must reinstall the tubes to comply with NEC standards.

[¶ 12.] Based on the above, the trial court did not err in holding that the NEC was enacted to protect the public from personal, injuries and property damage resulting from the-improper installation of neon lighting systems, that South Dakota has adopted the NEC, and that neon tube installers such as Ross are, not exempt from complying with the code. However, even if Ross’ actions constituted negligence per se, liability must depend upon negligence causing the fire and being the proximate cause of the damages.

Proximate Cause

[¶ 13.] “With ■ regard to the proximate cause issue, this court has recognized that the mere violation of a statute is insufficient to support an action for damages. Rather, a plaintiff must show that the violation of a statutory duty was the proximate cause of his injury to support a recovery in negligence.” Thompson, 1997 SD 103, ¶ 18, 567 N.W.2d at 394 (citing Serles v. Braun, 79 S.D. 456, 113 N.W.2d 216 (1962)).

[¶ 14.] Ross contends that there are genuine issues of material fact as to the proximate cause of the fire. Although Ross was the last person to work on the neon tubing before the fire, he argues that over the motel’s many years of existence one can only imagine the number of repairs that have been made to the neon lighting system. Rick Schmitz (Schmitz), an electrician from Bonesteel, testified that he had performed electrical work on the motel’s neon lighting system on a number of different occasions prior to the fire. On one particular occasion that occurred prior to 1996, Schmitz was hired by the LaFaves to correct a problem with electrical arcing that was occurring between the neon tube wiring and the metal soffits. This problem apparently arose shortly after the metal soffits were installed on the motel. In an attempt to correct the arcing problem, Schmitz stated that he installed a porcelain insulator/bushing over the wiring at a point where it passed through the metal soffit. Schmitz also recalled that at the time the soffits were installed he suggested to the LaFave’s that the wiring for the neon lighting should be inspected. He further testified that on at least one other occasion he reinstalled a neon tube after it had been repaired. LaFave corroborated this by testifying that on several occasions when the neon tubes were damaged she would take them down herself, have them repaired, and then have Schmitz reinstall them.

[¶ 15.] In regard to the origin of the fire, Choudek, who has been recognized as an expert in the “field of fire origin and cause investigation” in various state and federal courts throughout the country, concluded that the fire originated in the area near the office door where wiring from one of the neon tubes passed through the metal soffit. He based this conclusion largely on evidence of electrical arcing and burn patterns.

[¶ 16.] Todd Archambeau (Archam-beau), an electrical contractor with over 29 years of experience as an electrician and 10 years of experience working with neon signs, provided expert testimony on Ross’s behalf. As to the origin of the fire, Ar-chambeau stated the following in his written report:

While I do not profess to be a fire cause and origin expert, my review of the photographs and text of Daniel Choudek’s report causes me to believe that the fire occurred in the attic near the transformer above the door to the motel office. It is my understanding that Mr. Ross, on the occasion that he reattached the neon tubing shortly before the fire, was never in the attic and had nothing to [do] with that wiring.

[¶ 17.] LaFave’s own expert witness also concluded that the electrical arcing occurred over a number of months, not just on the date of the fire. On this point, Choudek testified as follows:

Q: Based on your expertise in this field [], did that arcing occur alone on May 8th of 2000?
A: No.
Q: And why not?
A: No. In my opinion and based on testing that I’ve done in other cases, this is prolonged — this is prolonged arcing. This type of damage does not occur in a matter of hours or days or even weeks. We’re — we’re talking this type of damage occurring over months and months and months.
Q: And so-that’s something that preexisted prior to the reinstallation of the tubes by Mr. Ross on May #h of 2000?
A: Yes.

(emphasis added).

[¶ 18.] Choudek also testified that there was evidence of electrical arcing in other areas of the building where the wiring for the neon tubes passed through the metal soffit. In fact, one of the alleged NEC violations that Choudek identified involved the insulators/bushings that were used to prevent this type of arcing. In his report Choudek stated that “[t]he bushings %ised for this pass through of the soffitt [sic] panel were sections of broken tubing, these broken tubes are not listed for this application.” (emphasis in the original).

[¶ 19.] Ross asserts that even if LaFave’s contentions that his reinstallation of the neon lighting did not comply with the NEC are correct, there' are genuine issues of material fact regarding whether Ross’ work was the proximate cause of the fire. We agree. “Proximate or legal cause is a cause that produces a result in a natural and probable sequence and without which the result would not have occurred.” (emphasis added). First Premier Bank v. Kolcraft Enterprises, Inc., 2004 SD 92, ¶ 62, 686 N.W.2d 430, 454.

[¶ 20.] Ross did not originally install the Hertz Motel’s neon lighting system and there is no evidence that Ross performed any type of electrical work on the lighting system. He only performed removal, repair, and reinstallation of the neon tubing. While Ross was the last person to work on the neon tubing before the fire, Schmitz and LaFave both testified that on several occasions prior to the fire they had removed damaged neon tubes and later reinstalled the tubes themselves after being repaired. Furthermore, after Ross completed the reinstallation of the neon tubing on May 4, 2000, he turned the sign on to confirm that it would illuminate and he checked to make sure that it was not arcing. There is no evidence that LaFave experienced any problems with the neon lighting system until the fire occurred four days later.

[¶ 21.] Additionally, LaFave’s own expert witness concluded there was evidence of electrical arcing occurring over a prolonged period of time and that inappropriate insulators/bushings were used. Schmitz also testified he was aware of the problem with electrical arcing a number of years before the fire occurred and that on at least one occasion he attempted to correct the problem.

[¶ 22.] “Questions of proximate cause are for the jury in ‘all but the rarest of cases.’ ” Fritz, 1997 SD 122, ¶ 17, 570 N.W.2d at 244 (quoting Bauman v. Auch, 539 N.W.2d 320, 325 (S.D.1995)). In viewing the evidence in the light most favorable to Ross, there are genuine issues of material fact whether Ross correctly reinstalled the neon tubes and whether his actions were the proximate cause of the fire. In addition, there appears to be a genuine issue of material fact as to where the fire originated. Therefore, the trial court erred in granting LaFave’s Motion for Summary Judgment. We reverse and remand for trial.

[¶ 23.] GILBERTSON, Chief Justice, and KONENKAMP and ZINTER, Justices, concur.

[¶ 24.] MEIERHENRY, Justice, concurs in result.

MEIERHENRY, Justice

(concurring in result).

[¶ 25.] I concur in result. Based upon the evidence presented to the trial court and viewing the evidence in the light most favorable to Ross, there is a genuine issue of material fact as to whether Ross correctly reinstalled the neon tubes. Ross testified that he did, other evidence indicated he did not. If it is proven that Ross incorrectly installed the tubes, there remains a genuine issue of material fact as to whether the incorrectly installed tubes proximately caused the fire.

      . "Electric light, power, and heating installations in this state shall conform to the National Electric Code.” SD Admin R 20:44:22:01 (2004).

      . LaFave’s expert witness alleges that the motel’s neon lighting system violated nine separate provisions of the NEC.

      . In regard to the arcing, Schmitz testified as follows:
      Q: What was it that you did to try to correct the problem?
      A: Well, I know that we experimented with a plastic sleeve which didn't seem to work with it. It broke down again. I think we just went to a porcelain sleeve into [sic] it. That stopped it from arcing then.
      Q: What was the cause of the arcing?
      A: The metal soffit. The wire was arcing off to the metal soffit. Evidently, when they put the metal [soffits] up, they broke some of the glass insulators or broke the glass insulator, anyway, or it got shoved back up into it.

      . At the summary judgment hearing, Judge Trandahl rejected Archambeau’s testimony on the basis that there was not sufficient foundation for his expert opinion. However, this was not a court trial, and on summaiy judgment, all evidence must be taken in the light most favorable to the nonmoving party. Luther v. City of Winner, 2004 SD 1, ¶ 6, 674 N.W.2d 339, 343 ("We view all reasonable inferences drawn from the facts in the light most favorable to the non-moving party."). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202, 212 (1986) (stating "at the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial”); Continental Grain Co. v. Heritage Bank, 1996 SD 61, ¶ 16, 548 N.W.2d 507, 511 (stating that the credibility of witnesses must be determined by the fact finder, not on summary judgment).