text:
    2007 SD 112
    STATE of South Dakota, Plaintiff and Appellee, v. Kelly Dean BOYER, Defendant and Appellant.
    No. 24048.
    Supreme Court of South Dakota.
    Considered on Briefs March 19, 2007.
    Decided Oct. 31, 2007.

      Lawrence E. Long, Attorney General, Katie L. Hansen, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Mike C. Fink of Bjorkman & Fink, Bridgewater, South Dakota, Douglas N. Papendick of Stiles Law Firm, Mitchell, South Dakota, Attorneys for defendant and appellant.
   ZINTER, Justice.

[¶ 1.] Kelly Boyer appeals his conviction of murder in the second degree in the death of ninéteen-month-old B.P. We affirm.

[¶ 2.] Boyer and his girlfriend Jessica Jones lived together in Mt. Vernon, South Dakota. Two children resided in the home: their four-month-old daughter and nineteen-month-old B.P., Jones’ son from a previous relationship.

[¶ 3.] On October 29, 2004, Boyer’s seventeen-year-old cousin, M.S., spent the night at the home. The next morning, Jones left for work in Mitchell, South Dakota. Boyer stayed at home with M.S. and the two children. Later that day, Boyer and M.S. drove to Jones’ place of employment informing her that B.P. needed to go to the hospital because he had fallen down the stairs. They picked up Jones and drove B.P. to the hospital in Mitchell. B.P. was subsequently airlifted to Sioux Falls where he died three days later.

[¶ 4.] At trial, M.S. told a different story about B.P.’s injury. M.S. testified that Boyer invented the story about B.P. falling down the stairs, and the actual chain of events was as follows: B.P. had been crying on and off all day, wanting his mother. Boyer consequently wrapped B.P. in a blanket and put him in a “crunch position.” Boyer then began to move back and forth, shaking B.P. three or four times. After the shaking, Boyer threw B.P. on the floor and B.P. began to convulse. After the convulsions, B.P. stopped breathing and M.S. began to administer CPR. Although B.P. began to breathe, his breaths were short and choppy. M.S. then suggested they take B.P. to the hospital.

[¶ 5.] Boyer alleged that M.S., a prior juvenile offender, changed his story after the State’s lead investigator threatened that either M.S. or Boyer was going to get arrested. M.S. was in custody when he changed his story. M.S.’s juvenile records became the subject of a pretrial discovery request. After an in camera review, the trial court denied Boyer’s motion for discovery. Cross-examination was prohibited regarding M.S.’s juvenile record.

[¶ 6.] Boyer also had a criminal record. The trial court entered a pretrial order prohibiting testimony or reference to his prior criminal convictions. During the first morning of voir dire, however, it was revealed by the jury selection questionnaire that several prospective jurors had read an article published that day in the local newspaper referring to Boyer’s record. During an afternoon break, Boyer reminded the trial court of the morning’s discussions on the issue and he requested individual, sequestered voir dire. Counsel argued:

There were a lot [of jurors] who read this morning’s paper that contained that, and I’m not sure what was contained in previous articles. I’m not sure if they had a discussion about drugs. And when these people indicated they had read that article, of course, we went back in or we went up here to the bench and discussed the matter just informally, and I didn’t have an opportunity to explain what the article said. What I wanted to do was explore with each of those individually out of the hearing of the presence of the jury so we could explore what they read and how they felt about that. I can’t do that in front of all the other jurors.

[¶ 7.] Boyer’s counsel also asked if he could excuse a juror if the juror had read the article. The trial court indicated it would not grant a challenge for cause simply because a juror indicated that he or she had read the article. The court did, however, rule that Boyer could ask individual jurors if they read the article and could set it aside and not consider it in making a decision. Although the court indicated that this could be handled without sequestering the jurors, it also ruled:

What I just said in ruling does not mean that if there is something that comes up from individual questioning of some juror, prospective juror that would lead to some other reason other than the fact there was an article in the paper. I mean, we could go back into chambers but not just on the fact there was an article. But on questioning, if something does come up, we could explore it further in chambers.

After the break, Boyer asked the jurors whether they had knowledge of the newspaper article, and if so, whether they could put what they read aside. All indicated they could do so.

[¶ 8.] During the second day of trial, Boyer requested to re-voir dire some of the jurors who had already been passed for cause. Counsel argued:

[Djuring voir dire several of the potential jurors had indicated that they had read yesterday’s ... article^] I’m assuming that the jurors who had read this article read the entire article, and they have subsequently heard things that should be inadmissible and that they should not have heard. We did request that we voir dire each of the jurors who had read the article, and we would like to do that individually. I cannot for practical purposes voir dire them in front of the entire jury panel about drug offenses and how they feel about that because then it would inflame the entire panel.... At this point, most of [them] indicated — in fact I believe all of them have indicated that it will not affect their decision in the case, but that forces us to either leave them on the panel with that knowledge about the drug offense and the penitentiary time or use our peremptory.

The trial court denied Boyer’s request for a second voir dire.

[¶ 9.] The State utilized two expert witnesses regarding the death of B.P. The first witness, Dr. Brad Randall, the Minne-haha County Coroner, performed an autopsy on B.P. He opined that the chance of B.P.’s injuries being caused by a fall down a flight of stairs was extremely small. The State’s second expert, Dr. Lisa Sieczkow-ski, opined that R.P.’s injuries were inconsistent with a fall and were consistent with being shaken or thrown. Following a pretrial Daubert hearing, the trial court found that the opinions offered by the experts were reliable and of assistance to the jury.

[¶ 10.] Boyer appeals his conviction raising the following issues:

1. Whether the trial court erred in refusing to allow discovery and cross-examination on M.S.’s juvenile record.
2. Whether the trial court erred in refusing individual voir dire and challenges for cause regarding the newspaper article.
3. Whether the trial court erred in admitting Dr. Randall’s “manner of death” testimony and all of Dr. Siec-zkowski’s testimony.

1. Juvenile Records

[¶ 11.] Boyer claims that his Sixth Amendment right to confrontation was violated by the trial court’s refusal to allow discovery and cross-examination on M.S.’s juvenile record. See State v. Wounded Head, 305 N.W.2d 677, 681 (S.D.1981). We generally review these confrontation issues de novo. State v. Carothers, 2005 SD 16, ¶ 7, 692 N.W.2d 544, 546.

[¶ 12.] Boyer argues that the trial court erred in denying his request to use M.S.’s juvenile records for impeachment purposes. SDCL 19-14-15 (Rule 609(d)) controls the admission of juvenile records for impeachment. It permits admission in certain cases if the records would have been admissible to attack the credibility of an adult:

Evidence of juvenile adjudications is generally not admissible under § 19-14-12. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

SDCL 19-14-15.

[¶ 13.] In this case, the trial court found that there was no admissible evidence in the records that affected M.S.’s credibility. The trial court explained:

Attorney: [M.S.] apparently has a juvenile record. We had made a motion for discovery. The [c]ourt was going to make an in camera inspection of his juvenile record and any counseling records if there were any and determine whether or not we could cross examine for impeachment purposes, cross examine [M.S.] on some things that may be contained in that.
Court: His record is underage consumption and an escape.
Attorney: But his juvenile record may contain some items that could be used to impeach his credibility.
Court: There isn’t any.
Attorney: He was in Chamberlain Academy.
Court: That’s for the escape.
Attorney: Okay. That would be a felony if he were an adult, and we would like to be able to cross examine him—
Court: No.
Attorney: — to impeach his credibility. Court: No, not on that. He was supposed to show up for, I think, disposition or something. He didn’t show up. They called it escape. It doesn’t go to credibility.
Attorney: Our objection is noted.
Court: There wasn’t any counseling report or record or anything like that. He was for a time under the auspices of — I can’t think of the name of it. It’s a state program for people that would be [in] adjustment training centers. They found out he wasn’t eligible for that. As far as counseling or anything like that, there is no record of it.
Attorney: Well, primarily what we’re concerned about with regards to the counseling records are just basically what the counseling records were after this incident, if he talked to a counselor about it, and that’s what we would be most concerned about.
Court: That isn’t in anything I got. I just got his juvenile record from a probation officer.
Attorney: Okay. All right.

[¶ 14.] The trial court’s analysis was correct. M.S.’s juvenile record involved charges of underage consumption and escape. The underage consumption offense was not admissible because it would not have been admissible to attack the credibility of an adult. See SDCL 19-14-12. The “escape” arose from a mere failure to appear at a juvenile disposition as opposed to a traditional escape. Under these circumstances, we see no error in the trial court concluding that this conduct did not go to M.S.’s credibility.

[¶ 15.] This Court has recognized that this type of cross-examination on juvenile records not relating to possible biases, prejudices, or motivations to be untruthful in the case at hand does not implicate Sixth Amendment concerns:

The Supreme Court in Davis distinguished between a general attack on credibility, which it characterized as an effort “to infer that the witness’ character is such that he would be less likely than the average trustworthy citizen to be truthful in his testimony[,]” and a more particular attack on the witness’ credibility, “effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand.”

State v. Sprik, 520 N.W.2d 595, 600 (S.D.1994) (citing State v. Rough Surface, 440 N.W.2d 746, 752 (S.D.1989) (citing Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347, 353-54 (1974))). In Sprik, after an in camera review of a rape victim’s juvenile records, the trial court refused to allow cross examination on those records because: they did not relate to questions of bias or prejudice arising in the case in which the testimony was to be given; and the victim was subject to cross-examination on those other issues. Id. This Court affirmed, concluding that Sprik “failed to show that a reasonable jury probably would have had significantly different impression of [the juvenile’s] credibility if he had been allowed to use her juvenile records for impeachment purposes.” Id. at 600.

[¶ 16.] Although Boyer argues Sprik is distinguishable because the witness in that case was not threatened with criminal prosecution, that argument is misplaced. Even if the threat of arrest affected M.S.’s motive to testify truthfully, the trial court did not limit M.S.’s cross-examination on that matter. Therefore, like Sprik, Boyer failed to show error. He also failed to show prejudice; i.e., that a reasonable jury would have had a significantly different impression of M.S.’s credibility had Boyer been allowed to cross-examine M.S. on his juvenile record. Id. at 600.

2. Individual Voir Dire and Challenges for Cause

[¶ 17.] Boyer claims that the trial court erred in refusing individual, sequestered voir dire, and that he should have been allowed to challenge any juror who had read the newspaper article. We review the decision to allow individual voir dire under the abuse of discretion standard of review.

SDCL 23A-20-6 provides that “the court may in its discretion allow examination of one or more jurors apart from the other jurors.” There is, however, no “right” or “requirement” that prospective jurors be individually examined out of the presence of other jurors. Individual voir dire is only a “precautionary procedure which may be permitted, in the discretion of the trial court....”

State v. Owens, 2002 SD 42, ¶ 18, 643 N.W.2d 735, 744 (internal citations omitted).

[¶ 18.] In reviewing the question of individual voir dire, we first note that Boyer was allowed to inquire whether jurors could set the article aside and be impartial. We also note that individual voir dire of specific jurors was permitted if an issue arose. The trial court only prohibited individual, sequestered voir dire merely because a juror admitted to reading the newspaper article. We finally observe that Boyer admits that all of the jurors who read the article indicated that they could still act fairly and impartially. Under these circumstances, we see no abuse of discretion in the trial court’s rulings.

[¶ 19.] Regarding the question of challenges for cause, SDCL 23A-20-13.1(11) allows a challenge for cause “only if a prospective juror with knowledge of some or all of the material facts of the case also has ‘an unqualified opinion or belief as to the merits of the case.’ ” Owens, 2002 SD 42 at ¶ 19, 643 N.W.2d at 744. In this case, Boyer has failed to identify any juror that may have had an unqualified opinion as to the merits of his case. As previously mentioned, all of the jurors that read the article indicated that they could be impartial and would not consider the newspaper article in their deliberations. Boyer’s challenge for cause argument is without merit.

S. Expert Testimony

[¶ 20.] Boyer argues that Dr. Randall’s testimony regarding the manner of B.P.’s death was improperly admitted because he could not say to a reasonable degree of forensic certainty that B.P.’s injuries were the result of a throwing or shaking. Regarding Dr. Sieczkowski, Boyer argues that she lacked the qualifications necessary to testify and her testimony was not based on any forensic findings. Boyer finally argues that neither Dr. Randall’s nor Dr. Sieczkowski’s opinion assisted the trier of fact.

[¶ 21.] Admission of expert testimony is governed by SDCL 19-15-2 (Rule 702). The two preliminary determinations for a trial court concerning the admission of expert testimony are relevance and whether the testimony will assist the trier of fact. State v. Guthrie, 2001 SD 61, ¶ 32, 627 N.W.2d 401, 415. The proponent of the testimony must show that it meets these requirements. See id. at ¶ 34, 627 N.W.2d at 415-16. We review the trial court’s decision under the abuse of discretion standard. Id. at ¶ 30, 627 N.W.2d at 414-15 (internal citations omitted).

Dr. Randall

[¶ 22.] The issue for the jury was whether B.P.’s injuries were either accidental from falling down the stairs or the subject of homicide from being thrown to the floor. Dr. Randall is a licensed and board certified forensic pathologist who performed B.P.’s autopsy. Regarding B.P.’s manner of death, he opined that the likelihood B.P.’s injuries occurred as a result of falling down a flight of stairs was extremely small. Dr. Randall’s opinion was certainly relevant and of assistance in determining whether B.P.’s injuries were accidental or intentional.

[¶ 23.] His opinion was also reliable. The trial court found that Dr. Randall’s methodology was “the same methodology employed by doctors on a daily basis,” and concluded that it was “reliable, subject to peer review, and widely aecept[ed].” With respect to sufficient forensic/medical certainty, Dr. Randall testified that his opinion was based on his experience as a forensic pathologist, i.e., that statistically speaking, the likelihood of these injuries resulting from a fall down the stairs was extremely unlikely. He also indicated that his opinion was based on a reasonable degree of medical certainty.

Q: Doctor, did you also form an opinion to a reasonable degree of medical certainty as to the manner of [B.P. ’s] death?
A. Yes, I did.
Q. And how did you classify that?
A. I classified the manner of death as homicide....
Q. And why did you conclude that?
A. The conclusion was based on my interview with the law enforcement officers that were investigating the death and in conjunction with the autopsy findings that suggested that natural disease certainly was not an option in this case nor was suicide an option in this case and that the circumstances surrounding the death were by far more consistent with homicide versus accident.

(Emphasis added.) Although Dr. Randall considered extrinsic information in reaching his opinion, he further explained that receiving extrinsic evidence was widely accepted in the medical field:

Q. And it’s common for doctors to ask people who saw an injury take place what happened there. I mean, they need to find out from witnesses or if the individual person is able to speak; correct? ...
A. Yes, it’s an integral part. It’s called history taking. It’s an extremely important part of what any physician does on the care of a patient.
Q. And you certainly did that before describing a manner of death opinion, did you not?
A. Yes, I did.

[¶ 24.] Based on all of his testimony, we conclude that Dr. Randall’s testimony was based upon a reasonable degree of forensic certainty because it was based upon a reasonable degree of medical certainty and it was accepted in his practice of forensic pathology.

Dr. Sieczkowski

[¶ 25.] Dr. Sieezkowski’s testimony was limited to whether a fall down a flight of stairs and whether being shaken or thrown were consistent with B.P.’s injuries. She concluded that B.P.’s “injuries [were] not consistent with a fall down stairs; [t]hat [B.P.] ’s injuries were not accidental; [and][t]hat [B.P.j’s injuries [were] consistent with either being shaken or thrown.” Boyer argues that Dr. Siec-zkowski should not have been allowed to testify because: she was not qualified; and her opinions were not based upon any forensic findings or science. He contends her opinions were subjective and were not expressed to a reasonable degree of forensic certainty.

[¶ 26.] In its findings, the trial court found: “(1) Dr. Lisa Sieczkowski received her M.D. from the University of Nebraska, School of Medicine in 2000; (2) She is a licensed and Board Certified Pediatrician; [and] (3) She is a member of the Suspected Child Abuse and Neglect (SCAN) Team.” The trial court did not abuse its discretion in concluding that Dr. Sieczkowski was qualified to testify.

[¶ 27.] Boyer, however, also argues that Dr. Sieezkowski’s opinions were subjective and were not based upon any forensic findings, science, or reasonable forensic certainty. This argument also fails. First, the trial court specifically found, “[t]he methodology employed by Dr. Sieczkowski in arriving at her conclusions and opinions is the same methodology employed by doctors on a daily basis.” Second, her opinions were supported by statistics, and Boyer did not show any contrary evidence suggesting that this type of evidence was unreliable. Third, Dr. Sieczkowski based her opinion on her experience, her review of the literature, and her review of the evidence (which included reviewing B.P.’s medical records). The trial court finally found that her methodology was reliable, subject to peer review, and widely accepted. This record does not suggest her opinions were subjective and not based upon a reasonable degree of medical/forensic certainty.

[¶ 28.] The record further suggests that like Dr. Randall, Dr. Sieezkowski’s opinions were of assistance to the jury. As previously noted, the medical experts informed the jury of the types of injuries that were consistent with being thrown and the types of injuries that were consistent with falling down stairs. Like Dr. Randall, Dr. Sieezkowski’s opinions were of assistance in determining this fact necessary to reach a verdict on homicide.

[¶ 29.] We finally note that neither expert usurped the function of the jury by testifying that B.P. actually died as a result of being shaken or thrown down. Nor did the experts opine whether they thought Boyer was guilty. Although “[o]pinions merely telling a jury what result to reach are impermissible as intrusive, notwithstanding the repeal of the ultimate issue rule,” Guthrie, 2001 SD 61 at ¶ 33, 627 N.W.2d at 415 (citations omitted), neither doctor so opined in this case. For all of the foregoing reasons, Boyer failed to show that the trial court abused its discretion in admitting the experts’ opinions.

[¶ 30.] Affirmed.

[¶ 31.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and MEIERHENRY, Justices, concur.

      . The article reported:
      Boyer was arrested on a felony drug charge and other misdemeanor offenses that occurred at the Mount Vernon residence where [B.P.] was injured. Those drug charges were dismissed and Boyer — who was on probation at the time of the incident for a felony theft that occurred in 2001— was taken to the state penitentiary in early December to serve out his three-year prison sentence.

      . This statute provides:
      For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or the accused and the crime:
      (1) Was punishable by death or imprisonment in excess of one year under the law under which he was convicted; or
      (2) Involved dishonesty or false statement, regardless of the punishment.
      SDCL 19-14-12.

      . Boyer also relies on State v. Volk, 331 N.W.2d 67 (S.D.1983). He argues that under Volk, juvenile records must always be available for cross-examination when the information is admissible and discoverable. However, Boyer's argument is expressly premised on the records first being admissible. In this case, M.S.'s juvenile records were not admissible. Therefore, Volk is inapposite.

      . SDCL 19-15-2 provides:
      If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.


source: Caselaw Access Project

author: MEIERHENRY, Justice.

license: Public Domain

text:
    2007 SD 116
    Jeanna SCHAFER, as Guardian Ad Litem of T.F. and T.F., Plaintiff and Appellant, v. SHOPKO STORES, INC., a foreign Corporation, Garry Freier, and Avriel Hertz, Defendants and Appellees.
    No. 24436.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 1, 2007.
    Decided Nov. 7, 2007.

      Patrick T. Pardy of Mumford, Protsch and Pardy, Howard, South Dakota; Gary W. Schumacher of Wilkinson & Wilkinson, DeSmet, South Dakota, Attorneys for plaintiff and appellant.
    Edwin E. Evans, Mitchell A. Peterson of Davenport, Evans, Hurwitz & Smith L.L.P., Sioux Falls, South Dakota, Attorneys for defendants and appellees.
   MEIERHENRY, Justice.

[¶ 1.] Jeanna Schafer, as Guardian Ad Litem of T.F. and T.F. (Schafer), filed an action against Shopko Stores, Inc. (Shop-ko) for damages under SDCL 34-20C, the Drug Dealer Liability Act (DDLA). Shop-ko filled two valid prescriptions for morphine sulphate, a Schedule II controlled drug, for Tully Knigge (Knigge). Knigge sent Shane Feistner (Feistner) to pick up his prescriptions. Shopko gave the filled prescriptions to Feistner. Feistner consumed some of the morphine pills and died of a drug overdose. Schafer sued Shopko claiming that Shopko was liable under the provisions of the DDLA. The circuit court granted summary judgment in favor of Shopko. Schafer appeals. We affirm.

FACTS

[¶ 2.] Knigge is a person with disabilities and chronic pain, who is often unable to travel to have his prescriptions filled. On July 22, 2004, Knigge had Feistner fill two morphine sulphate prescriptions. Knigge gave Feistner his prescriptions and a signed blank check payable to Shopko. Knigge frequently had his prescriptions filled at Shopko by others. Shopko filled the prescriptions according to the prescription order.

[¶ 3.] Feistner, with Knigge’s knowledge and consent, consumed some of Knigge’s morphine before and after delivering the prescriptions to Knigge. Feist-ner also consumed a potentially toxic amount of alprazolam (Xanax) either on July 22nd or in the early morning hours of July 23rd. Feistner did not obtain the Xanax from Knigge. Feistner died as a result of asphyxiation from aspirating the contents of his stomach on July 23rd.

[¶ 4.] Schafer filed an action alleging that Shopko was liable for damages under SDCL 34-20C-2, the DDLA. Schafer claimed that Shopko had “participat[ed] in the illegal drug market” by dispensing the controlled drug to one other than Knigge or a member of his household. Schafer relied on the definition of “ultimate user” as used in SDCL 22-42-1 and 34-20B-1(21). “Ultimate user” as used in the statutes is defined as “a person who lawfully possesses a controlled drug or substance for personal use or for the use of a member of that person’s household.... ” Schafer argued that in dispensing the prescription to Feistner, Shopko did not dispense the drug to the “ultimate user,” — Knigge or a member of his household — and was thus liable under the DDLA. Shopko, on the other hand, pointed to SDCL 36 — 11— 2(7), which allows a pharmacist to dispense a prescription drug order “to a patient or a patient’s agent[.]” Shopko argued that since the pharmacist legally dispensed the drug to Feistner who was Knigge’s agent, it could not be hable under the DDLA. Schafer claims that the circuit court erred by granting summary judgment in favor of Shopko.

STANDARD OF REVIEW

[¶ 5.] Summary judgment is authorized “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.” SDCL 15 — 6—56(c)(3). “[Summary judgment will only be affirmed if there are no genuine issues of material fact and the legal questions have been decided correctly ... No deference is afforded the circuit court’s conclusions of law.” King v. Landguth, 2007 SD 2, ¶ 8, 726 N.W.2d 603, 607 (citations omitted). “Questions of law such as statutory interpretation are reviewed by the Court de novo.” Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611.

ANALYSIS

[¶ 6.] The issue before this Court is whether a pharmacy that dispenses a validly prescribed Schedule II drug to an authorized agent of a user can be held liable under the DDLA for the agent’s consumption of the drug. Based on the language of the relevant statutes, we conclude that the Legislature did not intend for a pharmacist to be held liable under these circumstances.

[¶ 7.] We have said that legislative “intent must be determined from the statute as a whole, as well as enactments relating to the same subject.” Moss v. Guttormson, 1996 SD 76, ¶ 10, 551 N.W.2d 14, 17 (citing U.S. West Communications, Inc. v. Public Util. Comm’n, 505 N.W.2d 115, 122-23 (S.D.1993) (citations omitted)). “There are instances when it is necessary to look beyond the express language of a statute in determining legislative intent. Most notably ... if confining ourselves to the express language would produce an absurd result.” MGA Ins. Co., Inc. v. Goodsell, 2005 SD 118, ¶ 17, 707 N.W.2d 483, 487 (citations omitted). “We presume that the Legislature intended no absurd or unreasonable result.” Moeller v. Weber, 2004 SD 110, ¶ 46, 689 N.W.2d 1, 16. “[W]here statutes appear to conflict, it is our responsibility to give reasonable construction to both, and if possible, to give effect to all provisions under consideration, construing them together to make them ‘harmonious and workable.’ ” Wiersma v. Maple Leaf Farms, 1996 SD 16, ¶ 4, 543 N.W.2d 787, 789 (citations omitted). “Furthermore, ‘[w]e should not adopt an interpretation of a statute that renders the statute meaningless when the Legislature obviously passed it for a reason.’ ” Zubke v. Melrose Tp., 2007 SD 43, ¶ 14, 731 N.W.2d 918, 922.

[¶ 8.] Under the DDLA, “[a]ny person who knowingly participates in the illegal drug market within this state is liable for civil damages ...” SDCL 34-20C-2. South Dakota adopted most of the provisions of the model DDLA, with only minor modifications. The purpose of the DDLA is to relax causation requirements to prove negligence because the common law effectively barred family members of drug users from filing suit against illegal drug dealers. See, e.g., SC Code of Laws 44-54-20 (stating purpose of DDLA is to “establish a cause of action against drug dealers for damages”) and 44-54-40(B)(2) (in order to recover damages a person need only prove “a person knowingly participated in the marketing of illegal controlled substances at any time” during which a person used the same type of illegal drugs in the same geographical area). There is no evidence that the Legislature adopted the DDLA for any purpose other than to impose civil liability on illegal drug dealers. South Dakota DDLA provides third parties, and in limited circumstances drug users, harmed by the use of illegal drugs a civil remedy against those who knowingly distribute illegal drugs. SDCL 34-20C-5.

[¶ 9.] In this case, for liability to attach under the DDLA, Schafer would have to show that the Shopko pharmacist “participate[d] in the illegal drug market.” SDCL 34 — 20C—5(1). Schafer relies on the definition of the term “participate in the illegal drug market,” which includes distribution of an illegal drug. SDCL 34 — 20C—1 (9). “Illegal drug” for purposes of the DDLA is defined as “a controlled drug or substance or marijuana whose distribution is a violation of state law.” SDCL 34-20C-l(2). Schafer claims that the pharmacist violated state law by dispensing the controlled drug to Feistner rather than to Knigge or a member of Knigge’s household. To support this interpretation, Schafer relies on criminal statutes which Schafer claims limit a pharmacist to dispensing controlled drugs only to the “ultimate user.” SDCL 22-42-2.1. The criminal statute provides:

No person other than a practitioner who is not a pharmacist, may dispense a controlled drug or substance included in Schedule II to an ultimate user without the written prescription of a practitioner who is not a pharmacist. No prescription for a Schedule II drug or substance shall be refilled. A violation of this statute is a Class 4 felony.

Id. “Ultimate user” is defined as “a person who lawfully possesses a controlled drug or substance for that person’s own use or for the use of a member of that person’s household ...” SDCL 22-42-1(11); SDCL 34-20B-l(21).

[¶ 10.] The fallacy of Schafer’s argument is her reliance on SDCL 22-42-2.1, which she claims requires a pharmacist to dispense controlled drugs only to the ultimate user or a member of his household. The plain meaning of the statutory language does not support her interpretation. In fact, the statutory provision expressly does not apply to pharmacists under these circumstances. The statute allows a licensed practitioner of the medical profession, who is not a pharmacist, to dispense drugs without a prescription to the ultimate user.

[¶ 11.] On the other hand, the law specifically allows pharmacists to dispense drugs with a prescription to a patient’s agent. The statute defines “dispense” as follows:

(7) “Dispense” or “Dispensing,” the preparation and delivery of a drug to a patient or a patient’s agent pursuant to a prescription drug order in a suitable container with appropriate labeling for subsequent administration to or use by a patient....

SDCL 36-11-2(7) (emphasis added). The law prohibits a pharmacist from distributing Schedule I and II controlled drugs or substances without a prescription. SDCL 34-20B-46. The law makes it a felony “for any person who is a [registered pharmacist] knowingly to distribute a controlled drug or substance classified in Schedules I or II, in the course of his legitimate business, except pursuant to an order form as required by this chapter" SDCL 34-20B-46 (emphasis added). Additionally, pharmacists are prohibited from refilling Schedule II drug or substance prescriptions. SDCL 22-42-2.1. However, no provision of the DDLA provides, as Schafer argues, that a pharmacist may only legally dispense a controlled drug to an “ultimate user” and not an agent.

[¶ 12.] It is undisputed that Shopko had a valid prescription order form for the controlled drug that it filled and delivered to Knigge’s agent, Feistner. Clearly, Shopko met the requirements of the law. To interpret and apply the law as Schafer urges would make Shopko liable for a legal act. Such an interpretation is strained and would cause an absurd result. Because we hold that Shopko’s conduct did not fall within the purview of the DDLA, we do not reach Schafer’s other issues.

[¶ 13.] Affirmed.

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

      . The DDLA provides a civil penalty for those harmed by illegal drug use under a market participant liability theory or a direct liability theory. SDCL 34-20C et seq. South Dakota adopted the Model Drug Dealer Liability Act promulgated by the American Legislative Exchange Council. Arkansas, California, Colorado, Florida, Georgia, Hawaii, Illinois, Indiana, Louisiana, Michigan, New Hampshire, Oklahoma, South Carolina and Utah have also adopted the model legislation. Ark. Code Ann. 16-124-101-112; Cal. Health & Safety Code 11700—11717; Colo. Rev. Stat. 13-21-601 to -614; Fla. Stat. Ann. 772.12; OCGA 51-1-46; Haw. Rev. Stat. Ann. 663D; 740 Ill. Comp. Stat. Ann. N. 57/1-25; Ind. Code Ann. 34-1-70; L.A. Rev. Stat. Ann. 9:2800.61-.76; Mich. Comp. Laws Ann. 691.1601 — .1619; N.H. Stat. tit. XXX, ch. 318-C et seq.; Okla. Stat. Ann. tit. 63, 2-421 to -435; S.C. Code of Laws 44-54-10 to -140; Utah Code Ann. 58-37e-l — 14.

      . Nicholas Reiter, Note: Dollars for Victims of a “Victimless" Crime: A Defense of the Drug Dealer Liability Acts, 15 J. L. & Pol’y 1329, 1338 n. 40-41 (2007) (“fifteen jurisdictions have enacted drug dealer liability statutes, each jurisdiction closely follows the provisions set forth in the Model [DDLA], which has been adopted by the American Legislative Exchange Council”).

      . Joel W. Barr, Let the Drug Dealer Beware: Market-Share Liability in Michigan for the Injuries Caused by the Illegal Drug Market, 32 Val. U.L. Rev. 139 (1997).


author: KONENKAMP, Justice.

text:
    2007 SD 114
    STATE of South Dakota, Plaintiff and Appellee, v. Michael James PLENTY HORSE, Defendant and Appellant.
    No. 24370.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 27, 2007.
    Decided Nov. 7, 2007.
    Lawrence E. Long, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, SD, for plaintiff and appellee.

      Traci Smith, Office of the Minnehaha, County Public Defender, Sioux Falls, SD, Attorneys for defendant and appellant.
   KONENKAMP, Justice.

[¶ 1.] Under South Dakota law, the crime of indecent exposure prohibits the public exposure of one’s genitals for the purpose of arousing sexual desire in oneself or another. Defendant was convicted of this offense after he was surprised by a security guard while alone in a public building attempting to have sexual intercourse with a mannequin. Although counsel for defendant offers several theories on why this conviction should be reversed, the only meritorious question before us is whether defendant’s conduct fell within the purview of the statute. We conclude that because the indecent exposure statute criminalizes sexual gratification by displaying or showing one’s genitals in public, and the evidence shows that defendant did not seek to gratify himself or arouse someone else by the act of publicly exposing his genitals, the conviction cannot stand.

Background

[¶ 2.] In the late afternoon of November 14, 2005, defendant was walking to the YMCA in Sioux Falls, South Dakota. On his way, he stopped by the Washington Pavilion and ventured upstairs. Shortly afterwards, he was surprised by a security guard in the Alumni Room, a small third-floor space containing high school mementos and photos honoring students who had attended Washington High School. There were no other patrons in the area at the time. The guard found defendant lying on top of a mannequin, with its band uniform partially removed. It appeared that defendant was having simulated intercourse. Defendant was clothed, but his pants were partially down, and a wad of paper was in his hand. Defendant rolled off the mannequin, turned away, and began adjusting his pants. Defendant was told to remain where he was, and the police were called. The guard had walked upon this scene because he noticed that the door to the room was closed. This door, according to the guard, was to be left open and, to his knowledge, had only been closed three times in the three years he had worked there. When the guard opened the door and walked in the room, the lights were off.

[¶ 3.] When questioned about what he was doing, defendant, visibly ashamed, declined to talk about it. A low functioning nineteen-year old, defendant has been classified as a high school sophomore for the past three years. His reading comprehension remains at the level of a fourteen-year old; his math skills, that of an eight-year old; and his written language, that of a thirteen-year old. With more questioning, he finally admitted that because he had not seen his girlfriend in a year his needs had not been met. He worried about what would be told to his mother.

[¶ 4.] Defendant was charged with indecent exposure under SDCL 22-24-1.2 (2005), a class one misdemeanor. A court trial was held before a magistrate, who found defendant guilty. He was granted a suspended imposition of sentence and placed on supervised probation for three years. With this conviction, he must register as a sex offender. SDCL 22-24B-1(11) (2005); SDCL 22-24B-2 (2005). His appeal in circuit court was affirmed. Defendant appeals to this Court, asserting that there was insufficient evidence to convict him of indecent exposure under the statute.

Standard of Review

[¶ 5.] “Our review of the sufficiency of the evidence is de novo.” State v. Tofani, 2006 SD 63, ¶ 35, 719 N.W.2d 391, 400 (citing State v. Disanto, 2004 SD 112, ¶ 14, 688 N.W.2d 201, 206). As we recently stated in Tofani:

“[A]ll of the evidence is to be considered in the light most favorable to the prosecution.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original). There must be substantial evidence to support the conviction. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), superseded on other grounds, Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987). The “inquiry does not require [an appellate] court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ ” Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2789, 61 L.Ed.2d 560 (emphasis in original) (quoting Woodby v. Immigration and Naturalization Serv., 385 U.S. 276, 282, 87 S.Ct. 483, 486, 17 L.Ed.2d 362 (1966)). “Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. Evidence is insufficient, and therefore not substantial, when no rational trier of fact could find guilt beyond a reasonable doubt. Id.

Id. In construing a statute, we attempt to ascertain its intent. Krukow v. S.D. Bd. of Pardons and Paroles, 2006 SD 46, ¶ 12, 716 N.W.2d 121, 124 (quoting State v. Barton, 2001 SD 52, ¶ 8, 625 N.W.2d 275, 278). The “ ‘intent must be determined from the statute as a whole, as well as enactments relating to the same subject.’” Id. (citations omitted).

Analysis and Decision

[¶ 6.] Conceding that having sex in public with a mannequin would likely offend people, defense counsel nonetheless contends that defendant did not “flash” or expose his genitals “in hopes of being observed, thereby gratifying himself sexually.” The offense of indecent exposure is defined in SDCL 22-24-1.2 (2005):

A person commits the crime of indecent exposure if, with the intent to arouse or gratify the sexual desire of any person, the person exposes his or her genitals in a public place under circumstances in which that person knows that person’s conduct is likely to annoy, offend, or alarm another person.

Clearly, the “with the intent to” language proclaims that indecent exposure should be defined as a specific intent crime. When a statute has language requiring a specific design or purpose for doing a prohibited act, such language usually creates a specific intent offense. State v. Schouten, 2005 SD 122, ¶ 16, 707 N.W.2d 820, 825-26; see also SDCL 22-1-2(1)(b).

[¶ 7.] Because this is a specific intent crime, the prosecution must link the exhibition of one’s genitals to the intent to seek sexual gratification by such public exposure. Thus, it must be proved that the offender exhibited or displayed his genitals with the intent of arousing himself or someone else. This is not how the circuit court and the magistrate court interpreted the statute. It appears that they examined each phrase in isolation rather than the statute as a whole to determine whether defendant had the requisite intent. This approach ignores the structure and purpose of the enactment. The statute was intended to criminalize the act of displaying or showing one’s genitals in public for sexual gratification.

[¶ 8.] South Dakota’s Pattern Jury Instructions accurately set forth the elements of the crime: (1) “The defendant exposed (his)(her) genitals in a public place;” (2) “The defendant did so under circumstances that (he)(she) knew that (his)(her) conduct was likely to (annoy) (offend) (alarm) another person;” and (3) “The defendant did so with the intent to arouse or gratify the sexual desire of any person.” South Dakota Pattern Jury Instruction 3-3-30. To be guilty of the offense, first, defendant must have exposed himself in public. Second, defendant must have exposed himself in public under circumstances he knew would likely offend, annoy, or alarm another person. Third, defendant must have exposed himself in public with “the intent to arouse or gratify the sexual desire of any person.” Id.

[¶ 9.] Although defendant had the observable intent to sexually gratify himself, no evidence demonstrated that he intended to arouse or gratify his (or someone else’s) sexual desire by the act of exposing his genitals in public. On the contrary, while he was alone and the lights were off, defendant closed the door and went over by a desk. It was late in the afternoon, near to closing time, and no other patrons were in the area. Nothing establishes that his conduct was done with the specific intent to generate sexual arousal or gratification by the act of publicly exposing, i.e., displaying or offering to the public view, his genitals. Therefore, defendant’s act, lewd though it may have been, does not fall within the purview of the indecent exposure statute.

[¶ 10.] Reversed.

[¶ 11.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and MEIERHENRY, Justices, concur.

      . In 1998, the Legislature repealed a previous version of the statute and enacted two statutes in replacement. See S.L. 1998, ch. 136, sec. 1; see also SDCL 22-24-1,1 (2005); SDCL 22-24-1.2 (2005). Before 1998, the statute provided,
      Any person who intentionally and with an immoral purpose exposes his or her genitalia in any place where there is present any person, other than the spouse of the expo-ser, to be offended or annoyed thereby, is guilty of a Class 1 misdemeanor.
      SDCL 22-24-1 (1997) (repealed S.L. 1998, ch. 136, sec. 1).

      . “Expose” originates from the Latin word “exponere,” which includes the following definitions: (1) to put outside, cast out; and, more particular to the context of this offense, (2) to put on view, display, show. Cassell's Latin English Dictionary 86 (MacMillan 1987). In Black’s Law Dictionary, expose is defined as, “To show publicly; to display; to offer to the public view 579 (6th ed. 1990).

      . Although we do not cite previously unapproved pattern jury instructions as authority, we note that the South Dakota Pattern Jury Committee correctly interprets this statute. See South Dakota Pattern Jury Instruction 3-3-30. The comments to the South Dakota Pattern Jury Instructions state that along with the indecent exposure instruction, the jury should also receive the instruction on specific intent. Id.

      .Defense counsel on appeal suggests that defendant could have been more properly charged with public indecency, under SDCL 22-24-1.1 (2005). That statute provides:
      A person commits the crime of public indecency if the person, with an immoral purpose, exposes his or her anus or genitals in a public place where another may be present who will be offended or alarmed by the person’s act. A violation of this section is a Class 2 misdemeanor.

        Id.


author: GILBERTSON, Chief Justice.

text:
    2007 SD 115
    Jeffrey STONE, Plaintiff and Appellant, v. VON EYE FARMS, Daniel Von Eye, Sr., Individually, and Jamie Von Eye, Individually, Defendants and Appellees, Daniel Von Eye, Jr., Individually, Defendant.
    No. 24460.
    Supreme Court of South Dakota.
    Considered on Briefs on Aug. 27, 2007.
    Decided Nov. 7, 2007.

      Laura Koob, Brian L. Radke of Radke Law Offices, P.C., Sioux Falls, South Dakota, Attorneys for plaintiff and appellant.
    Timothy A. Clausen of Klass Law Firm, Sioux City, Iowa, Attorneys for defendants and appellees.
   GILBERTSON, Chief Justice.

[¶ 1.] On July 19, 2006, in the South Dakota Third Judicial Circuit, Jeffrey Stone (Stone) filed a complaint against Von Eye Farms, Daniel Von Eye, Sr., Daniel Von Eye, Jr., and Jamie Von Eye (collectively “Von Eyes”) arising from personal injuries that he received in a farm accident. On September 1, 2006, Von Eyes filed a motion for summary judgment. Stone amended his complaint on November 15, 2006. On December 18, 2006, the circuit court heard the motion. On January 18, 2007, the circuit court issued its letter opinion granting Von Eyes’ motion for summary judgment. Judgment for Von Eyes was entered on January 25, 2007. We reverse and remand.

FACTS AND PROCEDURE

[¶ 2.] Von Eyes are engaged in family farming operations in eastern South Dakota. At the time of the incident giving rise to this claim, Stone had been employed by Von Eyes as a farm hand for no less than one year. On November 25, 2005, Stone began work at round 9:30 a.m. At around 12:00 a.m. on November 26, 2005, Stone was returning from the fields and planning to go home after the day’s harvesting activities. Stone caught a ride in from the field with Jim Carroll (Carroll). Carroll was operating a Case-IH 7140 tractor and pulling a grain wagon loaded with corn. Carroll was heading to a site where the harvested corn was being transferred from grain wagons to semi-tractor-trailers.

[¶ 3.] When Carroll arrived at the transfer site around midnight, he pulled along side a semi-tractor-trailer in preparation to begin offloading corn. Stone climbed down off the tractor and spoke to Casey Kneebone (Kneebone), who was driving a semi-tractor-trailer rig. After briefly speaking to Stone, Kneebone climbed up the steps of the tractor to talk to Carroll. Unbeknownst to Carroll, Stone remained on the ground standing behind the left, front tire of the Case-IH tractor. Carroll looked behind the tractor and then began to back up, knocking Stone to the ground and driving over his ankle and leg. Carroll had moved the tractor about three feet when he heard Stone yell, but by that time Stone had suffered severe physical injury.

[¶ 4.] Stone’s July 19, 2006 complaint alleged that Carroll was negligent in the operation of the Case-IH tractor; that said negligence was proximate cause of Stone’s injury; and that Von Eyes were liable on a theory of respondeat superior. After Von Eyes moved for summary judgment, Stone amended his complaint on November 15, 2006, alleging that Von Eyes were negligent by not providing a safe work place. Stone’s allegation was based on claims that Von Eyes’ employees had not received proper training, were not properly supervised, and were required to work under unreasonable working conditions.

[¶ 5.] On December 18, 2006, the circuit court heard Von Eyes’ motion and thereafter supplemental materials were filed by the parties. On January 18, 2007, the circuit court issued its letter opinion granting summary judgment for Von Eyes.

[¶ 6.] Stone raises three issues on appeal:

1. Whether the circuit court erred by not submitting to the jury the question of whether Von Eyes were negligent in the nature of the workplace they provided for their employees.
2. Whether the circuit court erred by granting summary judgment based on assumption of the risk, barring recovery for Stone as a matter of law.
3. Whether the circuit court erred by granting summary judgment based on contributory negligence, barring recovery for Stone as a matter of law.

STANDARD OF REVIEW

Summary judgment is properly granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. We will affirm the trial courts grant or denial of a motion for summary judgment when no genuine issues of material fact exist, and the legal questions have been correctly decided. We review the circuit courts conclusions of law under the de novo standard. However, we view all evidence and favorable inferences from that evidence in a light most favorable to the nonmoving party.

A-G-E Corp. v. State, 2006 SD 66, ¶ 13, 719 N.W.2d 780, 785 (internal citations and quotations omitted). “Summary judgment is proper in negligence cases if no duty exists as a matter of law.” Bordeaux v. Shannon County Schools, 2005 SD 117, ¶ 11, 707 N.W.2d 123, 126 (citation omitted).

Negligence is the breach of a duty owed to another, the proximate cause of which results in an injury. This Court has repeatedly stated that questions of negligence, contributory negligence and assumption of the risk are for the jury in all but the rarest of cases so long as there is evidence to support the issues. It is only when reasonable men can draw but one conclusion from facts and inferences that they become a matter of law and this rarely occurs.

Pierce v. City of Belle Fourche, 2001 SD 41, ¶ 22, 624 N.W.2d 353, 356-57 (alteration and internal citations and quotations omitted).

ANALYSIS AND DECISION

[¶ 7.] 1. Whether the circuit court erred by not submitting to the jury the question of whether Yon Eyes were negligent in the nature of the workplace they provided for their employees.

[¶ 8.] Stone alleged that Von Eyes had a duty to provide a reasonably safe place to work and that they breached this duty by not providing adequate training and supervision for their employees. Stone further alleged that Von Eyes maintained an unsafe working environment by overworking their employees. Von Eyes deny Stone’s allegations. The basis underlying their respective positions is contained within the pleadings, answers, admissions, affidavits and discovery contained in the record.

[¶ 9.] Employers have a nondel-egable duty to provide their employees with reasonably safe places to work. Smith v. Community Co-op. Ass’n of Murdo, 87 S.D. 440, 444, 209 N.W.2d 891, 893 (1973) (citing Stoner v. Eggers, 77 S.D. 395, 92 N.W.2d 528 (1958)). Inherent to this duty is an obligation that employers provide employees with proper training and supervision. Id. at 444-45, 209 N.W.2d at 893 (citing Restatement, Second, § 492 et seq.; 56 CJS Master and Servant § 186).

[¶ 10.] Von Eyes submitted that they were not unlike other family farming operations in South Dakota with respect to the amount and kind of training they provided for their employees. According to Von Eyes, on-the-job training was provided; the extent of which was determined by the complexity of the tasks and or the equipment used therein. Von Eyes further contended that Carroll was an experienced farm laborer accustomed to operating many different types of farm machinery including various kinds of tractors, and specifically the Case-IH 7140.

[¶ 11.] Von Eyes stated that like other farming operations, they did not supervise their employees at all times. Rather, they stated that they had customarily hired competent employees, who after training, were expected to operate equipment in a safe manner without the need for immediate supervision. Nevertheless, they indicated that employees were closely scrutinized when the task required immediate supervision.

[¶ 12.] Stone alleged that on-the-job training and the supervision provided by Von Eyes was less than adequate. He also alleged that no safety training had been provided and that he was given minimal training in the tasks to which he was assigned and for the equipment employed in carrying out the tasks. In addition, he averred that for post-training, Von Eyes provided virtually no supervision, including on the day that he was injured.

[¶ 13.] Stone argues that the inadequacy of the training and supervision that Von Eyes provided their employees was evident in the manner in which Carroll operated the Case-IH tractor at the time of Stone’s injury. Stone avers that the fact Carroll claims to have hollered a warning prior to backing up the tractor is an acknowledgment that Carroll was aware that Stone was near the tractor when he began to back up. Stone argues the fact Carroll then only looked rearward before backing up and moved the tractor while Kneebone was still standing on its steps belies the notion that Carroll was properly trained to operate the tractor. Stone contends that had Carroll received proper training he would have looked in all directions before backing up and that he never would have moved the tractor while another person stood on its steps, allegedly obscuring Carroll’s view.

[¶ 14.] Stone also alleged that Von Eyes maintained an unsafe work environment by overworking their employees. Stone contends that he had worked a 15-hour day just prior to the accident and that that was consistent with the amount of time he had put in seven days per week during the two months preceding the accident and was further consistent with the amount of time that other employees, including Carroll were working. However, Von Eyes countered these allegations by submitting that while it is customary to work long hours during harvest, no employee was required to work such long hours as to become a safety risk. Further, Von Eyes also stated that employees were advised to take breaks or go home if they became overly tired and that time off to rest was allowed as requested or necessary. In any case, Von Eyes contended that the long hours worked by their employees was not a contributing factor to the accident since Carroll stated that he neither fell asleep at that time nor was inattentive.

[¶ 15.] Von Eyes, as a matter of law, had a duty to Stone to provide a reasonably safe workplace with adequate training and supervision. We conclude that the evidence that was submitted to the circuit court and the inferences drawn therefrom, when viewed in a light most favorable to Stone, reveal genuine issues of material fact as to whether Von Eyes breached this duty. Accordingly, evidence and testimony relevant to that question should have been held over for trial and submitted to a jury for determination.

[¶ 16.] 2. Whether the circuit court erred by granting summary judgment based on assumption of the risk, barring recovery for Stone as a matter of law.

[¶ 17.] In their answer filed August 21, 2006, Von Eyes alternatively interposed the affirmative defense of assumption of the risk. In granting Von Eyes’ motion for summary judgment, the circuit court concluded that Stone’s conduct constituted assumption of the risk as a matter of law. The circuit court cited our rationale in Goepfert v. Filler, 1997 SD 56, 563 N.W.2d 140 as applicable to the instant case.

[¶ 18.] The facts of Goepfert, are distinguishable from the instant case in that they involved a wrongful death case that arose when a passenger in a moving car, of his own accord, stepped out of the vehicle while it was in motion, thereafter striking his head on the pavement, which ultimately led to his demise. 1997 SD 56, ¶¶ 2-3, 563 N.W.2d at 141. Defendant moved for summary judgment, which the circuit court granted concluding that the decedent had assumed the risk as a matter of law therein negating any duty owed him by the defendant operator of the car. Id. ¶ 3, 563 N.W.2d at 141.

[¶ 19.] A defendant asserting assumption of the risk must establish three elements: 1) that the plaintiff had actual or constructive knowledge of the risk; 2) that the plaintiff appreciated the character of the risk; and 3) that the plaintiff voluntarily accepted the risk, given the time knowledge, and experience to make an intelligent choice. Id. ¶ 6, 563 N.W.2d at 142. The failure to establish any one of the three elements negates the defense. Id. (citing Westover v. East River Elec. Power Co-op., Inc., 488 N.W.2d 892, 901 (S.D.1992)).

Actual or Constructive Knowledge of the Risk

[¶ 20.] Given the facts in Goepfert, we held that “exercising ordinary common sense, reasonable minds [could not] differ on the jeopardy involved in stepping from a moving vehicle.” Id. ¶ 8, 563 N.W.2d at 143 (citations omitted). A similar determination cannot be arrived at so intuitively from the facts of the instant case. Weighing the circumstances of this case and inferences drawn therefrom in a light most favorable to Stone, it is reasonable to conclude that if he did not hear Carrolls warning, he may never have considered the possibility that the tractor would move while Kneebone remained hanging on outside the cab. Consequently, an issue of material fact remains as to Stones knowledge, or lack thereof, of the tractors imminent movement.

Appreciated the Character of the Risk

[¶ 21.] We need not consider this element as Von Eye has failed in their burden on the first element. However, we note that the same requirement of a showing of the specificity of the appreciation of the nature of the risk that applies to the first element also applies to the risks character. Westover, 488 N.W.2d at 901.

Voluntary Acceptance of the Risk

[¶ 22.] Once again, there is no necessity that we consider this element. Nevertheless, when it can be shown that the plaintiff had reasonable alternatives to the injury causing conduct, but subjected himself to the risk of harm notwithstanding, this element is established. Goepfert, 1997 SD 56, ¶ 12, 563 N.W.2d at 144 (citations omitted). Acceptance is not voluntary if anothers tortious conduct leaves no reasonable alternative to avert harm or to exercise or protect a right or privilege, which another has no right to deny. Id. (citation omitted).

[¶ 23.] In Goepfert, we concluded that neither the driver’s conduct nor that of any of the other passengers was negligent and therefore played no role in the decedent’s decision to exit a moving car. Id. Since, the decedent had a reasonable alternative in that he could have stayed seated in the car until it came to a halt, we held that he voluntarily accepted the risk.

[¶ 24.] In the instant ease, the alternative to Stone remaining in the path of the moving tractor tire was to have stepped out of the way. However, given the suddenness in which the tractor began to move, a fact question remains with respect to Stone’s ability to consider that alternative, prior to being run over.

[1125.] We find that there were questions of material fact that properly should have been considered by a jury, with respect to the issues of Von Eyes’ negligence and the affirmative defense of assumption of the risk. Therefore, we conclude that the circuit court erred in granting summary judgment.

[¶ 26.] We hereby reverse and remand for further proceedings consistent with this opinion.

[¶ 27.] SAJBERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.

      . Carroll claims that he also hollered twice that he was going to back up. However, Stone denies hearing Carroll’s alleged warning.

      . Since there are issues of material fact for determination on remand, regarding whether Von Eyes were negligent, we do not reach on appeal Issue 3' — whether Stone’s claim is barred by contributory negligence as a matter of law. However, we think it is again noteworthy to point out the distinction between assumption of the risk and contributory negligence is often confused. Reflecting on this distinction in Ray v. Downes:

      "Risk is intrinsic to some acts.” Goepfert, 1997 SD 56, ¶ 8, 563 N.W.2d at 143. However this intrinsic risk is not unlimited. Certainly, Ray put himself in harm’s way by standing in a position to be run over. He frankly admitted as much. Nonetheless, he did not consent to relieve the driver of his subsequent duty to act with reasonable care. In the words of Prosser, "This is a distinction which has baffled a great many law students, some judges, and unhappily a few very learned legal writers.” Prosser & Keeton, The Law of Torts § 68, 485.

        It is here that there is the greatest misapprehension and confusion as to assumption of risk, and its most frequent misapplication. It is not true that in any case where the plaintiff voluntarily encounters a known danger he necessarily consents to any future negligence of the defendant. A pedestrian who walks across the street in the middle of a block, through a stream of traffic traveling at excessive speed, cannot by any stretch of the imagination be found to consent that the drivers shall not use care to watch for him and avoid running him down. On the contrary, he is insisting that they shall. This is contributory negligence pure and simple; it is not assumption of the risk. And if A leaves an automobile stopped at night on the traveled portion of the highway, and his passenger remains sitting in it, it can readily be found that there is consent to the prior negligence of A, whose control over the risk has terminated, but not to the subsequent negligence of B, who thereafter runs into the car from the rear.
      1998 SD 40, ¶ 13, 576 N.W.2d 896, 899-900.


author: STREIT, Justice.

text:
    NORTHWEST INVESTMENT CORP., Appellant, v. Emmett Lee WALLACE, William R. Harvey and Helen I. Harvey, Appellees.
    No. 05-0340.
    Supreme Court of Iowa.
    July 13, 2007.
    Rehearing Denied Nov. 19, 2007.

      John F. Lorentzen of Nyemaster, Goode, West, Hansell & O’Brien, P.C., Des Moines, for appellant.
    Terry M. Giebelstein of Lane & Waterman, LLP, Davenport, for appellee Emmett Lee Wallace.
    Steven H. Jacobs of Betty, Neuman & McMahon, LLP, Davenport, for appellees Harveys.
   STREIT, Justice.

“This is a story about control.” Minority shareholders who were required to redeem their shares after a reverse stock split refused to accept the corporation’s offer to buy back their shares. They complained the offer did not include the additional amount a buyer would theoretically pay to own a controlling interest in the corporation. The district court held the proper valuation of the minority shareholders’ stock included a control premium. On appeal, we must determine (1) whether Iowa’s statute requiring a corporation in a reverse stock split to pay the shareholders “fair value” for their shares permits the addition of a control premium; and if so (2) whether there is substantial evidence to support the addition of a control premium in this case. We find Iowa’s statutory definition of “fair value” implicitly requires the shares to be valued on a marketable, control basis. Because the minority shareholders presented credible evidence the corporation could obtain a significant control premium in the event of a sale, we affirm.

I. Facts and Prior Proceedings.

Dr. Emmett Lee Wallace, William R. Harvey, and Helen I. Harvey (collectively the “minority shareholders”) once owned stock in River Cities Investment Co. Wallace owned approximately 7.1% of the outstanding shares (35,196) and the Harveys owned approximately 1.5% (7,291). The balance of the outstanding shares was owned by Northwest Investment Corp.

River Cities’ principal asset was the indirect ownership of stock in Northwest Bank and Trust Company (“bank”). River Cities owned 100% of the Northwest Bank Holding Company, which in turn owned 84% of the bank. In addition, Northwest Bank Holding Company owned other assets, including a $2,400,000 note receivable and $455,000 in deferred tax debits.

In September 2003, at a special meeting, River Cities’ shareholders adopted by resolution the first amendment to the Amended and Restated Articles of Incorporation of River Cities. The amendment provided the aggregate number of shares the corporation may issue is limited to 200 shares of common stock. This action reduced the aggregate number of outstanding shares which had previously been 496,507. As a result of this amendment, the minority shareholders became owners of fractional shares of new stock. The amendment provided no fractional shares would be issued; any fractional shares created would be acquired for cash. The amendment effectively forced the minority shareholders to sell their shares back to River Cities.

River Cities’ board of directors determined the fair value of the old stock was $33.23 per share immediately before the reverse stock split. This figure was based on an appraisal prepared by Wayne Brown of Clifton Gunderson LLP.

Shortly after the special meeting, River Cities merged into Northwest Investment (the majority shareholder). Northwest Investment then timely paid the minority shareholders $33.23 per share of old stock plus interest from the date of the resolution adopting the first amendment. It also gave the minority shareholders notice of their appraisal rights as required by Iowa Code section 490.1324 (2003).

The minority shareholders made a timely demand for further payment under Iowa Code section 490.1326. They demanded $64 per share for their old stock. This demand was based on an appraisal prepared by Richard F. Maroney, Jr. of Austin Associates, LLC. The shareholders timely tendered the certificates representing their shares of the old stock for transfer to Northwest Investment.

Northwest Investment received the minority shareholders’ demand for additional payment but disagreed with the minority shareholders’ valuation. Consequently, Northwest Investment brought this action in February 2004. See Iowa Code § 490.1330 (if the corporation refuses shareholder’s demand for additional payment, then it must commence a proceeding within sixty days after receiving payment demand and petition the court to determine fair value).

After initiating this action, Northwest Investment’s board of directors requested a second appraisal from Clifton Gunder-son. Ronald E. Nielsen of Clifton Gunder-son completed his appraisal report in August 2004. He concluded the fair value of the old stock immediately prior to the reverse stock split was $48 per share.

Based on Nielsen’s appraisal, Northwest Investment paid the minority shareholders an additional $14.77 per share, which is the difference between $33.23 and $48. Northwest Investment also paid interest to the minority shareholders, which is required by law. Northwest Investment made these payments to the minority shareholders without prejudice to their right to appraisal in this action. The minority shareholders refused to accept $48 per share as full payment for their old stock in River Cities.

The case was tried to the district court. The district court found Maroney’s testimony more credible and adopted his opinion that the fair value of the old stock was $64. The district court denied both parties’ requests for attorney fees.

Northwest Investment appealed. On appeal, Northwest Investment argues (1) the district court erred by adopting Maro-ney’s appraisal because he included a premium for control in his valuation and (2) the district court erred by not awarding Northwest Investment attorney fees and expert witness expenses.

II. Scope of Review.

Actions to determine the value of stock pursuant to section 490.1330 are at law. Sieg Co. v. Kelly (Sieg II), 568 N.W.2d 794, 797 (Iowa 1997) (citing Sieg Co. v. Kelly (Sieg I), 512 N.W.2d 275, 278 (Iowa 1994)). Our review is for errors of law. Id. (citing Sieg I, 512 N.W.2d at 278). The district court’s findings of fact are binding on us if supported by substantial evidence. Id. (citing Iowa R.App. P. 14(f)(1) (now Rule 6.14(6)(a))).

Ill Merits.

A. Control Premium. The principal differences between the appraisers’ conclusions of value stem from their use of control premiums and Maroney’s use of guideline transactions involving sale-of-control data. Northwest argues Maroney’s inclusion of a control premium is unwarranted because Northwest Bank is a well-run, efficient bank. According to Northwest, a control premium is justified only if there is “substantial evidence of the inefficient use of assets of the company being appraised.” Northwest also claims Maroney’s “control premium” is really an impermissible award of “synergistic value.” Before addressing the evidence of this case, we must first determine whether the addition of a control premium is permissible under Iowa Code section 490.1301(4).

1. Fair value. Iowa Code chapter 490 gives a shareholder “appraisal rights” and the right to obtain “fair value” for his or her shares upon the occurrence of enumerated corporate action, including a reverse stock split. Iowa Code § 490.1302(l)(d). The corporation must commence an action to determine the fair value of the minority shareholder’s stock if the shareholder and corporation cannot agree on a price. Id. § 490.1330.

Under Iowa Code section 490.1301(4), “fair value” means:

the value of the corporation’s shares determined according to the following:
a. Immediately before the effectuation of the corporate action to which the shareholder objects.
b. Using customary and current valuation concepts and techniques generally employed for similar businesses in the context of the transaction requiring appraisal.
c. Without discounting for lack of marketability or minority status....
With respect to shares of a corporation that is a bank holding company as defined in section 524.1801, the factors identified in section 524.1406, subsection 3, paragraph “a”, shall also be considered in determining fair value.

We have repeatedly stated there is no predominant, perfect formula for arriving at fair value. Sieg II, 568 N.W.2d at 798; Sec. State Bank v. Ziegeldorf, 554 N.W.2d 884, 888 (Iowa 1996); Sieg I, 512 N.W.2d at 278; see also Model Bus. Corp. Act § 13.01 cmt. 2, at 13-9 (2005) (stating subsection (b) “adopts the accepted view that different transactions and different contexts may warrant different valuation methodologies”). We have recognized three popular approaches to appraising stock: market value, investment value, and net asset value. Sieg I, 512 N.W.2d at 278 (citing Richardson v. Palmer Broad. Co., 353 N.W.2d 374, 378 (Iowa 1984)). “The usefulness of any particular approach depends on the facts and circumstances of each case.” Sieg II, 568 N.W.2d at 798 (citing Ziegeldorf, 554 N.W.2d at 889). Each method is “designed to independently produce the full measure of the fair value of the stock rather than a component of fair value.” Richardson, 353 N.W.2d at 378-79. Moreover, “[m]odern valuation methods will normally result in a range of values, not a particular single value.” Model Bus. Corp. Act § 13.01 cmt. 2, at 13-9. “The court should consider any relevant factor not inconsistent with the statutory definition of ‘fair value.’ ” Sieg II, 568 N.W.2d at 798. Factors to be considered include:

the rate of dividends paid, the security afforded that dividends will be regularly paid, the possibility that dividends will be increased or diminished, the size of the accumulated surplus applicable to the payment of dividends, the record of the corporation, its prospects for the future, the selling price of stocks of like character, the value of its assets, book values, market conditions, the reputation of the corporation, and all relevant factors that may influence the valuation.

Sieg I, 512 N.W.2d at 279 (citing Robbins v. Beatty, 246 Iowa 80, 91, 67 N.W.2d 12, 18 (1954)).

The Iowa legislature adopted the current definition of fair value in 2002. 2002 Iowa Acts ch. 1154, § 78. The definition is derived from the 1999 amendment to section 13.01(4) of the Model Business Corporation Act (“MBCA”). The 1999 amendment to section 13.01(4) expressly prohibits “discounting for lack of marketability or minority status.” Prior to the change, the MBCA’s definition was silent on whether such discounts were appropriate. Consequently, courts interpreting statutes based on the MBCA’s previous definition were split on the issue of discounts. Compare Atl. States Constr., Inc. v. Beavers, 169 Ga.App. 584, 314 S.E.2d 245, 250-51 (1984) (holding minority discount is permissible); Columbia Mgmt. Co. v. Wyss, 94 Or.App. 195, 765 P.2d 207, 213 (1988) (holding marketability discount is proper but a minority discount is inappropriate), with Hansen v. 75 Ranch Co., 288 Mont. 310, 957 P.2d 32, 41 (1998) (holding minority discount is not appropriate); Hogle v. Zinetics Med., Inc., 63 P.3d 80, 90-91 (Utah 2002) (holding discounts based on lack of marketability and lack of control are impermissible).

In comments accompanying the 1999 amendment, the MBCA states

valuation discounts for lack of marketability or minority status are inappropriate in most appraisal actions, both because most transactions that trigger appraisal rights affect the corporation as a whole and because such discounts give the majority the opportunity to take advantage of minority shareholders who have been forced against their will to accept the appraisal-triggering transaction.

Model Bus. Corp. Act § 13.01 cmt. 2, at 13-10.

Although six other states have adopted the MBCA’s current definition of fair value with respect to appraisal rights, no appellate court in these jurisdictions has been asked to determine whether “fair value” may include a control premium. For guidance we turn to the official comments following MBCA section 13.01. See Richardson, 353 N.W.2d at 376-77 (referring to an earlier official comment to the MBCA).

Subsection (c) prohibits discounting for lack of marketability or minority status. The official comment explains subsection (c) is “designed to adopt a more modern view that appraisal should generally award a shareholder his or her proportional interest in the corporation after valuing the corporation as a whole, rather than the value of the shareholder’s shares when valued alone.” Model Bus. Corp. Act § 13.01 cmt. 2, at 13-10 (emphasis added); see Cavalier Oil Corp. v. Harnett, 564 A.2d 1137, 1144 (Del.1989) (stating the corporation must be valued as an entity before determining the shareholder’s proportionate interest). If an appraiser is valuing the corporation as a whole, then a control premium is certainly proper. A control premium is the additional consideration an investor would pay over the value for a minority interest in order to own a controlling interest in the common stock of a company. Shannon P. Pratt, Valuing a Business: The Analysis and Appraisal of Closely Held Companies 349 (4th ed.2000) (quoting Control Premium Study, 4th quarter 1999 (Los Angeles: Applied Financial Information, LP, 1990), p. ii). “A controlling interest is considered to have greater value than a minority interest because of the purchaser’s ability to effect changes in the overall business structure and to influence business policies.” Id.

Our legislature made a policy decision when it adopted the current definition of “fair value.” By not allowing a discount for lack of marketability or minority status, the legislature implicitly required shares to be valued on a marketable, control interest basis. We therefore hold a control premium may be considered in determining fair value if supported by the evidence. See Rapid-Am. Corp. v. Harris, 603 A.2d 796, 804 (Del.1992) (holding the trial court improperly refused to add a control premium to publicly traded equity value of corporation’s shares for each of the corporation’s operating subsidiaries in determining valuation in an appraisal action); Borruso v. Commc’ns Telesystems Int’l, 753 A.2d 451, 457-58 (Del.Ch.1999) (adding thirty percent premium because comparable company analysis reflects inherent minority discount); In re 75,629 Shares of Common Stock of Trapp Family Lodge, Inc., 169 Vt. 82, 725 A.2d 927, 935 (1999) (thirty percent premium for control added to adjust for trading price of minority shares); Casey v. Brennan, 344 N.J.Super. 83, 780 A.2d 553, 571 (2001) (concluding “that in a valuation proceeding a control premium should be considered in order to reflect market realities”). We now turn to the dueling appraisals in this case.

2. Nielsen’s appraisal. Nielsen was Northwest Investment’s appraiser. He is a Certified Public Accountant and partner at Clifton Gunderson. He is also an Accredited Senior Appraiser. Nielsen primarily relied on an income approach in determining the value of the bank. An income approach assumes the value of the company is derived from the generation of income. In taking this approach, Nielsen employed a eapitalization-of-earnings method. Capitalization of earnings involves an estimation of the company’s ongoing net earnings and a determination of the risks associated with generating those earnings (capitalization rate).

Additionally, Nielsen used a market-based approach to valuing the bank. A market-based approach values a company with factors derived from comparable companies that are publicly traded. The particular method Nielsen employed was the guideline company method for price-to-book value. This method derives an estimated price-to-book multiple from the stock price of publicly traded guideline companies as compared to their book values. Nielsen applied the multiple to his opinion of the adjusted book value of the bank. To this figure, he added a 15% control premium. Nielsen reasoned the premium was necessary because the stock prices used in this method reflect a minority interest price.

To determine the final value of River Cities, Nielsen combined the two approaches. He gave 90% weight to the income method figure and 10% weight to the market-based method figure. Nielsen then “rolled up” his combined value into Northwest Bank Holding Company and ultimately River Cities, based on its 84% ownership of the bank. To this figure, Nielsen added the value of the other assets owned by Northwest Bank Holding Company. Nielsen then rolled up this net value into River Cities based on River Cities’ direct ownership of 100% of Northwest Bank Holding Company. Finally, he divided his conclusion, which valued River Cities as a whole, by the number of outstanding shares in River Cities and arrived at a value of $48 per share for the old stock.

3. Maroney’s appraisal. Maroney, who was hired by the minority shareholders, is a principal of Austin Associates, a bank consulting firm. He has a Master’s degree in Business Administration. Maro-ney used a combination of valuation methods in his appraisal of River Cities. Maro-ney used a discounted cash flow (“DCF”) method, which is a type of income approach valuation. The DCF method uses the same basic components of the capitalization-of-earnings method. In addition, it includes a projection of future value from net earnings and a residual value at the end of the projected period, which must be discounted to present value.

Maroney also utilized a market-based approach. He considered two types of guideline transactions: transactions of publicly traded stock and transactions involving the sale of financial companies to other companies or groups (i.e. sale of control). He created a priee-to-tangible book value ratio and a price-to-earnings multiple for each guideline type to determine River Cities’ value.

Through these methods Maroney arrived at a total of five different values for River Cities (one for the DCF method, two using guideline transactions of publicly traded stock, and two using guideline transactions for sale of control of financial institutions). For each of these values, Maroney divided by the number of outstanding shares of old stock (496,507).

Next, Maroney added a 40% control premium to three of the five values — the DCF value and the two values based on guideline transactions of publicly traded stock. At trial, Maroney defined control premium as the “amount another organization or another group of people would pay to get control — controlling interest in a financial institution or any company.” He explained the addition of a control premium is necessary to convert a “marketable, minority interest” value to a “marketable controlling interest” value. According to Maroney, the two values based on guideline transactions for sale of control of financial institutions do not require the addition of a control premium because control is already embedded in the values. To determine the appropriate control premium, Maroney reviewed bank and thrift sale transactions since 2001 (169 transactions). Maroney determined the percentage of the sale price representing control premium by comparing the announced sale price to the pre-announced stock price of the selling institution. The median control premium for all bank sales since 2001, using stock prices one month prior to the sale, was 41.2%. The median result for all thrift sales was 36.4%. Control premiums using the stock price three months prior to the sale were 52.1% for banks and 44.3% for thrifts. Maroney found the bank results more applicable to River Cities due to Northwest Bank’s strong commercial lending. Accordingly, he selected 40% to use for a control premium in valuing River Cities.

Maroney’s five values for a single share of old River Cities stock were:

Discounted Cash Flow with Control Premium $57.73
Guideline Transactions:
Publicly Traded Stocks with Control Premium
Price-to-Tangible Book Value Ratio $61.03
Price-to-Earnings Multiple $72.99
Sale of Control
Price-to-Tangible Book Value Ratio $61.36
Price-to-Earnings Multiple $69.52

To reach a final fair value determination, Maroney considered a simple average of the results ($64.53), the average of the three methods after averaging the two re-suits in each of the guideline approaches ($63.39), the average of the three results after excluding the high and low ($63.97) and the median value ($61.36). Maroney ultimately determined the fair value of River Cities’ stock was $64 per share.

The district court found Maroney’s appraisal more credible than Nielsen’s. The court noted Nielsen’s appraisal was significantly lower than recent appraisals done by Clifton Gunderson (Nielsen’s employer) for the bank’s employee stock option plan and the bank’s own reverse stock split. The court found these multiple inconsistent appraisals of substantially the same assets difficult, if not impossible, to reconcile. Second, the court found no rational basis for the percentage weighting given by Nielsen to the valuation methods he used. Finally, the court disagreed with Nielsen’s position that a well-run, high performing business, such as the bank, should either have no or very little control premium added to determine fair value. The district court adopted Maroney’s opinion that $64 was the fair value of the minority shareholders’ old stock. We must decide whether Maroney’s addition of a control premium was appropriate in this case.

4. Applied methods of valuation. On appeal, Northwest alleges Maroney made several errors in his fair value determination. Northwest contends well-run companies typically do not command a control premium. At trial, Nielsen testified a buyer is willing to pay a larger premium to gain control of a poorly-run company due to the ability to eliminate inefficiencies and increase profits. Maroney, on the other hand, testified a well-run company is just as likely to obtain a significant control premium. He stated:

I think the fact that a company is highly profitable most likely means that they are going to have more interest from more buyers and more competition for the company and I don’t find that to affect control premium at all.

The district court found Maroney more credible on this point, and we see no reason to disturb the court’s finding.

Next, Northwest contends Maroney should have placed greater emphasis on the income approach and less emphasis on the market-based approach. According to Northwest, “[w]hen financial data of the company being appraised is reliable, the principal method for determining fair value is the income approach.” Northwest argues “market-based valuation methods, which inherently reflect synergies, should be given little or no weight.”

However, Maroney testified he considered each of the five methods he used in this case to be valid and appropriate. He noted he preferred using a variety of methods because there is a degree of uncertainty with respect to the income approach, which is based on projections. Like the district court, we see no reason to overemphasize the income approach. The market approach to valuation provided helpful, additional evidence regarding the value of the bank and by extension River Cities. See Shannon Pratt, The Lawyer’s Business Valuation Handbook 105 (2000) (noting that while in theory the income approach is the dominant approach in business valuation, Revenue Ruling 59-60 and many investment bankers also put heavy emphasis on the market approach).

Northwest also argues it was error for Maroney to add a control premium to his income approach. In support of this contention, Northwest provides the following quote from a Delaware case:

The discounted cash flow method purports to represent the present value of [the corporation's cash flow. The calculation arguably may have left out a premium that normally accrues when shareholders sell a company. However, “the appraisal process is not intended to reconstruct a pro forma sale but to assume that the shareholder was willing to maintain his investment position, however slight, had the merger not occurred.” Plaintiff is not entitled to the proportionate sales value of [the corporation]. Plaintiff is entitled to the proportionate value of [the corporation] as a continuing shareholder. The discounted cash flow analysis, as employed in this case, fully reflects this value without need for an adjustment.

In re Radiology Assocs., Inc. Litig., 611 A.2d 485, 494 (Del.Ch.1991) (citations omitted). While this position may be the law in Delaware, we choose to follow the position of jurisdictions who determine fair value based on “what a willing buyer realistically would pay for the enterprise as a whole on the statutory valuation date.” BNE Mass. Corp. v. Sims, 32 Mass.App.Ct. 190, 588 N.E.2d 14, 19 (1992); see In re Valuation of Common Stock of McLoon Oil Co., 565 A.2d 997, 1004 (Me.1989) (stating the district court must determine “the best price a single buyer could reasonably be expected to pay for the firm as an entity” and then “prorate[] that value for the whole firm equally among all shares of its common stock”); Trapp Family Lodge, Inc., 725 A.2d at 931 (same); see also Barry M. Wertheimer, The Shareholders’ Appraisal Remedy and How Courts Determine Fair Value, 47 Duke L. J. 613, 654-55 (Feb.1998) (advocating third party sales value, i.e. the price at which the corporation as an entity could be sold to a third party in an arm’s length transaction, should be a factor to consider in determining “fair value”); 2 American Law Inst., Principles of Corporate Governance: Analysis and Recommendations § 7.22(c) (1994) (“[T]he court generally should give substantial weight to the highest realistic price that a willing, able, and fully informed buyer would pay for the corporation as an entity.”). To hold otherwise “would inevitably encourage corporate squeeze-outs.” McLoon Oil Co., 565 A.2d at 1005. Thus, we find nothing wrong with Maroney adding a control premium to his DCF valuation nor do we quarrel with his use of guideline transactions involving the sale of control. As Maroney’s research indicates, buyers are willing to pay a large premium when purchasing an entire financial institution as opposed to a minority interest. The minority shareholders are entitled to the proportionate share of the control premium River Cities likely would obtain if the corporation were for sale.

5. Synergy. Northwest Investment also complains Maroney’s control premium is inflated with synergistic value because the market data, upon which the premium is based, included corporate mergers. Synergistic value arises “when two assets are more valuable in combination than in isolation or, put otherwise, when two assets are more valuable when controlled by the same firm than when controlled by different firms.” John C. Coates IV, “Fair Value” as an Avoidable Rule of Corporate Law: Minority Discounts in Conflict Transactions, 147 U. Pa. L.Rev. 1251, 1275 (1999); see Union Ill. 1995 Inv. Ltd. P’ship v. Union Fin. Group, Ltd., 847 A.2d 340, 356 (Del.Ch.2004) (defining synergistic value as “the amount of any value that the selling company’s shareholders would receive because a buyer intends to operate the subject company, not as a stand-alone going concern, but as part of a larger enterprise, from which synergistic gains can be extracted”). Examples of synergies are “(1) reducing combined overhead by the consolidation of operations [and] (2) raising prices by reducing competition.” Pratt, Valuing a Business, at 346. Northwest Investment argues including synergy is impermissible because the fair value of the minority shareholders’ stock should be derived from the value of the bank as a stand-alone enterprise rather than the value of the bank if it were to merge with a larger enterprise.

Our statutory definition of “fair value” means “the value of the corporation’s shares ... immediately before the effectu-ation of the corporate action to which the shareholder objects.” Iowa Code § 490.1301(4)(a). We have previously said:

[T]he future opportunities for the company are certainly a consideration in setting the value of the company’s stock.... Thus, the relevant consideration is what prospects could reasonably have been anticipated as of the date of valuation, not what opportunities are actually realized subsequent to the corporate action.

Sieg II, 568 N.W.2d at 798.

The minority shareholders did not present any evidence that a merger is a reasonable prospect in the bank’s future or that valuation should be based on anything other than as a stand-alone going concern. See Ziegeldorf, 554 N.W.2d at 891. Nevertheless, there is nothing wrong with Maroney basing his opinion, in part, on the aggregations of actual sales data involving mergers and acquisitions. This evidence reflects the market place. While Maroney conceded synergistic value was likely embedded in his data, comparable sales transactions “are still the best empirical evidence generally available to quantify control premium.” Pratt, Valuing a Business, at 354. Moreover, at least one study suggests merger acquisitions do not command higher premiums in comparison to acquisitions where the corporation will continue to be operated as a stand alone company. Patrick A. Gaughan, Mergers, Acquisitions, and Corporate Restructurings 528 (3d ed.2002) (citing George R. Roach, “Control Premium and Strategic Mergers,” Business Valuation Review (June 1998), pp. 42-49) (explaining the Roach study of control premiums paid between 1992 and 1997 “failed to find any difference in the control premium for those deals in which the merging companies have the same or different Standard Industrial Classification (SIC codes)”); Pratt, Valuing a Business, at 351 (same); see Coates, 147 U. Pa. L.Rev. at 1331 (noting commentators “have widely varying intuitions about the significance of merger synergies”). Pratt, a leading authority in business valuation, simply cautions analysts to be cognizant of the possible inclusion of synergistic value in the underlying data when selecting and applying a control premium percentage. Pratt, Valuing a Business, at 360. Unfortunately, a more principled approach to eliminating synergy is not available because synergy is difficult, if not impossible, to quantify. See Agranoff v. Miller, 791 A.2d 880, 899 (Del.Ch.2001) (acknowledging the difficulty in eliminating synergy from control sales data and admitting the court’s “rough approach ... simply involves shaving some percentage off the top of the available information about control premiums paid”).

The record shows Maroney, based on median figures, determined corporations similar to the bank have received control premiums in the range of 36% and 52%. He used 40% in his appraisal of River Cities. As a practical matter, Maroney’s conservative approach to value indicates he attempted to remove any marketplace distortions. Although we cannot be certain what effect, if any, synergistic value had on Maroney’s calculations, it is more appropriate to accept Maroney’s control premium in order to eliminate the minority discount which is proscribed by statute than to make no adjustment at all. Borruso, 753 A.2d at 459 n. 12; Casey, 780 A.2d at 571-72. Therefore, we affirm the district court’s decision to accept Maroney’s opinion of River Cities’ fair value.

B. Attorney Fees & Witness Expenses. Northwest Investment also argues the district court erred by not ordering the minority shareholders to pay the corporation’s attorney fees and expert witness expenses. Iowa Code section 490.1331(2) (b) states:

The court in an appraisal proceeding may ... assess the fees and expenses of counsel and experts for the respective parties ... [a]gainst either the corporation or a shareholder demanding appraisal, in favor of any other party, if the court finds that the party against whom the fees and expenses are assessed acted arbitrarily, vexatiously, or not in good faith with respect to the rights provided by the chapter.

We review the denial of a request for attorney fees and expenses under Iowa Code section 490.1331 for abuse of discretion. Sieg II, 568 N.W.2d at 807.

Northwest Investment concedes it must prove there was no factual or legal basis for the minority shareholders’ demand for $64 a share in order to be even eligible for fees. Northwest Investment has obviously failed to meet this burden. We affirm the district court’s denial of attorney fees and expert witness expenses.

IV. Conclusion.

We hold the fair value of stock in an appraisal action may include a control premium if the evidence supports the increase in value. The district court properly added a control premium to its valuation of River Cities because transactions involving the sale of financial institutions typically include a large control premium. We therefore affirm the district court’s determination that the minority shareholders’ shares were worth $64 each immediately before the reverse stock split. Northwest Investment was not entitled to an award for attorney fees and expert witness fees because the minority shareholders did not act arbitrarily or in bad faith.

AFFIRMED.

      . Janet Jackson, Control, on Control (A & M Records 1986).

      . This is commonly referred to as a reverse stock split.

      . The parties agree River Cities was not a bank holding company within the meaning of Iowa Code § 524.1801. Therefore, the last sentence of the definition is not relevant.

      . The last unnumbered paragraph of Iowa Code section 490.1301(4), which defines fair value, is not derived from the MBCA. It originated in a 2000 amendment to the Iowa Code. See 2000 Iowa Acts ch. 1211, § 2.

        . The six other states are Connecticut, Idaho, Maine, Mississippi, Virginia, and West Virginia. See Conn. Gen.Stat. § 33-855(4); Idaho Code Ann. § 30-1-1301(4); Me.Rev.Stat. Ann. tit. 13-C, § 1301(4); Miss.Code Ann. § 79-4-13.01(4); Va.Code Ann. § 13.7-729; W. Va.Code § 31D-13-1301(4). Florida has adopted a variation of the new MBCA definition. See Fla. Stat. § 607.1301(4).

      . On appeal, Northwest Investment argues it was improper for Nielsen to add a control premium to his market based valuation. According to Northwest Investment, the control premium only represents 60$ of Nielsen's $48 valuation conclusion.

      . Nielsen utilized the net asset method to determine the value of these other assets. This method sums the value of the assets and subtracts the liabilities associated with those assets.

      . Northwest does not explain why its first appraiser, Wayne Brown, added a 35% control premium to his income approach valuation.