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Welch v. Haase12/3/2003
no damages against them was probably based upon one of their affirmative defenses. However, there is absolutely no way to know: 1) if the jury found that Welch's claims were barred because Caz Welch assumed the risks; 2) if the jury found that Welch's claims were barred by contributory negligence that was more than slight; 3) if the jury simply found that neither Allen or Zenda Haase were negligent; 4) if the jury found that Allen and/or Zenda Haase was/were negligent, but the negligence was not a proximate cause of the wreck that caused Caz Welch's suffocation and death; 5) if the jury awarded zero damages while acting under passion, prejudice, or a mistake of law; or 6) . . . if the jury was confused by the improper instructions on landowner liability and South Dakota's Social-Host statute.
Because reasons (1) through (4) all support the verdict and can be explained with references to the evidence, rather then juror passion, prejudice or mistake of law, we affirm the denial of the motion for a new trial against Haases.
b. Darby Klein and Earla Klein
. The motion for new trial relating to Kleins is, however, different because they admitted liability on both the wrongful death and the survival actions. In fact, the trial court removed all defenses from the jury's consideration, and the jury was instructed to only determine Welch's damages. Because the Kleins admitted liability, the motion should have been granted if there was undisputed evidence of pain and suffering in the survival action or pecuniary loss in the wrongful death action. For the reasons set forth below, we believe that there was such evidence. Therefore, Welch was entitled to a new trial on damages for Kleins' admitted liability in the wrongful death and the survival actions.
(Wrongful Death Cause of Action)
. "In every action for wrongful death the jury may give such damages as they may think proportionate to the pecuniary injury resulting from such death to the persons respectively for whose benefit such action will be brought." SDCL 21-5-7. With respect to pecuniary injury, Caz's mother and grandfather first identified what Caz would provide for them. The evidence reflected that Caz was especially close to his grandparents because he lived with them during high school after his mother moved to Aberdeen. The testimony also indicated that Caz planned to attend school. Caz's mother testified that Caz had been accepted to Mitchell Vo-Tech, where he planned to study computer programming. She testified that Caz "always told his grandpa and grandma he was going to college, and make a lot of money, and buy them a home." "South Dakota law requires that the beneficiaries show that they could 'reasonably expect' to receive such benefits." Halvorsen v. Dunlap, 495 F2d 817, 822 (8thCir 1974) (further citations omitted).
. In addition to the forgoing claim, "in a wrongful death action, wherein the decedent was a minor, . . . loss of companionship and society, which may be expressed by, but is not limited to, the words 'advice,' 'assistance' and 'protection' are proper elements of damage for [the jury] to consider in reaching their verdict." Anderson v. Lale, 88 SD 111, 122-23, 216 NW2d 152, 158-59 (1974). This rule also applies in cases regarding the death of an adult child. Halvorsen, 495 F2d at 821. Caz was eighteen years old at the time of the accident.
. With respect to a loss of companionship and society, Caz's mother testified that Caz was "a gentle guy" who "smiled all the time." She said that he was an avid hunter and fisherman, and he enjoyed bowling and playing football. Despite living in a different city, she maintained a close relationship with Caz, and t
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