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Welch v. Haase12/3/2003
hey "talked every day on the computer at 10 o'clock." Caz's grandfather, Larry Welch, also testified that:
Caz Welch was my—he was a special grandson. We had him most of his life. And we loved him like a son. Me and him , we went fishing all the time. Hunting. Trapping. We went pheasant hunting. And just seemed like we was together all the time. And he would help me cut up deer, and I learned him to skin pheasants, and he would go down and he would work for Kucera's, skin peasants. We went camping together, took Darby with us. Went swimming. Went to the Keyapaha River thousands of times. And I think of him every day. He was just a special boy.
Larry Welch also testified about things that he and Caz were planning to do, but had not yet had a chance to do together. He stated that Caz "was like a son. And he was a buddy. And I ache for him every day."
. Considering all of the foregoing, there was undisputed evidence of some pecuniary loss. Therefore, in light of Kleins' admission of liability for damages, we believe that the verdict on this cause of action was "so disproportionate to the uncontested evidence as to defy common sense and logic." Neison, 653 A2d at 637. We therefore reverse and remand the wrongful death cause of action against Kleins for a new trial on damages.
(Survival Action)
. We also believe that the trial court erred in failing to grant a new trial on Klein's admitted liability for damages arising from the survival action. On this cause of action, the only decision for the jury was to determine the amount of damages Welch sustained for the pain and suffering he endured before his death. The jury's decision to award no damages for the uncontested pain and suffering endured in this death by suffocation was also "disproportionate to the uncontested evidence." Id. We therefore reverse and remand the survival action against Kleins for new trial on damages.
2. Whether the trial court erred in instructing the jury on the social host and landowner liability issues.
. Welch also argues that the trial court created jury confusion on Welch's claims against the Haases by instructing the jury on a social host's liability for providing alcohol and on landowner liability law. Welch contends that the problem was compounded when Haases' lawyer stated that "social host immunity applies" during his closing argument. Welch concedes that Haases' lawyer did not pursue that argument any further, but contends that "the damage had been done." Welch concludes that the instructions created reversible error requiring a new trial "because they conflicted with the applicable law, they were confusing, and they were misleading." We disagree.
. In order to reverse for an improper jury instruction, the appellant must show not only that the instruction in question was erroneous when the instructions are viewed collectively, but also that the jury's verdict would have changed as a result of the erroneous instruction had it not been given. City of Bridgewater v. Morris, Inc., 1999 SD 64, , 594 NW2d 712, 715. So also, instructions that are " isleading, conflicting, or confusing" constitute reversible error; " onetheless, an appellant must show not only that a particular instruction was erroneous, but also that is was prejudicial, meaning the jury probably would have returned a different verdict if the faulty instruction had not been given." Davis v. Knippling, 1998 SD 31, , 576 NW2d 525, 526-27 (further citations omitted).
. The first instruction at issue is instruction 15A, which governed the liability of owners of land. This instruction indicated that:
Defendants Allen Haase and Zenda Haase
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