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Parker v. Casa Del Ray - Rapid City2/27/2002
of instruction number 14 the assumption of the risk issue, the instructions given adequately explain the law of this affirmative defense to the jury. In reviewing the instructions as a whole, there was no prejudicial error. See Overfield, 2000 SD 98 at , 614 NW2d at 816 (finding the instructions must be viewed as a whole to determine if they adequately inform the jury on the laws).
[ .] Next, Casa del Rey argues that the trial court erred by denying its proposed jury instruction on an employer's duty to provide a safe work place for the plaintiff, which read as follows:
An employer has a duty to furnish an employee with a reasonably safe place to work. This includes the duty of establishing proper methods of work and adequate supervision of the work and safe equipment with which to perform the work. If the employee is mature and sensible and has had some experience in the work being done, he must look after himself as to all obvious dangers in the details of the work.
Casa del Rey relied on Jackson v. Van Buskirk, which held employers have a duty to furnish a safe work place for employees, but did not deal with nonparty negligence. 424 NW2d 148, 149 (SD 1988). The trial judge ruled the jury should not be given the instruction, as that would "unduly interject" a nonparty into the case. Notwithstanding this reasoning, the trial judge went on to state that it was "fair game" to argue the employer's duty to the jury during closing argument. This must have been based on the fact that there was evidence admitted during trial on an employer's duty.
[ .] This Court has held that if there is "competent evidence" in the record regarding a particular issue, then the jury should be instructed on that issue. Wallahan, 523 NW2d at 422. We cannot permit juries to deliberate regarding any issue without first receiving proper guidance. This jury was apparently authorized to consider the factual evidence on the employer's duty without receiving any law on the issue or being told what law to apply to the evidence regarding that issue.
[ .] In the case of Steele v. Encore Manufacturing Co., Inc., 579 NW2d 563, 568 (Neb 1998), the Nebraska Court of Appeals held as follows:
he general rule in Nebraska is that where it is claimed that the conduct of a nonparty is the sole proximate cause of an accident, the jury should be advised that if it finds that the nonparty is the sole proximate cause, then its verdict should be for the defendant. This is merely a way of instructing the jury that it is appropriate for a defendant to deny proximate cause by introducing evidence that someone else was the sole proximate cause. Although the above stated rule has been the general rule in Nebraska for quite some time, the present situation is unique and presents an issue of first impression in Nebraska for one reason: The nonparty third person whose negligence is alleged to have been the sole proximate cause is the plaintiff's employer. Although we acknowledge that employers cannot be held liable in tort for injuries to employees covered by the Nebraska Workers' Compensation Act, we do not, as Steele urges, conclude that a defendant is therefore barred from arguing in a negligence action that the employer's negligence was actually the sole proximate cause of the employee's injuries.
Regardless of the plaintiff's not being entitled to tort compensation from the employer, if the employer's actions are the sole proximate cause of the employee's injuries, then it follows that the defendant's conduct is not a proximate cause, and the defendant should be entitled to argue and have the jury instructed accordingly. Numerous other courts, both federal and state, have ackno
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