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Dodson v. South Dakota Dep't of Human Services8/10/2005
n a verdict in favor of Jason was the finding of contributory negligence, it is clear that the instructions given were prejudicial, i.e. the jury probably would have returned a different verdict if the faulty instructions had not been given. Davis v. Knippling, 1998 SD 31, , 576 NW2d 525, 526-27.
B. Assumption of the Risk
[ .] In this case the jury made no finding on the issue of assumption of the risk because it found that Kristi was contributorily negligent. However, Instructions 26 and 26A were confusing. Instruction 26 (SD Civil Pattern Jury Instruction 13-01) told the jury the circumstances under which assumption of the risk applied and 26A said that it did not apply to mental patients.
[ .] In Morrison v. MacNamara, 407 A2d 555 (DC 1979) the court said that assumption of the risk is a defense only when the plaintiff possesses full comprehension and appreciation of the danger which will require an analysis of the patient's age, intelligence and experience. Assumption of the risk is rarely applied in professional negligence cases because of the disparity of knowledge between professionals and their clients. Id. The superior knowledge of the doctor together with the limited ability of the patient to ascertain the risks and dangers negate a critical element, i.e. the knowledge and appreciation of the risk. Id. In a later case, Durphy v. Kaiser Foundation Health Plan, 698 A2d 459 (DC 1997), the same court held that a physician's superior knowledge and expertise and the limited knowledge of the patient concerning the dangers negate the knowledge and appreciation of the risk which are critical elements of that defense.
[ .] The trial court here should have instructed on assumption of the risk as a defense only if it determined that Kristi possessed full comprehension and appreciation of the danger of injury . This required the court to perform an analysis of her age, intelligence, experience and mental condition.
[ .] Reversed and remanded.
[ .] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.
[ .] RUSCH, Circuit Judge, for SABERS, Justice, disqualified.
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