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Thompson v. Mehlhaff6/8/2005
Argued January 12, 2005
[ .] Terry Thompson's wife, Kathleen, on behalf of his estate (Thompson), sued Mehlhaff Trucking (Mehlhaff) for the wrongful death of her husband following a two-truck collision. The jury found Thompson to be contributorily negligent more than slight and entered a zero damage award. The trial court granted Thompson's motion for judgment notwithstanding the verdict on the jury's finding of contributory negligence more than slight but let the verdict stand on Mehlhaff's liability and ordered a new trial on damages only. Mehlhaff appeals and Thompson has filed a notice of review. We affirm.
FACTS
[ .] Spencer Quarries was paving a road with asphalt near Greenwood, South Dakota, in Charles Mix County. Spencer Quarries was using its trucks and employees and hired additional trucks and drivers from Mehlhaff to haul hot mix to the lay-down machine. The loaded trucks drove on the "cold" side of the road to avoid damage to the newly laid asphalt on the "hot" side of the road. The empty trucks returned on the freshly paved "hot" side of the road. As a result, at the time of the collision, trucks were driving on the left-hand or "wrong" side of the road instead of the usual right-hand or "correct" side of the road. To protect the freshly laid asphalt, the trucks were driving like they were in England instead of South Dakota.
[ .] On June 16, 2000, Thompson, who was employed by Spencer Quarries, collided with Stanley Baltzer, an employee of Mehlhaff. Thompson was driving on the "hot" side of the road in the left-hand lane (where he was supposed to be). Baltzer swerved sharply to the right as he went around a curve in the road and the collision occurred in Thompson's lane. The closing speed of the trucks was more than 100 miles per hour. Together the trucks' total weight was 128,000 pounds. Both Thompson and Baltzer were killed in the collision.
[ .] Thompson's estate received worker 's compensation benefits as a result of his death from his employer, Spencer Quarries. Baltzer's estate also collected worker 's compensation benefits from his employer, Mehlhaff. Thompson then sued Mehlhaff asserting vicarious liability for the wrongful death of her husband caused by Mehlhaff's employee, Baltzer. Prior to trial, Mehlhaff moved for summary judgment claiming that Thompson was limited to the exclusive remedy of worker's compensation. The trial court denied summary judgment and allowed Thompson's suit against Mehlhaff to proceed.
[ .] The case was tried January 20-22, 2004. The jury returned a zero verdict against Thompson and in favor of Mehlhaff. In answers to special interrogatories, the jury found Baltzer was negligent and also found that Thompson was contributorily negligent more than slight. The trial court entered judgment in favor of Mehlhaff based on the jury's verdict.
[ .] Thompson moved for judgment notwithstanding the verdict and for a new trial. The trial court granted Thompson's motion and entered a judgment for Thompson on liability based on the jury's finding that Baltzer was negligent. The trial court further granted a judgment notwithstanding the verdict on the jury's finding that Thompson was contributorily negligent. In doing so, the court concluded that it should have granted Thompson's motion for directed verdict on contributory negligence at the end of the trial because there was insufficient evidence for the jury to find contributory negligence more than slight. Finally, having granted a judgment notwithstanding the verdict for Thompson on liability, the trial court granted a new trial on damages. Mehlhaff appeals and Thompson raises one issue by notice of review.
ANALYSIS
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