Preview:

Formatting courtesy of the State Bar of South Dakota
and South Dakota Continuing Legal Education, Inc.
222 East Capitol Ave.
Pierre, SD 57501


EARL GOEPFERT and VIVIAN GOEPFERT ,
as Special Administrators of the Estate of Michael Goepfert, Deceased,
Plaintiffs and Appellants,

v.
DR. ELLIOT FILLER, M.D.,
and Brookings Medical Clinic, P.A.,
Defendants,
and Chris Stethem,
Defendant, Third-Party Plaintiff and Appellee,
v.
Brookings Hospital and Louise Coull,
Third-Party Defendants.

[1997 SD 56, __ NW2d __]
South Dakota Supreme Court
Appeal from the Third Judicial Circuit, Brookings County, SD
Hon. Rodney J. Steele, Judge
#19777 — Affirmed

C. E. Light, Yankton, SD
Attorney for Appellants.

Steven M. Johnson, A. Russell Janklow
Johnson, Heidepreim, Miner & Marlow, Sioux Falls, SD
Attorneys for Appellee Stethem.

Argued Mar 26, 1997; Opinion Filed May 14, 1997

KONENKAMP, Justice.
[¶1] Michael Goepfert lost his life shortly after he jumped from a moving car. His parents sued the driver and others, and the circuit court granted summary judgment for the driver. Ordinarily, assumption of the risk is a question of fact for a jury, but under these circumstances, can it be decided as a matter of law? Because he voluntarily alighted from a moving vehicle without warning, we conclude Goepfert assumed the risk, and thus we uphold the summary judgment.


FACTS
[¶2] On Friday evening, October 29, 1993, several friends, including Chris Stethem and Michael Goepfert, began celebrating the annual "Hobo Day" homecoming at South Dakota State University in Brookings. After dinner and a few beers at a friend’s home, the group of six left for downtown. Stethem drove. Goepfert was in the front passenger seat, another man sat between them, and the remaining three were in the backseat. As they neared their destination, the Chevy Lounge on Main Street, they approached an intersection with a red traffic light. Stethem slowed, but never stopped. About fifty feet from the intersection, a passenger in the back told Stethem, "Let us out. Let us out right here." Goepfert said nothing, but others joined in, wanting to be dropped off near the bar, so they would not have to walk back from where they would park. Stethem replied, "No, we’ll all walk up there." One passenger persisted, and Stethem said, "If you want to get out, get out." They were still moving at approximately 10 to 15 miles per hour when the light turned green. Stethem began to accelerate normally. According to everyone in the car, at the moment of acceleration, Goepfert simultaneously, without a word, opened the car door and jumped out. When his feet hit the roadway, he flipped over backwards, causing his head to strike the pavement. He came to rest in the crosswalk where the car entered the intersection. Stethem pulled over on the other side, and all ran back to help their friend.
[¶3] Goepfert was unconscious. He was taken by ambulance to Brookings Hospital, treated and released. Concerned friends watched him through the night to monitor his condition. In the morning, they took him back to the hospital when he became unresponsive. Doctors then discovered a skull fracture and intracranial hemorrhaging. Goepfert was rushed by air ambulance to a hospital in Sioux Falls, where he died the next day. His parents brought a wrongful death action against Stethem and certain medical providers. The malpractice claims are not part of this appeal. Stethem moved for summary judgment. Concluding as a matter of law Goepfert assumed the risk of injury by exiting a moving car, negating any duty Stethem owed to him, the circuit judge granted the motion.

STANDARD OF REVIEW
[¶4] The framework for determining summary judgment questions is set forth in SDCL 15-6-56(c): "The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Id. (reproduced in part); Ward v.Lange, 1996 SD 113, ¶10, 553 NW2d 246, 249. We will affirm only when the legal questions have been correctly decided and there is no genuine issue of material fact. Koeniguer v. Eckrich, 422 NW2d 600, 601 (SD 1988); Bego v. Gordon, 407 NW2d 801, 804 (SD 1987). As the moving party has the burden of proof, the "evidence must be viewed most favorably to the nonmoving party and reasonable doubts should beresolved against the moving party." Rumpza v. Larsen, 1996 SD 87, ¶9, 551 NW2d 810, 812 (citations omitted); Pickering v. Pickering, 434 NW2d 758, 760 (SD 1989). If any legal basis exists to support thecircuit court’s ruling, affirmance is proper. Petersen v. Dacy, 1996 SD 72, ¶5, 550 NW2d 91, 92 (citations omitted).

ANALYSIS AND DECISION
[¶5] The circuit court ruled from the bench:
[I]n looking at everything in the light most favorable to the plaintiff here, the scenario I get is
that the driver of the car was driving by the Chevy Lounge, the passengers were saying, "Let us
out here and so we don’t have to walk all the way back to the Chevy Lounge after you find
a place to park." The driver of the car said, "No," and then because he was getting badgered
about it, he says, "Well, if you want to get out, get out now," but the car had not stopped; that
is undisputed. It was going slow, but it had not stopped, and even looking at it from the
perspective of the decedent here, that the defendant was slowing down and that he took the
defendant’s statement seriously, that "If you want to get out, get out now," that that was
permission to exit the car, no reasonable person exits a moving car until it is stopped. I think
that anytime somebody exits a moving vehicle, he is assuming a known risk. He is assuming
there is a good chance that he is going to get injured. He has got to wait until it stops. And so
to me, as a matter of law, I conclude that there was assumption of the risk here.
To learn whether the judge decided correctly, we now examine the concept of assumption of the risk with the facts viewed in a light most favorable to Goepfert. We review this question under the de novo standard. Boever v. State Board of Accountancy, 526 NW2d 747, 749 (SD 1995) (Boever I).
[¶6] Assumption of the risk embodies three elements. It must be shown that Goepfert: (1) had actual or constructive knowledge of the risk; (2) appreciated its character; and (3) voluntarily accepted the risk, with the time, knowledge, and experience to make an intelligent choice. Bauman v. Auch, 539 NW2d 320, 326 (SD 1995); Bell v. East River Electric Power Co-op., Inc., 535 NW2d 750, 754 (SD 1995); Nelson v.
Nelson Cattle Co., 513 NW2d 900, 904 (SD 1994); Wolf v. Graber, 303 NW2d 364, 368 (SD 1981). Failure to establish any one element negates the defense. Westover v. East River Elec. Co-op., Inc., 488 NW2d892, 901 (SD 1992). We recently stated in Mack v. Kranz Farms, Inc., 1996 SD 63, ¶8, 548 NW2d 812,
814:
"Ordinarily, questions of negligence, contributory negligence and assumption of risk are for the
jury, provided there is evidence to support them." Stenholtz v. Modica, 264 NW2d 514, 517
(SD 1978); see also Lovell v. Oahe Elec. Co-op., 382 NW2d 396, 399 (SD 1986); Myers v.
Lennox Co-op. Ass’n, 307 NW2d 863, 864 (SD 1981); Wolf v. Graber, 303 NW2d 364,
368 (SD 1981).
[¶7] Though assumption of the risk is most often an issue for the jury, we have occasionally held summary judgment appropriate. "It is only where the essential elements are conclusively established that the plaintiff may be charged with assumption of the risk as a matter of law." Smith v. Community Co-op. Ass’n of Murdo, 87 SD 440, 443, 209 NW2d 891, 892 (1973). See Westover, 488 NW2d at 896 ("In the absence of a factual dispute, where the evidence warrants, the circuit court and this court can find assumption of the risk as a matter of law."). In Myers v. Lennox Co-op. Ass’n, 307 NW2d 863 (SD 1981), for example, we affirmed summary judgment on assumption of the risk against a plaintiff who was injured after stepping on an unstable pile of lumber while loading a garbage truck. No facts were in dispute; he had reasonable alternatives to stepping on the lumber; and reasonable persons could not differ over the risk the plaintiff assumed. "His decision to walk on the lumber was made under such circumstance that he must be held to have made an intelligent choice to encounter the risk presented by that course of action." Id. at 865. Has each required element been satisfied in this case?
[¶8] First, to assume a risk, one must have actual or constructive knowledge of the peril involved. Constructive knowledge will be imputed if the risk is so plainly observable that "anyone of competent faculties [could be] charged with knowledge of it." Westover, 488 NW2d at 901 (internal citations omitted). Risk is intrinsic to some acts. Considering these facts and exercising ordinary common sense, reasonable minds cannot differ on the jeopardy involved in stepping from a moving vehicle. See Nix v. Williams, 316 NYS2d 321, 324 (NYAppDiv 1970) (passenger who suddenly and unexpectedly jumped out of moving vehicle without saying anything barred from recovery as a matter of law); Groshek v. Groshek, 57 NW2d 704, 706 (Wis 1953) (where plaintiff driver allowed a passenger to drive while he reached into the backseat, it cannot be reasonably said that plaintiff did not know the danger in such activity).
[¶9] Next, an individual will be held to have appreciated the danger undertaken if it was "a risk that no adult person of average intelligence can deny." Bell, 535 NW2d at 754; Nelson, 513 NW2d at 905. Obviously, "there are some risks to which no adult will be believed if he says he did not understand them." Staats by Staats v. Lawrence, 576 A2d 663, 668 (DelSuperCt 1990), aff’d, 582 A2d 936 (Del 1990). Michael Goepfert, a twenty-two year old college student, had to know and appreciate the hazard he faced in leaping from a moving car. "[One] may not close his eyes to obvious dangers, and cannot recover where he was in possession of facts from which he would be legally charged with appreciation of the danger." Herod v. Grant, 262 So2d 781, 783 (Miss 1972)(quoting 57 AmJur2d Negligence §282 (1971)). No testimony from anyone in the car suggests Goepfert was unaware of what he was doing or that he misperceived the car was moving.
[¶10] Finally, assumption of the risk requires voluntarily acceptance, having had the time, knowledge, and experience to make an intelligent choice. Bauman, supra. As he leapt from the car, Goepfert may not have known the light had turned green and Stethem was just then accelerating. One passenger testified:
Q. After Chris said, "If you want to get out, get out," did you expect Chris to accelerate?
A. No.
Q. Then if you did not expect Chris to accelerate, would it not be reasonable that Mike would not have expected him to accelerate, too?
A. But Mike’s focus wasn’t on the green light is what I’m getting at. Chris was watching the road. He was focused on the green light. Mike’s focus was thinking that if he stops, I’m going to jump out and get up there before everybody else does.
Consistent with the others, this same witness testified: Q. "Were you surprised that Mike jumped out of the vehicle? " A. "Yeah, I was very much so."
[¶11] Everyone in the car felt Stethem spoke in jest or was acting the "smart aleck" when he said, "If you want to get out, get out." Even if Goepfert took this comment seriously, he still gave no sign of his intent, other than, as one passenger said, to glance at his friends in the backseat: "It was like he was joking like he was going to. Kind of acting like he was going to do it and then not really do it. Then he went ahead and did it." Automobile passengers have a duty of care for their own safety. Glandon v. Fiala, 156 NW2d 327, 331 (Iowa 1968); Atwood v. Holland, 148 SE2d 851, 854 (NC 1966)("A gratuitous passenger in an automobile is required to use that care for his own safety that a reasonably prudent person would employ under the same or similar circumstances."); Rutz v. Iacono, 40 NW2d 892, 895 (Minn 1949); White v. Huffmaster, 40 NW2d 87, 89 (Mich 1949). {fn1}  Goepfert’s decision surpassed mere negligence.
[¶12] Acceptance of risk necessarily connotes attention to reasonable alternatives. Mack, 1996 SD 63,¶¶15-17, 548 NW2d at 814-15. Here "reasonable" refers to whether one had a fair opportunity to elect whether to subject oneself to danger. Berg v. Sukup Mfg. Co., 355 NW2d 833, 835 (SD 1984) (Berg II). Acceptance is not voluntary if another’s tortious conduct leaves no reasonable alternative to avert harm or to exercise or protect a right or privilege, which another has no right to deny. Mack, 1996 SD 63, ¶15,548 NW2d at 815 (quoting Restatement of Law (Second) Torts, §496E, p 576 (1965)). Everyone agreed Stethem drove normally. The car may have been moving faster than Goepfert anticipated when he jumped, but that cannot erase the reality that he still elected to jump while the car was moving. On this point the evidence is unrefuted. Goepfert’s only reasonable alternative was to stay in the car until it reached a complete stop. No one’s wrongful conduct forced him to make his fateful choice.
[¶13] As a matter of law, Goepfert assumed the risk. We see no genuine issues of material fact for trial. By jumping from the car, Goepfert voluntarily and unfortunately accepted the peril inherent in such act, and, to the sorrow of his family and friends, his decision ended in tragedy.
[¶14] Affirmed.
[¶15] MILLER, Chief Justice, and SABERS, AMUNDSON, and GILBERTSON, Justices, concur.

fn1 . Compare cases involving passengers engaged in horseplay in and around moving vehicles. See, e.g., Brown v. Derry, 518 P2d 251, 253 (WashCtApp 1974)(considering sixteen-year-old who rode on the trunk of a car, "The risk of harm in attempting to ride on the exterior of an automobile for even a short distance in such a fashion is plainly a foreseeable risk, and reasonable minds could not differ with respect to it"); Miller v. General Accident Fire & Life Assur. Corp., Ltd., 280 So2d 280, 282 (LaCtApp 1973)(man riding on a car fender, "The general rule when one is an outrider on a vehicle is that he only assumes such risks as are ordinarily incident to his position"); Vaughn v. Cortez, 180 So2d 796 (LaCtApp 1965)("playing cowboy" while riding on the front of a moving car is so dangerous, a risk is assumed); Irwin v. Klaeren, 123 NE2d 743, 744 (IllAppCt 1954)(holding as a matter of law and noting that "it is hard to conceive of a more reckless disregard for his own safety" than a man who holds his head and shoulders outside of the window of a moving car).

Download 233230.pdf

South Dakota Law