Opinion

Stenholtz v. Modica

  • 264 N.W.2d 514
  • 1978 S.D. LEXIS 163
Court
South Dakota Supreme Court
Filed
Apr 6, 1978
Status
Published
Author
Porter
On the bench
Wollman, Zastrow, Morgan, Porter
Cited by
37 cases
Authority
More cited than 8.7%

stating when “determining whether the evidence on the plaintiff’s behalf was sufficient to warrant submission to the jury, the plaintiff is entitled to have every controverted fact resolved in his favor and to have the benefit of all reasonable inferences that can be deduced from the evidence”

How later courts described this case

  • stating when “determining whether the evidence on the plaintiff’s behalf was sufficient to warrant submission to the jury, the plaintiff is entitled to have every controverted fact resolved in his favor and to have the benefit of all reasonable inferences that can be deduced from the evidence”
  • finding that landowners are not liable for dangers known or reasonably obvious to an invitee
  • questions of negligence for jury if evidence to support issue

Written by the judges who cited it.

The opinion

PORTER, Justice

(dissenting).

I respectfully dissent and would hold that the plaintiff contractor, as a matter of law, assumed the risk. Since he was the expert and the homeowner was not, plaintiff had no right to claim reliance upon any representation the homeowner made to him concerning the safety of the canopy, when the limited observation plaintiff chose to make revealed the canopy condition was “dangerous” and “unsafe.” Thereafter, in spite of his own conceded misgivings about the canopy, plaintiff voluntarily placed his scaffolding in such position that his own safety would be jeopardized if the loosened canopy fell, as it later did. Plaintiff independent contractor knowingly acquiesced in the risk by electing to go ahead with the work in the manner he did. Bartlett v. Gregg, 77 S.D. 406 , 92 N.W.2d 654 (1958); Restatement (Second) of Torts § 496 C at 569 (1965).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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