#29054-a-MES

2020 S.D. 18

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

DENNIS SEDLACEK, Plaintiff and Appellant,

v.

PRUSSMAN CONTRACTING, INC., Defendant and Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE THIRD JUDICIAL CIRCUIT

BROOKINGS COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE DAWN M. ELSHERE

Judge

* * * *

RENEE H. CHRISTENSEN of

Johnson & Christensen Law Office, P.C.

Sioux Falls, South Dakota

EDWIN E. EVANS of

Evans, Haigh & Hinton, LLP

Sioux Falls, South Dakota Attorneys for plaintiff and 

appellant.

MICHAEL L. LUCE

DANA VAN BEEK PALMER of

Lynn, Jackson, Shultz & Lebrun, P.C.

Sioux Falls, South Dakota Attorneys for defendant and 

appellee.

* * * *

CONSIDERED ON BRIEFS

MARCH 17, 2020

OPINION FILED 04/01/20
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SALTER, Justice

[¶1.] Dennis Sedlacek sought damages for injuries allegedly sustained while 

repairing a crane owned by Prussman Contracting, Inc. A jury returned a general 

verdict in favor of Prussman. Sedlacek appeals, arguing the court abused its 

discretion when it admonished the jury not to consider testimony regarding OSHA 

standards, denied a proposed jury instruction on OSHA standards, and denied 

Sedlacek’s motion for a mistrial. We affirm.

Background

[¶2.] On Friday, January 30, 2015, Dennis Sedlacek was working for his 

employer, Titan Machinery, repairing a crane at Prussman Contracting’s facility in 

Brookings. Two Prussman employees, Vernon “Russ” Leubner and Rick Schwartz,

were assisting Sedlacek with the repair. Leubner was operating a forklift. 

Sedlacek was directing the repair and told Leubner to lower the forks, back up six 

feet, and put the forks on the ground. Sedlacek then turned his back to the forklift 

and moved to his right to pick up a remote control that operated the crane. 

Meanwhile, unknown to Sedlacek, Leubner drove the forklift forward again and 

raised the forks. When Sedlacek turned back to the left, he claims his neck struck 

one of the forks. Sedlacek testified that he reacted by yelling at Schwartz, who was 

standing nearby. However, both Leubner and Schwartz denied that Sedlacek was 

struck.

[¶3.] Sedlacek testified that he experienced pain in his neck and back. He 

reported the injury to his employer by telephone and continued working. After 

completing the repair, Sedlacek returned to Sioux Falls and was advised by his 
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supervisor to get evaluated at Sanford Health’s occupational medicine clinic where 

he was diagnosed with contusions to his neck and trapezius muscles. Sedlacek 

returned to the clinic the following Monday because he experienced increasing lower 

back pain over the weekend. Despite several months of physical therapy and 

chiropractic treatments, Sedlacek’s pain complaints remained unresolved. He was 

later diagnosed with a pinched nerve in his low back and underwent spine fusion 

surgery at the L5-S1 level, incurring over $250,000 in medical expenses and missing 

seven months of work.

[¶4.] Sedlacek commenced this suit against Prussman in April 2016, 

alleging general negligence. Prussman denied liability and asserted contributory 

negligence and assumption of the risk as affirmative defenses. Sedlacek later 

amended his complaint to add claims that Prussman failed to train and supervise 

its employees.

[¶5.] In response to Sedlacek’s discovery requests, Prussman produced a 

certificate showing Leubner had completed the necessary training for workplace 

forklift operation and was certified as compliant with the Occupational Health and 

Safety Administration (OSHA) General Industry Standards on November 10, 

2015—over ten months after Sedlacek’s alleged injury. Both Sedlacek and 

Prussman listed Leubner’s OSHA certification on their pretrial exhibit lists. 

However, Sedlacek had not alleged a violation of OSHA standards in either version 

of his complaint, and he did not propose jury instructions that used OSHA 

standards to define the standard of care for Leubner or Prussman.
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[¶6.] The case was tried by a jury on June 3-7, 2019. During crossexamination, Leubner admitted that he had previously received training on OSHA 

standards for operating a forklift during his Job Corps training in 2001 and 2002. 

However, Leubner acknowledged he was not certified when he started his 

employment with Prussman in 2011 or in 2015 when Sedlacek claims he was 

injured. Leubner testified that at the time of the alleged incident he was not aware 

that OSHA regulations require recertification every three years.

[¶7.] Over objections from Prussman’s counsel, the circuit court allowed 

Sedlacek’s counsel to question Leubner about specific OSHA standards. The court 

also overruled Prussman’s objections when Sedlacek’s counsel asked Lyle 

Prussman, president of Prussman Contracting, about OSHA standards during 

cross-examination.

[¶8.] On June 6—the fourth day of trial—Sedlacek submitted a brief and, for 

the first time, proposed two jury instructions regarding OSHA standards. The first 

proposed jury instruction read as follows:

Evidence has been introduced in this case on the subject of the 

Occupational Safety and Health Administration, OSHA, 

standards for safe operation of a forklift. OSHA standards can 

be considered as evidence of the standard of care that Defendant 

was expected to meet.

[¶9.] The second proposed instruction contained references to 29 U.S.C. § 

654 and 29 C.F.R. §1910.178, the latter of which details OSHA’s compliance 

standards and requirements for forklift training.1 Prussman objected to these 

 

1. In the argot of the OSHA regulations, forklifts are described as “powered 

industrial trucks.” 29 C.F.R. § 1910.178.
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additional proposed instructions due to their late submission, further arguing that 

OSHA standards were not relevant since Sedlacek had not alleged a violation of 

OSHA standards in his negligence claim and had not presented expert testimony 

that an OSHA violation had occurred.

[¶10.] The court agreed and denied Sedlacek’s proposed jury instructions, 

citing his failure to allege an OSHA violation in either his original or amended 

complaint, as well as his failure to raise a potential OSHA violation until trial. 

With regard to the testimony already admitted that related to OSHA standards and 

Prussman’s potential violations, the court instructed the jury not to consider the 

testimony and referenced a preliminary instruction regarding the possibility that 

the jury might inadvertently hear improper evidence during the course of the trial.2 

The court, however, did allow Leubner’s training certificate to remain as an exhibit 

for the jury to consider.

[¶11.] Sedlacek moved for a mistrial based on the court’s order to strike 

testimony regarding OSHA standards, arguing severe prejudice because “now the 

Court is going to tell the jury . . . they should ignore it all which confuses and leads 

the jury to believe that either we did something wrong or worse yet that OSHA 

doesn’t apply . . . .” The circuit court denied the motion for a mistrial, determining 

Sedlacek had failed to establish his prejudice claim.

[¶12.] The final jury instructions stated the principles of general negligence, 

including legal cause. Prussman disputed causation and argued there was 

 

2. The preliminary instruction stated generically that “[t]here may be times 

when you hear improper testimony, and I will tell you to disregard it because 

it is improper and must not be considered.”
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insufficient evidence that Sedlacek had, in fact, been injured. The instructions also 

allowed the jury to consider Prussman’s affirmative defenses of contributory 

negligence and assumption of the risk, which Sedlacek does not challenge on 

appeal.

[¶13.] The jury returned a general verdict for Prussman, utilizing a verdict 

form that simply stated:

We, the jury, duly empaneled to try the issues in this case, find in 

favor of:

_______ Plaintiff

_______ Defendant

Please place an “X” or “√” in one of the spaces provided.

[¶14.] Sedlacek presents three issues for our review, which we restate as 

follows:

1. Whether the circuit court abused its discretion when it restricted 

evidence regarding Prussman’s alleged OSHA violations.

2. Whether the circuit court abused its discretion when it denied 

Sedlacek’s requested jury instructions regarding OSHA standards.

3. Whether the circuit court abused its discretion when it denied 

Sedlacek’s motion for a mistrial.

[¶15.] Prussman argues that we are unable to reach the merits of Sedlacek’s 

claims because the general verdict prevents meaningful appellate review.

Analysis

[¶16.] A circuit court’s “evidentiary rulings will not be overturned absent a 

clear abuse of discretion.” Weber v. Rains, 2019 S.D. 53, ¶ 22, 933 N.W.2d 471, 477 

(quoting Veith v. O’Brien, 2007 S.D. 88, ¶ 25, 739 N.W.2d 15, 23). We review a 
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circuit court’s evidentiary rulings by utilizing “a two-step process.” Ruschenberg v. 

Eliason, 2014 S.D. 42, ¶ 23, 850 N.W.2d 810, 817 (quoting Supreme Pork, Inc. v. 

Master Blaster, Inc., 2009 S.D. 20, ¶ 59, 764 N.W.2d 474, 491). First, we “determine 

whether the trial court abused its discretion in making an evidentiary ruling.” Id.

(quoting Supreme Pork, 2009 S.D. 20, ¶ 59, 764 N.W.2d at 491). “[S]econd, we 

determine ‘whether this error was a prejudicial error that in all probability affected 

the jury’s conclusion.’” Id. (quoting Supreme Pork, 2009 S.D. 20, ¶ 59, 764 N.W.2d 

at 491). As we stated in our Supreme Pork decision, “evidentiary rulings are only 

reversible ‘when error is demonstrated and shown to be prejudicial error. Error is 

prejudicial when, in all probability it produced some effect upon the final result and 

affected the rights of the party assigning it.’” 2009 S.D. 20, ¶ 59, 764 N.W.2d at 491 

(internal citation omitted).

[¶17.] A circuit court’s denial of proposed jury instructions is also reviewed 

under an abuse of discretion standard. Vetter v. Cam Wal Elec. Coop., Inc., 2006 

S.D. 21, ¶ 10, 711 N.W.2d 612, 615. In Vetter, we stated that:

no court has discretion to give incorrect, misleading, conflicting 

or confusing instructions [and] to do so constitutes reversible 

error if it is shown not only that the instructions were 

erroneous, but also that they were prejudicial. Erroneous 

instructions are prejudicial . . . when in all probability they 

produced some effect upon the verdict and were harmful to the 

substantial rights of a party.

Id.

[¶18.] So too, we review a circuit court’s denial of a motion for mistrial for 

abuse of discretion. Behrens v. Wedmore, 2005 S.D. 79, ¶ 67, 698 N.W.2d 555, 580. 
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“A denial of a mistrial will be affirmed ‘absent an abuse of discretion resulting in 

clear prejudice.’” Id. (citation omitted).

[¶19.] All three issues presented by Sedlacek allow significant deference to 

the circuit court and require a showing of prejudice to reverse the court’s rulings. 

Establishing prejudice, even if the court abused its discretion, is difficult when a 

general verdict form is used for a case tried upon multiple theories, because “‘this 

Court cannot conclusively determine whether the jury based its verdict on any 

number of defenses’ or other theories offered by the parties to a case.” State Farm 

Mut. Auto. Ins. Co. v. Miranda, 2019 S.D. 47, ¶ 10, 932 N.W.2d 570, 573-74 (quoting 

Reede Constr., Inc. v. S.D. Dep’t of Transp., 2017 S.D. 63, ¶ 14, 903 N.W.2d 740, 

745); see also Knudson v. Hess, 1996 S.D. 137, ¶ 16, 556 N.W.2d 73, 77-78 

(explaining the limitations of appellate review when a general verdict form is used). 

Consequently, we have held that “if a general verdict is handed down and the jury 

could have decided the case on two theories, one proper and one improper, the 

reviewing court will assume that it was decided on the proper theory.” Miranda, 

2019 S.D. 47, ¶ 10, 932 N.W.2d at 574 (quoting Reede, 2017 S.D. 63, ¶ 14, 903 

N.W.2d at 745).

[¶20.] Here, Sedlacek urges us to determine the merits of his claims and 

argues that he was prejudiced by the court’s rulings, which restricted his ability to 

argue Prussman violated OSHA standards. However, even if this restriction was 

outside the circuit court’s range of permissible choices, Sedlacek cannot establish 

that the error produced the adverse verdict. This is particularly true here, where 

Sedlacek does not challenge the balance of the court’s instructions on general 
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negligence, legal cause, and the defenses of contributory negligence and assumption 

of the risk.

[¶21.] Given these instructions and the evidence, the jury could have 

determined Sedlacek simply did not prove the element of legal cause. Prussman 

introduced evidence that, if believed, posited Sedlacek was not injured in the 

incident on January 30, 2015. It is also possible that the jury determined Sedlacek 

had acted unreasonably by not watching where he was going and, in so doing, was 

contributorily negligent to a degree that was more than slight. See SDCL 20-9-2 

(“[T]he fact that the plaintiff may have been guilty of contributory negligence does 

not bar a recovery when the contributory negligence of the plaintiff was slight in 

comparison with the negligence of the defendant . . .”). Finally, the court’s 

instructions allowed the jury to determine that Sedlacek assumed the risk of being 

injured under Prussman’s theory that he had significant experience working around 

forklifts.

[¶22.] Without special interrogatories detailing the basis for the jury’s 

determination of no liability,3 we are unable to discern the reason for its verdict, 

which could have rested on multiple permissible bases. Under the circumstances, 

we cannot assess prejudice even if the court abused its discretion. We must 

therefore affirm without reaching the merits of Sedlacek’s issues. See Miranda, 

2019 S.D. 47, ¶ 15, 932 N.W.2d at 574 (affirming without reaching the merits when 

a general verdict was handed down); Reede, 2017 S.D. 63, ¶ 14, 903 N.W.2d at 745 

 

3. The court used the verdict form proposed by Sedlacek, and although it did not 

include special interrogatories on the theories of liability and Prussman’s 

defenses, it did contain special interrogatories relating to damages.
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(same); Lenards v. DeBoer, 2015 S.D. 49, ¶ 15, 865 N.W.2d 867, 871 (same); Thomas 

v. Sully Cty., 2001 S.D. 73, ¶ 14, 629 N.W.2d 590, 594 (same).4

[¶23.] GILBERTSON, Chief Justice, and KERN, JENSEN, and DEVANEY, 

Justices, concur.

 

4. As these opinions illustrate, our decision here is not an outlier. Rather, it 

follows a clear and consistent body of decisional law that recognizes the 

practical limitations of assessing the prejudice of an asserted error where we 

simply cannot determine the reason for a jury’s verdict among several bases, 

some permissible and some perhaps not.