#24787, #24802-a-JKK 

2009 SD 6 

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

CARYN CARLSON, Plaintiff and Appellant, 

 v. 

THE CONSTRUCTION COMPANY, Defendant and Appellee. 

* * * * 

APPEAL FROM THE CIRCUIT COURT 

OF THE SEVENTH JUDICIAL CIRCUIT 

PENNINGTON COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE JEFF W. DAVIS 

Judge 

* * * * 

AARON D. EIESLAND of 

Johnson Eiesland Law Offices, PC Attorneys for plaintiff 

Rapid City, South Dakota and appellant. 

DONALD A. PORTER 

STEPHEN C. HOFFMAN of 

Costello, Porter, Hill, Heisterkamp, 

 Bushnell & Carpenter, LLP Attorneys for defendant 

Rapid City, South Dakota and appellee. 

* * * * 

 CONSIDERED ON BRIEFS 

 ON JANUARY 12, 2009 

 

 OPINION FILED 02/04/09 
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#24787, #24802 

KONENKAMP, Justice 

[¶1.] In this premises liability action, a contractor employee working at a 

construction site was injured when a piece of sheetrock fell on her foot. The 

employee brought suit alleging that the sheetrock was negligently stored causing 

her injury. The jury returned a verdict in favor of the general contractor and the 

employee appeals. We affirm. 

Background 

[¶2.] Caryn Carlson and her husband operate Superior Insulation, a 

business in Rapid City, South Dakota. On April 17, 2003, Carlson was working at a 

home being constructed by The Construction Company (the Company), a general 

contractor. Standing in the master bedroom were twelve sheets of sheetrock 

stacked on their long edge against an interior wall stud. While preparing the room 

for spray insulation, Carlson placed an empty roll of tape on top of the stacked 

sheetrock. She later testified that after she turned and grabbed the empty roll, a 

110-pound sheet of sheetrock fell on her foot causing serious injury. 

[¶3.] Carlson brought suit against the Company alleging that it negligently 

stacked and stored the sheetrock, causing it to fall and injure her. She claimed that 

the Company knew the sheetrock was not placed in a safe position and failed to 

remove the hazard. She contended that the Company knew the sheetrock was 

stored dangerously because days before her injury, other sheetrock leaning against 

a different wall fell and injured an electrical contractor. Carlson further asserted 

that, based on the instructions accompanying the sheetrock that the sheets should 
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never be stacked on edge or end, and also based on certain industry standards, the 

Company’s placement of the sheetrock on edge was hazardous. 

[¶4.] The Company, on the other hand, contended that stacking sheetrock to 

lean against a wall was not negligent. Rather, the Company argued that it is the 

local custom in Rapid City for construction companies to store sheetrock on edge, 

leaning against a wall. The Company averred that the sheetrock that fell on 

Carlson was stacked neither too vertically nor too far away from the wall, and 

therefore, was safely stored. Moreover, the Company insisted that Carlson’s actions 

caused the sheetrock to fall. One witness testified that when taking Carlson from 

the house after she was injured, Carlson said that the sheetrock fell after she had 

pulled it back when looking for an outlet to tape. 

[¶5.] In the jury trial, Carlson presented safety standards from the 

Occupational Safety and Health Administration (OSHA) and the sheetrock 

manufacturer, both warning that sheetrock should be stored flat. The OSHA 

standards require that materials on a worksite be stored so that normal forces do 

not cause them to fall. And, the manufacturer warned that sheetrock “shall always 

be stacked flat—NEVER on edge or end.” In response, the Company alleged that 

sheetrock stored on edge can be stored safely. Through testimony by various 

witnesses, the Company maintained that it is customary in Rapid City to store 

sheetrock on edge so that it is more manageable for the sheetrocker to use and 

because laying sheetrock flat creates a hazard for those working around it. 

[¶6.] The jury returned a verdict in favor of the Company. Carlson appeals 

asserting that the trial court erred when it (1) failed to direct a verdict against the 
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Company on the issue of negligence, and (2) declined to give her requested 

instruction on the issue of industry custom. The Company presents several issues 

on notice of review, but because we affirm we need not reach them.1

Analysis and Decision 

[¶7.] Carlson asserts that the circuit court abused its discretion when it 

denied her motion for a directed verdict. According to Carlson, there is no dispute 

that the Company failed to safely store the sheetrock because OSHA standards and 

the manufacturer’s instructions set the minimum standard: sheetrock is to be 

1. We review a court’s denial of a directed verdict under the abuse of discretion 

standard. Garland v. Rossknecht, 2001 SD 42, ¶16, 624 NW2d 700, 704 

(citing United States and Hartzell Propeller, Inc. v. South Dakota, 1999 SD 

94, ¶7, 598 NW2d 208, 211). As to jury instructions, we use the following 

standard of review: 

A trial court has discretion in the wording and arrangement of 

its jury instructions, and therefore we generally review a trial 

court’s decision to grant or deny a particular instruction under 

the abuse of discretion standard. See Luke v. Deal, 2005 SD 6, 

¶11, 692 NW2d 165, 168; Parker v. Casa Del Rey-Rapid City, 

Inc., 2002 SD 29, ¶5, 641 NW2d 112, 115. However, no court 

has discretion to give incorrect, misleading, conflicting, or 

confusing instructions: to do so constitutes reversible error if it 

is shown not only that the instructions were erroneous, but also 

that they were prejudicial. First Premier Bank v. Kolcraft 

Enter., Inc., 2004 SD 92, ¶40, 686 NW2d 430, 448 (citations 

omitted). Erroneous instructions are prejudicial under SDCL 

15-6-61 when in all probability they produced some effect upon 

the verdict and were harmful to the substantial rights of a party. 

Accordingly, when the question is whether a jury was properly 

instructed overall, that issue becomes a question of law 

reviewable de novo. Under this de novo standard, “we construe 

jury instructions as a whole to learn if they provided a full and 

correct statement of the law.” Id. ¶40 (quoting State v. Frazier, 

2001 SD 19, ¶35, 622 NW2d 246, 259 (citations omitted)). 

Papke v. Harbert, 2007 SD 87, ¶13, 738 NW2d 510, 515. 
#24787, #24802 

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stored lying flat. Carlson also relies on the fact that the Company was aware that, 

before her injury, sheetrock at the same worksite fell and injured another 

contractor. The Company, on the other hand, argues that Carlson caused the 

sheetrock to fall, not through any negligence on the Company’s part. The Company 

also insists that it is not negligence per se to store the sheetrock on edge and this 

sheetrock was stored in a safe manner. 

[¶8.] We presume that the circuit court’s ruling on a motion for a directed 

verdict is correct and only reverse when there is an abuse of discretion. Garland v. 

Rossknecht, 2001 SD 42, ¶16, 624 NW2d 700, 704 (citing United States and 

Hartzell Propeller, Inc. v. South Dakota, 1999 SD 94, ¶7, 598 NW2d 208, 211). We 

also view the evidence in a light most favorable to the nonmoving party. Id. “‘If any 

legally sufficient basis exists to support a verdict for the nonmoving party, the 

motion must be denied.’” Id. (quoting Jurrens v. Lorenz Mfg. Co., 1998 SD 49, ¶5, 

578 NW2d 151, 153 (citations omitted)). 

[¶9.] Here, we detect no reason to fault the court’s ruling. Whether the 

Company was negligent when it stored the sheetrock on edge was clearly in dispute. 

Carlson presented evidence that sheetrock stored flat would be safer. But the 

Company offered competing evidence that sheetrock can be stored on edge in a safe 

manner. The Company also presented testimony that the sheetrock fell after 

Carlson pulled it back looking for an outlet to tape. The trial court did not abuse its 

discretion when it denied Carlson’s motion for a directed verdict on the issue of 

negligence. 
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[¶10.] Carlson next asserts that the trial court erred when it refused her 

requested instruction that the Company’s compliance with local custom is not the 

reasonable person standard. She contends that by rejecting her requested 

instruction, the jury was left to believe that because the Company complied with 

local custom it could not be liable. Before trial, Carlson moved in limine to prevent 

any testimony, evidence, or reference to the fact that it is an accepted practice in 

Rapid City to stand sheetrock on edge. The court denied the motion and the 

Company’s witnesses consistently testified that it is customary in Rapid City to 

store sheetrock on edge against a wall. Because of the attention drawn to the local 

custom, at the close of the case, Carlson requested a jury instruction stating, 

“Compliance with the local customary standards is not compliance with the 

reasonable person standard.” Carlson’s request was based on this Court’s analysis 

in Zacher v. Budd Co., 396 NW2d 122, 133 (SD 1986). The court denied the 

proposed instruction. 

[¶11.] In Zacher, the trial court instructed the jury that if the defendants 

complied with industry standards they were not liable. Id. at 133-34. On appeal, 

we reversed because an industry standard is merely a factor to be considered, 

rather than conclusive evidence. We also remarked that it is proper to instruct the 

jury that compliance with certain regulations “could be considered as evidence of 

the exercise of reasonable care . . . but was not conclusive on the issue of 

negligence.” Id. at 134. 
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[¶12.] In this case, the circuit court did not instruct the jury in any regard on 

the issue of local customs or industry standards. The instruction submitted to the 

jury on the issue of negligence provided: 

Negligence is the failure to use reasonable care. It is the doing 

of something which a reasonable person would not do, or the 

failure to do something which a reasonable person would do, 

under facts similar to those shown by the evidence. The law 

does not say how a reasonable person should act under facts 

similar to those shown by the evidence. That is for you to 

decide. 

Carlson did not object to this instruction. Nonetheless, the court rejected Carlson’s 

requested instruction because, according to the court, it would have done inversely 

(and erroneously) what was prohibited by this Court in Zacher.2

[¶13.] A court’s failure to give a requested instruction that properly sets forth 

the law constitutes error. Kuper v. Lincoln-Union Elec. Co., 1996 SD 145, ¶32, 557 

NW2d 748, 758 (citing Bauman v. Auch, 539 NW2d 320, 323 (SD 1995)). Although 

the facts of this case might support an instruction similar to the one suggested in 

Zacher, Carlson’s requested instruction was not a correct statement of the law. It 

declared that compliance with local custom “is not compliance with the reasonable 

person standard.” Such statement contradicts our law that the reasonable person 

standard, as indicated by the circuit court’s instructions, is determined by the 

2. The circuit court stated: “The Supreme Court [in Zacher] talks in terms of 

the particular instruction there almost amounting to a directed verdict on 

industry standards, compliance, local customs and those sorts of things, and I 

think your proposed instruction almost does the same thing on the backside 

of this to cause undue attention to the fact that we do have an industry 

statement that is a standard of some sort, I guess, in that you stack 

Sheetrock flat.” 
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evidence and decided by the jury. Because Carlson’s instruction was not a proper 

statement of the law, the court did not abuse its discretion when it rejected it. See 

Lord v. Hy-Vee Food Stores, 2006 SD 70, ¶17, 720 NW2d 443, 449. 

[¶14.] Yet, because Carlson’s proposed instruction raised an important issue, 

should the court have modified or edited the proposal to conform to the law and 

facts of the case? No case in South Dakota has discussed a judge’s duty to modify or 

edit a party’s substantively incorrect proposed jury instruction.3 Nor is there a rule 

imposing such an obligation. SDCL 15-6-51(a) places the duty of requesting jury 

instructions on the parties. Then, the trial court is to propose its instructions before 

final arguments. SDCL 15-6-51(b). The court must also give the parties an 

opportunity to object to the court’s instructions and its actions on the parties’ 

requested instructions. Id.

[¶15.] A number of other jurisdictions have declined to impose a specific duty 

on trial judges to modify or edit a party’s requested instructions in civil cases. 

Garhart ex rel. Tinsman v. Columbia/Healthone, L.L.C., 95 P3d 571, 587 (Colo 2004) 

(citing Hansen v. State Farm Mut. Auto. Ins. Co., 957 P2d 1380, 1384-85 (Colo 

1998)); Downs v. Powell, 108 SE2d 715, 718 (Ga 1959) (“A request to charge must be 

3. In Ballard v. Happy Jack’s Supper Club, the plaintiff submitted a 

handwritten instruction that violated the typewritten requirement of a 

previous version of SDCL 15-6-61(a) (amended in 2006). 425 NW2d 385, 387 

(SD 1988) (citations omitted). The handwritten instruction raised a proper 

and applicable legal principal not specifically addressed by the court’s 

instructions. Id. at 388. Because the instruction, while incorrect in form, 

raised an important and relevant issue of law, we held that the court erred 

when it failed to frame an instruction on the issue properly raised. Ballard is 

distinguishable because the substance of the requested instruction was 

correct. Here, it was not. 
#24787, #24802 

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correct and even perfect; otherwise a refusal to give it is not error.”); Cua v. Ramos, 

433 NE2d 745, 749 (Ind 1982) (“‘unless the party is entitled to have it given in 

terms as prayed, the court may properly refuse it’”) (citation omitted); Duncan v. 

Strating, 99 NW2d 559, 560 (Mich 1959); Winnett v. City of Portland, 847 P2d 902, 

908 (OrCtApp 1993) (citing Beglau v. Albertus, 536 P2d 1251 (Or 1975)); Honsinger 

v. Egan, 585 SE2d 597, 601 (Va 2003) (no duty in civil cases). While acknowledging 

a trial judge’s duty to instruct the jury correctly on the law, appellate courts refuse 

to construe this general duty to require a judge to assume the role of redrafting 

requested civil instructions.4

[¶16.] Based on our review of these cases and South Dakota law, we also 

decline to impose a duty on a judge to modify or rewrite a party’s substantively 

incorrect requested instruction in a civil case. To conclude otherwise would require 

judges to take on an advocate’s duty to frame proposed instructions properly. Minor 

mistakes, of course, such as typographical errors in proposed instructions that 

otherwise correctly state the applicable law, should not be grounds for refusal. 

[¶17.] Because the proposed instruction was justifiably rejected, we must now 

determine if the court’s instructions as a whole correctly stated the law. See First 

Premier Bank v. Kolcraft Enter., Inc., 2004 SD 92, ¶40, 686 NW2d 430, 448. No 

court has discretion to give incorrect, misleading, conflicting, or confusing 

 (continued . . .) 

4. Some courts have held that a duty might exist. However, those cases applied 

Federal Rule 51 and expressed the notion that a court’s duty to instruct on 

the applicable law cannot be excused by a technically defective request. 

Dahlgren v. United States, 553 F2d 434, 440 (5thCir 1977) (criminal case 

relying on Wright and Miller, Federal Practice and Procedure); Emery v. 
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__________________ 

(. . . continued) 

instructions. Id. Here, the court’s negligence instruction informed the jury that the 

law does not say how a reasonable person should act, but that it, the jury, is to 

decide whether the Company acted reasonably under the facts shown by the 

evidence. While the jury might have been assisted with an instruction that 

compliance with a local custom or industry standard is only a factor to be 

considered, we cannot say that the absence of this instruction made the court’s 

ultimate instructions incorrect, misleading, conflicting, or confusing. Based on the 

evidence presented, it was within the jury’s province to determine whether it was 

reasonable for the Company to store sheetrock as it did. 

[¶18.] Affirmed. 

[¶19.] GILBERTSON, Chief Justice, and ZINTER and MEIERHENRY, 

Justices, and SABERS, Retired Justice, concur. 

Northern Pac. R.R. Co., 407 F2d 109, 112 n3 (8thCir 1969); Chavez v. Sears, 

Roebuck & Co., 525 F2d 827, 830 (10thCir 1975).