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PATTERN JURY INSTRUCTIONS

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					                              PATTERN JURY INSTRUCTIONS

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                                                                          2-12

EXPERT TESTIMONY—QUALIFICATIONS OF EXPERT
______________________________________________________________________________

        A witness may qualify as an expert and give an opinion on a matter at issue if the witness
has special knowledge, skill, experience, training, or education concerning the matter on which
the expert testifies. In deciding the weight to give to the opinion, you should consider the expert's
qualifications, credibility, and reasons for the opinion. You are not bound by the opinion. If you
decide that the reasons for the expert’s opinion are unsound, or that other evidence outweighs the
opinion, you may disregard the opinion entirely.

References:
SDCL ch. 19-15
State v. Moeller, 2000 SD 122, 616 NW2d 424
Estate of Dokken, 2000 SD 9, 604 NW2d 487
State v. Hofer, 512 NW2d 482 (SD 1994)
Johnson v. Schmitt, 309 NW2d 838 (SD 1981)
State By & Through Dept. of Trans. v. Richey Motor Co., 296 NW2d 505 (SD 1980)
Drier v. Perfection Inc., 259 NW2d 496 (SD 1977)
Engberg v. Ford Motor Co., 87 SD 196, 205 NW2d 104 (1973)
Podio v. American Colloid Co., 83 SD 528, 162 NW2d 385 (1968)
Oviat v. Oviat Dairy, 80 SD 83, 199 NW2d 649 (1963)
California Jury Instructions (Civil) (BAJI 7th Ed) 2.40
Federal Jury Practice and Instructions, Devitt, Blackmar & Wolff (4th Ed) § 72.08
23A AmJur Pleading and Practice Forms (Rev), Trial, § 199
75A AmJur2d, Trial, §§ 1190, 1226
Key: Trial, 235(7); Evidence, 569, 570

Comment:
        In State v. Hofer, supra, the South Dakota Supreme Court adopted the test established by
the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579
(1993), concerning the admissibility of expert testimony. Only when the Daubert test has been
met is the jury allowed to consider expert testimony and the above instruction given.

(Revised 2001)
______________________________________________________________________________
                                                                        30-03-4

DAMAGES—AGGRAVATION OF PRE-EXISTING INJURY OR CONDITION— NON-
APPORTIONMENT EXCEPTION
______________________________________________________________________________

        If you find that the plaintiff is entitled to recover for an aggravation of a pre-existing
[injury] [condition], but you cannot logically, reasonably or practically apportion the plaintiff’s
present and future injuries between the injury caused by the pre-existing [injury] [condition] and
the aggravation caused by the defendant’s conduct, then you may award damages for all present
and future injuries caused by both the pre-existing [injury] [condition] and the defendant’s
conduct.

Reference:
Shippen v. Parrot, 553 NW2d 503 (SD 1996)
Restatement of the Law 2d, Torts § 433A

(New 2001)
______________________________________________________________________________
                                                                         30-05

DAMAGES—PAIN AND SUFFERING—PAST AND FUTURE
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        The pain and suffering, [mental anguish] [and loss of capacity of the enjoyment of life]
experienced in the past [and reasonably certain to be experienced in the future] as a result of the
injury.

Reference:
Keegan v. First Bank of Sioux Falls, 470 NW2d 621 (SD 1991)
Small v. McKennan Hospital, 437 NW2d 194 (SD 1989)
Wangen v. Knudson, 428 NW2d 242 (SD 1988) (Mental Suffering)
Shamburger v. Behrens, 418 NW2d 299 (SD 1988) as to future pain and loss of earnings
Pollman v. Ahrens, 88 SD 249, 218 NW2d 475 (1974)
Egan v. Sheffer, 86 SD 684, 201 NW2d 174 (1972)
Koenig v. Weber, 84 SD 558, 174 NW2d 218 (1970)
Plank v. Heirigs, 83 SD 173, 156 NW2d 193 (1968)
Gould v. Mans, 82 SD 574, 152 NW2d 92 (1967)
Hoekstra v. Helgeland, 78 SD 82, 98 NW2d 669 (1959)
Bean v. Best, 77 SD 433, 93 NW2d 403 (1958)
Davis v. Holy Terror Min. Co., 20 SD 399, 107 NW 374 (1906)
Bethel v. Janis, 597 FSupp 56 (DSD 1984)
California Jury Instructions, (Civil) (BAJI 8th Ed) 14.13
Illinois Pattern Jury Instructions, No. 30.05
Minnesota Jury Instruction Guides, No. 155, 158
Nebraska Pattern Jury Instructions, No. 4.04
Federal Jury Practice and Instructions, Devitt, Blackmar & Wolff, § 85.02
22 AmJur2d (Rev), Damages, §§ 239 et seq.
Key: Damages, 95, 96, 97, 216(4), 216(7), 226

Comment:
        This instruction is to be inserted between the two paragraphs of Instruction 30-01 when
the evidence justifies its use.
        To include the bracketed material which relates to future pain and suffering, there must
be evidence that such pain and suffering is reasonably certain to occur in the future. See
Instruction 34-01.
        Our Court has held that there are two rules that apply in reference to damages for future
detriment. If the injury is objective and is plainly apparent from the nature of the injury, then the
jury may allow for future pain and suffering without medical testimony. Where the injury is
subjective and of a nature that layperson cannot with reasonable certainty know whether or not
there will be future pain and suffering, then there must be evidence of expert witnesses learned in
human anatomy, who can testify from a personal examination, or knowledge of, history of the
case, or from a hypothetical question based on the facts. Peters v. Hoisington, 72 SD 542, 37
NW2d 410 (1949); McGovern v. Murray Taxi Co., 75 SD 151, 60 NW2d 211 (1953); Klein v.
Hodgman, 85 NW2d 289 (1957).
                                                                                    30-05 continued

        Although it would have been proper for the trial court to have stated in express words to
the jury that damages could only be awarded for conscious pain, the effect of the instruction
given was to tell the jury that plaintiff could recover only for the pain of which [the plaintiff] was
conscious, i.e., that which [the plaintiff] experienced. Egan v. Sheffer, 86 SD 684, 201 NW2d
174, 178 (1972) citing Plank v. Heirigs, 83 SD 173, 156 NW2d 193 (1968).
        Regarding the use of mathematical formulas to calculate damages for pain and suffering,
the South Dakota Supreme Court has stated:
Of all the items of compensatory damages which it may become the duty of a court or jury to
asses, that which will compensate for human pain and suffering is perhaps the most difficult to
determine. Such determination is susceptible of no mathematical or rule of thumb computation,
and no substitute for simple human evaluation has been authoritatively suggested.
Plank v. Heirigs, 83 SD 173, 156 NW2d 193 (1968) (quoting Flory v. New York Central
Railroad Co., 163 NE2d 902 (Ohio 1959)).
        See also King v. Railway Express Agency, Inc., 107 NW2d 509 (ND 1961) (improper to
use mathematical formula to calculate pain and suffering); and Affett v. Milwaukee & Suburban
Transport Corp., 106 NW2d 274 (Wis. 1960) (same).

(Revised 2001)
______________________________________________________________________________
                                                                         30-06

DAMAGES—MEDICAL EXPENSE—PAST AND FUTURE
______________________________________________________________________________

        The reasonable value of necessary medical care, treatment, and services received [and the
reasonable value of the necessary expense of medical care, treatment and services reasonably
certain to be received in the future.]

Reference:
Gilkyson v. Wheelchair Express, Inc., 1998 SD 45, ¶21, 579 NW2d 6
California Jury Instructions, (BAJI 8th Ed) 14.10
Federal Jury Practice and Instructions, Devitt, Blackmar & Wolff (4th Ed), § 85. 04
25 CJS, Damages, § 47(2)
Annotation: 12 ALR 3d 1347, Medical Expenses—Reasonableness
Annotation: 69 ALR 2d 1261, Future Medical Expenses—Proof
Key: Damages, 43, 216(9)

Comment:
        This instruction is to be inserted between the two paragraphs of Instruction 30-01 when
the evidence justifies its use.
        Degan v. Bayman, 241 NW2d 703 (SD 1976), held that plaintiff was entitled to recover
the reasonable value of medical care received, even though it was gratuitously provided because
the provision of the care came from a collateral source. There is, however, authority from other
jurisdictions which holds that the portion of a health care provider's medical fee that is written
off because of the contract with the health insurer is not a collateral source for purposes of the
collateral source rule. State Farm Mutual Auto Ins. Co. v. Bowers, 255 Va. 581, 500 SE2d 212
(1998).

(Revised 2006)
______________________________________________________________________________
                                                                         30-07

DAMAGES — PAST LOSS OF EARNINGS
______________________________________________________________________________

        The earnings the plaintiff has lost, if any, from any source from the date of the injury
until the date of trial.

Reference:
Byre v. Wieczorek, 85 SD 645, 190 NW2d 57 (1971),
appeal after remand, 88 SD 185, 217 NW2d 151 (1974)
Allen v. Martley, 77 SD 133, 87 NW2d 355 (1958)
Simmons v. Leighton, 60 SD 524, 244 NW 883 (1932)
Burlington Transp. Co. v. Josephson, 153 F2d 372 (8th Cir 1946)
California Jury Instructions, (Civil) (BAJI 7th Ed) 14.11
Illinois Pattern Jury Instructions, No. 30.07
Iowa Uniform Jury Instructions, No. 3.8
Minnesota Jury Instruction Guides, No. 157
Federal Jury Practice and Instructions, Devitt, Blackmar & Wolff, § 85
22 AmJur2d (Rev), Damages, §§ 151-156, 939
25 CJS, Damages, § 38
Key: Damages, 37, 99

Comment:
        Occasional confusion has resulted between two distinct factors of damage: (1) loss of
earnings suffered up to the time of trial, and (2) detriment to be suffered in the future from loss
of earning capacity. This instruction deals with the former, while the following Instructions 30-
07-1(A) and 30-07-1(B) deals with the latter. The latter need not be specially pleaded since it is
an element of general damages. Allen v. Martley, 77 SD 133, 87 NW2d 355 (1958). However,
loss of earnings must be specially pleaded and is capable of fairly definite and certain proof.
Simmons v. Leighton, 60 SD 524, 244 NW 883 (1932).

(Revised 2002)
______________________________________________________________________________
                                                                      30-07-1A

DAMAGES—LOSS OF EARNING CAPACITY—PAST EARNINGS
______________________________________________________________________________

       The factors to be considered in determining the measure of damages for loss of earning
capacity include what the plaintiff earned before the injury and what the plaintiff is capable of
earning after the injury, the prior ability of the plaintiff and the extent to which the injuries affect
power to earn, age, life expectancy, physical condition, occupation, skill, and habits of industry.

Reference:
Davis v. Knippling, 1998 SD 31, ¶17, 576 NW2d 525 (business income may be relevant in
determining loss of earning capacity)
Stormo v. Strong, 469 NW2d 816 (SD 1991)
Martino v. Park Jefferson Racing Ass'n., 315 NW2d 309 (SD 1982)
Watkins v. Ebach, 291 NW2d 765 (SD 1980): present value instruction SDPJI 30-07-2
Byre v. Wieczorek, 85 SD 645, 190 NW2d 57 (1971), appeal after remand, 88 SD 185, 217
NW2d 151 (1974)
Nepstad v. Randall, 82 SD 615, 152 NW2d 383 (1967)
Weidner v. Lineback, 82 SD 8, 140 NW2d 597 (1966)
Allen v. Martley, 77 SD 133, 87 NW2d 355 (1958)
California Jury Instructions, (BAJI 8th Ed) 14.12
Minnesota Jury Instruction Guides, No. 160
Federal Jury Practice and Instructions, Devitt, Blackmar & Wolff (4th Ed), § 85.07
22 AmJur2d 462 (Rev), Damages, §§ 1013-1014
CJS, Damages, §185
Annotation: 18 ALR3d 88, Evidence—Impaired Earning Capacity
Key: Damages, 100

Comment:
        Loss of earning capacity is one of the natural and necessary consequences of a disabling
injury. Allen v. Martley, supra. Therefore, this instruction should only be given when it appears
from the evidence that the injury is disabling, whether temporary or permanent. Where the
plaintiff has suffered no disability, Instruction 30-07 is sufficient.

(Revised 2001)
______________________________________________________________________________
                                                                      30-07-1B

DAMAGES—LOSS OF EARNING CAPACITY—NO PAST EARNINGS
______________________________________________________________________________

        Such sum as will reasonably compensate plaintiff for whatever loss of earning capacity
you find that the plaintiff has suffered as a result of the injury.
        In determining the plaintiff's loss of earning capacity, you may consider such factors as
the nature and extent of the injury, age, life expectancy, talents, skill, experience, training,
education, and industry.
        [The fact that the plaintiff is earning more money now than earned before the accident
does not defeat the right to recover for impaired earning capacity reasonably certain to be
suffered during the remainder of life expectancy.]

Reference:
Stormo v. Strong, 469 NW2d 816 (SD 1991)
Martino v. Park Jefferson Racing Ass'n., 315 NW2d 309 (SD 1982)
Degen v. Bayman, 90 SD 400, 241 NW2d 703 (1976)
Weidner v. Lineback, 82 SD 8, 140 NW2d 597 (1966)
Allen v. Martley, 77 SD 133, 87 NW2d 355 (1958)
California Jury Instructions, (Civil) (BAJI 7th Ed) 14.12
Minnesota Jury Instruction Guides, No. 160
Federal Jury Practice and Instructions, Devitt, Blackmar & Wolff, §85.07
CJS, Damages, §185
18 ALR3d 88, Evidence - Impaired Earning Capacity
Key: Damages, 100

Comment:
        This instruction should be given when there is no history of past earnings such as with a
minor child or a homemaker.
        The material in the parenthesis should be given where evidence of that nature has been
introduced. As the court stated in the Weidner case:
        The mere fact plaintiff is earning more money now than [the plaintiff] earned before the
accident does not defeat [the plaintiff's] right to recover for impaired earning power reasonably
certain to be suffered during the remainder of [the plaintiff's] life expectancy. It is a matter of
common knowledge that earning power would be greater if [the plaintiff] were full bodied and
uninjured.

(Renumbered 2001)
______________________________________________________________________________
                                                                        30-07-2

DAMAGES—PRESENT VALUE
______________________________________________________________________________

         If you should find that the plaintiff is entitled to a verdict, and further find that the
evidence in the case establishes either:
         (1)     a reasonable likelihood of future medical expense;
         (2)     a reasonable likelihood of loss of future earnings; or
         (3)     a reasonable likelihood that the plaintiff's spouse is entitled to a verdict for
                 deprivation of the services, aid, comfort, society, companionship, and conjugal
                 affections of the spouse;
then it becomes your duty to ascertain the present value in dollars of such future damage, since
the award of future damages necessarily requires that payment be made now for a loss that will
not actually be sustained until some future date.
         Under these circumstances, the result is that the plaintiff will in effect be reimbursed in
advance of the loss, and so will have the use of money which the plaintiff would not have
received until some future date, but for the verdict.
         In order to make a reasonable adjustment for the present use of money representing a
lump-sum payment of anticipated future loss, the law requires that you discount, or reduce to its
present value, the amount of the anticipated future loss, by taking (1) the interest rate or return
which such plaintiff could reasonably be expected to receive on an investment of the lump-sum
payment together with (2) the period of time over which the future loss is reasonably certain to
be sustained; and then reduce, or in effect deduct from, the total amount of future loss that
amount which would be reasonably certain to earn or return, if invested at such rate of interest
over such period of time; and include in the verdict an award for only the present worth—the
reduced amount—on anticipated future loss.
         This computation is made by using the so-called "present-value" table which is attached
to this instruction for your use.
         Bear in mind that your duty to discount to present value applies only to loss of (future
earnings), (future medical expenses), and (loss of consortium only). Damages for future pain and
suffering, future mental anguish, disability, and disfigurement are not subject to any reduction
for the present use of such money.
         (There has been evidence presented to you concerning the claim for (future medical
expenses) (future earnings) (loss of consortium) in the form of expert testimony. However, it is
your duty to determine whether the expert's adjustment for present value was reasonable, and if
not, you should make your own adjustment for present value of any such you determine the
plaintiff is entitled for the above losses, if any.)
         Finally, in determining the present value of future damages, loss of past or future
earnings, you may also take into consideration the effect of inflation or deflation on the future
damages.

References:
Howard v. Sanborn, 483 NW2d 796 (SD 1992)
Flagtwet v. Smith, 367 NW2d 188 (SD 1985)
Watkins v. Ebach, 291 NW2d 765 (SD 1980)
Federal Jury Practice and Instructions, Devitt, Blackmar & Wolff (4th Ed), § 85-11
Key: Damages, 210(l), 216(8)

                                                                           30-07-2 continued

Comment:
       In Howard v. Sanborn, the South Dakota Supreme Court held that expert testimony is not
required in every case where future earnings might be awarded. Where no expert is used, the
Court suggested the jury be provided with tables or "some other helpful means to reduce to
present value."

(Reviewed 2001)
______________________________________________________________________________
                                                                         30-08

DAMAGES—MINOR PLAINTIFF—LOSS OF FUTURE EARNINGS OR PROFIT
______________________________________________________________________________

        The present cash value of earnings reasonably certain to be lost in the future after the
plaintiff has reached the age of majority, 18 years of age.

Reference:
SDCL 25-5-7—Parents entitled to minor's earnings
SDCL 26-1-1—Age of majority
Shockley v. Prier, 66 WI2d 394, 225 NW2d 495 (1975)
California Jury Instructions, (BAJI 8th Ed) 14.30-14.32
Illinois Pattern Jury Instructions, No. 30.08
22 AmJur2d (Rev), Damages, §§ 191-193
25 CJS, Damages, § 40
25a CJS, Damages, § 185(6)
32 ALR2d 1064, Damages—Infant-Parent
Key: Damages, 99, 226, Parent and Child, 7(14)

Comment:
        This instruction is to be inserted between the two paragraphs of Instruction 30-01 when
the evidence justifies its use.
        Before the ages above mentioned, the parents are entitled to the earnings if the minor is
unemancipated.
        In action for damages arising out of an injury to unemancipated minor, the loss of
earnings during the child's minority are recoverable by the parents. The child, therefore, is
limited to the loss of earnings the child would have received after reaching majority. The usual
practice is to sue for these damages in the minor's action. This is accomplished by alleging an
assignment or waiver or relinquishment by the parents of their right to recover these damages.
(See comment in Illinois Pattern Instructions, page 145.)
        Our law provides, SDCL 25-5-11 and 25-5-12, that parents may relinquish to a child the
right of controlling and receiving the child's earnings. Wages may be paid to a minor until the
parent or guardian entitled thereto gives the employer notice that of claims to such wages.
        A jury is privileged to infer, from the parent's right to earnings of a child during minority,
pecuniary damage to parents in an action by the parents based upon the child's wrongful death.
Schwan v. Premack, 70 SD 371, 17 NW2d 911 (1945).

(Revised 2001)
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                                                                         30-09

DAMAGES—CARETAKING EXPENSE—PAST AND FUTURE
______________________________________________________________________________

         The reasonable value of necessary household service, nursing, and attendance [, even if
such services were furnished gratuitously by family members or others,] which has been required
as a result of the injury [and the value of such services reasonably certain to be required in the
future].

References:
Estate of He Crow v. Jensen, 494 NW2d 186 (SD 1992)
Stormo v. Strong, 469 NW2d 816 (SD 1991)
25 CJS Damages, § 40, et seq.
22 AmJur2d Damages, § 209

Comment:
        This instruction is to be inserted between the two paragraphs of Instruction 30-01 when
the evidence justifies its use.
        To include the bracketed material, which related to future caretaking expense, there must
be evidence that such services are reasonably certain to be provided in the future.
        Where a recovery is allowed for nursing and attendance furnished by members of the
injured person's family or others, the recovery is to be measured by what is customarily charged
for similar work. Stormo v. Strong, 469 NW2d 816 (SD 1991); South v. National R.R. Passenger
Corp., 290 NW2d 819, 841-42 (ND 1980) and authority cited therein; Hommel v. Badger State
Inv. Co., 166 Wis. 235, 165 NW 20 (1917); Scurlock v. City of Boone, 142 Iowa 684, 121 NW
369 (1909); 25 CJS Damages, § 40, et seq.; 22 AmJur2d Damages, § 209, p. 177.
        See Instruction 30-07-2 on reduction to present cash value.
        On the issue of whether evidence of the reasonable value of the services provided needs
to be presented during trial, lawyers and judges should review and compare Stormo v. Strong,
469 NW2d 816 (SD 1991), and Estate of He Crow v. Jensen, 494 NW2d 186 (SD 1992).
        In Stormo v. Strong, an instruction was given directing the jurors to fix the amount of the
reasonable value of past necessary home health care services based on "what is customarily
charged for similar work, according to your common knowledge." The Supreme Court held,
"We cannot say the Trial Court erred in instructing the jury to use its common knowledge to
determine the amount of damages for home health care. However, it would be a better practice to
present some testimony on the reasonable value of the services actually provided. Trial Courts
would be well advised in cases such as this to submit special interrogatories to the jury regarding
the amount awarded for each element of damages. Such a practice would eliminate confusion
over what par of the award, if any, was for such services and aid in meaningful appellate
review."
        In Estate of He Crow v. Jensen, a wrongful death action, the Supreme Court ruled that it
was error for the Estate's attorney to request a damage award for future pecuniary damages
without testimony as to the monetary value for the pecuniary loss of the decedent's services.

(Revised 2001)
______________________________________________________________________________
                                                                         30-22

PRESENT VALUE CALCULATIONS
______________________________________________________________________________

        The attached tables may be used to calculate the present value of future expenses. This
calculation requires that you make three determinations.
        First, determine the number of years that the future expenses will be incurred. That
number is designated as "n" in the attached tables.
        Then, determine the net discount rate. That net discount rate is the interest rate which
plaintiff could reasonably be expected to receive on an investment of the lump-sum payment
minus the inflation rate.
        Finally, determine the annual amount of the future expenses to be incurred, without
consideration of inflation.
        Using the number of years (n value) and the net discount rate, ascertain the factor from
the table. Multiply the annual amount of the future expenses by the appropriate factor from the
table to calculate the present value of those future expenses.

Comment:
        The following examples may illustrate the use of the present value tables.
        Assuming annual expenses of $100 per year for a period of seven years at a net discount
rate of 2 percent, the present value of those future expenses is $100 times 6.4720 or $647.20.
        Future expenses of $200 per year for a period of 11 years at a 4 percent net discount rate
would yield a present value of 8.7605 times $200 equals $1,752.10.
        Lost future income of $3,000 per year for a period of 16 years at a 6 percent net discount
rate would yield a present value of 10. 1059 times $3,000 equals $30,317.70.
        The court may desire to publish examples to the jury to illustrate the use of the present
value tables.

(Revised 2004)
                             PRESENT VALUE CALCULATIONS
                  PRESENT VALUE OF 1 PER PERIOD RECEIVED FOR n PERIODS
                                      (Uniform Series)

n      1%          2%        3%        4%        5%        6%        7%        8%
1      0.9901      0.9804    0.9709    0.9615    0.9524    0.9434    0.9346    0.9259
2      1.9704      1.9416    1.9135    1.8861    1.8594    1.8334    1.8080    1.7833
3      2.9410      2.8839    2.8286    2.7751    2.7232    2.6730    2.6243    2.5771
4      3.9020      3.8077    3.7171    3.6299    3.5460    3.4651    3.3872    3.3121
5      4.8534      4.7135    4.5797    4.4518    4.3295    4.2124    4.1002    3.9927
6      5.7955      5.6014    5.4172    5.2421    5.0757    4.9173    4.7665    4.6229
7      6.7282      6.4720    6.2303    6.0021    5.7864    5.5824    5.3893    5.2064
8      7.6517      7.3255    7.0197    6.7327    6.4632    6.2098    5.9713    5.7466
9      8.5660      8.1622    7.7861    7.4353    7.1078    6.8017    6.5152    6.2469
10     9.4713      8.9826    8.5302    8.1109    7.7217    7.3601    7.0236    6.7101
11     10.3676     9.7868    9.2526    8.7605    8.3064    7.8869    7.4987    7.1390
12     11.2551     10.5753   9.9540    9.3851    8.8633    8.3838    7.9427    7.5361
13     12.1337     11.3484   10.6350   9.9856    9.3936    8.8527    8.3577    7.9038
14     13.0037     12.1062   11.2961   10.5631   9.8986    9.2950    8.7455    8.2442
15     13.8651     12.8493   11.9379   11.1184   10.3797   9.7122    9.1079    8.5595
16     14.7179     13.5777   12.5611   11.6523   10.8378   10.1059   9.4466    8.8514
17     15.5623     14.2919   13.1661   12.1657   11.2741   10.4773   9.7632    9.1216
18     16.3983     14.9920   13.7535   12.6593   11.6896   10.8276   10.0591   9.3719
19     17.2260     15.6785   14.3238   13.1339   12.0853   11.1581   10.3356   9.6036
20     18.0456     16.3514   14.8775   13.5903   12.4622   11.4699   10.5940   9.8181
21     18.8570     17.0112   15.4150   14.0292   12.8212   11.7641   10.8355   10.0168
22     19.6604     17.6580   15.9369   14.4511   13.1630   12.0416   11.0612   10.2007
23     20.4558     18.2922   16.4436   14.8568   13.4886   12.3034   11.2722   10.3711
24     21.2434     18.9139   16.9355   15.2470   13.7986   12.5504   11.4693   10.5288
25     22.0232     19.5235   17.4131   15.6221   14.0939   12.7834   11.6536   10.6748
26     22.7952     20.1210   17.8768   15.9828   14.3752   13.0032   11.8258   10.8100
27     23.5596     20.7069   18.3270   16.3296   14.6430   13.2105   11.9867   10.9352
28     24.3164     21.2813   18.7641   16.6631   14.8981   13.4062   12.1371   11.0511
29     25.0658     21.8444   19.1885   16.9837   15.1411   13.5907   12.2777   11.1584
30     25.8077     22.3965   19.6004   17.2920   15.3725   13.7648   12.4090   11.2578
31     26.5423     22.9377   20.0004   17.5885   15.5928   13.9291   12.5318   11.3498
32     27.2696     23.4683   20.3888   17.8736   15.8027   14.0840   12.6466   11.4350
33     27.9897     23.9886   20.7658   18.1476   16.0025   14.2302   12.7538   11.5139
34     28.7027     24.4986   21.1318   18.4112   16.1929   14.3681   12.8540   11.5869
35     29.4086     24.9986   21.4872   18.6646   16.3742   14.4982   12.9477   11.6546
36     30.1075     25.4888   21.8323   18.9083   16.5469   14.6210   13.0352   11.7172
37     30.7995     25.9695   22.1672   19.1426   16.7113   14.7368   13.1170   11.7752
38     31.4847     26.4406   22.4925   19.3679   16.8679   14.8460   13.1935   11.8289
39     32.1630     26.9026   22.8082   19.5845   17.0170   14.9491   13.2649   11.8786
40     32.8347     27.3555   23.1148   19.7928   17.1591   15.0463   13.3317   11.9246
41     33.4997     27.7995   23.4124   19.9931   17.2944   15.1380   13.3941   11.9672
42     34.1581     28.2348   23.7014   20.1856   17.4232   15.2245   13.4524   12.0067
43     34.8100     28.6616   23.9819   20.3708   17.5459   15.3062   13.5070   12.0432
44     35.4555     29.0800   24.2543   20.5488   17.6628   15.3832   13.5579   12.0771
45     36.0945     29.4902   24.5187   20.7200   17.7741   15.4558   13.6055   12.1084
46     36.7272     29.8923   24.7754   20.8847   17.8801   15.5244   13.6500   12.1374
47     37.3537     30.2866   25.0247   21.0429   17.9810   15.5890   13.6916   12.1643
48     37.9740     30.6731   25.2667   21.1951   18.0772   15.6500   13.7305   12.1891
49     38.5881     31.0521   25.5017   21.3415   18.1687   15.7076   13.7668   12.2122
50     39.1961     31.4236   25.7298   21.4822   18.2559   15.7619   13.8007   12.2335

(Reviewed 2004)
______________________________________________________________________________
                                                                         31-01

DAMAGES - WRONGFUL DEATH OF AN ADULT
______________________________________________________________________________

        If you find that the plaintiff is entitled to recover, you must then fix the amount of money
which will reasonably and fairly compensate the (surviving spouse)(children)(next of kin) of the
decedent for their pecuniary loss as a result of the death of the decedent.
        In determining pecuniary loss, you may consider what benefits of pecuniary value,
including money, goods and services, the (surviving spouse) (children)(next of kin) might
reasonably have expected to receive from the decedent had the decedent lived, bearing in mind,
the following:
        (1)     The decedent's contributions in the past;
        (2)     The decedent's life expectancy at the time of death;
        (3)     The decedent's health, age, habits, talents, and success;
        (4)     The decedent's occupation;
        (5)     The decedent's past earnings;
        (6)     The decedent's likely future earnings; and prospects of bettering (himself)
                (herself) had the decedent lived;
        (7)     The decedent's personal living expenses, that is those amounts decedent
                customarily spent on (himself)(herself);
        (8)     The decedent's legal obligations to support the (surviving spouse) (children)(next
                of kin) and the likelihood of fulfilling that obligation;
        (9)     All reasonable expenses incurred for a funeral and for burial or other disposition
                of decedent's body;
        (10) The instruction, moral training and superintendence of education decedent might
                reasonably have given the decedent's (child)(children) had the decedent lived;
        (11) The counsel, guidance and aid decedent would reasonably have given the
                (surviving spouse)(next of kin) had the decedent lived;
        (12) The life expectancy, health and physical condition of the (surviving
                spouse)(children)(next of kin);
        (13) The loss of advice, assistance, companionship, society and protection the
                decedent would reasonably have given the (surviving spouse)(next of kin) had the
                decedent lived.

NOTE ON USE:
        This instruction should be given along with Instruction 31-03 relating to the elements the
jury should disregard in assessing damages and along with Instruction 31-05 relating to the fact
that the action is brought by the personal representative on behalf of the widow and children or if
there be none on behalf of the parents and next of kin. Instruction 31-04 should be given if there
is more than one beneficiary.
                                                                   31-01 continued
Reference:
SDCL 21-5-5
SDCL 21-5-7
Sander v. Geib, Elston, Frost Pro. Ass'n, 506 NW2d 107 (SD 1993)
Estate of He Crow v. Jensen, 494 NW2d 186 (SD 1992)
Flagtwet v. Smith, 393 NW2d 452 (SD 1986)
Flagtwet v. Smith, 367 NW2d 188 (SD 1985)
Krumm v. Feuerhelm, 298 NW2d 184 (SD 1980)
Gilbert v. Root, 294 NW2d 431 (SD 1980)
Anderson v. Lale, 88 SD 111, 216 NW2d 152 (1974)
Plank v. Heirigs, 83 SD 173, 156 NW2d 193 (1968)


(Revised 2004)
______________________________________________________________________________
                                                                         31-02

DAMAGES - WRONGFUL DEATH OF MINOR CHILD
______________________________________________________________________________

        If you find that the plaintiff is entitled to recover, you must then fix the amount of money
which will fairly compensate the (parents)(brothers and sisters) (next of kin) of the decedent for
(his)(her)( their) pecuniary loss as a result of the death of the decedent.
        Where a minor child dies leaving (a) surviving parent(s), the law recognizes a
presumption that the parent(s) (has)(have) sustained a pecuniary loss from the time of death of
the decedent until the decedent would have reached the age of 18 years. There is no presumption
of pecuniary loss to any other person.
        In determining pecuniary loss to any heir and the weight to be given to the presumption
of pecuniary loss to the surviving parent(s), you may consider what benefits of pecuniary value
including moneys, goods, and services, the heir(s) might reasonably have expected to receive
from the decedent had the decedent lived. You may also consider what pecuniary loss any heir
has suffered and is reasonably certain to continue to suffer in the future by being deprived of the
advice, companionship, society, assistance, and protection of the decedent. As an offset against
the factors of loss mentioned, you may take into consideration any cost that would have been
incurred by the heir to support and educate the decedent had the decedent lived.
        In weighing these matters, you may consider the age of the decedent and of each heir, the
state of health and physical condition of the decedent and of each heir as of the time of the
decedent’s death and immediately prior thereto; their station in life; their respective life
expectancies as shown by the evidence; the disposition of the decedent, whether it was kindly,
affectionate or otherwise; whether or not the decedent showed a likelihood of contributing to the
support of the heir(s); the earning capacity of the heir(s) and of the decedent; and all other facts
in evidence that throw light upon the question of pecuniary loss.

NOTE ON USE:
         This instruction should be given along with Instruction 31-03 relating to the elements the
jury should disregard in assessing damages and along with Instruction 31-05 relating to the fact
that the action is brought by the personal representative on behalf of the parents and siblings, or
if there be none, on behalf of next of kin. Instruction 31-04 should be given if there is more than
one beneficiary.

Reference:
SDCL ch. 21-5
Wiersma v. Maple Leaf Farms, 1996 SD 16, 543 NW2d 787
Gilbert v. Root, 294 NW2d 431 (SD 1980)
Anderson v. Lale, 88 SD 111, 216 NW2d 152 (1974)
Halvorsen v. Dunlap, 495 F2d 817 (8th Cir 1974)
Fries v. Stieben, 455 FSupp 1204 (DSD 1978)
Key: Death, 104(6)
                                                                                      31-02 continued
Comment:
         Anderson v. Lale, 88 SD 111, 216 NW2d 152 (1974) involved the wrongful death action
by father, as special administrator, to recover for the death of a seven-year-old girl. In that case,
the South Dakota Supreme Court affirmed the award of $16,500.00. In so holding, the Supreme
Court stated:
It is the contention of the defendant that it was the intention of the legislature in making the 1967
changes to return to a more restrictive measure of damages in wrongful death actions of prior
times. We believe that the wrongful death statute is remedial in character and, therefore, should
be construed liberally in light of current social conditions. We, therefore, do not feel constraint to
follow our past decisions.
Id. at 155-156.
         The Anderson court went on to state:
[T]he better rule is to include loss of companionship, society, advice, assistance and protection as
elements of damages in wrongful death cases wherein the decedent was a minor ... .
We are also of the opinion that the 1967 legislature was well aware of the newer interpretations
of pecuniary loss of injury, and it was their intention to only eliminate any recovery for sorrow,
mental distress and grief suffered by the parents or any pain or suffering on the part of the
decedent.
Id. at 158.
         The Anderson court then stated:
 We, therefore, hold that in a wrongful death action, wherein the decedent was a minor, it is
proper for the court to instruct the jury that loss of companionship and society which may be
expressed, but is not limited to, the words "advice," "assistance" and "protection" are proper
elements of damage for them to consider in reaching their verdict. We note that the word
"comfort" was used in the instruction given in this case. Comfort may connotate alleviation of
mental distress and we, therefore, find it objectionable since if an award for mental distress of the
parents is not permitted, confusion may arise. It is, however, only harmless error.
Id. at 158-59.

(Revised 2004)
______________________________________________________________________________
                                                                        31-02-1

DAMAGES - WRONGFUL DEATH OF ADULT CHILD
______________________________________________________________________________

         If you find that the plaintiff(s) is (are) entitled to recover, you must then fix the amount of
money which will fairly compensate the (parents)(brothers and sisters)(next of kin) of the
decedent for their pecuniary loss as a result of the death of the decedent.
         The Plaintiff(s) (is) (are) not required to show that the heir(s) were economically
dependant upon the decedent at the time of (his)(her) death in order to prove pecuniary loss. In
determining pecuniary loss to an heir of the decedent, you may consider what benefits of
pecuniary value including moneys, goods, and services, the heir might reasonably have expected
to receive from the decedent had the decedent lived. You may also consider what pecuniary loss
the heir(s) suffered and (is)(are) reasonably certain to suffer in the future, by being deprived of
the advice, companionship, society, assistance, and protection of the decedent.
         In weighing these matters, you may consider the age of the decedent and of the heir(s),
the state of health and physical condition of the decedent and of the heir(s) as it existed at the
time of the death and immediately prior thereto; their station in life; their respective expectancies
of life as shown by the evidence; the disposition of the decedent, whether it was kindly
affectionate or otherwise; whether or not the decedent showed a likelihood of contributing to the
support of the heir(s); the earning capacity, if any, of the heir(s), and of the decedent; and all
other facts in evidence that throw light upon the question of pecuniary loss.

NOTE ON USE:
         This instruction may be used where there is economic dependency of plaintiff on
decedent or the evidence of economic dependency is unclear as opposed to revising Instruction
31-01 to accommodate that situation. This instruction may be used in such cases as an
emancipated son/daughter or emancipated brother/sister.
         This instruction should be given along with Instruction 31-03 relating to the elements the
jury should disregard in assessing damages and along with Instruction 31-05 relating to the fact
that the action is brought by the personal representative on behalf of the parents and brothers and
sisters, or if there be none on behalf of next of kin.

Reference:
Estate of Watson, 2003 SD 142, 673 NW2d 60
Welch v. Haase, 2003 SD 141, 672 NW2d 689
Gilbert v. Root, 294 NW2d 431 (SD 1980)
Anderson v Lale, 88 SD 111, 216 NW2d 152 (1974)
Halvorsen v. Dunlap, 495 F2d 817 (8th Cir 1974)
Key: Death, 104(6)

(Revised 2004)
______________________________________________________________________________
                                                                         31-03

DAMAGES—WRONGFUL DEATH—FACTORS TO BE DISREGARDED
______________________________________________________________________________

       The law does not permit you to, and you must not, award plaintiff(s) any sum for the
sorrow, mental distress and grief that the heir(s) may have suffered by reason of the death of the
decedent, [nor for any suffering of the decedent, if any, experienced before (his)(her) death and
caused by the injury in question (nor for any pecuniary loss that the decedent may have
personally suffered)].

NOTE ON USE:
        This instruction should be given in connection with Instruction 31-01 relating to damages
for the wrongful death of an adult or 31-02 relating to damages for the wrongful death of a child,
and 31-02-(A). Plank v. Heirigs, 83 SD 173, 156 NW2d 193 (1968).

Reference:
SDCL 21-5-5
SDCL 21-5-7
Small v. McKennan Hospital, 437 NW2d 194 (SD 1989)
Flagtwet v. Smith, 367 NW2d 188 (SD 1985)
Krumm v. Feuerhelm, 298 NW2d 184 (SD 1980)
Anderson v. Lale, 88 SD 111, 216 NW2d 152 (1974)
Plank v. Heirigs, 83 SD 173, 156 NW2d 193 (1968)
Lanning v. Schulte, 82 SD 528, 149 NW2d 765 (1967)
Smith v. Chicago, Milwaukee & St. Paul Ry. Co., 6 SD 583, 62 NW 967 (1895)

Comment:
        This instruction should be given in connection with Instruction 31-01 for those cases
involving claims of wrongful death of an adult or in connection with Instructions 31-02 or 31-02-
1 for cases involving the wrongful death of a minor or adult child. The bracketed portion at the
end of the instruction should not be given in cases that involve a survival action along with a
claim for wrongful death.
        It is clear that during the period in which the word “pecuniary” was absent from our
wrongful death statute that recovery might be based upon sorrow, mental distress or grief of
beneficiaries. Thus it was stated by our court in Lanning v. Schulte, supra, that under SDC Supp
37.2203, recovery could be based upon “mental shock and suffering, wounded feelings, grief and
sorrow, loss of companionship and deprivation of society and love.”
        However, it is presumed that Chapter 149, Laws of 1967, codified at SDCL 21-5-5 and
21-5-7 inserting the "pecuniary" limit into the statute once more was intended to limit the
measure of recovery and exclude recovery for sorrow, mental distress and grief of beneficiaries.
        Our court has held in Steckman v. Silver Moon, supra, that no recovery may be had under
the wrongful death statute for suffering of the decedent between the time of injury and time of
death. However, it does appear that this would be recoverable in an action
brought under SDCL 21-5-2.
                                                                                31-03 continued

        In Anderson v. Lale, supra, the Supreme Court stated that, "we are also of the opinion
that the 1967 legislature was well aware of the newer interpretation of pecuniary loss of injury,
and it was their intention to only eliminate any recovery for sorrow, mental distress and grief
suffered by the parents or any pain or suffering on the part of the decedent.” Id. at 158.
        In Krumm v. Feuerhelm. supra, the South Dakota Supreme Court approved the use of the
following instruction in that case:
The law does not permit you, and you must not award the next of kin of any of the plaintiffs, any
sum for the sorrow, mental distress and grief that they may have suffered by reason of the death
of the decedents.
Id. at 189.
        In Flagtwet v. Smith, supra, the South Dakota Supreme Court stated that the trier of fact
may assess damages, "but without consideration for the grief and mental anguish suffered by the
beneficiaries because of the wrongful death." Id. at 191.

(Revised 2004)
______________________________________________________________________________
                                                                         31-06

CONSCIOUS PAIN OR SUFFERING
______________________________________________________________________________

        If you decide for the plaintiff(s) on the question of liability, you must then fix the amount
of money which will reasonably and fairly compensate the plaintiff(s), in addition to damages for
wrongful death, for any of the following elements of loss or harm suffered in person or property
by the decedent during (his) (her) lifetime proved by the evidence to have been (proximately)
(legally) caused by the defendant(s) conduct, (taking into consideration the nature, extent, and
duration of the injury), whether such loss or harm could have been anticipated or not, namely:
        (1)     the aggravation of any pre-existing injury or condition;
        (2)     the (disability) (and) (disfigurement);
        (3)     the pain and suffering and mental anguish consciously experienced by the
                decedent as a result of the injury;
        (4)     the reasonable expense of necessary medical care, treatment, and services
                received by the decedent;
        (5)     the time the decedent lost, if any, from employment; and
        (6)     the reasonable value or expense of necessary household service, nursing, and
                attendance provided to the decedent.

        Whether any of these elements or damages have been proved by the evidence is for you
to determine. Your verdict must be based on evidence and not upon speculation, guesswork, or
conjecture.

Reference:
Sander v. Gieb, Elston, Frost, PA, 506 NW2d 107 (SD 1993)
Small v. McKennan Hospital, 437 NW2d 194 (SD 1989)
Krumm v. Feuerhelm, 298 NW2d 184 (SD 1980)
Illinois Pattern Jury Instruction, No. 30.05
Nebraska Jury Instructions, No. 4.30
25A CJS, Death, § 106
Annotation: 52 ALR3d 1289
Key: Death, 82

Comment:
       This instruction is to be used for survival actions when they are combined with wrongful
death cases. This instruction is derived from Instructions 30-01, et seq., and reference should be
made to those instructions.

(Revised 2001)
______________________________________________________________________________
                                                                         32-01

INJURY TO SPOUSE—MEASURE OF DAMAGES
______________________________________________________________________________

       If you find that the defendant is liable to plaintiff (insert name of injured spouse), you
must then determine the amount of money which will reasonably compensate plaintiff (insert
name of deprived spouse) for any of the following elements of damages which you find were
suffered by plaintiff (insert name of deprived spouse) and proximately caused by the
(negligence)(wrongful conduct) of the defendant:
       (Here insert the elements from 32-03 and 32-04.)
       Whether any of the elements of damages have been proved by the evidence is for you to
determine.

Reference:
Zoss v. Dakota Truck Underwriters, 1999 SD 37, 590 NW2d 911
Budal v. Gordon & David Associates, 287 NW2d 489 (SD 1980)
Binegar v. Day, 80 SD 141, 120 NW2d 521 (1963)
Hoekstra v. Helgeland, 78 SD 82, 98 NW2d 669 (1959)
Morey v. Keller, 77 SD 49, 85 NW2d 57 (1957)
Moberg v. Scott, 38 SD 422, 161 NW 998 (1917)
Bitsos v. Red Owl Stores, Inc., 350 FSupp 850 (DSD 1972), aff'd 459 F2d 656 (8th Cir 1972)
Illinois Pattern Jury Instructions, No. 32.01 (Rev)
41 AmJur2d, Husband and Wife, §§ 440-462
41 CJS, Husband and Wife, §117-118.
AmJur Pleading and Practice Forms (Rev), Damages, Form 189
AmJur Proof of Facts, Damages, pp. 760-770
Restatement of the Law 2d, Torts, § 693 et seq.
Annotations: Husband's Right: 21 ALR 1517, 133 ALR 1156
Annotations: Wife's Right: 36 ALR3d 900; 74 ALR3d 805
Key: Damages, 216(8); Husband and Wife, 209.

Comment:
        This instruction cannot be given in the form set out above. It must be completed by
selecting the elements of damage shown by evidence from among Instructions 32-03 and 32-04.
The relevant elements of damages should be inserted between the two paragraphs of Instruction
32-01.
        In this instruction, the phrase "deprived spouse" refers to the spouse of the party who has
suffered personal injury. The party who has suffered personal injury is referred to as the "injured
spouse."
        A comprehensive review of the authorities, texts and law review articles on loss of
consortium may be found in Hoekstra v. Helgeland, 78 SD 82, 98 NW2d 669 (1959).

(Revised 2001)
______________________________________________________________________________
                                                                         32-03

INJURY TO SPOUSE—DAMAGES—LOSS OF CONSORTIUM
______________________________________________________________________________
        The reasonable value of the services, aid, comfort, society, companionship, and conjugal
affections of the spouse of which the plaintiff has been deprived [and the present cash value of
the services, aid, comfort, society, companionship, and conjugal affections of the spouse of
which the plaintiff is reasonably certain to be deprived in the future.]

Reference:
Zoss v. Dakota Truck Underwriters, 1999 SD 37, 590 NW2d 911
Selchert v. Lien, 371 NW2d 791 (SD 1985)
Budahl v. Gordon & David Associates, 287 NW2d 489 (SD 1980)
Wilson v. Hasvold, 86 SD 286, 194 NW2d 251 (1972)
Binegar v. Day, 80 SD 141, 120 NW2d 521 (1963)
Hoekstra v. Helgeland, 78 SD 82, 98 NW2d 669 (1959)
Bitsos v. Red Owl Stores, Inc., 459 F2d 656 (8th Cir 1972)
See Instruction 32-00, Introduction
Illinois Pattern Jury Instructions, Nos. 32.03, 32.04
Minnesota Jury Instruction Guides, No. 170
41 AmJur2d, Husband and Wife, § 447 et seq.
Key: Husband and Wife, 209(3)

Comment:
         This phrase is to be inserted between the two paragraphs of Instruction 32-01 when the
evidence justifies its use. In addition, to include the bracketed material which relates to future
loss, there must be evidence that such loss is reasonably certain to occur. However, if the injury
resulted in death to the husband or wife, then the bracketed material can never be given.
Damages to a husband or wife for loss of consortium are limited to loss suffered between the
injury and death. Loss suffered subsequent to death must be recovered under the wrongful death
statute. Hoekstra v. Helgeland, 78 SD 82, 98 NW2d 669 (1950).
         Likewise, as with death, the dissolution of a marriage by divorce marks the end of the
compensable period for loss of consortium. Bemis Co., Inc. v. Rubush, 401 NE2d 48 (Ind. App.
1980). It should be noted that there is authority for the proposition that the cause of action for
consortium prior to divorce must be preserved in the divorce decree, Michael v. Harrison County
Rural Electric Co-op, 292 NW2d 417 (Iowa 1980). See Selchert v. Lien, 371 NW2d 791 (SD
1985) for period of time covered by consortium claim.
         Loss of consortium and pecuniary loss are not co-extensive. Zoss, supra.

(Revised 2001)
______________________________________________________________________________
                                                                         32-04

INJURY TO SPOUSE—DAMAGES—HOME CARE
______________________________________________________________________________
       The reasonable value of home care provided by plaintiff to the spouse [and the reasonable
value of home care reasonably certain to be provided in the future] together with the expenses
incurred in rendering said care.

Reference:
Stormo v. Strong, 469 NW2d 816 (SD 1991)
Binegar v. Day, 80 SD 141, 120 NW2d 521 (1963)
Hoekstra v. Helgeland, 78 SD 82, 98 NW2d 669 (1959)
22 AmJur2d, Damages, § 209, p. 177
25 CJS, Damages, § 40, et seq.

Comment:
        To include the bracketed material, which related to future caretaking expense, there must
be evidence that such expense is reasonably certain to be incurred in the future.
        Where a recovery is allowed for nursing and attendance furnished by members of the
injured person's family or others, the recovery is to be measured by what is customarily charged
for similar work. Stormo v. Strong, 469 NW2d 816 (SD 1991); South v. National R.R. Passenger
Corp., 290 NW2d 819, 841-42 (ND 1980) and authority cited therein; Hommel v. Badger State
Inv. Co., 166 Wis. 235, 165 NW 20 (1917); Scurlock v. City of Boone, 142 Iowa 684, 121 NW
369 (1909); 25 CJS, Damages, § 40, et seq.; 22 AmJur2d, Damages, § 209, p. 177.
        See Instruction 30-07-2 on reduction to present cash value.
        On the issue of whether evidence of the reasonable value of the services provided needs
to be presented during trial, lawyers and judges should review and compare Stormo v. Strong,
469 NW2d 816 (SD 1991) and Estate of He Crow v. Jensen, 494 NW2d 186 (SD 1992).
        It is important to note that if damages for the same past and/or future home care services
are sought to be recovered under Instruction 30-09, the jury should be instructed to not award
damages to both husband and wife for the same services.

(Revised 2001)
______________________________________________________________________________
                                                                         34-01

FUTURE DAMAGES
______________________________________________________________________________
        The law allows damages for detriment reasonably certain to result in the future. By their
nature, all future happenings are somewhat uncertain. The law simply requires that facts exist
which establish a basis for measuring any claimed future damages with reasonable certainty. The
requirement of reasonable certainty applies only to whether future damages exist; once such
detriment is established, the law does not require certainty as to the amount of such damages.
Thus, once the existence of such damages is established, uncertainty as to the measure or extent
of damages or the fact that they cannot be measured with exactness does not bar their recovery.
On the other hand, conjecture, speculation, or the mere possibility of future damages does not
warrant such an award.

Reference:
SDCL 21-1-10
Keegan v. First Bank of Sioux Falls, 470 NW 2d 621 (SD 1991)
Watkins v. Ebach, 291 NW2d 765 (SD 1980)
Thomas v. St. Mary's Roman Catholic Church, 283 NW2d 254 (SD 1979)
Degen v. Bayman, 90 SD 400, 241 NW2d 703 (1976)
Swenson v. Chevron Chemical Co., 89 SD 497, 234 NW2d 38 (1975)
Koenig v. Weber, 84 SD 558, 174 NW2d 218 (1970)
Nepstad v. Randall, 82 SD 615, 152 NW2d 383 (1967)
Jorgenson v. Dronebarger, 82 SD 213, 143 NW2d 869 (1966)
Kressly v. Theberge, 79 SD 386, 112 NW2d 232 (1961)
Klein v. W. Hodgman & Sons, Inc., 77 SD 64, 85 NW2d 289 (1957)
McGovern v. Murray Taxi Co., 75 SD 151, 60 NW2d 311 (1953)
Peters v. Hoisington, 72 SD 542, 37 NW2d 410 (1949)
California Jury Instructions (Civil) (BAJI 7th Ed) 14.60
Illinois Pattern Jury Instructions, No. 34.01
AmJur Pleading and Practice Forms (Rev), Damages, Form 206
22 AmJur2d, Damages, §§484-485, 269 et seq.
25 CJS, Damages, §§26, 29, 31
25A CJS, Damages, §§185(c), (d)
Key: Damages, 6, 27, 216(6), (7); Physicians & Surgeons, 18, 100

Comment:
        In Jorgenson the court stated: "The rule is well settled in this state to warrant an
instruction and to sustain a recovery for future damages, the future effect of the injury, and either
its permanency or duration, if not permanent, must be shown with reasonable certainty."
        In Peters and McGovern, supra, and again in Thomas, supra, the court has stated that the
word "certain" in SDCL 21-1-10 pertains to reasonable certainty and not absolute certainty.
        In Klein, supra, the court held that where the claim for future damages is based on alleged
future suffering of pain, rather than physical suffering, arising from a scar, the corroborating
opinion of medical experts was necessary because the alleged suffering was subjective rather
than objective.
(Revised 2004)
______________________________________________________________________________
                                                                         34-04

FUTURE DAMAGES—MORTALITY TABLE
______________________________________________________________________________

        According to the mortality table, the life expectancy of a _____-year old person is _____
years of age.
        The court takes judicial notice of this fact, which is now evidence for you to consider.
        You should note the restricted significance of this evidence. Life expectancy shown by
the mortality table is merely an estimate of the probable average length of life of all persons of a
given age in the United States. It is an estimate because it is based on a limited record of
experience. Because it reflects averages, the table applies only to one who has the same health
and exposure to danger as the average person that age.
        Therefore, in connection with the mortality table evidence, you should also consider other
evidence bearing on life expectancy. For example, you should consider the occupation, health,
habits, and activities of the person whose life expectancy is in question.

Reference:
Martina v. Park Jefferson Racing Assn., 315 NW2d 309 (SD 1982)
Koenig v. Weber, 84 SD 558, 174 NW2d 218 (1970)
Bottum v. Kamen, 43 SD 498, 180 NW 948 (1921)
Tenney v. Rapid City, 17 SD 283, 96 NW 96 (1903)
Am Jur Pleading and Practice Forms, Damages, Forms 244 et seq.
AmJur2d (Rev), Damages, §§ 1010, 1013, 1014
25A CJS, Damages, § 185(7)
58 CJS, Mortality Tables
Key: Damages, 216(5); Death, 104(3)

Comment:
      It should be noted that the above instruction is adaptable to use in either a death or a
permanent injury action.

(Reviewed 2004)
______________________________________________________________________________
                                                                         36-01

PREJUDGMENT INTEREST—TORT AND CONTRACT
______________________________________________________________________________
       Any person who is entitled to recover damages is entitled to recover interest thereon from
the day that the loss or damage occurred except:
       1.       During a period of time, the person liable for the damages was prevented by law,
                or an act of the person entitled to recover the damages from paying the damages,
                or
       2.       Interest is not recoverable on damages which will occur in the future, punitive
                damages, or intangible damages such as pain and suffering, emotional distress,
                loss of consortium, injury to credit, reputation or financial standing, loss of
                enjoyment of life, or loss of society and companionship.
       You must decide:
       1.       the amount of damages (if any), and
       2.       the amount of damages which are subject to prejudgment interest (if any), and
       3.       the date or dates on which the damages occurred.

        If you return a verdict for the plaintiff, you must indicate on the verdict form whether you
find plaintiff is entitled to prejudgment interest, and if so, the amount of damages upon which
interest is granted and the beginning date of such interest. Based upon your findings, the Court
will calculate the amount of interest the plaintiff is entitled to recover.

Reference:
SDCL 21-1-13.1
Thomas v. Thomas, 2003 SD 3, 661 NW2d 1
Alvine v. Mercedes-Benz of North America, 2001 SD 3, 620 NW2d 608
Key: Interest 39(2.5) through 39 (2.55)

Comment:
          Instruction 36-02 contains a verdict form to use where prejudgment interest is at issue. If
it is alleged that more than one date is involved in determining prejudgment interest, the number
of blanks should be adjusted accordingly.
          Prejudgment interest is to be determined at the Category “B” rate specified in SDCL 54-
3-16. According to SDCL 21-1-13.1this computation shall be done by the Court.

(Revised 2004)
______________________________________________________________________________
                                                                         46-04

ALIENATION OF AFFECTIONS—DAMAGES
______________________________________________________________________________

       If you find that the defendant is liable to the plaintiff, you must then determine the
amount of money which will reasonably compensate plaintiff for damages caused by the
wrongful conduct of the defendant, which damages may include the following:
       (1)     The reasonable value of the loss of love and consortium of plaintiff's spouse [and
               the value of that loss reasonably certain to be suffered in the future].
       (2)     The reasonable value of physical pain and mental suffering and distress suffered
               by plaintiff [and the value of that loss reasonably certain to be suffered in the
               future].
       (3)     The reasonable value of the lost services and support of plaintiff's spouse [and the
               present value of the services and support reasonably certain to be lost in the
               future].
       (4)     The reasonable expenses of necessary medical care, treatment and services
               received by plaintiff [and the present value of those expenses reasonably certain
               to be incurred in the future].
       Whether any of the elements of damages have been proved by the evidence is for you to
determine.

Reference:
Pickering v. Pickering, 434 NW2d 758 (SD 1989)
Pankratz v. Miller, 401 NW2d 543 (SD 1987)
Hoekstra v. Helgeland, 78 SD 82, 98 NW2d 669 (1959)
Morey v. Keller, 77 SD 49, 85 NW2d 57 (1957)
Restatement of the Law 2d, Torts, § 683 et seq.

Comment:
        To include the bracketed material there must be evidence that such expenses or damages
are reasonably certain to be incurred or suffered.
        See Veeder v. Kennedy, 1999 SD 23, 589 NW2d 610 re: punitive damages in a spousal
loss of consortium claim.
        This instruction was previously numbered 46-02.

(Revised and Renumbered 2001)

				
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