Grandparent visitation disputes are awful, wreaking terrible emotional and financial costs on all concerned.  Sadly, they continue to exist and require the court system to have the wisdom of a panel of Solomons.

Recently, the South Dakota Supreme Court issued a decision reaffirming the “right” of grandparents to visitation, but delineated a rigorous burden of proof grandparents must meet in order to exercise their right.

Before ordering grandparent visitation, a trial court must (1) presume that a fit parent acts in his or her child’s best interests, (2) give special weight to a fit parent’s decision to deny or limit visitation, (3) consider whether the parent has completely denied visitation or simply limited visitation, (4) shift the burden to the parent to offer evidence in support of the parent’s decision only if the grandparents overcome the parental presumption, and (5) require the grandparents to bear the ultimate burden of establishing by clear and convincing evidence that “special factors” exist showing that the visitation they seek is in the child’s best interests.

If a court orders grandparent visitation, it must make findings of fact and conclusions of law identifying the “special factors” it relies upon.  Such factors might include, for example, physical or emotional harm to the child if grandchild visitation is denied, preference for grandparent visitation expressed by a child of sufficient age, “or some other compelling circumstance warranting state interference in parental decision making.”

It is not sufficient that grandparents seek visitation by mere assertion that the grandchild will gain some benefit.  Generalities about the positive influence grandparents have fall short of the necessary showing for government interference with parental decisions.

After observing the “painful dilemma” a court faces in these cases, our Court concluded its analysis by stating, “Ordinarily, though, we must defer to the fundamental rights our constitution affords the choices parents make, even if we might deem these choices regrettable.”

Hopefully, you and your family will not find yourself in this terrible situation.

When:

1. You see yet another car accident at a spot where there have been many accidents in the past and will be more accidents in the future?

1. You learn another person is hurt using a machine that has injured others in the past and will injure others in the future?

1. You watch a dangerous practice – like where a school bus parks – you know is a disaster waiting to happen?

What should you do?

Try to prevent the next accident, injury, and catastrophe from happening.

How can you do that?

Send a letter or email to those responsible – the highway department, the owner and operator of the machine, the school district – putting them on notice of the danger.

Your letter or email will either prompt a “fix” or help the next innocent victim establish liability against those who failed to act.

Taking a few minutes to write a letter or email can have a huge impact; you can be a difference maker.

What if you are injured using a product you know is dangerous – are you barred from recovering damages based on your assumption of the risk?

Maybe – maybe not.

Sometimes, dangers are “open and obvious.”  Open and obvious dangers are conditions that create a risk of harm that is visible, well known or discernible by casual inspection.  A manufacturer ordinarily has no duty to warn of open and obvious dangers, and a product is usually not defective and unreasonably dangerous because of such dangers.

For example, manufacturers are not required to warn of the open and obvious dangers associated with lawnmowers, power tools, motorcycles, and all terrain vehicles.  You will likely be deemed to have assumed the risk of injury if you’re injured as a result of the open and obvious danger – such as sticking your hand into the lawnmower blades.

What if the dangers are not open and obvious?  What if the lawnmower blades fracture and explode during normal operation, the power tool turns itself on when bumped a certain way, the accelerator sticks on the motorcycle, or the all terrain vehicle tips over on a slight slope?

Last week, our Supreme Court reaffirmed the principle that an injured party must have knowledge of the specific defect and risk posed by the product for assumption of the risk to apply.  Knowledge of the generally dangerous nature of the product is not sufficient.  Wangsness v. Builder Cashway, Inc., 2010 SD 14.

So, to have assumed the risk, the user must have known and accepted the specific risk of the lawnmower blades exploding, the power tool turning itself on, the accelerator sticking on the motorcycle, and the all terrain vehicle tipping on a slight slope.  Knowing only of the general dangerous nature of the product is insufficient.

Most of the time, a jury will decide if the user assumed the risk based upon all of the facts and circumstances.

Medical malpractice cases are perhaps the most contentious of all lawsuits involving unrelated parties.  They raise all sorts of issues and emotions.

Why does the law allow for medical practice claims?  What societal goals are they designed to serve?

Are there too many malpractice claims made in South Dakota or elsewhere in the country?  Too few?

How many patients are injured or die every year as a result of medical malpractice?  What would nurses and health care administrators say about that – would they agree with a physician’s perspective?

How many doctors are wrongfully sued every year?  How many should be sued, but are not?  Should a doctor, nurse, or hospital administrator be required to tell a patient he or she has been a victim of medical malpractice?

What does a patient have to prove in order to win?  Does a South Dakota jury give equal consideration to the patient and doctor?  Would you get a different answer from a juror, lawyer, or judge?

Could you be fair to both sides – the patient and the doctor?

How many times has a patient won in a South Dakota court the last one hundred years?  How many malpractice cases have ever been tried in South Dakota?  Was a malpractice case tried in Rapid City in 2009?   How does our experience compare to other states?

Where does a patient find a doctor to evaluate his or her case and testify against a doctor if warranted?  How expensive is that, who pays for it?  What if the patient can’t afford to have his or her case evaluated?

How many lawyers will undertake a patient’s malpractice case?  What does it really cost – time, money, and emotion – to take such a case to trial?

Do doctors and their malpractice carriers settle claims?  Which ones, why?  If a patient’s case is not settled and goes to trial, what are the odds he or she will win?

If a patient is a victim of malpractice, should his or her damages be limited by the Legislature or should a jury decide the amount of damages as they do in other types of lawsuits?  Do health care providers deserve special litigation protections because of who they are and what they do?

For malpractice claims, should doctors be treated differently than other professionals like lawyers, accountants, engineers, realtor, and insurance salesmen?  Why or why not?

If a negligent doctor doesn’t pay for the damages caused by his or her malpractice, then who does?  What if nobody does?  Who pays for all the care required to treat the consequences of medical malpractice?

Are frivolous claims made by patients and, if so, how does our court system deal with them?  Does the patient pay a penalty of any sort for bringing a frivolous claim?  What should such a penalty be?

Does concern about malpractice claims cause doctors to order tests they otherwise would not order and really aren’t necessary?  Does it make our health care more expensive?

Are we safer because doctors know they can be sued for damages caused by their negligence?  Or, are we just poorer?

Do doctors police their own?  How?  Effectively?

How do other countries handled this sensitive subject?  Are any of those systems better than ours?

Do we need change?  Who should decide what that change should be – the judicial or legislative branch of government?  What role should lobbyists and money play in crafting that change?  Is change “reform” or is it just change.

Why have the political parties chosen sides – what does that tell us, if anything, about what the facts really are and what “reform,” if any, is needed?

What’s your perspective?  Are you a doctor or health care provider?  Do you have a close friend or family member that’s a health care provider?  Have you, a friend, or family member been the victim of malpractice?

Has anybody conducted an objective study on any of these issues?  Does anybody really care about what those studies have concluded about these very sensitive issues?

Why does any of this make a difference to you and your family?

So many questions, what about answers?

There’s been lots of talk about New Year’s resolutions the last few days, especially on television commercials.  Whether you want to call it a resolution or not, now is a good time to review important legal issues in your life.

Review your will.  If you don’t have one, seriously consider gathering all of your important documents and making an appointment to get one drafted.  If nothing else, you should have a will to set out your wishes with regard to who will have custody of your children should you and your spouse die.  It’s important.

Review your insurance coverages, including: motor vehicle, general liability, personal umbrella, life, health, disability, and long term care.  Do you have the right kind of coverage, do you have enough?

All insurance is important.  Given what seems to be an increasing number of people who drive with little or no liability coverage, you should pay particular attention to the amount of uninsured and underinsured coverage you have.  It’s often relatively inexpensive to buy.  You will be well served to call your insurance agent to make sure you have adequate uninsured and underinsured coverage.  Ask any lawyer about how important it is to have adequate uninsured and underinsured coverage.

Review your health care related documents, such as a medical power of attorney and living will.  If you don’t have these documents, take some time to learn about where they might fit into your life.  You will likely want one for you and your loved ones.

Speaking of your loved ones, if you have elderly family members then perhaps now is a good time to ask if they want to review their important legal documents.  Perhaps the time has come to finally get documents executed.

Review your business legal issues.  Is your business insurance coverage adequate?  Are your organizational documents up to date?  Have you met all of your reporting requirements?  Are your documents compliant with current law, especially those dealing with privacy?

All of this reviewing may take some time, but probably not that much if you get right at it.  It will be well worth your time.  If you do it now, you will be freed up later in the year so you can follow through on other New Year’s resolutions, like fishing more!

If you want to make a claim against another person or entity, you must get it properly started within applicable deadlines or it will be forever barred.

The deadlines are often referred to as statutes of limitations.  Other times, the deadline may be a statute of repose.  In other instances, particularly if your claim is against a government agency, the deadline will be a written notice that has to be given with a certain period of time – often a much shorter period of time than applies to non-government individuals or entities.

The deadlines vary significantly depending upon the claim.  In South Dakota, for example, the statute of limitations for making a personal injury claim arising out of a car accident is three years.  For breach of contract claims, the statute of limitations is six years.

There may be exceptions to the deadlines – the statute of limitations – that apply such as when an individual who wants to bring a claim is a minor or is disabled.

Statutes of limitations vary from state to state; they are usually determined by the state legislature.  Different levels of government – federal, state, and local – often have their own unique deadlines.

It’s inappropriate in this setting to give definitive advice on what statute of limitations or other deadline applies to a particular case.  Making that determination is important and depends upon the circumstance of each case.

For our purposes here, the point is there are deadlines that have to be met and you should find out very early on what they are.  If you miss the deadline, your claim will fail regardless of its merit.

Once you have made the difficult decision to obtain a divorce, there are many things to consider.  It is important to educate yourself so you understand your basic rights and responsibilities and have a general idea about the process involved for obtaining a divorce.

You need to meet some minimum requirements in order to be eligible for a divorce.  In South Dakota, residency requirements must be met before the court will have jurisdiction to hear the case. Also, there is a 60 day waiting period after the date of filing before the divorce will be granted.

In South Dakota, a divorce may be granted for the following reasons: (1) adultery; (2) extreme cruelty; (3) willful desertion; (4) willful neglect; (5) habitual intemperance; (6) conviction of a felony; or (7) irreconcilable differences.

Divorces can become complicated and involve issues such as child custody, child support, property division, and spousal support.  South Dakota is an “equitable distribution” state, which means that marital property will be divided in an equitable, or fair, manner.  An attorney can help you navigate though the legal system and assist you to be sure you achieve a fair divorce settlement.

Before you contact an attorney, get a head start by gathering documents related to marital property, income, assets, income taxes and debts.  Try to think about how you would like to resolve issues such as the custody of children and the division of property.  Your attorney will likely advise you to try to work out a settlement agreement with your spouse.

If you can reach agreement, you will save time and money – and emotional turmoil.  If you cannot reach agreement, it can become very difficult on every level and expensive.  Your attorney will offer advice and recommendations; you will have to make the best decision you can under all the circumstances.

If you’re in a car accident, calm yourself and your passengers.  Act maturely with poise.  Don’t say something you’ll regret later.

Call 911.

Is anyone hurt – you, your passenger, others?  Respond appropriately.

Before you get out of your car, carefully survey the situation from all direction.  Is it safe to get out of your car?

For as long as you stay out of your car, closely monitor traffic – so there’s not another accident and injury.

Pay attention to the other driver(s), their actions and demeanor.  Note the weather conditions, the road, and the traffic signs.

Are there witnesses other than the driver(s) involved?  If so, get their contact information.

Write down the name of the other driver, their license plate number, and insurance company.

Be honest – especially when you’re talking with law enforcement.

As soon as you can, call your insurance company.  If you didn’t write down everything you observed at the accident site, do so promptly thereafter.

After you leave the scene, if you find yourself wondering if you should call a lawyer – call a lawyer.

When should you consult with a lawyer?

1. Before you sign the contract.
2. Before you start your business.
3. Before you become a partner.
4. Before you decide to get divorced.
5. Before you default on your loan.
6. Before you fail to pay your taxes.
7. Before you die (well, you know what I mean).

Preventing legal problems, like preventing health problems, is far better than trying to cure them.  It’s almost always less costly, emotionally and financially.

Many times, a legal problem would have been avoided if the client had sought legal advice before – not after – making a big decision.

How about if something bad happens beyond your control, like an accident or a termination from employment?  Then, when should call a lawyer?

If the thought crosses your mind – should I talk with a lawyer – then, talk to a lawyer.  There’s no good reason to wait.

Talking with a lawyer doesn’t mean you have to hire that lawyer.  It doesn’t necessarily mean it will cost you anything other than your time.  Many lawyers will see you one time without charge.  That meeting will give you insight into what you’re dealing with and whether you should hire a lawyer.

Most of us became lawyers to help people, and try very hard every day to do just that.  Most lawyers will meet to discuss your situation and offer preliminary thoughts on what you should consider going forward.

If you want to talk with more than one lawyer, then do.  You’re not limited to meeting with only one lawyer.  Talk to two or three – as many as you want.

Talk, listen, and thoughtfully consider what you need to do – then do what’s best to protect yourself.

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A Google search by a prospective juror was the issue in a recent decision from the South Dakota Supreme Court.  It’s one example of how the internet is impacting our legal system.

In Russo vs. Takata Corporation and TK Holdings, Inc., 2009 SD 83, a sixteen-year Natasha was driving her mother’s 1996 Geo Tracker with her then ten-year old sister, Jessica.  While traveling on Highway 385 near Hill City, the vehicle crossed the centerline, traveled back into its lane of traffic, slid sideways off the shoulder of the road and rolled almost three times down a steep ravine before hitting a tree.

Natasha was thrown across the front seat and partially ejected from the vehicle, being pinned under the Tracker.  She died at the scene.  Jessica was thrown into the back seat but was not physically injured.

The mother of Natasha and Jessica – the Plaintiff – brought suit against General Motors Corporation, Suzuki Motor Corporation, and the seat belt and buckle manufacturer Takata Corporation and its American Subsidiary, TK Holdings, Inc.  She claimed both girls were buckled into their seat belts before the crash and that the seat belts simultaneously unlatched due to inertial forces.

Plaintiff claimed that the seat belts unlatched because they were defective and unreasonably dangerous and negligently designed.  The manufacturer defended on the theory that the girls did not buckle their seat belts before the crash and that Natasha failed to maintain control of the vehicle.

Prior to trial, prospective jurors received a summons and a questionnaire.  Prospective juror Flynn did not recognize the Takata name so wondered “what they did.”  Flynn conducted two Google searches: (1) his first search term was “Takata” and it took Flynn to its home page that revealed it “was a seat belt and airbag manufacturer;” and (2) the second search term was “TK Holdings” which revealed it “was the American subsidiary of Takata.”

During jury selection, prospective jurors were asked by plaintiff’s counsel whether they had ever heard of Takata before arriving at court.  No one, including Flynn, responded positively.

Liability for the accident was hotly contested.  There was evidence presented regarding whether Takata had notice its seat belts were defective.  The evidence included cases of four other drivers who claimed their seatbelts had come unbuckled during accidents, and the fact that ten other lawsuits had been filed against Takata.

During deliberations on the issue of whether Takata had notice of any defects prior to this incident, juror Flynn told another juror that he had conducted a Google search and learned that Takata manufactured seatbelts and airbags.  Flynn also said he did not find any lawsuits during his search.  Another juror told juror Flynn that jurors were not to take into account outside information.  Flynn tried to retract what he had said, but attention had been drawn to the exchange.  Three other jurors heard the exchange which lasted three to five minutes.

After another one and one-half hours of deliberation, the jury reached its verdict for the defense.  Nothing was said of the Google search exchange when the verdict was read in the courtroom.

Later, after the trial, plaintiff learned of the Google search exchange by the jury and brought a motion for a new trial alleging jury misconduct.  The trial court granted the motion.  The 19-day jury trial – with all of the time, expense, and emotion that involves – would have to be redone.

Our Supreme Court agreed with the trial court’s judgment that the Google search constituted “extrinsic information” – knowledge relevant to the facts in issue obtained by the juror other than through evidence at trial.  It was not the kind of “general knowledge” jurors bring with them to the courtroom from their every day experiences.

The extrinsic information was relevant and prejudicial because there was “a reasonable probability that Juror Flynn’s information, that there were no other lawsuits against Defendants, impacted the jurors’ decision as to whether or not the product was defective and further, whether Takata had notice of any defects in the product.”  A typical, reasonable, or normal juror could have been influenced by Flynn’s remarks.

The Supreme Court stated this was a “close case.”  The Court stated that it was not announcing a “hard and fast rule that all such types of internet research by a juror prior to trial without notice to the court and counsel automatically doom a jury’s verdict.”  Rather, the Court said it was deferring to the trial judge under the circumstances because the trial judge had the “distinct advantage of being present throughout the nineteen-day trial” to determine whether the information was “extrinsic” and prejudiced the jury.

What’s the practical result of this decision?

Questionnaires to prospective jurors will likely include language advising that no information about the case or parties should be sought by any means, including computer searches.  Lawyers will include questions about internet searches in their questions during jury selection.  Instructions to jurors during a trial will probably be revised to instruct that internet searches about the case (parties and issues) should not be conducted during the course of the trial.

The goal is for the jury to make its decision based upon the testimony presented during the trial and the law instructed by the court.  Jurors are instructed they can use common sense in reaching their verdict; but, they cannot go beyond the courtroom to conduct their own investigation into the issues they are to decide.