South Dakota Personal Injury Attorney Blog

Monitoring and Talking to South Dakota Teen Drivers Can Reduce Risks

Sun, 05 Feb 2012 08:00:00 EST

When teenagers first get their drivers’ licenses and are out driving on the roadways in South Dakota, they often take unnecessary risks, whether as a result of peer pressure, over-confidence or to show off in front of their friends. Unfortunately, unnecessary risks can cause serious injuries or fatalities. Studies have shown that the number of teen driver car crashes doubles when there is one teenage passenger in the car with an even higher rate when there is more than one teenage passenger.

South Dakota teenage drivers take unnecessary risks that include:

Speeding
Starting and stopping too fast
Refusing to wear a seatbelt
Driving while intoxicated
Driving at night when drowsy and tired

Teens are inexperienced drivers and often lose control of the car when taking these risks and driving recklessly, causing a serious crash involving one or more other vehicles. If this happens, contact a South Dakota personal injury attorney immediately.

However, according to a study by the Insurance Institute for Highway Safety, there is something parents can do to limit the unnecessary risks taken by teen drivers. The study indicated that teenagers drive more safely when they are being monitored. While the study used a device placed in the vehicle that beeped when the teenager drove recklessly, causing the driver to change the risky behavior, the device would not actually work unless the parent and teen driver talk to one another about appropriate driving habits. Having a conversation with your teenage driver about not speeding or driving while intoxicated goes a long way towards making them safer drivers.

Handing over the keys to your new teenage driver is not easy for parents, but monitoring their driving habits and speaking with them about good driving techniques is. If your teenage driver is in an accident, contact a South Dakota personal injury lawyer at Zimmer, Duncan & Cole. Our South Dakota attorneys have experience representing teenage drivers who have been involved in car crashes throughout the state. Call the law office toll free at (888) 733-2992 or complete the contact form on this page. You may also download a copy of the free book The Ultimate Guide to Car and Truck Accident Cases in South Dakota: 7 Deadly Sins That Can Wreck Your Injury Claim, available on our website.

How South Dakota Truck Accidents are Caused by Depowering Brakes

Sat, 04 Feb 2012 08:00:00 EST

Proper maintenance of truck equipment is important for everyone on the road, but cost-saving measures often over-ride safety concerns. One of the biggest cost-cutting measures that South Dakota trucking companies and drivers tend to undertake is to depower or remove the front brakes. This is, unfortunately, the cause of many truck accidents throughout the state.

Why would a trucking company depower or remove the front brakes, thereby risking the lives of the truck driver and others on the road?

When the trucking company depowers or unhooks the front brakes, the driver then relies on the brakes of the trailer and downshifting to stop or slow a vehicle. This lowers operating costs by:

Minimizing the wear on and expense of the tires
Minimizing brake wear
Minimizing replacement costs

However, the South Dakota attorneys in our office see this as a cause of serious truck accidents. When the front brakes are removed or unhooked, the trucker is unable to stop quickly. In addition, the brakes tend to fail, overheat or malfunction, and an over-sized eighteen-wheeler can easily jackknife.

Depowering and removing the front brakes is a dangerous way to decrease operating costs. If you have been in a crash with a truck, contact our law office of Zimmer, Duncan & Cole. Our team of experienced South Dakota lawyers will determine the cause of the crash and will work hard to protect your rights. Call our office toll free at (888) 733-2992 or complete the contact form on this page for a free consultation. Also order a copy of the free and important guide written by our attorneys, The Ultimate Guide to Car and Truck Accident Cases in South Dakota: 7 Deadly Sins That Can Wreck Your Injury Claim, available on our website.

Sioux Falls Personal Injury Lawyer Can Win Your Insurance Dispute

Fri, 03 Feb 2012 08:00:00 EST

Disputing with your South Dakota insurance company is almost a guarantee if you file a car accident claim, as insurance companies rarely pay out the full value. Dealing with insurance companies is frustrating and can cause increased anxiety, particularly if you are trying to recover from injuries incurred as a result of a motor vehicle collision.

If you have been in a car crash in South Dakota and you are not satisfied with the payout by the insurance company, you should speak with a Sioux Falls personal injury lawyer. An experienced Sioux Falls, SD, personal injury lawyer will handle the car insurance claim dispute by:

Gathering and reviewing the information pertinent to the claim and providing additional written information to your insurance company.
If your attorney determines that you have a strong case, he or she will advise you to hire an independent appraiser. While hiring an impartial evaluator will cost extra money, the independent appraiser’s evaluation may make your case stronger.
Depending on your case, your personal injury lawyer from Sioux Falls will represent you in a mediation or arbitration with the insurance company.
If all else fails (or in lieu of mediation or arbitration), your attorney will defend your case in small claims court

Dealing with insurance companies can be frustrating, but an experienced personal injury lawyer from Sioux Falls, SD, can help by taking over the process so you can focus on getting your life back together. If you have been in a car accident, contact a Sioux Falls personal injury attorney at Zimmer, Duncan & Cole. Our knowledgeable attorneys offer a free consultation, contact the law office toll free at (888) 733-2992 or complete the contact form on this page.

South Dakota Car Crash with Deer: Are you Covered?

Wed, 01 Feb 2012 08:00:00 EST

The fall and early winter seasons in South Dakota bring about new issues for drivers like snow, sleet, ice and even deer. South Dakota ranks third among all states for the number of motor vehicle crashes with these woodland animals. The cost of repairing damage to a car as a result of a collision with deer in South Dakota ranges from approximately $3000-$5000. This is a hefty out of pocket expense for most drivers, and one that many cannot afford.

Are you covered if you are one of the thousands of drivers that hit a deer in 2011?

First and foremost, if you are in a collision with deer, contact a South Dakota attorney, particularly if you are suffering personal injuries and/or other drivers are involved. In a state that has such a high rate of car crashes involving deer, it is important to know if you have the appropriate insurance coverage before it is too late.

Comprehensive coverage is the type of motor vehicle insurance coverage that covers you for damages sustained to your vehicle in the event of a crash with deer. It is important to know that while, technically, you have had a collision with deer, your collision insurance will not cover the damages.

Nationally, 3.6 million vehicle owners are without comprehensive coverage. Therefore, it is recommended that you double-check to make sure you have proper coverage. If you are involved in a South Dakota collision with deer, it is better to have the coverage than have to deal with the costly out of pocket expenses.

If you have been in a motor vehicle crash with a deer, you should contact a South Dakota lawyer for immediate help with your claim. Not only can an event like this damage your vehicle, you may be suffering personal injuries or other drivers may also be involved. A simple accident can quickly turn complex.

Call the South Dakota attorneys at Zimmer, Duncan & Cole. Our attorneys have been representing clients involved in motor vehicle accidents throughout South Dakota since 1948. Call our office toll free at (888) 733-2992 or complete the contact form on this page for a free consultation.

Courts Follow Unique Set of Rules for Estate Cases

Tue, 31 Jan 2012 08:00:00 EST

After a mother’s death, her son Leo became the odd-man-out. He began pointing fingers at his five siblings and raised numerous questions about her estate. When the trial court refused to intervene on his behalf, Leo attempted an appeal to the South Dakota Supreme Court. The resulting opinion is captioned, In the Estate of Minnie Geier, (2012 S.D. 2).

* * *

Our firm handles a lot of estate litigation cases. If there is one word to sum them up, it would be “tricky.” The procedural rules are different; the stakes are often very high; and it’s often impossible to please everyone. Unlike a simple two-party lawsuit, there are often dozens of stakeholders, including creditors, children, banks, and insurers. Usually, a lone personal representative (often called an executor) is charged with keeping the peace. Famously, estate cases tend to breed the same distrust and animosity as a difficult divorce. That is the black cloud that had descended upon Minnie Geier’s family after her death in 2010.
She left behind six children. One of them (Leo) seemed to be filled with doubt about the others. Minnie had chosen her daughter Darlene to be her personal representative. Darlene immediately took charge, inventoried her property and got the estate in order. Darlene assembled her siblings, gave them each a copy of the will, and presented her plan for wrapping up their mother’s estate by year-end. Six weeks later she presented a complete and final accounting of her mother’s remaining assets. None of her siblings objected to her findings. The following week, her lawyer sent them letters announcing the next step would be distributing those assets to the siblings and closing the estate.
This is when Leo began to doubt. He asked the Court to “supervise” the estate because of some alleged misconduct by Darlene and another brother prior to their mother’s death.
“Supervision” of an estate requires court approval for almost all of the personal representative’s actions. It’s a good check and balance to have, especially in situations of distrust. But it is quite burdensome, and it’s unnecessary when the personal representative is honest and reliable. Leo asked for supervision because he alleged that sister Darlene and brother Clemens had inappropriately diverted funds to themselves out of their mother’s checking account prior to her death. For example, in the last weeks of Minnie’s life, Darlene had received $7,000 in checks to pay for her “living expenses.” Likewise, over a period of three years, Clemens had received almost $12,000 from Minnie, including some for “casual labor.” The trial court offered Leo the opportunity to investigate, call witnesses, and present evidence. After hearing all of it, the trial concluded the payments in question were acceptable: in their mother’s final weeks, Darlene had temporarily relocated from Montana to care for her mother 12 hours a day. Likewise, Clemens had had been providing similar help and services in the three years prior. The court found no need for supervision.
Leo appealed.
The process of starting an appeal is very specific. To do so, a party has 30 days in which to serve and file a “notice of appeal,” a document which identifies the particular court action to be reviewed. Not every decision of the lower court can be appealed. (If they could, the Supreme Court’s work would never end: it would be filled with requests from disgruntled litigants.) Instead, the right to an automatic appeal to the state Supreme Court is limited to the 30 days after the lower court’s final decision. During that 30-day period (and never a day later), the notice of appeal must be mailed to each and every party in the case (or their lawyer). Leo sent out one notice of appeal: to the lawyer representing the Estate. Leo was correct that the Estate was a party to the lawsuit, and therefore needed to be served. However, what Leo overlooked were the other interested parties to this lawsuit: the heirs.
The Court explained that it’s normally easy to identify the parties to a lawsuit by looking at the legal documents already filed. In a regular case, those would identify the parties as Someone vs. Someone Else. Here, the case is called “In the matter of the Estate of Minnie Geier,” so the identity of the parties is not immediately apparent. Estate causes are filled with tricky rules like this, and the Supreme Court is unforgiving to those who break them. The Court dismissed Leo’s appeal because he failed to send the Notice of Appeal to the other five heirs (his siblings). His appeal will never be heard.

Deadline Pushers Litigate at Own Risk

Thu, 19 Jan 2012 08:00:00 EST

A car accident victim’s lawyer waited until the last possible moment to start a lawsuit, creating problems for miles around. The South Dakota Supreme Court heard the arguments in the case of Jill Robinson v. Michelle Mitchell and Chelsey Ewalt. (2012 S.D. 1).

* * *

I’ve said it before in this column: Every Legal Claim Has a Shelf Life. If you miss the deadline to file your lawsuit, you are completely out of luck. For this week’s case, the magic number is three years, plus a possible 60-day extension.
Our story begins with a three-car accident on April 28, 2007. A high school student, Chelsey Ewalt, rear-ended Michelle Mitchell, who, in turn, rear-ended the car in front of her, and injuring its driver, Jill Robinson. Three years minus one week later, Ms. Robinson’s lawyer attempted to start a lawsuit against the other two drivers.
Legally speaking, a lawsuit is started by serving of summons. The “summons” is a single sheet of paper, which loosely translated says, “You are being sued; you have 30 days to respond in writing to the claims against you; if you don’t, the other side wins by default.” The summons is “served” when it is handed to you either by the sheriff or by a process server (someone who professionally tracks down defendants. It’s a thankless job, but it leads to many great stories, such as the one where a process server pretended to have a toothache in order to serve an evasive dentist.)
In our car accident story, the middle driver (Ms. Mitchell) was served by the sheriff on April 24, 2010. This was four days before the deadline, which was cutting it close, but still valid. Serving the other driver, Chelsey, would not be as easy. In addition, it would involve an exception to the three-year time limit. That exception provides a sixty-day extension to the three-year window. The extension is allowed when, prior to the normal deadline, the summons is delivered to the sheriff of the county where the defendant “usually or last resided.” In Chelsey’s case, it turns out that “where she usually or last resided” wasn’t immediately obvious. A year after the accident, Chelsey graduated from high school and moved away from Yankton County to Minnehaha County, then back to Yankton County, then to Sioux City, Iowa, until finally moving to Watertown, South Dakota, which is in Codington County. Meanwhile, Chelsey continued to use her parents’ address in Yankton County for her driver’s license, her tax returns, and her bank statements. A few months after her final move, she changed her driver’s license address to Codington County. Five days prior to the three-year deadline, a copy of the summons was given to the Yankton County sheriff to serve upon Chelsey. The sheriff’s office made contact with Chelsey by telephone, who said she would come to pick up the papers in person. She didn’t, however, and then the summons was eventually given to the Codington County sheriff (but not until after the three-year deadline had passed). After reviewing the facts and the law, the trial judge ruled that Chelsey was a resident of Codington County, and therefore she was not served in time (because the summons wasn’t delivered to her “home” county sheriff until after the three-year deadline). As a result, he dismissed the lawsuit against her.
Ms. Robinsion (the plaintiff) appealed this ruling.

* * *

Questions of law can be decided by judges, while juries must decide questions of fact. Therefore, if the facts are still in dispute, a judge is not allowed to rule, and must ask a jury to decide. In this appeal, the South Dakota Supreme Court faced a case where the facts weren’t in dispute, but the meaning of those facts was. The Court reversed the trial court’s decision, because a jury could view all of these facts and come to either conclusion: that Yankton County either was or was not her “usual or last residence” at the time the sheriff received the summons. Therefore, a jury will need to sort this out at the same time as it hears and decides the underlying issues related to the car accident. The moral of any of these stories is to find a lawyer sooner, rather than later, to avoid any problems with the deadline. In addition, ask your lawyer when the statute of limitations runs on your case, so that you know the issue is being addressed.

* * *

Finally, let me honor the memory and outstanding legal career of Bill Janklow. I had only one case opposite him, and I will never forget it.

* * *

Daniel K. Brendtro is a trial attorney and a partner in the Zimmer, Duncan & Cole law firm of Sioux Falls and Parker. For those of you looking for a Zoe update, she is doing great, and the dog has formally accepted her into our family (by gently cleaning her toes).

Juries Don't Often Hear the Whole Story

Fri, 13 Jan 2012 08:00:00 EST

This week, I’m writing my column from the couch, with an eight-day-old baby rocking peacefully at my feet. Following my wife’s detailed instructions, I inspect Zoe’s swaddling every so often to ensure that her nose has a clear pathway to fresh air.
One of Zoe’s gifts in this new world is a mother who worries well-beyond her fair share. My wife’s hyper-vigilance is just fine with me, especially as I reflect upon the sad circumstances of this week’s case: a mother and father who tragically lost a wonderful son.
Ethan Holznagel was sixteen years old and a student at Mitchell High School. He was handsome and liked by his peers. He was passionate about skateboarding, and he loved music. On an internet profile, he humbly summed himself up like this: “I’ve been skateboarding since the start of 2005, so I’m not the best in town, but I am really, really decent, most likely because I vary myself and try a lot of new things.”
On a Tuesday in April of 2006, Ethan headed home from school to eat lunch. He was driving east on 8^th Avenue, just three blocks from school. He approached the next intersection at the same time as John Cutsinger, an employee of Dependable Sanitation. Mr. Cutsinger was pulling a 30-foot recycling trailer behind a large, Ford F-450 truck.
When Mr. Cutsinger reached the intersection, he executed a wide, right turn, with the intent of heading west (toward where Ethan was coming from). During that wide turn, the truck and trailer crossed into Ethan’s side of the street and collided with his car. Ethan died shortly thereafter.
Mr. Cutsinger told a police officer that he “probably” smoked marijuana on the morning of the accident, prior to his 6:00 a.m. shift (but he later denied saying this.) He also admitted to smoking marijuana before work—as many as fifty times before. And after hearing the tragic news that Ethan had died, Mr. Cutsinger headed home from work and smoked marijuana again.
On behalf of Ethan’s estate, Ethan’s parents filed a wrongful death lawsuit against Mr. Cutsinger and Dependable Sanitation.
Shortly before trial, the defendants’ lawyers filed a motion asking the judge to exclude from trial any mention about Mr. Cutsinger’s marijuana use.
His drug use was not in doubt: Mr. Cutsinger’s blood and urine tested positive for THC, the active chemical in marijuana.
Instead, the defense lawyers argued that this evidence would unfairly poison the jury’s view of Mr. Cutsinger and Dependable Sanitation. In other words, they feared that the jury would assume that Mr. Custinger caused the accident simply because of his marijuana use.
The trial judge agreed, and the jury was not allowed to hear any mention of Mr. Cutsinger’s drug use. The jury returned a verdict against Ethan’s family, who then appealed.

* * *

Telling a story in open court is not like telling a story in your living room. In court, the story unfolds in a very formal fashion. It is told in pieces. Only one witness can testify at a time. Long, narrative answers are frowned upon, so each witness may testify only in response to a specific question.
Before the jury arrives at the courthouse, the lawyers may file a motion in limine to prevent certain topics from being discussed. (In limine is Latin for “at the threshold,” signifying that certain topics will be left at the courtroom door.)
Generally, a jury is allowed to hear every bit of evidence that might affect their decision. However, if the testimony is much more likely to confuse or inflame the jury than to help it reach a decision, it can be excluded via such a motion.
On appeal, the South Dakota Supreme Court agreed that the drug evidence could be excluded in this case.
Although Ethan’s family believed the drug use could affect the driver’s memory, perception, and reaction time, the responding officers said they didn’t notice anything unusual about Mr. Cutsinger. The Court suggested that its decision may have been different if a medical expert had testified about the effects of marijuana use five hours after smoking it.
Without that expert testimony, the Court agreed, then, that the evidence would be more prejudicial than helpful. The verdict against Ethan’s family was affirmed.

Court Wields Power for the Powerless

Thu, 12 Jan 2012 08:00:00 EST

When an insurance company flatly refuses to pay the full amount of your claim, there are only two options: give up or file suit. A pair of court cases decided last week were the product of two injured drivers who refused to give up. The opinions are Cindy Tripp v. Western National Mutual Insurance Company and Andrea Bjornestad v. Progressive Northern Insurance Company. In each, the Court of Appeals for the Eighth Circuit examined an insurance company’s duty to deal fairly and honestly with its insureds.

* * *

I’m writing this week’s column from the hospital. Four feet away is my wife’s bed, and just beyond it is a flashing screen that confirms our unborn daughter’s heart is chugging right along at 139 beats per minute. A clear bag of saline solution hangs above Jen’s bed, along with a little bottle that drips some magic elixir into her spine. Our nurse bustles in and out fixing, checking, adjusting, verifying. Earlier, a team of her senior colleagues were called in on special assignment to find somewhere to insert my wife’s IV port. (She apparently has small veins.) Next came a specialist who carefully threaded the epidural needle into a tiny opening in her spinal column. The obstetrician pokes her head in to explain the big picture (and also to confirm that we’ve picked a good name: “Zoe”.) It’s a team effort of experts, and I’m just a spectator. I have no medical training beyond a CPR course. (My heart skips a beat even hearing the announcement that it’s time to break the water.) For the next 48 hours, my faith and trust are in those who know more than me. Someone else is calling all the shots. I am absolutely powerless.
The analogy isn’t perfect, but this is a lot like the relationship between an insurance company and its insureds. They know more than us, and they call the shots. We pay the premiums, and they make the decisions. They write the fine print, and we sign without reading it. We’re mostly powerless.
Both of the cases this week investigate what happens when insurance companies “go too far” while sitting in the driver’s seat.

* * *

Andrea Bjornestad and Cindy Tripp were involved in separate car accidents, over a year apart. Both were injured, and both were hit by drivers who didn’t have enough insurance to cover the damages.
In situations like this, we rely on something called “Uninsured/Underinsured Motorist Coverage” which we purchase through our own insurance companies. This type of coverage is especially useful in a state like South Dakota, where other drivers are only required to have $25,000 worth of basic coverage. The standard amount of UM/UIM coverage to fill in the gaps is $100,000. (Here’s a good item for a new year’s resolution: make sure you have at least $500,000 of this coverage.)
In Cindy’s case, it was estimated that she had $330,000 worth of damages, but the at-fault driver had only $100,000 in primary coverage.
Andrea’s crash left her with damages estimated as high as $175,000, but the at-fault driver had only $25,000 worth of insurance.
Both drivers then turned to their own insurance companies for help. Almost the exact same thing happened to each: their insurance companies responded by “low-balling.” Progressive offered only $10,000 in response to Andrea’s request for $75,000. Likewise, Western National’s final offer was also $10,000 in response to Cindy’s request for $150,000.
Insurance companies hold all the cards in situations like this. Unless you agree to take their final offer, your only remaining choice is to ask the courts for help. That’s what Cindy and Andrea did. Their lawsuits slowly worked their way through the court system, but their patience was ultimately rewarded. Two separate juries agreed with them. In their verdicts, the jurors concluded that the insurance companies had breached their insurance contracts and were therefore required to pay the full amount requested (plus interest). In addition, Cindy and Andrea asked for their attorney’s fees. A jury doesn’t make this decision, however. It’s left up to the judge. The trial judges both awarded attorney’s fees: $45,718 in Andrea’s case, and $65,000 in Cindy’s case.
Progressive and Western National appealed, and both appeals affirmed the trial judge’s decisions for similar reasons. Internally, both insurance companies had valued the claims much higher than their ultimate, final offers of $10,000. As a matter of principal, then, the Court said they should have offered their own customers at least as much as their adjusters said the claims were worth. They didn’t, and as a result, they’ll be paying a hefty legal bill on top of the amount they probably should have paid in the first place.

* * *

Daniel K. Brendtro is a trial attorney and a partner in the Zimmer, Duncan & Cole law firm of Sioux Falls and Parker. He is also Zoe’s dad. She arrived home happy, healthy, and cute.

Defendant Questions Life Sentence for Car Crash

Tue, 03 Jan 2012 08:00:00 EST

A criminal defendant asked the South Dakota Supreme Court to re-examine the life sentence he received for a fatal car accident. The opinion in State v. Jason Larsen-Smith (2011 S.D. 93) examines the rule against cruel and unusual punishment.

* * *

Last night, I found my ten-year-olds in the living room, captivated by a new discovery: the television show COPS. They eagerly explained the show’s premise to me and were quite surprised to learn that this reality crime series (and its “Bad Boys” theme song) had been on the air since I was in grade school. This particular episode involved a familiar story line: a routine traffic stop, an ensuing high speed chase, and a dramatic collision.
It reminded me of what happened in Lennox, SD last Saturday morning, when the drug store burglar, turned bank robber, turned car thief was finally apprehended after a twenty-mile chase.
The moral of these stories is that fleeing always makes things worse. Nobody would agree more than the defendant in this week’s case, Jason Larsen-Smith.
One week before Christmas in 2009, a state trooper suspected he was driving drunk and attempted to pull him over near the Empire Mall. Mr. Larsen-Smith accelerated and fled, at speeds of 95 miles per hour through Sioux Falls. Eight minutes later, Mr. Larsen-Smith ran a red light on 12^th Street and collided directly into a Ford Ranger. The driver of the pickup was pinned inside and killed instantly. The speed upon impact was estimated at 65 miles per hour. Mr. Larsen-Smith willingly pled guilty to first degree manslaughter and driving under the influence. Despite his contrition, the trial judge gave him the maximum sentence: life in prison. Mr. Larsen-Smith appealed, arguing that this sentence was unconstitutional.

* * *

The Eighth Amendment to our federal constitution outlaws criminal punishments that are “cruel and unusual.” (It also forbids courts from imposing excessive fines or bail.) Among the list of cruel no-no’s: being beheaded, disemboweled, or burned at the stake. (Firing squads are acceptable, as is electrocution.)
Only within the last three decades did courts begin to consider lengthy prison terms as “cruel and unusual”. In the landmark case Solem v. Helm, our U.S. Supreme Court determined that this clause “prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed.” That case had its roots in South Dakota. Jerry Helm was convicted in 1979 for writing a $100 check on a non-existent account. This was his seventh felony in fourteen years. All were non-violent, and alcohol was involved in each case. Indeed, Mr. Helm did not even remember writing the check: "I was drinking, and I ended up here in Rapid City with more money than I had when I started. I knew I'd done something, I didn't know exactly what.” The maximum sentence for that crime would have been five years. However, under South Dakota’s repeat-offender statute, he was sentenced to life in prison without parole. In that 1983 case, the U.S. Supreme Court overturned his conviction because it was “significantly disproportionate to his crime.”
Although the result seems correct, the Court’s decision opened up a can of worms. Now, every prison term is potentially unconstitutional. In addition, some jurists have argued that the 8^th Amendment was never intended to be used in this way. Our own state Supreme Court is reluctant to second-guess the state Legislature when it comes to sentencing. If the law permits a particular range of sentences, then a sentence within that range is almost always upheld. Our Court is also deferential to the trial judge who imposed the sentence, stating that “it is not for us to engage in appellate resentencing or to micromanage the administration of criminal justice.” Accordingly, the Court uses a very strict framework for overturning a sentence. It asks whether the punishment is far too great for this particular crime, while taking into account the defendant’s character, age, habits, family, occupation, prior criminal record, and prospects for rehabilitation.
Here, the Court noted that Mr. Larsen-Smith was only 31 years old and had a young son. However, he had already been convicted of eight DUIs. He had been paroled six times, and he violated each time. He had received alcohol counseling multiple times, but always relapsed. The longest he had ever stayed out of prison was ten months. In addition, the Court noted that his high-speed chase resulted in the death of a “completely innocent man” whose family was financially and emotionally devastated by his death. The Court determined that incarceration was the only safe way to ensure that Mr. Larsen-Smith’s eighth DUI would be his last. Considering all the circumstances, the Court ruled that his lifetime sentence was not disproportionate to the crime.

Court Gives Prairie Dogs "Royal" Treatment

Tue, 20 Dec 2011 08:00:00 EST

A group of ranchers sued the State of South Dakota for failing to control prairie dog incursions from neighboring, public lands. The State didn’t dispute that populations have risen above nuisance levels. Instead, it argued that the State and its employees were “immune” from being sued. Our state Supreme Court addressed this dispute in William Adrian, et al v. Jeff Vonk, Secretary of the Department of Game, Fish & Parks, et al (2011 S.D. 84).

* * *

There’s not a lot of middle ground when it comes to prairie dogs. They are regularly championed by environmentalists but utterly despised by ranchers. Adoring school children write reports extolling their sociability and intelligence. Rifle enthusiasts use them for target practice at 400 yards.

At the root of the struggle between these ground squirrels and their human counterparts is a common trait: the ability to establish permanent settlements and towns. A prairie dog “family” includes a handful of adults and their young in a thirty-foot long burrow. Groups of these burrows are interconnected by a complex network of tunnels and mounds. Commonly, a “town” of several hundred prairie dogs will occupy half a square mile. Some communities grow much larger, many miles in length, teaming with tens of thousands of cute, furry citizens/outlaws. In South Dakota, prairie dogs occupy almost a thousand square miles, including large swaths of public grasslands. Their sprawling settlements often spill beyond those unmarked borders. Neighboring ranchers protest these incursions. Prairie dogs denude the surrounding vegetation and greatly alter the landscape. They are vectors for the bubonic plague. (It is also alleged that unsuspecting cattle can break their legs by stepping in a prairie dog hole, though some suggest this is a myth.) Whether their menace is fact or fiction, a massive war was waged to eradicate them. It nearly succeeded. Within a hundred-year’s time, America’s prairie dog population was curbed by as much as ninety-eight percent. When prairie dogs faced possible extinction, the government’s goal turned from eradication to management. A patchwork of state and federal laws highlight the delicate balancing act.

In 2001, our Legislature removed the prairie dog from a list of “pests” and instructed the state agencies to prevent the prairie dog from being listed an endangered species. The agencies are supposed to foster prairie dog communities on public land, but the State is authorized to compensate landowners for lost income caused by further encroachments onto private lands. Meanwhile, ranchers are given the right to sue neighboring landowners who fail to control their prairie dog populations. Relying on all of these laws, three dozen ranchers joined together in a suit against the state’s Departments of Agriculture and Game, Fish & Parks. They asked for money damages, alleging that the State had failed to enforce its regulations and that it had been a bad neighbor by failing to control its prairie dog populations. The State agencies argued that they were protected from such a suit by the doctrine of sovereign immunity.

* * *

The rule of sovereign immunity traces its roots to the feudal times. It is often encapsulated in the phrase, “The King can do no wrong.” It was commonly believed and claimed that a monarch’s power derived from God: therefore, the exercise of this royal power was not open to challenge. Since kings and queens were above the law, it seemed a logical argument that the Crown could not be sued by its own subjects, in the very courts the Crown had created. This harsh rule was not without its critics, and it has been softened over time. However, it remains a central feature of many democratic governments.

South Dakota’s constitution says that the State cannot be sued unless the Legislature explicitly gives permission. It has done this on a number of occasions, including the establishment of the PEPL fund in 1986. This state program serves the same role as insurance, providing a source of payments for those injured in accidents caused by state employees. By law, those victims are expressly allowed to sue the State.

In the case of prairie dogs, however, the Legislature has not been as clear. Although one of our state statutes establishes a fund to pay ranchers affected by prairie dog incursions, there isn’t any specific language setting rates or allowing ranchers to enforce them. Similarly, the statute allowing ranchers to sue their neighbors for nuisances doesn’t contain the magic words that explain “in what manner and in what court suit may be brought against the State.” The absence of this kind of language means those suits are only permitted against private landowners, not the State.

The Court ruled, therefore, that the State is immune from liability here and dismissed the ranchers’ claims.

Court Refuses Mother's Request to Clear Her Name

Thu, 15 Dec 2011 08:00:00 EST

Police immediately began investigating the father’s role when an infant was rushed to the hospital with unusual bruising and breathing difficulties. The father was charged criminally, while both father and mother were asked to respond to an abuse and neglect complaint filed by the Department of Social Services. The story of this infant boy and his family is told in a case called In the Matter of M.V. (2011 S.D. 81).

* * *

In South Dakota, juveniles are often referred to in court pleadings by their initials. The young boy in this week’s case, “M.V.” was just a few weeks old when this story begins. His father, Utkarsh, had emigrated from India and was then 28 years old. The boy’s mother worked as a research physician for Sanford Health in Sioux Falls. After giving birth, M.V.’s mother took a month off. When she returned to work, her husband, Utkarsh, agreed to care for M.V. during the workdays. On the afternoon of October 1, 2008, Utkarsh heard his young son gasping for air and called 911. At the emergency room, a pediatric doctor noted bruises on M.V.’s legs, shoulders, face, and back, including one in the shape of a human hand. The boy also had extensive brain swelling and a swollen right eye. Three different doctors concluded that M.V. had experienced “non-accidental trauma.” Utkarsh apparently told one of the doctors that any legal proceedings from this incident should be directed at him, rather than the boy’s mother. Utkarsh claimed he was responsible for everything, “the good and the bad” since he is the one at home all the time. As for the source of the red marks, Utkarsh suggested they may have resulted from him holding his son in an unusual manner for 10 to 15 minutes while working at his computer desk. At the hospital, M.V. was taken into protective custody by the State of South Dakota. Upon learning this, Utkarsh said he didn’t want his wife to be prevented from seeing their son.
Despite Utkarsh’s urgings, the Department of Social Services continued to keep the child. Only after a few months did the Department, begin to reunify M.V. with his mother. Even afterward, the Department continued to supervise her custody for six months. Utkarsh eventually faced a criminal trial, where a jury acquitted him after a five day trial.
Meanwhile, both parents were facing an abuse and neglect proceeding in Circuit Court, filed by the Department of Social Services.
The mother claimed she had no knowledge or involvement in the abuse. She asked the Circuit Court to dismiss her from the proceedings because she was not the cause of the abuse or neglect, or, at a minimum to declare that she was not at fault. The Court refused, and she appealed.

* * *

An abuse and neglect proceeding is a different breed of lawsuit. Unlike a criminal trial, an A&N proceeding is not designed to create a winner and a loser, nor does it affix blame or declare guilt “beyond a reasonable doubt.” Instead, the court determines the “status” of the child. Specifically, the trial judge is asked to determine whether a child was abused or neglected, and, if so, where is the best possible placement for the child going forward. Both parents are named in these lawsuits as “respondents”, regardless of the custody arrangement or where the abuse occurred. Here, the trial court heard medical testimony and concluded that M.V. had been physically abused. The court also agreed that M.V. could return to live with his mother.
M.V.’s mother was upset, however, because the trial court’s ruling did not specifically exonerate her. Instead, the trial court concluded, generally, that M.V. was “subjected to mistreatment or abuse by a parent” and was living in “an environment injurious to the child’s welfare.” Under state regulations, M.V.’s mother was then automatically placed on a central registry of individuals involved with abuse or neglect. Since M.V.’s mother worked for Sanford, this designation threatened her job.
On appeal, the Supreme Court rejected her argument. The Court explained that the purpose of the A&N proceeding was to determine whether M.V. needed the court’s protection, and, if so, who was the best person to provide it. The guilt or innocence of either parent was for another court to decide.
Similarly, the Court concluded that if M.V.’s mother was improperly placed on a list of registered “abusers”, then her remedy would be to ask the Department to remove her. If it continued to keep her on the list without justification, she would be entitled to bring a lawsuit against the Department.
According to court filings, her name has been removed from the registry.

Location, Location, Location

Thu, 15 Dec 2011 08:00:00 EST

When South Dakota closed the interstate exit closest to Ellsworth Air Force Base, a neighboring truck stop lost almost all of its customers. The truck stop then asked the State to pay for its lost business in a case called Fuel-Food Mart, Inc. v. South Dakota Dep’t of Transportation (2011 S.D. 70).

* * *

The Eisenhower Interstate System came to South Dakota in the early 1960’s. My father was in his twenties and serving as a Boy Scout troop leader. In order to advance to Eagle Scout, one of his troop members still needed the “Ten-Mile Hike” merit badge. The student was confined to a wheelchair and had limited physical strength. My father found a solution in the new interstate being built through town. Its smooth, empty lanes were still closed to traffic, but perfect for a ten-mile roll. My father laced up his jogging shoes, loaded up the student, and drove the nearest on-ramp. A few hours later, the student had earned his badge.

Around that same time, and on the other side of the state, I-90 was being paved past Ellsworth. The influx of traffic to Exit 66 fostered a very busy and profitable Flying J truck stop. By the mid-1990’s, there was a growing consensus that it was time to move Exit 66. Ellsworth was on the chopping block, and one of the criteria used to evaluate base closures was the presence of incompatible uses. The Flying J (and Exit 66) presented a safety issue because it was too close to the main runway. In 2003, Exit 66 was replaced by Exit 67, one mile east. Without the interstate access, the Flying J closed for business. Problem solved, and air base saved.

But for Flying J, this solution was financed entirely of its own pocket. It believed that the State was required to compensate the truck stop for this loss of its business. With this understanding, the landowners filed a lawsuit to recover damages for something called “inverse condemnation.”

* * *

The state uses its right of eminent domain to forcibly buy private land and then put it to public use. In exchange for this right, the constitution requires the state to compensate the owners. This is what happened back in 1961 to create the interstate and its exits. The State needed the land for a public purpose and forced all of the affected landowners to sell.

“Inverse condemnation” is the name used when the state doesn’t actually condemn or take any property, but does something that indirectly impairs its value. Most often, this type of claim is made about a new law or regulation. For example, if a city decided to ban the sale of hot coffee, then all of the coffee shops in town would be entitled to bring suit against the city to recover compensation for the taking of their business, even though the city didn’t actually condemn any of the shops.

Here, Flying J argued that the closing of Exit 66 was an inverse condemnation: its truck stop depended on I-90 travelers who now had no access, as a direct result of the state’s action. Our Supreme Court concluded that this was, indeed, an inverse condemnation, and that Flying J was entitled to be paid for it. Significant to the Court’s decision was the history of the original condemnation, back in 1961.

Whenever land is taken for public use, the owner is entitled to compensation at the market rate. However, the state is allowed to discount that amount if the new, public use will add value to the surrounding land. In 1961, the State had done just that: it discounted its purchase price of the land around Exit 66 for the very reason that the remaining land would soon be a lot more valuable. The Court decided it was fair, then, for the landowner to seek the rest of that compensation now that the exit was being removed.

The Court concluded by explaining that the constitution prevents individuals from being unfairly burdened with the cost of public projects. Instead, those should be paid for by all of us.

Here, the closing of the Flying J may have helped save Ellsworth, and the public has a responsibility to share that cost.

Nature-Lovers, Chainsaws, and a Great Governor

Thu, 15 Dec 2011 08:00:00 EST

When the Forest Service announced a plan to begin logging the oldest trees in the Black Hills, a pair of environmental groups filed suit to keep the wildlife preserve untouched. The case is called Friends of the Norbeck v. United States Forest Service.

* * *

Since this week’s case involves the Norbeck Wildlife Preserve, we’ll start with a quick detour into the life of one of our greatest governors. Peter Norbeck was an influential “founding father” of our State and the first governor born in South Dakota (to Scandinavian immigrants homesteading in a sod shanty near Vermillion). After college, Norbeck made a successful living as a farmer and well-driller, and then spent the last three decades of his life in public service. Norbeck was a progressive Republican, cut from the same cloth as Theodore Roosevelt. He started the state cement plant; a state coal mine; and a program for free school textbooks. But above all, Norbeck was fiercely devoted to the cause of conservation. He first visited the Black Hills at age 35 and spent the rest of his life inspired as its champion. He was the driving force behind Mt. Rushmore, the Needles Highway, Custer State Park, and a federal wildlife preserve surrounding Harney Peak. Congress renamed the 44-square mile preserve to honor his legacy.

The Norbeck Preserve was established “for the protection of game animals and birds.” It is pristine forest, untouched by logging, mining, or development. The Preserve is home to hundreds of species of birds and animals, including some that are rare or threatened. They live among very dense stands of “old growth” ponderosa pine. After years of successfully preventing wildfires, the Forest Service unintentionally created an area that is overgrown and at risk of a catastrophic fire. Recently, an outbreak of mountain pine beetles began killing off the old pines. At the current rate, all of the old-growth trees will be dead of natural causes by 2020. To prevent or manage this cataclysm, the Forest Service adopted a plan to thin the forest with controlled burns and logging. In addition, it adopted a plan to closely monitor and protect twelve “focus” species in the preserve, with the hope that those twelve would be representative of the hundreds found there.

Two environmental groups challenged the Forest Service plan, suggesting, instead, that the area should be left untouched. They questioned whether the list of twelve, focus species accurately reflected the range of wildlife to be protected. And they advocated a ban on cattle grazing in the preserve.

In response, the Forest Service argued its plan was reasonable, even if not perfect.

* * *

Federal agencies are the arms of the executive branch: creating and enforcing rules and regulations that turn Congress’s laws into action. Administrative agencies have a tremendous amount of power with relatively little oversight. Its officers are not elected, but instead serve at the pleasure of the President. It is very, very difficult to challenge agency decisions in court. Normally, its actions are upheld, as long as they are not completely arbitrary or in violation of the law.

Courts recognize that there are always numerous ways in which an agency could implement congressional policy. In addition, an agency is presumed to have more expertise and training than the federal judge looking over their shoulder. Further, the agency officials are selected by the President, so its decisions are considered an extension of his electoral mandate.

Here, the Forest Service was told by Congress in 1920 to create and manage the Norbeck Preserve “for the protection of game animals and birds.” This broad mandate was not accompanied by any more specific standards. The federal court here (as in all administrative cases) refused to substitute its judgment for the Forest Service’s. It deferred, instead, to the biologists and foresters who developed the logging plan.

The court noted the complex interrelationships among species in the Preserve: thinning the old pines would help some threatened species, but would reduce Merriam’s turkey and white-tailed deer; however, turkey and deer are abundant in other areas of the Black Hills. Meanwhile, a certain species of woodpecker thrives on mountain pine beetles, but destroys the nesting habitat for other species.

In the end, the court refused to second-guess the Forest Service and approved its logging and management plan for the Norbeck Preserve.

Courts Help for Abuse Victims Has Limits

Wed, 14 Dec 2011 08:00:00 EST

The recent scandal at Penn State sheds light on a subject that nobody likes to talk about. The victims endured unspeakable acts at the hands of a trusted adult. Unfortunately, this is not a rare tragedy. Instead, childhood abuse is something that has endured for generations, in every corner of this nation, including here in South Dakota. A sixty-four year old man broke four decades of silence to tell his story in Iron Wing v. Catholic Diocese of Sioux Falls (2011 S.D. 79).

* * *

“D.Z.” Iron Wing spent eleven years as a student at the Catholic boarding school in Marty, South Dakota, beginning in the mid-1950’s. More than forty years after graduating, he joined with several classmates in a lawsuit against a priest, a nun, their school, and the Church. Each alleged sexual abuse.
Mr. Iron Wing testified that his abuse began at age ten. He explained that the dorm matron, Sister Poitra (now deceased), would bring him into her room while the other children were sleeping and fondle him for several minutes. He estimated that this happened around a dozen times over the next three years. He later moved into the high school dorm, and he recounted similar things happened with a priest, on eight or nine occasions:
“He sat down beside me and he started to like rub my forehead. He told me I was going to go to sleep. He told me when I woke up I wasn’t going to remember anything.
“But I didn’t go to sleep. I just closed my eyes because I was too afraid to go to sleep. But once he thought I was asleep, then he took my shorts off of me.”
As a junior in high school, Mr. Iron Wing finally summoned the courage to tell his parents. Their reaction, however, was not what he expected. His stepmother “walked up beside me and she slapped me alongside the head. She said, ‘How dare you talk about those people, those priests, those nuns, how dare you talk about them like that? Those are people of God! They don’t do those kinds of things! Who are you to go and spread lies?’”
After that, Mr. Iron Wing never told anyone else of the abuse until filing his lawsuit in 2008.
The Church (and the other defendants) filed a motion to dismiss, alleging the suit was untimely.

* * *

All legal claims have a shelf life. If the lawsuit is not started before the deadline, it will be barred forever, even if the claim has merit. For child sex abuse cases in South Dakota, the time limit for bringing a lawsuit is three years. However, the time is not measured from the date the abuse occurred. Instead, the three-year clock begins running when victims are put “on notice” of the connection between the abuse and their injury. To determine this date, a court inquires when a “reasonably prudent person” would have investigated and discovered the connection.
The “reasonably prudent person” is a hypothetical standard created in the law. It’s like a fictitious neighbor who acts the way ordinary people do: not holy or perfect, but with a reasonable amount of skill and care in their daily lives. Under the law, our behavior is often judged according to what this person would do if he or she were in our shoes. In car accidents we ask what a reasonable, careful driver would do. In medical malpractice cases we ask what a reasonable, careful doctor would do.
Here, the Court asked whether a reasonable person in Mr. Iron Wing’s situation would have connected the dots between his abuse and the injury more than three years before he filed this lawsuit. The Court keyed in on the fact that for four decades Mr. Iron Wood remembered everything that had happened and continued to harbor tremendous hatred and anger toward the Church. Even though his depression and post-traumatic stress disorder weren’t diagnosed until very recently, the Court decided this chronic anger and resentment would have caused a reasonable person to investigate and act sooner.
His case was dismissed.

* * *

Mr. Iron Wing’s case reminds us why childhood abuse can go unpunished and unnoticed: because of the fearful silence of children and the complicit silence of adults. If you suspect abuse, the time to speak out is right now. Child abuse is a felony, and in certain cases, concealing it is also a felony.
Make a plan to contact law enforcement, and use an attorney if you are unsure of what to do. Find a friend, counselor or pastor you trust and begin the dialogue.
Do something to end the hurt.

All's Fair in Kids and Money

Tue, 29 Nov 2011 08:00:00 EST

Two recent cases decided by our state Supreme Court involve a common thread: kids and money. In the first, a teacher’s union and school district haggle over salaries. In the second, a mother and father dispute the correct amount of child support. The opinions are called AFCSME Local 1025 v. Sioux Falls School District (2011 S.D. 76) and Linge v. Meyerink (2011 S.D. 78).

* * *

In South Dakota, education funding comes from several sources, but revolves primarily around the per-pupil “State Rate.” That figure was set by the Legislature in 1995 and it increases annually by at least 3%. Each district is allotted the State Rate multiplied by the number of students enrolled. (Smaller districts get a little more.) Educator salaries in Sioux Falls are tied to the State Rate: the teachers’ contract specifies that their wages will increase each year by the same percentage as the increase to the State Rate.

In 2008, however, things got complicated when the Legislature announced two, different increases. Any district that promised to raise teacher salaries by 3%, was entitled to a 3% increase in per-pupil funding, but for all other districts, the State Rate would increase by 2.5%. In order to take advantage of the 3% funding increase, the Sioux Falls School District promised the State that it would be giving 3% raises to its teachers. However, after making that commitment, the District then adopted a budget with only 2.5% raises. The teachers’ union challenged this decision in court.

In its defense, the District argued, first, that the teacher’s union missed the 30-day deadline for protesting this issue. The District also advanced a rather convoluted theory as to why it could benefit from a 3% increase in the per-pupil rate, but only give its teachers a 2.5% pay bump.

The Supreme Court rejected both of its arguments, and the teachers will get their raises (although almost three years after earning them).

* * *

Our Court’s other recent case involves the rules relating to child support.

Linda Linge and Steven Meyerink were married in 1989 and divorced 11 years later. Linda retained custody of their two children. Steven has dutifully paid child support ever since. In 2010, Linda filed a petition to modify Steven’s monthly child support obligation, which had remained at $515 for almost a decade.

Child support modifications are heard by a referee, (usually an attorney), appointed by the court to take the parties’ testimony, review their financial records, and then make a recommendation with a proposed amount. Almost all child support cases are decided based on a very straightforward formula: the wages of both parties are plugged in; some deductions are made for expenses like retirement contributions; and the result is the amount owed in child support.

Using the formula, the referee determined that Steven’s new obligation should be $749 per month. However, the referee also learned that Steven’s current wife suffers from a very serious medical condition. She is unable to work and is on permanent Social Security disability benefits. Steven has struggled to stay afloat. Each month, at least $500 of her medical bills are not covered by insurance. He also incurs substantial expenses to travel with his wife to California for treatment. As a result, Steven has accumulated $60,000 in new debt; refinanced his mortgage to an interest-only loan; borrowed money on credit cards; and taken out a new loan on his used pickup. Based on these circumstances, the referee lowered his new obligation from $749 per month to $449 per month.

Steven’s ex-wife disagreed, noting that this was even less than he was already paying. She appealed the decision into Circuit Court, and then to the Supreme Court.

Both courts upheld the referee’s decision to reduce the child support obligation. The referee had relied on an exception that allows a deviation from the standard formula if using it would be “inequitable”. Here, the courts agreed that Steven’s dire financial condition was a valid reason to use the deviation rule and reduce his child support obligation.

If you’re paying or receiving child support, I encourage you to use the state’s online calculator to see if your current payments are in line with the formula. Go to dss.sd.gov and click on the “Child Support” link. But keep in mind that each case is unique, so the result is only an estimate.

How a South Dakota Personal Injury Attorney Proves Trucker Negligence

Mon, 28 Nov 2011 08:00:00 EST

DMV Helps Avoid South Dakota Personal Injury Cases for Older Drivers

Sun, 27 Nov 2011 08:00:00 EST

South Dakota Car Accidents Improved by Restricted Licenses to Elderly

Wed, 23 Nov 2011 08:00:00 EST

You Have the Right to Remain Silent..."

Mon, 14 Nov 2011 08:00:00 EST

Police suspected foul play while investigating an infant's death in Sioux Falls. Their suspect confessed after a six-hour, video-taped interrogation. He later claimed that he had been tricked into making those incriminating statements. Whether his confession could be shown to the jury was decided in State v. Christopher Brian Fisher (2011 S.D. 74).

* * *

Sixteen-month-old Preston Vensand died at home on Thanksgiving Day, while in the care of his mother's boyfriend, Christopher Fisher. Just before dawn, Mr. Fisher awoke to the sound of Preston struggling to breathe. Paramedics responded quickly but could not resuscitate him. Police brought Mr. Fisher in for questioning. He described three recent events that might explain Preston's death.

He said that the boy had fallen down while roughhousing with his siblings; he appeared to have a "bug" because he threw up on himself; and Preston had hit his head on a toy boat during a bath. The detective suspected, instead, that the baby had been shaken to death. He began stretching the truth in order to get Mr. Fisher to confess.

The detective claimed that doctors had examined Preston's body and concluded that he had been shaken. He said that Preston's retinas were detached, which was conclusive proof. He further claimed the doctors said that Preston's injuries could not have resulted from a fall.

But none of this was true. No doctors had examined Preston's body nor made any conclusions about the cause of death. Furthermore, an autopsy would later reveal that Preston's retinas were not detached. Mr. Fisher maintained his innocence, so the officers then invited him to take a polygraph. He agreed, but failed it.

The detectives continued to probe. Mr. Fisher began changing his story: he claimed he had fallen while carrying Preston into the bedroom or the kitchen. He then said Preston fell from the bathroom sink while unattended.

The detectives pressed on. They presented Mr. Fisher with a doll and asked him to demonstrate how he shook Preston. Mr. Fisher initially refused, but eventually gave in. He said Preston wouldn't stop crying. He grasped the doll by its shoulders to show how he had shaken him. He heard Preston's teeth clicking together while his head snapped back and forth. Mr. Fisher was charged with murder and manslaughter.

Before trial, he challenged the State's plan to play the confession video to the jury because it was involuntary and obtained via deception.

* * *

Thanks to television, there is perhaps no more famous legal phrase than "You have the right to remain silent." It comes from a landmark court case called Ernesto Miranda v. Arizona.

The high Court overturned Mr. Miranda's rape conviction because he signed a written confession without first being told he could talk to a lawyer or refuse to speak with police. Many Americans criticized the Court's 1966 decision because it made it harder to convict criminals. Although Miranda warnings do make police work more difficult, they serve an important purpose: as safeguards to protect our criminal justice system and our individual rights. (In Mr. Miranda's case, though, there was still enough evidence to convict him at a second trial, even without his confession.) But a warning is not enough. In order to be used as evidence, a confession must also be completely voluntary. Police are allowed to use trickery and psychological tactics, as long as the methods don't overbear the defendant's free will.

Here, Mr. Fisher claimed that he had slept only three hours the night before; that he was very emotional; that he had nothing to eat at all that day; and that the officer's lies coerced him into confessing. The Court disagreed. It noted that Mr. Fisher was 26 years old and enrolled in college courses; he had previous experience with the criminal justice system; and he had access to his cell phone during the entire interrogation. He was offered beverages, coffee, cigarettes, and several bathroom breaks; he was read his Miranda rights twice during the interview; and Mr. Fisher was able to resist law enforcement for most of the six hours, by giving very detailed, alternate explanations.

The Court concluded Mr. Fisher's free will remained intact and upheld his conviction for manslaughter. He is serving a sixty-year sentence.

Personal injury or fatality from a South Dakota crash? We can help.

Wed, 09 Nov 2011 08:00:00 EST

The death of a beloved family member is not only difficult to handle emotionally, but financially as well, especially if the family member handled the household finances. If a loved one was killed in a South Dakota car accident due to the negligence, recklessness, or intentional act of another, you should file a wrongful death lawsuit against the wrongdoer. This civil suit can help you recover from your emotional and financial loss.

A wrongful death lawsuit is complex and involves the following:

Contacting a South Dakota personal injury attorney or car accident attorney: An experienced lawyer will evaluate your case and lead you through the process.
Obtaining a settlement: Your attorney will try to settle the wrongful death case to avoid the prolonged trial process.
Filing a wrongful death lawsuit: If the case cannot be settled, your attorney will file a lawsuit and the defendant/wrongdoer will be served and given time to respond to the complaint.
Wrongful death trial: If the case moves forward to trial, at first this will involve discovery, motions, and conferences with the judge, all of which your South Dakota personal injury lawyer will take part in to represent your best interests. The trial will involve presenting evidence and examining witnesses. It may take place in front of a judge or jury.
Damages: If the verdict is in your favor, you will then collect damages for your emotional and/or financial pain and suffering.

If you would like to discuss the filing of a wrongful death lawsuit, or if you or a loved one has been injured in a motor vehicle crash and would like to file a South Dakota personal injury claim, contact an experienced South Dakota personal injury lawyer at Zimmer, Duncan & Cole. Our attorneys have been representing clients and their families in car accident and wrongful death cases since 1948. Call toll free at (888) 733-2992, or complete the contact form on this page. You don't have to go through this alone. Our attorneys are here for you.

Important Motorcycle Laws Examined by South Dakota Motorcycle Attorney

Tue, 08 Nov 2011 08:00:00 EST

An Estate Tax Rate of 100%

Tue, 08 Nov 2011 08:00:00 EST

When a rancher died with an estate worth millions, his long-lost relatives emerged from far and wide to claim a share.
To complicate matters, the intent behind the rancher's written will was unclear, making it possible that the State of South Dakota could be entitled to everything.
Our state Supreme Court took up the case twice in order to carve up the Estate of Robert G. Jetter.

* * *

Robert Jetter and his brother Martin were lifelong bachelors who farmed and ranched in Haakon County, northeast of Wall. Neither had children nor ever married.
In 1981, both Robert and Martin went to visit a lawyer and drafted identical wills. Both were written so that the estate of whichever brother died first would go only to the surviving brother.
In addition, each will contained a clause that said, "I have intentionally omitted all of my heirs and all other persons whomsoever, who are not specifically mentioned herein." In other words, the brothers were disinheriting everyone else.
Martin died first, and Robert inherited his land. By this time, however, Robert was in a nursing home and mentally incompetent. He was not aware that his brother had died, and he didn't attend the funeral.
A few years later, Martin died. By then, his land holdings were worth $3.2 million.
A probate file was started at the courthouse so that his estate could be distributed. And that's when the fighting began.

* * *

Initially, the State of South Dakota argued that it was entitled to all of Robert's estate under the doctrine of "escheat" (ess-SHEET). This word comes from the Latin phrase "to fall out". In law, it means that land is falling out from a family's possession, and into the hands of the state.
Escheat is very rare, in part because of the rules that govern estate proceedings. If someone dies without a will, their property passes to their closest relative.
There are several rules that define who that is. For example, if you're married, your closest relative is your spouse (unless you have children from a previous relationship, in which case the current spouse and those children would share your estate).
Without a spouse or children, the law treats your parents as next in line, followed by your siblings and half-siblings, then your grandparents, and then eventually your nephews, nieces, cousins, etc.
If no living relatives can be found, no matter how remote, the entire estate escheats to the State. This does not happen very often since almost everyone has at least a distant cousin out there somewhere.

* * *

The problem with Robert Jetter's will was that it didn't make it clear what should happen if he lived longer than his brother. Did he really want to disinherit all of his relatives and let the State take it all?
The State argued that this was exactly what he intended. On the other side of the courtroom, there were three groups of relatives vying for a share.
First, Robert had an alleged half-brother whose descendants might be entitled to everything.
Or, if the half-brother story was disproved, then Robert's estate would be split equally between the group related to his mother and the group related to his father. (Robert had never met his father's relatives, all of whom were from Germany.)
As you can already see, the moral of the story is that it's always better to have a will that is carefully drafted to explain your intent in every situation.
The Supreme Court determined, initially, that Robert did not intend for the State to get everything if he outlived his own brother. Instead, the Court pointed out that it couldn't find any case in the last 300 years where the state got the money instead of living, distant relatives.
Next, the Court had to sort out the claim that Robert had an alleged half-brother. As proof, the family introduced an eighty-year old steamship passenger document, in which Robert's father acknowledged in front of a notary public that Johnnie Jetter was his son. In addition, Robert had acknowledged to his lawyer that Johnnie was his half-brother. This was enough to satisfy the Court.
Robert's estate was then divided among the descendants of his half-brother. Everyone else, including the state, got nothing.

Avoid a Third South Dakota DUI, Avoid a Felony Conviction

Mon, 31 Oct 2011 08:00:00 EST

In South Dakota, a driver can be charged with driving under the influence of alcohol if the BAC (blood alcohol content) is .08 or higher. While a first- or second-offense DUI conviction involves fines, imprisonment, and loss of a driver's license, a third South Dakota DUI conviction is something that should be avoided at all costs. Not only are the penalties increased significantly, but a conviction of a third DUI charge is a criminal felony offense.

If you are facing a third South Dakota DUI charge, you will face the following penalties if convicted:

Fine of up to $2000
Significant jail time
Substance abuse treatment
Loss of driver's license for no less than one year once released from prison
If the driver is caught driving during the time the license is revoked, there is automatic jail time that will not be suspended

Criminal records are considered public and since a third DUI conviction in South Dakota is a class-six felony, this becomes a part of the permanent record which can be viewed by employers while conducting background checks. Many jobs are off-limits to felons, including those at privately-owned companies, law enforcement, and government jobs.

Another difficulty with re-entering the work force once convicted of a third DUI in South Dakota is that the driver will have lost his or her license for at least one year. Therefore, being able to get to the job poses another problem, as employers count on reliable employees to get the work done.

If you have been charged with driving under the influence, contact a South Dakota DUI lawyer at Zimmer, Duncan & Cole. Our attorneys have been fighting and winning DUI cases throughout South Dakota since 1948. Call an experienced South Dakota DUI attorney at (888) 733-2992, or complete the contact form on this page; we are ready to fight the DUI charge before it becomes a conviction.

South Dakota DUI Second Offense Treated as First under Washout Period

Thu, 27 Oct 2011 08:00:00 EST

If you have been convicted of a first offense DUI (driving under the influence) in South Dakota, you can expect to face a fine and/or possible imprisonment, and the loss of your driver's license, ranging from 30 days to one year. In general, it should be noted that a typical loss of a driver's license for a first-offense South Dakota DUI is approximately 30 days. For a second-offense DUI in South Dakota, you will also face fines and/or possible imprisonment, but you can also expect to lose your driver's license for a minimum of one year. That is, unless the statute of limitations has run out on your previous DUI conviction.

South Dakota DUI law includes a "washout" or "lookback" period which states that if an individual was convicted of a DUI more than ten years prior to the current DUI charge, the new charge is treated as a first offense. Therefore, even if you have been convicted of a DUI in the past, it will not impact a current conviction if the ten-year statute of limitations has passed.

Convictions of both first- and second-offense South Dakota DUI charges are considered class-one misdemeanors. If you are convicted of a second-offense DUI, and it has been less than 10 years since the first conviction, you will lose your driver's license for a minimum of one year. Additionally, if you are then convicted of driving during the time when your license was revoked, you will receive mandatory jail time that will not be suspended.

If you or a loved one has been charged with driving under the influence in South Dakota, contact a South Dakota DUI lawyer at Zimmer, Duncan, and Cole. Call our office toll-free at (888) 733-2992, or complete the contact form on this page to speak with a knowledgeable South Dakota DUI attorney. Contact our office for assistance before you lose your license or the DUI charge becomes a misdemeanor conviction on your permanent record.

That's No Way to Treat a Railroad

Wed, 26 Oct 2011 08:00:00 EST

Midwest Railcar Repair is located just north of Corson, South Dakota, along a spur of the Burlington Northern Santa Fe Railroad. Each month, Midwest fixes around 200 cars of all types: flatbeds; hoppers; tankers; and boxcars.
The company's services include warranty repairs; refurbishing wrecks; paint jobs and decals; and reconditioning railcars after the end of a lease. Many parts are fabricated on-site. The company even has a kosher-certification for food-grade tankers.
Its customers include railroads like Burlington Northern. When it bills the customer for the parts and services provided, our Department of Revenue collects an extra 4% sales tax on each transaction.
Midwest believed that this sales tax violated federal law and brought a lawsuit.

* * *

Very few disputes end up in federal court. By design, Congress has limited the type of cases that its federal judges are allowed to hear.
A federal lawsuit must either involve some question of federal law or a major dispute between citizens of different states. In contrast, state courts have broad, general jurisdiction to hear almost any kind of case.
The federal law involved in this week's case is a mouthful: the Railroad Revitalization and Regulatory Reform Act of 1976.
The 4-R Act was passed at a critical and uncertain time for America's railroads. Increasing competition from airlines and the Eisenhower Interstate System had led to the bankruptcies of the Pullman passenger car company and many major railways.
As lawmakers sorted through the rubble, they flirted with the idea of nationalizing the passenger and freight systems. Spurred by the leadership of President Ford, Congress enacted sweeping reforms that attempted to put the future of freight rail in the hands of market forces, rather than government regulators.
Within five years, the newly created Conrail freight line was turning a profit and was then sold to private investors. (On the passenger side, Amtrak is still in public hands today and has never turned a profit.)
A key component of the 4-R legislation was its strict limitation on taxation by state and local governments.
For over a century, railroads had been sitting ducks for local taxes. A railroad is usually from out-of-state; it is perceived to be very wealthy; and it is extremely difficult for a railroad to pack up its track and leave if it disagrees with a tax.
In response, the 4-R Act attempted "to remove the temptation to excessively tax railroads". Any state or local tax that discriminates against railroads is now prohibited.
Over the years, our courts recognized that certain taxes could result in unfair treatment of railroads, even though the tax was levied upon a third party.
The key in those cases is whether the tax on the third party has a discriminatory effect against railroads.
Here, Midwest Railcar pointed out that as a supplier of parts and services directly to railroads that any tax on its transactions necessarily affected each railroad's bottom line.
The Department of Revenue disagreed, as did the Court of Appeals. In short, the relationship between Midwest Railcar and the railroads was not close enough.
The Court explained that in previous cases, the third-parties were essentially corporate subsidiaries or adjuncts of the railroads. Here, Midwest Railcar was viewed as an unaffiliated business that merely provides repair services directly to railroads.
If that sounds like a distinction without a difference, then you're in the same camp as Judge Kermit Bye, who dissented in this 2-1 decision.
He questioned the majority's analysis and pointed out that the test is "whether the tax increases the cost of an activity to a rail carrier's detriment." Here, it does. So Judge Bye would have invalidated the tax.
In federal appeals, this is not necessarily the end of the road. In rare cases, the rest of the 11 circuit court judges can decide to rehear the case. Or, the U.S. Supreme Court can take up the issue. If neither of those occurs, the tax on railcar repairs will stand.

http://www.ca8.uscourts.gov/cgi-bin/new/getDocs.pl?case_num=10-2630&from=inter

Steps for Avoiding South Dakota Will Contests

Sat, 22 Oct 2011 08:00:00 EST

Should you take a breathalyzer if stopped for a South Dakota DUI?

Fri, 21 Oct 2011 08:00:00 EST

Being pulled over for a South Dakota DUI and dealing with a police officer after you have had a few drinks is stressful. Answering questions, undergoing field sobriety tests, and being asked to take a breathalyzer test can all be challenging. If you are stopped by the police for DUI in South Dakota and the officer asks you to take a breathalyzer, would you know how to respond?

Due to the questionable accuracy of a breathalyzer test, including possible issues with the validity and administration of the test or even the person's body chemistry, the results of a breathalyzer cannot be used for evidentiary purposes in a criminal proceeding in South Dakota. However, the results can be used to bring a South Dakota DUI charge against a driver. Once a charge is brought, it is important to fight that charge with the assistance of a South Dakota DUI attorney, because a class 1 misdemeanor becomes a part of your permanent record. This can have significant repercussions for present and future employment. In addition, you can expect to face fines, imprisonment, and the loss of your driver's license.

If you have been stopped for a South Dakota DUI and refuse to take the breathalyzer, you can expect the following:

A possible one-year license suspension;
The refusal to be admissible in a criminal proceeding.

If you have been pulled over for driving while intoxicated (DWI) in South Dakota, taking a breathalyzer test is an important decision. If you are facing a South Dakota DUI charge, contact an experienced criminal defense attorney at Zimmer, Duncan & Cole. Our attorneys have been representing clients with DUI charges and winning cases throughout South Dakota since 1948. Call our office toll free at (888) 733-2992, or complete the contact form on this page to speak with a South Dakota DUI lawyer today.

What are the steps for contesting a will in South Dakota?

Wed, 19 Oct 2011 08:00:00 EST

Contesting a will is a complicated process in South Dakota, especially since nobody wants to appear selfish, greedy, or unappreciative in front of their loved ones. However, it is important for you to contest a will if it appears that the distribution of the estate was not reflective of the testator's intent and was not in the estate's best interest.

The steps for Sioux Falls will contests include:

Standing: Determine whether or not you have a right to contest the will. Only a person with an interest in the estate, such as a beneficiary or a potential beneficiary, may contest a will.
Determine a legal basis: A will cannot be contested solely because you feel cheated or snubbed by the distribution of the estate. There must be a legal reason to contest a will. A South Dakota will can be contested based on undue influence, if the testator was of unsound mind, or if fraud or lies were involved in executing the will. A will may also be contested on the basis that it was not properly drawn, signed, or witnessed according to the laws in South Dakota.
Legal assistance: You will need to hire a Sioux Falls will contest attorney to contest a will in South Dakota. A lawyer will know how to navigate the complex legalities, such as appearing in court to present your case, organizing and presenting evidence, and questioning witnesses.

Contesting a South Dakota will is a difficult and lengthy process. If you believe a will does not reflect the testator's intent and that the distribution was not in the best interest of the estate, contact a Sioux Falls will contest lawyer. Call the attorneys at Zimmer, Duncan & Cole. With offices in Sioux Falls and Parker, we represent clients throughout South Dakota. Contact our office toll free at (888) 733-2992, or complete the contact form on this page to speak with an experienced South Dakota will contest attorney. You also can order a copy of our book, A Step-by-Step Guide to Will Contest Cases-What You Should Know Before You Meet with a Lawyer.

South Dakota Personal Injury Attorney's Key Documents in Truck Crashes

Tue, 18 Oct 2011 08:00:00 EST

Keep the Trains Running on Time

Mon, 17 Oct 2011 08:00:00 EST

A railroad worker slipped on a patch of ice in the switching yard, breaking his elbow and injuring his shoulder. A jury decided that his injuries were worth $300,000. The railroad thought differently. It appealed the verdict to our state Supreme Court in a case called Donald Jacobs v. DM&E Railroad (2011 S.D. 68).

* * *

The Dakota, Minnesota & Eastern Railroad Corporation is a real-life example of "the little engine that could". It started from nothing and never gave up.

The year was 1983, and the Chicago & Northwestern Railroad had announced it was abandoning its east-west line across South Dakota and Minnesota. The closure of our state's only east-west rail artery didn't sit well with South Dakota's grain customers or its senior senator, Larry Pressler. By 1986, a deal was brokered to create a tiny new railroad out of this unwanted stretch from Rapid City to Winona. The purchase included three dozen locomotives and 800 miles of forlorn rail beds. Because the route was not a money-maker, Chicago & Northwestern had done very little in the way of upkeep and maintenance. The tracks were in such terrible condition that it took three days to haul a load from one end to the other.

The railway persevered and quietly grew. From a simple brick building in downtown Sioux Falls, its managers nurtured DM&E into the 8th largest rail system on the continent. In 2008, it was sold for an eye-popping $1.5 billion.

But its history was not all roses. At the time of its sale, the Mankato Free Press reported that the DM&E had one of the worst rail safety records in North America. And this, perhaps, is what the jury recognized when it awarded $300,000 to DM&E's injured employee.

* * *

Don Jacobs worked at the company's Huron yard as a rail car mechanic. Each day he would drive his truck on the graveled paths in the yard to meet up with train crews. They reported any mechanical problems to Don, who would then work on fixing the broken rail cars. The rail yard did not drain well; during the winter months ice would accumulate in several places. South Dakota winters often added layers of snow on top.

Don was issued metal "ice cleats" to wear over his boots. But on the day in question, even the cleats weren't enough to protect him. As he walked back to his truck, he slipped on a snow-covered patch of ice. He landed on his elbow, fracturing it, and hurting his shoulder. His injuries caused permanent problems.

Don brought a lawsuit against DM&E. The jury weighed all the evidence, and determined that $300,000 would compensate Don for his injuries and his resulting loss of employability.

* * *

On appeal, DM&E raised two major objections to the jury's verdict. First, the railroad argued that Don's injuries were not foreseeable. "Foreseeability" asks whether this type of accident could have been predicted. We ask this question because the law recognizes it is unfair to make someone pay for harm they couldn't have prevented. Importantly, the question isn't whether this exact accident could have been predicted, but, instead, whether the general danger should have been recognized.

In a case like this, we look at what the railroad knew, but also what it could have known if it had been acting like a typical, careful business. Here, the Court decided that DM&E foresaw the hazard presented by ice accumulation in the yard. The jury saw photographs depicting water puddles and poor drainage at the Huron rail yard. DM&E also gave Don ice cleats for this very type of danger.

DM&E's second objection was about Don's damages for his loss of future earning capacity. In particular, DM&E suggested his future losses were too uncertain. After Don's recovery, he went back to work for DM&E, apparently at the same rate of pay, but in a new position to accommodate his injuries. The Court pointed out, however, that Don's injuries left him with significant work limitations. Since he was not guaranteed a lifelong job at DM&E, it was reasonably likely that Don's limitations would financially affect him in the future. His injuries will likely mean more unemployed time between jobs and lower paying jobs when he does find work.

The Court affirmed the jury's decision in favor of Don.

How to Bring an Undue Influence Claim in a South Dakota Will Contest

Wed, 12 Oct 2011 08:00:00 EST

Imagine losing a beloved family member whose will is then probated in South Dakota. Then imagine the will indicating that your beloved family member has left a part of the estate to someone you have never met or barely even know. This comes as a shock not only to you, but also to the other family members who consider themselves beneficiaries of the estate. Nobody wants to look greedy, but what can you do in such a situation?

A person cannot contest a will solely because he or she feels slighted by the distribution of assets. However, a person with standing may contest a will in South Dakota once it is probated based on a claim of undue influence. The elderly often become victims of undue influence, financial manipulation, scams, or fraud because they easily succumb to outside pressures and coercion. Undue influence occurs when outside pressures negate the testator's own free will.

If you believe that the distribution of the estate as set forth in the will does not reflect the testator's intent, speak with an attorney about contesting the South Dakota will on the grounds of undue influence. Contesting a will may be a lengthy process. Therefore, you should speak with an experienced Sioux Falls will contest lawyer if you believe that your beloved family member was a victim of undue influence when the will was developed or as the result of a last-minute change. Contact a knowledgeable Sioux Falls will contest attorney with Zimmer, Duncan & Cole by calling toll free at (888) 733-2992 or by completing the contact form on this page. You also can order a copy of our free book, A Step-by-Step Guide to Will Contest Cases. Contact our knowledgeable attorneys today before time runs out on your claim.

Who is at fault for a South Dakota car accident in severe weather?

Tue, 11 Oct 2011 08:00:00 EST

Severe weather causes hundreds of car accidents in South Dakota every year, with the extent of the damage ranging from minor property damage to serious personal injuries and fatalities. Not only does severe weather strike in the winter months with snow, ice, and sleet, but it also is common for rain and fog to create hazardous conditions throughout the year. But who is at fault for a motor vehicle accident that occurs in severe weather?

Drivers in South Dakota have to be flexible and attentive when driving in harsh weather in order to avoid collisions. If the road is slick from the accumulation of water or ice, the tires will lose traction and the driver will not be able to maintain control of the vehicle. Drivers are responsible for maintaining control of their motor vehicles, even in severe weather.

If a car accident occurs in South Dakota, several factors must be taken into account, in addition to the severe weather. An experienced attorney will review the details of each case and look at all of the evidence, including:

Was the driver distracted at the time of the accident? Was the driver making a phone call or texting? Were there others in the car diverting the driver's attention?
Was the car malfunctioning? Was there a problem with the brakes?
Was alcohol or drugs involved? Was the driver operating the vehicle under the influence at the time of the crash?
What was the driver's speed? Was the car going too fast, particularly in light of the hazardous road conditions?

If you have been in a motor vehicle accident in South Dakota, contact a South Dakota car accident attorney at Zimmer, Duncan & Cole. We have been representing clients and winning cases throughout South Dakota since 1948. Call us toll free at (888) 733-2992 to speak with a South Dakota car accident lawyer, and order a copy of our free book, The Ultimate Guide to Car and Truck Accident Cases in South Dakota: 7 Deadly Sins That Can Wreck Your Injury Claim. Call us today. We are here to speak with you.

Even Kitty-Cats End Up In Court

Mon, 10 Oct 2011 08:00:00 EST

A woman loaded up her car for a trip from Texas to Montana. Along the way, a police officer stopped her and discovered she was traveling with fifteen cats. Citing health and safety concerns, he impounded them
The woman's quest to recover them is told in, State of South Dakota v. Fifteen Impounded Cats (2010 S.D. 50).

* * *

Last night, my daughter tearfully reminded me how much she misses her beloved cat, Abigail. It has now been five years since her passing. Abigail slept in my daughter's bed (and also in flower pots), snuggled in her lap, greeted us at the door every evening, played fetch, and never, ever complained when being carried about the house like a stuffed animal. I thought of Abigail as a dog dressed in fluffy calico. Since I'm a dog-lover, that's the kind of cat I could live with. However, only one at a time would be plenty. Not so for the woman in this week's case.

Patricia Edwards was traveling through South Dakota in a small car. She stopped at a convenience store in Pierre, en route from Huron to Billings, Montana. While there, someone called in a complaint, reporting that her car contained a large number of cats. As the responding officer arrived, Patricia nearly backed into his patrol car. The officer immediately noticed her view out the back window was obstructed by numerous cats on the back ledge and climbing on the seat backs. Patricia explained that she was living out of her car and was short on cash. Her car was crammed full of boxes, coolers, blankets, 2-liter bottles of water, books, cooking utensils, a large bag of cat food, and a "full" litter box. The rest of the limited space was filled by cats and a strong odor. All fifteen were running free, without any kennels or carriers. Patricia explained that they were all spayed and neutered, but that the cats had destroyed those treatment records.

The officer was concerned about the health of the cats, and about Patricia's ability to safely drive a car with so many co-pilots. He impounded all fifteen cats and placed them in a local kennel, with the help of a veterinarian and the humane society. Six days later, the court held a hearing to decide whether the officer was justified in seizing the animals. Patricia was present, but without an attorney. The judge urged her to hire counsel and work on a plan to get her cats back.

Five days later, a second hearing was held. Patricia had no plan, and no money. The judge terminated Patricia's ownership rights and gave the cats to the humane society for adoption. Patricia appealed to our state Supreme Court.

* * *

Law enforcement officers are required to impound animals that are subjected to mistreatment, torture, cruelty, neglect or abandonment. Normally, a warrant is required before seizing such animals. This insures that a judge has taken the time to review the facts prior to the extreme step of forcibly taking away someone's property (such as a furry friend). There is an exception to this warrant requirement. An officer can proceed immediately in situations where any delay would cause the animal "extreme suffering" or if there are "other exigent circumstances". In those types of cases, the officer is required to present the facts to a judge as soon after the impoundment as possible. If the judge disagrees, the animals are returned to their owner.

Here, everybody agreed that the cats were not diseased or suffering. Instead, the officer claimed that this was a case of "other exigent circumstances". Exigent circumstances exist when "a situation demands immediate attention with no time to obtain a warrant". The Court determined that the officer was justified in seizing the cats. It was persuaded most by what it called, "the open and obvious safety hazard presented by Edwards's traveling coterie of cats". As proof of the danger, it noted that she almost backed into the officer himself.

The Court also agreed that the trial court was justified in giving the cats to the humane society when Patricia presented no plan for paying for the cats or safely transporting them. This was 3-2 split decision of our Court. I presume those votes came down along the lines of dog lovers vs. cat lovers.

A First Offense DUI Conviction in South Dakota Carries Hefty Penalties

Fri, 30 Sep 2011 08:00:00 EST

A charge of driving under the influence (DUI) of alcohol in South Dakota for a first offense is considered a misdemeanor for drivers both under the age of 21 and over the age of 21. Depending on your case, a misdemeanor charge may involve bail, arraignments, judge or jury trials, and sentencing, processes that take time and money. Additionally, if convicted of a misdemeanor charge, it becomes a part of your permanent record.

If you are under the age of 21 and have been charged with a first offense DUI, this is considered a Class 2 misdemeanor and you should expect to face the following penalties if convicted in South Dakota:

Fine
Loss of the driver's license for 30 days

If you are over the age of 21 and have been charged with a first offense DUI, this is considered a Class 1 misdemeanor and you should expect to face the following penalties if convicted in South Dakota:

Fine of up to $1,000
Imprisonment up to one year
Loss of the driver's license ranging from 30 days to one year

These penalties will interfere with your life. If you have been charged with driving under the influence in South Dakota, it is important that you speak with a South Dakota DUI lawyer today. The attorneys at Zimmer, Duncan & Cole will start working on your case right away and will fight for your rights. Contact us at (888) 733-2992; we have been representing clients charged with DUI offenses throughout South Dakota for several years. With offices in Parker and Sioux Falls, we are here to work for you.

How a DUI Conviction Can Land You in Jail in South Dakota

Thu, 29 Sep 2011 08:00:00 EST

Being charged with driving under the influence (DUI) of alcohol in South Dakota sets in motion many challenges in trying to keep that charge off of your permanent records. However, as difficult as it is to fight a DUI charge, there are a few things more terrifying than facing a DUI conviction. For drivers over the age of 21, the penalties involved with driving while intoxicated (DWI) range from fines and loss of the driver's license to, unfortunately, jail time.

Once convicted of a DUI in South Dakota, imprisonment is a possibility starting from the first offense. The amount of jail time that you can expect to face for a DUI conviction is as follows:

First Offense: Imprisonment up to one year.
Second Offense: Imprisonment up to one year. If convicted of driving during the period of time in which the driver's license was revoked, there is an additional sentence to county jail for not less than three days. This sentence will not be suspended.
Third Offense: Imprisonment up to two years. If convicted of driving during the period of time in which the driver's license was revoked, there is an additional sentence to county jail for not less than ten days. This sentence will not be suspended.

Imprisonment means loss of freedom, loss of precious time with your family and, quite often, loss of your job. Depending on the number of DUI offenses, a conviction can be considered a misdemeanor or a felony. This information becomes a part of your permanent record for all current and potential future employers to see.

Can you afford to lose everything that you have worked so hard for in your life?

If you or a loved one has been charged with driving under the influence, don't take any chances. Contact an experienced South Dakota DUI attorney at Zimmer, Duncan & Cole, we have been assisting clients throughout South Dakota and winning cases since 1948. Call us toll free at (888) 733-2992 to speak with a South Dakota DUI lawyer about your case. We have offices in Sioux Falls and Parker and we are ready to assist you.

What You Need to Know to Create a Valid Will in South Dakota

Wed, 28 Sep 2011 08:00:00 EST

When you create a properly executed will , you are able to direct how your personal property will be distributed upon your death. Without a will, you are considered to have died intestate and state law determines how your property will be distributed. While these are critical decisions that must be made, not everyone can create a will in South Dakota. The law requires the following in order for a will in South Dakota to be considered legal:

The testator (creator of the will) must be at least eighteen years of age
The testator must be of sound mind
The will must be in writing
The will must be signed by the testator in the presence of two witnesses
The will must be signed by the two witnesses who were present to the execution of the will and who also witnessed each other sign the will

We believe that drafting a will includes many difficult decisions involving professional judgment. A South Dakota will contest attorney can assist in developing a will that is clear and concise to avoid being contested after your death. An experienced lawyer can also reduce tax consequences and avoid problems once probate is started.

If you need assistance in developing your will or in contesting a will, contact the experienced South Dakota will contest lawyers at Zimmer, Duncan & Cole toll free at (888) 733-2992 or complete the contact form on this page for a free consultation. You should also order a free copy of A Step-by-Step Guide to Will Contest Cases- What You Should Know Before You Meet with a Lawyer available on our website.

How to Search For a Will in South Dakota

Tue, 27 Sep 2011 08:00:00 EST

South Dakota Truckers Lose CDL License if Driving Under the Influence

Mon, 26 Sep 2011 08:00:00 EST

In any major truck accident, federal regulations require the truck driver to be tested for drugs and alcohol. A blood alcohol content (BAC) of .04 or higher is above the legal limit for truck drivers in South Dakota. If caught driving under the influence (DUI) of drugs or alcohol, the truck driver is at serious risk of losing the commercial driver's license (CDL) and, thereby, losing his or her livelihood.

In South Dakota, a trucker convicted of driving under the influence will face the following:

Points are added to the trucker's driving record and the truck driver is restricted from driving a commercial vehicle for one year. If caught driving under the influence, the trucker is also given an "out-of-service" order by the arresting police officer that is in effect for 24 hours.
If the truck driver is transporting hazardous materials, the trucker will be barred from driving a commercial vehicle for three years.
A second conviction results in the truck driver being unable to drive a commercial vehicle forever.

In addition to the loss of the driver's license, penalties include fines and imprisonment.

These are serious consequences for serious offenses. Sadly, most collisions involving a trucker driving while intoxicated (DWI) or under the influence of drugs results in the death of others on the road.

If you or someone you love has been involved in a motor vehicle accident with a trucker driving under the influence of drugs or alcohol, contact the experienced South Dakota personal injury attorneys of Zimmer, Duncan & Cole toll free at (888) 733-2992 and also order our free book 7 Deadly Sins That Can Wreck Your Injury Claim. Zimmer, Duncan & Cole serves all of South Dakota. Contact us today.

Charged with a Second Offense DUI in South Dakota? We Can Help.

Mon, 26 Sep 2011 08:00:00 EST

How to Contest an Oral Lease Made Prior to Death in South Dakota

Fri, 09 Sep 2011 08:00:00 EST

Oral leases have existed in South Dakota for many years and in different forms, including oral farm lease agreements and oral leases between landlords and tenants. Oral leases are valid for only one year in South Dakota, but they are an effective means of transacting business when the parties know and trust one another. However, questions arise when a lessor (landlord) has an oral lease agreement in which land or property was leased cheaply to a family member or other interested party prior to the lessor passing away. This may result in beneficiaries of the lessor's/decedent's estate contesting the will based on this oral lease, as they may feel like they have been cheated for the lessee's personal financial gain.

In South Dakota, a will contest may arise based on undue influence if the decedent was of unsound mind or if a transaction was based on lies or fraud. Transactions made prior to the decedent's passing are questioned if the will does not appear to reflect the decedent's wishes or if a transaction unfairly benefits one party over another.

The following are reasons why an oral lease that is made prior to the decedent's passing is often the subject of a will contest:

·        There are no lease documents specifying definite terms.

·        The lessee may lie and change the terms of the oral lease once the decedent passes.

·        An oral lease made too cheaply, and thus not in the best interest of the estate, may not benefit all of the beneficiaries equally.

·        Beneficiaries under the estate may claim that an oral lease does not exist, since it was not in writing.

·        The oral lease was made under undue influence, and beneficiaries may try to prove that the elderly testator did not have the mental capacity to understand what he or she was agreeing to.

Contesting a will , or even an oral lease transaction made prior to the testator's death, can be a complex matter. If you believe that an oral lease transaction made prior to the death of the testator was not made in the best interest of the estate, we can help. Contact the experienced South Dakota will contest attorneys of Zimmer, Duncan & Cole toll free at (888) 733-2992, or complete the contact form on this page for a free consultation. Our will contest lawyers have been serving clients throughout South Dakota for several decades in complicated will probate matters, so we can assist you.

Were you in a motorcycle accident at Sturgis? You need a lawyer.

Tue, 06 Sep 2011 08:00:00 EST

The 71^st Annual Sturgis Motorcycle Rally took place from August 8-14, 2011 in South Dakota. According to reports from the South Dakota Highway Patrol, there were 80 personal injuries due to motorcycle accidents at the rally this year alone. If you were one of the motorcyclists involved in a crash at the Sturgis Rally, you are probably wondering whether or not you need a lawyer. Truthfully, it depends on the severity of the accident and the ensuing personal injuries. In a large number of cases, an attorney should be involved.

Being involved in a motorcycle crash is overwhelming emotionally, financially, and physically. The injuries, loss of personal property, and, oftentimes, loss of income due to the inability to work can take a toll on the victim. If you were involved in a motorcycle accident at the Sturgis Rally, you should consider contacting a South Dakota motorcycle lawyer right away to speak with an experienced professional about your situation.

While you are resting and recovering from the crash, an attorney will:

1)      Deal with insurance companies: The process of dealing with insurance companies is confusing and stressful. There is a significant amount of paperwork involved with filing a claim, and insurance companies generally pay only a fraction of the cost. An attorney will take care of the paperwork and work directly with the insurance companies to help you recover fully.

2)      Gather the facts: Gathering and analyzing the facts of a motorcycle accident can be complicated. How was the visibility? What were the road conditions? How fast were the parties driving? What were the injuries? Was alcohol a factor? An attorney will obtain all of the necessary documentation, including the police report and medical records.

3)      Determine liability: An attorney will review all of the information and build a case for you. This includes determining who is at fault and, at times, recreating the scene.

If you were involved in a motorcycle crash at the recent Sturgis Rally, contact the lawyers at Zimmer, Duncan & Cole immediately so we can start working on your claim. Contact us toll free at (888) 733-2992. We have been representing victims of motorcycle accidents and winning cases throughout South Dakota since 1948.

The Only Thing Worse Than Taxes

Mon, 29 Aug 2011 08:00:00 EST

After a visit from the assessor's office, one farmer's real estate taxes jumped 62%. He claimed this was unfair, since other farms in the county were treated differently. Our Supreme Court sorted out the issues in Donald and Gene Stehly v. Davison County, (2011 S.D. 49).

* * *

Before we get to that case, I want to return to the advice I gave in last week's column: call your insurance agent and ask for more underinsured motorist coverage, and while you're at it, look into getting an umbrella policy. It could be the wisest investment you'll ever make.
I've spent the last few months working with one of our clients who was injured in a motor vehicle accident (as a passenger). It was a terrible tragedy. His damages are approaching a million dollars, and the other driver was underinsured.
Things would have been a lot worse if our client only had the "standard" underinsurance coverage ($100,000).
Last week, I followed my own advice and called my agent, just to confirm my coverage. But since it's so cheap, I asked for even more. I hope you'll check on yours today.
Now, on to this week's case...

* * *

Nobody likes to pay taxes, but there's something even worse: finding out your neighbors pay less than you do. That's what happened to Donald and Gene Stehly. They own farmland northwest of Mitchell, with improvements such as a pole barn and grain bins.
In 2007, the Davison County Assessor began changing the formula for taxing those types of structures. The County had discovered that their old system was out of date: some people were paying taxes on grain bins that no longer existed, and others were paying zero taxes on newly built structures. The county commission authorized a three year plan to identify and re-value all the agricultural structures in Davison County. The term for this is "reassessing".
If I know anything about Davison County, it's that there is no shortage of agricultural structures dotting the landscape. This was going to be a very big job.
Davison County is divided into twelve townships, so the Assessor planned to tackle four townships each year for three years. Donald and Gene Stehly's township was in the first group of four.
The Assessor's Office soon discovered that its old valuation rates were outdated. For example, grain bins were being taxed at only half to two-thirds of their actual value. The County began correcting these valuations.
However, in the first year, the County didn't make these corrections for all twelve townships, but only for the first four townships.
Under these new valuations, the taxes on the Don Stehly's structures jumped from $1320 to $2139. His nearby neighbors in other townships still paid at the old rate on identical structures.
The Stehlys went to court to challenge this procedure. They argued that this new valuation method should be applied to the entire county at the same time, instead of piecemeal.
In legal terms, they were claiming that the county's decision to reassess only four townships per year created an unconstitutional system of tax discrimination within Davison County.

* * *

The Stehlys' argument comes straight from our state constitution. Article XI guarantees that taxes in our state must be "uniform" and "equitable". Similar properties in the same vicinity must be treated the same for tax purposes.
In practice, this means that comparable properties within the same "taxing district" must be valued and taxed in the same way.
Here, the entire case seemed to boil down to how the Supreme Court would define a "taxing district".
If the whole county is the district, then the Stehlys win (because everyone in the county was not taxed uniformly). Or, if each township is its own taxing district, the Stehlys lose (because everyone in their township was treated the same).
However, the Court ignored this "either/or" choice and followed a different path.
The Court concluded that the county is the "taxing district", so that all properties in the entire county must be treated uniformly.
However, the Court carved out an exception and said that a "temporary lack of uniformity" is acceptable, as long as the Assessor's Office tries to complete its county-wide reassessment as soon as possible.
So although the Stehlys were correct that their taxes are unequal, they are still required to pay at the new rates.

* * *

Daniel K. Brendtro is a trial attorney and a partner in the Zimmer, Duncan & Cole firm. For legalese-free answers to your legal questions (large or small) contact him through the online form at www.zdclaw.com.

What to Know When Hiring a South Dakota Will Contest Lawyer

Thu, 25 Aug 2011 08:00:00 EST

When looking for a South Dakota will contest attorney, you want to do your homework. Contesting a will requires the appropriate knowledge and experience.

When deciding on a will contest attorney, here are some of the things that you will want to know and ask:

Does the attorney handle cases like yours?
What cases has the attorney handled, and have these cases gone to the state and supreme courts? Has the attorney tried jury cases?
Get testimonials, verdicts, settlements, and any examples of the attorney's work.
A referral from another attorney is often a strong testament.
Ask for an explanation of the steps in the process as well as the fees involved.
Develop a list of your own questions.

Never move ahead with an attorney until all of your questions have been answered satisfactorily. These cases are both complicated and emotional, and they demand that you feel complete confidence and comfort with the lawyer that you choose.

If you have any questions about will contests, breaches of fiduciary duty, self-dealing powers of attorney, or rescission, or if you wish to speak with a South Dakota will contest attorney about a claim today, then contact Zimmer, Duncan & Cole at (888) 733-2992 or fill out the form on this page.

Protect Yourself From Under-Insured Drivers

Mon, 22 Aug 2011 08:00:00 EST

A teenage driver is severely injured when her car is struck by another vehicle. She and her parents now face hundreds of thousands of dollars in medical bills. The other driver has almost no insurance coverage. Fortunately, her parents have "underinsured motorist" coverage for exactly this type of situation. And, since her parents are divorced, she actually has two separate policies, for $100,000 each. Our state Supreme Court decides whether she can use both policies in DeSmet Insurance Company v. Tabitha Pourier (2011 S.D. 47).

* * *

But before we talk about that case, I want to take quick detour and answer a reader question, thanks to G.M. of Lennox.
She recently purchased $300 worth of merchandise from a kiosk while down in Arizona. She later tried to return the items... but was told she couldn't because of the "fine print" on the receipt. (Of course, since the receipt was handed to her after the sale, it's probably too late for that disclaimer to count against her.) In response to her phone calls, this Arizona business gave her the runaround. She then used our website to ask what she should do and whether she needs a lawyer. And she also realizes that a lawyer may not even be cost effective for a small transaction like this.

My answer is that G.M. already has a lawyer to help her, and the price is too good to be true. The cheapest and most effective way of handling consumer issues like these is to contact the state Attorney General's consumer protection division. Each state has one. It's free. And it's their job to help you.

Because her transaction occurred in Arizona, I directed her to that state's consumer protection website. Some states have better consumer protection than others, so G.M. may need to take some additional steps to get the matter resolved. But that's at least a good place to start.

When you request help from them, be as detailed as you can. Give them copies of all the papers and documents about the transaction. Also, a timeline is often helpful.

Now, on to this week's case...

* * *

A teenager named Tabitah Pourier was seriously injured when her Plymouth Neon was struck by another vehicle. The car accident occurred in Pennington County. Tabitha's medical bills exceeded a quarter of a million dollars. And although the other driver was at fault, he carried only the state minimum level of coverage on his vehicle ($25,000).

Tabitha lived with her father, who listed her as an insured driver on his auto policy with DeSmet Insurance. However, the Neon itself was insured by her mother's insurance company (GEICO). The GEICO policy included $100,000 in "uninsured/underinsured motorist coverage" (also called UM/UIM). With this coverage, your own insurance company guarantees that you'll have at least that much insurance available for your injuries, even if the other driver has no insurance or not enough. Since the driver already had $25,000 in coverage, GEICO chipped in the remaining $75,000, for a total of $100,000 toward her damages.

Meanwhile, Tabitha's father had also paid for $100,000 in underinsured coverage for his daughter on the DeSmet policy, which they also hoped would help pay for the injuries. The question in this case is whether Tabitha could use both UIM policies. In a split decision, 3-2, the Court said that Tabitha only gets the benefit of her mom's policy because of how the DeSmet policy was worded.

This is unfortunate. However, if you're doing the math, you see that there still wouldn't have been enough insurance to cover all the medical bills even if the Court had allowed both UIM policies to be used. (And that's not even counting her damages for disability, pain, disfigurement, lost wages from her part-time job, etc.)

Her parents merely had the basic level of underinsured motorist coverage, $100,000. For any serious accident, that's rarely enough. The lesson here is that Tabitha's parents could have asked for more.

If you follow only one piece of my advice this year, please make it this one: call your car insurance agent today and ask for more uninsured and underinsured motorist coverage. You'll be surprised by how little it costs to move up to $250,000. For just a bit more, you can bump it up to a million dollars and add an "umbrella" policy to increase your family's protection.

Extra coverage is the cheapest peace of mind you'll buy all year.

Mistakes to Avoid When Driving Around Commercial Trucks

Sun, 21 Aug 2011 08:00:00 EST

Avoiding these four things when sharing the road with large trucks can save your life:

1. Cutting off a truck in traffic or on the highway to reach an exit or turn: Cutting in front of a truck is always dangerous. The truck cannot stop or slow down quickly enough to avoid hitting you. Do not speed up to pass a truck in order to reach an exit ramp first, as you will give the truck driver far too little room or time to react.
2. Lingering alongside a truck when passing: Always pass a large truck on the left side, and after you pass the truck, move ahead of it. Otherwise, you make it very difficult for the truck driver to take the necessary action to avoid any unseen circumstances.
3. Following too closely or tailgating: When you follow so closely behind a truck that you cannot see the truck driver's side view mirrors, the driver cannot see you as you are in a blind spot. Tailgating behind a truck, or any vehicle, is also dangerous, because you limit the other vehicle's ability to react quickly.
4. Underestimating the size and speed of an approaching tractor-trailer: A large tractor-trailer often appears to be traveling at a slower speed because of its size. At intersections, cars often make the mistake of miscalculating a truck's speed and pulling out in front, which can cause a collision.

It is vital to be aware of your surroundings when you are diving around large commercial vehicles. If you have been the victim of an accident involving a large commercial truck, your best bet for ensuring that you get the compensation you need for your injuries is experienced and knowledgeable representation.

For more information about your legal rights in these cases, or to schedule a free consultation if you have been injured, you should call us right away. Our experienced attorneys can give you the information you need to take immediate action.

Call Zimmer, Duncan & Cole today at (888) 733-2992, or fill out the form on this page. If you are too injured to travel, we may even be able to come to you.

South Dakota Teenagers and Distracted Driving

Thu, 18 Aug 2011 08:00:00 EST

Teenagers are notorious for being distracted drivers. Many studies of distracted driving even show young drivers as some of the worst offenders. Distracted driving is a bad idea for anyone, but an adolescent's lack of experience and maturity may greatly increase the risk of an accident.

Here are a few things to do as the parent of a teenage driver:

First and foremost, be an example for safe driving practices by not using a cell phone while driving.
Be very clear on the rules and consequences of driving with cell phones. Always follow through on the consequences.
Be consistent and persistent in your message about driving and cell phone use.
Put smart limits on phone usage so that you are in control.
Monitor phone usage.

It is paramount that we continually remind our kids of the importance of not using a handheld device when driving. Parents and guardians must be the ones to teach teens about distracted driving.

If you have any questions about driving safety or wish to speak with an attorney about a claim, contact Zimmer, Duncan & Cole at (888) 733-2992. You also can fill out the form on this page. A South Dakota personal injury attorney can help.

Bicyclists Suing Cities for Not Providing Safe Paths and Roadways

Tue, 16 Aug 2011 08:00:00 EST

These days, more people are riding bikes for both pleasure and transportation throughout the country. Thus, city governments are facing greater responsibility for providing safe travel for cyclists. The increase in riders across the nation necessitates that governments provide their citizens with roadways that have been designed for safety and that will be used and cared for properly.

People across the nation are taking city governments to task in courts for failing to provide safety for bicyclists. Here are some examples of court cases involving bicycle accidents:

Hannah Evans was "doored" by a driver leaving his parked car. She sued the city of Toronto for failing to ensure that the roadway was safely designed for all users, including cyclists. A Toronto Small Claims court recognized cycling's increase in popularity in Toronto, which is promoted by the city for its health and environmental benefits. The judge found that the city did not provide adequate travel safety for bicyclists. He then adopted case law, which requires municipalities to respond to changing uses of public roadways. He ruled that as traffic and road use changes, so should the road design and infrastructure.

In November of 2000, Donald Hallsten was awarded $4.35 million from the city of Chicago after getting hurt and paralyzed while biking across a bridge that was under construction in 1996. The city had allowed a construction firm to erect a canopy, creating a blind spot. Hallsten approached the corner on his bike and was hit by a cab. The city had posted "bicycle route" signs along the road, suggesting that bicyclists were intended users of the road. The court concluded that the road was too narrow.

If bikes are sharing roads with motor vehicles, it is paramount that adequate measures are taken to ensure bicycle safety. It is also important for cyclists to ensure that they have the proper equipment to ride safely.

If you have been the victim of a bicycle accident in South Dakota, call a Sioux Falls personal injury lawyer about a claim today. Contact Zimmer, Duncan & Cole at (888) 733-2992, or fill out the form on this page.

Is there a Constitutional Right to Loiter?

Tue, 16 Aug 2011 08:00:00 EST

A registered sex offender was charged with loitering near a city park. In his defense, he suggested this criminal charge interfered with his constitutionally protected "freedom to loiter".
Our state Supreme Court addressed his case in the State of South Dakota v. Kenneth Dale Stark (2011 S.D. 46).

* * *

This story begins with a cliché: a suspicious white van parked near an elementary school. A concerned mother believed that the driver was either watching or following children headed to swimming lessons at a nearby pool. She called the police and gave them the license plate number.
The Sioux Falls Police Department determined that the white van belonged to Kenneth Stark, a registered sex offender. (According to the state offender registry, Stark has a 1992 Nebraska conviction for sexual assault involving a 7-year-old girl.)
In South Dakota, sex offenders are prohibited from loitering within 500 feet of schools, parks, or playgrounds. So, the following afternoon the police department sent two officers to tail Stark when he left work.
According to the officers, he stopped at a gas station and then headed to Whittier Park. He circled the park for around twenty minutes, and then the officers lost sight of him.
A short time later the officers were told that Stark's van had been spotted near another park. As they arrived, they saw Stark's van leaving. It appeared he had been parked along the curb at the corner of the park.
They stopped his van. They smelled alcohol on Stark's breath and found an open vodka bottle under the driver's seat. Stark was charged with driving under the influence, an open container violation, and loitering within 500 feet of a "community safety zone" (i.e., a school, park, or playground).
The word "loitering", in this context, means "remaining for a period of time and under circumstances that a reasonable person would determine is for the primary purpose of observing or contacting minors."

* * *

At trial, Stark denied he had loitered near the park. Instead, he said he went home, ate dinner, had a few drinks, and headed to the supermarket. Near the park, he pulled over to let an oncoming car pass through a narrow part of the street, and to allow a group of children to cross.
The jury didn't buy it. They convicted him of loitering and having an open container, and acquitted him of the DUI.
Stark appealed his conviction. He argued that the anti-loitering statute was unconstitutional for two reasons: it was too "vague", and it violated his constitutional right to loiter.

* * *

When someone alleges that a law is "unconstitutional", it's rare that the answer is spelled out in black and white in the text of the Constitution.
Instead, that document contains a list of rights and principles. Courts must interpret how those general statements apply to specific cases.
"Vagueness" is a perfect example. There isn't a specific amendment against vague laws. But that principle is well-accepted. It's a product of a phrase in the Constitution that guarantees each of us "Due Process".
A criminal law must be detailed enough that citizens understand exactly what it means (and how to avoid breaking it). Also, if the law is too "vague", there is no guarantee that each police officer will enforce it the same way each and every time.
Here, the Court determined that the 500-foot rule for sex offenders was not vague.
They turned next to the "freedom to loiter" argument. Is loitering really a constitutionally protected right? The idea isn't as far-fetched as it sounds.
Even though the word "loitering" doesn't appear anywhere in the Constitution, the U.S. Supreme Court first mentioned the idea in an opinion twelve years ago.
The case involved a Chicago ordinance that made it a crime to loiter if you looked like you were a member of a street gang.
In that opinion, three of the nine justices noted that the right to linger in a public place would be a logical extension of the freedoms we have long recognized: our ability to travel about the country and to move from place to place, conducting our daily business.
However, because the U.S. Supreme Court didn't go as far as officially declaring "loitering" as a fundamental right, our state Supreme Court declined to accept Stark's argument.
His conviction will stand.

28 Degrees of Termination

Tue, 09 Aug 2011 08:00:00 EST

Southeast Technical Institute got a black eye in 2007 when its administrators discovered that the school had mistakenly awarded diplomas to 28 students who hadn't earned them.
At the center of the controversy was the school's employee, Matt Onnen. The two sides ended up in court in a case called Matt Onnen v. Sioux Falls Independent School District (2011 S.D. 45).

* * *

The concept of "two weeks' notice" is a mostly a courtesy, not a requirement.
The vast majority of South Dakota employees are considered "at-will". That means they can be fired at any time, for almost any reason, or for no reason whatsoever. If you want any sort of job security, you'll need an employment contract.
Matt Onnen had yearly, written contracts for his position with the school district.
After two years on the staff of Southeast Tech, Matt Onnen was promoted to the position of registrar.
As registrar, he was in charge of maintaining the school's permanent records, including student grades for each class. He was also responsible for checking to see that students had met the graduation requirements before receiving a diploma.
Two years into Matt's new position, his supervisor discovered that a student had received a diploma without meeting all of the requirements.
He investigated and found 13 students who had improperly received degrees. Even worse, he discovered that Matt knew about the issue two months earlier, but failed to tell his boss.
Instead, Matt called some of the affected students to tell them. But he didn't keep a list of who he talked to.
Matt was suspended for three days with pay for a further investigation. Southeast Tech then discovered fifteen other students who had improperly received degrees.
In addition, they discovered another forty students who were entitled to a degree, but had not received one.
Matt was fired immediately. The administrators said that Onnen had refused to take responsibility for his major mistakes and failed to help fix the situation after it was discovered.
At the time, Matt was in the middle of a one-year employment contract with the school. The agreement contained a section that allowed Southeast Tech to terminate Matt "for cause".
Southeast Tech claimed these actions were "cause", and then forwarded their decision on to the Sioux Falls School Board for approval.
Although they are run like colleges, the vo-tech schools in South Dakota are part of local school districts, rather than the university system. Decisions to hire and fire are ultimately the responsibility of the elected school board.
Matt appealed his termination and asked the School District to reconsider.

* * *

Any school board decision can be appealed into circuit court. (The circuit court is the one held at your local county courthouse.)
The court then holds a trial, with witnesses, but no jury, and evaluates the school board's decision.
In general, courts do not like to second-guess school boards. If they made a habit of it, courts would see a flood of disgruntled parents, students, teachers, and taxpayers. In addition, this would put judges in the position of making education decisions, rather than the community's elected leaders.
However, we know that school boards do make mistakes from time to time, so there has to be some method to review their decision.
In order to strike the right balance, courts use a two-part test. First, a judge investigates whether the school board followed the correct procedure to arrive at its decision.
Second, the decision itself is evaluated, but it won't be overturned unless it was an "abuse of discretion". This means that as long as the court can see a sensible reason why a school board would have acted this way, the decision will stand.
Here, the trial court determined that the school board followed all the right procedures, and that Matt's conduct fell short of what he promised in his written contract.
After the trial court made its decision, Matt's attorney asked for a new trial based on a minor bit of drama that occurred during the trial.
Apparently, shortly before he testified, one of the school district's major witnesses contacted the judge on Facebook, and wished him happy birthday.
Although there could be an appearance of favoritism resulting from this, the trial court and then the Supreme Court decided this wasn't enough to justify a new trial.
The school board's decision will stand.

Where There's a Will, There's a Way for a Family to Fight

Mon, 01 Aug 2011 08:00:00 EST

A death can often bring a family closer together. Yet nothing has more power to pull that family back apart than a Last Will and Testament.
Our firm handles a lot of disputes involving estates. Sometimes the issue is a Will that was changed in the last days or weeks of someone's life. Another common situation is property that was unexpectedly gifted or sold before death (often for a very low price).
Other cases involve mismanagement of the probate process: when the executor engages in self-dealing or improperly handles the estate's assets.
This week's case involves this last scenario. The saga begins in 2002 and unfolded into three separate trips to our Supreme Court.
The most recent appeal is Jared and Luke Muhlbauer v. the Heirs and Estate of Glenn E Olson (2011 S.D. 42).

* * *

Glenn Olson died nine years ago this week. He lived in the same house since birth: a modest farmhouse built in 1900, and situated on 132 acres in Clay County. He spent his entire life farming that land.
More than anything, Mr. Olson wanted to keep the land in the family. He had no children, so he drafted a Will which gave everything to his seven nieces and nephews.
After his death in 2002, another relative, Wayne, served as the personal representative (executor) of the estate. On behalf of the estate, Wayne took care of the farm, the house, and the barns.
Wayne soon realized that the buildings were in such poor condition that they were a drain on the estate's resources.
He then made the decision that it would be better to sell part of the farm and divide the proceeds among the seven relatives, rather than continue owning and operating the farm.
Wayne scheduled a public auction and sold the six acres where the buildings were located. The sale brought an exceptional price, exceeding market value. The highest bidders were Jared and Luke Muhlbauer, who became the new owners.
Wayne then reported the sale to the seven heirs. However, the news was a surprise to some, because he apparently didn't notify them prior to the auction.
When they found out, five of the heirs approved, but two of the nephews were quite upset. They filed a lawsuit to unwind the sale.

* * *

When you die, the ownership of your land and personal property is governed by your Will. (If you die without a Will, the property is given to your closest living relatives, based on a complicated set of rules. If no living relatives can be found, all of it goes to the State.)
Before the property is formally transferred to your chosen heirs, it passes first through an "estate". The estate includes almost all of your assets and almost all of your debts.
The person in charge of managing your estate is called the Personal Representative (the old-fashioned term was "executor").
The Personal Representative must first pay any debts, and then divides up what is left based on the instructions you gave in your Will. This is called the "probate" process.
If your Will gave specific property to specific people, the Personal Representative should always attempt to follow your instructions.
In this case, the state Supreme Court was clearly troubled by the fact that the family homestead was sold without notice to the other heirs.
In addition, the Court was troubled that the sale seemed to violate the specific directions in the Will.
And the home site wasn't sold to pay any debts. Instead, the Personal Representative sold it because it was old and dilapidated...although it clearly had sentimental value which exceeded its high sales price.
Equally problematic, though, was the situation of the highest bidders. The Muhlbauers bought the land without any knowledge of these tricky issues. They had no idea that the Personal Representative didn't have approval to sell, or that he had failed to notify all of the heirs prior to the auction.
Fortunately for Muhlbauers, the law considers them to be "innocent third parties". Their dealings with the Personal Representative are protected. As a result, they will be permitted to keep the land.
In turn, the disgruntled nephews will be permitted to pursue a claim against the Personal Representative. His alleged mishandling of the estate may be a breach of his fiduciary duty. If so, he is liable for money damages to fix the harm.

South Dakota Looking at Driving & Cell Phone Laws

Mon, 01 Aug 2011 08:00:00 EST

Cell phones are a convenience that few choose to live without, making multi-tasking common in almost all we do, including driving. This poses a real threat to road safety for everyone.

Because of the high incidence of car accidents involving cell phones, either talking or texting, lawmakers are looking at laws that will curb cell phone use while driving. Cell phone manufacturers are also looking at ways to disable cell phones while a person is operating a motorized vehicle, and more applications are becoming available that offer hands-free cell phone use. The newness of the cell phone phenomenon has left public guardians scrambling to find solutions to the dangers of using cell phones while driving.

In South Dakota, legislation has been stuck in debate around how to protect the public from distracted drivers that may cause great harm to themselves and others on the road. Some lawmakers believe nothing should be done and others believe that there should be penalties, such as 30 days in jail and a $500 fine, which would stop a driver from using a hand-held device while driving. Cell phones and operating motor vehicles is new territory for everyone and will require time to actually put meaningful safety guards in place for the public.

In the meantime, drivers are at risk for serious injury or even death caused by distracted drivers. If you are a loved one has been seriously injured in a car crash with someone using a cell phone at the time of the accident, you may be awarded compensation for damages suffered.

Call an experienced South Dakota car attorney to get your questions answered today. Contact Zimmer, Duncan & Cole at (888) 733-2992 or fill out the form on this page to schedule a free consultation about your case.

Recovering Compensation for Sioux Falls Motorcycle Crash Injuries

Mon, 18 Jul 2011 08:00:00 EST

Motorcycle crashes happen all the time. Unfortunately, 96 percent of single-vehicle crashes, which may be caused by defective equipment or unsafe roads, end in injury to the rider. A whopping 98 percent of multi-vehicle wrecks, which are most often caused by negligent drivers, end the same way.

In 45 percent of these cases, the injury that the rider suffers is severe or even life-threatening in nature. These injuries range from brain trauma to broken bones in South Dakota motorcycle accidents , all of which require extensive initial and ongoing care.

If the accident that injured you or a loved one was caused by a negligent driver, as so many accidents are, you should not have to shoulder the entire burden of the injury. It is no fair to have to pay for the consequences of someone else's irresponsible behavior.

Fortunately, you may be eligible to recover damages for your related costs, including, but not limited to, medical bills, ongoing care or physical therapy, permanent losses, missed time at work, and even very real instances of pain and emotional suffering.

The best way to proceed in this type of case is to schedule an appointment with a Sioux Falls personal injury attorney that you trust. An experienced lawyer can walk you and your family through the entire process, giving you the guidance and support needed at every step along the way.

If you would like to schedule a free consultation with one of the experienced Sioux Falls personal injury lawyers of Zimmer, Duncan & Cole at a time that is convenient for you, call us today at (888) 733-2992, or fill out the form on this page and we will get back to you shortly.

Feeling Anger and Resentment after a Catastrophic SD Truck Accident

Thu, 14 Jul 2011 08:00:00 EST

When a negligent truck driver, who may have gotten behind the wheel under the influence of drugs or alcohol, causes a serious wreck involving you or a loved one on area roads, the fallout can be extremely difficult to handle. This applies to both the physical and emotional aspects.

The emotional impact from South Dakota truck accidents can include:

Hurt
Pain
Suffering
Anger
Resentment
Confusion

The victims of truck wrecks often ask: "Why did this happen to me?" This is completely understandable. For those suffering after a truck accident with a negligent driver, anger and resentment are completely normal. It is okay to feel this way.

It is important, however, to take action. It is not enough to just feel sorry for yourself. You can achieve healing and a sense of justice by being strong. If the criminal system does not act, you can file a personal injury claim against the negligent driver or trucking company.

Those who win a settlement or jury verdict in a personal injury case after a truck accident can recover damages for physical and emotional costs. This financial compensation may cover medical bills, ongoing care, permanent losses, and even very real instances of pain or emotional suffering.

To learn more about your legal rights in these cases, and the type of compensation that you and your loved ones may be able to earn, contact the South Dakota personal injury lawyers of Zimmer, Duncan & Cole today. You can schedule a free consultation about your case by calling toll free (888) 733-2992 or by filling out the form on this page.

The Insurance Adjuster Is Calling

Wed, 13 Jul 2011 08:00:00 EST

I've been injured in a car or truck accident and the Insurance Adjuster wants to talk to me. What should I do?

If you have been in a car or truck accident you are going to be hearing from an insurance adjuster sooner or later. The adjuster will call you and want to know if they can talk to you. The adjuster will also want to tape record your conversation. Should you do it?

If you have been seriously injured my advice is not to talk to the adjuster without having talked to an experienced car and truck accident lawyer first. There is just too much that can go wrong without an attorney present.

Why do I say that? Because over the years we've seen numerous things go wrong for the injured person in these insurance adjuster interviews. Most folks just don't understand the purpose of the insurance adjuster interview. You are at a disadvantage without having an experienced car and truck accident lawyer to help you out. Based on our experience, you are asking for trouble if you talk to an adjuster without a lawyer.

It's pretty simple: "Anything you say can and will be used against you in a court of law." That is true even if you are very severely injured, in the hospital, on pain medication, and "out of it." We've seen many instances where the insurance defense lawyer, (almost all lawyers representing defendants in car accident cases are hired by insurance companies), use these insurance adjuster interviews to attack the injured person.

It doesn't matter to them if you said something without all of the information about your medical condition, or if you were in so much pain you weren't thinking right, or if you were so medicated you didn't know what was happening. If you said, they will try to hold you to it at any deposition or trial involving the accident.

So, if you are contacted by an insurance adjuster after a serious car or truck accident, use your head. Don't talk to the adjuster without talking to an experienced car and truck accident lawyer first. And you family members use your heads too! Do not let a loved one talk to an insurance adjuster without talking to an experienced car and truck accident lawyer first.

Symptoms of South Dakota Whiplash Accidents

Tue, 12 Jul 2011 08:00:00 EST

If you are rear-ended in a car accident, you can end up with whiplash yet not even realize what has happened or understand the full impact of the injury. However, whiplash is a dangerous and potentially deadly injury.

Whiplash happens when there is a sudden jolt to the neck during which the neck is stretched beyond its normal range. It can result in muscle strain, soft tissue damage, and sometimes, over a period of time, nerve damage. The symptoms of whiplash include:

Headaches
Muscle soreness
Dizziness
Tingling in arms

It is important if you have been rear-ended and sustained injuries that you seek medical attention from your doctor, even if your injuries do not seem severe. The symptoms of whiplash may take awhile to develop, and you want to ensure that you are prepared for every possible situation.

It is also important that you follow up with a good personal injury attorney if you have been injured in an accident with a negligent driver. Whiplash can present more debilitating symptoms over time, and you want to make sure that you are covered if you should need expensive medical care down the road.

For more information about whiplash cases, call the South Dakota car accident attorneys of Zimmer, Duncan & Cole today at (888) 733-2992. You also can fill out the form on this page, and we will contact you within 24 hours.

We have convenient office locations in Sioux Falls and Parker, SD. If you have been catastrophically injured and are unable to travel, we may even be able to come to you. Contact us immediately for more information.

Just Close Your Eyes and Sign on the Dotted Line

Mon, 11 Jul 2011 08:00:00 EST

After an ice cream parlor shut its doors and stopped paying rent, the landlord and tenant soon discovered that neither of them had ever read the lease.
The trial court and our Supreme Court were left to sort out the confusion in the case, Arrowhead Ridge I, LLC, v. Cold Stone Creamery, Inc. (2011 S.D. 38).

* * *

When Cold Stone Creamery first arrived in Sioux Falls, my daughter and I made weekly trips to stand in line for their yummy creations. The chain makes ice cream fun with two, unique sales gimmicks.
First, your choice of ice cream and toppings are smeared and swirled together on a frozen slab of granite (the "cold stone") before being spaded into a fresh-baked waffle cone.
Second, the entire staff randomly breaks into boisterous song every few minutes.
The company prides itself in "contagious" happiness, and it has successfully expanded its chain into 1,400 stores around the world. As with any business, however, there were some bumps along the way.
In 2004, Cold Stone expanded into Sioux Falls with two stores. Both were situated in strip malls very close to the city's two Wal-Mart stores. After just a couple of years, the struggling east-side Cold Stone store closed its doors. (The west-side shop is still in business today.)
When Cold Stone stopped making lease payments, the landlord filed an eviction action. In legalese, these cases are known as "forcible entry and detainer actions".
During that lawsuit, the landlord and tenant soon discovered that the lease contradicted itself in a couple of very important areas.
First, and most importantly, the length of the lease was unclear. One paragraph at the beginning of the document said that Cold Stone would be responsible for ten full years of lease payments. Another paragraph near the very end, however, indicated that Cold Stone would only be responsible for 18 months of payments if the store closed at any time.
A second discrepancy involved the interest rate for late payments. One section of the lease set it at 18%, while another used the Wells Fargo prime rate plus 3%, which lately has hovered around 4%.
Both sides agreed about the source of these contradictions: nobody had ever bothered to read the entire 44-page lease.
Both sides had used brokers to negotiate and handle the lease transaction. Neither party gave much oversight to the brokers.
Only after the lawsuit was filed was the lease finally read. The trial court would need to sort things out.

* * *

When a signed contract contains errors and contradictions like this, a trial court can declare it to be "ambiguous". This same rule applies when words or phrases used in the lease can be interpreted in multiple ways.
In those situations, the trial court then investigates beyond the four corners of the written contract. Sources of evidence about the true meaning can include the parties' negotiations, trade customs, and testimony about what each side thought or how the parties acted after the contract was signed.
Unfortunately for Cold Stone, the only witness it called to testify about the company's original understanding was a woman from the Cold Stone's headquarters in Arizona...who was hired several years after the lease was signed.
As a result, the trial judge determined that there was no credible evidence about what Cold Stone believed the lease meant. And, in line with this, the trial judge sided with the landlord's view. The court required Cold Stone to pay all ten years of the broken lease, along with interest at the 18% rate.
There was a glimmer of hope, however. In almost all contracts (including leases) the law requires someone injured by a breach of contract to "mitigate damages".
In simplest terms, an injured party can't just sit by idly and let the damages pile up. Instead, he or she must use their best efforts to minimize the financial impact.
In a landlord-tenant situation, this means that a landlord must try to find a new tenant after the old tenant defaults.
Here, the landlord had advertised its empty space and tried to negotiate replacement leases with a bank, a pizza buffet, and a couple of sandwich shops. Even though none of those potential tenants ever signed a lease, the court determined the landlord had at least tried to mitigate its damages.
Cold Stone was required to pay the full amount of the remaining lease.

* * *

Daniel K. Brendtro is a trial attorney and a partner in the law firm of Zimmer, Duncan & Cole. Contact him through the online question form at www.zdclaw.com.

Statistics Show Helmets Save Lives in South Dakota Bicycle Accidents

Sat, 02 Jul 2011 08:00:00 EST

There is no federal law saying that bike riders, no matter what age, have to wear a helmet. If you read our earlier article about bicycle helmet laws in South Dakota, you know that there is also not a state or local law.

However, anyone who has seen the damage that can be done by a negligent driver who hits a bicyclist will tell you that wearing one is always a good idea. The statistics back this up:

Collisions with motor vehicles account for 75 percent of all bicycle fatalities.
Head injuries account for about 60 percent of motor vehicle collision deaths.
Bicycling accounts for nearly three times as many head injuries as baseball or football.
Wearing a helmet can reduce your risk of head injury by 85 percent.
About 75 percent of bicycle-related deaths among children could be prevented with a bicycle helmet.
Every $1 spent on a bike helmet saves all of society $30.

These statistics mainly show that South Dakota bicycle accidents can be extremely dangerous for all involved. By wearing a helmet, you can drastically lower, but not eliminate, this danger.

If you are a cyclist or ride a bike on a regular basis, we urge you to wear a helmet. If you have a child who is just starting to ride a bike alone, there is no better time to set the right precedent.

If you have any questions about bicycle safety, or wish to speak with a Sioux Falls personal injury lawyer about a claim today, contact Zimmer, Duncan & Cole at (888) 733-2992, or fill out the form on this page.

Financial Compensation for a Leg Injury from a SD Car Accident

Fri, 01 Jul 2011 08:00:00 EST

Those who sustain a leg injury soon find that they need their legs for nearly everything. Without the full use of your legs, you face difficulties when standing, walking, exercising, and even working. This can be very physically, emotionally, and financially draining.

If you sustained a leg injury in a South Dakota car accident and the wreck was caused by a negligent driver who may have been drunk or distracted at the time, you are likely eligible to recover damages from the individual's insurance company. This financial compensation could cover:

Medical bills
Missed time at work
Pain and suffering
Ongoing care
Permanent losses
Home renovations

However, the insurance company representing the negligent driver will not just hand over the full amount of compensation that you deserve. It will probably offer you the absolute minimum, and then try to trick or coerce you into taking it. Insurance adjusters may act like your best friend, but they are anything but.

If you want to earn the full amount of compensation that you deserve, it is important that you never sign anything from an insurance company without having your lawyer look at it first. Refer all inquiries to your attorney.

Most importantly of all, you need to hire an experienced South Dakota car accident attorney to handle your case. A lawyer who has handled similar cases can guide you through the entire process. A great lawyer is the real secret to earning the maximum amount of financial compensation.

For more information about your legal rights after sustaining a leg injury in a South Dakota car accident , call Zimmer, Duncan & Cole today at (877) 789-5238 to schedule a free consultation about your case. We have office locations in Sioux Falls and Parker, SD.

"I Was Only Trying to Help a Friend"

Mon, 20 Jun 2011 08:00:00 EST

Right on the heels of Dr. Jack Kevorkian's death, our Supreme Court wrestles with South Dakota's laws regarding assisted suicide. The case is called State v. Robert Goulding (2011 S.D. 25). A link to the full opinion is available at LessLegalesePlease.com.

* * *

Allen Kissner wanted to die. He had constant, incurable pain related to his failing health. He was addicted to heroin. He was in trouble with the law and, at age 56, was probably headed back to prison because of his legal troubles.

He had already attempted to take his life once before, but failed. After his release from the hospital, Allen returned to Redfield, where he lived with the Goulding family.

Allen then apparently approached Robert Goulding with the ultimate request. He wanted Robert to help him take his own life. They began planning.

On the weekend before Thanksgiving in 2008, Allen wrote a suicide note and left it on his dresser. Robert and Allen then drove from Redfield out the Black Hills. They arrived on the quiet, pine shores of Sheridan Lake. They headed to the picnic area. Nobody else was in sight.

After some initial preparations, and presumably after the friends said goodbye, Robert withdrew a gun from his pocket and held it to Allen's ear. When Allen was finally ready, Robert pulled the trigger. Allen died instantly.

A fisherman found his body the next day. Police found no weapon near the body, so they began investigating the case as a homicide.

One of their first stops was to the Goulding residence. Robert led investigators to the suicide note.

The investigators became suspicious when Robert refused a polygraph. When he realized he was a suspect, Robert cooperated and told them everything.

Robert was arrested and brought back to Pennington County for trial.

* * *

The law has always had an unusual relationship with the "crime" of suicide. The act itself was outlawed for centuries on religious grounds, namely that God must decide when a life should end.

These laws were mostly a moral statement, because they were obviously unenforceable against those who succeeded.

On a practical level, however, these laws provided the state with the ability to intervene and investigate attempts. And they were the avenue for other laws that punished those who aided and abetted a suicide.

Thus, although we think of assisted suicide as a modern phenomenon, it was enough of a problem long ago that laws were passed against it.

It was against these allegedly "antiquated" laws that Dr. Kevorkian waged a counter-cultural battle for twenty years. For better or worse, as one journalist noted, Dr. Kevorkian and his suicide machines "forced us to pay attention to one of the biggest elephants in society's living room: the fact that today vast numbers of people are alive who would rather be dead."

Some states, like Oregon, responded by passing new "Death With Dignity" legislation that legalized the practice (if performed by licensed physicians). Other states, including South Dakota, beefed up their existing laws to prohibit it.

Yet we still find some incongruity in our law books. For example, it is fully legal to withhold or withdraw life-saving medical treatment for someone who is terminally ill.

The distinctions are buried in the details, namely, whether the treatments merely "postpone" their death, and whether the patient had the foresight to draft a living will. Yet one of the very next statutes explains that our State "does not condone, authorize, or approve mercy-killing or euthanasia, suicide or assisted suicide," which are low-grade felonies.

* * *

Robert Goulding arrived for his murder trial on crutches and with an oxygen tank in tow. The same story was told, using the same admissions he had made to investigators.

The jurors were not allowed to hear about South Dakota's assisted suicide statutes. Instead, they were told that "suicide is the intentional taking of one's own life" and that as a matter of law, it is not suicide when another person actually performs it.

The jury deliberated for thirty minutes before convicting him.

At his sentencing, the victim's family explained their anguish and sorrow. Robert apologized. He explained the last year had been a "nightmare", and said, "I was only trying to help a friend."

On appeal, Robert's attorney pointed out several apparent inconsistencies in the suicide statutes. The Court rejected all of them.

Legally, it wasn't a "suicide" because Allen didn't take his own life, he merely consented that Robert could take it from him. Nothing in our current laws could change this result.

Robert will serve a mandatory life sentence.

* * *

Daniel K. Brendtro is a trial attorney and a partner in the law firm Zimmer, Duncan & Cole, in Sioux Falls. You can contact him s via the firm's website, www.zdclaw.com.

How to Prevent South Dakota Pedestrian Accidents

Fri, 17 Jun 2011 08:00:00 EST

A pedestrian is injured in a traffic accident every eight minutes in the United States. Nearly 60,000 people are injured around the country each year in pedestrian crashes and nearly 5,000 are killed.

The numbers speak loud and clear: South Dakota pedestrian accidents are both common and dangerous. Negligent drivers who are speeding or not paying attention can seriously injure or even kill you or a loved one in the blink of an eye.

When walking on the streets of Sioux Falls or Parker, or any part of our great state, it is important that you follow these tips to stay as safe as possible:

Be a legal pedestrian: Follow all rules and obey all traffic signs and signals. Don't jaywalk.

Look both ways: This may seem simple, but the majority of pedestrian accidents happen in multi-directional intersections.

Be aware of your surroundings: Most pedestrian accidents are caused by drivers, but holes, bumps, and poorly kept roads are also dangerous.

Don't assume drivers are paying full attention: Use caution when entering any road, even if you have the right of way.

Go the safest route: Avoid busy intersections, and always use underpasses or overpasses when available.

If even these tips do not keep you and your family safe and you are injured by a vehicle in a pedestrian accident, then we urge you to examine the possibility of filing a personal injury lawsuit against the driver to earn compensation for your medical bills and more.

To learn more about your legal rights in these cases, contact the South Dakota personal injury lawyers of Zimmer, Duncan & Cole as soon as possible. You can call us toll free at (888) 733-2992, or fill out the form on this page to schedule a free consultation.

SD Truck Accidents Involving Texting and Driving

Wed, 15 Jun 2011 08:00:00 EST

Distracted driving is one of the most prevalent causes of South Dakota truck accidents today, especially with the rise of cell phone use. Distracted driving causes many serious wrecks on area roads on a regular basis, resulting in severe injuries and even loss of life.

According to the website Distraction.gov, there are three main types of distracted driving activities:

Visual: Taking your eyes off the road to look at something else.
Manual: Taking your hands off the wheel to do something else.
Cognitive: Taking your mind off the road to think about something else.

Texting and driving is by far the worst type of distracted driving, because it takes an individual's eyes, hands, and mind off the road at the same time. If a truck driver texts and drives on a regular basis, he or she is bound to cause a serious wreck at some point.

South Dakota truck accidents caused by distracted driving (link to article) almost always result in severe consequences for those involved. If you or a loved one has been injured in one of these wrecks, you may have sustained broken bones, paralysis, back or neck injuries, and even life-threatening head or brain injuries.

The associated costs of these serious injuries can pile up quickly. You may be on the hook for medical bills, funeral costs, home renovations, wrecked cars, permanent loss of mobility, and much, much more. Your situation may be infinitely harder if you are unable to work or are suffering with immense pain or emotional distress.

If you find yourself overwhelmed in the aftermath of an accident that was caused by a distracted driver who was texting, you should call a South Dakota personal injury lawyer who can help you file a claim for financial compensation.

For more information about your legal rights, or to schedule a free consultation about your case, call Zimmer, Duncan & Cole today at (877) 789-5238. Or, you can fill out the contact form on this page. You also can read our FREE South Dakota car accident book to learn more.

Where There's Smoke, There's Firefighters Working Overtime

Tue, 14 Jun 2011 08:00:00 EST

Firefighters are heroes to all of us. But the heroes in this week's lawsuit were treated like regular people when they were shorted overtime. Their struggle to get paid is told in Michael Specht, et al, v. City of Sioux Falls. A link to the full opinion is available at LessLegalesePlease.com.

* * *

Wildfires flared up everywhere during the hot, dry summer of 2006. The State needed extra help to battle them and called upon cities and towns across the region. After receiving the State's dispatch request, Sioux Falls Fire and Rescue agreed to send six of its "wildland certified" firefighters to assist.
Some were concerned that they might not work as many hours during deployment, compared to their normal shifts back home. (Typically, firefighters in Sioux Falls are scheduled to work 204 hours each month, in eight or nine 24-hour shifts.) The City promised it would make up the difference if their hours suffered.
As it turned out, there was no shortage of work during the next two weeks.
Captain Michael Specht and his first crew reported to the base camp in Rapid City to help with a fire near Sturgis. Next, they were sent to Chadron, Nebraska, to battle a fire in the rugged terrain south of Pine Ridge. Six days later, they were sent northward to fight a 26-square-mile prairie fire near Wall. Fresh replacements were periodically sent out from Sioux Falls.
During those two weeks there was almost no "off-duty" time. When they weren't sleeping, the crew was either fighting fires, traveling to fires, or running errands to obtain maps and additional gear that the City had failed to send with them.
While at base camp, they were under severe restrictions. They could not call their wives, watch television, or leave, except as a group (and even then, only if they maintained constant radio contact and were ready to dispatch at a moment's notice).
They had been told to write down all their off-shift time, which would then be added to their regularly scheduled on-shift time. Many logged over a hundred hours in addition to their normal shifts.
After their two-week tour, the crew returned home, exhausted, happy to be home, and looking forward to extra-large paychecks.
However, Captain Specht noticed that he had been shorted 82 hours of overtime pay: although he knew he had worked 142 hours of overtime, he had been paid for only 60.
He investigated. On his time-sheets he discovered white-out and a hand a hand-written explanation: "Mike hit his 204 plus overtime so remove these hours to reduce OT". His crew received similar underpayments, averaging $2,600.00 each.
After unsuccessfully filing a grievance, they filed this lawsuit.

* * *

Federal law guarantees most employees time-and-a-half when they work more than forty hours each week. Dozens of regulations define what it means to "work".
Compensable time includes on-duty time, plus all pre-shift and post-shift activities which are "closely related" to performing the job. For example, it may include time spent driving to and from work or in training, and in some cases, the time it takes to put on safety equipment before your shift starts. It also includes time spent under restrictions related to your job.
Here, the City defended its decision not to pay overtime because of an exception that applies when there are two separate employers. For example, if you work 40 hours per week at Citibank and then moonlight 40 hours a week at McDonald's, neither employer is required to pay overtime.
The City claimed that the firefighters worked for two employers during their tour: for the City during their regularly scheduled shifts, and for the State during "off-duty" time.
The Court of Appeals disagreed. It found it unclear whether the State was an "employer" here. For example, all of the documents say the City was the employer (and merely loaning out its employees to the State). In addition, the crew didn't charge expenses to the State, but instead used the Sioux Falls Fire & Rescue credit card during the trip. And, perhaps most importantly, the firefighters' "on-shift" time was spent fighting the exact same fires as during their "off-shift" time.
This case was sent back for a trial to determine who employed these firefighters: the State and the City, or only the City. If the City was their only employer, the firefighters will be entitled to overtime as well as their attorney's fees for this lawsuit.

* * *

Daniel K. Brendtro is a trial attorney from Sioux Falls. He is a partner in the law firm Zimmer, Duncan & Cole. Ask him legal questions online at www.zdclaw.com.

Injuries from South Dakota Side Impact Collisions

Tue, 14 Jun 2011 08:00:00 EST

Side impact collision. Side-swipe wreck. T-bone accident. No matter what you call it, this type of crash is both alarmingly common and dangerous. Side impact collisions account for almost one quarter of all fatal car wrecks in the United States each year.

These collisions are usually caused when a driver violates the right-of-way of another car, thus slamming into the car in an intersection after running a red light or stop sign. Side impact collisions are especially dangerous for people in the car that is hit, because cars are not designed to sustain this type of force.

South Dakota side impact car accidents often result in one or many of these serious injuries:

Severe lacerations or burns
Broken bones
Dislocations or sprains
Back or neck injuries
Head or brain injuries
Death

If you or a loved one has been injured in a side impact collision that was caused by a negligent driver, you are likely eligible to recover financial compensation as a result. The process of starting and winning a personal injury lawsuit against a negligent driver can be very difficult, though. It gets infinitely tougher when you have to fight the insurance companies for every dollar.

To give yourself and your family the best possible chance of earning the financial compensation that you deserve, contact the South Dakota car attorneys of Zimmer, Duncan & Cole today.

You can call us toll free at (877) 789-5238 or fill out the online form on this page, and we will contact you within 24 hours. You also can read our FREE South Dakota car accident book for more information.

Old Rules Apply to Space-Age Companies, Too

Mon, 06 Jun 2011 08:00:00 EST

A decade-long court battle about a space-age roof paint is the subject of this week's case, Spiska Engineering, Inc., v. SPM Thermo-Shield, Inc. (2011 S.D. 23). A link to the full opinion is available at LessLegalesePlease.com.

* * *

Joseph Raver is the CEO and only shareholder of a South Dakota company called SPM Thermo-Shield. His company is headquartered in Custer, and it makes a variety of products used as coatings for roofs and walls.
The technology used in Thermo-Shield coatings is literally "space age". In the 1970's, several private companies helped NASA solve the problem of how to keep a reusable space craft from burning up during reentry.
They developed a ceramic coating for the shuttle's heat tiles that could withstand temperatures up to 2400 degrees Fahrenheit. The secret ingredient: microscopic ceramic bubbles.
Because these bubbles are also impervious to water and resist corrosion, Thermo-Shield adapted this technology into superior roof and wall coatings.
The company expanded into Europe, via a distribution agreement with Spiska Engineering. After a few years, this relationship soured, and Thermo-Shield terminated its agreement.
Spiska Engineering stood to lose millions of dollars, and it sued Thermo-Shield for breach of contract. Although it took six years and three trips to our Supreme Court, Spiska finally prevailed in 2007. However, the question then became how Spiska was going to collect on its $5 million judgment.
Spiska asked the court to appoint a "receiver" for Thermo-Shield. A receiver is a neutral party who steps in to run a distressed company.
The purpose of a receivership is to figure out the best way to pay a company's debts, whether by finding a buyer for the whole company or by selling the physical assets, piece by piece. Meanwhile, the receiver steps into the shoes of the owner and makes all of the business decisions, under court supervision, and usually without the input of the owner.
It took three years, but the receiver finally found a buyer for Mr. Raver's business. The receiver then requested the court's approval of the sale and mailed a notice of the proposed sale to Mr. Raver (and other interested parties).
This is where the case took an unusual turn. The trial court's order should have said, simply, that the court approved of the sale.
However, at the urging of the receiver, the trial court went several steps further. It issued an order that prohibited Mr. Raver from ever owning or working with "any company that manufactures ceramic coatings or paint products."
Mr. Raver's future employment hadn't been brought up at any time during the previous decade of litigation. And more importantly, Mr. Raver had never been a party to any of these lawsuits. Instead, this had always been a dispute between two companies.
Mr. Raver appealed this decision, which he described as "a covenant not-to-compete that spans the entire world". He argued that the trial court didn't have "personal jurisdiction" over him.

* * *

The word "jurisdiction" sounds very important and almost a little intimidating. This is perhaps for good reason, because it describes a court's power. It comes from two Latin words that roughly mean "to speak the law" (juris is "law", and dictio is "saying").
In addition to "saying" what the law is, a court also has the power to enforce its rulings. But this power is very specific, and it only extends to the people that have been properly notified about the lawsuit.
There are very old rules which dictate how a lawsuit begins, and they focus entirely on giving the defendant notice of the claim.
In old England, the sheriff would actually arrest you and bring you to court so that there was no mistake about whether you had been sued.
Today, we still use the sheriff (or a process server), but instead of arresting you, he hands you a summons. This document warns you about the lawsuit, tells you where the legal papers will be filed, and gives you a deadline to respond.
Except in rare cases, if you aren't "served" with a summons, the court has no jurisdiction over you.
Here, Mr. Raver argued that the trial court didn't have jurisdiction to forbid him from owning or working for another ceramics company.
The Supreme Court agreed. Mr. Raver had never been a party to this ten-year lawsuit, and nobody had ever suggested that he should be. Most importantly, he had never been served with a summons of any kind. Without personal jurisdiction over Mr. Raver, the trial court had no authority to tell him anything.

* * *

Daniel K. Brendtro is a trial attorney from Sioux Falls. He is a partner in the law firm Zimmer, Duncan & Cole, and he edits the blog LessLegalesePlease.com

Find a Lawyer after a SD Bicycle Accident with a Negligent Driver

Fri, 03 Jun 2011 08:00:00 EST

If you saw our earlier article about how to earn financial compensation after a bicycle accident that was not your fault , you know some of the basics of personal injury cases. You also know how important it is to hire a lawyer to help with your claim.

However, you may still be wondering how to find the right lawyer for you. As with anything else, selecting a lawyer is not just about price. There are numerous factors that combine to determine the best fit, including your personality, your individual situation, and your injury claim.

Your search for a lawyer should probably go beyond billboards or a slick yellow page advertisement. Referrals from a friend or neighbor can be helpful, but beware of proceeding on a sample size of one case alone. Due diligence when selecting a lawyer will pay off in time.

Some of the qualities that you should look for in any South Dakota personal injury attorney include:

Experience
Proven results
Honesty
Integrity

In addition, a good South Dakota personal injury lawyer will always be open to your inquiries. Most, if not all, injury attorneys offer a free consultation before you commit to hiring them. This is your opportunity to learn more about your claim and determine if a certain firm is a good fit for you.

In closing, we know that the period after a serious accident is difficult. The last thing that you want to do is conduct an extensive search for an attorney to represent you. However, you may find that this is the most valuable time you've ever spent, since you will be rewarded with the compensation that you deserve.

For more information about bicycle accidents, including those involving children or cyclists on busy roads, call Zimmer, Duncan & Cole today at (888) 733-2992. You can schedule a consultation with one of our lawyers in our Sioux Falls or Parker, SD office at a time that is convenient for you.

Some Problems Money Can't Fix

Wed, 01 Jun 2011 08:00:00 EST

This week's case lends itself to a terrible pun: we learn about a man named Mr. Sellers who no longer wanted to be the "seller" of his home.
The story is told in the matter of Steven D. Johnson v. Harrell Sellers and Sandra Green (2011 S.D. 24).

* * *

The homestead exemption is a law that protects the primary residence of a married couple. In particular, it safeguards the ownership interests of both spouses in their home. It prevents one spouse from selling, renting, or taking a mortgage out on the house without the other's permission. It eliminates secret dealings and surprises, with the goal of guaranteeing a roof over the family's head.
If I were going to rename the rule to make it more understandable, I would call it the "It Takes Two to Tango Rule".
There is a similar rule that applies the moment a divorce is filed. From then until the divorce is completely finalized, neither spouse is allowed to sell any marital property, including the home, without the other spouse's or the court's permission.
So in good times or in bad, it's legally impossible to do anything to the ownership of a marital home without the blessing and signatures from both husband and wife.

* * *

Harrell Sellers did not know about these rules when he agreed to sell his rural Brookings County home and acreage to a man named Steven Johnson. They agreed on a price; they signed a contract; and they set a closing date for June 15th. (The closing date is the day when the buyer pays the money and the seller gives the deed.)
At the time, Mr. Sellers was going through a divorce. Up until just a few months earlier, he had lived in this home with Sandra Green, his soon-to-be ex-wife. In other words, this had been their marital residence. Until the divorce was final, the residence was still protected by the homestead exemption and the divorce rule. Without her signature, the transaction could not go forward.
Meanwhile, the buyer had no idea Mr. Sellers was still married. All of the documents or letters from Mr. Sellers said he was selling the property as a single individual.
Soon, Mr. Sellers' attorney learned about the transaction and told his client that they absolutely needed Sandra Green's permission. She initially refused because she thought the price was too low. The June 15th closing date came and went.
Mr. Sellers was also taking longer than expected to remove his personal belongings from the property. He asked to delay the closing so that he could hold an auction. The buyer agreed and even helped Mr. Sellers get ready for it.
After further negotiating, Ms. Green agreed to give up her interest in the marital residence. All of the issues were now cleared up, and Mr. Sellers could finally sell his property.
But instead of proceeding with the sale, Mr. Sellers sent a letter to Steven saying that his property was no longer for sale.
The buyer started this lawsuit to force the sale. The following day, Mr. Sellers' attorney sent a letter of surrender. His client would agree to sell, and suggested a new closing date of September 16th.
However, the following week, Mr. Sellers changed his mind again. He fired his attorney. The property was not for sale.

* * *

When someone won't follow through on a promise, the usual lawsuit is called a "breach of contract" action. There are three items to prove: was there a promise, was it broken, and how much money can fix the broken promise? Ideally, the damages awarded will allow the injured party to go out and "buy" whatever it was they missed out on because of the broken promise.
It's different when the broken promise involves real estate. Every home, building, and piece of land is unique. The law presumes that money can't replace the property.
The remedy for a broken promise in these types of cases is called "specific performance". The buyer asks the court to force the seller to perform.
Mr. Sellers defended his change of heart on the basis that the extension of the closing date was oral, rather than written, and because his wife hadn't signed the first agreement. The Court rejected both arguments.
He is legally required to go through with the sale.

ALWAYS Wear a Helmet When Driving or Riding on a Motorcycle in SD

Wed, 01 Jun 2011 08:00:00 EST

Motorcycling is a favored spring and summer activity around here. However, this activity often leads to devastating South Dakota motorcycle accidents.

While many wrecks involve at least one car in addition to a motorcycle, it's the rider and his or her passenger that usually end up bearing the brunt of the crash. In fact, over 96 percent of all motorcycle wrecks lead to some sort of injury.

Anyone who drives or rides on a motorcycle needs to make sure to practice safety. Apart from driving as safely as possible, those riding on a bike also can wear protective clothing (such as a leather jacket) and protection for their eyes.

Most importantly, anyone who drives or rides on a motorcycle NEEDS to wear a helmet at all times. Not only is it the law for those under the age of 18, but it is also common sense. Helmets are the most important piece of equipment if a wreck occurs.

Helmets help protect you against head or brain injuries in South Dakota motorcycle accidents. They can help prevent brain damage, mental incapacitation, paralysis, and even death when catastrophic crashes inevitably occur.

For more information about helmet safety and the importance of finding a helmet that fits you and meets your safety requirements, visit your local motorcycle shop. It should have a large selection of helmets to help protect you against serious injuries and the loss of life.

For more information about what to do in the instance of a serious motorcycle wreck that was caused by another driver, or to see if you have a personal injury claim after such a wreck, call us today at (888) 733-2992.

The experienced South Dakota personal injury lawyers of Zimmer, Duncan & Cole represent people just like you, helping those in and around Sioux Falls and Parker, SD earn the financial compensation they deserve.

Disorder in the Court

Mon, 23 May 2011 08:00:00 EST

There are a few bad apples in any profession, and unfortunately the legal system is no exception.
This week, we hear about a judge who lost his way after arriving on the bench. His story is told in a case called The Formal Inquiry Concerning Judge A.P. Fuller (2011 S.D. 22).

* * *

Pete Fuller was one of the first judges appointed by Governor Rounds in 2003. Prior to his time on the bench, Judge Fuller worked for over thirty years as an attorney in Lead, South Dakota.
Those who know Judge Fuller call him a "likable guy". However, his behavior after becoming a judge suggests a darker side.
During open court, Judge Fuller was impatient, rude and condescending. He routinely got angry. He acted disrespectfully toward almost everyone.
He swore at the clerks, at the attorneys, and at nobody in particular. He used phrases like "the goddamn clerk," "the goddamn schedule," and "the goddamn calendar." From his chambers, the clerks heard him screaming and using the "F" word.
The judge would laugh about his off-color comments. His clerks were not amused. Within a year, two of the deputy clerks refused to even enter his courtroom.
The clerks are the unsung heroes of any courthouse. They are the judge's right hand, and sometimes the left hand, too. All the good judges (and attorneys) I've ever known go out of their way to take care of the clerks. Without their hard work nothing would get done.
Yet during a jury trial in 2007, Judge Fuller dismissed the clerk from his courtroom. When she suggested this was not such a good idea, the judge got very angry.
Later at that trial, the clerk tried to explain the difficulty of feeding a jury in Custer before restaurants were open for the tourist season. Judge Fuller got red in the face, pointed his finger at her, and loudly instructed her, "You will do as you are told."
The judge treated attorneys with equal derision.
He called one attorney "an a--hole" back in chambers, and then in open court used the middle-finger gesture toward the attorney and his client. (In a footnote, the Court then tells us how to say "flipping the bird" in Latin: digitus impudicus.)
The attorney who received this bird-flip lost his case and then appealed. The Supreme Court sent it back for a new trial. Judge Fuller thought the high court was wrong, so he ignored their instructions and ruled the same way again.
On at least one occasion, Judge Fuller engaged in a judicial no-no called ex parte communications (when the judge talks to only one attorney, without the presence of opposing counsel).
Judge Fuller called juvenile delinquents "my little peckerheads". He told female attorneys that the profession was better off without them. While hanging artwork of Native American leaders on his courtroom walls, he said "This is where I hang my Indians."
He suggested these were jokes, but nobody was laughing. For seven long years nobody dared to complain, either. It's never a good idea to get on a judge's bad side.
The tipping point came last year when he called the Rapid City police department "a bunch of racists". The police chief filed a formal complaint, along with the county sheriff and State's Attorney.

* * *

All judges take an oath to uphold the constitution and to abide by the Judicial Code of Conduct. The oath is not an idle promise. Our judges must always act with the highest integrity because the legal system cannot function without the public's confidence. Our state Supreme Court disciplines those who stray from their oath.
Despite these high standards, the Court had never encountered a situation that required removing a judge from office...until now.
As our Court explained, the purpose of disciplining judges is not to punish them, but instead to protect the judiciary. Ours is a government of laws, not of men.
Judge Fuller's actions extended far beyond his own chambers: his conduct harmed the reputation of every judge in this state.
The Court retired Judge Fuller, effective immediately. But it also hoped he was "capable of rehabilitation."
The Court will allow him to try again, under strict supervision, if the Judge complies with a long list of conditions, including a six-month suspension, indefinite probation, and behavioral therapy. Judge Fuller has thirty days to decide which option to pursue.

* * *

Daniel K. Brendtro is a trial attorney from Sioux Falls. His firm, Zimmer, Duncan & Cole, LLP, has represented clients statewide since 1948 on all types of cases, including injuries, accidents, criminal defense, and business lawsuits.

South Dakota Bicycle Accidents Involving Children: Common & Dangerous

Thu, 19 May 2011 08:00:00 EST

Children riding bikes is an American tradition. Training wheels, paper routes, and family bicycle outings are as much a part of our national identity as apple pie, baseball, and the stars and stripes.

However, there are also inherent dangers involved with bike riding, which apply to children as much as, if not more than, adults. Bicycle accidents involving children can happen as a result of natural causes or the negligence of others.

The common causes of South Dakota bicycle accidents involving children include:

Rainy weather
Jumps or ramps
Bad drivers
Drunk drivers

As any parent can tell you, a child sustaining an injury is one of the scariest things to experience. When injuries are serious or life-threatening, the stakes are even higher. When injuries are caused by someone else, there are no words to describe the heartbreak.

If your world has been turned upside down by a negligent driver, we understand your situation. We also have the experience and aggressiveness to take control of your case, helping your family recover from the crash.

Call the South Dakota personal injury attorneys of Zimmer, Duncan & Cole today at (888) 733-2992 to learn more about your legal rights. You also can schedule a free consultation by filling out the form on this page. Take action today.

When the Guv'ment Wants Your Land, the Guv'ment Gets Your Land

Mon, 16 May 2011 08:00:00 EST

Few things better illustrate the breadth of our government's powers than its right to take away our land. This is called the power of "eminent domain", and it can be used to take private land for any public purpose at any time.
When the State needs land, it is often able to informally negotiate an agreeable price without actually using its power of condemnation. However, if the State and the owner can't agree, the State initiates a lawsuit, and a jury decides the owner's compensation.
That's the setting for this week's case, State of South Dakota v. Philip G. Clark and Hansen Manufacturing Corp. (2011 S.D. 19).

* * *

Philip Clark owned property on West 12th Street in Sioux Falls, South Dakota, which he leased to Hansen Manufacturing. Hansen makes large, agricultural and industrial conveyer belt systems. You've probably seen some of their products without realizing it: the long, horizontal steel structures connecting the tops of elevator grain silos.
In 2005, the Department of Transportation began moving forward with a plan to widen 12th Street and install a median. In order to obtain the necessary land, the State followed its usual procedure-sending letters to adjoining landowners and proposing a price.
Mr. Clark responded with a counter-offer. After continued negotiating, he and the State reached an impasse. Although all of his neighbors had accepted the State's proposed prices, Mr. Clark refused the State's final offer of $277,550.00.
However, when the State wants to build a road, it doesn't take "no" for an answer.
The State starts a condemnation proceeding by filing a petition at the county courthouse that announces that it is taking the land and requests a jury trial to figure out the right price.
If the State wants to begin using the land immediately, it is required to deposit with the court the amount of its final offer.
From that moment on, the State can begin construction. In exchange, the State can't back out of the process...it is legally committed to purchase the property for the amount selected by the jury.
This procedure is called a "quick take", and it greatly simplifies and speeds up public projects like widening a road.

* * *

The right of eminent domain is older than our republic. It traces its roots to the monarchies of long ago, when kings and feudal lords could take the land they wanted or needed, without question, and often without paying for it. Even in colonial times, compensation was not always the norm.
The drafters of our Constitution were careful to avoid this. The Bill of Rights requires "just compensation" when "private property is taken for public use".
The level of this compensation is determined by a jury trial. Both sides call expert witnesses who give opinions. The jury is allowed to visit the property. And the jury is allowed to consider the benefits that result from the State's improvements.
If the jury's award exceeds the amount already deposited with the court, the trial judge adds interest to the difference.
Most importantly, if the total judgment is more than 20% larger than the State's "final offer", the State has to pay the landowner's attorney fees and the costs of its expert witnesses. This penalty encourages the State to always make fair and reasonable settlement offers.

* * *

At trial, the jury determined that Mr. Clark was entitled to $320,000.00 as just compensation for his land. This was only about 13% more than the State's final offer. However, Mr. Clark was also entitled to prejudgment interest of $21,074.91.
Since the total of these two numbers was more than 20% greater than the State's final offer, the trial judge awarded Mr. Clark his attorney's fees ($51,940.00) and the costs of his expert witnesses ($17,732.85). All told, this cost the State an extra $112,000.00 more than its original, final offer.
The State appealed the trial judge's decision to award attorney's fees and costs. The State believed that prejudgment interest should be excluded from the "greater than 20%" calculation.
The Supreme Court disagreed. It read the statutes involved and determined that the trial judge properly included interest in the 20% calculation. The Court explained that it was because of the State's decision to file a lawsuit that interest was necessary in the first place. This result will continue to encourage the State to make fair offers from the beginning and avoid litigation in the future.

* * *

Three Types of Road Burn from South Dakota Motorcycle Wrecks

Wed, 11 May 2011 08:00:00 EST

If you read our library article on why you need to get medical treatment for road rash injuries in South Dakota motorcycle accidents , then you know how damaging and dangerous this type of motorcycle wreck injury can be to you or your loved ones.

However, for those who have suffered this type of injury and have been through the medical treatment, we thought it might be helpful to go over the three main types of road rash or road burn injuries that can occur:

Avulsion Injuries

This is the most severe type. Avulsion injuries occur when the road burn is so bad that your muscles, tendons, and even bones beneath the skin are showing.

Compression Injuries

Compression injuries occur when part of a rider's body, such as a leg and arm, gets crushed between two objects, such as the road and bike, while sliding. Broken bones can easily result.

Scraping Injuries

This is the most minor type. Painful scrapes and burns happen when the rider slides across the pavement. They require treatment to fight infection and may require stitches.

If you or a family member has suffered any one of these types of road burn injury in a South Dakota motorcycle accident that was not your fault, you may be able to earn financial compensation as a result. This money can cover your medical bills, future care, lost wages from missed time at work, and much more.

For more information about your legal rights in these cases, call the South Dakota personal injury attorneys of Zimmer, Duncan & Cole today for a free consultation. You can reach our Parker or Sioux Falls offices by calling toll free at (888) 733-2992 anytime.

The Case of the Crooked Contractor

Tue, 10 May 2011 08:00:00 EST

This week, we learn about a dishonest door-to-door repairman. He was convicted and sentenced to twenty-five years for a scheme that targeted an elderly Parkston woman.
Several years later, he filed a new lawsuit challenging his conviction. In these types of challenges (called "habeas corpus" proceedings), the inmate sues the prison warden and requests release. If successful, the Court tells the warden to release the prisoner.
The case is James Douglas Lawrence v. Douglas Weber, Warden of the S.D. State Penitentiary (2011 S.D. 19).

* * *

In January 1996, Mr. Lawrence knocked on Marcella Koster's front door and sold her on an idea to waterproof her basement. The eighty-year-old Mrs. Koster agreed, especially because Mr. Lawrence told her that FEMA would reimburse the cost. (FEMA is the federal government's disaster agency.)
Mr. Lawrence came four times to work on the basement walls. He applied a "sealant" and then "strengthened" them by drilling several holes that he filled with concrete.
Each time Mr. Lawrence worked on the basement he requested payment before leaving. Each time she made a payment, Mrs. Koster asked about the FEMA reimbursement. Each time, Mr. Lawrence had an answer.
First, he told her that he would take pictures and send them to FEMA. Next, he assured her he was already "taking care" of things. The third time he told her she would soon receive a call from FEMA.
Finally, Mr. Lawrence presented Mrs. Koster with a handwritten invoice and told her to submit it to FEMA. The amounts he scrawled didn't match the $5000.90 she had paid him. The rest was mostly illegible.
After paying the fourth installment, Mrs. Koster received a call from someone she soon suspected was posing as a FEMA agent. She then contacted FEMA directly, which refused to pay for any of the waterproofing costs because there was no such program. (A similar reimbursement program had apparently ended two years earlier.)
Not surprisingly, she discovered the repairs were worthless: her basement walls still leaked.

* * *

The law caught up with Mr. Lawrence. A jury convicted him, and he began serving a twenty-five year sentence.
In particular, the jury convicted Mr. Lawrence of a crime called "theft-by-deception". To do so, the jury was required to find that Mr. Lawrence intended to defraud his victim.
After serving several years of his sentence, Mr. Lawrence asked the Court to take a second look, based on a clever theory: that the jury mistook him for a crooked contractor, when, instead, he was merely an incompetent one. (This distinction obviously won't help him if he wants more customers someday, but, if true, it would be enough to get him out of prison.)

* * *

Since this was now several years after his trial, Mr. Lawrence wasn't appealing his conviction, but, instead was using a procedure called a writ of habeas corpus.
The Latin words "habeas corpus" literally translated mean "you have the body". The phrase is directed at the warden, who is the official with custody of a prisoner's "body".
Habeas proceedings can be used at any time during incarceration but are very narrow in scope. They ask a judge to confirm that an inmate's incarceration is legitimate, and whether his conviction was backed up by enough evidence. In each case, the evidence is viewed in a light most favorable to the prosecution.
Here, Mr. Lawrence argued that the jury didn't hear evidence that he intended to trick Mrs. Koster, but, instead, that he was just plain awful at his job. Several other contractors have successfully used the same defense. But it wasn't going to work here.
The Supreme Court pointed to evidence which disproved his "ignorance" theory. The original jury had heard from a previous customer to whom Mr. Lawrence had promised the same, false FEMA reimbursement. That customer discovered (and told Mr. Lawrence) that there was no such program.
In addition, Mr. Lawrence's brother, Mike, had warned him the repairs wouldn't work. In response, Mr. Lawrence told his brother, "It's not my problem...It's not my fault if [Mrs. Koster] thinks this is going to stop the water from coming in."
The jury had more than enough proof of Mr. Lawrence's intent: he knew what she expected, his statements created those expectations, and he profited from their arrangement. His conviction was valid, and Mr. Lawrence's "body" will remain behind bars.
A link to the full opinion is available on my law firm's website, www.zdclaw.com.

* * *

Who is at fault for South Dakota pedestrian accidents?

Thu, 05 May 2011 08:00:00 EST

When cars or trucks collide with pedestrians, serious injuries and even loss of life can easily occur. Around 5,000 pedestrians are killed each year in the U.S. and another 60,000 are injured. Pedestrian accidents account for around 11 percent of all motor vehicle fatalities.

Who is at fault for pedestrian accidents? Usually the driver of the vehicle, but it depends on the exact situation. If a pedestrian is in a crosswalk, on a sidewalk, or obeying traffic laws, the individual always has the right of way. As such, most accidents that happen are the fault of negligent drivers.

There are some instances in which the driver cannot be held accountable for South Dakota pedestrian accidents. If, for example, someone jumps out into traffic and gives the driver no chance to react, then the driver can't be held liable. Pedestrian accidents that happen on the shoulder of busy roads or major highways also can be a gray area.

If you or a loved one has been injured in a pedestrian accident that was not your fault, you may be able to recover damages for the wreck. Your financial compensation may cover:

Medical bills
Ongoing care
Home renovations
Missed time at work
Extreme pain/disability
Emotional suffering

However, the insurance companies that have to pay the amount of the claim will not just offer you a full settlement. Instead, they will fight you for every penny, trying to trick you out of the amount you truly deserve or to outlast you in the hopes of a favorable settlement.

You have to remember that you are at war with the insurance companies. The best way to arm yourself for the inevitable battle is to hire an experienced and aggressive South Dakota personal injury attorney who will look after your best interests and not back down.

To learn more about the South Dakota personal injury lawyers of Zimmer, Duncan & Cole and to see if we are right for your case, call (888) 733-2992. We offer a free consultation to clients who meet simple criteria, and will not take your case unless we are absolutely confident that we can help you.

South Dakota bicycle accidents can cause life-changing injuries.

Tue, 03 May 2011 08:00:00 EST

A whopping 85 million Americans ride bicycles on a somewhat regular basis. This includes the competitive cyclist who admires Lance Armstrong as well as the 18-year-old biking back and forth to school.

Bicycling has its inherent dangers. Approximately 600 bicyclists are killed each year in the U.S. and another 50,000 are injured. Some of these happen in one-bike crashes on slippery corners. Others, unfortunately, happen because of negligent or inattentive drivers.

South Dakota bicycle accidents with negligent drivers are a daily reality. These drivers, who do not see bikers or respect their right to the road, can cause serious wrecks that easily lead to critical injuries or even loss of life.

Some of the injuries that can result from bicycle accidents include:

Serious scrapes and burns
Broken bones
Spine injuries
Head injuries
Neck injuries
Death

As anyone who has been injured in a bicycle accident involving a car or truck can attest, the costs for these serious injuries can add up all too quickly. Not only do you have to contend with medical bills in the tens of thousands, but also ongoing care, possible home renovations, and the reality of lost wages from missed time at work.

This can seem like a bleak picture. If you are committed to taking action and not being a victim, you may be eligible to recover damages for your related costs. Call an experienced South Dakota personal injury lawyer that you trust to learn more about your legal rights.

You can reach the South Dakota personal injury attorneys of Zimmer, Duncan & Cole today at (888) 733-2992 to schedule a free consultation about your case. We can even come to you if you are not nearby.

The Cost of Serving Drinks with Dinner

Mon, 02 May 2011 08:00:00 EST

This week, our column heads to Brookings for a night on the town. Three establishments filed a lawsuit challenging the City's pricing system for new liquor licenses. The case is, 9 Bar & Nightclub, Cubby's Sports Bar & Grill, and Skinner's Pub v. City of Brookings (2011 S.D. 16).

* * *

Prior to 2008, cities and towns in South Dakota were only allowed to issue a limited number of on-sale liquor licenses. ("On-sale" liquor means the beverages are consumed on the premises. "Off-sale" means the beverages are sold closed, in the packaging, and must be consumed somewhere else.)
The maximum number of on-sale licenses was based on population. Each town under 1,000 could have three, and larger towns were allowed another license for each additional 1,500 residents.
These limitations have made on-sale liquor licenses scarce and valuable. A new bar can be added only when an old bar goes out of business (or when the town grows.)
In addition, this old system made it nearly impossible for an existing restaurant to add hard alcohol to its beverage lineup. The zero-sum game required a restaurant to buy an existing bar, shut it down, and then transfer the liquor license over to the eatery. This rarely made economic sense.
The Legislature attempted to fix this problem during the 2008 session. It passed a bill allowing cities to issue an unlimited number of on-sale licenses for full-service restaurants.
These new licenses are only available in restaurants where a waiter or waitress delivers food and drink offered from a printed food menu to patrons at tables or booths, but not those that only serve fried orders, sandwiches, hamburgers, or salads.
The price for these restaurant licenses was set at the higher of two numbers: either the price of the last sale of a regular liquor license between two private parties in the city, or one dollar for every resident.
Brookings, technically, has zero private license sales. Instead, Brookings has only one liquor license, which is owned by the City. The City then leases out the use of this license by entering into "operating agreements" with individual bar owners.
Since the owners can then sell or transfer the operating agreements, this system is virtually the same as issuing licenses. But the City of Brookings chose to read the statute literally. The City determined that since there were technically no "license sales", then it could set the license fee at the rate of one dollar per resident, which is $18,504. (Market rate, otherwise, is around $100,000 in Brookings.)
This didn't sit well with existing bar owners in Brookings, who had paid considerably more for their own liquor licenses, and didn't want cheap competition.
Shortly after this lawsuit was started, the Legislature passed an additional amendment to the liquor license rules, which clearly made the rules the same for Brookings. "Operating agreements" were now the same as "licenses".
Going forward, the City would have to issue licenses at market rate, rather than for the dollar-per-resident figure.
The big question in this case, though, was what to do about the system Brookings had already set up (prior to the 2009 amendment). Would the City be forced to collect more money from those restaurants that had already bought licenses at the cheaper rate?

* * *

When the Legislature passes a new law, it isn't usually retroactive. This rule protects people (and businesses) from losing rights they've started to rely on and expect. (This concept is central to the idea of being "grandfathered in".)
The exception to this rule is when a new law was passed in order to "clarify" a previous law. In that case, the new law isn't changing anything, it's just explaining existing law.
Here, the Court decided that the 2009 amendment was only a clarification and not a new change in the law. This means that nobody will get the benefit of the mistaken, lower rate, and the city will have to charge $100,000 for the privilege of serving drinks with dinner.
A link to the full opinion is available on my law firm's website, www.zdclaw.com.

* * *

If you have a question about the law or a recent court case, please send it to me. I'll do my best to answer it in plain English, and without "legalese". You can reach me at dan@zdclaw.com or "Less Legalese, Please," 5000 S. Broadband Lane, Suite 107, Sioux Falls, SD 57108.

* * *

Important Safety Tips to Help Avoid South Dakota Motorcycle Wrecks

Sun, 01 May 2011 08:00:00 EST

The South Dakota motorcycle accident statistics are clear: riding can be simultaneously enjoyable and dangerous. Over 96 percent of all motorcycle crashes result in some sort of injury to the rider, almost half of which are serious or life-threatening in nature.

Sometimes you simply cannot avoid being caught up in a South Dakota motorcycle accident. In fact, 75 percent of all motorcycle crashes involve another vehicle, and 60 percent are caused by other drivers who do not see or respect the rights of riders on the road.

However, there are some simple steps you can take to ensure that you and your passengers are as safe as possible while riding a motorcycle:

Always wear a helmet;
Always wear protective clothing;
Obey all traffic and speed limit laws;
Drive defensively around cars;
Complete a motorcycle safety course;
NEVER drink and drive.

If you follow these safety tips, you can drastically minimize your chances of being injured in a motorcycle crash. If safe driving is not enough, though, and you or a loved one gets injured by a negligent driver, you may be eligible to recover damages as a result.

The financial compensation you may be able to earn can cover your medical bills, ongoing care, home renovations, missed time at work, and even very real instances of pain and emotional suffering. Call our South Dakota personal injury lawyers today to learn more about your legal rights.

You can reach Zimmer, Duncan & Cole anytime by calling toll free at (888) 733-2992. You also can read our FREE special report to learn more: 7 Deadly Sins That Can Wreck Your Injury Case.

Why Accomplices are Terrible Witnesses

Tue, 26 Apr 2011 08:00:00 EST

Criminal trials never unfold like they do on television. There is no script. Mistakes are always made on both sides. Despite the imperfections, this messy process usually yields the right result.
Once in a while, though, the mistakes are so big that the defendant is denied a fair trial. The solution is to send the case back for a second attempt.
That's the result in this week's case, State v. Nathaniel J. Thomas, (2011 S.D. 15).

* * *

In the early morning hours of September 29, 2008, a suspicious fire burned The Pressbox in Vermillion. (Many Coyote alums fondly refer to this bar as their "other home" during college.)
The police suspected arson. Behind the building they found a Molotov cocktail: a gasoline-filled bottle with a cloth "fuse" sticking out of it. Without any other leads, the case stalled.
Almost a year later, a tip led them to Nathaniel Thomas, and his two cousins Jimmy and Jeremy. Nathaniel lived in an apartment across the street from The Pressbox. He had called 911 to report the fire, but denied any involvement.
Nathaniel's cousin, however, told a different story. Jimmy claimed the trio had been drinking heavily, late into the night. Jimmy and his brother began gathering ingredients for a fire: gasoline siphoned from Nathaniel's car, paper towels from his kitchen, and empty beer bottles. They used the ingredients to set fire to a patch of gravel twenty feet behind the bar.
Eventually the fire died down, and the boys headed to bed, leaving the smoldering mess behind.
However, ten minutes later, Jimmy said he saw the fire had started up again. He called his cousin and told him to report it. Nathaniel initially refused, but finally agreed. Most importantly, Jeremy told the investigators on two different occasions that Nathaniel didn't set the fire.
Based on phone records, the prosecutor suspected all three were involved and charged each of them with "reckless burning", rather than arson. The crime of arson requires intent to burn down a building. Reckless burning is the crime of starting a dangerous fire that could burn down a building or harm others, even if that wasn't your plan. Both crimes carry the same punishment.
Jimmy and Jeremy soon entered into a deal with the State. In exchange for their guilty pleas, they were required to testify against their cousin.
In the meantime, some bad blood had apparently begun to develop between the cousins. Nathaniel claimed the two were angry at him because he had assaulted his cousin Jimmy.
At trial, it appeared this bad blood might have infected the trial. Although Jimmy had twice before told investigators that Nathaniel was not involved, he changed his story at trial and said Nathaniel helped set the fire. The prosecutor claimed Jimmy had lied twice to the investigators, but now was finally "coming clean" at trial. The jury voted to convict Nathaniel. He appealed his conviction.

* * *

The problem of "accomplice testimony" is nothing new. Our courts have long recognized that accomplices are terrible witnesses.
When two people are charged with the same crime, the incentive is just too great for one of them to "tailor the truth to his or her own self-serving mold". Because of this, a jury must always be told that an accomplice "is regarded as a corrupt source of testimony," and their testimony should be "received with suspicion and with the very greatest care and caution."
In addition, there is a rule that a person cannot be convicted of a crime based only on accomplice testimony. Instead, the story must be corroborated by testimony or physical evidence that helps prove this particular defendant committed the crime.
Unfortunately, the jury was not told about these rules, and there was no other evidence suggesting Nathaniel himself had set the fire. Nathaniel's lawyer should have asked the trial judge to explain this during the jury instructions. However, his lawyer failed to do so.
Because of these "plain errors", the Supreme Court agreed that Nathaniel is entitled a new trial.
A link to the full opinion is available on my law firm's website, www.zdclaw.com.

* * *

If you have a question about the law or a recent court case, please send it to me. I'll do my best to answer it in plain English. You can reach me at dan@zdclaw.com or "Less Legalese, Please," 5000 S. Broadband Lane, Suite 107, Sioux Falls, SD 57108.

* * *

When Insurance Companies (and Judges) Just Won't Listen

Tue, 19 Apr 2011 08:00:00 EST

It's rare for a court case to ever make it into a Supreme Court opinion. Our Court has released only a baker's dozen of opinions so far this year. During that same time, thousands of cases have been filed across the state.
So it is quite unusual when the same case ends up in front of the Supreme Court twice. That's what happens in this week's case, Bonnie & Paul Bertelsen v. Allstate Insurance (2011 S.D. 13). As we'll see, the neither Allstate nor the trial judge was very helpful to the Bertelsens.

* * *

Bonnie was injured in a car accident the day after Christmas in 2005. She worked as an in-home, pediatric nurse. On the way to a patient's house, her car was struck by another vehicle with tremendous force. After six weeks in the hospital, countless surgeries and eight months of recuperation, her medical bills totaled $382,849.92.
With the help of her attorneys, Bonnie began asking her insurance companies to pay those bills. Some said "no".
The first company to refuse coverage was AIG, her employer's workers comp carrier. AIG said that Bonnie's injuries happened on the way to work, rather than during work. (Bonnie didn't start getting paid until she arrived at a residence.) Thus, AIG believed the policy did not apply.
Much, much later, AIG would change its mind. But in the two years until AIG backed down, this denial of coverage was very significant for one of Bonnie's other policies, namely the auto insurance she had with Allstate.
Her auto policy included a benefit which paid $100,000 for medical bills in the event of an accident.
But Allstate's policy also included this exclusion: "This coverage does not apply to any person to the extent that the treatment is covered under any workers' compensation law."
So if AIG had provided coverage, Allstate was off the hook. But during that two year window where AIG was denying coverage, Allstate had an immediate duty to pay $100,000 towards Bonnie's medical bills.
(If you're already frustrated with all this insurance mumbo-jumbo, just think how Bonnie must have felt as she tried to figure it out from a hospital bed! This is why it helps to have a lawyer in your corner.)
Despite its duty, Allstate refused to pay for Bonnie's medical bills. It sent letters saying it was "investigating" the issue.
Allstate didn't move very fast, however, with its investigation. Two years later, Allstate had not paid a dime. Bonnie then filed this lawsuit.
Bonnie brought two claims against Allstate. The first was for breach of contract. In other words, Allstate was breaking the promises it had made in the insurance policy by refusing to pay.
The second was for bad faith. This type of claim is brought against insurers that don't "play fair". The insurance company faces the possibility of paying extra damages...not just enough to pay the claim it denied, but multiple times that amount. The threat of these extra damages forces insurers to act in line with their catchy mottos: "like a good neighbor" and "you're in good hands".
In 2009, our State Supreme Court agreed with both claims. The Court said that Allstate had breached the contract, and that it had committed the sin of bad faith, because there was no good reason for not paying.
The Supreme Court said the only issue left was for a jury to decide how much Allstate would have to pay in damages. It sent the case back for a trial on damages.
At trial, however, the judge all but ignored the higher court. The trial judge refused to let Bonnie introduce important evidence, while he let Allstate explain why it believed it had no duty to pay. Not surprisingly, the jury voted for Allstate.
On this second appeal, the Supreme Court was livid. There was no "explaining" to be done here by Allstate. Once AIG had denied workers compensation coverage, Allstate had an immediate duty to pay. This duty existed even if AIG was wrong. (In that case, AIG would later need to repay Allstate for stepping up to the plate for it....This type of rule helps protect injured people, who are the least likely to have an extra $100,000 lying around for their medical bills.)
The Court took the original trial judge off the case and sent the case back for another trial. A new jury will decide the damages issue later this year.

* * *

In this column, I explain recent court cases and answer your legal questions in plain English. Send questions or comments to dan@zdclaw.com or "Less Legalese, Please," 5000 S. Broadband Lane, Suite 107, Sioux Falls, SD 57108.

* * *

Symptoms and Treatment for Broken Ribs after SD Truck Accident

Thu, 14 Apr 2011 08:00:00 EST

Anyone who has ever broken a rib will tell you that it is one of the most painful and debilitating of injuries. Due to the force involved in most tractor-trailer truck and car accidents on South Dakota roads, broken ribs often result.

Some of the symptoms of broken ribs in a South Dakota truck accident include:

Sharp pain while breathing;
Extreme pain in chest;
Tenderness in ribs to touch;
A "crunchy" feeling of bone under skin.

If you feel any of these symptoms, or believe that you may have fractured a rib in a wreck, it is absolutely crucial that you go to the nearest emergency room to get checked out. The ribs protect some of your most crucial organs, and any blunt force in this area could have caused internal damage.

If your accident was caused by a negligent truck driver, you may be eligible to recover damages for your related costs. Medical bills, treatment, medicine, and lost wages from being unable to work can quickly pile up. You don't want to be left holding the bill for someone else's irresponsible behavior.

For more information about your legal rights, we strongly advise that you contact an attorney who is experienced in these types of cases. An aggressive South Dakota personal injury lawyer will fight against the insurance companies on your behalf, giving you the best possible chance at earning the maximum amount of financial compensation.

Call Zimmer, Duncan & Cole today at (877) 789-5238 for more information. You can schedule a free consultation about your case at anytime that is convenient for you in our Parker or Sioux Falls, SD offices.

Cause of Paralysis in Catastrophic South Dakota Car/Truck Accidents

Wed, 13 Apr 2011 08:00:00 EST

We all hear stories of worst-case scenario car wrecks, but we never think they'll happen to us or a family member. However, negligent car or truck drivers can come out of nowhere to cause a serious wreck, resulting in a tragic outcome such as paralysis or even wrongful death.

Paralysis can happen in a number of ways. It can occur during birth, as the result of a disease, or in South Dakota car or truck accidents, as the result of extreme force on vulnerable parts of the human body.

The most common cause of paralysis in South Dakota car or truck accidents is actually pretty straightforward. The violent collisions that are standard in these wrecks, such as when a tractor-trailer truck barrels into the back of a stopped car or two SUVs hit head-on, can separate your spine or brain from the rest of your body.

The spine and brain are two of the most integral elements in a fully functioning body. When these connections are severed, the movement signals that start in the brain and travel through the spine cannot connect, leaving your arms and legs without the communication channels they need to act.

The treatment of paralysis, however, is not so simple. Paralysis resulting from a car accident is most likely permanent, meaning that doctors can do little to help your condition. Medical professionals may be able to make improvements with physical therapy, but most care will focus on simply making the injured person more comfortable.

An individual living with paralysis can still live a fulfilling life. However, it is a dramatic change for an adult who grew up with a functioning body, and there can be significant costs associated with it. You may have to contend not only with medical bills and expensive ongoing care, but also the reality of lost wages and the inability to work.

Life can seem particularly unfair if the wreck that caused your paralysis was the fault of a negligent driver, who may have been drunk or distracted. Fortunately, you have a legal right to recover damages.

Call the South Dakota personal injury attorneys of Zimmer, Duncan & Cole today at (877) 789-5238 to schedule a free consultation about your case. We have offices in Parker and Sioux Falls, SD.

Poaching the 4th Amendment Right to Privacy

Mon, 11 Apr 2011 08:00:00 EST

This week, we look at how far the right to privacy extends into our business affairs (which isn't very far). And in the process, we learn about the unique profession of taxidermy.

* * *

This week's opinion, State v. William C. Klager, Jr. (2011 S.D. 12), begins and ends in the driveway of Mr. Klager's home in Stratford, South Dakota (pop. 72), a few miles southeast of Aberdeen. Mr. Klager runs a taxidermy shop out of his home. In March 2009, a Game, Fish, and Parks agent arrived at his workshop for an unannounced inspection of his records, and Mr. Klager refused. The officer left and later cited him for refusing to disclose his records. He broke no other law.

This simple scenario resulted in a whopping forty-five page opinion, and it created something we haven't seen yet this year: a 3 to 2 split of the five Justices.

* * *

I know nothing about the skill and practice it requires to become a taxidermist, but it can't be easy getting those glass eyes to appear to follow you around the room, wherever you stand.

On the other hand, obtaining a taxidermy license is simple. It takes only a $15 annual fee and a short application to the Department of Game, Fish and Parks.

Each year, a licensed taxidermist is given a summary of the handful of rules and regulations to follow. Taxidermists must immediately tag each bird, animal, or fish with the name of the customer and date it was received, and they must keep written records with the same information from the tags, plus the owner's name and address. State law requires that these records "shall be made available for inspection by any representative of the Department of Game, Fish and Parks during normal business hours."

The public really doesn't have an interest in regulating taxidermy itself. Instead, the reason we care about what happens in a taxidermy shop is to protect our state's wildlife from poaching and overbagging. These record-keeping requirements, along with unannounced inspections discourage taxidermists from assisting poachers turn their contraband into trophies.

As the opinion tells us, Mr. Klager is not opposed to these rules. In fact, he recently served as the vice-president of the S.D. Taxidermist's Association, during which time he helped rewrite the taxidermy laws and lobbied the legislature for more frequent inspections.

At first blush, it's hard to understand Mr. Klager's refusal to cooperate with these rules. The time and money involved with an appeal like this far outweigh the actual cost of the sentence (a $151 fine and a suspended jail sentence of 30 days). So it's clear that this case is about the principle of the matter, rather than anything else.

But what is that principle? It depends on who you ask here. For Mr. Klager, the principle of the matter appears to be bringing attention to the lax regulation of taxidermists. Only 100 inspections are performed each year, even though there are over 200 taxidermists. And Mr. Klager proved the inadequacy of the law: for $151, anybody can refuse an inspection.

For the majority of three, the case revolved around a well-established exception to the 4th Amendment. The right to privacy is substantially lowered in "closely regulated businesses", especially those which have a long history of regulation in order to protect the public. In those types of businesses, we allow the government a lot of leeway to drop in and check on things (think "gun shops"). The majority pointed out that taxidermists have been regulated since 1925, and concluded that taxidermists have no expectation of privacy in their business records.

In contrast, the two dissenting justices were concerned with the dangerous precedent about to be set here. In particular, they were concerned about the right to privacy for those of us who work out of our homes. In addition, they questioned whether taxidermy is as closely regulated as the majority says, especially with the haphazard and infrequent method of inspections used by Game, Fish and Parks.
Who's the winner here? Hands down, it's Mr. Klager...because the public now knows a lot more about the importance of taxidermist inspections.
Now it's our new Governor's turn to have Game, Fish & Parks do something about it.

* * *

You can find this opinion and others on the state Supreme Court website, at www.sdjudicial.com.

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Post-Traumatic Stress Disorder (PTSD) Treatment After SD Car Accident

Thu, 07 Apr 2011 08:00:00 EST

Post-traumatic stress disorder (PTSD) can easily set in after a catastrophic South Dakota car accident. If this has happened to you or a loved one, we strongly urge that you get professional help and contact a lawyer to attempt to recover damages for related costs.

PTSD, the psychological condition well known for its effect on soldiers who have returned from battle, is a natural extension of any trauma that throws someone's world into chaos. PTSD is the result of feeling as though your safety can never be guaranteed or taken for granted again.

PTSD can set in after a wide range of traumatic events. These include, but are certainly not limited to:

Plane crashes
Car accidents
Natural disasters
Sudden death of a loved one
Kidnapping
Sexual abuse

For those suffering from PTSD after a car accident, the experience of worry, fear, and depression can seem overwhelming. The accident may play continually in your head, and it may feel like the world will never be safe and secure again. These experiences can have serious consequences in your professional and personal lives.

However, the good news is that PTSD can be treated. There is no way that you can ever forget about the initial event, as it will likely stick with you forever, but you can integrate the experience. With time and treatment, the fear and overall effect will lessen, allowing you to get on with your life.

For more information about a personal injury lawsuit to cover the ongoing costs of a car accident, call the South Dakota car accident attorneys of Zimmer, Duncan & Cole to schedule a free consultation about your legal rights in these cases. You can call us anytime at (877) 789-5238.

Before the Walls Come Tumbling Down

Tue, 05 Apr 2011 08:00:00 EST

Most of us (including the attorney writing this column) never read our insurance policies. For starters, the small print and the sheer volume of the verbiage make it an uninviting task. It also seems like those policies contain a lot of double negatives, which tends to make it not hard to stay not oriented when deciphering them. (It took me five minutes to craft that double negative, by which I mean "it's easy to get lost".)

To complicate matters, few of the policy provisos have much significance to us when we read them in a vacuum. It's difficult to interpret them without a specific circumstance fresh in our minds. Moreover, since the use of language is not a perfect science, our interpretation may not be what was intended by the insurer.

Our courts understand all of these problems. They know that we don't read our insurance policies. They also know we don't have any input into drafting them. And they know that the policies are written by a team of lawyers who are paid to be clever and vague.

As a result, our courts have adopted special rules about how they "read" insurance policies when there is a question about coverage.

One rule is to interpret policy exclusions as narrowly as possible. Another is called the rule of liberal construction. If an insurance policy's provisions are ambiguous (if they can be interpreted in more than one way), the court uses an interpretation that favors the insured, not the insurance company. This rule discourages clever drafting and encourages clearer policies.

But in the same way that it's impossible for us read a policy while imagining every risk we might face, it's just as difficult for the insurer to write that policy. So ambiguities always pop up.

That's what we find in our state Supreme Court's opinion for this week, Zoo Properties, LLP v. Midwest Family Mutual Insurance (2011 S.D. 11).

Zoo Properties is the owner of "The Zoo Bar," which was located near Northern State's campus in Aberdeen.

In 2009, the bar owners noticed cracking and sagging in their ceiling. They filed a claim with their property insurer and then investigated the cracking and sagging. They learned from an engineer that although the building hadn't collapsed yet, that's what was almost certain to happen soon.

Midwest Family denied the claim because the policy language covered a building "collapse" but excluded "cracking". Specifically, the insurance provision said this: "We will pay for loss or damage caused by or resulting from risks of direct physical loss involving collapse of a building or any part of a building....Collapse does not include settling, cracking, shrinkage, bulging or expansion."

The trial court agreed with Midwest Family Insurance's interpretation, and The Zoo Bar appealed that decision.

Our Court explained that much litigation has unfolded in other states about the ambiguous term "collapse". There are three schools of thought as to what that term means in an insurance policy.

Some courts follow a very literal interpretation, and find there is a collapse only when the building actually falls down. Other courts are at the other end of the spectrum, and find collapse to mean a "substantial impairment" to the structure, even if it is still standing.

The third view is somewhere in between. This last group of courts permits an insurance claim when an existing building is faced with an imminent or impending collapse. In other words, the owner can file a claim before the building collapses, as long as an engineer agrees that a collapse is coming soon.

The Court noted that this view doesn't require a strained reading of the policy language. It also takes away the incentive for policyholders to take the risk of waiting for their buildings to actually collapse.

The Court adopted this sensible, middle-of-the-road interpretation, which means that The Zoo Bar's claim will be permitted. And, like many results, this decision is a compromise somewhere in the middle.

* * *

You can find this opinion and others on the state Supreme Court website, at www.sdjudicial.com.

* * *

Have a question about the law? In this column, I explain recent court cases and answer your legal questions in plain English. Send an email to dan@zdclaw.com or a letter to "Less Legalese, Please," 5000 S. Broadband Lane, Suite 107, Sioux Falls, SD 57108. I will try to answer as many as I can with as little "legal-ese" as possible.

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Permanent Scarring from South Dakota Car Wrecks

Mon, 04 Apr 2011 08:00:00 EST

Scarring and disfigurement are some of the most difficult injuries that anyone can sustain in a South Dakota car accident. Scarring and disfigurement stick with you for the rest of your life, serving as a constant reminder of your wreck every time you look in the mirror.

Scarring and disfigurement in South Dakota car wrecks can happen as a result of any number of events. These include:

Going through the windshield;
Sliding on the pavement;
Dangerous chemicals;
Car fires;
Airbag deployment;
And more.

If your car crash was caused by a negligent driver who may have been drunk, drowsy, or distracted when behind the wheel, the long-term effects of your scarring or disfigurement can be that much harder to accept. You have to pay for the consequences of someone else's poor choices, even if you did nothing wrong.

Fortunately, state personal injury laws afford you the legal right to recover damages from these negligent drivers. The financial compensation that you may be able to receive as a result can cover your medical bills, ongoing care or physical therapy, missed time at work, permanent losses, and more.

However, the insurance company probably won't just write you a check for the amount you deserve. Instead, it will fight you for every penny, using every trick and tactic in the book to leave you with as little as possible. You need an aggressive South Dakota car accident attorney to protect your best interests.

Call the South Dakota car accident lawyers of Zimmer, Duncan & Cole today at (877) 789-5238 to learn more about legal representation in these cases. We have helped many residents of South Dakota in similar situations, and can give you the guidance and protection that you need.

Broken bones caused by SD car wrecks can have long-term effects.

Sun, 03 Apr 2011 08:00:00 EST

Broken bones are some of the most common and painful injuries sustained in South Dakota car wrecks. When they are severe, or you break a bone in your spine or skull, the consequences can be both scary and life-threatening.

There are many possible bones that can be broken in South Dakota car accidents. These include:

Wrist
Arm
Leg
Collarbone
Hip
Skull
Back

Each of these injuries requires extensive medical treatment and ongoing care, the cost of which can pile up quickly. If the wreck that caused your injury occurred because of a negligent driver who may have been drunk or distracted, then you may be eligible to recover damages. The financial compensation that you may be able to receive can help cover such things as:

Medical costs
Ongoing care
Home renovations
Missed time at work
Pain and emotional suffering

Call the South Dakota car accident attorneys of Zimmer, Duncan & Cole to learn more about your legal rights. You can request a free consultation with one of our experienced lawyers by calling toll free at (877) 789-5238.

Teen Drivers Often Cause South Dakota Car Accidents

Tue, 29 Mar 2011 08:00:00 EST

South Dakota car accidents can happen at any time. Dangerous drivers often come out of nowhere, causing serious wrecks that can have devastating consequences for you and your family members.

However, there are some drivers who may be more dangerous than others. For example, elderly drivers are prone to accidents, due to the deterioration of their health and senses. Another example is teen drivers, who need time to perfect their skills.

Teen drivers simply do not have the experience behind the wheel to drive as safely as others. To make matters worse, they are especially susceptible to a number of unsafe behaviors, such as:

Speeding;
Aggressive driving;
Distracted driving;
Drunk driving;
Inattentive driving;
And more.

All of these actions can easily cause South Dakota car wrecks. You or your family members may sustain broken bones, internal injuries, back and neck injuries, or head and brain injuries as a result. Such injuries can be difficult to reconcile, especially if caused by inexperienced or distracted drivers.

If you or a loved one has been injured by a negligent teen driver, you may be eligible to recover damages from the wreck. This financial compensation could cover your medical bills, physical therapy costs, missed time at work, and even instances of pain or emotional suffering.

However, the insurance companies won't just cut you a check. Instead, they will try to make your life miserable, using every trick and tactic in the book in order to make you accept a settlement that is less than you actually deserve.

Don't feel powerless when facing an insurance company. Call the South Dakota car accident lawyers of Zimmer, Duncan & Cole at (877) 789-5238 for experienced and aggressive legal representation. Schedule your free consultation today.

When Criminals Help Defend Our Freedom

Mon, 28 Mar 2011 08:00:00 EST

In state Supreme Court news this week, it released its second criminal law opinion of the year, State v. Robert Thomas Johnson (2011 S.D. 10). This case is at the cross-roads of two ideals: superb, vigilant police work and the liberty to go about our business, free from unnecessary police interaction.

* * *

Robert Johnson appealed his conviction for robbing a video lottery casino in Sioux Falls in July 2009. He argued a violation of his 4th Amendment rights.

During the robbery, an employee at Deuces Casino activated a "holdup alarm", which automatically notified law enforcement that a robbery was in progress. The suspect fled on foot. Officer Trainor was already patrolling nearby. His experience (and some common sense) told him that the suspect likely had a car waiting nearby, and that the most likely escape route would be through quiet, residential streets.
Sure enough, within two minutes of the initial alarm, he spotted a lone vehicle a few blocks from the casino. He stopped the car, questioned the occupants, and determined the pair seemed suspicious. He called for back-up, searched the car, and found a bag of money and a pellet gun.

Johnson and his brother were arrested for their role in the robbery. On appeal, Johnson argued that the traffic stop was outside of the scope of what the 4th Amendment allows law enforcement to do.
This is the point of our story where some of my readers will roll their eyes and think, "Yeah, right, a guilty man is trying to get off on a technicality."

That's what it looks like, of course. But we need to keep in mind that we all benefit each time anyone asserts a 4th Amendment defense. And these rights are not a mere technicality. The 4th Amendment keeps us from living in a police state like Gadhafi's Libya or Mubarak's Egypt.

The 4th Amendment protects us from "unreasonable" stops and searches in our cars and homes. This protection also extends to privacy in our emails, our phone calls, and countless aspects of our private lives.

In our cars, for example, we know and expect that an officer can stop us for traffic violations, for expired tags, or if our vehicle matches a description of one used in a crime. But in most other cases, we're free to drive on public streets without the fear of police harassment.

Although this liberty is important to us, there aren't many ways to "enforce" it. In fact, it's rather difficult to come up with ways we can rein in police officers while at the same time paying them to keep us as safe as possible.

One of the ways we enforce the 4th Amendment is by tossing out criminal cases that are the "fruit" of unreasonable police conduct. This means that even if we are in the middle of committing a crime, our car can't be stopped unless the officer knows of a good reason to stop our particular car.

Here, Mr. Johnson argued that he was stopped merely for being in the wrong place at the wrong time. (There have been other cases where defendants were stopped simply for walking around in an area known for drug deals...which the courts have said clearly goes too far.)

Here, our court rejected Mr. Johnson's arguments. He was not stopped for being in the wrong place at the wrong time...he was stopped because he was on the most probable escape route immediately after a robbery, and at a time when there were no other cars on the street.

The court said this was not a stop based on "idle curiosity", but, instead, on specific facts which permitted the officer to make this brief intrusion into the privacy of the car's occupants.

It's important to remember, too, that the essence of the the 4th Amendment is not that "all" searches and stops are prohibited...only those which are unreasonable. This one was reasonable.

* * *

You can find the full opinion on the state Supreme Court website, at www.sdjudicial.com.

* * *

Injuries Caused by South Dakota Aggressive Driving Accidents

Mon, 28 Mar 2011 08:00:00 EST

Aggressive driving takes many forms. Drivers may be speeding, following other vehicles too closely, swerving into other lanes, laying on the horn, or cutting off other vehicles.

Aggressive driving causes South Dakota truck accidents. These wrecks often have disastrous consequences for those involved, leading to catastrophic injuries or even death.

Some of the injuries you may incur if involved in a crash with an aggressive driver include:

Broken bones
Severe burns or lacerations
Spinal cord injuries
Neck injuries
Head or brain injuries
Death

As anyone who has ever been injured in a wreck can tell you, the costs of any of these injuries can pile up quickly. You may be on the hook for:

Medical bills
Ongoing care
Physical therapy
Funeral expenses
And more

These costs may be even tougher to take on if you have to miss work due to your injuries. Fortunately, you also have the legal right to seek compensation for your injuries. Call the South Dakota truck accident lawyers of Zimmer, Duncan & Cole today at (877) 789-5238 to learn more.

Call us to schedule a free consultation with one of our experienced South Dakota truck accident attorneys at a time that is convenient for you.

Breaking the Ties that Bind: Alienation of Affections

Mon, 21 Mar 2011 08:00:00 EST

This week, a couple of readers asked me to write about "that one lawsuit you file when someone steals your spouse." The claim is called "alienation of affections". We trace its roots to ancient property law.

* * *

For countless generations, women and children were viewed as the "property" of a man. They were on par with horses, plows, furniture, and grain. When a neighbor or stranger interfered with them, he was liable for money damages. Thus, the law once stated that a wife's body belonged to the husband and anyone who trespassed upon the husband's property by seducing his wife was liable for damages.
Over the years, most states have abolished this type of lawsuit. Many believed this type of claim had outlived its usefulness, because women were no longer considered property.
A handful of states clung to the old law, but found a new rationale for supporting it. These nine states believe (sensibly, perhaps) that these suits help preserve marriages by deterring wrongdoers.
To illustrate how this type of lawsuit works, let's look at an example.

In Veeder v. Kennedy, a Watertown banker (Mr. Myles Kennedy) promoted one of his employees (Julie Veeder), who was happily married (to Michael Veeder)

Mr. Kennedy and Julie began working closely together and developed a friendship. After three years, this friendship evolved into an illicit, romantic relationship, which was soon followed by Mr. and Mrs. Veeder's divorce.

In return, Mr. Veeder sued Mr. Kennedy for alienating the affections of his wife.
The evidence at trial showed that Mr. and Mrs. Veeder had a loving marriage before Mr. Kennedy came along. Julie showed Mr. Veeder affection "all the time" and the last thing each would say to the other when retiring for the night was, "I love you."

This evidence matched testimony of family and friends. The evidence at trial also indicated that Mr. Kennedy's existing marriage was itself the product of a previous affair with a then-married employee. In other words, the jury could infer that Mr. Kennedy had similar motives here.

Based on all of this, the jury concluded that Mr. Kennedy had indeed alienated Julie's affections for her husband.
For the loss of those affections, the jury awarded Mr. Veeder $265,000.

* * *

South Dakota allows a similar lawsuit for interference in another important relationship: the bonds and affection between parent and child. Similarly, this law traces its roots to the days when children were viewed as property, and it has evolved to protect more "modern" goals. Although kids aren't property, the parent-child relationship itself is still worth protecting.
This type of case is even rarer than those involving the alienation of a spouse's affections. Very few states permit this claim, and I could find only one case of its kind from our own state supreme court.
In Hershey v. Hershey, a man sued his ex-wife for destroying the relationship he had with his son. Following their divorce, Mrs. Hershey disappeared, remarried, and registered the son for school using her new husband's last name. Mr. Hershey was unable to find his ex-wife and son for fourteen years. They had no contact until after his graduation from high school. Eventually, Mrs. Hershey reappeared: when she brought a lawsuit against her ex-husband for fourteen years of back child support!

The Court frowned on Mrs. Hershey's claims, but it said it would allow Mr. Hershey to bring a lawsuit against his ex-wife to recover damages for alienating his son's affections.

The facts in this case were extreme: sabotaging and eliminating all contact between father and son for over a decade. However, the Court indicated it would also allow damages in less severe situations, with the hope that these suits would serve as "a useful deterrent to lawless conduct."

The idea of "deterrence" is important in the law. There are some things that money can't buy, including a healthy marriage or a loving child. But as long as juries are standing by to award damages when we make mistakes, all of us have an incentive to do whatever we can to avoid making those mistakes in the first place.

* * *

The Case of the Crafty Grain Thief

Mon, 21 Mar 2011 08:00:00 EST

This week's South Dakota Supreme Court case is about a very clever grain thief in Milbank and his victim's attempts to recover money for its losses. The case is called WestCon Cooperative v. Lynn Pew, Lynette Pew, and LaBolt Farmers Grain Company (2011 S.D. 9).

* * *

Our story begins in 2000 when Lynn Pew started working as the lead grain hauler for the Harvest States elevator in Milbank. He would use his own truck to make deliveries for the elevator each day.

After three years, Harvest States sold the elevator to WestCon, and Mr. Pew lost his job as a grain hauler. He soon discovered an easy way to make a lot more money using the same set of skills.

Once a week, at about 5:30 am, he would pull up to the gravity chute of one of the WestCon silos. He was very skilled at loading grain, and he could fill his 950 bushel trailer in minutes. He would then sell the grain at nearby facilities in his own name. The majority of it was sold ten miles down the road, to the elevator in LaBolt, South Dakota (pop. 86).

In two years, Mr. Pew stole around 100 loads, containing 89,000 bushels, and worth about $726,000.

For the first couple of months, the thefts went undetected. Grain naturally shrinks and expands with changes in humidity and temperature. The fluctuations may be as much as 2 to 3% by volume.

But as the size of the thefts increased, the elevator realized shrinkage was not the problem. They next suspected the inventory discrepancies were caused by incorrectly recording the loads delivered to the elevator (either accidentally or intentionally).

Soon, the elevator suspected one of its employees was stealing the grain. WestCon began periodically changing the locks on its silos, first monthly, and then weekly. Yet still the thefts continued.

The locks did not stop Mr. Pew because WestCon's employees frequently left them unlocked. And, on those occasions when they were locked, Mr. Pew discovered he could leave the locks intact and remove the entire locking mechanism with a wrench, and then replace it afterward.

Finally, the elevator requested that the Milbank police conduct surveillance with still cameras. They soon discovered their thief in an early-morning photograph.

Mr. Pew was arrested, charged in federal court, and pled guilty to theft. He is serving time in the Duluth federal prison camp.

The WestCon elevator then turned its efforts to recovering money for its losses. Specifically, WestCon set its sights on the LaBolt Farmers Grain Company, where Mr. Pew had sold over half of his $726,000 in contraband.

WestCon sued LaBolt Grain (along with Mr. and Mrs. Pew) for committing "conversion".

Under South Dakota law, "conversion" is committed by exercising control over someone else's property without their permission, and in such a way that shuts out him out from "owning" his property. (This includes the act of receiving stolen property.)

At first glance, it may seem odd that LaBolt Grain would bear any responsibility here. Mr. Pew was the one committing the crime. LaBolt Grain merely bought the grain, and LaBolt Grain had no way of knowing to whom the grain belonged at the time of purchases.

But under the law, LaBolt still bears financial responsibility. Although the Court did not elaborate, it appears our law is structured this way to protect victims of theft, and to encourage vigilance by those who purchase goods that are easily or often stolen.

On appeal, LaBolt Grain argued that WestCon didn't do enough to prevent the thefts during the two year period, and, therefore that WestCon's damages should be limited. Although the justices were not unanimous on this issue, the majority rejected the argument.

Finally, the Court addressed the issue of how to divide up the legal (and financial) responsibility between Mr. and Mrs. Pew and LaBolt Grain. The case was sent back to the trial court so a jury can determine their relative percentages of fault for the conversion.

In a nutshell, this case shows us the wisdom in the maxim, "Buyer, beware!"

You can find the full opinion on the state Supreme Court website, at www.sdjudicial.com.

* * *

Have a question about the law? Send an email to dan@zdclaw.com or a letter to "Less Legalese, Please," 5000 S. Broadband Lane, Suite 107, Sioux Falls, SD 57108. I will try to answer as many as I can with as little "legal-ese" as possible.

* * *

Negligent Drivers Cause Many South Dakota Truck Accidents and Resulting Injuries

Fri, 11 Mar 2011 08:00:00 EST

South Dakota truck accidents happen every day around the state. These wrecks can be very dangerous for those involved, resulting in serious injuries and even loss of life for you and your loved ones.

Tractor-trailer trucks, driven by drivers who may not be aware or careful, can cause serious injuries when wrecks occur. In fact, 1 out of every 8 fatal accidents in the US each year is caused by a tractor-trailer truck.

There are many possible factors in South Dakota truck accidents. Some of these are natural or unavoidable, such as:

Bad weather
Bad road conditions
Sudden, oncoming dangers
And more

However, many other causes of South Dakota truck accidents are a result of negligent truck operators. These accidents may happen as a result of:

Aggressive driving
Drunk driving
Distracted driving
And more

South Dakota law gives those injured by a negligent truck driver the opportunity to recover damages after a wreck that was not their fault. This financial compensation, which can come in a settlement or jury verdict, may cover your medical bills, ongoing care, missed time at work and much more.

To learn about your legal rights, call the South Dakota truck accident lawyers of Zimmer, Duncan & Cole today at (877) 789-5238 to schedule a free, no obligation consultation about your case.

The Symptoms of Whiplash May Take a While to Develop After a South Dakota Rear End Car Accident

Thu, 10 Mar 2011 08:00:00 EST

With more than 2.5 million rear end accidents happening in the US each year, this type of South Dakota car accident is the most common type. Rear end collisions are also one of the most dangerous.

Rear end collisions can happen as a result of numerous factors. They may occur because of bad weather, confusing intersections, defective brakes, or most commonly of all, negligent drivers. These drivers, who may be following too closely or driving too fast, cause many of these crashes.

There are many possible injuries, including broken bones and internal bleeding, that can occur in South Dakota rear end wrecks. However, the most common and dangerous injury that may occur is whiplash, which can have serious and long-standing effects on your back and neck.

The tricky thing about whiplash injuries is that they may take a while to develop. You may not start feeling pain or limitations until weeks or even months after your South Dakota rear end accident.

By this point, especially if you have already signed a settlement with the insurance companies, it may be too late to receive the financial compensation you truly deserve. To avoid this common and unfortunate problem, follow the two steps below:

Get medical treatment.

It is important that you always see a doctor after a rear end car wreck, even if it was minor in nature. This will ensure you are checked out properly, and have records for future claims.

Contact a lawyer.

You maybe able to recover damages for your costs after a rear end wreck that was caused by another driver. However, the insurance companies will fight against you each step of the way, ensuring you receive as little financial compensation as possible.

For more information about your legal rights in these cases, call the South Dakota car accident lawyers of Zimmer, Duncan & Cole today at (877) 789-5238. Request a free consultation with one of our experienced attorneys, and learn how to avoid the mistakes many other people make after a wreck.

Be Wary of Insurance Companies after Your South Dakota Car Accident

Wed, 02 Mar 2011 08:00:00 EST

After being in a South Dakota car accident caused by a negligent driver, it is not uncommon for people to hear quickly from the other driver's insurance company, calling to check up on the details of the accident and your health or injuries.

It is also not uncommon for these insurance companies to act friendly and caring on the phone. In fact, they may go as far as to say that they are looking out for your best interests, and just want a speedy and fair conclusion to these unfortunate circumstances.

If you feel wary or suspicious of this behavior, you have good cause. The truth of the matter is that the insurance companies do not care how you are feeling. They only care about the severity of your injuries and if there is anything about your actions or behavior that may swing the case in their favor.

Insurance companies are based on the principle of risk aversion. When insurance bills come due, all the insurance companies care about is getting their money. When a South Dakota car wreck occurs, the insurance companies only care about paying out as little of this money as possible.

In fact, the insurance companies will literally do whatever it takes to ensure that you are left with as little as possible after a South Dakota car crash that was not your fault. They will even lie and cheat to turn factors in their favor, putting you at a severe disadvantage in getting a settlement or jury verdict.

The insurance companies are only acting like your best friend because they think it is the best strategy to get the upper hand. Your job is to play the game as well as or even better than the insurance adjusters, holding out for the financial compensation that you truly deserve.

It is important that you do not believe the hype that they try to feed you. Politely refuse all contact with the insurance companies, and never discuss the details of the accident with an adjuster. Whatever you do, it is absolutely crucial that you NEVER sign anything from the insurance company.

For more information about avoiding the mistakes that many people make when dealing with the insurance companies, call the South Dakota car accident attorneys of Zimmer, Duncan & Cole today at (877) 789-5238. We will help you fight against the insurance companies and earn the financial compensation that you truly deserve.

Explaining Insurance in Plain English

Mon, 28 Feb 2011 08:00:00 EST

As an attorney, I know that legal jargon can often be confusing to people outside of the profession.

Our state’s Supreme Court issues around 125 opinions every year, on topics of all kinds. My goal is to explain many of them, and other legal matters, in plain English.

So far this year, the Court has issued two opinions, and both of them involve insurance.

Stuckey v. Sturgis Pizza Ranch (2011 S.D. 1).

The first case of this new year involves an injury at work. In 2005, an employee at the Sturgis Pizza Ranch got her arm caught in a pizza dough machine. Her hand was crushed.

The employer agreed that accident has caused a permanent and total disability, and that she is unable to return to work. The injury causes constant pain. The injured worker then qualifies for replacement income, which is based on her income before the accident.

Normally, these income benefits are paid monthly by the employer’s insurance company until retirement age. In some cases, an employee can request a “lump sum” award, which would pay out all of the benefits at once. This option is available when the employee has a unique, immediate financial need, or if the employee would be better off investing the “lump sum” and using the investment income to replace her lost wages.

Here, the Court determined that the employee does not have a special need, and so she does not qualify for a lump sum award. The Court also approved a medical care plan that is expected to cost the employer’s insurance company $2.9 million. The insurance company doesn’t have to pay that amount all at once, though. It will continue to have the right to review those future medical expenses, and challenge them if they are no longer medically necessary.

This case highlights a big difference between a work-comp case and a personal injury case. The reason a jury is asked for such large awards in personal injury cases is because that money has to replace lost income and pay for medical bills forever.

There isn’t any insurance company standing by to pay a monthly salary for lost income, or to pay for medical bills as they come due. Instead, every award in a personal injury case is essentially a “lump sum” award.

State Farm v. Bottger, Kosinski, and AMCO Insurance (2011 S.D. 2)

The second case of the year involves the odd situation where an insurance company sues the victim of a car accident. Normally, we don’t see the insurance companies named as parties in a car accident case. In fact, the attorneys are not allowed to discuss insurance during the trial.

One exception is when there are coverage questions. In those situations, an insurance company can file a lawsuit asking the court to “declare” whether or not there is coverage. These types of suits are called “declaratory” actions.

The case of State Farm involves an unusual car accident in Union County. After a high school “drinking party,” a group of students left together in a car. Although they designated a driver, they soon discovered the driver is just as drunk as his passengers. The car crashes into a steep ditch and comes to rest in a cornfield.

All of the passengers exited the car, unharmed. The driver then tried to move the car out of the ditch, even though he was told not to. He accidentally runs over one of the passengers, pinning her under the vehicle and injuring her.

Since the driver didn’t own the car, the question is, “Whose insurance will cover his carelessness?”

To resolve this question, State Farm then sued the injured passenger, the driver, and the driver’s mother’s insurance company.

The car’s owner had insurance that covered others who drove the car with permission. However, the driver was told to get out, so he didn’t have actual permission.

So the first policy doesn’t cover him. The driver’s mother had her own insurance that also covered her family members when they drive other vehicles. However, the coverage is available only if those family members reasonably believed they had permission to drive the car. The case will be sent back to the trial court to find out if the driver reasonably believed he had permission to drive the vehicle out of the ditch, even though he was told to get out of the car (and out of the driver’s seat).

This case highlights the need for uninsured and under-insured motorist coverage, which can be added as part of your own policy. These provisions kick in when the other driver is under-insured or uninsured. This coverage is inexpensive and worth every penny.

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You can find the full opinions on the state Supreme Court Web site, at www.sdjudicial.com.

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If you have a question about the law or about a recent court case, please, e-mail me at dan@zdclaw.com or send a letter to “Less Legalese, Please,” 5000 S. Broadband Lane, Suite 107, Sioux Falls, SD 57108.

The Messy Business of Livestock Confinements

Mon, 28 Feb 2011 08:00:00 EST

Livestock confinements often create contentious disagreements between producers and their neighbors. And, it seems that county commissioners are always the ones stuck in the middle of those disputes. That’s what happened in this week’s state Supreme Court case, Grant County Concerned Citizens v. Grant County (2011 S.D. 5).

Like most counties, Grant County has a zoning ordinance that spells out how close a feedlot or livestock confinement can be to its neighbors. The distance increases with the size of the operation.

Those zoning ordinances are subject to change, by a majority vote of the county commissioners.

In all counties, the citizens are allowed to propose changes for the commission to consider. The process is similar to getting an initiative on the ballot. A petition must be circulated and signed by 20 percent of the landowners in the zoning district. Then, the proposed change is submitted to the county commission for a vote.

If the county commission votes “yes”, opponents of the change can circulate their own petitions and put the issue to a county-wide vote. However, if the county commission votes “no”, that is the end of the road. The issue cannot be further submitted for a county-wide vote; and that was the question the Court resolved in the case it released this week.

In Grant County Concerned Citizens, the landowners and neighbors tried submitting an amendment to the county commission that would increase the minimum distance between new livestock operations and their neighbors.

However, the county commission voted “no” on the amendment, and left the ordinance the way it was.

The supporters of this amendment then tried to submit the amendment to a county-wide vote, via the referendum process. (This is the county’s version of the process used last fall, when opponents of the Legislature’s smoking ban gathered signatures to put the issue to a state-wide vote.)

The Court said this zoning issue could not be submitted for a county-wide vote. The Court reasoned that since the commission didn’t change the existing law, that was the end of the road. In other words, if the law is left as it is, there was no change to the law which could be “referred” to the voters in a county-wide referendum.

This result makes sense, although it confirms how difficult it is for county residents to change county ordinances by popular vote. Within a city, and at the state level, the citizens have the power to circulate petitions and submit laws directly to a public vote. However, this right does not exist at the county level.

You can find the full opinion on the state Supreme Court website, at www.sdjudicial.com.

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It’s February, which means the Legislature is in full swing, and the primary topic of conversation is the budget. One issue that was resolved this week was the budget for the Unified Judicial System. This is the branch of the state government in charge of the funding for the clerks and judges.

Chief Justice David Gilbertson is the officer in charge of managing this budget, and he agreed this week to the Governor’s proposed 10% cut.

This comes at a difficult time for the court system, which is in the early stages of modernizing the filing system. The shortfall in court funding will be made up by increased court fees.

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On a sad note, last week marked the passing of two outstanding attorneys, Tom Foye from Rapid City, and his brother-in-law Jeremiah Murphy from Sioux Falls. Both were graduates of the Georgetown Law Center. Mr. Foye was considered the “Dean of Tax Law” in South Dakota, and Mr. Murphy served our State as lobbyist in Pierre for the last fifty-five years. The legal profession will miss them both.

I had the privilege of living around the corner from Mr. Murphy, and I will miss hearing his wonderful stories and his quick wit.

My sympathies go out to his family, and especially to his wife Mary Jean, who lost both a husband and a brother in the same week.

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Have a question about the law? Less Legalese, Please, explains recent court cases and answers your legal questions in plain English. Send an email to dan@zdclaw.com or a letter to “Less Legalese, Please,” 5000 S. Broadband Lane, Suite 107, Sioux Falls, SD 57108. I will try to answer as many as I can with as little “legal-ese” as possible.

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It Wasn't the Ice's Fault

Mon, 28 Feb 2011 08:00:00 EST

Lawsuits are difficult. They’re emotionally taxing. They’re expensive. They’re long. It often takes years to get the case ready for a jury. And, when you finally get there, it’s possible that those twelve strangers will vote the wrong way.

That’s what happened in this week’s state Supreme Court case, Cooper v. Rang, (2011 S.D. 6). It involves a lower-speed car accident that caused a great deal of damage.

In 2003, Bob Cooper, the plaintiff, was waiting at a stop sign in his minivan at the bottom of a hill in Lead. It was an icy, cold day. The roads were quite slippery.

Mallorie Rang, the other driver, approached the same intersection from behind him. She saw Mr. Cooper’s minivan waiting at the stop sign. Ms. Rang knew the roads were icy, but she didn’t start to brake until she was only fifteen or twenty feet away from Mr. Cooper. When she applied the brakes, she started to slide. She struck Mr. Cooper’s minivan from behind.

The collision caused serious injuries to Mr. Cooper’s neck, legs, and arms. His medical bills totaled almost $98,000.

The jury was told all of these facts, and it was instructed about the rules of the road. In South Dakota, all drivers have a duty to exercise “reasonable care under the circumstances” and keep a lookout for other users of the highway. Drivers must also maintain control of their vehicle so they can stop or avoid an accident within their range of vision.

The jury was also told that some accidents can be “excused” if they are caused by a surprise. Examples include the sudden and unexpected presence of ice, the blowout of a tire, the malfunction of brakes, or other mechanical failure.

The jury ruled in Ms. Rang’s favor. The Supreme Court overturned this verdict because the evidence clearly indicated Ms. Rang was not “surprised” by the ice. Instead, she admitted knew about the ice. She simply failed to adjust her driving. There was no other indication that Mr. Cooper caused this accident. In fact, he was doing exactly what he was supposed to be doing: waiting at a stop sign and looking for oncoming traffic. Therefore, the accident was Ms. Rang’s fault, and she is responsible for the harm that resulted from her carelessness.

This case reminds us that we can’t ever blame our car accidents on the road conditions. As long as we know about those conditions, it is our responsibility to adjust to them.

And, this decision is a big relief for Mr. Cooper, the injured victim. It’s been a very long wait for him to tell his story. The accident took place in 2003. Now, over eight years later, he gets another chance to explain it.

You can find the full opinion on the state Supreme Court website, at www.sdjudicial.com.

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Have a question about the law? In Less Legalese, Please, I explain recent court cases and answer your legal questions in plain English. Send an email to dan@zdclaw.com or a letter to “Less Legalese, Please,” 5000 S. Broadband Lane, Suite 107, Sioux Falls, SD 57108. I will try to answer as many as I can with as little “legal-ese” as possible.

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It's All About Timing

Mon, 28 Feb 2011 08:00:00 EST

This week we have one reader question about bill collectors and one court case about parole eligibility. They both involve issues of timing.

Our question is from Sylvia G. of Yankton, who asks: Are there any time limitations about how long a company can collect an old debt?

Thank you for sending me your question, Sylvia. The answer is yes, there are time limits.

These limits are called “statutes of limitations”. The rules are different in each state. In order to know which state’s rules to look at, we would look back to how and where the original debt was created.

Sometimes, such as in credit card agreements, the company will tell you which state law they want to apply to the charges you make to your card. (For example, if the credit card company is from Delaware, you may be required to abide by Delaware’s laws regarding the debts.)

On the other hand, if the original debt is something like a hospital bill or unpaid rent, we would probably look to the rules of the state where the hospital or your old apartment was located.

Some states have long windows and some are shorter. They range from three years on the low end (including North Carolina), to fifteen years on the high end (such as Rhode Island). South Dakota is in the middle with a six-year window for bad debts.

Once we know the length of the time window, we can then apply the rule to your situation. For example, if the debt was created in North Carolina, which has a three-year limit, that means that a debt collector from there has three years after the date of the debt (or the date of the first time you missed a payment) to start a lawsuit to collect that debt.

Keep in mind that these timing rules are different if the creditor already sued you and won a judgment. Those judgments take the place of the old debt, and they can often be collected upon for twenty years or more.

Debt collectors are also required to abide by the strict rules in the national Fair Debt Collection Act. If you suspect that someone is attempting to wrongly collect an old debt, or if you think their methods are suspicious, one simple solution is to tell this to the debt collector. Don’t accuse them of wrongdoing. Simply suggest that you have concerns, and that you want their response in writing. If you’re not satisfied with your answer, or if you’re not comfortable asking these questions, you may want to seek legal advice.

Remember that every case is unique. The information I give here is general, and it may not apply to your exact situation.

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In Supreme Court news, the seventh opinion of this year is called State v. Semrad, (2011 S.D. 7). It involves sentencing and parole issues in a criminal case.

Mr. Semrad was convicted of attempted sexual contact with a child under the age of sixteen in Codington County. He was sentenced to six years in the penitentiary.

At Mr. Semrad’s sentencing, the judge incorrectly explained the timeframe in which he would be eligible for parole. The judge mistakenly told the defendant that he would be eligible for parole after serving 35% of his six-year sentence (which is around two years). However, since this was Mr. Semrad’s second felony conviction, by law he would potentially be eligible for parole after he had served 60% of his sentence (which would be just over three and a half years).

The question on appeal was whether the judge’s first, incorrect estimate was binding. The Supreme Court said the judge’s 35% comment was only an estimate, and not part of his actual sentence. Therefore, Mr. Semrad would have to serve at least 60% of his sentence, as required by the parole statutes.

You can find the full opinion on the state Supreme Court website, at www.sdjudicial.com.

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Have a question about the law? In this weekly column, I explain recent court cases and answer your legal questions in plain English. Send an email to dan@zdclaw.com or a letter to “Less Legalese, Please,” 5000 S. Broadband Lane, Suite 107, Sioux Falls, SD 57108. I will try to answer as many as I can with as little “legal-ese” as possible.

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Symptoms of Back Injuries after South Dakota Car Wrecks

Fri, 25 Feb 2011 08:00:00 EST

Back injuries are a common result of serious South Dakota car accidents, whether because of the initial impact or whiplash. These injuries can also have a severe impact on the rest of your life, making everyday activities painful and difficult to complete.

Some of the symptoms of a back injury from a South Dakota car accident may include:

Back pain
Back stiffness
Back tenderness
Leg pain or numbness
Leg weakness
Decreased urination
Discolored urine
Inability to walk or move normally

If you experience any number of these symptoms, it does not necessarily mean that you have a back injury. However, it is always important to be checked by a doctor after a car wreck, especially if you believe that you have sustained a back injury as the result of someone else's negligence.

If you or a loved one has been injured as the result of a negligent driver, who may have been drunk, distracted, or drowsy, then you should contact a South Dakota car accident lawyer as soon as possible.

You may be eligible to recover damages after an accident, but the insurance companies will do anything they can to prevent you from receiving the financial compensation that you deserve. Having an experienced South Dakota car accident attorney on your side ensures that they can't push you around.

Call ZDC Law toll free at (877) 789-5238 to learn more about your legal rights today. We have offices in Sioux Falls and Parker to ensure that you can get to us easily.

Long-Term Effects of Spinal Cord Injury in South Dakota Car Accidents

Fri, 18 Feb 2011 08:00:00 EST

One of the worst injuries that can occur as a result of a South Dakota car accident with a negligent driver is a spinal cord injury. These injuries can produce devastating and long-term effects for your family.

The spinal cord is approximately 18 inches long, extending from the base of your brain to your waist. It runs down the middle of your back, carrying signals from your brain to your limbs. Your spinal cord is an integral part of muscle movement, controlling your:

Arms
Core
Hands
Fingers
Toes

When you sustain a spinal cord injury in a South Dakota car accident , such as a severed spinal cord, you may permanently lose use or feeling in these body parts. This makes common, everyday activities, such as walking or riding a bike, impossible.

Not only do these catastrophic injuries yield a great initial cost in medical bills, missed time at work, and physical therapy, but also long-term costs. Your family life can be forever altered, as everyone feels the impact of the pain and emotional suffering that can easily emerge.

If you or a loved one has suffered a spinal cord injury as a result of an accident with a negligent driver, then you may be eligible to recover damages after the fact. The best way to learn more is to contact a lawyer for a free consultation about the details of your case.

You can contact the South Dakota car accident lawyers of Zimmer, Duncan & Cole today at (877) 789-5238. We have been representing the people of South Dakota successfully since 1948, and can serve you from our two convenient locations in Sioux Falls and Parker.

Questions to Ask Your South Dakota Car Accident Attorney

Wed, 16 Feb 2011 08:00:00 EST

If you or a loved one has been injured in a South Dakota car accident that was caused by a negligent driver, then you may be eligible to recover damages from the wreck. This financial compensation could cover:

Medical bills
Permanent damage
Physical therapy
Ongoing care
Missed time at work
Pain or emotional suffering

However, even if your South Dakota car wreck was clearly not your fault, the insurance companies will try to discredit or dismiss you claim. The insurance companies only have one goal: to pay out as little as possible in financial compensation.

Insurance adjusters will act like your best friend, trying to convince you that they are looking out for your best interests. In reality, nothing could be further from the truth. They will turn on you the first chance they get, using every trick and tactic in the book to leave you with nothing.

The simple solution to receiving the financial compensation that you truly deserve after a South Dakota car crash is to hire an experienced lawyer. A South Dakota car accident attorney knows how to stand up to the insurance companies, and can fight to ensure that your side of the story is heard.

How do you find the right lawyer? Start by asking about:

Integrity
Experience
Past results
Rates

Ask the right questions, and you will find a great attorney for your case in no time. To request a free consultation about the details of your case, please don't hesitate to contact the South Dakota car accident lawyers of Zimmer, Duncan & Cole at (877) 789-5238 today.

Regulations of Driver Fatigue Help Prevent South Dakota Truck Accidents

Mon, 14 Feb 2011 08:00:00 EST

Driver fatigue poses a danger to all of those on the road. Drowsy truck drivers have slowed reaction times, a propensity to swerve off the road or veer into other lanes, and the ability to cause serious head-on or side-swipe collisions that lead to catastrophic injuries or loss of life for those involved.

Driver fatigue causes many South Dakota truck accidents. A recent study done by AAA shows that while 12 percent of all deadly crashes each year involve tractor-trailer trucks, 1 in 6 (16.5 percent) of these accidents involve at least one drowsy driver.

To try and reduce the number of serious South Dakota truck accidents caused by driver fatigue, there are numerous regulations. These laws stipulate that:

Drivers cannot go more than 60 hours in any 7-day period without taking at least 34 hours off.
Drivers cannot go for more than 14 consecutive hours without 10 hours off duty.
Drivers cannot operate their trucks unless they take an 8-hour period in their sleeper berths each 24-hour period, if they are equipped with one.

While many trucking companies adhere to these regulations, many others do not. The latter group requires their drivers to take on unrealistic schedules, getting behind the wheel when they are drowsy or overly fatigued. These drivers may cause serious South Dakota truck wrecks.

If you or a loved one has been injured in a South Dakota truck accident that was caused by a negligent driver, then you may be eligible to recover damages from the crash. This financial compensation may cover your medical bills, ongoing care, missed time at work, and much more.

Call the South Dakota truck accident attorneys of Zimmer, Duncan & Cole today at (877) 789-5238 to learn more about your legal rights and schedule a free consultation. We have offices in Sioux Falls and Parker, SD.

Hire a lawyer for your SD traumatic brain injury car accident case.

Sun, 06 Feb 2011 08:00:00 EST

If you or a family member has been injured after a negligent driver caused a South Dakota car wreck, then you may be eligible to recover damages from the crash. This financial compensation may cover your medical bills, instances of ongoing care or physical therapy, lost wages from missed time at work, and pain or emotional suffering.

However, the insurance companies often do not want to give you such aid. Insurance adjusters, who have the goal of making as much money as possible, will use every trick and tactic in the book to ensure that you get paid as little as possible after a South Dakota car crash.

You need a lawyer who can stand up for you. Call the South Dakota car accident attorneys of Zimmer, Duncan & Cole at (877) 789-5238 for more information about how to fight the insurance companies.

Traumatic Brain Injuries

One of the worst possible injuries that you can sustain in a catastrophic South Dakota car accident is a traumatic brain injury (TBI). These injuries, which occur as a result of a direct and blunt blow to the head, often lead to permanent and debilitating consequences.

The long-term prognosis of traumatic brain injuries (TBI) depends on numerous factors. These include the severity and location of the damage as well as the severity and duration of the resulting coma. Recovery, though never full, can take days, months, or even years.

Though the long-term prognosis of traumatic brain injuries (TBI) varies greatly in each individual case, the effect of TBI on your life and family is often the same. A TBI severely impairs a person's ability to interact and operate functionally in the world.

If you or a loved one has suffered a traumatic brain injury as the result of a car accident caused by a negligent driver, then call the South Dakota car accident lawyers of Zimmer, Duncan & Cole today at (877) 789-5238.

You can schedule your own free, no-obligation consultation with one of our expert attorneys today. We have offices in Sioux Falls and Parker, and also can come to you if you are unable to travel.

Business Disputes: Billboards and Video Lottery Licenses

Wed, 02 Feb 2011 08:00:00 EST

Both of the Supreme Court cases decided last week involved business issues, including a dispute over billboards, and a city council’s rejection of a video lottery license.

In both opinions, the Court takes a second look and “fixes” mistakes when the underlying evidence doesn’t match the result. The billboard case is one that I am working on, and I was glad to see the Court ruled in favor of my client.

M.G. Oil Company v. Rapid City, (2011 S.D. 3). The theme for this case seems to be, “When city councils go rogue.”

The M.G. Oil Company owns and operates several convenience stores and video lottery casinos in the Black Hills. It made plans to open an upscale casino in a new strip mall in Rapid City.

It then applied for a liquor license. (In South Dakota, video lottery machines can only operate within a business that sells alcohol.) This casino planned to sell fancy, high-priced beer in order to attract an upscale clientele.

The application sailed through the city review process, until hitting a dead end at the City Council.

In situations like this, the Council is required to consider the city’s development plan, its zoning rules, and its zoning districts, and then ask whether adding this new business would create an “undue concentration” of similar businesses.

The city attorney attempted to steer the Council in the right direction, and one of the council members tried to do the same.

But the herd was already on the run. The Council made up its own rules and denied the permit by a vote of 9 to 1.

The Court agreed with the lone member. In its deliberations, the Council didn’t discuss its city plan or zoning plan even once. The Council heard absolutely no testimony to support its conclusion that this new casino would cause blight, deterioration, and a decrease in property values. And, there was only one other casino in the area, which was not enough to create an “undue concentration”.

Based on this, the Court agreed that the City Council overstepped its bounds, and that M.G. Oil was entitled to a permit for its casino.

If anything, this case shows us the importance of city attorneys. They aren’t making this stuff up! City councils proceed at their own risk by ignoring their lawyers.

Buffalo Ridge Corporation v. Lamar Outdoor Advertising, (2011 S.D. 4). This opinion was a victory for my clients out at Buffalo Ridge. Lamar had refused to pay the new, increased rental rate for five billboard sites along Interstate 90, near Sioux Falls. Buffalo Ridge also had an option to purchase the billboards at their replacement cost. However, the parties could not agree on that replacement cost.

Buffalo Ridge filed a lawsuit to evict Lamar, to recover damages for back rent, and to determine the cost to replace the billboards.

At the first trial, the court agreed to evict Lamar. At the second trial, the court agreed with our valuation of what the billboards were worth. But the trial court denied my clients’ claim for damages and back rent.

After Lamar was told to leave, it had continued to occupy the billboards and rent them out to advertisers. This went on for almost three years. During that time, Lamar had collected an estimated $100,000 from advertisers, while paying nothing to Buffalo Ridge. My clients believed it was only fair that Lamar should pay for its use of their signs.

All five justices agreed, and in their opinion, they identified some errors that the trial court made when it awarded zero damages. The case will now be sent back to the trial court to determine the amount Buffalo Ridge is owed.

Although the Court spent twelve pages on its opinion, it really can be summed up in six words. The old adage, “You can’t get something for nothing,” is alive and well in our legal system.

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You can find the full opinions on the state Supreme Court Web site, at www.sdjudicial.com.

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Our state’s Supreme Court issues around 125 opinions every year, on topics of all kinds. Less Legalese, Please, explains each of them, and other legal matters, in plain English.

If you have a question about the law or about a recent court case, send an email to dan@zdclaw.com or send a letter to “Less Legalese, Please,” 5000 S. Broadband Lane, Suite 107, Sioux Falls, SD 57108.

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Daniel K. Brendtro is a trial attorney from Sioux Falls. His firm, Zimmer, Duncan & Cole LLP, has represented clients statewide since 1948 on all types of cases, including injuries, accidents, criminal defense, and business lawsuits.

The Types of Distracted Driving that Cause the Most South Dakota Car Accidents

Fri, 28 Jan 2011 08:00:00 EST

Negligent drivers cause many serious South Dakota car accidents each year, resulting in catastrophic injuries or even death. A growing cause of these accidents is distracted driving.

A recent government study found that 16 percent of all car accident fatalities in 2009 involved distracted driving, up from 10 percent in 2005. In addition, 16 percent of drivers in fatal crashes younger than 20 years old were distracted drivers.

There are many possible activities that can cause South Dakota distracted driving car wrecks. However, some of the most common include:

Eating
Drinking
Cell phone calls
Texting
Changing the radio or a music player
Reading
Fixing hair or makeup

The most dangerous distracted driving activity is texting while driving. Texting on a cell phone takes your eyes, hands, and mind off the road at the same time, forming a deadly combination that often ends in catastrophic South Dakota car accidents (link to article).

If you or a family member has been involved in a car accident that was caused by a negligent or distracted driver, then you need to contact a South Dakota car accident lawyer as quickly as possible. You may be able to earn financial compensation for your injuries, but you must act now.

Call the South Dakota car accident attorneys of Zimmer, Duncan & Cole today at (877) 789-5238 to request a free, no-obligation consultation with one of our experienced lawyers. You don't have to pay us anything, unless you win your case.

NEVER Give a Recorded Statement after a South Dakota Car Accident

Mon, 24 Jan 2011 08:00:00 EST

If you or a loved one has been in a catastrophic South Dakota car accident, then you know how damaging such an occurrence can be. These wrecks can result in serious and long-lasting injuries, or even loss of life.

You also most likely have experienced the great cost of these South Dakota car wrecks. Not only is there damaged property and medical bills, but also the probability of physical therapy and ongoing care. The situation gets even worse if you cannot work due to your injuries.

If your South Dakota car crash was caused by a negligent driver who was drunk or distracted, then these costs can seem unfair. Indeed, you may be entitled to earn financial compensation through a jury verdict or out-of-court settlement.

Even if you are perfectly eligible to recover damages from a serious wreck with a negligent driver, the insurance companies that have to pay out this sum may not see things the same way. Insurance companies are interested in only one thing: making more money.

The insurance companies will use every trick and tactic to ensure that they take control of your case and get their way. They will act like they are your best friend, until they decide to lie and cheat in order to stick you with the least amount of money possible.

Do not trust the insurance companies. If you have been injured in an accident that was not your fault, then try to avoid talking to an insurance adjuster. Politely refer him or her to your South Dakota car accident lawyer.

The insurance companies may ask you to give a recorded statement about the accident. It is important that you NEVER do this. They will twist the details of the crash to make it seem like you were in the wrong, making you look like the bad guy.

To help avoid this and other mistakes that will hurt your South Dakota car accident case, call the South Dakota car accident attorneys of Zimmer, Duncan & Cole today at (877) 789-5238.

Zimmer, Duncan & Cole will fight on your side against the insurance companies, ensuring that you and your family have the best possible chance to earn the financial compensation you deserve.

Drunk Driving Fatalities in South Dakota

Mon, 24 Jan 2011 08:00:00 EST

If you or a loved one has been injured or even killed by a negligent driver, then you may be eligible to recover damages from your South Dakota car wreck. This financial compensation can cover your medical bills, ongoing care, missed time at work, and many other related costs.

Some forms of negligent driving, which can result in injury or South Dakota wrongful deaths, include:

Texting while driving
Talking on a cell phone
Changing radio or MP3 player
Fixing hair or applying makeup
Drinking and driving

South Dakota drunk driving may be the most serious of them all. Such behavior puts you and all those around you in serious danger.

Drinking and driving results in nearly 15,000 deaths each year throughout the Unites States. These deaths account for around 40 percent of all motor vehicle-related fatalities that occur each year.

In 2008 alone, South Dakota had 41 alcohol-related motor vehicle deaths out of the 119 total that year. That accounted for 34 percent of all motor vehicle-related deaths, while 29 percent involved a driver over the .008 blood alcohol level.

If you or a family member has been injured or killed in a South Dakota car accident caused by a drunk driver, then you need to call a car wreck lawyer as soon as possible to learn more about your legal rights.

Contact the South Dakota car wreck attorneys at Zimmer, Duncan & Cole today to schedule a free, no-obligation consultation about your case. Call (877) 789-5238.

The Symptoms of Traumatic Brain Injuries (TBI) May Take Awhile to Develop after South Dakota Car Accidents

Mon, 24 Jan 2011 08:00:00 EST

South Dakota car accidents can easily lead to broken bones, sprains or dislocations, back or neck injuries, and deadly head or brain injuries.

While sustaining any kind of injury is difficult, a traumatic brain injury (TBI) that results from a South Dakota car wreck can be particularly devastating. The effects of this injury are uniquely damaging. They include:

Physical disability
Loss of memory
Loss of speech or language skills
Loss of learning capabilities
Loss of emotional capabilities

The life of someone who has suffered a traumatic brain injury (TBI) in a South Dakota car accident will be forever changed. The effects of a TBI are irreversible, continually affecting the injured party's ability to relate to people and the world in general.

The important thing to remember about traumatic brain injuries is that the symptoms and effects may not show up immediately. The trauma in a South Dakota car crash may cause an injury that you do not even notice until days or months later.

Therefore, you need to seek immediate medical attention after a serious South Dakota car wreck. If you find that you or a loved one has suffered a serious injury, such as a TBI, then it is crucial to learn more and contact an attorney to see if you are eligible to recover damages.

To learn more about your legal rights, call the South Dakota car accident lawyers of Zimmer, Duncan & Cole today at (877) 789-5238. You can schedule a free consultation at one of our Sioux Falls or Parker offices, or we can come to see you if you are unable to travel.

The car accident attorneys of Zimmer, Duncan & Cole represent victims of serious car wrecks in South Dakota. We have years of experience fighting the insurance companies to earn our clients the compensation they truly deserve.

What are the most common causes of South Dakota truck accidents?

Mon, 24 Jan 2011 08:00:00 EST

When negligent truck drivers get behind the wheel, they pose a danger to all of the people around them. These truck drivers face the continual possibility of causing South Dakota truck accidents that injure or kill other people.

There are many possible causes of South Dakota truck accidents. These can include:

Bad weather
Driver fatigue
Drunk driving (DUI)
Defective trucks
Aggressive driving
Unsecured or unbalanced loads

If you or a loved one has been injured in a South Dakota truck wreck, you probably are dealing with medical bills, ongoing care or physical therapy, lost wages for missed time at work, and pain or emotional suffering.

If your South Dakota truck crash was caused by a negligent driver, then you may be able to recover damages from the wreck. This financial compensation can cover your bills and help you put your life back together.

If you think you may have a legal case, call a South Dakota truck accident attorney to learn more today. An experienced lawyer can give you guidance on how to proceed and help fight against the insurance companies on your behalf.

Call the South Dakota truck accident lawyers of Zimmer, Duncan & Cole at (888) 789-5238 as soon as possible to schedule a free, no-obligation consultation with one of our lawyers.

Is there insurance coverage for the accident?

Fri, 14 Jan 2011 08:00:00 EST

In this blog, we often try to explain recent court cases and legal issues in plain English.

Here, we look at the odd situation where an insurance company sues the victim of a car accident.

In most of the cases we see at our office, the damages for a Client’s harms and losses will be paid by an insurance company. Usually, those insurance companies are not named as “parties” to the lawsuit. They are just waiting in the wings to write the check.

One exception is when there are questions about whether there is insurance coverage at all, or whether a different insurance company is on the hook, instead. In those situations, an insurance company will often file a lawsuit in which the court determines coverage. That’s what happens in the case handed down yesterday by our state Supreme Court.

The case of State Farm v. Bottger, Kosinski, and AMCO Insurance involves an unusual car accident in Union County. After a high school “drinking party”, a group of students leaves together in a car. Although they designate a driver, they soon discover the driver is just as drunk as his passengers. The car crashes into a steep ditch and comes to rest in a corn field. All of the passengers exit the car, unharmed. The driver then tries to move the car out of the ditch, even though he is told not to. He accidentally runs over one of the passengers, pinning her under the vehicle and injuring her.

Since the driver didn’t own the car, the question is, “Whose insurance will cover his carelessness?” To resolve this question, State Farm then sued the injured passenger, the driver, and the driver’s mother’s insurance company.

The car’s owner had insurance that covered others who drove the car with permission. However, the driver was told to get out, so the first policy doesn’t cover him. The driver’s mother had insurance that covered her family members when they drive other vehicles, as long as those family members believed they had permission to drive the car. The case will be sent back to the trial court to find out if the driver reasonably believed he had permission to drive the vehicle out of the ditch, even though he was told to get out of the car.

* * *

If you have a question about the law, your accident, or about a recent court case, please let me know. I will do my best to answer it with as little “Legal-ese” as possible. Send me a message through the "Free Consultation" box to the right, or click the "Contact Us" button at the top of the page.

SD Supreme Court: Delay At Stop Sign Not Enough Justification To Stop Car

Tue, 04 Jan 2011 08:00:00 EST

In its opinion of State v. Herren released on December 22, 2010, the South Dakota Supreme Court stated that witnessing a driver stop at a stop sign for roughly 40 seconds was, by itself, not sufficient evidence to justify the subsequent traffic stop and DUI conviction of the driver. However, coupled with an anonymous tip, the delay was sufficient to justify the traffic stop, and the Supreme Court upheld the conviction of the driver.

In this case, a Brookings County Deputy Sheriff stopped the driver’s vehicle primarily because of the officer’s observation that the vehicle hesitated too long (roughly 40 seconds) at a stop sign at a rural intersection. The officer was also aware of an anonymous tip stating that a blue “Ford Durango” was being driven by a drunk driver on Highway 14 from Flandreau, South Dakota to Toronto, South Dakota. The main issue facing the court was whether the officer had “reasonable suspicion” to make the investigatory traffic stop.

Generally, a traffic stop must be based on objectively reasonable and articulable suspicion that criminal activity has occurred or is occurring. In other words, the question here was whether the officer was justified in pulling over the vehicle based only on the driver’s delay at the stop sign, coupled with the anonymous tip.

The court actually held that the officer’s observance of the 40-second delay at the stop sign was itself not enough justification to pull over the driver. Similarily, the anonymous tip, by itself, was not enough justification either, because the officer had no way to verify whether the vehicle he saw was the same as the vehicle that was reported. The tipster stated that the vehicle was a blue “Ford Durango,” when in fact the vehicle was a green Dodge Durango.

However, taken together, the delay at the stop sign and the anonymous tip gave the officer reasonable suspicion to initiate the traffic stop. Together, they provided the officer with more than a “hunch” necessary for a valid traffic stop.

This case is certainly interesting because of the rule the court seems to announce by stating that a delay at a stop sign is by itself not justification for a traffic stop. This rule should likely be qualified, and may only apply to situations, as was the case here, where there was no other traffic behind or adjacent to the driver. The court notes the law itself does not specify how long a vehicle should stop at a stop sign. If no law is being broken, why should the driver be pulled over? On the other hand, the courts have generally recognized that officers may rely on their own experience and specialized training to make inferences and deductions about the information available to them.

What do we learn from this case? According to the court, a driver’s mere delay at a stop sign may not be enough for the police to make a traffic stop, but coupled with other information, such as an informant’s anonymous tip, a traffic stop is allowed.

Wrongful Convictions And The Presumption Of Innocence

Tue, 04 Jan 2011 08:00:00 EST

On Monday, January 3, 2011, prosecutors declared a Texas man innocent of a rape and robbery that put him in prison for 30 years, longer than any other DNA exoneree in Texas. DNA test results excluded Cornelius Dupree as the person who attacked a Dallas woman in 1979. DNA testing is able to conclusively show whether a defendant’s DNA matches the DNA found at the crime scene. Thus, Dupree was exonerated because he simply did not commit the crime. Dupree was just 20 years old when he was sentenced to 75 years in prison in 1980. Now, at the age of 51, Dupree has spent more time wrongly imprisoned than any other DNA exoneree in Texas.

Interestingly, Texas has freed 41 wrongfully convicted inmates with the use of DNA testing since 2001 – more than any other state. In Dallas, Texas alone, there have been 21 DNA exonerations since 2001. The Dallas crime lab maintains biological evidence decades after a conviction, which leaves samples available to test decades after the alleged crime occurred. Nationally, only two other DNA exonerees have spent more time in prison: one man spent 35 years in Florida, and another spent 31 years in Tennessee.

It is nearly impossible to imagine how difficult it would be to be forced to spend three decades of your life in prison for a crime you did not commit. Little can likely be done now to give this man back his lost years, but that should not be the end of the story. The important lesson to glean from this unfortunate event is simply that just because a person is accused of a crime, it does not mean they are guilty.
Suspects are presumed innocent for a reason. The government has the heavy burden of proving beyond a reasonable doubt the guilt of any individual accused of a crime. Without DNA evidence, many prosecutors are forced to rely on eyewitness identification, which can be notoriously unreliable. Numerous studies have shown that photo arrays and lineups can be untrustworthy.

The moral of the story here is simply to always remember that suspects are presumed innocent, not guilty. The burden always remains on the government to show beyond a reasonable doubt that the person is guilty as charged. There is a reason for that. It is because human beings can be wrong and make mistakes. Our Constitution is designed to make sure the evidence is overwhelming before someone is convicted of a crime and deprived of their liberty. Wrongful convictions are simply a sad example that the criminal justice system does not always get it right.

SD Law Blog: Defendant's Status as Municipality Employee Does Not Preclude Liability

Wed, 22 Dec 2010 08:00:00 EST

In Salzer v. Barff, released on December 15, 2010, the South Dakota Supreme Court held that the two-year statute of limitations that prohibits filing lawsuits for personal injury or wrongful death against municipalities more than two years after the date of the accident does not apply to lawsuits against the individual employees of a municipality. Instead, the normal three-year statute of limitations applies to lawsuits against municipality employees.

Michelle Salzer was hit by Officer Barff who ran a red light while responding to an emergency call. The officer did not have his siren activated. Almost three years later, Salzer brought a suit against the city of Sturgis and Barff. The lawsuit against the City was dismissed. The sole issue facing the Court was whether SDCL 9-24-5 prevented Barff, an employee of the municipality, from being sued as a result of his status as a municipality employee.

Salzer argued that her lawsuit against Barff was unrelated to Barff’s status as a municipal employee. Barff contended that the statute applied because a municipality can act only through its employees. The Court examined the plain language of the statute, and concluded that the legislature only intended the statute to apply to municipalities as organizations, and was not intended to cover individual employees.

The Court’s conclusion is sound both in its clear reading of the statute, and from a more common-sense perspective. The purpose behind the shorter statute of limitations that applies to municipalities is that is decreases liability, and allows for faster notice of lawsuits. Barff had argued that a municipality can act only through its employees, but such an argument was somewhat off target. The statute was designed to protect the municipality as a party to a lawsuit, not as an actor or agent. Although Barff happened to be a city employee when he ran the stop sign, Salzer was suing him not as a municipality, but as an individual defendant for negligence.

Something to take away from this case is the fact that when someone injures you, especially in a car accident, you have several options for choosing who to sue. Imagine a made-up company, “Acme.” Acme’s truck driver runs a stop sign and hits your car. At this point, you could likely sue the truck driver individually, but you would also likely sue his employer, Acme. Imagine further that perhaps the stop sign was obstructed or difficult to view. Then perhaps you would have a meritorious lawsuit against the city or town. Liability can take many forms, and, according to statute, you have different statutes of limitation to sue different parties. If you have been injured, it is wise to find an attorney who has the experience to know who to sue, and, more importantly, when.

Make Sure Your Daycare Provider Has Business Insurance

Wed, 22 Dec 2010 08:00:00 EST

As more and more people enter the workforce, daily child care, or “day care,” has become an increasingly popular business venture for many individuals. It is quite common that the person running the daycare facility actually runs it out of his or her own residence. Unfortunately, some daycare owners do not have the proper type of insurance coverage that covers both the home and the business that operates within the home. This means that if a child is injured in the home, the daycare provider’s insurance will not pay for any injuries may occur to the child.

These were the unfortunate circumstances that the South Dakota Supreme Court faced in its decision in Western National Mutual Insurance Company v. Decker, decided on December 8th, 2010.

In this case, Sarah Decker provided informal day care in the home of Benjamin Walder. Sarah cared for several children in Benjamin’s home, but had no name for her babysitting service or a written agreement with any parents. She kept no records and filed no tax returns. Despite the informality of the daycare arrangements with various parents, Sarah cared for children five days a week, generally from nine to five. Joe Decker left his eight-month-old child with Sarah. Sadly, the child suffered permanent brain damage when he choked on a small object.

A lawsuit was brought on behalf of the child against Sarah and Benjamin for negligence for improper care of the child. Benjamin’s home insurance company, Western National, sought a declaratory judgment from the Court to declare that Western National had no duty to defend the lawsuit, or to pay any damages that might be awarded because of the lawsuit. A declaratory judgment is simply when a party asks the court to declare what the rights and obligations of a party are, usually in reference to the contract. In other words, Western National was asking the court to rule on what exactly the insurance policy would cover according to its own terms.

The South Dakota Supreme Court held that Western National would not have to pay any damages that resulted from the negligence of either Sarah or Benjamin. The reason for this conclusion was that Benjamin’s insurance policy provided only basis homeowner’s insurance, and specifically excluded liability for any injury that resulted from activities relating to a business.

So what is the lesson here? Ultimately, the best lesson to try and create from a set of unfortunate circumstances is that every parent needs to be diligent when searching for a daycare provider. If you have a child in daycare, you need to ask whether the provider is insured for the business that the provider is operating. No one expects accidents to happen, but it is absolutely imperative when entrusting your child to the care of another that the daycare provider is properly insured.

The Threshold for Testamentary Capacity – The Sound Mind Dilemma

Fri, 13 Aug 2010 08:00:00 EST

On June 16th, 2010, the Supreme Court of South Dakota issued a ruling on a Will Contest case in Re. Estate of Berg that does a good job of explaining what it means to have “testamentary capacity.” In South Dakota, you have to have testamentary capacity in order to make a valid will. What this basically means is that you must meet a certain level of mentally competentancy.

An individual 18 years or older who is of sound mind may make a will. Sound mind, for the purposes of testamentary capacity, as someone who without prompting, is able to comprehend the nature and extent of his property, the persons who are natural objects of his bounty, and the disposition that he desires to make of such property. In other words, the individual must have an idea of what he owns, the people who would normally inherit if a will didn’t exist, and have a firm understanding of how he wants his property to be divided or transferred.

Whether or not someone is of sound mind is a difficult question to answer. The Court doesn’t look at any one moment in time, but considers the condition of the person’s mind a reasonable length of time before and after the will is executed. Just because a person may suffer from insane delusions or hallucinations, does not mean he or she does not possess sound mind. The key is whether or not the delusions or hallucination have an effect on the will. For example, a person may hallucinate that his father is in fact a character from a television show, but so long as this fictional father is not named in the will, the person may still be judged to have sound mind. These were the circumstances in the South Dakota Supreme Court decision.

If you think a loved one may have lacked testamentary capacity when he or she executed a will, it is a good idea to share these facts with an attorney. A competent, able, and experienced attorney will be able to give you a better sense of whether or not the individual may have not been of sound mind.

Can't Find The Will? It May Still Be Enforceable

Fri, 13 Aug 2010 08:00:00 EST

It may come as some surprise to some to know that it is possible to admit a will to probate, or to enforce a will, even if the actual signed will is missing. Of course, it’s never recommended to rely on this as part of your estate planning, but if you happen to be in the unfortunate position where you know you were named in a will, but the will is missing, then this article might be very useful to you.

In general, a will has to meet certain requirements to be valid. I won’t get into detail, but for a will to be valid, it needs to be in writing, signed by the testator (person who is making the will), and should be, if possible, signed by two witnesses in the testator’s presence. Holographic wills are also valid. A holographic will is a will that’s material provisions are handwritten by the testator, and also signed by the testator.

However, it is possible to enforce a will even if the original signed document cannot be found. There are a couple of burdens to overcome to do so. First, if the original will has been lost, the proponent of the will, or person seeking to enforce the will, has to prove to the court with “reasonable certainty” that the will was not, in fact, revoked. The reason for this is because the law presumes that if a will can’t be found, that the testator intended to revoke the will by destroying the actual document.

Next, if the proponent has a copy of the will, but it is not the original signed copy, then the will may be enforced if one credible witness can testify that the copy is a true copy of the original. If the proponent doesn’t have a copy of the will, then the proponent must prove the contents of the will with “clear and convincing” evidence.

In other words, even if you don’t have a copy of the will, it may still be enforceable. The burden for doing so is high, however. The proponent must have the judge or jury clearly convinced about what the terms of the will actually were. This burden of proof is higher than the normal “preponderance of the evidence,” which means more likely than not, but still not as high as “beyond a reasonable doubt,” which means to a near certainty. Obviously, it is even harder to convince a judge or jury if another party is arguing against your case.

Of course, you should never count on this exception to enforce a will. If you have your own will, you should keep it in a safe place, and may even want to keep a copy with your attorney. However, in the unfortunate event that you believe there is a will that can’t be found, it might not be the end of the world. Consult with an attorney, and see whether this exception might apply.

He Didn't Have A Warrant!

Thu, 12 Aug 2010 08:00:00 EST

One of the many things that makes this country great is the protection that the Fourth Amendment gives to every person, to be free from unreasonable searches and seizures by the Government. What this means, in everyday terms, is that if the police are going to search your house or your person, they have to have a warrant. A warrant is simply an order from a Judge than authorizes a police officer to perform an arrest, search, or seizure.

However, there are some exceptions to this rule that are helpful to keep in mind. First, it’s good to know that the 4th Amendment doesn’t protect you from all searches, but only unreasonable ones. That’s why, over time, some exceptions have developed. There are three broad categories of exceptions I’d like to discuss with you today.

The first, and often forgotten exception, is consent. In other words, if a police officer asks to search your house, and you give him permission, then you have waived your 4th Amendment right, and the officer may proceed. This is important, because when an officer asks if he can search your home, car, or your person, he isn’t being polite: he’s trying to get your consent.

The second exception is what is known as exigent circumstances. This exception only applies when an officer is investigating a crime. The only time it applies is if delay in procuring a search warrant would gravely endanger life, risk destruction of evidence, or greatly enhance the likelihood of a suspect’s escape. So, if an officer can actually see a crime being committed inside a residence, he can more than likely enter the residence without a warrant.

The third exception is called aiding persons in need. This exception cannot apply if a police officer is investigating a crime. In general, a police officer has the authority to enter a residence without a warrant when there is a reasonable belief that someone is in need of immediate assistance. For example, if an officer has reason to believe a person is suffering from a heart-attack inside the house, he may enter the house without a warrant. Any evidence in plain view of illegal activity the officer sees after entering the house may be used against the individual.

Today, there are two morals of the story. First, always remember that you are protected by the Fourth Amendment from unreasonable searches and seizures. Second, although a warrant is almost always required before any search or seizure, there are some exceptions. The biggest mistake many people make is simply consenting to a search, and waiving their Fourth Amendment right.

To read a very informative South Dakota Supreme Court ruling on these exceptions, click here.

"But I Signed the Contract..."

Mon, 14 Jun 2010 08:00:00 EST

Believe it or not, a signed contract is not always enforceable.

A while back, I wrote about our Clients who are surprised to learn that a contract can be enforceable when it’s not in writing. Here, I discuss how a contract in writing may not be enforceable. (In short, the law doesn’t always care about formalities, but will instead seek out the true agreement of the parties, regardless of what is or is not on paper.)

This issue comes up more often that you’d expect, and in the past month, our office has dealt with it at least three times. In one case, a Client signed a one-page, handwritten “lease” on farm ground, which the tenant later tried to enforce. He sued our Client seeking six-figure damages. The testimony at trial revealed that although our Client signed the “lease”, the document was not intended to be a lease, but, instead was quickly written up solely for the purpose of permitting the Tenant to get financing and crop insurance. The jury tossed out the claim, and the judge awarded our Client several thousand dollars for costs related to the lawsuit.

In another case, a divorce decree was entered based on a stipulation between the parties, signed on the same day the divorce was started. The decree divided the property in a manner grossly unfavorable to our Client, and tacked on alimony on top of that. Our firm was hired to “undo” the judgment. Again, the law provides several options for the judge to cancel the decree and, essentially, go back to square one on the division of the marital assets and alimony. That action is still pending.

And in yet another example, a Client of ours asked us to enforce a $61,000 debt from a former business partner, who had signed an agreement promising to pay that amount. In this case, the other side argued that the contract wasn’t enforceable because it was “unfair” and a “penalty clause”. That action is also pending.

An even more common occurrence is with boiler-plate language in an insurance policy or other consumer contracts. Again, courts often care more about what is “fair” than what’s actually written down. Likewise, if there is an industry custom or usage given to certain phrases (or documents), then a court may interpret the text in a different way than what the contract appears to say in 'black and white'.

This issue is also related to one of our firm's niche practice areas: challenging a Last Will and Testament that was signed by the deceased, but which gives property and money in a way which does not represent the deceased's true wishes and intentions.

If you have a situation involving a disputed contract (signed, unsigned, oral, or written), or if you encounter what appears to be a "contested will" our Firm would be happy to review the facts and help you decide if you need an attorney.

Happy Father's Day

Mon, 14 Jun 2010 08:00:00 EST

This past weekend, I spent a lot of time outside putting the finishing touches on a new treehouse/playhouse for my kids. They're very excited because it will have a trap-door and 2nd floor lookout.

While working in our back yard in the mist and rain, I had a satisfying moment of realization and insight about the work that I do back here at the office.

Often times, the cases I take involve folks who want nothing more than to spend their weekends with their kids, and spend their weekdays working at a job so that they have enough money to provide for their families. However, it's easy for the rest of us to take that simple fact for granted. Many of our clients simply cannot spend their weekends how they want to.

There are lots of ways that keep folks from enjoying their weekends or from even earning a decent living......whether it's injuries or bills from a car accident, an insurance company who won't pay out the money they're owed, a former business partner that won't pay the money he owes, an employer who wrongfully withholds overtime or bonuses, or a client's former spouse who always is playing "custody games"

My realization was simply this: all too often my job is simply to make sure that a Dad has the chance to enjoy the simple things in life: weekends, kids, and enough money to pay the bills. Lawsuits that our firm files are not "get rich" schemes for anybody....they're the last known way to enforce a Client's rights and ensure that the Client can simply enjoy the simple things in life. And it gives me great satisfaction to know that I can help people get their lives back on track.

Father's Day is coming this Sunday. Take the time between now and then to reach out to a Father who may need a helping hand, or even just a quick 'thanks' for all they do as fathers. And if you're looking for an inexpensive, but thoughtful gift, here's a quick article with some simple suggestions.

Happy Father's Day!

New SD Supreme Court Case: Medical Expenses Go Hand in Hand with Pain and Suffering Damages

Thu, 10 Jun 2010 08:00:00 EST

On May 26, 2010, the South Dakota Supreme Court released a new opinion that contains a very interesting point of law concerning damages in personal injury cases. Damages are what a plaintiff is awarded if the plaintiff wins the lawsuit, and usually takes the form of money. In this case, Reinfeld v. Hutcheson, the Court re-affirmed the principle that, in general, a verdict in a personal injury lawsuit that awards damages for medical expenses but not damages for pain and suffering is inadequate.

It is fairly easy for someone to imagine what someone’s medical expenses will be. After all, a jury can see the plaintiff’s medical records and bills to come up with that amount. Pain and suffering can be trickier to put a finger on. It can be difficult for a jury to really identify how much a person should be compensated for, for his or her subjective pain and suffering.

What this new case clarifies is that, in general, medical expenses go part and parcel with pain and suffering. In other words, if a plaintiff has had to undergo medical treatment for injuries, it is necessarily implicit or logically follows that the plaintiff will have experienced pain and suffering. After all, at its essence, the purpose of medical treatment is to alleviate pain. Thus, if a jury awards damages for medical expenses for the treatment of pain, then it follows that the jury should also award damages for the plaintiff’s pain and suffering.

You can read the entire opinion here.

ZDC Accepting New Criminal Defense Clients

Tue, 08 Jun 2010 08:00:00 EST

Zimmer, Duncan and Cole is always accepting new criminal defense clients. Both Jeff Cole and Drew Duncan have extensive experience as criminal defense attorneys. In the past year alone, Jeff and Drew have worked on numerous criminal matters, and are currently working on everything from DWI cases to serious felony matters.

If you are facing criminal charges, please contact us immediately so we can fight hard on your behalf.

New SD Supreme Court "Slip and Fall" Decision

Tue, 18 May 2010 08:00:00 EST

On March 17, 2010, the South Dakota Supreme Court released an opinion on a “slip and fall” case. This decision is very helpful in showing what exactly a slip and fall case is, and when an owner of a business can be liable for an injury of a customer. You can read the entire decision here.

In this case, Francis Janis, the plaintiff, walked into Prairie Market, a supermarket, at 7:30 AM on the morning of January 28, 2004 to get his daily breakfast. This morning was very cold, with a strong wind blowing from the northeast. When Janis walked through the sliding glass doors, the rug beneath him slid beneath his feet, and he began to fall. He fell awkwardly, twisting his knee and landing on his back. When he tried to get up, he fell again. Janis put his hand under him, and felt a patch of ice on the floor, which had been hidden under the rug.

The question for the court to decide was whether Prairie Market should be liable, or have to pay, for Janis’s injuries. The court held that because Janis was a business visitor, or “invitee”, who was there in direct connection with a business dealing with the owner, that Prairie Market owed Janis a duty of “reasonable care.” This means that Prairie Market had to make the property reasonably safe for the benefit of all invitees, including Janis.

South Dakota law states that owners must warn invitees of concealed dangerous conditions known to the owner. Prairie Market argued that since it didn’t “know” about the danger, since the ice was hidden under the rug, it should not be held liable. The court held that, essentially, Prairie Market should have known that a rug placed on wet tile immediately inside a frequently open door in the heart of winter might involve an unreasonable risk to invitees. Therefore, Prairie Market could be held liable.

For a more in depth discussion of slip and fall cases in South Dakota, please read our article here.

Reducing Accidents

Wed, 31 Mar 2010 08:00:00 EST

Here's a quick tip to help you reduce your risk of an auto accident. Read the full article here in the February 2010 issue of Car & Driver magazine.

In short, the key is to adjust your side mirrors much farther out than you normally do. It takes a small while to get used to it, but the result is that you can actually change langes without the need to look over your shoulder.....in other words, your blind spot disappears.

THE EVICTION PROCESS

Fri, 19 Feb 2010 08:00:00 EST

We got a call at our office this morning from a gentleman who found a "Three Day Notice to Quit and Vacate" taped to his apartment door. He wanted to know what this meant, legally speaking. (In his words, he wanted to know if an 18-wheeler would arrive on the fourth day to remove him and his belongings.)

Because of the current economic situation in our country, this is a relatively common occurrence these days. In the event that you need the same information, we are sharing the answer with our readers, along with a brief explanation of the eviction process. (The same process applies to residential, commercial, and ag leases).

Click here to read more about evictions.

No Common Law Marriage In SD

Thu, 11 Feb 2010 08:00:00 EST

In a decision regarding a will-contest case decided on January 6th, 2010, the South Dakota Supreme Court held that while South Dakota will recognize valid common-law marriages in other jurisdictions, the state of South Dakota does not recognize common-law marriages in the state itself.

In this case, the trial court held that Karen Hargrave was the common-law wife of Paul Duval. Therefore, upon Duval’s death, the court held that Hargrave should be treated as Duval’s surviving spouse for inheritance purposes in South Dakota. Duval’s daughters appealed this judgment, arguing that since Duval was never formally married to Hargrave, Hargrave should not be treated as his wife for inheritance purposes.

South Dakota eliminated common-law marriages in 1959. However, South Dakota continues to recognize any marriage contracted outside of the state, providing the marriage is valid in the state where it took place. Hargrave argued that since she and Duval lived together in Oklahoma, which recognizes common-law marriages, the court should hold the marriage as valid. Common-law marriage is more than simply living together. In fact, as in the case for Oklahoma, the couple must agree or declare their intent to be married, live together, and hold themselves out as husband and wife. Since Hargrave and Duval did not proclaim themselves to be married, Oklahoma law would not recognize their alleged common-law marriage.

The South Dakota Supreme Court therefore held that Hargrave and Duval were not in a common-law marriage, and Hargrave should not be treated as Duval’s wife for inheritance purposes. So what is there to learn from this from a will-contest perspective? I would argue that this is an important case for both sides. First, if your loved-one dies, and his or her partner claims a common-law marriage, you will know that South Dakota will not honor such a claim. Conversely, if you are currently residing with someone you consider your husband or wife, but have not been officially married by the State, you might want to consider that your inheritance may not go to him or her, absent such a declaration in your Will.

Recent SD Supreme Court Estate Ruling

Thu, 11 Feb 2010 08:00:00 EST

On February 10, 2010, the South Dakota Supreme Court filed an opinion on a will-contest case. This case will help teach you about two important terms that we use in the legal community. The first is what is called a “Personal Representative”. The second term is “fiduciary duty.”

This particular case was very complicated, and so I won’t waste too much of your time on delving on the facts and background. In 1997, Walter Brownlee passed away and left a Will that devised the bulk of his estate to his children and grandchildren, with his Certificates of Deposit (C.D.’s), residence, and most of his personal property going to his long-time companion, Jeanie Weekley. Over time, Weekley felt that the Personal Representative was doing a poor job in handling the estate, and sued him for negligent administration of the estate.

Before we get too far ahead of ourselves, let’s discuss what a Personal Representative is, and what his or her responsibilities are. A Personal Representative, also known as the executor or executrix, is the person who is designated in the Will to carry out the estate plan. In other words, he or she makes sure that everyone who is devised money gets that money, and takes care of the estate’s assets. He will pay off creditors, handle various paperwork duties, and deal with the probate court.

Personal Representatives also act in a “fiduciary duty” on behalf of those having an interest in the estate, and to act in the best interest of the beneficiaries of the estate. To put it differently, the Personal Representative has an obligation to manage the assets of the estate in a reasonable matter, so that those who are devised those assets get the most out of them. If the Personal Representative fails to reasonably perform his fiduciary duty, he is liable to interested persons, or those who have an interest in the will, for the damage or loss resulting from his breach of the fiduciary duty.

In this case, the court found that the Personal Representative did in fact breach his fiduciary duty to Weekley, by failing to take possession of or preserve some construction equipment that were assets of the estate. Originally, this equipment was worth over $100,000. By the time the Personal Representative got around to selling it, it only netted $26,000. This case is a great example of how a Personal Representative did a poor job of managing an asset that caused damage to an interested party. Since it was the Personal Representative’s fault that the asset decreased in value, he was liable to Weekley for the difference.

The lesson here is that a Personal Representative needs to do his job, because if he doesn’t, he may end up paying for it.

Read the Fine Print!

Wed, 30 Dec 2009 08:00:00 EST

It has almost become cliché, but sometimes it is too easy to forget how important the “fine print” can really be when you are signing any sort of contract. The SD Supreme Court’s decision in Cole v. Wellmark on December 9, 2009 shows why it is so important to carefully read any document or contract you are asked to sign, especially an insurance contract.

In this case, Dellas and Maggie Cole were attempting to obtain health insurance after an employment change resulted in a loss of coverage. The contacted an insurance agent, in order to find a new policy. The agent went through several options with them, and the Coles settled on a policy from Wellmark. The agent informed them that their youngest son’s allergies would probably be considered a preexisting condition for which an exclusion would be issued.

The Coles signed the policy application, and expected coverage to begin after their check was deposited. Shortly thereafter, Coles’ daughter had a knee injury, and wound up with $20,000 in medical expenses. The Coles contacted the agent, and it was then that the agent informed them that the insurance policy was never actually issued. You see, right above the signature line was language that stated that coverage would not begin unless and until the application was reviewed and approved, and notice of acceptance would be provided in writing.

Obviously, the Coles weren’t too happy, and they sued Wellmark. They lost at the trial level, and appealed the SD Supreme Court. The Coles thought they had a good argument. After all, Wellmark had deposited their first payment, and the agent had verbally told them that everything was “all set” and “good to go.” The Supreme Court said no. The Court held that the limiting language in the application (the “fine print”) trumped any statements made by the agent. Since Wellmark never approved the application, there was never any coverage.

So what’s the lesson here? Well, besides the fact that the Coles might want to sue their agent, the lesson is this: the limitations or conditions that are set out in written agreements, especially insurance policies, will almost always trump any verbal agreements or assurances. If the cell phone salesman promises free texting, but it’s not in the contract you sign, then you’ll be paying for your texts. We sign contracts every day. Cell phone plans, loans, waivers…they are everywhere, and they can be confusing. Make sure you consult an attorney before signing any document that appears confusing or ambiguous, so you really know what you are getting yourself into.

It Couldn't Happen Here...Right?

Tue, 29 Dec 2009 08:00:00 EST

Imagine living in a country where you could be held in jail for 18 days without being able to be appointed an attorney. Even worse, you suffer from a serious heart condition, post traumatic stress disorder, and a hiatal hernia. You tell your jailor that you need your medication, and all you get back is a note saying, “The medical staff is aware and signed you up for a sick call.” You repeatedly tell your jailor that your rights have been violated, but to no avail.

It may come as some surprise, but such a serious violation an individual’s rights happened right here in South Dakota. Eric Larson was arrested for alleged simple assault, booked in the Moody County Sheriff’s Office, and then transferred to Minnehaha County Jail in Sioux Falls on July 24, 2008. Larson repeatedly requested that his own injuries be photographed, but his requests were ignored. Larson also wanted to be appointed an attorney, but since he had not yet been arraigned, he could not secure counsel. So there he sat, for 18 days, until he was finally brought before a magistrate on August 13, 2008.

Thankfully, we live in a country where this type of behavior is the exception rather than the rule. The United States Constitution guarantees every individual’s right to a speedy trial. The U.S. Supreme Court has held that those arrested without a warrant, as Larson was, must have a judicial probable cause determination within 48 hours after the arrest, unless a bona fide emergency or other extraordinary circumstance exists. Even South Dakota statute requires that a person arrested, with our without a warrant, must brought before a committing magistrate without unnecessary delay.

So what ended up happening to Eric Larson? Well, on December 12th, 2009, the South Dakota Supreme Court held that his case should be remanded, in light of the egregious misconduct. The Court decided that the State has the burden of showing an emergency or some extraordinary circumstance existed. If no adequate justification can be shown, then the charges against Larson will be dismissed. (Feel free to read the court’s opinion here.)

You might be wondering how this whole mess might have been avoided. It’s a good question. There are two important interests to weigh here. On the one hand, we certainly don’t want to let possible criminals off the hook just because it took too long for him or her to appear before a magistrate. On the other hand, we live in a country of guaranteed rights, and it is reprehensible for those rights to be willfully and recklessly ignored. The solution? Find an attorney you believe to be competent and able, and memorize the attorney’s office number. That way, if you ever feel that your rights are being violated, you can call that attorney and have an advocate on your behalf.

"But it's not in writing...."

Sat, 31 Oct 2009 08:00:00 EST

"But it's not in writing!" It's a myth that everyone seems to have heard before: a contract is no good if you don't have it on paper.

The good news: this myth isn't true. A contract is an agreement, not a document. Some contracts are oral, and some are written. Some are signed, and some are back-and-forth emails. Some are never discussed, but are just "implied" or "assumed", based on how the parties acted.

And sometimes, there are two contracts at issue: the written contract, and the oral agreement reached before everything was written down. In law, the oral agreement reached before the written contract is called the "parol agreement". (For history and language buffs, the word 'parol' originated in the context of the promises a war prisoner would make prior to being released from captivity, and, literally meant, "giving your word".)

The idea works the same way in the law, as well. If someone gives their verbal "word", a court can enforce those promises in the same way as a written contract. And if the written agreement doesn't explain exactly what the parties intended, a court can look at the prior negotiations and agreements.

An opinion issued this week briefly discussed parol agreements, and restated the rule that, usually, a written agreement replaces an oral agreement. See, Kjerstad Realty v. Bootjack Ranch. The case involved a dispute between a realtor, demanding a commission, and the property seller, who refused to pay the commission (because the ranch was sold to a neighbor to whom the realtor didn't actually "show" the property). The case was sent back for a jury trial.

In general, it is better to have written agreements. Often, however, we take each other's "word", instead. And the law will treat those promises the same as if they are written down. So if you hear someone say the magic phrase, "But it's not in writing", tell them the good news: it doesn't have to be.

SD Supreme Court Wrongful Death Suit

Mon, 28 Sep 2009 08:00:00 EST

On September 16, 2009, the South Dakota Supreme Court affirmed an order for a new trial in a wrongful death suit. The Court held that because a juror discussed his knowledge of a Google search before the trial, the jury was tainted and a new trial was justified.

In this case, Russo v. Takata Corp., the driver of a Geo Tracker who was driving to school was killed when her car slid off the side of the road and flipped nearly three times. Because the driver was a minor, her mother brought suit against Takata Corp., a seatbelt manufacturer, alleging that the seatbelt malfunctioned and failed to operate properly. After deliberations, the jury found in favor of Takata.

Prior to the trial, a prospective jury member performed a Google search of Takata. This juror made it through pretrial questioning, and ended up on the jury for the trial. During deliberations, the juror stated that he had done a Google search of Takata, and discovered that Takata had never been sued before. Since this information was received outside of the actual case, the Court held that it may have unfairly influenced other jurors.

The facts of this case are certainly unfortunate. We often take our children’s safety for granted as they travel to school everyday. It is the duty of parents to make sure their children wear their seatbelts. In this case, the parents performed their duty, but the seatbelt manufacturer may have failed to live up to their end of the deal. This situation is precisely where parents need to reach out to an advocate to ensure the safety of their loved ones. A verdict in favor of the plaintiff will not bring back the young girl who lost her life, but perhaps it would save the lives of other children in the future.

New US Supreme Court Ruling on Admissible Evidence

Fri, 17 Jul 2009 08:00:00 EST

In Menandes Diaz v. Massachusetts, the United States Supreme Court recently decided that the United States Constitution required state prosecutors who want to offer crime lab reports as evidence at trial, to have the particular expert testify in person at the trial and be subject to cross-examination by the Defendant’s Lawyer. Interestingly, the Supreme Court indicated that defense lawyers must assert the right to confront and cross-examine the expert witness before the State has to produce the witness to testify at trial.

What this means in South Dakota is that any prosecution expert trial witness who does a lab report, chemical analysis, finger prints analysis, blood spatter patterns analysis, blood chemistry analysis, gun, bullet, and really any other form of physical evidence subject to analysis by a laboratory must be supported by a witness and available for cross-examination. This is typically how it is done anyway at trial, but there may be certain lab reports that are generally relied upon as part of other testimony.

There is no question that this decision will give defense lawyers another avenue to protect their client’s rights by cross-examining certain witnesses that might not otherwise have had to testify. Defense Lawyers need to make sure they assert these rights.

US Supreme Court Ruling on Student Rights

Fri, 17 Jul 2009 08:00:00 EST

The United States Supreme Court recently decided that public school officials are now limited in their ability to search students for drugs or other harmful items. In Safford United School District v. Redding, the Supreme Court ruled that school official searches of the inter-clothing and undergarments of a student, in other words a strip search, will be pretty much prohibited from here on out under the United States Constitution.

The Court did not change the right of public school officials to search students’ back packs, notebooks, and other belongings along with their outer-clothing and pockets based upon reasonable suspicion.

This is a particularly difficult problem for school officials and for students and their parents. It is also a good example of how difficult these cases are. Certainly, the school officials want to provide a safe school environment for their students, faculty, and staff. On the other hand, the United States Constitution protects all people, including students, from unreasonable searches and seizures. This case points out the difficult issues that Courts, prosecutors, and defense attorneys face on these issues.

The bottom line here is that students do enjoy some Constitutional protection from unreasonable searches and seizures, and they are not susceptible to the whims of school administrators. Student searches by school officials require, at a minimum, at least reasonable suspicion of illegal activity before any search can be conducted.

Contractors Beware! Careless Mistakes Can Cost You Your Mechanic's Lien

Fri, 17 Jul 2009 08:00:00 EST

If you are a contractor and file your own mechanic's liens, you may want to take a moment to read the opinion in DAKOTA CRAFT, INC. V. SEVERSON, 2009 SD 56, handed down on July 8, 2009, by the South Dakota Supreme Court. The strict rule established by the Court is enough to make anyone nervous.

Severson, the contractor, built the Boneyard Saloon in Whitewood, South Dakota, a large, destination concert venue and bar that piggy-backs onto the success of the Sturgis Bike Rally. He finished the work on time, and completed everything required under the contract. But the property owner did not pay for the work.

Severson had filed over $512,000.00 worth of mechanic's liens on the property. (A mechanic's lien is like a mini-mortgage on real estate that helps ensure a contractor gets paid for his work.)

The trial court and Supreme Court held that $420,000.00 worth of the liens were invalid...leaving Severson secured for only about $82,000.00.

At great length, the Supreme Court picked apart the lien filing. The problems included the following:

"it is unclear whether these descriptions relate to entire jobs or projects to be completed, and whether Severson was contracting a certain result at a certain price or whether he was charging per hour";
"the descriptions lack sufficient detail to meet the 'ordinarily intelligent and careful person' test;
the language of the liens is "inherently ambiguous, and fails to provide notice to the other materialmen and mortgagees of the ultimate cost of the work provided pursuant to this document".
the liens "fail to disclose the materials supplied, the amount of the materials supplied, or the purpose of the materials".

The only part of the lien which was upheld had very specific language, as follows:

"Apply PVC/TPO ultra guard roofing system to 180’ x 36’ building and [parapet] all adhesive fasteners and flashings as per print . . . all materials, labor, adhesives and taxes".

However, the Court noted that "there was no separate agreement for either material or labor for the project". (If there were such an agreement, this specific language may have been insufficient, too.)

The moral of the story: Be careful out there, and, if you're not confident you're doing it right, hire a lawyer to file your mechanic's liens.

In addition, if you're a contractor still waiting to get paid, it may be time to foreclose your liens. If your liens are valid, the Court's strict rule may invalidate other liens on the property, making it more likely you can get paid in full.

New SD Supreme Court Personal Injury Ruling

Wed, 15 Jul 2009 08:00:00 EST

This week I am switching gears to talk about an interesting personal injury case that was just ruled on by the South Dakota Supreme Court. In Klutman v. Sioux Falls Storm, the South Dakota Supreme court affirmed the trial court’s ruling in favor of the plaintiff, Gaylen Klutmen

Gaylen was 17 at the time of a Sioux Falls Storm promotional season kick-off event. At one point during the event, children were invited to come on to the turf and play an informal game of touch-football. The participants didn’t sign waivers and received no warning regarding the condition of the field. After only a few plays in the game, Gaylen was running the ball up the field when he came to a sudden halt and fell backwards. Gaylen had his foot caught in the turf, which caused a severe knee injury. The trial court held the Storm liable for damages, and the SD Supreme Court affirmed this ruling.

So what’s the moral of the story? Well, the answer to that question is two-fold. First, it serves as a reminder to every person and business that they may be held liable for negligence for accidents that happen on his or her property. Second, no one expects a life altering accident to happen to them in a situation as innocent as a promotional event. But let’s face it: accidents do happen, and when they do you need an attorney to ensure you receive the damages you are entitled to.

An Ounce of Prevention....

Wed, 15 Jul 2009 08:00:00 EST

Benjamin Franklin coined the old saying, "An ounce of prevention is worth a pound of cure." It's a piece of wisdom applicable to so many areas of life: Eating well is much cheaper than a doctor's care later on. Regular auto tune-ups can save thousands compared to an overhaul.

It's wisdom that applies in the world of small business, as well. I encourage all of my business clients to make it a habit of consulting with their accountant, insurance agent, banker, and attorney (in that order). Each of those professionals is trained to spot problem-areas before they turn ugly.

Unfortunately, what happens too often is that the client was not consulting any of these professionals, and by the time the problem arrives at the law office, it has turned into a nasty business dispute, or full-blown litigation. The problem might have been prevented months or years earlier with an hour or two of consultation with an advisor.

In the legal realm, the issues often include employment contracts (and hiring and firing); misunderstandings about a business partnership (profit sharing; loss allocation; duties of partners; etc.); muddy and vague real estate leases; a do-it-yourself contract for deed (or any other do-it-yourself legal document); disgruntled minority shareholders; and any number of contract disputes.

Of course, careful planning cannot avoid all future problems......but it certainly is the best medicine to minimize them.

Whether it is "prevention" or "cure" that you need, the first step is to do something about it. This month, make it your goal to keep your business heading in the right direction by having a conversation with your accountant, insurance agent, banker, and attorney (in that order). If you need a referral or recommendation, we know some top-notch accountants, insurers, and bankers.

And, if you're facing a dispute that seems headed for litigation, it is always better to call the lawyer sooner, rather than later. Often, a creative settlement can avoid a lawsuit entirely. Or, if a jury trial is unavoidable, the time to begin preparing is right now.

Sobriety Checkpoint Warnings - via txt msg

Sat, 04 Jul 2009 08:00:00 EST

The Highway Patrol will send you a text message to alert you about sobriety checkpoints in your county.

Click here for more information, and to sign up.

Avoid a DUI. Call a cab. Designate a driver. Don't drive. Help keep our roads safe.

Celebrating Our Independence - July 4th

Sat, 04 Jul 2009 08:00:00 EST

There will be no shortage of grand celebrations today, July 4th. And for good reason. Even back in July of 1776, John Adams, in a letter to his wife, predicted that the signing of the Declaration of Independence would "be celebrated, by succeeding generations, as the great anniversary festival." However, Adams thought July 2nd would be the "big day", because that was when the Continental Congress voted for independence....in the typical style of politicians, it took two full days of debating to hammer out the details. Finally, on July 4th, the document was released to the public. And the rest, of course, is history.

Although it's not nearly as festive as fireworks, every year I download a copy of the Declaration of Independence and read it. The famous line we all recognize is "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

The passages that follow, however, often get forgotten, and for me they are a pleasant reminder about how my career as a lawyer is connected to the struggle for freedom they started so long ago. Part of the tyranny of King George involved his repeated attempts to limit the power of the courts, and also "For depriving us in many cases, of the benefits of Trial by Jury".

After their long battle for independence, the Colonists eventually established an independent court system, along with the right of everyone to a jury trial for criminal and civil cases...in other words, protection for everyone whose life, liberty, or property was at risk. For me, it is an honor to serve as an attorney, because we are vehicles for helping carry out the intent of that ancient document, one client at a time, and, when necessary, one jury trial at a time.

As part of your celebration today, I invite you take a few quiet minutes and read the text that started our revolution for freedom. Happy Independence Day.

New South Dakota Supreme Court Decision on Voluntary Statements

Wed, 01 Jul 2009 08:00:00 EST

Last week we talked about the protection the 4th Amendment gives you from warrantless searches by police officers. Now nothing has changed in that department, but what you might not know is that there are a certain set of events which trigger this 4th Amendment protection. In other words, there are certain circumstances where you aren’t protected from search and seizure.

On June 24, 2009, the South Dakota Supreme Court ruled in State v. Iversen that the stop and arrest of James Iversen was constitutional. Iversen was convicted of driving or controlling a vehicle with a prohibited blood alcohol level. What makes this case unique is that at the time of the stop, at 1:30 am, Iversen was in his parked pickup with his headlights off and his engine running. Because there had been some theft in the area recently, a police officer pulled his patrol car behind Iversen, and focused his spotlight on Iversen’s pickup. When the officer approached the truck, Iversen voluntarily rolled his window down. At this point the officer smelled alcohol, and initiated his arrest.

So why was the officer authorized to perform this arrest? Here was a man simply sitting in a parked car with his engine on. The SD Supreme Court ruled that, in fact, Iversen was free to leave at any moment. Because he voluntarily rolled his window down, he allowed himself to be questioned, giving the officer reasonable suspicion for an arrest. Remember, if you are not under arrest, you may leave without talking to police.

New US Supreme Court ruling on warrantless vehicle searches

Mon, 22 Jun 2009 08:00:00 EST

On April 21, 2009, the United States Supreme Court decided a very important case that directly affects your individual rights. Arizona v Gant establishes an important controlling precedent regarding police performing warrantless searches. This decision holds that the Fourth Amendment requires police officers to demonstrate an actual and continuing threat to their safety, or a need to preserve evidence related to the crime of the arrest in order to justify a warrantless search of a vehicle after the driver and occupants have been arrested and secured.

Many people mistakenly assume that if they are pulled over for any offense, including traffic violations, a warrantless search of their vehicle is fair game. This is simply not true. The Court has ruled that there are only certain, specific exceptions which allow a warrantless search of your vehicle. If you are pulled over for a traffic offense, like the suspended driver’s license of Rodney Gant, the police may need a warrant to search your vehicle. Remember, it is not rude to request a search warrant from a police officer; in fact it is your right as an American.

Driver Flees Five-Vehicle Crash in Rapid City, Alcohol & Speed Factors

Sun, 05 Feb 2012 08:00:00 EST

Before 2 p.m. on Sunday, January 15, 2012, a 1979 Monte Carlo crashed into a line of vehicles that had stopped at a red light at the intersection of Haines Avenue and Disk Drive, in Rapid City, South Dakota, shutting down the intersection until approximately 5:45 p.m. While traveling northbound on Haines Avenue, the Monte Carlo rear ended a stopped 2003 Toyota Sequoia, which then crashed into a 2008 Ford Focus that was traveling eastbound on Disk Drive and a 2009 Jeep Liberty stopped at a red light facing south on Haines Avenue. The Toyota Sequoia also struck a 2004 Subaru Forester head-on that had stopped at the light and was also facing south on Haines Avenue.

According to Lieutenant James Johns of the Rapid City Police Department, the driver of the Monte Carlo fled the scene on foot. The police are still looking for the driver and believe the driver to be 24 year old Seth Dismounts Thrice. Two passengers in the Monte Carlo, Telano War Bonnett, 21, and Rudolph Gabe, 28, both of Rapid City, suffered life-threatening injuries and were transported to Rapid City Regional Hospital. The driver of the Toyota Sequoia, Katrina Wagner, 36, of Rapid City, also suffered injuries and was taken to the hospital. All other drivers and passengers were treated at the scene. Based on the seriousness of the multi-vehicle crash, police believe Thrice also suffered serious injuries.

Police believe that alcohol and speed contributed to this crash; the motor vehicle accident remains under investigation.

Call the South Dakota car accident lawyers at Zimmer, Duncan & Cole if you have been involved in a motor vehicle crash. Call our offices toll free at (888) 733-2992.

I-90 South Dakota SUV Crash Claims Life of One and Injures Two

Sat, 04 Feb 2012 08:00:00 EST

On Wednesday, January 11, 2012, a fatal motor vehicle accident occurred on Interstate 90, approximately 1.5 miles west of Kimball, South Dakota. According to the South Dakota Department of Public Safety, the driver, Gregory D. King, 57, of Chamberlain, died when his 2002 Ford Explorer went out of control while he was traveling eastbound on I-90. King’s Explorer crossed over the median into the westbound lanes and crashed into a 2003 Ford Explorer.

King had a passenger with him in the vehicle, Patty-Ann King, 56, of Chamberlain, who was seriously injured in the motor vehicle accident. The driver of the 2003 Ford Explorer, Gary L. Rathke, 60, of Rapid City, also suffered serious but non-life threatening injuries in the motor vehicle wreck. Patty-Ann King and Rathke were taken to a local Chamberlain hospital for treatment; however, Gregory D. King died at the scene.

All three individuals involved in this fatal crash were wearing seatbelts.

We extend our deepest condolences to the family and friends of Gregory D. King who were impacted by this tragic motor vehicle crash. Our thoughts for a full recovery also go out to Patty-Ann King and Gary L. Rathke.

If you or a loved one has been involved in a motor vehicle crash, call a South Dakota car accident attorney at Zimmer, Duncan & Cole. Our team of experienced attorneys is here to listen to you and help you through these difficult times. Call the law offices at (888) 733-2992, with offices in Sioux Falls and Parker we are available to meet with you when you are ready.

Fatal Motor Vehicle Accident in Huron Claims Life of Pickup Driver

Sat, 26 Nov 2011 08:00:00 EST

A fatal motor vehicle accident occurred on Thursday, October 27, 2011, in Huron, South Dakota, when a pickup truck pulling a trailer, driven by Richard Anno Boomsma, 81, of Huron, crashed into a house in the 100 block of Fourth Street Northeast. According to Cory Borg, Public Information Officer, the pickup truck was traveling east on Highway 14, and at approximately 6:14 a.m. the vehicle crossed the westbound lane of traffic, crashing into the house. Sadly, Boomsma was pronounced dead at the scene.

According to Borg, while it is believed that medical reasons were the cause of this motor vehicle crash, alcohol was not a factor. Additionally, Boomsma was not wearing a seatbelt at the time of the accident.

Thankfully, the house was not occupied at the time the collision occurred.

The accident is currently under investigation by the Huron Police Department and the South Dakota Highway Patrol.

We extend our deepest condolences and thoughts of sympathy to the family of Richard Anno Boomsma.

If you have been injured in a motor vehicle crash, contact a South Dakota personal injury attorney at Zimmer, Duncan & Cole. Contact the office today at (888) 733-2992 to speak with an experienced South Dakota personal injury lawyer.

South Dakota Transportation Department Warns of Crashes with Plows

Tue, 22 Nov 2011 08:00:00 EST

According to a plan adopted by South Dakota's Transportation Commission, a new budget was passed this year increasing the amount of funding for plowing and de-icing for the upcoming 2011-2012 winter season. The new budget of $17.9 million is $1.1 million more than last year's budget, as the Department of Transportation exceeded last year's proposed budget by more than $1 million. According to Jason Humphrey, the Department of Transportation's Construction and Maintenance Engineer, the new budget has taken into consideration increased expenses for fuel and road-surface chemicals.

In addition, Humphrey has indicated that the Department of Transportation will focus on informing drivers that snow plows generally travel at only 30-35 miles per hour. In 2010 there were 38 accidents in South Dakota where operators of motor vehicles crashed into plow trucks. In 19 of these accidents the plow trucks were rear-ended, and in the other 19 accidents the plow trucks were sideswiped. According to reports, the primary issue is motor vehicle operators approaching plow trucks at too high a speed.

In 2010, certain state highways had to be repeatedly shut down due to high winds and snowfall. The Department's plans for the 2011-2012 year require state highways that have an average daily count of more than 1,000 vehicles to be 80 percent clear within 18 hours after the end of a weather event and highways with less traffic to be 80 percent clear within 36 hours of the end of a weather event.

At this time South Dakota's laws do not allow for variable speed limits that are dependent on weather conditions.

The treacherous South Dakota winter weather is coming for 2011, so do not take chances. If you or a loved one is in an accident, contact a South Dakota personal injury attorney at Zimmer, Duncan & Cole. Call the law office toll free at (888) 733-2992 or complete the contact form on this page.