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FIRST PREMIER BANK v. KOLCRAFT ENTERPRISES, INC.

Unified Judicial System

FIRST PREMIER BANK,
as Guardian Ad Litem and
Limited Conservator of
DANIEL L. BOONE,

Plaintiff and Appellant,
v.
KOLCRAFT ENTERPRISES, INC.,
a Delaware corporation,

Defendant and Appellee.

[2004 SD 92]

South Dakota Supreme Court
Appeal from the Circuit Court of
The Second Judicial Circuit
Minnehaha County, South Dakota

Hon. William J. Srstka, Jr., Judge

MICHAEL P. HEALY
Kansas City, Missouri

ROLLYN H. SAMP
Sioux Falls, South Dakota

JONATHAN K. VAN PATTEN
Vermillion, South Dakota

Attorneys for plaintiff and appellant.

MARK F. MARSHALL
MICHAEL L. LUCE of
Davenport, Evans, Hurwitz & Smith
Sioux Falls, South Dakota

CHARLES J. RISCH of
Lawrence, Kamin, Saunders & Uhlenhop
Chicago, Illinois

Attorneys for defendant and appellee.

Argued on October 8, 2003

Opinion Filed 8/18/2004


#22421, #22449

KONENKAMP, Justice

[¶1.] Litigants are ordinarily prohibited from disclosing to a jury a prior settlement “to prove liability for or invalidity of the claim or its amount.”  This prohibition, embodied in our rules of evidence, avoids prejudice to all parties and promotes settlements.  Here, defense counsel broached the fact of an earlier settlement made on plaintiff’s behalf.  Although the trial court had advised counsel not to offer evidence about this settlement until he ruled on the pending motion in limine, the court took the position that since remarks by attorneys are not evidence, neither side would be precluded from disclosing in their opening statements matters subject to pending motions.  Ultimately, the court granted plaintiff’s motion in limine, ruling that the prejudicial impact of the settlement evidence outweighed its probative value.  Yet the court nonetheless found that any prejudice created by the disclosure of the settlement in defense counsel’s opening statement did not warrant a new trial.  Because, in most instances, a prior settlement should not be disclosed to the jury by any means, the court abused its discretion in allowing counsel to reveal it in remarks to the jury.  This error, along with error in the jury instructions, impaired the plaintiff's right to a fair trial.  We affirm in part, reverse in part, and remand for a new trial.

Background

[¶2.] On January 12, 1992, Daniel Boone, age ten months, was severely burned while he was sleeping in a playpen in the children’s bedroom at his parents’ apartment.  Defendant Kolcraft Enterprises manufactured the pads for its “Playard” playpens using two types of polyurethane foam.  For customers in California, polyurethane treated with a fire retardant was used, as required by law.  For all other customers, non-treated foam was used.  After this incident, Kolcraft began using treated foam in all the pads it manufactured.

[¶3.] Peggy Boone first sued her landlord for her child’s injuries.  That matter settled.  Plaintiff, First Premier Bank, was later appointed the child’s guardian ad litem to pursue further legal action on the child’s behalf.  Its complaint alleged that the playpen was (1) defective and unreasonably dangerous in its design, or (2) defective and unreasonably dangerous because of a failure to warn.  Kolcraft moved for summary judgment before trial and a directed verdict at the close of the evidence, arguing that as a matter of law plaintiff could not prove that Kolcraft’s Playard proximately caused Daniel’s injuries.  The trial court denied both motions.

[¶4.] Before trial, both sides sought to exclude certain evidence by motions in limine.  The judge declined to rule on the motions until the parties were ready to offer evidence during trial.  In opening statements, with the court’s indulgence, both sides mentioned topics subject to these motions.  In other rulings, the court allowed testimony about the smoking habits of Daniel’s parents and their non-functioning smoke detector, and permitted the defense to introduce the mother’s earlier statement that a blanket was the origin of the fire.  The court, however, did not allow plaintiff to introduce evidence that Kolcraft began using fire retardant foam in all its playpen pads after the incident here.

[¶5.] After a three-week trial, the jury found against plaintiff.  The trial court denied plaintiff's motion for a new trial.  On appeal, plaintiff advances manifold assignments of error with multiple subparts.  Because not all these issues merit discussion, we address the following:  (1) Whether plaintiff is entitled to a new trial because defense counsel disclosed to the jury in his opening statement that the injured child’s mother had settled a suit for the same injuries against the family’s landlord several years earlier.  (2) Whether the trial court abused its discretion in allowing testimony and argument that careless cigarette smoking could not be ruled out as a source of ignition for the fire.  (3) Whether the court erred in instructing the jury that it could infer that missing evidence would not have been favorable to plaintiff.  (4) Whether the court erred in not giving definitions of “defective condition” in the disjunctive.  (5) Whether the trial court erred when it refused to give the jury a limiting instruction on the use of prior inconsistent statements, thus allowing Kolcraft to use the statement as substantive evidence.  (6) Whether the trial court erred in excluding evidence of Kolcraft’s subsequent remedial measures on the ground that this evidence would “unduly delay” the trial.  (7) Whether the trial court erred in allowing Kolcraft to raise the issue of a nonfunctioning smoke detector without proper foundation and to argue what was, in effect, a contributory negligence defense.  On notice of review, Kolcraft asserts that the trial court erred when it denied its motion for a directed verdict on the question whether Kolcraft’s Playard was the proximate cause of Daniel’s injuries.

I.

Disclosure of Prior Settlement

[¶6.] Plaintiff seeks a new trial because Kolcraft violated an order in limine excluding evidence of a prior settlement.  During Kolcraft’s opening statement, defense counsel advised the jury that plaintiff had settled with the Boone family’s former landlord several years earlier.  Our standard of review is set forth in Schuldies v. Millar, 1996 SD 120, ¶8, 555 NW2d 90, 95 (citation omitted):

            Whether a new trial should be granted is left to the sound judicial discretion of the trial court, and this Court will not disturb the trial court’s decision absent a clear showing of abuse of discretion. . . .  We determine that an abuse of discretion occurred only if no judicial mind, in view of the law and the circumstances of the particular case, could reasonably have reached such a conclusion.

The abuse of discretion standard also governs a denial of a motion for mistrial based on a violation of an order in limine.  Joseph v. Kerkvliet, 2002 SD 39, ¶7 n1, 642 NW2d 533, 535 n1.  To justify a new trial for a violation of such an order, the order must have been specific and the violation clear.  Harter v. Plains Ins. Co., Inc., 1998 SD 59, ¶31, 579 NW2d 625, 633.  In addition, the violation must have been prejudicial.  Id. ¶32.

[¶7.] Motions in limine are ordinarily heard in advance of trial; they seek a court order requiring parties, attorneys, and witnesses not to disclose “certain facts unless and until permission of the court is first obtained outside the presence and hearing of the jury.”  Kjerstad v. Ravellette Publications, Inc., 517 NW2d 419, 426 (SD 1994) (quoting Lapasinskas v. Quick, 170 NW2d 318, 319 (Mich 1969).  Evidentiary rulings made by a trial court during motions in limine are preliminary and may change depending on what actually happens in trial.  Luce v. United States, 469 US 38, 41, 105 SCt 460, 463, 83 LEd2d 443 (1984).  The purpose of the motion “is to prevent prejudicial evidence from reaching the ears of the jury.”  Id.  As we noted in Kjerstad, when prejudicial matters are brought before the jury, objections or instructions can never entirely remove the harmful effect.  Depending on the nature of the motion, a court may delay ruling because of a lack of sufficient facts on which to base a decision or because it is unable to predict the effect of its ruling on the trial.  However, if the court reserves its ruling, it must then decide how it is going to handle possible mention of the subject matter during jury selection and opening statements.  Once the subject is broached, “the harm is done.”  Kjerstad, 517 NW2d at 426 (quoting Lapasinkas, 170 NW2d at 319).

[¶8.] Here, before trial, both parties submitted numerous motions in limine.  During a pretrial motions hearing, the judge set forth his policy concerning rulings on the pending forty-five motions:

I want to tell you about my rulings on these motions in limine, and that is that there aren’t going to be any rulings. . . .   [I]n order to rule on them I think [I] have got to hear evidence, so I’m not going to rule on them until the time comes.  And so before you would present that evidence, you’re going to approach me and we’ll have a hearing outside of the presence of the jury with the witness on the stand and we'll take whatever evidence we need. . . .[1]

Kolcraft’s attorney attempted to clarify the instruction:

            [C]orrect me if my understanding is not accurate – that if any of these issues covered by the motions in limine before we make any comments in terms of a question or statement or solicit any type of testimony from a witness, counsel is required and has the obligation, whichever side, to first come up. . . .” 

Citing SDCL 15-14-1, the judge responded, “With the exception of the opening statement, and the opening statement is what you intend to prove.”[2]  There, the confusion began.

[¶9.] After vigorous disagreement by Kolcraft’s counsel, the judge gave the parties his ruling:

            [I]n this kind of case with all of these motions in limine, if I have to rule on the opening statement, that is just intolerable.  I’m just not going to blue pencil any opening statement.  You lawyers know probably in your heart of hearts what is going to come in and what isn’t.  All right.  And if you get yourself backed in a corner where you admit stuff that is later going to be a mistrial, that’s too bad.  So be it.  I’m not afraid to grant a mistrial.  I want you to understand that.  And so as far as I’m concerned, anything you want to say in the opening statement is fine.

(Emphasis added.)  Kolcraft’s counsel pressed the issue:

            But again on a lot of these motions in limine, virtually all of them, I think to permit any comment about some of these evidentiary matters that are irrelevant and would be . . . extremely prejudicial to even comment about, defeats the purposes of the motions in limine.  And I would again object to any references to any of the areas covered by the motions in limine in opening statement. 

[¶10.] Plaintiff’s counsel then entered the debate, “My reading of [SDCL 15-14-1] says that the judge — it basically says you really shouldn’t make reference to particular names or exhibits unless the judge lets you.”  He then attempted to clarify the ruling:

            [J]ust so I’m clear, the defendants have really filed a motion in limine on about everything.  Some of them – well, we don’t think any of them have any merit, to be honest with you, but if I was – I want to make sure that I understand.  I can go through in opening statement, I can describe the facts?  That’s the function of opening statement, as I understand it, so that the jury can anticipate – you know – the flow of evidence, because the evidence might come in in an irregular fashion.  And then when we get on to putting on evidence, before any particular witness starts discussing any of the matters that are in the motions in limine, we’re to come and approach the bench, tell the judge that we anticipate that this witness is going to start talking about.

Kolcraft’s counsel again voiced his opposition:

            [T]he whole purpose of our motion in limine is not just to prevent the testimony, because you can always object before the witness gives the answer.  The whole purpose and fundamental concept behind a motion in limine is to prevent a comment, the question, or the statement by counsel, because in a lot of issues just talking about it without evidence still plants that in the minds of the jury.  And that’s the reason for the motions in limine. . . . [A]nd to permit comment on motions in limine that are pending is prejudicial and improper, inconsistent with the rule.

[¶11.] The judge responded, “I thought [plaintiff’s counsel] stated after opening statements are done and before you call any witness that has a motion in limine, we’re going to have a hearing outside of the presence of the jury.”  To which plaintiff’s counsel replied:

            That is my understanding.  But, judge, as far as opening statement goes — I mean, I guess, in opening statement — you know — I’m trying to recall the specific motions, some that they have filed — but opening statement is not evidence.  The judge instructs the jury that the statements of counsel are not evidence.  We all know that if we make promises in opening statement that are not fulfilled in the evidence, that that will turn around and bite us at closing – at the time of closing argument.  But here is the concern that I have:  as I said, the defendants have filed a motion in limine on about everything.  If I was to strictly stay away from everything they have talked about, they will have effectively eviscerated my opening statement. . . .  And I don’t think that is what opening statement is about.  It’s not evidence.  We can come here and we ought to be able to talk. . . .  And so I want to – I think the correct approach is let the parties make their opening statements, stay within the boundaries of the statute as far as references to names and exhibits, then when it comes to evidence, before any actual evidence is put on, we approach the bench, we say that this is a topic that is arguably covered by a motion and address it at that point in time.  I don’t see any other way to have the procedure occur other than just both parties waving opening statement, which I think would be a great disadvantage and disservice to the jury.  And I think that’s the law.

Finally, Kolcraft’s attorney restated his opposition, summed up the judge’s order, and tried to explain the problem as he saw it:

            To permit – again, the whole fundamental concept, to permit counsel – and that’s what he wants to do and he’s making it very clear by this argument – is he wants to be able to comment on things to the jury that may not be admissible evidence.  And again, the motions in limine, just like questions of counsel, are not evidence.  It’s the testimony that is evidence.  He wants to be able to introduce things for the jury to hear about that may not be admissible in evidence, and unless the court is willing to rule on the motions in limine prior to opening statement, the only way that it can be done with any record protection and any satisfactory result for either side, is for the attorneys in opening statements to follow the rule, and also with relationship to all of the motions in limine, not comment on those items that are covered by the motions in limine.  The alternative is, [plaintiff’s counsel] is going to comment on things that are very—for the reasons we’ll urge on our motions in limine – are significant issues that need to be addressed, that we do not believe it’s proper evidence, and to get the jury to hear that, where the evidence has not been ruled on, is improper.  It puts me in a horrible position of:  do I stay quiet, or do I have to respond in turn just so that the jury hears both sides of these issues relating to evidence that we do not believe will be admissible?  And again, it defeats the whole purposes of motions in limine to permit counsel to comment on it.

[¶12.] After plaintiff’s opening statement, Kolcraft moved for a mistrial because plaintiff’s counsel disclosed matters covered in pending motions in limine.[3]  In denying Kolcraft’s motion, the trial court reasoned:

            What the attorneys say is not evidence.  I already instructed. . . . I will give wide latitude to both sides on final argument, that you know they stated they were going to show this on the opening statements.  They didn’t show it, so you can take that into consideration, and I will give any special instruction in that respect that anybody requests that fits within the law. . . .

At the close of Kolcraft’s opening statement, counsel stated:

            You’ll hear testimony that the fire occurred on January 12 of ’92 and in 1995, Mrs. Boone, on behalf of her child, sued the landlord for those injuries and damages and settled that case with the landlord and two years later after doing that in late 1997, nearly six years after this fire occurred. . . .[4]

[¶13.] Plaintiff now contends that the judge’s order “specifically directed counsel not to mention the settlement until a definitive ruling.”  We need not tarry for long on this point.  True, the court prohibited counsel from offering evidence on matters not yet ruled on.  But the court made an exception for opening statements, leaving the field open for the attorneys to comment on whatever they chose.  At best, the court’s ruling was equivocal; at worst, it was an open invitation to disclose “anything” to the jury.  Therefore, in that the order was inexplicit, we cannot say that the prohibition was clear.  In fact, it was Kolcraft’s counsel who argued most vigorously for a prohibition on commenting on matters subject to pending in limine motions.  As one of Kolcraft’s attorneys explained at oral argument, they “pleaded” with the judge to make a ruling on the motions.  Regardless of the soundness of its reasoning, the court simply did not prohibit Kolcraft’s counsel from mentioning the prior settlement during his opening statement.  Nonetheless, having concluded that Kolcraft did not violate an in limine order, we believe it is necessary to examine the court’s decision to defer ruling on all motions in limine, effectively allowing disclosure of the settlement.  Before we can reach this more consequential issue, however, we must first address whether plaintiff sufficiently preserved a record for appeal.

[¶14.] Kolcraft’s attorney contends that plaintiff should be estopped from proceeding on this issue because plaintiff invited the error.  It was plaintiff’s counsel who argued that he should be allowed to bring up matters in opening statement that remained to be decided.  Yet, plaintiff’s counsel, like defense counsel, faced a fait accompli with the court’s ruling that it would not decide in limine motions before the actual time for introduction of evidence.  And it was the trial judge who first announced that the attorneys could divulge matters in opening statements that were awaiting the court’s later ruling.  Plaintiff’s counsel feared making an opening statement “eviscerated” of content if he could not mention any subject covered by all the pending in limine motions.  We think that with the trial court’s policy, counsel faced a dilemma for which he should not now be punished in having chosen the least of two untenable solutions.  The issue was not waived by estoppel.

[¶15.] Whether plaintiff properly objected is a more troublesome question.  Plaintiff did not expressly frame any “objection.”  The record reflects that when Kolcraft’s attorney disclosed the prior settlement to the jury, plaintiff’s counsel approached the bench and asked to make a record.  Outside the presence of the jury, plaintiff’s counsel then protested that the court’s in limine order had been violated and asked that Kolcraft be sanctioned.  We have already resolved that there was no violation.  Plaintiff did not ask for a mistrial.  In denying the request for a sanction, the court again reiterated its position that what counsel broached to the jury was not evidence and would not be precluded.

[¶16.] Alert practitioners must remain conscious to the danger of failing to make an adequate record at trial when a motion in limine has been earlier granted or denied.  Cf. Joseph v. Kerkvliet, 2002 SD 39, ¶7, 642 NW2d 533, 535 (advising that when a motion in limine has been sustained an offer of proof should be made at trial to make sure that appeal rights are preserved).  We have adhered consistently to the precept that, in the absence of an objection or an offer of proof during trial to the admission or refusal to admit challenged evidence, an appeal from a ruling on a motion in limine is waived.  Id.  The rationale for requiring either an objection or an offer of proof is to permit trial judges an opportunity to reconsider in limine rulings with the benefit of having observed unfolding trial events.  See Luce, 469 US at 41-42, 105 SCt at 463.

[¶17.] A more anomalous problem arises here, however, in a situation where the court neither granted nor denied the motions, but nonetheless permitted counsel unrestricted disclosure of injurious material.[5]  We have warned often enough that arguments not raised in circuit court cannot be asserted for the first time on appeal.  But here the issue was thoroughly argued below, and even if a proper objection was not made, the court made a deliberate decision to defer its rulings and allow these comments.

[¶18.] We think this is one of those rare instances for invoking the plain error doctrine in a civil appeal.  Cf. Wuest ex rel. Carver v. McKennan Hosp., 2000 SD 151, ¶¶35-36, 619 NW2d 682, 691.  What value does an in limine motion have if, while postponing a decision, the court permits highly prejudicial information to be disclosed to the jury?  Although plain error is more often invoked in criminal cases, our rules also allow for its use in civil cases.  SDCL 19-9-6 (Rule 103(d)).[6]  Granted, this Court has written that the plain error rule applies only to criminal procedure and is inapplicable in civil cases.  Mayrose v. Fendrich, 347 NW2d 585, 586 (SD 1984).  For authority, however, the Mayrose Court only referred to the criminal counterpart to the civil plain error rule and omitted citing SDCL 19-9-6 (Rule 103(d)).  As South Dakota’s Professor Larson argues, “this position is in conflict with the Court’s own rule, and a refusal to correct even blatant error in a civil case is contrary to the overall sprit of the rules, as expressed in SDCL 19-9-2 (Rule 102), that 'truth may be ascertained and proceedings justly determined.’”  John W. Larson, South Dakota Evidence § 103.10[2] (Michie 1991).  Mayrose is overruled on this point.

[¶19.] Under the plain error rule, those claiming error bear the burden of showing that the error was prejudicial.  State v. Nelson, 1998 SD 124, ¶8, 587 NW2d 439, 443 (citation omitted).  Nelson was a criminal case, but the process for examining plain error is the same.  “Plain error” requires (1) error, (2) that is plain, (3) affecting substantial rights; and only then may we exercise our discretion to notice the error if (4) it “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.”  Id.  We invoke the plain error rule in criminal cases only in “exceptional circumstances.”  Id.  Because life and liberty are not at stake in civil tort actions, we will invoke the rule even more cautiously in such cases.  Nonetheless, “while the doctrine may be rarely applied even where recognized, to say 'never’ may well invite ridicule of the entire judicial system due to a ludicrous result in a given case.”  Larson, South Dakota Evidence § 103.10[2].  We think such a circumstance exists here.  A process that allows unrestricted disclosure to a jury of prohibited matters seriously affects the fairness, integrity, and public reputation of judicial proceedings.

[¶20.] We turn to the question whether allowing mention of the previous settlement warrants a new trial.  In Degen v. Bayman, 86 SD 598, 607, 200 NW2d 134, 139 (1972), this Court wrote that although it could “visualize no circumstances where the amount involved in a release or covenant need be disclosed to the jury,” whether the simple disclosure of a settlement should be permitted would be left to the discretion of the court.  Degen approved disclosure of a settlement in order to avert collusion between the parties.  Not that Degen was wrongly decided in 1972, but it now must be considered in light of the later adoption of the Federal Rules of Evidence in 1978.  Today, admission of compromise or settlement evidence is governed by the provisions of SDCL 19-12-10 (Rule 408), which states in part:

Evidence of . . . (2) accepting . . . a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. . . .  This section also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, [or] negativing a contention of undue delay. . . .

[¶21.] This rule is designed to encourage out-of-court resolution of disputes.  It forbids admission of a settlement or settlement negotiations “to prove liability for or invalidity of the claim or its amount.”  SDCL 19-12-10 (Rule 408); Kjerstad, 517 NW2d at 427.

Withholding information or evidence of such a settlement . . . from the jury . . . (1) focuses the jury on the crucial questions of liability and full compensation, (2) prevents the jury from being confused or misled by its knowledge of the settlement . . . , and (3) promotes fair verdicts that are consistent with the evidence presented.

Holger v. Irish, 851 P2d 1122, 1134 (Ore 1993) (Unis, J. concurring).  In sum, a defendant cannot establish the invalidity of a plaintiff’s claim by proof of the plaintiff’s settlement with a third person, nor can a plaintiff show a defendant’s liability by proof of a defendant’s settlement with a third person.  See Cleere v. United Parcel Service, 669 P2d 785, 790 (OkCtApp 1983) (citations omitted).

[¶22.] Compromises may be admissible for “another purpose,” however, such as proving the bias or prejudice of a witness, or negativing a contention of undue delay.  SDCL 19-12-10 (Rule 408); see Corn Exchange Bank v. Tri-State Livestock Auction Co, Inc. 368 NW2d 596 (SD 1985) (if defendant stands to gain financially from plaintiff’s verdict by increasing liability of codefendant, jury may be informed of settlement agreement); Degen, 200 NW2d at 139 (settlement cannot be used for collusive advantage); Roso v. Henning, 1997 SD 82, ¶13 n3, 566 NW2d 136 (SD 1997) (settlement discussions admitted to show defendant had made an appearance and had not defaulted).

[¶23.] As Justice Unis of the Oregon Supreme Court pointed out in interpreting the same rule, “when evidence of a compromise or settlement is offered for 'another purpose,’ it must . . . satisfy all of the other rules of evidence.”  Holger, 851 P2d at 1132 (Unis, J. concurring).  This is because SDCL 19-12-10 (Rule 408) states that it “does not require exclusion,” implying that other rules of evidence may.  To be admissible, evidence of a settlement offered for “another purpose” must be relevant under SDCL 19-12-1 and 19-12-2 (Rules 401 and 402).  Id.  And, considering the reason for which it is offered, if the probative value of this evidence is substantially outweighed by the danger of unfair prejudice, or the other factors listed in SDCL 19-12-3 (Rule 403), the trial court may, in its discretion, exclude the evidence.  Id.

[¶24.] In explaining its reasons for wanting the prior settlement in evidence, Kolcraft’s attorney argued to the trial court that the Degen decision makes such settlements admissible and that the pleading in the earlier complaint against the landlord was an admission against interest and a prior inconsistent statement.  These reasons are insupportable.  First, as we pointed out, Degen was a pre-federal rules case, and it dealt with the collusive use of a settlement to mislead a jury.  Kolcraft does not contend that any collusion was afoot here.  Second, whatever merit the remaining contentions have, they disregard the overarching purpose of SDCL 19-12-10 (Rule 408), to make inadmissible such settlements to disprove “liability for or invalidity of the claim or its amount.”  That impermissible purpose was precisely how Kolcraft wanted to use the settlement:  to show that because there had been a previous claim against another tortfeasor (the landlord), the settlement proved the invalidity of the plaintiff’s claim against Kolcraft.  Rule 408 plainly forbids this.  SDCL 19-12-10 (Rule 408).  See also Pounds v. Holy Rosary Medical Center, 872 P2d 437, 439 n3 (OrCtApp 1994)(admission of pleadings in settled case would swallow the rule excluding evidence of settlement).

[¶25.] Kolcraft believes that if it was error to allow disclosure of the settlement, the error was not prejudicial:  “the jury never got to the issue of damages because it concluded the product was not defective.”  The verdict form, however, only indicates that the plaintiff “did not prove [the] claim[s].”  The jury could have considered the settlement as proof that the settling tortfeasor was the culpable party and that Kolcraft’s allegedly defective product was not the proximate cause of the injury.  Holger, 851 P2d at 1134  (new trial ordered when judge informed jury of third party settlement and later told jury to disregard it).  Thus, even if the jury never reached the issue of damages, improper disclosure of a prior settlement was prejudicial to proving liability.  See Foxworth v. Emanuel Hospital & Health Center, 883 P2d 917, 917-18 (OrCtApp 1994).

[¶26.] The trial judge’s distinction between disclosure in opening statements and disclosure by formal evidentiary admission ignored the essential purpose of motions in limine.  These motions seek to preclude any disclosure, not simply evidentiary admission.  As we said in Kjerstad, a motion in limine “asks the court to instruct the [party], its counsel and witnesses not to mention certain facts unless and until permission of the court is first obtained outside the presence and hearing of the jury.”  Kjerstad, 517 NW2d at 426.  In Kjerstad, the offending information was conveyed by counsel’s questions.  Id.  Trial courts have the duty in jury cases to conduct proceedings, “to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.”  Id. (quoting SDCL 19-9-5 (Rule 103 (c))) (emphasis added).  See also Brandt v. Wand Partners, 242 F3d 6, 20 (1stCir 2001) (applying Rule 408 to disclosure by argument of counsel but finding in that instance that rule had not been violated).

[¶27.] Under the facts of this case, the circuit court should have precluded any mention of the prior settlement.  Its failure to do so was an abuse of discretion.  The jury’s duty was to decide whether Kolcraft was liable for Daniel’s injuries and, if so, to find damages.[7]  Informing the jury of an earlier settlement seriously prejudiced plaintiff’s right to a fair trial.  A new trial may be granted for “[i]rregularity in the proceedings of the court, jury, or adverse party or any order of the court or abuse of discretion by which either party was prevented from having a fair trial. . . .”  SDCL 15-6-59(a)(1).  Plaintiff is entitled to a new trial.

II.

Definitions of Defective Condition

[¶28.] Plaintiff contends that the trial court’s instructions defining defective condition were conflicting and confusing, and thus, they created prejudicial error.  The trial court’s Instruction 30 defined defective condition:

            A product is in a defective condition and unreasonably dangerous to the user if it is not reasonably fit for the ordinary and reasonably foreseeable purposes for which it was sold or manufactured and expected to be used.

            A product is in a defective condition unreasonably dangerous to the user if it could have been designed to prevent a foreseeable harm without significantly hindering its function or increasing its price.

            A product can be dangerous without being unreasonably dangerous.  Even if a product is defective in some manner, you must find that the defect renders the product “unreasonably” dangerous.  A product is not in a defective or unreasonably dangerous condition merely because it is possible to be injured while using it.

South Dakota Pattern Jury Instructions 150-02-1 and 150-02-2 set forth the defective condition definition and risk/utility test.[8]

[¶29.] We agree that the instruction, as given, without further guidance, was confusing.  It should have been framed in the disjunctive.  It describes two different definitions of a defective condition, but recites them without informing the jury that the plaintiff need only prove one.  In fact, the pattern jury instructions from which the court’s instruction was taken lists these definitions separately.  The court, on its own, decided to combine the instructions, leaving out the disjunctive.  This was error.  Accordingly, on the errors in allowing disclosure of the prior settlement and in failing to instruct on defective conditions in the disjunctive, the case is reversed and remanded for a new trial.

[¶30.] Although we need not reach all of plaintiff’s remaining assignments of error, we proceed to decide some of them because they will undoubtedly arise in the next trial.

III.

Cigarette Smoking Evidence

[¶31.] Plaintiff argues that the trial court erred in permitting the jury to hear expert testimony about smoking and cigarette disposal in the home as a possible origin of the fire.  Peggy Boone smoked a pack and a half of cigarettes a day.  Both Peggy and Ken Boone were smoking in the home on the day of the fire.  As Kolcraft points out, “Improper disposal of cigarettes was . . . a way of life in the Boone household.  Photographs showed extensive smoking, overflowing ashtrays, and the improper disposal of cigarettes on windowsills and on floors.”  Terry Flakus, the Fire Inspector for Sioux Falls, ruled out cigarettes altogether as an ignition source because he could not find any cigarette butts in the children’s bedroom after the fire, and the burn characteristics were inconsistent with a cigarette ignition.  Thus, plaintiff asserts that no reliable foundation existed from which Kolcraft’s expert, Robert Wargin, could state that careless cigarette smoking could have been the cause of the fire.

[¶32.] Initially, plaintiff believes that Wargin’s analysis was based on the faulty foundation of cigarette smoking.  That cigarette smoking could have been the cause of the fire was the result of his analysis, not the foundation of his analysis.  Wargin studied the burn patterns and other evidence and concluded that the point of origin for the fire was not the Playard, but some item within the playpen.  Based on this conclusion, he could not rule out cigarette smoking as a cause of the fire.  He found that the fire originated inside the playpen.  In examining the Playard, he concluded that the playpen pad and fiberboard bottom showed that the fire was from the top down and not from under the playpen.  Major fuel material for the fire consisted of pillows, a quilted comforter, a blanket, and clothing draped over the playpen.  He believed that the urethane foam inside the playpen pad was not responsible for the spread of the fire.  Less than thirty percent of both the pad and fiberboard bottom were consumed in the ten-minute fire.  Finally, he deduced, through “process of elimination, the dropping of a cigarette or knocking off of cigarette ash when Daniel was placed in the Playard is the most likely cause of the fire.”  In sum, Wargin declined to begin and end his analysis on Inspector Flakus’s premise that cigarette smoking was not the cause.  Wargin was free to do so, and Kolcraft was free to present his opinion because there were sufficient facts to support it.  SDCL 19-15-3 (Rule 703).

[¶33.] Plaintiff next contends that Wargin’s testimony did not suffice to prove proximate cause.  Plaintiff, not Kolcraft, had the burden of proving proximate cause.  Wargin’s testimony was offered to refute plaintiff’s claim that the Playard was the source of the fire.  Under the Daubert analysis, could Wargin have properly based his opinion on evidence of smoking in the Boone apartment?  Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579, 113 SCt 2786, 125 LEd2d 469 (1993).  In Daubert, the question was whether a plaintiff’s expert could testify when the methodology used was not generally accepted.  Id.  The Daubert Court reasoned that “[p]roposed testimony must be supported by appropriate validation – i.e., 'good grounds,’ based on what is known.”  Id. at 590.  “The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.”  Id. at 595.  As part of its rationale for accepting expert scientific opinion not based on generally accepted methodology, the Court stated that “vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”  Id. at 595-96.  The Court further reasoned, “These conventional devices, rather than wholesale exclusion under an uncompromising 'general acceptance’ test, are the appropriate safeguards where the basis of scientific testimony meets the standard of Rule 702 [SDCL 19-15-2].”  Id.  Wargin’s testimony fits squarely within the Supreme Court’s “traditional and appropriate means” of assailing plaintiff’s expert testimony.

[¶34.] Plaintiff would seemingly have us declare that one expert’s opinion is invulnerable.  Plaintiff argues that because other experts did not draw a definitive conclusion about the origin of the fire, one defense expert must be precluded from testifying on other causes of the fire.  By his own testimony, Inspector Flakus must have initially considered the possibility of a cigarette causing the fire.  He conducted a layer search of the burned area.  During this search he attempted to locate possible causes.  He stated that he did not find a cigarette butt; therefore, he believed careless cigarette disposal did not start the fire.  Wargin did not stop with that hypothesis.  He did not have the benefit of searching the area immediately after the fire.  However, this does not mean that he had to accept all of Inspector Flakus’s conclusions based on that search.  He was free to use his expertise to reach his own conclusions.  To Wargin, the absence of a cigarette butt only proved that a cigarette butt was not found.

[¶35.] Plaintiff argues that SDCL 19-15-3 precluded Wargin’s opinions from being introduced because his opinions were too remote from the known facts.  SDCL 19-15-3 (Rule 703) provides:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing.  If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. 

The Daubert Court explained Rule 703:  “Expert opinions based on otherwise inadmissible hearsay are to be admitted only if the facts or data are 'of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.’”  509 US at 595, 113 SCt at 2797-98.

[¶36.] Here, the statute allowed Wargin to base his opinion on the fact that the Boones smoked, whether their smoking habits were admissible as evidence or were inadmissible hearsay.  The only qualification is that the fact must be reasonably relied upon by other experts in the field.  Surely, the fact that the residents of the apartment smoked is a reasonable basis from which to infer that smoking may have caused a fire.  This inference is no less reasonable than an inference drawn by Flakus that smoking could not have caused the fire because there was no evidence of smoking in a particular room despite evidence of smoking everywhere else in the apartment.

[¶37.] Plaintiff states that “[n]either Wargin nor Flakus nor Kennedy asserted that other experts in the field relied upon these kinds of facts.”  On its face, the contention that Wargin could not base his opinions on the fact that the Boones smoked defies common sense.[9]  Because these experts did not testify on the subject does not suggest that an expert could not rely on such facts.  In sum, Wargin’s opinion was not remote from the known facts.

[¶38.] Plaintiff misconstrues our holding in First Western Bank Wall v. Olsen, 2001 SD 16, 621 NW2d 611.  Plaintiff portrays our holding as “the threshold for admissibility of the appraiser’s opinions was his use of reliable facts and data in evidence, his adherence to generally accepted valuation principles and his use of an accepted scientific method of valuation.”  (Emphasis added.)  Our holding in that case announced no such threshold.  The actual holding of First Western Bank Wall states, “After reviewing [the] expert testimony, it is clear that [the] opinions as to valuation were relevant and based on generally accepted valuation principles.  Use of these generally accepted principles is sufficient to establish admissibility under Kumho and Daubert.”  2001 SD 16, ¶10, 621 NW2d at 616 (emphasis added).

[¶39.] We agree with plaintiff’s assertion that the situation here is almost identical to that in Weisgram v. Marley Co., 169 F3d 514 (8thCir 1999).  In Weisgram, a fire investigator testified that:

[H]e had considered whether careless smoking might have started the fire in the sofa, but he rejected that possibility because he saw no smoking materials in the home and because he did not think the burn pattern in the sofa indicated that the fire began as the result of careless smoking.

Id. at 518 (emphasis added).  Instead, the investigator believed that a faulty baseboard heater caused the fire.  Id.  The defense, however, posed a different theory.  Their experts reasoned, “At some time that night, [the occupant] dropped a lighted cigarette behind a cushion of the sofa, which eventually started a smoldering fire.”  Id. at n4.  The only evidence of cigarette smoking was the testimony of a witness who had seen the deceased “drink an alcoholic beverage and smoke a cigarette before he left.”  Id. at 516.  While the court did not adopt the defense version of events, the scenario advanced by the defense was permitted to stand.  Id. at n4.  In comparing Weisgram with our case, we find substantial similarities.  In both cases, the defense proposed theories that the fire might have been started by careless cigarette smoking.  In neither case did the fire investigator find evidence of careless cigarette smoking in the area of the fire.  However, there is at least one difference worthy of note.  In Weisgram, the inspector failed to find any evidence of smoking in the home.  Here, there was ample evidence and testimony that cigarette smoking was occurring in the home.

IV.

Spoliation of Evidence

[¶40.] Plaintiff asks whether the trial court erred in permitting a spoliation instruction that allowed the jury to draw an adverse inference based on the loss, by plaintiff, of two pieces of evidence.  “Under our standard of review, we construe jury instructions as a whole to learn if they provided a full and correct statement of the law.”  State v. Frazier, 2001 SD 19, ¶35, 622 NW2d 246, 259 (citations omitted).  If, as a whole, the instructions misled, conflicted, or confused, then reversible error occurred.  State v. Moschell, 2004 SD 35, ¶54, 677 NW2d 551, 567 (citations omitted).  The party charging that an instruction was given in error has the dual burden of showing that the instruction was erroneous and prejudicial.  Id.  An erroneous instruction is prejudicial if in all probability it produced some effect upon the verdict and is harmful to the substantial rights of the party assigning it.  Carpenter v. City of Belle Fourche, 2000 SD 55, 609 NW2d 751.  As we explained in Carpenter, our rule on harmless error is found in SDCL 15-6-61:

No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.

[¶41.] We conclude that the court should not have given the instruction.  There was no showing that the evidence was unavailable because of bad faith or intentional conduct on the part of plaintiff or someone acting on plaintiff's behalf.  In fact, a defense expert examined the missing evidence before it disappeared and defense experts had photographs available to use in place of the actual evidence.

[¶42.] In State v. Engesser, 2003 SD 47, 661 NW2d 739, decided a year after the trial in this case, we covered how a court should determine when a spoliation instruction is warranted.  Generally, such an instruction should not be given unless there is evidence that the missing material was disposed of intentionally or in bad faith.  There was no evidence of that here.

V.

Mother’s Statement to Medical Providers

[¶43.] Plaintiff argues that the trial court erred by refusing to give a limiting instruction on the use of prior inconsistent statements and improperly allowed Kolcraft to use the statement as substantive evidence.  In her direct examination, Peggy Boone stated that she did not actually see the fire in the bedroom and did not know how it started.  On cross examination, however, she was asked:

Q:  Mrs. Boone have you ever told anyone how you think the fire started?

A:  Yes, I have.

Q:  What have you told people about how you think the fire started?

A:  I thought a blanket must have started on fire.

Q:  Who did you tell that to?

A:  I believe someone at Shriner’s Hospital and maybe John Sivesind.

Her original statement to this effect was apparently recorded on a hospital record.  Kolcraft was aware of the statement made by Peggy and wanted to use it to impeach her testimony.  After a hearing, Kolcraft agreed that it would ask only three questions as framed and drafted by plaintiff’s counsel.  Nonetheless, plaintiff interposed a timely objection to this line of questioning.

[¶44.] Plaintiff contends that Peggy’s statements were not admissible as extrinsic evidence of a prior inconsistent statement under SDCL 19-14-25 (Rule 613(b)) or an exception to the hearsay rule under SDCL 19-16-32 (Rule 804(b)(3) (statement against interest).  Assuming for argument’s sake that this evidence is hearsay, we conclude that it falls within the medical records exception.

“Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment [are admissible evidence].”  SDCL 19-16-8 (Rule 803(4)).  Such statements need not refer only to a declarant’s physical condition.  4 J. WEINSTEIN & M. BERGER, WEINSTEIN’S EVIDENCE P 803(4)[01] 1988.  Statements made for purposes of diagnosis or treatment relating to someone else may also be admissible:  “The relationship between declarant and patient will usually determine admissibility.”  Id.  In the case of a child, statements made by parents and guardians on the child’s behalf are assumed reliable and thus are admissible.  Id.

VI.

Subsequent Remedial Measures

[¶45.] To show that the product was defective at the time Daniel was burned in 1992, plaintiff offered evidence that Kolcraft began using fire retardant treated foam in all its Playard pads in 1993 or 1994.[10]  The trial court disallowed this evidence on the ground that it would cause “undue delay” under SDCL 19-12-3 (Rule 403).  Plaintiff believes that the trial court abused its discretion in excluding evidence of these remedial measures.  To plaintiff, this type of evidence is “highly probative” and should only be excluded under narrow circumstances not present here.  SDCL 19-12-9 (Rule 407) provides:

            When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event.  This section does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

[¶46.] In sum, the general rule is that subsequent remedial measures are not admissible as evidence.  This Court has nonetheless allowed evidence of subsequent remedial measures in strict products liability actions.  Shaffer v. Honeywell, Inc., 249 NW2d 251, 257 n7 (SD 1976) (drawing distinction between negligence actions and strict liability actions).  A pre-federal rules case, Shaffer deduced that while proof of such measures is not permitted in negligence actions, post-accident safety measures are admissible as evidence in strict liability cases.  The issue arose again after the Federal Rules of Evidence had been adopted in South Dakota.  Yet, without even mentioning Rule 407, the Court in Klug v. Keller Industries, Inc. 328 NW2d 847, 852 (SD 1982), reaffirmed the Shaffer rationale, finding “no compelling reason” to alter its prior holding.

[¶47.] Since Shaffer and Klug, the force of authority has swung decidedly against admitting subsequent remedial measures in strict products liability actions.[11]  There are two reasons for this.  In 1997, Congress amended FRE 407 specifically to clarify that strict liability actions are included in its prohibition.[12]  The pertinent part of the amended version now provides that “evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product’s design, or a need for a warning or instruction.”  See FRE 407 as amended (new language in italics).  South Dakota never adopted the 1997 amendment and that would perhaps end our analysis but for the fact that this Court has never interpreted SDCL 19-12-9 (Rule 407) in this type of case.  Cf. Bland v. Davison County, 1997 SD 92, ¶¶18-24, 566 NW2d 452, 458-60 (examining the rule’s impeachment exception).

[¶48.] Long before the 1997 amendment, however, most federal courts, in interpreting Rule 407 as originally drafted, had come to the conclusion that admitting evidence of subsequent remedial measures in strict products liability cases while excluding it in negligence actions inserts an unwarranted breach in the rule through which “extremely damaging” and “highly prejudicial” evidence can enter.  Cann v. Ford Motor Co., 658 F2d 54, 60 (2dCir 1981), cert. denied, 456 US 960, 102 SCt 2036, 72 LEd2d 484 (1982) (citations omitted).  See Wood v. Morbark Indus., Inc., 70 F3d 1201, 1206-07 (11thCir 1995); In re Joint E. Dist. and S. Dist. Asbestos Litig. v. Armstrong World Indus., Inc., 995 F2d 343 (2dCir 1993); Kelly v. Crown Equip. Co., 970 F2d 1273, 1275-76 (3dCir 1992); Raymond, 938 F2d at 1522‑23; Gauthier v. AMF, Inc., 788 F2d 634, 636‑37, amended, 805 F2d 337 (9thCir 1986); Flaminio v. Honda Motor Co., 733 F2d 463, 468-72 (7thCir 1984); Grenada Steel Indus., Inc. v. Alabama Oxygen Co., 695 F2d 883, 888 (5thCir 1983); Hall v. American S.S. Co., 688 F2d 1062, 1066-67 (6thCir 1982); Werner v. Upjohn Co., 628 F2d 848, 858 (4thCir 1980), cert. denied, 449 US 1080, 101 SCt 862, 66 LEd2d 804 (1981); Bauman v. Volkswagenwerk Aktiengesellschaft, 621 F2d 230, 232 (6thCir 1980).  Only the Eighth and Tenth Circuits followed a contrary interpretation before the 1997 amendment.  See Burke v. Deere & Co., 6 F3d 497, 506 (8thCir 1993) cert. denied, 510 US 1115, 114 SCt 1063, 127 LEd2d 383 (1994) (superceded by FRE 407, as amended); Huffman v. Caterpillar Tractor Co., 908 F2d 1470, 1480-81 (10thCir 1990) (same); Robbins v. Farmers Union Grain Terminal Association, 552 F2d 788, 793 (8thCir 1977) (applying South Dakota law and quoting Shaffer).

[¶49.] Likewise, those states adopting some form of FRE 407 also paralleled federal jurisprudence, interpreting their rules to exclude subsequent remedial measures in both negligence and strict products liability cases.  See, e.g., Hyjek v. Anthony Indus., 944 P2d 1036, 1039, 1042-43 & nn 6-7 (Wash 1997) (citing cases); Cyr v. J.I. Case Co., 652 A2d 685, 693 (NH 1994); Krause v. American Aerolights, Inc., 762 P2d 1011, 1013 (Or 1988); Kallio v. Ford Motor Co., 407 NW2d 92, 97-98 (Minn 1987); Rix v. Gen. Motors Corp., 723 P2d 195, 202 (Mont 1986); Hallmark v. Allied Prod. Corp., 646 P2d 319, 325-26 (ArizCtApp 1982).  See generally Annotation, Admissibility of Evidence of Subsequent Repairs or Other Remedial Measures in Products Liability Cases, 74 ALR3d 1001.

[¶50.] Rule 407 was designed to ensure that the threat of legal liability would not discourage remedial measures to improve products.  Thus, the rule seeks to motivate manufacturers to make improvements without fearing the legal ramifications of their remedial acts.  The rule accomplishes this by removing the threat that product improvements will be used as evidence against manufacturers.  Duchess v. Langston Corp., 769 A2d 1131, 1143 (Pa 2001) (continual process of improvement and innovation in the marketplace favors broader application of evidentiary exclusion).  This purpose would seem to apply equally to negligence and strict liability actions, so we find it difficult to comprehend why the public policy behind Rule 407 should be construed differently in cases based on strict liability.  From the viewpoint of manufacturers, it is the fact that the evidence will be used against them that inhibits subsequent repairs or improvements.  For them, what difference does it make under which theory the evidence might be admitted?  Werner v. Upjohn Co., 628 F2d 848, 857 (4thCir 1980).

[¶51.] As Judge Posner explained in Flaminio, the attempted distinction between negligence and strict liability in relation to Rule 407 is “purely semantic.”  733 F2d at 469.

The analysis is not fundamentally affected by whether the basis of liability is the defendant’s negligence or his product’s defectiveness or inherent dangerousness.  In either case, if evidence of subsequent remedial measures is admissible to prove liability, the incentive to take such measures will be reduced.

Id. (citing Birchfield v. Int’l Harvester Co., 726 F2d 1131, 1139 (6thCir 1984)) (citations omitted).

[¶52.] Introducing evidence of subsequent remedial measures tends to divert the jury’s attention from whether the product was defective at the time it was manufactured and sold to some later time.  South Dakota’s statutory language governing products liability supports the conclusion that SDCL 19-12-9 (Rule 407) applies to strict products liability actions.  The point of time for assessing liability for the defective product in question is the time the product was “first sold.”  SDCL 20-9-10.1.[13]  If the time of product sale is the point for deciding liability in strict liability cases, then product knowledge acquired after that point becomes irrelevant.  Hyjek, 944 P2d at 1042-43.

[¶53.] We find the distinction conceived in Shaffer and Klug between negligence and strict liability to be indiscernible in relation to Rule 407 and overrule those two cases to the extent that they hold to the contrary.  The general prohibition against admitting evidence of subsequent remedial measures embodied in SDCL 19-12-9 (Rule 407) precludes use of subsequent design changes as substantive evidence of a product defect in a strict products liability case.

[¶54.] Although not arguing that any relevant exception to Rule 407 applies, plaintiff contends that probative value is not in question here because the trial court refused to admit the evidence based on undue delay of the proceedings.  We think policy considerations in Rule 407 favor the general rule of exclusion, but we cannot say, in view of the state of the law at the time of trial, that it was an abuse of discretion to invoke the “undue delay” language in Rule 403 to preclude this evidence.  Certainly, lack of sufficient probative value or unfair prejudice can be advanced as independent grounds for the general exclusion of subsequent remedial evidence under Rule 403.  Luda Foster v. Ford Motor Co., 621 F2d 715, 721 (5thCir 1980); FRE 407 advisory committee note.  We find no abuse of discretion.

VII.

Nonfunctioning Smoke Detector

[¶55.] At the time Daniel was burned, an ionizing smoke detector was in the hallway outside his bedroom, but it had no batteries.  Plaintiff argues that the trial court abused its discretion by allowing Kolcraft to present evidence of this nonfunctioning smoke detector in the Boone apartment.  “Proof of causation,” plaintiff contends, “or lack thereof, must be based on the evidence in the record, and not 'mere suggestion’ or 'speculation.’”  (Emphasis added.)  Plaintiff cites Engberg v. Ford Motor Co., 87 SD 196, 202, 205 NW2d 104, 107 (1973) and Klein v. W. Hodgman & Sons, Inc., 77 SD 64, 68, 85 NW2d 289, 292 (1957) as standing for this proposition.  These cases did not pass the burden of proving causation onto the defense.  A proper reading of Engberg and Klein reveals only that “mere suggestion” or “speculation” on the part of the defense is not enough to prevent a jury from performing its duty as the finder of fact.

[¶56.] In Engberg, we held that plaintiffs meet their burden of proof on causation when the evidence is sufficient for the jury to conclude, without speculation, that the preponderance of the evidence favors liability.  Engberg, 87 SD at 202, 205 NW2d at 107.  “We find [no] merit in the defendant’s argument that the mere suggestion of other causes of the decedent’s death made the plaintiff’s theory of causation a matter of speculation.”  Id.  In Klein, we reasoned that the “mere suggestions” of other possible causes did not preclude the trial court from submitting the issue of causation to the jury:

            Plaintiff had the burden, not only of proving that defendant was responsible for some negligent act, but that such act was the proximate cause of her injury and damage. . . . .  We agree with the Circuit Court of Appeals for the Eighth Circuit that 'A theory of proximate cause resting in probative circumstances does not become a matter of speculation and conjecture by a mere suggestion of other possible causes which are unsupported by any proved facts.’  The evidence as to the proximate cause of the accident presented a question of fact to be resolved by the jury.

Klein, 77 SD at 67-68, 85 NW2d at 291-92 (internal citations omitted) (emphasis added).

[¶57.] Plaintiff next argues that because contributory negligence is not a permissible defense to a strict liability action, the purpose of testimony regarding the smoke detector was to discredit Peggy Boone.  Plaintiff further argues that no amount of remediation by the trial court could lessen the prejudicial effect of this evidence.

[¶58.] Directly after testimony concerning the smoke detector, the trial court directed the jury’s attention to Preliminary Instruction 9.  The trial court then read the instruction:

            You are instructed that evidence about the smoke detector in the Boone apartment is being received solely on the issue of whether an earlier warning of the fire may have reduced or prevented the plaintiff’s injuries, Daniel Boone’s injuries.  You shall not consider this evidence for any other purpose.  The conduct of the plaintiff or his parents is not a defense to the plaintiff’s strict liability claim. 

In addition to this instruction, Instruction 36, entitled, “Contributory Negligence Is No Defense,” was given to the jury.  The instruction states, “The contributory negligence of plaintiff or of his parents, if any, is not a defense to plaintiff’s strict liability claim.”  We presume that juries will follow the court’s instructions.  Hossle v. Fountain, 1999 SD 104, ¶9, 598 NW2d 877, 879.  In these circumstances, the court did not err in allowing this testimony.

VIII.

Proximate Cause

[¶59.] Lastly, we address Kolcraft’s notice of review question on its claim that proof of proximate cause was lacking as a matter of law.  In trial, plaintiff alleged that (1) California law requires that all upholstered furniture sold in the state be fire resistant; (2) Kolcraft manufactured its Playard with vinyl pads containing fire retardant treated foam for sale in California at the same time that it manufactured the same Playard pads containing untreated foam for sale in other states; and (3) untreated foam ignites easier and burns at a more rapid rate than treated foam.  Kolcraft argues that all the evidence presented at trial, including the tests performed by plaintiff's own experts, proved that the pads, as covered by thin vinyl, burned the same way regardless of whether they contained treated or untreated foam.  If treated and untreated pads burn the same, Kolcraft reasons, then use of an untreated pad could not have proximately caused the child’s injuries.  Kolcraft also asserts the evidence was legally insufficient to support a finding that failure to warn proximately caused the child’s injuries:  because both treated and untreated Playard pads burn the same way, they are equally safe and therefore Kolcraft had no duty to warn.

[¶60.] Kolcraft moved for summary judgment before trial and a directed verdict at the end of trial, arguing that as a matter of law plaintiff could not prove the Playard proximately caused Daniel’s injuries.  Both motions were denied.  We think it advisable to review only the directed verdict decision because a ruling under SDCL 15-6-50 is based on the full trial record, not the limited pretrial record available at the time of the summary judgment decision.  Motions for directed verdict under SDCL 15‑6‑50(a) test whether sufficient evidence was produced to meet the legal threshold necessary to sustain the action.  Schuldies, 1996 SD 120, ¶8, 555 NW2d at 94 (citations omitted).  Without weighing the evidence or considering questions of credibility, all evidence with its reasonable inferences must be viewed in a light most favorable to the nonmoving party.  Id.  If there is sufficient evidence adverse to the motion such that reasonable jurors might reach a different result, then the motion must be denied.  Id.  On review, we will reverse the circuit court only if reasonable minds could come to no conclusion other than one favoring the movant.  Id.  Rulings on such motions are presumed correct and we will not seek reasons to reverse.  Id.

[¶61.] Flakus, one of the experts called by plaintiff, theorized that the masonite floorboard in the playpen sustained thermal degradation because of its long proximity to a hot water baseboard heater in the children’s bedroom.  The playpen had been pushed against this heater and it had been turned on high for a long time.  This caused “pyrolytic ignition.”  Nonetheless, plaintiff argued that the source of ignition was immaterial because if the playpen had been constructed with fire retardant materials, the child would not have been injured.  If flame retardant foam had been used, as in California, plaintiff's experts thought the fire would have been suppressed.  Defense experts opined that the playpen itself did not ignite initially, but that something (cigarette) first ignited the bedding in the playpen.  Bunsen burner flame tests indicated that with their vinyl covering the playpen pads did not remain ignited once the flame was removed, regardless of whether the pads contained treated or untreated foam.  Yet, these tests did not attempt to duplicate the conditions in the child’s bedroom at the time of the fire.

[¶62.] Proximate or legal cause is a cause that produces a result in a natural and probable sequence and without which the result would not have occurred.  Such cause need not be the only cause of a result.  It may act in combination with other causes to produce a result.  SDCL 21-3-1; Estate of Gaspar, 2003 SD 126, ¶6, 670 NW2d 918, 921.  Causation is almost always a fact question, “except when there are no differences of opinion on the interpretation of the facts.”  Id. at ¶5.  In examining the evidence in a light most favorable to plaintiff, we think reasonable minds could differ on the proper outcome.  Jurors were required to weigh conflicting opinions between several experts and find whether the facts supported one opinion over another.  The circuit court properly denied Kolcraft’s motion for directed verdict.

[¶63.] Affirmed in part, reversed in part, and remanded for a new trial.

[¶64.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and MEIERHENRY, Justices, concur.


[11].         For an early law review article foreseeing the coming changes based on Rule 407, see Barbara Strong Goss, SUBSEQUENT REMEDIAL MEASURES IN STRICT LIABILITY:  LATER OPINIONS AS EVIDENCE OF DEFECTS IN EARLIER REASONING, 32, Cath U L Rev 895 (1983).

[12].         According to the Advisory Committee notes, Rule 407 has been amended to provide that evidence of subsequent remedial measures may not be used to prove “a defect in a product or its design, or that a warning or instruction should have accompanied a product.  This amendment adopts the view of a majority of the circuits that have interpreted Rule 407 to apply to products liability actions.”

[13].         SDCL 20-9-10.1 provides:

Product liability - Action on negligence or strict liability - Standard of care - Consideration of conformity at time of manufacture.

Источник: https://law.justia.com/cases/south-dakota/supreme-court/2004/1318.html

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First Premiere took a chance on me when no one else would, and that says a lot! I have no clue what people are complaining for, the APR and fees are in the contract you sign and approve, if u don’t like it, then don’t sign the papers! This company isn’t doing anything other companies don’t do….I know Amex has a HUGE yearly fee for a lot of their cards. I will gladly pay my yearly fee to help build my credit and to show that First Premiere made a good decision in trusting me. I am grateful for the opportunity, my score has went up tremendously since approved…I went from an 425 up to 568 in a matter of 2 months time….I now has 2 other cards as well and was just approved for another unsecured card. I try to keep my utilization low and make more than minimum payment. I am on my way to building a better financial future, and couldn’t have done that without First Premiere giving me a chance. I can say that I have seen people say the give CL increases within first 2-3 months, but Everytime I have requested one I have been denied. Although, it doesn’t bother me…they started me out on a pretty fair $400 limit. Thank you First Premiere. I will continue to use them for many years to come.

Do not get this card… i have 2 u will never pay it off i added my monthly fee of 14.50 a month plus 47 annual fee. God forbid if u spend anything interest is extremely high. so u paying them 227 a year to just have the card ive seen credit cards and this is beyond the most bogus card n history just throw your money away don’t get this card

The Platinum First Premier Bank Credit Card received good and bad reviews.  Most of the bad reviews are due to high fees BUT this is to be expected for those with a bad credit score.  Bottom line:  this is a decent card for those looking to rebuild their credit score, are willing to make on time payments, and are having trouble getting approved for a more traditional credit card.



Sources

  1. platinumoffer.com
  2. PlatinumOffer.com Pre Approved Confirmation Number

FAQ

Is First Premier a good credit card?

The cards available to those with poor credit tend to have higher rates and fees, so you'll want to do your research before signing on any dotted lines. The First Premier Bank Mastercard is a perfect example. It's an unsecured card that offers approval to a wider range of credit profiles than many other credit cards.

How do I check the status of my First Premier credit card?

If you want to check the First Premier Credit Card Application Status call on 800-987-5521.

How do I pay my first premier bank processing fee?

Though First Premier Bank requires a checking account to qualify for their credit cards, there are multiple ways to pay the processing fee. Payment options include a bank draft, personal check, money order, debit card, or another credit card. First Premier will not open an account until it receives the processing fee.

Where can I pay my first Premier card?

If your bank offers the BillPay service, send your payment to First Premier Bank (as the payee) at PO Box 5529 , Sioux Falls , SD , 57117-5529 by entering your 16-digit credit card number in the account number field.

Is First Premier Bank Platinum Mastercard good?

I love the fact that the First PREMIER Bank Platinum Credit Card is an unsecured card for bad credit. The con of this card is the first annual fee, one time fee, and APR. ... There is also another good thing about this card, the monthly fees are


About the author

Quentin Fottrell is personal-finance editor and The Moneyist columnist. You can follow him on Twitter @quantanamo.

Quentin Fottrell


Источник: https://teuscherfifthavenue.com/apply-platinumoffer-com-pre-approved-confirmation-number-first-premier-bank/

First Premier Bank

First Premier Bank, headquartered in Sioux Falls, South Dakota, is the 13th largest issuer of MasterCard brand credit cards in the United States.[citation needed] The bank is known for specializing in a wide range of subprime credit cards that are marketed to individuals with low credit scores.

History[edit]

The bank was founded in 1986 and is owned and controlled by T. Denny Sanford.[1][2] The typical First Premier Bank MasterCard user uses the card for about 18 months before moving to another card with better terms; Sanford described the company as offering a "lifeline" for those with poor credit.[3]

In 2007, the bank settled a case with the New York Attorney General who claimed the bank used deceptive practices to market its credit cards. The bank paid $4.5 million as part of the deal.[2]

As of December 2010, Premier Bank was reportedly offering a credit card with a 79.9% interest rate and a $300 limit. This was cited by Senator Bernie Sanders as an example of what he called "extortion and loan sharking".[4]

In 2014 it was announced that First Premier Bank sued cardhub.com for allowing customers to view rates and terms and also letting users review the card.[5]

First Premier Bank's CEO, Dana J. Dykhouse, was referenced in a 2014 piece in the Argus Leader as belonging to a group of would-be local benefactors who the author wrote, "should quit gouging poor people who can't make it from paycheck to paycheck, or don't qualify for regular credit cards. ... Loan sharks who charge an obscene profit just because they can don't make good community leaders."[6]

Reception[edit]

In April 2018, John Kiernan of WalletHub, a personal finance website, ranked the First Premier Bank MasterCard poorly (1 stars out of 5). He wrote that the card had excessive fees, low credit limit and a high annual percentage rate that made it a bad choice for most users.[citation needed]

References[edit]

  1. ^Faturechi, Robert; Arnsdorf, Isaac (August 28, 2020). "Billionaire T. Denny Sanford Was Under Investigation for Child Pornography". ProPublica. Archived from the original on August 31, 2020. Retrieved September 1, 2020.
  2. ^ abShenon, Philip (2010-10-19). "America's Worst Credit Card: First Premier Bank's Dubious Distinction". The Daily Beast. Archived from the original on 2020-09-02. Retrieved 2020-09-02.
  3. ^Whelan, David (September 22, 2007). "Dying Broke". Forbes. Archived from the original on July 8, 2015. Retrieved July 7, 2015.
  4. ^http://www.c-span.org/Watch/Media/2010/12/10/HP/A/41780/Sen+Sanders+Held+a+Tax+Cut+Filibuster.aspxArchived 2010-12-14 at the Wayback Machine Senator Bernie Sanders Speech 3:01:10
  5. ^"Card comparison site gets sued for showing rates, fees". www.cbsnews.com. Archived from the original on 2017-05-18. Retrieved 2020-09-02.
  6. ^Nipe, Sue (18 December 2014). "Letter: Community benefactors reap profits from poor". Argus Leader. Archived from the original on 2 September 2020. Retrieved 15 April 2016.

External links[edit]

Источник: https://en.wikipedia.org/wiki/First_Premier_Bank

Best First Credit Cards To Build Credit In December 2021

Best Overall For New To Credit

Petal® 1 “No Annual Fee” Visa® Credit Card

Regular APR

19.99% - 29.49% (Variable)

Credit Score

Fair/Bad/No Credit

Why We Picked It

For those whose credit score is less than perfect, the Petal® 1 Visa® Credit Card may be able to help you build a stronger credit profile. It’s one of a tiny batch of credit cards aimed at those without great credit that don’t require an upfront security deposit.

Pros & Cons

  • No security deposit required
  • No annual fee
  • Limited rewards program
  • Rewards only available at select merchants
  • No balance transfer option available

Card Details

  • $0 Annual Fee
  • $300 – $5,000 credit limits
  • Earn a credit limit increase in as little as 6 months. Terms and conditions apply.
  • No credit score? No problem. If eligible, we’ll create your Cash Score instead.
  • 2% – 10% cash back at select merchants
  • Variable APRs range from 19.99% – 29.49%
  • See if you’re pre-approved within minutes without impacting your credit score.
  • No annual or foreign transaction fees.
  • Build credit alongside hundreds of thousands of Petal Card members.
  • Petal’s mobile app makes it easy to manage your money, track your spending, and automate payments.
  • Petal reports to all 3 major credit bureaus
  • No deposits required
  • Card issued by WebBank, Member FDIC

Best for Students Without Any Credit History

Deserve® EDU Mastercard for Students

Welcome Bonus

One year of Amazon Prime Student

Regular APR

18.74% Variable

Credit Score

Limited/No Credit

Why We Picked It

For international students or students without a credit history, the Deserve EDU Mastercard is a compelling option with no annual fee and a flat 1% cash back reward. However, for those with a solid credit history, better student cards are out there.

Pros & Cons

  • No annual fee
  • No foreign transaction fees
  • Useful benefits like cell phone protection
  • Doesn’t require a social security number to apply, allowing international students to qualify
  • Cash back rewards don’t exceed 1%
  • High variable APR

Card Details

  • Receive one year of Amazon Prime Student on Deserve after spending $500 in the first three billing cycles with your EDU card (Lifetime Value of $59).
  • Earn 1% Cash Back on all purchases with your Deserve EDU Mastercard. Once approved, you’ll automatically start earning cash back on all purchases.
  • Feel secure with cell phone protection up to $600.
  • No deposit required. No annual fees.
  • No international transaction fees on purchases abroad so you can travel with confidence.
  • No Social Security Number required for international students to apply.
  • Refer A Friend Program: Refer anyone to Deserve using your personal referral code. Upon approval, card activation and use, you’ll receive $30 and so will your referral. Referral bonuses are unlimited!
  • Manage and track your spending, set automatic payments and securely freeze your card all through one easy to use app.
  • See if you prequalify with no impact to your credit score in minutes.
  • Deserve Mastercards are issued by Celtic Bank, Member FDIC.
  • Enjoy Mastercard Platinum Benefits intended to make your life easier like Mastercard ID Theft Prevention™ and Master Rental®.

Best Secured Starter Card For Those Starting Out

Discover it® Secured Credit Card

Welcome Bonus

Cashback Match™

Regular APR

22.99% Variable

Credit Score

New/Rebuilding Credit

Why We Picked It

In the secured credit world, the Discover it® Secured Credit Card stands above the competition. With an unlimited 1% cash back rate on all purchases, plus 2% cash back at gas stations and restaurants on up to $1,000 in combined purchases each quarter, no penalty APR and no annual fee, we love this card for those who need to rebuild their credit. The matching cash back reward at the end of your first year is a sweet bonus.

Pros & Cons

  • No annual fee
  • Cash back rewards earning is uncommon for a secured card
  • Free FICO score access each month
  • Cashback Match doubles cash back rewards earning at the end of the first year
  • Rewards are capped
  • Secured cards don’t provide many of the perks unsecured cards do
  • Secured cards require refundable deposits

Card Details

  • No Annual Fee, earn cash back, and build your credit with responsible use.
  • Using your secured credit card helps build a credit history with the three major credit bureaus. Generally, prepaid and debit cards can’t do that.
  • Establish your credit line with your tax return by providing a refundable security deposit of at least $200. Bank information must be provided when submitting your deposit.
  • Automatic reviews starting at 7 months to see if we can transition you to an unsecured line of credit and return your deposit.*
  • Earn 2% cash back at Gas Stations and Restaurants on up to $1,000 in combined purchases each quarter. Plus, earn unlimited 1% cash back on all other purchases – automatically.
  • Discover is accepted nationwide by 99% of the places that take credit cards.
  • Get 100% U.S. based customer service & get your free Credit Scorecard with your FICO® Credit Score.
  • Intro Offer: Unlimited Cashback Match – only from Discover. Discover will automatically match all the cash back you’ve earned at the end of your first year! There’s no minimum spending or maximum rewards. Just a dollar-for-dollar match.
  • Get an alert if we find your Social Security number on any of thousands of Dark Web sites.* Activate for free.
  • Click “Apply Now” to see rewards, FICO® Credit Score terms, Cashback Match™ details & other information.

Best For Those With Good Checking Account History

Petal® 2 “Cash Back, No Fees” Visa® Credit Card

Up to 10% cash back

1% cash back on eligible purchases right away. Up to 1.5% cash back on eligible purchases after making 12 on-timeRead More

Regular APR

12.99% - 26.99% (Variable)

Credit Score

Limited/Fair/Good/Excellent

Why We Picked It

If you have no credit or limited credit, the Petal 2 Credit Card is our first choice. You can check to see if you're pre-approved without impacting your credit score (a process that uses a "soft pull"). This card is light on fees, so if you don't carry a balance you may be able to build a solid credit history with responsible use while limiting your exposure to fees. However, those with missed payments or a bankruptcy on their credit report are unlikely to be approved.

Pros & Cons

  • No fees: no annual fee, no foreign transaction fee, no late fee, no over limit fee
  • No security deposit
  • No credit history required
  • No intro APR offer
  • No cash advances or balance transfers
  • Applicants with a damaged credit report may not qualify

Card Details

  • No fees whatsoever. No late fee, foreign transaction fee, annual fee, or any-other-kind-of-fee, fee.
  • Up to 1.5% cash back on eligible purchases after making 12 on-time monthly payments.
  • 1% cash back on eligible purchases right away
  • 2% – 10% cash back at select merchants
  • $300 – $10,000 credit limits
  • Variable APRs range from 12.99% – 26.99%
  • No credit score? No problem. If eligible, we’ll create your Cash Score instead.
  • See if you’re pre-approved within minutes without impacting your credit score.
  • Build credit alongside hundreds of thousands of Petal Card members.
  • Petal reports to all 3 major credit bureaus.
  • No deposits required
  • Card issued by WebBank, Member FDIC

Best For Students Starting To Establish Credit

Bank of America® Travel Rewards credit card for Students *

Bank of America® Travel Rewards credit card for Students

1.5X Reward Rate

Earn unlimited 1.5X points for every $1 you spend on all purchases everywhere, every time and no expiration on points

Welcome Bonus

25,000 points

Regular APR

13.99% - 23.99% Variable APR on purchases and balance transfers

Credit Score

Good/Excellent (700 - 749)

Why We Picked It

Students studying abroad will pay no foreign transaction fees (and no annual fee) while earning flat-rate rewards points with flexible travel redemption options. This isn't a good card for balance transfers, however, as the intro APR offer only applies to purchases.

Pros & Cons

  • Flexible rewards redemption options
  • Unlimited 1.5 points per $1 on all spending
  • No foreign transaction fee
  • Easy-to-earn welcome bonus
  • High balance transfer fee.
  • No bonus categories to boost rewards.
  • No intro APR offer on balance transfers.
  • High penalty APR and late fee.

Card Details

  • Earn unlimited 1.5 points for every $1 you spend on all purchases everywhere, every time and no expiration on points
  • 25,000 online bonus points if you make at least $1,000 in purchases in the first 90 days of your account opening – which can be redeemed for a $250 statement credit toward travel purchases
  • No annual fee and no foreign transaction fees
  • Chip Cards now with chip technology for enhanced security and protection when making purchases at chip-enabled terminals in over 130 countries
  • 0% Introductory APR for 12 billing cycles for purchases.

Best Overall Card For Established Credit

Chase Freedom Flex℠

Up to 5X Reward Rate

Earn 5% cash back on eligible purchases in rotating categories, 5% on Chase travel purchased through Chase Ultimate Rewards®, 3%Read More

Regular APR

14.99% - 24.74% Variable

Credit Score

Excellent, Good (700 - 749)

Why We Picked It

This card has the brawn to handle just about all of your credit card spending needs without an over-inflated price tag. The card has an annual fee of $0, yet comes with a pumped-up earnings structure that covers a wide swath of expenses including travel, drugstores and dining plus rotating quarterly bonus categories in areas many households are likely to find appealing.

Pros & Cons

  • No annual fee
  • Rotating quarterly categories earn 5% rewards when activated, up to a combined quarterly $1,500 maximum
  • Travel rewards rate rivals some of the best premium travel cards
  • Generous rewards rate in several other categories
  • Travel bookings must be made through Chase Ultimate Rewards® to earn 5% cash back

Card Details

  • Earn a $200 Bonus after you spend $500 on purchases in your first 3 months from account opening.
  • 5% cash back on grocery store purchases (not including Target® or Walmart® purchases) on up to $12,000 spent in the first year.
  • 5% cash back on up to $1,500 in combined purchases in bonus categories each quarter you activate. Enjoy new 5% categories each quarter!
  • 3% cash back on dining at restaurants, including takeout and eligible delivery services
  • 3% cash back on drugstore purchases
  • 5% cash back on travel purchased through Chase Ultimate Rewards®, and 1% on all other purchases.
  • 0% Intro APR for 15 months from account opening on purchases and balance transfers, then a variable APR of 14.99% – 24.74%.
  • No annual fee.

Best For First-Year Welcome Bonus

Discover it® Cash Back

Up to 5% Reward Rate

Earn 5% cash back on everyday purchases at different places each quarter like Amazon.com, grocery stores, restaurants, gas stations andRead More

Welcome Bonus

Cashback Match™

Regular APR

11.99% - 22.99% Variable

Credit Score

Excellent/Good (700 - 749)

Why We Picked It

For moderate spenders who are willing to activate the 5% rotating categories and track the quarterly spending cap, this no-annual-fee card can deliver tidy rewards outside of its ongoing 1% earning rate.

Pros & Cons

  • 5% cash back on quarterly rotating spending categories throughout the year
  • Discover will automatically match all the cash back you’ve earned at the end of your first year
  • No minimum cashback redemption
  • 5% bonus cashback rate is limited to $1,500 per quarter in spending
  • Bonus categories must be activated quarterly
  • Low 1% base reward rate on everything else

Card Details

  • Intro Offer: Unlimited Cashback Match – only from Discover. Discover will automatically match all the cash back you’ve earned at the end of your first year! There’s no minimum spending or maximum rewards. You could turn $150 cash back into $300.
  • Earn 5% cash back on everyday purchases at different places each quarter like Amazon.com, grocery stores, restaurants, gas stations and when you pay using PayPal, up to the quarterly maximum when you activate.
  • Plus, earn unlimited 1% cash back on all other purchases – automatically.
  • Redeem cash back in any amount, any time. Rewards never expire.
  • Use your rewards at Amazon.com checkout.
  • No annual fee.
  • Discover is accepted nationwide by 99% of the places that take credit cards.
  • Click “Apply Now” to see rewards, FICO® Credit Score terms, Cashback Match™ details & other information.

Best Starter Rewards For Those With Some Credit History

Citi® Double Cash Card

Regular APR

13.99% - 23.99% (Variable)

Credit Score

Excellent, Good (700 - 749)

Why We Picked It

The Citi Double Cash card's simple cash back structure and long lasting APR offer make the Citi Double Cash a favorite among those who want to set it and forget it. It offers a solid cashback rate on all purchases, plus a long-lasting 0% intro APR offer, all without an annual fee.

Pros & Cons

  • Earn up to 2% cash back—1% when the purchase is made and 1% when payment is made on the account
  • No cash back cap—no limit on the amount of cash back that can be earned
  • No annual fee
  • Introductory APR period for balance transfers
  • Foreign transaction fee
  • Balance transfer fee
  • Lack of benefits seen in other no annual fee cards
  • No introductory 0% APR on purchases

Card Details

  • Earn 2% on every purchase with unlimited 1% cash back when you buy, plus an additional 1% as you pay for those purchases.
  • To earn cash back, pay at least the minimum due on time.
  • Balance Transfer Only Offer: 0% intro APR on Balance Transfers for 18 months. After that, the variable APR will be 13.99% – 23.99%, based on your creditworthiness.
  • Balance Transfers do not earn cash back. Intro APR does not apply to purchases.
  • If you transfer a balance, interest will be charged on your purchases unless you pay your entire balance (including balance transfers) by the due date each month.
  • There is an intro balance transfer fee of 3% of each transfer (minimum $5) completed within the first 4 months of account opening. After that, your fee will be 5% of each transfer (minimum $5).
  • The standard variable APR for Citi Flex Plan is 13.99% – 23.99% based on your creditworthiness. Citi Flex Plan offers are made available at Citi’s discretion.

Best Simple Rewards For Those With Some Credit History

Capital One QuicksilverOne Cash Rewards Credit Card

Regular APR

26.99% (Variable)

Credit Score

Average, Fair, Limited

Why We Picked It

A great option for those with less-than-stellar credit, this card offers a gateway to building better credit while earning a respectable 1.5% cash back rewards rate. You may also gain a higher credit line in as little as 6 months from account opening.

Pros & Cons

  • Unlimited 1.5% cashback rewards
  • Average credit applicants considered
  • No foreign transaction fee
  • Rewards don’t expire
  • High APR
  • No bonus spending categories to boost rewards
  • No welcome offer
  • No intro APR offer

Card Details

  • Earn unlimited 1.5% cash back on every purchase, every day
  • Earn cash rewards without signing up for rotating categories
  • Be automatically considered for a higher credit line in as little as 6 months
  • Monitor your credit profile with the CreditWise® app, free for everyone
  • $0 fraud liability if your card is ever lost or stolen
  • No limit to how much cash back you can earn, and cash back doesn’t expire for the life of the account
  • Help strengthen your credit for the future with responsible card use
  • Get customized alerts and manage your account with the Capital One mobile app
Источник: https://www.forbes.com/advisor/credit-cards/best/first-credit-card/

First PREMIER® Bank Credit Card

Our rating

Min. credit level:Bad

Annual Fee:Up to $125 the first year, up to $49 each year after that

Regular APR:36.00% Fixed

First PREMIER® Bank Credit Card

Our rating

BadMin. credit level

Up to $125 the first year, up to $49 each year after thatAnnual Fee

Apply NowRead Our Review

Highlights & Features

Balance Transfers

A balance transfer is a way to move debt from one card to another with the goal of saving money on interest.

Intro Balance Transfer APR N/A
Regular Balance Transfer APRN/A
Balance Transfer FeeN/A
How to Transfer a Balance on a Credit Card

Cash Advances

Borrowing cash on your card is a cash advance. Cash advances usually come with very high fees. Even worse, cash advances can signal to lenders that you’re being irresponsible with money.

Cash Advance APR36.00% Fixed
Cash Advance Fee5%, $8 minimum
How to Get a Cash Advance with a Credit Card
First PREMIER® Bank Credit Card

Highlights

  • Must have a checking account to qualify
  • Only you can build a good credit history. Make your payments on time each month, and keep your balance low relative to the credit limit, for positive marks on your credit reports each month
  • Your First PREMIER Bank credit card activity is reported to the Consumer Reporting Agencies each month
  • Track your progress. Your quarterly FICO Score is provided for free on your monthly billing statement
  • Credit scores are used to represent the creditworthiness of a person and may be one indicator to the credit type you are eligible for. However, credit scores alone do not guarantee or imply approval for any First PREMIER® Bank product

The First PREMIER Bank Credit Card has an extremely high APR and huge fees. This is not a card that we recommend using.

You’ll pay a one-time program fee to open the account, which most card issuers don’t charge. Then you’ll pay an annual fee and monthly fees that depend on your initial credit limit:

Credit LimitProgram FeeMonthly FeeAnnual FeeInitial Available Credit
$300$95 (one-time)$0 for one year, then $6.25 monthly ($75 yearly)$75 for one year, then $45$225.00
$400$95 (one-time)$0 for one year, then $6.25 monthly ($75 yearly)$100 for one year, then $45$300.00
$500$95 (one-time)$0 for one year, then $10.40 monthly ($124.80 yearly)$125 for one year, then $49$375.00
$600$75 (one-time)$5.85 monthly for one year $70.20 yearly), then $8.25 monthly ($99 yearly)$79 for one year, then $49$515.15
$700$55 (one-time)$8.00 monthly for one year ($96.00 yearly), then $10.40 monthly ($124.80 yearly)$79 for one year, then $49$613.00
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Источник: https://www.creditcardinsider.com/credit-cards/first-premier/first-premier-bank-credit-card/

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Источник: https://www.investopedia.com/first-premier-bank-gold-mastercard-review-4846194

Related Videos

First Premier Bank needs to get their Sh*t together!!!
www first premier bank

First PREMIER® Bank Credit Card

Our rating

Min. credit level:Bad

Annual Fee:Up to $125 the first year, up to $49 each year after that

Regular APR:36.00% Fixed

First PREMIER® Bank Credit Card

Our rating

BadMin. credit level

Up gpa requirements for south carolina state university $125 the first year, up to $49 each year after thatAnnual Fee

Apply NowRead Our Review

Highlights & Features

Balance Transfers

A balance transfer is a way to move debt from one card to another with the goal of saving money on interest.

Intro Balance Transfer APR N/A
Regular Balance Transfer APRN/A
Balance Transfer FeeN/A
How to Transfer a Balance on a Credit Card

Cash Advances

Borrowing cash on your card is a cash advance. Cash advances usually come with very high fees. Even worse, cash advances can signal to lenders that you’re being irresponsible with money.

Cash Advance APR36.00% Fixed
Cash Advance Fee5%, $8 minimum
How to Get a Cash Advance with a Credit Card
First PREMIER® Bank Credit Card

Highlights

  • Must have a checking account to qualify
  • Only you can build a good credit history. Make your payments on time each month, and keep your balance low relative to the credit limit, for positive marks on your credit reports each month
  • Your First PREMIER Bank credit card activity is reported to the Consumer Reporting Agencies each month
  • Track your progress. Your quarterly FICO Score is provided for free on your monthly billing statement
  • Credit scores are used to represent the creditworthiness of a person and may be one indicator to the credit type you are eligible for. However, credit scores alone do not guarantee or imply approval for any First PREMIER® Bank product

The First PREMIER Bank Credit Card has an extremely high APR and huge fees. This is not a card that we recommend using.

You’ll pay a one-time program fee to open the account, which most card issuers don’t charge. Then you’ll pay an annual fee and monthly fees that depend on your initial credit limit:

Credit LimitProgram FeeMonthly FeeAnnual FeeInitial Available Credit
$300$95 (one-time)$0 for one year, then $6.25 monthly ($75 yearly)$75 for one year, then $45$225.00
$400$95 (one-time)$0 for one year, then $6.25 monthly ($75 yearly)$100 for one year, then $45$300.00
$500$95 (one-time)$0 for one year, then $10.40 monthly ($124.80 yearly)$125 for one year, then $49$375.00
$600$75 (one-time)$5.85 monthly for one year $70.20 yearly), then $8.25 monthly ($99 yearly)$79 for one year, then $49$515.15
$700$55 (one-time)$8.00 monthly for one year ($96.00 yearly), then $10.40 monthly ($124.80 yearly)$79 for one year, then $49$613.00
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Источник: https://www.creditcardinsider.com/credit-cards/first-premier/first-premier-bank-credit-card/

FIRST PREMIER BANK v. KOLCRAFT ENTERPRISES, INC.

Unified Judicial System

FIRST PREMIER BANK,
as Guardian Ad Litem and
Limited Conservator of
DANIEL L. BOONE,

Plaintiff and Appellant,
v.
KOLCRAFT ENTERPRISES, INC.,
a Delaware corporation,

Defendant and Appellee.

[2004 SD 92]

South Dakota Supreme Court
Appeal from the Ode to the west wind imagery Court of
The Second Judicial Circuit
Minnehaha County, South Dakota

Hon. William J. Srstka, Jr., Judge

MICHAEL P. HEALY
Kansas City, Missouri

ROLLYN H. SAMP
Sioux Falls, South Dakota

JONATHAN K. VAN PATTEN
Vermillion, South Dakota

Attorneys for plaintiff and appellant.

MARK F. MARSHALL
MICHAEL L. LUCE of
Davenport, Evans, Hurwitz & Smith
Sioux Falls, South Dakota

CHARLES J. RISCH of
Lawrence, Kamin, Saunders & Uhlenhop
Chicago, Illinois

Attorneys for defendant and appellee.

Argued on October 8, 2003

Opinion Filed 8/18/2004


#22421, #22449

KONENKAMP, Justice

[¶1.] Litigants are ordinarily prohibited from disclosing to a jury a prior settlement “to prove liability for or invalidity of the claim or its amount.”  This prohibition, embodied in our rules of evidence, avoids prejudice to all parties and promotes settlements.  Here, defense counsel broached the fact of an earlier settlement made on plaintiff’s behalf.  Although the trial court had advised counsel not to offer evidence about this settlement until he ruled on the pending motion in limine, the court took the position that since remarks by attorneys are not evidence, neither side would be precluded from disclosing in their opening statements matters subject to pending motions.  Ultimately, the court granted plaintiff’s motion in limine, ruling that the prejudicial impact of the settlement evidence outweighed its probative value.  Yet the court nonetheless found that any prejudice created by the disclosure of the settlement in defense counsel’s opening statement did not warrant a new trial.  Because, in most instances, a prior settlement should not be disclosed to the jury by any means, the court abused its discretion in allowing counsel to reveal it in remarks to the jury.  This error, along with error in the jury instructions, impaired the plaintiff's right to a fair trial.  We affirm in part, reverse in part, and remand for a new trial.

Background

[¶2.] On January 12, 1992, Daniel Boone, age ten months, was severely burned while he was sleeping in a playpen in the children’s bedroom at his parents’ apartment.  Defendant Abc13 houston food bank Enterprises manufactured the pads for its “Playard” playpens using two types of polyurethane foam.  For customers in California, polyurethane treated with a fire retardant was used, as required by law.  For all other customers, non-treated foam was used.  After this incident, Kolcraft began using treated foam in all the pads it manufactured.

[¶3.] Peggy Boone first sued her landlord for her child’s injuries.  That matter settled.  Plaintiff, First Premier Bank, was later appointed the child’s guardian ad litem to pursue further legal action on the child’s behalf.  Its complaint alleged that the playpen was (1) defective and unreasonably dangerous in its design, or (2) defective and unreasonably dangerous because of a failure to warn.  Kolcraft moved for summary judgment before trial and a directed verdict at the close of the evidence, arguing that as a matter of law plaintiff could not prove that Kolcraft’s Playard proximately caused Daniel’s injuries.  The trial court denied both motions.

[¶4.] Before trial, both sides sought to exclude certain www first premier bank by motions in limine.  The judge declined to rule on the motions until the parties were ready to offer evidence during trial.  In opening statements, with the court’s indulgence, both sides mentioned topics subject to these motions.  In other rulings, the court allowed testimony about the smoking habits of Daniel’s parents and their non-functioning smoke detector, and permitted the defense to introduce the mother’s earlier statement that a blanket was the origin of the fire.  The court, however, did not allow plaintiff to introduce evidence that Kolcraft began using fire retardant foam in all its playpen pads after the incident here.

[¶5.] After a three-week trial, the jury found against plaintiff.  The trial court denied plaintiff's motion for a new trial.  On appeal, plaintiff advances manifold assignments of error with multiple subparts.  Because not all these issues merit discussion, we address the following:  (1) Whether plaintiff is entitled to a new trial because defense counsel disclosed to the jury in his opening statement that the injured child’s mother had settled a suit for the same injuries against the family’s landlord several years earlier.  (2) Whether the trial court abused its discretion in allowing testimony and argument that careless cigarette smoking could not be ruled out as a source of ignition for the fire.  (3) Whether the court erred in instructing the jury that it could infer that missing evidence would not have been favorable to plaintiff.  (4) Whether the court erred in not giving definitions of “defective condition” in the disjunctive.  (5) Whether the trial court erred when it refused to give the jury a limiting instruction on the use of prior inconsistent statements, thus allowing Kolcraft to use the statement as substantive evidence.  (6) Whether the trial court erred in excluding evidence of Kolcraft’s subsequent remedial measures on the ground that this evidence would “unduly delay” the trial.  (7) Whether the trial court erred in allowing Kolcraft to raise the issue of a nonfunctioning smoke detector without proper foundation and to argue what was, in effect, a contributory negligence defense.  On notice of review, Kolcraft asserts that the trial court erred when it denied its motion for a directed verdict on the question whether Kolcraft’s Playard was the proximate cause of Daniel’s injuries.

I.

Disclosure of Prior Settlement

[¶6.] Plaintiff seeks a new trial because Kolcraft violated an order in limine excluding evidence of a prior settlement.  During Kolcraft’s opening statement, defense counsel advised the jury that plaintiff had settled with the Boone family’s former landlord several years earlier.  Our standard of review is set forth in Schuldies v. Millar, 1996 SD 120, ¶8, 555 NW2d 90, 95 (citation omitted):

            Whether a new trial should be granted is left to the sound judicial discretion of the trial court, and this Court will not disturb the trial court’s decision absent a clear showing of abuse of discretion. . .  We determine that an abuse of discretion occurred only if no judicial mind, in view of the law and the circumstances of the particular case, could reasonably have reached such a conclusion.

The abuse of discretion standard also governs a denial of a motion for mistrial based on a violation of an order in limine.  Joseph v. Kerkvliet, 2002 SD 39, ¶7 n1, 642 NW2d 533, 535 n1.  To justify a new trial for a violation of such an order, the order must have been specific and the violation clear.  Harter v. Plains Ins. Co., Inc., 1998 SD 59, ¶31, 579 NW2d 625, 633.  In addition, the violation must have been prejudicial.  Id. ¶32.

[¶7.] Motions in limine are ordinarily heard in advance of trial; they seek a court order requiring parties, attorneys, and witnesses not to disclose “certain facts unless and until permission of the court is first obtained outside the presence and hearing of the jury.”  Kjerstad v. Ravellette Publications, Inc., 517 NW2d 419, 426 (SD 1994) (quoting Lapasinskas v. Quick, 170 NW2d 318, 319 (Mich 1969).  Evidentiary rulings made by a trial court during motions in limine are preliminary and may change depending on what actually happens in trial.  Luce v. United States, 469 US 38, 41, 105 SCt 460, 463, 83 LEd2d 443 (1984).  The purpose of the motion “is to prevent prejudicial evidence from reaching the ears of the jury.”  Id.  As we noted in Kjerstad, when prejudicial matters are brought before the jury, objections or instructions can never entirely remove the harmful effect.  Depending on the nature of the motion, a court may delay ruling because of a lack of sufficient facts on which to base a decision or because it is unable to predict the effect of its ruling on the trial.  However, if the court reserves its ruling, it must then decide how it is going to handle possible mention of the subject matter during jury selection and opening statements.  Once the subject is broached, “the harm is done.”  Kjerstad, 517 NW2d at 426 (quoting Lapasinkas, 170 NW2d at 319).

[¶8.] Here, before trial, both parties submitted numerous motions in limine.  During a pretrial motions hearing, the judge set forth his policy concerning rulings on the pending forty-five motions:

I want to tell you about my rulings on these motions in limine, and that is that there aren’t going to be any rulings. . .   [I]n order to rule on them I think [I] have got to hear evidence, so I’m not going to rule on them until the time comes.  And so before you would present that evidence, you’re going to approach me and we’ll have a hearing outside of the presence of the jury with the witness on the stand and we'll take whatever evidence we need. . .[1]

Kolcraft’s attorney attempted to clarify the instruction:

            [C]orrect me if my understanding is not accurate – that if any of these issues covered by the motions in limine before we make any comments in terms of a question or statement or solicit any type of testimony from a witness, counsel is required and has the obligation, whichever side, to first come up. . .” 

Citing SDCL 15-14-1, the judge responded, “With the exception of the opening statement, and the opening statement is what you intend to prove.”[2]  There, the confusion began.

[¶9.] After vigorous disagreement by Kolcraft’s counsel, the judge gave the parties his ruling:

            [I]n this kind of case with all of these motions in limine, if I have to rule on the opening statement, that is just intolerable.  I’m just not going to blue pencil any opening statement.  You lawyers know probably in your heart of hearts what is going to come in and what isn’t.  All right.  And if you get yourself backed in a corner where you admit stuff that is later going to be a mistrial, that’s too bad.  So be it.  I’m not afraid to grant a mistrial.  I want you to understand that.  And so as far as I’m concerned, anything you want to say in the opening statement is fine.

(Emphasis added.)  Kolcraft’s counsel pressed the issue:

            But again on a lot of these motions in limine, virtually all of them, I think to permit any comment about some of these evidentiary matters that are irrelevant and would be. . extremely prejudicial to even comment about, defeats the purposes of the motions in limine.  And I would again object to any references to any of the areas covered by the motions in limine in opening statement. 

[¶10.] Plaintiff’s counsel then entered the debate, “My reading of [SDCL 15-14-1] says that the judge — it basically says you really shouldn’t make reference to particular names or exhibits unless the judge lets you.”  He then attempted to clarify the ruling:

            [J]ust so I’m clear, the defendants have really filed a motion in limine on about everything.  Some of them – well, we don’t think any of them have any merit, to be honest with you, but if I was – I want to make sure that I understand.  I can go through in opening statement, I can describe the facts?  That’s the function of opening statement, as I understand it, so that the jury can anticipate – you know – the flow of evidence, because the evidence might come in in an irregular fashion.  And then when we get on to putting on evidence, before any particular witness starts discussing any of the matters that are in the motions in limine, we’re to come and approach the bench, tell the judge that we anticipate that this witness is going to start talking about.

Kolcraft’s counsel again voiced his opposition:

            [T]he whole purpose of our motion in limine is not just to prevent the testimony, because you can always object before the witness gives the answer.  The whole purpose and fundamental concept behind a motion in limine is to prevent a comment, the question, or the statement by counsel, who pays for home warranty buyer or seller in a lot of issues just talking about it without evidence still plants that in the minds of the jury.  And that’s the reason for the motions in limine. . [A]nd to permit comment on motions in limine that are pending is prejudicial and improper, inconsistent with the rule.

[¶11.] The judge responded, “I thought [plaintiff’s counsel] stated after opening statements are done and before you call any witness that has a motion in limine, we’re going to have a hearing outside of the presence of the jury.”  To which plaintiff’s counsel replied:

            That is my understanding.  But, judge, as far as opening statement goes — I mean, I guess, in opening statement — you know — I’m trying to recall the specific motions, some that they have filed — but opening statement is not evidence.  The judge instructs the jury that the statements of counsel are not evidence.  We all know that if we make promises in opening statement that are not fulfilled in the evidence, that that will turn around and bite us at closing – at the time of closing argument.  But here is the concern that I have:  as I said, the defendants have filed a motion in limine on about everything.  If I was to strictly stay away from everything they have talked about, they will have effectively eviscerated my opening statement. . .  And I don’t think that is what opening statement is about.  It’s not evidence.  We can come here and we ought to be able to talk. . .  And so I want to – I think the correct approach is let the parties make their opening statements, stay within the boundaries of the statute as far as references to names and exhibits, then when it comes to evidence, before any actual evidence is put on, we approach the bench, we say that this is a topic that is arguably covered by a motion and address it at that point in time.  I don’t see any other way to have the procedure occur other than just both parties waving opening statement, which I think would be a great disadvantage and disservice to the jury.  And I think that’s the law.

Finally, Kolcraft’s attorney restated his opposition, summed up the judge’s order, and tried to explain the problem as he saw it:

            To permit – again, the whole fundamental concept, to permit counsel – and that’s what he wants to do and he’s making it very clear by this argument – is he wants to be able to comment on things to the jury that may not be admissible evidence.  And again, the motions in limine, just like questions of counsel, are not evidence.  It’s the testimony that is evidence.  He wants to be able to introduce things for the jury to hear about that may not be admissible in evidence, and unless the court is willing to rule on the motions in limine prior to opening statement, the only way that it can be done with any record protection and any satisfactory result for either side, is for the attorneys in opening statements to follow the rule, and also with relationship to all of the motions in limine, not comment on those items that are covered by the motions in limine.  The alternative is, [plaintiff’s counsel] is going to comment on things that are very—for the reasons we’ll urge on our motions in limine – are significant issues that need to be addressed, that we do not believe it’s proper evidence, and to get the jury to hear that, where the evidence has not been ruled on, is improper.  It puts me in a horrible position of:  do I stay quiet, or do I have to respond in turn just so that the jury hears both sides of these issues relating to is skim milk good for you that we do not believe will be admissible?  And again, it defeats the whole purposes of motions in limine to permit counsel to comment on it.

[¶12.] After plaintiff’s opening statement, Kolcraft moved for a mistrial because plaintiff’s counsel disclosed matters covered in pending motions in limine.[3]  In denying Kolcraft’s motion, the trial court reasoned:

            What the attorneys say is not evidence.  I already instructed. . I will give wide latitude to both sides on final argument, that you know they stated they were going to show this on the opening statements.  They didn’t show it, so you can take that into consideration, and I will give any special instruction in that respect that anybody requests that fits within the law. . .

At the close of Kolcraft’s opening statement, counsel stated:

            You’ll hear testimony that the fire occurred on January 12 of ’92 and in 1995, Mrs. Boone, on behalf of her child, sued the landlord for those injuries and damages and settled that case with the landlord and two years later after doing that in late 1997, nearly six years after this fire occurred. . .[4]

[¶13.] Plaintiff now contends that the judge’s order “specifically directed counsel not to mention the settlement until a definitive ruling.”  We need not tarry for long on this point.  True, the court prohibited counsel from offering evidence on matters not yet ruled on.  But the court made an exception for opening statements, leaving the field open for the attorneys to comment on whatever they chose.  At best, the court’s ruling was equivocal; at worst, it was an open invitation to disclose “anything” to the jury.  Therefore, in that the order was inexplicit, we cannot say that the prohibition was clear.  In fact, it was Kolcraft’s counsel who argued most vigorously for a prohibition on commenting on matters subject to pending in limine motions.  As one of Kolcraft’s attorneys explained at oral argument, they “pleaded” with the judge to make a ruling on the motions.  Regardless of the soundness of its reasoning, the court simply did not prohibit Kolcraft’s counsel from mentioning the prior settlement during his opening statement.  Nonetheless, having concluded that Kolcraft did not violate an in limine order, we believe it is necessary to examine the court’s decision to defer ruling on all motions in limine, effectively allowing disclosure of the settlement.  Before we can reach this more consequential issue, however, we must first address whether plaintiff sufficiently preserved a record for appeal.

[¶14.] Kolcraft’s attorney contends that plaintiff should be estopped from proceeding on this issue because plaintiff invited the error.  It was plaintiff’s counsel who argued that he should be allowed to bring up matters in opening statement that remained to be decided.  Yet, plaintiff’s counsel, like defense counsel, faced a fait accompli with the court’s ruling that it would not decide in limine motions before the actual time for introduction of evidence.  And it was the trial judge who first announced that the attorneys could divulge matters in opening statements that were awaiting the court’s later ruling.  Plaintiff’s counsel feared making an opening statement “eviscerated” of content if he could not mention any subject covered by all the www first premier bank in limine motions.  We think that with the trial court’s policy, counsel faced a dilemma for which he should not now be punished in having chosen the least of two untenable solutions.  The issue was not waived by estoppel.

[¶15.] Whether plaintiff properly objected is a more troublesome question.  Plaintiff did not expressly frame any “objection.”  The record reflects that when Kolcraft’s attorney disclosed the prior settlement to the jury, plaintiff’s counsel approached the bench and asked to make a record.  Outside the presence of the jury, plaintiff’s counsel then protested that the court’s in limine order had been violated and asked that Kolcraft be sanctioned.  We have already resolved that there was no violation.  Plaintiff did not ask for a mistrial.  In denying the request for www first premier bank sanction, the court again reiterated its position that what counsel broached to the jury was not evidence and would not be precluded.

[¶16.] Alert practitioners must remain conscious to the danger of failing to make an adequate record at trial when a motion in limine has been earlier granted or denied.  Cf. Joseph v. Kerkvliet, 2002 SD 39, ¶7, 642 NW2d 533, 535 (advising that when a motion in limine has been sustained an offer of proof should be made at trial to make sure that appeal rights are preserved).  We have adhered consistently to the precept that, in the absence of an objection or an offer of proof during trial to the admission or refusal to admit challenged evidence, an appeal from a ruling on a motion in limine is waived.  Id.  The rationale for requiring either an objection or an offer of proof is to permit trial judges an opportunity to reconsider in limine rulings with the benefit of having observed unfolding trial events.  See Luce, 469 US at 41-42, 105 SCt at 463.

[¶17.] A more anomalous problem arises here, however, in a situation where the court neither granted nor denied the motions, but nonetheless permitted counsel unrestricted disclosure of injurious material.[5]  We have warned often enough that arguments not raised in circuit court cannot be asserted for the first time on appeal.  But here the issue was thoroughly argued below, and even if a proper objection was not made, the court made a deliberate decision to defer its rulings and allow these comments.

[¶18.] We think this is one of those rare instances for invoking the plain error doctrine in a civil appeal.  Cf. Wuest ex rel. Carver v. McKennan Hosp., 2000 SD 151, ¶¶35-36, 619 NW2d 682, 691.  What value does an in limine motion have if, while postponing a decision, the court permits highly prejudicial information to be disclosed to the jury?  Although plain error is more often invoked in criminal cases, our rules also allow for its use in civil cases.  SDCL 19-9-6 (Rule 103(d)).[6]  Granted, this Court has written that the plain error rule applies only to criminal procedure and is inapplicable in civil cases.  Mayrose v. Fendrich, 347 NW2d 585, 586 (SD 1984).  For authority, however, the Mayrose Court only referred to the criminal counterpart to the civil plain error rule and omitted citing SDCL 19-9-6 (Rule 103(d)).  As South Dakota’s Professor Larson argues, “this position is in conflict with the Court’s own rule, and a refusal to correct even blatant error in a civil case is contrary to the overall sprit of the rules, as expressed in SDCL 19-9-2 (Rule 102), that 'truth may be ascertained and proceedings justly determined.’”  John W. Larson, South Dakota Evidence § 103.10[2] (Michie 1991).  Mayrose is overruled on this www first premier bank Under the plain error rule, those claiming error bear the burden of showing that the error was prejudicial.  State v. Nelson, 1998 SD 124, ¶8, 587 NW2d 439, 443 (citation omitted).  Nelson was a criminal case, but the process for examining plain error is the same.  “Plain error” requires (1) error, (2) that is plain, (3) affecting substantial rights; and only then may we exercise our discretion to notice the error if (4) it “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.”  Id.  We invoke the plain error rule in criminal cases only in “exceptional circumstances.”  Id.  Because life and liberty are not at stake in civil tort actions, we will invoke the rule even more cautiously in such cases.  Nonetheless, “while the doctrine may be rarely applied even where recognized, to say 'never’ may well invite ridicule of the entire judicial system due to a ludicrous result in a given case.”  Larson, South Dakota Evidence § 103.10[2].  We think such a circumstance exists here.  A process that allows unrestricted disclosure to a jury of prohibited matters seriously affects the fairness, integrity, and public reputation of judicial proceedings.

[¶20.] We turn to the question whether allowing mention of the previous settlement warrants a new trial.  In Degen v. Bayman, 86 SD 598, 607, 200 NW2d 134, 139 (1972), this Court wrote that although it could “visualize no circumstances where the amount involved in a release or covenant need be disclosed to the jury,” whether the simple disclosure of a settlement should be permitted would be left to the discretion of the court.  Degen approved disclosure of a settlement in order to avert collusion between the parties.  Not that Degen was wrongly decided in 1972, but it now must be considered in light of the later adoption of the Federal Rules of Evidence in 1978.  Today, admission of compromise or settlement evidence is governed by the provisions of SDCL 19-12-10 (Rule 408), which states in part:

Evidence of. . (2) accepting. . a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. . .  This section also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, [or] negativing a contention of undue delay. . .

[¶21.] This rule is designed to encourage out-of-court resolution of disputes.  It forbids admission of a settlement or settlement negotiations “to prove liability for or invalidity of the claim or its amount.”  SDCL 19-12-10 (Rule 408); Kjerstad, 517 NW2d at 427.

Withholding information or evidence of such a settlement. . from the jury. . (1) focuses the jury on the crucial questions of liability and full compensation, (2) prevents the jury from being confused or misled by its knowledge of the settlement. . .and (3) promotes fair verdicts that are consistent with the evidence presented.

Holger v. Irish, 851 P2d 1122, 1134 (Ore 1993) (Unis, J. concurring).  In sum, a defendant cannot establish the invalidity of a plaintiff’s claim by proof of the plaintiff’s settlement with a third person, nor can a plaintiff show a defendant’s liability by proof of a defendant’s settlement with a third person.  See Cleere v. United Parcel Service, 669 P2d 785, 790 (OkCtApp 1983) (citations omitted).

[¶22.] Compromises may be admissible for “another purpose,” however, such as proving the bias or prejudice of a witness, or negativing a contention of undue delay.  SDCL 19-12-10 (Rule 408); see Corn Exchange Bank v. Tri-State Livestock Auction Co, Inc. 368 NW2d 596 (SD 1985) (if defendant stands to gain financially from plaintiff’s verdict by increasing liability of codefendant, jury may be informed of settlement agreement); Degen, 200 NW2d at 139 (settlement cannot be used for collusive advantage); Roso v. Henning, 1997 SD 82, ¶13 n3, 566 NW2d 136 (SD 1997) (settlement discussions admitted to show defendant had made an appearance and had not defaulted).

[¶23.] As Justice Unis of the Oregon Supreme Court pointed out in interpreting the same rule, “when evidence of a compromise or settlement is offered for 'another purpose,’ it must. . satisfy all of the other rules of evidence.”  Holger, 851 P2d at 1132 (Unis, J. concurring).  This is because SDCL 19-12-10 (Rule 408) states that it “does not require exclusion,” implying that other rules of evidence may.  To be admissible, evidence of a settlement offered for “another purpose” must be relevant under SDCL 19-12-1 and 19-12-2 (Rules 401 and 402).  Id.  And, considering the reason for which it is offered, if the probative value of this evidence is substantially outweighed by the danger of unfair prejudice, or the other factors listed in SDCL 19-12-3 (Rule 403), the trial court may, in its discretion, exclude the evidence.  Id.

[¶24.] In explaining its reasons for wanting the prior settlement in evidence, Kolcraft’s attorney argued to the trial court that the Degen decision makes such settlements admissible and that the pleading in the earlier complaint against the landlord was an admission against interest and a prior inconsistent statement.  These reasons are insupportable.  First, as we pointed out, Degen was a pre-federal rules case, and it dealt with the collusive use of a settlement to mislead a jury.  Kolcraft does not contend that any collusion was afoot here.  Second, whatever merit the remaining contentions have, they disregard the overarching purpose of SDCL 19-12-10 (Rule 408), to make inadmissible such settlements to disprove “liability for or invalidity of the claim or its amount.”  That impermissible purpose was precisely how Kolcraft wanted to use the settlement:  to show that because there had been a previous claim against another tortfeasor (the landlord), the settlement proved the invalidity of the plaintiff’s claim against Kolcraft.  Rule 408 plainly forbids this.  SDCL 19-12-10 (Rule 408).  See also Pounds v. Holy Rosary Medical Center, 872 P2d 437, 439 n3 (OrCtApp 1994)(admission of pleadings in settled case would swallow the rule excluding evidence of settlement).

[¶25.] Kolcraft believes that if it was error to allow disclosure of the settlement, the error was not prejudicial:  “the jury never got to the issue of damages because it concluded the product was not defective.”  The verdict form, however, only indicates that the plaintiff “did not prove [the] claim[s].”  The jury could have considered the settlement as proof that the settling tortfeasor was the culpable party and that Kolcraft’s allegedly defective product was not the proximate cause of the injury.  Holger, 851 P2d at 1134  (new trial ordered when judge informed jury of third party settlement and later told jury to disregard it).  Thus, even if the jury never reached the issue of damages, improper disclosure of a prior settlement was prejudicial to proving liability.  See Foxworth v. Emanuel Hospital & Health Center, 883 P2d 917, 917-18 (OrCtApp 1994).

[¶26.] The trial judge’s distinction between disclosure in opening statements and disclosure by formal evidentiary admission ignored the essential purpose of motions in limine.  These motions seek to preclude any disclosure, not simply evidentiary admission.  As we said in Kjerstad, a motion in limine “asks the court to instruct the [party], its counsel and witnesses not to mention certain facts unless and until permission of the court is first obtained outside the presence and hearing of the jury.”  Kjerstad, 517 NW2d at 426.  In Kjerstad, the offending information was conveyed by counsel’s questions.  Id.  Trial courts have the duty in jury cases to conduct proceedings, “to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.”  Id. (quoting SDCL 19-9-5 (Rule 103 (c))) (emphasis added).  See also Brandt v. Wand Partners, 242 F3d 6, 20 (1stCir 2001) (applying Rule 408 to disclosure by argument of counsel but finding in that instance that rule had not been violated).

[¶27.] Under the facts of this case, the circuit court should have precluded any mention of the prior settlement.  Its failure to do so was an abuse of discretion.  The jury’s duty was to decide whether Kolcraft was liable for Daniel’s injuries and, if so, to find damages.[7]  Informing the jury of an earlier settlement seriously prejudiced plaintiff’s right to a fair trial.  A new trial may be granted for “[i]rregularity in the proceedings of the court, jury, or adverse party or any order of the court or abuse of discretion by which either party was prevented from having a fair trial. . .”  SDCL 15-6-59(a)(1).  Plaintiff is entitled to a new trial.

II.

Definitions of Defective Condition

[¶28.] Plaintiff contends that the trial court’s instructions defining defective condition were conflicting and confusing, and thus, they created prejudicial error.  The trial court’s Instruction 30 defined defective condition:

            A product is in a defective condition and unreasonably dangerous to the user if it is not reasonably fit for the ordinary and reasonably foreseeable purposes for which it was sold or manufactured and expected to be used.

            A product is in a defective condition unreasonably dangerous to the user if it could have been designed to prevent a foreseeable harm without significantly hindering its function or increasing its price.

            A product can be dangerous without being unreasonably dangerous.  Even if a product is defective in some manner, you must find that the defect renders the product “unreasonably” dangerous.  A product is not in a defective or unreasonably dangerous condition merely because it is possible to be injured while using it.

South Dakota Pattern Jury Instructions 150-02-1 and 150-02-2 set forth the defective condition definition and risk/utility test.[8]

[¶29.] We agree that the instruction, as given, without further guidance, was confusing.  It should have been framed in the disjunctive.  It describes two different definitions of a defective condition, but recites them without informing the jury that the plaintiff need only prove one.  In fact, the pattern jury instructions from which the court’s instruction was taken lists these definitions separately.  The court, on its own, decided to combine the instructions, leaving out the disjunctive.  This was error.  Accordingly, on the errors in allowing disclosure of the prior settlement and in failing to instruct on defective conditions in the disjunctive, the case is reversed and remanded for a new trial.

[¶30.] Although we need not reach all of plaintiff’s remaining assignments of error, we proceed to decide some of them because they will undoubtedly arise in the next trial.

III.

Cigarette Smoking Evidence

[¶31.] Plaintiff argues that the trial court erred in permitting the jury to hear expert testimony about smoking and cigarette disposal in the home as a possible origin of the fire.  Peggy Boone smoked a pack and a half of cigarettes a day.  Both Peggy and Ken Boone were smoking in the home on the day of the fire.  As Kolcraft points out, “Improper disposal of cigarettes was. . a way of life in the Boone household.  Photographs showed extensive smoking, overflowing ashtrays, and the improper disposal of cigarettes on windowsills and on floors.”  Terry Flakus, the Fire Inspector for Sioux Falls, ruled out cigarettes altogether as an ignition source because he could not find any cigarette butts in the children’s bedroom after the fire, and the burn characteristics were inconsistent with a cigarette ignition.  Thus, plaintiff asserts that no reliable foundation existed from which Kolcraft’s expert, Robert Wargin, could state that careless cigarette smoking could have been the cause of the fire.

[¶32.] Initially, plaintiff believes that Wargin’s analysis was based on the faulty foundation of cigarette smoking.  That cigarette smoking could have been the cause of the fire was the result of his analysis, not the foundation of his analysis.  Wargin studied the burn patterns and other evidence and concluded that the point of origin for the fire was not the Playard, but some item within the playpen.  Based on this conclusion, he could not rule out cigarette smoking as a cause of the fire.  He found that the fire originated inside the playpen.  In examining the Playard, he concluded that the playpen pad and fiberboard bottom showed that the fire was from the top down and not from under the playpen.  Major fuel material for the fire consisted of pillows, a quilted comforter, a blanket, and clothing draped over the playpen.  He believed that the urethane foam inside the playpen pad was not responsible for the spread of the fire.  Less than thirty percent of both the pad and fiberboard bottom were consumed in the ten-minute fire.  Finally, he deduced, through “process of elimination, the dropping of a cigarette or knocking off of cigarette ash when Daniel was placed in the Playard is the most likely cause of the fire.”  In sum, Wargin declined to begin and end his analysis on Inspector Flakus’s premise that cigarette smoking was not the cause.  Wargin was free to do so, and Kolcraft was free to present his opinion because there were sufficient facts to support it.  SDCL 19-15-3 (Rule 703).

[¶33.] Plaintiff next contends that Wargin’s testimony did not suffice to prove proximate cause.  Plaintiff, not Kolcraft, had the burden of proving proximate cause.  Wargin’s testimony was offered to refute plaintiff’s claim that the Playard was the source of the fire.  Under www first premier bank Daubert analysis, could Wargin have properly based his opinion on evidence of smoking in the Www first premier bank apartment?  Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579, 113 SCt 2786, 125 LEd2d 469 (1993).  In Daubert, the question was whether a plaintiff’s expert could testify when the methodology used was not generally accepted.  Id.  The Daubert Court reasoned that “[p]roposed testimony must be supported by appropriate validation – i.e., 'good grounds,’ based on what is known.”  Id. at 590.  “The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.”  Id. at 595.  As part of its rationale for accepting expert scientific opinion not based on generally accepted methodology, the Court stated that “vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”  Id. at 595-96.  The Court further reasoned, “These conventional devices, rather than wholesale exclusion under an uncompromising 'general acceptance’ test, are the appropriate safeguards where the basis of scientific testimony meets the standard of Rule 702 [SDCL 19-15-2].”  Id.  Wargin’s testimony fits squarely within the Supreme Court’s “traditional and appropriate means” of assailing plaintiff’s expert testimony.

[¶34.] Plaintiff would seemingly have us declare that one expert’s opinion is invulnerable.  Plaintiff argues that because other experts did not draw a definitive conclusion about the origin of the fire, one defense expert must be precluded from testifying on other causes of the fire.  By his own testimony, Inspector Flakus must have initially considered the possibility of a cigarette causing the fire.  He conducted a layer search of the burned area.  During this search he attempted to locate possible causes.  He stated that he did not find a cigarette butt; therefore, he believed careless cigarette disposal did not start the fire.  Wargin did not stop with that hypothesis.  He did not have the benefit of searching the area immediately after the fire.  However, this does not mean that he had to accept all of Inspector Flakus’s conclusions based on that search.  He was free to use his expertise to reach his own conclusions.  To Wargin, the absence of a cigarette butt only proved that a cigarette butt was not found.

[¶35.] Plaintiff argues that SDCL 19-15-3 precluded Wargin’s opinions from cox login pay bill introduced because his opinions were too remote from the known facts.  SDCL 19-15-3 (Rule 703) provides:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing.  If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. 

The Daubert Court explained Rule 703:  “Expert opinions based on otherwise inadmissible hearsay are to be admitted only if the facts or data are 'of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.’”  509 US at 595, 113 SCt at 2797-98.

[¶36.] Here, the statute allowed Wargin to base his opinion on the fact that the Boones smoked, whether their smoking habits were admissible as evidence or were inadmissible hearsay.  The only qualification is that the fact must be reasonably relied upon by other experts in the field.  Surely, the fact that the residents of the apartment smoked is a reasonable basis from which to infer that smoking may have caused a fire.  This inference is no less reasonable than an inference drawn by Flakus that smoking could not have caused the fire because there was no evidence of smoking in a particular room despite evidence of smoking everywhere else in the apartment.

[¶37.] Plaintiff states that “[n]either Wargin nor Flakus nor Kennedy asserted that other experts in the field relied upon these kinds of facts.”  On its face, the contention that Wargin could not base his opinions on the fact that the Boones smoked defies common sense.[9]  Because these experts did not testify on the subject does not suggest that an expert could not rely on such facts.  In sum, Wargin’s opinion was not remote from the known facts.

[¶38.] Plaintiff misconstrues our holding in First Western Bank Wall v. Olsen, 2001 SD 16, 621 NW2d 611.  Plaintiff portrays our holding as “the threshold for admissibility of the appraiser’s opinions was his use of reliable facts and data in evidence, his adherence to generally accepted valuation principles and his use of an accepted scientific method of valuation.”  (Emphasis added.)  Our holding in that case announced no such threshold.  The actual holding of First Western Bank Wall states, “After reviewing [the] expert testimony, it is clear that [the] opinions as to valuation were relevant and based on generally accepted valuation principles.  Use of these generally accepted principles is sufficient to establish admissibility under Kumho and Daubert.”  2001 SD 16, ¶10, 621 NW2d at 616 (emphasis added).

[¶39.] We agree with plaintiff’s assertion that the situation here is almost identical to that in Weisgram v. Marley Co., 169 F3d 514 (8thCir 1999).  In Weisgram, a fire investigator testified that:

[H]e had considered whether careless smoking might have started the fire in the sofa, but he rejected that possibility because he saw no smoking materials in the home and because he did not think the burn pattern in the sofa indicated that the fire began as the result of careless first choice bank mercerville nj. at 518 (emphasis added).  Instead, the investigator believed that a faulty baseboard heater caused the fire.  Id.  The defense, however, posed a different theory.  Their experts reasoned, “At some time that night, [the occupant] dropped a lighted cigarette behind a cushion of the sofa, which eventually started a smoldering fire.”  Id. at n4.  The only evidence of cigarette smoking was the testimony of a witness who had seen the deceased “drink an alcoholic beverage and smoke a cigarette before he left.”  Id. at 516.  While the court did not adopt the defense version of events, the scenario advanced by the defense was permitted to stand.  Id. at n4.  In comparing Weisgram with our case, we find substantial similarities.  In both cases, the defense proposed theories that the fire might have been started by careless cigarette smoking.  In neither case did the fire investigator find evidence of careless cigarette smoking in the area of the fire.  However, there is at least one difference worthy of note.  In Weisgram, the inspector failed to find any evidence of smoking in the home.  Here, there was ample evidence and testimony that cigarette smoking was occurring in the home.

IV.

Spoliation of Evidence

[¶40.] Plaintiff asks whether the trial court erred in permitting a spoliation instruction that allowed the jury to draw an adverse inference based on the loss, by plaintiff, of two pieces of evidence.  “Under our standard of review, we construe jury instructions as a whole to learn if they provided a full and correct statement of the law.”  State v. Frazier, 2001 SD 19, ¶35, 622 NW2d 246, 259 (citations omitted).  If, as a whole, the instructions misled, conflicted, or confused, then reversible error occurred.  State v. Moschell, 2004 SD 35, ¶54, 677 NW2d 551, 567 (citations omitted).  The party charging that an instruction was given in error has the dual burden of showing that the instruction was erroneous and prejudicial.  Id.  An erroneous instruction is prejudicial if in all probability it produced some effect upon the verdict and is harmful to the substantial rights of the party assigning it.  Carpenter v. City of Belle Fourche, 2000 SD 55, 609 NW2d 751.  As we explained in Carpenter, our rule on harmless error is found in SDCL 15-6-61:

No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.

[¶41.] We conclude that the court should not have given the instruction.  There was no showing that the evidence was unavailable because of bad faith or intentional conduct on the part of plaintiff or someone acting on plaintiff's behalf.  In fact, a defense expert examined the missing evidence before it disappeared and defense experts had photographs available to use in place of the actual evidence.

[¶42.] In State v. Engesser, 2003 SD 47, 661 NW2d 739, decided a year after the trial in this case, we covered how a court should determine when a spoliation instruction is warranted.  Generally, such an instruction should not be given unless there is evidence that the missing material was disposed of intentionally or in bad faith.  There was no evidence of that here.

V.

Mother’s Statement to Medical Providers

[¶43.] Plaintiff argues that the trial court erred by refusing to give a limiting instruction on the use of prior inconsistent statements and improperly allowed Kolcraft to use the statement as substantive evidence.  In her direct examination, Peggy Boone stated that she did not actually see the fire in the bedroom and did not know how it started.  On cross examination, however, she was asked:

Q:  Mrs. Boone have you ever told anyone how you think the fire started?

A:  Yes, I have.

Q:  What have you told people about how you think the fire started?

A:  I thought a blanket must have started on fire.

Q:  Who did you tell that to?

A:  I believe someone at Shriner’s Hospital and maybe John Sivesind.

Her original statement to this effect was apparently recorded on a hospital record.  Kolcraft was aware of the statement made by Peggy and wanted to use it to impeach her testimony.  After a hearing, Kolcraft agreed that it would ask only three questions as framed and drafted by plaintiff’s counsel.  Nonetheless, plaintiff interposed a timely objection to this line of questioning.

[¶44.] Plaintiff contends that Peggy’s statements were not admissible as extrinsic evidence of a prior inconsistent statement under SDCL 19-14-25 (Rule 613(b)) or an exception to the hearsay rule under SDCL 19-16-32 (Rule 804(b)(3) (statement against interest).  Assuming for argument’s sake that this evidence is hearsay, we conclude that it falls within the medical records exception.

“Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment [are admissible evidence].”  SDCL 19-16-8 (Rule 803(4)).  Such statements need not refer only to a declarant’s physical condition.  4 J. WEINSTEIN & M. BERGER, WEINSTEIN’S EVIDENCE P 803(4)[01] 1988.  Statements made for purposes of diagnosis or treatment relating to someone else may also be admissible:  “The relationship between declarant and patient will usually determine admissibility.”  Id.  In the case of a child, statements made by parents and guardians on the child’s behalf are assumed reliable and thus are admissible.  Id.

VI.

Subsequent Remedial Measures

[¶45.] To show that the product was defective at the time Daniel was burned in 1992, plaintiff offered evidence that Kolcraft began using fire retardant treated foam in all its Playard pads in 1993 or 1994.[10]  The trial court disallowed this evidence on the ground that it would cause “undue delay” under SDCL 19-12-3 (Rule 403).  Plaintiff believes that the trial court abused its discretion in excluding evidence of these remedial measures.  To plaintiff, this type of evidence is “highly probative” and should only be excluded under narrow circumstances not present here.  SDCL 19-12-9 (Rule 407) provides:

            When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event.  This section does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

[¶46.] In sum, the general rule is that subsequent remedial measures are not admissible as evidence.  This Court has nonetheless allowed evidence of subsequent remedial measures in strict products liability actions.  Shaffer v. Honeywell, Inc., 249 NW2d 251, 257 n7 (SD 1976) (drawing distinction between negligence actions and strict liability actions).  A pre-federal rules case, Shaffer deduced that while proof of such measures is not permitted in negligence actions, post-accident safety measures are admissible as evidence in strict liability cases.  The issue arose again after the Federal Rules of Evidence had been adopted in South Dakota.  Yet, without even mentioning Rule 407, the Court in Klug v. Keller Industries, Inc. 328 NW2d 847, 852 (SD 1982), reaffirmed the Shaffer rationale, finding “no compelling reason” to alter its prior holding.

[¶47.] Since Shaffer and Klug, the force of authority has swung decidedly against admitting subsequent remedial measures in strict products liability actions.[11]  There are two reasons for this.  In 1997, Congress amended FRE 407 specifically to clarify that strict liability actions are included in its prohibition.[12]  The pertinent part of the amended version now provides that “evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product’s design, or a need for a warning or instruction.”  See FRE 407 as amended (new language in italics).  South Dakota never adopted the 1997 amendment and that would perhaps end our analysis but for the fact that this Court has never interpreted SDCL 19-12-9 (Rule 407) in this type of case.  Cf. Bland v. Davison County, 1997 SD 92, ¶¶18-24, 566 NW2d 452, 458-60 (examining the rule’s impeachment exception).

[¶48.] Long before the 1997 amendment, however, most federal courts, in interpreting Rule 407 as originally drafted, had come to the conclusion that admitting evidence of subsequent remedial measures in strict products liability cases while excluding it in negligence actions inserts an unwarranted breach in the rule through which “extremely damaging” and “highly prejudicial” evidence can enter.  Cann v. Ford Motor Co., verify google my business account F2d 54, 60 (2dCir 1981), cert. denied, 456 US 960, 102 SCt 2036, 72 LEd2d 484 (1982) (citations omitted).  See Wood v. Morbark Indus., Inc., 70 F3d 1201, 1206-07 (11thCir 1995); In re Joint E. Dist. and S. Dist. Asbestos Litig. v. Armstrong World Indus., Inc., 995 F2d 343 (2dCir 1993); Kelly v. Crown Equip. Co., 970 F2d 1273, 1275-76 (3dCir 1992); Raymond, 938 F2d at 1522‑23; Gauthier v. AMF, Inc., 788 F2d 634, 636‑37, amended, 805 F2d 337 (9thCir 1986); Flaminio v. Honda Motor Co., 733 F2d 463, 468-72 (7thCir 1984); Grenada Steel Indus., Inc. v. Alabama Oxygen Co., 695 F2d 883, 888 (5thCir 1983); Hall v. American S.S. Co., 688 F2d 1062, 1066-67 (6thCir 1982); Werner v. Upjohn Co., 628 F2d 848, 858 (4thCir 1980), cert. denied, 449 US 1080, 101 SCt 862, 66 LEd2d 804 (1981); Bauman v. Volkswagenwerk Aktiengesellschaft, 621 F2d 230, 232 (6thCir 1980).  Only the Eighth and Tenth Circuits followed a contrary interpretation before the 1997 amendment.  See Burke v. Deere & Co., 6 F3d 497, 506 (8thCir 1993) cert. denied, 510 US 1115, 114 SCt 1063, 127 LEd2d 383 (1994) (superceded by FRE 407, as amended); Huffman v. Caterpillar Tractor Co., 908 F2d 1470, 1480-81 (10thCir 1990) (same); Robbins v. Farmers Union Grain Terminal Association, 552 F2d 788, 793 (8thCir 1977) (applying South Dakota law and quoting Shaffer).

[¶49.] Likewise, those states adopting some form of FRE 407 also paralleled federal jurisprudence, interpreting their rules to exclude subsequent remedial measures in both negligence and strict products liability cases.  See, e.g., Hyjek v. Anthony Indus., 944 P2d 1036, 1039, 1042-43 & nn 6-7 (Wash 1997) (citing cases); Cyr v. J.I. Case Co., 652 A2d 685, 693 (NH 1994); Krause v. American Aerolights, Inc., 762 P2d 1011, 1013 (Or 1988); Kallio v. Ford Motor Co., 407 NW2d 92, 97-98 (Minn 1987); Rix v. Gen. Motors Corp., 723 P2d 195, 202 (Mont 1986); Hallmark v. Allied Prod. Corp., 646 P2d 319, 325-26 (ArizCtApp 1982).  See generally Annotation, Admissibility of Evidence of Subsequent Repairs or Other Remedial Measures in Products Liability Cases, 74 ALR3d 1001.

[¶50.] Rule 407 was designed to ensure that the threat of legal liability would not discourage remedial measures to improve products.  Thus, the rule seeks to motivate manufacturers to make improvements without fearing the legal ramifications of their remedial acts.  The rule accomplishes this by removing the threat that product improvements will be used as evidence against manufacturers.  Duchess v. Langston Corp., 769 A2d 1131, 1143 (Pa 2001) (continual process of improvement and innovation in the marketplace favors broader application of evidentiary exclusion).  This purpose would seem to apply equally to negligence and strict liability actions, so we find it difficult to comprehend why the public policy behind Rule 407 should be construed differently in cases based on strict liability.  From the viewpoint of manufacturers, it www first premier bank the fact that the evidence will be used against them that inhibits subsequent repairs or improvements.  For them, what difference does it make under which theory the evidence might be admitted?  Werner v. Upjohn Co., 628 F2d 848, 857 (4thCir 1980).

[¶51.] As Judge Posner explained in Flaminio, the attempted distinction between negligence and strict liability in relation to Rule 407 is “purely semantic.”  733 F2d at 469.

The analysis is not fundamentally affected by whether the basis of liability is the defendant’s negligence or his product’s defectiveness or inherent dangerousness.  In either case, if evidence of subsequent remedial measures is admissible to prove liability, the incentive to take such measures will be reduced.

Id. (citing Birchfield v. Int’l Harvester Co., 726 F2d 1131, 1139 (6thCir 1984)) (citations omitted).

[¶52.] Introducing evidence of subsequent remedial measures tends to divert the jury’s attention from whether the product was defective at the time it was manufactured and sold to some later time.  South Dakota’s statutory language governing products liability supports the conclusion that SDCL 19-12-9 (Rule 407) applies to strict products liability actions.  The point of time for assessing liability for the defective product in question is the time the product was “first sold.”  SDCL 20-9-10.1.[13]  If the time of product sale is the point for deciding liability in strict liability cases, then product knowledge acquired after that point becomes irrelevant.  Hyjek, 944 P2d at 1042-43.

[¶53.] We find the distinction conceived in Shaffer and Klug between negligence and strict liability to be indiscernible in relation to Rule 407 and overrule those two cases to the extent that they hold to the contrary.  The general prohibition against admitting evidence of subsequent remedial measures embodied in SDCL 19-12-9 (Rule 407) precludes use of subsequent design changes as substantive evidence of a product defect in a strict products liability case.

[¶54.] Although not arguing that any relevant exception to Rule 407 applies, plaintiff contends that probative value is not in question here because the trial court refused to admit the evidence based on undue delay of the proceedings.  We think policy considerations in Rule 407 favor the general rule of exclusion, but we cannot say, in view of the state of the law at the time of trial, that it was an abuse of discretion to invoke the “undue delay” language in Rule 403 to preclude this evidence.  Certainly, lack of sufficient probative value or unfair prejudice can be advanced as independent grounds for the general exclusion of subsequent remedial evidence under Rule 403.  Luda Foster v. Ford Motor Co., 621 F2d 715, 721 (5thCir 1980); FRE 407 advisory committee note.  We find no abuse of discretion.

VII.

Nonfunctioning Smoke Detector

[¶55.] At the time Daniel was burned, an ionizing smoke detector was in the hallway outside his bedroom, but it had no batteries.  Plaintiff argues that the trial court abused its discretion by allowing Kolcraft to present evidence of this nonfunctioning smoke detector in the Boone apartment.  “Proof of causation,” plaintiff contends, “or lack thereof, must be based on the evidence in the record, and not 'mere suggestion’ or 'speculation.’”  (Emphasis added.)  Plaintiff cites Engberg v. Ford Motor Co., 87 SD 196, 202, 205 NW2d 104, 107 (1973) and Klein v. W. Hodgman & Sons, Inc., 77 SD 64, 68, 85 NW2d 289, 292 (1957) as standing for this proposition.  These cases did not pass the burden of proving causation onto the defense.  A proper reading of Engberg and Klein reveals only that “mere suggestion” or “speculation” on the part of the defense is not enough to prevent a jury from performing its duty as the finder of fact.

[¶56.] In Engberg, we held that plaintiffs meet their burden of proof on causation when the evidence is sufficient for the jury to conclude, without speculation, that the preponderance of the evidence favors liability.  Engberg, 87 SD at 202, 205 NW2d at 107.  “We find [no] merit in the defendant’s argument that the mere suggestion of other causes of the decedent’s death made the plaintiff’s theory of causation a matter of speculation.”  Id.  In Klein, we reasoned that the “mere suggestions” of other possible causes did not preclude the trial court from submitting the issue of causation to the jury:

            Plaintiff had the burden, not only of proving that defendant was responsible for some negligent act, but that such act was the proximate cause of her injury and damage. . .  We agree with the Circuit Court of Appeals for the Eighth Circuit that 'A theory of proximate cause resting in probative circumstances does not become a matter of speculation and conjecture by a mere suggestion of other possible causes which are unsupported by any proved facts.’  The evidence as to the proximate cause of the accident presented a question of fact to be resolved by the jury.

Klein, 77 SD at 67-68, 85 NW2d at 291-92 (internal citations omitted) (emphasis added).

[¶57.] Plaintiff next argues that because contributory negligence is not a permissible defense to a strict liability action, the purpose of testimony regarding the smoke detector was to discredit Peggy Boone.  Plaintiff further argues that no amount of remediation by the trial court could lessen the prejudicial effect of this evidence.

[¶58.] Directly after testimony concerning the smoke detector, the trial court directed the jury’s attention to Preliminary Instruction 9.  The trial court then read the instruction:

            You are instructed that evidence about the smoke detector in the Boone apartment is being received solely on the issue of whether an earlier warning of the fire may have reduced or prevented the plaintiff’s injuries, Daniel Boone’s injuries.  You shall not consider this evidence for any other purpose.  The conduct of the plaintiff or his parents is not a defense to the plaintiff’s strict liability claim. 

In addition to this instruction, Instruction 36, entitled, “Contributory Negligence Is No Defense,” was given to the jury.  The instruction states, “The contributory negligence of plaintiff or of his parents, if any, is not a defense to plaintiff’s strict liability claim.”  We presume that juries will follow the court’s instructions.  Hossle v. Fountain, 1999 SD 104, ¶9, 598 NW2d 877, 879.  In these circumstances, the court did not err in allowing this testimony.

VIII.

Proximate Cause

[¶59.] Lastly, we address Kolcraft’s notice of review question on its claim that proof of proximate cause was lacking as a matter of law.  In trial, plaintiff alleged that (1) California law requires that all upholstered furniture sold in the state be fire resistant; (2) Kolcraft manufactured its Playard with vinyl pads containing fire retardant treated foam for sale in California at the same time that it manufactured the same Playard pads containing untreated foam for sale in other states; and (3) untreated foam ignites easier and burns at a more rapid rate than treated foam.  Kolcraft argues that all the evidence presented at trial, including the tests performed by plaintiff's own experts, proved that the pads, as covered by thin vinyl, burned the same way regardless of whether they contained treated or untreated foam.  If treated and untreated pads burn the same, Kolcraft reasons, then use of an untreated pad could not have proximately caused the child’s injuries.  Kolcraft also asserts the evidence was legally insufficient to support a finding that failure to warn proximately caused the child’s injuries:  because both treated and untreated Playard pads burn the same way, they are equally safe and therefore Kolcraft had no duty to warn.

[¶60.] Kolcraft moved for summary judgment before trial and a directed verdict at the end of trial, arguing that as a matter of law plaintiff could not prove the Playard proximately caused Daniel’s injuries.  Both motions were denied.  We think it advisable to review only the directed verdict decision because a ruling under SDCL 15-6-50 is based on the full trial record, not the limited pretrial record available at the time of the summary judgment decision.  Motions for directed verdict under SDCL 15‑6‑50(a) test whether sufficient evidence was produced to meet the legal threshold necessary to sustain the action.  Schuldies, 1996 SD 120, ¶8, 555 NW2d at 94 (citations omitted).  Without weighing the evidence or considering questions of credibility, all evidence with its reasonable inferences must be viewed in a light most favorable to the nonmoving party.  Id.  If there is sufficient evidence adverse to the motion such that reasonable jurors might reach a different result, then the motion must be denied.  Id.  On review, we will reverse the circuit court only if reasonable minds could come to no conclusion other than one favoring the movant.  Id.  Rulings on such motions are presumed correct and we will not seek reasons to reverse.  Id.

[¶61.] Flakus, one of the experts called by plaintiff, theorized that the masonite floorboard in the playpen sustained thermal degradation because of its long proximity to a hot water baseboard heater in the children’s bedroom.  The playpen had been pushed against this heater and it had been turned on high for a long time.  This caused “pyrolytic ignition.”  Nonetheless, plaintiff argued that the source of ignition was immaterial because if the playpen had been constructed with fire retardant materials, the child would not have been injured.  If flame retardant foam had been used, as in California, plaintiff's experts thought the fire would have been suppressed.  Defense experts opined that the playpen itself did not ignite initially, but that something (cigarette) first ignited the bedding in the playpen.  Bunsen burner flame tests indicated that with their vinyl covering the playpen pads did not remain ignited once the flame was removed, regardless of whether the pads contained treated or untreated foam.  Yet, these tests did not attempt to duplicate the conditions in the child’s bedroom at the time of the fire.

[¶62.] Proximate or legal cause is a cause that produces a result in a natural and probable sequence and without which the result would not have occurred.  Such cause need not be the only cause of a result.  It may act in combination with other causes to produce a result.  SDCL 21-3-1; Estate of Gaspar, 2003 SD 126, ¶6, 670 NW2d 918, 921.  Causation is almost always a fact question, “except when there are no differences of opinion on the interpretation of the facts.”  Id. at ¶5.  In examining the evidence in a light most favorable to plaintiff, we think reasonable minds could differ on the proper outcome.  Jurors were required to weigh conflicting opinions between several experts and find whether the facts supported one opinion over another.  The circuit court properly denied Kolcraft’s motion for directed verdict.

[¶63.] Affirmed in part, reversed in part, and remanded for a new trial.

[¶64.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and MEIERHENRY, Justices, concur.


[11].         For an early law review article foreseeing the coming changes based on Rule 407, see Barbara Strong Goss, SUBSEQUENT REMEDIAL MEASURES IN STRICT LIABILITY:  LATER OPINIONS AS EVIDENCE OF DEFECTS IN EARLIER REASONING, 32, Cath U L Rev 895 (1983).

[12].         According to the Advisory Committee notes, Rule 407 has been amended to provide that evidence of subsequent remedial measures may not be used to prove “a defect in a product or its design, or that a warning or instruction should have accompanied a product.  This amendment adopts the view of a majority of the circuits that have interpreted Rule 407 to apply to products liability actions.”

[13].         SDCL 20-9-10.1 provides:

Product liability - Action on negligence or strict liability - Standard of care - Consideration of conformity at time of manufacture.

Источник: https://law.justia.com/cases/south-dakota/supreme-court/2004/1318.html

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  • Earn 1% Cash Back on all purchases with your Deserve EDU Mastercard. Once approved, you’ll automatically start earning cash back on all purchases.
  • Feel secure with cell phone protection up to $600.
  • No deposit required. No annual fees.
  • No international transaction fees on purchases abroad so you can travel with confidence.
  • No Social Security Number required for international students to apply.
  • Refer A Friend Program: Refer anyone to Deserve using your personal referral code. Upon approval, card activation and use, you’ll receive $30 and so will your referral. Referral bonuses are unlimited!
  • Manage and track your spending, set automatic payments and securely freeze your card all through one easy to use app.
  • See if you prequalify with no impact to your credit score in minutes.
  • Deserve Mastercards are issued by Celtic Bank, Member FDIC.
  • Enjoy Mastercard Platinum Benefits intended to make your life easier like Mastercard ID Theft Prevention™ and Master Rental®.

Best Secured Starter Card For Those Starting Out

Discover it® Secured Credit Card

Welcome Bonus

Cashback Match™

Regular APR

22.99% Variable

Credit Score

New/Rebuilding Credit

Why We Picked It

In the secured credit world, the Discover it® Secured Credit Card stands above the competition. With an unlimited 1% cash back rate on all purchases, plus 2% cash back at gas stations and restaurants on up to $1,000 in combined purchases each quarter, no penalty APR and no annual fee, we love this card for those who need to rebuild their credit. The matching cash back reward at the end of your first year is a sweet bonus.

Pros & Cons

  • No annual fee
  • Cash back rewards earning is uncommon for a secured card
  • Free FICO score access each month
  • Cashback Match doubles cash back rewards earning at the end of the first year
  • Rewards are capped
  • Secured cards don’t provide many of the perks unsecured cards do
  • Secured cards require refundable deposits

Card Details

  • No Annual Fee, earn cash back, and build your credit with responsible use.
  • Using your secured credit card helps build a credit history with the three major credit bureaus. Generally, prepaid and debit cards can’t do that.
  • Establish your credit line with your tax return by providing a refundable security deposit of at least $200. Bank information must be provided when submitting your deposit.
  • Automatic reviews starting at 7 months to see if we can transition you to an unsecured line of credit and return your deposit.*
  • Earn 2% cash back at Gas Stations and Restaurants on up to $1,000 in combined purchases each quarter. Plus, earn unlimited 1% cash back on all other purchases – automatically.
  • Discover is accepted nationwide by 99% of the places that take credit cards.
  • Get 100% U.S. based customer service & get your free Credit Scorecard with your FICO® Credit Score.
  • Intro Offer: Unlimited Cashback Match – only from Discover. Discover will automatically match all the cash back you’ve earned at the end of your first year! There’s no minimum spending or maximum rewards. Just a dollar-for-dollar match.
  • Get an alert if we find your Social Security number on any of thousands of Dark Web sites.* Activate for free.
  • Click “Apply Now” to see rewards, FICO® Credit Score terms, Cashback Match™ details & other information.

Best For Those With Good Checking Account History

Petal® 2 “Cash Back, No Fees” Visa® Credit Card

Up to 10% cash back

1% cash back on eligible purchases right away. Up to 1.5% cash back on eligible purchases after making 12 on-timeRead More

Regular APR

12.99% - 26.99% (Variable)

Credit Score

Limited/Fair/Good/Excellent

Why We Picked It

If you have no credit or limited credit, the Petal 2 Credit Card is our first choice. You can check to see if you're pre-approved without impacting your credit score (a process that uses a "soft pull"). This card is light on fees, so if you don't carry a balance you may be able to build a solid credit history with responsible use while limiting your exposure to fees. However, those with missed payments or a bankruptcy on their credit report are unlikely to be approved.

Pros & Cons

  • No fees: no annual fee, no foreign transaction fee, no late fee, no over limit fee
  • No security deposit
  • No credit history required
  • No intro APR offer
  • No cash advances or balance transfers
  • Applicants with a damaged credit report may not qualify

Card Details

  • No fees whatsoever. No late fee, foreign transaction fee, annual fee, or any-other-kind-of-fee, fee.
  • Up to 1.5% cash back on eligible purchases after making 12 on-time monthly payments.
  • 1% cash back on eligible purchases right away
  • 2% – 10% cash back at select merchants
  • $300 – $10,000 credit limits
  • Variable APRs range from 12.99% – 26.99%
  • No credit score? No problem. If eligible, we’ll create your Cash Score instead.
  • See if you’re pre-approved within minutes without impacting your credit score.
  • Build credit alongside hundreds of thousands of Petal Card members.
  • Petal reports to all 3 major credit bureaus.
  • No deposits required
  • Card issued by WebBank, Member FDIC

Best For Students Starting To Establish Credit

Bank of America® Travel Rewards credit card for Students *

Bank of America® Travel Rewards credit card for Students

1.5X Reward Rate

Earn unlimited 1.5X points for every $1 you spend on all purchases everywhere, every time and no expiration on points

Welcome Bonus

25,000 points

Regular APR

13.99% - 23.99% Variable APR on purchases and balance transfers

Credit Score

Good/Excellent (700 - 749)

Why We Picked It

Students studying abroad will pay no foreign transaction fees (and no annual fee) while earning flat-rate rewards points with flexible travel redemption options. This isn't a good card for balance transfers, however, as the intro APR offer only applies to purchases.

Pros & Cons

  • Flexible rewards redemption options
  • Unlimited 1.5 points per $1 on all spending
  • No foreign transaction fee
  • Easy-to-earn welcome bonus
  • High balance transfer fee.
  • No bonus categories to boost rewards.
  • No intro APR offer on balance transfers.
  • High penalty APR and late fee.

Card Details

  • Earn unlimited 1.5 points for every $1 you spend on all purchases everywhere, every time and no expiration on points
  • 25,000 online bonus points if you make at least $1,000 in purchases in the first 90 days of your account opening – which can be redeemed for a $250 statement credit toward travel purchases
  • No annual fee and no foreign transaction fees
  • Chip Cards now with chip technology for enhanced security and protection when making purchases at chip-enabled terminals in over 130 countries
  • 0% Introductory APR for 12 billing cycles for purchases.

Best Overall Card For Established Credit

Chase Freedom Flex℠

Up to 5X Reward Rate

Earn 5% cash back on eligible purchases in rotating categories, 5% on Chase travel purchased through Chase Ultimate Rewards®, 3%Read More

Regular APR

14.99% - 24.74% Variable

Credit Score

Excellent, Good (700 - 749)

Why We Picked It

This card has the brawn to handle just about all of your credit card spending needs without an over-inflated price tag. The card has an annual fee of $0, yet comes with a pumped-up earnings structure that covers a wide swath of expenses including travel, drugstores and dining plus rotating quarterly bonus categories in areas many households are likely to find appealing.

Pros & Cons

  • No annual fee
  • Rotating quarterly categories earn 5% rewards when activated, up to a combined quarterly $1,500 maximum
  • Travel rewards rate rivals some of the best premium travel cards
  • Generous rewards rate in several other categories
  • Travel bookings must be made through Chase Ultimate Rewards® to earn 5% cash back

Card Details

  • Earn a $200 Bonus after you spend $500 on purchases in your first 3 months from account opening.
  • 5% cash back on grocery store purchases (not including Target® or Walmart® purchases) on up to $12,000 spent in the first year.
  • 5% cash back on up to $1,500 in combined purchases in bonus categories each quarter you activate. Enjoy new 5% categories each quarter!
  • 3% cash back on dining at restaurants, including takeout and eligible delivery services
  • 3% cash back on drugstore purchases
  • 5% cash back on travel purchased through Chase Ultimate Rewards®, and 1% on all other purchases.
  • 0% Intro APR for 15 months from account opening on purchases and balance transfers, then a variable APR of 14.99% – 24.74%.
  • No annual fee.

Best For First-Year Welcome Bonus

Discover it® Cash Back

Up to 5% Reward Rate

Earn 5% cash back on everyday purchases at different places each quarter like Amazon.com, grocery stores, restaurants, gas stations andRead More

Welcome Bonus

Cashback Match™

Regular APR

11.99% - 22.99% Variable

Credit Score

Excellent/Good (700 - 749)

Why We Picked It

For moderate spenders who are willing to activate the 5% rotating categories and track the quarterly spending cap, this no-annual-fee card can deliver tidy rewards outside of its ongoing 1% earning rate.

Pros & Cons

  • 5% cash back on quarterly rotating spending categories throughout the year
  • Discover will automatically match all the cash back you’ve earned at the end of your first year
  • No minimum cashback redemption
  • 5% bonus cashback rate is limited to $1,500 per quarter in spending
  • Bonus categories must be activated bank of america share price today 1% base reward rate on everything else

Card Details

  • Intro Offer: Unlimited Cashback Match – only from Discover. Discover will automatically match all the cash back you’ve earned at the end of your first year! There’s no minimum spending or maximum rewards. You could turn $150 cash back into $300.
  • Earn 5% cash back on everyday purchases at different places each quarter like Amazon.com, grocery stores, restaurants, gas stations and when you pay using PayPal, up to the quarterly maximum when you activate.
  • Plus, earn unlimited 1% cash back on all other purchases – automatically.
  • Redeem cash back in any amount, any time. Rewards never expire.
  • Use your rewards at Amazon.com checkout.
  • No annual fee.
  • Discover is accepted nationwide by 99% of the places that take credit cards.
  • Click “Apply Now” to see rewards, FICO® Credit Score terms, Cashback Match™ details & other information.

Best Starter Rewards For Those With Some Credit History

Citi® Double Cash Card

Regular APR

13.99% - 23.99% (Variable)

Credit Score

Excellent, Good (700 - 749)

Why We Picked It

The Citi Double Cash card's simple cash back structure and long lasting APR offer make the Citi Double Cash a favorite among those who want to set it and forget it. It offers a solid cashback rate on all purchases, plus a long-lasting 0% intro APR offer, all without an annual fee.

Pros & Cons

  • Earn up to 2% cash back—1% when the purchase is made and 1% when payment is made on the account
  • No cash back cap—no limit on the amount of cash back that can be earned
  • No annual fee
  • Introductory APR period for balance transfers
  • Foreign transaction fee
  • Balance transfer fee
  • Lack of benefits seen in other no annual fee cards
  • No introductory 0% APR on purchases

Card Details

  • Earn 2% on every purchase with unlimited 1% cash back when you buy, plus an additional 1% as you pay for those purchases.
  • To earn cash back, pay at least the minimum due on time.
  • Balance Transfer Only Offer: 0% intro APR on Balance Transfers for 18 months. After that, the variable APR will be 13.99% – 23.99%, based on your creditworthiness.
  • Balance Transfers do not earn cash back. Intro APR does not apply to purchases.
  • If you transfer a balance, interest will be charged on your purchases unless you pay your entire balance (including balance transfers) by the due date each month.
  • There is an intro balance transfer fee of 3% of each transfer (minimum $5) completed within the first 4 months of account opening. After that, your fee will be 5% of each transfer (minimum $5).
  • The standard variable APR for Citi Flex Plan is 13.99% – 23.99% based on your creditworthiness. Citi Flex Plan offers are made available at Citi’s discretion.

Best Simple Rewards For Those With Some Credit History

Capital One QuicksilverOne Www first premier bank Rewards Credit Card

Regular APR

26.99% (Variable)

Credit Score

Average, Fair, Limited

Why We Picked It

A great option for those with less-than-stellar credit, this card offers a gateway to building better credit while earning a respectable 1.5% cash back rewards rate. You may also gain a higher credit line in as little as 6 months from account opening.

Pros & Cons

  • Unlimited 1.5% cashback rewards
  • Average credit applicants considered
  • No foreign transaction fee
  • Rewards don’t expire
  • High APR
  • No bonus spending categories to boost rewards
  • No welcome offer
  • No intro APR offer

Card Details

  • Earn unlimited 1.5% cash back on every purchase, every day
  • Earn cash rewards without signing up for rotating categories
  • Be automatically considered for a higher credit line in as little as 6 months
  • Monitor your credit profile with the CreditWise® app, free for everyone
  • $0 fraud liability if your card is ever lost or stolen
  • No limit to how much cash back you can earn, and cash back doesn’t expire for the life of the account
  • Help strengthen your credit for the future with responsible card use
  • Get customized alerts and manage your account with the Capital One mobile app
Источник: https://www.forbes.com/advisor/credit-cards/best/first-credit-card/
First Premier Bank/Premier Bankcard logo

First Premier Bank/Premier Bankcard

Company Data

Address:3820 N Louise Ave, Sioux Falls, South Dakota, 57107, United States
Company revenue:$100 - 999 M

NAICS Code522110

SIC Code6022

Show More

Finance

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Frequently Asked Questions regarding First Premier Bank/Premier Bankcard:

FAQ regarding First Premier Bank/Premier Bankcard:

Where is First Premier Bank/Premier Bankcard’s headquarters?

First Premier Bank/Premier Bankcard’s headquarters is in 3820 N Louise Ave Sioux Falls South Dakota 57107, United States

What is First Premier Bank/Premier Bankcard’s phone number?

First Premier Bank/Premier Bankcard’s phone number is (605)-357-3440

What is First Premier Bank/Premier Bankcard’s official website?

First Premier Bank/Premier Bankcard’s official website is firstpremier.com

What is First Premier Bank/Premier Bankcard’s revenue?

First Premier Bank/Premier Bankcard’s revenue is $100 - 999 M

What is First Premier Bank/Premier Bankcard’s SIC code?

First Premier Bank/Premier Bankcard’s SIC code is 6022

What is First Premier Bank/Premier Bankcard’s NAICS code?

First Premier Bank/Premier Bankcard’s NAICS code is 522110

What is First Premier Bank/Premier Bankcard’s industry?

First Premier Bank/Premier Bankcard is in the industry: Finance

How many employees are working in First Premier Www first premier bank Bankcard?

First Premier Bank/Premier Bankcard has 1,001-5,000 employees

What is First Premier Bank/Premier Bankcard’s tech stack?

First Premier Bank/Premier Bankcard uses these technologies: jQuery, Google API, Google Analytics, PHP, Apache HTTP Server, Akamai CDNSee More

Источник: https://infotelligent.com/company/metabank/company/1506768

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Источник: https://www.investopedia.com/first-premier-bank-gold-mastercard-review-4846194
Man laughing and working in coffee shop

Discover what millions of our cardholders already know — we believe in helping good people build credit. The First PREMIER® Bank Mastercard® Credit Card has great benefits and valuable tools for those who’d like to make financial progress.

Access

available credit when you need it

Go

Choose

from an unsecured or secured credit card to meet your credit needs

See

Expect

pricing that’s upfront and easy to understand

Star

Rely

on decades of experience and the security of Mastercard

Learn More

With First PREMIER on Your Side, the Future Is Bright

What are your dreams for the future? Chances are, credit plays some part in your goals. That’s where we come in. Improving your credit history can help you achieve your dreams.1 That’s why our cards offer:

  • Manageable credit limits with increases available2
  • An opportunity to build your credit history1
  • Regular reporting to the major Consumer Reporting Agencies (credit bureaus)

Son riding on father's back

Your Second Chance is Secured

Woman selecting flowers in outdoor marketFirst PREMIER Bank Secured Credit Card

If life has thrown you a financial curveball, it can seem overwhelming. As you start rebuilding, it may be difficult to get approved for credit products like cards or loans. Since 1989, we’ve been helping folks with less-than-perfect credit get back on their feet. Our First PREMIER Bank Secured Credit Card gives you the opportunity to get the second chance you deserve with:

  • No credit history required to apply
  • A refundable security deposit3
  • The chance to access a higher credit line2

Apply NowLearn More

"PREMIER gave me an opportunity to rebuild my credit. I appreciate them opening that avenue to me again."

Robbin J. - New York

5 Star Rating

The Tools to Help You Succeed

Woman on couch using laptop

First PREMIER provides useful knowledge and tools to help you manage your credit with confidence. We are more than a credit card issuer — we are your partner and are here to support your success. You can take advantage of:

  • 24/7 online account access
  • Automatic payment reminders
  • Free FICO® credit score
  • Paperless statements
  • Text or email alerts for purchase limits, PIN changes, and more

By Your Side, Wherever You Go

Easily manage your First PREMIER Credit Card on-the-go with our mobile app. You can view recent transactions, and make payments or changes to your account right from your mobile device. Download it from the Apple App Store or Google Play Store.

Download on the App Store
Get it on Google Play
PREMIER Credit Card mobile app

Customer-first Care and Support

As the 12th largest issuer of Mastercard credit cards, First PREMIER Bank understands our www first premier bank needs. Based in the United States and available six days a week, our friendly customer service associates are ready and able to help you get the answers you need quickly.

Our customers have given us:

4.5 Average Star Rating

4.5/5 star rating

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Apply now

Customer Feedback

4.5 Average Star Rating

4.5/5 average rating

Geraldine Q. - Nevada

5 Star Rating

Julie R. - California

5 Star Rating

Liliana G. - Texas

5 Star Rating

Michelle M. - Nevada

5 Star Rating

Disclosures

  1. Build credit by keeping your balance low and paying all your bills on time every month.
  2. Credit limit increase eligibility upon request, after you've been with us for 13 months and have kept your account in good standing (on-time payments and staying within the credit limit).
  3. A refundable security deposit means you get your money back if you have a zero balance and the account is closed.
Источник: https://www.mypremiercreditcard.com/
www first premier bank

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