Delaney v. Rapid Response, Inc.

Decision Date23 January 2015
Docket NumberNo. CIV. 12–5076–JLV.,CIV. 12–5076–JLV.
Citation81 F.Supp.3d 769
PartiesJohn DELANEY, Guardian Ad Litem and Special Limited Conservator of Andy R. Davis, a Protected Person; Shannon Humann Davis, Individually, and as Guardian Ad Litem of KKD, minor child; and Destyn Humann, Plaintiffs, v. RAPID RESPONSE, INC.; Mark A. DeProw; and Rapid Response 1, LLC, Defendants.
CourtU.S. District Court — District of South Dakota

Kenneth E. Barker, Michael A. Wilson, Barker Wilson Law Firm, LLP, Rapid City, SD, for Plaintiffs.

J. Crisman Palmer, Gunderson, Palmer, Goodsell & Nelson, LLP, Rapid City, SD, Richard Dale, American Family Insurance, Sioux Falls, SD, for Defendants.


JEFFREY L. VIKEN, Chief Judge.


Plaintiffs John Delaney, guardian ad litem and special limited conservator of Andy R. Davis, a protected person, Shannon Humann Davis, individually, and as guardian ad litem of KKD, minor child, and Destyn Humann (hereinafter all plaintiffs are referenced collectively as “Mr. Davis”) bring this diversity action alleging negligence causing personal injury and seeking compensatory damages plus prejudgment interest and disbursements from Rapid Response Inc., Rapid Response 1, LLC and Mark A. DeProw. (Docket 36). Mr. Davis alleges that Rapid Response, Inc., Rapid Response 1, LLC and Mark DeProw are liable for injuries suffered by Andy Davis as a result of a motorcycle accident caused by Mr. DeProw's negligence. Id. Defendants deny Mr. DeProw acted negligently and deny any liability for the injuries suffered by plaintiffs. See Docket 41. On January 14, 2014, this court entered an order granting Mr. Davis' motion for partial summary judgment against Rapid Response, Inc. on the issues of liability and causation.1 (Docket 31). On July 18, 2014, Mr. Davis filed a motion for partial summary judgment against Rapid Response 1, LLC on the issues of liability and causation. (Docket 51). Rapid Response 1, LLC did not respond to Mr. Davis' motion for partial summary judgment.


Having reviewed Mr. Davis' statement of material facts in conjunction with the submitted affidavits, the court finds Mr. Davis' statement provides an accurate portrayal of the events and circumstances surrounding Mr. Davis' claim. See Dockets 23, 26, 52, 54, 55. Defendants failed to respond to Mr. Davis' statement of material facts and have waived any objections to plaintiffs' statement of material facts. Pursuant to Federal Rule of Civil Procedure 56(e)(2), defendants' failure to controvert Mr. Davis' statement of undisputed material facts means those facts are admitted for purposes of the case. See also D.S.D. Civ. LR 56.1D. The court incorporates Mr. Davis' statement of material facts by reference. (Dockets 23 & 52). A brief description of material facts follows.

On July 24, 2012, Mark DeProw was operating a semi-tractor and trailer traveling westbound on Highway 212. He was looking for American Colloid to pick up a cargo load for his employer, Rapid Response Inc. (Docket 23 at ¶ 1–2). At the location of the accident, Highway 212 consisted of two westbound lanes, a turning lane and one eastbound lane. Id. at ¶ 3. Mr. DeProw was traveling in the far right-hand lane closest to the north curb. Id. at ¶ 2. Mr. DeProw made a “U-turn” from the far right-hand lane. Id. at ¶ 4. Mr. DeProw's semi-tractor and trailer (“semi”) blocked all lanes of travel on Highway 212 while he completed the U-turn. Id. at ¶ 8.

Matthew Hoffman was operating a service truck traveling westbound on Highway 212. Id. at ¶ 5. Mr. Hoffman was behind Mr. DeProw at the time he made the U-turn. Id. Andy Davis was operating a motorcycle traveling westbound on Highway 212. Id. at ¶ 6. Andy was initially behind Mr. Hoffman's service truck. Id. At approximately the same time Mr. DeProw made the U-turn, Andy changed lanes from the right-hand lane to the left-hand lane in an attempt to pass Mr. Hoffman. Id. at ¶ 7. With Mr. Hoffman's service truck on his right and Mr. DeProw's semi directly ahead occupying all the traffic lanes, Andy had nowhere to go and could not avoid a collision. Id. at ¶ 9. Andy and his motorcycle slid down the turning lane of Highway 212 and passed beneath Mr. DeProw's trailer.Id. at ¶ 10. A witness heard Andy strike his head during the collision. Id. at 15.

Andy was operating his motorcycle within the posted 45–mile–per–hour speed limit. Id. at 11. The South Dakota Highway Patrol cited Mr. DeProw for making a prohibited U-turn in violation of SDCL § 32–26–25. Id. at 12. Mr. DeProw later pled guilty to making a prohibited U-turn. Id. As a result of the accident, Andy sustained a traumatic brain injury, including: a bilateral frontal lobe cerebral contusion, subarachnoid hemorrhage, and subdural hematoma and encephalopathy. (Dockets 23 at ¶ 20, 52 at ¶ 44).

Rapid Response 1, LLC leased the semi from Rapid Response, Inc. (Docket 54–4 at p. 7).2 The lease provided Rapid Response 1, LLC with exclusive possession, control and use of the semi being driven by Mr. DeProw. Id. at 8–9. However, Rapid Response 1, LLC allowed Rapid Response, Inc. to continue to use the semi. Id. Rapid Response 1, LLC placed no limitations on Rapid Response, Inc.'s usage and control over the semi. Id. Rapid Response, Inc. also had complete authority to supervise the drivers of Rapid Response 1, LLC, which included Mr. DeProw. Id. at 4–5. The semi driven by Mr. DeProw displayed a placard containing Rapid Response 1, LLC's United States Department of Transportation (USDOT) identification number of 1643875. (Dockets 54–4 at p. 5; 55).

Further recitation of salient facts is included in the discussion section of this order.


The court considers Mr. Davis' motion for partial summary judgment on the issues of liability and causation.

A. Standard Applicable to Summary Judgment Motions

Under Federal Rule of Civil Procedure 56(a), summary judgment is appropriate where the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The court must view the facts, and inferences from those facts, in the light most favorable to the nonmoving party. See Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) ); Helton v. Southland Racing Corp., 600 F.3d 954, 957 (8th Cir.2010) (per curiam). Summary judgment will not lie if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66 (8th Cir.1994).

The burden is on the moving party to establish both the absence of any genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Once the movant has met its burden, the nonmoving party may not simply rest on the allegations in the pleadings but must set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists. See Anderson, 477 U.S. at 256, 106 S.Ct. 2505 ; Fed.R.Civ.P. 56(e) (each party must support its own assertions of fact and address the opposing party's assertions of fact as required by Rule 56(c) ).

The underlying substantive law identifies which facts are “material” for purposes of a motion for summary judgment. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.”Id. (citing 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2725, at 93–95 (3d ed.1983) ). [T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Id. at 247–48, 106 S.Ct. 2505 (emphasis in original).

Essentially, the availability of summary judgment turns on whether a jury question is presented: “The inquiry performed is the threshold inquiry of determining whether there is the need for a trial—whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Id. at 250, 106 S.Ct. 2505.

1. Applicability of South Dakota Law

‘It is, of course well-settled that in a suit based on diversity of citizenship jurisdiction the federal courts apply federal law as to matters of procedure but the substantive law of the relevant state.’ Jacobs ex rel. Jacobs v. Evangelical Lutheran Good Samaritan Soc'y, 849 F.Supp.2d 893, 896–97 (D.S.D.2012) (quoting Hiatt v. Mazda Motor Corp., 75 F.3d 1252, 1255 (8th Cir.1996) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) )). “In a choice-of-law analysis for a diversity action brought in federal district court, the choice-of-law rules are substantive for Erie purposes, and the choice-of-law rules of the forum state are applied to determine the litigating parties' rights.” Id. at 897 (citing Allianz Ins. Co. v. Sanftleben, 454 F.3d 853, 855 (8th Cir.2006) ). The court applies South Dakota choice-of-law rules.

As of 1992 and continuing through the filing of this suit, the State of South Dakota has used the most significant relationship approach to govern multi-state tort conflicts. Chambers v. Dakotah Charter, Inc., 488 N.W.2d 63, 67 (S.D.1992). Under the most significant relationship approach:

(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the

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