Johnson v. Johnson, 3:17-CV-03001-RAL

• Decision Date: 16 January 2018
• Docket Number: 3:17-CV-03001-RAL
• Parties: MATTHEW JOHNSON, AS GUARDIAN AD LITEM FOR V.J., MINOR, Plaintiff, v. DWIGHT JOHNSON, and CAREY JOHNSON, Defendants.
• Court: U.S. District Court — District of South Dakota

MATTHEW JOHNSON, AS GUARDIAN AD LITEM FOR V.J., MINOR, Plaintiff, v. DWIGHT JOHNSON, and CAREY JOHNSON, Defendants.

3:17-CV-03001-RAL

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA CENTRAL DIVISION

January 16, 2018

OPINION AND ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Plaintiff Matthew Johnson, as Guardian Ad Litem for V.J., a minor ("Plaintiff"), brought this diversity action against Dwight and Carey Johnson ("Defendants") alleging negligent supervision of V.J. allegedly causing V.J. to sustain injuries in an all-terrain vehicle ("ATV") accident on Defendants' property. Doc. 1. With discovery substantially completed, Defendants moved for summary judgment. Doc. 11. Plaintiff opposed that motion. Doc. 17. For the reasons stated below, this Court denies Defendants' motion for summary judgment.

I. Facts

V.J. was born in April of 2002 and is the son of Matthew and Charlene Johnson. Doc. 15 at ¶¶ 1-2. At the time of his injury, V.J. was 12 years old. Doc. 16 at ¶ 1. Matthew and Charlene also have a younger son, L.J. Doc. 12 at ¶ 2; Doc. 16 at ¶ 16. The family resides in a suburb outside of the Twin Cities in Minnesota. Doc. 15 at ¶ 3. Defendant Carey Johnson is Charlene Johnson's sister, and defendant Dwight Johnson is Carey's husband. Doc. 12 at ¶ 1; Doc. 16 at ¶ 1. Defendants live on a farm near Dallas, South Dakota. Doc. 12 at ¶ 1; Doc. 16 at ¶ 1. Defendants have a daughter, S.J. Doc. 12 at ¶ 5; Doc. 16 at ¶ 5. Matthew, Charlene, V.J. and L.J. would visit Defendants' farm once or twice per year. Doc. 12 at ¶ 1; Doc. 16 at ¶ 1. During these visits, V.J. and L.J. would ride ATVs. Doc. 12 at ¶ 2; Doc. 16 at ¶ 2.

V.J. was diagnosed with attention deficit hyperactivity disorder around the age of 6. Doc. 15 at ¶ 9. When V.J. was younger his family, for a time, resided in Hartford, South Dakota, and V.J. had a small ATV which he occasionally rode in the backyard.¹ Doc. 12 at ¶ 3; Doc. 16 ¶ at 3; Doc. 15 at ¶ 3. Matthew Johnson estimated that V.J. had ridden ATVs 15 to 20 previous times. Doc. 18-1 at 10. During a previous visit to Defendants' farm, V.J. had an accident on a small ATV which did not result in any serious injury to V.J. or his passenger.² Doc. 12 at ¶ 4; Doc. 16 at ¶ 4; Doc. 15 at ¶¶ 78-79

V.J. and his family arrived at Defendants' farm on August 4, 2014. Doc. 12 at ¶ 5; Doc. 16 at ¶ 5. V.J. and L.J. were to stay with Defendants while Matthew and Charlene attended the Sturgis Motorcycle Rally. Doc. 12 at ¶ 5; Doc. 16 at ¶ 5. V.J. rode the ATV around Defendants' farm when they arrived, and both L.J. and S.J. rode along as passengers at various times. Doc. 12 at ¶ 5; Doc. 16 at ¶ 5. The ATV V.J. rode was an adult ATV kept in the shed on Defendants' property, and the keys were regularly left in the ignition. Doc. 18-4 at 6-7. There is a warning stamp on the ATV that directs the operator not to ride with passengers. Doc. 18-4 at 8. Defendant Dwight Johnson testified about his discomfort with children riding the ATVs on the farm, but did not prevent children, including V.J., from doing so. Doc. 18-4 at 6. Later on the day of August 4, 2014, Dwight asked Matthew and Charlene how they felt about V.J. using the ATV, and Matthew indicated his approval as long as V.J. rode by himself with permission and under supervision. Doc. 12 at ¶ 6; Doc. 16 at ¶ 6. Matthew and Charlene were aware that V.J. had been driving the ATV with passengers and limited supervision at the time of this conversation. Doc. 12 at ¶ 7; Doc. 16 at ¶ 7.

On the morning of August 5, 2014, Matthew and Charlene departed Defendants' farm, leaving V.J. and L.J. in Defendants' care. Doc. 12 at ¶ 8; Doc. 16 at ¶ 8. There is a dispute of fact over whether V.J. asked defendant Carey for permission for both himself and S.J. to ride the ATV before lunch, to which Carey consented, or whether V.J. simply asked Carey for permission to go outside. Doc. 12 at ¶ 9; Doc. 16 at ¶ 9. V.J. then drove the ATV and S.J. rode as a passenger. Doc. 12 at ¶ 10; Doc. 16 at ¶ 10. V.J. had been driving the ATV along a gravel road on the farm for 10 to 20 minutes when Defendants' dog ran in front of the ATV. Doc. 12 at ¶ 11; Doc. 16 at ¶ 11. In an attempt to avoid hitting the dog, V.J. swerved the ATV toward a barbed wire fence. Doc. 12 at ¶ 11; Doc. 16 at ¶ 11. V.J. was unable to stop the ATV and it crashed through the barbed wire fence, throwing V.J. and S.J. from the ATV and entangling them in the barbed wire. Doc. 12 at ¶ 11; Doc. 16 at ¶ 11. Both V.J. and S.J. sustained injuries and V.J. has significant scarring. Doc. 12 at ¶ 12; Doc. 16 at ¶ 12.

II. Summary Judgment Standard

Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." On summary judgment, the evidence is "viewed in the light most favorable to the nonmoving party." True v. Nebraska, 612 F.3d 676, 679 (8th Cir. 2010) (quoting Cordry v. Vanderbilt Mortg. & Fin., Inc., 445 F.3d 1106, 1109 (8th Cir. 2006)). There is a genuine issue of material fact if a "reasonable jury [could] return a verdict for either party" on a particular issue. Mayer v. Countrywide Home Loans, 647 F.3d 789, 791 (8th Cir. 2011) . A party opposing a properly made and supported motion for summary judgment must cite to particular materials in the record supporting the assertion that a fact is genuinely disputed. Fed. R. Civ. P. 56(c)(1); Gacek v. Owens & Minor Distrib., Inc., 666 F.3d 1142, 1145 (8th Cir. 2012). "Mere allegations, unsupported by specific facts or evidence beyond the nonmoving party's own conclusions, are insufficient to withstand a motion for summary judgment." Thomas v. Corwin, 483 F.3d 516, 527 (8th Cir. 2007); see also Reasonover v. St. Louis Cty, Mo., 447 F.3d 569, 578 (8th Cir. 2006) ("Evidence, not contentions, avoids summary judgment.") (internal quotations and citation omitted). Summary judgment is not "a disfavored procedural shortcut, but rather . . . an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1).

III. Discussion

The laws of South Dakota, where the accident occurred and where this case is venued, govern this diversity action for negligence. Heatherly v. Alexander, 421 F.3d 638, 641 (8th Cir. 2005). Defendants assert that Plaintiff's claim of negligent supervision is barred as a matter of law by the affirmative defenses of contributory negligence and assumption of the risk. Doc. 14 at 4. In addition, Defendants argue that V.J. must be held to an adult standard of care and that his conduct constitutes contributory negligence and assumption of the risk regardless of the standard applied. Doc. 14 at 6-9. Because the questions of whether Plaintiff was contributorily negligent or assumed the risk should be decided by a jury under South Dakota law, summary judgment is inappropriate and thus denied.

A. Standard of Care

The standard of care to be applied to V.J. is a matter of law for the Court to determine. Determination of the applicable standard of care must precede any evaluation of V.J.'s alleged negligence. Typically a minor is not held to the objective standard of the reasonable prudent person, but instead "a special (subjective) standard of care is used which takes into account his age, intelligence, experience and capacity." Alley v. Siepman, 214 N.W.2d 7, 10 (S.D. 1974) (quotation omitted). However, a minor can be "held to the same standard of conduct as that of an adult [when] he engages in an activity normally only undertaken by adults." Id. (quotation omitted); see also Wangsness v. Builders Cashway, Inc., 779 N.W.2d 136, 140 n.1 (S.D. 2010) (noting the trial court instructed the jury on the standard of care applicable to minors as articulated in Alley where the plaintiff was a fifteen year old).

There is a dearth of cases from the Supreme Court of South of Dakota establishing what activities constitute those "normally only undertaken by adults," so the parties have relied primarily on cases from other jurisdictions. The Supreme Court of South Dakota commonly looks to the Restatement (Second) of Torts on questions involving duty in negligence cases. See Millea v. Erickson, 849 N.W.2d 272, 277-78 (S.D. 2014) (citing to the Restatement (Second) of Torts when discussing the duty owed when a special relationship exists between parties and gratuitous duty); Hendrix v. Schulte, 736 N.W.2d 845, 848 (S.D. 2007) (citing to the Restatement (Second) of Torts in discussing the duty between landlord and tenant). The Restatement (Second) of Torts offers guidance as to when a minor is held to an adult standard:

An exception to the rule stated in this Section may arise where the child engages in an activity which is normally undertaken only by adults, and for which adult qualifications are required. As in the case of one entering upon a professional activity which requires special skill (see § 299A), he may be held to the standard of adult skill, knowledge, and competence, and no allowance may be made for his immaturity. Thus, for example, if a boy of fourteen were to attempt to fly an airplane, his age and inexperience would not excuse him from liability for flying it in a negligent manner. The same may be true where the child drives an automobile. In this connection licensing statutes, and the examinations given to drivers, may be important in determining the qualifications required; but even if the child succeeds in obtaining a license he may thereafter be required to meet the standard established primarily for adults.

Restatement (Second) of Torts § 283A cmt. c (1965).

Defendants assert that the operation of a motor vehicle is typically deemed an adult activity, and cite to a number of cases in support of that assertion. Doc. 14 at 7-8. However, most of these cases...