The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER DENYING PLAINTIFF RICHARD KAY'S MOTION FOR SUMMARY JUDGMENT
Plaintiff and counter-defendant Richard Kay (Kay) moves for summary judgment with regard to defendants' affirmative defense of contributory negligence (Docket 89) and negligence counterclaim (Docket 85). Defendants, Lamar Advertising of South Dakota and Cody Burton, oppose these motions. Kay joins his motion for summary judgment on defendants' affirmative defenses to his prior motion for summary judgment with regard to defendants' counterclaim. The court will simultaneously address both of these motions for summary judgment because Kay's argument is the same for both motions, and the court's reasoning applies to each motion. The motions for summary judgment are denied.
Viewing the evidence in the light most favorable to defendants as the nonmoving parties, the relevant evidence is as follows: On July 19, 2006, plaintiffs, Richard and Deana Kay, were involved in a motorcycle accident at an intersection near Sturgis, South Dakota. Plaintiffs were riding a motorcycle that was driven by Richard Kay. The motorcycle collided with a boom truck owned by defendant, Lamar Advertising, and driven by defendant Cody Burton, an employee of Lamar Advertising. Defendants' truck pulled out from a stop sign in front of plaintiffs' motorcycle.
Plaintiffs brought suit against defendants claiming defendants' truck was negligently operated in such a manner that caused plaintiffs' injuries. Defendants deny any negligence on their behalf. Defendants also assert several affirmative defenses and a counterclaim against plaintiff Richard Kay on the basis that Kay operated the motorcycle in a negligent manner. Specifically, defendants allege Kay was speeding prior to the accident and failed to apply the brakes in a proper manner.
A. Standard for Granting Summary Judgment
Summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The burden is initially placed on the moving party to establish both the absence of a genuine issue of material fact and that such party is entitled to judgment as a matter of law. Id.; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed. 2d 265 ("[A] party seeking summary judgment always bears the initial responsibility of . . . demonstrat[ing] the absence of a genuine issue of material fact." (internal quotations omitted)).
Once the moving party has met its initial burden, the nonmoving party "may not rely merely on allegations or denials in its own pleading[.]" Fed. R. Civ. P. 56(e)(2). Rather, the nonmoving party must, "by affidavits or as otherwise provided in this rule[,] set out specific facts showing a genuine issue for trial." Id. For purposes of summary judgment, the facts, and inferences drawn from those facts, are "viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed. 2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed. 2d 176 (1962)).
In determining whether a genuine issue for trial exists, the court applies the standard and burden associated with the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986) ("The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict[.]"). South Dakota substantive law applies to the affirmative defense of contributory negligence*fn1 and the negligence counterclaim*fn2 because this case is before the court on the basis of diversity. Hammonds v. Hartford Fire Ins. Co., 501 F.3d 991, 996 n.6 (8th Cir. 2007) ("We apply South Dakota substantive law because this diversity action was brought in the District of South Dakota, and the district court sitting in diversity applies the substantive law of the state in which it is located." (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)).
B. Whether Summary Judgment is Appropriate
Kay argues that summary judgment is appropriate because there is no evidence to support the affirmative defense or counterclaim of negligence.
Defendants argue that there is a material issue with regard to the motorcycle's speed and whether Kay was otherwise negligent in operating the motorcycle.
The court finds that there is a material question of fact with regard to whether the motorcycle was exceeding the speed limit during the moments leading up to the accident.*fn3 This question of fact creates a material issue that must be decided by the jury. See Carpenter v. City of Belle Fourche, 609 N.W.2d 751, 758 (S.D. 2000). As explained ...