United States District Court, D. South Dakota, Western Division
THEODORE J. VORE, Plaintiff,
CLIFFORD L. OSBORN, Defendant.
JEFFREY L. VIKEN, Chief Judge.
Plaintiff Theodore Vore filed a complaint against defendant Clifford Osborn seeking recovery for Vore's injuries suffered in a collision between their two motorcycles on August 5, 2012. (Docket 1). Osborn filed an amended answer and counterclaim seeking recovery for his own injuries. (Docket 7). Vore filed an answer to the counterclaim. (Docket 8). Vore now files a motion for summary judgment, supported by a statement of undisputed material facts, asserting Osborn violated one or more South Dakota statutes which constitutes negligence per se and asserting Osborn's contributory negligence bars recovery on his counterclaim. (Dockets 33 & 35). Osborn filed a response and statement of material facts in opposition to the motion for summary judgment. (Docket 42). Vore filed a motion to strike Osborn's statement of material facts. (Docket 46). For the reasons stated below, Vore's motion to strike is overruled and motion for summary judgment is denied.
STANDARD OF REVIEW
Under Fed.R.Civ.P. 56(a), a movant is entitled to summary judgment if the movant can "show 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). Once the moving party meets its burden, the nonmoving party may not rest on the allegations or denials in the pleadings, but rather must produce affirmative evidence setting forth specific facts showing that a genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Only disputes over facts that might affect the outcome of the case under the governing substantive law will properly preclude summary judgment. Id. at p. 248. "[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 (emphasis in original).
If a dispute about a material fact is genuine, that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party, then summary judgment is not appropriate. Id . However, the moving party is entitled to judgment as a matter of law if the nonmoving party failed to "make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In such a case, "there can be no genuine issue as to any material fact, ' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at p. 323.
In determining whether summary judgment should issue, the facts and inferences from those facts must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). The key inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at pp. 251-52.
MOTION TO STRIKE
Vore filed an objection to Osborn's statement of material facts. (Docket 46). The court views the objection as a motion to strike. Vore argues Osborn's statement does not contain facts, but rather constitutes argument, and if the statement does constitute declarations of disputed facts, those facts are not material to Vore's motion for summary judgment. Id.
Osborn's submission admits a number of undisputed statements of material fact, properly objects to others and identifies a number of disputed facts by citation to the record. (Docket 42). Osborn "contend[s] there are genuine issues of material fact" and makes specific references to the testimony and exhibits supporting his position. Id.
In resisting a motion for summary judgment, an opposing party must "assert that a fact... is genuinely disputed... by citing to particular parts of materials in the record...." Fed.R.Civ.P. 56(c)(1)(A). The court's local rules require that "[a] party opposing a motion for summary judgment will identify any material facts as to which it is contended that there exists a genuine material issue to be tried." D.S.D. Civ. LR 56.1(B). The court finds Osborn's submission proper under Rule 56(c)(1) and Local Rule 56.1(B). Vore's motion to strike is overruled.
The following recitation consists of the material facts developed from Vore's complaint (Docket 1), Osborn's amended answer and counterclaim (Docket 7), Vore's answer to the counterclaim (Docket 8), Vore's statement of undisputed material facts (Docket 35) and Osborn's response to Vore's statement of undisputed material facts (Docket 42). Where a statement of fact is admitted by the opposing party, the court will only reference the initiating document. These facts are "viewed in the light most favorable to [Osborn who is] opposing the motion." Matsushita Elec. Indus. Co., 475 U.S. at 587. The facts material to Vore's motion for summary judgment are as follows.
During the afternoon of August 5, 2012, Vore was riding his 2006 Harley-Davidson motorcycle east on U.S. Highway 14A between Deadwood and Sturgis, South Dakota. (Docket 1 ¶ 4). Osborn was riding his 2008 Honda Goldwing motorcycle traveling east following Vore's motorcycle. Id . ¶ 5; see also Docket 35 ¶ 1. Highway 14A consists of four lanes of travel with two eastbound lanes and two westbound lanes separated by a double yellow line. ...