United States District Court, D. South Dakota, Western Division
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT
Lawrence L. Piersol United States District Judge.
Before the Court is Defendant Trek Bicycle Corporation's (Defendant or Trek) Motion for Partial Summary Judgment, Doc. 65, on Plaintiffs David and Barbara Donat's (the Donats or Plaintiffs) claims of strict products liability (defective design, failure to warn, and inadequate warning), negligence (defective design, failure to warn, and inadequate warning), and breach of express and implied warranties. For the following reasons, Trek's motion is granted in part and denied in part.
Plaintiffs are residents of Spearfish, South Dakota. Trek is incorporated under the laws of Wisconsin and has its principal place of business in Waterloo, Wisconsin. Some time prior to August 28, 2010,  Mr. Donat purchased a 2007 model Trek Madone bicycle, which is a carbon fiber model bicycle, for $4, 865.40 from Rushmore Mountain Sports in Spearfish. In his deposition, Mr. Donat states that he was not comparing other bikes from other manufacturers. He desired only to purchase the highest quality Trek bicycle he could for $5, 000. Doc. 68-2 at 2. One of the reasons Mr. Donat intended to purchase the Trek model was that he understood that the "better bikes [, such as the 2007 Madone, ] tend to run [the] higher end component set" that Mr. Donat wished to use. Id. To Mr. Donat's knowledge, the Trek model used a "Dura Ace" component set, which he believed was high quality and would allow the bike to shift gears easily. While Mr. Donat had experience with that type of component set and bicycles, generally, he "didn't know anything about the carbon bikes." Id. Mr. Donat further stated that he did not rely on any publications or information from Trek in deciding to purchase the 2007 Madone. He did, however, "ask what the model numbers  mean or are" while he was at Rushmore Mountain Sports. Id. Mr. Donat claims that he "was probably in the bike shop a couple of times during [the] course of looking into and deciding which bike to purchase." Id.
On August 28, 2010, Mr. Donat was operating the 2007 Madone on a highway near Red Lodge, Montana. While doing so, both prongs of the bicycle's front fork broke in half. As a result, Mr. Donat was propelled off the bicycle onto the highway and was rendered unconscious. Mr. Donat regained consciousness as he was being lifted into an ambulance. He was then taken to the Red Lodge Hospital and later transferred to Billings Clinic Hospital in Billings, Montana. Mr. Donat remained in Billings for two days. As a result of the accident, Mr. Donat suffered injuries to his neck and back, including fractured and compressed vertebrae. He also suffered abrasions on his face, neck, chest, hands, and knees. Due to his injuries, Mr. Donat has incurred lost wages and medical expenses. The medical expenses are expected to grow due to Mr. Donat's need to address scarring on the injured parts of his body. Mr. Donat's Complaint also alleges that he has suffered, and will continue to suffer, great physical pain, mental and emotional anguish, and impairment of the capacity to enjoy life.
The first responder on the scene of the accident, Larry Reinlasoder (Reinlasoder), was an off-duty Chief of Police. In Reinlasoder's deposition, he states that the accident occurred during a clear day, with no inclement weather. Doc. 71-2 at 4. Reinlasoder stated that he was driving South on U.S. Highway 212 when he came across Mr. Donat, who was "tangled up in a bicycle on the west side of the road on the shoulder." Id. at 3-4. Reinlasoder did not witness the accident, but claimed that there were no obstructions on or imperfections in the road that would have caused Mr. Donat to crash. According to Reinlasoder, "That's a well-maintained stretch of highway there." Id. at 8. Reinlasoder is not an accident reconstructionist, however, and it was not his official role to investigate the scene of the accident. According to Reinlasoder, in his role as a law enforcement officer, he has investigated one to two dozen bike accidents in his career.
In a letter dated December 2, 2010, Mr. Donat notified Trek of the accident. Between that date and April 7, 2011, Mr. Donat was in contact with Jeff Grotjahn (Grotjahn), a Trek official, relative to the accident. On February 15, 2011, Grotjahn emailed Mr. Donat disclaiming Trek's liability. Plaintiffs' action followed on July 16, 2013. The Complaint alleges claims of strict liability, negligence, breach of express and implied warranties, and loss of consortium. Trek has moved for summary judgment on Plaintiffs' strict liability defective design and negligent defective design claims as well as the strict liability failure to warn, strict liability inadequate warning, negligent failure to warn, and negligent inadequate warning claims due to Plaintiffs' failure to proffer expert witness testimony. Furthermore, Defendant has moved for summary judgment on Plaintiffs' breach of express and implied warranty claims.
STANDARD OF REVIEW
Summary judgment is proper "if 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." Fed.R.Civ.P. 56(a). "A party asserting that a fact cannot be . . . disputed must support the assertion" either by "citing to particular parts of materials in the record, " or by "showing that the materials cited do not establish the . . . presence of a genuine dispute[.]" Fed.R.Civ.P. 56(c)(l)(A)-(B). "The movant can also establish the absence of a disputed material fact by showing 'that an adverse party cannot produce admissible evidence to support the fact.'" Jensen v. Hy-Vee Corp., No. CIV. 09-4057-KES, 2011 WL 1832997, at *1 (D.S.D. May 13, 2011) (quoting Fed.R.Civ.P 56(c)(1)(B)). "The burden is initially placed on the moving party to establish the absence of a genuine issue of material fact and that the party is entitled to judgment as a matter of law." Id. (citing Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986)). Once the party seeking summary judgment has met this initial burden, the burden then shifts to the non-moving party who must demonstrate "that a fact ... is genuinely disputed" either "by citing to particular parts of materials in the record, " or by "showing that the materials cited do not establish the absence ... of a genuine dispute." Fed.R.Civ.P 56(c)(l)(A)-(B). "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.'" Jensen, 2011 WL 1832997, at *2 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
"In determining whether a genuine issue for trial exists, the court applies the standard and burden associated with the applicable substantive law." Id. (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 252 (1986)). Because the present case is before the Court on the basis of diversity jurisdiction, South Dakota substantive law applies. Id. (citing Hammonds v. Hartford Fire Ins. Co., 501 F.3d 991, 996 n. 6 (8th Cir. 2007)).
A manufacturer can be held liable for an alleged defective design of its product under the alternate theories of negligence or strict liability. See Burley v. Kytec Innovative Equipment, Inc., 737 N.W.2d 397, 407-08 (S.D. 2007). To prove a claim in negligence, "a plaintiff must show that the defendant failed to use the amount of care in designing or manufacturing the product that a reasonably careful designer or manufacturer would use in similar circumstances to avoid exposing others to a foreseeable risk of harm." Id. at 407 (citing Restatement (Second) of Torts § 395). As to the alternate theory of strict liability, it is established "when a manufacturer 'sells any product in a defective condition unreasonably dangerous to the user or consumer . . ..'" Id. at 408 (quoting Peterson v. Safway Steel Scaffolds Co., 400 N.W.2d 909, 912 (S.D. 1987)). What distinguishes a theory of strict liability from negligence '"is [that] the unreasonableness of the condition of the product, not of the conduct of the defendant,  creates liability.'"Id. (quoting Peterson, 400 N.W.2d at 912). In addition to the above, both theories also require a showing of causation. Notwithstanding the distinctiveness of the two theories, Defendant argues that South Dakota requires expert witness testimony in order to present either theory to a jury. In resisting the argument, Plaintiffs argue that South Dakota precedent only requires expert testimony as to the element of proximate cause and, even then, it is only required when it is shown that the consumer altered or misused the product.
Since this Court is sitting in diversity, South Dakota substantive law applies and, therefore, Burley v. Kytec Innovative Sports Equipment, Inc., 737 N.W.2d 397 (S.D. 2007), provides guidance on the issue of when and to what extent expert testimony is required. The Court agrees with Plaintiffs insofar as the Burley court holding pertains to proximate cause in either negligence or strict liability actions. In that context Burley indicates that circumstantial evidence may be used in the absence of expert testimony. See Burley, 737 N.W.2d at 411 ("Had the product not been altered before the accident, Burley may have had sufficient evidence without expert testimony because absent a misuse or alteration it may be reasonable to infer the [product] was the legal or proximate cause of her injuries.") (emphasis added). The South Dakota Supreme Court did not relieve plaintiffs completely from the necessity of offering expert witness testimony on issues of proximate cause. The court stated that:
unless it is patently obvious that the accident would not have happened in the absence of a defect, a plaintiff cannot rely merely on the fact that an accident occurred. It is not within the common expertise of a jury to deduce merely from an accident and injury that a product was defectively designed.
Burley, 737 N.W.2d at 407 (internal citations omitted).
Negligent Defective Design
Specific to a negligent defective design claim, however, the South Dakota Supreme Court held, '"Whether a manufacturer knew or should have known of a particular risk involves technical issues which do not easily admit of evidentiary proof and which lie beyond the comprehension of most jurors.'" Id. at 407 (quoting Peterson, 400 N.W.2d at 913). Thus, the South Dakota Supreme Court bifurcated the relative need for expert testimony into two main tiers of a negligence claim: what a reasonably prudent person knew or should have known and proximate cause. The former requires expert testimony while the latter may not.
The United States District Court for the District of South Dakota, interpreting Burley in Jensen v. Hy-Vee Corp., No. CIV. 09-4057-KES, 2011 WL 1832997, at *3 (D.S.D. May 13, 2011), similarly bifurcated the expert witness issue into the two components of a negligent defective design claim. On the issue of knowledge, the court under the facts in Jensen "agree[d] with the reasoning in Burley and [found] that [the plaintiffs] defective design claim require[d] expert testimony demonstrating that the door contained a design defect." Jensen, 2011 WL 1832997, at *3. Likewise, this Court finds that South Dakota law in most instances requires expert testimony in order to prove a negligence claim that a manufacturer knew or should have known that a product line contained a design defect and failed to act as a reasonably prudent person. On this issue, however, Plaintiff has offered no expert testimony. The Court is not applying res ipsa loquitur. Under South Dakota law res ipsa loquitur applies only to the negligence issue, not causation. Malloy v. Commonwealth Higland Theatres, Inc., 375 N.W.2d 631, 636 (S.D. 1985).
Plaintiffs' manufacturing defect expert explicitly disclaimed that he was opining on the issue of defective design. As the Burley court held, without such testimony a jury likewise under the facts in this case would be incapable of resolving the technical issues that are inherent to a negligent defective design claim. While a jury may be permitted to determine proximate cause in the absence of expert testimony, it cannot resolve the knowledge issue without such testimony. See Dancy v. Hyster Co., 127 F.3d 649, 654 (8th Cir. 1997) ("[A]bsent expert testimony, there is no basis for the jury to evaluate the actions of an ordinarily prudent person in the same situation as [the defendant]."). Thus, Plaintiffs' negligent defective design claim cannot proceed and Defendant's Motion for Summary Judgment on Plaintiffs' negligent defective design claim is granted.
Strict Liability Defective Design
A claim of defective design based in strict liability is similarly bifurcated. The Burley court held that a plaintiff must establish both "that the [product] 'was in a dangerous and defective condition when it left the manufacturer, '" Burley, 737 N.W.2d at 408 (quoting Engberg v. Ford Motor Co., 205 N.W.2d 104, 109 (S.D. 1973)), and that the proximate cause of the plaintiffs injury was the design ...