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Straub v. Flevares

United States District Court, D. South Dakota, Southern Division

April 13, 2016

CODY STRAUB, Plaintiff,



Plaintiff, Cody Straub, brings a negligence claim against defendant, George John Flevares, following an automobile accident in Yankton, South Dakota. Straub seeks actual and punitive damages. Flevares moves for partial summary judgment on Straub’s punitive damages claim, arguing Straub cannot prove Flevares acted with malice. Straub resists the motion, asserting Flevares acted with implied malice. This court denies Flevares’s motion for partial summary judgment.


The facts, as viewed in the light most favorable to Straub, the nonmoving party, are as follows:

On Thursday, April 7, 2011, George Flevares was drinking at the Yankton Elks Club in Yankton, South Dakota. As he usually did on Thursday afternoons, Flevares arrived at the Elks Club around 4:00 p.m., met with friends, and drank Johnny Walker Red scotch on the rocks. Docket 23 at 2. Flevares continued to drink for over an hour and a half. He then got into his car and drove away on a road with heavy traffic. Docket 24 at 2. While heading southbound on Broadway, Flevares made a left hand turn into oncoming traffic. Flevares drove in front of Straub’s car. The cars collided. Docket 22-1 at 1-2.

Shortly after the crash, the Yankton Police Department took samples of Flevares’s blood for a blood alcohol content (BAC) analysis. Id. at 3. The results showed that Flevares’s BAC, one-and-a-half hours after the crash, was 0.133%. Id. Expert analysis revealed that Flevares’s BAC was between .141% and .156% at the time of the crash. Docket 20 at 2. Flevares does not dispute that his negligence caused the crash. Id. at 3. According to the Yankton Police Department, the collision occurred because Flevares failed to yield the right of way when turning. Docket 22-1 at 4.

During his deposition, Flevares agreed that drivers have an obligation to not drive while under the influence and that drunk driving is dangerous to others. Docket 21-4 at 2. Flevares also testified that he has never been convicted of a felony, had his driver’s license revoked, or attended any type of alcohol treatment class. Id. at 3.

On October 25, 2013, Straub filed his complaint, seeking actual and punitive damages. Docket 1. Flevares argues punitive damages are not recoverable and moves for summary judgment on the issue. Docket 19; Docket 18.


Summary judgment on all or part of a claim is appropriate 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.” Fed.R.Civ.P. 56(a). The moving party must present admissible evidence showing there is no dispute of material fact or that the nonmoving party has not presented admissible evidence to support an element of the case on which it bears the ultimate burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Fed.R.Civ.P. 56(c). Once the moving party has met its burden, “[t]he nonmoving party may not ‘rest upon mere allegations or denials, but must demonstrate on the record the existence of specific facts which create a genuine issue for trial.’ ” Mosley v. City of Northwoods, Mo., 415 F.3d 908, 910 (8th Cir. 2005) (quoting Krenik v. Cty. of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995)).

Summary judgment is not appropriate if there is a dispute about a material fact that could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When deciding a summary judgment motion, the court views the facts and the inferences drawn from such facts “in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986).

Federal jurisdiction in this action is predicated on diversity of citizenship. Therefore, the substantive law of South Dakota governs this case. Hammonds v. Hartford Fire Ins. Co., 501 F.3d 991, 996 n.6 (8th Cir. 2007) (citing Erie R.R. Co. v. Thompkins, 304 U.S. 64, 78 (1938)) (“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.”).


In South Dakota, punitive damages are generally not recoverable unless expressly authorized by statute. SDCL 21-1-4. ...

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