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Nicolay v. Stukel

Supreme Court of South Dakota

July 26, 2017

MERVIN D. NICOLAY, Plaintiff and Appellant,
DAVID D. STUKEL and K & K MANAGEMENT SERVICES, INC., Defendants and Appellees.



          MICHAEL D. BORNITZ KIMBERLY R. WASSINK ROBERT D. TRZYNKA JONATHAN A. HEBER of Cutler Law Firm, LLP Sioux Falls, South Dakota Attorneys for plaintiff and appellant.

          DEREK A. NELSEN of Fuller & Williamson, LLP Sioux Falls, South Dakota Attorneys for defendants and appellees.

          GILBERTSON, Chief Justice

         [¶1.] Mervin D. Nicolay sued David D. Stukel and K & K Management Services, Inc., after Stukel's vehicle struck the rear of Nicolay's vehicle. Nicolay appeals from a jury verdict in favor of Stukel. Nicolay argues that he was entitled to summary judgment and that there was insufficient evidence to support the jury's verdict. He also argues the circuit court improperly admitted hearsay evidence. Stukel also appeals the circuit court's decision requiring him to pay a portion of the fee for an expert witness called by Nicolay. We reverse on the expert-witness-fee issue and affirm on the remaining issues.

         Facts and Procedural History

         [¶2.] On January 31, 2011, Nicolay set out from his home in Nebraska City, Nebraska, driving north on Interstate 29 to Fargo, North Dakota. The day was cold with wind blowing from the east to the west across the Interstate. Aside from some snow drifting in the outside lane of travel, the road was clear. As Nicolay approached the North Dakota border, shortly before 1:00 p.m., he observed a snow plow cross the median and turn into the northbound lanes ahead of him. The plow traveled in the right-hand lane and shoulder at a speed of 35 to 40 miles per hour. Because the snow was dry and the wind was blowing across the Interstate, the plow created a fog of snow that obstructed the vision of anyone attempting to see down the inside lane. Nicolay did not see any vehicles ahead of or behind him (other than the plow), so he reduced his speed to between 35 and 45 miles per hour and decided to pass the plow.

         [¶3.] A short time later, Stukel also approached the plow. Stukel had not seen Nicolay enter the snow fog. Stukel followed the plow for about a mile. Because he had not seen any other vehicles during that time, he also decided to pass the plow. Stukel reduced his speed to approximately 60 miles per hour.[1] As he began to enter the snow fog next to the plow, he first noticed Nicolay's white pickup a short distance ahead, traveling at a much slower speed. Stukel applied his brakes but was unable to avoid colliding with Nicolay's vehicle. The collision occurred in North Dakota.

         [¶4.] North Dakota State Highway Patrolman Keith Huwe responded to the accident and interviewed the parties. Patrolman Huwe issued a $20 traffic citation to Stukel for passing while it was not safe to do so. Nicolay's vehicle sustained damage to the rear bumper but remained operational. Stukel's vehicle had to be towed from the scene. Nicolay and Stukel were both examined by emergency medical services, but both declined treatment.

         [¶5.] Following the accident, Nicolay complained of pain in his lower back and extremities. On May 20, an MRI of his lower back indicated several of the discs and joints in his back had degenerated, and one disc was bulging. Over the next year, Nicolay attempted various courses of treatment. Faced with increasing pain, he sought medical care from neurosurgeon Dr. Stephen Doran on March 13, 2012. On March 29, Dr. Doran performed a disc-fusion surgery on Nicolay.

         [¶6.] Nicolay filed an action against Stukel and K & K Management on February 14, 2013, alleging negligence and negligence per se. Stukel denied acting negligently and asserted several affirmative defenses, including assumption of risk and contributory negligence.[2] On August 4, 2014, Nicolay filed a motion for partial summary judgment on the issue of liability. The circuit court denied the motion on October 1. Afterward, Nicolay filed a motion asking the circuit court to apply North Dakota substantive law. The court granted the motion.

         [¶7.] Because an accident that occurred in North Dakota involved residents of South Dakota and Nebraska, the testimony of several witnesses was taken by recorded deposition. Two of those depositions give rise to issues in this appeal. In particular, the parties deposed Patrolman Huwe. During the deposition, Stukel's attorney asked Patrolman Huwe whether Nicolay had said he was "not actively passing" the plow (i.e., matching the plow's speed) at the time the accident occurred. After Patrolman Huwe said he could not remember Nicolay making that statement, Stukel's attorney showed Patrolman Huwe a newspaper article to refresh his memory. Nicolay's attorney objected, arguing the article lacked foundation.[3]

[¶8.] The parties also deposed Dr. Doran. At the outset, Nicolay informed Stukel that he intended to pay for only one hour of Dr. Doran's time (at a cost of $4, 000). Nicolay's attorney questioned Dr. Doran for about 35 minutes, asking about his credentials and the surgery Dr. Doran performed on Nicolay. On cross-examination, Stukel's attorney questioned Dr. Doran about Nicolay's history of neck and shoulder pain arising out of a work-related accident that occurred in 2008. Specifically, Stukel's attorney asked Dr. Doran about a previous surgery Nicolay underwent in January 2010 to fuse discs in his neck. Part way through cross-examination, Dr. Doran reminded the parties of the time limitation, and the parties terminated the deposition. Stukel requested a second deposition to finish cross-examination, and Nicolay objected, arguing the initial cross-examination was repetitive, irrelevant, and went beyond the scope of Nicolay's direct examination. The circuit court overruled all of Nicolay's objections but nevertheless ordered Stukel to pay the cost of continuing his cross-examination of Dr. Doran.

         [¶9.] A jury unanimously found that Stukel was not negligent. The jury did not reach the issue of contributory negligence. Nicolay appeals, and the parties present the following issues for our review:

1. Whether the circuit court erred by denying Nicolay's motion for partial summary judgment on the issue of Stukel's liability.
2. Whether the circuit court erred by denying Nicolay's motion for a new trial.
3. Whether the circuit court erred by admitting Patrolman Huwe's deposition.
4. Whether the circuit court erred by requiring Stukel to pay a portion of Dr. Doran's ...

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