MERVIN D. NICOLAY, Plaintiff and Appellant,
DAVID D. STUKEL and K & K MANAGEMENT SERVICES, INC., Defendants and Appellees.
CONSIDERED ON BRIEFS MARCH 22, 2017
FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA THE HONORABLE DOUGLAS E.
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.
A. NELSEN of Fuller & Williamson, LLP Sioux Falls, South
Dakota Attorneys for defendants and appellees.
GILBERTSON, Chief Justice
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.
and Procedural History
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
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. 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
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
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.
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. 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.
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.
[¶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.
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
2. Whether the circuit court erred by denying Nicolay's
motion for a new trial.
3. Whether the circuit court erred by admitting Patrolman
4. Whether the circuit court erred by requiring Stukel to pay
a portion of Dr. Doran's ...