United States District Court, D. South Dakota, Western Division
MICHAEL KATON, individually and as Guardian Ad Litem for C.K., K.K. and T.K.; and SARA KATON, Plaintiffs,
UNITED STATES OF AMERICA, Defendant.
JEFFREY L. VIKEN, CHIEF JUDGE
filed a complaint against the United States pursuant to the
Federal Tort Claim Act (“FTCA”), 28 U.S.C. §
2671 et seq. (Docket 5). The United States filed its answer.
(Docket 7). Plaintiff filed a motion for partial summary
judgment on liability together with a legal memorandum,
plaintiffs' statement of undisputed material facts and an
affidavit. (Dockets 37-40). Plaintiffs also filed a motion
for a trial date together with a legal memorandum and
affidavit. (Dockets 41-43). The government filed a legal
memorandum in resistance to plaintiffs' motion for
partial summary judgment together with its own statement of
undisputed material facts, the government's response to
plaintiffs' statement of undisputed facts and a
declaration. (Dockets 45-48). The government also filed a
legal memorandum and declaration in resistance to
plaintiffs' motion for a trial date. (Docket 49-50). For
the reasons stated below, both of plaintiffs' motions are
denied without prejudice.
FTCA action centers on a two-vehicle collision on September
20, 2013, which occurred when a United States Postal Service
(“USPS”) vehicle driven by Charles Pickett
collided with an automobile driven by Sara Katon. (Docket 5
¶ 3). Allegedly injured in the collision were Mrs. Katon
and her children, C.K., K.K. and T.K. Id. Among
other claims, plaintiffs allege Mr. Pickett was negligent by
failing to keep a proper lookout and failing to act prudently
under the circumstances. Id. at ¶ 9.
government's answer admits Mr. Pickett was acting in the
scope and course of his employment with the USPS at the time
of the collision. (Docket 7 ¶ 3). The government admits
plaintiffs' administrative claims under the FTCA were
properly submitted and denied. Id. ¶ 8.
Defendant's answer asserts among other affirmative
defenses, contributory negligence. Id. ¶ 12.
TORT CLAIMS ACT
1346(b)(1) of Title 28 confers exclusive jurisdiction to the
district courts over “civil actions on claims against
the United States, for money damages . . . for personal
injury or death caused by the negligent or wrongful act or
omission of any employee of the Government while acting
within the scope of his office or employment, under
circumstances where the United States, if a private person,
would be liable to the claimant in accordance with the law of
the place where the act or omission occurred.” 28
U.S.C. § 1346(b)(1). When resolving claims under the
FTCA, federal courts look to the law of the state where the
tort occurred, here, South Dakota. Washington v. Drug
Enforcement Administration, 183 F.3d 868, 873 (8th Cir.
1999) (Under the FTCA, “[t]he United States is liable
to the same extent that a private person under like
circumstances would be liable to the claimant in accordance
with the law of the place where the act or omission occurred.
The ‘law of the place' refers to the substantive
law of the state where the wrongful conduct took
place.”) (additional citations omitted); Celestine
v. United States, 841 F.2d 851, 853 (8th Cir. 1988) (per
curiam) (“Government liability under the FTCA is
determined by the law of the place where the tort occurred .
. . .”) (additional citations omitted).
is the breach of a duty owed to another, the proximate cause
of which results in an injury.” Janis v. Nash Finch
Co., 780 N.W.2d 497, 500 (S.D. 2010) (internal quotation
marks omitted) (quoting Stone v. Von Eye Farms, 741
N.W.2d 767, 770 (S.D. 2007)). “The existence of a duty
owed by the defendant to the plaintiff, which requires the
defendant to conform to a certain standard of conduct in
order to protect the plaintiff against unreasonable risks, is
elemental to a negligence action.” Id.
(internal quotation marks omitted) (quoting Poelstra v.
Basin Elec. Power Coop., 545 N.W.2d 823, 825 (S.D.
South Dakota law “[e]very person is responsible for
injury to the person, property, or rights of another caused
by his . . . want of ordinary care or skill, subject . . . to
the defense of contributory negligence.” SDCL §
20-9-1. Contributory negligence is an affirmative defense
which must be pled. SDCL § 15-6-8(c). A claim of
contributory negligence by a party asserting a claim
“does not bar a recovery when the contributory
negligence of the plaintiff was slight in comparison with the
negligence of the defendant, but in such case, the damages
shall be reduced in proportion to the amount of
plaintiff's contributory negligence.” SDCL §
20-9-2. “The comparison is made with the negligence of
the defendant, rather than with the ordinarily prudent
person. Lovell v. Oahe Elec. Co-op., 382 N.W.2d 396,
399 (S.D. 1986) (citing Crabb v. Wade, 167 N.W.2d
546, 549 (S.D. 1969)). “[Ordinarily] questions of
negligence and contributory negligence are for the [fact
finder] in all but the rarest cases.” Robbins v.
Buntrock, 550 N.W.2d 422, 427 (S.D. 1996) (citing
Nelson v. Nelson Cattle Co., 513 N.W.2d 900, 903
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 has met 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); Fed.R.Civ.P. 56(e) (each party must properly
support its own assertions of fact and properly address the
opposing party's assertions of fact, as required by Rule
56(c)). Only disputes over facts that might affect the
outcome of the case under the governing substantive law will
properly preclude summary judgment. Anderson, 477 U.S. at
248. Accordingly, “the 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. (emphasis in original).
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 fails 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 323.
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
[the factfinder] or whether ...