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Katon v. United States

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

August 27, 2018

MICHAEL KATON, individually and as Guardian Ad Litem for C.K., K.K. and T.K.; and SARA KATON, Plaintiffs,




         Plaintiffs 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.


         This 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.

         The 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.


         Section 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).

         “Negligence 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. 1996)).

         Under 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 (S.D. 1994)).


         Under 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).

         If a 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.

         In 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 ...

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