United States District Court, D. South Dakota, Southern Division
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY
E. SCHREIER UNITED STATES DISTRICT JUDGE
Sioux Steel Company, filed an amended complaint alleging that
defendant, KC Engineering, P.C., was negligent. Docket 17. KC
Engineering moves for summary judgment on Sioux Steel's
claim for negligence arguing that Sioux Steel's
contributory negligence was greater than slight and bars
recovery. Docket 30.
facts, viewed in the light most favorable to the non-moving
party, are as follows:
Steel manufactures and sells hopper silos for handling and
storing grain commodities. Docket 31 at 1. Sioux Steel
designed and manufactured a 30' Diameter Hopper Cone
Assembly and silo bin. Id. The Hopper Bin was a new
type of bin that was part of Sioux Steel's new product
line expansion. Id. at 2. Sioux Steel's
engineer, Chad Kramer, designed the Hopper Bin. Id.
Kramer was the only engineer at Sioux Steel who reviewed or
oversaw the design of the Hopper Bin. Id. During the
initial design of the Hopper Bin, Kramer calculated various
loads, forces, and stresses that would be applied on the
vertical and horizontal seams. Id. Also, Kramer
calculated the utilization ratio of the seams; this ratio
shows how much of the allowable capacity is utilized.
Id. Kramer's utilization ratio was problematic,
however, due to a math error and/or mistake that was made by
Kramer. Id. at 3. Kramer used the wrong formula for
calculating the ratio. Id. If properly calculated,
it would have shown that multiple vertical seams of the
Hopper Bin were over-stressed. Id. at 2.
Sioux Steel started manufacturing and selling the Hopper Bin,
Sioux Steel retained KC Engineering to perform a structural
engineering analysis and design review of two of Sioux
Steel's hopper cones. Id. Sioux Steel designed
the two cones to be used with its eighteen and thirty-foot
diameter grain bins. Id. KC Engineering's review
included inputting Sioux Steel's design through a
software program and reviewing Sioux Steel's drawings and
calculations that were provided to KC Engineering.
Id. at 4. Sioux Steel did not provide the
calculations to KC Engineering, but did provide drawings.
Id. KC reviewed the drawings, but did not review the
calculations. Id. KC Engineering did not do a full
analysis of the design, but instead conducted a “spot
check.” Id. at 5. During its spot checks, KC
Engineering reviewed the horizontal connections, but not the
vertical connections. Id. KC Engineering provided
its review in a report to Sioux Steel. Id. Sioux
Steel's review/reading of KC Engineering's report is
disputed. Docket 41 at 7. The report documented what was
checked in KC Engineering's review. Docket 31 at 5.
Sioux Steel received KC Engineering's report, Sioux Steel
sold the Hopper Bin to Agropecuaria El Avion. Id. at
1. Agropecuaria installed the Hopper Bin at one of its plants
in Tepic, Mexico. Id. The Hopper Bin structurally
failed when its seams separated and discharged the contents
of the silo. Id. This structural failure caused
fatal injuries to two Agropecuaria employees and the bin was
destroyed. Id. Under a settlement agreement, Sioux
Steel paid Agropecuaria $1 million in damages as full
settlement. Id. at 2.
Steel filed a lawsuit against KC Engineering, alleging that
KC Engineering was negligent when it failed to identify the
utilization ratio error in the Hopper Bin's initial
design. Id. at 2. Sioux Steel alleges that as a
direct and proximate cause of KC Engineering's alleged
negligence, Sioux Steel has incurred damages for the failure
of the Hopper Bin. Id. at 5.
judgment is appropriate if 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 can meet its burden by
presenting evidence that there is no dispute of material fact
or that the nonmoving party has not presented evidence to
support an element of its case on which it bears the ultimate
burden of proof. Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986). To avoid summary judgment, “[t]he
nonmoving party may not ‘rest on 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, 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 precluded if there is a genuine dispute of fact
that could affect the outcome of the case. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When
considering 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. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).
Steel claims that KC Engineering acted negligently when it
breached its professional duty of care to Sioux Steel by
failing to identify the design defect in the vertical seam of
the Hopper Bin and approving the design plans with defects.
KC Engineering moves for summary judgment on the claim
arguing that Sioux Steel's contributory negligence bars
Sioux Steel's negligence claim.
negligence occurs when the plaintiff's conduct amounts to
a breach of its legal duty to protect persons from injury,
occurs simultaneously with the defendant's negligence,
and contributes to the plaintiff's injury. Starnes v.
Stofferahn, 160 N.W.2d 421, 426 (S.D. 1968). South
Dakota uses a comparative negligence approach. See SDCL
§ 20-9-2. A plaintiff cannot recover if his negligence
is more than slight in comparison to the defendant's
negligence. Id. But a plaintiff can recover if his
negligence was slight or less than slight in comparison with
the defendant's, although his recovery would be reduced.
judgment should not be granted on the ground of contributory
negligence except in an extraordinary, unusual, or rare case
. . . .” Wilson v. Great N. Ry. Co., 157
N.W.2d 19, 22 (S.D. 1968) (citing Kennedy v.
Bennett, 261 F.2d 20 (8th Cir. 1958)). Generally,
contributory negligence “should be resolved by trial in
the ordinary manner . . . .” Theunissen v.
Brisky, 438 N.W.2d 221, 223 (S.D. 1989) (quoting
Wilson, 157 N.W.2d at 22) (reasoning that the trial
court should wait until the evidence is in and a directed
verdict motion is made since there is no “diminution in
the evidentiary burden” because the plaintiff's
negligence must be compared to the negligence of the