Renville v. United States of America

Filing 35

OPINION AND ORDER denying 21 MOTION for Summary Judgment filed by United States of America. Signed by U.S. District Judge Charles B. Kornmann on 4/24/17. (SKK)

FILED

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APR 24 2017
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION
PAMELA J. RENVILLE,

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1: 15-CV-O 1024-CBK

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Plaintiff,
vs.

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ORDER AND OPINION

UNITED STA TES OF AMERICA,
Defendant.
Plaintiff Pamela Renville filed a complaint with this Court on June 1, 2015,
claiming negligence against the United States of America pursuant to the Federal Tort
Claims Act. This negligence action arises from a slip and fall accident that occurred at
the Woodrow Wilson Keeble Memorial Health Care Center ("WWKM") in Sisseton,
South Dakota. The defendant has moved for summary judgment. The Court is fully
advised on the matter.

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FACTUAL BACKGROUND
Renville was born on November 6, 1955, in Sisseton, South Dakota. She is a
member of the Sisseton Wahpeton Oyate Tribe and has lived in Sisseton, South Dakota,
her entire life.
On January 11, 2013, Renville had a 3:00 p.m. appointment at WWKM in
Sisseton, South Dakota. As she was driving to her appointment, she noticed the roads
were still wet from rain that occurred the prior night and decided to drive more
cautiously. Renville arrived at WWKM at approximately 3:15 p.m. and noticed the
parking lot and sidewalk were wet. The temperature was approximately twenty-nine
degrees Fahrenheit and the wind speed was eighteen miles per hour. She parked her

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vehicle in the north parking lot and proceeded to walk south on the sidewalk toward the
entrance. At the entrance of WWKM, an awning extends east and covers the sidewalk
and part of the road of the circular driveway. Renville was walking under the north side
of the awning when she allegedly slipped on a patch of ice and fell approximately fifteen
to twenty feet from the door. Pl.' s Dep. 51: 1-6. She testified she did not see the ice
when she fell. Id. at 53:25-54:1. When asked to describe the nature of the fall, Renville
indicated, "I didn't sway or go like, you know, from being icy, I didn't sway or nothing.

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I was just walking and then I just kind of like I just fell on my butt." Id. at 58:3-5.
Angela Johnson, an employee working at WWKM, witnessed the fall and was close
enough to hear a loud popping sound. Johnson testified that no salt was placed outside
and that there was ample time for the maintenance employees to put salt around the main
entrance of the building.
At approximately 4:00 p.m., Renville was driven by ambulance to Prairie Lakes
Hospital in Watertown, South Dakota. Dr. Casey Johnston evaluated the plaintiffs leg
and determined she fractured her left tibial shaft and performed surgery on her the next
day. Dr. Johnston had follow-up appointments with Renville on January 31, 2013, March
7, 2013, and April 4, 2013.
WWKM has its own Maintenance Department. In the wintertime, the
maintenance crew at WWKM typically puts salt and sand on the ground near the main
entrance every hour. Id. at 14:8-12. Winfield Thompson, one of the maintenance
employees, testified that one spot of particular importance was the sidewalk by the
entrance near the north edge of the awning, and that it was a normal occurrence for water

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to accumulate and freeze on the sidewalk by the north side of the awning. W. Thompson
Dep. 8:6-9:10, 11:10-22, 12:4-18.
The plaintiff has had prior injuries to her left leg. In 2009, she broke her left
femur when she fell on the ledge of a sidewalk. As a result, she underwent surgery to
have a rod placed in her left leg. Renville also suffers from left foot drop, which causes
difficulty in lifting her left leg. Dr. Johnston noted that "[m]ost people with a foot drop
will walk with what we call a steppage gait[,] [m]eaning they will look like they're trying
to go up a step and their foot tends to hit on their toe first instead of the heel, as would be
a normal gait pattern." Johnston Dep. 13:2-6. Lastly, Renville has screws in her knee
from multiligament injuries. When asked whether the plaintiffs prior leg complications
contributed to her fall on January 11, 2013, Dr. Johnston replied, "The fact that she has
pre-existing osteoarthritis and pre-existing foot drop probably would put her at risk of
falling just in and of themselves, yes." Id. 21:18-23. The plaintiff has designated Dr.
Johnston as an expert in this case.
STANDARD OF REVIEW
According to Rule 56(a) of the Federal Rules of Civil Procedure, the Court "shall
grant summary judgment 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 oflaw." "Summary
judgment procedure is properly regarded not as a disfavored procedural shortcut, but
rather as an integral part of the Federal Rules as a whole, which are designed 'to secure
the just, speedy, and inexpensive determination of every action.' " Celotex v. Catrett,
477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1). The moving party has the burden
of establishing the absence of a genuine dispute of material fact. Fed. R. Civ. P. 56 (c).

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Once the moving party has met its burden of demonstrating there is no genuine dispute of
material fact, "a moving party may not rest upon mere denials or allegations, but must
instead set forth specific facts sufficient to raise a genuine issue for trial." Rose-Maston
v. NME Hospitals, Inc., 133 F.3d 1104, 1107 (8th Cir. 1998). A genuine dispute arises
"if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 206 S.Ct. 2505, 91 L.Ed.2d
202 (1986).
The Court must view the admissible evidence in the light most favorable to the
nonmoving party and give that party the benefit of all reasonable inferences drawn from
the evidence. Country Life Ins. Co. v. Marks, 592 F.3d 896, 898 (8th Cir. 2010).
However, the scope of admissible evidence is quite finite: "Only disputes over facts that
might affect the outcome of the suit under the governing substantive law will properly
preclude the entry of summary judgment." Paulsen v. Ability Ins. Co., 906 F. Supp. 2d
909, 911 (D.S.D. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S.Ct. 2505, 91 L.Ed. 202 (1986)).

ANALYSIS
I.

Federal Tort Claims Act
The Federal Tort Claims Act is a limited waiver of the United States' sovereign

immunity. 28 U.S.C. § 1346(b)(l) explains:
The district courts ... shall have exclusive jurisdiction of
civil actions on claims against the United States, for money
damages, accruing on and after January 1, 1945, for injury
or loss of property, or 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

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claimant in accordance with the law of the place where the
act or omission occurred.
"When the FTCA action arises at an IHS facility within the territory of an American
Indian Reservation, this Court must apply the substantive law of the state in which the
reservation is located." Gunville v. United States, 985 F.Supp.2d 1101, 1105 (D.S.D.
2013). In this case, the negligent act or omission alleged by the plaintiff occurred at an
Indian Health Services facility within the territory of the Lake Traverse Reservation.
Because the Lake Traverse Reservation is located in South Dakota, South Dakota
substantive law governs this action.
II.

South Dakota Negligence Law

South Dakota law defines negligence as "the breach of a duty owed to another,
the proximate cause of which results in injury." 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." Janis
v. Nash Finch Co., 780 N.W.2d 497, 500 (S.D. 2010) (quoting Poelstra v. Basin Elec.
Power Coop., 545 N.W.2d 823, 825 (S.D. 1996)). While a jury generally determines
whether a duty has been breached, "the existence of a duty is a question of law to be
determined by the court." Id. at 500-501 (quoting Small v. McKennan Hosp., 437
N.W.2d 194, 199 (S.D. 1989)).
III. Natural Accumulation Rule

On January 11, 2013, the plaintiff was an invitee at WWKM. South Dakota "has
retained the common-law classifications of trespasser, licensee, and invitee in
determining the duty a landowner owes the entrants on his land." Janis v. Nash Finch

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Co., 780 N.W.2d 497, 501 (S.D. 2010). South Dakota law indicates a possessor ofland
"owes a business visitor or invitee the duty of using ordinary or reasonable care for the
benefit of the invitee's safety." Gunville v. United States, 985 F.Supp.2d 1101, 1104
(D.S.D. 2013) (quoting Luke v. Deal, 692 N.W.2d 165, 169 (S.D. 2005)). This general
duty includes a duty to keep the property reasonably safe and a duty to warn invitees of
concealed, dangerous conditions known to the possessor ofland. Id.; Janis v. Finch Co.,
780 N.W.2d 497, 501 (S.D. 2010). South Dakota has adopted§ 343 of the Restatement
(Second) of Torts in determining an occupant's liability to his invitees, which states:
A possessor of land is subject to liability for physical harm
caused to his invitees by a condition on the land if, but only
if, he:
(a) knows or by the exercise ofreasonable care would
discover the condition, and should realize that it
involves an unreasonable risk of harm to such
invitees, and
(b) should expect that they will not discover or realize the
danger, or will fail to protect themselves against it,
and
(c) fails to exercise reasonable care to protect them
against the danger.
Janis, 780 N.W.2d at 502 (quoting Restatement (Second) of Torts§ 343 (1965)). "A
possessor of land ordinarily is not liable to an invitee for harm caused by a dangerous
condition on the land that is known or obvious to the invitee." Id. (citing Luther v. City
of Winner, 674 N.W.2d 339, 347 (S.D. 2004)). Specifically, "an owner or occupant of
property is not liable to pedestrians for injuries resulting from a fall caused by the natural
accumulation of snow and ice on a sidewalk in front of the property." Budahl v. Gordon
and David Associates, 323 N.W.2d 853, 855 (S.D. 1982). The Honorable Roberto A.
Lange in Gunville explained:

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In a climate where there are frequent snowstorms and
sudden changes in temperature, these dangerous conditions
appear with a frequency and suddenness which defy
prevention, and usually, correction: consequently, the
danger from ice and snow in such locations is an obvious
one, and the occupier of the premises may expect that an
invitee on his or her premises will discover and realize the
danger and protect himself or herself against it.
Gunville, 985 F.Supp.2d at 1106 (quoting 62A Am.Jur.2d Premises Liability§ 656).
Three decisions from the United States District Court for the District of South
Dakota have applied Budahl to slip-and-fall cases. Pond v. United States, 07-cv-5058JLV, 2010 WL 331920 (D.S.D. Jan. 28, 2010); Sauerv. United States, 04-cv-1021-CBK,
Doc. 31 (D.S.D. Mar. 17, 2006); Gunville v. United States, 985 F.Supp.2d 1101 (D.S.D.
2013). "Pond and Sauer demonstrate that the decision in Budahl is not limited to falls on
the natural accumulation of ice and snow •on a sidewalk in front of the property.' "
Gunville, 985 F.Supp.2d at 1105 (quoting Budahl, 323 N.W.2d at 855). More
importantly, Sauer and Pond clarify that "whether application of Budahl 's natural
accumulation rule requires summary judgment may depend on the source of the iciness
and the length of time between the weather condition and the fall." Id. at 1108. In Sauer,
this Court stated:

If the ice that caused plaintiff to slip and fall was a result of
the natural accumulation of ice under wet snow during a
heavy snow and ice storm, defendant cannot be held
negligent. If the ice was a result of freezing and thawing
from the snow piled adjacent to the parking lot, that would
not be the natural accumulation of ice.
Sauer, 04-cv-1021-CBK, Doc. 31 at 4. The Court will look to such factors in
determining whether the dangerous condition was caused by a natural accumulation of
ice.

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The natural accumulation rule may not be applicable to this case. First, the Court
must look to whether the source of the dangerous condition was caused by a natural
accumulation of ice. Winfield Thompson, one of the maintenance employees, testified
that one spot of particular importance was the sidewalk by the entrance near the north
edge of the awning, and that it was a normal occurrence for water to accumulate and
freeze on the sidewalk near the north side of the awning. W. Thompson Dep. 8:6-9:10,
11: 10-22, 12:4-18. Thompson explained, "Normally it's kind of bad there, yeah, when it
melts it freezes. It's kind of icy there, right there, by that canopy there." Id. at 11: 18-22.
Moreover, Thompson testified that he has witnessed an accumulation of water form near
the northern edge of the awning as a result of water dripping from the roof. Id. at 12:4-6.
Similar to the reasoning in Sauer, when ice is allegedly formed as a result of runoff from
a roof or awning, the accumulation of ice is no longer a natural accumulation, but rather,
an abnormal accumulation. Water falling from the awning and roof and then freezing on
the sidewalk near the north side of the awning is not a natural accumulation. Factual
questions exist as to what happened here.
The Court must also look to the length of time between the weather condition and
the fall. Both parties agree the roads, parking lot, and sidewalks were wet the day of
Renville's fall. At 1:56 p.m. on January 11, 2013, the temperature dropped to thirty-one
degrees Fahrenheit with the wind increasing from six to eighteen miles per hour.
Thompson testified that it is common practice for maintenance employees to check the
entrance and sidewalks every hour. Id. at 14:8-12. Furthermore, Angela Johnson, an
employee at WWKM Health Care Center, testified that there was ample time for the
maintenance employees to put salt around the main entrance of the building. The Court

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finds the source of the iciness may not have been caused by a natural accumulation of ice.
The defendant had sufficient time and resources to make the entrance safe for invitees.
Therefore, the natural accumulation rule is not applicable to this case.

IV. Breach
Next, the defendant asserts that even in the absence of the natural accumulation
rule, WWKM kept the premises reasonably safe and thus did not breach the duty of
ordinary and reasonable care, as a matter of law. The defendant argues that it fulfilled its
duty by placing salt on the premises. The plaintiff disputes this fact. Ms. Johnson
testified that no salt was placed outside at the time of her fall and there was ample time
for salt or sand to be put on the icy areas of the entrance. Aff.

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2. Furthermore,

the defendant argues that the plaintiff has failed to support an inference that ice existed at
the time of the fall. The weather at the time of Renville's fall was below the freezing
point and windy, leaving the possibility that ice had formed near the north side of the
entrance. Additionally, the plaintiff testified in her deposition that she slipped on a patch
of black ice. Renville Dep. 53:25-54:8. Fed. R. Civ. P. 56(c)(l)(A) states: "A party
asserting that a fact cannot be or is genuinely disputed must support the assertion by
citing to particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations, admissions,
interrogatory answers, or other materials ... " In this instance, the plaintiff has supported
her assertion by citing to her deposition testimony and Ms. Johnson's affidavit. A
rational jury could find that the plaintiff slipped on a patch of black ice, and that the
defendant breached its duty in keeping its premises reasonably safe. Therefore, when
viewing the evidence and reasonable inferences drawn therefrom in a light favorable to

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the plaintiff, the defendant has failed to meet its burden of showing an absence of a
genuine dispute of material fact regarding this issue. An evidentiary hearing will be
required to determine these issues and determine the credibility of witnesses.
V.

Contributory Negligence

The final issue is whether the plaintiff is barred from recovery as a result of her
own contributory negligence, as a matter of law. SDCL § 20-9-2 states:
In all actions brought to recover damages for injuries to a
person or to that person's property caused by the
negligence of another, the fact that the plaintiff may have
been guilty of contributory negligence 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 plaintiffs contributory
negligence.
"Under this statute, the plaintiffs negligence is compared with the negligence of the
defendant, not with 'the ordinarily prudent person.'" Schmidt v. Royer, 574 N.W.2d
618, 627 (S.D. 1998) (citing Musilek v. Stober, 434 N.W.2d 765, 768 (S.D. 1989)). "'In
some cases, whether one's contributory negligence was more than slight may be decided
as a matter oflaw." Id. (citing Starnes v. Stofferahn, 160 N.W.2d 421, 426 (1968)).
"Slight is defined as 'small of its kind or in amount; scanty; meager.' " Lindhom v.
BMW ofN. Am., LLC, 202 F.Supp.3d 1082, 1100 (D.S.D. 2016) (quoting Wood v. City
of Crooks, 559 N.W.2d 558-560 (S.D. 1997)). However, "it is only when the facts show
beyond any dispute that plaintiff has committed negligence more than 'slight,' that it is
appropriate for the circuit court and this court to hold, as a matter oflaw, for a negligent

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defendant." Westover v. East River Elec. Power Coop. Inc., 488 N.W.2d 892, 896 (S.D.
1992). Because the finder of fact in this case must compare the negligence of the

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defendant in order to determine whether the plaintiffs contributory negligence was more
than slight, the Court finds summary judgment is not appropriate, as there is a genuine
dispute of material fact as to whether either party is liable for negligence, and if so, the
degree of such negligence. Therefore, the defendant is not entitled to summary judgment
on this issue.

ORDER
Now, therefore,
IT IS ORDERED:

1. Defendant's motion, Doc. 21, for summary judgment is denied.
DATED this

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BY THE COURT:

CHARLESB.KORNMANN
United States District Judge

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