Winterboer v. Edgewood Sioux Falls Senior Living, LLC

Filing 34

ORDER denying 19 Motion for Partial Summary Judgment; granting 24 Motion for Discovery; granting 24 Motion to Compel. Signed by U.S. District Judge Karen E. Schreier on 1/2/2014. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
ORVAL D. WINTERBOER,
Personally and As Personal
Representative of the Estate of
INEZ M. WINTERBOER,
Plaintiff,
vs.
EDGEWOOD SIOUX FALLS
SENIOR LIVING, LLC,
Defendant.

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CIV. 12-4049-KES

ORDER DENYING DEFENDANT’S
MOTION FOR PARTIAL SUMMARY
JUDGMENT AND GRANTING
PLAINTIFF’S MOTION TO COMPEL
DISCOVERY

Defendant, Edgewood Sioux Falls Senior Living, LLC, moves the court for
summary judgment on plaintiff Orval Winterboer’s punitive damages claim.
Winterboer resists the motion and moves to authorize and compel discovery
related to punitive damages. For the following reasons, the court denies
Edgewood’s motion for partial summary judgment and grants Winterboer’s
motion for discovery.
BACKGROUND
The facts, viewed in the light most favorable to Winterboer, the
nonmoving party on the partial summary judgment motion, are as follows:
Orval and Inez Winterboer were married in 1948. In 2008, Inez began
having difficulty with memory and was diagnosed with dementia. Inez was
placed in Edgewood Vista, an assisted living facility specializing in the care of

dementia patients, in August 2009. Inez lived in the C pod at Edgewood’s
facility in Sioux Falls.
In July 2009, Edgewood admitted A.F., another dementia patient. Shortly
after he arrived at Edgewood, A.F. began to have increasing behavioral issues.
A.F.’s problematic behavior included inappropriate sexual behavior directed at
female residents, wandering into pods and individual rooms he was not
supposed to enter, going through other residents’ personal belongings, and
shouting at and mimicking staff and other residents. It also included, on
several occasions, physical altercations with staff such as grabbing, shoving, or
shaking, resulting on one occasion in a worker’s compensation claim. A.F. was
emotionally volatile and could be difficult to redirect or calm down when upset.
Edgewood, in concert with A.F.’s physician, tried unsuccessfully to manage
A.F.’s problems with medication. Staff and management at Edgewood knew of
A.F.’s difficulties, his behavior, and the physical altercations with staff.
On April 2, 2010, A.F. entered the C pod, an area to which he was not
supposed to have access. Once in the C pod, A.F. entered Inez’s room and laid
down in her bed. When Inez found A.F. in her bed, she asked him to leave, and
he grabbed her. Staff heard the commotion and intervened. One staff member
kicked A.F. in the groin to separate him from Inez. During the encounter in her
room, Inez was pushed to the ground. The day after the incident in her room,
Inez was hospitalized and treated for a fractured thumb and a hip injury, which

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ultimately required hip surgery. Edgewood discharged A.F. following the
April 2, 2010, incident.
On March 20, 2012, Winterboer filed a complaint alleging negligence and
loss of consortium and seeking punitive damages. Docket 1. Winterboer alleged
that Edgewood was negligent in failing to recognize a pattern of escalating and
dangerous behavior by A.F., in failing to restrain or control A.F., and in failing
to provide for the safety of its vulnerable residents, including Inez. Additionally,
Winterboer asserted a claim for punitive damages. Id. Edgewood denied those
allegations. Docket 6. Following the commencement of this suit, Inez passed
away on June 18, 2012.
STANDARD OF REVIEW
Rule 56 of the Federal Rules of Civil Procedure provides that summary
judgment on all or part of a claim is appropriate when 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 must
present admissible evidence showing there is no dispute of material fact or that
the nonmoving party has not presented admissible evidence to support an
element of the case on which it bears the ultimate burden of proof. Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Fed. R. Civ. P. 56(c). Once the
moving party has met its burden, “[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
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Northwoods, Mo., 415 F.3d 908, 910 (8th Cir. 2005) (quoting Krenik v. Cnty. of
Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995)).
Summary judgment is not appropriate if there is a dispute about a
material fact that could affect the outcome of the case. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). When deciding 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, 588 (1986).
DISCUSSION
Because federal jurisdiction in this action is based on diversity, the court
applies South Dakota substantive law. Hammonds v. Hartford Fire Ins. Co., 501
F.3d 991, 996 n.6 (8th Cir. 2007) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 78
(1938)) (“We apply South Dakota substantive law because this diversity action
was brought in the District of South Dakota, and the district court sitting in
diversity applies the substantive law of the state in which it is located.”).
I.

Punitive damages
Under South Dakota law, punitive damages may not be recovered unless

expressly authorized by statute. SDCL 21-1-4. Relevant South Dakota law
states that:
In any action for the breach of an obligation not arising from contract,
where the defendant has been guilty of oppression, fraud, or malice,
actual or presumed, . . . the jury, in addition to the actual damage,
may give damages for the sake of example, and by way of punishing
the defendant.
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SDCL 21-3-2. To survive a summary judgment motion, a plaintiff must prove to
the court by clear and convincing evidence that a reasonable basis exists upon
which a jury could award punitive damages. Dahl v. Sittner, 474 N.W.2d 897,
902 (S.D. 1991); see also Selle v. Tozser, 786 N.W.2d 748, 757 (S.D. 2010)
(reiterating that the clear and convincing evidence of a reasonable basis
standard is a preliminary threshold lower than the standard required at trial).
In his brief, Winterboer relies on a presumed malice theory to support his
claim for punitive damages. “Actual malice is a positive state of mind, evidenced
by the positive desire and intention to injure another, actuated by hatred or illwill towards that person. . . . Presumed, legal malice, on the other hand, is
malice which the law infers from or imputes to certain acts.” Dahl, 474 N.W.2d
at 900 (internal citations omitted). A showing of either type of malice is
sufficient to support punitive damages. Bertelsen v. Allstate Ins. Co., 833
N.W.2d 545, 555 (S.D. 2013).
“ ‘A claim for presumed malice can be shown by demonstrating a
disregard for the rights of others.’ ” Selle, 786 N.W.2d at 757-58 (citing Isaac v.
State Farm Mut. Auto. Ins. Co., 522 N.W.2d 752, 761 (S.D. 1994)). Presumed
malice may be inferred when a party acts willfully or wantonly and injures
another. Bertelsen, 833 N.W.2d at 555 (quoting Selle, 786 N.W.2d at 757). With
respect to willful and wanton misconduct, the South Dakota Supreme Court
has stated that:

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There must be facts that would show that defendant intentionally
did something . . . which he should not have done or intentionally
failed to do something which he should have done under the
circumstances that it can be said that he consciously realized that
his conduct would in all probability, as distinguished from
possibility, produce the precise result which it did produce and
would bring harm to the plaintiff.
Berry v. Risdall, 576 N.W.2d 1, 9 (S.D. 1998) (quoting Tranby v. Brodock, 348
N.W.2d 458, 461 (S.D. 1984)). Whether a defendant’s conduct is willful and
wanton is determined by an objective standard, rather than the defendant’s
subjective state of mind. Id.
Leading up to March 2010, A.F. had shown increasing behavioral
difficulties. See Docket 28-2 at 9. On January 1, 2010, A.F. became agitated
and pushed a staff member against a table. Docket 28-10 at 5. On March 11,
2010, A.F. grabbed a staff member by the wrist and would not let go and
shoved a chair into a staff member. Docket 28-2 at 9. On March 13, 2010, A.F.
tried to tip a staff member, Glenda Schroedermeier, out of her chair, and then
grabbed her by the shoulders and shook her hard enough to cause injury.
Docket 28-4 at 3-4. Katherine Pfeifle, designated as an expert witness for
Winterboer, stated that from September 18, 2009, through April 2, 2010,
Edgewood staff documented twenty-four behavioral incidents involving A.F.
Docket 28-9 at 19. She further testified that A.F. began to exhibit inappropriate
behavior in September 2009 and that his behavior became “totally out of
control” on January 1, 2010. Id. at 9. Pfeifle also testified that, in her opinion,

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A.F. should have been transferred out of Edgewood by March 11, 2010. Id. at
12.
Edgewood knew that A.F. would wander into other residential pods if the
doors were not kept properly secured. See Docket 28-4 at 6. Although
Edgewood staff knew that A.F. was not supposed to get into the C pod, the door
to C pod was not always locked, and Edgewood sometimes let residents wander
between pods. Compare Docket 28-2 at 11, 15 (stating that A.F. could “wander”
into other pods as long as he wasn’t upsetting anyone) with Docket 28-2 at 2-3
(stating that C pod was supposed to be locked at all times because it provided
access to the main entrance and posed a high flight risk). The door into the C
pod was not a self-closing or automatically latching door. Docket 28-3 at 3.
Winterboer stated that on three occasions while he was visiting Inez, A.F.
wandered into the C pod and peered into Inez’s room, prompting Winterboer to
tell A.F. he was not allowed to be in Inez’s room. Winterboer testified that on
one of those occasions, A.F. came “way in” and that “I thought I was going to
have a problem, but he left.” Docket 28-1 at 6.
Edgewood argues that those facts do not establish presumed malice.
Edgewood cites, among other authority, this court’s decisions in Nissen v.
Johnson, Civ. No. 09-4166-KES, 2011 WL 4832561 (D.S.D. Oct. 12, 2011),
DeNeui v. Wellman, Civ. No. 07-4172-KES, 2009 WL 4847086 (D.S.D. Dec. 9,
2009), and Benson v. Giordano, Civ. No. 05-4088-KES, 2008 WL 2390835
(D.S.D. June 9, 2008), for the proposition that courts applying South Dakota
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law on punitive damages should grant summary judgment unless the plaintiff
can show an intent to cause the exact harm in the exact manner alleged in the
complaint. Docket 22 at 3-6 (“Under South Dakota law, for punitive damages to
be awarded the evidence must show that the defendant’s mental state or
intention was to cause the victim injury or harm in the exact manner alleged in
the lawsuit.”).
First, if the court were to accept Edgewood’s proposed standard requiring
an intent to harm Inez, the presumed malice theory of punitive damages would
virtually disappear. The availability of a presumed malice theory evaluated by
an objective standard is intended to serve as an alternative to showing a
defendant’s actual, affirmative intent to cause harm. See Bertelsen v. Allstate
Ins. Co., 833 N.W.2d 545, 555 (S.D. 2013) (holding that proof of either actual
malice or presumed malice is sufficient, and that presumed malice does not
require a desire or intent to cause injury).
Second, the South Dakota Supreme Court allowed a claim for punitive
damages to proceed without a specific intended victim under a presumed
malice theory in a case involving driving under the influence of alcohol.
Flockhart v. Wyant, 467 N.W.2d 473 (S.D. 1991). In that case, the court held
that the defendant’s consumption of enough alcohol to raise her blood alcohol
level to 0.30 percent before driving fifty miles on the highway, combined with
her awareness of the risks her conduct created based on prior drunk-driving
classes and in-patient alcohol treatment programs, supported a finding that the
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defendant “evidenced a conscious disregard for the rights of all motorists on our
highways.” Id. at 478 (emphasis added). In Flockhart, the court did not rely on
evidence that the defendant affirmatively intended to cause an accident by
driving under the influence of alcohol, nor did it rely on evidence that the
defendant specifically targeted the victim. Therefore, behavior that creates a
substantially certain and known risk of an injurious outcome, even if that risk
is shared among an indefinite and unidentified group, can support a claim for
punitive damages. Accordingly, Winterboer does not need to prove that
Edgewood knew or intended that Inez herself would be injured. Rather,
Winterboer only needs to demonstrate that Edgewood consciously realized that
in all probability, its acts or omissions would result in a violent confrontation
between a resident and A.F.
Winterboer has pleaded facts1 and introduced admissible evidence to
show that (1) A.F.’s behavior had been deteriorating over time and was
becoming increasingly aggressive and violent in the months leading up to Inez’s

1

Edgewood contends in its reply brief that Winterboer has not pleaded
facts sufficient to state a claim under the heightened pleading standard
imposed on actions for fraud or mistake by Rule 9(b) of the Federal Rules of
Civil Procedure. Docket 29 at 2. Arguments raised for the first time in reply
briefs should not be considered because the opposing party has had no
opportunity to respond. See Johnson v. Berry, 171 F. Supp. 2d 985, 990 n.3
(E.D. Mo. 2001). Regardless, Rule 9(b) states that malice may be alleged
generally. Even if malice had to be pleaded specifically, Winterboer pleaded
sufficient specific facts supporting his presumed malice theory. See Compl.
¶¶ 10-12, Docket 1 at 2 (alleging that Edgewood was aware of the danger posed
by A.F. and failed to take corrective action before the incident on April 2, 2010).
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injury; (2) A.F. was known to wander into the C pod and into Inez’s room; (3)
A.F. had a preoccupation with female residents; and (4) Edgewood was aware of
A.F.’s behavior. Additionally, Edgewood is a facility specializing in the care of
elderly residents with dementia, and it is aware of the behavioral challenges
and risks associated with a violent resident. See Docket 28-2 at 4-5 (outlining
Edgewood’s policy regarding dismissal of residents who become aggressive).
According to Pfeifle, Edgewood “literally had a ticking time bomb with [A.F.] . . .
he was inappropriate in that environment, and he should have been discharged
because he was just waiting to blow.” Docket 28-9 at 14-15. Edgewood’s
knowledge of A.F.’s increasingly violent behavior and his attacks on staff
members creates a reasonable basis for a jury to find that Edgewood
consciously disregarded a known risk that violent harm would, in all
probability, occur to a resident unless Edgewood discharged A.F., that
Edgewood failed to act under those circumstances, and that such harm did
occur.2

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Edgewood argues in its reply brief that because Winterboer has not
presented any expert testimony that Inez’s injuries were caused by the incident
with A.F., Winterboer has not demonstrated causation. Docket 29 at 7-8; see
also Schaffer v. Edward D. Jones & Co., 521 N.W.2d 921, 928 (S.D. 1994)
(holding that punitive damages must be based on an underlying claim). First,
as previously noted, new arguments in reply briefs should not be considered
because the opposing party has not had an opportunity to respond. See
Johnson v. Berry, 171 F. Supp. 2d at 990 n.3. Second, Edgewood has only
moved for summary judgment on Winterboer’s claim for punitive damages, and
has not moved to dismiss or moved for summary judgment on Winterboer’s
underlying negligence claim. Because no challenge to the sufficiency of the
underlying negligence claim is properly before the court at this time, the court
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II.

Discovery
South Dakota law states that a court must find, after a hearing, by clear

and convincing evidence that there is a reasonable basis for punitive damages
before any discovery related to punitive damages may occur. SDCL 21-1-4.1.
But that statute, as it relates to discovery, “is not applied by federal courts
sitting in diversity” because it is purely procedural and conflicts with the
federal rules of evidence. Burke v. Ability Ins. Co., 291 F.R.D. 343, 350 (D.S.D.
2013) (citing Houwman v. Gaiser, Civ. No. 10-4125-KES, 2011 WL 4345236, at
*10 (D.S.D. Sept. 15, 2011)). “[SDCL 21-1-4.1] does not alter the standard of
proof required to recover on a punitive damages claim. At trial, a plaintiff must
still demonstrate by a preponderance of the evidence that he or she is entitled
to punitive damages. . . . It is a procedural statute.” Dahl v. Sittner, 474 N.W.2d
897, 902 (S.D. 1991) (internal citation omitted).
The scope of civil discovery is governed by Federal Rule of Civil Procedure
26, which provides:
Unless otherwise limited by court order, the scope of discovery is as
follows: Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense—including
the existence, description, nature, custody, condition, and location
of any documents or other tangible things and the identity and
location of persons who know of any discoverable matter. For good
cause, the court may order discovery of any matter relevant to the
subject matter involved in the action. Relevant information need
not be admissible at the trial if the discovery appears reasonably

will not grant summary judgment on Winterboer’s punitive damages claim
based on an alleged flaw with the underlying claim.
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calculated to lead to the discovery of admissible evidence. All
discovery is subject to the limitations imposed by Rule 26(b)(2)(C).
Fed. R. Civ. P. 26(b)(1). Discovery under Rule 26(b) is extremely broad. 8
Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2007
(3d ed.).
A party seeking discovery must make a threshold showing of relevance.
See Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992). After the
party requesting discovery has met its initial burden, the party resisting
discovery must provide specific, nonconclusory reasons why the requested
discovery is not relevant or otherwise should not be allowed. See Burke, 291
F.R.D. at 349 (citing Cincinnati Ins. Co. v. Fine Home Managers, Inc., Civ. 09234, 2010 WL 2990118, at *1 (E.D. Mo. July 27, 2010)).
Winterboer seeks to compel discovery related to Edgewood’s financial
condition.3 Item three requests that Edgewood “[l]ist all cash on hand, bank
accounts, savings accounts, IRA accounts, saving certificates, stocks, bonds,
securities or any other such investments of any kind as to which you are the
owner or part owner, or in which you claim any interest.” Docket 28-14 at 2.
Item four asks Edgewood to “[l]ist all real estate owned by you or in which you

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Winterboer also seeks the court’s permission to commence discovery on
punitive damages under SDCL 21-1-4.1. Because that statute is purely
procedural with respect to discovery and is not applied by a federal court
sitting in diversity, Winterboer does not need authorization to commence
discovery into punitive damages. Therefore, the court will construe
Winterboer’s motion, at Docket 24, as a motion to compel only.
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claim any interest . . . .” Id. at 3. Item five asks Edgewood to state “your current
net worth, including but not limited to your gross income and expenses, net
income or deficit, net worth and total indebtedness for the past 30 months.” Id.
at 4. Item six requests that Edgewood produce “any financial statements,
including any statements showing profit, loss, and income for the period from
2010 to the present.” Id. Edgewood responded to items three through six by
stating:
Objection. This Interrogatory/Request for Production is objected to
insofar as it seeks information which is not relevant or reasonably
calculated to lead to the discovery of relevant evidence. The reasons
and legal grounds for this objection have been set forth by
Defendant in its Motion for Partial Summary Judgment on Punitive
Damages.
Id. at 2-4.
As a threshold matter, Winterboer asserts that because he is asserting a
claim for punitive damages, financial discovery is relevant and admissible.
Docket 26 at 12. Winterboer cites Schaffer v. Edward D. Jones & Co., 521
N.W.2d 921 (S.D. 1994), for the rule that “where the plaintiff is entitled to
exemplary damages, evidence of defendant’s pecuniary circumstances is
admissible.” Id. at 929; see also Flockhart, 467 N.W.2d at 479 (stating that a
defendant’s financial condition has a bearing upon punitive damage awards).
Edgewood relies solely on its objection that, since Winterboer’s punitive
damages claim should not proceed, any discovery relevant only to punitive
damages should not be had. Docket 30 at 3-4.
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In light of the court’s decision to deny Edgewood’s motion for summary
judgment on Winterboer’s claim for punitive damages, Winterboer has made a
threshold showing of relevance with respect to the discovery sought. Edgewood
has not provided any additional specific reasons that would limit the
availability of otherwise relevant evidence under Rule 26(b)’s broad standard.
Therefore, the court grants Winterboer’s motion to compel discovery with
respect to items three through six, inclusive, in Winterboer’s second set of
interrogatories and request for production of documents.
Rule 37 requires a court to award a movant’s reasonable expenses if a
motion to compel is granted, after providing a reasonable opportunity to be
heard. Fed. R. Civ. P. 37(a)(5)(A). The court must not order payment of expenses
if the movant filed the motion before conferring in good faith to resolve the
dispute, if the nondisclosure or objection was justified, or if other
circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(a)(5)(A)(i)(iii). Because the parties have not had an opportunity to be heard on the issue
of expenses, the court will reserve ruling on any expense award in connection
with Winterboer’s motion to compel.
CONCLUSION
Punitive damages may be awarded under South Dakota law when a
defendant has acted with a conscious realization that its conduct would in all
probability result in a particular harm. Winterboer has introduced clear and
convincing evidence that a reasonable basis exists upon which a jury could, at
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trial, find that Winterboer is entitled to punitive damages. Based on the court’s
denial of Edgewood’s motion for partial summary judgment, discovery into
information relevant to punitive damages is appropriate. Accordingly, it is
ORDERED that defendant Edgewood Sioux Falls Senior Living, LLC’s
motion for partial summary judgment (Docket 19) is denied.
IT IS FURTHER ORDERED that plaintiff Orval Winterboer’s motion to
compel discovery (Docket 24) is granted. The deadline for submission of all
materials related to an award of expenses for the motion to compel is
January 30, 2014.
Dated January 2, 2014.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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