Finkle et al v. Regency CSP Ventures Limited Partnership et al

Filing 118

MEMORANDUM OPINION AND ORDER re 72 MOTION For Ruling on Proper Application of Comparative Negligence Signed by U.S. District Judge Lawrence L. Piersol on 10/17/14. (SLW)

FILED

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA

aCT 1 7 2014

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SOUTHERN DIVISION

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GRACI FINKLE and PHILIP FINKLE,
Plaintiffs,
vs.
REGENCY CSP VENTURES LIMITED
PARTNERSHIP; and U.S. HOTEL AND
RESORT MANAGEMENT INC.,
Defendants.

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CIV 13-4019

MEMORANDUM OPINION
AND ORDER RE: MOTION
FOR RULING ON PROPER
APPLICATION OF COMPARATIVE
NEGLIGENCE

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Pending before the Court is Defendants' Motion for Ruling on Proper Application of
Comparative Negligence. Doc. 72. This Court has already held that it is probable that the South
Dakota Supreme Court would hold that an admission that an employee was acting within the scope
of his or her employment does not preclude an action for both respondeat superior and negligent
training or supervision and is allowing Plaintiffs to proceed on causes of action for respondeat
superior and negligent training or supervision. Doc. 71.
DISCUSSION
Defendants contend that the jury should compare Philip Finkle's alleged negligence solely
to Kathleen Funk's alleged negligence when applying the comparative fault analysis at triaL
Defendants maintain that it is unfair to assess an employer's fault a second time for the same
occurrence.
Plaintiffs rely on Wood v. City o/Cooks, 559 N.W.2d 558 (S.D. 1997), for the rule that
"[t]o determine whether a plaintiff's negligence is more than slight, the test is to compare it with the
negligence of all defendants." Id. at, 4 (citing Henry Woods & Beth Deere, Comparative Fault §
13: 1 (3d ed. 1996) (collecting cases and noting that 31 states now follow the majority view that
plaintiff's negligence is compared against the combined negligence of all defendants)).

In a diversity action, state substantive law applies. See Lamar Advertising ofS.D., Inc. v. Kay,

267 F.R.D. 568, 574 (D.S.D. 2010). This Court previously cited Wood v. City of Crooks, 559
N.W.2d 558 (S.D. 1997), as support for its belief that all the negligence of the parties should be
compared for comparative negligence purposes, but allowed any party who disagreed with the
Court's position to provide the Court with supporting arguments and authorities. The Court is not
convinced by the Defendants' argument that Wood is not controlling. See Wood v. City ofCrooks,
559 N.W.2d at 560 ("City's argument that Wood's negligence should be compared only with City's
negligence, as the sole non-settling defendant, is without merit. It would be patently unfair to deny
recovery to a plaintiff 10% at fault against nine defendants each 10% at fault simply because
plaintiffs negligence was equal or more than slight in comparison with a single defendant.")
Accordingly,

IT IS ORDERED that the test at trial in determining whether a plaintiffs negligence is
more than slight, is to compare it with the negligence of all defendants.

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Dated this l.l-"'day of October, 2014.

BY THE COURT:

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JG~

wrence L. Piersol
United States District Judge
ATTEST:
JOSEPH HAAS, CL~
BY: ,11mfVlOl. Uh
(SEAL) DEPt Y

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