Anderson v. Wal-Mart Stores, Inc.

Filing 43

MEMORANDUM OPINION AND ORDER denying as moot 40 Motion to proceed ; denying 27 Motion for Summary Judgment. Signed by U.S. District Judge Karen E. Schreier on 6/8/18. (DJP)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
RUBY ANDERSON,

4:15-CV-04180-KES

Plaintiff,
vs.
WAL-MART STORES, INC.,

MEMORADUM OPINION AND ORDER
DENYING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT

Defendant.
Plaintiff, Ruby Anderson, initiated this action against defendant, WalMart Stores, Inc. Docket 1. Anderson alleges that Wal-Mart was negligent in
the installation of a wheel and tire on her vehicle. Id. Wal-Mart moves for
summary judgment arguing that Anderson cannot establish a prima facie case
of negligence. Docket 27. For the following reasons, Wal-Mart’s motion for
summary judgment is denied.
FACTUAL BACKGROUND
The facts, viewed in the light most favorable to Anderson, the nonmoving
party, are as follows:
As of December 7, 2014, Anderson owned a 1999 Dodge 1500 pick-up
truck that she had owned for over a year after purchasing it in used condition.
Docket 30-1 at 12:16-17. From the time Anderson purchased the vehicle until
December 7, 2014, she did not buy any tires for the vehicle, and she did not
have any problems with its existing tires. Id. at 12:20-25.

On December 7, 2014, Anderson brought her vehicle to the Wal-Mart
store located in Watertown, South Dakota, for servicing to address a bubble in
the front passenger side tire. Docket 29 ¶¶ 1-2. Initially, Anderson’s plan was
to have Wal-Mart replace the vehicle’s front passenger side tire with the
vehicle’s spare tire. Id. ¶ 3. After observing a significant tread difference
between the vehicle’s front driver side tire and the vehicle’s spare tire, however,
it was decided that Wal-Mart would install a new tire on the front passenger
side, remove the wheel and tire from the front driver side, and install the spare
wheel and tire on the front driver side of the vehicle, which is what Wal-Mart
did. Id. Upon return of the vehicle to Anderson, Wal-Mart indicated to her that
the vehicle was fit to drive. Docket 1 ¶ 13. Anderson alleges that after her
vehicle was serviced at the Watertown Wal-Mart on December 7th, it remained
parked at her home in Brookings until December 14th. 1 Docket 29 ¶ 5.
On December 14, 2014, Anderson drove her vehicle on Interstate 29 from
Brookings to Watertown at approximately 2:30 a.m. Docket 29 ¶ 6. Anderson
asserts that she was wearing a seatbelt and that she was driving at or just
under the speed limit. Docket 30-1 at 6:12-22. Two of Anderson’s daughters
were with her in the car. Docket 29 ¶ 7. About 17 miles north of Brookings, 2

The court infers that Anderson drove her vehicle back to Brookings on or
about December 7 following Wal-Mart’s service. This inference is supported by
Anderson’s deposition in which she stated the vehicle remained parked at her
house for the week leading up to December 14 when she drove the vehicle from
Brookings to Watertown. Docket 30-1 at 13:15-14:5.
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Plaintiff stated that the accident occurred on Interstate 29 near the exit for
Estelline, South Dakota.
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Anderson alleges that she heard a loud grinding noise. Id. ¶ 8. And within
seconds, she felt the vehicle tip to the left. Id. Anderson then slammed on the
brakes and maneuvered the vehicle from the right northbound lane to the
shoulder of the left northbound lane where the vehicle came to a stop. Docket
30-1 at 7:7-8:8. At the same time, Anderson saw a wheel roll past them. Docket
28 at 2, 2 n.1. Anderson contends that when the vehicle suddenly tipped to the
left, she struck her head and the left side of her body against the window of the
vehicle. Docket 30-1 at 7:7-17.
Once the vehicle stopped on the shoulder of the interstate, Anderson
called 911 while her daughters looked for the wheel that had rolled past them.
Id. at 8:14-23. They were unable to find the wheel due to heavy fog. Id. at 9:2225. Later the same day, Anderson and her daughters found a wheel in the
median at approximately the same location on the interstate where the car
came to a stop early that morning. Id. at 10:3-11; Docket 30-7. The wheel
found in the median was subsequently evaluated by Anderson’s expert and
Wal-Mart’s experts. See Docket 30-3; Docket 30-4; Docket 30-5. It is now
undisputed that the wheel and attached tire that Anderson and her daughters
found in the median are not the wheel and tire that were installed by Wal-Mart
on Anderson’s vehicle. Docket 30-7 at 1; Docket 30-5 at 21; Docket 30-4 at 2.
STANDARD OF REVIEW
Summary judgment is appropriate “if the movant shows that there is no
genuine issue as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). “[A] party seeking summary judgment
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always bears the initial responsibility of . . . demonstrat[ing] the absence of a
genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). The moving party must inform the court of the basis for its motion and
also identify the portion of the record that shows there is no genuine issue in
dispute. Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citation
omitted).
The nonmoving party to a motion for summary judgement “must
substantiate [her] allegations with ‘sufficient probative evidence [that] would
permit a finding in [her] favor on more than mere speculation, conjecture, or
fantasy.’ ” Moody v. St. Charles Cty., 23 F.3d 1410, 1412 (8th Cir. 1994)
(second alteration in original) (quoting Gregory v. Rogers, 974 F.2d 1006, 1010
(8th Cir. 1992)). The nonmoving party is entitled to the benefit of all reasonable
inferences to be drawn from the underlying facts in the record. Vette Co. v.
Aetna Cas. & Sur. Co., 612 F.2d 1076, 1077 (8th Cir. 1980). “[T]he mere
existence of some alleged factual dispute between the parties is not sufficient
by itself to deny summary judgment . . . .” Get Away Club, Inc. v. Coleman, 969
F.2d 664, 666 (8th Cir. 1992) (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986)). “Instead, ‘the dispute must be outcome determinative
under prevailing law.’ ” Id. (quoting Holloway v. Pigman, 884 F.2d 365, 366 (8th
Cir. 1989)). Thus, “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party,” summary judgment is not appropriate.
Anderson, 477 U.S. at 248.

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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
(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.”).
DISCUSSION
“An action in negligence generally requires a plaintiff to prove ‘duty,
breach of that duty, proximate and factual causation, and actual injury.’ ”
O’Day v. Nanton, 905 N.W.2d 568, 574 (S.D. 2017) (quoting Hamilton v.
Sommers, 855 N.W.2d 855, 861 (S.D. 2014)). Here, Wal-Mart argues that
summary judgment is appropriate because Anderson cannot establish a prima
facie case of negligence. Docket 27. Specifically, Wal-Mart contends that
Anderson is unable to prove the elements of breach of duty and causation. Id.
Wal-Mart does not contest the elements of duty and injury in its motion and
memorandum in support of summary judgment. Id.; Docket 28.
I.

Breach of the Duty of Care
“[G]enerally, once a duty is established, whether a breach of that duty

occurred is for the finder of fact, not for the court.” Johnson v. Matthew J.
Batchelder Co., Inc., 779 N.W.2d 690, 694 (S.D. 2010) (citing Casillas v.
Schubauer, 714 N.W.2d 84, 88 (S.D. 2006)). Summary judgment on the issue of
breach is only appropriate “ ‘when reasonable [people] can draw but one
conclusion from facts and inferences that they become a matter of law and this
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rarely occurs.’ ” Id. (alteration in original) (quoting Mitchell v. Ankney, 396
N.W.2d 312, 313 (S.D. 1986)).
In Mitchell v. Ankney, the South Dakota Supreme Court reversed a
circuit court’s grant of summary judgment, which found no breach on the part
of defendants as a matter of law. Mitchell, 396 N.W.2d at 313. There, the
parties disputed whether a hose on defendants’ porch created an unsafe
condition on the property. Id. The Supreme Court found the jury should have
determined whether defendants breached their “general duty to exercise
reasonable care.” Id. Thus, summary judgment was improperly granted by the
trial court. Id. at 313-14.
In Pierce v. City of Belle Fourche, 624 N.W.2d 353 (S.D. 2001), the South
Dakota Supreme Court again reversed a circuit court’s order granting
defendant’s motion for summary judgment. There, the court first determined
that, as a matter of law, defendant owed plaintiff a duty to “provide and
maintain adequate tie-down ropes” to secure aircrafts that were parked at
defendant’s airport. Id. at 357. But the question of breach, the court held, was
a matter for a jury because there was a dispute of fact. Id. at 357. The case was
remanded for a factual determination of whether defendant breached its duty
to the plaintiff. Id.
Here, a reasonable fact finder could draw more than one conclusion as to
whether Wal-Mart breached its duty to act reasonably while providing services
to Anderson. The report submitted by Wal-Mart’s expert, Darko Babic,
describes the standard procedure for wheel installation at Wal-Mart:
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[A]fter the wheel installation lug nut torqueing, the vehicle is taken
outside and driven in a figure eight, which is then followed by
another lug nut torqueing. Subsequently, the vehicle is taken
outside and driven in a figure eight again, which is followed by
another lug nut torqueing sequence. This means that the lug nuts
at the subject Wal-Mart store are torqued three (3) times in total
before the vehicle is released to the customer.
Docket 30-5 at 6. From his review of the Wal-Mart surveillance footage, Babic
concluded Wal-Mart employees followed this procedure when torqueing the lug
nuts on Anderson’s vehicle. Docket 30-5 at 7-11. Babic also concluded that
“Wal-Mart’s lug nut tightening procedure . . . is conservative and above [the]
standard of care . . . . There is no evidence to conclude that Wal-Mart
performed installation of the left front wheel on [Anderson’s vehicle]
inappropriately.” Docket 30-5 at 22.
Anderson’s expert, Mark Mandery, however, reached a different
conclusion after reviewing the same video footage as Babic. Particularly,
Mandery observed the following about the safety of Wal-Mart’s procedure:
[W]hen the [Wal-Mart] technician started torqueing the left front
wheel, the first lug nut he attempted to torque took at least two and
a half swings of the torque wrench before he moved to the next nut.
This indicates the rim wasn’t fully seated on the hub, leaving a gap
between them when the vehicle was lowered to the ground. When
this happens, the air gap between the rim and the hub will
eventually shift as the rim settles, causing a loose wheel condition
between the rim and the nut. This may take several miles of driving
before it will occur. In addition, the remaining four lug nuts each
took more than the standard one-quarter swing as well. . . .
In a situation in which a lug nut cannot be torqued in one swing,
the correct procedure to ensure a safely mounted wheel is to raise
the vehicle, remove the wheel, re-seat the rim on the hub, and start
the tightening sequence over again. Because the technician
experienced resistance with tightening the lug nuts, but failed to
exercise proper care to correct the issue, it is my opinion that the
repairs on this vehicle were not performed according to industry
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safety standards and the vehicle was released to the driver as a risk
and potential hazard.
Docket 30-3 at 2 (emphasis added) (footnote omitted). Wal-Mart argues that
Mandery’s expert opinion is unpersuasive because the wheel and tire he
examined were not the same wheel and tire that were installed by Wal-Mart.
Docket 28 at 5. In dismissing Mandery’s analysis, Wal-Mart fails to
acknowledge that much of his opinion is based on his review of Wal-Mart’s
surveillance footage, which is independent of the physical evidence that
Mandery examined. See Docket 30-3 at 2. Although the wheel that Mandery
examined may have corroborated his opinions that were formed from reviewing
the video, those opinions are not dependent on the physical evidence as WalMart suggests.
Thus, considering the conflicting expert reports in the record, a genuine
dispute of material fact exists as to whether Wal-Mart breached its duty of
reasonable care when servicing Anderson’s vehicle. And viewing the evidence in
the light most favorable to Anderson, as the nonmoving party, reasonable
people could draw more than one conclusion on the question of whether WalMart’s wheel replacement procedures left Anderson with a safe vehicle or a
“risk and potential hazard.” Thus, a question of fact exists as to whether WalMart breached the duty of care it owed to Anderson.
II.

Proximate Cause
“Proximate cause is defined as ‘a cause that produces a result in a

natural and probable sequence and without which the result would not have
occurred.’ ” Hamilton v. Sommers, 855 N.W.2d 855, 867 (S.D. 2014) (quoting
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Peterson v. Issenhuth, 842 N.W.2d 351, 355-56 (S.D. 2014)). “ ‘[T]he
defendant’s conduct [must have] such an effect in producing the harm as to
lead reasonable men to regard it as a cause’ of the plaintiff’s injury.” Leslie v.
City of Bonesteel, 303 N.W.2d 117, 119 (S.D. 1981) (quoting Mulder v. Tague,
186 N.W.2d 884, 887 (S.D. 1971)).
“Questions of proximate cause are for the jury in ‘all but the rarest of
cases.’ ” Hertz Motel v. Ross Signs, 698 N.W.2d 532, 538 (S.D. 2005) (quoting
Fritz v. Howard Twp., 570 N.W.2d 240, 244 (S.D. 1997)). In Hertz Motel, the
South Dakota Supreme Court reversed the circuit court’s order granting
plaintiff’s motion for summary judgment. Id. The court ruled in favor of the
defendant-appellant, because there was a genuine issue of material fact
concerning whether defendant’s installation of neon tube lights proximately
caused the fire at plaintiff’s motel. Id.
The South Dakota Supreme Court again reversed a circuit court’s grant
of summary judgment on a negligence claim in Garrido v. Team Auto Sales, Inc.,
--- N.W.2d ----, 2018 S.D. 41. There, the court found that a grant of summary
judgment was inappropriate where there was a genuine dispute of material fact
of whether defendant’s maintenance of a vehicle prior to plaintiffs’ purchase of
the vehicle was the proximate cause of plaintiffs’ carbon monoxide poisoning.
Id. ¶ 27. Thus, because there was a genuine dispute of material fact, the issue
of proximate cause was remanded. Id.
Arguing this court should rule on causation as a matter of law, Wal-Mart
relies on the South Dakota Supreme Court’s ruling in First Premier Bank v.
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Kolcraft Enterprises, Inc., 686 N.W.2d 430 (S.D. 2004) (superseded on other
grounds). There, the court held that “[c]ausation is almost always a fact
question.” Id. at 454. An exception to the general rule that prohibits the court
from ruling on causation as a matter of law can be made only when “ ‘there are
no differences of opinion on the interpretation of the facts.’ ” Id. (quoting Estate
of Gaspar v. Vogt, Brown & Merry, 670 N.W.2d 918, 920 (S.D. 2003)). In First
Premier Bank, the court held that the exception to the rule did not apply
because differences of opinion existed as to whether defendant’s product
proximately caused plaintiff’s injuries. Id. Thus, proximate cause had been
properly submitted to the jury as a question of fact. Id. The South Dakota
Supreme Court affirmed the circuit court’s decision to deny defendant’s motion
to rule on causation as a matter of law. Id.
Wal-Mart argues that the exception that was recognized, but not applied,
by the South Dakota Supreme Court in First Premier Bank applies here
because there is no difference of opinion on causation. Docket 28 at 6. WalMart’s argument is again premised on its reading of Mandery’s report as relying
only on the physical evidence—the wheel and tire—that he personally
examined. Id. at 5-6. As explained above, however, Wal-Mart misreads
Mandery’s report. Mandery’s report identifies several facts that are relevant to
causation. See Docket 30-3 at 2. One of these facts is Mandery’s assessment
that the improper wheel mounting procedure that he observed from Wal-Mart’s
video would likely lead to a “loose wheel condition between the rim and the
nut.” Id. Mandery further opines that it “may take several miles of driving”
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before this condition would occur. Id. Here, Anderson only drove the vehicle
from Watertown to Brookings where the car remained in Anderson’s driveway
until she drove it to Watertown again on December 14. Docket 30-1 at 13:1514:5. Thus, under Mandery’s analysis, it is not surprising that an improperly
mounted wheel would not necessarily detach immediately, but would occur
after several miles of driving.
Like the defendant in First Premier Bank, Wal-Mart fails to demonstrate
that there are no differences of opinion on the interpretation of facts as they
relate to causation. Wal-Mart appears to dispute Mandery’s causation analysis
by arguing that because Wal-Mart did not breach its duty to Anderson, it could
not have factually or legally caused Anderson’s harm. 3 This argument,
however, does not take into account the entire record presented. Here,
questions of fact exist as to whether Wal-Mart caused Anderson’s injury. Thus
summary judgment is denied.
CONCLUSION
Both Anderson and Wal-Mart agree that Wal-Mart owed Anderson a duty
to act reasonably while providing her with tire sales and services on December
7, 2014. But because questions of fact exist as to whether Wal-Mart breached
the duty it owed to Anderson and as to whether Wal-Mart’s alleged breach of its

“In general, ‘the issues of whether the defendant owed a duty to the plaintiff
and whether the defendant’s conduct proximately caused the plaintiff’s injury
are, in effect, so interrelated that they are generally treated as one in the
same.’ ” Docket 28 at 3-4 (quoting Goff v. Wang, 296 N.W.2d 729, 730 (S.D.
1980)).
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duty proximately caused Anderson’s injuries, summary judgment is denied.
Thus, it is,
ORDERED that Wal-Mart’s motion for summary judgment (Docket 27) is
denied.
It is FURTHER ORDERED that plaintiff’s motion to proceed (Docket 40)
is denied as moot.
DATED this 8th day of June, 2018.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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