Rodriguez v. Vaniperen et al

Filing 96

ORDER granting in part and denying in part 38 Motion for Summary Judgment; granting in part and denying in part 46 Motion for Summary Judgment; denying as moot 67 Motion to Strike; 62 Denying request for oral argument; denying 57 request to certify; 55 granting in part and denying in part request for judicial notice; denying as moot 79 Motion to supplement evidentiary record. Signed by U.S. District Judge Karen E. Schreier on 6/4/2024. (DJP)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
MATTHEW RODRIGUEZ, Individually
and as Special Administrator of the
Estate of Kelley Rodriguez Estate of
Kelley Rodriguez,
Plaintiff,
vs.
JAMES VANIPEREN and HARMS OIL
COMPANY,
Defendants.

4:23-CV-04006-KES

ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
PARTIAL MOTION FOR SUMMARY
JUDGMENT; GRANTING IN PART
AND DENYING IN PART
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT; DENYING
DEFENDANTS’ MOTION TO STRIKE;
DENYING PLAINTIFF’S REQUEST TO
CERTIFY; GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
JUDICIAL NOTICE REQUEST;
DENYING DEFENDANTS’ MOTION
FOR HEARING; DENYING
PLAINTIFF’S MOTION TO
SUPPLEMENT EVIDENTIARY
RECORD

This case centers around a tragic vehicle collision near Brookings, South
Dakota. See Docket 48 ¶¶ 1, 12. Defendant, James VanIperen, 1 an employee of
defendant, Harms Oil Co., drove a truck, crashed into Kelley Rodriguez’s car
parked in the right-hand lane of I-29, and ultimately killed Kelley. Docket 61
¶¶ 15, 17 (not disputing that VanIperen collided into Kelley’s vehicle), 21;
Docket 41-3 (showing Kelley’s car in right-hand lane). Plaintiff, Matthew

Defendants spell VanIperen inconsistently. See, e.g., Docket 39 at 1
(“VanIperen”); Docket 12 at 1 (“Van Iperen”). The court adopts the spelling in
the most recent filings, which appears to be VanIperen. See Docket 78 at 1.
1

Rodriguez, individually and as special administrator of the Estate of Kelley
Rodriguez, sued VanIperen and Harms Oil, bringing survival and wrongful
death claims. See Docket 6. 2
Defendants move for summary judgment, arguing plaintiff is barred from
recovery because Kelley was contributorily negligent and assumed the risk. See
Docket 38; Docket 39 at 4-17. In the alternative, defendants move for summary
judgment on plaintiff’s survival claim (on different grounds) and for partial
summary judgment on plaintiff’s request for punitive damages with respect to
plaintiff’s wrongful death claim. See Docket 39 at 17-22. Defendants also move
to strike various filings by plaintiff. See Docket 67. Additionally, defendants
move for oral argument on the various issues in the case. Docket 62. 3
Plaintiff opposes defendants’ motion for summary judgment, and cross
motions for partial summary judgment on the issue of defendants’ affirmative
defenses. 4 Docket 46; Docket 47. Plaintiff also opposes defendants’ motion to
The operative amended complaint does not expressly state a survival claim,
but because defendants do not challenge the sufficiency of the pleading and
instead attack the claim on its merits, the court construes the amended
complaint as stating a survival claim under SDCL § 15-4-1.
2

Defendants also move to stay all discovery on liability, or in the alternative,
stay all discovery pertaining to defendant VanIperen. Docket 77. Defendants
expressly state that this stay request does not apply to damages-related
discovery or their pending motion for summary judgment. See Docket 78 at 1
n.1. The court will address defendants’ motion to stay in a separate order.
3

Plaintiff’s initial motion is somewhat ambiguous regarding the claims on
which he requests partial summary judgment. See Docket 46. In the initial
motion, plaintiff states he seeks summary judgment “on Defendants’
affirmative defenses of assumption of the risk and punitive damages . . . .” Id.
Thus, construed alone, plaintiff does not expressly seek summary judgment on
defendants’ contributory negligence defense. See id. In his brief in support of
4

2

strike its filings, moves the court to take judicial notice of various documents,
and moves the court to certify the issue of whether punitive damages are
available in wrongful death claims to the South Dakota Supreme Court. See
Docket 55; Docket 57; Docket 71. Defendants object to some, but not all, of
plaintiff’s request to take judicial notice of certain documents and opposes
certification of the punitive damages issue to the South Dakota Supreme
Court. See Docket 65; Docket 66. Finally, plaintiff also moves to supplement
the evidentiary record pursuant to Rule 56(d)(3) in support of plaintiff’s
opposition to defendants’ pending motion for summary judgment. Docket 79. 5
After carefully considering the parties’ submissions and arguments, the
court finds oral argument unnecessary and thus denies defendants’ request for
oral argument. The court issues the following order:

his partial summary judgment request, however, plaintiff argues summary
judgment is appropriate in favor of him on the issue of contributory negligence.
See Docket 47 at 12-17. As it relates to punitive damages, plaintiff does not
argue in briefing that the court should grant summary judgment in his favor
on this matter, only that the court ought to certify the issue to the South
Dakota Supreme Court or decide for itself that such damages are available in
wrongful death actions. See id. at 17-30. In a later filing, plaintiff clarifies that
he only seeks summary judgment on defendants’ affirmative defenses of
assumption of risk and contributory negligence, but not on punitive damages.
See Docket 71 at 7 n.3. The court construes plaintiff’s partial summary
judgment motion accordingly, and only considers whether it should grant
partial summary judgment in favor of plaintiff on defendants’ affirmative
defenses of assumption of the risk and contributory negligence.
Plaintiff also moves to compel certain discovery. Docket 86. The court will
address this motion in a separate order.
5

3

FACTS 6

The undisputed facts are:
On November 15, 2022, Kelley Rodriguez rented a 2020 Chevy Equinox
and began a trip from Lincoln, Nebraska to Fargo, North Dakota. Docket 61 ¶ 2
(not disputing that Kelley was headed towards Fargo, North Dakota). The
Equinox’s fuel tank was empty, so Kelley filled it with 13.831 gallons of fuel at
a gas station near Gretna, Nebraska. Id. ¶ 3. On her way to Fargo, Kelley
stopped somewhere (the parties disagree where specifically) to spend the night.
Id. ¶ 4 (outlining disagreement but not disputing Kelley stopped somewhere).
The next day, on November 16, 2022, Kelley headed north on I-29, and
drove toward Brookings, South Dakota. See Docket 48 ¶ 1. Kelley’s car stopped
working (for reasons the parties dispute). See Docket 61 ¶ 7 (not disputing
Kelley’s car was stationary in the right northbound lane of I-29 but disputing
whether the Equinox ran out of gas or just stalled). Kelley’s car was in the right
northbound lane of I-29 and was not on the safety shoulder. See Docket 48 ¶ 5
(disputing only the relevance and reasons for being in the lane rather than the
shoulder). The Equinox’s tires, however, were pointed towards the safety
shoulder, and Kelley activated the Equinox’s hazard lights. See Docket 41-3
At times, both parties object to the opposing side’s statements of undisputed
fact on the grounds that the fact at issue is immaterial. See, e.g., Docket 48
¶ 7; Docket 61 ¶ 23. Unless otherwise explicitly stated, if the court includes the
fact in this opinion, the court overrules these immateriality objections because
Rule 401 is a low bar, and the court finds these facts are directly probative on
the issue of contributory negligence and assumption of risk. See Rembrandt
Enter., Inc. v. Tecno Poultry Equip, SpA, 2023 WL 9004917, at *6 (N.D. Iowa
Dec. 28, 2023) (describing the bar for relevance as posing a “low hurdle” and
collecting cases doing the same).
6

4

(dash camera footage); see also Docket 41-1 (sound of hazards in background
and Kelley saying she has her hazards on); Docket 41-2 (sound of hazards).
Kelley remained in her car and called AAA. See Docket 41-1 (first AAA
call); Docket 41-2 (second AAA call). The first AAA agent Kelley spoke to asked
Kelley, “Are you in a safe location?” to which Kelley replied, “Um, I’m not really
sure if I’m in a safe location. I’m just like . . . I’m on the interstate, like in the
first lane. I couldn’t . . . I’m driving a rental car and it told me that I had
backup fuel but like apparently I didn’t and the car just like stopped.” Docket
41-1. A moment later, the same AAA agent asked, “Are you in such a situation
that you may need to call the police, because of the traffic?” Id. Kelley
responded, “I mean I don’t think so, I have my hazards lights on . . . But the
heats off in the car and I only have like on a short sleeved shirt because I’m
going to a business meeting, so . . . I didn’t plan on spending any time out of
the car, ya know?” Id. The AAA agent replied, “Okay. Just want to make sure if
you are in a dangerous situation, think about if you need to call the police or
not so they can help you out.” Id. Kelley said, “Okay.” Id. The agent then
transferred Kelley to a different AAA associate. Id.
After the transfer, the second AAA representative asked, “Are you in a
safe location?” Docket 41-2. Kelley stated, “I am . . . like I’m kinda in a safe
location, I’m in the right lane of I-29 Interstate and I just need somebody to
come here quickly so I can . . . so I can get gas in my car and not like freeze.”
Id. Kelley also stated:

5

I’m in a rental car, and it told me that I had like this thing called
fuel reserve . . . [i]t said that my fuel was low, but then it said I had
like 20 miles of fuel for reserves so I was like alright well I’m a mile
from a gas station I should be fine, but then the car just stopped.
Id. Shortly afterwards, there is a faint crash noise. Id. The AAA agent then
asked, “And you say you need gas? You want us to come bring you gas? Hello?
Hello? Hello? Hello? Hello?” Id.
Kelley did not call 911 at any point. Docket 48 ¶ 8 (only disputing the
relevance of such fact). But another individual did: before the collision, a 911
caller reported seeing Kelley’s car in the middle of the lane and that “somebody
almost hit them.” Docket 50-2. The caller further explained that “when people
are going this fast on the interstate and it’s a white car, you don’t notice that
they’re stopped completely[.]” Id.
Kelley also did not attempt to leave her car at any point. Docket 48 ¶ 6
(not disputing that Kelley remained in the car but disputing this fact’s
relevance). The temperature outside was 18 degrees Fahrenheit. Docket 41-4 at
3. The record contains ambiguities over whether there was a coat inside of
Kelley’s car for her to wear. Compare Docket 41-1 (showing Kelley’s statement
to AAA representative that “the heat’s off in the car and I only have like on a
short sleeve shirt because I’m going to a business meeting so . . . um . . . I
didn’t plan on spending anytime like out of the car, you know?”); with, Docket
51 ¶ 8 (Kelley’s husband’s affidavit stating that when he retrieved Kelley’s
personal items from the car, he received Kelley’s winter coat).

6

That same day, VanIperen was driving a 2020 semi-truck loaded with
fuel, traveling north on I-29 near Brookings, South Dakota. Docket 61 ¶ 15.
VanIperen was an employee of Harms Oil Company. Id. While driving in the
right hand lane, VanIperen crossed over the fog line into the right shoulder
multiple times. See Docket 41-3; see also Docket 61 ¶ 16 (only disputing
relevance). The weather outside was clear and the visibility was about 9.9
miles. Docket 41-4 at 3.
Minutes after weaving twice over the fog line, VanIperen crashed into
Kelley’s vehicle. Id. VanIperen’s truck destroyed the rear half of the Equinox
and killed Kelley. Docket 61 ¶¶ 20-21; see also Docket 50-3. Kelley’s death
certificate lists Kelley’s interval of death as “instant.” Docket 41-7 at 2.
At the time VanIperen ran into Kelley, there was nothing on the road
blocking his view of the Equinox. See Docket 41-3. Additionally, VanIperen did
not attempt to stop or swerve the truck at any point. Id. Leading up to the
crash, VanIperen was on his phone using Tik Tok and making online
purchases. See Docket 61 ¶ 23 (disputing only the relevance). At the time of the
collision, VanIperen had an application open on his phone called “Balls Crush
– Bricks Breaker.” Id. (only disputing the relevance).
STANDARD
Summary 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 this
burden by presenting evidence that there is no genuine dispute of material fact
7

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). The moving party must inform the court
of the basis for its motion and identify the portions of the record that show
there is no genuine issue in dispute. Hartnagel v. Norman, 953 F.2d 394, 395
(8th Cir. 1992) (citation omitted).
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. Cnty. of Le
Sueur, 47 F.3d 953, 957 (8th Cir. 1995)). Summary judgment “must be denied
if on the record then before it the court determines that there will be sufficient
evidence for a jury to return a verdict in favor of the nonmoving party.” Krenik
47 F.3d at 957. It 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,
247-48 (1986).
Generally, when considering a motion for summary judgment 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, 587-88 (1986) (quoting United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962)). In cases involving cross motions for
summary judgment, however, the standard summary judgment principles
apply with equal force, though the approach is slightly modified. See
8

Woodstone Ltd. P’ship v. City of Saint Paul, 2023 WL 3586077, at *5 (D. Minn.
May 22, 2023). “[T]he court views the record in the light most favorable to
plaintiff when considering defendant’s motion, and the court views the record
in the light most favorable to defendant when considering plaintiff’s motion.”
Thompson-Harbach v. USAA Fed. Sav. Bank, 359 F. Supp. 3d 606, 614 (N.D.
Iowa 2019).
APPLICABLE LAW
Federal courts sitting in diversity apply the substantive law of the forum
state. See Chew v. Am. Greetings Corp., 754 F.3d 632, 635 (8th Cir. 2014). In
doing so, federal courts must follow the decisions of the state’s supreme court
interpreting the forum’s law. See C.S. McCrossan Inc. v. Fed. Ins. Co., 932 F.3d
1142, 1145 (8th Cir. 2019). If a state’s supreme court has not directly spoken
on an issue, the court must predict how the state’s supreme court would
decide such issue. GEICO Cas. Co. v. Isaacson, 932 F.3d 721, 725-26 (8th Cir.
2019). In making this prediction, the court relies on “relevant precedent,
analogous decisions, considered dicta, and any other reliable data.” Thompson
v. Harrie, 59 F.4th 923, 926 (8th Cir. 2023). Here, the court is sitting in
diversity and thus South Dakota substantive law applies. See Docket 6.
DISCUSSION
This discussion section consists of three broad sub-sections. First, the
court addresses plaintiff’s and defendants’ cross-motions for summary
judgment on the issue of whether Kelley was contributorily negligent. Docket
39 at 4-14; Docket 47 at 12-17. Second, the court addresses plaintiff’s and
9

defendants’ cross-motions for summary judgment on the issue of whether
Kelley assumed the risk. Docket 39 at 14-17; Docket 47 at 5-11. And third, the
court addresses defendants’ motion for summary judgment on plaintiff’s
survival claim, defendants’ motion for summary judgment on the availability of
punitive damages under plaintiff’s wrongful death claim, plaintiff’s request to
take judicial notice of various documents, and plaintiff’s request for the court
to certify the punitive damages issue to the South Dakota Supreme Court. See
Docket 39 at 17-21; Docket 47 at 17-30; Docket 55; Docket 57. The court
addresses defendants’ motion to strike throughout the order, as the relevant
portions naturally arise during the court’s discussion of the issues. Docket 67.
I.

Contributory Negligence
“When an action sounds in negligence, 7 contributory negligence is

available to temper the defendant’s liability.” Thompson v. Mehlhaff, 698
N.W.2d 512, 524 (S.D. 2005). “Contributory negligence is negligence on the
part of a [decedent] which, when combined with the negligence of a defendant,
contributes as a legal cause in the bringing about of the injury to the
[decedent].” Kultman v. Sioux Falls Storm, 769 N.W.2d 440, 450 (S.D. 2009)
(quoting Steffen v. Schwan’s Sales Enters., Inc., 713 N.W.2d 614, 619 (S.D.
2006)). “The fact that the [decedent] may have been guilty of contributory

Plaintiff’s claims sound under a survival claim and wrongful death claim
rather than a pure negligence claim. See Docket 6. But this difference does not
matter, because the South Dakota Supreme Court has applied both the
contributory negligence and assumption of risk defenses to a wrongful death
action and survival action. See Welch v. Haase, 672 N.W.2d 689, 694-96 (S.D.
2003). Thus, the court applies these defenses to plaintiffs’ claims here.
7

10

negligence does not bar a recovery when the contributory negligence of the
[decedent] was slight in comparison with the negligence of the defendant . . . .”
SDCL § 20-9-2. But if a decedent’s negligence is more than slight compared to
defendants’ negligence, the plaintiff is barred from recovery. See Johnson v.
Armfield, 672 N.W.2d 478, 481 (S.D. 2003). If the record contains evidence to
support the issues, questions of negligence and contributory negligence are for
the jury in all but the rarest of cases. Jensen v. Menard, 907 N.W.2d 816, 820
(S.D. 2018); see also Johnson v. Matthew J. Batchelder Co., Inc., 779 N.W.2d
690, 693-94 (S.D. 2010) (explaining that questions regarding negligence and
contributory negligence are generally questions for the jury and that it is
“rare[]” for such questions to be purely legal ones).
“The question of a [decedent]’s contributory negligence is a two-step
inquiry.” Westover v. East River Elec. Power Co-op., Inc., 488 N.W.2d 892, 897
(S.D. 1992). First, the factfinder must decide whether the decedent and
defendant were negligent. See id. Second, assuming both were, the factfinder
must compare the decedent’s and defendant’s negligence. See id. Where a
decedent’s negligence is more than slight compared to the defendant’s
negligence, the plaintiff may not recover so long as the decedent’s negligence is
the proximate cause of the injury. See Johnson, 672 N.W.2d at 481.
A. Whether Kelley was Negligent
Plaintiff argues that contributory negligence is inapplicable here because
no reasonable jury could find that Kelley was negligent at all. See Docket 47 at
13-17. In support, plaintiff relies on Steffen, where the South Dakota Supreme
11

Court held that the trial judge erred in instructing the jury on contributory
negligence because the plaintiff was lawfully stopped on the road at the time a
driver rear-ended plaintiff. See 713 N.W.2d at 620-21. In Steffen, the plaintiff,
Steffen, drove on a road without shoulders when an emergency vehicle came
towards her with its lights and sirens on. See id. at 616. As required under
South Dakota law, Steffen pulled over and waited for the emergency vehicle to
pass. See id. The driver of a delivery truck, Koch, was headed the same
direction as Steffen. See id. According to Steffen, Koch was not looking forward,
but rather to the left. See id. Steffen could not move because there were two
parked cars in front of her. See id. at 618. Koch tried to stop when he noticed
Steffen, but could not and rear-ended Steffen. See id. At trial, the defendant
(Koch’s employer) asked for a contributory negligence instruction, and the trial
court gave one over Steffen’s objection. See id. at 617.
The South Dakota Supreme Court reversed, holding the trial court erred
in giving a contributory negligence instruction. Id. at 621. As is relevant here,
the Court noted that Steffen was lawfully stopped in the road due to the
emergency vehicles that had driven past her moments before. See id. at 62021. Even though Steffen had started to move her vehicle after the emergency
vehicles had passed, the Court observed that “drivers should not be held
contributorily negligent merely because they fail to resume travel fast enough
to avoid being rear-ended.” Id. at 620. Because Steffen was lawfully stopped
and defendant did not challenge her testimony that she could not move
because of the two stationary vehicles in front of her, the Court found
12

defendant failed to meet its burden to justify the giving of a contributory
negligence instruction. See id. The Court also observed that contributory
negligence “should be limited to instances where the rear ended driver stopped
both unexpectedly and unwarrantedly.” Id. at 620 n.3 (emphasis omitted).
Analogizing Kelley’s situation to that of Steffen’s, plaintiff argues the
court must grant summary judgment on finding contributory negligence
inapplicable here because “Kelley did not stop both abruptly and
unwarrantedly,” as required under Steffen. See Docket 47 at 13-14. The court
disagrees. Unlike in Steffen, where the evidence showed that Steffen justifiably
stopped in the middle of the lane (because of the emergency vehicle, the
presence of two stationary vehicles in front of her, and the fact that there was
no shoulder on the road), here, the parties have submitted a genuine dispute
on whether Kelley justifiably stopped without pulling over to the shoulder of
the interstate.
Viewed in the light most favorable to defendants, the record shows that
Kelley failed to fuel up with enough gas and failed to pull over to the side of the
road. For example, during Kelley’s phone calls with AAA, Kelley explained “I’m
driving a rental car, it told me I had backup fuel but like apparently I didn’t
and the car just like stopped.” Docket 41-1. Kelley also stated,
I’m in a rental car, and it told me that I had like this thing called
fuel reserve . . . [i]t said that my fuel was low, but then it said I had
like 20 miles of fuel for reserves so I was like alright well I’m a mile
from a gas station I should be fine, but then the car just stopped.
Docket 41-2. Furthermore, Kelley stated, “I’m in the right lane of I-29 interstate
and I just need somebody to come here quickly so I can get gas in my car and
13

not like freeze.” Id. 8 Based on Kelley’s repeated, real-time statements indicating
that her fuel was low and that she believed she ran out of fuel, a jury could
reasonably find that Kelley negligently failed to properly fuel her car and that
this failure caused her car to stop.
Even if the Equinox stopped working for reasons unrelated to running
out of gas, a reasonable jury could find that Kelley was negligent for not pulling
over to the shoulder of the road. It is undisputed that Kelley was driving on an
interstate with a speed limit of 80 miles per hour. See Docket 41-4; Docket 48
¶ 1. A reasonable jury could conclude that once Kelley’s engine stopped
(regardless of the reason), her car’s momentum would not cause it to stop
immediately. With the car still in motion, a reasonable jury could find that
Kelley was negligent for not pulling over to the shoulder of the road as the car
came to a gradual stop.

Plaintiff objects to these statements as being immaterial and as speculative.
Docket 48 ¶ 2. The court overrules both objections. First, evidence that Kelley
failed to fill up her gas tank is material because a reasonable jury could
conclude that her failure to do so was negligent, which directly relates to
defendants’ contributory negligence argument. Second, some of Kelley’s
statements here are not speculative, because she is explaining what she
personally observed (the fuel gauges in the car). Thus, at least some of these
statements alone are not speculative—Kelley did not state that her car stopped
because of low fuel, but rather she is simply stating her observations. But even
if Kelley’s explanations, in context, make the leap from stating what the fuel
gauges showed to opining that the lack of fuel caused her car to stop, the court
finds it admissible under Rule 701 because her opinion is rationally based on
her perception, it is helpful to determine why the car stopped, and does not
require technical, scientific, or other expertise. See Fed. R. Evid. 701. It is
reasonable for Kelley, as a layperson, to conclude that her car stopped because
she ran out of gas. Thus, the court overrules plaintiff’s second speculation
objection.
8

14

In short, because a reasonable jury could find Kelley either failed
to properly fuel her car, failed to pull over to the shoulder of the road, or
both, a jury could reasonably find that the position Kelley found herself
in was unwarranted. For this reason, Kelley’s situation differs from
Steffen, where it was undisputed that the driver was warranted in
stopping for an emergency vehicle. See Steffen, 713 N.W.2d at 620-21.
Furthermore, the record contains additional evidence that would allow a
jury to reasonably conclude Kelley acted negligently. It is undisputed that
Kelley did not call 911 immediately after finding herself stalled in the middle of
the right-hand lane on the interstate, but rather decided to call AAA. See
Docket 48 ¶ 8 (disputing only the relevance). A reasonable jury could find that
a person stuck in the middle of an interstate with cars flying by should call 911
immediately so that emergency personnel can escort that person to safety or at
the very least set up a few barriers to give drivers more warning of a stalled car,
and that by not doing so, the person failed to exercise reasonable care. That is
particularly so, given that the first AAA representative repeatedly asked Kelley
whether Kelley was in a safe location and mentioned multiple times the
possibility that Kelley call 911 due to her location. See Docket 41-1. If the AAA
representative sensed there was potential danger, a reasonable jury could find
that Kelley—who, unlike the AAA representative, was there to understand the
full context of her situation—was negligent in failing to call 911 immediately.
Additionally, Kelley remained in the Equinox, even though she was in the
right-hand lane of an interstate. See Docket 48 ¶ 9 (disputing only the
15

relevance). At least one individual was concerned about Kelley’s situation,
because shortly before the crash, a person other than Kelley called 911 and
reported seeing Kelley’s car parked in the interstate and that “somebody almost
hit them.” Docket 50-2. A reasonable jury could find that Kelley knew, or
should have known, of the danger she was in, that a car almost hit her, and
that she should have left the car and moved herself to the side of the road. In
short, a reasonable jury could find that Kelley acted negligently, and it would
be up to the jury to determine if that negligence was more than slight
compared to defendants. See SDCL § 20-9-2; see Johnson, 672 N.W.2d at 481.
Summary judgment in favor of plaintiff on this issue is inappropriate.
Defendants, on the other hand, argue that the undisputed evidence
shows Kelley was indeed negligent. Defendants analogize the facts of this case
to those in Myers v. Quenzer, 110 N.W.2d 840, 843 (S.D. 1961) and Haase v.
Willers Truck Serv., Inc., 34 N.W.2d 313, 317-19 (S.D. 1948), both of which the
South Dakota Supreme Court confronted car accidents and held the plaintiffs
were contributorily negligent. See Docket 39 at 6-9. In both cases, the Court
explained that a person who unnecessarily places and maintains themself in
danger is contributorily negligent. See Myers, 110 N.W.2d at 843 (“In such
circumstances [plaintiff] would be guilty of contributory negligence because she
unnecessarily placed and maintained their car in a position of danger.”);
Haase, 34 N.W.2d at 317 (“One may not unnecessarily place and maintain
oneself in such a dangerous position and then require others who failed to
discover his peril to respond in damages.”).
16

But at this summary judgment stage, neither case requires summary
judgment in favor of defendants on the issue of contributory negligence. In
Myers, the plaintiff stopped and backed up her vehicle, while on a two-lane
highway, at the bottom of a hill. See 110 N.W.2d at 841, 843. When she started
to drive forward, a pickup truck came over the hill and collided with plaintiff’s
vehicle. Id. The Supreme Court found the trial court erred when it refused to
instruct the jury on contributory negligence and stated, “[w]hether it was slight
or more than slight under our comparative negligence would be for the jury.”
Id. at 843.
Similarly in Haase, the decedent, Haase, was a tow truck driver who
attempted to pull a car out of a ditch. See Haase, 34 N.W.2d at 314-15. A
sheriff had parked his law enforcement vehicle near the car in the ditch and
turned his hazard lights to warn oncoming traffic of their presence on the road.
See id. at 315. Instead of moving his tow truck to the shoulder of the road to
work under the protection of the sheriff’s warning lights, Haase placed his tow
truck in a way that blocked the traffic’s general view of the sheriff’s hazard
lights and then crawled under the tow truck to begin working. See id. at 31517. A passing truck struck the tow truck, causing the tow truck to crush Haase
to death. See id. at 316.
The Court in Haase observed:
[Haase] took an unnecessary risk. He placed his truck so that it
obstructed a portion of the 20-foot ribbon of pavement. No reason is
or can be suggested which justified him in failing to remove his truck
at least to the 8-foot shoulder while he was putting on his chains.

17

Id. at 316. Like in Myers, there were no circumstances that required Haase to
place himself in danger—indeed, the South Dakota Supreme Court explicitly
stated the opposite, in that there was no reason why Haase put himself in the
place he did. See id.
But unlike both Myers and Haase, the record here contains a genuine
dispute about whether Kelley unnecessarily placed herself in danger. Viewed in
the light most favorable to plaintiff, a reasonable juror could find that Kelley’s
car stopped unexpectedly and that she could not move her car to the shoulder
in time. Starting with the gas, on November 15, 2022 at 10:22 p.m. (the night
before the car accident), Rodriguez purchased 13.83 gallons of gas. Docket 511; see also Docket 48 ¶ 1 (showing date of car accident as November 16, 2022).
A retired law enforcement officer, Officer Daryl Reemtsma, test drove a 2020
Chevrolet Equinox with a 1.5-liter engine to determine its gas mileage on the
trip from Gretna, Nebraska (Kelley’s starting destination) to Brookings, South
Dakota. Docket 53 ¶¶ 1-2; see also Docket 51-1 (showing Kelley purchased gas
in Gretna, Nebraska). Officer Reemtsma conducted this test starting at a gas
station located in Gretna, Nebraska, and filled the Equinox up with fuel,
documenting the mileage on the odometer, the temperature, and the wind
speed. Docket 53 ¶¶ 2-3. Officer Reemtsma then stopped at a rest stop near
Sergeant Bluff, Iowa, again recording the mileage on the odometer, the
temperature, and the wind speed. Id. ¶ 5. Officer Reemtsma then drove to
Sioux Falls, South Dakota, stopping the vehicle and documenting the mileage
on the odometer, the temperature, and the wind-speed. Id. ¶ 6. Officer
18

Reemtsma headed to Brookings, South Dakota, where he documented the
odometer mileage, temperature, and windspeed again. While in Brookings,
South Dakota, Officer Reemtsma also filled the tank with 8.253 gallons of fuel.
Id. ¶ 7.
During Officer Reemtsma’s trip, he drove the posted speed limits and
used cruise control when possible. Id. ¶ 8. Officer Reemtsma determined that
the trip from Gretna, Nebraska to Brookings, South Dakota, comprised
approximately 253 miles, and the vehicle showed that he could have travelled
191 miles further until the gas tank was empty. Id. ¶ 9. Officer Reemtsma
determined that the vehicle averaged approximately 30 miles per gallon, which
would leave at least 6 gallons of fuel remaining in the tank. Id. ¶ 10. Based on
Officer Reemtsma’s test drive, a reasonable jury could conclude that Kelley’s
car did not run out of gas and that her car stalled for a different reason.
In response to Officer Reemtsma’s affidavit, defendants argue his “test
drive” is insufficient to show a material dispute of fact about whether plaintiff’s
car ran out of gas. Docket 60 at 8-9. First, defendants argue Officer
Reemtsma’s test drive is too dissimilar from Kelley’s actual drive, given the
potential differences is weather, wind, route, speed, and the fact that Officer
Reemtsma drove a different unit (but same model and year of car) as compared
to Kelley. See id. But highlighting these differences goes to the weight the jury
should place on Officer Reemtsma’s testimony and are thus questions for the
jury. Second, defendants argue that the test drive does not present a genuine
dispute of material fact about whether Kelley ran out of gas because of the
19

statements she made moments after her car stopped running. According to
defendants, Kelley’s statement, “I just need someone to come here quickly so I
can get . . . so I can get gas,” “unequivocally” shows she ran out of gas, and
nothing about Officer Reemtsma’s test drive contradicts her statement. See id.;
see Docket 41-2. But Kelley’s statements, while relevant, are not dispositive on
whether she was out of gas, because a reasonable jury could find that she
made that statement based on her guess at the time, without complete
information, as to why her car stopped running. In other words, Kelley could
have been wrong. Furthermore, contrary to defendants’ suggestion, Kelley’s
contemporaneous statements do not definitively prove the car ran out of gas
because she stated that when her fuel light went on, the car indicated it could
go 20 more miles and that she was approximately one mile away from the gas
station when the car suddenly stopped. See Docket 41-2.
Even if the vehicle stopped because it ran out of fuel, a reasonable jury
could find that Kelley reasonably relied on the fuel light indicating the car
could drive for 20 additional miles, and that her attempt to get to the next gas
station was reasonable. See id. Thus, a reasonable jury could conclude that
even if Kelley did in fact run out of gas, Kelley reasonably believed she could
make it to the next gas station. In short, the record contains material disputes
of fact about whether Kelley acted negligently.
Next, defendants argue that even if Kelley’s car stopped for reasons
unrelated to running out of gas, Kelley negligently failed to maneuver her car to
the shoulder of the road once the car stopped accelerating. See Docket 39 at 620

7, 10. While a reasonable jury could so find, a reasonable jury could also find
that Kelley’s failure to move to the shoulder of the road was reasonable in the
circumstances. If Kelley’s car stopped running, she would have had a limited
window of time to pull off to the shoulder of the road—which is particularly
true given that Kelley’s car was stopped while going uphill. See Docket 41-3. A
reasonable jury could find that Kelley did not have sufficient time to pull over
to the shoulder or that she reasonably froze and panicked. Regardless, a
reasonable jury could find Kelley did not act negligently in failing to pull over to
the shoulder of the road.
Defendants next argue that even if Kelley did not negligently place herself
in danger originally, she was negligent for remaining in her car and not “exiting
her vehicle to the safety of the shoulder.” See Docket 60 at 10; Docket 39 at 10.
Defendants highlight that Kelley’s calls to AAA reveal that there were various
vehicles that passed her at high speeds, showing that she should have realized
she was in danger and should have exited her vehicle. See Docket 41-1; Docket
41-2; see also Docket 39 at 9. But Kelley activated the Equinox’s hazard lights
and called AAA. Docket 61 ¶ 11 (not disputing that Kelley activated hazard
lights); see also Docket 41-1 (hazard lights in background); Docket 41-2 (same).
Furthermore, a jury could find she reasonably chose not to get out of her
vehicle in the middle of the interstate because of the cars passing by at high
rates of speed (indeed, a 911 caller reported seeing somebody “almost hit”
Kelley) and because of the cold weather. See Docket 41-1; Docket 41-2; Docket

21

41-4 at 3 (showing temperature was 18 degrees Fahrenheit); Docket 50-2. 9 A
reasonable jury could find Kelley acted reasonably given her circumstances.
Thus, because a reasonable jury could find Kelley did not unnecessarily place
or maintain herself in danger, the court rejects defendants’ arguments that
Kelley was contributorily negligent as a matter of law under Myers and Haase.
For similar reasons, the court also rejects defendants’ arguments that
Kelley was contributorily negligent as a matter of law because she violated two
traffic statutes. See Docket 39 at 13-14. Defendants cite two statutes, SDCL
§ 32-25-5 and SDCL § 32-25-5.1, both of which prohibit drivers from driving
too slowly. Section 32-25-5 specifically provides that unless a driver has a
permit, such driver may not travel along on a national interstate highway at
less than forty miles per hour. See SDCL § 32-25-5. Section 32-25-5.1 provides
that “[n]o person may drive a motor vehicle at such a slow speed as to impede
the normal and reasonable movement of traffic except when reduced speed is
necessary for safe operation or in compliance with law.” SDCL § 32-25-5.1.
“Violation of a safety statute is negligence as a matter of law unless it is
legally excused.” Stensland v. Harding Cnty., 872 N.W.2d 92, 96 (S.D. 2015)
(quoting Baddou v. Hall, 756 N.W.2d 554, 559 (S.D. 2008)). Individuals

Plaintiff argues that Kelley’s decision to stay in the car is consistent with
“prevailing guidance given to motorists.” Docket 47 at 11. In support, plaintiff
cites various articles. Id. at 11 n.7. Defendants argue the court must not
consider these articles because they are inadmissible hearsay. See Docket 60
at 19 n.14. The court does not decide this issue at this stage because even
without considering the articles, the court finds a reasonable jury could find
Kelley acted reasonably when she stayed in her car.
9

22

asserting legal excuse bear the burden of proving they are in fact legally
excused. See Dartt v. Berghorst, 484 N.W.2d 891, 894 (S.D. 1992). The South
Dakota Supreme Court has recognized at least four instances when an
individual is legally excused:
(1) anything that would make compliance with the statute
impossible; (2) anything over which the driver has no control which
places his car in a position violative of the statute; (3) an emergency
not of the driver’s own making by reason of which he fails to observe
the statute; and (4) an excuse specifically provided by statute.
Albers v. Ottenbacher, 116 N.W.2d 529, 531 (S.D. 1962); see also Gaillard v.
Jim’s Water Serv., Inc., 535 F.3d 771, 776 (8th Cir. 2008) (applying Albers).
Whether an individual is legally excused is generally a question for the jury.
See, e.g., Dartt, 484 N.W.2d at 894-95 (“[T]he jury must have concluded
[defendant’s] violation was legally excused.”). For the reasons discussed above,
a jury could reasonably conclude that Kelley’s car stopped moving through no
fault of her own—i.e. that her car simply stopped working—making her
compliance with the two South Dakota speed statutes “impossible” or
indicating she “ha[d] no control” over her car’s positioning. See Albers, 116
N.W.2d at 531. Similarly, jury could also reasonably find Kelley faced an
emergency “not of [her] own making.” Id. Either way, a jury could reasonably
conclude Kelley was legally excused. The court rejects defendants’ arguments
to the contrary. 10

Defendants argue that plaintiff has waived its opportunity to respond to
defendants’ original arguments regarding whether Kelley was legally excused
from violating these two safety statutes. See Docket 68 at 2-4 (citing Docket 39
at 13-14). Though defendants correctly note that plaintiff did not expressly
10

23

Defendants also highlight Kelley’s failure to call 911 as another example
of her alleged negligence. See Docket 39 at 6. But Kelley called AAA
immediately, which a jury could find as a reasonable step to take. See Docket
48 ¶ 7; Docket 41-1; Docket 41-2. A reasonable jury could find Kelley was not
negligent for not calling 911.
Defendants next argue that Kelley was negligent for not bringing
appropriate winter attire in the car. See Docket 39 at 6. Her failure to have
appropriate winter clothing, defendants argue, matters because “[i]f [Kelley] did
not have a coat, she was negligent for not dressing in a manner that would
allow her to exit her vehicle.” Docket 60 at 10. 11 But according to Kelley’s
husband, after the crash, he received Kelley’s personal items from the car,
which included Kelley’s winter coat. Docket 51 ¶ 8. A reasonable jury could
find that Kelley did in fact have a winter coat in the car.

reference defendants’ negligence per se arguments, plaintiff did repeatedly
argue that Kelley was not at fault for the position in which she found herself.
See Docket 47 at 12-17. The court exercises its discretion in generously
construing plaintiff’s response in Docket 47. Still, in doing so, the court does
not consider plaintiff’s arguments in pages 14-17 of Docket 63 with respect to
negligence per se, and thus the court denies as moot defendants’ request to
strike such arguments (plaintiff’s brief in pages 14-17 of Docket 63).
Defendants alternatively argue that even if Kelley did have a coat, she was
negligent for not wearing it and then exiting her car. Docket 60 at 10. But for
the reasons above, the court finds that a reasonable jury could conclude Kelley
acted reasonably in staying in her car given that she activated her hazard
lights and that she could also place herself at risk by exiting her car while on
an interstate. See Docket 48 ¶ 9 (not disputing that Kelley stayed in car);
Docket 60 ¶¶ 7 (not disputing Kelley’s car was in right hand lane of I-29); 11
(not disputing that Kelley activated hazard lights).
11

24

Defendants argue that Kelley’s husband’s statement is not sufficient to
save plaintiff for two reasons. First, defendants argue that Kelley’s husband’s
affidavit is inadmissible hearsay. Docket 60 at 10. But the court may consider
this evidence so long as it could be presented in an admissible form. See Smith
v. Kilgore, 926 F.3d 479, 485 (8th Cir. 2019) (“[T]he standard is not whether
the evidence at the summary judgment stage would be admissible at trial—it is
whether it could be presented at trial in an admissible form.” (quoting Gannon
Int’l, Ltd. v. Blocker, 684 F.3d 785, 793 (8th Cir. 2012)). Kelley’s husband could
testify at trial that he received Kelley’s coat, and this testimony would be
admissible. Thus, the court may consider Kelley’s husband’s affidavit at the
summary judgment stage.
Second, defendants also challenge the accuracy of Kelley’s husband’s
statement. In support, defendants note that Kelley’s husband claims to have
found gas receipts and Kelley’s coat, but only took a picture of the gas receipt.
See Docket 60 at 10. Thus, defendants suggest that Kelley’s husband did not
actually recover a coat because if he did, he would have taken a picture of it.
See id. This argument goes to the credibility of Kelley’s husband’s assertions
and thus is for the jury to decide. The court rejects defendants’ argument
regarding Kelley’s coat.
Next, defendants’ compare this instant case with Lindolm v. BMW of N.
Am., LLC, 202 F. Supp. 3d 1082, 1100 (D.S.D. 2016), a case that granted
summary judgment to the defendant with respect to the plaintiff’s negligence
claims because the decedent was contributorily negligent as a matter of law.
25

See Docket 39 at 5. In Lindolm, the decedent, Alex, used a jack to hold up a car
while Alex went underneath the car to perform work, even though the jack was
designed only to change or replace tires and even though the jack came with
warnings (both in a manual and on the jack itself) explicitly stating not to rely
on a jack to hold up a car while underneath the car to perform work. See
Lindolm, 202 F. Supp. 3d at 1096. In finding Alex misused the product and was
contributorily negligent, the court stressed that Alex ignored multiple express
warnings. See id. at 1096-98. Defendants argue that “[l]ike the decedent in
Lindolm, [Kelley]’s negligence was primary and allowed for the circumstances
causing her death.” Docket 39 at 5.
But Lindolm is distinguishable from this instant case. Alex and Kelley
faced quite different circumstances. In Lindolm, there was no evidence that
Alex faced a stressful situation where time was of the essence. Instead, Alex
ignored several warnings and chose to improperly use a jack without any other
apparent reason to do so and without any apparent attending stressors. See
Lindolm, 202 F. Supp. 3d at 1096-98. For example, Alex was not attempting to
rely on the jack to fix a car because he needed to fix it immediately or because
he had no other access to a more appropriate tool. See id. But here, Kelley was
in the middle of an interstate with cars passing by having to make a quick
decision on what to do. See Docket 48 ¶ 4 (not disputing that Kelley stopped in
the right driving lane); see also Docket 41-1 (AAA phone recording revealing
cars driving by); Docket 41-2 (same). As explained above, a reasonable jury
could find that Kelley faced her circumstances through no fault of her own and
26

that she made reasonable choices given such circumstances. This case is not
one of the “rare” cases in which the court should decide the issue of
contributory negligence rather than a jury. See Jensen, 907 N.W.2d at 820.
Lindolm does not require a different result.
Finally, defendants’ arguments ignore how Kelley’s (alleged) negligence
compares to VanIperen’s actions. See generally Docket 39 (no comparison);
Docket 61 (same). Instead, defendants argue only that Kelley’s (alleged)
negligence was more than slight. See Docket 39 at 5-14; see also Docket 61 (no
mention of comparison requirement). But this articulation is misleading:
defendants are only entitled to contributory negligence if the jury also finds
that Kelley’s negligence was more than slight compared to VanIperen’s
negligence. SDCL § 20-9-2; see Johnson, 672 N.W.2d at 481. Under this
comparison scheme, the greater a defendant’s negligence, the greater leeway
the law gives the plaintiff. See SDCL § 20-9-2; Johnson, 672 N.W.2d at 481.
Here, a reasonable jury could find that Kelley’s negligence was slight
compared to VanIperen because a reasonable jury could find VanIperen was
negligent and that his negligence was significant. In the minutes before the
collision, VanIperen’s truck swerved multiple times over the fog line in the
right-hand lane. See Docket 41-3; see also Docket 61 ¶ 16 (only disputing
relevance). A jury could also reasonably find that the weather outside and the
driving conditions posed no external reason for the crash because it was
sunny, clear day and the roads were not icy. See Docket 41-3. Furthermore,
VanIperen’s video camera footage shows that he had plenty of time to react if
27

he had looked ahead at the road and observed Kelley’s car. See id. But
VanIperen made no attempts to stop or brake his truck, or to swerve in the
moments leading to the crash. See id. Instead, a jury could reasonably find
that VanIperen was completely distracted because he was playing a game on
his phone while driving a truck full of oil. See id.; Docket 61 ¶ 15 (not disputing
VanIperen’s truck was loaded with fuel); ¶ 23 (only disputing relevance about
phone usage). Based on these factors, a jury could reasonably find that Kelley’s
negligence—if any—was slight compared to VanIperen’s negligence. Summary
judgment in favor of defendants on this issue is inappropriate here.
In short, the record contains many factual disputes that the jury must
resolve, which all bear on these central questions: was Kelley contributorily
negligent, and if so, was it more than slight compared to VanIperen’s? Because
the record contains factual disputes directly bearing on these questions, the
court denies plaintiff’s partial motion for summary judgment and defendants’
motion for summary judgment with respect to whether Kelley was
contributorily negligent. 12
As part of the contributory negligence argument, defendants also move to
strike Docket 64-2 because plaintiff introduced it only in his reply to his
motion for partial summary judgment, even though he could have referenced it
in his initial motion for summary judgment or his response to defendants’
motion for summary judgment. Docket 68 at 5-6. Even if plaintiff’s reliance on
Docket 64-2 in his reply brief to his motion for partial summary judgment is
impermissible, plaintiff only cites Docket 64-2 twice, both times for factual
propositions that are largely already in the record. See Docket 63 at 2 (citing
Docket 64-2 for proposition that VanIperen was playing video games on phone
for at least 20 minutes leading up to crash), 10 (citing Docket 64-2 for
proposition that Kelley turned on her hazards). The court does not rely on
Docket 64-2 in reaching any of its conclusions, so the court denies defendants’
motion to strike Docket 64-2 as moot.
12

28

II.

Assumption of the Risk
A plaintiff who assumes the risk is precluded from recovering. See

Westover v. East River Elec. Power Co-op., Inc., 488 N.W.2d 892, 897 (S.D.
1992). Assumption of the risk requires that the person “(1) had actual or
constructive knowledge of the risk; (2) appreciated its character; and (3)
voluntarily accepted the risk, with the time, knowledge, and experience to
make an intelligent choice.” Jensen, 907 N.W.2d at 820 (quoting Duda v. Phatty
McGees, Inc., 758 N.W.2d 754, 758 (S.D. 2008)). Defendants bear the burden of
proving assumption of risk, Burhenn v. Dennis Supply Co., 685 N.W.2d 778,
786 (S.D. 2004), and “[t]he failure to establish any one of the three elements
negates the defense.” Stone v. Von Eye Farms, 741 N.W.2d 767, 772 (S.D.
2007). Just like negligence and contributory negligence, assumption-of-risk
cases should generally go to a jury, because cases involving assumption-of-risk
that involve purely legal questions are “rare.” See Schott v. S.D. Wheat Growers
Ass’n, 906 N.W.2d 359, 364 (S.D. 2017).
To prove the first two requirements, defendants must prove that Kelley
“not only kn[ew] of the facts that create[d] the danger, but [she] must [have]
comprehend[ed] and appreciate[d] the danger itself.” Id. at 362 (quoting Duda,
758 N.W.2d at 758)). In most situations, this requirement is subjective: Kelley
herself must have actually known about the facts creating the danger and
known of the danger she faced. See Jensen, 907 N.W.2d at 822. But contrary to
plaintiff’s suggestion, South Dakota law recognizes that “[t]here are some risks
as to which no adult will be believed if [she] says that [she] did not know or
29

understand them.” Schott, 906 N.W.2d at 362-63. (quoting Restatement
(Second) of Torts § 496D cmt. c); see Docket 63 at 21 (arguing that “Kelley’s
subjective belief is controlling under the law”). Thus, South Dakota law
recognizes that a person may have constructive knowledge of the risk, in which
case “the knowledge and appreciation-of-danger elements are not purely
subjective questions[.]” Id. at 362. “A person is deemed to have appreciated the
risk ‘if it is the type of risk that no adult of average intelligence can deny.’ ”
Duda, 758 N.W.2d at 758 (quoting Ray v. Downes, 576 N.W.2d 896, 900 (S.D.
1998)). Ultimately, whether an individual knew or should have known of risks
are ordinarily questions for the jury, and “may be resolved by the court only
where ‘reasonable [people] would not differ on the question [of] whether the
[plaintiff] assumed the risk.’ ” Id. (quoting Myers v. Lennox Co-op Ass’n, 307
N.W.2d 863, 864-65 (S.D. 1981)).
A threshold issue the court must address is how to properly characterize
the risk that Kelley may or may not have assumed. Defendants frame the risk
broadly, arguing the risk involved is that “stopped vehicles on highways get
rear-ended.” Docket 60 at 18; see also Docket 39 at 14-17. On the other side of
the spectrum, plaintiff frames the risk much more narrowly, arguing the risk
was that “VanIperen was playing a game on his cell phone and failing to
maintain a proper lookout while driving a Mack truck loaded with 50,000
pounds of fuel.” Docket 47 at 8.
The South Dakota Supreme Court’s decision in Ray v. Downes explains
why neither articulation is fully accurate. In Ray, the Court dealt with the
30

issue of whether the plaintiff, Ray, had assumed the risk of an injury that was
caused by the defendant, Waldner. See 576 N.W.2d at 899-90. There, Ray had
agreed with Waldner to help Waldner harvest soybeans and corn. See id. at
897. As part of harvesting, Waldner typically used a “swing-type auger” to
transport the grain from an 18-wheeled semi-tractor/trailer to bins. See id.
One day, the ground was too high to put the auger under the trailer, so Ray
scraped the ground to make room for the auger. See id. Ray then volunteered
to help Waldner place the auger under the trailer as Waldner drove the trailer
forward. Id. The two agreed that Ray would use hand signals and then “holler”
for Waldner to stop when the auger was in place. See id. After Ray positioned
the auger, he hollered for Waldner to stop. See id. The record contained a
dispute over whether Ray also signaled to Waldner. See id. Regardless, Waldner
did not stop the trailer, and as a result, the trailer ran over Ray’s leg. See id.
In his deposition, Ray admitted that he knew that the job was risky and
that it was risky for him to be so close to the rear wheels of the trailer. See id.
at 899. Ray admitted seeing the trailer continue moving forward and that he
knew if it did not stop, it would run over his leg. See id. Ray also admitted to
knowing that he was taking the risk of injuring his leg and that he voluntarily
put himself in that position. See id. Reviewing this testimony, the circuit court
granted summary judgment in favor of Waldner, finding that there could be no
dispute over whether the first two elements of assumption of risk were
satisfied, and that Ray also acted voluntarily and had other reasonable
alternatives. See id. at 898-99.
31

But the Supreme Court reversed. Crucially, the Court explained that
while “ ‘[r]isk is intrinsic to some acts’ . . . this intrinsic risk is not unlimited.”
Id. at 899 (quoting Goepfert v. Filler, 563 N.W.2d 140, 143 (S.D. 1997)). The
Court elaborated:
Certainly, Ray put himself in harm’s way by standing in a position
to be run over. He frankly admitted as much. Nonetheless, he did
not consent to relieve the driver of his subsequent duty to act with
reasonable care. In the words of Prosser, ‘This is a distinction which
has baffled a great many law students, some judges, and unhappily
a few very learned legal writers.’ Prosser & Keeton, The Law of Torts
§ 68, at 485.
Id. The Court further emphasized that nothing in the record suggested that Ray
anticipated Waldner would disregard Ray’s signals when moving the truck. Id.
at 900. Crucially, the Court stated, “Ray’s awareness of danger was not
consent to relieve Waldner of his duty of care. Not every acceptance of known
danger may reasonably be interpreted as evidence of such consent.” Id.
Instead, the Court made clear that “[a]lthough one may assume the risk of the
negligence of another if he is fully informed of such negligence, one is not, under
the doctrine of assumption of risk, bound to anticipate the negligent conduct of
others.” Id. (emphasis added). As a result, the Court reversed the circuit court’s
decision to grant summary judgment in favor of Waldner. See id.
In reaching this conclusion, the Court then quoted from Prosser’s Law of
Torts, and in doing so included a strikingly similar hypothetical to the situation
here:
It is here that there is the greatest misapprehension and confusion
as to assumption of risk, and its most frequent misapplication. It is
not true that in any case where the plaintiff voluntarily encounters
32

a known danger he necessarily consents to any future negligence of
the defendant. A pedestrian who walks across the street in the
middle of a block, through a stream of traffic traveling at excessive
speed, cannot by any stretch of the imagination be found to consent
that the drivers shall not use care to watch for him and avoid
running him down. On the contrary, he is insisting that they shall.
This is contributory negligence pure and simple; it is not assumption
of the risk. And if A leaves an automobile stopped at night on the
traveled portion of the highway, and his passenger remains sitting
in it, it can readily be found that there is consent to the prior
negligence of A, whose control over the risk has terminated, but not
to the subsequent negligence of B, who thereafter runs into the car
from the rear.
Id. at 899-900.
The South Dakota Supreme Court’s discussion in Ray teaches a key
lesson about how to appropriately define the “risk” an individual has assumed
for purposes of the assumption of risk defense: the relevant inquiry is whether
Kelley was aware of a risk that VanIperen would negligently hit Kelley. See Ray,
576 N.W.2d at 899-900. Consider all three situations in Ray. Starting with the
actual facts of Ray, Ray admitted that he knew there was a risk that the trailer
could run over him and that he could get seriously injured. See id. at 899. Yet,
he had no reason to suspect that Waldner would act negligently by ignoring
Ray’s signals (after having just discussed with Ray the plan to have Ray signal
to Waldner to stop the trailer). See id. at 900. Without this specific knowledge
that Waldner would ignore Ray (either actual or constructive), Ray could not
have assumed the risk of Waldner’s negligence. See id. The same is true with
the pedestrian hypothetical: the pedestrian who crosses the road while it was
full of traffic has surely entered a dangerous position and knows (or should
know) there is a real risk of being hit. But knowing the risk of being hit is not
33

dispositive because the key inquiry is whether the pedestrian had any
knowledge (actual or constructive) of the specific risk that drivers would act
negligently and fail to attempt to avoid him. See id. If not, the pedestrian did
not assume the risk of being negligently hit by a driver. Id. And finally, the
passenger in the stationary car parked in the middle of the road at night surely
knows or should know that he is in danger of being hit. But again, the
passenger did not assume the risk of being hit by B based off B’s negligence if
the passenger had no actual or constructive knowledge of the risk that B would
act negligently.
Applying Ray’s lessons and viewing the record in the light most favorable
to defendants, no reasonable jury could find that Kelley assumed the specific
risk that VanIperen would negligently hit her. To be sure, viewed in the light
most favorable to defendants, Kelley knew (or should have known) that she was
in a dangerous location when parked in the middle of an interstate. But as Ray
teaches, Kelley’s knowledge of the general risk of her being hit is not
dispositive. See Ray, 576 N.W.2d at 899-900. Rather, what matters is whether
Kelley was fully informed (or should have known) that VanIperen specifically
would act negligently. Just as there was nothing in the record to suggest Ray
knew or should have known that Waldner would disregard Ray’s signals, so too
there is nothing in the record to suggest that Kelley knew or should have
known that VanIperen would not be paying attention to the road. Specifically,
at the time Kelley chose to remain in her car in the middle of the right-hand
lane, Kelley had no reason to know that VanIperen was driving while
34

distracted, nor did she have any reason to know he had swerved multiple times
minutes before the collision. Docket 61 ¶¶ 16 (only disputing relevance), 21
(same); Docket 41-3. Thus, although possibly contributorily negligent as
explained above, Kelley could not have assumed the risk in this case because
there are no facts suggesting Kelley had the requisite knowledge (either actual
or constructive) that VanIperen was acting negligently.
Importantly, the scope of the risk, as plaintiff argues, is not so narrow
that Kelley must have known or should have known that VanIperen was
playing Balls Crush – Bricks Breaker while driving a fuel truck. See Docket 47
at 8. Just because Kelley had no actual or constructive knowledge of the
specific app VanIperen had open, or even that VanIperen was on his phone,
does not necessarily mean that she did not assume the risk of VanIperen
acting negligently. For example, if Kelley knew VanIperen was driving while
closing his eyes and yet still chose to remain in her car, she would have
assumed the risk that VanIperen was acting negligently and would hit her. The
key is whether Kelley knew or should have known that VanIperen was acting
negligently, and yet still assumed that risk. Because the record contains no
evidence that Kelley knew or should have known that VanIperen was acting
negligently in any way, this case is one in which she cannot have assumed the
risk as a matter of law. See Schott, 906 N.W.2d at 364.
Defendants resist this conclusion, arguing the relevant risk is the risk
that Kelley would be hit while parked in the middle of an interstate. See Docket
60 at 16-17; Docket 39 at 14-17. In support of their view, defendants cite
35

language from Sheard v. Hattum, in which the South Dakota Supreme Court
stated “ ‘[t]ypical examples of risks within every adult’s constructive knowledge
are that ‘one can burn from fire, drown in water, or fall from heights.’ ” 965
N.W.2d 134, 147 (S.D. 2021); Docket 60 at 16-17. The typical examples in
Sheard, defendants reason, are all general risks, meaning that the general risk
of being hit while stopped on the highway is the correct framing of the risk at
issue. See Docket 60 at 16-17.
But Sheard’s discussion regarding the “typical” risks associated with
various activities answers a different question than the one here. The question
here is how to appropriately define the risk at issue. Sheard’s discussion
answers whether a given risk is sufficiently obvious to a plaintiff such that the
plaintiff had constructive knowledge of such risk. See Sheard, 965 N.W.2d at
146-47. Nothing about Sheard evinces any intent to collapse these two
separate inquiries, nor does it indicate any intent to overrule Ray. And Ray
answers the relevant question here: what is the risk that Kelley may have
assumed in the first place? Thus, the court rejects defendants’ argument that
the relevant risk Kelley faced was the risk of being hit from behind because this
risk is too broad.
The court makes one final note. It is true that Ray involved a slightly
different procedural posture as compared to the one in this instant case. In
Ray, the circuit court granted summary judgment in favor the defendant, and
the Supreme Court reversed. See Ray, 576 N.W.2d at 899-90. In doing so, the
Court remanded the case back to the circuit court, and specifically the Court
36

“preserve[d] the opportunity for Waldner . . . to pursue traditional tort defenses
such as assumption of the risk at trial.” Id. at 890. This court acknowledges
that its ruling goes one step further than Ray: not only does the court here
reject defendants’ arguments for summary judgment on the issue of
assumption of the risk, but the court also grants summary judgment on this
same issue in favor of plaintiff.
But Ray’s decision to allow Waldner to present an assumption of risk
defense at re-trial stems from the factual disputes at issue in the case. In Ray,
a reasonable jury could find that Ray did indeed assume the risk that Waldner
would specifically run over Ray even with the agreement the two had made.
Specifically, although it was undisputed that Ray “hollered” for Waldner to
stop, the record also contained evidence that the surrounding machinery was
loud and that at least some of the windows to Waldner’s trailer were rolled up.
See id. at 897, 897 n.1. And viewing the record in the light most favorable to
Waldner, a reasonable jury could find that Ray knew, or should have known,
that it may be difficult for Waldner to hear Ray’s hollering because Ray knew of
the surrounding noise and that some of Waldner’s windows were up. See id.
Relatedly, the record contained a factual dispute over whether Ray actually
signaled to Waldner for Waldner to stop the trailer. See id. at 897 (“Either Ray
did not signal or Waldner did not see Ray’s signals . . . .”). Thus, a jury could
reasonably find Ray did in fact assume the risk because it could reasonably
find Ray had specific knowledge that Waldner would not hear Ray and that Ray
did not actually signal to Waldner for Waldner to stop the trailer. See id. at
37

897, 897 n.1. In short, even though Ray permitted Waldner during the re-trial
to raise an assumption of the risk defense, it did so because the facts of the
case warranted such potential defense. Nothing about Ray forecloses summary
judgment in favor of a plaintiff on the issue of assumption of the risk in an
appropriate case.
And here, Kelley’s situation is one such case. Unlike the record in Ray,
where a jury could find Ray knew Waldner would ignore Ray yet still chose to
help Waldner, the record here contains no evidence that Kelley knew or had
reason to know that VanIperen specifically would hit her. There is nothing in
the record to indicate Kelley was aware that VanIperen was on his phone,
driving distractedly, or anything else to indicate why she should get out of the
car specifically to avoid VanIperen’s negligence. This case would be different if,
for example, Kelley had learned from a source that VanIperen was on his phone
heading her way and that she nevertheless remained in the car. In that case, a
jury could reasonably find that she assumed the risk that VanIperen would hit
her. But here, there is no evidence that Kelley had any indication of
VanIperen’s negligence. Based on the present record, no reasonable jury could
find that Kelley assumed the risk of VanIperen running into her. The court
grants summary judgment in favor of plaintiff on whether Kelley assumed the
risk and denies defendants’ request for summary judgment on the same.
III.

Survival Claim, Wrongful Death, Punitive Damages, Certification,
and Judicial Notice
Having found summary judgment inappropriate on defendants’

affirmative defenses, the court turns to whether summary judgment is
38

appropriate on any of plaintiffs’ claims for other reasons. Defendants move for
summary judgment on plaintiff’s survival claim. See Docket 39 at 17-18.
Defendants also move for summary judgment on plaintiff’s request for punitive
damages. See id. at 19-22. In response, plaintiff argues that summary
judgment is inappropriate on Kelley’s survival claim because discovery is not
complete. See Docket 47 at 17-18. With respect to punitive damages, plaintiff
argues summary judgment is inappropriate for a variety of reasons, including
that (1) punitive damages are available in plaintiff’s survival claim; (2) the court
should certify to the South Dakota Supreme Court the question of whether
punitive damages are available on plaintiff’s (and others’) wrongful death suit;
and (3) if the court declines to certify the issue, punitive damages are available
in wrongful death suits as a matter of statutory interpretation. See Docket 47
at 18-30; Docket 57. The court addresses these arguments in turn. Before
doing so, the court briefly recounts the legal background for survival and
wrongful death actions under South Dakota law.
South Dakota law authorizes two related, but distinct, causes of action
for situations in which an individual dies. One cause of action is a survival
claim under SDCL § 15-4-1. Section 15-4-1 provides that “[a]ll causes of action
shall survive and be brought, notwithstanding the death of the person entitled
or liable to the same.” A survival claim under SDCL § 15-4-1 allows for a
decedent to recover injuries for which she herself would have been able to
recover, but for her death. See SDCL § 15-4-1; Yellow Horse v. Pennington
Cnty, 225 F.3d 923, 926 n.3 (8th Cir. 2000). In contrast, a wrongful death
39

claim “allow[s] for recovery of damages where a defendant caused ‘the death or
injury of a person ... by a wrongful act, neglect, or default.’ ” Lindholm, 202
F.Supp.3d 1082, 1100 (D.S.D. 2016) (quoting SDCL § 21–5–1)). The Eighth
Circuit has succinctly explained the differences between these two statutes:
In South Dakota, a wrongful death cause of action is brought in the
name of the decedent’s personal representative and seeks
compensation for the decedent’s next of kin for their pecuniary
injury, rather than for an injury to the decedent himself. In contrast,
a survival action is the decedent’s own personal cause of action,
which does not abate at decedent’s death, but is brought by a
representative seeking damages the decedent could have obtained
for injuries had he survived.
Yellow Horse, 225 F.3d at 926 n.3.
A survival claim under SDCL § 15-4-1 allows a plaintiff to recover
punitive damages. See SDCL § 21-3-2; Ammann v. Massey-Ferguson, Ltd., 933
F. Supp. 840, 842 (D.S.D. 1996). The parties dispute whether punitive
damages are available under a wrongful death claim. See Docket 39 at 19-21;
Docket 47 at 18-29.
A. Survival Claim
Under South Dakota law, “there can be no recovery for pain and
suffering while an injured person is unconscious and damages are only
allowable for such time as the injured person is conscious.” Plank v. Heirigs,
156 N.W.2d 193, 200 (S.D. 1968); see also Sander v. Geib, Elston, Frost Pro.
Ass’n, 506 N.W.2d 107, 127 (S.D. 1993) (citing Plank and interpreting Plank’s
discussion in the context of the survival statute SDCL § 15-4-1); Krumm v.
Feuerhelm, 298 N.W.2d 184, 189 (S.D. 1980) (finding a jury instruction

40

explaining “[w]hen an injured person is killed instantly, or dies without
regaining consciousness, damages cannot be awarded for pain and suffering”
to be proper). Thus, “[w]hen an injured person is killed instantly . . . damages
cannot be awarded for pain and suffering.” Plank, 156 N.W.2d at 200-01. This
conclusion also aligns with the majority of states. See Restatement (Second) of
Torts, § 926 (1979) (explaining that in cases where the defendant has caused
the decedent’s death, most states do not allow recovery under a survival
statute “when death immediately results from the tort without an appreciable
period of suffering intervening[.]”). So the issue here is whether the record
contains a genuine dispute of material fact regarding whether Kelley died
instantly upon the crash.
Defendants argue that plaintiff’s survival claim must fail because the
record contains no evidence to suggest Kelley suffered any personal injury prior
to dying. See Docket 39 at 17-18. The court agrees. Here, evidence in the
record suggests Kelley died instantly. First, Kelley’s calls with the AAA agents
suggest she did not experience pre-impact terror or any extreme emotional
distress moments before the crash. See Docket 41-1; Docket 41-2. In fact,
when talking with the first AAA agent in the minutes leading up to the
collision, Kelley stated, “Um. I’m not really sure if I’m in a safe location. I’m just
like . . . I’m just on the interstate like in the first lane.” Docket 42-1. A few
minutes later with a different AAA agent, Kelley stated, “Like I’m kind of in a
safe location, I’m in the right lane of I-29 interstate.” Docket 41-2. Even viewed
in the light most favorable to plaintiff, Kelley’s statements to AAA agents in the
41

minutes leading up to the crash indicate Kelley felt ambivalent about whether
she was safe in the car and do not show she felt terror or any extreme
emotional distress right before the crash.
Furthermore, at the time VanIperen crashed into Kelley’s car, Kelley was
still talking to an AAA agent. See Docket 41-2 (faint crash sound in
background). At no point during this call does the call include any evidence of
Kelley screaming in pain or stating that she felt she was in immediate danger.
See id. To the contrary, the AAA agent attempted to ask Kelley a series of
questions, such as “You say you need gas? You want us to come bring you gas?
Hello? Hello?”, to which Kelley did not respond. See id. This contemporaneous
evidence also supports the conclusion that Kelley did not experience any pain,
because if she did, she would have screamed, and the AAA agent would have
panicked.
Second, Kelley’s death certificate also supports this conclusion. See
Docket 39 at 18. Specifically, under the section of “cause of death,” the
certificate states, “head, neck and chest trauma” and “motor vehicle accident.”
Docket 41-7 at 2. Under the section labeled “interval:” the certificate states
“instant.” Id.
Third, while alone not dispositive, the video of VanIperen’s crash shows
that VanIperen slammed into Kelley’s car at a very high rate of speed. See
Docket 41-3. The video shows Kelley’s car snap in half immediately. Id. The
picture of Kelley’s car after the crash confirms the awful nature of this

42

accident. See Docket 50-3. These items support a finding that Kelley died
instantly.
Taking the AAA calls, death certificate, and video and photo of Kelley’s
car, the record suggests Kelley died immediately after VanIperen ran into her
car. The court finds that defendants have reached their initial burden in
pointing to sufficient evidence in the record to prove Kelley died instantly,
which, if undisputed, entitles defendants to summary judgment on Kelley’s
survival claim. 13 See Celotex, 477 U.S. at 322-23; Plank, 156 N.W.2d at 20001. Because defendants met their initial burden, plaintiff now must
demonstrate specific facts in the record that create a genuine dispute for trial.
See Mosley, 415 F.3d at 910.
In plaintiff’s initial response, plaintiff did not point to any specific facts in
the record to dispute that Kelley died instantly. Instead, plaintiff argued that
the court should delay summary judgment until plaintiff has a chance to
obtain additional discovery under Civil Rule of Procedure 56(d). See Docket 47
at 17. Later, in a reply brief to defendant’s response to plaintiff’s motion for
summary judgment, plaintiff referenced and attached his expert’s—Dr.

The court need not decide whether a plaintiff is entitled to other kinds of
injuries in his survival claim—apart from the decedent’s physical or emotional
pain and suffering—such as funeral costs or loss to the car, because plaintiff
has submitted no evidence that the decedent’s estate had to pay any funeral
expenses and it is undisputed that Kelley did not own the Equinox. See Docket
48 ¶ 14 (only disputing the relevance that plaintiff rented the Equinox from
Enterprise Rent-A-Car Company – Midwest, LLC); Cf. Rubeck v. Huffman, 374
N.E.2d 411, 413-14 (Ohio 1978) (noting that there was no evidence that
decedent suffered property loss in fatal car crash because there was no
evidence that decedent owned the car).
13

43

Ziejewski’s—report. See Docket 63 at 23. But neither of these attempts are
persuasive, and the court grants summary judgment in favor of defendants on
plaintiff’s survival claim.
The court begins with Rule 56(d). Rule 56(d) provides:
When Facts Are Unavailable to the Nonmovant. If a nonmovant shows
by affidavit or declaration that, for specified reasons, it cannot present
facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take
discovery; or
(3) issue any other appropriate order.
Fed. R. Civ. P. 56(d). The purpose of this rule is to prevent a court from unfairly
ruling on a motion when a party has not yet had an opportunity to discover
additional evidence that would allow the moving party’s claim to survive. See
Johnson v. Moody, 903 F.3d 766, 772 (8th Cir. 2018). To succeed on a Rule
56(d) motion, plaintiff must show: “(1) that [he] ha[s] set forth in affidavit form
the specific facts that [he] hope[s] to elicit from further discovery, (2) that the
facts sought exist, and (3) that these sought-after facts are ‘essential’ to resist
the summary judgment motion.” Id. (quoting Toben v. Bridgestone Retail
Operations, LLC, 751 F.3d 888, 895 (8th Cir. 2014)). “Rule 56(d) does not
condone a fishing expedition where a plaintiff merely hopes to uncover” some
favorable evidence. Id. And “[i]f a party fails to carry its burden, ‘postponement
of a ruling on a motion for summary judgment is unjustified.’ ” Marlow v. City
of Clarendon, 78 F.4th 410, 416 (8th Cir. 2023) (quoting Stanback v. Best
Diversified Prods., Inc., 180 F.3d 903, 911 (8th Cir. 1999)).
44

A party cannot meet its burden by making “unspecific assertion[s]” and
by “not explain[ing] how the evidence he sought was relevant ‘to rebut [the
defendants’] showing of the absence of a genuine issue of fact.’ ” Id. (quoting
Ray v. Am. Airlines, Inc., 609 F.3d 917, 923 (8th Cir. 2010)) (first and third
alterations in original). For example, in Marlow, a case where a police officer
sued the City of Clarendon for illegally retaliating against him by terminating
him, the Eighth Circuit found the district court properly refused to extend
discovery under Rule 56(d). See id. at 413, 417. There, the officer requested
Rule 56(d) relief, and in support, merely stated that he “obviously need[ed] the
ability to cross examine [the Chief] about the termination meeting” and that he
“need[ed] the deposition of [another witness] who interviewed [the Chief].” Id. at
417. Observing that these explanations were “unspecific assertion[s]” and that
the officer failed to explain how this evidence was relevant to dispute
defendants’ showing of the absence of a genuine issue of fact, the Eighth
Circuit found the district court did not abuse its discretion in denying the
officer’s motion for further discovery. See id.
Here, with respect to the issue of when Kelley died, plaintiff filed a Rule
56(d) affidavit that states the following:
Defendants assert Kelley Rodriguez died immediately upon impact.
No autopsy was conducted. No photographs were taken of Kelley’s
body following the collision. No discovery has occurred on this issue.
Because of this, it is unknown at this time whether Kelley Rodriguez
survived for a time following the collision. Defendants’ motion
seeking judgment as a matter of law on punitive damages is
premature.
Docket 54 ¶ 4. Plaintiff’s Rule 56(d) affidavit also asserts:
45

No depositions have been taken in this case . . . . [VanIperen’s]
deposition is necessary to issues of liability, punitive damages, and
Defendants’ affirmative defenses. Plaintiff has engaged a mechanical
engineering expert to inspect the 2020 Chevrolet Equinox . . . [i]t is
unknown at this time what the full nature and extent of the experts’
respective opinions will be.
Id. ¶¶ 7-9. Based on these submissions, plaintiff’s Rule 56(d) affidavit falls
short. Generously construed, the affidavit meets the first requirement— that
plaintiff has set forth in affidavit form the specific facts that he hopes to elicit
from further discovery—because it asserts plaintiff hopes to elicit facts through
further discovery that show Kelley did not die immediately. See id. ¶¶ 4, 7-9;
Moody, 903 F.3d at 772.
But plaintiff’s affidavit fails to demonstrate that additional facts
surrounding Kelley’s death “exist,” as is required under Moody. See Moody, 903
F.3d at 772. In fact, plaintiff’s affidavit suggests the opposite. By stating that
“[n]o autopsy was conducted” and that “[n]o photographs were taken of Kelley’s
body following the collision,” plaintiff acknowledges potential sources of
information that could contradict whether Kelley died immediately do not exist
in this case. See Docket 54 ¶ 4. Plaintiff also gestures to VanIperen’s deposition
testimony, but plaintiff does not state which facts he expects to arise from
VanIperen’s testimony that would speak to the specific issue of whether Kelley
died immediately, mirroring the defect in Marlow. See id. ¶ 8; see also Marlow,
78 F.4th at 417 (finding bald assertion that plaintiff needed deposition of
witness to be insufficient). Furthermore, as a lay witness and driver of the
truck (who by necessity was not with Kelley at the time of the collision), it is

46

not readily apparent what admissible testimony VanIperen could give on the
timing and cause of Kelley’s death. See Fed. R. Evid. 701 (limiting a lay
witness’s testimony which is rationally based on witness’s perception and
excluding testimony requiring scientific, technical or other specialized
knowledge).
The closest plaintiff’s affidavit gets to alleging facts surrounding Kelley’s
death exist is plaintiff’s statement that it has engaged a mechanical
engineering expert to inspect the 2020 Chevrolet Equinox. See Docket 54 ¶ 9.
But this statement alone is insufficient. Plaintiff has not explained what
specifically he hopes this expert inspection will reveal about the car and how
that directly connects to the timing of Kelley’s death. Without specifying what
plaintiff hopes this mechanical engineer’s inspection of the car would show as
it relates to whether Kelley died instantaneously, plaintiff has failed to meet the
second requirement under Rule 56(d). Johnson, 903 F.3d at 772. In short, the
deficiencies in plaintiff’s affidavit in Docket 54 replicate those in Marlow:
plaintiff’s affidavit is not specific enough and fails to adequately explain how
the evidence he seeks is relevant to rebut whether Kelley died immediately. See
Marlow, 78 F.4th at 417.
Perhaps sensing this gap, plaintiff attempts to further elaborate the
extent of the expert’s conclusions and what plaintiff hopes these conclusions
will show in a separate filing—plaintiff’s reply brief filed with regard to
plaintiff’s initial partial summary judgment motion. See Docket 63 at 23.
Specifically in plaintiff’s reply brief, plaintiff asserts that his expert, Dr. Mariusz
47

Ziejewski, has opined that the Equinox driven by Kelley had sufficient survival
space for Kelley and that the car’s recorded acceleration was also consistent
with Kelley surviving the initial collision. See id. (quoting Dr. Ziejewski’s report
in Docket 64-3); see also Docket 64-3 at 12-13. According to plaintiff, Dr.
Ziejewski’s report shows there is a genuine dispute of material fact regarding
the timing of Kelley’s death. See Docket 63 at 23.
Even after considering the substance of plaintiff’s reply brief and Dr.
Ziejewski’s report, 14 the court declines to postpone ruling on summary
judgment on this issue. Even if some of Dr. Ziejewski’s opinions—that there
was sufficient survival space for Kelley and that the acceleration her car
experienced would produce injuries that she could survive—are admissible
under Rule 702, these opinions are insufficient to raise a genuine dispute over
whether Kelley died instantly. See Docket 64-3 at 12-13.

Defendants move the court to strike the portion of plaintiff’s reply brief that
discusses plaintiff’s survival claim (pages 22-23 in Docket 63), including
discussions of Dr. Ziejewski’s report. See Docket 67; Docket 68 at 1.
Defendants also move the court to not consider Dr. Ziejewski’s report. Docket
67; Docket 68 at 1. In support, defendants state that plaintiff submitted these
items in his reply brief to plaintiff’s motion for summary judgment, but plaintiff
did not move for summary judgment on his survival claim. See Docket 68 at 12; see also Docket 46 (moving only for summary judgment on defendants’
affirmative defenses and on the issue of punitive damages under wrongful
death statute); Docket 47 at 5-29. As a result, defendants argue that plaintiff’s
items are aimed at refuting defendants’ motion for summary judgment, in
which case such items constitute an impermissible sur-reply. Docket 68 at 1-2,
4-12. The court need not rule on whether to strike these submissions because,
for the reasons stated below, even considering these submissions, the court
finds they are insufficient to justify plaintiff’s Rule 56(d) request. Thus, the
court denies defendants’ motion to strike the portion of plaintiff’s reply brief
that discusses plaintiff’s survival claim and Dr. Ziejewski’s report as moot.
14

48

Defendants have submitted sufficient evidence in the record to show that
Kelley actually died instantaneously; Dr. Ziejewski’s opinions simply state that
the car’s condition and the impact on the car made it possible that Kelley
survived. To be sure, Dr. Ziejewski’s opinions regarding the car’s condition are
relevant and support plaintiff’s argument that Kelley did not die instantly. But
they are insufficient alone because getting from Dr. Ziejewski’s opinions
regarding the possibility that an individual could survive in the car to the
conclusion that Kelley did in fact survive requires improper speculation. To the
extent that Dr. Ziejewski also opines that Kelley did indeed survive, the court
finds that such an opinion would be inadmissible under Rule 702 because Dr.
Ziejewski, as an engineer, is not a medical doctor and has no relevant
education or experience to make cause of death determinations. See id. at 1-2
(showing Dr. Ziejewski’s qualifications); Hirchak v. W.W. Grainger, Inc., 980
F.3d 605, 609 (8th Cir. 2020) (“An expert may proceed as far as—but no
further than—his specialized knowledge assists him in going.”). In short, Dr.
Ziejewski’s report is insufficient to show a genuine dispute over whether Kelley
died instantly.
In a final effort, plaintiff notes in his reply brief that “[t]he time in which
Kelley died remains disputed as further conclusions from Dr. Ziejewski are
dependent upon additional discovery.” Docket 63 at 23. Setting aside that
plaintiff’s counsel failed to make this submission in an affidavit as required
under Rule 56(d), see Moody, 903 F.3d at 772, this representation is
insufficient to justify delay. First, this submission lacks the requisite specificity
49

on what plaintiff expects Dr. Ziejewski’s new opinions will be, because it merely
asserts that Dr. Ziejewski will reach “further conclusions.” See Marlow, 78
F.4th at 417. Second, as discussed above, even if this submission was specific
enough, Dr. Ziejewski’s additional opinions would not create a genuine dispute
over whether Kelley died immediately because he lacks the requisite
qualifications to opine on the timing of her death. Thus, the court rejects
plaintiff’s final argument.
In summary, plaintiff has failed to show that the record contains a
genuine dispute of fact that Kelley died instantly. Plaintiff has not identified a
medical expert or any other competent evidence to show that Kelley did not die
immediately. As a result, the court grants defendants’ motion for summary
judgment on plaintiff’s survival claim because an instantaneous death
necessarily means Kelley did not suffer any physical or mental injuries, which
are necessary to prove a survival claim. See Plank, 156 N.W.2d at 200-01.
B. Punitive Damages Under Wrongful Death Claim
Next, defendants move for summary judgment on the issue of whether
punitive damages are available in plaintiff’s wrongful death claim. Docket 39 at
19-22. In response, plaintiff moves the court to certify the issue to the South
Dakota Supreme Court. Docket 47 at 26; Docket 57. In the alternative, plaintiff
moves the court to find that punitive damages, in appropriate cases, may be
available in wrongful death claims. See Docket 47 at 29-30. Defendants oppose
certification. Docket 66.

50

1. Certification
The court first addresses plaintiff’s certification request. The decision to
certify a question rests “in the sound discretion of the federal court.” Saunders
v. Thies, 38 F.4th 701, 716 (8th Cir. 2022) (quoting McKesson v. Doe, 592 U.S.
1, 5 (2020) (per curiam)). Certification for every open question of state law is
not obligatory. Lehman Bros. v. Schein, 416 U.S. 386, 390-91 (1974). Indeed,
the court should not “trouble [] sister state courts every time an arguably
unsettled question of state law comes across [its] desk[].” Pino v. United States,
507 F.3d 1233, 1236 (10th Cir. 2007). “State certification procedures . . . can
prolong the dispute and increase the expenses incurred by the parties[,]” and
“[o]ur system of ‘cooperative judicial federalism’ presumes federal and state
courts alike are competent to apply federal and state law.” McKesson, 592 U.S.
at 5.
In exercising its discretion, the court considers the state supreme court’s
authority to answer a certified question. After all, if the South Dakota Supreme
Court cannot properly answer a certified question, the court should not certify
the question. See SDCL § 15–24A–1 (outlining the requirements and limits for
when the South Dakota Supreme Court can answer a certified question).
Additionally, the court also considers various other factors, including but not
limited to the level of uncertainty the court has about the issue, how often the
issue is likely to reoccur in the state, and whether any of the parties seek
certification. See Bernstein v. Bankert, 733 F.3d 190, 221 (7th Cir. 2013); Royal
Cap. Dev., LLC v. MD Cas. Co., 659 F.3d 1050, 1055 (11th Cir. 2011).
51

Beginning with South Dakota’s statutory scheme on certification, under
SDCL § 15–24A–1, a federal court may certify a question of law to the South
Dakota Supreme Court if there is a question of South Dakota law “which may
be determinative of the cause pending” in the federal court and it appears “that
there is no controlling precedent” in the South Dakota Supreme Court’s
decisions. Defendants first argue that certification on this issue is not
appropriate because resolution of the issue upon which plaintiff seeks—
whether punitive damages are available in a wrongful death action—is not
determinative of the cause pending. See Docket 66 at 3-5. In support,
defendants correctly note that this issue only pertains to what damages are
available to plaintiff and does not affect the validity of plaintiff’s wrongful death
claim, much less plaintiff’s entire lawsuit (which includes other claims wholly
untouched by this issue). See id. The court acknowledges that the phrase “may
be determinative of the cause pending” is ambiguous and has generated
differing interpretations, some of which align with defendants’ view. See Thai
Meditation Assoc. of AL, Inc. v. City of Mobile, 980 F.3d 821, 838 (11th Cir.
2020) (describing similar language in Alabama’s rule as “downright opaque”
and outlining various courts’ interpretations); Volvo Cars of N. Am., Inc. v. Ricci,
137 P.3d 1161, 1163-64 (Nev. 2006) (outlining various approaches).
But the court need not reach the scope of “may be determinative of the
cause pending,” however, because the court declines to exercise its discretion
to certify the question based on other factors. The first factor the court
considers—the level of uncertainty this court has on the issue—cuts heavily
52

against certification. For reasons explained below, while the South Dakota
Supreme Court has not directly spoken on whether punitive damages are
available in a wrongful death claim, the court believes there is sufficient data
upon which the court can draw to make a reasonably certain prediction. The
second factor the court considers—how often the issue is likely to reoccur—
cuts in favor of certification because federal district courts, including this
court, have had to predict this issue in the past. See Sheesley v. The Cessna
Aircraft Co., 2006 WL 1084103, at *27 (D.S.D. Apr. 20, 2006); Bethel v. Janis,
597 F. Supp. 56, 58-59 (D.S.D. 1984). The third factor—whether any of the
parties has requested certification—initially cuts in favor of certification
because plaintiff requests certification. See Docket 57.
But the court “should be slow to honor a request for certification from a
party who chose to invoke federal jurisdiction.” Smith v. SEECO, Inc., 922 F.3d
406, 412 (8th Cir. 2019) (quoting 17A Charles A. Wright et al., Federal Practice
& Procedure § 4248 (3d. ed. 2017 update)); see also Fischer v. Bar Harbor
Banking and Trust Co., 857 F.2d 4, 8 (1st Cir. 1988) (finding plaintiff’s
certification request “particularly inappropriate” because “he had knowledge of
the state of the law under his theories for recovery, and had the choice of
forums to file suit, either in the local courts or the federal court under diversity
jurisdiction”); Seaboard Sur. Co. v. Garrison, Webb & Stanaland, P.A., 823 F.2d
434, 438 (11th Cir. 1987) (“Having sought a Federal forum, [plaintiff] must
abide by federal determination as to the present state of Florida law.”); Reyton
Cedar Knoll, LLC v. HPG Int’l Inc., 2007 WL 9751941, at *1 (M.D. Pa. June 1,
53

2007) (“[T]he fact that Plaintiff chose to invoke federal jurisdiction in the first
instance further supports a federal court’s hesitancy to certify this issue.”).
Here, plaintiff is the one who seeks certification to the South Dakota Supreme
Court, but plaintiff is the party who filed in federal court to begin with. See
Docket 1; Docket 57. If plaintiff wanted South Dakota courts to decide this
issue, he could have filed in state court. He did not.
Weighing these factors and recognizing they cut in opposite directions,
the court exercises its discretion and declines to certify the issue.
2. Whether Punitive Damages are Available Under South
Dakota’s Wrongful Death Statute
As mentioned above, the South Dakota Supreme Court has not yet
decided whether the present wrongful death cause of action authorizes punitive
damages. Without controlling authority, the court must predict how the South
Dakota Supreme Court would decide this issue, GEICO, 932 F.3d at 725-26,
relying on “relevant precedent, analogous decisions, considered dicta, and any
other reliable data[,]” Thompson, 59 F.4th at 926.
The issue here requires the court to interpret the interaction between
various statutes. The South Dakota Supreme Court’s approach to statutory
interpretation begins with the relevant statutes’ texts. See Farm Bureau Life
Ins. Co. v. Dolly, 910 N.W.2d 196, 199-200 (S.D. 2018). In doing so, the court
must give the texts’ words their plain meaning and effect, assuming the South
Dakota Legislature has said what it means and means what it says. See
McLane Western Inc. v. S.D. Dep’t of Revenue, 2 N.W.2d.3d 247, 251 (S.D.
2024); Reck v. S.D. Bd. of Pardons and Paroles, 932 N.W.2d 135, 140 (S.D.
54

2019). At the same time, the court does not construe statutes in a vacuum: the
court must consider them as a whole, looking to their structure and overall
context. LeFors v. LeFors, 991 N.W.2d 675, 683 (S.D. 2023); Endres v. Endres,
984 N.W.2d 139, 152 (S.D. 2022). Relatedly, the court must consider other
enactments relating to the same subject and construe them “so as to have
them exist in harmony,” because “it is inappropriate to select one statute on a
topic and disregard another statute which may modify or limit the effective scope
of the former statute.” South Dakota v. Jucht, 821 N.W.2d 629, 635 (S.D. 2012); In
re Expungement of Oliver, 810 N.W.2d 350, 352 (S.D. 2012).

At first glance, SDCL §§ 21-1-4, 21-5-1, and 21-5-7, appear to
collectively exclude punitive damages from wrongful death actions. Starting
with SDCL § 21-1-4, the South Dakota Legislature has provided the default
rule: punitive damages are unavailable “unless expressly provided by statute.”
Turning to the wrongful death cause of action, SDCL § 21-5-1 provides that a
person who wrongfully causes the death of another “shall be liable, to an action
for damages[.]” SDCL § 21-5-1. And under the section entitled “Damages
proportionate to pecuniary injury to beneficiaries[,]” SDCL § 21-5-7 provides:
“In every action for wrongful death the jury may give such damages as they
may think proportionate to the pecuniary injury resulting from such death to
the persons respectively for whose benefit such action shall be brought.”
Defendants argue that these statutes unambiguously exclude punitive
damages from wrongful death claims. Docket 66 at 9. After all, given that
punitive damages are not available unless expressly authorized by statute and
55

because neither SDCL §§ 21-5-1 nor 21-5-7 expressly provide for the
availability of punitive damages under the wrongful death statute, defendants
argue that such damages are not available in wrongful death claims. See id.
Defendants point out that SDCL § 21-5-7 specifically contemplates the
availability of pecuniary damages (which are not punitive damages), and thus
the Legislature’s mentioning of pecuniary damages confirms that had it wished
to allow for punitive damages it would have expressly said so. See id.; see also
Wilcox v. Vermeulen, 781 N.W.2d 464, 469-70 (S.D. 2010) (explaining pecuniary
damages include economic loss and the “loss of the decedent’s companionship
and society . . . .”); Fluth v. Schoenfelder Constr., Inc., 917 N.W.2d 524, 533
(S.D. 2018) (recognizing punitive damages “may be awarded ‘for the sake of
example . . . by way of punishing the defendant’ and ‘are distinct from and “in
addition to actual damage.” ’ ” (quoting Wyman v. Terry Schulte Chevrolet, Inc.,
584 N.W.2d 103, 107 (S.D. 1998)). In defendants’ view, because SDCL § 21-5-7
“does not even use or mention the word ‘punitive,’ it would be improper to
construe the statute as contemplating punitive damages.” Docket 60 at 21-22.
But nothing in SDCL § 21-5-7 states that pecuniary damages are the
exclusive remedy available under wrongful death claims. In fact, SDCL §§ 21-14, 21-5-1, and 21-5-7 are not the final words on the availability of punitive
damages. Entitled “Punitive damages in discretion of jury[,]” SDCL § 21-3-2
provides:
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, or in any case of wrongful injury to
56

animals, being subjects of property, committed intentionally or by
willful and wanton misconduct, in disregard of humanity, the jury,
in addition to the actual damage, may give damages for the sake of
example, and by way of punishing the defendant.
SDCL § 21-3-2 (emphasis added). Because punitive damages are available
(provided defendants’ actions are sufficiently severe) in “any action for the
breach of an obligation not arising from contract,” the issue here is whether a
violation of the wrongful death statute constitutes “any action for the breach of
an obligation not arising from contract.” SDCL § 21-3-2.
It does. The South Dakota Legislature has explicitly made it an
“obligation” to not wrongfully cause someone’s death by authorizing a cause of
action under SDCL § 21-5-1. And because this obligation arises from a
legislative mandate rather than an agreement between two parties, this
obligation does not arise from contract. Thus, SDCL § 21-3-2 unambiguously
authorizes punitive damages for violations of SDCL § 21-5-1.
While SDCL § 21-5-7 explicitly provides pecuniary damages are available
for wrongful death claims and simultaneously does not mention punitive
damages, this section cannot be read in isolation. LeFors, 991 N.W.2d at 683;
Endres, 984 N.W.2d at 152. Taking this section in context and giving meaning
to all of the words of both this section and SDCL § 21-3-2, SDCL § 21-5-7 is
best understood not as an exclusive recounting of the damages available under
a wrongful death claim, but rather as a limitation on pecuniary damages:
pecuniary damages must be “proportionate” to the pecuniary injury “resulting
from such death to the persons respectively for whose benefit such action shall
be brought.” See SDCL § 21-5-7. Interpreting SDCL § 21-5-7 as a limit on
57

pecuniary damages rather than an exclusive list of available damages gives a
reasonable interpretation and ensures SDCL §§ 21-5-7 and 21-3-2
harmoniously exist. Jucht, 821 N.W.2d 635. In fact, adopting defendants’
interpretation would “inappropriate[ly] [] select [SDCL § 21-5-7] and disregard
[SDCL § 21-3-2] which [] modif[ies] . . . the effective scope of [SDCL § 21-5-7].”
In re Expungement of Oliver, 810 N.W.2d at 352.
The South Dakota Supreme Court has already taken this exact approach
in Groseth Int’l, Inc. v. Tenneco Inc., 440 N.W.2d 276, 279 (S.D. 1989) (overruled
on other grounds by Tibke v. McDougall, 479 N.W.2d 898, 906-07 (S.D. 1992)).
There, the Court confronted the issue of whether punitive damages were
available for suits under SDCL § 37-5-4 (which provides a cause of action for
car dealers to sue manufacturers, factories, branches, distributors, distributorbranches, or their agents for various unlawful actions). 15 See id. Crucially,

SDCL § 37-5-4 provides: “Each and every person and corporation who or
which violates any provision of §§ 37-5-1 to 37-5-3, inclusive, shall be liable to
any dealer damaged thereby for all damages caused to such dealer by such
violation.”
15

SDCL § 37-5-1 provides:
It is a Class 1 misdemeanor for any manufacturer, factory, branch,
distributor, or distributor-branch, or any field representative,
officer, agent, or representative of any of them to coerce or attempt
to coerce any dealer to purchase or accept delivery of any
merchandise, repair parts for the merchandise, or any other
commodity that has not been ordered by the dealer; by threatening
to cancel or terminate any franchise, agency, arrangement, or
agreement existing between such manufacturer, factory, branch,
distributor, distributor-branch, or any field representative, officer,
agent, or representative of any of them and the dealer or by any
other unfair means or by duress of any kind.
58

SDCL § 37-5-4 provided that in cases of a violation under SDCL §§ 37-5-1 to
37-5-3, inclusive, a wrongdoer shall be liable “for all damages caused to such
dealer by such violation.” SDCL § 37-5-4. Section 37-5-4 explicitly references
the damages available as those which the dealer suffered and did not mention
punitive or exemplary damages. Id. Observing SDCL § 37-5-4’s silence and
SDCL § 21-1-4’s command that punitive damages are available only when
expressly authorized by statute, the defendants in Groseth argued—just as
defendants argue in this instant case—that punitive damages are necessarily
unavailable under SDCL § 37-5-4.

SDCL § 37-5-2 provides:
It is a Class 1 misdemeanor for any manufacturer, factory, branch,
distributor, or distributor-branch, or any field representative,
officer, agent, or representative of any of them to coerce or attempt
to coerce any dealer to enter into any agreement with the
manufacturer, factory, branch, distributor, or distributor-branch, or
any field representative, officer, agent, or representative of any of
them, or to assign, sell, or dispose of any contract or property in any
way, or to expend any money or do any other act unfair to such
dealer; by threatening to cancel or terminate any franchise, agency,
arrangement, or agreement existing between such manufacturer,
factory, branch, distributor, distributor-branch, or any field
representative, officer, agent, or representative of any of them and
the dealer or by any other unfair means or by duress of any kind.
SDCL § 37-5-3 provides:
It is a Class 1 misdemeanor for any manufacturer, factory, branch,
distributor, or distributor-branch, or any field representative,
officer, agent, or representative of any of them, unfairly, without due
regard to the equities of the dealer and without just provocation, to
cancel the franchise of any dealer.
59

But the Supreme Court in Groseth rejected this argument. Groseth
explained: “[o]ur analysis does not end by applying SDCL 21-1-4 to SDCL 37-54. We also examine whether the provisions of SDCL 21-3-2 apply to this case.”
Groseth, 440 N.W.2d at 279 (emphasis added). Because the violation in Groseth
“involve[d] the breach of a statute and thus meets the statutory limitation of
‘breach of an obligation not arising from contract[,]” the Court held punitive
damages may be available in suits filed under SDCL § 37-5-4. Id. The route
Groseth took is the precise route this court must take. Just as SDCL § 21-3-2
authorizes punitive damages in claims filed under SDCL § 37-5-4, so too does
SDCL § 21-3-2 authorize punitive damages in wrongful death suit claims
brought under SDCL § 21-5-7.
The Supreme Court has taken this approach in other contexts as well,
albeit less explicitly. For example, consider the South Dakota Legislature’s
statute authorizing a cause of action for deceit, which provides: “One who
willfully deceives another, with intent to induce him to alter his position to his
injury or risk, is liable for any damage which he thereby suffers.” SDCL § 2010-1 (emphasis added). By specifically laying out that fraud victims may
recover damages for “which [they] thereby suffer[]” and not mentioning punitive
damages, it may seem like from its face, SDCL §§ 20-10-1 and 21-1-4 preclude
punitive damages in deceit cases because punitive damages are not aimed at
compensating a victim’s suffering, but rather deterring and punishing
wrongdoers. Fluth, 917 N.W.2d at 533. But the South Dakota Supreme Court
in Stabler v. First State Bank of Roscoe, unambiguously held that SDCL § 21-360

2 authorizes punitive damages in tortious deceit claims filed under SDCL § 2010-1. 865 N.W.2d 466, 474, 474 n.12 (S.D. 2015) (explaining plaintiffs brought
deceit claim under SDCL 20-10-1 at trial), 479-80 (upholding jury’s punitive
damages award based on SDCL § 21-3-2). The Court in Stabler could not have
so held if it read SDCL § 20-10-1’s authorization of damages for which the
plaintiff suffers to necessarily exclude punitive damages from this cause of
action. But Stabler makes clear that punitive damages are available in tortious
deceit claims brought under SDCL § 20-10-1. So too with the wrongful death
statute here.
The court recognizes that in both Groseth and Stabler, the statutes at
issue included both the causes of action and the damages in the same section.
See Groseth, 440 N.W.2d at 279; Stabler, 865 N.W.2d at 474-76. That is not the
case with the wrongful death statute: the wrongful death statutes here both
have a section that provides for the cause of action and a separate section that
specifically provides for certain kinds of available damages. See SDCL §§ 21-51 (cause of action for wrongful death) and 21-5-7 (damages for wrongful death).
Thus, one may argue that this case is distinguishable from Groseth and Stabler
because the South Dakota Legislature’s decision to provide for a separate
section for damages in SDCL § 21-5-7 is more indicative that the Legislature
intended to make such damages the exclusive kinds of damages available
under a wrongful death claim, compared to the Legislature’s decisions in the
statutes involved in Groseteh and Stabler.

61

But the South Dakota Supreme Court’s decision in Till v. Bennett, 281
N.W.2d 276, 279 (S.D. 1979) directly forecloses this analysis. In Till, the cause
of action involved was a trespass violation by livestock. See id. at 278; SDCL
§ 40-28-4. SDCL § 40-28-4 provides in relevant part that a person who owns,
has charge of, or is in possession of, certain livestock and such livestock
trespasses on another’s land, “is liable to any such person injured for all
damages sustained by reason of the trespass.” SDCL § 40-28-4. Again, SDCL
§ 40-28-4 says nothing about punitive damages. And on its face it suggests
that a wrongdoer is liable only for damages sustained by reason of the trespass,
which is wholly separate from the purpose for which punitive damages exist.
See Fluth, 917 N.W.2d at 533.
In fact, just like the statutory scheme with respect to the wrongful death
statute, the South Dakota Legislature explicitly provided a separate section for
damages for trespass by livestock cases. Compare, SDCL §§ 21-5-1 (cause of
action for wrongful death) and 21-5-7 (damages for wrongful death), with SDCL
§§ 40-28-4 (cause of action for trespass by livestock) and 40-28-23 (damages
for trespass by livestock). The damages statute for trespass by livestock
provides: “Upon the trial of an action under the provisions of this chapter, the
plaintiff shall recover the amount of damages sustained and the expenses of
keeping the trespassing animal or animals during the time he has restrained
and retained the custody thereof.” SDCL § 40-28-23. Just as in § 21-5-7 (the
damages section for wrongful death claims), nothing in SDCL § 40-28-23 says
anything about punitive damages.
62

Putting together SDCL §§ 40-28-4 and 40-28-23, the South Dakota
Legislature in both sections explicitly discussed the available damages and did
not mention punitive damages. If there was ever a circumstance in which the
Legislature meant to exclude punitive damages, it would be with this trespass
by livestock cause of action.
But not so, says Till. Instead, Till affirmed a jury’s award of punitive
damages for a violation of § 40-28-4 because SDCL § 21-3-2 plainly applied.
281 N.W.2d at 279; see also Risse v. Meeks, 585 N.W.2d 875, 877 (S.D. 1998)
(“This Court has specifically found [that punitive damages statute in SDCL §
21-3-2] applies to causes of action brought pursuant to SDCL 40-28-4.”). It did
not matter that SDCL §§ 40-28-4 and 40-28-23 provided for certain kinds of
damages for trespass by livestock actions without saying anything about
punitive damages. See Till, 281 N.W.2d at 279. Those statutes did not displace
the punitive damages statute in SDCL § 21-3-2, which plainly applied.
Groseth, Stabler, and Till teach three related and dispositive lessons.
First, in determining whether a cause of action authorizes punitive damages,
courts must look not only at the damages expressly provided for in the specific
cause of action statute, but also to the punitive damages statute set forth in
SDCL § 21-3-2. See Groseth, 440 N.W.2d at 279; Stabler, 865 N.W.2d at 47476, 479-80. Second, the mere inclusion of a specific kind of damages in the
specific cause of action (without explicitly mentioning punitive damages) poses
no barrier to the availability of punitive damages, so long as the requirements
under SDCL § 21-3-2 are satisfied. See Groseth, 440 N.W.2d at 279; Stabler,
63

865 N.W.2d at 474-76, 479-80. If it were not for these two lessons, neither the
claim under SDCL § 37-5-4 nor the deceit claim under SDCL § 20-10-1 would
have allowed punitive damages because both SDCL § 37-5-4 and SDCL § 2010-1 were silent on punitive damages (in fact expressly provided for a different
kinds of damages). See SDCL §§ 37-5-4; 20-10-1. But the South Dakota
Supreme Court has held that both causes of action authorize punitive damages
under SDCL § 21-3-2. See Groseth, 440 N.W.2d at 279; Stabler, 865 N.W.2d at
474-76, 479-80.
Third, not only is the inclusion of non-punitive damages in the statute
that recognizes the cause of action insufficient to show the unavailability of
punitive damages for such action, but the inclusion of non-punitive damages in
the damages section of the statute that recognizes a cause of action is similarly
insufficient. See Till, 281 N.W.2d at 279; Risse, 585 N.W.2d at 877. In other
words, Till illustrates the mere fact that SDCL § 21-5-7 provides an explanation
regarding pecuniary damages without mentioning punitive damages does not
necessarily exclude punitive damages. Instead, the key inquiry is whether,
taken as a whole, any of the statutes expressly authorize punitive damages.
See SDCL § 21-1-4.
Appling the holdings of Groseth, Stabler, and Till to the plain language of
the statutes at issue, this court must also look at SDCL §§ 21-1-4, 21-5-1, and
21-5-7, and also SDCL § 21-3-2. Because a violation of the wrongful death
statute is necessarily a violation of an “obligation” not arising from contract,
the plain language of SDCL § 21-3-2 authorizes punitive damages. As a result,
64

the court predicts that the South Dakota Supreme Court would hold that SDCL
§ 21-3-2 authorizes punitive damages for wrongful death claims brought under
SDCL § 21-5-1.
Having lost on the text, defendants instead focus on the South Dakota
Supreme Court’s decision in Smith v. Chicago, M & St. P Ry. Co., 62 N.W. 967,
968 (S.D. 1895), which determined that punitive damages were unavailable in
a previous version of the wrongful death statute (passed in 1887) and urges the
court to hold the same under the current statute. See Docket 39 at 20; Docket
66 at 6-8. In Smith, the Court noted that in the version before 1887, the statute
allowed individuals to recover “punitive damages for the loss[.]” Smith, 62 N.W.
at 968. The legislature, however, struck the word “punitive” and provided that
individuals could recover “damages.” See id. The Court observed that this
deletion “is an important fact, as showing the intention of the legislature to
change the rule allowing a recovery for ‘punitive,’ exemplary, or vindictive
damages, and to limit parties to recovery for actual or compensatory damages
only.” Id.
But whatever the merits of Smith’s decision on the availability of punitive
damages at the time, 16 the South Dakota Legislature has amended the 1887

Plaintiff invites this court to revisit Smith’s decision by introducing additional
evidence of the legislature’s intent at the time it struck the word “punitive” from
the statute providing for damages under wrongful death suits. See Docket 47 at
19-27; Docket 58 at 8-21. But for reasons explained above, the court finds it
unnecessary to dive into the previous legislative record based on the plain text
of SDCL §§ 21-1-4, 21-5-1, 21-5-7, and 21-3-2. Relatedly, plaintiff requests the
court take judicial notice of various items, including the 1877 and 1887
versions of Dakota Territory laws relating to wrongful death actions and
16

65

version of the statute multiple times and thus Smith’s holding does not bind
the court. See Anderson v. Lale, 216 N.W.2d 152, 155 (S.D. 1974) (recounting
the history of the wrongful death statute). Importantly, the Supreme Court in
Anderson expressly stated that in interpreting a current version of a statute,
the Court is not bound by its previous decisions on previous versions of the
statute, even if the wording of such versions is identical to the current version.
See id. at 155-56. In Anderson, for example, the court confronted the issue of
whether a plaintiff could recover for loss of companionship and association
under the statute’s allowance of “pecuniary damages.” See id. at 154-55.
In deciding this issue, the court traced the history of the wrongful death
statute. In 1909, after the decision in Smith, the Legislature codified the term
“pecuniary injury,” and the wrongful death statute remained unchanged until
1947. See Anderson, 216 N.W.2d at 155. Prior to the 1947 change, the
Supreme Court at first held in Rowe v. Richards, 142 N.W. 664, 666 (S.D.
1913), that in a wrongful death action, a plaintiff could recover for loss of
means of support, loss of society, comfort, and care suffered by the plaintiff in

punitive damages, as well as newspaper articles printed during this time
period. See Docket 55. Defendants do not object to the court taking judicial
notice of the 1877 and 1887 versions of the statutes. See Docket 65 at 1-2; see
also McIndoo v. Burnett, 494 F.2d 1311, 1313 (8th Cir. 1974) (explaining “the
law of any state of the Union, whether depending upon statutes or upon
judicial opinions, is a matter of which the courts of the United States are
bound to take judicial notice, without plea or proof”). The court thus takes
judicial notice of these previous versions of the statutes. With respect to the
newspapers, however, defendants object for various reasons. See Docket 65 at
2. The court does not rely in any way on the contents of these newspapers in
reaching its decision, so the court denies plaintiff’s request to take judicial
notice of these newspaper articles as moot.
66

the death of the decedent. But then in a series of four decisions, the Court
narrowed the scope of recoverable pecuniary damages, holding that the
wrongful death statute only allowed for expenses necessarily incurred and a
reasonable expectation of benefit which would have resulted from the
continued life of the deceased. See Anderson, 216 N.W.2d at 155 (citing Smith
v. Presentation Acad. of Aberdeen, 248 N.W. 762 (S.D. 1933); Tufty v. Sioux
Transit Co., 10 N.W.2d 767 (S.D. 1943); Hodkinson v. Parker, 16 N.W.2d 924
(S.D. 1944); and McCleod v. Tri-State Milling Co., 24 N.W.2d 485 (S.D. 1946)).
Following these decisions, in 1947, the South Dakota Legislature
removed the word “pecuniary” and instead inserted the word “all” in its place,
“thus enlarging the measure of damages which could be recovered.” See id.
(citing Ch. 173, s 1, S.L. 1947). After this statutory change, the South Dakota
Supreme Court expanded the scope of pecuniary damages, holding that “[t]he
mental anguish and the loss of companionship susceptible of monetary
valuation were . . . proper elements to be considered in estimating the damages
sustained by the parents.” Id. (quoting Simons v. Kidd, 42 N.W.2d 307, 310
(S.D. 1950)).
Then in 1967, the South Dakota Legislature passed a new statute,
changing the term “all injury” back to “pecuniary injury.” See id. The
defendants in Anderson argued the trial court erroneously instructed the jury
that “pecuniary loss” included the loss suffered from being deprived of advice,
comfort, and protection of the child. See id. at 154-56. In support, the
defendants argued the Court should interpret the current statute—which
67

authorized “pecuniary damages”—the same way the Court had interpreted an
identical earlier version when it too only authorized “pecuniary damages.” See
id. at 155-56. Thus, according to the defendants, “it was the intention of the
legislature in making the 1967 changes to return to the more restrictive
measure of damages in wrongful death actions of prior times.” Id. at 155.
But the Supreme Court in Anderson explicitly rejected the defendants’
argument, stating that it “d[id] not feel constrained to follow our past
decisions.” Id. at 156. Instead, the Court explained that “the wrongful death
statute is remedial in character and, therefore, should be construed liberally in
light of current social conditions.” Id. at 155-56. After considering other state’s
decisions, the Court held that the wrongful death statute allowed for pecuniary
loss “includ[ing] loss of companionship, society, advice, assistance and
protection” where the decedent was a minor. Id. at 158.
While Anderson did not discuss the precise issue in this case—namely,
whether the wrongful death statute authorizes punitive damages—it teaches an
important lesson. The mere fact that the Supreme Court had once interpreted
an identically worded statute (that had then subsequently been amended and
then re-adopted) to disallow one type of damages does not automatically mean
the Supreme Court will do the same with a newly amended statute. See id. at
155-56. Thus, the court predicts that the South Dakota Supreme Court would
not feel bound by Smith’s interpretation—of a previous version of the wrongful
death statute—that excluded punitive damages. That’s especially the case here,

68

where the text of the statutes at issue unambiguously authorizes punitive
damages as discussed above.
Finally, the court acknowledges that Smith’s holding regarding the
unavailability of punitive damages may be relevant for a related reason: the
South Dakota Legislature did not change the wrongful death statute to
explicitly provide for punitive damages, even though it could have and even
though it changed the wrongful death statute in response to the Supreme
Court’s interpretations several times as outlined above. See Anderson, 216
N.W.2d at 155 (walking through various versions and the legislature’s various
responses to the Supreme Court’s decisions). Thus, the South Dakota
Legislature’s failure to clarify the availability of punitive damages despite
Smith’s contrary holding, given this court “presume[s] the Legislature acts with
knowledge of [the Court’s] judicial decisions[,]” “suggests that the Legislature
agrees with [Smith’s] interpretation.” See AEG Processing Ctr. No. 58, Inc., v. S.
D. Dep’t. of Revenue and Regul., 838 N.W.2d 843, 848 (S.D. 2013). But this
presumption is just a presumption, and it must yield to the plain and
unambiguous language of the statutes. See Whalen v. Whalen, 490 N.W.2d
276, 281 n. 2 (S.D. 1992). For the reasons explained above, the court finds that
SDCL §§ 21-1-4, 21-5-1, 21-5-7, and 21-3-2, collectively interpreted,
unambiguously authorize punitive damages in wrongful death claims, and
predicts the South Dakota Supreme Court would do the same.
The court also acknowledges that two previous federal courts, including
this court back in 2006, predicted that South Dakota does not authorize
69

punitive damages in wrongful death claims. See Sheesley, 2006 WL 1084103,
at *27; Bethel, 597 F. Supp. at 58-59. But neither of these decisions bind the
court, nor did either of them discuss the interplay between SDCL §§ 21-1-4,
21-5-1, 21-5-7, 21-3-2, and the Supreme Court decisions in Groseth, Stabler,
and Till. After carefully considering the new arguments presented today, the
court finds it appropriate to change its mind from Sheesley and respectfully
disagree with Bethel.
In short, South Dakota law authorizes punitive damages for wrongful
death claims. Of course, this finding says nothing about whether plaintiff will
ultimately succeed and secure them. Just like any other claim for punitive
damages, plaintiff must show that VanIperen acted with malice as required
under SDCL § 21-3-2. See Smizer v. Drey, 873 N.W.2d 697, 703 (S.D. 2016)
(citation omitted). In moving for summary judgment, defendants only argue
that South Dakota law does not authorize punitive damages. See Docket 39 at
19-21; Docket 60 at 21-23. Defendants do not argue that VanIperen’s actions,
viewed in the light most favorable to plaintiff, are insufficient to show malice.
See Docket 39 at 19; Docket 60 at 21-23. Thus, based on defendants’
arguments, the court denies defendants’ motion for summary judgment on the
issue of punitive damages. 17

As mentioned at the beginning of this order, plaintiff also moves to
supplement the evidentiary record, including portions of VanIperen’s deposition
testimony, Harms Oil employee Travis Manke, Harm Oil’s safety manager
DuWayne Aman, other witnesses, discovery requests to defendants for which
responses are pending, and “other relevant evidence obtained following the
close of briefing on [d]efendants’ motion for summary judgment.” Docket 79 at
17

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CONCLUSION

Based on the above, it is ORDERED that:
(1) Plaintiff’s partial motion for summary judgment is GRANTED IN
PART AND DENIED IN PART. The court grants summary
judgment in favor of plaintiff on defendant’s assumption of the
risk defense. The court denies summary judgment on the issue
of contributory negligence.
(2) Defendants’ motion for summary judgment is GRANTED IN
PART AND DENIED IN PART. The court grants summary
judgment in favor of defendants on plaintiff’s survival claim.
The court denies summary judgment on all other claims.
(3) Defendants’ motion to strike (Docket 67) is DENIED as moot.
(4) Plaintiff’s request for judicial notice (Docket 55) is GRANTED IN
PART AND DENIED IN PART. The court takes judicial notice of
the previous 1877 and 1887 versions of the wrongful death
statutes in South Dakota. The court does not take judicial
notice of the various newspaper articles because, even if it is
proper, it is unnecessary.
1-2. This evidence does not appear relevant to plaintiff’s survival claim on the
issue of whether Kelley died instantaneously, which is the only claim on which
the court granted summary judgment in favor of defendants. Rather, this
proposed evidence appears relevant for the issues of contributory negligence,
assumption of the risk, and punitive damages for plaintiff’s wrongful death
claim. Because the court denies defendants’ summary judgment motion on the
issues of contributory negligence, assumption of the risk, and punitive
damages in plaintiff’s wrongful death claim, the court denies plaintiff’s motion
to supplement the evidentiary record (Docket 79) as moot.
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(5) Plaintiff’s request to certify (Docket 57) the issue of whether
punitive damages is available under wrongful death suits is
DENIED; and
(6) Defendants’ motion for oral argument (Docket 62) is DENIED.
(7) Plaintiff’s motion to supplement the evidentiary record (Docket
79) is DENIED as moot.
Dated June 4, 2024.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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