Mendonca v. Winckler

Filing 51

ORDER adopting 47 Report and Recommendation; overruling 49 Objection to Report and Recommendation; granting 30 Motion for Summary Judgment; dismissing the second cause of action against defendant Corpat, Inc., d/b/a Alamo/National Car Rental of 19 Amended Complaint. Signed by Chief Judge Jeffrey L. Viken on 3/18/14. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
SHELLY MENDONCA, as
Personal Representative of the
Estate of TRISHA MENDONCA,
Plaintiff,
vs.
JORDAN THOMAS WINCKLER
and CORPAT, INC., d/b/a
ALAMO/NATIONAL CAR
RENTAL,
Defendants.

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CIV. 12-5007-JLV

ORDER OVERRULING
PLAINTIFF’S OBJECTIONS
AND ADOPTING REPORT
AND RECOMMENDATION

INTRODUCTION
Pending before the court is a motion for summary judgment of
defendant Corpat, Inc., d/b/a Alamo/National Car Rental (“Corpat”).
(Docket 30). The court referred the motion to Magistrate Judge Veronica L.
Duffy for resolution. (Docket 42). On December 11, 2013, Magistrate Judge
Duffy filed a report recommending the court grant defendant Corpat’s
motion for summary judgment. (Docket 47). Plaintiff timely filed objections.
(Docket 49). Defendant Corpat filed a response to defendants’ objections.1
(Docket 50).
The court reviews de novo those portions of the report and
recommendation which are the subject of objections. Thompson v. Nix, 897

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Fed. R. Civ. P. 72(b)(2) allows a party to respond to an opposing party’s
objections.

F.2d 356, 357-58 (8th Cir. 1990); 28 U.S.C. § 636(b)(1). The court may
then “accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
For the reasons stated below, plaintiff’s objections are overruled. The court
adopts the report and recommendation of the magistrate judge in its
entirety.
A.

MAGISTRATE JUDGE’S FINDINGS OF FACT
Plaintiff’ “specifically objects to Section D . . . [as] [t]he Magistrate

Judge failed to use the proper standard in reviewing the facts, which is to
view the facts in the light most favorable to the non-moving party.” (Docket
49 at p. 2). Plaintiff did not object to the recitation of facts at pages 2
through 7 of the report and recommendation. Having carefully reviewed the
submissions of the parties, the court adopts the statement of facts at pages
2 through 7 of the report and recommendation. 28 U.S.C. § 636(b)(1)(C).
Plaintiff’s objections to Section D of the report and recommendation
will be addressed below.
B.

MAGISTRATE JUDGE’S CONCLUSIONS OF LAW
Plaintiff’s objections to the magistrate judge’s conclusions of law,

specifically Section D of the report and recommendation, are summarized as
follows:
1.

Mr. Dayton should have known of Mr. Winckler’s use of
marijuana on the day he rented the car, thus rendering Mr.
Winckler incompetent to drive; and

2.

Mr. Dayton should have known Mr. Winckler’s hand injury
rendered Mr. Winckler incompetent to drive.
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(Docket 49 at pp. 3-6). Plaintiff did not object to the magistrate judge’s
conclusion that for a “negligent entrustment claim under Wyoming law, the
duty and breach elements require plaintiff to prove that Corpat entrusted a
car to Mr. Winckler knowing that Mr. Winckler was incompetent, or under
circumstances where Corpat should have known that Mr. Winckler was
incompetent.” (Docket 47 at p. 21). “What Corpat knew or should have
known depends entirely on the appearance of Mr. Winckler when he
presented himself to the Corpat desk to rent the vehicle and what Corpat’s
agent, Dakota Dayton, knew or observed about Mr. Winckler on that
occasion.” Id. at p. 22. Against this background, each of plaintiff’s
objections will be addressed separately.
1.

MR. DAYTON SHOULD HAVE KNOWN OF MR.
WINCKLER’S USE OF MARIJUANA ON THE DAY
HE RENTED THE CAR, THUS RENDERING MR.
WINCKLER INCOMPETENT TO DRIVE

Plaintiff argues the magistrate judge failed to properly consider the
following undisputed facts:
1.

Mr. Winckler had smoked a full joint with Ms.
Mendonca on their way to pick up the rental car at
the airport;

2.

Mr. Dayton, the rental car agent, grew up around people who
smoked marijuana; and

3.

Mr. Winckler’s urinalysis submitted shortly after the accident
tested positive for cannabinoids at 969 ng/mlin.

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(Docket 49 at p. 3). Plaintiff argues the magistrate judge failed to consider
these “facts in the light most favorable to Plaintiff.” Id. The magistrate
judge found the following undisputed facts:
1.

On the way to the airport, Mr. Winckler and Ms.
Mendonca shared a small full joint of marijuana.
(Docket 47 at p. 2);

2.

Mr. Dayton was familiar with the effects of marijuana
on its users. Id. at p. 4; and

3.

[After the accident] it was later determined that [Mr.
Winckler] did have cannabinoids in his system. Id. at
p. 6.

What plaintiff appears to disapprove of are the magistrate judge’s
conclusions from those undisputed facts. Those conclusions are:
1.

Mr. Dayton had no actual knowledge that Mr.
Winckler had ingested marijuana immediately prior
to renting the Corpat vehicle. Id. at p. 22;

2.

Mr. Dayton had no actual knowledge that Mr.
Winckler used marijuana generally. Id.; and

3.

[T]here are no facts or circumstances from which a
reasonable person should have known that Mr.
Winckler had just used marijuana before appearing
at the Corpat desk. Id.

The circumstances from which a jury may conclude a reasonable
person should have known Mr. Winckler was using marijuana before
renting the car would include red or glassy eyes, unusual behavior, the
smell of marijuana or a masking odor about his person, and the appearance

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of marijuana on his person or clothing.2 No evidence of these factors was
present at the Corpat rental desk on July 28, 2011. Id. at pp. 22-23. These
are the critical observations which plaintiff must present by evidence, not
speculation or conjecture, to prove Mr. Dayton knew or should have known
Mr. Winckler was incompetent to rent a car and drive on that day. Plaintiff
offers no testimony, by expert witness or otherwise, to show the significance
of a positive cannaboids test at 969 ng/mlin on an individual some 13 or 14
hours after the rental transaction.
Once the moving party meets its burden, the nonmoving party may
not rest on the allegations or denials in the pleadings, but rather must
produce affirmative evidence setting forth specific facts showing that a
genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 256 (1986). See also Thomas v. Corwin, 483 F.3d 516, 527 (8th
Cir. 2007) (mere allegations, unsupported by specific facts or evidence
beyond a nonmoving party’s own conclusions, are insufficient to withstand
a motion for summary judgment); Torgerson v. City of Rochester, 643 F.3d
1031, 1042 (8th Cir. 2011) (en banc) (“The nonmovant must do more than
simply show that there is some metaphysical doubt as to the material facts,
and must come forward with specific facts showing that there is a genuine

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Plaintiff offers no other circumstances or indicies which were present
but overlooked by the magistrate judge in completing the analysis of this issue.
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issue for trial. Where the record taken as a whole could not lead a rational
trier of fact to find for the nonmoving party, there is no genuine issue for
trial.”) (internal quotation marks and citation omitted).
Plaintiff argues ingestion of marijuana could have contributed to Mr.
Winckler falling asleep, the vehicle going off the road and striking the guard
rail. (Docket 49 at p. 3). Plaintiff’s own conclusions, without supporting
evidence, are insufficient to create a genuine issue of material fact.
Anderson, 477 U.S. at 256; Thomas, 483 F.3d at 527; Torgerson, 643 F.3d
at 1042.
Plaintiff’s objection on this basis is overruled.
2.

MR. DAYTON SHOULD HAVE KNOWN MR. WINCKLER’S
HAND INJURY RENDERED MR. WINCKLER INCOMPETENT
TO DRIVE

Plaintiff argues Mr. Dayton’s observation of Mr. Winckler’s hand splint
should have put Mr. Dayton on notice that Mr. Winckler was incapable of
driving. (Docket 49 at p. 4). The undisputed evidence is that “Mr. Dayton
did observe the removable splint on Mr. Winckler’s right hand, he did not
make inquiry of Mr. Winckler to ascertain how he had injured his hand or
what the functionality of his hand was at the time of the car rental.”
(Docket 47 at p. 4). The magistrate judge noted that plaintiff asserted “Mr.
Winckler had no use of his right hand at the time of the accident.” Id. at p.
3 n. 2 (emphasis in original). However, this assertion is contrary to Mr.
Winckler’s testimony. It is undisputed Mr. Winckler personally drove to the
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airport to get the rental car. Id. at p. 3. His testimony, unchallenged by
contrary medical records or other evidence, was that by July 28, 2011, he
“was able to start . . . to slowly . . . try to use [his] fingers.” Id. at p. 3 n. 2.
Plaintiff acknowledges Mr. Winckler’s splint was a removable, temporary
cast. (Docket 49 at p. 5).
Plaintiff offers no evidence of “causation between the accident and the
splint on Mr. Winckler’s hand.” (Docket 47 at p. 30). Rather, plaintiff
argues “[t]he issue of whether the arm cast/splint rendered Mr. Winckler
incompetent to operate the vehicle in a safe manner or more likely to use
the vehicle in an unreasonable manner is an issue of fact only for a jury to
decide.” (Docket 49 at p. 4). “[I]f the cause of the accident is determined to
be a defective tire causing the vehicle to leave the roadway, it’s just as
reasonable for a jury to determine that Mr. Winckler’s inability to use his
dominant hand to control the vehicle was . . . a cause of the accident.” Id.
at p. 6.
Plaintiff bears the burden of presenting some evidence upon which a
jury could conclude the presence of the splint put Mr. Dayton on notice Mr.
Winckler was incompetent to drive and that the condition of his hand was a
proximate cause of Ms. Mendonca’s death. Plaintiff offered no such
evidence for the court to consider. Plaintiff’s objections point to no part of
the record which identifies evidence creating a material fact issue for trial.
Plaintiff's arguments, without supporting evidence, are insufficient to create

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a genuine issue of material fact. Anderson, 477 U.S. at 256; Thomas, 483
F.3d at 527; Torgerson, 643 F.3d at 1042.
Plaintiff’s objection on this basis is overruled.
ORDER
Based on the above analysis, it is hereby
ORDERED that plaintiff’s objections (Docket 49) are overruled.
IT IS FURTHER ORDERED that the report and recommendation
(Docket 47) is adopted in full.
IT IS FURTHER ORDERED that defendant’s motion for summary
judgment (Docket 30) is granted.
IT IS FURTHER ORDERED that plaintiff’s amended complaint (Docket
19) as it relates to the second cause of action: negligent entrustment against
defendant Corpat, Inc., d/b/a Alamo/National Car Rental is dismissed with
prejudice.
Dated March 18, 2014.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

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