Higgins v. Upshaw Consulting Services, LLC et al
Filing
139
AMENDED ORDER granting 133 Motion for Summary Judgment. Signed by U.S. District Judge Jeffrey L. Viken on 5/5/20. (SB) Mailed to Jesse Higgins on 5/5/2020 (MSB).
Case 5:16-cv-05010-JLV Document 139 Filed 05/05/20 Page 1 of 8 PageID #: 650
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CIV. 16-5010-JLV
JESSE HIGGINS,
Plaintiff,
AMENDED ORDER
vs.
UPSHAW CONSULTING SERVICES,
LLC,
Defendant.
INTRODUCTION
Plaintiff Jesse Higgins brought this personal injury diversity action
relating to an injury he suffered while working on an oil rig. (Docket 43). The
only defendant remaining in this action is Upshaw Consulting Services, LLC.
The court previously granted summary judgment in favor of Upshaw’s
co-defendants, Continental Resources, Inc. (“Continental”) and Fluid End Sales,
Inc. d/b/a Five Star Rig & Supply (“Five Star”). (Docket 129). As recounted in
the court’s previous summary judgment order, plaintiff is proceeding pro se and
is presently incarcerated. Id. at p. 1.
Upshaw filed its motion for summary judgment on February 27, 2020.
(Docket 133). Under this court’s local rules, plaintiff had 21 days to respond to
the motion. D.S.D. Civ. LR 7.1(B). He did not file a response or request an
extension of the response deadline.
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For the reasons explained below, the court grants summary judgment to
Upshaw.
I.
Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(a), a movant is entitled to
summary judgment if the movant can “show 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). 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). Only disputes over facts which might affect the outcome of the case
under the governing substantive law will properly preclude summary judgment.
Id. at 248. “[T]he mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of material fact.”
Id. at 247-48 (emphasis in original).
If a dispute about a material fact is genuine, that is, if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party, then
summary judgment is not appropriate.
Id.
However, the moving party is
entitled to judgment as a matter of law if the nonmoving party failed to “make a
sufficient showing on an essential element of [his] case with respect to which [he]
has the burden of proof.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
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In such a case, “there can be ‘no genuine issue as to any material fact,’ since a
complete failure of proof concerning an essential element of the nonmoving
party’s case necessarily renders all other facts immaterial.”
Id. at 323.
In determining whether summary judgment should issue, the facts and
inferences from those facts must be viewed in the light most favorable to the
nonmoving party.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587-88 (1986). The key inquiry is “whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.”
Anderson, 477 U.S.
at 251-52.
These standards govern despite plaintiff’s failure to respond to the pending
summary judgment motions.
See Mack v. Dillon, 594 F.3d 620, 622 (8th Cir.
2010). “Summary judgment must be denied even if no opposing evidentiary
matter is presented” if the moving party cannot meet the Rule 56 standard.
Heath v. John Morrell & Co., 768 F.2d 245, 249 (8th Cir. 1985).
II.
Facts
The general facts of this case are set out in the court’s previous summary
judgment order.
(Docket 129 at pp. 2-5). The facts added here pertain to
Upshaw’s alleged role in the oil rig accident. They are derived from Upshaw’s
statement of undisputed material facts and supporting record evidence.
(Dockets 135 & 136). Upshaw’s statement of undisputed material facts is
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deemed admitted because plaintiff failed to controvert it. Fed. R. Civ. P. 56(e)(2);
D.S.D. Civ. LR 56.1(D).
Although Upshaw nowhere explains the nature of its business, the court
gathers it provides rig safety inspections to Continental.
Brandon Upshaw, an
Upshaw employee, inspected the rig upon which plaintiff was injured on January
21, 2014. (Dockets 135 at ¶ 5 & 136-4 at p. 7).
A rig inspection can take
anywhere from six to ten hours. (Docket 135 at ¶ 10).
Inspectors evaluate rig
conditions with reference to “best practices[,]” including standards from the
Occupational Safety and Health Administration and oil industry groups. Id. at
¶ 27. Mr. Upshaw had “several hundred hours” of experience “in the drilling rig
inspection process[.]”
Id. at ¶ 9.
Mr. Upshaw inspected the wireline unit that injured plaintiff. (Docket
136-4 at p. 7). He marked the unit as “R” with no comments.
p. 5).
(Docket 136-6 at
“R” means that the equipment was not “rigged up” or “fully assembled
and ready for operation at the time of the inspection.” (Docket 135 at ¶¶ 11-12).
An “R” marking for the wireline unit “indicate[s] the owner of the rig should verify
and inspect the unit to make sure all control levers are functional and labeled”
and “secure to the floor and line guide guarded.”
Id. at ¶ 13.
The wireline unit injured plaintiff on February 7, 2014. (Docket 129 at
p. 4).
Plaintiff alleged Upshaw “undertook to perform the duty owed to [him[ to
provide safe tools and a safe workplace.” (Docket 43 at ¶ 41). Plaintiff further
asserts Upshaw breached this duty by negligently failing to “identify as a safety
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deficiency the fact that the wireline unit was not appropriately anchored to the
floor” and “the fact that the controls on the wireline unit were not labeled to
inform the user of the direction to turn the governor valve to slow and stop the
unit.”
¶ 49.
Id. at ¶ 43.
He alleges Upshaw’s negligence caused his injuries.
Id. at
Plaintiff did not notice any expert witnesses in support of his case.
Id. at
¶ 26.
III.
Analysis
Upshaw moves for summary judgment on two grounds. First, it asserts it
owed plaintiff no legal duty. (Docket 134 at pp. 3-6). Second, it argues plaintiff
needs expert testimony to prove the standard of care governing its work.
Id. at
pp. 6-7. Because plaintiff noticed no experts, Upshaw contends, he cannot
prove it breached a duty of care to him in its inspections.
Id.
The court,
assuming without deciding that Upshaw owed a duty to plaintiff, concludes
plaintiff cannot prove a breach of that duty without expert testimony.
In a suit alleging professional negligence, as in all “suit[s] based on
negligence, a plaintiff must prove duty, breach of that duty, proximate and
factual causation, and actual injury.”
N.W.2d 698, 702 (S.D. 2015).
Johnson v. Hayman & Assocs., Inc., 867
The scope of the applicable duty is defined, at
least in part, by the standard of care governing the professional’s work.
Mid-W.
Elec., Inc. v. DeWild Grant Reckert & Assocs. Co., 500 N.W.2d 250, 254 (S.D.
1993). At trial, plaintiff would have to show the jury what standard of care
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governed oil rig safety inspections and prove Upshaw’s inspection of the rig in
question breached that standard.
“[E]xpert testimony is required to establish the standard of care for a
professional unless the issue is within the common knowledge of the jury.”
Luther v. City of Winner, 674 N.W.2d 339, 344 (S.D. 2004). The court finds
most jurors would not be familiar enough with oil rig inspections to determine,
based only on their own experience, whether Upshaw breached the applicable
standard of care.
A review of two of this district’s past cases concerning necessary expert
testimony illuminate the present issue. In Flora v. Custer Regional Medical
Clinic, the court determined expert testimony was not required for a jury to
determine whether a landowner negligently operated a public entryway.
CIV. 06-5031, 2008 WL 4724316 at *8 (D.S.D. Oct. 24, 2008). The plaintiff
asserted the negligent design of a handicapped entrance to the building in
question caused her to fall.
Id. at *1. The court held whether the entrance was
negligently designed was “within the common knowledge of jurors.”
Id. at *8.
In contrast, the court held expert testimony was required in City of
Spearfish v. Duininck, Inc., 5:14-CV-5039, 2016 WL 4133517 (D.S.D. Aug. 3,
2016). In that case, a landscape architect and contractor were involved in
constructing a pond on a golf course in soil containing gypsum.
Id. at *1. The
gypsum dissolved upon contact with water, causing a liner under the pond to
fail.
Id.
The court concluded “a lay person would have no insight regarding the
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appropriate response to encountering gypsum during construction of a pond on
a golf course.”
Id. at *5.
This case resembles Duininck more than Flora.
The specialized
knowledge necessary in this case contrasts with the experience needed in Flora.
Virtually all potential jurors have encountered building entrances.
But few
jurors will be familiar with oil rig inspection standards, just as few would have
had any knowledge about the effect of gypsum on pond construction in
Duininck. Plaintiff cannot establish the relevant inspection standards with his
own lay testimony. An expert will be needed to explain to the jury what Upshaw
should have done with respect to the allegedly deficient wireline unit.
It is
uncontested that plaintiff failed to notice any experts, nor has he asked
permission to extend the deadline.
The court finds plaintiff cannot show Upshaw breached any duty it may
have had. The court grants summary judgment to Upshaw.
IV.
Conclusion
The court acknowledged in the first summary judgment order that “the
one-sided nature of the record likely distorts what appears to be a complex
personal injury case that could have been, in other circumstances,
meritorious.” (Docket 129 at p. 16). As with the prior order, this order “is of
no precedential value” in future cases concerning necessary expert testimony.
Id.
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ORDER
For the reasons given above, it is
ORDERED that Upshaw’s motion for summary judgment (Docket 133)
is granted.
Dated May 5, 2020.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
UNITED STATES DISTRICT JUDGE
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