Opinion
4:20-CV-04171-KES
2023-08-01
Alexander LEVENE and David Husman, Plaintiffs, v. STAPLES OIL CO., INC. and Albertus Schelhaas, Defendants.
Scott G. Hoy, Hoy Trial Lawyers, Prof. L.L.C., Sioux Falls, SD, Danny R. Ellis, Pro Hac Vice, Truck Wreck Justice, PLLC, Chattanooga, TN, for Plaintiffs. Eric J. Steinhoff, Brandon D. Meshbesher, Lind Jensen, Sullivan & Peterson, P.A., Minneapolis, MN, for Defendants.
Scott G. Hoy, Hoy Trial Lawyers, Prof. L.L.C., Sioux Falls, SD, Danny R. Ellis, Pro Hac Vice, Truck Wreck Justice, PLLC, Chattanooga, TN, for Plaintiffs. Eric J. Steinhoff, Brandon D. Meshbesher, Lind Jensen, Sullivan & Peterson, P.A., Minneapolis, MN, for Defendants. ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT KAREN E. SCHREIER, UNITED STATES DISTRICT JUDGE
This case revolves around a motor vehicle collision on December 27, 2018 on I-90 in Minnehaha County, South Dakota. See Docket 37 ¶ 1. Plaintiffs, Alexander Levene and David Husman, sued Defendants, Staples Oil Co., Inc. and Albertus Schelhaas on numerous negligence counts and negligence per se counts. See Docket 1. Plaintiffs seek, among other relief, punitive damages. See id. Defendants move for partial summary judgment on the following claims: punitive damages, negligent hiring, negligent retention, negligent entrustment, negligent maintenance, negligent training, negligent supervision, negligence per se against Schelhaas for violation of SDCL §§ 32-18-26 and 49-28A, negligence per se for violation of federal regulations 49 C.F.R. §§ 173, 177.816(a)(3), 383, 390, 390.11, 392, 392.14, 393, 395, and 396. See Docket 30; Docket 39 at 15. For the following reasons, the court grants in part and denies in part defendants' motion for summary judgment.
The parties dispute whether plaintiffs appropriately pleaded their negligent supervision claim. The court addresses this issue below.
I. Factual Background
Viewing the record in the light most favorable to the non-moving parties, Levene and Husman, the court recites the following factual background:
On December 27, 2018, Levene drove a pick-up truck and Husman rode along in the passenger seat. Docket 37 ¶¶ 1-3. Levene and Husman eventually stopped on I-90 due to another vehicle blocking traffic. See id. ¶ 14. Plaintiffs' truck stopped on a downward slope. Id. ¶ 15. The roads were icy and slushy at the time of the crash. See Docket 40 ¶¶ 89-90; see also Docket 35-1 at 50.
Schelhaas, an employee of Staples Oil, was driving a tanker truck with 7,802 gallons of ethanol that weighed 78,000 pounds. Docket 40 ¶¶ 5, 83-84. Earlier in the day on December 27, 2018, he had talked with Staples Oil employees about whether he should drive given the weather conditions. See Docket 34-4 at 17-18. Staples Oil had delayed Schelhaas's departure time due to the weather. Id. at 18. Schelhaas and Staples Oil nonetheless decided to have Schelhaas drive later that day, even though both knew of the bad weather. See id. at 18.
While driving, Schelhaas saw the ice and slush on the roads. See id. at 12, 14. Schelhaas passed an exit ramp with a truck stop but did not use the ramp. Id. at 14. Eventually, Schelhaas drove up a blind hill. See id. at 15. Although Schelhaas testified that he drove between 40 and 45 miles per hour, a GPS monitoring system shows Schelhaas drove 57 miles per hour just before the crash. Id. at 15; Docket 35-1 at 26. Soon after driving up the hill, Schelhaas saw Levene and Husman's pickup truck about halfway down the hill but could not brake in time and ran into Levene and Husman's truck. See Docket 34-4 at 15.
At all times relevant to this litigation, Schelhaas was acting within the course and scope of his employment with Staples Oil. See id. at 6. When Staples Oil hired Schelhaas, Staples Oil showed Schelhaas a one-hour hazardous materials video and a roll-over video. Id. at 11, 16; Docket 35-1 at 20-21. Schelhaas completed a road test with Staples Oil. Id. at 11-12. Peter Bartelt, the Director of Transportation at Staples Oil, testified that Staples Oil holds official safety meetings "every three years." Docket 34-7 at 31. Adam Grill, plaintiff's expert, submitted an expert report opining that having safety meetings this infrequently constitutes a "breakdown in the training and communication processes utilizing the Safety Management Cycle[.]" See Docket 34-9 at 20. Grill further testified that the Safety Management Cycle "is a critical tool in the development and maintenance of a safe and responsible fleet." Id. at 18.
II. Legal Standard
Under Federal Rule of Civil Procedure 56(a), "[t]he court shall grant summary judgment 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." "[A] genuine issue of material fact exists if: (1) there is a dispute of fact; (2) the disputed fact is material to the outcome of the case; and (3) the dispute is genuine, that is, a reasonable jury could return a verdict for either party." Morrow v. United States, 47 F.4th 700, 704 (8th Cir. 2022) (alteration in original) (quoting RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 401 (8th Cir. 1995)). In reviewing the record, the court views the facts in the light most favorable to the non-moving party. Lissick v. Andersen Corp., 996 F.3d 876, 882 (8th Cir. 2021). While "[t]he mere existence of a scintilla of evidence in support of the [movant's] position will be insufficient[,]" Turner v. XTO Energy Inc., 989 F.3d 625, 627 (8th Cir. 2021), a party moving for summary judgment is not entitled to a judgment just because the facts he offers may appear to be more plausible or because the adversary may be unlikely to prevail at trial, see Handeen v. Lemaire, 112 F.3d 1339, 1354 (8th Cir. 1997).
III. 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). But if a state's supreme court "has not spoken on an issue, [federal courts] must predict how it would decide the issue[,]" and "may consider relevant state precedent, analogous decisions, considered dicta . . . and any other reliable data." Olmsted Med. Ctr. v. Cont'l Cas. Co., 65 F.4th 1005, 1008 (8th Cir. 2023) (quoting Brill ex rel. v. Mid-Century Ins. Co., 965 F.3d 656, 659 (8th Cir. 2020)). Here, the court is sitting in diversity and thus South Dakota substantive law applies. See Docket 1.
IV. Discussion
A. Punitive Damages
South Dakota law prohibits punitive damages unless the state legislature authorizes them. Dahl v. Sittner, 474 N.W.2d 897, 900 (S.D. 1991) (citing SDCL § 21-1-4). The jury may award punitive damages 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[.]" Dahl, 474 N.W.2d at 900 (quoting SDCL 21-3-2). The South Dakota Supreme Court has clarified that "[m]alice is an essential element of a claim for punitive damages." Smizer v. Drey, 873 N.W.2d 697, 703 (S.D. 2016) (citation omitted). A punitive damages claim may not be submitted to the jury unless the court finds by clear and convincing evidence that there is a reasonable basis to believe the defendant acted with malice. See SDCL § 21-1-4.1; Estate of Stengle by Stengle v. Walgreen Co., 2021 WL 858836, at *3 (D.S.D. 2021).
SDCL § 21-1-4.1's procedural requirement—namely, that the court must hold a hearing on whether there is clear and convincing evidence that a reasonable basis exists to believe punitive damages are appropriate before any discovery related to a claim may commence—does not bind federal courts. See Ammann v. Massey-Ferguson, Ltd., 933 F. Supp. 840, 842-43 (D.S.D. 1996).
Malice can be actual or presumed. Smizer, 873 N.W.2d at 703. "Actual malice is a positive state of mind, evidenced by the positive desire and intention to injure another, actuated by hatred or ill-will towards that person." Dahl, 474 N.W.2d at 900. Plaintiffs appear to concede that the record contains no evidence that defendants acted with actual malice towards plaintiffs. See Docket 36 at 16-20 (arguing only that defendants acted with presumed malice). Without evidence of actual malice, the court will permit punitive damages only if the record, viewed in the light most favorable to plaintiffs, shows clear and convincing evidence that defendants' actions were sufficient to presume their malice.
Presumed, legal malice may be inferred when the defendant acts willfully or wantonly to the injury of another. Dahl, 474 N.W.2d at 900. Malice cannot be presumed by "simply the doing of an unlawful or injurious act," but rather from acts that are "conceived in the spirit of mischief or of criminal indifference to civil obligations." Id. (quoting Hannahs v. Noah, 83 S.D. 296, 158 N.W.2d 678, 682 (1968)). Willful and wanton misconduct is behavior that demonstrates the defendant "consciously realized that his conduct would in all probability, as distinguished from possibility, produce the precise result which it did produce and would bring harm to the plaintiff." Flockhart v. Wyant, 467 N.W.2d 473, 478 (S.D. 1991) (quoting Tranby v. Brodock, 348 N.W.2d 458, 461 (S.D. 1984)). A claim for presumed malice can be shown by demonstrating a disregard for the rights of others. Id. Although whether one acts willfully or wantonly is normally a jury question, the conduct must be more than mere mistake, inadvertence, or inattention. See Gabriel v. Bauman, 847 N.W.2d 537, 542-43 (S.D. 2014). The court looks to an objective standard rather than a subjective standard in determining whether a jury could find the defendant acted willfully or wantonly. See id.
The South Dakota Supreme Court has found sufficient evidence that the defendant acted willfully or wantonly in causing an automobile accident in several cases. In Brewer v. Mattern, 85 S.D. 356, 182 N.W.2d 327 (1970), the Supreme Court found there was sufficient evidence for a jury to find the driver acted willfully and wantonly when the driver ignored warnings from a guest who was familiar with the road and road signs that the sloshy, gravel road curved while driving at least double the speed limit on a dark and rainy night. See id. at 329, 331. In Lukens v. Zavadil, 281 N.W.2d 78 (S.D. 1979), the Supreme Court held that a jury could find the driver acted willfully and wantonly where a 16-year-old defendant with limited driving experience consumed alcohol before driving, knew the vehicle's windshield wipers were not properly working, but still drove in the rain and late at night. See id. at 79. And in Flockhart, the court found there was "ample evidence" to find the driver "must have known, with substantial certainty, the danger that her conduct engendered" when she drank alcohol for hours before (and during) driving, knew she had to drive 50 miles, and had five previous alcohol related convictions and previously had completed drunk-driving classes. See 467 N.W.2d at 478.
At the same time, the South Dakota Supreme Court denied punitive damages in several car related accidents because the facts showed the driver was merely negligent. For example, in Smizer, the court affirmed a lower court order that denied punitive damages even though the driver admitted to driving through an intersection despite having an obstructed view of oncoming traffic and knowing it would be more difficult for her to stop because the road was gravel. See 873 N.W.2d at 704. And in Gabriel, the court found that a volunteer firefighter speeding on his way to a fire station in response to a 911 call did not act willfully or wantonly when he crashed into a vehicle that made a left turn into the intersection even though the driver was trained and instructed to obey the speed limit, and saw the plaintiff's vehicle at about 900 feet away but did not attempt to break until less than 100 feet before the collision. See 847 N.W.2d at 538, 542-43.
Although this inquiry is necessarily fact dependent, the above cases establish two important principles. First, the mere fact that a driver was speeding is insufficient to show the driver acted willfully and wantonly. See, e.g., id. at 543 ("[R]easonable persons under the same or similar circumstances present in this case would not have consciously realized that speeding would—in all probability—result in the accident that occurred."). Second, and perhaps more important to this case's resolution, is that the more foreseeable the specific risk was to the driver, the more likely the evidence is sufficient for a jury to presume malice. For example, the cases in which the South Dakota Supreme Court found punitive damages to be appropriate all involve situations where the driver knew in-advance several conditions that would increase the risk of an accident. See, e.g., Brewer, 182 N.W.2d at 329 (ignored several warnings of curved road, gravel and sloshy road, dark and rainy night, speeding); Lukens, 281 N.W.2d at 79 (inexperienced driver, drank alcohol before driving, knew of car's defective windshield wipers, drove in rain and late at night); Flockhart, 467 N.W.2d at 478 (drank before and during 50-mile drive, had been through drunk-driving classes before due to having five previous alcohol-related convictions). In contrast, the South Dakota Supreme Court denied punitive damages in cases where the driver, despite acting negligently, did not have significant in advance warning signs that would have alerted the driver to the probability of an accident. See Smizer, 873 N.W.2d at 704 (no evidence that driver knew of specific factors that made driving less safe prior to encountering intersection); Gabriel, 847 N.W.2d at 538, 542-43 (same). The South Dakota Supreme Court's language in Gabriel supports this second principle: in finding the driver did not act willfully or wantonly, the court stated, "[n]othing in the record can support a jury finding that [the driver] consciously realized, before it was too late to avoid the collision, that [the injured party] would in all probability turn in front of [the driver]." See id. at 543 (emphasis added).
Here, viewing the evidence in the light most favorable to plaintiffs, the court concludes that the record contains clear and convincing evidence that there is a reasonable basis to believe defendants consciously realized their conduct would in all probability lead to a car crash and thus acted with malice. See Flockhart, 467 N.W.2d at 478; SDCL § 21-1-4.1; Estate of Stengle, 2021 WL 858836, at *3. Schelhaas admitted that he had discussions with individuals from Staples Oil about whether he should drive because of the weather the morning of the accident. See Docket 34-4 at 17-18. Schelhaas also admitted that they knew there had been a winter storm that day and that Staples Oil even had delayed Schelhaas's departure time due to the weather. Id. at 18. Schelhaas and Staples Oil nonetheless decided to have Schelhaas drive later that day. See id. And Schelhaas and Staples Oil did not have Schlehaas drive any ordinary car. Instead, Schelhaas drove a tanker truck loaded with 7,802 gallons of ethanol weighing 78,000 pounds. Docket 40 ¶¶ 84-85.
Furthermore, while driving, Schelhaas knew the conditions of the road were bad: the road had ice and slush, which Schelhaas admitted he could see. Docket 34-4 at 12, 14; see also Docket 35-1 at 50. He acknowledged that he could have pulled off an exit ramp at a truck stop, but did not. Docket 34-4 at 14. He admitted that just prior to the crash, he was driving up a blind hill. See id. at 15. He also admitted to driving between 40 and 45 miles per hour, but according to a GPS monitoring system, Schelhaas drove 57 miles per hour just before the crash. Id. at 15; Docket 35-1 at 26.
While one or two of these factors may not be sufficient, on their own, to show clear and convincing evidence that a jury could reasonably conclude that Schelhaas' actions would probably lead to a crash, all of these factors combined are sufficient. The court places significant weight on the fact that a reasonable person, seeing the weather and the road conditions, could and should recognize that transporting a 78,000-pound truck up a blind hill at 57 miles per hour poses a significant risk of a crash. The uncertainty of what Schelhaas could encounter on the other side of the hill, paired with the icy road conditions and hard-to-stop heavy truck are all sufficient for a jury to find defendants acted with malice. Schelhaas and Staples Oil had multiple warning signs (the weather, the road conditions, the huge vehicle, the blind uphill drive), several opportunities to avoid such an accident (not driving in the first place, taking an exit and pulling into a truck stop once Schelhaas noticed ice on the road), and yet still decided to drive 57 miles per hour up the blind hill, unlike the accidents in Smizer and Gabriel. See Docket 40 at 24; Docket 34-4 at 14-15, 17-18; Docket 35-1 at 26; Smizer, 873 N.W.2d at 704 (no evidence that driver knew of specific factors that made driving less safe prior to encountering intersection); Gabriel, 847 N.W.2d at 538, 542-43 (same).
Defendants warn that if the court allows the jury to consider punitive damages in this case, where Schelhaas drove a large vehicle too fast given the conditions, "then every plaintiff in a rear-end motor vehicle accident involving a commercial vehicle would be allowed to claim punitive damages at trial." See Docket 39 at 16. But this warning is exaggerated, because the conditions here were not simply that the weather or roads were bad, but rather included the fact that Schelhaas knew of the bad weather in advance of even deciding to drive in the first place, Schelhaas had ample opportunity to stop driving or to pull off, and Schelhaas drove up a blind hill. Viewing the facts in the light most favorable to plaintiffs, this case is distinguishable from an ordinary car accident that resulted from a driver's mere negligence.
Defendants also cite Tranby, 348 N.W.2d 458, in support of their argument. See Docket 39 at 16-17. In Tranby, a teenager (the defendant) drove with two other teenagers (one of them being the plaintiff) on a straight, level, and dry gravel road. See id. at 459-60. The driver drove at most 10 miles per hour over the speed limit. Id. at 461. The driver also consumed seven beers over the span of about four hours. See id. The plaintiff had also consumed multiple beers and acknowledged that the beer did not affect him nor did it appear to affect the defendant's driving. See id. The Tranby court found that there was no evidence that the defendant driver acted with willful and wanton misconduct because there was no evidence that the driver "disregard[ed] warnings of obviously hazardous circumstances." See id. Defendants argue that similar to the driver in Tranby, the undisputed facts at most show that Schelhaas could have known an accident was possible, not probable, because Schelhaas did not drive over the speed limit, he was confronted with stopped traffic on the other side of a hill, and the accident occurred on a downward slope, making it difficult for the driver to stop. See Docket 39 at 17. But here, unlike in Tranby, viewing the evidence in the light most favorable to plaintiffs, defendants "disregard[ed] warnings of obviously hazardous circumstances" by deciding to drive a massive commercial vehicle carrying thousands of gallons of ethanol, not pulling over when confronted with bad road conditions, and driving 57 miles per hour up a blind hill. This case is distinguishable from Tranby.
In short, the court finds that viewing the record in the light most favorable to plaintiffs, a jury could reasonably find that defendants acted with malice because defendants consciously disregarded that Schehaas's conduct would probably lead to an accident. See Flockhart, 467 N.W.2d at 478. The court denies defendants' motion for summary judgment on punitive damages.
B. Count I Negligent Hiring, Entrustment, Retention, Maintenance Supervision and Training Against Staples Oil
1. Hiring, Entrustment, Retention, Maintenance
Plaintiffs do not oppose defendants' motion for summary judgment on plaintiff's negligent hiring, entrustment, retention, and maintenance claims. See Docket 36 at 1-2. Thus, the court grants summary judgment on these claims.
2. Supervision
Defendants argue that plaintiffs failed to properly plead negligent supervision and thus the claim is not properly before the court. See Docket 39 at 20-21. Rule 8(a) of the Federal Rules of Civil Procedure requires complaints to contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "Although the pleading requirements under Rule 8(a) are relatively permissive, the essential function of notice pleading is to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests' " WireCo WorldGroup, Inc. v. Liberty Mut. Fire Ins. Co., 897 F.3d 987, 992 (8th Cir. 2018) (alteration in original) (emphasis omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). This standard is "low." See N. States Power Co. v. Fed. Transit Admin., 358 F.3d 1050, 1056-57 (8th Cir. 2004). In WireCo WorldGroup, the Eighth Circuit, reviewing for abuse of discretion, affirmed the district court's decision not to consider new grounds for relief on the plaintiff's breach of contract claim because the plaintiff had never raised that ground prior to resisting the defendant's motion for summary judgment. See 897 F.3d at 992-93. The Eighth Circuit observed that the complaint "was specific as to the nature, bases, and grounds of [the defendant]'s alleged breaches of contract." Id. at 993. Because of these specified grounds, the Eighth Circuit reasoned that the defendant "was not required to intuit additional theories of liability that were not apparent from [the plaintiff's] complaint." Id. Similarly in Northern States Power, the Eighth Circuit agreed with the district court's decision to not allow the plaintiffs to rely on a claim when it resisted summary judgment because "[t]here [was] simply nothing alleged in the Complaint that would have notified the Defendants of this claim." See 358 F.3d at 1057.
"The federal rules effectively abolish the restrictive theory of the pleadings doctrine, making it clear that it is unnecessary to set out a legal theory for the plaintiff's claim for relief." Johnson v. City of Shelby, 574 U.S. 10, 12, 135 S.Ct. 346, 190 L.Ed.2d 309 (2014) (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1219 (3d ed. 2004)). The federal rules "evince a belief that when a party has a valid claim, he should recover on it regardless of his counsel's failure to perceive the true basis of the claim at the pleading stage, provided always that a late shift in the thrust of the case will not prejudice the other party in maintaining a defense upon the merits." See 5 Federal Practice and Procedure § 1219 (4th ed. 2023) (footnotes omitted). Although there may be cases "in which an alteration in legal theory would work to the prejudice of the opposing party in a way that cannot be rectified by an appropriate court order[,]" such instances are "very rare." See id.
Here, plaintiffs specified the legal theory of their negligence claim in a header that stated "Negligent Hiring, Training, Entrustment, Retention and Maintenance[.]" See Docket 1 at 4. Underneath the heading, plaintiffs alleged that Staples Oil "failed to set a safety procedure to ensure Defendant Schelhaas complied with the dictates of the [Federal Motor Carrier Safety Regulations]" and that Staples Oil "had a duty to promulgate and enforce rules and regulations to ensure its drivers and vehicles were reasonabl[y] safe, and negligently failed to do so." Id. ¶¶ 45-46.
Defendants argue that these allegations "provide no notice to Defendants that Plaintiffs intended to pursue a claim for negligent supervision . . . ." Docket 39 at 20 (emphasis omitted). But although plaintiffs do not explicitly include the word "supervise" or "supervision," in their complaint, the court finds that plaintiffs' allegation that Staples Oil failed to enforce rules and regulations to ensure its drivers were reasonably safe is sufficient to put defendants on notice of their claims such that it would not unfairly prejudice defendants. In other words, unlike in Northern States Power where there was "simply nothing alleged in the Complaint that would have notified the Defendants of this claim[,]" these allegations sufficiently notify defendants that plaintiffs intended to pursue a claim alleging that Staples Oil did not properly establish rules—or enforce them—to ensure its drivers were reasonably safe. See Northern States Power, 358 F.3d at 1057. These factual allegations fall squarely within plaintiffs' theory that Staples Oil failed to properly supervise Schelhaas. Plaintiffs' complaint meets the "low standard" of Rule 8(a). Id. Thus, the court rejects defendants' arguments that plaintiffs failed to properly plead this theory of negligence. And because defendants do not contest that the record contains sufficient evidence that a reasonable jury could find Staples Oil negligently failed to supervise its drivers, the court denies summary judgment on plaintiff's negligent supervision claim. See Docket 39 at 20-21 (arguing only that plaintiffs failed to properly plead negligent supervision).
3. Training
Under South Dakota law, "[i]n order to prevail in a suit based on negligence, a plaintiff must prove duty, breach of that duty, proximate and factual causation, and actual injury." Hanson v. Big Stone Therapies, Inc., 916 N.W.2d 151,158 (S.D. 2018) (quoting Hamilton v. Sommers, 855 N.W.2d 855, 861 (S.D. 2014)). A negligent training claim "suggests that the manner or circumstances of the employee's training by the employer inadequately or defectively coached, educated, or prepared its employees for the performance of their job duties." Kirlin v. Halverson, 758 N.W.2d 436, 452 (S.D. 2008)(emphasis omitted).
The court first considers whether expert testimony is required to support plaintiffs' negligent training claim against Staples Oil. Defendants argue that summary judgment is appropriate on plaintiffs' negligent training claim because plaintiffs do not support it with adequate expert testimony. See Docket 31 at 14 n.3; Docket 39 at 21. Plaintiffs do not dispute defendants' claims that plaintiffs' negligent training claim requires expert testimony, but instead argues that their expert—Adam Grill's—opinion is sufficient. See Docket 36 at 7-13.
"Generally, expert testimony is required in negligence cases when the defendant is held to a standard of care that is outside the common knowledge and experience of ordinary persons." Hanson, 916 N.W.2d at 159 (quoting 65A C.J.S. Negligence § 930 (Updated March 2018)). The key inquiry in deciding whether a plaintiff must provide expert testimony on a negligence claim is whether a reasonable lay person would have sufficient knowledge of the standard of care, and whether such a person could determine that the defendant breached that standard. See Luther v. City of Winner, 674 N.W.2d 339, 344 (S.D. 2004).
Neither party cites, and the court is unaware of, any South Dakota Supreme Court cases dealing with whether an expert is required to testify to a company's duty of care with respect to training commercial truck drivers. Although the court can safely conclude that a lay person could recognize that a company that provides no training at all to any of its drivers—regardless of their incoming experience or qualifications—would be negligent, this case does not involve such an extreme scenario. See id. (". . . [A]n expert witness may not be required when a plaintiff is alleging that a surgeon cut off the wrong limb; a layperson would know based on their common knowledge whether such a surgery was negligent."); Docket 37 ¶¶ 23-26, 28, 35 (plaintiffs admitting that Schelhaas had a commercial driver's license, completed training through a vocational school, had training on how to drive a tanker truck, worked from 2014-2018 at a different company driving a tanker truck, watched two training videos related to driving when hired by Staples Oil, and completed a road test with Staples Oil). Because a lay person does not commonly encounter the truck industry's standard of care for the amount of training a truck company should provide to commercial drivers—especially drivers such as Schelhaas who had previous experience and training with commercial driving—the court predicts that the Supreme Court of South Dakota would require plaintiffs to introduce expert testimony on this subject. Cf. Burley v. Kytec Innovative Sports Equip., Inc., 737 N.W.2d 397, 407-08 (S.D. 2007) (requiring expert testimony on plaintiff's defective product design and manufacture claim because "[w]hether a manufacturer knew or should have known of a particular risk involves technical issues which do not easily admit to evidentiary proof and which lie beyond the comprehension of most jurors.").
A party who resists summary judgment must rely on admissible evidence, and so the court must determine whether plaintiffs offer admissible expert opinion on the issue of whether Staples Oil was negligent in its training of Schelhaas. See In re Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d 604, 613 (8th Cir. 2011) ("[W]e require district courts to rely only on admissible evidence at the summary judgment stage[.]"). Federal Rule of Evidence 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.The court must determine whether the expert's testimony is reliable and relevant. See In re Wholesale Grocery Prods. Antitrust Litig., 946 F.3d 995, 1000 (8th Cir. 2019). "To satisfy the reliability requirement, the proponent of the expert testimony must show by a preponderance of the evidence both that the expert is qualified to render the opinion and that the methodology underlying his conclusions is scientifically valid." Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 757-58 (8th Cir. 2006). Determining whether testimony is reliable and relevant "is a flexible one designed to 'make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.' " In re Wholesale, 946 F.3d at 1000 (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)).
The court finds that for purposes of summary judgment, viewing the facts in the light most favorable to the plaintiffs, Grill has extensive experience in the trucking industry, including teaching courses on truck safety, training and supervising truck drivers, training instructors, and other related items. See Docket 34-9 at 6-7. Grill is a member of multiple professional associations related to the trucking industry and has served as an expert witness concerning the standard of care of commercial vehicle operators and motor carriers. See id. Thus, Grill is qualified to render an opinion regarding the proper training commercial truck companies should give its drivers.
Grill also lists the standard customs and practices in the trucking industry, including publications and materials produced by motor carrier industry sources, and how industry experts routinely rely on such materials for purposes of safety and training. See id. at 7-8. As it relates specifically to the standard of training truck companies should give its drivers, Grill lists multiple responsibilities that, in his expert opinion, Staples Oil was required to follow in order to align with industry standards. See id. at 13-21.
Defendants argue that Grill's report fails to set forth an expert opinion on whether Staples Oil breached its duty of care by failing to adequately train Schelhaas. See Docket 31 at 13-16; Docket 39 at 22-23. But on pages 18-20 of Grill's expert report, he lays out certain practices, part of the "Safety Management Cycle" (SMC), that truck companies can use to effectively manage its drivers. See id. at 18-20. Grill points out that the SMC "is a critical tool in the development and maintenance of a safe and responsible fleet." Id. at 18. According to Grill, SMC involves six cyclical systems, including "training and communication," and that "[a] breakdown in one or more of these cyclical steps will cause a breakdown in the safety management for the motor carrier, and ultimately have a negative impact on a desired safety culture." Id. Grill sets forth the SMC's expectations for "training and communication" with respect to training drivers. Id. at 19. One of the expectations is for truck companies to "[r]einforce training about safe driving policies, procedures, and responsibilities to drivers, dispatchers, and other employees, using job aids, post-training testing, and/or refresher training. Encourage informal feedback among them so that they can help each other to improve." Id. at 20.
Grill then applied this standard to his review of this case. Grill opined,
In the above examples, there are variances based on the specific BASIC category being addressed. However, the underlying principles remain the same, and show some of the more critical points that a motor carrier must focus on as it relates to training and communication. Any motor carrier that chooses to disregard the warning signs of these breakdowns of communication and training is willingly choosing risk over safety.Id. at 20.
A breakdown in the training and communication processes utilizing the Safety Management Cycle can also be found in Bartelt's deposition transcript when he states that there is no safety training except for the hazmat training necessary every three years as stated above. Only verbal communication with drivers.
Here, viewing the facts in the light most favorable to plaintiffs, Grill concluded that Staples Oil failed to follow industry standards of training and communication because Staples Oil failed to reinforce its training and safety procedures, and instead held a hazmat training session every three years. Id. For purposes of summary judgment, the court finds this testimony meets Rule 702's requirements for admission. With respect to Rule 702(a), Grill has the appropriate expertise and foundation to opine on whether Staples Oil appropriately followed industry standards with respect to training its drivers. See id. at 6-7. Grill also meets Rule 702(b) because he based his testimony on "the facts and materials provided to [him] in this case . . . [which is] in conjunction with industry customs and standards as practiced in the trucking industry." See id. at 34. Similarly, Rule 702(c) is satisfied because the method that Grill used to reach his opinions "[is] consistent with the methods and process by which a truck safety professional such as [himself] would ordinarily use in conducting an accident investigation and crash preventability determination during the normal scope of business as a motor carrier." Id. Finally, viewing Grill's report in the light most favorable to plaintiffs, Grill reliably applied the methods to the facts of the case because he "reli[ed] on various peer reviewed sources" and based his opinions on "the totality of [his] experience, education, and training[.]" Id.
Defendants resist this conclusion, arguing that Grill's opinion that Staples Oil failed to properly reinforce and communicate its training with its drivers "is not based in fact" because "[t]here is no dispute that Staples provided training during Schelhaas' orientation that included written materials, instructional videos, a road test, and ride-along observations." See Docket 31 at 15-16. But this argument is better saved for the jury rather than the court on summary judgment because at this stage, the court must view the facts in the light most favorable to plaintiffs. Grill correctly identified and recounted that Bartelt, the Director of Transportation at Staples Oil, testified that Staples Oil only holds official safety meetings "every three years." Docket 34-7 at 31. Thus, viewing Grill's opinion in the light most favorable to plaintiffs, Grill's opinion is reliable. The court rejects defendants' first argument.
Defendants also contend that Grill "does not attempt to connect this alleged deficiency to the accident at issue or actually express any opinion that Staples's training was below the industry standard." Docket 31 at 16. But Grill opined later in his report that "[a]ccording to industry standards, this collision was preventable on the part of Staples Oil and Defendant Schelhase [sic]." See Docket 34-9 at 33. While Grill perhaps could have been more specific with this causation analysis, the court finds it sufficient for purposes of summary judgment because, viewing his report as a whole, Grill concluded that Staples Oil failed to properly communicate and reinforce its training with its drivers in violation of industry standard, and this failure contributed to the accident being preventable. See id. at 20, 33. Grill reinforces this interpretation by opining that "Staples Oil is responsible for developing a safety control system that detects careless or reckless driving performance and trains drivers on safe, defensive, and proper CMV operation." Id. at 32. The court finds that for purposes of summary judgment, Grill adequately connected his opinion regarding Staples Oil's deficient communication and training with the crash.
Finally, defendants' argument that Grill "did not actually express any opinion that Staples Oil's training was below the industry standard" contradicts Grill's report. Grill stated that the SMC "is a critical tool in the development and maintenance of a safe and responsible fleet." See id. at 18. Further, the U.S. Department of Transportation's Federal Motor Carrier Safety Administration developed the SMC. See id. at 4, 18. And Grill also stated that "motor carriers who allow drivers to operate commercial trucks have specific requirements and Safety Management Controls . . . including . . . "[t]he company's compliance with federal, state, county, and local regulations utilizing the [SMC] that complies with the recommendations of the [Federal Motor Carrier Safety Administration] for reasonably safe motor carriers." Id. at 12 (emphasis added). Putting these observations together, Grill's report, viewed in the light most favorable to plaintiffs, shows that Grill testified that following the SMC is part of the industry standard for all truck driving companies.
Not only did Grill adequately state that following the SMC is required to comply with industry standards, but Grill also concluded that Staples Oil failed to abide by the SMC. Specifically, Grill concluded that Staples Oil failed to reinforce its training and safety procedures, and instead held a hazmat training session only once every three years. See id. at 20. Thus, the court finds plaintiffs' expert report sufficient for them to survive summary judgment on their claim that Staples Oil negligently failed to train its employees. The court denies summary judgment on this count.
In denying summary judgment, the court does not consider plaintiffs' arguments about what Staples Oils allegedly did or did not do after Schelhaas crashed into plaintiffs' car, such as the disciplinary action and remedial steps Staples Oil took to address Schelhaas's actions. See Docket 36 at 12. Defendants argue that this evidence is not admissible under Rule 407. See Docket 39 at 23. Because the court does not consider this evidence at this stage, the court need not yet rule on whether this evidence is admissible.
C. Negligence Per Se
The South Dakota Supreme Court has "consistently held that 'an unexcused violation of a statute enacted to promote safety constitutes negligence per se." Thompson v. Summers, 567 N.W.2d 387, 393 (S.D. 1997) (quoting Bell v. E. River Elec. Power Coop., Inc., 535 N.W.2d 750, 755 (S.D. 1995)). If a plaintiff succeeds on a negligence per se claim, the question of whether the defendant breached a duty of care does not go to the jury, but the plaintiff still must prove causation and damages. See Stensland v. Harding Cnty., 872 N.W.2d 92, 95-96 (S.D. 2015).
1. 49 C.F.R §§ 392.14 , 390.11, 392, SDCL § 49-28A-3
49 C.F.R § 392.14 provides:
Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated. Whenever compliance with the foregoing provisions of this rule increases hazard to passengers, the commercial motor vehicle may be operated to the nearest point at which the safety of passengers is assured.Defendants first argue that plaintiffs' negligence per se claim against Staples Oil with respect to 49 C.F.R. § 392.14 must be dismissed because "Staples was not present in the vehicle with Schelhaas at the time of the accident" and thus "only [Schelhaas] could have determined whether extreme caution was necessary at the time." See Docket 31 at 21-22. But 49 C.F.R. § 390.11 expressly rejects this argument. Section 390.11 states that whenever a duty "in this subchapter . . . is prescribed for a driver or a prohibition is imposed upon the driver, it shall be the duty of the motor carrier to require observance of such duty or prohibition." 49 C.F.R. § 390.11 is in Subchapter B entitled "Federal Motor Carrier Safety Regulations," and Subchapter B in turn contains 49 C.F.R. § 392.14. Thus, because 49 C.F.R. 390.11 imposes on a motor carrier such as Staples Oil the duty to ensure its drivers observe duties listed in Subchapter B, and because 49 C.F.R. § 392.14 is part of Subchapter B, 49 C.F. § 390.11 requires Staples Oil to ensure its drivers follow 49 C.F.R. § 392.14. As a result, the court rejects defendants' argument that Staples Oil cannot be held liable for violating 49 C.F.R. § 392.14 based solely on the fact that Staples Oil was not in the vehicle when Schelhaas drove the truck.
Defendants next argue that 49 C.F.R. § 392.14 cannot form the basis of a negligence per se argument against either Staples Oil or Schelhaas because the South Dakota legislature did not enact SDCL § 49-28A-3, which in turn adopts 49 C.F.R. § 392.14, to promote public safety as is required by the South Dakota Supreme Court. See Docket 31 at 22. Under South Dakota law, "where a particular statutory or regulatory standard is enacted to protect persons in the plaintiff's position or to prevent the type of accident that occurred, and the plaintiff can establish this relationship to the statute, unexplained violation of that standard renders the defendant negligent as a matter of law." Davies v. GPHC, LLC, 980 N.W.2d 251, 263 (S.D. 2022) (quoting Lovell v. Oahe Elec. Coop., 382 N.W.2d 396, 397-98 (S.D. 1986)).
Here, the South Dakota State legislature "adopt[ed] . . . Title 49 of the Code of Federal Regulations, subtitle B, chapter III, subchapter B . . . parts 390 to 397, inclusive[,]" with certain amendments that do not apply here. See SDCL § 49-28A-3. Section 49-28A-3 further states that "[a]ny violation of . . . parts 390 to 396, inclusive . . . is a Class 2 misdemeanor." Id. This statute explicitly frames these regulations as "motor carrier safety requirements." Id. (emphasis added). The Eighth Circuit has also recognized that 49 C.F.R. § 392.14 "[was] designed to protect against the possibility that as conditions become hazardous the truck driver will be more prone to lose control of his vehicle and cause an accident." Labbee v. Roadway Express, Inc., 469 F.2d 169, 171-72 (8th Cir. 1972). And viewing the evidence in the light most favorable to the plaintiffs, a jury could find that Schelhaas failed to exercise extreme caution in the hazardous weather conditions, as 49 C.F.R. § 392.14 requires. Docket 34-4 at 12-15; Docket 35-1 at 26. Because the South Dakota legislature has explicitly stated that it adopted 49 C.F.R. § 392.14 out of concern for safety and because the federal regulation itself was designed to promote safety in the context of truck drivers operating a vehicle in hazardous conditions, the court rejects defendants' argument that 49 C.F.R. § 392.14 cannot provide the basis of negligence per se liability.
Drawing on cases outside of South Dakota, defendants argue that to show the statute was enacted to promote public safety, the statute at issue must "evince a clear and unambiguous legislative desire to establish civil liability." See Docket 31 at 22 (quoting Cooper v. Eagle River Mem'l Hosp., Inc., 270 F.3d 456, 460 (7th Cir. 2001)). Defendants cite Cooper, a Seventh Circuit case that dealt with Wisconsin substantive law. 270 F.3d at 460. Wisconsin law requires that negligence per se is appropriate only when "there is some expression of legislative intent that the statute become a basis for the imposition of civil liability." Id. (quoting Antwaun A. v. Heritage Mut. Ins. Co., 228 Wis.2d 44, 596 N.W.2d 456, 466 (1999)). This requirement is met "only when the legislature unambiguously demonstrates an intent to alter the common law standards[.]" Id. Because "[t]he administrative code provisions at issue . . . [were] clearly regulatory in nature and d[id] not reveal the clear and unambiguous language necessary to impose civil liability[,]" the Seventh Circuit affirmed the district court's refusal to instruct the jury using negligence per se jury instructions. See id. at 461.
Unlike Wisconsin law, the South Dakota Supreme Court has not explicitly required that there be evidence that the South Dakota legislature intended to "alter the common law standards." See Cooper, 270 F.3d at 460-61. Rather, South Dakota law requires only that the statute or regulation be "enacted to protect persons in the plaintiff's position or to prevent the type of accident that occurred, and the plaintiff can establish this relationship to the statute[.]" Davies, 980 N.W.2d at 263. Thus, because the South Dakota legislature adopted the federal regulation to "protect against the possibility that as conditions become hazardous the truck driver will be more prone to lose control of his vehicle and cause an accident[,]" negligence per se is appropriate in this case. See Labbee, 469 F.2d at 171-72.
But even if the South Dakota Supreme Court were to adopt a similar test to the one in Wisconsin—namely, requiring that the legislature alter the common law standard such that the legislature intended the statute to become a basis for imposing civil liability—negligence per se would still apply. See Cooper, 270 F.3d at 460. In addition to adopting 49 C.F.R. § 392.14, the South Dakota legislature also adopted 49 C.F.R. § 392.2, which in turn provides:
Every commercial motor vehicle must be operated in accordance with the laws, ordinances, and regulations of the jurisdiction in which it is being operated. However, if a regulation of the Federal Motor Carrier Safety Administration imposes a higher standard of care than that law, ordinance or regulation, the Federal Motor Carrier Safety Administration regulation must be complied with.See also SDCL § 49-28A-3. Thus, the South Dakota legislature's adoption of this regulation that expressly "imposes a higher standard of care than [state law]" satisfies Wisconsin's test set forth in Cooper because the regulation at issue, 49 C.F.R. § 392.14, alters South Dakota's common law duty by requiring "extreme caution" in hazardous conditions rather than the general ordinary care required under ordinary negligence. See Cooper, 270 F.3d at 460; 49 C.F.R. § 392.14 (emphasis added); Millea v. Erickson, 849 N.W.2d 272, 276 (S.D. 2014) (observing South Dakota negligence law requires only that individuals exercise ordinary care). In short, Cooper does not alter the court's analysis.
Similarly, defendants cite various Texas court decisions that have found that 49 C.F.R. § 392.14 cannot provide a basis for negligence per se claims under Texas law. See Docket 31 at 23. Defendants also cite a decision from the District of Montana involving Montana state law and a Virginia Supreme Court decision. See id. at 23-24 (citing Parrick ex rel. Parrick v. FedEx Ground Package Sys., 2010 WL 3614119, at *1-2 (D. Mont. Aug. 3, 2010) and Kimberlin v. PM Transp., Inc., 264 Va. 261, 563 S.E.2d 665, 668-69 (2002)). None of these cases change the court's analysis. First, the Texas and Montana cases are distinguishable because the state legislatures in Texas and Montana did not adopt 49 C.F.R. § 392.14 into state law. See Freudiger v. Keller, 104 S.W.3d 294, 297-98 (Tex. App. 2003) (noting that only the Texas Department of Public Safety had adopted the federal regulation and refusing a negligence per se instruction because there was "neither a legislative enactment nor a finding by a court in a civil case that the regulation creates a special standard of care"); Parrick, 2010 WL 3614119, at *2 (noting Montana substantive law that "violations of administrative regulations that are not specifically incorporated by statute do not constitute negligence per se" and thus denying negligence per se claims for alleged violations of Federal Motor Carrier Safety Regulations). But as discussed above, the South Dakota legislature did adopt 49 C.F.R. § 392.14. See SDCL § 49-28A-3. As a result, these Texas and Montana cases are distinguishable. Finally, the Virginia Supreme Court decision in Kimberlin provided little analysis or reasoning in declaring that 49 C.F.R. § 392.14 "simply creates an expanded duty of care for the operation of commercial motor vehicles under the conditions stated therein" and thus alleged violations of the regulation did not constitute negligence per se. 563 S.E.2d at 668-69. Kimberlin does not undermine the court's reasoning or discussion and thus the court declines to follow it.
In summary, the court rejects defendants' arguments that the plaintiffs' negligence per se claims with respect to 49 C.F.R. § 392.14 must be dismissed. The court denies summary judgment on this count.
Furthermore, the court denies summary judgment on plaintiffs' 49 C.F.R. § 390.11 negligence per se claim because as discussed above, 49 C.F.R. § 390.11 is a provision that imposes a duty on motor carriers to require its drivers to observe 49 C.F.R. § 392.14. Thus, plaintiffs' 49 C.F.R. § 392.11 negligence per se claim against Staples Oil is directly related to their negligence per se claim regarding 49 C.F.R. § 392.14. In other words, without § 390.11, § 392.14 could be understood to only impose liability against a driver of a commercial vehicle and not against a motor carrier. But because § 390.11 makes clear that motor carriers must require its drivers to abide by § 392.14, the regulations effectively not only prescribe who has a duty (i.e. motor carriers), but what the duty is as well (i.e. requiring drivers to abide by federal safety regulations). The court denies summary judgment on plaintiffs' negligence per se claims under 49 C.F.R. § 390.11.
The court also rejects defendants' arguments regarding 49 C.F.R. § 392. The court recognizes that plaintiffs' complaint merely alleges that defendants are liable for negligence per se for violating 49 C.F.R. § 392 without specifying which provision plaintiffs allege defendants violated. See Docket 1 ¶ 68(f). But here, in addition to alleging a violation of 49 C.F.R. § 392 and § 392.14, plaintiffs allege that Staples Oil failed "to properly train its oil truck drivers to insure [sic] the safety of citizens on the roads, interstates, and highways." See id. ¶¶ 21, 68. Plaintiffs also allege that Schelhaas drove an oil tanker on an icy road and that Schelhaas slammed into plaintiffs. See id. ¶¶ 25-28. Section 392.1 instructs that "[e]very motor carrier . . . and [its] employees responsible for the . . . driving of commercial motor vehicles, or the . . . supervising . . . [or] training . . . of drivers[ ] shall be instructed in and comply with the rules in this part." As discussed above, 49 C.F.R. § 392.14 requires drivers to exercise "extreme caution" when confronted with hazardous conditions. The court finds that plaintiffs sufficiently pleaded facts that put defendants on notice of plaintiffs' claim with respect to 49 C.F.R. § 392.1, which requires motor carriers to both instruct its drivers on 49 C.F.R. § 392.14 and to ensure its drivers comply with the same. See 49 C.F.R. § 392.14; Navelski v. Int'l Paper Co., 2018 WL 11413303, at *2 (N.D. Fla. Feb. 16, 2018) (discussing Federal Rule of Procedure 8(a) requires plaintiffs alleging negligence per se to "allege either: (1) the specific statute, regulation, or ordinance that the defendant allegedly violated; or (2) particular facts that make clear what statute, regulation, or ordinance is alleged to have been violated." (collecting cases)); see also Welch v. Loftus, 776 F. Supp. 2d 222, 225-26 (S.D. Miss. 2011) ("So long as the Complaint alleges particular conduct that clearly violates a statute or regulation, it pleads negligence per se with sufficient particularity."). This conclusion aligns with the Eighth Circuit's recognition that Rule 8(a)'s pleading requirements impose a "low" standard. See Northern States Power Co., 358 F.3d at 1056-57. The court denies summary judgment with respect to plaintiffs' negligence per se claims for 49 C.F.R. 392 but limits such claims to 49 C.F.R. §§ 392.1 and 392.14.
Similarly, SDCL § 49-28A-3, adopts 49 C.F.R. § 392.140 and in doing so establishes a legal duty that drivers and motor carriers in the state of South Dakota must abide by as a matter of state law. Because plaintiffs' 49 C.F.R. § 392.14 negligence per se claims survive, so too must their SDCL § 49-28A-3 claims. Defendants appear to acknowledge this reality in their reply brief. See Docket 39 at 23 n.2 ("As Plaintiffs note, SDCL § 49-28A[-3] merely adopts the FMCSR. Therefore, the negligence per se analysis set forth below with respect to the FMCSR also applies to SDCL § 49-28A[-3].). The court denies summary judgment for both defendants with respect to plaintiffs' negligence per se claims under SDCL § 49-28A-3.
2. 49 C.F.R. § 383
Defendants argue that plaintiffs' negligence per se claim regarding 49 C.F.R. § 383 must fail because it is too general. Docket 31 at 19-20. Defendants further state that plaintiffs' response in opposing summary judgment similarly "fails to identify which particular provision of Section 383 they believe Defendants violated and fails to articulate how any provision was violated." See Docket 39 at 24. But like the court's analysis of plaintiffs' 49 C.F.R. § 392 negligence per se claims, the court finds plaintiffs sufficiently put defendants on notice with respect to two specific provisions within 49 C.F.R. § 383. Contrary to defendants' claim, plaintiffs in their response did specifically cite §§ 383.110 and 383.111, which both deal with the knowledge and skills that drivers must have, both generally and in hazardous road conditions. See Docket 36 at 22. Because these requirements apply to Schelhaas directly and to Staples Oil through 49 C.F.R. § 390.11 as discussed above, and because a jury could reasonably find that Schelhaas lacked the knowledge and skills required under these provisions, the court denies summary judgment on plaintiffs' 49 C.F.R. § 383 negligence per se claim but limits such claim to §§ 383.110 and 383.111.
Plaintiffs also cite 49 C.F.R. § 383.1(a), which simply states the purpose of the regulations contained in § 383. Docket 36 at 22. This specific provision does not impose any duties on any individual and thus one cannot violate it. A provision that cannot be violated cannot serve as a basis for a negligence per se claim. See Thompson v. Summers, 567 N.W.2d at 393 ("[A]n unexcused violation of a statute enacted to promote safety constitutes negligence per se." (emphasis added and citations omitted)). The court grants summary judgment in favor of defendants with respect to 49 C.F.R. § 383.1(a).
3. 49 C.F.R. § 390
Defendants move for summary judgment on plaintiffs' negligence per se claim with respect to 49 C.F.R. § 390, arguing that plaintiffs improperly pleaded this count because § 390 is a general section that contains all of the Federal Motor Carrier Safety Regulations. See Docket 31 at 20. Plaintiffs do not dispute this argument, and point only to 49 C.F.R. § 390.11, the regulation that requires motor carriers to ensure drivers observe the duties prescribed by the regulations. See Docket 36 at 22-23. As discussed above, the court denied summary judgment for 49 C.F.R. § 390.11. Plaintiffs' 49 C.F.R. § 390.11 negligence per se claim appears to already capture the thrust of their 49 C.F.R. § 390 negligence per se claim. Keeping plaintiffs' § 390 claim appears to be superfluous. Thus, the court grants defendants' motion for summary judgment on plaintiffs' 49 C.F.R. § 390 negligence per se claim.
4. SDCL § 32-18-26 , 49 C.F.R. §§ 173, 177.816(a)(3), 393, 395, and 396
Defendants move for summary judgment on SDCL § 32-18-26, 49 C.F.R. §§ 173, 177.816(a)(3), 393, 395, and 396. See Docket 30. Plaintiffs have withdrawn their claims under these sections. See Docket 36 at 20 n.4. Thus, the court grants summary judgment on these sections.
V. Conclusion
In conclusion, the court denies defendants' motion for summary judgment on punitive damages. The court grants defendants' motion for summary judgement on plaintiffs' negligent hiring, entrustment, retention, and maintenance claim, but denies summary judgment on plaintiffs' negligent supervision and training claim. The court denies defendants' motion for summary judgment on plaintiffs' negligence per se claims with respect to 49 C.F.R §§ 392.14, 390.11, 392, and SDCL § 49-28A-3, and limits plaintiffs' 49 C.F.R. § 392 negligence per se claim to 49 C.F.R. §§ 392.1 and 392.14. The court denies defendants' motion for summary judgment on plaintiffs' negligence per se claim under 49 C.F.R. § 383 negligence but limits it to §§ 383.110 and 383.111. The court grants defendants' motion for summary judgment on plaintiffs' 49 C.F.R. § 390 negligence per se claim. The court grants defendants' summary judgment on plaintiffs' negligence per se claims under SDCL § 32-18-26 and 49 C.F.R. §§ 173, 177.816(a)(3), 393, 395 and 396.
For the above reasons, it is ORDERED:
(1) That defendants' motion for summary judgment is GRANTED in part and DENIED in part; (2) That defendants' motion for summary judgment on punitive damages is DENIED; (3) That defendants' motion for summary judgment on Count I with respect to negligent hiring, entrustment, retention, and maintenance is GRANTED; (4) That Staples Oil's motion for summary judgment on plaintiffs' negligent supervision and training claims are DENIED; (5) That defendants' motion for summary judgment on plaintiffs' negligence per se claims with respect to 49 C.F.R. §§ 392.14, 390.11, 392, and SDCL § 49-28A-3 are DENIED, with the plaintiffs' 49 C.F.R. § 392 negligence per se claim being limited to 49 C.F.R. §§ 392.1 and 392.14; (6) That defendants' motion for summary judgment on plaintiffs' 49 C.F.R. § 383 negligence per se claim is DENIED but limited to §§ 383.110 and 383.111; (7) That defendants' motion for summary judgment on 49 C.F.R. § 390 is GRANTED; and (8) That defendants' motion for summary judgment on Count III negligence per se claims with respect to SDCL § 32-18-26 and 49 C.F.R. §§ 173, 177.816(a)(3), 393, 395 and 396 is GRANTED.