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Rice v. North Star Energy & Construction, LLC

United States District Court, D. North Dakota

December 31, 2019

Justin Rice, Plaintiff,
v.
North Star Energy & Construction, LLC, Daniel Plote, individually, and Daniel Plote d/b/a River Aggregates, LLC, Defendants,

          ORDER ON MOTIONS

          DANIEL L. HOVLAND, DISTRICT JUDGE.

         Before the Court is the Defendants Daniel Plote and Daniel Plote d/b/a River Aggregates, LLC's (collectively “River Aggregates”) motion for summary judgment filed on July 31, 2018. See Doc. No. 102. The Plaintiff, Justin Rice, filed a response in opposition to the motion on September 21, 2018. See Doc. No. 107. River Aggregates filed a reply brief on October 11, 2018. See Doc. No. 111. Also before the Court is Defendant North Star Energy & Construction, LLC's (“North Star”) motion for summary judgment filed on July 15, 2019. See Doc. No. 117. The Plaintiff filed a response in opposition to the motion on August 23, 2019. See Doc. No. 125. North Star filed a reply brief on September 13, 2019. See Doc. No. 129. For the reasons set forth below, the River Aggregates' motion is GRANTED and North Star's motion is DENIED.

         I. BACKGROUND

         On the morning of August 23, 2014, Justin Rice was driving a tractor-trailer semi hauling a single tanker trailer filled with fresh water, headed eastbound on County Road 12, in McKenzie County, North Dakota. County Road 12 is a gravel road also referred to as 34th Street N.W. or Route 12. At the same time, another truck was driving westbound on County Road 12. In order to avoid a collision, Rice drove his vehicle toward the shoulder of the road. As Rice's vehicle reached the shoulder of the road, the gravel road gave way pulling his vehicle into the south ditch. The vehicle rolled and Rice was severely injured.

         Gravel was recovered from the scene of the accident on November 4, 2014, by Ross Rosshoven. See Doc. Nos. 64-4 and 107-4. The gravel was subjected to sieve analysis testing by defense expert David Daubert. See Doc. No. 107-1. Daubert concluded that the gravel on the road and shoulder “did not meet the appropriate classification for gravel for the road surface in question” and “created an unnecessary hazard to the traveling public.” See Doc. No. 107-1. In his affidavit, Daubert stated “[i]t has been my experience that class 5 is the only material used as the surface course.” See Doc. No. 126-1, ¶ 3. North Star's expert, Gregory Johnson, has opined that the testing done by Daubert was flawed and the gravel on the road was not deficient. See Doc. No. 126-2. McKenzie County engineer, Suhail Kanwar, testified at his deposition that McKenzie County prefers to use class 13 gravel, as opposed to class 5, for the surface on gravel roads. See Doc. No. 103-2, p. 29. Kanwar also testified that McKenzie County uses class 5 gravel as a base underneath blacktop. See Doc. No. 103-2, p. 48.

         Records from McKenzie County and River Aggregates show River Aggregates supplied large amounts of class 13 gravel to McKenzie County during April and May 2013 which was stockpiled at McKenzie County's Watford City shop yard and/or the Watford City stockpile. See Doc. Nos. 103-3, pp. 1 and 18; 103-1, ¶ 6(a) and 6(b); 66-23, pp. 16-20. River Aggregates also supplied McKenzie County with class 5 gravel in late 2013 and 2014 which was stockpiled at McKenzie County's Watford City stockpile. See Doc. No. 103-3, pp. 30, 37, 54, and 82; 103-1, ¶¶ 6(c), 6(d), 6(e), and 6(f). The Watford City shop yard is located approximately 25 miles from the accident site on County Road 12. See Doc. No. 108-2. River Aggregates was at no time charged with placing gravel on or maintaining County Road 12.

         Rice contends River Aggregates provided the gravel and base used on County Road 12, had a “duty to provide proper gravel, ” a “duty to ensure that the gravel being provided afforded a safe roadway surface for vehicles, ” and the failure to do so caused Rice severe injuries. See Doc. No. 83, ¶¶ 12-14. River Aggregates has moved for summary judgment contending there is no evidence that it sold McKenzie County the wrong gravel and there is no evidence the gravel River Aggregates sold McKenzie County was used on County Road 12.

         McKenzie County contracted with North Star to perform maintenance work on County Road 12 in 2013 and 2014. See Doc. Nos. 66-12, p. 2; 66-7, p. 1. In 2013, North Star maintained, bladed, watered, and provided gravel for County Road 12. The contract required North Star to “blade and maintain Route 12 and Route 6 for eight weeks” and to “place 80, 000 tons of aggregate on Routes 6 and 12.” See Doc. No. 66-12, p. 2. North Star's project manager for the County Road 12 work in 2013, Matthew Garland, testified the gravel North Star placed on County Road 12 in 2013 was sourced from the Lahtinen pit which was leased by North Star. See Doc. No. 119-4, pp. 9-11. The 2014 contract required North Star to blade, water, and maintain County Road 12 but did not require it to place any additional gravel on the road. See Doc. No. 66-7.

         Rice contends North Star had a duty to “provide the proper gravel for use on the roadway surface” and a duty to “ensure that the roadway surface was properly maintained.” See Doc. No. 83, ¶¶ 10 and 11. Rice further contends that North Star breached these duties resulting in Rice being injured. North Star contends in its motion for summary judgment that it owed no duty to Rice, did not provide improper gravel for or improperly maintain County Road 12, and its actions were not the proximate cause of Rice's injuries.

         II. STANDARD OF REVIEW

         Summary judgment is appropriate when the evidence, viewed in a light most favorable to the non-moving party, indicates that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. Davison v. City of Minneapolis, Minn., 490 F.3d 648, 654 (8th Cir. 2007); see Fed.R.Civ.P. 56(a). Summary judgment is not appropriate if there are factual disputes that may affect the outcome of the case under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is genuine if the evidence would allow a reasonable jury to return a verdict for the non-moving party. Id. The purpose of summary judgment is to assess the evidence and decide whether there is a genuine need for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         The Court must inquire whether the evidence presents a sufficient disagreement to require the submission of the case to a jury or whether the evidence is so one-sided that one party must prevail as a matter of law. Diesel Mach., Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 832 (8th Cir. 2005). The moving party bears the responsibility of informing the court of the basis for the motion and identifying the portions of the record which demonstrate the absence of a genuine issue of material fact. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011). The non-moving party may not rely merely on allegations or denials in its own pleading; rather, its response must set out specific facts showing a genuine issue for trial. Id.; Fed.R.Civ.P. 56(c)(1). If the record taken as a whole and viewed in a light most favorable to the non-moving party could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial and summary judgment is appropriate. Matsushita, 475 U.S. at 587. The court must consider the substantive standard of proof when ruling on a motion for summary judgment. Anderson, 477 U.S. at 252.

         III. LEGAL DISCUSSION

         Because this case is a diversity action, the Court will apply the substantive law of the forum state, in this case North Dakota. See N. Oil & Gas, Inc. v. Moen, 808 F.3d 373, 376 (8th Cir. 2015). In North Dakota, “[n]egligence consists of a duty on the part of an allegedly negligent party to protect the plaintiff from injury, a failure to discharge the duty, and a resulting injury proximately caused by the breach of ...


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