United States District Court, D. North Dakota
ORDER ON MOTIONS
L. HOVLAND, DISTRICT JUDGE.
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
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.
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.
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.
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.
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.
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.
STANDARD OF REVIEW
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).
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.
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 ...