Nicolay v. Stukel
2017 SD 45
S.D.2017Background
- On Jan. 31, 2011, Nicolay’s pickup was struck from behind by Stukel while both were passing a snow-plow on I-29; collision occurred in North Dakota and Stukel was cited for unsafe passing.
- Weather: cold with east‑to‑west wind creating a snow "fog" behind the plow that obscured visibility; Nicolay was traveling much slower (≈35–45 mph) and had reduced speed before passing; Stukel was driving ≈60 mph when he entered the fog and struck Nicolay.
- Nicolay sued for negligence and negligence per se; Stukel asserted defenses including contributory negligence and sudden emergency; summary judgment on liability was denied and the case proceeded to jury.
- At deposition, Patrolman Huwe reviewed a newspaper article to refresh his recollection about whether Nicolay said he was "not actively passing;" Nicolay objected; Huwe later acknowledged his recollection after reviewing the article.
- Nicolay’s treating neurosurgeon, Dr. Doran, testified about surgery linking Nicolay’s back problems to the accident; cross‑examination probed Nicolay’s preexisting neck/shoulder issues and prior surgery; the court allowed the cross‑examination and ordered Stukel to pay part of the cost to continue the deposition, which was later reversed on appeal.
- Jury found for Stukel (not negligent); Nicolay appealed summary‑judgment denial, new trial denial, admission of Huwe deposition, and the expert‑fee allocation; the court affirmed all rulings except it reversed the order requiring Stukel to pay a portion of Nicolay’s expert fee.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment on Stukel’s liability should have been granted | Nicolay: Stukel negligently passed in reduced-visibility snow fog and couldn’t stop within his range of vision; statutory violation = negligence per se | Stukel: factual issues exist about visibility, reasonableness of passing, and contributory negligence; citation alone doesn’t establish negligence per se | Denied — genuine fact issues for jury; negligence not established as a matter of law and contributory negligence remained for jury consideration |
| Whether trial court erred denying a new trial for insufficient evidence | Nicolay: verdict against weight of evidence; no non‑negligent explanation offered | Stukel: testimony provided non‑negligent explanation and issues of reasonableness were for jury | Denied — jury verdict sustainable on evidence; no abuse of discretion by trial court |
| Whether admission/use of Patrolman Huwe’s deposition (after refreshing with newspaper) was improper hearsay | Nicolay: showing article improperly introduced Nicolay’s statement and created inadmissible evidence | Stukel: article was used only to refresh Huwe’s recollection; refreshed testimony was Huwe’s own memory | Denied — use to refresh recollection permissible; testimony post‑review reflected witness’s own recollection |
| Whether the court properly required Stukel to pay part of Nicolay’s expert fee for continuing Dr. Doran’s deposition | Nicolay: cross‑examination exceeded scope and should have made Dr. Doran effectively Stukel’s witness, so Stukel should pay | Stukel: cross‑examination stayed within scope (probing preexisting conditions relevant to causation/credibility) | Reversed in part — cross‑examination was within scope, so trial court erred by allocating part of expert fee to Stukel; Nicolay, as calling party, is responsible for expert fee |
Key Cases Cited
- Nugent v. Quam, 82 S.D. 583, 152 N.W.2d 371 (rule requiring driver to keep lookout and be able to avoid accidents within range of vision)
- Runge v. Prairie States Ins. of Sioux Falls, 393 N.W.2d 538 (S.D. 1986) (limits to a strict "stop within vision" rule; reasonableness and circumstances matter)
- Baddou v. Hall, 756 N.W.2d 554 (S.D. 2008) (refusal to adopt presumption of negligence simply from occurrence of a rear‑end collision)
- Carpenter v. City of Belle Fourche, 609 N.W.2d 751 (S.D. 2000) (denial of summary judgment can be reviewed on appeal from final judgment)