APPEAL FROM THE MARION SUPERIOR COURT. The Honorable David A. Shaheed, Judge. Cause No. 49D01-1102-CT-7083.
ATTORNEY FOR APPELLANT: C. DENNIS WEGNER, C. Dennis Wegner & Associates, P.C., Indianapolis, Indiana.
ATTORNEY FOR APPELLEE: RAYMOND T. SEACH, Riley Bennett & Egloff, LLP, Indianapolis, Indiana.
BROWN, Judge. BARNES, J., and BRADFORD, J., concur.
In this interlocutory appeal, Randall Manson appeals from the trial court's January 31, 2014 rulings that the law of South Dakota is applicable in this case and that he is not entitled to summary judgment with respect to his alleged contributory negligence. Manson raises two issues, which we revise and restate as:
I. Whether the court properly concluded that the substantive law of South Dakota rather than Indiana is applicable in this cause; and
II. Whether the court erred in denying Manson's cross-motion for summary judgment alleging he was not contributorily negligent as a matter of law under the law of South Dakota.
FACTS AND PROCEDURAL HISTORY
On August 14, 2010, Mark Keglovits, his wife Patricia, and Manson, each of whom resided in Indiana, loaded motorcycles into Mark's trailer, hitched the trailer to his Silverado truck, and left Mark's home on the south side of Indianapolis for the Sturgis Motorcycle Rally in Sturgis, South Dakota. Manson rode in the pickup truck with Mark and Patricia. Another couple, Pamela and Tony Craig, planned to follow Mark to South Dakota. Patricia fell asleep in the back seat of the truck, and Manson fell asleep in the front passenger seat. At approximately 4:30 a.m. on August 15, 2010, Mark fell asleep at the wheel causing the truck to leave the roadway on Interstate 90 in South Dakota and to roll.
On February 24, 2011, Manson filed a complaint for damages in Indiana against Mark in which he alleged that Mark failed to keep his vehicle under reasonable control, causing it to leave the roadway and overturn, and that as a result Manson suffered bodily injury. On November 9, 2012, Mark filed an answer in which he raised affirmative defenses, alleging in part that the laws of South Dakota apply and that Manson was contributorily negligent under South Dakota law.
On August 1, 2013, Mark filed a motion for judicial notice of South Dakota law and for partial summary judgment requesting that the trial court find that South Dakota law applies to this case, along with a brief in support of the motion and a designation of evidence. In his brief, Mark argued that Manson promised to help him stay awake as he drove through the night to the motorcycle rally in Sturgis, South Dakota, that Manson broke his promise and fell asleep in the front passenger seat of the truck, and that Mark also fell asleep and his truck left the roadway resulting in a roll over.
Mark's designated evidence included his affidavit, the affidavit of his wife Patricia, and the deposition of Pamela Craig. In his affidavit, Mark stated in part that he " invited [Manson] to accompany [Mark and Patricia] on the trip so that [Manson] could help [Mark] with the driving responsibilities," that " [i]n the late evening hours of August 14, 2010, [Patricia] asked [Manson]
to stay awake with [Mark] as [he] drove through the night and to help keep [him] awake, and [Manson] agreed to do so," that " [i]n the early morning hours of August 15, 2010, [Manson] fell asleep in the front passenger seat of [the] truck," and that Mark " briefly fell asleep causing [the] vehicle to leave the roadway and to roll." Appellant's Appendix at 38-39. Patricia stated in part in her affidavit that she asked Manson to help Mark " with the driving and to stay awake with him as he drove through the night, and [Manson] told [her] that he would do so" and that Manson " did not keep his word and fell asleep." Id. at 41.
On September 30, 2013, Manson filed a motion in opposition to Mark's August 1, 2013 motion and a cross-motion for partial summary judgment together with a memorandum in support of his motions and a designation of evidence. In his memorandum, Manson argued that South Dakota law did not apply, that Mark chose to concoct a theory of contributory negligence out of thin air, that the allegation that Manson breached a promise to Patricia is not an allegation of negligent conduct but an allegation that he failed to fulfill a contractual promise, and that if the law of contracts is involved there is no evidence that South Dakota contract law is any different from Indiana contract law. With respect to his cross-motion for summary judgment, Manson argued that the designated evidence shows as a matter of law that Mark cannot prove Manson acted unreasonably in failing to warn Mark to stay awake and thus that Mark is not entitled to proceed on a contributory negligence defense.
Manson's designated evidence included his affidavit and portions of the depositions of Mark and Pamela Craig. In his affidavit, Manson stated in part that " [a]t no time did [Mark] or Patricia  ever say that they wanted [him] to accompany them so that [he] could help Mark  with the driving responsibilities," that " [i]n previous years, [Manson] rode with Mr. and Mrs. Keglovits on two trips to Florida which were just as far as the trip to Sturgis," that Mark " drove his pickup truck with an old one-axle trailer the entire time on both trips," that Mark " did not want anyone else to drive," that Patricia had told him on the morning of August 14, 2010 before the trip that Mark " was going to drive the first 10 hours of the trip and then [Manson] was to drive," that " [n]othing else was said about driving responsibilities," that Patricia never asked him to stay awake during the night time hours of the trip, and that he had asked Mark if he needed help and Mark replied " No, I told you, it's all downhill from now on." Id. at 107-108. Manson also stated that, after their final rest stop, Mark " was listening to a CD of some man reading a book," that Manson " was not interested in hearing the CD, so [he] began listening to music on [his] MP3 player," and that " [t]hat is the last thing [he] recall[ed] before waking up outside of the truck and lying on the ground in pain." Id. at 108-109.
During his deposition, Mark stated that Patricia had a conversation with Manson when they stopped for dinner at a restaurant and that Patricia had asked Manson to keep him awake and that Manson agreed. When asked what state the restaurant was in, Mark stated he was not sure. When asked " how long was it" between that dinner and the accident, Mark answered " I would say maybe eight hours." Id. at 134. When asked " it's fair to say this . . . conversation . . . that took place at a restaurant, was not in the state of South Dakota," Mark replied " No." Id. When asked ...