Wildeboer v. South Dakota Junior Chamber of Commerce, Inc.

• Decision Date: 26 March 1997
• Docket Number: No. 19461,19461
• Citation: 561 N.W.2d 666,1997 SD 33
• Parties: John and Gloria WILDEBOER, as conservators of Jonathan Wildeboer, a minor, Plaintiffs and Appellants, v. The SOUTH DAKOTA JUNIOR CHAMBER OF COMMERCE, INC.; George R. Fink d/b/a The Bar; Bill Debondt d/b/a Bill's Bar; Dennis Eliason d/b/a The Only One Lounge; Burt's Lounge, Inc.; and John Doe d/b/a The Wheel, Defendants and Appellees.
• Court: South Dakota Supreme Court

Page 666

561 N.W.2d 666

1997 SD 33

John and Gloria WILDEBOER, as conservators of Jonathan Wildeboer, a minor, Plaintiffs and Appellants, v. The SOUTH DAKOTA JUNIOR CHAMBER OF COMMERCE, INC.; George R. Fink d/b/a The Bar; Bill Debondt d/b/a Bill's Bar Dennis Eliason d/b/a The Only One Lounge; Burt's Lounge Inc.; and John Doe d/b/a The Wheel, Defendants and Appellees.

No. 19461.

Supreme Court of South Dakota.

Argued Oct. 22, 1996.

Decided March 26, 1997.

Steven M. Johnson & Chad W. Swenson of Johnson, Heidepriem, Miner & Marlow, Sioux Falls, for plaintiffs and appellants.

Michael L. Luce & Melissa Hinton of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for appellee SD Junior Chamber of Commerce, Inc.

Gary P. Thimsen & Peter Sommervold of Woods, Fuller, Shultz & Smith, Sioux Falls, for appellee Fink.

Kenneth D. Bertsch & Tracy Niemann of Ulmer, Hertz & Bertsch, Menno, for appellee Debondt.

William C. Garry of Cadwell, Sanford, Deibert & Garry, Sioux Falls, for appellee Eliason.

Richard L. Travis & John Billion of May, Johnson, Doyle and Becker, Sioux Falls, for appellee Burt's Lounge.

Gary J. Pashby & Lisa Hansen Marso of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, for appellee John Doe.

SABERS, Justice.

¶1 Justice Richard W. Sabers delivers the majority opinion of the Court on Issue 1, which affirms the trial court's issuance of summary judgment in favor of appellee South Dakota Junior Chamber of Commerce, Inc.

¶2 Justice David Gilbertson delivers the majority opinion of the Court on Issue 2, which affirms the trial court's issuance of summary judgment in favor of appellee establishments licensed to sell alcoholic beverages.

¶3 SABERS, Justice, writing the majority opinion on Issue 1, which affirms the trial court's issuance of summary judgment in favor of appellee South Dakota Junior Chamber of Commerce, Inc.

¶4 Wildeboers brought an action against the South Dakota Junior Chamber of Commerce (SDJCC) and five small town bars for negligence in causing the accident which left their fifteen-year-old son severely burned and disfigured. They argue the defendants worked together to organize, sponsor, and promote the "poker run" that led to the accident. Summary judgment was granted to all defendants and Wildeboers appeal.

FACTS

¶5 On June 20, 1992, the Harrisburg chapter (Harrisburg chapter) of the SDJCC sponsored a charitable poker run with five scheduled stops at bars in Harrisburg, Canton, Hudson, Beresford, and Lennox. ¹ Proceeds were to go to families in need in the Harrisburg area. To participate in a poker run, contestants visit each bar and receive a playing card, or in this case a token to later be exchanged for a playing card. ² At the end of the run, individuals who have drawn the best poker hands win prizes. Primarily a social event for motorcycle enthusiasts, the majority of the participants were motorcyclists.

¶6 Randy Borgheiinck and Linda Kiousis registered for the poker run in Harrisburg and proceeded to the next stop, Canton, on Borgheiinck's 1978 Harley Davidson Lowrider motorcycle. They continued on the established route, visiting the designated bars in Canton, Hudson, and Beresford. While the record does not reflect the precise amount of alcohol consumed by either, one witness observed them drinking wine coolers in Beresford before they left for the fifth stop in Lennox. Unfortunately, they never made it there.

¶7 As they and three other motorcyclists raced north on Highway 17 at speeds estimated between 75 and 100 miles per hour, Jonathan Wildeboer was traveling south on the same highway, preparing to make a left turn onto Lincoln County Road # 128. He turned his pickup in front of the Borgheiinck motorcycle. The subsequent crash and explosion of the pickup's gas tank claimed the lives of Borgheiinck and Kiousis. Wildeboer suffered severe and disfiguring second and third degree burns over his entire body.

¶8 Jonathan Wildeboer's parents sued the SDJCC and the five bars (Bars) for negligence in organizing, sponsoring, and promoting the poker run. ³ They did not sue the Harrisburg chapter or its individual members. The Wildeboers claim the SDJCC and the Bars are at fault for "encouraging the consumption of alcohol and high speed operation of motorcycles."

STANDARD OF REVIEW

¶9 Our standard of review for summary judgment is well-established:

In reviewing a grant or a denial of summary judgment under SDCL 15-6-56(c), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper.

Lamp v. First Nat'l Bank of Garretson, 496 N.W.2d 581, 583 (S.D.1993) (citation omitted).

¶10 "The burden of proof is upon the movant to show clearly that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law." State Dep't of Revenue v. Thiewes, 448 N.W.2d 1, 2 (S.D.1989) (citation omitted). "Summary judgment is generally not feasible in negligence cases because the standard of the reasonable man must be applied to conflicting testimony.... It is only when the evidence is such that reasonable men can draw but one conclusion from facts and inferences that they become a matter of law and this occurs rarely." Lamp, 496 N.W.2d at 583 (citing Trammell v. Prairie States Ins. Co., 473 N.W.2d 460, 462 (S.D.1991) (quoting Wilson v. Great N. R.R. Co., 83 S.D. 207, 212-13, 157 N.W.2d 19, 22 (1968) (citations omitted))). "Resolving negligence questions is an elemental jury function[.]" Robbins v. Buntrock, 1996 SD 84, p 8, 550 N.W.2d 422, 425.

¶11 The trial court stated in its order granting summary judgment that "there is no genuine issue of material fact that would sustain any theory of liability or recovery against Defendants[.]" "A surmise that a party will not prevail upon trial is not sufficient basis to grant the motion on issues which are not shown to be sham, frivolous or so unsubstantial that it is obvious it would be futile to try them." Wilson, 83 S.D. at 212, 157 N.W.2d at 21 (footnote & citation omitted).

¶12 1. The SDJCC

¶13 Wildeboers claim the SDJCC failed to properly investigate the poker run prior to its occurrence and failed to prohibit or supervise alcohol-related charitable events. These omissions, they argue, constituted a breach of its duty of ordinary care. "Duty may be imposed by common law or by statute." Poelstra v. Basin Elec. Power Coop., 1996 SD 36, p 11, 545 N.W.2d 823, 826 (citation omitted). SDCL 20-9-1 provides:

Every person is responsible for injury to the person, property, or rights of another caused by his willful acts or caused by his want of ordinary care or skill, subject in the latter cases to the defense of contributory negligence.

This statute is "a simple codification of the common law of negligence." In re Certif. of Questions of Law (Knowles v. United States), 1996 SD 10, p 21, 544 N.W.2d 183, 188 (citing Baatz v. Arrow Bar, 426 N.W.2d 298, 304 (S.D.1988)) (other citations omitted). In Poelstra, we noted this statute does not define the circumstances under which the law imposes a duty on an alleged tortfeasor, but "simply recognizes the right of injured persons to recover from wrongdoers who fail to exercise ordinary care." 1996 SD 36 at p 13, 545 N.W.2d at 826.

¶14 Wildeboers do not claim any other statute imposes a duty on SDJCC to monitor and supervise the local chapters' activities. "Whether a common-law duty exists depends on the foreseeability of injury." Id. at p 16, 545 N.W.2d at 826-27 (citations omitted).

¶15 The primary organizers of the poker run were the members of the Harrisburg chapter of the SDJCC; they are not named defendants in this suit. We affirm the dismissal of the suit against the SDJCC because that organization, a legal entity separate from the Harrisburg chapter, had no knowledge, input, or responsibility with respect to the poker run. The SDJCC gave local chapters advice and suggestions for projects designated as "priority projects," but those were primarily non-moneymaking ventures such as "Punt, Pass, and Kick."

¶16 Daron Bunger served twice as president for the Harrisburg chapter, and he testified: 1) All planning for charitable events was done strictly on the local level; 2) no rules, regulations, or guidelines regarding charitable endeavors were issued by the SDJCC; 3) approval from the SDJCC was neither sought nor required to undertake a charitable project; 4) the idea for the 1992 poker run came from a member of the Harrisburg chapter, not the SDJCC; 5) the SDJCC did not receive any proceeds from the poker run; 6) the program sponsored by the SDJCC where local chapters could vie for awards ("Parade of Chapters") was strictly optional, and involved chapters submitting reports to the SDJCC to detail past, not future events. Jim Aalbers, another former officer of the Harrisburg Chapter, basically corroborated Bunger's testimony, and added that a poker run was not considered a "priority project."

¶17 Marjean Gab, the secretary for the SDJCC at the time of the poker run, submitted an affidavit with the following statements: 1) The SDJCC did not plan, organize, sponsor, or promote charitable fundraising events undertaken by the local chapters; 2) the SDJCC was not asked to, nor did it, evaluate or approve the poker run.

¶18 Under these circumstances, there was no duty to monitor and supervise events the occurrence of which the SDJCC was not required to be informed; it is not...