Boehm v. Cody Country Chamber of Commerce

• Decision Date: 31 December 1987
• Docket Number: No. 87-23,I-X,87-23
• Parties: David BOEHM, and Penny Boehm, Appellants (Plaintiffs), v. CODY COUNTRY CHAMBER OF COMMERCE, a Wyoming corporation, Cody Country Gunfighters Club, an unincorporated association; The City of Cody, Wyoming, a Wyoming governmental entity; The Irma, Inc., a Wyoming corporation; David Bermingham, as an individual, and as president of the Cody Country Gunfighters Club; Tim Ward; and Todd Darr, Appellees (Defendants), John Does, inclusive, (Defendants).
• Court: Wyoming Supreme Court

Page 704

748 P.2d 704

David BOEHM, and Penny Boehm, Appellants (Plaintiffs), v. CODY COUNTRY CHAMBER OF COMMERCE, a Wyoming corporation, Cody Country Gunfighters Club, an unincorporated association; The City of Cody, Wyoming, a Wyoming governmental entity; The Irma, Inc., a Wyoming corporation; David Bermingham, as an individual, and as president of the Cody Country Gunfighters Club; Tim Ward; and Todd Darr, Appellees (Defendants) John Does I-X, inclusive, (Defendants).

No. 87-23.

Supreme Court of Wyoming.

Dec. 31, 1987.

Jeffrey A. Tennyson of Robert N. Williams, P.C., Jackson, and Frank D. Neville of Williams, Porter, Day & Neville, Casper, for appellants.

Anthony A. Johnson of Rector, Retherford, Mullen & Johnson, Colorado Springs, Colo., for appellees Cody Country Chamber of Commerce and Cody Country Gunfighters Club.

Michael K. Davis of Redle, Yonkee & Arney, Sheridan, for appellee City of Cody, Wyo.

J.N. Murdock of Reeves & Murdock, Casper, for appellee David Bermingham.

Marvin J. Johnson of Edwards and Johnson, Cheyenne, for appellee Irma, Inc.

Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.

BROWN, Chief Justice.

Appellants, David and Penny Boehm, contend that appellees Cody Country Gunfighters Club (Club), the Cody Country Chamber of Commerce (Chamber), the City of Cody (City), the Irma, Inc. (Irma), David Bermingham, as an individual and as president of the Club, and Club members Tim Ward, Todd Darr, and John Does I-X, are liable to them in tort for injuries sustained by David Boehm during a mock gunfight that took place in Cody, Wyoming, on July 18, 1983, and for loss of consortium resulting from those injuries. The district court granted summary judgment in favor of appellees. Appellants base their appeal on the following three issues:

"I. Did the district court commit reversible error in granting summary judgment based upon a purported release where there is a genuine issue of material fact as to whether the parties to the agreement were in an employment relationship?

"II. Does the purported release in question violate public policy?

"III. Did the district court commit reversible error in granting summary judgment based upon a release where a genuine issue of material fact existed as to whether the parties relying upon the release, committed acts of willful and wanton misconduct?"

This court may decide a case "upon any point which in [our] opinion the ends of justice may require." State Highway Commission v. Triangle Development Co., Wyo., 371 P.2d 408 (1962). Further, we may affirm a district court judgment on any legal ground appearing in the record. Weyerhauser Co. v. Walters., Wyo., 707 P.2d 733, 737 (1985); cf. Mentock v. Mentock, Wyo., 638 P.2d 156, 160 (1981). Based on these precedents we will address this case using the following six issues:

I

Whether appellants are entitled to maintain a negligence action against the Club, Tim Ward, Todd Darr, other Club members and David Bermingham as Club president?

II

Whether appellants are entitled to maintain a negligence action against the City of Cody under §§ 1-39-101 through 1-39-120, W.S.1979 (Cum.Supp.1983).

III

Whether summary judgment favoring David Bermingham as an individual was proper?

IV

Whether summary judgment enforcing the release in question as not violating public policy was proper?

V

Whether summary judgment favoring appellees concerning alleged willful and wanton misconduct was proper?

VI

Whether summary judgment favoring appellees concerning the alleged existence of an employment relationship between the parties was proper?

We will affirm.

Appellant David Boehm became a member of the Club in late 1981 or early 1982. The Club's only activity was staging regularly scheduled mock gunfights at the Irma Hotel and on 12th Street in Cody to help promote summer tourism. At the beginning of the 1982 membership year, and again in early 1983, Mr. Boehm signed a membership application. Both the 1982 and 1983 application forms contained an exculpatory clause which read:

"I furthermore understand that I shall perform as a Gunfighter entirely at my own risk and shall hold harmless and release the Cody Chamber of Commerce, its agents and employees, the Cody Country Gunfighters Club, its members, and the Irma Hotel, or any other location(s) sanctioned by the club from any and all claims and damages which said participant may incur from participation in any and all activities sanctioned by the Cody Country Gunfighters Club."

David Boehm testified that he read and understood the applications and the Club safety rules before he signed. David Boehm's duties in the Club during 1983 included serving as Club Secretary and Chairman of the Safety Committee. As Club Secretary he was responsible for having all Club members fill out and sign the membership applications. As Chairman of the Safety Committee he helped in modifying club safety rules and generally overseeing the safety of the performances.

The 1983 performances took place four times a week, and were sponsored indirectly by Irma and other Chamber members, who contributed money to the Chamber for civic causes. This money was divided into separate accounts and distributed by the Chamber. Irma helped the Club by allowing use of the hotel for performances and meetings. Irma also held an annual dinner for the Club and offered each member one free drink after every performance.

The Club used a portion of 12th Street in Cody for the mock gunfights without ever getting express permission from the City to do so. The Chamber, Irma and the City, on a few occasions, made suggestions to Club members regarding performances and policies. These suggestions were discussed and acted upon by the Club membership or through its committees.

Appellee Bermingham was President of the Club from late 1980 through 1983. Appellees Ward, Darr and John Does I-X were 1983 club members. The Club itself was a loosely organized unincorporated association run by majority vote of its members and through committees. Club members were not paid for their participation in the performances through the 1983 summer season.

The performance script called for each mock gunfight to start when a group of "bandits," including David Boehm, would stage a fake robbery of the Irma Hotel. The "sheriff" (played by Bermingham) and his "good guys" would descend upon the forces of evil leading to an all out gunfight. The shooting would begin on the porch of the Irma Hotel, reaching a dramatic climax on 12th Street where hay bale props had been set up by Club members in a roped-off area. During the exchange of blank gunfire, David Boehm would rise up from behind a hay bale and fire two shots in the direction of the "deputy sheriff" (played by Ward). The deputy would "die" from the shots and David Boehm would be gunned down in return fire. Eventually, the sheriff would blast the last bad guy, "Butch Cassidy" (played by David Boehm's brother), and emerge as the sole survivor to recover Irma's money.

During a July 18, 1983, performance, David Boehm received a severe injury to his right eye from a projectile of unknown origin. Speculation was that the object was either hardened glue used to seal the blank cartridges or a rock from the street propelled into Boehm's eye by the discharge of a pistol too close to the ground.

Appellants sued appellees ¹ claiming damages based on theories of negligence, culpable negligence and willful and wanton misconduct. ² Appellees denied liability, and the City, Irma and David Bermingham filed motions for summary judgment and supporting memoranda on July 10, August 22, and September 2, 1986, respectively. Appellants filed their opposition memorandum to the motions on August 29, 1986. The trial court issued an opinion letter on September 9, 1986, granting summary judgment in favor of all moving and nonmoving appellees. A final order granting summary judgment as such was entered on December 2, 1986. This appeal is from that order.

I

We first hold that appellants are not legally entitled to sue either the Club itself, or any of its members for their actions in furthering the mock gunfights. Members of an unincorporated association are engaged in a joint enterprise. Thus, the negligence of one member, acting in furtherance of the enterprise, is imputable to all. Allowing such a member to sue the association or another member, as a part of the association, would be tantamount to allowing that person to sue himself. Bowser v. Hershey Baseball Ass'n, 357 Pa.Super. 435, 516 A.2d 61, 63 (1986); De Villars v. Hessler, 363 Pa. 498, 70 A.2d 333, 14 A.L.R.2d 470, 473-474 (1950). The rule, however, does not preclude a member from suing another member in his individual capacity for individual negligence. This is because no person may negligently injure another without responsibility.

Appellants' original and amended complaints named as defendants: the Club (as an unincorporated association), members Ward, Darr, John Does I-X and David Bermingham as president and as an individual. We can only assume that appellants knew of the distinction discussed above when choosing their defendants, particularly since appellee Bermingham was sued as a member and as an individual. The record also shows that this issue was presented to the district court as a possible basis for granting summary judgment in David Bermingham's Memorandum in Support of His Motion for Summary Judgment, filed September 2, 1986. Consequently, David Boehm's action against the Club, its members and appellee Bermingham as a member is precluded. Further, because appellant Penny Boehm's negligence claims against appellees are for loss of consortium, they are derivative of David Boehm's ability to sue and fail with her husband's claims. Weaver v. Mitchell, Wyo., 715 P.2d 1361, 1369 (1986); Prosser and Keeton on Torts, § 125, p. 937 (5th Ed. 1984). Appellants' action against David Bermingham as an individual is dealt with under issue III....