Doe v. Brainerd Intern. Raceway, Inc., C4-93-1734

• Citation: 514 N.W.2d 811
• Decision Date: 12 April 1994
• Docket Number: No. C4-93-1734,C4-93-1734
• Parties: Jane DOE, Appellant, v. BRAINERD INTERNATIONAL RACEWAY, INC., Respondent, North Country Security, Inc., Respondent.
• Court: Court of Appeals of Minnesota

Page 811

514 N.W.2d 811

Jane DOE, Appellant, v. BRAINERD INTERNATIONAL RACEWAY, INC., Respondent North Country Security, Inc., Respondent.

No. C4-93-1734.

Court of Appeals of Minnesota.

April 12, 1994.

Review Granted June 15, 1994.

Syllabus by the Court

1. Minn.Stat. § 617.246 (1988) imposes a duty of care not to permit minors to engage in a sexual performance. Violation of the statute imposes absolute liability.

2. A landowner may be liable for injuries to a known trespasser caused by criminal acts of third parties, when the landowner is aware of the high risk of criminal activity.

3. The doctrine of primary assumption of the risk does not negate a common-law claim of negligence when the risk involved was not necessary and incidental to the activity and no manifestation of consent was given.

4. It is error for the trial court to grant summary judgment sua sponte on grounds not raised by a moving party when the trial court gives the nonmoving party no notice and no meaningful opportunity to oppose summary judgment on those grounds.

James M. Sherburne, Sherburne Law Offices, P.A., Minneapolis, for appellant.

Robert G. Haugen, Johnson & Lindberg, P.A., Minneapolis, for Brainerd Intern'l. Raceway, Inc.

Richard L. Pemberton, Jr., W.D. Flaskamp, Meagher & Geer, Minneapolis, for North Country Sec., Inc.

Considered and decided by PARKER, P.J., and HUSPENI and FOLEY, JJ. ^*

OPINION

PARKER, Judge.

After a wet T-shirt contest in which she participated degenerated into a sexual performance, Doe, a minor, brought suit in tort against Brainerd International Raceway, Inc., and North Country Security, Inc., and demanded damages in excess of $50,000. Respondents moved for summary judgment, arguing that they had no duty to protect Doe, a trespasser, from the outcome of her voluntary actions and that they could not foresee the criminal activities of the contest organizers. The trial court granted summary judgment upon respondents' motion and upon grounds invoked sua sponte, and Doe appeals. We reverse.

FACTS

In August of 1988, the Quaker State Northstar National race took place at the Brainerd International Raceway (BIR). This was an annual event lasting several days and which had a reputation for general raucousness and uncontrolled behavior. BIR normally obtained the services of North Country Security, Inc., (NCS) for such events and did so for this event. BIR provided NCS personnel many of the tools they needed to perform their duties, including belts, handcuffs, handcuff holders, flashlight holders, and radios. BIR did not permit NCS to make use of the public address system at the raceway without BIR's express advance permission.

Doe, a 16-year-old runaway who had previously, at another location, participated in a wet T-shirt contest involving no nudity, entered the BIR grounds by using a pass obtained by another person. NCS personnel testified that it was impossible to prevent all persons without valid passes from entering or remaining on the grounds. Doe admitted to ingesting drugs and alcohol provided her by patrons of the event.

A wet T-shirt contest, which had been held in previous years with the knowledge of respondents, was planned by persons not employed by either respondent. Doe adduced evidence that BIR and NCS had knowledge of the 1988 contest; testimony revealed that, on the premises, advertising flyers had been distributed, a large banner had been posted proclaiming it and a stage constructed for it. In State v. Borden, 455 N.W.2d 482 (Minn.App.1990), pet. for rev. denied (Minn. July 13, 1990), in which this court upheld the criminal conviction of one of the male organizers of this very event, the court said:

In preparation for the contest, Borden prepared printed flyers and obtained scaffolding to use for the stage. An ice cream bucket, with a sign asking for donations, was set outside the front gate.

Id. at 483.

Doe produced evidence that the head of the security force hired for the event had given approval for the wet T-shirt contest, even though prevention of the contest had been a goal of the security plan established by BIR and NCS. The contest held the previous year had involved nudity, but no sexual interaction between the contestants and the contest organizers.

Doe further produced evidence that it was generally known that the crowd's behavior at the Quaker State race was normally much more out of hand than it was at other events held at BIR. Security personnel said they would not venture into the most dangerous area of the BIR compound, especially after dark; they referred to this area as the "zoo," and it was where the wet T-shirt contest took place. Acts of violence were common in "the zoo," including explosion of pipe bombs, the burning of cars, and sexual molestation--even of minors. Security personnel would not accompany paramedics into the zoo to assist injured persons and warned them that they might be killed if they ventured into the area after dark.

Attendance at the wet T-shirt contest was heavy: "The crowd was estimated to be between 2,000 and 3,000 people, predominantly men." Id.

Doe participated as a contestant in the event, which began with a sopping of the contestants' clothes and gradually escalated into a striptease. After the contestants were completely nude, the male organizers of the event hoisted contestants into the air, spread the contestants' legs and inserted their fingers, tongues, and phallic devices into the contestants' vaginas. This activity continued for at least 45 minutes. A videotape of the performance was made by spectators of the event.

As to the presence of security at the contest, Keith Emerson, the head of NCS, testified that three officers had been assigned to the zoo. One of the three was deposed, however, and he testified he knew nothing about the contest until it was over. Emerson also claimed that when he first learned of the contest, that same afternoon, he started pulling in additional security by means of his walkie-talkie. But many officers, even several whom Emerson claimed to have contacted, testified that they had neither received nor heard such a message. Another guard Emerson claimed to have contacted testified that he did not work at the Quaker State event in 1988. Emerson testified it took him 20 minutes to brief the officers on shutting down the contest, but that all he actually told them was that he would decide how to handle the situation once they actually arrived at the scene. He further admitted that the contest was over by the time he and his reinforcements arrived.

In response to Doe's complaint, respondents claimed that any injury to her was due to contributory negligence or to actions of third parties. Respondents further pled that Doe assumed the risk of her injuries.

The trial court granted summary judgment in favor of respondents, ruling that Doe entered the contest voluntarily and that the contest itself was organized without the consent of BIR, which, the court found, did not hear of the event until a day after it occurred. The trial court found that by the time NCS had heard of the event and rounded up security personnel to put a stop to it, it was over.

ISSUES

I. Did respondents have a duty of care toward Doe?

A. Did respondents have a duty created by Minn.Stat. § 617.246 (1988) not to permit Doe to engage in a sexual performance?

B. Did respondents have a duty to prevent foreseeable criminal acts of third parties, occurring on BIR's premises, that presented a risk of harm to a known trespasser?

C. Does primary assumption of the risk negate either Doe's common law claim or her statutory claim?

II. Is BIR vicariously liable for the negligence of NCS?

III. Did the trial court err in granting summary judgment on grounds not raised by the moving party, without notice and without affording the opposing party a meaningful opportunity to oppose summary judgment on those grounds?

DISCUSSION

Standard of Review

Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law." Minn.R.Civ.P. 56.03. On appeal from summary judgment, this court must determine whether there are any genuine issues of material fact and whether the trial court erred in its application of the law. Betlach v. Wayzata Condominium, 281 N.W.2d 328, 330 (Minn.1979).

Upon a motion for summary judgment, the nonmoving party has the benefit of that view of the evidence which is most favorable to him and is entitled to have all doubts and factual inferences resolved against the moving party. Progressive Cas. Ins. Co. v. Kraayenbrink, 370 N.W.2d 455, 459 (Minn.App.1985), pet. for rev. denied (Minn. Sept. 19, 1985). The trial court, however, improperly viewed the evidence in this case in the light least favorable to Doe.

I. Duty

A. Statutory Duty and Absolute Liability

In her reply to respondents' motions for summary judgment, Doe raised a claim that Minn.Stat. § 617.246 (1988) imposed a duty upon BIR and NCS not to permit her to engage in the activity that occurred during the wet T-shirt contest. The statute reads:

Subd. 2. Use of minor. It is unlawful for a person to promote, employ, use or permit a minor to engage in * * * any sexual performance if the person knows or has reason to know that the conduct intended is a sexual performance.

"Sexual performance" means

any play, dance or other exhibition before an audience or for purposes of visual or mechanical reproduction which depicts sexual conduct as defined by clause (e).

Minn.Stat. § 617.246, subd. 1(d) (1988). Clause (e), in turn, specifies that "sexual conduct" means

(i) an act of sexual intercourse * * * including * * * oral-genital intercourse.

* * * * * *

(iii) Masturbation or lewd exhibitions of the genitals.

(iv) Physical contact * * * with the unclothed pubic...