Goldstein v. DDB Needham Worldwide, Inc.

• Decision Date: 14 June 1990
• Docket Number: No. C-1-88-680.,C-1-88-680.
• Citation: 740 F. Supp. 461
• Parties: Nancy GOLDSTEIN, et al., Plaintiffs, v. D.D.B. NEEDHAM WORLDWIDE, INC., et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

740 F. Supp. 461

Nancy GOLDSTEIN, et al., Plaintiffs, v. D.D.B. NEEDHAM WORLDWIDE, INC., et al., Defendants.

No. C-1-88-680.

United States District Court, S.D. Ohio, W.D.

June 14, 1990.

Stanley M. Chesley, Ronald J. Goodman, Cincinnati, Ohio, for plaintiffs.

James E. Pohlman, Columbus, Ohio, Jeffrey J. Harmon, Cincinnati, Ohio, Debra S. Davy, Chicago, Ill., for defendants.

ORDER

HERMAN J. WEBER, District Judge.

This matter is before the Court upon defendants' D.D.B. Needham Worldwide, Inc. and Omnicon Group, Inc.'s Motion for Summary Judgment (doc. no. 53) and Renewed Motion for Summary Judgment (doc. no. 73). Memoranda in opposition to and in support of such Motions have been filed by the parties (doc. nos. 59, 76, 77). On Friday, January 19, 1990, a hearing was held on such Motions at which time all parties presented their respective positions.

I. RELEVANT FACTS

The plaintiffs in this action are Nancy Goldstein, suing both in her capacity as surviving spouse and as Co-Executor of the Estate of Robert V. Goldstein ("Goldstein"), and Ronald J. Goodman, Co-Executor of the Estate of Robert V. Goldstein. At all times relevant to this action, Goldstein was domiciled in and was a resident of Ohio.

The defendants are Omnicom Group, Inc. ("Omnicom") and its wholly-owned subsidiary, D.D.B. Needham Worldwide, Inc. ("Needham"). Omnicom was and remains a corporation, organized and incorporated under the laws of New York with its principal place of business in New York. Needham was and remains a corporation, organized and incorporated under the laws of New York with its principal place of business in New York.

Robert V. Goldstein's death occurred during a five-day whitewater rafting and fishing adventure trip to British Columbia, Canada when he was thrown from the raft in which he was travelling on the Chilko River. It is alleged that "Goldstein suffered hyperventilation due to the cold water temperature and/or hypothermia and ultimately death by drowning."

Goldstein was a resident of Cincinnati, Ohio and employed by The Procter & Gamble Company in Cincinnati. Goldstein became Vice-President of Advertising at Procter & Gamble in 1979. At that time, Procter & Gamble was a major client of Needham. The companies conducted business together in Ohio. While Vice-President, Goldstein received four (4) invitations from Al Wolfe ("Wolfe"), President of D.D.B. Needham Worldwide, to participate in business outings sponsored and organized by Needham. These business outings involved "outdoor adventure" trips with whitewater rafting offered to the participants. Among the rivers visited on these outings were: the Middle Fork of the Salmon River in Idaho in 1979 and the Selway River in Idaho in 1983. The guide for both of these trips was Steve Currey of Provo, Utah. Goldstein participated in both of these trips. In 1985, Wolfe invited Goldstein to participate in a third trip, this time to the Chilko River in British Columbia. Goldstein did not accept this invitation.

In early 1987, Wolfe initiated the planning and scheduling of a five-day trip to the Chilko River in British Columbia. Goldstein was invited by Wolfe (the fourth invitation) to participate in this business outing to be held from July 29 to August 2, 1987. Wolfe handled all necessary arrangements, including the selection of the guide. He selected Ronald J. Thompson ("Thompson") of Thompson Guiding Ltd., a resident of British Columbia. This trip was arranged and sponsored to advance the business purposes of the defendants. The Court observes that at the time of the trip, Proctor & Gamble was no longer a client of Needham, having severed its business ties in 1986.

Eleven individuals participated in this trip. In addition to Wolfe and Goldstein, the participants included Stuart Sharpe and Gene Yovetich, both of whom were employees of Needham; James Fasules, a retired employee of Needham; Richard O'Reilly, an advertising executive from Greenwich, Connecticut; Earl Madsen, a partner in a law firm in Golden, Colorado; Michael Miles, President and Chief Executive Officer of Kraft, Inc.; Arthur Zeikel, President of Merrill Lynch Asset Management, Inc.; John Collins, President and Chief Operating Officer of the Clorox Company; and Joseph Morrison, Vice-President of Marketing for Mattel, Inc.

The eleven participants met at the airport in Vancouver, British Columbia before taking chartered planes to Chilko Lodge on Wednesday, July 29, 1987. While in the Hudson Terminal of the Vancouver Airport, Wolfe requested Stuart Sharpe, who had never rafted on the Chilko River prior to this trip, to circulate a written instrument to each participant for his signature. The participants had no prior opportunity to review this instrument. Wolfe was not present when it was circulated and signed by the participants. The guide for the trip, Thompson, was not present at the airport when the written instruments were presented, reviewed and signed by the participants. Goldstein had never met Thompson before he signed the instrument.

Goldstein purchased fishing gear in Vancouver on July 29, 1987 and also purchased a fishing license at Chilko Lodge on that same day. Goldstein chose to go fishing rather than join the group of six invitees who went whitewater rafting on Thursday and Friday, July 30 and 31, 1987, the first and second day of the Chilko trip.

On Saturday, August 1, 1987, however, Goldstein, the ten other participants and the guide boarded the raft. Their destination was the Chilko Lodge, downstream from their campsite. As they were travelling down the Chilko River, upon entering what is called the "White Mile" stretch of the river, a large and very powerful wave broke onto and into the starboard fore section of the raft pushing it to the left side of the river channel causing the raft to hit a boulder in the river. When the wave broke over the raft, it was essential that the passengers immediately engage in "high siding" in the raft to avoid disaster. No one effectively executed the "high siding" maneuver. Eleven of the twelve passengers, including the guide, fell into the water. Five of those eleven died.

II. SUMMARY JUDGMENT STANDARD

The Court has reviewed the arguments made by the Parties and has applied the principles of controlling law to the facts presented. The legal standard for consideration and disposition of issues on summary judgment is well settled.

Summary Judgment is proper "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 the moving party is entitled to a judgment as a matter of law," Fed.R.Civ.P. 56(c). The evidence presented on a motion for summary judgment is construed in favor of the party opposing the motion who is given the benefit of all favorable inferences that can be drawn therefrom. United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (original emphasis).

Summary judgment should not be granted unless it is clear that a trial is unnecessary. The threshold inquiry to determine whether there is a need for trial is whether "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. Id.

The fact that the weight of the evidence favors the moving party does not authorize a court to grant summary judgment. Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 472, 82 S.Ct. 486, 490, 7 L.Ed.2d 458 (1962). "The issue of material fact required by Rule 56(c) ... to entitle a party to proceed to trial is not required to be resolved conclusively in favor of the party asserting its existence; rather, all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or a judge to resolve the parties' differing versions of the truth at trial." First National Bank v. Cities Service Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968).

Moreover, although summary judgment must be used with extreme caution since it operates to deny a litigant his day in court, Smith v. Hudson, 600 F.2d 60, 63 (6th Cir.), cert. dismissed, 444 U.S. 986, 100 S.Ct. 495, 62 L.Ed.2d 415 (1979), the United States Supreme Court has recently stated that the "summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to `secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986). According to the Supreme Court, the standard for granting Summary Judgment mirrors the standard for a directed verdict, and thus summary judgment is appropriate if the moving party establishes that there is insufficient evidence favoring the non-moving party for a jury to return a verdict for that party. Id. at 323, 106 S.Ct. at 2552; Anderson, 477 U.S. at 250, 106 S.Ct. at 2511.

Accordingly, summary judgment is clearly proper "against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case and on which that party will bear the burden of proof at trial." Catrett, 477 U.S. at 322, 106 S.Ct. at 2551. Significantly, the Supreme Court also instructs that "the plain...