Landvik by Landvik v. Herbert
| Decision Date | 24 April 1997 |
| Docket Number | No. 22330,22330 |
| Citation | 936 P.2d 697,130 Idaho 54 |
| Parties | Jilynn LANDVIK, a minor by Dan Landvik and Debbie LANDVIK, her guardians ad litem, and Dan Landvik and Debbie Landvik, individually, Plaintiffs-Appellants-Cross-Respondents, v. Victor HERBERT dba Bicycle City and Victor Herbert, individually, Defendant-Respondent-Cross-Appellant, and Aden Martin, individually, Westwood Mall Associates, a partnership, Isaac Bernstein, Isaac Perlstein, Martin Friedman, Fischel Bernstein, Munkas Tora Academy, individually and as partners in Westwood Mall Associates and Does I through XX, Defendants. |
| Court | Idaho Court of Appeals |
McDevitt, Meyers & Thomsen, Pocatello, for appellants. M. Jay Meyers argued, Pocatello.
Quane, Smith, Howard & Hull, Pocatello, for respondents. Kumen L. Taylor argued, Pocatello.
Jilynn Landvik appeals from an order granting summary judgment to Victor Herbert on Landvik's claim that as a result of Herbert's alleged negligence, she was injured while attending a concert.
Victor Herbert owns and operates Bicycle City, a retail store in Pocatello which sells, among other things, bicycles and skateboards. Bicycle City also operates a "skate park" where people can engage in skateboarding. In 1992, Aden Martin and Brandon West, two high school students, were employed at Bicycle City. They developed plans to organize a concert and sell tickets as a profit-making venture. Martin and West approached Herbert about holding the concert at the Bicycle City skate park, but Herbert denied this request. Martin and West then obtained permission to hold the concert at a shopping center, the Westwood Mall. They arranged for several bands to perform at the concert. With Herbert's permission, Martin and West distributed advertising flyers which stated that advance tickets for the concert could be purchased at Bicycle City, posted flyers on Bicycle City's premises and sold tickets during working hours. Martin and West also designed and produced concert tickets and, unbeknownst to Herbert, used Bicycle City's check deposit stamp on the back of each ticket to thwart unauthorized reproduction of the tickets. The evening of the concert, Martin and West created two posters which were displayed in the mall near the site of the concert. These posters stated, "Bicycle City, Westwood Mall and Promoters of this concert are not responsible for any damages or injuries." Herbert did not know that Martin and West were displaying these posters using Bicycle City's name.
Jilynn Landvik, who was then fourteen years old, attended the concert with friends. During the concert she participated, along with others, in what is known as stage diving, in which individuals throw themselves from an elevated stage on top of individuals below, who are expected to catch the "divers". Landvik fell to the ground and suffered personal injuries. As a result, Landvik and her parents brought suit against West, Martin, Herbert, and the owners of the Westwood Mall.
Herbert moved for summary judgment, on the ground that he had not been involved in any way in the sponsorship or organization of the concert and therefore owed no duty of care to those who attended the event. The trial court granted the motion for summary judgment and awarded attorney fees to Herbert under I.C. § 12-121 based on the court's finding that the action against Herbert was pursued frivolously. Although claims against other defendants remain pending, the court certified this partial summary judgment dismissing the claim against Herbert as a final judgment pursuant to I.R.C.P. 54(b). Landvik now appeals from the summary judgment and from the award of attorney fees. Herbert cross-appeals on the issue of attorney fees, asserting that the court should also have awarded attorney fees against Landvik's attorney as a sanction pursuant to I.R.C.P. 11(a)(1).
Summary judgment under I.R.C.P. 56(c) is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. When a summary judgment motion has been supported by depositions, affidavits or other evidence, the adverse party "may not rest upon the mere allegations or denials of that party's pleadings, but the party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." I.R.C.P. 56(e). See also Gardner v. Evans, 110 Idaho 925, 929, 719 P.2d 1185, 1189 (1986). When a court considers a motion for summary judgment, all facts are to be liberally construed in favor of the nonmoving party, and the court must draw all reasonable inferences in favor of the party resisting the motion. G & M Farms v. Funk Irrigation Co., 119 Idaho 514, 517, 808 P.2d 851, 854 (1991); Sanders v. Kuna Joint School Dist., 125 Idaho 872, 876 P.2d 154 (Ct.App.1994). "[T]he motion must be denied if evidence is such that conflicting inferences may be drawn therefrom, and if reasonable people might reach different conclusions." Olsen v. J.A. Freeman Co., 117 Idaho 706, 720, 791 P.2d 1285, 1299 (1990). However, a mere scintilla of evidence or only a slight doubt as to the facts is insufficient to withstand summary judgment; there must be sufficient evidence upon which a jury could reasonably return a verdict for the party opposing summary judgment. Corbridge v. Clark Equipment Co., 112 Idaho 85, 87, 730 P.2d 1005, 1007 (1986); Petricevich v. Salmon River Canal Co., 92 Idaho 865, 871, 452 P.2d 362, 368 (1969).
On appeal, we exercise free review in determining whether a genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. Edwards v. Conchemco, Inc., 111 Idaho 851, 852, 727 P.2d 1279, 1280 (Ct.App.1986).
In the present case, Landvik argues that there was sufficient evidence to raise a genuine issue as to whether Herbert was a sponsor of the concert and therefore owed a duty of care to those attending. Alternatively, Landvik asserts that Herbert is vicariously liable for the acts of Martin and West because their conduct in organizing and sponsoring the concert was within the scope of their apparent authority as employees of Herbert's business, Bicycle City.
No liability arises under the law of negligence unless the defendant owed a duty of care to the plaintiff. Bowling v. Jack B. Parson Companies, 117 Idaho 1030, 1032, 793 P.2d 703, 705, (1990). See also Brooks v. Logan, 127 Idaho 484, 489-90, 903 P.2d 73, 78-79 (1995). Landvik posits that such a duty arose here because Herbert had a direct role as a sponsor of the concert. As the district court held, however, this assertion is unsupported by the evidence. Before Herbert filed his motion for summary judgment, his role with respect to the concert was thoroughly explored in depositions and other discovery. Herbert, Martin and West all testified in deposition that Herbert did not help plan, organize, produce, sponsor or finance the concert, did not furnish any equipment or facilities for the event and did not receive any proceeds from the ticket sales.
Landvik argues that a jury, nonetheless, could reasonably infer that Herbert was a concert sponsor from the facts that (1) he allowed West and Martin to sell concert tickets during their working hours at Bicycle City; (2) he knew that West and Martin were distributing flyers stating that advance tickets could be purchased at Bicycle City and allowed them to post such flyers on Bicycle City's premises; (3) Martin and West used Bicycle City's check deposit stamp on the back of the tickets; (4) the posters which Martin and West displayed at the concert site mentioned Bicycle City as one of the entities which would not be liable for damages or injuries sustained at the concert; and (5) Martin used some of his share of the profits from the concert to pay his account at Bicycle City for merchandise he had purchased there.
Landvik's reliance on the use of Bicycle City's name on the posters displayed at the concert and the use of its check deposit stamp on the back of the tickets is misplaced. Herbert, Martin and West all testified that these actions were taken by Martin and West without Herbert's knowledge or approval. Therefore, they do not evidence any involvement by Herbert in the concert production. With regard to Martin's use of a portion of his profits from the concert to pay his account at Bicycle City, we think it self-evident that this does not support an inference that Herbert was a sponsor of the event because he "profited" from it. Were the rule otherwise, any business where Martin spent a portion of his concert profits could unwittingly become an ex post facto "sponsor" of the event.
The only remaining evidence upon which Landvik relies is the evidence that Herbert allowed Martin and West to sell tickets on the Bicycle City premises and knew that they were distributing advertising flyers, including posting the flyers on the Bicycle City premises, which stated that tickets could be purchased at that store. This is insufficient to prevent summary judgment on the issue whether Herbert was a sponsor or promoter. The district court held, and we agree, that the mere fact that a business allows the advertisements of an event to be posted on its premises or allows the sale on its premises of tickets to the event does not constitute the business a sponsor of the event or impose upon the business a duty of care to prevent injury to those who attend.
We next consider Landvik's alternative argument that West and Martin acted within the scope of their apparent authority as Bicycle City employees and thereby rendered Herbert vicariously liable for their conduct in sponsoring the concert.
We begin by noting there are three types of agency: express...
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