Major By and Through Major v. Castlegate, Inc.

• Decision Date: 28 March 1997
• Docket Number: No. 75286,75286
• Citation: 935 P.2d 225,23 Kan.App.2d 694
• Parties: Dallas Nicole MAJOR, a minor, By and Through her natural mother and next friend, Shelli MAJOR, Appellant, v. CASTLEGATE, INC., Appellee.
• Court: Kansas Court of Appeals

Page 225

935 P.2d 225

23 Kan.App.2d 694

Dallas Nicole MAJOR, a minor, By and Through her natural mother and next friend, Shelli MAJOR, Appellant, v. CASTLEGATE, INC., Appellee.

No. 75286.

Court of Appeals of Kansas.

March 28, 1997.

Review Denied June 6, 1997.

Syllabus by the Court

1. The doctrine of respondeat superior may be used in appropriate cases to hold an employer liable for the negligence of its employee. The test in determining the existence of agency, so that the liability for a servant's negligence will be imputed to the master, is the right to control the purported servant. Whether there is any competent evidence to prove the existence of agency is a question of law.

2. For negligence to exist, there must be a duty owed by one person to another and a breach of that duty. The injured party must show: (1) a causal connection between the duty breached and the injury received and (2) damage from negligence. Whether a duty exists is a question of law, although whether the duty has been breached is a question of fact.

3. "Duty" has been defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.

4. The proximate or legal cause of an injury is that cause which in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury and without which the injury would not have occurred, the injury being the natural and probable consequence of the wrongful act.

5. Under the facts of this case, the district court did not err in ruling that the employer owed no duty to plaintiff to supervise the placement of the badminton court and horseshoe pit in order to assure the safety of participants at a company picnic and in holding that the placement of the horseshoe pit next to the badminton court was not the proximate cause of plaintiff's injury.

Patrick C. Smith, of Spigarelli, McLane & Short, Pittsburg, for appellant.

Donald C. Bollard and Richard D. Fry, of Sherman, Taff & Bangert, P.C., Leawood, for appellee.

Before ROYSE, P.J., PIERRON, J., and DEAN J. SMITH, District Judge Retired, Assigned.

ROYSE, Presiding Judge:

This negligence action arises out of injuries sustained by the minor plaintiff, Dallas Nicole Major, at a company picnic sponsored by Castlegate, Inc. (Castlegate). Plaintiff's mother, Shelli Major, brought this action on her daughter's behalf, alleging that Castlegate was negligent in failing to exercise reasonable care to assure that the picnic and accompanying activities were conducted in a manner safe to participants and spectators. Specifically, plaintiff claimed Castlegate negligently failed to supervise the placement of a badminton court and a horseshoe pit.

Castlegate filed a motion for summary judgment, arguing that it had no duty to supervise the picnic. The district court granted Castlegate's motion, determining that Castlegate owed no duty to supervise the activities at the picnic and that the placement of a horseshoe pit next to a badminton court was not the proximate cause of plaintiff's injury. Plaintiff appeals.

Castlegate manufactures steel doors for residential and commercial use. It has sponsored a picnic for its employees, their families, friends, and neighbors for many years. Attendance at the picnic is voluntary. The 1992 picnic was held at Lincoln Park, a park facility owned and maintained by the City of Pittsburg. The picnic was held on a Saturday, which is not a regular working day at Castlegate. Several hundred people were in attendance.

Steven Cox, Vice-President of Operations at Castlegate, determined the amount of money Castlegate would spend on the 1992 picnic. The company paid for all of the food, drinks, game prizes, and recreational activities offered at the park, such as on-site swimming and golf. Cox authorized his assistant, Ramona Layng, to organize the picnic and to obtain the assistance of employee volunteers. Layng reserved the shelter houses, made arrangements for a caterer, and publicized the date for the picnic. Castlegate employees did meet at least once during Castlegate's working hours to discuss plans for the picnic.

Phillip Delmez worked for Castlegate as a paint booth operator. He set up the badminton game. Don Townsend worked for Castlegate as a computerized rotator operator. He brought Castlegate's horseshoe equipment to the park and set up the horseshoe game after the badminton game had been put in place. The badminton game was west of the horseshoe pit, with the badminton net 20 to 25 feet from the nearest horseshoe stake. No portion of the badminton court was less than 10 feet from the nearest horseshoe stake. The fish tank was east of the horseshoe pit, but the record does not disclose the distance between those two sites.

Plaintiff, who was 7 years old, attended the picnic with her father, stepmother, and stepsister. Upon their arrival at the picnic, the family played badminton. While in the badminton area, plaintiff, her father, and her stepmother could observe people throwing horseshoes in the horseshoe pit. After they stopped playing badminton, plaintiff put her badminton racket down and started running over to the fish tank game. Plaintiff ran through the middle of the horseshoe pit between the horseshoe stakes just as one of the players threw a horseshoe. Although he called out a warning, she was struck in the head by the horseshoe.

This case is before us on a motion for summary judgment. The applicable standard of review is well settled:

"The burden on the party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. Summary judgment is appropriate when 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 judgment as a matter of law. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal we apply the same rule, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citations omitted.]" Mitzner v. State Dept, of SRS, 257 Kan. 258, 260-61, 891 P.2d 435 (1995).

Plaintiff first argues that Castlegate is liable under the doctrine of respondeat superior. Respondeat superior may be used in appropriate cases to hold an employer liable for the negligence of its employee. See Voss v. Bridwell, 188 Kan. 643, 656, 364 P.2d 955 (1961); Hurla v. Capper Publications, Inc., 149 Kan. 369, Syl. p 5, 87 P.2d 552 (1939). As the district court correctly noted, the test in determining the existence of agency, so that the liability for a servant's negligence will be imputed to the master, is the right to control the purported servant. First National Bank of Denver v. Caro, 211 Kan. 678, 681, 508 P.2d 516 (1973); Hendrix v. Phillips Petroleum Co., 203 Kan. 140, 155, 453 P.2d 486 (1969). Whether there is any competent evidence to prove the existence of agency is a question of law. 203 Kan. at 155, 453 P.2d 486.

Plaintiff contends the employee volunteers were acting as Castlegate agents, under Castlegate control, when they set up the games at the picnic. To support this contention, plaintiff relies on two assertions that are unsupported by the record: (1) that Steven Cox made the final decision concerning what events would be included at the picnic and (2) that Ramona Layng, acting as Castlegate's agent, directed the placement of the badminton court and the horseshoe pit. Although plaintiff's brief includes citations to the record, the material cited provides no factual support for these assertions. Assertions of counsel in an appellate brief do not constitute evidence or remedy inadequacies in the record on appeal. Kenyon v. Kansas Power & Light Co., 17 Kan.App.2d 205, 207, 836 P.2d 1193 (1992).

To support her respondeat superior claim, plaintiff also relies on an ex parte telephone statement from Delmez, the Castlegate employee who set up the badminton net. This statement was taken by plaintiff's counsel after suit was filed and while Delmez remained a Castlegate employee. The district court observed that this ex parte statement was not formally a part of the record before it, a finding which plaintiff does not challenge. See Chancellor v. Boeing Co., 678 F.Supp. 250 (D.Kan.1988); Hagedorn v. Stormont-Vail Regional Med. Center, 238 Kan. 691, 697, 715 P.2d 2 (1986). The district court further concluded that the ex parte statement provided no warrant for plaintiff's contention that Ramona Layng, acting as an agent of Castlegate, exercised control over the volunteers who prepared the game sites. We agree.

The record contains the sworn affidavits of Delmez, Townsend, and Layng. All three persons stated that the employee volunteers who set up the games made the decision where to put them. Even the ex parte statement relied on by plaintiff refers only to the badminton court; it contains no indication that Castlegate had control over the placement of the horseshoe pit beside the badminton court.

Plaintiff points to two cases to support her claim that Castlegate bore a duty to exercise reasonable care for the safety of the picnic participants. The first is Easler v. Downie Amusement Co., 125 Me. 334, 133 A. 905 (1926). Easler arose out of injuries sustained by a minor plaintiff who was watching an impromptu game of baseball played by off-duty circus employees. The plaintiff was struck by a makeshift bat which slipped from the batter's hands. The accident occurred on the circus grounds shortly before the evening performance....