Saari v. Winter Sports, Inc.

• Decision Date: 25 February 2003
• Docket Number: No. 02-466.,02-466.
• Citation: 64 P.3d 1038,314 Mont. 212,2003 MT 31
• Parties: Leslie SAARI, Individually, as Personal Representative of the Estate of Jean Leone Saari, Deceased; Jason Saari; Shayne Saari; Brian Saari and Scott Saari; and Lisa Saari, Brenda Saari and Justin Saari, Minors by and through their Guardians ad Litem, Sharon Kinman, Grace Hall, and Shelley McElroy, Respectively, Plaintiffs and Appellants, v. WINTER SPORTS, INC., a Montana Corporation, d/b/a The Big Mountain, Defendant and Respondent.
• Court: Montana Supreme Court

64 P.3d 1038

2003 MT 31

314 Mont. 212

Leslie SAARI, Individually, as Personal Representative of the Estate of Jean Leone Saari, Deceased; Jason Saari; Shayne Saari; Brian Saari and Scott Saari; and Lisa Saari, Brenda Saari and Justin Saari, Minors by and through their Guardians ad Litem, Sharon Kinman, Grace Hall, and Shelley McElroy, Respectively, Plaintiffs and Appellants, v. WINTER SPORTS, INC., a Montana Corporation, d/b/a The Big Mountain, Defendant and Respondent.

No. 02-466.

Supreme Court of Montana.

Submitted on Briefs October 10, 2002.

Decided February 25, 2003.

Todd A. Crabtree; Crabtree Law Firm, Stillwater, Minnesota, Evan F. Danno; Lerner & Danno, Kalispell, Montana, for appellants.

Mikel L. Moore; Christensen, Moore, Cockrell, Cummings & Axelberg, Kalispell, Montana, for respondents.

Chief Justice KARLA M. GRAY delivered the Opinion of the Court.

¶ 1 The Plaintiffs in the underlying action (collectively, the Saaris) appeal from the judgment entered by the Eleventh Judicial District Court, Flathead County, on its order granting the motion for summary judgment filed by Winter Sports, Inc. (WSI). We affirm.

¶ 2 We address the following issues on appeal:

¶ 3 1. Did the District Court err in granting summary judgment to WSI on all counts of the Saaris' complaint based on its determination that § 70-16-302, MCA, provides WSI with immunity from suit?

¶ 4 2. Did the District Court err in granting summary judgment to WSI on the Saaris' attractive nuisance claim?

BACKGROUND

¶ 5 On December 4, 1998, Jean Saari (Jean) went inner tube sledding with a church youth group at The Big Mountain, a ski resort owned by WSI. The youth group arrived at The Big Mountain when the ski resort had closed its operations for the day. Notwithstanding, the group selected a ski slope and began sledding. It did not pay any fees to WSI to use the sledding hill and did not rent or purchase equipment from WSI. At some point during the evening, the inner tube on which Jean was riding went out of control and crashed into a creek bed. As a result of the accident, Jean suffered injuries from which she eventually died.

¶ 6 The Saaris subsequently filed a complaint in the District Court against WSI alleging six negligence counts denominated as follows: survival action, wrongful death, negligence, premises liability, attractive nuisance and infliction of emotional distress. WSI answered the complaint. It then moved for summary judgment on all counts, arguing that, pursuant to § 70-16-302, MCA, it owed no duty of care to Jean and, consequently, the Saaris' claims were precluded. As to the attractive nuisance count, WSI also moved for summary judgment on the basis that the Saaris could not establish the requisite elements of the claim. After briefing by the parties, the District Court entered its order granting summary judgment to WSI on the grounds that all counts of the Saaris' complaint were precluded by § 70-16-302, MCA, and that the attractive nuisance count also failed as a matter of law. Judgment was entered accordingly and the Saaris appeal.

STANDARD OF REVIEW

¶ 7 We review a district court's grant of summary judgment de novo, using the same Rule 56, M.R.Civ.P., criteria applied by that court. Contreras v. Fitzgerald, 2002 MT 208, ¶ 10, 311 Mont. 257, ¶ 10, 54 P.3d 983, ¶ 10. In that regard, summary judgment is appropriate where "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." Rule 56(c), M.R.Civ.P. The party moving for summary judgment bears the burden of establishing the absence of genuine issues of material fact and entitlement to judgment as a matter of law. Once the movant does so, the burden shifts to the nonmoving party to present evidence establishing the existence of material issues of fact which preclude summary judgment. Contreras, ¶ 10, 54 P.3d 983. "[T]he opposing party must present material and substantial evidence, rather than mere conclusory or speculative statements, to raise a genuine issue of material fact." Gonzales v. Walchuk, 2002 MT 262, ¶ 9, 312 Mont. 240, ¶ 9, 59 P.3d 377, ¶ 9.

DISCUSSION

¶ 8 1. Did the District Court err in granting summary judgment to WSI on all counts of the Saaris' complaint based on its determination that § 70-16-302, MCA, provides WSI with immunity from suit?

¶ 9 Section 70-16-302(1), MCA provides that

[a] person who uses property, including property owned or leased by a public entity, for recreational purposes, with or without permission, does so without any assurance from the landowner that the property is safe for any purpose if the person does not give a valuable consideration to the landowner in exchange for the recreational use of the property. The landowner owes the person no duty of care with respect to the condition of the property, except that the landowner is liable to the person for any injury to person or property for an act or omission that constitutes willful or wanton misconduct.

The general purpose of § 70-16-302(1), MCA, is to encourage landowners to make their property freely available for public use by granting the landowner relief from liability to people gratuitously entering the property for recreational purposes. Simchuk v. Angel Island Community Ass'n (1992), 253 Mont. 221, 226, 833 P.2d 158, 161 (citations omitted). By its terms, however, § 70-16-302(1), MCA, provides for liability when the recreational user gives valuable consideration to the landowner in exchange for using the property or when the landowner acts in a manner constituting willful or wanton misconduct.

¶ 10 In its motion for summary judgment, WSI argued that Jean was using its property for recreational purposes for which she did not give consideration and, as a result, § 70-16-302, MCA, shielded it from liability for her injuries and death. The District Court agreed and granted the motion. The Saaris contend the District Court erred in doing so because genuine issues of material fact exist regarding the "consideration" and "willful and wanton misconduct" criteria in § 70-16-302(1), MCA, either of which—if resolved in their favor—would result in WSI losing its immunity from liability.

¶ 11 The Saaris first argue that there are genuine issues of material fact regarding whether WSI received valuable consideration in exchange for use of the property by Jean and the youth group. As stated above, § 70-16-302(1), MCA, relieves a landowner from liability for injuries to persons using the landowner's property for recreational purposes where the landowner does not receive valuable consideration for that use. It is not necessary that the user furnish the consideration, but the consideration must be given by someone to create access to the property for the user. Simchuk, 253 Mont. at 227,833 P.2d at 162.

¶ 12 In support of its motion for summary judgment, WSI submitted the affidavit of its chief executive officer which stated that the youth group neither paid WSI any fees to use the property for sledding nor rented or purchased any equipment from WSI on the night Jean was injured. This affidavit establishes the absence of genuine issues of material fact regarding whether WSI received valuable consideration for Jean's use of its property. WSI having met its initial burden on summary judgment, the Saaris were required to come forward with substantial evidence raising a genuine issue of material fact. See Contreras, ¶ 10, 54 P.3d 983.

¶ 13 The Saaris concede that Jean and the youth group did not pay any fees to use WSI's property on the evening of the accident. They argue, however, that WSI still received valuable consideration in exchange for Jean's use of the property because WSI benefits financially from after-hours sledders. Specifically, the Saaris contend that

[i]t is very likely that people allowed to tube at Big Mountain when it is closed to the public will come back during operating hours. It is also likely that the people tubing after hours would purchase food and equipment from vending machines, restaurants and shops at the ski hill base. WSI directly profits from people spending money at the businesses operated by its lessees.

There are two problems with the Saaris' argument.

¶ 14 First, while it is true that it is not necessary for the ultimate user—in this case, Jean—to be the one who furnishes the valuable consideration to the property owner for the use of the property, it is necessary that the consideration be given "to create access to the premises for the ultimate user." Simchuk, 253 Mont. at 227, 833 P.2d at 162 (emphasis added). The Saaris present no evidence—indeed, they do not even contend—that anyone gave valuable consideration specifically so that Jean could access WSI's property on the evening at issue. Moreover, the Saaris advance no legal authority in support of the proposition that the economic benefit received by WSI when it receives valuable consideration from another person for that person's own recreational use of WSI's property at a different point in time constitutes valuable consideration given on Jean's behalf for her use of the property on the night in question. Rule 23(a)(4), M.R.App.P., requires that a party's arguments be supported with citation to legal authority, and we will not address arguments for which legal authority is not advanced. State ex rel. Mazurek v. District Court, 2000 MT 266, ¶ 31, 302 Mont. 39, ¶ 31, 22 P.3d 166, ¶ 31.

¶ 15 Second, the Saaris' remaining assertions regarding WSI's indirect economic benefit from after-hour inner tube sledders are purely speculative. The Saaris offer no factual basis in the form of affidavits or otherwise for these assertions. As stated above, the party opposing summary judgment "must present material and substantial evidence, rather than mere conclusory or speculative statements, to raise a...