Hager et al v. Live Nation Motor Sports, Inc., No. 1:2008cv22145 - Document 46 (S.D. Fla. 2009)
Court Description: ORDER denying 34 Motion for Summary Judgment. Signed by Senior Judge James Lawrence King on 9/29/2009. (jw)
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Hager et al v. Live Nation Motor Sports, Inc. Doc. 46 IN THE UNITED STATES DISTRICT CCIlURT FOR THE SOUTHERN DISTRICT OF F1,C)IUDA MIAMI DIVISION CASE NO. 08-CV-22145/KING MARK E. HAGER, et al., Plaintiffs, VS. LIVE NATION MOTOR SPORTS, ZNC., Defendant. I ORDER DENYING MOTION FOR SUMMARY il!:JDGMENT THIS CAUSE comes before the Court upon Defendant's Motion for Summary Judgment (DE #34). A Response (DE #40) and Reply (DE #42) have been fi11:l.i~ and the Court heard oral arguments1 from both parties on September 24, 2009 (DE #44). Aflelr careful consideration and for the reasons stated below, the Court determines that the Mot1o.n for Summary Judgment should be DENIED. I. Factual Background Mark Hager is a stunt driver. He was performing a car stunt a.it Dolphins Stadium where he was supposed to drive up a ramp, do a spiral jump, and land on other catch cars. However, there was a dip in the dirt right in front of the ramp, which caused hirri to lose speed, and his car fell short of the catch cars. He was severely injured. He claims that Ihe Live Nation crew was grossly negligent in failing to ensure that the ramp approach was properly smoothed, thus causing his injuries. I At the conclusion of oral arguments the Court discussed its reasoning and tentative: conclusion, and requested counsel to submit a draft Order. The Court decided to dictate its own Order and has S I Bnotified counsel. The requested drafts have not been received, nor are they needed. Dockets.Justia.com Live Nation is a company that produces and puts on show; (md "thrill acts" that involve monster trucks and stunt driving. They organize the event and bu11l.lthe track and ramps to the performers' specifications. Mark Hager has performed in Live Nation shows many times doing car stunts, including the same "spiral jump" stunt he performed the n~ght of the crash. Hager entered into an agreement with Live Nation to perfc~nnthe spiral jump stunt in a Live Nation show at Dolphins Stadium, as part of a larger show thait included several acts. The agreement provided that Live Nation would pay Hager $1 1,000. ' I'he parties also executed a release agreement wherein Hager released Live Nation from any liability for negligence in connection with the event. The parties submitted two videos in support of their filing:;. One video is of the crash itself, which shows Hager's car speeding toward the ramp, hitting the dip, and then going up the ramp and landing short of the catch cars. The second video shows I.3ager having a conversation with Daniel Allen, Senior Director of Operations for Live Nation, before the show. In that conversation, Allen acknowledges that there appears to be a dip jusl in front of the ramp that should be filled, and if it was not filled in it would slow Hager's cal ~iownand could result in a crash. On the video, Hager and Allen agree that the dip should be filled in with dirt before the show. Apparently, the dip was filled in properly before the show, and Hager did several practice luns where he drove over that area (but not up the ramp) and was sat is fied with the speed he was achieving. the construction and Lenny Fuller was the Live Nation employee in charge of' ovel-s~.:eing ~naintenanceof the track and ramp. He has roughly 30 years experience in this area, and has been working for Live Nation in this capacity for some time. At somt: point before or during the slhow,Fuller received the show schedule from Event Director James h11)ele.Moele was in charge of the agenda and was the person in charge of keeping the tihow running on time and coordinating all the acts. When Fuller received the agenda, he sav, that Hager was scheduled to perform his stunt after the monster truck rally and right before the I m 'ennission. Fuller knew that the monster trucks would tear up the dirt in front of the ramp and iilsc) knew that Hager's stunt required several of the catch cars to be moved right before the stunlt. 'Thus, Fuller believed that he would not have sufficient time after the monster truck portion lo fix the dirt approaching the ramp before Hager's stunt. He called Moele, expressed his concetns, and asked him to change Hager's stunt to after the intermission. Moele refused, saying 111eshow would proceed as planned. On the night of the show, the monster trucks disturbed tlil,: dirt in front of the ramp, exposing the dip, as Fuller expected. Right after the monster t n ~ c t sfinished their act, Fuller assigned two of his men to go and re-level the dirt approaching H a,;er's ramp. However, since several of the catch cars also had to be moved at that time, and Fulll,r believed that it was more important that the cars be moved correctly, he assigned his two mc:ilst experienced men to move the cars, while he personally supervised the car moving. This lefl o~llytwo inexperienced men, whom he assigned to fix the dirt in front of the ramp. This they cli~,l.Fuller did not personally inspect the "dip," because he was supervising the car moving. He testified in deposition that in hindsight he should have inspected it. Apparently, the dirt was not re-leveled properly, and the d ~ premained. Thus, when I-[ager attempted to perform his stunt, his car hit the dip, causing hi:; I;ar to lose speed and swing slightly to one side. Since he did not have enough speed to make it across to the catch cars, he required months of landed short and was severely injured. He fractured several vei-tlOhbrae, therapy, and has permanently lost sensation to several parts of his body. Hager has sued Live Nation for gross negligence, and Live Nation has moved for suirnmirr y judgment. Legal Standard for Summary Judgment 11. Summary judgment is appropriate where the pleadings and si ~pportingmaterials establish that there is no genuine issue as to any material fact and that tht: moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56; Celotex Gorp. v C'atrett, 477 U.S. 317, 322 ( 1986). If the record as a whole could not lead a rational fact-fincle r to find for the nonmoving party, there is no genuine issue of fact for trial. See Matsushita Eltlc Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,587 (1986). The moving party bears the burden of pointing to the part o r the record that shows the absence of a genuine issue of material fact. See Adickes v. S.H Krt?s,v& CO.,398 U.S. 144, 157 (1970); Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (1 lth Cir. 15197). Once the moving party establishes the absence of a genuine issue of material fact, the burd~:nshifts to the nonmoving party to go beyond the pleadings and designate "specific facts; showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324; see also Chanel, Inc. 11. Itai'illn Activewear of Fla., Inc,, 931 F.2d 1472, 1477 (1 lth Cir. 1991) (holding that, to meet its b~irden,the nonmoving party must "come forward with significant, probative evidence demonstrat~rg the existence of a triable issue of fact."). On a motion for summary judgment, the court must view tX11:evidence and resolve all inferences in the light most favorable to the nonmoving party. See hlnderson v. Liberty Lobby, inc., 477 U.S. 242, 255 (1986). However, a mere scintilla of c:\rdence in support of the rlonmoving party's position is insufficient to defeat a motion for surrli nary judgment. See id. at 252. If the evidence offered by the nonmoving party is merely cc~lorableor is not significantly probative, summary judgment is proper. See id. at 249-50. 111. Defendant's Arguments for Summary Judgment Plaintiffs' claim is that Defendant was grossly negligent \vl'ben Daniel Allen and Lenny Fuller failed to properly maintain the approach to the ramp, knowing that Hager was relying on them to do so and knowing the consequences of failing to do so. F1Il;i.intiffsalso claim that James Moele was grossly negligent in refirsing to adjust the time schedule! knowing that there was not enough time to prepare the ramp approach before Hager's stunt. Defendant has moved for summary judgment and makl:rs two arguments: 1) Hager executed a release, agreeing not to hold Defendant liable for negligence, and 2) Defendant was not grossly negligent. A. The Contractual Release Argument Plaintiff signed a release form in which he releases Live Ihation from liability for any "or otherwise." Releases claim arising out of the stunt show, whether caused by negligec.~~;: containing this language have been interpreted as including gross negligence, and are enforceable. See Borden v. Phillips, 752 So.2d 69, 73 (Fla. 1st C11I:'A 2000). Plaintiff does not dispute this. However, Plaintiff argues that a release which bars recover,:y for gross negligence in this situation is unenforceable because of Florida Statute 549.09, That statute provides the following: Any person who operates a closed-course motorsport faci1il:y may require, as a condition of admission to any nonspectator part of such facility, the signing of a liability release form. The persons or entities owning, leasing, or operating lhe facility or sponsoring or sanctioning the motorsport event shall not be liable to a notu:pectator or her or his heirs, representative, or assigns for negligence which proximaterlgl, causes injury or property damage to the nonspectator within a nonspectator area durir~gthe period of time covered by the release. The statute defines "negligence" as follows: 'Negligence' means all forms of negligence, whether mi:;fii:asance or nonfeasance, and but does not include failure to warn against an existing or future dangerous ccrN~~.dition, gross negligence, recklessness, or willful and wanton c.onduc,~:. Plaintiff argues that this statute means the operator of a motorsports facility cannot disclaim liability for gross negligence. Although indirect, that is i:n fact what the statute says. The statute allows motorsports facility operators to disclaim liability for negligence, but specifically exempts gross negligence from the definition of neg,ligence. When the legislature expressly permits certain conduct, and then specifically e:rtclutlers certain conduct from the definition of what is permitted, the legislature intends to prohibit the excluded conduct. Thus, the specific exclusion of gross negligence from the definition of what is permitted indicates that requiring a release from gross negligence is not permitted. In response, Defendant argues that the statute, by its ternls, does not apply to an event held at Dolphins Stadium. The statute applies to a "closed-court niotorsport facility," which is defined as "a closed-course speedway or racetrack designed and intended for motor vehicle competition, exhibitions of speed, or other forms of recre,ation ~nvolvingthe use of motor vehicles, including motorcycles." Ha. Stat. 549,09(1)(a). Delilndant argues that Dolphins Stadium is not a closed-course motorsport facility, but rather a foo .b all and baseball stadium that was altered for the monster truck show on the day of the event. Dei?ndantYsinterpretation would be an overly narrow reading of the statute. It would make little senst,,for the legislature to extend this protection to events held only at the several existing car racing f:~cilitiesaround the state, but withhold the same protection froni the many events held at st;iicliums that are converted to motorsports facilities. Rather, a more logical reading of the slalute would be that Dolphins Stadium became "designed and intended for motor vehicle compel 111 on" when the promoters and crewmembers spent days before the event converting it for just such a use. Thus, the statute applies to the motorsport event in this case, and Defendant was not l~ermittedto require a release for its alleged gross negligence. B. The Gross Negligence Argument Defendant argues that, even if the contractual release is 1n1,)tvalid, Defendant was not grossly negligent. The parties agree on the standard for gross negligence: "To hold a party liable for gross negligence, the district court must find that the defendant had knowledge of the existence of circumstances which constitutes a 'clear and present cla iger' and yet still undertakes 'a conscious, voluntary act or omission ... which is likely lto result in injury."' Central State Transit & Leasing Corp. v. Jones Boat Yard, Inc., 206 F.3d 1373, I:' 77 (1 1th Cir. 2000) (quoting Sullivan v. Streeter, 485 So. 2d 893, 895 (Fla. 4th DCA 1986)). Defendant argues that, under any interpretation of the lacts, Defendant's employees cannot be said to have undertaken a voluntary action likely to result in injury. However, in close cases, the question of whether conduct amounts to gross negligence is a question that should be left to the jury. See Foy v. Fleming, 168 So. 2d 177, 180 (F'la. 1r;i DCA 1964) (" 'In doubtful cases, the question of whether such negligence is ordinary or gro!,s Is, as we have heretofore held, one which under appropriate instructions should be submitled to the jury.' ") (quoting Carraway v. Revell, 116 So. 2d 16, 23 (Fla. 1959)); Cleanvater v. Thomas, 446 So. 2d 1160, 1162 (Fla. 2d DCA 1984) ("The question remaining as to whether it was due care sufficient to negate gross negligence was a question for the trier of fact, and acr:cm-dingly, summary judgment should have been denied."). Thus, summary judgment on this issut: l~vouldnot be appropriate. IV. Conclusion Accordingly, after careful consideration and the Court being otherwise l l l y advised, it is ORDERED, ADJUDGED, and DECREED that Defendant's Pvlc~tionfor Summary Judgment (DE #34) be, and the same is hereby DENIED. DONE and ORDERED in Chambers, at Miami, Miami-Dirle County, Florida, this 2gth day of September, 2009. &i$k%k&:;ig* ITED STATES DI'SI1TRICT Cc: Counsel for Plaintiff Don A. Russo Don Russo 7990 Red Road Miami ,FL 33 143 305-665-7171 Fax: 665-7146 Email: drusso@russopa.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Elizabeth Koebel Russo Russo Appellate Firm 6101 SW 76th Street Miami ,FL 33 143 305-666-4660 Fax: 666-4470 Email: ekr@russoappeals.com ATTORNEY TO BE NOTICED Counsel for Defendant Phillips Richard & Rind Gregory Morgen Cesarano Carlton Fields 100 SE 2nd Street Suite 4000 PO Box 019101 Miami, FL 33131-9101 305-530-0050 Fax: 530-0055 Email: gcesarano@carltonfields.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Cristina Alonso Carlton Fields 100 SE 2nd Street Suite 4000 PO Box 0 19101 Miami, FL 33131-9101 305-530-0050 Fax: 530-0055 Email: calonso@carltonfields.com ATTORNEY TO BE NOTICED Olga M. Vieira Carlton Fields 100 SE 2nd Street Suite 4000 PO Box 0 19101 Miami, FL 33131-9101 305-530-0050 Fax: 305-530-0055 Email: ovieira@carltonfields.com ATTORNEY TO BE NOTICED
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