Sivak v. Cody Rides, LLC et al

Filing 79

ORDER: IT IS HEREBY ORDERED that: 1. Defendant Show Productions d/b/a Audio Vision's Motion for Summary Judgment 53 is GRANTED; 2. Defendant's SnowtaNYE's and Tom Collins Group's Motion for Summary Judgment 55 is GRANTED; and 3. Plaintiff's claim against these Defendants is DISMISSED with prejudice. (Written Opinion). Signed by The Hon. Paul A. Magnuson on 3/29/2018. (LLM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Joseph J. Sivak, Jr.,

Civ. No. 17-902 (PAM/KMM)
Plaintiff,

v.

MEMORANDUM AND ORDER

Cody Rides, LLC; Tom Collins Group,
LLC; Show Productions, Inc. d/b/a
Audio Visions; and SnowtaNYE, LLC,
Defendants.

This matter is before Court on Motions for Summary Judgment by Defendants
Show Productions, Inc. d/b/a Audio Visions, SnowtaNYE, LLC, and Defendant Tom
Collins Group, LLC. For the following reasons, the Motions are granted.
BACKGROUND
Plaintiff Joseph J. Sivak, Jr., and a friend celebrated New Year’s Eve 2016 by
attending an event at the Minneapolis Convention Center called the SnowtaNYE Music
Festival. The event featured music, a light show, and other entertainment, including an
indoor Ferris wheel. While riding the Ferris wheel, Sivak either climbed out or fell out
and suffered serious injuries. 1
Sivak then brought this lawsuit against the various entities involved in the
SnowtaNYE event. Tom Collins Group and its related entity SnowtaNYE (together, the
“Collins Defendants”), were the promoters of the event, and as such were responsible for
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Although Sivak argues at length that there is a factual dispute regarding how he was
injured, that factual dispute is immaterial to the legal issues presented in these Motions.

selling tickets, paying vendors, and hiring Audio Visions. Audio Visions was the selfdescribed “producer” of the music and light show at the event. In that capacity, Audio
Visions hired Defendant Cody Rides, LLC, to bring the Ferris wheel to the event,
although Audio Visions contends that the idea for an indoor amusement ride originated
with the Collins Defendants. There are no written contracts evidencing any of the
arrangements among the four Defendants.
Sivak’s 11-paragraph Second Amended Complaint does not contain any separate
counts. His only claim against the Collins Defendants and Audio Visions is that they
“carelessly and negligently permitted Defendant Cody Rides, LLC, to operate its Ferris
wheel without proper maintenance or inspection.” (2d Am. Compl. (Docket No. 27) ¶ 8.)
Sivak’s expert witness opines that Cody Rides was negligent in improperly maintaining,
inspecting, and/or operating the Ferris wheel, but he does not offer any opinion with
respect to the alleged negligence of either the Collins Defendants or Audio Visions.
(Becker Decl. (Docket No. 65) Ex. C.)
The Collins Defendants and Audio Visions now seek summary judgment on
Sivak’s negligence claim against them. They argue that they cannot be vicariously liable
for Cody Rides’ alleged negligence, and that they did not owe Sivak an independent duty
to ensure his safety on the Ferris wheel.
DISCUSSION
A.

Standard of Review
Summary judgment is proper if there are no disputed issues of material fact and

the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The
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Court must view the evidence and inferences that “may be reasonably drawn from the
evidence in the light most favorable to the nonmoving party.” Enter. Bank v. Magna
Bank of Mo., 92 F.3d 743, 747 (8th Cir. 1996). The moving party bears the burden of
showing that there is no genuine issue of material fact and that it is entitled to judgment
as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A party opposing
a properly supported motion for summary judgment may not rest on mere allegations or
denials, but must set forth specific facts in the record showing that there is a genuine
issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
B.

Negligence
A claim for negligence requires the violation of a duty of care. Domagala v.

Rolland, 805 N.W.2d 14, 22 (Minn. 2011). Whether there is a duty is a question of law.
Id. (citing Bjerke v. Johnson, 742 N.W.2d 660, 664 (Minn. 2007)). The duty of care
arises either from the defendant’s own conduct, from the conduct of one for whom the
defendant is legally responsible, or when there is a special relationship between the
defendant and the injured party. Bjerke, 742 N.W.2d at 665. Ultimately, Sivak must
establish not only a special relationship, but that “the harm represented by [the Ferris
wheel] is something [the moving Defendants are] in a position to protect against and
should be expected to protect against.” Erickson v. Curtis Inv. Co., 447 N.W.2d 165, 168
(Minn. 1989).
Sivak contends that the Collins Defendants are liable because they signed the
permit for occupancy of the convention center for the SnowtaNYE event. The permit
required the Collins Defendants to “take all precautions to protect the public against
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injury.” (Wittmers Decl. (Docket No. 66) Ex. H at 3.) Sivak argues that this permit
created a duty on behalf of the Collins Defendants to affirmatively act to protect
attendees at the festival. As to Audio Visions, Sivak argues only that because Audio
Visions’ role in the festival is the subject of dispute, summary judgment is inappropriate.
The operator of a festival “owes a duty of reasonable care to its patrons.”
Dahlberg v. Mid-Am. Festivals Corp., 367 N.W.2d 112, 113 (Minn. Ct. App. 1985). But
“actual or constructive knowledge of the dangerous condition by the defendant is a
necessary prerequisite to recovery by the plaintiff.” Phillips v. Wild Mountain Sports,
Inc., 439 N.W.2d 58, 59 (Minn. Ct. App. 1989) (citation omitted). Thus, even if the
Collins Defendants or Audio Visions were the “operators” of the event such that they had
a duty to protect Sivak from harm, he has not come forward with any evidence regarding
whether these Defendants knew or should have known of the allegedly dangerous
condition. Indeed, as Sivak’s expert witness opines, the incident was caused by improper
maintenance, improper manufacture, or excessive wear on the hinge of the seat in which
Sivak was riding. None of these defects would have been apparent to either the Collins
Defendants or Audio Visions; rather, the only evidence is that the Ferris wheel’s
maintenance and inspection was the sole responsibility of Cody Rides.
Nor does Sivak have any evidence or legal authority to underpin his apparent
contention that the Collins Defendants and Audio Visions are vicariously liable for Cody
Rides’ alleged negligence.

His invocation of Dahlberg on this issue is unavailing,

because the amusement-park operator’s negligence in Dahlberg was not vicarious, but
arose from the operator’s own actions. See Dahlberg, 367 N.W.2d at 114 (finding that
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operator could be negligent because of its role in the events leading to the plaintiff’s
injury). There is no basis for the imposition of vicarious liability here.
CONCLUSION
Sivak has failed to establish any legal basis for the duty he seeks to impose on the
moving Defendants. Accordingly, IT IS HEREBY ORDERED that:
1.

Defendant Show Productions d/b/a Audio Visions’s Motion for Summary
Judgment (Docket No. 53) is GRANTED;

2.

Defendants SnowtaNYE’s and Tom Collins Group’s Motion for Summary
Judgment (Docket No. 55) is GRANTED; and

3.

Plaintiff’s claim against these Defendants is DISMISSED with prejudice.

Dated: March 29, 2018

s/ Paul A. Magnuson
Paul A. Magnuson
United States District Court Judge

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