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Saari v. Winter Sports2/25/2003
WSI directly profits from people spending money at the businesses operated by its lessees.
There are two problems with the Saaris' argument.
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.
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 genuine issue of material fact." Gonzales, 9. The Saaris' statements that certain matters are "likely" do not constitute material and substantial evidence; indeed, they do not constitute evidence at all.
The Saaris point out, however, that they requested business and financial documents from WSI during discovery which would have supported their contentions here, but WSI refused to produce the documents. They argue that WSI's refusal to provide the requested information, when viewed in the light most favorable to them, establishes the existence of a genuine issue of material fact regarding whether WSI received valuable consideration.
On receiving the Saaris' discovery requests, WSI moved for--and the District Court granted--a protective order. The proper method by which to challenge WSI's refusal to provide the documents was to appeal the District Court's protective order. The Saaris have not done so. Moreover, their assertion that WSI's refusal to provide the documents somehow indicates that it did receive valuable consideration for the use of its property is entirely speculative. An absence of evidence simply cannot--under law or common sense--establish the existence of a genuine issue of material fact. We conclude that the Saaris have failed to establish the existence of genuine issues of material fact regarding whether WSI received valuable consideration for Jean's use of its property on the evening of her accident.
The Saaris also argue that genuine issues of material fact exist regarding whether WSI committed willful or wanton misconduct which would make it liable for Jean's injuries under ยง 70-16-302(1), MCA. They contend that WSI's failure to prevent the youth group from sledding after hours or to supervise the group's activities constitutes willful or wanton misconduct in light of WSI's knowledge of the dangers involved and reflects WSI's gross indifference to human life and safety. Again, howeve
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