The opinion of the court was delivered by: Thomas A. Varlan United States District Judge
This civil action is before the Court on defendants Westgate Resorts, Inc., Westgate Resorts, Ltd., Westgate Resorts, Ltd., L.P., and Westgate Smoky Mountain Resort at Gatlinburg, Inc.'s motion for summary judgment [Doc. 15]. Plaintiffs have filed an opposition to this motion [Doc. 17] and the matter is now ripe for adjudication.
The Court has carefully considered the pending motion, along with the parties' briefs, affidavits, and other relevant pleadings. For the reasons set forth herein, defendants' motion for summary judgment [Doc. 15] will be GRANTED in part and DENIED in part.
Westgate Resorts, Ltd., also registered in Tennessee as Westgate Resorts, Ltd., L.P. (hereinafter "Westgate"), owns and operates a timeshare development in the Eastern District of Tennessee, in or near Gatlinburg. (Compl. ¶ 7.) Prior to March 25, 2007, plaintiffs, Richard and Nicki Sparks, owned a timeshare with Westgate. (Compl. ¶ 8.) After an unsuccessful attempt to sell their timeshare through other methods, Mr. Sparks placed a "For Sale" sign listing his property on or near Westgate's business premises on March 24, 2005. (Compl. ¶ 8.) Mr. Sparks concedes that he did not have permission from anyone affiliated with Westgate to place his sign there.
The next day, as Mr. Sparks and his family drove past the Westgate Resort office, he noticed that his sign had been removed. He went on to Westgate's property to find the sign and discovered it behind garbage dumpsters. (Compl. ¶ 8.) Mr. Sparks then went onto the sales floor to discuss the removal of his sign with a supervisor. (Compl. ¶ 8.) Mr. Sparks was directed to the sales office off the main floor. A supervisor at Westgate, Dale Campbell,*fn1 told Mr. Sparks that he was not allowed to put the sign on Westgate's property. [Doc. 17-2, pp.15-16.]*fn2 Defendant John Keller, a Westgate sales representative, overheard this conversation and approached Mr. Sparks and told him that if he replaced the sign, Mr. Keller was going to take it down. [Doc. 17-2, pp.15-16.] Mr. Keller suggested that he and Mr. Sparks step outside. Mr. Campbell stated that he heard Mr. Sparks respond that he knew someone was going to want to fight him but Mr. Sparks denied making such a comment. [Doc. 17-3, p.18; Doc. 17-4, p.15.] Mr. Keller was an employee of Westgate who was at the office at the time of the incident to pick up his paycheck. [Doc. 17-2, p.15.] Mr. Keller and Mr. Sparks left the sales office and went outside followed by other Westgate employees. Once outside, Mr. Keller struck Mr. Sparks causing his injuries. (Compl. ¶ 8.) There is some dispute over who was the initial aggressor and the details of the physical altercation, but those facts are not material to the issue of Westgate's liability.
Under Fed. R. Civ. P. 56(c), summary judgment is proper if "the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." The burden of establishing that there is no genuine issue of material fact lies upon the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 330 n.2 (1986). The court must view the facts and all inferences to be drawn therefrom in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Burchett v. Kiefer, 310 F.3d 937, 942 (6th Cir. 2002). To establish a genuine issue as to the existence of a particular element, the non-moving party must point to evidence in the record upon which a reasonable jury could find in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The genuine issue must also be material; that is, it must involve facts that might affect the outcome of the suit under the governing law. Id.
The judge's function at the point of summary judgment is limited to determining whether sufficient evidence has been presented to make the issue of fact a proper jury question, and not to weigh the evidence, judge the credibility of witnesses, and determine the truth of the matter. Id. at 249. Thus, "[t]he inquiry performed is the threshold inquiry of determining whether there is need for trial - whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party. Id. at 250.
A. Liability of Westgate Resorts, Inc. and Westgate Smoky Mountain Resort at Gatlinburg, Inc.
Plaintiffs filed their complaint against Westgate Resorts, Inc., Westgate Resorts, Ltd., Westgate Resorts, Ltd., L.P., and Westgate Smoky Mountain Resort at Gatlinburg, Inc. However, only Westgate Resorts, Ltd., also registered in Tennessee as Westgate Resorts, Ltd., L.P., owns, manages, or otherwise controls the business operations of the facility at which the incident giving rise to this case occurred. Westgate Resorts, Inc. and Westgate Smoky Mountain Resort at Gatlinburg, Inc. have no ownership interest, management power, control, or any other involvement with the business activities at this facility and they did not employ, or otherwise control the sales staff and the ...