Orton v. Masquerade Inc.

The district court did not err in finding that an allegedly negligent performer was an independent contractor as a matter of law, notwithstanding the defendants' oral agreements with the performer establishing the time of performance and the amount of payment, since the defendants did not dictate the manner, method or means of the execution of the dance routines.

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In this personal-injury case, Daniel Lee Orton sued Masquerade, Inc., Christopher Wynne, and Shawn Hickum, alleging that Masquerade and Wynne were vicariously liable for the injury he suffered as a result of Hickum’s negligence during a performance at Masquerade. The trial court granted summary judgment in favor of Masquerade and Wynne, and Orton appeals, arguing that the trial court erred in finding as a matter of law that Masquerade and Wynne were not vicariously liable for Hickum’s negligence because Hickum was an independent contractor. For the reasons noted infra , we affirm. Viewed in the light most favorable to the nonmovant,1 the record shows that in the early morning hours of July 22, 2007, Orton was a patron at Masquerade, which operates as a nightclub and concert venue. The entertainment that night entailed a deejay —Masquerade employee Wynne —playing dance music during a drag show, in which female impersonators lip-synced to songs played on the venue’s sound system while performing lively dance routines. Wynne hired the performers for that night’s festivities via oral agreements, paid them in cash based on door receipts, and told them the approximate time they would be going on stage. But neither he nor any other Masquerade employee otherwise exercised any supervisory control over the performers’ specific routines.

Not long before the drag show was scheduled to conclude, Hickum —who performed under the stage name “Genre” —began his routine, in which he sang and danced while dressed as a dominatrix,2 brandishing a whip. At some point during his performance, Hickum cracked his whip in the direction of the audience at the edge of the stage and, in doing so, struck Orton in the left eye, seriously injuring him.

Orton v. Masquerade Inc.

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