Patton v. United States Of America Rugby Football, Union, LTD., 381 Md. 627; 851 A.2d 566; 2004 Md. LEXIS 308

Patton v. United States Of America Rugby Football, Union, LTD., 381 Md. 627; 851 A.2d 566; 2004 Md. LEXIS 308

Judith Edwards Patton, Individually, and as the surViving Spouse of Donald Lee Patton, and as Personal Representative and Executor for the Estate of Donald Lee pattOn, et al. V. United States of America Rugby Football, Union, ltd. D/b/a USA Rugby, et al.

No. 113, September Term, 2003

Court of Appeals of Maryland

381 Md. 627; 851 A.2d 566; 2004 Md. LEXIS 308

June 10, 2004, Filed

Prior History: [***1] Appeal from the Circuit Court for Anne Arundel County pursuant to certiorari to the Court of Special Appeals. Rodney C. Warren, JUDGE.

Patton v. USA Rugby, 379 Md. 224, 841 A.2d 339, 2004 Md. LEXIS 61 (2004)

Disposition: Affirmed.

Headnotes: Torts – Negligence – Duty – Special Relationship

An amateur rugby player and his father, who was a spectator, were struck by lightning at a rugby tournament. The player was injured and the spectator killed. Various members of the family filed suit alleging negligence against the rugby tournament organizers, the game referee, and related organizations for not taking precautions to avert the incident.

Held: The element of dependence and ceding of control by the injured party that is needed to find a “special relationship” is absent in this case. Our decision is consistent with our view of narrowly construing the “special relationship” exception so as not to impose broad liability for every group activity. The rugby player and spectator were free to leave the voluntary, amateur tournament at any time and their movements were not restricted by the tournament organizers. An amateur sporting event is a voluntary affair, and the participants are capable of leaving the field under their own volition if they feel their lives are in danger. The changing weather conditions were visible to all competent adults. The spectators and participants could have sought shelter at any time they deemed it appropriate to do so. It is unreasonable to impose a duty on the organizers of amateur outdoor events to warn spectators or adult participants of a weather condition that everyone present is fully able to observe and react to on his or her own. The approach of a thunderstorm is readily apparent to reasonably prudent adults and, therefore, it is every adult ‘s responsibility to protect himself or herself from the weather. There was no “special relationship” and, therefore, no legal duty to protect spectators and participants from the storm.

Counsel: Argued by W. David Allen of Crofton, MD. for Appellants.

Argued BY Kristine A. Crosswhite (Crosswhite, McKenna, Limbrick & Sinclair, LLP of Baltimore, MD) on brief for Appellees.

Judges: Bell, C.J., Raker, Wilner, Cathell, Harrell, Battaglia, Greene, JJ.

Opinion by Harrell, J. Bell, C.J., joins in judgment only.

Opinion by: Harrell


[*630] [**567] Opinion by Harrell, J.

On 17 June 2000, Robert Carson Patton, II, and his father, Donald Lee Patton, while at an amateur rugby tournament in Annapolis, were struck by lightning. Robert, a player in the tournament, was seriously injured, but survived. Donald, a spectator watching his son play, died. Robert and various other members of the Patton family filed suit in the Circuit Court for Anne Arundel County alleging negligence against the rugby tournament organizers, referee, and related organizations with regard to the episode.

Defendants filed Motions to Dismiss arguing they owed no legal duty to Robert and Donald Patton. A hearing was held and, on 10 July 2003, the Circuit Court dismissed the action. The Patton family appealed. This Court, on its own initiative and before the appeal could be decided in the Court of Special Appeals, issued a writ of certiorari to determine whether any of the defendants, under the circumstances alleged in the complaint, owed a legal duty [***2] to Robert and Donald Patton. Patton v. USA Rugby, 379 Md. 224, 841 A.2d 339 (2004).


A. The Lightning Strike

Based on Appellants’ amended complaint, we assume the [*631] truth of the following factual allegations: n1

[**568] Sometime during the early morning of 17 June 2000, Robert and Donald Patton arrived at playing fields adjacent to the Annapolis Middle School in Anne Arundel County, Maryland. Robert was to play rugby for the Norfolk Blues Rugby Club. Donald intended to support his son as a spectator. Robert and Donald, along with other participants and spectators, placed their equipment and belongings under a row of trees adjacent to the playing fields.

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n1 See Valentine v. On Target, Inc., 353 Md. 544, 548, 727 A.2d 947, 949 (1999) (“as the result of the trial court’s granting a motion to dismiss, as opposed to the granting of summary judgment or judgment entered after trial, the Court will assume the truth of all well- pleaded facts and any reasonable inferences that can be properly drawn therefrom”) (citations omitted).

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The rugby tournament was coordinated by Steven Quigg and was sanctioned by the United States of America Rugby Football Union, Ltd., d/b/a USA Rugby, and Mid-Atlantic Rugby Football Union, Inc. Rugby matches involving over two dozen teams began at approximately 9:00 a.m. and were planned to continue throughout the day. It was a warm, muggy day. The weather forecast for Annapolis was for possible thunderstorms. At some point prior to the start of the twenty minute match between the Norfolk Blues and the Washington Rugby Football Club (“the match”), a thunderstorm passed through the area surrounding the Annapolis Middle School. At the start of the match, rain commenced; lightning could be seen and thunder could be heard proximate to the lightning flashes. By this time, the National Weather Service had issued a thunderstorm “warning” for the Annapolis area.

Kevin Eager, a member of the Potomac Society of Rugby Football Referees, Inc., was the volunteer referee for the afternoon match in which Robert Patton was a participant. Under the direction of Eager, the match continued as the rain increased in intensity, the weather conditions deteriorated, and the lighting flashed directly overhead. [***4] Other matches at [*632] the tournament ended. Robert Patton continued to play the match through the rain and lightning and his father continued to observe as a spectator until the match was stopped just prior to its normal conclusion.

Upon the termination of the match, Robert and Donald fled the playing fields to the area under the trees where they left their possessions. As they began to make their exit from under the trees to seek the safety of their car, each was struck by lightning. Donald died. Robert Patton sustained personal injuries and was hospitalized, but recovered.

B. Circuit Court Proceedings

Appellants here and Plaintiffs below are Judith Edwards Patton (wife of Donald Patton), acting in both an individual capacity and as personal representative of the estate of Donald Patton; Sophia P. Patton and Robert C. Patton (the parents of Donald Patton); Robert Carson Patton, II; and Meredith Patton (Donald’s daughter). They sued the United States of America Rugby Football Union, Ltd., d/b/a USA Rugby (“USA Rugby”), the Mid- Atlantic Rugby Football Union, Inc. ( “MARFU”), the Potomac Rugby Union, Inc. (“PRU”), the Potomac Society of Rugby Football Referees, Inc. (“Referees’ Society”), [***5] Kevin Eager, n2 and Steven Quigg, alleging that Defendants were liable in tort for the death of Donald Patton and the injuries suffered by Robert Patton. This liability, Appellants contended, was due to Defendants’/Appellees’ failure to employ proper policies and procedures to protect players and spectators at the tournament from lightning strikes.

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n2 Kevin Eager never was served with process.

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Appellants alleged that Appellees each had a duty to, but failed to, do one or more of the following acts:

“(a) Have and implement proper policies and procedures regarding the protection [**569] of players and spectators from adverse weather conditions and lightning; [*633]

“(b) Have and implement a policy regarding the safe evacuation of players and spectators from the fields of play at its matches when lightning is present;

“(c) Safeguard the health, safety, and welfare of the players and spectators at its matches;

“(d) Terminate the rugby match and tournament when lightning is present;

“(e) Monitor and detect dangerous conditions [***6] associated with its matches; and

“(f) Train, supervise, monitor and control actions of officials prior to ensure the safety of the participants and spectators from dangerous lightning strikes.”

On 26 August 2002, the Referees’ Society filed a Motion to Dismiss all claims pending against it on the ground that the Referees’ Society owed no tort duty to Robert or Donald Patton as a matter of law. Thereafter, on 16 September 2002, USA Rugby, MARFU, and Steven Quigg filed a joint Motion to Dismiss in which they adopted the arguments of the Referees’ Society and advanced the additional argument that Maryland’s Recreational Land Use Statute, found in Maryland Code (1974, 2000 Repl. Vol., 2003 Supp.), § 5-1101, et seq. of the Natural Resources Article, conferred tort immunity on them for injuries arising from recreational use of premises, i.e., playing rugby on the Annapolis Middle School fields. n3

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n3 PRU was not served with process at the time that USA Rugby, MARFU, and Mr. Quigg filed their Motion to Dismiss and, consequently, PRU was not included in that motion as a moving party. PRU timely filed an Answer to Appellants’ original Complaint on 15 October 2002, and thereafter, was included as a moving party on all pending defense motions.

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Appellants, on 30 December 2002, filed an amended complaint. On 9 January 2003, USA Rugby, MARFU, PRU, and Mr. Quigg filed a second Motion to Dismiss, or in the alternative, for Summary Judgment. The Motion to Dismiss argued that: (1) Appellees owed the Pattons no legally cognizable tort duty as a matter of law; (2) Appellees are immune from tort liability under Maryland’s Recreational Land Use Statute; [*634] and (3) the claims of Robert were barred by waiver. On 13 January 2002, the Referees’ Society also filed a Motion to Dismiss the amended complaint.

The pending motions were heard on 5 February 2003. The Circuit Court, subsequently, issued an order granting the pending motions to dismiss and, on 17 November 2003, issued a Memorandum Opinion explaining the reasons for the dismissal.

Based on Maryland precedents and caselaw from other jurisdictions, the Circuit Court concluded that Appellees did not owe a duty of care to Robert or Donald Patton. The Circuit Court noted generally that courts in other jurisdictions have found that “landowners” or their equivalent do not have a duty to warn invitees of the risk of lightning. As regards Donald Patton, the Circuit Court stated:

“Decedent [***8] Donald Patton was a nonpaying spectator at a rugby match organized and overseen by [Appellees]. There is no indication from the record that Decedent had entrusted himself to the control and protection of [Appellees], indeed he was free to leave the tournament at any time. Additionally, there is no indication that he had lost the ability to monitor changing weather conditions and act accordingly. While [Appellants] allege the storm began near the beginning of the match, it was not until the conclusion of the game, that Decedent and plaintiff Robert Patton, attempted to escape the storm by running towards [**570] the tree line adjacent to the open field to retrieve their belongings. It was here that both were struck by lightning.

“The inherently unpredictable nature of weather and the patent dangerousness of lightning make it unreasonable to impose a duty upon [Appellees] to protect spectators from the type [of] injury that occurred here.”

As regards Robert Patton, the Circuit Court stated that “while it is arguable that [Appellees] had a greater duty to protect plaintiff Robert Patton, a player/participant from injury, they were under no duty to protect and warn him of [***9] lightening strikes and other acts of nature.” The hearing [*635] judge relied on cases from other jurisdictions involving lightning strikes on golf courses to conclude that “lightning is a universally known danger created by the elements” and, in the absence of evidence that Appellants created a greater hazard than brought about by natural causes, there is no duty to warn and protect. The Circuit Court expressly rejected as grounds for its grant of Appellees’ motions to dismiss both Maryland’s Recreational Land Use Statute, and waiver argument based on language contained in Robert Patton’s alleged execution of a USA Rugby Participant Enrollment Form. This appeal follows, therefore, from a dismissal of the amended complaint based solely on the ground that there was no legal duty owed to Robert or Donald Patton. Appellants present the following question for our consideration:

Did the trial court err, when it found that Appellees had no duty to protect Appellants from lightning injuries and granted Appellees’ motions to dismiss for failure to state a claim upon which relief can be granted?


Maryland Rule 2-322(b)(2) provides for the filing of a motion to dismiss for failure to state a [***10] claim upon which relief can be granted. We have stated that:

The granting of a motion to dismiss is proper when, even if the facts and allegations as set forth in the complaint were proven to be true, the complaint would nevertheless fail to state a claim upon which relief could be granted. . . . It will be affirmed if the record reveals any legally sound reason for the decision.

Valentine v. On Target, Inc., 353 Md. 544, 548-49, 727 A.2d 947, 949 (1999) (citations omitted).



For a plaintiff to state a prima facie claim in negligence, he or she must prove the existence of four elements by [*636] alleging facts demonstrating

“(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant’s breach of the duty.” Remsburg v. Montgomery, 376 Md. 568, 582, 831 A.2d 18, 26 (2003) (quoting Muthukumarana v. Montgomery Co., 370 Md. 447, 486, 805 A.2d 372, 395 (2002), and cases cited therein). Generally, whether there is adequate proof of the required [***11] elements to succeed in a negligence action is a question of fact to be determined by the fact-finder. The existence of a legal duty, however, is a question of law to be decided by the court. Valentine, 353 Md. at 549, 727 A.2d at 949. As established in Maryland jurisprudence over a century ago: there can be no negligence where there is no duty that is due; for negligence is the breach of some duty that one person [**571] owes to another. It is consequently relative and can have no existence apart from some duty expressly or impliedly imposed. In every instance before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which duty would have averted or avoided the injury. . . . As the duty owed varies with circumstances and with the relation to each other of the individuals concerned, so the alleged negligence varies, and the act complained of never amounts to negligence in law or in fact; if there has been no breach of duty. Bobo v. State, 346 Md. 706, 714, 697 A.2d 1371, 1375 (1997) (quoting West Virginia Cent. & P.R. v. State ex rel. Fuller, 96 Md. 652, 666, 54 A. 669, 671-72 (1903)). [***12] “Our analysis of a negligence cause of action usually begins with the question of whether a legally cognizable duty existed.” Remsburg , 376 Md. at 582, 831 A.2d at 26.

When assessing whether a tort duty may exist, we often have recourse to the definition in W. Page Keeton, et al., Prosser and Keeton on The Law of Torts § 53 (5th ed. 1984), which characterizes “duty” as “an obligation, to which the law will give recognition and effect, to conform to a particular [*637] standard of conduct toward another.” Id. In determining the existence of a duty, we consider, among other things: the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered the injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.

Ashburn v. Anne Arundel County, 306 Md. 617, 627, 510 A.2d 1078, 1083 (1986) [***13] (citation omitted). Where the failure to exercise due care creates risks of personal injury, “the principal determinant of duty becomes foreseeability.” Jacques v. First Nat’l Bank of Maryland, 307 Md. 527, 535, 515 A.2d 756, 760 (1986) (citations omitted). The foreseeability test “is simply intended to reflect current societal standards with respect to an acceptable nexus between the negligent act and the ensuing harm.” Dobbins v. Washington Suburban Sanitary Comm’n, 338 Md. 341, 348, 658 A.2d 675, 678 (1995) (quoting Henley v. Prince George’s County, 305 Md. 320, 333, 503 A.2d 1333, 1340 (1986)).

In determining whether a duty exists, “it is important to consider the policy reasons supporting a cause of action in negligence. The purpose is to discourage or encourage specific types of behavior by one party to the benefit of another party.” Valentine, 353 Md. at 550, 727 A.2d at 950. “While foreseeability is often considered among the most important of these factors, its existence alone does not suffice to establish a duty under Maryland law.” Remsburg, 376 Md. at 583, 831 A.2d at 26. As we clarified [***14] in Ashburn: the fact that a result may be foreseeable does not itself impose a duty in negligence terms. This principle is apparent in the acceptance by most jurisdictions and by this Court of the general rule that there is no duty to control a third person’s conduct so as to prevent personal harm to another, unless a “special relationship” exists either between [*638] the actor and the third person or between the actor and the person injured. Ashburn, 306 Md. at 628, 510 A.2d at 1083 (citations omitted). In addition, “a tort [**572] duty does not always coexist with a moral duty.” Jacques, 307 Md. at 534, 515 A.2d at 759 (citing W. Page Keeton, et al., Prosser and Keeton on The Law of Torts § 56 (5th ed. 1984)). We have held that such a “special duty” to protect another may be established “(1) by statute or rule; (2) by contractural or other private relationship; or (3) indirectly or impliedly by virtue of the relationship between the tortfeasor and a third party.” Bobo, 346 Md. at 715, 697 A.2d at 1376 (internal citations omitted).


Appellants allege that a “special relationship” existed between Appellees (USA Rugby, MARFU, [***15] PRU, the Referees’ Society, and Steven Quigg) and Robert and Donald Patton sufficient to recognize the existence of a duty to protect the latter, the breach of which gave rise to an action for negligence.

Appellants argue that:

A participant in a sporting event, by the very nature of the sport, trusts that his personal welfare will be protected by those controlling the event. Stated another way, it is reasonably foreseeable that both the player, and the player’s father, will continue to participate in the match, as []long as the match is not stopped by the governing bodies in charge. It also is reasonably foreseeable that, when matches are played in thunderstorms, there is a substantial risk of injury from lightning. And finally, it is reasonably foreseeable that a father will not abandon his son, when he sees those who have assumed responsibility for his son’s welfare placing his son in a perilous condition . . . .

Appellants essentially contend that the tournament organizers had a duty to protect Robert and Donald, and to extricate them, from the dangers of playing in and viewing, respectively, a sanctioned rugby match during a thunderstorm. [*639] Appellees counter that [***16] “there is no ‘special relationship’ between Mr. Patton, Sr., Mr. Patton and the Appellees which would require the Appellees to protect and warn these individuals of the dangers associated with lightning.” Appellees argue that they “had no ability to control the activities of players or spectators at any time,” and “there is no evidence in the record that Mr. Patton, Sr. and Mr. Patton were dependent upon or relied upon the Appellees in any way, shape or form.”

We said in Remsburg that “the creation of a ‘special duty’ by virtue of a ‘special relationship’ between the parties can be established by either (1) the inherent nature of the relationship between the parties; or (2) by one party undertaking to protect or assist the other party, and thus often inducing reliance upon the conduct of the acting party.” Remsburg, 376 Md. at 589-90, 831 A.2d at 30. We conclude that Appellants here did not establish by either of these methods a triable issue as to the existence of a “special relationship.” Id.

In Remsburg, among other issues, we focused on whether a “special relationship” was created because of an implied or indirect relationship between the parties. [***17] Id. We held that the leader of a hunting party was under no special duty to protect a property owner who was shot by a member of the leader’s hunting party. We found insufficient the relationship of dependence between the leader of the hunting party and the injured property owner. This meant there was no duty on the part of the leader to protect the property owner from being accidentally shot by a hunting party member. 376 Md. at 593, 831 A.2d at 33. In holding that the inherent nature of the relationship between the parties did not give rise to a “special relationship” and, hence, a tort duty, we again approved [**573] the traditional “special relationships” that consistently have been associated with the “special relationship” doctrine. 376 Md. at 593-94, 831 A.2d at 32-33. We adopted previously as Maryland common law § 314A of the Restatement, entitled “Special Relations Giving Rise to a Duty to Aid or Protect,” which provides that:

[*640] (1) [a] common carrier is under a duty to its passengers to take reasonable action

(a) to protect them against unreasonable risk of physical harm . . . .

(2) An innkeeper is under a similar duty to his guests.

(3) [***18] A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.

(4) One who is required by law to take or who voluntarily takes the custody of another under circumstance such as to deprive the other of his normal opportunities for protection is under a similar duty to the other.

Restatement (Second) of Torts § 314A (1965); see Southland Corp. v. Griffith, 332 Md. 704, 719, 633 A.2d 84, 91 (1993). Although the foregoing list is not exhaustive, our caselaw where we have found a duty arises consistently requires an element of dependence that is lacking in the present case. See, e.g., Todd v. Mass Transit Admin., 373 Md. 149, 165, 816 A.2d 930, 939 (2003) (finding that an employee of a common carrier has a legal duty to take affirmative action for the aid or protection of a passenger under attack by another passenger); Southland, 332 Md. at 720, 633 A.2d at 91 (finding that a convenience store, through its employee and by virtue of a special relationship between the business and its customers, owed a legal duty to a customer being [***19] assaulted in store parking lot to call the police for assistance when requested to do so).

As stated in Remsburg, “while we have permitted some flexibility in defining this limited exception, such as including the employer-to-employee relationship and also that of business owner-to-patron, we have been careful not to expand this class of ‘special relationships’ in such a manner as to impose broad liability for every group outing.” Remsburg, 376 Md. at 594, 831 A.2d at 33. Similarly, in Muthukumarana v. Montgomery County, 370 Md. 447, 805 A.2d 372 (2002), we declined to recognize that a “special relationship” existed between two child victims of the sequelae of a domestic dispute and an emergency telephone operator. In Muthukumarana, the operator, [*641] a police services aide, received a frantic call from Ms. Muthukumarana reporting that her husband had assaulted her in their house and then run upstairs. 370 Md. at 468-70, 805 A.2d at 384-86. The police services aide talked with Ms. Muthukumarana on the phone for one minute and forty seconds until the husband returned downstairs and shot and killed the two children huddled at her side [***20] and then himself. Id. Ms. Muthukumarana sued the police services aide and her supervisors alleging that they had a tort duty of care to the decedent children and herself and that that duty was breached by, among other things, a failure to timely advise her to leave the premises. Id.

In Fried v. Archer, the companion case to Muthukumarana, we also declined to find that a “special relationship” existed between a woman who died of hypothermia due to exposure to the elements and an emergency telephone system operator who erroneously reported the location of the woman to police officers on patrol who therefore failed to discover the victim before her demise. In Fried, a communications officer employed by the Harford County Sheriff’s Office received an anonymous [**574] call n4 reporting a female laying semi- conscious in the woods behind a particular building. 370 Md. at 458, 805 A.2d at 379. The communications officer, however, provided police officers with the wrong location of the woman. 370 Md. at 460, 805 A.2d at 379. The responding officers were unable to locate the victim, who died of hypothermia. 370 Md. at 460, 805 A.2d at 380. [***21] The decedent’s mother sued the communications officer and her supervisors alleging that they had a tort duty of care to the decedent and that that duty was breached by the failure to provide the police officers with the decedent’s correct location. 370 Md. at 461, 805 A.2d at 380.

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n4 The call, it turned out, was placed by one of the young men who caused the young woman to become unconscious and placed her in the vulnerable location outdoors on a cold, rainy night.

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We applied the “special relationship” doctrine to the circumstances surrounding the emergency telephone operators in both cases and held that no “special relationship” existed [*642] between them and the plaintiffs. 370 Md. at 486, 805 A.2d at 395. We reasoned that for a “special relationship” to exist between an emergency telephone operator and a person in need of assistance, it must be shown that the telephone operator affirmatively acted to protect the decedent or a specific group of individuals like the decedent, thereby inducing [***22] specific reliance by an individual on the telephone operator’s conduct. 370 Md. at 496, 805 A.2d at 401.

The element of dependence and ceding of self-control by the injured party that is needed under Remsberg and Muthukumarana/Fried is absent in the present case. n5 There is no credible evidence that the two adults, Robert and Donald Patton, entrusted themselves to the control and protection of Appellees.

Accordingly, we follow our admonition in Remsburg to avoid expanding the “special relationship” exception in such a manner as to impose broad liability for every group activity. Remsburg, 376 Md. at 594, 831 A.2d at 33. Our decision here, in line with Remsberg and Muthukumarana/Fried, is consistent with our view of narrowly construing the “special relationship” exception.

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n5 There may be a degree of dependency and ceding of control that could trigger a “special relationship” in, for example, a Little League game where children playing in the game are reliant on the adults supervising them.

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Of the relevant cases from our sister states, we find Dykema v. Gus Macker Enters., Inc., 196 Mich. App. 6, 492 N.W.2d 472 (Mich. Ct. App. 1992) to be particularly persuasive in the present case. In Dykema, the Michigan Court of Appeals held that the sponsors of an outdoor basketball tournament had no duty to warn a tournament spectator of an approaching thunderstorm that ultimately caused his injury. Dykema, 492 N.W.2d at 474-75. A thunderstorm struck the area of the tournament. The plaintiff, while running for shelter, was struck by a falling tree limb and paralyzed. Dykema, 492 N.W.2d at 473.

Like Maryland, Michigan recognizes the general rule that there is no tort duty to aid or protect another in the absence [*643] of a generally recognized “special relationship.” Dykema, 492 N.W.2d at 474. The Michigan court stated that:

The rationale behind imposing a legal duty to act in these special relationships is based on the element of control. In a special relationship, one person entrusts himself to the control and protection of another, with a consequent loss of control to protect himself. The duty to protect is [***24] imposed upon the person in control because he is in the best position to provide a place of safety. Thus, the determination whether a duty-imposing special relationship exists in a particular [**575] case involves the determination whether the plaintiff entrusted himself to the control and protection of the defendant, with a consequent loss of control to protect himself.

Id. (citations omitted). Like the situation of the plaintiff and tournament sponsors in Dykema, Appellants here cannot be said to have entrusted themselves to the control and protection of the rugby tournament organizers. Id. ( “Plaintiff was free to leave the tournament at anytime, and his movements were not restricted by Defendant.”). We do not agree that, as Appellants argue, “the participants in the tournament, in effect, cede control over their activities to those who are putting on the event.” Robert and Donald Patton were free to leave the voluntary, amateur tournament at any time and their ability to do so was not restricted in any meaningful way by the tournament organizers. An adult amateur sporting event is a voluntary affair, and the participants are capable of leaving the playing field on their [***25] own volition if they feel their lives or health are in jeopardy. The changing weather conditions in the present case presumably were observable to all competent adults. Robert and Donald Patton could have sought shelter at any time they deemed it appropriate to do so. n6

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n6 The Dykema court continued its reasoning by assuming that, “even if [Dykema] had succeeded in establishing that a special relationship existed . . . we are unable to find precedent for imposing a duty upon an organizer of an outdoor event such as this basketball tournament to warn a spectator of approaching severe weather.” Dykema, 492 N.W.2d at 475. Citing Hames v. State, 808 S.W.2d 41, 45 (Tenn. 1991), the Michigan Court of Appeals alternatively held that, because the “approach of a thunderstorm is readily apparent to reasonably prudent people . . . it would be unreasonable to impose a duty . . . to warn . . . of a condition that the spectator is fully able to observe and react to on his own.” Id.

There is a line of cases, not dependent on analysis of whether a special relationship existed, that rely on the ability of competent adults to perceive the approach of thunderstorms and to appreciate the natural risks of lightning associated with thunderstorms to justify finding no breach of an ordinary duty of care owed to a plaintiff, whether that duty is recognized by common law, undertaken by the conduct of a defendant, or implied from the conduct of a defendant. For example, in Hames, the Supreme Court of Tennessee held that the State’s failure to provide lightning proof shelters and lightning warning devices at a State-owned golf course was not actionable in negligence. Hames, 808 S.W.2d at 45. Like Robert and Donald Patton, the golfer in Hames began to play his sport of choice on an overcast day. On the day that the golfer was struck by lightning, no signs were posted informing patrons what to do in the event of a thunderstorm and no effort was made to clear the golf course by course employees. Hames, 808 S.W.2d at 42. Approximately 25 minutes after the golfer began to play golf, a thunderstorm moved through the area. He was struck and killed by lightning while seeking cover on a small hill underneath some trees.

The plaintiff in Hames argued that the U.S. Golf Association’s Rules and Regulations created a golf course standard of care that required posting of lightning warnings and precautions. Hames, 808 S.W.2d at 43. The plaintiff’s argument in Hames is analogous to Appellants’ argument in the present case, i.e., the National Collegiate Athletic Association guidelines constitute a lightning safety standard of care for outdoor sporting events.

As well as finding no proximate cause, the Tennessee Court found that the “risks and dangers associated with playing golf in a lightning storm are rather obvious to most adults.” Hames, 808 S.W.2d at 45. The Court noted that it would have taken the decedent golfer two minutes to reach the relative safety of the clubhouse, but instead he remained on the golf course. Id. The Court concluded that “it is reasonable to infer that a reasonably prudent adult can recognize the approach of a severe thunderstorm and know that it is time to pack up the clubs and leave before the storm begins to wreak havoc.” Id. Accordingly, even though the State, as owner-operator of the golf course, owed Hames a general duty “to exercise reasonable care under all the attendant circumstances to make the premises safe . . . the defendant’s conduct did not fall below the applicable standard of care.” Hames, 808 S.W.2d at 44-46.

In Caldwell v. Let the Good Times Roll Festival, 717 So. 2d 1263, 1274 (La. Ct. App. 1998), the Louisiana Court of Appeals held that the City of Shreveport and two co-sponsors of an outdoor festival had neither a general nor specific duty to warn spectators of an approaching severe thunderstorm that caused injuries due to its high winds. The court in Caldwell observed that:

Most animals, especially we who are in the higher order, do not have to be told or warned about the vagaries of the weather, that wind and clouds may produce a rainstorm; that a rainstorm and wind and rain may suddenly escalate to become more severe and dangerous to lives and property. A thundershower may suddenly become a thunderstorm with destructive wind and lightning. A thunderstorm in progress may escalate to produce either or both tornadoes and hail, or even a rare and unexpected micro burst . . . all of which are extremely destructive to persons and property. Caldwell, 717 So. 2d at 1271. See also Seelbinder v. County of Volusia, 821 So. 2d 1095, 1097 (Fla. Dist. Ct. App. 2002) (“We begin by joining the almost universally agreed view that the County, in its capacity as “landowner” or the equivalent, did not have a duty to warn invitees, including beachgoers that there was a risk of being struck by lightning.”) (citations omitted); Grace v. City of Oklahoma City, 1997 OK CIV APP 90, 953 P.2d 69, 71 (Okla. Civ. Ct. App. 1997) (“Lightning is a universally known danger created by the elements. [The golf course owner] has no duty to warn its invitees of the patent danger of lightning or to reconstruct or alter its premises to protect against lightning[,]” and “all persons on the property are expected to assume the burden of protecting themselves from them.”); McAuliffe v. Town of New Windsor, 178 A.D.2d 905, 906, 577 N.Y.S.2d 942 (N.Y. App. Div. 1991) (upon the commencement of rain and thunder, the danger of lightning was admittedly apparent to plaintiff and there is no special duty to warn a specific swimmer against a condition that is readily observable by the reasonable use of one’s senses). The reasoning in the foregoing cases, although not explicated in terms of special relationship analysis as such, is consistent with the result reached in the present case.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [***26]


Chief Judge Bell joins in the judgment only.

Barone, v. St. Joseph’s Villa, 255 A.D.2d 973; 679 N.Y.S.2d 782; 1998 N.Y. App. Div. LEXIS 12242

Barone, v. St. Joseph’s Villa, 255 A.D.2d 973; 679 N.Y.S.2d 782; 1998 N.Y. App. Div. LEXIS 12242

Carol Barone, Appellant, v. St. Joseph’s Villa, Respondent.

(Appeal No. 2.)


Supreme Court of New York, Appellate Division, Fourth Department

255 A.D.2d 973; 679 N.Y.S.2d 782; 1998 N.Y. App. Div. LEXIS 12242

November 13, 1998, Decided

November 13, 1998, Filed

Prior History: [***1]    (Appeal No. 2.) (Appeal from Order of Supreme Court, Monroe County, Bergin, J. – Reargument.)

Judges: Present—Denman, P. J., Hayes, Pigott, Jr., and Fallon, JJ.

Opinion: [*973] [**783] Order unanimously reversed on the law with costs, motion for summary judgment denied and complaint reinstated.

Plaintiff commenced this action to recover for personal injuries that she sustained in a fall while participating in a “challenge” course owned by defendant. Supreme Court granted defendant’s motion for summary judgment dismissing the complaint based on a release signed by plaintiff before she was injured and, upon reargument, adhered to its determination. On appeal, plaintiff contends that the release is unenforceable under General Obligations Law § 5-326 and cannot be construed to bar a claim alleging defendant’s negligence.

General Obligations Law § 5-326 does not apply to this case because defendant is not the owner or operator of a “pool, gymnasium, place of amusement or recreation, or similar establishment” (General Obligations Law § 5-326; see, Lago v Krollage, 78 NY2d 95, 101; Gross v Sweet, 49 NY2d 102, 107; [***2] [*974] Tedesco v Triborough Bridge & Tunnel Auth., 250 AD2d 758; Chieco v Paramarketing, Inc., 228 AD2d 462, 463; Perelman v Snowbird Ski Shop, 215 AD2d 809, 810). Defendant is a not-for-profit entity that operates a residence for needy adolescents and provides mental health and other community services; it maintains the “challenge” course for therapeutic purposes as part of its mission to deliver mental health and other support services. Because the statute does not apply to this case, the release is not void thereunder.

We conclude, however, that the release may not be construed to exculpate defendant for its own negligence absent clear and explicit language to that effect (see, Gross v Sweet, supra, at 107-110; see also, Lago v Krollage, supra, at 99-100; Ciofalo v Tanney Gyms, 10 NY2d 294, 297). The release recites that plaintiff will hold defendant and its agents “harmless from all damages, losses and expenses” “arising out of [plaintiff’s] use of the premises, operations, or facilities of [defendant].” Defendant’s negligence is not mentioned. Thus, the release [***3] may not be construed to bar the claim that plaintiff was injured as a result of defendant’s negligence (see, Bennett v Genesee Marina, 237 AD2d 908, 908-909; Machowski v Gallant, 234 AD2d 933, 934). (Appeal from Order of Supreme Court, Monroe County, Bergin, J.—Reargument.)

Present—Denman, P. J., Hayes, Pigott, Jr., and Fallon, JJ.

Burnett v. Pacific Cycle, Inc. 2007 U.S. Dist. LEXIS 55719

Burnett v. Pacific Cycle, Inc. 2007 U.S. Dist. LEXIS 55719

A.B. By Next Friend, Rachelle Burnett, Plaintiffs, v. Pacific Cycle, Inc. and Wal-Mart Stores East, L.P., Defendants.

No.: 3:06-CV-266


2007 U.S. Dist. LEXIS 55719

July 31, 2007, Filed

CORE TERMS: bicycle, summary judgment, dangerous condition, unreasonably dangerous, front wheel, manufacturer, unreasonably, remember, genuine, seller, campground, products liability, rode, matter of law, defective condition, entitled to judgment, genuine issue, issue of material fact, moving party, burden of proof, proximate cause, manufacture, deposition, non-moving, marketing, favorable, assembly, consumer, hearsay, wheel

COUNSEL: [*1] For A.B., next friend Rachelle Burnett, Plaintiff: Lori L Jessee, LEAD ATTORNEY, Bacon, Jessee & Perkins, Morristown, TN; Sidney W Gilreath, Timothy A Housholder, LEAD ATTORNEYS, Gilreath & Associates, PC, Knoxville, TN.

For Pacific Cycle, Inc., Wal-Mart Stores East, L.P., Defendants: Travis J Graham, LEAD ATTORNEY, Gentry, Locke, Rakes & Moore, LLP, Roanoke, VA.


OPINION BY: Thomas A. Varlan



This civil action is before the Court on the defendants’ Motion for Summary Judgment [Doc. 12]. Plaintiffs, A.B. and next friend Rachelle Burnett (“Plaintiffs”), claim that A.B. was injured in a bicycle accident because of the negligence of the defendants. [Doc. 1] Specifically, Plaintiffs allege that defendant Pacific Cycle, Inc. (“Pacific”) was negligent in its design and manufacture of the bicycle, rendering the bicycle defective and unreasonably dangerous. [Id. at PP 9-13] Plaintiffs further allege that defendant Wal-Mart Stores East, L.P. (“Wal-Mart”) was negligent in the assembly, marketing, distribution, and sale of the bicycle in question. [Id. at PP 14-16] In their motion for summary judgment, the defendants argue that, pursuant to Fed. R. Civ. P. 56, [*2] they are entitled to judgment as a matter of law because Plaintiffs cannot prove that the bicycle was defective or unreasonably dangerous, nor can they prove that A.B.’s injury was caused by the alleged defect. Plaintiffs have not responded to the instant motion and the time for doing so has passed. See L.R. 7.1(a), 7.2.

The Court has carefully reviewed the pending motion, along with the supporting brief in light of the entire record and controlling law. For the reasons set forth herein, the defendants’ motion for summary judgment will be granted.

I. Relevant Facts

In approximately December, 2000, Plaintiffs purchased a Mongoose DXR / MGX mountain bike (the “Bicycle”) from the Jefferson City, Tennessee Wal-Mart. [Doc. 1 at P 5] The Bicycle was fully assembled when purchased. [Doc. 13, Attachment 2 at p. 3] The Bicycle’s front wheel was equipped with a quick release mechanism which allows the front wheel to be detached. [Doc. 1 at P 8] Plaintiffs never manually removed the front wheel from the Bicycle. [Doc. 13, Attachment 2 at p. 3, 5] Other than simple maintenance, including inflating the tires and oiling the chain, no work was ever performed on the Bicycle while in Plaintiffs’ possession. [*3] [Id. at p. 4]

A.B. rode the Bicycle frequently in the following years, varying from once a week to once every few days. [Doc. 13, Attachment 4 at p. 5] A.B. normally only rode the Bicycle in Plaintiffs’ driveway, yard, and at a nearby church. [Id. at p. 4] In June, 2004, Plaintiffs went on a camping trip and brought the Bicycle. [Doc. 13, Attachment 3 at p. 6] The Bicycle was transported to the campground in the back of Plaintiffs’ truck. [Id.] The wheels were not removed while the Bicycle was in transit to the campground. [Id.] Plaintiffs arrived at the campground on the afternoon of June 24, 2004. [Id.] A.B. did not ride his bicycle on June 24, 2004, but did ride it some on June 25, 2004 with no difficulty. [Id.] On June 26, 2004, A.B. again rode his bicycle around the campground, but this time had an accident and sustained a severe injuries to his face and head. [Id.] A.B. remembers “riding [the Bicycle] back to the campsite, and then . . . looking over and seeing this big family, and then everything went black.” [Doc. 13, Attachment 4 at p. 7] A.B. does not remember how the accident happened. [Id.] The accident was witnessed by an unknown camper [Id. at p. 8], but there is no evidence [*4] of record that the unknown camper has ever been identified. At the time of the accident, A.B. was just riding along on a smooth, gravel road, and was not trying to perform any tricks. [Id. at p. 10] A.B. does not remember whether the front wheel of the Bicycle came off before or after the accident. [Id.]

II. Standard of Review

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 there is no genuine issue of material fact lies upon the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 330 n.2, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (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, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (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 [*5] find in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (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 the 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.

III. Tennessee Product Liability Act

Plaintiffs claim that Pacific was negligent in the design, manufacture, and sale of the Bicycle and caused the Bicycle to be in a defective or unreasonably dangerous condition at the time of the sale in violation of the Tennessee Product Liability Act (“TPLA”). Plaintiffs further allege that Wal-Mart was negligent in the assembly, marketing, [*6] distribution, and sale of the Bicycle and caused the Bicycle to be in a defective or unreasonably dangerous condition at the time of the sale in violation of the TPLA.

In order to recover against a manufacturer or seller under the TPLA, a plaintiff must prove that the product in question was “in a defective condition or unreasonably dangerous at the time it left the control of the manufacturer or seller.” Tenn. Code Ann. § 29-28-105(a). The TPLA defines a “defective” condition as “a condition of a product that renders it unsafe for normal or anticipatable handling and consumption.” Tenn. Code Ann. § 29-28-102(2). The TPLA defines “unreasonably dangerous” as a product

dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics, or that the product because of its dangerous condition would not be put on the market by a reasonably prudent manufacturer or seller, assuming that the manufacturer or seller knew of its dangerous condition.

Tenn. Code Ann. § 29-28-102(8). “These statutory definitions essentially codify the ‘consumer expectation test’ as the basis in Tennessee [*7] for assessing products liability.” Tatum v. Cordis Corp., 758 F. Supp. 457, 461 (M.D. Tenn. 1991).

“Thus, regardless of the theory, the plaintiff must show that something is wrong with a product that makes it defective or unreasonably dangerous.” Bradley v. Danek Medical, Inc., No. 96-3121, 1999 U.S. Dist. LEXIS 6449, at *25 (W.D. Tenn. Mar. 29, 1999) (citations omitted). Additionally, the plaintiff must show that the alleged defect or unreasonably dangerous condition of the product was both the proximate cause and the cause in fact of the plaintiff’s injury. Pride v. BIC Corp., 218 F.3d 566, 580 (6th Cir. 2000). “[A] device failure or malfunction will not, without more, render a manufacturer liable.” Bradley, 1999 U.S. Dist. LEXIS 6449, at *25 (citing Harwell v. American Medical Sys., Inc., 803 F. Supp. 1287, 1298 (M.D. Tenn. 1992)). “Moreover, the fact that plaintiff was injured is not proof of defect.” Id. (citing Fulton v. Pfizer Hosp. Products Group, Inc., 872 S.W.2d 908, 911 (Tenn. Ct. App. 1993).

In the instant case, Plaintiffs have presented no proof in support of their claims, instead relying solely on their complaint. The plaintiffs’ complaint, even if accepted as true for [*8] purposes of summary judgment, consists of allegations which are not acceptable proof under Rule 56. Mere notice pleading is not sufficient to defeat a well-pled summary judgment motion. See Garth v. University of Kentucky Medical Center, No. 92-5177, 1992 U.S. App. LEXIS 14677, at *3-4 (6th Cir. June 16, 1992) (“To survive a motion for summary judgment, [the plaintiff] was required to do more than rest on her pleadings; she was required to demonstrate that a genuine issue for trial existed.”); Teamsters Local Union No. 486 v. Andersen Sand and Gravel Co., No. 82-1124, 711 F.2d 1059, 1983 U.S. App. LEXIS 13044, at *6 (6th Cir. May 11, 1983) (“Where the district court has afforded a party opposing summary judgment under Rule 56 an opportunity to set forth specific facts showing there is a genuinely disputed factual issue for trial and that opportunity has been ignored, summary judgment is appropriate if the movant has carried his burden of proof.”). After reviewing the record in the light most favorable to Plaintiffs, the Court finds that Plaintiffs have failed to carry their burden and that the defendants’ motion for summary judgment should be granted.

Plaintiffs have not established that the alleged [*9] defect or unreasonably dangerous condition of the Bicycle was the proximate cause or the cause in fact of the accident. A.B. admits that he can not remember whether the Bicycle’s front wheel came off before the accident, which would effectively have caused the accident, or after the accident. [Doc. 13, Attachment 4 at p. 10] Nor is there any other evidence of record as to the cause of the accident. The Court notes that Ms. Burnett did indicate during her deposition that A.B. “told me before that he remembered the wheel coming off and it going forward,” but that testimony is inadmissible hearsay and not based upon Ms. Burnett’s own personal knowledge. Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 927 (6th Cir. 1999) (“hearsay evidence may not be considered on summary judgment”).

In contrast, the defendants have presented expert testimony proving that the accident was not caused by quick release mechanism on the Bicycle’s front tire and that the Bicycle was not defective nor unreasonably dangerous. [Doc. 13, Attachment 3] Accordingly, the Court finds that Plaintiffs have not carried their burden of proof with respect to identifying a defect or dangerous condition [*10] of the Bicycle and showing that the defect or dangerous condition was the proximate cause and the cause in fact of the plaintiff’s injury, and thus defendants’ motion for summary judgment will be granted.

IV. Conclusion

For the reasons set forth herein, the defendants’ motion for summary judgment [Doc. 12] will be GRANTED and Plaintiffs’ claims will be DISMISSED with prejudice.


s/ Thomas A. Varlan


Clark, v. Lumbermans Mutual Insurance Company, 465 So. 2d 552; 1985 Fla. App. LEXIS 12832; 10 Fla. L. Weekly 596

Clark, v. Lumbermans Mutual Insurance Company, 465 So. 2d 552; 1985 Fla. App. LEXIS 12832; 10 Fla. L. Weekly 596

John Clark, Appellant, v. Lumbermans Mutual Insurance Company and Orange Park Assembly of God, Appellees

No. AU-168

Court of Appeal of Florida, First District

465 So. 2d 552; 1985 Fla. App. LEXIS 12832; 10 Fla. L. Weekly 596

March 7, 1985

COUNSEL: Adam H. Lawrence of Lawrence & Daniels, Miami; and Brent M. Turbow, Jacksonville, for Appellant.

Charles Cook Howell, III of Howell, Liles, Braddock & Milton, Jacksonville, for Appellee.

JUDGES: Smith, L., J. Mills and Nimmons, JJ., concur.



[*553] John Clark, plaintiff below, appeals a final summary judgment in favor of the appellees in this negligence action. After an examination of the whole record, we conclude that no interpretation of the undisputed material facts would support a finding of liability for negligence on the part of the appellee Orange Park Assembly of God (hereinafter “church”). We affirm.

The following facts, taken from depositions filed in this cause, are germane to this appeal. Appellant suffered a broken neck and was rendered a quadriplegic during a diving accident on the St. Mary’s River, located in Nassau County, Florida. The accident occurred during a canoe trip and picnic sponsored, planned and conducted by the appellee church. The church had hired Mr. Gary Hines to be its “minister of youth.” Hines, [**2] a paid, full-time employee of the church, was to direct and coordinate the activities of the church’s youthful members. The trip in question took place June 13, 1981. Its logistics were planned and coordinated by Hines. Approximately 40 to 50 people, including appellant, ultimately participated in the trip. Appellant, a high school graduate, was twenty-one years of age at the time of his injury. He was, in his own words, in excellent health, a good swimmer who was familiar with various water sports.

On the day of appellant’s accident, trip members were transported by church bus and van to a canoe rental establishment located on the St. Mary’s River called the Canoe Outpost. Hines did not attempt extensive instructions to trip members regarding canoe operation or the physical characteristics of the river they were about to traverse. Trip members were instructed by Hines that suitable beaches for swimming existed on the river; however, Hines acknowledged that he had not made inquiries prior to the trip as to the location or suitability of any of the river’s beaches.

During the trip, appellant and a canoeing companion, Lee Brannen, sighted what they thought was a suitable place [**3] for swimming, and beached their canoes. Brannen testified that he ran out into the water approximately three steps and then executed a shallow, racing-type dive into the water, which was approximately chest deep on Brannen, who was six feet one inch tall. Brannen testified he felt it would be “crazy” to attempt a “deep dive,” as he had not yet ascertained the exact depth of the water. Appellant then attempted to execute a similar dive, following what both he and Brannen testified was essentially the same path Brannen had taken in making his dive. Both testified that appellant’s dive differed from Brannen’s. Brannen testified that appellant had not run as far into the water as Brannen had, and that appellant jumped somewhat higher prior to the dive in a manner Brannen characterized as a “piking” of appellant’s body, with the result that appellant’s head and arms preceded the rest of his body into the water. Unfortunately, the result of appellant’s attempted dive was a broken neck and consequent paralysis. The record is unclear as to what, exactly, caused appellant’s injuries, since appellant was unable to state categorically that he hit his head on the river bottom as a result [**4] of his dive. However, all deponents testified that the river bottom area where appellant dove was clear of obstructions.

Appellant instituted the pending action alleging, among other things, that the appellee church had violated its duty to warn of the shallowness of the water in the beach area, where appellant had attempted his dive, failed to determine in advance the safe and unsafe areas to swim along the [*554] St. Mary’s River, and failed to point out proper sites for swimming and diving by the trip members. Appellant also alleged that the church had failed to adequately supervise the canoeing trip.

Appellees moved for summary judgment, asserting that the church breached no legal duty owed the appellant; that appellant had actual knowledge of the allegedly dangerous condition of the beach where his accident occurred; and that appellant’s actions constituted the sole proximate cause of his injury. The trial court granted the motion for summary judgment, finding that the beach area where appellant’s accident occurred contained no latent or unknown dangers; that the appellee church did not breach any legal duty owed the appellant; and that appellant’s actions were the [**5] sole proximate cause of his injury. This appeal followed.

We are governed by certain well known principles applicable in negligence actions. [HN1] Issues of negligence and probable cause will normally be answerable only by a jury, and not by motion for summary judgment, unless the facts adduced “point to but one possible conclusion.” Cassel v. Price, 396 So.2d 258, 260 (Fla. 1st DCA 1981) (citations omitted), rev. den. mem., 407 So.2d 1102 (Fla. 1981). In order to prevail on a motion for summary judgment in a negligence action, the defendant must show either no negligence on his part proximately resulting in injury to the plaintiff, or that the plaintiff’s negligence was the sole proximate cause of his injury. Goode v. Walt Disney World Co., 425 So.2d 1151, 1154 (Fla. 5th DCA 1982), rev. den. mem., 436 So.2d 101 (Fla. 1983). However, as often stated, “the mere occurrence of an accident does not give rise to an inference of negligence, and is not sufficient for a finding of negligence on the part of anyone.” Cassel v. Price, supra, at 264 (citations omitted). Judged by these standards, we find that the trial court correctly granted appellees’ motion for summary judgment.

[**6] Initially, we find without merit appellant’s attempt to affix liability based upon breach of a duty of due care by the church as a “possessor” or “occupier” of land. Appellant contends that the church, by allowing appellant and other members of the trip to utilize the beach where appellant was injured, constructively “possessed” this portion of the beach area, citing Arias v. State Farm Fire and Casualty Company, 426 So.2d 1136 (Fla. 1st DCA 1983). We disagree. In Arias, the plaintiff was injured after a “john boat” in which she was a passenger collided with a partially submerged diving dock located in a lake directly in front of lakefront property owned by a defendant on Lake Hampton, in Bradford County. The defendant in Arias argued that since the land beneath the lake was owned by the state, rather than by the defendant, he was not in a position to exercise control over the land upon which the submerged dock rested, and hence he owed the plaintiff no duty to warn of the hazard. The Arias court rejected this contention, stating:

[HN2] The liability of an occupant of real property for injuries caused by an alleged dangerous defective condition on the premises [**7] depends generally upon his control of the property, regardless of whether he had title thereto, or whether he has a superior right to possession of property which is in the possession and control of another. (citation omitted)

Id. at 1138.

There are no facts in this case which would tend to satisfy the elements of “possession” or “control” which led to the court’s decision in Arias. The facts in Arias were that the nearly submerged dock was located several hundred feet directly in front of the defendant’s lakefront property, and that while it was located in the lake before defendant bought the property, the defendant had modified it by placing a thin shelled cement surface on the dock. The Arias court held that it could not be determined, as a matter of law, that the defendant had “failed to maintain the requisite control over the boat dock.” 426 So.2d at 1138. Here, by contrast, the church had no actual or constructive “presence” at the beach prior to the accident. [*555] Appellant and Brannen were the first two canoeists to reach the beach, and hence “occupy” it. Hines arrived a number of minutes after the appellant and other members of the group, [**8] and made no attempt to exercise “de facto” control over the beach or over activities on the beach.

Moreover, the view that potential liability may exist under facts such as found in Arias is premised upon the existence of a hidden danger of which the land owner or occupier has or should have superior knowledge, as compared to the injured party. Here, no evidence was produced to establish the existence of any hidden dangers at the situs of the accident. It was uncontradicted that the river bottom and the beach contained no rocks or obstructions. Nor can the depth of the water itself have been considered a hidden danger, since both appellant and Brannen testified that they were well aware of its relatively shallow depth. Switzer v. Dye, 177 So. 2d 539 (Fla. 1st DCA 1965). Appellant testified that he was aware of the danger of diving into shallow water, and was aware that the water depth at the beach where he was injured was indeed properly characterized as shallow. Hence, there existed in the case at bar no “hidden danger” so as to trigger the rule in Arias.

We think the same result is required here if the potential liability of the church is considered in relation [**9] to its duty to investigate the river for dangerous conditions. The “harmful condition” of the beach (assuming, without accepting, the correctness of this characterization by appellant) was recognized and hence was obvious to all who testified below. Therefore, no breach of duty occurred, since the “harmful condition” was in fact obvious to appellant, who indisputably possessed sufficient maturity to appreciate the danger, and was not in a dependency relationship with the appellee church. See Bradshaw v. Rawlings, 612 F.2d 135 (3d Cir. 1979), cert. den., 446 U.S. 909, 100 S. Ct. 1836, 64 L. Ed. 2d 261 (1980); cf. Rupp v. Bryant, 417 So.2d 658 (Fla. 1982) (school children between the ages of seventeen and eighteen considered to be under an in loco parentis relationship vis-a-vis school officials).

Appellant also maintains that the church assumed a duty of due care by voluntarily acting as a “tour guide” in organizing and conducting the canoeing trip upon which appellant was injured, citing Kaufman v. A-1 Bus Lines, Inc., 416 So.2d 863 (Fla. 3d DCA 1982) (Kaufman II). There, the plaintiff was injured when she fell off a cat-walk while touring a museum visited by [**10] tour groups sponsored by the defendant. The Third District had previously affirmed the Kaufman trial court’s dismissal of Ms. Kaufman’s initial complaint, but did so without prejudice to her right to file an amended complaint alleging defendant’s actual knowledge of the allegedly dangerous condition that caused her injury. Kaufman v. A-1 Bus Lines, Inc., 363 So. 2d 61 (Fla. 3d DCA 1978) (Kaufman I). Subsequently, Ms. Kaufman filed an amended complaint alleging that the defendant’s actual knowledge of the allegedly dangerous condition causing her injury created a duty to warn on the defendant’s part. The court in Kaufman II found that the defendant could be held liable for negligence while acting as a tour guide, based on the well-known proposition that [HN3] an action undertaken for the benefit of another, even if performed gratuitously, must be performed in accordance with the duty to exercise due care. 416 So. 2d at 864; see also Padgett v. School Board of Escambia County, 395 So.2d 584 (Fla. 1st DCA 1981).

We agree with appellant that a church’s sponsorship and organization of a canoeing trip could give rise to a legal duty to exercise reasonable care in exercising [**11] these responsibilities. Padgett, supra. We observe, however, that Kaufman II is distinguishable from the case at bar due to the Kaufman II defendant’s status as a common carrier. Furthermore, in view of the undisputed evidence concerning the circumstances under which the accident occurred, we do not find it necessary to examine the [*556] extent of the church’s duty in this case, or to categorize the relationship between plaintiff and defendant here, which would otherwise guide our decision in determining whether the church carried its burden of showing the absence of evidence indicating a breach of duty by the church causing injury to appellant, as required to entitle it to summary judgment. 1

1 Cf., Section 768.13, Florida Statutes (1981), the “Good Samaritan Act,” with commercial transactions (Kaufman II, the “tour guide” situation) and dependency relationships (Rupp; schools in an in loco parentis relationship with students).

Even assuming, arguendo, that the church [**12] owed a duty of adequate supervision to appellant, the breach of which would render it liable for ordinary negligence, appellant can be barred from recovery if his own action in diving into the shallow water was the sole proximate cause of his accident. Phillips v. Styers, 388 So. 2d 221 (Fla. 2d DCA 1980), quoting Hoffman v. Jones, 280 So. 2d 431, 438 (Fla. 1973): ” [HN4] A plaintiff is barred from recovering damages for loss or injury caused by the negligence of another only when the plaintiff’s negligence is the sole legal cause of the damage.” We hold that appellant was properly barred from proceeding further with his claim because the evidence below is susceptible to no conclusion other than that he had sufficient intelligence, experience, and knowledge to – and in fact did – both detect and appreciate the physical characteristics of the swimming place in question and the potential danger involved in attempting his shallow water dive. See, Lister v. Campbell, 371 So. 2d 133 (Fla. 1st DCA 1979), Hughes v. Roarin 20’s, Inc., 455 So. 2d 422 (Fla. 2d DCA 1984). 2

2 See, also, Bourn v. Herring, 225 Ga. 67, 166 S.E.2d 89 (1969), appeal dismissed, 400 U.S. 922, 91 S. Ct. 192, 27 L. Ed. 2d 183 (1970) (church and its representatives held not liable for negligent supervision of Sunday school picnic at lake resort during which youth drowned while attempting to swim from platform in deep water back to shore).

[**13] For the foregoing reasons, the judgment below is



Thompson v. Summers, 1997 SD 103; 567 N.W.2d 387; 1997 S.D. LEXIS 103

Thompson v. Summers, 1997 SD 103; 567 N.W.2d 387; 1997 S.D. LEXIS 103

Marvin Thompson, Plaintiff and Appellant, v. Charles Summers, Defendant and Appellee.

# 19940

Supreme Court of South Dakota

1997 SD 103; 567 N.W.2d 387; 1997 S.D. LEXIS 103

June 4, 1997, Argued

August 13, 1997, Opinion Filed




Reversed and remanded.


DAVE L. CLAGGETT of Claggett & Madsen, Spearfish, South Dakota, Attorneys for plaintiff and appellant.

DONALD A. PORTER of Costello, Porter, Hill, Heisterkamp & Bushnell, Rapid City, South Dakota, Attorneys for defendant and appellee.

JUDGES: SABERS, Justice. KONENKAMP, Justice, concurs. MILLER, Chief Justice, and AMUNDSON and GILBERTSON, Justices, concur in result.


OPINION: [**389]

SABERS, Justice.

¶2 On September 4, 1993, Charles Summers was piloting a hot air balloon in an instructional flight over Rapid City, accompanied by flight student Matt McCormick. At about 8:25 a.m., Summers attempted to land the balloon in a public recreational area of Rapid City’s flood plain known as the “greenway.” Marvin Thompson, also a hot air balloon pilot, was at the greenway and recognized the balloon as one he sold to Summers. As Thompson observed Summers’ descent, he became concerned the wind was going to drag the balloon into nearby high voltage power lines. As the balloon skimmed across the ground toward the power lines, Thompson ran over and seized the basket of the balloon, hoping to prevent it from making contact with the power lines. Despite his efforts, Thompson suffered severe electrical burns to over 60% of his body. Summers and McCormick were apparently not injured.

¶3 Thompson sued Summers for his injuries, claiming he was negligent in not employing the rip cord to “rip out” the balloon, a procedure which instantly deflates and stops the balloon. Failure to do so, he claims, was negligence and the cause of his injuries. He argues that, under the “rescue doctrine,” it was foreseeable to Summers that a bystander might intervene when Summers’ negligence put others in peril. In addition, Thompson claims Summers violated several state and federal statutory duties of care pertaining to hot air balloon piloting and landing safety, including proper use of the ripcord.

¶4 Without submitting an answer, Summers made a motion to dismiss the complaint, alleging that Thompson failed to state a claim upon which relief could be granted according to SDCL 15-6-12(b)(5) [hereinafter Rule 12(b)(5) ], which provides:

Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:

(5) Failure to state a claim upon which relief can be granted[.] [1]

The trial court granted the motion and dismissed the complaint with prejudice. Thompson appeals.


¶5 A motion to dismiss under Rule 12(b)(5) tests the law of a plaintiff’s claim, not the facts which support it. Stumes v. Bloomberg, 1996 SD 93, p 6, 551 N.W.2d 590, 592; Schlosser v. Norwest Bank South Dakota, 506 N.W.2d 416, 418 (S.D.1993) (citations omitted). The motion is viewed with disfavor and is rarely granted. Schlosser directs the trial court to consider the complaint’s allegations and any exhibits which are attached. The court accepts the pleader’s description of what happened along with any conclusions reasonably drawn therefrom. The motion may be directed to the whole complaint or only specified counts contained in it…. “In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” [quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957) ]. The question is whether in the light most favorable to the plaintiff, and with doubt resolved in his or her behalf, the complaint states any valid claim of relief. The court must go beyond the allegations for relief and “examine the complaint to determine if the allegations provide for relief on any possible theory.” [quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1357 (1971) ].

506 N.W.2d at 418 (emphasis added). As this appeal presents a question of law, our review is de novo, with no deference given to the trial court’s legal conclusions. City of Colton v. Schwebach, 1997 SD 4, p 8, 557 N.W.2d 769, 771.


¶7 Thompson advances at least three legal theories which may support his cause of action. We need not, and do not, decide whether he will ultimately succeed on any of these theories. See Schlosser, 506 N.W.2d at 418:

[P]leadings should not be dismissed merely because the court entertains doubts as to whether the pleader will prevail in the action as this is a matter of proof, not pleadings. The rules of procedure favor the resolution of cases upon the merits by trial or summary judgment rather than on failed or inartful accusations.

(Quoting Janklow v. Viking Press, 378 N.W.2d 875, 877 (S.D.1985) (citing Federal Practice and Procedure, supra )).

¶8 First, Thompson argues that the common law of negligence, particularly the “rescue doctrine,” is applicable to this case. [2] That doctrine is simply an adjunct of the common law of negligence. It is “nothing more than a negligence doctrine addressing the problem of proximate causation.” Lowery v. Illinois Cent. Gulf R.R. Co., 891 F.2d 1187, 1194 (5th Cir.1990); accord Stuart M. Speiser et al., The American Law of Torts § 9:23, at 1147 (1985) (“In considering the rescue doctrine and its ramifications, it must be always kept in mind that many–if, indeed not most–American courts regard it in terms of proximate causation.”). This theory provides that one who, through negligence, jeopardizes the safety of another, may be held liable for injuries sustained by a “rescuer” who attempts to save the other from injury. See 57A AmJur2d Negligence § 689 (1989):

A rescuer’s right of action against the initial negligent actor rests upon the view that one who imperils another at a place where there may be bystanders, must take into account the chance that some bystander will yield to the impulse to save life or even property from destruction and will attempt a rescue; negligence which creates peril invites rescue and, should the rescuer be hurt in the process, the tortfeasor will be held liable not only to the primary victim, but to the rescuer as well.

(Footnotes & citations omitted). Interestingly, the rescue doctrine can be traced to an 1822 case involving a crowd rushing to assist a descending balloonist. See W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 44, at 307 & n.63 (5th ed.1984) (citing Guille v. Swan, 19 Johns. 381 (N.Y.1822), and noting that since that case, the concept of the rescuer is “nothing abnormal”).

¶9 Summers argues that Thompson cannot raise this theory in this appeal because he did not present it to the trial court. We disagree for two reasons: First, Thompson’s complaint and his brief in opposition to the motion to dismiss adequately set forth his reliance on the rescue doctrine. [3] In his complaint, he stated:

Plaintiff perceived the situation to be an imminent threat to the general public on land and further perceived Defendant and Matt McCormick to be in imminent danger of severe physical harm or death. Plaintiff, in an attempt to prevent the same, went to the location of the balloon and grabbed on to it to help prevent it from drifting into the power lines.

(Emphasis added). In his brief, he reiterates the foregoing portion of his complaint, and adds: “Thompson responded to the emergency. In attempting to prevent an accident from happening, he grabbed the balloon to help prevent it from hitting the power lines.”

¶10 In opposing the motion to dismiss, Thompson briefed the case of Olson v. Waitman, 88 S.D. 443, 221 N.W.2d 23 (S.D.1974), which is not precisely on point, but somewhat analogous to the rescue doctrine, and certainly a common law negligence case. That case held that the jury was properly instructed that a plaintiff may have been contributory negligent when she was pinned under a car after she got behind it to push it from a ditch. However, it was error to so instruct the jury on the plaintiff’s second claim of negligence (she was severely burned after the defendant attempted to drive the car off of her). This court held that the plaintiff had two separate claims of negligence against the defendant and stated:

Regardless of how negligent the plaintiff may have been in getting into this predicament, she did not thereby give the defendant license to thereafter injure her with impunity. Id. at 446, 221 N.W.2d at 25 (remanding for new trial with proper instructions).

¶11 Clearly, Thompson adequately outlined his claim even if he did not include the term “rescue doctrine”. See, e.g., Thomas W. Garland, Inc. v. City of St. Louis, 596 F.2d 784, 787 (8th Cir.), cert. denied, 444 U.S. 899, 100 SCt 208, 62 L.Ed.2d 135 (1979) (stating that a complaint should not be dismissed because it does not state with precision all elements that give rise to a legal basis for recovery); accord Jackson Sawmill Co., Inc., v. United States, 580 F.2d 302, 306 (8th Cir.1978), cert. denied, 439 U.S. 1070, 99 S.Ct. 839, 59 L.Ed.2d 35 (1979).

¶12 The second reason we disagree with Summers’ argument that Thompson cannot raise a legal theory for the first time on appeal concerns the nature of a Rule 12(b)(5) motion. It is settled law that the trial court is under a duty to determine if the plaintiff’s allegations provide for relief on any possible theory, regardless of whether the plaintiff considered the theory. Schlosser, 506 N.W.2d at 418; Eide v. E.I. Du Pont De Nemours & Co., 1996 SD 11, p 7, 542 N.W.2d 769, 771; Federal Practice and Procedure § 1357; Seeley v. Brotherhood of Painters, 308 F.2d 52, 58 (5thCir.1962) (“[T]he theory of the plaintiff in stating his claim is not so important and the complaint should not be dismissed on motion unless, upon any theory, it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts that could be proved in support of his claim.”); cf. Doss v. South Cent. Bell Tel. Co., 834 F.2d 421, 424 (5th Cir.1987) (“[T]he fact that a plaintiff pleads an improper legal theory does not preclude recovery under the proper theory.”); Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d 707, 714 (8th Cir.1979) (“The ‘theory of the pleadings’ doctrine, under which a plaintiff must succeed on those theories that are pleaded or not at all, has been effectively abolished under the federal rules.”).

¶13 Summers argues the motion to dismiss was properly granted because Thompson cannot establish a duty owed by Summers to Thompson. Summers claims that he would have had to request Thompson’s assistance to establish a duty under these circumstances. At the very least, he argues, Summers must have been aware of Thompson’s presence. [4] At oral argument, counsel for Summers went so far as to state there must be a “relationship” between the plaintiff and the defendant before a duty can be established. On the contrary, it is foreseeability of injury to another, not a relationship with another, which is a prerequisite to establishing a duty necessary to sustain a negligence cause of action. See SDCL 20-9-1, wherein the Legislature codified the common law of negligence: “Every person is responsible for injury to the person, property, or rights of another caused by his willful acts or caused by his want of ordinary care or skill, subject in the latter cases to the defense of contributory negligence.” See also Muhlenkort v. Union County Land Trust, 530 N.W.2d 658, 662 (S.D.1995), where this court stated, “To establish a duty on the part of the defendant, it must be foreseeable that a party would be injured by the defendant’s failure to discharge that duty.”

¶14 Additionally, Summers misapprehends the principles of the rescue doctrine. The basic theory of this doctrine is that the defendant’s negligence in placing another in a position of imminent peril is not only a wrong to that person, but also to the rescuing plaintiff. Wharf v. Burlington N. R.R. Co., 60 F.3d 631, 635 (9th Cir.1995); Dinsmoore v. Board of Trustees of Memorial Hosp., 936 F.2d 505, 507 (10thCir.1991); Lowery, 891 F.2d at 1194; Bonney v. Canadian Nat’l Ry. Co., 800 F.2d 274, 276 (1st Cir.1986); Barger v. Charles Mach. Works, Inc., 658 F.2d 582, 587 (8th Cir.1981); Barnes v. Geiger, 15 Mass.App.Ct. 365, 446 N.E.2d 78, 81-82 (1983) (collecting cases); Metzger v. Schermesser, 687 S.W.2d 671, 672 (Mo.Ct.App.1985); see generally The American Law of Torts, supra § 9:23; Prosser & Keeton, supra § 44, at 307-09 (collecting cases from nearly every state). The rescuer may also recover from the imperiled party if that party’s negligence caused the peril. Wharf, 60 F.3d at 635. As indicated above, “negligence which creates peril invites rescue and, should the rescuer be hurt in the process, the tortfeasor will be held liable not only to the primary victim, but to the rescuer as well.” 57A AmJur2d Negligence § 689 (1989). Judge Cardozo’s statement regarding the rescue doctrine is often quoted in these cases:

Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperiled victim; it is a wrong also to his rescuer. Wagner v. International Ry. Co., 232 N.Y. 176, 133 N.E. 437, 437 (1921).

¶15 This theory of “duty” comports with the well-established view of this court. See, e.g., Mark, Inc. v. Maguire Ins. Agency, Inc., 518 N.W.2d 227, 229-30 (S.D.1994) (“Whether a duty exists depends on the foreseeability of injury.”); accord Muhlenkort, 530 N.W.2d at 662; see also Mid-Western Elec., Inc. v. DeWild Grant Reckert & Assocs. Co., 500 N.W.2d 250, 254 (S.D.1993) (“We instruct trial courts to use the legal concept of foreseeability to determine whether a duty exists.”).

¶16 Under Thompson’s second theory, he claims that Summers violated a standard of care as provided in SDCL chapter 50-13, “Air Space and Operation of Aircraft.” “Aircraft” includes balloons. SDCL 50-13-1. SDCL 50-13-4 provides:

Flight in aircraft over the lands and waters of this state is lawful, unless … so conducted as to be imminently dangerous to persons or property lawfully on the land or water beneath.

See also SDCL 50-13-6, which provides, in relevant part:

The owner and the pilot, or either of them, of every aircraft which is operated over lands or waters of this state shall be liable for injuries or damage to persons or property on the land or water beneath, caused by the ascent, descent, or flight of the aircraft, or the dropping or falling of any object therefrom in accordance with the rules of law applicable to torts in this state.

Additionally, SDCL 50-13-16 provides:

It is a Class 1 misdemeanor to operate an aircraft within the airspace over, above and upon the lands and waters of this state, carelessly and heedlessly in intentional disregard of the rights or safety of others, or without due caution and circumspection in a manner so as to endanger or be likely to endanger any person or property.

All of these statutes were presented to the trial court. This court has consistently held that “an unexcused violation of a statute enacted to promote safety constitutes negligence per se.” Bell v. East River Elec. Power Coop., Inc., 535 N.W.2d 750, 755 (S.D.1995) (citing Engel v. Stock, 88 S.D. 579, 225 N.W.2d 872, 873 (1975); Bothern v. Peterson, 83 S.D. 84, 155 N.W.2d 308 (1967); Blakey v. Boos, 83 S.D. 1, 153 N.W.2d 305 (1967)).

¶17 Third, Thompson argues that Summers violated certain federal regulations [5] relating to hot air balloon piloting and landing safety, including proper use of the ripcord in emergency operations. See, e.g., 14 C.F.R. § 61.125(e)(5), which requires applicants for a commercial certificate for piloting balloons to have knowledge in

Operating principles and procedures for free balloons, including emergency procedures such as crowd control and protection, high wind and water landings, and operations in proximity to buildings and power lines.

Additionally, id. § 61.127(f) sets minimum proficiency requirements for balloon pilots and requires competence in, among other procedures, landing and emergency operations, including the use of the ripcord. See also id. § 91.13 (“No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.”). These regulations were presented to the trial court.

¶18 Whether Summers violated one or more of these statutes and regulations, and if so, whether the violation was the proximate cause of Thompson’s injuries constitutes a question for the factfinder. Violation of the statute “alone is not sufficient to render them liable to the plaintiff. Before they may be held to respond in damages it must further appear that their violation of the duty placed on them by this rule was the proximate cause of plaintiff’s injury. The burden of establishing this is on the plaintiff.” Blakey, 83 S.D. at 8, 153 N.W.2d at 309 (citation omitted); accord Musch v. H-D Coop., Inc., 487 N.W.2d 623, 625-26 (S.D.1992):

With regard to the proximate cause issue, this court has recognized that the mere violation of a statute is insufficient to support an action for damages. Rather, a plaintiff must show that the violation of a statutory duty was the proximate cause of his injury to support a recovery in negligence. Serles v. Braun, 79 S.D. 456, 113 N.W.2d 216 (1962); Zeller v. Pikovsky, 66 S.D. 71, 278 N.W. 174 (1938). In Leslie v. City of Bonesteel, 303 N.W.2d 117, 119 (S.D.1981), we stated: “For proximate cause to exist, ‘the harm suffered must be found to be a foreseeable consequence of the act complained of…. The negligent act must be a substantial factor in bringing about the harm.’ Williams v. United States, 450 F.Supp. 1040, 1046 (D.S.D.1978).”

(Emphasis & alterations omitted). Questions of proximate cause are for the jury in “all but the rarest of cases.” Bauman v. Auch, 539 N.W.2d 320, 325 (S.D.1995); Nelson v. Nelson Cattle Co., 513 N.W.2d 900, 903 (S.D.1994); Holmes v. Wegman Oil Co., 492 N.W.2d 107, 114 (S.D.1992).


¶19 “Negligence is the breach of a legal duty imposed by statute or common law.” Stevens v. Wood Sawmill, Inc., 426 N.W.2d 13, 14 (S.D.1988) (citing Walz v. City of Hudson, 327 N.W.2d 120, 122 (S.D.1982)). Thompson clearly outlined a claim under a common-law negligence theory. See id. (“The three necessary elements of actionable negligence are: (1) A duty on the part of the defendant; (2) a failure to perform that duty; and (3) an injury to the plaintiff resulting from such a failure.”). The rescue doctrine is part of the common law of negligence. Therefore, under the law governing a motion to dismiss under Rule 12(b)(5), it was improper to dismiss Thompson’s lawsuit even if the doctrine was not yet addressed in South Dakota. [6]

¶20 Additionally, Thompson set out South Dakota statutes and federal regulations which establish the standard of care for a hot air balloon pilot. The question is “whether in the light most favorable to the plaintiff, and with doubt resolved in his or her behalf, the complaint states any valid claim of relief.” Schlosser, 506 N.W.2d at 418 (emphasis added). Thompson asserts at least three theories which may support his cause of action. Therefore, the trial court erred in holding as a matter of law that Thompson did not allege a duty owed by Summers. Whether he can ultimately succeed presents questions not capable of resolution by a motion to dismiss. We reverse and remand for trial.

¶21 KONENKAMP, J., concurs.

¶22 MILLER, C.J., and AMUNDSON and GILBERTSON, JJ., concur in result.

MILLER, Chief Justice (concurring in result).

¶23 I agree with Justice Sabers’ ultimate result and his discussion noting that Thompson’s complaint states various theories which may support the cause of action (common-law negligence, state statutes and federal regulations). I must merely concur in result, however, because I disagree with and disassociate myself from the discussion and analysis of the rescue doctrine, specifically pp 8-16 supra.

¶24 Analysis of the propriety and applicability of the rescue doctrine at this juncture in these proceedings is premature at best. The doctrine was not argued or advanced by Thompson as a theory to support his cause of action below. It is well settled that we will not review issues which have not been presented to the trial court. Boever v. Board of Accountancy, 526 N.W.2d 747, 750 (S.D.1995); Fullmer v. State Farm Ins. Co., 514 N.W.2d 861, 866 (S.D.1994) (citations omitted). Matters not determined by the trial court are not appropriate for appellate review. See Schull Construction Co. v. Koenig, 80 S.D. 224, 229, 121 N.W.2d 559, 561 (1963). The parties agree and the trial court’s memorandum indicates that the rescue doctrine was not considered in the trial court’s grant of the motion to dismiss. [7] Accordingly, we need not and should not examine the doctrine at this time. [8]

¶25 Any contention that the rescue doctrine was presented to the trial court via the language of the complaint is not persuasive reasoning for reviewing the rescue doctrine as a possible theory of recovery, especially when Thompson specifically concedes he failed to consider the doctrine or present it for the trial court’s consideration. While pleadings need not be so artfully drafted as to specifically list each and every possible claim, the complaint must set forth the facts alleged and contain the essential elements of the cause of action pursued in order to be sufficient. Harmon v. Christy Lumber, Inc., 402 N.W.2d 690, 693 (S.D.1987). See also Weller v. Spring Creek Resort, Inc., 477 N.W.2d 839, 841-42 (S.D.1991). Our deferential standard of review allowing complaints to survive a motion to dismiss for failure to state a claim so long as the “complaint states any valid claim for relief …. ‘on any possible theory,’ ” Schlosser v. Norwest Bank South Dakota, 506 N.W.2d 416, 418 (S.D.1993) (citations omitted), does not require the trial court to ferret out and advance a theory on behalf of a party which has not been recognized in this jurisdiction. Such a requirement would put the trial court in the inappropriate position of advocating on behalf of a party and would unduly strain judicial resources in an effort to explore every conceivable theory, whether recognized in this jurisdiction or not.

¶26 Thompson’s complaint states sufficient theories to support his cause of action; therefore, the trial court’s grant of the motion to dismiss was in error and I agree with Justice Sabers that it should be reversed. However, I respectfully assert that the issue of whether the rescue doctrine is a valid theory of common-law negligence in this jurisdiction should be left until another day when the issue has been properly presented for our review.

¶27 I am authorized to state that Justices AMUNDSON and GILBERTSON join in this concurrence in result.



[1] SDCL 15-6-12(b)(5) is identical to Federal Rule of Civil Procedure 12(b)(6).

[2] In response to Chief Justice Miller’s special writing, we are reversing on precisely the three theories which he lists as meriting reversal. The rescue doctrine is not, standing alone, a viable theory. It is part of negligence in the same way that respondeat superior, vicarious liability, imputed negligence, and concurrent negligence are a part of negligence. Whether the rescue doctrine will be adopted in South Dakota is premature at this state of the proceedings and must await proper disposition upon remand.

However, the rescue doctrine was pled, argued, and reached even if the precise term “rescue doctrine” was not employed. The complaint clearly demonstrates that Thompson set forth the facts and essential elements of this cause of action. The sum total of the trial court’s decision is as follows:

Defendant’s Motion to Dismiss for failure to state a claim upon which relief can be granted is hereby granted. In order for a negligence action to stand, there must be a duty on the part of the defendant running to the plaintiff; the existence of such a duty is a question of law for the Court. This Court finds that no such duty has been established by the Plaintiff in the case at bar, and therefore the case is dismissed. Defendant is requested to draft and submit the appropriate Order.

By determining that no duty existed, the trial court rejected all three theories, including the common law of negligence, of which the rescue doctrine is a part.

[3] While Thompson’s complaint did not include the term “rescue doctrine”, it pleads a legally sufficient cause of action for negligence under “notice pleading” theory. See SDCL 15-6-8(a):

A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim or third-party claim, shall contain

(1) a short and plain statement of the claim showing that the pleader is entitled to relief, and

(2) a demand for judgment for the relief to which he deems himself entitled.

Relief in the alternative or of several different types may be demanded.

(Emphasis added); see also Norwest Bank Black Hills v. Rapid City Teachers Fed. Credit Union, 433 N.W.2d 560, 563 (S.D.1988) (“Under SDCL 15-6-8(a) it is not necessary to plead ‘duty’ in negligence cases where the existence of a duty may be logically inferred from the claim stated in one’s complaint.”); accord Korstad-Tebben, Inc. v. Pope Architects, Inc., 459 N.W.2d 565, 568 (S.D.1990). Thompson claimed that Summers breached a duty to him by failing to rip out the balloon. It did not require the trial court to “explore every conceivable theory” (infra p 25 (Miller, C.J., concurring in result)) to ascertain whether a duty was indeed owed. Duty is based upon foreseeability of injury to another. Analysis of this case depends upon whether injury to Thompson was foreseeable to Summers, and the rescue doctrine simply facilitates the analysis.

[4] Although not material on a motion to dismiss, Summers claims he did not know until afterward that Thompson tried to help him land safely. As noted, the court accepts the pleader’s description of events. Schlosser, 506 N.W.2d at 418.

[5] “The reasons which persuaded us to hold that the violation of a safety statute or ordinance is negligence as a matter of law apply with equal validity to safety rules and regulations[.]” Blakey, 83 S.D. at 7, 153 N.W.2d at 308.

[6] While this is the first time issues involving the rescue doctrine have been presented to this court, the public policy inherent in the doctrine is already in our statutes. The policy underlying the rescue doctrine is the public’s need for quick and courageous action in emergency situations. Compare SDCL 20-9-4.1, which provides individuals general immunity from liability for their actions in emergency situations:

No peace officer, conservation officer, member of any fire department, police department and their first aid, rescue or emergency squad, or any citizen acting as such as a volunteer, or any other person is liable for any civil damages as a result of their acts of commission or omission arising out of and in the course of their rendering in good faith, any emergency care and services during an emergency which is in their judgment indicated and necessary at the time. Such relief from liability for civil damages shall extend to the operation of any motor vehicle in connection with any such care or services….

(Emphasis added). By adopting this “Good Samaritan” statute, the Legislature adopted the public policy of encouraging persons, and–as the emphasized language indicates–not just professional persons, to act on their instinct when confronted with emergency situations. Of course, persons paid to act in emergencies cannot recover from the tortfeasor under the rescue doctrine. See, e.g., Gray v. Russell, 853 S.W.2d 928, 931 (Mo.1993) (en banc) (explaining the rationale for the “firefighter rule”):

Firefighters and police officers are hired, trained, and compensated to deal with dangerous situations affecting the public as a whole. Because of their exceptional responsibilities, when firefighters and police officers are injured in the performance of their duties the cost of their injuries should also be borne by the public as a whole, through the workers’ compensation laws and the provision of insurance benefits and special disability pensions.

(Citation omitted).

[7] At oral argument, Summers argued and Thompson conceded that the trial court was never presented with the rescue doctrine theory and did not reach the issue.

[8] There are a number of reasons for leaving an analysis of the rescue doctrine for another day. The rescue doctrine presents an issue of first impression in this jurisdiction. The failure to raise the doctrine below foreclosed the opportunity for full briefing and presentation of argument on the issue. The rescue doctrine should not be analyzed without the benefit of all the pertinent authorities and public policy arguments if a complete and informed decision is to be reached.

Additionally, “[p]rinciples of judicial restraint dictate that when an issue effectively disposes of the case, other issues that are presented should not be reached.” Poppen v. Walker, 520 N.W.2d 238, 248 (S.D.1994). The conclusion that the trial court’s motion to dismiss should be reversed on other theories negates the necessity of addressing the rescue doctrine on this appeal.


Winiecki v. Wolf, 147 Mich. App. 742; 383 N.W.2d 119; 1985 Mich. App. LEXIS 3127

Winiecki v. Wolf, 147 Mich. App. 742; 383 N.W.2d 119; 1985 Mich. App. LEXIS 3127

Diane A Winiecki, Plaintiff-Appellant, v. Herbert Wolf and Katherine Wolf, Defendants-Appellees, and Richard George, Defendant

Docket No. 80207

Court of Appeals of Michigan

147 Mich. App. 742; 383 N.W.2d 119; 1985 Mich. App. LEXIS 3127

June 26, 1985, Submitted

August 22, 1985, Decided

COUNSEL: Marshal E. Hyman, Birmingham, for plaintiff.

W. J. Zotter, Coticchio, Zotter & Sullivan, P.C., Detroit, for defendants.

JUDGES: R. M. Maher, P.J., and Bronson and D. F. Walsh, JJ.



[*743] [**120] Plaintiff appeals from an order of the Macomb County Circuit Court granting defendants Wolfs’ motion for summary judgment of dismissal, GCR 1963, 117.2(1).

Defendants Herbert and Katherine Wolf held a family reunion at their home in Tuscola County. Plaintiff is a cousin of Katherine Wolf. Another cousin, defendant Richard George, brought “land skis”, two wooden planks with foot holes made from pieces of inner tube which he manufactured himself, to the reunion. A game was played with the land skis involving two teams which were to race down to a tree in the yard and back. According to defendants, everyone fell down when they played. The third time plaintiff fell, she sustained injuries to her hip and pelvis which may require [*744] long-term medical care. Plaintiff filed this action to recover damages for her injuries.

The trial court granted defendants Wolfs’ motion for summary judgment based solely on the ground that the [***2] recreational use statute, MCL 300.201; MSA 13.1485, precluded plaintiff’s action against the defendant landowners. The issue on appeal is the correctness of the trial court’s application of that statute to this case.

The recreational use statute provides:

[HN1] “No cause of action shall arise for injuries to any person who is on the lands of another without paying to such other person a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use, with or without permission, against the owner, tenant, or lessee of said premises unless the injuries were caused by the gross negligence or wilful and wanton misconduct of the owner, tenant, or lessee.”

Plaintiff, citing various indications of legislative intent, argues that the statute was not intended to protect landowners from liability for injuries occurring in their backyards. Defendants Wolf own a tract of land measuring 7.8 acres, but the land ski game was allegedly played on the lawn behind the garage.

[HN2] The duty of the courts is to interpret statutes as we find them. Melia v Employment Security Comm, 346 Mich 544, 561; 78 [***3] NW2d 273 (1956). A plain and unambiguous statute is to be applied, and not interpreted, since such a statute speaks for itself. Lansing v Lansing Twp, 356 Mich 641, 649; 97 NW2d 804 (1959). The courts may not speculate as to the probable intent of the Legislature beyond the words employed in the act. Id. Ordinary words are to be given their plain and [*745] ordinary meaning. Carter Metropolitan Christian Methodist Episcopal Church v Liquor Control Comm, 107 Mich App 22, 28; 308 NW2d 677 (1981).

This statute, as the trial court has already observed, is clear and unambiguous. Plaintiff was a person on the lands of another, without paying a consideration, for the purpose of an outdoor recreational use. [HN3] The statute offers nothing on its face excluding from its application the backyard of residential property. If the Legislature did not intend the statute to apply to parcels of land this size, it was within its power to insert words limiting the statute’s application, e.g., to lands in their natural state. As we, however, are constrained to apply the statute as written, we cannot say that the trial court erred in relieving defendants of liability based on the [***4] recreational use statue.

[HN4] The recreational use statute does not protect landowners from liability for gross negligence or for wilful and wanton misconduct. Plaintiff’s complaint, however, does not include allegations sufficient to make out a claim either of gross negligence or of wilful and wanton misconduct. McNeal v Dep’t of Natural Resources, 140 Mich App 625, 633; 364 NW2d 768 (1985); Matthews v Detroit, 141 Mich App 712, 717-718; 367 NW2d 440 (1985). The trial court correctly concluded that plaintiff had failed to state a claim of gross negligence or of wilful and wanton misconduct.


Mcarthur v. Kerzner International Bahamas Limited, 2015 U.S. App. LEXIS 5058

Mcarthur v. Kerzner International Bahamas Limited, 2015 U.S. App. LEXIS 5058

John C. Mcarthur, Sandra S. Mcarthur, his wife, Plaintiffs – Appellants, versus Kerzner International Bahamas Limited, a Bahamian company, Kerzner International Limited, a Bahamian company, Island Hotel Company Limited, a Bahamian company, Paradise Island Limited, a Bahamian company, Defendants – Appellees.

No. 14-13889 Non-Argument Calendar


2015 U.S. App. LEXIS 5058

March 30, 2015, Decided

COUNSEL: For JOHN C. MCARTHUR, SANDRA S. MCARTHUR, Plaintiffs – Appellants: Jeffrey Bradford Maltzman, Rafaela Castells, Steve Holman, Maltzman & Partners, PA, CORAL GABLES, FL; Robert L. Parks, Gabriel A. Garay, The Law Offices of Robert L. Parks, PL, MIAMI, FL.

JUDGES: Before JULIE CARNES, FAY and DUBINA, Circuit Judges.



Appellants John C. McArthur and his wife, Sandra S. McArthur, appeal the district court’s order dismissing their civil action under forum non conveniens. After reviewing the record and reading the parties’ briefs, we affirm the order dismissing appellants’ complaint.


The McArthurs were part of a group of guests who traveled to the Atlantis Resort in The Bahamas with the University of Kansas (“KU”) for a basketball tournament. Travel agent Cate and Mason Travel Partners (“travel agent”) made KU’s reservations and contracted with Atlantis. The contract includes two provisions in which the travel agent agrees to notify their clients that when they book their reservation through the travel agent, they are subject to certain terms and conditions governing [*2] their stay at Atlantis. A section of the contract indicates that the additional terms and conditions are available on the Atlantis website. [Doc. DE-16-1, Ex. 1 ¶ 5, ¶ 8.] The terms and conditions provide that the guest will be asked to sign a form agreeing to certain terms related to any claims the guest may have as a result of the guest’s stay at the Atlantis Resort. It specifically states that “I agree that any claim I may have against [several named defendants and others], along with their parent, related and affiliated companies at every tier, . . . resulting from any events occurring in The Bahamas shall be governed by and construed in accordance with the laws of the Commonwealth of The Bahamas, and further, irrevocably agree to the Supreme Court of The Bahamas as the exclusive venue for any such proceedings whatsoever.” [Id. ¶ 8.]

Upon their arrival at Atlantis, the McArthurs signed a written registration card entitled “Acknowledgement, Agreement and Release” that includes a choice of law provision and forum selection clause:

I agree that any claims I may have against the Resort Parties resulting from any events occurring in The Bahamas shall be governed by and constructed in [*3] accordance with the laws of the Commonwealth of The Bahamas, and further, I irrevocably agree to the Supreme Court of The Bahamas as the exclusive venue for such proceedings whatsoever. . . .

[Id. ¶ 10 & Exh. 4.]

During his stay at the Atlantis Resort, John McArthur slipped and fell on a sidewalk adjacent to the water park attraction known as the Rapid River. In March 2014, the McArthurs filed an amended complaint in federal district court, alleging negligence in connection with John McArthur’s fall. The amended complaint also alleged that as a result of John McArthur’s injuries, his wife suffered the diminishment of her husband’s companionship and consortium. The amended complaint invoked the district court’s diversity based subject-matter jurisdiction under 28 U.S.C. § 1332. It alleged that the McArthurs were domiciled in Kansas, defendant Kerzner International was a Bahamian company with its principal place of business in Florida, defendant Kerzner Bahamas was a Bahamian company with its principal place of business in Florida, defendant Island Hotel was a Bahamian company and a subsidiary of Kerzner International and Kerzner Bahamas, and defendant Paradise Island was a Bahamian company and a subsidiary [*4] of Kerzner International and Kerzner Bahamas.

The defendants moved to dismiss the amended complaint on the basis of forum non conveniens. The district court granted the motion. The McArthurs then perfected this appeal.1

1 This court issued a jurisdictional question asking the parties to address whether the pleadings sufficiently alleged the citizenship of the parties, in particular, Island Hotel and Paradise Island, to establish the district court’s subject-matter jurisdiction over the case. See Mallory & Evans Contractors & Eng’rs, LLC v. Tuskegee Univ., 663 F.3d 1304, 1304-05 (11th Cir. 2011) (stating that the court must sua sponte raise its concerns regarding subject-matter jurisdiction). The McArthurs concede that the amended complaint failed to allege sufficiently the citizenship of Island Hotel and Paradise Island, but move to amend the amended complaint to add the allegations that both defendants were Bahamian Companies with their principal places of business in the Bahamas. [HN1] The party invoking the court’s jurisdiction bears the burden of establishing federal jurisdiction, and when the pleadings’ allegations of citizenship and jurisdiction are insufficient, a party may amend them in this court. See 28 U.S.C. § 1653; Mallory, 663 F.3d at 1305. The McArthurs’ allegations cure the pleading deficiencies [*5] as to Island Hotel and Paradise Island, and the amended complaint sufficiently alleges that the other defendants are Bahamian companies with their principal places of business in Florida. Because the proposed amendments show that no defendant is a citizen of Kansas, where the McArthurs are domiciled, the district court’s subject-matter jurisdiction is satisfied. Thus, we grant the McArthur’s motion to amend the amended complaint and entertain the instant appeal.


[HN2] This court reviews a district court’s order of dismissal based on forum non conveniens for an abuse of discretion. Aldana v. Del Monte Fresh Produce N.A., 578 F.3d 1283, 1288 (11th Cir. 2009). [HN3] In addition, we review de novo a district court’s construction of a contractual forum selection clause. Global Satellite Commc’n Co. v. Starmill U.K. Ltd., 378 F.3d 1269, 1271 (11th Cir. 2004).

As a preliminary matter, forum selection clauses “are presumptively valid and enforceable unless the plaintiff makes a ‘strong showing’ that enforcement would be unfair or unreasonable under the circumstances.” Pappas v. Kerzner Int’l Bahamas Ltd., 585 F. App’x 962, 965 (11th Cir. 2014) (quoting Krenkel v. Kerzner Int’l Hotels Ltd., 579 F.3d 1279, 1281 (11th Cir. 2009)). The party seeking to avoid the forum selection clause bears the burden of showing exceptional circumstances, predicated on public interest considerations to justify disturbing the forum selection clause. Atl. Marine Const. v. U.S. Dist. Court, U.S. , , 134 S. Ct. 568, 581, 187 L. Ed. 2d 487 (2013).

A forum selection clause will be invalidated where “(1) its formation [*6] was induced by fraud or overreaching; (2) the plaintiff would be deprived of its day in court because of inconvenience or unfairness; (3) the chosen law would deprive the plaintiff of a remedy; or (4) enforcement of the clause would contravene public policy.” Krenkel v. Kerzner Int’l Hotels Ltd., 579 F.3d 1279, 1281 (11th Cir. 2009). To determine whether there was fraud or overreaching in a non-negotiated forum selection clause, the court looks to “whether the clause was reasonably communicated to the consumer. A useful two-part test of ‘reasonable communicativeness’ takes into account the clause’s physical characteristics and whether the plaintiffs had the ability to become meaningfully informed of the clause and to reject its terms.” Id.

The McArthurs contend that the forum selection clause is invalid because the contents of the forum selection clause were not reasonably communicated to them, and the travel agent never informed them about the forum selection clause. However, as the district court found, the McArthurs had constructive notice of the Atlantis Resort’s terms and conditions that the travel agent received. The travel agent, via its contract with the resort, knew that the attendees at the resort were subject to certain additional terms and conditions, [*7] agreed to notify their clients regarding the terms and conditions, and knew where to obtain the specific terms and conditions. Thus, because the McArthurs’ trip involved travel arrangements made by the travel agent, they are charged with constructive notice of the terms and conditions in the contract the travel agent had with the Atlantis Resort.

Moreover, upon their arrival at the resort, the McArthurs signed a written registration form that read, in part, that the guest agrees that any claims he may have against the resort shall be governed by the laws of The Bahamas and that the Supreme Court of The Bahamas is the exclusive venue. [R. DE 16-5.] By signing this form, the McArthurs agreed to the forum selection clause. Hence, we conclude that the forum selection clause is valid.2

2 The McArthurs also argue that the forum selection clause is invalid because it was obtained through fraud. Their argument centers on their claim that the defendants have a policy that allows guests to delete portions of the guest registration card but they do not inform the guests of that right, and therefore, the defendants obtain the signatures on the cards through fraud. This contention is meritless because [*8] they cannot show that the forum selection clause itself was included in the contract due to fraud. See Rucker v. Oasis Legal Fin., L.L.C., 632 F.3d 1231, 1236 (11th Cir. 2011 ) (noting that in order for a forum selection clause to be invalidated on the basis of fraud or overreaching, a plaintiff must specifically allege that the clause was included in the contract because of fraud).

In addition, The Bahamas is an adequate alternative forum, and the public interest factors weigh in favor of transfer. See Atl. Marine, U.S. at , 134 S. Ct. at 582 (discussing forum selection clauses in the 28 U.S.C. § 1404(a) transfer context). First, the McArthurs do not contest that The Bahamas provides an adequate alternative forum, and they do not assert that they could not reinstate their lawsuit in The Bahamas without undue inconvenience or prejudice. Second, the McArthurs fail to meet their burden to show that this case is exceptional and that the forum selection clause should not apply. Their brief is devoid of any claims as to court congestion, the burden of jury duty, or the difficulties in resolving conflict of law problems and applying foreign law. Third, the McArthurs fail to challenge the substantial interests of The Bahamas. In sum, the McArthurs cannot show that enforcement of the forum selection clause “would be unfair [*9] or unreasonable under the circumstances.” Krenkel, 579 F.3d at 1281. Accordingly, we conclude that the district court properly gave effect to the forum selection clause and granted the defendants’ motion to dismiss.3

3 The McArthurs also take issue with the district court’s order denying their motion for leave to amend the complaint to add Brookfield Asset Management, Inc., the new owner of the Atlantis Resort, as a defendant. The district court did not abuse its discretion in denying the motion because the language of the forum selection clause applies equally to any entity that has owned, operated, or marketed the Atlantis Resort. [R. DE 16-1, Ex. 4 & 16-3.] See Garfield v. NDC Health Corp., 466 F.3d 1255, 1270 (11th Cir. 2006) (stating that [HN4] court reviews for abuse of discretion a district court’s decision to grant or deny leave to amend a pleading).


For the foregoing reasons, we affirm the district court’s order granting defendants’ motion to dismiss based on forum non conveniens. We also grant the McArthurs’ motion for leave to amend the amended complaint to cure the deficiency in the pleadings.

AFFIRMED and Motion for leave to amend GRANTED.


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