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Balloon ride in California is not a common carrier, and the release signed by the plaintiff bars the plaintiff’s claims even though she did not read or speak English

An outfitter must follow industry norms when dealing with guests. If the rest of the industry gives guests a safety talk, then you better give guests a safety talk. The problem arises when your guest cannot understand what you are saying.

Grotheer v. Escape Adventures, Inc., et al., 14 Cal. App. 5th 1283; 2017 Cal. App. LEXIS 764

State: California, Court of Appeal of California, Fourth Appellate District, Division Two 

Plaintiff: Erika Grotheer 

Defendant: Escape Adventures, Inc., the pilot and Escape’s agent, Peter Gallagher, and Wilson Creek Vineyards, Inc.,

Plaintiff Claims: negligently or recklessly operated the balloon by (1) failing to properly slow its descent during landing and (2) failing to give the passengers safe landing instructions before the launch. Grotheer alleged the hot air  balloon company is a common carrier, and as such, owed its passengers a heightened duty of care 

Defendant Defenses: Plaintiff could not satisfy the elements of a negligence claim and, even if she could, she had waived the right to assert such a claim by signing Escape’s liability waiver.

Holding: For the Defendant 

Year: 2017 

Summary

Being labeled a common carrier means you owe a higher degree of care to your guests than normal. However, a hot-air balloon ride is not classified as a common carrier because the analysis used under California law, whether the operator has control over the activity, is not met in ballooning. A balloon pilot can only control the ascent and descent of the balloon, all else is left to Mother Nature.

Assumption of risk under California law eliminates a duty that might be owed by the outfitter or in this case the balloon operator. However, not giving a safety talk before the ride is not an inherent risk assumed by the plaintiff. Since the industry, the ballooning industry, gives safety talks, then there is a duty on a balloon operator to give a safety talk to its guests.

However, if no safety talk was given, that still does not mean the outfitter is liable if the injury the plaintiff received was not proximately caused by the failure to give a safety talk.

Facts

The plaintiff is German and does not speak English. Her son signed her up for a balloon flight in the California wine country. The ride crash landed, as most balloon flights do and the plaintiff suffered a broken leg.

The three defendants were the balloon company, the balloon pilot and the winery where the launch and crash occurred. 

The plaintiff sued alleging negligence and because the defendant was a common carrier, the defendant owed the plaintiff a higher duty of care. 

A common carrier in most states is a business operating moving people from one place to another for a fee. The transportation company owes a higher degree of care to its passengers because the passenger has no control over the way the transportation is provided or how the transportation is maintained. 

A good example of this is a commercial airline. You have no idea if the plane is maintained, and you cannot fly the plane. Consequently, your life is totally in the hands of a commercial airline.

The other component of a common carrier is usually the movement is from point A to point B and the main reason is the passenger needs to get from point A to point B. In California the movement is not as important as it is in the other states.  In California, the decided factor is the control factor. California’s definition of a common carrier is much broader and  encompasses many more types of transportation, including transportation for recreation or thrills, not necessarily for getting from one place to the next. 

However, in California the analysis is not who has control but who has what control. 

For additional articles about common carriers see Zip line accused of being a common carrier who makes releases unenforceable. Issue still not decided, however, in all states common carriers cannot use a release as a defense and California case examines the relationship between a common carrier and public policy when applied to a ski area chair lift

The plaintiff based her claim on failing to instruct her in the risks of ballooning and what to do if the balloon were to crash. The balloonists met at the winery and then drove to the launch site. All but the plaintiff rode with the balloon company where the defendants claim they gave a safety speech. The plaintiff rode with her son to the launch site and did not hear the speech. 

More importantly, the plaintiff did not speak or understand English so even if she would have heard the safety talk, whether or not she could have understood it would be a question. 

The trial court dismissed the plaintiff’s claims find the plaintiff could not prove the element of duty; One of the four requirements to prove negligence. The trial court also found the plaintiff had assumed the risk and as such the defendants did not owe her any duty of care. The plaintiff appealed. 

Analysis: making sense of the law based on these facts. 

The court started with the Common Carrier analysis.  

California law imposes a heightened duty of care on operators of transportation who qualify as “common carriers” to be as diligent as possible to protect the safety of their passengers. A carrier of persons for reward must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.

The court defined common carrier by statute as “A common carrier of persons is anyone “who offers to the public to carry persons.” This higher degree of care only applies to carriers who hold themselves out to the public for hire.

A carrier of persons without reward must use ordinary care and diligence for their safe carriage.” (Civ. Code, § 2096.) But “[c]arriers of persons for reward have long been subject to a heightened duty of care.” Such carriers “must use the utmost care and diligence for [passengers’] safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill. 

The level of care is not absolute; common carriers are not insurers of the safety of their passengers. However, they are required to do all that “human care, vigilance, and foresight reasonably can do under the circumstances.” This heightened duty originated in England, prior to the US becoming a country and was based on: 

This duty originated in English common law and is “based on a recognition that the privilege of serving the public as a common carrier necessarily entails great responsibility, requiring common carriers to exercise a high duty of care towards their customers. 

In California, the common carrier status started with stage coaches. Since then the application of the term and the heightened duty has evolved and broadened to include recreational transportation, “scenic airplane and railway tours, ski lifts, and roller coasters “have all been deemed common carriers under California law.”

In California, the degree of care is defined more by the control the passenger has over the transportation. Roller Coasters are common carriers because the passenger has no control over the speed of the coaster or the maintenance on the coaster. At the same time, bumper cars are not common carriers because the passenger is able to steer and control the speed and direction of the bumper car. 

In California, the “inquiry in the common carrier analysis is whether passengers expect the transportation to be safe because the operator is reasonably capable of controlling the risk of injury.”

The court found the hot-air balloon was not a common carrier. Although the passenger has little if any control over the flight of the balloon, neither does the pilot of the balloon. The only control the pilot has is changing the altitude of the balloon. 

…balloon pilots do not maintain direct and precise control over the speed and direction of the balloon. A pilot directly controls only the balloon’s altitude, by monitoring the amount of heat added to the balloon’s envelope. A pilot has no direct control over the balloon’s latitude, which is determined by the wind’s speed and direction. A balloon’s lack of power and steering poses risks of midair collisions and crash landings, making ballooning a risky activity.

The analysis the court applied then turned on how much control the operator of the transportation had, not how little the passenger had. 

But there is a significant difference between the dangers of riding those conveyances and the dangers involved in ballooning. The former can be virtually eliminated through engineering design and operator skill, whereas the latter cannot be mitigated without altering the fundamental nature of a balloon. 

Thus a balloon pilot does not owe his or her customer a heightened duty of care. 

Assumption of the risk was the next defense the court examined. Under California law if the plaintiff assumes the risk, then the defendant does not owe the plaintiff any duty of care. 

Under California law, a balloon operator does not owe his or her passengers a duty of care for the inherent risks of the activity. “The doctrine applies to any activity “done for enjoyment or thrill … [that] involves a challenge containing a potential risk of injury.”

Because the pilot of a hot-air balloon can only control the ascent and descent of the balloon and no other control of the balloon, the passenger must assume the risk of all things ballooning. 

We therefore hold the doctrine applies to crash landings caused by the failure to safely steer a hot air balloon. We further hold Grotheer’s claim of pilot error falls under the primary assumption of risk doctrine because the claim goes to the core of what makes balloon landings inherently risky–the challenge of adjusting the balloon’s vertical movement to compensate for the unexpected changes in horizontal movement. As a result, Escape had no legal duty to protect Grotheer from crash landings caused by its pilot’s failure to safely manage the balloon’s descent. 

Consequently, the pilot and the balloon company owed no duty to the plaintiff. The inherent risks of ballooning include crashing. 

The court then looked at the issue of whether or not the plaintiff received any safety instructions prior to the flight. A guide, outfitter or operator of a balloon which is an inherently dangerous activity still owes a duty to take reasonable steps to minimize the inherent risks. However, those steps must not fundamentality alter the activity. “The primary assumption of risk doctrine is limited to those steps or safety measures that would have a deleterious effect on recreational activities that are, by nature, inherently dangerous.” 

What the primary assumption of risk doctrine does not do, however, is absolve operators of any obligation to protect the safety of their customers. As a general rule, where an operator can take a measure that would increase safety and minimize the risks of the activity  without also altering the nature of the activity, the operator is required to do so. 

The issue then becomes whether or not the balloon operator owes a duty to provide safety instructions. 

Courts consider several factors in determining the existence and scope of a duty of care, including the foreseeability of harm to the plaintiff, the policy of preventing future harm, and the burden to the defendant and consequences to the community of imposing the duty.

Foreseeability is a primary factor in determining whether a duty exists. In this case, the court concluded that providing a safety briefing was custom in the industry. Nor would giving a safety lecture be overly burdensome to the balloon operator or pilot.

The duty we recognize here does not compel anything so lengthy or complex as commercial airlines’ preflight instructions. It requires
only that a commercial balloon operator provide a brief set of safe landing procedures, which Escape’s pilot said is already his custom. Safety instructions are a common practice among operators of recreational activities, and we do not believe requiring balloon operators to set aside a few moments before launch to advise passengers how to position themselves in the basket and what to do in the event of a rough landing will have a negative impact on the ballooning industry. 

So the balloon operator did owe the plaintiff a duty to provide her with a safety instruction. However, that was not the end of the analysis. To prove negligence you must prove a duty, a breach of the duty an injury that was proximately caused by the breach of the duty and damages. In this case, the failure to provide a safety breeching was not the reason why the plaintiff broke her leg, or at least, the plaintiff could not prove the proximate causation. 

Examined another way, for the injury of the plaintiff to be proximately caused by the breach of duty of the defendant, the acts of the defendant must be a substantial factor in that injury. 

To be considered a proximate cause of an injury, the acts of the defendant must have been a “substantial factor” in contributing to the injury. Generally, a defendant’s conduct is a substantial factor if the injury would not have occurred but for the defendant’s conduct. If the injury “‘would have happened anyway, whether the defendant was negligent or not, then his or her negligence was not a cause in fact, and of course cannot be the legal or responsible cause.”

The balloon landing was called a jarring and violent crash by all witnesses. The plaintiff was on the bottom of the pile of people when the basket stopped moving, lying on its side. Any safety talk probably would not have helped the plaintiff prevent her leg from breaking in such a landing. “The accounts of the crash satisfied defendants’ burden of demonstrating the violence of the crash, not any lack of instructions, was the proximate cause of Grotheer’s injury.” 

Consequently, although the balloon operator breached his duty of care to the plaintiff, the injury that occurred to the plaintiff was due to the crash of the balloon which was a violent event rather than the plaintiff being able to deal with a normal landing properly.

So Now What? 

The safety instruction duty is troublesome. How is an outfitter supposed to provide a safety instruction if the customer  cannot comprehend what is being said. In this case, there might have been a way around it if the son could translate for  the plaintiff. However, in many cases a family from a foreign country with little or no English shows up for a recreational  activity with little or no understanding of the activity or the risks. The outfitter has no way of making sure the customer  understands the safety briefing if the outfitter does not speak the customer’s language. 

In California, if you have a customer who does not understand what you are saying, you must probably turn them away.

 What do you think? Leave a comment. 

Copyright 2017 Recreation Law (720) 334 8529

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Grotheer v. Escape Adventures, Inc., et al., 14 Cal. App. 5th 1283; 2017 Cal. App. LEXIS 764

Grotheer v. Escape Adventures, Inc., et al., 14 Cal. App. 5th 1283; 2017 Cal. App. LEXIS 764

Erika Grotheer, Plaintiff and Appellant, v. Escape Adventures, Inc., et al., Defendants and Respondents.

E063449

Court of Appeal of California, Fourth Appellate District, Division Two

14 Cal. App. 5th 1283; 2017 Cal. App. LEXIS 764

August 31, 2017, Opinion Filed

PRIOR HISTORY: [**1] APPEAL from the Superior Court of Riverside County, No. RIC1216581, John W. Vineyard, Judge.

DISPOSITION: Affirmed.

COUNSEL: The Law Office of Robert J. Pecora and Robert J. Pecora for Plaintiff and Appellant.

Agajanian, McFall, Weiss, Tetreault & Crist and Paul L. Tetreault for Defendants and Respondents.

JUDGES: Opinion by Slough, J., with Ramirez, P. J., and Codrington, J., concurring.

OPINION BY: Slough, J.

OPINION

SLOUGH, J.–Plaintiff and appellant Erika Grotheer is a non-English speaking German citizen who took a hot air balloon ride in the Temecula [*1288] wine country and suffered a fractured leg when the basket carrying her and seven or eight others crash-landed into a fence. Grotheer sued three defendants for her injuries: the balloon tour company, Escape Adventures, Inc. (Escape), the pilot and Escape’s agent, Peter Gallagher (Gallagher), and Wilson Creek Vineyards, Inc. (Wilson Creek) (collectively, defendants or respondents). Grotheer alleged Escape and Gallagher negligently or recklessly operated the balloon by (1) failing to properly slow its descent during landing and (2) failing to give the passengers safe landing instructions before the launch. Grotheer alleged the hot air balloon company is a common carrier, and as such, owed [**2] its passengers a heightened duty of care. (Civ. Code, § 2100.) Grotheer also alleged Wilson Creek was vicariously liable for Escape and Gallagher’s conduct because the vineyard shared a special relationship with the balloon company.

Defendants moved for summary judgment, arguing Grotheer could not satisfy the elements of a negligence claim and, even if she could, she had waived the right to assert such a claim by signing Escape’s liability waiver before the flight. The trial court agreed Grotheer could not establish the element of duty, finding Grotheer had assumed the risk of her injury under the primary assumption of risk doctrine and, as a result, Escape and Gallagher owed her no duty of care whatsoever. (Knight v. Jewett (1992) 3 Cal.4th 296 [11 Cal. Rptr. 2d 2, 834 P.2d 696] (Knight).) The trial court entered judgment in favor of defendants, and Grotheer appealed.

Grotheer contends the trial court erred in concluding her claim was barred by primary assumption of risk and reasserts on appeal that Escape is a common carrier. We affirm the judgment, but on a different ground than relied on by the trial court. We hold: (1) a balloon tour company like Escape is not a common carrier subject to a heightened duty of care; (2) the primary assumption of risk doctrine bars [**3] Grotheer’s claim that Gallagher negligently failed to slow the balloon’s descent to avoid a crash landing; and (3) Escape does have a duty to provide safe landing instructions to its passengers, but the undisputed evidence regarding the crash demonstrates that any failure on Escape’s part to provide such instructions was not the cause of Grotheer’s injury.

I

FACTUAL BACKGROUND

A. Preflight

Grotheer’s son, Thorsten, purchased his mother a ticket for a hot air balloon tour with Escape during her visit to California, as a present for her [*1289] 78th birthday. On the morning of the tour, Grotheer and Thorsten met with the Escape crew and the other passengers in the parking lot of the vineyard owned by Wilson Creek, near the field where Escape launched its balloons. Thorsten later testified at his deposition that when they arrived to check in, he tried to explain his mother’s language barrier to the flight crew so Escape could ensure she understood any safety instructions. Thorsten said Gallagher, the pilot, responded by waving him away and saying, “Everything is going to be fine.” Thorsten tried telling two more Escape employees his mother could not understand English, but they appeared to be in [**4] a rush and told him he could not be in the immediate launch vicinity if he had not purchased a ticket. At some point during this check-in activity, Grotheer signed Escape’s liability waiver, which purported to release the company and its agents from claims based on “ordinary negligence.”

Gallagher then drove the passengers to the nearby launchsite. Grotheer drove over separately, with Thorsten. In his declaration, Gallagher said he gave the passengers safety instructions during the drive, as is his custom. He said the instructions covered what to do during landing: “I described to my passengers what to expect in terms of lifting off … and landing … I told them to bend their knees and hold on upon landing, and not to exit the basket until told to do so.”

According to passengers Boyd and Kristi Roberts, however, neither Escape nor Gallagher provided safety instructions. Boyd declared he sat in the front passenger seat next to Gallagher during the drive, which lasted a little over a minute and during which Gallagher described his credentials and years of experience. Boyd remembered receiving “a very general informational talk … about what to expect on [the] flight,” but said [**5] “[t]here was no mention of safety issues or proper techniques for take-off and landing.” Boyd’s wife, Kristi, also rode to the launchsite with Gallagher and said she never heard him give instructions, “other than to hold on as we took off.”

B. The Crash

The tour proceeded without incident until the landing. According to the four accounts in the record, as the balloon descended at a high rate of speed, the basket crashed into a fence then crashed into the ground and bounced and skidded for about 40 yards before finally coming to a stop, on its side. By all accounts, the event was forceful and caused the passengers to be tossed about the basket.

Boyd Roberts described the crash landing as follows: “The balloon was being pushed at a good clip by the wind and we were travelling in a horizontal direction as we were also descending. We were going sideways, [*1290] and … [b]efore we landed, we actually crashed into and took out several sections of [a] 3 rail fence.” After the basket collided with the fence, it hit the ground “with a hard bump and a bounce.” The passengers were “taken for a wild ride as [the basket] was getting dragged downwind [by the balloon].” The basket “became more and more horizontal” as [**6] it was being dragged. “We easily skipped 30 or 40 yards, with a couple of hard impacts along the way.” When the basket finally came to rest, it was “on its side, not its bottom,” with Grotheer’s section on the bottom and Boyd’s on top. He recalled that Grotheer was below him “lying on what was the side of the [basket] which was now the floor.”

Kristi Roberts’s account of the crash landing matches Boyd’s. She said, “we were going pretty fast towards the ground and it looked like we might hit the fence. We did hit the fence, as the [basket] crashed in the top of the three rails, and knocked it right apart.” After that, the basket “hit the ground hard.” Kristi recalled, “I was holding on as tight as I could to the [b]asket, but we were all standing up and it was hard to keep from falling over when we crashed into the ground.”

Gallagher described the landing similarly, though not in as much detail. He said the balloon had been “descending more quickly than anticipated” and the “passenger compartment of the balloon made a hard landing, first on a fence, then on the ground.” He believed the balloon’s descent had been hastened by a “false lift,” which he described as a condition where the wind travels [**7] faster over the top of the balloon than the rest of the balloon. The faster wind creates lift, but when the wind slows the aircraft can quickly lose altitude unless the pilot adds more heat to the balloon’s envelope. In his declaration, Gallagher said he “applied as much heat as possible to the envelope to add buoyancy,” but the additional heat was not sufficient to arrest the descent before the balloon hit the fence.

In her deposition, Grotheer said the balloon basket experienced two forceful impacts, first with the fence, then with the ground. She recalled she had been holding on to the metal rod in the basket when it hit the fence, but despite holding on, she was “still sliding.” She believed her leg broke upon the second impact–when the balloon hit the ground after the collision with the fence. She described her injury as follows: “The people in the balloon, they were all holding. It was hard. It hit the ground hard. And one woman just came like this (indicating).” Grotheer added, “[a]nd the lady is innocent because even her, she was pushed. She was pushed around by the other people in the basket.” Grotheer did not think anyone collided with her after that initial impact with the ground. [**8] She explained, “I just got myself real quick together. [The injury] was just at the beginning.” [*1291]

James Kitchel, Grotheer’s expert who has piloted balloons for over 25 years, concluded the cause of the crash landing was Gallagher’s “failure to maintain safe control over the ‘delta’ temperature[,] anticipate changing pressure differentials[,] and counterbalance the effects on the rate of descent.” He disagreed with Gallagher’s false lift theory, opining instead the balloon had likely simply experienced a wind shear. He believed all Gallagher had to do “to avoid this crash entirely” was add “sufficient heat” to the envelope “before the Balloon was already about to crash.”

Kitchel explained that many people perceive ballooning as a gentle, peaceful experience, but in reality, balloon rides “can be violent, high speed events with tragic results.” What makes a balloon a risky conveyance is the pilot’s inability to directly control the balloon’s movement. A pilot can directly control only the balloon’s altitude, which is done by managing the amount of heat added to the balloon’s envelope. The direction and speed of the wind determines lateral movement. Kitchel stated, “There is no way of steering [**9] a Balloon, such as by having a rudder. … [A] Balloon pilot never truly knows where the Balloon is going to land. He is at the mercy of the wind speed and direction.”

Kitchel also opined that the industry standard of care requires a commercial balloon operator to give “at the very least, one detailed safety presentation.” According to Kitchel, the Federal Aviation Administration’s Balloon Flying Handbook (FAA Handbook) suggests the following safety instructions to prepare passengers for a “firm impact” upon landing: (1) “Stand in the appropriate area of the basket”; (2) “Face the direction of travel”; (3) “Place feet and knees together, with knees bent”; (4) “‘Hold on tight’ in two places”; and (5) “Stay in the basket.” Kitchel did not believe any one particular set of instructions was required and he described the FAA Handbook’s safe landing procedures as a “good minimum standard.”

C. The Complaint

Grotheer’s complaint against defendants alleged she was injured when the balloon “crash land[ed] into a fence located on WILSON CREEK property.” She alleged her injury was a result of negligent piloting and failure to provide safety instructions. She also alleged Escape is a common carrier and [**10] has a duty to ensure the safety of its passengers.

D. The Summary Judgment Motion

Defendants filed a motion for summary judgment, arguing Grotheer’s negligence claim failed as a matter of law because she had assumed the risk of her injury under the primary assumption of risk doctrine. Defendants also [*1292] sought summary judgment on their liability waiver affirmative defense, claiming Grotheer had expressly waived her right to assert a negligence claim. In opposition, Grotheer argued: (1) the primary assumption of risk doctrine does not apply to common carriers like Escape; (2) the doctrine did not relieve Escape and Gallagher of a duty to avoid the crash landing and to provide safety instructions; and (3) the liability waiver was invalid because Escape knew she did not speak English and could not understand it. Grotheer also argued Wilson Creek was vicariously liable for Escape’s breach because the two companies were in a “symbiotic business relationship.”

After a hearing, the court concluded it was undisputed hot air ballooning is a risky activity that can involve crash landings, Grotheer assumed the risk of injury from a crash landing by voluntarily riding in the balloon, and defendants [**11] owed no duty whatsoever to protect her from her injury. The court also concluded Wilson Creek was not vicariously liable for Escape and Gallagher’s conduct. However, the court denied the motion for summary judgment on the liability waiver defense, stating, “there is at least an arguable duress in being separated from her son who was her translator at the time and not understanding the circumstances based on the language. I think that’s a triable issue of fact.” Based on its finding of no duty, the court concluded Grotheer’s negligence claim failed as a matter of law, and it entered judgment in favor of defendants.

II

DISCUSSION

A. Standard of Review

[HN1] A trial court properly grants summary judgment when there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 [107 Cal. Rptr. 2d 841, 24 P.3d 493] (Aguilar).)

[HN2] A defendant who moves for summary judgment bears the initial burden to show the action has no merit–that is, “one or more elements of the [**12] cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to [that] cause of action.” (Code Civ. Proc., § 437c, subds. (a), (p)(2).) Once the defendant meets this initial burden of production, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of [*1293] material fact. (Aguilar, supra, 25 Cal.4th at pp. 850-851.) “From commencement to conclusion, the moving party defendant bears the burden of persuasion that there is no triable issue of material fact and that the defendant is entitled to judgment as a matter of law.” (Laabs v. Southern California Edison Co. (2009) 175 Cal.App.4th 1260, 1268-1269 [97 Cal. Rptr. 3d 241].) [HN3] We review the trial court’s ruling on a summary judgment motion de novo, liberally construing the evidence in favor of the party opposing the motion and resolving all doubts about the evidence in favor of the opponent. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460 [30 Cal. Rptr. 3d 797, 115 P.3d 77].) We consider all of the evidence the parties offered in connection with the motion, except that which the court properly excluded.1 (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476 [110 Cal. Rptr. 2d 370, 28 P.3d 116].)

1 Without supporting argument, Grotheer claims the trial court abused its discretion in refusing to consider her objections to defendants’ evidence, and her responses to defendants’ objections to her evidence, on the ground they were untimely filed on the day of the hearing. We will not consider this claim, however, because Grotheer has not explained why any of her objections or responses had merit, or how she was prejudiced by the court’s failure to consider them. (City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 287 [149 Cal. Rptr. 3d 491] [“we may disregard conclusory arguments that … fail to disclose [appellant’s] reasoning”].)

B. Escape Is Not a Common Carrier and Did Not Owe Grotheer a Heightened Duty To Ensure Her Safe Carriage

Grotheer claims Escape is a common carrier and therefore owed its passengers a heightened duty of care to ensure their safe carriage during the balloon tour. We conclude a hot air balloon operator like Escape is not a common [**13] carrier as a matter of law.

[HN4] (1) In general, every person owes a duty to exercise “reasonable care for the safety of others,” however, California law imposes a heightened duty of care on operators of transportation who qualify as “common carriers” to be as diligent as possible to protect the safety of their passengers. (See Civ. Code, §§ 1714, subd. (a), 2100, 2168.) “A carrier of persons for reward must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.” (Civ. Code, § 2100.) Contrary to Escape’s contention, it is necessary to resolve whether Escape is a common carrier because the heightened duty of care in Civil Code section 2100 precludes the application of the primary assumption of risk doctrine. (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1161 [150 Cal. Rptr. 3d 551, 290 P.3d 1158] (Nalwa).) [*1294]

Whether a hot air balloon operator is a common carrier is an issue of first impression in California.2 It is also a question of law, as the material facts regarding Escape’s operations are not in dispute.3 (Huang v. The Bicycle Casino, Inc. (2016) 4 Cal.App.5th 329, 339 [208 Cal. Rptr. 3d 591] (Huang).)

2 The only published case addressing the issue is Balloons Over the Rainbow, Inc. v. Director of Revenue (Mo. 2014) 427 S.W.3d 815, where a hot air balloon operator argued it was a common carrier under Missouri law for tax purposes. The Supreme Court of Missouri upheld the administrative hearing commissioner’s determination the operator was not a common carrier because it exercised discretion regarding which passengers to fly and therefore did not “carry all people indifferently,” as the statutory definition required. (Id. at pp. 825-827.)

3 Escape claims it stipulated to being a common carrier in its motion for summary judgment. Actually, Escape stated was it was not “controvert[ing] at [that] time the assertion that it is a common carrier.” But even if it had so stipulated, [HN5] we are not bound by agreements that amount to conclusions of law. (E.g., People v. Singh (1932) 121 Cal.App. 107, 111 [8 P.2d 898].)

[HN6] (2) A common carrier of persons is anyone “who offers to the public to carry persons.” (Civ. Code, § 2168.) The Civil Code treats common carriers differently depending on whether they act gratuitously or for reward. (Gomez v. Superior Court (2005) 35 Cal.4th 1125, 1130 [29 Cal. Rptr. 3d 352, 113 P.3d 41] (Gomez).) “A carrier of persons without [**14] reward must use ordinary care and diligence for their safe carriage.” (Civ. Code, § 2096.) But “[c]arriers of persons for reward have long been subject to a heightened duty of care.” (Gomez, at p. 1128.) Such carriers “must use the utmost care and diligence for [passengers’] safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.” (Civ. Code, § 2100; accord, Gomez, at p. 1130.) While common carriers are not insurers of their passengers’ safety, they are required “‘to do all that human care, vigilance, and foresight reasonably can do under the circumstances.'” (Squaw Valley Ski Corp. v. Superior Court (1992) 2 Cal.App.4th 1499, 1507 [3 Cal. Rptr. 2d 897].) This duty originated in English common law and is “based on a recognition that the privilege of serving the public as a common carrier necessarily entails great responsibility, requiring common carriers to exercise a high duty of care towards their customers.” (Ibid.)

Common carrier status emerged in California in the mid-19th century as a narrow concept involving stagecoaches hired purely for transportation. (Gomez, supra, 35 Cal.4th at p. 1131.) Over time, however, the concept expanded to include a wide array of recreational transport like scenic airplane and railway tours, ski lifts, and roller coasters. (Id. at pp. 1131-1136.) This expansion reflects the policy determination [**15] that a passenger’s purpose, be it recreation, thrill-seeking, or simply conveyance from point A to B, should not control whether the operator should bear a higher duty to protect the passenger. (Id. at p. 1136.)

In Gomez, the California Supreme Court concluded roller coasters are common carriers, despite their purely recreational purpose, because they are [*1295] “‘operated in the expectation that thousands of patrons, many of them children, will occupy their seats'” and are “held out to the public to be safe.” (Gomez, supra, 35 Cal.4th at p. 1136.) As with other recreational transportation like ski lifts, airplanes, and trains, “‘the lives and safety of large numbers of human beings'” are entrusted to the roller coaster operator’s “‘diligence and fidelity.'” (Ibid., quoting Treadwell v. Whittier (1889) 80 Cal. 574, 591 [22 P. 266].)

Despite the consistent trend toward broadening the common carrier definition to include recreational vehicles, almost a decade after Gomez the California Supreme Court refused to apply the heightened duty of care to operators of bumper cars, finding them “dissimilar to roller coasters in ways that disqualify their operators as common carriers.” (Nalwa, supra, 55 Cal.4th at p. 1161.) Crucial to the analysis in Nalwa was that bumper car riders “‘exercise independent control over the steering and acceleration,'” [**16] whereas roller coaster riders “‘ha[ve] no control over the elements of thrill of the ride; the amusement park predetermines any ascents, drops, accelerations, decelerations, turns or twists of the ride.'” (Ibid.) This difference in control convinced the court that “[t]he rationale for holding the operator of a roller coaster to the duties of a common carrier for reward–that riders, having delivered themselves into the control of the operator, are owed the highest degree of care for their safety–simply does not apply to bumper car riders’ safety from the risks inherent in bumping.” (Ibid., italics added.)

(3) This precedent teaches that [HN7] the key inquiry in the common carrier analysis is whether passengers expect the transportation to be safe because the operator is reasonably capable of controlling the risk of injury. (Gomez, supra, 35 Cal.4th at p. 1136; Nalwa, supra, 55 Cal.4th at p. 1161.) While a bumper car rider maintains a large degree of control over the car’s speed and direction, a roller coaster rider recognizes the thrills and unpredictability of the ride are manufactured for his amusement by an operator who in reality maintains direct control over the coaster’s speed and direction at all times. (Gomez, at p. 1136.) As our high court explained, the roller coaster rider “expects [**17] to be surprised and perhaps even frightened, but not hurt.” (Ibid.)

It is in this critical regard we find a hot air balloon differs from those recreational vehicles held to a common carrier’s heightened duty of care. Unlike operators of roller coasters, ski lifts, airplanes, and trains, balloon pilots do not maintain direct and precise control over the speed and direction of the balloon. A pilot directly controls only the balloon’s altitude, by monitoring the amount of heat added to the balloon’s envelope. A pilot has no direct control over the balloon’s latitude, which is determined by the wind’s speed and direction. A balloon’s lack of power and steering poses risks of midair collisions and crash landings, making ballooning a risky activity. (See [*1296] Hulsey v. Elsinore Parachute Center (1985) 168 Cal.App.3d 333, 345-346 [214 Cal. Rptr. 194] [hot air ballooning “involve[s] a risk of harm to persons or property” because pilots cannot “direct their paths of travel … [or] land in small, targeted areas”]; Note, Negligence in the [Thin] Air: Understanding the Legal Relationship Between Outfitters and Participants in High Risk Expeditions Through Analysis of the 1996 Mount Everest Tragedy (2008) 40 Conn. L.Rev. 769, 772 [“hot air ballooning” is a “high-risk activity”].) As Kitchel, Grotheer’s expert, [**18] put it, a balloon pilot “is at the mercy of the wind speed and direction.” (See Note, On a Wind and a Prayer (1997) 83 A.B.A. J. 94, 95 [“winds … can transform a wondrous journey into a life-or-death struggle”].)

[HN8] (4) The mere existence of risk is not sufficient to disqualify a vehicle as a common carrier, however. Roller coasters, ski lifts, airplanes, and trains all pose “‘inherent dangers owing to speed or mechanical complexities.'” (Gomez, supra, 35 Cal.4th at p. 1136.) But there is a significant difference between the dangers of riding those conveyances and the dangers involved in ballooning. The former can be virtually eliminated through engineering design and operator skill, whereas the latter cannot be mitigated without altering the fundamental nature of a balloon.

Operators of roller coasters, ski lifts, airplanes, and trains can take steps to make their conveyances safer for passengers without significantly altering the transportation experience. For example, roller coaster operators can invest in state-of-the-art construction materials and control devices or task engineers with designing a ride that provides optimal thrills without sacrificing passenger safety. With a balloon, on the other hand, safety measures and pilot training [**19] go only so far toward mitigating the risk of midair collisions and crash landings. The only way to truly eliminate those risks is by adding power and steering to the balloon, thereby rendering vestigial the very aspect of the aircraft that makes it unique and desirable to passengers.

(5) Because no amount of pilot skill can completely counterbalance a hot air balloon’s limited steerability, ratcheting up the degree of care a tour company must exercise to keep its passengers safe would require significant changes to the aircraft and have a severe negative impact on the ballooning industry. For that reason, we conclude [HN9] Escape is not a common carrier as a matter of law.

C. The Trial Court Incorrectly Determined Escape Owed Grotheer No Duty of Care

Having concluded a hot air balloon company does not owe its passengers a heightened duty of care, we must decide whether Escape owed Grotheer any [*1297] duty of care to protect her from her injury. Grotheer claims Escape and Gallagher had a duty to safely pilot the balloon and to provide safety instructions. Escape contends it owed neither duty under the primary assumption of risk doctrine. We analyze each separately.

1. Balloon piloting and primary assumption [**20] of risk

Grotheer alleges her injury was caused in part by Gallagher’s subpar piloting. Her expert opined the cause of the crash was Gallagher’s failure to control the speed and direction of the balloon’s descent by anticipating changing pressure differentials and maintaining the proper amount of heat in the balloon’s envelope. According to Kitchel, Gallagher could have avoided the crash entirely by “adding sufficient heat … in a timely manner.”

[HN10] (6) “‘Although persons generally owe a duty of due care not to cause an unreasonable risk of harm to others … , some activities … are inherently dangerous,'” such that “‘[i]mposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation.'” (Nalwa, supra, 55 Cal.4th at p. 1154, citation omitted.) Primary assumption of risk is a doctrine of limited duty “developed to avoid such a chilling effect.” (Ibid.) If it applies, the operator is not obligated to protect its customers from the “inherent risks” of the activity. (Id. at p. 1162.)

“‘Primary assumption of risk is merely another way of saying no duty of care is owed as to risks inherent in a given sport or activity. The overriding consideration in the application of this principle is to avoid imposing a duty [**21] which might chill vigorous participation in the sport and thereby alter its fundamental nature.'” (Jimenez v. Roseville City School Dist. (2016) 247 Cal.App.4th 594, 601 [202 Cal. Rptr. 3d 536].) “Although the doctrine is often applied as between sports coparticipants, it defines the duty owed as between persons engaged in any activity involving inherent risks.” (Ibid.) The doctrine applies to any activity “done for enjoyment or thrill … [that] involves a challenge containing a potential risk of injury.” (Record v. Reason (1999) 73 Cal.App.4th 472, 482 [86 Cal. Rptr. 2d 547]; see Beninati v. Black Rock City, LLC (2009) 175 Cal.App.4th 650, 658 [96 Cal. Rptr. 3d 105] [by attending Burning Man festival plaintiff assumed risk of being burned during ritual burning of eponymous effigy].)

The test is whether the activity “‘involv[es] an inherent risk of injury to voluntary participants … where the risk cannot be eliminated without altering the fundamental nature of the activity.'” (Nalwa, supra, 55 Cal.4th at p. 1156.) As we concluded above in the section on common carriers, a balloon’s limited steerability creates risks of midair collisions and crash landings. Moreover, those risks cannot be mitigated except by adding power [*1298] and steering, which would fundamentally alter the free-floating nature of a balloon, turning it into a dirigible.4 “‘[T]he excitement of [ballooning] is that you never know exactly where you’re going to land. [¶] … [¶] … It’s taking something that is unsteerable [**22] and trying to steer it. That’s the challenge.'” (Note, On a Wind and a Prayer, supra, 83 A.B.A. J. at pp. 95, 94; cf. Nalwa, supra, 55 Cal.4th at pp. 1157-1158 [refusing to impose liability on bumper car operators for injuries caused in collisions as doing so would have the effect of “‘decreasing the speed'”–and ultimately the fun–of the ride].)

4 The term “dirigible” literally means “steerable.” It comes from the Latin verb dirigere, meaning “to direct,” and refers to lighter-than-air aircraft capable of being steered, like blimps and zeppelins. (Webster’s 3d New Internat. Dict. (1993) p. 642.)

(7) We therefore hold [HN11] the doctrine applies to crash landings caused by the failure to safely steer a hot air balloon. We further hold Grotheer’s claim of pilot error falls under the primary assumption of risk doctrine because the claim goes to the core of what makes balloon landings inherently risky–the challenge of adjusting the balloon’s vertical movement to compensate for the unexpected changes in horizontal movement. As a result, Escape had no legal duty to protect Grotheer from crash landings caused by its pilot’s failure to safely manage the balloon’s descent.

(8) To avoid this outcome, Grotheer alleged Gallagher’s piloting was not only negligent, but grossly negligent, thereby increasing the inherent risk of crash landing. Grotheer is correct [HN12] the primary assumption of risk does not eliminate an operator’s duty to refrain from engaging in reckless conduct that “unreasonably increase[s] the risks of injury beyond those inherent in the activity.” ( [**23] Nalwa, supra, 55 Cal.4th at p. 1162.) However, she has provided no evidence Gallagher’s piloting fell so outside the range of ordinary it unreasonably increased the inherent risk of crash landing.

Gross negligence is a want of even scant care or an extreme departure from the ordinary standard of conduct. (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 754 [62 Cal. Rptr. 3d 527, 161 P.3d 1095].) In this context, such extreme conduct might be, for example, launching without sufficient fuel, in bad weather, or near electrical towers; using unsafe or broken equipment; or overloading the passenger basket. In the absence of evidence of such conduct, we hold the primary assumption of risk doctrine bars Grotheer’s piloting claim.

Grotheer compares Gallagher’s piloting to the conduct of the skier defendant in Mammoth Mountain Ski Area v. Graham (2006) 135 Cal.App.4th 1367 [38 Cal. Rptr. 3d 422] (Mammoth Mountain), but the analogy is inapt. In Mammoth Mountain, a snowboarding instructor was injured when he collided with a skier who had stopped midslope to throw snowballs at his brother. The [*1299] court reversed summary judgment granted on the basis of primary assumption of risk, concluding there was a factual issue as to whether the skier’s behavior was so “outside the range of ordinary activity involved in the sport of snowboarding” that it increased the inherent risk of colliding with others on the slope. [**24] (Id. at pp. 1373-1374.) Gallagher’s alleged failure to control the balloon’s descent is nothing like the skier’s conduct in Mammoth Mountain. Skiing does not entail throwing snowballs, whereas managing speed and direction in the face of changing wind conditions is the principal challenge in ballooning. As a result, the failure to surmount that challenge falls squarely within the range of ordinary activity for ballooning.

2. Safety instructions and the duty to take reasonable steps to minimize inherent risks

(9) Grotheer also claims her injury was caused, at least in part, by Escape’s failure to give safety instructions. The trial court rejected this theory of liability when it concluded ballooning was an inherently risky activity and, as a result, Escape owed Grotheer no duty at all to protect her from injury. We conclude that ruling was too broad. Under Knight, [HN13] even an operator of an inherently risky activity owes a duty to take reasonable steps to minimize those inherent risks, if doing so would not fundamentally alter the activity. (Knight, supra, 3 Cal.4th at p. 317.) As we explain, instructing passengers on safe landing procedures takes little time and effort, and can minimize the risk of passenger injury in the event of a rough landing. [**25]

The primary assumption of risk doctrine is limited to those steps or safety measures that would have a deleterious effect on recreational activities that are, by nature, inherently dangerous. (Record v. Reason, supra, 73 Cal.App.4th at pp. 484-485; Nalwa, supra, 55 Cal.4th at p. 1162 [“The primary assumption of risk doctrine helps ensure that the threat of litigation and liability does not cause such recreational activities to be abandoned or fundamentally altered in an effort to eliminate or minimize inherent risks of injury”].) For example, an obligation to reduce a bumper car’s speed or the rider’s steering autonomy would impede the most appealing aspect of the ride–the ability to collide with others. (Id. at pp. 1157-1158.) “‘Indeed, who would want to ride a tapper car at an amusement park?'” (Id. at p. 1158.) Similarly, in the context of white water rafting, an obligation to design the rafts to minimize the “risk of striking objects both inside and outside the raft,” would transform the activity into “a trip down the giant slide at Waterworld.” (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 256 [38 Cal. Rptr. 2d 65].) Safety is important, but so is the freedom to engage in recreation and challenge one’s limits. The primary assumption of risk doctrine balances these competing concerns by absolving operators of activities with inherent risks from an obligation to protect [**26] their customers from those risks. [*1300]

(10) What the primary assumption of risk doctrine does not do, however, is absolve operators of any obligation to protect the safety of their customers. (Knight, supra, 3 Cal.4th at pp. 317-318.) As a general rule, where an operator can take a measure that would increase safety and minimize the risks of the activity without also altering the nature of the activity, the operator is required to do so. As the court explained in Knight, “in the sports setting, as elsewhere, the nature of the applicable duty or standard of care frequently varies with the role of the defendant whose conduct is at issue in a given case.” (Knight, at p. 318.) [HN14] When the defendant is the operator of an inherently risky sport or activity (as opposed to a coparticipant), there are “steps the sponsoring business entity reasonably should be obligated to take in order to minimize the risks without altering the nature of the sport [or activity].” (Id. at p. 317.)

Even before Knight, tort law imposed on operators a duty to take reasonable steps to minimize the inherent risks of their activity. (See Knight, supra, 3 Cal.4th at p. 317, citing Quinn v. Recreation Park Assn. (1935) 3 Cal.2d 725, 728-729 [46 P.2d 144]; Shurman v. Fresno Ice Rink (1949) 91 Cal.App.2d 469, 474-477 [205 P.2d 77].) Within our own appellate district we find precedent for imposing on hot air balloon operators and their pilots a duty of care to instruct passengers [**27] on how to position themselves for landing.

In Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127 [40 Cal. Rptr. 2d 249] (Morgan), Division One of our appellate district held a golf course owner had a duty to design its course to minimize the risk of being hit by a golf ball, despite the fact such a risk is inherent to golfing, because doing so was possible “‘without altering the nature of [golf].'” (Id. at p. 134.) Our colleagues explained this duty stemmed from the fact the defendant was the golf course owner. If, on the other hand, the plaintiff had sued the golfer who had hit the errant ball, the action would have been barred by the primary assumption of risk doctrine. (Id. at pp. 133-134.)

Nearly a decade after Morgan, the same court held a race organizer had a duty to minimize the risks of dehydration and hyponatremia5–risks inherent to marathons–by “providing adequate water and electrolyte fluids along the 26-mile course” because “[s]uch steps are reasonable and do not alter the nature of the sport [of marathon running].” (Saffro v. Elite Racing, Inc. (2002) 98 Cal.App.4th 173, 179 [119 Cal. Rptr. 2d 497].) Faced with a similar situation in Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072 [122 Cal. Rptr. 3d 22], this court held an owner of a motocross track had a duty to provide a system for signaling when riders have fallen in order to minimize the risk of collisions. (Id. at p. 1084.) Track owners could satisfy this duty by employing “caution flaggers,” [**28] or some similar device, which [*1301] would be relatively easy to implement and would not alter the nature of motocross. (Ibid.) As these cases demonstrate, the primary assumption of risk doctrine has never relieved an operator of its duty to take reasonable steps to minimize inherent risks without altering the nature of the activity.

5 A condition which occurs as a result of decreased sodium concentration in the blood.

(11) Having determined the primary assumption of risk doctrine does not absolve Escape of a duty to exercise reasonable care in all aspects of its operations, we turn to the existence and scope of the duty at issue here–safety instructions. (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213 [63 Cal. Rptr. 3d 99, 162 P.3d 610] [HN15] [the existence and scope of a duty of care are questions of law for the trial court to determine in the first instance and the appellate court to independently review].) [HN16] Courts consider several factors in determining the existence and scope of a duty of care, including the foreseeability of harm to the plaintiff, the policy of preventing future harm, and the burden to the defendant and consequences to the community of imposing the duty. (See, e.g., Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 675, fn. 5 [25 Cal. Rptr. 2d 137, 863 P.2d 207].)

[HN17] (12) Foreseeability is the primary factor in the duty analysis. (Pedeferri v. Seidner Enterprises (2013) 216 Cal.App.4th 359, 366 [163 Cal. Rptr. 3d 55].) Our task in evaluating foreseeability “‘is not to decide whether a particular plaintiff’s injury was reasonably foreseeable [**29] in light of a particular defendant’s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed.'” (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 772 [122 Cal. Rptr. 3d 313, 248 P.3d 1170].) The existence and scope of a duty of care “is to be made on a more general basis suitable to the formulation of a legal rule” to be applied in a broad category of cases. (Id. at p. 773; see Huang, supra, 4 Cal.App.5th at pp. 342-343.)

In this case, the evidence is undisputed that giving passengers a brief presentation on safe landing procedures (such as the instructions Grotheer’s expert cites from the FAA Handbook) is a customary and standard practice in the ballooning industry. To paraphrase Grotheer’s expert, these safe landing procedures are: (1) stand in the appropriate area of the basket; (2) face toward or away from the direction of travel, but not sideways (to minimize the risk of a side-impact injury to the hips or knees); (3) place the feet and knees together, and bend the knees; (4) hold on tightly to the rope, handles, or other stabilizing device, and (5) stay inside the basket. Gallagher himself agreed safety instructions are crucial. He said he always explains what passengers can [**30] expect during launch and landing. In preparation for landing, he tells them to hold on to the handles, bend their knees, and not to exit the basket until told to do so. [*1302]

As to foreseeability, undisputed evidence in the record tells us that rough landings are a risk of ballooning and instructing passengers on proper landing positioning can reduce, though not eliminate, the likelihood of injury in the event the landing does not go smoothly. Additionally, we see no public policy reason why balloon operators should not be required to give safe landing instructions. (Huang, supra, 4 Cal.App.5th at p. 342.) As Kitchel, an experienced balloon pilot, owner, and operator, explained, “[a] detailed safety briefing takes no more than 5 minutes and is time well spent.” While “[m]any balloon landings are gentle, stand-up landings … the pilot should always prepare passengers for the possibility of a firm impact,” as rough landings can result in severe injuries.

(13) Escape contends the duty to provide safe landing instructions will be overly burdensome to balloon operators, citing the complexity of the preflight instructions operators of passenger-carrying airplanes are required to give under federal regulation. (See 14 C.F.R. § 121.571 (2017).) We find the concern misplaced. [**31] [HN18] The duty we recognize here does not compel anything so lengthy or complex as commercial airlines’ preflight instructions. It requires only that a commercial balloon operator provide a brief set of safe landing procedures, which Escape’s pilot said is already his custom. Safety instructions are a common practice among operators of recreational activities, and we do not believe requiring balloon operators to set aside a few moments before launch to advise passengers how to position themselves in the basket and what to do in the event of a rough landing will have a negative impact on the ballooning industry. (Cf. Nalwa, supra, 55 Cal.4th at p. 1161 [noting bumper car operator “enforce[d] various riding instructions and safety rules” before giving control of the car’s speed and steering to riders]; Ferrari v. Grand Canyon Dories, supra, 32 Cal.App.4th at p. 251 [operator of white water rafting tour gave plaintiff “safety instructions,” such as “where to sit, that it was necessary to hold onto the raft while navigating rapids and where to hold on, and how to react if thrown out of the raft into the water”].) Because the evidence supports Grotheer’s allegation Escape failed to give safety instructions of any kind to any of its passengers, we need not go into precisely what warnings are required, [**32] including whether a commercial balloon operator must ensure passengers with known language barriers understand the safety instructions.

We therefore conclude the court incorrectly applied the primary assumption of risk doctrine to absolve Escape of a duty to provide safe landing procedures. However, this conclusion does not end our analysis. We must also consider whether Grotheer’s negligence claim fails as a matter of law because she has not demonstrated the existence of a triable issue of fact on causation. (Coral Construction, Inc. v. City and County of San Francisco (2010) 50 Cal.4th 315, 336 [113 Cal. Rptr. 3d 279, 235 P.3d 947] [“‘[i]t is axiomatic that [HN19] we review the trial court’s rulings and not its reasoning'” and [*1303] “[t]hus, a reviewing court may affirm a trial court’s decision granting summary judgment for an erroneous reason”].)

D. Any Lack of Safety Instructions Was Not a Substantial Factor in Causing Grotheer’s Injury

[HN20] (14) “The elements of actionable negligence, in addition to a duty to use due care, [are] breach of that duty and a proximate or legal causal connection between the breach and plaintiff’s injuries.” (Onciano v. Golden Palace Restaurant, Inc. (1990) 219 Cal.App.3d 385, 394 [268 Cal. Rptr. 96] (Onciano).) [HN21] (15) To be considered a proximate cause of an injury, the acts of the defendant must have been a “substantial factor” in contributing to the injury. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 969 [67 Cal. Rptr. 2d 16, 941 P.2d 1203].) Generally, a defendant’s conduct is a substantial [**33] factor if the injury would not have occurred but for the defendant’s conduct. (Ibid.) If the injury “‘would have happened anyway, whether the defendant was negligent or not, then his or her negligence was not a cause in fact, and of course cannot be the legal or responsible cause.'” (Toste v. CalPortland Construction (2016) 245 Cal.App.4th 362, 370 [199 Cal. Rptr. 3d 522], quoting 6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 1185, p. 552.) As our high court has explained, “‘a force which plays only an “infinitesimal” or “theoretical” part in bringing about injury, damage, or loss is not a substantial factor.'” (Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 79 [86 Cal. Rptr. 2d 846, 980 P.2d 398].)

[HN22] While proximate cause ordinarily is a question of fact, it may be decided as a question of law if “‘”‘under the undisputed facts, there is no room for a reasonable difference of opinion.'”‘” (Onciano, supra, 219 Cal.App.3d at p. 395.) As noted, once a defendant claiming the plaintiff cannot satisfy an element of his or her claim meets the initial burden of production, the burden shifts to the plaintiff to demonstrate a triable issue of fact. (Aguilar, supra, 25 Cal.4th at pp. 850-851.) When the evidence supports only one reasonable inference as to the cause of the plaintiff’s injury, courts should not engage in “unreasonable speculation that other contradictory evidence exists but was not adduced in the summary judgment proceedings.” (Constance B. v. State of California (1986) 178 Cal.App.3d 200, 211 [223 Cal. Rptr. 645] [dismissal [**34] of negligence claim was proper because no reasonable fact finder could find a causal nexus between defendant store owner’s improper lighting and the assault on plaintiff based on the evidence presented during the summary judgment proceedings].)

As explained in the previous part, the purpose of the safety instructions is to reduce injury in the event of rough landings. Here, however, the undisputed descriptions of the landing establish it was not merely rough, but rather [*1304] was a forceful and violent event–a crash. According to Boyd and Kristi Roberts, whose uncontested descriptions are the most detailed, the basket was descending “pretty fast” when it hit the fence with such force it “knocked it right apart,” taking out several fence sections. The basket then hit the ground “hard” and skidded for about 40 yards, becoming more and more horizontal as it was dragged, before coming to a stop on its side with Grotheer’s section on the bottom. Gallagher, the pilot, said the balloon had been descending more quickly than he had anticipated when the basket made a “hard landing, first on the fence and then on the ground.” Grotheer too described both impacts as “hard.” Both Grotheer and Kristi [**35] said they had been holding on to the handles (Kristi as tightly as she could) but were unable to keep from slipping or falling.

From these descriptions, we gather the crash landing was a jarring and violent experience, a “wild ride” so forceful that several passengers fell–even one who had tried desperately not to fall by gripping the basket handles as tightly as possible. (See Endicott v. Nissan Motor Corp. (1977) 73 Cal.App.3d 917, 926 [141 Cal. Rptr. 95] [“If the violence of a crash is the effective efficient cause of plaintiff’s injuries to the extent that it supersedes other factors … and makes them immaterial, plaintiff cannot recover”].) The accounts of the crash satisfied defendants’ burden of demonstrating the violence of the crash, not any lack of instructions, was the proximate cause of Grotheer’s injury. The burden then shifted to Grotheer to explain how things may have played out differently had everyone been instructed on proper body positioning during landing. She produced no such evidence. Instead, she said at her deposition she believed everyone had in fact been holding on to the basket handles during the descent. While one could speculate that Kristi had been the only passenger holding the handles correctly and the woman who fell into Grotheer [**36] had employed an improper grip (say, using only one hand or not holding “tight,” as the FAA Handbook instructs), Grotheer presented no evidence to support such a theory. As a result, she did not meet her burden of demonstrating an evidentiary dispute about whether the provision of instructions would have produced a different outcome.

(16) We conclude any failure to instruct on Escape’s part was not a proximate cause of Grotheer’s injury, and we affirm the grant of summary judgment on that ground. Given our holding that defendants are not liable for negligence, it is unnecessary to review the trial court’s ruling on Wilson Creek’s vicarious liability or its ruling on defendants’ liability waiver defense.6

6 Defendants asked us to review the ruling on their affirmative defense in the event we reversed the trial court’s grant of summary judgment, citing Code of Civil Procedure section 906, which allows a respondent, without appealing from a judgment, to seek appellate review (at the court’s discretion) of any ruling that “substantially affects the rights of a party,” for “the purpose of determining whether or not the appellant was prejudiced by the error … upon which he relies for reversal.” Because we do not reverse the grant of summary judgment, we need not reach the issue of defendants’ affirmative defense.

[*1305]

III

DISPOSITION

We affirm the judgment. The parties shall bear their costs on appeal.

Ramirez, P. J., and Codrington, J., concurred.


Great analysis of the “Rescue Doctrine” in a ballooning case from South Dakota

The rescue doctrine was created so that the person causing the injury or putting the plaintiff in peril also is responsible for any rescuer of the plaintiff.

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

State: South Dakota, Supreme Court of South Dakota

Plaintiff: Marvin Thompson

Defendant: Charles Summers

Plaintiff Claims: General negligence claims

Defendant Defenses: no duty

Holding: for the Plaintiff

Year: 1997

This is an interesting case that never fully played out so we don’t know the outcome of the case. A balloonist, eventual defendant, was teaching a student to fly and was attempting to land. Another balloon instructor on the ground, who had taught the instructor in the balloon, thought the landing was not going to be good and attempted to help with the landing.

The balloonist on the ground thought the balloon was going to hit high-voltage power lines. As the balloon got lower to the ground, the balloonist on the ground, the plaintiff, ran over and grabbed the balloon in an attempt to stop the balloon. The balloon hit the power lines and the plaintiff, rescuer, suffered burns over 60% of his body. The two people in the balloon were not injured.

The plaintiff sued the defendant for not employing the rip cord, which opens the balloon to release the hot air. The plaintiff argued failing to employ the rip cord was negligence. (The obvious issue here is what duty was owed by the balloonist to the plaintiff on the ground, other than to not land on him.)

This is confusing, in that failing to protect yourself from injury is a negligent act to one who is injured rescuing you? It is difficult to understand in this case the liability owed to an intervener for your failure to act. Stated another way, your liability because the intervener expected you to act in a certain way?

South Dakota only has one appellate court, the South Dakota Supreme Court. The trial court dismissed the plaintiff’s complaint, and the plaintiff appealed to the supreme court of South Dakota.

The trial court dismissed the complaint on the defendant’s motion to dismiss. Meaning this case was dismissed prior to any discovery or even an answer from the defendant. Therefore, when the appellate court reviews the issues, it must do so to look for any allegations by the plaintiff that may support a claim. This analysis is not whether a claim was supported or could be won in court, just whether or not it, there was any possibly that the case could be.

Analysis: making sense of the law based on these facts.

The court started its analysis by looking at the rescue doctrine. The rescue doctrine is an odd, but arguably valid legal argument. If you attempt to assist someone who needs rescued, are injured during that assistance, the person who caused the accident is also responsible for your injuries.

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.

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.

There is an argument that the rescue doctrine was not properly raised at the trial court level and a variation of the rescue doctrine   a dissenting opinion. The dissenting opinion agreed with the outcome of the majority, but felt the analysis of the rescue doctrine was premature. Either way, the court looked at the argument and found it applied to this case.

One argument made by the defendant was that he could not be liable, unless he requested the assistance or at least knew about the assistance.

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. 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.”

The court did not buy this argument. “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

Not only, that unconscious victims or rescuers the victim does not know about would leave rescuers risking their cost of their own injuries.

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.

The court also looked at other theories how the plaintiff’s claim may have merit.

One was the argument that the defendant breached federal regulations created by the Federal Aviation Administration. Breaching a statute creates a negligence per se action. “This court has consistently held that “an unexcused violation of a statute enacted to promote safety constitutes negligence per se.”

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.

However, here again, any breach of an FAA regulation would inure to the passenger, not the rescuer; I would think? However it was held to support the claim of the plaintiff/rescuer here.

However, the court seemed to circle back to that argument when it stated:

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.

The court sent the case back to the trial court for further proceedings and closed with this summary.

Negligence is the breach of a legal duty imposed by statute or common law.” Thompson clearly outlined a claim under a common-law negligence theory. (“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.

So Now What?

The biggest issue which is confusing is the original claim must be based on a negligent act which never occurred to the possible plaintiff, just the defendant. How can the defendant be liable for his own rescue? What negligent act on the part of the defendant created the liability to create the liability for the rescuer?

Where the rescue doctrine comes into play in the outdoor recreation and adventure travel field that creates problems is when other guests attempt to help. Whenever someone is in a jam, everyone wants to help, and you may need everyone’s help. If another guest is injured when helping, and you were the legally the cause of the original accident, you could be liable for the guests who helped also.

Does that mean guests cannot help? No, many times you may need the guests to assist in rescuing someone. Just make sure they know their job, are doing it in a safe way and keep your eyes on them.

Will a release work to stop the claims of the injured guest/rescuer? I have no idea, maybe, but no court that I know of has ever looked at the issue.

What do you think? Leave a comment.

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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

PRIOR HISTORY: [***1]

APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT. PENNINGTON COUNTY, SOUTH DAKOTA. THE HONORABLE THOMAS L. TRIMBLE Judge.

DISPOSITION:

Reversed and remanded.

COUNSEL:

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 BY: SABERS

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.

STANDARD OF REVIEW

¶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.

¶6 WHETHER ANY LEGAL THEORY EXISTS TO SUPPORT THOMPSON’S CLAIM.

¶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).

CONCLUSION

¶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.

———

Notes:

[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.

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