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Words and Phrases Defined in an Articles

The articles next to the term or phrase and state identify an article where the court has defined the term in the legal decision and it is quoted in the article.

This does not cover every decision posted on Recreation-law.com. However, you might find it helpful to understand some terms.

Term or Phrase

State

Article that Defines the Term or Phrase

Adhesion Agreement Colorado Colorado Federal District Court judge references a ski area lift ticket in support of granting the ski area’s motion for summary judgment and dismissing the lawsuit.
Admiralty Law Nevada Admiralty law did not stop a release from barring a claim for negligence for a parasailing injury.
Agency New Jersey The use of the PGA name was not enough to tire the PGA to a golf camp where they had no relationship or control. As such, they were dismissed from the suit because they had no duty to the injured minor.
Amicus Curiae Colorado 10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality.
Ambiguity Minnesota Plaintiff argues under Minnesota law the language on the back of the season pass created an ambiguity which should void the season pass release for a ski area.
Apparent Authority New Jersey The use of the PGA name was not enough to tire the PGA to a golf camp where they had no relationship or control. As such, they were dismissed from the suit because they had no duty to the injured minor.
Pennsylvania Apparent Agency requires actual acts to hold a hotel liable for the injuries allegedly caused by a tour company
Assumption of Risk Assumption of the Risk    http://rec-law.us/wMtiET
Assumption of Risk — Checklist
California Assumption of the Risk to be a bar to a claim the defendant must now owe a duty to the plaintiff that means the plaintiff must be involved in recreation or a sport.
Hawaii The risk of hiking over lava fields is an obvious risk; falling while hiking is also a possibility….so is suing when you do both…but you won’t win
Massachusetts Duty of care for a Massachusetts campground is to warn of dangerous conditions.
New York If you have a manual, you have to follow it, if you have rules you have to follow them, if you have procedures, you have to follow them or you lose in court.

Skier assumes the risk on a run he had never skied before because his prior experience.

Ohio Ohio Appellate decision defines assumption of the risk under Ohio law and looks at whether spectators assume the risk.
Pennsylvania The harder a court works to justify its decision the more suspect the reasoning.
Pennsylvania PA court upholds release in bicycle race.
Pennsylvania Scary and Instructional case on assumption of the risk in a climbing wall case in Pennsylvania
South Carolina Assumption of the risk is used to defeat a claim for injuries on a ropes course.
Express Assumption of risk California BSA (Cub Scout) volunteer was not liable for injuries to cub because cub assumed the risk of his injuries. The BSA & Council were not liable because volunteer was not an agent.
Delaware If you agree to the rules you have to follow the rules
Pennsylvania Neither a release nor the Pennsylvania Equine Liability Act protects a stable for injuries when the stirrup broke.
Implied Assumption of the risk Missouri Missouri decision about ski rental form and a release that does not conform to MO law spell a mess for the ski resort
Pennsylvania Neither a release nor the Pennsylvania Equine Liability Act protects a stable for injuries when the stirrup broke.
Primary Assumption of Risk Delaware If you agree to the rules you have to follow the rules
Minnesota Assumption of Risk used to defend against claim for injury from snow tubing in Minnesota
Ohio In Ohio, Primary Assumption of the Risk is a complete bar to claims for injuries from hiking at night.

BSA (Cub Scout) volunteer not liable for injuries to cub because cub assumed the risk of his injuries. BSA & Council not liable because volunteer was not an agent.

Ohio Appellate decision defines assumption of the risk under Ohio law and looks at whether spectators assume the risk.

New York New York Decision explains the doctrine of Primary Assumption of the Risk for cycling.
South Carolina South Carolina Supreme Court writes a clear decision on Assumption of the Risk for sporting activities.
Secondary
Assumption of Risk
Arkansas Proof of negligence requires more than an accident and injuries. A Spectator at a rodeo needed proof of an improperly maintained gate.
California Most references in case law to assumption of the risk are to this California decision
Ohio Ohio Appellate decision defines assumption of the risk under Ohio law and looks at whether spectators assume the risk.
Business Invitee Pennsylvania Release lacked language specifying the length of time it was valid. Since the court could not determine the time the case was sent to a jury for that determination.
Ohio Poorly written release on a sign in sheet barely passes protecting Ohio defendant swimming area from suit.
Causation Indiana An ugly case balancing the marketing program to make people feel safe, which is then used to prove the incident giving rise to the negligence claim, was foreseeable.
Certiorari Colorado Colorado Supreme Court rules that an inbounds Avalanche is an inherent risk assumed by skiers based upon the Colorado Skier Safety Act.
Common Carrier California 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
Contracts
Meeting of the Minds North Carolina When is a case settled? When all parties (and maybe their attorneys) agree it is settled
Consideration What is a Release?
Concurring Opinion Utah The safety precautions undertaken by the defendant in this mountain bike race were sufficient to beat the plaintiff’s claims of gross negligence in this Utah mountain bike fatality
Contribution Massachusetts Industry standards are proof of gross negligence and keep defendant in lawsuit even with good release
Declaratory Judgment New Hampshire What happens if you fail to follow the requirements of your insurance policy and do not get a release signed? In New Hampshire you have no coverage.
Derivative Claim Sign in sheet language at Michigan health club was not sufficient to create a release.
Duty of Care California 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
New Jersey Is a negligent act to open a car door into a bike lane when a cyclists is in the lane in New Jersey
South Carolina South Carolina Supreme Court writes a clear decision on Assumption of the Risk for sporting activities.
Washington Summer Camp, Zip line injury and confusing legal analysis in Washington

Good News ASI was dismissed from the lawsuit

Essential Public Services Colorado 10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality.
New Hampshire New Hampshire court upholds release and defines the steps under NH law to review a release.
Expert Witness Connecticut Summer camp being sued for injury from falling off horse wins lawsuit because the plaintiff failed to find an expert to prove their case.
Failure to Warn New York “Marketing makes promises Risk Management has to pay for” in this case the marketing eliminated the protection afforded by the warning labels
Foreseeability Colorado Be Afraid, be very afraid of pre-printed forms for your recreation business
Illinois When there is no proof that the problem created by the defendant caused the injury, there is no proximate causation, therefore no negligence
New Jersey Is a negligent act to open a car door into a bike lane when a cyclists is in the lane in New Jersey
Ohio Liability of race organizer for State Park Employees?
Washington Dive Buddy (co-participant) not liable for death of the diver because the cause of death was too distant from the acts of the plaintiff.
Idaho Federal Court in Idaho holds camp not liable for assault on third party by runaway minors.
Forum non conveniens Kansas If you fall down in a foreign country, and you have paid money to be there, you probably have to sue there.
Fraud Colorado 10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality
Fraudulent Inducement New Hampshire Did a Federal District Court in New Hampshire allow a release to bar a minor’s claims?
Fraudulent Misrepresentation Georgia Lying in a release can get your release thrown out by the court.
California Defendant tells plaintiff the release has no value and still wins lawsuit, but only because the plaintiff was an attorney
Gross Negligence California Release saves riding school, even after defendant tried to show plaintiff how to win the case.
Idaho Statements made to keep a sold trip going come back to haunt defendant after whitewater rafting death.
Maryland Sky Diving Release defeats claim by Naval Academy studenthttp://rec-law.us/1tQhWNN
Massachusetts Colleges, Officials, and a Ski Area are all defendants in this case.
Massachusetts Industry standards are proof of gross negligence and keep defendant in lawsuit even with good release
Michigan Good Release stops lawsuit against Michigan bicycle renter based on marginal acts of bicycle renter

Allowing climber to climb with harness on backwards on health club climbing wall enough for court to accept gross negligence claim and invalidate release.

Nebraska In Nebraska a release can defeat claims for gross negligence for health club injury
New Hampshire In this mountain biking case, fighting each claim pays off.
New Jersey New Jersey upholds release for injury in faulty bike at fitness club
New York New York judge uses NY law to throw out claim for gross negligence because the facts did not support the claim
Pennsylvania Scary and Instructional case on assumption of the risk in a climbing wall case in Pennsylvania
Pennsylvania wrongful death statute is written in a way that a split court determined the deceased release prevented the surviving family members from suing.
Tennessee 75 Ft waterfall, middle of the night, no lights and a BAC of .18% results in two fatalities and one lawsuit. However, facts that created fatalities were the defense
Texas Suit against a city for construction retaining wall in City Park identifies defenses to be employed to protect park patrons.
Utah Utah’s decision upholds a release for simple negligence but not gross negligence in a ski accident.

The safety precautions undertaken by the defendant in this mountain bike race were sufficient to beat the plaintiff’s claims of gross negligence in this Utah mountain bike fatality

Inherently Dangerous Missouri Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.
Inherent Risks California This California decision looks at assumption of the risk as it applies to non-competitive long distance bicycle rides and also determines that assumption of the risk also overcomes a violation of a statute (negligence per se).
Interlocutory Appeal Tennessee Tennessee still does not allow a parent to sign away a minor’s right to sue, but might enforce a jurisdiction and venue clause, maybe an arbitration clause
Utah Utah courts like giving money to injured kids
Invitee Missouri Missouri decision about ski rental form and a release that does not conform to MO law spell a mess for the ski resort
Mississippi Mississippi retailer not liable for injury to a child who rode a bicycle through aisles he found on the store floor.
Joint Venture Missouri Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.
Judgment Notwithstanding the Verdict (JNOV or J.N.O.V.) Maryland Skiing collision in Utah were the collision was caused by one skier falling down in front of the other skier
Missouri Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.
Lex loci contractus Tennessee Tennessee still does not allow a parent to sign away a minor’s right to sue, but might enforce a jurisdiction and venue clause, maybe an arbitration clause
Long Arm Statute Requirements New York To sue a Vermont ski area there must be more than a web presence to sue in New York
Material Breach of a Contract Texas University climbing wall release along with Texas Recreational Use Act and Texas Tort Claims Act defeat injured climber’s lawsuit
Motion to Dismiss Colorado Colorado Premises Liability act eliminated common law claims of negligence as well as CO Ski Area Safety Act claims against a landowner.
Illinois When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.
Negligence Georgia Georgia court finds no requirement for employee to interview when higher trained first aid providers are present
Idaho Idaho Supreme Court holds is no relationship between signs posted on the side of the trampoline park in a duty owed to the injured plaintiff
Illinois When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.
Indiana Indiana decision upholds release signed by mother for claims of an injured daughter for the inherent risks of softball.

An ugly case balancing the marketing program to make people feel safe, which is then used to prove the incident giving rise to the negligence claim, was foreseeable.

Louisiana Louisiana State University loses climbing wall case because or climbing wall manual and state law.
Maryland Plaintiff failed to prove that her injuries were due to the construction of the water park slide and she also assumed the risk.
Massachusetts Industry standards are proof of gross negligence and keep defendant in lawsuit even with good release
Mississippi Mississippi decision requires advance planning and knowledge of traveling in a foreign country before taking minors there.
Pennsylvania Pennsylvania Supreme Court decision on duty to have and use an AED defines how statutes are to be interpreted and when liability can attach and cannot attach to a statute
South Dakota Great analysis of the “Rescue Doctrine” in a ballooning case from South Dakota
Texas University climbing wall release along with Texas Recreational Use Act and Texas Tort Claims Act defeat injured climber’s lawsuit
Negligence (Collateral) Missouri Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.
Negligence Per Se Colorado Instructional Colorado decision Negligence, Negligence Per Se and Premises Liability
Florida Motion for Summary Judgement failed because the plaintiff’s claim was based upon a failure to follow a statute or rule creating a negligence per se defense to the release in this Pennsylvania sailing case.
South Dakota Great analysis of the “Rescue Doctrine” in a ballooning case from South Dakota
Illinois (does not exist) When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.
Negligent Misrepresentation New York The basics of winning a negligence claim is having some facts that show negligence, not just the inability to canoe by the plaintiff
No Duty Rule Pennsylvania The harder a court works to justify its decision the more suspect the reasoning.
Open and Obvious Michigan The assumption of risk defense is still available when the claim is based on a condition of the land. This defense is called the open and obvious doctrine.
New York “Marketing makes promises Risk Management has to pay for” in this case the marketing eliminated the protection afforded by the warning labels
Pennsylvania Release lacked language specifying the length of time it was valid. Since the court could not determine the time the case was sent to a jury for that determination.
Rhode Island
Passive-Retailer Doctrine Utah Retailers in a minority of states may have a defense to product liability claims when they have nothing to do with the manufacture of the product
Premises Liability Colorado Instructional Colorado decision Negligence, Negligence Per Se and Premises Liability
Mississippi Mississippi retailer not liable for injury to a child who rode a bicycle through aisles he found on the store floor.
Prima facie New Jersey New Jersey does not support fee shifting provisions (indemnification clauses) in releases in a sky diving case.
Prior Material Breach Texas University climbing wall release along with Texas Recreational Use Act and Texas Tort Claims Act defeat injured climber’s lawsuit
Product Liability Georgia Federal Court finds that assumption of the risk is a valid defense in a head injury case against a bicycle helmet manufacturer.
Tennessee Pacific Cycle not liable for alleged defective skewer sold to plaintiff by Wal-Mart
Utah Retailers in a minority of states may have a defense to product liability claims when they have nothing to do with the manufacture of the product
Negligent Product Liability Illinois Plaintiff fails to prove a product liability claim because she can’t prove what tube was the result of her injury
Public Policy California Defendant tells plaintiff the release has no value and still wins lawsuit, but only because the plaintiff was an attorney
Delaware Delaware Supreme Court decision quickly determines a health club release is not void because of public policy issues and is clear and unequivocal
Oregon Oregon Supreme Court finds release signed at ski area is void as a violation of public policy.
Pennsylvania Release lacked language specifying the length of time it was valid. Since the court could not determine the time the case was sent to a jury for that determination.
New Hampshire New Hampshire court upholds release and defines the steps under NH law to review a release.

Did a Federal District Court in New Hampshire allow a release to bar a minor’s claims?

Tennessee Tennessee still does not allow a parent to sign away a minor’s right to sue, but might enforce a jurisdiction and venue clause, maybe an arbitration clause
Punitive Damages New York “Marketing makes promises Risk Management has to pay for” in this case the marketing eliminated the protection afforded by the warning labels
Rescue Doctrine South Dakota Great analysis of the “Rescue Doctrine” in a ballooning case from South Dakota
Recklessness Missouri Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.
New Jersey New Jersey does not support fee shifting provisions (indemnification clauses) in releases in a sky diving case.
Ohio BSA (Cub Scout) volunteer was not liable for injuries to cub because cub assumed the risk of his injuries. The BSA & Council were not liable because volunteer was not an agent.

Ohio Appellate decision defines assumption of the risk under Ohio law and looks at whether spectators assume the risk.

Pennsylvania Neither a release nor the Pennsylvania Equine Liability Act protects a stable for injuries when the stirrup broke.
Release Connecticut Connecticut court rejects motion for summary judgment because plaintiff claimed he did not have enough time to read the release before he signed it
Colorado 10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality

Colorado Federal District Court judge references a ski area lift ticket in support of granting the ski area’s motion for summary judgment and dismissing the lawsuit.

New Hampshire New Hampshire court upholds release and defines the steps under NH law to review a release.
Oklahoma Oklahoma Federal Court opinion: the OK Supreme Court would void a release signed by the parent for a minor.
New Hampshire Did a Federal District Court in New Hampshire allow a release to bar a minor’s claims?
Pennsylvania Tubing brings in a lot of money for a small space, and a well-written release keeps the money flowing

Release lacked language specifying the length of time it was valid. Since the court could not determine the time the case was sent to a jury for that determination.

Neither a release nor the Pennsylvania Equine Liability Act protects a stable for injuries when the stirrup broke.

Texas University climbing wall release along with Texas Recreational Use Act and Texas Tort Claims Act defeat injured climber’s lawsuit
Release Fair Notice Requirement under Texas law Texas Federal Court in Texas upholds clause in release requiring plaintiff to pay defendants costs of defending against plaintiff’s claims.
Remittitur Missouri Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.
res ipsa loquitur Illinois When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.
Respondeat superior Missouri US Army and BSA not liable for injured kids on Army base. No control by the BSA and recreational use defense by US Army.
New Jersey The use of the PGA name was not enough to tire the PGA to a golf camp where they had no relationship or control. As such, they were dismissed from the suit because they had no duty to the injured minor.
Restatement (Second) of Torts Pennsylvania The harder a court works to justify its decision the more suspect the reasoning.
Standard Colorado
California
Words: You cannot change a legal definition
New York New York Decision explains the doctrine of Primary Assumption of the Risk for cycling
Ohio In Ohio, Primary Assumption of the Risk is a complete bar to claims for injuries from hiking at night
Rhode Island Rhode Island, applying New Hampshire law states a skier assumes the risk of a collision.
Standard of Review Pennsylvania Pennsylvania Supreme Court decision on duty to have and use an AED defines how statutes are to be interpreted and when liability can attach and cannot attach to a statute
Sudden Emergency Doctrine New York Eighteen year old girl knocks speeding cyclists over to protect children; Sudden Emergency Doctrine stops suit
Summary Judgment Connecticut Connecticut court rejects motion for summary judgment because plaintiff claimed he did not have enough time to read the release before he signed it
Pennsylvania Pennsylvania Supreme Court decision on duty to have and use an AED defines how statutes are to be interpreted and when liability can attach and cannot attach to a statute
Superseding or Intervening Causation Indiana An ugly case balancing the marketing program to make people feel safe, which is then used to prove the incident giving rise to the negligence claim, was foreseeable.
Tort Louisiana Louisiana court holds a tubing operation is not liable for drowning or failure to properly perform CPR
Unconscionable Delaware Delaware Supreme Court decision quickly determines a health club release is not void because of public policy issues and is clear and unequivocal
United States Constitution Fourteenth Amendment Buy something online and you may not have any recourse if it breaks or you are hurt
Willful, Wanton or Reckless Illinois When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.
Ohio Ohio Appellate decision upholds the use of a release for a minor for a commercial activity.
Ohio Poorly written release on a sign in sheet barely passes protecting Ohio defendant swimming area from suit.
Minnesota Plaintiff argues under Minnesota law the language on the back of the season pass created an ambiguity which should void the season pass release for a ski area.
Missouri Missouri decision about ski rental form and a release that does not conform to MO law spell a mess for the ski resort
Nebraska Fees are charged, recreation is happening, but can the recreational use act still protect a claim, yes, if the fees are not for the recreation
Washington Dive Buddy (co-participant) not liable for death of the diver because the cause of death was too distant from the cause of the death.
Wyoming Rental agreement release was written well enough it barred claims for injuries on the mountain at Jackson Hole Mountain Resort in Wyoming
Wrongful Death Ohio Poorly written release on a sign in sheet barely passes protecting Ohio defendant swimming area from suit.

Last Updated April 24, 2018

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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.

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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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