United States District Court, D. Arizona
Ronald Lee, husband/ individually and on his own behalf and
as Conservator and Guardian for his incapacitated adult son:
on behalf of Jeremy Woodrow Lee, Raola Lee, wife/
individually and on her own behalf and as Conservator and
Guardian for her incapacitated adult son: on behalf of Jeremy
Woodrow Lee, Plaintiffs: John Patrick Torgenson, LEAD
ATTORNEY, Torgenson Law PLC, Phoenix, AZ.
City of Kingman, a political subdivision of the State of
Arizona, Defendant: Mark G Worischeck, Shanks Leonhardt, LEAD
ATTORNEYS, Sanders & Parks PC, Phoenix, AZ.
Mohave County Fair Association, an Arizona non-profit
corporation, Defendant: Adam Thomas Reich, William Lee
Thorpe, LEAD ATTORNEYS, Thorpe Shwer PC, Phoenix, AZ; Mark G
Worischeck, LEAD ATTORNEY, Shanks Leonhardt, Sanders & Parks
PC, Phoenix, AZ.
Huisky Trading Company Limited, a New York Corporation,
Defendant: Mitchell J Resnick, LEAD ATTORNEY, Resnick & Louis
PC, Scottsdale, AZ; Richard James Brumbaugh, Jr., LEAD
ATTORNEY, Resnick & Louis PC, Scottsdale, AZ.
AND OPINION [Re: Motion at Docket 34]
SEDWICK, SENIOR UNITED STATES DISTRICT JUDGE.
docket 34 defendant City of Kingman (" Kingman" )
moves to dismiss the First Amended Complaint ("
FAC" ) of plaintiffs Ronald Lee and Raola Lee ("
the Lees" ), pursuant to Federal Rule of Civil Procedure
12(b)(6). The Lees oppose at docket 37. Kingman replies at
docket 41. Kingman filed a notice of supplemental authority
at docket 42, to which the Lees respond at docket
43. Oral argument was not requested and
would not assist the court.
case arises out of a tragic accident at a Fourth of July
fireworks show co-hosted by defendants Kingman and the Mohave
County Fair Association (" MCFA" ) in 2013. The
Lees' son, Jeremy Woodrow Lee (" Jeremy" ), was
working the show as a pyrotechnic assistant employed by
defendant Lantis Fireworks (" Lantis" ). He
suffered catastrophic injuries when at least one of the
fireworks exploded out of the side of its launch tube
housing, striking him in the face.
Lees filed this action, invoking the court's diversity
jurisdiction, after they were appointed as Jeremy's
conservators and guardians. The Lees' original complaint
names only Kingman as a defendant. The FAC adds as
defendants Kingman Boomers Non-Profit, Inc., (" Kingman
Boomers" ); the MCFA; and Huisky Trading Company, Ltd.
(" Huisky" ). After Kingman filed the motion to
dismiss currently before the court, the Lees filed their
Second Amended Complaint (" SAC" ), which removes
Kingman Boomers as a defendant and names numerous additional
parties that allegedly manufactured, distributed, shipped,
and stored the defective firework cake. Although
Kingman's present motion to dismiss is directed toward
the FAC, the court will consider it as directed toward the
SAC because the SAC's changes are irrelevant to
STANDARD OF REVIEW
12(b)(6) tests the legal sufficiency of a plaintiff's
claims. In reviewing such a motion, " [a]ll allegations
of material fact in the complaint are taken as true and
construed in the light most favorable to the nonmoving
party."  To be assumed true, the allegations,
" may not simply recite the elements of a cause of
action, but must contain sufficient allegations of underlying
facts to give fair notice and to enable the opposing party to
defend itself effectively."  Dismissal for failure to
state a claim can be based on either " the lack of a
cognizable legal theory or the absence of sufficient facts
alleged under a cognizable legal theory."  "
Conclusory allegations of law . . . are insufficient to
defeat a motion to dismiss." 
avoid dismissal, a plaintiff must plead facts sufficient to
" 'state a claim to relief that is plausible on its
face.'"  " A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged."  "
The plausibility standard is not akin to a 'probability
requirement,' but it asks for more than a sheer
possibility that a defendant has acted unlawfully."
" Where a complaint pleads facts that are 'merely
consistent with' a defendant's liability, it
'stops short of the line between possibility and
plausibility of entitlement to relief.'"
 " In sum, for a complaint to
survive a motion to dismiss, the non-conclusory 'factual
content,' and reasonable inferences from that content,
must be plausibly suggestive of a claim entitling the
plaintiff to relief." 
alleges four causes of action against Kingman: (1) strict
liability; (2) negligence; (3) vicarious liability; and (4)
loss of consortium. Kingman argues that each fails to state a
Strict and Vicarious Liability
Lees' first cause of action alleges that Kingman and the
MCFA are strictly liable for Jeremy's injuries because
the pyrotechnics fireworks show they hosted was an "
abnormally dangerous activity."  Their third cause
of action alleges that Kingman and the MCFA are vicariously
liable for Lantis' negligence. Relying on Welker
v. Kennecott Copper Co.  and its progeny,
Kingman argues that both of these causes of action fail to
state a claim because " Arizona law bars an injured
employee of an independent contractor from holding a
landowner strictly or vicariously liable for injuries
suffered while performing his work for the landowner."
common law, an employer was exempt " from liability for
his independent contractor's negligence" under what
became known as the " independent contractor rule."
 This rule is expressed in Section
409 of the Restatement (First) of Torts as follows: "
the employer of an independent contractor is not subject to
liability for bodily harm caused to another by a tortious act
or omission of the contractor or his servants."
 The idea behind this rule is that
" it would be unjust to hold an employer liable for the
negligence of an independent contractor over whom he had no
in around 1850, courts began recognizing numerous exceptions
to the independent contractor rule based on a landowner's
nondelegable duty to invitees. The general idea behind these
exceptions is that it would be unjust to allow an employer to
escape liability for an activity she caused to be performed
simply because she delegated the work to a
contractor. At present, the " general rule
for independent contractor cases is still that the employer
is not liable unless he has been independently negligent, as
by improper selection of the contractor or in some other
manner," but this rule does not apply, and an employer
may be held strictly or vicariously liable, if one of the
many exceptions to the rule is satisfied.
416 to 429 of the Restatement (First) of Torts contain
exceptions to the
independent contractor rule. Kingman argues that
none of these exceptions apply because Welker makes
clear that the duties set out in those exceptions are owed to
third parties, not employees of the independent contractor.
Welker involved negligence claims brought on behalf
of a worker who was killed while working on the
defendant's property. The plaintiff argued that the
defendant landowner was liable for the decedent's
injuries under various sections of the
Restatement, two of which are relevant to the
present action. The first is Section 427, which states that a
landowner " who employs an independent contractor to do
work which is inherently dangerous to others is subject to
liability for bodily harm caused to them by the
contractor's failure to exercise reasonable care to
prevent harm resulting from the dangerous character of the
work."  The second is Section 414, which
states that the landowner is personally (not vicariously)
liable for failing to exercise reasonable care regarding the
work over which he retained control.
Welker court held that the duties set out in the
sections cited by the plaintiff, except for those set out in
Section 414, are not owed to an independent contractor's
employees for two reasons: (1) " the workman's
recovery is now . . . regulated by workmen's compensation
acts,"  and (2) a bright line rule was
needed to reduce litigation over whether a particular job was
" inherently dangerous."  With regard to
Section 414, however, the court held that a landowner
personally owes Section 414 duties to an independent
contractor's employees because " [t]he division of
control, particularly in the area of safety precautions, may
have some tendency to cause accidents." 
Lees counter that Welker does not foreclose their
claims because it does not address, and therefore does not
extinguish, liability under two sections of the Restatement
(Second) of Torts: Section 423 and Section 519. Because these
two sections are substantively identical to the sections
addressed in Welker, the Lees' argument lacks
Vicarious liability under Section 423
423 is included in chapter 15, topic two of the Restatement
(Second) of Torts, and contains exceptions to the independent
contractor rule in situations where a landowner may be held
vicariously liable based on his " non-delegable duty to
others to make the completed work reasonably safe."
 Section 423, entitled " Making
Repair of Instrumentalities Used in Highly Dangerous
Activities," provides as follows:
One who carries on an activity which threatens a grave risk
of serious bodily harm or death unless the instrumentalities
used are carefully constructed and maintained, and who
employs an independent contractor to construct or maintain
such instrumentalities, is subject to the same liability for
physical harm caused by the negligence of the contractor in
constructing or maintaining such instrumentalities as though
the employer had himself done the work of construction or
Lees argue that they state a valid claim under Section 423
because " Welker did not include [Section] 423
in the sections inapplicable to ...