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Lee v. City of Kingman

United States District Court, D. Arizona

August 25, 2015

Ronald Lee, et al., Plaintiffs,
City of Kingman, et al., Defendants

          For 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.

         For City of Kingman, a political subdivision of the State of Arizona, Defendant: Mark G Worischeck, Shanks Leonhardt, LEAD ATTORNEYS, Sanders & Parks PC, Phoenix, AZ.

         For 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.

         For 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.

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         ORDER AND OPINION [Re: Motion at Docket 34]



         At 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.[1] Oral argument was not requested and would not assist the court.


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         This 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.

         The 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.[2] The FAC adds as defendants Kingman Boomers Non-Profit, Inc., (" Kingman Boomers" ); the MCFA; and Huisky Trading Company, Ltd. (" Huisky" ).[3] After Kingman filed the motion to dismiss currently before the court, the Lees filed their Second Amended Complaint (" SAC" ),[4] 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 Kingman's motion.


         Rule 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." [5] 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." [6] 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." [7] " Conclusory allegations of law . . . are insufficient to defeat a motion to dismiss." [8]

         To avoid dismissal, a plaintiff must plead facts sufficient to " 'state a claim to relief that is plausible on its face.'" [9] " 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." [10] " 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." [11]

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" 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.'" [12] " 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." [13]


         The SAC 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 claim.

         A. Strict and Vicarious Liability

         The 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." [14] Their third cause of action alleges that Kingman and the MCFA are vicariously liable for Lantis' negligence.[15] Relying on Welker v. Kennecott Copper Co. [16] 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." [17]

         At common law, an employer was exempt " from liability for his independent contractor's negligence" under what became known as the " independent contractor rule." [18] 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." [19] 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 control." [20]

         Beginning 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.[21] 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.[22]

         Sections 416 to 429 of the Restatement (First) of Torts contain exceptions to the

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independent contractor rule.[23] 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,[24] 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." [25] 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.[26]

         The 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," [27] and (2) a bright line rule was needed to reduce litigation over whether a particular job was " inherently dangerous." [28] 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." [29]

         The 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 merit.

         1. Vicarious liability under Section 423

         Section 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." [30] Section 423, entitled " Making or

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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 maintenance.[31]

         The Lees argue that they state a valid claim under Section 423 because " Welker did not include [Section] 423 in the sections inapplicable to ...

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