Lebeau v. Talbott

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

PETER LEBEAU, et al., Plaintiffs/Appellants,

v.

TOM TALBOTT, et al., Defendants/Appellees.

No. 1 CA-CV 21-0624
FILED 2-21-2023

Appeal from the Superior Court in Maricopa County
Nos. CV2017-010930
CV2017-050130
CV2018-005539
The Honorable Theodore Campagnolo, Judge

AFFIRMED

COUNSEL

Insurance Defense Law Group, L.L.C., Scottsdale
By Joseph P. Rocco, Jason S. Carr
Counsel for Plaintiffs/Appellants

Jones Skelton & Hochuli P.L.C., Phoenix
By Ryan J. McCarthy, Jonathan P. Barnes
Counsel for Defendant/Appellee, Constitution Week
Grasso Law Firm P.C., Chandler
By Robert Grasso Jr.
Co-Counsel for Defendant/Appellee, Town of Gilbert

Elardo, Bragg, Rossi & Paulumbo P.C., Phoenix
By Venessa J. Bragg
Co-Counsel for Defendant/Appellee, Town of Gilbert

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge James B. Morse Jr. joined.

B R O W N, Judge:

¶1 The Town of Gilbert (“Town”) issued a special event permit
to Constitution Week USA (“CW”) for an event on Town property. CW
then contracted with Arizona Skyhawks, an Arizona limited liability
company (“Skyhawks”), to perform an evening skydiving demonstration
with fireworks as part of the event. When the initial fireworks were ignited,
Skyhawks’ plane caught fire and crashed into the home of Peter and Sharon
Lebeau (“the Lebeaus”). The Lebeaus sued various parties, including CW
and the Town. The superior court granted summary judgment in favor of
CW and the Town. The Lebeaus challenge that ruling on appeal. For the
following reasons, we affirm.

BACKGROUND

¶2 CW is a private entity that organized, sponsored, and
promoted an annual event celebrating the signing of the United States
Constitution known as the Constitution Week Fair (“Fair”). Before the 2016
Fair, the skydiving demonstration contract was signed by Barbara Stowell
(“Stowell”) on behalf of CW, and by Tom Talbott (“Talbott”), on behalf of
Skyhawks. According to Talbott, CW specifically hired his company
because it used “pyrotechnics” as part of its air show.

¶3 Skyhawks submitted a form requesting authorization for the
flight with the Federal Aviation Administration (“FAA”). The FAA
approved the application and issued a certificate of authorization for
“Parachute Operations Over or Into a Congested Area or Open-Air

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Assembly of Persons.” Skyhawks’ application did not disclose that it
intended to use pyrotechnics during the flight.

¶4 Shortly before the airshow, Skyhawks attached a homemade
metal pyrotechnic box (“Gerb Box”) to the plane’s left “main landing gear
step” by using “three bolts and nuts.” See Gerb, Merriam-Webster,
https://www.merriam-webster.com/dictionary/gerb (“a firework
throwing a shower of sparks”). Skyhawks then placed two gerbs inside the
box. Although the parties debate whether the gerbs constitute “fireworks”
in a legal context, the precise label is irrelevant for resolving the issues in
this appeal. A trigger device was located just behind the pilot’s seat, which
when activated would relay an electrical signal through a wire to the Gerb
Box and ignite the gerb. Here, before the trigger was activated and just as
the skydivers were preparing to jump, the first gerb ignited and caused a
fire that quickly spread throughout the plane. The skydivers were able to
exit, along with the pilot, but the plane crashed into the Lebeaus’ home.

¶5 The Lebeaus filed suit against various entities and
individuals, including CW, Skyhawks, and the Town. After extensive
discovery, the Town moved for summary judgment on all claims against it,
but specifically focused on the Lebeaus’ strict liability and negligence
claims. CW then moved for summary judgment on the claims of vicarious
liability, joint liability, and all other claims. The superior court granted both
motions and entered judgment under Arizona Rule of Civil Procedure
54(b). The Lebeaus timely appealed and we have jurisdiction under A.R.S.
§ 12-2101(A)(1).

DISCUSSION

¶6 Summary judgment is proper when “there is no genuine
dispute as to any material fact and the moving party is entitled to judgment
as a matter of law.” Ariz. R. Civ. P. 56(a). “We review the entry of summary
judgment de novo, viewing the facts in the light most favorable to the
nonmoving party.” Dinsmoor v. City of Phoenix, 251 Ariz. 370, 373, ¶ 13
(2021). We also review de novo other issues of law, including the existence
of a duty. Quiroz v. ALCOA Inc., 243 Ariz. 560, 564, ¶ 7 (2018).

A. Duty―Town of Gilbert

¶7 As a threshold issue, a plaintiff pursuing a claim for
negligence bears the burden of establishing a legal duty. Id. at 563–64, ¶ 7.
To prevail on their negligence claim against the Town, the Lebeaus must
first establish that the Town owed them a duty “to conform to a particular

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standard of conduct to protect [them] against unreasonable risks of harm.”
Dinsmoor, 251 Ariz. at 373, ¶ 14. We do not consider foreseeability when
analyzing whether a duty exists. Quiroz, 243 Ariz. at 564, ¶ 11. Generally,
when no special relationship exists, whether a duty exists “is a legal matter
to be determined before the case-specific facts are considered.” Dinsmoor,
251 Ariz. at 376, ¶ 26 (clarifying that the cautionary statement against
considering the specific facts of the case applies “when a special
relationship [is] absent”).

¶8 Duties are based on “special relationships” or on other
relationships formed by public policy. Quiroz, 243 Ariz. at 565, ¶ 14.
“Special relationships include those recognized at common law and those
formed by contracts, joint undertakings, and family relationships.”
Dinsmoor, 251 Ariz. at 373, ¶ 14. For other relationships, public policy
creating a duty may be based on statutes, or on the common law, such as a
section of the Restatement. See Quiroz, 243 Ariz. at 565, ¶ 15. A statute may
create a duty when a plaintiff “is within the class of persons to be protected
by the statute and the harm that occurred . . . is the risk that the statute
sought to protect against.” Id. (citation omitted). Although not clearly
stated, the Lebeaus appear to rely on three grounds for establishing a duty
based on public policy: (1) Town ordinances and a special events manual,
(2) voluntary undertaking, and (3) a general non-delegable duty.

¶9 Before addressing those grounds, we must analyze the scope
of the alleged duty. The Lebeaus broadly assert the Town owed them “a
common law duty of due care to investigate, evaluate, control, supervise
and only allow and permit such an ultrahazardous event . . . that [is] safe
and [does] not endanger property, citizens, and the public.” In support of
those assertions, the Lebeaus point to many facts in the record to justify
imposing a legal duty on the Town. Indeed, the Lebeaus’ framing and
analysis of the duty issue focuses almost entirely on those case-specific
facts, which is improper because no special relationship exists in the context
of this case. See id. at ¶ 13. Instead, we frame the issue as whether a
municipality that issues a special event permit owes a duty of care to protect
the general public from risks of harm created by a third party that contracts
with the event organizer to provide services for the event.

¶10 The Lebeaus argue the Town’s ordinances, as well as less
formal documents, create a duty. The Lebeaus reference several Town
Code Provisions as well as an “event planning guide” that addresses
guidelines for approving special events and fireworks displays. But the
Lebeaus do not address their obligation to show they are “within the class
of persons to be protected” by those ordinances or the planning guide, or

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that the airplane crashing into their home is the risk that the ordinances
“sought to protect against.” See id. at ¶ 15. The Lebeaus’ argument fails for
that reason alone. Also, they cite no authority suggesting a municipal
regulatory ordinance, or a guide prepared by municipal staff, creates a duty
of care to protect the general public from harm as a result of issuing a special
event permit to the entity organizing the event.

¶11 The Lebeaus summarily assert the Town assumed the duty to
protect them from harm based on Restatement 323 (Duty to Aid Others and
Services Gratuitously Rendered or Undertaken). However, nothing in their
briefing shows, and our review has not revealed, that this argument was
presented to the superior court. It is therefore waived. See Odom v. Farmers
Ins. Co. of Arizona, 216 Ariz. 530, 535, ¶ 18 (App. 2007) (“Generally,
arguments raised for the first time on appeal are untimely and deemed
waived.”).

¶12 The Lebeaus also suggest the Town has a non-delegable duty
of care to all of its residents or visitors. In support, they cite cases relating
to traffic signals and safe streets. See, e.g., Wiggs v. City of Phoenix, 198 Ariz.
367 (2000). A non-delegable duty for proper maintenance of streets and
traffic signals makes sense because the Town controls that infrastructure.
But the Lebeaus essentially seek to impose a duty of care on the Town to
protect every person who lives in or is present in the Town from any harm
resulting from mere issuance of a special event permit. Doing so would
improperly make the Town “‘general insurers’ for the safety of all citizens.”
Hogue v. City of Phoenix, 240 Ariz. 277, 281, ¶ 13 (App. 2016).

¶13 The Town owed no duty of care to the Lebeaus because there
is no special relationship between them. Public policy does not support
imposing a duty on a municipality to control the actions of an independent
contractor who performs services for the organizer of a special event. Cf.
Ritchie v. Costello, 238 Ariz. 51, 55, ¶ 14 (App. 2015) (“[E]xposing event
organizers to that kind of liability would have a chilling effect on
municipal-sponsored social gatherings—a result that we have deemed
contrary to public policy.”). Given this conclusion, we do not address the
Town’s argument that it was entitled to summary judgment based on
federal preemption because the Town “had no authority or jurisdiction to
determine the airworthiness” of the airplane used by Skyhawks.

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B. Vicarious Liability

1. Constitution Week

¶14 Generally, a principal is not vicariously liable for the
negligence of an independent contractor. See S. A. Gerrard Co. v. Fricker, 42
Ariz. 503, 506 (1933). This rule is “premised both on a notion of fairness
and on a policy theory of risk allocation.” Ft. Lowell-NSS Ltd. P’ship v. Kelly,
166 Ariz. 96, 100 (1990). Liability is limited because it would be unjust to
hold an employer liable for the tortious acts of a contractor over which there
was no control. Id.

¶15 Nonetheless, a court may impose vicarious liability when the
independent contractor is hired to perform inherently dangerous work or
work involving a special danger. Fricker, 42 Ariz. at 507; Restatement
(Second) of Torts § 427. The risk must be “recognizable in advance[,]”
“inherent in the work itself, or normally to be expected in the ordinary
course of the usual or prescribed way of doing it, or that the employer has
special reason to contemplate such a risk . . . .” Id. § 247 cmt. b. In deciding
whether an activity is inherently dangerous, the court considers if the
exercise of reasonable care can eliminate the risk of harm and if that risk is
“to the person, land or chattels of another.” Pride of San Juan, Inc. v. Pratt, 221 Ariz. 337, 340, ¶ 11 (App. 2009). “[W]hether an activity is inherently
dangerous depends on the facts of each case.” Id. at ¶ 13. An activity is
inherently dangerous if the risk involved is recognizable in advance and
inherent in the work, or the risk is one that is normally expected in carrying
out the task at hand. Id. at ¶ 11.

¶16 It is undisputed that Skyhawks was hired as an independent
contractor, and the Lebeaus do not identify any evidence in the record
showing that CW retained any control over how Skyhawks fulfilled its
contractual responsibility of performing at the Fair. Nor does the record
show that CW possessed any expertise or knowledge needed to perform
the work Skyhawks was hired to do. Thus, for the Lebeaus’ vicarious
liability claim to survive, the work involved needed to be “inherently
dangerous.” Fricker, 42 Ariz. at 507. The risk involved here was “to the
person, land or chattels of another.” See Pride of San Juan, 221 Ariz. at 340,
¶ 11. CW asserts that the relevant activity for analyzing inherent
dangerousness here was the implementation and use of the Gerb Box. The
Lebeaus seem to contend that we should consider the entire airshow for the
analysis.

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¶17 The relevant activity at issue, and the associated risk, was
attaching the Gerb Box to the plane to store the gerbs until their ignition.
Given the potential interaction of airplane fuel and fireworks, we agree that
storage and use of gerbs in a box bolted to the surface of an airplane is
inherently dangerous, at least for purposes of analyzing the summary
judgment motion.

¶18 Besides establishing that the work involves an inherently
dangerous activity, the principal must know or have reason to know that
the danger is “inherent in or normal to the work” or that it is contemplated
when making the contract. Restatement (Second) of Torts
§ 427. An actor has “reason to know” if he knows facts from which a
reasonable person “of ordinary intelligence . . . would either infer the
existence of the fact in question or would regard its existence as so highly
probable that his conduct would be predicated upon the assumption that
the fact did exist.” Delmastro & Eells v. Taco Bell Corp., 228 Ariz. 134, 143,
¶ 29 (App. 2011) (citation omitted). The “reason to know” standard differs
from the “should know” standard because it carries no implied “duty of
ascertaining the fact in question.” Restatement (Second) of Torts § 12 cmt.
a. In contrast, “should know” implies that the actor has a duty to use
“reasonable diligence” to ascertain the fact in question. Id.

¶19 Concluding that CW did not know or have reason to know
Skyhawks was engaged in an inherently dangerous activity, the superior
court found that “CW had no knowledge and was not informed by anyone
on the skydiving team that the airplane contained a gerb box with silver
fountains [gerbs] attached . . . .” The Lebeaus argue the court “improperly
determined issues of fact and improperly weighed evidence when it
determined that CW could not be vicariously liable” for Skyhawks’ acts and
omissions.

¶20 Viewing the facts in the light most favorable to the Lebeaus,
no genuine disputes of material fact support their argument that CW knew
or had reason to know that fireworks would be discharged from a Gerb Box
attached to the airplane. Talbott testified that CW knew Skyhawks used
pyrotechnics as part of its routine and that, in his opinion, this was part of
the reason Skyhawks was hired. Talbott also testified that he informed
Barbara Stowell of CW that Skyhawks “now had a new part of our show
where you can see the plane coming from a further distance. It looks like a
meteor coming through the sky. . . it’s pretty cool.” According to Talbott,
Stowell replied “Cool. Sounds great.”

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¶21 The Lebeaus then point to several isolated portions of
Stowell’s deposition testimony. When asked about the trail of light that
would come from the plane, and what would most likely be the cause, she
responded:

I guess it would have been a gerb, a firework, or a sparkler.
And they—as soon as they jumped out of the plane, they
turned it on. Whether they took a match and lit it or pulled a
cord or turned a flashlight on it, I don’t know. I wasn’t up
there.

Stowell also clarified that she did not know what was emitting the light nor
that it would be on the airplane itself. During her deposition, she was
shown a video of a night parachute jump performed by Skyhawks at a
balloon festival that occurred around 2010. When asked to compare the
video with what she had seen at CW events, she testified that they were
similar but that the light from the skydivers was not so pronounced as in
the video.

¶22 The Lebeaus argue these pieces of evidence taken together
show that Stowell and CW had reason to know that fireworks would be
discharged from the Gerb Box. As noted, the “reason to know” standard
does not impute a duty of investigation to the actor; instead, the actor is
presumed to be “reasonable” and have “ordinary intelligence” and
knowledge. Restatement (Second) of Torts § 12 cmt. a. The evidence
described above does not show that Stowell had reason to know about the
fireworks being discharged from the plane’s exterior surface. None of the
evidence the Lebeaus cite confirms that Stowell was aware, and much less
understood, that the fireworks would be emanating from a metal box
physically attached to the airplane. A reasonable person of ordinary
intelligence would not assume that an analogy to a meteor means that the
fireworks would be discharged directly from a box bolted to the surface of
the plane rather than by the parachutists after exiting the plane. No genuine
dispute exists that Stowell neither knew nor had reason to know of the
placement or proposed use of the Gerb Box.

¶23 CW relies heavily on Stowell’s testimony during which she
was asked to opine about what mechanism on the plane emitted the light
that trailed the plane. Read in context, her full answer confirms she did not
know what was on the airplane and was merely listing possibilities.
Moreover, even if she reasonably concluded that the fireworks originated
from the Gerb Box based on the events she witnessed from the ground just
before the plane crash, that does not show she had any awareness of the

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box before the event. The only pertinent fact she was told beforehand was
that the display would look like a meteor.

¶24 The Lebeaus contend that because Stowell had seen
Skyhawks’ air show before, she should have had reason to know there were
fireworks placed in a box attached to the plane. The record does not
support the Lebeaus’ contention. Talbott testified that although Skyhawks
had used a Gerb Box for other shows, the first time it was done for CW was
at the 2016 Fair. Indeed, Talbott explained that before the “industry”
started using the Gerb Box concept, performers used a variety of other ways
to emit sparkler-type lights from the airplane, including using road flares,
or placing “a variety of things on a broomstick and stick[ing] it out of the
door to set it off.” By attaching the Gerb Box to the airplane, Skyhawks
created a new risk that was not reasonably contemplated by CW, so
vicarious liability does not apply. See Restatement (Second) of Torts § 427
cmt. d (inherently dangerous activity rule does not apply when the
contractor’s negligence “creates a new risk, not inherent in the work itself .
. . and not reasonably to be contemplated by the employer”).

¶25 Assuming that Stowell had reason to know about the planned
use of the Gerb Box, CW would have been obligated to take “reasonable
precautions against such danger.” Restatement (Second) Torts § 427. CW
required Skyhawks to have demonstration jump insurance. CW could have
asked Skyhawks for the FAA certificate of authorization, but even if it had
done so the fireworks were not listed on the certificate nor was there any
form of FAA approval of the Gerb Box. It would have been reasonable for
CW, as the event organizer, to expect to rely on the authorization form from
the FAA and the expertise of Skyhawks as to all aspects of its flight,
pyrotechnics, and parachuting demonstration. Thus, although attaching
the Gerb Box to the plane for purposes of lighting the gerbs was an
inherently dangerous activity, no genuine issues of material fact show that
CW had reason to know the box existed. CW is not vicariously liable to the
Lebeaus.

¶26 We also reject the Lebeaus’ assertion that the summary
judgment ruling in favor of CW did not dispose of all claims against it.
Although the motion specifically focused on vicarious liability, CW asked
for judgment on all claims.

2. The Town

¶27 The superior court found that the Town was not, as a matter
of law, vicariously liable for Skyhawks’ negligence. Among other things,

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the court explained that “the Town was not the sponsor or organizer of the
Constitution Week USA event, and cannot be considered as a party to the
contract” between CW and Skyhawks.

¶28 The Lebeaus assert that “cities have a non-delegable duty to
maintain safe streets and are in fact vicarious[ly] liable for the negligence or
fault of their employees, agents, and subcontractors.” See Wiggs, 198 Ariz.
at 369–70, ¶ 8. But the Town issued a special event permit to CW, which in
turn contracted with Skyhawks. There was no contract between the Town
and Skyhawks for this event, and the Lebeaus have not shown that CW or
Skyhawks were employees, agents, or subcontractors of the Town. As a
matter of law, the Town cannot be found vicariously liable for Skyhawks’
actions or omissions.

C. Strict Liability

¶29 Under Arizona law, “strict liability will never be found unless
the defendant is aware of the abnormally dangerous condition or activity,
and has voluntarily engaged in or permitted it. Mere negligent failure to
discover or prevent it is not enough . . . .” Perez v. Southern Pacific Transp.
Co., 180 Ariz. 187, 189 (App. 1993) (citation omitted).

¶30 Strict liability and vicarious liability are distinct theories. Id.
at 188. Whether something is abnormally dangerous “is not a fact question;
such determinations are for the court.” Id. To make this determination, a
court considers six factors: (a) high degree of risk of harm to person, land,
or chattels; (b) likelihood of resulting harm; (c) inability to eliminate the risk
by using reasonable care; (d) whether the activity is a matter of common
usage; (e) inappropriateness of the activity to where it is carried out; and (f)
the extent to which the activity’s community value is outweighed by
dangerous attributes. See Restatement (Second of Torts) § 520.

¶31 The superior court explained that it could not determine, on
the record before it, whether Skyhawks conducted an abnormally
dangerous activity. Nonetheless, the court concluded that neither CW nor
the Town could be held strictly liable, because neither had notice that
Skyhawks was “flying in an abnormally dangerous condition or activity.”
We agree. Given our conclusion above that neither CW nor the Town knew
or had reason to know about the existence or planned use of the Gerb Box,
it follows that neither party was aware of, engaged in, or permitted an
“abnormally dangerous condition or activity.” Perez, 180 Ariz. at 189. Thus,
even assuming the activity was abnormally dangerous, the strict liability
claim fails for lack of notice.

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CONCLUSION

¶32 We affirm the superior court’s grant of summary judgment.

AMY M. WOOD • Clerk of the Court
FILED: AA

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