Ritchie v. Costello

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
KENNETH RITCHIE and SALLY KATHLEEN RITCHIE, husband and
wife, Counterclaim Plaintiffs/Appellants,
v.
TIM COSTELLO and JANE DOE COSTELLO, husband and wife; ALECK
GRADIJAN and JANE DOE GRADIJAN, husband and wife;
COTTONWOOD MUNICIPAL AIRPORT; COTTONWOOD AIRPORT
COMMISSION; COTTONWOOD POLICE DEPARTMENT; CITY OF
COTTONWOOD; DIANE JOENS; KAREN PFEIFER; TIM ELINSKI;
DAROLD SMITH; DUANE KIRBY; LINDA NORMAN; TERENCE
PRATT; JAMES MOENY; MARV LAMER; DOUG PALMQUIST; and BILL
TINNIN, Counterclaim Defendants/Appellees.
No. 1 CA-CV 14-0185
FILED 8-25-2015
Appeal from the Superior Court in Yavapai County
No. V1300CV201180212
The Honorable Joseph C. Butner III, Judge Pro Tempore
AFFIRMED
COUNSEL
Curry, Pearson & Wooten, PLC, Phoenix
By Michael W. Pearson, Kyle B. Sherman
Counsel for Counterclaim Plaintiffs/Appellants
Gallagher & Kennedy, P.A., Phoenix
By Kevin D. Neal, Jennifer A. Cranston, Kimberly G. Allen
Counsel for Counterclaim Defendants/Appellees
OPINION
Presiding Judge Maurice Portley delivered the Opinion of the Court, in
which Judge John C. Gemmill and Judge Michael J. Brown joined.
P O R T L E Y, Judge:
¶1 Kenneth Ritchie (“Ritchie”) appeals a summary judgment in
favor of the City of Cottonwood, Cottonwood Municipal Airport, other
municipal entities and individuals (collectively, “Cottonwood Airport”).
Ritchie contends that the trial court erred by ruling, as a matter of law, that
the Cottonwood Airport did not owe a duty of care to him when he had a
mid-air collision with a hot air balloon. For the reasons that follow, we
affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 The City of Cottonwood was the sponsor of the Cottonwood
Airfest, an annual event featuring hot air balloons lifting off early in the
morning and other activities at the Cottonwood Municipal Airport. A flyer
was distributed specifically inviting hot air balloonists to attend the Airfest
and asking them to pass the word to other balloonists. The flyer also asked
the balloonists to RSVP and provided a telephone number and email
address.
¶3 The day before the 2010 Airfest, Ritchie, a retired doctor, and
his son, Scott Ritchie, met with Scott Nichol, a hot air balloon pilot, and
planned to have Ritchie fly his powered paraglider (a one-person ultralight
aircraft) and take mid-air photos of Nichol’s balloon, using mid-air
communications. The Ritchies did not, however, RSVP that their
paragliders would fly in the Airfest, nor did they advise any officials of their
plan to photograph the Nichols’ balloon.
¶4 Early on the morning of the October 16, 2010 Airfest, the
Ritchies went to the airport and told a volunteer they were “participants.”
They went to the hot air balloon launching area, but did not tell the
volunteer they would be flying their powered paragliders. In fact, no
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Opinion of the Court
Airfest official expected powered paragliders to participate prior to their
arrival. As a result, Ritchie did not receive, nor participate in any pre-flight
safety briefing from any Airfest official.
¶5 When Airfest officials saw the Ritchies attempting to set up
their powered paragliders to launch with the hot air balloons, they told the
Ritchies to move to a different location because of other traffic. The
Cottonwood Municipal Airport is an uncontrolled airport; it does not have
an air traffic control tower or other means to control air traffic leaving,
landing or flying around the airport.1 After moving their launch location
three times, the Ritchies were able to safely launch their paragliders.
¶6 Ritchie climbed to 1500 feet and had been flying for about
thirty minutes when his paraglider collided with a hot air balloon about a
quarter-mile east of the airport. Both aircraft crashed, and Ritchie and the
people in the basket of the balloon were injured. One of the balloon’s
passengers, John Biddulph, D.D.S., filed a lawsuit against various
Cottonwood municipal entities and individuals, as well as Ritchie and his
spouse.2 The balloon’s pilot, E. Pell Wadleigh, D.D.S., and his spouse, along
with passenger, Susan Evans, and her spouse, also filed suit. Ritchie, in
turn, filed a cross-claim against Cottonwood in the Biddulph case and a
counterclaim against Cottonwood in the other case. Ritchie subsequently
filed a motion for partial summary judgment in the consolidated matters,
and Cottonwood Airport filed a cross-motion seeking the dismissal of
Ritchie’s claims with prejudice. After argument and considering the record,
the trial court granted summary judgment in favor of Cottonwood Airport.
Ritchie appealed, and we have jurisdiction under Arizona Revised Statutes
(“A.R.S.”) section 12-2101(A)(1).3
1 Uncontrolled airport procedures are dictated by Federal Aviation
Administration regulations. See generally U.S. Dep’t of Transp. Fed.
Aviation Admin., Aeronautical Information Manual: Official Guide to Flight
Information and ATC Procedures (2014); Fed. Aviation Admin., Advisory
Circular, AC No. 90-66A, Recommended Standard Traffic Patterns and
Practices for Aeronautical Operations at Airports Without Operating
Control Towers (Aug. 26, 1993).
2 After Dr. Biddulph passed away, the personal representative of his estate
filed an amended complaint on behalf of the estate, and his daughter filed
suit as his surviving daughter.
3 We cite the current version of the statute unless otherwise noted.
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DISCUSSION
¶7 In reviewing a motion for summary judgment, we determine
de novo whether any genuine disputes of material fact exist and whether
the trial court properly applied the law. See Eller Media Co. v. City of Tucson,
198 Ariz. 127, 130, ¶ 4, 7 P.3d 136, 139 (App. 2000). We view the facts and
the inferences to be drawn from those facts in the light most favorable to
the party against whom judgment was entered. AROK Constr. Co. v. Indian
Constr. Svcs., 174 Ariz. 291, 293, 848 P.2d 870, 872 (App. 1993). Summary
judgment will be granted 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).
¶8 “To establish a claim for negligence, a plaintiff must prove
four elements: (1) a duty requiring the defendant to conform to a certain
standard of care; (2) a breach by the defendant of that standard; (3) a causal
connection between the defendant’s conduct and the resulting injury; and
(4) actual damages.” Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9, 150 P.3d 228,
230 (2007) (citation omitted). Duty is an “‘obligation, recognized by the law,
requiring the [defendant] to conform to a certain standard of conduct, for
the protection of others against unreasonable risks.’” Ontiveros v. Borak, 136
Ariz. 500, 504, 667 P.2d 200, 204 (1983) (quoting W. Prosser, Handbook on the
Law of Torts § 30, at 143 (4th ed. 1971)). “The existence of a duty is a question
of law that we review de novo.” Diaz v. Phoenix Lubrication Serv., Inc., 224
Ariz. 335, 338, ¶ 12, 230 P.3d 718, 721 (App. 2010) (citing Ritchie v. Krasner,
221 Ariz. 288, 295, ¶ 11, 211 P.3d 1272, 1279 (App. 2009)). The existence of
a duty must be based on either the relationship between the parties or
established by public policy. Gipson, 214 Ariz. at 144–45, ¶¶ 18, 22, 150 P.3d
at 231–32. And the duty of care “may arise from a special relationship based
on contract, family relations, or conduct undertaken by the defendant, or
may be based on categorical relationships recognized by the common law,
such as landowner-invitee. Public policy used to determine the existence
of a duty may be found in state statutory laws and the common law.” Delci
v. Gutierrez Trucking Co., 229 Ariz. 333, 336, ¶ 12, 275 P.3d 632, 635 (App.
2012) (citations omitted).
¶9 Ritchie contends that the trial court erred as a matter of law
by finding that the Cottonwood Airport did not owe him a duty of care as
an invitee when the mid-air collision occurred. Although agreeing with the
court’s determination that Cottonwood owed him a duty at the airport, he
disagrees that the duty did not continue after he became airborne or that it
was limited to the geographical boundaries of the airport, and argues that
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Cottonwood had a duty to maintain reasonably safe conditions for all
aircraft using the airport during Airfest. We disagree.
¶10 Assuming that Ritchie, the paraglider, was a business invitee,
the Cottonwood Airport owed Ritchie a duty to maintain the airport
premises in a reasonably safe manner. See Nicoletti v. Westcor, Inc., 131 Ariz.
140, 142-43, 639 P.2d 330, 332-33 (1982). The duty also includes the
obligation to use reasonable care to provide the invitee with a reasonably
safe means of ingress and egress. Id. at 143, 639 P.2d at 333; Stephens v.
Bashas’ Inc., 186 Ariz. 427, 430, 924 P.2d 117, 120 (App. 1996). An operator
of an airport “owes a duty to the public to maintain reasonably safe
conditions for aircraft using the airport, and that duty extends to runways.”
Catchings v. City of Glendale, 154 Ariz. 420, 425, 743 P.2d 400, 405 (App. 1987)
(citations omitted); see also Mills v. Orcas Power & Light Co., 355 P.2d 781,
784-86 (Wash. 1960) (finding that the airport operator has the primary
obligation to warn landing or departing airplanes about structures that may
obstruct the proper general take-off or landing flight way since it has a duty
to provide safe premises for airplane use).
¶11 A landowner’s obligation to invitees, however, is not
limitless. See Restatement (Second) of Torts § 314A cmt. c (1965) (noting
that the duty ceases when the person ceases to be an invitee). Once an
invitee safely leaves the premises, the landowner-invitee relationship
terminates, as does the landowner’s duty to the invitee. See Riddle v. Ariz.
Oncology Servs., Inc., 186 Ariz. 464, 468–69, 924 P.2d 468, 472–73 (App. 1996)
(affirming dismissal of claim against employer arising from auto accident
that occurred after employer sent impaired employee home early); Wickham
v. Hopkins, 226 Ariz. 468, 472, ¶ 17, 250 P.3d 245, 249 (App. 2011) (holding
that the landowner-licensee relationship ceased when the licensee left the
landowner’s property); see also Price v. Canadian Airlines, 429 F. Supp. 2d
459, 465–66 (D.N.H. 2006) (granting airline summary judgment for claim
arising from injury in airport after passenger was safely off the airplane and
away from the airline gate).
¶12 Here, Ritchie came to the Airfest with his son, and both
paragliders were moved around to avoid other airport traffic. Like the hot
air balloons that safely launched, Ritchie successfully launched and flew his
paraglider for about one-half hour before the accident. As a result, he
ceased to be an invitee after successfully getting into the air and moving
away from the airport. The mid-air collision did not happen when he was
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attempting to take off or land his paraglider at the uncontrolled airport.4
Compare Stephens, 186 Ariz. at 430, 924 P.2d at 120 (noting that a landowner
owed a duty to truck driver while he was attempting to access defendant’s
property to deliver goods) with Traudt v. City of Chicago, 240 N.E.2d 188, 191
(Ill. App. Ct. 1968) (affirming dismissal because the decedent was not using
the airport’s ingress or egress at the time he landed in the lake adjacent to
the airport and drowned). Instead, the accident occurred in the air while
Ritchie was taking photographs and did not see the Wadleigh hot air
balloon. Consequently, based on the record before the trial court, the
Cottonwood Airport did not owe a duty to Ritchie.
¶13 Ritchie also contends that the Cottonwood Airport had a duty
to warn him of dangerous conditions. As applicable here, any duty to warn
arose from the invitee relationship. See Gipson, 214 Ariz. at 144–45, ¶¶ 18,
22, 150 P.3d at 231–32. After Ritchie successfully left the airport, he was no
longer an invitee; as such, the Cottonwood Airport did not have a duty to
warn him of the obvious – that there were many hot air balloons in the sky
floating in the currents of wind and he had to be careful to avoid the risk of
colliding with any of them. See Flowers v. K-Mart Corp., 126 Ariz. 495,
497-98, 616 P.2d 955, 957-58 (App. 1980); see also Restatement (Second) of
Torts § 343A (1965) (“A possessor of land is not liable to his invitees for
physical harm caused to them by any activity or condition on the land
whose danger is known or obvious to them, unless the possessor should
anticipate the harm despite such knowledge or obviousness.”).
¶14 Equally unpersuasive is Ritchie’s argument that public policy
supports holding that the Cottonwood Airport owed him a duty during his
entire flight. In Wickham, we noted that hosting a “social gathering does not
automatically implicate a public policy creating a duty to take action to
protect [a guest] after he left the premises.” 226 Ariz. at 474, ¶ 28, 250 P.3d
at 251. Additionally, exposing 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. See Barkhurst v.
Kingsmen of Route 66, Inc., 234 Ariz. 470, 475–76, ¶¶ 19–21, 323 P.3d 753,
758–59 (App. 2014) (rejecting public policy argument that would impose
duty on event organizers for portions of event outside their control).
Finally, the Cottonwood Airport did not have the ability to control the
4 Although it was asserted at our oral argument that Ritchie was planning
to return to the airport, and his reply brief asserts that he was in a flight
pattern to land at the airport, there was no admissible evidence presented
to the trial court that suggested Ritchie was in the general process of
attempting to land or landing at the airport at the time of the accident.
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airspace where the aerial accident took place. See 14 C.F.R. § 91.113(providing right-of-way rules for aircraft); 14 C.F.R. § 91.126 (listing
regulations for the airspace around an uncontrolled airport); see also Bishop
v. City of Chicago, 257 N.E.2d 152, 155 (Ill. App. Ct. 1970) (noting that an
airport operator as possessor of land does not owe a duty of care to business
invitees who are outside the physical premises over which airport operator
has control); Clark v. New Magma Irrigation & Drainage Dist., 208 Ariz. 246,
251, ¶ 21, 92 P.3d 876, 881 (App. 2004) (holding that a defendant easement
holder did not owe duty to protect an invitee from a fence which the
defendant had no right to control).5 As a result, the trial court did not err
in granting summary judgment.
CONCLUSION
¶15 For the foregoing reasons, we affirm the judgment.
:ama
5Ritchie also contends that a defendant is not released from liability if his
actions increase the foreseeable risk of harm through the actions of a third
party. Our supreme court has, however, specifically stated that courts may
not consider foreseeability when deciding if a duty exists. Gipson, 214 Ariz.
at 144, ¶ 15, 150 P.3d at 231.
7