
    Ronald LEE, et al., Plaintiffs, v. CITY OF KINGMAN, et al., Defendants.
    3:14-cv-08218 JWS
    United States District Court, D. Arizona.
    Signed 08/25/2015
    
      John Patrick Torgenson, Torgenson Law PLC, Stephen Dominic Benedetto, Peoples Law Firm PLC, Phoenix, AZ, for Plaintiffs.
    Mark G. WorischeCk, Shanks Leonhardt, Sanders '& Parks PC, Adam Thomas Reich, William Lee Thorpe, Thorpe Shwer PC, Phoenix, AZ, Mark Alan Sippel, Sippel Law Firm PLLC, Kingman, AZ, Mitchell J. Resnick, Richard James Brumbaugh, Jr., Resnick & Louis PC, Scottsdale, AZ, for Defendants.
   ORDER AND OPINION

JOHN W. SEDWICK, SENIOR UNITED STATES DISTRICT JUDGE

I. MOTION PRESENTED

At docket 34 defendant City of hangman (“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.

II. BACKGROUND

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. The FAC adds as defendants King-man 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 théir 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 Kingman’s motion.

III. STANDARD OF REVIEW

Rule 12(b)(6) tests the legal sufficiency of a plaintiffs 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.”

To 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 tó 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.”

IV. DISCUSSION

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.” 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.”

At 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 control.”

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. 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.

Sections 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 ne'gligence 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.

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,” 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.”

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 428 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.” Section 423, entitled “Making or Repair of Instrumentalities Used in Highly Dangerous Activities,” provides as follows:

One who carnes on an activity which threatens a grave risk of serious bodily harm or death unless the instrumentalities used aré 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.

The Lees argue that they state a valid claim under Section 423 becáuse “Welker did not include [Section] 423 in the sections inapplicable to employees of independent contractors.”

The Lees are misreading Welker. Welker .stands for - the proposition that none of the non-delegable duties found in Sections 416 to 425 of the Restatement (First) of Torts are owed to an independent contractor’s, employees. Although the Lees are correct that Section 423 was not at issue in Welker, the court’s ruling necessarily and expressly encompass that section. The Lees argue that the Arizona Supreme Court held otherwise in Rager v. Superior Coach Sales & Serv., but that case is inapposite- because there the injured party was a third-party motorist, not an injured employee of an independent contractor. The Lees’ vicarious liability claim against Kingman will be dismissed.

2. Strict liability under Section 519

Sections 519 and 520 are part of chapter 21 of the Restatement, which covers strict liability for abnormally dangerous activities. Section 519 of the Restatement (Second) of Torts sets out the general principle of strict liability for abnormally dangerous activities as follows:

(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.
(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.

Section 520 of the Restatement (Second) of Torts lists the following six factors that are to considered when determining whether a given activity - is “abnormally dangerous”:

(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise.of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f) extent to which its.value to.the community is outweighed by its dangerous attributes,

Although Welker does not explicitly mention Section 519, Kingman argues that imposing strict liability would contravene Welker's rule against landowner liability for injuries sustained by an independent contractor’s employees. The court agrees..

Welker held that the strict liability exception to the independent contractor rule set out in Section 427. (renumbered as Section 427A in the Restatement (Second) of Torts) does not apply where the injured party is the independent contractor’s employee. This holding extinguishes the Lees’ Section 519 claim—Section 519’s general strict liability standards are incorporated into Section 427 and were addressed in Welker. Because Welker holds that the strict liability doctrine described in Section 427 (and by necessary implication, Section 519) does not apply where the injured party was the contractor’s employee, the Lees’ strict liability cause of action fails to state a claim.

B. Negligence

The Lees’ negligence claim alleges premises liability—that Kingman breached its duty “to inspect and make the premises safe” for workers like Jeremy. Kingman argues that this claim fails because the Lees do not allege that Kingman turned over to Lantis unsafe premises. The Lees’ response does not dispute that the SAC fails to allege unsafe premises. This alone justifies dismissal of their claim.

Instead of defending their premises liability cause of action, the Lees respond to Kingman’s argument by offering an alternative theory of liability. They argue that Kingman is- liable under Section 414 of the Restatement because it retained control over the Fireworks show under its contract with Lantis, The rule of nonliability adopted by the Welker court would not preclude such a claim; that rule “is limited to the situation where the contractee has turned over safe premises to the independent contractor without hidden and/or concealed defects” and has not retained control of the premises as set out in Section 414 of the Restatement.

Section 414 states that landowners are subject to personal liability for their negligence in exercising their retained supervisory control over their independent contractors. A landowner who “retains the' control of any part of the work” entrusted to an independent contractor" “is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.” Whether a landowner has “retain[ed] the control of any part of the work” is a question of fact that should ordinarily be left to the jury.

The flaw with the Lees’ argument is that the SAC does not plead a Section 414 claim: it neither invokes Section 414 nor alleges that Kingman retained any supervisory control over Lantis’ - work. Instead of pointing to their complaint, the Lees point to Kingman’s contract with Lantis as proof that Kingman retained sufficient control to subject it to Section 414 liability. The court declines to consider this contract because it is an exhibit to Kingman’s motion and not a part of the SAC. The Lees may not use their opposition to Kingman’s motion to substitute the flawed premises liability claim they pled for a new Section 414 claim they did not.

C. Loss of Consortium

Kingman argues that the Lees’ loss of consortium claim is untimely. A.R.S. § 12-821.01 requires all parties with claims against a public entity to file claims with the public entity within 180 days of accrual; A.R.S. § 12-821 requires such parties to file suit within one year of accrual. The Lees filed their claim with Kingman on May 5, 2014, and filed this action on November 5, 2014. Thus, if the Lees’ loss of consortium claim accrued on the date of the accident (July 4, 2013), as Kingman argues, then their claim is untimely under both statutes of limitations cited by Kingman.

The Lees argue these statutes of limitations should be equitably tolled because they did not retain counsel until about thirteen days after their notice of claim was due and because Kingman has not been prejudiced by their untimely filing. “Equitable tolling applies when the plaintiff is excusably ignorant of the limitations period and the defendant would not be prejudiced by the late filing.” “Under equitable tolling, plaintiffs may sue after the statutory time period for filing a complaint has expired if they have been prevented from filing in a timely manner due to sufficiently inequitable circumstances.” In order for the equitable tolling doctrine to apply, the plaintiff must establish that she was prevented from timely filing because of “extraordinary circumstances.”

The Lees do not cite any cases holding that a plaintiffs failure to retain counsel within the limitations period was a sufficient “extraordinary circumstance” to justify application of the equitable tolling doctrine. The court need not consider this question, however, because it is undisputed that when the Lees retained counsel they had about six months to file suit against Kingman. The Lees offer no explanation for why they failed to file suit between January 2014, when they retained counsel, and July 2014, when the one-year statute of limitations expired. Because the Lees and their counsel had ample time to bring suit within the limitations period, the equitable tolling doctrine is of no avail to them, and their suit against Kingman is barred by A.R.S. § 12-821.

Y. CONCLUSION

For the reasons set forth above, the motion at docket 34 is GRANTED. Defendant City of hangman is DISMISSED as a defendant in this action. 
      
      . The Lees styled their response as a "surreply." A surreply is a "movant’s second supplemental response to another party’s opposition to a .motion.” Black’s Law Dictionary (10th ed.2014). Because the Lees are not a movant, their filing at docket 43 is not a surreply. Their filing is better styled as a surresponse. See id. (defining a "surresponse” as "[a] second response by someone who opposes a motion.”). Regardless, surrepliés and surresponses are not authorized by Rule 7, any other Federal Rule of Civil Procedure, or this District’s Local Rules, absent prior leave of court. See Millenium 3 Technologies v. AR-INC, Inc., No. CV08-1257-PHX-JAT, 2008 WL 4737887, at *2 (D.Ariz. Oct. 29, 2008) (regarding surreplies); Padilla v. Bechtel Const. Co., No. CV 06 286 PHX LOA, 2007 WL 625927, at *1 (D.Ariz. Feb. 27, 2007) (regarding surresponses). The Lees’ filing was improper because it was filed without leave of court. But in order to advance the purpose of securing a just, speedy, and inexpensive determination of this action, see Rule 1, and because Kingman does not object to the Lees’ filing, the Court will treat the Lees’ filing as a motion to file a surresponse, grant that motion, and consider their filing at docket 43.
     
      
      . Doc. 1 at 1.
     
      
      . Doc. 10 at 1.
     
      
      . Doc. 58.
     
      
      . Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir.1997).
     
      
      . Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir.2011).
     
      
      . Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1990).
     
      
      . Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir.2001).
     
      
      . Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
     
      
      . Id.
      
     
      
      . Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955).
     
      
      . Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955).
     
      
      . Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.2009); see also Starr, 652 F.3d at 1216.
     
      
      . Doc. 58 at 7 ¶ 29.
     
      
      . Id. at 8 ¶¶ 37-42.
     
      
      . 1 Ariz.App. 395; 403 P.2d 330 (Ariz.1965).
     
      
      . Doc. 34 at 4.
     
      
      . Ft. Lowell-NSS Ltd. P'ship v. Kelly, 166 Ariz. 96, 800 P.2d 962, 966 (1990).
     
      
      . Restatement (First) of Torts § 409 (1934).
     
      
      . Kelly, 800 P.2d at 966.
     
      
      . Id.
      
     
      
      . Id. at 967. The Kellycourt noted that "[t]he recognized exceptions have become so numerous that some commentators have questioned the validity of the rule itself.” Id.
      
     
      
      . Restatement (First) of Torts ch. 15, topic 1, intro, note (stating that an employer may be subject to vicarious liability “in those exceptional situations, dealt with in §§ 416 to 425 inclusive, in which the employer owes a nondelegable duty to others to make the completed work reasonably safe,” as well as in the situations stated in §§ 426 to 429, in which "the employer is made liable for the negligent manner in which the contractor and his servants do the detail of certain kinds of work entrusted to them, to the same extent as though the contractor and his servants were the servants of the employer himself.”).
     
      
      . Welker, 403 P.2d at 335-36 (citing Restatement (First) of Torts §§ 413, 414, 416, 422, and 427).
     
      
      . Restatement (First) of Torts § 427.
     
      
      . Id. § 414.
     
      
      . Welker, 403 P.2d at 338.
     
      
      . Id. at 339.
     
      
      . Id. at 340.
     
      
      . Restatement (Second) of Torts ch. 15, topic 1, intro, note (1965). See also Lee v. M & H Enterprises, Inc., 237 Ariz. 172, 347 P.3d 1153, 1157 n. 4 (Ariz.Ct.App.2015).
     
      
      . Restatement (Second) of Torts § 423.
     
      
      . Doc. 37 at 4.
     
      
      . Welker, 403 P.2d at 336-37 (quoting Restatement (First) of Torts ch. 15, topic 1, intro, note). See also id. at 337 (stating the omission of references to contractor employees in the comments to Section 423, among others, is an "[a]dditional clue[] that it was not intended that [the duties set forth in Section 423] apply to workmen on the job.”).
     
      
      . Id. at 337.
     
      
      . 111 Ariz. 204, 526 P.2d 1056, 1061 (1974).
     
      
      . Restatement (Second) of Torts § 519 (1977).
     
      
      . Doc. 41 at 6-7.
     
      
      . Welker, 403 P.2d at 339.
     
      
      . The comments to Section 427A state that an employer’s liability under Section 427A is determined by reference to the strict liability standards found in Section 519, among other sections. Restatement (Second) of Torts § 427A comment a. See also Apostal v. Oliveri Const. Co., 287 Ill.App.3d 675, 222 Ill.Dec. 884, 678 N.E.2d 756, 760 (Ill.Ap.Ct.1997) (“The Restatement of Torts explains that strict liability may be imposed as a matter of law on persons, including property owners and employers, who undertake an activity which is, by definition, either ultrahazardous or abnormally dangerous,”) (citing Restatement (First) of Torts §§ 519, 520; Restatement (Second) of Torts §§ 427A, 519, 520)).
     
      
      . See also Lee, 347 P.3d at 1156 (citing Welker for the proposition that "Arizona courts. have consistently recognized that a landowner is not liable for the negligent conduct of an independent contractor unless the landowner has been independently negligent.”).
     
      
      . Doc. 58 at 7 ¶¶ 33-34.
     
      
      . Doc. 37 at 12-14.
     
      
      . Welker, 403 P.2d at 339.
     
      
      . Restatement (Second) of Torts .§ 414. comment a.
     
      
      . Id. § 414.
     
      
      . Lewis v. N.J. Riebe Enterprises, Inc., 170 Ariz. 384, 825 P.2d 5, 10 (1992) (quoting Restatement (Second) of Torts § 414).
     
      
      . Doc. 37 at 13.
     
      
      . A.R.S. § 12-821.01(A).
     
      
      . A.R.S. § 12-821.
     
      
      . There are 305 days between July 4, 2013 and May 5, 2014. There is about one year and four months between July 4, 2013 and November 5, 2014.
     
      
      . Doc. 37 at 14-15.
     
      
      . Kyles v. Contractors/Engineers Supply, Inc., 190 Ariz. 403, 949 P.2d 63, 65 (Ariz.Ct.App.1997).
     
      
      . McCloud v. State, Ariz. Dep't of Pub. Safety, 217 Ariz. 82, 170 P.3d 691, 696 (Ariz.Ct.App.2007) (internal quotation omitted).
     
      
      . Id.
      
     