Grogan v. Beale Aero Club et al

Filing 56

ORDER denying 43 Motion to Dismiss signed by District Judge John A. Mendez on 6/2/16. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES M. GROGAN,

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2:15-cv-00562-JAM-KJN

Plaintiff,

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No.

v.

ORDER DENYING DEFENDANT’S MOTION
TO DISMISS

UNITED STATES OF AMERICA; and
DOES 1–30,

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Defendants.
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Plaintiff James M. Grogan (“Plaintiff”) sued Defendant

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United States of America (the “United States”) to recover for

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injury allegedly sustained when the aircraft he was flying lost

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power and crashed.

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Plaintiff’s Second Amended Complaint (SAC), contending Plaintiff

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expressly waived his right to sue. 1

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the United States’ motion is DENIED.

The United States seeks to dismiss

For the following reasons,

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I.

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FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

On or about January 19, 2013, Plaintiff was piloting an

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for May 17, 2016.
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aircraft provided to him by Beale Aero Club.

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Aero Club is a non-appropriated fund instrumentality of the

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United States.

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aircraft “lost power and crashed to the ground, thereby causing

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serious injury to Plaintiff.”

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Id. ¶¶ 8, 21.

SAC ¶¶ 8-9.

Beale

Plaintiff alleges that the

Id. ¶ 9.

Subsequently, Plaintiff filed a personal injury complaint

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against, inter alia, the United States.

In his SAC (Doc. #36),

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Plaintiff seeks to hold the United States liable for the manner

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in which it “owned, operated, repaired, overhauled, inspected,

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maintained, modified, altered, and/or was otherwise responsible

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for the airworthiness of” the aircraft, and for breach of express

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and implied warranties of airworthiness.

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The United States has moved to dismiss under Federal Rule of

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Civil Procedure (“Rule”) 12(b)(6) (Doc. #43).

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(Doc. #53), and the United States has replied (Doc. #54).

Plaintiff opposes

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II.

OPINION

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A.

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The United States requests that the Court consider three

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agreements entitled “Covenant Not to Sue and Indemnity Agreement”

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(the “Covenants”) that Plaintiff executed in May of 2010, 2011,

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and 2012 (Doc. #44-1).

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(“Mot.”) (Doc. #44) 6:12–22.

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Judicial Notice

Mem. of P. & A. ISO Mot. to Dismiss

Generally, the Court may not consider material beyond the

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pleadings in ruling on a motion to dismiss under Rule 12(b)(6).

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Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005).

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exceptions are “situations in which the plaintiff’s claim depends

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on the contents of a document, the defendant attaches the
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The

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document to its motion to dismiss, and the parties do not dispute

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the authenticity of the document, even though the plaintiff does

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not explicitly allege the contents of that document in the

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complaint.”

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Id.

Plaintiff does not allude to the Covenants in the body of

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his SAC, but his “claim depends on the contents of” the

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Covenants, id., because he “would have no valid claims unless the

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[Covenants] did not bar them,” Birdsong v. AT & T Corp., No. C12-

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6175 TEH, 2013 WL 1120783, at *2 (N.D. Cal. Mar. 18, 2013).

The

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United States attached the Covenants signed by Plaintiff to its

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motion to dismiss.

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that the Covenants are unenforceable, he does not dispute the

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Covenants’ authenticity or the fact that he signed them.

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Although Plaintiff argues in his opposition

The Court considers the Covenants attached to the United

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States’ motion to dismiss under the incorporation by reference

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doctrine.

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B.

Analysis

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The United States argues that all of Plaintiff’s causes of

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action are barred by the Covenants because the Covenants relieve

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the United States of a legal duty to Plaintiff.

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Covenants state in pertinent part:

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Mot. 6:28.

I . . . am about to voluntarily participate in various
activities, including flying activities, of the Beale
Aero Club as a pilot, student pilot, copilot,
instructor, or passenger. In consideration of the
Aero Club permitting me to participate in these
activities, I, for myself . . . hereby covenant and
agree that I will never institute, prosecute, or in
any way aid in the institution or prosecution of, any
demand, claim, or suit against the US Government for
any destruction, loss, damage, or injury (including
death) to my person or property which may occur from
any cause whatsoever as a result of my participation
in the activities of the Aero Club. . . .
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The

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I know, understand, and agree that I am freely
assuming the risk of my personal injury, death, or
property damage, loss or destruction that may result
while participating in Aero Club activities, including
such injuries, death, damage, loss or destruction as
may be caused by the negligence of the US Government.

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Ex. 1.

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sufficiently clear and unambiguous, do not contravene public

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policy, and are enforceable.

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Plaintiff counters in pertinent part that the Covenants are

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contrary to public policy.

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The United States contends that the Covenants are

E.g., Mot. 8:3, 11:14–17.

Pl.’s Opp’n to Mot. (“Opp’n”) 8:10–

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The California Supreme Court has held that for “an express

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assumption of risk agreement” to relieve defendant of a legal

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duty to plaintiff, the agreement may not violate public policy.

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Knight v. Jewett, 3 Cal. 4th 296, 308 n.4 (1992).

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policy opposes private, voluntary transactions in which one

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party, for a consideration, agrees to shoulder a risk which the

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law would otherwise have placed upon the other party. . . .”

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Tunkl v. Regents of Univ. of Cal., 60 Cal. 2d 92, 101 (1963).

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release or waiver agreement that is invalid for public policy

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reasons “exhibits some or all of the following characteristics”

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or factors:

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“[N]o public

It concerns a business of a type generally thought
suitable for public regulation. The party seeking
exculpation is engaged in performing a service of
great importance to the public, which is often a
matter of practical necessity for some members of the
public. The party holds himself out as willing to
perform this service for any member of the public who
seeks it, or at least for any member coming within
certain established standards. As a result of the
essential nature of the service, in the economic
setting of the transaction, the party invoking
exculpation possesses a decisive advantage of
bargaining strength against any member of the public
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A

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who seeks his services. In exercising a superior
bargaining power the party confronts the public with a
standardized adhesion contract of exculpation, and
makes no provision whereby a purchaser may pay
additional reasonable fees and obtain protection
against negligence. Finally, as a result of the
transaction, the person or property of the purchaser
is placed under the control of the seller, subject to
the risk of carelessness by the seller or his agents.
Id. at 98-101 (footnotes omitted).
“[T]he question of whether a general release ‘affects the

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public interest, and is thus void as a matter of public policy,

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requires analysis of the transaction giving rise to the

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contract. . . .’”

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Cal.App.4th 1173, 1178 (2008) (quoting Gavin W. v. YMCA of Metro.

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Los Angeles, 106 Cal.App.4th 662, 670 (2003)).

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activity affects the public interest is objectively determined.”

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Id. at 1179.

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Booth v. Santa Barbara Biplanes, LLC, 158

“Whether the

The parties dispute whether “flying activities” at Beale

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Aero Club affect the public interest.

The United States argues:

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“[E]xculpatory agreements in the recreational sports context do

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not implicate the public interest.”

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51 Cal.App.4th 1358, 1373 (1996).

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contends “[o]perating a single-engine airplane is a flying

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activity” that does not implicate the public interest, Mot.

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14:20–23, and cites a number of cases in the recreational sports

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context.

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summary judgment in favor of respondents, the court explained

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that “[r]ecreational activities such as snow skiing or parachute

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jumping are not essential services or necessities affecting the

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public,” and similarly held a release which tourists signed

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before an aerial sightseeing tour was not void as a matter of

Allan v. Snow Summit, Inc.,
Applying this principle, it

For example, it cites Booth, where on appeal from

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public policy, in part because aerial sightseeing tours are not

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an essential service or necessity affecting the public interest.

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158 Cal.App.4th at 1179.

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“common carriers provide an important public service,”

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respondents provided a non-essential service—“aerial sightseeing

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tours of Santa Barbara”—which is unlike “an air carrier

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transporting passengers for compensation between points within

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th[e] state.”

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Elsinore Parachute Ctr., 168 Cal.App.3d 333, 342–43 (1985)

The court reasoned that although

Id. (internal quotation marks omitted); Hulsey v.

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(affirming summary judgment for defendant and finding parachute

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jumping is not an essential service or necessity affecting the

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public interest).

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Plaintiff challenges the United States’ arguments by

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likening Beale Aero Club to “an airplane repair facility,” which

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also provides “aviation training and rentals.”

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9:27–10:2.

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App. 3d 713, 720 (1986), where the appellate court, in affirming

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the trial court judgment, held that a car repair service is

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deemed to “affect the public interest,” and therefore, the car

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repair service’s attempt to disclaim liability via a contractual

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waiver was void on public policy grounds.

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Plaintiff’s contentions, the United States argues that “Plaintiff

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pursued recreational flying through a military base’s Aero Club.”

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Reply Mem. ISO Mot. 4:5–8.

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Opp’n 8:19–26,

He cites Gardner v. Downtown Porsche Audi, 180 Cal.

In response to

Here, the Covenants state Plaintiff assumed the risk of

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participating in “flying activities.”

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United States defines “flying activities” as a recreational

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activity in its dismissal motion, there is no evidence at this
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Ex. 1.

Although the

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early stage of the proceedings to support this definition, or

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explain the services provided by Beale Aero Club.

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Complaint elaborate on Beale Aero Club’s services or the activity

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Plaintiff engaged in when the aircraft crashed.

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Plaintiff simply alleges that he “was piloting aircraft Cessna

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172,” SAC ¶ 9, “provided to him by Beale Aero Club,” id. ¶ 8,

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without explaining why he was piloting the aircraft or why Beale

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Aero Club provided the aircraft.

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assertion, Plaintiff does not allege he pursued “recreational”

Nor does the

Instead,

Contrary to the United States’

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flying when piloting the aircraft. As such, the Court lacks

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sufficient information to assess the Tunkl factors.

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The Court must therefore deny the United States’ request

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that the Court find as a matter of law that “flying activities”

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at Beale Aero Club do not affect the public interest,

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notwithstanding the important policies that have led courts to

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enforce release or waiver agreements in the recreational sports

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context.

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Court, 215 Cal.App.3d 934, 938 (1989) (“Unless courts are willing

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to dismiss such actions without trial, many popular and lawful

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recreational activities are destined for extinction.”).

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Court need not, and does not, reach the parties’ further

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disagreements concerning whether California Civil Code section

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1668 2 invalidates the Covenants, and whether Plaintiff’s

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allegations of gross negligence and recklessness render the

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See Nat’l & Int’l Bhd. of St. Racers, Inc. v. Superior

The

Section 1668 provides: “All contracts which have for their
object, directly or indirectly, to exempt anyone from
responsibility for his own fraud, or willful injury to the person
or property of another, or violation of law, whether willful or
negligent, are against the policy of the law.” Cal. Civ. Code
§ 1668.
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Covenants unenforceable as to those causes of action.

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III.

ORDER

For the reasons set forth above, the Court DENIES the United
States’ motion to dismiss.
IT IS SO ORDERED.
Dated:

June 2, 2016

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