Thompson v. Summers, 19940

Decision Date13 August 1997
Docket NumberNo. 19940,19940
Citation1997 SD 103,567 N.W.2d 387
PartiesMarvin THOMPSON, Plaintiff and Appellant, v. Charles SUMMERS, Defendant and Appellee.
CourtSouth Dakota Supreme Court

Dave L. Claggett of Claggett & Madsen, Spearfish, for plaintff and appellant.

Donald A. Porter of Costello, Porter, Hill, Heisterkamp & Bushnell, Rapid City, for defendant and appellee.

SABERS, Justice.

¶1 Personal injury action was dismissed for failure to state a claim upon which relief could be granted. We reverse.


¶2 On September 4, 1993, Charles Summers was piloting a hot air balloon in an instructional flight over Rapid City, accompanied by flight student Matt McCormick. At about 8:25 a.m., Summers attempted to land the balloon in a public recreational area of Rapid City's flood plain known as the "greenway." Marvin Thompson, also a hot air balloon pilot, was at the greenway and recognized the balloon as one he sold to Summers. As Thompson observed Summers' descent, he became concerned the wind was going to drag the balloon into nearby high voltage power lines. As the balloon skimmed across the ground toward the power lines, Thompson ran over and seized the basket of the balloon, hoping to prevent it from making contact with the power lines. Despite his efforts, Thompson suffered severe electrical burns to over 60% of his body. Summers and McCormick were apparently not injured.

¶3 Thompson sued Summers for his injuries, claiming he was negligent in not employing the rip cord to "rip out" the balloon, a procedure which instantly deflates and stops the balloon. Failure to do so, he claims, was negligence and the cause of his injuries. He argues that, under the "rescue doctrine," it was foreseeable to Summers that a bystander might intervene when Summers' negligence put others in peril. In addition, Thompson claims Summers violated several state and federal statutory duties of care pertaining to hot air balloon piloting and landing safety, including proper use of the ripcord.

¶4 Without submitting an answer, Summers made a motion to dismiss the complaint, alleging that Thompson failed to state a claim upon which relief could be granted according to SDCL 15-6-12(b)(5) [hereinafter Rule 12(b)(5) ], which provides:

Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:


(5) Failure to state a claim upon which relief can be granted[.] 1

The trial court granted the motion and dismissed the complaint with prejudice. Thompson appeals.


¶5 A motion to dismiss under Rule 12(b)(5) tests the law of a plaintiff's claim, not the facts which support it. Stumes v. Bloomberg, 1996 SD 93, p 6, 551 N.W.2d 590, 592; Schlosser v. Norwest Bank South Dakota, 506 N.W.2d 416, 418 (S.D.1993) (citations omitted). The motion is viewed with disfavor and is rarely granted. Schlosser directs the trial court to consider

the complaint's allegations and any exhibits which are attached. The court accepts the pleader's description of what happened along with any conclusions reasonably drawn therefrom. The motion may be directed to the whole complaint or only specified counts contained in it.... "In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." [quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957) ]. The question is whether in the light most favorable to the plaintiff, and with doubt resolved in his or her behalf, the complaint states any valid claim of relief. The court must go beyond the allegations for relief and "examine the complaint to determine if the allegations provide for relief on any possible theory." [quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1357 (1971) ].

506 N.W.2d at 418 (emphasis added). As this appeal presents a question of law, our review is de novo, with no deference given to the trial court's legal conclusions. City of Colton v. Schwebach, 1997 SD 4, p 8, 557 N.W.2d 769, 771.


¶7 Thompson advances at least three legal theories which may support his cause of action. We need not, and do not, decide whether he will ultimately succeed on any of these theories. See Schlosser, 506 N.W.2d at 418:

[P]leadings should not be dismissed merely because the court entertains doubts as to whether the pleader will prevail in the action as this is a matter of proof, not pleadings. The rules of procedure favor the resolution of cases upon the merits by trial or summary judgment rather than on failed or inartful accusations.

(Quoting Janklow v. Viking Press, 378 N.W.2d 875, 877 (S.D.1985) (citing Federal Practice and Procedure, supra )).

¶8 First, Thompson argues that the common law of negligence, particularly the "rescue doctrine," is applicable to this case. 2 That doctrine is simply an adjunct of the common law of negligence. It is "nothing more than a negligence doctrine addressing the problem of proximate causation." Lowery v. Illinois Cent. Gulf R.R. Co., 891 F.2d 1187, 1194 (5th Cir.1990); accord Stuart M. Speiser et al., The American Law of Torts § 9:23, at 1147 (1985) ("In considering the rescue doctrine and its ramifications, it must be always kept in mind that many--if, indeed not most--American courts regard it in terms of proximate causation."). This theory provides that one who, through negligence, jeopardizes the safety of another, may be held liable for injuries sustained by a "rescuer" who attempts to save the other from injury. See 57A AmJur2d Negligence § 689 (1989):

A rescuer's right of action against the initial negligent actor rests upon the view that one who imperils another at a place where there may be bystanders, must take into account the chance that some bystander will yield to the impulse to save life or even property from destruction and will attempt a rescue; negligence which creates peril invites rescue and, should the rescuer be hurt in the process, the tortfeasor will be held liable not only to the primary victim, but to the rescuer as well.

(Footnotes & citations omitted). Interestingly, the rescue doctrine can be traced to an 1822 case involving a crowd rushing to assist a descending balloonist. See W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 44, at 307 & n.63 (5th ed.1984) (citing Guille v. Swan, 19 Johns. 381 (N.Y.1822), and noting that since that case, the concept of the rescuer is "nothing abnormal").

¶9 Summers argues that Thompson cannot raise this theory in this appeal because he did not present it to the trial court. We disagree for two reasons: First, Thompson's complaint and his brief in opposition to the motion to dismiss adequately set forth his reliance on the rescue doctrine. 3 In his complaint, he stated:

Plaintiff perceived the situation to be an imminent threat to the general public on land and further perceived Defendant and Matt McCormick to be in imminent danger of severe physical harm or death. Plaintiff, in an attempt to prevent the same, went to the location of the balloon and grabbed on to it to help prevent it from drifting into the power lines.

(Emphasis added). In his brief, he reiterates the foregoing portion of his complaint, and adds: "Thompson responded to the emergency. In attempting to prevent an accident from happening, he grabbed the balloon to help prevent it from hitting the power lines."

¶10 In opposing the motion to dismiss, Thompson briefed the case of Olson v. Waitman, 88 S.D. 443, 221 N.W.2d 23 (S.D.1974), which is not precisely on point, but somewhat analogous to the rescue doctrine, and certainly a common law negligence case. That case held that the jury was properly instructed that a plaintiff may have been contributory negligent when she was pinned under a car after she got behind it to push it from a ditch. However, it was error to so instruct the jury on the plaintiff's second claim of negligence (she was severely burned after the defendant attempted to drive the car off of her). This court held that the plaintiff had two separate claims of negligence against the defendant and stated:

Regardless of how negligent the plaintiff may have been in getting into this predicament, she did not thereby give the defendant license to thereafter injure her with impunity.

Id. at 446, 221 N.W.2d at 25 (remanding for new trial with proper instructions).

¶11 Clearly, Thompson adequately outlined his claim even if he did not include the term "rescue doctrine". See, e.g., Thomas W. Garland, Inc. v. City of St. Louis, 596 F.2d 784, 787 (8th Cir.), cert. denied, 444 U.S. 899, 100 SCt 208, 62 L.Ed.2d 135 (1979) (stating that a complaint should not be dismissed because it does not state with precision all elements that give rise to a legal basis for recovery); accord Jackson Sawmill Co., Inc., v. United States, 580 F.2d 302, 306 (8th Cir.1978), cert. denied, 439 U.S. 1070, 99 S.Ct. 839, 59 L.Ed.2d 35 (1979).

¶12 The second reason we disagree with Summers' argument that Thompson cannot raise a legal theory for the first time on appeal concerns the nature of a Rule 12(b)(5) motion. It is settled law that the trial court is under a duty to determine if the plaintiff's allegations provide for relief on any possible theory, regardless of whether the plaintiff considered the theory. Schlosser, 506 N.W.2d at 418; Eide v. E.I. Du Pont De Nemours & Co., 1996 SD 11, p 7, 542 N.W.2d 769, 771; Federal Practice and Procedure § 1357; Seeley v. Brotherhood of Painters, 308 F.2d 52, 58 (5thCir.1962) ("[T]he theory of the...

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