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Miller v. Westcor Limited Partnership12/5/1991
We are faced with an issue not before raised in Arizona: Whether a landowner can be held liable for the acts of an independent contractor, when the independent contractor negligently conducts a fireworks display. We must also decide whether parents of an injured child may claim loss of consortium when the child is severely injured, but not catastrophically so.
Elizabeth Miller and William Latham filed suit against Westcor Limited Partnership (Westcor) and Atlas Enterprises (Atlas) for injuries suffered during a fireworks display at the Flagstaff Mall. The trial court granted partial summary judgment in favor of Westcor, ruling that Westcor was not vicariously liable for the negligence of its independent contractor, Atlas Enterprises. The trial court also granted Westcor's motion in limine precluding evidence of appellants' claim for loss of consortium. We reverse as to both issues.
BACKGROUND
On July 4, 1987, Elizabeth Miller and her daughter, Michelle Latham, attended a fireworks display at the Flagstaff Mall in Flagstaff, Arizona. Westcor, the owner of the mall, contracted with Atlas Enterprises to conduct the fireworks exhibition. The contract provided that Atlas would supply all fireworks and materials and a trained master pyrotechnician, that employees of Atlas would be covered by worker's compensation and that Atlas would procure an insurance policy providing coverage for Atlas and for the sponsors and committees connected with the fireworks display. Westcor was responsible for crowd control and agreed to provide four laborers to assist the master pyrotechnician.
The firework shells used in the display ranged in size from two inches to twelve inches in diameter. The shells traveled at a speed of approximately 176 feet per second and exploded at a distance that was dependent upon their size. A six-inch mortar shell traveled six hundred feet before exploding and a ten-inch mortar shell traveled one thousand feet before exploding. A six-inch shell had a spread of four hundred feet in diameter upon explosion. Several hundred fireworks shells were set to be used during the display.
The fireworks exhibition began at about 9:00 p.m. Approximately ninety percent through the show, a firework shell misfired and exploded while in its launch tube. The explosion destroyed the launch tube and apparently knocked several mortar tubes out of their positions. One of the shells launched directly toward the crowd. The shell exploded on the ground injuring Michelle and Elizabeth as well as several other individuals.
Michelle was the most severely injured of the plaintiffs. She suffered third-degree burns on both shoulder blade areas, her right elbow and ear, and her entire buttocks.
She also suffered second-degree burns to her right flank.
The plaintiffs filed suit on October 23, 1987, naming as defendants Westcor and Atlas among others. The suit alleged in count one negligence of Westcor in failing to provide plaintiffs with a reasonably safe place from which to view the display, in count two the negligence of Atlas in hiring, training, and supervising its agents and/or employees, in count three the vicarious liability of Westcor for the acts of Atlas, and, in count four strict liability of Westcor and Atlas for undertaking an abnormally dangerous activity.
Westcor moved for partial summary judgment on counts three and four of the complaint. Westcor contended that it was not automatically liable for the plaintiffs' injuries upon a finding that Atlas was negligent because Atlas was an independent contractor, not an employee or agent. Westcor also contende
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