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Filed 2/10/05; pub. order 2/23/05 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

ELLEN DIXON et al.,

Plaintiffs
and
Respondents,

A100310
v.

CITY OF LIVERMORE,
(Alameda
County

Super. Ct. No. 771269-8)

Defendant and Appellant.

The City of Livermore (the City) appeals after the trial court found it vicariously
liable for injuries suffered by plaintiffs in a helicopter crash at an air show held at the
Livermore Municipal Airport (Airport), and managed by Wings for Charity, Inc.
(Wings). We conclude there is no substantial evidence to support the trial court's
conclusion that Wings's negligent acts or omissions caused plaintiffs' injuries.
Accordingly, there is no basis to hold the City vicariously liable, and we reverse the
judgment.
I. BACKGROUND

Plaintiff Ellen Dixon and her husband, David Dixon, attended an air show at the
Airport on September 10, 1995. They took a helicopter ride piloted by James Crist
(Crist). The helicopter crashed during the ride, killing David Dixon and seriously
injuring Ellen Dixon.
A.
Pretrial and Trial Proceedings

Ellen Dixon, her son Joseph Dock, and David Dixon's son David Dixon, Jr.,
(plaintiffs) filed a claim against the City. They claimed the City had participated in the
air show by contributing use of Airport grounds and facilities, and of various City

1

employees, such that the City had joint-ventured the air show and its activities, and that it
had negligently reviewed the qualifications and safety of Tri-Valley Helicopters (Tri-
Valley) and Wings's air show activities.

Plaintiffs then filed this action against the City, Wings, Tri-Valley, Crist,
Greenbelt Aviation (Greenbelt), Rodger Ainsworth (Ainsworth), and other defendants,
including the helicopter manufacturer, alleging causes of action for negligence, strict
products liability, negligent products liability, negligent infliction of emotional distress,
wrongful death, and loss of consortium.1 A jury found Crist and Tri-Valley negligent,
and deadlocked on whether the City and Wings were negligent. It found the other
defendants not to be negligent. The jury awarded $11,009,000 in damages, and assigned
Crist 60 percent of the fault, and Tri-Valley 40 percent.

Crist moved for a mistrial, and the City joined in the motion as it related to the
amount of damages. The trial court denied the motion, instead granting plaintiffs' motion
to limit the retrial to the issues of the liability of the City and Wings and the
apportionment of fault.

Plaintiffs settled their claims against Wings, Tri-Valley, Crist, and other
defendants. The City was the sole defendant at the second trial. The parties waived a
jury, and the unresolved issues with respect to the City were tried by the court.

After the retrial, the trial court issued a proposed statement of decision concluding
that Wings was an independent contractor of the City; the City and Wings were engaged
in a joint enterprise; Wings was negligent in its management of the helicopter operation;
and the City was vicariously liable for Wings's negligence.

The City objected to the proposed statement of decision. It cited the general rule
that the employer of an independent contractor is not liable for physical harm caused to
others by the acts of the contractor. (See Kinney v. CSB Construction, Inc. (2001) 87

1 The complaint alleged Wings was "a California non-profit corporation,
organized for the purpose of staging and operating the annual Wings for Charity Airshow
. . . ."

2

Cal.App.4th 28, 32.)2 It also argued that the evidence did not support a finding that the
City and Wings were involved in a joint enterprise, and that Wings could not be both an
independent contractor of the City and a member of a joint enterprise with the City.
B.
The Statement of Decision

The trial court then issued its statement of decision.

1. Trial Court's Factual Findings

According to the statement of decision, the City owned and operated the Airport.
Between 1969 and 1983, a series of organizations participated with the City in putting on
air shows. In 1983 or 1984, the City's director of public works, Dan Lee, recommended
that the City create a charitable organization for the purpose of participating in the
management of the air show, and the City council approved the suggestion. With input
from the City attorney, Lee drafted bylaws for the organization, Wings. Lee became
Wings's first vice-chairperson. The City believed the creation of Wings was the best way
to meet the objectives of raising money for charity, providing family entertainment,
having volunteer involvement, increasing public awareness of and support for the
Airport, providing funding for capital improvements at the Airport, and assuring
continuation of the Airport.

The City and Wings entered into an "Agreement for Livermore Air Show
Management" (the Agreement). According to the agreement, Wings would provide
overall management of the air show and would coordinate its decisions with the City's
designated representatives.

A week before the air show, a Federal Aviation Administration (FAA) employee
met with the City, Wings, and other representatives. At the meeting, it was decided that

2 As noted in Kinney, this rule is subject to many exceptions. (Kinney v. CSB
Construction, Inc., supra, 87 Cal.App.4th at p. 32 & fn. 2.) Pursuant to Government
Code section 815.4, a public entity is liable for injuries caused by the torts of its
independent contractor to the same extent as it would be liable if the public entity were a
private person. As noted post, the trial court ultimately chose not to rest the City's
liability on the theory that Wings was an independent contractor. We have no occasion to
consider here the applicability of any of the exceptions to the general rule of nonliability
for the acts of an independent contractor.

3

helicopter flights would be at an altitude of approximately 300 feet. Wings did not object
to this decision.

In order for low-level aerobatics to occur over an airport, the FAA must waive
certain federal regulations. Wings sought and received a waiver for the air show. The
waiver did not include helicopter rides for hire. In an advisory relating to waiver for
aviation events, the FAA recommended that the manager of an air show verify the
qualifications of all participants at an air show, including participants in rides for hire.3

Tri-Valley was a tenant of the Airport, allowed under the terms of its agreement
with the Airport to offer scenic helicopter rides to the public. Although the Airport was
closed to ordinary traffic during the air show, Wings and the City allowed Tri-Valley to
operate its rides for hire as part of the air show. Wings was aware that Tri-Valley was a
tenant at the Airport and had provided rides at previous air shows. There was no
evidence that Wings took any other affirmative action to verify the qualifications of Tri-
Valley as an operator of helicopter rides to the public, to verify the qualifications and
experience of Tri-Valley pilots, or to verify that only Tri-Valley equipment and personnel
would be used in the helicopter rides.4

Tri-Valley's helicopter had mechanical problems in the week before the air show,
and Tri-Valley contacted Ainsworth of Greenbelt to arrange a back-up helicopter.
Ainsworth agreed to supply an Enstrom helicopter, pilots, and a fuel truck to Tri-Valley.
The pilots were to be responsible for fueling the helicopter.

Crist was one of Ainsworth's pilots. He was an FAA-certified commercial pilot, a
fact confirmed by an FAA representative either immediately before or during the air

3 The FAA circular advisory stated: "The primary safety check-and-balance used
by the aviation event organizer is the establishment of the credentials of each participant
and his or her aircraft, confirmation of the participants' experience in an aviation event
environment, and provision to each flying participant with the proper information
regarding operations at that specific event."

4 Although not spelled out in detail in the court's statement of decision, it is
undisputed that the FAA announced it would be in charge of the helicopter ride program
and that it undertook to verify the credentials of the pilots and the airworthiness of the
helicopters.

4

show. He had been trained by Tim Wells, a friend who was another Ainsworth pilot.
Wells testified that during his helicopter training, Crist had demonstrated difficulty in
executing "auto rotation" maneuvers, which are necessary to land a helicopter when it
loses power. In fact, Crist had never autorotated a helicopter to the ground during
training. Crist's training was primarily on a different model helicopter, which had both a
fuel light and a warning siren for slow rotations; the Enstrom had neither. Crist's
logbook demonstrated the number of hours he had flown helicopters, and specifically
how many hours he had flown an Enstrom.5

The City's regular fuel island, which met the requirements of the Uniform Fire
Code, was closed during the air show.6 The City also had four fuel trucks used for
remote fueling; they had pumps, safety equipment, and trained personnel in accordance
with the Uniform Fire Code. During the air show, at Tri-Valley's request, the City
pumped fuel from a City fuel truck onto a truck operated by Greenbelt, which had a fuel
tank mounted on the truck bed. The fuel was then pumped from the Greenbelt truck into
the Enstrom helicopter. Wings did not check to see if Greenbelt's truck had proper
pumps, safety equipment, or fuel cells, as required by the Fire Code. A City employee
authorized this method of fueling, but no City personnel inspected the fuel site. The day
before the accident, the helicopters were being "hot fueled," or fueled with the engine
running; this is considered an unsafe practice and is not an accurate way to measure fuel.
No fuel logs were kept of the pumping of fuel into the Enstrom.

The Enstrom had two fuel tanks. They could not both be fully fueled during the
ride program due to the combined weight of the fuel and the passengers. As a result, Tri-
Valley and Crist decided to fill only one tank; after it was filled, the fuel would level out

5 Although the statement of decision did not provide the numbers, Crist's logbook
indicated that he had close to 1,000 hours of total helicopter flying experience, and had
frequently flown an Enstrom in the months preceding the accident. Plaintiff presented
evidence at trial suggesting that the number of hours Crist had reported in the Enstrom
may have been inaccurate.

6 The parties do not cite to the relevant provisions of the Uniform Fire Code. We
draw our discussion of its requirements from the trial court's statement of decision.

5

between the two tanks. The night before the accident, one tank of the Enstrom was filled.
The engine was not running at the time. The helicopter was not fueled again before the
Dixons' flight.

On the morning of September 10, 1995, another Ainsworth pilot used the Enstrom,
and then turned it over to Crist to fly. There was no evidence Crist inspected the amount
of fuel in the helicopter.

That morning, the Dixons attended the air show and purchased a five-minute
scenic helicopter ride from Tri-Valley. Crist was the pilot. He flew the helicopter at an
altitude of approximately 300 feet, over inhospitable terrain. The helicopter ran out of
fuel. Crist could not land safely, and the helicopter crashed.

2. Trial Court's Conclusions Regarding Liability

Plaintiffs had contended the City was directly liable for plaintiffs' injuries because
of its failure to adhere to legal requirements for proper handling of fuel. The trial court
rejected this basis for liability, concluding the evidence did not demonstrate a nexus
between plaintiffs' injuries and the purpose of the statutes at issue. Similarly, the trial
court found the City was not vicariously liable for the torts of Tri-Valley and Crist in
their roles as independent contractors, concluding the evidence did not show that
plaintiffs' injuries were caused by any breach of the City's mandatory duties relating to
fuel-handling.

The trial court did, however, find the City vicariously liable for the negligence of
Wings. It concluded that Wings was "more than an independent contractor and that the
nature of the agency relationship created by the City with Wings resulted in a master-
servant relationship akin to a typical employer-employee relationship." The court then
found that "Wings, in its role as servant of the City, breached duties owed to plaintiffs to
adequately investigate and supervise the operations of the helicopter rides offered by
[Tri-Valley] at the Airshow." The court found that Wings failed to reasonably supervise
the helicopter operation, and that this conclusion was "buttress[ed]" by the following
conduct: (1) Wings failed to comply with the Uniform Fire Code, particularly with
respect to safe fueling practices; (2) Wings failed to determine if Greenbelt's truck had

6

proper pumps, safety equipment, or fuel cells; (3) Wings failed to observe that on the day
before the accident, helicopters were being "hot fueled"; (4) Wings failed to inspect the
landing site to ensure it complied with legal requirements; (5) Wings did not include the
helicopter ride program in the FAA waiver; (6) Wings did not sufficiently evaluate the
qualifications of the pilots in the ride program; (7) Wings did not ensure that the ride was
flown at a high enough altitude and flown over more hospitable terrain. Furthermore,
Wings's failure to ensure that Tri-Valley did not use subcontracted aircraft or pilots
without Wings's knowledge showed a "dangerously laissez-faire approach" to the
helicopter rides. The totality of these circumstances, according to the trial court, created
"an overwhelming impression of negligent management by Wings." The trial court
concluded Wings's failure to ensure that rides were offered by experienced pilots using
the safest helicopters was a cause of the accident. The court found Crist 40 percent at
fault to plaintiffs, Tri-Valley 30 percent, and Wings 30 percent. The City and Wings
were found jointly and severally liable for 30 percent of plaintiffs' noneconomic damages
and for all of their economic damages.

The trial court entered judgment against the City in the amount of $6,172,000.
This appeal ensued.
II. DISCUSSION
A.
The Claim Adequately Informed the City of the Basis of Liability

The City contends plaintiffs' tort claim did not adequately inform the City of the
basis of liability the trial court ultimately adopted, that the City was vicariously liable for
the act of Wings as its servant or employee. Government Code7 section 945.4 requires a
plaintiff to present a claim before bringing suit against a public entity for damages arising
out of an alleged tort. (Fall River Joint Unified School Dist. v. Superior Court (1988)
206 Cal.App.3d 431, 434 (Fall River).) The claim must include a general description of
the injuries and the names of the public employees who caused them. (Ibid.; � 910,
subds. (d), (e).) "Furthermore, ` "If a plaintiff relies on more than one theory of recovery
against the [governmental agency], each cause of action must have been reflected in a

7 All undesignated statutory references are to the Government Code.

7

timely claim. In addition, the factual circumstances set forth in the written claim must
correspond with the facts alleged in the complaint . . . ." ' " (Fall River, at p. 434.)

The City does not contend the complaint alleged causes of action not adequately
pled in the tort claim; rather, it complains that the trial court adopted a theory of liability
that was not fairly included in the claim. The tort claim did not allege that Wings was a
servant or employee of the City. While the complaint contains a general allegation that
each of the defendants "was an agent, servant, employee, representative and/or joint
venturer of each of the remaining defendants,"8 it does not appear that plaintiffs relied in
the litigation on the theory that the City was liable for the actions of Wings as its servant
or employee.9 However, even assuming that section 945.4 prohibits the trial court (as
opposed to plaintiffs) from relying on a theory not pled in the tort claim, we reject the
City's contention that the tort claim did not put it on notice that plaintiffs sought to hold it
vicariously liable for Wings's negligence.

Where a complaint is "predicated on the same fundamental facts" as those in the
claim (White v. Superior Court (1990) 225 Cal.App.3d 1505, 1511), courts have
concluded the claim did not violate section 945.4. In White, for instance, the plaintiff
submitted a claim to a city stating a police officer had falsely arrested her and beaten her.
She then filed a complaint alleging causes of action for negligent hiring, training and
retention and intentional failure to train, supervise, and discipline. (White, at p. 1507.)
The city contended these causes of action were not fairly reflected in the claim filed with
the city. (Id. at p. 1508.) The court rejected this contention because both the complaint
and the claim were predicated on the same fundamental facts--the officer's alleged
mistreatment of the plaintiff. (Id. at p. 1511.)

8 Thus, the City's statement in its reply brief that "[o]ne searches respondents'
complaint in vain for even the slightest hint of a master/servant allegation" is incorrect.

9 Plaintiffs' rebuttal trial brief on the issue of joint enterprise and proposed
statement of decision at the second trial relied on the theory that the City and Wings were
engaged in a joint enterprise or agency, as well as on the theory that the City was liable
for its own negligence.

8

The court in Blair v. Superior Court (1990) 218 Cal.App.3d 221, reached a similar
conclusion. There, the claim alleged the plaintiff was injured when the pickup he was
riding in went out of control on an icy road that the defendant had negligently failed to
maintain and sand. (Id. at p. 223.) The complaint included allegations that the roadway
lacked guard rails or warning signs. (Id. at p. 224.) The court concluded the claim and
the complaint were "premised on essentially the same foundation, that because of its
negligent construction or maintenance, the highway at the scene of the accident
constituted a dangerous condition of public property." (Id. at p. 226.) Similarly, in
Stevenson v. San Francisco Housing Authority (1994) 24 Cal.App.4th 269, 276 and
footnote 2, the plaintiff had alleged in her claim that her father fell in his apartment
during an earthquake and was not discovered until seven days later, that he subsequently
died, and that the defendant " `negligently owned, maintained, managed and operated the
premises . . . .' " Her complaint alleged negligent failure to disclose latent defects in the
public building in which the father had lived, breach of the defendant's duty to inspect
the premises for safety, and negligent failure to inspect the building. (Id. at p. 276.) The
court stated the additional allegations in the complaint "were not based on a different set
of facts from those set out in the claim and [were] fairly included within the facts first
noticed in the claim." (Id. at p. 278.)

Most recently, our Supreme Court has upheld the rule of White and Blair in
Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34
Cal.4th 441. There, the plaintiff's notice of claim against a public agency stated he had
been wrongfully terminated for supporting another employee's sexual harassment
complaints. The claim identified the instigator of the termination, and stated the date on
which the termination occurred. (Id. at p. 444.) The claim was denied, and the plaintiff
brought an action against the public agency, which he later sought to amend to allege he
had been terminated in violation of public policy on three specific grounds. (Ibid.) Our
Supreme Court concluded the claim adequately informed the agency of the nature of the
claim, stating, "A complaint's fuller exposition of the factual basis beyond that given in
the claim is not fatal, so long as the complaint is not based on an `entirely different set of

9

facts.' (Stevenson v. San Francisco Housing Authority [supra, 24 Cal.App.4th at p.
278].) Only where there has been a `complete shift in allegations, usually involving an
effort to premise civil liability on acts or omissions committed at different times or by
different persons than those described in the claim' have courts generally found the
complaint barred. (Blair v. Superior Court, supra, [218 Cal.App.3d] at p. 226.)" (Id. at
p. 447.) Stockett's additional theories were based on the same factual foundation as those
in the claim, and the claim provided sufficient information to allow the public agency to
conduct an investigation into the merits of the claim. (Id. at pp. 448-450.) In reaching
this conclusion, the court distinguished various cases in which the complaint alleged
liability on an entirely different factual basis from that in the tort claim. (Id. at p. 448 &
fn. 4, discussing Fall River, supra, 206 Cal.App.3d at pp. 433-434 [notice of claim stated
injury was caused by school's negligent maintenance of door, but complaint additionally
alleged the school negligently failed to supervise students], Lopez v. Southern Cal.
Permanente Medical Group (1981) 115 Cal.App.3d 673, 676-677 [claim alleging state
negligently issued driver's license to person despite epileptic condition insufficient to
allow amended complaint alleging state neglected to suspend or revoke license despite
failure to comply with accident reporting and financial responsibility laws], and Donohue
v. State of California (1986) 178 Cal.App.3d 795, 803-804 [claim alleging Department of
Motor Vehicles negligently allowed uninsured motorist to take driving test did not
provide notice of complaint's allegation that department negligently supervised and
instructed driver during exam].)

We conclude the claim adequately informed the City that plaintiffs sought to hold
it vicariously liable for the negligence of Wings. The claim alleged the City had "joint-
ventured" the "Wings for Charity Airshow." This allegation would most naturally be
understood to mean the City and Wings were joint-venturers in the air show. " `[T]he
negligence of one joint venturer or of his employees acting in connection with the joint
venture is imputed to the other joint venturers.' " (County of Riverside v. Loma Linda
University (1981) 118 Cal.App.3d 300, 312, fn. 3.) The claim also informed the City that
the qualifications, competency, and safety of Tri-Valley would be at issue, although this

10

allegation was stated in terms of the City's negligence. In the circumstances, the City
was not held liable on a different factual basis from that alleged in the claim.10
B.
There Is No Substantial Evidence That Wings's Omissions Caused Plaintiffs'
Injuries

The trial court concluded that Wings was negligent in its management of the air
show, and that this negligence was a cause of plaintiffs' injuries. Wings is not liable for
plaintiffs' injuries unless it owed plaintiffs a legal duty of care, it breached that duty, and
the breach was a substantial factor in causing plaintiffs' injuries. (See Saelzler v.
Advanced Group 400 (2001) 25 Cal.4th 763, 772 (Saelzler).) "[A]bstract negligence,"
without proof of a causal connection to the injury suffered, will not support a finding of
liability. (Noble v. Los Angeles Dodgers, Inc. (1985) 168 Cal.App.3d 912, 918 (Noble);
see also Saelzler, supra, 25 Cal.4th at p. 773.) Proof of causation must be by substantial
evidence, "and evidence `which leaves the determination of these essential facts in the
realm of mere speculation and conjecture is insufficient.' [Citations.]" (Leslie G. v.
Perry & Associates (1996) 43 Cal.App.4th 472, 484 (Leslie G.).) In Saelzler, the court
concluded summary judgment was properly granted to a property owner on whose
property the plaintiff had been assaulted, where the evidence showed merely a
"speculative possibility" that additional security would have prevented the assault.
(Saelzler, supra, 25 Cal.4th at pp. 766-767, 781.)

The trial court concluded that Wings committed the following acts or omissions:
failure to comply with the Uniform Fire Code's requirements for fueling practices; failure
to determine if Greenbelt's equipment complied with the Fire Code; failure to observe
that helicopters were being hot fueled the day before the accident; failure to inspect the
landing site; failure to include the helicopter ride program in the FAA waiver; failure to
evaluate the pilots' qualifications; and failure to ensure that the ride was at a sufficient
altitude and flown over more hospitable terrain. The court went on to state: "The Court

10 As noted above, it appears that the parties never relied on or briefed the
employee/servant theory that the trial court ultimately relied on in finding the City liable.
Because the City does not challenge the trial court's ruling on this ground, we do not
consider the propriety of such a procedure.

11

finds that Wings did, in fact, fail to reasonably supervise the helicopter operation, and
that the enumerated conduct buttresses this conclusion. One can imagine a number of
different scenarios that might have resulted in injury to Airshow attendees, arising out of
some or all of the above failures. These acts/omissions must be reviewed alongside the
fact that [Tri-Valley] was free to sub-contract out its helicopter concession without any
oversight from Wings. Even though the principals of [Tri-Valley] remained on site and
in control of the concession, the ability of [Tri-Valley] to use aircraft and pilots about
which Wings had neither sought nor received any prior knowledge or notice establishes a
dangerously laissez-faire approach by Wings with respect to the operation of the
helicopter rides at the Airshow. The totality of these circumstances create[s] an
overwhelming impression of negligent management by Wings."

As we have discussed, however, there must be evidence of more than "abstract
negligence"; we cannot affirm the judgment unless there is substantial evidence of a
causal connection between Wings's negligent acts or omissions and plaintiffs' injuries.
(See Noble, supra, 168 Cal.App.3d at p. 918; Leslie G., supra, 43 Cal.App.4th at p. 484.)
We first note that of the seven instances the trial court provided of Wings's omissions,
five of them (failure to comply with the Fire Code's fueling practices, failure to
determine whether Greenbelt's truck complied with the Fire Code, failure to observe hot
fueling the day before the accident, failure to inspect the landing site, and failure to
include the helicopter ride in the FAA waiver) have no causal connection whatsoever to
the accident.11 Indeed the trial court made no attempt to draw such a connection, instead
linking Wings's "negligent management" to the accident as follows: "The cause of the
accident . . . was the helicopter, while being piloted by an inexperienced pilot, running
out of fuel over inhospitable terrain. There is a reasonable inference that the accident
would not have occurred if (1) the helicopter did not run out of fuel; (2) the flight did not
occur over inhospitable terrain; or (3) the helicopter was being piloted by a more

11 As noted ante, the trial court found that the evidence did not demonstrate a
nexus between plaintiffs' injuries and the purpose of the enactments at issue. Plaintiffs
do not challenge this finding on appeal.

12

experienced pilot. If the Wings [sic] had acted affirmatively to insure, or even made an
inquiry to verify, that the public was being offered rides by experienced pilots using the
safest helicopters, the likelihood of plaintiffs['] suffering the injuries in fact suffered
would have been reasonably and prudently minimized." The question before the trial
court, however, was not merely whether there was a "reasonable inference" that the
accident would not have occurred but for these three factors, nor whether the risk of
injury could have been "prudently minimized," but whether plaintiffs had proven by a
preponderance of the evidence that an act or omission of Wings was negligent and a
substantial factor in bringing about plaintiffs' injuries.

Our review of the record persuades us that there is no substantial evidence to
support a finding that the three factors enumerated by the trial court either caused the
accident or were due to the negligence of Wings.12

First, as to the helicopter running out of fuel, there is no evidence indicating that
Wings was, or should have been, responsible for making sure the helicopter was
adequately fueled. Even plaintiffs' expert, James Cheatham (Cheatham), testified that the
fuel level is the sole responsibility of the pilot.

Second, as to the flight's occurring over inhospitable terrain, there is no evidence
that any other route would have been safer or that the choice of route was negligent.
Cheatham testified that the area where the ride was conducted contained safe areas for
autorotation landings, but that Crist did not choose one of those areas. A defense expert,
Terry Blumenthal, testified that Crist made a turn into inhospitable terrain, but that any
route would have some inhospitable terrain, whether houses, factories, or quarries, and
that the route the flight took was "as good a route as they could have chosen." While
there is evidence that Crist chose an unsafe spot to land the helicopter, the record does

12 Our task in reviewing the record was made far more difficult by plaintiffs'
failure to provide any citations to the evidence in the record underlying the trial court's
findings.

13

not indicate that the route as a whole was unsafe or that Wings was negligent in allowing
the helicopter rides along that route.13

Third, the trial court concluded the accident might not have occurred if the
helicopter had been flown by a more experienced pilot using a safer helicopter. There are
two reasons why this cannot support liability. First, the issue of negligent entrustment
was decided in favor of the City and Wings before the second trial began. The complaint
contained a third cause of action against Wings and the City for negligent entrustment.
This cause of action alleged that defendants knew or should have known that Crist was
incompetent and unfit to perform the duties for which he was employed, that they
breached their duty of care by "negligently hiring and supervising defendant Crist
without investigating his qualification to fly the F28C, and by failing to disqualify him
from participating as an Enstrom F28C helicopter pilot in the Airshow." The City won
summary adjudication on this cause of action, and won a directed verdict on the "issue[]
of negligent entrustment." Wings also won a directed verdict on the third cause of action
and on the "issue[] of negligent entrustment." Thus, both the City and Wings were found
not to be liable for hiring and supervising Crist without investigating his qualifications
and for failing to disqualify him from flying at the air show.14

In any case, there is no substantial evidence that Wings was negligent in failing to
check Crist's qualifications or in refusing to allow the Enstrom to be used; nor is there
substantial evidence that these omissions caused plaintiffs' injuries.15 It is undisputed the

13 In fact, Chris MacDonald, a partner in Tri-Valley, testified that the route and the
altitude were determined by a meeting with an FAA representative.

14 In the colloquy leading up to the trial court's ruling on Wings's motion for
directed verdict on the third cause of action, counsel for plaintiffs articulated his
understanding that the directed verdict would be narrowly based on the fact that Wings
did not hire Crist. Counsel's observations notwithstanding, it is clear that the gravamen
of the third cause of action was Wings's and the City's alleged failure to scrutinize
Crist's qualifications and alleged failure to remove him as a pilot for the helicopter rides.

15 We agree with the City that the question of whether it is the custom and practice
of air show operators to demand higher qualifications than those required by the FAA is a
matter that could only be decided based on expert testimony as to the standard of care in
the industry. (See Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal.3d 689,

14

FAA informed Wings that the FAA would be responsible for the helicopter program.
There is also uncontradicted evidence that the FAA checked to ensure the helicopter
pilots were properly qualified, and that the Enstrom was airworthy and met FAA
requirements.16 Further, plaintiffs presented no expert testimony that it was the standard
of care in the air show industry to demand that pilots have higher qualifications than
those required by the FAA. It is true that plaintiffs' expert, Cheatham, testified as the
owner of a helicopter company that he would not hire a pilot with Crist's experience, that
Crist was not competent to operate a helicopter for hire, and that Tri-Valley's overall
operation was incompetent. However, the issue here is not whether Crist's employer was
negligent in hiring him (indeed, the jury in the first trial found that Crist's employer,
Ainsworth, was not negligent); the issue is whether it was negligent for Wings not to
check--and reject--a pilot who had been approved by the FAA. We see no basis to
conclude Wings was negligent for failing to second-guess the FAA's judgment on
whether the pilots were qualified.

More importantly, the evidence does not support a conclusion that a prudent air
show operator would not have allowed Crist to fly if it had checked his qualifications.
Plaintiffs' expert, Skip Lehman (Lehman), himself an aviation event producer, testified
that air show producers should not just confirm the pilots have commercial licenses, but
should also check their credentials and reputations. Lehman stated that he looks for
"[r]eliability, safety, and experience." Crist had a commercial pilot's license. His
logbook showed nearly 1,000 hours of helicopter flying time, and frequent flights in an

702 ["[i]f the matter in issue is one within the knowledge of experts only and not within
the common knowledge of laymen, it is necessary for the plaintiff to introduce expert
opinion evidence in order to establish a prima facie case"].)

16 The jury in the first trial found that Enstrom was not negligent and that there
was no defect in the design of the Enstrom helicopter. It also found that Ainsworth, the
owner of Greenbelt, which supplied the helicopter, was not negligent. It would be
difficult to square a conclusion that the Enstrom was not defective and neither its
manufacturer nor its supplier was negligent, with one that Wings was negligent for
allowing the Enstrom to be used.

15

Enstrom in the months preceding the accident. That amount far exceeded the 150 hours
required for a commercial pilot certificate with a helicopter-class rating. (14 C.F.R. �
61.129(c) (2004).) There was no evidence that, prior to the accident at issue, Crist had
ever had an enforcement action brought against him by the FAA, or that Crist had ever
been involved in any accidents while piloting a helicopter. Crist also testified that he had
previous experience flying passengers for hire in the 1994 Livermore air show. Although
Crist's flight instructor testified that Crist had some difficulty executing autorotations
during his training, there is no evidence indicating that air show operators, in addition to
checking the pilots' "[r]eliability, safety, and experience," should also locate and
interview the flight instructors of each of the pilots to determine what problems they had
encountered during their training. In fact, Lehman agreed that "it's nothing more than
pure speculation that if Wings for Charity or the City of Livermore had played a more
active role in managing the operation of this airshow that the accident would or would
not have occurred," and that there was no "basis to determine whether or not the accident
could have been avoided had the City and Wings actually done anything about the
helicopter ride."
Plaintiffs
cite
White v. Inbound Aviation (1999) 69 Cal.App.4th 910 to support
their argument that Wings cannot rely solely on Crist's licensure to establish his
competence to fly the helicopter at the air show. In White, the court concluded a
company that rented an airplane to a licensed pilot could be held liable for negligent
entrustment of an airplane to a new pilot where the company had not performed a "high
altitude checkout" with the pilot, although it knew he would be flying into the South Lake
Tahoe airport, a challenging high altitude airport surrounded by mountains. (Id. at pp.
916-918, 920-923.) White does not assist plaintiffs. First, the issue in White is liability
for negligent entrustment, an issue that we have already concluded has been eliminated
from this case. (Id. at p. 920.) Second, the evidence in White indicated that the South
Lake Tahoe airport was known to be "at best, a challenging airport and, at worst, a
dangerous airport," and that it required special skills to take off and land there safely.
(Id. at p. 922.) The record here does not indicate that a pilot would require special skills

16

or training to fly the helicopter rides. This case, rather, is closer to Lindstrom v. Hertz
Corp. (2000) 81 Cal.App.4th 644, 650, which concluded that a car rental agency was not
negligent in renting a car to a licensed driver where there was no evidence the agency
knew or should have known the driver was incompetent or that the agency had
knowledge of any circumstances that would put it on notice that he was incompetent.

We agree with plaintiffs' expert Lehman that it is speculative to conclude that the
accident would not have occurred if Wings had acted differently in managing the air
show. Neither the trial court nor we may engage in such speculation. (See Saelzler,
supra, 25 Cal.4th at p. 781.) The record does not contain substantial evidence that
plaintiffs' injuries were caused by the negligent acts or omissions of Wings.
Accordingly, there is no basis to hold the City vicariously liable for Wings's negligence,
and we must reverse the judgment.17
III. DISPOSITION

The judgment is reversed. The trial court is directed to enter judgment in favor of
the City.

________________________

RIVERA, J.

We concur:

___________________________
KAY, P.J.

___________________________
REARDON, J.

17 Having concluded the record does not support the trial court's finding of
liability on the part of Wings, we have no occasion to address the City's claim that it
would not be vicariously liable for any acts or omissions of Wings, and we express no
views on this question.

17

Trial Court:
Superior Court of Alameda County

Trial Judge:
Honorable Demetrios Agretelis

Honorable Bonnie Sabraw

Attorney for Appellant:
Ralph S. LaMontagne, Jr.

Eric A. Amador

Shaw, Terhar & LaMontagne

Attorney for Respondent:
Ellen Dixon and Joesph Dock
Terry O'Reilly
Gary
L.
Simms

O'Reilly, Collins & Danko

David Dixon, Jr.
Thomas Marc Litton

Frederick J. Geonetta
Litton
&
Geonetta

A100310

18

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

ELLEN DIXON et al.,

Plaintiffs
and
Respondents,

A100310
v.

CITY OF LIVERMORE,
(Alameda
County

Super. Ct. No. 771269-8)

Defendant and Appellant.

BY THE COURT:

The written opinion which was filed on February 10, 2005, has been certified for
publication pursuant to rule 976(b) of the California Rules of Court, and it is ordered
published in the official reports.
DATED: _____________________

___________________________________P.J.