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Aaron M. Tucker et al v. Cbs Radio Stations

April 29, 2011


APPEAL from a judgment of the Superior Court of Imperial County, Jeffrey B. Jones, Judge. (Super. Ct. No. ECU03948)

The opinion of the court was delivered by: McINTYRE, J.



In general, the rescue doctrine permits a rescuer to recover for injuries sustained while attempting to rescue a party placed in danger by the defendant's conduct. In this case we conclude that the rescuer cannot maintain negligence claims against defendant because he failed to establish that a duty of care was owed to the rescued party.

Aaron M. Tucker and his wife, Jeri Lyn Hawk-Tucker (together the Tuckers), appeal from a judgment dismissing CBS Radio Stations Inc., individually and doing business as KFRG (KFRG), Ron Martin (together with KFRG, CBS), and Jeanne Boardman (Boardman), doing business as Boardmanville Trading Post, from this action after the trial court sustained demurrers to their second amended complaint (SAC) without leave to amend. In the SAC, Aaron alleged causes of action for negligence against CBS and Boardman, and a cause of action for vicarious liability against Boardman, all stemming from an off-road vehicle event in the Imperial Sand Dunes. Jeri asserted a cause of action for loss of consortium against CBS and Boardman.

The Tuckers contend the trial court erred in sustaining the demurrers based on the finding that CBS and Boardman did not owe a duty of care to Aaron, or David Kendle, another defendant in this action. The Tuckers also contend they alleged sufficient facts for application of the rescue doctrine.

As discussed below, although we agree that the Tuckers stated sufficient facts for application of the rescue doctrine, we affirm the judgment because the Tuckers failed to establish the requisite duty of care for their negligence claims. Because the negligence claims fail as a matter of law, the remaining claims for vicarious liability and loss of consortium fail as well.


In accordance with the principles governing our review of a ruling sustaining a demurrer, the following factual recitation is taken from the allegations of the SAC. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.)

In January 2006, Aaron participated in an off-road vehicle "Poker Run" event in the Imperial Sand Dunes Recreational Area in Glamis, California. CBS organized the Poker Run, which consisted of an off-road vehicle riding event, raffle, free concert, and other entertainment activities. Martin, an employee of KFRG, was the promotions manager and coordinator for the event. Boardman agreed that CBS could stage aspects of the Poker Run at her property, Boardmanville. Boardman and CBS were joint venturers in regard to the Poker Run.

Individuals who fully participated in the Poker Run, including Aaron, paid a $50 entry fee, for which they received an event T-shirt, the right to win prizes and a raffle ticket. These individuals were also required to sign a release of liability form. Other persons, including Kendle, participated in the event but did not pay the entry free. The Poker Run riding event, free concert, and related activities were open to the public, but those who did not pay the entry free did not receive the event T-shirt and were not eligible for prizes.

The Poker Run riding event started at 9:00 a.m. at a base camp located on property partially owned by Boardman and partially owned by the Bureau of Land Management (BLM). Participants were given a playing card to have punched at five checkpoints. The participants with the best poker hands, based on the punched cards, won prizes. In order to qualify for the prizes, participants were required to return to the base camp by 3:00 p.m.

Four of the five checkpoints were located west of railroad tracks owned by Union Pacific Railroad Company (Union Pacific), on land owned by the BLM. The remaining checkpoint was at the base camp, located east of the railroad tracks. The base camp was also the location of the free concert and other entertainment activities. Participants were told to use a culvert, "Wash 10," for access from the west side of the railroad tracks to the base camp. Wash 10 is a tunnel owned by Union Pacific that is approximately six to eight feet wide and runs below the railroad tracks.

Between 2:30 p.m. and 3:00 p.m., Wash 10 became extremely congested as Poker Run riding participants tried to return to the base camp in time to qualify for the raffle and attend the free concert. As a result of the congestion, a number of off-road vehicle riders, including Aaron and Kendle, decided to cross over the railroad tracks rather than use Wash 10. After crossing over the railroad tracks, Aaron looked back and saw that Kendle and his vehicle were stuck on the tracks. Thereafter, Aaron, who was wearing a helmet and could not hear clearly over the noise of many off-road vehicles, heard someone say "train." Aaron then looked and saw a southbound train approaching. Concerned that Kendle might get hit by the train or that the train might hit the vehicle stuck on the railroad tracks, Aaron dismounted his vehicle and went to help Kendle. Kendle successfully got off of his off-road vehicle. Aaron and Kendle then proceeded to try to dislodge Kendle's vehicle from the tracks. ...

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