Judgment rendered October 1, 2025. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 56,464-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
JESSE M. FREEMAN AND Plaintiffs-Appellants KIMBERLY M. FREEMAN
versus
EMERSON CENTRE, INC. Defendants-Appellees D/B/A SOARING SPIRITS ZIPLINE AND RICHARD W. EMERSON
Appealed from the Third Judicial District Court for the Parish of Lincoln, Louisiana Trial Court No. 61,720
Honorable Thomas Wynn Rogers, Judge
LUNEAU & BECK, LLC Counsel for Appellants By: W. Jay Luneau
HUDSON, POTTS & BERNSTEIN, LLP Counsel for Appellees By: Gordon L. James
Before COX, ROBINSON, and ELLENDER, JJ. COX, J.
This appeal arises from the Third Judicial District Court, Lincoln
Parish. Appellants appeal the district court’s ruling denying their petition
for damages. For the following reasons, we affirm the district court’s ruling.
FACTS
This action arises out of injuries Jesse Freeman (“Jesse”) sustained on
July 3, 2020. Jesse and his wife, Kimberly (collectively, “Appellants”), filed
a petition for damages on June 18, 2021, naming Emerson Centre Inc., d/b/a
Soaring Spirits Zipline (“Soaring Spirits”) and the sole owner and operator,
Richard Emerson (“Emerson”), as defendants.
Appellants alleged that while riding on the advanced zipline course,
Jesse struck a tree and injured his foot. Appellants asserted that the incident
was caused by the fault and negligence of the defendants, independently and
through the acts and/or omissions of their employees, which consisted of the
following:
A. Constructing a zipline course in a manner which it knew or should have known was defective and unreasonably dangerous;
B. Failing to implement and/or have in effect the proper procedures, protocols[,] and guidelines to ensure that the zipline course could be safely utilized by its patrons;
C. Failing to properly maintain the zipline course and to keep it free from unreasonably dangerous hazards;
D. Failing to properly inspect the zipline course to make sure that it could be safely used by its patrons; and
E. Failing to warn patrons as to the location of and how to avoid hazards on the zipline course about which it knew or should have known.
In answer to the petition, defendants denied any negligence or liability for
the injuries Jesse sustained and instead posited that Jesse’s own actions caused his accident and resulting injuries. A bench trial was held on July 1,
2024, wherein the following testimony was presented:
First, Emerson testified that he started operations for Soaring Spirits
in 2016, when he designed and constructed 19 zipline courses consisting of
beginner, intermediate, and advanced courses. Emerson explained that he
designed each course as he envisioned it and without developing a blueprint
prior to construction. Emerson admitted that while he did not consult with
any experts or engineers during construction, he did obtain information from
various internet sources concerning ziplines and zipline construction, as well
as a consultation with Zip Lining Gear, a company that sells ziplining gear
and equipment.
Emerson explained that he constructed the ziplines to extend from tree
to tree, that each cable was connected by clamps to secure the cable, and that
platforms were located at the starting and ending point for each zipline. He
further explained that in installing the zipline, he removed hundreds of trees,
and the remaining trees were left to provide shade and add to the experience
and aesthetic value of the course. Emerson stated that, from his research, he
found that there needed to be a minimum of “six to eight feet” of clearance
on either side of a zipline cable. Emerson admitted he measured the distance
between the trees and the zipline by sight because he felt he was capable of
making an accurate assessment of distance based on his years of playing golf
and estimating distances by sight.
Emerson acknowledged that there were two trees on either side of the
zipline course where Jesse injured his right foot after he struck a tree on one
of the advanced courses. Emerson stated that while he did not consider the
distance a patron could swing out during the descent, he emphasized that his 2 employees were trained to advise each guest to apply their brakes and/or
stick their legs in front of them to prevent swinging or swaying, and in
general, a patron who had difficulty stopping themselves from swaying or
swinging would not have moved on to the advanced course.
In describing the zipline cable and platform where Jesse was injured,
Emerson explained that while the platform encompassed two trees, the cable
was only connected to one tree; as such, a patron would have to stand to the
left to be centered under the cable to prevent swaying. Emerson stated that
even if a patron was not lined up directly under the zipline cable when they
took off from the platform, it would not cause them to swing because such
an action would require more inertia; however, it could cause the patron to
sway, which would be acceptable because it would not reach out past the
six- or eight-foot limit. Emerson stated that to swing out that far, one would
likely have to create the extra force by jumping, which he was informed
Jesse had done.
Emerson admitted he did not register the business with the State Fire
Marshal or have the ziplines inspected after construction was completed. He
stated that while he researched the matter, he did not find any requirement to
either have an inspection, register the course, obtain safety approval, or have
general liability insurance prior to opening the business. Emerson testified
that some of his employees were minors, but they were trained by him and
other employees who had certifications in zipline safety and training.
On cross-examination, Emerson stated that a crucial aspect of zipline
safety is braking. Counsel for defendants then read a statement from the
“Complete Guide to Zipline Safety and Braking Systems,” which provided
in part, “[c]lear the zipline avenue of obstructions at least seven feet below 3 and five feet on both sides of the zipline.” Emerson confirmed this
information and testified that his ziplines were free of obstructions from six
to eight feet on either side. Emerson stated that patrons sign a waiver and
are instructed on how to use the zipline and brakes prior to starting the
beginner’s course, which they must pass before continuing to another
course. Emerson stated that he and his guides stressed the importance of
braking for safety purposes, and that he installed “stop blocks” if a patron
failed to use their brakes so that they would not injure themselves. Emerson
estimated that over 1,000 patrons used the ziplines, but Jesse was the only
one who was ever injured while using this particular zipline.
Mackenzie Hedgepeth (“Hedgepeth”), a former employee, testified
that she was hired as a zipline guide in 2019 at 13 years old. She explained
that as a guide, she was responsible for taking patrons through each zipline
course, securing patrons into harnesses, and providing safety and braking
instructions for each zipline. Hedgepeth stated that she was one of the two
guides for Jesse’s group. She stated that because Jesse completed both the
beginner and intermediate courses without issue, she determined he could
proceed to the advanced course.
In describing the zipline where Jesse injured himself, Hedgepeth
testified that a patron would have to be on the left-hand side of the platform
before taking off to be centered under the cable. Hedgepeth explained that if
a patron took off and was not centered, it could cause them to sway.1
Hedgepeth stated that when she secured Jesse to the cable, she stood to his
1 Counsel for the Appellants then questioned, “[A]nd that’s what happened to [Jesse], right, he was swinging from side to side before his accident?” Hedgepeth answered in the affirmative; however, this Court notes that Hedgepeth previously explained that Jesse was centered when he left the platform. 4 left where a rail was located, but stated Jesse was still centered under the
cable. Hedgepeth testified she informed Jesse of the braking points on the
course before he left the platform, the first of which was the tree he struck.
Hedgepeth explained that when Jesse left the platform, he swayed
drastically, and she yelled for him to “pull down, pull down” on his brake.
Hedgepeth testified that she witnessed Jesse hit the tree to the left of
the zipline, which she estimated to be a little under 10 feet away from the
cable. Hedgepeth acknowledged that in her deposition, she estimated that
the tree was approximately four to five feet away from the zipline cable but
stated that she initially underestimated the distance. However, Hedgepeth
later stated that if a patron’s legs were stuck out straight, the tree would be
approximately four to five feet away during the descent. Hedgepeth stated
that while Jesse never said he was going to swing out, he made it sound as if
he was going to do something.
On cross-examination, Hedgepeth reiterated that when Jesse left the
platform, he swung drastically, as far as the length of the lanyard that
connected the patron to the cable, until he struck the tree. Hedgepeth stated
that on a prior course, Jesse bounced on the line, which caused her to inform
the patrons again that when they left the platform they should use their
brakes because the advanced course was faster. She stated that she explicitly
instructed him to use his brakes on the advanced course; however, she
noticed that Jesse never slowed down, as if he had not used the brakes.
Next, Desarae Fraizer (“Fraizer”),2 another former employee, testified
she was with Hedgepeth the day Jesse was injured and that she worked as
2 Abigail Frazier, another employee, also testified that she couldn’t recall what instructions were given to Jesse and did not remember if anyone told him to brake before 5 the catcher for Jesse’s group. She explained that a catcher receives the
patron after they descend the zipline, unhooks them, clears them out of the
path of the next zipliner, and serves as an example to the patron of how to
properly descend. Fraizer stated that as catcher, she was the first person to
descend and was already at the bottom platform before Jesse took off, so she
did not see where Jesse was positioned when he left the platform. Fraizer
testified that for the advanced zipline, it was required that patrons brake at
the beginning and then brake at the later brake points as well. Frazier stated
she saw Jesse hit the tree on his left, and that someone yelled for him to
brake.
Next, Jesse testified that when he and his family arrived at the zipline
course, they were given safety instructions and warnings against engaging in
horseplay. Jesse stated that the instructors emphasized that they should
descend in a straight manner and gave instructions on how to use the brakes.
However, Jesse could not recall anyone instructing him to brake should he
sway or swing while on the zipline. Jesse then recalled that he was informed
that he should stick his legs out and brake to stop rotating, which he
experienced on other courses. Concerning the zipline where he was injured,
Jesse stated that one of the guides informed him that this was a faster course,
and that he would need to apply the brake just before he reached the tree he
ultimately collided with.
Jesse explained that when he left the platform, the cable was over his
left shoulder, and he was instructed to sit and let the line guide him. Jesse
he struck the tree. She recalled that when Jesse left the platform he “kinda went off like swung off to the left a little bit,” which caused him to swing the entire way down. She also stated that it did not appear he ever slowed down.
6 denied that he was instructed to brake immediately and stated that as soon as
he left the platform, his body “corrected hard to the left,” which caused him
to involuntarily swing in that direction. Jesse explained that he swung three
times, first to the left, then right, and on the third swing, he went back to the
left and his right heel struck a tree located on the left side of the cable. He
stated that the impact caused him to lose momentum and spin until he was
assisted down. On cross-examination, Jesse stated he had been on a zipline
prior to this experience, and that he thought some swinging on the ziplines
added to the enjoyment of the ride.
Kimberly also testified that during the zipline course, the instructors
emphasized using the brakes. Kimberly testified that they were instructed to
keep their feet in front of them if they started to turn or swing. For the
advanced zipline, Kimberly stated that the guides’ instructions focused more
on braking, but no additional instructions were given concerning turning or
swinging. Kimberly testified that she saw Jesse swinging but was not
concerned until Jesse struck the tree, which caused him to spin and slow
down.
Finally, Phillip Beard (“Beard”), an expert in structural engineering,
testified that this was his first time providing an opinion on ziplines and he
had not done research on ziplines prior to this case. He stated that he read
the Louisiana State Fire Marshal regulations but did not find any
specifications for ziplines. Beard stated he performed an onsite inspection
of the zipline course but admitted that the course had been shut down since
December 2020, and that the launching platforms and ziplines had been
damaged due to weather. Beard admitted that because of these conditions, it
was difficult to determine the location where the zipline in question 7 extended between the trees because there was little left save for holes in the
trees where the platforms had once been attached. Beard stated that he used
Jesse’s height and estimated how far the zipline cable could swing from side
to side. Beard testified that the only way Jesse could have struck the tree
was if the zipline cable was less than seven feet from the tree. Beard opined
that, from a safety perspective, there was no structural reason for the tree to
have been in close proximity to the zipline cable, and it would have been
better if the tree had been removed.
On cross-examination, Beard admitted that he did not measure the
distance between the two trees where the zipline in question was located or
estimate where the zipline was located in relation to either tree. Beard also
acknowledged that at least two internet publications indicated that, in regard
to zipline safety, obstructions should have a clearance of at least seven feet
below the zipline avenue, and at least five feet of clearance on either side of
the zipline cable. He further agreed that Emerson’s clearance of at least six
to eight feet on either side of the zipline cable was correct. On re-cross
examination, Beard described the tree Jesse struck as an actual hazard and
stated that Emerson should have considered removing the tree if it was a
potential hazard.
At the close of testimony, the district court requested post-trial briefs,
and the matter was submitted for consideration and taken under advisement.
On October 31, 2024, the district court issued its ruling and written reasons,
wherein it dismissed Soaring Spirits as a defendant for lack of evidence
establishing ownership of the zipline course, and ruled in favor of Emerson,
dismissing the Appellants’ claims. This appeal followed.
8 APPLICABLE LAW
As a matter of law, the owner or custodian of a thing is answerable for
damage occasioned by its ruin, vice, or defect, only upon a showing that he
knew or, in the exercise of reasonable care, should have known of the ruin,
vice, or defect which caused the damage, that the damage could have been
prevented by the exercise of reasonable care, and that he failed to exercise
such reasonable care. La. C.C. art. 2317.1.
To recover damages caused by a defective thing, the plaintiff must be
able to prove that (1) the thing was in the defendant’s custody, (2) the thing
contained a defect which presented an unreasonable risk of harm to others,
(3) the defective thing caused the damage, and finally that (4) the defendant
knew or should have known of the defect. Wheat v. State Farm Fire & Cas.
Co., 55,712, (La. App. 2 Cir. 7/17/24), 399 So. 3d 509, writ denied, 24-
01012 (LA. 11/14/24), 395 So. 3d 1186, citing Perkins v. Air U Shreveport
LLC, 52,093 (La. App. 2 Cir. 5/23/18), 249 So. 3d 187, and citations therein.
The mere fact that an accident occurred because of some vice or defect does
not elevate the condition of the thing to that of an unreasonably dangerous
defect. Id.
A “defect” in a thing, for which one having custody of the thing may
be liable for the damages caused, is a condition or imperfection that poses an
unreasonable risk of injury to persons exercising ordinary care and prudence.
Id. To determine whether liability exists under art. 2317.1, courts use a
duty-risk analysis, under which a plaintiff must prove five separate elements:
(1) the defendant had a duty to conform his conduct to a specific standard
(the duty element), (2) the defendant’s conduct failed to conform to the
appropriate standard (the breach element), (3) the defendant’s substandard 9 conduct was a cause-in-fact of the plaintiff's injuries (the cause-in-fact
element), (4) the defendant’s substandard conduct was a legal cause of the
plaintiff's injuries (the scope of duty element), and (5) proof of actual
damages (the damages element). Id.; Farrell v. Circle K Stores, Inc., 22-
00849 (La. 3/17/23), 359 So. 3d 467. Failure to prove any one of these
elements by a preponderance of the evidence is fatal to the plaintiff’s claim.
Id.
Whether there was a breach of the duty owed is a question of fact or a
mixed question of law and fact. Id. Louisiana courts apply the risk/utility
balancing test to make this determination, wherein the Supreme Court
synthesized the risk/utility balancing test to a consideration of four pertinent
factors: (1) the utility of the complained-of condition; (2) the likelihood and
magnitude of harm, including the obviousness and apparentness of the
condition; (3) the cost of preventing the harm; and (4) the nature of the
plaintiff’s activities in terms of social utility or whether the activities were
dangerous by nature. Id.
The trier of fact determines whether a defect presents an unreasonable
risk of harm and that determination is reviewed under the manifest error
standard. Guerrero v. Brookshire Grocery Co., 49,707 (La. App. 2 Cir.
4/29/15), 165 So. 3d 1092. The trier of fact is owed great deference in its
allocation of fault and may not be reversed unless clearly wrong or
manifestly erroneous. Id.
10 DISCUSSION
Appellants have raised three assignments of error on appeal.
Assignment of Error 1: Defect in the zipline course
By their first assignment of error, Appellants argue the district court
erred in finding that they did not satisfy their burden of proof in showing
that the zipline contained a defect, i.e., that the location of the tree created an
unreasonable risk of harm.
Specifically, Appellants argue that, regarding the utility of the object,
the tree Jesse struck “served no utility purpose for the zipline” because “no
zipline had to be connected to the tree for [the zipline] to function properly.”
Appellants highlight that Beard specifically testified about the importance of
having a clear field on either side of a zipline, and Emerson testified that one
of the reasons he did not remove the tree was for aesthetics, rather than out
of necessity for the zipline to function.
With respect to the second factor, the likelihood and magnitude of the
harm, Appellants argue Emerson should have known that if a tree were left
too close to the zipline, a rider could potentially strike the tree, resulting in
injuries. Appellants assert that Emerson, in measuring the distance of the
tree to the zipline by sight alone, failed to accurately determine whether a
patron could swing out and strike the tree as done in this case. Appellants
note again that Beard referred to the tree Jesse struck as a “real hazard” and
that potential hazards, such as swinging or swaying into a tree, were a safety
factor Emerson was aware of and should have investigated.
Appellants further argue that the cost of removing the tree was
relatively low in comparison to the damages Jesse sustained. Finally, in
discussing the nature of the activities, Appellants argue Jesse used the 11 zipline for its intended purpose, and no evidence was presented to show
Jesse’s own actions caused the accident.
In addressing the first factor, this Court agrees with the Appellants
that the utility of this particular tree, insofar as structure and maintenance of
the course is concerned, is relatively minimal. Specifically, we note that
Emerson testified that in constructing the ziplines, he removed hundreds of
trees, and any remaining trees not connected to a cable or platform provided
shade or added to the experience and aesthetics of the course. Given this, it
is arguable that the utility of this single tree which purpose is primarily
limited to shade and aesthetics, is low considering it is located among
several other trees which equally contribute to the same intended purpose.
Therefore, we cannot say that the utility of this tree outweighs its potential
harm to others. However, the inquiry balancing the risk/utility test does not
end at this factor alone.
The remaining factors (likelihood and magnitude of the harm, cost of
preventing the harm, and the nature of the plaintiff’s activities) will be
summarily addressed. Appellants assert that the location of the tree Jesse
struck, in relation to the zipline cable, presented an unreasonable risk of
harm to patrons who could potentially swing out, if not properly lined up
under the cable at the launching platform, and strike the tree. However, as
the district court noted in its written reasons, there was insufficient evidence
presented at trial to support the Appellants’ assertion.
Specifically, we find that the record, including the testimony from the
Appellants’ own expert witness, reflects that the distance from the tree to the
zipline could not be accurately determined to make a definitive finding that
the tree’s proximity to the zipline presented an unreasonable risk of harm. 12 Beard stated that the State Fire Marshal does not have regulations regarding
zipline standards, and Emerson did not seek approval or have an inspection
from the State Fire Marshal to determine if any obstructions were too close
to the zipline cable. Instead, the only benchmark presented to the district
court to determine whether the location of the tree to the zipline cable was
defective was Emerson’s testimony that there should be at least a six-to-
eight-foot clearance on either side of the zipline. While Beard testified that
his own research revealed that there should be at least a seven-foot clearance
on either side of a zipline cable, he nevertheless admitted that at least two
articles on ziplines that he relied on to produce his report for this matter did
not require a seven-foot clearance, but five feet instead.
Although Emerson testified that he measured the distances between
trees to cables to ensure there was a six-to-eight-foot clearance, he did so by
sight alone. While Beard stated Jesse would not have struck the tree unless
it had been at least seven feet away from the zipline, we note that Beard did
not and could not obtain an accurate distance between the tree and the cable.
While Beard conducted an on-site inspection of the course, we note that the
course had been closed since December 2020, and according to Beard’s own
testimony, a windstorm “heavily damaged” the course such that some
platforms were torn down, and the zipline where Jesse was injured was no
longer present.
Accordingly, Beard was unable to measure the distance from the tree
to the zipline cable and admitted he did not know where the zipline had been
located to make this determination. Instead, Beard stated he estimated the
distance by using Jesse’s height, and an estimation of how far the lanyard,
13 which hooked Jesse’s harness to the cable, could potentially swing out.
Specifically, Beard stated:
Well[,] I tried to get a standard that I could work from and I did that by reasoning out by just basically just sitting down as if I were in a harness hooked up and ready to go onto the zipline traverse. And—and what I did is I lifted my feet out away from my body and then measured the distance from my backbone to the end of my feet and it was thirty-six inches. Now Mr. Freeman’s a little shorter than I am so his probably would be less than thirty-six inches. And so[,] with the center of mass being close to your tailbone, it varies depending on your weight, then your—your body’s gonna react according to the center of mass.
And so as he described as he was going down he—he—his feet began to turn to the left and then he probably was swinging as it’s been established that there was swinging to some degree. But I—I present this—this is the thing right here. If in fact he was swinging, say, two feet which would be a pretty good swing for a—for that mechanism, it would swing out maybe that far and come back again and maybe swing the other direction or like someone used the term “pendulum” but that would be close to it. But if it went two feet plus thirty—six, that’s five feet. If he’d of been in the seven-foot limit, then the accident wouldn’t have happened.
As noted by the district court, Beard’s methodology was based on an
estimation. Without more accurate calculations, or specifications as to the
location of the zipline, or even information as to how long the lanyard that
was attached to the zipline cable was, we agree with the district court that
the evidence presented was too speculative to say that Appellants satisfied
their burden of proof to show that the location of the tree was defective.
Moreover, the district court was in the best position to hear and assess
the credibility of all witnesses and testimony presented, and the district court
in this case specifically found that because Beard “made no attempt to
actually measure the distance from the tree to a point where one could
estimate where the line was located,” it questioned his method of analysis
14 and found him unconvincing. We, therefore, find that this assignment of
error lacks merit.
Assignment of Error 2: Knowledge of the defect
By their second assignment of error on appeal, Appellants argue that
the district court erred in determining that the Appellees did not have actual
or constructive knowledge of the defect or condition of the zipline.
Appellants argue that constructive knowledge can be found if the
conditions that caused the injury existed for such a period of time that those
responsible, by the exercise of ordinary care and diligence, must have known
of their existence in general and could have guarded the public from injury.
Appellants assert that because the advanced course was completed in 2018,
Emerson, who personally constructed several of the courses, had two years
to correct the defect and should have known there was a possibility that a
rider could strike a tree if they did not leave the platform properly.
The concept of constructive knowledge imposes a reasonable duty to
discover apparent defects in things under the defendant’s garde. Ladner v.
Trinity Group Ltd., 45,937 (La. App. 2 Cir. 2/16/11), 57 So. 3d 1197, writ
denied, 11-0580 (La. 4/29/11), 62 So. 3d 115. As the district court noted,
there was insufficient evidence to show Emerson knew there was a defect in
the location of this tree to this zipline cable. Appellants assert in brief that if
Emerson complied with safety regulations or registered his course with the
State Fire Marshal, then the defect would have been discovered.
However, we note that Appellants produced no safety standards or
regulations to show that regular inspections should have been conducted or
how often. In fact, Beard, the Appellants’ expert, acknowledged there was
no requirement for zipline owners to register with the State Fire Marshal. 15 Likewise, there was no evidence Emerson violated any safety code or
regulation. Even assuming arguendo that the lack of inspection constituted
a lack of reasonable care to discover the defect, we cannot say, based on the
record before us, that the alleged defect was apparent such that Emerson
would have discovered it.
Here, Emerson stated that since he opened the zipline course, he had
thousands of patrons attend the course, and there had been no accidents on
this particular line either prior to Jesse’s injury or in the four to five months
after the incident occurred but before the course closed. While Appellants
assert Emerson knew that a patron would have to stand on the left side of the
platform before leaving to prevent swaying or swinging, Hedgepeth testified
that even though she stood to Jesse’s left, he was still lined under the cable
when he left the platform.
With no evidence of prior incidents, complaints, or violations of
safety regulations, the Appellants could not show that Emerson knew or
should have known of the alleged defect.
Assignment of Error 3: Res Ipsa Loquitor
By their final assignment of error, Appellants argue that the trial court
erred in finding that they did not meet the criteria to satisfy res ipsa loquitur.
In Linnear v. CenterPoint Energy Entex/Reliant Energy, 06-3030
(La.9/5/07), 966 So. 2d 36, the Louisiana Supreme Court explained the
proper application of the doctrine of res ipsa loquitur:
The doctrine of res ipsa loquitur applies in cases where the plaintiff uses circumstantial evidence alone to prove negligence by the defendant[.] The doctrine, meaning “the thing speaks for itself,” permits the inference of negligence on the part of the defendant from the circumstances surrounding the injury[.] [T]he doctrine applies when three criteria are met. First, the injury is the kind which ordinarily does not occur in the absence 16 of negligence. While the plaintiff does not have to eliminate all other possible causes, he must present evidence indicating at least a probability that the accident would not have occurred absent negligence. Second, the evidence must sufficiently eliminate other more probable causes of the injury, such as the conduct of the plaintiff or a third person. The circumstances must warrant an inference of negligence. Third, the negligence of the defendant must fall within the scope of his duty to plaintiff. This may, but not necessarily, be proved in instances where the defendant had exclusive control of the thing that caused the injury.
The trial judge determines whether reasonable minds could differ on the
presence of all three criteria. If reasonable minds could not conclude that all
three criteria are satisfied, then the legal requirements for the use of res ipsa
loquitur are not met. Perkins, supra.
In this case, the district court considered that Jesse’s injury could not
have happened in the absence of a defect in the zipline. However, given the
totality of the evidence and testimony presented, the district court rightfully
considered the equally probable cause that Jesse’s own actions caused his
injuries. We agree. Emerson testified that he and the other instructors
stressed the importance of braking, especially if one should sway during the
zipline ride. Jesse’s wife, Kimberly, also admitted that their group was told
to use their brakes and keep their feet in front of them if they started to turn
or sway. Jesse, who was fully aware of these instructions and safety guards,
completed several beginner and intermediate courses and at least two other
advanced ziplines without incident.
However, testimony reflected that when Jesse left the platform, he did
not appear to have employed his brakes at any point. Jesse testified that he
swung violently from left to right when he left the platform because one of
his guides stood to his left, where he should have been. However, his guide,
Hedgepeth, testified that while she stood to Jesse’s left, there was plenty of 17 room on the platform for both of them, and Jesse was still lined underneath
the cable. Moreover, despite the instructions to brake in the event of turning
or swaying, Hedgepeth stated that it appeared that Jesse never slowed, as if
he had not employed his brakes. Appellants never asserted that Jesse used
his brakes but they were defective or failed to stop his swinging.
Given the testimony presented, we agree with the district court’s
analysis concerning this matter. Therefore, we find the doctrine of res ipsa
loquitur is not applicable in this matter.
CONCLUSION
For the reasons stated herein, we affirm the district court’s ruling
denying the Appellants’ petition for damages. Costs of this appeal are
assessed to the Appellants.
AFFIRMED.