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Daryl and Gina Bullar, Co-Administrators of the Estate of Jonathan Bullar v. Archway Skydiving Center

May 2, 2012

DARYL AND GINA BULLAR, CO-ADMINISTRATORS OF THE ESTATE OF JONATHAN BULLAR, PLAINTIFFS,
v.
ARCHWAY SKYDIVING CENTER, INC.,
JASON MARK, ANITA WUERTZ, SSK INDUSTRIES, INC.,
AIRTEC GMBH SAFETY SYSTEMS, VANDALIA PARK DISTRICT, VANDALIA MUNICIPAL AIRPORT, ARCHWAY EXPRESS, INC., AND ADRENALINE ) ALLEY, INC., DEFENDANTS.
SSK INDUSTRIES, INC., COUNTER CLAIMANT,
v.
DARYL AND GINA BULLAR, CO-ADMINISTRATORS OF THE ESTATE OF JONATHAN BULLAR, COUNTER DEFENDANTS.



The opinion of the court was delivered by: Michael J. Reagan United States District Judge

MEMORANDUM AND ORDER REAGAN, District Judge:

A. Introduction

Plaintiffs Daryl and Gina Bullar, Co-Administrators of the Estate of Jonathan Bullar, filed this action against Defendants seeking damages for Jonathan's death in a skydiving accident. Jonathan fell to his death on October 9, 2010, when his main and reserve parachutes failed to deploy.

The action now proceeds on Plaintiffs' Second Amended Complaint ("Complaint") (Doc. 76).

Pending before the Court is Vandalia Park District's motion to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. 76). Plaintiffs have filed their response (Doc. 84), so the motion is fully briefed and ready for disposition. The reasons the Court will deny the Park District's motion are twofold, as follows.

B. Applicable Legal Standards

The Park District seeks dismissal of the claims brought against it

under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. A 12(b)(6) motion challenges the sufficiency of the complaint to state a claim upon which relief can be granted. Hallinan v. Fraternal Order of Police Chicago Lodge 7, 570 F.3d 811, 820 (7th Cir.), cert. denied, 130 S. Ct. 749 (2009). The United States Supreme Court explained in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), that Rule 12(b)(6) dismissal is warranted if the complaint fails to set forth "enough facts to state a claim to relief that is plausible on its face." In making this assessment, the District Court accepts as true all well-pled factual allegations and draws all reasonable inferences in plaintiff's favor. Rujawitz v. Martin, 561 F.3d 685, 688 (7th Cir. 2009); Tricontinental Industries, Inc., Ltd. v. PriceWaterhouseCoopers, LLP, 475 F.3d 824, 833 (7th Cir.), cert. denied, 552 U.S. 824 (2007). See also Hemi Group, LLC v. City of New York, 130 S. Ct. 983, 986-87 (2010)("This case arises from a motion to dismiss, and so we accept as true the factual allegations in the ... amended complaint.").

Even though Bell Atlanticretooled federal pleading standards, notice pleading remains all that is required in a complaint. "A plaintiff still must provide only enough detail to give the defendant fair notice of what the claim is and the grounds upon which it rests and, through his allegations, show that it is plausible, rather than merely speculative, that he is entitled to relief." Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008). See also Erickson v. Pardus, 551 U.S. 89, 93 (2007)(Rule 8 requires only a short and plain statement of the claim showing that the pleader is entitled to relief; "Specific facts are not necessary; the statement need only 'give the defendant fair notice of what the claim is and the grounds upon which it rests.'"). But"surviving a Rule 12(b)(6) motion requires more than labels and conclusions;" the allegations must "raise a right to relief above the speculative level." Pugh v. Tribune Co., 521 F.3d 686, 699 (7th Cir. 2008). With these principles in mind, the Court turns to the Park District's motion to dismiss.

C. Discussion

The Park District asserts that this action should be dismissed as to the District because prior to his death, Jonathan signed two exculpatory agreements releasing it from any and all liability for injuries or damages arising out of parachuting activities.

As a general rule, a release is an affirmative defense which a plaintiff need not anticipate and refute in his complaint. See FED.R.CIV.P. 8(c)(1) (listing "release" as an affirmative defense);United States Gypsum Co. v. Indiana Gas Co., 350 F.3d 623, 626-28 (7th Cir. 2003). Accord Mosely, 434 F.3d at 533 (in discussing dismissal for failure to exhaust administrative remedies, Seventh Circuit noted that the plaintiff "had no obligation to allege facts negating an affirmative defense in her complaint").

As the Seventh Circuit Court of Appeals explained in Deckard v. General Motors Corp., 307 F.3d 556 (7th Cir. 2002), "A motion to dismiss was improper since release is an affirmative defense, . and the existence of a defense does not undercut the adequacy of the claim." 307 F.3d at 560, citing Fed. R. Civ. P. 8(c) and Gomez v. Toledo, 446 U.S. 635, 639-41 (1980).

Because a complaint need only narrate "an intelligible grievance that, if proved, shows a legal entitlement to relief," a complaint's failure to overcome defenses does not justify dismissal. United States Gypsum, 350 F.3d at 626. For this ...


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