Jesse M. Freeman and Kimberly M. Freeman v. Emerson Centre, Inc. D/B/A Soaring Spirits Zipline and Richard W. Emerson

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.

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