concurring and dissenting.
I concur with that portion of the majority’s opinion discussing RESTATEMENT (SECOND) OF TORTS §§ 413 and 414 (RESTATEMENT). I dissent however as to the portion of the opinion concerning whether a peculiar risk of physical harm should have been recognized by the state. I believe this is a factual question which should be resolved by a jury. Since a factual question remains to be decided, I would vacate the summary judgment and remand the case for trial.
RESTATEMENT § 413 comment b explains the concept of peculiar risk as follows:
This Section is concerned with special risks, peculiar to the work to be done, and arising out of its character, or out of the place where it is to be done, against which a reasonable man would recognize the necessity of taking special precautions. The situation is one in which a risk is created which is not a normal, routine matter of customary human activity, such as driving an automobile, but is rather a special danger to those in the vicinity, arising out of the particular situation created, and calling for special precautions. “Peculiar” does not mean that the risk must be one which is abnormal to the type of work to be done, or that it must be an abnormally great risk. It has reference only to a special, recognizable danger arising out of the work itself. [Emphasis added.]
My reading of the RESTATEMENT leads me to believe that “peculiar” risks are risks which fit somewhere in a continuum between “normal” risks (e.g., driving an automobile) and “abnormal” risks (e.g., blasting explosives in a city, dropping an object from an aircraft). The RESTATEMENT takes the position that some risks are so common that they are normal as a matter of law. The RESTATEMENT also takes the position that the question of whether an activity presents abnormally dangerous risks is a legal question. RESTATEMENT § 520, comment 1. While the RESTATEMENT § 520A lists risks to persons or property on the ground from falling aircraft as being abnormally dangerous, the RESTATEMENT specifically says that the risks to the crew of an aircraft from the aircraft’s falling are not abnormally dangerous. RESTATEMENT § 520A, comment e.
The RESTATEMENT does not take a position on the question of whether peculiar risk determinations are legal or factual. There is a split of authority on this issue. Cases holding that the question is a legal question for the court to decide are: Bosak v. Hutchinson, 422 Mich. 712, 375 N.W.2d 333 (1985); Kemp v. Bechtel Construction Co., 221 Mont. 519, 720 P.2d 270 (1986) (but dissent takes opposite position); Teichert & Son, Inc. v. Superior Court, 179 Cal.App.3d 657, 225 Cal.Rptr. 10 (3d Dist.1986) (failure to exercise due care in the operation of a motor vehicle) and Jimenez v. Pacific Western Const. Co., Inc., 185 Cal.App.3d 102, 229 Cal.Rptr. 575 (5th Dist., 1986) (particular risk existed as a matter of law based on precedent covering same facts). Cases holding that the question is a factual question for a jury to decide are: Donovan v. General Motors, 762 F.2d 701 (8th Cir.1985); Wilson v. Good Humor Corp., 757 F.2d 1293 (D.C.Cir., 1985); Caudel v. East Bay Municipal Utility Dist., 165 Cal.App.3d 1, 211 Cal.Rptr. 222 (1st Dist., 1985) and Elliott v. Public Service Co. of N.H., 128 N.H. 676, 517 A.2d 1185 (1986). Other courts have held that the question is ordinarily a factual question suitable for a jury, but if reasonable minds could not differ, the court should decide, as a matter of law. Hofstetter v. Union Electric Co., 724 S.W.2d 527 (Mo.Ct.App.1986); Marshall v. Southern Pennsylvania *179Transp. Auth., 587 F.Supp. 258 (E.D.Penn. 1984).
I recognize that our Supreme Court in Peone did hold, as a matter of law, that falling dead trees does not present a peculiar risk. I do not believe that this single determination, applicable directly to a particular type of work, should be applied across the board to all types of work being analyzed.
In Donovan v. General Motors, 762 F.2d 701 (8th Cir.1985), the Eighth Circuit Court of Appeals illustrated why the determination of whether particular work was inherently dangerous1 should be done by a jury. That case involved suit by an employee of an independent contractor against the employer of the contractor for damages the employee suffered when he fell 28 feet during the construction of a building. The trial court had ruled, as a matter of law, that constructing a building 28 feet tall was not inherently dangerous. In reversing the trial court’s judgment, the Court of Appeals held that the inquiry should focus on the specific work involved. The Court of Appeals ruled that the fact finder should determine whether working on a scaffold 28 feet above ground was inherently dangerous. The Court of Appeals determined that working 200 feet above the ground could be inherently dangerous. On the other hand, working one foot off the ground probably would not be inherently dangerous. The Court of Appeals concluded that the demarcation necessary to determine when work was inherently dangerous was for the jury. The court refused to draw that line at 28 feet.
I find the Eighth Circuit’s reasoning persuasive and applicable here. The risks to a helicopter pilot associated with flying over flat, sparsely populated land in good weather might be “normal.” On the other hand, the risks to a helicopter pilot associated with flying over mountainous, forested, and uninhabited land are markedly greater and might be “peculiar.” By changing the facts slightly, by focusing on the risks to persons on the ground instead of the pilot, the risks become “abnormally dangerous.” RESTATEMENT § 520A, comment e. While the facts of this case make it clear that the pilot did not face abnormally dangerous risks, I cannot say whether- the risks he faced were on the side of the line demarcating normal from peculiar risks. I believe this is a determination better suited to a jury than to a court on summary judgment.
Since a material factual issue remains to be decided, summary judgment was improper. I would vacate the judgment and remand the case for a trial on the factual issues.
. Although the Eighth Circuit used the term "inherently dangerous” instead of “peculiar risk" the analysis is applicable here. The Eighth Circuit was determining whether a jury question was presented by application of a Missouri variation of the peculiar risk rule of RESTATEMENT § 416.