By Doyice Cotten
Tricia Cahalane was seriously injured while performing a tandem skydiving activity. In the tandem skydive, she was attached to Marcus Silva, an employee, by a harness. During the skydive, Silva performed a “hook turn;” Hook turns were allowed at that time, but have since been prohibited. When she landed, she broke the femur in each leg. Prior to the skydive, she signed a waiver releasing Skydive Cape Cod from liability for any injury incurred. She was given the opportunity to avoid signing the waiver for an additional fee of $750, but chose not to do so (Cahalane v. Skydive Cape Cod, Inc, 2016 Mass. Super. LEXIS 189).
In her lawsuit Cahalane made several allegations. Defendants have moved for summary judgment based on the waiver signed by Ms. Cahalane. Ms. Cahalane stated that at the time she was reviewing these contracts, “her attention was divided between the waiver terms and an instructional video about skydiving.”
The pertinent language in the waiver provided that she and her family “assume the risk of serious injury and/or death and agree never to sue Skydive Cape Cod or any other parties involved.” She also acknowledged that she had “been adequately informed about [the] dangers and risks,” and that she was “sufficiently informed to sign agreements with which [she] willingly [gave] up important legal rights.” It also proved important that Cahalane agreed to indemnify the defendants “from all claims, judgments and costs . . . for any expenses whatsoever incurred in connection with any action brought by myself or brought on my behalf[.]”
Allegation I: Unenforceability of the waiver for want of procedural and substantive fairness
Ms. Cahalane claimed the waiver was against public policy because it was unconscionable.
1) Ms. Cahalane contends that the liability waiver is unconscionable because she was not provided the waiver until the day of her jump, and was given very little time to review it or ask questions.
2) She also claimed a vast disparity between her bargaining power and that of the defendants.
3) She claims Skydive misrepresented itself claiming it follows rules of the U.S. Parachuting Association (referring to the hook turn).
Response of the Court: Covenants not to sue are generally enforceable; exceptions are when they are procured by fraud, duress, or deceit or that violate public policy. 1) Receiving the waiver on the day of her jump does not make it procedurally unconscionable. The defendant knew in advance that skydiving involved a substantial risk of death or serious injury. 2) That there was no opportunity to negotiate is not enough to show a disparity in bargaining power; the court also stated
…even if Ms. Cahalane was not in a position to negotiate the terms of the liability waiver, and would have lost her deposit had she refused to assent to every term of the waiver, the principle of unconsionability is inapplicable here. That principle is reserved to prevent oppression and unfair surprise, not to disturb risk-allocation [*8] because of superior bargaining power.
It is interesting that the court did not mention the $750 option to avoid signing the waiver — mentioned by Tunkl as a factor regarding opportunity to bargain. The court ruled there was no admissible evidence presented that indicated fraud or difference in bargaining position.
Ms. Cahalane also contended that the liability waiver was unconscionable because the terms of the contract themselves are so substantively one-sided. The court disagreed citing case law and stating that her failure to read or understand the waiver is insufficient to void the waiver.
Allegation II: Gross Negligence
Ms Cahalane claimed the use of the hook turn and the fact that the wind speed for that day increased the danger involved in the skydive constituted gross negligence.
Response of the Court: The court stated that there is no state case law indicating that waivers may extend to gross negligence; it went on so say that plaintiff did not proffer sufficient evidence to support a claim of gross negligence, which involves a high degree of culpability and indifference to duty. Further, it stated
This Court has been hesitant to find gross negligence where the activity involved was inherently dangerous and where even ordinary negligence in such situations carried a substantial risk of injury.
Regarding the wind speed, the exact speed was not really established and the court felt that this was a judgment decision on the part of the instructor.
Allegation III: Strict Liability
Finally, Ms. Cahalane argues that skydiving subjects the defendants to strict liability for damages she incurred as a result of her participation because skydiving is an “abnormally dangerous activity.”
Response of the Court: The court stated that whether an activity is “abnormally dangerous” depends upon whether the risk involved is so unusual and extraordinary as to justify the imposition of strict liability. It cited California law which provides factors in determining if an activity is an “ultrahazardous activity.”
1) the extent to which the activity involves a high risk of harm;
2) the ability to eliminate a high degree of risk by the exercise of reasonable care; and
3) the extent to which the activity is not a matter of common usage.
The court concluded that since a skydiver can direct his or her path of travel and since skydiving is not an uncommon activity, there is no reason to require a strict liability standard.
The waiver released Skydive Cape Cod from liability even if the participant was injured by its negligence. Interestingly, the court stated that the waiver precluded any future legal argument that the waiver itself was unenforceable or against public policy. Additionally, the waiver provided that any “ambiguities be resolved in favor of Skydive Cape Cod, Inc.”
The court granted summary judgment to the defendant on all counts. In addition, the court also allowed Skydive Cape Cod’s counterclaims for indemnification of litigation costs and other damages.
Photo Credit: Thanks to Morgan Sherwood on Flickr.