Franzek v. Calspan Corp.

• Decision Date: 23 December 1980
• Citation: 78 A.D.2d 134,434 N.Y.S.2d 288
• Parties: Michael J. FRANZEK, Appellant, v. CALSPAN CORPORATION, Appellant, Niagara Gorge River Trips, Inc., and George Butterfield, Respondents. NIAGARA GORGE RIVER TRIPS, INC., and George D. Butterfield, Third-Party Plaintiffs-Respondents, v. ZODIAC, S. A., Third-Party Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 288

434 N.Y.S.2d 288

78 A.D.2d 134

Michael J. FRANZEK, Appellant, v. CALSPAN CORPORATION, Appellant, Niagara Gorge River Trips, Inc., and George Butterfield, Respondents.

NIAGARA GORGE RIVER TRIPS, INC., and George D. Butterfield, Third-Party Plaintiffs-Respondents, v. ZODIAC, S. A., Third-Party Defendant-Appellant.

Supreme Court, Appellate Division, Fourth Department.

Dec. 23, 1980.

Grossman, Levine & Civiletto, Niagara Falls, for appellant, Franzek; Stanley Grossman, Niagara Falls, of counsel.

O'Shea, Adamson, Reynolds & Napier, Buffalo, for appellant, Calspan; John E. Adamson, Jr., Buffalo, of counsel.

Hill, Rivkins, Carey, Loesberg & O'Brien, New York City, for third-party defendant-appellant, Zodiac, S. A.; Bruce J. Hector, New York City, of counsel.

Harrison & Gruber, Buffalo, for respondents; Fenton F. Harrison, Buffalo, of counsel.

Before CARDAMONE, J. P., and SIMONS, HANCOCK, CALLAHAN and MOULE, JJ.

CARDAMONE, Justice Presiding:

Before embarking on a hazardous trip with defendant, plaintiff signed a release waiving all claims caused by defendant's negligence which he might have against defendant. We hold that release to be valid. The more difficult question is does the release insulate this defendant from the claims for contribution made by the other defendants involved. In our view it does not.

This litigation arises as a result of an attempt to traverse the "white water" of the lower Niagara River on a rubber raft. Twenty-nine persons were aboard on this experimental trip to determine the feasibility of offering regular passenger trips to the general public. During the journey the raft capsized. Three persons died and a number including plaintiff, Michael J. Franzek, were injured. Franzek sued Niagara Gorge River Trips, Inc. (Niagara) and its president, George Butterfield, who were the raft trip operators. He also sued Calspan Corporation (Calspan) an engineering firm located in Buffalo which allegedly designed, tested and evaluated the raft.

In the first and third causes of action asserted in his complaint, Franzek alleges that Niagara and Butterfield negligently caused the accident; specifically that Butterfield was negligent in offering the ride to the public, and plaintiff in particular, when he knew or should have known that the raft was unsafe and unsuitable as a means to carry passengers upon the lower Niagara River. The second cause of action, asserted against Calspan, alleges that Calspan failed to test the raft properly and negligently recommended to Niagara and Butterfield that it was suitable for use on the Niagara River.

Both defendants raised as affirmative defenses plaintiff's assumption of the risk and his waiver of liability. At the same time and in the same pleading they asserted cross-claims against each other, seeking indemnification or contribution. Both defendants also impleaded Zodiac, S. A. (Zodiac) a French concern which manufactured the raft; and Zodiac raised the same affirmative defenses and cross-claimed against both defendants.

At this pleading stage of the litigation Niagara and Butterfield moved for summary judgment dismissing plaintiff's complaint on the ground that the release signed by plaintiff bars him from instituting an action against them. Special Term agreed with this contention and granted the motion. The evidence before Special Term consisted of depositions of the various parties and a copy of the release containing the waiver. These reveal that plaintiff, who has a B. A. in Journalism, learned of the raft ride from the local newspaper. He claims that he was given no instructions prior to boarding the raft and only after he boarded was he handed the waiver, which he signed without reading. According to the deposition of George Butterfield, all persons boarding the raft were required to sign the release in order to go on the trip; and that in the substantial interval of time while passengers were on the dock prior to embarkation each was required to execute the release before boarding. The release, after reciting the dangerous nature of the trip and representations as to the undersigned's age, condition and state of mind, provides:

"The undersigned understands and expressly assumes all the dangers of the trip.

The undersigned waives all claims arising out of the Trip, whether caused by negligence breach of contract or otherwise, and whether for bodily injury, property damage or loss or otherwise, which he may ever have against Niagara Gorge River Trips, Inc., its successors and assigns, and its officers, directors, shareholders, employees and agents, and their heirs, executors and administrators".

Agreements exculpating a party from the consequences of its own negligence are disfavored and subject to close judicial scrutiny. Although such agreements are enforceable, their validity is measured by an exacting standard. Unless the intention of the parties is expressed in clear and "unequivocal terms" a negligent party will not be relieved of liability (Gross v. Sweet, 49 N.Y.2d 102, 107, 110, 424 N.Y.S.2d 365, 400 N.E.2d 306; Van Dyke Prods. v. Eastman Kodak Co., 12 N.Y.2d 301, 305, 239 N.Y.S.2d 337, 189 N.E.2d 693; Ciofalo v. Vic Tanney Gyms, 10 N.Y.2d 294, 297, 220 N.Y.S.2d 962, 177 N.E.2d 925). Broad exculpatory provisions which do not specifically refer to the negligence of a party, do not insulate that party from liability (Gross v. Sweet, supra, 49 N.Y.2d pp. 107-109, 424 N.Y.S.2d 365, 400 N.E.2d 306; Kaufman v. American Youth Hostels, 5 N.Y.2d 1016, 185 N.Y.S.2d 268, 158 N.E.2d 128). Where the waiver extends to claims arising out of the negligence of a party, whether by use of the term "negligence" or by words of similar import, it provides the negligent party with a valid defense (Ciofalo v. Vic Tanney Gyms, supra, 10 N.Y.2d p. 297, 220 N.Y.S.2d 962, 177 N.E.2d 925; Solodar v. Watkins Glen Grand Prix Corp., 36 A.D.2d 552, 317 N.Y.S.2d 228; Theroux v. Kedenburg Racing Assn., 50 Misc.2d 97, 269 N.Y.S.2d 789 affd. 28 A.D.2d 960, 282 N.Y.S.2d 930, mot. for lv. to app. den. 20 N.Y.2d 648, 286 N.Y.S.2d 1026, 233 N.E.2d 300; see, Gross v. Sweet, supra, 49 N.Y.2d, p. 108, 424 N.Y.S.2d 365, 400 N.E.2d 306). The agreement here extends specifically to claims based upon the negligence of Niagara and Butterfield, its officer and agent, and bars, therefore, plaintiff Franzek's claim against them.

Further, plaintiff's claim that he neither read nor understood the waiver does not raise an issue of fact which might relieve him of its effect. The signer of an instrument is conclusively bound by it and it is immaterial whether he read it or subjectively assented to its terms (Pimpinello v. Swift & Co., 253 N.Y. 159, 162-163, 170 N.E. 530). There is no allegation of fraud or misrepresentation or that a special relationship existed between the parties which would render this rule inapplicable.

The original suit against Niagara, its president, Butterfield, and Calspan produced a flurry of cross-claims among these defendants and Zodiac. In each of these various cross-claims contribution was sought. Having determined that the release bars plaintiff's suit against Niagara and Butterfield, we focus on the reasons for concluding that the same release does not insulate Niagara and Butterfield from the imposition of cross-claims for contribution by Calspan and Zodiac. The statute to be construed is General Obligations Law, § 15-108 entitled "Release or Covenant Not to Sue". It provides that a plaintiff who settles with one tortfeasor may pursue his claim against other tortfeasors, with certain limitations (subd. (a)), no claim for contribution may be asserted against the released tortfeasor (subd. (b)); nor may the released tortfeasor obtain contribution from other tortfeasors (subd. (c)).

In dismissing the cross-claims, Special Term applied subdivision (b) of the statute which, as noted, bars contribution claims against a tortfeasor who has obtained a "(r)elease given in good faith by the injured person". In Special Term's view the waiver signed by Franzek was a release within the meaning of the statute.

Appellants contend that the statute only affects releases executed after the commission of a tortious act and that it has no application to a release obtained prior to or in anticipation of a tortious act. Niagara and Butterfield argue that there is no language in the statute from which that conclusion could be derived and that the statute has application without regard to the time when the release is obtained.

An analysis of the 1974 amendments to both General Obligations Law, § 15-108 (Releases) and Article 14 of the CPLR (Contribution) to which it is inseparably joined, must begin with a brief review of Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 which prompted the Legislature to act (N.Y.Legis.Ann., 1974, p. 15). Historically, no right of contribution existed among joint tortfeasors. More recently and immediately prior to Dole the rule of no apportionment of liability among multiple tortfeasors had two exceptions: (1) claims for indemnification were permitted, based on the "active-passive" negligence concept, and (2) contribution among joint tortfeasors was permitted under CPLR 1401 (derived...