Jones v. Dressel

• Decision Date: 05 January 1981
• Docket Number: No. C-1637,C-1637
• Citation: 623 P.2d 370
• Parties: William Michael JONES, Petitioner, v. Cecil D. DRESSEL, Zita A. Dressel, Robert L. Clark, Flightcraft, Inc., and Free Flight Sport Aviation, Inc., Respondents.
• Court: Colorado Supreme Court

Page 370

623 P.2d 370

William Michael JONES, Petitioner, v. Cecil D. DRESSEL, Zita A. Dressel, Robert L. Clark Flightcraft, Inc., and Free Flight Sport Aviation Inc., Respondents.

No. C-1637.

Supreme Court of Colorado, En Banc.

Jan. 5, 1981.

As Modified on Denial of Rehearing Feb. 23, 1981.

L. B. Ullstrom, Edward J. Rau, Thomas J. Byrne, Denver, for petitioner.

Weller, Friedrich, Hickisch & Hazlitt, Donald Lawrence and Paul D. Renner, Denver, for respondents.

ERICKSON, Justice.

We granted certiorari to review the decision in Jones v. Dressel, 40 Colo.App. 459, 582 P.2d 1057 (1978). In an action for damages by the plaintiff for personal injuries sustained in an airplane crash, the trial court granted the defendants' motion for partial summary judgment. Summary judgment was based upon the execution of an exculpatory agreement which the court held insulated the defendants from liability for simple negligence involving the crash of an airplane. A claim alleging willful and wanton negligence is at issue in the trial court. The court of appeals affirmed. We affirm the court of appeals.

On November 17, 1973, the plaintiff, William Michael Jones, who was then seventeen years old, signed a contract with the defendant, Free Flight Sport Aviation, Inc. (Free Flight). ¹ The contract allowed Jones to use Free Flight's recreational skydiving facilities, which included use of an airplane to ferry skydivers to the parachute jumping site. A covenant not to sue and a clause exempting Free Flight from liability were included in the contract:

"2A. EXEMPTION FROM LIABILITY. The (plaintiff) exempts and releases the Corporation, its, owners, officers, agents, servants, employees, and lessors from any and all liability, claims, demands or actions or causes of action whatsoever arising out of any damage, loss or injury to the (plaintiff) or the (plaintiff's) property while upon the premises or aircraft of the Corporation or while participating in any of the activities contemplated by this Agreement, whether such loss, damage, or injury results from the negligence of the Corporation, its officers, agents, servants, employees, or lessors or from some other cause."

The contract also contained an alternative provision which would have permitted Jones to use Free Flight's facilities at an increased cost, but without releasing Free Flight from liability for negligence. ²

On December 28, 1973, Jones attained the age of eighteen. ³ Ten months later, on October 19, 1974, he suffered serious personal injuries in an airplane crash which occurred shortly after takeoff from Littleton Airport. Free Flight furnished the airplane as part of its skydiving operation. ⁴

On November 21, 1975, nearly two years after attaining his majority, Jones filed suit against Free Flight alleging negligence and willful and wanton misconduct as the cause of the airplane crash. The defendants included the owners and operators of the airplane, the airport, and Free Flight. Based upon the exculpatory agreement, the trial court granted summary judgment in favor of the defendants. The court of appeals affirmed the trial court.

Jones asserts three grounds for reversal of the summary judgment. First, he claims that he disaffirmed the contract with Free Flight within a reasonable time after he attained his majority by filing suit. Second, he asserts that the exculpatory agreement is void as a matter of public policy. Third, he contends that inasmuch as an exculpatory agreement must be strictly construed against the party seeking to avoid liability for negligence, the injuries which he sustained as a result of the airplane crash were beyond the scope of the agreement.

I. Summary Judgment

Summary judgment is only granted if the pleadings, admissions, depositions, answers to interrogatories, and affidavits establish that no genuine issue exists as to any material fact and judgment should be entered as a matter of law. C.R.C.P. 56(c). It is, however, a drastic remedy, and should only be granted upon a clear showing that there is no genuine issue as to any material fact. Ginter v. Palmer and Company, 196 Colo. 203, 585 P.2d 583 (1978); Roderick v. City of Colorado Springs, 193 Colo. 104, 563 P.2d 3 (1977); Abrahamsen v. Mountain States Tel. and Tel. Co., 177 Colo. 422, 494 P.2d 1287 (1972); Pritchard v. Temple, 168 Colo. 555, 452 P.2d 381 (1969). In determining whether summary judgment is proper, the trial court must resolve all doubts as to whether an issue of fact exists against the moving party. United States v. Diebold, 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Ginter v. Palmer, supra. However, the existence of a difficult or complicated question of law, when there is no issue as to the facts, is not a bar to summary judgment. Ammons v. Franklin Life Insurance Company, 348 F.2d 414 (5th Cir. 1965).

Consequently, our review of the order granting summary judgment necessarily involves a determination of whether a genuine issue as to any material fact exists which would foreclose the defendants from obtaining summary judgment as a matter of law.

II. Ratification

As a matter of public policy, the courts have protected minors from improvident and imprudent contractual commitments by declaring that the contract of a minor is voidable at the election of the minor after he attains his majority. ⁵ Doenges-Long Motors v. Gillen, 138 Colo. 31, 328 P.2d 1077 (1958). A minor may disaffirm a contract made during his minority within a reasonable time after attaining his majority or he may, after becoming of legal age, by acts recognizing the contract, ratify it. Keser v. Chagnon, 159 Colo. 209, 410 P.2d 637 (1966); Fellows v. Cantrell, 143 Colo. 126, 352 P.2d 289 (1960); Doenges- Long v. Gillen, supra; Kendrick v. Neisz, 17 Colo. 506, 30 P. 245 (1892).

Affirmance is not merely a matter of intent. It may be determined by the actions of a minor who accepts the benefits of a contract after reaching the age of majority, or who is silent or acquiesces in the contract for a considerable length of time. What act constitutes ratification or disaffirmance is ordinarily a question of law to be determined by the trial court. Sullivan v. Bennett, 261 Mich. 232, 246 N.W. 90 (1933). We agree that what constitutes a reasonable time for affirmance or disaffirmance is ordinarily a question of fact to be determined by the facts in a particular case. ⁶ We conclude, however, that the trial court properly determined that Jones ratified the contract, as a matter of law, by accepting the benefits of the contract when he used Free Flight's facilities on October 19, 1974.

Thus, since Jones ratified the contract, the factual issue of whether his suit for personal injuries was filed within a reasonable time after attaining his majority and constituted disaffirmance of the contract, is not relevant. Accordingly, the entry of summary judgment on the issue of ratification was not error.

III. The Contract

Jones' assertion that his contract with Free Flight is void as a matter of public policy, raises two issues: (A) whether the contract with Free Flight is an adhesion contract; and (B) the validity of the exculpatory provisions of the contract. Our consideration of the two issues necessarily involves a determination, as a matter of law, whether summary judgment was properly granted based upon the undisputed facts in this case.

A. Adhesion Contract

An adhesion contract is a contract drafted unilaterally by a business enterprise and forced upon an unwilling and often unknowing public for services that cannot readily be obtained elsewhere. See Chandler v. Aero Mayflower Transit Company, 374 F.2d 129 (1967); A. Ehrenzweig, Adhesion Contracts in the Conflict of Laws, 53 Col.L.Rev. 1072. An adhesion contract is generally not bargained for, but is imposed on the public for a necessary service on a take or leave it basis. See generally Clinic Masters v. District Court, 192 Colo. 120, 556 P.2d 473 (1976); Standard Oil Company of California v. Perkins, 347 F.2d 379 (9th Cir. 1965).

In Clinic Masters v. District Court, supra, this Court stated that even though a contract is a printed form and offered on a "take-it-or-leave-it" basis, those facts alone do not cause it to be an adhesion contract. There must be a showing "that the parties were greatly disparate in bargaining power, that there was no opportunity for negotiation, or that (the) services could not be obtained elsewhere." Id. at 124, 556 P.2d 473. See also, W. C. James Inc. v. Phillips Petroleum Company, 347 F.Supp. 381 (D.Colo.1972); Weaver v. American Oil Company, 257 Ind. 458, 276 N.E.2d 144 (1971); Williams v. Walker-Thomas Furniture Company, 350 F.2d 445 (D.C.Cir.1965).

The various elements of an adhesion contract may be characterized as substantive (those that appear in the contract) and procedural (those that must be identified by resort to evidence relating to the formation of the contract). Matter of Friedman, 64 A.D.2d 70, 407 N.Y.S. 999 (1978). However, whether the issue is substantive or procedural, the determination of whether the contract is an adhesion contract is a matter of law for the court to resolve. Wilson Trading Corp. v. David Ferguson Ltd., 23 N.Y.2d 398, 297 N.Y.S.2d 108, 244 N.E.2d 685 (1968). Thus, in the absence of any genuine issue of material fact, the issue of whether a contract is an adhesion contract, does not preclude the entry of summary judgment.

We conclude that the record in the instant case supports the trial court's determination that the contract between Jones and Free Flight was not an adhesion contract as a matter of law. ⁷

Jones contends that this was an adhesion contract because he was not allowed to select the alternative provision which would have allowed him to participate in the activities without releasing Free Flight from liability for its negligence, and that a genuine issue as to his lack of choice precluded the entry of summary judgment. ⁸ We disagree. As we stated in Clinic...