Malecha v. St. Croix Valley Skydiving Club, Inc.
| Citation | 392 N.W.2d 727 |
| Decision Date | 02 September 1986 |
| Docket Number | No. C7-86-378,C7-86-378 |
| Parties | William R. MALECHA, Appellant, v. ST. CROIX VALLEY SKYDIVING CLUB, INC., Respondent, Lite Flight, Inc., Defendant. |
| Court | Court of Appeals of Minnesota |
Syllabus by the Court
The exculpatory agreement signed by appellant released respondent of any liability arising out of its alleged negligence.
James J. Boyd, Paige J. Donnelly, Ltd., St. Paul, for appellant.
Mary H. Terzino, Faegre & Benson, Minneapolis, for respondent.
Heard, considered and decided by RANDALL, P.J., and LANSING and HUSPENI, JJ.
Appellant William "Rick" Malecha brought this action against respondent St. Croix Valley Skydiving Club, Inc. (the Skydiving Club) and Lite Flight, Inc. seeking to recover damages for the injuries he incurred in a skydiving accident. The trial court granted the Skydiving Club summary judgment on the basis of a waiver of liability form that appellant signed. Lite Flight was subsequently dismissed pursuant to the parties' stipulation. On appeal, appellant challenges the validity of the exculpatory agreement. We affirm.
On August 27, 1983, Malecha and two friends took a skydiving course at the Skydiving Club, a corporation that operates a recreational parachuting center, near Osceola, Wisconsin. The course included approximately five hours of instruction and the opportunity to make a parachute jump. During Malecha's jump, late in the afternoon, Malecha was injured when his parachute did not open properly. His injuries included a fracture of the right foot, a fracture in the lumbar spine area, fractures of some teeth and some lacerations on his chin and neck.
The issue on appeal deals with the validity of the waiver of liability form that Malecha signed.
Malecha paid the Skydiving Club for the course after he arrived on the morning of August 27. At some point during the day, he signed a waiver of liability form that an instructor gave him. Malecha claims that he did not sign the form until later in the day right before his jump. One witness, an instructor, also signed the waiver. The waiver provided, in regular type, as follows:
Know all men by these presents:
That I, [Rick Malecha], the undersigned, while engaging in the sport of parachuting or skydiving, do hereby agree for myself, my heirs, executors, administrators and assigns, that neither said St. Croix Valley Skydiving Club Inc., nor any of its officers or members shall be held responsible or liable for any negligence implied or otherwise, or personal injury, or death, or property loss, or damage suffered or sustained by me in connection with or arising out of or resulting from any or all parachuting or skydiving activities engaged in by me; and further, I do hereby, for myself, my heirs, administrators, executors, and assigns, assume all risk whatsoever of personal injury or death or property damage or loss in connection with or arising out of or resulting from any or all parachuting or skydiving activities engaged in by me, and absolve and release said St. Croix Valley Skydiving Club, Inc., its officers and members, of and from all liability thereof, and further, I do hereby convent [sic] and agree for myself, my heirs, executors, administrators, and assigns, not to sue, arrest, attach, or prosecute said St. Croix Valley Skydiving Club, Inc., its officers and members for or on account of any such personal injury or death or property damage or loss, it being my express intent and purpose to bind myself, my heirs, executors, administrators, and assigns hereby.
The words "PERMANENT WAIVER" appear in capital letters at the bottom of the printed page following the signature lines.
Malecha claims that he was not informed of the effect of the document before signing it. He does not recall whether he was instructed to read the document before signing it. In any event, he did not thoroughly read the waiver and he claims he did not understand its terms prior to signing it. After reading the form during his deposition, Malecha interpreted the form to be a waiver of "the right to hold [the Skydiving Club] responsible or liable for negligence."
Alan Eisentrager, one of the friends with Malecha at the Skydiving Club, states in his deposition that they paid for the course just before the training started in the morning. He remembers receiving a copy of the waiver and being told that if he wanted to jump he had to sign the form. Peter Eisentrager, another friend with Malecha the day of the accident, stated in his deposition that he paid for the course before it started. He recalled being given "something" at the time that he paid for the course.
Following the accident, Malecha brought this action against the Skydiving Club based upon the theory that the Skydiving Club negligently failed to provide safe equipment and adequate training and supervision. The trial court granted summary judgment in favor of the Skydiving Club on the basis that Malecha released the Skydiving Club from liability for its negligence.
After the parties stipulated to the dismissal of Lite Flight, Inc., Malecha filed this appeal.
Did the trial court err in granting summary judgment based on the exculpatory agreement?
On review of a summary judgment award, this court must determine whether there are any genuine issues of material fact for trial and whether the trial court erred in applying the law. Betlach v. Wayzata Condominium, 281 N.W.2d 328, 330 (Minn.1979).
Malecha claims that the exculpatory agreement is ambiguous and, therefore, a factual issue exists with respect to the meaning of the agreement. Whether a contract provision is ambiguous is a question of law in the first instance. Blattner v. Forster, 322 N.W.2d 319, 321 (Minn.1982). The trial court found the agreement to be unambiguous. We agree. Even though the agreement is unnecessarily wordy, it is susceptible to only one reasonable interpretation. See Collins Truck Lines, Inc. v. Metropolitan Waste Control Commission, 274 N.W.2d 123, 126 (Minn.1979). The agreement specifies that the Skydiving Club shall not be "held responsible or liable for any negligence implied or otherwise." In fact, appellant himself had no difficulty describing the scope of the waiver at his deposition. The trial court did not err when it found no ambiguity in the agreement.
We must then consider whether the trial court correctly applied the law in awarding summary judgment to the Skydiving Club. Minnesota recognizes the validity of exculpatory agreements in certain circumstances, although they are not favored. 1
In Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920 (Minn.1982), the supreme court set forth the standard applicable to exculpatory clauses and found an exculpatory clause in a health spa membership contract valid. The Schlobohm court first directed that if a clause exonerating a party from liability is either ambiguous in scope or purports to release a party from liability for intentional, willful or wanton acts, it is not enforceable. Id. at 923.
Having already noted that the agreement is not ambiguous, we further agree with the trial court that the agreement is limited to releasing the Skydiving Club from liability for acts of negligence. While we recognize that some of the language in the agreement could be construed to extend beyond acts of negligence, the clause considered in Schlobohm also included broad language. There, the supreme court determined that "[t]he clause specifically purports to exonerate Spa Petite from liability for acts of negligence and negligence only." Id. at 923. The agreement here is susceptible to that same interpretation. Further, as in Schlobohm, Malecha alleged only that the Skydiving Club had been negligent. He did not allege any damage from intentional or willful acts of the Skydiving Club.
In Schlobohm, after considering whether the clause was ambiguous or overbroad, the supreme court addressed whether the clause violated public policy. 326 N.W.2d at 923. The court adopted a two-prong test to analyze the policy considerations: (1) whether there was a disparity of bargaining power between the parties, and (2) whether the service being offered is a public or essential service. Id.
As did the court in Schlobohm, we find no disparity of bargaining power between Malecha and the Skydiving Club. There is no evidence that the Skydiving Club's services were necessary or unavailable elsewhere. Further, Malecha was under no compulsion to make the parachute jump. He had the choice to either make the jump subject to the Skydiving Club's rules or to forego it. See Schlobohm, 326 N.W.2d at 925.
Malecha asserts that he was not given the waiver form to sign until just before leaving the club area for his jump. At that point, he claims he was forced to accept the exculpatory agreement on a "take it or leave it" basis. Proof that he had no opportunity to negotiate the terms of the exculpatory agreement is not enough to show a disparity of bargaining power. Malecha also had to show that the Skydiving Club's services could not be obtained elsewhere. See Schlobohm, 326 N.W.2d at 924-25. There is evidence in the record indicating that there are other skydiving training businesses in the vicinity of the Skydiving Club. In fact, Alan Eisentrager checked into at least one other skydiving business before he and Malecha decided to go to the Skydiving Club. Cf. Walton v. Fujita Tourist Enterprises Co., Ltd., 380 N.W.2d 198, 201 (Minn.Ct.App.1986), pet. for rev. denied, (Minn. Mar. 21, 1986) (exculpatory clause in a familiarization trip agreement held invalid because the offer of the trip was "by invitation only" and the agreement was unilaterally prepared by the offeror; the services were not available elsewhere; and fam trips are necessary for the business success of a travel agent).
We also conclude that the Skydiving Club's service is not a public or essential service. The Schlobohm court described...
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