Marshall v. Blue Springs Corp.

• Decision Date: 19 October 1994
• Docket Number: No. 73A05-9311-CV-432,73A05-9311-CV-432
• Citation: 641 N.E.2d 92
• Parties: 95 Ed. Law Rep. 641 Danny Roy MARSHALL and Sherry Marshall, Appellants-Plaintiffs v. BLUE SPRINGS CORPORATION d/b/a Blue Springs Park, Raymond Dickerson, and Cincinnati Diving Center, Inc., Appellees-Defendants
• Court: Indiana Appellate Court

Page 92

641 N.E.2d 92

95 Ed. Law Rep. 641

Danny Roy MARSHALL and Sherry Marshall, Appellants-Plaintiffs v. BLUE SPRINGS CORPORATION d/b/a Blue Springs Park, Raymond Dickerson, and Cincinnati Diving Center, Inc. Appellees-Defendants

No. 73A05-9311-CV-432.

Court of Appeals of Indiana Fifth District.

Oct. 19, 1994.

Earl C. Townsend, III, Townsend & Townsend, Indianapolis, Arnold S. Levine, Law Offices of Arnold S. Levine, Cincinnati, OH, for appellants.

David M. Mattingly, Laura B. Daghe, Ice Miller Donadio & Ryan, Indianapolis, for appellees.

BARTEAU, Judge.

Danny and Sherry Marshall appeal the trial court's grant of summary judgment in favor of Blue Springs Corporation, d/b/a Blue Springs Park, Raymond Dickerson, and Cincinnati Diving Center, Inc. (collectively "Defendants"), on the Marshalls's complaint for negligence. On appeal, the Marshalls raise two issues:

1. Whether the trial court erred in granting summary judgment in favor of Defendants when Defendants failed to designate the evidence relied on in support of their motion for summary judgment; and

2. Whether there is a genuine issue of material fact as to whether the releases were signed under economic compulsion or duress.

Oral argument was held on September 19, 1994. We affirm.

FACTS

In January, 1991, Danny Marshall enrolled in a scuba diving class offered by Cincinnati Diving Center ("CDC"). At the time he enrolled, he signed a "Student Enrollment Form and Liability Release," which stated:

In consideration of a deposit of 135.00 paid on __, I understand that Cincinnati Diving Center,Inc. [sic] is reserving a place for me in a SCUBA diving class which begins on Jan. 20. I also understand that should I decide not to participate in the above class I must give Cincinnati Diving Center at least two weeks notice of that decision. Should I fail to give proper notice, I understand I will not receive a refund of my deposit, unless my space can be resold.

Scuba diving can be a SAFE and enjoyable sport but proper professional training is a requirement and some risks do exist. I personally am willing to assume ALL risks involved with said course, whether foreseen or unforeseen. I further affirm that I have been well advised and thoroughly informed of the inherent dangers of SCUBA DIVING. Further, I understand that diving with compressed air involves certain risks, injuries or death can occur. I understand and agree that neither Cincinnati Diving Center,Inc. [sic] or its staff may be held liable in anyway [sic] for any occurrence in connection with this diving class that may result in injury or death.

R. 140. The lessons began on January 20, 1991, and ran for eight Sundays. On March 1, 1991, Marshall was required by CDC to sign a "TIC Application Form" ("TIC release") in order to complete the remainder of the course. That form contained a paragraph stating:

LIMITATION OF LIABILITY

For in consideration of permitting the above named student to enroll in and participate in diving activities and class instruction of skin and/or scuba diving given by a sanctioned member school of the National Association of Scuba Diving Schools, the undersigned hereby releases, discharges, waives and relinquishes any and all actions or causes of action for personal injury, property damage or wrongful death occurring to him/herself arising as a result of engaging in or receiving instruction in said activity or any activities incidental thereto wherever or however the same may occur and for whatever period said activities or instruction may continue, and the undersigned does for him/herself, his/her estate, and agrees that under no circumstances will he/she or his/her heirs, executors, administrators and assigns prosecute, present any claim for personal injury, property damage or wrongful death against the National Association of Scuba Diving Schools or its member school or R. 141. CDC is a member school of the National Association of Scuba Diving Schools. Marshall's open water dive, a required element of the diving course in order to be certified, was scheduled for August 17, 1991. On August 16, Marshall picked up his rental equipment for the dive and signed a "CDC Rental and Agreement and Release Form" that stated in part: "That lessee uses said equipment entirely at his or her own risk." R. 233. When the Marshalls arrived at Blue Springs Park for Danny's open water dive on August 17, they had to purchase memberships and sign the "Blue Springs Park Membership Application" ("Blue Springs release") before they could enter the park. The front of the application stated:

                any of its officers, agents, servants or employees for any of said causes of actions, whether the same shall arise by the negligence of any of said persons, or otherwise.  IT IS THE INTENTION OF THE ABOVE NAMED STUDENT BY THIS INSTRUMENT, TO EXEMPT AND RELIEVE THE NATIONAL ASSOCIATION OF SCUBA DIVING SCHOOLS AND ITS MEMBER SCHOOL FROM LIABILITY FOR PERSONAL INJURY, PROPERTY DAMAGE OR WRONGFUL DEATH CAUSED BY NEGLIGENCE.   I also understand and agree that the open water trips which are required for instructional purposes and certification in this course may be conducted at a dive site which is remote and as a result a decompression chamber may not be readily available.  I hereby personally assume all risks in connection with said course for any harm, injury or damage which may befall me while I am enrolled as a student of the course, including all risks connected therewith, whether foreseen or unforeseen.  I still wish to continue and assume the risk of the absence of a decompression chamber
                

7. Your signature indicates you are in full agreement with the waiver and release on reverse side.

8. This is fully intended to be a legally binding contract and release. If you have any doubts concerning any aspect of its contents, consult an attorney and do not enter the premises.

R. 235. The reverse side of the application stated:

NOTICE

THIS IS A WAIVER AND RELEASE

WE THE UNDERSIGNED, FULLY UNDERSTAND THE RISK INVOLVED IN SCUBA DIVING, SWIMMING, DIVING, AND OTHER ACTIVITIES IN WHICH WE MIGHT PARTICIPATE AT BLUE SPRINGS, AND ACCEPT ANY AND ALL RESPONSIBILITY FOR OUR OWN SAFETY AND WELFARE WHILE SCUBA DIVING, SWIMMING, DIVING OR PARTICIPATING IN OTHER ACTIVITIES.

WE THE UNDERSIGNED AGREE WITH FULL UNDERSTANDING OF THE RISKS INVOLVED TO RELIEVE, RELEASE, INDEMNIFY AND HOLD HARMLESS BLUE SPRINGS PARK, BLUE SPRINGS CORPORATION, RAYMOND DICKERSON, THE OWNER OF THE REAL ESTATE, AND ANY AND ALL EMPLOYEES, OFFICERS, AND/OR DIRECTORS OF ANY OF SAID INDIVIDUALS OR ENTITIES OF ANY AND ALL RESPONSIBILITY OR LIABILITIES TO THE UNDERSIGNED FOR ANY ACCIDENTS OR MISHAPS WHICH MAY OCCUR WHILE SCUBA DIVING, SWIMMING, DIVING, OR PARTICIPATING IN ANY OTHER ACTIVITIES, AND FROM ANY AND ALL INJURIES OR DAMAGES FORM [sic] RISKS KNOWN OR UNKNOWN.

WE THE UNDERSIGNED UNDERSTAND THERE IS NOT A LIFEGUARD ON DUTY, CLIFF DIVING IS PROHIBITED, AND NO ALCOHOLIC BEVERAGES OR DRUGS ARE PERMITTED.

WHEN SIGNED ON THE FRONT, THE SIGNER ADMITS TO FULL UNDERSTANDING OF THE ABOVE AND AGREES TO NO LEGAL ACTION IN CASE OF ACCIDENT OR MISHAP AND FULLY RELEASE [sic] ALL THE ABOVE PERSONS AND/OR ENTITIES

THEREOF OF ANY LIABILITY OF ANY SORT, BASED IN TORT (PERSONAL INJURY), CONTRACT, OR OTHERWISE.

I FURTHER ACKNOWLEDGE THAT SCUBA DIVING IS INHERENTLY DANGEROUS AND CAN RESULT IN PERMANENT AND SERIOUS INJURY AND DEATH. I CHOOSE TO ACCEPT AND INCUR THAT RISK.

R. 236. At the entrance to the park, the Marshalls were also required to sign a "sign-in sheet" that stated: "NOTICE: IN SIGNING THIS YOU AGREE WITH THE WAIVER AN [sic] RELEASE AS A MEMBER." R. 234. While preparing for his dive, Danny was on the floating dock used for the dives. While putting on his equipment, he slipped and fell, injuring his knee.

Other facts will be presented as necessary.

DESIGNATED EVIDENCE

The Marshalls first argue that the trial court erred in granting summary judgment in favor of Defendants because Defendants did not specifically designate the evidence supporting their motion for summary judgment, as required by Ind.Trial Rule 56(C). The record does not support the Marshalls's argument.

Trial Rule 56(C) provides in part: "At the time of filing the motion ..., a party shall designate to the court all parts of the pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion.... [T]he court shall make its determination from the evidentiary matter designated to the court." "The identification of material facts and relevant evidence contained in appropriate T.R. 56(C) supporting materials through a summary judgment brief complies with the designation requirement of T.R. 56(C)." Vogler v. Dominguez (1993), Ind.App., 624 N.E.2d 56, trans. denied. ¹ Here, Defendants stated in their motion for summary judgment that the "pleadings, affidavits and depositions show that there is no genuine issue as to any material fact...." While this designation by itself lacks the required specificity, Defendants's memorandum in support of summary judgment provides the specific page references to the parts of the record containing the evidentiary matters relied upon. This is sufficient designation of the evidence for the trial court's determination.

VALIDITY OF RELEASES

The Marshalls present arguments concerning all four releases that were signed. However, because we conclude that the TIC and Blue Springs releases are valid, we do not need to discuss the other releases. The Marshalls argue that the trial court erroneously granted summary judgment in favor of Defendants because genuine issues of material fact exist as to whether the TIC and Blue Springs releases were signed under economic compulsion or duress.

As a general rule, parties are permitted to agree in advance that one is under no obligation of care for the benefit of the other, and shall not be liable for the consequences of conduct...