Paralift, Inc. v. Superior Court

• Citation: 23 Cal.App.4th 748,29 Cal.Rptr.2d 177
• Decision Date: 20 October 1993
• Docket Number: No. D018950,D018950
• Court: California Court of Appeals Court of Appeals
• Parties: PARALIFT, INC., Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent; Danielle Davida LEVIN, a Minor, etc., et al., Real Parties in Interest.

Page 177

29 Cal.Rptr.2d 177

23 Cal.App.4th 748

PARALIFT, INC., Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent Danielle Davida LEVIN, a Minor, etc., et al., Real Parties in Interest.

No. D018950.

Court of Appeal, Fourth District, Division 1, California.

Oct. 20, 1993.

[23 Cal.App.4th 750] Ralph S. Greer, Pasadena, for petitioner.

Neil, Dymott, Perkins, Brown & Frank, Michael I. Neil and Tim S. McClain, San Diego, for respondent.

Singleton & Dean, Peter L. Dean and Terry Singleton, Escondido, for real parties in interest.

HUFFMAN, Associate Justice.

Paralift, Inc. (Paralift) is a defendant in a wrongful death action filed by Danielle Davida Levin by and through her guardian ad We agree with Paralift that no triable issues of material fact exist with respect to the scope and legal effect of decedent's release of liability and that, by reason of this release, Paralift has no liability to plaintiffs as a matter of law. Accordingly, without reaching the issue of primary assumption of the risk in this factual context, we grant the petition.

litem Lisa Smalley, Stanley Levin, Estelle Levin and James T. Rinn, representative of the estate of Alan David Levin. Paralift seeks a writ of mandate directing the trial court to grant its motion for summary judgment on either of two theories: A release executed by the decedent, Alan David Levin (decedent), constitutes a complete bar to any recovery by his heirs; or, in the alternative, the trial court should have found applicable in this factual context of skydiving the doctrine of primary assumption of the risk as explained in Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696 and Ford v. Gouin (1992) 3 Cal.4th 339, 11 Cal.Rptr.2d 30, 834 P.2d 724.

FACTUAL AND PROCEDURAL BACKGROUND

Decedent was a highly qualified and licensed skydiver who had made over 900 skydives prior to the fatal jump which gave rise to this action. On July 4, 1991, decedent, as part of a four-person team of skydivers, flew on a DC-3 aircraft owned and piloted by Paralift and its personnel. The pilot flew the aircraft in accordance with the directions of a designated spotter for the jump, according to the usual skydiving procedures. Decedent exited the aircraft at an altitude of approximately 13,000 feet. Far below there was cloud cover over the Del Mar Fairgrounds, the intended area of landing for this demonstration jump. The four skydivers engaged in aerial maneuvers together while falling through 10,000 feet of altitude. At approximately 2,100 feet above the earth, decedent disengaged from the others and dove through cloud cover to emerge above the ocean. According to witnesses, he disconnected his parachute from his parachute harness at an altitude of between 50 and 150 feet above the water and then was killed by the impact of his body on the surface of the water.

Approximately three years before the fatal jump, the decedent signed a release agreement with Paralift containing the following text in pertinent part:

"1. I hereby forever RELEASE AND DISCHARGE ... Paralift, Inc., ... from any and all liabilities, claims, demands or causes of action that I may hereafter have for injuries and damages arising out of participation in parachuting activities, including, but not limited to, losses CAUSED BY THE PASSIVE OR ACTIVE NEGLIGENCE OF THE RELEASED PARTIES or hidden, latent, or obvious defects on the dropzone [or] in the equipment or aircraft used.

"...

"3. I understand and acknowledge that parachuting activities have inherent dangers that no amount of care, caution, instruction or expertise can eliminate and I EXPRESSLY AND VOLUNTARILY ASSUME ALL RISK OF DEATH OR PERSONAL INJURY SUSTAINED WHILE PARTICIPATING IN PARACHUTING ACTIVITIES INCLUDING THE RISK OF PASSIVE OR ACTIVE NEGLIGENCE OF THE RELEASED PARTIES; or hidden, latent, or obvious defects on the dropzone or in the equipment or aircraft used.

"...

"8. ... I assume the risk of injury or death upon landing, and I understand that even under the best conditions, landing is an extremely dangerous activity and many injuries occur. Based upon my independent evaluation of all the risks I REAFFIRM MY ASSUMPTION OF THE EXTREME RISK AND DANGER SET OUT IN PARAGRAPH 3 ABOVE."

This release contains numerous references to Paralift's previous theatre of operations at the Perris Valley Airport, which is well inland from the location of the fatal jump, Del Mar. The release does not contain any expiration date. It makes no reference to jumps over large bodies of water or in particular weather conditions. However, one year before Decedent's heirs filed a wrongful death complaint in six causes of action alleging that Paralift was negligent in its operations and breached nondelegable duties to insure that the parachute jumping operations were conducted in a proper manner. As against the landowner, the State of California, premises liability was alleged. Compensatory and punitive damages were sought.

the fatal jump, the decedent had made four parachute jumps in the Del Mar Fairgrounds vicinity.

Paralift answered, raising a number of defenses, including a 13th affirmative defense alleging that the decedent was aware of the inherent danger of parachuting, "and voluntarily assumed the risk of such danger by a written instrument releasing and discharging [Paralift] from any duty of care to him." Paralift thus alleged that any recovery was barred or diminished to the extent that any damages were attributable to assumption of the risk.

Paralift brought a motion for summary judgment or, in the alternative, for summary adjudication. ¹ (Code Civ.Proc., § 437c.) The motion was based on the argument that the decedent had expressly assumed the risks involved in parachuting, a sporting activity. The motion further argued a number of issues concerning a lack of duty on the part of Paralift to the decedent, based upon his assumption of the risk. Lack of proximate cause was also argued, based upon the decedent's disconnection of his canopy from his parachute harness. In support of the express release argument, Paralift pointed out that the decedent had signed the release and initialed it in 22 places. Prior to signing the document, he had witnessed a videotape explaining the waiver and advising the viewer not to sign the release until the advice of independent counsel was obtained.

In opposition to the motion, the decedent's heirs argued that the release did not apply to the skydiving operation at the Del Mar Fairgrounds, which was a public demonstration flight near an ocean area, as contrasted to the private sport parachuting operations out of the Perris Valley Airport which were the original subject of the release. The plaintiffs also argued that Paralift increased the risk of harm to the decedent by letting him out over cloud cover where the shoreline was unknown. Issues of proximate causation were also argued.

In its reply, Paralift argued that under Hulsey v. Elsinore Parachute Center (1985) 168 Cal.App.3d 333, 214 Cal.Rptr. 194, exculpatory contracts for participation in parachuting activities are not against public policy. Paralift argued that the particular release was not limited to any time, place, or type of activity on the part of Paralift. ²

In ruling on the motion, the court made the following finding concerning the express release issues:

"The written waiver does not apply to Levin's jump on July 4, 1991, over the Pacific Ocean. Defendant's exhibit 20 shows that the waiver was executed nearly three years before the fatal jump occurred. Moreover, jumps occurring over large bodies of water involve a different risk than those occurring over land. (See defendant's exhibit 17, page 284.) Levin's waiver does not mention jumps occurring over the ocean or at the intended dropzone, Del Mar Fair. The only dropzone specifically mentioned in the waiver is the Perris Valley Airport. (See defendant's exhibit 20 paragraph 8.) Paragraph 8 of the waiver shows that jumps over large bodies of water were not covered by the terms of Levin's waiver."

In its ruling, the trial court further stated that Paralift owed a duty of reasonable care to the decedent not to place him in a condition where there was a foreseeable risk of harm, i.e., not to drop him too far out over the ocean or in dangerous weather conditions likely to cause him injury. The court then made a number of other findings concerning We issued an order to show cause and notified the parties that oral argument would be restricted to the issues presented concerning the effect of the written waiver and release form signed by the decedent. We asked the parties to submit supplemental briefing on the issue of the effect of the passage of time upon a release, where it applies to the same parties and the same activity continuing over a period of time.

the issues of duty, breach, and causation, finding that there were triable issues of fact on all those matters. Paralift timely petitioned for this writ of mandate. (Code Civ.Proc., § 437c, subd. (l).)

DISCUSSION

The dispositive issue before this court is whether the release applies to the fatal jump event, which took place some three years after the release was signed and in a different location than where the activities covered by the release originally began. To resolve this issue, we conduct not only a de novo examination of the moving and opposing papers to determine whether Paralift is entitled to judgment as a matter of law (Madison v. Superior Court (1988) 203 Cal.App.3d 589, 595-596, 250 Cal.Rptr. 299), but also conduct a de novo interpretation of the release document. Where, as here, no conflicting parol evidence is introduced concerning the interpretation of the document, "construction of the instrument is a question of law, and the appellate court will independently construe the writing. [Citation.]" (Winet v. Price (1992) 4 Cal.App.4th 1159, 1166, 6 Cal.Rptr.2d 554.) The threshold determination of whether a...