Prince v. Parachutes, Inc., 7804

• Citation: 685 P.2d 83
• Decision Date: 08 June 1984
• Docket Number: No. 7804,7804
• Parties: Clay C. PRINCE, Appellant, v. PARACHUTES, INC., Appellee.
• Court: Supreme Court of Alaska (US)

Page 83

685 P.2d 83

Clay C. PRINCE, Appellant, v. PARACHUTES, INC., Appellee.

No. 7804.

Supreme Court of Alaska.

June 8, 1984.

John Suddock, Robert M. Libbey, Libbey, Suddock & Hart, Anchorage, for appellant.

Richard A. Helm, Burr, Pease & Kurtz, Inc., Anchorage, Richard D. Hart, Condon & Forsyth, Los Angeles, Cal., for appellee.

Before BURKE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and MOORE, JJ.

OPINION

MOORE, Justice.

In this products liability case, Clay Prince seeks to recover from a manufacturer of parachutes, Parachutes, Inc., for personal injuries resulting from a parachuting accident. He alleges that the manufacturer failed to adequately warn of the difficulty of managing its parachute. Prince appeals from an order granting summary judgment for the manufacturer.

I. Facts

In the spring of 1979 Prince decided to learn how to parachute. He attended two classes where he learned the basics of parachuting and where he learned to jump using the standard military round canopy parachute. During the summer, he made 29 jumps using the military round canopy.

After jumping one day, Prince was offered the use of a parachute with a triangular canopy by a Mr. Roman; this parachute is called the Paradactyl. Roman told Prince that he was ready for the Paradactyl and Roman briefed him on some of the flying characteristics of the Paradactyl.

When he borrowed the Paradactyl, Prince was already aware that there were variations in parachutes (such as the square parachute that had to be operated compared to the round parachute that simply dropped). He was also aware that once one jumped using the military round canopy fifty times, one would advance to the parachute called the "Paracommander."

Before using the Paradactyl, Prince was twice told that he should get the permission of Mickey Sleeper, a U.S. Parachute Association (USPA) Area Safety Officer, because the parachute was more advanced than what Prince was used to and because he "probably wouldn't be allowed to jump it on [his] own...." Prince did consult with Sleeper regarding his use of the Paradactyl and did get her permission. Such permission is required by USPA regulation of canopy progression by novices.

Prior to the accident, Prince jumped using the Paradactyl a total of five times. On August 12, 1979, Prince made four of the five jumps using the Paradactyl. During each jump he had problems landing the parachute properly. He would tumble and roll on the ground; one time he hurt his knees but experienced no bleeding or bruises. He asked various people, including Sleeper, what he was doing wrong, but "nobody seemed to know because nobody had jumped the Paradactyl. Their suggestions were to 'keep experimenting.' "

On August 19, Prince made two jumps, both with the Paradactyl. This time he jumped with three other parachutists. The three others included Sleeper, Suzy Neuman and another person, Doug, who were all experienced sky divers and who were all using square canopies. The first jump that day was unremarkable except for the landing. It was on the second jump that the accident occurred. At first, the jump was going fine; Prince had no real problem leaving the plane and the parachute opened without difficulty. While in the air, Prince observed that Sleeper and Doug had landed. Prince saw that Neuman was far off to his left (less than a mile), and although she was at a lower altitude, he decided to land next because he was closer to the target.

When he was about 300-500 feet above the ground he took one last look at Neuman before cutting into the wind and descending. At 50 feet he started slowing down and was preparing to land. He had lost sight of Neuman because his back was to her. He states that he "wasn't even thinking about her at that point. [He] was concentrating on landing." Out of the corner of his eye, he saw Neuman's canopy coming right at him, and he did not have time to react. The canopy hit him between the shoulder and hip. His canopy lost its air and he fell 30 feet. Prince broke his neck and is now a quadriplegic.

In his deposition, Prince admits that (1) he knew the speed of the Paradactyl but did not know the speed of the square canopy; (2) he should not have landed before Neuman because the low person has the right to land first; (3) the parachute performed fine; (4) the speed of the parachute was not a problem until he attempted to land; and (5) he was where he wanted to be (over the target area) before the collision.

In an affidavit, he states that the Paradactyl was so difficult for him to land that it required all of his attention to the extent that he became unaware of Neuman's placement, and that this would not have occurred if he had not used the Paradactyl.

He further indicates in his affidavit that if there had been a warning sewn into the Paradactyl, or if he had been told to read a manual which contained an adequate warning and had learned that the parachute was too advanced for him, he would never have used it.

Sleeper, the area safety officer, admits that she was ignorant about the difficulty of managing the Paradactyl, and about the experience level required to safely use the Paradactyl. She had never used the Paradactyl, although she had observed it in the air. At the time Sleeper gave Prince permission to use the Paradactyl she considered him to be an average but not extraordinary parachute jumper for his experience level.

There is a manual for the Paradactyl. On page 2 of the manual under the heading "Interesting Facts about the Paradactyl" the manual states that "the Paradactyl is a high performance parachute and is recommended for use by experienced jumpers (over 100 jumps)." On page 4 of the manual there is a section titled "Flight Instructions and Characteristics" which contains various warnings about the Paradactyl, but in this portion of the manual there is no mention of the suggested experience level. There is no warning sewn into the parachute itself.

Gary Douris, one of Prince's expert witnesses, states that Prince never should have jumped the Paradactyl because it was too advanced for one of his experience. In his affidavit, Douris states that:

As Clay Prince approached the landing zone, he should have rechecked his position relative to the Suzy Neuman canopy. He did not do so. I believe he was not able to do so because the demands upon him of landing the canopy were too great, given his prior unsuccessful landings and his lack of training, knowledge and experience. If he had been under a canopy that was proper for his experience level, I believe the collision probably would not have occurred.

However, Douris also states that the warning in the manual was adequate and that it was not the standard of the industry to stamp warnings in the parachute itself. Another expert for Prince, MacCollum, states in his affidavit that:

The manufacturer's brochure on the Paradactyl is grossly deficient when addressing inherent hazards which endanger the lives of all prospective users. Reasonable means are available to acquaint the user with dangers associated with use of this type of parachute. A fabric warning could have been sewn on the parachute to alert prospective users to the fact that the Paradactyl was not a parachute to be used by a novice jumper and directing prospective users to an accompanying manual which would describe in detail the pre-requisites for its use--the number of jumps and other qualifications which must be met before attempting to use the Paradactyl.

A complaint was filed on May 5, 1981 against Mickey Sleeper and the Para-Angels Sport Parachute Club. On August 18, 1981 the complaint was amended to add causes of action against Gene Sleeper, Neuman, and manufacturers of the Paradactyl, Parachutes, Inc. and FXC Corporation. ¹ The causes of action against Parachutes, Inc. and FXC Corporation were for products liability. In a second amended complaint, Prince alleged more specifically that Parachutes, Inc. was liable in products liability for its failure to adequately warn of the expert experience level required of parachutists who use the Paradactyl.

Parachutes, Inc. filed a motion for summary judgment in which it argued (1) that the Paradactyl was not defective because of an insufficient warning since the manual provided an adequate warning, and since Prince was already aware of any potential hazard presented by using the Paradactyl (as he had jumped the Paradactyl five times) and (2) that Prince's use of the Paradactyl was not a cause of the accident.

The trial judge granted summary judgment for Parachutes, Inc. In the order, the trial judge stated that:

The Court concludes that defendant had no duty to warn plaintiff of the flight characteristics of the parachute in question, since plaintiff had actual knowledge of such characteristics from having made several jumps with the parachute. The Court also concludes that defendant is entitled to summary judgment on the issue of causation.

Prince appeals from that order.

II. Duty

The first issue this court must address is whether Prince's knowledge of the flight characteristics of the parachute had any effect on Parachutes, Inc.'s duty to warn.

Prince argues that the trial judge's statement implies (1) that Parachutes, Inc. owed a duty to warn that the Paradactyl was inherently unsafe for novices and (2) that once one became familiar with the Paradactyl there was no longer a duty to warn. Prince asserts that the trial judge applied an incorrect analysis of the law. Prince argues: (1) that the subjective knowledge of the user is not relevant to establishing the fact that Parachutes, Inc. had a duty to warn parachutists of the experience level required before one used the Paradactyl; (2) that the subjective knowledge of Prince is only relevant to the defense of comparative negligence; (3) that the extent of Prince's comparative negligence, if any, is a question of fact; and (4) that the proximate cause for Prince's injury is a...