Schutkowski v. Carey

• Decision Date: 30 September 1986
• Docket Number: No. 85-101,85-101
• Citation: 725 P.2d 1057
• Parties: Barbara SCHUTKOWSKI, Appellant (Plaintiff), v. Dwain CAREY and Robert D. Rodekohr, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 1057

725 P.2d 1057

Barbara SCHUTKOWSKI, Appellant (Plaintiff), v. Dwain CAREY and Robert D. Rodekohr, Appellees (Defendants).

No. 85-101.

Supreme Court of Wyoming.

Sept. 30, 1986.

Douglas J. Moench, Jr., of Cole and Moench, Cheyenne, for appellant.

Paul B. Godfrey and Julie Nye Tiedeken of Godfrey & Sundahl, Cheyenne, for appellee Robert D. Rodekohr.

George Zunker of Urbigkit, Whitehead, Zunker & Davidson, Cheyenne for appellee Dwain Carey.

Before THOMAS, C.J., BROWN ^* and CARDINE, JJ., and ROSE and ROONEY, JJ. (Retired).

BROWN, Justice.

Appellant Barbara Schutkowski, a sky diving student injured during her first jump, filed a negligence complaint against appellees Dwain Carey and Robert Rodekohr, her skydiving instructors. ¹ The district court, in a summary judgment for appellees, found that a "Release and Indemnity Agreement" signed by appellant excused the instructors from all liability for injury, including consequences arising from negligence. On appeal Ms. Schutkowski raises the following issues:

"1. Did the trial court err in determining that the contracting parties intended for the release to excuse appellees from liability caused by their negligence?

"2. Did error occur in failing to strictly construe the release as merely excusing liability for injuries that ordinarily and inevitably occur without fault?

"3. Did the trial court err in following the rationale of a minority view?"

We will affirm.

The basic facts are undisputed. Appellant employed appellees to teach her to sky dive. Before her first jump, she signed an agreement releasing appellees from all claims for personal injury resulting from parachuting and related activities. On July 1, 1979, appellant made her first parachute jump, flying with instructor Carey and pilot Rodekohr. During a difficult landing some distance from the target Ms. Schutkowski suffered back, arm and leg injuries. She filed an action charging that Carey and Rodekohr were negligent in failing to warn her of the risks of parachuting, and failing to adequately instruct and direct her during sky diving procedures.

In their answers to the complaint and subsequent motions for summary judgment, appellees contended that appellant's claims were barred by the liability release agreement. In this document Ms. Schutkowski acknowledged that for consideration and permission to participate in the course,

" * * * I Barbara Schutkowski of Cheyenne, Wy for myself, my heirs * * * do hereby fully and forever release and discharge the said Cheyenne Parachute Club and Bob Rodekohr, Cheyenne, Wyo, and their divisions, and their employees * * * and all persons whomsoever directly or indirectly liable, from any and all other claims and demands, actions, and causes of action, damages, costs, loss of services, expenses, and any and all other claims of damages whatsoever both in law and in equity, on account "The terms of this release and indemnification agreement are contractual and not a mere recital and contain the entire agreement between the parties hereto."

of, or in any way resulting from, personal injuries, conscious suffering, death, or property damages sustained by me, arising out of aircraft flights, parachute jumps, or any other means of lift, ascent, or descent from an aircraft * * * on the ground or in flight, and meaning and intending to include herein all such personal injuries, conscious suffering, death or property damage resulting from or in any way connected with or arising out of instructions, training, and ground or air operations incidental thereto, and in consideration of the foregoing premises I * * * hereby expressly stipulate, covenant and agree to indemnify and hold forever harmless the said Cheyenne Parachute Club * * * from any and all actions * * * and any and all other claims for damages whatsoever which may hereafter arise * * * from my negligent, willful or wanton, or intentional act or actions. (Emphasis added.)

The district court found that the agreement released appellees from liability for negligence. An order granting summary judgment for defendants was entered from which Ms. Schutkowski appeals.

SUMMARY JUDGMENT

The standard of review for summary judgment appeals has been well established by this court.

"When reviewing a summary judgment on appeal, we review the judgment in the same light as the district court, using the same information. Randolph v. Gilpatrick Construction Company, Inc., Wyo., 702 P.2d 142 (1985); and Lane Company v. Busch Development, Inc.., Wyo., 662 P.2d 419 (1983). A party moving for summary judgment has the burden of proving the nonexistence of a genuine issue of material fact. Dudley v. East Ridge Development Company, Wyo., 694 P.2d 113 (1985). Material fact has been defined as one which, if proved, would have the effect of establishing or refuting an essential element of the cause of action or defense asserted by the parties. Samuel Mares Post No. 8, American Legion, Department of Wyoming v. Board of County Commissioners of the County of Converse, Wyo., 697 P.2d 1040 (1985). Upon examination of a summary judgment, we view the record from the vantage point most favorable to the party opposing the motion, giving him all favorable inferences which may be drawn from the facts. Bancroft v. Jagusch, Wyo., 611 P.2d 819 (1980)." Garner v. Hickman, 709 P.2d 407, 410 (1985).

The litigants here agree on the essential facts and admit that the release was signed by appellee. However, they disagree on the interpretation of the contract. Interpretation and construction are questions of law for the court to decide. Amoco Production Company v. Stauffer Chemical Company of Wyoming, Wyo., 612 P.2d 463 (1980). Therefore, issues concerning the validity of the exculpatory clause and the intent of the agreement were properly before the court on summary judgment. Product Research Associates v. Pacific Telephone & Telegraph Company, 16 Cal.App.3d 651, 94 Cal.Rpt. 216 (1971); Jones v. Dressel, Colo., 623 P.2d 370 (1981); Ciofalo v. Vic Tanney Gyms, 10 N.Y.2d 294, 220 N.Y.S.2d 962, 177 N.E.2d 925 (1961).

EXCULPATORY CLAUSE

Wyoming courts enforce exculpatory clauses releasing parties from liability for injury or damages resulting from negligence if the clause is not contrary to public policy. Kost v. First National Bank of Greybull, Wyo., 684 P.2d 819 (1984); Tate v. Mountain States Telegraph and Telephone Company, Wyo., 647 P.2d 58 (1982); Brittain v. Booth, Wyo., 601 P.2d 532 (1979). Generally, specific agreements absolving participants and proprietors from negligence liability during hazardous recreational activities are enforceable, subject to willful misconduct limitations. Cain v. Cleveland Parachute Training Center, 9 O.R.B. 28, 9 Ohio App.3d 27, 457 N.E.2d 1185 (1983). The Ohio court observed in Cain:

"A participant in recreational activity is free to contract with the proprietor of such activity so as to relieve the proprietor of responsibility for damages or injuries to the participant caused by the negligence of the proprietor, except when caused by willful or wanton misconduct. [Citations omitted.]" Id., 457 N.E.2d at 1187.

In Jones v. Dressel, supra, the Colorado Supreme Court developed a four-part test to determine whether a negligence exculpatory clause is valid. Pennsylvania courts have also adopted standards which closely parallel those in the Colorado case. Liability Assurance Corporation v. Greenville Business Men's Association, 423 Pa. 288, 224 A.2d 620 (1966). In reaching its determination a court considers (1) whether a duty to the public exists; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language. Only exculpatory agreements meeting these requirements are enforceable. Jones v. Dressel, supra.

Private recreational businesses generally do not qualify as services demanding a special duty to the public, nor are their services of a special, highly necessary nature. Jones v. Dressel, supra. The California Supreme Court, in Tunkl v. Regents of University of California, 60 Cal.2d 92, 32 Cal.Rpt. 33, 36, 383 P.2d 441, 445-446, 6 A.L.R.3d 693 (1963), described the elements of an agreement affecting the public interest:

"[The agreement] concerns a business of a type generally thought suitable for public regulation. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. The party holds himself out as willing to perform this service for any member of the public who seeks it * * *. As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. * * * "

The service provided by appellees was not a matter of practical necessity for any member of the public. It was not an essential service, so no decisive bargaining advantage existed. Further, no evidence suggests that appellant was unfairly pressured into signing the agreement or that she was deprived of an opportunity to understand its implications. The agreement meets the first three criteria for determining if the exculpatory clause is valid.

INTENT TO EXCUSE LIABILITY FOR NEGLIGENCE

Finally, we must determine if the release clearly shows the intent to eliminate appellee's liability for negligent acts. Public policy disfavors clauses exculpating liability for negligence, and a court must closely scrutinize such clauses. Kansas City Power & Light Company v. United Telephone Company of Kansas, Inc., 458 F.2d 177 (10th Cir.1972); Gross v. Sweet, 49 N.Y.2d 102, 424 N.Y.S.2d 365, 400 N.E.2d 306 (1979); Atlas Mutual Insurance Company v. Moore Dry Kiln Company, 38 Or.App. 111, 589 P.2d 1134 (1979). The exculpatory clause must clearly and unequivocably...