Wethington v. Swainson

Decision Date18 December 2015
Docket NumberCase No. CIV–14–899–D
Citation155 F.Supp.3d 1173
Parties Holly Wethington and Makenzie Wethington, Plaintiffs, v. Robert Swainson, d/b/a/ Pegasus Airsport Center, Defendant.
CourtU.S. District Court — Western District of Oklahoma

James E. Weger, Jones Gotcher & Bogan, Tulsa, OK, Robert E. Haslam, Haslam & Gallagher, Fort Worth, TX, for Plaintiffs.

Robert Swainson, UK, pro se.

Donald P. Ferguson, Donald P. Ferguson PC, Chickasha, OK, for Defendant.



The determinative issue before the Court concerns the authority of a parent to bind their minor child to an exculpatory agreement, which functions to preclude a defendant's liability for negligence, before an injury has even occurred. Holly and Makenzie Wethington, mother and daughter (Plaintiffs), bring this action against Defendant Robert Swainson, d/b/a/ Pegasus Airsport Center, for injuries suffered by Makenzie while skydiving.1 Under theories of negligence and breach of contract, Plaintiffs contend Defendant (1) provided inadequate training to Makenzie in preparation for the parachute jump, (2) selected a person to provide radio assistance who had no prior experience, (3) provided old equipment that malfunctioned during Makenzie's jump, and (4) permitted Makenzie to use a parachute she was ill-prepared to use and which was inappropriate for her skill level. Before the Court is Defendant's Motion for Summary Judgment [Doc. No. 24], to which Plaintiffs have filed their response in opposition [Doc. No. 30]. The matter is fully briefed and at issue.


The following facts are undisputed. On January 24, 2014, Makenzie, who was then sixteen years old and accompanied by her parents, went to Defendant to learn how to skydive. As part of the registration process, Makenzie executed a Registration Form and Medical Statement. Near the bottom of the document, Makenzie initialed a disclaimer which read:


Makenzie underwent an instruction course that included determining the condition of the parachute after deployment, gaining control and resolving any deployment problems and, if necessary, activating her emergency parachute. In connection with her registration and training, Makenzie and her parents both signed and/or initialed an accompanying document entitled “Agreement, Release of Liability and Acknowledgment of Risk” (the Release). The Release contained numerous exculpatory provisions, which stated in pertinent part:

1. RELEASE FROM LIABILITY. I hereby RELEASE AND DISCHARGE [Defendant] from any and all liability claims, demands or causes of action that I may hereafter have for injuries and damages arising out of my participation in parachuting and other aviation activities, including but not limited to LOSSES CAUSED BY THE NEGLIGENCE OR OTHER FAULT OF THE RELEASED PARTIES .
2. COVENANT NOT TO SUE. I further agree that I WILL NOT SUE OR MAKE A CLAIM AGAINST [Defendant] for damages or other losses sustained as a result of my participation in parachuting and other aviation activities .
* * *
5. ACKNOWLEDGMENT OF RISK. 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 ACKNOWLEDGE ALL RISK OF DEATH OR PERSONAL INJURY SUSTAINED WHILE PARTICIPATING IN PARACHUTING AND OTHER AVIATION ACTIVITIES WHETHER OR NOT CAUSED BY THE NEGLIGENCE OR OTHER FAULT OF THE RELEASED PARTIES, including but not limited to equipment malfunction from whatever cause or inadequate training .
* * *
9. ENFORCEABILITY. I agree that if any portion of this Agreement, Release of Liability and Acknowledgment of risk is found to be unenforceable or against public policy, that only that portion shall fall and all other portions shall remain in full force and effect. ... I also specifically waive any unenforceability or any public policy argument that I may make or that may be made on behalf of my estate or by anyone who would sue because of injury, damage or death as a result of my participation in parachuting and other aviation activities .
10. LEGAL RIGHTS. It has been explained to me, and I expressly recognize that this Agreement, Release of Liability and Acknowledgment of Risk is a contract pursuant to which I am giving up important legal rights, and it is my intention to do so .

(Emphasis added).

Near the bottom of the form, Makenzie read and rewrote the following statement: I hereby certify that I have read this Agreement, Release of Liability and Acknowledgment of Risk, that I fully understand the contents of this contract, that I wish to be bound by its terms, and that I have signed this contract of my own free will .” This statement was signed and dated by Makenzie and initialed by her mother. At the bottom of the Release, under the heading, “RATIFICATION BY PARENT/GUARDIAN if participant is under 18-years-of-age,” both parents attested that they had read the agreement, understood its terms, and agreed to be bound thereby.

Makenzie received four hours of training and instruction. She was assigned a used parachute based on her size and weight. Defendant employed the assistance of Jacob Martinez to act as radio controller. Mr. Martinez's duty was to help guide the jumpers onto the landing area and it was his first time to assist with the radio. Upon Makenzie's jump, her chute malfunctioned, causing her to spin with increasing rapidity towards the ground. Makenzie landed at a high speed and impact, causing her to sustain serious injuries.


“Summary judgment is proper if, viewing the evidence in the light most favorable to the non-moving party, there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Bonidy v. U.S. Postal Service , 790 F.3d 1121, 1124 (10th Cir.2015) (citing Peterson v. Martinez , 707 F.3d 1197, 1207 (10th Cir.2013) ). The Court's function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter asserted, but to determine whether there is a genuine issue for trial. Tolan v. Cotton , ––– U.S. ––––, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014). An issue is “genuine” if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way. Adler v. Wal Mart Stores, Inc ., 144 F.3d 664, 670 (10th Cir.1998). An issue of fact is “material” if under the substantive law it is essential to the proper disposition of the claim. Id . Once the moving party has met its burden, the burden shifts to the nonmoving party to present sufficient evidence in specific, factual form to establish a genuine factual dispute. Bacchus Indus., Inc. v. Arvin Indus., Inc ., 939 F.2d 887, 891 (10th Cir.1991).

The nonmoving party may not rest upon the mere allegations or denials of its pleadings. Rather, it must go beyond the pleadings and establish, through admissible evidence, there is a genuine issue of material fact that must be resolved by the trier of fact. Salehpoor v. Shahinpoor , 358 F.3d 782, 786 (10th Cir.2004). Unsupported conclusory allegations do not create an issue of fact. Finstuen v. Crutcher , 496 F.3d 1139, 1144 (10th Cir.2007).


Defendant contends the Release absolves him from all liability for any injury suffered by Makenzie. Plaintiffs respond that Defendant's motion should be denied because (1) Makenzie was a minor when she signed the Release, rendering it invalid under Oklahoma law,2 (2) Defendant is clearly liable under the theories asserted, and (3) this Court had a duty to protect Makenzie as a minor.

“An exculpatory clause releases in advance the second party for any harm the second party might cause the first party after the contract is entered.” Arnold Oil Properties LLC v. Schlumberger Tech. Corp ., 672 F.3d 1202, 1206–07 (10th Cir.2012) (citation omitted). While generally enforceable, such clauses are considered distasteful to the law.” Schmidt v. United States , 1996 OK 29, ¶ 8, 912 P.2d 871, 874 (emphasis in original).3 Exculpatory clauses are enforceable only if they meet the three following criteria:

(1) Their language must evidence a clear and unambiguous intent to exonerate the would-be defendant from liability for the sought-to-be-recovered damages;
(2) At the time the contract was executed, there must have been no vast difference in bargaining power between parties; and
(3) Enforcement of the clause would not (a) be injurious to public health, public morals or confidence in administration of the law or (b) so undermine the security of individual rights vis-a-vis personal safety or private property as to violate public policy.

Schmidt , 912 P.2d at 874. “The clause will never avail to relieve a party from liability for intentional, willful or fraudulent acts or gross, wanton negligence.” Id . at 874 (citations omitted, emphasis in original); Satellite System, Inc. v. Birch Telecom of Okla., Inc ., 2002 OK 61, ¶ 11, 51 P.3d 585, 589 (“Oklahoma has a strong legislative public policy against contracts which attempt ‘to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another.’) (citing 15 Okla. Stat. § 212 ).

Oklahoma courts, and others, have upheld exculpatory contracts similar to the present Release, i.e., contracts that exculpate the defendant from injuries suffered by plaintiffs while skydiving. See Manning v. Brannon , 1998 OK CIV APP 17, ¶¶ 15–17, 956 P.2d 156, 158–59 (exculpatory contract relieving defendant from any liability for injuries to plaintiff from parachuting activities was valid and enforceable); see also Scrivener v. Sky's the Limit, Inc ., 68 F.Supp.2d 277, 280 (S.D.N.Y.1999) ; Paralift, Inc. v. Superior Court , 23 Cal.App.4th 748, 756, 29 Cal.Rptr.2d 177, 181 (1993) ; Jones v. Dressel , 623 P.2d 370, 376 (Colo.1981). This Court,...

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  • Cahalane v. Skydive Cape Cod, Inc.
    • United States
    • Superior Court of Massachusetts
    • July 20, 2016
    ...courts have considered and rejected the application of gross negligence to a wide array of conduct. See e.g., Wethington v. Swainson, 155 F.Supp.3d 1173, n.5 (W.D.OkIa. 2015) (provision of inadequate training to skydiving customer, appointment of radio assistance employee with no prior expe......

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