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DIEDRICH v. WRIGHT

July 7, 1982

ELLEN DIEDRICH, PLAINTIFF,
v.
GEORGE W. WRIGHT AND RANDALL GADDINI, D/B/A BELVIDERE PARACHUTE CENTER; AND PAUL KEVIN THOMPSON, DEFENDANTS.



The opinion of the court was delivered by: Moran, District Judge.

MEMORANDUM AND ORDER

Plaintiff Ellen Diedrich brought this action against defendants George W. Wright and Randall Gaddini, d/b/a Belvidere Parachute Center, and Paul Kevin Thompson,*fn1 an employee of the Center, seeking compensation for injuries she sustained when making a parachute jump in June 1976. In her complaint plaintiff alleged that defendants failed to provide an adequate course of ground instruction, carelessly and negligently provided unsafe equipment for her jump, and violated numerous rules and procedures promulgated by the Federal Aviation Administration governing the conduct of parachute jumping schools.

In their answers to the complaint all defendants raised, inter alia, two defenses:*fn2 (1) plaintiff assumed the risk of injury and (2) a release form executed by plaintiff exonerates defendants from any liability. Plaintiff has moved for partial summary judgment, requesting the court to declare, as a matter of law, that neither defense is valid. See 10 Wright & Miller, Federal Practice & Procedure, § 2737 (1973). For the reasons discussed below, the motion is granted and the affirmative defenses are stricken.

I.

INTRODUCTION

Most of the facts underlying this action are not in dispute. On June 6, 1976 Ellen Diedrich first visited the Belvidere Parachute Center to watch a friend make a parachute jump. Since there was room on the plane plaintiff was permitted to view the jump from the air. First, however, she was required to sign a release form exonerating the parachute center from liability for any injuries. In her deposition testimony plaintiff stated that she believed that the release was solely for the limited purpose of permitting her to go up in the airplane:

    "A. ___ they gave me this thing. They had me sign something
  so that I could go up in the plane.
    Q. So your understanding was this was solely for the purposes
  of going up in the plane? (sic)

A. Right."

(Dep. of E. Diedrich, p. 35).

The release form, headlined "Release, Waiver and Assumption of Risk," and captioned "Read This Carefully Before Signing," provided as follows:

    "I . . . agree that my participating in sport parachuting
  activities . . . shall be at my own risk. I realize and
  acknowledge that sport parachuting contains certain
  unforeseen and unforeseeable risks and hazards over which
  Belvidere Parachute Center has no control and I voluntarily
  assume such hazards and risks.
    "Belvidere Parachute Center shall not be liable to me on
  account of any personal injury sustained by me in, on, or
  about the premises, aircraft or skies above or adjacent to
  Belvidere Parachute Center.
    ". . . I agree on behalf of myself, my heirs, survivors or
  assignees, to fully and forever release, discharge, indemnify
  and hold harmless George Wright, Randall Gaddini, d/b/a
  Belvidere Parachute Center, its agents, servants and
  employees from any and all claims, demands, damages, rights
  of action or causes of action, present or future, whether the
  same be

  known, anticipated or unanticipated, resulting from or
  arising out ...

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