United States District Court, Northern District of Illinois, E.D
July 7, 1982
ELLEN DIEDRICH, PLAINTIFF,
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
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.
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)
(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
known, anticipated or unanticipated, resulting from or
arising out of my use or intended use of the premises,
facilities, services or equipment of Belvidere Parachute
(Exhibit A, attached to defendants' memorandum in support of
motion for partial summary judgment.) Ms. Diedrich signed the
form, paid the five dollars fare to ride in the aircraft, and
observed her friend's jump.
Six days later, on June 12, 1976, plaintiff returned to the
center to take ground instruction on making a jump. She paid
$60 for the course and was again given a release form identical
to the one she had signed on June 6. This time, however, for
undisclosed reasons, Ms. Diedrich did not sign the form.
Nonetheless, she was allowed to take a lesson from Instructor
Paul K. Thompson, an employee of the Belvidere Parachute
Center. The students were not allowed to jump on June 12 due to
wind conditions, and thus plaintiff returned to the Center on
June 19 for her first jump. She received some more instruction
and was given a parachute, packed by defendant Wright under the
supervision of defendant Gaddini. After the plane carrying the
students reached an altitude of approximately 2800 feet,
Diedrich jumped. Tragically, the parachute lines were crossed
or "lined-over" and the chute failed to fully open. As a result
Diedrich fell to the ground, received severe and permanent
injuries and is now a paraplegic.
THE AFFIRMATIVE DEFENSES
A. Assumption of Risk
Defendants maintain that because plaintiff was fully aware of
the hazards inherent in skydiving, she assumed the risk of any
injury and therefore is precluded from holding others liable
for her misfortunes. We emphatically disagree.
Although assumption of risk is a defense in a products
liability action, Russo v. The Range, Inc., 76 Ill. App.3d 236,
238, 32 Ill. Dec. 63, 395 N.E.2d 10 (1st Dist. 1979), the
defense is a fairly limited one.
"Whether a plaintiff has assumed the risk of an activity
involves a two-step inquiry, with the burden of proof on the
defendant. First, the defendant must show that the plaintiff
actually knew of the defective condition, with such knowledge
determined on the basis of a subjective, rather than an
objective test. Second, the defendant must show that, despite
awareness of the danger, the plaintiff deliberately and
unreasonably exposed himself to the danger . . . both
appreciation of the danger and a deliberate voluntary act
amounting to a "considered choice" must be proved by the
defendant to present an assumption of the risk defense."
McCracken v. Westinghouse Air Brake Company, Inc.,
103 Ill. App.3d 26, 58 Ill.Dec. 507, 510, 430 N.E.2d 539
, 542 (5th
Dist. 1981). See also Niffenegger v. Lakeland Construction
Co., 95 Ill. App.3d 420, 425, 50 Ill.Dec. 945, 420 N.E.2d 262
(2d Dist. 1981).
Judged by these standards defendants' arguments fall far short
of establishing that plaintiff assumed the risk of her
accident. The relevant inquiry is not whether plaintiff
recognized the hazards of skydiving, rather, the question is
whether she knew that the parachute was defective or that the
instruction was inadequate. There is no dispute that plaintiff
did not know, and indeed had no way of knowing either of these
matters, and thus "assumption of the risk is not available as a
defense and should be stricken as a matter of law." McCracken
v. Westinghouse Air Brake Co., supra, 58 Ill.Dec. at 510, 430
N.E.2d at 542.
B. The Release Form
The argument that plaintiff waived her right to hold defendants
liable by execution of a release form presents a far more
difficult issue than the assumption-of-risk defense. In
resolving this question we assume, without deciding, that the
contract signed on June 6 applied to all activities plaintiff
undertook after that date at Belvidere
Parachute Center.*fn3 Nevertheless, we find that the
exculpatory clause, as a matter of law, does not preclude an
action based on negligence or strict liability.
Illinois courts have long recognized the validity of
exculpatory clauses that relieve a party from liability, unless
"(1) it would be against the settled public policy of the state
to do so, or (2) there is something in the social relationship
of the parties militating against upholding the agreement."
Jackson v. First National Bank, 415 Ill. 453, 460,
114 N.E.2d 721, 725 (1953). See also Evra Corp. v. Swiss Bank Corp.,
522 F. Supp. 820, 832 (N.D.Ill. 1981). Such a clause, however, must
be strictly construed against the party seeking immunity from
liability, and the intentions of the parties should be
delineated "with the greatest of particularity." Berwind
Corporation v. Litton Industries, 532 F.2d 1, 4 (7th Cir.
Construing the release at issue here in light of these
principles, we find that the clause does not bar plaintiff from
suing for injuries allegedly incurred by defendant's
negligence. While the contract need not specifically contain
the word "negligence," the unmistakable intent of the parties
to preclude liability in such circumstances must be evident.
See Kurek v. Port Chester Housing Authority, 18 N.Y.2d 450,
456, 276 N.Y.S.2d 612, 615, 223 N.E.2d 25, 27 (1966). Although
the release intimates in general terms that defendants are to
be held harmless from any and all claims, this phrase is
qualified by the more specific terminology which precedes it.
See Bahamas Agricultural Industries Limited v. Riley Stoker
Corp., 526 F.2d 1174, 1179 (6th Cir. 1975). See also Berwind
Corp. v. Litton Industries, Inc., supra, at 6-7.
The only explicit reference to fault comes in the first
paragraph of the contract, and it provides that Ms. Diedrich
assumed those "certain unforeseen and unforeseeable risks and
hazards over which Belvidere Parachute Center has no control."
Reading the general contract terms in light of this specific
unambiguous language, and keeping in mind both the disfavor
with which the law views contracts intending to exculpate a
party from the consequences of his own negligence and the
activities contemplated when the release is signed, the only
reasonable interpretation of the release is that it exempts
defendants from injuries that ordinarily occur, without any
fault of the defendant, in such a hazardous sport. In reaching
this conclusion we are guided by the findings of the New York
Court of Appeals when faced with a virtually identical fact
situation. After considering a release form that purported to
waive any claims against the parachute center, the court wrote:
Assuming that this language alerted the plaintiff to the
dangers inherent in parachute jumping and that he entered into
the sport with apprehension of the risks, it does not follow
that he was aware of, much less intended to accept, any
enhanced exposure to injury occasioned by the carelessness of
the very persons on which he depended for his safety.
Specifically, the release nowhere expresses any intention to
exempt the defendant from liability for injury or property
damages which may result from his failure to use due care
either in his training methods or in his furnishing safe
equipment. Thus . . . the agreement could most reasonably be
taken merely as driving home the fact that the defendant was
not to bear any responsibility for injuries that ordinarily and
inevitably would occur, without any fault of the defendant, to
those who participate in such a physically demanding sport.
In short, instead of specifying to prospective students that
they would have to abide any consequences attributable to the
instructor's own carelessness, the defendant seems to have
preferred the use of opaque terminology rather than suffer the
possibility of lower enrollment. But, while, with exceptions
not pertinent to
this case, the law grudgingly accepts the proposition that men
may contract away their liability for negligently caused
injuries, they may do so only on the condition that their
intention be expressed clearly and in "unequivocal
terms" . . . .
Gross v. Sweet, 49 N.Y.2d 102, 424 N.Y.S.2d 365, 369-70,
400 N.E.2d 306, 310-11 (Ct. App. 1979) (citations omitted).
Because we find that the release does not bar plaintiff's
negligence claim, we need not consider plaintiff's other
arguments for rejecting the affirmative defense. We agree,
moreover — and defendants apparently do not dispute — that an
exculpatory clause cannot bar an action based on strict
liability. See Sipari v. Villa Olivia Country Club,
63 Ill. App.3d 985, 20 Ill.Dec. 610, 380 N.E.2d 819 (1978).
Accordingly, plaintiff's motion for partial summary judgment is
granted and the affirmative defenses of assumption of risk and
the release form are hereby stricken.