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01/10/89 Stephen Falkner, Adm'r of v. Hinckley Parachute Center

January 10, 1989

STEPHEN FALKNER, ADM'R OF THE ESTATE OF ROBERT D. FALKNER, PLAINTIFF-APPELLANT

v.

HINCKLEY PARACHUTE CENTER, INC., ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

533 N.E.2d 941, 178 Ill. App. 3d 597, 127 Ill. Dec. 859 1989.IL.11

Appeal from the Circuit Court of Kane County; the Hon. James Quetsch, Judge, presiding.

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. McLAREN and DUNN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Plaintiff, Stephen Falkner, administrator of the estate of Robert D. Falkner, appeals from an order of the circuit court of Kane County granting a motion for summary judgment in favor of defendants, Hinckley Parachute Center, Inc. (Hinckley Parachute), and James E. Baron, its president, in plaintiff's wrongful death and survival actions alleging negligence and wilful and wanton conduct arising from Robert D. Falkner's death in a parachute jump during a course operated by defendants. The circuit court found that the actions were barred based upon an agreement containing exculpatory clauses signed by the deceased.

Plaintiff raises three issues for review: (1) whether genuine issues of material fact exist concerning what risks were assumed and what acts were exempted from liability based on the exculpatory clauses; (2) whether the exculpatory clauses were too vague and uncertain to exempt defendants from liability for the activities alleged to have caused decedent's death; and (3) whether, as to the wilful and wanton counts, the exculpatory clauses are void as contrary to public policy.

Plaintiff's complaint, as amended, alleged that Hinckley Parachute operates a school for the instruction and training of students in parachuting and sky diving; that James E. Baron, president and principal instructor, supervises all aspects of the school; that Hinckley Parachute provides its students with the parachute equipment, aircraft, and supervising personnel necessary for their training; and that Robert D. Falkner, while a student of Hinckley Parachute and while under the instruction and supervision of defendants, fell to his death on July 6, 1983, because the parachute provided by defendants became entangled and did not slow his fall. Plaintiff further alleged in counts I and II of the wrongful death (Ill. Rev. Stat. 1983, ch. 70, pars. 1, 2) and survival actions (Ill. Rev. Stat. 1983, ch. 110 1/2, par. 27-6) that defendants were negligent by improperly and inadequately instructing decedent in the type of parachute equipment he was given to use, by improperly and inadequately warning decedent of the hazards of jumping with the type of parachute equipment he was given to use, and by improperly and carelessly giving deceased a parachute which contained a bridle cord that was too long for a novice parachutist of his size, weight, and experience. In counts III and IV, also wrongful death and survival actions, plaintiff alleged wilful and wanton misconduct based upon defendants' conscious and knowing disregard of a substantial and unjustifiable risk regarding the conditions and circumstances existing at the time of the occurrence which was a gross deviation from the standard of care which an approved United States Parachute Association instructor would exercise in a similar situation. Plaintiff, thereafter, filed a more definite statement of the actions alleged to be wilful and wanton in counts III and IV.

Following the filing of their answer, defendants filed a motion for summary judgment. Attached thereto was a copy of a one-page document entitled "Hinckley Parachute Center, Inc. Training Agreement" (training agreement) signed by decedent and the affidavit of Drew Dunham, which states that Dunham witnessed the signing of the training agreement by decedent. Also referred to in the motion was a previously filed affidavit by James E. Baron which states that he informed all students that they must read and sign the training agreement before they can participate in any parachuting activities.

In response, plaintiff filed a memorandum of law incorporating previous arguments made in opposition to prior motions and the affidavit of Doris M. Falkner, decedent's widow. Pertinent hereto, the affidavit states that decedent was 65 years old at the time of his death; that he had been a commissioned officer and pilot in World War II and the Korean War; that he had limited parachute training during World War II in which he had jumped three to four times, but never had free-fall instruction and had not jumped for 39 years until his involvement with Hinckley Parachute; and that Hinckley Parachute distributed an advertising brochure which, in part, indicates the sport of parachuting is generally safe if proper procedures are followed.

The circuit court granted defendants' motion for summary judgment on all four counts finding that the exculpatory clauses in the training agreement barred plaintiff's decedent from recovery for the occurrence complained of.

The training agreement signed by decedent contains the following pertinent clauses:

"3. THE PARACHUTE JUMP. The HINCKLEY PARACHUTE CENTER INC. will provide equipment, aircraft, and supervisory personnel for the ...


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