Massachusetts Appeals Court Pulls the Secondary Chute in Interpreting Skydiving Waiver
On July 25, 2012, Tricia Cahalane ("Cahalane" or "Plaintiff") participated in a tandem skydiving jump at Chatham Municipal Airport in Cape Cod with Skydive Cape Cod ("SCC"). She had her legs up in anticipation of landing, when suddenly a pull from the back of the chute forced her legs straight downward. Blindsided by the pull, Cahalane fractured both of her femurs.
There are over 200 skydiving centers or "drop zones" ("DZs") affiliated with United States Parachute Association ("USPA") across the United States. From these DZs, approximately 500,000 people in the U.S spread their wings annually. On its website, the USPA lists 12 published skydiving accident reports from 2018, two-thirds of which were fatal. Needless to say, while a singular thrill, skydiving can be a dangerous activity.
In January 2013, Calahane brought a lawsuit in Massachusetts state court against the individuals and entities whose alleged negligence caused her injuries during the jump (Cahalane v. Skydive Cape Cod, Inc., No. 1381CV00207 (Mass. Super. Ct., Middlesex Cty filed Jan. 17, 2013)). Cahalane sued for damages in Massachusetts Superior Court against various parties and alleged, among other things, gross negligence and reckless conduct, as well as misrepresentation. The defendants dressed a full roster. Cahalane claimed damages from SCC and its owner, Jimmy Mendonca; Marcus Silva ("Silva"), her skydiving instructor at SCC; Cape Cod Flying Circus Inc. ("Flying Circus"), the airport management company, and Timothy Howard, Flying Circus' owner and Chatham Airport manager. For their part, the defendants brought counterclaims that sought to enforce waivers of liability, indemnification agreements and covenants not to sue that plaintiff executed before her tandem parachute jump. The waiver read, in pertinent part:
"I hereby recognize that this agreement is a Contract, which includes provisions by which I have released any and all claims against the Released Parties resulting from my parachuting and related activities, included [sic] any claims caused by the negligence or gross negligence of the Released Parties."
In addition, Cahalane copied and signed the following statement: "I realize that skydiving, parachuting, flying and all of its related activities are inherently dangerous activities which may result in my serious injury or even death." Cahalane was given the opportunity to purchase a release from these waivers for $750, but she declined to do so.
According to the court, at some point prior to Cahalane's ill-fated jump, Jimmy Mendonca, the owner of SCC, claimed that he checked the speed of the wind and found it within acceptable limits. However, plaintiff introduced evidence from the Federal Aviation Administration (FAA) that demonstrated the wind may have gusted over twenty-five miles per hour on the day of the jump – speeds at which skydiving apparently is unsafe. Moreover, according to another witness, Calahane's instructor, Marcus Silva, claimed that he warned Mendonca that the wind conditions were dangerous before Cahalane's jump, but that Mendonca ignored such warnings and allegedly told Silva to complete the jump and perform a "hook turn" on landing to compensate for the wind. A hook turn is skydiving jargon for a canopy maneuver that results in a steep dive. The move is potentially dangerous in certain situations because the canopy turns, dives and picks up speed as the jumper swings out from under the canopy. For this reason hook turns are "highly disfavored" by the USPA at a low altitude. As such, before Cahalane and Silva landed their tandem jump, Silva purportedly made a 90-degree turn approximately 500 feet off the ground. As Cahalane and Silva swung out from under the canopy they picked up speed, and Cahalane claimed that the force of the turn caused her legs to straighten as the tandem duo impacted the ground.
In July 2016, the Superior Court granted the defendants' motion for summary judgment based upon the waiver signed by Cahalane prior to the jump that released the defendants from any claims resulting from "parachuting and related activities," and rejected arguments that the waiver was unenforceable and unconscionable. The lower court also found that the plaintiff did not plead sufficient evidence of gross negligence, particularly since, in the court's mind, the wind speed was not readily established to be unsafe at the time of the jump.
Subsequently, plaintiff appealed the grant of summary judgment to the defendants, contending that: (1) the waiver was unenforceable; and (2) there was a dispute of material fact as to whether the defendants were grossly negligent.
On review, the appeals court rejected Cahalane's challenge to the enforceability of the waiver she signed prior to the jump, stating that the waiver was not obtained by fraud or coercion, was presented adequately to Calahane, and that Calahane knew that skydiving was a dangerous activity. However, the court cautioned that, under Massachusetts law, "although a party may exempt itself from liability caused by its ordinary negligence, a waiver cannot shield a party from responsibility for its gross negligence or reckless or intentional conduct."
Ultimately, the appeals court overturned the Superior Court's decision for summary judgment on the grounds that the circumstances of the landing may have supported a claim for gross negligence, and held that a jury should decide the issue. (Cahalane v. Skydive Cape Cod, Inc., No. 17-P-706 (Mass. App. Ct. July 3, 2018) (summary decision)). For an act to count as gross negligence, the court stated that it must exceed the threshold of a "legal duty beyond a mere failure to exercise ordinary care." In short, the court held that the Superior Court overshot the mark in finding that all material facts had been established pertaining to the circumstances of the jump and whether such actions constituted gross negligence. The material facts highlighted by the appeals court were:
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The wind conditions and whether the evidence established that the winds were gusting at an unsafe speed at the time of the jump;
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Jimmy Mendonca's (SCC owner) alleged knowledge of the wind conditions and whether or not he ordered the instructor to proceed with the tandem jump in less than ideal weather conditions;
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The skydiving instructor Silva's execution of the jump and hook turn. According to the court, "a reasonable jury could find that the instructor's decision to perform a hook turn in the moments before landing was grossly negligent…if the jury were to conclude that the low hook turn violated an industry standard and [the instructor] Silva had a lapse of care in a situation of 'great and immediate danger'"; and
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The airport manager's potential knowledge of SCC's past unsafe practices and his alleged failure to report such purported FAA violations to the authorities.
Overall, the court threw a red flag and held that the case should go under further review. In late June, the parties met for a status conference and it is not clear if they reached a settlement of plaintiff's claims or whether a jury will ultimately rule on this high-flying, fateful incident.