Wethington et al v. Swainson
Filing
43
ORDER granting in part and denying in part 24 Motion for Summary Judgment. Signed by Honorable Timothy D. DeGiusti on 12/18/2015. (mb)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
HOLLY WETHINGTON and
MAKENZIE WETHINGTON,
Plaintiffs,
v.
ROBERT SWAINSON, d/b/a/
PEGASUS AIRSPORT CENTER,
Defendant.
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Case No. CIV-14-899-D
ORDER
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.
At the time this action was brought, Makenzie was a minor. She has since become
eighteen and will thus be referenced by name.
1
24], to which Plaintiffs have filed their response in opposition [Doc. No. 30]. The
matter is fully briefed and at issue.
BACKGROUND
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:
I FURTHER UNDERSTAND THAT SKYDIVING AND GLIDING
ARE VERY SERIOUS AND HAZARDOUS SPORTS IN WHICH I
COULD SUSTAIN SERIOUS AND PERMANENT INJURIES OR
EVEN DEATH
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
2
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).
3
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.
STANDARD OF DECISION
“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.
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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).
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DISCUSSION
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;
In Oklahoma, a minor is any person under eighteen (18) years of age. 15 OKLA.
STAT. § 13.
2
Notwithstanding this admonition, courts should void contract clauses on publicpolicy grounds “rarely, with great caution and in cases that are free from doubt.”
Union Pacific R. Co. v. U.S. ex rel. U.S. Army Corps of Engineers, 591 F.3d 1311,
1321 (10th Cir. 2010) (quoting Shepard v. Farmers Ins. Co., 1983 OK 103, ¶ 3, 678
P.2d 250, 251).
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(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, likewise, finds the Release is generally valid on its face.
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First, the Release states in clear and unequivocal terms the intention of the
parties to excuse Defendant from liability caused by Defendant’s negligence,
equipment failure, or inadequate instruction. Plaintiffs signed and initialed several
clauses containing the headings, RELEASE FROM LIABILITY, COVENANT
NOT TO SUE, and ACKNOWLEDGMENT OF RISK. Mrs. Wethington and her
husband signed a ratification stating they had read the Release, understood its
terms, and agreed to be bound thereby. Second, there is no evidence of unequal
bargaining power. “Oklahoma courts consider two factors in determining parties’
relative bargaining power: ‘(1) the importance of the subject matter to the physical
or economic wellbeing of the party agreeing to the release, and (2) the amount of
free choice that party could have exercised when seeking alternate services.’”
Arnold Oil, 672 F.3d at 1208 (quoting Schmidt, 912 P.2d at 874). There is no
evidence that skydiving was necessary or important to Plaintiffs’ wellbeing. In
fact, when asked why she wanted to skydive, Makenzie answered, “It’s on my
bucket list.” Moreover, Plaintiffs do not contend Makenzie had no choice but to
agree to be trained by and jump with Defendant as opposed to going elsewhere.
Third, as noted, Oklahoma courts have upheld such releases as not against public
policy. See Manning, 956 P.2d at 159 (“we find a exculpatory contract in the
context of a high-risk sport such as sky diving not against the public policy of this
state.”).
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Plaintiffs nevertheless maintain the Release is voidable because Makenzie
was a minor when she signed it and her subsequent suit disaffirmed the agreement.
It is also true that as a matter of public policy, courts have protected minors from
improvident and imprudent contractual commitments by declaring the contract of a
minor is voidable at the election of the minor after she attains majority. See 15
OKLA. STAT. § 19. “A release is a contract.” Corbett v. Combined Commc’ns Corp.
of Okla., Inc., 1982 OK 135, ¶ 5, 654 P.2d 616, 617. Under Oklahoma law, a
minor’s right to rescind a contract is unaffected by the approval or consent of a
parent. Gomes v. Hameed, 2008 OK 3, ¶ 26, 184 P.3d 479, 489 (citing Gage v.
Moore, 1948 OK 214, ¶ 8, 198 P.2d 395, 396).
In this case, however, Makenzie’s parents also knowingly signed the Release
on her behalf, ratifying and affirming its exculpatory content, and agreeing to be
bound thereby. Nevertheless, Defendant refers this Court to no controlling
authority that permits the parent of a minor to, on the minor’s behalf, release or
waive the minor’s prospective claim for negligence. The Court is unaware of any
such authority, and therefore must predict how the Oklahoma Supreme Court
would rule on the question. Ortiz v. Cooper Tire & Rubber Co., No. CIV-13-32-D,
2015 WL 1498713, at *5 (W.D. Okla. Mar. 31, 2015) (“A federal court sitting in
diversity must apply state law as propounded by the forum’s highest court. Absent
controlling precedent, the federal court must attempt to predict how the state’s
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highest court would resolve the issue.”) (quoting Royal Maccabees Life Ins. Co. v.
Choren, 393 F.3d 1175, 1180 (10th Cir. 2005)).
Although the cases are split on the issue, it is well-recognized that the
majority of state courts considering the issue have held a parent may not release a
minor’s prospective claim for negligence. See Fedor v. Mauwehu Council, Boy
Scouts of Am., 143 A.2d 466, 467-68 (Conn. 1958); Kirton v. Fields, 997 So.2d
349, 356 (Fla. 2008) (pre-injury release executed by parent on behalf of minor is
unenforceable against minor or the minor’s estate in a tort action arising from
injuries resulting from participation in a commercial activity); Hojnowski v. Vans
Skate Park, 901 A.2d 381, 386 (N.J. 2006) (New Jersey public policy prohibits
parents of a minor child from releasing a minor child’s potential tort claim arising
out of the use of a commercial recreational facility); Meyer v. Naperville Manner,
Inc., 634 N.E.2d 411, 414 (Ill. App. Ct. 1994) (“[I]n the absence of statutory or
judicial authorization, a parent cannot waive, compromise, or release a minor
child’s cause of action merely because of the parental relationship . . . . This rule
has also been extended to render ineffective releases or exculpatory agreements for
future tortious conduct by other persons where such releases had been signed by
parents on behalf of their minor children.”); Galloway v. State, 790 N.W.2d 252,
256 (Iowa 2010) (public policy precluded enforcement of parent’s pre-injury
waiver of her child’s cause of action for injuries caused by negligence); Doyle v.
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Bowdoin College, 403 A.2d 1206, 1208 n. 3 (Me. 1979) (“a parent, or guardian,
cannot release the child’s or ward’s, cause of action.”); Childress v. Madison
County, 777 S.W.2d 1, 6-7 (Tenn. Ct. App. 1989); Woodman v. Kera, LLC, 760
N.W.2d 641, 655-56 (Mich. Ct. App. 2008) (pre-injury waivers effectuated by
parents on behalf of their minor children are not presumptively enforceable);
Apicella v. Valley Forge Military Acad. & Junior Coll., 630 F.Supp. 20, 24 (E.D.
Penn. 1985) (“Under Pennsylvania law, parents do not possess the authority to
release the claims or potential claims of a minor child merely because of the
parental relationship.”); Munoz v. II Jaz Inc., 863 S.W.2d 207, 209-10 (Tex. App.
1993) (statute which empowered parents to make legal decisions concerning their
child did not give parents power to waive child’s cause of action for personal
injuries); Scott v. Pacific West Mountain Resort, 834 P.2d 6, 11-12 (Wash. 1992)
(“A parent does not have legal authority to waive a child’s own future cause of
action for personal injuries resulting from a third party’s negligence”).4
These decisions have invalidated such agreements on the grounds that (1)
parents have no such power, or (2) the agreements violate public policy. The
Of the cases enforcing pre-injury releases executed by parents on behalf of minor
children, most involve state-enacted legislation permitting such waiver or the minor’s
participation in school-run or community-sponsored activities. See, e.g., Squires v.
Breckenridge Outdoor Educ. Ctr., 715 F.3d 867, 874 (10th Cir. 2013); Hohe v. San
Diego Unified Sch. Dist., 224 Cal. App. 3d 1559, 1564, 274 Cal. Rptr. 647, 649-50
(1990); BJ’s Wholesale Club, Inc. v. Rosen, 80 A.3d 345, 362 (Md. 2013); Sharon v.
City of Newton, 769 N.E.2d 738, 746-47 (Mass. 2002); Zivich v. Mentor Soccer Club,
Inc., 696 N.E.2d 201, 205 (Ohio 1998).
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underlying rationale employed by many is that courts, acting in the role as parens
patriae, have a duty to protect minors. Oklahoma recognizes its duty to protect
minor children. Baby F. v. Oklahoma County District Court, 2015 OK 24, ¶ 23,
348 P.3d 1080, 1088. In Oklahoma, a parent or guardian may not settle a child’s
claim without prior court approval. See 30 OKLA. STAT. § 4-702 (“A guardian,
with the approval of the court exercising jurisdiction in the suit or proceeding, may
compromise and settle any claim made by, on behalf of or against the ward in such
suit or proceeding.”). As aptly summarized by the Washington Supreme Court in
Scott:
Since a parent generally may not release a child’s cause of action after
injury, it makes little, if any, sense to conclude a parent has the
authority to release a child’s cause of action prior to an injury. In
situations where parents are unwilling or unable to provide for a
seriously injured child, the child would have no recourse against a
negligent party to acquire resources needed for care and this is true
regardless of when relinquishment of the child’s rights might occur.
Scott, 834 P.2d at 11-12 (emphasis added).
Based on the case law in Oklahoma and other jurisdictions, the Court is led
to the conclusion that (1) Makenzie’s acknowledgment and execution of the
Release is of no consequence and does not preclude her claims against Defendant,
and (2) the Oklahoma Supreme Court would find that an exculpatory agreement
regarding future tortious conduct, signed by parents on behalf of their minor
children, is unenforceable. Accordingly, to the extent the Release purports to bar
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Makenzie’s own cause of action against Defendant, it is voidable. Plaintiffs
correctly argue that commencement of this lawsuit constitutes a disaffirmance of
the Release (see, e.g., Gage, supra; Ryan v. Morrison, 1913 OK 598, 135 P. 1049),
and the contract is void ab initio. Grissom v. Beidleman, 1912 OK 847, ¶ 8, 129 P.
853, 857 (“The disaffirmance of a contract made by an infant nullifies it and
renders it void ab initio; and the parties are returned to the same condition as if the
contract had never been made.”). The ratification signed by Makenzie’s parents is
likewise unenforceable as a bar to Makenzie’s claims. The Release, however, is
otherwise conspicuous and clear so as to bar the parents’ cause of action based
upon injury to their child. Therefore, Mrs. Wethington’s causes of action,
individually, are barred.5
CONCLUSION
Defendant’s Motion for Summary Judgment [Doc. No. 24] is GRANTED
IN PART and DENIED IN PART. Defendant’s motion is granted as to Plaintiff
As noted, exculpatory clauses cannot excuse one for, inter alia, gross negligence. The
statutory definition of gross negligence is “want of slight care and diligence.” 25
OKLA. STAT. § 6. Under Oklahoma law, “gross negligence” requires the intentional
failure to perform a manifest duty in reckless disregard of consequences or in callous
indifference to life, liberty, or property of another. Palace Exploration Co. v.
Petroleum Dev. Co., 374 F.3d 951, 954 (10th Cir. 2004). Plaintiffs expressly plead in
their Complaint only causes of action for negligence and breach of contract.
Moreover, although Plaintiffs’ Complaint seeks punitive damages based on
Defendant’s alleged “gross, willful, and intentional acts,” Compl., ¶ 8, Plaintiffs
neither argue nor present any evidence indicating Defendant’s actions constituted
anything beyond ordinary negligence.
5
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Holly Wethington’s claims and denied as to Plaintiff Makenzie Wethington’s claim
for negligence. Since the skydiving contract is rendered void ab initio by means of
Makenzie’s lawsuit, her breach of contract claim cannot proceed as a matter of law.
IT IS SO ORDERED this 18th day of December, 2015.
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