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Cahalane v. Skydive Cape Cod, Inc.

Superior Court of Massachusetts, Middlesex

July 20, 2016

Tricia Cahalane
Skydive Cape Cod, Inc. et al. [1] No. 134251

         Filed July 26, 2016


          DENNIS J. CURRAN, Associate Justice.

         Tricia Cahalane was seriously injured during a tandem skydiving activity conducted under the auspices of the defendant, Skydive Cape Cod, Inc. This action seeks damages for her injuries from Skydive Cape Cod; its owner, Jimmy Mendonca; her skydiving instructor, Marcus Silva; the airport management company, Cape Cod Flying Circus, Inc.; and Flying Circus' owner, Timothy Howard, under theories of gross negligence, strict liability, deceit and misrepresentation. All of the defendants have moved for summary judgment on Ms. Cahalane's claims. They argue, primarily, that Ms. Cahalane voluntarily released them from liability by signing two covenants not to sue before participating in the skydive. The Court agrees.

         For this reason, and for reasons discussed below, the defendants' motions for summary judgment must be ALLOWED.


         On July 25, 2012, Ms. Cahalane visited the Chatham Municipal Airport to participate in a skydive orchestrated by Skydive Cape Cod. Before skydiving, she signed and/or initialed several documents waiving legal action against the defendants in the event of an injury related to the skydive. The crux of these waivers provided that she and her family " assume [ ] the risk of serious injury and/or death and agree never to sue Skydive Cape Cod or any other parties involved." By signing, she acknowledged that she had " been adequately informed about [the] dangers and risks, " and that she was " sufficiently informed to sign agreements with which [she] willingly [gave] up important legal rights."

         These waivers released Skydive Cape Cod from liability even if the participant was injured by its negligence. Moreover, the waivers precluded any future legal argument that the waivers themselves were unenforceable or against public policy, and provided that any " ambiguities be resolved in favor of Skydive Cape Cod, Inc."

         Not only were Skydive Cape Cod and its employees released from liability under these agreements, so too were the " owners and lessees . . . of land upon and from which the parachute jumping and related aircraft operations [were] conducted, " as well as " the owners and operators of the skydiving facility, " and their " officers, directors, agents, servants, employees, shareholders [etc.]." Flying Circus is specifically named in the waiver.

         Ms. Cahalane was given the opportunity to purchase a release from these waivers for $750. She declined to do so. She asked an employee of Skydive Cape Cod what this provision meant and was told that " it was just standard waiver language and that nobody ever bought it." Ms. Cahalane has stated that at the time she was reviewing these contracts, her attention was divided between the waiver terms and an instructional video about skydiving.

         During Ms. Cahalane's skydive, she was attached to Marcus Silva by a harness. As the pair prepared to land, Mr. Silva performed a " hook turn, " a pivot of at least 180 degrees. Hook turns were not prohibited by the United States Parachuting Association at the time of Ms. Cahalane's skydive, but have since been prohibited. When Ms. Cahalane landed, her legs were straight under her. She had been instructed, just before landing, to lift her legs so as to be in a seated position. Ms. Cahalane claims that a sudden gust of wind sent her legs downward. She fractured both femurs.

         Additional relevant material facts may be found below.


          The defendants are entitled to summary judgment if they can demonstrate that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c); Cassesso v. Commissioner of Corr., 390 Mass. 419, 422, 456 N.E.2d 1123 (1983). The defendants, as the moving parties, carry the burden of affirmatively demonstrating the absence of a triable issue, and may satisfy their burden either by submitting affirmative evidence that negates an essential element of the plaintiff's case, or by demonstrating that the plaintiff has no reasonable expectation of proving an essential element of her case at trial. Flesner v. Technical Commc'n Corp., 410 Mass. 805, 809, 575 N.E.2d 1107 (1991). If the defendants meet this burden, the plaintiff is obliged to set forth specific facts showing that there is a genuine issue for trial if she wishes to survive summary judgment. O'Brion, Russell & Co. v. LeMay, 370 Mass. 243, 245, 346 N.E.2d 861 (1976). The plaintiff may not rest on her pleadings and mere assertions of disputed facts. LaLonde v. Eissner, 405 Mass. 207, 209, 539 N.E.2d 538 (1989). The Court reviews the evidence in the light most favorable to the plaintiff as the nonmoving party, but does not weigh evidence, assess credibility or find facts. Community National Bank v. Dawes, 369 Mass. 550, 553, 340 N.E.2d 877 (1976).

         This action is appropriately considered on the defendants' motions for summary judgment where their entitlement to such judgment turns on the interpretation of the waivers signed and initialed by Ms. Cahalane. Liability waivers are interpreted as any other contract, Herson v. New Boston Garden Corp., 40 Mass.App.Ct. 779, 667 N.E.2d 907, and their interpretation is a question of law for the court, unless their language is ambiguous. Lumber Mutual Ins. Co. v. Zoltek Corp., 419 Mass. 704, 707, 647 N.E.2d 395 (1995). Further, ...

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