July 26, 2016
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS'
MOTIONS FOR SUMMARY JUDGMENT
J. CURRAN, Associate Justice.
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.
this reason, and for reasons discussed below, the
defendants' motions for summary judgment must be ALLOWED.
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."
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."
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
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.
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.
relevant material facts may be found below.
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
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, ...