Lead Opinion
OPINION OF THE COURT
We hold that, in the circumstances of this case, a release
Plaintiff Bruce Gross, wishing to learn how to parachute, enrolled in the Stormville Parachute Center Training School, a facility owned and operated by the defendant William Sweet for the purpose of offering instruction in the sport. The ensuing events are essentially undisputed. As a prerequisite for admission into the course, Gross had to pay a fee and sign a form entitled "Responsibility Release”. He was then given the standard introductory lesson, which consisted of approximately one hour of on-land training, including oral instruction as well as several jumps off a two and a half foot table. Plaintiff then was equipped with a parachute and flown to an altitude of 2,800 feet for his first practice jump. Upon coming in contact with the ground on his descent, plaintiff suffered serious personal injuries.
The suit is grounded on negligence, breach of warranty and gross negligence. In the main, plaintiff claims that defendant failed to provide adequate training and safe equipment, violated certain rules and procedures promulgated by the Federal Aviation Administration governing the conduct of parachute jumping schools and failed to warn him sufficiently of the attendant dangers.
Defendant pleaded the release plaintiff had signed and moved for summary judgment, contending that the terms of the release exculpated the defendant from any liability. Plaintiff, in turn, cross-moved to strike this affirmative defense contending, primarily, that the terms of the release did not specifically bar a suit for personal injuries negligently caused by the defendant. He also urged that, as a matter of policy, the release should not be enforceable as between a student and his teacher, a relationship in which one of the parties holds himself out as qualified and responsible to provide training in a skill and the other party relies on this expertise, particularly in the context of an activity in which the degree of training necessary for safe participation is much greater than might be apparent to a novice. Alternatively, plaintiff argues that the release in any event does not excuse defendant’s violation of the Federal Aviation Administration’s regulations governing parachute jumping schools and student
However, Special Term granted defendant’s motion, denied plaintiff’s cross motion and dismissed the complaint. On plaintiff’s appeal from that order, a divided Appellate Division reversed, reinstated the complaint and granted plaintiff’s motion to dismiss the affirmative defense. The appeal is now before us on a certified question: "Was the order of this Court, which reinstated the complaint and granted plaintiff’s motion to dismiss the affirmative defense of release, correct as a matter of law?” Our answer is that it was.
We begin with the proposition, too well settled to invoke any dispute, that the law frowns upon contracts intended to exculpate a party from the consequences of his own negligence and though, with certain exceptions, they are enforceable, such agreements are subject to close judicial scrutiny (Van Dyke Prods. v Eastman Kodak Co.,
Nor need we consider plaintiff’s request that we ignore the release on the grounds that the special relationship of the parties and the public interest involved forbids its enforcement. While we have, for example, had occasion to invalidate such provisions when they were contained in the contract between a passenger and a common carrier (Conklin v Canadian-Colonial Airways,
Not only does this stringent standard require that the drafter of such an agreement make its terms unambiguous, but it mandates that the terms be understandable as well. Thus, a provision that would exempt its drafter from any liability occasioned by his fault should not compel resort to a magnifying glass and lexicon. (Rappaport v Phil Gottlieb-Sattler, Inc.,
By and large, if such is the intention of the parties, the fairest course is to provide explicitly that claims based on negligence are included (see Ciofalo v Vic Tanney Gyms, supra, p 296 [plaintiff "agreed to assume full responsibility for any injuries which might occur to her in or about defendant’s premises, 'including but without limitation, any claims for personal injuries resulting from or arising out of the negligence of the defendant”]). That does not mean that the word "negligence” must be employed for courts to give effect to an exculpatory agreement; however, words conveying a similar import must appear (see Theroux v Kedenburg Racing Assn.,
We are, of course, cognizant of the fact that the general rule of strict judicial construction has been somewhat liberalized in its application to exoneration clauses in indemnification agreements, which are usually "negotiated at arm’s length between * * * sophisticated business entities” and which can be viewed as merely "allocating the risk of liability to third parties between themselves, essentially through the employment of insurance” (Hogeland v Sibley, Lindsay & Curr Co.,
The case before us today obviously does not fit within this exception to the strict legal standard generally employed by the courts of this State under which exculpatory provisions drawn, in broad and sweeping language have not been given effect. For example, agreements to release from "any and all responsibility or liability of any nature whatsoever for any
With all this as background, the language of the "Responsibility Release” in the case before us, must be viewed as no more explicit than that in Boll. In its entirety, it reads: "I, the undersigned, hereby, and by these covenants, do waive any and all claims that I, my heirs, and/or assignees may have against Nathaniel Sweet, the Stormville Parachute Center, the Jumpmaster and the Pilot who shall operate the aircraft when used for the purpose of parachute jumping for any personal injuries or property damage that I may sustain or which may arise out of my learning, practicing or actually jumping from an aircraft. I also assume full responsibility for any damage that I may do or cause while participating in this sport”.
Assuming that this language alerted the plaintiff to the dangers inherent in parachute jumping and that he entered into the sport with apprehension of the risks, it does not follow that he was aware of, much less intended to accept, any enhanced exposure to injury occasioned by the carelessness of the very persons on which he depended for his safety. Specifically, the release nowhere expresses any intention to exempt the defendant from liability for injury or property damages which may result from his failure to use due care either in his training methods or in his furnishing safe equipment. Thus, whether on a running reading or a careful analysis, the
In short, instead of specifying to prospective students that they would have to abide any consequences attributable to the instructor’s own carelessness, the defendant seems to have preferred the use of opaque terminology rather than suffer the possibility of lower enrollment. But, while, with exceptions not pertinent to this case, the law grudgingly accepts the proposition that men may contract away their liability for negligently caused injuries, they may do so only on the condition that their intention be expressed clearly and in "unequivocal terms” (Van Dyke Prods, v Eastman Kodak Co.,
Accordingly, the certified question is answered in the affirmative, and the order of the Appellate Division reversing the grant of summary judgment, reinstating the complaint and dismissing the defense based on the release should be affirmed.
Dissenting Opinion
(dissenting). I have no quarrel with the position of the majority that the release executed by plaintiff on November 1, 1975 should not be given effect to bar recovery in the event he establishes that the injuries he suffered were caused by gross negligence on the part of either or both defendants. I do dissent, however, from the majority’s conclusion that the instrument is insufficient as a matter of law to relieve defendants from liability for fault short of gross misconduct on their part; this conclusion emasculates the instrument and is inconsistent with current law interpreting agreements exonerating a party from liability for his own negligence.
Despite the unlimited language of the release given by plaintiff, by which he explicitly waived "any and all claims [against the present defendants] for any personal injuries or property damage that I may sustain or which may arise out of my learning, practicing or actually jumping from an aircraft”, the majority concludes that the agreement does not exonerate defendants from liability for ordinary negligence on their part. This is said to follow because, although disclaiming a requirement that the particular word "negligence” be included in the release, the majority concludes (p 108) that
This result would have been congenial to the prior view of exoneration agreements under which, because the law looked with disfavor on attempts of a party to avoid liability for his own fault, there was insistence that from the agreement "it must be absolutely clear that such was the understanding of the parties” (Van Dyke Prods. v Eastman Kodak Co.,
The disposition of the present appeal by the majority is wholly consistent with Thompson-Starrett and its progeny; indeed its holding is predicated on Thompson-Starrett analysis (p 107). This court, however, has long since repudiated the principle of Thompson-Starrett. In Kurek v Port Chester Housing Auth. (
There is no reason to believe that the development of the law with respect to interpretation of agreements by which a party is relieved of liability for his own negligence is not equally applicable to agreements which take the form of release as well as to those providing indemnification. The principles involved — that contracts should not be so construed as to make them meaningless and that the intent of the parties is to be drawn from the entire instrument, not from the presence or absence of a particular talismanic word or term — are equally appropriate and, when applied to the case before us, lead inescapably to the conclusion that the instrument executed by this plaintiff prior to his undertaking instruction at the hands of defendants served to exonerate the latter from the ordinary negligence claims plaintiff presently asserts.
The activity on which plaintiff was. about to embark under the tutelage of defendants was a hazardous one at best, but virtually the only claims that he might have had against them should he sustain personal injuries or property damage would be claims resulting from fault or negligence of defendants.
As the majority observes, the relationship between these parties is not such as to give rise to a public interest precluding enforcement of the release executed by plaintiff. Except as to the cause of action predicated on the alleged claim of gross negligence, I would therefore reverse the order of the Appellate Division, reinstate the affirmative defense of release pleaded by defendants, and grant summary judgment in favor of defendants dismissing the causes of action alleged in the complaint.
Chief Judge Cooke and Judges Gabrielli and Wachtler concur with Judge Fuchsberg; Judge Jones dissents and votes to reverse in a separate opinion in which Judges Jasen and Meyer concur.
Order affirmed, with costs. Question certified answered in the affirmative.
Notes
Thus in Kaufman v American Youth Hostels (