64 A.D.2d 774 | N.Y. App. Div. | 1978
—Appeal from (1) an order of Supreme Court at Special Term, entered September 26, 1977 in Ulster County, which granted defendants’ motion for summary judgment dismissing the complaint and denied plaintiffs motion for a-dismissal of the affirmative defense of release, and (2) the judgment entered thereon. On November 2, 1976, plaintiff enrolled as a paying student at the Stormville Parachute Training School, which is owned and operated by defendant, William Sweet. He was requested to sign a "responsibility release” before he could receive instructions which he executed. After receiving approximately one hour of on-land training, plaintiff was taken 2,800 feet in the air in an airplane owned by defendant. The airplane was operated by defendant, Robert Thorne, who acted as instructor. Pursuant to instructions, plaintiff jumped from the airplane, and broke his leg when he landed on the ground. Plaintiff instituted this action for damages arising from his injuries alleging (1) that defendants were negligent in not complying with Federal Aviation Administration regulations, and failing to instruct properly; (2) that defendants expressly and impliedly warranted that they were qualified instructors; and (3) that the negligence was gross, wanton and reckless. Defendants’ answer alleged as a first affirmative defense that the "responsibility release” barred plaintiffs action. Special Term granted defendants’ motion for summary judgment based on the first affirmative defense, and dismissed the complaint. The "responsibility release” reads as follows: "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