Schutkowski v. Carey
725 P.2d 1057
Wyo.
1986
Check Treatment

*1 decision in selection intelligent mit an

process.” SCHUTKOWSKI, Barbara Appellant (Plaintiff), My supported by many authori- view is example, ties. For 15-2.4 of the Ameri- can Bar Standards Criminal Association Dwain CAREY Robert D. 1982) (2nd states: Justice ed. Rodekohr, Appellees “A disclose voir dire examination should (Defendants). grounds challenge for cause fa- No. 85-101. intelligent perempto- cilitate exercise of ” See ry challenges. Supreme Wyoming. Court of Peacher, Va., S.E.2d also W. State Sept. Mo., Brown, State v. S.W.2d 797

VOIR DIRE GUIDELINES always

There will be some veniremen jury duty by claiming they

who try to avoid ways there are biased. But better

dealing problem tainting the with the than State, jury panel.

entire su Patterson v. (Brown, J.,

pra, specially 691 P.2d at

concurring). judges may Trial inform

jurors that who are serve those unable to panel present eligible will be

selection on next case. 1 — 11— Section judges emphasize W.S.1977. The can importance jury service.

And, necessary, they reprimand can they

shirkers chambers after are ex

cused.

A right criminal defendant has a to an

impartial State, jury. Collins Dowd, Irvin v. 1639, 1642,

U.S. 6 L.Ed.2d 751 S.Ct. judge’s duty It is the trial to make gets

sure one. that he Redwine v. Fith

ugh, Wyo. fact, Supreme the United States judge

Court has said that a trial must be protecting rights the ac

zealous during jury

cused selection. Dennis States,

United U.S. 70 S.Ct.

521, 523, judge 94 L.Ed. 734 A trial impatience

should not either his allow own annoyance jurors

or his with interfere responsibility impar

with his to ensure an jury.

tial have and re would reversed trial.

manded for a new *2 release to

for the excuse from by negligence? caused their in failing strictly “2. Did error occur to merely construe the release as excusing injuries ordinarily for and inevitably occur without fault? following “3. Did the trial court err in minority the rationale of a view?” affirm. We will undisputed. Appel- The basic facts are employed appellees lant to her sky teach to jump, dive. Before her first she releasing appellees all from personal injury resulting claims for parachuting and July related activities. On 1, 1979, appellant parachute made her first flying jump, Carey pilot with instructor and During landing Rodekohr. a difficult some target distance from the Ms. Schutkowski Jr., Moench, Douglas J. of Cole and back, leg injuries. arm and suffered She Moench, Cheyenne, appellant. for charging Carey filed an action and Godfrey Nye B. and Julie Tiedeken Paul failing Rodekohr warn Sundahl, Godfrey Cheyenne, ap- parachuting, failing her of risks of and pellee Robert D. Rodekohr. adequately instruct and direct her dur- Whitehead, George Urbigkit, Zunker of ing sky diving procedures. Davidson, Cheyenne appellee Zunker & complaint In their answers to the Carey. Dwain subsequent summary judg- motions ment, appellees appellant’s contended that THOMAS, C.J., Before BROWN* claims were barred JJ., ROONEY, CARDINE, and ROSE and agreement. In this document Ms. Schut- (Retired). JJ. acknowledged kowski that for considera- BROWN, Justice. participate permission tion and in the course, Schutkowski, sky Appellant Barbara * * “ * during diving injured student her first Chey- I Barbara Schutkowski of negligence complaint against jump, filed a enne, Wy myself, my heirs do Carey appellees Dwain and Robert Rode- hereby fully and release and forever kohr, skydiving instructors.1 The dis- her discharge Cheyenne the said Parachute summary judgment trict in a Rodekohr, Cheyenne, Wyo, Club and Bob found that “Release and In- appellees, divisions, employees and their and their Agreement” signed by appellant demnity persons di- whomsoever instructors from all excused the liable, indirectly rectly or including consequences arising injury, demands, and all other claims and ac- appeal Ms. On Schut- tions, action, damages, causes of following raises the issues: kowski costs, services, expenses, loss of claims of whatso- “1. Did the trial court err determin- and all other contracting parties equity, in law and in on ac- that the intended ever both BROWN, J., July prejudice Reassigned him dismissed with on a motion 1986. by his estate on March joined a de- 1. Steven D. Johnson was also against fendant. Barbara Schutkowski’s case of, count or in any way resulting from, would have the effect of establishing or injuries, suffering, conscious refuting an essential element of the death, property damages sustained cause of action or defense asserted by me, arising flights, out of para- aircraft parties. Samuel Mares Post No. jumps, lift, chute other means of American Legion, Department of Wyo ascent, or descent from an aircraft ming v. Board County Commission *3 ground flight, or in meaning and ers the County Converse, Wyo., intending and to include herein all such (1985). 697 P.2d 1040 Upon examination injuries, suffering, conscious of a summary judgment, we view the damage resulting death or property from record from the vantage point most fa any way or in arising connected with or vorable party to the opposing motion, instructions, training, out of ground giving and him all favorable inferences which thereto, operations or air incidental be drawn from the facts. Bancroft foregoing premis- in consideration of the Jagusch, Wyo., v. (1980).” 611 P.2d 819 * * * hereby stipulate, es I expressly Hickman, Garner v. agree (1985). covenant and indemnify Cheyenne hold forever harmless said litigants The agree here on the essential Parachute from Club facts and admit that the release was actions and all other by appellee. However, they disagree on damages claims for whatsoever which interpretation of the contract. Inter may hereafter my negli- arise from pretation and questions construction are wanton, gent, willful or or intentional act law for the court to decide. Amoco Pro or actions.. Company duction v. Chemical Stauffer “The terms of this release and indemnifi- Company Wyo., Wyoming, 612 P.2d 463

cation are contractual and not (1980). Therefore, issues concerning the a mere recital and contain the entire validity of the clause and the between the hereto.” intent of properly be fore the summary judgment. court on The agree- district court found that the Product Research Associates v. ment released from Pacific Telephone Telegraph Company, 16 Cal. granting An summary order App.3d (1971); Cal.Rpt. Jones judgment for defendants was entered from Dressel, Colo., (1981); v. 623 P.2d 370 appeals. which Ms. Schutkowski Ciof Tanney Gyms, alo v. Vic (1961). SUMMARY N.Y.S.2d 177 N.E.2d 925 JUDGMENT The standard of review for summary EXCULPATORY CLAUSE

judgment appeals has been well established by this court. Wyoming exculpa courts enforce reviewing

“When a summary judgment tory releasing parties clauses appeal, we judgment injury damages resulting review the in the negli light same using gence the district if the contrary public clause is not same Randolph Gilpa policy. information. v. Kost v. First Bank National trick Company, Wyo., (1984); Construction Greybull, 684 P.2d 819 Tate Wyo., 702 P.2d 142 and Lane Telegraph Mountain States and Tele Company Development, v. Busch phone Company, Wyo., 647 P.2d Wyo., 662 party Booth, A Wyo., mov Brittain v. summary judgment Generally, specific agreements has the bur ab proving

den of solving participants proprietors the nonexistence of a genuine issue of Dudley negligence liability during material fact. hazardous recre enforceable, Ridge Development East Company, subject ational activities are Material fact willful misconduct limitations. Cain which, has proved, been defined as one Training Cleveland Parachute practical is often ne- a matter App.3d O.R.B. Ohio cessity public. observed The Ohio court some members willing holds himself out as Cain: perform any member of this service for activity is participant “A in recreational public it *. As a who seeks proprietor free to contract with proprie- result of the essential nature of ser- activity to relieve the such so as vice, setting inju- in the economic of the trans- responsibility for tor of neg- action, party invoking exculpation caused participant ries to the except proprietor, advantage when ligence possesses of bar- a decisive misconduct. caused willful or wanton gaining strength against any member of * * ” Id., 457 N.E.2d at public seeks his omitted.]” who services. [Citations Dressel, supra, the Colorado Jones provided by appellees The service four-part developed a test Supreme Court necessity practical not a matter of *4 negligence exculpa- a to determine whether public. member of the It was not an Pennsylvania courts tory clause is valid. service, bargaining essential so no decisive closely adopted which have also standards Further, advantage existed. no evidence case. Liabil- parallel those the Colorado suggests appellant unfairly pres Corporation v. Greenville ity Assurance signing agreement or sured into Association, 288, 423 Pa. Men’s Business deprived opportunity to un she was of (1966). reaching its deter- 224 A.2d 620 implications. The derstand its (1) whether a mination a court considers first three criteria for determin meets the exists; (2) duty public to the the nature exculpatory if the clause is valid. (3) whether the con- performed; the service into; (4) fairly entered tract was is ex-

whether the intention of LIABILITY INTENT TO EXCUSE pressed unambiguous lan- clear FOR NEGLIGENCE agreements guage. Only exculpatory Finally, must determine if the we meeting requirements are enforce- these clearly shows the intent to elimi Dressel, supra. able. Jones v. appellee’s liability negligent acts. nate exculpating policy clauses Public disfavors gen Private recreational businesses negligence, and a court must demanding erally qualify do not as services clauses. Kansas closely scrutinize such public, nor their special duty a to the are Company v. City Light Power & United special, highly necessary na services of Kansas, Company 458 Dressel, supra. Telephone The ture. Cali Jones Sweet, (10th Cir.1972); Court, Supreme Regents F.2d 177 Gross fornia Tunkl 365, 400 424 N.Y.S.2d University California, 60 Cal.2d 49 N.Y.2d 441, 445-446, 33, 36, 6 306 Atlas Mutual Insur Cal.Rpt. 383 N.E.2d (1963), elements Company Dry A.L.R.3d 693 described the v. Moore Kiln Com ance (1979). agreement affecting public Or.App. inter pany, of an clearly exculpatory est: The clause parties’ in unequivocably demonstrate the agreement] concerns a business “[The negligence.2 liability for tent to eliminate thought type generally suitable “negligence” is question The here whether seeking ex- public regulation. The required specific or other words culpation engaged performing a ser- is public, clearly show intent. great importance vice of to the 400 N.E.2d 306 involving N.Y.2d 424 N.Y.S.2d have used similar 2. Cases this issue See, ("unmistakable e.g., (1979) language”); language express Boll v. the standard. Corporation Dohme, Keystone App.Div. v. R.J. En Aeronautics 121 N.Y. Sharpe & Cir.1974) (3d Corporation, ("clear strom 499 F.2d 146 (1953) explicit language”). S.2d 20 (“greatest particularity"): Gross v. disagree specific language Courts though even juris- needed to show such intent. In some words used did not “negligence.” include “negligence” equally dictions the word Jurisdictions interpret exculpatory precise language required is in order to bar language based on the clear intent of the City acts. Kansas parties rather specific than “negligence” Light Company Power & v. United Tele- terminology better characterize Wyoming Kansas, Inc., phone Company supra; law. When interpreting a pri- contract our Sweet, supra; Sharpe Gross v. Boll v. & mary concern is to determine the intent of Dohme, App.Div. N.Y.S.2d parties. Munroe, Wyo., Rouse v. jurisdictions may While these re- Development, Busch Inc. luctantly accept absolving parties contracts v. City Cheyenne, Wyo., negligence, they insist on (1982); Amoco Production Company v. exacting, “unequivocal” language. Gross Company Chemical Wyo- Stauffer Sweet, supra; and Willard Dyke Van ming, parties’ intentions are Products, Compa- Inc. v. Eastman Kodak by giving determined effect to all of the ny, language. contract Sunburst Explora- tion, Jensen, Wyo., 635 P.2d 822 Conversely, the absence of the word interpret We the contract consider- “negligence” is not fatal to an ing the meaning of the document as a many clause in courts terms whole. Kost v. First National Bank of extinguish contract show intent to Greybull, Wyo., Addi- liability. Cain v. Cleveland Parachute tionally, the court must consider the sur- Training supra; LeSueur Cream *5 rounding circumstances, relationship the ery, Haskon, Inc., (8th Inc. v. 660 F.2d 342 parties, the the nature of subject mat- (1981), 1019, Cir. cert. denied 455 U.S. apparent ter and the purpose making in 1716, S.Ct. 72 L.Ed.2d 138 Blide v. contract. Grazing Peters Association v. Inc., Mountaineering, Rainier 30 Wash. Legerski, Wyo., (1975), 544 P.2d 449 reh. 571, App. Hewitt v. denied 546 P.2d 189 Miller, 11 Wash.App. Considering language all of the (1974).3 The facts in Cain v. Cleveland context, in it is clear that the Parachute Training supra, were parties’ intent was to very appellees similar release to the case before A sky us. diving for student a The contract release stating: wording particular focuses attention on the “ ‘ * * * unconditional nature of exculpatory I myself, covenant for my es- agreement. It

tate, specifically repeatedly executor, heirs, assigns not to exempts appellants any responsibility file any procedure suit or initiate claim in potential respect consequences. any personal Wyoming See injuries, property Johnson, damages, Industries, Stag or losses I may experience or arising directly sustain indirectly By signing out my release, Id., activities hereunder.’” Barbara voluntarily at Schutkowski potential against her claims waived persons The Ohio “all narrowly construing directly while whomsoever or indi- * * * language clause, liable, rectly from any and all found expressed demands, that it an intent to limit claims and actions and causes * * * examples accepted by (1981) ("1 3. These hereby contract P.2d assume all Miller, Wash.App. [specified courts: Hewitt v. and will risks] hold [defendant] * * (1974) ("neither any P.2d liability, this class nor its harmless from and all actions * * * may any way every owners any be held liable in demands of kind and nature whatsoever. ** hereby ”); personally Valley Company, occurrence as- Lee v. Sun 107 Idaho * * (1984) ("* sume all risks I further [all SCU- harmless * * agents] any BA every harm Blide v. Rain- and all claim which arise from ** Mountaineering, *.’’). Wash.App. injury ier In case it is difficult to envision other this of action negligence than one based both claim other whatsoever claims way might against ap- had appellant and “in have equity,” law and from, injuries personal not the intent of the resulting pellees. If it was appellees parties to release acts, purpose in we see little leading char- is one of sense Common Agreement. Indemnity the Release and interpretation and contract acteristics Oil Co. Marathon construction. not enter private should Adult (D.Wyo.1975), F.Supp. 1301 Kleppe, 407 for hazardous recreational into a contract Cir.1977); (10th and 17 F.2d 982 aff’d 556 language lightly. The services 243, p. Am.Jur.2d Contracts ap- unambiguous; it shows is the nature of construing this contract In relinquish all intended to pellant of the release the service and against appellees. might she accrue claims Grazing Peters Asso- considered. be exculpatory clause. will enforce the We In Gross Legerski, ciation judgment granting summary The order at at is affirmed. one, this similar to parachuting case dissent contends: the well-reasoned THOMAS, Justice, dissenting with Chief plaintiff was activity on which “The Justice, ROSE, joins. whom tutelage of to embark under about best, one at a hazardous defendants was disposition of I must from the dissent he only claims that virtually the but majority in accordance with the this case de- against them might have had [the majority holding of the opinion. While the in- should he sustain fendants] might appear appropriate all opinion damage would be property juries or the skill of of an effort to learn the context resulting from fault or claims parachuting, I submit that “sky-diving” or majority reads the defendants. The might appropriate not seem as result driving ‘merely home the differ- my judgment other contexts. not to bear the defendant was fact that aptly fit more into over- ent rule would injuries that ordi- any responsibility for Wyoming. policy all of the State occur, with- inevitably would narily and *6 agree- involving indemnity an In a case defendant, to those of the out fault said: ment this court physically de- participate in such a who exculpating one “Generally, contracts But manding sport.’ omitted.] [Citation his own acts consequences of from the practical effect is significance or of what by upon with disfavor the looked is difficult to conceive a release? It such Light City Kansas Power & courts. predicated on other than one of claim Telephone Compa Company v. United property personal injuries or negligence; (10th Inc., Kansas, 177 458 F.2d ny damage occasioned without Therefore, Cir.1972). an defendants would by or both of the one strictly against construed indemnity is of action at all. give rise to no cause indemnitee, the in- particularly when the then, as not if construed The release instru the drafter demnitee was negli- including predicated claims Manufacturing Co. ment. Allison Steel meaning- nothing and is gence, releases County Superior Court in and v. requirement nullity. less and a [A] Pima, Ariz.App. 22 523 ‘negli- the word there be included that means If the indemnitee specific gence’ description or for a upon the indemnitor the loss throw in the com- pleaded acts of misconduct individually himself in he for) fault which (as plaintiff would contend plaint shares, express he must to the ‘semantic be a reversion would doubt. Mos any peradventure beyond now ab- we have stereotypes,’ which * * * ” Co., F.2d L. W.R. Delaware & tyn v. jured. [Citations.] (2nd Cir.1947). The test is whether “Such a rule will nearly most assure that language specifically focus- courts will be identify the contract able to the inten- parties tion of the by on the fact with certainty, es attention and it will have the effect assuming eliminating indemnitor which, ambiguity rule, factor for indemnitee’s own without plague will agreements forever release Industries, Inc., v. Strescon Sweetman Bjork tort actions.” (1978).” Chrysler Del.Super., Corpo- 389 A.2d 1319 Wyo- ration, Wyo., Johnson, Industries, 162-163 ming Stag Wyo., 662 P.2d opt I would for the line of authority considering a settlement requires which “negligence” that the word required which we held was ex- be included in exculpatory agreement press parties the intent of the to release Dressel, Colo., such as this. See Jones v. other said: tortfeasors we (1981); Gross v. public policy “The thrust of the an 424 N.Y.S.2d l-l-113(a)(ii) nounced is to retain Tanney Gyms, Vic Ciofalo tortfeasors, abrogat thus 10 N.Y.2d ing the common-law rule. There Sharp Boll v. phrase pro fore the ‘unless its terms so Dohme, App.Div. 121 N.Y.S.2d 20 narrowly vide’ should be construed. requirement likely This is most Cianchetti, Ohio St.3d Beck [1 alert the other to the extent of the (1982) supra. permit N.E.2d To ] granting release which he is in the con- discharge noncontributing tortfeasors tract, usually which is prepared in advance. plaintiff par only where has received In many respects simply this would seem broad, compensation, upon tial based to be fair. general language identify which does not As I may indicated the result well be tortfeasors, effectively perpetuates appropriate respect para- deemed with English rule contravention chuting activities. I wonder how comforta- intention, legislature’s Beck v. Cianchet this court and ble others will feel with such ti, supra. phrase ‘unless its terms day a rule when it is invoked in favor of (§ l-l-113(a)(i)) provide’ compels so centers; youth activity organizations; care specifical releasor to name or otherwise clubs; public schools; private health ly identify the released tortfeasors landlords; myriad aof of activities order that the intent of the be concept logically to which this can be ex- Cianchetti, fulfilled. Beck v. my tended. Because of concern with the fortified, only These resolutions are not public policy implications holding by of this Cianchetti, Beck v. but other well- submit be rather Airlines, opinions. reasoned See Alaska far-reaching, I would vote to reverse Sweat, [Alaska, Inc. *7 disposition by require the trial court and (1977) State, supra; [Alaska, Young v. ] one is to be released from the conse- (1969)] supra; Alsup quences of his the release own Company, Firestone Tire & Rubber say exactly that and use the word Ill.2d 77 Ill.Dec. [101 negligence specifically. (1984)] supra; Robertson v. McCarte, Mass.App. [13 (1982)] supra; Duncan v. Cessna Company, [Tex., 665 S.W.2d

Aircraft (1984) supra; Klingen McMillen ]

smith, (1971) [Tex., 467 S.W.2d 193 su ]

pra.